Some thoughts on political constitutionalism

A couple of weeks ago I was lucky enough to attend a public lecture at the University of Auckland Law Schools by Professor Keith Syrett. The topic was political constitutionalism in the United Kingdom in the wake of Brexit.

The lecture itself covered a good deal of theoretical ground on the conflict between theories of legal and political interpretations of the constitution. This stretched back to Lord Hailsham’s criticism of “elective dictatorship” and JAG Griffith’s famous defence (and indeed, articulation) of the political constitution as a concept in the 1970s. And by all accounts the debate hasn’t settled down much since.

Syrett’s main point was that after a period of increased influence for legal elements of the UK constitution, political elements are now once again coming to the fore. The main example he gave of this was the Brexit decision of the UK Supreme Court. Syrett suggested that the courts only played a limited role in the scheme of Brexit by determining who (Parliament or Government) had authority to withdraw from the European Union. In essence, all the courts did was confirm the procedure, not make a substantive decision. The political elements of the constitution did all the heavy lifting.

In the discussion after the presentation it was (quite rightly, I think) pointed out that the power to determine the correct procedure is actually quite a significant power. So it is hard to downplay the role of the courts to just a secondary or supporting role. It was also noted that if there was a more effective Opposition in the UK at the moment, then the judicial decision that Parliament must endorse any decision to withdraw from the EU might have carried more consequence. So perhaps the UK constitution has the potential to be more ‘legal’ than Syrett suggested.

Now that’s all very interesting, especially for theorists like me, but I couldn't shake the feeling that the debate over whether law or politics is, or should, be constitutionally supreme obscures something important about the way constitutions actually work. It seems to me that any genuine constitution has both legal and political elements because both politics and the law need to give effect to constitutional principles and values. The search for a fundamental or ultimate source of constitutional authority appears to me to be misplaced because a successful constitutional actually involves law and politics working together.

My go-to example of this in the New Zealand context is the Treaty of Waitangi. Whenever there are serious Treaty issues to be tested, both the judicial and political branches of government tend to get involved. This most famously occurred in the Lands case in 1987, but I think the more an even better example is the 2013 Mixed Ownership Model. In both cases the courts effectively advised on the legality of a government process, and commentators often hold that up as an example of a dominant legal culture. But it is equally important, I think, to recognise that the government accepted that advice and chose to work with it which, under the doctrine of Parliamentary sovereignty, is never guaranteed. The government could have sought legislative changes which gave the courts a more limited role, but elected not to. And I think we have a stronger commitment to the Treaty and its principles within our constitutional architecture because both legal and political elements of the constitution were activated.

The UK might be different, but I suspect not really all that much. In both the UK and New Zealand what debates about legal and political constitutionalism tend to do is obscure how the constitution actually operates – bringing different sources of authority together into a more or less coherent whole. If we think about issues like the Treaty or Brexit in constitutional rather than legal or political terms then I think the implications of those issues often become clearer more quickly. But in the meantime debate about political constitutionalism is still clearly topical enough for visiting academics like Syrett to draw a crowd, and that in itself is a reassuring sign for those of us who think about these sorts of issues.

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