A new Magna Carta? - Political and Constitutional Reform Contents

1 Nature and scope of the work


01  If a future UK government were to consider taking steps to codify the constitution, an initial decision at the same time would need to be made by the Prime Minister and Cabinet on the general nature and scope of the document it was proposing to be drawn up. This is because there are several different schemes of codification that such a document could take, and the options for how best to prepare, design and implement this document will differ significantly from one another.

02  For the purposes of this research, three different models of codification[861] have been identified, illustrative drafts of which are set out in Part II (summarised below), and are now considered in the context of their preparation, design and implementation.

A. Non-legal Constitutional Code

A non-legal code setting out the essential existing elements and principles of the constitution and workings of government

B. Constitutional Consolidation Act

A consolidation of existing laws of a constitutional nature together with a codification of essential constitutional conventions and principles into one Act of Parliament

C. Written Constitution

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

03  All three models would set out the framework within which the different branches of government and public administration operated. The common purpose of all would be clarity and accessibility for everyone on what the rules and practices of the constitution are. Each would provide an "organisation chart" for the structure of UK government and its relationship with citizens, describing the powers of the core political institutions, and the conditions upon which they are exercised and controlled.

04  Models A and B would not represent any substantive change in the law and working of the constitution. The former would simply be an authoritative guide on constitutional practice, particularly in those areas where it is useful to have unwritten conventions more clearly set out for public understanding. It could be seen as an evolutionary development of the Cabinet Manual published in 2010,[862] changing its status from an internal to a public document, making its contents more comprehensive in terms of constitutional subject matter, and being submitted for formal approval by both Houses of Parliament.

05  Model B would be a consolidating statute, re-enacting the major elements of existing statutory law on the constitution, and additionally incorporating other relevant regulation such as some fundamental parliamentary standing orders, and codifying some core conventions. The legal status and means of enforcing this document would remain as at present, depending on the nature of the regulation in question. It would no doubt acquire a special status in matters of judicial interpretation, as a constitutional statute of great importance, whose provisions could only be changed by a later Act of Parliament expressly stating that it was repealing or amending certain sections.[863] As a document, it could be re-issued by the Stationary Office from time to time in its current state.

06  Model C, containing a special status in law and amendment procedure, would be consistent with the type of written constitution almost universally adopted in the other western democracies.[864] Its substance could be similar to that of model B but the text would require re-writing to redraft some of the more outdated statutes of constitutional law in modern and coherent fashion. It would also provide the opportunity, if so wished, to consider issues of modernisation and reform, particularly where a consensus exists on the need for change but a resolution is still pending (such as over the future of the House of Lords).[865]

07  Since a non-legal code (model A) or a consolidation of existing law and practice (model B) would not represent any substantive change in the workings of government or UK constitutional law, a less rigorous process of preparation would be required than for a documentary constitution that afforded itself a higher status in law and special amendment procedure (model C) together with any other novel elements taking place at the same time.

08  In what follows, consideration is given to the questions and options that would arise in the preparation, design and implementation of a codified constitution for the UK. These concern the initiation of a policy to codify the constitution; the issues in determining the content of the document; the type of commission or other body that would be best placed to draft the document; how the necessary cross-party negotiations and agreement might be achieved prior to its preparation; and what level and type of public involvement should form part of the process.

861   On terminology, references to a "codified" or "written" constitution are essentially interchangeable expressions. There has been some debate in the UK about the best short-hand expression to describe the nature of the existing UK constitution, many pointing out that to say it is "unwritten" is strictly speaking misleading as many constitutional rules are to be found written down in Acts of Parliament or administrative codes: see the House of Lords Constitution Committee, Reviewing the Constitution: Terms of Reference and Method of Working, 2001-02, HL 11, paras. 20-21. However, comparative constitutional studies still most commonly use the terms written/unwritten to classify and distinguish between states with and without a documentary constitution. For the purposes of this Report model C has been referred to as a "Written Constitution" to reflect it being most closely typical in nature to most documentary constitutions around the world. Back

862   Cabinet Office, 2010, and see House of Commons Political and Constitutional Reform Committee, Constitutional Implications of the Cabinet Manual, 2010-12, HC 734. Back

863   See Francis Bennion, Statutory Interpretation (London: Butterworths, 5th ed. 2007). Back

864   For the text of comparative constitutions see International Encyclopaedia of Laws: Constitutional Law (ed. Andre Alen, Kluwer Law International). Back

865   This might include the constitution of the House of Lords, the inclusion of a UK bill of rights, a codification of central-local government relations, the state of the Union in the event of Scottish independence, and settlement of the UK's position in Europe. Back

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Prepared 10 July 2014