The Rule of (Constitutional) Law? Examining the Changing Balance Between Political and Legal Constitutionalism in Post-1997 United Kingdom

Abstract

The last two decades have witnessed a period of constitutional change without precedent in the United Kingdom’s contemporary history, and prominent constitutionalists have suggested that these transformations signified primarily a legalisation of the British constitutional settlement. The present research hence offers a review of the most salient and impactful instances of constitutional change since 1997 with the aim of assessing in what ways the UK could be transitioning from a more political to a more legal constitutional framework. It highlights a greater reliance on legal devices to regulate constitutional processes and more frequent resort to judicial mechanisms of constitutional control. Indeed, the virtual entrenchment of various classes of norms (ECHR rights, common law constitutional rights and principles, Thoburn-‘constitutional statutes’) suggests the formation in British public law of a ‘bloc de constitutionnalité’ that could serve as basis for increasingly genuine forms of constitutional review. Concurrently, British courts are performing more of the functions of constitutional courts and appear willing to assume the role of constitutional guardian ascribed to the judiciary in a legal-constitutional model. Overall, the political constitution and its core principle of parliamentary sovereignty seem to be under challenge, particularly in judicial and jurisprudential debates grounded in the influential theory of common law constitutionalism. We therefore argue that the British constitution can no longer be described as exclusively ‘political’ and that there is at least some evidence of a trend towards legal constitutionalism in the UK.