Brexit and the British Constitution: Part I. The roots of the Old Constitution.

Introduction.

On April 7, 1960, President Charles de Gaulle addressed the combined houses of parliament in Westminster Hall.[1] He started his allocution in reference to the “immortal glory of Winston Churchill”, and continued a peon of praise to the institutions of the United Kingdom, and its people,  “practicing in freedom a solid and stable regime”. “So strong is your sense of tradition, loyalty and fair play, that your government is endowed with cohesion and permanence, that your parliament over a legislature is assured of a majority, that your government and parliament are permanently attuned, that the executive and legislative powers balance each other out in collaboration, as if to the manner born… (assuring) the good functioning of democracy”. “This is the England, self confident, orderly, ensuring respect for freedom, that inspires France.” As the incarnation of France-the man of June 18, 1940, the day of de Gaulle’s famous speech over the airwaves of the BBC, that the war was not over-De Gaulle and France, in his mind, were one. Michel Debré,  his Prime Minister and his liege man, and the architect of the Constitution of the Fifth Republic, modelled the new Constitution of France on the old Constitution of the United Kingdom.

It is as well to record de Gaulle’s praise as an introduction to a discussion of what has happened since. What follows falls into four parts: the first traces the major milestones of the old Constitution; the second, the Whig spirit which inhabited it and is still widespread in the United Kingdom.The third part surveys the newer elements of the Constitution, the reasons for and against joining what was then the European Economic Communities, notably the central role played by de Gaulle. The fourth part examines the impacts on the UK’s Constitution of the UK’s membership of the “project” from 1972 to the present..

 

The old constitution

In this section, I trace some of the major milestones in the millennial emergence of what came to be known as Britain’s unwritten constitution, in fact written by war, and by statutes, commentaries or judicial pronouncements.

The Norman invasion of 1066.

Duke William of Normandy’s victory at the battle of Hastings proved decisive in the creation of a strong monarchy. William ruled by the sword, and through his curia, but came  to terms with the older Anglo-Saxon and Danish organization of the country into hundreds and  shires, with their courts and sheriffs. For the coming five centuries French was the language of the Court, and English the language of the people, recorded in Chaucer’s Tales of Canterbury or in Wycliffe’s early translation of the Bible. The historian has cast William’s rule as absolutist. More accurately, the chronicler records the Conqueror as fierce. To secure his hold on England, William built castles, including the central keep of the Tower of London, the White Tower. He did so to allow Normans to retreat into safety when facing rebellion, confiscating the lands of most of the Anglo-Saxon aristocracy and replacing them with continental magnates. [2]His rule was harsh: any man who made love to a woman without her concurrence would be castrated. With the French language dominant at the Court, the Church gained greatly in power and wealth, and the domains of successive English monarchs-inherited initially in wide swathes of France-were extended  fitfully into Ireland, and Wales, and only in the seventeenth and eighteenth centuries into Scotland. By the Acts of Union  of 1707,  the sovereign state of Great Britain came into effect, incorporating the Kingdoms of England and of Scotland, the principality of Wales, and the personal kingship of the monarch in Ireland. The three crowns were united in one in 1803.The Anglo-Irish Treaty of December 8 1921 led to Ireland as a self-governing state; northern Ireland remained within the United Kingdom.

 

The Magna Carta of 1215.

Signed in the midst of a civil war at Runneymede, on the river Thames next to the fortress of Windsor, and between a much weakened King John, and his barons, Magna Carta was a grant to all free men in the realm that the royal power would be circumscribed by former oaths, writs and practice:  “No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will he proceed with force against him, or send others to do so, except by the lawfull judgement of his equals, or by the law of the land”. This was the first of four charters issued in the coming ten years, the fourth being reissued in 1225 by John’s son, Henry III, in exchange for a grant of new taxes. This charter, was confirmed in 1297 by Henry’s son, Edward I as part of England’s statute law. Over the coming centuries, the Charter lost some of its significance but interest revived in the late 16thcentury, when lawyers and historians came to believe that there was an ancient English constitution, rooted in Anglo_Saxon times, that these had been overthrown by the Norman invasion, and that Magna Carta had been an early attempt to restore them. Pamphleteers cited the Great Charter  in the years leading up  to the English civil war of the 1640s, during and after the Glorious Revolution of 1689, and in the political battles surrounding the formation of the U.S. Constitution in 1787. The late Lord Denning, considered by Prime Minister Thatcher as  “ probably the greatest English judge of modern times”,[3]has described the Charter as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”.[4]

Simon de Montfort’s 1265 parliament.

Simon de Montfort, Earl of Leicester,  was a French nobleman,  married to King Henry III’s sister, and de facto ruler of England He is remembered as the father of parliament. During his rule, de Montfort first stripped the King of unlimited authority. [5]In 1265, he issued a summons in the King’s name to the counties and boroughs, requiring each one of them to send two representatives, to what had come to be called since the 1230s, the “parliament”, sitting in Westminster and deliberating, intermittently, on the King’s business. The knights and burgesses were to be elected on a restricted franchise by the local electorates of the shires and boroughs, and appointed by local power brokers, notably the sheriffs. It was from this period that parliamentary representation derives, and in particular the tradition whereby citizens elect those who make their laws. The background to de Montfort’s  departure was baronial disquiet at the growth of monarchical power, accompanied by demands  for more control to be exercised over the greater offices of state, manned by bureaucrats, trained lawyers and clergy owing their preference to the King. In 1258, de Montfort had Henry retain the title and authority of King, but established that all decisions rested with the King’s Grand Council, where he held sway. The King escaped, war was renewed, and  at the  battle of Lewes in 1264, de Montfort won a decisive battle against the royal forces. In January 1265, he summoned commoners to parliament as prospective allies against the barons and clergy, now envious of his wealth and power. The parliament sat for three months in early 1265 and has come to be referred to as the first English parliament. De Montfort died in battle shortly afterwards, but the idea of inviting both knights and burgesses to parliaments became more widely accepted under the reign of Henry III’s son, Edward I. By the 14thcentury, the gathering became known as the House of Commons. An Act of 1430, during the reign of Henry VI, regulated  the county franchise for elections to parliament, a measure that lasted on the statute books for the next four centuries. Electors were to be persons resident in the locality, with a freehold evaluated at 40 shillings. By the time of Henry VIII, the familiar shape of parliament, the Lords and the Commons, was well established. 

The growth of the common law.

There is no specific date attached to the origins of the common law, except to point out that it is recorded as being introduced by the Normans, in their determination to extend the king’s peace across his domains, and to provide greater uniformity of law in England. In England, as across the rest of Europe, guilt was as often as not determined by the swearing of an oath, by ordeal by fire or water, or by dual. In 1215, the Lateran Council-convoked by Pope Innocent III- condemned the practice of ordeal as cruel. Other practices were required to replace it. As Tom Bingham writes: “The procedure adopted in England and Wales was the precursor of the trial by jury as we know it today. The defendant was put before a jury and evidence was called against him. One witness, if believed, was enough. The defendant could not himself testify, but could call witnesses if he had any. The jury decided whether he was quilty or not”.[6]“From a very early date, Bingham continues, “ not later than the fifteenth century, the common law of England (the law made and administered by the judges, case by case in the ordinary courts) adamantly set its face against the use of torture and the admission of evidence procured by torture”. Torture continued though to be practiced in relation to offenses against the state, as adjudicated in the royal prerogative courts, notably in the Court of the Star Chamber. As Bingham points out, the exercise of this power became one of the important issues in the struggle between Crown and the parliamentary common lawyers. “One of the very first acts of the Long Parliament in 1640 was the abolish the Court of Star Chamber, in which evidence obtained by torture was received, and since then no torture warrant has been issued in England. By one of the first enactments of the Westminster Parliament following the Act of Union in 1707, Scotland followed suit”.[7]

The first Brexit: 1529.

The proximate cause for King Henry VIII’s break with Rome was infatuation with Anne Boleyn, and his dissatisfaction that his marriage to Catherine of Aragon, who had produced no surviving male heirs, leaving their daughter, Mary, as the heir presumptive at a time when there was no established precedent for a woman on the throne. In his desperation, Henry sought to have the marriage annulled, setting in motion a chain of events that led to England’s schism with the Catholic Church. Initially, he charged his Lord Chancellor, Cardinal Wolsey with the task of negotatiating with Rome. When Pope Clement VII refused Henry’s request, the King took matters into his own hands. He declared supremacy in England over religious matters, making himself “Supreme Head on earth of the Church of England”; forbade obedience of his subjects to the Pope; established that any changes in canon law had to enjoy royal sanction; outlawed the payment of Peter’s Pence to Rome; and passed a Treason Act, punishing by death anyone who denied Royal Supremacy. He then proceeded to confiscate the extensive lands of the monasteries, distributing them to new owners who owed their preferment to the monarch. The Pope excommunicated the King, but to no avail. Through  ta series of  parliament acts between 1532-1537, Henry established the foundations of the modern English, then British state. As Geoffrey Elton has argued, “the political and constitutional expansion of the 1530s produced major changes in the position of Parliament. Long and frequent sessions, fundamental and far-reaching measures, revolutionary consequences, governmental leadership-all these combined with the Crown’s devotion to statute and use of Parliament to give that institution a new air, even to change it essentially into its modern form as the supreme and sovereign legislator”. [8]  That sovereignty spelt rejection of the Pope’s universal claim to primacy and lay at the root of England’s, then Great Britain’s foreign policy to oppose any potential European hegemon, who threatened to impose their empire on Europe and on Great Britain. The foreign policy lasted for the following four hundred and thirty years, until the 1972 European Communities Act stipulated that EEC law reigned supreme over Parliament and courts.

The Petition of Right 1628.

The Petition of Right is a lineal descendant of Magna Carta, as refracted in the words of Henry de Bracton, in his “A Tract on the Laws and Customs of England”, written mid thirteenth century: “The king, writes Bracton,  must not be under man but under God and under the law, because the law makes the king . . . for there is no rex where will rules rather than lex.”[9]

Following disputes between King Charles 1 and parliament over the execution of the Thirty Years war, parliament had refused to grant subsidies to support the war effort, prompting the King to resort to a forced loan, without parliamentary approval and arbitrarily imprisoning those who refused to pay. In addition, by placing the country on a war footing, the King had sanctioned the forced billeting of soldier on the homes of private citizens, and the declaration of martial law over large swathes of the land. Among the recalcitrant, who refused to pay the loan, were five knights, who were imprisoned for their defiance. Each of them sought a writ of habeas corpus, a right first established in English law, in the thirteenth century, to secure their release. But the Crown detained them ‘by special command of his majesty”. Parliament formed a committee, under Sir Edward Coke, who drafted a petition, accepted by both Commons and Lord, and that the King reluctantly ratified on June 7. Invoking Magna Carta, and successive statutes, the petitioners “do humbly pray your most excellent Majesty, that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of parliament; and that none be called to make answer, or take such oath, or to give attendance, or be confined, or otherwise molested or disquieted concerning the same or for refusal thereof; and that no freeman, in any such manner as is before mentioned, be imprisoned or detained; and that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burdened in time to come; and that the aforesaid commissions, for proceeding by martial law, may be revoked and annulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by color of them any of your Majesty’s subjects be destroyed or put to death contrary to the laws and franchise of the land.” [10]The Petition is, along with Magna Carta and the Bill of Rights of 1689, one of England’s three key constitutional documents. It remains in force in the United Kingdom, in many parts of the Commonwealth, and has shaped the U.S. Constitution.

The Glorious Revolution of 1689.

The Revolution of 1689 has been called “Glorious”, first, because one monarch, James II,  was dismissed, and another, William III, Prince of Orange, was imported from the Netherlands,  without blood being spilt; and second, because William, married to Mary, the daughter of James, was not just told, as John and Charles had been told that the law stood above them, but that the throne was theirs for the taking on condition that they accepted the terms on which it was offered.

William and Mary signed the Bill of Rights in the Banqueting House in Whitehall, on February 13, 1689. [11]The Bill is entitled “ An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown”. Following a preliminary welcome to the two monarchs, the Bill lists the deeds of James, “ all which are utterly and directly contrary to the known laws and statutes and freedom of this realm”, it spells out the rights of individuals, the powers of parliament, and the rules to which the Crown is subject. The emphasis is firmly on the latter. No monarch may invoke divine authority in the form of the Papacy to override the law of the land. The authority,  independence and integrity  of parliament was asserted. “Frequent sessions” were to be held. The Bill affirmed “the freedom of election of members to serve in parliament”; there would be no “standing army within this kingdom in time of peace”, nor  “could (any) law be suspended or executed without the consent of Parliament”. Personal liberty, property and security were to be protected by the prohibition of “excessive fines”; or by the outlawing of “illegal and cruel punishments”. Jury trial was secured, as well as “the true, ancient and indubitable rights and liberties of the people of this kingdom”. These measures were complemented by the 1701 Act of Settlement, safeguarding the tenure of judges, and re-affirming the 1679 Habeas Corpus Amendment Act.Scotland kept its own legal system in the Act of Union of 1707, but elements of English law were transposed, such as the abolition of torture, and the two parliaments were merged. “The Britain, writes Bingham,  which emerged from the Glorious Revolution was the one where the rule of law, imperfectly  and incompletely, held sway”.[12]The imperfection was particularly apparent in Ireland, where the Glorious Revolution sowed the seeds of further divisions between what came to be called the “Protestant Ascendancy”, and the majority Catholic population, excluded by law from offices of state, until the reforms of the 1830s.

Lord Mansfield’s judgement on slavery 1772,

Lord Mansfield’s judgement of May 1772 in the Somersett case [13]may be taken as the moment when the movement to abolish slavery was launched in England, ending over sixty years later when parliament passed the Slavery Abolition Act of 1833. The Act came to be applied across the British Empire. There was some sleight of hand involved: former slaves over six years old were re-designated as “apprentices”, and granted their full emancipation in 1838. The Caribbean sugar plantation economy, fed by the slave trade, went in to sharp decline, as the supply of slaves from Africa fell away, and owners had to start thinking about how to retain their labour, or at least get them to treat them well enough to get them to breed. Marginally improved conditions meant higher costs, opening the Caribbean to sharper competition from slave states in the southern states of the USA or in Brazil. Owners, by contrast,  were handsomely compensated, to the tune of  £20 million-equivalent to £16.5 billion in current pounds, and 40% of the Treasury’s average income that year. The monies were raised by loan, which was finally paid off in 2015.

Mansfield was born in 1705, the fourth son of Lord Stormont, a staunch Jacobite and supporter both of the 1715 and 1745 rebellions in favour of the Stuarts. [14]He left Scotland at the age of 14, and worked his way to become  Lord Chief Justice, a post which, Denning writes, he held “with great distinction”[15]for thirty years. Mansfield was particularly versed in Roman law, as expounded in the  Scottish, Dutch and French legal systems, whereby principles are stated and then applied to facts, rather than the English common law system whose practitioners seek to extract the principles from the facts. Denning records that English law in the eighteenth century was notably obscure, and benefitted greatly by the clarity that Mansfield brought to the subjects he treated. He laid down the principles of the law of insurance, bills of exchange and of cheques, principles that have since spread around the world. His method was to consult closely with business people, and apply legal as well as ethical principles to his judgements. Probably his most famous case is Somersett, a slave owned by Charles Stewart, an American customs officer, who sailed to Great Britain for business landing in 1769. Somersett escaped, was recaptured, with the support of sympathisers, was granted a writ of habeas corpus, freed, and obliged to appear before the Court of King’s Bench in early 1772. The case pitted property rights against the rights to freedom. Lawyers for Stuart spoke of the losses incurred by owners if slaves were to be freed, while lawyers for Somersett argued that as soon as slaves set foot in England they were free. As the poet William Cowper put it: “ “Slaves cannot breathe in England: if their lungs receive our air, that moment they are free”. Mansfield was cautious in his judgement. As he wrote later, “the judgement went no further than to determine the Master had no right to compel the slave to go into a foreign country”. [16]

The historian records, however that the judgement was interpreted by lower court judges as outlawing slavery in the UK. Word of the decision spread to Massachusetts, igniting anti-slavery protests in Massachusetts and grave concerns in Virginia. In Great Britain, it helped launch the movement to abolish slavery. Anti-slavery petitioners succeeded in 1807 in having parliament end the slave trade out of British ports; the Congress of Vienna in 1815, with British government backing,  produced the Declaration of the Eight Courts Relative to the Universal Abolition of the Slave Trade; and eventually slavery was abolished throughout the Empire. As Jenny Martinez has argued this measure was seminal in spawning the web of treaties which prohibited the trade, and outlawed slavery.[17]

The Second Civil War: US independence, 1776.

Great Britain emerged victorious from the Seven Years War (1756-1763) as the dominant power in the Americas, in the Caribbean and in India. Flushed by victory, the American colonists expressed loyalty to the monarch, George III, but baulked at London’s pretensions to reserve the lands east of the Appalachians to the Indian nations; to grant legal recognition to the Catholic Church in Quebec, and above all to impose taxation on the thirteen colonies, without their being represented at Westminster. On both sides of the Atlantic, positions were taken in support of monarch or colonial settlers. British opponents of King George’s policy of coercion subscribed, in the words of the famous motion passed in the House of Commons, that “the influence of the Crown has increased, is increased and ought to be diminished.”  Opponents to George III on both sides of the Atlantic were familiar with the theory of the “social contract”, as elucidated by John Locke, the bard of the Glorious Revolution, that the people had a natural right to overthrow their leaders, should the leaders betray the historic rights of Englishmen.[18]

In the words, of Thomas Jefferson, the prime architect of Declaration of Independence-which was unanimously accepted by the Congress of the American colonies on July 4, 1776[19]– “We hold these truths to be self-evident: that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights Governments are instituted among men, deriving their just powers from the consent of the governed ( author’s italics) That whenever any form of government becomes destructive of these ends it is the right of the people to alter or to abolish it, and to institute new government, laying its foundations on which principles and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness”. As Winston Churchill has written, the Declaration was in the main a restatement of the principles which had animated the Glorious Revolution of 1689.[20]

Following the surrender of the British forces at Yorktown, and the signing of the treaties of Versailles and Paris in 1783, significant changes were introduced in British constitutional practice, reducing the powers of the Crown to oppose a party coming to power in Parliament, curtailing the Crown’s powers of patronage, and instituting the novel post of Foreign Secretary. But by far the most far-reaching changes were initiated in the US Constitution, signed by the delegates to the Constitutional Convention on September 1787, and complemented by the Bill of Rights, adopted by the first Congress, in the form of ten amendments to the Constitution, on September 25, 1789. [21]The Constitution sought to create an effective central government while preserving the autonomy of the states; a House of Representatives and a Senate;  the fundamental rights of individuals, notably freedom of speech and of religion; the right to petition and to trial by jury, or the right to bear arms; and most notably, the enthronement of the Constitution “as the supreme law of the land, and the judges in every state shall be bound thereby”. This contrasts with the legislative omnipotence enjoyed by the Crown in Parliament. In Great Britain, the Crown in Parliament is sovereign; in the United States, the law is binding on President , Congress, and judiciary.

The Extension of the franchise: 1832 to 1945.

The twenty years of war with France, starting in 1793 and culminating in the battle of Waterloo in 1815, put paid to the reform impulse stemming for the American Revolutionary wars. Habeas corpus was suspended; dissent suppressed; the country geared for the twenty year war; after a failed attempt at a French invasion of Ireland, the Irish parliament was abolished, with Irish MPs sitting in Westminster; the war was fought in the name of British independence, and European “liberties”-understood as the rights of existing states to prosper- against the pretensions of the Napoleonic empire. With peace, demands for reform broke out anew, culminating in the Great Reform Act of 1832; the ending of religious tests to hold public office or to vote; the opening of British markets to  free trade,  the suspension of the Navigation Acts-obliging imports and exports to be carried in British ships; as well as revisions of the harsh criminal laws, prison reform and the beginnings of social legislation on hours of labour worked and sanitation.

Over the century between 1832 and 1945, the country was transformed. The population of the United Kingdom in 1832 stood at 21 million in 1830; 35 million in 1880; 47 million in 1918; and 49 million in 1945. The proportion of the population engaged on the land decreased from 40 % in 1800 to under 10% a century later, as the urban population grew  to just under 80%. Over 44% of the workforce by 1914 was employed in the broad category of industry and manufacturing. [22]Real GDP per person almost doubled in the 90 years between 1780 and 1870,, about 70% more than both France and Germany. Between 1870 and 1914,  per capita incomes rose even more dramatically. Wealth accumulated to capitalists operating in the industrial and financial sectors, while income from land fell off as imports of food products surged from North America, Australasia, and Latin America. These figures translated into a rise in life expectation, and a population much more engaged in the public affairs of the country.   Life expectation in 1840 for males stood at 45 years; by 1920, the average life expectancy was 55 years, and in 1950, men lived to an average of 66 years.[23]Literacy rates traced the same trajectory. In 1800, they already stood at 65% of the male population; by 1900, the figure was 96%.[24]A wider readership ensued: at the start of the 19th century, the highest-circulation newspaper in the U.K. was the Morning Post  which sold around 4,000 copies per day, twice the sales of its nearest rival. As production methods improved, print runs increased and newspapers were sold at lower prices. By 1828, the sales of The Times were around 40,000 a day, with around 80% of the entire daily newspaper market. In the 1870s, the Daily News sold 150,000 copies a day. By the 1880s, the Daily Telegraph could boast a circulation of 300,000 a day. The Daily Mail became the first British newspaper to sell one million copies in the first decade of the new century. Circulation continued to increase, with sales of The News of the World reaching a peak of more than eight million by 1950.

One fundamental political reform in the years between 1832 and 1945 was the extension of the franchise. The pre-1832 electorate for a UK population of 24 million souls, numbered 516,000 or 5% of adults. The Great Reform Act-sub-titled “An Act to amend the representation of the people”-expanded the electorate to 813,000, far from adequate to challenge the domination of the landed interest in parliament, church and the law, but a marker for future change. Far more indicative of the direction of travel were the Chartists – a working -class movement for political reform- which succeeded in presenting petitions to the Commons, signed by millions of people. The Chartists demands were  for universal suffrage, secret ballots, equal electoral districts, annual parliaments, abolition of the property qualification, and payment of MPs. As it was, the 1832 Act gave political weight to larger constituencies, prompted Whigs and Tories to begin to organize as political parties(by contrast to alternating congeries of interests), and confirmed the growing dominance of the Commons. With the second Reform Act of 1867, supervised by the Tory leader, Benjamin Disraeli, the electorate was expanded to 16% of the adult population, or 2.2 million voters, notably in the boroughs; a further Reform Act of 1884-pushed through by the Liberal leader, William Gladstone-expanded the electorate to 29% of the adult population, or 5.5 million voters. Universal suffrage was finally granted in 1918, under the Liberal-Tory coalition of Lloyd George, expanding the electorate to 22 million. In 1928, the Equal Franchise Act gave women the right to vote in parliamentary elections on an equal basis with women. In 1945, in a population of 49 million, the electorate numbered about 30 million, with total votes cast over 24 million. The turnout, at 73%, was under war conditions relatively low. In the 1950 elections, tournout rose to 84% of the adult electorate.  Mass politics had arrived.

The other major development was the growth in the size and scope of government activities. Demand for reforms of government, law and economy were reinforced by utilitarian ideas, which gained traction in the U.K. through the nineteenth and twentieth centuries. Their patron saint was, and is, Jeremy Bentham, who proposed his “felicific calculus” as the moral measure for policy. His standard holds that “it is the greatest happiness of the greatest number that is the measure of right and wrong.” Good, says Bentham, is what creates maximum pleasure, and minimum pain. He advocated, among much else, the codification of the common law, decriminalization of homosexual acts, abolition of slavery, of the death penalty and of physical punishment; economic freedom-an idea expanded by David Riccardo in his Principles of Political Economy and Taxation,in favour of free trade- and implicitly of more efficient and effective government policy. Bentham is considered as the father of “welfare” economics-the attempt to measure what amounts to the calculus of collective pleasure over pain.

The expansion of government has been essentially a twentieth century phenomenon in the UK. In 1900, general government take of national income amounted to over 10%, where near 50% of expenditures went on defence and 18% on the provision of minimal social services. Government controls over the national economy exploded during the 1914-18 war, to be cut back to about 30% of national income by 1930. At the height of the world war in 1942-43, the government accounted for 63% of national income, and was still at 50% in 1950. Expansion of government activities was accompanied by a proliferation of not necessarily compatible criteria:

  • Government should become more efficient.The Trevelyan-Northcote reforms in 1853 urged an end to patronage and recruitment of a professional civil service by examination. The principal of open recruitment by written examination was made universal in 1870. Efficiency became a bi-word among the “Milner boys” who sought after the Boer War to federalise Britain’s imperial possessions, and whose members then  began to consider alternative arrangements to those based on national self-determination as spelt out in the Versailles and Trianon treaties following the first world war.
  • Government should be by consent:this had been the lesson learnt from the American war of independence. The Durham Report of 1839 on Canadian affairs became the for blueprint for imperial policy. His proposal was to “place the internal government of the colony in the hands of the colonists themselves”, while reserving oversight to the British Crown. One after another, the colonies became self-governing states, as the old Empire was transformed into the present Commonwealth of NationS
  • Government should deliver social justice.Founded in 1884, the Fabian society’s most prominent members were arguably Sidney and Beatrice Webb, the champions of municipal socialism; founders of the London School of Economics;  prominent intellectuals in the Labour party; authors of Clause IV of the Labour party constitution of 1918, calling for “”the common ownership of the means of production, distribution and exchange.”
  • Government should be effective: Thelaissez-faire doctrine dominant over the nineteenth century taught the state to be limited in its activities to ensuring the defence of the realm, and law and order at home.[25]All that changed with the two wars. The lessons from the central direction of the war effort under Lloyd George were applied, and expanded on in the second world war, when resources mobilized for the conduct of the war amounted to around 50% of national income in pursuit of victory. As Taylor writes, by 1945, “Imperial greatness was on the way out: the welfare state was on the way in. The British empire declined: the condition of the people improved”.[26]

Key themes running through the old constitution.

The United Kingdom is one of the very few states in the world not to have a written constitution, or more accurately an uncodified constitution made up of rules that are found from various documents in the absence of a single document. The three main documents of the English Constitution are Magna Carta; the Petition of Right; and the Bill of Rights. The abstract concept of sovereignty-the right to make its own laws- is described in the phrase “the Crown in Parliament”.  The Crown stands in shorthand for the executive powers of central and local government, which in the twentieth centuries greatly increased in size and in the scope of its activities. Parliament is its chief court, first summoned in 1265, well established by the time that Henry VIII broke with Rome, and that has been informed by the principle since the fourteenth century that the laws of the land can only be made or unmade by the representatives of the people elected to parliament. The common law, introduced initially by the Norman monarchs to establish a uniformity of justice across the land, is the law made and administered by judges, case by case in the ordinary courts, where judgements are based on legal precedent, the verdict of a jury, and on the judge’s assessment of the circumstances of the specific case. The constitution’s three pillars are, and have been for centuries, the courts, parliament and executive. The rule of law, famously described by Bracton in the thirteenth century as “no rex where will rules rather than lex”, has been developed by a process of trial and error over the centuries, notably since the Glorious Revolution of 1689 laying the foundations for a constitutional monarchy,  freedom of the press, the rights of individuals against tyranny and abuses of all kinds, the right of appeal, freedom of religion and parliamentary sovereignty. By 1945, this system based its legitimacy and sanction on universal suffrage, on a union of the peoples of the United KIingdom with their inherited constitution as the basis of its deep legitimacy, and not least by victory in  war. Its crowning achievement was to have exported its specific arrangements all over the world, to Canada, New Zealand, Australia, India, Malaysia and the United States. There can be no wonder that Charles de Gaulle’s praise could be so beartfelt. The old constitution of the United Kingdom was the model for the new constitution of the Fifth Republic.

Before turning to the extraordinary story of how the United Kingdom came to doubt in this exceptional legacy, I will discuss in the next section, the arguments  used in favour of its further retention and development, before turning to the arguments in favour of the UK’s arrangements being superceded by the elaboration of a European constitution.

 

 

[1]Discours du général de Gaulle au parlement Britanniquehttps://www.ina.fr/video/CAF89032511

[2]See David Bates, William The Conqueror, Yale University Press, 2016.

[3]Ian Burrell, “Lord Denning,  the century’s greatest judge dies at 100”The Independent. March 6 1999. 

[4]Danny Danziger, John Gillingham, 1215: The Year of Magna Carta,  Hodder Paperbacks. 2004, p.268.

[5]John Robert . Simon de Montfort. Cambridge: Cambridge University Press. 1994 ; Adrian Jobson,The First English revolution: Simon de Montfort, Henry III and the Baron’s War, Bloomsbury. 2012.

 

[6]Tom Bingham, The Rule of Law:, London, Penguins, 2010, p. 15.

[7]Bingham.p.16.

[8]G.R.Elton, The Tudor Constitution: Documents and Commentary, Cambridge, 1960. p. 234.

[9]Bracton, De Legibus et Consuetudinibus Angliae, 4 vols., ed. G. E. Woodbine, transl. S. E. Thorne. Publications of the Selden Society, London, 1968–77.vol 2, p. 33

[10]See The Constitution Society: https://www.constitution.org/eng/petright.htm

[11]https://www.constitution.org/eng/eng_bor.htm

[12]Bingham, p.25.

[13]https://www.accessible-archives.com/2012/11/case-of-somersett-from-freedoms-journal/

 

[14]Edmund Heward, Lord Mansfield: A Biography of William Murray 1st Earl of Mansfield 1705–1793 Lord Chief Justice for 32 years. Barry Rose, 1979.

[15]The Rt Hon Lord Denning, Master of the Rolls, What Next in Law, Oxford University Press, 1982. P.21.

[16]Cited in Adam Hochschild, Bury the Chains: The British Struggle to Abolish Slavery, Macmillan, 2005. P.50.

[17]Jenny Martinez, The Slave Trade and the Origins of International Human Rights Law, Oxford University Press, 2012.

[18]John Locke, Two Treatises of Government, section 222.

[19]https://www.constitution.org/usdeclar.htm

[20]Winston S. Churchill, A History of the English-Speaking Peoples, Volume III, The Age of Revolution, London, cassell, 1957. P.154.

[21]https://www.constitution.org/constit_.htm

 

[22]  See Stephen Broadberry, Giovanni Federico, Alexander Klein  : CHAPTER 3: Sectoral Developments, 1870-1914, UNIFYING THE EUROPEAN EXPERIENCE: AN ECONOMIC HISTORY OF MODERN EUROPE, VOLUME 2,  18 April 2008 File

[23]https://www.kingsfund.org.uk/publications/whats-happening-life-expectancy-uk

[24]David Mitch, “Education and Skill of the British Labour Force,” in Roderick Floud and Paul Johnson, eds., The Cambridge Economic History of Modern Britain, Vol. I: Industrialisation, 1700-1860, Cambridge: Cambridge University Press, 2004. p. 344.

[25]“Until August 1914, a sensible Englishman could pass through life and hardly notice the existence of the state, beyond the post office and the policeman”.  A.J.P.Taylor, English History: 1914-1945London, Penguins, p.25.

[26]Ibid. 727.

About Jonathan Story, Professor Emeritus, INSEAD

Jonathan Story is Emeritus Professor of International Political Economy at INSEAD. Prior to joining INSEAD in 1974, he worked in Brussels and Washington, where he obtained his PhD from Johns Hopkins School of Advanced International Studies. He has held the Marusi Chair of Global Business at Rensselaer Polytechnic Institute, and is currently Distinguished Visiting Professor at the Graduate Schoold of Business, Fordham University, New York. He is preparing a monograph on China’s impact on the world political economy, and another on a proposal for a contextual approach to business studies. He has a chapter forthcoming on the Euro crisis. His latest book is China UnCovered: What you need to know to do business in China, (FT/ Pearson’s, 2010) (www.chinauncovered.net) His previous books include “China: The Race to Market” (FT/Pearsons, 2003), The Frontiers of Fortune, (Pitman’s, 1999); and The Political Economy of Financial Integration in Europe : The Battle of the Systems,(MIT Press, 1998) on monetary union and financial markets in the EU, and co-authored with Ingo Walter of NYU. His books have been translated into French, Italian, German, Spanish, Chinese, Korean and Arabic. He is also a co-author in the Oxford Handbook on Business and Government(2010), and has contributed numerous chapters in books and articles in professional journals. He is a regular contributor to newspapers, and has been four times winner of the European Case Clearing House “Best Case of the Year” award. His latest cases detail hotel investments in Egypt and Argentina, as well as a women’s garment manufacturer in Sri Lanka and a Chinese auto parts producer. He teaches courses on international business and the global political economy. At the INSEAD campus, in Fontainebleau and Singapore, he has taught European and world politics, markets, and business in the MBA, and PhD programs. He has taught on INSEAD’s flagship Advanced Management Programme for the last three decades, as well as on other Executive Development and Company Specific courses. Jonathan Story works with governments, international organisations and multinational corporations. He is married with four children, and, now, thirteen grandchildren. Besides English, he is fluent in French, German, Spanish, Italian, reads Portuguese and is learning Russian. He has a bass voice, and gives concerts, including Afro-American spirituals, Russian folk, classical opera and oratorio.
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