Public Law

Vol. 14 No. 6 (June 2004), pp.469-471

PUBLIC LAW, by Adam Tomkins. Oxford: Oxford University Press, 2003. 256pp. Paper $24.95 / £16.99. ISBN: 9-780199-260775.

Reviewed by Mary L. Volcansek, Department of Political Science, TCU. Email: m.volcansek@tcu.edu.

Adam Tomkins has written a highly readable book, designed for English law students, but of considerable interest to those who study constitutions and constitutional law anywhere, or even those who wish to understand the monumental institutional changes taking place in Britain. Tomkins’ central thesis is that constitutional law defines the “institutions that exercise political power,” and he explores how those institutions are held accountable. His distinctions between political and legal constitutions and political and legal accountability have a particular resonance, whether one is speaking of political institutions in England, the United States, the European Union, Spain or, say, Ecuador. To explicate these themes, he uses an historical approach, arguing that public law “did not arrive, ready-made, from nowhere” (p.35). He focuses specifically on England and acknowledges that recent devolution of power to Wales and Scotland and the particular governing situation in Northern Ireland preclude him from considering the larger units of Great Britain or the United Kingdom.

A political constitution is defined as one where those wielding power are held accountable through political means by other institutions. To be effective, there must be a strong and vital political discussion and the potential for significant independence. A legal constitution counts, on the other hand, on enforcing accountability through legal processes and, likewise, requires significant independence and an understanding that law serves as an instrument of accountability for governmental institutions. Political or legal accountability is appropriate in different situations, a point that applies equally in the U.S., though the rush to litigate any dispute seems as American as apple pie.

Tomkins weaves his argument chronologically to demonstrate that the English constitution evolved over centuries, but focuses primarily on the major shifts that have occurred in the twentieth and early years of the twenty-first centuries. In doing so, he takes on much conventional wisdom about the English constitutional structure, including a great deal that is perpetuated among those who write about Western Europe as well as English public law. I found three of his arguments most persuasive.

First, constitutionalists often cite England as an example, perhaps the only contemporary one, of a nation without a written constitution. The concept of a written constitution was, as Tomkins points out, unknown until the eighteenth century, when the French and U.S. documents were written. But English constitutional development was a creature of an earlier era and the product of political turmoil in the [*470] seventeenth century, when most of the more pressing questions about divisions of, and relationships among, powers in England were resolved. Tomkins argues that there is no significant difference in operation between written and unwritten constitutions; the former is not inflexible, while the latter is flexible. Rather, the difference is one of form instead of content. What clearly distinguishes the English constitution from more recent ones lies not in its multiple sources, but rather in the fact that it is more a political than a legal constitution. Constitutional conventions, treated as binding norms, are enforced via political processes, not legal avenues. Indeed, some “legal constitutional” norms are at variance with some constitutional conventions. The example he uses is that legally the monarch can appoint anyone she pleases to be prime minister, but by constitutional convention she appoints only the leader of the political party that holds a majority in the House of Commons.

Tomkins’ treatment of separation of powers also falls outside the more common notions of the English system, which is often described as an example of fused powers, because of the overlapping of personnel within Parliament, the executive and the judiciary. Again, relying on an historical argument, he demonstrates that there is separation of powers, but that it fails to resemble the more common variety conceived in the eighteenth century. The English separation of powers is one of Parliament versus executive, an arrangement that dates from the close of the seventeenth century. It is intentionally “confrontational, bi-partisan, bi-polar separation” between the crown and parliament. The judiciary is not part of the equation, in part because of the expectation that confrontation secures accountability through political, not legal, means.

The third area of discussion, where Tomkins offers an unconventional perspective, is that of judicial review. Notably, English judicial review is not the equivalent of that which is understood in the U.S. Rather, the authority that American courts wield would be more typically described in Europe as “constitutional review.” English judicial review is not an appeal, but it is a review by courts of the legality (not constitutionality) of a decision by an administrative authority; the review does not extend to the merits of the decision. Judicial review, particularly when viewed against the sweep of English legal history, is quite new, barely forty years old. Since the mid-1960s a coherent law of judicial review has developed under which an executive action may be negated if it is illegal, irrational or involves a procedural impropriety. During the 1990s, in advance of the European Convention on Human Rights’ adoption into English law through the Human Rights Act of 1998, English courts also began fashioning a rights-based means of challenging executive decisions. Though English jurisprudence on the Human Rights Act remains in its infancy, it has, as Tomkins explains, the potential to have far-reaching effects on executive actions, except as tempered by limitations on access through the doctrine of standing.

England, and indeed the whole of Great Britain, is engaged in a serious institutional redefinition, and anyone [*471] with an interest in British politics, law or constitutionalism more generally, would be well-advised to read Tomkins’ book. Even students of strictly American politics or law would be well-served by this book, because of the contrasts that it presents to our familiar ways of demarcating governmental powers and adjudicating infringements in the courts. This is, perhaps, best illustrated in the closing pages where Tomkins sketches the limitations of legal accountability. The issues and questions he raises are salient, in my view, on both sides of the Atlantic. The English courts’ use of their somewhat limited judicial review authority has three, to use Tomkins’ term, “fault-lines:” (1) a shortage of remedies to offer the aggrieved subject, (2) an inability to enforce remedies in line with the spirit of the judicial decision, and (3) the undemocratic character of an unaccountable judiciary in a democracy. Tomkins’ answer is the same that most constitutional law scholars in North American would proffer—that it is the role of courts to protect minority rights in the face of the majority.

Tomkins’ final answer is, I fear, unsatisfying. I think, instead, that we who teach constitutional law in the U.S., Canada, and wherever constitutional courts exist, should continually question the role of the judiciary as enforcer of legal accountability in democracies and their potency in that role. The difficulty of enforcing judicial decisions plagues a number of constitutional courts, including the U.S. Supreme Court, as well as English judges. Surely though, the basis of the judicial role in democratic systems extends beyond the protection of minority rights. To what extent have courts assumed, or had thrust upon them, the task of enforcing accountability that might better be handled through political accountability, through lively, effective and independent political debate and decision?

Even though I am not wholly satisfied with Tomkins’ defense of courts in their use of the very limited scope of English judicial review, I found the book provocative. I have been challenged by it to think about legal versus political accountability, variations on themes of separation of powers, received notions of written and unwritten constitutions and, indeed, the very purpose of a constitution. These are questions that those of us in the U.S. too often fail to ask. I know, moreover, that I will never teach constitutionalism, Western European politics, or American politics, quite the same way after having read this book. I recommend it highly. Comparison of our own political system with others often provides the best vehicle for illuminating some features of that which is most familiar.

*****************************************************