Brexit and the British Constitution: Part V. Modernisation or Vandalism?

This is the last in the series of articles on Brexit and the Constitution. It is based on four books which have dealt with the subject over the last twenty years: Vernon Bogdanor, Professor of Government at King’s College, London, and author of Beyond Brexit: Towards a British Constitution, London, I.B.Tauris, 2019 and of his earlier The New British Constitution,  Oxford, Hart, 2017. Anthony King, Professor of Government at Essex University, presents  The British Constitution, Oxford University Press, 2007; and Ferdinand Mount, who served as head of Prime Minister Thatcher’s Policy Unit, writes The British Constitution Now, London, Heinemann, 1992. Mount’s book was recorded, at the time of publication, as the first reassessment of the British Constitution for half a century.

Our three authors share a common theme, which Anthony King expresses in its bluntest form. “The thesis of this book, he writes, is that the long era of constitutional continuity portrayed in the old textbooks, is now ended (and) that continuity and gradual evolution have given way to radical discontinuity and that the traditional British constitution – the constitution of Clement Attlee, Harold MacMillan and Edward Heath as much as of W.E. Gladstone and Benjamin Disraeli- no longer exists”. (pp.2-3) In British Constitution,  written after the June 23 2016 referendum to exit the EU, Bogdanor can confidently state that “We are now in transition from a system based on the sovereignty of a constitution,  that is inchoate, indistinct and still in large part uncodified. But we are gradually becoming a constitutional state”.(Introduction. p.xiii). Two years on, into the melodrama of Theresa May’s Premiership, his tone is less confidant. “…the central theme of Beyond Brexit is that the constitutional problems likely to result can only be resolved by radically rethinking of  our constitutional arrangements and moving towards a written or codified constitution”. (Introduction. p.xi)

In what follows, I sketch the main constitutional features  of the 150 years between  1867 to 2020; discuss the ongoing debate about the constitution under the rubric of “the great simplifiers”; and then review some of the main themes of our authors, starting with Mount, followed by King and ending with Bogdanor.

A short reminder of constitutional history from 1865 to 2020.

Let us identify eight longer-term developments affecting the working of the constitution over this century and a half.

  1. The extension of the franchise: The moment when the old aristocratic constitution began to change towards its recognisably modern form may be dated as 1867, when Prime Minister Disraeli’s government passed the Reform Act., extending the vote to working men. The suffrage was further widened in 1884. In 1919, the franchise was extended to all men over 21. Women gained electoral equality with men in 1927. The suffrage increased over these years from just under 761, 000 voters to 21.6 million in 1929. In the general elections of 1950, 28 million votes were cast. Since the 1960s, turnout has tended to fall, party political membership has declined, and since entry to the EEC, the format of elections has become more diverse: one-person-one-vote for Westminster; proportional representation for devolved administrations,  London mayorality and European Parliamentary elections;  and referenda, raising the question: who governs? Parliament or People.
  2. Monarchy: from Empire to Commonwealth: In 1876, Disraeli had Queen Victoria proclaimed Empress of India. Her Golden and Diamond Jubilees, celebrated in 1887 and 1897, were grand occasions to celebrate the Empire and the Queen’s Majesty. In India, the durbars of 1877, 1903 and 1911, marked the confirmation of the Raj. In 1919, Parliament passed the Government of India Act, pointing the way – in George V’s words – “to full responsible government”. The Statute of Westminster in 1931 made the Dominions sovereign nations in their own right. In 1935, the ground was laid for an All India Federation, and in 1949, an independent India opted to remain in the Commonwealth as a Republic.
  3. Ireland: The extension of the suffrage led to a strong Irish Nationalist presence in the Commons. Prime Minister Gladstone presented the first Home Rule bill in 1886, but it split the Liberal party; Gladstone presented a second Home Rule bill in 1892, but it was defeated in the House of Lords. Prime Minister Asquith had the Home Rule Act passed in 1914, but it was suspended for the duration of the war. In 1918, Sinn Fein declared independence, leading to civil war, and ending with the Anglo-Irish treaty of 1921. The final political links with the UK were terminated in 1948, ending Ireland’s status as a British Dominion. Meanwhile, northern Ireland was governed out of the Stormont parliament. Nationalist outrage at Ireland’s continued division broke out anew in the late 1960s.
  4. The House of Lords: The traditional definition of the British constitution is of the Crown-in-Parliament , where parliament includes both the Houses of Lords and Commons as equal partners. In 1911, the Liberal government passed the Parliament Act, which prevented the Lords from blocking legislation for more than two years, and removed the right to delay money bills. In 1949, the House of Lords’ powers were further reduced to being able to delay legislation proposed by the Commons for no more than one year. In 1958, life peerages were instituted, and in 1998, the hereditary peerage was ended, but for the continued presence of 92 hereditaries. The House of Lords was now in the anomalous position of being an appointed legislature. The process of appointing peers greatly increased the Prime Minister’s powers of patronage. Its membership swelled in numbers, but the Lords with far fewer hereditaries became more  assertive.
  5. EU membership, 1972-2019: In the 1972 European Communities Act (ECA), Section 2 recognised the supremacy of EU law, and granted extensive powers to make secondary law to Whitehall. The dominance of the House of Commons as the fulcrum of governance lasted from 1911, when the Lords powers were curtailed,  to 1989, when in the Factortame case, the law Lords over-ruled an Act of Parliament in the name of the primacy of EU over national law. The first two decades of membership had promoted momentous changes in the constitution. For the first time since Henry VIII”s break with Rome in 1534, the British government recognised the supremacy of an international instance. The UK was the only member of the Commonwealth which was not self-governing. The courts, formerly interpreters of parliamentary statute and guardians of the common law, became constitutional courts, adjudicating on the claims of EU/EC law. Most importantly, membership shattered the deep consent which the people of the United Kingdom gave to the inherited constitution. The right of the electorate, inherited from the fourteenth century, to dismiss their own legislators was in effect repealed. The role of MP was thereby belittled. Laws, regulations, and secondary legislation would be now  made by “Brussels”, in conjunction with Whitehall civil servants. Parliament in Westminster was further sidelined.
  6. Labour under Blair drops nationalisation…: The 18 years of Tory government from 1979 to 1997 saw deep reforms made to the Labour settlement of 1945. Capital controls were ended; key nationalised industries were privatised; labour relations, and large swathes of financial markets, were subject to statutory law for the first time ever. Seeking to end its years in opposition, Labour became nominal enthusiasts for EU membership; accepted the Thatcher reforms; but espoused constitutional reform as their flagship policy. This meant devolution of powers from Westminster and Whitehall to Scotland and Wales; and step-by-step moves towards a written constitution, as proposed by left intellectuals in their manifesto, Charter 88. The Charter called for a new “constitutional settlement”. Its ideas entered the bloodstream of now re-branded New Labour.
  7. ..and goes for constitutional tinkering: The years 1997-2010 witnessed a tsunami of constitutional reforms, amounting to  purposeful dismantling of the inherited constitution: granting of independence to the Bank of England (1997); reform of the House of Lords (1998);  referenda on devolution in Scotland , Wales and London, followed by the creation of the Scottish Parliament , the Welsh Assembly and an elected mayor of London (1998-1999); a precarious settlement in northern Ireland, with the signature to the Good Friday Agreement; establishment of  a Supreme Court (2005) as the upper court of appeal for civil and criminal cases across the United Kingdom; abolition of the ancient office of Lord Chancellor, thereby emphasising the separation of judicial powers from what the reformers called the executive and the legislature; passage of the Human Rights Act (1998),  incorporating the European Convention of Human Rights into British law; creation of the Electoral Commission to regulate referenda and elections (2000); sought, but failed to create electoral regions across England in line with  EU policy on a “Europe of the Regions”; the Civil Service Act (2010) defined the “values” of the civil service to replace the convention whereby civil servants, like officers in the armed forces, swore allegiance to the monarch.
  8. Cameron and May as heirs to Blair: Constitutional tinkering continued apace under the Tory governments of 2010-2020. The Fixed-term Parliaments Act (2011), introduced fixed term parliaments of 5 years; the European Union Act (2011) legislated that any further transfer of powers to the EU would have to be endorsed by referendum; at Lib Dem behest, a referendum was held in May 2011 on whether or not the UK should adopt a system of Alternative Vote to elect MPs to Westminster; the electorate voted overwhelmingly by 68% to retain first-past-the-post (FPP); the Crown Act (2013), ending gender inequality to the royal succession; further powers granted to the devolved administrations in 2012, and 2014; a referendum in Scotland held in September 2014 on independence, defeated by 55% of the votes to 45%; the vote of June 23, 2016 referendum on continued EU membership, which came as a thunderbolt to the activists favouring a written constitution: the 17.4 million voters who opted to Leave the EU understood the world in terms of the old constitution and its identification with four centuries of national independence;  in December 2016, an Act to ensure that only English MPs voted on English laws; direct elections of “metro-mayors”  for combined local authorities; a Great Repeal Bill to repeal the 1972 European Communities Act; in January 2017, the Supreme Court issued a ruling that an Act of Parliament was required before the government could trigger Article 50 of the Lisbon Treaty (2009) to leave the EU. The following three years witnessed a rearguard action of the largely Remainer political and judicial establishment to reverse the referendum’s verdict. But in December 2019, the British electorate gave a convincing majority to the government of Prime Minister Johnson to leave the EU. The UK left the EU on January 31, 2020.

The great simplifiers

A major complaint made of the old constitution is that it had become an “elective dictatorship”. The theme is not novel. Lord Chief Justice Hewart wrote in 1929 about his concerns at the growth of the administrative state.  In his pamphlet, entitled,  The New Despotism, published in 1929, he directs his ire in particular at the Henry VIII clause, which enables Ministers do anything that they consider expedient. We are, he feared, descending into “administrative lawlessness”. Over two decades later, Lord Radcliffe in his Reith Lectures of 1951, entitled The Problem of Power, argued that the conditions for the safe use of power in the UK were deteriorating. His lectures were an extended essay on the dubious wisdom of the UK continuing on the path of unfettered parliamentary supremacy.  “It seems to me that … it was Bentham, not Rousseau, who broke the older shape of things in England and built up to the new structure of majority rule”. [1] Two decades on, Lord Scarman – a later signatory to Charter 88 – proposed “ a new constitutional settlement replacing that of 1689 to be worked out by Parliament, the judges, the Law Commissions, and the Government through a phased programme of study, research, and extensive consultation; (2) The basis of the new settlement should be entrenched provisions (including a Bill of Rights), and restraints upon administrative and legislative power, protecting it from attack by a bare majority in Parliament; (3) A Supreme Court of the United Kingdom charged with the duty of protecting the Constitution: if regional devolution comes, the problems of competing legislatures could be handled by this court, which would be at the pinnacle of the ordinary courts of the land; (4) An immediate study should be begun of the problems of codification coupled with the associated problems of statutory drafting and interpretation in the new context of entrenched provisions and codified law…”[2]   Two years on, Lord Hailsham,  in his  Dimbleby lecture of October 1976,[3] and later in The Dilemma of Democracy, waxed apocalyptic about the dangers of “elective dictatorship” and called for a written constitution and a Bill of Rights.  Parliament was in bad odour well before our authors set pen to paper.

Our authors dip their pens in acid when it comes to the  main  interpreters of the high Victorian constitution.  Here is Ferdinand Mount: “What is the origin of this seemingly inexorable tendency to get rid of the old checks and balances,  to peel off the ancient gnarled bark and hack away the tangle of intertwining and overhanging branches (of Great Britain’s Constitution)”.[4] His answer: “our own constitutional authorities”. “Bagehot offers us a high-Victorian liberal interpretation; Dicey, a late-Victorian and Edwardian 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. They all have a “bottom line”. The bottom line is the absolute supremacy of parliament.

Walter Bagehot, editor of   The Economist writing in 1867, the year of the Conservative government’s second Reform Act – which he opposed-  summarises his thesis pithily: .”The Prime Minister is at the head of the efficient part (of the constitution). The Crown is…’the fountain of honour’, but the Treasury is the spring of business”. “The ultimate authority, he adds  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”.[5]

Writing in 1887, at the height of the Home Rule crisis, A.V. Dicey, the theorist of the Constitution, writes: “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”.[6]  Ireland should not therefore get Home Rule.

And here is  Ivor Jennings, writing during the high noon of managerialism between the 1920s and the 1970s: “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.”[7] The elastic concept of conventions allows the old constitution to stretch in order to accommodate the needs of a collectivist state; the barrier to dictatorship, in his opinion, is democracy. Jenning’s is the happy thesis that the British people are enlightened enough not to fall for tyranny.

Vernon Bogdanor sums it up: “the whole logic of the sovereignty of parliament is that there can be no rights against parliament”. [8] The 1689 Bill of Rights confirmed the sovereignty of the legislature (against the King).  “No limitations were placed upon the King in Parliament, whose powers remain unlimited”. By contrast, he writes, the American Constitution “served to entrench fundamental rights against the majority as represented in Congress”. [9] Rights, says Bogdanor, are for individuals: they cannot be assured by the ideologies of majoritarianism, utilitarianism (Bentham’s felicific calculus) or by relativism, whereby rights vary according to cultures, religions or locations. [10] In short, our reformers want the US constitution to be the model for Britain, and rights to be universal.

What can be said about this thesis? 

The first remark to make is that there is a strong dash of republicanism in our reformers’ cocktail.  But only a dash. Mount excoriates Bagehot’s “willful misunderstanding” of the monarch’s role as guardian of the Constitution, “by playing up her “dignified role” of encouraging, warning and being consulted”.  Bagehot, he writes, “does this to minimise any sense that the monarch retains some residual power to nibble at the sovereignty of parliament and so to blight the political glory of the age”. [11]  King records that the UK , still a monarchy in form, is all but a republic in fact. Yet, he writes, the monarchy is secure. Bogdanor is more explicit: in his book on the constitutional monarchy, he writes that the fundamental case for constitutional monarchy is that the head of state “is free from party ties”. “That the symbol of the state should remain uncontaminated by political controversy, he writes, remains, therefore, something of inestimable value”.[12]  His is a huge sigh of relief that the combat of party politics does not engulf the summit of the state. Why? Because, as with Bagehot, Bogdanor – not without reason – is suspicious of demagogy. Thank God for the monarch,   I hear him say.  All our authors concur. Bagehot was much more dismissive.

A second remark is that our reformers misrepresent A.V. Dicey. Dicey said many things, for instance that parliament was absolute sovereign, and that it was not. Let the real Dicey speak for himself: “The English constitution”, he writes in his conclusion to The Law of the Constitution, “from its legal 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 of 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… 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”. This is a far cry from Jennings’ or Bogdanor’s  assertion that parliament can do what it likes.

A third remark is  that, as Mount points out, our Benthamites are grand simplifiers.  They scorn, rather than comprehend the Gothic nature of the British Constitution.  Step forward Benjamin Disraeli, an altogether more significant presence in Victorian England, compared to Bagehot or A.V. Dicey. As Disraeli said, when I want to read a good book, I write one. In his Vindication of the English Constitution in a Letter to a Noble and Learned LordDisraeli  offers a peon of praise to the inherited conviction of  Englishmen that they are freeborn.  The true heirs to the Glorious Revolution of 1689,  he asserts are the Tories. “The basis of English society is Equality. But let us here distinguish: there are two kinds of equality; there is the equality that levels and destroys, and the equality that elevates and creates. It is this last, this sublime, this celestial equality, that animates the laws of England. The principle of the first equality, base, terrestrial, Gallic, and grovelling, is that no one should be privileged; the principle of English equality is that everyone should be privileged. Thus the meanest subject of our king is born to great and important privileges; an Englishman, however humble may be his birth, whether he be doomed to the plough or destined to the loom, is born to the noblest of all inheritances, the equality of civil rights; he is born to freedom, he is born to justice, and he is born to property. There is no station to which he may not aspire; there is no master whom he is obliged to serve; there is no magistrate who dare imprison him against the law; and the soil on which he labours must supply him with an honest and decorous maintenance…Thus the English in politics are as the old Hebrews in religion,  a favoured and peculiar people.” [13]

Disraeli here speaks to  the nation’s ancestral voices, not to a coterie of academics  and   Economist readers, who believe that a Constitution is no more than an organisational chart for a going concern. Our authors enjoy disparaging the Whig theory of history, whereby Providence is so evidently pro-British; but Disraeli , and millions of “Englishmen” consider that it is. None other than Lord Bingham concurs. [14] Reading chapters 39 and 40 of the  Magna Carta, makes  his lordship’s blood race, he writes. “No free man, the Charter proclaims,  shall be seized or imprisoned or stripped of his rights or possessions….except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice”. My lord then takes us on a gallop through the centuries: habeas corpus, or the right not to be detained unlawfully; trial by jury and the abolition of torture; the 1628 Petition of Right whereby  (clause VIII) “no man hereafter be compelled to take or yield any gift, loan benevolence , tax or such like charge without consent of parliament”; Sir Matthew Hale’s list from the 1660s of sound rules for the conduct of judicial office (including the admonitions to fear God, and eat sparingly); the 1689 Bill of Rights , “only in part directed to the protection of individual rights, but focused mainly on the independence of parliament”; the integrity of its proceedings (Article 9); the Crown ruling only with the consent of Parliament;  the 1701 Act of Settlement which laid the foundation for judicial independence. Lord Bingham then takes metaphorical flight,  fitting within his ancestral roll call, the Constitution of the United States; the Bill of Rights, the law of war and the Universal Declaration of Human Rights.

His list is not complete: Parliament dates from 1265; Bracton in the thirteenth century statement says a permanent truth that “The King is under no man, but he is under God and the law’; an Act of the 1430s that stipulates that legislators be sanctioned by elections; the familiar shape of parliament, the Lords and the Commons, emerging by the time of Henry VII;  the first Brexit when through a series of parliamentary acts  between 1532-1537, Henry VIII established the foundations of the modern English, then British state, rejecting the Pope’s universal claim to primacy; Judge Coke’s verdict of 1610 that that the courts may overturn Acts of parliament, a proposition negated by Blackstone in 1772, confirming parliamentary sovereignty as the accepted judicial doctrine; Lord Mansfield’s 1772 judgement on slavery that helped launch the movement to abolish slavery; freedom of the press, the rights of individuals against tyranny and abuses of all kinds, the right of appeal, freedom of religion, universal suffrage, and the real experience of constitutional evolution as compared to revolution. On the roots of the old constitution, see this blog:

A fourth remark worth noting is that the crucible century of the British constitution was the seventeenth, not the nineteenth century, as our reformers imply. This was the century in which the relations of King, Lords, Commons, Church, and the courts one to another and to the inherited law and mores of the land were worked out by war, and eventually by a settlement that laid the foundations of the constitutional monarchy. All the great histories of the last four centuries celebrate this fact. They do so acerbically, as is the case of the first Earl of Clarendon’s History of the Rebellion and Civil Wars in England, a high Tory account; David Hume’s History of England, which glorifies 1689, in which he, correctly in my view, debunks the Whig view of Providence as England’s ally, and attributes English liberty – Hume is of course a Scot – to a  “great measure of accident with a small ingredient of wisdom”.  The Whig, Thomas Jefferson, hated the book for consecrating  “in his fascinating style, all the arbitrary proceedings of the English kings, as true evidences of the constitution, and glided over its whig principles as the unfounded pretensions of factious demagogues…”  The debate about the Civil War and the Glorious Revolution reached a paroxysm at the time of the French revolution – the French were heirs to 1689 (Thomas Paine) or a sect “aiming at universal empire” (Burke),   and then on into the nineteenth century, with Thomas Babington Macaulay’s  five volume History of England from the Accession of James II, covering the years from 1685 to 1702, and  published between  1848 and  1859 ;  Macaulay’s volumes were an ode to the Glorious Revolution of 1689, in which England threw off superstition and autocracy, created a balanced constitution and adopted a forward-looking political culture of religious liberties and free speech.  As Robert Tombs notes: ““Macaulay defined the English not by race, religion or culture, but politically as a free nation with parliamentary institutions, and as the world leaders of modernity”.

The books role on through Disraeli, Trevelyan, Churchill or into our days, Roberts. The point to note is that the power of this historiography – acerbic or flattering – entered the British conversation over the centuries. As I write on this blog:  the two strands of Tory and Whig historiography flow together in myriad forms: a sense of hierarchy, religion, authority and deep scepticism about abstract plans on the Tory side, and a firm belief on the Whig side of the benefits of constitutional monarchy, habeas corpus, the rule of law, a vibrant press, and religious freedoms. It talked of a self-governing, exceptional  country, which by good fortune (Hume), respect for “ancient liberties” (Burke), won, if need be by force, “the right to chuse our own governors; to cashier them for misconduct; and to frame a government for ourselves.” The words are those of Dr Pryce, a Non Conformist supporter of the French revolution.

The power of this narrative came home to roost in  the years 1990 to 2016, as the EU’s encroachment on constitutional conventions took hold – conventions deeply rooted in popular assumptions about how  Great Britain’s constitutional arrangements worked.  The public could see that they were constantly challenged, overridden, concealed and entrenched. The reckoning came on June 23 2016, when 17.4 million voters opted to Leave, and for the old ways. In 2017, 80% of the electorate voted for the two major parties, who pledged in their mandates to fulfil the result of the referendum. They lied. In the December 2019 general election, the British voters gave a third unambiguous mandate to Prime Minister Johnson to Leave. On the Whig-Tory spirit of the old constitution, see my blog:

 Modernisation: 1972 and 1997.

A noted feature in conflicts is that over time the opponents come to resemble themselves more than they would like to admit. In the Great War, the German side first used poison gas; the allies did not take long to retaliate. In the 1939-45 war, the Luftwaffe inaugurated the bombing of civilian populations; the allies responded in multiples. The phenomenon is evident with regard to debates on the British constitution. Ferdinand Mount is an excellent example. His book, The British Constitution Now (1992) is elegantly written; he is only too aware that what matters is the political struggle in “whether or not to drive through or to give in to proposals for reform”;  he correctly identifies the foibles of the defenders of the old constitution, and their fixation on “parliamentary supremacy and nothing but parliamentary supremacy”; he notes Bagehot’s  semi-republican intent behind his portraying the monarchy as an insignificant cipher; he decries the parliamentary monotheism that enables Clement Attlee, the Labour party leader, to consider taking the “ strong points of the Russian system and apply them to this country”; and he regrets the resulting denial of the separation of powers,  and hence expresses his support a Human Rights Act,  and  a need for judges “to defend the autonomy of the individual against the modern state and against the large institutions which modern society spawns”.

His is a Tory plea for constitutional reform, sympathetic to the ideas adumbrated in  Charter 88 for a written constitution. At the very end of his highly readable book, in a chapter entitled “the incoming tides”, he points out that the two key European courts, the EU’s ECJ and the Council of Europe’s ECHR, were becoming the UK’s de facto supreme courts. Parliamentary supremacism, he says, cannot hold in the present climate (p.223).  The EU, on the other hand, insists on entrenchment of rights beyond  the reach of political rancour. And he ends his peroration squarely in the supra-national camp. If the UK wants free trade, he says, it has to accept a supranational authority to adjudicate across the EU’s territory. In short, Mount, having decried the great simplifiers, joins them.

If ever there was a Utilitarian experiment, it is the supra-nationalists’ combined determination in the Maastricht Treaty, and beyond, to impose a federal super-state on European countries. The chosen means was monetary union. The folly of this experiment with the lives of hundreds of millions of people is spelt out in Bernard Connolly’s , The Rotten Heart of Europe: The Dirty War for Europe’s Money (London, Faber and Faber, 1995). Connolly was head of the the European Commission unit responsible for the European Monetary System and monetary policies. While at the Commission Connolly was a Member of the Monetary Policy and Foreign Exchange Policy sub-committees of the Committee of Central Bank Governors and was on the OECD of High-Level Monetary Experts.

In Rotten Heart, Connally correctly argues that the drive for monetary union came from France (and not, as was often alleged in the UK press at the time, from Germany) : the choice in their minds was between “le désordre anglo-saxon et l’état républicain”. “Only by extending the borders of the state from the French nation to “Europe” can that state hope to retain its domestic power”. (p.379). The result – Maastricht – is “a manifesto for division and conflict in Europe”. The single currency will pit France against Germany, he predicts; hamstring the ability of French governments to act in the interests of the French people; and, if Britain joins, “ undermine the three hundred years of constitutional continuity from 1688 to 1972, without civil wars, revolutions, coups d’états or foreign occupation”. (p.390) The United Kingdom must stay out of monetary union, he argues and  it must pursue its interests as a global financial capital. It can be no surprise that Connally – the former senior Commission expert on monetary union, sacked from his job, and confirmed in his sacking by the ECJ – was an enthusiastic Brexit supporter.

Antony King presents The  British Constitution.

King’s book, published in 2007, is excellent. He gets straight to the point that the UK constitution has a vast and impressive historical hinterland, then introduces his list of great simplifiers, pointing out that they all loved the old constitution, as did the people. In Chapter 3, Britain’s Traditional Constitution, he  spells out what it was. The traditional British constitution, he writes, was complex and rich in detail, but its basic outline was clear and unambiguous. Its essential elements were few: every 4 to 5 years, voters went to the polls; since the introduction of universal suffrage in the years after the Great War, two and a half parties competed; every adult could chose to vote, or not; the system was FPP (first-past-the-post); the leader of the winning party became Prime Minister; the role of the House of Commons was to sustain the government in office; the House of Lords was diminished; the monarchy played by Bagehot’s book; civil servants pledged individual allegiance to the monarch, as did officers in the armed forces. There was the world of Westminster  and the world of Whitehall.

Outside of Westminster and Whitehall was the world of autonomous local government.  Scotland preserved its national system of civil and criminal law, with its own courts and judges, and with the Scottish office in Edinburgh, under a fully-fledged secretary of state. Both Scotland and Wales lived a largely symbolic existence, “except of course in people’s hearts”. Northern Ireland was special, a country in a country, and governed until 1972 under the 1920 Government of Ireland Act. The judges and courts, writes King, developed the common law, interpreted statutory law, and ensured that the actions of government, individuals and organisations were in strict accordance with the law. The country prided itself, rightly, he observes, on being a country where the rule of law prevailed. Judicial independence was, “subject to minor qualifications, complete”. The old constitution, too,  was well attuned to rascal eviction: British voters knew who the rascals were. Voters knew that they wielded decisive influence at election time. This encouraged British politicians to behave responsibly.

But not all was perfect. An increasing portion of British law was statutory, and judges  were unable to declare acts of parliament unconstitutional for the obvious reason that UK lacked any bill of rights. The old constitution was highly centralised; it was a power-hoarding constitution, not a power sharing constitution. It failed to accommodate Ireland; it was not responsive to changing demands of the public; despite parliamentary debates, it did not deliberate. King does not say this, but one can paraphrase his saying that Whitehall man (very occasionally woman) knew best. Whatever its shortcomings, he writes, it was nonetheless effective; it did ensure freedoms and it did set up a welfare state. He could have added, it also won wars.

Why was the constitution so comprehensively challenged in the last quarter of the twentieth century? He answers in two chapters: Chapter 4 deals with the internal impetus to change; Chapter 5, with the advent of de Gaulle in 1958.

  1. The internal impetus to change is a familiar story: the centralised economy of the 1945 settlement stalled; confidence in all things British drained away; British influence on the world stage declined, as the Empire faded away; the romantic revolt and demands for greater “participation”; a lowering turnout in elections, greater political instability; Prime Minister Thatcher’s ditching of the post-war consensus; the leftwards shift of the Labour party; the emergence of Celtic nationalisms; the accentuation of adversarial politics; and poor economic performance. The constitution, which in recent decades had delivered wealth and stability, by the 1970s was seen increasingly as failing to deliver. Criticisms multiplied of governments’ ability to “make policy at breakneck speed, to ignore conventions, flout the rule of law by changing it, curb the courts’ power, and trample on the rights of minorities.” But constitutional reformers failed to coalesce. The major constitutional change, which King says – I disagree with this judgement – was not initially seen as constitutional,[15]  was Britain’s entry to the EEC in 1972.  I analyse the transformation of the old left, and the emergence of new left-wing  politics in:
  2. The external impetus to change came from Europe. King emphasises that the reason Prime Minister MacMillan decided to apply for EEC membership in 1961 was fear of being shut out of continental markets. In announcing his new policy in August 1961, MacMillan set the tone for later generations by addressing the question of “what has often been called “sovereignty”.  A later White Paper picked up the theme with the misleading statement,  “There is no question of any erosion of national sovereignty”.  This is not what the government had been advised, nor was it what lawyers in the House feared. King lists four factors which exercised  “immense impact” on the old constitution: 1. The ECJ’s doctrine of the supremacy of EC law over that of member states; 2. The UK courts became “constitutional courts” enforcing Community law in the UK; 3. The ECJ’s claim that its law constituted a new legal order, affecting not just the states, but individuals and organisations; 4. The resulting alteration of the balance of power and authority in the British constitution in favour of the courts and judges as against both government and parliament. On British ideas about Europe, see my series:

Membership of the EU meant that Whitehall lost sole control over an ever-widening range of policies: trade, agriculture, fisheries, the single market, immigration, extradition, employment law, social policies, foreign and security policies. Civil servants became absorbed in the EU’s workings. In other words, as King rightly points out, “the EU is not just a new legal order; it is a new political order”. His conclusion, published in 2007: “The British constitution is now indubitably Euro-British” (p 110) But this had some negative political implications., not least, that the EU’s byzantine complexity rubbished one of the virtues of the old British constitution: its simplicity and comprehensibility. As King puts it, it was no longer easy to find out who the rascals were.[16]

Chapters 6 to 12 then cover the changes wrought over the years: a more assertive, talkative, and politically engaged judiciary, notably with regard to the introduction of the Human Rights Act (1998).  “Whereas people had previously spoken of “the government”, writes King, they instead began to speak increasingly of the executive; and the concept of “the executive” was increasingly juxtaposed with – and counterposed to – the concept of the judiciary”. (p. 145). In Chapter 7, King shows how the autonomy of local government was hollowed out over decades. The aim was to achieve a more “rational” system. “ “Technocracy was to trump tradition”. (p.157)  Local government in Britain, he writes, had grown, unnoticed out of  pre-existing Norman, Saxon and Celtic institutions over more than a millennia. “Today, local govt has been erased from the British constitution.” (p. 177). Chapter 8 records the impact of devolution.  Modern constitutional history, he writes, can be divided as BD and AD: before devolution and after devolution. With the coming of devolution in Scotland and Wales, the single locus of sovereign authority no longer exists, he writes. Scotland is semi-independent, but England foots Scottish, Welsh (and it should be said) northern Irish bills.

In Chapters 9, King records the transformation of the civil service. The two decades following the end of the second World War were a mandarin’s paradise, he records. But as of 1979, that all changes. The civil service – he quotes Vernon Bogdanor – was subject “to more change in its structure and organisation between 1979 and the end of the twentieth century than at any time in the preceding 125 years”. (p. 221) In particular, he notes, the growing role of the consultants, the chatter of think tanks, the aggressive hearings of select committees, and the proliferation of quangos (quasi-autonomous NGOs). Likewise, the Blair government’s reforms of the House of Lords converted the upper house into an appointed chamber – ripe new sources for political patronage. Yet alongside this, as King records in his chapter 10 on “democracy rampant”, voter turnout has fallen off, while the number of elections to various bodies have multiplied, as have different voting systems – FPP for UK-wide elections, PR for the European parliament and devolved regions. The rules about when, how and on what subjects referenda should be held are not clear. Nor does parliament, King emphasises, exercise much influence on policy.

King considers that the new Euro-British constitution of 2007 was far more complex than the old one, more difficult to understand, internally inconsistent, and less accountable. This was so, he argues, because power was more defused across the EU institutions, quangos, ministries, and local and devolved governments. It holds numerous elements of instability. The country’s constitution is, he concludes, a mess, “but probably, on balance, a benign mess”.

Vernon Bogdanor on the British Constitution.

Professor Bogdanor’s Beyond Brexit: Towards a British Constitution is an indispensable read for all those interested in UK constitutional matters. But it should be read with discernment. The author is much more parti pris than his style suggests.  As the subtitle indicates, he favours a written constitution. He is not a fan of the old; he does consider the EU as step up on national constitutional states; and, not to put too fine a point on it,  he is concerned about Brexit. His main argument – half analysis, half expression of hope – is that there is no going back to the constitutional status quo before 1972. The past, he writes, is another country.

The theme of the book is the impact of 45 years of EU/EEC membership on the British constitution, and the likely constitutional consequences of Brexit. The consequences of entry – he does not mince his words – were seismic: entry made the UK  subordinate to EU law, and by dint of the 1975 referendum on staying in or leaving the EEC set a precedent for sub-national and national referenda to become part of the Constitution. Membership has shifted power from parliament to courts;  devolution has transformed relations between  London and  the parliaments in Edinburgh, Cardiff and Stormont.  The Human Rights Act of 1998, coupled with the European Charter of Fundamental Rights has transformed “our system of government and our understanding of the constitution”. There can be no going back. The country has to move forward to a written constitution.

Like King, Bogdanor tells the story of the years from 1950 on, when Britain stood aside from European integration. He does not use the phrase ‘missed the bus’, but his account tells a similar story.

The European experience of the war, he writes, was significantly different to Great Britain’s. For many on the continent, the war took on the aspect of a supranational struggle against Hitler. The European idea, he writes, was a reaction to nationalism. I would  qualify these statements. National Socialism was a racial supra-national movement, and much of the resistance to Hitler’s New Europe was national. De Gaulle was a prime example. He resisted in the name of “ a certain idea of France”. Jean Monnet, the founding father of the EEC/EU knowingly kept the Labour government out of the loop in setting up his Coal and Steel Community. He did so to steal a French march on the British rival for leadership in western Europe. De Gaulle did the same when he twice said Non in 1963 and 1967 to block British entry, until such time as the EEC was sown up in the French interest – a customs union, a budget, and 90% of the budget spent on France’s prime endowment, agriculture. As Bogdanor correctly observes, by joining in 1972, the UK had to make far greater adjustments than any other member state.

So why did the UK join ? Since the General’s first Non,  Bogdanor writes with reason, the EU has been toxic for the UK. I agree completely. Bogdanor, unlike many authors who favour the EU, nonetheless gives full credit to Prime Minister Attlee, and Hugh Gaitskell, his unfortunately too short-lived successor as leader of the Labour party, for their reasons for opposing membership of a supranational organisation.  “A parliament is sovereign or it is not”, he quotes Attlee as saying (p.29). Gaitskell read the Rome Treaty and concluded, also rightly, that the extension of majority rule within the Communities over time would override parliament’s sovereignty. Entry, Gaitskell famously said, “means the end of a thousand years of history”. When on June 23 2016, Bogdanor writes, the electorate voted to Leave, “the British people gave the answer that they do not share the European identity”. “The British never became emotionally committed to the European idea”. (p50). Advocates of EU membership, in short, never won the argument. See my review of Ken Clarke’s autobiography:

Bogdanor is here making a crucial point. The British electorate, which loved its old constitution, was steeped in its ways, and understood its operation instinctively, never became convinced of the continental European ideal.  Since 1985, continental member states celebrate the anniversary of the 1950 Schuman Plan as “Europe Day”. Not so the UK. Norway sends a Christmas tree every year to be displayed in Trafalgar Square, in thanks for Great Britain’s contribution to Norway’s liberation. It is the only European country to make such a gest – and, parenthetically, it is not a member of the EU. Once the UK joined, Bogdanor points out, the civil service adjusted to “Europe”. “But Parliament has found it more difficult” (p46).  That is scarcely surprising, as the EU/EEC was created to keep politics at bay, while technocrats ran the show. As powers have moved to Brussels, member state national parliaments have been hollowed out. The British electorate understood this. They concluded that the UK could not stay in an organisation which denied the country self-determination. They wanted, as the slogan went, “their country back”.

Chapters 2 to 6 cover the EU : and the sovereignty of parliament, and the referendum; collective responsibility of ministers; and the rights of citizens, and devolution. I will cover some of the many points which Bogdanor discusses, often in much learned detail, and bearing in mind his underlying message that the past is another country, combined with hope for a written constitution. On the way, he makes some powerful statements. Here they are. His main conclusions are italicised below.

The 1972 European Communities Act (ECA) transformed the constitution which Dicey analysed in his great tome, Introduction to the Study of the Law of the Constitution. By the end of the twentieth century, it was apparent that the UK constitution was being refashioned in a highly conscious and deliberate way. The UK, he writes, took a quantum leap from a historical constitution to a legal constitution. Whatever transpires after Brexit, as a consequence of Britain’s EU involvement, the sovereignty of parliament has been irretrievably damaged. (p86).

Without entry in 1972, the referendum would never have become part of the UK constitution. Dicey had argued in favour of the referendum “to secure the conformity of Parliament” to the will of the nation”; (p.88) He also quotes John Locke from his Second Treatise of Government, that “the legislative cannot transfer the making of laws to other hands. For it being but a delegated power from the people, they who have it cannot pass it to others”. (p.97). They did and the people did not appreciate. “Had it not been for Europe (he insists on calling the EU “Europe), is possible that the referendum would not have become part of the constitution and the principle of the sovereignty of Parliament would not have been abrogated”. ( p.112)

EU membership also ran a cart and horse through the convention of the collective responsibility of Ministers –  a  constitutional convention whereby members of the cabinet must publicly support all governmental decisions made in Cabinet, even if they do not privately agree with them. He quotes L.S. Amery from his Thoughts on the Constitution, that “ the essence of our Cabinet system is the collective responsibility of its members”. (p. 116). Prime Minister Wilson suspended its operation for the duration of the 1975 referendum, and in the 2010 coalition government, collective responsibility became a “freely adjustable commodity”. (p. 132) Without the European issue, collective responsibility would have remained as a fundamental convention, he concludes.

Joining the European supranational project abrogated the sovereignty of parliament by rendering British law subordinate to the law of the EU. The 1689 Bill of Rights set out in statutory form the rights of Parliament against the King, not of subjects against the Crown-in-Parliament. With the 1998 Act, judges were now charged with interpreting legislation in the light of a higher law, the European Convention of Human Rights. When the European Charter of Fundamental Rights became part of EU law under the 2008 Lisbon Treaty, the ECJ – he writes – became comparable to the US Supreme Court in terms of the breadth of its powers. With Brexit, the Charter will not be retained in England and Wales, – where it is seen as a ‘villain’s charter’ – though it has been incorporated into Scots law. “It is a fundamental implication of the doctrine of the sovereignty of parliament that acts of parliament are not subject to judicial review”. (p.165). In other words, Brexit is a bad thing for human rights in the UK.

With devolution in 1998, it was explicitly recognized that the UK was a multinational state. There is,  he adjudges, no overarching British nation. In support of this assertion he cites the vote of June 23, 2016, that showed that the results provided stark evidence of  different wills – Scotland and Northern Ireland voting to Remain, England Wales- and it should be added, Cornwall – voting Leave. The UK, writes Bogdanor, is no longer a unitary state. There is, he asserts, no overarching British nation. Indeed, EU membership became the glue holding the UK together; Brexit is loosening the glue, leaving the UK with not one constitution but four different constitutions.

His conclusion is that Brexit leaves many sources of uncertainty with regard to the UK’s constitutional arrangements. Constitutional reform, he writes, has established the separation of powers; there is no agreement on whether Parliament or the courts are to protect rights; the relation between Westminster and the devolved administrations is uncertain; Britishness no longer holds the country together, and the UK is leaving the EU, which is the glue holding the country together; the danger is that, with Brexit, Whitehall takes back control. The only hope, he considers, is a written constitution. Drawing it up, and convincing the peoples of the UK to consent to it, will require statesmanship of the highest order.

Summary and conclusion.

Up   to 1972, the British constitution had evolved along a recognisable trajectory, based on simple and well-known principles. The inherited constitution adapted smoothly to the politics of a mass electorate. There were three significant modifications: the monarchy was now clearly a symbol of Great Britain as a nation; the House of Lords existed on sufferance; the Commons reigned supreme. Revolution was avoided; powers was now in the hands of “the Crown in Parliament”, based on a competitive two and a half party system, functioning on the first-past-the-post principle. Entry to the then EEC represented a momentous break in British tradition, which did not remain immediately evident, at least to the wider electorate.  The Thatcher reforms of the 1980s represented the swan-song of the old constitution. Looking around for a political alternative to its failed economic policy formulas of 1945, New Labour hit on the idea of constitutional tinkering. The British constitution became the victim of this frenzy for “reform”. The aim of reformers was to “modernise” the constitution, just as entry to the EEC in 1972 had been intended to “modernise” the economy.

Our authors use terms to describe the impact of EU membership on the UK constitution, such as “momentous”, “or seismic”. Only King seems to challenge the assumption that this was all for the good. As King writes,  the constitutional monarchy, derived from 1689, ensured competent government and the rule of law. He records, the changes that ensued membership, and concludes – as I quote him saying in my introduction- “the long era of constitutional continuity portrayed in the old textbooks, is now ended (and) that continuity and gradual evolution have given way to radical discontinuity and that the traditional British constitution… no longer exists”. I disagree, but I endorse his objectivity. I disagree because, as Bogdanor repeatedly points out, the British electorate never warmed to the EU’s ethos. I would add that the UK electorate, as recorded now in 50 years of the Commission’s Eurobarometer opinion polling, has consistently favoured international, notably European co-operation. They have always been more in agreement with Attlee and Gaitskell, than with MacMillan and Heath.

Not all was perfect in the garden of the old constitution. In particular, it did not deal well with the growth of the discretionary powers of a collectivist state in the twentieth century. But the weakness in the arguments of Mount and of Bogdanor is that they set up Dicey as a scapegoat. They downplay the fact that he said many things. They then proceed to illustrate how harmful the untrammelled doctrine of parliamentary sovereignty can become. They  overlook thereby two central features of the British constitution: its millennial hinterland, and its crucible century being the seventeenth, not the nineteenth century.  1689 laid the foundations for the constitutional monarchy, for the independence of the judiciary, freedom of religion and of the press, government by consent, and much else. They play up Dicey, but hardly mention the genius of a statesman, Disraeli.

Disraeli realised that the British constitution had a thousand year pedigree, that it was Gothic, even baroque in form, but free and “populist” – to use a current term to decry popular opposition to existing policies -in spirit. As Judge Coke opined in 1610 almost in sociological rather than judicial terms: “in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void” [17]. It would not be wise, he is saying, to rule against the will of the British people. Entry to the EEC/EU did just that. That led to the referendum being introduced to the constitution in 1975 , and even more to the result of the referendum of 2016.

Technocracy trumped tradition, writes King with regard to the subordination of local to central government from the 1960s on. The same phrase goes for membership in the EEC. This is hardly surprising. The patron saint of modern Britain and of British “reformers” is St Jeremy Bentham, founder of the felicific calculus, proponent of centralisation, combined with market freedoms, and of his Utilitarian church. Its bottom line states: experts know best. Keep the people at bay. And the means? Modernise the UK economy by joining the shiny new EEC, no matter the constitutional impact; then change the UK constitution so that the UK becomes a sub-federation within the European federation of the EU, with its unchallenged authorities in the Commission; the ECB; the ECJ, majority voting, combined with its flag, anthem, and founding fathers. This EU is not bound by international treaties: it has not signed the Vienna Convention on International Treaties. No doubt it intends to, once it is sole sovereign of all it surveys.

Whitehall mandarins loved membership. Westminster, as Bogdanor emphasises, did not accommodate so well. This cannot be surprising. the EU was set up to take politics out of policy, and hand it over to the experts. The result has been to make Whitehall part of Brussels, and Westminster more than ever a sideshow. The result was voter apathy. In 1950, Attlee won on an 84% voter turnout, with 47 % of seats and 46% of the vote. In 1997, the year of the New Labour landslide introducing the tsunami of constitutional change, voter turnout was 71%, with New Labour winning 63% of the seats, on 34% of the vote.  Clearly and over time, the British state was failing in terms of representativity. Wealth accumulated in the South-east of the country; Wales, the Midlands, Cornwall, Glascow and the Scottish sea-coast lost out.

Two things were at work here: as  the EU-British constitution took shape, more and more policies were made conjointly in “Brussels”; and as Whitehall got used to the consensual culture of making decisions behind closed doors in Brussels, ministers had to expose themselves to the gladiatorial culture of  Westminster’s bear pit. It was gladiatorial because the idea that Sir Humphrey knows best was never accepted. In Brussels, experts rule the roost.

As  former President of the Commission Jean Rey, a Belgian liberal, could say in the run up to the 1975 referendum:, “A referendum on this matter consists of consulting people who don’t know the problems instead of consulting people who know them. I would deplore a situation in which the policy of this great country [the UK] should be left to housewives. It should be decided instead by trained and informed people.” It is difficult to find a statement which better encapsulates the EU’s political culture. The trouble is that it was definitely not the popular political culture of the UK – and had not been for centuries.

Bogdanor  puts the case that the EU is a cause that progressives can embrace. Its institutions are founded, he says, on the principle of the separation of powers, and are federal in inspiration, not centralising. I disagree. The EU institutions are a Frankenstein monster. There is no separation of powers. The “executive” – the Commission -Council of Ministers – is the legislature, and the European parliament  is a talking shop. The ECJ is an activist court, as is the ECHR. The ECJ’s powers, as I have pointed out in this blog, are not treaty based. The ECHR takes a flat earth approach to human rights-indeed so does Bogdanor.

We are all humans, this approach states. That is a sound enough observation in its own right.  The  world economy is highly integrated in terms of technology; but it remains very distinct in terms of political cultures, ancestral memories, languages and traditions. These differences find expression in the variety of states – that limited society of sovereigns that make up the modern world. Europe is a microcosm of this global reality.  But in the EU,  a slew of policies are made jointly in Brussels, whereas responsibilities of elected officials are to their domestic electorate. The UK electorate decided in June 2016 that it wanted “to take back control”.

Both King and Bogdanor  are of course correct to point out that the UK is much more disunited than it was in 1972. Constitutional tinkering ensured that.  But “take back control” means what it says. It means laws in the UK are homemade. Finances raised in the UK are spent as the Crown-in-Parliament decides. Laws in the UK have to be adjudicated or changed by the UK, and at election times often powerfully, by the UK electorate. The vote of June 23, 2016 was a vote to recuperate as much of the old order as possible.

Bogdanor is correct to say that not everything between 1972 and 2016 can be reversed. But it is also true that the past is not another country. Pace Bogdanor, the law has been part of the constitution for centuries. It lives in the British people, and there is an overarching British nation.  Constitutional tinkering has led, yes, to a mess, but it is quite within the capability of the UK to make the mess into something updated, shiny and new, while also being old. It has its huge constitutional hinterland to examine, recall and re-interpret. That is a much more realistic objective than surreptitiously seeking to modernise the British constitution while voting for the abolition of the UK, and its merger by stealth into a European super-state.

Many years ago, the late Susan Strange, an old friend, warned against playing blind man’s buff with sovereignty, whether national or parliamentary. Our supra-nationalists, both British and continental, kept on playing the game.  The British electorate ran out of patience. And it knew what it was voting for. To quote Edmund Burke , their vote was  “the wisdom of unlettered men” – unlettered in the sense that the electorate understood enough of the EU that they did not like it. That knowledge must be the foundation of future UK policy.

As this is the last in this series, I round-up: Brexit is part of the ongoing European crisis. This crisis is self-induced. Its perpetrators are the supra-nationalists in the United Kingdom and in the EU who have blithely sought to impose a supra-national regime on a diverse continent. The continent requires a common regime, modest and effective, to serve its common purposes. If the United Kingdom succeeds in “taking back control”,  it will do so by reviving the old constitution, adapting it, and resuming the path of gradual adaptation to changing circumstances that served so well in the past. A successful United Kingdom could also serve as a reminder to  the rest of Europe that evolution is a better path forward than revolution- always the first resort of demagogues.

[1] Lord Radcliffe, The Problem of Power, The Reith lectures 1951London, Secker and Warburg, 1952. Pp. 87-88.

[2] Sir Leslie Scarman, English Law: The New Dimension, Steven & Sons,1974, p. 81-82.

[3]  Lord Hailsham, The Dilemma of Democracy, June 1978.

[4] The British Constitution Now,London, Heinemann, 1992 p.36.

[5] England’s Case, 1887, p. 168

[6] England’s Case, London, john Murray, 1887, p. 168

[7] The Law and the Constitution, University of London press, 3rd ed, p. 169.

[8] Beyond Brexit : Towards a British Constitution, London, I.B.Tauris, p 2019.p.140.

[9] The New British Constitution, Oxford, 2009. p. 54.

[10] Ibid.p.265.

[11] The British Constitution Now, p.96.

[12] The Monarchy and the Constitution, Clarendon Press, Oxford, p. 307.

[13] Disraeli the Younger, Vindication of the English Constitution in a Letter to a Noble and Learned Lord, London, Saunders and Otley, 1835. Pp. 204-205

[14]  Tom Bingham, The Rule of Law, London, Penguin Books, 2011,

[15] This was clearly not the case. A host of political leaders knew full well that, as Prime Minister Attlee said, a parliament is sovereign, or it is not.

[16] This dimension is recorded in Peter Oborne, The Rise of Political Lying, London, The Free Press, 2005; and  The Triumph of the Political Class, London, Simon and Schuster, 2008

[17] Quoted by Ian Williams, “Dr Bonham’s Case and ‘void’ statutes”. Journal of Legal History27 (2): 2006, 111–28.


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) ( 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, European integration, India, North America, The United States, United Kingdom and tagged , , , , , . Bookmark the permalink.

Leave a Reply

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

You are commenting using your 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.