“A New Magna Carta” Part III: The Written Constitution

The House of Commons Political and Constitutional Reform Committee has launched a public consultation on whether or not the United Kingdom needs a codified constitution. In order to jumpstart the debate, it has published a report that suggests three possible routes toward codification: a Constitutional Code, a Constitutional Consolidation Bill, or a full-fledged Written Constitution. Today, I will discuss the sample Written Constitution.

The Written Constitution is the most innovative of the three documents contained in “A New Magna Carta.” Professor Blackburn engaged in quite bit of blue-sky thinking, but it’s important to remember that his suggestions have not been endorsed by the Political and Constitutional Reform Committee. That being said, the Written Constitution preserves the basic outlines of the current British constitution. The United Kingdom would still be a constitutional monarchy where executive power is vested in ministers who are accountable to Parliament.

However, Professor Blackburn has made a number of tweaks to the institution of the monarchy. Article 4(2) expressly provides that succession to the Crown shall not depend on religion[1] while Article 4(3) creates a new legal right to abdicate. Article 4(8) is one of the more curious provisions:

The Head of State may, after considering such advice as may be given by the Prime Minister, appoint or dismiss such officers and other members of the Head of State’s secretariat or household as the Head of State considers necessary.

This article seems to suggest that the Prime Minister’s advice is not binding when it comes to appointments to the Royal Household, but this is constitutionally awkward since it makes no distinction between the ‘political Household[2]‘ and the ‘personal Household.[3]‘ While members of the former are appointed on the Prime Minister’s recommendation, members of the latter are not.[4] Unless you make the Household entirely apolitical (an idea which certainly has a lot of merit), the Prime Minister must be able to offer binding advice to the Sovereign for certain Household appointments.

More significantly, the Written Constitution also attempts to clarify and codify the powers and duties of the Monarch. Article 4(9) declares that the Sovereign’s functions, except those of a “ceremonial or formal nature,” are derived solely from the Constitution or an Act of Parliament, which essentially abolishes the whole concept of the Royal Prerogative. The following sub-article attempts to codify the principle that the Monarch must act on ministerial advice, but then it sort of dilutes that principle by carving out a number of caveats. In the end, it basically says that the Queen must act on the Prime Minister’s advice, except when she doesn’t have to! The Written Constitution goes on to make ministerial advice non-justiciable. More specifically, the courts cannot consider:

  • whether advice was actually given the Sovereign;
  • the nature of the advice; or
  • whether or not the Monarch acted in accordance with the advice.

This approach is consonant with contemporary practice,[5] but if the courts can’t enforce the Constitutional provisions relating to ministerial advice, one has to wonder if it’s worth including them in the Constitution in the first place.

Article 4(12) catalogs the Sovereign’s political functions. Their broad outline is familiar, but again some of the details have been changed. Perhaps the most significant change is that the Monarch loses all discretion in choosing the Prime Minister. Under Professor Blackburn’s proposals, the House of Commons would elect someone, who would then be formally appointed as Prime Minister by the Sovereign. This is similar to how the First Minister is chosen in Scotland, but it seems to add unnecessary complexity. As long as MPs are chosen through plurality voting,[6] chances are you will have a two-party system. And when you only have two major players, choosing a Prime Minister will usually be a straightforward matter. There’s really no point in having a separate election for Prime Minister if the House of Commons is just going to rubberstamp the choice of the party in power.  It only seems worthwhile if you have a true multiparty system.

The Written Constitution does envision some independent action on the part of the Sovereign. Article 4(14) states that he or she may continue to ‘advise, encourage, and warn’ the government, confer honors that are within the Monarch’s personal gift,[7] and make public statements as Head of the Commonwealth “if occupying that position.” Article 4(15) declares that the Sovereign cannot express a political opinion when exercising personal powers, but Article4(16) arguably renders that provision moot by making the personal powers non-justiciable. In other words, the Monarch must be non-partisan, but there is no legal remedy to be had if he or she should violate that provision. Again, one has to wonder if it’s worth setting these things out in detail if they can’t actually be enforced.

I do like the fact that Professor Blackburn has made an effort to shore-up Cabinet government. The list of Prime Ministerial powers in Article 8(4) specifies that many of them are to be exercised “with Cabinet,” while Article 9(6) states that the Cabinet “has the general direction and control of the government of the United Kingdom.” Historically, the Prime Minister has been primus inter pares in relation to his Cabinet colleagues, but some commentators have argued that the role of the Cabinet has been diminished over the last few decades. Tony Blair in particular was accused of moving toward a more ‘presidential’ style of government where the Cabinet’s role in decision-making was reduced to rubberstamping individual ministers’ decisions.

The Written Constitution’s provisions relating to Parliament are probably the most innovative, though Professor Blackburn gets off to a rocky start when he attempts to give the House of Commons a mission statement. Article 15(3) declares that:

The House of Commons is elected to represent the people of the United Kingdom and ensure that the conduct of government is for, and with, the people under the Constitution. It does this by choosing the Prime Minister, by providing a national forum for public consideration of issues, by passing legislation, and by scrutinising and holding the executive and public services of state to account.

Much like its corporate cousins, this mission statement is little more than a bunch of high-sounding rhetoric that is essentially meaningless.  In fact, it arguably masks the fact that the Constitution does very little to enhance parliamentary control of the Executive.

The mission statement for the ‘Second Chamber’ (Article 15[4]) is actually a bit less obnoxious because it deals in specifics rather than vague generalities. The Second Chamber is given special responsibility for scrutinizing constitutional amendments, treaties, and the use of military force, which seems vaguely reminiscent of the US Senate’s advise-and-consent responsibilities.

However, I find his conception of the Second Chamber to be highly unsatisfactory overall. He envisions an elected chamber of 240 members that has similar powers to the current House of Lords. I think the idea of an elected Second Chamber is a mistake because it will likely result in a body dominated by professional politicians. Right now, there are many peers who are experts in various fields as well as peers who don’t belong to any political party. I doubt people like that would continue to sit in an elected chamber. Non-partisan candidates would likely find it hard to compete with those bankrolled by major political parties, while experts might be reluctant to stand for election since it would likely mean giving up their careers.[8] Given that the Second Chamber is supposed to be a revising chamber, it needs to have members with diverse backgrounds and a wide range of experience.  

The composition of the Second Chamber aside, the Written Constitution does propose some worthwhile changes to Parliament. Article 15(5) greatly reduces the Commons’ financial privilege by declaring that the Second Chamber can amend any legislation other than Money Bills. Currently, the Government can use the Commons’ financial privilege to block any amendments made by the House of Lords that touch upon financial expenditure. This has arguably been abused in recent years, and it caused quite a bit of controversy when the Coalition’s Welfare Reform Act 2012 was going through Parliament. It’s a relic of the past that could safely be abolished, I think. 

Article 15(6) provides that there shall be a Joint Committee of both Houses that is responsible for resolving differences between them. This is roughly analogous to the conference committees used by the US Congress, and it represents the revival of a practice that hasn’t been used in Britain for centuries. As it stands now, there is no formal mechanism for resolving disputes between the Houses of Parliament. In essence, they just shout at each other until one side gives way. This isn’t the best way of doing things, and the idea of a Joint Committee has considerable merit.

Article 29 gives Parliament the right to approve treaties. At the moment, treaties are laid before Parliament prior to ratification,[9] but Parliament need not endorse the treaty for it to be ratified. The Written Constitution would require an affirmative vote from both Houses before ratification could take place.

The Written Constitution also includes a lengthy and detailed Bill of Rights. While most of the rights contained therein are logical (e.g., freedom of religion, freedom of speech, freedom of assembly), some are more problematic. Article 38 (Social and Economic Rights) sets out a rather expansive list of rights, including the right to an “adequate” standard of living, and the right to enjoy the “highest attainable standard of physical and mental health.” While the underlying principles are laudable, it’s debatable whether or not they should be enshrined in a Constitution, and many of these new rights seem like they could become hostages to fortune. Guaranteeing people the “highest attainable standard of physical and mental health” seems like it could be particularly knotty since it could be hard to define and costly to enforce.

Article 43 gives the courts the power to issue declarations of unconstitutionality. It’s modeled on the incompatibility provisions of the Human Rights Act 1998 (1998 c. 42), which means the courts generally won’t actually be able to block the enforcement of unconstitutional legislation. All they will be able to do is alert Parliament to the problem and hope that Parliament agrees to fix it. While there is a case for a more robust approach, I don’t think Parliament would tolerate American-style judicial review.  

Article 52 sets out the ways in which the Constitution can be amended, and it’s also quite deferential to Parliament. Constitutional amendments will take the form of Acts of Parliament that have been passed by special majorities. Amendments to different parts of the Constitution will require different majorities. Some changes would have to be passed by two-thirds of the entire membership of each House of Parliament, while others can be passed on the votes of two-thirds of those present in each House. These ratification mechanisms respect the sovereignty of Parliament, but the lack of popular participation might seem discordant in this increasingly democratic age.

Despite my concerns with some of Professor Blackburn’s innovations, the Written Constitution is probably the best of the three documents in “A New Magna Carta.” The others seemed rather pointless since they either lacked legal force or could be amended on a whim; the Written Constitution would at least be entrenched and of paramount force.

My biggest objection to the document is that it doesn’t do enough to address the inherent tension between the Executive’s control of the Commons and the Commons’ duty to scrutinize the actions of the Executive. This problem is endemic in Westminster systems, but there are ways to bolster Parliament’s independence. I think New Zealand has been particularly innovative in this regard. Their use of mixed-member proportional representation brings more voices into Parliament, while their procedures seem to provide for more effective scrutiny of legislation than you see in the Commons.[10]

When all is said and done, I don’t think Britain will move toward a codified Constitution. There are so many variables that will have to be taken into consideration that finding a proposal that is widely acceptable will likely prove difficult, if not impossible. The fact that politicians have been debating reform of the House of Lords for over a century without much in the way of results certainly doesn’t bode well for a wider program of constitutional reform! 

NOTES

[1] The Written Constitution apparently envisions the disestablishment of the Church of England. 

[2] The political Household consists of government whips in both Houses of Parliament who are appointed to sinecure offices within the Royal Household. For example, junior whips in the Commons are appointed to the offices of Vice-Chamberlain, Comptroller, and Treasurer of Her Majesty’s Household, while their counterparts in the Lords become Lords- or Baronesses-in-Waiting.

[3] The personal Household consists of individuals who are appointed by the Queen alone. Some of these positions are largely honorary (e.g. the Master of the Horse, or Ladies of the Bedchamber), but others have actual responsibilities (e.g. the Queen’s Private Secretary or the Lord Chamberlain).

[4] It wasn’t always this way. In the reign of Victoria, there was a political kerfuffle when she refused to accede to Robert Peel’s request to dismiss her ladies-in-waiting who were related to Opposition politicians. Peel refused to take office as Prime Minister, and Victoria had to re-appoint the outgoing premier, Lord Melbourne. But the government’s role in the Royal Household has been much reduced since 1920, and most of its members are now appointed without formal ministerial advice.

[5] Interestingly, India allows the courts to consider questions relating to the advice offered to state governors and the federal president.

[6] The Written Constitution specifically preserves the use of plurality voting.

[7] Though it does not actually specify which honors are in the Sovereign’s personal gift.

[8] The present system allows peers to attend whenever they are able, which makes it relatively easy to have a career outside Parliament. But if you’re elected, there will inevitably be great pressure to make Parliament your only career.  

[9] This was originally a convention known as the ‘Ponsonby Rule,’ but it was placed on a statutory footing by Part 2 of the Constitutional Reform and Governance Act 2010 (2010 c. 25).

[10] A perennial criticism of the Commons is that large swaths of legislation are never actually debated due to the Government’s aggressive timetabling of debate. The House of Lords, on the other hand, does not allow the Government to limit debate, so you often get a higher degree of scrutiny in the upper house. 

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