No suspension of the constitution

Phase 2 final wording:

There shall be no circumstances in which the Constitution or any part of it shall be permitted to be suspended or revoked by any party, except in accordance with the procedure for amending the Constitution. 

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A pretty straightforward one really, touched upon elsewhere in a comment.

There shall be no circumstances in which the constitution or any part of it shall be permitted to be suspended or revoked by any party (government, judiciary or emergency services). The only process for amending the constitution, whether temporarily or permanently, shall be by a majority vote of the citizens of the UK.

Although simple, it's also quite important. Where a constitution can be suspended or revoked, there is always a temptation for governments to use or threaten use of that provision. Look, for instance, at the Regulation of Investigatory Powers Act 2000 - in a constitution where freedom of the press is explicitly protected rather than implicitly recognised by convention, government would be unable to use such powers to access jounralistic sources without a mandate which would only be obtainable via referendum.

edited on Apr 18, 2015 by Daniel Gaunt

Daniel Gaunt Apr 5, 2015

Suggested wording for discussion:

There shall be no circumstances in which the Constitution or any part of it shall be permitted to be suspended or revoked by any party, except in accordance with the procedure for amending the Constitution. 

Rob G Apr 6, 2015

I think there's a big difference between suspension and amendment - and, more importantly, between the circumstances in which they'd be being contemplated.

We currently have arrangements for government to use emergency powers - most of the provisions are currently contained in the Civil Contingencies Act 2004 ("http://www.legislation.gov.uk/ukpga/2004/36/part/2"). Of course, it will be thought appropriate to introduce emergency powers far more often than to suspend parts of the constitution, so you wouldn't want to just add suspension of the constitution to the powers in the Act; however, it would be a good starting point to consider what might be necessary.

Ministers can make emergency regulations immediately, with Parliament only reviewing them afterwards. Should that be copied here? Or should a broader group be required to authorise suspension (bearing in mind it might be difficult to gather the relevant people together)?  I think in order to declare the Monarch unfit under the Regency Acts, it's a defined group of people including the Lord Chancellor and Lord Chief Justice - maybe this should require the LCJ and the President or Deputy President of the Supreme Court? Or does that implicate the judiciary in a way which might make a subsequent review of the decision difficult to carry out? Should the devolved legislatures/administrations be involved in some way?

I said in the previous stage that it will depend on what's in the constitution. If we take a "minimalist" approach to the constitution, there may be no need to consider suspending any of it. If it's more detailed, however, that may become a real possibility. For instance, a power to prevent people going near a particular building or establishment - a nuclear power station, say - might involve an infringement of the freedom of assembly. That's fine if the constitution provides that that particular freedom can be restricted in certain cases, as the European Convention does, but would not be if the constitution were less "accommodating"...

Afraid that's not a nice, neat answer - but maybe it's a useful framework for further discussion.

Tom Austin Apr 11, 2015

As section 23;5 of the act under Rob's link above states...

"Emergency regulations may not amend—

(a)this Part of this Act, or

(b)the Human Rights Act 1998 "

Does this not make the effects of the "Civil Contingencies Act 2004" far less than of an issue than the suspension of all or part of a Constitution?

Rob G Apr 11, 2015

Yes - I hope I didn't convey the idea that I saw them as fully equivalent? I'd imagine introducing emergency powers would be a "first step" in the event of a crisis (actually, a 10th or 20th step, I hope), whereas suspending parts of the constitution would be contemplated far more rarely.

I just thought it might help see the implications of an attempt to suspend the constitution or parts of it, and the safeguards that are already considered for the "weaker" emergency powers...

Tom Austin Apr 12, 2015

I make no complaint Rob, I'd hoped to merely underline the point.

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Daniel Gaunt Apr 13, 2015

Have added in a draft final wording for this.

Rob G Apr 13, 2015

I find it hard to believe that it would be possible to prepare and hold a referendum in circumstances in which it is necessary to suspend (part of) the constitution.

Tom Austin Apr 14, 2015

Alas.  ...and all too easy to suspend where there is an agreed, and simple, mechanism in place so to do.

As there are exceptions attached to (almost?) every clause, the Draconian option is, I think,  unnecessary.

Daniel Gaunt Apr 14, 2015

The principle of this clause is that there are no situations in which it would be either desirable or necessary to suspend the Constitution or any part of it. Building in the ability to do so misses the whole point! 

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Andrew Cullyer Apr 14, 2015

Perhaps the the difficulty could be resolved be having an emergency amendment procedure which times out after so many days/weeks/months this would allow you to suspend part of the constitution by amendment for a limited time? Obviously this could not be used continuously or in a way to breach the rule of law.  

So say its a 6 months amendment order which can be achieved by simple vote of Parliament but after 6 months it has to got through the full amendment procedure if it fails it cannot be retabled in the current parliament,  an  exception perhaps for times of war? and then it would be when the war is concluded, rather than 6 months, and the war itself must process clear, present danger of the constitution being invalidated by opposition forces (i.e. invasion).

  

Daniel Gaunt Apr 14, 2015

The proposal voted on was 'no suspension', not 'no suspension except...'

 

Malcolm Ramsay Apr 14, 2015

I think if the need for suspension is truly there, no clause in the constitution will prevent it. I'd rather see something which would make it easy for a government which has suspended it for good reason to lift the suspension. Something like:

  • Suspension of the constitution shall be punishable as treason unless explicitly condoned, in advance or retrospectively, by the public.

Tom Austin Apr 14, 2015

Not that we have a working 'Treason' mechanism. (?)

If we were to allow for a "Blair Clause", I veer toward an immediate 'block & blade' solution, however there is a 'reality' accorded to the principle that, "Hindsight has 20:20 vision." Which makes 'in advance' far more acceptable that 'in retrospect'.

Daniel Gaunt Apr 18, 2015

For the purposes of the final version, I'm satisfied that the draft final version stay as is. This is wholly consistent with the original proposal which was voted on; any provision for the constitution to be suspended etc goes fundamentally against the point of the original proposal (to prevent those who would suspend from doing so.

 

 

Alastair Bruton Apr 18, 2015

The whole point of this stage is to refine the original idea. Robg8, Malcolm and others have made some good points about emergency powers etc, and these need to be taken into account. Why not modify your draft and let anyone who doesn't approve cancel their vote?

Daniel Gaunt Apr 18, 2015

Because that would be changing the whole premise of the original idea. I don't dispute that they have the potential to be good points, but it's exactly those arguments which this proposal is there to defend against, and I made it very clear in the original proposal.

I note Rob's points particularly, but the rights he refers to are mostly not absolute and therefore suspension is less relevant as the law is perfectly adequate to address them. 

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