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Written Constitution for the UK

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Written Constitution for the UK Contents Page 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 request1 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. 1 16 September 2010. (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 cross- party 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. 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 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 CONTENTS __________________________________________________________ Page Part I: Arguments For and Against Codifying the UK Constitution 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 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
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