To be published as HC 1178-ii




Political and Constitutional Reform Committee

Mapping the Path to Codifying - or not Codifying - the UK's Constitution

Thursday 14 July 2011


Professor Sir Jeffrey Jowell QC and PROFESSOR DAWN OLIVER

Evidence heard in Public Questions 61 - 112


1. This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.

2. The transcript is an approved formal record of these proceedings. It will be printed in due course.

Oral Evidence

Taken before the Political and Constitutional Reform Committee

on Thursday 14 July 2011

Members present:

Mr Graham Allen, in the Chair

Mr Christopher Chope

Andrew Griffiths


Examination of Witness

Witness: Professor Guðmundur Hálfdánarson, Professor of History, University of Iceland, gave evidence.

[This evidence was taken by video conference]

Q61 Chair: Professor, it is very kind that you have spared your time to speak to us. If we may, we would like to get straight on to the questioning. It would be really helpful if you could briefly explain the process of constitutional change that is being undertaken in Iceland .

Professor Guðmundur Hálfdánarson: There is a Constitutional Council working at the moment, although it is coming to an end. Its task is to rewrite the Icelandic constitution from the beginning to the end, so this is a wholesale renewal of the constitution. You can look at what is behind that. First, the constitution dates from 1874. Many changes have happened since then, but there has been the desire to change it thoroughly for a long time without any success. That long-term desire to change the constitution and, definitely, the crash of 2008 were the general background. There was a great mistrust in Government, which led to the idea that the constitution had to be changed. There was a desire to increase accountability and to prevent this from happening again-that is the background.

The Constitutional Council was originally elected in open elections in November last year. The Supreme Court invalidated the election at the beginning of this year because of what it regarded as irregularity within the election process. It was very complicated and participation was very low so, in the end, the Constitutional Assembly was changed into a Constitutional Council. That is the process that is going on at the moment. It is coming to an end, and it will present a constitutional Bill to the Parliament, which is the only way of changing the constitution-there is only one constitutional way of doing it. It has to happen through the parliamentary process, so Parliament gets the Bill, votes on the Bill and changes that as it wants to. If it passes through Parliament, the Parliament is dissolved and elections then are held. When a new Parliament is assembled, and it passes the constitutional bill again, it comes to into force. That is the general process that takes place.

I am not sure at the moment to what extent the general public is going to have a say on this constitutional Bill that comes from the Constitutional Council. That is unclear because Parliament really has the last say on a constitutional Bill that comes to the House. That is the kind of general background, I would say.

Chair: Thank you, Professor. Christopher, do you have some questions?

Q62 Mr Chope: Are you saying that there were irregularities that resulted in the Supreme Court ruling against the original proposals? What is the basis for those irregularities?

Professor Guðmundur Hálfdánarson: It was only technical. There was no accusation of any kind of impropriety. It was a very complicated process, and very unlike the general elections to Parliament because the whole country was one district. There were 522 candidates, which meant that the process was different from the general one and there was a theoretical possibility of tracing ballots to voters. As I say, there is no accusation that that happened, but it was complicated, so the Supreme Court thought that the technical execution of the election was not according to the general law for elections.

Q63 Mr Chope: How are the people who are on the Constitutional Council chosen now?

Professor Guðmundur Hálfdánarson: It happened on the basis of the results of the November elections. There was about a 35% turnout, which is low by electoral standards because usually it is around 80% in elections. But, as I say, the Supreme Court did not really accuse that the elections were wrong; it was simply the technical errors in how they were contested.

Q64 Mr Chope: To what extent is the possibility of Iceland joining the European Union an issue in this constitutional change debate?

Professor Guðmundur Hálfdánarson: This is one of the reasons why the constitution had to be changed because, according to the constitution as it stands, Iceland cannot join the European Union. There is a provision in the constitution that the Government or Parliament cannot hand over any part of Iceland’s sovereignty to foreign institutions or bodies. In the new constitution, there will be clause saying that Parliament, given certain restrictions, can do that. That is opening the possibility of Parliament deciding after a referendum to join the European Union.

Q65 Mr Chope: Has that piece of background been important in the public debate about whether to change the constitution?

Professor Guðmundur Hálfdánarson: Yes. As I say, I would not say that was the main reason or the main concern of the public. The main concern of the public was more focused on the internal workings of government, which people felt were not going properly in the lead-up to the crash. There is a clear desire for more accountability and more participation in the democratic process. This was clearly one of the reasons why Parliament wanted this to happen. I would not say that this is a major part of the public debate; it is more seen as a technical requirement for the process of joining the European Union to go on. That is a totally different process in many ways, and we have no idea how these things will develop.

Q66 Mr Chope: What about the possibility of Iceland joining the euro? Is that involved in the constitutional debate?

Professor Guðmundur Hálfdánarson: Not at all, because that is more dependent on Iceland joining the European Union, because there is a clear message from the European Union that Iceland will not join the euro unless it joins the European Union-that is the condition for it. Even if we join the European Union, it is clear that we need to fulfil different criteria that we do not fulfil at the moment. There is nothing about the currency in the constitution itself, and there never has been, so that is not part of the constitutional debate. That is clearly a matter for general legislation in Parliament.

Q67 Andrew Griffiths: Professor, we heard in a previous evidence session about the case for the constitutional change in Ireland. It is interesting that both countries have gone through a fairly turbulent economic period. To what extent do you feel that the financial crisis has driven the desire for constitutional change?

Professor Guðmundur Hálfdánarson: Basically, as I said, I think the reason why there was a long-term desire to amend and rewrite the constitution was because of the acceptance of a republic on the part of the Danish monarchy after 1944. Then the desire was to rewrite the constitution totally. It did not happen because there was no agreement on how to do it, so there is a kind of feeling that it is the crash that is driving this constitutional change ahead. It is the concerns from the crash that are mostly on people’s minds when they are discussing this kind of constitutional change. Clearly, the Constitutional Council is very much concerned about, as I say, accountability, or a clearer distinction between the Executive and the Legislative branches, when, in a sense, it is very unclear in a formal constitution. In many ways, the Executive branch was very much the driving force in Parliament because we have a parliamentary system. The crash is clearly the main concern and it may be the kind of driving force behind this constitutional debate.

Q68 Andrew Griffiths: Thank you for that. When we heard about the Ireland situation, the person who gave evidence said that although the financial crash was the driver, he did not feel that the changes to the constitution would have made any difference whatsoever to Ireland’s ability to withstand the economic crisis. How do you feel about the Iceland situation?

Professor Guðmundur Hálfdánarson: I tend to agree. I don’t think that really the main reason for the crash was the constitution, because there was no way that the general public in Iceland were any more awake to what was going to happen before the crash than Parliament. If anything, it was less so, so I do not think that much would have changed. I think that this has much more to do with the way in which Parliament itself is reformed and there is a lot of process going on there, which has, I think, more to do with the significant desire of people to be empowered, in a sense. We have no idea of how that impacts in the real world and, therefore, if the constitution can be changed. Yes, it is the driving force, but I guess that it would not have changed much.

Q69 Andrew Griffiths: I am not sure whether you have spotted this, Professor, but in the UK, the issue of the newspapers is quite a hot topic at the moment. Can you tell us the involvement of the Icelandic press in relation to the proposed constitutional changes? What influence have they had in driving the debate? Were the views polarised, or did the press have a uniform view on these things?

Professor Guðmundur Hálfdánarson: I think that the Icelandic press is generally fairly weak, in a sense, because Iceland is a small country and we have only two major newspapers, one of which is basically owned by some of the corporations that led to the crash, so the debate in the newspapers was fairly weak. I think it is much more the blogosphere and the debate on the internet that has been driving it. I am also aware there were great debates and projects going on, particularly in January 2009. As I say, Iceland was on the brink of revolution in many ways because there was total mistrust in government, in Parliament and the courts, and that kind of set the debate in motion. Things have calmed down-they have been calming down considerably since then-but I can say that in many ways this kind of debate is a remnant of that kind of rather unsure, uncertain situation that we had in January 2009. There is a clear concern in the constitutional debate about the power of the media, how best to ensure the openness and accountability of the media, and how to try to separate business lives, especially, and the media. Iceland is a small country. Rupert Murdoch is a mogul and controls a lot of the British press. Can you imagine how easy it is to control the Icelandic press?

Q70 Andrew Griffiths: There seems to have been quite a good amount of collaboration between the public and the political institutions. Can you tell us about the discussions that went on beforehand between the political parties? Was it a relatively smooth discussion, or were there differing points of views? Did it become contentious at all?

Professor Guðmundur Hálfdánarson: The discussion has been polarised since the crash. As you can imagine, everyone was trying to blame things on someone else. The constitutional debate was fairly smooth until the Supreme Court invalidated the election. The position of the parties was mostly against it and they did not think that constitutional change was a major issue and, as I said before, that it would change much. It was not the constitution to blame. When the Constitutional Assembly was changed to the Constitutional Council, there was much more polarised debate on it, and many people thought that the constitution should either be abolished or the process should be restarted. In a sense, there seems to be a general consensus in Parliament and in political society itself for that process to go on-for Parliament and the parties not to be involved in the constitutional debate itself. The Constitutional Council has been fairly free from any kind of involvement from the political parties. In some sense, I think the weak mandate has strengthened its desire to reach more consensus. The debate has been very open in the Constitutional Council. It has been constructive and there is clearly a very strong desire in the Constitutional Council to come to a more general and unanimous decision in the end when it comes to sending the Bill to Parliament. There is clearly a belief in the Council itself in what it is doing and that it is doing something worth while, and there is desire in the Council to present something of which Parliament has to take constructive consideration. I think in some ways we can say that a weak mandate has strengthened the desire of the Council to work in constructively.

Q71 Andrew Griffiths: Do you think the constitutional change would have happened had it not been for the crisis? Secondly, do you think that there are any lessons that we can learn from the process that took place in Iceland?

Professor Guðmundur Hálfdánarson: On the first question, no. There have been attempts to change the constitution for over 60 years without any results. There have been amendments, but this kind of general rewriting of the constitution has not happened, simply because the political parties could never agree on how to change it. There is an idea that constitutional change has to be made more or less with true consensus rather than through debate. Parliament, could not come to such an agreement. I think that we needed the crisis and the Constitutional Council to break that impasse.

What Britain can learn is difficult for me to tell. Iceland is clearly a very different country from Britain. They have different political traditions. We have a tradition of proportional representation in Parliament, which means that there is always a coalition Government. There is a fairly broad spectrum of political parties representing certain viewpoints from the left to the right. There is much more contact between Parliament and the people because there are only 320,000 inhabitants in Iceland, which is like a small town in Britain, and you also have a very different constitutional tradition. You don’t have a written constitution. What I think you might learn from us is that if you go ahead and write your constitution, you must do it very carefully. Of course you know that, but one of the problems of writing the constitution is the fact that, constitutionally, it can only be amended through constitutional amendment. The way you make constitutional amendments possible is clearly a very important part of any constitution. Perhaps under the new constitutional Bill, you could say that Parliament passes the constitutional amendments but they then go to a referendum. I think some kind of referendum has to be part of the constitutional process.

Q72 Chair: Professor Guðmundur, it has been very interesting so far. I would like to move on to another topic: the legitimacy of constitutional change. I think that we all remember a handful of males getting together in Philadelphia to do the famous United States constitution, but obviously we need to do better than that in the modern era. The British have started to use referendums as a way of addressing some of these issues-some might argue not very successfully, and not preparing particularly well for a serious decision-but I am very interested to see that you have used almost the equivalent of a citizens’ jury to start the process off. I would like your comments on that, but I would also like your comments on how we can involve literally millions of people by using new technology so that were there ever to be constitutional change of any form in the United Kingdom, it could be truly legitimate and have public involvement.

Professor Guðmundur Hálfdánarson: Okay. The process itself started through a very large meeting of 950 people who were chosen randomly from the public. They presented a general opinion of what the constitutional change would involve. This was the process. These kinds of concerns were then taken to experts.

The Chairman’s attention having been called to the fact that three Members were not present, he suspended the proceedings; and another Member having come into the room, and three Members being present, the proceedings were resumed.

Examination of Witnesses

Witnesses: Professor Sir Jeffrey Jowell KCMG, QC, Director, Bingham Centre for the Rule of Law, and Professor Dawn Oliver, Emeritus Professor of Constitutional Law, University College London, gave evidence.

Chair: First, may I apologise for the lack of people? It is just one of those parliamentary days today, after a lot of excitement. I don’t know whether they are all exhausted and on the sofa, but we have had an interesting few days. Also, on a Thursday, I am afraid that some people necessarily take the opportunity to get back to their constituency if there is not business to hold them here. This is not a great turnout, but you have high-quality people at least, and we certainly have high-quality witnesses. We are quorate, so your evidence carries as much weight as everyone else’s.

Sir Jeffrey, I do not think we have met. It is very nice to see you; thank you for coming in.

Professor Sir Jeffrey Jowell: Thank you.

Chair: Dawn, lovely to see you again, welcome.

Professor Dawn Oliver: Thank you, it is good to be here.

Q73 Chair: I think you know where we are, in terms of what the Committee is doing. We are the baby of the Select Committees in that we have been established just one year but, none the less, I think we have already proved ourselves as a useful Select Committee, for example in terms of the work we have done in respect of the Cabinet manual and in respect of parliamentary powers regarding conflict and war-making. We are taking a long-run view about whether we should have a written constitution or not by trying to pull together all the arguments from all sides. That is really the subject on which we would appreciate your expertise, and this is a very free-ranging and open debate, so we would love to hear your views.

Unless you would like to start by making some general comments, perhaps I can just get us started. It is a view that major constitutional change only takes place when there has been a big problem. We heard from the Professor about Iceland, and there was a serious change in the eastern European countries after the fall of Communism, etc. Is that your experience and your view, or can constitutional change happen very consciously because people feel that is more appropriate and a gentler pathway than the process of something very cataclysmic creating constitutional change?

Professor Dawn Oliver: Jeffrey, do you want to go first?

Professor Sir Jeffrey Jowell: I am happy to go first. I don’t believe that is true. I think there are roughly three categories-there may be overlap between them-of constitutional change, as I have observed them or been involved in some of them. The first is new beginning, never again, convulsive change-let’s call it that-which is cataclysmic in some ways. There has been some event-this is South Africa-that is not necessarily accompanied by violence, but a revolutionary change of some kind. We are seeing that kind of change now in Tunisia. There is also the incremental change that we get in this country that is right at the opposite extreme. For many years now, Dawn and I have edited a book called The Changing Constitution. Its seventh edition comes out today, and it shows-

Chair: Congratulations.

Professor Sir Jeffrey Jowell: Thank you.

Chair: I hope that Members can be equipped with a copy. It sounds like just the sort of thing we ought to be reading on our summer holidays.

Professor Sir Jeffrey Jowell: We hope it could be helpful; we would be delighted to do that.

The point about the book is that we in this country do have constitutional principles, and I would say that we have a constitution-albeit not codified-that is found in different places. We have also shown that it obviously changes. I would maintain, and perhaps I will have the opportunity later to say why this ought to be now, that the time is ripe for codification.

The third type of change-let’s call it "adaptive change"-takes place in two circumstances, the first of which is when a country wants to make some significant changes to its constitution or different parts of its constitution. We have seen that recently in a much neglected area of constitutional law in the British Overseas Territories. Many of them are now getting new constitutions. Post-independence constitutions were first. Now they are changing them again because they want more autonomy from the UK. The UK wants-and they sometimes want-a Bill of Rights as well. Instead of amending the constitution in a way that is a bit messy and people won’t properly be able to comprehend, they have changed their constitutions and they have been negotiated in these countries. They have come up through Lancaster House, and that has been an important process. These are new constitutions not because there is convulsive change, but because they want to adapt to a new world. I think that is true in other countries such as Hungary and others, whether we like it or not. It goes in both directions.

There is a second area under the adaptive change that is relevant here: when a country’s constitution is considered less than comprehensible, usually in the light of a series of amendments, so people simply do not know where they stand. It is very similar to the process here of consolidation of statutes. You get something like the Town and Country Planning Act 1947, which is added to and subtracted from over the years. It is added to by statutory instruments, by guidance, by amendments, and the public and their legal advisers at some point cannot really understand what it is all about and what are the rules of the game. Therefore, we must consolidate it so people can understand it again. That kind of consolidation happens in respect of constitutions as well. That is perhaps the closest analogy to this country, because things are all over the place and people do not know where they stand and what the rules are if that is so-and I would say it is so.

There is a strong argument for consolidation in the form of the constitutionalisation of the rules of the games so that people understand them, the institutions and the principles that govern their lives, and so that they can have easy access to that. I can give examples. I will stop on this, but Finland’s 2000 constitution is a very good example of that. It had four different sorts of constitutions and they were all just brought together, not changed in any significant way. There were some changes-inevitably there are a few changes-which was an additional judicial review of statute in that case, but that was not the main issue. The main purpose was to consolidate things to make them comprehensible to the public so that even schoolchildren could understand what the constitution was all about.

Professor Dawn Oliver: Yes, and I think that there will be cases where quite a major constitutional change is made, but that is because the general consensus is that now is the time to do whatever it is and it does not have to be a result of some crisis or event. An example of that would be the New Zealand Constitution Act of 1986, the main purpose of which was to break the legal tie with the United Kingdom. New Zealand was ready for that. That was not controversial. There was not a referendum; they just did it and that is fine. I think you heard last week evidence about the changes to the French constitution, which have given the Conseil Constitutionnel judicial review powers. That is a very important change, but partly a question of changing opinions and conceptions of what the constitution should do. Those are important things, so there does not have to be a crisis of any kind.

Q74 Chair: Just one highly topical question in respect of this week’s events. Obviously, constitutions in the past that we can draw on may have had general freedom of speech clauses, but probably not many had specific things in respect of the press and the media, which over the last 50 years have become immensely important and immensely powerful-and highly political with a small "p", although highly important might be a better way to say it-institutions in civil society. Do you feel that those things can still be covered by general rights legislation, perhaps within a written constitution, or do we need to be a little more specific about the media in the modern age?

Professor Dawn Oliver: For myself, I would not think it appropriate to have much detail about the freedom of the press in a written constitution. I think what is needed is careful thought about the criminal law, obviously, and possibly regulation. I think that the influence of the media in constitutional reform is extremely concerning. In due course, I am sure you will want to talk a bit about legitimacy, but you may have a very "legitimate" referendum and everything reform introduced, and if the Daily Mail or some newspaper takes it into its head that it is going to sell papers by making a mockery of the reform, which of course it has done about the Human Rights Act, that can undermine the legitimacy of a very important constitutional provision. I don’t know what we can do about it, but it just shows you the power of the press.

Professor Sir Jeffrey Jowell: Yes, I think the constitutionalisation of press issues can assist. I think even article 10 of the European convention about press freedom and article 8 about privacy are there now in the Human Rights Act for all to see. Neither one nor other of those principles-press freedom or privacy-is absolute, and each can be limited in favour of the other, but it has to be done in a way that is careful and balancing with the use of concepts of proportionality, and that is probably by the courts, but perhaps some of it can be done by the legislature. Bringing all this out into the open, funnily enough, gives us more equipment to deal with these problems than we had before when nobody knew quite where we stood at all. The sort of constitutionalisation that we have had through the Human Rights Act has at least brought out those principles and shown that they at least need to be balanced and that neither one is absolute. In the United States, of course, press freedom would take precedence over everything under the First Amendment, but that is the way they play it and how they seem to want it. It also shows that how we constitutionalise these issues is an expression of public values and that it proclaims the kind of society that we want to live in. A constitution will never resolve all the ills that British flesh is heir to and, constitution or no, there will still be quarrels or disputes, but the constitution does provide some kind of process by which all these matters can be settled. That is terribly important, too.

Q75 Chair: Sir Jeffrey, I think you are drawing a very strong distinction between a constitution as a vehicle for change and the constitution as a codification of what exists in order to have clarity and ownership. Am I putting words in your mouth?

Professor Sir Jeffrey Jowell: No, I would agree with that. I think it is obviously practically impossible simply to codify. There have been various attempts to do that, but there will always be disputes at the boundaries of certain issues, whether it is the power of Royal Assent-that issue has just arisen in the new draft constitution of Luxembourg-Cabinet responsibility or House of Lords’ powers. When a constitution is codified, there will always be someone who says, "We must use this opportunity to reform it," but I think that certainly it would not be beyond the wit of man or woman simply to try and codify what we have now and produce a little document that we could all carry in our pockets so that we feel some ownership about the constitution.

Q76 Mr Chope: But is not the problem with a written constitution its inflexibility? On today’s Order Paper, the House of Commons is invited to set up a Joint Committee with the Lords to consider privacy and injunctions and, in particular, how best to strike the balance between privacy and freedom of expression, and how to determine whether there is a public interest in material concerning people’s private and family life. In a week when this has been a big issue, the fact that the two Houses can appoint a Joint Committee to look into it demonstrates, does it not, the flexibility of our unwritten constitution that enables both Houses of Parliament to consider and reach conclusions about this very topical issue? If this was dealt with through a written constitution, our hands would be tied or we would be dependent on the courts interpreting the constitution in a particular way. Would you accept that an unwritten constitution as we have gives us a lot more flexibility?

Professor Sir Jeffrey Jowell: I would accept that it gives us more flexibility but, with due respect, I do not accept that written constitutions have no flexibility. The Venice Commission-the Council of Europe’s Commission for Democracy through Law-has recently done a comprehensive and terribly useful paper on constitutional amendments. It has shown that it is something of a myth to suggest that countries that have written constitutions cannot have such discussion or debate, or amendment of the constitution, without necessarily having huge majorities in many cases as well. It depends how the constitution is written. It has gone through all the European constitutions and shown that some are a bit inflexible, particularly the former Soviet Union ones, when it was thought, "We are in a new world now. We don’t want people to get out of it too easily and go back to the old ways." However, others are very sensibly written and allow balancing and flexibility. I think the answer to your question is that that can happen, but it need not happen.

Q77 Mr Chope: Take what is happening in Hungary at the moment. The Venice Commission on which you served has been critical of the Hungarian constitution, but this is a brand new constitution endorsed by a newly elected Parliament. What you seem to be saying-or the Venice Commission was saying, and now the European Parliament is saying-is that it is inflexible and wrong, and that it includes a lot of material that will, for example, prevent people in the future from being able to participate in what are called gay marriages.

Professor Sir Jeffrey Jowell: Yes. I would say that the Hungarian constitutional process is a good example from which we can all learn about how not to go about things. You have a new Government coming in with a particular point of view who are trying to establish, endorse and perpetuate their point of view through a constitution. The Opposition are not participating in the process, and there is also an attempt to trim the sails of the court by not allowing it to go into certain areas and taking away some of its powers, and to establish certain values under the preamble and create all sorts of provisions where it is almost impossible to change the constitution. I think that that is an example of how not to go about things.

Q78 Mr Chope: As soon as you say that you are going to have a written constitution, surely that process is under the control of the Government. For example, if we said here that we were going to have a written constitution-or, as you put it, a codified constitution-we would be at the mercy of the Government. The Government might be very benevolent, but they might be, as you are describing them, the Government in Hungary.

Professor Sir Jeffrey Jowell: This raises the question of legitimacy. Obviously, there is an ideal way to do it, and I mentioned Finland, where they had all these different constitutional provisions. They brought them together, with cross-party support in that case, and a referendum was considered completely unnecessary because everybody seemed to agree that that was simply a codification process. One or two controversial issues were fought out through explanation, discussion and debate as they would be with any legislative process. That is a much better way to go about it. Ideally, of course, there would be cross-party support for this sort of thing.

Professor Dawn Oliver: Yes, I think it will also depend on how detailed the written constitution is. If one was thinking of codifying, more or less, and if one could possibly agree about the existing arrangements in this country, a decision would have to be made about how much detail to go into. I would not expect there to be limits on the Select Committees or the Joint Committees that the two Houses could create and what their terms of reference could be. That would be an extraordinary level of detail. If it was just a framework, but perhaps pointing out some of the most central things-human rights protection and so on-in a bit more detail, I do not think that that need limit what the existing institutions could do.

Q79 Mr Chope: So you support trying to codify all the common law?

Professor Dawn Oliver: I am not actually saying that. I have to say that my own position is that that is probably politically impossible, but whether it is a good thing or not, I do not see it happening, although you don’t need to know that, really. If one was committed to codifying what we have, it would not by any means follow that you had to codify every rule of the common law and every rule in the Standing Orders of the two Houses. You could produce a framework. If-and this is a big if-the purpose is to give some clarity to people who want to know roughly what the constitution is about, you would not want to produce an enormously long and detailed document because most people would not be able to make head or tail of it. One would be thinking of a fairly short document that sets out the most basic rules, and it need not entrench them; it seems to me that that is a different issue.

Q80 Mr Chope: One final question: you were rather critical just now of the Daily Mail, but surely a lot of the reporting in the Daily Mail is making clear to its readers that the UK Parliament has lost control over a lot of human rights issues, that even our own courts are being overruled by an international court or courts, and that that is to the detriment of parliamentary democracy. What is wrong with the Daily Mail bringing that to the attention of its readers?

Professor Dawn Oliver: My own sense-I have to say that I hardly ever read the Daily Mail; I read other papers criticising the Daily Mail and so on-is that some of the criticism made of the courts is just plain unfair and inaccurate. Of course you can criticise some of the decisions that the courts make, but there is a lot of scaremongering about how various things the police might want to do could be invasions of privacy-I don’t want to go into details. Newspapers are there to sell papers. You don’t sell papers by saying, "Everything is tickety-boo and that was a wonderful decision the court made." I am afraid that you sell papers by saying, "This is barmy," and that can result in undermining the legitimacy of a measure.

My own view-and I know there is discussion about this now-is that if we were able to formulate a new British Bill of Rights that was passed by Parliament-perhaps there would be a referendum-that would not stop newspapers thinking, "We can sell copies by ridiculing the latest judge’s judicial decision." I don’t think legitimacy is a once and for all thing. You can get legitimacy today, in 10 years’ time or five years’ time, but the next time a judge makes a decision that can be ridiculed, the legitimacy weakens.

Q81 Mr Chope: You are criticising the newspapers for wanting to sell newspapers. Aren’t you really criticising people for choosing to buy those newspapers?

Professor Dawn Oliver: Maybe, yes.

Q82 Chair: To get a sense of the codification, we are not looking at the detail of how a Joint Committee is constituted in the innards-the bowels-of the House of Commons. Are we not looking at things such as defining the separation of powers, and at being clear about the rule of law, the rights and responsibilities of local and central Government, and what individuals can expect as members of society in terms of their rights and responsibilities? Is that the sort of pulling together of what we have at the moment in codification terms? I am just trying to counter-pose. Do we really want highly detailed stuff and a yard-thick constitution, or are we looking for something short, sharp and inspirational that motivates people to understand how they are governed and how they can participate in society?

Professor Sir Jeffrey Jowell: I feel very strongly the latter. It should be short and sharp. It should set out our institutions of government so that people can see what the powers are, who they can complain to, how they can challenge decisions, and also-from the point of view of the Administration, the Government and the legislature-who is enabled to do what. It is not only disabling Government; it is enabling Government. That is what a constitution does. It should set it out very seriously. The late Lord Bingham in a lecture that will be published in a book soon to appear said that, constitutionally speaking, we now find ourselves "in a trackless desert without map or compass". He said that he would favour a very sparsely drawn constitution that would possess the virtue of enabling any citizen to ascertain the cardinal rules-and only the cardinal rules-regulating the government of the state of which he or she is a member. That is all. If you look to other constitutions, that is basically what they do.

The most convoluted and detailed constitutions are those of the former Soviet Union countries. Look at the Belarus constitution. It is the longest and most confusing of all. It has rights that everybody must look after everybody else. It says that if you see somebody approaching the river, please warn him that he should not jump in, and that old people must look after young people and young people must look after old people. Those are all very nice sentiments-they are lovely aspirations-but they are totally impossible to enforce. That is the kind of constitution you want to avoid. There is a kind that would, I think, certainly assist everybody: if you go to South Africa, you see children, and people on public transport and in the streets, carrying little copies of their constitution. They have ownership of it, they can understand it, and they know what rights they have and what rights the Government have over them. That is all it is for.

Chair: Dawn, any comment-

Professor Dawn Oliver: No, I agree.

Q83 Chair: On the level of detail in the constitution.

Professor Dawn Oliver: I agree that if it was going to be done, there should be only the basics and not much detail, but even with that there are difficulties. As you know, the Constitutional Reform Act lays down-I can’t quite remember how it is put-that the existing understanding of the rule of law should not be altered. Well, there is a big debate about what "the rule of law" means and about whether the existing idea-the 2006 idea-of the rule of law is entrenched forever. It is a symbolic statement. It is important, but if people start wanting to argue about it, there is a lot of debate to be had. If what one wants is something that is inspiring and that gives a rough-and-ready idea of the wonderfulness of the system and so on, that is fine, but there are difficulties if people start saying, "What does it mean?" We are talking about the relations between local and Central Government and their relative responsibilities. That could get one into quite a lot of detail, and we all know that there has been an enormous amount of change over the years to the role and powers of local government. If we were talking about codifying, I am not sure that one would want to freeze the powers of local government today for ever. I would be rather surprised if anyone thought that that was a good idea. You could probably say only something fairly vague about that particular matter.

Q84 Chair: We are looking at that, by the way. In a sense, you are not arguing for a document about political change; you are arguing, in effect, for due process-that people will understand how things work-rather than that we need to change what there is because it does not work well. The procedure of how we run our lives is the reasoning, I guess.

Professor Dawn Oliver: Yes, but not only that-I am sorry. If one was going to say anything about human rights, that seems to me to be substance. I think we have been talking in the past few minutes about codification of what we now have. Of course, there could be people who would say, "Why don’t we take the opportunity now to change things and improve them?" but that is a much more difficult thing to do.

Q85 Chair: Are you saying that they will have to win people from a current position, rather than complicate the issue of codification by fighting that cause at that moment?

Professor Dawn Oliver: Yes.

Professor Sir Jeffrey Jowell: I would say codification is the minimum. It certainly could be done. It is quite easy to do in the sense that every constitution in the world, bar about three or four, has done it quite adequately. You just have to look at them and you will see institutions of government set out quite simply. Normally there will be controversy about the preamble. The Hungarian preamble, which was referred to in your last meeting, contains all sorts of nationalistic sentiments with which we would not agree, but the South African one, which proclaims freedom, equality and the rule of law, is something to which we could subscribe. It does proclaim these values to people. We are in a much more multicultural environment now, with minorities, immigrants, and people not sharing views and not being as deferential as they used to be, and this sort of document could bind us all.

Q86 Chair: I want to test your views on the concept of flexibility. Are there many examples of flexibility operating to the benefit of individuals fighting against governmental power, or are there many examples of flexibility in local government arguing against central Government? Is the flexibility actually the flexibility of the people who run the place at the moment being able to make things up as they go along, often to the detriment of people who are in that very flexible, fluid situation?

Professor Sir Jeffrey Jowell: I think that one of the great contributions to this country-call it the common law, if you like-was through judicial review of administrative decisions. Even in the 1950s and early 1960s, it used to be the case that the Government could do what they liked and people could not really challenge decisions of any public person or authority. That has changed, and the South Africans actually constitutionalised our notion of judicial review. They called it "The right to administrative justice" and it is in their constitution. That allows individuals to challenge all public decisions on the grounds of illegality, which is the rule of law-or a lack of the rule of law-unfairness of procedure and unreasonableness. This allows that kind of challenge and builds it into the constitution. The reason why I mention judicial review is that within it is the principle that you should fulfil-I am getting a bit technical now-the legitimate expectations of individuals. You should not suddenly turn around and dash their promises, but also no public official should fetter their discretion. In other words, they should also have the power to change their mind in the public interest. These are values within our constitutional framework because they are deep within our judicial review. Who knows about them? They would be known, or better known, if they were in a constitutional document.

Professor Dawn Oliver: My thought is that we do have a legally very flexible constitution, although I think it is not always politically very flexible. Obviously, at the moment, we are going through-we have done for a good 10 years-a period of a lot of constitutional change, but until about 1979, very little really changed, except in relation to local government, so I think that, politically, the system was a bit inflexible. No one was interested enough in constitutional change to effect it. Anyway, for the past 20 or 30 years or so, we have been politically flexible, but we have always been legally flexible. If one was codifying the existing constitution, I suspect that you would want to codify its flexibility. I am not sure what one would want to say about the grounds for judicial review. You could say something about the existence of the jurisdiction of the courts in judicial review, but whether you would want to freeze what we have now, which might make it difficult for that to develop in 10 or 15 years, is a difficult question, I think.

Professor Sir Jeffrey Jowell: I agree.

Q87 Chair: There are those who say that people who support a written constitution see it as a cure-all and a panacea. Are you among that group?

Professor Dawn Oliver: I am not, no.

Professor Sir Jeffrey Jowell: No.

Professor Dawn Oliver: It depends what is in it, really.

Professor Sir Jeffrey Jowell: It won’t cure all; it will cure some. It will certainly cure a certain kind of ignorance. I am no longer deeply involved in the law faculty at University College, London, but when I was a couple of years ago, I would always interview a few students seeking a place to read law. I was invariably almost universally disappointed about how little they knew, even though they knew they were coming up to read the law degree, but also about how little they had prepared themselves about what our constitution-our unwritten, non-codified constitution, I should say-was all about, who the various players were, what you did, what your powers were, what you could not do, the relationship among you, the courts, the Executive and the Monarch, and all those positions with funny names-Chancellors of this and Lord Chancellors of that.

Professor Dawn Oliver: The Comptroller and Auditor General.

Professor Sir Jeffrey Jowell: The constitution won’t cure all that, but at least it will put it down there so that people can say, "Ah, these are the powers that they all have. These are the bodies to which I can go to try and assert my rights, and these are issues that-dare I say it-are beyond even the power of the legislature and public officials, or at least are expected to be, because they concern fundamental rights that we all ought to have". That is the kind of thing that a constitution would help to do, but it is not a panacea.

Q88 Chair: "Transparency" is a word that we hear a lot. Certainly, when working in Whitehall-in another guise on early intervention matters-I was told that we should not set up a body to do this from Government and that we should not direct people because there is a new spirit of localism, but that what we should do is make what happens absolutely transparent. That is actually in itself a good thing and is a catharsis so that anybody can understand where we are. Is that-

Professor Sir Jeffrey Jowell: Yes, and at the moment, in Lord Bingham’s words, it is "a trackless desert without map or compass".

Q89 Andrew Griffiths: Can I come back to a few of the things that we have discussed before I move on to the questions I wanted to ask? Sir Jeffrey, you mentioned on a couple of occasions this idea of the British people walking around with a copy of the constitution in their pocket. If we had a written constitution, do you genuinely think that the British public would carry it around in their back pocket so that they could refer to it on a regular basis?

Professor Sir Jeffrey Jowell: I would not say that it would have the kind of weight or utility of a bus pass, but I do think that some will see that there is something in there of which they were completely unaware. We could then go into schools, take out the constitution and show people how the country works in a much more coherent fashion than we can now do, because now we have to go to about 25 textbooks and much legislation and the common law, which is totally inaccessible to everyday people. It would proclaim certain values such as-however vague it may be, it certainly has specifics-the rule of law and the independence of the judiciary, and it would contain rights. Perhaps people would not carry it around much, but hopefully it would be available in libraries-if they still exist-homes, schools, police stations, local authorities and NGOs, so it would be available.

Q90 Andrew Griffiths: You say that it would not be too prescriptive because otherwise it would be inflexible, but it would not be any use to somebody in a police station for a specific reason, would it, if they wanted to find out an issue of the law?

Professor Sir Jeffrey Jowell: No, except that they could see their rights in respect of personal liberty, which is quite important-it is an important part of a constitution-and in respect of a fair trial.

Q91 Andrew Griffiths: You spoke earlier about codification as being the minimum that one could expect. Were you alluding to the fact that if we went for a written constitution, not only would we codify the laws as they stand, but people would automatically move on so that there would be mission creep in relation to what a written constitution says? If that happened, is there not a danger that issues that were not politically important enough to make it on to the statute books, or to become a political issue, would be added into a constitution just because they could then, because it was easier?

Professor Sir Jeffrey Jowell: Is it a danger or is it an opportunity? It could be a danger if it were sabotaged by people who wanted unreasonable things, or things that people had not really thought about, or that needed a bit of consideration and time, that could just as easily be introduced by way of legislation. Looking at the other constitutions, it is quite interesting to see that the kinds of bodies that we take for granted now, such as corruption commissions, were first introduced constitutionally all over the world. We started with our Standards in Public Life and so on, but these were taken up as commissions. They have been very helpful to a number of countries that really need them-perhaps we do as well. We have them in different forms now through statutes but, again, as the corruption commission, press complaints, access to information commissions, the ombudsman, the public prosecutor’s role, the role of the Attorney-General and so on. Judicial Appointments Commissions were only recently thought of and brought into constitutions. I believe that many of these have been improvements to our public life and our notions of accountability.

The ideas often came through this kind of constitutional creep in various countries that were seeking to do a little more to achieve not only the normal kinds of accountability through the sort of things that you do through parliamentary questions and committees such as this, but through these external, independent committees. Sometimes yes and sometimes no, but I would say, as a minimum, that it would be better than what we have now if we had some kind of coherence and transparency so that people knew the rules of the game and could have easy access to them. I am also aware that, practically, it will give rise to some mischief, but also perhaps to some opportunities.

Q92 Andrew Griffiths: Let us move on to the issue of legitimacy. With a written constitution or a major constitutional change, do you think that there is a need to have a direct representation of the people? Is the issue of referendums important if there is going to be legitimacy in constitutional change?

Professor Dawn Oliver: Not necessarily. I think that it depends very much on how controversial the change is. Many changes that are made will be pretty uncontroversial, such as New Zealand severing its legal link with the United Kingdom. That went through without any difficulty, and I think it probably would have been rather a nuisance and unnecessary to have a referendum on that. It would be difficult to have a test that if something is controversial, you should have a referendum, and if it is not controversial, you should not. I do not think that that would deal with it, so I am not quite sure how one would deal with it.

Also with referendums, a very clever point was made by Vernon Bogdanor in a book he published some time ago about referendums and electoral systems. He said, "A referendum can articulate a submerged consensus, but it can’t create a consensus," so even if you get a majority in a referendum-obviously not with 100% of people voting, we assume-it does not mean that there will be real consensus, which will mean that whatever it is that has gone through will not have enduring legitimacy. There are some things on which there is a submerged consensus and the referendum can confirm that it exists. So I don’t have a formula for saying when a referendum would be appropriate and when it would not, but I certainly don’t think that a referendum should always be required if a constitutional change is being considered.

If a proposal is very controversial, particularly among the political parties, and the attitudes to it therefore look as if they are rather self-interested and partisan, it will look very bad if there is not some proper public involvement. In some countries, and Finland, I think, is one-[Interruption.] I am sorry; shall I stop?

Andrew Griffiths: No.

Professor Dawn Oliver: There are provisions. I don’t recommend this, but this is just what can happen: you will have a constitutional amendment or reform passed by the Parliament. There will then be an intervening election, and then it will be passed by the Parliament again, perhaps on a two-thirds majority. Of course, what happens then is that one of the issues in the election-although it might not be the only one, because elections are about all sorts of things-might have been this constitutional reform, and whatever party wins the election or whatever coalition wins the election will then-sort of-have legitimacy in pushing forward the reform. I think what I am saying is that there are various ways of trying to legitimise controversial reforms, but my own concern is that legitimacy does not last forever unless it is embedded in the psyche of the country, as the United States Constitution is, for example.

Q93 Chair: If Andrew will allow me to pursue this point: when you talk about the constitution, I am assuming that you mean the written constitution, if that exists?

Professor Dawn Oliver: Yes.

Q94 Chair: If it exists in the form that you were suggesting earlier-as big, overarching principles rather than nitty-gritty detail-isn’t it really important that the people have a say? Should some of those serious overarching principles be challenged or up for change, and isn’t a referendum a better expression of that because it focuses on an idea? If you have it in the maelstrom of a general election, or even two general elections, it is one of many things and it could get lost.

Professor Sir Jeffrey Jowell: Can I have a stab at that? A referendum is obviously the most complete form of acceptance that you can get, although it depends on the majority. As we have seen recently in respect of the European issue, when it squeaked through with a 51 or 50.5 majority in one case, nobody thought that that gave legitimacy to much, so in that sense there are problems with referenda. The other problem with a referendum-again, we saw this in respect of the European Constitution-is that with a constitution containing so many provisions, you might have just one issue, or two or three issues, being practically debated. It could be something like gay marriage about which feelings run high, and in the end you find that people are voting not on the constitution, but on whether the constitution is going to bring in something about which they really disapprove of. You can’t say, "I want this bit, but not that bit"-we have tried.

I advised recently on the Cayman Islands Constitution. Incidentally, there was a vast amount of public participation in the constitutional process through a permanent television programme devoted to the constitution, meetings up and down a very tiny country-but meetings nevertheless-and all sorts of internet and e-mail contact, plus a referendum passed by about 60%. The question was raised a few times, "Could we allow a ‘yes, but’ answer-to say I like this bit, but I don’t like that bit-and have votes on all the different parts of the constitution?" It became so messy as to be impossible, so the defect of having a whole constitution put to a national referendum is that it does not allow people to say, "Yes, but."

Chair: Sorry, Andrew, please continue.

Q95 Andrew Griffiths: Yes. Where was I in my train of thought? Looking at the lessons that can be learned from other countries, are you noticing that there is an increase in the number of countries that are looking for constitutional change now? As a result of the economic uncertainty, have you found that countries are pressing to have changes in their constitution, and are you finding that any of those changes seem to address the issues that caused the change in the first place?

Professor Sir Jeffrey Jowell: I found that the Venice Commission thought that after the first wave of former Soviet constitutions had finished, it would not have much work to do, and it was a bit worried about that. In fact, it has more work than it has ever had because the constitutions are now changing, sometimes for very good reason. Some of the initial constitutions-Ukraine, for example-were somewhat imposed by the west saying, "You people need strong presidents because you have always had strong presidents and you have rather an authoritarian population". So Mr Kuchma comes in and he is too strong a president, and there is a wave against that. A few years later, people say, "Let’s amend the constitution to give much more power to Parliament." This has happened in a few of those constitutions. That is the kind of adaptive change I was talking about; not wholesale change but that sort of change.

Then there are other countries-western European countries such as Luxembourg. They have a slight crisis because the Grand Duke has been refusing Royal Assent to some legislation against his principles, one on the question of mercy killing and I think the other one on abortion. He voluntarily came to Parliament and said, "Look, I don’t want to do this anymore. I would love to remain Grand Duke"-and the people tend to rather like him; again, this is a very, very small country-"but I don’t think I should be able to veto legislation". So we had to come in and say, "This is one of the issues with how do you draft it? How can you draft a notion of representative principle with the Grand Duke but, nevertheless, he cannot veto legislation any longer outside an emergency?" Because of that trigger, in this case, the Luxembourg constitution is being extensively revised because they find old-fashioned parts that are completely out of date in bits of it. It then becomes an opportunity, so change is happening at the moment through that.

There are many others-I could go on-such as Finland. I keep on mentioning Finland, but I think that was a very good example of a constitution that didn’t really need changing. It was all there and all written down. I am sorry to be so repetitive about it, but I think it is a good example for us, namely because it consolidated, as we would consolidate a statute, and made the constitution far more comprehensible.

Q96 Andrew Griffiths: My memory has been jogged by something you said earlier about the legitimacy of referendums-that if it was 50.1%, nobody thinks it is legitimate and therefore the change does not stick. Do you think that that means that, for major constitutional changes, there should be both a threshold and a turnout, both in terms of the percentage you have to reach and the percentage of population you can cover?

Professor Sir Jeffrey Jowell: That is certainly a technique; there are so many techniques. The Venice Commission-sorry to harp on about it-documents amendments of constitutions. We are talking there about amendments of constitutions rather than rewriting new constitutions, but many of the same principles apply. The Constitution Committee in the other place has recently been considering whether legislation that has constitutional implications ought to be subject to certain kinds of procedures in addition to those that are normally provided for by legislation, such as the time of delay for the introduction of special majorities, the need for special consultation procedures and a higher quorum. In other countries, they have review by the Supreme Court and the convening of special bodies such as Royal Commissions. There are so many different techniques. If I may answer it, certainly that is one of them, and it could be used just to get over that question of the 50.5%.

Q97 Andrew Griffiths: Professor Oliver, you said earlier that over the past 20 years we had seen profound constitutional change in this country. Do you think that that was done legitimately? Do you think that there was need? Can you think of any constitutional changes on which there should have been a referendum? If the Government get their way, we are about to embark on another serious, fundamental constitutional change in relation to the House of Lords. Is it your view that such a change would need a referendum to make it legitimate?

Professor Dawn Oliver: First, focusing on what has gone in the past, there were referendums about devolution. That seems to me to be right. However, I don’t see any reason why there should have been a referendum on freedom of information, probably partly because it was against the interests of politicians and you usually get referendums to stop politicians taking advantage-perhaps I am just being cynical about it.

As far as reform of the second Chamber is concerned, if the proposal was for an elected second Chamber, I would not see the point of having a referendum, because that gives power to the people. You don’t need to know what my views are about that, but if it is going to be an elected House, I don’t see the point of a referendum.

Q98 Andrew Griffiths: Even if the way in which that elected House was being elected-i.e. the voting system-was a fundamental change?

Professor Dawn Oliver: It will be a fundamental change from appointment, won’t it, but you are thinking about-

Andrew Griffiths: What I mean is if you go for a different way of voting.

Professor Dawn Oliver: Yes. I don’t think I have understood. For example, are you thinking about whether one should choose between STV and closed lists-

Q99 Andrew Griffiths: What I am saying is: if the Government have their way and we go to an elected Senate, that elected Senate would not just have legitimacy. You say that it would have legitimacy because it would be elected, but it would be elected with a different voting system.

Professor Dawn Oliver: Yes.

Q100 Andrew Griffiths: Do you think that that sort of change would need a referendum to push it through?

Professor Dawn Oliver: I think that my concern about that would be that this would be far too complicated a question for the electors to be expected to help on, because the question would be something along the lines of "Would you like to stick with what we have or have an STV elected second Chamber or a closed list elected?" or whatever. I think that that is just too complicated, and you would get a whole lot of party political stuff into the picture, which I think would rather confuse people and make the result confusing.

Professor Sir Jeffrey Jowell: Particularly, if I may say, if there were substantial cross-party support, I think that that would be a pre-condition not to have it. I think it is an alternative, and this is what happens in other countries. If there is that degree of support, a referendum is certainly not considered necessary if you consider yourselves mainly a representative democracy.

Q101 Andrew Griffiths: You mentioned cross-party support earlier. In order to have major constitutional change, do you think that you have to have more than the governing party-you have to have cross-party support?

Professor Sir Jeffrey Jowell: I have to say I do. I think there are certain parts of a constitution that could be enacted by one particular party, as we have seen. We have seen the Bill of Rights and the Human Rights Act introduced by one party, but there was a strong manifesto commitment there. In my view, we saw perhaps one of the most significant constitutional changes under the 1997 Labour Government, without even a manifesto commitment, and that was the establishment of the independence of the Bank of England. There was no manifesto commitment; they just said on the first day, "This is what we are going to do." There was no indication in advance of that major constitutional change.

Although I think it can happen, and it can happen successfully if the mood is there and there is no serious objection, it is obviously better for the future, and I think it would have probably been better even for the Human Rights Act if there had been a measure of consultation in advance and cross-party support. Perhaps it was impossible politically; it probably was, but there you are.

Q102 Chair: Drawing on the Iceland example that we heard from the Professor earlier, I took from it that, certainly in our system, many people feel that the role of the Opposition in Parliament is to oppose and not much else. If I may enter the confessional, my party is now opposing to some extent changes on reforming the House of Lords, which has been a long-held belief and value of the Labour Party. There has been a campaign for many years on fixed-term Parliaments, but, no, it is thought that we should try and work some oppositional view there, although we might say, "Yes, we still believe in those things but the way they are doing it is something we don’t like". This isn’t just my own party. Having sat on the other side, so to speak, it is the way of the parliamentary world. What I took from Iceland was that they had an almost pre-parliamentary run round the course with people who could not be described as party political or partisan, and then from that arose a set of changes-perhaps I am reading too much into it-that seemed to defuse the need to be for or against immediately. From what little we have heard this morning, it appears that then a consensus could arise. Is that a common way forward or, as Chris Chope said, is it almost invariably those who have Executive powers who will decide, and they will ram it through come what may, or be opposed come what may?

Professor Dawn Oliver: I don’t know that I have enough experience of other countries, but there are very stark differences between countries in which the political scene is fairly consensual, and there are probably coalitions and no big disputes, and then this country, which clearly is, by and large, very Opposition and Government-oriented. I think the reasons for that are probably very complex. In this country, I think there are the vestiges of the class system and there are deep divisions in society, whereas in some countries there are not very deep divisions. There are all sorts of explanations, no doubt, for the different cultures, but in this country, the Opposition oppose and the Government try to do what they will, and it is very unusual for the parties to try to get together.

I don’t know what is happening about dealing with pensions, which I think is not a constitutional issue, but this might be something on which the parties are going to think, "Look, there is a real problem here. We had better solve it and not be too much Government versus Opposition". I don’t know enough about that. Generally, yes, the Opposition think their role is to oppose, and that is culture-that is life.

Professor Sir Jeffrey Jowell: My view is that this Committee and the Lords Constitution Committee, which is looking at a similar question, as I mentioned, could do a great service in the public interest if they could see a way of somehow extrapolating constitutional issues and attempting-at least on these questions-to take the political sting out of them so that they are seen as issues involving all of us in the future as the framework for decision making and principles. One understands the inevitable human nature and the trends of the party political adversarial system, but it would obviously be better to have constitutional matters, if not entirely depoliticised, in some way treated in a way that seeks initially to get cross-party support.

Chair: I am sure that there will be lots of political sting in this Committee. I am also confident that we will be rounded in our view and that we will make sure that all views are expressed in whatever we decide to come up with at the end, but these are issues that do create very strong opinions on all sides.

Q103 Mr Chope: May I ask Sir Jeffrey what he thinks the Venice Commission would make of the unwritten British constitution, as it now stands, if it was presented to it for its comments?

Professor Sir Jeffrey Jowell: First, it would take a very long time to read our unwritten constitution as it now stands, because the commission would have to go to so many different sources. The general view is that even in this country people always say, "You have an unwritten constitution. It is written down in so many different places-in statutes, in the common law, in law reports, all over the place". I think its first view might well be, "The only way we could do this examination is for somebody to write down for us what it is all about." Our book tries to do that to some extent, but it is pretty long and not everybody agrees with what is said there-it is more of a speculative book. There are textbooks, so it could take Bradley and Ewing or one of those books. It could take Richard Gordon’s recent book, which seeks to codify some of the principles of the constitution.

I think what it would then see is a mature, democratic constitution of a very fine kind. There is nothing in it to which it could really object. We have independence of the judiciary. To some extent we have separation of powers-enough anyway. In the past, there was criticism of the appointment of judges by the former Lord Chancellor and the fact that he sat as a judge although he was a politician and a Cabinet Minister. That it has pointed to, but in recent years, it has not pointed to much. It has pointed to some aspects of our election practices that have not been secret enough in Northern Ireland-that kind of thing. It is seized from time to time about our constitutional practices. They would say, "All in all, it is a fine constitution. Why on earth don’t you write it down so it is accessible-both to us and to yourselves?"

Q104 Mr Chope: You have quoted on several occasions what the late Lord Bingham said about it being a "trackless desert without a map or compass", but are you suggesting that the codification-or writing it down-would provide the map, the compass or both?

Professor Sir Jeffrey Jowell: It would not provide everything, but it would provide so much more than there is now. It would make it accessible and coherent. It would proclaim certain values that people don’t have a clue about and try to make them comprehensible. It would not solve all your problems. It certainly will not solve all the problems about the media, the press and the different issues that arise every day. It provides the framework, though, for the peaceful resolution of those kinds of issues, and it splits responsibility for the resolution of those problems between this House, the other House, the courts and various other independent bodies. This is its beauty, and this is why we should proclaim it and write it down, because it is all there.

Q105 Mr Chope: In your view, if you have a written constitution, should it incorporate responsibilities as well as rights?

Professor Sir Jeffrey Jowell: I think that there are certain responsibilities already. Even in our rights, there are responsibilities. One person’s right is another’s responsibility: the responsibility of Government to behave in a way that is rational and respect people’s liberties, and the responsibility of people to obey the law and to do jury service-all that sort of thing. I think those can all go in. There is no reason why not at all. I think some of the responsibilities that I mentioned in the Belarus constitution become a bit absurd, because they are simply pie in the sky. They are lovely aspirations but unenforceable. You have to be a bit careful about that in a constitution, because if too much is unenforceable, you have what was done in the Soviet Union in the past. "We have this lovely constitution," they always used to say, "the best constitution in the world. It is about rights, but it is also about our responsibilities to the State and to the party. We will have a shot of vodka to celebrate the constitution, and we will chuck the constitution over our shoulder with the shot of vodka and never see it again," and sometimes-

Q106 Mr Chope: What about that old English principle of equity-that you can’t come to the court and seek redress without coming with clean hands? Do you think that that should be incorporated in a constitution?

Professor Sir Jeffrey Jowell: It is so deeply embedded in our common law, which would persist. There is nothing in any constitution that says that principles of equity, or age-old principles that are deep in your legal system, are going to be jettisoned simply because you have a constitution. They are still there, and when the judges look at it, they will refer to those principles as well as others that are in the constitution.

Q107 Mr Chope: In a sense, those principles of equity have been ignored in quite a lot of the recent judgments of the European Court of Human Rights affecting our country.

Professor Sir Jeffrey Jowell: That is a large discussion. I would like chapter and verse on that and I would like three hours to respond.

Q108 Mr Chope: Okay. My last question: you both seem to be experts on the Finnish constitution. Can I ask what elements in the Finnish constitution you think have facilitated the growth and creation of the True Finns as a very important political force in Finland?

Professor Dawn Oliver: I think one of the things that help is that they are a fairly homogeneous, coherent society. Of course, that has been encouraged by the fact that they were very much under the shadow of the Soviet Union for many years, so having a common enemy out there is very good-I mean, it is not good, but one thing it does is build up social solidarity. What is very interesting is that the political system is fairly consensual and it is very trusting. For example, there is not much of a power in the Supreme Court to set aside laws that are "unconstitutional", although they will give effect directly to the constitution if they are concerned about more recent Acts, but they have a very highly respected Constitutional Committee in their single-chamber Parliament, which has responsibility for scrutinising all Bills and reporting to the Parliament on whether they are compatible with the constitution. They exercise a sort of judicial process. They will call for evidence, and they will call civil servants, Ministers and so on to explain the proposals. That is a fairly effective way of deterring the Government and the Parliament from passing legislation that is incompatible with their constitution.

The point I am trying to make is that how a constitution works is not just a question of the words in the constitution. It is very much to do with the tradition, the culture of the participants-in this case, the politicians-and also of judges, because the Supreme Court respects and trusts the politicians, and the politicians, as far as I know, trust the courts. So I think one has to bear that in mind when you are particularly thinking about whether to borrow what look like good ideas from other constitutions. One has to be absolutely aware of any differences of culture that affect the actual working of something, because writing something down in a constitution does not mean it is going to happen. This came to me very strongly when I looked at the Kenyan constitution recently, which looks like a very wonderful, modern constitution. The problems in Kenya are tribalism and corruption, and probably a whole lot of others, too. The constitution says something like, "It is the duty of the Government to promote the general public interest," and I am thinking, "Right, that is wonderful, but it does not mean that is what they are going to do, because the realities are the realities."

Q109 Mr Chope: In this country, the electoral success of the True Finns has been regarded as almost equivalent to a popular revolution taking place. Would you interpret it in that way and, if so, was it facilitated by the constitution, or do you think that would have happened anyway?

Professor Dawn Oliver: I don’t think I can answer that.

Professor Sir Jeffrey Jowell: Yes, occasionally you are disappointed. Certainly those of us in the business of constitutional advice are often disappointed. I advised on the Moldovan constitution a few years back and they rewarded me by voting in, under the new and much freer system of election, a Communist Government. Now that is gratitude, and this happens from time to time. By the way, I should have mentioned that the Swiss constitution is being revised, and possibly a new constitution is coming out at the moment. That is an interesting exercise, too-there is no real reason to do it, but it has become a bit messy, so there are many bits at the edges that nobody is quite sure about, and it has been amended too often over the years, often with referenda. They want to bring it all together again, and it might be worth looking at. We can be sure there that they will try and validate the constitution through a referendum-they always do.

Q110 Andrew Griffiths: Just one more question. Sir Jeffrey, you mentioned earlier how difficult it would be to write down the British convention as it is at the moment. How long do you think it would take to come up with a constitution for the UK, in terms of legislative time, and at a time when we are faced with so many political and economic problems, do you think that there would be an appetite for spending that amount of time looking at this thing?

Professor Sir Jeffrey Jowell: Your second question first. I think it would be tragic if, because of the problems and difficulties that we are having at the moment and all the downsides and issues, we neglected the jewel of this country: its democratic constitutional system, which needs always to be perfected for the interests of future generations. That is why this Committee, if I may say so, is so important.

Secondly, I would say that we could do that pretty quickly; I say "we"; constitutional people involved in constitutional law, because there are models and it would not take much time, could produce a draft very quickly. Of course there would then be discussion. I have here somewhere the Cabinet Office manual, which is a kind of constitution. It does not include a lot. It does some good things. It sets in the constitutional context for our international obligations and our non-obligations. It deals with a lot, but by no means everything. But there is a draft of a kind. It is not intended for the public, as it is far too long, but in my view it is very well drafted.

Q111 Andrew Griffiths: You could not get it in your pocket. That is for sure.

Professor Sir Jeffrey Jowell: No, but you never know what publishers these days could do to contract it.

Professor Dawn Oliver: We could get it on a memory stick.

Professor Sir Jeffrey Jowell: Then there is Richard Gordon’s book, so he has had a stab, and the IPPR had a stab as have others. It would not take too long at all. Then, of course, there would be discussion of, "What do we really mean about this?" Then you get the mischief makers and others who would come in and say, "This is a real opportunity. Why don’t we use this," and, "Some other constitution has done the following, and what about a few responsibilities?" and so on. But I believe it would be an exercise in public education.

Q112 Andrew Griffiths: Estimated time-

Professor Sir Jeffrey Jowell: I am off again. You would not want it to go too quickly because you want people to feel that they are properly involved, particularly if you are not going to have a referendum. You don’t want people to feel it is being imposed upon them too quickly, because it is a change-it is a codification. It is a different kind of system that we will have, and people ought to have explained what will be different, if anything will be different, and what will not be different. There is also the very legitimate question of the extent to which our flexibility in the future will be curtailed. All those issues would have to be looked at, so I would think a year or two, or perhaps 18 months. The draft could be done quickly, and then the discussion could follow over a year or 18 months.

Chair: With a fixed-term five-year Parliament, we will obviously need one or two things to keep us busy, so you may have come up with just the thing.

Sir Jeffrey and Dawn, thank you so much for your advice this morning. We have very much appreciated you coming along. Again, my apologies for the lack of Members; it is no reflection upon you or your evidence, and they will have copies of your evidence to read. This is an ongoing inquiry from our point of view. We thank you so much for your contributions this morning.

Prepared 20th September 2011