In recent years, the UK constitution has been a thriving topic of debate and the organs of government have frequently been accused by their critics of making ‘unconstitutional’ decisions, yet the meaning of this is subjective. To define this term, several factors should be considered; firstly, the difference between unconstitutional and illegal, secondly, if existing challenges to constitutional principles can be considered unconstitutional, and thirdly, how unconstitutionality is sometimes unavoidable.
The difficulties that come with defining ‘unconstitutional’ are mirrored by the differing descriptions of a constitution itself. Le Suer, Sunkin and Khushal Murkens offer that a constitution is “a text of fundamental importance, setting out how the country is to be governed”. This definition is arguably rather narrow in comparison to that of Wheare who described a constitution as “… the whole system of government of a country, the collection of rules which establish and regulate or govern the government”. In merit to the former, most countries do have codified constitutions set out in a singular document, but the UK is one of a minority of countries – including New Zealand and Canada – without a constitution in this form. This is not to say that the UK does not have a constitution, or that it is not written, but rather that it is comprised of many different texts and principles.
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The UK constitution consists of three vital elements: statutes, case law and constitutional conventions. It should be noted that there is a difference between ordinary and constitutional statutes, as Lord Justice Laws set out in Thoburn v City of Sunderland. Accepted examples of constitutional statutes include the Magna Carta 1215, the Human Rights Act 1998 (HRA) and the Constitutional Reform Act 2005. Furthermore, judicial decisions of constitutional value are those which interpret constitutional legislation or principles such as R (Miller) v Secretary of State for Exiting the European Union. Complementing these components are several doctrines, namely Parliamentary supremacy, the rule of law and the separation of powers.
Freeman describes unconstitutional conduct as that which challenges principles such as these that are “unwritten but universally accepted”. Unlike in countries with a codified constitution, these unwritten principles in the UK are not legally enforceable and rely on the complicity of constitutional actors.
For example, in the UK constitutional conventions play a vital role in the government of the country but are not justiciable. Whilst conventions may be written in documents such as the Cabinet Manual, this means they are only politically enforceable.
Conventions include Cabinet secrecy, which was proved to be a non-legal rule during the case of Attorney General v Jonathon Cape Ltd , in which Lord Widgery explained that “the very name ‘convention’ is a negation of the right of action at law”.
The case also highlighted the difficulty of rules which rely on compliance, as when broken, their aims are not met, but legal action cannot be taken despite the foreseeable consequences. For example, Cabinet secrecy allows Ministers to express their honest views privately, so to avoid public repercussions. This requires the confidentiality of opinions expressed in Cabinet and D’Ombrain argues that this is part of an efficient constitution. If Ministers disobey this convention, frank discussions in Cabinet may by inhibited by fear of public ramifications, which stifles debate around issues which may be of societal, political, or constitutional importance.
The nature of constitutional conventions clearly exemplifies the difference between unconstitutionality and illegality, and supports the argument of Bradley, Ewing and Knight that “conduct may be unconstitutional without being illegal”. Therefore, using Freeman’s earlier definition of ‘unconstitutional’ would mean that to disobey a binding convention would be an unconstitutional event, but not an illegal one, helping to define the parameters of this term.
In light of this, it would seem that any challenge to one of these elements or principles is unconstitutional. However, challenges to these doctrines are evident in our functioning constitution, making it difficult to distinguish an acceptable challenge from an unconstitutional one.
For example, Jennings argued that “the supremacy of Parliament is the Constitution”, and emphasized Dicey’s traditional view of the importance of this principle to the government of the country. Moreover, Bradley noted that in a country without a codified constitution such as the UK, Parliament can make constitutional changes by ordinary process, whereas in codified constitutions, a specific amendment procedure is detailed.
Bradley’s point is debatable however, as in the UK, a bill of constitutional significance follows a slightly difference process to an ordinary bill. For example, these bills typically originate in the House of Commons, and are given a three-line Whip, signifying their importance to Members of Parliament for debate. They are also typically more public and face harsher scrutiny than other bills. Therefore, while Bradley is correct in saying that the procedure for amending or creating constitutional statutes is fundamentally the same, there are slight conventional differences in the reality of this process.
However, Bradley’s overriding idea of Parliament being able to make constitutional changes because of their sovereignty is important. Theoretically, Parliamentary supremacy is a doctrine that the UK aims to uphold, yet there are examples of challenges to this that we choose to live with.
For example, the HRA imposes duties on UK courts, such as that a court may “make a declaration of … incompatibility” if it feels that a provision contravenes a Convention right. The act then goes on to declare that this does not affect primary legislation, implying that Parliament’s sovereignty remains intact.
However, the actual consequences of a declaration of incompatibility effectively bind Parliament into only making laws which comply with the Convention and amending those that do not. A 2012 report by the British Academy Policy Centre explained that a declaration of incompatibility is intended to “trigger a political response”, which is arguably just as important an issue for the government as if it were legal. King found that there has been no case to date where Parliament chose not to remedy incompatible legislation illustrating Parliament’s will to legislate in accordance with the Convention, and the extent of the constraint the HRA causes.
This is not to suggest that Parliament would necessarily have any intention of passing laws that breach Convention rights, but rather illustrate the restrictions imposed on Parliament to making ‘compatible’ laws.
Supporting this, Lester argues that the HRA exerts a “magnetic force over the entire political and legal system”, and while he does not feel that this is negative, he highlights the influence the act has. He also claims that the act is a “measure of fundamental constitutional importance”, showing its significance in this setting.
Therefore, if Parliamentary sovereignty is a key to the UK constitution, and it can be compellingly argued that the HRA challenges, or at least influences this, then arguably the act itself is unconstitutional. This argument was supported by the Joint Committee on Human Rights who in their 2007-08 report argued for a ‘British Bill of Rights and Freedoms’ as it would provide better protection of rights for all and build on Parliamentary democracy, thus removing the constitutional challenges created by the HRA. Arguments for a British Bill of Rights also featured in the campaign to leave the European Union, which arguably shows support for the idea amongst the public, following the operation's success in the 2016 referendum.
However, this argument has been repeatedly disputed and no such ‘Bill of Rights’ has amounted. Moreover, this argument seems to imply that there is a trade-off between Parliamentary supremacy and human rights and that a challenge to Parliamentary supremacy outweighs the value of human rights protection. Gordon notes the popular opinion amongst scholars that “human rights are too valuable to remain subject to the will of an elected legislature” and questions whether Parliamentary sovereignty is still even part of the constitution.
This shows why even though it technically creates a constitutional challenge, the HRA is accepted by the majority in the interests of rights protection, so while this may show a matter which is theoretically unconstitutional, this has a limited effect on the constitution in reality.
Moving forward, if this issue typically goes unchallenged for a wider societal benefit, this begs the question of how these constitutional trade-offs can be formally argued through judicial review to an inevitably ‘unconstitutional’ end, and if constitutional conduct is therefore opting for a remedy which challenges the constitution the least.
A recent example of this was the case of R (Miller) v Secretary of State for Exiting the European Union. Unlike the challenge to Parliamentary sovereignty posed by the HRA as discussed earlier, this case formally argued over the protection of a constitutional doctrine after the executive’s use of a prerogative power was contested.
Although successful for the appellant, the case divided the Supreme Court, and exemplified how issues of constitutionality can be seen from different perspectives, making the definition of ‘unconstitutional’ hard to finalise.
The Supreme Court’s decision intended to protect Parliamentary sovereignty by stopping the executive from effectively changing domestic law without Parliament’s involvement and Ewing argued that the defense of this doctrine was the most striking feature of their decision. The court’s majority felt that “a major change to the UK constitutional arrangements [cannot] be achieved by ministers alone”.
However, the dissenting judges felt that it was wrong for the courts to interject on the executive’s use of a prerogative power to withdraw from international treaties, and that this did not interfere with Parliament’s scrutiny of the executive, or its supreme law-making abilities. However, it should be remembered these were just two of the arguments made by the minority in this complex case and other factors also contributed to their decision.
Lord Reed referred in his dissenting judgement to the words of Lord Denning in Blackburn v Attorney General, who stated that “treaty-making power…rests not in the courts, but in the Crown”, and felt that Parliamentary supremacy needed no protection in this case, as it was not being challenged.
He held this view in an attempt to uphold Parliament’s sovereignty - just as the majority intended - but felt that this would be achieved in a different way. He interpreted the European Communities Act 1972 in a way that did not impose a requirement for the executive to seek permission from Parliament to exercise their prerogative power.
Furthermore, Lord Carnwath dissented that the use of prerogative powers lies with the executive, and that adequate means of Parliamentary scrutiny were available in this matter. He held that “the courts may not inquire into the methods by which Parliament exercises control over the Executive, nor their adequacy”, and therefore there was no reason for the executive not to use the prerogative as Parliament would have a sufficient say in the matter after its initiation.
The clearly differing opinions of the majority and the dissenting judges in this case highlights how a matter can be seen as unconstitutional no matter the outcome, and how it can be argued multiple ways to achieve the best conclusion. The opinions of each judge – whether in the majority or minority - could have been seen as unconstitutional in some way, as could the fact that they even passed a judgement on the matter at all.
Therefore, this case illustrates how constitutional matters that come to judicial review are sometimes resolved by deciding how best to balance constitutional principles which are in conflict, and therefore a matter may be ‘unconstitutional’ for maintaining one doctrine despite challenging another.
In conclusion, in light of these factors it is clear that the definition of ‘unconstitutional’ is subjective. This reflects the complexity of comparing the theory of constitutional principles to reality, as well as differentiating unconstitutional matters from illegal ones. Moreover, while Freeman’s definition of ‘unconstitutional’ still holds merit, this should be held in consideration of the weighted value of the UK’s constitutional principles and their conflicting, non-binary nature when applied to real constitutional matters or events.
Bibliography
Primary Sources
Legislation:
- European Communities Act 1972
- Human Rights Act 1998
Cases:
- Attorney General v Jonathon Cape Ltd [1976] 1 QB 752
- Blackburn v Attorney General [1971] 1 W.L.R. 1037
- R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5
- Thoburn v City of Sunderland [2002] EWHC Admin 195
Secondary Sources
Books:
- A. V. Dicey, An Introduction to the Study of the Law of the Constitution (first published 1982)
- Andrew Le Suer, Maurice Sunkin, Jo Eric Kushal Murkens, Public Law (fourth edition, Oxford University Press, 2019)
- Anthony Bradley, Keith Ewing, Christopher Knight, Constitutional and Administrative Law (17th edition, 2018)
- Anthony Bradley, The Changing Constitution (6th edition, Oxford University Press, 2007)
- Anthony Lester, The Changing Constitution (6th edition, Oxford University Press, 2007)
- Edward Augustus Freeman, The Growth of the English Constitution (first published 1872, London Macmillan)
- Ivor Jennings, The Law and the Constitution (5th edition, University of London Press, 1959)
- KC Wheare, Modern Constitutions, (first published 1951, Oxford University Press)
- Michael Gordon, Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (Hart Publishing, 2015)
Online Reports:
- Colm O’Cinneide, British Academy Policy Centre, Human Rights and the UK Constitution, 2012
Online Journals:
- ‘The Cabinet Manual’, 2011
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