Podcast: the Good
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 Good
The claim that the UK has no constitution was originally put forward by Bryce, but has recently been forcefully expanded and restated by Ridley ((1988) 41 Parlt Aff 340). (1) Good use of relevant academic authority - the question invites students to display their knowledge of various academic writings on the UK 'constitution'. In essence, it distinguishes a merely descriptive definition of a constitution as that body of rules and arrangements that regulates the government of a country and its relations with its citizens from what is argued to be the more important one, which Ridley believes has been in use since the American War of Independence and the French Revolution and in which the word has a much more specialised and normative meaning. Under this approach, he argues, there are four particular characteristics which a constitution must have. This essay will consider these characteristics, but will also discuss some more basic characteristics, which, it will be argued, a constitution must possess and which are not expressly mentioned by Ridley. This combined set of characteristics will then be used as a measure against which to judge the existence or non-existence of the UK Constitution. The final part of 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 brief introduction setting out the structure of the essay demonstrates to the examiner that the student has understood the parameters of the question - a frequent problem in student essays.
It is suggested that there are perhaps two essential characteristics or purposes of constitutions, at least as they are understood within the tradition of liberal democracy to which Ridley refers. The first is that constitutions are necessary in order to control the power of the State; the second is that constitutions ensure that the power of the State derives from a legitimate source. As to the first notion, constitutions may be seen to exercise such control in a number of ways. As Schauer has pointed out (Playing by the Rules, 1991, pp 118–120), they are power-allocating (3) It can be effective to use academics to set up a point and then argue further – this demonstrates that the student has understood the argument, as the question requires. : they usually distribute power amongst the different organs of government, according to law. This represents a limitation on State power in two ways. First, and more basically, there is a formal limitation; allocation of power in this way means that power may not be exercised arbitrarily by any part of government that finds it convenient to do so, but only by that organ of government which is authorised, and publicly authorised at that, to do so. This, in the simplest sense, is the idea of limited government, or government under law. Ridley does not expressly identify this as an essential aspect of a constitution, but it is submitted that this notion of power-allocation through law is implicit in his first characteristic of a constitution, that it ‘establishes’ the system of government.
The second aspect of power-allocation is rather more substantive: allocation should offer a more concrete guarantee against tyranny by separating out different types of powers and assigning them to different and separate organs of government. This is the doctrine of the separation of powers, which, broadly speaking, demands, first, that each part of government should be separate and to an extent independent of the others, second, that each organ should be vested with only one main function of government, and third, that each should be able to check the actions of the others. (4) This is appropriately concise and to the point – the essay calls for a general appreciation of the constitution and, therefore, requires only light engagement with the separation of powers doctrine. This characteristic is, to a greater or lesser extent, apparent in every single liberal constitution and must, therefore, be seen as an essential aspect of such a constitution; again, it is implicit in Ridley’s thesis.
Implicit in all the above ideas is the notion that constitutions are in some way superior to and beyond government; they state what form the government shall take and what it may and may not do. They are above government in specifying matters that are prior to the formation or election of any government, and they also bind all governments. From this requirement there logically flows another, namely, that the constitution should be entrenched so that it is not readily alterable by the government of the day. As well as being logically necessary, this requirement is also practically necessary; if the constitution was not in some way entrenched, then any government could simply remove the limitations on its power that the constitution imposed and the basic idea of controlling the power of government would be lost.
We may now turn to the application of these ideas of constitutionalism to the UK. (5) It is good practice to divide the question into its essential requirements: this essay requires the student to demonstrate that they are familiar with the notion of a constitution and can apply this to the UK. Students often mix these requirements and, therefore, fail to develop one or the other strand. Laws may only be made through Acts of Parliament that comply with all specified formalities; resolutions of the Commons alone, for example, are not laws binding on the courts (Stockdale v Hansard (1839)). Furthermore, the courts enforce a basic notion of legality; government action impinging on citizens must be justified by reference to some law that empowers the specific act done, as in Entick v Carrington (1765). However, the ability of Parliament to enact what laws it pleases means that it can pass – and does increasingly pass – laws that give government very wide discretionary powers, so that it will be difficult for the courts to find that any particular actions are not justified in law. As to the notion of more substantive limitations on government rule in the form of entrenched rights, we may note immediately that there is no comprehensive system of entrenched rights, and orthodox constitutional doctrine tells us that Parliament is competent to legislate on any matter whatever. However, it has recently become apparent that the courts will not apply 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)), so that insofar as rights are protected by EU law, they do have a special status. However, EU law does not at present provide a set of basic civil and political rights. It should be noted that a few judges have recently, and mainly speaking extra-judicially, suggested that there may be basic rights and freedoms embedded in the common law, particularly the ability of the courts to engage in judicial review of executive action – a basic requirement of the rule of law – which the judges would not allow Parliament to remove.(6) Note the attempt to be precise at this point – often students of Constitutional Law are tempted to overstate the case in law, when in fact the position is more nuanced. The most notable recent example was an obiter comment by Lord Steyn in A-G v Jackson (2006) in which he stated that ‘an attempt to abolish judicial review or the ordinary role of the courts, the . . . House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish’.(7) This demonstrates good use of recent authority.
Finally, what of the notion that the constitution must in some way be above or beyond the powers of government? One matter – parliamentary sovereignty itself – appears to be a matter of ‘higher law’, in that it is generally accepted that Parliament is unable to restrict its continuing sovereignty. This point has been thrown into some doubt as the courts have, in effect, allowed Parliament to restrict its own powers to legislate contrary to EU law. Nevertheless, there is little doubt that this restriction is ultimately one that Parliament could remove through withdrawal from the EU and probably also through the simple expedient of stating an express intention that a given Act should prevail over EU law. But, on the orthodox view, no other rule in the constitution is immune from change by an ordinary Act of Parliament, although, as just seen, there have been judicial hints that there are some fundamentals of the rule of law, in relation to which this may not be so. There is, of course, no authority, in terms of decided cases, for such a proposition. Thus, so called constitutional principles are in theory as readily changeable as rules relating to the licensing of public houses.(8) Note again that the legal rule is stated accurately setting up the more sophisticated analysis that follows. One caveat should be entered to this: the line of reasoning taken in Thoburn (2002) in relation to the refusal by the courts in Factortame to allow implied repeal to apply to the 1972 EC Act. In that case, Laws LJ held that, whilst Parliament could not bind itself in any way and had not done so in the 1972 Act, the courts could and should recognise certain Acts, including the 1972 Act, as ‘constitutional statutes’. Essentially these are those that affect fundamental rights or ‘the relationship between citizen and State in some general, overarching manner’.(9) Good use of statements made in Thoburn to develop the point. The legal consequence of recognising a statute as ‘constitutional’ was simple: ‘Ordinary statutes may be impliedly repealed. Constitutional statutes may not’. Whilst this view still allows for the unlimited sovereignty of Parliament when expressed through express repeal of a previous statute, however constitutionally significant, it does give a means of giving additional protection to constitutional fundamentals, although it is too early to say whether this revised view of sovereignty has won general acceptance amongst the senior judiciary.
Nevertheless, even under this view, Parliament could, at least theoretically, restrict the franchise, through express repeal of the Representation of the People Act (10) Again the point is well illustrated by reference to a specific example. and its replacement with a more restrictive statute, thus undermining even basic democratic principles. Hence, the basic notion, noted above, that the constitution should establish the source of governmental power and, in a democracy, establish that source as the people, is only partly fulfilled in the UK. The source of ultimate legal power in the UK is Parliament, not the people. Thus, the ‘no constitution’ thesis appears to be fairly readily made out, at least if it is taken to mean that ‘the constitution’ must consist of a form of ‘higher order’ law.(11) A clear conclusion made on the argument presented thus far.
How far has any of this changed in the UK following devolution and the advent of the HRA?(12) It is good policy to refer back to the question like this. The first point to make is that neither change has, in terms, created any ‘higher’ system of law. Both the Scotland Act and the HRA specifically affirm that they do not affect Parliament’s continued ability to reverse the changes they make, either wholly or in part. Thus, the HRA makes no attempt to entrench itself, and further provides quite specifically that if the courts find a piece of legislation, passed either before or after the HRA to be incompatible with one or more of the Convention rights, this will not affect the validity or continuing effect of that legislation (ss 3(2) and 4(6)). The White Paper on incorporation of the ECHR (Cm 3782) states quite clearly that the HRA is not intended to detract from the sovereignty of Parliament in any way. Similarly, the White Paper on Scottish devolution (Cm 3658) proclaims that ‘The United Kingdom is and will remain sovereign in all matters’, and this basic statement of principle is clearly enacted in the legislation. Section 28(7) of the Scotland Act states that the grant of legislative powers to the Scottish Parliament ‘does not affect the power of the United Kingdom Parliament to make law for Scotland’. Westminster may, therefore, still legislate in the devolved areas and may also repeal or modify the Scotland Act itself by ordinary legislation.(13) Good use of specific sections of the relevant Acts and attendant detail – this addresses the requirement of a detailed appreciation of these as indicated by their specific mention in the question.
These two pieces of legislation introduce substantive, rights-based limitations on governmental power (the HRA) and devolution of that power to a specified region (the Scotland Act). These are matters that, in most countries, would be part of ‘higher’ constitutional law, subject to change only through extraordinary procedures, themselves specified in the constitution. Instead, the opposite is provided for: following devolution and since the introduction of the HRA, Parliament is still, as a matter of law, able to invade basic rights or the legislative autonomy of Scotland as easily and readily as it may change the rate of income tax.
Thus, on one level, the ‘no constitution’ attack retains its basic force. But, on another level, its applicability to the UK has become more problematic.(14) The analysis is well structured here – it is clear that the straightforward point is concluded and the essay will now move on more detailed analysis of a more nuanced point. To take Scotland first, its Parliament and thus its government for most matters are now limited by what is in effect a codified constitution, made up of the Scotland Act itself, the ECHR and EU law. This is because the Scotland Act 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 (s 29), and further that the courts will have what can only be described as a power of constitutional review, being empowered to strike down legislation of the Scottish Parliament or actions of its Executive on those grounds. Entrenched matters are above and beyond the reach of the Scottish government and Parliament (since neither may alter the Scotland Act itself). Of course, the Westminster Parliament still has the theoretical right to legislate in the devolved areas against the will of the Scottish Parliament, and even to abolish the devolved institutions entirely, but no one seriously expects either to occur; the system would be unworkable if Westminster interfered in the devolved matters in this way, while the outright abolition of devolution has become virtually a political impossibility.
Turning to the HRA, we have noted that it is not in any formal way entrenched; nevertheless, for the first time, the rights of the UK citizenry have been authoritatively identified and stated to be fundamental. Executive actions are unlawful if they infringe such rights, unless primary legislation inescapably mandates or authorises the infringement (s 6). Daly (2001) confirms that this requires courts to assess for themselves whether Executive decisions have infringed Convention rights, affording a far higher level of protection for those rights than was available under judicial review, although there has been some vacillation about this point in some of the decided cases (see, for example, I. Leigh [2002] PL 265). For the first time, statutory construction fully and unequivocally recognises the importance of basic rights – courts have to read both past and future legislation into conformity with the Convention rights if possible (s 3(1)). Cases such as A (2001), Ghaidan v Mendoza (2004) and Secretary of State for the Home Department v AF (no 3) (2009) indicate the radical force of this provision, and how far it subordinates normal canons of statutory interpretation to the overriding imperative to uphold Convention rights if possible, though other cases, such as Re W and B, indicate a less activist approach. Ministers now have to make a statement when introducing legislation into Parliament that it does not infringe Convention rights, or that they believe it does, but they wish to proceed in any event (s 19).(15) A strong survey of the relevant cases on s3 – addressing the requirement in the question of a general overview of the court's response to the HRA.
Meanwhile, ambiguously worded legislation, which may infringe rights, can be dealt with via the interpretative obligation of the courts noted above. Together, and depending upon how rigorously the courts enforce the interpretative injunction in s 3(1) of the HRA (as indicated above, the cases to date indicate that it is being taken very seriously, though the outcomes vary), this adds up to quite a strong guarantee that legislation will no longer, in practice, infringe basic rights. All this, however, can be removed, simply by repeal of the HRA.
In conclusion, therefore, while no form of higher basic norms has, as a matter of law, been created, the effect of the canvassed reforms may in practice be indistinguishable. The basic ability of Parliament to remove so called constitutional guarantees, perhaps only by express repeal, will still remain, at least as a matter of strict law. However, Ridley’s suggestion that the concept of ‘constitutionalism’ at the normative, conventional level cannot be deployed in the UK will lose much of its force, as certain notions of devolved power at least attain an authoritatively declared basis and – as is likely – become fenced round by strong inhibitory conventions. In that sense, these reforms inject a modest dose of normative constitutionalism into the UK government and society, while leaving us formally still in search of a constitution.(16) An effective conclusion addressing the whole question directly.