Does the United Kingdom need a codified constitution? It’s a question on which generations of law students will have had to write essays, burning the midnight oil and scribbling or tapping away into the night, rehearsing the pros and the cons. But I want it to be something else: the start of a lively and passionate public debate that could result in real change to our country’s democratic set-up.
Parliament’s Political and Constitutional Reform Select Committee, which I chair, has just launched a major consultation which aims to do just that—get people to think properly for the first time about whether having the political rulebook written down in one place might actually be a positive development for our democracy.
The consultation follows on from a unique four-year project which has seen the Committee working collaboratively with King’s College London. At the end of July, we published the results of this work in a report called A new Magna Carta? The report represents the most comprehensive attempt to date to provide different detailed models of a codified constitution for consideration and comparison. It includes three illustrative blueprints that show what form a codified constitution could take:
- A constitutional code: a document sanctioned by Parliament, but without statutory authority, and which would set out the essential existing elements and principles of the constitution and the workings of government.
- A constitutional consolidation Act: a consolidation of existing laws of a constitutional nature, the common law and parliamentary practice, together with a codification of essential constitutional conventions.
- A written constitution: a document of basic law by which the United Kingdom would be governed, setting out the relationship between the state and its citizens, including an amendment procedure and some elements of reform.
There have been previous attempts to produce illustrative constitutions for the UK. Among the notable examples are O. Hood Phillips QC (1970), Lord Hailsham (1976), Frank Vibert (1990), John Macdonald QC (1990), Tony Benn (1991), and the Institute for Public Policy Research (1991). Professor Robert Blackburn, who created the blueprint constitutions on the Committee’s behalf, has drawn on some of these previous attempts, and in presenting different options he has moved the debate forward. The blueprints can be regarded as standalone documents, in the sense that each is an example of a particular approach to codifying the constitution, or as three stages, resulting in a fully codified constitution.
The process of codification
In addition to the blueprints, the report contains a paper setting out the process that could be adopted in the preparation, design and implementation of a codified constitution. Using the three blueprints, the paper suggests that different models of codification would require different processes. The paper recommends that in the case of the constitutional code, “the Cabinet Office prepare a first draft of the document, building on its pre-existing guide to the law, conventions and rules on the operation of government set out in its Cabinet Manual.” For the Constitutional Consolidation Act, the paper recommends “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 suggestion is then that the Government ask the Law Commission to carry out the task of consolidation. In a letter to Professor Blackburn, Sir David Lloyd Jones, the Chairman of the Law Commission of England and Wales wrote: “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.”
In the case of a fully-fledged written constitution, the paper suggests 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.” Its initial task would be to draw up a written constitution, which would then be subject to political and popular approval. But a Commission for Democracy could also be a permanent part of our society, with a remit to improve the quality of our political democracy and enhance engagement.
Of course, an essential pre-requisite to any of these processes would be cross-party agreement that codification was necessary. I believe that that agreement might be closer than people think. This is a very opportune moment to be revisiting and revitalising the debate on codification. We are living through a period of considerable constitutional change. During the past 20 years, under Governments of different political stripes, significant developments have included the removal of most hereditary peers from the House of Lords, freedom on information legislation, the establishment of the Supreme Court, the introduction of fixed-term Parliaments, and the domestic legal entrenchment of human rights. There has been devolution in Scotland, Wales and Northern Ireland, but there is still suffocating over-centralisation in England, with local government acting merely as the delivery arm of central Government. The United Kingdom itself is under stress. We’ve also had our first collation Government in recent times. Some constitutional flexibility is a good thing, but I believe it’s also important that people have somewhere to go where they can find and understand the country’s constitutional arrangements—the framework within which change is taking place.
Evidence of disengagement with mainstream politics is all around us. It can be seen in turnout rates for recent elections and the rise in support for what is essentially an anti-politics party. People don’t feel that politicians represent their views or understand their lives. But I don’t think people are apathetic about politics. They care passionately about local and global issues. They just feel that the world of mainstream politics is remote, inaccessible, and frankly sometimes incomprehensible.
A codified constitution wouldn’t solve all these problems. But it would be a start. It would mean that for the first time in the history of our country people would be able to go to one document to find the rules that govern how the state exercises power in our democracy. I hope that, in time, the constitution would become a tangible source of national pride. Every school child would know where to find it.
The Select Committee’s consultation, which runs until 1 January 2015, is asking people firstly for their views on whether the UK needs a codified constitution. It then asks for feedback on the three blueprint constitutions that we have published. We are also interested in hearing what people think should be included in or excluded from a codified constitution and their views on the paper about the process of creating a codified constitution. Responses can be submitted via our website: www.parliament.uk/new-magna-carta-consultation They can be as short as a few sentences or as long as 3,000 words, and they can focus on one aspect of the debate, or many. We’ll be publishing the responses we receive as written evidence on our website as the consultation progresses, so there will be a chance to see the contributions that have already been submitted. After January, we will be working on a report so that we can present the responses to Government ahead of the general election.
Alongside the consultation, the Committee is running a competition to write a rousing 350-word preamble to a codified constitution for the United Kingdom. My attempt is available to read on our website, along with other entries we have received. I’m sure that, as constitutional lawyers, you’ll be able to do a better job than I did and I urge you to have a try. Entries can be submitted via our website: www.parliament.uk/pcrc-preamble
As we approach the 800th anniversary of Magna Carta, this is a once-in-a-lifetime opportunity to shape the future of our democracy—to look forward, as well as back—and to have your say on what the next 800 years should look like. Please read our report on A new Magna Carta? and take this chance to get involved.
Graham Allen is Member of Parliament for Nottingham North, and Chair of the Political and Constitutional Reform Committee.
Suggested citation: A. Allen, ‘Kick-starting the debate on a codified constitution for the UK’ U.K. Const. L. Blog (14th August 2014) (available at http://ukconstitutionallaw.org).