What is a constitution and what is constitutional commentary?

The Ideal City, artist unknown

7th October 2019

Constitutional law is currently exciting, and this is a bad thing for constitutional law should not be exciting.

Constitutions set the parameters of politics, and so if those parameters are being constantly tested then that shows there is something wrong about our politics.

All that said, however, these are good days for being a constitutional commentator

In this post I want to take a step back and set out how I go about being a constitutional commentator: how I approach, think about and communicate emerging constitutional issues.

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The first thing to establish is that I am not an expert.

(I know I must not be an expert, as I am followed on Twitter by Michael Gove.)

I do not have a doctorate or other research degree in the field; I have published no learned volumes or journal articles; I hold no academic position nor have been counsel in a leading case.

I am instead a constitutional geek with a laptop who likes explaining things – and, where I can, I happily defer to genuine experts.

But to be a commentator about anything – unless you are content with producing shallow abuse or easy superlatives – you need to have a way of thinking about your subject.

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So what do I mean by the word “constitutional”?

Here the starting point is an understanding of “constitution”.

Every polity has a constitution, in that there can be a descriptive answer to the question of how that polity is constituted.

A constitution provides for how the elements of the state are arranged; what each element of the state does and does not do; how tensions between those elements of the state are resolved; and the relationship of each element of the state with the individual.

The typical way of thinking about the UK constitution is in terms of institutions: the Crown; Parliament; the government; the judiciary; the devolved administrations; and so on.

Another way is to think in terms of functions: policy-making, decision-making, rule-making; administration; scrutiny and accountability; adjudication and dispute resolution; and so on.

In general terms, an institutional approach to the UK constitution accords with a functional approach – that is, for example, the government tends to be responsible for policy-making and administration – but the fits are not perfect.

For instance, rule-making is a function which can be done by the executive (statutory instruments), parliament (primary legislation); and the judiciary (“development’ of the law and precedents).

In a happy polity there is not much issue about what each element of the state does.

And when there are tensions – such as whether the government or parliament get to make a notification under Article 50, or whether the government can be obliged to publish certain papers when required by the legislature – there are means of resolving those tensions before they harden into contradictions.

A constitutional crisis occurs when those tensions cannot be resolved.

(By “crisis” I mean a serious situation the outcome of which cannot be predicted.)

So far with Brexit, there has been considerable drama (and political crises) but there has not – yet – been a constitutional crisis.

The UK constitution also provides for certain general (maybe universal) principles such as the rule of law (that each element must have a legal basis and must not breach legal rules), the separation (or balance) of powers (that each institution should not have absolute control and can be checked by other institutions), and the legislative supremacy of parliament.

Constitutional principles apply when considering how each element of the state goes about its activities and how tensions are resolved.

And taking an interests in these matters, and taking these matters seriously, is what I mean by the word “constitutional”

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So if that is how one thinks about constitutions, how does one go about commentating.

For me, useful commentary comprises three stages.

First, there is ascertaining the correct and relevant facts – and this can be harder than it seems.

Second, there is evaluating those facts – and this not only means understanding what has happened but also understanding what did not happen and could have done – the roads not taken, the decisions not made, and the words not used.

And third, there is communicating that evaluation – I choose social media, podcasts, and blogs, while others do television or academic articles.

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These are exciting times to be a constitutional commentator.

As one based in England, this must be the most exciting time to be a constitutional commentator since the 1680s.

(Scottish, Irish and Welsh commentators may – and do – have different views.)

The UK constitution is currently close to crisis over Brexit

The ultimate causes of this predicament are, in my view, constitutional and policy.

The constitutional cause is that a non-binding referendum result has been treated as a binding “will of the people” which confers absolute authority and cannot be gainsaid, and this has undermined the usual constitutionally balanced roles of parliament, the executive and the judiciary.

An active agent – some would say a poison – has been injected into the body politic, and the body politic does not know how to handle it.

The policy cause is that an immensely complex task – of UK breaking with the EU after 45 years – has been treated as if it is simple and can be done at speed.

These two causes have placed the UK into the position where the constitution has been pushed to its limits, and may well be pushed over those limits.

But one day soon, we must hope, constitutional law will cease to be exciting and become dull again.

And that no one will be interested in reading constitutional commentary, as there would be nothing constitutionally interesting for anyone to comment on.

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16 thoughts on “What is a constitution and what is constitutional commentary?”

  1. There is a semantic confusion here. Your definition of “constitution” is, no doubt, accurate and complete. But there is another definition. In common speech, a constitution is often thought of as a written document, possibly quite short and possibly inscribed on vellum, to which the legislature, judiciary and executive are all subordinate, which can only be changed with great difficulty, and which is held in broad patriotic respect. In that sense the UK does not have a written constitution.

    One consequence of this, is that the word “unconstitutional” can become degraded into a term of abuse, particularly when one’s political opponents seem to discover previously obscure and rarely-used parts of the constitution.

    1. There is no “semantic confusion” – my definition covers constitutions whether they are codified (“written”) or not. And that is deliberate, and my position coherent.

      In fact the UK constitution is a written constitution, in that the sources are all textual and an understanding of the constitution requires engagement with and interrogation of those written sources. It is just not written down in one place.

      1. I do not disagree with your definition, which as you say, is coherent.

        In most countries, citizens can readily consult a single written document, known as “the constitution”, to which the legislature, judiciary and executive are all subordinate. This is not the case in the UK.

        That is not a problem for constitutional lawyers, but it may create problems of supposed legitimacy for politicians.

      2. Is it reasonable to think about ‘constitution’ in the medical sense as a frame of reference for the British Constitution?

        It’s about health in a way – for a human-being, their constitution is somewhere between all the systems of their body. To be fair, it’s also a constitution that cannot be written down in absolute terms as we don’t know everything about the human body, no matter how much we zoom into the detail ( – it all comes down to atoms, then subatomic stuff that we don’t understand, so the likelihood of an absolute definition of the constitution of the human body – from systems to organs to tissue and so on – is vanishingly low.

        The health of a country and the health of a person is going to struggle to be expressed by a written constitution, perhaps?

  2. PLEASE paragraph your sentences – so difficult and deterring to read them as they are. Paragraphing is the bedfellow of cogency

  3. With respect, there may be a flaw in your logic re your own expertise.

    The fact that Michael Gove follows you on Twitter does not imply that you are not an expert. It may instead provide proof of Gove’s masochistic tendencies – despite the fact that you are expert (in something, at least) and that in his opinion the British people (ergo himself as a member of that set) are tired of experts, he still reads what you write.

    And, whatever your modest estimation of your own abilities, may I say that (expert or not) I have learnt a lot from your commentaries and am not in the least bit tired of them.

    1. I don’t believe Michael Gove really means he’s sick of experts. What he claims to believe is political spin. I should think instead that he’s in furious awe of David Allen Green’s articles.

  4. Cogent. Coherent and consistent. The very definition of commentary.
    Thank you.
    One final comment, constitutional law will I hope always be of interest if not necessarily interesting in the sense of the well known if apocryphal Chinese curse.

  5. A very interesting and enjoyable blog. Thank you. Do you think, given the nature of the current crisis (or near crisis) that there is now a clear need for the UK to have a single written constitution, as is the case for (almost) every other nation on the planet?

      1. I will look forward to that.
        My answer to that question is a resounding no, on the grounds that it would be written by scribes of a similar quality to those who wrote the Fixed Term Parliaments Act, and because of the number of times recently that the Lords have rescued us from the government by doing something that many decried as unconstitutional.

        I see no merit in the proposal.

  6. ‘The constitutional cause is that a non-binding referendum result has been treated as a binding “will of the people” which confers absolute authority and cannot be gainsaid […] An active agent – some would say a poison – has been injected into the body politic’

    I’d call that the trigger rather than the cause. The real cause, to my mind, is that our constitution has evolved haphazardly and is fundamentally incoherent – but has failed to properly incorporate changes which modern values demand. From that perspective, it’s not so much that a poison has been injected into the body politic, it’s more that natural toxins have been allowed to build up over many years and have now seeped into the bloodstream and been carried to all parts of the body.

    Our constitution has been inadequate for a very long time, and a complacent establishment has ignored calls for reform. The current excitement is the result of that. If we shelve the Brexit issue and focus instead on tackling the flaws in the UK’s internal political system, the pressure to leave the EU would almost certainly dissipate. But if we insist on resolving Brexit first, I think a full-blown constitutional crisis is inevitable.

    1. I disagree. There is nothing wrong with the fundamental structure of the constitution, what has gone wrong is that the interface between the electors and elected has broken down, and we have become entrenched in opposing ideologies, with little or no input from anybody outside of either bubble.

  7. I think not being an academic or other “expert” is why your writing is so helpful to those of us with no legal background. There are no points to score, or tenure to secure, and you act as our translator and guide. Your writing is also very readable, which is an art given the topics you discuss.

    Thank you for all you do, and thank you for being my virtual handrail through the bewildering mess of Brexit.

  8. The UK is still a member of the EU (perhaps more by good luck than good management) and thus bound by the procedures and processes accepted by and applicable to all member states.
    I believe I am right in thinking that some of those EU procedures make reference to the constitution of the member state, to the effect that certain actions must be taken, certain policies must be considered and approved, etc., etc., duly in accordance with the constitution of the member state.

    The question I ask is: Does the EU employ a number of constitutional experts and/or commentators to advise on whether member states are complying with this obligation? I hardly think the Heads of Government on the EU Council would be content just to ask one of their counterparts to confirm verbally that they are acting constitutionally – “Hey, Boris (or whoever). About this decree (or whatever) you have just made. We can assume it’s all constitutional and above board, can we?”

    It would surely be rather unprofessional, careless even, to lack a mechanism for verifying independently the constitutional behaviour of each member state. So, how does the EU approach this topic?

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