David Feldman: ‘England’ as a Legal and Constitutional Notion

David FeldmanProposed changes to devolution arrangements in the UK have given rise to the idea of restricting parliamentary votes on ‘English laws’ to ‘English’ M.P.s (‘English votes for English laws’, or EVEL). But the legal and constitutional meanings of ‘English’ are unclear. At an artificial level, in relation to voting in the House of Commons, it is clear enough: the ‘English’ votes in question are those of M.P.s representing constituencies in England (rather than Scotland, Wales, or Northern Ireland). The argument for limiting parliamentary voting in this way is that the Scottish Parliament (made up of M.S.P.s, not Scottish M.P.s, we should note) has the opportunity to legislate without reference to the Westminster Parliament (which includes representatives of English, Welsh and Northern Ireland constituencies) on matters which the Scotland Act 1998 does not reserve to the Westminster Parliament.

This line of reasoning implies that the Westminster Parliament operates legislatively in two different capacities. In one capacity, it is the Parliament of the United Kingdom. In another capacity, it is an English Parliament, akin to the Scottish Parliament, the Northern Ireland Legislative Assembly, and the National Assembly for Wales, save that the legislative competence of the English Parliament at Westminster is not limited, except territorially. That duality is the implication of excluding representatives of some United Kingdom constituencies, selected by reference to territorial criteria, from the capacity to vote on matters affecting other territories in the United Kingdom. (Would M.P.s representing constituencies in Wales and Northern Ireland also be excluded from voting on English matters? Would only those M.P.s representing Scottish constituencies at Westminster be able to vote on matters which affect only Scotland, and similarly – mutatis mutandis – M.P.s representing constituencies in Northern Ireland and Wales respectively?)

The constitutional problem this poses is that the United Kingdom Parliament has previously been thought to be exactly that. Even when legislating exclusively for Scotland or for Northern Ireland, which have maintained legal orders separate from each other and from that of England and Wales, the Westminster Parliament has been seen as an institution of the United Kingdom, not of a particular part of it. Its great authority stems from its position as the hierarchically superior legislature and political institution of the whole nation, rather than a regional body. For hundreds of years it has been the ‘Grand Inquest of the Nation’, where ‘the Nation’ is the whole of it as constituted from time to time. Losing that character would weaken its authority.

Implicit in the EVEL reasoning, there is also an acceptance that the legislative competence of the Westminster Parliament is, or should be, limited territorially, not only at the borders of the United Kingdom but also within it. The reasoning seems to accept that devolution to Scotland, and presumably also to Northern Ireland and Wales, has imposed constitutional limits on the legislative competence of the Westminster Parliament, whether or not those limits are judicially cognisable. Even within England, the agreement for devolution to Manchester (and potentially to other cities and regions) presents problems. If the Westminster Parliament were to sit as the English Parliament, would M.P.s representing Manchester constituencies be allowed to vote on matters affecting the rest of England?

These ideas run counter to the idea that there is, in any sense, a United Kingdom. They also prompt a reflection on the place of England and Englishness in the political economy and constitutional history of the British Islands. What is ‘England’, and what unites the ‘United Kingdom’? What now differentiates ‘England’ from ‘Wales’, when for half a millennium ‘England and Wales’ has been treated as a single juristic entity?

The next four paragraphs skate superficially and tendentiously over about 1500 years. (Historians and readers uninterested in history may want to skip them.) The idea of an English (i.e. Anglo-Saxon) people on both sides of the English Channel developed in the sixth century, when in ‘England’ different tribes were driving the Britons towards the areas of Cornwall, Wales, and the north. Between the sixth and ninth centuries, different Anglo-Saxon kingdoms in England competed, grew and diminished in power. Northumbria dominated in the seventh century, and Mercia in the eighth. In the ninth century, Danish attacks on Northumbria left Wessex as the dominant Anglo-Saxon kingdom. Other kings generally paid homage to Wessex, and individual kings claimed to be king of Britain (whatever that meant at the time). The Danish kingdom in the east of England became dominant in the early eleventh century. The laws and systems of government of these different kingdoms differed, although they were converging to a degree by the tenth century. The invasion by William, Duke of Normandy (of Danish descent) in the eleventh century ushered in a period when the English were subjugated, their systems of government replaced, their wealth plundered, and their aristocracy devalued. A European aristocracy and European interests controlled England and the idea of national cohesion was only slowly reasserted during the thirteenth century and afterwards. Norman governmental control established England as an administrative unit, and was gradually extended to Wales, which was eventually incorporated formally into the English legal order in about 1535.

As a realm, England was always European from the conversion of Anglo-Saxon monarchs to Christianity, at which point they became, to a varying degree, vassals of the Pope. The Norman invasion subsumed England rulers further into a Europe-wide system of feudal obligations and rights. The realm (as distinct from the subjugated people) did not develop a sense of Englishness again, of a community between the rulers and the ruled of England, until the thirteenth century.

One can see the height of ‘Englishness’, constitutionally, legally and perhaps culturally, being reached in the sixteenth century after the break from the Roman Catholic Church. The union of England and Scotland in the early eighteenth century severed the close link between Englishness and the state; Great Britain was now the state, and the English (and Welsh) part of it was no longer the whole. The break between the identity of the English (and Welsh) people and the identity of the state grew when Ireland became part of the state in 1800. The centrality of Englishness to the identity of the state was further diluted by the accumulation of a large Empire; an imperial state loses its character progressively as it becomes more successful. It was troops and supplies from India, Australia, New Zealand, South Africa, Canada, and other parts of the Empire which enabled the United Kingdom to survive the First and Second World Wars.

The distinctiveness of the various constituent elements of the United Kingdom reasserted itself as the Empire fragmented. The two processes – the loss of Empire and growing self-awareness of peoples at home – were assisted by the growing importance of the idea of the ‘nation state’ in the twentieth century. The key, twin ideas were that a state should constitute a nation (or people) and that each people (or nation) should have a state of its own. The era of peoples’ right to self-determination led to a particular focus on peoples which form minorities within states. It was assumed, perhaps, that majorities dominated ‘their’ states. In the United Kingdom, it has been the minority peoples – Scots, Welsh, and in Northern Ireland Roman Catholic nationalists – which have benefited from this. The English have been left out. They lost their nation state (or its equivalent) to the Danes; the Normans and Angevins tried to conquer the Welsh, Irish and Scots, with mixed success, but showed no interest in building a nation state; the English element in the state strengthened, particularly from the 1530s, but was diluted with the unions with Scotland and Ireland. The English (meaning now the people who happen to inhabit England) are now in a massive majority within the United Kingdom, but dominance left no room for forging an identity as a people or as a territorially bounded community with a distinctive identity.

From a constitutional standpoint, the common law of England (incorporating Wales) was a powerful influence on the colonies, but England’s Parliament lost its English territorial focus when it incorporated Wales and later became the Parliament of Great Britain from 1707 and of the United Kingdom from 1800. The English people lost their historical distinctiveness as their history merged with those of the Welsh, Scots, Irish, and the peoples of the Empire. The peoples of the United Kingdom have pragmatically adjusted constitutional arrangements on the basis of their perceived interests or the balance of military and economic power from time to time, often justifying them by harping back to idealised ancient constitutions which perhaps never existed.

That the resulting structures emerged piecemeal, with little attention to long-term planning or principled coherence, does not make them less valuable. A structure resembling a three-dimensional patchwork quilt, to which repairs are frequently needed but which by and large works adequately, is preferable to a beautifully designed, symmetrically principled structure which fails under pressure. But as constitutional lawyers and constitution-makers we should recognise the following implications of that.

  • There is nothing wrong with inventing England as a constitutional and legal unit, as long as we recognise that that is what we are doing. ‘England’, distinct from Wales, Scotland or Northern Ireland, which new institutional arrangements will accommodate, will be a new entity. Appeals to a noble past may legitimise it, but will not help in designing it.
  • There is nothing wrong with making major constitutional changes for politically, economically, religiously or militarily pragmatic reasons rather than principled ones, as long as we recognise that that is what we are doing. The ultimate question for constitution-rebuilders must be, ‘Will it work?’ Principles are good ways of justifying arrangements in the abstract; they do not guarantee that they will work.
  • When impressed by an idea for change, we too easily ignore the costs and overrate the benefit of dealing with the immediate question. We must ask whether the political and constitutional costs, including opportunity costs, to the United Kingdom will be outweighed by the benefits in the medium to long term of inventing England as a legal and constitutional entity.

David Feldman is Rouse Ball Professor of English Law, University of Cambridge, and a Fellow of Downing College, Cambridge.

(Suggested citation: D. Feldman, ‘‘England’ as a Legal and Constitutional Notion’ UK Const. L. Blog (14th Oct 2015)(available at http://ukconstitutionallaw.org))