Annex B: Draft Charter of the Union from the Bingham Centre for the Rule of Law
Draft Charter of the Union with explanatory notes
Sir Jeffrey Jowell QC with the assistance of former Parliamentary Counsel Daniel Greenberg
Based on the Report, A Constitutional Crossroads: Ways Forward for the United Kingdom (May, 2015) drafted for the Bingham Centre for the Rule of Law by a commission consisting of Sir Jeffrey Jowell QC (Chair), Professor Linda Colley, Gerald Holtham, Professor John Kay, Sir Maurice Kay, Professor Monica McWilliams, Professor Emerita Elizabeth Meehan, Philip Stephens, Professor Adam Tomkins (Rapporteur), Professor Tony Travers & Alan Trench (Advisor)
A BILL TO
Lay down the fundamental principles of the United Kingdom’s constitution in relation to devolution to its constituent nations and parts.
BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:–
1 Purpose of Charter
(1)The purpose of this Act is to enact a Charter of the Union setting out the fundamental principles governing the allocation of powers and constitutional relationships between the United Kingdom and its constituent nations and parts.
(2)Any enactment (whether passed before or after this Act) is subject to the fundamental principles.
(3)Accordingly, the following are to have regard to the fundamental principles wherever relevant—
(a)the courts,
(b)public authorities, and
(c)the devolved legislatures.
2 The fundamental principles
The Union of the UK nations and parts is based on the following fundamental principles—
1.That the United Kingdom is a voluntary union of the UK nations and parts expressed through informed and democratic processes.
2.That each UK nation and part should have a form of government which respects the cultural characteristics and identities of its people.
3.That each UK government should have powers that reflect the principles of autonomy and subsidiarity to the extent that they are best suited to providing for the particular needs of its people.
4.That self-government, through devolution or otherwise, is an option that should not be imposed on any UK nation or part that has not expressed a majority wish for it.
5. That the United Kingdom and the UK nations and parts share a commitment to democracy, the rule of law, equality and the protection of human rights and freedoms throughout the United Kingdom.
6.That respect for the rule of law (including transparency, accessibility and certainty) must be reflected in all inter-governmental processes of the United Kingdom and of each UK nation and part.
7.That the Government of the United Kingdom is accountable to Parliament, and the devolved governments are accountable to the devolved legislatures.
8.That the United Kingdom takes collective responsibility for the defence and security of the people.
9.That the United Kingdom and the UK nations and parts constitute a single market, with a single currency and a common macro-economic framework.
10.That the United Kingdom and the UK nations and parts are committed to a fair pooling of resources, such that each government has sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.
11.That the United Kingdom and the UK nations and parts are committed to the sharing of risks so that the burden of adversities falling on one nation or part is shared by the others.
12.That the Government of the United Kingdom and the devolved governments should cooperate with each other in a spirit of trust, fair dealing and good faith.
3 Consent by referendum
(1)A UK nation or part shall not leave the United Kingdom except on the basis of a referendum of the people of that UK nation or part held in accordance with the provisions of the Political Parties, Elections and Referendums Act 2000.
(2)A devolved government of a UK nation or part may initiate a referendum to ask whether the people of that nation or part wish to leave the United Kingdom.
(3)A referendum under subsection (2) (a “secession referendum”) may not be held less than 15 years after the holding of a previous secession referendum for that nation or part.
4 The courts
(1)A selection commission for the Supreme Court convened under section 26 of the Constitutional Reform Act 2005 must take account of the importance of ensuring that the court—
(a)represents each of the UK nations and parts; and
(b)has the necessary authority and experience for the resolution of disputes between the Government of the United Kingdom and the UK nations and parts, or between UK nations or parts, in accordance with the fundamental principles in section 2.
(2)Acts of the devolved legislatures shall be construed in accordance with the fundamental principles of the United Kingdom (and in a manner that respects the national status of each legislature).
5 Interpretation
(1)A reference in this Act to the nations and parts of the United Kingdom is a reference to—
(a)England;
(b)Scotland;
(c)Wales;
(d)Northern Ireland; and
(e)any other area which is given devolved powers of government under an enactment.
(2)The “devolved governments” are—
(a)the Scottish Government;
(b)the Welsh Government; and
(c)the Northern Ireland Executive.
(3)The “devolved legislatures” are—
(a)the Scottish Parliament;
(b)the National Assembly for Wales; and
(c)the Northern Ireland Assembly.
(4)A “public authority” is any authority exercising functions of a public nature in the United Kingdom or in a UK nation or part (including Ministers and government departments).
6 Technical provision
(1)This Act extends to the whole of the United Kingdom.
(2)This Act comes into force on Royal Assent.
(3)This Act may be cited as the Charter of the Union 2016.
Charter of the Union Bill explanatory notes
Introduction
1.These Notes accompany the Bingham Centre for the Rule of Law’s Draft Charter of the Union Bill and are designed to help the reader to understand the purpose and effect of the draft Bill.
The Report
2.The purpose of the draft Bill is to show how legislation could give effect to the recommendations in A Constitutional Crossroads–Ways Forward for the United Kingdom614 (“the Report”) relating to a new Charter of the Union.
3.The Report identifies a series of principles of union constitutionalism which it argues should be codified in a new Charter of the Union. Although not possessing the entrenched framework of a written constitution, the Charter of the Union would guide the allocation of powers within the UK and the constitutional relationships within and between the centre and the constituent nations and parts.
4.The principal discussion of the new Charter is to be found in Chapter 4 of the Report.
Pre-legislative consent
5.Both principle and practical politics require that before the draft Charter were presented to the Westminster Parliament it would be necessary to secure the substantive consensus and formal support of the devolved legislatures and administrations.
6.Accordingly it is proposed that something along the lines of the Legislative Consent procedures in each of the devolved legislatures would be applied to consideration and approval of a draft of this Charter, before it were introduced into the Westminster Parliament.
Clause 1 Purpose of Charter
7.Clause 1 provides that the purpose of the resultant Act would be to enact a Charter of the Union setting out the fundamental principles governing the allocation of powers and constitutional relationships between the United Kingdom and its constituent nations and parts.
8.The fundamental principles are entrenched by provision in Clause 1(2) expressly making any enactment, whether passed before or after the Charter, subject to them. This would provide a degree of permanence to our devolution arrangements within the limits of Parliamentary sovereignty, similar to the entrenching approach taken to other “constitutional statutes”615, including the European Communities Act 1972 and the Human Rights Act 1998. Clause 1(3) includes an express requirement for the courts, public authorities and the devolved legislatures to have regard to the fundamental principles wherever relevant.
9.A number of recommendations in the Report are not dealt with in this Draft Charter but they accord implicitly with the implementation of the fundamental principles. For example—
(a)the principles of certainty and transparency also suggest that there should be a clear enactment that the UK Parliament does not legislate on devolved matters without the consent of the devolved legislature, rather than addressing this issue by means of an informal convention (the “Sewel Convention”) (Chapter 3 of the Report);
(b)the principles of equality and autonomy would govern the requirement that Scottish MPs do not vote on matters affecting England alone (Chapter 5 of the Report).
10.The fundamental principles are equally applicable in relation to regional devolution in England (or elsewhere); and legislation providing for regional devolution would be expected to apply these principles.
Clause 2 The fundamental principles
11.Clause 2 sets out the fundamental principles which constitute the basis of the Union of the four parts of the United Kingdom. The principles are drawn directly from Chapter 4 of the Report.
12.Principles 1 to 4 express the voluntary nature of the Union, with each component part being entitled to a form of government which respects the cultural characteristics and identities of its people and is most responsive to its needs in accordance with the principles of autonomy and subsidiarity.
13.Principles 5 declares democracy, the rule of law, equality and fundamental rights and freedoms as inherent in the constitution of the United Kingdom and the constituent nations and parts. Principle 6 requires features of the rule of law to guide the processes of inter-governmental arrangements, replacing the uncertain and un-transparent arrangements that now exist (Chapter 2 of the Report).
14.Principle 7 entrenches executive responsibility to the legislature on the part of both HM Government and the devolved governments.
15.Principle 8 identifies defence and security as key objectives of the Union.
16.Principles 9 to 11 set out the economic principles of the Union, based on a single market and the fair pooling of resources and sharing of risks.
17.Principle 12 establishes a fundamental principle of fair dealing between the UK governments.
Clause 3 Consent by referendum
18.The Report says616: “The principle of consent is of cardinal importance. The United Kingdom is a voluntary union of nations. The means by which each nation may express what the Scottish Claim of Right called the “sovereign will” of its people is, in the modern era, the referendum.” Clause 3(1) accordingly establishes the principle that a part of the United Kingdom should not leave except on the basis of a referendum.
19.The responsibility for arranging for a secession referendum would fall on the relevant devolved government, in accordance with clause 3(2). But the Report was concerned that “It is important that referendums do not become ‘neverendums’ in which the same question is repeatedly put to the electorate until the ‘correct’ answer is returned.”; so clause 3(3) provides that secession referendums may not be held more frequently than once in 15 years.
Clause 4 The courts
20.Clause 4 turns to the way in which the principles may ultimately be enforced through the courts. The Report recommended617 “that the Supreme Court give careful consideration to whether devolution appeals should ordinarily be heard by enlarged panels of seven or nine Justices, to include judges from Scotland, from Northern Ireland, from England and Wales and, as Welsh law may increasingly diverge from English law, from Wales”.
21.In order to ensure that this recommendation can be implemented, clause 4(1) requires Supreme Court selection commissions (which appoint judges when vacancies arise) to take account of the importance of ensuring that the Supreme Court represents each of the UK nations and parts, and has the necessary authority and experience for the resolution of disputes between the UK Government and the UK nations and parts, or between the UK nations or parts. (That could include, in practice, ensuring that a case turning on Scots law was decided by a Bench with a majority of judges whose professional and judicial practice has been in Scots law.)
22.The Report also recommended618 that “In anticipation of the Supreme Court playing a larger part in the adjudication of our territorial system, … legislation … set out principles to guide judicial interpretation of the extent of the devolved authorities’ powers as plenary law-maker”. For this purpose clause 4(2) requires Acts of the devolved legislatures to be construed in accordance with the fundamental principles of the United Kingdom and in a manner that respects the national status of each legislature.
Clause 5 Interpretation
23.The definition in clause 5(1) of “the nations and parts of the United Kingdom” is designed to reflect the fact that not all the parts of the United Kingdom presently necessarily see themselves as having separate nation status.
24.Paragraph (e) of the definition also ensures that any regions or areas which acquire devolved government are regulated in their relationship with the remainder of the United Kingdom by the same principles as determine the relationship between the existing parts.
25.Were a decision taken to establish an English Parliament and an English Government, they would need to be added to the lists in clause 5(2) and (3).
614 Bingham Centre for the Rule of Law, British Institute of International and Comparative Law, May 2015
615 Which are protected from at least implied repeal – see Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) (the “Metric Martyrs” case) and R. (on the application of Buckinghamshire CC) v Secretary of State for Transport [2014] UKSC 3 (the HS2 case).
616 Paragraph 4.2
617 Paragraph 3.3
618 Paragraph 3.3