Home / The English constitution / The legal constitution
Key concept
This is the other half of the distinction at the centre of the Starkey Thesis. The first half is the political constitution. The whole argument is the claim that Britain swapped one for the other.
The legal constitution is the idea that certain fundamental values, usually rights, are placed in law above ordinary politics and enforced by courts, which hold the final say over what those values require. Where the political constitution trusts elections to settle disputes, the legal constitution treats some questions as matters of principle that judges, not majorities, should decide.
As a theory this is called legal constitutionalism, and it has a distinguished pedigree. Its defining features are the primacy of rights and the granting to courts of the final word on what the constitution means. Thinkers such as Ronald Dworkin argued that rights function as trumps that individuals hold against the majority. Lord Bingham made the case that the rule of law requires courts able to hold government to account. T.R.S. Allan grounded a rights-based constitution in the common law itself. On this account a constitution is not just whatever politics produces. It is a framework of principle that politics must respect.
Britain moved a long way toward the legal model in a single decade. The load-bearing changes came from New Labour between 1997 and 2010. The Human Rights Act 1998 brought the European Convention on Human Rights into domestic law and told courts to read all legislation compatibly with it. The Constitutional Reform Act 2005 created a separate Supreme Court and remodelled the office of Lord Chancellor. Judicial review expanded steadily, reaching further into decisions once thought purely political. The Equality Act 2010 added the Public Sector Equality Duty. Devolution and central bank independence parcelled out powers that Parliament cannot easily reclaim.
One technical point matters, because Starkey's critics lean on it. The Human Rights Act is a "weak" form of review. Courts cannot strike down an Act of Parliament. They must either interpret it to fit the Convention or issue a declaration of incompatibility and leave the last move to Parliament. In strict legal theory, sovereignty survived. The dispute is about what happened in practice. The forms of parliamentary sovereignty remained while much of its substance was redistributed to courts and to arm's-length bodies. The measured, evidenced version of all this is on the evidence.
This site argues Starkey's thesis, but the legal constitution has a strong defence and it deserves a straight hearing. An entrenched, rights-based settlement is meant to ensure stable and accountable government by holding legislatures and ministers to fixed rules. Above all it is meant to stop them sacrificing individual rights to administrative convenience, popular prejudice or short-term advantage. It protects unpopular minorities who can never win a vote. It gives an ordinary person a way to defeat the state in court, which the political constitution does not. When judges overturn a minister, defenders say, that is not the system failing. That is the rule of law working as designed. Those replies are set out at length on the case against.
Source: Encyclopaedia Britannica, on political and legal constitutionalism compared
For Starkey the legal constitution is the heart of what went wrong. His historical claim is that the Blair governments carried out a constitutional revolution, largely unannounced, that took contested decisions away from people you can vote out and handed them to judges, tribunals and unelected bodies you cannot reach. Rights language, on this reading, did not add protections so much as move power. Questions that used to be settled by argument and election became matters of law, and so became very hard to reverse.
He does not treat this as a technicality. He calls the author of the change, Tony Blair, < cite index="27-1">"a calculated vandal", and argues the reforms eroded parliamentary democracy to the point where Britain is no longer, in the full sense, a democracy at all. The consequences he traces from it, the inability to build, to control the border, to run public services within a budget, are set out on the evidence and the human cost, and the remedy, a Great Repeal and restoration, is on the plan.
The clash between the legal and the political constitution is one of the deepest in modern constitutional thought, and honest people sit on both sides. Legal constitutionalists like Allan and Dworkin hold that some principles must be beyond the reach of a passing majority. Political constitutionalists like Griffith, Bellamy and Waldron reply that people reasonably disagree about what those principles require, so the disagreement should be settled by votes rather than by judges. Each side accuses the other of pretending that the line between law and politics is clearer than it is. You do not have to accept Starkey's remedy to see that the question is real. Weigh it on cause and effect, and read the range of voices on not just Starkey.
The idea that certain rights sit in law above ordinary politics, with courts holding the final say over what they require.
Formally, no. Courts still cannot strike down an Act of Parliament. The argument is that in practice the substance of power shifted to judges and unelected bodies while the old forms stayed in place.
Not obviously. It protects minorities and lets an ordinary person defeat the state in court. The case against the thesis rests largely on that defence. Starkey's reply is that the cost to democratic government has been too high.
