Select Committee on Constitution Ninth Report


Memorandum by Professor John McEldowney, University of Warwick

Introduction

1.1 The purpose of this paper is to address the affects of the proposed European Constitution on the constitution of the United Kingdom. Specific attention is drawn to those articles of the draft Treaty that might have particular significance to the constitutional arrangements for the United Kingdom.

1.2 Consideration is given to how institutions of the United Kingdom may have to adapt to give effect to the Constitutional Treaty were it to be implemented. Special consideration is given to identifying the main characteristics of the United Kingdom's current constitutional arrangements that are distinctive from other Member States. Given its history, tradition and culture, the United Kingdom may find the proposed European Constitution more complex and difficult to assimilate than other Member States. This reflects the asymmetrical nature of our existing constitution involving devolution and regional assemblies. Account has also to be taken of the strong tradition of local government within a non-federal system. The primacy of United Kingdom legislation and the technical detail, complexity and variety of United Kingdom statute law needs to be taken into account when assessing the draft Constitutional Treaty.

1.3 The paper begins with consideration of the United Kingdom's constitutional arrangements at present and proceeds to examine the affects of the proposals in terms of the likely impact on the constitution. In the interests of space only the major Articles that are most likely to have a constitutional impact are considered. It is clear that there are some significant proposals that emerge from the European Constitution that have the potential to impact on the structure and working of the United Kingdom's constitution. Assessing how that impact may be quantified or described, however, is difficult. In some cases there will require substantial change to the law in other instances changes will be less fundamental and require gradual assimilation rather than any fundamental re-think. Striking the balance between the different levels of change will be difficult to judge. There are four parts to the Draft Constitution. In terms of constitutional implications this paper will focus on Part I that addresses the definition and objectives of the European Union. The most obvious area where there will be fundamental change in terms of substantial re-alignment will come from Part II which incorporates the Nice, European Charter of Fundamental Rights ( December, 2000). This is outside the discussion of this paper. Part III and IV address general policies of the European Union. Most of Part III is excluded from consideration in this paper and it is generally understood, at the time of writing, that Part III is under discussion and is to be revised. Part IV contains general and final provisions; of specific interest are those that explain how the Treaty would come into force and powers of amendment. These are not considered in this paper.

The United Kingdom's constitutional arrangements.

2.1 The essential characteristics[92] of the United Kingdom's constitutional arrangements require some elucidation, partly because in the absence of a formal written constitution there are difficulties in clearly defining the powers of the executive and the role of the legislature and judiciary. Compared to most other Member States there are some intrinsic qualities ascribed to the absence of a formal written constitution that are worth considering. There is an increasing tendency towards uniformity within the European Union that may challenge the essence of the United Kingdom's system of law, government and administration if not directly then indirectly. The latter may occur as an incipient change to the constitution without the appropriate consideration and time for reflection. Thoughtful reflection is certainly appropriate when considering the implications of the proposed European constitution. It is also a timely moment, given the recent proposals within the United Kingdom, for constitutional modernisation, in particular the office of Lord Chancellor and the possibility of a new Supreme Court. This is the culmination of fundamental constitutional reforms introduced since 1997 ranging from an independent Bank of England, Lords reform, the creation of an administrative court, the Human Rights Act 1998, changes to local government and the introduction of a variety of types of devolved regional government. Changes to the electoral system have also replaced the first past the post system for regional devolved assemblies and European elections with a plethora of different electoral systems - save for the retention of first past the post for Parliamentary elections. Such changes are unprecedented both in terms of the speed of their introduction and also their potential impact on the way constitutional government operates in the United Kingdom. At the same time there remains a formidable part of the constitution that has retained its historic identity even if located in a different formulation of political and legal powers in the midst of modernisation and change. Continuity is seen as one of the self-perpetuating features of the constitution. Change, even of a fundamental nature may be introduced but continuity helps maintain and preserve past traditions. The ebb and flow of reform and renewal is accommodated within the flexibility of the constitution.

2.2 Describing such a system of constitutional government and the constitution itself is problematic especially when asked to consider how the draft European Constitution may have implications. The difficult task of describing and defining the essential qualities of the United Kingdom constitution is an important starting point. The United Kingdom's constitution may be described as unwritten or uncodified, as opposed to written or codified; flexible, as opposed to rigid; unitary, rather than federal; and institutional and practical, as opposed to theoretical and doctrinal. The contemporary monarchy maintains a largely symbolic role and continuity of tradition. Bagehot aptly described the monarch's formal powers as "the right to be consulted, the right to encourage, the right to warn"[93]. The monarch retains the power to grant a dissolution of Parliament on the advice of the government. There is also the power to invite the leader of the political party with the majority of seats (the Prime Minister elect) to form an administration. In the case of a hung parliament this might be not just symbolic but decisive in the choice of the party to form the government.

2.3 The absence of a single codified or written constitution leaves the working out of the practicalities of the constitution to the system of laws, conventions and customs that are the hallmark of the medieval inheritance. A notable feature is the use of conventions — essential norms of political behaviour, difficult to categorize in any strictly legal or constitutional sense, that comprise the common practices and workings of government that link the modern with the ancient, medieval constitution. Dicey's influence since the nineteenth century has led constitutional lawyers to believe that conventions serve the purpose of examining past practices to determine future conduct. Unlike rules or laws such as statute law, conventions are not enforceable by the courts but often help explain the political workings of the constitution.

2.4 Conventions have grown historically as unwritten rules, and may adapt to the changing methods of modern government. That is their enduring quality. They are not the product of either judicial or legislative intervention, but rather of custom, usage, habit, and common practice. The most formative period for their development was probably in the eighteenth and towards the end of the nineteenth century. Conventions have the shortcoming that they reflect the values of mid-Victorian Government and, perhaps, fail to take account of modern party-political realities. The increasing complexity of the machinery of government may make accountability through conventions more of a myth than a reality. Many important practices are part of the internal working of government, and it is difficult to give internal working practices special value or elevation to the status of a convention. In essence, conventions are "the morality of the constitution". They may be relied on to alter with the political circumstances of the time.

2.5 The essentials of the United Kingdom's constitution are the sovereignty of parliament and the rule of law. With Britain's membership of the European Union, and the Human Rights Act 1998, both these traditional aspects of constitutional law have recently come under debate and scrutiny as part of the process of fundamental reform. Another unique feature of the constitution that has been questioned is the absence of a formal or rigid doctrine of the separation of powers. This remains a gap in the United Kingdom's constitutional arrangements which is difficult to fill. Montesquieu's philosophy of the separation of powers has influenced the creation of a constitutional doctrine or principle that is commonly found in most written constitutions, notably that of the USA. However, the idea of separation of the three functions — the legislature, the executive and the judiciary — is hard to conceive of as applying to the United Kingdom. For example, up until the recent announcements proposing reform, the Lord Chancellor was head of the Lord Chancellor's Department, Speaker of the House of Lords, and head of the judiciary. Defining separation may mean that one organ of government should not exercise the functions of another; or that no one element of the three should dominate the other; or that the same person should not occupy a position in all three organs of government — which the Office of Lord Chancellor offended. While the separation of powers is fine in principle, it is hard to operate in practice. The need for a distinction between the three functions is at the heart of the doctrine. Lord Templeman, in the House of Lords in M v Home Office,[94] considered the question of the courts' contempt powers when the Home Secretary appeared to be in breach of his undertaking not to deport a citizen of Zaire. The fundamental principle was that the Home Secretary should obey the law like any other citizen. As Lord Templeman noted, "Parliament makes the law, the executive carry the law into effect and the judiciary enforce the law."[95] It might be concluded that there is no formal separation of powers in the United Kingdom and that the formalities of such a doctrine are unlikely to be observed until there is a written constitution. However, the doctrine is important, and has influenced the United Kingdom. The separation of powers doctrine seeks to observe checks and balances in the way powers are exercised, and may have guided the way the three organs of government have developed. The rule of law, which Dicey defined in terms of preventing "arbitrary decision making", rests on the wisdom of convention and relies on good sense and judgement to prevail. The sovereignty of Parliament could on a whim curtail the rule of law, but Parliament has, with certain exceptions, limited its own powers to interfere with it, and thus ensured its survival.   

2.6 In summary the main features of the United Kingdom's Constitutional arrangements that require careful consideration in the light of the proposed European constitution are:

    the primacy of the House of Commons in its political and legislative roles;

    the importance of a civil service that is permanent, neutral and appointed on merit;

    the dualism approach of the United Kingdom to international law and obligations requiring domestic United Kingdom legislation to give effect to international obligations;

    the absence of a tradition involving a codified or written constitution;

    the absence of entrenched law and the lack of any technical classification distinguishing constitutional law from ordinary law;

    a tradition of relatively few restraints on the House of Commons to enact legislation on the basis of the political sovereignty of the electorate;

    the principles of cabinet and ministerial responsibility to the House of Commons and the functions of the various select committees of Parliament to take evidence and hold government to account.

The effects of the proposed European Constitution

3.1 The most important constitutional question to be addressed is how easily will proposals for a written European constitution established by Treaty for Member States fit within the historical tradition of the uncodified constitution in the United Kingdom? Given the significance attached to the primacy of the House of Commons and the role of politicians in terms of policy making through legislation the answer is that the proposed Constitution is likely to impact significantly on areas of policy and law. Thus the traditional United Kingdom constitutional approach to legislation and law making may change. However, there is likely to be a division of opinion among commentators over the interpretation to be given to certain aspects of the draft Constitution. The constitutional significance of the draft needs to be assessed in terms of how the traditions of the United Kingdom's Constitution are likely to be affected - this includes the culture of law and politics including Parliamentary debate and accountability.

3.2 The task of assessing the impact of the draft Constitution is made more difficult by the degree of ambiguity about the nature of the European Constitution itself[96]. Its draft (likely finally to be in excess of 200 pages) is unlike any other style of written constitution. Its scope is unclear. Commentators disagree over the ambit of the constitution. Some see it as a consolidation or "tidying up" of the existing treaty arrangements in line with a need for general simplification[97]. This is used as an explanation to deflect criticism that the constitution may alter the United Kingdom's current constitutional arrangements. Others see the draft as having significance in terms of altering the constitutional order of Europe and thereby causing re-consideration of the United Kingdom's sovereignty.

3.3 On the question of United Kingdom sovereignty it might be possible to envisage two distinct approaches. The first is a narrow approach that argues that strictly speaking the proposed Constitution changes nothing fundamental. Here the emphasis is on the European Communities Act 1972 that remains intact and consequently remains the basis for the relationship between the United Kingdom and the European Union. On this view the legal sovereignty of the House of Commons is constant in terms of the authority of Commons to revise or amend the 1972 Act, thus permitting the continuity of sovereignty.

3.4 The second approach is broader. It is possible to consider that many of the attributes granted to the European Union under the proposed Constitution are analogous to a wholly sovereign state but explicitly stop short of creating a sovereign state. Such attributes include: conferral of legal personality; the notion of citizenship of the European Union; the development of a Charter of Fundamental Rights for citizens of the Union; changes in the way decisions may be made without the national vote; the creation of a President; a Foreign Minister; and through the proposed document itself a written constitution is adopted rather than a collection of individual Treaties. While the Constitution may constitute the sum total of the existing Treaties, revised and refined, it is also endowed with a status of a Constitution - even though this status is not well defined or explained. Inevitably the status of a Constitution invites interpretation by the courts and this adds an additional dimension of how judges might interpret the terms of the Constitution. There is plenty of room for interpretation, particularly as there is such unnecessary vagueness.

3.5 The question of how sovereignty is defined is considered in Article 1-10 of the draft Constitution. This article asserts that the Constitution and law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States. This broadly defines the powers, that have been interpreted by the European Court of Justice in successive case law and accepted by the courts of Member States[98]. This includes also under Article 1-10 that Member States should take "all appropriate measures, general or particular" to ensure that the obligations flowing from the Constitution are fulfilled. The formulation of Article 1-10 gives the Constitution legal authority and primacy. This reinforces the argument that interpreting the draft Constitution will be a matter of law- with the subsequent notion that the courts will make every attempt to give primacy to that law and by its nature will seek to uphold the Constitution when there are doubts and uncertainties. This gives rise to the possibility of the development of various Constitutional presumptions as a means of interpreting the European Constitution.

3.6 Constitutional interpretation by judges has a long history distinguishing it from ordinary statutory interpretation[99]. Generally a more dynamic or flexible approach is adopted, most likely employing other jurisprudence from other countries and systems[100]. This may give rise to a degree of judicial incremental law making commensurate with the organic growth of the constitution itself that has the potential for developing constitutional rights, immunities and powers beyond the literal meaning of the words adopted. The potential for a possible jump in judicial interpretation towards a more purposive approach to legal rights under the constitution should not be under-estimated.

3.7 The powers granted under the draft Constitution are vague and ambiguous. There is no explicit statement positively defining the remit of powers resting on the constitution or on the European Union. According to Article 1-9 of the draft constitution the Union has power to act only within "the competences conferred upon it by the Member States" . Conversely there is no explicit recognition in the Constitution of the national sovereignty of Member States. Article 1-5 addresses the question of the national identities and the respect such state functions including the territorial integrity of the state and ".. for maintaining law and order and safeguarding internal security" should be given by the European Union. It is difficult to know whether there is any legal protection afforded to state functions were it agreed by the Union to proceed to govern member states in those areas, most notably defence and foreign affairs.

3.8 This is at the hub of the problem of interpretation. There appears to be different modes of protection afforded to national states. The first is Article 1-5 based on "respect" for national identities. The second is Article 1-9 which defines the limits of Union competences by the "principle of conferral". This is a complex and ill defined concept. It has a number of strands to it. The first is that "the Union shall act within the limits of the competences conferred upon it by the Member States". This is broadly in line with past practice that over time the Union will be defined by the mutual assent of the Member States. This includes the principle of subsidiarity and over time the various Treaties have built up a series of competences that are largely accommodated within the Member States through consent. However, for the first time this is defined as a fundamental constitutional principle and the principle of conferral may give rise to an organic shape to the Constitution as well as the European Union. There is considerable scope for believing that cumulatively and over time the European Union is likely to grow and develop. The draft Constitution permits this to happen but the disadvantage is that precisely where the boundaries of that development are appear not from the Constitution but from the Member States. This might prove re-assuring to some as a sign of a flexible and pragmatic approach to constitution writing. Equally it might mean that the Constitution sets a blue-print for developing a broader political and policy-making role that has the potential to effectively change the nature of the competences enjoyed by the Member States. The proportion of organic growth through the proposed Constitution may directly affect the proportion of authority within the Member State. In a country such as the United Kingdom care is needed to ensure that the traditions of the constitution- conventions and so on are capable of holding their influence against the tide of incremental change possible under the European Constitution.

3.9 The second strand is that " … [c]ompetences not conferred upon the Union in the Constitution remain with the Member States". One interpretation might be that this provides a doctrine of mutual assent. The Union may only grow through competences granted to it by the Member States. However, equally valid might be an interpretation that assumes that the Union's powers are inevitably going to grow. This has the potential danger of creating an asymmetrical form of constitutional devolution to the Union, if it is presumed that the growth in activities is to be lead by the European Union rather than at the level of Member States. In that sense it might be the residual power that resides with Member States even though, paradoxically, the constitution makes it clear that the Union derives its powers ( Article 1-9) from the Member States. This ambiguity is difficult to resolve until it is made clear to what extent the Union is likely to increase its competences. Article 1-1 makes clear that the aspirational part of the Union in building a common future is to be found through the Union's role to … coordinate the policies by which the Member States aim to achieve these objectives[101] and shall exercise in the Community way the competences they confer on it…."

3.10 In considering how to assess the constitutional implications of the draft Constitution, it is difficult to reconcile the narrow approach and the broader approach to interpreting the proposed constitution. One way might be to argue that the new European Constitution would require primary legislation ( reinforcing the 1972 Act) and by analogy with the Human Rights Act 1998 the opportunity to strike some compromise that preserves some degree of constitutional primacy to the House of Commons, and the long standing tradition of the sovereignty of Parliament in the United Kingdom's system. The use of a referendum might help underpin any change. Indeed, it might be argued that the organic quality of any changes undertaken through the draft Constitution requires some flexible mechanisms to ensure that the traditions of the United Kingdom's constitutional system are preserved. Some mechanisms are required to keep under review the traditional United Kingdom Constitution when faced with unpredictable changes that may occur in an unforeseen way. The principle should be adopted that constitutional change should come about only after debate and discussion rather than by stealth.

3.11 Article 1-3 provides broadly defined objectives for the European Union. While couched in rhetorical and optimistic language the objectives touch on many matters that also fall within the United Kingdom's parliamentary traditions. It is these that may need most consideration as the organic nature of the draft Constitution may incrementally impinge on the value and importance of United Kingdom Parliamentary traditions including ministerial responsibility, the role of the House of Commons, the separation of powers doctrine and conventions of the constitution.

Conclusions

4.1 The draft European Constitution should not be seen as a document that is in response to a single event in history and so sets up a rigid set of "rules" to determine future actions and open to interpretation by the courts. Nor does the proposed constitution provide a clear set of rules on how power is to be exercised. The proposed Constitution has a more organic nature to it than a traditional approach to writing constitutions. The Constitution initiates a process and thus predicting its impact or assessing its significance is made more difficult. As a process the constitution addresses a wide variety of issues ranging from how policy is to be developed to the relationship between the Union and Member States. As outlined above two approaches may be taken: a narrow approach that is focused on the European Communities Act 1972 as the main basis for the Treaties and therefore the Constitution itself; a broader approach that considers the Constitution to be given primacy under European Union law that initiates a process that may affect the main institutions of government and more deeply the legal culture and traditions of the United Kingdom. Irrespective of whether a broad or narrow approach is adopted, it is clear that the United Kingdom needs to find mechanisms to monitor how to adapt and react to the many constitutional innovations and changes that will result from the draft Constitution. The draft constitution should be read as an aspirational document that leaves unclear and uncertain how the future constitutional arrangements of the European Union will work. As a template the draft Constitution should be seen as initiating a process and if the broad approach is adopted it will cause us to re-think many of the ways our traditional United Kingdom Constitution is working.

John McEldowney
School of Law,
University of Warwick
8th September 2003



92   John F. McEldowney, Public Law 3rd edition, London: Sweet and Maxwell, 2002, Anthony Bradley and K. Ewing, Constitutional and Administrative Law Longman, 2002.  Back

93   Walter Bagehot, The English Constitution London, 1867 reprinted and edited by G.Phillipson Sussex Academic Press, Sussex: 1997. p.42. Back

94   [1993] 3 WLR 433. Back

95   At p. 437. Back

96   The Economist, June 21st-27th 2003. Back

97   There is an excellent discussion to be found in: House of Commons Research Paper 03/60 and Research Paper 03/58 covering the main parts of the draft Constitution. Back

98   Costa v ENEL C6/64 [1964] ECR 1141, the Factortame cases including: [1989] 2 CMLR 353, [1990] 2 AC 85, [1991] AC 603,[1992] QB 680,[1996] QB 404,[200] 1 AC 524. Back

99   Lord Sankey in Edwards v Attorney-General for Canada [1930] AC 124 quoted in H. Calvert, Constitutional Law in Northern Ireland , Belfast, 1968, NILQ,p.121 Back

100   See in the Northern Ireland context under the Government of Ireland Act 1920, Belfast Corporation v OD. Cars [1960] N.I. 60 Back

101   Article 1-3 sets out the Union's objectives. Back


 
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