Vol. 10 No. 1 (January 2000) pp. 48-50.
THE LAW, POLITICS AND THE CONSTITUTION: ESSAYS IN HONOUR OF GEOFFREY MARSHALL by David Butler, Vernon Bogdanor, and Robert Summers (Editors). Oxford: Oxford University Press, 1999. 311 pp. Cloth $85.00.
Reviewed by Donald W. Jackson, Department of Political Science, Texas Christian University.
The essays in this book were presented to Geoffrey Marshall, the Provost of Queen's College, Oxford on the occasion of his seventieth birthday, and a worthy presentation it was, for they celebrate both his efforts and those of the essayists to effect a "marriage" of law and political science in the realm of studying the British "constitution." Marshall's key contributions were his book on parliamentary sovereignty (Marshall 1957), his book, CONSTITUTIONAL THEORY (Marshall 1971), and his book on constitutional conventions (Marshall 1986).
As with most edited books, some chapters are more interesting than others, and there is not room to review each of the fourteen essays here. Fortunately, the contributors mostly deal with the "efficient" aspects of that "constitution" and leave the "dignified" portions to history, as, notably, in Robert Blake's chapter on the prerogative powers of the constitutional monarchy. However, it must be said that Blake continues to value the monarch as the "symbol of unity, tradition, continuity and national identify (p. 31), a view, perhaps not shared by Tony Blair and a view whose days may be numbered in the 21st century.
Kenneth Morgan's chapter on "New Labour and the New Premiership" begins with Gordon Brown's (the current Chancellor of the Exchequer) comment that,
"I am the Prime Minister and Tony is the President" (p. 32), surely a prescient view of Blair's personalization of political power in Britain. Morgan notes that Blair personifies, "what American political scientists termed 'spatial leadership,'" and that he has largely bridged the gap between party and national leadership.
Vernon Bogdanor's chapter on the devolution of power under the current Labour government ends with the risky assessment that devolution of power to
Scotland and Wales may, "strengthen the cohesion of the United Kingdom, not weaken it" (p. 77). Only time will tell.
From the perspective of political scientists who study law and courts, the most interesting chapters are Nevil Johnson's on "Law, Convention and Precedent in the British Constitution," John Griffith's on the early years of "Public Law" in the United Kingdom, and Gavin Drewry's on "Bridging the Chasm: Public Law and Political Science." Johnson concludes that the evolution of the constitution in Britain has not chiefly been by way of judicial interpretation, but rather by the growth of conventional understandings and political precedents. Thus the British constitution became a "unique mixture of unentrenched law, persuasive precedent, and
prescription hallowed by usage and tradition by which it has been defined and continued to retain its
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effectiveness" (p. 140). However, this "common law" constitutional system may be coming to an end, to be replaced by entrenched provisions and by binding judgments of courts. To sustain that view he points to the enactment of legislation (the Human Rights Act 1998) incorporating the European Convention on Human Rights into United Kingdom law. "[I]t is possible," he argues, "that the outcome of [such] human rights jurisdiction might be the gradual accumulation of precedents indicating the range and extent of the limits placed on Parliament's legislative authority in the sphere of particular rights-say freedom of expression or freedom of association" (p. 145). In other words, he argues, the Convention proposes the enforcement of rights by judicial review rather than by through the exercise of political discretion. This is an outcome that Johnson questions (a good British tradition at that): "It is not at all self-evident that the protection of human rights in their broad and general application to the vast majority of people has been less well served by the survival of such a political discretion alongside the traditional practices of the rule of law in Britain than will be the case when the determination of superordinate rights has been handed over entirely to a panel of judges." Again, only time will tell.
John Griffith's research into the rather narrow slice of reality represented by the backgrounds and experiences of those who have sat as British judges, leads him to the following interesting paragraph:
I am not sure why it is that today, in the late 1990s. So many people remain willing, in matters of political judgement or ethical values to follow Denning's demand that we put our trust in judges. Their record in the 1980s was abysmal as they persisted in prolonging the long imprisonment of innocent men and women and failed to protect freedom of expression. No doubt it is true that the judicial function is much more than mechanistic. Indeed, if all a judge had to do was to apply the law to the facts, he would be more profitably employed as a police constable. He must use his judgement and consider where lies justice in the case before him. How he exercises that wide discretionary power determines his reputation. But he will not enhance it by taking upon himself the role of political philosopher and telling us how we should behave as democrats. He may declare that the government of the day has, through its agencies, acted illegally. But otherwise, as Dr Johnson might have said, it is not for him to bandy civilities with his sovereign (pp. 190-91).
Griffith notes that in 1976 Marshall himself favored incorporation of the European Convention on Human Rights, but without entrenchment and without the power of judicial review. Should parliamentary sovereignty support the power of Parliament to pass any law or any subject whatsoever? Does no one have the proper authority to set aside an act of Parliament? Some place for entrenched legal rights and some role for judicial review has been secured both by the European Communities Act of 1972 and by the Human Rights Act of 1998, but Griffith is no doubt correct in concluding that no one know what role judges may come to play even with a limited power of review. (The Human Rights Act of 1998 empowers judges to declare the incompatibility of an Page 50 begins here action of the government with the European Convention, but it leaves to Parliament the duty of taking remedial action).
Finally, Gavin Drewry traces the fragile efforts in the 1980s to create a "Law and Politics" specialist group in the Political Studies Association of the United Kingdom, an effort that was supported, he recalls, by the loyal attendance and participation of Geoffrey Marshall. But as Drewry notes, "Until quite recently it would have been possible for a politics student in a United Kingdom university to study the politics and government of his or her home country with barely a passing glance at the role of law and the courts, or at the writings and source materials associate therewith" (p. 209). That, of course, is still the case with many textbooks on United Kingdom
politics. Imagine, as Drewry does, the predicament of an American politics text with no reference to the Supreme Court or to constitutional law.
These examples should suffice to support the conclusion that this is a good and useful book, both for those who study politics in the United Kingdom, and for those of us who can usefully gain a better sense of the relationship between law and politics by seeing things through a quite different perspective.
Geoffrey Marshall. 1957. PARLIAMENTARY SOVEREIGNTY AND THE COMMONWEALTH.
Oxford: Oxford University Press.
_____ 1971. CONSTITUTIONAL THEORY. Oxford: Oxford University Press.
_____. 1986. CONSTITUTIONAL CONVENTIONS: THE RULES AND FORMS OF POLITICAL
ACCOUNTABILITY. Rev. ed. Oxford: Oxford University Press.
Copyright 2000 by the author.