Critically Assess the Arguments for and against the
UK Adopting a Codified Constitution
©Barry Gilheany
A constitution is a formal document or set of
documents that sets out the governance relationships of the state; it regulates
the roles of and relationships between the central executive, the legislature,
the judiciary, organs of local government and other state agencies. It also
prescribes the rights and duties of the citizenry. Ideally a constitution should contain the
fundamental principles upon which the state exists and should enshrine its
fundamental values (Beatson, 2010). The UK does not differ from other states in
that it does define or codify the relationships between the organs of
government and those between the state and the individual. However the UK constitution is exceptional in
that it is not embodied in a formal document like the American Constitution of
1787 or the German Basic Law of 1949 (McEwan, 2003). Rather it is a variegated mix of
institutional practices; of history, culture, custom, tradition and politics,
reflected in conventions, procedures and protocols as well as within the corpus
of statute and common law (Beatson 48).
The fast pace of constitutional change since 1970 in a country where
constitutional developmental has traditionally been of an evolutionary and
incremental nature has generated fresh debate on whether the UK should formally
codify its constitution (McHarg, 2010;
Parpworth, 2012). Over the past four
decades, the following constitutional changes have occurred: accession to the
EEC (as was), increased use of judicial review, devolution to Scotland, Wales
and Northern Ireland, the Human Rights Act 1998, the use of popular
referendums, fragmentation of the political party system alongside class
dealignment patterns of voting, use of new electoral systems to elect members
of the European Parliament and Scottish Parliament and the Welsh Assembly,
reform of the House of Lords, the changing position of local government and the
creation of a new local authority for London (Parpworth 12-13). Alongside these unprecedented politico-legal
trends have been the social trends towards multiculturalism and secularism in
which people led more divergent lifestyles (Bogdanor, 2009) and a progressive
erosion of deference towards Parliament as people demand more individual rights
(Bogdanor 55) . This growing disdain towards established political processes
reached its apogee with the public outrage over the parliamentary expenses
scandal in 2009 (Beatson 48)
This paper critiques the arguments for and against a
written or formally codified constitution for the UK. It takes on board many of the criticisms that
have been made of the traditional constitutional structure in the UK but
acknowledges that governments now or in the near future are unlikely to accede
to demands for a full-blown written constitution. It therefore endorses a kind of hybrid model
proposed by the Joint Committee on Constitutional Affairs which combines the
best features of both.
As traditionally understood, the British
constitution is neither antecedent to
particular laws and rules within the state, which many regard as the essence of
a constitution, nor formally embedded.
As a result, there was a tendency by some commentators, like Nevil
Johnson[1]on
the constitution to believe that “the constitution is not expressed or
understood primarily in legal categories” (Beatson, p49) in the process
dismissing not only the import of decisions of from Entick v Carrington in 1765 to Anisiminic
in 1969 and GCHQ in 1984[2]
but also the work of legal scholars headed by A.V. Dicey (Beatson, 49). Dicey’s book, An Introduction to the Study of the Law of the Constitution, first
published in 1885 is, like Walter Bagehot’s book The English Constitution of 1867, a classic work. But unlike Bagehot’s praise for the union of
the executive and legislative powers, in contrast to John Stuart Mill’s
suggestion of a separation of powers in his book Conditions on Representative Government (1861), Dicey’s analysis of
the legal underpinnings of the structure of the constitution, separated three
fundamental principles – the sovereignty of Parliament, the rule of law and the
role of constitutional conventions. Of
these the most important was the sovereignty of Parliament meaning that ‘no person
or body is recognised by the law ... as
having the right to override or set aside the legislation of parliament’ (Bogdanor,
2009). Dicey stated that conventions
were ‘a body ... of constitutional or
political ethics… the morality of the constitution.’ Constitutional writers[3]
since have argued that “convention” implies some form of agreement, whether
express or implied with a single precedent within being good enough to
establish the rule.[4] Thus the real issue for legal and political
authorities is whether conventions may
be have their authoritative source in
an explicit declaration so that they can be regarded as binding no matter what
prior or subsequent constitutional practice (McHarg, 2008).
So the case for an unwritten or informally codified
constitution for the UK rests on this tripod of sovereignty residing in
Parliament, rule of law and conventions. In reply to arguments that a fully
codified constitution would act as a greater break on the executive and ensure
greater democracy within the body politic , defenders of the existing constitution argue that it has been a success for years and
has produced a stable government in terms of democracy, transparency and human
rights (Parpworth, 2012).To codify the constitution to make clearer the rules
and principles that are the foundation of the state as the precise content of
the constitution would be difficult to
determine. For example, to include
non-written sources such as conventions as legally binding obligations would be
disadvantageous as they are not only difficult to define but would they would
also lose their essence of binding purely on a non-legal basis. Furthermore the fact that the British
Constitution is based on parliamentary sovereignty raises the spectre of a
direct clash between parliamentary sovereignty or a written constitution were
the constitution to be codified. (Reynoso, 2014).
It is further argued that if the conventions are
ignored, severe political repercussions will most likely follow such as the
crisis after the rejection by the House of Lords of the Finance Bill in 1909;it
had been the convention since the 17th century that finances were an
exclusive prerogative of the Commons and eventually the Parliament Act of 1911
incorporated the convention into primary legislation Were the constitution to be codified then, it
would be deprived of one of its flexibility; a quality that enables
constitutional change to be made according to prevailing social and political
circumstances. For example, a
constitution, drafted in 1830, would have included declarations about the House
of Lords and voting rights which would have been made redundant by the Great
Reform Act of 1832. Also, the constitution’s flexibility allows straightforward
change within the constitution while not affecting its legal aspect. An example of this would be the creation on
the ‘Sewel Convention’ in 1999, which prohibited Parliament from legislating on
matters devolved to the Scottish Parliament without its prior consent (Reynoso 2).
A main purpose of a codified constitution is to
fortify the doctrine of constitutionalism, the doctrine that government ought
to be constrained by certain fundamental principles. Constitutionalism or the
development of a constitutional sense has traditionally had little purchase in
British politics. This has largely been due to the absence of a ‘constitutional
moment’ or new beginning in British society such as national independence from
colonial occupier. Furthermore, there has been in Britain, until recently, no
such thing as fundamental law or no clear-cut delineation between what is constitutional
and what is not (Bogdanor 13-21).
However, as alluded to in the introduction,
developments affecting the UK polity over the last four decades have called
into question the utility of traditional British constitutional arrangements. The
accession of the UK to the European Community clearly led to a diminution of
the sovereignty of Parliament in the European Communities Act 1972 which
provided for the recognition of all directly enforceable Community law in
preference to any Act of Parliament Community
law decisively trumped Westminster legislation in the second Factortame case in 1991,[5]
where the House of Lords upheld an action taken by Spanish fishing-boat
companies in the British courts in claiming that the Merchant Shipping Act of
1988 which restricted the right of foreign-owned vessels to fish in British
waters was incompatible with the European Communities Act (Bogdanor 28). Over
270 adverse judgments against Britain by the European Court of Human Rights
showed that the British legal system was failing to protect sufficiently legal
rights and the willingness of the British judiciary to have regard for the case
law of the unincorporated European Convention of Human Rights (ECHR) created a
groundswell of opinion for just such an incorporation into UK law of the ECHR
in the Human Rights Act of 1998 (Lester, 2011).
Other forces bearing pressure on the British
constitution came from the demand for devolution for Scotland and Wales and the
granting of referendums to deliberate on therein, the realisation of
inapplicability of the Westminster model of alternate majoritarian governments
to Northern Ireland with its ethnic conflict where proportional representation
was introduced for elections, the use of alternative voting systems to the
straight vote to the European Parliament and Scottish Parliament and Welsh
Assembly; the decline in the two party duopoly in British politics after the
“Hung Parliament” in 1974; the seemingly untrammelled use of executive power by
the ruling Conservative Party between 1979 and 1997 based on a minority of
votes cast in general elections; the growing voices of women and ethnic
minorities who were not being heard by an increasingly unrepresentative House
of Commons (Bogdanor 24-49) and lastly the waves of constitutional reform under
taken by Labour governments between 1997 and 2010 encompassing the Human Rights
Act, devolution to the Celtic peripheries; the disqualification of hereditary
peers from voting in the House of Lords; the abolition of the office of the
Lord Chancellor and the creation of the Department of Constitutional Affairs
and its replacement in turn by the Ministry of Justice (Beatson 52 – 58).
With the possible exception of the devolution
arrangements for Scotland, Wales and Northern Ireland, the Human Rights Act
(HRA) 1998 has proved to the most dramatic and far reaching of New Labour’s
constitutional innovations. It incorporates the European Convention of Human
Rights (ECHR) drawn up by the Council of Europe in 1950. It sets out the
fundamental rights and freedoms that individuals in the UK have access to.[6]
Anthony Lester argues that the HRA reconciles the sovereignty of Parliament
with the effective protection of ECHR rights by requiring the courts where
possible to lead and to give effect to legislation in a way compatible with
Convention Rights and by requiring public authorities other than Parliament –
including the courts – to respect and uphold these rights (Lester, 2011).
Section 3 of the HRA is pivotal. It imposes a duty
on courts and tribunals to strive to avoid incompatibility between domestic
legislation and the ECHR. Case law on s.3 has established fundamental
principles to be applied when construing legislation to make it compatible with
Convention rights. In ReS (Care Order:
Implementation of Care Plan), Lord Nicholls of Birkenhead stated that s.3
is a ‘powerful tool whose use is obligatory. It is not an optional canon of
construction.’ Lord Bingham of Cornhill approved ReS in R. (Anderson) v Secretary of State for the Home Department
but warned that s.3 allowed for judicial interpretation but no ‘judicial
vandalism’ so as to give the statutory provision ‘an effect quite different
from that which parliament intended’.
Twenty-six declarations of incompatibility have been
made since the HRA came into effect. The HRA contains a specific mechanism for
making swift remedial orders (s.10, Schedule 2) to remedy incompatibility. Examples of the implementation of this
mechanism were the clause inserted into the Nationality and Immigration Act
2002 in response to a Court of Appeal ruling striking down the provision in the
Immigration and Asylum Act imposing automatic penalties on carriers bringing
clandestine immigrants into the UK under Article 6(2) of the HRA[7]
and the repeal of relevant provisions of the Anti-Terrorism, Crime and Security
Act after the House of Lords ruled them incompatible with ECHR, Articles 5 and
14[8].
Lester concurs with Lord Steyn’s view that in strengthening the rule of law and
separation of powers in the UK, it has, in effect, made Britain a
‘constitutional state’. Unless governments now and in the future take on board
the reality of the HRA as a constitutional measure which supersedes ordinary
legislation which he does not see as likely, he argues that the case for a new
constitutional settlement will become compelling.[9]
(Lester 80-88).
What has characterised the reform process has been
its fragmented nature. The reformed
constitution remains a mixture of statute, convention and judicial
decisions. The formal position whereby
sovereignty continues to reside in the UK parliament has been moderated in a
classic manner through concordats between the UK government and the devolved
administration. The process continues to
park difficult problems such as reform of the House of Lords, the West Lothian
question over the issue of Scottish MPs voting on legislation affecting only
England and vice versa and changes to the electoral system for the Westminster Parliament.
Governments continue to revisit an issue relatively soon after dealing with it
e.g. the government returned to the topic of judicial appointments after the
Constitutional Reform Act 2005 and the setting up of the Judicial Appointments
Commission (JAC) (Beatson 57-64).
McHarg argues that these key reforms will be
implemented not by legislation but by creating new ‘declared conventions’ best
understood as a form of constitutional ‘soft law’ which attempt to influence
constitutional behaviour rather than generating binding reforms (McHarg 855
Unless they are translated into ‘a consistent and reasonably persistent
constitutional practice’, she states, the various changes announced in the 2007
Green Paper The Governance of Britain cannot
be regarded as creating constitutionally binding rules. For example, the Green Paper states that in
relation to the proposal that the Prime Minister should gain the consent of the
House of Commons, if changes are agreed, the Prime Minister will announce the decision
to Parliament and this will, through
precedent become constitutional convention. It could even be argued that
the war prerogative post the decision to go to war in Iraq in 2003 whereby the
Government seeks a commitment to gain Parliamentary consent before engaging in
armed conflict is simply a confirmation of an existing convention (McHarg 861-862).
The strengths of the case for codifying the UK
constitution therefore rest on the need to redress the power of the executive
and the willingness of governments to revisit constitutional decisions so
frequently which leaves the constitution in danger of becoming, in the
memorable words of Thomas Hutchinson in 1768 when he was Lieutenant-Governor
and Chief Justice of Massachusetts, “a mere rope of sand”. (Beatson 71). As
governments and oppositions remain committed to the retention of
parliamentary sovereignty albeit with much greater scrutiny of the executive
branch, codification of the UK constitution as per written constitutions
elsewhere appears to be still a remote possibility, the Human Rights Act, with
its provision for a court to declare that a legislative provision in
incompatible with Convention rights, but no power to set aside that
legislation, provides a model that combines the best elements of both the
traditional UK uncodified constitution and written models. This is the model for a UK Bill of Rights
favoured by the Joint Committee (Beatson 67). However, growing centrifugal
pressures of the type that this paper has discussed may yet raise the prospect
of a ‘constitutional moment.
This paper has critically analysed the arguments for
and against the adoption by the UK of a codified constitution. It has posed the question of whether the
traditional constitutional arrangements are fit for purpose for the Britain of
the 21st century and has concluded that, despite the imperatives to
constitutional reform over the last four decades and New Labour’s reforming
zeal, governments will remain very reluctant to break with the past. The optimum solution to the issues raised in
the debate may well be the ‘half-way house’ model of the UK Bill of Rights
deriving from the jurisprudence of the Human Rights Act.
Bibliography
A v
Secretary of State for the Home Department.
J
Beatson, ‘Reforming an unwritten constitution’, Law Quarterly Review (2010) 48
48 – 71
V
Bogdanor, The New British Constitution (Oxford:
Hart Publishing 2009)
A
V Dicey, The Law of the Constitution
(London: Macmillan and Co Ltd 1959)
A
Lester, Human Rights and the British
Constitution from J Jowell and D Oliver, The Changing Constitution (7th edn, Oxford University Press, Oxford
2011)
A
McHarg ‘Reforming the United Kingdom Constitution: Law, Convention Soft
Law’ The Modern Law Review (November
2008) 71 6 853-877
International
Transport Roth GmbH v. Secretary of State for the Home Department
N
Parpworth (ed.), Constitutional and
Administrative Law (Oxford: Oxford University Press 2012)
I
Reynoso, Should Britain adopt a written
constitution? (London: King’s College, London 2014) http://kslr.org.uk/blogs/constitutionallaw/2014/01/14/should-britain-adopt-a-written-constitution
ReS (Care Order:
Implementation of Care Plan)
©
Barry Gilheany
[1] N. Johnson , Reshaping the
British Constitution (2004) at p.10
[2] Entick v Carrington (1765)
19 St. Tr. 1030 KB; Animisic v Foreign
Compensation Commission [1969] 2 A.C. 147 HL; Council of Civil Service Unions [1985] A.C. 374 HL.
[3] For example L. Jennings, The
Law and the Constitution (London: University of London Press Ltd, 5th
ed 1959) 80 and E.C.S. WADE ‘Introduction’ in A.V. Dicey, Introduction to the Study of the Law of the Constitution (London:
Macmillan and Co, 19th ed, 1962) clii; Sampford, n 29 above, 401)
[4] Jennings, 134-136
[5] R v Secretary of State for Transport, ex p. Factortame (No 2)
[1991] 1 All ER 70; [1991] 1 AC 603
[6] They include right to
life, freedom from torture and inhuman or degrading treatment, right to liberty
and security, freedom from slavery and forced labour, right to a fair trial, no
punishment without law, respect for private and family life, freedom of
expression, right to marry and start a family, right to education, freedom of
assembly and association, protection from discrimination in respect of these
rights and freedoms, right to peaceful enjoyment of one’s property and right to
participate in free elections. http://www.equalityhumanrights.com/human-rights/what-are-human-rights.
[8] A v Secretary of State for
the Home Department.
[9] He
proposes a Great Charter of Rights and Freedoms, enacted with popular as well
as parliamentary consent and drawing upon the ‘more open textured language of
the International Covenant on Civil and Political Rights and the Bills of
Rights of other Commonwealth democracies, such as South Africa, to more closely
align Britain to the other 46 states parties to the ECHR who all have written
constitutional Bills of Rights protecting Europe’s citizens against the misuse
of public powers.
No comments:
Post a Comment