20 October, 2020

A Codified Constitution for the UK ?

 Introduction:

The United Kingdom's constitutional arrangements are essentially political in nature as opposed to being based on a legally binding formal (or codified) constitution. 

The political nature of the arrangements continues to be true even though there are a number of "constitutional" Acts of Parliament such as those creating devolved legislatures / government for Scotland, Wales, and Northern Ireland.  

One consequence of the political nature of the arrangements is that conventions play a considerable part by setting out the usual course of action to be adopted in particular situations. Conventions are not rules of law and the courts, whilst recognising their existence, do not enforce them. 

It will suffice to give three examples of conventions -

1. By convention, Royal Assent is not withheld for a bill which has passed through all its parliamentary stages.  

2. By convention, the Monarch appoints as Prime Minister the individual who appears most likely to be able to command a majority in the House of Commons - normally the leader of the political party which has gained the most seats at a general election.

3. The so-called Sewel Convention is to the effect that the UK Parliament will not normally legislate for devolved matters without the consent of the devolved legislature - see Miller 1 [2017] UKSC 5 at paras 136 to 151. At para 151 the court stated - " ... we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law."

Reform:

The absence of a formal constitution has the result that major changes can be made by any political party which is able to get legislation through Parliament.

There have been many such changes including the introduction of devolved government (e.g. Scotland Act 1998), changing the composition of the House of Lords (House of Lords Act 1999), requiring fixed-term parliaments (Fixed-Term Parliaments Act 2011). The latter Act was repealed by the Dissolution and Calling of Parliament Act 2022.

The present system offers the advantage of flexibility enabling, if necessary, rapid response to altered circumstances. Nevertheless, changes may be unwanted by a majority of the people and any constitutional institution, rule of law, or other arrangement is at the mercy of Parliament. There is nothing that is legally "entrenched" so as to place change beyond ordinary legislation.

Reform continues to be on the radar of the various political parties but, so far, proposals have fallen short of commitment to a formal written, or codified, constitution for the UK even though recent events, particularly in connection with Brexit, have again raised the question of whether such a constitution would be desirable.

It is now 27 years since Lord Scarman called for a written constitution - The Independent 21 July 1992.  He said - 'The rights of the people lack the protection of law against oppression, tyranny and injustice if threatened by a prejudiced or frightened political party in control of the Commons. The risk is real: and our constitutional insurance is weak, limited and very fragile.'

That view still has resonance today even though the Human Rights Act 1998 was subsequently enacted to require public bodies to apply the European Convention on Human Rights. 24 years after its enactment (and 22 years after it came into force), the future of the Act cannot be said to be a settled issue in British politics.  

The 6 years since the EU referendum have also revealed crucial problems with the present constitutional arrangements and, in particular, the relationship between Parliament, the Executive, and the Courts.

Background:

In September 2019, the Supreme Court, sitting with 11 Justices, decided Cherry / Miller 2 [2019] UKSC 41. A single, unanimous, judgment was handed down by the court's President - Lady Hale of Richmond - in which it was held that the purported prorogation of Parliament for a period of approximately 5 weeks was unlawful and that Parliament had not been prorogued. Sittings resumed on 25 September 2019 (Hansard).

The legal authority to prorogue (or dissolve) Parliament rests with the Crown. It is a "Royal Prerogative" power which, in modern constitutional practice, is exercised by the Monarch on the advice of the Prime Minister and, by convention, such advice is accepted. (It may be that, perhaps in extreme circumstances, a Monarch could refuse but that possibility is debatable and is not discussed further here). 

The Prime Minister (Boris Johnson) decided that he wanted a prorogation. A Privy Council meeting was duly held at Balmoral and an Order in Council to prorogue Parliament was issued.  Prior to Cherry / Miller 2, it was thought, on the basis of dicta by Lord Roskill in the GCHQ case, that the exercise of the power to prorogue Parliament was non-justiciable.  Nevertheless, it was remarkable that the Prime Minister, the Privy Council and much legal opinion considered it to be entirely lawful to close down for a lengthy period the one institution which represents the people (House of Commons) and is able to hold Ministers to account.

Another remarkable fact is that the Cherry / Miller litigation was a judicial review brought by individuals even though Parliament was the body directly affected. Judicial review is an expensive and difficult process and considerable "crowdfunding" was required to finance the action. It would not have been possible to bring the case without such determined individuals and funding.

The Cherry / Miller case is a good example of the type of difficult legal question which can arise under the United Kingdom's constitutional arrangements. The earlier Supreme Court judgment in Miller / Dos Santos [2017] UKSC 5 provides another example. 

The question was whether the Prime Minister could, under Royal prerogative treaty-making powers, give notice (as required by Article 50 of the Treaty on European Union) that the UK had decided to leave the EU. The Supreme Court held (by a majority of 8 to 3) that an Act of Parliament was required to authorise the notice. That was because the legal rights of citizens would be affected by withdrawal from the EU.  (Many lawyers, politicians, and three Supreme Court Justices held the view that the government had the power to give the notice and that an Act of Parliament was not required).

Constitutional questions do not arise solely in connection with matters of high policy such as Brexit. In 2017, the Supreme Court decided the UNISON case [2017] UKSC 51. The case concerned the Employment Appeal Tribunal Fees Order 2013 which imposed fees in respect of proceedings in employment tribunals. In the Supreme Court it was recognised that the right of access to justice was not an idea recently imported from the continent of Europe but had for a long time been "deeply embedded in our constitutional law" - Lord Reed at para 64. The Fees Order was held to be unlawful under both domestic and EU law because it had the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful ab initio, and had to be quashed - Law and Lawyers post 27 July 2017.

The uncodified constitution:

In Cherry / Miller 2, Lady Hale of Richmond PSC said - (at para 39) - "Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a constitution, established over the course of our history by common law, statutes, conventions and practice."

On the basis of such high authority, that is the generally accepted view of the legal profession even though it may be thought preferable to refer to "constitutional arrangements" rather than "the constitution."

This accretion of common law, statutes, conventions and practices is the subject-matter of the Constitutional Law textbooks but, for the majority of citizens, the arrangements are shrouded in mystery. It is unsatisfactory that important constitutional matters are not entirely easy to explain to non-lawyers. There are areas of considerable difficulty and uncertainty requiring the intervention of "experts" who, when setting out their views on some important matter, appear like the High Priests of some ancient religion explaining arcane rituals. 

The question must therefore be asked - "Should the United Kingdom adopt a written (or codified) constitution?"  A written or codified constitution would be one that is found in a readily accessible document - e.g. Constitution of the Republic of Ireland.

There are significant obstacles in the way of such a major reform but formal constitutions have been adopted in other nations - for example, Ireland. Matters to be addressed include:

1. How to prepare the constitution - who will prepare the document, what will be in it, what will be left out.

2. How will it be adopted - ordinary legislation would leave the constitution at the mercy of the latest set of politicians to hold power at Westminster.

3. How would it be changed - because, from time-to-time, change will be necessary.

4. How would it be interpreted - the judiciary thereby assuming a more powerful role.

Formal constitutions can be very lengthy if they attempt to deal with every possible eventuality. Alternatively, they may be written in broad terms leaving much to be interpreted by the judiciary and implemented by politicians.

Needless to say, there is already a massive amount of literature on this subject and the following links are just a selection but they set the scene and present some of the arguments each way.

Recent links:

Policy Exchange 28 December 2019  Professor Richard Ekins - Protecting the Constitution

Rightsinfo - 24 September 2019 - Brexit: Does the Supreme Court Ruling Mean It's Time for a Written Constitution?

Prospect Magazine 2 April 2019 - Does Britain need a proper constitution?

Older links:

Institute for Government - December 2016 - Do we need a written constitution? You're asking the wrong question.

UCL Constitution Unit 19 March 2015 - To codify or not to codify (pdf 48 pages) and Codification of the UK Constitution is not essential

The House of Commons Political and Constitutional Reform Committee (PCRC) looked at the pros and cons of a codified constitution. The Committee was in operation during the 2010-15 Coalition government and was replaced in 2015 by the Public Administration and Constitutional Affairs Committee.  From a reform viewpoint, the removal of the PCRC is a matter of some regret - see Democratic Audit 26 May 2015.

In 2014, the PCRC issued a report setting out the arguments for and against a written constitution but stated that it was "deliberately not supporting a position for or against a codified constitution, believing it is for the British people ultimately to decide that question."

Institute for Public Policy Research - The Constitution of the UK - 1991

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