Reforming the Constitution

Debates in Twentieth-Century Britain

Peter Catterall, Wolfram Kaiser, Ulrike Walton-Jordan

• Publisher: Routledge
• Year: 2014
• Topic: Politics & International Relations
• eBook ISBN:
  9781135305697
• Subtopic: Political Campaigns & Elections
• Index: Politics & International Relations

This collection takes as its subject how and why the British constitution developed during the course of the 20th century. In chapters that analyse in detail the evolution of various aspects of the constitution, this work explores debates about how the constitution ought to operate and the political goods it ought to secure among politicians, jurists and academics. In addition, it looks at the influence of political parties, nationalism, social and economic change, European integration, and the contests in over particular reforms in Parliament, courts, media and on the hustings.

1 ‘Efficiency with Freedom'? Debates about the British Constitution in the Twentieth Century

Peter Catterall

DOI: 10.4324/9781315039787-1

In 1950 the Labour Lord Chancellor, Lord Jowitt, sought to reassure peers that, since the time of Marlborough, ‘The genius of the British race has shown that it is possible to combine efficiency with freedom.’ ¹ The merit of the British constitution for its supporters has always been the apparent achievement of this balancing trick between strong government and respect for liberty, which, it is argued, has both history and flexibility on its side. ² For them a historically well-established political culture predicated upon the defence of liberty against arbitrary government is a key facet of this balance, more important and reliable than any legislative or constitutional safeguards. ³ As Baroness Gaitskell argued in 1969, ‘my experience at the United Nations does not make me feel that a Bill of Rights by itself is any substitute for the spirit of liberty’. ⁴

Jowitt's reference in the debate cited above to Dunning's famous motion in 1780 reflected his awareness of Britain's long history of suspicions of an overbearing Crown needing the reciprocating checks of Parliament and law. The result of these suspicions was a lengthy process of constitutional evolution, the smoothness of which was emphasised if not exaggerated by the Whiggishly inclined (most of them) of all parties, whereby power leached from the Crown to ministers, hastened by the Reform Acts of the nineteenth century. This powerful myth in turn had a number of influential effects. Even though these effects were also substantially mythic in quality, as critics of Dicey have pointed out in recent years, ⁵ and were indeed already so by the time Dicey and Anson produced their magisterial works in the 1880s and 1890s, they nevertheless played an important role in shaping the cognitive realities and therefore the practice of the constitution for much of the British political elite for much of the twentieth century. ⁶

Flexibility and Efficiency

First, these beliefs reinforced ideas of the value of a flexible constitution. Asquith in 1909 commented:

the great bulk of our constitutional liberties … rest upon usage, upon custom, upon convention — often of slow growth in their early stages, not always uniform, but which in the course of time have received universal observance and respect. ⁷

At the same time, he pointed out, outdated aspects have fallen gradually into desuetude without, by implication, the violence often detected in constitutional adjustments elsewhere. In this view the constitution is thus a matter of generally respected adaptable usage rather than entrenched documents. Indeed, flexibility at the apex of the British state was seen as much preferable to hard and fast rules. It both facilitated adaptability and provided a studied ambiguity which could maximise consent. ⁸

Second, this flexibility was held to derive in large part from the relationship developed between Crown, Parliament and the law in the settlement following 1688. Besides an anxiety, understandable in the circumstances, to secure the Protestant succession in the face of the Jacobite threat, this settlement, as interpreted by nineteenth-century authorities such as Dicey, established parliamentary supremacy over the courts. The judiciary, after the unhappy experiences of the reign of James II, were not to interpret what was and what was not constitutional or set a limit on Parliament's actions. ⁹ Statute was supposed to provide them with clear evidence of the mind of Parliament on specific issues. Parliament, meanwhile, was seen as bound neither by the law nor by its predecessors. Instead, for the enthusiasts for parliamentary sovereignty, it was a representative assembly able to respond flexibly to the changing needs of the society it governed. Condemning in 1969 proposals for a Bill of Rights, Labour MP Alex Lyon vehemently denied the implied criticism that Parliament ‘does not have the foresight to preserve liberty in a changing economic and social climate’. ¹⁰

Third, in practice, Parliament continually operated as if it were indeed bound by its predecessors. There was no question, for instance, at the start of the century, of repealing the Reform Act of 1884, only of when further enfranchisement would be enacted. This did not mean that it could not be done. It was certainly judged expedient temporarily to set aside constitutional legislation such as the quinennial provisions of the Parliament Act of 1911 (section 7) during the emergency of war twice in the first half of the century. Such prolongations were always liable to conjure up visions of the abuse of power by the seventeenth-century Rump Parliament, until forcibly ejected by Cromwell, but the risk of a reoccurrence was seen in practice as slight, ‘with public opinion maintaining sufficient influence and control over parliamentary events and sufficient authority over the House of Commons to prevent that body from an undue departure from the general will’. ¹¹ Indeed, these limitations were repeatedly seen as, if anything, too effective for the military needs of the Empire. The century began with Balfour lamenting, in the light of the early defeats in the South African War that, ‘when the opinion of the community lags behind the necessities of the case, there may be occasions when sufficient rapidity of action is denied to the executive Government’; a refrain to be reprised during the war-threatened 1930s. ¹²

The constitutional boundaries of parliamentary action may not have been established by entrenched legislation, but they nevertheless existed in the minds of legislators, in generally accepted usages and principles. ¹³ Parliament, in other words, was not limited by the courts but was in effect limited by what was deemed to be the view of the people, by what was consistent with the shibboleth of liberty, and by the rule of law.

The common-law concept of the rule of law was enshrined, not in a fundamental document as such, but in the quasi-religious contract known as the Coronation Oath. ¹⁴ As C. T. te Water, the South African High Commissioner, argued in 1936, ‘The oath which the King takes to govern according to law reveals the formulation upon which the structure of democratic government has been reared throughout the Commonwealth.’ ¹⁵ This is that government is, in theory, in accordance with, but not controlled by law. One corollary was the entrenched system of Crown immunities encapsulated in the misleading doctrine ‘the Crown can do no wrong’, or rather was not seen as justiciable by law.

The Role of the Crown

In what is still a dynastic state all institutions ultimately derive from, and government remains in, the name of the Crown. George V indeed attached great importance to his being consulted on the publication or disclosure of Cabinet documents; ‘a principle which is inherent in the constitutional relations of the Crown and Ministers’. ¹⁶ The distinction between Crown and ministers was, however, increasingly meaningless. Nevertheless, the monarch herself retains some residual powers to ensure the Queen's government is carried on should the electorate fail to deliver a clear verdict. ¹⁷ But it is to this electorate that responsibility for choosing the government passed during the nineteenth century. Ministers, even on the still restricted franchise of the Edwardian years, saw themselves as both democratically elected and accountable.

Government was thus legitimated by both the Crown and the people. As Churchill emphasised in 1910:

The great prerogatives of the Crown, peace and war, making treaties, dissolutions, prorogations of Parliament, and the creation of peers, are and have long been exercised upon the advice of responsible Ministers … who, as long as the House of Commons retains its control over finance, will be responsible to this House and this House alone. ¹⁸

This combination of Crown and representation — Bagehot's efficient secret of the near fusion of legislative and executive functions in the Cabinet — was the recipe for strong government in Britain. ¹⁹ And the carrying on of this representative government in the name of the King was central to the objectives of both major parties, something which Leo Amery, writing during the Second World War, contrasted favourably with the apparent weakness of factional parties in Third Republic France. ²⁰ Britain, accordingly, does not have the pillarisation of continental politics, with a range of social partners forging a consensus between them. Instead, the Crown not only acts as an integrating symbol and a guarantor of continuity and stability, but also ensures that, whatever party is in power, government remains in the name of the Crown. Legitimacy in a parliamentary democracy may, as Tony Blair's repeated invocation of the people bears witness, flow upwards. But it is the centrality of the Crown which facilitated the smoothness of the transition of power, despite 18 years of Tory rule — a smoothness which Blair was publicly to praise.

The centrality of the Crown has two important consequences as far as the ruling assumptions of the constitution were concerned. First, as Balfour put it in 1927:

our whole political machinery pre-supposes a people so fundamentally at one that they can safely afford to bicker; and so sure of their own moderation that they are not dangerously disturbed by the never-ending din of political conflict. ²¹

He might have added that such assumptions also rested on the idea of an essential unity of purpose of all parts of the kingdom, ensured by both political and fiscal integration, rather than a pork-barrel quarrel over the division of the spoils, whatever the implications of the establishment the previous year of a Secretaryship of State for Scotland.

Second, the monarchy's gradual withdrawal from politics after the eighteenth century meant that the powers of the Crown also gradually transferred to the party politicians who ruled in its name. The result was, as Amery put it, that ‘In no other country is there such a concentration of power and such a capacity for decisive action as that possessed by a British Cabinet, provided always that it enjoys the support of a majority in the House of Commons.’ ²² This is, however, a significant caveat. The loss of that support could prove fatal to a government, as Chamberlain found in 1940. So could the withdrawal of popular consent, as reflected, for instance, in the public hostility to the poll tax at the end of the 1980s. Popular consent is the ultimate arbitrator, but the political parties have long sought to be its interpreters in their electoral contests. By the 1880s the doctrine of the mandate to rule had already developed. This view of popular legitimation for government was taken furthest by Radicals of that era such as Joseph Chamberlain, who desired strong, reforming government, ²³ and it was inherited in the twentieth century by the newly formed Labour Party.

Socialism and the Constitution

There were some on the left who nevertheless felt radical constitutional surgery would be necessary in order to build a socialist political economy. ²⁴ Even Clement Attlee flirted after the First World War with guild socialist ideas ²⁵ which, in their most developed form, would have replaced a territorially based Parliament with negotiating assemblies representing producers and consumers. By the early 1930s, however, such ideas had all but disappeare...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Table of Contents
• Notes on Contributors
• Introduction
• 1 ‘Efficiency with Freedom’? Debates about the British Constitution in the Twentieth Century
• 2 The Decline and Rise of Radicalism: Political Parties and Reform in the Twentieth Century
• 3 Constitutional Law Reform: Inside the Motor
• 4 House of Lords and Monarchy: British Majoritarian Democracy and the Current Reform Debate about its Pre-Democratic Institutions
• 5 The Politics of Electoral Reform since 1885
• 6 Transforming Relations of Gender: The Feminist Project of Societal Reform in Turn-of-the-Century Britain
• 7 The Concept of Citizenship in Twentieth-Century Britain: Analysing Contexts of Development
• 8 ‘Home Rule All Round’: Experiments in Regionalising Great Britain, 1886–1914
• 9 Territorial Politics and Change in Britain
• 10 The British State and Northern Ireland: Can the National Question be Reformed?
• Index