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11 Mapping the Path towards Codifying - or Not Codifying - the UK Constitution ROBERT BLACKBURN, PhD, LLD, Solicitor Professor of Constitutional Law Centre for Political and Constitutional Studies King's College London PROGRAMME OF RESEARCH Aims This programme of research has been prepared at the formal request 1 of the House of Commons Political and Constitutional Reform Committee chaired by Graham Allen MP to assist its inquiry, and the policy debate generally, on the proposal to codify - or not - the UK constitution. The work been prepared in an impartial way, adopting a pragmatic approach to the issues involved, and does not seek to advocate either codification or non-codification. Its purpose is to inform the inquiry of the issues involved and, in the event that a government in the future might wish to implement such a proposal, it seeks to provide a starting point and set of papers to help facilitate the complex and sensitive issues of substance and process that would be involved. Structure of the Research The content starts (Part I) by identifying, and giving a succinct account of, the arguments for and against a written constitution, prepared in rhetorical manner. It then (Part II) sets out a series of three illustrative blueprints, prepared in the belief that a consideration of detailed alternative models on how a codified constitution might be designed and drafted will better inform and advance the debate on the desirability or not of writing down the constitution into one documentary source. These are - (1) Constitutional Code - a document sanctioned by Parliament but without statutory authority, setting out the essential existing elements and principles of the constitution and workings of government. (2) Constitutional Consolidation Act - a consolidation of existing laws of a constitutional nature in statute, the common law and parliamentary practice, together with a codification of essential constitutional conventions September 2010.
12 (3) Written Constitution - a document of basic law by which the United Kingdom is governed, including the relationship between the state and its citizens, an amendment procedure, and elements of reform. Each of these blueprints is self-contained in the sense that each could serve as a particular model for codifying the constitution. Taken together, however, they could be regarded as three stages or building blocks to go through in the process of working towards a written constitution of the UK. The Written Constitution contains a limited number of substantive reforms to our system of governance, particularly in those areas where a constitutional problem has arisen in recent years. These are not individual reforms advocated by this paper as such, merely offered as potential solutions and an illustration of an alternative possibility. Producing a coherent constitutional document of this nature makes it easier to see how different parts of the political and constitutional structure relate to one another and, it is hoped, to evaluate ideas and suggestions for future progression of its component parts. In the last section (Part III), the issues and options to be addressed in the preparation, design and implementation of a codified constitution is considered, including the most appropriate body to draft the constitution, the need for crossparty co-operation, and public engagement procedures. Ancillary Papers Related to this work, published separately on-line, are three ancillary papers: A Literature Review, being an explanation and discussion of the debate so far on codifying the UK constitution or adopting a written constitution for the UK; The Existing Constitution, being a study of the special characteristics of the UK constitution requiring special attention in the process of adopting a codified or written constitution; and a series of twenty-three Case Studies on Constitution Building, to accompany Part III of the programme of research on The Preparation, Design and Implementation of a Codified UK Constitution, focussing in greater depth on specific matters of process and comparative constitution-building exercises. Author Robert Blackburn is Professor of Constitutional Law at King s College London. He is the author of authoritative works of legal theory and practice on the constitution, including Constitutional and Administrative Law (Volume 20), The Crown and Crown Proceedings (Volume 29) and Parliament (Volume 78) in Halsbury s Laws of England, and has written or edited twelve books on political and constitutional affairs, including The Electoral System in Britain, King and Country, Parliament: Functions, Practice and Procedure and Constitutional Reform. He lectures at King s on a number of specialist courses designed by him on constitutional affairs, among them Advanced Constitutional Law (LLB), The Theory and Practice of Parliament (LLM), and The Constitutional History of Britain (MA), and since 2010 has been founding Director of the Centre for Political and Constitutional Studies.
13 Acknowledgements Special thanks are due to Dr Andrew Blick, Research Fellow to the programme, now Lecturer in Politics and Contemporary History at King's, who wrote the ancillary papers on A Literature Review and The Existing Constitution, and provided assistance throughout; to Philip Povey and Dr Elin Weston who provided assistance in the preparation of the draft Constitutional Consolidation Act; and for their encouragement and support, the Joseph Rowntree Charitable Trust and the Nuffield Foundation. Members of an advisory group to the Centre met in a series of four private seminars to consider draft material for this work, to whom I am indebted for their comments and advice. They included Professor Vernon Bogdanor, Professor Anthony Bradley, Professor Ian Cram, Dr Graham Gee, Katie Ghose, Dr Elizabeth Gibson-Morgan, Richard Gordon QC, Stephen Hockman QC, Professor Sir Francis Jacobs QC, Professor George Jones, Professor Sir Jeffrey Jowell QC, Professor Satvinder Juss, Guy Lodge, Lord Kenneth Morgan, Professor Roger Mortimore, Dr Caroline Morris, Dr Michèle Olivier, Richard Percival, Professor Lord Raymond Plant, Craig Prescott, Alexandra Runswick, Roger Smith, Lord Wilf Stevenson, Dr Elin Weston, Professor Sir Robert Worcester, and as observers David Willis and Nick Hodgson. I have aimed to be inclusive of earlier work on this subject, where appropriate. I am grateful to Professors Vernon Bogdanor and Stefan Vogenauer for permission to reproduce in the draft Constitutional Code material drawn from the draft constitution produced during their Oxford course on Enacting the British Constitution in 2006; and to the Institute for Public Policy Research (IPPR) for permission to reproduce in the draft Written Constitution extensive parts of The Constitution of the United Kingdom, produced by their commission on the constitution in 1991, of which I was a member. Robert Blackburn King's College London June 2014
14 CONTENTS (Outline) Contents Part I: Arguments For and Against Codifying the UK Constitution 19 Part II: Three Illustrative Blueprints 29 (1) Constitutional Code 30 (2) Constitutional Consolidation Act 42 (3) Written Constitution 282 Part III: The Preparation, Design and Implementation of a Codified UK Constitution 357
15 CONTENTS Part I: Arguments For and Against Codifying the UK Constitution Page Preface 19 I. The case for a written constitution - 19 Stated generally 19 The particular arguments 20 II. The case against a written constitution 24 Stated generally 24 The particular arguments 24 Part II: Three Illustrative Blueprints Introduction 29 1) Constitutional Code (An illustrative blueprint first of three) The United Kingdom, Nationality and Citizenship 30 The Crown and Head of State 30 Parliamentary Supremacy 31 The House of Commons 31 General Elections 33 House of Lords Membership 33 Powers of the Two Houses 34 Privileges of Parliament 34 European Union Law 34 Executive Power 35 Prime Minister, Cabinet and Ministers 35 Ministerial Conduct 36 Relations between Government and Parliament 36 The Civil Service 37 The Police 37 The Armed Forces 37 The Intelligence and Security Agencies 38 Public Inquiries 38 Emergency Powers 38 Devolution 38 Local Government 38 The Judiciary and its Independence 39
16 Principles of Judicial Review 40 Civil and Political Rights 40 Social and Economic Welfare 41 Status, Amendment and Publication 41 2) Constitutional Consolidation Act (An illustrative blueprint second of three) PART I: THE CROWN AND POLITICAL EXECUTIVE 42 Chapter 1: THE HEAD OF STATE 42 Chapter 2: THE PRIME MINISTER 47 Chapter 3: MINISTERS AND MINISTERIAL CONDUCT 48 Chapter 4: THE CABINET 61 PART II: PUBLIC ADMINISTRATION 66 Chapter 5: THE CIVIL SERVICE 66 Chapter 6: THE DEPARTMENTS OF STATE 72 Chapter 7: NATIONAL FINANCE 73 Part III: PARLIAMENTARY LEGISLATURE 82 Chapter 8: THE PARLIAMENTARY SPEAKERS 82 Chapter 9: MEETING AND DISSOLUTION OF PARLIAMENT 84 Chapter 10: MEMBERSHIP OF THE HOUSE OF COMMONS 87 Chapter 11: ELECTIONS TO THE HOUSE OF COMMONS 90 Chapter 12: CONSTITUENCIES FOR THE HOUSE OF COMMONS 94 Chapter 13: MEMBERSHIP OF THE HOUSE OF LORDS 101 Chapter 14: PROCEDURE OF THE HOUSE OF COMMONS 104 Chapter 15: PROCEDURE OF THE HOUSE OF LORDS 122 Chapter 16: RELATIONSHIP BETWEEN THE TWO HOUSES 130 Chapter 17: PARLIAMENTARY PRIVILEGES AND STANDARDS 132 PART IV: THE EUROPEAN UNION 140 Chapter 18: THE RELATIONSHIP BETWEEN THE UNITED KINGDOM AND THE EUROPEAN UNION 140 Chapter 19: EUROPEAN PARLIAMENTARY ELECTIONS 143 PART V: INTERNATIONAL RELATIONS 147 Chapter 20: TREATIES AND INTERNATIONAL LAW 147 PART VI: DEVOLUTION AND LOCAL GOVERNMENT 151 Chapter 21: SCOTLAND 151 Chapter 22: WALES 177 Chapter 23: NORTHERN IRELAND 204 Chapter 24: LONDON 215 Chapter 25: LOCAL GOVERNMENT 221
17 PART VII: CITIZENSHIP AND HUMAN RIGHTS 229 Chapter 26: CITIZENSHIP AND NATIONALITY 229 Chapter 27: FUNDAMENTAL RIGHTS AND FREEDOMS 235 Chapter 28: FREEDOM OF INFORMATION 254 PART VIII: THE JUDICIARY 256 Chapter 29: THE SUPREME COURT 256 Chapter 30: THE JUDICIARY AND COURTS 266 Chapter 31: JUDICIAL INDEPENDENCE 269 Chapter 32: JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 274 PART IX: GENERAL AND SUPPLEMENTAL 278 Chapter 33: CONSTITUTIONAL RULES AND PRACTICE OUTSIDE THE JURISDICTION OF THE COURTS 278 Chapter 34: CONSTITUTIONAL AMENDMENT PROCEDURES 279 Chapter 35: MISCELLANEOUS 281 3) Written Constitution (An illustrative blueprint third of three) Summary 282 PART I: THE CONSTITUTION OF THE UNITED KINGDOM The Name of the State Sovereignty The Symbols of State The Head of State The Privy Council Citizenship and Nationality 288 PART II: THE EXECUTIVE The Executive Power The Office of Prime Minister Ministers and the Cabinet Ministerial Responsibilities Ministers and Ministerial Conduct The Law Officers The Public Services National Finance 300 PART III: THE NATIONAL PARLIAMENT The Constitution of Parliament Legislative Authority in the State National Legislative Authority Membership of Parliament Duration of Parliament and Electoral Terms 307
18 20 Parliamentary Privilege The Speakers in both Houses Salaries, Standards and Interests Ordinary Legislative Procedures Powers of the Second Chamber 311 PART IV: ELECTIONS AND REPRESENTATION The Franchise The Electoral and Boundary Commissions Method of Election and Constituencies Political Parties 319 PART V: INTERNATIONAL RELATIONS International Relations and Treaties The European Union 320 PART VI: DEVOLUTION AND LOCAL GOVERNMENT Establishment of the Devolved Parliament and Assemblies Legislative Powers of the Devolved Parliament and Assemblies The Devolved Executives Devolved Finance and Revenue Principles of Local Government 325 PART VII: THE INDIVIDUAL AND THE STATE The Bill of Rights Equality and Human Rights Commission Social and Economic Rights Freedom of Information 337 PART VIII: THE JUDICIARY Judicial Authority The Supreme Court Courts in the Three Jurisdictions Constitutional Jurisdiction of the Courts Judicial Appointments and Removal Administrative Justice 346 PART IX: PROTECTION OF THE UNITED KINGDOM The Armed Forces War and Armed Conflict Abroad Use of the Armed Forces within the State The Police and Security Services Emergencies and Suspension of the Constitution 351 PART X: CONSTITUTIONAL CHANGE Commission for Democracy Amendment to the Constitution Constitutional Bills 356
19 Part III: The Preparation, Design and Implementation of a Codified UK Constitution Summary 357 Ancillary paper: Case Studies on Constitution Building Nature and scope of the work The initiative for codifying the constitution 363 The Government's initiative 363 Political interest in codifying the constitution 364 The need for strong leadership 364 Is a constitutional moment required? 365 Popular pressures 365 Engaging the judiciary 366 Future prospects The body entrusted with drafting the document 369 The Cabinet Office 369 A Royal Commission 371 A parliamentary inquiry 373 A constitutional Convention or Assembly with popular representation 375 The Law Commissions 376 A Commission for Democracy Issues of content 380 Values and principles 380 Form, subject matter, and level of detail 382 Codifying conventions 385 The status and priority of a codified constitution 387 Amendment of a codified constitution 390 The referendum in constitutional amendment Cross-party co-operation 395 The need and potential for co-operation 395 Formal conferences and other institutional devices 396 Inter-party talks as part of a constitutional convention 398 Informal methods: the pre-ipsa talks 398 Informal methods: the post-leveson talks 399 Gordon Brown's initiative on a written constitution 400 The Cook-Maclennan agreement today 401 The role of the Head of State 403 Lessons for the process of codifying the constitution 404
20 6 Forms of public engagement 405 Methods of public deliberation 407 Creative use of referendums 408 Permanent public engagement bodies Conclusions and recommendations 410 Building blocks and blueprints 410 Initiative, commencement and the pre-condition of cross-party consent 410 The preparation of a Constitutional Code (Model A): the Cabinet Office 411 The preparation of a Consolidation Act (Model B): The Law Commission 412 The preparation of a Written Constitution (Model C): a Commission for Democracy 413
21 Part I THE ARGUMENTS FOR AND AGAINST A WRITTEN CONSTITUTION FOR THE UNITED KINGDOM Preface This Part sets out the advantages and disadvantages of a written constitution for the UK, expressed in plain language and in rhetorical fashion. 1 Many of the arguments overlap with one another and most are inter-related. Some represent a different way of expressing a similar point of substance to another. So too, some consequences of a written constitution are interpreted differently by proponents on each side of the debate in support of their case. No conclusions are drawn in this paper, leaving it to the reader to decide their own point of view. I. The case for a written constitution Stated generally The case for a written constitution is that it would enable everyone to know what the rules and institutions were that governed and directed ministers, civil servants and parliamentarians in performing their public duties. The sprawling mass of common law, Acts of Parliament, and European treaty obligations, surrounded by a number of important but sometimes uncertain unwritten conventions, is impenetrable to most people, and needs to be replaced by a single document of basic law dictating the working and operation of government in the United Kingdom easily accessible for all. Furthermore, it has become too easy for governments to implement political and constitutional reforms to suit their own political convenience, and entrenched procedures to ensure popular and parliamentary consent are required that necessitate a written constitution. The present 'unwritten constitution' is an anachronism riddled with references to our ancient past, unsuited to the social and political democracy of the 21st century and future aspirations of its people. It fails to give primacy to the sovereignty of the people and discourages popular participation in the political process. A written constitution would circumscribe the boundaries of the British state and its relationship with Europe and the world. It would become a symbol and expression of national identity today and a source of national pride. 1 For further reading on the debate about a written constitution, see the ancillary papers, Andrew Blick, Literature Review, with bibliography and commentary (hereafter 'Literature Review'); and Andrew Blick, The Existing Constitution, on the elements and special characteristics of the United Kingdom constitution (hereafter 'The Existing Constitution').
22 The particular arguments 1 The United Kingdom does not have a constitution at all in the sense of a document setting down the rules and institutions for governing the country. The so-called 'unwritten constitution' exists only in the abstract. Matters of such fundamental importance should be codified into a single documentary constitution for all to see. 2 Many basic rules about British government do not at present exist in any legal form at all, but rely instead on unwritten understandings or traditions, most of which only the political elite understands and are inaccessible or unintelligible to ordinary people. Most of the rules governing the office of Prime Minister, for example, together with the powers and method of appointment of the post-holder, is nowhere committed into legal form, but rely instead on unwritten conventions of monarchy and its ancient royal prerogatives. 3 This abstract, mysterious constitution may work after a fashion, and fitted the deferential and class-orientated structure of society in earlier times, but in today's more equal society, and for the health of its democratic involvement, the constitution should be accessible and intelligible to all, not just the politicians who are running the country. 4 Furthermore, constitutional history is no longer taught in any depth in schools today, unlike in the pre-1945 era when it formed an essential part of civics and history classes at school. This means that the population is generally less aware of the landmarks and origins of customary government underpinning the unwritten conventions of the political system, making it all the more important that the constitution is written down in a single document. 5 Even for parliamentarians and experts some constitutional rules operating as unwritten conventions remain unclear or ambiguous, including some of serious national importance. For example, there is a debate over the existence and scope of any constitutional rule that parliamentary approval is necessary before the government enters into armed conflict abroad or starts arming opposition groups in foreign countries. On such matters, there should be clarity which a codified written constitution would provide. 6 The rules about our core institutions of government, especially the executive (ministers and civil servants), the legislature (the two Houses of Parliament) and judiciary, are of a fundamental and different character to other kinds of law. They should be clearly distinguished from ordinary law and codified in a special document, becoming the United Kingdom's 'written' constitution. 7 The process of making political and constitutional reforms in recent years has become seriously flawed, often with inadequate public and parliamentary consultation on important measures affecting the UK's political system. Governing parties can too easily push measures onto the statute book to change the country's constitutional rules simply to benefit themselves. An entrenched written
23 constitution would redress this problem, setting down a minimum set of procedures that govern major constitutional changes. 8 In a democracy the people, not Parliament, are sovereign. The idea of 'parliamentary sovereignty' emanates to a large extent from the seventeenth century, signifying the supremacy of an Act of Parliament over the Crown's prerogative after the Civil War and Glorious Revolution of It is an untenable doctrine today that there are no limitations at all on what Parliament can legislate about, however repugnant, totalitarian or unpopular. In practice, parliamentary sovereignty is wielded by the government of the day and not Parliament as such. Parliamentary sovereignty is an anachronism in the democratic era, and needs replacing by a written constitution that expresses the sovereignty of the people and circumscribes the powers and duties of members of Parliament in both Houses. 9 The process of establishing a codified constitution would give the people a role for the first time in determining the central principles of the constitution of the UK on which they have never been fully consulted. 10 Currently local government, particularly in England, is subject to constant interference in its legal responsibilities and funding by central government. Its lack of a constitutionally delineated sphere of fiscal and policy autonomy reduces the influence people have on issues relevant to their everyday personal lives, and serves as a disincentive to popular engagement in their local communities. A written constitution would entrench the functions and powers of local government, enhancing their local independence, and end the continuous process of centralisation that has occurred in recent decades. 11 A written constitution would make the different regions of the country more fully integrated within the United Kingdom. The complex asymmetrical structure of Scottish, Welsh, and Northern Ireland government in the United Kingdom, with each at present having different rules and institutions in various statutes and with no regional tier of government for England, needs rationalisation and the coherence that only a written constitution can provide, setting down the underlying principles and processes governing the different parts of the Union. 12 Public trust in ministers, parliamentarians and civil servants has been in a state of decline, if not crisis, in recent times. To help buttress public confidence in the political system, a clear structure of controls and safeguards needs to be codified into a written constitution that ensures their integrity and standards. 13 A written constitution would not mean losing Britain's sense of history. Any historic institutions and ceremonies of past centuries that remain valuable for today, including the monarchy, can simply be codified into a written constitution but with clarity over their modern roles, duties and functions. 14 Opinion polls show clear popular support for a written constitution, especially when asked about the desirability of setting down clear legal rules within which government ministers and civil servants are forced to act.
24 15 A written constitution would become the most prominent national document in the country, with great symbolic as well as legal importance. It would have a beneficial educative effect in society, for young persons at school and the country in general, on how the system of government should work and people's rights and responsibilities. 16 The present constitution as it has evolved in recent times has become one of 'elective dictatorship', lacking separation in powers between executive, legislature and judiciary, and a system of checks and balances on ministers in office. Under the unwritten constitution, the policies and actions of the prime minister and Cabinet dominate the whole legal and political system through its party majority in the House of Commons, a weak House of Lords, a neutral Head of State (the Queen), and the absence of a constitutional court. 17 There is a growing dissatisfaction among parliamentarians with important elements of our constitutional law, such as the arbitrary nature of the Crown prerogative powers (for example, in changing or restructuring government departments, or entering into armed conflict abroad), and a lack of clarity around the working of certain areas of government (such as the transfer of power following an inconclusive election result). A written constitution would address these concerns, codifying the prerogative powers and making them subject to parliamentary or other controls, and replacing greys areas of constitutional conduct by clear legal provisions. 18 Piecemeal codification of disparate parts of the political and constitutional system has been taking place in recent years, but in an informal and disconnected way. This includes circulars issued by government (such as the Ministerial Code, Osmotherly Rules, and the Cabinet Manual), 'soft' law measures (such as the Code of Conduct for Members of Parliament, and the Code of Conduct for Members of the House of Lords, issued by each House of Parliament), and in parliamentary statutes such as the Human Rights Act 1998 (citizenship rights), Constitutional Reform and Governance Act 2010 (creating a statutory basis for the civil service and for the parliamentary scrutiny and approval of treaties) and Fixed-term Parliaments Act 2011 (codifying the law on general election timing). This process towards codifying government needs to be joined up and completed in one comprehensive and coherent document forming a written constitution. 19 Though not essential or necessary to the enactment of a written constitution, its preparation would provide the opportunity, if wished, for public deliberation on a number of selected individual reform proposals, such as replacing the Human Rights Act with a new Bill of Rights, strengthening the House of Lords, creating a new office of Prime Minister, calibrating the relationship between local and central government, and making aspects of the electoral system more representative. A written constitution would also be an opportunity to settle the future of the monarchy, both its permanence and place in a modern democracy, and codify the often contradictory and out of date laws and conventions that circumscribe how it works.
25 20 Achieving cross-party and wide public agreement on many core principles to go into a codified constitution would be easier than is sometimes imagined. Few would dispute, for example, the need for regular meetings of Parliament, for governments to command the confidence of the House of Commons, for judicial independence, and for free and fair elections. 21 A written constitution would be a confident expression of the United Kingdom's national identity, both at home and internationally. Such a document would be a proud assertion of British-ness and the institutions, values and principles the country espouses. It would more effectively delineate the legal and political boundaries of the British state in its international relationships, especially those with the European Union, but also with the United Kingdom's Overseas Territories, the Commonwealth, and the rest of the world. Every other major democratic country in the world, except two, has a written constitution, serving as important symbols of national unity and pride. It is ironic that Britain was in the vanguard of major constitutional documentation in the western world, such as Magna Carta 1215 and the Bill of Rights 1689, but has failed to produce one for the democratic era. There are no good reasons or inherent difficulties about establishing a written constitution for the United Kingdom, codifying the law and workings of its system of government and its relationship with its people.
26 II. The case against a written constitution Stated generally The case against a written constitution is that it is unnecessary, undesirable and un- British. The fact that the UK system of government has never been reduced to a single document is an indication of the success of the Westminster system of parliamentary democracy and the stability it has brought to the country. This is in contrast to most other countries whose written constitutions were the product of revolution or independence. The unwritten nature of the constitution is something distinctively British, it reminds us of a great history, and is a source of national pride. Contrary to claims that it is out of date, it is evolutionary and flexible in nature, more easily enabling practical problems to be resolved as they arise and individual reforms made, than would be the case under an entrenched constitutional document. While some are concerned about the supposed existence of an "elective dictatorship" and inadequate checks and balances in the political system, there is in fact a wide range of considerable pressures exerted upon ministers seeking to make controversial changes. A written constitution would create more litigation in the courts, and politicise the judiciary, requiring them to pass judgement on the constitutionality of government legislation, when the final word on legal matters should lie with elected politicians in Parliament, not unelected judges. There are so many practical problems inherent in preparing and enacting a written constitution, there is little point in considering the matter. As a public policy proposal it lacks of any depth of genuine popular support and, especially given the massive amount of time such a reform would entail, it is a very low priority even for those who support the idea. An attempt to introduce one would be a distraction and might well have a destabilising effect on the country. The particular arguments 1 The British system of government and its unwritten constitution works well in its present form and 'if it ain't broke, don't fix it'. It is impossible to codify the constitution without changing it, and change is not wanted. 2 Written constitutions around the world have almost always been initiated as a result of either a revolution or other domestic catastrophe, or a cessation or grant independence from a colonial power or larger political union, and none of these circumstances exist in the United Kingdom today. 3 The United Kingdom has an evolutionary system of government that adapts smoothly to changing social and political conditions, whereas a written constitution entrenching its institutions and rules would be more rigid and difficult to change with a danger that it might fossilise and become out of date. 4 The unwritten constitution allows a democratic Parliament to be the supreme determinant of law, rather than an unelected judiciary. If the written constitution carried a higher status and priority in law, as written constitutions