This essay on UK constitutional law has been written in May 2014. Many things have happened in the meantime, giving birth to a plethora of constitutional issues: the Scottish independence referendum, the European Union membership referendum, the case of R (on the application of Miller and another) v Secretary of State for Exiting the European Union, prerogative powers, Henry VIII clauses, the role of devolved administrations, the triggering of Article 50 — and the list could go on.
Even with these developments (some of them so important as to change the relations of the UK with other countries), issues presented herein are still relevant. However, this essay needs to be read keeping in mind the realities of up to mid-2014.
Introduction
What is a constitution? In short, it is a system of government that creates, regulates and guides the institutions of a state, regulates the relations between institutions, and also the relations between those institutions and citizens they govern[1]. To this extent, it may be said that the vast majority of states have a set of rules which allow them to function, and which are arguably acting as their constitution. A constitution does not have to be democratic, in the current sense of the word: totalitarian states like North Korea, Belarus or Saudi Arabia[2] have a constitution or a set of basic laws which underpin their governance. It can be argued that a constitution cannot be always held as a paragon or defender of democracy[3].
As documents regulating and conducting the affairs of state and guaranteeing the rights of the citizens, constitutions are generally quasi-immutable, entrenched documents. This is especially so if the constitution is seen as the supreme law of the land, and “all other forms of domestic law are inferior to the constitution and should abide by principles contained in the constitution.”[4] A short survey, from the US to France and Romania, shows that the amending procedure is very difficult, with only 27 amendments approved since the enactment of the American constitution[5]. In contrast to the majority of other constitutions, that of the UK “is not entrenched. In consequence, it is relatively flexible, in the sense that any aspect can be changed by way of ordinary legislation”[6] — to be discussed later.
Modern constitutions tend to be written — or, rather, codified — documents. As noted by Adam Tomkins in Public Law (Oxford: OUP, 2002), “written constitutions do not happen by accident”, they are the product of specific events, such as revolutions, independence[7], unification or dissolution of a country, or just a way of modernising the state[8].
It is generally accepted that the only countries in the world without a codified constitution are the United Kingdom, New Zealand and Israel, although both New Zealand and Israel “have passed some kind of single special entrenched document setting out the rules of the game”[9] relatively recently. The difference between a written and an unwritten constitution is, as observed by Tomkins and others, purely formal. In these conditions, it can be said that the UK does possess a constitution, albeit not codified in a single document[10]. The reason for it is that in the United Kingdom, since the Civil War of mid-17th Century, the Glorious Revolution, and the Act of Union 1707, there have been no other major social and political upheavals that asked for a clean slate. “The constitution has thus remained uncodified precisely because there has never appeared to be a genuine ‘constitutional moment’”[11].
Nevertheless, voices on all sides of the political spectrum have started to call for a codified constitution, and it appears — as shown below — that one of the main reasons for an entrenched, supreme law of the land is the fear that a government (or parliament, or the royal family) might one day give in to dictatorial tendencies, and turn the country into an authoritarian, anti-democratic state.
Constitution and the Rule of Law
In his ‘Rule of Law’ lecture in 2006, Lord Bingham maintained that “the law must be accessible and so far as possible intelligible, clear and predictable[12]. By this, he openly subscribed to Joseph Raz’s principle that states that the rule of law, in order to guide people, needs clarity[13]. N.W. Barber also believes that “it might be argued that clarity in this area would be a good thing: people are entitled to know where constitutional powers lies within the system”[14]. It is arguable that the United Kingdom is guided by the rule of law — however, the issue of clarity needs further explanation once the discussion veers to the subject of the United Kingdom’s constitution, which is generally described as being “unwritten”. To avoid misunderstandings, academics from Tomkins to Bogdanor and Vogenauer often clarify that the constitution it is written, but not codified; there is no single document called The Constitution of the United Kingdom. For some commentators, “that is a relatively trivial, formal matter” [15]. For others, it can amount to a democratic deficit[16], to a document which is not mandated “by the people” — in the sense that the American constitution, or other progressive democracies’, are.
Voices from both sides of the political spectrum have demanded a codified constitution, but their reasons can be conflicting. In 2008, Jack Straw, the Labour Home Secretary at the time, sent out a strong signal that the government was ready to draw up Britain’s first written constitution — as quoted in a BBC news item[17]. This was a clear follow up of a 2007 Green Paper, which declared that a codified UK constitution might “clarify not just what it means to be British, but what it means to be the United Kingdom”[18]. It also came from Labour’s philosophy developed from its time in opposition (1979 to 1997) that “constitutional checks and balances might be of value in helping to control what had become … an elective dictatorship,”[19] namely a Parliament which is subservient to the Executive.
This particular term, elective dictatorship, was popularised in the 1970s by Lord Hailsham as a warning to the dangers of what he perceived to be an excessively authoritarian Labour government[20]. In time, elements from the Left and the Right got to see in a codified constitution a guarantee of strong checks and balances against the Government, a means of reforming the British state and making it more accountable to its citizens, to the people. The Left desires more inclusivity, with all strata of society having their say on the way the affairs of state are conducted[21], while the Right wants “Parliament [to] revert to its original role, of protecting us from government power, rather that extending it.”[22]
It appears that the common goal is to protect citizens from all abuses of power. But to achieve this, constitutional changes cannot be just a matter of form — from a constitution found in a multiplicity of documents to a single code — there must be changes of substance as well. Demands for change included, among others: reforming the House of Lords (from modernisation to abolition), a guarantee of the protection of human rights and fundamental freedoms, the creation of an independent judiciary to protect the constitution or to strike down laws as being unconstitutional[23], fixed term parliaments[24], Parliament’s control over (some) prerogative powers. Some of these desiderates have been accomplished, such as the introduction of the Human Rights Act 1998 and then of the House of Lords Act 1999 that removed the right to hereditary peerage, under Labour; the Fixed-term Parliaments Act 2011 came under the Coalition. Some issues still need to be addressed, such as parliamentary control over prerogative powers. As early as 1998, Labour’s Tony Benn introduced the unsuccessful Crown Prerogatives (House of Commons Control) Bill 1998 which asked that the government would need to seek the Commons’ assent before using specific prerogative powers, such as declaring war, making peace “and more generally to exercise all other executive powers not conferred by statute.”[25]
It was said of some reforms enacted by post-1997 governments that they were “reform by stealth” — to use N W Barber’s turn of phrase — because the electorate was not consulted by referendum or otherwise: “constitutional reform by stealth; hidden change effected without proper public debate” [26]. Linda Colley, writing in The Guardian, agreed: “many of these changes have been rushed through without much attempt to inform the public about what is at stake, and with only limited efforts to seek wide ratification for them”[27]. However, the two commentators are on the opposing sides of the barricade; it is enough to look at the titles of the articles from which these quotations have been extracted — “Against a Written Constitution” and “Why Britain Needs a Written Constitution”, respectively.
One of the arguments brought by those against a written constitution, is that it would be physically difficult to codify the existing set of rules, the vastness of the current system would pose a great problem to the new constitutional drafters, namely that of what to include and what to leave out[28]. Bogdanor and Vogenauer suggest that “a selection … would need to be made amongst those laws and perhaps also conventions so as to isolate those which express ‘‘constitutional principles and procedures””[29]. Iain McLean argues that unelected houses, monarchs, and established churches[30] should be left out. Even the proponents of the codified form admit that the task ahead is not easy, and that “the process could take 20 years and depend on a referendum”[31]. Then, there is the issue of conventions, which might not be turned into constitutional articles, that is — court-enforced law[32].
A trenchant and swift reply to all these issues is offered by “radical”, new groups, such the London School of Economics’ project to outsource the writing of the constitution to the public, or the pressure group The Republic, which proposes the all-together abolition of the monarchy and the creation of a new constitution[33]. This might be a step too far in reforming the UK system, especially since polls conducted both for the left-leaning The Guardian and the right-leaning The Daily Telegraph have shown public support for the monarchy at 69% in 2012, and 66% in 2013, respectively[34]. The majority of those who argue for a written constitution are rather demanding a Bill of Rights, “a codifying measure, which would contain in a single piece of legislation all the key constitutional principles and procedures which underpin the governance of the country”[35].
If this will be the case, the 20-year term for the delivery of a new constitution might turn to be too short. Lord Bingham, whose admiration and advocacy for the Left was palpable, noticed in 2006 that “… the sheer volume of current legislation raises serious problems of accessibility” and may, “on occasion … baffle”, such as to be an obstacle into understanding the workings of the government[36]. Three years later, John Baker, a commentator veering to the Right, also referred to the existence of too many pages of legislation [37].
An argument brought by the supporters of the unwritten constitution is that, in its current form, it is flexible[38] and it can be relatively easy to modify by the means of Parliament changing existing statutes or enacting new ones. This is what happened with the introduction of some crucial acts that have changed the way the UK is functioning: Human Rights Act 1998, the devolution acts[39], the Constitutional Reform Act 2005, etc.
As has been observed from A.V. Dicey onwards, Parliament has “the right to make or unmake any law whatever”[40]. But although all laws can be unmade, some of them accede to a special hierarchy that makes them special, constitutional laws. These can be repealed or amended “in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State”, as shown by Lord Justice Laws in his judgment in Thoburn v Sunderland CC. He went on to say that “This development of the common law regarding constitutional rights, and as I would say constitutional statutes, is highly beneficial. It gives us most of the benefits of a written constitution, in which fundamental rights are accorded special respect. But it preserves the sovereignty of the legislature and the flexibility of our uncodified constitution.”[41]
Even if Tomkins warns that it is “a frequent mistake to say that the unwritten nature of the constitution means that [it] is flexible” [42], he agrees that it is a successful one, a key to its success being that it has “managed to achieve a certain balance between continuity and change.”[43]
In his conclusion to the “Against a written constitution”, N W Barber states, in his turn, that “Britain’s constitution has, by and large, been a success. It has produced stable government and — in terms of democracy, transparency, human rights and the provision of social welfare — it compares reasonably favourably with many other constitutions.”[44]
Conclusion
This paper has tried to show that both the case for a written constitution, and that for the current, unwritten constitution of the UK, was argued convincingly by their respective advocates. They occupy opposing positions, but they have in common the knowledge that the task of reforming the UK constitution is difficult.
Successive British governments have managed to make use of constitution’s flexibility in order reform a status quo which was unworkable. Constitutional reforms have been delivered, but more reform is needed. This does not mean, however, that the constitution in its current form needs to be replaced with a supreme law. As N W Barber noted, “[the] various mooted reforms are not connected, and, consequently, it is difficult to see why they should be combined into one document.”[45]
In the spirit of N W Barber’s essay, this paper believes that, instead of having opposing pro and con groups, it is preferable to have a third, non-aligned group “who see merit in each approach”[46].
[1] Tomkins, A, Public Law (2003) Oxford University Press, p. 3
[2] Saudi Arabia’s “informal” constitutional instrument is the Basic Law of Governance promulgated by royal decree in 1992. Article 1 of the Basic Law establishes the Holy Qur’an and the Sunna as the constitution. Basic Law of Governance published in full on <www.saudiembassy.net about/country-information/laws/The_Basic_Law_Of_Governance.aspx >
[3] For example, racial laws were enshrined in various constitutions, most recently in apartheid South Africa. In the former Soviet Union, there was the dictatorship of the proletariat.
[4] Webley, Lisa and Samuels, Harriet (2012) Public Law (second edition) Oxford: Oxford University Press, p. 62
[5] The last amendment was in 1992. As per the official website dedicated to the US Constitution <www.archives.gov/exhibits/charters/ >
[6] Leyland, Peter (2007) The constitution of the United Kingdom: a contextual analysis Oxford and Portland: Hart Publishing, p. 2
[7] Tomkins, A, op.cit, p. 7
[8] In absolutist and theocratic states like Saudi Arabia, the government needed to find a way by which to accord its policies with the workings of the contemporary increasingly globalised world. The preamble to Basic Law of Governance states the king brought about the law “having taken into consideration the public interest, and in view of the progress of the State in various fields”
[9] Mount, Ferdinand (1992) The Recovery of the Constitution Charter 88, p. 2
[10] Tomkins, op.cit. p. 3. Also Bogdanor, Vernon (2009) The New British Constitution Oxford and Portland: Hart Publishing, p. 9
[11] Bogdanor, V, op.cit. p. 11
[12] Lord Bingham, ‘The Sixth Sir David Williams Lecture: The Rule of Law’, delivered on 16 November 2006 at the Centre for Public Law, London.
[13] Raz, Joseph (1979) “The Rule of Law and its Virtue”, in Raz, J. The authority of law: essays on law and morality Clarendon Press, p. 215: “The law must be open and adequately publicized. If it is to guide people they must be able to find out what it is. For the same reason its meaning must be clear. An ambiguous, vague, obscure, or imprecise law is likely to mislead or confuse at least some of those who desire to be guided by it”.
[14] Barber, N W, “Against a Written Constitution” (2008) Public Law, p. 11
[15] Feldman, David (2005) “None, One or Several? Perspectives on the UK’s Constitution(s)” Cambridge Law Journal, Vol. 64, Issue 02, p. 329
[16] The First Minister of Scotland, Alex Salmond, speaking to the Foreign Press Association in London on 16 January 2013.
[17] The BBC (2008) “Straw’s written constitution hint”, BBC News, 13 February. “[the document] would spell out an individual’s obligations to society and place a new emphasis on the concept of civic duty”. Mr Straw was also quoted as saying that “the next stage in the UK’s constitutional development is to look at whether we need better to articulate those rights which are scattered across a whole host of different places and indeed the responsibilities that go with being British.”
[18] The Governance of Britain, Cm. 7170 (July 2007), para. 212, quoted in Bogdanor, V and Vogenauer, S “Enacting a British Constitution: Some Problems” (2008) Public Law, Spring, p. 38
[19] Bogdanor, V and Vogenauer, S, op.cit. In this instance, the elective dictatorship was the Conservative Government
[20] The term became successful almost immediately, and in following years was aimed as an invective both at the right and the left of the political spectrum.
[21] Gearty, Conor (2013) “What would you put in a UK constitution?”, The Guardian, 8 October
[22] Butler, Eamonn (2013) “Should Britain have a written constitution?”, on the blog of Adam Smith Institute, 12 December
[23] Lord Scarman op.cit.
[24] Institute for Public Policy Research (1991) A Written Constitution for the United Kingdom London: Mansell Publishing, p.73
[25] Tony Benn’s bill as quoted in Barnett, Hilare (2002) Constitutional and Administrative Law Cavendish Publishing, p. 174
[26] Barber N W, op.cit.
[27] Colley, Linda (2011) “Why Britain needs a written constitution”, The Guardian, 4 November
[28] Barber N W, op.cit.
[29] Bogdanor and Vogenauer, op. cit., p 40
[30] McLean, Iain (2012) What’s wrong with the British constitution? OUP. The institutions named above give the chapter titles of Part IV, “Things to Leave Out of Written Constitution”
[31] Jack Straw quoted by the BBC (2008) “Straw’s written constitution hint”, BBC News, 13 February
[32] Barber N W, op. cit., p. 14
[33] This paper will not emit any judgments as to the success of these efforts, but will merely record their presence in the constitution debate.
[34] Clark, Tom (2012) “Queen enjoys record support in Guardian/ICM poll” The Guardian, 24 May; Hennessy, Patrick (2013) “Confidence in British monarchy at all-time high, poll shows”, The Daily Telegraph, 27 July
[35] Stephen Hockman, Chairman of the Bar Council for England and Wales, in a letter to The Times, 8 February 2006, quoted in Bogdanor and Vogenauer, op.cit,. p. 39
[36] Lord Bingham, op.cit. For the year 2004, he quoted “some 3500 pages of primary legislation; [and] in 2003, nearly 9000 pages of statutory instruments.”
[37] Baker, J (2013) “The Unwritten Constitution of the United Kingdom” Ecclesiastical Law Journal 15(1), p. 4, at p. 8. The text was first delivered as the British Academy’s Maccabean Lecture in 2009 and was originally published in (2011) Proceedings of the British Academy 167. He put the number at “around 15,000 pages of new legislation every year, and the Labour Government is famously credited with the creation of some 3,000 new criminal offences.”
[38] MacCormick, N (1999) Questioning Sovereignty: Law, State, and Nation in the European Commonwealth OUP, p. 50
[39] Scotland Act 1998, Northern Ireland Act 1998, Government of Wales Act 1998 (later superseded by the Government of Wales Act 2006)
[40] Dicey, A V, The Law of the Constitution (1885), as stated in the “Introduction”
[41] Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) at 62–64
[42] Tomkins, A, op.cit., p. 9–13
[43] Tomkins, A, op.cit., p. 15
[44] Barber N W,. op.cit., p. 18
[45] Barber N W, op.cit., p. 14
[46] Ibid.
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Cases:
R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3
Thoburn v Sunderland City Council [2002] EWHC 195 (Admin)
Other:
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