Mapping the path to codifying – or not codifying – the UK’s constitution

Written evidence submitted by The Constitution Society (C D E 05)

1. The Constitution Society (CS) is an independent, non-party educational foundation which works to promote informed debate about constitutional reform. We take no position on specific reform proposals but advocate better legislative standards and oppose ill-considered, piecemeal change.

2. We have read Dr Andrew Blick’s paper on ‘The Existing Constitution’ (‘ Blick ’) with great interest and commend it as a clear and comp rehensive analysis of the current constitution in the context of the debate about the desirability and practicality of codifi cation. This response focuses mainly on the issue of constitutional amendment and possible mechanisms for distinguishing and entrenching constitutional legislation short of full codification .

Desirability and likelihood of codification

3. Blick provides a perceptive and even-handed analysis of the arguments for and against a codified constitution (pp69-71). CS neither supports nor opposes the introduction of a codified constitution. The case for codification rests on two different sorts of argument which do not sit entirely comfortably together. First, there is the view that the absence of a codified constitution is in itself undesirable because, inter alia, it results in a lack of certainty about the relationship between different organs of state, or means that fundamental rights are not adequately protected, or it is internationally anomalous. Second, there is the view that those features of the current constitution which are held to be in need of reform-for example the composition of the House of Lords or the excessive power of the Executive-would be corrected by a process of codification. If codification implies entrenchment, there are few who would argue in favour of codifying the constitution exactly as it stands today.

4. The codified constitutions of other states vary greatly in many respects, but have one feature in common: they prescribe a process for constitutional amendment. Nearly always, this sets a higher hurdle than is required for ordinary legislation-normally some form of legislative super-majority. Our own constitutional arrangements include no equivalent feature: in Britain there is no process for constitutional change other than ordinary legislation, and nor is there any clear or generally agreed distinction between constitutional and other statutes.

5. Before 1997, this was arguably not a matter of a great practical importance since significant constitutional change was rare. The only major constitutional innovation in the fifty years after 1945 was accession to what is now the EU in 1973, and there was a consensus that this was such an event of such importance that endorsement by popular referendum was required. By contrast, the period since 1997 has been marked by frequent, sometimes hectic, constitutional change. The Blair Government undertook an extensive programme of piecemeal constitutional reform, intended in part to demonstrate its modernising credentials and restore popular confidence in the political system generally. Since 2010, the Coalition Government has also pursued a busy programme of constitutional reform, much of it arguably intended mainly to cement the political bargain between the coalition partners.

6. Constitutional tinkering, whether well-intentioned or self-serving, is now an established part of every government’s legislative programme and there is no reason to believe that this will change in the foreseeable future, especially if coalition government becomes the norm. It is entirely predictable that constitutional horse-trading will be a feature of future coalition agreements, especially since the Liberal Democrats-a party with a strong historic commitment to constitutional reform-are a likely component of any future coalition. CS believes that frequent constitutional change, particularly when it is widely seen as self-interested, is destabilising and erodes rather than restores public confidence in the political system generally.

7. Britain has not in modern times experienced a political crisis of sufficient gravity to require an effective re-formation of the state. The constitution remains multi-sourced and uncodified because there has never been a pressing need to codify it. In the absence of such a ‘constitutional moment’, there are formidable political obstacles in the path to codification. It is of course possible that some future event-Scottish independence is perhaps the most plausible candidate-may provide the necessary trigger for constitutional codification, but from today’s perspective this seems rather unlikely. In any event CS believes that it would be unwise to rely on the prospect of eventual codification to address the current absence of a satisfactory mechanism for constitutional amendment. The remainder of this submission examines some possible approaches to improving the process of constitutional change short of full codification.

The process of constitutional change

8. There are three separate but related questions which frame any proposal for an improved process of constitutional change: how is major constitutional legislation to be distinguished from ‘ordinary’ legislation, what special or separate legislative processes should apply to it and what superior recognition should the courts accord it?

Distinguishing major constitutional legislation

9. If major constitutional legislation is to be treated differently by Parliament or the courts there must first be some mechanism for distinguishing ‘constitutional’ and ‘ordinary’ legislation. There are two alternative possible approaches to identifying major constitutional statutes, which may respectively be termed definitional and certificatory:

10. In the definitional approach, major constitutional legislation is legislation which falls within a fixed and generally agreed definition. It is an approach which has a strong instinctive appeal because it appears to provide an objective test. However , in practice definitional approach es are undermined by the difficulty of formulating a definition without using terms which require subjective interpretation. For example, Professor Sir John Baker’s respected definition (1) , leaves a great deal to the reader’s view of what constitutes a ‘substantial alteration’ .

11. In the certificatory approach, major constitutional legislation is that which is held to be so by a certifying authority . This approach avoids interpretational difficulties but requires a certifying authority which is generally accepted as politically neutral . If this approach were to be adopted, it is suggested that the Speaker would be the most obvious, and appropriate, certifying authority (2).

Special legislative processes

12. At present, the only distinction between constitutional and ordinary legislation is that bills of ‘first class constitutional importance’ take their committee stage on the floor of the House of Commons in a Committee of the Whole House. There is no clear process for identifying which legislation is of ‘first class constitutional importance’ for, as Professor Robert Hazell has noted, ‘whether a Bill is deemed to be constitutional is decided only in part by reference to a set of principled criteria, because the decision is made by the business managers in the House of Commons.’ (3)

13. CS has advocate d the introduction of more rigorous legislative standards for major constitutional legislation, including an enhanced requirement for consultation and pre-legislative scrutiny (4 ) . The House of Lords Constitution Committee has recommended that major constitutional legislation should require a written ministerial statement setting out the impact of the proposed legislation on existing constitutional arrangements (5). Mechanisms of this kind can be viewed as the weakest form of special legislative process : they would encourage a more considered approach to constitutional change but would not seriously restrict the ability of a government with a bare majority in the Commons to effect major constitutional amendments.

14. In states with codified constitutions, constitutional amendment usually requires a legislative super-majority. Until recently, the concept of a supermajority was foreign to the British parliamentary tradition. However the Fixed-term Parliaments Act 2011 introduced a super-majority requirement for early dissolution, and this may be considered a precedent, albeit arguably indirect, for a general application of this mechanism to major constitutional legislation. However , t here are some obvious difficulties with such a proposal. It would seem perverse if constitutional legislation enacted on a simple majority (as is the case with all current constitutional statute) were to require a super-majority before it could be amended or repealed. On the other hand, if a supermajority were required only to enact or amend future legislation, the courts would be confronted with two different categories of constitutional statute. Then there is the question of the status of the statute which imposed a general requirement for a super-majority : if this were passed on a simple majority, would future parliaments regard it as binding ?

15. An alternative approach, discussed by Blick (p12), would see the Parliament Act 1911 amended to extend the exemption from the Act’s general provisions to all major constitutional legislation (6). The effect of such an amendment would be to make it impossible for a government to enact major constitutional legislation unless it could secure a majority in the Lords. CS suggests that, if such a measure were introduced, serious consideration would need to be given as to how this condition would or would not apply to bills which repealed or amended existing constitutional statutes enacted since the passage of the 1911 Act. More generally, CS is cautious about this proposal because it would make the House of Lords a constitutional guardian when that House’s own composition and powers are themselves a significant constitutional issue.

The courts

16. Historically the courts have not general ly sought to distinguish constitutional and ordinary statute or to accord any superior status to a category of constitutional law. The decision in the Thoburn case is exceptional in recognising a category of ‘constitutional legislation’, albeit in the limited context of the question of implied repeal. However , t here are other statutory precedents which have established the concept of a hierarchy of laws . These suggest two alternative methods by which Parliament could specifically empower the courts to accord a superior status to constitutional statutes:

17. The European Communities Act 1972 incorporated EU law into domestic law and provided as a matter of domestic law that EU law has hierarchical supremacy. This principle was applied by the courts in the Factortame litigation to strike down domestic legislation which was held to be in conflict with EU law. In the same way, Parliament could legislate to accord hierarchical supremacy to those statutes which Parliament had certified as constitutional, empowering the courts to strike down conflicting ‘ordinary’ legislation.

18. The Human Rights Act 1998 empowers the courts to issue a declaration of incompatibility if other legislation is held to be in conflict with the provisions of the Act. Parliament could legislate to give the courts an equivalent power to issue a declaration of incompatibility if ‘ordinary’ legislation was held to conflict with legislation which Parliament had certified as constitutional. The conflicting legislation would not be struck down, but the fact that the courts had declared it incompatible would create political pressure for amendment or repeal.

19. CS suggests that, if Parliament had certified certain statutes as ‘constitutional’, then (even in the absence of specific legislation of the types described above) the courts might reasonably accord those statutes a superior status in the event of conflict with other legislation. It is often argued that to allow the courts’ powers to distinguish between Acts of Parliament, and potentially to strike down legislation, would be to pose a fundamental challenge to  the doctrine of parliamentary sovereignty. However, as Lord Laws has argued extra-judicially, the recognition of a hierarchy of laws does not remove Parliament’s ability to legislate in any way it chooses (7). For the courts to apply a superior status to laws which Parliament itself has certified as constitutional would not imply any common law challenge to Parliament’s authority, but would on the contrary represent an application of legislators’ intentions.

The Israeli approach

20. Professor David Feldman’s recent paper on The nature and significance of ‘constitutional’ legislation (8) includes an interesting exposition of the approach to distinguishing major constitutional legislation which has evolved in Israel, one of the very small number of democratic states lacking a codified constitution:

.... successive Knessetim have made what they called ‘Basic Laws’. These are in effect constitutional laws which cumulatively contribute to the construction of a constitution for the State. Basic Laws have been passed by the ordinary legislative procedure and by ordinary parliamentary majorities. There was doubt about the status of Basic Laws relative to other laws in the State’s normative hierarchy. In due course the Supreme Court of Israel held that Basic Laws have higher, constitutional status, and that ordinary laws are invalid if incompatible with them. The Court decided that, when passing a Basic Law, the Knesset exercises its original function as a constituent body for the State of Israel, and as such its legislation has higher normative status than Laws which it makes in its ordinary, legislative capacity. Laws made in the exercise of the constituent power of the Knesset are identifiable by their titles; if a law is called a Basic Law, it is a Basic Law, regardless of its content or effects.

21. CS suggests that the Israeli example represents a possible minimalist approach to distinguishing constitutional and ordinary legislation in Britain. Under this proposal, constitutional legislation would continue to be introduced as ordinary statute, perhaps subject to some of the enhanced parliamentary procedural safeguards discussed in paragraph 13. Parliament would undertake a one-off certification of major constitutional legislation already on the statute book, and would begin to certify new legislation appropriately. In due course the Supreme Court would be confronted with a case in which constitutional and ‘ordinary’ laws were in conflict, and, applying Parliament’s intentions, would accord superior status to the former. Following that judgement, the superior position of constitutional law would be confirmed as a consensual achievement of Parliament and the courts.

September 2012

Notes

(1) Sir John’s definition is cited in House of Lords Constitution Committee Report ‘The Process of Constitutional Change’ July 2011; s11.

(2) The Speaker has an equivalent authority to certify Money Bills under the 1911 Parliament Act.

(3) Robert Hazell, ‘Time for a New Convention: Parliamentary Scrutiny of Constitutional Bills 1997-2005’, Public Law, Summer 2006, 247-298

(4) Nat le Roux and Richard Gordon QC, Response by The Constitution Society to The Political and Constitutional Reform Committee on questions in the call for evidence: ‘Ensuring standards in the quality of legislation’, April 2012

(5) House of Lords Constitution Committee Report ‘The Process of Constitutional Change’ July 2011

(6) Sec 2 (1) of the Parliament Act 1911 provides that the curtailment of the Lords’ power to obstruct legislation which has passed the Commons does not apply to a Bill containing any provision to extend the maximum duration of Parliament beyond five years.

(7) Sir John Laws, ‘Constitutional Guarantees’, Statute Law Review 2008, 29 (1), 1

(8) David Feldman, ‘The nature and significance of "constitutional" legislation’, Paper presented at The Society of Legal Scholars’ Bristol Conference September 2012

Prepared 19th November 2012