Appendix
Mapping
the Path towards Codifying - or Not Codifying - the UK Constitution
ROBERT BLACKBURN,
PhD, LLD, Solicitor
Professor of Constitutional Law
Centre for Political and Constitutional Studies
King's College London
PROGRAMME
OF RESEARCH
Aims
This programme of research has been prepared at the
formal request[6]
of the House of Commons Political and Constitutional Reform Committee
chaired by Graham Allen MP to assist its inquiry, and the policy
debate generally, on the proposal to codify - or not - the UK
constitution. The work been prepared in an impartial way, adopting
a pragmatic approach to the issues involved, and does not seek
to advocate either codification or non-codification. Its purpose
is to inform the inquiry of the issues involved and, in the event
that a government in the future might wish to implement such a
proposal, it seeks to provide a starting point and set of papers
to help facilitate the complex and sensitive issues of substance
and process that would be involved.
Structure
of the Research
The content starts (Part I) by identifying, and giving
a succinct account of, the arguments for and against a written
constitution, prepared in rhetorical manner.
It then (Part II) sets out a series of three
illustrative blueprints, prepared in the belief that a consideration
of detailed alternative models on how a codified constitution
might be designed and drafted will better inform and advance the
debate on the desirability or not of writing down the constitution
into one documentary source. These are -
(1) Constitutional Code - a document sanctioned
by Parliament but without statutory authority, setting out the
essential existing elements and principles of the constitution
and workings of government.
(2) Constitutional Consolidation Act -
a consolidation of existing laws of a constitutional nature in
statute, the common law and parliamentary practice, together with
a codification of essential constitutional conventions.
(3) Written Constitution - a document of basic
law by which the United Kingdom is governed, including the relationship
between the state and its citizens, an amendment procedure, and
elements of reform.
Each of these blueprints is self-contained in
the sense that each could serve as a particular model for codifying
the constitution. Taken together, however, they could be regarded
as three stages or building blocks to go through in the process
of working towards a written constitution of the UK.
The Written Constitution contains a limited
number of substantive reforms to our system of governance, particularly
in those areas where a constitutional problem has arisen in recent
years. These are not individual reforms advocated by this paper
as such, merely offered as potential solutions and an illustration
of an alternative possibility. Producing a coherent constitutional
document of this nature makes it easier to see how different parts
of the political and constitutional structure relate to one another
and, it is hoped, to evaluate ideas and suggestions for future
progression of its component parts.
In the last section (Part III), the issues and
options to be addressed in the preparation, design and implementation
of a codified constitution is considered, including the most appropriate
body to draft the constitution, the need for cross-party co-operation,
and public engagement procedures.
Ancillary
Papers
Related to this work, published separately on-line,
are three ancillary papers: A Literature Review, being
an explanation and discussion of the debate so far on codifying
the UK constitution or adopting a written constitution for the
UK; The Existing Constitution, being a study of the special
characteristics of the UK constitution requiring special attention
in the process of adopting a codified or written constitution;
and a series of twenty-three Case Studies on Constitution Building,
to accompany Part III of the programme of research on The Preparation,
Design and Implementation of a Codified UK Constitution, focussing
in greater depth on specific matters of process and comparative
constitution-building exercises.
Author
Robert Blackburn is Professor of Constitutional Law
at King's College London. He is the author of authoritative works
of legal theory and practice on the constitution, including Constitutional
and Administrative Law (Volume 20), The Crown and Crown
Proceedings (Volume 29) and Parliament (Volume 78)
in Halsbury's Laws of England, and has written or edited
twelve books on political and constitutional affairs, including
The Electoral System in Britain, King and Country,
Parliament: Functions, Practice and Procedure and Constitutional
Reform. He lectures at King's on a number of specialist courses
designed by him on constitutional affairs, among them Advanced
Constitutional Law (LLB), The Theory and Practice of Parliament
(LLM), and The Constitutional History of Britain (MA), and since
2010 has been founding Director of the Centre for Political and
Constitutional Studies.
Acknowledgements
Special thanks are due to Dr Andrew Blick, Research
Fellow to the programme, now Lecturer in Politics and Contemporary
History at King's, who wrote the ancillary papers on A Literature
Review and The Existing Constitution, and provided
assistance throughout; to Philip Povey and Dr Elin Weston who
provided assistance in the preparation of the draft Constitutional
Consolidation Act; and for their encouragement and support, the
Joseph Rowntree Charitable Trust and the Nuffield Foundation.
Members of an advisory group to the Centre met
in a series of four private seminars to consider draft material
for this work, to whom I am indebted for their comments and advice.
They included Professor Vernon Bogdanor, Professor Anthony Bradley,
Professor Ian Cram, Dr Graham Gee, Katie Ghose, Dr Elizabeth Gibson-Morgan,
Richard Gordon QC, Stephen Hockman QC, Professor Sir Francis Jacobs
QC, Professor George Jones, Professor Sir Jeffrey Jowell QC, Professor
Satvinder Juss, Guy Lodge, Lord Kenneth Morgan, Professor Roger
Mortimore, Dr Caroline Morris, Dr Michèle Olivier, Richard
Percival, Professor Lord Raymond Plant, Craig Prescott, Alexandra
Runswick, Roger Smith, Lord Wilf Stevenson, Dr Elin Weston, Professor
Sir Robert Worcester, and as observers David Willis and Nick Hodgson.
I have aimed to be inclusive of earlier work
on this subject, where appropriate. I am grateful to Professors
Vernon Bogdanor and Stefan Vogenauer for permission to reproduce
in the draft Constitutional Code material drawn from the draft
constitution produced during their Oxford course on Enacting
the British Constitution in 2006; and to the Institute for
Public Policy Research (IPPR) for permission to reproduce in the
draft Written Constitution extensive parts of The Constitution
of the United Kingdom, produced by their commission on the
constitution in 1991, of which I was a member.
Robert Blackburn
King's College London
June 2014
6 16September2010. Back
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