Vol. 19 No. 9 · 8 May 1997
pages 8-11 | 6358 words
The Common Law and the Constitution
Stephen Sedley
It is conventional wisdom, at least among lawyers, that the Constitution of the United Kingdom is in its essentials the creation of the common law – an accretion of legal principles derived from judicial decisions which determine for the most part how the country is to be run from day to day. Apart from the historic texts – Magna Carta, the Bill of Rights – statutes were until this century regarded, by lawyers if not by Parliamentarians, as dangerous reefs in the great ocean of the common law, to be observed chiefly in order to circumnavigate them. During this century the body of statute law has broken the surface at many points, forming sometimes small islands – such as the unnecessary but minor incursion of the legislature into the judge-made law of judicial review – and sometimes great land-masses like the modern law of real property, supplanting the common law and equity, or whole continents of social and economic provision for which the common law itself has no remit.
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Letters
Vol. 19 No. 10 · 22 May 1997
From John Griffith
The working of the Constitution of the United Kingdom depends on the relationship between government, Parliament and the judiciary. Since the end of the Eighties, when respect for judges had sunk to a new low, efforts have been made to improve their public image and to enhance their status. Mr Justice Sedley’s article on the common law and the Constitution (LRB, 8 May) is part of this process. Sedley claims that only in Parliament and the courts reside the sovereignties of the state. To arrive at this curious conclusion, Parliament is set up as the source of ‘executive policy and practice’, its function being to ensure that governments ‘conform to its wishes’. Parliament, we are told, does not itself govern directly because it ‘lacks the resources’ to do so (partly because government is ‘complex’ and partly because Parliament uses its powers inefficiently and ‘underfunds’ its personnel). Of all things, that old bogey, delegated legislation, is paraded as evidence of evil doings. I had thought such elementary misunderstandings of the Constitution had been finally laid to rest 65 years ago by the Committee on Ministers’ Powers. Parliament has never governed and has never claimed the right to govern (except by Cromwell for a short period before he gave up the attempt as unworkable). Government is the function of the Queen’s ministers, who are brought into office as the result of a general election. They make laws which are approved by Parliament, with or without amendment, and then they put the laws into effect.
Next we are told: ‘Ministerial government enjoys a high degree of autonomy, enabling it in large part to control the Parliament to which it is theoretically subordinate.’ Not so. Her Majesty’s Government is not and never has been subordinate, in theory or practice, to Parliament, even though an adverse vote in the Commons may bring that government to an end. Over the years, the House of Commons has been able to insist, in greater or less degree, that ministers should be accountable. Neither of these two great institutions is ‘subordinate’ to the other. Each performs its own functions and interacts with the other.
So we come to the central thesis: ‘It is crucial to stress the constitutional fact that the executive does not possess anything which can accurately be called sovereignty.’ This is sophistry. To assert, as Sedley does (note the weasel words ‘fact’ and ‘accurately’), that the Queen’s Government derives its legitimacy not from its election by the people but from the prerogative and the legislature, and therefore does not partake of sovereignty, is fantasy. So, finally, in an attempt to deny the existence of the political Constitution the better to insist that Parliament and the judges are sole sovereigns, we are told that ‘there is no constitutional requirement that ministers must be accountable to the representatives of the electorate.’ It is a necessary part of Sedley’s argument that conventions are ‘fragile’ sources of constitutional law.
These various misinterpretations and misunderstandings of the Constitution serve to construct a legalistic artifice in which ‘the common law has tried conscientiously to maintain the rule of law’ and to perform ‘its proper, non-confrontational role’. No one doubts the importance of the common law courts in containing government power. But it is a massive and dangerous error to believe they can be a substitute for politics.
John Griffith
Marlow, Bucks
