A new Magna Carta? - Political and Constitutional Reform Contents

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.





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: —



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.



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.



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.


[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 ReviewBack

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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Prepared 10 July 2014