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Does the United Kingdom Still Have a Constitution? by Professor Anthony King (2001-06-04)

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  • Sweet & Maxwell; 1st Edition edition (2001-06-04) (1656)
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  • By James E Geoffrey II on October 27, 2003

    In his fascinating Hamlyn Lectures series book, "Does the United Kingdom Still Have a Constitution?," Professor Anthony King examines the changes that have been made in Britain's "unwritten constitution" over the last 20 years. The book is analysis, not advocacy, and what it describes is a remarkable transformation in the way Britain governs itself. That transformation is significant, though perhaps not quite as unique as King suggests.In his book, King specifies that a constitution is the "most important rules" that regulate relations between the various parts of a government and between the parts of the government and the people. In this connection, King makes clear that this includes both written statutes and unwritten customs.King then goes on to define two archetypes of constitution, the "power sharing" and the "power hoarding." The former, largely exemplified by the constitution of the Netherlands, distributes power widely amongst various political institutions, seeks to create a framework for the development of a consensus among contending groups, and establishes a system in which accountability is obscure and elections do not necessarily determine who will govern. The alternative "power hoarding" constitution, exemplified by the British system, concentrates power in a single governing body, pits contending factions against one another in a confrontational framework, makes a sharp distinction between governors and governed, and creates an electoral system where the government is strictly accountable to the governed and in which the outcome of elections is crucial to determining who shall govern.King concludes that a breakdown in party loyalty, the rise of the European Union, the granting of independence to the Bank of England, devolution to Scotland, Wales and Ulster, the development of a multiplicity of electoral systems other than the traditional "first-past-the-post" system, House of Lords reform, the incorporation of the Human Rights Act into British law and the rise of judicial review as a tool of British judges have all combined to break apart the old British Constitution. King argues that it has been replaced by a "power fractionated" system, wherein the government remains essentially centralized, but power is more diffuse. King notes that, in effect, the British system has been changed without any conscious "fixed principles of reference" to guide it.It is hard to fault King's analysis or its sweep. King gives due consideration to almost every aspect of Britain's constitutional change, and he does so in language that is, for the most part, scientifically and determinedly neutral. Only occasionally does a hint of King's own preferences come into play. For example, he notes that, with the reduction in the number of hereditary peers in the House of Lords, it has become a more "rational" body. That the upper chamber worked well for 500 years suggests that it is arguable that it is perhaps more rational than the mishmash of a priori plans that have been proposed - so far unsuccessfully - to alter it. As Edmund Burke noted, "rational" can be as much about what works well in a given historical context as what seems abstractly logical. That said, King, by and large, takes the tone of scientist, not advocate.If there are any faults in the book, it is King's failure to address the question of the monarchy. King is too quick to dismiss it as a figurehead institution whose powers are merely symbolic and ceremonial. For the most part, that is true, but given King's emphasis on the informal components in any constitutional order, this dismissal of a constitutional office is odd. The monarchy both is sustained by, and helps to sustain, a culture of deference that, although certainly frayed, is still an integral part of the British political, and therefore constitutional, structure. (How else could British politicians get away with transferring wholesale lots of British sovereignty to the EU while generating only the faintest peep from the British public at large? Nothing comparable could happen in America where such deference to elected leaders is nonexistent.) In addition, the monarchy, as scholars have noted, has helped to make change seem less radical and therefore more acceptable.Moreover, the monarch continues to have the ear of the prime minister in his or her weekly meetings - to what political effect is unknown - and at the end of the day, the monarchy is the ultimate constitutional backstop and greaser of skids. In the event of a hung parliament, for example, it would be almost entirely in the hands of the monarch to determine who is asked to form a government. Also, more significantly on a day-to-day basis, the prime minister can often use the "Queen's Prerogative" to initiate certain actions without recourse to parliamentary approval. These are not insubstantial points, and King can be gently taken to task for not taking the institutional, political and cultural significance of the monarchy more seriously.Another criticism is King's failure to note the wider global milieu in which Britain's constitutional changes are taking place. While he compares the British system to the Dutch, King fails to make explicit that what is happening in Britain is the importation of continental and American constitutional presumptions into the British constitutional framework. Historically, the British pointed with pride to the fact that their system was the result of long historical compromise and adaptation. An overarching philosophy was deemed unnecessary. In fact, what is happening now is that, gradually, the British have begun to import into their thinking certain American and European assumptions about a constitution as a rationalized structure for protecting certain political freedoms and civil rights. Far from being something unique to Britain's political life, what is happening is that Britain's constitutional identity is merging more and more with the world around it.Nevertheless, such criticisms are trivial compared to what Professor King has produced. This book is a highly readable and fascinating look at what a great country has done with its venerable institutions, and whether Professor King intended it or not, it is a timely warning to those who value Britain's distinctive contributions to history and the world.


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