Time for Constitutional change but not in front of the judges, First Minister

John Curran 

Image © Dogfael

Carwyn Jones the Welsh First Minister has recently called for a written constitution, arguing the UK has altered dramatically in the last 15 years. He thinks the devolved assemblies are unable to keep pace with the new constitutional landscape nestling within an antiquated structure more appropriate for the era of Gladstone and not fit for today`s purpose. This is a necessary debate but a return to an issue that predates Labour’s victory in 1997. Further, the First Ministers emphasis on a written constitution illustrates major flaws in his analysis.

Labour under John Smith viewed constitutional change as necessary, hence the partial acceptance of the Charter 88 agenda. The increasing centralisation of power during the 1980s under Margaret Thatcher altered Labour’s thinking moving them slightly away from a democratic centralist approach while accepting constitutional change during Tony Blair`s tenure. However, Labour rejected the democratic republican thesis regarding a written constitution as a UK constitutional bridge to far. Or did they?

Labour`s record is impressive in terms of devolution and the enactment of a Freedom of Information Act, releasing the constitutional genie from the bottle while maintaining an agenda that made them look “tough on crime”. The constitutional programme placated the Charter 88 lobby while the government paradoxically adopted an authoritarian line giving an impression they were attacking civil liberties. This view is enhanced with reference to the record of various Labour Home Secretaries most notably (but not exclusively), David Blunkett.

Michael Mansfield QC has argued that Blair and Brown were jointly responsible for the destruction of civil liberties in the UK. Dominic Grieve MP (current Attorney General) from a different political perspective claimed Labour’s years in power akin to tyranny installing what he called the `Surveillance State`. Indeed, Conservative David Davis MP resigned from Parliament forcing a bye-election on the issue of forty-two day’s detention without trial. Of course this disdain towards civil liberties meant a written constitution was ignored if not laughed out of the Blair/Brown court.

Lest we get carried away with the notion that a written constitution is a civil liberties panacea it is important to keep a few caveats in mind. A written constitution grants significant power to the Judiciary, a professional group from an elite social and educational background. They overlook primary and delegated legislation through a process known as judicial review, a tame version of this doctrine exists in the UK where Parliamentary sovereignty takes precedence over the courts (in contrast to the USA).

In the UK it is not strictly true that no written constitution exists. The Human Rights Act 1998 is applicable to all UK citizens and residents. Joshua Rozenberg this Tuesday (BBC radio 4 Law in Action) explained that the Home Secretary Theresa May is setting a motion before Parliament to change UK immigration law due to concerns that foreigners who have broken the law avoid deportation by citing Article 8 of the Human Rights Act 1998. If the motion fails Rozenberg outlined that the government may amend the HRA, forcing a conflict with the European Court of Human Rights. Such tensions are par for the course and if the UK acquires a written constitution then expect more of this.  

In Scotland the devolved assembly operates under the Scotland Act 1998. The existence of this statute indicates that certain rights unique to Scotland are codified. If the Scottish Parliament breaches these rights then a judicial review will check the devolved assembly. This is de facto a written constitution and one wonders if those residing in Scotland feel any freer than counterparts south of the border.

At the heart of this issue is sovereignty and the landmark judgment of Factorame indicates that the UK lost this sometime ago after the courts decided a UK Act of Parliament (Merchant Shipping Act) had to be disapplied because the statute was not enacted in accordance with community law and therefore no longer effective. The role of the European Court of Justice and the House of Lords (now Supreme Court) seemingly had greater authority than an elected parliament.

Carwyn Jones is effectively recommending handing power to the courts if the UK adopts a written constitution. A worrying development as Professor Griffiths argued in his seminal work `The Politics of the Judiciary` judges represent an elite and favour the establishment in their decisions. This is especially so in employment disputes favouring the government and employer against the worker and trade union.

A written constitution is subject to interpretation often in variance with the intention of the legislature, a glaring example of this is the United States whose written constitution is cited as an exemplar for others to follow.

The USA was founded on a separation of powers modelled on the British constitution but in America each arm of government has real power to check the other. In order to avoid the tyranny that many felt Britain succumbed to.

If one party gains overwhelming control of the executive and legislature there was a fear that majority rule would result in tyranny thus making a written constitution necessary and placing the nine Justice of the Supreme Court in a powerful position. The power of judicial review in the USA was established in the landmark case of Marbury v Madison, legislation in the USA must be consistent with the written constitution otherwise it is overturned.

After the American Civil War the Reconstructionists took hold of the legislative levers and the fourteenth amendment introduced the `equal protection clause`. However in the devolved assemblies of the Deep South the states refused to accept this, implementing what became known as the `Jim Crow` laws. The matter went before the Supreme Court and they interpreted the fourteenth amendment in such a way as to make segregation in the South de jure lawful in the case of Plessey v Ferguson enshrining the concept of `separate but equal`. African Americans waited until the 1950s for the Supreme Court to overturn this judgement in the case of Brown v Board of Education. Judges are conservative maintaining a commitment to judicial precedent makes progress slow.

There are further examples of the USA written constitution failing to defend the rights of citizens. The disgraceful treatment of Japanese–Americans after Pearl Harbour was endorsed by the Supreme Court. When FDR attempted to deal with the economic depression in the 1930s his New Deal measures were blocked by the Supreme Court forcing the President to threaten to pack the court with his own supporters.

During the `Red Scares` of the 1920s and 1950s the written constitution provided citizens with no protection, claims for protection under the Fifth Amendment fell on deaf ears.

In fact Joe McCarthy trounced the constitution using the cover of an external threat to justify his behaviour.

In a couple of weeks time the United States Supreme Court sits again on the judgement of a democratically elected President and one with overwhelming support for his health proposal `The Patient Protection and Affordable Care Act`.

 As Michael Rozenberg pointed out this week:

Any Americans not insured by their employers or through other government schemes must buy their own health insurance. If they do not then they will have to pay a penalty on their tax return.

Lest we forget the President was elected with a mandate a British Prime Minister could only dream of today. Yet, despite this formidable approval from the people he has less authority than David Cameron whose party did not win a majority in the last general election. The cornerstone of President Obama`s domestic policy will be decided by 9 justices in direct opposition to the executive and legislature, a development that would warm the hearts of those who designed this democratic system.

Mr Jones, be carefully what you wish for.


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