A new Magna Carta? - Political and Constitutional Reform Contents

4 Issues of content


72  The starting point for any process determining the content of a codified constitution would be definitional in terms of what is regarded as being "constitutional" or fundamental in nature to the working of the UK system of government. Some leading conceptual issues about UK constitutionalism would be important to bear in mind, underpinning the design and structure of the document.

73  As useful precedents or models for comparison, particularly in preparing a written constitution in the nature of model C, those drafting the codified constitution regard might be had to the structure of some suitable foreign constitutions,[919] particularly in Commonwealth countries where their written constitution was principally drafted by the UK government on the Westminster model when granting independence.

74  In helping fix the parameters of the constitution that is being codified, a useful working definition has been provided by the House of Lords Constitution Committee, who addressed this question when it first set about its deliberations on being created in 2000. It defined its scope as addressing, "the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual".[920]

Values and principles

75  Establishing the core principles and values underlying the UK's political and legal culture will be necessary, either to influence the design of the document or to be stated within it.

76  The House of Lords Constitution Committee has set out what it considers to be the five existing basic tenets of the UK constitution, as - the sovereignty of the Crown in Parliament; the rule of law, encompassing the rights of the individual; the union state; representative government; and membership of the Commonwealth, the European Union and other international organisations.[921]

77  A Preamble might be prepared at the front of the document, declaring what the most basic of these values might be.[922] This is the case in most constitutions of the world, and indeed preambles to Acts of Parliament used to be used much more extensively in in the past, particularly for important constitutional statutes. In a legal document, the Preamble does not form part of its enforceable text, though it may have an explanatory and purposive use in the interpretation of its provisions.

78   In adopting the terminology of some basic principles, it is useful to be aware of the origin of some commonly used expressions. Some commonly used terms are derived from the writings of University law professors, rather than any official source. This is because the nature of English common law renders itself impenetrable to most ordinary people, constructed as it is on a case-by-case basis and written down in lengthy law reports. The guiding principles underpinning the common law, therefore, added to by ad hoc legislation, are most clearly set out by jurists in their textbooks or published lectures.

79   An early book of this nature on the constitution was written by Professor Albert Venn Dicey in the pre-democratic era of 1885 shortly after English law started to be taught at Oxford and London Universities. His book, The Law of the Constitution, formulated three expressions in particular that subsequently became embedded in the UK's political and legal vocabulary. These were,

·  "parliamentary sovereignty" - to describe the supremacy of an Act of Parliament over other sources of law and where two statutes were contradictory the more recent prevailed in the courts;

·  "the rule of law" - to mean the absence of arbitrary authority (or government according to law) and equality before the law; and

·  "constitutional conventions" - to describe the unwritten and non-legal customs of political and constitutional practice.[923]

80  In the twenty-first century those drafting a codified UK constitution should consider how appropriate it is to continue adopting Professor Dicey's terminology and to what purpose. The term "the rule of law" is aspirational rather than descriptive, and "conventions" are essentially descriptive rather than aspirational. "Parliamentary sovereignty" as legal fact was descriptively accurate for the Victorian era, but has often been distorted into a political term in recent times. There are arguments about its contemporary relevance, and taken literally would infer the UK was an oligarchic state run by politicians at Westminster, rather than the political democracy we aspire to be today.[924]

81  In terms of issues to be described and written down, whichever model of codification is adopted, those drafting the document will need to address issues such as:

·  popular sovereignty and the democratic nature of the state

·  equality and non-discrimination in citizenship

·  government actions being in accordance with established law

·  judicial independence and impartiality in supervising the legality of government and securing the freedoms of its citizens

·  the accountability of ministers to Parliament

·  the nature of the Union between England, Scotland, Wales, and Northern Ireland

·  the constitutional relationship between central and local government

·  the constitutional nature and limits of the UK's membership of the European Union

·  the constitutional method of protecting human rights in the UK

·  the delivery of core social and economic services to citizens

·  the political impartiality of civil servants and parliamentary, regional and local government state officials

The debates around these issues were examined in the earlier report of the Centre, presented to the Committee in May 2012.[925]

Form, subject matter, and level of detail

82  The form of codification is most likely to be in one document, but could alternatively be set out in a small series of related documents, or in the case of model C (Written Constitution) one document known as the Constitution with other associated texts. The section dealing with rights and freedoms of citizenship, for example, could be located in a separate but related document, either retaining the Human Rights Act 1998 as it is at present or enacting a UK Bill of Rights in its place.[926]

83  The narrative and text of the codified constitution will extend across the different branches of government, including the Crown and political executive (head of state, head of government, ministers), their relationship with Parliament in the Westminster model (rules of ministerial responsibility), the legislature together with membership, powers, and central procedures (House of Commons, House of Lords, Speakers, legislative process, Select Committees), the civil service and freedom of information, the judiciary and court systems (in England and Wales, Scotland, and Northern Ireland), the devolved systems of regional government, the structure of local government, issues of nationality and citizenship (including human rights and freedoms), commissions or ombudsmen of a constitutional or quasi-constitutional nature, provision for national emergencies, arrangements with the European Union, and the status and ratification of treaties, and procedures for amendment.

84  The relative length and level of detail for a codified constitution will be heavily influenced by the type and nature of the document adopted, described in the three models set out at the start of the report.

85  Thus a non-legal document (model A), being in the nature of a code of guidance, can be expected to concentrate on general principles and clarity of expression without descending into too many qualifications or excessive detail. Where codes relating to particular components of the constitution or government already existed, or were being planned, such as with human rights[927] or in respect of relations between central and local government[928], then after an explanation and reference could be made to those documents instead.

86  The content of a consolidation Act (model B), comprising a re-enactment of pre-existing legislative material, would be more lengthy and detailed. It would need to deal with a great deal of statutory material, which in the traditional UK manner is drafted in very great detail, seeking to cover every eventuality. A line would need to be drawn between essential constitutional subject matter and public law of a more organic or subordinate nature to which reference could be made, undertaken with careful editing of the overall document accompanied by an explanatory memorandum.

87  This demarcation would be even more important with model C, as the content of the document would have a higher status in law and a special amendment procedure, as is most common for most democratic states around the world. Generally speaking, the shorter the document the less frequent the need for amendments.

88  A shorter document might result in greater judicial creativity in interpreting and applying its provisions, as in the case of the constitution of the USA and its Supreme Court. However, a long and detailed constitution, such as that adopted by India in 1950 with 444 articles in 22 parts with 118 schedules, may give greater certainty in specific areas of public life, but may also prove highly politicised, both in the parliamentary sphere (because governments will far more frequently be seeking amendments to suits their ends). Experience shows that a more detailed constitution does not necessarily prevent the judiciary from becoming embroiled in the politics of the state through its rulings.[929]

89  A middle way is therefore most likely to gain broad support. For example, with respect to Parliament this would mean the principle of elections to the Commons be stated (constituency basis of representation, universal suffrage, secret ballot, regular intervals) but the details of electoral administration and precise method of election be left to organic law in the Representation of the People Acts. With regard to the House of Lords, it might mean the principle of selecting peers be stated as one of appointment by the Head of State on the recommendation of the Prime Minister (unless some change was simultaneously proposed) and the powers of the Lords as set out in the Parliament Act are re-enacted (with any changes proposed with respect to amendments to the constitution). It might mean the offices of Speaker in each House was included, together with the requirement that he or she be chosen from amongst their number, leaving the procedural details of election to standing orders as at present.

90  An important part of most documentary constitutions sets out the fundamental rights and freedoms of citizenship, containing limitations and inherent responsibilities. Currently, a code of human right law already exists in the form of the articles of the European Convention on Human Rights which are incorporated into UK law by the Human Rights Act 1998. The inconclusive inquiry and report of the Independent Commission on a Bill of Rights in 2012 suggests there is little present scope for agreement over revising those articles for the purposes for an indigenous constitutional Bill of Rights, whether in form this was separate from or included in, a codified constitution. In other words, a codified constitution could either simply make reference to the Human Rights Act; or, if preferred, a consolidation Act or written constitution could re-enact its provisions as they stand. Nonetheless, passage of time and changing political attitudes in the coming years may present another opportunity to enact a new Bill of Rights.

Codifying conventions

91  Codifying the constitution will involve putting into writing some important rules and customs of constitutional conduct which are of a non-legal and "unwritten" character. They were defined by Professor Dicey in 1885 as consisting of "customs, practices, maxims, or precepts which are not enforced or recognised by the courts" and " make up a body not of laws, but of constitutional and political ethics".[930] They include some basic matters such as that the Head of State will appoint a person to act as Prime Minister and Head of Government, and that to be eligible for ministerial appointment the person appointed must have a seat in one of the two Houses of Parliament (which in the case of the Prime Minister and Chancellor of the Exchequer must be the Commons). Rules of this conventional character regulate the exercise of the Crown prerogatives, and the various relationships between the Cabinet and Prime Minister, between Parliament and ministers both collectively individually, between the House of Commons and House of Lords, between ministers and the judiciary, and between the UK and other Commonwealth states.[931]

92  A parliamentary Joint Committee on Conventions in 2006 was opposed to the codification of conventions, arguing that they, "by their very nature, are unenforceable ... codifying conventions is a contradiction in terms. It would raise issues of definition, reduce flexibility, and inhibit the capacity to evolve. It might create a need for adjudication.."[932] However, that Committee had a specific task of dealing with conventions of restraint in the House of Lords (the Addison-Salisbury convention, in particular) in the changing context of House of Lords reform and controversy over what would be the likely effects of democratising the second chamber through a process of elections.

93  In reality there are few definitional problems in identifying and articulating the most basic conventions that would need to go into a codified constitution. The most authoritative analytical test for establishing the existence of a new convention is widely regarded as being that provided by Sir Ivor Jennings, who said there were three questions to ask - what are the precedents; did the actors in the precedents believe they were bound by a rule; and is there a reason for the rule.[933]

94  The task of codifying conventions is now substantially easier than ever before. Most conventions are already found described and defined in authoritative works of constitutional law such as Halsbury's Laws of England or leading textbooks,[934] and are much commented on in scholarly articles and books.[935] As a species of constitutional regulation they are also in a state of decline. Particularly in the post-1997 period of rolling constitutional change, any unwritten conventions have become markedly less robust in shaping political behaviour, a feature remarked upon recently in a lecture by a former Cabinet Secretary, Lord Wilson, who said, "Our unwritten constitutional conventions are under pressure from a variety of directions, for instance because of the power of the media, constitutional change, management change and a general ignorance of, or impatience with, the constitution."[936]

95  Principally for this reason, there has been an ad hoc process codifying conventions taking place anyway, positioned in a variety of documents of different status. For example, the conventions of ministerial responsibility are now set out in the Ministerial Code; those governing the position of civil servants have been described in the Civil Service Code issued under the Constitutional Reform and Governance Act 2010; there are parliamentary codes setting out pre-existing conventions governing the conduct of MPs and peers along with revised regulatory requirements; and the conventions for exercising the royal power of dissolution of Parliament have been superseded by the Fixed-term Parliament Act 2011.

96  In a small number of "grey areas" where there is uncertainty or ambiguity over the existence or scope of a convention, agreement and clarification would need to be reached to go into the codified constitution. The last Cabinet Secretary, Sir Gus O'Donnell, conducted an exercise of this nature in preparing the Cabinet Manual during 2010-11 that puts into writing virtually all the key conventions regulating the operation of government for the benefit of civil servants.[937] Indeed, that Manual usefully would provide a useful government perspective on conventions for those drafting a codified constitution.

97  Thus the conventions on prime ministerial appointment in hung Parliament situations could be included in the codified constitution.[938] On whether there is a convention that the agreement of the House of Commons should be sought before the government instructs the armed forces to enter into conflict abroad, or starts arming opposition groups in foreign countries, there will be clarity to replace the current level of uncertainty. [939] So too, there could be clarity over whether it is now settled constitutional practice for the Prime Minister to appear at periodic intervals before the House of Commons Liaison Committee, whereas prior to 2002 it was always claimed to be a convention that Prime Ministers did not appear before Select Committees.[940]

98  Conventions are currently enforced in a number of different ways, all of which are non-justiciable.[941] For example, the principles of ministerial responsibility and accountability to Parliament are enforced by the Prime Minister who has the power to dismiss ministers if they conduct themselves in an unconstitutional manner. If a Prime Minister were to breach convention by refusing to resign office after a general election defeat, or following a vote of No Confidence in the House of Commons,[942] it would be the duty of the monarch as Head of State to dismiss him or her from office and invite the Leader of the Opposition to form an administration.

99  The same existing mechanisms for enforcing conventions could, if desired, remain in place under any method of codification, including a legal document under models B and C. In a consolidation Act or written constitution, specific provisions setting out a convention can be stated to be non-justiciable and outside the scope of the courts. Their mention in these documents would elevate their authority, nonetheless, and any breach would lead to some form of parliamentary redress, if needs be by way of a censure motion in the House of Commons. However, in a written constitution (model C) it can be expected that most core conventions would be regarded as suitable for becoming legally enforceable, including prime ministerial appointment. None of this of course would prevent new informal practices and understandings of lesser importance developing in the political system over a period of time, as routinely occurs in any country whether or not it possesses a written constitution.

The status and priority of a codified constitution

100  An important component of any legal document (models B and C) codifying the constitution will be to determine its status as law, and whether or not the judiciary is to be given powers to review the validity of normal Acts of Parliament against the articles contained in the document.

Model B (Consolidation Act)

101  The re-enactment of existing statutory provisions in a consolidating Act of Parliament (model B) would need to address the problem of its provisions being overridden by later contradictory statutes. This is because of the ancient common law rule that where two statutory provisions contradict one another, the later statute prevails.

102  Formerly this principle applied even if the contradiction was merely incidental or implied, rather than being stated expressly.[943] However there is recent case law to the effect that statutes of major constitutional importance, which an Act consolidating our constitutional law would be, are no longer subject to this doctrine of implied repeal.[944] This still means, however, that any Act of Parliament passed after the Consolidation Act that was clearly expressed as to its intended effect would prevail over any sections contained within the Consolidation Act. Clearly, if the Consolidation Act was to confer new, extended powers of review upon the courts, particularly ones purporting to enable them to strike down Acts of Parliament as unconstitutional, this would be a major reform rather than a consolidation of the existing situation and therefore contradictory to its stated purpose.

103  The constitutional position of the judiciary under a Consolidation Act, therefore, would be that the courts uphold the terms of the Consolidation Act against infringement by all later Acts of Parliament, save where an intention to override, amend or repeal some part of the Consolidation Act is clearly expressed in the contradictory later statute. It would then be for Parliament and its scrutiny committees to ensure that any such later Act of Parliament had been carefully considered and approved as an amendment to the codified constitution. The Consolidation Act itself could be periodically re-issued in its amended form.

Model C (Written Constitution)

104  Most written constitutions afford themselves some higher status and priority as law, thereby enabling judicial review of ordinary legislation on grounds of incompatibility with the constitution. This would be a key issue for those drafting a codified constitution of this nature, and perhaps its most controversial aspect as it engages questions of parliamentary sovereignty and the balance of the relationship between executive, legislature and judiciary.

105  In the present state of affairs, the courts have limited powers of constitutional review. They may review the legitimacy of UK subordinate legislation (on specific grounds such as procedural impropriety[945]), and may review the legislative measures of the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly under the term of the devolution settlements.[946] Under the terms of the Human Rights Act 1998, the courts protect citizens from later legislative provisions that violate their fundamental rights and freedoms by making a "declaration of incompatibility".[947] Under this procedure, the courts go through the process of judicial review of primary legislation, but where a legislative provision is held to be unconstitutional in the sense of contradictory to the human rights code the court may make a declaration that has significant consequences even although it does not invalidate the offending statutory provision.[948] The purpose of this declaration is to inform the government and Parliament, and in effect to invite them to initiate some reform of the law to amend the offending legislation.[949] The Supreme Court has other first hand experience of constitutional review of primary legislation, arising from its jurisdiction as the final Court of Appeal from twenty-seven Commonwealth countries and Crown dependencies.

106  There are different levels of legal status and priority that might be considered for a written UK constitution, ranging from none at all (as effectively at present, subject to the qualifications cited above) to full judicial supremacy. Lord Hailsham in his lecture calling for a new constitution in 1976 was firmly of the view that it should be of the "controlled" variety, as he put it, meaning there should be a judicial power to invalidate Acts of Parliament that violated the constitution.[950] This is the path taken by the framers of many written constitutions, including in the USA and Germany. This would not ultimately affect the supremacy of Parliament, of course, which could respond to any judicial decision of which it disapproved by enacting a constitutional amendment.

107  A qualified judicial entrenchment would be to give the codified constitution a higher status and priority in law, reflecting its national importance, but one which could be disregarded for the purpose of constitutional review where the Act of Parliament being considered by the court included a section stating that it was to apply "notwithstanding" the Constitution.[951] It would then be for Parliament to ensure that future governments did not unnecessarily include such clauses in their Bills, or allow parliamentary draftsmen to fall into routine use of them.

108  A more pragmatic, and perhaps very British solution, would be to broaden the Human Rights Act procedure of non-legal declarations of incompatibility to the content of the codified constitution as a whole. This would satisfy those politicians who were wedded to traditional notions of parliamentary sovereignty, and/or those who were antipathetic to the idea of unelected judges having the final word on constitutional matters.[952] At the same time, the terms of the codified constitutional document could be stated to have the status of a guide to statutory interpretation, to be used where relevant in the resolution of uncertainties or ambiguities in the provisions of later or earlier Acts of Parliament.

109  A number of non-judicial bodies could be designed to supervise compliance with, adjudicate upon, and/or enforce any type of codified constitution. If a new Constitutional Commission was established, as considered earlier, it could be entrusted with one or more of these tasks. Alternatively, particular parts of the structure of government could supervised by particular watchdogs, analogous to those already existing such as the Committee on Standards in Public Life, the Commission on Equality and Human Rights, and the Electoral Commission.

Amendment of the codified constitution

110  Another important component of a codified constitution will be to establish the process and procedures by which it is to be amended.

Model A (Constitutional Code)

A non-legal Code might be re-issued at the start of each new Parliament, updating itself on any legislative changes that took place in the previous Parliament and inserting any proposed changes in convention or practice for the discussion and formal approval of each House.

Model B (Consolidation Act)

111  An Act that sought to include a consolidation of pre-existing procedures on constitutional law reform would need to be clear what this entailed. Currently there is a remarkably flexible process governing constitutional change or innovation in the United Kingdom, even at the formal level of legislation.[953] There are a few specific laws or conventions governing the reform process relating to the powers of the House of Lords (prolongation of Parliament exception to the Parliament Acts 1911-49), committee stages in the House of Commons (committee of whole House for bills of first class constitutional importance), prior approval to proposed changes affecting the Crown and its prerogatives (convention of royal consent), and when referendums should be used (on major issues of regional or European government), but most of these are addressed to changes to particular parts of the constitution, rather than applying to the process of constitutional reform generally. There is even greater flexibility if the change being considered is of a non-legal nature, such as the preparation of a code of practice or introduction of a new convention.

112  Many, if not most, today believe that in the new era of rolling constitutional change since 1997, the UK constitution has become overly flexible, with its being too easy for alternating parties in government to make fundamental changes without going through a proper process of consultation and approval. Even without codifying the constitution, there is a case for standardising and making more rigorous the procedures through which reforms to the political system and the constitutional rights of its citizens are made.[954]

113  The Fixed-term Parliament Act 2011 for example, reforming the law on general election timing, was widely condemned as a prime example of poor process, including among those who agreed with its aims. The House of Commons Political and Constitutional Reform reported that, "it is unacceptable that a Bill of this legal and constitutional complexity has not been the subject of any prior consultation and pre-legislative scrutiny";[955] and the House of Lords Constitutional Committee commented, "the origins and content of this Bill owe more to short-term considerations than to a mature assessment of enduring constitutional principles or sustained public demand".[956] The Bill was pushed through both Houses on the back of its government majority and a three-line whip, effectively extending period between general elections from four to five years.

114  It is not difficult to formulate a set of procedures governing the constitutional reform process that would represent best practice in the minds of most parliamentarians. Most would agree there should be an established process of public consultation that government proposals should normally follow, such as those set out in the government's former Code of Practice on Consultation in 2000[957]. That code was frequently not complied with, and then in 2012 was replaced by a less robust statement of Consultation Principles issued by the Coalition in 2012.[958] Any major constitutional reform should be the subject of a formal Green (consultation) paper, following by a White (statement and explanation of government intent) paper for public information and response. A draft Bill on any constitutional proposals should always be presented to Parliament for pre-legislative scrutiny. Only in genuinely exceptional circumstances, recognised and agreed by each House of Parliament, should these consultation procedures be departed from.[959]

115  A modest proposal from the House of Lords Constitution Committee is that when a constitutional Bill is presented to Parliament, the responsible minister might make an oral or written statement to the House in which it is first presented. This might detail the consultation processes through which the policy behind the Bill has gone through, together with a summary of representations received and the government's response; indicate any unusual procedures through which the Bill will pass, such as a referendum, time allocation motions, or departure from the House of Commons committee stage of the Bill being held by whole House, giving their justification; and give an assessment of the effect of the Bill upon existing constitutional arrangements.[960]

116  All these requirements could be written into the codification Act, either as non-legal expectations for which ministers were responsible to Parliament, or as legal requirements. In present circumstances the idea that governments might voluntarily apply a rigorous and consistent approach to its constitutional proposals might be seen as unrealistic, for there is too often a political self-interest in such measures to welcome hurdles and procedures that may obstruct or delay their implementation. Ministers are accountable to Parliament for all their actions and policies, but the reality is that each House can only seek to persuade governments how to behave through debate and threats of intra-party dissent, they cannot dictate to it. There is a case therefore for including at least some minimum pre-existing ideas of good practice governing amendments into mandatory legal requirements within a codification Act.

Model C (Written Constitution)

117  Written constitutions around the world almost always lay down a special legislature procedure for amendments, different from those governing ordinary legislation. These are usually in the nature of special majorities in one or both of a bicameral legislature, enhanced powers of the second chamber, the consent of regional bodies or states within a federal structure, and/or a referendum.

118  Special majorities are unknown to the UK Parliament, with two exceptions. One is the requirement in Standing Orders for at least one hundred members in the House of Commons to vote in favour of a successful closure motion.[961] The other, providing a possible precedent for those framing a written constitution, is a requirement for two-thirds of the membership of the House of Commons to vote in support of an early general election under the terms of the Fixed-term Parliament Act 2011.[962] This is a high threshold and would normally require some degree of cross-party co-operation.

119  In theory at least, most people regard the House of Lords as performing some special role as watchdog of the constitution and in the scrutiny of constitutional Bills. For this very reason and purpose, it has a Select Committee on the Constitution. Under the Parliament Acts 1911-49 the second chamber at present possesses a one-year power of delay over non-financial public Bills dealing with any type of subject-matter introduced and passed by the House of Commons, with two exceptions where its approval is required without time limit. One is any Bill to prolong the life of Parliament, in other words suspend general elections;[963] the other is any subordinate legislation by way of statutory instrument including Remedial Orders under the Human Rights Act 1998.[964]

120  In the past, the two main parties' leaderships have opposed any extension in the powers of the House of Lords, no doubt because they fear the obstruction this might cause them in office. However, there would clearly be a case for extending the second chamber's powers with respect to amendments to a written constitution. Indeed, this might enhance its rationale generally within the parliamentary process, whereas at present a major factor stymying Lords reform generally has been uncertainty and disagreement over any distinguishing purpose.

121  A small enhancement would be that a majority of the membership of the House, rather than a majority of those present and voting as at present, is required. However, a two-thirds majority would not be unusual, as is case in Germany and the USA. Rather than being given an absolute power of veto, the Lords might be given an extended power of delay up to the remainder of the life of the Parliament, thereby allowing for an expression of the opinion of the electorate on the matter.

The referendum in constitutional amendment

122  In the past forty years, the referendum has emerged as part of the UK's constitutional structure, though largely as a procedure to be used on an ad hoc basis at the convenience of the government. It has been limited to questions of constitutional change, rather than other public policy or moral issues. Referendums have so far been held as a border poll in Northern Ireland in March 1973 (on whether the province should remain part of the UK or join with the Irish Republic); on the EEC, June 1975 (whether the UK should remain in the EEC); on devolution in Scotland and Wales in February 1979, and again later in September 1997; on the Greater London Authority proposals in May 1998; on the Northern Ireland Agreement in May 1998; on a regional assembly in the north-east of England in November 2004; on the powers of the National Assembly of Wales in March 2011; and on the Alternative Vote method of electoral system in May 2011. There is to be a referendum on Scottish independence in September 2014.

123  Legal provisions and political promises for a referendum are also now in existence. By the provisions of the Northern Ireland Act 1998, Northern Ireland cannot cease to be a part of the United Kingdom without a referendum. By the provisions of the Local Government Act 2000 (as amended by the Local Government and Public Involvement in Health Act 2007), a local authority has the power to hold a referendum to adopt a directly elected mayor, if it chooses. By the Regional Assemblies (Preparation) Act 2003, regional assemblies in England cannot be established without a referendum. By the provisions of the European Union Act 2011, any significant transfer of powers from Westminster to the European Parliament requires a referendum. David Cameron has promised that, if he is able to do so after the next general election, he will seek reform of the EU as a whole, or a new position for the UK within it, at which point he will offer the electorate the choice in a referendum between the package he obtains and leaving the EU. Governments in the past have also promised that the UK will not join the Eurozone without a referendum, and that the electoral system for elections to the House of Commons will not be altered without a referendum.

124  In drafting an amendment process, therefore, a referendum might be stated to be required in any three of the different models of codifying the constitution.

125  In establishing the status quo to be consolidated, whether in a non-legal Code (model A) or a consolidation Act (model B), there are now some persuasive precedents and these may be said to amount to a doctrine or convention as to when a referendum should be called. These include that a referendum should be called before any part of the kingdom is allowed to secede; before there is devolution of powers from the Westminster Parliament; when a wholly novel constitutional arrangement is proposed, including when an alteration is proposed in the machinery by which laws are made; before joining the Euro currency; before leaving the European Union; before altering the electoral system to the House of Commons; and before establishing directly elected mayors. In addition, there is already a legal requirement for a referendum to be called before there is a transfer of powers to the European Union under the 2011 European Union Act.

126  In the preparation of a written constitution (model C) with a specially designed amendment process, consideration should be given to whether the scope of a referendum requirement should extent to changes proposed to other parts, or all, of the document. The form and details of the referendum would need to be settled (on such matters as eligibility to vote, turnout, and thresholds), and their conduct made subject to the guidelines of the Electoral Commission. Unlike deliberative referendums, considered below, any requirement for a referendum as part of an amendment process would most likely be in the nature of formal ratification.

127  The key balance to be struck in the drafting of any written constitution is between flexibility and rigidity, taking into account the political culture of a country's government and Parliament. There are useful lessons to be learnt from studying the processes by which foreign countries, particularly in western European, north America, and the Commonwealth, have gone about adopting new constitutions and laying down amendment procedures.[965] However, while a variety of comparative models exist, the correct process for the United Kingdom would need to be determined by its own indigenous traditions and circumstances.

919   On comparative constitutions see Beau Breslin, From Words to Worlds (2009); S. Finer, V. Bogdanor and B. Rudden, Comparing Constitutions (1995); A. Heringa, P. Kiver, Constitutions Compared (2009); D. Lutz, Principles of Constitutional Design (2006); H. Bagchi, Inside Major Constitutions: An analytical, comparative, critical and selective treaties on five Constitutions - American, British, Indian, Soviet and Swiss (1969); B. B. Gupta, Comparative Study of Six Living Constitutions (1978); Henc van Maarseveen and Ger van der Tang, Written Constitutions: a computerized comparative study (1978); J. H. Price, Comparative Government (2nd ed. 1975). Back

920   See House of Lords Constitution Committee, Reviewing the Constitution: Terms of Reference and Method of Working, 2001-02, HL 11, para. 20. Back

921   See House of Lords Constitution Committee, Reviewing the Constitution: Terms of Reference and Method of Working, 2001-02, HL 11, para. 21. Back

922   As Beau Breslin has said, "Preambles often perform the task of isolating the polity's highest values", From Words to Worlds (2009), p.68, and is an opportunity to express the sovereignty of the people, as was famously expressed in the US constitution of 1787 ("We the people ..."). Back

923   The existence and importance of conventions to the working of the constitution is not, of course, a principle or value upon which a system of government is constructed. The codification of conventions is discussed below. Back

924   Sometimes the term "parliamentary sovereignty" has been used in an aspirational sense to suggest that the EU should not issue regulations directly applicable in the UK, particularly if they overrule some element of domestic law. However, the UK national Parliament's competence to withdraw from the EU remains intact, and meanwhile under the terms of its own Acts, notably the European Communities Act 1972 as amended, it has simply delegated regulatory powers to EU bodies (in the same way as Parliament has delegated law making powers to other tiers of government in the UK) and stated it intends EU law to prevail if a domestic statutory provisions is unintentionally incompatible. For discussion, see A. W. Bradley, " Sovereignty of Parliament - Form or Substance?", Ch. 2 in J. Jowell and D. Oliver (eds),The Changing Constitution (7th ed. 2011). A codified constitution would be an opportunity to more clearly stipulate the nature of the relationship between the UK and EU, setting down the boundaries and controls upon EU legislative competence in the UK. Back

925   Ancillary paper, The Existing Constitution. Back

926   For the most recent inquiry into the proposal for a UK Bill of Rights, see Independent Commission on a Bill of Rights, A UK Bill of Rights? The Choice before Us (Ministry of Justice, 2012). Back

927   Human Rights Act 1998 which incorporates into UK law the human rights code in the European Convention on Human Rights. Back

928   See House of Commons Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, 2012-13, HC 656. Back

929   See for example A. G. Noorani, Citizens' Rights, Judges and State Accountability (2002) and Constitutional Questions in India (2002). Back

930   The Law of the Constitution (1885; 10th ed. 1985), p.417. Back

931   Generally see Geoffrey Marshall, Constitutional Conventions (1984). Back

932   Conventions of the UK Parliament, 2005-06, HL 265-1, para. 279. Back

933   See Sir Ivor Jennings, The Law and the Constitution (5th ed.1959), p.136. Back

934   For example A. W. Bradley & K. D. Ewing, Constitutional and Administrative Law (15th ed., 2011). Back

935   On the conventions governing the monarchy for example, see Robert Blackburn, "Monarchy and the Personal Prerogatives", Public Law (2004), pp.546-563.  Back

936   Lord Wilson of Dinton, "The Robustness of Conventions in a Time of Modernisation and Change", Public Law (2004), pp.407f. Back

937   Cabinet Manual (Cabinet Office, 2011), and see above paras. 36-40. Back

938   For the current constitutional position, see Robert Blackburn, "The 2010 General Election Outcome and Formation of the Conservative-Liberal Democrat Coalition Government", Public Law (2011), pp.30-55; and House of Commons Political and Constitutional Reform Committee, Lessons from the Process of Government Formation after the 2010 General Election, 2010-12, HC 528. Back

939   See Commons Hansard, Debate on Arms to Syria, 11 July 2013, cols. 587-627. Back

940   For discussion see Robert Blackburn and Andrew Kennon, Parliament: Functions, Practice and Procedures (2nd ed., 2003), pp.763-766. Back

941   However, there are a small number of cases where a convention has been taken into account in legal proceedings: see Attorney-General v. Jonathan Cape [1976] QB 752; Madzimbamutov. Lardner-Burke [1969] 1 AC 645; Reference re Amendment of the Constitution of Canada (1981) 125 DLR (3d) 1 (Supreme Court of Canada). Back

942   Subject to the procedures in the Fixed-term Parliament Act 2011, s.2. Back

943   For general discussion, see A. W. Bradley, 'The Sovereignty of Parliament - form or substance?', Ch 2 in J. Jowell & D. Oliver (eds), The Changing Constitution (7th ed, 2011). Back

944   See Thoburn v. Sunderland City Council [2002] EWHC 195, [2003] QB 151; R (on the application of HS2 Action Alliance Limited) v The Secretary of State for Transport and another [2014] UKSC 3 at para. 208; and Sir John Laws, "Constitutional Guarantees" (2008) 29 Statute Law Review, p.1. Back

945   See Halsbury's Laws of England (5th ed.), Vol. 61: Judicial Review. Back

946   Scotland Act 1998, Northern Ireland Act 1998, Government of Wales Act 2006. Back

947   Human Rights Act 1998, s.4. Back

948   Human Rights Act 1998, s.4(6). Back

949   The government may do this by way of an Act of Parliament or by the Remedial Order procedure laid down in the Human Rights Act, s.10 and Schedule 2. Back

950   For Lord Hailsham's views on a written constitution, see his Elective Dictatorship (BBC, 1976) and The Dilemma of Democracy (1978); also Blackburn, Case Studies, W. Back

951   This procedure was adopted in Canada's Constitution Act 1982 for the purposes of its Charter of Rights and Freedoms, s.33 (1): "Exception where express declaration. Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 [fundamental freedoms] or sections 7 to 15 [legal and quality rights] of this Charter." Back

952   For a work of legal sociology of this issue, see J. A. G. Griffith, The Politics of the Judiciary (London, Fontana, 5th ed. 1997). Back

953   See Blackburn, Case Studies, A. Back

954   See the criticism and proposals of the House of Lords Constitution Committee, The Process of Constitutional Change, 2010-12, HL 177; and also Robert Blackburn, "Constitutional Amendment in the United Kingdom", Ch. 18 in Xenophon Contiades (ed.), Engineering Constitutional Change (2012). Back

955   Fixed-term Parliaments Bill, 2010-12, HC 436. Back

956   Fixed-term Parliaments Bill, 2010-12, HL 69. Back

957   The Code required that: (1) Formal consultation should take place at a stage when there is scope to influence the policy outcome. (2) Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible. (3) Consultation documents should be clear about the consultation process, what is being proposed, the scope to influence and the expected costs and benefits of the proposals. (4) Consultation exercises should be designed to be accessible to, and clearly targeted at, those people the exercise is intended to reach. (5) Keeping the burden of consultation to a minimum is essential if consultations are to be effective and if consultees' buy-in to the process is to be obtained. (6) Consultation responses should be analysed carefully and clear feedback should be provided to participants following the consultation. (7) Officials running consultations should seek guidance in how to run an effective consultation exercise and share what they have learned from the experience. (2008 ed.) Back

958   Cabinet Office, 17 July 2012; and Written Ministerial Statement, Government Consultation, HC Deb., 17 July 2012, col. 117WS. Back

959   A more proactive approach to public engagement in policy making has been urged by the House of Commons Public Administration Committee, making use of new techniques for public engagement (especially beyond vested interests and lobby groups) and digital technology: see Public Engagement in Policy Making, 2013-14, HC 75. Back

960   The view of the House of Lords Select Committee on the Constitution is that a minister should issue a written ministerial statement giving his view on whether a Bill he or she is presenting to Parliament provides for significant constitutional change; and that if so, it should also state what is the impact of the proposals upon the existing constitutional arrangements; whether and, if so, how the government engaged with the public in the initial development of the policy proposals and what was the outcome of that public engagement; in what way was were the detailed policies contained in the Bill subjected to rigorous scrutiny in the Cabinet committee system; whether a Green Paper was published, what consultation took place on the proposals, including with the devolved regional institutions, and the extent to which the government agree or disagree with the responses given; whether a White Paper was published and whether pre-legislative scrutiny was undertaken and the extent to which the government agree or disagree with the outcome of that process; what is the justification for any referendum held, or to be held, on the proposals; and when and how the legislation, if passed, will be subject to a post-legislative scrutiny. See The Process of Constitutional Change, 2010-12, HL177, pp. 24-25. Back

961   SO 37, Standing Orders of the House of Commons (Public Business) 2010 (New Parliament), HC 539. Back

962   s.2(1). Back

963   Parliament Act 1911, s.2(1). Back

964   As delegated legislation was not mentioned in the Parliament Acts 1911-49 (not being the common occurrence it became later in the twentieth century) the Lords' veto remained.  Back

965   Generally see X. Contiades (ed.), Engineering Constitutional Change (London: Routledge, 2012), and D. Oliver and C. Fusaro (eds.), How Constitutions Change (2011). Back

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Prepared 10 July 2014