11. Criteria for a Constitution part 3: Accountability
A constitution must conform to certain declared abstract principles but, importantly, it must work in action. The final five criteria of the definition are to do with the practical measures needed for running a nation.
1. Relationships between institutions: the separation of powers
A constitution establishes the institutions of government and lays down the rules that govern interactions between them. In democracy, the usual arrangement is a separation of powers to ensure that power does not become concentrated in one body or individual.
2. Horizontal Accountability (“checks and balances”)
A constitution sets the rules and also sanctions for breaking them. It makes every political action accountable. If a political action is not accountable, it is unconstitutional.
There are two kinds of accountability: horizontal (between institutions) and vertical (to the people). To ensure the former, a democratic constitution separates institutions and obliges them police each other. This is intended to avert the danger of members of an elite taking over the state and colluding with each other.
Stephen Sedley imagines horizontal accountability in a democracy to be like the game of knife (or scissors), paper and stone. The legislature, the executive and the judiciary under a well performing constitution is each armed with a weapon that can defeat one of the other two but in Britain one of these, the least democratic, is supreme: “It’s the crown that is in charge, functioning through three “separate but interlocking institutions, Parliament, the courts and the executive.”
There is no formal, clear-cut separation of powers in the UK. In its place there is a fusion of powers. The prime minister, for instance, sits in the legislature but controls the executive in the name of the monarch. He enjoys wide powers of patronage.
3. Vertical accountability
A democratic state is accountable downwards, to the people, through the mechanism of elections. No part of it can be accountable upwards to a “higher holder of sovereignty” such as the monarchy yet this is what we see in Britain. Elections are only
Theoretically a general election is the people’s means of holding those in power to account but it is infrequent, indirect (how does a voter hold a minister to the ministerial code?) and often ineffective (what good does it do to turf a government out of office long after it has behaved badly?).
Several components of the system are entirely unaccountable: particularly, the monarchy, the House of Lords and the Privy Council accountable.
4. Mediation of conflict. The judiciary and independent arbitration
In good times, when everything works smoothly, no one needs a constitution. It is only when institutions do not do what they should or political actors behave with indecency that the rules are invoked.
“The purpose of any constitution, codified or not, is to recognise tensions between the elements of a state and provide for how they are resolved. A constitution is there to regulate the consequences of such conflicts, as well as between people and the state.”
We can judge the functionality – and even existence – of a constitution by how well it resolves conflict. Ideally, it acts as an auto-arbiter, pre-programmed with the answer to the dispute. Otherwise it provides mechanisms for the mediation of conflict, including disputes between the people and their rulers.
Mediation requires two elements, a “custodian” of the constitution (an authority that “keeps” the definitive copy of the constitution which is recognized by all parties) and a method or arbitration that everyone will agree with.
Who is this authority, “the keeper” of the constitution? Who can adjudicate its workings; and initiate or impede change? Britain has no equivalent of France’s Constitutional Council (Conseil Constitutionnel) expressly created by the constitution of the Fifth Republic.
The ostensible answer is perhaps the Supreme Court, a young institution that is still finding its feet and seems to re-perceive its role with each change of leadership. It is far from making itself the unchallenged arbitrator of the constitution, like its namesake in the US.
If the House of Commons is supreme, then its select committee,
Other answers could be the Public Administration and Constitutional Affairs Committee (PACAC) – but its remit only relates to Parliament– or the Cabinet Office, which publishes its Manual summarising what is known about the constitution. This, of course, has not received democratic assent and is simply a compilation by insiders who have to operate the system.
The “efficient” answer to the question is probably the prime minister of the day who can, given an overall majority, make any constitutional changes they like either through or outside the House of Commons.
5. A Mechanism of reform
A constitution is, as we saw earlier, intended to be future proof. To give it durability, it must be a difficult to change, otherwise political actors would be forever adjusting it to suit their own pragmatic needs. This said, a constitution must have a mechanism of adaptation to cope with changes in society, technology etc. A procedure is laid out for this which must be feasible but not too easy. This may require the approval of all the bodies of government and a super majority of the national assembly. Normally, a constitution is not changed per se – its fundamental tenets remain the same; it is amended. In the UK, with no clear constitution, there is no set route to constitutional change. What is required to abolish or replace the House of Lords? What can be done and by whom to make the electoral system proportional? Can the Whips in Parliament be abolished? What about the monarchy: by what means can its notional powers be curtailed? These and other questions remain ever in the air. In effect, they come down to whatever politicians at any given moment can get away with, strongly indicating that there is no constitution, only the intimation of one.
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The Cavalier Constitution 