Abstract and Keywords
This article reviews the nature of the British constitution, exploring its unusual ‘unwritten’ form, and presenting an account of its main substantive components. It also addresses a range of challenges which the contemporary constitution faces and argues throughout that the constitution is currently undergoing a profound transformation from being a largely parliamentary or political constitution to being a mainly legal or juridical order in which the courts will play a markedly expanded role, unprecedented in British constitutional history. It specifically outlines ‘Europe’ and New Labour's constitutional reforms. The present time is one of rapid and in many cases significant constitutional change in Britain, change which in some instances the Blair/Brown New Labour governments either caused or contributed to but which in other instances stems from different sources not altogether within the government's control.
This chapter outlines the nature of the British constitution, explaining its unusual ‘unwritten’ form (14.2), and giving an account of its main substantive components (14.3). It considers a range of challenges which the contemporary constitution faces (14.4) and argues throughout that the constitution is currently undergoing a profound transformation from being a largely parliamentary or political constitution to being a mainly legal or juridical order in which the courts will play a markedly expanded role, unprecedented in British constitutional history.
14.2 Questions of Form
14.2.1 The Unwritten Constitution and Its Consequences
The British constitution is unusual. Almost every country in the world has a written constitution: a single, codified constitutional text that is superior both to government and to all other law. The United Kingdom is one of only a handful of countries that are commonly said not to have a written constitution. Of the others, Israel has a series of Basic Laws which have a quasi‐constitutional status and a committee of its Knesset (legislative assembly) is currently working on a draft constitution; and New Zealand has a Constitution Act (1986) which outlines the functions of the main institutions (p. 240) of state. The United Kingdom has no equivalent of either Israel's Basic Laws or New Zealand's Constitution Act.
It does, however, have several sources (mainly Acts of Parliament) which may be viewed as being fundamental to the constitution. These range from the thirteenth‐ century compact between King John and his Barons known as Magna Carta, the first great attempt to limit the powers of the monarchy through the force of law (Tomkins 2003: 40–1; Holt 1992) to the Human Rights Act 1998, branded as Britain's ‘bill of rights’, incorporating most of the European Convention on Human Rights into domestic UK law. The Bill of Rights 1689 (on the relationship between the Crown and the Houses of Parliament), the Act of Settlement 1701 (ditto), the various Acts of Union (with Scotland in 1707, with Ireland in 1800), the Parliament Act 1911 (on the relationship between the two Houses of Parliament—Commons and Lords), the European Communities Act 1972 (on the roles played by European Union law within the UK), and the devolution legislation (most especially, perhaps, the Scotland Act 1998) may likewise be branded as elemental to the constitution.
There is, however, from a formal point of view, nothing special about any of these Acts of Parliament. As the law currently stands, parliament could amend or repeal any provision of any of these Acts at any time and for any reason just as it may amend or repeal any provision of legislation dealing with any other, non‐constitutional subject. This is an aspect of what is generally (if somewhat misleadingly) known as the doctrine of the sovereignty of parliament. As it was classically expressed by A. V. Dicey (Dicey 1885: 40), parliament may ‘make or unmake any law whatever’. At least from a legal point of view there is nothing entrenched about the British constitution. This, it may be thought, is one of the principal consequences of not having a binding constitutional text—of there being no written constitution (Finer, Bogdanor, and Rudden 1995: 40). Of course, a written constitution would not necessarily have to be formally entrenched—it is perfectly possible to conceive of such a constitution containing a provision to the effect that ‘Any provision of this Constitution may be changed by simple majority vote in the House of Representatives’ or even ‘Any provision of this Constitution may be changed by the Supreme Court’. Most of the world's written constitutions, however, do not contain provisions such as these, at any rate not expressly, and are presented as if they enjoy at least some degree of entrenchment.
That the British constitution is not legally entrenched does not mean that it is particularly fluid or even flexible in practice. Indeed, there is much about the constitutional order that has remained largely unchanged for decades, even centuries, as the dates of the older Acts of Parliament cited above testify. The fundamental relationship between the Crown and parliament—the most divisive secular issue of all British politics in the seventeenth century, let us not forget—has remained constant since the early eighteenth century (this is not the same as the Crown's relationship with the government of the day, which has changed significantly over the last 300 years, as executive power has shifted from the monarchy to ministers). The relationship between the House of Lords and the House of Commons has remained more or less (p. 241) stable since 1911 (Walters 2003) and does not appear to have been much altered by the partial reform to the composition of the upper house effected by the House of Lords Act 1999, even if the House of Lords has used the reforms of 1999 as a basis for becoming more assertive as a scrutineer of the government's legislative proposals (Hazell 2007: 10). That Britain has a Cabinet system of government with a Prime Minister at its head, and which is responsible to parliament, has been true since at least the time of Pitt the Younger in the 1780s and perhaps since Walpole in the 1720s, even if the nature of the Cabinet and its relationship with the Prime Minister have changed since the eighteenth century (Jennings 1936; Birch 1964; Mackintosh 1977). On the other hand, recent years have witnessed a flurry of constitutional change, as the Labour governments of Tony Blair and Gordon Brown have made constitutional reform a centrepiece of their policy (British constitutionalism and New Labour is discussed further, below).
Cabinet government, the office of Prime Minister, and the practice of ministerial responsibility to parliament are features of the British constitution that owe little or nothing to law, stricto sensu. They are creatures of what we call constitutional convention (Marshall 1984). This, it may be thought, is a second consequence of the absence of a written constitution: namely, that the constitutional order relies as heavily on non‐legal or conventional sources as it does on formal law. On closer examination, however, it becomes clear that written constitutions only rarely approach being complete codes and that many countries with written constitutions rely on conventions or constitutional practice to supplement the formal text (Barendt 1998: 40).
Constitutional lawyers are generally happy to recognize that constitutional conventions are as binding on constitutional actors as are constitutional laws. The difference lies not in the mandatory nature of the rules, but in the identity of the enforcer. Laws are enforced by courts, whereas conventions are enforced politically. Usually, this means through parliament. Thus, if (in breach of convention) the monarch appointed as Prime Minister someone other than the leader of the political party with majority support in the House of Commons, no one could sue the monarch in the courts—the monarch has broken no law. But, even though it is not illegal, such behaviour would be unconstitutional and there would surely be a political reaction. What, precisely, that reaction would consist of is impossible to predict, but it could plausibly range from a mere expression of parliamentary disquiet to legislation abolishing the monarchy altogether, with an array of intermediate options.
Other conventions are routinely enforced by parliament. It is a constitutional convention, for example, that ministers are collectively and individually responsible to parliament for government policy. These conventions, among other matters, require ministers to account to parliament for the policies, decisions, and actions of their departments. Any failure so to account will be addressed by parliament. Sometimes the sanction will be that the minister is called to give a full account, or to correct an inadvertent error in an earlier account, or to apologize for a mistake. On other occasions more serious consequences follow from a breach of the conventions, the (p. 242) ultimate punishment being a forced resignation (Woodhouse 1994; Flinders 2002; Tomkins 2003: ch 5).
14.2.2 From the Political to the Legal Constitution?
That core elements of the British constitution are policed by political institutions such as parliament rather than by legal institutions such as the courts is one of the most significant facets of British constitutionalism (Griffith 1979; Tomkins 2005). In recent years it has become widely disliked, as numerous constitutional commentators have become exasperated by what they see as the constitution being subjected to the vagaries—and oftentimes the self‐serving vagaries—of party politics (Mount 1992; Barnett 1997; Weir and Beetham 1999). The 1990s were notorious, for example, for ministers in John Major's Cabinet seeking to rewrite the rules of ministerial responsibility in their favour so as to avoid having to take responsibility for their mistakes or for their failures to keep parliament properly informed of government policy (the full story is told in Tomkins 1998: ch. 1). This led several commentators to go so far as to take the view that ‘[t]he doctrine of ministerial responsibility has been significantly weakened over the last ten years or so, so that it can no longer be said … that it is a fundamental doctrine of the constitution’ (Jowell and Oliver 2000: viii; see also Barendt 1998: 116). However, this was a premature obituary and, since 1997, the practice of ministerial responsibility has recovered considerably (Woodhouse 2002; Tomkins 2003: ch. 5).
What may be overlooked in the rush to condemn the British constitution's reliance on political methods of enforcement is that judicial methods of enforcement are likewise subject to vagaries. In the British context, for example, a once vibrant administrative law of judicial review fell almost into desuetude for a prolonged period in the mid‐twentieth century, only to be revived slowly and for the most part uncertainly by a cadre of enthusiastic judges in the 1960s and 1980s. Only since the mid‐1990s has judicial review really come to the fore of British constitutionalism (Jowell 2003). In the United States, to take a second example, the Supreme Court rather suddenly relied on the commerce clause of the US constitution to strike down Congressional legislation in US v Lopez 514 US 549 (1995) after not having previously used that clause for this purpose since 1937. After Lopez, the Court's new‐found interest in federalism became one the hallmarks of the Rehnquist Court's constitutional jurisprudence—not something that could have been said of the Supreme Court at any time in the previous half century (Young 2004). Turning from political and parliamentary means of accountability and scrutiny to legal and judicial means is less likely to secure the results of consistent ‘constitutional justice’ (see Allan 2001) than its advocates tend to assume (Poole 2002; Goldsworthy 2003; Tomkins 2005: ch. 1).
Nonetheless, a move away from relying principally on political institutions and methods of accountability, towards relying more strongly on legal institutions and methods of accountability, is one of the hallmarks of the British constitutional (p. 243) experience in the period since the early 1990s (Tomkins 2003: ch. 1). This move can be seen both in the behaviour of constitutional actors (especially, but not only, the courts), as well as in the arguments of constitutional commentators (e.g. Barendt 1998; Allan 2001; Oliver 2003; Dyzenhaus 2006). This move, from a privileging of political constitutionalism in Britain to a privileging of legal constitutionalism, will be a central theme of this chapter. Before we go any further it may be as well to summarize what is meant by it (with the proviso that what follows in the remainder of this paragraph will be expanded upon as this chapter proceeds). The move from political to legal constitutionalism involves, and may be taken as shorthand for, four related developments:
• A denial of the potency of and a loss of faith in political accountability and ministerial responsibility (see e.g. Jowell and Oliver 2000).
• A strengthening of the rule of law and a furthering of the constitutional roles of the courts. This development manifests itself in a variety of ways, such as: extending the reach of the rule of law to embrace formerly political and nonjusticiable issues (as in R v Home Secretary, ex parte Fire Brigades Union  2 AC 513; see Tomkins 2003: ch. 1; and A v Home Secretary  2 AC 68; see Turpin and Tomkins 2007: ch. 11); creating new species of common law constitutional rights (as inR v Home Secretary, exparte Leech  QB 198 and R v Home Secretary, exparte Simms  2 AC 115; see Tomkins 2003: ch. 6); enacting new constitutional rights through legislation (as in the Human Rights Act 1998, on which see below).
• A doubting of the continued appropriateness of the sovereignty of parliament (as in Jackson v Attorney General  1 AC 262, on which see below).
• Leading to a general sense that there are few clear limits to the constitutional roles of the courts (Barak 2006).
One of the consequences of the move from political to legal constitutionalism is that the unusual nature of the British constitution, which formerly distinguished it from the constitutional norm both elsewhere in the Commonwealth and in Europe, is being diluted. The advance of the legal constitution is far from unique to Britain: indeed, in many respects, Britain is playing catch‐up, as it takes inspiration from the US Supreme Court, the Supreme Court of Canada, the European Court of Justice, and the European Court of Human Rights, among others (Beatty 2004). Recent scholarship in comparative constitutional law shows the considerable extent to which the globalization of juridical norms in public law is leading constitutional and supreme courts across the world to talk more and more with each other, to cite each other's decisions as authorities, and often even to adopt remarkably similar modes of reasoning and solutions to the disputes that come before them (Beatty 2004; Anderson 2005; Choudhry 2006; although cf. Lasser 2004; Goldsworthy 2006). The juridification of constitutionalism in Britain is an experience it has in common with countries as diverse as Canada, South Africa, Israel, Poland, Hungary, and New Zealand, among many others (Hirschl 2004).
(p. 244) 14.3 Constitutional Content
Defining the constitution broadly, we might say that it includes all the rules, conventions, and practices that describe or regulate the organisation, powers, and operation of government and the relations between private persons and public authorities (cf. Turpin and Tomkins 2007: 4). Adopting such a definition, what are the core components of the British constitution? The following six features of the constitution may be regarded as central: (a) that the United Kingdom is a constitutional monarchy; (b) the doctrine of the sovereignty of parliament; (c) the doctrine of the rule of law and its recently expanded consequences; (d) the uncertain status of the separation of powers; (e) the doctrine of responsible government; and (f) the changing relationship between central and devolved (regional) government. Each of these will now be examined in turn.
14.3.1 Constitutional Monarchy
Several core features of the British constitution are very, very old. In the previous section reference was made to Magna Carta and to the Bill of Rights of 1689, for example. The principal concern of both these instruments, and of the political turmoil that gave birth to them, was how the powers of the Crown could be substantively limited and subjected to constitutional account. Powers previously possessed and, it was thought, abused by the Crown were either taken away altogether or subjected to parliamentary oversight. Thus, Magna Carta sought to guarantee, in a provision that still remains law, that ‘no freeman shall be taken or imprisoned … or exiled … but by … the law of the land’, as it limited the powers of the Crown to raise various forms of revenue through taxation and other means. Likewise, the Bill of Rights outlawed what it called ‘the pretended power of suspending the laws’ and ‘the pretended power of dispensing with the laws’ as they had been exercised by James II. To this day it is to the Bill of Rights that we owe the fact that the government may levy no tax or charge on the British people other than with parliamentary assent.
Today it is not the monarch him‐ or herself whose powers the constitution is principally concerned to limit: it is the powers derived from the Crown and exercised by government ministers which are the focus of attention. Herein lies the contemporary constitutional significance of Britain being a monarchy: not in the powers and influence of the Queen and her family, considerable though they remain (Bogdanor 1995), but in the powers exercised in the name of, and on behalf of, the Crown by the government (Brazier 1997; Daintith and Page 1999). While it is clearly the case that ministers have at their disposal a vast array of statutory powers—powers conferred on the government by parliament in legislation—they continue to enjoy, in addition, a range of prerogative powers, powers which parliament has not conferred through the legislative process, but which are derived directly from the Crown. These include the power to declare war, the power to deploy the armed forces, the power to make treaties, powers concerned with the conduct of diplomacy, powers to appoint peers (p. 245) and to confer honours, and powers concerned with the organization of the civil service, as well as a range of others.
Recent years have witnessed extensive parliamentary disquiet about the range and scope of these powers and about the limited extent to which their exercise has been subjected to adequate parliamentary oversight. In the early 1990s the focal point was the government's treaty‐making power, a power which became particularly controversial in the context of the Maastricht Treaty on European Union, divisions over which consumed the Conservative Party for much of the decade (Rawlings 1994). The government's prerogative power to claim ‘public interest immunity’, a power that enables the government to withhold evidence from civil and criminal trials where, in the government's view, the public interest so requires, was equally controversial in the context of covering up the extent to which British arms manufacturers had, with the support of the security and secret intelligence services, traded with Saddam Hussein's Iraq (Tomkins 1998: ch. 5). More recently it has been around the government's power to wage war that the deepest parliamentary concerns have crystallized—as a result, of course, of the controversies surrounding the Iraq War (House of Lords Constitution Committee 2006).
Within a week of becoming Prime Minister, Gordon Brown in July 2007 published a Green Paper on constitutional reform, The Governance of Britain (Cm 7170), a highlight of which was an immediate undertaking to qualify a number of the government's prerogative powers. Thus, the power to deploy the armed forces abroad will be subject to a new parliamentary resolution (to the effect that a positive parliamentary vote will normally be required before troops can be sent into combat overseas); the power to ratify treaties will be placed on a statutory footing; the power to recommend to the Queen that parliament be dissolved will be subject to a new constitutional convention (to the effect that a positive vote in the House of Commons will normally be required before such a recommendation may be made); and the power to request that the Speaker should recall the House of Commons during a recess, formerly unique to the government, will be shared with backbench MPs. As such, they are but the latest chapter in what is Britain's oldest constitutional story: namely, the ongoing struggle to subject the Crown and its government to constitutional account through parliament (Tomkins 2003: ch. 2).
None of this means that Britain will cease to be a constitutional monarchy. The Governance of Britain stressed that the government had no intention to reform or revise any of the prerogative powers which continue to be exercised by the monarch herself. But, if carried out, the proposed reforms will strengthen the forces of parliamentary constitutionalism as they seek to scrutinize and to hold to account the powers that the government of the day continues to derive from the Crown.
14.3.2 The Sovereignty of Parliament
Most of the time British government is characterized not in terms of conflict between Crown and parliament but as cooperation between them. It is when cooperation ceases that ordinary government becomes impossible, as Charles I found in 1642 and (p. 246) as James II found in 1688. What the events of the 1640s and 1680s reveal is that when conflict between Crown and parliament replaces cooperation, parliament has the constitutional strength to win the argument: since 1689 (indeed, since 1660) we have, for the most part, experienced government by the Crown and its ministers on parliamentary terms, and not parliamentary government on the Crown's terms (Tomkins 2005). While the Crown has on several occasions and through various means tried to subvert the order established in 1642, 1660, and 1688–9, it has not (yet?) been successful in the long term—the eighteenth‐century corruption of placemen and pensions, for example, was not a prominent feature by the time Walter Bagehot penned the most famous celebration of Britain's parliamentary constitution in the 1860s (Bagehot 1867). The much more recent rising up of Labour backbenchers against numerous of the Blair government's policies in the 2001–5 parliament is, perhaps, another example of parliament refusing to be cowed by the Crown's ministers (Cowley 2005).
As regards cooperation between Crown and parliament, its most important instantiation is through an Act of Parliament. An Act of Parliament is the formal agreement of the House of Commons, the House of Lords, and the Crown to a legislative proposal (a Bill). An Act of Parliament is the highest form of law known to the English legal system. (Some doubts have been expressed as to whether the same is true in Scots law, but the issue has not arisen for judicial determination and there is a strong argument to be made that the same position holds in Scots law as in the law of England and Wales (Tomkins 2004).) This placing of Acts of Parliament at the apex of the legal order is what is meant by the sovereignty of parliament (Goldsworthy 1999). We saw above that Dicey stated that parliament may make or unmake any law whatever. He went on to state that ‘no person or body is recognised by the law … as having a right to override or set aside the legislation of Parliament’ (Dicey 1885: 40). Thus, it will be seen that it is not parliament that is sovereign under this doctrine, but Acts of Parliament, or rather Acts of the Crown‐in‐Parliament. That is to say, Acts which have been formally assented to by both parliament and the Crown, acting together. Acts of Parliament cannot be made by parliament without the Crown, and nor can they be made by the Crown without parliament. They can, exceptionally, be made by the House of Commons and the Crown acting together, without the assent of the House of Lords, but the circumstances in which this is possible, and the procedures required to be followed in such cases, are circumscribed in legislation (Parliament Acts 1911, 1949).
Several challenges have been made in recent years to the doctrine and practice of the sovereignty of parliament. A number of these will be considered later in this chapter.
14.3.3 The Rule of Law
Whereas the sovereignty of parliament is the legal doctrine that governs the relationship between the courts and parliament (providing that the courts have no power to override or set aside parliament's legislation), the rule of law is the legal doctrine (p. 247) that governs the relationship between the courts and the government, or executive. It provides that the government may do nothing without legal authority. The classic exposition of this principle dates from a case decided in 1765: Entick v Carrington (1765) 19 St Tr 1029. Entick was a pamphleteer critical of the government. Carrington was instructed by the Earl of Halifax, one of His Majesty's principal secretaries of state, to enter Entick's house, to search his house, to seize his papers, and to arrest him. This Carrington did. Entick sued Carrington for trespass and was successful, the court ruling that a mere warrant in the name of the secretary of state could not excuse liability for trespass. Only a law could excuse liability, and the instructions of a secretary of state were not law. For the trespass to have been lawful it would have had to have been authorized by legislation. If parliament legislates to empower a minister to issue instructions to the police, or to the security and secret intelligence services, to the effect that an individual's papers are to be seized, or that an individual is to be kept under surveillance, a minister issuing such instructions will not be acting contrary to the rule of law in the Entick v Carrington sense, as he will be acting with legal authority. In Entick v Carrington, Halifax had no such legal authority and the rule of law was therefore breached.
Since the middle of the nineteenth century the courts have developed a body of legal principles that may be seen as having developed the rule of law into a more sophisticated web of rules that the government—and public authorities generally— must follow in their decision‐making. Thus, public authorities must act fairly, they must not be biased in their decision‐making, they must afford certain parties rights to be heard before decisions are made which affect their interests, they must not misapply the law that regulates their discretion, they must act reasonably, and, at least when human rights are affected by their decisions, they must act proportionately. These rules have been developed by the courts through the case law of judicial review such that Britain now has as modern a system of administrative law as has long been common across continental Europe (the leading treatises on administrative law are Craig 2003 and Wade and Forsyth 2004). Thus, to return for a moment to Entick v Carrington, today's parliament has passed a raft of legislation empowering ministers to authorize the police and the security and secret intelligence services to intercept people's communications or to place certain persons under ‘control orders’ (see, e.g., Regulation of Investigatory Powers Act 2000, s. 5; and Prevention of Terrorism Act 2005, s. 2). In the exercise of these powers, both the ministers and the police and security officers involved must act fairly, reasonably, and proportionately. If they do not their actions may be quashed by a court on a claim for judicial review.
The modern law of judicial review has been developed by the courts—it is an example of the constitution evolving through the common law. More recently parliament has also intervened in an attempt to give impetus to the rule of law, passing legislation that further develops the ability of the courts to control government decision‐making. The most important example is the Human Rights Act 1998, considered in more detail later in this chapter. Taken together, the law of judicial review and the Human Rights Act play a leading role in the move from political to legal constitutionalism.
(p. 248) 14.3.4 The Separation of Powers
While constitutional monarchy, the sovereignty of parliament, and the rule of law are all core components of British constitutionalism, for the separation of powers that claim cannot be so boldly made. But what appears to be happening is that the separation of powers is growing in constitutional significance in the United Kingdom.
It is clear that the British constitution is not based on the eighteenth‐century model of the separation of powers that, for example, the US constitution is structured around. This model posits that the state should be divided into three powers or ‘branches’, separate but equal in terms both of function and personnel. The three branches are the legislature, the executive, and the judiciary, each of which ‘checks’ or ‘balances’ the other two (Vile 1998). Even though the British constitution is not based on this model, much of the model is reflected in British constitutional practice (Munro 1999: ch. 9). We do have an identifiably different legislature, executive, and judiciary. But there are numerous overlaps between the branches that would be unconstitutional in the United States. All government ministers are required to be drawn from one or other of the Houses of Parliament, for example. Until the relevant provisions of the Constitutional Reform Act 2005 come into force (in October 2009) the highest court of appeal in the United Kingdom will remain the Appellate Committee of the House of Lords, one of the Houses of Parliament, and all the members of that court continue simultaneously to be members of the legislature, even if they are no longer as active in a legislative capacity as until recently they were. Once the relevant provisions of the 2005 Act come into force the United Kingdom will have a new Supreme Court, which will replace the Appellate Committee of the House of Lords.
The Constitutional Reform Act 2005 is a significant measure. In particular, it contains important measures concerning the independence of the judiciary. It radically curtails the powers of the Lord Chancellor, moving that office more clearly into the executive branch and away from the judicial, and making the Lord Chief Justice the new head of the judiciary in England and Wales. It revises procedures governing the appointment of judges, limiting the direct input of the government and establishing a new Judicial Appointments Commission. In all of these respects, it is clear that one of the animating motives behind the Act was to give clearer expression in the structure of the British constitution to the separation of powers (Windlesham 2005; 2006). In particular, the Act has sought more sharply to demarcate the judiciary from the other two branches—the legislature and the executive. At the same time, the courts have themselves been concerned to underscore the same demarcation. Numerous recent House of Lords cases have emphasized the importance of having the judiciary determine points of law, free of executive influence (for example in the sentencing field, where the Home Secretary's powers to influence the length of sentence served by those imprisoned for ‘life’ have been effectively transferred to the courts; for the case law, see Turpin and Tomkins 2007: 106–12). The thrust of the case law, as of the 2005 Act, is once more to bolster the ongoing move from the political to the legal in British constitutionalism.
To the extent that the separation of powers has become recognized as a legally enforceable principle, however, such recognition remains partial. The legislative/executive distinction remains blurred, to say the least. Bagehot famously wrote that ‘The efficient secret of the … Constitution may be described as the close union, the nearly complete fusion of the executive and legislative powers’ (Bagehot 1867). Even if this would be unlikely now to be celebrated as unabashedly as did Bagehot, it is difficult to argue that we have moved substantially on from the picture Bagehot painted. When, for example, in 2006 the government introduced its Legislative and Regulatory Reform Bill, critics objected that the Bill would transfer an unacceptable degree of legislative power from parliament to ministers (the government sought in the Bill to find ways to make it easier for provisions in legislation to be removed where they were deemed to impose an unnecessary regulatory burden). During the passage of the Bill the government was required to concede a range of restrictions, curtailing the extent to which ministers could effectively legislate without parliament. The Bill was passed, however, albeit in amended form, and notwithstanding the amendments the Bill still represents a substantial increase in ministerial powers to amend and repeal provisions of primary legislation. Were the Legislative and Regulatory Reform Act 2006 to be challenged in court on the basis that it violates the principle of the separation of powers, a judge would have to rule, as the law currently stands, that the separation of powers must be read subject to the terms of the Act, and not the other way around.
14.3.5 Responsible Government
We saw above that the relationship between the Crown and its ministers, on the one hand, and parliament, on the other, is the central dynamic at the core of British constitutionalism. We have also seen that, in today's constitution, this dynamic is institutionalized through the conventions of ministerial responsibility: all government ministers are collectively and individually responsible to parliament for government policy and for the policies, decisions, and actions of government departments. Nothing needs to be added to these observations here, other than to underline their centrality to British constitutionalism. No account of the British constitution would be accurate, or even useful, without a full appreciation of the importance of the practice of responsible government (Birch 1964; Marshall 1984; Flinders 2002; Woodhouse 2002; Tomkins 2003: ch 5).
14.3.6 Devolution and the Union State
It used to be generally said that the United Kingdom had a unitary constitution rather than a federal one. More recently the view has come to the fore that the United Kingdom has a union constitution that is neither straightforwardly unitary (p. 250) nor systematically federal in character (Walker 2000; Tierney 2006). Clearly, the United Kingdom is not a federation. The country is not divided into regions of equal political power and none of the internal political divisions that exist within the United Kingdom is immune from being altered or repealed by parliament: there is no system of regional entrenchment against central (parliamentary) incursion. On the other hand, to conceive of British government solely in terms of the central institutions of Westminster and Whitehall, along with some moderate input from local government councils, would be to miss what has become one of the most interesting dimensions of British politics: namely, the ‘British question’ itself—and the divergent approaches that are commonly taken to that question in England, Scotland, Wales, and Northern Ireland.
From a legal point of view the United Kingdom is clearly a union. The very legislation by which the kingdom was united reveals as much: the Acts of Union with Scotland (1707) and Ireland (1800). The United Kingdom is a union of three legal systems—those of England and Wales, Scotland, and Northern Ireland. There have always been differences of law, including differences of constitutional law, between these three legal systems. Scots law is different from English law as regards the Crown, for example (Tomkins 2006), and, as we saw above, several Scots lawyers have expressed doubts as to the applicability in Scotland of what a Lord President of the Court of Session, no less, described as the ‘distinctively English principle’ of the sovereignty of parliament (see Tomkins 2004: 213). The constitutional differences between the constituent elements of the United Kingdom pre‐date devolution but they have, no doubt, been greatly augmented by devolution.
Under the various devolution statutes that have been passed since 1998 Scotland has its own parliament and executive, Wales has its own assembly and (since 2006) also a Welsh Assembly Government, and Northern Ireland has its own assembly and power‐sharing (i.e. cross‐party) executive. In addition, since 2000 London has had a new strategic authority (the Greater London Authority) and mayor, as well as its range of local (‘Borough’) councils, although whether these arrangements should be classed as either regional government or as a species of devolution is contested. The remainder of England has no regional or devolved institutions, either legislative or executive (a proposal to create an elected regional assembly for the North‐East region was comprehensively rejected in a referendum in 2004). (On devolution generally, see Turpin and Tomkins 2007: ch 4; Trench 2004; 2005; and Hazell and Rawlings 2005).
Even though it is frequently referred to as a ‘settlement’, devolution is not a one‐ off reform. In the famous words of Ron Davies, Secretary of State for Wales in Tony Blair's first Cabinet, devolution is ‘a process, not an event’ (Rawlings 2003: 10). How settled that process turns out to be, and what the process will lead to, is far from clear. In its first decade devolution was relatively smooth only in Scotland. In Wales, the devolution package had to be renegotiated as dissatisfaction grew that less was on offer (and less achievable) there than in Scotland. The result was the Government of Wales Act 2006, which replaced the Government of Wales Act 1998 with staggered tiers of devolution, some already in effect but others dependent on positive outcomes (p. 251) in future possible referendums. In Northern Ireland, devolution was suspended in October 2002, not to return until the Spring of 2007. For much of the period since 1998 the politics of Northern Ireland continued to be dominated by security issues but, at the time of writing, the agreement of the DUP and Sinn Fein to share devolved power appears to be holding. How long these new Welsh and Northern Irish arrangements remain in place is impossible even to guess at.
At the beginning of its second decade devolution is looking less smooth in Scotland. During the first two terms of the Scottish parliament (1999–2003, 2003–7) the Labour Party was in government in London and was the lead party in the Scottish Executive, in coalition in Edinburgh with the Liberal Democrats. This period was marked by such a high degree of goodwill and by such a strong desire that devolution should work and be seen to work smoothly that even the semi‐formal institutions of intergovernmental relations (such as the Joint Ministerial Committee) were not required to meet (Trench 2005). Such devolution disputes as there were between the British government and the Scottish Executive were resolved privately and informally. No such dispute has yet reached the courts. Within Scotland there was a widespread sense that, notwithstanding the shocking expense of the new Scottish parliament building, the devolutionary scheme of the Scotland Act 1998 had successfully solved the problems of Scottish governance which it had been designed to address (Turpin and Tomkins 2007: ch. 4).
This changed abruptly in May 2007, when the Labour/Liberal Democrat coalition was defeated in the Scottish parliamentary elections. As in 1999 and 2003, no one party secured a majority of seats in the Scottish parliament but, for the first time, the Scottish National Party (SNP) emerged in 2007 as the largest single party, albeit by only a single seat. Since 2007 it has formed a minority administration, with Alex Salmond as First Minister. Above all else, of course, the SNP is committed to independence for Scotland. Within three months of taking office, the new Scottish Executive published a discussion paper on Scotland's constitutional future, in which options, first, for a further devolution of legislative and executive powers and, second, for a move towards independence were outlined (Choosing Scotland's Future: A National Conversation).
At the same time the Conservative opposition in Westminster has grown increasingly vocal about the defects—from an English point of view—of Scottish devolution. The principal problem as the Conservatives see it is the unfairness implicit in a system that allows MPs from Scottish constituencies to vote on English matters when MPs from English constituencies cannot vote on Scottish matters where they are devolved to Holyrood. This is the famous ‘West Lothian Question’. Labour's answer to it— that devolution would be granted to English regions on demand, just as it had been granted to Scotland—was effectively negatived by the 2004 referendum in northeast England. The Conservatives have suggested that a better answer, ‘English votes for English laws’, may be to exclude Scottish MPs from voting on purely English matters, but both the workability and constitutional desirability of this must surely be doubted. For one thing, discovering what a purely English matter is would not always be straightforward; for another the majority of MPs may not support the same (p. 252) policies (or party, or even government) as the majority of MPs minus those from Scottish constituencies.
As a result of these developments, the future of Scottish devolution—and, indeed, the future of the Union—has become more uncertain and treacherous to predict. In the coming years we are likely to learn considerably more about whether devolution is the glue that holds the Union together (which was always Labour's intention) or whether it provides precisely the platform that the Nationalists need to make more convincing the case for independence. We may also find out whether the Conservatives (with precious little electoral support in Scotland and Wales) remain a unionist party, or whether they are on the way to becoming an English national party. Whichever way you look at it, at the time of writing, devolution (in particular, Scottish devolution) is the great unknown in British constitutionalism.
14.4 Contemporary Challenges to British Constitutionalism
The constitutional challenges that may be posed by devolution are for the future (albeit, perhaps, the near future). Challenges posed from other quarters are more established. Two such are outlined in this section: ‘Europe’ and New Labour's constitutional reforms. These challenges are not to be underestimated. Indeed, we shall see that their combined effect is to place into question every one of the six core features of British constitutionalism outlined in the previous section (see further below).
‘Europe’ refers to two separate creations: the first is the European Union (EU); the second is the European Convention on Human Rights (ECHR). Both have had a considerable impact on British constitutionalism, but their respective impacts vary and should not be confused with one another. Let us start with the EU. The United Kingdom joined what is now the EU in 1972. Britain's membership of the EU has had a profound impact on British government. A significant proportion of British legislation is now enacted in consequence of European law. Much ministerial time is taken up with European business—especially in the domains of trade, agriculture, social policy, and, increasingly, also in security, crime, and counter‐terrorism policy. But Britain's membership of the EU has also had a significant impact on constitutional law and, in particular, on the doctrine of the sovereignty of parliament. Under EU law, clashes between national law and European law will, in general, be resolved (p. 253) in favour of the latter. The European Court of Justice made this clear in a series of judgments handed down before the United Kingdom joined the EU (principally Van Gend en Loos in 1963 and Costa v ENEL in 1964: see Turpin and Tomkins 2007: ch. 5).
The sovereignty of parliament, it will be recalled, means that parliament may make or unmake any law whatever. What if parliament now wants to make a law which is contrary to EU law? It is clear that, were this to happen, the European Commission would have standing to bring the United Kingdom before the European Court of Justice and that the Court would be able to rule that the UK had violated EU law. If the United Kingdom refused to amend or repeal its offending legislation, the UK could be fined (Articles 226–8 EC). More interestingly for present purposes are the possibilities that may be open to British courts in the event of litigation seeking to challenge an Act of Parliament deemed to be contrary to EU law. Conventionally, no such challenge could hope to succeed—parliament may pass any law whatever, including, presumably, a law that was contrary to EU law. However, under the terms of Britain's entry into the EU, domestic courts were given the jurisdiction to apply and enforce EU law (in addition to the powers to apply and enforce domestic law which they already possessed). And, as we have seen, EU law considers that conflicts between national and European law should generally be resolved in favour of the latter.
One of the remarkable features of the EU's first half‐century is how rarely problems such as these occur in practice. Across all the member states there seems to have been an extraordinary desire among both political and legal elites to make the EU work, and to allow it to work as smoothly as possible. Member states have not sought to enact legislation which they know or suspect to be contrary to European law. In part, this may be because member state governments continue to play a lead role in the making of European law, through the legislative functions of the Council of Ministers. In part, though, it stems from a deep political sense that it is in the national interest for the EU to operate successfully. In the British example, there has to date been only one case in which the UK courts were required to confront the tension between the supremacy of EU law and the sovereignty of parliament. The case is called Factortame.
Factortame concerned a challenge to provisions of the Merchant Shipping Act 1988 that had been designed to protect British fishing interests. Spanish‐owned fishing vessels were disadvantaged by the statutory scheme and they brought proceedings in the domestic courts arguing that it was contrary to Community law. The Divisional Court in London referred the case to the European Court of Justice for a preliminary ruling on the points of Community law, that arose in the case. Meanwhile, the applicants claimed interim relief—a remedy the effect of which would be to suspend the operation of the relevant provisions of the Merchant Shipping Act pending the final resolution of the case. The House of Lords initially held that the applicants could have no such interim relief, as the remedy they sought (an interim injunction against the Crown) was, for technical reasons, not available in English law (R v Transport Secretary, ex parte Factortame (No 1)  2 AC 85). However, it was not their (p. 254) interests in English law, but their rights under Community law, that the applicants were seeking to protect. The question arose, therefore, as to whether the applicants were as a matter of Community law entitled to interim relief. This question the House of Lords referred to the European Court of Justice. After receiving that Court's answer, the House of Lords ruled that the applicants were entitled, as a matter of Community law, to a remedy the effect of which was to suspend the operation of certain provisions of the Merchant Shipping Act. The House of Lords, exercising its jurisdiction to apply and enforce Community law, then granted the remedy (R v Transport Secretary, ex parte Factortame (No 2)  1 AC 603). This was the first time since the early seventeenth century that a court in England had granted a remedy the effect of which was to suspend part of an Act of Parliament.
Does this mean that the sovereignty of parliament is dead? Surely no: parliament retains the power to pass legislation that would withdraw the United Kingdom from the European Union. Short of this nuclear option, parliament also retains the power to pass legislation that includes a provision along the following lines: ‘This Act shall be construed and shall have effect notwithstanding any provision to the contrary in European Union law’. Whether such a provision would be effective to guarantee that a future House of Lords (or Supreme Court) would not be able in the context of that legislation to repeat the result obtained by the applicants in Factortame remains to be seen. Thus far, it has not been attempted. It is clear that such a provision would be contrary to European law and that the Commission would sue the UK in the European Court of Justice were such a provision to be relied upon in the UK. But whether the UK courts would be able to overturn it in the light of the sovereignty of parliament is one of those constitutional imponderables that we will not know the answer to until it happens.
What is clear is that, regardless of whether the law of the sovereignty of parliament has changed as a result of Britain's membership of the EU, the political context within which sovereignty operates has changed beyond recognition from the context that prevailed at the end of the nineteenth century, when Dicey was writing (for further argument on these matters, see Craig 1991; Tomkins 2003: ch. 4; Turpin and Tomkins 2007: ch. 5). What is also clear is that disquiet about the doctrine of the sovereignty of parliament is not confined to the EU context. In a House of Lords case decided in 2005, which had nothing to do with EU law, Lord Steyn opined for example that ‘The classic account given by Dicey of the doctrine of the sovereignty of Parliament … can now be seen to be out of place in the modern United Kingdom’ and Lord Hope stated that while our constitution is ‘dominated’ by the sovereignty of parliament, ‘parliamentary sovereignty is no longer, if ever it was, absolute’ (Jackson v Attorney General  1 AC 262; see further Turpin and Tomkins 2007: 66–76, 327–35). If parliament is not sovereign, we may ask, then who is? The implication of these dicta from Jackson is that a number of judges are preparing themselves to rewrite the law of sovereignty—so that no longer will parliament be able to ‘make or unmake any law whatever’, but only such laws as the courts hold to be lawful, or constitutional. The move, encountered numerous times in this chapter, from the political constitution to the legal constitution, has (p. 255) begun to encroach, it seems, even upon a matter as fundamental as the sovereignty of parliament.
14.4.2 New Labour and the British Constitution
The second great source of European influence on British constitutionalism is the European Convention on Human Rights (ECHR), a treaty drawn up under the auspices not of the EU but of the Council of Europe (and enforced not by the European Court of Justice in Luxembourg but by the European Court of Human Rights in Strasbourg). While the United Kingdom has been bound by the terms of the ECHR, as a matter of international law, since the treaty's inception, Convention rights have been enforceable in domestic law (i.e. in proceedings before the UK's own courts) only since the Human Rights Act 1998. This Act significantly enlarged the power of the judiciary to impugn both government decisions and statutes where they are argued to be in violation of Convention rights. While the courts cannot quash provisions of an Act of Parliament on this ground, under the Human Rights Act, section 4, they may make a ‘declaration of incompatibility’, a new remedy by which the court declares that a statutory provision is incompatible with Convention rights, inviting government and parliament to consider whether, in the light of such a judgment, the provision should remain law. By contrast, government actions and decisions that are found to be contrary to Convention rights may be quashed by the courts: section 6.
From the point of view of British constitutionalism, what is most significant about the Human Rights Act is the extent to which it further underscores the shift from political to legal constitutionalism. Under the model of the ECHR and the HRA it is no longer principally to parliament and to political institutions that we should look in the quest to hold the government to constitutional account, but to the courts. Parliament continues to have a role—ministers must declare to parliament that the Bills they propose are compatible with Convention rights (Human Rights Act 1998, section 19) and the Joint Committee on Human Rights, which amongst other tasks monitors legislation for human rights compliance, has played an important role in the law‐making process in recent years. But the importance of parliament's role has diminished in comparison with that of the courts.
A telling example comes from the counter‐terrorism field. Under the model of the Human Rights Act we must now look to the courts for an authoritative opinion on whether the government's counter‐terrorism strategies are compatible with the Convention rights to liberty, to a fair trial, and to freedom of expression, whereas we would formerly have looked principally to parliament to provide a crucible in which the policies of the government could be tested against the public interest in informed debate and detailed select committee scrutiny. When in December 2003 a cross‐party committee of parliamentarians published a report that was damning in its criticism of numerous aspects of the Anti‐terrorism, Crime and Security Act 2001, it caused barely a ripple (Privy Counsellor Review Committee 2003). But when, twelve months later, an eight‐to‐one majority of the law lords granted a declaration (p. 256) that one particular aspect of the legislation was incompatible with Convention rights, there was an enormous fuss in the media, in parliament, and in the law reviews (A v Home Secretary  2 AC 68; see Turpin and Tomkins 2007: 762–72). Whether the result—the Prevention of Terrorism Act 2005 and its extraordinary regime of ‘control orders’—was what the law lords had in mind as the desired outcome is a different question. The point here is not to rehearse the various merits and demerits of the legislative schemes, but to notice what the enormous difference in reaction between the parliamentary report on the one hand and the law lords' judgment on the other suggests about how far British constitutionalism has shifted from being primarily a political constitution to being primarily a legal one.
The Human Rights Act 1998 is one of a number of measures introduced by the New Labour governments of Tony Blair and Gordon Brown to reform the British constitution. Along with the devolutionary arrangements made for Scotland, Wales, and Northern Ireland (see above), the House of Lords Act 1999 (which removed all but ninety‐two of the hereditary peers from the House of Lords), the Freedom of Information Act 2000, the Constitutional Reform Act 2005 (see above), and the various commitments to further reform made in the 2007 Green Paper, The Governance of Britain (see above), these reforms amount to a substantial degree of rapid constitutional change (Foley 1999; King 2001; Oliver 2003; Johnson 2004). Immediately, however, two caveats must be entered: first, not everything has changed. The powers of the monarchy, the electoral system for elections to the House of Commons, the UK's legal relationship with the EU (and, for that matter, with the Commonwealth), and the relationship between central and local government are all the same now as they were before New Labour came into office. Secondly, it would be a serious error to imagine that the British constitution lay dormant or unchanged in the decades before 1997. Harold Wilson's race relations and sex discrimination legislation; Ted Heath's bringing the UK into the EU; and Margaret Thatcher's and John Major's reforms to the civil service, privatization programmes, and array of legislation on civil liberties all amounted to significant constitutional reform (Turpin and Tomkins 2007: 21–4). But, as Matthew Flinders has argued, not all constitutional change is of the same order. Flinders distinguishes between ‘cosmetic’, ‘moderate’, and ‘fundamental’ reform (Flinders 2005: 61–2). From a constitutional point of view, if not from a socio‐economic perspective, British constitutional reform in the halfcentury before 1997 was generally cosmetic or moderate (the exception being Britain's accession to the EU in 1972). Since 1997, by contrast, it is at least arguable that much of what the government has sought to reform constitutionally has been more fundamental.
This is true at least of the Human Rights Act and of the devolution legislation. As we have seen, the shift from political to legal constitutionalism, to which the Human Rights Act makes a substantial contribution, is the deepest structural change in British constitutionalism in our time. It is of the same order of magnitude as the shift from divine right to parliamentary monarchy in the seventeenth century and as that from the parliamentary government Walter Bagehot so brilliantly captured (Bagehot 1867) to the party government of the twentieth and twenty‐first centuries. Equally, (p. 257) the creation (or re‐creation) of new sites of political and governmental authority in Edinburgh, Cardiff, and Belfast, combined with the ways in which the proportional electoral systems employed there have qualified the extent to which those new sites of authority are able merely to ape the institutions of Westminster and Whitehall, is a constitutional innovation the full consequences of which have yet to be worked out and which, indeed, are currently unforeseeable.
In other respects, however, it may be that there is rather less to New Labour's constitutional reforms than its keenest advocates would have us believe. Since 1999 there has been much talk but precious little action on reforming the obviously undemocratic House of Lords (Hazell 2007: 9–12); the Freedom of Information Act 2000 was a half‐hearted affair and has delivered only a fraction of the ‘open government’ that had been promised in the government's 1997 Green Paper, Your Right to Know (Cm 3818; see Austin 2004); since 1998 there has been no movement at all on the issue of electoral reform for elections to the House of Commons; and government attempts to control the House of Commons have been as central to the Whips' mission as ever, albeit that, quite remarkably, the Commons has begun to stand up to government pressure in a variety of ways and, moreover, with some success, both in terms of its scrutiny of legislation (Cowley 2005) and in terms of resisting government attempts to interfere with the composition and work of parliamentary select committees (Flinders 2007; Power 2007). For all the recent emphasis on change and ‘modernization’ there has been a great deal of politics as usual. In a compelling analysis, Matthew Flinders has argued that, notwithstanding the importance of a number of New Labour's constitutional reforms, there has been no ‘far‐reaching shift in the nature of [British] democracy’, which remains firmly majoritarian rather than consensual in character (Flinders 2005: 63; cf. Mair 2000: 34). All of this said, however, and as our discussion of Scottish devolution suggests, Flinders is wise to point out that even if New Labour's constitutional reforms have been ‘less significant than might have been expected’, they might yet ‘set in train a critical momentum and dynamic that may … force at some point an explicit reconsideration of the structure and power relationships within Britain’ (Flinders 2005: 90).
Three further facets of New Labour's constitutional reform policies should be noted in conclusion. First, while constitutional reform may well be one of the principal achievements for which Tony Blair's period as Prime Minister is remembered, Mr Blair himself was famously uninterested in constitutional reform and had, in terms of the way he conducted politics on a day‐to‐day basis, strong centralizing and controlling instincts which ran counter to the most important constitutional reforms his governments introduced. David Marquand coined the term ‘the Blair paradox’ to summarize this peculiar state of affairs (e.g. Marquand 2000). It aptly captures Mr Blair's mixed legacy on constitutional questions. Secondly, it would be better if we spoke in terms of New Labour's constitutional reforms (in the plural), rather than of constitutional reform as a single entity. This is because, as numerous commentators have pointed out, there has been no overall plan (Foley 1999; Oliver 2003: 3; Hazell 2007: 18–19; Turpin and Tomkins 2007: 24). The various constitutional reforms have been advocated by different interest groups, for different reasons, to (p. 258) respond to different perceived weaknesses in the old constitutional order: consider, for example, the diverse pre‐histories of devolution, human rights legislation, and freedom of information (Foley 1999: chs. 3–4).
Finally, it should be observed that a number of New Labour's constitutional reforms (and a number of consequences that flow from them) are matters of apparently increasing political contention. The main parties are divided, for example, on House of Lords reform, on whether Scottish MPs in Westminster should vote on Bills that pertain only to England and Wales, and on whether the Human Rights Act should be replaced with a ‘British’ Bill of Rights, which draws lines between liberty and security differently from how the European Convention on Human Rights does it. In 2001 Mark Evans wrote that ‘Hitherto the literature on constitutionalism in Britain has been circumscribed by the apolitical nature of its constitutional politics. For much of this last century the UK constitution has remained apolitical’ (Evans 2001: 414). With an SNP administration in power in Edinburgh, a Labour government in London that is dependent for its majority on MPs representing Scottish constituencies, and a Conservative Opposition that is increasingly vocal both about ‘English votes for English laws’ and about certain judicial decisions concerned with the Human Rights Act, the picture Evans painted at the beginning of the decade may well need substantial revision before its end.
If we revisit the six core features of British constitutionalism outlined above, we will see: (a) that the centrality of the Crown/parliament dynamic is lessening in favour of the dynamic between parliamentary government on the one hand and the courts on the other; (b) that the doctrine of the sovereignty of parliament is under great pressure and may be weakening; (c) that the rule of law is growing in reach and in significance; (d) that the separation of powers is gaining greater constitutional importance, especially in terms of demarcating the judiciary from the institutions of parliamentary government; (e) that the focus of responsible government is shifting from parliament to the courts of law; and (f) that the Union, especially the Union between England and Scotland, is the great unknown, the factor with at least the potential to be the fly in the ointment.
The present time is one of rapid and in many cases significant constitutional change in Britain, change which in some instances the Blair/Brown New Labour governments have either caused (devolution) or contributed to (the Human Rights Act and the turn from political to legal constitutionalism) but which in other instances stems from different sources not altogether within the government's control (the common law; the EU). This chapter commenced with the observation that the British constitution is unusual. We live in an era of political and legal harmonization, of (p. 259) common denominators, and of a globalization that shows little respect for exception‐ alism, even in matters constitutional (Goldsworthy 2003; Beatty 2004; Hirschl 2004; Anderson 2005; Choudhry 2006). While the various continuities and ongoing traditions of the British constitution should be neither overlooked nor underestimated, the underlying dynamic of much of the constitutional reform examined here—namely, the turn from political to legal constitutionalism—is far from unique to the UK and is, indeed, widely experienced throughout the common law world and elsewhere. If current trends continue, claims as to the unusual nature of the British constitution may not long survive.
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