The codification of the United Kingdom’s unwritten constitution is arguably a recurring theme in the clamors for constitutional reform. Notably, referrals to the U.K. constitution as being unwritten do not translate to the literal meaning of being undocumented, but instead, it exists in an abstract sense comprising diverse laws, practices, and conventions which have evolved but do not exist in a single document. Arguments for and against such codification of the peculiar constitution are driven by a variety of interests and concerns, the foremost being uncertainty, protection of human rights flexibility and executive tyranny. Critics for the maintenance of the status quo like Joshua Rosenberg, have further dismissed the codification as either unattainable or pointless. However, a critical assessment of such dismissals in the context of constitutional reforms, especially in light of the Brexit,[1] contrary opines that even though codifying the constitutional is undeniably highly unattainable in light of the concept of parliamentary sovereignty, it is arguably not pointless due to the necessity of addressing the pressing concerns like uncertainty and the changing societal needs.
The perception of the unattainability of the codification of the unwritten constitution is largely undeniable and exercabated by the notion of parliamentary sovereignty. Notably, parliamentary sovereignty, as pronounced by the landmark Bill of Rights (1869)[2] in the Glorious Revolution, establishes that parliament, using the power of the Crown, enacts a law which no other body can challenge. Currently, this defining principle of the British constitution vests the ultimate lawmaking power in a democratically elected parliament to create or abolish the law, thus further advancing that concept of the U.K.U.K. as a unitary state whose power is in held at the center by the sovereign Westminster parliament. Unfortunately, the parliament’s ultimate authority to enact or strike down legislation proves problematic to the codification of the constitution.
The problematic nature of the process of codification in light of parliamentary sovereignty is that in vesting ultimate power to parliament to make or amend the law as it so wishes, attempts purporting to establish a higher law not subject to amendment becomes a fallacy. This suggests that it would be erroneous for the sitting parliament to enact a legislation that would unconditionally bind the future subsequent parliament.[3] Admittedly, such attempts would be effectively undermining the foundational principles of the U.K.U.K. representative democracy.
Various arguments formulated regarding the pointless nature of the codification mostly emphasize on the significance of the long history of the uncodified British constitution as a formidable tenet the preservation of representative democracy. The opponents further note that the United Kingdom has never had a history-altering moment of significance warranting the need for such codification, coupled with the fact that significant portions of the constitution exist in written documents. Additionally, opponents of codification suggest the emergence of inflexibility and inadaptability if the constitutional provisions were to be entrenched in a rigid document.[4]
Arguably, the foremost concern of opponents of the codification of the constitution is that the document would promote judicial tyranny. This is in light of the ultimate powers that the judiciary would acquire as the custodian and defender of the law, with authority to strike down any law perceived to be contravening the constitution. Therefore, the change of guards, from parliamentary sovereignty to judicial supremacy, noting that the judges are unelected, arguably constitutes the hesitancy in the attempts at codification, making it unattainable. However, the seeming unattainability does not diminish the necessity and significance of such codification.
The basis of the necessity of the codification is arguably founded on the exposed inflexibility of the constitution in regard to the embarrassing Brexit situation, and the need for certainty with regard to its provisions. Opponents have often argued that the British constitution is highly flexible and adaptable to society’s changing needs.[5] However, the Brexit situation disproved of their fallacies, through the ensuing confusion after the decisive referendum vote to leave the European Union, to their dismay. The problematic issues surrounding the leaving of the European Union, therefore, undoubtedly highlighted that the British constitution could not easily adapt to novel situations largely owing to its uncertainty.
Notably, the foremost issue regarding the Brexit situation is the uncertainty in who the relevant government personnel to invoke Article 50[6] that would ensure the British seceded from the European Union. Article 50 provides that once a country decides to leave the E.U.E.U., such a decision would be implemented with regard to the laid down constitutional requirements of the said nation. Unfortunately for Britain, the lack of a codified constitution translated to that the British had no idea as to who would invoke the provision. This uncertainty was further compounded by the fact that the political elite had erroneously assumed the people would vote in favor of not seceding from the union. The long ensuing battles afterward in litigation suits up to the Supreme Court, coupled with the exorbitant costs incurred, therefore points to the painful reality that indeed the British constitution is not as flexible as it was presumed to. Arguably, the existence of a codified constitution would have prevented such a situation.
Arguably, the uncertainity mandating the codification extends to the need for the protection of rights and the necessity of establishing checks to counter the endless attempts of the government to consolidate power and suppress the other arms of government. Arguments forwarded for the essence of codification in protecting rights premise that the availability of a single document identifying the rights and freedoms of the citizens would make it convenient for them to apply for the redress of injustices.[7] This would undoubtedly be a reprieve as the current regime consists of numerous documents and policies being enacted on a daily basis.
With regards to the need for checks and balances, a codified constitution would be essential in outlining the various distinct roles of the government’s various arms while formalizing the mechanisms for their checks and balances, for instance, through judicial review. This is in light of the growing appetite for power by the executive, with the legislature as its rubberstamp.[8] As such, it would be important for such codification, to ensure the observation of the doctrine of the novel concept of separation of powers.
The preceding irrefutably establishes that the codification of the constitution, even though seemingly unachievable, is undoubtedly necessary. Notably, such codification would demand political goodwill and extensive public participation and consensus among citizens. However, a substitute for the codification would be the establishment of a constitutional act that would identify and confer constitutional status to the applicable and relevant provisions.
2.
The effectiveness of the checks and balances system is essential in governance owing to the fallibility of humanity.[9] Notably, an effective system of checks and balances ensures that the government, its performance of its crucial role of the control and promotion of the interests of the populace, can check itself. Arguably, the current system of checks and balances of power, instead of a more formal concept of separation of powers, stems from the Mixed Regime doctrine where the One (Crown), Few (Aristocrats) and the Many(Commons) expertly balanced each other’s paper through the unitary fusion of power vested in parliament. Notably, the formulated checks, mostly enforced by the political goodwill of the parties resting in their hearts and minds, is currently being decried as ineffective owing to the presumed complete fusion of the legislature and executive, hence warrant constitutional reforms[10]. A critical assessment of the system of checks and balances contravenes these admissions, noting that the system is highly effective in light of the regulations of the relations between the legislature, executive and judiciary.
The effectiveness of the system of checks and balances in the government gets significantly illustrated by the relations between the executive and the legislature. Despite laudable claims that there exists a complete fusion of the executive and legislature that promotes tyranny,[11] the checks and balances are surprisingly effective. Notably, the executive, namely the prime minister and the House in leadership, form the government and sit in the House of Commons, thus it is not entirely surprising that the House of Commons would naturally be mandated to pass bills in favor of the government.[12] The cries also stem from the passive role of the backbenchers of the House of Commons, who it is claimed that they fulfill their role in their election, and the formation of the government, then used as a rubberstamp till the rest of the term. When coupled with the exercise of the control of the parliament business, it is admissible that indeed, the executive does possess a considerable influence on the legislature, as the two are intertwined.
Despite the exhibited inability of the House of Commons to check the executive, it would be highly erroneous to dismiss the whole system as an entire failure. This is in light of the crucial mandate played by the House of Lords in restraining influence in the constitutional sphere. Such instances are often perpetual, with the controversy on Clause 14 of the Asylum and Immigration 2003. The clause sought to completely bar the judicial review of all decisions on even grounds of breach of rules of natural justice, by the new Asylum and Immigration Tribunal. The bill, in its entirety, had been approved by the House of Commons, but was effectively rejected by the House of Lords upon taking of notice by Lord Chancellor Lord Irvine. Additionally, the checks on the executive by the House of Commons during Question Time, which often prove pivotal in the decision of the ratification of the proposed legislation. As such, the checks by the on the executive are primarily effective.
The effectiveness of the checks and balances is further exposited in the relationship between the judiciary and the government. Notably, the 1998 Human Rights Act granted considerable power to the judiciary through the concept of judicial review to reconcile the differences between the government actions, and determine their constitutionality. Such instances are often legitimate despite arguments that constitute a wrongful usurpation of power.[13] However, the role is limited in the context of situations warranting judicial review. For instance, the checks and balances’ effectiveness is highlighted in the wrongful detention of an international terrorist in Belmarsh prison in the case of A v Secretary of State for Home Department [2004][14] with the A.G. asserting that the detention was justified as it was a question of a political character, the judiciary should not purport to exercise its judicial role. However, the judiciary rebutted that the function of the judges was to independently interpret and apply the law as universally recognized, hence should not be stigmatized.
The relations between the judiciary and the legislature also indicate the high effectiveness of the system of checks and balances. The checks against the judiciary by parliament are mostly expressed by the use of parliamentary privilege, meant to ensure the freedom of the speech and honesty in the parliamentary hearings, to expose the individuals whose identity is under seal under super injunctions.[15] Such parliamentary privilege serves as the check for judicial activism. However, the exercise of parliamentary privilege in matters pending before the court is applied conservatively, in the interests of maintaining the confidence of the people in the independence of the judiciary.
As per the preceding, the effectiveness of the checks in government arms is undeniably commendable. However, this does not mean that the system of checks and balances is beyond reproach. Further improvements to the checks and balances warrant a need to assert and entrench the judiciary’s financial independence.
3.
As postulated by
Lord Diplock in G.H.C.Q., a contemporary view of nature and purpose of judicial review is that it constitutes the mechanism by which citizens and interest groups may take issue and challenge the legality of the decisions made the government and public bodies. Notably, judicial review serves to regulate the relationship between the government and its citizen through ensuring the observation of the rule of law, amongst other interests, as noted in R (Alconbury Developments Ltd and Others) v Secretary of State for the Environment, Transport and the Regions [2003].[16]
Notably, judicial review is different from a judicial appeal in that the former is usually the last available recourse for an aggrieved party after all other measures of resolving the dispute have been exhausted, while the latter simply constitutes taking issue with the decision of a lower court to its immediate higher-ranking court.
The qualification of a party for judicial review demands the satisfaction of the following requirements:
- Locus standi. The demand of locus standi, as per s31 of Senior Courts Act requires that a party must possess sufficient interest in the matter to which the application relates, to prevent the misuse of the court process abuse by busybodies.[17] This is further exposited in the R v Secretary of State for Foreign Affairs, ex p World Development Movement Limited [1995][18] 1 WLR 386. Notably, Eleanor directly relates to the matter, thus sufficient interest.
- Exclusivity principle. This requires that a public body must have taken the decision under JR. Notably, Eleanor qualifies for judicial review since the decision was made by a local authority whose source of power is a statutory instrument named Childcare Quality Standards Act 2019, as per R v Panel on Takeovers and Mergers Ex Parte Datafin (1987).[19]
- Time limit. Some decisions of public bodies cannot be challenged after the lapse of the statutory time limit, as evidenced in R v. Environment Secretary, ex p. Ostler [1977][20] and Smith v. East Elloe R.D.C. [1956][21]. Eleanor should, therefore, apply for judicial review as soon as possible to ensure her claim is still viable
- Ouster clauses. Ouster clauses in statutory instruments seek to negate the subjection of any decision by the relevant public body from judicial review, as evidenced in Anisminic Ltd v. Foreign Compensation Commission[22]. However, ouster clauses cannot limit the jurisdiction of the court for judicial review in toto if the rules of natural justice were breached, as seen in Eleanor’s case.
- Exhaustion of other remedies. Before seeking judicial review, the applicant must have exhausted other remedied without getting any relief,[23] for instance, through appeals as done by Eleanor.
To bring a successful action for judicial review on the grounds of procedural impropriety, Eleanor could rely on procedural ultra vires as specified in the act. Additionally, since the procedures for the appeals and hearing by the tribunal are not provided for, Eleanor could rely further on the breach of common rules and further reliance on the breach of the rules of natural justice and the universal demands of due proves the universal demands of due process and fair play ordinarily implied and applied in decision making.
For a successful action under procedural ultra vires, Eleanor would have to provide sufficient proof that the Westdale County Council’s Childcare Safety Appeals Committee did not follow the mandatory procedure of consulting the parents of the children before refusing the renewal of the license for the daycare facility. The essence of strict adherence to the mandatory procedure rules provided in the statutory instrument is exposited in Wing v Espon (1904)[24]. In the case, a decision for the order requiring the repair of a road was quashed since it was signed by one judge instead of two, as mandated by the relevant statute. Such essence of strict adherence is further indicated in the dictum of Lord Shaw that “If a statute prescribes the means (the Local Government Board) must employ them”[25] Additionally, in Cooper v. Wilson & Others, [1937],[26] the court stipulated that actions by authorities that go beyond the legal prescriptions are ab initio null and void as they negative the rule of law, thus undermine the legislative supremacy of parliament.
Further reliance on the breach of the common rules of natural justice as grounds for procedural impropriety constitute of two significant principles:
- Audi alteram partem; the rule that no person shall be condemned u heard.
- Nemo judex in re causa sua; the rule against bias, that no man shall be a judge in his own cause.
To show the violation of the procedural ideal of the right to be heard, Eleanor could testify to the court that she was not allowed to say anything in her defense or employ the use of promotional brochures mandated by the assertion in Errington v. Minister of Health, [1935][27] that “’He must do it in accordance with the rules of natural justice that is to say he must hear both sides and not hear one side in the absence of the other.”
Additionally, Eleanor was not given prior notice of the decision for the decline of the renewal of her license, as mandated in Craig v. Kanseen[28] Such notice must be sufficient to allow the defence enough time to prepare as held in R v. Thames Magistrates’ Court, ex p Polemis,[29] an opportunity that Eleanor was denied as she was informed that her appeal would be conducted the following afternoon, a period of less than 24 hours’ notice.
Eleanor could also successfully claim under the violation of the right to be heard as she denied the right to cross-examine the witness who made the anonymous statement against her, and the access to the condemning testimony and the inspection report her whose essence is in the University of Ceylon v. Fernando.[30] Notably, the denial of the right to legal representation is not necessarily a procedural impropriety as per the dictum of Lord Denning in Enderby Town F.C. Ltd v. The Football Association[31] that “It may be a good thing for the proceedings of a domestic tribunal to be conducted informally without legal representation. Justice can often be done better by a good layman than by a bad lawyer.”
Eleanor could further solidify her case on procedural impropriety by denoting the conflict of interest in Hasan, the legal representative of a man she is currently suing for unpaid childcare fees. Such rule against bias is provided for in Dimes v. Grand Junction Canal[32] where the House of Lords set aside decrees made by Cottenham L.C.L.C. in favour of a canal company in which he was a shareholder on the account of his pecuniary interest. The House of Lords then proceeded to deal with the case on its own merits.
[1] R (Miller) v Secretary of State for Exiting the European Union, [2017] U.K.S.C. 5 [1]
[2] R v. Sec’y of State for Transp., ex parte Factortame Ltd. [1990] 2 A.C.A.C. 85 (H.L.H.L.) 152.
[3] Sarah E Mackie. Brexit and the Trouble with an Uncodified Constitution: R (Miller) v Secretary of State for Exiting the European Union, 42 Vt. L. Rev. 297 (2018)
[4] Ibid.
[5] Vernon Bogdanor, Tarunabh Khatian, and Stefan Vogenauer, ‘Should Britain Have a Written
Constitution?’ (October-December 2007) 78 The Political Quarterly 4, 500.
[6] Treaty of European Union,
[7] Lord Bingham, ‘A Written Constitution?’ (2004) Speech as the Judicial Standards Board annual
lecture, 14, available at: <http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/Bingham_2004_JSB_Annual_
Lecture_2004.pdf> accessed 18 Oct 2014
[8]N.W. Barber, ‘Against a Written Constitution’ (Spring 2008) 11 Public Law, 17.
[9] The Federalist NO. 51, at 319 (James Madison) (Clinton Rossiter ed., 2003).
[10] D.P.P.D.P.P. of Jamaica v Mollison [2003] U.K.P.C
[11] Lord Phillips of Worth Maltravers, ‘Judicial independence and accountability: a view from the Supreme Court’, Gustave Tuck Lecture, 8 February 2011, p 19.
[12] D.P.P.D.P.P. of Jamaica v Mollison [2003] U.K.P.C.
[13] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374,
[14] U.K.H.L. 56 .
[15] Zuckerman, Super Injunctions—Curiosity-Suppressant Orders Undermine the Rule of Law, C.J.QC.J.Q. Vol. 29 (2010) at 134.
[16] 2 AC 295.
[17] R v Inland Revenue Commissioners ex p National federation of Self-employed & Small Businesses [1983] 2 AC 237
[18] 1 WLR 386.
[19] QB 817.
[20] 1 QB 122.
[21] AC 636.
[22] 1969] 2 WLR 163.
[24] KB 789.
[25] Local Government Board v. Arlidge [1915] AC 120.
[26] 2 K.B 309.
[27] I KB 249.
[28] [1943] 1 KB 256, 262
[29] [1974] 2 All ER 1219, [1974] 1 WLR 1371
[30] [1960] 1 WLR 223, [1960] 1 All ER 631.
[32] [1852] 3 H.L.H.L. Cas 759.