Public Law for Everyone

Constitutional Law students grappling with complicated statutes like the devolution legislation^[1] and Brexit legislation^[2] might find it odd to ask: ‘Is the UK constitution too informal?’ The existence of such legislation – which is replete with formal, legal rules – certainly demonstrates that the constitution is not wholly informal. However, such legislation notwithstanding, it is hard to deny that the UK system is informal to a degree – and to a degree that sets it apart from many other systems.^[3] That informality takes two principal forms.

The first derives from the related phenomena – each considered to some extent in the first post in this series – of the UK constitution’s uncodified nature and the principle of parliamentary sovereignty. In combination, those features of the system make it informal in the sense that no formal process applies to what would, elsewhere, be regarded as ‘constitutional amendment’ – a term that has little purchase in the UK, given the absence of any constitutional text capable of being amended. ^[4] It is true that a practice has developed of holding referendums on contentious constitutional issues, such as Scottish independence and Brexit, but no law required those referendums to be held. Any aspect of the constitution can be changed simply by means of an Act of Parliament – which requires only a simple majority in the House of Commons and the House of Lords, along with royal assent that is a mere formality. Even the need for the House of Lords’ approval can be dispensed with under the Parliament Act 1911.^[5]

A second source of the constitution’s informality derives from its reliance on political conduct and devices for the purpose of upholding constitutional values and standards. Such devices prominently include constitutional conventions: political practices that give expression to fundamental constitutional principles but which are, at least on an orthodox view, not legally enforceable. It was against this background that Peter Hennessy articulated the ‘good chap theory’: the idea that a cultural elite could be trusted to operate the constitution on the basis of shared, deeply embedded values even if they could not be legally enforced.^[6] In less arcane language, albeit writing a hundred years earlier, William Gladstone – who served as Prime Minister several times in the late 19th century – said that the UK constitution ‘presumes, more boldly than any other, the good sense and good faith of those who work it’. He also warned that if such expectations of propriety were to be dashed, ‘the British Constitution [would] be in danger’.^[7]

Such expectations were, however, manifestly dashed by the premiership of Boris Johnson: ‘a one-man stress test for the British constitution, of a kind it had never experienced before’.^[8] Among other things, he unlawfully attempted to suspend Parliament for five weeks, which would have sidelined it at the height of the Brexit process and provoked the resignation of two Independent Advisers on Ministerial Interests in the light of his disregard of their advice and of the standards he was expected to uphold as Prime Minister. He was later found to have committed ‘repeated contempts of Parliament’ by misleading the House of Commons about parties in 10 Downing Street that broke Covid-19 rules,^[9] and responded to the Privileges Committee’s investigation into whether he had misled the House, which ultimately concluded that he had, by denouncing it as a ‘kangaroo court’.^[10]

These two forms of informality are distinct but related. If, as Gladstone put it, the UK constitution depends on the ‘good faith of those who work it’, that quality is nowhere more important than when it comes to wielding the legally unlimited legislative authority of a sovereign Parliament. Once again, the Johnson era and its aftermath provides relevant illustrations. His government was prepared to force through legislation^[11] affecting devolved parts of the UK in the face of opposition from devolved governments, in what was widely considered to be breach of established constitutional convention.^[12] Meanwhile, the Johnson government developed an asylum policy, known as the ‘Rwanda policy’, that was held to be unlawful by the UK Supreme Court on the evidence before it – a judgment that a later Conservative Prime Minister, Rishi Sunak, sought to circumvent by enacting primary legislation directing decision-makers (including courts) to, in effect, ignore the human rights concern raised by the policy that had led the Supreme Court to conclude it was unlawful.^[13]

Such informality should not be confused with a complete absence of restraining forces. Although the Johnson premiership ultimately ended in ignominy after dozens of his Ministers quit over his handling of allegations of sexual misconduct against the government’s Deputy Chief Whip,^[14] it is plausible that this was simply the final straw, and that Johnson’s many other misdemeanours weighed heavily on at least some ministerial consciences. Meanwhile, the Supreme Court’s judgment holding the Rwanda policy to be unlawful, while incapable of preventing the revival of the policy by way of primary legislation, nevertheless delayed matters such that the policy never actually took effect.^[15]

A question that arises in this context is what role, if any, law can play if a government is determined to undermine constitutional principle by way of enacting primary legislation. Does law inject any meaningful degree of friction into a system whose essential informality seems to equip politicians to do as they wish? Here, the principle of legality, according to which courts seek to interpret legislation compatibly with fundamental constitutional principles, is relevant. As Lord Steyn put it in the Pierson case: ‘Parliament does not legislate in a vacuum. Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law. And the courts may approach legislation on this initial assumption.’ However, as he went on to say: ‘this assumption only has prima facie force’ and can be ‘displaced by a clear and specific provision to the contrary’.^[16] A similar point applies to the Human Rights Act 1998, which requires courts to interpret legislation compatibly with relevant rights when possible, but does not ultimately prevent Parliament from breaching them.

This might appear not to amount to much. If all that Parliament has to do is to say clearly that it wishes to override a fundamental constitutional principle or human right, it is surely very easy for Parliament to do so. However, for a number of reasons, we should not rush to that conclusion. As Lord Hoffmann said in Simms, while it is true that ‘[t]he constraints upon [the] exercise by Parliament [of its legislative power] are ultimately political, not legal … the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost’.^[17] And while a government might sometimes have the necessary political capital to absorb that cost, that will not always be so. The principle of legality is, then, one way in which the political and the legal aspects of the constitution are brought into relationship with one another, the courts’ interpretive approach raising the political hurdle applicable to the enactment of legislation that undermines fundamental principle. Indeed, in some contexts, it is not clear that there is any form of words clear enough to satisfy a court that Parliament intended to undermine such principles^[18] – a point that will be explored in a later post in this series examining the relationship between parliamentary sovereignty and the rule of law.

There are other ways, too, in which the legal and the political aspects of the constitution can interact. For instance, the constitutional values that underpin political conventions can inform the development and the content of the law, as occurred in the Miller II case^[19] when the constitutional value of accountability, which animates the convention of ministerial accountability, also sounded in the legal realm as a limit on the government’s power to suspend Parliament.^[20] In this way, too, the informality and flexibility of the political constitution is conditioned, at least to some extent, by law.

Whether the UK constitution is ‘too informal’ is, then, a question without any straightforward answer, not least because views will differ, in the first place, about what the ‘right’ degree of (in)formality is. But we can at least draw two tentative conclusions. First, our view about what constitutes excessive informality is likely to be shaped by political culture, history and experience. In particular, if the conduct of the political class fails to align with Hennessy and Gladstone’s expectations of good constitutional behaviour, the degree of informality that characterises the UK system might begin to look unwise. Second, the apparently infinite degree of informality that derives from an uncodified constitution dominated by the principle of parliamentary sovereignty takes on a subtly different complexion when the principle of legality and the Human Rights Act are factored in. At the very least, as Lord Hoffmann recognised, they force law-makers to confront, and risk paying, a political price if they wish to enact legislation that undermines fundamental rights or values. And, at least in the case of the principle of legality, it remains an open question whether some constitutional principles go so deep as to leave little, if any, scope for the deployment by Parliament of statutory language that is clear enough to overcome them. But while such factors might mean that the UK constitution is less informal that it first appears, their efficacy would likely prove limited in the face of a government determined to disregard constitutional norms and willing to bear the political consequences. It follows that while it would be wrong to overlook the role that law can play in this context, the informal nature of the UK system means that questions political culture assume particular prominence, as Gladstone and Hennessy, in their different ways, acknowledged.