Where power lies
And how we can prevent constitutional decline
You don’t often read an analysis of where power lies here in the United Kingdom. Except in times of crisis, newspapers seldom pay any attention to rebalancing the British constitution. But this morning, like buses, two or three constitutional essays have arrived together. I shall summarise them in order of length, ending with the shortest.
Unchecked Power? is the title of a highly readable new book by Alison Young, the Sir David Williams professor of public law at the University of Cambridge and, from next March, the law commissioner responsible for public law. Her book was launched last night at 39 Essex Chambers, where she is an academic associate.
Young writes about her concern that the UK is at risk of democratic and constitutional decline through the continual gradual attrition of the checks and balances that were designed to uphold principles of good constitutional government.
It can leave the UK constitution constantly standing on a cliff edge which is gradually being eroded. While there may be means of stopping the constitution from falling of the cliff edge, there may not be the means to stop erosion of the ground on which the constitution stands. Yet this gradual erosion may have the same consequences as a major constitutional crisis.
Her book takes us through the constitutional changes of the past four years, culminating in Boris Johnson’s claim that the Commons privileges committee was a “kangaroo court” and his pre-emptive resignation from parliament. Was that really less than six months ago?
After reminding us of the constitutional outrages we’ve lived through — not least the legislation intended to break international law — Young considers what needs to be done:
Whenever there are discussions as to possible changes to the UK constitution, the obvious reform is for the UK to move away from parliamentary sovereignty and a political constitution and adopt a codified constitution, where courts can strike down actions of the legislature and the executive that breach constitutional principles.
Unsurprisingly, I’m often asked if this is the solution to all sorts of constitutional ills. My response is: not necessarily.
Codification may help to provide clarity. A constitution that can protect constitutional principles from erosion by legislation as well as acts of the government may make it harder for a populist leader to modify long-standing constitutional principles. The courts may also have more powers to prevent the erosion of democracy and constitutional principles from a series of small, incremental changes, and not just to prevent larger erosions caused by a constitutional crisis.
However, she adds, “a codified constitution may not prevent populism. Nor is it necessarily the solution to the UK’s situation.” Young prefers strengthening parliamentary controls over the executive, with the courts acting as a constitutional backstop.
Writing a constitution
While Young was discussing her book, Lord Anderson of Ipswich KBE KC was exploring these issues in a typically elegant speech to the Statute Law Society. Delivering the Lord Renton lecture in a different part of legal London, David Anderson began by exploring what was wrong with our constitutional arrangements. He then considered the benefits of writing a constitution and discussed which of the many ways of doing it — some more radical than others — we should consider.
In summary, he said:
Our constitution is sick (though the illness is chronic rather than acute); a written constitution is a realistic proposition, for which there are many precedents within the Westminster family; the public seems at least mildly favourable to the idea; and there are a number of sound reasons for it, even though some of them are frequently over-stated.
What form could a written constitution take and how might it be achieved? Anderson offered three options:
“They are not mutually exclusive,” he said. “You could think of them as the three courses on a menu, from which you can choose at will… I am strongly tempted by the starter and the main course — but the pudding might be a bit much.”
Restatement would involve creating an authoritative written account of our existing constitutional arrangements, neither changing their substance nor constituting a new source of authority to challenge those that already exist.
“The aim,” he said, “would not be to entrench, amend or even codify our existing constitutional laws, rules and conventions, but simply to describe them.” That would be a flexible way of providing two of the benefits of a written constitution: public understanding and clarity for those who played a part in constitutional affairs.
Renewal would be a programme of constitutional change responding to problems that have become evident in recent years. “The central principle of parliamentary sovereignty, that parliament may make and unmake any law, would not be up for question. But this would not preclude the use of soft retrenchment techniques, which could be modelled on British and New Zealand precedents, so as to give at least political emphasis to certain fundamentals.”
Standards in public life would be Anderson’s first priority — on the principle that it is sensible to mend the holes in a bucket before you pour water into it. That would be followed by changes to parliamentary procedures and improvements in scrutiny.
Revolution could mean the transformation of our constitutional arrangements from a single fundamental principle — the supremacy of parliament — to a fundamental law that was prior to, independent of and the source of authority for our system of government.
However, he thought there was little public support for anything so radical. “The constitution needs to be clearly written: but it is by restating and renewing our constitutional settlement, not revolutionising or judicialising it, that we can best equip it for the trials that lie ahead.”
Anderson has very kindly allowed me to publish the full text of his lecture here. It’s a good read.
Can juries spurn the law?
The third essay is the shortest of all. It deals with only one constitutional issue: can a jury acquit in defiance of the law?
That would surely be a breach of the oath taken by jurors, which is to “faithfully try the defendant and deliver a true verdict according to the evidence”. In the new edition of Archbold Review, available online but behind a paywall, Professor John Spencer argues that jurors should instead swear to “deliver a true verdict in accordance with the law and justice”.
I disagree, as I explain in my latest column for the Law Society Gazette.
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