When it was introduced in 1999, devolution for Scotland, Wales, and Northern Ireland was recognized as a constitutional change of pivotal importance. This article argues that devolution has been a dynamic process which has triggered further important constitutional changes. The first section provides a conceptual discussion of devolution by comparing it with federalism as a system of territorial government. In order to further develop the argument, attention is then concentrated on the evolving characteristics of the respective systems in Scotland, Wales, and Northern Ireland. Particular attention is devoted to crucial issues of constitutional design. For example, this includes the failure to establish a link between revenue raising and spending in Scotland; the creation of a Welsh Assembly without sufficient law-making powers; the debate over the functions granted to the Northern Ireland executive. Next the discussion turns to the so called West Lothian question which draws attention to the most pronounced asymmetry caused by devolution, namely, the implications of not having an equivalent level of devolved government for England. Finally, the discussion examines the impact of devolution on legislative procedures and the use of legislative consent motions. The article concludes by considering the trajectory of the changes to each devolved system and related constitutional implications.
The introduction of devolution under the new Labour government elected in 1997 was a radical constitutional change; however, it was not undertaken as part of a wider strategy of constitutional transformation.1 Rather, the package of measures contained in each devolution statute and subsequently ratified by referenda represented a distinct and pragmatic attempt to solve particular problems and aspirations associated with Scotland, Wales, and Northern Ireland. The schemes set in place, under the 1998 legislation, were meant to confer sufficient power to satisfy local political conditions while also addressing the dissatisfaction felt in the most far-flung parts of the United Kingdom with the centralizing tendencies that had been emanating from Westminster under the previous Conservative administration.2 In its effect, devolution has also contributed significantly to creating what has been termed “a multi-layered constitution,” featuring a hollowing out of central government power, which has come to be located at several different levels and which is exercised in many different ways, adding greatly to the complexity of modern governance.3
The discussion that follows demonstrates how devolution has been employed in the United Kingdom in a somewhat different way from federalism as a mechanism for organizing the division of powers and functions between national and subnational government. However, it is mainly argued here that it is incorrect to regard these changes as forming a new constitutional settlement.4 While it is true that the nature of the Constitution has been transformed in fundamental respects, and that certain local aspirations in Scotland, Wales, and Northern Ireland have been met, devolution has triggered a process of ongoing constitutional change at many levels. There was a lack of any overall reflection on the wider constitutional impact that would be caused by the extreme asymmetry in the way power has been distributed and exercised. For example, we will see that the Scottish government, now under the control of the Scottish National Party, only views the current arrangements as a staging post on the road to full independence. The Government of Wales Act (GWA) 2006 put the seal on a second phase of Welsh devolution by granting the devolved bodies enhanced lawmaking powers; however, this was also an acknowledgment of the limitations of the original scheme. Devolution in Northern Ireland has been plagued with difficulties, leading to suspension on three occasions up until its most recent and so far sustained relaunch in 2007. More generally, the funding arrangements for devolution under the Barnett formula,5 which have remained in place since its launch in 1999, have been called into question and may soon be replaced by an alternative method of revenue raising.
Perhaps the most serious constitutional imbalance has concerned the implications for Westminster and the lack of any equivalent form of government for England. In constitutional terms, it is as if each nation comprising the U.K. has embarked on a journey with an uncertain destination. Viewed from a rather different perspective, it will also become apparent that devolution has not only involved the introduction of innovative legislative and oversight processes in Scotland, Wales and Northern Ireland, which have so far proved more resistant to executive domination than their counterparts at Westminster, but it has also had unanticipated consequences here, as well. One such result, which will be discussed briefly below, has concerned the continuing importance of Westminster legislation in the devolved areas of the United Kingdom.6 In view of the many changes in the form of devolution alluded to in this essay, it is suggested that not only is devolution itself a dynamic process but that it has also exerted a major influence on the development of the U.K. constitutional system.
2. Comparing devolution to federalism
In terms of constitutional design, federalism and devolution have certain characteristics in common but at the outset there are important distinctions which also need to be made. The United States is frequently thought of as a prototypical federal system. Certainly, it was the first modern constitution to exhibit key federal characteristics which have been widely replicated in other constitutions.7 The core principle of separation of powers is employed equally at national and at state level. Indeed, there is an institutional-mirroring effect with the national institutions of president, Congress, and Supreme Court almost precisely replicated in each state by governor, state legislature, and a state supreme court, and with identical powers and functions granted to all the states that comprise the federation.
Although the federation which comprises the United States of America has greatly expanded from the original thirteen states that declared independence, there has been a symmetrical approach to the conferment of powers and functions to the individual states.8 In fact, the majority of federal systems are symmetrical9 in their conception, and all federal systems have been conceived as part of a written constitution. On the other hand, the asymmetry of devolution is one of its most distinctive features. In broad terms, U.K. devolution has been described as involving “… the transfer of powers from a superior to an inferior political authority. More precisely, devolution may be defined as involving three elements: the transfer to a subordinate elected body, on a geographical basis, of functions at present exercised by ministers and Parliament.”10 However, with U.K. devolution there has been no standardized constitutional method of approaching the task. From this discussion, it will become clear that the devolved systems for Scotland, Wales, and Northern Ireland are each significantly different from the other, with each devolution statute functioning almost as a constitution for that part of the United Kingdom, while no devolution of any kind has been introduced for England. Moreover, it will be apparent from this discussion that a new dynamic has been created by the lack of constitutional balance created by these extremely diverse conditions.
Further, in a formal sense, federalism is often regarded as a method for sharing sovereignty among governments within a single state as part of a rigid written constitution. For example, in the United States the powers not delegated to Washington under the U.S. Constitution are reserved to the states.11 Provided that there is no conflict with constitutional provisions, the states have legislative powers over certain areas ranging from criminal law to family law. By way of contrast, a crucial feature of devolution is that, despite the conferral of considerable powers, including in the case of Scotland and Northern Ireland the introduction of a subnational body with lawmaking power, legal sovereignty is retained by the Westminster Parliament. The devolution legislation not only has elaborate provisions to prevent sovereignty from becoming undermined, for example, in the form of prelegislative and postlegislative scrutiny,12 but further, once an act of the Scottish Parliament or Northern Ireland Assembly has been passed, the Scottish High Court of Justiciary and ultimately the U.K. Supreme Court will be responsible for deciding the limits of the legislative competence of the Scottish Parliament or Northern Ireland Assembly. Judicial review can be used to determine “a devolution issue,” and this may involve the Court's declaring an act of the Scottish Parliament or Northern Ireland Assembly invalid. In practice, the extent to which this distinction is important might be contested.
Both federalism and devolution have been adopted as constitutional strategies to address problems that are essentially political. It has been observed that “[f]ederalism developed as a response to the ancient question of how to link separate political communities together in order to pursue effectively objectives unobtainable alone, but without submerging their own identities.”13 Federal constitutions have been introduced as a method of accommodating diversity, especially in large nation-states. It has been argued that “[a]t a deeper level, the contemporary constitutional agenda of sub-state national societies also represents a theoretical challenge to those conceptual and normative assumptions which underpin a monistic approach to liberalism and to liberal constitutionalism—assumptions which presuppose the existence of only one people or demos within the state.”14 The identity of the individual units associated with the confederation is recognized, and this might include the accommodation of tensions between linguistic, ethnic, and religious groups.15 The special status of Quebec in Canada would be an obvious example.16 Devolution has been adopted for similar reasons in Indonesia (Aceh), Spain (Catalonia, Basque Country, and Galicia), and, perhaps most prominently, in the United Kingdom. In fact, as we will observe below, the form of devolution introduced under the Northern Ireland Act 1998 results directly from the Belfast (Good Friday) Agreement of 1998. It not only creates a unique system of compulsory power sharing at every level of decision making to ensure joint participation by both communities in the processes of government but also, as we will see when discussing Northern Ireland below, it requires supranational, multileveled, and multilayered cooperation in the form of North / South Ministerial Council and the British-Irish Council.
In many federal systems, the Supreme Court or a constitutional court is responsible for policing the boundaries between the component parts of the system via judicial review of legislation.17 In the case of the U.K., devolution issues can be referred to the U.K. Supreme Court for judicial resolution; however, despite the range of measures to rein in the powers of the devolved institutions in the U.K., the legal contestation of these powers has so far been marginal.18 One reason for the lack of litigation associated with the allocation of functions since the introduction of devolution has been because concordats have been of practical importance for the administrative implementation of devolution.19 Concordats emerged fairly late in the process and “represent a further step down the road of juridification in the form of ‘bureaucratic law.’ ”20 Thus, for a picture of U.K. devolution to come into any sort of focus we find that, certainly at an administrative level, reference must be made to this developing body of nonjusticiable soft law. Concordats consist mainly of a memorandum of understanding linked to informal, mostly bilateral, agreements between the Westminster government and the devolved administrations. They have been referred to as “a form of codification of the processes of government”21 that have not only contributed significantly to continuity and the smooth transition of policy but have also helped facilitate policy coordination between the many overlapping layers of modern governance.22
In terms of administration, devolution should not be regarded as a fresh start. On the one hand, the policy initiatives in Edinburgh and Cardiff have been and continue to be implemented by a cadre of civil servants schooled in the traditions of the U.K. home civil service. On the other hand, the ground rules for the operation of devolution have been negotiated by officials from the Westminster government mainly on their terms. In consequence this network of concordats have been, in effect, employed as a means of setting an unofficial seal on an existing bureaucratic culture centred upon the influence of Whitehall and the Cabinet Office.23 In a positive sense this approach helped to achieve continuity in policy administration in a changed constitutional landscape but at the same time this has meant that existing civil service custom and practice is perpetuated as part of these intergovernmental relations.24
At a certain level, federalism and devolution both concern the distribution of powers and functions between a national and a subnational layer of government, and so, in a practical sense, it is not surprising that there are many common issues to address. For example, it will nearly always be the case that national government predominates over economic management and retains responsibility for defense, foreign affairs, international trade, and immigration. Further, certain laws relating to individual citizens apply throughout the nation with common agencies for law enforcement. In both cases there will be democratically elected institutions at the national and subnational levels, often including a lawmaking process, although in other respects the precise form of federal and of devolved systems will be adjusted to suit local conditions. This means that there is no set pattern for the division of competences between national and subnational governments, which is what distinguishes a federal system from devolution. But in both cases there is scope for changing the distribution of functions and powers between the two levels of government. For example, policing and justice powers were transferred to the Northern Ireland Assembly from the Westminster government in April 2010, following the Hillsborough Castle Agreement. With respect to the United States, Mark Tushnet has recently pointed to a contrary trend, observing that the “[n]ational government is today essentially a government of plenary power over all subjects” with national law pervading many areas apparently falling within the province of the states. To illustrate the point he notes, somewhat ironically, that robbing a neighborhood grocery store has been made a federal crime.25
In sum, it will be apparent that federalism and devolution, almost inevitably, have shared characteristics since they are essentially addressing the same question, namely, how to define the political organization prevailing within separate polities while maintaining the union of the overarching political system.26 U.K. devolution diverges from most forms of federalism in three crucial respects. These are: the startling asymmetry of its design, which leaves England without any equivalent layer of government; the fact that legal sovereignty is not divided but still ultimately retained by the Westminster Parliament; and the manner of its administration by soft-law concordats, which, in turn, have marginalized the role of the courts in resolving disputes between central and devolved governments. These are distinctive features and, in consequence, devolution should not be regarded as an intermediate step toward federalism.27 Looking to the future, we should remember the pragmatism of the original conception and regard this element as the main guiding principle of devolution. We should therefore expect further incremental adjustments to the existing schemes of devolution in Scotland, Wales, and Northern Ireland to meet the political, economic, and legal challenges ahead.28
3. Reviewing the national dynamics
Devolution has resulted in the four nations that make up the United Kingdom having different systems of government, although, in each case the introduction of devolution has triggered further questions for constitutional resolution.
Scotland has the strongest form of devolved government, reflecting the high degree of support for devolution. Although devolution fell short of the objective of some nationalists, it was expected to satisfy the aspirations of most of the Scottish electorate. In fact, lately there have been more strident calls for an independent nation, a trend to some extent reflected in the political success of the Scottish National Party, which formed a minority government after emerging as the largest party in the 2007 elections. The party is committed to holding a referendum on Scottish independence.
Scottish devolution is based on a single chamber Scottish Parliament (SP) of 129 elected members with full lawmaking powers over devolved functions.29 The SP is elected for a four-year term.30 Following an election to the SP, a government is formed after the SP has nominated a first minister. The first minister is empowered, in turn, to appoint ministers from members of the Scottish Parliament (MSPs) in order to form a Scottish executive (now called the Scottish government). The executive group of ministers is roughly equivalent to the cabinet (under the Westminster system), and the ministerial appointments are made subject to royal approval.31 The SP and government have responsibility for many aspects of Scotland's domestic policy; but at the same time there are particular functions reserved for Westminster.32 The Scottish government is the administrative organ that has taken over most of the powers of the Scottish Office,33 and it is responsible for the implementation of policy in Scotland. The SP also exercises an oversight function by way of “subject” committees, which shadow the main Scottish departments.34 The lawmaking power of the SP, although described as primary legislation, is not comparable with the Westminster Parliament's primary legislation; the SP is strictly limited to matters within the scope of its legislative competence, reflecting the concern of Westminster to retain its legal sovereignty.35 In essence, Scottish devolution introduced a locally elected Parliament, and the functions previously performed by the Scottish Office were assigned to the Scottish government. This gave Scotland improved mechanisms of accountability that involve an increased level of political participation and representation.36
From the outset, the arrangements in Scotland had weaknesses with a potential for undermining the stability of the new structure. In particular, the Scottish Parliament and government were granted limited tax-raising powers.37 These were unlikely to be used because of the political unpopularity that would be generated by adding to the tax burden in Scotland. This has meant that the method of funding for Scotland and, incidentally, for Wales and Northern Ireland, has remained under the preexisting block-grant system,38 which is determined by the Westminster government.39 In one sense, the secure funding base made a considerable contribution to the smooth transition at the time devolution was introduced. The relatively generous financial provision from Westminster had allowed each devolved administration considerable flexibility in funding the competences falling under its remit. This so-called Barnett formula works by establishing a ratio by which the total spending is fixed in relation to England. Thus, the levels of spending made available to Scotland, Wales and Northern Ireland are related to the sums allocated in the same designated policy areas by the Westminster Parliament.40 An overall budget is fixed annually by the Westminster Parliament in each departmental field. The allocations for an increase or decrease in expenditure are made according to a ratio calculated on relative population size. In effect, then, this formula has guaranteed an amount reflecting the proportion of the spending allocated to England.
One destabilizing dynamic at work in this arrangement is that Scotland's declining population since devolution has resulted in a progressively less generous allocation.41 However, the conspicuous lack of any integral link between revenue raising and the ability to spend at the devolved level has remained a more fundamental problem. There are calls to increase the amount of revenue raising at the devolved level, and to replace the current Barnett formula method of funding allocation with a needs-based system for calculating the contribution from Westminster.42 Most significantly, the Calman Commission—which was established by the Scottish Parliament and U.K. government to review devolution ten years after its introduction—has recommended the abolition of variable income tax and its replacement with a new Scottish rate of income tax. This would be reduced by 10p in the pound while a new needs-based block-grant allocation from Westminster would be reduced accordingly. In addition, Scottish ministers would be given additional borrowing powers, and the Scottish Parliament would have the power to introduce new taxes applying in Scotland, though only with the consent of the Westminster Parliament.43
It is important to keep in mind, before we move on, that, as a response to the intensity of nationalist sentiment, Scotland was granted the strongest form of devolved government. Moreover, in a number of fields, such as education and care for the elderly, the scope for policy divergence in comparison with England has been very apparent.44 The issue of “Sewel motions” with respect to areas of overlapping responsibility will be discussed in a later section; still, the impact of any revision to the distribution of competences between London and Edinburgh is also worth mentioning. The grant of more competences to Scotland not only arises as a current, contentious issue, at a political level, but it will also impact on the conduct of intergovernmental arrangements, for example, by confirming the redundancy of the Scottish Office in connection with the conduct of Scottish affairs.45 Lastly, although the Scottish Parliament was granted both lawmaking powers and a limited capacity to introduce extra revenue by adding to the income tax, it has in fact been the lack of any routine method of local revenue raising that has emerged as the most obvious weakness of the Scottish system. This shortcoming has prompted proposals for substantial changes to the financial parameters of the system which forms part of the 2010–2011 legislative program at Westminster. At the time of writing in April 2011 the proposals contained in the Calman Commission report to change the rate of Scottish income tax were in the process of being enacted by the Westminster Parliament in the Scotland Bill 2011.
The most limited form of devolution was devised for Wales.46 Although Wales retained its distinctive language and culture when originally brought into the U.K., from the standpoint of law and administration it lacked Scotland's distinctive legal and education system and Wales was more integrated with England. Moreover, it was clear when devolution was introduced that there was much less popular support for this change in Wales.47 However, the limitations of the Government of Wales Act 1998 were such that the devolved institutions in Wales have already been granted additional powers following the passage of the Government of Wales Act 2006. The major original difference was that the Welsh Assembly, unlike the Scottish Parliament and Northern Ireland Assembly, was not granted the power to pass legislation in its own right. The fact that Welsh bills had to take their place in the queue before being shepherded through the Westminster Parliament by the Welsh secretary was regarded as a serious drawback.48 Otherwise the Welsh Assembly only had the power to pass secondary legislation.49 In consequence, there were almost immediate calls after devolution to give the Welsh Assembly the power to pass laws.50 The Westminster government responded by granting the Assembly powers to propose a form of law known as a “Measure of the National Assembly of Wales.”51 These measures are enacted by first receiving scrutiny and approval by the Assembly and, then, the measure is referred to the Westminster Parliament for approval by resolution of each house before being recommended as a new form of Order in Council.52 This procedure created a special form of delegated legislation which potentially could be vetoed at Westminster. However, in practice, the new procedure overcame the problem of securing the passage of legislation required for Wales through the Westminster Parliament. The revised arrangements for Welsh legislation might have proved problematic if there was a strong conflict of wills between the Welsh Assembly and the government in power at Westminster—for example, if different political parties had a majority in the Assembly and at Westminster. In another sense, these measures to enhance the lawmaking capacity of the Welsh Assembly53 have a wider, incidental impact, as there is now distinctively “English” legislation introduced before the Westminster Parliament.54 A referendum in accordance with the provisions of the Government of Wales Act 2006 was held in March 2011 which approved by a large majority (63.5 per cent for with 36.5 per cent against) the conferral of full legislative powers upon the Welsh Assembly.55 In consequence, the Welsh Assembly in common with the Scottish Parliament and Northern Ireland Assembly will soon have powers to pass legislation concerning the policy areas which fall under its competence.
There are some obvious parallels between Scotland and Wales with respect to the electoral system and the organization of the legislative and executive bodies.56 The Government of Wales Act 1998 set up a single chamber Assembly for Wales, consisting of sixty members57 who must be elected every four years by an additional member system. Each elector is given two votes. Assembly members for each constituency are returned by simple majority, while the four Assembly members for each region are returned by a system of proportional representation based on party lists.
In common with Scotland, the Welsh Assembly is required to form policy and take decisions in its particular areas of responsibility. Also, as in Scotland, the cabinet style of government is formed following an election. The newly elected members of the Welsh Assembly vote for a first minister. Once elected, the first minister has the power to appoint an Executive Committee of Assembly Secretaries, which forms the equivalent of a cabinet. The ministerial portfolios of this executive committee (the combinations of policy areas allocated to the individual assembly secretaries) determine the areas of competence of the scrutiny committees (or subject committees) that are subsequently formed to provide executive oversight. The appointments to the executive committee can be from a single party or a combination of parties.
As with Scotland, the Welsh executive took over, by means of transfer orders, most of the administrative functions of the secretary of state for Wales under the Government of Wales Act 1998.58 Cabinet members have the equivalent of departmental responsibility for their given policy areas. Although the National Assembly of Wales was formed as a single corporate body, a de facto division emerged postdevolution between the Welsh Assembly government and the Welsh Assembly as a representative body. The Welsh Assembly government has been recognized under the Government of Wales Act 2006 as an entity separate from, but accountable to, the National Assembly. One significant difference between the approach to devolution in Scotland and Wales is that while the Scottish Parliament was granted general competence, subject to the reserved matters under the Scotland Act, in the case of Wales powers were conferred according to particular areas of policy.59 The Assembly and executive are also responsible for many Welsh nondepartmental governmental organizations, funded and appointed by government.60
From this brief discussion, it will be apparent that there are clear parallels between the general frameworks of Scottish and Welsh devolution, including for example, the method of election and the way a devolved executive is formed. This resemblance will grow a great deal closer should the proposal to give the Welsh Assembly full lawmaking powers gain the approval from the Welsh electorate in 2011. However, the Welsh Assembly has no devolved tax-raising powers (unlike the proposals for Scotland), and no such powers are in immediate prospect.
3.3. Northern Ireland
The Belfast (Good Friday) Agreement of 1998, which was negotiated between the British and Irish governments and the main political players in Northern Ireland, shaped almost every detail of the form of devolved government in Northern Ireland. As the replacement to the Stormont system introduced in 1922 under the Ireland Act 1920, which broke done in 1972, it was the second attempt at introducing devolution to address the issues raised by a community strongly divided on religious grounds.61 A unique form of devolution was introduced in 1999 following the Belfast agreement based on a system of compulsory power sharing between the unionist and republican communities.62 This scheme is based on “… the need to obtain (minority) nationalist consent” so that “the institutions of the new dispensation are consociational at both the legislative and executive levels, with a stipulation that public power must be exercised in accordance with the principle of ‘parity of esteem’ between the two communities.”63 After an election there is a further process in the formation of the executive to determine the allocation of ministerial posts and other positions.
The point is that “[a]ll of the institutional arrangements are based on principles of cross community support. Thus there is no single person who is head of government in Northern Ireland. A bicephalous head of government ‘the First Minister’ and ‘Deputy First Minister’ take charge of a multi-party executive.”64 Under the revised arrangement, following the St. Andrews Agreement,65 the nominating officer of the largest political designation nominates a person as first minister while the nominating officer of the second largest political designation nominates a person to hold office as deputy first minister. A method of proportional representation determines the allocation of ministerial posts and other positions.66 Furthermore, the notion of power sharing is carried over into the decision-making process itself. Key decisions have to be taken on a cross-community basis, in the sense that for a decision to be approved there has to be a majority for the measure among unionists and nationalists.67 Any agreement would have to be founded on satisfying the basic demands of the conflicting factions. Thus, changes to these basic elements would only be possible with the consent of each community. The devolved assembly in Northern Ireland, once chosen, then elects an executive, which assumes full legislative and executive authority for all devolved matters.68
The Belfast (Good Friday) Agreement of 1998 included a complex supranational dimension that also involved the Irish Republic and the distinct nations constituting the U.K. Although Northern Ireland itself was born out of Ireland's troubled history,69 the United Kingdom and the Republic of Ireland are now separate, independent nations and coequal member of the European Union. Irish Nationalists have a united Ireland as their ultimate goal. Under the Northern Ireland Act this can only be achieved with the consent of the majority.70 However, to go some way toward satisfying the affinity that nationalists might feel with Ireland, the Belfast (Good Friday) Agreement contains some important provisions involving Ireland. The North/South Ministerial Council (NSMC) was formed to bring together members of the executive of the Northern Ireland Assembly and representatives of the Irish government for the purposes of cross-border cooperation on issues of common interest.71 Six North/South implementation bodies have been established as part of the NSMC to implement policy.72
By way of contrast, the unionists were keen to consolidate the area's connection with the remainder of the United Kingdom. As part of the same agreement, the British-Irish Council was established as a body to consider broader mutual interests with the U.K., and it includes elected representatives from the Scottish Parliament, the Welsh Assembly, the Channel Isles, and the Isle of Mann, as well from Northern Ireland. In seeking greater integration between nations and dependent territories it has features comparable with the Nordic Council, which also includes a combination of nations and autonomous regions. One should add that the British-Irish Council does not include distinct representation for England.73 The latter's avenue of participation may be found in a further institutional structure with a supranational aspect, the British-Irish Intergovernmental Conference, which meets regularly to promote cooperation between Ireland and the United Kingdom on matters of mutual interest, in particular, criminal justice, security, prisons, and policing. Meetings are attended by ministers of the Northern Ireland executive, when matters concerning Northern Ireland are on the agenda. The effect of this multiplicity of interwoven institutional contacts is to cement engagement and cooperation at a number of levels.74
Devolution in Northern Ireland was designed specifically to bring peace. Although based on the election of an Assembly with lawmaking powers and with competences similar to those of Scotland and Wales, the Northern Ireland system displays many unique characteristics, most notably: the method of election of the Northern Ireland Assembly; the degree of permanent power sharing at every level of government; the emphasis on peace and reconciliation through the recognition of human rights and the promotion of equality of opportunity;75 and the dedicated national and supranational bodies (discussed above) set up to satisfy the respective aspirations of both communities. The fact that devolution has been suspended on three occasions, before it was restored most recently in May 2007, illustrates the fragility of these arrangements. Not only are there still some dissident republican groups in Northern Ireland which refuse to accept devolution but also the viability of the entire process may be threatened by outstanding issues, for example, those relating to security and policing, which were not fully resolved as part of the original agreement.76
3.4. The West Lothian question and the consequences for England
We next turn to England, by far the most populous part of the United Kingdom,77 which was entirely omitted from the devolution equation in the sense that no equivalent nationwide layer of regional or devolved government was proposed to coincide with devolution elsewhere. Nevertheless, devolution has exerted a significant influence on the workings of the Westminster system as well as prompting calls for further constitutional reform. The so-called West Lothian question has been recognized since the conception of devolution, and it will simply be referred to here as an important constitutional issue created by the introduction of asymmetrical devolution. In essence, establishing a Scottish Parliament and, to a lesser extent, a Northern Ireland Assembly and a Welsh Assembly plays havoc with the notion of representative government in the United Kingdom. Westminster Members of Parliament (MPs) representing English, Northern Irish, and Welsh constituencies no longer vote on the devolved matters, which now become the responsibility of devolved bodies; however, the Scottish, Northern Irish, and Welsh MPs at Westminster retain the right to vote on all bills coming before the Westminster Parliament, including those concerning domestic policy for England. Furthermore, as a result of the transfer of many domestic functions to the Scottish, Welsh, and Northern Irish executives, the Scottish, Northern Irish, and Welsh Westminster MPs have a greatly reduced role to play with regard to their own constituents. The obvious line of accountability for the devolved areas in domestic affairs is through their representatives in Edinburgh, Belfast, or Cardiff.78
The other related question is the lack of any equivalent level of representation for England. Voices of discontent at the lack of provision for England have been heard most loudly in the socially disadvantaged English regions bordering Scotland and Wales. This is where one finds the strongest perception of having missed out economically in comparison with the devolved parts of the U.K.79 Otherwise, there has been minimal attention paid to assessing the impact of devolution on the nondevolved parts of the U.K.80 Nevertheless, since the advent of devolution the failure to provide a layer of comparable government for England has become an emerging issue that has not been addressed.81 The Campaign for an English Parliament, as its name implies, presents a case for the introduction of an English Parliament.82 A proposal for a body equivalent to the Scottish Parliament appears to have some merit, since setting up a Parliament for England could provide the constitutional basis for correcting the glaring asymmetries relating to representation, accountability, and administration. The introduction of an English Parliament would also bring the U.K. closer to having a genuine federal system.
However, there are some obvious reasons why such a proposal has little chance of implementation.83 First, it enjoys limited support within any of the mainstream political parties or, more widely, with the English electorate.84 Second, an additional Parliament for England with equivalent powers to the Scottish Parliament would be a strong competitor to the Westminster Parliament, which would no longer have a pivotal role in relation to domestic issues. Third, a uniquely English Parliament would be yet another elected political body requiring a fresh cohort of politicians at a time when there is already evidence of voter fatigue with existing elected political institutions and politicians. Fourth, establishing an English Parliament would prompt a wider debate about the financial provisions on which devolution is based and, in so doing, open up fresh controversy over the allocation of resources within the U.K.85 In turn, such controversy might provide further impetus in Scotland for Scottish independence. Vernon Bogdanor has recently argued that if English nationalism were to move from culture to politics it would seriously undermine the union.86 Fifth, an English Parliament would be very costly to introduce. Although there is some evidence that English nationalism has been growing recently there has been little enthusiasm in England, as a whole, for an English Parliament or, indeed, for any equivalent kind of constitutional reform.87
Another response to the asymmetry was the Labour government's flirtation with regional governance in England which exactly coincided with devolution.88 The Regional Development Agencies Act 199889 was initially a vehicle for the introduction of a new policy for regional economic regeneration.90 The 1998 act divided England into eight regions (plus London) and created Regional Development Agencies (RDAs) in order to coordinate regional economic development. The new agencies were made responsible for formulating regeneration strategies to promote business efficiency, investment, and competitiveness within their areas91 by forging links and formalizing relationships with the business sector at regional level. The next step in Labour's exploration of regional governance was a proposal to introduce a directly elected regional government with very limited powers in regions where the proposals were supported by a referendum.92 In the only attempt to launch such an elected assembly in the North East region, the scheme was decisively rejected in a referendum and then dropped.93 Of course, had these very weak regional assemblies been established on an uneven basis, it would have added further to the lack of consistency in the provision of representative government in the United Kingdom.94 The upshot is that only London has a directly elected mayor and a twenty-five-member directly elected London assembly, operating at a level between Westminster and local government, in the form of the inner and outer London boroughs.
An alternative approach to the problem of voting rights for Westminster MPs, which is much less radical than resorting to an English Parliament or to some form of regional government for England, would be to introduce a new political convention or to implement new procedures and rules within the U.K. Parliament that would prevent Scottish and Northern Irish Westminster MPs95 from voting on legislation not applying in Scotland and Northern Ireland.96 It should be pointed out that any attempt to restrict the voting rights of Scottish, Welsh, and Northern Irish MPs at Westminster would be politically controversial, since Labour traditionally relies heavily on the votes of MPs in Scotland and Wales, where its support is concentrated while Conservative support is strongest in England.97 A further problem in introducing any restrictive rule regarding the way legislation is considered by MPs, as it passes through Parliament, concerns the technical difficulties in drafting legislation with this consideration in mind; for example, where there are mix of different clauses, some of which only apply to particular parts of the U.K..98 Although the 2010 Conservative Party manifesto included a pledge to introduce “English votes for English laws,”99 following the general election the ruling Conservative–Liberal Democrat coalition announced its intention to set up a commission to consider the West Lothian question, including the related issue of the voting rights of Westminster MPs.100
4. Devolution and legislation
The legislative procedures used by the devolved legislatures include some elements that appear very novel in contrast with those employed by the Westminster Parliament. For example, draft bills have been used routinely in Scotland to allow for greater consultation and to provide scope for more participation, with the relevant subject committees of the Scottish Parliament taking detailed evidence from interested parties during a period of scrutiny before the legislation goes through its parliamentary stages.101
It is interesting that the procedure at Westminster has since been modified to allow for the much more frequent publication of draft bills in order to facilitate greater consultation before the legislation goes through its parliamentary stages.102 The latest published guidelines from the U.K. Cabinet Office make this clear: “The Government is committed to publishing more of its Bills in draft before they are formally introduced to Parliament, and to submitting them to a Parliamentary Committee for pre-legislative scrutiny where possible.”103 At Westminster, smaller specialist departmental select committees normally undertake the task of prelegislative scrutiny but do not examine legislation during its formal passage through Parliament. On the other hand, the subject committees, which operate in all the devolved legislatures, have been designed to combine the specialist executive oversight function of House of Commons departmental select committees with the scrutinizing function of the House of Commons public bill committees, which are responsible for examining legislation during its committee stage in the Commons.104 These subject committees also differ from both the public bill committees and the select committees at Westminster in that they were intended to have a powerful legislative role, being able to introduce bills in their own right.105
Another interesting dynamic relating to the legislative activity of the Scottish Parliament and Northern Ireland Assembly concerns a practice that has developed to determine whether the devolved legislatures always need to legislate when a matter falls within their competence. As already explained, in theory at least, devolution has left intact Albert Venn Dicey's core principle of U.K. Parliamentary sovereignty. Westminster is still able to legislate for any part of the U.K., and the devolution legislation, at any time, can be repealed or modified, as was the case with the Government of Wales Act 2006 (which increased the powers of the Welsh Assembly). It should also be remembered that the distinctive status of Scotland, Wales, and Northern Ireland was previously recognized through special procedures that were in place in the Westminster Parliament prior to devolution in order to oversee the passage of legislation directed at these parts of the United Kingdom. Nevertheless, it was predicted that following devolution the supremacy of Parliament would have a “different and attenuated” meaning, so that “instead of enjoying a regular and continuous exercise of supremacy, [Westminster] will possess merely a nebulous right of supervision… .”106 In other words, in practice, Westminster would find it difficult to legislate against the wishes of the Scottish Parliament or the Northern Ireland Assembly postdevolution.107 Moreover, there was an expectation that a convention would be established whereby the U.K. Parliament would not normally legislate with regard to devolved matters, and that Westminster legislation applying to Scotland and Northern Ireland would be an unusual occurrence and would take place only with the agreement of the relevant devolved legislature.108
Since devolution, the so-called Sewel convention has emerged,109 the idea behind it being to recognize that the Westminster Parliament retains (given its legal sovereignty) full legal power to legislate on devolved matters while also recognizing that the spirit of devolution implies that political power rests with the Scottish Parliament or the Northern Ireland Assembly. The government thus undertook not to support relevant legislation in the Westminster Parliament without the prior consent of the Scottish Parliament or Northern Ireland Assembly. This consent is embodied in a Sewel motion or, as it is otherwise termed, a “legislative consent motion.” Rather surprisingly, a more detailed review of the legislative record reveals that, in fact, Westminster legislation applying to Scotland has abounded since 1999.110 This has occurred to a much greater extent than anticipated. Before a motion is put, the matters are discussed first by the relevant subject committee of the Scottish Parliament. Since the Scottish election in 2007, consent motions were passed by the Scottish Parliament with respect to fifteen pieces of legislation.111
By way of contrast, in Northern Ireland the legislative consent motions (not referred to in Northern Ireland as Sewel motions) were little used, initially, during the period between 1999 and 2003 when the Assembly was frequently suspended.112 However, the trend since the Assembly resumed operating in May 2007 seems to be broadly similar to that discernible in Scotland,113 although the Northern Ireland Assembly had no formalized procedures with regard to legislative consent. Until the 2010–2011 session, there were only guidance notes114 outlining the process which the U.K. government and the Northern Ireland executive should follow when seeking consent from the Assembly for such a motion.115
To some degree, the use of Sewel motions could be accounted for by the fact that the same party was in power both in Westminster and Scotland and shared a commitment to common policy objectives during the initial phase of devolution. Moreover, there is a need to comply with international obligations on a nationwide basis116 and for Scottish participation in particular initiatives involving the whole of the U.K.117 Also, in certain areas there may be an advantage in having common regulatory measures.118 Alan Page and Andrea Batey have explained that there were straightforward practical reasons for the continuing dominance of U.K. departments in promoting legislation across borders. For example, seeing legislation enacted on a U.K. basis prevents unacceptable delay in the introduction of measures likely to be popular with the electorate in Scotland, while leaving more time for the Scottish executive to pursue its own agenda of reform. Another reason for the popularity of Sewel motions has been to avoid the prospect of legal challenge to the competency of Scottish legislation in politically controversial areas. This is because Westminster legislation, unlike Scottish legislation, is not open to direct challenge in the courts. In consequence it has been explained that “[w]here there is [likely to be] disagreement between London and Edinburgh over whether matters are devolved, the executive may find itself effectively faced with a choice between consenting to Westminster legislation in areas it regards as devolved, and the risk that the U.K. law officers will refer any Scottish bill to the Judicial Committee of the Privy Council (now to the U.K. Supreme Court).”119
The Sewel convention, according to Page and Batey, allows Scotland to have the best of both legislative worlds. They point out: “Without it, the stark choice would be to do without worthwhile legislation in Scotland or, in those cases within the legislative competence of the Scottish Parliament, to put aside [its] own legislative priorities to make room for a separate Bill… .”120 The evidence so far indicates that the Scottish Parliament and Scottish executive have assumed a much less prominent legislative role than seemed likely, given the powers granted to them under the Scotland Act (the same point, to some extent, applies to Northern Ireland). The evidence also suggests that, although there has been marked policy divergence in certain fields, there has also been, as a result of Sewel motions, a continuing drift toward uniformity, which pervades the devolved system of government.121
Devolution is now accepted by all the main national political parties as well as the nationalist parties in Scotland and Wales and the main parties in Northern Ireland as an important part of the constitutional landscape. However, it has been argued in this article that the introduction of devolution, as part of the U.K. uncodified constitution, is not truly a settlement at all; rather, it has set in motion a constitutional process of considerable complexity. It has many diverse implications, though it is without any overtly general or overarching objective for the United Kingdom. Instead, the aim has been to provide specifically tailored institutional responses for Scotland, Wales, and Northern Ireland. In part, this is a reflection of the British “make do and mend” approach to constitutional questions.
Despite the fact that devolution was introduced to deflect nationalist trends, nationalists are either in power or share power in all the devolved bodies. Moreover, the Scottish Nationalist Party is keen to press for a referendum on independence. In practice, the attempt to fix the dissatisfaction felt in Scotland, Wales, and Northern Ireland has posed a whole new set of questions. Most obviously, devolution draws attention to disparities in the Westminster Parliament and the lack of an equivalent level of government for England. The imposition of any restrictions on the voting rights of MPs from Scotland, Wales, and Northern Ireland would certainly have a major impact on the functioning of the Westminster Parliament. Turning to another dimension, the financial parameters of the entire system have been increasingly criticized and it has already been noted that a Scotland Bill making fundamental changes to the present method of financing in Scotland has been introduced during the current legislative session.122
Mereu, Nick --- "A Written Constitution for New Zealand?"  NZLawStuJl 11; (2009) 2 NZLSJ 217
Last Updated: 14 January 2013
A WRITTEN CONSTITUTION FOR NEW ZEALAND?
At the time of writing, New Zealand was one of only three countries in the developed world whose constitution was not written.1 This, in itself, shows the modern passion for written constitutions. For countless years academic and public debate on whether New Zealand should adopt a written constitution – and the interrelated topic of whether we should cut our ties from the motherland by founding a republic – has been sporadic. This essay attempts to refine that debate in order to determine the legitimacy of such vast constitutional change for New Zealand.
Part A deals with the reasons for adopting a written constitution. I begin with matters of definition – first, I outline the general need for a constitution, and then proceed to indicate the differences between a “written” and an “unwritten” constitution. Pointing to the fact that written constitutions are globally the contemporary default setting I then ask if, and why, they are superior to their unwritten counterparts.
A brief outline of New Zealand’s constitution ensues. Here, I ask why this country has remained relatively unaffected by a constitutional setup that is, in theory, highly conducive to abuse. In order to better answer this question I take an excursion into the laws of the United Kingdom and Israel; the other two countries that share unwritten constitutional camaraderie with New Zealand. At this stage, I offer a tentative conclusion – it is not the setup that matters, it is the actors.
Part B is concerned with the practicality of introducing a written constitution to New Zealand; impediments to and perils of such a change are discussed. I conclude by highlighting situations conducive
* LLB, University of Otago. Candidate for LLM, Monash University.
1 Philip A Joseph, Constitutional and Administrative Law in New Zealand (3rd ed, Brookers,
2007), p 135.
218 The New Zealand Law Students’ Journal (2009) 2 NZLSJ
to constitutional change, and proffering a reason as to why such change is ultimately unlikely in New Zealand.
A. Written and Unwritten Constitutions
1. Definitional matters
(a) The need for constitutions
Before commencing argument on the merits and demerits of written and unwritten constitutions, I should elucidate the need for a constitution itself, regardless of semblance.
In the 17th century, Thomas Hobbes observed that the nature of man is comprised of three characteristics giving rise to quarrel amongst men: competition, diffidence and glory. This meant that without a “common power to keep them all in awe” men would descend into bellum omnium contra omnes: a war of “every man against every man”, what political philosophers have subsequently termed the “state of nature”.2 This state, wrote Hobbes, meant the lives of men would be “solitary, poor, nasty, brutish and short.”3 In order to avoid the state of nature, men would form societal groups characterised by social contracts – the giving up of certain freedoms, such as the freedom to take the life of other human beings, in exchange for the protection of the group. Part of this social contract involved individuals relinquishing their right to self-govern; instead, an “assembly of men” would determine the direction of society.4
Hobbes wrote at a time when England was plagued by civil war and fear for individual rights was rife – an immense wealth of power did reside in the executive branch of government. In 1611, the English Courts recognised the need for a check on this executive power, holding proclamations made by the King purporting to be law that were not empowered by an act of Parliament to be illegal.5
2 Thomas Hobbes Leviathan (1651), Ch 13.
3 Ibid, Ch 13.
4 Ibid, Ch 18.
5 Case of Proclamations (1611) 12 Co Rep 74.
A Written Constitution for New Zealand? 219
This case recognised the need for what is now referred to as the “rule of law”, which has many a manifestation but for present purposes can be defined as the obligation of the executive to act only in accordance with law – to treat others as they would treat themselves. Implicit in this notion is that members of the executive are not above the law, but rather below it and subject to it, just like ordinary citizens.
Ultimately, it is the rule of law that a constitution seeks to uphold,6 and indeed in 1689 the English Parliament enacted one of the founding constitutional documents of that country – a bill of rights – in order to protect fundamental civil and political rights from interference by executive action.
Over time, while the notion of “rights” has expanded to include positive property and socio-economic rights,7 the focus of constitutions is still in upholding the rule of law and founding “constitutionalism”8 generally by preventing those with power from abusing the power given to them. The need for constitutions is evident: “government without a constitution is power without right.”9
(b) What constitutes “written”?
With the myriad variations of written constitutions in existence, it is not hard to imagine the difficulties that come with imprecise categorisation by definition. No stark contrast can be drawn between written and unwritten; constitutions, by their nature, vary greatly in form and function. Suffice to note for current purposes the sharp definitional divisions I will draw are a far cry from the spectrum of manifestations a constitution can take in practice.
6 I should qualify this by adding “from the perspective of the people”, who, in respect of government, would be more concerned with restricting the abuse of power rather than the other fundamental features of constitutions which legal scholars consider necessary, such as matters of due process.
7 “Positive rights” are those empowering a state to interfere with the lives of individuals
in order to guarantee basic living standards. This is opposed to traditional “negative” rights, which are focussed on keeping the state away from interfering with individual autonomy.
8 “Constitutionalism” is the notion that the rule of law, judicial independence, and the
existence of basic rights are present in a society, regardless of the presence or absence of a constitution itself.
9 Thomas Paine, The Rights of Man (1795), Ch 4.
Paradoxically, it may be necessary to define what is unwritten before being able to define what is written. An academic perspective on point is that of Finer, Bogdanor and Rudden, who argue in the context of the United Kingdom that there are three common features of unwritten constitutions: they are indeterminate, indistinct and unentrenched.10
Indeterminacy is found in the inability to identify, with certainty, the content of any particular constitutional laws. Many matters of great importance to the daily running of a state (with an unwritten constitution) are left to customs, conventions, and Standing Orders of the House of Representatives.11
Unwritten constitutions have an indistinct structure because they identify no supreme law by which ordinary laws can be struck out. In other words, there is no order of precedence in the unwritten constitutional system. Constitutional laws in this sense are a “rag-bag of statutes and judicial interpretations thereof, of conventions, of the Law and custom of Parliament, of common law principle, and jurisprudence.”12
Finally, Finer et al. cite the unentrenched feature of constitutional laws in the United Kingdom as a cause for indeterminate content and indistinct structure. These laws are not given any special status and can thus be changed, repealed, and amended in the same way as any ordinary Act of Parliament.13
Deducing from this useful definition, we can assume that a written constitution is an entrenched document containing a hierarchy of all the important laws pertaining to the configuration of the state it has jurisdiction over. I proceed on this basis.
2. The argument for a written constitution
Like a phoenix from the ashes, written constitutions appear to rise from nations in the wake of a crisis or exceptional circumstance of
10 S.E. Finer, Vernon Bogdanor & Bernard Rudden, “On the Constitution of the United
Kingdom” in Comparing Constitutions (Oxford University Press, 1995).
11 Ibid, Para 4.
12 Ibid, Para 7.
13 Ibid, Para 8.
some sort.14 Beginning in France and the United States of America in the late 18th century, there have been seven “waves of constitution- making” that have occurred as a result of these crises.15 Each time, a written constitution has been chosen as the template for rebuilding the nation; the only country in the wake of a crisis that adopted the unwritten structure was Israel in 1948.
Why then are written constitutions the global ‘default’ setting? Written constitutions have obvious appeal to fledgling or recuperating nations – they are, by their nature, harder to change and easier to apply than their unwritten counterparts.16 For a nation attempting to rebuild itself out of the tatters of crisis, choosing a lapidary code akin to the Ten Commandments seems far more practical than colloidal customary law.
An unwritten constitution that is heavily reliant on custom and experience would surely not win favour with a public that has had to experience first hand the abuse of previous constitutional actors. Written constitutions codify the rule of law, making it an immovable force that can withstand all forms of abuse. Therefore, it is the best launching pad for constitutionalism.
3. Are written constitutions working?
It is not possible to measure the desirability of written constitutions without having regard to their success in practice. Are written constitutions upholding the rule of law in nations that have adopted them? That is to say, is there constitutionalism where there are written constitutions?
The answer to this question is convoluted. For the sake of simplicity, I answer: in some countries yes, in others no. The United States of America, Canada, France and Australia are all obvious examples of the success of constitutionalism under written constitutions – I need not evidence their comparatively enviable democratic records here.
14 The exceptions to the rule are Sweden and Canada.
15 Jon Elster “Forces and Mechanisms in the Constitution-making Process” (1995) 45
Duke L.J. 364, p 368.
16 Due to the aforementioned inherent features of determinacy, distinctiveness and
entrenchedness; see above Part A, 1 (b).
Africa is a different story, with a long postcolonial history of constitutions without constitutionalism. I need only make reference to the Rwandan and Sudanese genocides of the past decade as extreme examples of a complete lack of basic human rights. More recently still is the Zimbabwean presidential election turmoil.
Why has constitutionalism largely failed for Africa’s nations? As the sun was setting on colonial rule in Africa, departing colonisers left bundled constitutional packages with the leaders of the African nations. They came, wrote H. Kwasi Prempeh:
Complete with protections for opposition parties, individual rights, independent courts, and some measure of regional or local autonomy, Africa’s founding constitutions ... were supposed to lay the foundation for postcolonial constitutionalism. However, soon after the attainment of sovereign statehood Africa’s new managers discarded their so-called independence constitutions.17
These “new managers” were the imperial presidents, who promptly set about ignoring the constitutions given to them and the principles contained therein – they were generally considered a hindrance to national development. Seen as liberators from colonial rule, the people did not object to the wayward decision-making of their presidents. With nothing to check the power in the newfound executive, the tyranny of authoritarianism emerged. On the African continent to this day, there has been at most incremental progress in certain countries towards constitutionalism and democracy in general.
This sharp divergence in the success of written constitutions is a strange anomaly, which I will attempt to explain later in this part.18 I turn now to give an outline of New Zealand’s constitution to compare with the written ‘ideal’.
17 H. Kwasi Prempeh “Africa’s “Constitutionalism Revival”: False Start or New Dawn?”
5 Int’l J. Const. L. 469, p 473.
18 See below, Part A, 6.
4. The New Zealand constitution
New Zealand’s constitution is drawn from numerous legal and non- legal sources. In the words of leading constitutional academic Philip Joseph, it is an:
informally organised framework of rules that establish and empower the three branches of government... define their functions, composition and relationships inter se, and provide for the rights and duties of citizens.19
Statutes are the premier legal source of New Zealand’s constitution. The Constitution Act 1986 is the most fundamental piece of legislation as it attempts to bring together laws of constitutional significance into the one statute.20 Nevertheless, there are numerous pieces of important legislation, such as the New Zealand Bill of Rights Act 199021 and the Electoral Act 1993.22 Despite this significant constitutional change in the late 1980’s and early 1990’s, a simple Parliamentary majority could yet undo all the progress made in giving our constitution a greater degree of determinacy.23 Other sources of the constitution include common law, royal prerogatives, delegated and subordinate legislation, international law, the Standing Orders of the House of Representatives and constitutional convention.24
Of particular note is the wealth of power that resides in the legislative branch of government. As Joseph notes, there are “no limits on legislative power in a unitary state with no federal divisions, no entrenched laws, and no constitutional Bill of Rights.”25 Parliament is supreme, having full power to make laws,26 and thus “can do
19 The Laws of New Zealand Volume 7 (Butterworths, 2003), p 2.
20 See Constitution Act 1986, Long Title.
21 An Act protecting the rights of citizens from interference by the Government and those with public power.
22 An Act outlining significant features of electoral law, including the way Parliament is to be structured and composed after an election.
23 With the exception of six provisions in the Electoral Act 1993, which require a three- quarters majority in Parliament, or a national referendum.
24 See generally The Laws of New Zealand above n19, pp 4-5.
25 Ibid, p 13.
26 Constitution Act 1986, s 15(1).
everything but make a woman a man, and a man a woman.”27 This concentration of power into one head of government is of concern; in theory, Parliament could pass any law they saw fit, no matter how oppressive or immoral.
It is this kind of potential for constitutional abuse that a written constitution remedies. While nothing quite as drastic as the African experience has happened in New Zealand as yet, there have been incidents in the past that outline just how conducive to abuse our unwritten constitution can be.28 But these incidents have not resulted from poorly distributed power amongst the branches of government; rather they have been a result of manipulation of constitutional laws to suit the personal goals of a wayward member of the executive. I refer here of course to Sir Robert Muldoon, whose actions in 197529 and
198430 served to bring New Zealand the closest it has come to a constitutional crisis.
Despite these incidents, New Zealand’s constitutional history is not rife with abuse by constitutional actors. Rather, it has had quite a placid existence. The question thus arises: how has New Zealand managed to keep such a clean record in light of this constitutional structure that is (in theory) so conducive to abuse? Perhaps international examples can shed some light on the issue. I turn in search of abuse to our constitutional kindred – the United Kingdom and Israel.
3. Selected international examples: an exercise in comparison
(a) The United Kingdom
An unwritten constitution has survived in the United Kingdom since the birth of the Magna Carta in 1215 – almost 800 years of survival on conventions and customs. Whilst it is regarded as an “incomplete system, consisting of piecemeal legislation, ancient common law doctrines, and constitutional conventions”,31 those indeterminate laws
27 Dicey, Introduction to the study of the Law of the Constitution (8th ed., 1915), p 41.
28 See below, n 29 and n 50.
29 See Fitzgerald v Muldoon  2 NZLR 615.
30 See below, n 50.
31Halsbury’s Laws of England Volume 8(2) (4th ed., Butterworths, 1996) 7.
have become so well-woven into the British constitutional tapestry that change has become almost unthinkable.
The main point of difference between the United Kingdom’s unwritten constitutional format when New Zealand inherited it, and now, is the ratification of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). This document has heralded significant constitutional change; it is supreme, and thus takes precedence over the national legislation of member states.32
Prior to ratification of the Convention, when no domestic bill of rights existed in the United Kingdom, the common law was the main watchdog of executive encroachment onto fundamental rights and wayward administrative action. With regard to administrative action, the phenomenal growth of judicial review since the early 1980’s33 is indicative in itself of the willingness of the English Courts to approach such matters and award appropriate remedies, despite not technically having any legal power to do so.34
In terms of fundamental rights, the Courts took the approach that citizens had the freedom to act however they wished, provided the legislature had not explicitly curbed that freedom.35 In the famous case of Entick v Carrington36 a trespass action was upheld against members of the executive who searched the Plaintiff’s home and seized his papers. Unless the Defendants could point to some positive law authorising their action, they had no grounds on which to infringe the Plaintiff’s property right. The legislature had given no such positive authority, and the Defendants were liable.
So in the past, the English Courts have acted as a fairly imposing check on any sign of constitutional abuse, and now that supreme European law has been adopted, the Courts have another significant weapon in their arsenal to prevent wayward executive (and now legislative) action.
32 Ibid, Para 24.
33 A W Bradley and KD Ewing Constitutional and Administrative Law (12th ed., Longman,
1998), p 460.
34 Robert L. Maddex Congressional Quarterly’s Constitutions of the World (1997), p 296.
35 Constitutional and Administrative Law, above n 33.
36 Entick v Carrington  EWHC J98; (1765) 19 St Tr 1030; Ch 6.
After declaring independence in 1948, Israel set about the process of vast constitutional reform. A constitutional assembly was formed in order to determine the structure of the new state, and in particular to determine whether a written or an unwritten constitution would be more beneficial. Despite the serious need to legitimise government, enshrine the doctrine of separation of powers and guarantee fundamental human rights in order to prevent abuse, an unwritten constitution was favoured for its flexibility; undoubtedly a paramount consideration in times of great change.37
So arose the “basic laws”, which still provide the structure of the Israeli constitution today. Like New Zealand, these constitutional laws were not given any superior status to ordinary legislation and could be amended with a simple majority from the Israeli legislative authority, the Knesset. From 1948 to 1992, there were no basic laws regarding human rights. This did not stop the Israeli Supreme Court from protecting the individual; the doctrine that individuals were free to do as they please, except so far as the Knesset restricts that freedom38 was formulated and upheld in a long line of case law.39 Perhaps more important in the Israeli context, the Courts have strong powers of judicial review, with the ability to strike down administrative actions and decisions.40
The passing of the Basic Law: Human Dignity and Liberty in 1992 heralded significant constitutional change in Israel. Section 8 of that Basic Law provides:
The rights according to this Basic Law shall not be infringed except by a statute that befits the values of the State of Israel and is directed towards a worthy purpose, and then only to an extent that does not exceed what is necessary.
37 This is not to undermine the immense difficulty in creating a single document that reconciles Arabic and Jewish laws and interests.
38 Kol Ha’am v Minister of Interior (1953) 7 P.D. 871.
39 David Kretzmer “The New Basic Laws on Human Rights: A Mini-Revolution in Israeli
Constitutional Law?” (1992) 26 Isr. L. Rev. 238, p 239.
40 Amos Shapira “The Status of Fundamental Individual Rights in the Absence of a
Written Constitution” (1974) 9 Isr. L. Rev. 498, p 501.
While the Knesset awarded no special status to Section 8, the Supreme Court latched onto it, finding it has a “super-legislative”41 status and any legislation infringing these human rights that does not satisfy section 8 will be declared invalid.42 This judgment broke the floodgates, with the same approach being applied to the remaining Basic Laws.
The Israeli Courts have thus used their interpretive powers liberally in order to give Israeli constitutional laws supremacy. Despite this special status, there is still disparity between legal theory and practice in Israel, especially in relation to human rights. Even the President of the Israeli Supreme Court recognises the “gap between law and reality” in this area.43 In addition, reports from the United Nations Human Rights Council have consistently expressed concern as to the standard of Israel’s compliance with the International Covenant on Civil and Political Rights. The most recent of these reports, presented to the General Assembly in November 2007, identifies:
Serious situations of incompatibility of [Israel’s] obligations pertaining to human rights and fundamental freedoms...such situations include the prohibition of torture or cruel, inhuman or degrading treatment; the right to life and humanitarian law principles...the right to liberty and fair trial; and the severe impact of the construction of the barrier in the West Bank and associated measures on the enjoyment of civil, cultural, economic, political and social rights and freedoms in the Occupied Palestinian Territory. Addressing the full range of those situations is imperative, not only to secure compliance by Israel with its international obligations.44
To make matters worse, fresh allegations of “psychological torture” have arisen from the media in recent times.45 The main protagonist is the Israeli Security Agency, who have applied the law as given to them by the Knesset with perhaps too heavy a hand. The concern is thus quis
41 Aharon Barak “Human Rights in Israel” (2006) 39(2) Isr. L. Rev. p 18.
42 United Mizrachi Bank v Migdal Agricultural Cooperative  Isr SC 49(4) 221.
43 Aharon Barak, above n 41.
44 Report available at http://www.ohchr.org/EN/Countries/MENARegion/
45 Martin Asser “Israel ‘using psychological torture’” last updated 1 April 2008, available
custodiet ipsos custodes?46 At present, no one – a constitution is present, but constitutionalism is absent.
4. A tentative conclusion
Theory is one thing, but as the above examples have shown, practical application is another. We have witnessed the long-standing superiority of the American and French written constitutions. We have also witnessed similar written constitutions allow anarchy on the African continent. We have witnessed the flexibility and adaptability of the unwritten constitution with great success in the United Kingdom, and a great degree of success in New Zealand. We have also witnessed the lack of efficacy that same system has had in upholding the rule of law for the people of Israel. What can we possibly conclude from this?
In response to suggestions by Mai Chen and Sir Geoffrey Palmer that a supreme constitution for New Zealand is likely in the near future, Solicitor Thomas Gibbons suggested that it is the actors, not the script, which needs change.47 Gibbons notes the man at the centre of New Zealand’s major historical constitutional crisis is Sir Robert Muldoon, a Prime Minister who “stretched the boundaries of constitutional propriety.”48 Therefore, he argued, the focus on amending the constitution in order to remedy abuse is flawed.
I take that distinction and expand on it here to argue that in general, it may not matter which constitutional format a nation takes; at the end of the day it is the will of society that enforces political and constitutional expedience. To quote the famous American jurist, Judge Learned Hand:
I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.
46 “Who will watch the watchmen?” from Plato Republic (360 BC).
47 Thomas Gibbons “Rethinking the Constitution in Crisis” (2005) NZLJ 359.
48 Ibid, p 359.
While it lies there it needs no constitution, no law, no court to save it.49
There may be significant force in this argument. If accepted, it will not make an iota of difference which constitutional format New Zealand adopts. We are a relatively placid society when compared with the violent factional conflict that still occurs in Israel. As is the United States of America when compared to the African nations that have attempted to graft the foreign concept of a written constitution onto their people. Constitutions are reflective of the society that gives birth to them. If society has a keen interest in democracy and upholding the rule of law, both written and unwritten constitutions will rise to the occasion in order to quell abuse – they will simply take different routes to achieve that goal.
B. Contextual Issues for New Zealand
From the preceding part of this essay, the question of need arises. That is to say, regardless of whether a written constitution would be beneficial to our nation in fact, should New Zealand get one? I argue three points that indicate, on balance, that this question should be answered in the negative. The first is that we do not need change, evidenced by our successful track record with informal constitutional structures, namely constitutional conventions and the New Zealand Bill of Rights Act 1990 (“Bill of Rights”). The second highlights the immense difficulty of change – the constitutional position of Maori and the Treaty of Waitangi. The third point is focussed on the dangers of change, particularly the redistribution of powers between branches of government. This third feature is divisible into two categories – the politicisation of an empowered head of state, and the monumental increase of power in the hands of the judiciary.
1. The lack of need for change: the success of informality
(a) Constitutional convention
Despite the serious shortcomings of constitutional conventions, I
would argue that in the New Zealand context they are a sufficient check on
49 Judge Learned Hand, speech, New York, 21 May 1944, cited in Gibbons, above n 47.
any abuse of power. They certainly have proved successful in the past; where New Zealand’s constitution has looked like providing a loophole for abuse, constitutional convention has risen to the occasion. The most notable event is best recounted by Sir Geoffrey Palmer:
In July 1984, immediately after the Labour Government was elected, a serious constitutional event occurred. It arose from the unwillingness of the outgoing National Prime Minister, Sir Robert Muldoon, to recommend to the Governor-General urgent financial measures concerning devaluation of the currency, which those who were forming the incoming government saw as essential. Under New Zealand law, there was real doubt whether the party that had won a general election but had not yet formally taken power could immediately form a government and take responsibility for the measures. In the event, a grave situation was narrowly averted – through convention rather than law.50
While not enforceable in the courts, conventions are flexible, and can thus adapt to new situations and ideas. Conventions “seek to restrain political adventurers. Their very existence may be denied or their relevance disputed. And when the political dust settles, no one may be the wiser.”51 Paradoxically, the fact that conventions are indeterminate means they can be the perfect shield against constitutional abuse.
(b) The Bill of Rights
The position of fundamental rights in New Zealand is sound, as the Courts have taken an expansive approach to the Bill of Rights since its enactment in 1990. The most notable example of liberal interpretation is Baigent’s Case.52 There, the Court of Appeal read in the ability to award remedies for breaches of the Bill of Rights in exceptional cases. This is notwithstanding the fact that such an ability was specifically rejected from inclusion by Parliament.53 This approach has been affirmed in subsequent cases,54 albeit rarely.55 So long as the New
50 Geoffrey Palmer and Matthew Palmer, Bridled Power: New Zealand’s constitution and government (Oxford University Press, 2004), p 7.
51 See Joseph, above n 1, p 216.
52 Simpson v A-G [Baigent’s Case]  3 NZLR 667.
53 See the Government White Paper: A Bill of Rights for New Zealand  AJHR A.6.
54 See Brown v A-G  3 NZLR 335.
55 See generally Joseph, above n 1, Para 26.3.4.
Zealand Courts continue to act as a prudent watchdog of fundamental rights, the need for an entrenched, supreme bill of rights is assuaged.
(c) Restrained actors
For the majority of New Zealand’s history, constitutional actors with significant power have not abused that power. Sir Geoffrey Palmer notes two exceptions: former Prime Minister Sir Robert Muldoon, and Governor George Grey.56
Palmer uses these examples as evidence of just how susceptible to abuse the New Zealand constitution can be. Whilst I do agree that our constitution is theoretically susceptible to abuse, I argue that such abuse is likely to be quelled before any constitutional crisis can occur, thanks to constitutional convention.
In addition, I note that these are but two incidents in 170 years of constitutional history – an enviable record for any democracy. Indeed, the actions of Governor Grey were regarded as “what must be surely one of the most extraordinary acts of disobedience by a civil servant to a Statute of the Imperial Parliament duly assented to by Queen Victoria”.57
2. The difficulty of change: the Treaty of Waitangi and the constitutional position of Maori
In the past two decades, both the courts and Government have been increasingly friendly towards redress of historical injustices to Maori. Fiscally, Treaty settlements have now reached an astonishing
$794,343,776, with a forecast of another $355,206,000 until the year
2011.58 With the Clark Government abolishing the initial $1 billion cap in July 2000 in favour of an approach which treats each claim on its merits,59 that number is set to continue its healthy rise.
56 See Geoffrey Palmer and Matthew Palmer, above n 50.
57 Alex Frame in D Carter and M Palmer Roles and Perspectives in the Law: Essays in Honour of
Sir Ivor Richardson (Victoria University Press, 2002).
58 Four Monthly Report March – June 2007, Office of Treaty Settlements, available at www.ots.govt.nz.
59 Joseph, above n 1, p 86.
On the judicial front, the courts still only enforce the Treaty in so far as it is incorporated into an Act of Parliament.60 But where there is statutory incorporation, that enforcement has been liberal: the focus has been on applying the principles and “spirit” of the document, rather than its provisions.61 It has thus gained recognition as one of New Zealand’s premier constitutional documents, a position which Maori would no doubt be very unwilling to renounce. It would be safe to assume that no constitutional change will occur without serious input from Maori – their position is far too important to be ignored. But is the Treaty important enough to warrant binding countless future generations as supreme law? Further, should the Treaty simply be adopted into the new constitution, or should it be rewritten altogether?
If the former were to occur, the courts would no doubt take the same approach they have already taken – to interpret the Treaty according to vague notions of principle and spirit, rather than the text itself. With the added feature of supremacy, the Treaty would become the single most powerful source of law in the country. This is troublesome, and in terms of determinacy would seem to defeat the entire purpose of formulating a written constitution.
Conversely, it is difficult to see how rewriting a constitutional document in order to recognise Maori would be any more practical. Such a task would involve years of widespread consultation with Maori nationwide. As Mason Durie suggests, without this exhaustive consultation; entrenchment of rights to land, culture, language, fisheries, forests, intellectual property and heritage; and 75 percent majority support in a national referendum on the matter, Maori would not be likely to agree to a proposed written constitution.62
60 Hoani Te Heuheu Tukino v Aotea District Maori Land Board  AC 308 (PC).
61 NZ Maori Council v A-G  1 NZLR 513, p 517 (PC), NZ Maori Council v A-G
 1 NZLR 641, p 663 per Cooke P (CA).
62 Mason Durie “A Framework for Considering Constitutional Change and the Position
of Maori in Aotearoa” in Building the Constitution (Colin James Ed., Brebner, 2000), p 414.
3. The dangers of change: the inevitable redistribution of powers
(a) The head of state
As both Australia and Canada evidence, it is still possible to retain a Governor-General as the head of state under a written constitution. Provided that New Zealand remained under the watchful eye of the monarchy, a wealth of power given to a newly appointed head of state (in the form of a president, no doubt) is not a major concern if the written constitution transition were desired.
However, since a written constitution would most likely arise as a result of republicanism,63 the day of a non-partisan head of state may be numbered. Opponents of republicanism cite the inevitable politicisation of the head of state as a dire concern and the major reason for avoidance of change.
But is the head of state’s role not already somewhat politicised? Currently, the Queen as sovereign appoints the Governor-General on the advice of the Prime Minister of the day, in accordance with constitutional convention. How is it possible to exclude the distinct probability of partisan political considerations on the Prime Minister’s part, when he or she is determining who the successful candidate will be? We cannot be sure. In any case, this situation does not give rise to a great degree of political partisanship, at least not the extent that a president would inherit if he or she were required to campaign for public affection.
Aside of political partisanship, the real danger lies in the powers awarded to the new head of state; if a president will retain the largely ceremonial role of the current Governor-General, there is little need for concern. If, on the other hand, a New Zealand president were given veto powers to refuse assent to bills, there would exist a much greater probability for constitutional abuse than from any democratically elected parliamentary executive.
63 See below, Part B, 4 (a).
(b) The judiciary
Unlike the role of head of state, there is no question as to the significant wealth of power the Courts would inherit from a written constitution. Armed with supreme law, the sovereignty of Parliament would be at risk from judges who are appointed, not elected. In the process, democracy can be compromised. Citizens would be stripped of their right to have the law determined by a duly elected assembly, supplanted instead by the determinations of a potentially partisan judicial body. It is not difficult to see why this is a primary concern of opponents to a written constitution.
4. Situations conducive to change
Bearing in mind these arguments against a written constitution for New Zealand, I consider three ways in which constitutional change is likely to occur. First is a move to Republicanism, which is perhaps the most obvious and likely of the options. Second, there is always potential for a constitutional crisis, giving rise to recognition of the need for a written constitution. Finally, there could be widespread public recognition that our constitution is in crisis.
The issue of whether New Zealand should detach itself from the United Kingdom often appears in close proximity to the written/unwritten constitution debate. Some argue vigorously for change;64 others want to cling desperately onto the Monarchy and our British heritage.65 Some take the more moderate stance that New Zealand will make the change when Australia does.66 In all cases, it is accepted that at some point in the future, New Zealand will put this talk of separation into practice. Former Prime Minister Jim Bolger has said:
64 See the Republican Movement of Aotearoa New Zealand website at www.republic.org.nz/.
65 See the Monarchist League of New Zealand Inc. website at www.geocities.com/cox_nz/.
66 See Palmer, above n 50.
... momentum for change will gather as we identify more with our Asia-Pacific region of the world and as our direct links to Britain decline. But the big reason will be that we want to be independent New Zealanders. This will not happen because of any lack of affection or love for our Queen in London, but because the tide of history is moving in one direction.67
At the time, Prime Minster Bolger felt the catalyst for such change would be the arrival of MMP. While this did not eventuate, the arrival of MMP was one event in a long list of incremental steps, having the effect of distancing ourselves further from the United Kingdom. The latest and perhaps most significant of these steps was the passing of the Supreme Court Act 2003, an Act which severed judicial ties with the Privy Council. Specifically, the Act noted as its purpose to “recognise that New Zealand is an independent nation with its own history and traditions...”68 The building blocks have been put into place; it is merely a matter of time before New Zealand takes the plunge into republicanism.
A written constitution arising from a republican move is not by any means inevitable. If the Government wished, it could simply sever ties with the United Kingdom by passing an amendment to the Constitution Act.69 Such an amendment would require substitution of the identification of the current head of state, the Sovereign in right of New Zealand, for another provision identifying the new head of state, although the legality of such a move is questionable.70 This way, the Governor-General would retain largely the same role he presently has – ceremonial and non-partisan.
But I submit that this avenue is not likely, and if the move to a republic was made, New Zealand would contemporaneously make the move to a written constitution in order to elucidate and codify the role and powers of the new head of state – lack of clarity is not a risk proponents of change would be too willing to make to sell their product to the New Zealand public.
67 (8 March 1994) 539 New Zealand Parliamentary Debates 121.
68 Supreme Court Act 2003, s 3(1)(a)(i).
69 Namely section 2(1), which identifies the current head of state: “The sovereign in right
of New Zealand is the head of state of New Zealand...”
70 See Sir Robin Cooke “The Suggested Revolution against the Crown” in Essays on the
Constitution (Philip A Joseph Ed., Brookers, 1995), p 28.
(c) Constitutional crisis
Would another constitutional crisis, akin to what happened in 1984, give rise to constitutional change? It certainly did then, resulting in the introduction of the Constitution Act 1986, an Act which elucidated a great deal of New Zealand’s constitutional laws. This therefore would appear to be the likeliest route to constitutional change. However, in order for a crisis to arise, we would generally require an abusive constitutional actor taking advantage of some shortcoming in the law. This has happened in practice – to the best of this writer’s knowledge – twice, in 170 years of constitutional history, in the 1840’s and the
1980’s. Thus it may be another 100 years before another such event occurs – not nearly as likely as the aforementioned republican move.
(d) Recognition of a Constitution in Crisis
This concept, formulated by Sir Geoffrey Palmer, is less indicative of emergency than is a constitutional crisis. Rather, it denotes the lack of efficacy of the rules under which government is conducted.
Prior to the arrival of a mixed member proportional electoral system (“MMP”), Palmer argued that New Zealand’s rules enabled “massive changes rapidly with inadequate public consultation,” as the constitution was too flexible and evolved too easily. The essence of our constitution in crisis lay in the “maldistribution of power between its component parts,” namely “overwhelming executive power.”71 Palmer revised his opinion in light of the arrival of MMP – a system that provides an efficacious check on the overwhelming executive power he had in mind. Nevertheless, while New Zealand’s constitution may not currently be in crisis (as was Palmer’s concern), this does not prevent the possibility of a national recognition that an unwritten constitution is simply not up to scratch. Indeed, this is precisely what occurred in Canada – an experience that is the lifeblood of proponents for change in New Zealand.
71 Geoffrey Palmer New Zealand’s constitution in crisis: reforming our political system (McIndoe,
1992), pp 9-14.
Canada’s written constitution arose with relative ease, in the absence of a particular catalysing moment, inducing the need for such change. Would the simple national awareness, that New Zealand requires a written constitution, because an unwritten constitution is theoretically susceptible to abuse, suffice as a similar catalyst? Not in all likelihood. New Zealand’s constitutional approach is characterised by “pragmatic evolution.”72 As explained by Joseph:
Social Commentators have observed that the New Zealand temperament inclined more to pragmatism and physical environment, than to doctrines or theories of statecraft... New Zealanders do not take great interest in constitutional matters.73
The New Zealand public would thus not appear to be receptive of drastic constitutional change without the practical need for change. As a result, following the lead of Canada would be highly unlikely. Since I have argued for a lack of said need earlier in this paper, I do not propose to pursue this argument and the Canadian example further.
Alternate conclusions can be drawn from the observations in this essay. The first is that there will always be constitutional actors such as Sir Robert Muldoon who seek to tailor the system for personal gain. Just like a deadbolt can only slow a willing and cunning burglar down, checks and balances in constitutions can only serve to make it slightly harder for a constitutional actor to abuse his power. It is the goal of constitutions to kerb that ability. The more deadbolts, the less likely a constitutional burglar will succeed. A written constitution would surely satisfy this goal better than an unwritten constitution. Thus, in light of the uncertainty of our informality, New Zealand should favour a precautionary approach and adopt a written constitution, so that if a wayward constitutional actor does attempt to abuse the system, the repercussions of that abuse will be minimal.
But the superior view, in my opinion, is that New Zealand does not require this extra constitutional deadbolt. It is safe to draw from the
72 Constitutional Arrangements Committee, Inquiry to Review New Zealand’s Existing
Constitutional Arrangements  AJHR I.24A, Para 26.
73 See generally Joseph, above n 1, Para 5.5.4.
examples in Part A of this paper that constitutions are highly reflective of their circumstances. Thus, whatever shape New Zealand’s constitution does take, it will inevitably be one that is unique and tailored to our needs. Indeterminacy and indistinctiveness contain sufficient constitutional flexibility to provide a hefty deadbolt in the event of constitutional burglary. So long as we remain democratic, any such attempts will be promptly dispatched. For a nation bursting with pragmatism, perhaps a written constitution is not for New Zealand – our unique unwritten variety is happily doing its job.