Sir, – With the greatest of respect to such an eminent jurist, Jonathan Sumption's spirited defence of the British constitution (Letters, September 4th) from Fintan O'Toole's critique (Opinion & Analysis, September 3rd) is slightly wide of the mark on several counts.
First, neither Italy nor any other country has a “wholly legal” constitution. It is impossible to exhaustively write down in a single document everything that a modern state needs to function.
At the very least, these legal rules will fall to be interpreted in accordance with underlying conventional understandings of how the state in question functions.
Nonetheless, a body of readily identifiable entrenched legal rules of this kind, such as are found in a canonical constitutional text like our own Bunreacht na hÉireann, make the enforcement of constitution by recourse to the courts significantly easier, as of course Mr Sumption knows from his time on the United Kingdom Supreme Court.
Although judicial review for constitutionality is not without its own problems, this leads to the second respect in which Mr Sumption’s submissions are flawed.
The British constitution knows little of the separation of powers, notwithstanding Montesquieu’s purported reliance on the United Kingdom as a model in his ésprit des lois. Rather, the entire sovereignty of the state (and all legitimacy of government) is vested in “the Crown in Parliament”.
Leaving aside the inherent absurdity in the “Crown” part (since many well-functioning European democracies continue to tolerate the presence of a constitutional monarch), the real problem with the British model is that there is no effective balance of legitimate power between the branches of government. The prime minister may exercise all the powers of a 17th-century monarch so long as he has the consent of parliament.
Although it is the various political crises brought on by Brexit that have spurred the present debate, this is in fact even more problematic in a “normal” situation where the prime minister enjoys a majority in the House of Commons. No other branch of government – not the courts, through a popularly adopted constitution giving them the power of judicial review, nor an elected head of state – has the democratic legitimacy necessary to oppose the executive branch. One must rely instead on the party-political incentives of backbench legislators to hold the executive in check – which as we have seen in the case of most of the present British cabinet, are extremely fickle.
This is without even getting into the fact that the British constitution has no justiciable bill of human rights, relying instead on the Human Rights Act’s quasi-incorporation of the European Convention on Human Rights – a half-measure which itself was only accomplished in 1998, decades after most European democracies.
In the words of the French Revolution’s Declaration of the Rights of Man, “Any society in which the guarantee of rights is not assured, nor the separation of powers determined, has no constitution.” – Yours, etc,
ALAN EUSTACE,
(PhD candidate),
School of Law,
Trinity College Dublin,
Dublin 2.
Sir, – Jonathan Sumption is of course correct to point out that the UK constitution is not entirely based on conventions, but is increasingly governed by a network of statutes.
However, this is also true of countries, such as Italy or indeed Ireland, that Mr Sumption describes as having “wholly legal” constitutions. All modern constitutions have some varying mixture of legal rules generally enforced by courts and politically enforced conventional rules.
The question therefore is whether the balance struck by the UK, which features considerably more conventions than in many other systems, is a desirable one, and whether it has played any role in the country’s current predicament.
Given that the length and circumstances of prorogation are largely regulated by convention, and given also that the current government has prorogued parliament in an arguably unconstitutional manner but has nevertheless reluctantly admitted that it will follow the law, it seems difficult to escape the conclusion that more legal limits on prorogation that could be enforced in court might have made a difference.
Mr Sumption’s observations on the longevity of the British constitution and that no system is invulnerable to abuse does not obscure this link between Britain’s current difficulty and its choice to rely more on conventions in this matter.
Furthermore, Mr Sumption’s attempt to attribute Britain’s problems to the referendum which he regards as “designed to circumvent the political process” overlooks the extent to which this too is connected to the absence of legal rules. A referendum only circumvents ordinary politics in the absence of any legally binding rules, as exist in Ireland, as to the effect of a referendum result and how it relates to representative channels of government. In the UK, there are no such rules and referendums have been so few that little conventional regulation has emerged.
It might not be absurd but it is hardly desirable. – Yours, etc,
CHRISTOPHER
McMAHON,
Castleknock,
Dublin 15.