Scotland has a constitution, we don’t need a new one

'Law' / Woody Hibbard / CC
'Law' / Woody Hibbard / CC

There are many phrases and buzzwords being bandied about in the run-up to the independence referendum that are sources of confusion, but the biggest distortion is surely caused by “constitution”.

Often thought to be boring and exclusively in the domain of academics and lawyers, it has been increasingly cited in referendum debate as a reason to vote ‘yes’.

One leaflet issued by Yes Scotland contained opinions from Scottish voters concerned about the UK. John, for example, a joiner from Shetland, was worried that the United Kingdom didn’t have a written constitution and was glad to hear an independent Scotland would have one.

The argument advanced by the Yes Campaign is that the UK’s constitution is unwritten and, by inference, Scotland having a codified constitution would be better. The Scottish Government have even – rather prematurely – released Scotland’s Future: from the Referendum to Independence and a Written Constitution[1]; a White Paper detailing the consultation process for enacting a constitution for Scotland.

John is not wrong, but probably means to say is that the UK Constitution is not codified into one document like the United States or Canada (which consolidated all codified acts, unwritten traditions and conventions into the codified Constitution of Canada[2] in 1982).

Unlike the Constitutions of America[3] or Canada, the constitution of the United Kingdom cannot be found in one document, but instead is located across three main sources: legislation, judge-made law and conventions. Legislation forms part of the constitution when it concerns constitutional matters; these fall into two categories – institutions and powers,[4] and government and individuals.[5] We can immediately see, from the third source of the unwritten constitution, that constitutional conventions form part of the unwritten constitution, meaning that their relationship is inextricably linked.

Constitutional experts Turpin and Tomkins loosely define the UK Constitution as:

“…a body of rules, conventions and practices which describe, regulate or qualify the organisation, powers and operation of government and the relations between persons and public authorities.”[6]

There is a close affiliation in the relationship between the unwritten constitution and constitutional conventions of the United Kingdom; there is, in fact, such a close affiliation that on occasion the line between the two blurs, causing confusion as to what each of them is. As the Constitution is unwritten, it is hard to know what is and what is not in it; this makes it hard for the public to access it and to ascertain what the constitution is about. The Constitution of the United Kingdom is unentrenched which means that it has no special legal status and so can be easily changed by legislation.

As described by legal scholars Bradley and Ewing, the lack of a written constitution within the UK means that ‘there is no fixed procedure prescribed for legislation of constitutional importance’.[7] They also comment that without a written constitution it means that ‘on many matters British government depends less on legal rules and safeguards than upon political and democratic principles’. [8]

Entick v Carrington[9] laid down that all of the UK government’s actions must be based on the law, which limited the government’s powers. This case was given further weight in the Supreme Court of the United States in the case of Boyd v United States[10], where Lord Camden praised the decision in Entick v Carrington.

Legal writer, Albert Dicey, described constitutional conventions as being the non-legal aspects of the constitution.[11] He further described them as ‘not enforced or recognised by the courts, make up a body … of constitutional or political ethics’;[12] although courts cannot enforce conventions, they can become law through legislation. Conventions themselves can be written or unwritten, but that does not alter their weight as conventions.[13]

There are many examples of various conventions within the United Kingdom including the convention that the Queen must appoint someone from the House of Commons as the Prime Minister. Many of the official duties of the Monarch form constitutional conventions, including assenting to legislation; this convention has the precedent that Monarchs have done so for some time. The Monarch does feel obligated to do so, as can be seen in the actions of King George V when asked to refuse assent of a Bill and he allowed assent anyway[14] on the advice of Prime Minister Asquith. As Turpin notes:

“The part to be played by the Crown, in such a situation as now exists, has happily been settled by the accumulated traditions and the unbroken practice of more than 70 years.”[15]

The last time that the assent was refused by a Monarch was in 1708 when Queen Anne refused to allow the assent of a Bill regarding a Scottish Militia.[16]

For a convention to exist there are three things that must exist- precedent, which comes from the continuation of the convention over time; a feeling of obligation; a constitutional reason for a rule. Constitutional conventions are not themselves binding, but they are followed because there is an obligation to do so.

An example of a convention out with the role of the Monarch is the Sewel Convention which notes that the UK government will only legislate on devolved matters with the consent of the Scottish Parliament[17]. Another example of a well-known convention is the Widdicombe Convention, which was written by a committee assessing the procedure regarding government spending on the advertising of government policy.[18]

The leading authority case law regarding the significance of the conventions is Evans v Information Commissioner[19]; the convention stated that the heir to the throne has the right to educate himself in the workings of government, but the court held that that convention did not exist and so allowed the publication of the letters between Prince Charles and the government.

In the case of R. v Secretary of State for Foreign and Commonwealth Affairs,[20] we can see some of the problems that may arise due to there being a lack of a written constitution within the United Kingdom and the confusion that lies therein. This case regarded a declaration to stop constitutional change without the approval of the electorate. The appeal was refused because there was not enough sufficient evidence shown to prove that any such convention had the force of law. The court said that any referendums held prior to previous constitutional changes had been done through Acts of Parliament and not in order to please a convention; he also failed to prove that each important constitutional change had received prior support from the public. The court held that if it was to rule in favour, the court itself would be making a constitutional change, which the pursuer argued required the approval of Parliament and the electorate.

As we can see, it is not often clear to the public what is and what is not a convention or what forms part of the constitution; if the public does not know what either are, this can be seen to hinder the potential of the public to hold the government accountable if they do not adhere to the conventions and the constitution. One could argue that, perhaps, for a more democratic, accountable society to exist within the United Kingdom, a codified constitution is required.

By codifying a constitution into one document, it would make it easier for people to identify what is part of the constitution, which is without a doubt a positive and some may say is needed in order for the public to hold government accountable. However, this could also lead to the political and legal system being very rigid, which may not be for the best of the nation, and could lead to problems the likes of which are to be seen in the United States presently regarding the Second Amendment[21] and debates on gun control [22].

As we have seen, constitutional conventions and unwritten constitution can be said to be one and the same. The difficulty arises when one tries to differentiate between conventions and the constitution itself, and because of the lack of a written constitution within the United Kingdom, it is more difficult to know what forms part of the constitution than it is for the electorates of America, Canada or even South Africa. The conventions form an integral part of the constitution, along with legislation and judge-made law, and so their relationship is enduring.

So the long and the short of it is this – John, don’t fret: we already have a constitution. 


 

[1] Scotland’s Future: from the Referendum to Independence and a Written Constitution, http://www.scotland.gov.uk/Resource/0041/00413757.pdf accessed 13/7/14.

[2] The United States Constitution, http://www.usconstitution.net/const.html accessed 13/7/14.

[3] The Constitution of Canada, http://laws-lois.justice.gc.ca/eng/Const/index.html accessed 13/7/14.

[4]For example, Constitutional Reform Act 2005, Acts of Union.

[5]For example, Magna Cart 1215, Human Rights Act 1998.

[6] Colin Turpin and Adam Tomkins, British Government and the Constitution, (7th Edition Cambridge Books Online 2011).

[7]A.W. Bradley and K.D. Ewing, Constitutional & Administrative Law, (15th Edition Pearson 2011).

[8]Ibid.

[9]95 E.R. 807.

[10] 116 U.S. 616 (1886) accessed through http://scholar.google.co.uk/scholar_case?case=9067527596654000149&hl=en&as_sdt=2&as_vis=1&oi=scholarr&sa=X&ei=UJhIUfHhHMXB0gXB64CAAQ&ved=0CC8QgAMoADAA accessed on 19/3/13.

[11]Colin R. Munro, Studies in Constitutional Law, (Butterworths London 1987).

[12] AV Dicey, Introduction to the study of the law of the Constitution, (Macmillan & Co Ltd. London 1961).

[13] Colin Turpin and Adam Tomkins, British Government and the Constitution, (7th Edition Cambridge Books Online 2011).

[14]A.W. Bradley and K.D. Ewing, Constitutional & Administrative Law, (15th Edition Pearson 2011).

[15]Colin Turpin, British Government and the Constitution, Text Cases & Materials, (4th Edition Butterworths 1999).

[16] UK Parliament, http://www.publications.parliament.uk/pa/ld/ldcomp/ldctso28.htm accessed 13/7/14.

[17] Scottish Government, The Sewel Convention: Key Featureshttp://www.scotland.gov.uk/About/Government/Sewel/KeyFacts accessed 19/3/14.

[18]Colin Turpin, British Government and the Constitution, Text Cases & Materials, (4th Edition Butterworths 1999).

[19] [2012] UKUT 313 (AAC).

[20] [2003] EWCA Civ 1002.

[21] Fox News, ‘Cruz, Feinstein tangle over 2nd Amendment as panel approves assault-weapons ban’ http://www.foxnews.com/politics/2013/03/14/sen-cruz-feinstein-tangle-over-2nd-amendment-as-panel-approves-assault-weapons/ accessed on 15/7/14.

[22] Kate Dailey, BBC News, ‘US gun debate: Could Obama’s guns plan work?’ http://www.bbc.co.uk/news/world-us-canada-21033709 accessed on 15/7/14.

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