A new Magna Carta? - Political and Constitutional Reform Contents

Part III

The Preparation, Design and Implementation of a Codified Constitution




The policy issue

At the 2010 general election two of the main political parties, Labour and the Liberal Democrats, expressed their support for a written constitution for the UK and the intention to take steps towards the preparation of such a document. On the Conservative side, the earliest calls for a written constitution came from some of its leading figures, most notably the former party chairman and Lord Chancellor Lord Hailsham in his speeches and writings in the late 1970s. The idea of codifying the constitution - one that has remained famously unwritten since the seismic written settlements in Magna Carta 1215, the Bill of Rights 1689 and the Acts of Union 1707 and 1800 and one which some see as no longer reflecting the society it serves or equipped to deal with modern political conditions - is one that is now firmly on the political agenda for discussion and debate.

Aim of Part III

The case for and against written constitutions in general, and the arguments about a written constitution for the UK in particular, has been considered above (in Part I) and in two ancillary reports to this work, one providing a literature review of the subject;[856] another on the existing constitution and its characteristics.[857] However if the decision were taken to try to introduce a codified constitution, the most challenging aspect to the debate in terms of practical politics is the process that might be adopted in its preparation, design and implementation. This is a complex subject that requires a consideration of a range of different factors, from technicalities of law to issues of political science and social psychology, drawing on the earlier experiences of constitutional engineering both in the UK and abroad. Part III puts to one side consideration of the merits and demerits of codification, and focuses on how it might be achieved if it were deemed a desirable outcome.

Framing the initiative and forms of codification

Any formal initiative to codify the UK constitution will need to come from a future government that has a clear understanding of the issues and problems such a project will entail, and has a clear programme of management and set of solutions to deal with them. The Cabinet Committee that sets in motion the project will need to decide at an early stage precisely what type of written or codified constitution it will be endorsing, for the nature and scope of the document will to a large extent determine the procedures and processes that are best designed for its preparation and successful outcome. In this Part III, the alternative models or types of codified document illustrated in the three draft codified constitutions in Part II are discussed, being firstly, a non-legal constitutional code setting out the essential existing elements and principles of the constitution and workings of government (a non-legal Constitutional Code); secondly, a consolidation of existing laws of a constitutional nature together with a codification of essential constitutional conventions and principles into one Act of Parliament (Constitutional Consolidation Act); and thirdly, a document of basic law by which the country is governed and the relationship between the state and its citizens, with an amendment process and elements of reform (Written Constitution).

The moment for codification

The question of timing any such initiative would be crucial to its success. While too much can be made of the need for some "constitutional moment", yet political events and pressures will play an important role in prioritising the measure, even if a government is ideologically committed to the proposal and it had been mandated at the previous general election. Currently, the critical state of the national economy, and other constitutional issues such as the UK's relations with the European Union, and the forthcoming referendum on Scottish independence, are far greater concerns. Each however, together with unforeseen political crises, has the potential to serve as a catalyst for demands to commit the UK system of government into a new constitutional document.

A willingness to co-operate by the parties

To operate effectively and to endure, a constitution must be embraced across the political parties. For this reason any strategy for codification must address the need for inter-party talks and communication, and await circumstances in which there exists a pre-disposition across the parties to reach agreement. Facilitating a process whereby the political parties might co-operate in what is one of the most adversarial political systems in the world is not easy, but there are clear lessons to be learnt from earlier occasions where party leaders were in agreement on the need for some reform or initiative of a constitutional nature.[858]

Gathering public trust and opinion

The role of public opinion on this subject operates at different levels. While there is evidence that popular support for a written constitution exists,[859] it is less as an electoral issue than as an expression of discontent with the unintelligible nature of the constitution, feeding a sense of alienation from the political process. The parties therefore may view the drawing up of such a document as a means of informing and engaging the public, and in helping reverse the current malaise in public confidence in government and its politicians generally. Deliberative exercises on constitutional affairs, such the proposal for a Constitutional Convention examined by the Committee this year,[860] could play a useful role in further testing opinion on the constitution, and allowing representatives of the parties to engage in discussions with one another as well as with members of the public, representatives of civil society and professional groups.

The Commission or body that prepares the document

A decision on which type of public body is best situated to carry out the work of drafting the codified constitution will be determined by the working practices it will be required to follow, and these in turn will largely depend on the nature of the document being prepared. A minimalist document, such as a non-legal Constitutional Code, would clearly require a less intensive process of consultation and approval than would be the case for an entrenched written constitution. The various options previously used for constitutional reforms in the UK, and ideas drawn from constitution building precedents abroad, are considered for each of the three blueprints. Whichever body might be entrusted with constitutional codification would need to address a number of core drafting issues on length, level of detail and underlying principles, some of which might be set out in the terms of reference given it by the government.

Conclusions and recommendations

Although the primary aim of this programme of research has been to set out the issues and options involved in the preparation, design and implementation of a codified constitution, if a decision were taken by a future government to act on this enterprise, a series of conclusions and recommendations on the most appropriate processes to be adopted is set out in a concluding section.

856   See ancillary paper, A Literature ReviewBack

857   See ancillary paper, The Existing Constitution Back

858   See the examples discussed below including the recent pre-IPSA and post-Leveson talks. Back

859   See the three polls taken in 2009-10 by YouGov, ICM and the Ministry of Justice cited below, p.39. Back

860   House of Commons Political and Constitutional Reform Committee, Do We Need a Constitutional Convention for the UK?, 2012-13, HC 371. Back

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Prepared 10 July 2014