“A New Magna Carta?”

Fabian Hamilton Excerpts

Thursday 17th July 2014 Commons Chamber

[Fabian Hamilton (Leeds North East) (Lab)]

Before I begin the statement, I should like to give the apologies of the Chair of the Committee, my hon. Friend the Member for Nottingham North (Mr Allen), who is unable to be with us this afternoon. I pay tribute to his extraordinary work on this massive report, “A New Magna Carta?”, and thank the staff of the Committee, the Clerks and the other staff for all the efforts they have put into this four-year work.

Last Thursday, right next to the Magna Carta in the British Library, the Political and Constitutional Reform Committee launched its new report on whether the UK’s constitution should be codified. The report marks the end of an innovative four-year inquiry that has involved the Committee working closely with King's college, University of London.

The United Kingdom is one of the very few democratic countries in the world without a codified constitution. As the Cabinet Manual notes:

“There is no single document that describes, establishes or regulates the structures of the state and the way in which these relate to the people. Instead, the constitutional order has evolved over time and continues to do so.”

Among other democracies, only Israel and New Zealand do not have codified or written constitutions.

We are living through a period of considerable political change. Significant developments in recent decades have included devolution in Scotland, Wales and Northern Ireland; the removal of 90% of hereditary peers from the House of Lords; freedom of information legislation; the establishment of the Supreme Court of the United Kingdom; the introduction of fixed-term Parliaments; and the entrenchment of human rights in our domestic legal system. At the same time, some existing constitutional arrangements have been written down in publicly available documents such as the ministerial code and the civil service code. But these changes have been piecemeal, so, at the beginning of the 2010 Parliament, the Political and Constitutional Reform Committee decided that the time was right to begin a comprehensive evaluation of the United Kingdom’s constitutional arrangements.

The Committee launched its inquiry in September 2010. From the beginning, we knew that this would be an ambitious and unusual Select Committee inquiry, which would be conducted over several years. It has involved working collaboratively with an academic partner, King’s college London, which has produced for us, among other things, an outline of the arguments for and against codification, a paper setting out the process that could be adopted in the preparation, design and implementation of a codified constitution, and three examples of what a codified constitution could look like: a non-legal code, a consolidation act, and a fully fledged written constitution. The Select Committee has published all that research, as well as a fully fledged written constitution, alongside our report.

When it comes to arguments in favour of a codified constitution, the King’s college London research points to the fact that the United Kingdom has a “sprawling mass” of common law, Acts of Parliament and European treaty obligations, and a number of important but uncertain and unwritten conventions that govern administration, but the full picture is unclear and uncertain to electors in our democracy. The research also points to concerns about an “elective dictatorship” and argues 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, because the present unwritten constitution is

“an anachronism riddled with references to our ancient past, unsuited to the social and political democracy of the 21st century and future aspirations of its people. It fails to give primacy to the sovereignty of the people and discourages popular participation in the political process.”

Conversely, the case made against a written constitution in the King’s college research is that it is unnecessary, undesirable and even un-British. The UK’s unwritten constitution is evolutionary and flexible in nature, enabling practical problems to be resolved as they arise and individual reforms made. The research points to concerns that a written constitution would create more litigation in the courts and politicise the judiciary, requiring them to pass judgment on the constitutionality of Government legislation, when the final word on legal matters should rightly lie with elected politicians in Parliament and not unelected judges. There is the simple argument that there are so many practical problems in preparing and enacting a written constitution that there is little point in even considering it. There is no real popular support or demand and, especially given the massive amount of time and destabilising effect such a reform would entail, it is a low priority even for those who support the idea.

The Select Committee deliberately did not take a position for or against a codified constitution, believing that it is for the people of this country to make such a decision. The intention was instead to generate a forward-looking debate alongside the 800th anniversary celebrations of Magna Carta by placing in the public domain the results of our unique, four-year research project. Like Professor Robert Blackburn, who led the research, the Committee believes that a consideration of detailed alternative models, showing how a constitution might be designed and drafted, will inform and advance the debate on the desirability or otherwise of codifying the constitution in one place. There has been a number of attempts to produce an illustrative codified constitution for the United Kingdom or an outline of what such a constitution could contain. What we have published, however, represents the most comprehensive attempt so far to provide different detailed models of a codified constitution for comparison and consideration.

The publication of the report marks the beginning of a national consultation, running until 1 January 2015, to gather opinions on the future of the United Kingdom’s constitution. The Select Committee has asked anyone who is interested to submit their views on three questions. Does the UK need a codified constitution? If so, which of the options in the report offers the best way forward? What should be included in such a codified constitution? I encourage hon. Members to spread the word about our consultation to their constituents and to respond and share their own views. Details of how to submit responses can be found on the Committee’s website. The Committee intends to report on the views it receives before the next general election.

At a time of public disillusionment with the political establishment, in particular among young people, it is a good moment to return to fundamentals. There are few things more fundamental than how the state operates and exercises power and how it interacts with the people. Our constitution should belong to the people of the United Kingdom and not to political insiders or Members of Parliament. It is about our democracy, and so, as the nation celebrates the 800th anniversary of the first Magna Carta, we need to look forward as well as back. What should the Government of this country look like over the next 800 years?

[Oliver Heald (North East Hertfordshire) (Con)]

In my constituency is the village of Walkern, which was the administrative centre of William de Lanvalei, one of the 25 barons elected at Runnymede in 1215 to ensure that King John adhered to the law of the land set out in Magna Carta. The Walkern history society is doing a fantastic job this year, together with Janet Woodall and funded by the Big Lottery Fund, in celebrating that fact.

Does the hon. Gentleman agree that one of the great concerns about a codified constitution or, indeed, a consolidation is that it would affect this place’s arrangements and the arrangements with the courts? It might lead to a constitutional court being seen as a rival or as taking power away from this place. Does he agree that that would be undesirable? The self-restraint that we have in this place and in the courts is very welcome.

[Fabian Hamilton]

I am fascinated to learn about the hon. and learned Gentleman’s constituency and the importance that it has in the original Magna Carta. I agree that if a codified or written constitution is not properly drafted, such mistakes could be made and the judiciary, as the King’s college London research suggests, could become extremely politicised. We know from other countries with written constitutions that it is often the constitutional court that makes decisions that should rightly be made by Parliament and by elected Members. All that is capable of being overcome, however, by careful, considered drafting and by asking the people of this country what they want to see in that constitution, if indeed that is what they want.

[Stephen Twigg (Liverpool, West Derby) (Lab/Co-op)]

I welcome the Select Committee’s report. Working on a cross-party basis, the Committee has done a truly excellent job in producing a weighty document on a serious constitutional and political challenge.

How does my hon. Friend think we can best take the debate forward? He spoke of a national consultation between now and the end of the year. How does the Select Committee propose that we engage with civil society organisations such as Unlock Democracy and Bite the Ballot? How might we best engage with young people in this important debate?

[Fabian Hamilton]

I thank my hon. Friend for his question. I am sure that, in common with many Members of this House, he regularly visits schools. Many primary schools from my constituency have visited the House of Commons and many young people have been present in the Palace of Westminster these last few weeks. When I talk to school councils, whether in primary or secondary schools, I find a huge interest in how government works, how we run the country and how the House of Commons and Parliament work. It is sometimes hard to unravel and for many to understand, but a debate among schoolchildren, who have that growing interest, would actually serve to inform us as well, because they are the next generation of public representatives of the judiciary and of the electorate and we want their input.

The hon. Gentleman mentioned Bite the Ballot and Unlock Democracy, both of which have given evidence on numerous occasions to the Political and Constitutional Reform Committee, as have many other civil society organisations. We value that important evidence, but we need to spread the message as far and as wide as we possibly can. It is not the main topic of the day, but it is crucial to how Governments and Parliament are run in future and the engagement of the next generation.

[Henry Smith (Crawley) (Con)]

I am grateful to the hon. Gentleman for setting out the conclusions of the Select Committee’s report. What evidence was taken from other countries that also have Magna Carta as arguably their most important constitutional document? I am particularly thinking of places that have codified constitutions in the Anglosphere, such as Australia, Canada and the United States.

[Fabian Hamilton]

Yes, indeed. The hon. Gentleman can see the size of the document, and I commend it to him. I cannot say that I have read it from cover to cover, but I have had a great part as a member of the Committee in creating it. We took evidence from other countries. Of course, we looked at New Zealand, which has an uncodified constitution, and at Australia. Interestingly, we looked at France and at Iceland, which has an older Parliament even than our own. There were many lessons to learn from all those other countries, whether they had codified constitutions, written constitutions or unwritten ones, as New Zealand does. If the hon. Gentleman looks at the report or even scans it, he will find many of those examples both in the body of the report and in its appendices. There is a lot to learn from other nations.

[Paul Flynn (Newport West) (Lab)]

Although it is right to celebrate the Magna Carta, it is worth noting that the laws of Hywel Dda, which were written 200 years before Magna Carta, gave rights not just to the aristocracy and barons but to all women. There is much that is progressive in the cyfraith Hywel.

Page 348 of the report, on war and armed conflict, suggests that to go to war we should need a two-thirds majority in both Houses of Parliament and a positive legal opinion that approves it. This is a matter that has changed in the convention of the House since 2003, particularly as regards the decision taken by the House on 29 August last year. Does my hon. Friend believe that this will be a major item of discussion and reform?

[Fabian Hamilton]

I thank my hon. Friend for his comments and question. Yes, of course, this is a new departure even during my brief 17 years here in the House of Commons. It is essential that this House and its elected members have the say in whether this country goes to war and I think that the public were baffled previously as they did not realise that Parliament did not have to give its approval for an act of war between Great Britain and other nations in the world. We need to codify this and to set it in stone, as it were, so that never again can a Prime Minister say on behalf of the monarch that we declare war. Elected Members of Parliament and only elected Members of Parliament should have that right.

[Mr Philip Hollobone (Kettering) (Con)]

I thank the hon. Gentleman for his statement and praise him and the Committee for the quality of their work. They are bound to win first prize for the largest Select Committee report in this Parliament. Does he agree that a good starting point in reforming the constitution would be to empower this House to decide when it meets and what it discusses? If an event of importance to our nation takes place during one of the parliamentary recesses, it is not the House that decides to recall itself but the Government of the day, which might well be minded not do so. Does he agree that a good starting point would be to introduce a recall mechanism for the House so that it can call itself into session if something important happens either in this country or around the world?

[Fabian Hamilton]

I thank the hon. Gentleman for his pertinent question. I heard the questions that he put to the Leader of the House earlier today on that very subject and it is absolutely clear to me that the elected Members of this House should have control over their timetabling and over whether they can sit. I am baffled about why that has not happened already, although I know that we had some responses on that from the Leader of the House earlier. I would hope that if there were any codified constitution or written constitution for this country it would set the elected Chamber of our Parliament at its heart. Otherwise, our electors simply cannot understand it when they contact us and ask us to recall Parliament for a debate on whether to attack Syria, Iraq or whoever it might be, only for us to say that it is up to the Government of the day and that we have no power to make that decision. That has to change.

[Mark Durkan (Foyle) (SDLP)]

I thank my hon. Friend for making this statement about the report. I joined the Select Committee in the midst of this inquiry. Does he recognise, as regards the question that has just been raised, that a codified constitution might provide a more cogent assertion of this House’s authority vis-à-vis the Executive and that it might also answer a constant frustration that we hear from some in this House, as there seems to be an overlap between those who are Eurosceptic and those who are sceptical about a written constitution? Some other countries with codified or written constitutions, such as Germany, have been able to use that constitution to show that their national laws have primacy over European laws and the interpretation of European laws.

[Fabian Hamilton]

I thank my hon. Friend for that relevant and pertinent contribution. That is exactly why I as a member of the Committee and many other members of the Committee support a written or codified constitution. It would state and assert the primacy of our national Parliament over the sovereignty of the European Union and it would define that relationship far more clearly than the statutes and treaties scattered all over the place, which are not brought together, meaning that we do not really know—and the public do not really know—the relationship between elected Members, the European Parliament and the European Union. Who has sovereignty? Who has primacy? Of course we cede some sovereignty when we sign a treaty, but the fact is that Germany has it right and we need perhaps to emulate its example so that we can show that this House and its elected Members, elected by our constituents, the electorate of this country, have sovereignty over our laws and over some of the laws imposed on us with which we are not happy.