A well-known test for public intoxication required the subject to repeat the phrase “British Constitution” without slurring the words. It is easy to understand this particular choice of phrase, as only a person with super-normal faculties could even begin to understand what the constitution really stands for. Varying interpretations of the constitution have led, in recent times, to a “constitutional crisis” and allegations of a “constitutional coup” in the light of an unprecedented judgement laid down by eleven justices of the UK Supreme Court on September 24 2019.
The constitution defines the relationship between citizens and the state, the rules that govern the political system, and the particular functions of the Head of State (the hereditary monarch), the legislature (House of Commons and House of Lords), the executive (the British government), the judiciary (the courts and tribunals), and the devolved governments of the nations of Scotland, Wales and Northern Ireland. Parliamentary sovereignty and the “rule of law” are among the core principles defined by the constitution.
The UK shares the lack of a uncodified constitution-a single unifying legal document that codifies the rights of citizens, the powers of the state and the rule of law-with Canada, Israel, Saudi Arabia and New Zealand. The absence of a codified constitution has led to major political controversy in 21st century Britain. It is worth recalling that, across the Atlantic, the US Constitution was ratified as far back as June 21 1788, thereby setting a benchmark for subsequent codified constitutions.
The UK’s lack of a codified constitution allows for a flexible interpretation of its various written and unwritten components. A series of written Acts of Parliament or statutes, treaties and other international agreements, and works of authority, alongside unwritten conventions (or precedents) and a body of constantly changing common law (legal precedents set by judicial decisions in individual cases), together form the constitution at present . The flexibility of interpretation of the constitution as currently constituted is simultaneously a strength as well as a weakness.
The British Constitution can be traced back to the Magna Carta of 1215- the Great Charter of the Liberties of England, a parchment document comprising a preamble and 63 clauses-which was granted by King John I to the barons of England at Runnymede. Subsequent additions to the unwritten constitution came with the Provisions of Oxford 1258, the Petition of Right 1628, the Bill of Rights 1689, the Act of Union 1707, the Great Reform Act 1832, the European Communities Act 1972, and the Human Rights Act 1998, alongside other pieces of legislation. The Bill of Rights, in particular, removed the absolute powers of the monarch and established parliamentary sovereignty. The monarch was required to rule thereafter with the consent of a freely elected parliament.
The present “constitutional crisis” reflects a lack of clarity about the role of the executive in proroguing the legislature, and subsequently that of the judiciary in declaring the same prorogation as being unlawful. The Prime Minister prorogued Parliament for a five-week period in the run-up to the October 31 Brexit deadline, from September 9 to October 14 2019, thereby suspending the activities of the House of Commons. This decision has subsequently been framed as a contest between “People and Parliament,” and has brought into question the concept of “parliamentary sovereignty.” The Supreme Court had ruled that the prorogation of Parliament was not only “justiciable” (liable to trial in a court of law) but actually “unlawful, void and of no effect.”
A codified British Constitution may provide a way forward, thereby avoiding seemingly irreconcilable interpretations of what is currently a large and widely scattered body of opinions. A constitution that can be manipulated by the political classes for their own narrow political purposes is not appropriate for the 21st century.
Ashis Banerjee (also confused by the Constitution)