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Amy Scollan discusses the challenges of a written constitution

  • June 15, 2017
  • By Hunters Law

The Challenges of a Written Constitution

According to the Kübler-Ross Grief Cycle, there are five stages of grief: denial, anger, depression, bargaining and acceptance.  It was clear that the Committee of the European Circuit of the Bar were in the bargaining stage when they agreed to hold a seminar about whether the UK is experiencing a constitutional moment, and if now is the right time for us to have a written constitution.

Our Committee were grieving the result of the referendum and hoped that, if we gathered the best constitutional minds in Europe, a solution would be found, saving our place in the EU. Accordingly, on 4 May 2017, the Right Hon Lord Mance chaired a seminar in the hope of finding a solution, sponsored by Hunters.

The panel was made up of Sir Jeffrey Jowell QC (Hon) of Blackstone Chambers, Professor Stefan Vogenauer of Max Planck Institute for European Legal History, Eoin Carolan, Associate Professor at University College Dublin and a practising barrister at the Irish Bar, and Alison Young, Professor of Public Law at University of Oxford.

Sir Jeffrey Jowell explained that, except for New Zealand, the UK is alone in the world in not having a written constitution or a code of fundamental law which prevails over all other sources of law. The obvious answer as to why, is that we have survived well enough without one. We are perceived by ourselves and (at least until recently) by the rest of the world as a sophisticated country, governed well by the rule of law.

The reality is that our constitutional law has evolved over time through statute, statements, academic writings and judicial decisions. These often reflect particular events and reactions to changes in societal norms. Thus, revolution has been avoided.

Regarding a written constitution, Professor Vogenauer explained that when a question of constitutional significance arises, you can turn to the constitution and find the limits and extent of the power of the organ in question. Thus, the law is clear and easier to interpret.

Theoretically therefore, if we had a written constitution we would have known from the constitution itself whether the executive (government ministers) have the power or not to exercise prerogative powers and withdraw from international treaties. Thus, we would have known whether Theresa May had the right to trigger Article 50 without a raft of litigation concluding in the Supreme Court, costing millions of pounds, determining that she could only do so if authorised by an Act of Parliament.

The problem with constitutional law which is developed over time, and effectively on a needs basis, is that the law is only clear if statute has made provision for the situation at hand, or if there has been an identical problem on the same facts previously addressed in a judicial decision. The question of the constitutional basis for the withdrawal from an international treaty had never been before the court, before the case of ‘Miller’ R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union. Well, this is a lawyer’s problem. The far greater problem is that citizens do not know what their rights are or how to enforce them, and are denied the opportunity to understand the legal environment and legal values of the country in which they live. Even less clear is the distribution and allocation of power between the legislature, executive and judiciary.

It is impossible to overstate the value that written constitutions have in safeguarding legal rights for citizens. During the seminar, Professor Stefan Vogenauer explained that written constitutions usually follow times of great crisis, giving the example of the new German constitution following WWII.  The new written constitution enshrined the citizens’ rights, which had been trampled on by the Nazis. Professor Vogenauer explained the pride German citizens now take in their constitution, and found it difficult to understand how a country can properly function without one. He commented that a country without a written constitution is as odd to our continental cousins as we find the lack of precedent in the German legal system.

We have a good package of rights at present, many thanks to the EU. However, will these rights survive Brexit? We have no written constitution to turn to for comfort. At a time when the country is politically divided to the extent it is, the direction of the laws of our country is a concern for many.

Sir Jeffrey described a written constitution as “a tie imposed by Peter when sober, on Peter when drunk.”  Is the UK sober or drunk at this moment in time?  If we are drunk, then it follows we need to sober up before positioning any ties, and now is not the time to embark on the creation of a written constitution. Or, as a fellow Committee member said, should we impose the tie now before Peter finishes the bottle?

There was tension and enthusiasm on the question of whether now is the right time for the UK to have a written constitution, vis-à-vis Brexit. The question centred on a discussion of the Miller case.

The Supreme Court ruled in Miller that the Royal prerogative to make and unmake treaties operates wholly on the international plane and cannot be exercised in relation to EU Treaties, not without parliamentary authority, as EU Treaties are a source of domestic law. Thus, Parliament needs to approve the government making the Article 50 notification.

It does not seem right that such an intellectual and financial rigmarole had to be undertaken to achieve this answer. Surely this would have been avoided if we had a written constitution?
Professor Alison Young referenced the case of Democratic Alliance v Minister for the Interior, where the High Court of Pretoria discussed whether South African ministers could withdraw from international treaties. Section 231 of South Africa’s written constitution gives ministers the power to conclude International Treaties. The Court held that this power did not extend to withdraw from International treaties, as concluding and withdrawing have different legal consequences.  This ruling demonstrates that written constitutions will never provide the answer to every question of constitutional law.

Had the UK had a written constitution at the time of the referendum and since, this would probably not have helped the remain camp. The reality is that if we wanted to curtail Parliament’s power to leave the EU only in the event that Parliament approved the terms of any exit deal, we could have done so in 2008 (and subsequently) when we incorporated the Treaty of Lisbon into our enabling Act of Parliament.  It is in the Treaty of Lisbon that Article 50 sits.  We did not do this.

Amy Scollan

Associate, Hunters Solicitors

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