"The shortcomings of the UK’s unwritten common law constitution are illustrated in the Supreme Court’s majority judgment in the 2017 Miller case."
[These are excerpts from an article appearing in full in the latest edition of The Round Table: Commonwealth Journal of International Affairs.]
ABSTRACT
The UK’s constitution is obscure and open textured. The powers of the state are vested in the Crown, which is subject to diverse and contradictory interpretations of its identity. The obscurity of the UK constitution is dysfunctional and needs to be reformed by way of a written constitution. The shortcomings of the UK’s unwritten common law constitution are illustrated in the Supreme Court’s majority judgment in the 2017 Miller case. The common law constitution makes the judges the constituent power and especially vulnerable to criticism when dealing with intensely disputed political matters. In the absence of a written constitution the Supreme Court may lack institutional confidence in its role and authority and seek to portray its decisions as merely technical applications of the law rather than assertions of creative and active constitutional law-making. A written constitution would be an opportunity to design an integrated and coherent body of constitutional law, transform the Supreme Court’s status and improve the clarity of its constitutional decision making.
The main proposition this article advances is that the obscurity of the UK constitution is dysfunctional and needs to be reformed by way of a written constitution. The shortcomings of the UK’s unwritten constitution (the common law constitution) can be seen in many contexts, but here I focus on the Supreme Court’s majority judgment in the 2017 Miller case to illustrate my central proposition. My criticisms of that judgment are not intended as an attack on the judges but are directed towards identifying the structural problems that flow from having an obscure constitution that depends upon the judiciary to piece together. Those structural problems become especially acute when the courts have to deal with a matter that is divisive, politically sensitive and demanded to be answered at short notice. The common law constitution makes the judges the body that defines the constitution and so in effect the constituent power. This makes the judiciary especially vulnerable to criticism when dealing with intensely disputed political matters. In the absence of a written constitution designating the role of a top constitutional court, the Supreme Court may lack institutional confidence in its role and authority and seek to portray its decisions as merely technical applications of the law rather than assertions of creative and active constitutional law-making. The Miller case provides an excellent basis to assess the operation of the constitution under pressure: the subject matter touched on key elements of power in the state, namely, the role and power of the executive, the legislature and the judges. The method of divination of those powers is through the judges, who use an assortment of strategies. The shortcomings of this ‘method’ were evident in the Miller case. With regard to the constitutional background, the majority’s reasoning seems doubtful or plain wrong in places and the way in which the devolution issue was dismissed reveals a reluctance to look at the constitution as an integrated whole.
Conclusion
The Supreme Court was under pressure in the Miller case. The government had made plain that they wanted to trigger Article 50 by March 2017. The court allowed itself to be intimidated into a rushed timetable that did not allow itself time to think through the issues with care. The court was also clearly on the defensive after the terrible press attacks on the divisional court when that court delivered its judgment in the Miller case.
The majority judgment in the Supreme Court looks as if it was stitched together by a committee with rushed research by judicial assistants. The common law approach looks very unsatisfactory especially when the court is under pressure and lacks confidence to assert its role as the top constitutional court of the country. The fundamental obscurity of the UK’s non-constitution with the accompanying paraphernalia of the Crown and the prerogative must have contributed to the lack of precision in the judgment and its failure to offer a compelling and integrated constitutional analysis. I would suggest that the biggest improvement to be made would be for the UK to have a written constitution that identifies what the key concepts and principles of the constitution are. A written constitution that defined the powers of a supreme court and enshrined its status and independence would arguably empower a supreme court to act with confidence and set its own timetable when being harassed by politicians and the press. A written constitution would encourage the judges to think in deep terms about the constitutional structure of the country and give effect to that analysis in their judgments.
[Sebastian Payne is based at the Kent Law School, UK. This article appears as part of a special Round Table Journal edition on The Crown and Constitutional Reform.]
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