Hostname: page-component-78c5997874-fbnjt Total loading time: 0 Render date: 2024-11-14T22:36:56.634Z Has data issue: false hasContentIssue false
  • English
  • Français

Progressive Eras, Periods of Reaction, and Constitutional Change

Published online by Cambridge University Press:  06 March 2019

Danny Nicol

Abstract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

This article argues that “political herding” plays a crucial role in driving and shaping constitutional change. It links the prevalence of political herding to a psychological phenomenon, “social influence.” It goes on to argue that constitutional change is often driven by the desire for certain substantive policies, which in turn are determined by whether, in a particular epoch, the political community is herding in a progressive or reactionary direction. Contending that the general phenomenon whereby political communities go through recurrent swings to the left or to the right has been neglected by scholars, this essay aims to give this phenomenon the centrality it merits in relation to the evolution of the British constitution. Accordingly it considers the 1906 Liberal government, the 1945 Labour government and the lengthy succession of post-1979 neoliberal governments, analyzing how substantive progressive and reactionary programs led to constitutional change. Finally this article considers the legitimacy both of political herding itself, and of political herding's impact on constitutional change.

Type
Articles
Information
German Law Journal , Volume 15 , Issue 3 , 01 May 2014 , pp. 437 - 459
Copyright
Copyright © 2014 by German Law Journal GbR 

References

1 See Brummer, Alex, The Crunch: How Greed and Incompetence Sparked the Credit Crisis (2009).Google Scholar

2 The transnational dimension of herding is not the focus of this essay. On this aspect, see Nicol, Danny, The Constitutional Protection of Capitalism (2010). See also Ian Bartle, Globalization and EU Policy-making: The Neoliberal Transformation of Telecommunications and Electricity (2005).Google Scholar

3 See Wright, Anthony, The Constitution, in Party Ideology in Britain 191 (Leonard Tivey & Anthony Wright eds., 1989).Google Scholar

4 It is not part of my argument that constitutional change is always so driven.Google Scholar

5 See Hayward, J.E.S., The Political Science of Muddling Through: a de facto Paradigm?, in The Political Science of British Politics 3 (J.E.S. Hayward & Philip Norton eds., 1986).Google Scholar

6 See Norton, Philip & Hayward, J.E.S., Retrospective Reflections, in The Political Science of British Politics (J.E.S. Hayward & Philip Norton eds., 1986).Google Scholar

7 Gramsci, Antonio, Selections from the Prison Notebook 322 (1971).Google Scholar

8 Kassin, Saul, Fein, Steven & Markus, Helen Rose, Social Psychology 95 (7th ed. 2008).Google Scholar

9 See id. at 252–59.Google Scholar

10 See, e.g., Moscovici, Serge, The Invention of Society: Psychological Explanations for Social Phenomena (1993).Google Scholar

11 Billig, Michael, Ideology and Options 11 (1991).Google Scholar

12 Billig, Michael, Condor, Susan, Edwards, Derek, Gane, Mike, Middleton, David & Radley, Alan, Ideological Dilemmas (1988). The authors accept that one can differentiate between lived ideology—the culture of a society—and intellectual ideology—the very different concept of an intellectual system of ideas. Nonetheless there are contrary themes both between and within lived and intellectual ideologies.Google Scholar

13 A pioneering attempt to link psychology to constitutional matters is made in Dawn Oliver, Psychological Constitutionalism, 69 Cambridge L.J. 639 (2010).Google Scholar

14 Watts, Duncan, Whigs, Radicals and Liberals 1815–1914 137–38 (2002).Google Scholar

15 Cook, Chris, A Short History of the Liberal Party 1900–84 47 (1984).Google Scholar

16 See Oliver, , supra note 13, at 139.Google Scholar

17 See Watts, , supra note 14, at 47.Google Scholar

18 Id. at 48.Google Scholar

19 G.R. Searle, The Liberal Party: Triumph and Disintegration 1886–1929 97 (1992).Google Scholar

20 See Oliver, , supra note 13, at 148.Google Scholar

21 See Watts, , supra note 14, at 55.Google Scholar

22 See Oliver, , supra note 13, at 156.Google Scholar

23 Craig, Paul, Sovereignty of the United Kingdom Parliament after Factortame, 11 Y.B. Eur.L. 221, 237 (1991).Google Scholar

24 See e.g., Nicol, Danny, The Constitutional Protection of Capitalism ch. 1 (2010) (describing the conception of democracy).Google Scholar

25 “Balance,” like “the rule of law,” is a word/phrase which has a force or power of its own. For a constitution to lack balance automatically casts it in an unfavourable light. But, as Paul Craig himself has observed, one has to be clear as to the conception of balance which is being posited, and the particular theory of justice on which that conception is based. See Craig, Paul, Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework, Pub.L. 467, 487 (1997).Google Scholar

26 See Watts, supra note 14, at 96.Google Scholar

27 Bentley, M., The Liberal Response to Socialism 1918–29, in Essays in Anti-Labour History (K.D. Brown ed., 1974).Google Scholar

28 Barker, Ernest, Essays on Government 124 (1914).Google Scholar

29 Pimlott, Ben, Labour and the Left in the 1930s 145–47 (1977).Google Scholar

30 Morgan, Kenneth, The Labour Party Since 1945, in UK Political Parties Since 1945 (Anthony Seldon ed., 1990).Google Scholar

31 Attlee, Clement, The Labour Party in Perspective (1937).Google Scholar

32 Douglas, Jay, Change and Fortune 63 (1980).Google Scholar

33 Pimlott, Ben, Hugh Dalton 223 (1985).Google Scholar

34 Foote, Geoffrey, The Labour Party's Political Thought: A History 183–99 (1985).Google Scholar

35 Thorpe, Andrew, A History of the British Labour Party 98 (1987).Google Scholar

36 Id. at 99–101.Google Scholar

37 Pearce, Robert, Attlee's Labour Governments 1945–51 14 (1994).Google Scholar

38 See Thorpe, , supra note 35, at 108.Google Scholar

39 Friedrich. A. Hayek, The Road to Serfdom (1986).Google Scholar

40 Laybourne, Keith, The Rise of Labour 105 (1988).Google Scholar

41 Martin, Kingsley, Harold Laski (1953).Google Scholar

42 See Thorpe, , supra note 35, at 123.Google Scholar

43 See Pearce, , supra note 37, at 48.Google Scholar

44 Miliband, Ralph, Parliamentary Socialism 288 (1972).Google Scholar

45 Morgan, Kenneth, Labour in Power 1945–1951 (1984).Google Scholar

46 See Thorpe, , supra note 35, at 125.Google Scholar

47 See Attlee, , supra note 31, at 172.Google Scholar

48 See Pearce, , supra note 37, at 56.Google Scholar

49 Theakston, Kevin, The Labour Party and Whitehall 73 (1992).Google Scholar

50 Id. at 101.Google Scholar

51 See Brummer, , supra note 1, at ch. 1.Google Scholar

52 Tivey, Leonard, Economic and Industrial Policy, in Party Ideology in Britain 132 (Leonard Tivey & Anthony Wright eds., 1989).Google Scholar

53 See Laybourne, , supra note 40, at 120.Google Scholar

54 Morgan, , supra note 30.Google Scholar

55 Mitchell, Austin, Election '45 119 (1995).Google Scholar

56 O'Sullivan, Noel, Conservatism, the New Right and the Limited State, in The Political Science of British Politics (Jack Hayward & Philip Norton eds., 1996).Google Scholar

57 See Pearce, , supra note 37, at 51, 54–6.Google Scholar

58 Letwin argues that the Charter unequivocally committed the Tories to maintaining full employment and the welfare state, to lavish spending of public money, and generally to expanding the power of the State, which accepted nationalization as irreversible. She points out that it sold 2.5 million copies in six months. Harold Macmillan rejoiced that the ‘progressive element in the party’ had ‘seized control … by the vigour of its intellectual and spiritual power.‘ Shirley Letwin, The Anatomy Of Thatcherism 56 (1992).Google Scholar

59 Ryan, Alan, Party Ideologies Since 1945, in UK Political Parties Since 1945 81–3 (Anthony Selden ed., 1990).Google Scholar

60 Francis Beckett argues there was no real post-war consensus because of deep Conservative skepticism about the welfare state. See Beckett, Francis, Clem Attlee 264 (1997).Google Scholar

61 See Wright, Anthony, The Constitution, in Party Ideology in Britain 187 (Leonard Tivey & Anthony Wright eds., 1989).Google Scholar

62 See id. Google Scholar

63 Skidelsky, Robert, Introduction, in Thatcherism 1 (Robert Skidelsky ed., 1988).Google Scholar

64 See Joseph, Keith, The Humanity of Capitalism, The Times, Jul. 28, 1986.Google Scholar

65 See Cockett, Richard, Thinking the Unthinkable: Think Tanks and the Economic Counter-Revolution 1931–1989 243 (1995).Google Scholar

66 See Gamble, Andrew, The Free Economy and the Strong State: The Politics of Thatcherism 116 (1988).Google Scholar

67 See Letwin, , supra note 58, at ch. 12.Google Scholar

68 See Jenkins, Simon, Thatcher and Sons: A Revolution in Three Acts ch. 8 (2006).Google Scholar

69 See Bogdanor, Vernon, The Constitution, in The Thatcher Effect 137 (Dennis Kavanagh & Anthony Seldon eds., 1989).Google Scholar

70 See Hayek, Friedrich, The Constitution of Liberty 184–85 (1978).Google Scholar

71 See Gamble, Andrew, The Free Economy and the Strong State: The Politics of Thatcherism ch. 4 (1994).Google Scholar

72 See Brittan, Samuel, The Thatcher Government's Economic Power, in The Thatcher Effect: A Decade of Change 3 (Dennis Kavanagh & Anthony Seldon, eds., 1989).Google Scholar

73 Jenkins, , supra note 68, at 4.Google Scholar

74 See Seldon, Anthony, Major: A Political Life 502–07 (1997).Google Scholar

75 See Jenkins, , supra note 68, at 206.Google Scholar

76 Major, John, The Autobiography 734 (1999).Google Scholar

77 See Colin, Hay, The Political Economy of New Labour, in The New Labour Reader 59 (Andrew Chadwick & Richard Heffernan eds., 2003). The Policy Review accepted that the privatizations of the Thatcher government ought not to be reversed. See Fielding, Steven, The Labour Party 203 (2003).Google Scholar

78 See Driver, Stephen & Martell, Luke, New Labour: Politics after Thatcherism 40 (1998).Google Scholar

79 See Heffernan, Richard, New Labour and Thatcherism, in The New Labour Reader 49 (Andrew Chadwick & Richard Heffernan, eds., 2003).Google Scholar

80 Jenkins, , supra note 68, at 258.Google Scholar

81 See Fielding, Steven, The Labour Party: Continuity and Change in the Making of ‘New‘ Labour 203 (2003).Google Scholar

82 For example, by the end of New Labour's tenure eighty percent of care homes had been privatized.Google Scholar

83 See Rawnsley, Andrew, Servants of the People: The Inside Story of New Labour 110 (2000).Google Scholar

84 See Brummer, , supra note 1, at 88–90.Google Scholar

85 See Thatcher, Margaret, The Downing Street Years ch. 18 (1993).Google Scholar

86 Turner comments that post-SEA there was a growing realization within the party that the single market was merely a prelude to further integrationist moves. Having sold membership to the public on the pragmatic basis that “Europe” was essentially an economic and trading organization, Mrs. Thatcher distanced herself from the Treaty she had signed. See Turner, John, The Tories and Europe 104–08 (2000).Google Scholar

87 Gamble, , supra note 71, at 239.Google Scholar

88 See Turner, , supra note 86, at 557.Google Scholar

89 It is after all the leader of the party best able to secure a Commons majority who becomes Prime Minister, and the rules of the party determine who becomes leader.Google Scholar

90 Mair, Peter, Partyless Democracy, 2 New Left Rev. 21 (2000).Google Scholar

91 Id. Google Scholar

92 See Quinn, Thomas, Modernising the Labour Party: Organisational Change Since 1983 191 (2004). In any event, the “Prussian discipline” ultimately backfired, with backbench MPs becoming somewhat more independent. See Cowley, Philip, The Rebels (2005).Google Scholar

93 See Shaw, Eric, The Labour Party Since 1945 202 (1994).Google Scholar

94 See Russell, Meg, Building New Labour: The Politics of Party Organisation 282–83 (2005).Google Scholar

95 See Marquand, David, Progressive or Populist? The Blair Paradox, in The Progressive Dilemma: From Lloyd George to Blair 225–46 (David Marquand ed., 1999).Google Scholar

96 Ludlam, Steve & Smith, Martin, Governing as New Labour: Policy and Politics Under Blair 126 (2004).Google Scholar

97 See Mair, , supra note 90, at 26.Google Scholar

98 Id. at 27.Google Scholar

99 See Arend Lijphart, Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries (1984).Google Scholar

100 See Nicol, Danny, Professor Tomkins' House of Mavericks, 2006 Pub. L. 467. Cf. Adam Tomkins, Professor Tomkins' House of Mavericks: A Reply, 2007 Pub. L. 33.Google Scholar

101 See Driver, & Martell, , supra note 78, at 2–3.Google Scholar

102 See Hayek, Friedrich, Law, Legislation and Liberty ch. 18 (1982).Google Scholar

103 See generally Kogan, David & Kogan, Maurice, The Battle for the Labour Party (1982).Google Scholar

104 The Labour leadership of the 1980s and 1990s did not share the respect of the Attlee generation for the Party's internal structures and delegate democracy, which was itself a reaction against the experiences of MacDonaldism. See Minkin, Lewis, The Labour Party Conference 277 (1980).Google Scholar

105 See Waldron, Jeremy, Law and Disagreement 1 (1999).Google Scholar

106 Griffith, John, The Political Constitution, 42 Mod. L. Rev. 1, 19 (1979).Google Scholar

107 Ewing, Keith, The Politics of the British Constitution, 2000 Pub. L. 405, 436.Google Scholar

108 See Nicol, , supra note 2, at ch. 1.Google Scholar

109 See Foley, Michael, The Politics of the British Constitution 286 (1999). See also Nicol, Danny, The Legal Constitution: United Kingdom Parliament and European Court of Justice, 5 J. Legis. Stud. 135 (1999).Google Scholar

110 See Ewing, , supra note 107, at 405, 436.Google Scholar