Britain’s Emerging Constitution?

Lord Mance1

(2008) Oxford U Comparative L Forum 3 at ouclf.law.ox.ac.uk | How to cite this article this article

Table of contents

Introduction

1. Britain’s Emerging Constitution? The question would have surprised Mr Podsnap, a character in Dickens’ novel, Our Mutual Friend. In an oft-quoted passage, Mr Poldsnap said: “We Englishmen are Very Proud of our Constitution, Sir. It Was Bestowed Upon Us By Providence. No Other Country is so Favoured as This Country”. Mr Podsnap praised insularity. To this he attributed our fortunate constitution and the fact that the English “do not do as others do”. But in speaking only of England, Mr Podsnap, like other Victorians, seems to have been unconscious that since 1707 England had since united with Scotland and since 1801 further united in the United Kingdom of Great Britain and Northern Ireland.
2. Mr Podsnap was using Constitution in the sense of a set of informal rules and understandings governing the organisation and operation of a country. More commonly, and in recent European debate, Constitution refers to a single, formal, comprehensive document with a specially entrenched status – meaning that it cannot be changed by ordinary law. In that sense, the United Kingdom has no Constitution. But we can be said to be moving towards one, and to have acquired some documents with constitutional significance. My purpose is to paint the current picture and some issues to which it gives rise. I shall do this in stages:

  • i) The historical position,
  • ii) Changes during the second half of the last century:
    • a. Administrative law,
    • b. Rule of law thinking,
    • c. Questions about Parliamentary sovereignty,
  • iii) European Community law,
  • iv) More recent changes:
    • a. House of Lords,
    • b. Devolution,
    • c. Human Rights Act 1998,
    • d. Constitutional Renewal Bill 2008,
  • v) Does the lack of a written Constitution matter?

The historical position

3. As I have said, the United Kingdom has no written Constitution. The historically minded can of course point to ancient documents with constitutional significance: Magna Carta 12152 and the development of habeas corpus, the Petition of Right 16283, the Bill of Rights 16894 and the Act of Settlement 17015. Until recently, litigants in person were still much given to citing Magna Carta. Since 1998, their attention has turned more to the Human Rights Act. But all the previous documents mentioned had two features: they were enactments at the level of ordinary legislation, and could be repealed or altered accordingly. Secondly, they were primarily measures to reinforce Parliamentary as against royal sovereignty. They reflect the 17th century settlement which still prevails in British constitutional theory. Parliament (technically the Monarch in Parliament) is sovereign and can pass any law it likes. At the start of the 17th century, there were judicial suggestions that Parliamentary legislation might be subject to judicial control. In Dr Bonham’s Case in 1610, Chief Justice Coke argued that “when an Act of Parliament is against Common right and reason, or repugnant …, the Common Law will controll it, and adjudge such Act to be void”6. But the victory of Parliament and the law over the Crown in and after the Civil War led to acceptance of the absolute supremacy of Parliament. By the 19th century, constitutional writers such as Bagehot and Dicey could almost entirely ignore the judiciary as an element of our unwritten Constitution. The sole constitutional theory became that whatever Parliament enacted was law, and that Parliament could change the law whenever and however it liked. Any later statute inconsistent with an earlier statute would to that extent impliedly repeal the earlier statute.
4. No revolution or social change led to any need to reconsider this principle in the United Kingdom itself. However, as former colonies and overseas territories gained independence, the United Kingdom did negotiate for and with them written Constitutions. They are in what is called the Westminster style – ironically since Westminster is the one place where there is no written Constitution. But the aim was to reproduce in writing the underlying principles according to which the United Kingdom’s unwritten Constitution operated. Westminster style constitutions are thus based on the separation of legislative, executive and judicial arms of state, and they contain provisions defining the powers of each and securing the position of each as against the others. In the case of older dominions such as Australia and Canada, they also regulate the relationship of federal and state powers. The Westminster style constitutions negotiated in and after the 1960s include important chapters dealing with fundamental rights and freedoms. These are largely modelled on the European Convention on Human Rights. The United Kingdom played a leading role in drafting that Convention in the early 1950s. (Not for nothing is there a Quai Ernest Bevin in Strasbourg.)
5. A considerable number of the smaller and more recently independent states (including some republics) as well as the United Kingdom’s remaining overseas territories still retain the Privy Council under their Constitutions as their final court of appeal. The Law Lords (that is the 12 members of the Appellate Committee of the House of Lords, the United Kingdom’s highest court where I sit) spend up to 40% of their time sitting on such appeals. We sit in the Privy Council’s lovely old court in Downing Street, or nowadays sometimes overseas in the Bahamas and Mauritius. Over the last forty years, the Privy Council has developed an extensive and penetrating case-law on the operation and effects of Westminster style constitutions7. So it cannot be said that United Kingdom judges have no experience of written constitutions or entrenched rights. In fact the Privy Council only remains as final court of appeal in some states because it is constitutionally entrenched: in Independent Jamaica Council for Human Rights (1998) Ltd. v Marshall-Burnett and the Attorney General for Jamaica [2005] UKPC 3, [2005] 2 AC 356 the Privy Council held unconstitutional three ordinary Jamaican statutes, not passed by the procedure mandated for amendment of entrenched provisions of the Constitution of Jamaica, which had purported to replace appeal to the Privy Council with an appeal to a new Caribbean Court of Justice8.

Changes in the second half of the 20th century

6. The first big changes within the United Kingdom came with the emergence over the last four decades, through judicial initiative and procedural reform, of a more coherent and workable system of administrative law. This did not affect Parliamentary sovereignty. Judicial review controls legality: public powers must be exercised within the limits that Parliament must be taken to have contemplated when granting them; any failure to do this makes the exercise of the power a nullity. Judicial review goes back to the 17th century, when the King’s Bench made writs of mandamus, certiorari, and prohibition, as well as remedies of damages, available to curb administrative action. But by Mr Podsnap’s time, there was still no coherent system, and some of the wisdom had been lost9. The first half of the 20th century saw some feeble jurisprudence10.
7. However, the second half of the last century saw a complete and speedy turn-around11. By 1981 Lord Diplock could say “that progress towards a comprehensive system of administrative law …. [has been] the greatest achievement of the English courts in my judicial lifetime”12. This development, and replacement of the old prerogative writs by a modernised procedure for judicial review, met an increasing demand. It affected the culture of decision-making. So much so that during the 1990s a civil service publication was produced entitled “The Judge over your shoulder”! Its rationale was faithful to the judicial role of giving effect to Parliament’s intention that powers should be exercised within appropriate limits. But such limits were taken by the courts to be exceeded if the decision-maker applied a mistaken interpretation of the law, took into account irrelevant considerations, failed to take into account relevant considerations or arrived at a decision which was wholly unreasonable13.

The rule of law

8. Judicial review of administrative action is central to the rule of law. It avoids arbitrary, unequal and unfair decisions. It helps to make the law clear and predictable and to make public officers accountable for their conduct. Judicial review is on its face concerned with procedural regularity: has a power been exercised within its limits? But the rule of law is a wider concept. It is still possible to conceive of a state ruled by a despot, in which unfair laws are administered with perfect efficiency, consistency and regularity. It would not be possible nowadays to describe such a state as subject to the rule of law. We expect more in today’s world of the law. Hence of course the Declaration of Human Rights, the European Convention and the widespread development of written constitutions with charters of fundamental rights. During the last decade of the 20th century, United Kingdom courts began increasingly to respond to such thinking. Common law courts began to identify as fundamental certain rights which Parliament was not lightly to be taken as having neglected. The common law has always recognised certain presumptions when interpreting statutes – against criminalisation of conduct without clear words, against retrospectivity, against confiscation without compensation, against ouster of the jurisdiction of and in favour of access to the courts, in favour of secrecy of communications between lawyer and client, and against admission of evidence obtained by torture. To these one should nowadays add more general concepts such as equality. The greater the inroad into any such fundamental concept, the clearer the words required. Again the courts rationalised this as giving effect to Parliament’s implied intention. But, in the absence of any written Constitution, if Parliament used clear enough words, common law courts had to apply them.

Questions about Parliamentary sovereignty

9. A few extra-judicial voices (harking back to Coke CJ) have suggested that under extreme circumstances a different model might emerge even at common law. Parliamentary sovereignty has been described as a construct of the judiciary. It depends on day-to-day recognition in the courts of Parliament’s laws. Might it not therefore be subject to modification by the courts in the same traditional way as they develop the common law? Might there not be statutes so outrageous that the courts would not recognise them? This would be a judicial revolution, not development. However, the possibility came near to being tested in 2004 when the government included in the Asylum and Immigration (Treatment of Claimants, etc.) Bill an ouster clause, seeking to exclude in language as clear as possible any access to the courts by anyone dissatisfied with a decision of the Immigration Appeal Tribunal. Happily, there was sufficient reaction to this unprecedented proposal to oblige its withdrawal in the legislative House of Lords.
10. Echoes of the debate are, however, found in an interesting case, which arose from the Hunting Act 2004. This Act was aimed at banning fox-hunting, though it does not appear to have achieved anything like that. The Act was forced through Parliament without House of Lords consent after one year’s delay. This was by use of the combination of the Parliament Acts 1911 and 1949. The 1911 Act had allowed the House of Commons to force legislation through when House of Lords consent was refused. But it had set a period of two years’ delay before this could occur. The 1911 Act procedure was then in 1949 used to reduce the period of two years in the 1911 Act to one year. In R (Jackson) v Attorney General [2005] UKHL 56, the validity of the 1949 Act was challenged. It was argued that the 1911 Act could not be used by the Commons to increase its own power which it only had under the 1911 Act. In short, this was the Commons seeking to hold itself up by its own boot-straps. The House rejected the challenge. But it accepted that it was for the courts to judge what counts as an Act of Parliament, and some of the Law Lords left expressly open what might be the judicial reaction in extreme circumstances14. Lord Steyn said at paras 101-2:

“101. The Attorney General said at the hearing that the government might wish to use the 1949 Act to bring about constitutional changes such as altering the composition of the House of Lords. The logic of this proposition is that the procedure of the 1949 Act could be used by the government to abolish the House of Lords. Strict legalism suggests that the Attorney General may be right. But I am deeply troubled about assenting to the validity of such an exorbitant assertion of government power in our bi-cameral system. It may be that such an issue would test the relative merits of strict legalism and constitutional legal principle in the courts at the most fundamental level.

102. But the implications are much wider. If the Attorney General is right the 1949 Act could also be used to introduce oppressive and wholly undemocratic legislation. For example, it could theoretically be used to abolish judicial review of flagrant abuse of power by a government or even the role of the ordinary courts in standing between the executive and citizens. This is where we may have to come back to the point about the supremacy of Parliament. We do not in the United Kingdom have an uncontrolled constitution as the Attorney General implausibly asserts. ….. The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. It is not necessary to explore the ramifications of this question in this opinion. No such issues arise on the present appeal.”

11. In a mature democracy, the hope must be that extreme situations will be avoided. As Lord Hope said at para 125:

“In the field of constitutional law the delicate balance between the various institutions whose sound and lasting quality Dicey …. likened to the work of bees when constructing a honeycomb is maintained to a large degree by the mutual respect which each institution has for the other. In Pickin v British Railways Board [1974] AC 765, 788A-B Lord Reid observed that for a century or more both Parliament and the courts have been careful to act so as not to cause conflict between them. This is as much a prescription for the future as it was for the past.”

Written constitutions are of course designed both to forestall and to cater for extreme situations, although in the end the law may itself prove insufficient or be subverted: witness for example Zimbabwe. Interestingly, Lord Hope did himself mention a possible argument that the United Kingdom already in one limited respect possesses a written Constitution. The Act of Union between England and Scotland of 1707 preceded and provided for the creation of the United Kingdom Parliament, and the argument is that certain of its provisions might therefore be incapable of amendment. The argument may risk proving too much. Even the most entrenched provisions in written constitutions are usually capable of being altered in some way, even if only by plebiscite. We could not easily bring back to life the English and Scottish Parliaments which agreed to the Act of Union in 1707!

The European Community

12. The first real inroad into the traditional model of Parliamentary sovereignty came as a result of the United Kingdom’s membership of the European Community. The United Kingdom takes a largely dualist (as opposed to monist) approach towards public international law. In other words, international treaties do not become automatically part of United Kingdom law; they do so only if and when enacted domestically. Domestic effect has thus to be given to the European Treaties by the European Communities Act 1972. Section 2(4) of that Act provides that any statute (past or future) shall “be construed and take effect subject to directly enforceable Community rights”. On a conventional view of Parliamentary sovereignty, any later statute inconsistent with the European Treaties might to that extent have been treated as repealing the European Communities Act. But section 2(4) of the 1972 Act has been accepted as a sufficient basis (first) to interpret later statutes consistently with European Community law, in accordance with the Community law principle that domestic legislation should “so far as possible” be so read, and (second and fundamentally) as a sufficient basis for courts to treat even primary legislation as void if it cannot be read consistently with EC law. This was necessary if the United Kingdom was to give the primacy to European law which the European Court of Justice has required in cases such as van Gend en Loos15. But it required some modification of the rule of recognition whereby United Kingdom courts identify what is United Kingdom law. Later inconsistent statutes are not treated as impliedly repealing the European Communities Act 1972 pro tanto, but rather as themselves void.

More recent changes

13. After coming to power in 1997, a new government initiated a most ambitious, but well-prepared, programme of constitutional reform. Its three main features were reform of the House of Lords, devolution in Scotland, Wales and Northern Ireland (creating a sort of mini- but unbalanced federalism) and the domestication by the Human Rights Act 1998 of the Human Rights Convention rights. The first, House of Lords reform in 1999, involved displacing almost all of the hereditary peers (some 90 remain, elected by their peers by an arcane system). The effect has been to make the House of Lords more balanced politically. There are now three main, roughly equal groups: Labour, Tory and cross-benchers. The House of Lords’ confidence and ability to scrutinise and, within the limits of its legal and conventional power, to review or reject governmental bills has increased.
14. The second feature was devolution, and the third was the Human Rights Act, which until 1998 was binding on the United Kingdom only internationally. Devolution and the domestication of the Human Rights Convention were linked. The devolution legislation provides that the devolved assemblies and executives have no power to pass legislation or do acts contrary to the Convention rights. The Privy Council has been given jurisdiction to determine whether any devolved assembly or executive has acted within its powers, including power to determine whether any of the assembly’s statutes or any of the executive’s acts are void as conflicting with Convention rights.
15. The Human Rights Act 1998 is a subtle instrument. It follows a different pattern to the European Communities Act 1972 in the respect paid to Parliamentary sovereignty. Section 1(2) gives domestic effect for the purposes of the Act to Convention rights in the same terms as those in the Convention. Section 2 requires courts to “take into account” any judgment or decision of the European Court of Human Rights when “determining a question which has arisen in connection with a Convention right”. Echoing European Community law, section 3(1) provides that courts shall “so far as it is possible to do so” interpret and give effect to all legislation in a way which is compatible with the Convention rights. It is where this is not possible that the distinction exists between the position in relation to Convention rights and European Community legislation. Where primary legislation of the Westminster Parliament cannot be read as compatible with Convention rights, the court can do no more under section 4 than make a declaration of incompatibility. This does not invalidate the legislation. It merely leads to an accelerated procedure for Parliament to decide whether to pass amending legislation. If it does not do so, then of course the United Kingdom remains in apparent breach of its international obligations and at risk of individual claims in Strasbourg. So far (in the twenty-five or so cases where declarations of incompatibility have been made) Parliament has always amended legislation, to comply with the Convention16. Subordinate legislation and other administrative acts incompatible with the Convention are, on the other hand, unlawful and void, and victims may claim damages (or, in the case of a court decision contrary to Convention rights, appeal) in the United Kingdom.
16. After a period of some years’ respite, the government returned to the theme of constitutional reform. This time it did so with considerably less forethought. Without warning, on 12 June 2003 it issued a back of an envelope press announcement. The announcement addressed the positions of the Lord Chancellor and his department, the Law Lords, judicial appointments and discipline. The Lord Chancellor had for centuries occupied a central, although anomalous, position at the cusp of the three arms of state. He was a member of the Cabinet, Speaker of the legislative House of Lords, and Head of the English and Welsh Judiciary able to sit in and entitled to chair the Appellate Committee of that House. In Gilbert and Sullivan’s Iolanthe, the Lord Chancellor enters, singing “The Law is the true embodiment of everything that’s excellent. It has no kind of fault or flaw. And I my Lords embody the Law”. He was largely responsible for judicial appointments, though acting on advice and in accordance with increasingly formalised procedures. He was responsible for judicial conduct and discipline, although increasingly in conjunction with the day-to-day chief justices of the three United Kingdom jurisdictions, England, Scotland and Wales. The Strasbourg authorities were starting to focus on the anomalies of his position. Influential voices had also suggested that the Law Lords, although consisting of experienced judges and operating entirely non-politically, might be better understood if constituted into a separate Supreme Court.
17. The back of an envelope press announcement on 12 June 2003 appears to have owed a lot to largely forgotten political expediencies. The government announced that it was abolishing the office of Lord Chancellor (and all office and door signs were changed immediately), establishing a new Supreme Court and establishing commissions for judicial appointments. Temporary chaos ensued. It was found at once that the legislative House of Lords could not function without a Speaker and that the Lord Chancellor had innumerable statutory functions. After a long period of what Europe calls “reflection” and extensive negotiations with the judiciary, a viable Constitutional Reform Act 2005 was enacted. The Lord Chancellorship remains as a title, but he is now a purely political figure on whom specific duties are imposed to observe the rule of law and respect the independence of the judiciary. Until 2007, he continued to be a peer, heading the newly named Department of Constitutional Affairs, responsible for court service and legal aid.
18. On 9 May 2007 the government then announced the creation of a new Ministry of Justice. This was to expand to take over responsibility for criminal law and prisons from the Home Office. The emergence of so large a department with so many calls on its budget disturbed the English judiciary, and led to yet further negotiations between them and the government. These did not go far until on 28 June 2007 a new Prime Minister appointed a new Lord Chancellor, Mr Jack Straw, who was prepared to take a new look. In April 2008 agreement was reached on a form of partnership between the Lord Chief Justice and Lord Chancellor in relation to the control of the court service. Further, its day to day administration was to be left to a board of 11 persons, comprising an independent non-executive chair and two other non-executives, three representative judges, one Ministry of Justice representative, the Chief Executive and three other Court Service executives. The Chief Executive and all Court Service staff owe joint duties to the Lord Chancellor and Lord Chief Justice for the efficient and effective operation of the courts. The Lord Chancellor and Lord Chief Justice have a joint role in agreeing on the budgetary bid, on which the latter is ultimately able to make representations to Parliament.
19. Following the changes in the Lord Chancellor’s role, the Speaker of the Lords is now a peer elected by her fellow peers. The heads of the judiciaries are the three chief justices, who have a dominant role in disciplinary matters. The Lord Chancellor’s role in judicial appointments and discipline is diluted to the point where it can be largely discounted. The Law Lords will on 1st October 2009 become the new United Kingdom Supreme Court, moving from the Palace of Westminster to a refurbished building the other side of Parliament Square, which it will share with the Privy Council. But our powers will not change. We shall not acquire any greater power to strike down legislation. We shall not be a United States Supreme Court (and certainly not politicised). The only change will be a transfer of the competence over devolution issues from the Privy Council to the new Supreme Court.

Constitutional Renewal Bill 2008 and Green Paper on Bill of Rights

20. Still more recently, the new Prime Minister has aimed at constitutional reform, in the form of an uncomfortably named Constitutional Renewal Bill. It has some provisions about the security of tenure and roles of law officers and prosecutors. These go significantly less far than their equivalents in the Westminster style constitutions given to former colonies17. The Attorney General has an ambiguous role which was highlighted by advice given immediately prior to the Iraq War. S/he is, at one and the same time, (i) responsible for the prosecution service and for the Treasury Solicitor’s department which deals on behalf of the government with civil matters, (ii) guardian of the public interest, and (iii) chief legal adviser to the government of the day, expected to attend Cabinet when events require. A number of voices question the appropriateness of the Attorney General wearing all three hats. The presently proposed reform seems unlikely to go far in removing the potential for problems. It preserves both the Attorney’s role as government legal adviser and power to intervene to safeguard national interest. The Act makes minor amendments to the arrangements regarding judicial appointments and provides for the management of the civil service and a civil service code. It contains interesting new provisions requiring treaties to be laid before Parliament before ratification, other than in exceptional circumstances, and precluding ratification if Parliament within 21 days resolves that the treaty should not be ratified. Currently, the government is also pursuing the idea of a statutory Bill of Rights and Duties raised in a Green Paper of July 200718. The subject matter of any such Bill would necessarily overlap with ground already covered by the Convention rights, but might (it is suggested) underline that human rights come with responsibilities and might also add to the Convention rights (for example, by recognising the right to jury trial or by including some socio-economic rights). What this may mean in practice will appear from a further Green Paper expected shortly to be published.

Does the lack of a written Constitution matter?

21. In relation to European Community law and the Convention on Human Rights, the answer is probably not much in practice. Of course it is clear the United Kingdom does not have a written Constitution in the legal sense in which most other countries in the world (the exceptions being, it appears, New Zealand and Israel) have one. It has no comprehensive governing document and certainly none with entrenched provisions. Parliament could in theory repeal tomorrow the European Communities Act 1972 and the Human Rights Act 1998. But theory and practice work differently, and both Acts have in reality achieved considerable entrenchment of the provisions or principles they guarantee.
22. Second, both in the United Kingdom and in countries without a written Constitution, courts have accepted the powerful obligation to interpret domestic law “as far as possible” consistently with European Community law or Convention rights. How far these allow meaning to be stretched beyond what appears contextually natural is of course a difficult question. The United Kingdom approach has been to confine the exercise to expanded interpretations which “go with the grain” of the legislation19. This may perhaps be paraphrased as meaning that they are consistent with its fundamental features, even if they require some linguistic changes. To go further would be “judicial vandalism” or change black into white20. Some have suggested that the House of Lords has at least once been guilty of such vandalism21.
23. It is where it is not possible to interpret domestic legislation compatibly with European Community or Convention law, that theoretical differences exist between the United Kingdom and countries with a written Constitution. In theory, Parliament could, as I have said, decide that the United Kingdom should leave Europe tomorrow. But Eurosceptic though we and in particular our press may be, this is inconceivable, and, while we remain within, directly applicable Community law prevails over any contrary domestic law. Here lies a paradox. It is because we have no written Constitution both that Parliament is sovereign and that Parliament has surrendered some of its sovereignty to Europe. In contrast, in countries which have no sovereign parliament and where institutions are bound by a written Constitution, there is scope for argument how far European sovereignty can prevail over the domestic Constitution. The German Constitutional Court has addressed this problem in its two Solange judgments of 29 May 1974 and 22 October 1986 in which it held that the German Constitution remained in its protection of fundamental rights theoretically superior to Community law, although in practice the latter would be accepted as containing equivalent protection,22 and in its Maastricht decision of 12 October 1993 in which it held that the German courts, rather than the European Court of Justice, were the ultimate arbiters of the scope of the powers granted to the Community23.
24. A similar position has been taken by the Danish Supreme Court24 and Polish Constitutional Court25 and also, it seems, by the French Conseil Constitutionnel in considering the proposed European Constitutional Treaty26. The problem about this approach is that the European Court of Justice is under the European Treaties the ultimate arbiter of compatibility with the Treaties. Indeed, courts should refer to it questions of incompatibility. If national constitutional courts were to take a different view from the Luxembourg court, their countries would ultimately be liable to penalties for non-compliance with the Treaties. In practice, it seems likely that national constitutional courts or the European Court of Justice would be careful to avoid direct conflict. But the possibility of conflict is probably a better incentive for the European Court of Justice to avoid conflict than any which the United Kingdom, with its lack of any written Constitution, can offer.
25. Turning to the European Convention on Human Rights, the position is different. Convention rights have a status no higher than that of ordinary statute, whether one is talking of the United Kingdom or of other European states such as Germany and France. Convention rights can thus in theory be overridden by later incompatible domestic legislation. All the more, of course, can they in theory be overridden by a right or balance of rights recognised by the Constitution. But this would put Germany in breach of its international obligations under the European Convention and render it liable in Strasbourg. The German Constitutional Court has faced this issue by asserting the superiority of the Constitution, but at the same time holding that “as long as applicable methodological standards leave scope for interpretation and weighing of interests”27, German courts must adopt an interpretation consistent with the Convention. German law on privacy has posed some interesting problems for German courts in this regard28. The German Supreme and Constitutional Courts under the Constitution and the Strasbourg Court under the Convention have taken different views as to the appropriate balance between press freedom and the right to private life in the context of paparazzi photographs. The German Courts are still addressing the consequences29. Lawyers must be grateful to Princess Caroline of Hannover for the persistence with which she has pursued her wish not to have photographs of herself and her family published in the press. It has been suggested that in areas like this, where national constitutions have established a recognised balance between two conflicting rights, press freedom and individual privacy, the Strasbourg court might leave a greater margin of appreciation or freedom to domestic constitutions and courts to arrive at the appropriate balance.
26. A written Constitution may also introduce into domestic law rights different from and going beyond those recognised under the Strasbourg Convention. That Convention does not directly address social and economic rights, such as a right to schooling, housing or benefits. But at least in Western European democracies such matters are heavily regulated by very detailed instruments, and general rights of this nature might be of limited value and certainly very difficult for courts to address. An interesting question has, however, recently arisen, namely whether, in the absence of any written Constitution, the Human Rights Act 1998 may not itself have introduced into United Kingdom domestic law greater rights than would be enforceable in Strasbourg. One view was that domestic courts could never find a violation of Convention rights unless Strasbourg would also do so. But Strasbourg allows domestic courts a margin of appreciation in certain areas, recognising in particular that differing countries may strike differing balances between different Convention rights and interests, e.g. in areas such as the protection of family or private life. It is then for domestic institutions to undertake the balance. In R v P [2008] UKHL 38, an appeal from Northern Ireland, the local subordinate legislation (unlike the parallel English statute) did not permit adoption by unmarried couples. The House of Lords considered, obiter, that, even if Strasbourg had regarded this as falling within the permissible margin of appreciation at an international level, it was open to us as the relevant United Kingdom appeal court to hold that the balance struck by Parliament as legislator was unjustifiably discriminatory, contrary to the rights to family and private life and to equal treatment protected by Articles 8 and 14 of the Convention. On this basis, the United Kingdom may be said to a limited degree to have its own domestic bill of rights, which, although not fully entrenched, has a very strong measure of entrenchment under the 1998 Act.
27. Does the United Kingdom suffer from its lack of any coherent written Constitution? One main virtue of a written Constitution is to present the institutional layout and working of a state to its citizens in a clear and logical way. Here, I shall, however, deviate to confess to a small personal regret about the logic of constitutional arrangements. At present, as a member of the Upper House of Parliament, I am eligible technically to participate in legislative business. In fact, the Law Lords have renounced any role with political implications and largely renounced any role in legislative business of the House of Lords at all. But the tradition continues that a Law Lord chairs the Sub-Committee (Sub-committee E of the European Union Select Committee) responsible for scrutinising European Law and Institutions. I shall be the last Law Lord to do this, since under the Constitutional Reform Act 2005 my right actively to participate in the affairs of the House will be suspended while I am a serving judge. Purer though the separation of powers will be as a result, I shall regret its application in this respect. The role of chair, indeed that of the whole Sub-Committee, is non-political, very interesting and informative, and it gives a valuable exposure to the way in which Europe legislates and operates, which is I believe useful judicially without in any way compromising independence. I hope that there are also benefits both ways.
28. Now, however, for the far more important positive side of clear and logical constitutional arrangements. An example is offered by a comparison of the arrangements under which the Select Committee (including Sub-committee E) operates and those in the German Parliament. The Select Committee is appointed to consider “European Union documents and other matters relating to the European Union”. Such documents include any proposal for European Community legislation, any document published for submission to the Council or European Council, and any other document relating to Union matters which is deposited in the House by a minister. But the concept of “proposals” adopted for the purpose of scrutiny does not cover documents such as statements of position by Member States or suggested textual compromises. These are frequently exchanged during negotiations between Member States. Influential documents such as presidency or individual Member States’ summaries or positions are therefore not covered. The minister may or may not decide to disclose them. He or she may claim that they reflect confidential negotiations which should not even be disclosed to Parliament. There is indeed a possible problem here. Although the Select and Sub-Committee’s scrutiny take place in private, communications to and from ministers are public documents. But, if confidentiality is a real problem, consideration should perhaps be given to at least a temporary restriction on public disclosure. In contrast, the German Parliament sees confidential negotiating documents, but on the basis that, although they are generally open, confidentiality will, where appropriate, be preserved.
29. The Select Committee operates under a House of Lords Scrutiny Reserve Resolution of 6 December 1999, according to which “[n]o Minister of the Crown should give agreement in the Council or in the European Council to any proposal for European Community legislation […] which is still subject to scrutiny or on which the European Union Committee has made a report to the House for debate, but on which the debate has not yet taken place”. In the case of decisions requiring unanimity, abstention is treated as giving agreement. But the Minister may override scrutiny and give agreement “if he decides that for special reasons agreement should be given”, although then he must afterwards explain his reasons. Among the reasons for doing so may be the perceived exigencies of negotiations, e.g. where agreement is urgent and scrutiny impractical (e.g because Parliament is not in session). In practice, scrutiny is quite rarely overridden.
30. The House of Commons also has a European Scrutiny Committee, operating under Standing Order 143. But its mandate is, if anything, more limited. It simply examines “European Union documents”, defined (for present purposes) in terms identical to the definition to be found in the House of Lords Select Committee’s mandate. Its task is to report to the House of Commons on the legal or political importance of such documents, to enable debate in the House of Commons.
31. In practice, the government goes beyond the formal arrangements by providing Explanatory Memoranda and, in the case of substantial changes and even where no depositable document has emerged, Supplementary Memoranda in respect of proposals. But there is no public document reflecting such arrangements. Cabinet Office scrutiny guidelines by which government directs itself are not public.
32. All this is in contrast with the detailed regulation of the relationship between the Bundestag and Bundesrat on the one hand and the Federal German government on the other, to be found in Article 23 of the German Constitution and amplified both by a law dated 12 March 1993, as amended on 17 November 2006, and by an agreement dated 28 September 2006 under Article 6 of that law. Article 23 enshrines in the Constitution the general principle that the Federal Government shall inform both houses of the German parliament “comprehensively and at the earliest possible moment” in relation to European matters (para 2), give the Bundestag the opportunity to take a position before the government takes part in any legislative act of the Union and take account of any position taken by the Bundestag in negotiations (para 3). The Bundesrat is also to participate in so far as it would have to be involved in any corresponding German measure or in so far as the matter falls internally within the competence of the German states (para 4).
33. The law of 12 March 1993 spells out the implications of these principles. The Bundestag can operate through a scrutiny committee (section 2). The government’s obligation to inform comprehensively and at the earliest possible opportunity extends to all proposals in the field of the Union which could be of interest for the Federal Republic (section 3). The government will inform the Bundestag immediately of its intentions, of the course of the negotiations, of positions taken by the European Parliament and Commission and of other states as well as of the decisions taken (section 4). The Bundestag must be given sufficient time to consider the matters put before it before taking a position, and the government will take any such position as a basis for its negotiations (section 5).
34. The agreement of 28 September 2006 defines “proposals” to include proposals under both the first and third pillars, “including amended proposals”. It fills out sections 3 and 4 of the law by requiring the submission both of official Commission documents and of unofficial documents (so-called “non-papers”) of the Council and European Council, of informal ministerial meetings and of Council meetings. It also covers reports and communications of Union organs for and about meetings of either Council or informal ministerial meetings, and of national representatives, as well as reports of the Federal German representation in Brussels. It provides for explanatory memoranda to be provided normally at least ten working days before any Council discussions (para I.5). If the Bundestag takes a position which the government does not consider achievable, the government must note its reservation accordingly. It must try to reach agreement with the Bundestag, while having the ultimate right to differ for important internal or external political reasons (para II.4). The German arrangements have, in short, a completeness and clarity that the United Kingdom arrangements do not.
35. Under the existing European Treaties, the United Kingdom does not participate in the areas of Freedom, Security and Justice (Chapter IV of the first pillar) unless it opts in, and the Treaty of Lisbon (on which Sub-Committee E assisted to write a large report) would with the merging of the first and third pillars extend such opt ins. The House of Lords sought in that context to improve scrutiny arrangements for opt ins. An amendment was introduced to the Lisbon Treaty Bill 2008 in the House of Lords to require opt ins to be subject to positive resolution of both Houses. The government to forestall this amendment announced that it would accept tighter scrutiny arrangements. It would provide an explanatory memorandum within ten days of any proposal, would take into account any scrutiny committee views received within 8 weeks of the proposal, would arrange a debate on an amendable motion if required in either House, would not, “as a general rule”, override scrutiny by opting-in within the 8 week period, and would ensure that a minister was regularly available before each Justice and Home Affairs Council.
36. However, the Lisbon Treaty is currently in limbo, and these concessions have not survived. Asked by the House of Lords Select Committee whether the government would apply the same improvements to the existing opt-ins, the ministerial reply (in a letter dated 2 July 2008 from a very European-minded minister, Baroness Ashton, now our European Commissioner) was that she did not believe it appropriate to decouple them from the Lisbon Treaty, although the government was “strongly committed to effective scrutiny of JHA, and keen to explore how existing scrutiny arrangements can be improved”. In short, one might think, although the government was keen to improve scrutiny, it was not going to do so yet. Mr Jim Murphy, Minister of State for Europe, gave similar replies orally to the House of Commons Scrutiny Committee on 25 June and to the House of Lords Select Committee on 15 July 2008.
37. One small improvement to date has been a letter of 1 July 2008 accepting another point on which the Select Committee had long been trying to insist, namely that “agreement” to a proposal should include agreement to a “general approach”, which is a method by which ministers at Council meetings very frequently finalise the basic outline and provisions of a draft proposal. United Kingdom scrutiny of European legislation is thus conducted on a basis which does not to come near the fuller and constitutionally purer German position. Without experience as to how the German system works in practice, it is not possible for me to express any view as to which is more effective. In practice, as so often with the British Constitution, mutual cooperation appears to work well without entirely coherent arrangements to back it. But there is still a strong case for clarity and comprehensiveness in arrangements for Parliamentary scrutiny of the exercise by the executive of what is in reality after all legislative power in relation to European Community affairs.
38. There are other potential benefits of a written Constitution. A written Constitution can have or acquire a symbolic value, as is the case of the United States or, I think, German Constitution. (The symbolism may not of course always be positive, as perhaps in the case of a European Constitution, probably anyway misnamed.) Such symbolism may, I think, be increasingly important in a diverse society like the United Kingdom’s. It may encourage a sense of unity and even loyalty, which is now sometimes feared to be lacking.
39. But, above all, written constitutions protect minorities against unfettered exercise of majority power by governments elected on a first past the post system for periods of five year – the elective dictatorship of which Lord Hailsham spoke. The recent focus on constitutional issues does, I believe, owe much to a general feeling that the exercise of power, above all by the executive, would benefit from greater definition and transparency. The separation of powers has not extended to any real separation of the executive from the legislator. On the contrary, the former tends by and large to control the latter. On the other hand, no loud voices are to be heard calling for immediate enactment of a full written Constitution, least of all from the United Kingdom judiciary. The 1998 Act is a subtle and, so far, aside from irresponsible criticism, largely successful measure. The judiciary is working out its limits, and Parliament, if it disagrees, can, subject always to scrutiny in Strasbourg, amend the law. It would also be difficult to formulate many of the sophisticated conventions which govern the day to day operation of British constitutional life into constitutional principles. Nonetheless, attempts are being made by various academic experts and non-governmental bodies, and one day maybe they will succeed. Meanwhile, we shall rely on the ultimate bedrock of a modern democracy. That is the day to day social harmony and compromises between its diverse elements – the cooperation between bees, or human beings – of which Lord Hope spoke so eloquently in the Hunting Act case.
 

Endnotes

1 A Lord of Appeal in Ordinary. The following is the text of talk given to mark the opening of the academic year at the Centre for British Studies, Humboldt-Universität zu Berlin, 31 October 2008.

2 With its prohibition on imprisonment or exile of anyone “except by the lawful judgment of his equals of by the law of the land” and its guarantee that “To no one will we sell, to no one deny or delay right or justice” (chaps. 29-20).

3 Prohibiting the King from raising money by forced gifts, loans, tax or otherwise without Parliamentary sanction or from imprisoning or detaining anyone or issuing commissions for proceeding by martial law in this connection.

4 Proclaiming and protecting the authority and independence of Parliament, prohibiting any standing army in time of peace, declaring illegal any power of dispensing with laws of their execution “as it hath been assumed and declared of late”, prohibiting excessive fines or bail and cruel and inhuman punishments and protecting jury trial.

5 Securing judicial tenure, by providing that the higher judiciary could only be removed from office by address of both Houses of Parliament.

6 Dr Bonham’s Case (1610), 8 Co Rep. 114a.

7 See e.g. Liyanage v The Queen [1967] 1 AC 259, holding that legislation directed at the trial of particular prisoners already charged with particular offences on a particular occasion involved a usurpation and infringement by the legislature of Ceylon of judicial powers inconsistent with the implied intention of the Constitution of that state; Hinds v The Queen [1977] AC 195, holding that the Constitution of Jamaica rendered invalid the creation by ordinary law of a new Gun Court, the judges of which were to exercise jurisdiction equivalent to that granted under the Constitution to the Supreme Court, but were not to be or to have the same constitutional security and tenure as Supreme Court judges. Authorities such as these remain fundamental to current Privy Council jurisprudence: see e.g. State of Mauritius v Khoratty [2006] UKPC 13, where the Privy Council held that a law removing any right to apply for pre-trial release on bail where the prosecution charged certain drugs offences infringed a fundamental principle of democracy and so could only be introduced by plebiscite and unanimous vote in the Assembly, and Horace Fraser v Judicial and Legal Services Commission [2008] UKPC 25, where the Privy Council held that even if the contract under which they had been engaged purported to permit termination at will during the period of their engagement, members of the lower judiciary enjoyed during that period security of tenure, in the sense that they could only be removed for due cause by decision of the Judicial and Legal Services Commission.

8 The Board of the Privy Council sitting on the appeal was careful to note (para 4): “that the Board, sitting as the final court of appeal of Jamaica, has no interest of its own in the outcome of this appeal. The Board exists in this capacity to serve the interests of the people of Jamaica. If and when the people of Jamaica judge that it no longer does so, they are fully entitled to take appropriate steps to bring its role to an end. The question is whether the steps taken in this case were, constitutionally, appropriate.”

9 See A.V. Dicey, The Law of the Constitution (1885), ch 4. Dicey, one of England’s most famous constitutional writers in the 19th century, at one point even attacked the French system of administrative justice, administered by the Conseil d’Etat as “repugnant to the British Constitution”, viewing it misguidedly as means of giving special rights or privileges to, rather than of controlling, government.

10 This included decisions denying the courts’ right to intervene in case of manifest error of law on the record: Nakkuda Ali v Jayaratne [1951] AC 66, 80-81; and denying the right to any hearing in a case of withdrawal of a trading licence, and (in a wartime context) interpreting the words “If the Secretary of State has reasonable cause to believe any person as being of hostile origin or associations ….” as meaning no more than “If he genuinely considers”, and as precluding any review of the exercise of what was called his executive discretion: Liversidge v Anderson [1964] AC 206, described within 20 years in a later House of Lords case as “a very peculiar decision”, see Ridge v Baldwin [1964] AC 40, 73 (Lord Reid), and redeemed only by Lord Atkin’s dissent (beloved of law teachers and students) in which he said that he knew of only one authority which might justify the majority’s method of construction: “‘When I use a word’, Humpty Dumpty said in a rather scornful tone, ‘it means just what I choose it to mean, neither more nor less’. ‘The question is,’ said Alice,’whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all'” (Liversidge v Anderson [1964] AC 206, 245).

11 Starting with Ridge v Baldwin [1964] AC 40, which revived the principles of natural justice, requiring a public authority which had power to dismiss any police officer who it thought negligent or otherwise unfit to inform the officer of any charges against the officer and to give an opportunity for their rebuttal before dismissal, and Re Racal Communications Ltd. [1981] AC 374.

12 R v Inland Revenue Commissioners, ex parte Federation of Self-Employed and Small Businesses Ltd [1982] AC 617.

13 That is, in traditional terms, “arrived at a decision which no reasonable decision-maker could reasonably have arrived at”. But recent authority has in some contexts softened this test and allowed a closer and “more anxious” scrutiny: see e.g. Doherty v Birmingham C.C. [2008] UKHL 57.

14 See Lord Steyn at paras 101-2, Lord Carswell at para178 and Lord Brown at para 194.

15 Case 26/62 van Gend en Loos (NV Algemene Transporten Expeditie Onderneming) v Nederlandse Administratie der Belastingen [1963] ECR 1.

16 The European Court in Strasbourg has not yet been prepared to hold that this gives complainants a sufficient domestic remedy in the United Kingdom, for them to be required to bring proceedings for a declaration of incompatibility before going direct to the Strasbourg court: Burden and Burden v United Kingdom (App no 13378/05) para 34. In that respect, the United Kingdom does not offer the same protection as Westminster style constitutions, under which the Privy Council regularly gives constitutional relief. But the threat of Strasbourg proceedings is a powerful incentive to the United Kingdom to respond retrospectively to declarations of incompatibility.

17 The Directors of Public Prosecutions (“DPP”) and of the Serious Fraud Office are each to be appointed for at least five years and to be removed only if the Attorney General is “satisfied that he is unable, unfit or unwilling to carry out the functions of the office”.

18 Green Paper CM 7170, The Governance of Britain, July 2007, which even suggested that “the need to clarify …. what it means to be the United Kingdom” might “in time lead to a concordat between the executive and Parliament or a written Constitution”. These two possibilities appear however very different – the former would on its face give Parliament, largely controlled by the executive, even greater power, while the latter could well contain provisions making Parliament, and not merely the executive, subject to judicial review.

19 Gaidan v Godan-Mendoza [2004] UKHL 30; [2004] 2 AC 557, para 121 (Lord Rodger).

20 ibid, Lord Rodger at para111.

21 In R v A (No. 2) [2001] UKHL 25; [2002] 1 AC 45. Parliament had deliberately limited the right to cross-examine an alleged rape victim and adduce evidence about any prior sexual relationship with the accused to two specified cases. The House was prepared to read into the statute a liberty to permit such cross-examination and evidence in any other case where it was necessary to avoid a breach of the accused’s Convention right to a fair trial. The alternative, consistent with Parliamentary sovereignty, would have been to make a declaration of incompatibility and leave it to Parliament to frame a fairer law.

22 BVerfGE 37, 271-305 and BVerfGE 73, 339-388, reported in English at [1974] CMLR 540 and [1987] CMLR 225. In it’s the first it held that, in the absence at that time of any systematic protection of fundamental rights under European Community law, the German Constitution with its inbuilt code of such rights must prevail in case of conflict. In the latter, it held that, since the Community had now developed equivalent protection, it would cease to accept cases asking it to compare the protection afforded by European legislation with that available under the German Constitution. But it did not depart from its previous statements about the Constitution’s theoretical superiority. The Constitutional Court there held that it was for it and not the European Court of Justice ultimately to determine whether any European instrument fell within the limits of the sovereign rights which Germany had conferred on the Community by its accession to the European Treaties.

23 BVerfGE 89, 155-213, reported in English as Brunner v European Union Treaty [1994] CMLR 57. The Constitutional Court held that it was for it and not the European Court of Justice ultimately to determine whether any European instrument fell within the limits of the sovereign rights which Germany had conferred on the Community by its accession to the European Treaties.

24 In Carlsen v Prime Minister Rasmussen [1999] 3 CMLR 854.

25 In Poland’s Membership in the European Union (Accession Treaty) Judgment K18/04 of 11 May 2005: see at http://www.trybunal.gov.pl/eng/index.htm for an English summary.

26 Decision No. 2004-505 of 19 November 2004, [2005] 1 CMLR 30.

27 The Görgülü Case, BVerfGE 111, 307, 323, 329.

28 Princess Caroline of Hannover has for some years waged a campaign against the paparazzi which reminds one of Greta Garbo’s plea to be let alone. The statement usually quoted is “I vont to be alone”, reportedly uttered or sighed in the film Grand Hotel. I have not seen the film, but the internet tells me that Garbo later commented: “I never said, ‘I want to be alone.’ I only said, ‘I want to be let alone.’ There is all the difference.” Indeed there is.

29 See the judgment of the Bundesverfassunsgericht of 26 February 2008 (NJW 2008, 1793) and that of the Bundesgerichtshof of 1 July 2008 (NJW 2008, 3141).

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