What's Wrong with the British Constitution?

Abstract

Abstract In this provocative new study, Iain McLean argues that the traditional story of the British constitution does not make sense. It purports to be both positive and normative: that is, to describe both how people actually behave and how they ought to behave. In fact, it fails to do either; it is not a correct description and it has no persuasive force. The book goes on to offer a reasoned alternative. The position that still dominates the field of constitutional law is that of parliamentary sovereignty (or supremacy). According to this view, the supreme lawgiver in the United Kingdom is Parliament. Some writers in this tradition go on to insist that Parliament in turn derives its authority from the people, because the people elect Parliament. An obvious problem with this view is that Parliament, to a lawyer, comprises three houses: monarch, Lords, and Commons. The people elect only one of those three houses. This book aims to show, contrary to the prevailing view, that the United Kingdom exists by virtue of a constitutional contract between two previously independent states. Professor McLean argues that the work of the influential constitutional theorist A. V. Dicey has little to offer those who really want to understand the nature of the constitution. Instead, greater understanding can be gleaned from considering the ‘veto plays’ and ‘credible threats’ available to politicians since 1707. He suggests that the idea the people are sovereign dates back to the seventeenth century (may be fourteenth century in Scotland), but has gone underground in English constitutional writing. He goes on to show that devolution and the United Kingdom's relationship with the rest of Europe have taken the United Kingdom along a constitutionalist road since 1972, and perhaps since 1920. He concludes that no intellectually defensible case can be made for retaining an unelected house of Parliament, an unelected head of state, or an established church. This book will be an essential reading for political scientists, constitutional lawyers, historians, politicians, and the like.

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