Should we codify the royal prerogative?

com.google.Chrome.vxw6lk.jpgThe recent controversy about the unlawful attempt to prorogue parliament and the judicial review that followed has given rise to renewed calls for the codification of the royal prerogative or the enactment of a written constitution. Anne Twomey argues that there are benefits to a looser prerogative power, and that experience in other countries has shown that codification should be undertaken with caution.

The recent controversy about the prorogation of parliament and the judicial review of its exercise in Miller No 2 (also known as Cherry/Miller) has again given rise to calls for the codification of the prerogative or the enactment of a written constitution.

A written constitution is not necessarily an antidote for ambiguity or interpretative discretion. The same issues that arose in Miller No 2 could also arise under a written constitution. For example, section 5 of the Australian Constitution confers upon the Governor-General of Australia the power to prorogue the federal parliament. In doing so, however, it does not delineate the scope of the power to prorogue and whether there are any internal limits on it. The term ‘prorogue’ would have to be interpreted in its historical context, as a prerogative power, and in a manner that is consistent with the principles that are derived from the constitution, including the principles of responsible and representative government

So what would happen if an Australian government requested the Governor-General to prorogue parliament for a significant period, in circumstances where it appeared to have lost confidence and to be seeking to frustrate the ability of parliament to fulfil is legislative and accountability functions? It is likely that Australian courts would face exactly the same issues as the UK Supreme Court did in Miller No 2, regarding justiciability, the scope of the power to prorogue and the application of fundamental constitutional principles. Simply setting out the existing power in legislation or a written constitution does not, of itself, resolve all questions as to its application.

While most prerogative powers have now been abrogated by legislation, there is usually a good reason while those that have survived as prerogative do so. It may be because of the need to exercise them in a quick and decisive fashion. Sometimes, codifying prerogatives in legislation, particularly where prescriptive conditions are included, can exacerbate problems about their use. Disputes are likely to arise about the interpretation of the application of the conditions, courts are likely to become involved in enforcing them, and the delay involved in litigation is likely to exacerbate any political crisis. Continue reading

The Codes of the Constitution: how the the UK constitution has been expressed in writing over the past century

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Over the past century there has been an enormous growth in the number of publicly available codes providing accounts of various constitutional rules and principles. In a new book Andrew Blick explores this phenomenon and its implications for the UK constitution. He offers an overview here.

Towards the end of this year the Cabinet Office marks its hundredth anniversary. This institution traces its origins to the secretariat David Lloyd George attached to the war cabinet he formed upon becoming Prime Minister in December 1916. Accounts of this administrative innovation tend to focus on its making possible the proper recording and circulation of the decisions of cabinet and its sub-committees. But the instigation of the war cabinet secretariat also prompted another process that has, in the intervening century, become a prominent feature of arrangements for the governance of the UK. It is the subject of my new book, The Codes of the Constitution.

9781849466813In January 1917, the Secretary to the War Cabinet, Maurice Hankey, produced a document entitled Rules of Procedure, circulating it to government ministers. Its ten paragraphs contained a series of stipulations about the operation of the War Cabinet and the implementation of the conclusions it reached. Rules of Procedure was probably the first example of a genre of official texts setting out official accounts of the principles, rules and practices of the UK governmental system. Having passed through a series of transitions Rules of Procedure remains with us today as the Ministerial Code, the latest version of which was published in October 2015. In 31 pages this informs ministers about a range of issues from their participation in cabinet, to their making of appointments, to their relations with their departments, the civil service and parliament, to their political and private business, to their media relations, and even their travel arrangements.

Since 1917, numerous other codes have appeared – so many that no one public official could possibly be familiar with the existence, let alone the content, of all of them. Such was the scale of growth that, in 2000, the Cabinet Office saw a need to codify codification itself, issuing a two-volume Directory of Civil Service Guidance, a compilation of existing texts either in full or summarised form. The Cabinet Office has been a key producer of these documents; and the Treasury has also made significant contributions, through documents such as Managing Public Money. The existence of a unified permanent civil service, which properly came into being shortly after the First World War, has also been a general driver of codification.

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Can constitutions improve democracy? Sometimes, but not always

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Does adopting a constitution lead to better democracy? Not necessarily, write Todd A. Eisenstadt, A Carl LeVan, and Tofigh Maboudi, who studied 138 constitutions from a 37 year-period. They find that in many countries, the constitution-making processes did not incorporate broad public consultation, meaning that the drafters were often able to grab power by codifying benefits for themselves and for their supporters.

In his first visit to Tunisia as the Secretary of the State in February 2014, John Kerry told Tunisian President Mohamed Moncef Marzouki that the United States is impressed with the country’s new, democratic constitution.  “The Tunisian people have ratified a new constitution, a constitution that is rooted in democratic principles – equality, freedom, security, economic opportunity, and the rule of law,” he said, “and it is a constitution that can serve as a model for others in the region and around the world.”  But other countries in the region did not have such promising results. In fact the country that inspired the Arab Spring is the only Arab democracy with political rights and civil liberties similar to those of the Western democracies, thanks to its democratic constitution. But why haven’t social movements in nations such as Egypt and Morocco led to democratic transitions, despite extensive efforts to craft new constitutions?

These countries are not alone, and are part of a worldwide trend towards “hybrid” regimes that mix features of democracy with authoritarianism. In recent research we studied a sample of 138 constitutions between 1974 and 2011 and find that three years after these constitutions were approved, over half of them did not improve levels of democracy. The reason, we argue, is that most of these countries did not incorporate broad public consultation which, unlike constitutional processes of the 18th century, is so vital for the democratic outcomes of constitutions.

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Codification of the UK Constitution is not essential

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The Constitution Unit is pleased to announce the launch of a new report To Codify or Not to Codify: Lessons from Consolidating the United Kingdom’s Constitutional Statutes. James Melton, the report’s lead author, offers an overview of the report, which reflects on some lessons learned about the UK Constitution while consolidating the texts of 18 constitutionally relevant statutes. The main conclusion is that further codification is not essential.

I have devoted much of my academic career to studying national constitutional texts. As one of the principle investigators on the Comparative Constitutions Project, a project dedicated to cataloguing the contents of national constitutional texts, I have often found myself defending the power and importance of formal constitutional entrenchment against critics who view constitutional texts as ‘mere parchment barriers’. In doing so, I am, at least implicitly, arguing that codification of a country’s constitutional order is beneficial

However, if codification is so beneficial then the UK is a real puzzle. It is a country whose constitution is famously ‘unwritten’ but that has evolved into a constitutional monarchy that performs well on cross-national measures of democratic performance, economic performance, governance and the rule of law. So, when I moved to the United Kingdom, nearly three years ago, I thought it would be an excellent opportunity to study the UK’s constitution and to understand the problems created by its lack of codification. After all, there must be some benefit from adopting a codified constitution; otherwise, almost every other country in the world would not have adopted one. So the UK, and the handful of other countries without a codified constitution, must be missing out on something.

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