Delivered at the Examination Halls, University of Oxford by RT HON SIR ROBERT BUCKLAND KBE KC MP TUESDAY 11TH OCTOBER 2022
Mark Beard is this year’s High Sheriff of Oxfordshire. He is the MD of Beard Construction, which is a family run business based in Swindon which makes an important contribution to our local economy. The lecture is one of a series that started in 2005, when the late Lord Bingham, former Law Lord and Lord Chief Justice of England and Wales, delivered the first one. Since then, distinguished Judges and former Judges have delivered the Annual Lecture so it was a great honour for me to asked to deliver this year’s lecture.
I also took part that day in a debate at the Oxford Union Society on the issue of a written constitution for the UK with Professor Randy Barnett, Professor of Constitutional Law at Georgetown University, Washington DC.
High Sheriffs, distinguished guests, ladies and gentlemen, it is a great pleasure for me to be able to deliver this year’s lecture on a subject that, from the selected title, you might think will purely be about whether or not the United Kingdom should have a written constitution. You would, in the words of Sir Noel Coward at the beginning of the timeless and Oscar-winning 1945 film version of his great play, “Blithe Spirit”, be “Quite, Quite Wrong”. I seek to offer some wider reflections, based upon my own experiences as a Law Officer, more latterly as Lord Chancellor and as a member of Cabinet who currently has a portfolio interest in devolution and the constitutional arrangements within Wales and the wider United Kingdom.
The most interesting questions for me are, firstly, whether a complex nation state like the United Kingdom could create a meaningful written constitution in its conventional sense, given the fact that we, not to put too fine a point on it, do not start from a blank page. Secondly, are we, whether we like it or not, on the road to a written constitution anyway? To enlarge on the second question, I am not at all sure that the traditional characterisations of our constitution as “unwritten” are indeed accurate. The advance of statute law, the retreat of prerogative power and the increasing frequency of the involvement of our senior courts in often thorny issues of politics make the mid 20th century characterisations of our constitutional settlement somewhat out of date. For the avoidance of any doubt, I think I should say from the outset that I think that the creation of a written constitution for Britain would be a mistake, on political, logistical and legal grounds. The two questions I have asked, however, are worth further exploration in this lecture.
In attempting to answer the first question, it is best to try to establish where we start from. The peculiarity of the British constitutional system has been a topic of discussion and debate amongst legal scholars and constitutional theorists for centuries. Our lack of a violent revolution, save for the events of the 1640s, or war of colonial liberation, in the modern era at least, has led to a system of government that has matured slowly, driven by the evolving sentiments of the government and, more latterly, the governed. Rather than a codified founding document, formed in the wake of national trauma or defining struggle, we have a balance. But do the well-worn arguments of constitutional writers such as Bagehot in The English Constitution, for example, with his split between the “dignified” and the “effective” parts of government, where the former intended to “excite and preserve the reverence of the population” and the latter the government “by which […] in fact, works and rules”, still apply?
At the risk of being branded an incorrigible romantic, which by the way is a risk that I am more than prepared to take, I think that in great measure that they do, and am reinforced in that view by the events of last month, when almost the last act of Her Late Majesty Queen Elizabeth was to receive Liz Truss at Balmoral Castle as the elected leader of the majority Party in the House of Commons and to invite her to form a Government. By Saturday of that same week, the new King was holding his first Privy Council meeting and signing the Instrument of Accession. All of this was done with complete understanding of the conventions that mark the difference between the “dignified” and the ”effective”, but with an element of almost imperceptible change. Let me give you two examples of this that arise from the events of last month.
Firstly, the issue of a change of PM without an election is not without potential for angst. Back in July, when Boris Johnson was under huge pressure to resign, there had been some talk in the media about whether The Queen would be asked to dissolve Parliament and call an election. Wise heads recalled the principles surrounding this which had been set out in a letter to The Times by Sir Alan Lascelles, then Private Secretary to George VI, (who wrote under the name of Senex) after some public discussion about the King’s response to such a potential request in what was a Parliament with a very small Labour majority. In his letter, Lascelles stated that “no wise sovereign” would refuse a request by the PM to dissolve Parliament unless they were satisfied that firstly the existing Parliament was “still vital, viable and capable of doing its job”; secondly that an election would be detrimental to the economy and finally that the Sovereign could rely on finding another PM who would carry on government with a working majority in the Commons. A timely reminder that conventions themselves contain limits. I am not at all convinced that a codification could either incorporate or improve on this, despite the apparent eccentricity in the approach taken by Lascelles!
Secondly, when it came to the procedures surrounding the Accession, the fact that the words of the Proclamation were subtly amended from those used in 1952 also serve to exemplify the almost imperceptible evolution of the constitution, guided by the late Queen. There was to be no reference to a “high and mighty Prince” for our new King, for example, as there had been on previous occasions. If the words of the Proclamation had been set out in statute, then nothing short of an amendment to primary legislation would have been necessary, rather than such pragmatic alterations.
I have to accept that, for some, this doesn’t butter many parsnips and that rather than being concerned with the “dignified” and “effective”, or with arguments about Parliamentary supremacy versus the common law, we should view our constitutional system as being in place to facilitate the operation of a modern liberal state, with the three distinct branches of government being separate from each other and for any constitutional settlement to limit the power of the executive. For some, the arc of history points away from the romantic and firmly towards the utilitarian. The 2005 Constitutional Reform Act, which, amongst other things, transmogrified and reduced the historic role of the Lord Chancellor, created the Lords Speaker and replaced the Judicial Committee of the House of Lords with the UK Supreme Court, is a notable example of where this approach can lead. My main problem with the 2005 Act is that it seems to make an incorrect assumption that the UK system is based upon the principle of Separation of Powers when in fact it is a “checks and balances” system. But perhaps I draw too clear a line here. To believe in a constitutional monarchy of checks and balances is not to oppose liberal democracy, and vice versa. There is a danger that, in dwelling on the domestic detail, we miss the bigger world picture when it comes to the fundamental defence of liberal democracy.
The world in which we live is increasingly unstable and uncertain. The fervent hope that, with the fall of the Soviet Union and an increasingly open China, we were destined for an ever more open, ever more democratic world. The triumph of liberal democracy (remember Fukyama’s “end of history”?), has proven not to be the case. Over the last decade in particular we have seen an erosion of individual rights across the globe; indeed, according to Freedom House, more nations have seen a decline in freedom than an advance in every year since 2006. Populist leaders have brought the legitimacy of democratic elections into doubt, purely for their own ends, and even in Britain, members of the independent judiciary have been described as ‘enemies of the people.’ Is it not time, therefore, that in order to prevent permanent damage being done to our own system and institutions, we create a codified document to safeguard rights, to provide stability and certainty?
Far from guaranteeing stability or safeguarding rights, written constitutions have the potential to do quite the opposite. I can easily cite the 1936 USSR Constitution, which on paper looks marvellous but which stood in stark contrast to the reality of Stalinist purges, show trials and summary liquidations that were the norm then. A look at one of our closest allies and an undeniably vigorous democracy makes for more uncomfortable truths. The US Supreme Court’s decision in the case of Plessy vs Ferguson (163 US 537 1896) illustrated how even a ‘liberal constitution’ can be manipulated for illiberal ends, providing constitutional legitimacy to a system of brutal racial segregation under the notion of “separate but equal”. Later judgments in landmark cases like Brown vs the Board of Education (347 US 483 1954) did eventually help dismantle the inherently racist system of Jim Crow, but it was a system the that obtained a façade of legitimacy from the Constitution. Proponents of a written constitution will argue that the legal ‘legitimacy’ that Jim Crow was able to obtain was not down to a failure of principles in the nation’s founding document, one that explicitly declared “all men are created equal.” Rather, that it was down to all three branches of government failing to live up to these principles. The point remains, however, that a written constitution offered no real protection to those affected by this discrimination.
In addition, the American Constitution also illustrates the consequences of choosing to insert particular rights into inherently inflexible documents; the risk of “constitutional ossification”, as I call it. The debate surrounding gun violence in the US is in my view so entrenched because, for a significant proportion of the American population, the Second Amendment’s ‘right to keep and bear arms’ is regarded as a cornerstone of what it means to be an American. In contrast, Australia was able to move swiftly after the 1996 Port Arthur gun massacre, when the Liberal Government under John Howard enacted sweeping gun reforms, which led to the homicide rate with firearms being more than halved and one of the lowest in the world (0.90 deaths per 100,000 compared to 12.90 deaths per 100,000 in the USA).
The problem of a written constitution isn’t just about what is included within it. It is also about what is excluded. In Dobbs v Jackson Women’s Health Organisation ( 19-1392 597 U.S. 2022) the United States Supreme Court, for sound legal reasons, placed itself into a very difficult political space. As someone who believes in a woman’s right to choose when it comes to abortion, I am deeply worried about the prospect of women having to travel thousands of miles within the United States to have a termination, or being in a position where they simply do not have that choice. I also believe, however, that the best place in which this should be secured is the legislature, not in court. In rejecting the proposition that a federal right to abortion could be interpreted from articles of and amendments to the US Constitution, and indeed from a broader, entrenched right or liberty, the Court itself revealed the essential problem inherent in a written constitution, namely its reluctance to recognise rights and liberties that are not mentioned in the Constitution. Appealing to the common law and precedent in this context would be an easier task in courts here in the UK, it can be argued. Without a written constitution, our freedoms and liberties are defined purely by their boundaries and are not part of a prescriptive legal regime that is dependent upon the interpretation of judges. Fundamentally, the lesson here is that a written constitution is not a stable basis for the creation of new laws or rights via caselaw.
At this point, I am tempted to launch a tangent and to discuss why the very concept of legal “rights” itself sits awkwardly with common law systems, but I must resist this today for the sake of time, and simply say that I am relieved that the Government is looking again at the proposed Bill of Rights, which contained some useful reforms but which opened up the potential of an unwelcome introduction of wider “rights”.
Proponents of a written constitution may well dismiss my references to the flaws and rigidity of the American system, by arguing that a constitution can be changed by the democratic process if it is deemed to be incompatible with the needs and desires of the public. Taken at face value, this seems a perfectly sensible argument. However, if one delves deeper, problems rapidly emerge. What would the process be? Who would write such changes to a document and how would a government obtain the legitimacy to do it? Via a referendum, as De Gaulle did with the creation of the Fifth Republic, or as a manifesto pledge in a General Election? When it comes to constitutional amendments, should the constitution be an entrenched piece of legislation that can only be amended via supermajority of the legislature or via a referendum? If an aspiring government committed to a written constitution as part of an election manifesto, could they truly be said to have a mandate to deliver one? Voters rarely cast their vote for a government on the basis of one policy alone, it has to be said. It seems to me that a referendum would be the appropriate mechanism to approve a written constitution, but this is fraught with difficulty.
Take a look at present day Chile, for example. Chileans clearly want a new constitution; approval for the drafting of one was given by just under 80% of citizens in 2020. Yet just two years later, the proposed constitution was resoundingly rejected. There were some pretty glaring reasons for this. To begin with, it was an enormous document – 388 articles and 57 transitional clauses. It was likely to create multiple legal ambiguities and the members of the citizens assembly who were involved in the documents drafting were infinitely more ideological and often far more left wing than the average Chilean voter. Some failed to take the process as seriously as they should have done, with votes taking place over Zoom, and reportedly one individual having attended votes from the shower!
The process of revision will, we are assured, be more thorough, with greater scholarly involvement. But the process strikes at the core of the problems with the creation of a whole written constitution: how are the political hopes of differing viewpoints included and their rights protected? Is such an operation a means of the existing elite maintaining power or a dangerous driver of instability and worse? It is not for me to opine as to whether or not Chile should have a new constitution but I am simply using the current situation there as an illustration of the tension between balancing the need for change and achieving that change in a sustainable manner.
To quote the old wartime slogan in the context of the task of writing a constitution: “Is your journey really necessary?” It is often asserted that by reforming systems of government, greater prosperity, better public services and a happier population will be the result. When we look for the evidence to substantiate these claims, nothing really emerges. A look at comparable European countries with written constitutions reveals no such difference in living standards and general happiness. The fact that, to quote Pericles, “We enjoy a constitution that does not follow the customs of our neighbours” does not make the way we do things wrong. This argument seems to me to be no more than rhetorical “puffing up”, in an attempt to make the case for change seem more relevant to our everyday lives. In order to create the right conditions for investment and economic growth, legal and political stability are essential. In our economic and political success, I believe that we in Britain have proved that a deeper, cultural, stability is more potent than dry words on a page, but I accept that within this arrangement, tensions are present.
It is contended that unwritten rules and conventions are of themselves uncertain, unclear and inimical to the Rule of Law. Rather than Parliament being supreme, the Rule of Law is held out as being paramount. Lord Bingham, a previous contributor to this series of lectures and the author of a concise and interesting book on this topic, offered this description: “In a world divided by differences of nationality, race, colour, religion and wealth [the rule of law] is one of the greatest unifying factors, perhaps the greatest, the nearest we are likely to approach to a universal secular religion”. As a supporter of an international, rules-based order that is under attack right now, I am a natural proponent of the Rule of Law. I am, however, conscious of its limitations too. I have made the case elsewhere that in elevating this political construct, we run the risk of confusing it with the Law itself. I happen to believe very strongly in the Rule of Law, but I am also mindful of the fact that where a democratically elected Parliament has acted, then its clearly expressed will should be at the heart of things. The danger of pitting the Rule of Law against Parliamentary Supremacy is that we end up in a “judges versus politicians” scenario, which is the original ill wind that did nobody any good. What of the health of the other two parts of our constitution, then?
When it comes to characterisations of a wholly supine legislature, I am not so sure that this is in fact the case. In the past decade, both Houses of Parliament have demonstrated their ability to scrutinise and change the course of important legislation and Government policy. The Wright reforms of 2010 strengthened the independence and role of Commons Select Committees and reduced the patronage power of the Whips. The 2017 Parliament often took Brexit matters into its own hands, with the help of an activist Speaker, in a way that we have not seen in modern times. Voting rebellions happen far more often than they used to. The House of Lords has not been shy in rejecting key parts of Bills and is often seen as the biggest obstacle by Ministers in a hurry to get things through.
However, it is undeniably true that Parliamentary time in the Commons is largely controlled by the Government, which raises the question as to the effectiveness of Parliament’s mechanisms. The Standing Orders of the Commons, which I earlier mentioned as the closest to a written constitution that we have got, can be amended by simple majority and by a whipped vote. It is not for me as a Government Minister to venture suggestions today as to what should be within Standing Orders or most importantly, as to whether and how they can be amended to better accommodate this role, however. That is ultimately for the Commons itself to resolve.
Meanwhile, the Executive too continues to receive an almost universal beating, irrespective of which party is in Government. There is a commonly-held assumption that the UK Government is quietly content to accrue ever-greater power and reach, and that it assumes the stance of the Austrian Empress Maria Theresa on her annexation of Galicia. In the words of Frederick The Great: “She wept, but she took nonetheless”. Having served in Government for about eight years, I can attest that the opposite is true. Overstretched Ministers and Civil Servants are quick to express concern as to Government overreach - another statutory duty here, another permanent spending commitment there - and the atmosphere is more one of wary acceptance or weary acquiescence, rather than aggressive assertiveness. As I have said elsewhere, Government is more Prometheus bound than Prometheus unbound.
This leads to my main objection to a written constitution. Put simply, it is this: a written constitution is a body of law. When disputes arise as to the applicability of the constitution to particular laws or scenarios, that constitution will require interpretation. That has to be done by judges, sitting as a constitutional court, however it may be described. The process of senior judicial appointments, which in this country is largely uncontroversial, then, becomes of great political significance, as it has done in the case of the US Supreme Court, particularly within the last forty years or so. In the three jurisdictions of the UK, the judicial oath contains a declaration that judges “will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will”. These are important words, that stand the test of time. It is not the wish of judges to enter the political arena. It should be the task of politicians and the Lord Chancellor specifically, to do everything possible to avoid this eventuality. That was my aim when I served in that office, and I know that the current incumbent shares that belief.
I take the view that our constitution should seek to follow the principle set out by Sir Christopher Wren, whose gravestone inscription in the crypt of St Paul’s reads: “Si monumentum requiris, circumspice.” ‘If you seek his monument, look around.” In other words, the constitution lives in the institutions and practises that live and breathe daily. It is in the living instruments I have referred to already in my lecture that our unwritten constitution is to be found. In short, we should not be wasting our time or energy in the Sisyphean task of writing a UK Constitution, and I haven’t even mentioned the inevitable complications that devolution brings to this task.
To deal with the second question I raised, there is an undeniable trend emerging that has some of the hallmarks of a written set of constitutional rules. Of themselves, individual statutes do not amount to a written constitution. But statutes creating particular institutions, for example the Scottish and Welsh Parliaments, have the potential to be seen as “mini-constitutions” due to their subject-matter. As their powers have developed, we have seen the use of declaratory clauses such as S2 of the Scotland Act 2016, which refers directly to the Sewel Convention, and the use of statute to politically entrench the institutions. Already, we see that the UK Supreme Court has within the last ten years or so, had to deal with a number of References on devolved powers. The Supreme Court, like all our courts here in the UK, seeks merely to answer the question before it, rather than to be expansive when it comes to constitutional matters, but it is the responsibility of the other parts of the constitution to make sure that when legislation on these issues is drafted, care is taken not to create more issues that are justiciable in order to minimise the risk of such situations arising.
On this very day, the UK Supreme Court is beginning to hear argument about the legal competence of the Scottish Government to hold a further referendum on the separation of Scotland from the rest of the United Kingdom. I make no comment as to the merits of this case as it is an ongoing matter and merely make observations as to the framework in which it sits. The mechanism for this is within the Scotland Act as amended. There are similar provisions in the Acts of Parliament that govern the Senedd and Northern Ireland Assembly, allowing for example the referral of legislation passed in either Cardiff or Stormont to the UK Supreme Court if in the opinion of the Law Officers, the legislation is outside the competence of the respective body. Is this the advance of a written constitution almost by accident?
I think that ultimately, we are not at risk of creating a written constitution by stealth. Although the political reality means that, like the Bill of Rights 1689, it is vanishingly unlikely that the legislation setting up the national Parliaments within Britain would be repealed, the fact remains that no legislation enjoys a special entrenched status in the UK Parliament. I mentioned the Constitutional Reform Act 2005 earlier on in my lecture. Almost the only good thing about this piece of rushed legislation is that it does not enjoy the status of a constitutional measure and can be repealed or amended just like any other statute. Amen to that.
Although UK courts do not have the power to strike down primary legislation, its proliferation means that in increasing numbers of cases, the courts are asked to opine as to statutory interpretation. This is not the same, however, as the function of a constitutional court. The greatest risk to the constitutional balance, is, in my opinion, not activist courts, but poorly drafted and incontinent legislation. Whilst I am a strong believer in the supremacy of Parliament, the accompanying responsibility of Ministers and legislators to think of the bigger picture is one that we don’t acknowledge readily enough.
To sum up, then. I do not think that the arc of history bends inevitably towards a written constitution for the UK. If I am wrong in that, then I think the pathway to it is a very long and winding one indeed.
Thank you very much.