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The Unwritten Constitution of the United Kingdom

  • John Baker (a1)

There has been much talk of constitutional reform in recent years, but the changes that have actually been taking place have often differed markedly from those that the Government has professed to espouse and have shaken the foundations of the previous system without following any coherent overall plan. Written constitutions are not without shortcomings; the conventions that held the old British constitution in place are in any case difficult to codify or enforce. But a pressing problem with an unwritten constitution is that there is no special mechanism for constitutional change. Recent reforms have therefore become associated with short-term political expediency and spin. The cure is not simple.1

As a tribute to Professor Sir John Baker QC, who has served as a member of the Editorial Board since the Ecclesiastical Law Journal's foundation and energetically continues to do so,2 I am pleased to reproduce the lightly edited text of his British Academy Maccabbaean Lecture.3 Delivered in 2009, though still topical today, it provides a cautionary critique of the direction of travel in the evolution of the United Kingdom's unwritten constitution which I hope will serve as a prelude to an occasional series of articles and comment in the pages of this Journal considering the role of the spiritual within the constitution and the established nature of the Church of England in the twenty-first century. Matters that have been ignored or marginalised in the recent constitutional revolution include the role of the Prime Minister in the appointment of bishops and archbishops and the ecclesiastical patronage exercised by the Lord Chancellor. [Editor]

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1 The text of this article was first delivered as the British Academy's Maccabbaean Lecture in 2009 and was originally published in (2011) 167 Proceedings of the British Academy. It is reproduced here with permission.

2 Professor Baker's erudite series of pen portraits of leading canon lawyers enhanced early issues of the Ecclesiastical Law Journal and were later reproduced in a lavishly illustrated volume, Baker, J, Monuments of Endlesse Labours (Woodbridge, 1997). This issue sees the first of Professor Richard Helmholz's companion series ‘Notable Ecclesiastical Lawyers’, featuring Roger, Bishop of Worcester: (2013) 15 Ecc LJ 75–80.

3 I have received many helpful comments on the lecture, most of which have been taken into account in revising it for publication, and I am grateful to all who have taken the trouble to help me. I must thank in particular Dr MC Elliott and Professor GW Jones for their many insights.

4 Since the lecture was given, the circumstances have been the subject of investigation by the Constitution Committee of the House of Lords: House of Lords Select Committee on the Constitution, The Cabinet Office and the Centre of Government, 4th Report of Session 2009–10 (HL 30), published in January 2010, at paras 188–217. It was perfectly obvious at the time that the decision had been taken without professional advice or proper circumspection: see, eg, Woolf, Lord, ‘The rule of law and a change in the constitution’, (2004) 63 Cambridge Law Journal 320. The Cabinet Office declined to produce the papers but claimed that it had given advice and (by implication) that the Prime Minister had ignored it. Mr Blair admitted in evidence to the Committee that he had taken the decision on the spur of the moment and that the process was faulty (paras 201–202). The Committee concluded (para 214) that ‘the Cabinet Office was unable to ensure compliance with proper constitutional norms in the adoption of a change of such significance. It is particularly disturbing that these failures occurred without there being any external crisis which might explain, far less justify, such failures.’

5 For the broader picture see Bogdanor, V, The New British Constitution (Oxford, 2009); and for the pre-2004 reforms see L Dingle and B Miller, ‘United Kingdom constitutional reform’ (2004), <>, accessed 3 October 2012. The Human Rights Act 1998 is also a landmark, though in a different way. Britain was bound by the European Convention on Human Rights long before 1998 and that regime still takes priority. The Luxembourg Court, indeed, regards domestic declarations of incompatibility under the Act as legally ineffective. The Act has nevertheless begun to alter the judicial culture in Britain and may have paved the way for judicial review of legislation at some time in the future.

7 The present administration [ie the Labour Government of 1997–2010] has achieved a particular reputation for pursuing hidden policies that differ markedly from those announced in public. The most recent example to be uncovered is the policy of unrestricted mass immigration, which was revealed by a former Government adviser at the end of October 2009: see the article by M Marrin, The Sunday Times, 1 November 2009, p 20.

8 This was a matter of comment before 2004: see, eg, the prophetic assessment by Oliver, D, Constitutional Reform in the United Kingdom (Oxford, 2003), pp 390391.

9 See Allen, G, The Last Prime Minister: being honest about the UK presidency (second edition, Thorverton, 2003), p 3: ‘The UK Presidency remains unchecked, and it has shown no willingness to seek partnership with the legislature, or the wider nation, even when such a partnership would clearly assist its objectives.’

10 Parliament Act 1911, 1 & 2 Geo V, c 13, s 2(1); Jackson v Attorney-General [2006] 1 AC 262.

11 ‘Elective Dictatorship’, Richard Dimbleby Lecture, published in The Listener, 21 October 1976, pp 496–500. He was, however, more concerned at the use of this ‘dictatorship’ by governments with a small majority than by those with a large one.

12 Mr Blair's style of government is now known as ‘sofa government’, a term popularised by the report of the Butler Inquiry. Mr Straw has distanced himself from ‘so-called sofa government’: Hansard, 24 February 2009, col 160.

13 This is no new observation. Charles Greville attributed the failure of Wellington's administration in 1830 to the fact that having chosen ‘with a very slender stock of knowledge to take upon himself the sole direction of every department of Government, he completely sank under the burden’: Greville, C, The Greville Memoirs, ed Reeve, H (Cambridge, 2011), p 83. Sir Robert Peel also tried to cover all departments and suffered a breakdown. Cf Allen, The Last Prime Minister, p 7: ‘Exhaustion, defeat, humiliation are the only possible endings to a political career in a unitary system.’

14 See the perceptive and disturbing study by Oborne, P, The Triumph of the Political Class (London, 2003).

15 See Sir Stephen Sedley's comments in Lord Nolan and Sedley, S, The Making and Remaking of the British Constitution (London, 1997), pp 2223.

16 See the valuable report and warnings from the House of Lords Select Committee on the Constitution, Fast-track Legislation: constitutional implications and safeguards, vol 1, 15th Report of Session 2008–9 (HL 116-I). There have been perhaps as many as 500 instances in the last 20 years: ibid, para 21. The usual pretext is that the Government wishes to be seen to be acting speedily in response to recent crises, such as threats from terrorists, pit-bull terriers (the Dangerous Dogs Act 1991) or troublesome judges. The consequence is not merely a lack of time for debate in Parliament, but the lack of scrutiny by Select Committees and the prevention of comment by interested parties outside Parliament.

17 House of Lords Select Committee on the Constitution, Fast-track Legislation, paras 98–106.

18 J Straw, ‘Modernising the Magna Carta’, lecture at George Washington University, 13 February 2008, <>, accessed 9 October 2012.

19 The Prime Minister announced in the House of Commons on 10 June that it had held its first meeting the previous day. The Minister of Justice stated shortly afterwards that he was still taking the lead: House of Commons Justice Committee, 11th Report, Session 2008–9 (HC 923), Evidence, q 2. (The Thai military junta in 2006 called itself the Council for Democratic Reform.)

20 Ministry of Justice, The Governance of Britain (July 2007), Cm 7170; The Governance of Britain: Constitutional Renewal (March 2008), Cm 7342. Rather oddly, the first item addressed in the White Paper is the control of public protest near Parliament.

21 Joint Committee on the Constitutional Renewal Bill, 31 July 2008, Report, para 294. Clause 8 of the Bill requires the Minister for the Civil Service to publish a special advisers' code, but by clause 7(5) it need not require special advisers to carry out their activities with objectivity or impartiality.

22 It has been suggested that all prerogative powers should be abolished: see, eg, Tomkins, A, Our Republican Constitution (Oxford, 2005), p 134. Forty years ago, Diplock LJ remarked that they were a continuing residue of absolute power: R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 QB 864 at 886.

23 This prerogative is not among those which the Government listed for consideration in Governance of Britain.

24 Besides the Lord Chancellor's Department, remodelled as the Department for Constitutional Affairs (2003) and then the Ministry of Justice (2007), we might instance the Department of Trade and Industry (1970), which after various splits and mergers became the Department of Business Enterprise and Regulatory Reform (2007) and then the Department of Business, Innovation and Skills (2009) after merging with the Department of Innovation, Universities and Skills (2007). Education seems recently to have disappeared by that name.

25 Lord Neuberger MR said on Radio 4 on 7 September 2009 that it was settled over a glass of whisky and that no thought had been given to the possible constitutional consequences. The presenter of the programme, Joshua Rozenberg, estimated the cost to be at least £80 million. It is true that there was a consultation paper, Constitutional Reform: a Supreme Court for the United Kingdom (July 2003), CP 11/03, but the ‘consultation’ followed rather than preceded the Government's decision, and views were not sought on whether such a court was necessary or desirable.

26 It is an open secret that, for this reason, the reform was strongly opposed by the senior judiciary. At the Lord Mayor's dinner to the judges in July 2009, the Lord Chief Justice complained that the decision was announced informally by a minister writing in a Sunday newspaper.

27 Announcement on the Cabinet Office website. Cf Woolf, ‘Rule of law’, p 323, who made the further point (in relation to the Department of Constitutional Affairs) that ‘the Department could give directions to the Court Service staff which result in the courts becoming a tool of Government policy’.

28 On the potential politicisation of the judiciary, see Bogdanor, New British Constitution, pp 65–68. Professor Bogdanor concluded, rather optimistically, that the appointments procedure has been isolated from political interference. In his view, this would make it safe for judges to become more answerable to Parliament and Select Committees with respect to their general approach: ibid, pp 85–86.

29 Scarman, Lord, ‘The Shape of Things to Come’: the shape and future law and constitution of the United Kingdom (Warwick, 1989), p 12. See Blackstone, W, Commentaries on the Laws of England, vol 1 (Oxford, 1765), p 142: ‘In all tyrannical governments the supreme magistracy, or the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty. The magistrate [legislator later editions] may enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed … with all the power which he as legislator thinks proper to give himself. But, where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power, as may tend to the subversion of its own independence, and therewith of the liberty of the subject’. Cf ibid, 51, 154, on the same theme.

30 Pepper v Hart [1993] AC 593; see Baker, J, ‘Statutory interpretation and parliamentary intention’, (1993) 52 Cambridge Law Journal 353357. It was dissented from by the serving Lord Chancellor, Lord Mackay of Clashfern, albeit on pragmatic rather than constitutional grounds. There is now reason to hope that the aberration will not be followed: Kavanagh, A, ‘Pepper v. Hart and matters of constitutional principle’, (2005) 121 Law Quarterly Review 98122.

31 This is particularly true of back-benchers on the Government side. It is widely rumoured that Mr Blair, emboldened by a large majority, once ordered Labour members to spend less time in the Commons, where their presence was not needed, and devote their time to spreading the Government word out in the country.

32 Professor Bogdanor has gone so far as to say that we should no longer speak of an elective dictatorship: New British Constitution, pp 288–289.

33 The Guardian, 11 February 2004.

34 The Independent, 4 March 2004; Woolf, ‘Rule of law’, p 327 (adding: ‘and should not be contemplated by any government if it had any respect for the rule of law’).

35 The Times, 27 February 2004.

36 House of Commons Constitutional Affairs Committee, 2nd Report, Session 2003–4.

37 It is not clear now what the true Government policy has been: see above, n 7.

38 Rasul v Bush, 542 US 466 (2004). An amicus curiae brief was submitted by legal historians. A similar brief was submitted in Boumediene v Bush, 476 F 3d 981 (2008), in which the Supreme Court made only a passing reference to history.

39 According to some commentators, the Anti-terrorism Act of 2001 was the first time since the seventeenth century that habeas corpus had been withdrawn. That is not quite right, since it happened for brief periods in 1745, 1791 and 1817; but it is still a rare event.

40 For the passage of the Anti-terrorism, Crime and Security Act 2001 (passed in the wake of 9/11) and the incidental derogation from the Human Rights legislation – the United Kingdom being the only country in Europe to think this necessary – see Tomkins, A, ‘Legislating against terror: the Anti-terrorism, Crime and Security Act 2001’, (2002) Public Law 205220; A v Home Secretary [2005] 2 AC 68 (Belmarsh Prison case).

41 An exception was the Emergency Powers Act 1920, 10 & 11 Geo V, c 55. This was passed during the miners' strike of October 1920, reviving some of the temporary powers that had been introduced during the Great War. The powers were not invoked until the miners were locked out in March 1921 for refusing to accept cuts in pay; the situation then was considered so grave that troops were placed on alert, and steps were taken to raise a national volunteer force (numbering some 70,000 when it was stood down in April). The original typed warrant dated 31 March 1921 for the proclamation declaring the state of emergency, with the sign manual of King George V, is in the writer's collection (MS 336).

42 Perhaps there was more caution even in wartime. It is noteworthy that when in 1940 the Security Executive – worried about communist revolutionaries – proposed a new defence regulation making it an offence to attempt to subvert duly constituted authority, the Permanent Under-Secretary at the Home Office (Sir Alexander Maxwell) advised that: ‘Our tradition is that … every civilian is at liberty to show, if he can, that … the duly constituted authorities are composed of fools and rogues … This doctrine gives, of course, great and indeed dangerous liberty to persons who desire revolution … but the readiness to take this risk is the cardinal distinction between democracy and totalitarianism.’ What is even more remarkable is that the wartime Government accepted his advice: Hinsley, H and Simkins, A, British Intelligence in the Second World War, vol 4 (London, 1990), pp 5758.

43 This euphemism was unknown to the law a generation ago, though it appears in several recent statutes: eg Representation of the People Act 2000, s 11. It may have originated with delegated legislation, on the footing that it is inappropriate for a delegated authority to ‘repeal’ its parent authority. It was used for a similar reason by the Divisional Court in 1989, when it allowed EU law to override a parliamentary statute: R v Secretary of State for Transport, ex parte Factortame [1991] 1 AC 603.

44 It has recently been urged by a House of Lords Select Committee that there should be a presumption in favour of inserting a sunset clause into all legislation passed with unusual haste: House of Lords Select Committee on the Constitution, Fast-track Legislation, para 198.

45 The Landsbanki Freezing Order 2008 (SI No 2668), freezing the assets of the Icelandic Bank, was expressly made under the 2001 Act.

46 According to the Parliament website, the name alludes to the Statute of Proclamations 1539, which gave the king power to legislate by proclamation. This is very misleading. The 1539 statute certainly empowered the king to issue proclamations with the advice of his Council, and enacted that such proclamations should be ‘obeyed, observed, and kept, as though they were made by act of Parliament’. But this raised fears at the time, which were long debated in Parliament, and in the event the Commons were unwilling to change the constitution by giving the king an unbridled unilateral power to legislate. The statute made it clear that it did not authorise proclamations to be made to the prejudice of any person's life, liberty or property, or in breach of any laws or customs currently in force. It was repealed in 1547. See Baker, J, Oxford History of the Laws of England, vol 6 (Oxford, 2003), p 64. The Act concerning Peter-Pence 1533 (25 Hen VIII, c 21) gave the king power to abrogate the Act by letters patent; but the power was limited to that statute, which conferred on the king ecclesiastical powers that he was seen as having the right to decline.

47 Lord Rippon, ‘Henry VIII Clauses’, (1989) 10 Statute Law Review 205–207.

48 Hewart, Lord, The New Despotism (London, 1929). This led to the report of the Donoughmore Committee, which seems now to be completely ignored.

49 Legislative and Regulatory Reform Bill 2006, cl 2. This was an inordinate extension of the power contained in the Regulatory Reform Act 2001 (c 6), s 1. Among earlier vague but more circumscribed precedents was the Local Government Act 2000 (c 22), s 6, which empowered the Secretary of State to amend, repeal, revoke or disapply any enactment that obstructs local authorities from taking steps to promote the well-being of their communities.

50 There were more signatories, but only six names were published. See also Baker, J, ‘A charter for despots’ (the editor's title), (2006) 10(5) Parliamentary Brief 79; J Spencer, ‘Contempt of Parliament’, ibid, 5–6.

51 Speech of 13 June 2006. It was the same Lord Lipsey of Tooting who wrote approvingly in a book review two years earlier of ‘a new philosophy for Labour capable of turning into reality Blair's dream of eternal power’ (New Statesman, 21 June 2004).

52 ‘Letter from the Chairman to the Lord Chancellor’, 23 January 2006, printed in House of Lords Constitution Committee, 11th Report of Session 2005–6 (HL 194), p 24, appendix I.

53 Baynes, N (ed), The Speeches of Adolf Hitler, vol 1 (London, 1942), pp 246, 420; Bullock, A, Hitler: a study in tyranny (revised edition, London, 1964), p 269. The initial pretext was the Reichstag Fire, presented as an act of terrorism. Six days earlier, the Reichstag Fire Decree had suspended the German equivalent of habeas corpus, curtailed freedom of speech and assembly, and authorised telephone tapping.

54 The Law of 1933 has been described as ‘a vital step towards consolidating [Hitler's] dictatorship’: Kershaw, I, Hitler 1889–1936: hubris (London, 1998), p 468. Hitler took the trouble to have it renewed twice when it expired.

55 The Bill was introduced by Mr Straw in July 2009, overtaking the Constitutional Renewal Bill introduced in March. A similar provision (clause 57) in the earlier Bill was criticised by the Joint Committee on that Bill on 31 July 2008 (HL 166-1), paras 361–362.

56 Clause 75 of the Banking Bill introduced on 7 October 2008 gave the Treasury what is expressly called a ‘Power to change law’, a power by Order to amend any statute or rule of common law ‘for the purpose of enabling the powers under [Part I] of the Act to be used effectively’; and it provided that such an Order might make provision with retrospective effect ‘in so far as the Treasury consider it necessary or desirable for giving effect to the particular exercise of a power under this Act’. The clause was criticised by the Select Committee on the Constitution, because of its retrospective application: House of Lords Constitution Committee, 3rd Report, 21 January 2009 (HL 19); 11th Report, 18 May 2009 (HL 97). The words ‘or desirable’ surpass even the Enabling Law of 1933, which in its terms was limited to necessity. In November 2008, the Government introduced a Planning Bill, clause 118(5) of which would have empowered commissioners to modify or repeal statutes relating to any matter in respect of which they might make an Order. This seems to be the first attempt to confer legislative powers on a body, as opposed to a Minister.

57 This at least caused an outcry in the newspapers: see, eg, The Times, 28 October 2009, pp 2, 18–19. (Again, it was the House of Lords that saved the day: Hansard, 7 December 2009, col 896.)

58 See Oliver, Lord, ‘A judicial view of modern legislation’, (1993) 14 Statute Law Review 3 (referring to Henry VIII clauses): ‘It is unfair to the citizen, who is entitled in a democratic society to have the rules by which his life is regulated properly debated and scrutinized by his elected representatives. And, by removing the legislation from the competent hands of the parliamentary draftsmen into those of departmental civil servants, it frequently results in drafting disasters.’

59 The courts are now prepared to review Orders even where the parent statute gives the Minister power in subjective language, eg to act as he or she ‘thinks necessary’. For an early example of this approach see Commissions of Customs and Excise v Cure and Deeley Ltd [1962] 1 QB 340.

60 See Rights and Responsibilities: developing our constitutional framework (March 2009), Cm 7577, which is a Green Paper concerning a Bill of Rights. Mr Straw admitted in the Commons that the proposed responsibilities were already law, but ‘scattered across myriad legal texts’. The answer given to the charge that this renders their declaration purposeless is that, even if they would not be legally enforceable by virtue of their restatement, there would be some psychological value in declaring them in abstract terms: see the debate in the House of Commons, Hansard, 23 March 2009, col 37.

61 The Queen's Speech, 17 November 2009: ‘Legislation will be brought forward to halve the deficit.’ The title of the Bill, which has not yet been published [in 2009], seems to have been borrowed from Nigeria.

62 Parliamentary Committee on Human Rights, A Bill of Rights for the United Kingdom?, 29th Report for the Session 2007–8 (HL 1651-1, HC 150-1), published 10 August 2008.

63 House of Commons Justice Committee (chaired by Sir Alan Beith), 11th Report of Session 2008–9, HC 923, paras 61–62. Likewise Mr Straw: ibid, Evidence, q 62.

64 See the cautious remarks in Jackson v Attorney-General [2006] 1 AC 262 at 302 (Lord Steyn), 318 (Baroness Hale), 323 (Lord Carswell), and 327 (Lord Brown). Lord Steyn hinted (p 302) that ‘strict legalism’ might have to give way in an extreme case to ‘constitutional principle’. There was a suggestion at the time of the ill-fated ouster clause in the Asylum and Immigration Bill, above, that the judges might find a way of striking down such a clause if it became law.

65 Marbury v Madison, 5 US 137 (1803) (the power was used very sparingly in the nineteenth century). The Australian High Court has achieved the same power by judicial decision.

66 Bonham v Atkins et al (1610) 8 Co Rep 107, 114; Baker, J, Introduction to English Legal History (fourth edition, London, 2002), pp 210211.

67 Cf R v Cambridge Health Authority, ex parte B [1995] 1 WLR 898 at 906, per Bingham MR (‘Difficult and agonising judgments have to be made as to how a limited budget is best allocated … That is not a judgment which the court can make’).

68 See A Senior in The Times, 6 November 2009, p 37: ‘Our country is being reborn as a satellite of Europe yet, as the revolution is a bloodless one, it passes without protest. We are alone among the member states in not having a written constitution. This makes us vulnerable to European creep, and the dribbling away of civil liberties’.

69 See Baker, J, ‘Human rights and the rule of law in Renaissance England’, (2004) 2 Northwestern University Journal of International Human Rights 2440; Simpson, A, Human Rights and the End of Empire: Britain and the genesis of the European Convention (Oxford, 2001).

70 Eg the right to rescind a contract for breach of condition. The proposal by the European Commission to abolish this right (draft Consumer Rights Directive 2008, art 26) has been criticised by the Law Commission and by the European Union Committee of the House of Lords (18th Report, 7 July 2009). It is not, of course, an absolute right, but may be lost by tacit waiver.

71 See Marshall, G, Constitutional Conventions (Oxford, 1984), p 54: ‘It is the fitting in of the exception clauses that makes the drafting of a written constitution for the United Kingdom such a hopeless, Utopian enterprise.’ By 1984, the convention of collective responsibility (for example) seemed completely dead: ibid, pp 55 ff. See now the full discussion in Bogdanor, New British Constitution, pp 221–228.

72 A complete written constitution would therefore require some simplifications – perhaps, for example, providing that a Prime Minister should be recommended to the Queen by a majority vote of the House of Commons. For this and other possible solutions see Institute for Public Policy Research A Written Constitution for the United Kingdom (London, 1991). This showed that it could not be done succinctly: the draft occupies 126 pages. It is worth remembering, nevertheless, that in the 1950s law professors could write constitutions that seem to have worked for newly independent Commonwealth countries.

73 Eg, a law that no department of state should be created, abolished or merged without an act of Parliament, or that no parliamentary statute should be amended or repealed without some special scrutiny procedure.

74 See Bogdanor, New British Constitution, p 220.

75 See Shifting the Balance: Select Committees and the executive, House of Commons Liaison Committee, 1st Report (2000); Society, Hansard, The Challenge of Parliament: making government accountable (London, 2001); and, only a few days ago, the welcome first report of the Reform of the House of Commons Select Committee, Rebuilding the House (HC 1117), published 12 November 2009.

76 At present this is guaranteed by Standing Order 14(1) of the House of Commons, which itself cannot be altered without Government co-operation: ‘Save as provided by this order, government business shall have priority at every sitting.’ The Select Committee on Reform of the House of Commons, while acknowledging that the Government is entitled to have its own business considered at a time of its own choosing, has proposed the establishment of a Backbench Business Committee.

77 A provision that a statute will expire on a given date unless steps are taken to renew it. It is important to note that such provisions can only work if there is adequate time and information available for Parliament to debate the renewal when the time comes: see the comments in House of Lords Select Committee on the Constitution, Fast-track Legislation, para 70.

78 For some possible solutions to the growing problem of excessive and ill-prepared legislation, see Post-legislative Scrutiny, Law Com No 302 (2006), Cm 6945. The need for post-legislative scrutiny of all legislation was advocated recently by the House of Lords Select Committee on the Constitution: Fast-track Legislation, para 208.

79 See, eg, the Government's White Paper of 14 July 2008, Cm 7438. The Opposition parties have, most regrettably, failed to provide any opposition to this.

80 It remains to be seen whether the new Supreme Court will agree with the Court of Appeal in Jackson v Attorney General [2005] QB 579 as to the limits of the Parliament Act in the constitutional sphere. Although the House of Lords reversed the Court of Appeal in relation to the Hunting Act, and did not accept a distinction between constitutional and other enactments, several members of the Judicial Committee reserved their position as to whether there might be limits: see above, n 64.

81 See Oliver, Constitutional Reform, 200–201.

82 An extensive survey of other legislatures concluded that ‘None of the overseas second chambers studied here achieve the same reputation for expert membership as the House of Lords’: Russell, M, Reforming the House of Lords: lessons from overseas (Oxford, 2000), p 306.

83 There are no overseas precedents to guide us: ibid, p 328.

84 See Bogdanor, The New British Constitution, ch 6, where it is assumed that a reformed Lords must have democratic legitimacy conferred by election. Professor Bogdanor nevertheless sets out cogent reasons why an elected Lords would be less effective than the present House. The same premises have led Lord Bingham to suggest that the House of Lords should be abolished, and the function of scrutinising legislation transferred to a Council of State, of similar size to the present House of Lords but without any legislative function: ‘The House of Lords: its future?’, Jan Grodecki Annual Law Lecture, University of Leicester, 22 October 2009, <>, accessed 9 October 2012.

85 See Oliver, Constitutional Reform, p 384: ‘The political constitution depends heavily upon a culture of self-restraint on the part of constitutional actors. If that culture should disintegrate, then the remaining advantages of the arrangements would disappear and the case for a law-based constitution with more judicialism would become the stronger.’

86 House of Commons Justice Committee, 11th Report of Session 2008–9, paras 38–39. The Lord Chief Justice pointed out in a speech at the Mansion House in July 2009 that introducing judicial review of parliamentary affairs threatened to bring the judiciary into direct conflict with Parliament.

87 Ibid, paras 90–92. See also V Bogdanor, ‘We need a new constitution for Britain’, The Times, 1 June 2009: ‘Important constitutional reform should not be a knee-jerk reaction to crisis, but the result of popular reflection. To be effective, it needs to be a product of popular wishes, not something implemented from on high. All that a government can do is to initiate a debate.’

88 This is helpfully discussed in Bogdanor, New British Constitution, pp 228–230.

89 House of Commons Justice Committee, 11th Report, para 88 (pointing out that the Government's present timetable is over-optimistic).

90 Even Mr Straw now admits that ‘Constitutional change should be approached with caution’: Rights and Responsibilities, p 7. He has expressed the view that a written constitution is 20 years away: J Straw, ‘Modernising the Magna Carta’.

91 This is Professor Bogdanor's suggestion: New British Constitution, p 229.

92 See The Governance of Britain Green Paper of 3 July 2007, which Mr Straw announced as ‘the first step in a national conversation’.

93 Bogdanor, New British Constitution, p 6, notes that during the 1997 election campaign the respondents to a poll put constitutional issues lowest among their priorities (14th out of 14). He attributes this, at least in part, to the absence of a written constitution: ibid, p 10. There is certainly far more interest in constitutional issues in the United States.

94 Hansard, 13 July 2000, col 1097.

95 Cf Lord Carswell in Jackson v Attorney-General [2006] 1 AC 262 at 323: ‘An unwritten constitution, even more than a written one, is a living organism and develops with changing times, but it is still a delicate plant and is capable of being damaged by over-rigorous treatment, which may have incalculable results.’

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