“A New Magna Carta” Part 1: The Constitutional Code

The House of Commons Political and Constitutional Reform Committee has launched a public consultation on whether or not the United Kingdom needs a codified constitution. In order to jumpstart the debate, it has published a report that outlines some of the key arguments on both sides. It also suggests three possible routes toward codification: a constitutional code, a constitutional consolidation act, or a full-fledged written constitution.

Dr. Robert Blackburn, Professor of Constitutional Law at King’s College London, has prepared a ‘blueprint’ for each option to show how it might look. Although they are intended as discussion pieces rather than actual legislative proposals, they raise a number of interesting constitutional issues. In the interests of keeping things manageable, I will discuss each blueprint in a separate post. Today’s post focuses on the constitutional code.

The constitutional code is the simplest of the three blueprints devised by Professor Blackburn. It is basically a giant gloss on the disparate texts and traditions that make up the British constitution. In many cases, it simply alludes to provisions made by Act of Parliament (e.g. paragraph 6: “The Monarch is that person who is the descendant of Sophia Electress of Hanover next in line to the throne as provided and regulated by the Act of Settlement 1700, extended to Scotland in 1707 and Northern Ireland in 1801 by Acts of Union, amended by the Succession to the Crown Act 2013.”), but it also references unwritten conventions that have developed over the years (e.g. paragraph 49: “The Prime Minister and all ministers of the Treasury must be or become members of the House of Commons.”).

The spirit of the document favors simplicity over precision, and this leads to some misleading statements. For example, paragraph 42 states that “[t]he executive power of the United Kingdom is vested in the Crown, but all executive acts are performed by Ministers in the Queen’s name.” This is not actually true. Since the Queen still performs a number of executive acts in person (e.g. making appointments, ratifying treaties, assenting to legislation, etc.), it cannot be said that “all executive acts are performed by Ministers in the Queen’s name.” To quibble over this point might seem pedantic since the Queen still acts on ministerial advice, but it shows how generalization can lead to obfuscation. It also illustrates the difficulties of reducing a complex, organic entity like the British constitution to an easily intelligible document!

However, in other places, the code gets oddly specific. Paragraph 45 states that “[t]he maximum number of holders of ministerial office entitled to sit and vote in the House of Commons at any one time is set at ninety-five by the House of Commons Disqualification Act 1975.” That is true, of course, but the 95-person limit is not set in stone, and Parliament can raise or lower it at any time. It seems unwise and unnecessary to include that level of detail in a document that will only be periodically updated.

Some of the statements in the code also seem rather banal. Paragraph 44 says that “[a]ll executive powers are exercised subject to the legislation, if any, and principles of the common law governing the circumstance and mode of exercise of such powers.” This would seem to be so blindingly obvious that one has to wonder why it was included.

But the biggest issue with the code is that it will arguably be meaningless. Paragraph 92 states that “[t]his Code has no status in law, and may not be cited or relied upon in any legal proceedings before the courts.” It will, however, be approved by resolutions of both Houses of Parliament after each General Election (see Paragraph 94). That might give it some degree of moral authority, but it could also end up being little more than empty symbolism.

While the constitutional code has the advantages of being simple, straightforward, and reasonably uncontroversial, I doubt it will find much favor. People who believe that a written constitution is necessary to buttress the rule of law in Britain are unlikely to take comfort from a document that has no legal standing. Although it would make the constitution easier to understand, I am not sure it would be worth taking such pains to make a glorified fact sheet.

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