Vol. 14 No. 3 (March 2004)

PUBLIC LAW IN A MULTI-LAYERED CONSTITUTION, edited by Nicholas Bamforth and Peter Leyland.  Oxford U.K.: Hart Publishing, 2003. 448 pp. Paper 22.50.  ISBN: 1-84113-283-7.  Hardcover 50.00.  ISBN: 1-84113-282-9.

Reviewed by Carla Thorson, Department of Political Science, UCLA.  E-mail: cthorson@ucla.edu

Has the constitution of the United Kingdom become multi-layered, and if so, what are the consequences for public law?  These are the thematic questions around which this collection of essays is organized and edited by Nicholas Bamforth (Queen's College, Oxford) and Peter Leyland (London Metropolitan University).  A multi-authored compendium based on a seminar series held at Queen's College, Oxford in 2002, this volume sets out to define the current constitutional terrain in order to understand the relative effects of recent constitutional changes on the exercise of power by public bodies and the corresponding mechanisms of control in the United Kingdom.

In the past thirty years or so, since 1997 in particular, Bamforth and Leyland argue that there has been a fundamental refashioning of the constitutional architecture in the United Kingdom.  First, legislative and political power has disbursed from the Westminster parliament-both, evolving to the European Union governing bodies, and devolving to the assemblies of Scotland, Wales, and Northern Ireland.  Second, they argue that the power of the courts to check the executive has increased, relative to parliament, with the development of a comprehensive regime of judicial review, particularly since 1977 but even more so since 1998 with the passage of the Human Rights Act.  This vertical diffusion of power requires us to rethink the shape of the state, while the horizontal redistribution of power prompts a reconsideration of the mechanisms of constitutional accountability, according to the theory of multi-layered constitutional design put forth by the authors.  In and of itself, this conclusion is compelling and raises significant issues for study and further discussion.

While the overall consequence has been to bring about profound constitutional change, Bamforth and Leyland admit that the various developments that they outline have produced "something of a patchwork quilt effect"(p.2).  The contributions to this volume produce a similar effect, at least for this reader.  Fourteen different authors from England, Scotland, Ireland, Australia and New Zealand address the implications of a multi-layered constitution running the gamut of public law, looking at a variety of different features of the contemporary constitution from a variety of different perspectives.  The result is as multi-layered and multi-faceted as the subject they purport to address, which makes this book difficult if not impossible to evaluate or even characterize adequately.

The chapters can be loosely organized around the following issues-first, the similarities, inconsistencies and overlaps among the layers; second, the extent to which public bodies should be regulated in each layer by legal rather than political means; third, the relationship between the reshaped state and the different layers of the constitution.  The authors' contributions do not limit themselves to these individual issues.  There is overlap among the several issues, and additional facets are considered within each chapter.

For readers interested in the broad nature of UK constitutionalism and the implications of recent innovations, such as joining the European Union, adopting the European Human Rights Convention, and the devolution legislation enacted by the new Labour government after 1997, the early chapters will prove most useful.  For instance, Carol Harlow's essay on "European Governance and Accountability," "What is Parliament For?" by Adam Tomkins, Richard Cornes' piece on "Devolution and England: What is on Offer?" and Brigid Hadfield's "Does the Devolved Northern Ireland Need an Independent Judicial Arbiter?"-all evaluate the implications of the new vertical layered relationship between the EU, Westminster, and the regional assemblies.

For those concerned primarily with the role of the courts and the implications of EU law for human rights and civil liberties protections in the United Kingdom, several authors have made significant contributions to this debate on the horizontal redistribution of power.  For example, Murray Hunt's, "Sovereignty's Blight: Why Contemporary Public Law Needs the Concept of 'Due Deference'" suggests that the recent changes have not firmly established judicial supremacy.  Hunt argues that judges should continue to exercise caution and defer to political decision-makers when they can clearly demonstrate that such deference is in order.  Another contributor, Conor Gearty, in his chapter on "Civil Liberties and Human Rights," argues that the Human Rights Act does establish a greater commitment by Parliament, the executive, and the courts to the protection of human rights, but he nonetheless concludes that civil liberties can still be qualified by representative bodies in the name of democratic necessity.

These are only a few of the specific issues considered.  The consequences of multi-layered constitutionalism for lower-level practical issues of public law covered in the volume are as wide-ranging as the participants.  From "Reinventing Administrative Law," by Michael Taggart, and Peter Leyland's "UK Utility Regulation in an Age of Governance," to "Freedom of Information: A New Constitutional Landscape?" by Stephanie Palmer or "Accountability and the Public/Private Distinction," by Peter Cane, and myriad subjects in between, scholars who hope to disentangle the evolution of modern UK constitutionalism will be sure to find something of interest among the contributions to this volume.

Copyright 2004 by the author, Carla Thorson.