Flexing the constitution

But will Buckland's reforms make it too rigid to survive intact?

A key chapter in the UK’s unmodified constitution is now up for grabs. The lord chancellor, Robert Buckland, has confirmed that he is reviewing the Constitutional Reform Act 2005.

As I report in my column for today’s Law Society Gazette, one aspect Buckland is considering is “the status of the lord chancellor and whether there should be a qualification for that role”. Does he want to restore the post to the “linchpin” he believes it once was, connecting the legislature, executive and the judiciary? I discuss what that might mean.

In a speech last Thursday, Buckland regretted — not for the first time — that the Constitutional Reform Act had required him to resign as a part-time judge on his appointment as lord chancellor.

The 2005 act was, I believe, attempting to answer questions about an imagined idea of a clear separation of powers. I believe clearly that this reading of our system is an ill-informed one. What we actually have is a system based on checks and balances.

Buckland also said we needed to be much clearer about what was meant by “the rule of law”:

The rule of law itself is not a legal concept: it is a concept of political morality about the way in which we are and should be governed. Although it is a political principle, it is one which is above and must always be above party politics.

We all shared a commitment to the rule of law, he said. But that had given rise to the possibility of abuse in political debates, with people arguing that the views of their political opponents were illegitimate and incompatible with basic legal principles.

Now, doesn’t this amount to moving the goalposts such that, no matter the will of the people and no matter the will of parliament, a political result that is deemed undesirable by one side or the other can be deemed illegitimate in the name of the rule of law, no matter how loosely connected to that concept it really is?

It was a high-level speech to a conference of constitutional specialists and it deserves a careful reading. Listening to it, I wondered whether Buckland was proposing to define the rule of law in statute. Section 1 of the 2005 act famously acknowledges the principle without saying what it means:

This Act does not adversely affect—

(a) the existing constitutional principle of the rule of law, or

(b) the Lord Chancellor's existing constitutional role in relation to that principle.

Buckland certainly wants to limit the power in section 3 of the Human Rights Act 1998 to “read down” (or reinterpret) legislation that courts find to be incompatible with the human rights convention:

I would like us to end up in a position where the courts only read down legislation in cases where there is a clear and unarguable breach of the core components of the rule of law. Now, this should not be a controversial position for a lord chancellor to take, but we have seen through the responses to the judicial review consultation that there are questions around it — no doubt from some who are inclined to use the noble principle of the rule of law as a means to further their political agendas.

If we are to protect the rule of law from becoming a political football then we must ensure that its focus continues to be laser sharp, rather than allowing it to become amplified as a weapon to fight battles of politics…

What I am really saying is that I want to restore what was at one time the very conventional thinking that parliament makes laws that give power to the executive and are checked by the judiciary.

In the discussion that immediately followed Buckland’s speech to the UCL Constitution Unit, we agreed that the British constitution was in a state of flux. What nobody can tell is whether the reforms now under consideration will leave it cracked and shattered.