It seems that we already need recourse to some political, moral or ethical (or extra-legal - in any case non-legal) justifying principle here such as the value of ‘legality’ or the democratic idea of the constitution as the outcome of a ‘founding act of the people (or ‘democratic will’) in setting up the Constitution’ such as when after the French and American Revolutions constitutions were enacted as the first free act of the newly free people (the ‘creation’ of legitimate political power through this founding act of ‘democratic will’ which, as it were, itself stands ‘above’ the merely legal constitution as the ‘political’ - or moral or ethical - reason for its legitimacy).
The reason for the ‘non-legal’ nature of any response to this appeal for justification is, of course, that the constitution itself is the end point of purely legal authority and possible justification. If the justification of the constitution is itself thrown into question then there is no ‘higher’ purely legal source to which we can appeal.
The legitimacy providing power of the constitution indeed seems truly ‘magical’ in the sense defined by the Sociologist Mauss - it seems to perform the alchemy of turning base political power into legitimate legal gold - a true act of juridico-political trans-substantiation.
This, as I have said, is really a general, even logical difficulty in the ‘idea’ of a constitution as such. However, there are problems which are largely unique to the British or UK constitution.
Firstly, the UK (along with only Israel and New Zealand in all the recognised legal systems of the world) has, strictly speaking, no ‘written’ constitution. I have put the word ‘written’ in quotation marks for the following reason : of course, law relating to what are usually recognised as ‘constitutional issues’ are, in many cases, written down and enacted in statute form (two major examples would be the European Communities Act 1972 and the Human Rights Act 1998) but ......
Second, the principle of ‘parliamentary sovereignty’ (defined by AV Dicey as the principle “that Parliament can make or unmake any law whatever” [Allen and Thompson p.54]) means that all law is on an equal footing in the UK - there is neither a single founding document to which we can have recourse, nor is there any special form of protection given to laws relating to issues we may wish to identify as ‘constitutional’ (thus, the 1972 and 1998 acts are ‘ordinary’ pieces of legislation and are subject to amendment or repeal in the same way, and by the same process, as any other piece of legislation such as The Road Traffic Act 1991 or the Weights and Measures Act 1985).
This has lead one commentator, at least, to argue that the UK does not, in fact, ‘have’ a ‘constitution’ in any meaningful sense. F.F. Ridley (all refs to this writer can be accessed in Allen and Thompson pp.3-4) in an article entitled “There is no British Constitution : A Dangerous Case of the Emporor’s Clothes” argues that the important point is not so much the absence of a ‘documentary constitution’ but the absence in Britain of a set of particular laws which possess the status of a ‘constitution’ which is signified “as a special category of law”.
Ridley argues, it seems, that the distinction between Britain and other countries regarding the “single document called ‘the constitution’” has less importance than the fact that “the British usage dissolves the distinction between constitutional law and other laws because British courts recognise no such distinction”. In other words while we have ‘laws’ (and conventions - which are tacit understandings which as one wit has put it are not really very clearly understood) relating to “constitutional matters”, we have no ‘constitution’, for the reason that there is no special category of this kind of law or recognition afforded to these laws and conventions by the courts (who are of course the arbiters of any dispute concerning the status of a ‘law’).
Definitions of the UK constitution offered by witnesses to the House of Lords Select Committee include (all refs to issues raised by this committee are in Allen and Thompson pp.7-8) :
- Lord Alexander of Weedon : “it is of the essence of our constitution that it is constitutional issues as they evolve. That seems largely to defy any attempt at a rigid definition”.
- Lord Strathclyde : “anything that affects the way we are governed, the balance between different powers of Parliament and its associated repositories of powers. It is about the authorities under which we are governed”.
- Lord Rogers of Quarry Bank : “the political and administrative structure whether based on statute or convention, by which we are governed”.
- Tony Wright MP (Chairman of the Commons PAC) : “the constitution is .... whatever it is at any one time and we make it up as we go along ... it is something to do with the relationship between citizens and the state and between the different parts of the state”.
I would argue that the UK can be said less to have a ‘constitution’ in the normal sense of the term than to have laws and conventions related to what we may call “constitutional issues”. Are we so confident, however, that we can recognise a “constitutional issue” when we see one (without defining this as the subject matter of what is usually in a “written constitution” which seems to call for a written constitution or at least recognise our system as just this peculiar kind of ‘lack’)?
Let us make a pragmatic decision to define, or work on the rest of the module with this definition, of ‘constitutional law’ simply as the law and recognised conventions relating to the following areas :
- Government
- The Royal Prerogative
- Parliament
- the judiciary and judicial review
- the constitutional position of the civil service
- citizenship
- personal freedoms, liberties and free speech
- the EU
- devolution
- elections, electoral reform and referendums.
The rest of this module will be made up of an overview of these areas.
The House of Lords Select Committee (what is a select committee and what are its powers? that too, of course is a constitutional question) indentify five “basic tenets of the United Kingdom Constitution” (although we should be careful here to recognise that we are staying within the realms of the merely pragmatic here since as Allen and Thompson suggest - posed in the form of a question but posed here as an answer to that question as a ‘problem’ and a rejection of a conceptual definition of ‘the UK constitution’ - the list of ‘tenets of the constitution’ does not amount to a definition of the Constitution :
- Sovereignty of the Crown in Parliament
- The rule of Law encompassing the rights of the individual
- Union State
- Representative Government
- Membership of the Commonwealth, the European Union, and other international organisations.
The two lists provide a syllabus for this course but no definition of ‘the’ UK constitution. Perhaps working backwards to the principle of the importance of these issues (why these tenets and subject areas rather than others) we can say that the United Kingdom constitution is made up of that law and convention which allocates the proper exercise of Legal powers between different organs of ‘the state’ (though I could spend a whole semester answering the question “what is the State?” and am not sure that I could do so without appealing to “the Constitution” at some point and thereby begging the question) and between the state and civil society (often within our particular system of government meaning the ‘state’ and the ‘individual’ but ‘civil society’ would raise the question of the relationship between the state and, for example, Trade’s Unions without reducing these to artificial persons).
The constitution relates to the powers to make administer and adjudicate upon the law and the rights of the individual in relation to these acts of creation, administration and adjudication.
Other distinctions between different ‘types’ of constitution
Flexible/non flexible - this relates to how easily the constitution can be changed. As we have seen in the UK no real distinction is made between constitutional and other law and therefore constitutional law is subject to the same ‘rules of change’ (a simple parliamentary majority) as all other laws - this makes the UK a very flexible system but as we have seen the lack of a distinction between consty law and other law may throw the very existence of the UK constituion into question - ie. the constitution is flexible to the point of non-existence.
Unitary/Federal - despite devolution of some legislative powers to Scottish and Welsh Parliaments (and accession of some powers to the European Union) the UK remains a unitary constitution. The principle of Parliamentary Sovereignty means that Parliament can repeal the legislation which set up these parliaments and, therefore, remains the ultimate ‘source’ of legitimate law-making power within the UK constitution. Compare with German Lander - in this case the constitution apportions power to the regions which it is not within the competeance of the central Parliament to withdraw - in these cases we have a real separation of law-making power which does not exist in the UK.