Thursday 13 August 2020

A constitutional commission

The Constitution, Democracy and Rights Commission should consider the establishment of a permanent constitutional commission. The role of the permanent commission would be to issue non-judicial advice to assist courts in deciding cases that concern the UK’s political constitution, and to advise ministers in proposing constitutional legislation to Parliament. 

  • The purpose of establishing a constitutional commission would be to: 
  • protect the political character of the British constitution; 
  • create a body that can state authoritatively the principled basis of that political character; 
  • encourage through dialogue greater judicial cognisance of the constitution’s political domain, and of the limits of the legal domain; 
  • establish a clear mechanism by which ministers, in response to the commission’s advice, will propose constitutional legislation to reverse or codify judicial decisions; 
  • review and improve other constitutional legislation proposed by ministers; and 
  • educate the public on the workings of the UK’s political constitution.

Why a constitutional commission is necessary

The UK’s exit from the European Union is a reassertion of political, democratic control over our country’s supreme legal order. However the prolonged public debate that preceded Brexit revealed a troubling indifference to Britain’s political constitution, among the educated and even among some legislators. Exit from the EU’s highly legalistic order will not by itself automatically restore political constitutionalism. The UK must take steps to relearn the institutional and cultural balance between law and politics that characterises a political constitution. Such balance can, necessarily, only be restored through institutional dialogue and cultural change, not by the legal power of a single body. 

The prorogation case of 2019 demonstrated that the Supreme Court lacks the institutional competence, and perhaps the inclination, to safeguard the constitutional balance between law and politics. Parliament, which must on occasion legislate quickly in response to the pressures of the day, cannot, unaided by authoritative guidance, be expected to prioritise at all times the conventions of an ancient constitution. 

This paper proposes the constitutional commission as a means of finding that balance again. It would advise, and mediate between, our constitutional decision-makers in both the courts and in Parliament, while preserving the legal authority of the courts, and enhancing the constitutional legitimacy of both.

In cases touching upon the political constitution, courts would be compelled to refer relevant constitutional matters to the commission, and take account of its subsequent advice. The commission in turn would have discretion to advise ministers on any legislative changes necessitated by a court decision. Ministers would also be required to seek commission advice before laying constitutional legislation before Parliament. In either case, ministers would either have to follow the commission’s advice, or state before Parliament their reasons for not doing so. Further details of the commission’s proposed workings are given below.

The benefits of a constitutional commission

The commission’s work would improve the quality and legitimacy of constitutional jurisprudence. Judicial attempts to encroach on the proper domain of political constitutionalism would have to be justified, or abandoned, in response to Commission advice delineating the parameters of that political domain. Judges would need to defend the merits of judgments which, while lawful, might nevertheless be unconstitutional. The quality of such judgments, and the courts’ constitutional oversight generally, would be enhanced by judges’ new obligation to take account of the polycentric factors of the British constitution that extend beyond law alone.

A judiciary less ready to encroach upon the newly asserted domain of politics would be less likely to stray into public controversy, and more likely to preserve its crucial popular legitimacy. Legal changes that might otherwise be criticised as judicial ‘power grabs’ could be inoculated from such criticism if carried out with respect for impartial and authoritative advice on the limits of judicial power.

The legitimacy of Parliament would also be enhanced by the establishment of the commission. Constitutional legislation will frequently be controversial. Legislation proposed in good faith to reverse an over-reaching court decision is liable to be denounced as a populist affront to the rule of law. Further, the constitutional merit of legislation can sometimes be overshadowed by perceptions of political opportunism. Obtaining the prior approval of the commission would remove or diminish the grounds of such criticisms. It would also, moreover, improve the quality of any eventual act passed by Parliament.

The commission’s work would also clarify and shape the ongoing development of the constitution. Dialogue between judges and the commission could helpfully identify the point where a legal principle becomes, within the wider framework of the political constitution, a legal fiction or mere formality. The commission could also clarify existing, and identify new, constitutional conventions, especially those which may escape judicial notice.

Finally, the commission would have considerable educational benefit. The Brexit debate, for instance, would have been enormously improved by authoritative and impartial advice on the political-constitutional limitations of parliamentary sovereignty, and the democratic significance of referendums. 

The functioning of the constitutional commission

Judicial reference mechanism

The High Court and senior courts (and their Scottish and Northern Irish equivalents) would have an obligation to refer relevant constitutional matters to the commission for advice. It is proposed in preliminary terms that a relevant constitutional matter:

  • is in issue in proceedings;
  • concerns the extent of the power of one or more of the arms of the state, but does not concern:
    • the interpretation of statutory language or any common law decision conferring any such power; and
    • the rights of any individual; and
  • is a matter of general public interest and importance.

In addition, a court would have discretion to refer any constitutional matter which in its judgment required the commission’s advice. 

A refusal to make a reference could, on the usual grounds, give rise to grounds for appeal if the court had wrongly interpreted the statutory provisions determining when a reference is to be made.

The commission would be obliged to provide advice upon matters properly referred to it. The court would then be obliged to take that advice into account in making its decision. The commission’s advice would, like expert evidence, be evidence of fact, not law. 

The independence of the courts in making judgment would not be fettered in any way. A court could, having taken into account the commission’s advice, decide to disregard it. However, as the commission would have power to advise the government to bring legislation in light of court decisions on constitutional matters, it is suggested that courts would prefer to enter into a dialogue with the Commission if the alternative might be legislation overruling their decisions.

Legislative advice

The commission would have discretion to issue legislative advice in response to a final court decision on any constitutional matter, whether or not any court had made a reference to the commission during proceedings. A minister would then have to lay a bill enacting the commission’s proposals, or make a statement to Parliament giving reasons why the government chose not to. 

To aid good-faith dialogue between courts and the commission, in instances where the commission had already advised a court, it could not subsequently resile from that advice in any legislative advice it provided to the government, unless specific circumstances applied.

The commission would be obliged to issue legislative advice requested by a minister for the purpose of proposing any legislation on a constitutional matter. The minister would then have to lay commission advice before Parliament before the second reading of any bill concerning a relevant constitutional matter, and at second reading make a statement before Parliament setting out the government’s response to the commission advice, giving reasons for any decision not to follow its advice. 

The government would therefore not be obliged to follow the commission’s advice. It would, however, have to attempt to justify any decision not to do so and face the political consequences.

The Commission would also be obliged to issue legislative advice requested by any sponsor of constitutional legislation other than a minister, and would have discretion to issue advice on all bills relating to constitutional matters of its own accord. Advice in either case would have to be made publicly available online.

Conclusion

This brief proposal has necessarily left much unsaid – the composition of the commission, the appointment process, its remit and accountability, and its cost versus the benefit. It has however summarised the benefits – the commission would future-proof the British constitution against potentially rash changes by both courts and Parliament. It would, if effective, reinforce the incrementalism that has historically protected our constitution, by forcing its decision-makers to pause for reflection. Crucially, this benefit could be achieved without disruptive change to constitutional fundamentals – Parliament would remain supreme, and the judiciary independent.


No comments:

Post a Comment