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What's Wrong with the British Constitution?


ISBN13: 9780199546954
Published: November 2009
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £71.00
Paperback edition , ISBN13 9780199656455



Despatched in 3 to 5 days.

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 UK 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 that the people are sovereign dates back to the 17th century (maybe the 14th in Scotland), but has gone underground in English constitutional writing. He goes on to show that devolution and the UK's relationship with the rest of Europe have taken the UK 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. The book will be essential reading for political scientists, constitutional lawyers, historians, and politicians alike.

Subjects:
Constitutional and Administrative Law
Contents:
Preface
Contents
List of tables
Part I Introduction
1: The English public lawyers' constitution
2: A social-science-based alternative - veto player theory
Part II The constitution from below
3: Iain McLean and Alistair McMillan: 1707 and 1800: a treaty (mostly) honoured and a treaty broken
4: Iain McLean and Jennifer Nou: Why should we be beggars with the ballot in our hand? The 1909 Budget and the House of Lords
5: Iain McLEan and Tom Lubbock: The curious incident of the guns in the night time - Curragh, Larne and the Constitution
Appendix to Chapter 5. How much did Bonar Law know about the Larne gun-running?
6: The contradictions of Professor Dicey
7: auses and consequences of the unionist coup d'état;
Part III The erosion of Diceyan ideology
8: The impact of UK devolution
9: The impact of Europe
10: The impact of human rights
a) Appendix to Chapter 10. European Convention on Human Rights and Protocols adopted by the United Kingdom as of 2008.
Part IV Things to leave out of a written constitution
11: Unelected chambers
12: Monarchs
a) Appendix to Chapter 12. 'The constitutional position of the sovereign': Letters between king George V and prime minister H. H. Asquith, autumn 1913
13: Established churches
Part V Things to put in
14: We the people
Dramatis personae
References
Index.