Review Essay: Nicholas Barber, The United Kingdom Constitution: An Introduction (Oxford, Clarendon Law, 2022)

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Stephen Tierney reviews Nicholas Barber’s book “The United Kingdom Constitution: An Introduction” (Oxford: Clarendon Law, 2022)

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—Stephen Tierney, Professor of Constitutional Theory, University of Edinburgh; Legal Adviser, House of Lords Constitution Committee

Nicholas Barber’s excellent new book is published at a time of great flux in the constitution of the United Kingdom. The book is wide ranging in its approach; it covers all of the main dimensions of the constitution in a relatively modest 360 pages, and it does so in a multi-layered approach that combines empirical exposition, doctrinal analysis, theoretical sophistication and carefully argued critical reflection.

General accounts of the UK constitution tend to fall into two camps: textbooks, of which there are numerous excellent examples, and shorter overviews which attempt to take the measure of the subject in a more discursive and less empirically-detailed way. An early example of the latter tradition is Colin Munro’s Studies in Constitutional Law; more recent accounts have been offered by Adam Tomkins in Public Law and Martin Loughlin in The British Constitution: A Very Short Introduction. Barber’s book is of this type but it is very much a distinctive contribution.

In terms of style the book is not over-loaded with case and statutory references. This adds greatly to the flow of the narrative. The book very much tells a story, or more precisely a series of over-lapping stories, which unveil the complexity of normative authority underpinning the UK system and relate how the nature of this authority interacts with ‘the political’; an intimate relationship which, as Barber demonstrates, characterises the nature of any operational constitutional system. The book can be described as a measured reflection by a senior academic, pausing after a number of years of study and scholarship, to offer a considered overview of his subject. In applying himself to this task Barber wears his not inconsiderable erudition lightly, but it is very much evident in the subtlety and exactness of his prose. In Baber’s precise but engaging style I was reminded of Bernard Crick’s In Defence of Politics; the quality of the writing bears such a comparison. Another skill of the author is to speak to more than one audience at the same time. For the serious scholar of the constitution there are incisive accounts of important debates over sovereignty, the contrast between derived and non-derived sources of constitutional authority, prerogative powers, judicial politics and devolution. But for a student new to the subject there is also a clear and coherent overview of the constitution that maps the interaction of its many institutions, rules and doctrines into one coherent chart. It is also a book one could happily recommend to the interested lay person. Given how vital constitutions are to all citizens it is important that scholars do make accessible the nature of our subject. That said, it is a risky endeavour to edge away from the security of endlessly footnoted authority. Barber takes this risk and is to be commended for doing so with such manifest success.

Another strength of the book is that it is far from merely descriptive but is articulated in a strong and at times provocative voice. I don’t have space to discuss the content of the book in detail but will engage with a few key points. One of the book’s main assets is that it reflects the wide hinterland of Barber’s work on the constitutional state and on the principles of constitutionalism. This allows the author to set the UK constitution within the wider conceptual family of constitutionalism, explaining the latter as the intimate relationship between constitution and state, and between both constitution and state with the wider international environment within which any constitution, including that of the UK, operates. A refreshing note which the book strikes is largely to avoid treating the UK constitution as an outlier on account of its lack of formal codification. Too often general discussions of the UK system of government descend into a tired and fruitless debate, located within a narrow and formalistic positivism, about whether it even merits the title ‘constitution’. Barber’s approach, at least in relation to the existential question, is to bring a functionalist perspective to the nature of higher order law and the purposes it serves: addressing small ‘c’ constitutionalism as a broad category that embraces within it big ‘C’ codified constitutionalism; the UK constitution may not feature the latter but it undoubtedly fits within the former. For Barber the function of any constitution is two-fold, to contain disagreement and to unify the state. On that basis the UK not only has a constitution but, in Barber’s view, one that works.

One issue Barber discusses early in the book is the case for codification. He is sceptical of arguments for a written constitution; a scepticism which I find convincing. The UK constitution does face considerable challenges, not least sub-state Irish and Scottish separatist nationalism. But it seems to me that a codified constitution is not a remedy to these essentially political problems. In many ways it has been the uncodified constitution that has facilitated flexible and asymmetric responses to territorial challenges. If the UK constitution cannot unify the state this is surely a consequence of political pathologies not institutional design; twenty years of accommodatory devolution surely bears this out. A second point is that constitutional codification brings with it a moment of nation-building as much as normative reordering; it therefore calls upon the identification of a common ‘we’ who both author and submit to the authority of the new legal order. Today it is precisely such an agreement on a common Britishness that cannot be achieved, and the effort to find one could well push the constitution to breaking point. Barber observes that ‘ambiguity has served the United Kingdom well’. I wonder if in fact the UK constitution is ambiguous or whether it has quietly adopted its own rationality: a self-conscious constitutional modesty; one that has produced a flexible and responsive set of institutional arrangements, but which also leaves debates over values to the political sphere. In a multi-territorial state this is arguably the most coherent way in which a pluralist constitution can operate.

The book of course addresses parliamentary sovereignty. Nick Barber has long held the view that this doctrine in effect died with Factortame – the decision in which the UK’s highest court suspended the operation of an act of Parliament that inadvertently conflicted with the supremacy of EC law; a supremacy recognised by the European Communities Act 1972. Despite Brexit Barber doubles down on this claim. In doing so though, and unusually given the otherwise functionalist tenor of the book, Barber relies upon largely positivist explanations: the development of the ‘constitutional statutes’ thesis by the common law courts and the hints made by certain judges that they might in certain circumstances call upon ‘common law principles’ to constrain statute substantively. I would query whether the first really reins in Parliament’s supremacy since it is only concerned with the very modest doctrine of implied repeal; and I feel that too much is made of the latter based on a very limited number of obiter comments or extra-judicial pronouncements. The House of Lords Constitution Committee, which includes the President Emeritus of the UK Supreme Court, has recently given a resounding endorsement of the orthodox account of parliamentary supremacy.

Barber’s account is also surprising because his long-standing argument about the significance of Factortame was founded less upon analysis of the wording of the judgment and more upon the UK’s political and legal relationship with a centralising Europe: ‘After 1972, adhering to parliamentary sovereignty would have unsettled a newly established democratic process and, as a result, the law had to change.’ Surely it flows that we must now analyse parliamentary supremacy through the prism of a new reality, the UK’s independence from the EU; and a more plausible argument is seemingly that Parliament’s authority has been revitalised by Brexit.

The book is very welcome for its focus on devolution which is a growing issue, especially in light of EU withdrawal and the repatriation of so many competences, creating a new UK internal market. Barber analyses devolution through the prism of subsidiarity, a concept he has developed elsewhere as a fundamental principle of constitutionalism. He contrasts arguments for a territorial constitution based upon ascriptive nationalism to his preferred justification – that those affected by decisions should play a principal role in making them; a consequentialist rather than an identity-based argument for sub-state self-rule.

This may well be, from a normative perspective, preferable, but it is very hard to see the UK constitution as reflecting this principle. UK devolution is marked by what we might call ‘double asymmetry’. Only certain territories have devolution (England does not) and each of these has a different model of devolution to reflect their very different societal histories and identities. A consequentialist approach would surely not have produced such a very lop-sided arrangement which favours small peripheral territories and which so greatly disadvantages relatively impoverished English regions. Sub-state nationalism is however the lived reality of the UK today.

Whether or not subsidiarity works as a register of analysis, Barber’s detailed and refreshing account of devolution is recognition of the UK’s pluri-territorial reality. The book implicitly acknowledges that the big task for the newly independent United Kingdom, freed from the normative constraints of EU membership, is to convince the citizens of all parts of the country that the constitution is capable of acting in a responsive way to its internal diversity and building a genuinely shared community of belonging. We have seen the recent publication of roadmaps for how this might be done – here and here. But it is by no means an easy journey in the face of ever more assertive separatism. In the end the UK constitution, like any constitution, can only do so much to manage political tensions. Nonetheless, our understanding of what the nature of the United Kingdom constitution is and therefore of its potential for development is much enriched by Nicholas Barber’s subtle and instructive book.

Suggested Citation: Stephen Tierney, Review Essay: Nicholas Barber, The United Kingdom Constitution: An Introduction, Int’l J. Const. L. Blog, March 8, 2022, at: http://www.iconnectblog.com/2022/03/review-essay-nicholas-barber-the-united-kingdom-constitution-an-introduction-oxford-clarendon-law-2022/