2 The initiative for codifying the constitution |
The Government's initiative
09 In the UK system of government, the initiative
behind any successful constitutional innovation virtually always
must come from the Prime Minister and Cabinet.
This would be true in the implementation of any of the three models
of codification described above. A non-legal constitutional code
would in essence be a declaration and public commitment by the
government to abide by its provisions, similar to the Ministerial
Code. So far as models B and C are concerned, any major legislation
on the constitution virtually always comes in the form of a government
Bill, rather than from backbench private Member's bill. This is
a practice simply reflecting political reality, which is that
the government controls the legislative timetable of the House
of Commons, will have a special interest in changes to the rules
by which it operates, and has a working majority in the House
to support its proposals and block those which lack its endorsement.
10 This is not to say that external pressures
on the government will not have an important part to play in setting
the government's agenda. The development of any particular constitutional
policy of the party (or parties) in government, especially if
it is of a major importance, is likely to have had a long gestation
period. The earliest idea behind the proposal may have originated
in academe, a policy think-tank, or a speech by a well-known politician
or commentator. It may then be taken up on the backbenches of
the House of Commons and House of Lords in motions for parliamentary
debate or private Members' bills, and in one or more inquiries
conducted by relevant select committees.
11 Parliamentary, media and other forms of public
opinion have an important role to play in raising the profile
of any constitutional proposal. Events may generate the necessary
sense of urgency to deal with a particular political or constitutional
problem. This was true, for example, in the government initiative
behind the Parliamentary Standards Act 2009 following the public
outcry over parliamentary expenses, and the current press standards
reforms following the Leveson inquiry and press hacking scandal
in the past two years.
Political interest in codifying
12 The idea of codifying the constitution has
steadily gathered momentum in political circles over the past
forty or so years.
It first came to prominence among Conservatives in 1976 when the
former party chairman and Lord Chancellor Lord Hailsham gave a
high profile televised lecture entitled "Elective Dictatorship"
arguing that the unwritten constitution had outlived its usefulness,
contained too few checks and balances, and needed replacing by
a written constitution. During 1980s the Liberal Democrats came
to adopt the proposal as its official party policy that continues
to this day.
13 On the Labour side, during the 1990s several
Labour backbenchers were publicly advocating some form of written
constitution, leading up to John Smith's leadership of the party
in 1992-94 when he publicly spoke of the need for a new constitution
for a new century. In 2009 the Labour Prime Minister Gordon Brown
gave his support for a written constitution in a statement on
constitutional renewal in the House of Commons, and the party's
election manifesto in 2010 promised to "set up an All Party
Commission to chart a course to a Written Constitution".
14 There is therefore a considerable level of
support across the political parties on the desirability of codifying
the constitution. This is likely to remain the official party
policies of Labour and the Liberal Democrats at the forthcoming
general election in 2015. Though this is not a policy or principle
espoused by the Conservative leadership, yet there is a high level
of interest among Conservative members for related constitutional
reforms, particularly ones that better express the UK's national
identity such as a Bill of Rights to replace the Human Rights
Act and a delineation of the UK's membership of Europe. The idea
of a codified constitution is neither Left nor Right in terms
of social or political ideology. Indeed, it can be viewed alternatively
as a progressive reform of modernisation on the one hand, or a
conservative measure for consolidating British values and the
status quo on the other.
The need for strong leadership
15 Once the Cabinet agrees to take forward a
constitutional innovation, it would seem as a matter of historical
observation that the greater the importance of the measure, the
greater the need for strong leadership by the Prime Minister personally
(or the Cabinet minister responsible with the Prime Minister's
active support) to pilot the measure through to implementation.
16 However this most certainly does not mean
that the measure should be drawn up and implemented in a high-handed
manner, and driven through Parliament in the teeth of opposition.
Such a process for codifying the constitution would be deeply
counter-productive. There is a strong expectation that any constitutional
innovation should be based on broad public and cross-party consultation
and, so far as possible, common agreement, because it affects
the rules of the political game by which all parties abide.
If a constitutional changes or innovation is to endure beyond
the lifetime of a particular government, it must have the backing,
or at least acquiescence, of the main political parties.
17 What would be required in terms of political
leadership is considerable managerial, personal and tactical skills
to facilitate the necessary cross-party negotiations and secure
broad agreement. This is so because, whatever the ostensible levels
of cross-party support, the proposal for a codified constitution
of any nature would be bound to arouse some strong reactions and
dissent within Parliament, and is certain to raise issues of controversy
and disagreement. 
This would be especially so with respect to a written constitution
introducing any innovation or novelties, even if only in the formulation
of a special amendment process (model C).
Is a constitutional moment
18 It is commonly said that written constitutions
around the world only ever come into existence in response to
some revolutionary event or national independence - a "constitutional
moment", as this is usually termed. The inference is, therefore,
that without any such convulsion, the UK will not act to put its
constitutional arrangements into a codified or written documentary
19 Hopefully a traumatic event of such magnitude
will never occur in the UK. However, it is certainly conceivable
that a catalyst of lesser proportions, coming against a backdrop
of growing cross-party interest in the idea of codifying the constitution,
might stimulate action by a future government. It is difficult
to forecast what such an event might be, and of what nature (economic,
political, environmental or psychological), but it could include
a dramatic worsening of the UK or Europe's financial crisis,
Scottish independence, withdrawal from the EU, a change in royal
Head of State, or a combination of several factors arising simultaneously.
20 In terms of popular opinion there is a low
public salience of constitutional issues generally.
This is unlike many other countries such as the USA where the
constitution is a matter of great pride, viewed as a source of
protection and liberty. This phenomenon is largely a product of
the way in which the British state educates its citizens today,
with little of no constitutional history from Magna Carta onwards
in the compulsory school curriculum, and of course the lack of
a written constitution itself renders the existence, content and
very concept of the UK constitution inaccessible and unintelligible
to most people.
21 As is discussed below, opinion polling shows
consistent support in principle for codifying the constitution.
However, the depth of its concern or priority as a government
initiative is low in comparison to other matters of public policy,
especially on improvements in health care, education and the economy.
It would seem there are few votes to be won by the parties by
offering in their election manifestos to codify the constitution.
However none of this means that people lack an interest in political
affairs, or that most people do not have views on the workings
of the system of government and questions of citizenship. The
areas that provoke the strongest feelings are the credibility
of their politicians, standards in the public services (especially
health and education), and the UK's position in the world (in
other words, international relations, questions of migration,
and the UK's relationship with Europe).
22 If there is little prospect of popular pressure
driving the political parties to act on codifying the constitution,
nonetheless there is deep interest in improving the quality of
government and making it more responsive to public concerns. The
inclusive work of a constitutional convention taking place prior
to any government initiative, or a process of deliberative public
engagement undertaken by whatever public body was set up by the
government to prepare the draft of a codified constitution, might
serve to galvanise a higher interest in the subject, not least
from media discussion and coverage of the issues, concentrating
on their everyday relevance to citizens.
Engaging the judiciary
23 An important component in the early stages
of any government initiative for a codified constitution of a
legal nature (models B and C) will be to involve and hold talks
with the senior judiciary. The key judicial office holders today
are the Lord Chief Justice in England and Wales, the Lord President
of the Court in Session in Scotland, and the Lord Chief Justice
of Northern Ireland, together with the President of the Supreme
Court of the UK. In England and Wales, the Lord Chief Justice
is head of the judiciary and, since the termination of the judicial
functions of the Lord Chancellor under the Constitutional Reform
Act 2005, is the pivotal figure in representing judicial opinion.
24 The Supreme Court judges headed by its President
already serve as the final court of appeal across the three UK
legal systems in cases of a constitutional nature (such as jurisdictional
disputes between the UK and regional governments under the devolution
legislation, or in applying the Human Rights Act), and in the
event that an written constitution was enacted with a fundamental
status in law, they would be entrusted with upholding its provisions.
The failure of the Cabinet Office to consult the judiciary prior
to the government's announcement of intent to abolish the office
of Lord Chancellor in 2003 is now accepted to have been a serious
in their implementation of policy, needlessly held up the process
of reform by creating a major public controversy and disquiet
at the high-handed methods of the executive.
25 In special circumstances, the Lord Chief Justice
(or his counter-parts in Scotland and Northern Ireland) has the
statutory authority to make representations directly to Parliament.
Under section 5 of the Constitutional Reform Act 2005, he "may
lay before Parliament written representations on matters that
appear to him to be matters of importance relating to the judiciary,
or otherwise to the administration of justice, in that part of
the United Kingdom."
However, in practice this is limited to extreme situations of
some conflict of opinion arising, and is of limited use in facilitating
dialogue between the judges and politicians.
26 The previous Lord Chief Justice, Lord Judge,
has told the House of Lords Constitution Committee
that, unlike the situation before 2005, when the Lord Chancellor
was head of the judiciary and could represent judicial opinion
regularly at the highest level of government, today there is nobody
qualified to offer advice to Cabinet on how a particular proposal
may impact on the judiciary. Furthermore, now that Justice of
the Supreme Court (formerly Law Lords) are no longer members of
the House of Lords, neither may they express advice and judicial
opinion directly to Parliament. A consequence of the Constitutional
Reform Act changes, therefore, has been to isolate the judiciary
from the ordinary processes of law reform. In his oral evidence
Lord Judge gave some examples of policy decisions in government
where judicial advice of the practical consequences were not taken
into account, including cuts in legal aid and restrictions in
the public funding of QCs that had resulted in longer trials and
a greater net public expense.
27 There is no reason to suppose that the senior
judiciary and justices of the Supreme Court would oppose or feel
uncomfortable at the prospect of applying a documentary constitution,
for (as stated above) the court already has experience of applying
a higher nature of constitutional law in supervising the devolution
arrangements and serving as final court of appeal under the terms
of some Commonwealth constitutions. The preparation and passage
of the Human Rights Act during 1997-98, conferring new powers
of judicial review upon the judiciary, worked particularly smoothly,
supported by an easy dialogue between ministers, parliamentarians
and the judiciary due to the former position of the Lord Chancellor
in Cabinet (and playing a pre-eminent part in the government's
constitutional reform programme) and the former Law Lords able
to participate in parliamentary debate.
28 New forms of judicial consultation and dialogue
will therefore need to be developed to ensure that the legal and
judicial implications of codifying the constitution have been
fully taken into account in formulating the government's initiative.
Some implementation issues might be discussed at the same time,
such as an education programme across the senior courts on the
implications of constitutional review (as preceded the entry into
force of the Human Rights Act in 2000, two years after its enactment),
and the need to make changes to the terms of the judicial oath
of office under the new constitutional arrangements.
29 The immediate prospects for a government acting
on this issue, then, rest heavily on the ideological commitment
of party leaders, unless some unforeseen catalyst or crisis raises
it into an electoral issue. The amount of government and parliamentary
time and effort involved in preparing and implementing a codified
constitution, particularly if it is of the nature described as
models B and C above, would be considerable, and could easily
be seen as an unnecessary distraction from more urgent business
of government. If there were steady political momentum behind
the proposal, however, the most likely scenario over the next
few years would be for the party or parties in government to set
up one or more forms of inquiry into the subject, and an independent
constitutional convention be established as a means of expressing
solidarity around the policy and clarifying the general principles
of common agreement on the form and content of the code.
866 There have been a few notable exceptions such as
the private members bill of the late Norman St John Stevas that
became the National Audit Act 1983.
National Audit Act 1983 Back
See Robert Blackburn and Andrew Kennon, Parliament: Functions,
Practice and Procedures (London: Sweet & Maxwell, 2nd
ed., 2003), chapter 7. Back
For a discussion of party political attitudes towards the constitution
see Robert Blackburn (ed), Case Studies on Constitution Building
(2014) (hereafter 'Blackburn, Case Studies') ancillary
to this work, W and X; and Literature Review. Back
On the passage of the major constitutional legislation in the
20th century, see Philip Norton (ed), A Century of Constitutional
Reform (Parliamentary History, Wiley-Blackwell, 2011). Back
R. Blackburn and R. Plant (eds), Constitutional Reform
(London: Longman, 1999), pp.213ff. Back
Methods to facilitate cross-party co-operation and agreement with
lessons from past inter-party talks on constitutional changes
are considered below. Back
Iceland's financial collapse in 2008 precipitated its current
constitutional experiment, it might be noted: see CRA O. Back
For further analysis, see CRA U. Back
See para. 175 and Blackburn, Case Studies, U. Back
Or "a complete mess-up" as the Cabinet Secretary at
the time has described it: see House of Lords Constitution Committee,
Cabinet Office and the Centre of Government, 2010-12, HL
30, p.30. Back
In relation to Scotland those matters do not include matters within
the legislative competence of the Scottish Parliament, unless
they are matters to which a Bill for an Act of Parliament relates;
and in relation to Northern Ireland those matters do not include
transferred matters within the legislative competence of the Northern
Ireland Assembly, unless they are matters to which a Bill for
an Act of Parliament relates. Back
January 29th, 2013. Back