Mapping the Path to Codifying - or Not Codifying - The UK's Constitution

Written evidence submitted by Sebastian Hordern (CDE 08)

Mapping the path to codifying - or not codifying - the UK's Constitution:

The Existing Constitution

Introduction

1. The author is a chartered accountant, with a background both in the profession and as a policy adviser with a business federation. This submission is made in a personal capacity.

2. In answering the specific questions raised in the paper on "The Existing Constitution", this submission aims to highlight the potential advantages of a relatively short constitutional settlement designed to provide the mechanism for incremental codification of the constitution, as a practical alternative to, or perhaps a step towards, a more comprehensive exercise.

Questions arising

1) How significant is the lack of a codified UK constitution?

3. Britain has a democratic tradition which is not properly reflected in our formal constitutional arrangements. There is no sense of ownership of, or responsibility for, the constitution and consequently most people regard it as remote and not particularly relevant to them. This contributes to public cynicism about politics and disengagement from the political process. Codification alone will not address this, but if there were to be a settlement giving the people a formal role in adopting new, entrenched constitutional statutes (basic law), this should ultimately lead to greater public confidence the constitution, and more readiness to consider the merits of proposals for constitutional change.

4. Other relevant issue are identified in paragraphs 6 and 7.

2) What are the main a) advantages and b) disadvantages for the UK of an uncodified constitution?

5. The only real advantage in an uncodified constitution is that it avoids all the problems involved in achieving a codified one. The theoretical advantage of flexibility is one that is too easily exploited for self-serving reasons. Concerns over judicial interpretation are misplaced where the constitution is enacted by Parliament subject only to adoption by the people in a referendum, as no external or supranational authority is involved. As with all legislation, if politicians do not like the courts’ decisions their recourse is to change the law.

6. The main disadvantages of an uncodified constitution are uncertainty and lack of transparency which make constitutional change unnecessarily difficult, as every proposal creates the potential for dispute over procedure as well as substance. Because the rules are not in a readily accessible form, most people are largely unaware of them or their deficiencies, and so do not appreciate the need for change. The result is that the executive has excessive power and discretion on constitutional matters, often at the expense of the rights and liberties of individuals and minorities, and of local democracy.

3) Are current arrangements for the amendment of the UK constitution satisfactory?

7. The current arrangements are unsatisfactory because they allow a transient majority in Parliament reflecting the support of only a minority of voters to make major changes, without any obligation to achieve consensus. The decision on whether or not to hold a referendum is entirely at the Government’s discretion, and can therefore be made on the basis of political advantage. Other defects are identified in paragraph 6 above. These issues could be addressed through a new constitutional settlement as suggested in paragraph 3.

8. The need for consensus could be met by requiring new, entrenched constitutional legislation to gain the support of a super-majority, perhaps on a free vote, in the House of Commons, before being put to the people in a referendum for adoption as basic law. By this means, Parliament would be proposing that important constitutional legislation be given special status above that of ordinary legislation, but the people would have the final say as a further check on partisan behaviour.

4) Is the current role for the judiciary in upholding basic constitutional principles and rights satisfactory?

9. It is probably the most satisfactory aspect of our current rather unsatisfactory constitutional arrangements. While enacting legislation is a political role performed by Parliament or other elected bodies, interpretation of law is a professional role requiring professional skill and judgment. This applies as much to constitutional law as any other and underlies the principle of separation of powers in relation to judicial functions, which is vital if the rights of minorities and of disadvantaged groups are to be protected and there is to be confidence in the impartial application of the law. It is essential that the independence of the judiciary is maintained, and that there is no political influence in judicial appointments. The US constitution, for example, is founded on the principle of separation of powers, but this has been undermined by excessive political influence in the appointment of judges and other legal officers.

10. There is scope for giving the judiciary a greater role in balancing potentially conflicting constitutional principles and competing rights, including Human Rights, particularly in the context of a new settlement. Under such a settlement the courts would adjudicate in any conflict between basic law, Human Rights law and other legislation. This would not be giving the courts the power to quash Acts of Parliament by reference to some higher authority than Parliament, as basic law and Human Rights law would after all be Acts of Parliament, albeit of higher status than ordinary legislation. Even if Human Rights or other law is drawn from international conventions, this only has effect to the extent stipulated by Act of Parliament.

11. More generally, greater use might be made of purposive legislation (legislation which includes a statement of the purpose for which it is enacted) to prevent the law being misused for purposes not intended by Parliament.

5) What difference would codification of the UK constitution be likely to make? Are there any particular difficulties it might resolve? Are there any problems it might create?

12. Codification would address the issues identified in paragraphs 6 and 7. The reduction in uncertainty over our constitutional arrangements, particularly conventions, would make it easier to implement necessary change. However, on its own it could be seen as a politicians’ or establishment issue, risking a cynical reaction, and would not achieve a greater sense of public participation. Hence the proposal for a new settlement, involving the voters in the process.

6) What are the prospects for the introduction of a codified UK constitution? What sort of circumstances might be conducive to such a development and how likely are they to come about?

13. There is little prospect of the introduction of a complete, codified UK constitution as a one-off exercise. However, the prospects for codification could be improved if a reliable and practical mechanism for incremental codification could be devised.

14. Obstacles often identified to codification of the constitution are the absence of agreement on the nature and scope of parliamentary sovereignty, a lack of appetite for constitutional change among the wider population, and the difficulty in reaching a consensus acceptable to Parliament on all or even most of the key areas all at once. Overcoming these would appear to be an essential precondition for codification.

Parliamentary sovereignty

15. Parliamentary sovereignty is a well-established doctrine, but its nature and scope are a matter of opinion and dispute. The issue has been presented by the House of Commons European Scrutiny Committee as a debate between those who see it as absolute and unqualified, and those who view it as a common law principle open to revision by the courts.

16. The absence of any source for the doctrine means that it is based on the assertions, often conflicting, of academics and other commentators, sometimes referred to as ‘works of authority’, and obiter dicta comments by judges. However, without either actual evidence or identifiable authority derived from legislation, treaty or other legal document or binding case law to support them, these assertions are really no more than opinions, and in a democratic context it is not obvious that they should carry more weight than the opinions of other citizens. They cannot reasonably be allowed to stand in the way of sensible reform based on democratic consent.

17. Whatever view is taken of sovereignty, it is clear that Crown, Parliament and the people acting together are in full possession of it, and therefore a settlement agreed by these three stakeholders can provide a definitive and reliable basis for the future development of the constitution. The people’s consent could be obtained in a referendum. Such a settlement would be binding on all parties and could be used to define the scope of parliamentary sovereignty, effectively resolving the debate.

18. Any subsequent legal challenge to the settlement would be unlikely to succeed, given the absence of any hard evidence on which a challenge could be based. The courts would have a free hand in such circumstances, and would surely uphold a settlement enacted by Parliament and adopted by the people in a referendum in accordance with all proper parliamentary and democratic procedures. To do otherwise would cause a major constitutional crisis with no obvious solution; an outcome unlikely to have much appeal.

Appetite for change

19. The reason for the apparent lack of interest in constitutional issues is largely the fact that there are so many other issues and concerns that have a far greater and more immediate impact on citizens’ lives. It is therefore difficult to get people to give their minds to constitutional questions, or to view them as anything other than a part of the political game in which politicians seek to gain advantage for their party.

20. This means it is likely that only a minority would be ready to engage with a comprehensive exercise involving a lengthy and resource intensive consultation, including a convention. The danger is that this would be seen as an expensive distraction from dealing with the country’s real problems.

21. People would be more receptive to a simpler approach involving a relatively short and more easily understood constitutional settlement, and a more straightforward consultation procedure. The settlement would provide for incremental codification of the constitution, and would be the first step in a process involving occasional referenda on significant constitutional issues. This should serve to increase readiness to engage with such issues, as people become more familiar with the procedure.

Reaching consensus

22. Another risk in attempting a comprehensive codification exercise is that too much would represent the lowest common denominator of what could be agreed, which would be a poor return on all the time and effort put in. There is also a danger of disillusion if it involved a constitutional convention which produced an ambitious draft which Parliament then drastically curtailed, or alternatively a convention whose terms of reference were so circumscribed that it was seen as little more than a fig leaf. While the Scottish Constitutional Convention is an encouraging precedent, its devolution proposals were not difficult for Westminster to accept as they resulted in little obvious change for the rest of the UK. A UK-wide constitution would be a different matter.

23. A more limited settlement as suggested would enable the constitution to continue evolving on a cumulative basis as agreement is reached on individual areas. It would not immediately address any perceived lack of coherence in our present constitutional arrangements, but there is no reason why this could not be reviewed as part of the on-going codification procedure.

24. This approach could bridge the gap between supporters of the status quo and advocates of an all-embracing formal constitution. It has the advantages of removing the need for an almost certainly unattainable consensus on a comprehensive constitution in the short term, maintaining the traditional evolving nature of our existing arrangements, while providing the certainty and transparency that is lacking at present. Eventually this process could lead to full codification once enough basic law had been established, if that were seen as desirable.

Conclusion

25. Circumstances conducive to codification are unlikely to occur without a positive effort to create them. This can best be done through a new, binding constitutional settlement between Crown, Parliament and people, which would provide the mechanism for incremental codification. A consensus should be achievable on such a settlement provided it does not alter the balance of advantage between the political parties. Once the settlement is in place, codification co uld proceed as circumstances allow, without the need for further debate on procedure.

30 August 2013