Where we are on Christmas Eve

Constitutionalism is not (yet) in crisis, but constitutional law is needlessly exciting

Constitutional law should not be exciting; constitutional law should be dull.

That, of course, is pretty much the motto of this Substack and it has been typed perhaps dozens of times, and yet it is still true.

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Constitutionalism may have many definitions but the one employed by this Substack is that it means that there are fundamental legal and political principles and rules that should be complied with, regardless of partisan or personal interests.

Put another way: there may well be partisan or personal advantage in you doing one thing, but you do another thing because you respect the rules and principles of the polity.

In more concrete terms: you do not lie to parliament; you accept election results; you do not use discretionary powers for untoward purposes; you do not use statutes to circumvent or frustrate - let alone break - other legal rules; and so on.

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Many commentators on constitutional matters use the word ‘crisis’ a lot. They write dramatically of a constitutional crisis here and a constitutional crisis there.

What they actually mean is that there is some constitutional drama - that there is a difference of view: some tension and uncertainty as to how things will end up.

But the resolution of such tensions and uncertainty is what constitutions are there for. That there are tensions and uncertainties being resolved shows a constitution doing its job.

A constitutional crisis is therefore not when a constitution resolving tensions and uncertainties, but when a constitution fails to do so.

To take a recent example: the two Miller cases during Brexit were examples of the Supreme Court ensuring that parliament was not sidelined by the executive, and in both cases the executive accepted the judgment of the court.

Ministers and government-minded pundits were loudly disappointed, yes: but the complaints of the supporters of the executive about not getting their way is the sweet sound of a working constitution.

And to take an even more recent example: the Supreme Court ruling that the current version of the Rwanda scheme was unlawful was met by ministers moving to sign a treaty and put forward legislation, rather than by proceeding to break the law anyway.

This again is an example of the constitution working, despite the moans of ministers. There was drama, certainly; but it was not a crisis.

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But.

We keep coming close to a crisis.

A crisis is a serious and unstable situation the outcome of which cannot be known: a tension has hardened into a contradiction, and nobody knows what will end up happening.

Constitutional crises in the British Isles are rare - I aver that the last one was perhaps the Irish home rule crisis up to around 1925. And before then, it was the crisis which ended in 1688-89.

In both cases, there were contradictions which were beyond resolution by the constitutional rules and principles of the time, and so an entirely new approach had to be found. (Some would say, fairly, that the Irish situation will never be fully resolved until the island of Ireland is unified.)

We have had remarkable dramas - the collapse of old Tory certainties in 1828-32, the home rule political divisions of 1885-1886, the stark controversies of 1909-14, the forced abdication of a king in 1936 - but even these were dealt with by available expedients, such as statutes or the royal prerogative, or both.

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In the last few years we have had the drama of the government threatening to use primary legislation to break international law. First it was the internal market legislation, then it was over Rwanda policy. It is almost as if ministers have acquired a taste for threatening to use Acts of Parliament to break international legal obligations of which they disapprove.

What would convert this drama into a crisis would be if the government ever succeeded in passing and implementing such primary legislation - and the courts then said ‘no’.

If a court took the view that an Act of Parliament had to be disapplied in those circumstances then we would be on the verge of a crisis.

When the courts disapplied the Merchant Shipping Act 1988 in the Factortame litigation it was with the polite fiction that the courts were giving priority to the European Communities Act 1972. In this way the pretence of the sovereignty of parliament was maintained.

But what would happen if a court (purported) to disapply an Act of Parliament without the fiction of pointing to earlier domestic legislation? If the primary legislation breached some fundamental rule of customary international law or was in outright defiance of basic moral standards?

In constitutional theory, an Act of Parliament cannot be gainsaid by the courts - and there were even once Acts of Parliament (‘Bills of Attainder’) which provided for the execution of people.

A court may thereby nod-along with the grimmest legislation; the crisis would be triggered if a court said ‘no’’.

Nobody knows what would then happen.

Until recent times, such questions would only be for constitutional law students - but neither they nor their tutors would know the correct answer. It would instead be a test of reasoning and comparing various authorities. You would be told what should happen or what it is hoped will happen, but no one would know what would happen.

Perhaps government ministers, and those who cheer and clap, are betting that the courts will defer.

Perhaps they like the sheer excitement of the constitution being pushed to and beyond its limit.

Perhaps.

(And perhaps the House of Lords will save us, until this current parliament runs out of time.)

But constitutional matters should be dull, and not this exciting.

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May I wish you a happy Christmas. Thank you for following this Substack.