A new Magna Carta? - Political and Constitutional Reform Contents


1 CONSTITUTIONAL CODE

An illustrative blueprint (first of three)

A document sanctioned by Parliament but without statutory authority, setting out the essential existing elements and principles of the constitution and workings of government.

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The United Kingdom, Nationality, and Citizenship

1  The United Kingdom consists of the regions of England, Scotland, Wales and Northern Ireland. In no circumstances shall any of the four regions cease to be a part of the United Kingdom without the consent of a majority of registered voters in that region voting in a poll.

2  Nationality is possessed by (a) United Kingdom citizens, except for those from the Channel Islands and the Isle of Man; (b) United Kingdom citizens with the right of abode in the country; and (c) citizens of the United Kingdom's Overseas Territories.

3  Citizenship of the United Kingdom is acquired by birth, adoption, descent, registration or naturalisation, or is conferred by statute.

4    A Minister may by order deprive a person of their citizenship acquired by registration or naturalisation on the grounds that it was obtained by fraud, false representation or concealment of any material fact; but no such person may be deprived of their citizenship unless the Minister is satisfied that it is not conducive to the public good that that person should continue to be a citizen of the United Kingdom.

The Crown and Head of State

5  The United Kingdom is a parliamentary democracy, with an hereditary constitutional Monarchy serving as its Head of State, who is Queen Elizabeth II.

6  The Monarch is that person who is the descendant of Sophia Electress of Hanover next in line to the throne as provided and regulated by the Act of Settlement 1700, extended to Scotland in 1707 and Northern Ireland in 1801 by Acts of Union, amended by the Succession to the Crown Act 2013. Any alteration in succession to the throne requires the consent of the Parliaments of the Commonwealth realms as well as the Parliament of the United Kingdom.

7  The Monarch as Head of State is the ceremonial head of the executive government, the fount of justice, the commander-in-chief of the armed forces, and the Supreme Governor of the Church of England.

8  The Monarch as Head of State presides at meetings of the Privy Council whose members, being citizens of the United Kingdom, other Commonwealth country, or the Republic of Ireland, are appointed by the monarch on ministerial advice. Ministers are responsible to Parliament for decisions and orders made by the Privy Council.

9  The public acts of the Queen are performed upon the advice of ministers or according to established convention. The Queen assents to legislation unless advised to the contrary by ministers.

10  The acts of the Head of State are not reviewable by the courts. As Monarch, the Queen is immune from suit and legal process in any civil cause in respect of acts and omissions in his or her private capacity; and is immune from criminal proceedings in respect of acts and omissions in his or her private or official capacity.

11  The Queen, the Royal Household and other members of the Royal Family, are funded through a Sovereign Grant paid by the Treasury.

12  All persons in the service of the Crown are required to swear or affirm an Oath of Allegiance to the Queen and her heirs and successors according to law.

13  Statutory provision is made for the appointment of a Regent in case of the minority, incapacity or non-availability of the Head of State.

Parliamentary Supremacy

14  The supreme legislative power in the state is vested in the Parliament of the United Kingdom, comprising the Queen, the House of Lords, and the House of Commons.

The House of Commons

15  Members of the House of Commons are directly elected in free, equal and secret elections by universal suffrage. The constituencies within which Members are elected are regularly reviewed by boundary commissions chaired by the Speaker of the House of Commons. The revision of constituency boundaries requires parliamentary approval before it can be given statutory effect.

16  The universal franchise extends to all adult citizens of the United Kingdom, the Commonwealth, and the Republic of Ireland, not being persons detained in a penal institution, or under sentence of disqualification for a corrupt or illegal practice, and being persons registered in a parliamentary constituency on the day of the poll. Peers entitled to sit in the House of Lords shall not be entitled to vote.

17  Details of the electoral process and its administration are set out in Acts of Parliament.

18  Any person is eligible to become a Member of the House of Commons, unless they are legally disqualified. Persons disqualified include (a) aliens; (b) those under the qualifying age; (c) bankrupts; (d) persons convicted of treason; (e) persons currently detained in a penal institution for more than one year; (f) persons convicted of illegal election practices; (g) holders of certain judicial offices; (h) civil servants; (i) members of the regular armed forces; (j) members of any police force maintained by a police authority; (k) ambassadors and High Commissioners; (l) boundary commissioners, electoral commissioners and electoral registration officers; (m) members of a foreign legislature outside the Commonwealth or the Republic of Ireland; (n) holders of other public offices defined by statute, and (o) members of the House of Lords.

19  An Electoral Commission of the UK is appointed by the Head of State on the advice of the Prime Minister, with the agreement of the Speaker, and following consultations with the leaders of all parties represented in the House of Commons. The Commission is responsible for the supervision of elections and referendums, the registration of political parties, and the determination of those who are permitted to participate in a referendum or make donations to political parties.

20  Political parties wishing to nominate candidates for elections are required to register with the Electoral Commission and to maintain accounts in accordance with regulations laid down by the commission.

21  The chief officer of the House of Commons is the Speaker, who is elected by the House of Commons at the beginning of each new Parliament or on the death or retirement of the previous office-holder. The Speaker does not belong to any political party and votes only in the case of a tie when the Speaker votes for further discussion where that is possible. The Speaker represents and presides over the House, enforces the rules which govern its conduct, and protects the rights and privileges of the house. The Speaker has full authority to enforce the rules of the house, and powers to regulate the conduct of debate. In cases of grave and continuous disorder, the Speaker may adjourn or suspend the sitting. The Speaker may order a Member of Parliament who breaks the rules of the House to leave the Chamber, initiate a short suspension or put the matter to a vote.

22  Members of the House of Commons are remunerated from public funds. The level of their salary and scheme of allowances are independently determined by the Independent Parliamentary Standards Authority.

23  Members of the House of Commons are required to observe a Code of Conduct prepared by the House and to register pecuniary interests and other benefits in a Register of Interests that is supervised by the Parliamentary Commissioner for Standards. The costs, expenses, pay and pensions of Members and their staff is overseen by the Independent Parliamentary Standards Authority.

24   Political parties represented in the House of Commons but which do not support the Government constitute the opposition. The formal position of Leader of the Opposition is that person who is the leader of the largest of these parties, whom together with holders of certain other parliamentary posts receives a salary from public funds.

General Elections

25  The Queen as Head of State summons Parliament to meet after each general election by Royal Proclamation.

26   A general election is held the first Thursday in May in the fifth calendar year following that in which the polling day for the previous parliamentary election fell under the terms of the Fixed-term Parliaments Act 2011.

27   An early general election may be held if either (a) a resolution "that there shall be an early Parliamentary general election" is passed in the House of Commons by two-thirds of the membership of the House (including vacant seats), or (b) the Government is defeated in the House of Commons on a motion stating that "this House has no confidence in Her Majesty's Government" and after a period of fourteen days no new Government has been formed and confirmed by a confidence motion in the Commons stating that "this House has confidence in Her Majesty's Government".

House of Lords Membership

28   The House of Lords comprises the following categories:

(a) Life peers under the Life Peerages Act, 1958. Life peers in this category are appointed by the Head of State on the advice of the Prime Minister. An independent appointments committee recommends non-party life peerages to the Prime Minister. The Prime Minister may also recommend the appointment of non-party peers. Party peerages are recommended to the Prime Minister by party leaders, and vetted by the appointments commission to ensure propriety.

(b) Ninety-two hereditary peers, as provided by the House of Lords Act 1999.

(c) Lords Spiritual, who comprise the archbishops of Canterbury and York and the Bishops of London, Durham and Winchester, together with 21 other Diocesan Bishops by seniority of appointment. Lords Spiritual remain members solely during the tenure of their sees.

29   The chief officer of the House of Lords is the Lord Speaker, who is elected by the members of the House of Lords every five years or on the death, retirement or resignation of the previous Lord Speaker. The Lord Speaker does not belong to any political party, and votes only in the case of a tie when the Lord Speaker votes for further discussion where that is possible. No Lord Speaker serves for more than two five-year terms. The Lord Speaker presides over the House, offers advice on procedure outside the Chamber, acts as an ambassador for the work of the Lords at home and abroad, and participates in certain ceremonial duties, including the State Opening of Parliament. The Lord Speaker has no power to act in the House nor to discipline members without the consent of the House.

30   Members of the House of Lords are required to observe the principles in the Code of Conduct. They are required to register various pecuniary interests and other benefits in a Register of Interests.

Powers of the Two Houses

31  The House of Commons alone may propose alterations in financial charges on public funds, taxes or other charges.

32   A public bill, certified by the Speaker of the House of Commons as a Money Bill, that has been passed by the House of Commons, but has not been passed by the House of Lords without amendment within one month of the House of Lords having received it, is, nevertheless, unless the House of Commons directs otherwise, presented to the Monarch for Royal Assent.

33   Any other public bill which originates and has been passed by the House of Commons in two successive sessions and which, having been sent to the House of Lords at least one month before the end of the session, has been rejected by the House of Lords in each of these sessions, is, on its rejection for the second time by the House of Lords, unless the House of Commons directs otherwise, nevertheless presented to the Monarch for Royal Assent; provided that at least one year has elapsed between the second reading of the bill in the House of Commons in the first session and its passing the Commons in the second session.

34  The provisions of paragraph 33 do not apply to a bill to extend the maximum duration of parliament beyond five years, nor to any statutory instrument, for which the consent of both Houses is needed.

Privileges of Parliament

35  The freedom of speech, and debates or proceedings in parliament are not impeached or questioned outside Parliament.

36   The House of Commons has the power to expel a Member whom it deems to be unfit to continue in that capacity, and also to adjudicate upon cases of disqualification of members not covered by an act of parliament.

37   Each House has the right to control its own proceedings and to regulate its internal affairs and whatever takes place within its walls.

38   Each House has the inherent power to punish for breach of parliamentary privilege.

European Union Law

39  Legislative measures of the European Union that are directly effective under the European Communities Act 1972 have legal effect in the United Kingdom.

40  Obligations of the United Kingdom arising under European Union law may be implemented by Order in Council or by statutory instrument (subject to schedule 2 of the European Communities Act 1972).

41  United Kingdom agreement to changes to the Treaty on European Union and the Treaty on the Functioning of the European Union, as well as other defined transfers of power or competence from United Kingdom to European Union level, is subject to the consent of the United Kingdom population through a majority of those voting in a referendum (in accordance with the European Union Act 2011).

Executive Power

42   The executive power of the United Kingdom is vested in the Crown, but all executive acts are performed by Ministers in the Queen's name.

43   The executive power includes the inherent common law authority to -

(i) appoint and remove officers of the armed forces, command the armed forces, recognise foreign jurisdictions, exchange envoys, make appointments not otherwise provided for, grant charters, and grant honours and grant mercy;

(ii) declare war or commit the armed forces to enter into armed conflict abroad, provided that Government must, before such action (or as soon as practicable thereafter), put forward a motion for debate and vote in the House of Commons, and comply with its decision, subject to exceptional circumstances of necessity requiring public secrecy or extreme urgency; and

(iii) to sign and ratify treaties, subject to parliamentary approval procedures in accordance with the Constitutional Reform and Governance Act 2010.

44   All executive powers are exercised subject to the legislation, if any, and principles of the common law governing the circumstance and mode of exercise of such powers.

Prime Minister, Cabinet and Ministers

45  The Government consists of the Prime Minister, the Cabinet and other Ministers. The maximum number of holders of ministerial office entitled to sit and vote in the House of Commons at any one time is set at ninety-five by the House of Commons Disqualification Act 1975.

46  The Queen appoints as Prime Minister the leader of the party with an overall majority in the House of Commons. Where following a General Election there is no overall majority for one party, the incumbent Prime Minister has the first opportunity to remain in office and form an administration, but if he is unable to do so (or is defeated on the Address at the meeting of Parliament) then the leader of the largest opposition party is appointed Prime Minister.

47  All Ministers besides the Prime Minister are appointed and removed, and have their individual responsibilities determined, by the Queen acting upon the Prime Minister's advice.

48  All Ministers must be, or within three months of their appointment become, members of the House of Lords or House of Commons.

49  The Prime Minister and all ministers of the Treasury must be or become members of the House of Commons.

50  The Prime Minister, the heads of the executive departments and such other ministers as the Prime Minister determines, comprise a Cabinet, which is summoned and chaired by the Prime Minister.

51   The Cabinet is collectively responsible for its decisions. It provides a forum in which all those Cabinet members who wish to do so can have a say on important government policy decisions.

52  All members of the Cabinet, and all government ministers, are subsequently bound by decisions that are made, and required to maintain a united public front. If unable publicly to defend or refrain from criticising Cabinet decisions, ministers are required to resign.

53  The decisions of Cabinet committees are binding in the same way as if they had were made by full Cabinet. Disputes within Cabinet Committees may be referred to the full Cabinet for resolution.

54  In special circumstances, there may be an agreement confirmed by the Prime Minister to opt out of the discipline of collective responsibility over particular issues.

Ministerial Conduct

55   The ethical standards required of ministers are laid out in a Ministerial Code formulated and published by the Prime Minister and Cabinet Office.

56   The Prime Minister, with the advice of the Cabinet Secretary, is responsible for enforcing the Ministerial Code, and is also bound by it. The Prime Minister may refer particular allegations of violations of the Code to the Independent Adviser on Ministers' Interests.

Relations between Government and Parliament

57   Ministers are always entitled to be heard in the House of Parliament of which they are members. A Minister who has resigned or been removed is entitled to make an address to the House of which he or she is a member.

58   The Government must present receipts of revenue and estimates of expenditure to the House of Commons at least once in every year.

59   Every Minister who is a member of the House of Commons is personally accountable to the House for all matters within his or her portfolio. Ministers may not deceive or knowingly mislead Parliament or the public.

The Civil Service

60   A civil servant is a servant of the Crown employed in a civil capacity who is paid wholly and directly from monies voted by Parliament.

61   Civil servants are recruited on the basis of merit and promoted on the basis of ability. They are politically impartial at all times.

62   There is a Civil Service Commission, appointed in accordance with the Constitutional Reform and Governance Act 2010, and independent of ministers, to ensure that selection to the civil service is based on the principle of fair and open competition, and to hear appeals under the civil service code.

63   The Civil Service supports Ministers individually and collectively in formulating policy and in administering public services for which the Government is responsible. Civil servants give honest and impartial advice to Ministers and make all information relevant to a decision available to Ministers. They may not deceive or knowingly mislead Ministers, Parliament or the public. They must conduct themselves in such a way as to deserve and retain the confidence of Ministers and to be able to establish the same relationship with those whom they may be required to serve in some future administration.

64   The ethical standards required of civil servants are provided for in a Civil Service Code as required by the Constitutional Reform and Governance Act 2010.

65   Ministers uphold the political impartiality of the Civil Service. They may not ask civil servants to act in any way that would conflict with the Civil Service Code.

66  The Prime Minister holds the portfolio of Minister of the Civil Service and has responsibility for the management of the Civil Service.

The Police

67  There is a directly elected Police and Crime Commissioner for designated regional areas in England and Wales, except Greater London where there is a Major's Office for Policing and Crime; there is a Scottish Police Authority in Scotland; and there is a Northern Ireland Policing Board in Northern Ireland. It is the duty of the Police and Crime Commissioners and police authorities to secure the maintenance of an efficient and effective police force for its area.

The Armed Forces

68  The armed forces of the UK comprise the Royal Navy, the Army, and the Royal Air Force. Officers in the armed forces are commissioned in the name of the Crown, and may be dismissed at the pleasure of the Crown, but they may not resign their commission without leave. Under the Bill of Rights 1689, there shall be no standing army in time of peace without the consent of Parliament.

The Intelligence and Security Agencies

69  The intelligence and security agencies are required to protect national security from, in particular, espionage, sabotage and terrorism. Their powers are laid down by statute and they are accountable to responsible Ministers. A statutory Intelligence and Security Committee of Parliament is responsible for the oversight of the policies, expenditure, administration and operations of the agencies.

Public Inquiries

70  An Act of Parliament provides for the establishment and conduct of public inquiries into matters of public concern.

Emergency Powers

71  In circumstances of an emergency threatening serious damage to human welfare, the environment or security, the Head of State acting on the advice of the Prime Minister may proclaim that a state of emergency exists and issue secondary legislation to address the emergency with parliamentary approval under the Civil Contingencies Act 2004. Emergency regulations must be proportionate to the circumstances they address.

Devolution

72   There is a Scottish Parliament and devolved structure of government in Scotland provided for by the Scotland Act 1998, and Northern Ireland Assembly and devolved structure of government in Northern Ireland provided for by the Northern Ireland Act 1998, and a National Assembly for Wales and devolved structure of government in Wales provided for by the Government of Wales Act 2006.

73   The establishment of a directly elected, territorially based body enjoying legislative or executive powers devolved from Parliament requires a referendum of electors in the area concerned.

Local Government

74   Acts of Parliament provide for directly elected local authorities covering every area of the United Kingdom. Local authorities have powers to promote the economic, social and environmental well-being of the areas that they represent, and may raise taxes under the authority of national or regional legislation.

75  In England and Wales, local authorities have a general power of competence to do anything that individuals generally may do (under the Localism Act 2011).

76  The boundaries of a local government area are subject to review by the regional Local Government Boundary Commissions.

77   The executive of a local authority is either a cabinet or a directly elected Mayor. Before the office of directly elected Mayor is instituted in a local government, a referendum is held in that local government area to ascertain the view of its electorate, and five per cent of the registered electorate in that area can require by petition that such a referendum be held (under the Local Government Act 2000).

The Judiciary and its Independence

78  The judiciary is independent of the other branches of government. By statute the Lord Chancellor and other Ministers are required to uphold the principle of judicial independence, which includes a duty to ensure the support necessary to enable them to exercise their functions.

79    The judicial power is exercised through the separate court systems in England and Wales, Scotland, and Northern Ireland, all of which are subject to final appeal in the Supreme Court of the United Kingdom (except for criminal appeals in Scotland).

80  The establishment of extraordinary courts requires an Act of Parliament.

81  The Lord Chief Justice is the Head of the Judiciary in England and Wales, the Lord President of the Court of Session is Head of the Judiciary in Scotland, and the Lord Chief Justice of Northern Ireland is Head of the Judiciary in Northern Ireland.

82     Judges are appointed by the Queen on ministerial advice, as follows: (a) Justices of the Supreme Court are selected by a Selection Committee convened by the Lord Chancellor giving a nomination, and the Lord Chancellor if he approves giving the name to the Prime Minister for his advice to the Queen; (b) in Scotland the Lord President of the Court of Session and the Lord Justice Clerk are nominated by the First Minister of Scotland, and the Prime Minister then advises the Queen to appoint this person; (c) other judges are selected by the Judicial Appointments Commission for England and Wales, Judicial Appointments Board for Scotland, and Northern Ireland Judicial Appointments Commission, with the Lord Chancellor, or in the case of Scotland the First Minister of Scotland, giving the recommendation to the Queen.

83  Judges in the Supreme Court, Court of Appeal, and High Court, hold office during good behaviour, but may be removed on the Address of both Houses of Parliament. Circuit and district judges may be removed by the Lord Chancellor on grounds of incapacity or misbehaviour. Lay magistrates may be removed at the discretion of the Lord Chancellor at any time.

84  Judicial salaries may not reduced by the Crown and increases are determined by an independent pay review body.

85    The sittings of all courts are public, except in circumstances provided for by Act of Parliament, and judgments are pronounced at a public sitting.

Principles of Judicial Review

86     So far as it is possible to do so, legislation and all other rules of law are read and given effect in a way that is compatible with the principle of the rule of law.

87   If a court is satisfied that a provision of a statute is incompatible with a Convention right incorporated into United Kingdom law by the Human Rights Act 1998, it may make a Declaration of Incompatibility under the terms of the Act and a Minister may present a Remedial Order for the approval of the two Houses of Parliament.

88   So far as it is possible to do so, legislation and all other rules of law are read and given effect in a way that is compatible with the law of the European Union and a Convention right incorporated into United Kingdom law by the Human Rights Act 1998. The courts do not give effect to any rule of law that is incompatible with directly effective European Union law.

89   Subordinate legislation and administrative action are subject to judicial review on grounds of legality, procedural fairness, proportionality, rationality, and conformity with the Convention rights incorporated into United Kingdom law by the Human Rights Act 1998.

Civil and Political Rights

90  The United Kingdom government guarantees to everyone within its jurisdiction the protection of the following rights and freedoms as defined and delineated by the European Convention on Human Rights, and incorporated into national law by the Human Rights Act 1998, entitled -

Right to Life

Prohibition of Torture

Prohibition of Slavery and Forced Labour

Right to Liberty and Security

Right to a Fair Trial

No Punishment without Law

Right to Respect for Private and Family Life

Freedom of Thought, Conscience and Religion

Freedom of Expression

Freedom of Assembly and Association

Right to Marry

Right to an Effective Remedy

Prohibition of Discrimination

Protection of Property

Right to Education

Right to Free Elections

Social and Economic Welfare

91  The government provides social and economic welfare for all citizens of the United Kingdom including social security (unemployment benefit and old age pension), free health care, a pollution-free environment, and access to clean water and essential public utilities.

Status, Amendment and Publication

92  This Code has no status in law, and may not be cited or relied upon in any legal proceedings before the courts.

93  The laws, conventions, and rules of the constitution change from time to time in the customary manner; that is, by way of (a) Act of Parliament, (b) judicial decision-making in the development of the principles of the common law or the interpretation of statutes, (c) resolutions of each of the Houses of Parliament as affects their internal proceedings, and (d) the evolution, emergence or desuetude of a convention.

94  A revised draft edition of this Code is prepared by the Cabinet Office within thirty days of every General Election, and submitted to each House of Parliament for scrutiny and report by their Select Committee with responsibility for constitutional affairs. Within thirty days of receipt of the Select Committee reports, a Minister will lay the draft Code, with such revisions as it thought necessary, before each House of Parliament for approval.

95  Within fourteen days of a new edition of the Code being approved by both Houses of Parliament, the Code will be printed and published by the Stationary Office as a Command Paper.


 
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© Parliamentary copyright 2014
Prepared 10 July 2014