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Se-shauna Wheatle and Vanessa MacDonnell: Unwritten Constitutional Norms and Principles – Blog Series Introduction

Posted on Friday, 31 May

Unwritten constitutionalism is often associated with Westminster systems, but it is arguably a feature of all constitutional democracies, including jurisdictions with highly codified constitutions. The ‘unwritten’ facets of the constitution encompass a range of constitutional norms and principles that do not derive their validity from texts authorized through a formal institutional process. The unwritten rules of the constitution can also be characterized in different ways, producing varied impacts on the understanding of even highly codified constitutional orders. Thus, unwritten constitutional norms and principles can be seen as filling gaps between the text of the constitution, providing linkages that connect constitutional rules and institutions, and/or as the foundation underlying and supporting the text.

The inevitability of unwritten constitutionalism does not, however, remove contestation and controversy over its substance, its interaction with other aspects of the constitution, and its relationship to institutional power. Chief among these issues is the ‘discovery’ or articulation of unwritten constitutional norms and principles. The search for the source of a norm or principle that is classified as unwritten yields complex results. For instance, an unwritten rule can either be free-standing, or it can be understood as an interpretation of a written rule that goes beyond the strict textual meaning. The task of articulating what ideals, standards and customs merit designation as unwritten constitutional norms and principles also raises questions. Further, once a principle or norm has been identified, what is its scope and normative status?

Moreover, judicial engagement with unwritten constitutional norms and principles impacts, and is impacted by, debates over the institutional and substantive components of the constitution. A court’s institutional context can impact its willingness to recognize, define and enforce unwritten constitutional norms and principles. In some circumstances, resort to unwritten principles can heighten a court’s institutional vulnerability. Meanwhile, it is increasingly recognized that unwritten constitutional principles are not the exclusive province of the courts, and that their content and influence are shaped by political actors and the broader citizenry.

The Unwritten Constitutional Norms and Principles (UNCP) project, led by Se-shauna Wheatle, Vanessa MacDonnell and Florian Meinel, examines unwritten constitutional norms and principles across three jurisdictions whose institutional, normative, and political features provide a rich sample for analytical comparison- the UK, Canada and Germany. The project aims to identify the factors that influence the recognition, definition and enforcement of unwritten constitutional rules across the three jurisdictions. In so doing, it examines the interplay between unwritten constitutionalism and the variables of codification, judicial power and political structures. The research undertaken will also advance knowledge on the relationship between unwritten constitutional rules enforced by courts and political norms. Unwritten constitutional norms and principles also play a role in addressing a fundamental challenge for constitutionalism in times of democratic and constitutional backsliding; that is, what role should courts play in backstopping democracy and constitutionalism in the face of the erosion of democratic constitutional values by political actors? Ultimately, therefore, the project will interrogate the relationship between unwritten constitutional rules and the scope of authority – and potential decline in authority – of apex courts.

At the first workshop of the UCNPs project, held at Durham Law School in November 2023, the research team discussed a series of foundational questions that will frame the project going forward, including the nature of writtenness and unwrittenness; the concepts of norms, principles, and rules; the relationship between legal and political unwritten rules and principles; and the significance of constitutional silence. The blog posts in this series are the product of those discussions. Taken together, they seek to spark a conversation about unwritten constitutional norms and principles from a comparative and interdisciplinary perspective.

This series of blog posts focuses on the two Westminster systems -the UK and Canada. These two jurisdictions occupy distinct positions on the spectrum of writtenness and judicial review, and therefore provide fertile territory for exploring the influence of ‘writtenness’ on the discovery, scope and normativity of unwritten constitutional principles. Examining these two jurisdictions together also permits an examination of the influence of unwritten principles on the breadth of judicial review and authority exercised by courts.

The pieces within this series address the operationalization of unwritten constitutional principles in the constitution, the relationship between unwritten constitutional principles and other constitutional norms, and the interaction between the unwritten constitution and the authority of state institutions. Crucially, several posts encourage us to look beyond the judicial in examining the scope, content and functions of unwritten constitutional principles and norms.

The series opens with a contribution from Hayley Hooper, who seeks to uncover the historical foundations of the principle of legality in UK law. This principle has grown in importance and also in controversy due to the current and recent governments’ increased use of ouster clauses in primary legislation. Hooper shows that the history of the principle is surprisingly complex and cannot be traced to a clear line of jurisprudential authority. She also explains that the principle has been defended on a range of grounds, including that courts will not lightly conclude that the legislature intended to depart from the rule of law, and that Parliament must be prepared to accept the political consequences of infringing constitutional fundamentals.

In her blog post, Joanne Murray considers the role that administrative bodies and the individuals who appear before them play in fleshing out the content of unwritten constitutional norms and principles. She notes that even multi-institutional accounts of unwritten constitutionalism tend to focus on courts and legislatures, without attending sufficiently to how the administrative state generates new understandings of constitutional principles. As her case studies demonstrate, front-line decision-makers and citizens making claims before administrative bodies bring a unique perspective to the articulation of unwritten principles. For this reason, it is important that their contributions be factored into wider theoretical discussions about unwritten constitutionalism.

Next, Seána Glennon examines how unwritten constitutional norms and principles can be instantiated in novel institutional forms within the constitutional state. Situating the deliberative minipublic as a powerful mechanism for the realization of constitutional norms and principles such as democracy and its cognate value of citizen participation, she makes the case for the wider use of deliberative minipublics to address a range of policy challenges in the constitutional realm and beyond. She concludes that although the Canadian experience with citizens’ assemblies has to date been underwhelming, there remains potential for this mechanism to enhance civic engagement in debates around climate change, AI, and other issues.

Daniel Skeffington and Philippe Lagassé’s blog post examines the role of the royal prerogative in discussions of unwritten constitutionalism in the UK. In their view, studies of the prerogative that centre on judicial decisions are bound to come up short, both because there have been so few cases dealing with the prerogative but also because the content and limits on the prerogative can only be fully grasped by examining how it operates in day-to-day political decision-making. The absence of strong judicially enforceable legal limits on the prerogative is therefore not to be confused with the absence of any limits on its exercise. To the contrary, real restraints do exist, and they are to be found primarily in the political constitution.

Nicholas Kilford’s contribution examines the extent to which unwritten norms and principles shape the relationship between Westminster and the devolved parliaments. He notes that in recent cases, courts have tended to hew closely to the text of the devolution statutes, without necessarily referring to the unwritten constitutional principles that underpin them. He argues that the courts’ reluctance to consider unwritten principles has occasionally produced a myopic view of the issues. Kilford argues that enlisting the support of unwritten principles would help strengthen the courts’ devolution jurisprudence without departing dramatically from past practice.

Finally, in their jointly authored piece, Se-shauna Wheatle and Roger Masterman explain that unwritten constitutional norms and principles have important legal and political dimensions. Some unwritten principles, such as the rule of law, find their primary home in the law and tend to be viewed as the preserve of the judiciary. Others, such as constitutional conventions, are typically regarded as political in nature. However, the story is not so straightforward. Wheatle and Masterman point to the political development of the rule of law principle and to judicial recognition of constitutional conventions as examples of the unwritten constitution’s fluidity. They conclude their post by proposing a typology for thinking more clearly about unwritten norms and principles across both their legal and political axes.

The posts in this series therefore engage with emerging issues arising from the operation of unwritten norms and principles in the Canadian and UK constitutions. The relationships between different types of unwritten rules and between the unwritten and the written constitution are unsettled and will likely remain a feature of debates surrounding democratic and constitutional reform in both countries. The authors also demonstrate that while debates about judicial deployment of unwritten rules continue apace, those questions are now accompanied by increased attention to the ways in which political organs and citizens can, and ought to, shape the unwritten constitution. It is hoped that this blog series will lay the groundwork for further research within and outside this project on the richness and complexity of the unwritten constitution.

Se-shauna Wheatle is an Associate Professor at Durham Law School

Vanessa MacDonnell is an Associate Professor at the University of Ottawa and Co-Director of the uOttawa Public Law Centre

The Unwritten Constitutional Norms and Principles project was funded in Round 7 of the Open Research Area Competition (supplied by the Economic and Social Research Council (UK), the Social Sciences and Humanities Research Council (Canada) and the Deutsche Forschungsgemeinschaft (Germany). For more information on the project, please visit our website: https://www.durham.ac.uk/departments/academic/law/research/ucnp/.

(Suggested citation: Wheatle, S. and MacDonnell, V., ‘Unwritten Constitutional Norms and Principles- Blog Series Introduction’, U.K. Const. L. Blog (20th May 2024) (available at https://ukconstitutionallaw.org/)

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