As codified and uncodified constitutionsPREVIEW
On the face of it, the constitution is the least ‘sexy’ topic in politics. Constitutions appear to be just a collection of rules and, what is more, rules that in the UK are steeped in ancient traditions and customs. Those who are interested in the constitution are people who have a ‘legalistic’ view of politics, an interest in the theory of politics but not its practice. This image, though, is quite wrong. Constitutions are vital to politics, both to its theory and its practice. Indeed, it may be that there is no more important issue in UK politics than the future of the constitution. Why are constitutions so important?
Constitutions exist for one crucial reason: we cannot trust the government or, for that matter, anyone who has power over us. Constitutions, if you like, are a solution to the problem of power. As power tends to corrupt, we need to be protected from those in government, and this protection is provided by a constitution. Without a constitution, the government could simply do whatever it wanted – and this may mean oppressing minorities, violating freedom or even tyrannising the mass of the people. This is why questions about the effectiveness of the constitution are so important. In the UK, these questions are particularly pressing because of the unusual, even unique, character of its ‘unwritten’ constitution. Since the late 1990s, in fact, there has been an upsurge in constitutional reform that is changing forever the way in which the country is governed. How does the UK constitution work? What are its advantages and disadvantages? And how could it work better?
CONTENTS
• Understanding constitutions
- Types of constitution
• The UK constitution
- Sources of the constitution
- Principles of the constitution
- Strengths of the UK constitution
- Criticisms of the UK constitution
• Constitutional reform
- Constitutional reform under Blair and Brown
- The constitution under Cameron and Clegg
- A codified constitution?
A constitution is, most simply, the rules that govern government. Just as government lays down rules for society at large through the laws it makes, so a constitution establishes a framework of rules which are meant to check or constrain government. A constitution therefore gives practical expression to the principle of limited government. Constitutions are a relatively recent development, the ‘age of constitutions’ having been initiated by the establishment of the first ‘written’ constitutions: the US constitution in 1787 and the French Declaration of the Rights of Man and the Citizen in 1789. In both these cases, constitutional government was seen as the solution to the rule of absolute monarchs. The same was true in Britain, where the origins of its ‘unwritten’ constitution can be traced back to the Bill of Rights of 1689 and the Act of Settlement of 1701, both of which helped to transfer power from the king to Parliament in the aftermath of the Glorious Revolution (see p. 8).
Limited government: A form of government in which government power is subject to limitations and checks, providing protection for the individual; the opposite of arbitrary government.
TYPES OF CONSTITUTION
Constitutions may be classified in three main ways:
As codified and uncodified constitutions
As unitary and federal constitutions
As rigid and flexible constitutions.
Codified and uncodified constitutions
Traditionally, considerable emphasis has been placed on the distinction between ‘written’ and ‘unwritten’ constitutions. Written constitutions are, in theory, constitutions that are enshrined in law, while unwritten constitutions are supposedly made up of customs and traditions. The former have been ‘created’, while the latter have been organic entities that have evolved through history.
However, the written/unwritten distinction has always been misleading:
• No constitution is entirely written. No constitution is entirely composed of formal rules that are legally enforceable. Even where written documents exist, these do not, and cannot, define all aspects of constitutional practice. This leads to a reliance on unwritten customs and practices.
• No constitution is entirely unwritten. No constitution consists only of rules of conduct or behaviour. It is a mistake to classify the UK constitution as unwritten, as most of its provisions are, in fact, written. As discussed below, statute law is the most significant source of the constitution.
More helpful (and more accurate) than the written/unwritten distinction is the contrast between codified and uncodified constitutions. A codified constitution is one that is based on the existence of a single authoritative document. This document, the written constitution, lays down (usually in its preamble) the core principles of the system of government. In its main body, it usually outlines the duties, powers and functions of the major institutions of government. It may also include a statement of citizens’ rights and freedoms, possibly in the form of a bill of rights (see p. 295). A large proportion of countries, and certainly virtually all liberal democratic states, now possess codified constitutions.
Codified constitution: A constitution in which key constitutional provisions are collected together within a single legal document, popularly known as a written constitution or the constitution.
A constitution is a set of rules that:
• Seek to establish the duties, powers and functions of the various institutions of government
• Regulate the relationships between and among the institutions
• Define the relationship between the state and the individual; that is, define the extent of civil liberty (see p. 288).
The balance between written (e.g. laws) and unwritten (e.g. customs or conventions) rules varies from system to system, but no constitution is entirely written and none is entirely unwritten. The main types of constitution are codified and uncodified constitutions, unitary and federal constitutions, and rigid and flexible constitutions.
Codified constitutions have three key features (these are illustrated by the US constitution, see p. 182):
• In a codified constitution, the document itself is authoritative, in the sense that it constitutes ‘higher’ law – indeed, the highest law of the land. The constitution binds all political institutions, including those that make ordinary law. This gives rise to a two-tier legal system, in which the constitution stands above statute law made by the legislature.
• The provisions of the constitution as laid out in the codified document are entrenched, in the sense that they are difficult to amend or abolish. The procedure for making and subsequently changing the constitution must therefore be in some way more complex or difficult than the procedure for making ordinary laws.
• As the constitution sets out the duties, powers and functions of government institutions in terms of ‘higher’ law, it is judiciable. This means that all political bodies are subject to the authority of the courts, and in particular a supreme or constitutional court.
Uncodified constitutions have become increasingly rare. Only three liberal democracies (the UK, Israel and New Zealand) continue to have uncodified constitutions, together with a handful of non-democratic states such as Bhutan, Saudi Arabia and Oman. However, the introduction in New Zealand of the Constitution Act 1986 (which consolidated previously scattered laws and principles), and the adoption in 1990 of a bill of rights, has been interpreted by many commentators as indicating that the New Zealand constitution is no longer uncodified.
Uncodified constitution: A constitution that is made up of rules that are found in a variety of sources, in the absence of a single legal document or written constitution.
Uncodified constitutions have three defining features:
• The constitution is not authoritative. Constitutional laws enjoy the same status as ordinary laws. States that have uncodified constitutions therefore have single-tier legal systems with no form of higher law.
• Uncodified constitutions are not entrenched. The constitution can be changed through the normal processes for enacting statute law. This is reflected in the UK in the principle of parliamentary sovereignty (see p. 189), through which Parliament can make, unmake and amend any law it wishes, including laws that affect the constitution.
• Uncodified constitutions are not judiciable. In the absence of higher law, judges simply do not have a legal standard (enshrined in a written constitution) against which they can declare that the actions of other bodies are ‘constitutional’ or ‘unconstitutional’.
Unitary and federal constitutions
Constitutions have also been classified in terms of their content and, specifically, by the institution or structure they underpin. The most widely used such classification is between unitary and federal constitutions. Unitary constitutions establish the constitutional supremacy of central government over provincial or local bodies. They do this by vesting sovereignty in the national legislature, meaning that it can create or abolish, strengthen or weaken, all other institutions. In the UK, this is reflected in the fact that Parliament possesses, at least in theory, unrivalled and unchallengeable legislative authority. Devolved assemblies and local authorities do not, therefore, enjoy a share of sovereignty. By contrast, federal constitutions divide sovereignty between two levels of government. Both central government (the federal level) and regional government (the state level) possess a range of powers that the other cannot encroach on. As discussed in Chapter 11, many argue that as the devolution has deepened the UK constitution process has acquired a ‘quasi-federal’ character.
Unitary constitution: A constitution that concentrates sovereign power in a single body of national government.
Federal constitution: A constitution that is based on the principle of shared sovereignty, in that there are two relatively autonomous levels of government, the national/ federal and the regional/ state.
Rigid and flexible constitutions
An alternative form of classification is based on the ease with which the constitution can be changed. On the face of it, codified constitutions are likely to be relatively inflexible, because their provisions are in some way entrenched in higher law. By the same token, uncodified ones appear to be flexible and adaptable, because laws of constitutional significance can be changed through the ordinary legislative process. However, there is no simple relationship between codified constitutions and rigidity, or uncodified ones and flexibility:
• Codified constitutions can exhibit a surprising degree of flexibility. This does not apply in the formal process of amendment, which is deliberately hard to bring about. However, it may occur through a process of judicial interpretation. For instance, the US Constitution means whatever the justices of the Supreme Court say it means.
• Some aspects of the UK’s uncodified constitution have remained remarkably resistant to change. These include the principles of parliamentary sovereignty and the constitutional monarchy, both of which date back to the late 17th century, with the formal powers of the monarchy, the Royal Prerogative, being much older still.
Royal Prerogative: The body of powers, immunities and privileges that are recognised in common law as belonging to the Crown; these powers are now more commonly exercised by ministers than by the monarch.
• The US Constitution was the world’s first ‘written’ constitution. It was written by the ‘founding fathers’ at the Philadelphia Convention in 1787, to provide a system of government for the newly independent USA. The document is only about 7,000 words in length and is largely taken up with a description of the duties, powers and functions of the three branches of federal government: the presidency, Congress and the Supreme Court. The Bill of Rights, consisting of the first ten amendments of the constitution, was introduced in 1789 and ratified in 1791.
• The Constitution is entrenched by the fact that Congress cannot change the Constitution through its normal legislative processes. The amendment process is deliberately complex. Amendments must first be passed by at least two-thirds of the votes in both houses of Congress and then they must be ratified by at least three-quarters of the state legislatures (this currently means 37 states out of 50).
• On the face of it, the US Constitution is highly rigid. A mere 27 constitutional amendments have been passed since 1789, ten of which (the Bill of Rights) were introduced in the first two years of the Constitution’s existence. However, although the words of the US Constitution may have changed little, their meaning has been subject to constant revision and updating as judges have interpreted and reinterpreted them. In addition, other aspects of constitutional practice (such as political parties, primary elections and congressional committees) have simply evolved over time.
• The US Constitution is a federal constitution. Although its provisions deal entirely with the institutions of federal government, the Tenth Amendment states that all other powers are reserved to the states and the people. This means that the 50 states (together with the people) are entitled to all the powers not allocated by the constitution.
THE UK CONSTITUTION
Until the 1970s, the UK constitution was widely admired. At home, it tended to be seen as the historical glue that linked the present and the past, and gave the British people their distinctive identity. Schools and colleges did not teach government and politics; instead, students studied what was called ‘British Constitution’. Many abroad looked with envy at the UK, seeing its constitution as the key to the country’s long period of peaceful political development. However, all of this was to change. A series of events in the 1970s – including the onset of recession, membership of the European Community (EC), clashes between government and the unions, and the rise of Scottish and Welsh nationalism – combined to raise concerns about how the UK was governed, and about the constitution in particular. Was the UK constitution any longer fit for purpose?
In order to review this question, we need to examine three issues:
The sources of the constitution
The principles of the constitution
The strengths and weaknesses of the ‘traditional’ constitution.
SOURCES OF THE CONSTITUTION
The UK constitution is best thought of as a part-written and uncodified constitution. Indeed, over time it has become an uncodified but mainly written constitution. This reflects the fact that, although there is no single, authoritative constitutional document in the UK, most of the rules of the constitution are written down and many of them have a legal status (even though they may not constitute higher law). The rules and principles of the constitution, however, can be found in a variety of places. By contrast with the codified constitution, this makes the UK constitution seem untidy, even confusing.
1215 |
Magna Carta – see p. 41 |
1649–60 |
Commonwealth – The period of English republican government between the execution of Charles I and the Restoration, when Charles II returned to England. From 1653 to his death in 1658, Oliver Cromwell ruled as the Lord Protector, refusing the offer of the crown. |
1688 |
Glorious Revolution – see p. 8 |
1689 |
Bill of Rights – see p. 295 |
1701 |
Act of Settlement – This settled the succession to the English and Irish crowns, and also disqualified anyone who became a Roman Catholic, or married one, from inheriting the throne (the disqualification was removed in 2011). |
1707 |
Acts of Union – The Union with Scotland Act 1706 and the Union with England Act 1707 provided for the creation of the Kingdom of Great Britain as a single state with a single legislature. Scotland and England had previously been separate states but, since 1603, with the same monarch. |
1911 and 1949 |
Parliament Acts – These Acts formally consigned the House of Lords a subordinate role to that of the House of Commons, by stipulating that the Lords can delay a non-money bill for no more than two sessions (reduced to one session in 1949), and that money bills become law one month after leaving the Commons, without the need for Lords’ approval. |
1972 |
European Communities Act – This Act approved and authorised the UK’s membership of the European Community, which commenced at the beginning of 1973 and meant that EC/EU law became a source of the constitution. |
1997–2001 |
New Labour reforms – The first Blair Labour government introduced a major programme of constitutional reform. Its reforms included devolution to Scotland, Wales and Northern Ireland (1998), the creation of the Greater London Authority (1999), the removal of all but 92 hereditary peers in the Lords (2000), and the introduction of the Human Rights Act (see p. 41) and the Freedom of Information Act (2000). |
June 2016 |
EU referendum – see p. 83 |
March 2017 |
Article 50 triggered – Through this, the UK notified the European Council of its intention to withdraw from the EU, starting a maximum two-year process of negotiation, as set out in the Treaty on European Union. |
The most important sources of the UK constitution are:
Statute law
Works of constitutional authority
Common law
European law and treaties
Conventions.
Statute law
Statute law is law made by Parliament, otherwise known as Acts of Parliament or primary legislation (a statute is a formal, written law). Of course, not all statute laws are of constitutional significance; only the ones that affect the powers and responsibilities of government bodies or the rights and freedoms of citizens are. Statute law, though, is the single most important source of the constitution. This applies because the principle of parliamentary sovereignty (discussed below) implies that statutes outrank all other sources of the constitution (although, as we shall see, EU membership throws this into question). If a statute conflicts with, say, a convention or a common law, the statute will always prevail. In addition, more and more constitutional rules have come to have a statutory basis, both as new constitutional statutes have been enacted and, sometimes, as conventions and common laws are turned into statutes.
Examples of constitutionally significant statute laws include:
• Parliament Acts of 1911 and 1949 (limited the powers of the House of Lords)
• European Communities Act 1972 (authorised the UK’s membership of the EC)
• Scotland Act 1998 (established the Scottish Parliament) and Government of Wales Act 1998 (established Welsh Assembly)
• Human Rights Act 1998 (translated the European Convention on Human Rights into statute law)
• House of Lords Act 1999 (excluded all but 92 hereditary peers from sitting in the House of Lords)
• Freedom of Information Act 2000 (gave citizens a legal right of access to government information)
• Constitutional Reform Act 2005 (provided for a Supreme Court to take over the role of the Law Lords)
• Fixed-term Parliament Act 2011 (introduced the principle of fixed-term elections for the Westminster Parliament).
Common law refers to a body of laws that are based on tradition, custom and precedent. Although the ultimate source of common law is custom, long-established practices that have come to acquire legal status, the body of common law has largely been created and refined by the courts on a case-by-case basis. This occurs through the use of precedent, where judgements in earlier similar cases are taken to be binding on later cases. Therefore, while statute law is made by politicians, common law is sometimes seen as ‘judgemade’ law (discussed in Chapter 9).
Constitutional rules that are based on part of common law include:
• Royal Prerogative. These are the formal powers of the Crown, and they encompass many of the powers of the prime minister and the executive branch of government.
• Traditional rights and freedoms. Until the passage of the Human Rights Act, the courts recognised what were called ‘residual’ rights, rights that rested on the common law assumption that ‘everything is permitted if it is not prohibited’.
Conventions
Conventions are the key unwritten element within the constitution: being non-legal, they often lack clear and unambiguous definition. For example, there is a convention that the government will either resign or call a general election if defeated on a major bill by the House of Commons; but there is debate about what constitutes a ‘major’ bill. And, anyway, there would be no legal consequences if the government simply ignored this rule. So why are conventions upheld? The answer is that they are upheld by practical political circumstances; in short, they make politics ‘workable’. The convention that the Royal Assent is always granted is upheld by the monarch’s desire not to challenge the ‘democratic will’ of Parliament, an act that would bring the future of the monarchy into question. Once established, constitutional conventions often assume historical authority, as they come to be based on custom and precedent.
Convention: A non-legal rule; a rule of conduct or behaviour.
Royal Assent: The monarch’s agreement to legislation passed by the two houses of Parliament; by signing a Bill, it becomes an Act.
Examples of major constitutional conventions include:
• The exercise of Crown powers. The powers of the Royal Prerogative are, in the main, exercised by the prime minister and other ministers, not by the monarch. These powers include the power to appoint, reshuffle and sack ministers, to dissolve and recall Parliament, and to ratify international treaties (although, in the future, many of these powers will be subject to parliamentary consultation).
• The appointment of the prime minister. The monarch appoints as prime minister the leader of the largest party in the House of Commons, or, in the case of a ‘hung’ Parliament, the politician who is likely to command the confidence of the House of Commons.
• Individual ministerial responsibility (see p. 245). This broadly defines the relationship between ministers and their departments, and it defines grounds on which ministers should resign.
• Collective ministerial responsibility (see p. 244). This defines the relationship between ministers and the cabinet, and between the government as a whole and Parliament; it determines, amongst other things, that the government should resign or call a general election if it loses the ‘confidence’ of the House of Commons.
• Use of referendums to approve major constitutional changes. This has gradually been established since the (failed) devolution referendums of 1979, although it is unclear which reforms it should apply to; referendums were not called over the Human Rights Act or fixed-term Parliaments, for example.
• Parliament consulted prior to the UK going to war. This has been accepted since Gordon Brown in 2007 announced that in future the UK would never declare war without Parliament having debated the issue beforehand.
Works of constitutional authority
One of the peculiarities of the UK constitution is the need to consult works by authors who are considered to be authorities on constitutional issues. These works help to define what is constitutionally ‘proper’ or ‘correct’; although they are certainly written, they are not legally enforceable. Such works are needed for two reasons:
• There are many gaps and confusions in the UK’s uncodified constitution with, particularly in the case of conventions, uncertainty about how general rules and principles should be applied in practice.
• These authoritative works carry out the job of interpretation – saying what the constitution actually means – that, in a codified constitutional system, would be carried out by senior judges.
Nevertheless, as they lack legal authority, these constitutional works are only consulted, and followed, if they are considered to be relevant and their authors respected. Their status is therefore often subject to debate.
Key works of constitutional authority include:
• Walter Bagehot’s The English Constitution (1963 [1867]). This provides the classic definition of the role of the prime minister (as ‘first amongst equals’) and of the principle of cabinet government.
• A. V. Dicey’s An Introduction to the Study of the Law of the Constitution (1959 [1885]). This defines the ‘twin pillars’ of the constitution: parliamentary sovereignty and the rule of law.
• Thomas Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (usually known as ‘Erskine May’) (1997 [1844]). This provides the most authoritative account of the practices, procedures and rules of Parliament (Erskine May was the Clerk of the House of Commons 1871–86).
EU laws and treaties
In joining the EC in 1973, the UK became subject to the body of European laws and treaties. The significance of this grew over time in two ways. First, the process of European integration continued, if sometimes sporadically. This meant that European bodies increased in importance. The European Community, for example, was transformed into the European Union (EU) in 1993. Second, the implications of EC/EU membership gradually became more apparent, as the higher status of European law over UK statute law was gradually recognised. This has led to a debate (examined below) about the continued significance of parliamentary sovereignty in a context of EU membership.
The most important EU laws and treaties include the following:
• Treaty of Rome 1957. This was the founding treaty of the then European Economic Community, and all member states, whenever they joined, become subject to it.
• Single European Act 1986. This was the treaty that established a single market within the EC, ensuring the free movement of goods, services and capital.
• Treaty on European Union (TEU or the Maastricht Treaty) 1993. This treaty introduced political union in the form of the EU, although the UK negotiated an opt-out on the issue of monetary union (membership of the euro) and, initially, on the Social Charter.
• Treaty of Lisbon 2009. This was a modified version of the proposed Constitutional Treaty, which would have created an EU Constitution, incorporating and replacing all other treaties. Lisbon, nevertheless, introduced new decision-making arrangements within the Union.
PRINCIPLES OF THE CONSTITUTION
Constitutions do not just exist as a collection of simple rules – who can do this, who must do that, and so on. Rather, these rules put into practice a framework of principles which, in a codified constitution, tend to be spelled out in the preamble of the written document. The UK constitution may not have a written document, or a preamble, but it does have a set of core principles. Most important of these are:
Parliamentary sovereignty
Constitutional monarchy
EU membership
Parliamentary government.
Parliamentary sovereignty
Sovereignty is a key concept in all constitutions. This is because it defines the location of supreme constitutional power. If constitutions define the duties, power and functions of the various institutions of government, the sovereign body, or any body that shares sovereignty, has the ability to shape or reshape the constitution itself. In this way, it defines the powers of subordinate bodies. In the UK, sovereignty is located in Parliament or, technically, the ‘Crown in Parliament’. Parliamentary sovereignty is strictly a form of legal sovereignty: it means that Parliament has the ability to make, unmake or remove any law it wishes. As J. S. Mill (1806–73) put it, ‘Parliament can do anything except turn a man into a woman’. Parliamentary sovereignty is, without doubt, the most important principle in the UK constitution, but it is also its most controversial.
Sovereignty: The principle of absolute and unlimited power, implying either supreme legal authority (legal sovereignty) or unchallengeable political power (political sovereignty) (see p. 301).
However, there are doubts about the accuracy and continuing relevance of parliamentary sovereignty. This is for three reasons:
• Parliament is not, and has never been, politically sovereign. Parliament has the legal right to make, amend or unmake any law it wishes, but not always the political ability to do so. A simple example would be that Parliament could, in theory, abolish elections, but this would be likely to result in widespread public protests, if not popular rebellion.
Key concept … PARLIAMENTARY SOVEREIGNTY
Parliamentary sovereignty refers to the absolute and unlimited legal authority of Parliament, reflected in its ability to make, amend or repeal any law it wishes. As the parliamentary authority Blackstone put it, ‘what Parliament doth, no power on earth can undo’. Parliamentary sovereignty is usually seen as the central principle of the UK constitution.
Parliamentary sovereignty is based on four conditions:
• The absence of a codified constitution – the absence of higher law
• The supremacy of statute law over other forms of law – Acts of Parliament outrank common law, case law, and so on
• The absence of rival legislatures – no other bodies have independent law-making powers
• No Parliament can bind its successors – Parliament cannot make laws that cannot be unmade.
The main political constraints on parliamentary sovereignty therefore include the following:
• Powerful pressure groups, especially major business interests
• Public opinion, particularly electoral pressures
• The views of major trading partners, notably the USA and leading EU states
• The policies of international organisations, such as the EU, the World Trade Organization (WTO) and the UN.
• There has been a shift from parliamentary sovereignty to popular sovereignty. Evidence of the growth of popular sovereignty can be seen, for example, in the wider use of referendums (see p. 81), the establishment of popularly elected devolved assemblies (see Chapter 11) and in more clearly defined citizen’s rights, particularly through the Human Rights Act (see pp. 290–293).
Popular sovereignty: The principle that supreme authority is vested in the people directly, rather than in a representative institution.
• Parliament may no longer be legally sovereign. This view has developed primarily as a result of the constitutional implications of EU membership (see pp. 191–192). It is also implied by the idea that devolution has resulted in ‘quasi-federalism’, reflected in the reluctance (or inabilty) of Parliament to challenge decisions made by devolved bodies. (Both of these developments are discussed more fully in Chapter 11.)
The rule of law
The rule of law is the second key principle of the UK constitution. It has traditionally been seen as an alternative to a codified constitution, showing that, even in the absence of higher law, government is still subject to legal checks and constraints. Government, in short, is not ‘above’ the law. (The rule of law is discussed more fully in Chapter 10.)
Rule of law: The principle that law should ‘rule’, in the sense that it applies to all conduct or behaviour and covers both private citizens and public officials.
Parliamentary government
The UK’s constitutional structure is based on a fusion of powers between the executive and Parliament. This is what is meant by parliamentary government (see p. 219). Government and Parliament are therefore overlapping and interlocking institutions. Government, in effect, governs in and through Parliament. (The nature and implications of parliamentary government are discussed more fully in Chapter 8.) However, particular controversy has arisen as a result of the combination of the principle of parliamentary sovereignty and parliamentary government. The close relationship between government and Parliament can lead to a situation in which the executive can use the sovereign power of Parliament for its own ends. This gives rise to the problem of ‘elective dictatorship’ (see p. 194).
Constitutional monarchy
Although the monarchy lost its absolute power long ago, it remains a constitutionally significant body in the UK. During the 19th century, most of the monarchy’s remaining powers were transferred to ministers accountable to Parliament, especially the prime minister. As early as 1867, Walter Bagehot distinguished between the ‘dignified’ parts of the constitution (in which he included the monarchy and the House of Lords), from the ‘efficient’ parts of the constitution (the cabinet and the House of Commons). However, according to Bagehot, ‘dignified’ institutions still played a vital role even if they did not exercise meaningful political power. The role of the monarchy was thus to promote popular allegiance, to serve as a symbol of political unity above the ‘rough and tumble’ of conventional party politics.
‘Dignified’ parts: Long established and widely respected bodies that serve to make the political process intelligible to the mass of people (according to Bagehot).
According to Bagehot (and what he said in the 19th century still holds), the monarch has the right:
• To be informed
• To be consulted
• To warn
• To encourage.
EU membership
While the UK remains a member of the EU, the fact of EU membership will have major constitutional implications for the UK. These focus, in particular, on the role and significance of Parliament, and whether Parliament can any longer be viewed as a sovereign legislature. Sovereignty within the UK has come to be best understood as ‘parliamentary sovereignty within the context of EU membership’. (The wider relationship between the UK and the EU is discussed more fully in Chapter 11.)
EU membership encroaches on parliamentary sovereignty in three main ways:
• European law is higher than statute law. This was established by the Factortame case in 1991, when the European Court of Justice, in effect, quashed sections of the Merchant Shipping Act 1988 because they conflicted with the provisions of the Treaty of Rome. Statute law now outranks all other forms of law except key aspects of European law and treaties.
• Some EU bodies, notably the European Commission, have supranational powers. EU bodies can therefore impose their will on member states regardless of the stance taken by national legislatures. Parliament thus has no power to resist or ignore directives that are issued by the Commission.
• The decline of the ‘national veto’. The national veto served to protect parliamentary sovereignty by allowing any member state to block EC/EU measures that threatened vital national interests. However, a larger proportion of decisions have come to be made by the EU’s key decision-making body, the Council of Ministers, by what is called ‘qualified majority voting’.
Some people, nevertheless, disagree with this position, arguing that parliamentary sovereignty largely survived the threats posed to it by EU membership.
Parliamentary sovereignty has remained relevant for one of two reasons:
• In joining the EC in 1973, Parliament did not, and could not, bind its successors. In other words, the principle of parliamentary sovereignty remains alive and is embodied in Parliament’s power to leave the EU by repealing the European Communities Act 1972. Any loss of Parliament’s legislative authority that occurred therefore happened because Parliament tolerated it.
• European integration did not erode parliamentary sovereignty so much as ‘pool’ it. This argument reflects the view that member states can achieve more when they work together through the institutions of the EU than they can when they operate as independent nations. The ‘pooled’ sovereignty of the EU is therefore greater than the collective national sovereignties of member states. (See ‘Brexit and the constitution’, p. 204.)
Pooled sovereignty: The combination of the national sovereignties of member states to enhance their power and influence; the whole is greater than its parts.
STRENGTHS OF THE UK CONSTITUTION
The UK constitution has been defended on a number of grounds. These include:
Flexibility
Effective government
Democratic rule
History and tradition.
Flexibility
One of the chief strengths of the UK constitution is that it is flexible and easy to change. This occurs in particular because of the importance of statute law. Quite simply, it is easier and quicker to introduce an Act of Parliament than to amend, say, the US Constitution. Flexibility therefore arises from the fact that the UK constitution is not entrenched. The advantage of the UK’s ‘unfixed’ constitution is that it remains relevant and up-to-date. This occurs because it can adapt and respond to changing political and social circumstances. The introduction of devolution was, for instance, a response to rising nationalism in Scotland and Wales.
Democratic rule
The UK’s long period of unbroken democratic rule is often seen as evidence of the strength of its constitutional system. The reason why the constitution has a democratic flavour is because of the importance of parliamentary sovereignty. In the UK’s uncodified constitution, supreme constitutional authority is vested, ultimately, in the elected House of Commons. Changes to the constitution therefore often come about because of democratic pressure. For instance, social and economic changes in the 19th century led to the extension of the franchise through a series of reform acts. Similarly, the powers of the House of Lords were reduced through the Parliament Acts, because of a growing belief that an unelected second chamber should no longer have the right to block the policies of elected governments. The democratic character of the UK constitution is also maintained by the fact that the influence of unelected judges is kept to a minimum. In the USA, the constitution effectively means what the judges of the Supreme Court say it means, and these judges are in no way publicly accountable.
Effective government
Supporters of the UK constitution often argue that it helps to make UK governments stronger and more effective. This occurs for two reasons:
• Given the absence of a ‘written’ constitution, government decisions that are backed by Parliament cannot be overturned by the judiciary.
• The UK’s system of parliamentary government, based on the Westminster model (see p. 19), usually means that governments get their way in Parliament.
This concentration of power in the hands of the executive within the parliamentary system allows UK governments to take strong and decisive action. This is best reflected in radical, reforming governments such as the Attlee governments of 1945–51, which, amongst other things, set up the NHS, introduced comprehensive national insurance and nationalised a wide range of industries; and in the Thatcher governments of 1979–90, which introduced privatisation, deregulated the economy and started to reform the welfare state.
History and tradition
This is an argument most commonly associated with conservative thinkers. In their view, a key strength of the constitution is that, being based on tradition and custom, it links present generations to past generations. Because of the role of common law and conventions in particular, the UK constitution has developed and grown over time, giving it an ‘organic’ character (the constitution is like a living thing). This contrasts starkly with codified constitutions, which, by definition, have been ‘created’. The benefit of an organic constitution that is based on custom and tradition is that it has historical authority. Constitutional rules and principles have been ‘tested by time’ and therefore been shown to work. This can be seen most clearly in relation to the ‘dignified’ aspects of the constitution, such as the monarchy and the House of Lords.
CRITICISMS OF THE UK CONSTITUTION
The UK constitution has nevertheless been subject to growing criticism. These criticisms have been levelled especially at the ‘traditional’ constitution, the constitution that existed before the Blair government’s reforms started in 1997 (discussed below), but many commentators argue that they remain relevant to the contemporary, ‘reformed’ constitution.
The most important of these are:
Uncertainty
Centralisation
Elective dictatorship
Weak protection of rights.
Uncertainty
Critics of the UK constitution point out that it is sometimes difficult to know what the constitution says. Confusion surrounds many constitutional rules because, quite simply, they are not hard and fast. This applies particularly to the constitution’s unwritten elements. For instance, the convention of individual ministerial responsibility requires that ministers are responsible for blunders made by their departments. But does this mean that they should resign when civil servants make mistakes or only when mistakes are made by the minister? Further, does ‘responsibility’ imply that anyone has to resign, or just that the minister must provide answers and promise to put mistakes right? It is difficult, in such cases, to escape the conclusion that the constitution is made up as we go along.
Key concept … ELECTIVE DICTATORSHIP
Elective dictatorship is a constitutional imbalance in which executive power is checked only by the need of governments to win elections. In the UK, it is reflected in the ability of a government to act in any way it pleases as long as it maintains control of the House of Commons.
Elective dictatorship occurs for a number of reasons:
• The absence of a codified constitution means that Parliament has sovereign power
• The subordinate status of the House of Lords means that the sovereign power of Parliament is, in practice, exercised by the House of Commons
• The ‘first-past-the-post’ voting system (see p. 65) means that the House of Commons is (usually) dominated by a single majority party
• Tight party discipline means that government has majority control over the Commons, and so can use parliamentary sovereignty for its own ends.
Elective dictatorship
The most serious and challenging criticism of the UK constitution is that, in practice, it gives rise to the problem of ‘elective dictatorship’. This term was coined in 1976 by Lord Hailsham, a former Conservative minister and later a Lord Chancellor under Thatcher. It draws attention to the simple fact that, once elected, UK governments can more or less act as they please (that is, act as dictators) until they come up for re-election. This occurs through a combination of two factors:
• Sovereign power is vested in the hands of Parliament.
• Parliament is routinely controlled, even dominated, by the government of the day.
The problem of elective dictatorship is that, in concentrating power in the hands of the executive, it allows the government of the day to shape and reshape the constitution however it wishes. This creates the impression that, in effect, the UK does not have a constitution. As John Griffiths (1997) put it, the constitution in the UK is ‘what happens’. The other concern is that, in widening the powers of government, it creates the possibility that government may become oppressive and tyrannical.
Centralisation
A further target of criticism has been that the UK has an overcentralised system of government with weak or ineffective checks and balances. One of the key features of liberal democracy is that government power is limited through internal tensions between and amongst government bodies. However, UK government is characterised more by the concentration of power than its fragmentation. This can be seen in many ways:
• The prime minister tends to dominate the cabinet
• The House of Commons is more powerful than the House of Lords
• The executive usually controls Parliament
• Central government controls local government.
Focus on … CHECKS AND BALANCES
The idea of checks and balances stems from the basic liberal fear that government is always likely to become a tyranny against the individual (‘power tends to corrupt’). Government power must therefore be limited or constrained. This can be done by creating institutional tensions within the system of government by fragmenting government power. As the political philosopher Thomas Hobbes (1588–1679) put it, ‘liberty is power cut into pieces’. A network of checks and balances therefore ensures that government is at war with itself, limiting its ability to wage war against its citizens.
The checks and balances that are commonly found in liberal democracies include:
• The separation of powers (see p. 279)
• Bicameralism (see p. 234)
• Parliamentary government (see p. 219)
• Cabinet government (see p. 248)
• Judicial independence
• Federalism (see p. 308) or devolution (see p. 303).
The constitutional reforms that have been introduced since 1997 have certainly tried to address this problem, particularly through devolution and the early stages of Lords reform. Although these reforms have been widely credited with having dispersed government power, many argue that they have not gone far enough. This will be looked at later in relation to the Blair government’s reforms.
Weak protection of rights
The final criticism is that the UK constitution provides weak protection for individual rights and civil liberties. In part, this is a consequence of elective dictatorship and the fact that, except for elections, there is nothing that forces the government to respect individual freedom and basic rights. Elections, indeed, can only do this inadequately as they tend to empower majorities rather than minorities or individuals. However, this concern also arises from a traditional unwillingness to write down individual rights and freedoms, to give them legal substance. As discussed earlier, individual freedom in the UK traditionally rested on ‘residual’ rights that were supposed to be part of common law. The passage of the Human Rights Act 1998 has certainly changed this, by both defining rights more clearly and making it easier for them to be defended in the courts. However, it stops well short of being an entrenched bill of rights as its provisions could be set aside by Parliament, as has occurred, for instance, over terrorism legislation. (See p. 41 for a fuller account of rights in the UK.)
CONSTITUTIONAL REFORM
Constitutional reform has been a prominent issue in the UK since the late 1990s. Having been dismissed for many years as being almost un-British, questions about reshaping, and even replacing, the UK constitution have attracted wider political attention. Most importantly, interest in constitutional reform has extended beyond long-term advocates, such as the Liberal Democrats, and came to encompass both the Labour and Conservative parties.
This has (apparently) overcome the core problem of constitutional reform in the UK – how could the traditional parties of government be persuaded to support measures that would only tie their own hands when they are in power? In that sense, the UK’s ‘unwritten’ constitution, with its bias in favour of elective dictatorship, had been self-perpetuating. It was easy to see why ‘third’ parties would be enthusiastic for constitutional reform: these reforms would limit the power of other parties, not themselves. But it has been less easy to see why the larger parties would take up an issue that, on the face of it, conflicted with their interests. And if they did take up the issue, how far would they be prepared to take it?
This section examines the following themes:
Constitutional reform under Blair and Brown, 1997–2010
Constitutional reform under Cameron and Clegg, 2010–15
Other possible reforms, especially the introduction of a codified constitution.
CONSTITUTIONAL REFORM UNDER BLAIR AND BROWN
The Labour Party had traditionally been little more interested in changing the constitution than was the Conservative Party. This even applied in relation to the then Conservative-dominated House of Lords. A commitment to abolish and replace the Lords in the 1960s was quickly abandoned as too divisive and too difficult. In 1978, and again in 1979, the Callaghan Labour government tried, under pressure from the Scottish and Welsh nationalists, to introduce devolution; but this was defeated by opposition within its own ranks and the issue was then ignored for over a decade. However, during its 18 years in opposition (1979–97) Labour developed greater sympathy for constitutional reform.
Labour’s 1997 manifesto committed the party to a bold and far-reaching programme of constitutional reform. This programme was motivated by a combination of principled beliefs and party-political advantage. The reforms were influenced by a desire to strengthen checks and balances after the radical reforms of the Thatcher period (see Chapter 5). The other consideration, though, was the desire to bolster Labour’s position in Scotland (against the threat from the Scottish National Party) through granting devolution and to end Conservative control of the House of Lords.
The Blair government was, without doubt, the most radical reforming government on constitutional matters of any elected in the 20th century. Blair’s programme was bold and far-reaching, with a slate of major constitutional bills dominating the legislative agenda in its early years.
These reforms included the following:
• A Scottish Parliament and a Welsh Assembly were established in 1999 (see Chapter 11).
• A Northern Ireland Assembly was created in 1998, as part of the larger Good Friday Agreement.
• A Greater London Authority, consisting of a London mayor and the Greater London Assembly, was set up in 2000.
• Referendums were held to approve the creation of each of the new government bodies (see Chapter 3).
• PR electoral systems were used for each of the newly established bodies (see Chapter 3).
• The Human Rights Act (HRA) was passed in 1998 (see Chapter 10).
• All but 92 hereditary peers lost their right to sit and vote in the House of Lords in 1999 (see Chapter 8).
• The Freedom of Information Act was passed in 2000.
• The 2005 Constitutional Reform Act provided for the creation of the Supreme Court in 2009 (see Chapter 10).
What is more, these reforms were not an end in themselves. Instead, they created momentum for further, and perhaps more radical, constitutional change. For example, once devolved assemblies were established, especially with the democratic legitimacy that comes from a successful referendum, an appetite for greater independence was created. This was reflected in growing demands in Wales for their Assembly to be granted the same powers as the Scottish Parliament and, in due course, in the SNP’s bid for Scottish independence through the 2014 referendum. Similarly, the removal of the bulk of hereditary peers from the House of Lords was also only envisaged as ‘stage one’ in a bolder process of reform that would eventually lead to the replacement of the House of Lords by an alternative (and possibly elected) second chamber.
Nevertheless, aside from problems related to individual measures, this phase of Labour’s constitutional reforms was also criticised:
• Enthusiasm for constitutional reform quickly started to fade. This was, perhaps, a simple consequence of the fact that, having won a ‘surprise’ landslide victory in 1997, Labour ministers and MPs quickly lost their enthusiasm for throwing away power. Certain commitments were therefore abandoned. This was seen in the failure to hold the promised referendum on an alternative to the Westminster voting system. ‘Stage two’ of Lords reform also appeared to have been shelved. Constitutional reform was therefore very much a passion of the first Blair government, 1997–2001.
• The reforms were piecemeal. There was no ‘constitutional blueprint’ that informed Blair’s reforms, which may have given the programme greater coherence and clearer goals. Instead, the reforms were individual solutions to particular problems.
• The reforms reshaped existing constitutional arrangements but did not address deeper problems. In particular, the reforms failed to provide a solution to the problem of elective dictatorship, arguably the central weakness of the UK’s constitutional system. The major ‘hole’ in the Blair reforms was the lack of substantive parliamentary reform. It was notable that the government retreated on the issues that could have brought this about – electoral reform at Westminster, and an elected and more powerful second chamber. Also, no mention was made of the possibility of a codified constitution or an entrenched bill of rights.
The transition from Blair to Brown in 2007 appeared to lead to renewed interest in constitutional issues. Brown outlined proposals for what he called a ‘citizens’ state’. At the heart of this was the plan to bring a range of prerogative powers under parliamentary control. These included the power to declare war, request a dissolution of Parliament (call a general election), recall Parliament and ratify international treaties. However, these proposals stopped well short of readjusting the relationship between the executive and Parliament. What is more, as the Brown government came under growing pressure, seemingly from all sides, the issue of constitutional reform received less and less attention. The promise of political debate and public consultation about longer-term proposals, including the possible introduction of a codified constitution and an entrenched bill of rights, therefore came to nothing.
THE CONSTITUTION UNDER CAMERON AND CLEGG
The formation of the Conservative–Liberal Democrat coalition in 2010 had mixed implications for the constitution. In many ways, the smooth, if protracted, transition of power following the election (as five days of coalition negotiations took place before the resignation of Brown and the appointment of Cameron as prime minister) highlighted the benefits of the flexible, uncodified constitution, as discussed earlier in the chapter. The scope that the constitution affords for the exercise of executive power was nevertheless also evident. This was most clearly apparent in the proposal to introduce the ‘55 per cent rule’. This would have meant that, in future, governments could only be forced to resign if they were defeated on a vote of confidence that had been supported by at least 55 per cent of MPs, not a simple majority. In the end, the proposal was withdrawn due to opposition from Conservative backbenchers concerned both about this rewriting of the constitution and the potential loss of their own power.
The impact of the 2010–15 Coalition on the constitution nevertheless has to be considered in two ways:
• Constitutional developments that occurred as a result of the formation of a coalition rather than a single-party government
• The government’s programme of constitutional reform, and its success or failure in implementing these reforms.
Constitutional implications of coalition government
As the conventions and practices of government and Parliament have substantially developed in a context of single-party majority government, it was no surprise that the formation of a coalition required adjustments to be made. This was particularly so in the case of the Conservative-Liberal Democrat coalition, as it was the first peacetime coalition government in the UK since the 1930s. Key developments took place in the following areas:
Government formation
In a number of ways, the post-election period leading up to the formation of a coalition government under Cameron is likely to provide a template for future ‘hung’ Parliaments. This certainly applies in the case of the provision of administrative support and factual briefings to the parties involved in the coalition-formation negotiations, with the Cabinet Secretary playing a particularly influential role. Moreover, as the incumbent prime minister, Brown did not resign until negotiations between the Conservatives and Liberal Democrats had reached the point where an alternative government could be formed. As an earlier resignation may have caused confusion and instability, the obligation on any future prime minister to act in a similar way may come to be regarded as a constitutional convention.
Collective responsibility and ‘agreements to differ’
The convention of collective ministerial responsibility is so important to the UK constitution that it had previously only been explicitly set aside on three occasions (over tariff reform in 1931, during the 1975 referendum campaign on EC membership, and in 1977 over legislation creating direct elections to the European Parliament). However, persuading parties that have been elected on the basis of sometimes quite different manifestos to work together in government might have been impossible had ministers been bound by a strict interpretation of collective responsibility. This was acknowledged in the Coalition’s Programme for Government (2010), which specified five so-called ‘agreements to differ’, areas where the Coalition partners were allowed to adopt different positions. These included the AV referendum, university funding and the renewal of Trident nuclear weapons.
Nevertheless, over time, a growing number of informal ‘agreements to differ’ emerged as senior ministers in both parties came to express differing views over matters ranging from immigration from the EU to proposals for a ‘mansion tax’ without being required to resign. Perhaps the most contentious departure from collective responsibility without a formal ‘agreement to differ’ occurred in January 2013, when Conservative and Liberal Democrat MPs, including ministers, voted in opposite lobbies on a bill to introduce parliamentary boundary changes.
Internal organisation of the executive
The executive branch of government has traditionally been organised on the basis of the assumption that ministers are loyal to the same party and share similar ideological and policy preferences. Coalition government, by contrast, requires that separate or alternative arrangements are put in place to reconcile the disputes that will inevitably emerge between coalition partners. In the case of the 2010–15 Coalition, this led to the creation of, amongst other things, the ‘quad’, a kind of ‘inner’ cabinet which comprised Cameron, Clegg and two of their closest cabinet colleagues, and the coalition committee, a cabinet committee on which sat six Conservative ministers and six Liberal Democrat ministers. Although any future coalition governments may not employ the same devices, or may configure them in a different way, it is difficult to see how such governments could function without mechanisms designed to achieve the same purpose. If this were the case, it is likely that such mechanisms will be formalised and so become part of the constitution.
Powers of the prime minister
It is no exaggeration to suggest that the key source of prime ministerial power is his or her leadership of the largest party in the House of Commons. When that party enjoys majority control of the Commons, this ensures the loyalty and support of all ministers, especially as the fate of the party is firmly linked to the success (or otherwise) of the prime minister. Coalition government cannot but change this, as it means that at least one other party leader sits in the cabinet, and their continued support is crucial to the government’s survival. In the case of the 2010–15 Coalition, Clegg, as Liberal Democrat leader, thus enjoyed wide-ranging powers, not least the ability to appoint or sack Liberal Democrat ministers. (This issue is discussed more fully in Chapter 9.)
Obligations of the House of Lords
Under the Salisbury Convention, the House of Lords does not oppose government legislation that is based on a manifesto commitment. This is thrown into question by coalition government, because coalition-formation requires that the parties concerned are willing to revise or abandon certain manifesto commitments in order to formulate a joint policy programme. In this light, the House of Lords select committee on the constitution recommended that the Coalition’s Programme for Government (2010) should not be treated as a manifesto for this purpose, on the grounds that it had not been endorsed by the electorate. Nevertheless, it accepted that the Salisbury Convention should apply if the Programme for Government included policies that had featured in either party’s manifesto.
Constitutional reform under the Coalition
The issues of constitutional and political reform featured prominently in the Coalition’s Programme for Government. This was largely due to the Liberal Democrats’ long-standing commitment in the area. Any chance of a Conservative–Liberal Democrat coalition therefore depended on agreement on a bold agenda of constitutional reform. On the face of it, such an agreement was easier to bring about because the Conservatives had, while in opposition during 1997–2010, shown greater sympathy for constitutional change, not least by supporting the idea of a largely elected second chamber. However, once back in power, deep-seated reservations about constitutional reform reasserted themselves within the Conservative Party, a symptom of a wider retreat from ‘modernisation’ and the strengthening of backbench traditionalism. This provided the basis for often bitter disagreement within the Coalition. The key areas of constitutional reform addressed by the Coalition were as follows:
Fixed-term Parliaments
The first decision made by the Coalition that had constitutional significance was to introduce fixed-term, five-year Parliaments, a policy enacted through the Fixed-term Parliament Act 2011. Such a policy had clear practical advantages in the circumstances, as it tended to make the Coalition more stable and enduring, and prevented both parties from seeking to exercise undue influence within the Coalition by threatening to bring the government down. However, the measure was also constitutionally significant. For instance, the insistence on a fixed, five-year term effectively extended the period between general elections (during 1945–2010, under the system of flexible-term elections, the average Parliament lasted just over three years and nine months) and it also curbed prime ministerial power (as the prime minister lost the capacity to decide the date of the next election). Under the legislation, early general elections can nevertheless still be called: first, through a vote of no confidence in the House of Commons that is not reversed within 14 days of its passage; and second, if two-thirds of total membership of the Commons calls for an early general election. As the calling of the 2017 general election just two years after the previous one demonstrated, the flexibility built in to the legislation may easily be exploited by a prime minister intent on calling a ‘snap’ election. (See ‘Debating … Fixed-term Parliaments’, p. 270.)
Reform of the Westminster electoral system
The Liberal Democrats’ chief constitutional demand in forming the Coalition was electoral reform for the House of Commons. The party had long favoured proportional representation, ideally using the STV system (see p. 72), while the Conservative manifesto had firmly supported ‘first-past-the-post’. The commitment in the Programme for Government to hold a referendum on the introduction of the AV (see p. 68), a system that is usually only marginally more proportional than ‘first-past-the-post’, was therefore a compromise, and, as it turned out, a compromise that failed. In a context of Liberal Democrat unpopularity, and with Cameron and the Conservatives campaigning strongly for a ‘no’ vote in the referendum, the option of AV was roundly rejected in May 2011. (See Chapter 3 for a fuller discussion of the AV referendum and its implications.)
House of Lords reform
The rejection of AV left the Liberal Democrats with only the prospect of Lords reform as a means of having a major impact on the constitution during the 2010–15 Parliament. This was an issue, moreover, on which the Conservative and Liberal Democrat 2010 manifestos coincided: both parties had been committed to a largely or entirely elected second chamber. However, this concealed the fact that many Conservative MPs continued to have deep reservations about an elected second chamber, in part because of the fear that such a chamber may become a rival to the Commons. Progress on developing a Lords reform bill, which was overseen by Clegg, was desperately slow. When the bill to introduce a mainly elected second chamber eventually came before the Commons in July 2012, some 91 Conservative MPs voted against it on second reading. The bill was finally withdrawn when Labour made it known that it would not support a motion outlining a timetable for the bill to be considered, without which it faced certain defeat. (See Chapter 8 for a more detailed examination of the issue of Lords reform.)
Devolution
The Conservative Party’s abandonment of its hostility towards devolution in the early 2000s significantly diminished the scope for disagreement with the Liberal Democrats on this issue. The commitment in the Programme for Government to give the Welsh Assembly Scottish-style law-making powers was duly carried out after a successful referendum in March 2011. The process of devolution in Scotland was substantially accelerated as a result of the September 2014 independence referendum. Two days before the referendum took place, and in the hope of bolstering the ‘no’ vote, Cameron, Clegg and Miliband pledged to devolve ‘extensive new powers’ to the Scottish Parliament in the event of the defeat of independence. In November 2014, the cross-party Smith commission published recommendations for the new powers of the Scottish Parliament, although these were not due to be implemented until after the 2015 general election. The nature and scope of the devolution debate was nevertheless substantially altered by Cameron’s insistence that further devolution to Scotland required that an answer be found to the so-called ‘West Lothian question’, giving rise to the prospect of ‘English votes on English issues’. (See Chapter 11 for a further discussion of devolution.)
BREXIT AND THE CONSTITUTION
Brexit is of profound constitutional significance. Most obviously, once the UK’s withdrawal from the EU has been completed, EU law will cease to be a source of the constitution, as long as the Brexit deal agreed with Brussels is sufficiently ‘hard’ to ensure that no residual responsibilities or obligations to the EU remain in force. Nevertheless, the loss of a source of the constitution is, in this case, much more than a constitutional technicality. This is because EU law is unique in that it is the only source of the constitution which, in the event of conflict, prevails over statute law, and in that sense constitutes ‘higher’ law. The key constitutional implication of Brexit is therefore that it will restore to statute law its traditional pre-eminence within the constitution and, in the process, enable Parliament to regain the legal sovereignty that it lost when the UK became a member of the EC in 1973.
However, constitutional significance attaches not only to the fact of Brexit but also to the process through which Brexit will be brought about. This can be seen, for instance, in the debate that surrounds the role and importance of the 2016 EU referendum (see p. 83). Although the ‘Leave’ victory in the referendum arguably gave the government a moral mandate to withdraw the UK from the EU, and created political expectations that would be difficult, if not impossible, to resist, it failed to provide a legal mandate for Brexit. This is because the EU referendum (like all referendums in the UK) was advisory, not binding. The matter is further complicated by the fact that the legislation that established the EU referendum failed to stipulate what the government should do in the event of a ‘Leave’ outcome.
In this context, the legal authority to execute Brexit can only be provided by Parliament. Thanks to the government’s defeat in the Supreme Court (see p. 294), a parliamentary vote preceded the triggering of Article 50 of the Treaty on European Union, in March 2017. This gave parliamentary approval to the beginning of up to two years of negotiations with Brussels on the conditions of the UK’s exit from the EU. In a quite separate process, the ‘Great Repeal Bill’ will be passed, ending the authority of the EU law. This will come into effect on the day of the UK’s exit and will transfer all existing EU laws on to the UK statute book, allowing them to be amended or scrapped as Parliament wishes. At the same time, the legislation that gives effect to EU law, the European Communities Act 1972, will be repealed. Lastly, before Brexit takes effect, probably in March 2019, a parliamentary debate has been promised to approve the terms of a final deal negotiated with Brussels.
Bill of rights and the judiciary
On this issue, the preferences of the Conservatives and Liberal Democrats clearly diverged. The Conservatives were committed to replacing the Human Rights Act (HRA) with a ‘British bill of rights’, which would neither enjoy the quasi-entrenched status of the HRA nor a direct association with the European Convention on Human Rights. The Liberal Democrats, by contrast, also supported the idea of a bill of rights, but, for them, this bill of rights would have to be fully entrenched and so serve to constrain Parliament. In view of this stand-off, no progress was made with either proposal. (See Chapter 10 for a further consideration of these and related issues.)
A CODIFIED CONSTITUTION?
The idea of a written constitution has long been debated by students of politics. However, that is exactly what this issue was: an academic debate, a debate between those who study politics, not between those who practise politics. This has now changed. The Liberal Democrats have long supported the introduction of a codified constitution and a bill of rights. They were joined in the 1980s by newly formed pressure groups, such as Charter 88. Labour’s interest in the subject was demonstrated by its willingness to give the Human Rights Act (1998) a semi-entrenched status, and by the acknowledgement by Brown when he became prime minister in 2007 that the issue should be considered.
Two major practical obstacles nevertheless stand in the way of the introduction of a ‘written’ constitution:
• There is no process through which a written constitution could be introduced. Opponents of a codified constitution have often dismissed the idea as simply unachievable. This is because there is no mechanism within the UK’s political and legal system to establish higher law. Indeed, this appears to be impossible, as the sovereign legislature, Parliament, cannot bind itself. The only solution to this problem is that a mechanism would have to be ‘invented’, and the most likely mechanism would be some kind of cross-party constitutional convention to draw up the provisions of the codified document followed by a referendum to give it popular authority.
• The major parties disagree about the nature and the content of the constitution. Without at least a broad consensus on constitutional issues among the major parties, a codified constitution would simply be impossible. They would need to agree to both the principle of codification and the detailed provisions of the constitution itself. Agreement on the former is difficult because so long as parties believe they have the prospect of winning parliamentary majorities (especially the Labour and Conservative parties), they have reason to be suspicious about the implications of a codified constitution. Agreement on the latter (detailed provisions) may be even more difficult, as protracted debate about the nature of the second chamber has shown.
And then there are questions about the desirability of codification. No possible constitutional reform would have more profound implications. A codified constitution would significantly affect:
• The power of government
• The relationship between the executive and Parliament
• The relationship between central government and devolved and local bodies
• The relationship between judges and politicians
• Individual rights and freedoms.
Supporters of codification argue that only a written constitution is a proper constitution. As the central purpose of a constitution is to limit government power, the constitution must be independent from the government itself. How can we trust a government that can enlarge its own powers at will? This is the central defect of the uncodified constitution, and its roots lie in the principle of parliamentary sovereignty. The only way of overthrowing parliamentary sovereignty is through the creation of an entrenched and judiciable constitution. Not only would this put the powers of government bodies and the relationship between the state and its citizens beyond the control of the government of the day, but it would also allow judges, who are ‘above’ politics, to become the guardians of the constitution.
Opponents of codification tend to advance one of two broad arguments. In the first place, they dismiss a written constitution in principle, usually warning that it is an artificial, legalistic device that would, anyway, lead to the tyranny of judges over democratic politicians. Second, they argue that the goal of limited government can be achieved through other means. Such a view places more faith in the fragmentation of power and the strengthening of checks and balances than in the establishment of higher law. From this perspective, the approach to constitutional reform that has been adopted by Blair and Brown is the right way for the UK to go. In other words, constitutional reform should continue to run with the grain of the ‘unwritten’ or ‘unfixed’ constitution, rather than embrace an entirely different constitutional framework.
FOR Clear rules. As key constitutional rules are collected together in a single document, they are more clearly defined than in an ‘unwritten’ constitution. This creates less confusion about the meaning of constitutional rules and greater certainty that they can be enforced. Limited government. A codified constitution would cut government down to size. It would provide a solution to the problem of elective dictatorship by ending parliamentary sovereignty. Higher law would also safeguard the constitution from interference by the government of the day. Neutral interpretation. A codified constitution would be ‘policed’ by senior judges. This would ensure that the provisions of the constitution are properly upheld by other public bodies. Also, as judges are ‘above’ politics, they would act as neutral and impartial constitutional arbiters. Protecting rights. Individual liberty would be more securely protected by a codified constitution because it would define the relationship between the state and the citizens, possibly through a bill of rights. Rights would therefore be more clearly defined and they would be easier to enforce. Education and citizenship. A written constitution has educational value, in that it highlights the central values and overall goals of the political system. This would strengthen citizenship (see p. 52) by creating a clearer sense of political identity, which may be particularly important in an increasingly multicultural society. |
AGAINST Rigidity. Codified constitutions tend to be more rigid than uncodified ones because higher law is more difficult to change than statute law. The constitution could therefore easily become outdated and fail to respond to an ever-changing political environment. Judicial tyranny. Judges are not the best people to police the constitution because they are unelected and socially unrepresentative. A codified constitution would be interpreted in a way that is not subject to public accountability. It may also reflect the preferences and values of senior judges. Legalistic. Codified constitutions are legalistic documents, created by people at one point in time. They are often dry and only properly understood by lawyers and judges. Unwritten constitutions, on the other hand, have been endorsed by history and so have an organic character. Political bias. Constitutional documents, including ‘written’ constitutions, are inevitably biased because they enforce one set of values or principles in preference to others. Codified constitutions can never be ‘above’ politics. They may therefore precipitate more conflict than they resolve. Unnecessary. Codified constitutions may not be the most effective way of limiting government power. Improving democracy or strengthening checks and balances may be better ways of preventing over-mighty government, making a written constitution unnecessary. |
SHORT QUESTIONS:
1 What is a constitution?
2 Outline two features of a codified constitution.
3 What is an uncodified constitution?
4 Distinguish between a federal constitution and a unitary constitution.
5 In what sense is the UK constitution ‘unwritten’?
6 What is a constitutional convention?
7 Distinguish between statute law and common law, as sources of the UK constitution.
8 What is ‘elective dictatorship’?
MEDIUM QUESTIONS:
9 Explain the main features of the UK constitution.
10 Explain, using examples, the sources of the UK constitution.
11 Explain three principles of the UK constitution.
12 Where, in the UK constitutional system, is sovereignty located?
13 What criticisms have been made of the UK constitution?
14 What are the main strengths of the UK constitution?
15 What difficulties have been generated by constitutional reform since 1997?
16 How might a codified constitution act as a check on government?
EXTENDED QUESTIONS:
17 Assess the strengths of the UK constitution.
18 Why has the UK constitution been criticised?
19 Should the UK constitution remain uncodified?
20 How significant were the constitutional reforms introduced by the coalition government, 2010–15?
21 Assess the benefits of the constitutional changes that have been introduced since 1997.
22 How and why has pressure for constitutional reform grown in recent years?
23 ‘Recent constitutional reforms in the UK have removed the need for a codified constitution.’ Discuss.
