The UK constitution is dysfunctional and needs to be reformed by way of a written constitution – a change that would also help prevent the sort of criticism of judges seen in the wake of the Gina Miller case.
That’s the conclusion of new research by an expert in constitutional law at the University. Sebastian Payne of Kent Law School suggests that the shortcomings of the present system – in which the constitution, based on common law, makes the judges the body that defines the constitution – were highlighted by the Miller case.
He argues that the case touched on ‘key elements of power’ in the state: the role and power of the executive, the legislature and the judges. He says that the Supreme Court was under pressure and allowed itself to be ‘intimidated into a rushed timetable that did not allow itself time to think through the issues with care’.
Further, the Supreme Court was also ‘clearly on the defensive’ after media attacks on the divisional court when it delivered its judgements in the Miller case. This resulted in the Supreme Court majority verdict that ‘looks as it was stitched together by a committee with rushed research by judicial assistants’.
This common law approach was therefore shown to be unsatisfactory, with the court under pressure and lacking the confidence to assert its role as the top constitutional court of the country, argues Sebastian Payne.
‘I would suggest that the biggest improvement to be made would be for the UK to have a written constitution that identifies what the key concepts and principles of the constitution are. This would define the powers of a supreme court and enshrine its status and independence and arguably empower it to act with confidence and set its own timetable in the face of harassment by politicians and the press,’ said Sebastian Payne.
The Supreme Court and the Miller case: More reasons why the UK needs a written constitution (S. Payne) is published in the journal The Round Table: The Commonwealth Journal of International Affairs.