hi welcome to this final set of lectures on uh constitutional law so we call this uh final series of lectures um the big picture and the point of these lectures is not to sort of introduce you to lots of of new material there will be a little bit of new material um but the point isn't to uh to go through lots of new things rather it's to to try to stand back a bit and to take stock of what you have done over the course of the michaelmas and lent terms and to think about things perhaps in a slightly different and rather wider perspective so the focus is very much on looking back over the course and thinking about the connections and the relationships between the different topics that you have been studying rather than to introduce any brand new topics so the way that i want to do that is to really ask a key question as we look uh back at some of the things that you have been thinking about this year and the question that i want to use to frame these lectures and to frame the inquiry that we make in the course of them is what is the true nature of the uk constitution what is it really like if we want to try to boil it down and to explain what is the uk constitution all about what is its fundamental nature then how would we answer that question to take that one step further i want to really uh ask the question is our constitution is the uk constitution is it ultimately flexible or is it durable so i'll use these two terms flexibility and durability to really sort of describe two contrasting pictures of the constitution that we might imagine and i'm going to use the lectures to really try to answer the question which of these things is it is it ultimately flexible or is it um durable so let me begin then by just explaining in a bit more detail um exactly what i mean by those two terms that we're going to use as our uh sort of points of reference uh during the rest of this final set of lectures so when i talk about uh the uh constitution being flexible and of course flexibility is the uh is maybe the the thing that people think of that the most or first when they consider the british constitution i've got in mind characteristics such as the constitution being easy to change and in particular being easier to change than perhaps we would expect a constitution to be i'm also thinking about the constitution not necessarily having a great deal of innate content now what i mean by that is that on this view we would imagine the constitution ultimately as a kind of blank canvas something that politicians legislators etc can really um put onto whatever they they want so the constitution not as something that lays down lots of limitations lots of parameters lots of fixed principles but rather the constitution as this sort of blank sheet of paper that lawmakers and politicians can do with as they wish and again um that's that's not quite the same point as flexibility but it certainly links very closely to the idea of the constitution being flexible and that leads on to the third characteristic of of this flexible view of the constitution that the constitution is highly responsive to current political views and we might generally expect constitutions to be rather rigid and to be to some extent at least immune from just being changed and being vulnerable to changes in the political weather changes in public opinion changes in political opinion when the constitution is very flexible as people often think the uk constitution is we might see something different we would expect the constitution then to be very responsive to those kinds of factors and that links back to the first two points that because on this view the constitution is highly flexible because it has this kind of blank canvas quality such that politicians can paint on it at will we shouldn't be surprised on that view if the constitution turns out to be highly responsive to changes in political views so that if for example something happens whereby that the view changes and freedom of expression should be curtailed significantly or the role of the court should be significantly paired back then on this view we would expect the constitution to be capable of accommodating that because it has these flexible and sort of blank canvas characteristics that stands in contrast to a different view of the constitution or indeed different new constitutions generally that the constitution might be more durable in nature and so unsurprisingly here we find characteristics that stand in opposition to the ones that i had just described so here we would find that the constitution was more difficult to change it can't just be changed at will and one of the reasons it can't just be changed readily and at will is because it has more innate content content that is uh to some degree at least fixed in place which means that those who disagree with it those who wish to impose their their own views their different view on how the country should work and how the constitutional system should operate cannot simply paint at will on the blank canvas because to begin with the canvas isn't blank there is content there and there is content there that it is hard to erase hard to get rid of or to work around and that means in turn that on this view of the contribution it is more resistant than it is on the first view to changes in political uh will or current sort of social morals because it has this deeper more fixed more durable content that lays down some more meaningful limits more meaningful constraints on what can be done if we think about how constitutional change works in the uk then um we see a number of characteristics that would appear to align with the first of those two views of the constitution the view that it's highly flexible we would tend therefore to see there's little sense of strategic direction constitutional reform in the uk is generally undertaken in rather an ad hoc rather piecemeal manner if we think back to some of the major changes of 20 or more years ago the human rights act devolution and things of that nature even changes as substantial as those we're not really brought in as part of any coordinated cohesive program of constitutional change but rather as individual changes and that's true i think as we look back over the last uh 10 15 20 years and other changes that have happened if we think about things such as the reform of the office of the lord chancellor at the abolition of the appellate committee of the house of lords and the creation of a supreme court right through to changes that are currently planned or ongoing around things like judicial review or the independent review of the human rights act all of these things it would appear at least being undertaken not as part of a cohesive program have changed but rather as individual projects so we tend to find a lack of strategic direction and and rather we find constitutional reform being undertaken as a kind of political reaction i'll talk more in a later lecture about the independent review of administrative law but it's certainly hard not to perceive that as being in effect a reaction to relatively recent judicial decisions including um in the brexit litigation of the millicases and all of this we see um really exhibiting this idea that the constitution is very easy to change the politicians can make these changes more or less at will but they don't therefore need to plan for one's in a generation constitutional reform but that rather they can reform the constitution in an essentially reactionary manner and this gives rise to a number of questions questions i want to to think about in these lectures when we see the constitution being reformed and changed in these sorts of ways the emphasis is very much on legislation or if you like external drivers of change on external forces that act on the constitution and that raises the question to what extent does the constitution itself set any parameters on these sorts of matters is it really a genuinely blank canvas is it simply the sum of its legislative parts such that the constitution ultimately means whatever politicians and legislators want it to mean or is it more than the sum of those parts are there actually deeper more hard-wired principles restrictions limitations parameters that to some extent at least and in some respects at least curtail the politicians freedom of action and give rise to the sort of meaningful constitutional uh framework that you might expect to condition uh political action and legislative intervention as opposed to simply facilitating whatever intervention a current majority wishes to visit on the constitution lord newberger in a lecture that he gave in cambridge a few years ago advanced a view of the constitution that seems to align closely with the first of the the views that i outlined earlier here's what he said unlike every other european country we in the uk have no written constitution and we have parliamentary sovereignty so note that he's implying that these two things are essentially alternatives we either have a written constitution which we don't or we have parliamentary sovereignty which on this view we do but then he goes further and says it may be said with considerable force that we have no constitution as such at all we only have constitutional conventions and this is a consequence of parliamentary sovereignty he then goes on to say that this relatively pragmatic outlook of a system with no written constitution and sovereignty involves a very different approach to government from the more principled but less flexible system enjoyed by many other european countries so lord newberger is making quite a bold uh claim here to the effect not just that we have a flexible constitution but that we have no constitution as such at all at least not in the sense that many european countries would regard the notion of a constitution now the idea that we have no constitution at all is perhaps going a little bit too far and i'm not sure that that is is really that the meaning that lord newberger needs to convey here what i think he's trying to tell us or what he's trying to argue is this even if we have a constitution of sorts it's a constitution that's radically different from the kind of legal power limiting parameter setting constitution that we would generally expect to find and that we do find in many other countries so even if we um take with a pinch of salt his rather provocative statements that we have no constitution as such at all i think he's certainly arguing that the extent that the uk has a constitution it is a highly flexible constitution as distinct from the more durable parameter setting kind of constitution that he's contrasting it with i want just to finish the this first lecture by reminding you of one or two points that we examined right back in the first series of lectures in constitutional law just by way of a reminder and just to set up the discussion for the remaining lectures in this series so first a reminder of what it is that we expect constitutions to do now there are lots of ways of of carving these other lots of ways of defining the expectations that we might have but for the purpose of these lectures i thought it was worth drawing attention to four points in particular four expectations that we might have of a constitution first but it lays down some basic ground rules ground rules which determine the powers of different constitutional actors be they uh the government or lawmakers or judges and that in setting down those ground rules impose some sort of meaningful sort of rules of the game on those who are involved secondly and of course these things are not hermetically sealed one thing very much sort of bleeds into the next secondly we might expect a constitution to both allocate state power and limit state power so to determine what it is that the different branches of government can do and also to tell us what they can't do in the course of doing that thirdly we may expect the constitution to institutionalize to embed and to uphold basic values such as democracy and the rule of law and then fourthly again in the course of laying down these ground rules and in the course of allocating and limiting state power we may expect the constitution to set out and provide for the protection of fundamental human rights so like i said these things are not uh sealed off from each other they're very much interconnected but these are the kinds of things that we may expect a constitution to do and i hope it's already clear from what i've said earlier in this lecture that the extent to which these expectations can be met might differ quite significantly depending on the relative extent of the constitution's flexibility as distinct from its durability and we may even doubt the extent to which an extremely flexible constitution can deliver on these sorts of expectations i also want to remind you of the the key principles that we have looked at throughout this course those principles of course are the sovereignty of parliament the rule of law and the separation of powers they want to return to those principles in these lectures and to ask some questions about the relationship between them in particular i want to ask does the sovereignty principle trump all of the others or are the other principles to some extent resilience and are they resilient even in the face of legislation that may appear to threaten them if we side with the view that sovereignty trumps everything else then this would really align with what we might call a legislated for view of the constitution a view which says that ultimately the constitution is not more than the sum of its legislators for parts but rather it is a blank canvas on which parliament can paint at will and to the extent that other things get in the way of that those other things are swept aside by the intervention of an all-powerful sovereign parliament that can at the end of the day override anything that gets in its way in contrast if we side with the view that the other principles are at least to some extent resilient then that would reflect a view of the constitution that imbues it with greater inherence or innate content a parameter setting durable view of the constitution that is more than simply the sum of the legislation that parliament enacts and that may even to some extent at least limit the capacity of politicians and legislators to manipulate and shape and override other constitutional features one final point i want to remind you about is a distinction that again i drew in one of the very first lectures in this course between hierarchical and flat views of the constitution the notion of hierarchical and and flat constitutions is uh is complex and there are different ways that we can understand this is the british constitution hierarchical well in in one sense of course there is a hierarchy of legal norms for instance primary legislation enacted by the westminster parliament is superior to in the sense that it can take priority over all other forms of law such as secondary legislation uh devolved legislation or at least on a orthodox view the common law there are other sentences in which the constitution might be regarded as hierarchical we have for example constitutional statutes which give which have a different status in law albeit in modestly different status from ordinary statutes but leaving those points aside significant though they are in other important senses at least on an orthodox view the constitution is flat it's flat in the sense that constitutional law is not a separate special or higher category of law rather constitutional law is merely one kind of regular law all law enacted by the sovereign parliaments on this view has an equal status leading to one side the modest difference is implied by the constitutional ordinary statute distinction and this means ultimately that everything is up for grabs because parliament can intervene and it can change whatever it wants to simply by passing another piece of legislation of course there are other factors that challenge that view the role of the common law constitution the role of common law constitutional rights the role of the courts perhaps to safeguard the rule of law and the separation of powers in the face of legislation that may seem inconsistent with it and so this distinction between hierarchical and flat understandings of the constitution is another device that we can use to orientate our analysis of whether or not ultimately the constitution is wholly flexible or has a durable or an enduring quality to it that makes it more than just the sum of the parts that parliament wills into existence from time to time so let me just finish this first lecture by summarizing uh and returning to this distinction between the two views on the flexible view the constitution is just the sum of its parts on the durable view it may be more than the sum of those parts on the flexible view everything is up for grabs the sovereign parliament can do as it wishes but on the durable view some aspects of the constitution may be fixed because they are at least more difficult to interfere with or displace on the flexible view the constitution lacks meaningful inherent content because ultimately none of it is inherent save the notion that parliament is sovereign because everything else can be changed by parliament on the more durable or enduring view there is inherent content that may at least be hard to get rid of constitutional values such as democracy and the rule of law constitutional rights and finally on the flexible view sovereignty must trump everything else sovereignty on this view is a kind of steamroller which simply gets rid of anything that lies in its way on the more durable or enduring view of the constitution there is a more complex relationship between our three key principles and the notion that sovereignty simply flattens everything that gets in its way gives way to a more subtle more nuanced view as to how those three principles relate to and operate on each other so that's just a summary of of those two views of the constitution and what i want to do in the remaining lectures in this final series is to return to some familiar ground by looking back at issues such as judicial review and ouster clauses devolution the protection of human rights and the lessons that we've learned through membership of and exit from the european union to try to build up a clearer sense of which of these two views is correct or perhaps more accurately um the the degree of balance that exists in the constitution between these two different understandings of it so we will um begin that inquiry in the next lecture when we look at judicial review