A new Magna Carta? - Political and Constitutional Reform Contents

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.[866] 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.[867]

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 the constitution

12  The idea of codifying the constitution has steadily gathered momentum in political circles over the past forty or so years.[868] 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.[869]

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.[870] 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. [871] 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 required?

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 form.

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,[872] Scottish independence, withdrawal from the EU, a change in royal Head of State, or a combination of several factors arising simultaneously.

Popular pressures

20  In terms of popular opinion there is a low public salience of constitutional issues generally.[873] 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.[874] 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 gaffe[875] 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."[876] 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[877] 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.

Future prospects

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

867   See Robert Blackburn and Andrew Kennon, Parliament: Functions, Practice and Procedures (London: Sweet & Maxwell, 2nd ed., 2003), chapter 7. Back

868   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 ReviewBack

869   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

870   R. Blackburn and R. Plant (eds), Constitutional Reform (London: Longman, 1999), pp.213ff. Back

871   Methods to facilitate cross-party co-operation and agreement with lessons from past inter-party talks on constitutional changes are considered below. Back

872   Iceland's financial collapse in 2008 precipitated its current constitutional experiment, it might be noted: see CRA O. Back

873   For further analysis, see CRA U. Back

874   See para. 175 and Blackburn, Case Studies, U. Back

875   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

876   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

877   January 29th, 2013. Back

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Prepared 10 July 2014