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The Resilience of the Political Constitution

Published online by Cambridge University Press:  06 March 2019

K.D. Ewing

Abstract

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The first part of this paper examines the nature and form of the political constitution, and argues that traditional approaches to its scope and purpose are too narrow in focus: The political constitution is about enabling and empowering government, as well as containing and constraining it; it is also predicated upon a body of core and indeterminate political freedoms (albeit frequently submerged and often displaced). The second part of the paper examines three contestable assumptions about what some claim to be a move from a political to a legal constitution. The first relates to the widespread (but flawed) ideological understanding of the political constitution; the second relates to the capacity of the “legal” to resist capture by the “political;” and the third relates to the effectiveness of the legal to protect political freedom. An attempt is made throughout unusually to illustrate argument with evidence, in this instance about the resilient political constitution.

Type
Part I: The Boundaries of the Conception and Practice of Politics within Political Constitutionalism
Information
German Law Journal , Volume 14 , Issue 12: Special Issue—Political Constitutions , 01 December 2013 , pp. 2111 - 2136
Copyright
Copyright © 2013 by German Law Journal GbR

Footnotes

*

Professor of Public Law, King's College, London, [email protected]. I wish to acknowledge the invaluable contribution of Andrew Moretta to this paper.

References

1 For a valuable analysis, see Graham Gee & Grégoire Webber, What is a Political Constitution?, 30 O.J.L.S. 273 (2010).CrossRefGoogle Scholar

2 This much is recognized by Griffith, whose lecture in 1979 forms the starting point of all discussion of the political constitution:Google Scholar

For centuries political philosophers have sought that society in which government is by laws and not by men. It is an unattainable ideal. Written constitutions do not achieve it. Nor do Bills of Rights or any other devices. They merely pass political decisions out of the hands of politicians and into the hands of judges or other persons. To require a supreme court to make certain kinds of political decisions does not make those decisions any less political.

Griffith, J.A.G., The Political Constitution, 42 Mod. L. Rev. 1, 16 (1979).Google Scholar

3 As pointed out by Griffith, much of the ECHR (which forms the basis of the HRA) is the expression of conflict rather than its resolution. Id. at 14.Google Scholar

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5 A timely illustration of the political nature of adjudication—some would argue for multiple reasons—is provided by Animal Defenders International v. United Kingdom, ECHR App. No. 48876/08,. para. 362.Google Scholar

6 Indeed, the modern legal history has been a history of crisis as we lurched from the crisis of the First World War, to the crisis of post war austerity, to the crisis of fascism in the 1930s, to the crisis of the Second World War, to the crisis of the Cold War from the 1940s until the 1980s, to the crisis of Thatcherism in the 1980s, to the financial crisis in the 1990s, to the crisis of the “War on Terror” in the first decade of the twenty first century, and to the crisis of austerity in the second. In other words, there has been a state of perpetual crisis, which now extends to the EU where there is also a cavalier regard for legality in the context of austerity.Google Scholar

7 According to Griffith: “No one nowadays doubts that the Conservative party exists primarily to promote the interests of private capital and the Labour party the interests of organised trade unionism.” Griffith, supra note 2, at 12. This could not be written with such equivocation today, at least in relation to Labour.Google Scholar

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The fundamental problem here is that the European Court of Human Rights has moved a long way from the views of the originators of the conventions back in the 1950s. The original European convention on human rights was a laudable document written by conservatives after the holocaust, when Stalin was in power in Russia and people were being sent to the gulags without trial. Over the period since then, the jurisprudence of the European Court of Human Rights has, in my view, moved further and further away from the original intention and purpose of that convention. There is an urgent need for reform of the court and a return to its roots.

Justice Committee, Uncorrected Transcript of Oral Evidence, 2012–13, H.C. 741-i, para. 81 (U.K.), available at http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/uc741-i/uc74101.htm.

9 See Hirst v. United Kingdom (No. 2), ECHR App. No. 74025/01 (Oct. 6, 2005); see also Othman v. United Kingdom, ECHR App. No. 8139/09, (Jan. 17, 2012). On the latter, see K.D. Ewing, What Is the Point of Human Rights Law?, in Examining Critical Perspectives on Human Rights 37 (Rob Dickinson et al. eds., 2012).Google Scholar

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20 Compare Tomkins, supra note 18, with Danny Nicol, Professor Tomkins’ House of Mavericks, 2006 Pub. L. 467.Google Scholar

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31 An important dimension of responsible government is not only that the government should be responsible to Parliament, but also that Parliament should be responsible to the people.Google Scholar

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33 This idea of the corporate press as a watchdog may need to be revised in the light of the naked use of private power for private ends.Google Scholar

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40 The personal files of leading Communists available at the National Archives are a fascinating read, revealing a great deal about the conduct and methods deployed by the Security Service.Google Scholar

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63 British Bill of Rights Commission Fails to Reach Agreement, BBC News, Dec. 18 2012, http://www.bbc.co.uk/news/uk-politics-20757384.Google Scholar

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[A]n application should be regarded as manifestly ill-founded within the meaning of Article 35(3)(a), inter alia, to the extent that the Court considers that the application raises a complaint that has been duly considered by a domestic court applying the rights guaranteed by the Convention in light of well-established case law of the Court including on the margin of appreciation as appropriate, unless the Court finds that the application raises a serious question affecting the interpretation or application of the Convention; and encourages the Court to have regard to the need to take a strict and consistent approach in declaring such applications inadmissible, clarifying its case law to this effect as necessary.

Brighton Declaration, supra note 64, s 15(d).

67 Moreover, “*t+he margin of appreciation goes hand in hand with supervision under the Convention system. In this respect, the role of the Court is to review whether decisions taken by national authorities are compatible with the Convention, having due regard to the State's margin of appreciation.” Eur. Parl. Ass., Draft Protocol 15 Amending the Convention for the Protection of Human Rights and Fundamental Freedoms—Explanatory Report, Doc. No. 13093, para. 9 (2013).Google Scholar

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69 There is also an explosive issue that will have to wait for another day that straddles considerations of “capture” and “effectiveness,” which is simply the refusal of the government to implement Court decisions. How many prisoners have now been denied their human right to vote and on how many occasions? Not only does this raise the ultimate question of the futility of the HRA, but it also raises even more fundamental questions about the Constitutional Reform Act 2005, s 1. What now for the “existing constitutional principle of the rule of law”?Google Scholar

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