English: One of several shelves full of books about the constitution of the United Kingdom at the law library of UC Berkeley School of Law. (Photo credit: Wikipedia)
Why does the United Kingdom need a written constitution?[1]
The United Kingdom needs to have a written constitution even though it may never develop one. There are three challenges that need to be overcome before it can be written let alone agreed and implemented. Before we consider these three points, we need to understand that constitutions only arrive from a constitutional moment. They are not created by mistake or as an afterthought. We must move beyond the idea that a constitution comes from the intermittent accretion of laws and judicial rulings. A constitution cannot be an implicit document as that defeats the explicit purpose which as it constitutes a regime. A regime may form from the accretion of laws and judicial rulings, yet that is not a constituted body from a constitutional moment. One might suggest that a constitutional moment is an example of what Carl Schmitt called the exception. Yet, a constitutional moment unlike the exception or the state of exception, may require too much political change to be accomplished by a single document or a single decision. Moreover, unlike the state of exception a constitutional moment usually, but not always, demonstrates or relies upon all constituting parties agreeing that a constitution is necessary if only from a situation of crisis in which the status quo can no longer be sustained. Without a crisis or something that creates a constitutional necessity, such as secession, there is no appetite or incentive to change. Why should a constitution be introduced when the regime is satisfied with itself. In such a situation of regime self-satisfaction, what can be accomplished, at best, is relative reform rather than wholesale or fundamental change. If we consider the effort it took to create the Constitution of the United States of America, we see the UK faces a problem of significant scale and complexity.
In the United States of America scenario, a people created a government and by an extension a regime through a constitution. The intent in the UK appears to be a government will create a constitution. In that difference, we see the deeper challenge to a written constitution and a constitutional moment in which various institutional forces are at work that reflect the institutions which would either disappear or be seriously disadvantaged by a written constitution. The deeper challenge is beyond the scope of this essay as more space would be required to sketch or explore the forces and interests arrayed against such a constitution or the constitutional moment. At this stage, I can only say that many powerful actors have little to gain and much to lose from a written constitution.[2] However, I applaud Parliament for giving the public the opportunity to entertain the idea that it can create a constitution from reflection and choice.
It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.[3]
Until the United Kingdom embraces a written constitution, it relies upon its founding is by accident and force. The hereditary monarchy has not arrived or remained by a democratic mandate. Even the restoration is not a constitutional event but a return to a previous status quo. Even though the UK has sustained its founding, the event of 1688-89, founding by reason and reflection, it remains incomplete. In terms of honouring the fundamental principle of Magna Carta, that men can reason and agree to determine their political system and the limits of political authority, it remains incomplete. To that end, I make my recommendation. However, my recommendation has to be understood in light of the three problems that only a written constitution can address.
Is equality before the law possible without a written constitution as supreme law?
First, we face the problem that without a written constitution we do not have a supreme law of the land as exists in the United States of America, France, Germany and other liberal democracies.[4] A written constitution becomes the supreme law of the land. The current situation is one where Parliament’s will is sovereign and this leads to arbitrary government through prerogative power, which is undefined, and not a consistent government through constitutional authority. The challenge from a constitution, as a supreme law, is that it would make the sovereign subject to the law. In a republic, where the people are sovereign, they express that sovereignty through the law they create and consent to obey. By contrast in the UK, the sovereign, the Queen is not subject to the law. She obeys voluntarily. Thus, unlike her subjects she is exempt from the law as sovereign, which belies the claim that there is equality before the law. [Insert footnote] One way to see this difference is that the Queen is not required to obtain a passport. The point can appear trivial or even humorous. However, it masks a deeper point of principle about the symbols and reality of power within the United Kingdom. If a constitution were created, then the Queen would be subject to that law as would everyone else. Moreover, Parliament would also be subject to and bound by the law. Herein we see the second problem.
Will Parliament willingly tame its sovereign power and by extension the Monarch’s power?
Parliament, and the other institutions, represents the establishment to the people they are representatives of the Crown not the people’s will. They swear an allegiance to the Crown not parliament or the people. This is at the heart of problem with the HRA.
Parliament is sovereign and it guards its sovereignty jealously.[5] Its sovereignty is supported by the prerogative powers it has inherited from the Monarchy. If a written constitution were created and implemented, it would bind Parliament’s sovereign will and the prerogative powers. Parliament knows that it is not bound by any limit save its own will. Parliament may enter into agreements and treaties, but it retains the right, and power, to leave those treaties to protect its sovereign will. In this sense, the Parliament is above the law. Lord Neuberger recognized this point when he quoted Lord Justice Laws,
It may be that my perceptive and far-thinking colleague , Lord Justice Laws, will one day turn out to be right when he argued that, through judicial development of the common law, ‘a gradual reordering of our constitutional priorities [may] bring alive the nascent idea that a democratic legislature cannot be above the law.61 ’ But we are not there yet. (the footnote is from here [6]
A written constitution will challenge this sovereignty and Parliament is not going to relinquish this power without some effort or a crisis. To put it directly “Turkeys do not vote for Christmas”. As neither the effort nor crisis exists, it seems a dream. At best, we may have some minor or indirect reform, such as a review, but the demand or appetite for fundamental change does not yet exist. Without a crisis, the system remains unchanged. Therein, we see the third problem. The political system, the Crown, is designed to sustain and defend Parliament’s sovereignty and by extension the Monarch’s prerogatives. We can see this is the issue of official Oaths.
When will the oaths reflect the primacy of the law or the benefit of the people?
As the Committee has identified in the evidence it has received, all public offices declare an oath of allegiance to the Crown. These oaths help us to see why a written constitution is needed. If we look at the Queen’s Oath, we see the issue clearly.
Queen did not take an oath to serve the people or the law.[7] She takes an oath to govern according to the respective laws of each nation. However, that does not mean that she is subject to those laws. She rules or governs according to their laws. She will ensure that law and justice are executed in her judgements. In this, we see the first issue. The Queen executes the laws even if Parliament creates them. Parliament cannot execute a law. The armed forces and the police take an oath, an attestation, to the Crown, not to Parliament or the people or even the law.[8] The Army and Royal Marines attest an oath to the Monarch.[9] We need to note that the Royal Navy does not swear an oath because it was created by Royal Prerogative.[10] Finally, we note that Parliamentarians taken an oath of allegiance to the Queen not to the law or to the people.[11] In themselves, the oaths are not problematic. However, in terms of a written constitution, they present an immediate and fundamental problem. The Monarch would have to release them from their oath of allegiance before they could swear allegiance to a written constitution as the supreme law of the land. In United States, by contrast, the military takes an oath of allegiance to the Constitution.[12]
We note that the oaths are more than symbols. They are legally binding statements, which define constitutional powers. An MP cannot take a seat in Parliament without swearing allegiance. The symbols reinforce the public’s position within society and before the law. Neither the Monarch nor her representatives swear an oath to them or to a constitution, which serves them. In the United States, all citizens are equal before the Constitution. Even the most powerful citizen, the President of the United States, takes an oath to uphold and defend the Constitution. No citizen is above or beyond the Constitution. By contrast, the Monarch is above or beyond the unwritten constitution to the extent that the organs of the state and her representatives swear an oath to her and not a constitution or the people. Moreover, the people are expressly removed from the oath or their ability to enforce the oath. They may influence it but only in a way that is removed because it is exercised only through Parliament or by direct appeal to the Monarch.
The practical consequence of this issue can be seen directly in the issue of deaths in police custody. As Koos Couvee wrote, “Since 1969 no officers have been successfully prosecuted for a death in custody.”[13] The question that we must answer is “Who do the police serve?” They serve the Crown not the people. They keep the public order and enforce the law. However, the police do not represent or serve the public in the sense that they swear an oath to the people or to a constitution created by the people. Herein, we see how the oaths reveal the question of justice. All the organs of the state swear an allegiance to the Queen and the people are secondary. When someone dies in police custody, the police only answer to the government, which also swears allegiance to the Queen. The Queen, though, is not accountable to the people. The government is not of, by, or for the people. It is Her Majesty’s government, ministers, judges, armed forces and police force. When a police officer, a Crown official, is arrested and charged for the death in custody, the Crown tries them. If a constitution were to be created, then it would make the Queen subject to the law in the same way that any citizen is subject to the law that they have constituted. However, that potential raises a question whether the people will be allowed to participate in the constitution.
A constitution can create the possibility of a new political settlement. A new political settlement will be the first step towards a democratic justice. The Magna Carta contains that promise. A constitutional reform can deliver it. The question that the UK faces is whether the Crown will tolerate such a change and if the people can participate. A constitution written by the Crown and presented to the people to give them the opportunity to ratify it does not suggest a constitution so much as a Crown construct. The choice is whether the UK will retain its Monarchical system or if it will continue the journey towards a democratic future. Until the journey is completed, the UK will continue to have a partial justice and lack a common good based upon an equality before the law.
[1] The following essay is a revised and expanded version of my written submission to the Consultation on “A new Magna Carta” by the Political and Constitutional Reform Select Committee.
[2] Niccolo Machiavelli noted this problem in the Prince “And it ought to be remembered that there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things. Because the innovator has for enemies all those who have done well under the old conditions, and lukewarm defenders in those who may do well under the new. This coolness arises partly from fear of the opponents, who have the laws on their side, and partly from the incredulity of men, who do not readily believe in new things until they have had a long experience of them.” The Prince, Chapter VI, Concerning New Principalities Which Are Acquired By One’s Own Arms And Ability http://www.constitution.org/mac/prince06.htm (accessed 1 January 2015)
[3] Alexander Hamilton Federalist #1 in The Federalist Papers (Avalon Project) http://avalon.law.yale.edu/18th_century/fed01.asp (accessed 1 January 2015)
[4] See for example “The Constitution of the United States,” Article 6, Clause 2
“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”
[5] Consider Lord Neuberger of Abbotsbury’s Weedon Lecture. 6 April 2011 http://webarchive.nationalarchives.gov.uk/20131202164909/http://judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-weedon-lecture-110406.pdf (accessed 31 December 2014)
[6] 61Laws, Illegality and the Problem of Jurisdiction, in Supperstone & Goudie (eds), Judicial Review, (Butterworths) (1997) 4.17 cited in Goldworthy, The Myth of the Common Law Constitution in Edlin (ed), Common Law Theory (CUP) (2007) at 204
[7]http://www.royal.gov.uk/ImagesandBroadcasts/Historic%20speeches%20and%20broadcasts/CoronationOath2June1953.aspx (accessed 31 December 2014)
[8] https://en.wikipedia.org/wiki/Police_oath#United_Kingdom (accessed 31 December 2014). The constable will follow and uphold the law. However, their first allegiance is to the Crown not the law, parliament, or the people.
[9] https://en.wikipedia.org/wiki/Oath_of_Allegiance_%28United_Kingdom%29#Armed_forces (accessed 31 December 2014) “I… swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Her Heirs and Successors, and that I will, as in duty bound, honestly and faithfully defend Her Majesty, Her Heirs and Successors, in Person, Crown and Dignity against all enemies, and will observe and obey all orders of Her Majesty, Her Heirs and Successors, and of the generals and officers set over me.”
[10] http://www.royal.gov.uk/MonarchUK/ArmedForces/QueenandtheArmedForces.aspx (accessed 31 December 2014)
[11] http://www.parliament.uk/site-information/glossary/oath-of-allegiance/ (accessed 31 December 2014).
[12] http://www.history.army.mil/html/faq/oaths.html (accessed 31 January 2014)
[13] Deaths in British police custody: no convicted officers since 1969
Koos Couvée 9 August 2013 https://www.opendemocracy.net/opensecurity/deaths-in-british-police-custody-no-convicted-officers-since-1969 (accessed 1 January 2015)
Philosophical Politics 