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.
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.
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”
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.
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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