Law and Lawyers: A codified constitution?

Thursday, 28 November 2019

A codified constitution?

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 behaviour expected of individuals in particular situations. For example, it is by convention that Royal Assent is not withtheld for a bill which has passed through all its parliamentary stages. Another example is that, by convention, Her Majesty 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.

Constitutional reform continues to be on the radar of the various political parties contesting the 2019 election but the proposals on offer fall short of making a 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. 21 years later, the future of the Act cannot be said to be a settled issue in British politics. The 3 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, 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 Parliament rests with the Crown. It is a "Royal Prerogative" power which, in modern constitutional practice, is exercised by HM The Queen on the advice of the Prime Minister and, by convention, she is bound to accept such advice. The Prime Minister decided that he wanted a prorogation. A Privy Council meeting was duly held at Balmoral and issued the order to prorogue Parliament. 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 body which represents the people and is able to hold Ministers to account.

Another remarkable fact is that the Cherry / Miller litigation was a judicial review brought by individuals and not by Parliament even though Parliament was the body directly affected. Judicial review is an expensive and difficult process but there was a considerable element of "crowdfunding" in support of 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 (required by Article 50 of the Treaty on European Union) that the UK had decided to leave the EU. The Supreme Court held 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 politicians and lawyers 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 - previous 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."

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.

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.

Needless to say, there is already a massive amount of literature on this subject and the following links are inevitably 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

25 November 2019 - Better Human - Podcast by barrister Adam Wagner - The UK's Dark and Dangerous Constitution

Channel 4 video 29 October 2019 - Does Britain need a written constitution after Brexit?

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

Euronews 13 September 2019 - Does the UK need a written constitution?

On 29 August 2019, an article by barrister Adam Wagner appeared in The New Statesman - Brexit crisis shows why UK finally needs 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."

2nd Report - A new Magna Carta? | PDF version 2nd Report - A new Magna Carta? (