Part III
The Preparation, Design and Implementation
of a Codified Constitution
Summary
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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 Review. Back
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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