By Adam Hyde
ALMOST uniquely amongst modern nations, you will not find any one document claiming to be the UK constitution.
The core reason for this is that, while our constitution is as fully formed and legally enforceable as any written constitution, the concepts that underpin our constitution would render a written document virtually pointless.
Where constitutional law is inherently complex in any jurisdiction, including those with a written constitution, our unwritten constitution adds another layer of potential confusion ready to trip up politicians and the public.
Even countries with a written constitution rely on constitutional conventions, broad concepts, and court judgements, and taking away the core document that most of these rely on can only make it more difficult to understand – and easier to misrepresent.
It is commonly said that our constitution is based on ‘gentleman’s agreements’ rather than law. This is closest to being true in the case of constitutional conventions, but is certainly not the whole truth.
Constitutional conventions are rules and processes that those involved in constitutional functions follow. They impose an obligation on those bound by them, and those bound must believe that they are required to follow them. Importantly, they must also cover an area important for the proper functioning of constitutional processes.
Key conventions cover the use of the powers still held by the Queen, as well as the functioning of cabinet within parliament.
These are more than just agreements; those who breach constitutional conventions may face serious repercussions. However, these vital rules are not enforceable by the courts.
From a fundamentalist point of view, parliamentary sovereignty means that parliament can make or repeal any law it so wishes through the passage of any act that goes through the proper process.
That law cannot be struck down by the courts or amended without statutory authorisation. Parliament may set its own processes for making laws, but cannot block an act passed by both houses from becoming law.
Parliamentary sovereignty became a prominent issue during the 2016 referendum on EU membership. During that campaign, the Leave campaign argued that parliament was no longer sovereign, as the EU was able to pass regulations that have direct effect in the UK.
It is certainly true that parliamentary sovereignty has changed significantly since the doctrine was first expressed by AV Dicey, and has been altered by EU membership.
The clash between European and UK law has created a new settlement whereby parts of an act deemed by the courts to be of constitutional significance cannot be implicitly repealed by a new act that does not explicitly state its intention to make those amendments.
Where there is no definitive list of ‘constitutional acts’, it is generally understood that the Human Rights Act, Representation of the People Acts, Parliament Acts, and the acts creating devolved that devolved parliaments fall into this category amongst others.
However, these changes do not mean that parliament is no longer sovereign. Rather, that sovereignty has changed. After all, if parliament were not sovereign it would not have been able to repeal the European Communities Act – the act that sparked this change – as the UK officially left the EU earlier this year.
Implications on policy
Politicians, campaigners, and voters who advocate radical action are rarely concerned with convention or conceptual debates about sovereignty. If policymakers are confused, bad policy usually follows – either flying in the face of vital conventions or ignoring the core concept of parliamentary sovereignty.
We have seen the impact of this several times in recent years with successive governments losing landmark supreme court judgements on constitutional matters.
Repeated attempts to act outside or near the limit of our constitution are eventually going to weaken the conventions that ensure that it functions, while those who either take a fundamental line on parliamentary sovereignty or wish to exclude parliament in favour of government are certain to create ever more friction with the judiciary.
The implications go beyond parliamentary processes, though. These cases have seen MPs and newspapers regularly attack judges who uphold the law, as campaigners claim they are creating new rules rather than upholding ones that the government should follow.
Some in power have even threatened to intervene without a change in law to ensure that they get their preferred outcome. Although this is unlikely to happen, it sets a dangerous tone.
Improving public constitutional knowledge is key
One of the most convincing arguments of those who favour a written constitution is not that it would change the law or make the constitution more robust, as most proposals would not. It is that it would make it easier to point to a document to explain those rules and how they are followed.
Despite this, parliamentary sovereignty means that delivering an effective written constitution would require significant change.
It is difficult to judge if this would water down the adaptability and strength of our current settlement, or immediately improve public understanding. After all, there are countries with written constitutions that face similar issues.
There are other solutions that can be clearly delivered today, including improving access to good information on our constitution for campaigners and the public.
The UK could also follow the lead that other countries have taken in making constitutional studies a compulsory element to education, providing young people with a greater understanding on how the laws they must follow are made, and creating a more productive civic society.
The key aim must be convincing politicians and unscrupulous campaigners that public law is important, and legitimate processes should not be seen as an establishment hindrance.
Given the success that this narrative has had, the only way to defeat it is to expose the most cynical through improving public knowledge.
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