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None, One or Several? Perspectives on the UK’s Constitution(s)

Published online by Cambridge University Press:  07 July 2005

David Feldman
David Feldman*
Affiliation:
University of Cambridge
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Extract

An inaugural lecture is the occasion when the University of Cambridge can look its gift horse in the mouth, weighing the new professor in the balance against his or her distinguished predecessors. The Rouse Ball Professorship of English Law has been held in the past by a long series of distinguished scholars, from Sir Percy Winfield to my immediate predecessor, Sir Jack Beatson whom we are delighted to welcome back today. Their work has influenced generations of lawyers. They certainly influenced me. Before I encountered Criminal Law: The General Part, a great little volume by Professor Glanville Williams, Learning the Law, was my “Guide, Philosopher and Friend” (as it still says on the cover of the latest edition, now edited by my colleague Professor Tony Smith) as I approached the study of law. Another Rouse Ball Professor, the late Sir William Wade, had a formative effect on my understanding of land law and administrative law both through his famous books, Megarry and Wade on the Law of Real Property (now edited by a former Fellow of Downing College, Dr. Charles Harpum) and Administrative Law (now in the hands of my colleague Dr. Christopher Forsyth), not to mention the lectures that I attended as an undergraduate in (softly be it said) the University of Oxford.

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Articles
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The Cambridge Law Journal , Volume 64 , Issue 2 , 23 July 2005 , pp. 329 - 351
Copyright
Copyright © The Cambridge Law Journal and Contributors 2005

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Footnotes

Rouse Ball Professor of English Law and Fellow of Downing College, Cambridge. This is a revised version of the inaugural lecture delivered in the Faculty of Law of the University of Cambridge on Thursday 10 March 2005. I am grateful to Mrs. Beverley Ireland and Dr. Kirsty Allen for providing information about the history of the Rouse Ball Professorship, and to Mr. David Akers for thought-provoking comments on the lecture.

References

1 Williams, Glanville, Criminal Law: the General Part, 2nd edn. (London 1961)Google Scholar.

2 Williams, Glanville, ed. Smith, A.T.H., Learning the Law, 12th edn. (London 2002)Google Scholar.

3 Harpum, Charles (with Grant, Malcolm and Bridge, Stuart), Megarry and Wade's Law of Real Property, 6th edn. (London 2000)Google Scholar.

4 Wade, H.W.R. and Forsyth, C.F., Administrative Law, 9th edn. (Oxford 2004)Google Scholar.

5 Williams, D.G.T, Not in the Public Interest: the Problem of Security in Democracy (London 1965)Google Scholar.

6 Williams, D.G.T., Keeping the Peace: the Police and Public Order (London 1967)Google Scholar.

7 On W.W. Rouse Ball, see J. and J.A. Venn, Alumni Cantabrigienses, Part II 1750-1900, vol. 1 (Cambridge 1940), p. 136; obituary in The Times, 6 April 1925.

8 Ackroyd, Peter, Albion: the Origins of the English Imagination (London 2002), pp. xixGoogle Scholar, 20-21; Ward, Ian, The English Constitution: Myths and Realities (Oxford 2004)Google Scholar, esp. chs. 1 and 5.

9 Hanks, P.J., Australian Constitutional Law Materials and Commentary, 4th edn. (Sydney 1990), p. 2Google Scholar (reference omitted).

10 Not, as one of my students once wrote, “rubber bands”, although that gives a good sense of the need for elasticity in constitutions (a matter enlarged upon below).

11 Confessiones, iv.

12 London 1990, p. 47.

13 (1611) 12 Co. Rep. 74.

14 (1607) 12 Co. Rep. 63.

15 See e.g. Hill, Christopher, Intellectual Origins of the English Revolution (London 1972)Google Scholar, passim.

16 Ibid., pp. 1-2 (footnotes omitted).

17 Ibid., p. 270.

18 I am grateful to Mr. D.F. Akers for drawing this point to my attention.

19 Thomas Hobbes, Leviathan, Part II, ch. XX.

20 See e.g. Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.C. 116, HL.

21 John Locke, First Treatise of Civil Government, ch. VI, §§ 50-72; Second Treatise of Civil Government, ch. VI, §§ 52-76.

22 Raz, Joseph, Practical Reason and Norms (London 1975)Google Scholar, ch. 1.

23 Hart, H.L.A., The Concept of Law, 2nd edn. (Oxford 1994), pp. 56–57Google Scholar.

24 Bagehot, Walter, The English Constitution, edited and with an introduction by Crossman, R.H.S. (London 1963), p. 61Google Scholar.

25 Lintott, Andrew, The Constitution of the Roman Republic (Oxford 1999), p. 4Google Scholar et seq.

26 Ibid., p. 7.

27 See R. v. Criminal Injuries Compensation Board, ex parte Lain [1967] 2 QB 864, DC.

28 [1995] 2 A.C. 513, HL. Leading counsel for the Union was a former member of the University of Cambridge Faculty of Law, Patrick Elias QC, now Sir Patrick (Mr. Justice) Elias.

29 US v. AT&T, 551 F. 2d 384 (DC Cir 1976); US v. AT&T, 567 F. 2d 121 (DC Cir 1977).

30 Attorney General v. Jonathan Cape Ltd. [1976] QB 752; Re Amendment of the Constitution of Canada (1982) 125 D.L.R. (3d) 1, SC of Canada.

31 [2003] EWHC Admin. 195, Admin. Ct., subsequently affirmed [2003] EWCA Civ. 364, [2003] 2 All E.R. 905, CA.

32 For a concise introduction see Evelyn Ellis in Feldman, David (ed.), English Public Law (Oxford 2004), pp. 156–172Google Scholar, paras. 2.177-2.211.

33 R. v. Secretary of State for Trade and Industry, ex parte Factortame Ltd. [1990] 2 A.C. 85, HL; R. v. Secretary of State for Trade and Industry, ex parte Factortame Ltd. (No. 2) [1991] 1 A.C. 603, CJEC and HL; R. v. Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] 1 A.C. 1, HL.

34 See e.g. Macarthys Ltd. v. Smith [1979] 3 C.M.L.R. 44, CA, at p. 47 per Lord Denning MR.

35 See e.g. MacCormick v. Lord Advocate 1953 S.C. 396, Ct. of Session, at p. 411 per Lord Cooper; Gibson v. Lord Advocate [1975] C.M.L.R. 563, Ct. of Session, esp. per Lord Keith; T.B. Smith, “The Union of 1707 as Fundamental Law” [1957] P.L. 99; J.D.B. Mitchell, “Sovereignty of Parliament—yet again” (1963) 79 L.Q.R. 196; Neil MacCormick, “Does the United Kingdom have a Constitution? Reflections on MacCormick v. Lord Advocate” (1978) 29 N.I.L.Q. 1; Elizabeth Wicks, “A new Constitution for a new State? The 1707 Union of England and Scotland” (2001) 117 L.Q.R. 109. For a different view, see Munro, C.R., Studies in Constitutional Law, 2nd edn. (London 1999), ch. 5Google Scholar.

36 I have developed this idea in an earlier inaugural lecture: “Courts, Constitutions, and Commentators—Interpreting the Invisible” (1993-94) 16 Holdsworth Law Review 37.

37 Scotland Act 1998, s. 30 and Sched. 5, Part II, sections H1 and L2.

38 Scotland Act 1998, s. 30 and Sched. 5, Part I, para. 7, and Part II, section L2.

39 These arrangements are published on the Department of Constitutional Affairs Website, www.dca.gov.uk/constitution/devolution/guidance.htm. See Richard Rawlings, “Concordats of the Constitution” (2000) 116 L.Q.R. 257; Alan Page and Andrea Batey, “Scotland's other Parliament: Westminster Legislation about Devolved Matters in Scotland since Devolution” [2002] P.L. 501.

40 [2002] UKPC D3, [2004] 1 A.C. 462, PC.

41 [2003] UKHL 68, [2004] 2 A.C. 72, HL.

42 See [2003] UKHL 68, [2004] 2 A.C. 72, HL, at paras. [30] (Lord Bingham of Cornhill), [43] (Lord Steyn), [44] (Lord Hoffmann), [127] (Lord Hobhouse of Woodborough), [129] and [139] (Lord Millett), [140] (Lord Scott of Foscote).