The Constitution: Fact or Law?

What is the basis of the British constitution? It is obviously derived from the old English constitution, with necessary adjustments resulting from unions. But is it attributable to some remote political compact between government and people, or to a series of historical accidents, or to the common law? Perhaps it is a little of all three. In the great constitutional debates in the 17th century, history was at the forefront. Legal history was a core subject, and Master Selden (d. 1654) became a national figure through his deployment of historical sources in debate. That was a different era, and we have perhaps cut ourselves loose from our anchorage, though it is still obvious that the unwritten constitution has evolved over time. Its ability to do so is a strength shared with the unwritten common law. Both are living organisms which evolve in dealing with age-old problems as they constantly present themselves in new ways. They have memories, a body of accumulated experience. At their core is supposed to be the sovereignty of Parliament, often lauded as a triumph of democracy; but it could also be seen as the means of undermining and destroying democracy.

Centuries ago, the House of Commons provided the hard-won means by which governments could be kept in check. Some kings tried to manage as long as they could without Parliaments, relying on prerogative powers; but since the law would not allow them to raise money without parliamentary approval, they were forced to summon Parliaments and accept the consequences. That is almost the reverse of the world in which we now live. Parliament is in constant session and has become the means through which governments exercise their power. If a government cannot persuade Parliament to enact what it wishes, it is supposed to resign. It is true that effective challenges can still sometimes be made to unduly sweeping powers, especially in bipartisan select committees, or through outcries in the press. But they are effective only if the Government can be made to see the point and accept amendments. We have what Lord Hailsham called an ‘elective dictatorship’. Could our constitution prevent temporary dictatorship from becoming a tyranny?

There are many alarming threats to constitutionalism in today’s world, some of them in countries we used to regard as civilised partners. We may like to believe that such things could not happen here. But some of the machinery is already in place. For instance, the Civil Contingencies Act 2004 provides (s. 22) that “Emergency regulations may make any provision which the person making the regulations is satisfied is appropriate for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency” … and that they “may make provision of any kind that could be made by Act of Parliament” for the “requisition, confiscation or destruction of property, with or without compensation, and the prohibition of movement or any other activities”. They may create an offence of failing to comply with the regulations. And in doing these things they may disapply or modify any other statute. In other words, something close to absolute power is available under our present law to a minister making such regulations. It is at least limited to emergencies; and we would obviously need drastic emergency action in the event of a nuclear attack or foreign invasion. But an ‘emergency’ is defined more broadly in the Act. It could include “an event or situation which threatens serious damage to human welfare by causing or involving … damage to property, disruption of a supply of money, food, water, energy or fuel, disruption of a system of communication, disruption of facilities for transport, or disruption of services relating to health”. The measure was based on the Emergency Powers (Defence) Act 1939, though it goes a good way beyond what was deemed necessary as World War II approached. And the Act gives ministers power to extend it further.

Similar legislative powers are creeping into other statutes in what are now called Henry VIII clauses. A notorious example is the ‘Power to change the law’ section in the Banking Act 2009, s. 75, which empowers the Treasury, by order, to amend the law to enable its new powers to be used effectively, including power to “disapply or modify the effect of [any] provision of [any] enactment”. The Constitutional Reform and Governance Act 2010, s. 51, likewise empowers ministers to make any provision they consider ‘appropriate’ in consequence of any provision of the Act, and this can include amending, repealing or revoking any other Act. The Childcare Act 2016, s. 4(2)(d), which confers a power to “amend, repeal or revoke any provision made by or under [any] Act (whenever passed or made)”, provoked condemnation from the then Lord Chief Justice (Lord Judge) as being almost entirely an enabling Act, not laying down any principles but merely giving ministers wide powers to make up law when they felt ready to do so. In an age of prolific and detailed regulatory legislation there is a good case for permitting minor amendments to primary legislation being made by ministerial order; it is of everyday occurrence and probably unavoidable. But the statutes I have mentioned go beyond that.

Both are living organisms which evolve in dealing with age-old problems as they constantly present themselves in new ways.

I am not suggesting that such provisions have been misused as yet, though similar powers have been invoked to undermine the rule of law in other countries. Nor am I suggesting that the driving force behind them is necessarily a growing taste for authoritarianism. It may just be the inbuilt mindset of draftsmen to create powers as broadly as possible and see if anyone objects. And there is, thankfully, growing opposition to them within Parliament. Nevertheless, on 16 February 2026 there was an article in The Times by a special adviser, in which he wrote that “When there are roadblocks, ruthless use of emergency legislation, amendments, and a programme to roll back judicial review … must be de rigueur.” So, it actually is very much in the mindset of our policy-makers.

It may just be the inbuilt mindset of draftsmen to create powers as broadly as possible and see if anyone objects.

There is said to be nothing which cannot be done by Act of Parliament – save for limiting the power of Parliament itself. This was once explained on the ground that everyone was represented in Parliament (even if they had no vote) and was therefore stopped from objecting to its acts. That was a principle of law, resting on fiction. Now it is simply a matter of dogma. The sovereignty of Parliament is somehow a given: the indisputable basis of the British constitution. If it is indeed a fact of life, rather than a principle of law, it leaves no room for judicial control, since judges cannot alter facts. But it gives Parliament the power to overturn judicial decisions and direct the courts what they can and cannot decide, even in relation to the constitution itself. An extreme manifestation of this power is the Dissolution and Calling of Parliament Act 2022. Following the repeal of the Fixed-Term Parliament Act 2011, the royal prerogative of dissolution had to be reinstated. Stung by the decision of the Supreme Court in Miller II, the Government decided to introduce a new prerogative immunised against judicial review. Section 3 provides that no court or tribunal may question (a) the exercise or purported exercise of the prerogative powers of dissolution and summoning of parliaments, (b) any decision or purported decision relating to those powers, or (c) the limits or extent of those powers. This calculatedly judge-proof clause creates the most absolute royal prerogative ever devised, far beyond anything the common law would have tolerated, and is a most dangerous precedent. What if a defeated government, upon a dissolution, instructed the Lord Chancellor that no writs of summons for a new Parliament should be issued for a year or two: could that really not be the subject of judicial review? No doubt there are informal checks and balances at present to prevent such things happening, but they might not operate in the event of an authoritarian regime.

In the light of all this and contemplating a political climate in which a future government might actually want (like James I and Charles I) to rule as far as possible without accountability to Parliament or the courts, I would like to point to a historical analogy. In the 16th and 17th centuries the principal constitutional concern was not the sovereignty of Parliament but the prerogatives of the monarch. Many of the prerogatives were absolute, as some still are. They could at that time be used to establish tribunals with extensive jurisdiction, to privatise government for profit, to raise money short of direct taxation – for instance, by creating monopolies or laying impositions (what the Americans call ‘tariffs’) – perhaps even to govern by executive orders (called proclamations). The judges of the Elizabethan period faced these powers head-on and brought them under judicial control through the medium of habeas corpus. It was one of the greatest achievements of the early-modern common law and helped ultimately to save us from a root-and-branch revolution of the French kind. The foremost champion of the rule of law was Sir Edward Coke, first as Attorney General under Elizabeth I and James I and then as Lord Chief Justice. He held that prerogative courts and prerogative acts could be reviewed by the King’s Bench, principally by means of habeas corpus and mandamus. Until quite recently we still referred to these remedies as ‘prerogative writs’. That might seem ironic, since they were designed mainly to curtail and regulate prerogative powers; but Coke managed – even while still a law officer – to present the writs as the means whereby the king exercised his ultimate prerogative (and sworn duty) of doing justice, through the mediation of his judges.

What, then, of Parliament? Coke, a former Speaker of the Commons, subscribed to the basic concept that Parliament was “transcendent and absolute” (his words), but he did not regard that as altogether precluding judicial review. In his well-known report of Dr Bonham’s Case (1610) he went so far as to declare that “when an Act of Parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such Act to be void.” In all our law books this is treated as an unacceptable statement of English law. None of the other judges in the case even addressed the point; it was either an obiter dictum or an afterthought when Coke wrote it up. Lord Chancellor Ellesmere objected strenuously: “When … the king, the lords and the commons have spent their labours in making a law, then shall three judges on the bench destroy and frustrate all their points because the Act agreeth not in their particular sense with common right and reason?” The answer (then and now) must be, ‘Of course not’. Yet it is worth looking into the logic underlying Coke’s characteristically robust language. He was not the first judge to treat statutes contrary to reason as void. To us, ‘void’ is a strong word which imports a lack of legal validity. But its primary meaning was emptiness, an absence of content; and in this context it meant an absence of content to which legal effect could or should be given.

It had been stated in Plowden’s reports in 1554 that a statute could even be read contrary to its wording when it was against all reason. Statutes had to be interpreted according to the presumed intention of the makers, and one could not presume that members of Parliament were so stupid as to intend something absurd. It does not in theory impugn the validity of an Act of Parliament to say that it lacks any meaning which can be given sensible effect. It is just ineffective, in the same way that a statute which has not yet been brought into force is already a statute but wholly ineffective. Likewise, if two provisions in the same Act directly contradict each other, at least one of them must be disregarded: it is, in that sense, void. Coke thought the same applied to obvious errors. He gave the example of a statute which carelessly provided a punishment for everyone who did not offend against a statute; that, he said, would be against reason and therefore void.

The judges of the Elizabethan period faced these powers head-on and brought them under judicial control through the medium of habeas corpus.

Moreover, statutes can only change the law, not the facts of life. Coke said in 1597 that Parliament could do anything except make a woman a man, or an infant a man, though it could make an infant of full age. Parliament did indeed alter the age of majority as from 1970, making infants of 18 to 20 instantly of full age; and it has now allowed women to become men in some respects. But Parliament still cannot alter a person’s age or chromosomes; it can only enact that these do not determine adulthood or gender, for legal purposes, in the ways they did formerly. That was Coke’s point. No amount of deeming can alter facts, making the false true; and a provision which purports to do so is, in that sense, void.

The difficult question is whether the notion of ineffectiveness by reason of factual or linguistic impossibility or absurdity can be extended to legal absurdity or incongruity. Coke thought it could. In Bonham’s Case (No. 1) (1607), which I discovered recently in a manuscript, he admitted that Parliament could by express language confer validity on an unlawful royal charter which encroached upon the liberty of the subject; however, “if, for want of sufficient foresight and penning, an Act cannot be put into execution without manifest wrong and injustice, then such imperfect Act is in judgment of the law void and of no effect.” He was thinking in that case of a power to fine without specifying any procedure to ensure natural justice. His proposition can be reconciled with parliamentary democracy under the head of interpretation. Indeed, there are recent judicial opinions pointing in the same direction, though they do not now use the word ‘void’.

In taking on the king’s prerogative, Coke relied on legal history. His legal history was not the quite the same as historian’s history. It was an intellectual interpretation of the past. He held that the law must have preceded monarchy because the law determines who shall be king and what powers he has. Whether this is historically true is neither here nor there. Logically there could be de facto kingship before the law defined its limits. But it is equally logical to argue that any legal notion of constitutional monarchy must be predicated on the prior existence of a concept of law which can define the extent of regal power. In the memorable words of Chief Baron Fray in 1441, “the law is the greatest inheritance which the king has … for without the law there would be no inheritance, and no king.” It was on this basis that Magna Carta was accepted as a declaration of the common law. If the charter had simply been an ex gratia grant of something the people did not enjoy previously, that tended to prove that there was essentially an absolute monarchy which a bad king could resume. Instead, as a declaration of fundamental common law, it justified the development of judicial review of the prerogative three or four centuries later. Of course, no one had thought of habeas corpus in 1215; but it was a practicable way of giving legal effect to a statute which did not specify a remedy. And history showed that king after king had formally confirmed the great charter. There was an inveterate understanding that the king – the government – was under the law.

The question I would pose, without answering, is whether the arguments used to justify judicial review of the king’s executive prerogative could ever be deployed to justify judicial review of the king’s parliamentary prerogative. The executive prerogative may once have been seen as an unalterable fact – that residual part of the king’s de facto power on which the law did not trespass – but lawyers such as Coke turned it into a legal concept. “The king”, wrote Coke in 1610, “has no prerogative but that which the law…allows him”. Could this also be true of the king’s prerogative to legislate through Parliament? If the supremacy of Parliament could be seen as deriving from the common law, rather than as an incontrovertible fact, it would not be outrageous to suggest that there are certain vires determined by the law. That must at least be true of interpretation. There is no way of asking Parliament what it meant, and even should it decide to clarify its meaning by further legislation this would still need interpreting by the courts. Legislation is unavoidably mediated through the courts, for (as was said in 1589) “whereas judges have no voices in making of laws, in expounding of laws no man hath voice but they”. And since the intention of Parliament is obviously a fiction anyway, it is necessary for the common law to determine how it is to be ascertained in practice, including the use of presumptions derived from legal and constitutional traditions of which Parliament is deemed to be aware. Of course, it would be unthinkable for a few judges to undo the policy decisions of members of Parliament acting in accordance with their democratic authority, and there are legitimate concerns about judicial activism when the courts seem to take on political questions. We even hear complaints that judicial review, like war, has become a way of pursuing politics by other means. But there might be cases where some aspects of an ill-considered statute were so inconsistent with basic concepts of justice that the great powers conferred by the electorate on Parliament had been exceeded. It would be better if such things were tackled within Parliament; but often there seems not to be time.

A step has already been taken in relation to Henry VIII clauses. Orders made under such clauses effectively result in changes to the statute-book, even though laying the order before Parliament is little more than a ceremony. When a minister exercises a power to amend a statute, the amendment becomes in a sense part of the Act itself, and is so treated in online versions (albeit with a note of explanation): it would be confusing if it were not so. Yet there is no amendment of the parliament roll containing the original Act. The amendment is contained in a statutory instrument, and the Court of Appeal last year confirmed that such an instrument is subject to judicial review, so that the amendment may be struck down as ultra vires the enabling power. This is not a newfound judicial tactic depending on the supposed entrenchment of the rule of law in the Constitutional Reform Act. The presumptions deployed in interpretation would be similar to those suggested by Coke, and the effect is as if the amendment had not been made. In that case, therefore, we have judicial review of an Act of Parliament – a power to declare a purported statute void.

The courts are said to be prevented from doing the same with primary legislation because (a) what Parliament does cannot be ultra vires if there are no vires, and (b) it would impeach proceedings in Parliament and therefore infringe parliamentary privilege. But are there no common-law limitations? Suppose Parliament enacted that a named person should be executed without trial, that this should not be questioned in any court of law, and that the Human Rights Act should not apply. Would the courts be powerless to modify the operation of such a statute? Most authorities would say, ‘Yes’. That was also Coke’s view, as a matter of fact: commenting on the fate of Thomas Cromwell in 1540, he wrote that the attainder and execution of an individual without trial was lawful if expressly authorised by Act of Parliament, but it was nevertheless wrong and he felt sure it would never happen again.

If a statute truly appears to be the will of the people, embodied in unambiguous primary legislation, appeal to a higher law is thus said to be impossible. On this footing, the courts could not even review a statute ordering the massacre of all infants under the age of two. Perhaps, as with Cromwell’s execution, we can reassure ourselves that that would never happen in England. But only time will tell if there is somewhere a line which cannot be crossed. It might, of course, mean revolution. If the king refused the royal assent, he might well be deposed, and if judges declared it unlawful a way might be found to remove them – which is what happened to Coke. The only comfort is that a written constitution would provide no better protection.

Only time will tell if there is somewhere a line which cannot be crossed.

That alarming prospect brings me to my final reflections. Under a constitutional monarchy, the law is enforced by the forces of law and order which function in the king’s name. The principal threat to this order comes from foreign enemies. Domestic law obviously cannot protect against the devastating range of powers possessed by today’s potential enemies (or even by supposed friends). But extra-legal danger is also lurking on the domestic front. No legislation or written constitution can prevent a revolution, if that is what the people want. I am told that the King of Bhutan a few years ago used the absolute power of his hereditary monarchy to force his people – somewhat against their inclinations – to accept a constitutional monarchy. It could equally work the other way round. If the populace thought life would be better under a charismatic authoritarian leader who had the freedom to govern without legal restraints in order to get things done, they could reach a democratic decision to dispense with the legal system as we know it. Their chosen government would govern by executive decree, constrain the courts and the forces of justice to do its will, employ armed agents in masks to enforce its policies outside the law, disseminate egregious falsities and overpower the news media so as to obliterate any concept of truth, and grant itself exemption from legal consequences for its conduct: it is a familiar pattern which we have witnessed elsewhere. There is no need to go back to King John: the lessons are in the present.

…they could reach a democratic decision to dispense with the legal system as we know it.

The only way to forestall such an outcome is by creating a general awareness, through education, that if constitutional government is weighed in the balance against despotism, the former – even if creaky and comparatively inefficient – is the more beneficial option for everyone except the power-hungry and the profiteers. We used to take this for granted; but it is not so clear that it is still part of our national ethos. It is a simple enough message to put across. Authoritarian government is irreversible. Once people realise that the Utopia they envisaged is not going to materialise, or discover that the successors in office to the demagogue they fell for are less attractive (or even positively evil), it is always too late. There is no easy means of return. Despotism would remove any protections people have for their assets, their employment, their family life and their personal freedom. The turning point might come when social changes result in a substantial part of the electorate having no assets, no employment and no family life worth protecting. One can only hope that, if we find ourselves in that dangerous situation, some memory of what our judges, lawyers and parliamentarians strove for in the past (and why) will be remembered with sufficient clarity to draw us back from the brink. It is a lesson more effectively absorbed by an acquaintance with the past than from mere assertion, which might be waved aside as politically motivated. The country has been through some rocky times over the centuries, but the rule of law has always triumphed so far. That may be ‘Whiggish history’; but it is a story worth knowing.

Professor Sir John Baker KC LLD FBA
Downing Professor Emeritus of the Laws of England
Honorary Bencher

This is an extract from a presidential address to the Bentham Club at University College London on the 200th anniversary of the foundation of the College. The full lecture, with supporting footnotes, may be found on the College website.