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Lord Bingham of Cornhill
Senior Lord of Appeal in Ordinary

Speech to Justice: "The Evolving Constitution"

Law Society, Chancery Lane, London

Thursday, 4 October 2001

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Viewed in retrospect, the half century which followed our victory in 1945 was a period of unusual constitutional quiescence. The powers of the House of Lords were, it is true, further curtailed by the Parliament Act 1949, and the House was given a blood transfusion by the Life Peerages Act 1958. Fifty years of devolved government in Northern Ireland were brought to an end, for reasons unhappily all too familiar, by the Northern Ireland (Temporary Provisions) Act 1972. The Greater London Council was established by the Local Government Act 1963 and abolished by the Local Government Act 1985. The European Convention was ratified in 1951 and a right of individual petition granted in 1966. Many former colonial territories became independent states, mostly within the Commonwealth, with their own, usually entrenched, constitutions. But most of these changes were seen as events of political rather than constitutional significance, if seen as significant at all. None of them aroused the passion, or made the impact on the public, or gave the sense that fundamental features of the constitution were at stake, which characterised the struggle over the House of Lords' powers in the early years of the century, or the long battle over Irish Home Rule from 1883 onwards, or the campaign to enact the great Reform Act of 1832. It seems plain, looking back, that the change of greatest constitutional significance during the period was our accession to the European Economic Community by the European Communities Act 1972, but at the time this was seen by most, and perhaps offered to the public, more as a political and economic change than a constitutional one.

It may be this long period of inertia which contributed, in part at least, to the flood of constitutional legislation released by the Blair government after the 1997 election. The Prime Minister himself, still in opposition, described this as "the biggest programme of change to democracy ever proposed",[Endnote 1] and a more objective commentator, Professor Robert Hazell, has described Labour's constitutional reform programme as "the major achievement of their first term".[Endnote 2] To have enacted 11 statutes of constitutional significance, in some cases major significance, in the first legislative session of the new Parliament is indeed a striking record - an exercise on which, perhaps, only a fresh and energetic government, unconstrained by long experience of office, would ever have embarked. But the process of constitutional change is by no means complete, as the government itself would be the first to assert. So it is perhaps a good moment to think a little about the constitution as it evolves, in a neutral, objective, unprescriptive and, at this stage, necessarily tentative way.

With reference to reform of the House of Lords the government has more than once asserted that "there is no intention to begin from first principles".[Endnote 3] One can understand the opposition response in the Lords: "Can that really be true? After all, where else would one begin?" But one can also understand that we have to start from where we are. Even the fathers of the American republic who gathered in Philadelphia to prepare the constitution of the United States did not have a clean sheet of paper before them.[Endnote 4] The sheet before us has 1000 years of history written on it.

But it is surely salutary, in considering any change or proposed change, to bear in mind the first principles which underlie, or should underlie, the constitution of a modern, liberal, democratic state governed by the rule of law such as we aspire to be. For first principles are by definition basic principles and provide a touchstone - not a conclusive test, but a touchstone - in deciding whether a reform or proposed reform points in the right direction or a wrong one.

Any interested and reasonably intelligent citizen could no doubt amuse him - or her - self by formulating the first principles which should underlie our constitution. I shall myself put forward three such principles, accepting of course that additional and probably better principles could be formulated. Mine may provoke dissent, or qualifications other than those I shall myself make. They may on the other hand strike everyone as obvious and platitudinous beyond endurance: if so, I am unabashed since it is in the nature of a first principle to be obvious and platitudinous. Let me state these, as I hope unstartling, principles.

First: decisions affecting the life and activities of the citizen should generally speaking be made at the lowest level of government consistent with economy, convenience and the rational conduct of public affairs. This is plainly akin to the European principle of subsidiarity. But I am not sure that the notion of subsidiarity applies at any level below that of the member state, and in any event this expression has acquired certain nuances which are irrelevant for present purposes. So I shall call this "the devolutionary principle".

Secondly: the legislature should broadly reflect the opinion of voters, including those in a significant lawful minority. I shall call this "the representative principle".

Thirdly: the laws of the land should be justly administered by judges and magistrates who are and are seen to be separate from and independent of both the legislature and the executive. I shall call this "the principle of judicial independence".

I would like, inevitably briefly, to touch on some aspects of these principles in the context of our evolving constitution.

(1) The devolutionary principle

While there is endless scope for argument about the application of this principle - what powers should be devolved and to what level? - I doubt if any rational person would challenge the principle as such. It would be obviously absurd if the central government were to concern itself with (for instance) local refuse collection, and equally absurd - although it is not so long since certain local authorities declared their areas to be nuclear-free zones - if (say) foreign policy and defence were not conducted by the central government. So the problem is where to draw the line, or lines. The devolutionary principle as I have expressed it is, I think, the ethical principle which underlies any federal or quasi-federal structure, and it recognises what I take to be a fact of political life: that the further removed from the citizen a government is, the more bureaucratic and out of touch with local problems the citizen tends to perceive it to be. The usual British perception of the not very swollen bureaucracy in Brussels illustrates the point.

It would seem clear that the devolutionary principle provides the rationale of the Government of Wales Act 1998, the Scotland Act 1998, the Northern Ireland Act 1998 and - although it is somewhat different - the Greater London Authority Act 1999. The bodies established by these Acts are still of course in their infancy, and I shall not attempt to summarise the differing and complex statutory provisions which govern them, a task already admirably done under the auspices of the Constitution Unit at University College London.[Endnote 5] I would make four points.

First, in each of Scotland, Wales, Northern Ireland and London the representative body is elected for a fixed term of four years, subject in Scotland and Northern Ireland to earlier dissolution on a two-thirds vote of members. This provision contrasts with the five-year maximum which obtains at Westminster. Of the 15 governments which have completed their terms since 1945, only five have run for approximately five years and in these cases the government in power at the end of that time either lost (as in 1964, 1979 and 1997) or won with a greatly reduced majority (as in 1950 and 1992). Of the governments which served a term of around four years, five were comfortably re-elected. One possible inference - there are others - is that after about four years the public want an opportunity to vote again. If so, a fixed four-year term subject to earlier dissolution on a vote of no confidence would offer a possible solution.

Secondly, the parliament in Scotland and the assemblies in Wales, Northern Ireland and London are elected under a system of proportional representation, although the form of PR used in Northern Ireland is different from that in Scotland, Wales and London. I take these provisions to reflect what I have called the representative principle. The predictable effect of PR was to reduce the prospect of one-party government. In Scotland it has led to a coalition, in Wales to a minority administration at risk if its opponents combine against it. In Northern Ireland, coalition is a cardinal feature of the devolved settlement. Disraeli's much-quoted observation that "England does not love coalitions", if accurate at all, should now perhaps be read rather literally. It may be that the practical operation of the devolved bodies, elected by PR, will yield lessons applicable to Westminster elections: the government's intention is to review the working of the new systems in Scotland and Wales and then assess whether changes might be made.[Endnote 6]

Thirdly, in neither Scotland nor Wales have the devolved institutions enjoyed a trouble-free début. In both countries they have been the subject of strong media criticism. In both, as polls show, the expectations of the public have been disappointed. But in neither country has the devolved administration shown itself to be a compliant tool of Westminster or Whitehall. The Scots took an independent line on tuition fees, and made a more generous settlement for teachers' pay. The Welsh threw off the leadership of a man seen - rightly or wrongly - as insufficiently independent of central government, and negotiated a grant outside the Barnett formula to match EU structural funds. The Mayor of London has taken his own line - right or wrong - on the future of the underground. There has been strikingly little strife between the parties. And, perhaps most significantly of all, the sense of public disappointment in Scotland and Wales has led, not to calls for the whole devolutionary experiment to be scrapped, but for increased powers to be granted to the devolved institutions. A similar plea has been heard in London. On present evidence - and I here leave aside Northern Ireland, as a special case - it would seem more likely that the devolution settlement will be extended than that it will be revoked or wither away.

My fourth point is this. Dicey's opinion was that federal government tended to be weak, conservative and legalistic.[Endnote 7] He would, I think, have expected the quasi-federal system which we now have to show the same characteristics. It is much too soon to judge whether it will. But it may be that government founded on a cross-party consensus will prove to be strong. Early indications do not suggest undue conservatism. And we have to hope that the system is not discredited by objectionable legalism.

What then of England? Stands England where she did? The questions are pertinent, since England has been described as "the gaping hole in the devolution settlement"[Endnote 8] and the present arrangements in England as "inherently unstable".[Endnote 9] Further change in the regional arrangements for England has been described as "inevitable".[Endnote 10]

One manifestation of the English problem, as it has been called, is at Westminster. In the light of the devolution settlement the over-representation of Scotland and Wales becomes harder to justify. The future of the territorial secretaries of state has become problematical.[Endnote 11] There is an obvious lack of symmetry in an arrangement which prevents English MPs voting on a large range of matters devolved to Scotland but permits Scottish MPs to vote on the same matters relating to England. It is even more asymmetrical that while the people of Scotland, Wales and Northern Ireland, accounting between them for 15% of the population of the United Kingdom, enjoy the benefit of devolved institutions, no similar benefit is enjoyed by the 85% of the population who live in England. The point has been made that if Scottish, Welsh and Northern Irish MPs were to be denied, or were by convention to abjure, the right to vote on purely English legislation, a government might have a majority in the British but not in an English Parliament.[Endnote 12]

It may be - I express no view - that some of these problems are more theoretical than practical. Constitutional arrangements which develop organically tend to be asymmetrical but may still work. For 18 years a government with nothing approaching a majority in Scotland legislated for Scotland, and I recall no protest by English MPs. If on a matter dear to English voters, applying only to England and opposed by a majority of English MPs, legislation was carried by Scots, Welsh or Northern Irish votes, there would no doubt be an outcry and a demand for change, but the parliamentary arithmetic would not seem to make that a very likely event, for the foreseeable future at least. The more interesting, and still open, question is whether the time is coming when a greater measure of devolution should be extended to the English regions.

Here, there has been change. In 1994 there were established Government Offices in eight artificially created English Regions: the North-East, the North-West, Yorkshire & Humberside, the East Midlands, the West Midlands, the South-West, the East of England and the South-East. Their essential function was to represent central government locally, particularly in the fields of transport, the environment, employment, and trade and industry. The Labour Party, in its 1997 manifesto, proposed to establish Regional Development Agencies in the eight regions, to co-ordinate economic development, help small business and encourage inward investment. This was duly done under the Regional Development Agencies Act 1998. The boards of RDAs now comprise around 13 members drawn from local authorities, the private sector, education, trade unions and regional quangos.[Endnote 13] It was also proposed in 1997 to establish regional chambers to co-ordinate transport, planning, economic development, bids for European funds and land use planning. It was recognised that the demand for elected regional government varied across England, but "in time" legislation would be introduced to allow the people, region by region, to decide in a referendum whether or not they wanted elected regional government. Arrangements for elected regional assemblies would be made only where clear popular consent was established.

In the event, regional chambers (or "regional assemblies" as they style themselves) have been set up. They have between 35 and 117 members, a majority of whom are elected local authority representatives and about one-third drawn from business, trade unions, voluntary organisations and other interests.[Endnote 14] They have been designated under the Regional Development Agencies Act 1998, which obliges the RDAs to take account of their comments on the RDAs' Regional Eonomic Development Strategy. But the regional chambers' statutory existence has been described as "slim" and their budgets as inadequate, even for the discharge of their limited functions,[Endnote 15] and there has as yet been no referendum to test the state of public opinion in any of the regions. The people of England have not spoken yet. But they have, it seems, begun to murmur.

The Campaign for a North East Assembly was founded in 1992 to campaign for directly elected regional government. After the 1997 election a North East Constitutional Convention, chaired by the Bishop of Durham, was set up, in conscious imitation, as one would suppose, of the constitutional convention which the Scots set up in 1988 to prepare the way for Scottish devolution. It is perhaps unsurprising that the North East should emerge as the pioneer of administrative devolution to the regions, being the area furthest from London and closest to Scotland. And it has the strongest of all motives: a sense of grievance at the allocation of public expenditure. As Lord Barnett, the author of the formula which bears his name, has pointed out:

But the North East does not stand alone. Constitutional conventions have also been set up for the North West, Yorkshire, the West Midlands, the South West and Cornwall. So far, the constitutional conventions from the North East and the North West have published proposals for elected assemblies.[Endnote 17] The North West propose regionalised representation in the House of Lords.[Endnote 18]

"England", it has been said, "is the space where everything is still to play for".[Endnote 19] But do the people want to play? No one can yet be sure. Any attempt to introduce elected regional assemblies would plainly be futile and self-defeating unless there is a clear popular demand. And such a demand must show a reasoned justification, whether in terms of enhanced local democracy, or improved economic management, or on other grounds. A recent report by Mark Freedland and Paul McQuail has authoritatively examined the wide range of issues to be considered and resolved.[Endnote 20] At this stage I would venture only three tentative conclusions:

(2) The representative principle

I defined this to mean that the legislature should broadly reflect the opinion of voters, including those of a significant lawful minority. The Report of the Independent Commission on the Voting System ("the Jenkins Commission") pithily expressed the same principle:

The main qualifications to the principle are familiar. Those elected should exercise their judgment in the interests of their constituents and not act as mandated delegates. It is reasonable to require a certain level of support before parliamentary representation is achieved, to avoid the proliferation of small, perhaps single-issue, parties. Representation may properly be denied to those adopting non-democratic methods. I do not think these qualifications are controversial.

Since the House of Commons is the central institution of our democracy, one would perhaps expect the system employed for elections to it to be closely based on the representative principle. Whether the simple majority system used for elections to Westminster - unlike elections to the devolved institutions and the European Parliament - gives fair effect to the principle is of course very controversial, and (as already noted) the subject of deferred decision.

Those who advocate change to a more proportional system draw attention to a number of anomalies and disproportionate results yielded over the years. In 1945 the Labour Party obtained 12 million votes and won 393 seats. In 1950 that party won 1¼ million more votes but won 78 fewer seats. In 1951 it won its highest ever percentage of the poll and its highest ever number of votes. The Conservatives won a quarter of a million fewer votes but gained a majority of 26 seats over Labour. In February 1974 the Conservatives had an advantage of 0.7% - a quarter of a million votes - but won fewer seats than Labour. But the main losers were the Liberals, who won more than half as many votes as Labour (6 million) - amounting to 19% of the vote - but only 2% of the seats. In October 1974 the Liberals suffered again: their 5.3 million votes were more than half those of the Conservatives, but yielded 13 seats against the Conservatives' 277. In 1983 the 25.4% of the vote won by the Alliance achieved only 3.5% of the seats. In 1997 the Labour Party won 63.6% of the seats with 43.2% of the vote, the Liberal Democrats 7% of the seats on 16.8% of the vote. In Scotland, Wales and almost all the major provincial English cities Conservative representation was eliminated, despite the winning by the party in these areas of 1.8 million votes, 17% of the total. In the general election this year, Labour won 62.7% of the seats on 40.8% of the UK vote.

Those who resist change to a more proportional system suggest, no doubt rightly, that any voting system may on occasion yield an anomalous result. But they would claim that the simple majority system now operated has the virtue of yielding clear outcomes, which make for strong government by a single party and the avoidance of coalitions paralysed by internal dissension and the need for compromise. The Jenkins Commission, reviewing the history of the last 150 years, has questioned that contention. For 43 of those 150 years Britain has been governed by an overt coalition. In addition there have been 34 years in which the government of the day was dependent on the votes of another party or parties. For another nine years the government of the day, while commanding a majority, nonetheless enjoyed so narrow a majority as to give it no certainty of success in the division lobby. Thus in only 64 out of the last 150 years has a single-party government enjoyed undisputed command over the House of Commons.[Endnote 25] Any decision on the appropriate voting system must, I need hardly say, be a matter of political and democratic, not legal, decision. Whether the quality of government during that period of 64 years was so markedly superior to that during the balance of 86 as to justify the present system will be a proper matter to consider when making that decision.

The House of Lords in its historic hereditary form paid little respect to the representative principle. So it is not surprising that the preamble to the Parliament Act 1911 should have indicated an intention to substitute a popular for a hereditary chamber, although recognising that such a substitution could not "immediately be brought into operation". Eighty-six years later, in 1997, the Labour Party in its manifesto undertook to end the right of hereditary peers to sit. This was to be the first step in a process of reform to make the House of Lords "more democratic and representative". The House of Lords Act 1999 largely achieved the first of these objectives. The second awaits accomplishment. A star-studded Royal Commission on the Reform of the House of Lords, chaired by Lord Wakeham, has reported.[Endnote 26]

As it now stands, the House of Lords has a number of features which make it unique, or if not unique, unusual , in comparison with second chambers elsewhere. I draw attention to ten such features.[Endnote 27]

Although supplied with information on second chambers elsewhere, the Wakeham Commission concluded that these were too different from our own to offer any general lessons or guidance.[Endnote 41] It is of course true that constitutional organs which have grown up in one country cannot be crudely transplanted to another without a high risk of rejection. But overseas experience can, as I think, be valuable, not in offering a blueprint for a reformed second chamber in this country but as suggesting certain do's and don'ts to inform, in however general a way, the course of debate on the future shape of the chamber. I would tentatively proffer a series of seven propositions.

(3)  The principle of judicial independence

I turn thirdly, and necessarily briefly, to my third principle, the principle of judicial independence.

While the British constitution does not, quite obviously, provide for the separation of legislative and executive authority, it does (save in two respects) provide for an absolute separation of judicial from legislative and executive authority. The two exceptions are, of course, the Lord Chancellor, who is a member of all three branches of government, and the law lords, who are members of two.

The constitutionally anomalous role of the Lord Chancellor has been recognised for many years. Jeremy Bentham waxed polemical on the subject.[Endnote 55] But criticism has become increasingly strong in recent years. It is directed not to the Lord Chancellor's roles in the legislature and the executive, in which respect he differs from no other minister, but to his combination of these with his judicial role, that of head of the judiciary.

This role (as distinct from the Lord Chancellor's role as the minister responsible for his department and the court service) has four main practical manifestations. The first is a purely judicial role: although he is nominally the senior judge of the Court of Appeal and the Chancery Division, this role is in practice confined to the appellate committee of the House of Lords. It is a role which has come under increasing pressure over the last 30-40 years, partly because of increasing demands on the Lord Chancellor's time and attention, which prevent him devoting significant tracts of time to judicial business, and partly because of a growing readiness to question the impartiality of the Lord Chancellor in any case bearing, however remotely, on the interests of government. It seems perhaps unlikely that these pressures will lessen.

The second manifestation is as the appointer of judges, a task which would probably not, without constitutional safeguards, be entrusted to a "pure" member of the executive. This role also is under pressure. Changes have already been made. Further changes have been widely canvassed. I hope that any further changes will take account of what I regard as the wise words of Alexander Hamilton, writing in The Federalist with reference to judicial and other appointments under the proposed United States constitution:

Hamilton of course required the co-operation of the Senate as a check upon "a spirit of favouritism in the President",[Endnote 57] but it is a long time since any Lord Chancellor was accused of favouritism, political or otherwise.

The third manifestation is the Lord Chancellor's role as, in practice, the sole disciplinary authority in relation to judges. This again is not a role which could, without constitutional safeguards, be entrusted to the executive. The net result is to spare us the complicated and time-consuming procedures to which many other countries are obliged to resort.

The fourth manifestation is the most elusive but the most important of the four. It is the Lord Chancellor's role as the guarantor, at the highest level of government, of the values of the legal system and the rule of law. The Lord Chancellor's seniority, the lack of any possibility of his preferment and his peculiar identification with the judiciary enable him to perform this role with a degree of authority which no other minister could hope to enjoy. It may be thought by some that in our benign and well-ordered democracy there is no need for such a watchdog. I counter with James Madison's enduringly pertinent observation in the Virginia Convention in June 1788:

If the office of Lord Chancellor is to be reformed, and pressure for reform undoubtedly exists, I hope that attention will be paid not only to the anomalies to which the office is subject but also to its strength and virtue in our constitutional system.

Lastly, the law lords. The Wakeham Commission concluded:

This was no doubt a reasonable conclusion for the Commission, considering the shape of a reformed chamber, to reach. But it does not address a more fundamental question, whether it is desirable that the House of Lords or a reformed second chamber should exercise judicial functions at all. Montesquieu did not think so:

Hamilton agreed:

These points, however valid when made, scarcely reflect the reality of our present position. The law lords are for all practical purposes a distinct and independent body of men, and despite the duality of their role liberty seems, by and large, to have survived tolerably well. Our existing arrangements, if not unique, are certainly highly unusual, but singularity is not in itself an argument for change if the system works satisfactorily. Those who favour change (who include me, but not a number of my colleagues and not, to my knowledge, the government) do so for two main reasons. The first is that the institutional structure should reflect the practical reality. If the appellate committee of the House of Lords is, as for all practical purposes it is, a court acting (subject to some derogations) as the supreme court of the United Kingdom and as such entirely independent of the legislature, it should be so established as to make clear both its purely judicial role and its independence. The present position can mislead the ill-informed. When, for example, the Pinochet case was appealed to the House of Lords some foreign observers mistakenly thought that the issue had ceased to be a judicial and had become a political one.

The second is a practical reason. As a committee of the House, the accommodation, resources and facilities made available to the law lords are determined by the House authorities. In some respects these facilities are excellent; in others they are certainly not. I doubt if any supreme court anywhere in the developed world is as cramped as our own. This is not the product of spite or malevolence or public parsimony. It is the result of an acute shortage of space available to the House of Lords in the Palace of Westminster and a wholly understandable precedence given by the House authorities to those who manage and work in the legislative chamber. The House of Lords is, after all, a branch of the legislature, and not a court. The needs of legislators come first. This is, as I say, understandable and, from the point of view of the House, not unreasonable. What is unreasonable, as I would suggest, is that decisions directly affecting the administration of justice at the highest level should be made by those who have no responsibility, and no primary concern, for the proper functioning of our supreme court. In the end it seems likely that the pressure on space will be decisive: not for the first time, constitutional reform may be the child of administrative necessity.

In conclusion, I would apologise for the over-indulgent length of this discourse. But only half-heartedly. For these are important, topical and long-term issues, bearing on the future of our nation. They deserve our attention. Our constitution neither is nor should be static and immobile. The challenge is not to avoid change but to direct it. As Jefferson observed,

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Endnotes

1. Speech to Labour Party Conference, 4 October 1994.
2. Unfinished Business: Implementing Labour's constitutional reform agenda for the second term, (May 2001), Constitution Unit (UCL). In preparing this lecture I have relied very heavily on the admirably accurate, comprehensive and objective publications of the Constitution Unit (hereafter "CU").
3. Cabinet Office briefing quoted by Lord Strathclyde, HL Hansard, 21 June 2001, col. 52, repeated by the Leader of the House in a letter to The Times, 24 August 2001.
4. See, for example, The Federalist no 15 (Hamilton): "The Insufficiency of the Present Confederation to Preserve the Union"
5. The State and the Nations ed R. Hazell (2000, CU).
6. Labour Party Manifesto (2001).
7. The Law of the Constitution (5th ed) at pp 162, 164, 166.
8. R. Hazell, An Unstable Union: Devolution and the English Question, State of the Union Annual Lecture (CU) 11 December 20000, at p 7.
9. John Mawson Whitehall, Devolution and the English Regions, July 2000, quoted by Hazell in An Unstable Union at p 7.
10. By Lord Dearing, quoted by Hazell, An Unstable Union, at p. 7.
11. R. Hazell, Three into One Won't Go: the Future of the Territorial Secretaries of State (CU), March 2001.
12. Mark Sandford and Paul McQuail, Unexplored Territory: Elected Regional Assemblies in England (CU), July 2001 at p. 32.
13. John Tomaney, The Regional Governance of England, in The State and the Nations (ed. R. Hazell), at p. 127.
14. Tomaney, op cit., at p. 129; Sandford and McQuail, op. cit., at pp. 30, 62.
15. Sandford and McQuail, op. cit., at p. 30.
16. Quoted in Hazell, Intergovernmental Relations: Whitehall Rules OK?, in The State and the Nations (ed. Hazell) at p. 178.
17. Sandford and McQuail, op. cit., at p. 31.
18. Ibid.
19. Hazel, An Unstable Union: Devolution and the English Question, at p. 7.
20. Unexplored Territory: Elected Regional Assemblies in England.
21. Sandford and McQuail, op. cit., at pp. 39, 54.
22. Sandford and McQuail, op. cit., at pp. 40, 37.
23. Ibid., at p. 39.
24. CM 4090-1, October 1998, at p. 2, para. 6
25. Op. cit., at p. 13, paras. 45-47.
26. A House for the Future CM 4534, January 2000.
27. I have derived immense benefit, and have relied heavily, on Meg Russell, Reforming the House of Lords: Lessons from Overseas (CU) OUP, 2000.
28. Russell, op. cit., at p. 30.
29. Ibid., at pp 26-28.
30. Ibid., at p. 25.
31. "Some Thoughts on Parliamentary Reform", in Constitutional Reform in the United Kingdom: Practice and Principles (Centre for Public Law, University of Cambridge).
32. Russell, op. cit., at 296.
33. Russell, op. cit., at p. 33.
34. Russell, op. cit., at p. 32.
35. Russell, op. cit., at pp 116-117. Members of the German Bundesrat are not paid as such, but already receive salaries as ministers of the Länder which they represent.
36. Russell, op. cit., at pp 29-31.
37. Russell, op cit., at pp 69, 80.
38. Russell, op. cit., at pp 63-64, 80.
39. Russell, op. cit., at pp 91-96.
40. Russell, op. cit., at p. 96-98.
41. Op. cit., at pp 10-11, paras 1.4, 1.5.
42. Russell, op. cit., at p. 266.
43. Russell, op. cit., at pp 36, 59, 121.
44. Ibid., at 226.
45. Op. cit., at p. 4, para. 14.
46. Op. cit., at pp 59, 183, para 6.5 and Recommendation 25.
47. Russell, op. cit., at pp. 53, 89.
48. Ibid., at pp 91, 225
49. Ibid., at pp 229-231
50. Op. cit., at pp 122-127, 188-189, paras. 12.26-12.42, Recommendation 76.
51. Op. cit., at pp 102, 187, para 10.25, Recommendation 67.
52. Russell, op. cit., at pp 26-28.
53. Ibid., at p. 327.
54. Op. cit., at pp. 100, 186, para. 10.18 and Recommendation 63.
55. Draught for the Organization of Judicial Establishments, Works IV 381.
56. No. 76: The Appointing Power of the Executive; and No. 78: The Judiciary Department.
57. The Federalist, No. 76.
58. Op. cit., pp. 93, 186.
59. L'Esprit des Lois, vol I.
60. The Federalist, No. 81

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