26th March 2021
Whenever a constitutional wrong becomes apparent there is a reflexive demand for a ‘written [or codified] constitution’.
Having a written constitution, it would seem, would just make things better – rather than, as is my view, probably make things just as bad but differently.
(On my scepticism about written constitutions as a panacea see my Prospect piece.)
But this post comes at the topic from a different angle.
Those who demand a written constitution often seem unaware that it is already set out in writing – if you know where to look.
And just as those who wish for a month of Sundays usually do not know what to do with a spare afternoon, those who pine for a written constitution do not read where the constitution is already set out in writing.
Here are four places where you can read the constitution of the United Kingdom online which you may or may not already now about.
Note, however, that each of these are practical rather than academic or theoretical materials.
The first is the Cabinet Manual – which governments (of all parties) since 2010 have averred sets ‘out the main laws, rules and conventions affecting the conduct and operation of government’.
Of course, this is the government’s own view of the constitutional arrangements in which it operates – but it also is a comprehensive and clear overview of how the various elements of state are at least supposed to fit together.
You can click and read the pdf here.
So much for the ‘high level’ constitutional summary – now we turn to how public bodies make (or should make) decisions.
Here we have a wonderful publication published for government lawyers called ‘the Judge over your shoulder’ – which is described formally as ‘guidance to help you understand the legal environment in which government decisions are made and assess the impact of legal risk’ – and is described informally as pretty much a god-send.
This publication set out how decisions and actions by public bodies can be rendered ‘judge-proof’ – that is lawful – and it is updated from time to time.
You can click and read the pdf here.
We move on now from the executive to the legislature, that is parliament.
The key text for understanding what parliament can and cannot do – and the text of which can make a real difference at important political moments – is known as “Erskine May’.
More formally ‘a treatise on the law, privileges, proceedings and usage of parliament’ – this document was for a long time (indeed for far too long) only available to those who knew of its existence and could afford the prohibitive hundreds of pounds that it cost to purchase in hard form.
Such inaccessibility was an outrage – and so it was a boon when the entire text was placed online.
You can click and read it here.
And now, finally to the judiciary.
In particular to the the power of the courts to review (and sometimes quash) both government decisions and even statutory instruments made under acts of parliament (but not the acts of parliament itself).
The ‘Judge over your shoulder’ gives the government’s view – but to see it from the perspective of the courts (of England and Wales) you need to know about ‘Part 54’ of the civil procedure rules – and its attendant practice direction.
This is, of course, written in legalese – but they also provide an understanding of how the courts would go about holding the other elements of the state to account.
A grasp of what it actually means when you read that ‘the government has been taken to be court’ is invaluable to anyone following the tensions between ministers (and other public officials) and the judges.
Of course, these are not a substitute for a codified constitution – but they do set out in writing what – at least – should happen in the constitutional affairs.
Enjoy clicking and reading.
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