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What's Left of the Political Constitution?

Published online by Cambridge University Press:  06 March 2019

Adam Tomkins

Abstract

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This paper argues that we should move on from what has become a rather outdated contrast between the political constitution and the legal constitution. Taking as its focus the constitution of the United Kingdom, the paper analyzes the contemporary constitutional order as a mixed system of politics and law combined. It argues that such a mix may be a more compelling and attractive system than either the model of the political constitution or that of the legal constitution.

Type
Part II: The Relationship Between the Courts and Political Institutions
Information
German Law Journal , Volume 14 , Issue 12: Special Issue—Political Constitutions , 01 December 2013 , pp. 2275 - 2292
Copyright
Copyright © 2013 by German Law Journal GbR

Footnotes

*

John Millar Professor of Public Law, University of Glasgow, [email protected].

References

1 This is an essay on the constitution and public law of the United Kingdom; it is not an exercise in transcendental constitutionalism or in global constitutional theory. The British debate between political and legal constitutionalists is primarily concerned with how—and by whom—executive powers are best held to account. Its main focus is not on arguments about the extent to which primary legislation should be subject to judicial review.Google Scholar

2 See Adam Tomkins, Public Law 1–24 (2003); Adam Tomkins, Our Republican Constitution 1–25 (2005).Google Scholar

3 See Hickman, Tom R., In Defence of the Legal Constitution, 55 U. Toronto L.J. 981 (2005); Graham Gee & Grégoire C.N. Webber, What Is a Political Constitution?, 30 Oxford J. Legal Stud. 273 (2010).CrossRefGoogle Scholar

4 The “mixed constitution” is an old phrase, and I do not mean to use it in the way in which it was understood in the eighteenth century. For example, I am not referring to that ancient mix of monarchy, aristocracy, and democracy that Blackstone, par excellence, identified as animating the Anglo-British constitution. I am referring to the contemporary mix of politics and law.Google Scholar

5 See Sec'y of State for the Home Dep't v. Pankina, *2010+ EWCA (Civ) 719, [2011] Q.B. 376 (Eng.).Google Scholar

6 See Tomkins, Adam, What is Parliament For?, in Public Law in a Multi-Layered Constitution 53 (Nicholas Bamforth & Peter Leyland eds., 2003).Google Scholar

7 See Tomkins, Adam, The Rule of Law in Blair's Britain, 26 U. Queensland L.J. 255 (2007).Google Scholar

8 See Jonathan Sumption Q.C., F.A. Mann Lecture, Judicial and Political Decision-Making: The Uncertain Boundary (2011). Mr. Sumption (as he was when he delivered this lecture) is now a Justice of the U.K. Supreme Court.Google Scholar

9 See generally Philip Cowley, The Rebels: How Blair Mislaid His Majority (2005).Google Scholar

10 Terrorist Asset-Freezing etc. Act, 2010, c. 38 (U.K.).Google Scholar

11 Public Bodies Act, 2011, c. 24 (U.K.).Google Scholar

12 Health and Social Care Act, 2012, c. 7 (U.K.).Google Scholar

13 Welfare Reform Act, 2012, c. 5 (U.K.).Google Scholar

14 Legal Aid, Sentencing and Punishment of Offenders Act, 2012, c. 10 (U.K.).Google Scholar

15 See 10 February 2011, 523 Parl. Deb., H.C. (6th ser.) (2011) 493–586 (U.K.).Google Scholar

16 See, e.g., the following debates in the House of Lords on the Justice and Security Bill: 19 June 2012, Parl. Deb., H.L. (5th ser.) (2012) 1659–95 (U.K.); 11 July 2012, Parl. Deb., H.L. (5th ser.) (2012) 1162–83 (U.K.); 17 July 2012, Parl. Deb., H.L. (5th ser.) (2012) 120–44 (U.K.); 21 Nov. 2012, Parl. Deb., H.L. (5th ser.) (2012) 1811–47 (U.K.).Google Scholar

17 See House of Commons Welsh Affairs Committee, The Implications for Wales of the Government's Proposals On Constitutional Reform, 2010–12, H.C. 495 (U.K.).Google Scholar

18 See House of Commons European Scrutiny Committee, The EU Bill and Parliamentary Sovereignty, 2010–12, H.C. 633 (U.K.).Google Scholar

19 See Joint Committee on Human Rights, The Justice and Security Green Paper, 2010–12, H.L. 286, H.C. 1777 (U.K.). The Justice and Security Act 2013 is considerably more restrained than were the Government's original proposals.Google Scholar

20 Laws, Sir John, Law and Democracy, 1995 Pub. L. 72.Google Scholar

21 R (Jackson) v. AG, [2005] UKHL 56, [2006] 1 A.C. 262.Google Scholar

22 See, e.g., R (Animal Defenders Int'l) v. Sec'y of State for Culture, Media & Sport, *2008+ UKHL 15, *2008+ A.C. 1312 (H.L.) *81+ (“Parliament in the context of the overall scheme of the 2003 Act for control of the content and nature of political broadcasting, acted within the ambit of the discretionary judgment available to it in introducing and maintaining the prohibition on political advertising …”).Google Scholar

23 AXA Gen. Ins. v. Lord Advocate, [2011] UKSC 46, [2012] 1 A.C. 868 [49]. Such deference will apply to questions of legislative reasonableness, but subordinate Parliaments must of course act strictly within the limits of their legal powers, which is quite rightly a question of law, not a question of political judgment. See Imperial Tobacco v. Lord Advocate, [2012] UKSC 61, 2013 S.C. (UKSC) 153.Google Scholar

24 Robinson v. Sec'y of State for N. Ir., [2002] UKHL 32.Google Scholar

25 See Imperial Tobacco v. Lord Advocate, [2012] UKSC 61, 2013 S.C. (UKSC) 153.Google Scholar

26 Human Rights Act, 1998, c. 42, § 4 (U.K.). In this essay, the term “Convention rights” means those rights of the European Convention on Human Rights given domestic legal force in the UK by the Human Rights Act 1998.Google Scholar

27 Id. at § 3.Google Scholar

28 Compare RB (Algeria) v. Sec'y of State for the Home Dep't, *2009] UKHL 10, [2010] 2 A.C. 110, with Othman (Abu Qatada) v. United Kingdom, ECHR App. No. 8139/09, 55 Eur. Ct. H.R. 1 (2012). Compare R (Al-Jedda) v. Sec'y of State for Defence, [2007] UKHL 58, [2008] A.C. 332, with Al-Jedda v. United Kingdom, ECHR App. Nos. 26766/05 & 22228/06 53 Eur. Ct. H.R. 23 (2011). Compare R (Al-Skeini) v. Sec'y of State for Defence, *2007] UKHL 26, [2008] 1 A.C. 153, with Al-Skeini v. United Kingdom, ECHR App. No. 55721/07, 53 Eur. Ct. H.R. 18 (2011). Compare R (Gillan) v. Comm'r of Police of the Metropolis, *2006] UKHL 12, [2006] 2 A.C. 307, with Gillan v. United Kingdom, ECHR App. No. 4158/05, 50 Eur. Ct. H.R. 45 (2010).Google Scholar

29 HM Treasury v. Ahmed, [2010] UKSC 2, [2010] 2 A.C. 534. See Terrorist Asset-Freezing etc. Act, 2010, c. 38 (U.K.) (establishing provisions for imposing financial restrictions on “certain persons believed or suspected to be … involved in terrorist activities”).Google Scholar

30 Al Rawi v. Sec. Serv., [2011] UKSC 34, [2012] 1 A.C. 531.CrossRefGoogle Scholar

31 See Justice and Security Act, 2013, c. 18 (U.K.).Google Scholar

32 Tomkins, Adam, The Role of the Courts in the Political Constitution, 60 U. Toronto L.J. 1 (2010).CrossRefGoogle Scholar

33 I cited the decisions of the House of Lords in the following cases as examples of when I think the courts should have gone further in this regard: RB (Algeria) v. Sec'y of State for the Home Dep't, *2009] UKHL 10, [2010] 2 A.C. 110; Austin v. Comm'r of Police of the Metropolis, *2009+ UKHL 9, *2009+ 1 A.C. 564; R (Bancoult) v. Sec'y of State for Foreign and Commonwealth Affairs, [2008] UKHL 61, [2009] A.C. 453; R (Corner House) v. Dir. of the Serious Fraud Office, [2008] UKHL 60, [2009] 1 A.C. 756; R (Al-Jedda) v. Sec'y of State for Defence, *2007+ UKHL 58, *2008+ A.C. 332; R (Gillan) v. Comm'r of Police of the Metropolis, *2006+ UKHL 12, [2006] 2 A.C. 307. In three of these cases the verdict of the House of Lords has now been overturned in Strasbourg: Gillan, Al Jedda, and RB (Algeria). As indicated above, I welcome the more recent decisions of the UK Supreme Court in Ahmed [2010] UKSC 2 and Al Rawi [2011] UKSC 34, as applications of the principle that I was seeking to outline.Google Scholar

34 Tomkins, supra note 32, at 6.Google Scholar

35 I examined the decision of the House of Lords in R (Gillan) v. Comm'r of Police of the Metropolis, *2006] UKHL 12, [2006] 2 A.C. 307 as a leading example of the courts’ failure to undertake this task responsibly. That decision was subsequently overturned in Strasbourg, albeit on different grounds. The result is that Parliament changed the law. See the provisions of the Protection of Freedoms Act 2012, repealing and replacing with fresh—and more narrowly defined—powers the stop-and-search provisions of the Terrorism Act 2000: Protection of Freedoms Act, 2012, c. 9 (U.K). It is to be noted that the political constitution got to the right result here both more quickly and more convincingly than the courts ever did—Strasbourg included.Google Scholar

36 Tomkins, supra note 32, at 7.Google Scholar

37 I cited R (Bancoult) v. Sec'y of State for Foreign and Commonwealth Affairs, *2008+ UKHL 61, *2009+ A.C. 453 as an example of where the courts failed to do this—as Lord Mance argued in his compelling dissent in that case. Again, HM Treasury v. Ahmed, [2010] UKSC 2, [2010] 2 A.C. 534 and Al Rawi v. Sec. Serv., [2011] UKSC 34, [2012] 1 A.C. 531 are more recent examples of where the Supreme Court performed this task well.Google Scholar

38 I cited R (Begum) v. Denbigh High Sch., [2006] UKHL 15, [2007] A.C. 100, Belfast City Council v. Miss Behavin’ Ltd., [2007] UKHL 19, [2007] 1 W.L.R. 1420, and R (Animal Defenders Int'l) v. Sec'y of State for Culture, Media & Sport, [2008] UKHL 15, [2008] A.C. 1312. I made clear that my gripe was not that the House of Lords got the proportionality assessment wrong in these cases, but that the proportionality assessment was deemed to be a task suitable for judicial assessment at all. Tomkins, supra note 32, at 7.Google Scholar

39 Craig, Paul, Political Constitutionalism and the Role of the Courts: A Response, 9 Int'l J. Const. L. 112 (2011). Professor Craig's response draws on and develops his earlier critique of my work. Paul Craig, Political Constitutionalism and Judicial Review, in Effective Judicial Review: A Cornerstone of Good Governance 19, 19–42 (Christopher Forsyth et al. eds., 2010).Google Scholar

40 Human Rights Act, 1998, c. 42 (U.K.).Google Scholar

41 European Convention for the Protection of Human Rights and Fundamental Freedoms, Sept. 3, 1953, 213 U.N.T.S. 221.Google Scholar

42 Serious challenges, but not insurmountable ones, and certainly not fatal ones. See further below.Google Scholar

43 See Laws, supra note 20.Google Scholar

44 Craig, supra note 39, at 118.Google Scholar

45 Tomkins, supra note 32.Google Scholar

46 Id.Google Scholar

47 Further, just because the European Court of Human Rights ruled in Smith & Grady v. United Kingdom, ECHR App. Nos. 33985/96 & 33986/96, 29 Eur. Ct. H.R. 493 (1999), that the Court of Appeal's use of Wednesbury unreasonableness in R v. Sec'y of State for Defence, ex p. Smith, *1995+ EWCA (Civ) 22, *1996+ Q.B. 517 was insufficient to meet the requirements of the right to an effective remedy in Article 13 ECHR does not mean to say that courts in the UK are now required in all circumstances to engage in full proportionality analysis. There are any number of ways in which the Court's ruling in Smith & Grady could be accommodated, confined, or distinguished.Google Scholar

48 See Adam Tomkins, Our Republican Constitution 20 (2005).Google Scholar

49 More difficult is the case where the statute confers powers on the minister leaving their scope or proper purpose unclear. I suggested in The Role of the Courts that in such cases the courts should refer the matter back to Parliament for the legislature to clarify what it meant. Tomkins, supra note 32, at 20–21. For an instance where this could have been valuable, see R v. Sec'y of State for Health, ex p. Keen, *1990+ COD 371, (1990) 3 Admin LR 180.Google Scholar

50 Gillan v. United Kingdom, ECHR App. No. 4158/05, para. 45, 2010 Eur. Ct. H.R. 28.Google Scholar

51 Smith, & Grady v. United Kingdom, ECHR App. Nos. 33985/96 & 33986/96, para. 87, 1999 Eur. Ct. H.R. 493.Google Scholar

52 I take reasonableness and rationality to be synonymous with one another.Google Scholar

53 Some of the power is exercised by office-holders independent or semi-independent of government, such as the police or regulatory agencies; in the UK this is a matter for Parliament to determine in legislation.Google Scholar

54 Colin Turpin & Adam Tomkins, British Government and the Constitution 566–660 (7th ed. 2011).Google Scholar

55 See Fixed-term Parliaments Act, 2011, c. 14, § 2(3) (U.K.).Google Scholar

56 Two recent examples are cited above: HM Treasury v. Ahmed leading to the Terrorist Asset-Freezing etc Act 2010 and Al Rawi v. Security Service leading to the Justice and Security Act 2013. See supra notes 29–31 and accompanying text.Google Scholar

57 One area of public law in the United Kingdom which is currently imbalanced—or where the current balance is plainly wrong—is that of prisoners’ right to vote. The decision of the European Court of Human Rights in Hirst v. United Kingdom (No 2), ECHR App. No. 74025/01, 2005 Eur. Ct. H.R. 681 is a perfect case-study of how not to rule on proportionality, as Strasbourg implicitly recognized when it modified Hirst in Scoppola v. Italy (No 3), ECHR App. No. 126/05, 2012 Eur. Ct. H.R. 868.Google Scholar

58 Just a note on stability: To suggest that the attainment of a reasonable degree of constitutional stability is a worthy goal does not mean to say that we should not continue to facilitate and, indeed, encourage argument, contestation, and debate about further constitutional reform. Stability is not the same as rigidity. One can be in favor of constitutional stability without having to advocate that the constitution should be put beyond politics, or should be somehow fixed or frozen.Google Scholar

59 R v. Sec'y of State for the Env't, Transp. & the Regions, *2001+ UKHL 23, *2003+ 2 A.C. 295.Google Scholar

60 R (Animal Defenders Int'l) v. Sec'y of State for Culture, Media & Sport, *2008+ UKHL 15, *2008+ A.C. 1312.Google Scholar

61 AXA Gen. Ins. v. Lord Advocate, [2011] UKSC 46, [2012] 1 A.C. 868.Google Scholar

62 See R (Jackson) v. AG, [2005] UKHL 56, [2006] 1 A.C. 262, paras. 102, 107, 159.Google Scholar

63 Tom Bingham, The Rule of Law 162 (2010); Lord Neuberger M.R., Lord Alexander of Weedon Lecture: Who are the Masters Now? para. 42 (Apr. 6, 2011).Google Scholar

64 Thoburn v. Sunderland City Council, [2002] EWHC 195, para. 65; European Union Act, 2011, c. 12, § 18 (U.K.).Google Scholar

65 After ten months of wrangling, the UK and Scottish Governments came to an agreement about the matter in October 2012. House of Lords Constitution Committee, The Agreement on a Referendum on Independence for Scotland, 2012–13, H.L. 62 (U.K.). The Agreement meant that the legality of the Scottish independence referendum was settled without the need for litigation.Google Scholar

66 Equality Act, 2010, c. 15 (U.K.).Google Scholar

67 Blair, Tony, A Journey 516–17 (2010).Google Scholar

68 Griffith, John A.G., The Politics of the Judiciary (1977).Google Scholar

69 Griffith, John A.G., The Politics of the Judiciary 336 (5th ed. 1997).Google Scholar

70 Griffith, John A.G., The Official Secrets Act 1989, 16 J.L. & Soc'y 273 (1989).CrossRefGoogle Scholar

71 Shayler, R v., [2002] UKHL 11, [2003] 1 A.C. 247.CrossRefGoogle Scholar

72 It must be said, however, that once the Labour Government assumed office in 1997, it gave no indication that it thought that official secrets legislation needed to be liberalized.Google Scholar

73 Sec'y of State for the Home Dep't v. JJ, [2007] UKHL 45, [2008] 1 A.C.; Sec'y of State for the Home Dep't v. MB, [2007] UKHL 46, [2008] A.C. 440; Sec'y of State for the Home Dep't v. E, *2007+ UKHL 47, [2008] 1 A.C. 499.Google Scholar

74 Tomkins, Adam, Parliament, Human Rights, and Counter-Terrorism, in The Legal Protection of Human Rights: Sceptical Essays 13, 34–49 (Tom Campbell, K.D. Ewing & Adam Tomkins eds., 2010).CrossRefGoogle Scholar

75 Id.Google Scholar

76 See Terrorism Prevention and Investigation Measures Act, 2011, c. 23 (U.K.).Google Scholar

77 A v. Sec'y of State for the Home Dep't, [2004] UKHL 56, [2005] 2 A.C. 68.Google Scholar

78 See, e.g., Liversidge v. Anderson, *1942+ A.C. 206 (H.L.); R v. Sec'y of State for Home Affairs ex parte Hosenball, *1977+ 1 W.L.R. 766 (Eng.); R v. Sec'y of State for the Home Dep't ex parte Cheblak, [1991] 1 W.L.R. 890 (Eng.).Google Scholar

79 See Tomkins, Adam, National Security and the Role of the Court: A Changed Landscape?, 126 Law Q. Rev. 543 (2010).Google Scholar