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Any attempt at comparing contemporary change in the UK and France is a bold one, since it means discussing two very different countries with strong distinctive constitutional identities. This book places its emphasis on the shared historical, political and cultural background of the UK and France, before focusing on the sweeping transformation of their constitutional frameworks in the past quarter of a century at a national and regional level – with a particular emphasis on Wales and Scotland – which culminated in the June 2016 referendum on Britain’s EU membership. Instead of examining each country separately, however, as is traditional, this study breaks new ground by explaining the pattern of institutional development in Britain and France from a comparative Franco-British perspective. It explores the complexities of recent constitutional change in both countries in an original and comprehensive way, and gives both British and French readers a deeper understanding of the two countries that have some much in common even though Brexit could drive them apart.

Foreword
Introduction
Chapter 1: Constitutional Change: codifying the British constitution, rewriting the French
1-The French constitution as a living organism and the British Constitution in flux
2-Amending the British constitution
3-Revising the constitution of ‘the one and indivisible Republic’
4-Unprecendented constitutional change: towards a constitutional revolution?
Chapter 2: The French presidency and the British monarchy: changed and yet unchanging institutions
1-An unbalanced executive-legislative relationship: a common area of concern
2-The search for the perfect constitution: French hesitations between a presidential regime and a British type of parliamentary regime
3-Blurred lines between the Head of State and the Head of Government
3.1-The nomination of French and British Prime Ministers
3.2- The lack of clear mandate of the French and British Prime Ministers
4-The presidential drift of the French system and the all-powerful British Prime Minister
5- The non-accountability of the French President and the British monarch
5.1-The immunity from suit of the French and British Heads of State
5.2-The French President’s political interference and the lobbying practices of the monarch-in-waiting
Chapter 3: Emancipating and reforming Parliaments in France and the United Kingdom
1-Rationalised parliamentarianism: its decline in France and its emergence in Britain
2-Reactivating conventions and constitutional practice in French and English parliamentary law
3-Reviving bicameralism in the United Kingdom and France
3.1-Undemocratically elected, yet more legitimate, second chambers
3.2-The House of Lords and the French Senate as counter-powers and custodians of freedoms and stability
4-Revisiting the myth of the non-reform of the Senate and the House of Lords
4.1-The abolition of the hereditary principle and the end of a structural conservative majority
4.2-The shorter more democratic mandate of French senators and a better representation of urban constituencies
5-The election process of French senators partly based on PR and the failed attempt at introducing a form of PR in the UK Parliament
5.1-A French Senate-type upper-limit as a potential solution for an ever-growing Lords
5.2-Failed attempts at introducing PR in the French National Assembly and in the Commons
6-Strengthening parliamentary control over the Executive
6.1-French ‘Questions to the Government’ and Prime Minister’s Questions in the UK
6.2-French and British committees as the cornerstone of parliamentary life
Chapter 4: Better protecting human rights and strengthening an independent judiciary
1-Asserting the unity of the English judiciary compared with the French division of courts
2-Strengthening the independence of the judiciary in England and France
2.1- A formal separation between the judiciary and the legislature with the Constitutional Reform Act (2005)
2.2-The development of constitutional justice in France
2.3-The President of the Republic in France, the Lord Chancellor and Secretary of State for Justice as guarantors of the independence of justice
2.4-French judges as symbols of the Republican Law, British judges as Her Majesty’s judges
2.5-The lack of diversity in the Higher Judiciary in the UK and in France
2.6-The importance of local justice in the UK and in France with the Lay Bench
3-Human rights under threat: A French state of emergency and British inroads into civil liberties
Chapter 5: Devolution in the United Kingdom, a decentralisation process in France
1-Piecemeal territorial reforms in France and the UK: common trends and patterns
2-The origin of contemporary devolution in the UK and decentralisation in France
2.1-The 1982 and 1983 decentralisation or Deferre Laws: a minimalist form of devolution
2.2-The Kilbrandon Report (1973) as the catalyst for devolution in the UK
3-The legal framework: no clear division of competences
3.1-The French general competence clause and British transfers of competences to separate devolved governments
3.2-A reserved-powers model for Scotland, a conferred-powers model for Wales
3.3-Abolishing French régions or départements: a permanent dilemma
3.4- Pressing for more decentralisation in France and more devolution in the UK
4-The financial framework: devolved administrations’ and territorial communities’ limited fiscal responsibility
5- The way ahead: a revisited Union and a more diverse Republic
Chapter 6: The European Dimension: France and the UK, Partners in Europe
1-War powers and parliamentary consent in France and the United Kingdom
2-A tradition of human rights in common within the Council of Europe
3-Constitutional issues triggered by a common EU membership
4-The 2005 French referendum on the European Constitution and the 2016 referendum on the UK’s EU membership
Conclusion
Bibliography
Index

Sujets

International Relations

Political Science

Diplomacy

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Publié par	University of Wales Press
Date de parution	15 septembre 2017
Nombre de lectures	0
EAN13	9781786831248
Langue	English

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Extrait

Constitutional Reform in Britain and France
Constitutional Reform in Britain and France
From Human Rights to Brexit
Elizabeth Gibson-Morgan
© Elizabeth Gibson-Morgan, 2017
All rights reserved. No part of this book may be reproduced in any material form (including photocopying or storing it in any medium by electronic means and whether or not transiently or incidentally to some other use of this publication) without the written permission of the copyright owner. Applications for the copyright owner’s written permission to reproduce any part of this publication should be addressed to the University of Wales Press, 10 Columbus Walk, Brigantine Place, Cardiff CF10 4UP.
www.uwp.co.uk
British Library CIP Data
A catalogue record for this book is available from the British Library
ISBN 978-1-78683-122-4
eISBN 978-1-78683-124-8
The right of Elizabeth Gibson-Morgan to be identified as author of this work has been asserted in accordance with sections 77 and 79 of the Copyright, Designs and Patents Act 1988.
The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
To Kenbach
Contents
List of Abbreviations
Foreword
Introduction
Chapter One: Constitutional Change: Codifying the British Constitution, Rewriting the French
The French constitution as a living organism and the British constitution in flux
Amending the British constitution
Revising the constitution of the ‘one and indivisible’ Republic
Unprecedented constitutional change: towards a constitutional revolution?
Conclusion
Chapter Two: The French Presidency and the British Monarchy: Changed and yet Unchanging Institutions
An unbalanced executive–legislative relationship: a common area of concern
The search for the perfect constitution: French hesitations between a presidential regime and a British type of parliamentary regime
Blurred lines between the Head of State and the Head of Government
The nomination of French and British Prime Ministers
The lack of a clear mandate for the French and British Prime Ministers
The presidential drift of the French system and the all-powerful British Prime Minister
The non-accountability of the French President and the British monarch
The immunity from suit of the French and British Heads of State
The French President’s political interference and the lobbying practices of the monarch-in-waiting
Conclusion
Chapter Three: Emancipating and Reforming Parliaments in France and the United Kingdom
Rationalised parliamentarianism: its decline in France and its emergence in Britain
Reactivating conventions and constitutional practice in French and English parliamentary law
Reviving bicameralism in the United Kingdom and France
Undemocratically elected yet more legitimate second chambers
The House of Lords and the French Senate as counter-powers and custodians of freedoms and stability
Revisiting the myth of the non-reform of the Senate and the House of Lords
The abolition of the hereditary principle and the end of a structural Conservative majority
The shorter, more democratic mandate of French senators and a better representation of urban constituencies
The election process of French senators partly based on PR and the failed attempt at introducing a form of PR in the UK Parliament
A French Senate-type upper limit as a potential solution for an ever-growing Lords
Failed attempts at introducing PR in the French National Assembly and in the Commons
Strengthening parliamentary control over the executive
French ‘Questions to the Government’ and Prime Minister’s Questions in the UK
French and British committees as the cornerstone of parliamentary life
Conclusion
Chapter Four: Better Protecting Human Rights and Strengthening an Independent Judiciary
Asserting the unity of the English judiciary compared with the French division of courts
Strengthening the independence of the judiciary in England and France
A formal separation between the judiciary and the legislature with the Constitutional Reform Act (2005)
The development of constitutional justice in France
The President of the Republic in France, the Lord Chancellor and Secretary of State for Justice as guarantors of the independence of justice
French judges as symbols of Republican Law, British judges as Her Majesty’s judges
The lack of diversity in the higher judiciary in the UK and in France
The importance of local justice in the UK and in France with the lay Bench
Human rights under threat: a French state of emergency and British inroads into civil liberties
Conclusion
Chapter Five: Devolution in the United Kingdom, a Decentralisation Process in France
Piecemeal territorial reforms in France and the UK: common trends and patterns
The origin of contemporary devolution in the UK and decentralisation in France
The 1982 and 1983 decentralisation or Deferre Laws: a minimalist form of devolution
The Kilbrandon Report (1973) as the catalyst for devolution in the UK
The legal framework: no clear division of competences
The French general competence clause and British transfers of competences to separate devolved governments
A reserved-powers model for Scotland, a conferred-powers model for Wales
Abolishing French régions or départements : a permanent dilemma
Pressing for more decentralisation in France and more devolution in the UK
The financial framework: devolved administrations’ and territorial communities’ limited fiscal responsibility
The way ahead: a revisited Union and a more diverse Republic
Conclusion
Chapter Six: The European Dimension: France and the UK, Partners in Europe
War powers and parliamentary consent in France and the United Kingdom
A tradition of human rights in common within the Council of Europe
Constitutional issues triggered by a common EU membership
The 2005 French referendum on the European constitution and the 2016 referendum on the UK’s EU membership
Conclusion
Conclusion: Towards a New Entente Cordiale
Bibliography
List of Abbreviations
AV
Alternative Vote
CC
Conseil Constitutionnel /French Constitutional Council
CE
Conseil d’Etat /French Council of State
CPCR
Commons Political and Constitutional Reform Committee
CRA 2005
Constitutional Reform Act 2005
CSM
Conseil Supérieur de la Magistrature /French High Council of the Magistracy
EAW
European Arrest Warrant
EC
European Commission
ECHR
European Convention on Human Rights
EJN
European Judicial Network
ENM
Ecole Nationale de la Magistrature /French Judicial Training College
EP
European Parliament
EU
European Union
FN
Front National /French National Front
FPTP
First-Past-the-Post
GWA
Government of Wales Act
HC
House of Commons
HL
House of Lords
HRA 1998
Human Rights Act 1998
JAC
Judicial Appointments Commission
JPCHR
Joint Parliamentary Committee on Human Rights
LCO
Legislative Competence order
MP
Member of Parliament
PR
Proportional Representation
RPR
Rassemblement pour la République/literally the ‘Rally for the Republic’, a neo-Gaullist conservative party
QC
Queen’s Counsel
QPC
Question Prioritaire de Constitutionnalité /preliminary ruling on constitutionality
SNP
Scottish National Party
TEU
Treaty on the European Union
UK
United Kingdom
UKIP
United Kingdom Independence Party
UKSC
United Kingdom Supreme Court
UMP
Union pour le Mouvement Populaire/French Union for a Popular Movement
Foreword
I n this book, I examine the course of constitutional change in the United Kingdom and France in the past few years. The sweeping transformation of British constitutional systems and institutions since the advent of the Blair government in 1997 has been analysed by many scholars and commentators. Those in the French Republic since the turn of the century have been far less widely noted, yet here too there have been fundamental reforms both at national and regional level. The novelty in this work is that, instead of examining each country on an individual basis, I have deliberately opted for a comparative approach. I have realised this offers new insights into the pattern of institutional development in the two countries. It also chimes in with my own deep attachment to both as a Franco-British person with dual nationality, committed to the vision of an entente cordiale. I was able to complete my work after the historic referendum on membership of the European Union in June 2016 and the important High Court of Justice judgment on it later in November, which bore directly on many key aspects of my work.
I have found research on either country deeply fascinating over the past few years, and in each case I have much cause for gratitude to those whose learning and personal guidance have helped me along the way. In France my understanding was much assisted by the wise advice of Professor Jean Gicquel of the Sorbonne, along with Professor Mélin-Soucramanien – now the Ethics Officer of the French National Assembly – and the Dean of the Bordeaux Law School, Professor Jean-Christophe Saint-Pau. In the United Kingdom I received many stimulating ideas from my colleagues at King’s College London, Professor Robert Blackburn (Hon. QC), Professor Vernon Bogdanor and Dr Andrew Blick. I also benefited from the legal wisdom of Matt Kelly QC and of the members of the Franco-British Lawyers Society. Simon Blundell was immensely helpful in allowing me access to the library at my Club, the Reform; the Law Library at the Bodleian in Oxford was a treasure-house, while my son-in-law, Tim Spillane, kindly assisted me with current legal literature. Dr Alexis Chommeloux offered much professional and personal support at the University of Tours, while to Professor Geoffrey Thomas, former President of Kellogg College, Oxford, I can only say – diolch! I