a post by David Howarth for the UK Constitutional Law Association blog
Lawyers like to make as much sense as possible of the material in front of them, transforming it, if they can, from a jumble of decisions and remarks into a coherent whole. For constitutional lawyers that habit of mind is both a blessing and a curse. It is a blessing because it causes lawyers to look for subtleties others miss (albeit sometimes subtleties they themselves create). It is a curse because when the material is generated by underlying mechanisms and ideas that fundamentally conflict, it leaves lawyers at a loss, or, worse, going round in circles.
The recent controversy played out in this blog, in the pages of The Times, and elsewhere about whether a UK government could procure from the monarch a veto of any bill passed by both houses of parliament without government support is an example of the curse. As A.H. Birch pointed out more than 50 years ago (A. H. Birch, Representative and Responsible Government: an Essay on the British Constitution London: Allen and Unwin, 1964), the British system of government encompasses two very different, often conflicting views of how it works. One view, perhaps more familiar to lawyers, is the constitution as it looks from Westminster. According to this Westminster view, Parliament, and especially the House of Commons, sits at the centre of the system. The Commons is, with the aid of the Parliament Acts 1911-49, legislatively supreme, and it makes and breaks governments by granting or withholding its confidence. Ministers, though not technically its delegates, are at its beck and call. It is the ‘cockpit of the nation’, the centre of political attention. As a result, although the House of Commons should not seek to administer the country, it is the ultimate source of authority for those who do. The other view, the Whitehall view, posits that the Crown, now largely in the form of its ministers, is the centre of the system. Effective government requires ministers to be able to act quickly and authoritatively. On this view, parliament is peripheral. It can assist effective government by passing legislation when ministers ask, but otherwise it is a side-show.
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