A reduction of checks and balances; dilution of human rights and judicial review; and the potential demise of the Union. Can our constitutional settlement be rescued from this sinister Conservative administration?by Sionaidh Douglas-Scott / December 17, 2019 / Leave a comment
Before the election, most UK party manifestos set out ideas for constitutional reform, most specifying the need for a codified constitution written down in one place, with some sort of constitutional convention to determine this. However, although Britain is one of very few states lacking a codified constitution, the Conservative manifesto made no such commitment, indeed it lauded the flexibility of Britain’s uncodified constitution as “its ability to evolve.” Yet the absence of a commitment to comprehensive constitutional reform does not mean the Conservative manifesto said nothing about the constitution. On the contrary, commentators highlighted some “ominous” manifesto passages, especially those on p48.
This article focusses on some of these potentially concerning passages. However, it is also written with more general reflections in mind about what constitutions are and do. It is worth assessing the manifesto commitments according to these standards, underlining flashpoints for constitutional strife.
What is the point of a constitution? Their existence, usually in codified form, is a recognition that rules about major state institutions (parliament, executive, courts, monarch) are fundamental and different in kind from other rules, such as on dangerous dogs. Constitutions concern rules about how the state may legitimately exercise power. So constitutional laws should be distinguished from everyday laws, although in Britain, absent a codified constitution, this is often tricky, and it is too easy to change even fundamental rules on the basis of partisan interests.
Constitutions do many things, but they have three particularly important functions for contemporary Britain. First, they delineate the roles of major state institutions, and relations between them. They usually provide for separation of powers, as well as checks and balances between institutions, which provide some accountability. Second, constitutions also regulate the relationship between government and individual, usually by a Bill of Rights, providing some protection for individuals against an overbearing state. Third, in most states, there exists not only a horizontal separation of powers between central institutions, but also a vertical separation, distinguishing powers of central institutions from those at state/regional level, whether the system is federal, or devolutionary as in Britain. In all these ways, state power is regulated, limited and made accountable.
So what are the potential consequences of the new Conservative government for the separation of powers and accountability; human rights; and devolution? Much of our answer relates to…