The Unwritten Constitution of the United Kingdom

Abstract

There has been much talk of constitutional reform in recent years, but the changes that have actually been taking place have often differed markedly from those that the Government has professed to espouse and have shaken the foundations of the previous system without following any coherent overall plan. Written constitutions are not without shortcomings; the conventions that held the old British constitution in place are in any case difficult to codify or enforce. But a pressing problem with an unwritten constitution is that there is no special mechanism for constitutional change. Recent reforms have therefore become associated with short-term political expediency and spin. The cure is not simple.¹

As a tribute to Professor Sir John Baker QC, who has served as a member of the Editorial Board since the Ecclesiastical Law Journal's foundation and energetically continues to do so,² I am pleased to reproduce the lightly edited text of his British Academy Maccabbaean Lecture.³ Delivered in 2009, though still topical today, it provides a cautionary critique of the direction of travel in the evolution of the United Kingdom's unwritten constitution which I hope will serve as a prelude to an occasional series of articles and comment in the pages of this Journal considering the role of the spiritual within the constitution and the established nature of the Church of England in the twenty-first century. Matters that have been ignored or marginalised in the recent constitutional revolution include the role of the Prime Minister in the appointment of bishops and archbishops and the ecclesiastical patronage exercised by the Lord Chancellor. [Editor]

There are good precedents for legal historians complaining about constitutional dangers, most notably John Selden, whose name would need no commendation to the founders of this Lecture. But he lived in an age when history provided live ammunition in defence of the liberty of the subject and constitutional monarchy. That kind of legal history is no longer of any forensic value in this country. My concerns in 2009 were rooted in very recent history, and came into focus after the inept announcement by Mr Blair on 12 June 2003 that he had abolished the office of Lord Chancellor, apparently without consulting anyone outside his own circle.⁴ I am going to confine my remarks to the brief period since then, although there is a good case for regarding the progressive surrender of autonomy to the European Union, and the various experiments with inland devolution and local government, as beginning a major constitutional revolution well before 2003 and as raising concerns at least as troubling as those on which I shall be concentrating.⁵

When I delivered a public lecture in 2004 on ‘The Constitutional Revolution’,⁶ one of my chief complaints was that grave changes were occurring almost daily without much public notice being taken. Several years on, I can hardly complain of a complete lack of publicity – at least for those sufficiently well informed, and with sufficient leisure, to search the Internet regularly for the appropriate keywords. But I have come to the conclusion that the problems which I tried to identify in 2004 have deepened, and that the ‘revolution’ which I then addressed in somewhat pejorative terms is not to be identified with the ‘constitutional renewal’ that the Government has proudly announced. In fact, there is such a gulf between the public statements of the Government and its actions that one might be forgiven for thinking that the language of ‘renewal’ is more rhetoric than reality, another form of ‘spin’.⁷

It is admittedly difficult to separate constitutional matters from matters of political judgment. I am not sure that ministerial incompetence, arrogance, inefficiency, excessive centralisation or over-regulation can properly be regarded as unconstitutional, except in the sense that it is generally beyond the power of the people to do much about them. They are certainly not wholly new. Nor am I suggesting that the problems with our unwritten constitution all began under Mr Blair; some of them have a longer history. But the problems have come to the fore in the last few years chiefly because of widely perceived changes in the style of government.⁸

First there is the concentration of power in the Prime Minister and his special advisers at the expense of the Cabinet and a professional Civil Service. It has become fashionable to speak of an increasingly presidential style of government. But this does not, of course, mean a constitutional presidency: rather, a novel kind of monarchy. The chief difference from classical monarchy is that our quasi-monarch is indirectly elected – very indirectly, in the case of Mr Brown – but, once in power, he is an absolute monarch for a term of years and rules without the partnership of others.⁹ The Prime Minister would only have to persuade Parliament to suspend the quinquennial system of election and he would really be an absolute monarch. I hope that is still unthinkable; but I am less sure than I was ten years ago. Although the House of Lords retains the power to veto such a measure,¹⁰ with a reconstituted House of Lords, supinely following the party whip, it would only require a supposed national emergency as a pretext; and we have seen that the Government is willing to play that card on occasion.

There is nothing new in the notion that we have an ‘elective dictatorship’. I remember Lord Hailsham coining the term in a lecture in 1976.¹¹ But it has become a more common figure of speech, as evidenced by over 9,000 hits on Google – nine times, incidentally, the number I counted in 2004. Without any opportunity for electoral approval or dissent, we have acquired a form of government that appears to operate without reference to traditional advisory mechanisms or public opinion. Proposals of a fundamental nature often come as a surprise to the outside world, because there has been no preceding clamour for them; and I am not sure the Civil Service or even the Cabinet are always made privy either. There has been some show of a return to public ‘consultation’ since Mr Blair's departure; but the practice of announcing novelties as decided government policy still has the practical effect of making the subsequent process of consultation a meaningless charade. No doubt it makes life easier for a Prime Minister if he can just turn to his chosen advisers on the sofa for guidance.¹² And, since his party commands a majority in the Commons, it must be an irritation to have to bother about consultation, precedents, or even Parliament. But there is reason to doubt whether the presidential model is working well even in terms of managerial efficiency, since it places a heavy emotional and physical strain on the Prime Minister if he is to be responsible for every detail in person while trying to appear infallible in public.¹³ There is now widespread dissatisfaction with the growing phalanx of special advisers and policy units, and the replacement of old-style Civil Service mandarins with managers appointed not to advise impartially but to deliver at all costs. There is also growing popular despair at the processes of government. This can be associated with the emergence of a political class, disconnected from the rest of society, and with no experience of other ways of life, which is motivated principally by the pursuit of power and the perquisites of power.¹⁴ When members of this class find themselves in government, they assume a strident and unmerited self-confidence about their natural superiority to other institutions and professions and their mission to control them. Not the least troubling manifestation of this trend is the seeming indifference to independent legal advice, an observable consequence of which has been regular confrontation with the courts.¹⁵ Another is the indifference to truth: it has been very harmful to popular confidence in Government that the public has been routinely misled or kept in the dark about important facts. Freedom of information is a worthwhile objective so long as the information is correct and reliable, and so long as it does not drive real decision-making into informal privacy or encourage disinformation. It is a sad reflection that the Government which prides itself on the Freedom of Information Act has done as much harm as good by developing the culture of ‘spin’ and reducing the role of the Cabinet.

A different problem is that ministers have come to evaluate their performance by legislative hyperactivity rather than effective results. Success is measured in terms of news headlines, most easily captured by announcing something ostensibly new: new targets, new directives, new quangos, new regulations and new statutes. There are around 15,000 pages of new legislation every year, and the Labour Government is famously credited with the creation of some 3,000 new criminal offences. The steady increase in volume has resulted in a corresponding deterioration in the quality of legislation. It is now standard practice to lay bills before Parliament that are little better than outline plans, to be somehow refined as they are pushed through, or (all too often) after they have been passed. Often the main provisions are tucked away in schedules rather than in the body of the statute, rendering them almost unintelligible. In their rush to notch up their contributions to the statute book, ministers jostle each other for time in the Commons. Why, we might ask, in the Constitutional Reform and Governance Bill, is the Civil Service dealt with in the same measure as bits of the royal prerogative, public order and amendments to the system for appointing judges? Apparently the Government could not spare sufficient parliamentary time to take them separately. That time is allocated by the Government, whose stranglehold over Commons business is routinely used to stifle proper debate upon the torrent of legislation that it generates. There has also been a worrying increase in the fast-tracking of legislation so as to preclude scrutiny almost completely,¹⁶ and in the introduction of substantial late amendments to ill-prepared bills, which has the same effect.¹⁷ It is particularly troubling when this careless, helter-skelter approach to lawmaking does not spare even constitutional changes.

And this brings us to the far greater problem, that we have no proper mechanism for constitutional change. The Secretary of State for Justice, Mr Jack Straw, said in a lecture in February 2008 that the constitution exists in hearts and minds and habits.¹⁸ It would have been more accurate to use the past tense. But what he did not say, of course, is that it cannot be appropriate for the settled assumptions, which have worked for so long by consent, to be changed unilaterally by the Government, whose power they are designed to limit, particularly by the very Government responsible for some of the most serious challenges to the rule of law in recent history. Even among supporters of the Government, there seems to be no fear that some future administration – perhaps formed by a party reflecting popular frustration with the present political class – might abuse the newly increased powers that it will inherit. Short-termists do not comprehend the notion of bad precedents.

The creation of a Department of Constitutional Affairs on 12 June 2003 was even more shocking than the bungled abolition of the Lord Chancellor. Although it has now been renamed the Ministry of Justice, the original name let the cat out of the bag. Mr Blair had simply commandeered the constitution and put it on a par with immigration, defence procurement or the health service, to be managed on a routine basis as an act of governmental power. That is still the current policy, despite the misleading change of title. In fact, the offence has been compounded by the establishment in June 2009 of a Democratic Renewal Council – a surprising name, since its last recorded use was by a military junta.¹⁹ The effect was to transfer responsibility for changing the constitution from a ministerial department (which was bad enough) to a secret Cabinet committee. Yet how many people have heard of this arrangement? The press and public seem to have become utterly indifferent to these goings on.

What, then, is the Government up to? There is now some evidence of a Government plan – though it is not the one that the Government has announced. According to its own Green and White Papers, the guiding objective is to ‘rebalance power between Parliament and government’, to give Parliament a greater ability to hold government to account, and to surrender or limit powers that in a democracy should not be exercised exclusively by the executive.²⁰ No one would quarrel with that. In fact, it is exactly what we need. But in practice it is not happening. The Bill that resulted from the proposals relates chiefly to war-making and treaty powers, and to the management of the Civil Service. Those are steps in the right direction, but they fall far short of the announced objectives. The treaty provisions are too late to save us from Lisbon. The problem of special advisers is not to be tackled, and the Government has even rejected the advice of Lord Wilson that they should be forbidden to recruit, manage or direct regular civil servants.²¹ As to prerogative powers, it was already unlikely that a government would embark on major armed conflict without some form of parliamentary approval. The Iraq War actually gave rise to a proper seventeenth-century-style debate in the Commons; the problem was misinformation rather than the absence of debate. More significant are the prerogative powers that are still not subject to any scrutiny at all.²² A good example is the power to restructure government itself by abolishing ministries and setting up others – something the Government does without any public explanation or costing, let alone discussion.²³ This power is chiefly used not to increase efficiency but to favour or remove individuals or to secure votes in the Commons – there are now 120 ministers, and 40 per cent of Labour MPs are on the Government payroll. And it is exercised with such dizzying frequency that few ordinary people know what departments are called or what they do.²⁴

If we try to discern a guiding strategy from the Government's statements, we might conclude that it was the separation of powers. This is a newfound religion, not much revealed in Government scripture before 2003. But it provided a convenient excuse for the bungled attempt to abolish the office of Lord Chancellor, and it has borne fruit in the removal of the ultimate appellate jurisdiction from the House of Lords to the Supreme Court. Yet, whatever the merits of rehousing the highest court, no one could seriously suppose that this elaborate and expensive gesture – which was not properly planned²⁵ – has the slightest practical effect in relation to the separation of powers. Indeed, the first members of the new court are to retain their peerages, so that the theoretical (though imaginary) conflict of interest will be continued. As a piece of ill-conceived symbolism it is far outweighed by the reality of the less dramatic changes that have placed the courts budget under the control of an ordinary Government department, subject to competition with prisons, the probation service, tribunals, constitutional reform and anything else that might be transferred to it in further reshuffles, a department that will often be appearing as a party before the courts which it runs.²⁶ Unconscious of the incongruity, the Government announced that this reform would ‘strengthen further the already strong judicial–executive links’.²⁷ We might well conclude that the Supreme Court was an expensive diversionary tactic, drawing attention away from the actual movement in the contrary direction.

Real judicial independence is, of course, crucial; but here also the Government is pulling in the wrong direction. It would have been far better if the final decision on appointments had remained in the hands of an old-style Lord High Chancellor rather than a minister in the centre of the political arena, advised by a body that he appoints himself. The woolly language of section 1 of the Constitutional Reform Act 2005, which commendably purports to preserve judicial independence, does not apply to the appointment process and is not enforceable in the courts. All this matters, because the Government is far from neutral. A thread running through their proposals has been the desire to decrease emphasis on experience and achievement and to increase ‘diversity’. The Constitutional Reform Bill originally sought to give the Government power to redefine ‘merit’ for the purpose of judicial appointments, a proposal Lord Falconer was reluctant to give up. They now want to achieve a similar end by setting targets for the Appointments Commission, perhaps even quotas. This might make sense for lay magistrates; but if superior judges were chosen in order to fill quotas or represent sectional interests not only would it be patronising and insulting to minorities but, more importantly, it would destroy confidence in the judiciary. A superior judgeship is more than a mere job opportunity. If it is seen as a mere job, political appointments will be easier to make. And political appointments will soon be on the agenda. Ministers have indicated in the past a desire to have confirmation hearings, in which politicians can veto candidates; and the impetus for political control of this kind will only increase if judges are given more constitutional powers.²⁸

But the chief respect in which the Government does not really believe in a separation of powers is the relationship between the Government and Parliament. As Lord Scarman said in 1989, ‘We have achieved the total union of executive and legislative power which Blackstone foresaw would be productive of tyranny.’²⁹ Four years later, the Judicial Committee of the House of Lords actually equated the intention of Government spokesmen in the Commons with the intention of Parliament.³⁰ It was a natural mistake, given that Parliament is widely seen as merely applying its rubber-stamp to Government bills. Not that the lack of separation is in itself tyrannical. It has been an accepted feature of our constitution for at least a century that the Government may pass any legislation it wishes, provided it is not too shocking. Unfortunately, the broad principle operates whether or not the legislation is properly thought out, whether or not it rides roughshod over minorities or over long-acknowledged principles such as the rule of law, whether or not it has undesirable side-effects, whether or not there is adequate time for scrutiny or consultation and whether or not it is generally acceptable to the public or even to their elected representatives on the back benches. The inability of the House of Commons to hold the Government to account was actually recognised as a problem in the Governance of Britain White Paper, but not surprisingly the Government has shown little practical interest in finding a remedy.

The principal check is the House of Lords, to which I shall return. The House of Commons is almost completely ineffective. It is sometimes said that a back-bench member of Parliament has fulfilled his main function on the day he is elected, the purpose of the election being to determine the party which will form the Government rather than to impose any check on it once formed.³¹ Some apologists have argued for an invisible effectiveness, in that back-benchers are more inclined to revolt than they were 50 years ago.³² That is debatable, since it is known that former administrations took soundings before decisions were made, to avoid the potential embarrassment of open opposition to positions already taken. At any rate, there has been little sign of restraining influence in the constitutional sphere. Strong contrary evidence is provided by the infamous story of clause 11 (later clause 14) of the Asylum and Immigration Bill 2003. This provided that there should be no appeal or judicial review in respect of decisions by the new Asylum and Immigration Tribunal, whether for want of jurisdiction, error of law or breach of natural justice. This clause was opposed by Lord Irvine when Lord Chancellor because it was contrary to the tradition of the rule of law; and some suspect that his removal from office was related to this disagreement. It was the subject of strong attack by Professor Vernon Bogdanor, who said it was a ‘constitutional outrage, and almost unprecedented in peacetime’.³³ It was attacked publicly by the then Lord Chief Justice, Lord Woolf, in a lecture at Cambridge, after he and ‘other members of the judiciary’ had advised that the clause was ‘fundamentally in conflict with the rule of law’,³⁴ and also by another former Lord Chancellor, Lord Mackay, who said it was ‘obnoxious’.³⁵ It was condemned by the Constitutional Affairs Committee of the House of Commons as unprecedented; they said it was contrary to constitutional principle to remove judicial oversight of lower tribunals and executive decisions when life and liberty were at stake.³⁶ Alarmingly – and this is my point – none of this had any effect. The Bill passed the Commons, after a spirited debate in which no one but a junior minister spoke in favour and 35 Labour MPs voted against. It was only the threat by Lord Irvine himself to speak against it in the House of Lords that forced his successor to back down. I should make it clear that the controversy was not about asylum or immigration policy: it is perfectly legitimate to argue that the policy should be more ferocious, or even made to work, and the vast funds spent on immigration judges diverted to public welfare.³⁷ The dispute was about the rule of law.

The immediate outcome was satisfactory; but it was only a temporary respite. There have been several attempts in the last few years to confer arbitrary power on the Government, not only in emergencies but in everyday situations. We have rightly criticised the Bush administration over Guantánamo Bay, and yet the United States Supreme Court – fortified by the kind of English precedents Selden used – was at least able to override the Government and declare habeas corpus inviolate and available to aliens.³⁸ It is ironic to reflect that those precedents count for nothing here, since in England it is the convention that common law cannot override a statute.³⁹ We now have several Terrorism Acts,⁴⁰ which have caused considerable tension with the rule of law as we know it, and even tougher measures may be in train. Traditional modes of trial are in danger; and the more serious the charge, the lower (some say) should be the standard of proof. But the problems caused by terrorism have at least received a good deal of public and judicial scrutiny, and I will not pursue them now.

Not limited to terrorism, however, was the Civil Contingencies Act 2004, a project modelled on the wartime Defence of the Realm Acts⁴¹ but of almost unprecedented scope in peacetime.⁴² Among other things, the Bill would have empowered a secretary of state to take emergency powers to do anything that could be done by Act of Parliament, including the requisitioning and destruction of property without compensation, and the prohibition of ‘movement’ and assemblies; to create an offence of failing to comply with his regulations; and to establish an ad hoc criminal tribunal to try offenders. There were several provisions for ministers to ‘disapply’ sections of the Act itself.⁴³ Much of this was watered down before it became law – but it was a serious warning of what powers the Government would like to possess. The Government declined a request to insert a sunset clause: emergency is no longer a finite event.⁴⁴ And it declined to exempt legislation of major constitutional importance from the disapplication clause.

I am quite prepared to accept that extreme measures would be needed to cope with, say, a nuclear attack on London. But neither the Bill nor the Act as passed was confined to nuclear attacks, or air raids on the Palace of Westminster. The Act, as passed, applies to any ‘emergency’ – defined as an event or situation that threatens serious damage to human welfare, the environment or national security; and the Government clearly believes that such emergency measures apply to economic emergencies such as bank failures.⁴⁵ It is not confined to terrorist acts but includes any loss of life, illness, homelessness, damage to property or human welfare, and disruption of communications and transport. As if this definition was not wide enough, the Bill would have enabled a minister to extend it – that is, extend the scope of the statute itself – by statutory instrument.

It has become fashionable to speak of clauses such as the power-to-rewrite clause in the 2004 Bill as Henry VIII clauses, though in fact they have little or nothing to do with the Tudor period.⁴⁶ The first example of a Henry VIII clause occurs in the Local Government Act 1888,⁴⁷ and such clauses were still sufficiently uncommon in 1929 to provoke the then Lord Chief Justice to warn of the New Despotism which they threatened.⁴⁸ It is only in very recent times that they have been widened to empower ministers to rewrite parliamentary legislation as they think fit.

A disturbing example occurred in 2006, when the Government attempted in the Legislative and Regulatory Reform Bill to sideline Parliament quite independently of any ‘emergency’. The Government sought to give its ministers the power to amend, repeal or replace any Act of Parliament simply by making an Order.⁴⁹ This was said to be potentially helpful in reducing red tape. That sounded wonderful: we all want to reduce red tape. The press and the Opposition were taken in and did not notice the small print, and the Government almost got away with it. The sheer enormity of the proposition was drawn to public attention by a letter written to The Times on 16 February 2006 by six Cambridge law professors.⁵⁰ Some of its defenders thought the offending clause was just a result of over-zealous draftsmanship, that it really was primarily intended to reduce red tape. It was nothing of the kind. If it had been, the Government would have accepted amendments. Instead, they fought hard to defend the indefensible and even refused to insert safeguards for fundamental liberties. The letter-writers had the honour of being denounced by Lord Lipsey in the House of Lords as six silly professors who were not living in the real world.⁵¹ Yet this was not even a Henry VIII clause, as understood in 1929; it was more like the Enabling Law of 1933. The House of Lords Constitution Committee woke up to what was happening, and said that the Bill would markedly alter the respective roles of Minister and Parliament.⁵² Even then, the Government was minded to push ahead, offering the assurance that it would not abuse the new power. That, of course, is the moment to worry – when a Government says, ‘Trust us, we don't need a constitution any more: we are so righteous that we will never do anything wrong.’ That was exactly how the Enabling Law was presented to the Reichstag on 23 March 1933: ‘The Government will use these powers only in so far as they are essential for carrying out vitally necessary measures. The number of cases in which a necessity exists for having recourse to such a law is very limited.’⁵³ I do not suggest that constitutions can prevent tyranny; they can, however, facilitate it.⁵⁴

In 2006, fortunately, we were saved – saved by the threat that the House of Lords would scupper the Bill. Notably it was the Lords and not the Commons that served to protect Parliament. And that, I suppose, was another nail in their coffin. The underlying lesson was not absorbed in the corridors of power, and things have not changed under Mr Brown and Mr Straw. For example, clause 55 of the present Constitutional Reform and Governance Bill⁵⁵ provides that a Minister may by statutory instrument make any provision that he or she considers appropriate in consequence of the Act, and that such an Order may ‘amend, repeal or revoke any provision made by or under an Act’ – that is, any other Act. So Ministers now seek the power even to rewrite constitutional statutes. These clauses are now installed in Government computers, and they are given a little stretch each time they are dropped into place.⁵⁶ There are also more concealed varieties, such as that under which the Home Secretary recently sought to confer sweeping new powers on local authorities under the Proceeds of Crime Act.⁵⁷ At best, these clauses acknowledge that statutes prepared with haste need constant rewriting; but it is a high price to pay for sloppiness, since it prevents proper scrutiny and avoids professional draftsmanship.⁵⁸ Even where powers are subjected to the affirmative resolution procedure, there is no possibility of amendment and the time for debate is minimal. Nor is the availability of judicial review a satisfactory solution,⁵⁹ since only those who can afford litigation in the High Court will be able to find out which Orders are valid and which not. At any rate, we now know what the Government means by ‘rebalancing power’ between the executive and Parliament. There is enough similar-fact evidence to prove a deliberate programme of shifting power towards the executive.

Some of these problems have no legal solution under our present constitution. They were avoided in the past by those conventions that existed in hearts and minds and habits. Since these no longer count for anything, we have all been reflecting on the desirability of a written constitution. The Government is against this, so there has been another diversionary tactic in the form of proposals for a new Bill of Rights, announced in a press leak in March 2009. The first proposal concerned a range of ‘civil and political rights’, few if any of which are inherently controversial. But the effect of putting them into a new statute would be to create a parallel and possibly conflicting human-rights regime with no obvious purpose – unless, of course, the United Kingdom can be somehow disconnected from Luxembourg. It is then proposed to insert ‘Responsibilities’ as well; but, since these are already part of the law, their inclusion in a separate document, in different language, has no obvious constitutional significance and could only cause legal confusion.⁶⁰ More than confusion is threatened by threats to add a new range of ‘economic and social rights’. These are found in some other constitutions, but they are not so much legal rights as political aspirations. Fundamental rights are those which no government can lawfully take away. These new ‘rights’ are not yet in existence but are goals that the Government hopes to reach some day, when it can afford to. Now, there is no harm in announcing political goals, especially when they are essentially laudable; but it has nothing to do with constitutional change. It belongs to the same category of law reform as the Fiscal Responsibility Bill, which would halve the national deficit by legislative magic,⁶¹ just as one might reduce the crime rate by abolishing crimes. Misusing the language of rights, however, is potentially dangerous nonsense on stilts on skates. Even though the rights would not be directly justiciable, judges would be able to take account of them in assessing ‘the reasonableness of the measures taken to achieve their progressive realisation’.⁶² This would introduce a new kind of law, empowering the judges to exercise an essentially non-legal function of unknown scope. If they are to be given such a broad role, then it needs much more public debate. It ought not to slip into being unnoticed beneath the cloak of vague aspirational rights to which, as abstract propositions, most people would happily subscribe.

The principal question is not whether we should have another Bill of Rights, let alone a Bill of Hopes and Duties, but whether we should have a true written constitution with judicial review of legislation to ensure compliance. It is perhaps a purely academic question in Britain, since no government is likely to agree to confer such a power on judges, and the present Prime Minister has ruled it out as undemocratic.⁶³ But there is another way in which it could happen. Lord Millett argued on the wireless in April 2004 that introducing a separation of powers would inevitably, if unintentionally, hasten the end of parliamentary sovereignty; and similar ideas have been mooted by other senior judges.⁶⁴ If the Government can abandon the conventions of an unwritten constitution, so (in a suitable case) might the judges. Sovereignty of Parliament, it is argued, is no more than a convention. And did not judicial review in the United States of America come about through judicial decision?⁶⁵ That could be the next stage in our creeping revolution, 400 years after Dr Bonham's Case.⁶⁶ But it would be a desperate and unwelcome last resort rather than a satisfactory solution, since the judges would be enforcing an unwritten constitution of uncertain scope.

Until the last few years, I was myself wholly averse to the idea of a written constitution, with a supreme court having the power of judicial review, because it would turn unelected judges into legislators. Written constitutions have a mythical quality about them, and it is surprising how many people assume they are much clearer than unwritten constitutions. In practice, the function of a written constitution is not so much to improve the clarity of the rules as to empower the highest court to strike down legislation according to its interpretation of the wording. The question is therefore whether the time has come to transfer more power to the judges, on the footing that the political constitution has broken down beyond repair. This is far from straightforward, since we cannot assume that the traditional juristic standards of the judiciary will be maintained once they have a political role. The problem is not merely that judges are unelected – and introducing elected judges is not a recommended solution to that problem – but that the judicial role is different from that of the policy-maker responsible for raising and spending revenue. The case for increasing the power of the judges is that they have tenure, which gives them independence, and that they are trained to pick apart arguments in an informed and dispassionate way. But courts are not best suited to decide on the allocation of finite public resources, especially in the context of disputes inter partes in which other claims on those resources are not represented. Judges think in absolute terms, they are not apprised of the whole economic picture, and they are not politically answerable for the consequences of their decisions.⁶⁷

Despite these misgivings, we have to face the question, now that our unwritten constitution has been unravelled, whether judicial review might not be the lesser of two evils. We would not have to follow the American model, on which no-one is very keen. There is much to be said for a weaker model, such as the Canadian, under which the highest court can annul legislation but subject to a power (little or never used in reality) for the legislature to reinstate it non obstante for a limited period. We have an even weaker model ourselves under the Human Rights Act, under which the judges can declare legislation incompatible with the code without invalidating it. I would suggest that the key to any acceptable model is that it ought not to empower or allow judges to second guess the legislature on issues of policy requiring taxation or coercion. Judicial review of legislation should ideally operate more like judicial review of administrative action: that is, it should enquire whether the legislature has acted consistently and fairly, has taken proper account of relevant factors and has not taken improper account of irrelevant factors; but it should not substitute the judges' decision on the merits for that of the decision-maker. Nowadays there is a wide perception, right or wrong, that the courts are inclined to overuse their powers under the Human Rights Act and to take the political decisions themselves. That has been a major failing of the Court of Justice in Strasbourg, and there is no guarantee that our new Supreme Court will not be tempted to move further in the same direction. We therefore need more reflection on how to define the proper judicial function, how to draw the line between fundamental law and politics. It is far from easy or obvious. To whom, for instance, does it belong to define life and death, or marriage or a person's gender? A constitutional ‘right to life’ might seem to empower judges to decide when life begins and ends. But, if in a plural society we no longer defer to Christian canon law, it ceases to be clear whether such a question is soluble purely by legal reasoning. The same is true of many other issues seen as fundamental. We should therefore think very carefully before rushing ahead with a codified written constitution. Without first achieving some kind of consensus on the range of matters on which we would be content for judges to override Parliament, perhaps against the wishes of most of our fellow citizens, it would be premature to lock ourselves into a system of judicial review.

It may in any case be questioned whether a written constitution is the best way in practice to solve the kind of constitutional problems that I have outlined. Human rights are comparatively easy. We already have a written code of human rights, though it is not entrenched and already there are moves to amend it. Some think it is better that way. Fundamental laws are admirable in the abstract. The problem with them is that when codified they become absolutes, and absolute law without exceptions for common sense, equity, local conditions or changed circumstances is often bad law. We have learned that from the Strasbourg experience. Fundamental rights should be kept to a minimum rather than constantly enlarged, and should be open to reinterpretation. The principal case for entrenching them, or some of them, is that it might make it possible for the Supreme Court to reject European legislation that contravened British principles of justice.⁶⁸ Universal human rights were, of course, invented in England,⁶⁹ but they mean different things to different people, and it would not be easy to entrench other English common-law rights, which the European powers would take away, without unduly hampering future parliaments from making minor adjustments.⁷⁰

Enshrining the structure and mechanics of government in a written document would raise problems of a different kind. It would be virtually impossible to codify all the present conventions of the British constitution, especially those that relate to political parties, or the Cabinet, even if it could be decided which of them still exist.⁷¹ This is partly because they operate more like equity, or fictions, than rules of law. For instance, the mind boggles at any attempt to codify the present procedures for producing a Prime Minister, covering every eventuality. ⁷² Entrenched legislation could perhaps tackle some of the specific problems I have mentioned.⁷³ But to that end there would be no necessity to set the whole constitution in stone, an exercise which might result in too much rigidity and prolixity. A line would have to be drawn between form and substance: would the electoral system, for instance, or the size of the two Houses of Parliament, have to be enshrined in the constitution?⁷⁴ And there might have to be different degrees of entrenchment for different levels of constitutional provision, so that special procedures of different kinds would have to be followed for changing them. In choosing between models, we are brought back to the absence of any proper machinery for going about it. It certainly cannot safely be left to the Democratic Renewal Council.

A better place to start a true constitutional renewal would be the House of Commons itself, since prevention is better than cure. This is now widely accepted by everyone except the Government,⁷⁵ which has repeatedly shelved the issue. The use of Select Committees has proved one of the most fruitful reforms of the last 30 years, and it is a shame that the wisdom produced by the committees is so difficult for outsiders to access. Their proper role is not to challenge or seek to change policy, but to scrutinise, warn and criticise. In performing those vital roles they need to be given more clout, with chairmen elected by secret ballot and with independence from the whips; and perhaps we can learn from Scotland, where they are said to be more effective. Another desirable change that seems to be generally agreed is that the Government should lose its absolute control over the management of business in the Commons.⁷⁶ The Commons ought also to take back its audit functions, by discussing estimates and controlling supply. Some way of capping the volume of legislation is desperately needed, helped perhaps by a more liberal use of the ‘sunset clause’⁷⁷ – a true Henry VIII clause, much used in his time – or by requiring a periodic review of the effectiveness of new measures.⁷⁸ None of this forms part of the Government's ‘renewal’ policy; but it is much to be hoped that the present atmosphere of popular disillusionment with the functioning of Parliament will force some improvement in the near future.

For the present, the most effective check on legislation is the House of Lords – effective because its members have tenure and are free to ignore the party whip. Although Labour peers now constitute the largest party in the House, peers have on several hundred occasions in the past decade followed their consciences, or their good sense, to thwart the Labour Government in a way that members of the Commons would consider politically or financially risky. There is therefore a true separation of powers here, even if the powers were severely reduced in 1911. By a curious reversal of history, the House of Lords has become the principal defender of constitutional liberties, and arguably the more significant legislative chamber, albeit at the cost of endangering its own existence. Having been made more politically correct by the removal of most of the hereditary element in 1999, it has gained confidence; but the sorry consequence is that, in Government thinking, it must be made less politically effective. The future of the Lords is, in my submission, the paramount constitutional concern today. Without an effective, independent upper chamber, the entire High Court of Parliament is in danger of becoming fossilised, a magnificent heritage site with no function.

On 7 March 2007 the Commons voted to ignore the conclusions of the Royal Commission of 2000 on the House of Lords and press for an elected (or at least 80 per cent elected) house of senators, composed chiefly of full-time politicians with limited tenure; a few days later the Lords voted (by 361 to 121) in favour of a 100 per cent appointed chamber. Mr Straw subsequently announced his determination to push through the wishes of the Commons, apparently in the (seriously mistaken) belief that this is the course required in a democracy.⁷⁹ Even if such a course is not actually illegal,⁸⁰ this is another disturbing example of the Government's inability or unwillingness to understand what a constitution is for. How can it be the business of the Commons to tamper with the only effective control on their power? It would never happen in a country with a written constitution – that is, most other countries – but, alas, our constitution provides no specific guidance to those who choose to distort it.

The merits were fully considered by the Royal Commission ten years ago and seemed then to fall on the side of an appointed or largely appointed House. Those of us outside the political class can see that popular elections for the entire House of Lords, even if not tied to general elections for the Commons, are likely to give both houses a similar political constitution and almost certain to make the Lords a clone of the Commons in a more insidious way.⁸¹ The conditions of appointment would only attract those who are already politicians – many of whom would doubtless find a salaried seat in the Lords more congenial than the tedious constituency work that now falls to a member of the lower house. The important element of membership with experience of the real world would be squeezed out,⁸² as would the present social diversity of peers. The House would be enslaved by party politics and its valuable function of taking the wider view endangered. Why is this thought necessary or desirable? There is no democratic reason why all the Lords should be elected. Granted that an elected government is entitled to have its policies passed into legislation, it does not follow that the product should be rough or unworkable or unconstitutional; and it is in everyone's interest that problems be ironed out before a bill is passed rather than pursued in the courts afterwards. Unquestionably, there are grave objections to the present process of nomination to the Lords, which has all too often been used to ennoble second-rate or unseated politicians: the kind of people who might pay for peerages or take cash for questions, or even a Speaker who has been effectively ejected from office. Setting up an independent appointments commission would not be without difficulty,⁸³ though there is an informal model already in place; whatever the difficulties, any sensible system of appointment would seem preferable to general election.⁸⁴

I have only been able to touch on a few of the myriad questions that have been stirred by the constitutional turmoil in the years leading up to this lecture. But a general observation I should like to underline is that they are interrelated. Most important of all, the question whether we need a written constitution, and more power vested in judges, is directly and necessarily connected with what happens to the House of Lords and the political constitution.⁸⁵ There is little indication in the Government's approach of any coherent strategic vision, and perhaps that is an inevitable consequence of our constitutional arrangements. Yet much of the recent activity seems to have been a result of short-term expediency: abolish the office of Lord Chancellor as a clever way of removing Lord Irvine, weaken and politicise the House of Lords because it has proved vexatious, scatter ‘power to change law’ clauses in bills to save the bother of careful draftsmanship. Typical of this approach was the Parliamentary Standards Bill, rushed through Parliament in July 2009 to appease journalists on the expenses front, with no awareness of the wider constitutional implications, which were only pointed out in the nick of time.⁸⁶

If there is to be constitutional reform, there ought to be some new mechanism, independent of Government, and of the House of Commons, to consider it as a connected whole. The House of Commons Justice Committee, in its report of 21 July 2009, proposed a constitutional convention;⁸⁷ and that might well be the best solution, however problematic its own constitution and authority might be.⁸⁸ But it should not be expected to deliver results within a short timetable.⁸⁹ The mad rush over recent years has proved to be the wrong approach.⁹⁰ Constitutions must rest on a broad consensus, and we are some way from having any kind of consensus as to what is required. No independent convention will reach agreement at its first meetings. Indeed, it might be advisable to begin with a Royal Commission to prepare the ground and frame the questions.⁹¹ A convention should also resist the temptation to redesign the constitution from scratch, in minute detail. Since the reality is that whatever is proposed would need Government support, the effect would be to offer dozens of proposals from which ministers could choose the easy ones while shelving the important ones. And it should be borne in mind that unduly radical changes would divide moderate opinion so as to prevent acceptance. The best way ahead is to seek a broad consensus on the big questions.

In connection with consensus, I would end with the observation that no sensible progress can be made without a greater public awareness of constitutional matters and involvement in the debate.⁹² The hearts and minds must be re-engaged. Politicians no doubt suspect that there is not much doorstep interest in questions that may seem abstract or academic, and no political profit to be gained from pursuing them.⁹³ Mr Blair famously tried to put down Mr Hague in the House of Commons in 2000 by saying: ‘I don't know whether people in his pubs and clubs are talking about pre-legislative scrutiny, but they are not in mine. These are good issues for academics and constitutional experts, but they are not the big issues that Parliament should debate.’⁹⁴ This absence of basic awareness has suited the Government well and has been reflected in the press, which – despite the acuity of many individual journalists – feeds the public appetite for personal scandals and no longer seriously reports parliamentary debates, let alone Select Committee reports. When a Lord Chancellor's wallpaper can attract as much media attention as the abolition of his office, it is hardly surprising that the sordid but titillating business of outrageous expenses claims should fill more column inches than the far more important constitutional questions currently hanging over us. Yet busy citizens, such as lawyers, have no time to delve into the recesses of the Internet on a regular basis to find out what is going on, and so the response to White Papers has been quantitatively thin. It is not that intelligent people are not interested; I have found from giving public lectures on the subject that there is actually great interest and concern among lawyers and the lay public alike. But most people simply do not know enough, in detail, about what is happening, and it is all happening too fast. The lack of awareness is also the fault of our educational system. What can the long struggle between the Crown and the Commons, the Petition of Right, habeas corpus, and all those things that were in the bloodstream of Selden's contemporaries, mean to a generation that has studied no history before 1914 or to lawyers who have studied no constitutional history before 1972?

It may be too late to reverse the present revolution, which has happened so fast that we have all been left gawping. Optimists may be pleased by that; there are always those who enjoy seeing inveterate institutions ‘shaken up’ and who prefer rapid change (whatever it is) to slow evolution. Some of the reforms have indeed been desirable. My own chief concern is not with change as such, but with the dismal reflection that we no longer have a constitution – in the sense of a set of conventions and practices that define the bounds of executive power and keep the government within those bounds, conventions and practices that – though unwritten and flexible – can be abandoned only by general consensus and after careful thought. The consensus of the last century or more has ended, and the Government has stormed into the void, constantly tinkering with constitutional arrangements as a routine exercise of power and without much regard to the consequences. I expect some people will think me a silly professor, an alarmist, to voice such a complaint.⁹⁵ Life still goes on more or less as normal. We are still free to air our views in public, and we do not have friends who have been incarcerated for expressing their opinions (as Selden was), let alone eliminated. But constitutional slippage is highly dangerous; for when power is allowed to become unlimited and unbalanced, the lessons of history are, I would suggest, alarming.