Friday, December 03, 2021

Mini-Review – N.W. Barber, The United Kingdom Constitution: An Introduction

Mark Tushnet


Hardly surprising, given its author, that this is a truly excellent introduction to the UK Constitution (which Barber correctly insists isn’t the British Constitution or, horror of horrors, the English Constitution). It nicely blends what I’ve come to think of as foundational constitutional theory, which addresses questions like, What is a nation?, What is the rule of law,? and What are the functions of the three branches?, with a careful examination of many details of what Barber calls the New Constitution (as contrasted with the Old Constitution in which the dominant principle was parliamentary sovereignty [a shorthand for a more complex account that Barber sketches]).


I think the book’s primary intended audience is “within the UK,” particularly for students and interested lay people looking for the promised introduction. I have a few minor criticisms, at least from outside the UK. I personally would have liked a bit more on statutory instruments (how they are produced), Henry VIII clauses (as I understand them, provisions relevant to some aspects of crafting statutory instruments), and ouster clauses (the rough equivalent of jurisdiction-stripping in the United States).


Two general observations. (1) More than one would find in an introduction to the US Constitution, Barber spends time on the foundational theoretical question of how state sovereignty is constructed. My comparative perspective on this can be put as they might be from each side of the Atlantic: As I’ve written with respect to Martin Loughlin’s elaborate discussion of that (and related issues), it seems to me that writers from the UK in some sense have to deal with that question because they don’t have a canonical written constitution to deal with; in the United States the written constitution provides scholars with a seemingly simple answer to the question, “How is state sovereignty constructed?” (“By the Constitution, dummy.”) And from the other side of the Atlantic, as Loughlin responded to my observation, it seems that US writers overlook the question because they mistakenly think that the existence of a canonical written constitution solves the problem (which, he argues and as Barber implicitly restates, it doesn’t).


(2) Barber’s excellent discussion of conventions and (weaker?) norms of constitutional behavior concludes with this important observation/“worry”: “if political parties do play a central role [in leading politicians to comply with conventions], a weakening of party structures … may lead to a weakening of the effectiveness of some conventions.” This points, correctly in my view, towards what I’ve described as a “developmental” perspective on norm-erosion/change in my current draft handbook contribution on constitutional hardball. I plan to incorporate Barber’s observation in a revision of the draft.


I strongly recommend this book.

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