King's Law Journal

ISSN: 0961-5768 (Print) 1757-8442 (Online) Journal homepage: http://www.tandfonline.com/loi/rklj20

The British Constitution by Anthony King

Richard Johnson

To cite this article: Richard Johnson (2008) The British Constitution by Anthony King, King's Law
Journal, 19:3, 637-642, DOI: 10.1080/09615768.2008.11427712

To link to this article: https://doi.org/10.1080/09615768.2008.11427712

Published online: 29 Apr 2015.

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 (2008) 19 KLJ

Reviews

The British Constitution by Anthony King, Oxford University Press, 2007, 365 pp,
£25 Pbk, ISBN 978-0-19-923232-1.
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In 1991 the Institute for Public Policy Research published a draft Constitution for the
UK. The document, which ran to 136 pages (five times longer than the Constitution of
the United States of America), claimed to detail in sufficient measure the fundamental
workings of the constitutional structure of the United Kingdom. The 365 pages of
Anthony King’s new book The British Constitution do much to show that the richness
and variety within the UK’s uncodified constitution cannot simply be straitjacketed into
a codified reformulation without losing both its dignity and efficiency, to take
terminology from one of King’s self-proclaimed stylistic predecessors, Walter Bagehot.
The British Constitution makes some incisive contributions to topical debates whilst
retaining readability with an engaging approach to constitutional issues.
King, explicitly, does not attempt to write a textbook. His is an enjoyable purview,
which carefully flows through many issues; indeed a credit to his style is that relevant and
interesting links are made from chapter to chapter, flawlessly integrating, for example
discussion about devolution with Civil Service careerism in Chapters 8–9. Perhaps the
most germane analytical approach one can take of a monograph dedicated to the UK’s
uncodified constitution is not of the individual points made in the book, but rather of
what the author has, and has not, deemed important enough to include. Constitutional
law is an amorphous field encompassing interdisciplinary study—of history, sociology,
politics, philosophy and law—so it is unsurprising that the proper focus of study for
constitutional lawyers and political scientists is contentious. But the choice of topics is
informative in understanding the writer’s conception of the subject. Two threads run
centrally through King’s particular topic selections: (1) the extent to which constitutional
change is often the unintended result of only tangentially related policy, and (2) the crucial
nature of timing in effecting constitutional change. The former is explicit and the latter
implicit in his writing.
The book first makes some clarifications. King’s clear delineation between ‘big-C
Constitutions’ and ‘little-c constitutions’ reflects the indubitable significance of
constitutional theory to modern-day politics and political theory. The analogy he presents

637
 638 King’s Law Journal

throughout the book, of a constitution akin to a building that has been constructed and
reconstructed, extended and reduced, in a variety—nay a hotchpotch—of architectural
styles, sits well. Tidiness, after all, could never be a feature of a constitutional structure that
has remained largely intact for over 300 years, particularly one so intertwined with
political processes; nor might such tidiness be desirable. Events—such as the repeated re-
drawing of local government administrative boundaries having the effect of destabilising
the specifically governmental role of local councils—that produce unexpected
constitutional change over a significant period of time, contribute to the uncertainty that
inheres in objective attempts at charting the contemporary constitutional landscape.
The importance of timing in constitutional change is borne out in a number of the
topics selected by King: chapters on devolutionary arrangements, referendums (with an
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appealing aside into the classical derivation of the plural of referendum), judicial activism,
House of Lords reform and future constitutional change are all underpinned by the
happenstance of amenable political climates. The lack of a formal mechanism for
considering and implementing constitutional change in the UK has the result that
political circumstances materially impact not just on the nature of constitutional change
embarked upon by a government, but also on the question of whether that change will
take place at all. ‘John Bull’s Other Lands’ is perhaps King’s most pervasive chapter on
the matter. Its ambit, the post-1997 devolutionary arrangements, is critically assessed in
sharp relief. King conjectures a future political situation less inclined to ignoring the deep
problems of the Barnett Formula and West Lothian question and the conflict that could
easily ensue from administrations keen to antagonise in Westminster, Edinburgh and
Cardiff. His appreciation for the variability of relevant factors encourages the reader to
reconsider the relative harmony with which devolutionary arrangements have been
implemented. Edinburgh, King playfully contends, could ‘become the Bratislava of the
north’1 at a future point in time.
The political climate ostensibly delayed Britain’s admission to the then European
Economic Community, and King illustrates that—amenable or not—the political
circumstances of the time will determine the perception of the relevant constitutional
change. In Chapter 5, ‘Britain’s Near Abroad’, King attempts to chart the history of formal
European integration from the first attempts to join following the Treaty of Rome,
through the development of the acquis communautaire in seminal cases such as
Simmenthal2 in the European Court of Justice and the Factortame3 litigation in the UK
courts, to the guiding EU principles of competition and deregulation that have an effect
in every sphere of contemporary British life. The themes focused on in this review, of

1 A King, The British Constitution (Oxford University Press, 2007) 214.

2 Simmenthal SpA v Amministrazione delle Finanze [1985] 1 CMLR 250.
3 R v Secretary of State for Transport ex parte Factortame Ltd [1990] 2 AC 85; (No 2) [1991] 1 AC 603; (No 3)
C-221/89 [1992] QB 680; (No 4) C-48/93 [1996] QB 404; (No 5) [2000] 1 AC 524.
 Reviews 639

timing and intention, are lucidly brought out in King’s analysis of the objectives of
membership as seen by the UK government in the 1960s and 1970s. The decline of the UK
as a world power and internal economic struggles forced politicians at the time to
fundamentally reconsider their policy on strategic co-operation with other countries.
The timing was therefore central to the intention: membership of the EU would bring
economic and political benefits that the UK could ill-afford to miss out on in a rapidly
changing world. The specifically constitutional change was not positively considered. The
flexibility of the uncodified constitutional settlement meant that such drastic
constitutional change could be enacted very simply and non-contentiously.
The notion of interpenetration—that is, the overlap and reciprocal influence of
different fields such as law, politics, economics and culture—discussed in the chapter, is
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interesting for its theoretical implications. King notes the concept of interpenetration
particularly in the sphere of policy, but not specifically in the constitutional realm.
Notions of legal pluralism or dualism are, for example, overlooked. The fundamental
technical changes to the constitutional settlement of the UK were, as noted above, largely
unintentional, conveniently allowing the avoidance of serious political unrest that would
undoubtedly have reared its head had the UK a codified Constitution to which major
amendments would have been needed. The incremental increases in deference to the legal
and political institutions of the EU have been necessary to further the worthwhile (largely
political and economic) objectives of member state co-operation; nonetheless, the
consequences for classical doctrines of public law and constitutional theory have been
assessed almost exclusively in retrospect, given the uncertainty inherent in the judicial
approaches at both the domestic and the EU level. The topical Lisbon Treaty has been a
notable exception, but the reaction to open and explicit constitutional reform, which
seeks to tackle issues in a structured and planned way, has been so volatile that in future
the cost of public engagement in constitutional reform might be deemed too expensive.
The impact of these issues upon ordinary citizens is perhaps not as great as one might
hope and accordingly the public interest is generally low. That said, there are instances
recorded by King where complications arising from EU membership have had a more
significant, if still largely unrealised, impact on the British people.
Psephology is one of King’s many areas of expertise, so it is natural for him to dedicate
a chapter to the topic. Voting reform has been one of the areas in which the constitutional
reform agenda of New Labour has decisively failed: ‘democratic renewal’ has consistently
produced further democratic and civil disengagement, reflected in the negligible changes
in voter turnout despite the proliferation of alternative voting arrangements. King notes
a lengthy list, including touchtone-telephone voting, mobile polling booths, extended
voting hours, multiple days of voting, exclusively postal voting, and others. Moreover the
sheer plurality of fora in existence—from regional assemblies, through mayoral selection,
to European Parliament elections—that base their mandate upon the results of direct
 640 King’s Law Journal

democracy seem to have had a disenfranchising effect. King makes clear that the fluidity
and flexibility often seen as the major strength in the UK’s uncodified constitution can
also be its worst enemy, and the implications of EU membership can be seen here to have
wider consequences in the broader political scheme than would be observed if taken in
isolation.
First-past-the-post voting, not used in the design of any of the devolved institutions’
selection procedures, still reigns supreme for Westminster. Here King notes that a serious
problem with constitutional reform—the lack of independence from politicians and
political parties—means that changing the very electoral system which put Members of
Parliament into the House of Commons is unlikely to happen for the same reason as
‘turkeys being notoriously reluctant to vote for an early Christmas’.4 The further
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empowerment of the Electoral Commission with full legislative powers would be the only
workable solution for taking electoral law genuinely out of MPs’ hands, but this could
raise complicated and distracting issues surrounding parliamentary sovereignty.
The chapter that perhaps best exemplifies the two threads of King’s book, that
constitutional change typically happens for non-constitutional reasons, and that timing
is determinative of change, is Chapter 11, ‘References to the People’. Referendums are not
a standard part of a broad-brush review of the UK’s constitutional structure. In one of the
leading constitutional and administrative law textbooks, for example, less than one of
783 pages5 is dedicated to the matter. This makes its inclusion in The British Constitution
especially interesting. King deftly shows how the single national referendum in British
constitutional history—in 1975 on the Common Market—was non-constitutional (as
distinguished from unconstitutional) in two ways. First, the referendum was not proposed
on the basis of the constitutional change that would be entailed by membership of the
European Community, and second, the use of the referendum as a means of procuring
general acceptance was not considered at the time to be of constitutional relevance.
Timing for the 1975 national referendum was critical. Supporting a referendum, King
notes, is done not on the basis of ‘overarching constitutional principle’,6 but rather on the
judgment of outcomes that might be expected from the normal political process versus
the popular vote. In times of confidence in the popular vote where the normal political
process might decide against one’s own position, a referendum is to be advocated. The
reverse equally applies. And so we see the role of cynical timing in the interaction between
political process and constitutional change for non-constitutional reasons. The recent
calls for a national referendum on the Lisbon Treaty can be seen in a similar light.

4 Ibid, 275.
5 AW Bradley and KD Ewing, Constitutional and Administrative Law (13th edn Pearson, Harlow 2003)
75–76.
6 King (n 1) 279.
 Reviews 641

On the issue of parliamentary sovereignty, as for many other doctrines of

constitutional theory, King avoids discussion. He says that the traditional model of
parliamentary sovereignty is now a ‘legal fiction’7 but makes no attempt to distinguish,
unlike in the tradition of Sir Ivor Jennings, between limitations on sovereignty in
substance, and limitations merely applying to the manner and form of Parliament. Such
a lack of engagement with fundamental principles of constitutional theory hampers the
otherwise sound descriptive and discursive accounts, although it must be noted that
constitutional theory is a method specifically not advanced by King in his view of the
book’s objectives. This raises the question: can an account of the ‘British Constitution’
be complete without reference to the connected theoretical debates? The answer depends
on not only the objective for the writer, but also his intended audience. For King, this is
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not such a worry, as the factual presentation remains central to his running threads. He
seeks not to rationalise the theoretical consistency of constitutional phenomena but rather
to account for them descriptively as socio-political creations.
Chapter after chapter, King reminds the reader that the vast majority of constitutional
change has been achieved if not unintentionally, at least in some sense as a ‘by-product
of decisions taken by central governments for other reasons’.8 This, however, neglects a
prominent feature of particularly the early Blair administration: that of a reform agenda
meticulously planned in advance and as specifically constitutional. Whilst King touches
upon that agenda in the final chapter, he dismisses its importance when compared to the
40 years before New Labour. King does raise an interesting challenge to the post-1997
reforms, namely that the Blair administration may have effected—in number—more
constitutional changes than in the previous 40 years, yet that their cumulative significance
is actually to be regarded as inferior. This is to be doubted: Robert Blackburn and
Raymond Plant, in Constitutional Reform, argue that ‘Labour’s agenda … is wider than
that of any political party taking office this century. Indeed, taken as a whole, the
parameters and range of subjects affected cover virtually the entire terrain of our
constitutional structure’.9 Labour’s reforms have certainly been bold and ambitious, if
not actually stimulating public interest to any significant degree: on one day alone in June
2003, King mentions, the role of Lord Chancellor was radically changed, a new
Department for Constitutional Affairs established, a new Supreme Court outlined to
succeed the judicial functions of the House of Lords, and a new Judicial Appointments
Commission created in connexion. The very fact that such sweeping constitutional change
can be effected so easily—by announcement alone—is particularly striking.
Another marked omission is the role of the Monarchy in the UK’s contemporary
constitutional settlement. A glance towards the end of Chapter 13, ‘Great British Icons’,
7 Ibid, 99.
8 Ibid, 350.
9 R Blackburn and R Plant (ed), Constitutional Reform: The Labour Government’s Constitutional Reform
Agenda (Longman, London 1999) 1.
 642 King’s Law Journal

reveals only a cursory nod to the unimportance of the Monarchy and the Royal
Prerogative. This particular selection is insightful: King clearly wants to avoid this well-
trodden path in constitutional literature; nonetheless, a book that does so well in making
links between disparate parts of the political melée misses something in dismissing
perhaps the most interesting constitutional relationship—that of the Queen to the Prime
Minister. Fascinatingly contentious debates surrounding the real role of the Cabinet, the
appointment or recommendation of Honours and Titles and the prospects for mediation
in the case of a Hung Parliament are all overlooked. As such, King has chosen, as his target
audience, the student of politics rather than the student of strict constitutional law and
theory.
Despite omitting such areas that could have provided stimulating discussion-fodder,
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King has produced a very readable collection that, like any piece of constitutional
literature, is a snapshot of the current outlook, likely to date quickly. However,
constitutional history marks out several major contributions that—notwithstanding the
inevitable temporality—provide a delicate balance of history and foresight and so endure
as a reference point. The ‘wise-chat’10 of Bagehot’s The English Constitution is one example
and the detailed but accessible commentary provided at almost every turn by King in The
British Constitution similarly engages readers on a variety of levels. A target audience of
individuals coming to the book without prior specialist knowledge will certainly be able
to interact with the text for the foreseeable future. Constitutional lawyers, however, might
be left a little frustrated at the depths of subtlety marked out by King’s inviting meander
that are not developed in any great detail. That said, the book certainly achieves what is
a highly commendable aim, to try to get readers to challenge the selection of material,
thereby engaging with the flexibility of the UK’s uncodified constitution and encouraging
enlightened criticism of those who attempt to make any definitive claims about what is,
and what is not, properly ‘constitutional’ in nature.

Richard Johnson*
BCL candidate, Corpus Christi College, Oxford

10 Review of W Bagehot (M Taylor (ed)), The English Constitution (Oxford University Press, 2001), The
Spectator 24 March 1866.
*
Email: richard.johnson@ccc.oxon.org. With thanks to Dr Elizabeth Fisher and Sanja Bogojevic for
comments on an earlier draft.