A constitution should regulate conflict between different parts of the state—and in the Investigatory Powers Tribunal case it did just thatby David Allen Green / June 10, 2019 / Leave a comment
If you go to Parliament Square and look around, you will see the main elements of the UK’s historic constitution. On one side is parliament, on another Whitehall, on the third the Supreme Court, and on the fourth is Westminster Abbey, to remind you that there is, in England, an established church. Look harder, and you can glimpse the workings of a more modern state too. Police, often armed, with their New Scotland Yard just around the corner and their colleagues in the security services not far down the river. Nearby are the departments for Scotland, Wales and Northern Ireland. The media, with their studios on Millbank and interviewers on College Green. And if you wait around you will soon encounter protesters for and against the constitutional predicament that is Brexit. A walk around Parliament Square is the nearest you will get to seeing the UK constitution all in one place.
This is because there is no single text setting out the UK’s constitutional arrangements, still less a handy portable one you can put in your pocket. Some say the UK has an unwritten constitution, though this is not strictly correct. The constitution is written down, just not in one place. It is instead contained in Acts of Parliament, books of authority, case law, and records of customs and conventions. There are organising principles, such as the general (though in reality never absolute as widely assumed) rule that parliamentary legislation is supreme. But these are to be inferred rather than spelt out in some fundamental legal instrument.
The purpose of any constitution, codified or not, is to recognise tensions between the elements of a state and provide for how they are resolved. A constitution is there to regulate the consequences of such conflicts, as well as between people and the state.
In this respect, you can sometimes see parts of the UK constitution in action. In courtrooms, for example, you can see how contests between elements of the state are regulated and resolved so that they do not become messy contradictions.
Recently, Brexit has thrown up a couple of constitutional cases. In the Miller judgment, the UK Supreme Court held that it was not open to the PM to remove EU law from the UK without parliamentary approval. In the Wightman case, the European Court…