Constitutional Change in the UK

Nigel Forman

• Publisher: Routledge
• Year: 2003
• Print ISBN: 9780415230353
• eBook ISBN: 9781134581733
• Topic: History
• Subtopic: British History
• Index: History

The years since New Labour came to power in 1997 have seen changes to the British institutions of political power on an unprecedented scale. The reforms have been widespread, ranging from devolution of power in Scotland, Wales and Northern Ireland, to the reform of the House of Lords and the changing role of the Monarchy. This book is the first to examine these changes collectively and in detail, placing each in its historical context, analysing problems, solutions and what the future holds for this ambitious period of reforms. The book is comprehensive in coverage, and accessibly written. As such it should be the ideal resource for undergraduate students of British Politics seeking to make sense of this complex subject.

Part I
THE LEGACY OF HISTORY

1 Historical background

Chapter 1
Historical background

From the century of revolution

Via a long era of consolidation

Through a century of democratisation

A period of consensus, then confrontation

With New Labour into a new Britain

General reflections

Questions for discussion

Notes

Further reading

From the century of revolution

There has always been both change and continuity in the constitutional arrangements of the United Kingdom. Since the election of the Labour Government in May 1997, we have been living through a period of accelerated change, but this is not unprecedented in historical terms. It was during the seventeenth century – ‘the century of revolution’ in the words of Christopher Hill – that many of the basic principles, rules and conventions of our constitution were gradually established, notably the ending of the Divine Right of Kings and in its place the emergence of constitutional Monarchy and the principle of Parliamentary supremacy.¹

Three things essentially distinguished the English revolution of the seventeenth century from its analogues in other countries: its pioneering characteristics, its provisionality and its influentially long-lasting consequences. It offered the first modern example of an internally generated transformation of an established constitutional and political order. It took the best part of a century to accomplish and did not leave behind any lasting forms of pathological politics, such as organised political terror or brutal military dictatorship. Its legacy has been seen in the constitutional attitudes and institutional arrangements not only in this country but also in the United States and in many members of the Commonwealth.

Most of the constitutional changes which took place in England between 1603 and 1714 were unintended, unplanned – at any rate when they were initially embarked upon. Charles I provoked the men of the Long Parliament to oppose his rule by seemingly attacking their faith, their liberty and their property. The King went to Parliament to arrest his opposition and soon after the Civil War began. However, subsequent events were to show that those opposed to the Stuart monarchy were not themselves united. The revolutionary camp was divided into those, such as Levellers in the rank and file of the army, who advocated a contractual theory of government according to which ‘every man that is to live under a government ought first by his own consent to put himself under that government’, and a group of senior officers who put the case for a restricted franchise based upon ‘those persons in whom all land lies and those in corporations in whom all trading lies’.² In the former quotation we can see signs of the desire and argument for further democratisation which lasted until the mid-twentieth century; in the latter we can see the outlines of the constitutional settlement which was reached with the restored Stuart monarchy in 1660. It is commonly asserted that this country has never had a codified constitution assembled at one particular time into a single consolidated document. Yet attempts have been made to do just this, including the Instrument of Government written by Major-General Lambert and his fellow Major-Generals in 1654. However, the package of proposals, which included a powerful Executive on which senior army officers would have had a decisive and permanent majority, proved unacceptable to the landed gentry and the urban merchants who were so amply represented in the House of Commons.

Charles II and his court-in-exile were eventually able to return to England in 1660 after the King had agreed to the Declaration of Breda which offered an indemnity to those who had opposed Charles I, a settlement of disputes about the sale of royalist lands, and liberty of conscience to reassure the various religious tendencies and sects – all underpinned by the promise to refer all disputed questions to ‘a free Parliament by which, upon the word of a King, we will be advised’. The years from 1640 to 1660 in England therefore amounted to a great upheaval but not a Great Revolution. They produced some significant instalments towards the eventual settlement of constitutional accounts in 1688–89, but also left some unfinished constitutional business which had to be resolved during the reigns of William and Mary (1689–1702) and Queen Anne (1702–14).

The period from 1660 to 1689 saw the further consolidation of Parliamentary power at the expense of the Monarchy and it was only in the failure to put successive (Catholic) Exclusion Bills on the Statute Book between 1679 and 1681 that the Protestant propertied classes were significantly balked by Stuart cunning and the passage of events. In many important respects Parliament got its way during the reign of Charles II – at any rate up to 1681 when the King dispensed with Parliament altogether and chose to rely for his revenue on financial support from Louis XIV. Successive statutes consolidated the power of Parliament and served to reduce the chances of Stuart recidivism. For example, the 1664 Triennial Act ensured that Parliament would meet at least every three years (in fact it met every year until 1681); the 1673 Test Act ensured that all civil and military office holders were Anglicans in their religion; and the 1679 Habeas Corpus Act outlawed the tyrannical practice of imprisonment without trial.

The brief and turbulent reign of James II from 1685 to 1688 was yet another eruption of political and constitutional instability in what had already been a very bumpy progress towards relatively stable constitutional Monarchy and Parliamentary government. When the King sought to turn the clock back by returning to personal rule and openly favouring Roman Catholicism, Parliamentary leaders once again decided that it would be expedient to sound out a potential alternative Monarch for the country – in this case the Dutch Prince William of Orange who was married to Mary, the daughter of James II – to see whether they were prepared to take up the reins of constitutional Monarchy in England on Parliamentary terms. In the event a pragmatic agreement was reached with William and Mary in February 1688 and later spelled out in statutory form in what came to be known as the Bill of Rights in October 1689.

The Bill of Rights makes interesting reading for anyone who wishes to understand why the Stuarts were by then irredeemably beyond the pale for nearly all the English ruling class and what were the ‘civil rights’ to which leading Parliamentarians attached overriding importance. The first part consisted of a twelve-point indictment of what the former King James II had done ‘to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom’. The second part was a straightforward declaration of the illegality of seven different practices associated with the Stuart Kings, ranging from the suspension of laws and the levying of money via prerogative powers to the raising or keeping of a standing army in time of peace; coupled with a list of six different fundamental rights for Members of Parliament or the people whom they sought to represent, ranging from the right of Protestants to bear arms in their own defence and the rights of free elections and free speech for Members of Parliament to the right of Parliament to be summoned frequently and to be beyond impeachment or challenge in any court or ‘place out of Parliament’. In other words, the members laid claim more comprehensively than ever before to the notion of Parliamentary supremacy, which has remained ever since a fundamental principle of the British constitution. The third part of the document expressed ‘an entire confidence’ that their intended Monarch, the Prince of Orange, would ‘preserve them from the violation of their rights which they have here asserted and from all other attempts upon their religion, rights and liberties’. In return, they were prepared to offer the crown to William and Mary jointly for the duration of their separate lives and thereafter to any direct heirs of Princess Mary and, failing that, to her younger sister Princess Anne of Denmark and any of her direct heirs and, failing that, to the ‘heirs of the body of the said Prince of Orange’. Quite apart from the deliberate detail in this Royal succession planning, the constitutionally significant point was that this was a contractual arrangement between Parliament and the proposed Monarchy, and one in which there was little doubt as to which party was intended to dominate.

Beyond this the members of the Convention Parliament in 1689 wanted to leave as little as possible to chance, so in later parts of the document they went on to draw up new oaths to be sworn by all civil and military office holders, firstly of allegiance to the new Monarchs and secondly of anathema towards Papists in particular and all foreign pretenders to the throne in general. Indeed, there were some memorable passages in which they declared that the rights and liberties upon which they insisted were ‘the true, ancient and indubitable rights and liberties of the people of this kingdom’, which should be ‘firmly and strictly holden and observed . . . in all times to come’; and other passages in which it was made crystal clear that any Catholic or person marrying a Catholic should be debarred from the throne, successors to the throne should swear a Coronation oath to uphold the Church of England, and in the ghastly event of a Papist seizing the throne, ‘the people of these realms shall be and are hereby absolved of their allegiance’ to such a Sovereign.

The Bill of Rights was thus the coping stone of the structure of constitutional Monarchy which had been painfully constructed piece by piece over the preceding years since the execution of the King in 1649. This metaphor implies that it needed the support of other Parliamentary statutes to buttress its durable properties and such buttresses were built during the following years until the succession of George I in 1714.³

Via a long era of consolidation

If constitutional change brought about by frequent political upheavals was a hallmark of the seventeenth century in England, constitutional continuity and consolidation were dominant characteristics of the British Isles in the eighteenth century and into the early decades of the nineteenth century. This long period of constitutional stability at home had as its counterpart the development of a volatile and combative policy abroad – a growing tendency which contributed to no fewer than seven wars against France between the Glorious Revolution in 1689 and the final defeat of Napoleon Bonaparte at the battle of Waterloo in 1815.

It is important to emphasise the singularity of Britain’s political and constitutional experience during the eighteenth century as a Protestant, island polity governed with ‘an ill-defined dualism between a Crown theoretically supreme in matters of administration and policy and a Parliament sovereign in matters of legislation and finance’.⁴ This constitutional dualism, which in formal terms embraced only a small manipulated electorate and an even smaller ruling class, was sustained by success in war, imperial aggrandisement and trade expansion; all of which contributed to a successful and peculiarly British form of nationhood. Or as Linda Colley put it so well, ‘being a patriot was a way of claiming the right to participate in British political life, and ultimately a means of demanding a much broader access to citizenship’.⁵

The period from 1714 to 1782 in Great Britain was described by Sir David Lindsay Keir as an ‘Augustan age of wealth, success, self-confidence and enlightenment’ in which ‘the problems of organizing society and government which had vexed previous ages seemed, under the direction of a capable and energetic aristocracy, to have been triumphantly solved’.⁶ The constitutional arrangements of that time were admired by enlightened Frenchmen, such as Voltaire and Montesquieu, and celebrated by legal apologists such as Blackstone in his Commentaries. The checks and balances between Monarch, Lords and Commons were widely regarded as the secret of British constitutional stability and were usefully supported by constitutional conventions amounting even to political consensus, especially once the Jacobite threat from the Stuart ‘Young Pretender’ to the throne had been dispatched in 1745. Aristocratic ‘influence’ and ‘interest’ were the order of the day and were applied equally by parson and squire in their respective spheres of church and state. The management of the political process on this elitist basis was so effective that His Majesty’s Government did not lose a single General Election from 1714 to 1782 (with the possible exception of Walpole’s defeat in 1741) and this way of doing things was not seriously challenged until the overthrow of Lord North’s Administration in 1782 in the wake of the loss of the American colonies.

The eighteenth century was a golden age for those who controlled pre-democratic local government in that the gentry and merchants who dominated local politics and society in their role as Justices of the Peace were answerable in their interpretation of statute and common law essentially only to the courts. The power of central government remained relatively weak (except in relation to foreign policy and military adventures abroad) and the first two Hanoverian Kings were prepared to entrust the management of national politics to their largely Whig Ministers who controlled Parliament through their placemen. However, it remained ‘His Majesty’s Government’ in more than formal terms, since George III actually presided at Cabinet meetings as late as 1779 and 1781. The convention that there should be a ‘Prime Minister’ had emerged during the long political ascendancy of Sir Robert Walpole (1721–42), although his power and that of his successors in the office depended upon both their ability to retain the personal favour of the Monarch and their effectiveness in leading and managing Parliament.

The lasting influence of the post-1689 constitutional settlement was nowhere more visible than in the respect which successive Whig Administrations after 1714 paid to the conventions of the constitution. With the single exception of the 1737 Act which required that all stage plays should be licensed by the Lord Chamberlain, none of the statutes which buttressed the 1688–89 settlement was repealed or amended during the first half of the eighteenth century. It was plain that Sir Robert Walpole and his colleagues understood very well what to leave alone and had no appetite for stirring up any constitutional controversy. The system continued to work well in the interests of the political class for most of the eighteenth century. It was cemented and underpinned by Crown patronage for the ‘insiders’ and the very restricted (and often corrupt) franchise which controlled and limited ‘new entrants’ into the political market. Indeed, the fruits of the system had been made more attractive by the 1715 Septennial Act, which extended the life of Parliaments to seven years and which was to remain on the Statute Book until the 1911 Parliament Act; and by the fact that the House of Commons insisted upon retaining the right to self-regulation by adjudicating upon any disputed election results and banning any reports of its own proceedings. In short, Parliament, as a gentlemen’s club for members of the ruling class, held constitutional sway virtually unchallenged by either the Monarch from above or the people from below for the best part of a hundred years.

However, at the very time when the methods of eighteenth-century politics might have seemed most entrenched, the members of the ruling class began to fall out among themselves and popular discontent with the system began to grow. Under George III the so-called Rockingham Whigs found themselves excluded from office when Lord North became Prime Minister in 1770 and they came to resent the way in which the system of political preference and patronage was used against them. At the same time popular pressures for reform had built up in London and elsewhere, notably following the 1768 Middlesex Election when the radical John Wilkes was elected three times by the electorate but expelled three times by the unreformed House of Commons for having successfully challenged the political Establishment on the issue of seditious libel. The result was that the newly formed ‘Society of Supporters of the Bill of Rights’ called for the implementation of radical political reform, including a wider and more democratic franchise, the exclusion of placemen from Parliament, the subordination of MPs to the wishes of their constituents, and the introduction of annual Parliaments. The origins of the constitutional changes which were made in the nineteenth century can be found in the first stirrings of rebellion and revolt during the second half of the eighteenth century. Successive Tory Administrations led by Lord North from 1770 to 1782 conducted what was essentially a rearguard action against opposition on two flanks from the excluded Rockingham Whigs and from the populist radicals. Even the Pitts, father and son, recognised the expediency of some electoral reform to create a wider and more publicly acceptable franchise. In 1770 Chatham (Pitt the Elder) put forward a proposal that there should be a third member for each County; and in 1782 Pitt the Younger propose...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Illustrations
• Preface
• Part I: The Legacy of History
• Part II: Issues of Identity and Territory
• Part III: Modernising Government
• Part IV: Other Forms of Institutional Modernisation
• Part V: New Rules, Methods and Political Relationships
• Part VI: A Reformed United Kingdom with a European Future
• Appendices