“A New Magna Carta” Part 2: The Constitutional Consolidation Bill

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 suggests three possible routes toward codification: a Constitutional Code, a Constitutional Consolidation Bill, or a full-fledged Written Constitution. Last week, I discussed the Constitutional Code. Today, I’ll focus on the Constitutional Consolidation Bill.

The Constitutional Consolidation Bill is basically a more complex version of the Constitutional Code. It takes all the disparate statutes and conventions that presently make up the British constitution and brings them together in a single Act of Parliament.

The Bill begins on a bizarre note. Clause 2 essentially quotes the Act of Settlement 1700 (12 & 13 Will. 3 c. 2) verbatim. For example, clause 2(2) repeats Part I in all its archaic glory:

Whereas in the First Year of the Reign of Your Majesty and of our late most gracious Sovereign Lady Queen Mary (of blessed Memory) An Act of Parliament was made intituled [An Act for declaring the Rights and Liberties of the Subject and for settling the Succession of the Crown] wherein it was (amongst other things) enacted established and declared That the Crown and Regall Government of the Kingdoms of England France and Ireland and the Dominions thereunto belonging should be and continue to Your Majestie and the said late Queen during the joynt Lives of Your Majesty and the said Queen and to the Survivor And that after the Decease of Your Majesty and of the said Queen the said Crown and Regall Government should be and remain to the Heirs of the Body of the said late Queen And for Default of such Issue to Her Royall Highness the Princess Ann of Denmark and the Heirs of Her Body And for Default of such Issue to the Heirs of the Body of Your Majesty.

Your constitution shouldn’t look like this. Photo of Boris Karloff as Frankenstein [Public domain], via Wikimedia Commons

I’m not sure why the Act of Settlement is quoted verbatim like this. Since everything else is written in contemporary language, including parts of the Act of Settlement makes the Constitutional Consolidation Bill seem a bit like Frankenstein’s monster. Also, the use of the eighteenth century text is a bit awkward since it refers to “the Popish Religion” and “the Kingdoms of England France and Ireland”! Instead of just copying and pasting, it seems like it would be more prudent to translate these provisions into modern language.

The bigger problem with the Constitutional Consolidation Bill is that it frequently seems like it was written by the Terrible Trivium. For example, clause 7(1) states that “[t]he Prime Minister may agree that a minister in any of the categories can be known by a ‘courtesy title’ reflecting the job the minister has been asked to do, for example ‘Minister for Europe’. A courtesy title has no legal or constitutional significance.” I fail to see why the practice of giving ministers courtesy titles needs to be enshrined in the constitution since, as the Bill itself points out, they lack legal or constitutional significance.

Similarly, clause 9(5) states that, when a minister wishes to make an oral statement in the House of Commons, he or she should provide “15 copies of the statement and associated documents should be sent to the Chief Whip’s Office at least 45 minutes before the statement is to be made.” That sort of administrative provision seem entirely out of place in a constitutional document. That is hardly a timeless principle that should be enshrined in the law!

Even *I* don’t think peerage robes should be constitutionally mandated. Drawing by Leslie Ward [Public domain], via Wikimedia Commons.

But the most absurd example of this obsession with trivialities is probably clause 75(1): “[w]hen Her Majesty comes publicly to the House, the Lords shall be attired in their robes or in such other dress as may be approved by Her Majesty, and shall sit in their due places.” I’m all for parliamentary robes, but I think the idea of writing them into a constitutional document is patently ludicrous. These are ‘things indifferent’ that have no place in a constitutional document.

Many of these trifles arise because, in its quest to be comprehensive, the Constitutional Consolidation Bill draws heavily on texts such as the Cabinet Manual and the Standing Orders of both Houses of Parliament. But as we have seen, this approach leads to problematic results. A constitutional document shouldn’t try to prescribe every single facet of the government’s existence. There are many things that are best left to the changing judgment of the times.

On the other hand, there are places where the Bill is studiously vague. Clause 10(9) states that, although the Queen generally exercises her powers on ministerial advice, she reserves the right to exercise some of the prerogative powers personally “in unusual circumstances.” This isn’t a new doctrine. Constitutional theorists have long accepted that there are circumstances where the Sovereign would be justified in acting without (or contrary to) ministerial advice. But while scholars generally agree that these ‘reserve powers’ exist, they disagree about when it would be appropriate to use them. Given the uncertainties surrounding the reserve powers, I’m not sure it would be possible to codify them. But the vague reference to “unusual circumstances” isn’t terribly helpful, and one has to wonder why it’s there at all. If codification doesn’t make things clearer, why bother?

Clause 227 also contains some unexpected provisions. Sub-clause (2) provides that “[c]onstitutional conventions existing at the time of commencement of this Act may evolve and change from time to time, and they may be amended by the common agreement of those persons or institutions that are bound by them,” while sub-clause (3) states that “[a] new constitutional convention may be created by the common agreement of those persons or institutions that are bound by them which are acted upon.” I realize these provisions are intended to provide a measure of flexibility, but they seem to make a mockery of the whole codification process. It seems strange to devote all this effort to describing these conventions in an Act of Parliament only to declare that they can be changed at any time through a gentlemen’s agreement.

Unlike the Constitutional Code, the Constitutional Consolidation Bill would have legal force. However, it won’t be entrenched in any way, and clause 223(1) affirms that Parliament can amend or repeal it at any time. It’s not uncommon for a Westminster state to use an act of the legislature to promulgate its constitution, but this approach leaves the constitution mutable. That’s not necessarily a bad thing–it can prevent the constitution from becoming an ossified relic. On the other hand, it also allows the government to tinker with the constitution on a whim (as long as the government has a majority in the House of Commons, it can get its way sooner or later). A Constitutional Consolidation Bill could arguably have the same weaknesses as the present un-codified constitution.

I suspect a Constitutional Consolidation Bill will be a hard sell. Opponents of a codified constitution might accept it because it doesn’t change the status quo, but supporters of a codified constitution might raise their eyebrows at a document that can be amended or repealed at the pleasure of the government.