#19889 - Constitutional Civility - Constitutional Law

Is Constitutional Civility Breaking Down?

Constitutional civility is a reliance on political self-control; mutual respect between the branches is not legally binding. Conventions are a way of doing this – there are no legal sanctions for ignoring them but thy are generally adhered to by politicians. Perhaps Boris Johnson ignoring convention with regard to Patel in 2020 and determining she had not broken the ministerial code is why the High Court gave the FDA leave to argue the Ministerial Code, and Boris’s decisions relating to it, to be subject to the rule of law, which would effectively impose legal limits on it.

The constitution has previously worked largely because of unwritten, and sometimes unarticulated, understandings about how constitutional actors ought to behave, and mainly have behaved.

Elliot defines constitutional civility as having three component parts:

1. Reliance on political self-control; doing the ‘right’ thing constitutionally

2. Adherence to conventions, despite the legal obligation to do so

3. Legislative self-restraint, despite Parliamentary sovereignty

Lapses in constitutional civility?

1. Internal Market Bill

Over-writing the Brexit deal, and a violation of international law. When the withdrawal act (EU (Withdrawal Agreement) Act 2020) was turned into domestic law, section 7A meant the Act could not be impliedly appealed. Gave UK ministers domestically powers to ignore international obligations. Direct affront to RL. Gvt argued it was okay to engage in specific and limited breaches of international law.

2. Willingness to dispense with Sewel convention

3. Gvt response to IRAL

Gvt proposed to change JR significantly and undermine RL. Gvt doesn’t accept need for careful judicial scrutiny as part of the price of being a constitutional democracy.

4. Attempt to unlawfully prorogue Parliament

5. Rejection of the conclusion of Independent Advisor on Ministerial Standards regarding breach of Ministerial Code

6. Further review of HRA. According to the Lord Chancellor, this is intended to result in an update to the Act to remedy the ‘balance between the rights of individuals and effective government’.

This review has two terms of reference. (1) the relationship between domestic courts and ECtHR. (2) impact on HRA on the relationship between the three branches. On (2), the gvt’s concerned with s.3 HRA powers – has it been used to interpret...