Ireland’s history within the United Kingdom is, not to put too fine a point upon it, complicated. The question of the shared constitutional history of Ireland and Great Britain is more complicated again by the uncodified nature of the constitution of the United Kingdom. This chapter explores the constitutional links between Ireland and the United Kingdom after 1800. It does so by examining both the experience of constitutionalism in Ireland, and the manner in which this experience was understood and how it influenced constitutional development in the United Kingdom.

Constitutionally, the twenty-first century begins in 1997 with the election of the New Labour government, a government committed to constitutional reform. Most of the New Labour reforms will probably prove to be irreversible. Indeed, the Labour government of 1997–2010 may well be more remembered for these constitutional reforms than for anything it did in the social and economic sphere. And the reforms did not end with Labour’s defeat in 2010. They were continued by David Cameron’s Conservative/Liberal Democrat coalition government (the first peacetime coalition since 1931), which ruled Britain between 2010 and 2015.

The rough chronological boundaries of this chapter will be 1800 and 1921. These are defined by the structure of the United Kingdom, which itself defined the key questions in constitutional history that were discussed in this period. In 1800 the island of Ireland, all thirty-two counties, joined Great Britain, which had been formed in 1707 by the Union between Scotland and England. This was the period of the maximum extent of the United Kingdom. In 1921, following the negotiations at the end of the Irish War of Independence, the island of Ireland was partitioned, twenty-six counties forming the Irish Free State and the six remaining counties in the north-east constituting Northern Ireland. The government of Northern Ireland was subject to a scheme of devolution under the Government of Ireland Act of 1920. This had provided for both northern and southern parliaments, only the former was established.1 It remained in place until the imposition of direct rule in 1972. The nineteenth century, therefore, was an age of two unions and this had huge significance for constitutional developments.2 Not only were the Unions themselves matters of great controversy but the three kingdoms, four nations, posed immense problems in relation to questions of church and state, local government, the land and the issue of the extension of the franchise. The constitutional development of the United Kingdom of Britain and Ireland was complex. The Union state incorporated several constitutional traditions and understandings of the constitution, and a range of challenges to its integrity. The British constitution, most often seen in terms of an English constitutional tradition, was thought of by contemporaries implicitly and explicitly in a comparative context.

The continuous history of the Irish parliament runs from 1692 until that institution’s dissolution at midnight on 31 December 1800. Of course, many parliaments had been held in Ireland before the 1690s – the first was held in 1264 at Castledermot in county Kildare – and in subsequent centuries there were many others summoned: to assent to taxation or vote supply for the monarch’s government or their wars, to enact the key statutes of the Protestant Reformation in the 1530s, to transform the Lordship of Ireland (1171) into the Kingdom of Ireland (1541), to confirm the plantations of the early seventeenth century, and to approve various land settlements in the 1660s. Over the years, these parliaments had taken on a recognisably modern appearance. That summoned in 1264 may in fact have been merely a Great Council with little or no representative function, being made up of barons or magnates of the Irish lordship, but in the parliament summoned in 1297 there were two knights elected from each shire and liberty of the ‘Englishry’ (=English colony in Ireland) and they had full power to bind their communities to whatever was enacted in parliament. Irish parliaments met frequently during the fourteenth century, and by the end of that century it is clear that the commons – as those elected to serve were termed – had established a right to be present at any assembly that called itself a parliament.2 However, from the fourteenth to the seventeenth century, Irish parliaments, by now comprising both a House of Commons and a House of Lords, were summoned infrequently, usually for a specific purpose and with lengthy gaps between them. Thus, during the reigns of the Tudor monarchs (116 years) there were just 14 parliaments summoned in Ireland, three of which were of very short duration, and Charles II’s Irish parliament, 1661–66, was the last until 1692.3

The statute known as the Act of Settlement1 was enacted in 1701. As its name suggests, it amended or ‘settled’ the royal succession – the second such amendment in little over a decade. In 1689 the Bill of Rights2 had not only declared Prince William of Orange and his wife Princess Mary to be King William III and Queen Mary II of England, it had also vested the royal succession firstly in the survivor of them, then in Mary’s descendants, next in her younger sister Princess Anne and her descendants, and finally in the descendants of William. At the time this had seemed adequate, but circumstances had proven otherwise. William and Mary were childless, he remained a widower after her death in 1694, and none of Princess Anne’s children thrived. When the last of these died in July 1700 at the age of eleven, it appeared that the childless William III would be succeeded by the childless Anne. The Act of Settlement therefore determined that following the deaths of William and Anne, respectively, and in the absence of descendants, the Crown would pass to Princess Sophia, a granddaughter of King James I of England through her mother, Princess Elizabeth Stuart.

The discovery and excavation in 1939 of the ship-burial at Sutton Hoo, in Suffolk, brought to light an object which was immediately recognised as a piece of early seventh-century regalia – a sceptre, or symbol of its owner’s power from the kingdom of the East Angles.1 The power is presumed to be that of a king, buried with his regalia in his ship, amidst other objects symbolic of his exalted status, and indicative of his great wealth and extended connections. The further interpretation of such a magnificently mysterious object leads in many directions and remains a matter of informed speculation. It is enough that the object itself remains symbolic of whatever it had once been known to symbolise, and thereby of all that cannot be known about the earliest stages in the constitutional history of the United Kingdom.

The constitution of any state, whether written or unwritten, is the set of political, governmental and legal structures and shared values within which the business of everyday politics and governance operate. In fourteenth-century England there occurred the first two depositions in post-Conquest English history, which were precipitated by ‘unconstitutional’ behaviour by the monarchs in question and were effected by ‘unconstitutional’ legal devices on the part of the community of the realm. It was a century of cataclysmic demographic transformation brought about by the Black Death, of almost constant warfare with Scotland and France and of spectacular governmental growth and legal change. It is therefore ironic that, when English constitutional history was at its height, in the late nineteenth and early twentieth centuries, the fourteenth century, parliamentary developments apart, was regarded as a sorry backwater. It was useful only to reflect on how a wrong turning had been taken. ‘We pass’, Bishop Stubbs lamented, ‘from an age of heroism to the age of chivalry, from a century ennobled by devotion and self-sacrifice to one in which the gloss of superficial refinement fails to hide the reality of heartless selfishness and moral degradation’.1

In 1936, the writer J. R. R. Tolkien lamented in a lecture on the Anglo-Saxon work Beowulf that the ‘fairy godmother’ most visibly presiding over the poem’s interpretative fortunes was not, as one might have expected, Poesis but, rather, those honorable, but less directly to-the-point ministering spirits, Historia, Mythologia, and Philologia.1 Of course, these and other noble ladies had long guided the fortunes of a host of similar texts and disciplines. Particularly tenacious at the time Tolkien was writing – and it is worth remembering that he was born in South Africa in 1892 – was the grip maintained by that exacting mistress Teleologia on the field of English constitutional history.2 Stubb’s Select Charters was first published in 1870 and his Constitutional History in 1873; his influential writings traced the origins of representative government in England back to liberty-loving Teutons in the forests of ancient Germania. As late as the 1950s, the righteous – and implicitly racialized – inevitability of this line of descent was still being taught as history to English school children.3 Stubbs’s own works remained part of the Oxford curriculum through the 1970s. In like manner, historians working in the pre- and post-war periods, often from the lofty academic common rooms of All Souls College Oxford, charted the progress of colonial cultures from darkest ignorance to the light of self-governance under the benevolent guidance of Mother England. Westminster became in their works a model for human society as a whole, the telos of a new world order grounded in justice and fair play.4

The British constitution has always been an imperial constitution. To deny this is a common, if mistaken, position in the civil war over its true nature. The institutional structure and ideological discourse of the British constitution always extended beyond the pale of England and the English people. For nearly a millennium the British imperial constitution has expanded and contracted across the globe to govern millions of disparate peoples as subjects of a common Crown. The Norman reconstitution of the English nation began by fusing the multiplicity of local laws into a single common law for English people. Over the seventeenth century the rise, demise and then compromise of the Crown against Parliament was played out in a long civil war fought across the Atlantic and fuelled by novel political arguments drawing on new colonial knowledge about Indigenous peoples. A second civil war in the following century saw most American colonists break free from the imperial constitution, which was then reconstituted to satisfy some remaining subjects and to suppress others. In the nineteenth century a third civil war of sorts erupted across the empire as Hindu and Muslim, Métis and Māori, and Black men and women from Jamaica to the Gold Coast rose up in armed resistance to British imperial governance. Each rebellion drew on a global discourse on the British imperial constitution that justified or rejected competing political visions of collective life.

Scottish constitutional history has become a subject of much interest in recent decades. Since the Union came into force in May 1707, Scotland has been one component of a complex and dynamic state. The Union itself has been described as an ‘enigma’ that defies easy or conventional definitions.1 Britain is simultaneously ‘unitary’, in the sense that sovereign power, to this day, rests with the ‘crown-in-parliament’ at Westminster, and ‘pluralistic’, because the Treaty continues to guarantee Scotland (more than Wales and Northern Ireland) considerable autonomy in civil affairs.2 In this respect, the establishment of a Scottish parliament in 1999 is simply the belated democratisation of what has always been a distinct ‘national’ politics. It has also (re)kindled debates on Scotland’s possible constitutional futures and this has included reflection on Scotland’s pre-Union heritage. These debates were aided by the creation of an accessible online edition of the records of the Scottish parliament to 1707.3 The renewed interest in Scottish parliamentary history has complemented endeavours in the field of political thought, where attention has focused on the centrality of kingship to Renaissance and early modern discourses. Certain questions have been thrown into sharper relief as a consequence of these inter-related developments. How did abstracted conceptualisations of the political community inform the ways in which people engaged with its governing and representative institutions? How were the boundaries of legitimate political action negotiated and renegotiated over time? To what principles were political actors expected to conform and what happened when those principles were challenged?

By the early twentieth century, democracy was in the ascendant. Not all observers and practitioners were enthusiastic about this development. But, whether favourable towards it or not, they came to accept the predominance of the concept that the people were the ultimate source of political authority.1 An example of a grudging acknowledgement that confirms the strength of the conceptual transition that had occurred came from the constitutional historian, William Sharp McKechnie. He observed in his 1912 work of contemporary analysis The New Democracy and the Constitution that the public pronouncements of politicians suggested ‘the triumph of Democracy in Great Britain is now assured’ McKechnie noted a tendency as common to ‘Conservatives and Liberals as’ as it was among ‘Socialists and Labour leaders’ to display ‘[a] fervent and almost servile eagerness to interpret and to execute “the people’s will”’.2

‘[O]ur whole constitutional law seems at times to be but an appendix to the law of real property.’1 At no time in English history was this aphorism truer than in the aftermath of 1066; indeed, it became uniquely so as a consequence of the kingdom’s conquest. England’s legal tradition was already distinctive prior to that point. The circumstances of the Conquest, and the rapid substitution of a new aristocracy of foreign settlers, rendered it doubly so. The importance of the Conquest and its implementation in the development of English law, and especially the law of real property, can scarcely be overstated.

Readers of this chapter might be left with doubts whether England had a constitution in the fifteenth century and whether, if there was one, it underwent any significant change over the century. Difficulties in governing the realm, ambiguities about power and authority, and a fundamental lack of consensus about what constituted and who had a legitimate right to rule persisted from the opening years of the period through to its end. The only notable progress recounted here was in procedures and practices in parliament. This difficult century left England with a hunger for new assertions of power and authority in the succeeding one.1

‘For Wales – see England’. For much of the period since the Annexation of 1284, the constitutional history of Wales might be summed up neatly in this oft-quoted, and rather dismissive, line from the Encyclopaedia Britannica.1 Edward I’s settlement set the parameters within which Wales was to operate in terms of government, the administration of the law and the role of the Church, for 250 years; and the so-called ‘Act of Union’ (1536 and 1543) carried the process further, assimilating governmental and legal practice in Wales further to the English model. Yet, as this chapter will suggest, ‘For Wales – see England’ does not tell the full story of Wales’s constitutional history. During the nineteenth century, as a viable strain of political nationalism grew up in the principality, its proponents looked to the example of Ireland as a pattern on which to model their demands. During the twentieth, it was Scotland that provided the inspiration for politicians now anxious for a greater measure of devolution – something finally achieved in 1997. If the first five centuries after annexation saw Wales sublimated to English constitutional imperatives, the nineteenth and the twentieth saw Wales define its own nationhood by active engagement with the other smaller nations within the United Kingdom. In this chapter these three phases of Welsh constitutional development will be examined in turn, and it will be suggested that the Wales which received a degree of institutional independence in 1997 was a very British creation.

The British constitution’s global historical resonance is in no small part due to the extent and might of the British Empire, which touched the lives of more of humanity than any other in history. The imperial factor compelled the wide international importance of the British constitution and its history, which would otherwise be disproportionate to the clouded hills of an archipelago in the north Atlantic. In fact, Britain’s constitution, history, law and politics were analysed by all manner of people abroad in far greater numbers than those at ‘home’. Different lessons were learned. Gandhi, for example, who was admitted to London’s Inner Temple in 1888, in his early political career, looked back at Queen Victoria’s 1858 proclamation as ‘the Magna Charta of the Indians’1 and, till the end of his life, retained a certain ‘romantic veneration’ towards the British constitution and what it might do for India.2 On the other hand, his close follower Subhas Chandra Bose, who had also spent time in Britain as a student, in his 1938 presidential address to the Indian National Congress, warned, as in Ireland and Palestine, that ‘British ingenuity’ would ‘ruthlessly’ find a ‘constitutional device’, which he foretold would lead to the partitioning of India, ‘thereby neutralising the transference of power to the Indian people’.3 These two divergent reactions give some sense of the diversity of ideas the British constitution and history generated even among two familiar colleagues in the same country, both wanting freedom.

The conviction that England’s legal and constitutional histories were substantially different than those of other European countries is relatively widespread. To substantiate this claim, many turn their attention to the seventeenth century, which they identify as a pivotal moment in this parting of ways. According to this portrait, it was during this period that a particular English understanding of law, a ‘common-law mind’, emerged, greatly enabling, among other things, important constitutional developments.1