1 Nature and scope of the work
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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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