The House of Commons Political and Constitutional Reform Committee has been working on a project with King’s College London to develop several different visions of what an overall “democratic settlement for the UK” could look like and published a report, A New Magna Carta?, on 10 July. The King’s College research lays out three different models – including one fully fleshed out, complete constitution – and sets out some of the arguments for and against constitutional codification.
Arguments for: The KCL research points to the fact that the UK has a “sprawling mass” of common law, Acts of Parliament, and European treaty obligations together with a number of constitutional conventions that govern administration. It suggests that the full picture is unclear and uncertain to electors and suggests that it has “become too easy for governments to implement political and constitutional reforms to suit their own political convenience”. A written constitution would entrench requirements for popular and parliamentary consent.
Arguments against: The contrary case is that a written constitution is unnecessary, undesirable and “un-British”. The UK’s unwritten constitution is evolutionary and flexible, enabling practical problems to be resolved as they arise. The research points to concerns that a written constitution would create more litigation and politicise the judiciary, requiring judges to rule on the constitutionality of legislation (which currently happens only in contexts such as compatibility with the Human Rights Act 1998), when the final word on legislation should rest with Parliament. The research also suggests that there are so many practical problems in preparing and enacting a written constitution that there is little point in even considering it; nor does codification have any real popular support .
The three options and the Committee inquiry
- A Constitutional Code – a document without legal force that would set out the existing principles of the constitution and the workings of government.
- A Constitutional Consolidation Act – which would consolidate existing constitutional laws in one place.
- A full-scale Written Constitution.
The Committee is deliberately not supporting a position for or against a codified Constitution, in the interest of stimulating a proper debate. It is calling for views on the following questions:
- Does the UK need a codified constitution?
- If so, which of the three options offers the best way forward?
- What changes would you like to be made to your favoured option if you have one?
The consultation closes on 1 January 2015. The Committee will report on the responses from the public in time for them to be taken into account ahead of the General Election. The Committee’s report and the research on which it is based are available from this link; and written submissions can be made on-line.
Given the close constitutional relationship between the Church of England and the UK Parliament and the less close but equally real relationship between the Church of Scotland and the Scottish nation, the issue of constitutional reform is of obvious interest to students of law and religion. Any discussion about codification in any form also raises (or should raise) the wider question of the relationship between domestic law and European law, both in relation to the EU and to the ECHR: “binding” vs “take account of”, Article 9 ECHR and all that.
That said, however, it may be as well to wait for the outcome of the Scottish referendum on independence before making a submission to the inquiry, because if Scotland votes “yes”, then the whole issue of the present constitutional settlement will have to be re-examined pretty well from scratch.