*Editors’ note – this post is part of a series on ‘Contemporary Challenges for Constitutional Accountability’.  The other posts in the series are available here.*

Part of the debate around accountability in the UK concerns the judiciary and its relationship with the elected parts of government. A potentially useful concept in assessing this relationship is constitutionalism. This post is a summary of my presentation at the recent UKCLA Conference in Liverpool, in which I engaged with some long-running debates around constitutionalism. I argue here that there is a version of constitutionalism, which I term “moderate constitutionalism”, that is normatively desirable and suited to the UK’s constitutional tradition. After discussing the situation of constitutionalism in the UK and setting out the case for moderate constitutionalism, I identify some possible implications of the analysis for the system of government in the UK. What is presented here is an early sketch, at a high level, of an account that I intend to develop in significantly greater detail in the future.

Constitutionalism in the UK

I take constitutionalism to be the idea of legal limits on governmental action (meaning the action of both the executive and legislature, as the elected branches of government). For example, the Stanford Encyclopedia of Philosophy defines constitutionalism as follows: “Constitutionalism is the idea … that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations”. Paolo Sandro suggests that constitutionalism is realised “whenever the exercise of political power through law is limited juridically” (page 59). The basic attraction of constitutionalism is that it boosts accountability and can help to prevent abuses in the sense of arbitrary or unjustified uses of government power.

Some scholars argue that this understanding of constitutionalism is merely “negative constitutionalism”, and put forward an idea of “positive constitutionalism” that might correspond to a range of possible values, such as the rule of law and separation of powers. For my part, I am not so sure about the utility of such approaches. Redefining the term in an entirely different way may generate confusion in debates over constitutionalism. Moreover, the seemingly pejorative use of the term “negative constitutionalism” is flawed, because it appears to overlook that this “negative” understanding of constitutionalism can be facilitative of and even compel state action, not merely constrain it (for example, through positive obligations in human rights law) – it does not have a purely negative character.

What is the nature of constitutionalism in the UK? Much of the discussion in the literature focuses on common law constitutionalism as the idea of limits on the power of the UK Parliament arising from the common law. Yet it might be difficult to say whether these limits truly exist. There are obiter dicta supportive of such limits, but the actual assertion of any hard limits would probably result in a constitutional crisis and a confrontation between the judiciary and elected branches. Instead, courts have generally used the interpretation of relevant statutes, sometimes together with the concept of the rule of law and the principle of legality, to avoid a direct clash with Parliament, as seen in cases such as Privacy International, UNISON and Evans. Whether this interpretive approach suffices for constitutionalism may be open to debate. Another avenue towards constitutionalism in the UK might be the supremacy of EU law as understood since Factortame, since this could be thought of as imposing limits on parliamentary power. However, although there is currently still retained EU law, this kind of limit may be less relevant since Brexit. (At the end of 2023, pursuant to the Retained EU Law (Revocation and Reform) Act 2023, retained EU law will become “assimilated law”, and the principle of supremacy of EU law will be revoked.) Further, EU-law-derived limits might not constituteconstitutional limits internal to the UK system of government.

Perhaps the most important mechanism of constitutionalism in the UK is that under the Human Rights Act 1998 (HRA), which arguably imposes limits by subjecting Acts of Parliament to evaluation against the European Convention on Human Rights as set out in Sch 1 of the Act, through the interpretive power in s 3 and declaration of incompatibility power in s 4. As is well known, there is no judicial strike-down power. However, an authoritative declaration by the judiciary of a law’s incompatibility with human rights is a statement that legal standards have been contravened – practically and symbolically, it operates so as to be similar to a finding of unconstitutionality in other systems. Indeed, as Aileen Kavanagh points out, review under the HRA may not be especially “weak” in practice.

Constitutionalism in the sense of legal limits remains controversial. There are perhaps two key criticisms of the concept. One is that constitutionalism is anti-democratic in that it removes matters from the ambit of democratic decision-making and places them in the hands of judges. There can be a degree of truth to this. This criticism is often linked to the idea that democratic decision-making can suffice to protect human rights. However, this could be viewed as overstating the quality of democratic decision-making, which not infrequently may neglect rights issues. Sometimes it is also said that judicial decision-making interpreting rights is arbitrary, but this, too, may be overstated, even if mistakes are sometimes made by courts. At times, in response to criticisms of constitutionalism, it is pointed out that judicial enforcement of rights can enhance democracy, but this of course does not explain many rights in constitutions that may have limited relevance to the political process. Arguably, though, a political community should be able to make the decision to enact a higher law without demonstrating its instrumental value to democracy.

Another possible criticism of constitutionalism is that it inhibits government action, rather than facilitating it. Once again, there can be a degree of truth to this. However, when it works well, constitutionalism addresses government abuses and mistakes, rather than stopping appropriate government action. Additionally, as mentioned above, this criticism overlooks that constitutionalism can require the state to act in some circumstances, as with positive obligations entailed in rights, or other constitutional duties. Even in a purely constraining aspect, constitutionalism may sometimes make the state more efficient and effective by requiring justifications for action. In any event, the UK system of government has few checks and balances (unlike, for example, the US system, which has too many), so concerns about inhibition may be overstated. Potentially, a little inhibition might be a good idea.

The case for moderate constitutionalism

I will now put forward a brief case for a kind of constitutionalism that I term “moderate constitutionalism”. To support this case, I propose a typology of three ideal types of constitutionalism, by reference to three elements: the nature of the judicial approach to questions about the constitutional limits and duties of the elected branches of government; the degree of respect by the branches of government for the judiciary as constitutional guardians capable of judging these questions; and the extent of the possibility of override of judicial decisions about these questions by the elected branches. These ideal types (all of which are models of constitutionalism in the sense of legal limits) are as follows:

• Strong constitutionalism: (1) aggressive judging, (2) a judiciary that is beyond question as constitutional guardians, and (3) no override of judicial decisions.
• Moderate constitutionalism: (1) careful judging, (2) sufficient respect for judiciary as constitutional guardians, and (3) an override of judicial decisions in exceptional circumstances.
• Weak constitutionalism: (1) judicial abdication, (2) lack of respect for judiciary as constitutional guardians, and (3) an easy override of judicial decisions.

As ideal types, these exact configurations of elements are not necessarily reflected in any real-world system, though as will be seen I consider that the US (currently) reflects strong constitutionalism. The criticisms of constitutionalism outlined above are most salient against the strong constitutionalism ideal type, and do not really apply to moderate or weak constitutionalism. However, unlike weak constitutionalism, moderate constitutionalism captures the benefits of constitutionalism in enhancing accountability and helping to prevent government abuses of power. (However, I acknowledge that the desirability in practice of moderate constitutionalism could be affected by other matters such as aspects of the system of government, including the number of checks and balances elsewhere, and the content of the applicable constitutional instruments, including their level of prescriptiveness.)

I will discuss each of the elements of moderate constitutionalism in turn. The first element is careful judging. The careful judging element entails that courts use their powers to adjudicate the constitutional limits and duties of the elected branches of government responsibly, and engage in plausible and defensible interpretations. Careful judging might even be viewed as implicit in the underlying idea of constitutionalism, under which constitutional limits are supposed to be “legal” in nature – extreme exercises of interpretive discretion are potentially not consistent with this idea. Moreover, by engaging in careful judging, courts leave as much ambit as possible for democratic decision-making, and avoid gumming up government unnecessarily, which blunts some lines of criticism of constitutionalism.

The second element of moderate constitutionalism is a sufficient level of respect or acknowledgement by all parts of government (including the executive, legislature and courts themselves) of the role of courts as guardians of the constitutional order whose task it is to judge constitutional limits and duties. This respect enables the courts to perform that role effectively. Without courts receiving the required respect in performing their guardianship role, constitutionalism becomes more difficult. Elected parts of government cannot be expected ordinarily to interpret legal rules to which they are themselves subject; they have a conflict of interest in that regard, so the matter needs to be entrusted to another body.

The third element of moderate constitutionalism is that decisions of courts about the constitutional limits and duties of the executive and legislature should not necessarily always be final; there should be the possibility of override in exceptional circumstances to address possible mistakes by the courts, which are not infallible. A significant aspect of this element is whether courts have the power to strike down primary legislation, since if they do not then this element is likely to be moderate or weak – but even in systems with such powers, if the constitution is reasonably amendable, judicial decisions might not be truly final. As others have observed, the idea of non-finality addresses criticisms of constitutionalism: if judicial decisions on constitutionality can be overridden, then constitutionalism is neither as inhibitive nor as anti-democratic as its critics claim, since it gives the elected parts of government the last word (or, at least, the opportunity to engage in dialogue).

Implications for the UK?

The UK judiciary is, in my view, usually careful in adjudicating claims under the HRA. Despite risks associated with the breadth of the proportionality test, which confers a very high level of discretion on courts, there are not many examples of overreach, and some notable instances of pulling back from the brink. A classic example of not sufficiently careful judging is the US, in which a tendency to invent rights and other doctrines with minimal textual or structural foundation in the US Constitution – a tendency dating at least to Lochner v New York in 1905 – has enmeshed the US Supreme Court in repeated controversy. The UK is probably aligned with moderate constitutionalism on the first element, while the US is likely to be aligned with strong constitutionalism given many examples of aggressive judging.

However, the second element of sufficient respect for constitutional guardianship may be where problems arise in the UK, at least beyond the HRA. The (executive) government often objects, even if it complies with the judgments, when courts seek to play a guardianship role, for example in the controversy in the wake of Miller II. (The ouster clause in the Dissolution and Calling of Parliament Act 2022 might also be viewed as furthering this objection.) Significant aspects of the constitution, which are in the form of constitutional conventions, are not enforceable by courts, as discussed in Miller I. Courts are often driven to resort to interpretive techniques to protect what they consider to be fundamental aspects of the system. Accordingly, the UK might be aligned with weak constitutionalism on this element. In contrast, in the US, the guardianship role of courts has been widely accepted since Marbury v Madison. The US Supreme Court is arguably a “beyond question” court, aligning it with strong constitutionalism, in view of its lack of accountability to Congress.

The third element of an override of judicial decisions on constitutional duties and limits is not prescriptive of the nature of the override. The override can be in the form of (for example): a reasonably amendable constitution that allows the amendment process to be used to set aside the decision of a constitutional court; a Canada-style override clause; or an HRA-style instrument under which declarations of incompatibility do not strike down legislation – provided that they are still usually listened to, as is the case in the UK. In this way, the UK seems likely to be an example of moderate constitutionalism on the override element (excluding from consideration any international law obligations arising under the European Convention). Once again, the US is an example of strong constitutionalism because its constitution has become, as Richard Albert explains, essentially unamendable in the current political circumstances under the Article V amendment procedure.

This analysis suggests that criticism of the form of constitutionalism that exists in the UK as a result of the HRA tends sometimes to be misplaced as it largely reflects a normatively desirable moderate constitutionalism(albeit subject to possible concerns about the recent practice of limiting the scope of HRA s 3 in the Illegal Migration Act and Victims and Prisoners Bill, which could potentially be viewed as pushing the UK closer to weak constitutionalism). However, the main deficiency of the UK’s approach concerns the element of respect for courts as constitutional guardians beyond the HRA. The level of respect for the guardianship role of the courts is likely to be insufficient for moderate constitutionalism because of: the government’s tendency to criticise or challenge the courts when they seek to perform a guardianship role; the fact that important aspects of the constitutional system cannot be reviewed by courts because they are conventions; and the way in which courts rely on interpretation of statutes to uphold basic features of the constitutional order.

What can be done to shore up these aspects of the UK system, in order to enhance accountability from the standpoint of moderate constitutionalism? One possibility is to make the courts’ guardianship of the constitution more explicit. Due to the space limitations of this blog, the suggestion must await future elaboration, but it could take the form of extending the example of the HRA to other aspects of the constitutional order, and the UK Parliament enacting a similar declaration of incompatibility type approach for other principles of democratic government (including, potentially, the principles referred to by the UK Supreme Court in cases such as Privacy International, UNISON and Evans). Enshrining certain constitutional principles might help also to avoid the spectre of courts acting to protect the system in what sometimes seem to be rather complex processes of reasoning via the protean concept of the rule of law.

Conclusion

Moderate constitutionalism may be a normatively desirable way to enhance government accountability. It either wholly or largely evades major critiques offered of constitutionalism due to its careful judging and override elements. These critiques are most applicable to strong constitutionalism, while weak constitutionalism might fail to yield the accountability benefits of constitutionalism. Largely because of the positive contribution that the HRA made to constitutionalism in the UK, the system can probably be described as one of moderate constitutionalism in two of its elements (override and careful judging). However, it is probably weak constitutionalism in the element of respect for the guardianship role of the courts. To strengthen that weak element, one possibility is to extend an HRA-style declaration of incompatibility approach to other parts of the constitutional system in the UK.

My thanks to Alison Young, Robert Thomas, Javier Garcia Oliva, Michael Gordon, Se-shauna Wheatle, Paul Scott, Jenny Baldwin and Claire Macdonald for their insightful comments. Any errors are mine alone.

Guy Baldwin is a Lecturer in Law at the University of Manchester.

(Suggested citation: G. Baldwin, ‘The Case for Moderate Constitutionalism in the UK’, U.K. Const. L. Blog (7th November 2023) (available at https://ukconstitutionallaw.org/))