Consultation on A new Magna Carta? - Political and Constitutional Reform Contents


2  Themes from consultation responses

28. The Committee's work on codification throughout this Parliament was intended to 'map the path' to codification—or non-codification—of the UK's uncodified constitution. The work the Committee has undertaken, in partnership with King's College London, has resulted in an extensive description of the constitutional landscape, with three blueprints which provide a coherent explanation of the UK's existing constitutional arrangements, and a series of comprehensively researched and well-argued papers which have reviewed the constitutional literature,[16] examined the existing constitution,[17] the case for and against codification,[18] international comparisons of constitutional drafting,[19] and considerations to be taken into account in the design, preparation and adoption of a codified constitution in the UK context.[20]

29. Having mapped these paths, we established, through the Committee's public consultation and associated activities, a broad space for all interested parties to have their say on the blueprints published by the Committee and the desirability or otherwise of constitutional codification. The wealth of opinion and information we received by way of response, both through formal submissions and via responses to the Committee's online survey, has been highly encouraging. The level of response demonstrates, should there have been any doubt, that there is a substantial appetite beyond legal and academic circles for deliberation and debate on matters of constitutional codification and constitutional reform, and that these issues are of far broader interest to the general public than might generally be assumed.

30. Given the breadth and number of submissions received in response to the Committee's exercise, we do not propose to publish a unified response which takes into account all the points made and issues raised. We have nevertheless identified a number of issues and themes emerging from the responses, which we discuss briefly below.

31. The submissions received fell into a number of broad categories:

·  Arguments for, or against, the principle of constitutional codification;

·  Preferences for one or other of the blueprints published by the Committee, or for the status quo;

·  Commentary on specific aspects of the blueprints;

·  Proposals for amendments to one or more of the blueprints;

·  Discussion of the principles on which a codified constitution should be based, and where the boundary between constitutional law and statute should be drawn, and

·  Proposals for alternative forms of codification, including alternative written constitutions.

32. There was a general welcome for the Committee's exercise. The Constitution Society, an educational foundation established to promote informed debate on constitutional issues, stated that

    The questions of whether the UK should adopt a written constitution, how it should go about doing so, and what it might include have received significant levels of academic interest over the years. However, they have not previously been the subject of sufficient consideration at political level.[21]

It described the Committee's work as valuable, and also timely, given the "almost constant practice" of constitutional change in recent years, "often without adequate consultation or due consideration of the implications".[22]

33. Nevertheless, a number of responses did criticise the premise of the exercise and the necessity of any kind of constitutional codification, praising the flexibility of present constitutional arrangements and arguing that there was no need for change or codification.[23]

Is the time right for constitutional reform?

34. There is undoubtedly more discussion of democratic issues than when we first set out on this task. The campaign around the independence referendum in Scotland, the drive for devolution in England, interest in the UK's relationship with the EU and voter participation are among the issues now firmly on the political agenda.

35. While the seismic constitutional change which would have accompanied a vote for independence for Scotland in the September 2014 referendum has not come to pass, the promises made to voters in Scotland by the major pro-union UK parties before the referendum have set in train a process which will result in further constitutional legislation in 2015 and a very substantial change in the structure of the Union. Agreement has since been reached on changes to the devolution settlement in Northern Ireland and further changes to the settlement for Wales, over and above the provisions of the Wales Act 2014, are promised.

A CONSTITUTIONAL CONVENTION FOR THE UK

36. The concept of a constitutional convention for the UK to discuss and make proposals on these issues has been subject of much discussion: this Committee looked at the case for a constitutional convention as early as 2012, and in March 2013 we recommended that the Government examine the case for a convention to look at the future constitutional structure of the UK.[24]

37. Two of the three main parties are now publicly committed to a constitutional convention after the 2015 general election, and the third has acknowledged the possibility that a convention .may be held. The Labour Party has announced plans for a constitutional convention in the autumn of 2015 "to determine the UK-wide implications of devolution" and "to discuss the shape and extent of English devolution and what reforms are needed in Westminster, as well as the case for a regionally representative Senate or for codifying the constitution. Major recommendations would then by debated by Parliament."[25]

38. The Liberal Democrat position was set out in the Command Paper on The Implications of Devolution for England in December 2014:

    [T]he Constitutional settlement of the UK has been transformed since 1997. […] Given this, the time is right for a Constitutional Convention to discuss the relationship between the constituent parts of the UK and also to explore the values and principles which bind us together.

    A Constitutional Convention should be composed of representatives of the political parties, academia, civic society and members of the public. The Convention should be led by an independent Chair agreed by the leaders of the three main political parties. The remit of the Convention should be decided by parliament through legislation, if possible on a cross party basis. The Liberal Democrats believe this should include the consideration of the appropriate level for political decision-taking in the UK, the powers of the devolved administrations, the interactions between the different institutions of the UK and the voting rights of MPs. The working practices and way in which it chose to approach the remit should be decided by the Convention itself.

    The Liberal Democrats believe that a Constitutional Convention should be legislated on at the earliest possible opportunity so its work can start as soon as possible. We would expect the next Government to recognise and engage with the outcome of the Convention and put its proposals to a binding vote of parliament in the most appropriate possible way.[26]

39. In the same Command Paper, the Conservative Party set out its position on a constitutional convention:

    The Conservative Party believes that any future constitutional convention or commission should be concerned with the effective working of the constitutional arrangements for each part of the Union, including the new arrangements for England, to build a better and fairer settlement within our United Kingdom.

    Such a body could consider the case for a 'Statute of the Union' to enshrine and reinforce the constitutional arrangements for each part of the Union, and to assist in achieving a stable, long-term settlement across the United Kingdom.

    The establishment of any such convention or commission should not delay the implementation of the Smith Commission in Scotland and equivalent changes in the rest of the United Kingdom, including the introduction of English Votes for English Laws, or English and Welsh Votes for English and Welsh Laws.[27]

A 'CONSTITUTIONAL MOMENT'?

40. Perhaps the "constitutional moment", which in quieter times some believed was a prerequisite for change, is now close at hand. Professor John McEldowney, Professor of Law at the University of Warwick, argued in his submission that the moment which would precipitate large-scale change to, and codification of, the UK's constitution, was indeed now imminent:

    It is argued that the defining moment has arrived in the aftermath of the Scottish referendum and proposed increased powers to Scotland, Wales and Northern Ireland as well as to the English regions, including changes to local government. There are also profoundly important consequences in the role of the UK Supreme Court in respect of devolution issues. Additionally plans to amend/abolish the Human Rights Act 1998 and the question of holding a referendum on membership of the European Union are important policy decisions that have major constitutional implications. Reform of the House of Lords in the direction of a wholly elected chamber will also profoundly change the nature of the Constitution.[28]

41. The question of whether the UK is approaching a 'constitutional moment' was also discussed at the Committee's conference on 11 December 2014, where Professor Vernon Bogdanor and Professor Dawn Oliver both addressed the issue.[29]

42. The President of the Supreme Court, Lord Neuberger, has suggested in a recent speech[30] that substantial constitutional change may be approaching, and that there are powerful arguments in favour of adopting a written constitution: a constitution would presumably "have primacy over decisions of the Human Rights Court in Strasbourg and even those of the EU Court in Luxembourg", and fundamental constitutional principles would prevail over any decisions of the ECHR or ECJ inconsistent with them, an approach which, for example, the German Constitutional Court has shown itself ready to take in respect of the principles of the German constitution. Lord Neuberger went on to suggest that any substantial change to the UK's constitutional arrangements would strengthen the case for codification and the drafting of a written constitution:

    We have a proud and successful history with a pragmatic, rather than principled, approach to law and legal systems, and we have managed pretty well without a constitution. But times change, and the fact that we managed well without a constitution in a very different world from that which we now inhabit may be a point of limited force when applied to the present. So long as things remained much the same, the argument based on the status quo was hard to resist. However, if, and it is a big "if" which is ultimately a political decision, our system of government is going to be significantly reconsidered and restructured, there is obviously a more powerful case for a written constitution. Writing a constitution may help focus minds on the details of the restructuring, and, once the restructuring has occurred, a new formal constitution should provide the new order with a clarity and certainty which may otherwise be lacking.

43. We also received submissions arguing that a "constitutional moment" has not been reached, or that political conditions were not right form the introduction of a new constitutional settlement., Sir Stephen Sedley, Visiting Professor of Law at the University of Oxford, told us that consensus on a new constitution could only be reached "when a society embarks on a genuinely new beginning", the exemplar being post-apartheid South Africa: he saw no signs of such developments in the UK.[31] Lord Owen argued that since "the party political debate in the UK is more fragmented and unstable at present than even in the 1930s", any new constitution would need a more settled political environment to develop.[32]

44. The changes to the Union which are proposed following the result of the Scottish referendum, along with changes to the devolution settlements for Wales and for Northern Ireland, together represent a significant change to the UK's constitutional arrangements. At the forthcoming general election, parties will be seeking support for manifestoes which will undoubtedly entail forms of constitutional change. Taken together, the potential for substantial constitutional reform in the new Parliament is significant. It is vital that the process of any such change is properly assessed in advance and the implications of constitutional change are assessed in the round. Drafting a codified constitution which sets out clearly and coherently the settlement envisaged as a result of constitutional change would be a sensible approach to any major constitutional reform.

Is a written constitution necessary?

45. Many responses to the consultation have supported the general proposition that codification is desirable, adducing many of the reasons set out by Professor Blackburn in the paper setting out arguments for and against which we published with our initial report. Several went further and argued in favour of a written constitution. Among the reasons cited in support of a written constitution are those of basic fairness—the accessibility to all citizens of an authoritative text of basic law. It was argued that a written constitution would make Government more accountable to Parliament and the electorate, and could make a separation of the powers in the state more effective. Some suggested that a written constitution would arrest the capacity of the executive, working through the legislature, to enact substantial constitutional reform in a piecemeal fashion without effective consultation or proper consideration of how such changes would operate: a written constitution with a clear procedure for amendments could provide a check on such tendencies.

46. Submissions against codification in general, and a written constitution in particular, argued that the present system was sufficiently flexible and that any form of written constitution would hamper swift and efficient change to the constitution where this was deemed necessary.

47. The submission from Sir Stephen Laws, former First Parliamentary Counsel, argued that the UK had an effective political constitution, which was "more authentic, more democratic and more radical" than a written constitution "enshrined in law and regulated by the judiciary".[33] He suggested that the real mischief in the present system was a lack of transparency in its operation, which in turn distorted the accountability in the political process which the political constitution required to operate: there might be something to be gained from setting out "the framework of principles within which governments propose to set decision-making" in a form which would not be justiciable.[34] The Better Government Initiative, "an informal body made up of people with practical experience in government at a very senior level", argued that recent and proposed constitutional changes were, in their volume and their scale, "beyond the capacity of an evolutionary "unwritten constitution" to manage", though they argued that what was required was an agreed and properly managed process for constitutional change, rather than a process of codification.[35]

48. Some respondents argued for a simpler form of written constitution, expressing basic values and leaving detailed arrangements to be worked out in primary legislation. Richard Hannam told us that a constitution should confine itself to high-level themes and principles, establishing institutions but not governing how they operate.[36] Jack Steiner said that a more concise draft should be prepared, in simpler English, to improve the accessibility of the constitution on a broader scale.[37]

Should codification start from here?

49. Several respondents expressing support for codification indicated that the written constitution draft ought to be amended (either in general terms or in detail) to provide clarity or to introduce elements of reform which they believed desirable.

50. A number of respondents who were generally in favour of a written constitution considered that consensus needed to be achieved on some broad political and constitutional questions before moving to codification. Among the issues most frequently identified for further work were devolution (where there was some support for moving to federated arrangements for the UK), reform of the House of Lords and reform of the voting system for the House of Commons.[38]

51. Equally, a number of proponents of a written constitution were against any attempt to codify the existing constitutional arrangements in a documentary constitution: one submission argued that none of the blueprints offered an acceptable basis for a written constitution, and that the existing arrangements should be swept aside in favour of a more radical settlement.[39] Several submissions argued that the constitutional doctrine of Parliamentary sovereignty, or the sovereignty of the Crown in Parliament, ought to be explicitly repudiated and replaced by an acknowledgment of popular sovereignty expressed in a written constitution.[40]

52. A number of respondents offered their own proposals for constitutional texts or for alternative systems of government.[41] Some respondents criticised the form of the written constitution blueprint, considering that it did not address new and emerging power structures and that it should include provision (for example) for civil society participation, control of markets, and budgetary discipline.[42] Professor Justin Champion, of Royal Holloway, University of London, made a trenchant critique of codification of the status quo:

    Most of the long established principles and historical elements of the current system have much to do with the regulation and preservation of dynastic monarchical settlement rather than a set of constitutional values that are the expression of civic partnership or collective convention. More time is spent deciding who gets to rule and how, rather than 'why and what for?'[43]

    In practical terms, starting with a public debate, but conducted in localities, about a fundamental question, would be helpful-"what's government for?" Engaging as many voices in such a discussion would be a powerful ambition. Having established a set on answers, it then might be suitable to progress to a follow up discussion, along the lines of, 'How do processes and political institutions enable, achieve those purposes?'. Such public discussion would encourage public participation and develop a genuine civic character to the principles of political life.[44]

How should codification be approached?

53. Those in favour of some form of codification nevertheless had varying views on how it should be approached. While there was broad support for some form of convention to determine the principles to be enshrined in a written constitution and to draft its provisions, some were concerned that the process of constitutional change might be subject to the whims of a party with a parliamentary majority.[45]

54. There were some submissions in favour of the 'building-block' approach to constitutional change, which was one model advocated by Robert Blackburn: under this model, agreement might be reached on core constitutional principles expressed in a constitutional code, and that consensus could be used as the basis for further development of codification, though a consolidation of constitutional legislation or a written constitution.[46]

Our view

55. In our original report we presented the arguments for and against constitutional codification and a written constitution, to assist those considering the matter to make up their minds one way or the other. While the balance of views expressed to us favours some form of codification in general, and a written constitution in particular, we do not propose here to endorse or to amend one particular model or blueprint. Our purpose has been to set out the arguments and to illustrate how codification might be achieved.

56. As Professor Blackburn has made clear in his paper on the design and implementation of a codified constitution, the initiative for codification lies with the executive.[47] The involvement, for the first time, of a parliamentary committee in inquiring into the basis of the UK's constitutional arrangements and illustrating options for codification has received a broad welcome. The practical illustrations we have provided, together with the informed commentaries on the exercise, should serve as a resource for an incoming administration which has constitutional codification as a policy priority: much of the practical work of examination and description of the existing constitutional arrangements has been achieved.

57. As vital as the debate about whether and how to codify the constitution is the debate about what constitutional arrangements it is desirable to codify. The three illustrations of models of codification which we published have been grounded in practical politics and the maintenance, as far as possible, of the status quo: where the written constitution blueprint described elements of reform, it did so on the basis of existing proposals for reform. We deliberately did not set out to propose constitutional codification allied with radical constitutional reform, but we recognise that an element of constitutional change may well be necessary in any process of codification. Moreover, we recognise that the broadest possible public debate about constitutional alternatives must form the basis of any process of large-scale constitutional change which genuinely seeks the engagement and consent of the public.

58. We consider that the public is entitled to know the processes by which it is governed and the fundamental rules on which the constitution is based. Broader knowledge of the UK's existing constitutional arrangements will lead to more informed debate on constitutional issues. A simpler, more accessible constitutional text will contribute greatly to more informed public debate, and we set out below our contribution to this ongoing debate.


16   Centre for Political and Constitutional Studies, King's College London, Codifying - or Not Codifying - the United Kingdom Constitution: A Literature Review, Series Paper 1, February 2011 Back

17   Centre for Political and Constitutional Studies, King's College London, Codifying - or Not Codifying - the United Kingdom Constitution: The Existing Constitution, Series Paper 2, May 2012 Back

18   Centre for Political and Constitutional Studies, King's College London, Arguments For and Against Codifying the UK Constitution, Part I of Mapping the Path to Codifying - or Not Codifying - the UK Constitution, published as an appendix to Political and Constitutional Reform Committee, Second Report of Session 2014-15, A new Magna Carta?, HC 463, pp 19-28 Back

19   Centre for Political and Constitutional Studies, King's College London, Case Studies on Constitution Building, July 2014 Back

20   Centre for Political and Constitutional Studies, King's College London, The Preparation, Design and Implementation of a Codified UK Constitution, Part III of Mapping the Path to Codifying - or Not Codifying - the UK Constitution, published as an appendix to Political and Constitutional Reform Committee, Second Report of Session 2014-15, A new Magna Carta?, HC 463, pp 19-28 Back

21   The Constitution Society (AMC 0088), para 4 Back

22   The Constitution Society (AMC 0088), para 6 Back

23   See, for example, Hannah Hewson (AMC0030). Back

24   Political and Constitutional Reform Committee, Fourth Report of Session 2012-13, Do we need a constitutional convention for the UK?, HC 371 Back

25   A Constitutional Convention for the UK, Labour Press, 19 September 2014 Back

26   Cabinet Office, The Implications of Devolution for England, Cm 8969, December 2014, pp 31-32 Back

27   Cabinet Office, The Implications of Devolution for England, Cm 8969, December 2014, p. 27 Back

28   Professor John McEldowney (AMC 0151Back

29   See Appendix 2  Back

30   Lord Neuberger, The UK Constitutional Settlement and the Role of the UK Supreme Court, speech to the Legal Wales Conference 2014, Bangor, 10 October 2014. Back

31   Sir Stephen Sedley (AMC0146) Back

32   Rt Hon Lord Owen (AMC0094) Back

33   Sir Stephen Laws KCB (AMC0150), executive summary and para 65 ff. Back

34   Sir Stephen Laws KCB (AMC0150), executive summary and para 109 Back

35   Better Government Initiative (AMC0113), para 4 Back

36   Richard Hannam (AMC0032), section 2 Back

37   Jack Steiner (AMC0112), paras 9-10 Back

38   See, for example, Stephen Barber (AMC0036), Mark Harrison (AMC0055), David Weaver (AMC0056), Andrew Brown (AMC0085), Daniel Goodwin (AMC0097), Daniel Webster (AMC0125) and Anthony Tuffin (AMC0168) Back

39   Michael McCarthy (AMC0091) Back

40   For example, Michael McCarthy (AMC0091), students of Manchester Metropolitan University (AMC0095), Republic (AMC0138), Lawrence Serewicz (AMC0145) Back

41   For example, Ryan Doyle (AMC0020) and Ed Straw (AMC0105). Back

42   For example, Frank Vibert (AMC0026) Back

43   Professor Justin A.I. Champion (AMC0137), para 6 Back

44   Professor Justin A.I. Champion (AMC0137), paras 9-10 Back

45   For example, The Constitution Society (AMC0088), John J Blanche (AMC0107) Back

46   For example, INLOGOV (AMC0106). For Robert Blackburn's proposal, see the Introduction to Centre for Political and Constitutional Studies, King's College London, Three Illustrative Blueprints, Part II of Mapping the Path to Codifying - or Not Codifying - the UK Constitution, published as an appendix to Political and Constitutional Reform Committee, Second Report of Session 2014-15, A new Magna Carta?, HC 463, p. 29  Back

47   Centre for Political and Constitutional Studies, King's College London, The Preparation, Design and Implementation of a Codified UK Constitution, Part III of Mapping the Path to Codifying - or Not Codifying - the UK Constitution, published as an appendix to Political and Constitutional Reform Committee, Second Report of Session 2014-15, A new Magna Carta?, HC 463, p 363 Back


 
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Prepared 9 March 2015