Category: British Constitution

As Declared by Collymore v AG, the constitution declares supremacy of the law. However, when it comes to the Caribbean, we are in a peculiar situation; our laws are transcribed from Britain. Our constitutions are model after a variant of the Westminster system maintaining colonial presence in the Caribbean, despite us being independent states. The line from Drayton, ‘The worm in the mango of constitution is an idea of law as dominion and subordination.’ speaks to the captivity that Britain still holds, and we afraid of letting go. Britain still having its hands dipped into the Caribbean stew. The modern anglophone Caribbean constitution bears the imprint of a long colonial laws imprinted of the Caribbean due the hierarchy of colonial differences. The question now left to ask is when will the Caribbean let go from the Westminster System of the constitution and create a new one that speaks to the core values of the Caribbean Society?

The Westminster model presents a problem for the Caribbean as it aims to maintain the status quo of the colonial era. Essential features such as: First, the entrenchment of property rights in the Constitution.Second, entrenchment of the two-Party system. Third, preservation of the laws, institutions, and symbols of the colonial state.And fourth, alliance with the Western powers in the Cold War. All show ways in which colonial symbols were passed down and maintain despite our declaration of freedom. The implantation of the colonial mindset of black elite of the Caribbean prove successful as they further maintained a system that further continuity instead of rupture. The irony of such traditionalism are not hard to miss as Black Nationalist align themselves with political traditions that systematically oppresses and excluded people of colour. This proves problematic as they were some of the most critical voices of the colonial system.

In other words it comes as no surprise as Eric William a previous Prime Minister of Trinidad and Tobago, one of the fiercest critics of colonialism, slavery and capitalism, declared ‘That if the Parliamentary system is good enough for England, it is good enough for us.’ And even a previous Prime Minister of Jamaica Norman Manley shared similarities, asserting the view that, ‘the British Constitution is the best in the…the only good system in the world.’ Both Eric Williams and Norman Manley as Drayton states both ‘simply wanted command of their own state apparatus within the sphere of British dominance.’ It simply leads to not only their nation downfalls robbing us of truly becoming independent states with laws catering to our unique demographic and history. Louis Lindsay, a Jamaican political scientist summarized it perfectly in the case of Norman Manley. He (Norman Manley) simply did not want to ‘jeopardize the country’s chances to receive use of institutions of Westminster government.’ Many others like them both saw how tantalizing it was to keep the system that afforded to them almost dictatorial like power. The office of the Prime Minister provided that much.

Furthermore, the constitution ascribed to the Westminster system seemed to have betrayed the Caribbean People. It speaks a lot about the state of mind of our Governor General, Prime Minister, Judiciary and other offices of power within each jurisdictions’ local government when holding an office each is required to give an oath swearing ‘to be faithful and bear true allegiance to her Queen’s Majesty Queen Elizabeth II, Her heirs and Successors’. part of that oath speaks to protecting the dignity of the people? What part speaks to sovereignty of our nation builders or even acknowledges the atrocities committed to our people who consistently without fail hold the offices in high regard. It begs to question if Governments really acts in the best interest of the people or align policies regarding foreign interest. It carefully appears that white insecurity and fear of the majority of enslaved population and later freed people dictated the shape of constitutional law in the British Caribbean.

On the other hand, this does not hinder Caribbean jurisdictions from making amendments to the constitution to better aid in protecting some of our society’s most vulnerable groups. The original constitution only preached about freedoms and rights but never about sharing equality amongst all groups in the Caribbean; for example, the extremely ignored indigenous groups. Inclusion or more so equality was not acknowledged during the making of our constitution during the post-colonial era of the 1960’s and 70’s. Rex Nettleford popularised the term ‘smaddisation’ describing our post-colonial process to be recognized in our own constitutions.

The indigenous groups in the Caribbean have suffered long periods of economic, social and political marginalization. Despite some form of acknowledgement via a coat of arms of some Caribbean countries, they are still a largely ignored community. Only recently has a more meaningful constitutional space begun emerging within the Caribbean for our indigenous communities. The 2001 amendment to the Belize Constitution now provides in the preamble (where the atrocities committed to our communities go largely ignored) that the people of Belize require policies of the state ‘which protect the identity, dignity and social and cultural values of Belizeans, including Belize’s igneous peoples.’

The amended preamble to the Belize constitution has been used as an aid to interpreting the rights to property and non-discrimination in the Belize Constitution, giving ground-breaking recognition of collective property rights for Mayan-Belizeans. This shows that Caribbean governments can rectify our past leaders’ mistakes and begin doing right by the people. Similarly, it shows that we can go beyond such scope as demonstrated in Guyana. Their new amended preamble refers to value given to ‘the special place of Indigenous Peoples’ and acknowledges ‘their rights as citizens to land and security and to their promulgation of policies for their community.’ However, this presents a significant problem for the courts when challenges are brought forward by theses groups in claiming their ancestral lands, resources and demanding free goods that are seemingly granted to them under these new amendments presented in the constitution.

If the Caribbean jurisdictions can amend their constitution accommodating the forgotten ones of our society, what exactly is stopping them rerouting the system? The answer lies in the saving law clauses entrenched in every constitution across the Caribbean. The saving law clauses attempts to preserve pre-colonial laws often at the expense of human rights provisions in the constitution. More so in relations with the penalty that exist in a lot of Caribbean Jurisdictions. In Nasrallah v DPP,24 the Privy Council declared that the fundamental rights which were enshrined in the new Jamaican Constitution were ‘already secured to the people of Jamaica’.25 Consequently, in interpreting the saving law clause, the court found that rights and freedoms as declared under the new written Constitution were subject to the ‘existing law’ or saved common law. The decision therefore reveals a tension between written constitutional guarantees of fundamental rights and pre-independence rights, as expressly saved.

The Saving Law clauses protect the pre-colonial laws from being challenged, and if they are, it is brought before the Privy Council where they have the final say maintaining the British powers within our systems. However, once again this does not mean that we are in capable of changing our Constitution to represent a truer picture of our Caribbean demographic Guyana was able to slay the ‘Westmonster’ and has actually completed any fundamental reform to the extent that their constitution can no longer be described as being ‘akin to the British model’ suit their country’s needs. On the flip side, not all Countries can be successful, as with the Constitutional Referendum held in St Vincent and the Grenadines in 2009. The attempt largely failed due the hostility of the opposition party transforming what could have been a momentous occasion in the country’s history in a political rallying cry for elections. Gonsalves noted it was ‘bizarre, inconsistent and unpatriotic’ as they had pulled out of the process as such a relatively late stage. A perfect example of how some black elite of our nations are so averse to anything but the west ministerial system.

In conclusion, the constitution was created in mind to abate colonial affairs and protecting the interest Britain giving an illusion of independence. It was never designed with the intention to acknowledge the people but to keep us in check. This does not mean a day would not come where we shake the shackles of our colonial past.

BIBLIOGRAPHY

1. Collymore v Ag [1967] 12 WIR 5 (n 101)
2. Nasralla v DPP [1967] 2 AC 283 (n101)
3. Robinson Tracy, Bulkan Arif, Saunders Adrian Fundamentals of Caribbean Constitutional Law (first published 2015, Sweet & Maxwell)
4. Antoine Belle Rose-Marie Commonwealth Caribbean Law and Legal Systems (second edition 2008 Routledge-Cavendish)
5. Girvan, N, ‘Assessing Westminster in the Caribbean: then and now’ (tandfonline 15 January 2015 < https://www.tandfonline.com/doi/full/10.1080/14662043.2014.99316 2> accessed 24 October 2019
6. Bishop, L, M ‘Slaying the ‘Westmonster’ in the Caribbean? Constitutional Reform in St Vincent and the Grenadines ( onlinelibray.wiley 14 December 2010) accessed 25 October 2019

Religion and politics have continued to be an important theme in the political philosophy of England dating back in the sixteenth century, despite the emergence of consensus over the right to freedom and the need for separation of powers between the state and the church. The imminent relationship between religion and political wellbeing of the individuals foretold the sobriety of social relations depicted by people in England during the sixteenth century. Queen Elizabeth I was the first queen to intermingle her social and political welfare to incorporate and validate the title of ‘Supreme Governor’ in the sixteenth century. Supreme Governor is a tittle unto which all the British monarchs have to state an oath of allegiance to, and it was first granted to Queen Elizabeth I after she successfully passed the act of supremacy which in turn required all officials serving in the church of England to state an oath of allegiance to her. Queen Elizabeth preferred this title as opposed to the ‘supreme head’ because she wanted to be addressed and acknowledged as the supreme Governor of the Church of England in line with all spiritual matters. Interestingly, she preferred this title because as a woman she couldn’t have been properly called the ‘supreme head’. In the pursuit to be called Governor, she ordered all the prelates, bishops and archbishops of the kingdom, and even the ecclesiastics, under the direst penalties to make an abominable and solemn oath unto her. The current Queen of the United Kingdom, Queen Elizabeth II assumed the title from her predecessor.

The way in which power is distributed among any two or more rival groups or levels of governance predetermines the unity and sense of togetherness portrayed in any given setting. Tensions between parliament and the king in England was deeply rooted throughout the seventeenth century. Moreover, in the 1640s, this dispute escalated into a civil war and Charles I who lost during the war was beheaded in the year 1649. His only two sons, James and Charles II, fled to France and Oliver Cromwell who emerged victorious was handed the mantle to rule England in the 1650s. Cromwell later died in 1659 creating a power vacuum, thus prompting the parliament to invite the sons of Charles from exile, restoring the English monarchy through the coronation of Charles II in the year 1660. However, in 1688 there arose a Glorious Revolution which enabled William of Orange to secure the throne from James II. This revolution brought with it a permanent realignment of power within the English political lineage, with the new co-monarchy of Queen Marry II and King William III who accepted more constraints from the parliament than how the previous monarchs had. The new constitution reaffirmed this and constituted a future expectation that all other future monarchs would as well be constrained by parliament hence ‘parliamentary monarchy’.

Throughout the Imperial history of Britain in the eighteenth century, a constitutional monarchy was deeply rooted except at the last phase when democracy reigned. Constitutional regime insinuated that the rule of law supersedes the rule of man. This rule of law in itself provided a philanthrope basis of founding a just and an organized society capable of handling external threats. Again, the founding constitutional principle promoted social relationships between individuals since it was sane and humane. It disregarded the slave trade and slavery and even provided freedom from arbitrary judicial killings and extrajudicial punishments. This enabled trading activities to flourish thus, promoting economic development. It is in this line that the British managed to build their first Empire. The British became a superpower because the Empire always sought for wealth rather than power. The empire was entirely based on trade and not conquest.

References

1. Weinreich, S. J. (2017). How the Queen Named Herself Supreme Governor of the Church, and of the Laws Enacted about This. In Pedro de Ribadeneyra’s’ Ecclesiastical History of the Schism of the Kingdom of England’ (pp. 418-421). BRILL.
2. McClean, D. (2019, September). State and church in the United Kingdom. In State and church in the European union (pp. 657-676). Nomos Verlagsgesellschaft mbH & Co. KG.
3. Rose, J. (2017). By law established: The Church of England and the royal supremacy. In The later Stuart Church, 1660–1714. Manchester University Press.
4. Larres, K. (2015). Superpowers and international governance: A ‘might is right’story. Caucasus International, 5(2).
5. Chaboki, M. E. (2017). Investigate the Exit of the Britain from European Union and Its Impacts on the International Community. J. Pol. & L., 10, 56.
6. Flick, A. C. (2018). Revival: The Decline of the Medieval Church Vol 1 (1930). Routledge.
7. McClean, D. (2019, September). State and church in the United Kingdom. In State and church in the European union (pp. 657-676). Nomos Verlagsgesellschaft mbH & Co. KG.

State power is organised, distributed, and governed by constitutions. They set out the state structure, the major institutions of the state, and the principles regulating their relations with each other and with the people of the state. In that it has an ‘unwritten constitution, Britain is unusual: unlike the vast majority of nations, there is no single legislative text that lays out the basic rules detailing how the state operates in one place. The lack of a ‘written’ constitution in Britain can be explained by its history.

In other nations, many of which have undergone revolution or regime change, the creation of new state institutions and the comprehensive description of their ties with each other and their people have had to start from scratch or begin from first principles. By comparison, over a long period of time, the British Constitution has developed, reflecting the relative stability of the British political structure. In Britain, it was never thought appropriate to unite the fundamental building blocks of this order. Instead what Britain has is an accumulation of separate laws, conventions, legal rulings, and treaties that can be referred to collectively as the British Constitution. Therefore, it is more fitting to refer to the constitution of Britain as an ‘uncodified constitution, rather than a ‘unwritten’ one.

It has been proposed that it is possible to summarise the British Constitution in eight words: what the Queen in Parliament enacts is law. It ensures that Parliament, using the authority of the Crown, enacts legislation that no other body can question. Parliamentary supremacy is generally known as the British Constitution’s guiding concept. It is the sole law-making power to establish or abolish any law in a constitutionally elected Parliament. The rule of law, the division of government into executive, legislative and judicial branches, and the nature of a unitary state are also considered to include other fundamental values of the British Constitution, meaning that supreme authority is exercised by the middle’ – the sovereign Westminster Parliament. Some of these concepts, however, are mythical (it might be best known that the British constitution requires the merger of executive and legislature) or in question (Parliamentary sovereignty may now be called in question given the combined impact of Europe, devolution, the Courts, and human rights).

From a variety of sources, the British Constitution is extracted. Statutes are legislation enacted by Parliament and are the highest form of law in general. Conventions are unwritten traditions that have grown over time and influence the governing company. Common law is laws established by cases by the courts and judges. The accession of the UK to the European Communities Act 1972 has meant that the British Constitution is increasingly influenced by European law. The UK is subject to international law as well. Finally, since no one text can comprise the British Constitution, legislators and lawyers have relied on constitutional authority to define and interpret the constitution.

Two issues are created by an uncodified constitution. First, understanding what the state of the constitution really is makes it complicated. Second, it suggests that changes to the UK Constitution are easier to make than in countries with written constitutions, since the latter have documents with a ‘higher law’ status that can be tested against ordinary statutory law and government action, and are only amendable through elaborate procedures. The UK constitution’s flexibility is evident from the large number of constitutional reforms since 1997, including the abolition in the House of Lords of the majority of hereditary peers, the introduction of codified individual rights for the first time in the 1998 Human Rights Act, and the transfer to Scotland, Wales and Northern Ireland. However, these recent constitutional amendments may have potentially made the constitution less versatile in certain respects: it is debatable, for example, if the settlements for devolution will ever be abolished.

A2. Parliament is an important part of politics in the UK. Its key functions are to investigate and challenge the government’s work, to discuss and pass all legislation, and to allow the government to increase taxes. The structure of Parliament comprises 2 Houses. In the House of Commons, there are currently 650 elected members of Parliament, called Members of Parliament (MPs). Each seat is contested in a general election or by-election in a constituency under the present system. They share their time in London between their local constituencies and the Commons.

MPs consider and approve new laws in the Commons. While most are part of a faction, only a few are independent. They will vote most of the time according to the desires and strategy of the government, which is instructed by the party whip. If an MP refuses to comply, this may mean that their party’s publicity, sponsorship, credibility, and financial resources will be refused. MPs also sit on committees to study the policies and plans of the state.

The House of Lords is the upper house of the Parliament of the United Kingdom, otherwise known as the House of Peers. Membership is provided by election or by inheritance or official service. Like the House of Commons, it meets at the Westminister’s Palace.

Unlike the elected House of Commons, members of the House of Lords are appointed (excluding 90 elected hereditary peers and two ex officio peers). The House of Lords membership is drawn from the peerage and consists of Lords Spiritual and Lords Temporal. In the existing Church of England, 26 bishops are the Lords Spiritual. Of the Temporary Lords, the majority are life peers who on the advice of the Prime Minister or on the advice of the House of Lords Appointments Board, are appointed by the king, but they may include some hereditary peers, including four dukes.

Although the composition of the House of Commons has a fixed number of seats, the number of members of the House of Lords is not defined. The House of Lords is the only upper house to be larger than its lower house in every bicameral parliament in the world.

Bills passed by the House of Commons are scrutinised by the House of Lords. It reviews and amends Bills from the Commons annually. Although it is unable, even under such restricted cases, to prohibit Bills from passing into law, it may postpone Bills and force the Commons to rethink their decisions. The House of Lords serves in this capacity as a check on the House of Commons, which is separate from the electoral process. In either the House of Lords or the House of Commons, bills will be presented. Although members of the Lords will also take on positions as ministers of government, high-ranking officials are generally drawn from the Commons, such as cabinet ministers. Separate from the Commons, like the House of Lords Library, the House of Lords has its own support facilities.

Many duties also carried out by the Commons are carried out by the House of Lords. It can ask ministerial questions, debate in its house, and inquire in its committees, but it cannot veto the Commons’ desired legislation. It can only be delayed. If it disagrees with a bill coming from the Commons, it will delay its entry into law for one session, around 13 months, because the Lords will not avoid it if the Commons proposes the same Bill in the same terms in the next session. A cash bill dealing with taxes and spending should not even be postponed. They accept what the Commons wants, as long as it is a money bill that the Commons Speaker declares.

In recent years, the UK constitution has been a thriving topic of debate and the organs of government have frequently been accused by their critics of making ‘unconstitutional’ decisions, yet the meaning of this is subjective. To define this term, several factors should be considered; firstly, the difference between unconstitutional and illegal, secondly, if existing challenges to constitutional principles can be considered unconstitutional, and thirdly, how unconstitutionality is sometimes unavoidable.

The difficulties that come with defining ‘unconstitutional’ are mirrored by the differing descriptions of a constitution itself. Le Suer, Sunkin and Khushal Murkens offer that a constitution is “a text of fundamental importance, setting out how the country is to be governed”. This definition is arguably rather narrow in comparison to that of Wheare who described a constitution as “… the whole system of government of a country, the collection of rules which establish and regulate or govern the government”. In merit to the former, most countries do have codified constitutions set out in a singular document, but the UK is one of a minority of countries – including New Zealand and Canada – without a constitution in this form. This is not to say that the UK does not have a constitution, or that it is not written, but rather that it is comprised of many different texts and principles.

The UK constitution consists of three vital elements: statutes, case law and constitutional conventions. It should be noted that there is a difference between ordinary and constitutional statutes, as Lord Justice Laws set out in Thoburn v City of Sunderland. Accepted examples of constitutional statutes include the Magna Carta 1215, the Human Rights Act 1998 (HRA) and the Constitutional Reform Act 2005. Furthermore, judicial decisions of constitutional value are those which interpret constitutional legislation or principles such as R (Miller) v Secretary of State for Exiting the European Union. Complementing these components are several doctrines, namely Parliamentary supremacy, the rule of law and the separation of powers.

Freeman describes unconstitutional conduct as that which challenges principles such as these that are “unwritten but universally accepted”. Unlike in countries with a codified constitution, these unwritten principles in the UK are not legally enforceable and rely on the complicity of constitutional actors.

For example, in the UK constitutional conventions play a vital role in the government of the country but are not justiciable. Whilst conventions may be written in documents such as the Cabinet Manual, this means they are only politically enforceable.

Conventions include Cabinet secrecy, which was proved to be a non-legal rule during the case of Attorney General v Jonathon Cape Ltd , in which Lord Widgery explained that “the very name ‘convention’ is a negation of the right of action at law”.

The case also highlighted the difficulty of rules which rely on compliance, as when broken, their aims are not met, but legal action cannot be taken despite the foreseeable consequences. For example, Cabinet secrecy allows Ministers to express their honest views privately, so to avoid public repercussions. This requires the confidentiality of opinions expressed in Cabinet and D’Ombrain argues that this is part of an efficient constitution. If Ministers disobey this convention, frank discussions in Cabinet may by inhibited by fear of public ramifications, which stifles debate around issues which may be of societal, political, or constitutional importance.

The nature of constitutional conventions clearly exemplifies the difference between unconstitutionality and illegality, and supports the argument of Bradley, Ewing and Knight that “conduct may be unconstitutional without being illegal”. Therefore, using Freeman’s earlier definition of ‘unconstitutional’ would mean that to disobey a binding convention would be an unconstitutional event, but not an illegal one, helping to define the parameters of this term.

In light of this, it would seem that any challenge to one of these elements or principles is unconstitutional. However, challenges to these doctrines are evident in our functioning constitution, making it difficult to distinguish an acceptable challenge from an unconstitutional one.

For example, Jennings argued that “the supremacy of Parliament is the Constitution”, and emphasized Dicey’s traditional view of the importance of this principle to the government of the country. Moreover, Bradley noted that in a country without a codified constitution such as the UK, Parliament can make constitutional changes by ordinary process, whereas in codified constitutions, a specific amendment procedure is detailed.

Bradley’s point is debatable however, as in the UK, a bill of constitutional significance follows a slightly difference process to an ordinary bill. For example, these bills typically originate in the House of Commons, and are given a three-line Whip, signifying their importance to Members of Parliament for debate. They are also typically more public and face harsher scrutiny than other bills. Therefore, while Bradley is correct in saying that the procedure for amending or creating constitutional statutes is fundamentally the same, there are slight conventional differences in the reality of this process.

However, Bradley’s overriding idea of Parliament being able to make constitutional changes because of their sovereignty is important. Theoretically, Parliamentary supremacy is a doctrine that the UK aims to uphold, yet there are examples of challenges to this that we choose to live with.

For example, the HRA imposes duties on UK courts, such as that a court may “make a declaration of … incompatibility” if it feels that a provision contravenes a Convention right. The act then goes on to declare that this does not affect primary legislation, implying that Parliament’s sovereignty remains intact.

However, the actual consequences of a declaration of incompatibility effectively bind Parliament into only making laws which comply with the Convention and amending those that do not. A 2012 report by the British Academy Policy Centre explained that a declaration of incompatibility is intended to “trigger a political response”, which is arguably just as important an issue for the government as if it were legal. King found that there has been no case to date where Parliament chose not to remedy incompatible legislation illustrating Parliament’s will to legislate in accordance with the Convention, and the extent of the constraint the HRA causes.

This is not to suggest that Parliament would necessarily have any intention of passing laws that breach Convention rights, but rather illustrate the restrictions imposed on Parliament to making ‘compatible’ laws.

Supporting this, Lester argues that the HRA exerts a “magnetic force over the entire political and legal system”, and while he does not feel that this is negative, he highlights the influence the act has. He also claims that the act is a “measure of fundamental constitutional importance”, showing its significance in this setting.

Therefore, if Parliamentary sovereignty is a key to the UK constitution, and it can be compellingly argued that the HRA challenges, or at least influences this, then arguably the act itself is unconstitutional. This argument was supported by the Joint Committee on Human Rights who in their 2007-08 report argued for a ‘British Bill of Rights and Freedoms’ as it would provide better protection of rights for all and build on Parliamentary democracy, thus removing the constitutional challenges created by the HRA. Arguments for a British Bill of Rights also featured in the campaign to leave the European Union, which arguably shows support for the idea amongst the public, following the operation’s success in the 2016 referendum.

However, this argument has been repeatedly disputed and no such ‘Bill of Rights’ has amounted. Moreover, this argument seems to imply that there is a trade-off between Parliamentary supremacy and human rights and that a challenge to Parliamentary supremacy outweighs the value of human rights protection. Gordon notes the popular opinion amongst scholars that “human rights are too valuable to remain subject to the will of an elected legislature” and questions whether Parliamentary sovereignty is still even part of the constitution.

This shows why even though it technically creates a constitutional challenge, the HRA is accepted by the majority in the interests of rights protection, so while this may show a matter which is theoretically unconstitutional, this has a limited effect on the constitution in reality.

Moving forward, if this issue typically goes unchallenged for a wider societal benefit, this begs the question of how these constitutional trade-offs can be formally argued through judicial review to an inevitably ‘unconstitutional’ end, and if constitutional conduct is therefore opting for a remedy which challenges the constitution the least.

A recent example of this was the case of R (Miller) v Secretary of State for Exiting the European Union. Unlike the challenge to Parliamentary sovereignty posed by the HRA as discussed earlier, this case formally argued over the protection of a constitutional doctrine after the executive’s use of a prerogative power was contested.

Although successful for the appellant, the case divided the Supreme Court, and exemplified how issues of constitutionality can be seen from different perspectives, making the definition of ‘unconstitutional’ hard to finalise.

The Supreme Court’s decision intended to protect Parliamentary sovereignty by stopping the executive from effectively changing domestic law without Parliament’s involvement and Ewing argued that the defense of this doctrine was the most striking feature of their decision. The court’s majority felt that “a major change to the UK constitutional arrangements [cannot] be achieved by ministers alone”.

However, the dissenting judges felt that it was wrong for the courts to interject on the executive’s use of a prerogative power to withdraw from international treaties, and that this did not interfere with Parliament’s scrutiny of the executive, or its supreme law-making abilities. However, it should be remembered these were just two of the arguments made by the minority in this complex case and other factors also contributed to their decision.

Lord Reed referred in his dissenting judgement to the words of Lord Denning in Blackburn v Attorney General, who stated that “treaty-making power…rests not in the courts, but in the Crown”, and felt that Parliamentary supremacy needed no protection in this case, as it was not being challenged.

He held this view in an attempt to uphold Parliament’s sovereignty – just as the majority intended – but felt that this would be achieved in a different way. He interpreted the European Communities Act 1972 in a way that did not impose a requirement for the executive to seek permission from Parliament to exercise their prerogative power.

Furthermore, Lord Carnwath dissented that the use of prerogative powers lies with the executive, and that adequate means of Parliamentary scrutiny were available in this matter. He held that “the courts may not inquire into the methods by which Parliament exercises control over the Executive, nor their adequacy”, and therefore there was no reason for the executive not to use the prerogative as Parliament would have a sufficient say in the matter after its initiation.

The clearly differing opinions of the majority and the dissenting judges in this case highlights how a matter can be seen as unconstitutional no matter the outcome, and how it can be argued multiple ways to achieve the best conclusion. The opinions of each judge – whether in the majority or minority – could have been seen as unconstitutional in some way, as could the fact that they even passed a judgement on the matter at all.

Therefore, this case illustrates how constitutional matters that come to judicial review are sometimes resolved by deciding how best to balance constitutional principles which are in conflict, and therefore a matter may be ‘unconstitutional’ for maintaining one doctrine despite challenging another.

In conclusion, in light of these factors it is clear that the definition of ‘unconstitutional’ is subjective. This reflects the complexity of comparing the theory of constitutional principles to reality, as well as differentiating unconstitutional matters from illegal ones. Moreover, while Freeman’s definition of ‘unconstitutional’ still holds merit, this should be held in consideration of the weighted value of the UK’s constitutional principles and their conflicting, non-binary nature when applied to real constitutional matters or events.

Bibliography

Primary Sources

Legislation:

• European Communities Act 1972
• Human Rights Act 1998

Cases:

• Attorney General v Jonathon Cape Ltd [1976] 1 QB 752
• Blackburn v Attorney General [1971] 1 W.L.R. 1037
• R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5
• Thoburn v City of Sunderland [2002] EWHC Admin 195

Secondary Sources

Books:

• A. V. Dicey, An Introduction to the Study of the Law of the Constitution (first published 1982)
• Andrew Le Suer, Maurice Sunkin, Jo Eric Kushal Murkens, Public Law (fourth edition, Oxford University Press, 2019)
• Anthony Bradley, Keith Ewing, Christopher Knight, Constitutional and Administrative Law (17th edition, 2018)
• Anthony Bradley, The Changing Constitution (6th edition, Oxford University Press, 2007)
• Anthony Lester, The Changing Constitution (6th edition, Oxford University Press, 2007)
• Edward Augustus Freeman, The Growth of the English Constitution (first published 1872, London Macmillan)
• Ivor Jennings, The Law and the Constitution (5th edition, University of London Press, 1959)
• KC Wheare, Modern Constitutions, (first published 1951, Oxford University Press)
• Michael Gordon, Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (Hart Publishing, 2015)

Online Reports:

• Colm O’Cinneide, British Academy Policy Centre, Human Rights and the UK Constitution, 2012

Online Journals:

• ‘The Cabinet Manual’, 2011

Constitutional law is concerned with the overall constitutional structure which a country is governed. The narrow meaning of a constitution relates to documents with legal sanctity setting out the framework and principal functions of the Government. In consideration of this definition, the UK does not have a constitution. The broad meaning of a constitution is the whole system of government of a country, the collection of rules which establish and regulate the government. In this sense, the UK does have a constitution. The most significant constitutional principles concern Parliamentary supremacy, the rule of law and the separation of powers. Parliamentary supremacy allows UK Parliament to make and unmake any law and the courts cannot strike down any legislation enacted by Parliament as unconstitutional. The rule of law ensures that the government and all other bodies are bound by the law. The separation of powers refers to the powers of the state being allocated by the legislature. The purpose of this is to avoid the overconcentration of power and ensure checks and balances in the constitution, as per Miller v Cherry [2019]. The labour governments of 1997-2010 implemented a set of constitutional reforms, such as the introduction of new voting arrangements and the creation of the UK supreme court. Unusually, the UK constitutional law can be amended provided that the government can persuade Parliament to enact the necessary legislation. The UK Constitution is differing from others, the UK does not have such a text, and the UK Parliament is unrestrained in its law-making capacity Blick (2016). One example of this is that the Monarchy is not democratically elected, instead, the monarch inherits their position. In comparison to the USA whose President is personally elected by the people.

One distinct feature of the UK Constitution is its unwritten and uncodified nature. The UK constitution is described as uncodified due to the fact that there is no single document entitled ‘The UK Constitution’. Instead, there has been the implementation of various constitutional laws, practices and common law found scattered amongst pieces of legislation, court decisions, constitutional conventions, codes of conduct and practices. The UK has not experienced any ‘cataclysmic events’ (such as a revolution) so hasn’t had the need for reform or the progression towards a codified constitution. ‘So far there hasn’t been a ‘constitutional moment’ at which the fundamental rules required clarification’ (Elliot and Thomas 2020). The lack of a codification can also be explained by reference to a lack of public appetite; the British public have addressed that the distinctive nature of their unwritten constitution has provided them with superior protection of their rights and liberties. Feldman (2005) argues that there are 4 rules for constitution: to establish the institution’s functions, have control to stop institutions acting improperly, confer respectability and legitimacy on the state system and be elastic and allow for change. He argues that codification is unnecessary, as long as these rules are implemented. The UK’s uncodified constitution is not a product of a deliberate design but ‘develops piecemeal over time’ (Elliot and Thomas 2020). This is evidenced by the major constitutional reforms undertaken since 1997 which have formed a rolling, sometimes disjointed, programme rather than a coherent package.

There has been extensive debate about whether there is a need for the codification of the UK Constitution. Bogdanor (2007) emphasises that a codified constitution would provide for a more accessible set of constitutional arrangements, making it easier for people to understand them. Codification also represents an unprecedented opportunity for major reform that might address ongoing concerns such as: the scale of executive power, the adequacy of arrangements for holding the executive to account, the unelected nature of the House of Lords, etc. Blick (2016) proposes that a codified UK Constitution would provide greater protection for core principles, such as human rights, and that drafting the constitutional text could provide the opportunity for bringing about certain reforms in the process, such as changes to the electoral system. The codification of the UK Constitution would also provide an opportunity for greater formalisation. Putting political aspects of the constitution into legal reform would address concerns about the willingness of politicians to exploit the uncertainty and the limited enforceability of elements of the political constitution, e.g. Boris Johnson’s willingness to advise the Queen to suspend Parliament in September 2019 ran counter to constitutional convention. Arguably, legally enforceable arrangements included within a written constitution would have prevented this.

However, Blick (2016) also suggests that a written constitution would mean losing valuable flexibility in our system, shifting excessive power to the courts and the task of producing such a document would be ‘demanding and divisive’. ‘It would be naïve to assume that a codified constitution would be some universal cure for all constitutional problems’ (Barber 2008), and therefore codification could be viewed as an inefficient use of resources. Adopting a codified constitution would require hard questions to be confronted, such as how detailed would the constitution be? And would conventions be made legally enforceable? The fact that such questions would have to be confronted suggests that producing a codified constitution would require the adoption of a complex process that would be lengthy and potentially costly, ‘the enterprise would be daunting and scale and complexity, and there could be no guarantee that it would succeed’ (HM Government 2007).

One prominent feature of the UK Constitution is our constitutional monarchy. The Queen is head of state and has the power to pass laws. In constitutional terms, the Queen does possess executive powers to appoint Ministers, dissolve Parliament and grant royal assent to legislation. However, in practice, such powers are not exercised by the monarch personally, but by elected politicians; the queen is merely a figurehead. In one sense, the Crown is merely ‘an object of jewelled headgear under guard at the Tower of London’ (Elliot and Thomas 2020). In another sense, the Crown is an important symbol of continuity and change in the British constitution. Undeniably, one key principle of the UK Constitution is its monarchical nature, however, the extent to which this feature is still relevant today is debatable. As a symbol of royal authority, the Crown was used in pre-modern, medieval times to refer to the monarch when doing acts of government as opposed to acts undertaken by the monarch in his or her personal capacity. To preserve continuity with the past, the concept of the Crown has been retained, although, in practice governmental power is now exercised by both elected politicians and their administrators in the name of the Crown rather than by the monarch personally. Despite this, as Garcia and Hall (2017) allude, ‘the role of the Monarch in relation to the church still has tangible social influence’.

The religious nature of the UK Constitution is also a principal feature. When a monarch is sworn in, they swear their allegiance with the church of England and the church of Scotland. When the queen is in England, she is Anglican, and when she is in Scotland, she is Presbyterian. There are also 26 bishops of the church who are automatically granted seats within the House of Lords. In 2015, David Cameron described how ‘this is a Christian country’, placing emphasises on the religious nature of the constitution and how, despite it having ‘deep historical roots’ (McHarg 2020), religion is still a prominent principal feature. Arguably, the concept of separation of powers is enhanced by the religious character of the Constitution. It allows for a spiritual perspective to be fed into the collective dialogue on the exercise of power and the management of the same by the legislature. It also ensures that faith-based issues relating to separation of powers are effectively managed. Garcia and Hall (2017), state that ‘the religious legal framework with which we are working in twenty-first century Britain is not merely functional, but positive for society and in harmony with the fundamental pillars of our modern Constitution’. However, there remain those who argue that the present legal and constitutional framework does not enjoy a healthy relationship with religion. There are commentators at the other end of the spectrum who argue that a legal framework which incorporates a state Church is not simply a suboptimal arrangement, but in breach of international law.

McHarg (2020) describes how one of the most defining features of the UK’s Constitution is its flexibility. Broadly speaking, the uncodified and unwritten nature of the constitution allows for flexibility, but there are political and economical restrictions to this flexibility. As well as this, the UK Constitution is unitary rather than federal, despite some powers being devolved to Scotland, Wales and Northern Ireland.

To summarise, the unconventional UK Constitution is: partially unwritten, uncodified, religious and monarchical in nature, flexible and unitary. The constitution can best be seen as the machinery through which we give authority to, choose between, and accommodate conflicts between visions, rather than a set of settled rules (Jones 2016). There is no current demand for constitutional change and its uncodified, religious and monarchical nature appears to function efficiently.