7 Conclusions and recommendations
__________________________________________________________
Building blocks
and blueprints
188 The three illustrative blueprints set out
in Part II above show what the detailed form and contents of a
UK codified constitution might be. They reflect the three models
for a codified constitution addressed in this programme of research
(a Non-legal Constitutional Code, a Constitutional Consolidation
Act, and a Written Constitution). The drafting of these blueprints
have drawn on recent published proposals on the subject[991]
and precedents in other democratic constitutions including ones
in the Commonwealth based on the Westminster model of government.
189 The purpose behind preparing these blueprints,
and their utility to policy-makers in government and Parliament
as well as interested members of the public, is threefold. First,
it aims to take the debate on codifying the constitution beyond
general arguments into matters of practical detail, enabling a
more meaningful discussion of the problems and questions to be
addressed. Second, it serves to illustrate and visualise precisely
what the different forms of codification might be, when for some
it is difficult to conceive how the traditional constitution might
be committed into documentary form at all. Thirdly, the preparation
of these three different formats might be regarded as a building-blocks
process that needs to be gone through in the preparation of a
written constitution.
190 In other words, whilst each of the three
models considered are worthy of adoption in their own right as
a codified form of the constitution, for those wishing to move
towards a written constitution (as in model C), there is some
utility in first preparing the ground by agreeing the guiding
principles of the constitution (as in model A, a non-legal code),
and then collecting together the existing statutory, common law
and conventional institutions, powers and procedures that make
up our existing constitution (as in model B, a consolidation law
exercise), before embarking on the more ambitious task of preparing
a written constitution for the UK. For, as has proved the case
elsewhere,[992]
this building blocks approach to enacting a written constitution
can help facilitate agreement across conflicting views and attitudes
by separating out more clearly matters of consolidation from those
of reform in the process of selection, discussion and agreement
of its individual provisions.
Initiative, commencement
and the pre-condition of cross-party consent
191 The start of any process for codifying the
constitution is most likely to come from a commitment set down
in principle in a general election manifesto of one of the major
political parties which is then voted into office. Pressures behind
the adoption of such a policy, and for prioritising it for action
when in office, might come from a number of external sources,
among them an initiative in the nature of a Constitutional Convention
and/or some event affecting a core part of the political structure
acting as a catalyst and providing a sense of urgency to address
the UK's constitutional arrangements. This might arise from a
lack of clarity around some element of the constitution, or some
trauma affecting the structure and working of government.
192 In present circumstances pressure for a
codified constitution is unlikely to come from public opinion
itself, which apart from a small though influential number of
specialist interest groups, has a low salience of understanding
and interest in constitutional affairs. However, any proposal
to codify the constitution, particularly if it is to be set down
in a legal document, ought to be influenced by the values and
principles regarded as most important to the lives of ordinary
citizens, and should be legitimised through some formal process
of approval. All this suggests the need to initiate some strategy
for public information and engagement at an early stage of the
proposal.
193 As has been emphasised earlier, an essential
pre-condition to the task of codifying the constitution, whether
it is in the nature of models A, B or C, will be a political consensus
around its general desirability, and for the government to secure
cross-party agreement on the central elements and nature of the
document that is to be prepared. It would be counter-productive
to the unifying purpose of codification, and the prospect of it
enduring beyond the lifetime of the party in office, for it to
be unilaterally imposed by one party. Past precedents suggest
that informal methods of negotiation and dialogue are most effective
rather than formal conferences, and success relies on a pre-disposition
of the parties to reach agreement, facilitated by the personal
skills of those leading the negotiations on each side.
The preparation of a Constitutional
Code (Model A): the Cabinet Office
194 Under this model of codification, it is recommended
that the Cabinet Office prepare a first draft of the document,
building on its pre-existing guide to the laws, conventions and
rules on the operation of government set out in its Cabinet Manual.
It would need to substantially recalibrate the content of the
Manual, both in the style of drafting (more in line with articles
of principles than the minutiae of Whitehall practice), and extend
its scope to important areas of constitutional affairs currently
missing in the Manual, such as matters of citizenship, the law
of Parliament, the role of the judiciary, and machinery of justice.
195 If this Code were to be the final work on
codifying the constitution, then the Cabinet Office's draft should
be submitted to a Joint Committee of Parliament constituted for
the purpose to inquire into its accuracy, take evidence, and report
to both Houses. In conducting its inquiry it would be instructive
for the Committee to not only take expert evidence, but conduct
a public consultation exercise (including means of establishing
public opinion), with terms of reference making it clear that
the codification exercise was to consolidate existing principles
and elements of the constitution and not in any substantive way
change it.
196 The government should then consider any changes
recommended by the Joint Committee, provide a reasoned response
to them, and explain why or why not they are acting upon them.
The Prime Minister and Leader of the House of Lords should then
submit their revised Constitutional Code to each House of Parliament
respectively on a motion to take note and approve on a free vote.
This process should be repeated within the first session of each
new Parliament, providing the opportunity to amend the Constitutional
Code as conventions and practice evolved.
The preparation of a Consolidation
Act (Model B): The Law Commission
197 If the agreed nature of the method for codifying
the constitution were to be a consolidation of existing constitutional
law and practice, and no more, then insofar as such a document
would be a major Act of Parliament regardless of it changing nothing
or little of substance, it would be appropriate for the purpose
and scheme of the proposal, together with the reasoning behind
it and any problems and issues to be settled, to be set out in
an initial Green Paper, inviting public and parliamentary response.
The Green Paper should set out the government's intention that
the Law Commission take on this task of consolidation.
198 The Law Commission for England and Wales
has agreed with Professor Blackburn that it is a suitable vehicle
for the preparation of a documentary constitution of this nature.
In a letter to him from the Commission Chairman, Sir David Lloyd
Jones, of 19 June 2014 Sir David wrote that, "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".[993]
199 A White paper should follow, setting out
a timetable for production of the Bill and a commitment to present
it to Parliament at the earliest opportunity. The brief to the
Law Commission in its drafting and editing work, which will include
certain conventions though stated to be without direct legal effect,
should be to produce a document that contains the fundamental
elements of the constitution, reproducing no more statutory provisions
in its detail than essential to its task.
200 Operationally the project should be conducted
on a tripartite basis between the three Law Commissions in the
UK, with the Commission for England and Wales playing the lead
role. If thought necessary or desirable, a sub-committee on the
Constitution might be established for the purpose of carrying
out or assisting with this work, with a chairman and members expert
on constitutional law and practice being appointed, supervised
and reporting to the Public Law team manager and Chairman. In
all other respects, the process of drawing up the Consolidation
Bill should follow normal Law Commission practices.[994]
201 The draft Bill prepared by the Law Commission,
and submitted to the Justice Secretary, should be published for
scrutiny by Parliament. A Joint Committee should be established
for the task, taking evidence and preparing a report with any
suggested amendments. The government should then respond to this
Report, and present the Consolidation Bill to Parliament for its
consent in the customary manner. The legislative process agreed
for this Bill should ensure that it was possible to take expert
evidence during the committee stage in the House of Commons.[995]
The preparation of a Written
Constitution (Model C): a Commission for Democracy
202 The process by which a new constitution,
or written constitution containing any reforming elements, might
be prepared and implemented would clearly be more intensive and
complex than the other models considered, as it would symbolically
become the Constitution in the state, providing the basic
law and primary source of authority in the United Kingdom. The
level of political importance and legal significance of such a
document would make it essential that there was an extensive programme
of public engagement built into its design and implementation
process.
Option 1 - Constitutional Convention with popular
representation
204 A first option, placing special emphasis
on popular participation in the design of the document, would
be for a body containing members of the public to be established,
with its membership selected either through a process of direct
election from persons nominated or at random, as discussed earlier.[996]
The composition of this Constitutional Convention or Assembly,
however termed, could reflect similar constitution-building exercises
in other countries in recent times.[997]
Its membership might be 100 members, half being nominated representatives
of the parties (in proportion to national votes cast for them
at the previous general election), and half being members of the
public interested in participating (selected through a rigorous
process ensuring a geographical spread across the country and
using quotas in relation to age with gender, ethnicity, and socio-economic
status).
205 The proposal for a Convention of this nature
could be presented for approval in both Houses of Parliament with
terms of reference to consider and make recommendations on key
questions and options in drawing up the codified constitution.
Whether or not the motions for setting up the Convention were
made in the name of the government or a group of backbench Members
and peers respectively, it would need the support of the government
to guarantee its passage and to ensure it would willingly respond
to the Assembly's report. Government support, in turn, would largely
depend upon the willingness of the opposition leaders to co-operate,
since refusal to do so would undermine the authority of the Convention's
work. Considerable informal negotiations and talks in advance
of the parliamentary motions would be necessary.
206 It would be for the government in consultation
with the other parties to agree the working details of the Convention.
A suitable design might be for the chairman to be chosen by the
government after consulting the other parties, subject to a pre-appointment
hearing by a parliamentary committee. It would be desirable for
the government to give an undertaking during the debate on the
resolution setting up the Convention that it would respond to
the Convention's recommendations within a specified time frame,
such as four months, by way of a ministerial statement to Parliament
and a published paper indicating those areas where it agreed or
disagreed with the Convention's recommendations. The government
would then proceed to have a draft of the documentary constitution
drawn up and presented to Parliament.[998]
Option 2 - A statutory Constitutional Commission
211 A second option would be for the government
to bring forward a Bill to create a permanent statutory Constitutional
Commission, which as its first task would be the design and preparation
of a draft constitution for the UK.[999]
A body of this nature could be constructed in similar fashion
to the Electoral Commission, having up to twelve independent Commissioners
including a Chairman formally appointed by the Queen, following
an Address from the House of Commons, and a selection process
supervised by a Speaker's Panel, with four of the Commissioners
being nominated by the political parties. The tenure and conditions
of office for the Chair and ordinary Commissioners would be settled
in the legislation establishing the Commission,[1000]
as would its other permanent functions and resources.
Option 3 (Recommended) - A Commission for Democracy
212 However, it is recommended that the most
suitable way forward would be for a Commission for Democracy to
be set up under ministerial authority for the purpose, following
cross-party talks reaching consensus on its general aims, form
of composition, and method of working.
213 If a government wished to accomplish its
aim of a written constitution within its own lifetime, or that
of a five year Parliament, this would be a more expeditious process
than a statutory body. A government Bill to set up a Commission
for this purpose would inevitably arouse extensive debate in both
Houses of Parliament and in its committees on the whole subject
of a written constitution, opening up the possibility of the whole
process becoming so protracted that the work involved becomes
derailed or paralysed before work has even started. This does
not mean that the role of Parliament should be circumvented in
the process, but that the participation, influence, and agreement
of both Houses and their members is best performed during the
extensive debates that would take place on the Bill and draft
written constitution itself.[1001]
214 Furthermore, whilst it is agreed that a permanent
Commission with broad responsibilities with respect to the constitution
is desirable, if the Commission for Democracy succeeded in its
task of designing and securing parliamentary and electoral approval
to its draft written constitution, the terms of the new Constitution
itself could make provision for the Commission for Democracy to
become permanent, with new functions conferred upon it (such as
to keep the working of the constitution under review, report and
make recommendations to Parliament, and the duties set out in
the illustrative blueprint in Part II[1002]).
215 The Commission for Democracy would relieve
the government of what would be a highly time-consuming and complex
task, most likely undertaken at a time when most of the electorate
perceived there to be other higher priorities relating to the
economy and financial affairs, while maintaining the government's
involvement and trust in the process and outcome.
216 Its title of "Commission for Democracy"
would serve to emphasise that the preparation of a written constitution
was part of a broader process to improve the quality of our political
democracy and level of popular engagement in the governance of
the United Kingdom.
217 The Commission would need sufficient resources
for a secretariat and to establish effective sub-committees. One
such sub-committees could provide expert advice and research on
constitutional and legal questions arising, and another could
design and organise its process of public engagement, consultation
and opinion gathering.[1003]
Members on the sub-committees could be seconded or recruited from
government departments, Universities or professional bodies, as
the Commission thought best equipped and appropriate. Lawyers
from the office of parliamentary counsel could support the work
of a commission in the drafting of the legal document.
215 The range of core questions to be considered
by the Commission for Democracy would include the elements of
content identified and discussed earlier.[1004]
These include matters of entrenchment, such as the extent to which
the judiciary should be given responsibility for enforcing the
constitution, and the circumstances in which a referendum of the
electorate should take place in any amendment process adopted.
216 In addition, the Commission would need to
inquire into issues of constitutional modernisation that have
stalled in recent times, such as a final settlement for the House
of Lords and a British Bill of Rights. So long as the Commission
for Democracy, assisted by its sub-committees, conducted a thorough
and systematic process of public engagement and public opinion
gathering, it should be able to command a special authority on
these questions.
217 The final stage of the Commission's work,
assisted by the Office of Parliamentary Counsel, would be for
the agreed content for the Constitution to be set out in a draft
Bill presented to the House of Commons, providing for its introduction
as the Constitution for the United Kingdom. This should be in
the form of an Act of Parliament with the text of the Constitution
set out in its Schedule. A draft Bill of what this might be is
set out below.
218 A referendum would be necessary to bring
the new Constitution into effect, not only to exhibit the electorate's
approval of the idea and content of the written constitution,
but to confer moral legitimacy upon it, especially as the Constitution
would be establishing itself as the primary authority in the state.
Certain other formalities would be necessary or desirable to reinforce
its authority, which should include amending the form of the Oaths
taken by principal public office-holders, including ministers,
parliamentarians, and members of the judiciary, so that henceforth
they swear to uphold the provisions of the Constitution.
****
A
BILL
to
Provide for a referendum
on a documentary Constitution for the United Kingdom, and subject
thereto to provide for its entry into force.
Whereas the good governance
of the four nations of England, Wales, Scotland, and Northern
Ireland, constituting a United Kingdom, has evolved over many
centuries, guided by principles of civil liberty, the rule of
law, and parliamentary representation; with landmarks in its constitutional
history that include the Magna Carta 1215, the Petition of Rights
1628, the Habeas Corpus Acts, the Bill of Rights 1688, the Acts
of Union, the Representation of the People Acts, and the 1998
legislation starting the process of devolution to Wales, Scotland
and Northern Ireland; the country has progressed into a democracy
founded upon civic values of tolerance, equality, and mutual respect;
the people of the United Kingdom now desire a new settlement that
codifies the Constitution of the country, for the purpose of greater
transparency and openness in government, the greater inclusion
of all citizens of the United Kingdom in the political process,
and greater stability in its governance and constitutional arrangements.
BE IT ENACTED by the
Queen's most Excellent Majesty, by and with the advice and consent
of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:
—
PART I
REFERENDUM
ON THE CONSTITUTION
1. A referendum
shall be held to approve the Constitution, set out the Schedule.
2. The referendum
question on the ballot paper shall be - "Are you in favour
of the proposed Constitution for the United Kingdom?"
3. The referendum
shall be held on 14th day of June 2019.
PART II
ESTABLISHMENT
OF THE CONSTITUTION
4. Subject to a
majority of those voting in the referendum being in favour of
the Constitution, the Constitution shall take effect and become
the fundamental law of the United Kingdom in accordance its terms
and provisions.
PART III
GENERAL
5. Subject to section
4, the date of the Constitution entering into force shall be the
14th day of September 2019.
6. In this Act, the
term "Constitution" means the document set out in the
Schedule.
7. This Act may
be cited as the Constitution of the United Kingdom Act 2015.
SCHEDULE
[Constitution
of the United Kingdom]
****
991 In particular those from the Institute for Public
Policy Research, John Macdonald QC, Professor Vernon Bogdanor
and Richard Gordon QC. For discussion see Literature Review. Back
992
For example see the case of Switzerland: Blackburn, Case Studies,
N. Back
993
For a fuller extract from the Letter see Part III, 3, para 65. Back
994
See Blackburn, Case Studies, C. Back
995
In other words, there would need to be cross-party agreement reached
in the House of Commons on the allocation of which clauses at
committee stage were taken by the whole House, being the conventional
committee stage for bills of first class constitutional importance,
and those by a public bill committee enabling the taking of oral
and written evidence. Back
996
Paras. 55-58. Back
997
See paras. 177-180, and Blackburn, Case Studies, M, O and
Q. Back
998
The agency conducting the work could be the Law Commission (see
Blackburn, Case Studies, C) or an ad hoc commission established
specially for the purpose directly responsible to the Justice
Secretary or operating as a sub-committee of the Law Commission. Back
999
See para. 67. Back
1000
See the Political Parties, Elections and Referendums Act 2000,
Part I, for the statutory framework for the Electoral Commission. Back
1001
Parliamentarians, individually and its committees, would also
be involved in the consultation processes undertaken by the Commission. Back
1002
Part II, 3 Written Constitution, Article 51. Back
1003
On the deliberative processes that might be used, see above Part
6 above, Blackburn, Case Studies, U and V. Back
1004
See Part 4 above.
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