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The Unwritten Constitution of the United Kingdom

Published online by Cambridge University Press:  13 December 2012

John Baker QC*
Affiliation:
Emeritus Downing Professor of the Laws of England, University of Cambridge
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Abstract

There has been much talk of constitutional reform in recent years, but the changes that have actually been taking place have often differed markedly from those that the Government has professed to espouse and have shaken the foundations of the previous system without following any coherent overall plan. Written constitutions are not without shortcomings; the conventions that held the old British constitution in place are in any case difficult to codify or enforce. But a pressing problem with an unwritten constitution is that there is no special mechanism for constitutional change. Recent reforms have therefore become associated with short-term political expediency and spin. The cure is not simple.1

As a tribute to Professor Sir John Baker QC, who has served as a member of the Editorial Board since the Ecclesiastical Law Journal's foundation and energetically continues to do so,2 I am pleased to reproduce the lightly edited text of his British Academy Maccabbaean Lecture.3 Delivered in 2009, though still topical today, it provides a cautionary critique of the direction of travel in the evolution of the United Kingdom's unwritten constitution which I hope will serve as a prelude to an occasional series of articles and comment in the pages of this Journal considering the role of the spiritual within the constitution and the established nature of the Church of England in the twenty-first century. Matters that have been ignored or marginalised in the recent constitutional revolution include the role of the Prime Minister in the appointment of bishops and archbishops and the ecclesiastical patronage exercised by the Lord Chancellor. [Editor]

Type
Articles
Copyright
Copyright © Ecclesiastical Law Society 2013

There are good precedents for legal historians complaining about constitutional dangers, most notably John Selden, whose name would need no commendation to the founders of this Lecture. But he lived in an age when history provided live ammunition in defence of the liberty of the subject and constitutional monarchy. That kind of legal history is no longer of any forensic value in this country. My concerns in 2009 were rooted in very recent history, and came into focus after the inept announcement by Mr Blair on 12 June 2003 that he had abolished the office of Lord Chancellor, apparently without consulting anyone outside his own circle.Footnote 4 I am going to confine my remarks to the brief period since then, although there is a good case for regarding the progressive surrender of autonomy to the European Union, and the various experiments with inland devolution and local government, as beginning a major constitutional revolution well before 2003 and as raising concerns at least as troubling as those on which I shall be concentrating.Footnote 5

When I delivered a public lecture in 2004 on ‘The Constitutional Revolution’,Footnote 6 one of my chief complaints was that grave changes were occurring almost daily without much public notice being taken. Several years on, I can hardly complain of a complete lack of publicity – at least for those sufficiently well informed, and with sufficient leisure, to search the Internet regularly for the appropriate keywords. But I have come to the conclusion that the problems which I tried to identify in 2004 have deepened, and that the ‘revolution’ which I then addressed in somewhat pejorative terms is not to be identified with the ‘constitutional renewal’ that the Government has proudly announced. In fact, there is such a gulf between the public statements of the Government and its actions that one might be forgiven for thinking that the language of ‘renewal’ is more rhetoric than reality, another form of ‘spin’.Footnote 7

It is admittedly difficult to separate constitutional matters from matters of political judgment. I am not sure that ministerial incompetence, arrogance, inefficiency, excessive centralisation or over-regulation can properly be regarded as unconstitutional, except in the sense that it is generally beyond the power of the people to do much about them. They are certainly not wholly new. Nor am I suggesting that the problems with our unwritten constitution all began under Mr Blair; some of them have a longer history. But the problems have come to the fore in the last few years chiefly because of widely perceived changes in the style of government.Footnote 8

First there is the concentration of power in the Prime Minister and his special advisers at the expense of the Cabinet and a professional Civil Service. It has become fashionable to speak of an increasingly presidential style of government. But this does not, of course, mean a constitutional presidency: rather, a novel kind of monarchy. The chief difference from classical monarchy is that our quasi-monarch is indirectly elected – very indirectly, in the case of Mr Brown – but, once in power, he is an absolute monarch for a term of years and rules without the partnership of others.Footnote 9 The Prime Minister would only have to persuade Parliament to suspend the quinquennial system of election and he would really be an absolute monarch. I hope that is still unthinkable; but I am less sure than I was ten years ago. Although the House of Lords retains the power to veto such a measure,Footnote 10 with a reconstituted House of Lords, supinely following the party whip, it would only require a supposed national emergency as a pretext; and we have seen that the Government is willing to play that card on occasion.

There is nothing new in the notion that we have an ‘elective dictatorship’. I remember Lord Hailsham coining the term in a lecture in 1976.Footnote 11 But it has become a more common figure of speech, as evidenced by over 9,000 hits on Google – nine times, incidentally, the number I counted in 2004. Without any opportunity for electoral approval or dissent, we have acquired a form of government that appears to operate without reference to traditional advisory mechanisms or public opinion. Proposals of a fundamental nature often come as a surprise to the outside world, because there has been no preceding clamour for them; and I am not sure the Civil Service or even the Cabinet are always made privy either. There has been some show of a return to public ‘consultation’ since Mr Blair's departure; but the practice of announcing novelties as decided government policy still has the practical effect of making the subsequent process of consultation a meaningless charade. No doubt it makes life easier for a Prime Minister if he can just turn to his chosen advisers on the sofa for guidance.Footnote 12 And, since his party commands a majority in the Commons, it must be an irritation to have to bother about consultation, precedents, or even Parliament. But there is reason to doubt whether the presidential model is working well even in terms of managerial efficiency, since it places a heavy emotional and physical strain on the Prime Minister if he is to be responsible for every detail in person while trying to appear infallible in public.Footnote 13 There is now widespread dissatisfaction with the growing phalanx of special advisers and policy units, and the replacement of old-style Civil Service mandarins with managers appointed not to advise impartially but to deliver at all costs. There is also growing popular despair at the processes of government. This can be associated with the emergence of a political class, disconnected from the rest of society, and with no experience of other ways of life, which is motivated principally by the pursuit of power and the perquisites of power.Footnote 14 When members of this class find themselves in government, they assume a strident and unmerited self-confidence about their natural superiority to other institutions and professions and their mission to control them. Not the least troubling manifestation of this trend is the seeming indifference to independent legal advice, an observable consequence of which has been regular confrontation with the courts.Footnote 15 Another is the indifference to truth: it has been very harmful to popular confidence in Government that the public has been routinely misled or kept in the dark about important facts. Freedom of information is a worthwhile objective so long as the information is correct and reliable, and so long as it does not drive real decision-making into informal privacy or encourage disinformation. It is a sad reflection that the Government which prides itself on the Freedom of Information Act has done as much harm as good by developing the culture of ‘spin’ and reducing the role of the Cabinet.

A different problem is that ministers have come to evaluate their performance by legislative hyperactivity rather than effective results. Success is measured in terms of news headlines, most easily captured by announcing something ostensibly new: new targets, new directives, new quangos, new regulations and new statutes. There are around 15,000 pages of new legislation every year, and the Labour Government is famously credited with the creation of some 3,000 new criminal offences. The steady increase in volume has resulted in a corresponding deterioration in the quality of legislation. It is now standard practice to lay bills before Parliament that are little better than outline plans, to be somehow refined as they are pushed through, or (all too often) after they have been passed. Often the main provisions are tucked away in schedules rather than in the body of the statute, rendering them almost unintelligible. In their rush to notch up their contributions to the statute book, ministers jostle each other for time in the Commons. Why, we might ask, in the Constitutional Reform and Governance Bill, is the Civil Service dealt with in the same measure as bits of the royal prerogative, public order and amendments to the system for appointing judges? Apparently the Government could not spare sufficient parliamentary time to take them separately. That time is allocated by the Government, whose stranglehold over Commons business is routinely used to stifle proper debate upon the torrent of legislation that it generates. There has also been a worrying increase in the fast-tracking of legislation so as to preclude scrutiny almost completely,Footnote 16 and in the introduction of substantial late amendments to ill-prepared bills, which has the same effect.Footnote 17 It is particularly troubling when this careless, helter-skelter approach to lawmaking does not spare even constitutional changes.

And this brings us to the far greater problem, that we have no proper mechanism for constitutional change. The Secretary of State for Justice, Mr Jack Straw, said in a lecture in February 2008 that the constitution exists in hearts and minds and habits.Footnote 18 It would have been more accurate to use the past tense. But what he did not say, of course, is that it cannot be appropriate for the settled assumptions, which have worked for so long by consent, to be changed unilaterally by the Government, whose power they are designed to limit, particularly by the very Government responsible for some of the most serious challenges to the rule of law in recent history. Even among supporters of the Government, there seems to be no fear that some future administration – perhaps formed by a party reflecting popular frustration with the present political class – might abuse the newly increased powers that it will inherit. Short-termists do not comprehend the notion of bad precedents.

The creation of a Department of Constitutional Affairs on 12 June 2003 was even more shocking than the bungled abolition of the Lord Chancellor. Although it has now been renamed the Ministry of Justice, the original name let the cat out of the bag. Mr Blair had simply commandeered the constitution and put it on a par with immigration, defence procurement or the health service, to be managed on a routine basis as an act of governmental power. That is still the current policy, despite the misleading change of title. In fact, the offence has been compounded by the establishment in June 2009 of a Democratic Renewal Council – a surprising name, since its last recorded use was by a military junta.Footnote 19 The effect was to transfer responsibility for changing the constitution from a ministerial department (which was bad enough) to a secret Cabinet committee. Yet how many people have heard of this arrangement? The press and public seem to have become utterly indifferent to these goings on.

What, then, is the Government up to? There is now some evidence of a Government plan – though it is not the one that the Government has announced. According to its own Green and White Papers, the guiding objective is to ‘rebalance power between Parliament and government’, to give Parliament a greater ability to hold government to account, and to surrender or limit powers that in a democracy should not be exercised exclusively by the executive.Footnote 20 No one would quarrel with that. In fact, it is exactly what we need. But in practice it is not happening. The Bill that resulted from the proposals relates chiefly to war-making and treaty powers, and to the management of the Civil Service. Those are steps in the right direction, but they fall far short of the announced objectives. The treaty provisions are too late to save us from Lisbon. The problem of special advisers is not to be tackled, and the Government has even rejected the advice of Lord Wilson that they should be forbidden to recruit, manage or direct regular civil servants.Footnote 21 As to prerogative powers, it was already unlikely that a government would embark on major armed conflict without some form of parliamentary approval. The Iraq War actually gave rise to a proper seventeenth-century-style debate in the Commons; the problem was misinformation rather than the absence of debate. More significant are the prerogative powers that are still not subject to any scrutiny at all.Footnote 22 A good example is the power to restructure government itself by abolishing ministries and setting up others – something the Government does without any public explanation or costing, let alone discussion.Footnote 23 This power is chiefly used not to increase efficiency but to favour or remove individuals or to secure votes in the Commons – there are now 120 ministers, and 40 per cent of Labour MPs are on the Government payroll. And it is exercised with such dizzying frequency that few ordinary people know what departments are called or what they do.Footnote 24

If we try to discern a guiding strategy from the Government's statements, we might conclude that it was the separation of powers. This is a newfound religion, not much revealed in Government scripture before 2003. But it provided a convenient excuse for the bungled attempt to abolish the office of Lord Chancellor, and it has borne fruit in the removal of the ultimate appellate jurisdiction from the House of Lords to the Supreme Court. Yet, whatever the merits of rehousing the highest court, no one could seriously suppose that this elaborate and expensive gesture – which was not properly plannedFootnote 25 – has the slightest practical effect in relation to the separation of powers. Indeed, the first members of the new court are to retain their peerages, so that the theoretical (though imaginary) conflict of interest will be continued. As a piece of ill-conceived symbolism it is far outweighed by the reality of the less dramatic changes that have placed the courts budget under the control of an ordinary Government department, subject to competition with prisons, the probation service, tribunals, constitutional reform and anything else that might be transferred to it in further reshuffles, a department that will often be appearing as a party before the courts which it runs.Footnote 26 Unconscious of the incongruity, the Government announced that this reform would ‘strengthen further the already strong judicial–executive links’.Footnote 27 We might well conclude that the Supreme Court was an expensive diversionary tactic, drawing attention away from the actual movement in the contrary direction.

Real judicial independence is, of course, crucial; but here also the Government is pulling in the wrong direction. It would have been far better if the final decision on appointments had remained in the hands of an old-style Lord High Chancellor rather than a minister in the centre of the political arena, advised by a body that he appoints himself. The woolly language of section 1 of the Constitutional Reform Act 2005, which commendably purports to preserve judicial independence, does not apply to the appointment process and is not enforceable in the courts. All this matters, because the Government is far from neutral. A thread running through their proposals has been the desire to decrease emphasis on experience and achievement and to increase ‘diversity’. The Constitutional Reform Bill originally sought to give the Government power to redefine ‘merit’ for the purpose of judicial appointments, a proposal Lord Falconer was reluctant to give up. They now want to achieve a similar end by setting targets for the Appointments Commission, perhaps even quotas. This might make sense for lay magistrates; but if superior judges were chosen in order to fill quotas or represent sectional interests not only would it be patronising and insulting to minorities but, more importantly, it would destroy confidence in the judiciary. A superior judgeship is more than a mere job opportunity. If it is seen as a mere job, political appointments will be easier to make. And political appointments will soon be on the agenda. Ministers have indicated in the past a desire to have confirmation hearings, in which politicians can veto candidates; and the impetus for political control of this kind will only increase if judges are given more constitutional powers.Footnote 28

But the chief respect in which the Government does not really believe in a separation of powers is the relationship between the Government and Parliament. As Lord Scarman said in 1989, ‘We have achieved the total union of executive and legislative power which Blackstone foresaw would be productive of tyranny.’Footnote 29 Four years later, the Judicial Committee of the House of Lords actually equated the intention of Government spokesmen in the Commons with the intention of Parliament.Footnote 30 It was a natural mistake, given that Parliament is widely seen as merely applying its rubber-stamp to Government bills. Not that the lack of separation is in itself tyrannical. It has been an accepted feature of our constitution for at least a century that the Government may pass any legislation it wishes, provided it is not too shocking. Unfortunately, the broad principle operates whether or not the legislation is properly thought out, whether or not it rides roughshod over minorities or over long-acknowledged principles such as the rule of law, whether or not it has undesirable side-effects, whether or not there is adequate time for scrutiny or consultation and whether or not it is generally acceptable to the public or even to their elected representatives on the back benches. The inability of the House of Commons to hold the Government to account was actually recognised as a problem in the Governance of Britain White Paper, but not surprisingly the Government has shown little practical interest in finding a remedy.

The principal check is the House of Lords, to which I shall return. The House of Commons is almost completely ineffective. It is sometimes said that a back-bench member of Parliament has fulfilled his main function on the day he is elected, the purpose of the election being to determine the party which will form the Government rather than to impose any check on it once formed.Footnote 31 Some apologists have argued for an invisible effectiveness, in that back-benchers are more inclined to revolt than they were 50 years ago.Footnote 32 That is debatable, since it is known that former administrations took soundings before decisions were made, to avoid the potential embarrassment of open opposition to positions already taken. At any rate, there has been little sign of restraining influence in the constitutional sphere. Strong contrary evidence is provided by the infamous story of clause 11 (later clause 14) of the Asylum and Immigration Bill 2003. This provided that there should be no appeal or judicial review in respect of decisions by the new Asylum and Immigration Tribunal, whether for want of jurisdiction, error of law or breach of natural justice. This clause was opposed by Lord Irvine when Lord Chancellor because it was contrary to the tradition of the rule of law; and some suspect that his removal from office was related to this disagreement. It was the subject of strong attack by Professor Vernon Bogdanor, who said it was a ‘constitutional outrage, and almost unprecedented in peacetime’.Footnote 33 It was attacked publicly by the then Lord Chief Justice, Lord Woolf, in a lecture at Cambridge, after he and ‘other members of the judiciary’ had advised that the clause was ‘fundamentally in conflict with the rule of law’,Footnote 34 and also by another former Lord Chancellor, Lord Mackay, who said it was ‘obnoxious’.Footnote 35 It was condemned by the Constitutional Affairs Committee of the House of Commons as unprecedented; they said it was contrary to constitutional principle to remove judicial oversight of lower tribunals and executive decisions when life and liberty were at stake.Footnote 36 Alarmingly – and this is my point – none of this had any effect. The Bill passed the Commons, after a spirited debate in which no one but a junior minister spoke in favour and 35 Labour MPs voted against. It was only the threat by Lord Irvine himself to speak against it in the House of Lords that forced his successor to back down. I should make it clear that the controversy was not about asylum or immigration policy: it is perfectly legitimate to argue that the policy should be more ferocious, or even made to work, and the vast funds spent on immigration judges diverted to public welfare.Footnote 37 The dispute was about the rule of law.

The immediate outcome was satisfactory; but it was only a temporary respite. There have been several attempts in the last few years to confer arbitrary power on the Government, not only in emergencies but in everyday situations. We have rightly criticised the Bush administration over Guantánamo Bay, and yet the United States Supreme Court – fortified by the kind of English precedents Selden used – was at least able to override the Government and declare habeas corpus inviolate and available to aliens.Footnote 38 It is ironic to reflect that those precedents count for nothing here, since in England it is the convention that common law cannot override a statute.Footnote 39 We now have several Terrorism Acts,Footnote 40 which have caused considerable tension with the rule of law as we know it, and even tougher measures may be in train. Traditional modes of trial are in danger; and the more serious the charge, the lower (some say) should be the standard of proof. But the problems caused by terrorism have at least received a good deal of public and judicial scrutiny, and I will not pursue them now.

Not limited to terrorism, however, was the Civil Contingencies Act 2004, a project modelled on the wartime Defence of the Realm ActsFootnote 41 but of almost unprecedented scope in peacetime.Footnote 42 Among other things, the Bill would have empowered a secretary of state to take emergency powers to do anything that could be done by Act of Parliament, including the requisitioning and destruction of property without compensation, and the prohibition of ‘movement’ and assemblies; to create an offence of failing to comply with his regulations; and to establish an ad hoc criminal tribunal to try offenders. There were several provisions for ministers to ‘disapply’ sections of the Act itself.Footnote 43 Much of this was watered down before it became law – but it was a serious warning of what powers the Government would like to possess. The Government declined a request to insert a sunset clause: emergency is no longer a finite event.Footnote 44 And it declined to exempt legislation of major constitutional importance from the disapplication clause.

I am quite prepared to accept that extreme measures would be needed to cope with, say, a nuclear attack on London. But neither the Bill nor the Act as passed was confined to nuclear attacks, or air raids on the Palace of Westminster. The Act, as passed, applies to any ‘emergency’ – defined as an event or situation that threatens serious damage to human welfare, the environment or national security; and the Government clearly believes that such emergency measures apply to economic emergencies such as bank failures.Footnote 45 It is not confined to terrorist acts but includes any loss of life, illness, homelessness, damage to property or human welfare, and disruption of communications and transport. As if this definition was not wide enough, the Bill would have enabled a minister to extend it – that is, extend the scope of the statute itself – by statutory instrument.

It has become fashionable to speak of clauses such as the power-to-rewrite clause in the 2004 Bill as Henry VIII clauses, though in fact they have little or nothing to do with the Tudor period.Footnote 46 The first example of a Henry VIII clause occurs in the Local Government Act 1888,Footnote 47 and such clauses were still sufficiently uncommon in 1929 to provoke the then Lord Chief Justice to warn of the New Despotism which they threatened.Footnote 48 It is only in very recent times that they have been widened to empower ministers to rewrite parliamentary legislation as they think fit.

A disturbing example occurred in 2006, when the Government attempted in the Legislative and Regulatory Reform Bill to sideline Parliament quite independently of any ‘emergency’. The Government sought to give its ministers the power to amend, repeal or replace any Act of Parliament simply by making an Order.Footnote 49 This was said to be potentially helpful in reducing red tape. That sounded wonderful: we all want to reduce red tape. The press and the Opposition were taken in and did not notice the small print, and the Government almost got away with it. The sheer enormity of the proposition was drawn to public attention by a letter written to The Times on 16 February 2006 by six Cambridge law professors.Footnote 50 Some of its defenders thought the offending clause was just a result of over-zealous draftsmanship, that it really was primarily intended to reduce red tape. It was nothing of the kind. If it had been, the Government would have accepted amendments. Instead, they fought hard to defend the indefensible and even refused to insert safeguards for fundamental liberties. The letter-writers had the honour of being denounced by Lord Lipsey in the House of Lords as six silly professors who were not living in the real world.Footnote 51 Yet this was not even a Henry VIII clause, as understood in 1929; it was more like the Enabling Law of 1933. The House of Lords Constitution Committee woke up to what was happening, and said that the Bill would markedly alter the respective roles of Minister and Parliament.Footnote 52 Even then, the Government was minded to push ahead, offering the assurance that it would not abuse the new power. That, of course, is the moment to worry – when a Government says, ‘Trust us, we don't need a constitution any more: we are so righteous that we will never do anything wrong.’ That was exactly how the Enabling Law was presented to the Reichstag on 23 March 1933: ‘The Government will use these powers only in so far as they are essential for carrying out vitally necessary measures. The number of cases in which a necessity exists for having recourse to such a law is very limited.’Footnote 53 I do not suggest that constitutions can prevent tyranny; they can, however, facilitate it.Footnote 54

In 2006, fortunately, we were saved – saved by the threat that the House of Lords would scupper the Bill. Notably it was the Lords and not the Commons that served to protect Parliament. And that, I suppose, was another nail in their coffin. The underlying lesson was not absorbed in the corridors of power, and things have not changed under Mr Brown and Mr Straw. For example, clause 55 of the present Constitutional Reform and Governance BillFootnote 55 provides that a Minister may by statutory instrument make any provision that he or she considers appropriate in consequence of the Act, and that such an Order may ‘amend, repeal or revoke any provision made by or under an Act’ – that is, any other Act. So Ministers now seek the power even to rewrite constitutional statutes. These clauses are now installed in Government computers, and they are given a little stretch each time they are dropped into place.Footnote 56 There are also more concealed varieties, such as that under which the Home Secretary recently sought to confer sweeping new powers on local authorities under the Proceeds of Crime Act.Footnote 57 At best, these clauses acknowledge that statutes prepared with haste need constant rewriting; but it is a high price to pay for sloppiness, since it prevents proper scrutiny and avoids professional draftsmanship.Footnote 58 Even where powers are subjected to the affirmative resolution procedure, there is no possibility of amendment and the time for debate is minimal. Nor is the availability of judicial review a satisfactory solution,Footnote 59 since only those who can afford litigation in the High Court will be able to find out which Orders are valid and which not. At any rate, we now know what the Government means by ‘rebalancing power’ between the executive and Parliament. There is enough similar-fact evidence to prove a deliberate programme of shifting power towards the executive.

Some of these problems have no legal solution under our present constitution. They were avoided in the past by those conventions that existed in hearts and minds and habits. Since these no longer count for anything, we have all been reflecting on the desirability of a written constitution. The Government is against this, so there has been another diversionary tactic in the form of proposals for a new Bill of Rights, announced in a press leak in March 2009. The first proposal concerned a range of ‘civil and political rights’, few if any of which are inherently controversial. But the effect of putting them into a new statute would be to create a parallel and possibly conflicting human-rights regime with no obvious purpose – unless, of course, the United Kingdom can be somehow disconnected from Luxembourg. It is then proposed to insert ‘Responsibilities’ as well; but, since these are already part of the law, their inclusion in a separate document, in different language, has no obvious constitutional significance and could only cause legal confusion.Footnote 60 More than confusion is threatened by threats to add a new range of ‘economic and social rights’. These are found in some other constitutions, but they are not so much legal rights as political aspirations. Fundamental rights are those which no government can lawfully take away. These new ‘rights’ are not yet in existence but are goals that the Government hopes to reach some day, when it can afford to. Now, there is no harm in announcing political goals, especially when they are essentially laudable; but it has nothing to do with constitutional change. It belongs to the same category of law reform as the Fiscal Responsibility Bill, which would halve the national deficit by legislative magic,Footnote 61 just as one might reduce the crime rate by abolishing crimes. Misusing the language of rights, however, is potentially dangerous nonsense on stilts on skates. Even though the rights would not be directly justiciable, judges would be able to take account of them in assessing ‘the reasonableness of the measures taken to achieve their progressive realisation’.Footnote 62 This would introduce a new kind of law, empowering the judges to exercise an essentially non-legal function of unknown scope. If they are to be given such a broad role, then it needs much more public debate. It ought not to slip into being unnoticed beneath the cloak of vague aspirational rights to which, as abstract propositions, most people would happily subscribe.

The principal question is not whether we should have another Bill of Rights, let alone a Bill of Hopes and Duties, but whether we should have a true written constitution with judicial review of legislation to ensure compliance. It is perhaps a purely academic question in Britain, since no government is likely to agree to confer such a power on judges, and the present Prime Minister has ruled it out as undemocratic.Footnote 63 But there is another way in which it could happen. Lord Millett argued on the wireless in April 2004 that introducing a separation of powers would inevitably, if unintentionally, hasten the end of parliamentary sovereignty; and similar ideas have been mooted by other senior judges.Footnote 64 If the Government can abandon the conventions of an unwritten constitution, so (in a suitable case) might the judges. Sovereignty of Parliament, it is argued, is no more than a convention. And did not judicial review in the United States of America come about through judicial decision?Footnote 65 That could be the next stage in our creeping revolution, 400 years after Dr Bonham's Case.Footnote 66 But it would be a desperate and unwelcome last resort rather than a satisfactory solution, since the judges would be enforcing an unwritten constitution of uncertain scope.

Until the last few years, I was myself wholly averse to the idea of a written constitution, with a supreme court having the power of judicial review, because it would turn unelected judges into legislators. Written constitutions have a mythical quality about them, and it is surprising how many people assume they are much clearer than unwritten constitutions. In practice, the function of a written constitution is not so much to improve the clarity of the rules as to empower the highest court to strike down legislation according to its interpretation of the wording. The question is therefore whether the time has come to transfer more power to the judges, on the footing that the political constitution has broken down beyond repair. This is far from straightforward, since we cannot assume that the traditional juristic standards of the judiciary will be maintained once they have a political role. The problem is not merely that judges are unelected – and introducing elected judges is not a recommended solution to that problem – but that the judicial role is different from that of the policy-maker responsible for raising and spending revenue. The case for increasing the power of the judges is that they have tenure, which gives them independence, and that they are trained to pick apart arguments in an informed and dispassionate way. But courts are not best suited to decide on the allocation of finite public resources, especially in the context of disputes inter partes in which other claims on those resources are not represented. Judges think in absolute terms, they are not apprised of the whole economic picture, and they are not politically answerable for the consequences of their decisions.Footnote 67

Despite these misgivings, we have to face the question, now that our unwritten constitution has been unravelled, whether judicial review might not be the lesser of two evils. We would not have to follow the American model, on which no-one is very keen. There is much to be said for a weaker model, such as the Canadian, under which the highest court can annul legislation but subject to a power (little or never used in reality) for the legislature to reinstate it non obstante for a limited period. We have an even weaker model ourselves under the Human Rights Act, under which the judges can declare legislation incompatible with the code without invalidating it. I would suggest that the key to any acceptable model is that it ought not to empower or allow judges to second guess the legislature on issues of policy requiring taxation or coercion. Judicial review of legislation should ideally operate more like judicial review of administrative action: that is, it should enquire whether the legislature has acted consistently and fairly, has taken proper account of relevant factors and has not taken improper account of irrelevant factors; but it should not substitute the judges' decision on the merits for that of the decision-maker. Nowadays there is a wide perception, right or wrong, that the courts are inclined to overuse their powers under the Human Rights Act and to take the political decisions themselves. That has been a major failing of the Court of Justice in Strasbourg, and there is no guarantee that our new Supreme Court will not be tempted to move further in the same direction. We therefore need more reflection on how to define the proper judicial function, how to draw the line between fundamental law and politics. It is far from easy or obvious. To whom, for instance, does it belong to define life and death, or marriage or a person's gender? A constitutional ‘right to life’ might seem to empower judges to decide when life begins and ends. But, if in a plural society we no longer defer to Christian canon law, it ceases to be clear whether such a question is soluble purely by legal reasoning. The same is true of many other issues seen as fundamental. We should therefore think very carefully before rushing ahead with a codified written constitution. Without first achieving some kind of consensus on the range of matters on which we would be content for judges to override Parliament, perhaps against the wishes of most of our fellow citizens, it would be premature to lock ourselves into a system of judicial review.

It may in any case be questioned whether a written constitution is the best way in practice to solve the kind of constitutional problems that I have outlined. Human rights are comparatively easy. We already have a written code of human rights, though it is not entrenched and already there are moves to amend it. Some think it is better that way. Fundamental laws are admirable in the abstract. The problem with them is that when codified they become absolutes, and absolute law without exceptions for common sense, equity, local conditions or changed circumstances is often bad law. We have learned that from the Strasbourg experience. Fundamental rights should be kept to a minimum rather than constantly enlarged, and should be open to reinterpretation. The principal case for entrenching them, or some of them, is that it might make it possible for the Supreme Court to reject European legislation that contravened British principles of justice.Footnote 68 Universal human rights were, of course, invented in England,Footnote 69 but they mean different things to different people, and it would not be easy to entrench other English common-law rights, which the European powers would take away, without unduly hampering future parliaments from making minor adjustments.Footnote 70

Enshrining the structure and mechanics of government in a written document would raise problems of a different kind. It would be virtually impossible to codify all the present conventions of the British constitution, especially those that relate to political parties, or the Cabinet, even if it could be decided which of them still exist.Footnote 71 This is partly because they operate more like equity, or fictions, than rules of law. For instance, the mind boggles at any attempt to codify the present procedures for producing a Prime Minister, covering every eventuality. Footnote 72 Entrenched legislation could perhaps tackle some of the specific problems I have mentioned.Footnote 73 But to that end there would be no necessity to set the whole constitution in stone, an exercise which might result in too much rigidity and prolixity. A line would have to be drawn between form and substance: would the electoral system, for instance, or the size of the two Houses of Parliament, have to be enshrined in the constitution?Footnote 74 And there might have to be different degrees of entrenchment for different levels of constitutional provision, so that special procedures of different kinds would have to be followed for changing them. In choosing between models, we are brought back to the absence of any proper machinery for going about it. It certainly cannot safely be left to the Democratic Renewal Council.

A better place to start a true constitutional renewal would be the House of Commons itself, since prevention is better than cure. This is now widely accepted by everyone except the Government,Footnote 75 which has repeatedly shelved the issue. The use of Select Committees has proved one of the most fruitful reforms of the last 30 years, and it is a shame that the wisdom produced by the committees is so difficult for outsiders to access. Their proper role is not to challenge or seek to change policy, but to scrutinise, warn and criticise. In performing those vital roles they need to be given more clout, with chairmen elected by secret ballot and with independence from the whips; and perhaps we can learn from Scotland, where they are said to be more effective. Another desirable change that seems to be generally agreed is that the Government should lose its absolute control over the management of business in the Commons.Footnote 76 The Commons ought also to take back its audit functions, by discussing estimates and controlling supply. Some way of capping the volume of legislation is desperately needed, helped perhaps by a more liberal use of the ‘sunset clause’Footnote 77 – a true Henry VIII clause, much used in his time – or by requiring a periodic review of the effectiveness of new measures.Footnote 78 None of this forms part of the Government's ‘renewal’ policy; but it is much to be hoped that the present atmosphere of popular disillusionment with the functioning of Parliament will force some improvement in the near future.

For the present, the most effective check on legislation is the House of Lords – effective because its members have tenure and are free to ignore the party whip. Although Labour peers now constitute the largest party in the House, peers have on several hundred occasions in the past decade followed their consciences, or their good sense, to thwart the Labour Government in a way that members of the Commons would consider politically or financially risky. There is therefore a true separation of powers here, even if the powers were severely reduced in 1911. By a curious reversal of history, the House of Lords has become the principal defender of constitutional liberties, and arguably the more significant legislative chamber, albeit at the cost of endangering its own existence. Having been made more politically correct by the removal of most of the hereditary element in 1999, it has gained confidence; but the sorry consequence is that, in Government thinking, it must be made less politically effective. The future of the Lords is, in my submission, the paramount constitutional concern today. Without an effective, independent upper chamber, the entire High Court of Parliament is in danger of becoming fossilised, a magnificent heritage site with no function.

On 7 March 2007 the Commons voted to ignore the conclusions of the Royal Commission of 2000 on the House of Lords and press for an elected (or at least 80 per cent elected) house of senators, composed chiefly of full-time politicians with limited tenure; a few days later the Lords voted (by 361 to 121) in favour of a 100 per cent appointed chamber. Mr Straw subsequently announced his determination to push through the wishes of the Commons, apparently in the (seriously mistaken) belief that this is the course required in a democracy.Footnote 79 Even if such a course is not actually illegal,Footnote 80 this is another disturbing example of the Government's inability or unwillingness to understand what a constitution is for. How can it be the business of the Commons to tamper with the only effective control on their power? It would never happen in a country with a written constitution – that is, most other countries – but, alas, our constitution provides no specific guidance to those who choose to distort it.

The merits were fully considered by the Royal Commission ten years ago and seemed then to fall on the side of an appointed or largely appointed House. Those of us outside the political class can see that popular elections for the entire House of Lords, even if not tied to general elections for the Commons, are likely to give both houses a similar political constitution and almost certain to make the Lords a clone of the Commons in a more insidious way.Footnote 81 The conditions of appointment would only attract those who are already politicians – many of whom would doubtless find a salaried seat in the Lords more congenial than the tedious constituency work that now falls to a member of the lower house. The important element of membership with experience of the real world would be squeezed out,Footnote 82 as would the present social diversity of peers. The House would be enslaved by party politics and its valuable function of taking the wider view endangered. Why is this thought necessary or desirable? There is no democratic reason why all the Lords should be elected. Granted that an elected government is entitled to have its policies passed into legislation, it does not follow that the product should be rough or unworkable or unconstitutional; and it is in everyone's interest that problems be ironed out before a bill is passed rather than pursued in the courts afterwards. Unquestionably, there are grave objections to the present process of nomination to the Lords, which has all too often been used to ennoble second-rate or unseated politicians: the kind of people who might pay for peerages or take cash for questions, or even a Speaker who has been effectively ejected from office. Setting up an independent appointments commission would not be without difficulty,Footnote 83 though there is an informal model already in place; whatever the difficulties, any sensible system of appointment would seem preferable to general election.Footnote 84

I have only been able to touch on a few of the myriad questions that have been stirred by the constitutional turmoil in the years leading up to this lecture. But a general observation I should like to underline is that they are interrelated. Most important of all, the question whether we need a written constitution, and more power vested in judges, is directly and necessarily connected with what happens to the House of Lords and the political constitution.Footnote 85 There is little indication in the Government's approach of any coherent strategic vision, and perhaps that is an inevitable consequence of our constitutional arrangements. Yet much of the recent activity seems to have been a result of short-term expediency: abolish the office of Lord Chancellor as a clever way of removing Lord Irvine, weaken and politicise the House of Lords because it has proved vexatious, scatter ‘power to change law’ clauses in bills to save the bother of careful draftsmanship. Typical of this approach was the Parliamentary Standards Bill, rushed through Parliament in July 2009 to appease journalists on the expenses front, with no awareness of the wider constitutional implications, which were only pointed out in the nick of time.Footnote 86

If there is to be constitutional reform, there ought to be some new mechanism, independent of Government, and of the House of Commons, to consider it as a connected whole. The House of Commons Justice Committee, in its report of 21 July 2009, proposed a constitutional convention;Footnote 87 and that might well be the best solution, however problematic its own constitution and authority might be.Footnote 88 But it should not be expected to deliver results within a short timetable.Footnote 89 The mad rush over recent years has proved to be the wrong approach.Footnote 90 Constitutions must rest on a broad consensus, and we are some way from having any kind of consensus as to what is required. No independent convention will reach agreement at its first meetings. Indeed, it might be advisable to begin with a Royal Commission to prepare the ground and frame the questions.Footnote 91 A convention should also resist the temptation to redesign the constitution from scratch, in minute detail. Since the reality is that whatever is proposed would need Government support, the effect would be to offer dozens of proposals from which ministers could choose the easy ones while shelving the important ones. And it should be borne in mind that unduly radical changes would divide moderate opinion so as to prevent acceptance. The best way ahead is to seek a broad consensus on the big questions.

In connection with consensus, I would end with the observation that no sensible progress can be made without a greater public awareness of constitutional matters and involvement in the debate.Footnote 92 The hearts and minds must be re-engaged. Politicians no doubt suspect that there is not much doorstep interest in questions that may seem abstract or academic, and no political profit to be gained from pursuing them.Footnote 93 Mr Blair famously tried to put down Mr Hague in the House of Commons in 2000 by saying: ‘I don't know whether people in his pubs and clubs are talking about pre-legislative scrutiny, but they are not in mine. These are good issues for academics and constitutional experts, but they are not the big issues that Parliament should debate.’Footnote 94 This absence of basic awareness has suited the Government well and has been reflected in the press, which – despite the acuity of many individual journalists – feeds the public appetite for personal scandals and no longer seriously reports parliamentary debates, let alone Select Committee reports. When a Lord Chancellor's wallpaper can attract as much media attention as the abolition of his office, it is hardly surprising that the sordid but titillating business of outrageous expenses claims should fill more column inches than the far more important constitutional questions currently hanging over us. Yet busy citizens, such as lawyers, have no time to delve into the recesses of the Internet on a regular basis to find out what is going on, and so the response to White Papers has been quantitatively thin. It is not that intelligent people are not interested; I have found from giving public lectures on the subject that there is actually great interest and concern among lawyers and the lay public alike. But most people simply do not know enough, in detail, about what is happening, and it is all happening too fast. The lack of awareness is also the fault of our educational system. What can the long struggle between the Crown and the Commons, the Petition of Right, habeas corpus, and all those things that were in the bloodstream of Selden's contemporaries, mean to a generation that has studied no history before 1914 or to lawyers who have studied no constitutional history before 1972?

It may be too late to reverse the present revolution, which has happened so fast that we have all been left gawping. Optimists may be pleased by that; there are always those who enjoy seeing inveterate institutions ‘shaken up’ and who prefer rapid change (whatever it is) to slow evolution. Some of the reforms have indeed been desirable. My own chief concern is not with change as such, but with the dismal reflection that we no longer have a constitution – in the sense of a set of conventions and practices that define the bounds of executive power and keep the government within those bounds, conventions and practices that – though unwritten and flexible – can be abandoned only by general consensus and after careful thought. The consensus of the last century or more has ended, and the Government has stormed into the void, constantly tinkering with constitutional arrangements as a routine exercise of power and without much regard to the consequences. I expect some people will think me a silly professor, an alarmist, to voice such a complaint.Footnote 95 Life still goes on more or less as normal. We are still free to air our views in public, and we do not have friends who have been incarcerated for expressing their opinions (as Selden was), let alone eliminated. But constitutional slippage is highly dangerous; for when power is allowed to become unlimited and unbalanced, the lessons of history are, I would suggest, alarming.

References

1 The text of this article was first delivered as the British Academy's Maccabbaean Lecture in 2009 and was originally published in (2011) 167 Proceedings of the British Academy. It is reproduced here with permission.

2 Professor Baker's erudite series of pen portraits of leading canon lawyers enhanced early issues of the Ecclesiastical Law Journal and were later reproduced in a lavishly illustrated volume, Baker, J, Monuments of Endlesse Labours (Woodbridge, 1997)Google Scholar. This issue sees the first of Professor Richard Helmholz's companion series ‘Notable Ecclesiastical Lawyers’, featuring Roger, Bishop of Worcester: (2013) 15 Ecc LJ 75–80.

3 I have received many helpful comments on the lecture, most of which have been taken into account in revising it for publication, and I am grateful to all who have taken the trouble to help me. I must thank in particular Dr MC Elliott and Professor GW Jones for their many insights.

4 Since the lecture was given, the circumstances have been the subject of investigation by the Constitution Committee of the House of Lords: House of Lords Select Committee on the Constitution, The Cabinet Office and the Centre of Government, 4th Report of Session 2009–10 (HL 30), published in January 2010, at paras 188–217. It was perfectly obvious at the time that the decision had been taken without professional advice or proper circumspection: see, eg, Woolf, Lord, ‘The rule of law and a change in the constitution’, (2004) 63 Cambridge Law Journal 320CrossRefGoogle Scholar. The Cabinet Office declined to produce the papers but claimed that it had given advice and (by implication) that the Prime Minister had ignored it. Mr Blair admitted in evidence to the Committee that he had taken the decision on the spur of the moment and that the process was faulty (paras 201–202). The Committee concluded (para 214) that ‘the Cabinet Office was unable to ensure compliance with proper constitutional norms in the adoption of a change of such significance. It is particularly disturbing that these failures occurred without there being any external crisis which might explain, far less justify, such failures.’

5 For the broader picture see Bogdanor, V, The New British Constitution (Oxford, 2009)Google Scholar; and for the pre-2004 reforms see L Dingle and B Miller, ‘United Kingdom constitutional reform’ (2004), <http://www.llrx.com/features/ukconstitution.htm>, accessed 3 October 2012. The Human Rights Act 1998 is also a landmark, though in a different way. Britain was bound by the European Convention on Human Rights long before 1998 and that regime still takes priority. The Luxembourg Court, indeed, regards domestic declarations of incompatibility under the Act as legally ineffective. The Act has nevertheless begun to alter the judicial culture in Britain and may have paved the way for judicial review of legislation at some time in the future.

7 The present administration [ie the Labour Government of 1997–2010] has achieved a particular reputation for pursuing hidden policies that differ markedly from those announced in public. The most recent example to be uncovered is the policy of unrestricted mass immigration, which was revealed by a former Government adviser at the end of October 2009: see the article by M Marrin, The Sunday Times, 1 November 2009, p 20.

8 This was a matter of comment before 2004: see, eg, the prophetic assessment by Oliver, D, Constitutional Reform in the United Kingdom (Oxford, 2003), pp 390391Google Scholar.

9 See Allen, G, The Last Prime Minister: being honest about the UK presidency (second edition, Thorverton, 2003), p 3Google Scholar: ‘The UK Presidency remains unchecked, and it has shown no willingness to seek partnership with the legislature, or the wider nation, even when such a partnership would clearly assist its objectives.’

10 Parliament Act 1911, 1 & 2 Geo V, c 13, s 2(1); Jackson v Attorney-General [2006] 1 AC 262.

11 ‘Elective Dictatorship’, Richard Dimbleby Lecture, published in The Listener, 21 October 1976, pp 496–500. He was, however, more concerned at the use of this ‘dictatorship’ by governments with a small majority than by those with a large one.

12 Mr Blair's style of government is now known as ‘sofa government’, a term popularised by the report of the Butler Inquiry. Mr Straw has distanced himself from ‘so-called sofa government’: Hansard, 24 February 2009, col 160.

13 This is no new observation. Charles Greville attributed the failure of Wellington's administration in 1830 to the fact that having chosen ‘with a very slender stock of knowledge to take upon himself the sole direction of every department of Government, he completely sank under the burden’: Greville, C, The Greville Memoirs, ed Reeve, H (Cambridge, 2011), p 83Google Scholar. Sir Robert Peel also tried to cover all departments and suffered a breakdown. Cf Allen, The Last Prime Minister, p 7: ‘Exhaustion, defeat, humiliation are the only possible endings to a political career in a unitary system.’

14 See the perceptive and disturbing study by Oborne, P, The Triumph of the Political Class (London, 2003)Google Scholar.

15 See Sir Stephen Sedley's comments in Lord Nolan and Sedley, S, The Making and Remaking of the British Constitution (London, 1997), pp 2223Google Scholar.

16 See the valuable report and warnings from the House of Lords Select Committee on the Constitution, Fast-track Legislation: constitutional implications and safeguards, vol 1, 15th Report of Session 2008–9 (HL 116-I). There have been perhaps as many as 500 instances in the last 20 years: ibid, para 21. The usual pretext is that the Government wishes to be seen to be acting speedily in response to recent crises, such as threats from terrorists, pit-bull terriers (the Dangerous Dogs Act 1991) or troublesome judges. The consequence is not merely a lack of time for debate in Parliament, but the lack of scrutiny by Select Committees and the prevention of comment by interested parties outside Parliament.

17 House of Lords Select Committee on the Constitution, Fast-track Legislation, paras 98–106.

18 J Straw, ‘Modernising the Magna Carta’, lecture at George Washington University, 13 February 2008, <http://www.labour.org.uk/modernising_the_magna_carta>, accessed 9 October 2012.

19 The Prime Minister announced in the House of Commons on 10 June that it had held its first meeting the previous day. The Minister of Justice stated shortly afterwards that he was still taking the lead: House of Commons Justice Committee, 11th Report, Session 2008–9 (HC 923), Evidence, q 2. (The Thai military junta in 2006 called itself the Council for Democratic Reform.)

20 Ministry of Justice, The Governance of Britain (July 2007), Cm 7170; The Governance of Britain: Constitutional Renewal (March 2008), Cm 7342. Rather oddly, the first item addressed in the White Paper is the control of public protest near Parliament.

21 Joint Committee on the Constitutional Renewal Bill, 31 July 2008, Report, para 294. Clause 8 of the Bill requires the Minister for the Civil Service to publish a special advisers' code, but by clause 7(5) it need not require special advisers to carry out their activities with objectivity or impartiality.

22 It has been suggested that all prerogative powers should be abolished: see, eg, Tomkins, A, Our Republican Constitution (Oxford, 2005), p 134Google Scholar. Forty years ago, Diplock LJ remarked that they were a continuing residue of absolute power: R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 QB 864 at 886.

23 This prerogative is not among those which the Government listed for consideration in Governance of Britain.

24 Besides the Lord Chancellor's Department, remodelled as the Department for Constitutional Affairs (2003) and then the Ministry of Justice (2007), we might instance the Department of Trade and Industry (1970), which after various splits and mergers became the Department of Business Enterprise and Regulatory Reform (2007) and then the Department of Business, Innovation and Skills (2009) after merging with the Department of Innovation, Universities and Skills (2007). Education seems recently to have disappeared by that name.

25 Lord Neuberger MR said on Radio 4 on 7 September 2009 that it was settled over a glass of whisky and that no thought had been given to the possible constitutional consequences. The presenter of the programme, Joshua Rozenberg, estimated the cost to be at least £80 million. It is true that there was a consultation paper, Constitutional Reform: a Supreme Court for the United Kingdom (July 2003), CP 11/03, but the ‘consultation’ followed rather than preceded the Government's decision, and views were not sought on whether such a court was necessary or desirable.

26 It is an open secret that, for this reason, the reform was strongly opposed by the senior judiciary. At the Lord Mayor's dinner to the judges in July 2009, the Lord Chief Justice complained that the decision was announced informally by a minister writing in a Sunday newspaper.

27 Announcement on the Cabinet Office website. Cf Woolf, ‘Rule of law’, p 323, who made the further point (in relation to the Department of Constitutional Affairs) that ‘the Department could give directions to the Court Service staff which result in the courts becoming a tool of Government policy’.

28 On the potential politicisation of the judiciary, see Bogdanor, New British Constitution, pp 65–68. Professor Bogdanor concluded, rather optimistically, that the appointments procedure has been isolated from political interference. In his view, this would make it safe for judges to become more answerable to Parliament and Select Committees with respect to their general approach: ibid, pp 85–86.

29 Scarman, Lord, ‘The Shape of Things to Come’: the shape and future law and constitution of the United Kingdom (Warwick, 1989), p 12Google Scholar. See Blackstone, W, Commentaries on the Laws of England, vol 1 (Oxford, 1765), p 142Google Scholar: ‘In all tyrannical governments the supreme magistracy, or the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty. The magistrate [legislator later editions] may enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed … with all the power which he as legislator thinks proper to give himself. But, where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power, as may tend to the subversion of its own independence, and therewith of the liberty of the subject’. Cf ibid, 51, 154, on the same theme.

30 Pepper v Hart [1993] AC 593; see Baker, J, ‘Statutory interpretation and parliamentary intention’, (1993) 52 Cambridge Law Journal 353357CrossRefGoogle Scholar. It was dissented from by the serving Lord Chancellor, Lord Mackay of Clashfern, albeit on pragmatic rather than constitutional grounds. There is now reason to hope that the aberration will not be followed: Kavanagh, A, ‘Pepper v. Hart and matters of constitutional principle’, (2005) 121 Law Quarterly Review 98122Google Scholar.

31 This is particularly true of back-benchers on the Government side. It is widely rumoured that Mr Blair, emboldened by a large majority, once ordered Labour members to spend less time in the Commons, where their presence was not needed, and devote their time to spreading the Government word out in the country.

32 Professor Bogdanor has gone so far as to say that we should no longer speak of an elective dictatorship: New British Constitution, pp 288–289.

33 The Guardian, 11 February 2004.

34 The Independent, 4 March 2004; Woolf, ‘Rule of law’, p 327 (adding: ‘and should not be contemplated by any government if it had any respect for the rule of law’).

35 The Times, 27 February 2004.

36 House of Commons Constitutional Affairs Committee, 2nd Report, Session 2003–4.

37 It is not clear now what the true Government policy has been: see above, n 7.

38 Rasul v Bush, 542 US 466 (2004). An amicus curiae brief was submitted by legal historians. A similar brief was submitted in Boumediene v Bush, 476 F 3d 981 (2008), in which the Supreme Court made only a passing reference to history.

39 According to some commentators, the Anti-terrorism Act of 2001 was the first time since the seventeenth century that habeas corpus had been withdrawn. That is not quite right, since it happened for brief periods in 1745, 1791 and 1817; but it is still a rare event.

40 For the passage of the Anti-terrorism, Crime and Security Act 2001 (passed in the wake of 9/11) and the incidental derogation from the Human Rights legislation – the United Kingdom being the only country in Europe to think this necessary – see Tomkins, A, ‘Legislating against terror: the Anti-terrorism, Crime and Security Act 2001’, (2002) Public Law 205220Google Scholar; A v Home Secretary [2005] 2 AC 68 (Belmarsh Prison case).

41 An exception was the Emergency Powers Act 1920, 10 & 11 Geo V, c 55. This was passed during the miners' strike of October 1920, reviving some of the temporary powers that had been introduced during the Great War. The powers were not invoked until the miners were locked out in March 1921 for refusing to accept cuts in pay; the situation then was considered so grave that troops were placed on alert, and steps were taken to raise a national volunteer force (numbering some 70,000 when it was stood down in April). The original typed warrant dated 31 March 1921 for the proclamation declaring the state of emergency, with the sign manual of King George V, is in the writer's collection (MS 336).

42 Perhaps there was more caution even in wartime. It is noteworthy that when in 1940 the Security Executive – worried about communist revolutionaries – proposed a new defence regulation making it an offence to attempt to subvert duly constituted authority, the Permanent Under-Secretary at the Home Office (Sir Alexander Maxwell) advised that: ‘Our tradition is that … every civilian is at liberty to show, if he can, that … the duly constituted authorities are composed of fools and rogues … This doctrine gives, of course, great and indeed dangerous liberty to persons who desire revolution … but the readiness to take this risk is the cardinal distinction between democracy and totalitarianism.’ What is even more remarkable is that the wartime Government accepted his advice: Hinsley, H and Simkins, A, British Intelligence in the Second World War, vol 4 (London, 1990), pp 5758Google Scholar.

43 This euphemism was unknown to the law a generation ago, though it appears in several recent statutes: eg Representation of the People Act 2000, s 11. It may have originated with delegated legislation, on the footing that it is inappropriate for a delegated authority to ‘repeal’ its parent authority. It was used for a similar reason by the Divisional Court in 1989, when it allowed EU law to override a parliamentary statute: R v Secretary of State for Transport, ex parte Factortame [1991] 1 AC 603.

44 It has recently been urged by a House of Lords Select Committee that there should be a presumption in favour of inserting a sunset clause into all legislation passed with unusual haste: House of Lords Select Committee on the Constitution, Fast-track Legislation, para 198.

45 The Landsbanki Freezing Order 2008 (SI No 2668), freezing the assets of the Icelandic Bank, was expressly made under the 2001 Act.

46 According to the Parliament website, the name alludes to the Statute of Proclamations 1539, which gave the king power to legislate by proclamation. This is very misleading. The 1539 statute certainly empowered the king to issue proclamations with the advice of his Council, and enacted that such proclamations should be ‘obeyed, observed, and kept, as though they were made by act of Parliament’. But this raised fears at the time, which were long debated in Parliament, and in the event the Commons were unwilling to change the constitution by giving the king an unbridled unilateral power to legislate. The statute made it clear that it did not authorise proclamations to be made to the prejudice of any person's life, liberty or property, or in breach of any laws or customs currently in force. It was repealed in 1547. See Baker, J, Oxford History of the Laws of England, vol 6 (Oxford, 2003), p 64Google Scholar. The Act concerning Peter-Pence 1533 (25 Hen VIII, c 21) gave the king power to abrogate the Act by letters patent; but the power was limited to that statute, which conferred on the king ecclesiastical powers that he was seen as having the right to decline.

47 Lord Rippon, ‘Henry VIII Clauses’, (1989) 10 Statute Law Review 205–207.

48 Hewart, Lord, The New Despotism (London, 1929)Google Scholar. This led to the report of the Donoughmore Committee, which seems now to be completely ignored.

49 Legislative and Regulatory Reform Bill 2006, cl 2. This was an inordinate extension of the power contained in the Regulatory Reform Act 2001 (c 6), s 1. Among earlier vague but more circumscribed precedents was the Local Government Act 2000 (c 22), s 6, which empowered the Secretary of State to amend, repeal, revoke or disapply any enactment that obstructs local authorities from taking steps to promote the well-being of their communities.

50 There were more signatories, but only six names were published. See also Baker, J, ‘A charter for despots’ (the editor's title), (2006) 10(5) Parliamentary Brief 79Google Scholar; J Spencer, ‘Contempt of Parliament’, ibid, 5–6.

51 Speech of 13 June 2006. It was the same Lord Lipsey of Tooting who wrote approvingly in a book review two years earlier of ‘a new philosophy for Labour capable of turning into reality Blair's dream of eternal power’ (New Statesman, 21 June 2004).

52 ‘Letter from the Chairman to the Lord Chancellor’, 23 January 2006, printed in House of Lords Constitution Committee, 11th Report of Session 2005–6 (HL 194), p 24, appendix I.

53 Baynes, N (ed), The Speeches of Adolf Hitler, vol 1 (London, 1942), pp 246, 420Google Scholar; Bullock, A, Hitler: a study in tyranny (revised edition, London, 1964), p 269Google Scholar. The initial pretext was the Reichstag Fire, presented as an act of terrorism. Six days earlier, the Reichstag Fire Decree had suspended the German equivalent of habeas corpus, curtailed freedom of speech and assembly, and authorised telephone tapping.

54 The Law of 1933 has been described as ‘a vital step towards consolidating [Hitler's] dictatorship’: Kershaw, I, Hitler 1889–1936: hubris (London, 1998), p 468Google Scholar. Hitler took the trouble to have it renewed twice when it expired.

55 The Bill was introduced by Mr Straw in July 2009, overtaking the Constitutional Renewal Bill introduced in March. A similar provision (clause 57) in the earlier Bill was criticised by the Joint Committee on that Bill on 31 July 2008 (HL 166-1), paras 361–362.

56 Clause 75 of the Banking Bill introduced on 7 October 2008 gave the Treasury what is expressly called a ‘Power to change law’, a power by Order to amend any statute or rule of common law ‘for the purpose of enabling the powers under [Part I] of the Act to be used effectively’; and it provided that such an Order might make provision with retrospective effect ‘in so far as the Treasury consider it necessary or desirable for giving effect to the particular exercise of a power under this Act’. The clause was criticised by the Select Committee on the Constitution, because of its retrospective application: House of Lords Constitution Committee, 3rd Report, 21 January 2009 (HL 19); 11th Report, 18 May 2009 (HL 97). The words ‘or desirable’ surpass even the Enabling Law of 1933, which in its terms was limited to necessity. In November 2008, the Government introduced a Planning Bill, clause 118(5) of which would have empowered commissioners to modify or repeal statutes relating to any matter in respect of which they might make an Order. This seems to be the first attempt to confer legislative powers on a body, as opposed to a Minister.

57 This at least caused an outcry in the newspapers: see, eg, The Times, 28 October 2009, pp 2, 18–19. (Again, it was the House of Lords that saved the day: Hansard, 7 December 2009, col 896.)

58 See Oliver, Lord, ‘A judicial view of modern legislation’, (1993) 14 Statute Law Review 3Google Scholar (referring to Henry VIII clauses): ‘It is unfair to the citizen, who is entitled in a democratic society to have the rules by which his life is regulated properly debated and scrutinized by his elected representatives. And, by removing the legislation from the competent hands of the parliamentary draftsmen into those of departmental civil servants, it frequently results in drafting disasters.’

59 The courts are now prepared to review Orders even where the parent statute gives the Minister power in subjective language, eg to act as he or she ‘thinks necessary’. For an early example of this approach see Commissions of Customs and Excise v Cure and Deeley Ltd [1962] 1 QB 340.

60 See Rights and Responsibilities: developing our constitutional framework (March 2009), Cm 7577, which is a Green Paper concerning a Bill of Rights. Mr Straw admitted in the Commons that the proposed responsibilities were already law, but ‘scattered across myriad legal texts’. The answer given to the charge that this renders their declaration purposeless is that, even if they would not be legally enforceable by virtue of their restatement, there would be some psychological value in declaring them in abstract terms: see the debate in the House of Commons, Hansard, 23 March 2009, col 37.

61 The Queen's Speech, 17 November 2009: ‘Legislation will be brought forward to halve the deficit.’ The title of the Bill, which has not yet been published [in 2009], seems to have been borrowed from Nigeria.

62 Parliamentary Committee on Human Rights, A Bill of Rights for the United Kingdom?, 29th Report for the Session 2007–8 (HL 1651-1, HC 150-1), published 10 August 2008.

63 House of Commons Justice Committee (chaired by Sir Alan Beith), 11th Report of Session 2008–9, HC 923, paras 61–62. Likewise Mr Straw: ibid, Evidence, q 62.

64 See the cautious remarks in Jackson v Attorney-General [2006] 1 AC 262 at 302 (Lord Steyn), 318 (Baroness Hale), 323 (Lord Carswell), and 327 (Lord Brown). Lord Steyn hinted (p 302) that ‘strict legalism’ might have to give way in an extreme case to ‘constitutional principle’. There was a suggestion at the time of the ill-fated ouster clause in the Asylum and Immigration Bill, above, that the judges might find a way of striking down such a clause if it became law.

65 Marbury v Madison, 5 US 137 (1803) (the power was used very sparingly in the nineteenth century). The Australian High Court has achieved the same power by judicial decision.

66 Bonham v Atkins et al (1610) 8 Co Rep 107, 114; Baker, J, Introduction to English Legal History (fourth edition, London, 2002), pp 210211Google Scholar.

67 Cf R v Cambridge Health Authority, ex parte B [1995] 1 WLR 898 at 906, per Bingham MR (‘Difficult and agonising judgments have to be made as to how a limited budget is best allocated … That is not a judgment which the court can make’).

68 See A Senior in The Times, 6 November 2009, p 37: ‘Our country is being reborn as a satellite of Europe yet, as the revolution is a bloodless one, it passes without protest. We are alone among the member states in not having a written constitution. This makes us vulnerable to European creep, and the dribbling away of civil liberties’.

69 See Baker, J, ‘Human rights and the rule of law in Renaissance England’, (2004) 2 Northwestern University Journal of International Human Rights 2440Google Scholar; Simpson, A, Human Rights and the End of Empire: Britain and the genesis of the European Convention (Oxford, 2001)Google Scholar.

70 Eg the right to rescind a contract for breach of condition. The proposal by the European Commission to abolish this right (draft Consumer Rights Directive 2008, art 26) has been criticised by the Law Commission and by the European Union Committee of the House of Lords (18th Report, 7 July 2009). It is not, of course, an absolute right, but may be lost by tacit waiver.

71 See Marshall, G, Constitutional Conventions (Oxford, 1984), p 54Google Scholar: ‘It is the fitting in of the exception clauses that makes the drafting of a written constitution for the United Kingdom such a hopeless, Utopian enterprise.’ By 1984, the convention of collective responsibility (for example) seemed completely dead: ibid, pp 55 ff. See now the full discussion in Bogdanor, New British Constitution, pp 221–228.

72 A complete written constitution would therefore require some simplifications – perhaps, for example, providing that a Prime Minister should be recommended to the Queen by a majority vote of the House of Commons. For this and other possible solutions see Institute for Public Policy Research A Written Constitution for the United Kingdom (London, 1991)Google Scholar. This showed that it could not be done succinctly: the draft occupies 126 pages. It is worth remembering, nevertheless, that in the 1950s law professors could write constitutions that seem to have worked for newly independent Commonwealth countries.

73 Eg, a law that no department of state should be created, abolished or merged without an act of Parliament, or that no parliamentary statute should be amended or repealed without some special scrutiny procedure.

74 See Bogdanor, New British Constitution, p 220.

75 See Shifting the Balance: Select Committees and the executive, House of Commons Liaison Committee, 1st Report (2000); Society, Hansard, The Challenge of Parliament: making government accountable (London, 2001)Google Scholar; and, only a few days ago, the welcome first report of the Reform of the House of Commons Select Committee, Rebuilding the House (HC 1117), published 12 November 2009.

76 At present this is guaranteed by Standing Order 14(1) of the House of Commons, which itself cannot be altered without Government co-operation: ‘Save as provided by this order, government business shall have priority at every sitting.’ The Select Committee on Reform of the House of Commons, while acknowledging that the Government is entitled to have its own business considered at a time of its own choosing, has proposed the establishment of a Backbench Business Committee.

77 A provision that a statute will expire on a given date unless steps are taken to renew it. It is important to note that such provisions can only work if there is adequate time and information available for Parliament to debate the renewal when the time comes: see the comments in House of Lords Select Committee on the Constitution, Fast-track Legislation, para 70.

78 For some possible solutions to the growing problem of excessive and ill-prepared legislation, see Post-legislative Scrutiny, Law Com No 302 (2006), Cm 6945. The need for post-legislative scrutiny of all legislation was advocated recently by the House of Lords Select Committee on the Constitution: Fast-track Legislation, para 208.

79 See, eg, the Government's White Paper of 14 July 2008, Cm 7438. The Opposition parties have, most regrettably, failed to provide any opposition to this.

80 It remains to be seen whether the new Supreme Court will agree with the Court of Appeal in Jackson v Attorney General [2005] QB 579 as to the limits of the Parliament Act in the constitutional sphere. Although the House of Lords reversed the Court of Appeal in relation to the Hunting Act, and did not accept a distinction between constitutional and other enactments, several members of the Judicial Committee reserved their position as to whether there might be limits: see above, n 64.

81 See Oliver, Constitutional Reform, 200–201.

82 An extensive survey of other legislatures concluded that ‘None of the overseas second chambers studied here achieve the same reputation for expert membership as the House of Lords’: Russell, M, Reforming the House of Lords: lessons from overseas (Oxford, 2000), p 306CrossRefGoogle Scholar.

83 There are no overseas precedents to guide us: ibid, p 328.

84 See Bogdanor, The New British Constitution, ch 6, where it is assumed that a reformed Lords must have democratic legitimacy conferred by election. Professor Bogdanor nevertheless sets out cogent reasons why an elected Lords would be less effective than the present House. The same premises have led Lord Bingham to suggest that the House of Lords should be abolished, and the function of scrutinising legislation transferred to a Council of State, of similar size to the present House of Lords but without any legislative function: ‘The House of Lords: its future?’, Jan Grodecki Annual Law Lecture, University of Leicester, 22 October 2009, <http://agc-wopac.agc.gov.my/e-docs/Journal/0000017406.pdf>, accessed 9 October 2012.

85 See Oliver, Constitutional Reform, p 384: ‘The political constitution depends heavily upon a culture of self-restraint on the part of constitutional actors. If that culture should disintegrate, then the remaining advantages of the arrangements would disappear and the case for a law-based constitution with more judicialism would become the stronger.’

86 House of Commons Justice Committee, 11th Report of Session 2008–9, paras 38–39. The Lord Chief Justice pointed out in a speech at the Mansion House in July 2009 that introducing judicial review of parliamentary affairs threatened to bring the judiciary into direct conflict with Parliament.

87 Ibid, paras 90–92. See also V Bogdanor, ‘We need a new constitution for Britain’, The Times, 1 June 2009: ‘Important constitutional reform should not be a knee-jerk reaction to crisis, but the result of popular reflection. To be effective, it needs to be a product of popular wishes, not something implemented from on high. All that a government can do is to initiate a debate.’

Ibid

88 This is helpfully discussed in Bogdanor, New British Constitution, pp 228–230.

89 House of Commons Justice Committee, 11th Report, para 88 (pointing out that the Government's present timetable is over-optimistic).

90 Even Mr Straw now admits that ‘Constitutional change should be approached with caution’: Rights and Responsibilities, p 7. He has expressed the view that a written constitution is 20 years away: J Straw, ‘Modernising the Magna Carta’.

91 This is Professor Bogdanor's suggestion: New British Constitution, p 229.

92 See The Governance of Britain Green Paper of 3 July 2007, which Mr Straw announced as ‘the first step in a national conversation’.

93 Bogdanor, New British Constitution, p 6, notes that during the 1997 election campaign the respondents to a poll put constitutional issues lowest among their priorities (14th out of 14). He attributes this, at least in part, to the absence of a written constitution: ibid, p 10. There is certainly far more interest in constitutional issues in the United States.

94 Hansard, 13 July 2000, col 1097.

95 Cf Lord Carswell in Jackson v Attorney-General [2006] 1 AC 262 at 323: ‘An unwritten constitution, even more than a written one, is a living organism and develops with changing times, but it is still a delicate plant and is capable of being damaged by over-rigorous treatment, which may have incalculable results.’

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