Codifying the UK constitution: an exercise in reform or preservation?

If the UK gets a written constitution, will it seek simply to codify the current constitutional arrangement or will it present an opportunity for more fundamental changes? In light of a recent PCRC report assessing the desirability of a written constitution, Daniel Helen looks at recent codification proposals and considers the reforms they put forward.

A new Magna CartaBehind the title of the Political and Constitutional Reform Committee’s report into the desirability of a codified constitution for the UK – published last Thursday as A New Magna Carta?– lies an unintended analogy. While the rebellious English barons in 1215 may have claimed that they demanded nothing more than a return to the good old law of Edward the Confessor and Henry I, in many of its provisions Magna Carta marked a significant break from past practice. Modern-day proponents of a codified, or ‘written’, constitution are not so different. While the act of codifying certainly amounts to a momentous reform in itself, both proponents and opponents realise that it provides an opportunity to make significant changes to the substance (not just the form) of the constitution. The committee’s report is no exception.

There have been numerous attempts at codification over the past few decades, varying considerably in length and scope.The most radical proposal came in the form of Tony Benn’s Commonwealth of Britain Bill, first presented to the House of Commons in 1991. It called for – inter alia – the abolition of the monarchy, a ‘House of the People’ in lieu of the aristocratic Lords, equal parliamentary representation of men and women, and a federal Britain with devolved parliaments in England, Scotland and Wales (British jurisdiction over Northern Ireland would end). Given Benn’s views and history, one should not really be surprised by his proposals. In 1990, the Liberal Democrats published a codified constitution in “We the People…” – Towards a Written Constitution. Its proposed changes embodied party policy which remains largely the same to this day. Notably, it would introduce the single transferable vote and replace the Lords with an elected Senate. Like Benn’s Bill, it is clearly the product of a distinctive political outlook.

Most influential over the select committee’s report were two very different attempts at codification. The first was published by the Institute for Public Policy Research (IPPR) in 1991 as The Constitution of the United Kingdom. It called for devolution in Scotland, Wales, Northern Ireland and the English regions, four-year fixed-term parliaments, the election of the Prime Minister by MPs, the use of the additional member system for the House of Commons and STV in the Second Chamber. The second attempt sought to produce a codified constitution as it stood at the time of composition. In 2006, Vernon Bogdanor and Stefan Vogenauer held a seminar at Oxford, inviting students to come up with a draft UK constitution. Beyond suggesting that their constitution be ‘fundamental’ in a limited sense, the students did not introduce any substantial changes. But in this regard, it remains the exception and not the rule.

The select committee’s report puts forward three ‘illustrative blueprints’ produced by Professor Robert Blackburn of King’s College London’s Centre for Political and Constitutional Studies. Each serves as an alternative approach towards codification, but, taken together, they could be seen as individual stages on the path towards a fully codified constitution. They are:

  • A Constitutional Code – a non-legal document (though proposed to be sanctioned by Parliament and updated by the Cabinet Office) which sets out the general rules and principles of the UK constitution.
  • A Constitutional Consolidation Act – the amalgamation of constitutional statutes, common law practice and important conventions into a single Act of Parliament.
  • A Written Constitution – a comprehensive document of basic law for the UK.

The committee is keen to emphasise that it does not necessarily advocate any of the three blueprints, and indeed neither supports nor opposes the notion that the UK should codify its constitution. The blueprints have been provided to show what is possible and to fuel debate as they begin a period of public consultation on the issue.

Professor Blackburn acknowledges that the Constitutional Code owes a lot to the Bogdanor/Vogenauer constitution (A New Magna Carta, p. 11). Both codify the constitution as it is, but they differ in that the Code would hold no legal force. The Constitutional Consolidation Act is probably the most original of the three blueprints. In drawing together existing statutes, practices and conventions, it does not deviate from the current constitution. The ‘Written Constitution’, however, makes substantial changes. Blackburn, a member of the team which produced the IPPR draft constitution, admits that the Written Constitution reproduces ‘extensive parts’ of The Constitution of the United Kingdom(A New Magna Carta, p. 11). It proposes reforms of a similar nature and scale, but it is certainly not a carbon copy.

Among its most notable changes from the current system, the Written Constitution calls for the election of the Prime Minister by MPs, removing the monarch’s prerogative to choose the head of government. Early elections would require a simple majority vote in the Commons (with the qualification that the electoral term of the new House of Commons remains the same as the previous one). The Commons would retain the first past the post system, but its membership would be limited to between 600 and 650. Most substantially, the House of Lords would eventually become a wholly elected ‘Second Chamber’. 240 members would be elected using STV, and would serve 15-year non-renewable terms, with a third elected at each general election. The constitution would be entrenched in that amendments would need the approval of two-thirds of each chamber of Parliament at final reading. However, parliamentary sovereignty would be preserved as the Supreme Court would only be able to issue declarations of incompatibility, as courts currently can with respect to the Human Rights Act.

It is not clear why the select committee decided to include so many changes in their model Written Constitution, and why they included the changes that they did – though some of them are familiar positions taken by the committee’s chair, Graham Allen. The only justification given is that the report ‘simply give[s] examples of how such changes might be incorporated in a document of this nature. The fundamental question remains the desirability or otherwise of codifying the constitution of the United Kingdom’ (A New Magna Carta?, p. 284). Indeed, the report even suggests that an advantage of producing a codified constitution is that it would encourage ‘public deliberation on a number of selected individual reform proposals’ (A New Magna Carta?, p. 22, para. 19).

There are certainly sound reasons why constitutional reform in the UK should take into account the whole constitution (see Bogdanor, Khaitan and Vogenauer, p. 500), but codified constitution proposals which feature substantial changes are much less likely to be accepted by those who have the power to make it happen. Should a codified constitution ever be put before Parliament, it would almost certainly need to preserve the existing settlement in order to achieve consensus among all of the necessary political actors. The report’s title offers another unintended (and unfortunate) analogy in this regard. Magna Carta 1215 was a failure; it failed to settle the dispute between King John and his barons, leading to a civil war it was meant to prevent. The movement towards a codified constitution can only succeed if the three main political parties accept the idea and pursue it with vigour. Such agreement seems unlikely if proponents insist on using the codification process to fundamentally change the UK’s constitutional settlement.

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