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Circling the square: our sprawling constitution works better than you think

A constitution should regulate conflict between different parts of the state—and in the Investigatory Powers Tribunal case it did just that
June 10, 2019

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 of Justice held that it could declare whether Article 50 was unilaterally revocable—in the face of the government submission that it was a non-question. Both decisions meant that the government could not just get its way.

"Well-meaning rigidity would do nothing to resolve contradictions"
But there are still non-Brexit constitutional cases as well. In May 2019, there was a fundamentally important decision about the respective roles of the executive, parliament and the judiciary. This was the judgment of the UK Supreme Court in an application brought by Privacy International about the intelligence and security services.

The government took legislation through parliament to create a secretive “Investigatory Powers Tribunal.” This body would be the exclusive means of redress for those who claim to have been on the wrong end of unlawful action by security agencies. Such accountability is necessary: there should be independent oversight of spooks. The next question, though, is what keeps the tribunal itself in check. The usual legal position is that every tribunal created by parliament can be subject to judicial review in the High Court. Supervision may be residual, and judges deferent to the specialist body, but it is not open to any tribunal to make legal errors, to assert a jurisdiction they do not possess.

But the government did not want the standard supervision for this tribunal. Ministers got parliament to approve a so-called “ouster clause” to prevent its decisions being judicial reviewable. If the tribunal said it had a jurisdiction then that was to be the end of it.

Privacy International was plucky enough to challenge this. Venerable case law was on its side. But remarkably, the High Court and Court of Appeal said no: there could be no judicial review of the tribunal. Parliament had set out its intention plainly, in primary legislation, and there was nothing which those courts could do to gainsay this. Ministers and MPs had somehow managed to exclude the High Court, and a secretive tribunal could decide everything for itself.

The Supreme Court, by a majority, decided otherwise. The IPT could still be judicially reviewed, regardless of parliament’s attempt to prevent it. The combined insistence of parliament, the government and the lower courts was not sufficient to close this off this foundational right. 

This should prompt a mild cheer from liberals and constitutionalists. On this occasion, the UK constitution worked so as to resolve a tension in favour of the rule of law and access to a court. But it was a close decision, and not at all inevitable. The next Supreme Court decision may go in an illiberal direction.

Would a codified constitution make this sort of situation any better? Some advocates imagine that it solves every ill. That prescription and demarcation would, at a stroke, mean a happier polity. The problem is that codification can make it more difficult for executive power to be checked and balanced. Codification by itself would not guarantee a liberal balanced constitution. Neat demarcation is attractive, but may not reflect where power really lies. Well-meaning rigidity would do nothing to resolve contradictions.

A sound constitution does not provide for what happens when all is harmonious: a constitution is then hardly necessary. A practical constitution is less concerned with what power it gives each element of the state than what powers it ultimately withholds from each. If you recognise these basic truths, you will not insist on a neat single text unless you can show how conflicts will be resolved any better than they are at present. If you can’t, but you’re still wanting to see the UK constitution in one place, then just head down to Parliament Square.