Constitutional Reform in Britain and France

From Human Rights to Brexit

Elizabeth Gibson-Morgan

• Publisher: University of Wales Press
• Year: 2017
• Print ISBN: 9781786831224
• eBook ISBN: 9781786831248
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Diplomacy & Treaties
• Index: Politics & International Relations

Any attempt at comparing contemporary change in the UK and France is a bold one, since it means discussing two very different countries with strong distinctive constitutional identities. This book places its emphasis on the shared historical, political and cultural background of the UK and France, before focusing on the sweeping transformation of their constitutional frameworks in the past quarter of a century at a national and regional level – with a particular emphasis on Wales and Scotland – which culminated in the June 2016 referendum on Britain's EU membership. Instead of examining each country separately, however, as is traditional, this study breaks new ground by explaining the pattern of institutional development in Britain and France from a comparative Franco-British perspective. It explores the complexities of recent constitutional change in both countries in an original and comprehensive way, and gives both British and French readers a deeper understanding of the two countries that have some much in common even though Brexit could drive them apart.

Chapter One

Constitutional Change: Codifying the British Constitution, Rewriting the French

The commonly held view is that constitutions originally set up to fight arbitrary power and protect citizens’ rights were carefully drafted in order to last for as long as possible, even for ever. Yet constitutions are living instruments; as the French constitutional law Professor Mélin-Soucramanien wrote: ‘Constitutions are living organisms; they were born, they live, suffer the distortions of political life, experience more or less significant changes and may even die.’¹ They are not isolated texts based on the eternal verities, but were conceived at particular times in history and in specific legal and political contexts. Judge Stephen Sedley, for his part, underlines the importance of ‘the balance of power at the moment of enactment of constitutions’.² In the same line of argument, Professor Robert Blackburn explains that

the key question of balance lies at the heart of any constitutional settlement, which is to be understood not only as ‘the balance of power, between the various branches of government but also between flexibility and rigidity – between making a constitution too easy to change and almost impossible to alter it.³

In France the unity of the Republic is a fundamental principle – almost sacred – and thus cannot be affected by constitutional change.⁴

Nothing is immutable, including constitutions themselves. Sometimes changing a constitution may be the only way of saving it. Besides, most constitutions include provisions, generally a formal process, for their own amendment – thus amending the American, Italian or German constitutions is strictly regulated. For though they are rooted in the past, one of the main purposes of constitutions is to ‘give guidance for the future’.⁵ Revising a constitution generally means ‘modifying a specific set of legal norms following the rules included in the constitution for that purpose’.⁶ It is all the more necessary since ‘no documentary constitution can hope to embrace absolutely every aspect of its politics and government.’⁷ Indeed, beyond the objective of defining collective norms, constitution-makers themselves sometimes deliberately leave gaps or choose a very vague wording to enable the constitution to evolve – and to avoid making it too rigid a text, as was done by the founding fathers of the American Constitution. Thus, for example, many constitutions hardly contain any provisions on the status of political parties or the political process itself, which is the case of the constitution of the Fifth Republic. The practice of power – or the real political life – therefore is not to be found in the text of the constitution but in what Samuel E. Finer and Vernon Bogdanor describe as the ‘working constitution’.⁸ They further explain that ‘each text operates within a matrix of customs, conventions, case law and cautious compromise.’⁹ This is particularly the case in common law countries where, unlike France, case law is an official source of the law.

Several attempts have been made to introduce constitutional change in the United Kingdom and France, yet constitutional debates about constitutional reform have been fragmented, lacking coherence and vision in both countries.¹⁰ France has had a fractured constitutional history: ‘it is probably the country which, since the Revolution has experienced the highest number of constitutions, one constitution every fourteen years on average.’¹¹ French constitutions have always been a permanent work in progress, motivated by the search for the perfect model. Those drafting the 1791 constitution that provided for a constitutional monarchy thought they had written the perfect document and had not included any amendment process, thinking their constitutional arrangements would last for ever.¹² In both countries, constitutional change has very much remained the preserve of experts,¹³ yet in the words of Hywel Williams this ‘is surely too important a matter to be left to constitutionalists alone’.¹⁴ The problem until now – perhaps even more in the United Kingdom than in France – is that constitutional change has not involved civil society and the wider public, whereas it is essential to allow citizens themselves to take part in the process.

Two main questions immediately come to mind: why are constitutions amended and how? Changing constitutions may serve a wide range of purposes, starting with trying to fill in a gap left by the original drafters – by adding provisions or details initially neglected or forgotten. Thus, four years after the adoption of the American constitution, a Bill of Rights was added in 1791. Revising a constitution can stem from a very pragmatic approach aiming at improving mechanisms that did not prove to be workable in practice or not very effective after some years of political and institutional practice – or from trying to make constitutional arrangements more coherent. New political and or legal developments, not to speak of a regime change in a country, such as the accession to independence of Canada (a former dominion), or the fall of communism, which paved the way for the reunification of Germany in 1990, can also generate change. It is significant that all the new states that have won their independence since 1945 have had as a priority to endow themselves with a written constitution. Constitutional change in modern times can also be brought about by the European Union building process. Thus, the successive limits and/or transfers of sovereignty that being a Member State engendered led to significant amendments to make them compatible with existing constitutional arrangements. The Maastricht Treaty very well illustrates the legal and political problems raised in the United Kingdom by (willingly) surrendering some state powers in 1992, but some twenty years earlier the country experienced what can be considered as a legal watershed, introducing for the first time a hierarchy of norms as it is understood in France. The Communities Act 1972 enabled the United Kingdom to join the European Economic Community (EEC) in January 1973. As is stated in the standard work of Erskine May, ‘accession of the United Kingdom to membership of the EEC – now the European Union – on 1st January 1973 qualified the exclusive legislative authority of the United Kingdom Parliament.’¹⁵

Whatever the purpose, changing constitutions should be for the benefit of the people. In the words of Professor Jeffrey Jowell QC,¹⁶ constitutional reform is ‘an intention of moving towards some higher plane or better world’. Yet sometimes constitutional change may be more questionable and its deep motivations mainly partisan – this is what Philippe Ardant, the editor of the journal Pouvoirs,¹⁷ describes as ‘pretext changes’.¹⁸ Some changes can, indeed, be introduced for political reasons in haste and without consultation. The United Kingdom itself has experienced this recently – all the more as the British constitution can be altered at any moment without a formal process, as there are no settled procedures for dealing with constitutional reform in the country. Questionable practices have recently revived the need for rethinking constitutional change in the United Kingdom, not only to make it more efficient but also more transparent as well as more democratic.

To change constitutions, not only is there a need for clear, workable legal mechanisms, but also a political context without which constitutional change cannot be effective. Such a context emerged in France, Italy and many other European countries at the end of the trauma of the Second World War with its urge for a new beginning. Indeed, constitutional change may significantly alter the existing balance of power: hence the need for wide political support. Besides, there is no necessary link between the scope of constitutional change and the political obstacles and reluctance it can encounter. So constitutional change does not only raise complex legal issues but also political ones. Beyond the formal and informal methods of constitutional amendment, what is at stake is the democratic aspect of constitutional change and its legitimacy. We will examine here how well the French and British constitutions are able to accommodate major changes within established structures.

All countries except the United Kingdom have formal processes of constitutional amendment. As there are many different types of constitutions, there is not just one single way of changing constitutions. Besides, all countries have also developed informal methods of constitutional amendment through constitutional conventions and practice. Written constitutions like the French include revising procedures laid down by the original constitution-makers. Thus a comparative approach will be developed between the United Kingdom and France, bearing in mind that there is no perfect constitutional amending process and that constitutions are more than just sets of procedural rules, but are also important political symbols.

The French constitution as a living organism and the British constitution in flux

In most countries, like France, a distinction is made between the constitution as the fundamental rule at the apex of the hierarchy of legal norms endowed with some superior or special status, and ordinary legislation passed by the legislature. Such a distinction becomes particularly meaningful in the constitution-amending process. Yet, other countries like the United Kingdom do not make any distinction between constitutional and legislative bills. Their constitutions are described as flexible constitutions, as opposed to rigid constitutions where some special formal process is needed to change the constitution, such as a two-thirds majority required from parliaments and a ratifying process via a referendum as well as specific bodies in charge of constitutional change. These could be parliaments sitting not as separate chambers but united to form a Congress such as in France. Upper Houses tend to have particular powers and play a more important role than in the ordinary legislative process such as in France where the Senate is much more powerful when dealing with constitutional change.

Thus rigid constitutions include what was described by Samuel E. Finer and Vernon Bogdanor as ‘a more arduous procedure for the abrogation or alteration of a constitutional provision than that established for ordinary laws’.¹⁹ In fact, the level of rigidity might vary according to the procedural differences between the ordinary law-making process and amending the constitution. Far from being a simple technicality or a procedural difference, such a formal amending process – usually more complex and longer than the ordinary law-making process – provides ‘an added protection for citizens’ rights and an aid to political stability’.²⁰

In the constitution-amending process in every democracy, ideally the constituent power should belong to the people, the demos. However, in most modern constitutions the demos is mainly invited to take part in ratifying the revising process only after parliaments have voted constitutional change. So the people may be directly involved in constitutional change via a referendum. Whereas in France national sovereignty belongs to the people²¹ (under article 3 of the constitution of the Fifth Republic²²), in the United Kingdom, Parliament is sovereign.²³ In both countries, in practice, however, the people exercises its sovereignty through elected representatives, in the British House of Commons and the French National Assembly, but also by way of referendum. In the French Republic, which is the archetype of the unitary state, the expression ‘the people’ might be misleading for a British observer since, far from representing the French population in its ethnic, cultural and religious diversity, it is an abstract universal notion standing for French citizens. As Félicien Lemaire explained in his comparative approach between France and Britain, ‘unlike the Anglo-Saxon integrating model which is much more receptive and welcoming to minorities, France does not recognise the minority principle.’²⁴

In the same way, the French Constitutional Council denied the inhabitants of the island of Corsica the status of ‘people’²⁵ – distinct from the French people – as for the French constitutional judge there can only be one people and there can only be one official language. Indeed, under article 2 of the Constitution, ‘the language of the Republic is French.’²⁶ This was not part of the original text of 1958 but was introduced in 1992 following a highly controversial constitutional change, the official aims of which were to protect the French language from the growing influence of English, and to protect France from autonomist aspirations, especially from the Basque Country, though this was not officially asserted. In fact, it proved to be mainly detrimental to regional and minority languages²⁷ and prevented France originally from ratifying the European Charter of Regional and Minority Languages.²⁸ Some limited progress was made in the wake of the Balladur Report of 2008, yet not without a fierce parliamentary debate which set the National Assembly against the more conservative...

Table of contents

• Cover
• Title Page
• Copyright Page
• Contents
• List of Abbreviations
• Foreword
• Introduction
• Chapter One: Constitutional Change: Codifying the British Constitution, Rewriting the French
• Chapter Two: The French Presidency and the British Monarchy: Changed and yet Unchanging Institutions
• Chapter Three: Emancipating and Reforming Parliaments in France and the United Kingdom
• Chapter Four: Better Protecting Human Rights and Strengthening an Independent Judiciary
• Chapter Five: Devolution in the United Kingdom, a Decentralisation Process in France
• Chapter Six: The European Dimension: France and the UK, Partners in Europe
• Conclusion: Towards a New Entente Cordiale
• Bibliography