Reforming the United Kingdom Constitution: Law, Convention, Soft Law
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00720.x |
| Author | Aileen McHarg |
| Published date | 01 November 2008 |
| Date | 01 November 2008 |
THE
MODERN LAW REVIEW
Volume 71 November 2008 No 6
Reforming the United Kingdom Constitution: Law,
Convention, Soft Law
Aileen McHarg
n
The Governance of Britain Green Paperco ntinues the programme of constitutional reform begun
in 1997, and appearsto reinforce the juridi¢cation of the UK’s constitution. Nevertheless,s everal
key reformswi ll be implemented not by legislation, but bycreating new conventions.This article
argues that such‘declared’ conventions are best understood as a formof constitutional ‘soft law’,
which attempt to in£uence constitutional behaviour rather than generating binding norms.
Applying a regulatory analysis, it then argues that the case for a soft, rather than hard law
approach to constitutional reformis weaker than its widespread use in the UK suggests. Finally,
the article challenges the thesis that the political constitution is being replaced by a legal constitu-
tion, arguing that the government’s attitudeto co nstitutional reformsti ll exhibits basic character-
istics of political constitutionalism. Moreover, there is more to contemporary constitutional
developmentstha n a bipolar contest between political and legal constitutionalism.
INTRODUCTION
It has become commonplace to observe that the United Kingdom has in recent
years been undergoing a process of transitionfrom a ‘political’to a ‘legal’ constitu-
tion. In other words, issues that were hitherto subject only to political or moral
regulation and sanction areincreasinglygoverned bylegal rules and hence capable
of giving rise to disputes which may come before the courts for determination.
A number of (mutually reinforcing) reasons for this can be identi¢ed, including
membershipof the EuropeanUnion, the expansionof judicial review and the rise
of common law constitutionalism, and, in particular, the raft of constitutional
reform measures put in place by the Labour Government since 1997.
Nevertheless, the political constitution does in some respects appear to be alive
and well.For one thing, mirroringexperience in countries with writtenconstitu-
tions, the new legal arrangements have themselves given rise to new political
practices which modify or supplement the letter of the law.The so-called Sewel
convention,
1
whereby theWestminsterParliamentwill not exercise its undoubted
legal power to legislate on matters devolved to the Scottish Parliament except
n
School of Law, Universityof Glasgow. Iam grateful to Tom Mullen, Donald Nicolson and particu-
larly toAdam Tomkins for their comments on this article, as wellas to the anonymous reviewers.The
usual disclaimer applies.
1 Whether thi s does in factmerit the term ‘convention’ is a matter of somecontroversy and will be
discussed further below.
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71(6) 853^877
with the latter’s consent, is oneexample. Another is the reliance on non-statutory
Concordats and Memoranda of Understanding to regulate relations between the
UK government and the various devolved administrations to supplement the
skeletal statutory provisions in this area.
In addition, the institutions and powers of the UK government itself have,
until veryrecently, been relatively una¡ected by the process of constitutional jur-
idi¢cation. Althoughsubject to the general increase in legal regulation of the pub-
lic sector consequent upon the enactment of the Human Rights and Freedomof
Information Acts, as well as the greater availability of judicial review at common
law, theyhave not been singledout for root-and-branch reform.This is not to say
that the central executive has been entirely immune from change. On the con-
trary, the creation of Next Steps Agencies and the (not so) New Public Manage-
ment revolution, begun by the last Conservative Government but continued
under Labour, have undoubtedly been of constitutional signi¢cance. However,
these changes have been e¡ected with only minimal statutory involvement,
2
and
they have not been accompanied byany explicit recasting of basic constitutional
understandingsand relationshipsof the sort that has occurred in other areas.Thus,
the principles governing the key institutions of Prime Minister, Cabinet and
Civil Service, as well as the central constitutional relationship between Crown
and Parliament, remain to a very considerable degree a matter of convention and
practice rather than enforceable legal rules.
Against this background, the publication in July 2007 of a further set of wide-
ranging constitutional reform proposals in a Green Paper, The Governance of
Britain
3
^ one of Gordon Brown’s ¢rst acts as Prime Mi nister ^ appears doubly
signi¢cant. In the ¢rst place, although many of t he proposals are tentative and
subject to further consultation, the Green Paper seems to reinforce the general
trend away from apolitical towards a legal constitution. Indeed, it raises the pos-
sibility, albeit most tentatively of all, that some time in the future the UK might
adopt a written constitution.
4
Secondly, what might be regarded as the headline
proposals in the Green Paper ^ certainly some of the more concrete ones ^ bring
the UK government for the ¢rst time within the scope of the constitutional
reform agenda.Thus, the Green Paper proposes a range of reforms which aim to
modernise the role of the executive in our system of governance, by reducing its
powers and making it more accountable to Parliament and the people.
5
Some of
these reforms have now been taken forward byaWhite Paper and Draft Consti-
tutional Renewal Bill published in March 2008.
6
While some of these proposals amount to no more than tinkering (for exam-
ple, amendments to the Ministerial Code;
7
restriction of the Attorney General’s
2 SeeT. Daintith and A. Page, TheExecutive in the Constitution (Oxford: Oxford University Press,
1999)389.
3 Cm 7170 (London:TSO, July 2007). For a summary of the proposals, see A. Le Sueur,‘Gordon
Brown’sNew Constitutional Settlement’ [2008] PL 21.
4 Green Paper ibid 62.
5ibid 6^7.
6 Ministry of Justice,The Governance ofBritain ^ Constitutional Renewal Cm 7342-I (London:TSO,
March 2008); The Governance of Britain ^ Draft Constitutional Renewal Bill Cm 7342-II (London:
TSO, March 2008).
7 Green Paper, n 3 above39.
Reforming the United Kingdom Constitution
854 r2008 The Author. Journal Compilation r2008 The Modern LawReview Limited.
(2008) 71(6) 853^877
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