Memorandum by Professor John McEldowney,
University of Warwick|
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
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".
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,
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."
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
the absence of entrenched law and the lack of any
technical classification distinguishing constitutional law from
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
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.
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.
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.
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.
Generally a more dynamic or flexible approach is adopted, most
likely employing other jurisprudence from other countries and
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 "
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
and shall exercise in the Community way the competences they confer
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.
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
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
Walter Bagehot, The English Constitution London, 1867 reprinted
and edited by G.Phillipson Sussex Academic Press, Sussex: 1997.
 3 WLR 433. Back
At p. 437. Back
The Economist, June 21st-27th 2003. Back
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
Costa v ENEL C6/64  ECR 1141, the Factortame
cases including:  2 CMLR 353,  2 AC 85,  AC
603, QB 680, QB 404, 1 AC 524. Back
Lord Sankey in Edwards v Attorney-General for Canada  AC
124 quoted in H. Calvert, Constitutional Law in Northern Ireland
, Belfast, 1968, NILQ,p.121 Back
See in the Northern Ireland context under the Government of Ireland
Act 1920, Belfast Corporation v OD. Cars  N.I. 60 Back
Article 1-3 sets out the Union's objectives. Back