Brexit and the British Constitution: Part III. Efficiency, Parliamentary Sovereignty, Bureaucracy.

The Three Simplifiers.

“What is the origin of this seemingly inexorable tendency to get rid of the old checks and balances, asks Ferdinand Mount, to peel off the ancient gnarled bark and hack away the tangle of intertwining and overhanging branches (of Great Britain’s Constitution)”. [1]His answer: “our own constitutional authorities”. “Bagehot offers us a high-Victorian liberal interpretation; Dicey, a late-Victorian and Ewardian Unionist; Jennings, together with Harold Laski and, later, R.H.S. Crossman, offers a Fabian or Labour version”.  Put more bluntly, all our constitutional authors are Benthamites. Their common  position is that the complex edifice of law and government lends itself to simple answers. Their writings about the British constitution cover the hundred years between Disraeli’s second Reform Act of 1867, to the 1960s, and the accompanying agonized debates about the country’s future direction.

Walter Bagehot and his efficient secret.

In the year 1867-the year when the second Reform Act widened the franchise further-Bagehot describes how the English Constitution operates; he is not concerned about the principles which inform it. Rather, his objective is to explain to business people – the readers of the Benthamite weekly magazine, The Economist, of which he was a famous editor – how this ancient construct actually works, and may continue to do so, he suggests, as long as wisdom prevails. Wisdom consists in not widening the franchise too far to the Great British Unwashed, the ignorant masses whose influence on public affairs he fears above all else.  The only cloud on Bagehot’s horizon came from Liberal party proposals, borrowed from the Chartists, for universal suffrage. As Bagehot argued in The English Constitution, contemporary examples of universal suffrage were not happy. The American Republic, with its separation of powers and dissemination of powers to the states of the federation, had been unable to deal with the burning question of slavery, without going to war. In France, Napoleon III had used the plebiscite as a mechanism to establish his autocracy. But the regime lacked legitimacy. By contrast, the UK, with its curious mixture of ancient and modern, enjoyed a constitution which delivered both efficiency and legitimacy. How it did so was the purpose of his book to explain. Bagehot proposed threekey ideas: first, Bagehot dreaded the urban franchise because its masses were ignorant, and could not be trusted with the vote; second, the Crown represented the dignified part of the Constitution, and was there to “excite and preserve the deference of the population”; third, the efficient part of the Constitution was the Cabinet as the “hinge” between parliament and bureaucracy,

Bagehot’s first concern is that the masses could not be trusted to vote. What he has to say in The English Constitutionwill be only too familiar to readers of the comments sections in The Financial Times in the weeks and months following the June 23, 2016 referendum, delivering a 52/48% majority in favour of leaving the EU. The outpouring of loathing at how the ill-informed masses of British voters, a whole 17.4 million of them, had disrupted the EU party, and wrecked all the fun, was mid-Victorian in its snobbery. Here is Bagehot on the ignorant masses: “the fancy of the mass of men is incredibly weak”; adult suffrage would be a disaster if “the rich and the wise are not to have…more votes than the poor and the stupid”; representatives of the working classes should be termed “member(s) for the public houses”; “the lower orders, the middle orders are still, when tried by what is the standard of the educated ten thousand, narrow-minded, unintelligent, incurious”; “a life of labour, an incomplete education, a monotonous occupation, a career in which the hands are used much and the judgement is used little, cannot create as much flexible thought, as much applicable intelligence as a life of leisure, a long culture, a varied experience, an existence by which the judgement is incessantly exercised, and by which it may be incessantly improved.” Government is best where “you can use the best classes of the respectful country; you can use the worst where every man thinks he is as good as the other”.

Not surprisingly, Bagehot’s view of the man-in-the-street gets him into intellectual quandaries which he slides over with a magicians’s sleight of hand. Here he is proclaiming the cause of self government; “Free government is self-government…The best government of this sort is that which the people think best. An imposed government, a government like that of the English in India, may very possibly be better; it may represent the views of a higher race than the governed race, but it is not therefore a free government. A free government is that which the people subject to it voluntarily choose. In a casual collection of loose people (he refers to immigrant America) the only possible free government is a democratic government.” But in happy nations where votes are weighted, “ a free government is one which decides perfectly according to those votes; an imperfect, one which so decides imperfectly; a bad one, one which does not decide at all”. Bagehot speaks as clear as can be from the grave in his verdict on our 2017-2019 parliament, unwilling to Remain, to vote for former Prime Minister May’s draft Withdrawal Treaty, or to Leave on WTO terms.

Second, the Crown’s new role in the Constitution was to represent the dignified part of the Constitution, its task being to “excite and preserve the deference of the population”.  The role he defines for the Crown flows from his conviction that  the “rich and the wise” rule for the benefit of the country as a whole.  And it is a vital role. “The dignified parts of government are those which bring it force which attract its motive power. The efficient parts only employ that power”. When the state is constituted as is Great Britain, the poor and ignorant are not enthused by the hum-drum affairs of government business. The “ruder sort of men” will gravitate to “some attraction which transcends reality, which aspires to elevate men by an interest higher, deeper, wider than that of ordinary life” “The elements which excite the most easy reverence will be the theatrical elements; those which appeal to the senses, which claim to be the embodiments of the great human ideas-which boast in some cases of far more than human origin”. Such a government, capped by a Crowned head, makes government intelligible to the mass of mankind. It stands for  family,  religion, and morality,  and above all acts as a disguise, a colourful curtain behind which real business is transacted “It enables our real rulers to change without heedless people knowing it”. “We must not let daylight in on magic”, adds Bagehot in deference to human frailties shared by both monarchs and men, and   in a phrase with which Sir Humphrey Appleby would be in complete agreement.

https://www.youtube.com/watch?v=cIYfiRyPi3o

“The characteristic merit of the English Constitution, Bagehot continues, is, that its dignified parts are very complicated and somewhat imposing, very old and rather venerable; while its efficient part, at least when in great and critical action, is decidedly simple and modern.” We have stumbled on a constitution – Bagehot writes in the line of Hume’s barb that the English enjoy their liberty from a  “great measure of accident with a small ingredient of wisdom” – “which – though of the worst workmanship in all out of the way matters of any constitution in the world, yet has two capital merits”: the efficient part of the Constitution, and the “historical, complex, august, theatrical parts, which it has inherited from the past,-which take the multitude, – which guide by an omnipotent influence the associations of its subjects. Its essence is strong with the Gothic grandeur of a more imposing age”.

It should be no surprise that the most Gothic of British Prime Ministers, Benjamin Disraeli, should have disregarded Bagehot on extending the franchise but embraced his ideas on monarchy. At the time of publication, Victoria had retired from public life in deep mourning from the death, in December 1861 , of her beloved Prince Consort, Albert. Initially public opinion proved  sympathetic, but turned more critical as her seclusion from public life dragged out for over a decade. Republicanism began to flourish, with the creation of clubs, new publications and some representation in the House of Commons, most notably in the person of  Sir Charles Dilke.[2]By the time of publication of The English Constitution’ssecond edition in 1872, Bagehot’s tone was much more pessimistic than in the tone of his first edition: the clamour for a widening of the franchise had not abated; the cause of Irish Home Rule was stirring; Napoleon’s autocracy had ended in defeat and the Paris Commune; post-bellum America was scarcely an advertisement for universal suffrage. Yet within four years, Disraeli had the Commons enthrone Victoria as the Empress of India – a titled rescinded in 1947 by the India Independence Act. Disraeli thereby incorporated Victoria as a centre piece to his ambition for a Tory democracy dressed up in the apparel of imperial grandeur, and monarchical pomp and ceremony.

Third, Bagehot rubbished what he called the literary tradition of commentary on the British constitution, whereby he meant the observations by Montesquieu, Blackstone and J.S. Mills  on the working of a separation of powers between executive, legislature and judiciary, and the existence of  a happy balance between monarchy, lords and commons. As A.V.Dicey comments, in his introduction to the eighth edition of The Law of the Constitution, Bagehot ventured his opinion about the United States Constitution in guise of a comparative analysis. “He compared the constitution of England with the Constitution of the United States. But the result of such comparison was, in almost every case, to illustrate some hitherto unnoted merit of the English constitution which was not to be found in the constitution of the great American Republic”. [3]In the United States the “supposed checks and balances” had failed to avert the civil war, and-at the time of writing-to confront the innumerable challenges facing the union after the Confederacy’s defeat. “The Americans of 1787 thought they were copying the English Constitution, but they were contriving a contrast to it. Just as the American is the type of composite governments, in which the supreme power is divided between many bodies and functionaries, the English is the type of simple constitutions, in which the ultimate power upon all questions is in the hands of the same persons”.

“The efficient secret of the English Constitution, he wrote, may be described as the close union, the nearly complete fusion of the executive and legislative powers”. The assertion requires some explanation. A single source of power driving the engine of the state forward is what the Stuart dynasty championed. It is what the British and American Whigs rebelled against.  And its mechanical language, which Bagehot clearly approves, prompted Charles II to ignore the proposal of Hobbes to act as a Leviathan in order to impose an order over the scheming egoisms, driven by greed and fear in relentless pursuit of their own interests at the expense of their neighbours. As Bagehot approvingly writes, “Hobbes told us long ago…that there must be a supreme authority, a conclusive power in every state because it is  “ a unity and a whole”. “The interlaced character of human affairs requires a single determining energy: a distinct force for each artificial compartment will make but a motley patchwork, if it live long enough to make anything. The excellence of the British Constitution is that it achieved this unity; that in it the sovereign power is single, possible and good”.

Was Bagehot presenting a mechanized version of Stuart absolutism where the monarch exerts executive power, progogues parliament, and makes law through a Star Chamber?  It would be an exaggeration to maintain the thesis. Bagehot clearly presents his English Constitution as a delicate mechanism involving Crown, parliament, Cabinet and the “ten thousand” ruling on behalf of a preferably deferential mass, he did so to what may be proposed as the silent applause of the Stuart monarchs, to which Bentham’s family had been originally attached. He is also in many ways a Whig with his own spin; the characteristic of a Whig was, and is to assert that the British Constitution is the excellent result of hereditary wisdom, exploring a tortuous path to more liberty in an ordered society under the rule of law. Bagehot is scornful of the barnacled edifice that makes the unwritten Constitution of Great Britain so unique.  He advises his readers not to be deceived by the British state’s pomp and circumstance, but to focus on its modern parts.

The modern part is his “efficient secret”, the Cabinet upon which “everything which is important in our public business rests and must rest”. The Cabinet fuses the executive, to parliament, party and monarchy, and acts as the driving force of modernity under the show of ancient tradition. “The ultimate authority in the English Constitution is a newly elected House of Commons”. “When sure of the popular assent, and when freshly elected, it is absolute,- it can rule as it likes and decide as it likes”. The peculiar provision of the English Constitution (is that it) places the choice of the executive in the people’s house.” The Prime Minister is chosen by the legislature from the predominant party in the house to rule the nation.”The Prime Minister is at the head of the efficient part. The Crown is…’the fountain of honour’, but the Treasury is the spring of business”. He selects his Cabinet from prominent people in parliament, “under close and imperative restrictions”, but once chosen, it is a committee of the legislative assembly, “with a power which no assembly would..have been persuaded to entrust to any committee.” “It may be said that the House of Commons does not rule, it only elects the rulers”. The Cabinet are the ministers in Cabinet, answerable to parliament, and rawing on the extensive powers of the monarchy.

To summarise Bagehot , the English Constitution worked on a peculiar combination of deference, magic and efficiency. The latter was what drove England Ltd forward. Its progress would be stalled if the urban working class was enfranchised.

Dicey and the Law of the Constitution.

A.V. Dicey’s The Law of the Constitution, published in 1885, is the classic exposition of the inherited British Constitution, presented, as Dicey explains, from a legal perspective. He was born into highly cultured family, received a double first at Oxford, practiced at the bar, and was appointed to the Vinerian Chair of English Law at Oxford in 1882, that had been first held by Sir William Blackstone in the mid-eighteenth century, and that he held until 1909. His central concern was to adapt the old Constitution to the new conditions of an extended franchise, and to do so while preserving the unity of the United Kingdom-that is the 1707 Act of Union, whereby the Kingdom of England and the Kingdom of Scotland became “United into One Kingdom by the name of Great Britain”;  and the Act of Union of 1801, uniting the Kingdom of Great Britain and the Kingdom of Ireland to create the Kingdom of Great Britain and Ireland. His text became what many consider to be the closest that the Great Britain came to a written constitution. But the text is in effect not a lawyer’s listing of rules, so much as Dicey’s exposition of the underlying principles informing the written but uncodified constitution. In this he has had success beyond wildest dreams of most authors: William Gladstone, the famous Liberal party Prime Minister,  was seen reading The Law of the Constitutiondiligently in the House of Commons. “Dicey” is constantly involved in the post-2016 struggle over whether or not the United Kingdom leaves the European Union.

There was much in the long process of democratization of the old Constitution that worried him. As a Benthamite, he gave pride of place to individual liberty; was an ardent Unionist; favoured centralization of authority in the Crown in Parliament; and supported minimalist government – government expenditure in 1900 Great Britain was around 10% of national income per year. Like Bentham, he considered himself a Radical, and unlike Bagehot, whose work he much admired, he favoured the 1867 extension of the franchise. Later in life, he became principal of a working men’s college, supported  equality between white and black in South Africa, and was highly critical of young aristocrats who frittered away their time at Oxford, rather than engage in the arduous task of self-improvement. His critics, though ,  present him as an old curmudgeon, battling vainly against the tides of change. Initially, he favoured votes for women, but changed his mind; he disapproved of proportional representation as strengthening the hands of party bosses in the nomination of parliamentary candidates and the elaboration of post-election coalition agreements.  He campaigned for decades against Irish and then Scottish Home Rule. At the end of his life, he scripted Thoughts on the Union between England and Scotland, in which he insisted that a parliament for Scotland, as for Ireland, would destroy the United Kingdom. To introduce any kind of federal system into Great Britain  would be “a revolution far more searching than would be the abolition of the House of Lords or the transformation of our monarchy into a republic”. “Turn the UK into a federal state, he wrote,  and parliamentary government, as we know it, is at an end”. [4]

In the long introduction to the eighth edition of his magnum opus, published in 1914, he  decried the “increasing evil of our party system”, and lamented the “declining faith in the rule of law”. He observed that the monarchy and House of Lords had lost power to the Commons, where the Prime Minister effectively exercised the sovereignty of the Crown in Parliament through the Cabinet, and as head of the largest party in parliament. In other words, his argument on parliamentary sovereignty – the Crown in Parliament – proved quite compatible with an activist government, capable under Lloyd George of harnessing the resources of Great Britain to victory in the First World War. He lived long enough to form a bridge between the liberal progressivism of late Victorian Britain, and  the collectivist progressivism of early twentieth century Britain. He become the first Professor of Law at the London School of Economics-which had been founded by the Fabian Society leaders, Sidney and Beatrice Webb, George Bernard Shaw and Graham Wallace- and to witness the creation of the Irish Free State in 1921. Upon his death a year later,  Harold Laski-one of the most prominent proponents of socialist ideals in Great Britain during the interwar years- commented that he had been  “the most considerable figure in English jurisprudence since Maitland”- the great historian of English legal history.[5]As a socialist, Laski advocated a coercive state capable of running a planned economy, and in the 1930s proved, like the Webbs, to be an admirer of Joseph Stalin.

Dicey’s belief in parliamentary sovereignty, it may be argued, is almost mystical. In the eighth edition to his Introduction to the Study of the Law of the Constitution, published in 1915, he writes the following: “The sovereignty of parliament is, from a legal point of view, the dominant characteristic of our political institutions. And my readers will remember that Parliament consists of the King, the House of Lords, and the Commons acting together. The principle therefore of parliamentary sovereignty means neither more nor less than this, namely that “Parliament” has the right to make or unmake any law whatever; and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of parliament”  [6]Writing two years later in England’s Case against Home Rule, he is even more vehement: “Under all the formality, the antiquarianism, the shams of the British constitution, there lies an element of power which has been the true source of its life and growth. This secret source of strength is the absolute omnipotence, the sovereignty of parliament”. [7]

Dicey , writes his biographer, Richard Cosgrove, did not deal in shades of grey. He held an an unwavering commitment to economic liberalism and the British Empire,  and  was a systematiser, with a penchant for neat categories. [8]  Not for him, the notion that the existing rule of law may be considered illegitimate; that parliament may make laws that are considered by citizens as tyrannical; that the courts may throw out acts of parliament, as suggested by Sir Edward Coke  in Doctor Bonham’s Case in 1610 ;  or that the British constitution enjoys a separation of powers between legislature, courts, and executive. All these checks and balances fly out of Dicey’s window, his critics urge. To them, he is the high priest of parliamentary sovereignty.  “Dicey’s orthodoxy, writes Mount, still mesmerizes an influential group of politicians and political commentators in Britain, for much the same reasons that it mesmerized Dicey: the fear of the internal crack up of the United Kingdom, reinforced in recent years by the fear of alien incursion from an eventual take-over by the European Community”. [9]

This is “Dicey”, the straw man. There is, though, a different Dicey, more balanced, more nuanced, more questioning. As Mark Walters points out,[10]Dicey did not consider the Constitution as a set of Benthamite rules , but rather “embraced a legal theory that integrated analytical, comparative and normative elements of legal interpretation through discursive narrative about general principles.” He was a systematiser, but , as David Sugarman has argued, “at the time when Dicey was appointed to the Vinerian Chair the need for a more coherent legal scholarship in England was intense”. [11]As the Report from the Select Committee on Legal Education from August 1846 stated, in England or Ireland, there was no legal education “worthy of the name…to be had”. [12]Dicey was also a great admirer of J.S. Mills’ On Liberty, which he categorized as the perfect embodiment of “Benthamite liberalism”. Its “boundary” theory of freedom – I am my own master as long as I do not harm others – came under pressure towards the end of the nineteenth century, with the growing clamour for more state intervention from an extended franchise.  For , as H.A. Tulloch has argued, the political problem of the age became how to form conservative democracies “to give to constitutions resting on the will of the people the stability  and permanence which has hitherto been found only in monarchical or aristocratic states…now that England is becoming democratic, respectable Englishmen are beginning to consider whether the constitution of the United States will not afford means by which…may be preserved the political conservatism dear and habitual to the governing class of England”.[13]

Let the real Dicey speak for himself: “The English constitution”, he writes in his conclusion to The Law of the Constitution, “from its legal side..is seen to consist of two different parts… the one part is made up of understandings, customs or conventions which, not being enforced by the Courts, are in no true sense of the word laws; the other part is made of up rules which are enforced by the Courts, and which, whether embodied in statutes or not, are laws in the strictest sense of the term, and make up the true law of the constitution. This law of the constitution is…the true foundation on which the English polity rests, and it gives in truth even to the conventional element of constitutional law such force as it really possesses. The law of the constitution, again, is in all its branches the result of two guiding principles, which have been gradually worked out by the more or less conscious efforts of generations of English statesmen and lawyers. The first of these principles is the sovereignty of Parliament, which means in effect the gradual transfer of power from the Crown to a body which has come more and more to represent the nation. This curious process, by which the personal authority of the King has been turned into the sovereignty of the King in Parliament, has had two effects: it has put an end to the arbitrary powers of the monarch; it has preserved intact and undiminished the supreme authority of the State. The second of these principles is what I have called “the rule of law”, or the supremacy throughout our institutions of the ordinary law of the land. This rule of law, which means at bottom the rights of the Courts to punish any illegal act by whomsoever committed, is of the very essence of British institutions. If the sovereignty of Parliament gives the form, the supremacy of the law of the land determines the substance of our constitution”. … “the English Constitution is still marked, far more deeply than is generally supposed, by peculiar features, and that these peculiar characteristics may be summed up by the combination of Parliamentary sovereignty with the Rule of Law”.

To summarise: Dicey stands  in the Benthamite tradition as an ardent Unionist, for a unitarian state and champion of an omnipotent Crown in parliament; but he also gives pride of  place  to convention; law, and the consent of the governed. “ Law, Dicey writes in discussing Ireland,, depends at bottom for its enactment on the assent of the nation as represented by the electors”.[14]

Ivor Jennings and the bureaucratic state.

Ivor Jennings was a legal high-flyer, becoming in 1925  a Lecturer in Law at Leeds University at the age of 22.    Six years later, he was called to the bar, and in the following year joined the London School of Economics. His major contributions came in the field of  constitutional law, notably through his The Law and the Constitution,(1933), Cabinet Government(1936), and The Constitutional Laws of the British Empire (1938), which later became Constitutional Laws of the Commonwealth(1938). His books went through numerous editions, and in 1942, at the age of 40, he was sent to Ceylon by the British Government as Principal of University College, Colombo. His mandate was to set up the University of Ceylon, on the model of the University of London. He had an advisory role in drafting the Constitution of Ceylon, and was a member of the Reid Commission (1956-1957), which drafted the Constitution of the Federation of Malaya (now Malaysia). In his later years, he took up the post as Master of Trinity Hall, Cambridge, served a term as Vice-Chancellor of the University, and died from cancer at the age of 62, working to the last moment on the third edition of Cabinet Government;  his The British Constitutionwas published posthumously, in its fifth edition, in 1966. In it, Jennings  recorded the prestige of the House of Commons, the authority of the Speaker, the stability provided by a government enjoying a majority through a party system which provided voters with clear alternatives, and a government with the Cabinet’s authority to deliver on its mandate. The European Economic Community was not mentioned at all.

Jennings wrote during the high noon of managerialism, which may be dated for the sake of convenience from the 1920s through to the 1970s, a decade or so after Jennings’ death. There were two broad strands to this doctrine: On the political side, the champions of  a planned economy were the founders of the Fabian Society, Sidney and Beatrice Webb, who in 1918 drew up the Constitution of the Labour Party. Its purpose was “ to secure for the producers by hand or by brain the full fruits of their industry and the most equitable distribution thereof …that may be possible upon the basis of the common ownership of the means of production, and the best obtainable system of popular administration and control of each industry and service”.[15] Distribution of wealth would no longer be predicated on “the individualism that characterised all the political parties of the past generation, and that still dominates the House of Commons”. It would be achieved by rational planning , the most avant-garde model for which was under development in Soviet Russia. In 1935, the Webbs produced Soviet Communism: A New Civilisation?, a panegyric to Stalin, that the English historian, A.J.P. Taylor, correctly dismissed as “the most preposterous book ever written about Russia”.[16] The book went through six editions, until the post-war years when its popularity faded.

On the business side, Adolph A. Berle and Gardiner C. Means, in their book, The Modern Corporation and Private Property, published in 1932,argued that dispersed shareholders had yielded actual control of corporate policy to managers.[17] In such corporations, the management process depended heavily on co-ordination by committee; control inside the corporation over the tiers of managers required the organization to be run through capital budgeting techniques; and sales depended on the availability of consumer finance to bring the customer to buy. Business, in short, was a collective undertaking.

The synthesis, to use the Marxist paradigm, of these two seemingly opposite positions was made by James Burnham, originally a militant in the Trotskyite Socialist Workers’ Party, who argued in his The Managerial Revolution: What is happening to the world (1940) that a new ruling class was emerging. Socialism, he observed, was not winning out anywhere. Quite the contrary, a new class of bureaucrats and managers had emerged since the end of World War I. Their sense of entitlement , just as pronounced as the aristocracies they replaced, was evident in their drive  towards “social dominance, for power and privilege, for the position of the ruling class”. [18]This dominance by the new bureaucratic and managerial élite over the mode of production was common, he suggested, to the economic formations of Hitler’s Germany, Stalin’s Russia and the New Deal of Franklin D. Roosevelt.  The  publication of his book coincided with the rush to Washington D.C. of leaders from business, finance and law to lay the foundations for victory in 1945. The rush announced the marriage between big government and big business that laid the basis for the hegemony of managerialism in the decades following allied victory in 1945.

In the same year as Burnham published his book, Jennings published a Federation for Western Europe(1940). [19]The idea was very much in the air at the time. The paradox in British post war politics had been that liberal ideas on Europe can be said to have triumphed while the old Liberal party of Gladstone and Lloyd George was marginalised politically. As the League of Nations proved unable to preserve the peace and prosperity of Europe, British liberals in the inter-war years set their minds on how to preserve the peace: one method was to concede to Hitler’s demands for revision of the treaty of Versailles. Lloyd George, as Prime Minister unofficial emissary, met Hitler at the Berghof, and reported that the German people wanted peace.[20]  Peace, not to put a finer point on it, was not  Hitler’s priority. The other avenue was to promote a United States of Europe (USE). Arthur Salter, Jean Monnet’s close companion, proposed applying Prussia’s method of creating a Zollverein to the unification of Europe.[21]Lionel Robbins, based at the London School of Economics, wrote in 1939 that “unless we destroy the sovereign states, the sovereign states will destroy us”.[22]That year, Lord Lothian, soon to become UK Ambassador to Washington DC, advocated one European state with its own currency, trade and defence policy.[23]Through the cross-party Federal Union, set up by the Fabian Society, they sought to broadcast  ideas as an alternative to Hitler’s racial New Order. Jenning’s book was written independently of the Federal Union, but with the backing of Sir William Beveridge, one of the Union’s leading lights and, later, author of the Beveridge Plan to endow the country with a fully fledged welfare state. The book, in Jenning’s words, is predicated on the “desirability of replacing international anarchy by international government”, and that “ a large number of difficulties which vex the world can be solved by the establishment of a democratic federation in Western Europe”. [24]

The muting of state sovereignty is not a problem which Jennings addressed. But bureaucracy assuredly was. He came to the theme of planning through his studies on the development of local government, which he correctly pointed out Dicey had failed to mention. Dicey’sThe Law of the Constitution, Jennings dismissively asserted,  is “a book of profound historical influence which need no longer be read”. [25] By contrast,  Jenning’s writings are suffused with the optimism that a better world could be created by grafting the old, on to the new. The new was of course the progressivism of the inter-wat years. His studies brought him to the LSE, to the Webbs, and also to his colleague, Harold Laski, the highly influential public intellectual and prolific author. In his unpublished autobiography, Jennings distanced himself from Laski, stating that “although he was a Fabian in outlook, he never joined the Fabian Society, and had not much sympathy with Beatrice and Sidney Webb”. [26]  As Martin Loughlin writes, Laski’s views on constitutional matters came close to those of Jennings, [27]but Laski’s were based on a commitment to Marxist theory which Jennings never shared. He was too impressed by the fluctuations of opinion over time, the influence of political culture on events, and the idea that a constitution was “more than a tissue of laws”, to share the crude determinism of Marxist thinking.

His prime concern was to reconcile the collectivism of a more democratically governed country, to its traditional liberties.  Dicey, he argued in The Law and the Constitution,went about it the wrong way. was analyzing his own subjective norms as if they were the firm principles of the English Constitution. “He was imagining a Constitution dominated by doctrine of laissez-faire.” [28]Dicey was, wrote Jennings, the great classical authority on the legal principles of the English Constitution, but he was mainly concerned with the protection of private property. In Dicey’s favour, he was rightly concerned with the ways that citizens could redress wrongs, were protected against arbitrary government by habeas corpus, and could speak their own mind without fear. What Dicey, Jennings argued, had called the “period of collectivism”, had changed the constitutional organisation, the practice of government and the principles of political action. As Mount correctly points out, Jennings set himself the task of embedding the new Fabian institutions in the British “way of life”.

What had to be embedded was bureaucracy, the new managerialism. Bureaucracy had grown as a result of the widening of the franchise. Vast new powers had been conferred on  public authorities in the process. With an extended franchose, party discipline had hardened; political parties competed for votes through manifestos, to be implemented through the dominant party’s control of the Cabinet. Central administration supervised the expanding realm of local government powers. Governments had now to consult with outside corporate bodies, such as the Trade Union Congress, the powerful association of local government, and with farm and business interests. Statutory bodies, such as the Central Electricity Board, the Sugar Commission,  the Herring Fisheries Board, and a myriad of other organisations were being created every year. “It is obvious, he writes, that large special powers must be vested in the hands of administrative authorities on account of the special functions which they have to perform. It is equally obvious that the nature and extent of these powers puts them in a position to injure a private citizens far more seriously than a private citizen can”. [29]The United Kingdom should learn from the French example of administrative courts, “to investigate complaints against administrative authorities”.  But it should do so through its own institutional heritage. What Dicey failed to mention, Jennings points out, are the “prerogative writs and other remedies, which enable the administrative authorities to be controlled almost as well as the Conseil d’Etat controls the French administration”.  There was, Jennings argued, plenty for the British constitutional lawyer to learn from the French constitutional lawyer.

The problem for Jennings, as a progressive “producers by brain,” was how to update the near three hundred year old uncoded constitution of Great Britain and yet stay true to its spirit. The United States, he maintained, had much the same problem, given that the provisions of the American Constitution, had been drawn up “before the development of modern industrial society”.[30] Like Felix Frankfurter, the US Supreme Court Justice who became the advocate of the view that courts should not interpret the constitution in such a way as to impose sharp limits upon the authority of the legislative and executive branches, Jennings was convinced that there was no better way of embedding the new state bureaucracy in the inherited British constitution than through the device of conventions. “The short explanation of the constitutional convention, he writes, is that they provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas. A constitution does not work itself; it has to be worked by men. It is an instrument of national co-operation, and the spirit of co-operation is as necessary as the instrument”.[31]As Jennings pithily states, conventions enable a rigid legal framework…to be kept up with changing social needs and changing political ideas”. They  “enable the men who govern to work the machine”.

The prime vehicle for getting things done is the Cabinet-the heir to the royal prerogative- which, to use Bagehot’s phrase,  is “ a combining committee– a hyphen which joins, a buckle which fastens, the legislative part of the state to the executive part of the state. In its origin it belongs to the one, in its functions it belongs to the other.” Here Jennings is in accord with the mid-nineteenth century liberal. But only because Bagehot’s efficiency principle in government provides a mandate for extensive action. The supremacy of parliament, writes Jennings approvingly, means a strong executive, capable of taking decisions and, within the limits of political expediency, forcing them upon the country. [32]Those limits stretch a very long way. “..Parliament may remodel the British Constitution, prolong its own life, legislate ex post facto, legalise illegalities, provide for  individual cases, interfere with contracts and authorize the seizure of property, give dictatorial powers to the Government, dissolve the United Kingdom or the British Empire, introduce communism or socialism or individualism or fascism, entirely without legal restriction”.[33]

The UK has no constitution which delimits the powers between executive, legislature and judiciary. In the UK, the courts are subordinate to the legislature, and judges cannot affix liability except where authority has been established as a separate statutory entity. Judges have been given their independence, by statutory authority in the Azct of Settlement of 1701.Ultimately, what keeps the UK free is not the doctrine of separation of powers, hut democracy – the sanction of elections. “The need for independent judges is sufficiently obvious…, he writes,..and though it is not possible to determine what functions should be exercised by Parliament and what by administrators, it is clear that, so long as the major principles of policy are determined by Parliament, the application of these principles to current problems can be left to administrators. The safeguard against bureaucracy or tyranny lies not in a precise delimitation of functions, but in democratic control through an elected House of Commons in which the Party system makes criticism open and effective”. [34]

In conclusion, all three of the United Kingdom’s prime constitutional authorities over the hundred years separating the 1860s and the 1960s were Benthamites, grand simplifiers each with their own spin. It is worth noting that Bentham was born into a family favourable to the Stuart dynasty, a dynasty which favoured strong government, and regularly ran into parliamentary opposition. The solution of the Glorious Revolution of 1689 was to lay the foundations for the constitutional monarchy. According to this formula, the Crown in Parliament is sovereign, but answerable to the electorate through regular elections, subject to inherited conventions and laws, the latter of which are regulated by the courts.

Over the hundred years of our three constitutionalists, major changes took place, but all were absorbed into the fabric of the the inherited order. These changes included: the extension of the franchise until universal suffrage was achieved in the years following the first world war; with the trend towards universal suffrage, parties campaigned on a manifesto; all parties tended to centralise control over their members; the aim was to win a mandate to enact the  manifesto, reducing thereby the independence of MPs to exercise their own conscience, as Edmund Burke affirmed was their duty  in his famous letter to his Bristol constituents; MPs became voting fodder,  dependent for their political careers on towing the party line, as defined by party whips; the winning party held all the levers of power , answerable only to the electorate in the forthcoming election, partly answerable to the courts and at the mercy of the media. In effect, the extension of the suffrage and the growth of bureaucracy brought the United Kingdom full circle to the fundamental questions asked during the turbulent seventeenth century: by what right do you rule? The answer of 1689 ran: The Crown reigns supreme with the consent of parliament.

This is where our three Benthamites join the debate.  Bagehot is the  high-Victorian liberal, writing in the aftermath of the 1832 Reform Act, which dented the dominance of the Whig and Tory aristocracy, and pointed the way to a widening of the suffrage.  Dicey is the late-Victorian and Ewardian Unionist, who wrote at the time of Charles Stuart Parnell’s leadership of the Irish nationalist cause in the 1880s. Jennings is the Fabian who writes after 1918, the extension of the franchise and the demonstration that the state could muster unparalleled resources to wage war. Jennings argued the case that if the British state could do modern warfare, it could also  do welfare. It could do so simply by stretching conventions to fit his bureaucratic leviathan into the inherited Whig and Tory state. Jennings, in short, was an early protagonist of Herbert Morrison’s quip in response to the question: what is socialism?  “What the Labour party does”, came the pragmatic reply.

What is surprising is how much all three still  speak to us.  Bagehot strikes a very modern note in his hostility to a mass franchise: the response in the comment columns of the FT to the results of the June 23 2016 referendum results illustrate only too well that mid-Victorian hostility to the verdict of universal suffrage in the UK is alive and well. Dicey considers that the widening franchise has to be absorbed within a sovereign parliament of the United Kingdom, and must never concede to the demands of  Celtic nationalisms. Jennings rejects Dicey as a late Victorian liberal, but concurs with his concept of Parliamentary supremacy as providing the legitimacy  which the bureaucratic state needs. All accept Bagehot’s analysis of the Cabinet as the efficient secret of the British Constitution, the ” buckle which fastens, the legislative part of the state to the executive part of the state.”  All analyse the Constitution in terms of getting things done: implementing liberal economic policy for Bagehot; an absolutist interpretation of the powers of the Crown in Parliament for Dicey; the expanding agenda of the Fabian state for Jennings. All are élitist, and concur on the utility of  deference and the  magic of tradition. Our man in Whitehall, is comfortable with all three. The UK may be an elective dictatorship for the duration of a government, but the Crown in Parliament, as Dicey writes,  is   accountable to law, convention, and the sanction of popular support. Legitimacy of the British Constitution, as Jennings argues,  rests ultimately  on the sanction of the electorate at regular elections. Democracy, he argues, is the ultimate guarantor of freedoms, not the separation of powers as is the case in the US Constitution.

All three have little to say about tyranny – yet rejection of tyranny lay  at the root of the Glorious Revolution of 1689.  Its instigators rejected James III’s efforts “to subvert and extirpate the protestant religion, and the laws and liberties of this kingdom”. That is why its advocates asserted the foundations of what came to be called a limited monarchy, a monarchy whose great powers could only be enforced with the consent of Parliament, and that the proceedings in Parliament could not be impeached or questioned in any court or place out of Parliament. This is the essence of the Constitution on to which an elitist, unitary and bureaucratic state has been grafted. As David Lindsay Keir wrote in his constitutional history of  modern Britain,   first published in 1939: “The danger (of such a state) is that law comes to be laid down by an authority other than that of Parliament, and that its formulation by discussion and consent is being replaced by the arbitrary feat of officials. Against, this no adequate safeguards exit”.(35)

The next section addresses the question of how the Heath government came to decide, with the support of the Jenkins’ wing of the Labour party, that the  answer to an overbearing state was to be resolved by  joining the EEC. We start in the midst of the first world war, and take the story through to 1973. In reality, what Heath and Jenkins achieved, from the perspective of constitutional history,  was for the bureaucratic state of Britain to join in the bureaucratic alliance of states that underpinned the supranational and supposedly apolitical bureaucracy of the EU.

[1]The British Constitution Now, p.36.

[2]Norbert J.Grossman, “Republicanism in nineteenth century England”, International Review of Social History, Vol 7, Issue No 1, April 1972, pp.47-60.

[3]A.V. Dicey, Introduction to the Study of The Law of the Constitution, Liberty Fund, published in 1982, with a forward by Roger E.Michener, p.xci.

[4]Quoted in Federinand Mount, The British Constitution Now, p. 50. Fn 30. England’s Case against Home Rule, London, John Murray, 1887, p.176.

[5]The Nation and Atheneum, Vol 31, April 15, 1922. p.77. Quoted by David Sugarman, “Review: The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science”. The Modern Law Review. 46 (1): 102–111. 1983.

[6]Dicey, Introduction, p.xxxvi.

[7]England’s Case, 1887, p. 168.

[8]Richard Cosgrove, The Rule of Law: Albert Venn Dicey, Victorian Jurist, London, MacMillan, 1980, p.8

[9]Ferdinant Mount, The British Constitution Now, p. 61.

[10]Mark D Walters, « Dicey on Writing the Law of the Constitution” Oxford Journal of Legal Studies, Vol 32, No 1(2012)pp.21-49.

[11]David Sugarman, “Review: The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science”. The Modern Law Review. 46 (1): 106. 1983.

[12]Ibid. “Review”: pfn 32. Report from the Select Committee on legal Education, August 25, 1846, H.of C, 686.

[13]See H.A.Tulloch, “Changing British Attitudes towards the United States in the 1880s’ The Historical Journal, Volume 20, Issue 4, December 1977 , pp. 825-840

[14]A.V.Dicey, A Leap in the Dark,or Our New Constitution: an examination of the leading principles of the Home Rule Bill of 1893, Reprint, Bibliobazaar, 2008. p.109.

[15]Sidney Webb, The new Constitution of the Labour Party: A party of Handworkers and Brainworkers. The Labour Programme and Prospects. Labour Party leaflet No 1. 1918. p.3.

[16]“The Left’s ace of clubs, The Guardian 7 July 2001.

[17]Adolph A.Berle and Gardiner C.Means, The modern corporation and private property. London: Transaction Publishers, New Brunswick, Transaction Publishers, 1932.

[18]Burnham, The Managerial Revolution, p. 71

[19]W.Ivor Jenkins, A Federation for Western Europe, Cambridge University Press, 1940.

[20]Nazi Regime. Lloyd George’s visit. Hitler’s Hold on People. Desire for Peace,” The Post September 23, 1936.

[21]Arthur Salter, The United States of Europe and other papers, New York, London, Reynold and Hitchcock, Unwin, 1933.

[22]“Only by …pooling some part of national sovereignty in a common organism which represents not the national institutions or the governments, but the people of all the member states…”. Lionel Robbins, in The Economic Causes of War, reprint, New York, Howard Fertig, 1968. Original 1939. p.105.

[23]Walter Lipgens, Wilfried Loth, Documents on the History of European Integration : Plans  for European Union in Great Britain and in Exile, 1939-1945, Volume 2. Mouton de Gruyter, 1986. p.38.

[24]A Federation for Western Europe, p.2.

[25]W.I. Jenkins, Review of Law of the Constitution (9thedition), 1940. 3 MLR 321,322. Quoted in Mark D. Walters, “Dicey on Writing the law of the Constitution.”

[26]A.W.Bradley, Sir William Ivor Jennings: A Centennial paper, The Modern Law Review,67 (5) MLR; pp. 716-733. 2004, p. 724.

[27]Cited in A.W. Bradley, p.724. fn 40.

[28]W.Ivor Jennings, The Law and the Constitution, University of London Press, 3rdedition, p.p.55.

[29]The Law and the Constitution, pp.207-208.

[30] Jennings, The Law and The Constitution, p.239.

[31]The Law and the Constitution, pp.80-81.

[32]The Law and the Constitution, p. 169.

[33]The Law and the Constitution, pp.137-138.

[34]The Law and the Constitution, pp.283-284.

[35]The Constitutional History of Modern Britain since 1485, Adam and Charles Black, 9thed, 1969, p.525.

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.
This entry was posted in Constitutional law, India, United Kingdom and tagged , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.