Reviewed by Geoffrey Wandesforde-Smith, Department of Political Science, University of California, Davis. Email: gawsmith [at] ucdavis.edu.
The broad outlines of what is arguably a major constitutional transformation in Britain over recent decades have been sketched from several perspectives over the last few years (King, 2007; Bogdanor, 2009; McLean, 2009). Scholars can and have and will continue to debate just how profound this change may turn out to be, particularly when it is seen in reasonably long term historical and political perspective (Cosgrove, 2009; Flinders, 2010; Marquand, 2011). In most accounts to date, for example, and somewhat surprisingly to most observers outside Britain, the British monarchy appears to be largely beyond the ambit of these changes, although it has certainly not been exempt from either political scrutiny or scholarly criticism (Cannadine 1998: pp.3-85; Kuhn, 1999).
On other fronts that implicate other major branches of British government, however, the recent changes appear to be adding up to something both substantial and consequential. This would certainly include the role of British courts in judicial review of the exercise of ministerial discretion, the use of referenda to decide major issues of public policy, and the proliferation of designs for electoral systems to choose representatives to the European Parliament and the devolved legislatures in Britain.
In the last case, the newer designs for representative democracy stand in marked contrast to the method still used to elect members of the House of Commons at Westminster – simple majority of the votes cast among all candidates standing for election in a geographical constituency.
On still other fronts, most notably in the case of the re-constitution of the House of Lords and the dis-establishment of the Church of England, reform remains a work more or less in progress. And it could turn out in both of these cases to be protracted. Overall, however, constitutional change in recent decades in Britain has been notable and it shows no sign of abating. As is widely known, for example, the Scottish National Party, which presently has a working majority in the Scottish Assembly, has plans for a referendum, probably in 2014, to recalibrate the relationship between the English and Scottish crowns settled by the Acts of Union in 1706.
There is still, on the other hand, no British Constitution, in the sense that there exists a single codification of the many statutory reforms that have been made in recent decades to arguably constitutional elements of the British political system. This makes it harder than it would otherwise be to see the broad outlines of the changes which are starting to add up to a new framework [*443] for the conduct of British politics, and harder, too, to discern their causes. Perhaps there should be such a written British Constitution, and that case has been made, although not widely accepted (Bogdanor, Khaitan and Vogenauer, 2007).
Either way, however, most analysts of the evolving constitutional contours of British political life would agree with the proposition that “EU membership has done more to dig the grave of the traditional [and unwritten] constitution than any other development in post-war British history” (Marquand 2011: p.280). And, if there is a viable and even more specific candidate for the chief driver of these changes, across all branches and aspects of British government, it is by most accounts the adoption of the European Convention on Human Rights, and its incorporation into British law and political practice by the Human Rights Act of 1998.
Enter, then, Caroline Morris, presently of Queen Mary College, London, with a research and writing project that began life as a doctoral dissertation at King’s College, London, and is now a provocative and engaging book. The book is about the history of the laws governing the election of members of the House of Commons, the lower house of Parliament. And there is not much doubt, I think, that the issues Morris engages in the book are of constitutional significance.
Morris argues that the British Human Rights Act, along with other factors, has brought, or is at least bringing, into the realm of public law in Britain, and thus under greater scrutiny from public policy and public interest perspectives, a series of important questions about the nature and quality of representative government in Britain. They are issues that in many major respects have been treated for the last six or seven hundred years as if they were private matters. The prospect of delineating this shift from private to public in election law in Britain is the main hook on which Caroline Morris hangs her book.
Morris, thus, applauds the tendency, for which Bogdanor (2009) is perhaps the greatest advocate among British political scientists now practicing, to wrest effective control of major aspects of British political life from parliamentary elites and subject them to more discipline from institutions that are vehicles for or responsive to expressions of direct democracy. Morris does not make this connection explicitly, but that is clearly the thrust of her analysis.
But there is more to Morris’s project than this.
Morris wants to use her book about the laws that govern the selection of candidates for parliamentary elections, about the ways they get elected, and about the ways they may later be barred or removed from a seat in the House of Commons to argue for a new conceptualization of election law in Britain. This is a more challenging and problematic scholarly ambition, for several reasons. And, as I hope will become clear, it is not entirely evident why Morris needed to cross this bridge, except perhaps to give her dissertation project a distinctiveness it might not otherwise possess.
For one thing, in Britain, as elsewhere, and in any representative democracy, the [*444] law of elections is now and always has been intensely and necessarily political. It touches directly on the legitimacy of the state.
It also has a very long history in Britain marked by what Morris calls “a fierce battle for control [of the legality and, thus, the legitimacy of elections] between the judiciary and Parliament,” (p. 1) with the latter institution, like other legislatures, taking the view that as a matter of privilege it should be the judge of all disputes having to do with its own membership. In fact, and because various aspects of the administration of elections are now and have for centuries in Britain been governed by statutes, the courts in Britain have also long had a role in deciding various sorts of election disputes.
Morris traces this “fierce battle” and its twists and turns, giving first the courts and then Parliament and then the courts, again, the upper hand in Britain in the control of the legality of elections, from the early thirteenth century to what she calls “the defining moment in controverted elections law [which] came in 1868 when the Election Petitions and Corrupt Practices Act was enacted, transferring jurisdiction [over petitions alleging electoral irregularities] from the House [of Commons] to the judiciary” (pp.83-84).
There has never been, in other words, and at least as far back as the thirteenth century, an entirely settled conception of the nature and content of election law in Britain, or of its constitutional significance. And it is not entirely clear from Morris’s account why that should now change, even though she wants to rescue election law from its relative obscurity in British legal scholarship and give it new life as a subject for both legal research and teaching, by giving a settled meaning to what was previously and clearly by her own account unsettled.
From 1868 forward, at least until very recently, election law faded both from public view and scholarly interest. For most of the last century there were few challenges to the law, which was not much revised, and Parliament paid little attention to the subject, save for occasional interventions into narrow questions about who was eligible to stand for election. Both of the two major texts on the subject reflect this rather quiescent post-1868 view of the legal landscape (Rawlings, 1988; Blackburn, 1995).
Election law in Britain has, thus, and until recently, been understood as a rather eclectic body of rules and regulations dealing with participation in the electoral system by both candidates and voters. As such, its subject matter ranged across “the legal aspects of boundary drawing, the voting system in use and its alternatives, the law relating to who may or may not vote, the development and delineation of electoral offences, and the regulation of political expenditure” (p.2).
Election law did not shine an especially bright light on the recruitment, selection, election, seating, and unseating of parliamentary candidates. Anyone opening the pages of the leading text on election law in the United States (Lowenstein, Hasen and Tokaji, 2012) would find a similarly capacious view of [*445] the landscape of election law as an academic sub-discipline.
What upset the apple cart in Britain and arguably justifies the new view of the election law cathedral Morris ambitiously advances as a claim for the scholarly contribution of her book is the case of Jepson and Dyas-Elliott v The Labour Party (1996), and the flood of other litigation that followed therefrom. In anticipation of the 1997 general election and with a view to changing the character of parliamentary representation, the British Labour Party adopted a policy of all-women short lists of candidates for those relatively safe seats it expected to win (and the Labour Party, incidentally, has now and has long had a fair number of such seats, especially but not exclusively in the industrial north of England).
Patrick Jepson, a law student at the time, challenged this party policy on the grounds that it constituted illegal sex discrimination against his employment as Labour Party candidate and was, therefore and in effect, a violation of his human rights. The Employment Tribunal upheld his claim, and there then followed an avalanche of litigation bringing other aspects of the electoral process under human rights law scrutiny in the courts. There was a concomitant resurgence of election petitions alleging various other sorts of electoral fraud, also to be reviewed in the courts, and subsequently a renewed and far from unsurprising parliamentary interest in legislating and liberalizing the terms and conditions under which people could stand for election.
The net effect of these developments has surely been to bring what Morris calls “the law of being elected to Parliament” (p.2) into much sharper focus in Britain than before. This has led to a rehearsal and reconsideration at some deep level, well below the radar of everyday political affairs in Britain, of theories of representation, which Morris addresses in chapter 2 of her book. It has renewed interest in the question of who, as a matter of law, is eligible to be a candidate for election, the chief preoccupation of chapter 3.
By the same token, controversy has grown around questions about who may contest elections by petition, on what grounds, and by what means (chapter 4). The bases for challenging candidate selection, the legal status of political parties in Britain, and the seating and unseating of members of Parliament (chapters 5 and 6) have also been brought under increasing public scrutiny, although parliamentary privilege is still relied upon for dealing with members who have in some way broken the rules. (The promise of parliamentary recall elections, made by all three major parties in the 2010 British general election, remains as of this writing unfulfilled).
Does this all add up, then, to a plausible claim that both in a modern sense and looking forward the law of elections in Britain ought to be redefined conceptually and, thus, revitalized as a subject for scholarly inquiry as “the law of being elected to Parliament,” or as “the law of making and unmaking representatives” in a democracy (p.2)? I think not.
Morris is correct to emphasize that when the two leading extant texts on election law in Britain were written (Rawlings, 1988; Blackburn, 1995) “human rights [*446] jurisprudence did not have a high profile” and that now, “with the incorporation of the European Convention on Human Rights into domestic law via the Human Rights Act 1998, human rights have the potential to become the dominant lens through which the legal issues pertaining to elections are viewed” (p.4).
But there is still an awful lot of interest in Britain, and elsewhere, in that broader election law agenda where people talk and argue – and not always in the language and conventions of human rights law -- about “the legal aspects of boundary drawing, the voting system in use and its alternatives, the law relating to who may or may not vote, the development and delineation of electoral offences, and the regulation of political expenditure.”
It is all to the good that Morris has thoughtfully approached and crossed the bridge that connects the law of making and unmaking representatives in a modern democracy, through all its various stages and phases, to the rest of election law. For sure, future election law texts and courses in Britain will be unable to appear complete or authoritative if they fail to take full account of Morris’s historical analysis of the law of electoral controversies. But she did not need, it seems to me, to lower the portcullis and leave the rest of election law behind in order to establish the vitality of her own contribution.
Blackburn, Robert. 1995. The Electoral System in Britain. London: Macmillan.
Bogdanor, Victor. 2009. The New British Constitution. Oxford and Portland, OR: Hart Publishing.
Bogdanor, Victor, Tarunabh Khaitan and Stefan Vogenauer. 2007. “Should Britain Have a Written Constitution?” The Political Quarterly 78(4): 499-517.
Cannadine, David. 1998. History in Our Time. New Haven, CT: Yale University Press.
Cosgrove, Richard A. 2009. “Review: The New British Constitution,” Law and Politics Book Review 19(10): 763-766.
Flinders, Matthew. 2010. “Bagehot Smiling: Gordon Brown’s ‘New Constitution’ and the Revolution that Did Not Happen,” The Political Quarterly 81(1): 57-73.
King, Anthony. 2007. The British Constitution. Oxford: Oxford University Press.
Kuhn, William. 1999. “Review: The Future of the British Monarchy,” The Journal of British Studies 38(2): 267-272.
Lowenstein, Daniel, Richard Hasen and Daniel Tokaji. 2012. Election Law: Cases and Materials, 5th ed. Durham, NC: Carolina Academic Press.
Marquand, David. 2011. “Review Article: The Once and Future Constitution,” Government and Opposition 46(2): 274-292.
McLean, Iain. 2009. What’s Wrong with the British Constitution? Oxford: Oxford University Press.[*447]
Rawlings, Hugh. 1988. Law and the Electoral Process. London: Sweet and Maxwell.CASES:
Jepson and Dyas-Elliott v. The Labour Party, 1996 IRLR 116.
Copyright 2012 by the Author, Geoffrey Wandesforde-Smith.