A Written Constitution for the United Kingdom (essay)
Reproduced on realson.co.uk
The United Kingdom of Great Britain and Northern Ireland stands almost unique in the world1 in that it operates without a fully codified constitution. This does not of course mean that it has no constitution; it would be perfectly possible to write a book entitled “The Constitution of the UK” in which the executive, legislative and judicial operation of the country was accurately and exhaustively described. What the UK lacks that other countries have, is a set of laws that are considered so sacrosanct that they cannot be altered without special procedures. Instead, the UK has one principle that has emerged over the centuries: Parliament is Sovereign.2
Parliamentary Sovereignty is, in essence, the principle that Parliament, that is the triachy of the Queen-in-Parliament, the House of Lords and the House of Commons, is the final arbiter of what is and what is not law. Parliament derives its power from the inherent right that demonstrably exists in the fact that it wields unchallenged power. An effect of this is that one Parliament cannot bind future Parliaments to follow its decisions. This has in recent years been contested; it has been suggested that the UK’s accession to the European Union gives sovereignty to that body, it has also been suggested that the Human Rights Act may be entrenched in the law so that it cannot be repealed and finally it has been noted that Parliament has granted what is presumably irrevocable independence to colonies.
In my view, none of these points hold much water. Firstly, the UK Parliament is fully entitled to delegate some of its lawmaking powers to other institutions, such as the EU, and it retains the right to recover them. That the effect of exercising this right may mean that the UK is ejected from the EU is irrelevant to the fact that Parliament retains the authority to do so. Parliament could even legislate that the UK remains part of the EU in spite of this rejection, however, other countries would not be bound to respect this. The Human Rights Act could be repealed in the same manner as any other act, indeed, it was a manifesto pledge of the Conservative Party to do so if they won a majority at the last election. Contrary to popular belief, judges cannot overrule legislation based on the Human Rights Act, they may simply issue a declaration of incompatibility, which leaves it up to Parliament to decide if they will repeal the offending legislation. The colonial argument is perhaps stronger, however, it has long been accepted that the UK Parliament may legislate to ‘outlaw smoking on the streets of Paris’ it is simply accepted that the French authorities would never enforce such a rule. Consequently, were the acts granting colonial independence repealed, the UK Parliament could conduct itself as if it ruled those territories. If they refused to obey their new laws, the laws could be enforced in the traditional manner.
It is my opinion therefore that the fundamental constitution principle of Parliamentary Sovereignty remains.
There are moves afoot to bring the UK into line with the rest of the world and for a Parliament to pass into law a written constitution of the UK. What exactly this would mean is unclear. A codifying of some of the obscure parts of the constitution would doubtless be welcomed by most people, and indeed there has been a general trend towards this over the centuries since Magna Carta.3 The difference in this case, it would seem, would be to adopt the principle that these laws could not be amended without a special procedure, for example, requiring more than a bare majority.
What would happen then if the next Parliament, perhaps with a different governing party wished to remove the Constitution Act? They might try to do so, but fail to achieve the numbers required under the Constitutional Act to remove it. They might then contend that the principle of Parliamentary Sovereignty means that despite the Act purporting to bind Parliament to achieving a two thirds majority, it cannot, constitutionally do so and is consequently repealed by a simple majority. This would render the whole exercise somewhat pointless.
Is it then impossible for the UK to adopt a constitution? It might be suggested that Parliament does in fact have the authority to change the way that it makes legislation, provided it does not force a later Parliament not to make legislation at all. If this were the case, then an introduction of a requirement for a special majority in constitutional matters would be entirely valid.
In 2005 the House of Lords4 considered the case of Jackson v Attorney General5. This was a somewhat spurious case brought by the supporters of fox hunting to challenge a recent ban. They alleged that the Parliament Act 1949, which allowed the House of Commons to pass legislation without the consent of the Lords was invalid because it had been made under the Parliament Act 1911 and contravened an unwritten principle that it the latter act could not be used to increase its own powers. The Lords rejected this, finding that there was no prohibition in the act in doing so. The only prohibition was on Parliament using the 1911 act to extend its own term.
This raised the interesting question of whether the 1911 act could be used to pass an act amending itself to allow Parliament to use it to extend its term. The Lords held that despite the fact this was not specifically prohibited, it would be invalid, and this was the majority view. It could be argued by extending this principle that Parliament had in effect bound itself in this case. In my opinion, this argument is weak in relation to a written constitution. Whereas constitution would seek to permanently alter the way in which Parliament makes laws, there is nothing preventing Parliament from abolishing or amending the Parliament Act using its traditional method. This difference is a crucial distinction and is supported by their Lordships’ analysis. Lord Bingham, albeit dissenting even suggested that there was nothing to prevent Parliament amending the act, since the act itself does not prohibit it but went further to suggest that “even if there were such a provision it could not bind a successor Parliament.”
I believe, however, there is yet a solution to this. It lies in the fact that Parliament is not constantly sitting but must be called by the Queen. There is, so far as I know, no constitutional prohibition on limiting the Royal Prerogative. It might be that the personal consent of the reigning monarch would be required, but it could readily be expected that this would be given, provided there was democratic support for the legislation. Parliament could even pass a law abolishing itself.
I do not suggest it need go this far. I suggest that instead, Parliament simply create a new legislative assembly, to whom it delegates all of its lawmaking powers, except in respect of the Act that will form the new constitution. Contained within that Act will be a provision that Parliament may not be recalled, except in the case of the new legislative assembly voting to do so by a special majority. Membership of the new legislative assembly could be required for membership of Parliament and this would be automatic on election as an assembly member.
This would mean that if a vote was held on a constitutional matter, the bill would simply need to contain a section recalling parliament. If it is passed by a two-thirds majority, Parliament would have been recalled and the members present would be fully entitled to vote on the proposed change. It might be argued that these two events could not occur concurrently and it may be desirable in any case to have a second vote after Parliament has been recalled. If so, this would not be too great an obstacle, the members who voted for Parliament’s recalling are the same as those who will now vote on the constitution. It is unlikely that enough would change their minds to erode a simple majority but if they did, then it is probably unwise to pass the amendment. Another advantage, of a second vote, albeit a purely decorative one, is that it would allow for a State Opening of Parliament. This lavish affair of pomp and circumstance is arguably too anachronistic these days to take place every year, and yet many (myself included) would be sorry to see it reformed to the point of abolition. A constitutional amendment however would presumably be such a rare event and one of such importance that the spectacle could be justified.
It seems then that there is no unsalable constitutional bar on a written constitution. Given that this is the case, it is unlikely that my solution suggested above would be adopted; the mere possibility that it could may be enough to bind future Parliaments to respect a constitution, were one ever passed. Even if they did not, it might be argued that a written constitution, passed in good faith, has the effect of creating the new legislative assembly I detail above; it is simply that this legislative assembly is also called the Parliament.
I would not, incidentally, support a written constitution myself, and I am in a way disappointed to find that there are mechanisms by which one could be enacted. I have always seen Parliamentary Sovereignty as the final check on absolutism and it is disturbing to realise that Parliament could, given the right circumstances, bind future legislators to follow its will.
1It shares this distinction with New Zealand, Israel and San Marino.