A new Magna Carta? - Political and Constitutional Reform Contents

3 The body entrusted with drafting the document


30  Once a future Cabinet might agree to start a process by which the constitution was to be codified, some important preliminary decisions would need to be reached almost immediately. One of these would be to settle the nature and scope of the document (which it might be, as suggested above, a non-legal Constitutional Code, a Constitutional Consolidation Act, or a Written Constitution). Only in the light of this decision, could it be decided what type of public body was best suited to be entrusted with the delicate task of preparing the document.

31  There are a wide number of public bodies that have been appointed by past governments for inquiries into constitutional affairs, designed to consult and bring forward recommendations. They include Royal Commissions, Independent Commissions, and Speaker's Conferences. A parliamentary select committee has also been used on occasion.[878] The Law Commissions, in England and in Scotland, work on law projects referred to them by the Justice Secretary.[879] Operating independent of government a cross-party Constitutional Convention including representatives of civil society worked on Scottish devolution issues prior to the Scotland Bill being framed in 1997-98.[880] The House of Commons Political and Constitutional Reform Committee has suggested a government-initiated Constitutional Convention with a strong element of public participation be established to review and recommend a new and more lasting settlement for regional government across the UK.[881] Abroad, a number of public bodies have been entrusted with constitution-building projects, including specially established Constitutional Assemblies and Constitutional Commissions.[882]

The Cabinet Office

32  Initial consideration, however, should be given to the role of the Cabinet Office. In terms of government responsibility for political and constitutional reform, in the present Parliament it is the Deputy Prime Minister and a Minister of State who are the lead ministers, both of whom are based in the Cabinet Office. One of the key functions of the Cabinet Office, as set out in its Departmental Business Plan for 2011-15 is to 'Reform our political and constitutional system'. The Deputy Prime Minister chairs the Cabinet Home Affairs Committee whose terms of reference include consideration of issues relating to constitutional and political reform.

33  Within the Cabinet Office, these two ministers receive support from the Constitutional Group, transferred from the Ministry of Justice in 2010-11, comprising a Constitution Office and four units beneath it (Elections and Democracy, Parliament and Constitution, Electoral Registration Transformation, and Devolution Strategy). In the next Parliament, following the expected 2015 general election, ministerial and civil service responsibility for constitutional affairs is likely to revert to the Ministry of Justice if there is a change of party or parties in government.

34  While the Cabinet Office remains the lead body for constitutional reform, this can also at different times fall within the remit of various other departments, depending on the issue involved. For example, if a matter of European Union law is involved, the Foreign and Commonwealth Office will be involved. The Ministry of Justice has responsibility for constitutional affairs not covered by the Deputy Prime Minister, under the Lord Chancellor and Secretary of State supported by a Minister of State who currently is also Leader of the House of Lords.

35  Even if responsibility for constitutional reform moves back to the Ministry of Justice in the future, the Cabinet Office would still have an important role to play in codifying the constitution, whether of a central, supporting or coordinating nature. This would be particularly so with respect to the drawing up of a non-legal constitutional code, given the preparatory work it undertook during 2010-11 in the production of the Cabinet Manual.

36  The background and significance of the Cabinet Manual is as follows. In February 2010 the then Prime Minister Gordon Brown announced in a speech to the Institute of Public Policy Research that he has asked the Cabinet Secretary, then Sir Gus O'Donnell, to have the Cabinet Office produce a consolidation of the existing unwritten constitutional conventions (non-legal rules) affecting government into one single written document. In his speech, he said,[883]

"I can announce today that I have asked the Cabinet Secretary to lead work to consolidate the existing unwritten, piecemeal conventions that govern much of the way central government operates under our existing constitution into a single written document."

This initiative formed part of Mr Brown's broader project of working towards a written constitution, support for which he had informed the House of Commons earlier in a statement on constitutional renewal.[884]

37  The Cabinet Office then proceeded to produce the current Cabinet Manual, with support from colleagues across government, intended to be "a source of information on the laws, conventions and rules that affect the operation and procedures of government". A draft chapter covering the rules on government formation under a hung Parliament was published in February 2010, and submitted for comment to the House of Commons Justice Committee. To some extent it formed the basis for inter-party negotiations on constructing the coalition at the May general election. Work continued on the rest of the Manual after the election with the approval of the new Prime Minister David Cameron and Deputy Prime Nick Clegg. Following a full draft being published for consultation in December 2010, the final revised version was released in October 2011, with a foreword by the Prime Minister stating that it had been endorsed by the Cabinet as an "authoritative" guide for everyone working in government.

38  There is a debate to be had about the precise nature and status of the Manual. Thus in the view of the House of Lords Constitution Committee, "the Manual is not the first step towards a written constitution".[885] Indeed, that Committee believes it should be re-titled "The Cabinet Office Manual", clearly indicating that it is a unilateral declaration of constitutional principles that others might not necessarily agree with. The House of Commons Political and Constitutional Committee, however differs in some degree, whilst accepting the Manual is certainly not a written constitution in itself. The Committee said,[886]

"It has, however, considerable overlap in content with what might be expected of a constitution. The Cabinet Secretary has suggested to us that it would be likely to be a starting point for any attempt to produce such a constitution. By bringing together and publishing the Government's interpretation of existing constitutional rules and conventions, the Government has already begun to spark debate about both the nature of these rules and conventions and if and how they should be written down. This is a debate in which Parliament needs to play a full part."

39  It is submitted that the very process of a Cabinet endorsed statement setting out the rules and conventions of the UK system of government in a single authoritative written document is of considerable significance to the general idea of codifying the constitution; and indeed, it was with this in mind that the then Prime Minister in February 2010 initiated the work on the Manual and required it to be drawn up by the Cabinet Office.

40  Having already undertaken a great deal of preparatory work on what is essentially a codification of internal practice, the Cabinet Office is well-situated, and has the necessary resources, to oversee the drafting of a non-legal constitutional code (model A above), covering all aspects of the constitution, extending to some areas it does not cover such as matters of citizenship, to be submitted to Parliament for formal scrutiny and approval.

A Royal Commission

41  The classic method of examining some major constitutional question in the United Kingdom has been to establish a Royal Commission.[887] This has the highest formal status in terms of a public inquiry, with members of the Commission being formally appointed by royal warrant on the advice of the Prime Minister or a Secretary of State. Constitutional matters on which a Royal Commission has been set up in modern times include Systems of Election (1908-1910),[888] the Civil Service (1912-15,[889] 1929-31,[890] 1953-55[891]), the Local Government of Greater London (1921-23,[892] 1957-60[893]), Local Government (1923-29,[894] 1966-69[895]), the Police (1960-62)[896], the Constitution (in practice, dealing with devolution, 1969-73),[897] and Reform of the House of Lords (1999-2000).[898]

42  In substance, there is little difference between a Royal Commission and a departmental committee of inquiry that is more simply appointed by one or more government ministers. Such inquiries on constitutional matters have included Ministers' Powers (1929-31)[899] and Administrative Tribunals and Inquiries (1955-57).[900] More recently, bodies of a similar nature termed Independent Commissions have been set up to consider some particularly controversial proposal, including on the Voting System (1997-98)[901] and a Bill of Rights (2011-12).[902]

43  The membership of Royal Commissions and departmental committees is hand picked by the government, often taking nominees of opposition parties into consideration. Their working practices have varied considerably, and to a large extent are dictated by the government in setting the period of time in which the Commission or committee is required to report, and the human and financial resources assigned to them. A Royal Commission is more likely to hold extensive public hearings, but neither it nor a departmental committee of inquiry has the power to compel the attendance of witnesses, which bodies established under the Inquiries Act 2005 may do, such as the recent inquiry into the Culture, Practice and Ethics of the Press (2011-12),[903] or (in theory) a parliamentary select committee.

44  All these public bodies are advisory in nature, leaving it to the government to accept or reject their recommendations, or cherry-pick which of their recommendations to adopt. Depending on the nature of the composition of the Royal Commission or committee/commission, it may perform a role in fostering a degree of cross-party agreement. To the extent that it holds evidence-taking sessions, it will involve and gather useful information guiding its recommendations from experts, civil society, and the public generally.

45  In terms of prestige and tradition, a Royal Commission might appear the natural choice for designing or supervising a codification of the constitution. However, in practice there may be considerable drawbacks. The method of government appointment is opaque, often giving rise to suspicions that the membership is biased towards a particular conclusion. There has been little attempt in the past to make such a body representative of society.[904] Its inquisitorial style of public hearing in the past has not been successful in terms of encouraging public participation and deliberation. The success rate of Royal Commissions in terms of outcome has been poor.[905]

46  Insofar as the requirements for drawing up the different models of codification under consideration are both to engage the public and stimulate greater interest and clarity in the constitution on the one hand, and to complete a largely technical exercise in consolidating existing constitutional law and practice into one document on the other hand, a Royal Commission fits awkwardly as a means of delivering either outcome, unless it is to act as a supervisory body sponsoring one or two sub-units specially commissioned for the purposes of public deliberation and documentary drafting.

A parliamentary inquiry

47  A parliamentary inquiry into codifying the constitution could play a positive and important role in terms of political involvement, cross-party discussion, and selective evidence taking from constitutional experts, interest groups and, to some extent, popular opinion. Since, as discussed earlier, the government would effectively retain the initiative over any particular course of action, its report would be advisory in effect, but add fresh pressure and influence on ministers to respond and give an account of its policy and intentions with regard to the issues raised. In other words, such an inquiry could play an important preparatory and contributory role in the wider process of working towards a codified constitution.

48  The setting up of a Select Committee inquiry could be on a government or parliamentary initiative, presented in a motion to the House of Parliament concerned, with a specific remit to draft a codified constitution with commentary and analysis for further consideration. A time limited Select Committee could be set up in the House of Commons with a special remit to bring forward recommendations on constitutional codification, in similar manner to the Select Committee on Reform of the House of Commons chaired by Tony Wright in 2009; or a similar Committee could be established in the House of Lords or a Joint Committee of both Houses.

49  An alternative procedure would be for two or more existing Select Committees with a common or overlapping interest in constitutional affairs (notably the House of Commons Political and Constitutional Reform Committee and House of Lords Constitution Committee, possibly with the House of Commons Justice Committee, the Joint Committee on Human Rights, and the House of Lords European Union Committee) to establish a special sub-committee on constitutional codification, as has been done in the case of the present Arms Export Controls Committee. There is considerably more flexibility in the select committee system generally today, both in the selection of its inquiries and in their operational methods for public consultation. In the House of Commons, they are also now more genuinely independent of government and representative of the House as a whole, following the introduction of elections for members and chairmen since 2010.

50  An alternative approach would be to adopt the mechanism of a Speaker's Conference, in other words a cross-party conference chaired by the Speaker of the House of Commons, with a view to recommendations being put forward for the government to consider acting upon. As things have evolved over the past 100 years, there is now a tradition that a Speaker's Conference is limited to the consideration of difficult issues of parliamentary election law, particularly if they have a broad scope in terms of representation and are a matter of cross-party concern.

51  However, there is no good reason why a Speaker's Conference should be limited in this way. Indeed, the first such Conference in 1916-17, established to consider universal voting, the female franchise, and the voting system, was simply an ad hoc response to the need to find a method of promoting cross-party agreement on matters of a highly controversial nature, but which all were agreed had to be resolved as a matter of urgency for the post-War reconstruction of civil society. Most of the recommendations of the Conference successfully found their way into the Representation of the People Act 1918.[906]

52  There is one precedent for a Speaker's Conference on a subject other than electoral matters, being on regional devolution in 1919-20 initiated at the request of some Conservative MPs. Two reports were produced, but the conference failed to reach agreement on whether there should be devolution to England as a whole or to the regions of England and on whether devolved bodies should be directly elected or not.[907]

53  The great advantage of a Speaker's Conference would lie in the authority afforded it by virtue of the Speaker's chairmanship, with him being seen as politically neutral as it is possible for any parliamentarian to be in his capacity as Chair. In addition, it would be an effective device for promoting cross-party discussions, though this would need to be supported by genuine efforts at agreement in private meetings held elsewhere. It might have limitations in terms of engaging the public, though evidence-taking sessions could certainly take place, together with a specially commissioned programme of public deliberation on a range of constitutional questions.[908]

54  As the servant of the House of Commons, the initiative for a Conference could not realistically come from the Speaker himself. A backbench or opposition motion in the Commons could propose the creation of a Speaker's Conference on the constitution, but without the governing party's support it is almost certain to be rejected. If the Prime Minister were to instigate this procedure, however, this would signify a high level of commitment to act on its recommendations.

A constitutional Convention or Assembly with popular representation

55  The Committee on Political and Constitutional Reform has considered the case for a "constitutional convention" for the UK, focusing on the Union and future structure of devolution and regional governance in the United Kingdom.[909] A deliberative body of this kind could play a significant role in preparing the ground for a future government initiative, particularly if any changes of substance were being considered (as in model C). It could usefully clarify the areas of common agreement and particular problems to be addressed.

56  An essential element of such a convention would be its highly inclusive nature and strong element of public participation. Delegates should be drawn widely from across society, including representatives from business and the trade unions, local and regional government, faith groups, and former holders of public office including the judiciary. The convention might contain a proportion of ordinary members of the public willing to serve as delegates selected at random from the electoral register or through a scheme of election. Various methods might be adopted for otherwise involving the public. [910]

57  It would be most effective for such a convention to be established by the government, following cross-party talks and agreement on the precise remit and composition of the convention. However, a body of this kind could come into existence on the independent initiative of influential public or academic figures, as did the Scottish Constitutional Convention in 1989 that proved influential in preparing the ground for the Labour government's legislation on Scottish devolution in 1998.[911]

58  There would be a range of civil society groups able to participate or offer assistance. Some permanent policy institutes or ad hoc commissions have worked on the idea of codifying the constitution or related issues, such as Unlock Democracy (the successor to Charter 88), the Power Commission (whose membership included Ferdinand Mount and Helena Kennedy QC) which reported in 2006, the Institute of Public Policy Research ('The Constitution of the United Kingdom') in 1991, the Institute of Economic Affairs ('Britain's Constitutional Future') in 1991, the Smith Institute in 2007 ('Towards a New Constitutional Settlement'), and the law reform body Justice ('Towards a Codified Constitution') in 2010.[912] Critical to the convention's success would be the participation of those political parties who wished to move forward the debate on codifying the constitution.

The Law Commissions

59  If codifying the constitution in legal form were seen as essentially a technical exercise, re-enacting and codifying pre-existing rules - as would be most of the work involved in preparing a document in the nature of model B, while modernising some of the language used in earlier Acts of Parliament - the Law Commissions could be regarded as well situated to take on this task. The Law Commission of England and Wales was created specifically for the purpose of achieving greater simplification, coherence and modernisation in the structure of the law.[913] The Commission is required "to take and keep under review all the law including in particular the codification of such law".

60  There are three Law Commissions in the UK, dealing with the respective legal systems in England and Wales, Scotland and Northern Ireland. The Law Commission for England and Wales could be the lead body in codifying the constitution, acting in close association with the other two Commissions. The English Commission consists of a Chairman and four Commissioners, all of who are appointed by the Lord Chancellor and Secretary of State for Justice. The Chair is a person who holds office as a judge of the High Court or Court of Appeal, and the other Commissioners are qualified by the holding of judicial office or by experience as a legal practitioner or as a University professor of law.

61  The Commission adopts project proposals on the basis of government departmental submissions or at the suggestion of others, with the support of the department. These it considers taking into account factors such as whether it agrees the law is unsatisfactory, there are benefits of reform, the suitability of the Commission to undertake the work, and the Commission has the relevant expertise. Commissioners then submit their proposed programmes of work to the Lord Chancellor for his formal approval. After their work is completed, their reports (which include draft Bills and detailed legislative proposals) are submitted to the Lord Chancellor to consider, and he will present them to Parliament if and when he and the Cabinet agree to do so.

62  Since the Commission is under a statutory duty to review "all of the law", this includes the law of the constitution. It has earlier conducted reviews of particular public law subjects, including on Administrative Redress and currently on Electoral Law. It has extensive experience of both consolidation work, producing over 200 consolidation Bills that have become Acts since 1965, and codification exercises, including in the law of divorce, family, crime, landlord and tenant relations, though only a few of these were in the event completed, largely for reasons of resource and shifting priorities. In the case of one project, on codifying the criminal law, it established a dedicated group of distinguished academics known as the "Code Team" under terms of reference set by the Commission to which it reported. The team's report, including a draft bill, was published with an introduction by the Commission, and presented to the Lord Chancellor as a "document for discussion".[914]

63  In the opinion of the Commission and the Lord Chancellor, any proposed project for its work must be "suitable", which has been described in its latest programme of law reform in the following way: "Whether the reform would be suitable to be put forward by a body of lawyers after legal research and consultation (this would tend to exclude subjects were the considerations are shaped primarily by 'political judgements'".[915] This means that if the government requested that the Law Commission undertake this work of codifying the constitution, it must come with the agreement of the main political parties and without any significant degree of political contentiousness.

64  The advantage of using the Commission for codifying the constitution would be that its report and draft document would be conducted in a politically neutral and independent way, treated as a technical exercise, and it would follow the professional working practices of the Commission which are well suited for such a task in matters such as consultation and Commissioner peer-review. However, there would need to be a broad consensus not only on the desirability of codification, but also on what the content of codified constitution should be. The government's brief to the Commission on content would need to be established in advance through a prior process of public and parliamentary consultation and all-party agreement.

65  In correspondence with the author, the Chairman of the Law Commission, Sir David Lloyd Jones, agrees that the Law Commission is suitably equipped to take on this task. In his letter of 19 June 2014, he has said,

"On a technical level, the task of bringing together in one statute, and modernising the language of, various provisions of existing statute law relating to constitutional matters is one for which, in principle, the Commission would be well suited. I can equally see how a similar process could be applied to constitutional conventions. I would only add two caveats. First, it would only be appropriate for the Commission to undertake such a task if there was a clear political consensus in favour of engaging in it as a technical exercise. Secondly, such a task, particularly if there were to be a requirement to conduct it speedily, would require appropriate additional resources for the Commission. The United Kingdom-wide nature of such a project would make involvement of the Scottish and Northern Irish Law Commissions desirable."

A Commission for Democracy

66  Beyond the UK's experience of the various commissions, inquiries, committees and conferences that have been involved in aspects of constitutional change in the past lie a number of other institutions or procedures that have either been used abroad for the purposes of constitution change and innovation, and/or might be constructed as a bespoke solution to the challenging task of codifying the UK constitution.

67  One option would be to establish a permanent constitutional commission, either under the royal prerogative or under an Act of Parliament, with its first task to be that of preparing a codified constitution for the UK. This would be an advisory body to the government, operating similarly to that of a Royal Commission but on a standing and permanent basis like the Committee on Standards in Public Life. Longer term responsibilities might include policy and impact reviews on issues of prospective reform, and undertaking initiatives of public engagement and deliberation on political and constitutional issues.

68  Proposals for a constitution commission for the UK have been made before,[916] and have been influenced by the Australian experience of such a commission.[917] Its composition might be a mixture of nominees from the main political parties, together with representatives from relevant professional groups including law and business, as well as civil society and local and regional bodies.

69  Far more ambitious would be the creation of a Constitutional Assembly or Convention with an elected element, established by Act of Parliament for the specific purpose of enacting a new constitution. This would involve a specially composed representative body, with at least half being chosen through a democratic process of nomination and election, for the task of creating a new constitution or constitutional settlement. In recent times bodies of this nature have been used in Geneva, Iceland and Ireland, which are discussed in the ancillary paper Case Studies on Constitutional Building.[918]

70  If substantive changes to the political system or citizens' rights were being proposed by the government at the same time as preparing the codified constitution, it would provide an institutional framework for both cross-party discussions and popular deliberation in which to take place. It would be a sensational event, arousing considerable media and popular discussion, particularly if the issues were perceived as directly affected ordinary people's social and political rights and everyday lives. However an Assembly of this nature is unlikely to be thought suitable for an exercise in codifying the constitution as it exists at present, and so is likely to be ruled out as unnecessary if a non-legal code or consolidation statute was being considered.  

71  The most suitable option for supervising the preparation of any of the three models for codification, especially if the process of codification were regarded as a building block process with a written constitution as it projected endpoint, might well be a commission set up on executive action (in other words, under the royal prerogative). Its composition would need to be agreed between the parties, and could be political in nature (for example, a government minister as Chairman to drive the process forward and link it with the Cabinet, with twelve Commissioners from the two Houses of Parliament nominated by and representing the government, opposition and minor parties in a manner ensuring cross-party co-operation so far as possible, and three co-opted Commissioners), or comprising independent members approved by party agreement, or a combination of these two types, with the nominations being approved by a vote in each House of Parliament. The government initiating the process would need to ensure that the Commission had adequate resources for a secretariat and advisory group necessary for any purposes the Commission thought necessary in performing its task. Further consideration is given to such a body in the conclusions and recommendations below (paragraphs 212-217) with a proposal it be termed a Commission for Democracy.

878   These types of body are discussed below. Back

879   See below, and Blackburn, Case Studies, C. Back

880   See ancillary Blackburn, Case Studies, D. Back

881   Do We Need a Constitutional Convention for the UK?, 2012-13, HC 371. Back

882   See below and Blackburn, Case Studies, on overseas precedents. Back

883   Towards a New Politics, February 2, 2010. Back

884   Commons Hansard, 10 June 2009, col 798.  Back

885   The Cabinet Manual, 2010-12, HL 107. Back

886   Constitutional Implications of the Cabinet Manual, 2010-12, HC 734, p.10. Back

887   See Blackburn, Case Studies, B. Back

888   Cd. 5163 (1910). Back

889   Cd. 6210 (1912), Cd. 7338 (1914). Back

890   Cmd. 3909 (1931). Back

891   Cmd. 9613 (1955). Back

892   Cmd. 1798 (1923). Back

893   Cmd. 1164 (1960). Back

894   Cmd. 3436 (1929). Back

895   England, Cmd. 4040 (1973). Back

896   Cmd. 1728 (1962). Back

897   Cmd. 5460 (1973), Back

898   A House for the Future, Cm. 4534 (2000). Back

899   Cmd. 4060 (1931). Back

900   Cmd. 218 (1957). Back

901   Cm. 4090 (1998). Back

902   Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us (December 2012). Back

903   HC 779, 29 November 2012. Back

904   For example, only 5 of the 53 members of the last three Royal Commissions combined were women. Back

905   See Blackburn, Case Studies, B. Back

906   For a detailed study of the preparation, passage and outcome of this major constitutional reform see Robert Blackburn, "Laying the Foundations of the Modern Voting System: The Representation of the People Act 1918", in Philip Norton (ed), A Century of Constitutional Reform (Parliamentary History, 2011, pp.33-52). A second such Conference was held in 1944 to examine the parliamentary constituency boundaries, reform of the franchise, conduct and costs of elections, and methods of election, which led to the Representation of the People Act 1944. Since then, there have been five further Speaker's Conferences, all dealing with matters of parliamentary representation and election law. The most recent was established in 2009 to examine female and ethnic minority representation, whether the voting age should be reduced to sixteen years of age, and on which day voting should take place. Back

907   Cmd. 692 (1920), Conference on Devolution: Letter from Mr Speaker to the Prime MinisterBack

908   Such a programme was conducted, for example, by the Ministry of Justice in 2009-10 on the question of citizenship rights and responsibilities: see Rights and Responsibilities: Developing Our Constitutional Framework, Cm 7860 (2010). Back

909   House of Commons Committee on Political Constitutional Reform, Do We Need a Constitutional Convention for the UK?, 2012-13, HC 371. In 2007 a private member's bill presented by Julia Goldsworthy had proposed a Citizens' Convention drawn from all sections of society to consider and make recommendation on the way in which the UK is governed, which the Secretary of State would be required to consider and take steps to implement: Citizens' Convention Bill, 2006-07, HC 136. Back

910   See section 6, and Blackburn, Case Studies, U and V. Back

911   See Blackburn, Case Studies, D. Back

912   The content of these publications are discussed in the ancillary paper, Literature ReviewBack

913   For a detailed account see ancillary Case Studies, Case Study C. See also Graham Zellick, The Law Commission and Law Reform (1988); Michael Zander, The Law-Making Process (2004), ch. 9; and Lord Justice Munby, Shaping the Law - The Law Commission at the Crossroad (Denning Lecture, 2011).  Back

914   See Blackburn, Case Studies, for further details. Back

915   Law Commission of England and Wales, 11th Programme, 330. Back

916   See for example R. Brazier, Constitutional Reform (3rd ed., 2008), ch. 2. Back

917   See Blackburn, Case Studies, G. Back

918   See Blackburn, Case Studies, M, O and Q. Bodies of this representative nature have been called either Assembly or Convention: for example in Geneva and Iceland an Assembly, and in Ireland a Convention. Back

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Prepared 10 July 2014