A TRANSFORMATIVE CONSTITUTION:

From Conventions of the Constitution to Constitutional Convention?

James MitchellJames MitchellESRC FellowESRC FellowAcademy of GovernmentAcademy of GovernmentUniversity of EdinburghUniversity of Edinburgh

What is a transformative constitution?

‘a long-term project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction’ (Klare 1998: 150)

Karl Klare, ‘Legal Culture and Transformative Constitutionalism’ 14 South African Journal of Human Rights

Functions of constitutions

☐ Ivo Duchacek, Power Maps: the comparative

politics of constitutions, 1973

☐ Statement of authority

☐ Limited government

☐ Loose framework of govt vs detailed

codification

☐ (Revolutionary) manifesto

Observations on the UK Constitution ‘The constitution of the United Kingdom lives on,

changing from day to day for the constitution is no more and no less than what happens. Everything that happens is constitutional. And if nothing happens that would be constitutional also.’ (Griffith 1979: 19)

The customary constitution ‘lays great store by a capacity to leave principles inexplicit, relying instead on what people feel from past experience to be appropriate in the circumstances.’ (Johnson 2004: 19)

‘British tradition of pragmatic adaptation’ (Ibid.: 284)

J.A.G. Griffith (1979), ‘The Political Constitution’, Modern Law Review, vol.42Nevil Johnson (2004), Reshaping the British Constitution

Our whole system of responsible government, our whole structure of political accountability, seems to be built on foundations that involve nothing more robust than the unwritten sense of these shadowy and ambiguous understandings.’ (Waldron 1990: 61)Jeremy Waldron, The Law, 1990.

EELS…

Constitutional Convenions: ‘somewhat vague and slippery - resembling the procreation of eels’ (Marshall 1984: 54-55) Constitutional Conventions

What is ‘constitutional’?1. Bank of England independence2. Referendums on Scottish and Welsh devolution3. Scottish Parliament4. Welsh Assembly5. Referendum on Belfast Agreement6. Northern Ireland Assembly7. Referendum on London mayor and strategic authority8. Introduction of ‘proportional representation’ for devolved bodies9. Introduction of ‘proportional representation’ for European Parliament10. Local authorities reforms11. European Convention on Human Rights enacted12. Removal of all but 92 hereditary peers from the House of Lords13. Freedom of information14. Regulation of political parties and party finance15. Abolition of Lord Chancellor, removal of Law Lords & Supreme Court.

(Bogdanor 2004: 242-243)

Vernon Bogdanor (2004), ‘Our New Constitution’, Law Quarterly Review, vol.120.

Basic tenets of UK constitution

Sovereignty of the Crown in Parliament The Rule of Law, encompassing the

rights of the individual Union State Representative Government Membership of the Commonwealth, the

European Union, and other international organisations

House of Lords Select Committee on the Constitution, Reviewing the Constitution: Terms of Reference and Methods

of Working, 1st Report, HL Paper 11, Session 2001-02, paras.3-10

Three senses of transformative

Who creates the constitution?

Functions?

Contents?

Opposition

French notion of a Constitution:‘is a new term they have adopted; and which they use as if a constitution was a pudding to be made by a recipe’http://oll.libertyfund.org/titles/292Arthur Young 1792

Who makes constitution?

Function?

‘a long-term project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction’ (Klare 1998: 150)

Karl Klare, ‘Legal Culture and Transformative Constitutionalism’ 14 South African Journal of Human Rights

Contents?

1st, 2nd, 3rd generation rights? Declaratory or justiciable ‘rights’? Amendment procedures? Relationship to international treaty

obligations (focus on human rights but also fiscal constraints)

‘Fourth generation’: ‘making rights real’?

Constitutions‘Constitutions, as we are defining them, are never – to repeat, never – written down. They might possibly in principle be written down, but in practice they never are. There are, of course, written documents called Constitutions – with a capital “C” – but they are never, ever coextensive with all of a country’s most important rules regulating the relations between the different parts of the government and those between the government and the people.’ (King 2001: 3)

Anthony King (2001), Does the United Kingdom still have a constitution?

An historic event?‘It is now up to the people of Scotland to make that historic decision. The very future of Scotland depends on their verdict. It is that important. This agreement delivers the people’s referendum.’Prime Minister Cameron, October 2012

‘I'm honoured to announce that, on Thursday the 18th of September 2014, we will hold Scotland's referendum - a historic day when the people will decide Scotland's future.’First Minister Salmond, March 2013