Podcast: the Fair
A number of commentators have argued that, in the only meaningful sense of the word, the UK has no constitution. Do you agree, and has this remained true following devolution to Scotland and the Human Rights Act 1998?
Podcast: the Fair
The UK may have no constitution because a constitution is more than simply a body of rules and arrangements that regulate the government of a country and its relations with its citizens (Ridley ((1988) 41 Parlt Aff 340) (1) While relevant, the use of this authority could be better explained. . This essay will consider in what way this is the case and discuss whether there is not a further definition of a constitution beyond that espoused by Ridley. This established, the essay will examine whether the introduction of devolution and the (at least, partial) incorporation of the ECHR via the HRA changes the conclusions previously reached on the UK Constitution. (2) A fair introduction setting out the structure of the essay.
A constitution must state what form the government shall take and what it may and may not do. This contains various notions, the first notion is a limited notion of government under law (Schauer (Playing by the Rules, 1991, pp 118–120). (3) This point could have been developed to describe its relationship with Ridley as set out in the introduction, and to demonstrate a greater understanding of what 'government under law' is. In the UK, government interference with individuals must be justified by reference to some law that empowers the specific act done, as in Entick v Carrington (1765), so in a limited sense the UK corresponds to aspects of this notion. Another notion is that of preventing a centralised dictatorship by separating out different types of powers and assigning them to different and separate organs of government – the doctrine of the separation of powers.
Under many constitutions (4) An example would benefit this point. there are some laws that the government cannot make at all; broadly, those which would infringe what are seen as fundamental human rights. Implicitly, that constitutions are in some way above government and, therefore, that the constitution should be entrenched,so that it is not readily alterable by the government of the day. Parliament is competent to legislate on any matter whatever. However, there is an exception for Acts of Parliament that conflict with rights deriving from European Community law (Factortame Ltd and Others v Secretary of State for Transport (No 2) (1991)), but EU law is far from a Bill of Rights at present. The HRA 1998 changed this situation in that it is a UK based statute enshrining certain basic rights and freedoms as set out in the ECHR. (5) The structure is rather messy at this point – it would be clearer to keep discussion of the attributes of a constitution, their application to the UK and the impact of the HRA separate. However, the HRA affirms that they do not affect Parliament’s ability to legislate contrary to the rights it contains (i.e. no entrenchment (ss 3 and 4)).
The only part of the UK ‘constitution’ of which this could be said is the principle of parliamentary sovereignty itself. (6) This point could be developed further. However, the operation of this doctrine is to deny the UK constitution, as so called constitutional principles are, in theory, as readily changeable as rules relating to the licensing of public houses; for example, Parliament could expressly repeal the Representation of the People Act (7) Good reference to a specific example. . (Although see the line of reasoning taken in Thoburn (2002) that the courts could and should recognise certain Acts, including the 1972 Act, as ‘constitutional statutes’.) (8) This is an important point and could have been further developed. As the source of ultimate legal power in the UK is Parliament, not the people, it is arguable that the UK does not have a constitution, as it does not even defend its supposedly founding principle of democracy.
The UK may, therefore, have a weak constitution (9) 'Weak' is rather vague. but commentators such as Ridley go too far in suggesting that the UK has no meaningful constitution at all, as there is a clear recognition that certain actions of government could be considered ‘unconstitutional’ in a normative and conventional sense. This has been strengthened by certain developments; the Scotland Act (s 29) provides that Acts of the Scottish Parliament or Executive that are outside the powers devolved to it by the Act, or that infringe Convention rights or EU law, will be ultra vires, and thus that the courts will have to engage in a type of constitutional review. However, the day to day experience of the Scottish people is now to live under a government that, in most areas, is constrained by a written constitution, which will protect basic rights, specify the electoral system and set the basic shape of government. Those entrenched matters are above and beyond the reach of the Scottish government and Parliament (since neither may alter the Scotland Act itself). As to Westminster, as devolution and the new Scottish government have become firmly entrenched, a convention has become established to the effect that the Westminster Parliament will not legislate in the devolved areas without the consent of the Scottish Parliament, just as such a convention developed during the period of the Stormont government of Northern Ireland between 1920 and 1972. (10) Good use of examples. This constitutional convention does not suffer from the indeterminacy of other, vaguer, conventions, such as the principle of individual and collective responsibility of government to Parliament, an indeterminacy that allows such principles to be manipulated by the government of the day and undercuts the confidence of any attempts to label a given act as clearly ‘unconstitutional’. This is because the Scotland Act lays down in considerable detail the reserved powers of Westminster and, thus, the powers devolved. Devolution has thus become ‘constitutionalised’.
In conclusion, therefore, while Parliament is strictly legally able to remove constitutional guarantees, perhaps only by express repeal, the suggestion that the concept of ‘constitutionalism’ at the normative, conventional level is inapplicable to the UK is inaccurate and the HRA and Scotland Act confirm this. (11) A fairly effective conclusion albeit rather brief.