INSTITUTE FOR PUBLIC POLICY RESEARCH
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			Trustees
			Baroness Blackstone (Chairman) Philip Hughes
			Professor Patrick Bateson FRS Jeremy Isaacs
			Tony Christopher (Treasurer) Kate Mortimer
			Lord Donoughue Herman Ouseley
			Dr John Eatwell (Secretary) Professor Bhikhu Parekh
			John Edmonds Emma Rothschild
			Sir Denis Forman Tom Sawyer
			Lord Hollick
			2492/Design and Print by Tony Flower/Redesign
			ISBN 1 87452 42 6
			© IPPR 1991
			The
			Constitution
			of the
			United
			Kingdom
			CONTENTS
			Preface
			INTRODUCTION
			THE CONSTITUTION
			COMMENTARY
			Page
			1-2
			3-30
			pp 1-136
			pp 1-121
			1
			PREFACE
			This Constitution has been drafted in the conviction that an example
			would advance the public argument more effectively than further
			general discussion of the problems which it raises and attempts to
			resolve. The project could not have been undertaken without the
			generous support of the Joseph Rowntree Charitable Trust, whose
			grant enabled us to hold countless meetings of the various drafting
			groups, to commission specific pieces of work and to employ a
			coordinator to keep the show on the road. We are grateful to the
			Trustees for their support and to the Assistant Secretary Heather
			Swailes for the helpful way in which she has administered the grant.
			Nor would the project have been possible without the willingness of
			many people to give freely of their time and knowledge, either as
			members of a working party, as contributors on particular subjects, or
			as advisors, consultants and critics:
			Advisory Group
			Professors Anthony Bradley, Terence Daintith, Jeffrey Jowell, Patrick
			McAuslan and Keith Patchett, and Anthony Lester QC.
			Working Parties
			Dr Robert Blackburn, Professor Gavin Drewry, Professor Ronald
			Dworkin, Ann Dummett, Patricia Hewitt, Sir William Goodhart QC,
			Nicola Lacey, John McEldowney, Dr Jeremy Mitchell, Nuala Mole,
			Dawn Oliver and Sarah Spencer.
			Contributors to draft
			Brice Dickson, Laurens Fransman, Josh Hillman, Beverley Lang, Dr
			Gerry Rubin and Professor Ian Willock
			Advice and Consultation
			Geoffrey Bindman, Professor Kevin Boyle, Madeleine Colvin, Alistair Darling MP, Professor Keith Ewing, Tess Gill, Peter Gill, Professor
			Malcolm Grant, Professor John Kay, Professor Norman Lewis, Laurence Lustgarten, Professor David Marquand, Bob McCreadie, Ron
			Medlow, Richard Norton Taylor, Professor Claire Palley, William
			Plowden, Clive Ponting, Jim Ross, Anthony Scrivener QC, Stephen
			Smith, Ian Snaith, Dr Hugo Storey, Tony Travers and Professor Sir
			David Williams.
			2
			A draft by many hands is apt to look like patchwork. That this final
			version has some consistency of style and substance is due to the heroic
			efforts of Keith Patchett who at a late stage took the draft in hand and
			imposed order upon it. We are greatly indebted to him. Likewise to
			Sarah Spencer whose skill, patience, good humour and persistence has
			bought the project to completion.
			Nobody involved agrees with everything in this Constitution and that
			includes myself. The responsibility for the final result is however my
			own and I am doubly grateful to all who have contributed for their
			forbearance throughout this exercise in guided democracy.
			James Cornford
			July 1991
			3
			INTRODUCTION
			I
			This draft Constitution for the United Kingdom consists of 129
			Articles and 6 schedules, accompanied by a commentary which
			explains the derivation and purpose of each provision. The main
			features of the Constitution are as follows:
			(1) The Constitution is the sole source of authority for all public
			action, executive, legislative or judicial. Henceforth authority
			must be sought not in common law principles such as parliamentary sovereignty or prerogative power, nor in constitutional conventions, such as ministerial responsibility, but in the written
			provisions of this Constitution. (Article 1)
			(2) The Constitution is placed in the context of the United Kingdom’s international and European commitments. (Article 1).
			Specific commitment to European Community Law is provided
			under Article 50 and to international obligations under Article
			51.
			(3) The Constitution incorporates a Bill of Rights based on the European Convention on Human Rights and on the United Nations
			International Covenant on Civil and Political Rights, to both of
			which the United Kingdom is signatory, and provides the means
			for its enforcement (Articles 2 to 26). It also includes a
			declaratory statement of Social and Economic Rights (Article
			27) and public rights of access to official information and
			controls on the use of personal information by public authorities.
			(Articles 28 and 29).
			(4) British nationality is defined, together with the rules governing
			the acquisition and loss of British nationality, allegiance and dual
			nationality, and the civic rights of non-nationals (Articles 30 to
			33).
			(5) The position of the Queen as Head of State is confirmed but the
			residual prerogative powers of the Monarchy (eg over the appointment of the Prime Minister) are removed and the Monarchy
			becomes a wholly dignified part of the Constitution (Articles 34
			to 39).
			4 INTRODUCTION
			(6) The prerogative powers exercised by the Executive are defined
			in the Constitution and subjected to Parliamentary control: eg the
			making of treaties (Article 51), the declaration of war (Article
			122), deployment of the Armed Forces (Article 123), national
			security (Article 126) and declarations of emergency (Article
			128).Substantial areas of patronage are removed from the Executive by transferring powers of appointment from Ministers to
			the Public Services Commission (Article 115) and a Judicial Appointments Commission for the United Kingdom and Judicial
			Services Commissions for England and Wales, Scotland and
			Northern Ireland (Articles 102 and 103).
			(7) The Prime Minister is elected by the House of Commons and is
			subject to a personal vote of no confidence which does not
			involve the dissolution of the House. The Prime Minister appoints a deputy, Ministers and the Cabinet. Ministers are required
			to give a statement of their responsibilities to Parliament on
			taking office and are bound by a Code of Conduct (Articles 40 to
			46)
			(8) The House of Commons is elected for a fixed term of four years,
			with the possibility of dissolution but with no extension of the
			term of Parliament (Article 60).
			(9) The House of Lords is replaced by an elected Second Chamber
			(Article 57), also elected for a four year term, but at a two year
			interval from the election for the House of Commons, and not
			subject to dissolution (Article 60 and Schedule 3).
			(10) Both Houses have a smaller membership than at present and both
			are to be elected by forms of Proportional Representation: the
			House of Commons by a variant of the Additional Member
			System and the Second Chamber by the Single Transferable Vote
			(Articles 83 to 86 and Schedule 3).
			(11) The House of Commons retains its present supremacy in relation
			to financial and general legislation, but the Second Chamber has
			equal powers concerning amendments to the Constitution and to
			constitutional legislation, that is statutes which give effect to or
			have a direct bearing on provisions of the Constitution, eg
			election law or matters arising from the Bill of Rights (Articles
			INTRODUCTION 5
			65 to 70).
			(12) Legislative power is shared between Parliament and elected
			Assemblies for Scotland, Wales, Northern Ireland and twelve
			English regions. Parliament retains exclusive rights over those
			matters normally retained for the central government in federal
			Constitutions, while the Assemblies’ powers are based on the
			Northern Ireland Constitution Act 1973 and the present executive responsibilities of the Scottish Office (Articles 52 to 54).
			Parliament retains concurrent powers to legislate on matters
			where legislation by an Assembly would be inadequate or would
			have adverse effects outside its boundaries (Article 55).
			(13) The Assemblies are to be financed by an entitlement to the
			proceeds of the personal income tax, distributed according to an
			entrenched formula based on population, with power to vary the
			standard rate of tax at the margin. The income tax would
			continue to be a United Kingdom tax set by Parliament and
			administered by the Inland Revenue. (Article 80 and Schedule 2)
			(14) The Constitution requires that each Assembly shall establish
			elected local authorities but leaves the details of their functions
			and organization to the Assemblies in order to recognise the
			different circumstances of the nations and regions and to encourage diversity. Local authorities are given by the Constitution
			the right to levy rates on domestic and commercial property.
			(Article 82)
			(15) A number of independent bodies are established to administer
			and monitor constitutional matters:
			a. A Human Rights Commission to promote the public understanding of human rights, to investigate breaches of the Bill
			of Rights, to assist with individual complaints about the violation of rights, and to challenge legislation which is inconsistent with the Bill of Rights (Article 26).
			b. A Constitutional Commission based in Parliament with the
			responsibility to monitor constitutional developments, to
			publish codes of conduct for elected officials, and through a
			separate committee to investigate the conduct of Ministers
			and other elected officials (Articles 76 and 77).
			c. An Electoral Commission charged with responsibility for
			6 INTRODUCTION
			constituency boundaries at all levels from the European
			Parliament to local authorities: for keeping under review the
			workings of the electoral system including campaigning and
			election finance; for the investigation of complaints about
			the conduct of elections; and for the registration of political
			parties (Articles 88 to 91).
			d. A Judicial Appointments Commission to make recommendations for the appointment to the Supreme Court (Article 102) and Judicial Services Commissions for England
			and Wales, Scotland and Northern Ireland, to make judicial
			appointments, and to investigate complaints of judicial misconduct; and Judicial Councils to advise the Minister of
			Justice on the administration of justice (Articles 103 to 105).
			e. A Public Services Commission to establish and monitor
			standards and codes of conduct for the public services and to
			make public appointments outside the regular civil service
			(Articles 115 and 116); and a Public Services Complaints
			Commission to investigate complaints into breaches of
			codes or regulations, malversation of a public service or
			improper conduct towards officials by Ministers or other
			elected executives (Article 117).
			f. A Commission for Public Administration to investigate
			complaints of failures of administration or unfair administration, to investigate the conduct and practices of public
			authorities, to review the constitution and workings of tribunals and inquiries, and to promote standards of good administration (Article 119).
			(16) A written Constitution gives a much greater role to the Judiciary
			and we have therefore given particular attention to the reorganisation of the administration of justice and the independence of
			the Judiciary. There is to be a Supreme Court for the United
			Kingdom, appointed on the recommendation of a United Kingdom Judicial Appointments Commission, with original and
			exclusive jurisdiction in any proceeding concerning the validity
			of Parliamentary or Assembly legislation brought by the Government of the United Kingdom or an Assembly Executive; and
			appellate jurisdiction in other constitutional matters. The office
			of Lord Chancellor will cease to exist and his functions in
			relation to the legal system are taken over by a Minister of J ustice
			(Articles 96 to 100). The Attorney General becomes a non political legal adviser to the Government (Article 47).
			INTRODUCTION 7
			These Articles and the many other provisions of the Constitution are
			more fully discussed in the Commentary which follows the text of the
			Constitution itself. The second part of the introduction gives a general
			account of some of the constitutional and political considerations
			which lie behind the detailed proposals we have made.
			II
			New Constitutions are generally bom of crisis, political upheaval, the
			struggle for independence and the breakdown of regimes. Few appear
			to have arisen from peaceful and orderly reflection on the shortcomings of an existing and still functioning predecessor. With events in the
			Soviet Union and South Africa before us, we do well to be sceptical
			about claims of a constitutional crisis in the United Kingdom and to
			keep a sense of proportion about our present discontents. Nevertheless
			they are real and there is no harm, and may be virtue, in trying to
			analyse present difficulties and to anticipate the problems to which
			they will give rise. Membership of the European Community has
			already raised constitutional issues of profound importance, to which
			we in the United Kingdom have made no ready or coherent response.
			The present Government and its predecessor have launched far reaching changes in the organisation of Whitehall and of local government
			with scant consideration for their constitutional implications. The
			major opposition parties are committed to further changes, particularly
			with regard to Scotland, which would also have serious implications
			for current constitutional practice should they come to pass.
			There has over the last twenty years been a growing chorus of
			complaint about aspects of British government which in any other
			system would be recognised as constitutional: that is, complaints of an
			electoral system which seriously distorts representation, excludes
			middle opinion, and threatens to perpetuate rule by the largest minority
			party; of a Parliament which is dominated by the executive through its
			control of procedure and the disciplines of party, patronage and the
			press, and which therefore fails to scrutinise effectively the conduct of
			government or to play any constructive role in legislation; of a national
			administration which practices excessive secrecy and against whose
			actions there is inadequate redress; of a local government which is at
			once the dependent of and the scapegoat for central government and
			which enjoys little support either in Parliament or among the electorate; of security services which are protected from Parliamentary
			scrutiny and which appear when the veil is briefly twitched aside to be
			8 INTRODUCTION
			barely under the control of Ministers; of a police force which has
			appeared increasingly in a political role, which has little accountability, which has absorbed more and more resources while crime rates
			rise, and whose reputation for probity has been sadly dented.
			For each of these ills there is a specific remedy: electoral reform, more
			powers for select committees and a reformed Second Chamber, Freedom of Information, the restructuring of local government (again) and
			devolution, a Bill of Rights or incorporation of the European Convention on Human Rights, and other proposals for the statutory protection
			of privacy, the control of the security services, the strengthening of
			employment rights and of anti-discrimination measures brought together in Labour’s Charter o f Rights. What has emerged over the last
			three or four years is a growing interest across the political spectrum
			in bringing these separate complaints together. This reflects a common
			understanding of the underlying problem which is best expressed in
			Dunning’s famous motion of 1780: “the power of the executive has
			increased, is increasing and ought to be diminished.” A more recent
			statement of the problem may be found in The Scottish Claim o f Right
			(1988): “The English Constitution provides for only one source of
			power: the Crown-in-Parliament. That one source is now mainly
			embodied in the Prime Minister, who has appropriated almost all the
			royal prerogatives . . . In fact, if not in theory, the Prime Minister is
			Head of State, Chief Executive, and Chief Legislator, and while in
			office is not circumscribed by any clear or binding constitutional
			limitations. Against this there is in the United Kingdom not a single
			alternative source of secure constitutional power at any level”. Political power there certainly is. Even if it speaks indirectly through the
			Gothick Constitution of the Conservative Party, the electorate has the
			last word.
			Entrenchm ent
			But this is not constitutional power and it is the belief that restraints on
			the executive and on the centralisation of power must be given
			constitutional rather than political force that has become the common
			theme of reformers. The need for the entrenchment of rights both for
			individuals and for devolved governments implies a constitutional
			document. This has been for long the view of the Liberal Democrats
			and their predecessors and has been given outline expression in their
			Federal Green Paper No 13: We the People . . . Towards a Written
			Constitution. It is the theme of Charter 88, which has evoked such a
			INTRODUCTION 9
			remarkable response. It is at least implicit in the proceedings of the
			Scottish Convention. And it has been given an interesting dimension
			in recent work of the Institute for Economic Affairs as a protection
			against the encroachments of the European Community. There is one
			reforming voice not in harmony with this chorus, that of Mr Tony
			Benn, whose Commonwealth of Britain Bill attacks many of the same
			targets. But Mr Benn is a traditional radical, a robust defender of
			Parliamentary supremacy and no friend to Kings, Lords, priests or
			judges.
			Here we approach the heart of the matter: particular reforms may be
			important and interesting. But the essential question is whether the
			time has come not to change the historical constitution incrementally
			as has been done in the past, but to change the basis of the Constitution.
			That is, to change from a single fundamental principle, the supremacy
			of Parliament, which is founded in custom and usage as recognised by
			the courts, to a fundamental law which is prior to, independent of and
			the source of authority for the system of government. A codification of
			existing practice and convention might be convenient, but it would not
			be enough. It is the peculiarity of our Constitution not that it is not
			codified, but that the laws which make it up, whether statute, common
			or case law have no special status. Parliament can make and unmake
			them as it chooses; a million British subjects can be deprived of their
			rights of abode by the same means as an alteration of the speed limit.
			Essential features of the Constitution have no basis in law at all.
			All constitutions depend for their working on conventions and informal understandings: there is no machine which goes of itself. B ut in our
			case conventions govern essential constitutional issues, such as the
			Sovereign’s use of her powers, the rules for the formation of governments and the dissolution of Parliament, the meaning of Ministerial
			responsibility to Parliament, or the organisation of the civil service and
			the duties of civil servants. All these are governed by convention and
			the beauty of conventions is that we do not know whether or how they
			will apply until they are put to the test. The one thing we can be certain
			of is the supremacy of Parliament, which can in theory do anything it
			likes: there is no part of the Constitution that cannot be changed by
			ordinary Parliamentary procedures. Where else could a Government
			confidently embark on a comprehensive review of local authorities,
			their finance, structure, functions and internal management, to be
			undertaken in a matter of weeks without any public discussion of the
			options. And this by a Government which by the same process has just
			10 INTRODUCTION
			scored a spectacular own goal with the Community Charge.
			The much vaunted flexibility of the Constitution suits nobody so much
			as an executive which has inherited a reservoir of prerogative powers
			and enjoys a dominant position in relation to the legislature and all
			other public authorities. In the past these features of the Constitution,
			like the party system which exploits them, have been justified on the
			grounds that they help to provide firm and effective government.
			There is no doubt that single party government has advantages of
			cohesion, speed of response and clear locus of responsibility. It is less
			clear that it performs any better than other systems in the promotion of
			effective and acceptable public policies. There may be some truth in
			the view that there would be less concern about the Constitution if the
			policies of successive British governments had been more successful.
			But there remains a constitutional case for reform: that the protection
			of individual rights, the decentralisation of power within the United
			Kingdom and the United Kingdom’s role in the development of the
			European Community would all be more readily and more satisfactorily achieved within an explicitly constitutional framework.
			Drafting concentrates the mind. It is for this reason that we have chosen
			to produce the text of a Constitution rather than another general
			discussion of the issues. The fact that we have gone to this trouble does
			not mean that we believe that the provisions of this Constitution are the
			only or even the ideal answer. Although the proposal for a written
			Constitution is in itself radical, much of the content is in the best (or
			worst) tradition of gradualism. The main features of the present
			Constitution are left more or less intact: in particular the Executive is
			drawn from the legislature, with all that entails for party government,
			the control of procedure, discipline and the purpose of elections.
			Some of the most disturbing effects of these proposals, from the
			political point of view, could be achieved by the introduction of
			proportional representation for elections by itself, or indeed without it
			by the chance of a hung parliament. The supremacy of the Constitution,
			however, entails, a problem of a different order: a much greater
			constitutional role for the Judiciary.
			The involvement of the Judiciary in what are seen as essentially
			political issues is probably the strongest ground of objection across the
			political spectrum. The problem is that while not all political questions
			are constitutional, all constitutional questions are inherently political.
			To separate off some questions and declare them fit for judicial
			INTRODUCTION II
			interpretation and decision is an act of political will: of abnegation for
			politicians and of distrust of politicians on the part of the rest of us. We
			can leave aside aspersions on the character, opinions, social background and intellectual formation of lawyers. Politicians are imperfect
			and the process of election which gives them legitimacy also exposes
			them to immediate pressures from which the judges are to some extent
			protected. We need rules to govern the exercise of power. It is in the
			interest of the less powerful that those rules should be clear and
			explicit, to lessen their manipulation by the more powerful. We need
			rules that we can accept as fair in general, though we object to their
			application in particulars. We need rules to protect ourselves and others
			against ourselves. And we need referees, even bad referees, to interpret
			and enforce the rules.
			Nursery propositions but none the worse for that: constitutional questions do not necessarily require intellectual subtlety, so much as
			practical judgement. What are proper matters to be decided by judges
			depends in part on a view as to the likely outcome. We think that under
			existing and foreseeable circumstances the present Constitution gives
			too much power to the Executive both in relation to individuals and in
			relation to its political opponents. Traditionally the exercise of this
			power has been tempered by the need to secure reelection and the
			existence of a constitutional opposition ready to take over. Power has
			been and has had to be exercised with forbearance and this is a great
			and indisputable blessing. Nevertheless the advantage of incumbent
			governments over their opponents is substantial and increasing; and
			the replacement of one government by another is not a sufficient
			deterrent to the abuse of power by successive governments. We are
			therefore in favour of tightening the rules, endeavouring to provide
			greater protection to the rights and freedoms both of individuals and of
			other collectivities against the government, and therefore entrusting
			greater powers to the judges, warts and all.
			The role of the Judiciary is a vexed question both in the debate on the
			protection of individual rights and more generally when it is proposed
			to limit the powers of Parliament and substitute judicial for political
			decisions on matters of public policy. Those opposed to such limitations and substitution argue that, in a system of representative government, the views of the majority ought to prevail and that to entrench a
			statute which restricts Parliament’s freedom to do what it thinks best
			in relation to freedom of speech or rights of property, is to undermine
			the legitimacy of government itself. This argument has deep roots in
			12 INTRODUCTION
			British political thought; it is suspicious of entrenched rights and
			considers that the only way to determine their proper limits is by the
			political decision of the representatives of the people. Conversely, the
			argument contends that any restriction on what the majority wants is
			undemocratic.
			We take a radically different view. Representative government cannot
			work fairly or at all without certain agreed prior conditions or ‘rules of
			the game’. Everybody understands that a government which changes
			the entitlement to vote in elections is doing something different from
			fixing the rate of VAT. Although in the UK we do not currently
			distinguish between constitutional and ordinary law in our parliamentary procedures, the difference is real and fundamental.
			Bill o f Rights
			In our view certain individual rights are also part of the rules of the
			democratic game. Freedom of expression is one such right. It protects
			the right to speak one’s mind, to persuade others; and it protects the
			right of others to hear a differing view. It allows individuals to obtain
			official information and to comment on the record of the government
			of the day. There is not much point in holding elections if censorship
			prevents the electors from making a critical judgment of the government. Freedom of speech is therefore part of democracy’s structure and
			not just an optional extra. The fact that in some countries constitutional
			rights are widely abused and subverted is not an argument against
			constitutional rights. It is a warning that they require to be guarded
			jealously even when they are given a special status in law.
			Speech-related freedoms are not the only rights fundamental to a
			democracy. In a democratic society every individual is entitled to equal
			respect. Everyone should have an equal say in the election of the
			government and everyone should be protected from arbitrary arrest,
			expropriation of property without compensation, from cruel and
			unusual punishment and so forth. Failure to provide such protection
			may expose individuals to intimidation, harassment, discrimination,
			degradation or punishment that is inconsistent with the respect democracy requires government to accord each of its citizens.
			Some of these rights and freedoms are protected now by statute and by
			the criminal law. In the past this protection has been judged by
			governments to be sufficient and the sophisticated have comforted
			themselves with the thought that liberty lies in the interstices of the
			INTRODUCTION 13
			Constitution. We do not regard these protections as adequate now, if
			they ever were. The abuses of civil liberties in Britain and Northern
			Ireland are well documented elsewhere and the United Kingdom’s
			record at the European Court of Human Rights demonstrates that our
			domestic law and practice do not adequately conform with our international human rights obligations.
			It is often argued that it is the Legislature’s role to protect individual
			rights and freedoms and that legislation enacting specific rights is
			preferable to a generally worded Bill of Rights. This argument is
			mistaken on a number of grounds. First, a Bill of Rights is intended to
			be open-textured so that it can be applied, without amendment, to new
			issues and problems as they arise. These cannot always be foreseen and
			may therefore not be covered by earlier legislation, however detailed.
			Someone whose rights have been infringed should not have to wait
			until new legislation catches up with changing circumstances. Secondly, a Bill of Rights cannot be dismissed as simply a statement of
			good intent on the part of the government, because it is enforceable in
			the courts. As such it acts in a real way to strengthen the position of the
			individual vis á vis the State, government and public authorities.
			Thirdly, there are occasions on which the Legislature is unwilling to
			protect rights, for example when panicked by an emergency or motivated by prejudice. Some anti-terrorist and immigration legislation are
			two apt examples. In such cases, enforcement of a Bill of Rights by the
			courts holds Parliament to a paramount commitment to protect basic
			freedoms, and protects minorities against the tyranny of the majority.
			A further argument against adopting a Bill of Rights is that it would be
			no substitute for a comprehensive programme of legislative reform
			such as the introduction of a Freedom of Information Act, strengthening of statutory equality laws, reform of immigration legislation and
			the strengthening of statutory rights for suspects. We agree that a Bill
			of Rights would be no substitute for such a programme and do not
			propose it as an alternative. Both kinds of change are needed: they are
			not mutually exclusive.
			It is also agreed that the working of the European Convention is, in
			some respects, unacceptable, allowing wide exceptions to certain
			rights and excluding others altogether. Our proposal, incorporating
			provisions from the International Covenant on Civic and Political
			Rights as well as the European Convention on Human Rights, seeks to
			14 INTRODUCTION
			overcome this difficulty. It would not only secure compliance with our
			international obligations but extend the protection which they provide,
			where necessary. Article 21 will ensure, for the avoidance of doubt,
			that the exception clauses are interpreted strictly in favour of individuals and minorities, allowing restriction of their rights only in circumstances which make it ‘strictly necessary’. The burden of proof will be
			on the public authority to establish that this is the case. In respect of
			most of the Articles, exceptions are also limited to those circumstances
			which make restrictions ‘necessary in a democratic society’ for particular, limited reasons.
			A Government Discussion Paper of June 1976 (‘Legislation on Human
			Rights - with Particular Reference to the European Convention. A
			Discussion Document’) identified the following four special consequences of a Bill of Rights which its advocates claim as advantages:
			‘a. its provisions, being drafted in general terms, would be open
			to reinterpretation by future generations in accordance with their
			needs;
			‘b. its special status could mean that it provided an effective and
			quasi-permanent check on oppressive action by future governments and indeed Parliaments;
			‘c. it could be held to ensure conformity with current international obligations which themselves are framed in general and
			quasi-permanent terms;
			‘d. it would help to provide a more systematic concern with
			fundamental values, and more informed public discussion about
			them; and would bring about corresponding changes in current
			methods of making, applying and interpreting the law as a
			whole.’
			Fifteen years later, these advantages are more obvious.
			The fourth of these arguments, which applies equally to the Constitution as a whole, has received the least attention in the debate, yet it
			could prove to be highly significant. Recent government restrictions
			on civil rights and liberties have not been marked by widespread public
			protest. The public in general are more aware of the importance of
			maintaining law and order, or national security, than of protecting the
			sometime competing requirements of, say, freedom of speech, per­
			INTRODUCTION 15
			sonal privacy and confidentiality. The Bill of Rights would provide us
			with a statement of principles, a set of basic values on which there
			would be a general consensus of support across the political spectrum
			(even though there would be disagreements about their implementation in practice). Learning about these principles would become part
			of the school curriculum and adult education, encouraging pupils and
			students to debate the importance of protecting human rights and the
			difficulties which arise when they conflict. Such a development would
			encourage a more informed public, more sensitive to the implications
			of restricting civil liberties and of extending them.
			No one should suppose that the Bill of Rights will give an easy solution
			to every difficult issue concerning individual rights and the proper
			extent of collective interests. There will still be many important issues
			involving aspects of conscience, morality, and religious belief that
			cannot be resolved in a way that will attract unanimous support. The
			Bill of Rights is no substitute for political decisions taken by the
			electorate and by Parliament, but it should help to ensure that those
			decisions do not violate fundamental human rights and freedoms.
			Effective protection of human rights requires effective access to
			justice. The present legal aid scheme enables the very poor to face the
			risks of expensive litigation, but the great majority of people are unable
			to do so. In order to ensure that the Bill of Rights is effective we have
			created a United Kingdom Human Rights Commission to bring
			proceedings in its own name, assist individual complainants in cases
			involving alleged breaches of the Bill of Rights and investigate
			practices and procedures which appear to be incompatible with it. In
			our view, the inclusion in the Constitution of measures to improve
			access to justice in the field of public law, including the creation of a
			Human Rights Commission, is a necessary condition for an effective
			Bill of Rights.
			Although it would be important to avoid detracting from the Commission’s primary law enforcement role, it would also be able to act in an
			advisory capacity to Parliament in relation to pending legislation and
			other matters. Much unnecessary litigation could be avoided if Parliament established its own Human Rights Committee to scrutinise
			proposed domestic (and European) legislation and to examine the
			effect of existing legislation and policies in the context of the UK’s
			international human rights obligations and its own Bill of Rights. The
			Government’s attention could be drawn systematically to the implica-
			16 INTRODUCTION
			tions of its policies and proposals for individual rights and the necessary adjustments made to avoid later litigation.
			The growing importance of European institutions in Britain’s political
			and legal system give added weight to the case for constitutional
			protection. The UK is now the only member of the Council of Europe
			with no written Constitution or enforceable Bill of Rights, our partners
			in Europe providing remedies for their citizens which are not available
			to UK citizens through the British courts. Moreover, the Westminster
			Parliament has accepted, through the Treaty of Rome and Single
			European Act 1986, the supremacy of European Community Law.
			The British courts have become increasingly accustomed to interpreting domestic law in the light of EC law and, where necessary,
			overriding the domestic legislation. It is hardly defensible for Parliament to qualify its own sovereignty in commercial and employment
			matters while refusing to do so in matters such as human rights.
			We believe that it is necessary to adopt an alternative constitutional
			idea, namely that democracy is not the same thing as majority rule and
			that, to make democracy a reality, fundamental individual rights and
			the basic structure and rules of government should have legal protection that even a properly elected Parliament cannot change by ordinary
			legislation. Constitutional government requires that these ground rules
			be part of the fundamental law, and that judges, who are not elected and
			who are therefore removed from the pressures of partisan politics,
			should be responsible for interpreting and enforcing them as they are
			for all other parts of the legal system. These arguments as they apply
			to the Bill of Rights are set out in greater detail in A British Bill o f Rights
			(1990) available from IPPR.
			The Judiciary
			Opponents of a Bill of Rights often argue that British judges are not
			qualified by their training or experience to interpret and apply broadly
			phrased, open-textured documents of this kind. According to this point
			of view, British judges would be likely to adopt restrictive interpretation of basic rights and freedoms, giving too much leeway to governments and public authorities by a loose interpretation of the exception
			clauses. On the other hand some, especially in Westminster and in
			Whitehall, fear that British judges would be too interventionist, usurping the role of government, or of the elected representatives of the
			people in Parliament, and limiting state power in favour of individual
			INTRODUCTION 17
			and minority rights.
			It is undoubtedly true that British judges have interpreted the law in
			significant cases in a way which has restricted individual rights and
			freedoms. The record, however, has by no means been entirely negative. During the past quarter century, the British Judiciary have
			strengthened a vital part of the British constitutional and legal system
			by developing principles and procedures in administrative law. The
			process of the judicial review of administrative action, for instance,
			undertaken by High Court judges, has been a significant success.
			Unaided by any legislation to codify the substantive principles of
			administrative law, the courts have used three main common law
			principles - legality, procedural propriety and rationality - to curb the
			misuses of power by public bodies and by private bodies exercising
			public power. They have done so in the case of many decisions of
			Conservative as well as of Labour Ministers. They have not been overadventurous in this process but have remained careful to respect the
			separation of powers and the need to avoid usurping the role of the
			other branches of government.
			In some areas, such as sex discrimination cases, our courts have
			acquired experience and shown great skill in interpreting and applying
			legislation dealing with human rights, and they have also shown
			themselves fully capable of interpreting and applying the relevant
			principles of Community law. Indeed, their record in this respect is
			much better than the record of some of the most senior courts elsewhere
			in the European Community.
			The Law Lords sitting as the Judicial Committee of the Privy Council,
			interpret and apply the Bill of Rights contained in the written Constitution of independent Commonwealth countries. Again the record
			shows that, with some exceptions, the Privy Council has over the last
			fifteen years become generally more liberal in its interpretation of
			these Bills of Rights, which are modelled upon the European Convention: purposive and generous rather than literal and restrictive.
			A recognition of the extent to which the British Judiciary has adapted
			in recent years cannot, however, make us complacent about the
			approach which judges, and magistrates, might take. Being required to
			apply the Bill of Rights and uphold the Constitution would in itself
			influence their approach and encourage new ways of thinking. It is
			clearly unlikely that an incorporated Bill of Rights, for instance, would
			18 INTRODUCTION
			make the judges any less sensitive to fundamental rights and freedoms
			than they may now be. Nevertheless, there is well founded concern that
			the narrow social and professional base from which the Judiciary is
			drawn would be reflected in the decisions reached on some of the
			controversial issues likely to arise.
			It is generally accepted that direct political considerations now play
			very little part in the selection of judges. This was not always the case
			in the past and it might not be in future when the courts have important
			constitutional powers. Appointments to the two highest levels of the
			Bench - the House of Lords and the Court of Appeal - are made by the
			Prime Minister, no doubt with the advice of the Lord Chancellor. All
			other judicial appointments are made by the Lord Chancellor, who is
			of course a politician and a member of the Cabinet. In our proposed
			system, the House of Lords is displaced by an elected Second Chamber
			and its Judicial Committee will be replaced by a Supreme Court with
			broadly similar functions. There will however be important changes:
			the Supreme Court will have power to declare Acts of Parliament
			unconstitutional. Any written Constitution needs to incorporate some
			special procedures for its own amendment: without that the Constitution has no special validity and merely becomes a codification of
			statutes. There are several reasons why a special procedure is needed.
			First, it gives the Constitution the status which it needs as a fundamental document which is incapable of being altered at the whim of a
			temporary majority. Second, it enables fundamental human rights to
			be entrenched and incapable of being overridden by ordinary legislation. And third, in a federal Constitution, power is shared between the
			central parliament and provincial parliaments. This means that the
			constitutional relationship between the state and its constituent nations
			and regions cannot be altered without the consent of both.
			As soon as you have a Constitution which can only be altered by a
			special procedure, you get the possibility that the legislature may pass
			an Act which is inconsistent with the Constitution but cannot override
			it because it has not been passed by the special procedure. This leads
			to conflicts and conflicts require adjudication: hence a Supreme or
			Constitutional Court. The Supreme Court in this Constitution will
			have the power to make ordinary Acts of Parliament unconstitutional
			and hence play a much more powerful role in the Constitution than the
			present House of Lords. As can be seen from the example of the USA,
			the power to appoint judges to courts with important constitutional
			powers can become a controversial political issue. If no changes were
			INTRODUCTION 19
			made to the present system of appointing judges, the temptation to
			depart from the recent tradition of impartiality injudicial appointments
			might become impossible to resist.
			Judicial Independence
			We have thus been obliged to give particular attention to the problem
			of judicial independence: it is no good relying on the judges for
			protection if they are in the pocket of the Executive. The three essential
			features of judicial independence are
			(1) freedom from political influence in the appointment of judges;
			(2) the protection of judges from undue political pressure while
			serving on the bench; and
			(3) protection from improper removal from office.
			We propose first, that judges should be chosen by a Judicial Services
			Commission. This is made the more necessary by the replacement of
			the quasi-judicial office of Lord Chancellor with the office of Minister
			of Justice, a more overtly political Minister who has no judicial
			function and will not have to be a qualified lawyer. There is nothing
			novel about the idea of a Judicial Services Commission. Many Commonwealth countries have one. Where the present proposals differ is
			that the membership is not predominantly judicial or legal.
			The Judicial Services Commission is given the responsibility for initial
			appointments to the Judiciary and for subsequent promotions, save at
			the highest level where the critical appointments to the Supreme Court
			would be made in a manner similar to that for High Court Judges. The
			names would be put forward by the Joint Appointments Commission,
			but the formal appointment would be made by the Head of State on the
			advice of the Prime Minister. The character of the Supreme Court will
			in the long run be determined by the pool of judges from which it is
			drawn. For that reason the Judicial Services Commission is specifically charged ‘to adopt procedures . . . which will ensure . . . that
			adequate numbers of candidates of both sexes and from diverse racial,
			religious and social backgrounds are considered for appointments.’
			We do not pretend that this can have any immediate or dramatic effect
			on the character of the Bench, but in the longer run it ought to help.
			The Constitution also provides protection for the independence of the
			Judiciary by a better procedure and clear grounds for removal, and for
			20 INTRODUCTION
			protection against the Judiciary by a new procedure for dealing with
			judicial misconduct under the Judicial Services Commission. We do
			not believe that the Judiciary can be directly responsible for the finance
			and administration of the court system, as some have proposed, but do
			believe that judges must retain control over the listing of cases and their
			allocation to members of the Bench. In a controversial case the choice
			of the judge who is to hear it may be of crucial importance. Take for
			example, the ‘Spycatcher’ case. The Judiciary were deeply divided on
			the issues which it raised. It would have been possible to make a pretty
			accurate guess, in advance, as to the side of the fence on which many
			of the judges involved were likely to come down. In any such case, the
			power to allocate a case to a particular judge or judges may therefore
			effectively decide its outcome. A discretionary power of allocation
			must exist, and cases cannot be allocated by some mechanical formula.
			It would clearly conflict with judicial independence if the power of
			allocation were to be exercised by an official in the Ministry of Justice.
			The principle of judicial control of court business is therefore enshrined in the Constitution.
			The Constitution thus does not contain a codification of existing
			practice in the administration of justice, but a series of important
			reforms which should, first, make it more efficient by creating a
			Ministry of Justice to end the present irrational and damaging division
			of responsibility for the courts between the Home Office and the Lord
			Chancellor’s Department; second, increase the independence of the
			Judiciary by transferring responsibility for appointment and promotion to an independent Judicial Services Commission; third, widen the
			background of the Bench and make it more responsive to the feelings
			of litigants by including a powerful lay element in the Judicial Services
			Commission and by creating a formal complaints procedure.
			Local Government
			The second major reason for wanting a written Constitution rather than
			piecemeal reform is to deal with the centralisation of power.
			If we can protect individuals by entrenching their rights, we should try
			to do the same for communities. We reject the vision of a supermarket
			democracy, in which the citizen is the consumer free to choose among
			the identical goods in the local branch of the national government.
			Local government has to be more than a vehicle for delivering national
			policies. Not only do we want different policies in different places:
			democracy requires the active participation of many people in political
			INTRODUCTION 21
			decisions if it is to survive as anything more than a TV panel game.
			But we need to be imaginative in creating the opportunities for people
			to take part. We do not advocate compulsory immersion in politics. We
			all know that politics - party politics especially is the passion of a few,
			the hobby of a few more and at best a spectator sport for the majority.
			Most people need to be involved in matters of direct personal concern,
			but often feel they are kept at arms length and excluded by the
			professionals. Some experiments in participation have been better than
			others: involving a small number of parent governors in technical
			questions of school budgets and personnel management is much less
			important than actively involving all parents in the education of their
			children. There is no doubt that we can make local government more
			accessible. Local government is alive to the importance of its relations
			with the public and needs support and encouragement from national
			government, not the treatment to which it has been subjected in recent
			years.
			11 may, however, not be enough to restore good relations and reform the
			structure and finances of local government. The reason is this: central
			government has and will always have a pressing interest in what local
			government is doing. There will always be pressure for central government to intervene to protect the economy, to maintain common
			standards, to rescue a local minority and so forth. Constitutional
			entrenchment of the powers of local government will not alter that.
			Nor is it possible to draw tidy lines of demarcation between the
			responsibilities of central and local government: there will always be
			a degree of overlap, of fusion and indeed confusion. In federal
			government much public policy is implemented through partnership,
			a word once used in this country also to describe the relations between
			central and local government. The difference is that in a federal
			Constitution both central and local government have constitutional
			standing: local government has a base from which to negotiate. Here,
			local government is the creature of central government: it is whatever
			Parliament says it shall be, which is an invitation not only to continuous
			interference, but to occasional Whitehall engineering to reform local
			government structure, boundaries and functions to whatever the latest
			administration fashion or party advantage dictates. But there is of
			course no ideal or even best practical structure for local government.
			Experience in other countries suggests that local governments can
			adopt a variety of means to provide the services they want to give and
			that talk about x thousand population being necessary to provide such
			and such a service is the dogma of administrative convenience not
			22 INTRODUCTION
			imaginative politics. What local government needs is a strong
			constitutional base and the sense of identity which comes from
			permanent boundaries.
			Devolution
			We have also to consider central government itself and ask whether it
			needs to do all that it tries to do. There are two reasons for this. First,
			because central government is overloaded: Parliament groans under a
			burden of business which it cannot manage properly: the result is a
			mass of ill digested legislation, inadequate scrutiny of government
			activity and failure to grapple with new responsibilities at the European level. The second reason is the need to accommodate the
			legitimate aspirations of the nations that make up the United Kingdom,
			while preserving the benefits of the union which we have painfully
			created over the last five hundred years. This need not and should not
			produce a conflict of loyalties. The question is what is the appropriate
			way to give political expression to these overlapping identities.
			Anybody who has taken the trouble to follow the lively debates in
			Scotland will be aware that there is a growing conviction that Scottish
			identity requires a more visible political expression in the way Scotland is governed. We have faced this question before and there was then
			strong opposition to the devolution proposals of the seventies and with
			good reason. They were incoherent and inherently unstable: a reluctant
			damage control operation with no constitutional backbone. We have a
			choice now between trying to treat Scotland as an exceptional case, a
			sort of autonomous region with special privileges which the Welsh and
			the Northern Irish will then demand as well; or using Scotland as a
			model for a general decentralisation of government across the United
			Kingdom, by which we create not only an elected Scottish assembly to
			control the responsibilities of the Scottish office, but similar assemblies for Wales, Northern Ireland and the regions of England. This
			would relieve Whitehall and Westminster of much domestic business
			and provide a tier of government to discharge responsibilities for
			transport, planning and the environment and economic development
			more effectively than either central or local government, as our
			European partners have found. The German Lander are of course the
			standing example, but France, Italy and Spain are rapidly developing
			their regional institutions. A project of this scale needs to have formal
			constitutional expression, for the same reasons as local government.
			The balancing act between central, regional and local government
			INTRODUCTION 23
			requires each to have a firm base for negotiation and arrangements for
			revenue sharing and will of course require an independent arbitrator in
			the form of a constitutional court.
			We have followed this approach and have tried to develop a workable
			system. But we are bound to admit there are formidable practical and
			political objections to what we have proposed. We should therefore
			explain why we think the attempt is worth making.
			The United Kingdom is awkward. It is not a nation state, but a state
			which embraces four identifiable ‘national’ units. One of these,
			England, dominates the union by reason of its size and population (4/
			5ths of the whole). One of the smaller nations, Wales, has been
			administered for four hundred years or so as part of England. Another,
			Scotland, has enjoyed a large and increasing degree of administrative
			devolution and retains independent national institutions. The fourth,
			Northern Ireland, until recently enjoyed a large degree of political
			devolution, which has been withdrawn because its continued presence
			within the United Kingdom is disputed. These differences of size, of
			institutional development and of political climate make it difficult to
			imagine a coherent constitutional settlement. Many may feel that if it
			works don’t fix it. Northern Ireland plainly doesn’t work but is small
			and remote enough to be treated as a special case.
			Scotland is another matter. Though dissent is expressed within
			constitutional bounds, Scotland presents an acute case of the general
			problem that large parts of the United Kingdom are ruled by a
			government for which most of the electors did not vote. The governing
			party in the United Kingdom holds only 10 out of 72 Scottish
			parliamentary seats and has recently had no more than 20 per cent
			support in opinion polls. The Government’s policies are deeply resented and there has been a strong revival of the demands for political
			devolution which failed to be carried in the 1970s, and substantial
			support in by-elections and in the opinion polls for the Scottish
			National Party whose policy is independence. The movement for
			devolution now commands support from a wider and more influential
			body of people, including the Scottish TUC, the majority of Scottish
			local authorities and the Churches as well as the Labour and Liberal
			Democratic parties. The Scottish Convention, in which these bodies
			have been represented, has been engaged in developing its own views
			on the future of Scottish political institutions, rather than waiting for
			some dispensation from London. As a result the Convention’s de­
			24 INTRODUCTION
			mands go well beyond the 1978 Scotland Bill. The argument now
			concerns not simply what powers to devolve but how to entrench them.
			The Scottish Labour Party, the largest party in Scotland, is also the
			major force in the Convention and is committed to devolution. The UK
			Labour Party has accepted this commitment as the price of the Union;
			without its Scottish members it has no prospect of commanding a
			majority in Parliament. Neither the Convention nor the Scottish
			Labour Party (nor the UK Labour Party) has confronted the critical
			constitutional question: how is Scotland’s continued representation at
			Westminster to be justified - the “West Lothian question”. It is not
			constitutionally coherent nor will it be politically acceptable to other
			UK parties for Scotland’s seventy MPs to vote at Westminster on
			matters for which they have no responsibility.
			One possible answer would be to reduce Scottish representation at
			Westminster in the way that was done for Northern Ireland before
			direct rule. This does not answer the constitutional question and would
			probably not work politically because of the greater number of Scottish
			MPs who would still be involved. The anomaly would be too large.
			Nor could it be overcome by the suggestion in the Liberal Democratic
			Constitution that Scottish members (or others) should not vote when
			matters devolved to Scotland but not to other parts of the UK were
			under discussion in Parliament. The withdrawal of significant numbers of MPs for particular business could change the party balance in
			Parliament in such as way as to make it impossible for the government
			to carry its business.
			There would be political advantages in an old style Northern Ireland
			solution, whatever the constitutional problems. The question is whether
			such a settlement would have much chance of stability. Once there is
			an elected assembly to speak on Scotland’s behalf, the terms of the
			union will be a matter of continuous reinterpretation and legitimate
			dispute.
			These constitutional dilemmas are most acute for the Labour party. It
			is already committed to a Scottish Assembly, without changing the
			basis of the present bargain, and that commitment has been given
			detailed expression. Donald Dewar’s 1987 Scotland Bill and subsequent drafts produced for the Scottish Convention, which take the
			constitutional argument further, have been based on careful thought
			and much hard work. The latest versions set out what is a quasi federal
			INTRODUCTION 25
			relationship between Scotland and the United Kingdom, including the
			fundamental notion that any statute establishing an Assembly should
			have a special status as a constitutional statute: that is, a statute which
			would require special Parliamentary procedures to amend. Some
			Scottish constitutional lawyers have long argued that this is in fact the
			status of the Act of Union. No alteration in its terms should therefore
			be made by ordinary statute. If it is to be replaced, then it should be by
			an equally binding settlement, in which the conventions of the English
			Constitution do not prevail.
			Labour also has plans for assemblies for Wales and Northern Ireland
			and for some form of elected bodies for the English regions. These
			have not been worked through in the kind of detail of the Scottish
			proposals, but one may presume that the plans for Wales and Northern
			Ireland would be close to those for Scotland, allowing for major
			differences in administrative and political circumstances.
			The proposals for the English regions bear a strong resemblance to
			those of the Minority Report of the Royal Commission on the Constitution, which advocated the creation of elected regional authorities to
			take over the regional responsibilities of central government. To those
			would be added a few strategic functions of local government, following the abolition of the County Councils and the introduction of a new
			system of multi-purpose authorities based on the present district
			authorities and Metropolitan Boroughs. There are two sources of
			political pressure for this programme: one based on a concern for
			regional economic development and the need to have more active and
			responsive authorities at a regional level to coordinate local, national
			and European economic initiatives. The second reflects concern in the
			conurbations, and especially London, about the absence of any strategic authority to deal with land use planning, transport, and other
			functions which cannot be effectively handled either by boroughs
			individually or through informal cooperation. The position in London
			is particularly serious, given political divisions among the boroughs
			and the powers of unsympathetic and uncoordinated central government departments over the city as a whole. A recent report to the
			London Regional Labour Party began to put together the case for a
			strategic metropolitan authority with many of the functions that
			regional authorities across the country might have. Other people,
			including some in the private sector, have been thinking on similar
			lines.
			26 INTRODUCTION
			Is there a case for a grand design? It should be said at once that there
			are powerful arguments against doing anything more than is strictly
			and politically necessary. These apply with particular force to the
			proposals for England. Critics point to what they regard as the ‘ignis
			fatuus’ of reorganisation: the notion that you can resolve or even
			address problems by institutional change. Local government is still
			reeling from the changes enforced on it over the last ten years. The last
			thing it needs is another upheaval. What is needed is a period of calm,
			of consolidation, a restoration of partnership between central and local
			government, based on agreed policies and adequate funding. It can be
			argued that there is nothing which a regional tier of government could
			do, which could not equally well be done by such cooperation. Sort
			out local government taxation, and concentrate on those areas of
			policy, like education and housing, which require urgent attention. If
			you must make a bargain with the Scots, so be it. Otherwise constitutional
			change is a diversion, consuming time and political energy much better
			spent on the real business of government.
			An alternative view is that, if the first step has to be taken, others will
			follow: and you might as well have a clear idea of where you are going
			and why. The constitutional changes proposed for Scotland are radical
			and in principle incompatible with current constitutional conventions.
			If they are enacted, with or without adjustments to the Union bargain,
			they will prove unstable and unacceptable either to Scotland or to the
			rest of the United Kingdom, particularly England.
			There is a general case for the decentralisation of government, quite
			apart from the need to give greater expression to national identity.
			Scotland, Wales and Northern Ireland, despite its troubles, are better
			served by their departments than is England by Whitehall. Ministers
			and Civil Servants are closer to their constituencies, more familiar with
			and to the people with whom they have to deal in local government, in
			the health service, in education and in the public and private sectors of
			industry. There is a better chance of coordination within the departments themselves, even if it is not always achieved. It is easier to
			launch initiatives, to experiment, to reconcile interests, to persuade, to
			reach agreement. Even opponents are better understood. At the same
			time it is a commonplace that Ministers in Whitehall are overwhelmed
			with detail, submerged by a flood of minor decisions, while Parliament
			struggles in vain to digest the mass of legislation driven through it.
			We hear much less these days about overloaded government: but it is
			not clear that the new mood of confident assertiveness has actually
			INTRODUCTION 27
			produced a better performance. A general decentralization on the
			Scottish model would relieve central government of much domestic
			responsibility, particularly for the delivery of services, and allow it to
			concentrate on major economic policy, taxation, social security, trade,
			foreign policy, defence and all these matters as they relate to the
			European Community. Government and Parliament would have a
			much better chance of becoming effectively involved in the development of the Community, if they could let go of some of their domestic
			preoccupations. They could tackle the fear of imposed uniformity from
			above if they were less intent on imposing uniformity below.
			The details of the scheme we have proposed are set out in the text of
			the Constitution and discussed at length in the commentary. Apart from
			the obvious neglect of the special problems of Northern Ireland and the
			much less serious but equally intractable problem of the identity of the
			English regions, there are two features of the scheme which are likely
			to be controversial. The first is the way in which legislative power has
			been distributed between Parliament and the Assemblies. This is an
			attempt to put into effect the principle of subsidiarity: the Assemblies
			have rights to legislate on a broad range of domestic issues, but
			Parliament has concurrent powers to legislate where Assembly legislation would be inadequate or have external effects. Parliament in
			terms of the Constitution has exclusive legislative powers, but these in
			turn will effectively be shared with the European Community on the
			same basis. There are bound to be conflicts at both levels which if they
			cannot be resolved politically will have to be dealt with in the courts.
			The Assemblies will at least be able to fight their comer, as indeed the
			UK Government will need to do against the continual and unnecessary
			encroachment of detailed regulation from above.
			The second controversial proposal is that for revenue sharing as a
			source of finance for the Assemblies. This is an attempt to find a
			constitutional device to overcome the conundrum of regional and local
			government: how to find a tax base which provides a substantial
			proportion of local revenue and at the same time provides for the
			equalisation of resources between richer and poorer areas. Tax raising
			powers are commonly held to be essential to any genuine political
			independence, but if regional and local governments are left to their
			own resources there will be great inequalities in standards of public
			services between different areas. If on the other hand central government provides a substantial proportion of local resources in the form
			of equalisation grants, it will inevitably become involved in prescrib­
			28 INTRODUCTION
			ing the ways in which ‘its money’ is spent, and local autonomy or self
			government will be undermined. This has proved the case even where
			redistribution has been carried through by elaborate formulae based on
			measurements of need. These do not remove the occasions for political
			judgement or the temptations to political manipulation. The suggestion here is to assign major tax revenues to the regions as of right with
			an entrenched formula for redistribution, while keeping the administration and control of the tax itself with central government.
			The experience of most countries has been that the buoyant sources of
			revenue (income taxes, excises, corporation taxes) have been appropriated by central government. The assignation of indirect taxes to
			regional or local government (sales tax, excise, VAT) runs into difficulties with ‘common market’ constraints both within the UK and the
			European Community. In the longer term there are pressures to
			harmonise such taxes across the EC. This leaves income and property
			taxes as the most appropriate taxes for local and regional government.
			There are, of course, serious problems in entrenching a financial
			formula in the Constitution and the political difficulties may outweigh
			the advantages. But some such solution is necessary if we are to reverse
			the current trend, where the government’s new proposals for local
			taxation will provide less than 20 per cent of local authority revenue.
			Parliament, patronage and the Public Service
			The other main innovations in the Constitution require justification but
			less explanation. The approval of Parliament for important actions of
			the Executive, such as declarations of war, and treaties, now taken
			under the prerogative powers, gives formal recognition to the underlying political reality and may at the same time render the Executive
			more immediately accountable. Changes in the methods of appointment will reduce the government’s powers of patronage and help to
			ensure some consistency of standards and integrity in the burgeoning
			world of appointed office holders. This may in any event be decreased
			by putting many services under the control of the Assemblies. The new
			constitutional bodies, such as the Public Services Commission and the
			Election Commission, are also intended to insulate important features
			of the Constitution from direct political interference, at all levels in the
			system.
			They are in a sense the guarantors of fairness of the system. The
			significant changes to Parliament itself are limited but important. The
			INTRODUCTION 29
			election of the Prime Minister again recognises the essential source of
			legitimacy, and may also avoid real difficulty and embarrassment for
			the Head of State. The House of Lords is a useful anachronism which
			does much good work but lacks the essential ingredient to act as an
			effective check on the Commons and the watchdog of the Constitution.
			In our proposals for elections, we have provided a different system for
			the new Second Chamber which would put more emphasis on the
			character of the individual candidate than on party. For the Commons
			we have adopted the system which seems closest to the present one,
			while providing a greater degree of proportionality in representation.
			We do not believe that the present system, which denies adequate
			representation to parties with substantial but geographically scattered
			support, is acceptable. And we think the adequate representation of
			minorities may be especially important in the elections to the Assemblies and local government. There is much more that could be said on
			all these issues and some of it is said in the commentary on specific
			provisions of the Constitution.
			We have taken the opportunity, where possible, to include provisions
			intended to strengthen equal opportunities. In the Bill of Rights, for
			instance, the equality Article taken from the International Covenant on
			Civil and Political Rights has been extended to cover discrimination on
			grounds of age, homosexuality or disability (Article 19). Three bodies
			responsible for making appointments, the Judicial Services Commission, Public Services Commission and the authorities responsible for
			police appointments are charged with a duty to ensure that adequate
			numbers of candidates of both sexes and from diverse racial, religious
			and social backgrounds are considered for appointment (Articles 104,
			115 and 125). In relation to the appointment of the Judiciary, the
			provision for part-time Judges to be appointed in the Superior courts
			will enable more women to take up such appointments; while Parliament itself should be made more accessible by the requirement that the
			hours and sittings of both Houses must “have regard to the needs of all
			persons who are eligible to be members” (Article 63). Were a list
			system to be used for the appointment of Additional Members to the
			Commons, a further opportunity would arise for strengthening the
			representation of women and minority groups, although we are also
			aware of the disadvantages of using such a system.
			The Constitution strengthens the hand of Parliament vis á vis the
			Executive but also that of the citizen vis á vis the State. Throughout
			there are provisions which would enhance our control over our own
			30 INTRODUCTION
			lives and give us the means to call to account those whose decisions
			affect our interests: access to official information and control over the
			use to which personal information is put (Articles 28 and 29); an
			electoral system in which each individual’s vote is reflected in the
			outcome (Chapter 8); a Bill of Rights and Human Rights Commission
			to assist individuals whose rights are infringed (Chapter 2); a duty on
			public authorities to give reasons for decisions and a right to complain
			to the Commission for Public Administration of any failure of administration or unfair administration by public authorities (Articles 118 and
			119), are but some examples.
			A written Constitution should come into force by special means, such
			as a constitutional convention followed by a referendum, rather than
			by Act of Parliament. This is a first attempt at the main text of a
			Constitution: we have not embarked on the necessary but secondary
			apparatus of interpretation, transition and adoption. This is not because
			we regard them as straightforward, rather the reverse. They present
			knotty problems, constitutional, political and technical. They are
			however consequential problems that follow on agreement as to
			whether we want a written constitutional at all.
			1
			THE CONSTITUTION OF THE UNITED KINGDOM
			TABLE OF ARTICLES
			Preamble
			CHAPTER 1
			THE CONSTITUTION
			1. Constitution as foundation of power in United Kingdom
			CHAPTER 2
			RIGHTS AND FREEDOMS
			Part 1: Fundamental Rights and Freedoms
			Division 1: The Bill o f Rights
			2. Right to life
			3. Freedom from torture
			4. Freedom from slavery and forced labour
			5. Right to liberty and security
			6. Right to fair and public hearing
			7. Retrospective offences prohibited
			8. Respect for private and family life
			9. Freedom of thought
			10. Right to education
			11. Freedom of expression
			12. Freedom of assembly and association
			13. Rights in respect of marriage
			14. Right to enjoyment of possessions
			15. Right to participate in public life and service
			16. Freedom of movement
			17. Freedom from expulsion from United Kingdom
			18. Right of asylum
			19. Equality
			2 CONSTITUTION
			Division 2: Application and interpretation
			20. Application of Bill of Rights
			21. Scope of exceptions
			22. Interpretation
			23. Rights under other agreements
			24. Abuse of freedoms
			Division 3: Remedies
			25. Remedies
			26. Human Rights Commission
			Part 2: Social and Economic Rights
			27. Social and economic rights
			Part 3: Freedom of Information
			28. Access to official information
			29. Use of information by public authorities
			CHAPTER 3
			NATIONALITY
			30. British nationality
			31. Acquisition and loss of British nationality
			32. Allegiance and dual nationality
			33. Civic rights of non-nationals
			CHAPTER 4
			THE HEAD OF STATE
			34. The Head of State
			35. Functions of the Head of State
			36. Duties of the Head of State
			37. Personal powers of the Head of State
			38. The power of mercy
			39. The Privy Council
			CONSTITUTION 3
			CHAPTER 5
			THE EXECUTIVE
			Division 1: The Government o f the United Kingdom
			40. The executive power for the United Kingdom
			41. The Prime Minister
			42. Deputy Prime Minister
			43. Ministers
			44. The Cabinet
			45. Ministerial responsibility
			46. Code of Ministerial Conduct
			Division 2: Legal matters
			47. Attorney General
			48. Director of Public Prosecutions
			49. Director of Civil Proceedings
			Division 3: International relations
			50. European Community law
			51. International relations
			CHAPTER 6
			THE LEGISLATURES
			Part 1: The Legislative Power
			52. The legislative power
			53. Exclusive legislative powers of Parliament
			54. Legislative powers of Assemblies
			55. Concurrent legislative powers
			56. Conflicts of legislation
			Part 2 : Parliament
			Division I : Composition o f Parliament
			57. Parliament
			58. Membership
			4 CONSTITUTION
			59. Qualifications and disqualifications for membership
			60. Expiry and dissolution of Houses of Parliament
			Division 2: Powers and procedure
			61. Powers and privileges of Parliament
			62. The Speakers
			63. Salaries and facilities
			64. Declarations of interest
			Division 3: Legislative powers
			65. Introduction of Bills
			66. Subordinate legislation
			67. Restriction on powers of Second Chamber as to Money Bills
			68. Restriction on powers of Second Chamber as to certain Bills
			Division 4: Constitutional amendments and legislation
			69. Amendment to the Constitution
			70. Constitutional Bills
			Division 5: Public Finance
			71. Public Funds
			72. Contingencies Fund
			73. Appropriation
			74. Budget
			75. Comptroller and Auditor General
			Division 6: Constitutional Commission
			76. Constitutional Commission
			77. Integrity Committee
			CHAPTER 7
			NATIONAL AND REGIONAL GOVERNMENT
			78. Assemblies
			79. Executives
			80. Finance and revenue sharing
			81. Borrowing
			82. Local government
			CONSTITUTION 5
			CHAPTER 8
			ELECTIONS
			83. Electoral law and qualifications
			84. Elections to House of Commons
			85. Elections to Second Chamber
			86. By-elections
			87. Elections to European Parliament, Assemblies and local
			authorities
			88. Electoral Commission
			89. Functions of Electoral Commission
			90. Functions as to political parties
			91. Registration of political parties
			CHAPTER 9
			THE JUDICIARY
			Part 1: The Judicial Power
			92. The judicial power
			93. Establishment of courts
			94. Limitations on invalidating of legislation
			95. Full faith and credit
			Part 2: The Supreme Court and Other United Kingdom Courts
			96. The Supreme Court
			97. Composition
			98. Jurisdiction
			99. Additional jurisdiction
			100. Binding force of decisions
			101. Other United Kingdom courts
			102. United Kingdom Judicial Appointments Commission
			6 CONSTITUTION
			Part 3: Judicial Services Commissions and Judicial Councils
			103. Judicial Services Commissions and Judicial Councils
			104. Functions of Judicial Services Commissions
			105. Functions of Judicial Councils
			Part 4: Judicial Independence and Conduct
			106. Application of Part 4
			107. Protection of judicial salaries
			108. Tenure of judicial office
			109. Judicial Conduct Tribunals
			110. Complaints relating to Justices of Supreme Court
			111. Functions of Judicial Conduct Tribunals
			112. Procedure for removal of judges
			113. Judicial control of court business
			CHAPTER 10
			THE PUBLIC SERVICES
			114. The Public Services
			115. Public Services Commission
			116. Functions of Public Services Commission
			117. Public Services Complaints Commission
			CHAPTER 11
			ADMINISTRATIVE JUSTICE
			118. Judicial review
			119. Commission for Public Administration
			120. Complaints procedures
			CONSTITUTION 7
			CHAPTER 12
			PROTECTION OF THE UNITED KINGDOM
			121. The Armed Forces
			122. Declaration of war
			123. Deployment of Armed Forces
			124. Visiting forces
			125. Police
			126. National security
			127. Inspector-General of Security Services
			128. Suspension of the Constitution
			129. Detention in emergencies
			SCHEDULES
			Schedule 1: The areas of the Assemblies
			Schedule 2: Calculation of revenue sharing
			Schedule 3: Elections
			P arti: Parliamentary constituencies
			Part 2: Election of members of Parliament
			Part 3: The electoral cycle
			Schedule 4: National courts
			Part 1: Courts in England and Wales
			Part 2: Courts in Scotland
			Part 3: Courts in Northern Ireland
			Schedule 5: Judicial Services Commission and Judicial Council
			for England and Wales
			Schedule 6: Words of enactment
			'
			CONSTITUTION 9
			PREAMBLE
			We the People of the United Kingdom
			affirm that the United Kingdom shall be founded upon principles which acknowledge human rights and fundamental freedoms, the dignity of the human person and the
			equal and inalienable rights with which all human
			beings are endowed;
			respect the principles of social justice; and
			therefore that the material resources of the community must be so
			believe managed that there shall be adequate means of livelihood for all; that no one shall be exploited or forced by
			economic necessity to work in inhumane or degrading
			conditions; that there shall be opportunity for advancement on the basis of merit, ability and integrity; that
			equal protection shall be given to all children regardless
			of their family circumstances; and that provision for
			education and for health shall be made for all on a basis
			of equality;
			further that the informed consent and active participation of the
			believe people are fundamental to a democratic system of government, which must be based on free elections by
			universal adult suffrage and whose institutions must
			provide for the expression of national, regional and
			local loyalties and enhance the opportunities for selfgovernment in all institutions, public and private;
			recognise that freedom can only flourish when founded upon a
			respect for the rule of law both by individuals and by
			government;
			require government policies, consonant with membership of
			the European Community and the furtherance of the objectives of the Community, which protect and safeguard
			the freedom and territorial integrity of the United Kingdom; which eliminate economic and social discrimination among the citizens of the United Kingdom whether
			based on race, colour, creed or gender; which protect the
			rights of the individual to life, liberty and the pursuit of
			happiness; which prohibit the exploitation of one person by another or by the state; which ensure a just
			10 CONSTITUTION
			desire
			NOW
			system of social security and welfare; which protect the
			environment; which promote peace, security and cooperation among the nations, based upon an equitable
			international economic order and a respect for international law and treaty obligations in dealings among
			nations;
			that our society shall reflect and promote the above principles, beliefs and needs and that our Constitution
			should therefore make provision for the achievement of
			the same in the United Kingdom; and
			therefore the following provisions shall have effect as
			the Constitution of the United Kingdom —
			CONSTITUTION 11
			CHAPTER 1
			THE CONSTITUTION
			1. Constitution as foundation of power in United Kingdom
			1.1 This Constitution is the sole foundation for the exercise of
			executive, legislative and judicial power in the United
			Kingdom.
			1.2 This Constitution recognises and gives effect to the obligations assumed by the United Kingdom as a member of the
			Community of Nations and of the European Community.
			1.3 All Acts of Parliament, and all other laws, shall be interpreted and applied subject to this Constitution, and, so far
			as is practicable, in such a way as to conform to it.
			1.4 Any law (including a rule of the common law), and any
			convention or other constitutional practice or usage in force
			immediately before the coming into force of this Constitution, that is inconsistent with this Constitution ceases to
			have effect to the extent of the inconsistency.

			CONSTITUTION 13
			CHAPTER 2
			RIGHTS AND FREEDOMS
			Part 1: Fundamental Rights and Freedoms
			Division 1: The Bill o f Rights
			2. Right to life
			2.1 Everyone’s right to life shall be protected by law.
			2.2 No one shall be deprived of life intentionally.
			2.3 Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of
			force which is no more than absolutely necessary —
			.1 in defence of any person from unlawful violence; or
			.2 in action lawfully taken for the purpose of quelling a riot
			or insurrection.
			2.4 No one shall be condemned to death or executed.
			3. Freedom from torture
			3. No one shall be subjected to torture or to cruel, inhuman or
			degrading treatment or punishment.
			4. Freedom from slavery and forced labour
			4.1 No one shall be held in slavery or servitude.
			4.2 No one shall be required to perform forced or compulsory
			labour.
			4.3 For the purpose of this Article, the expression “forced or
			compulsory labour” does not include —
			. 1 any work required to be done in the ordinary course of
			detention according to Article 5 or during conditional
			release from such detention;
			.2 any service of a military character or, in case of conscientious objectors, service exacted instead of compulsory military service;
			.3 any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
			.4 any work or service which forms part of normal civic
			obligations.
			14 CONSTITUTION
			5. Right to liberty and security
			5.1 .1 Everyone has the right to liberty and security of person.
			.2 No one shall be deprived of their liberty except, on reasonable grounds and in accordance with fair procedures
			established by law, in the following cases —
			. 1 the lawful detention of a person after conviction by a
			competent court;
			.2 the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in
			order to secure the fulfilment of any obligation prescribed by law;
			.3 the lawful arrest or detention of a person effected for
			the purpose of bringing them before the competent
			legal authority on reasonable suspicion of having
			committed an offence or when it is reasonably considered necessary to prevent their committing an
			offence or fleeing after having done so;
			.4 the lawful detention of persons for the prevention of
			the spreading of infectious diseases constituting a
			serious threat to public health, or of persons suffering
			from mental disorder where necessary for the prevention of harm to themselves or others;
			.5 the lawful arrest or detention of a person to prevent
			their effecting an unauthorised entry into the United
			Kingdom or of a person against whom action is being
			taken with a view to deportation or extradition.
			5.2 Anyone who is arrested shall, at the time of arrest, be
			informed in a language which they understand of the
			reasons for their arrest and shall be promptly informed of
			any charges against them.
			5.3 .1 It shall not be the general rule that persons awaiting trial
			shall be detained in custody.
			.2 Anyone arrested or detained on a criminal charge shall
			be brought promptly before a judge or other officer authorised by law to exercise judicial power and is entitled
			to trial within a reasonable time or to release pending
			trial.
			CONSTITUTION 15
			.3 Release may be subject to guarantees to appear for trial
			or at any other stage of the judicial proceedings.
			5.4 Anyone who is deprived of liberty by arrest or detention is
			entitled to take proceedings before a court in order that the
			court may decide without delay on the lawfulness of the
			detention and may order their release if the detention is not
			lawful.
			5.5 Anyone who has been the victim of unlawful arrest or
			detention has an enforceable right to compensation.
			5.6 All persons deprived of their liberty shall be treated with
			humanity and with respect for the inherent dignity of the
			human person.
			5.7 Accused persons in detention shall, save in exceptional
			circumstances, be segregated from convicted persons and
			shall be subject to separate treatment appropriate to their
			status as people who have not been convicted.
			5.8 .1 Accused juvenile persons in detention shall be separated from adults and brought as speedily as possible for
			adjudication.
			.2 Juvenile convicted persons shall be separated from
			adults and accorded treatment appropriate to their age
			and legal status.
			5.9 No one shall be imprisoned merely on the ground of
			inability to fulfil a contractual obligation.
			6. Right to fair and public hearing
			6.1 .1 In the determination of their civil rights and obligations
			or of any criminal charges against them, everyone is entitled to a fair and public hearing within a reasonable
			time by an independent and impartial tribunal established by law.
			.2 Judgment shall be pronounced publicly but the press
			and public may be excluded from all or any part of the
			trial to the extent strictly necessary in the opinion of the
			court:
			. 1 in the interests of public order or national security in
			a democratic society;
			16 CONSTITUTION
			.2 where the interests of juveniles or the protection of
			the private life of the parties so require; or
			.3 where publicity would prejudice the interests of
			justice.
			6.2 Everyone charged with a criminal offence is presumed innocent until proved guilty according to law.
			6.3 Everyone charged with a criminal offence has the following
			minimum rights:
			.1 to be informed promptly in a language which they
			understand and in detail of the nature and cause of the
			accusation against them;
			.2 to have adequate time and facilities for the preparation
			of their defence;
			.3 to defend themselves in person or through legal assistance of their own choosing or, if they have not sufficient
			means to pay for legal assistance, to be given it free
			when the interests of justice so require;
			.4 to examine or have examined witnesses against them
			and to obtain the attendance and examination of witnesses on their behalf under the same conditions as
			witnesses against them;
			.5 to have the free assistance of an interpreter if they cannot
			understand or speak the language used in court;
			.6 not to be compelled to testify against themselves or to
			confess guilt.
			6.4 When a person has, by a final decision, been convicted of
			a criminal offence and has suffered punishment as a result
			of such conviction, and it is subsequently shown that there
			has been a miscarriage of justice, that person shall be compensated according to law.
			6.5 Everyone convicted of a crime has the right to have their
			conviction and sentence reviewed by a higher tribunal
			according to law.
			6.6 No one is liable to be tried or punished again for an offence
			for which they have already been finally convicted or
			acquitted in accordance with the law and penal procedure.
			CONSTITUTION 17
			7. Retrospective offences prohibited
			7 .1 . .1 No one shall be held guilty of any criminal offence on
			account of any act or omission which did not constitute
			a criminal offence under national or international law at
			the time when it was committed.
			.2 Nor shall a heavier penalty be imposed than the one that
			was applicable at the time the criminal offence was committed.
			7.2 This Article does not prejudice the trial and punishment of
			any person for any act which constitutes the crime of genocide or a crime against humanity.
			8. Respect for private and family life
			8.1 Everyone has the right to respect for their private and family
			life, their home and their correspondence.
			8.2 There shall be no interference with the exercise of this right
			except such as is in accordance with the law and is necessary in a democratic society —
			.1 in the interests of national security or public safety; or
			.2 for the prevention of disorder or crime; or
			.3 for the protection of health or morals; or
			.4 for the protection of the rights and freedoms of others.
			9. Freedom of thought
			9.1. .1 Everyone has the right to freedom of thought, conscience and religion.
			.2 This right includes freedom to change one’s religion or
			belief, and freedom, either alone or in community with
			others and in public or private, to manifest one’s religion
			or belief in worship, teaching, practice and observance.
			9.2 Freedom to manifest one’s religion or belief is subject only
			to such limitations as are prescribed by law and are necessary in a democratic society —
			.1 in the interests of public safety; or
			.2 for the preservation of public order; or
			.3 for the protection of health or morals, or
			.4 for the protection of the rights and freedoms of others.
			18 CONSTITUTION
			9.3 .1 No law shall be made establishing any religion or imposing any religious observance.
			.2 No religious test shall be required as a qualification for
			any office of public trust under any government in the
			United Kingdom.
			10. Right to education
			10.1 No person shall be denied the right to education.
			10.2 In the exercise of their functions in relation to education and
			teaching, public authorities shall respect the right of parents
			to ensure such education and teaching in conformity with
			their own religious and philosophical convictions, so far as
			is compatible with the provision of efficient instruction and
			training and the avoidance of unreasonable public expenditure.
			11. Freedom of expression
			11.1 Everyone has the right to hold opinions without interference.
			11.2 .1 Everyone has the right to freedom of expression.
			.2 This right includes freedom to seek, receive and impart
			information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in the form of
			art, or through any other media of their choice.
			11.3 The exercise of this right carries with it special duties and
			responsibilities. It may therefore be subject to certain restrictions, but only such as are provided by law and are
			necessary in a democratic society —
			. 1 for respect of the rights or reputations of others; or
			.2 for the protection of national security or of public order
			or of public health or morals.
			11.4 A requirement by law that radio or television broadcasting,
			or cinema enterprises, must be licensed is not inconsistent
			with this Article.
			CONSTITUTION 19
			12. Freedom of assembly and association
			12.1 Everyone has the right to freedom of peaceful assembly and
			to freedom of association with others, including the right to
			form and to join trade unions.
			12.2 No restriction shall be placed on the exercise of these rights
			other than such as are prescribed by law and are necessary
			in a democratic society —
			.1 in the interests of national security, public safety or the
			preservation of public order; or
			.2 for the protection of public health or morals; or
			.3 for the protection of the rights and freedoms of others.
			12.3 This Article does not prevent the imposition of restrictions
			prescribed by law and necessary in a democratic society on
			the exercise of this right by members of the Armed Forces
			or of the police or by persons charged with the administration of the state.
			13. Rights in respect of marriage
			13.1 Everyone of marriageable age has the right both to marry
			and to found a family.
			13.2 No marriage shall be entered into without the free and full
			consent of the intending spouses.
			13.3 .1 Spouses have equality of rights and responsibilities as to
			marriage, during marriage, and at its dissolution.
			.2 In the case of dissolution, provision shall be made for the
			necessary protection of any children.
			13.4 Every child has the right to such measures of protection as
			are required by their status as a minor, on the part of their
			family, society and public authorities.
			14. Right to enjoyment of possessions
			14.1 .1 Every natural or legal person is entitled to the peaceful
			enjoyment of their possessions.
			.2 No one shall be deprived of their possessions except in
			the public interest and subject to the conditions provided
			20 CONSTITUTION
			for by law and to prompt, adequate and effective compensation.
			14.2 This Article does not in any way impair the right to enforce
			such laws as may be necessary to control the use of property
			in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
			15. Right to participate in public life and service
			15. Every adult citizen has the right and the opportunity,
			without unreasonable restrictions —
			.1 to take part in the conduct of public affairs directly or
			through freely chosen representatives;
			.2 to vote and to stand for election at genuine periodic
			elections, which shall be by universal and equal suffrage
			and shall be held by secret ballot, guaranteeing the free
			expression of the will of the people;
			.3 to participate, on general terms of equality, in public
			service.
			16. Freedom of movement
			16.1 Everyone lawfully within the United Kingdom has the right
			of liberty of movement and freedom to choose their residence within the United Kingdom.
			16.2 Everyone is free to leave the United Kingdom, and everyone holding British nationality is entitled to a passport.
			16.3 No restrictions shall be placed on the exercise of the rights
			set out in this Article other than such as are in accordance
			with law and are necessary in a democratic society —
			.1 in the interests of national security, public safety or the
			preservation of public order; or
			.2 for the prevention of crime or under an order imposed by
			a court on conviction of crime; or
			.3 for the protection of health; or
			.4 for the protection of the rights and freedoms of others.
			CONSTITUTION 21
			16.4 The rights set out in paragraph .1 may also be subject, in
			particular areas, to restrictions imposed in accordance with
			law and justified by the public interest in a democratic
			society.
			17. Freedom from expulsion from United Kingdom
			17.1 No British National shall be expelled from the United Kingdom or deprived of the right to enter the United Kingdom.
			17.2 .1 Other persons may be expelled from the United Kingdom only in pursuance of a decision reached in accordance with law.
			.2 Any such persons who have been lawfully admitted to
			the United Kingdom shall be allowed, prior to expulsion,-
			. 1 to submit reasons against expulsion; and
			.2 to have their cases reviewed by, and be represented
			for the purpose before, the competent authority or a
			person or persons especially designated by the competent authority.
			17.3 This Article does not prevent the extradition of persons,
			through established legal procedures, for the purpose of
			standing trial for a criminal offence or serving a sentence
			lawfully imposed on them in another jurisdiction.
			18. Right of asylum
			18.1 Every person has the right to seek and be granted asylum in
			the United Kingdom in accordance with the law of the
			United Kingdom and international conventions, if they are
			being pursued for political offences.
			18.2 In no case may an alien be deported or returned to a country,
			regardless of whether or not it is their country of origin, if
			in that country their right to life or personal freedom is in
			danger of being violated because of their race, nationality,
			religion, social status, or political opinions.
			19. Equality
			19.1 Everyone has the right to recognition as a person before the
			law.
			22 CONSTITUTION
			19.2 All persons are entitled without any discrimination to the
			equal protection of the law.
			19.3 The equal protection of the law and the enjoyment of the
			rights and freedoms set out in this Bill of Rights shall be
			secured without discrimination on any ground such as sex,
			race, colour, language, religion, political or other opinion,
			national or social origin, association with a national minority, property, birth, homosexuality, disability, age, or other
			status.
			Division 2: Application and interpretation
			20. Application of Bill of Rights
			20. The Bill of Rights applies to any act or omission by or on
			behalf of any person or body in the performance of any
			public function, including an omission by Government to
			take appropriate steps to secure compliance with any provision of the Bill of Rights.
			21. Scope of exceptions
			21. Where the protection of any right or freedom by the Bill of
			Rights is subject to any restriction or qualification, that restriction or qualification —
			.1 has no wider effect than is strictly necessary in the
			circumstances; and
			.2 shall not be applied for any purpose other than that fir
			which it has been prescribed.
			22. Interpretation
			22.1 The Bill of Rights —
			. 1 is intended to give effect in the United Kingdom to the
			International Covenant on Civil and Political Rights and
			the European Convention for the Protection of Human
			Rights and Fundamental Freedoms; and
			.2 shall be interpreted and applied accordingly, but without
			prejudice to any rights and freedoms protected by the
			Bill of Rights which are more extensive than those
			CONSTITUTION 23
			protected by the International Covenant or the European
			Convention.
			22.2 Judicial notice shall be taken of-
			. 1 the International Covenant on Civil and Political Rights
			and the European Convention on Human Rights;
			.2 reports and expressions of views by the United Nations
			Human Rights Committee;
			.3 reports of the European Commission of Human Rights;
			and
			.4 judgments and advisory opinions of the European Court
			of Human Rights.
			22.3 Any question as to the meaning or effect of the International
			Covenant or the European Convention shall be treated as a
			question of law and, in the case of the European Convention, shall be for determination as such in accordance with
			the principles laid down by, and any relevant decision of,
			the European Court of Human Rights.
			23. Rights under other agreements
			23. Nothing in this Chapter shall be interpreted as limiting or
			derogating from any of the human rights or fundamental
			freedoms which may be enjoyed under any other agreement
			to which the United Kingdom is a party.
			24. Abuse of freedoms
			24. Nothing in the Bill of Rights shall be interpreted as implying for any group or person a right to engage in any activity
			or perform any act aimed at the destruction of any of the
			rights and freedoms set out therein.
			Division 3: Remedies
			25. Remedies
			25. Without prejudice to any right to apply for judicial review,
			any person whose rights or freedoms protected by the Bill
			of Rights have been infringed or are threatened with infringement may bring civil proceedings for damages, an
			2A CONSTITUTION
			injunction or any other relief authorised by Rules of Court.
			26. Human Rights Commission
			26.1 There is established by this Constitution a Human Rights
			Commission —
			. 1 the composition of which shall be determined by Act of
			Parliament; and
			.2 the members of which shall be appointed by the Minister of Justice on the recommendation of the Public
			Services Commission.
			26.2 The Commission has the duty to encourage an understanding and acceptance of, and compliance with, the fundamental rights and freedoms guaranteed by the Bill of Rights.
			26.3 The Commission —
			. 1 may investigate any act or practice which may be inconsistent with the Bill of Rights, whether on its own
			initiative or following a complaint; and
			.2 has the appropriate powers to secure the attendance of
			witnesses and the production of documents.
			26.4 The Commission has the power —
			. 1 to assist individual complainants in legal proceedings in
			relation to the Bill of Rights;
			.2 to institute such legal proceedings, whether or not it has
			received a complaint.
			26.5 The Commission may challenge the validity of any provision of an Act of Parliament or of an Assembly that, in its
			view, is inconsistent with or in contravention of the Bill of
			Rights, by initiating legal proceedings in the High Court,
			the Court of Session or the High Court for Northern Ireland,
			as the case requires.
			26.6 The Commission may intervene in any proceedings that involve human rights issues, where it considers it appropriate, and with the leave of the court hearing the proceedings.
			26.7 The Commission may examine legislation and proposed
			legislation for the purpose of ascertaining whether it is in­
			CONSTITUTION 25
			consistent with any of the provisions of the Bill of Rights
			and shall report any such inconsistency to Parliament.
			26.8 The Commission shall report to Parliament on the action
			which, in its opinion, needs to be taken in order that there
			is compliance with the Bill of Rights or any relevant international instrument.
			26.9 The Commission may prepare and publicise guidelines for
			the avoidance of acts or practices inconsistent within the
			Bill of Rights.
			26.10 The Commission shall submit an annual report to Parliament.
			Part 2: Social and Economic Rights
			27. Social and economic rights
			27.1 In making provision for the social and economic welfare of
			the people of the United Kingdom, Parliament and the Assemblies shall be guided by the principles contained in the
			International Covenants and Charters to which the United
			Kingdom is signatory, and in particular by—
			. 1 the right of workers to earn their living in an occupation
			freely entered upon;
			.2 the right of everyone to an adequate standard of living,
			including adequate food, clothing and housing;
			.3 the right of everyone to social security;
			.4 the right of everyone to the enjoyment of the highest
			attainable standard of physical and mental health;
			.5 the right of everyone to education;
			.6 the right of workers to resort to collective action in the
			event of a conflict of interests, including the right to
			strike;
			.7 the right of every worker to enjoy satisfactory health and
			safety conditions in their working environment.
			27.2 Parliament and the Assemblies of Scotland and Northern
			Ireland shall —
			26 CONSTITUTION
			. 1 secure that the working of the legal system promotes
			justice on the basis of equality of access; and
			.2 in particular, provide by law for legal aid and services to
			ensure that no one is prevented from securing justice by
			reason of economic or other disabilities.
			27.3 The provisions of this Article are not enforceable in any
			court.
			Part 3: Freedom of Information
			28. Access to official information
			28.1 There is a right of access by the public to the information
			held by any public authority performing functions with
			respect to the government of the United Kingdom, a nation
			or a region, or to local government.
			28.2 This right is subject only to such limitations as are prescribed by law and are necessary in a democratic society —
			. 1 for the protection of national security;
			.2 in the interests of law enforcement or the prevention and
			detection of crime;
			.3 for the protection of personal privacy, legal privilege or
			commercial processes or transactions;
			.4 to enable a public service to perform its constitutional
			functions or a public authority, when acting in the
			capacity of regulator, contractor or employer, to perform its functions.
			28.3 Act of Parliament shall —
			. 1 prescribe the procedures to enable the right of access to
			official information to be readily exercised and enforced; and
			.2 make provision for the appointment, powers and procedures of a Parliamentary Commissioner for Information.
			28.4 The Commissioner —
			.1 shall investigate refusals of access to official informa-
			CONSTITUTION 27
			tion and complaints of delay or obstruction in the
			granting of such access; and
			.2 may require public authorities to give access to official
			information or to compensate for unwarranted delays in
			giving such access.
			29. Use of information by public authorities
			29.1 Any person required by law to provide information to a
			public authority shall be informed of the purposes for which
			that information is required.
			29.2 Any information so provided shall be used for those purposes only.
			29.3 No such information shall be communicated to any other
			public authority unless —
			.1 that communication is authorised by law; and
			.2 at the time the information was required, the person
			from whom it was required was informed that it might
			be communicated to the other public authority and of the
			puiposes for which it might be used by that other public
			authority.
			29.4 Paragraph .3.2 does not apply where the communication of
			the information is sought for the purposes of investigating
			fraud or crime.

			CONSTITUTION 29
			CHAPTER 3
			NATIONALITY
			30. British nationality
			30.1 There is established by this Constitution a new British nationality, the holders of which are known as British nationals.
			30.2 Every person is a British national who, immediately before
			the coming into force of this Constitution, held the status of
			any of the following —
			.1 British citizen;
			.2 British Dependent Territories citizen;
			.3 British Overseas citizen;
			.4 British subject;
			.5 British National (Overseas);
			.6 British Protected Person.
			30.3 Every person who is a British national by reason of paragraph .2 shall be treated as holding that nationality by
			descent, unless, immediately before the coming into force
			of this Constitution, the person held a status of —
			.1 a British citizen otherwise than by descent; or
			.2 a British Dependent Territories citizen otherwise than
			by descent.
			31. Acquisition and loss of British nationality
			31.1 .1 A person who is bom in the United Kingdom, one of the
			other British Islands or a dependent territory after the
			coming into force of this Constitution acquires British
			nationality by birth.
			.2 Such a person does not acquire British nationality if, at
			the time of the birth, —
			.1 the mother or father possesses the immunity from
			suit and process accorded to an envoy of a foreign
			sovereign, and neither is a British national; or
			.2 the mother or father is a national of a country at war
			with the United Kingdom and the birth occurs in a
			30 CONSTITUTION
			place occupied by that country.
			31.2 A person who is bom in any other place after the coming
			into force of this Constitution acquires British nationality
			by descent if, at the time of the birth, the mother or father
			is a British national otherwise than by descent
			31.3 Act of Parliament shall provide for, and regulate, acquisition (in particular, acquisition by adoption, descent, registration and naturalisation), loss and withdrawal of British
			nationality.
			31.4 .1 British nationality shall not be withdrawn arbitrarily or
			so as to render the holder stateless, and shall be lost only
			in the circumstances prescribed by Act of Parliament.
			.2 Act of Parliament shall provide for the right of any
			person from whom British nationality is withdrawn to
			apply for judicial review.
			32. Allegiance and dual nationality
			32.1 Every person holding British nationality owes a duty of allegiance to this Constitution.
			32.2 Nothing in this Chapter prevents a person who holds British
			nationality from holding the nationality or citizenship of
			another country.
			32.3 Every person holding British nationality has the right of
			abode in any part of the United Kingdom.
			33. Civic rights of non-nationals
			33. Act of Parliament —
			. 1 shall determine the extent to which persons under the jurisdiction of the United Kingdom who do not hold
			British nationality are entitled to the civic rights, and are
			subject to the civic duties, attached to British nationality; and
			.2 may provide for the continued entitlement of citizens of
			the Republic of Ireland and of Commonwealth countries to rights to which they were entitled immediately
			before the coming into force of this Constitution.
			CONSTITUTION 31
			CHAPTER 4
			THE HEAD OF STATE
			34. The Head of State
			34.1 .1 There is established by this Constitution the office of
			Head of State of the United Kingdom, which is held by
			Her Majesty Queen Elizabeth II and Her Heirs and Successors.
			.2 The Heirs and Successors are as determined by the Act
			of Settlement 1700, except that, in relation to persons
			bom after the coming into force of this Constitution, the
			succession shall be in order of primogeniture without
			regard to gender or religion.
			.3 Nothing in this Constitution prevents Her Majesty or
			any Heir or Successor from abdicating the office of
			Head of State in favour of the Heir to the Throne.
			34.2 .1 If —
			. 1 on Accession, the Head of State is under the age of
			18 years; or
			.2 at any time the Head of State is incapable of performing the functions of the Head of State,
			those functions shall be performed in the name of and on
			behalf of the Head of State by a Regent, who shall be
			appointed as Act of Parliament shall prescribe, until the
			Head of State attains that age or ceases to be incapacitated.
			.2 Act of Parliament shall provide with respect to the performance of the functions of the Head of State in the case
			of absence from the United Kingdom, or the temporary
			incapacity, of the Head of State.
			34.3 The Head of State is personally entitled to —
			. 1 immunity from suit and legal process in any civil cause
			in respect of all things done or omitted to be done by the
			Head of State in a private capacity and;
			.2 immunity from criminal proceedings in respect of all
			things done or omitted to be done by the Head of State
			either in an official capacity or in a private capacity.
			34.4 .1 Act of Parliament shall provide with respect to the
			32 CONSTITUTION
			annual sum for the income, maintenance and upkeep of
			the Head of State and of such members of the family of
			the Head of State as the Cabinet, after consultation with
			the Head of State, considers appropriate (referred to in
			this Constitution as the “Civil List”).
			.2 The Head of State is entitled to immunity from taxation
			in respect of the Civil List.
			34.5 The Head of State may, after considering such advice as
			may be given by the Prime Minister, appoint or dismiss
			such officers and other members of the Head of State’s
			household as the Head of State considers necessary.
			35. Functions of the Head of State
			35.1 .1 After the coming into force of this Constitution, the
			functions of the Head of State, other than those of a ceremonial or formal nature, are derived only from this Constitution or Act of Parliament.
			.2 In performance of any function under this Constitution
			or an Act of Parliament, the Head of State may act only
			as required or permitted by this Constitution or the Act
			of Parliament.
			35.2 .1 In the performance of any function under this Constitution or Act of Parliament, the Head of State shall act in
			accordance with the advice of the Prime Minister, except where the Head of State is required thereunder to
			act —
			.1 on the advice or recommendation of any person
			(when the Head of State shall act in accordance with
			that advice or recommendation); or
			.2 after consultation with any person (when the Head of
			State shall act only after such consultation); or
			.3 in the discretion of the Head of State (when the Head
			of State shall exercise an independent judgment); or
			.4 in a way directed by this Constitution.
			.2 If the Head of State so requests, the Prime Minister shall
			reconsider the advice given by him or her.
			CONSTITUTION 33
			35.3 Where the Head of State is required by this Constitution or
			an Act of Parliament to act on the advice or recommendation of, or after consultation with, another person, no court
			shall consider —
			. 1 whether or by whom the advice or recommendation was
			given or whether and with whom the consultation took
			place; or
			.2 the nature of the advice, recommendation or consultation; or
			.3 whether the Head of State acted in accordance with the
			advice or recommendation.
			36. Duties of the Head of State
			36.1 The Head of State shall —
			.1 on the report of the Speaker of the House of Commons,
			appoint as the Prime Minister the person elected to that
			office by the House of Commons;
			.2 accept the resignation of the Prime Minister when tendered by the Prime Minister,
			.3 appoint to, and remove from, the office of Minister the
			persons whose names are submitted by the Prime Minister;
			.4 signify Assent to all Bills which, in accordance with this
			Constitution and the law and custom of Parliament,
			have passed through their stages in Parliament and are
			presented to the Head of State for Assent;
			.5 appoint such military officers, members of a public
			service and other persons whose appointments are,
			under this Constitution or an Act of Parliament, required
			to be made by the Head of State;
			.6 confer such honours, awards, decorations and distinctions upon such persons as are recommended by the
			Prime Minister;
			.7 prorogue and dissolve Parliament.
			36.2 The Head of State is the supreme commander of all the
			Armed Forces of the United Kingdom but shall exercise
			34 CONSTITUTION
			powers in relation thereto only in accordance with this
			Constitution or Act of Parliament.
			37. Personal powers of the Head of State
			37.1 The Head of State may —
			.1 give advice and make comments upon affairs of state
			and the governance of the United Kingdom to the Prime
			Minister and to other Ministers;
			.2 confer honours, awards, decorations and distinctions
			that are within the personal gift of the Head of State;
			.3 make public statements in right of the office of Head of
			the Commonwealth.
			37.2 .1 The Head of State shall exercise the powers in this
			Article in the discretion of the Head of State and shall
			not be obliged to seek or comply with any advice before
			so doing.
			.2 In exercising a power under this Article, the Head of
			State shall not manifest a preference, directly or indirectly, for any political party.
			37.3 No court shall consider, in relation to the exercise by the
			Head of State of any power under this Article, -
			. 1 whether and to whom the Head of State offered advice
			or whether and by whom advice was given to the Head
			of State;
			.2 whether the Head of State has manifested any preference for a political party.
			38. The power of mercy
			38. The Head of State, acting on the advice of the Minister of
			Justice, may —
			. 1 grant a pardon, either free or subject to lawful conditions, to a person convicted of an offence; or
			.2 grant a delay, either indefinite or for a specified period,
			from the enforcement of any sentence or order imposed
			on a person for an offence; or
			CONSTITUTION 35
			.3 substitute a less severe form of punishment for any
			punishment imposed on a person for an offence; or
			.4 remit the whole or part of any punishment imposed on
			a person for an offence or of any penalty, fine or
			forfeiture otherwise due to the Government on account
			of an offence.
			39. The Privy Council
			39.1 . 1 There is established by this Constitution a Privy Council, the members of which consist o f —
			. 1 the Heir to the Throne;
			.2 persons who hold or have held any of the following
			offices —
			. 1 Speaker of either House of Parliament;
			.2 Prime Minister;
			.3 member of the Cabinet;
			.4 Leader of the Opposition;
			.3 such other persons as may be appointed, for life, to be
			members by the Head of State on the advice of the
			Prime Minister.

			CONSTITUTION 37
			CHAPTERS
			THE EXECUTIVE
			Division 1: The Government o f the United Kingdom
			40. The executive power in the United Kingdom
			40.1 The executive power for the United Kingdom is vested in,
			and, subject to this Constitution, shall be exercised by, the
			Government of the United Kingdom.
			40.2 There is established by this Constitution a Government for
			the United Kingdom, which shall comprise —
			.1 the Prime Minister; and
			.2 the members of Parliament appointed as the Ministers of
			the Government.
			40.3 The Government has all the rights, powers and capacities of
			a person of full age and capacity, in addition to the rights,
			powers and capacities conferred by this Constitution and by
			or under Act of Parliament.
			40.4 The Government may act through the Cabinet, the appropriate Minister or any member of the public service for the
			United Kingdom duly authorised by the Cabinet or a
			Minister.
			41. The Prime Minister
			41.1 .1 There is established by this Constitution the office of
			Prime Minister.
			.2 The Prime Minister shall be elected by the House of
			Commons from among its members.
			41.2 The Prime Minister ceases to hold office —
			.1 if he or she ceases to be a member of the House of
			Commons for any reason other than the expiry or
			dissolution of the House; or
			.2 on the receipt by the Head of State of a letter of
			resignation from the Prime Minister; or
			.3 when a new election to the office is completed; or
			38 CONSTITUTION
			.4 if a motion of no confidence in the Prime Minister is
			passed by a majority of all the members of the House of
			Commons, or a motion for the confidence of the House
			of Commons in the Prime Minister defaults.
			42. Deputy Prime Minister
			42.1 The Prime Minister shall appoint a deputy Prime Minister
			from among the members of the Cabinet who are members
			of the House of Commons.
			42.2 The deputy Prime Minister shall perform the functions of
			the Prime Minister when the Prime Minister is for any
			reason unable to perform them or the office of Prime
			Minister is vacant.
			43. Ministers
			43.1 .1 There are established under this Constitution such
			number of offices of Minister as the Prime Minister
			from time to time determines.
			.2 Appointments to these offices shall be made, from
			among members of Parliament, by the Head of State on
			the advice of the Prime Minister.
			.3 The Ministers shall include —
			. 1 a Chancellor of the Exchequer (having responsibility
			for finance);
			.2 a Minister of Justice (having responsibility for courts
			and legal services);
			.3 a Minister having responsibility for international relations,
			who shall be appointed from among members of the
			House of Commons.
			43.2 A Minister shall be responsible for the conduct of such
			business of government and for the administration of, or
			within, such department of government as the Prime Minister assigns to the Minister.
			43.3 A Minister ceases to hold office —
			CONSTITUTION 39
			.1 if he or she ceases to be a member of a House of
			Parliament for any reason other than the expiry or
			dissolution of the House; or
			.2 if removed from office by the Head of State, acting on
			the advice of the Prime Minister, or
			.3 on the receipt by the Prime Minister of a letter of
			resignation from the Minister; or
			.4 when a new election to the office of Prime Minister is
			completed.
			44. The Cabinet
			44.1 There is established by this Constitution a Cabinet which
			consists of —
			.1 the Prime Minister;
			.2 the Chancellor of the Exchequer; and
			.3 the Minister of Justice; and
			.4 the Minister responsible for international relations; and
			.5 such other Ministers as the Prime Minister appoints.
			44.2 The Cabinet —
			. 1 has the general direction and control of the government
			of the United Kingdom; and
			.2 is collectively responsible to Parliament for the performance by the Government of its functions.
			44.3 .1 The Cabinet may appoint such committees as it considers necessary, or are required, to assist the Cabinet in the
			discharge of its responsibilities.
			.2 The purpose, membership, terms of reference and duration of the committees shall be reported to Parliament by
			the Prime Minister.
			45. Ministerial responsibility
			45.1 The Prime Minister shall keep Parliament and the Head of
			State fully informed about all matters pertaining to the
			conduct of government.
			45.2 A Minister shall —
			40 CONSTITUTION
			. 1 exercise general direction and control over all matters
			within the area of responsibility assigned to that Minister; and
			.2 render a full and regular account to Parliament and its
			committees concerning those matters.
			45.3 .1 As soon as practicable after appointment, a Minister
			shall —
			.1 lay before Parliament a full description of the responsibilities assigned to the Minister; and
			.2 indicate, with reasons, any matter concerning which
			the Minister may be unwilling to give a full account
			to Parliament.
			.2 A Minister shall inform Parliament of any significant
			change in those responsibilities or with respect to any
			matter for which the Minister may be unwilling to give
			such an account.
			46. Code of Ministerial Conduct
			46.1 The Prime Minister shall lay before Parliament a Code of
			Conduct for Ministers.
			46.2 The Code, and any amendments to the Code, shall take
			effect when approved by resolutions of both Houses of Parliament, and is binding on all Ministers.
			46.3 The Integrity Committee of the Constitutional Commission
			may investigate any alleged breach of the Code of Conduct
			by a Minister in accordance with Article 77.
			Division 2: Legal Officers
			47. Attorney-General
			47.1 There is established by this Constitution the office of Attorney-General.
			47.2 The Attorney-General shall be appointed by the Prime Minister from among persons who —
			.1 are not members of Parliament; and
			.2 have rights of audience, or are entitled to conduct litiga-
			CONSTITUTION 41
			tion, in the superior courts of any part of the United
			Kingdom.
			47.3 Act of Parliament shall provide for the conditions of service
			in respect of the office, but the Attorney-General ceases to
			hold office -
			.1 if he or she ceases to have a qualification for appointment to the office; or
			.2 if removed from office by the Prime Minister; or
			.3 on the receipt by the Prime Minister of a letter of
			resignation from the Attorney-General; or
			.4 when a new election to the office of Prime Minister is
			completed.
			47.4 The Attorney-General —
			.1 is the principal legal adviser to the Government; and
			.2 has responsibility, on behalf of the Government, with
			respect to the conduct of litigation to which the Government is a party.
			47.5 The Attorney-General shall attend, but shall not vote at,
			meetings of the Cabinet.
			48. Director of Public Prosecutions
			48.1 .1 There is established by this Constitution, within the
			Ministry of Justice, the office of Director of Public
			Prosecutions.
			.2 Act of the Assembly for Scotland shall establish and
			make provision with respect to an office for Scotland
			with equivalent powers.
			.3 Act of the Assembly for Northern Ireland shall establish
			and make provision with respect to an office of Director
			of Public Prosecutions for Northern Ireland with equivalent powers.
			48.2 The Director of Public Prosecutions shall be appointed by
			the Minister of Justice, acting in accordance with the recommendation of the Judicial Services Commission for
			England and Wales, from persons having rights of audience
			in the superior courts of the United Kingdom.
			42 CONSTITUTION
			48.3 The holders of the offices established by or under this
			Article have the same tenure as a judge under Article 108,
			and the provisions of Parts 3 and 4 of Chapter 9 with respect
			to complaints relating to judges and the removal of judges
			apply as if those office-holders were judges.
			48.4 The Director of Public Prosecutions has the power, where
			the Director considers it in the public interest -
			. 1 to institute and undertake criminal proceedings before
			any United Kingdom court or any court in England or
			Wales (other than a court trying offences by members of
			the Armed Forces);
			.2 to consent or refuse consent to the institution of any such
			proceedings for which the consent of the Director is required by law;
			.3 to take over and continue any such criminal proceedings
			instituted by another person or authority;
			.4 to discontinue, at any stage before a decision is announced, any such criminal proceedings (other than an
			appeal by the person convicted), whether instituted or
			undertaken by the Director or by another person or
			authority.
			48.5 .1 The powers in paragraphs .4.2 to .4.4 are vested in the
			Director of Public Prosecutions to the exclusion of any
			other person or authority.
			.2 The powers of the Director under paragraph .4 are not
			subject to the direction or control of any other person or
			authority, but before exercising the power of consent
			under paragraph .4.2, the Director shall consult the
			Attorney-General.
			48.6 The powers of the Director of Public Prosecutions under
			paragraph .4 may be exercised by the Director personally or
			through other persons, who shall act in accordance with any
			general or specific instructions of the Director.
			49. Director of Civil Proceedings
			49.1 .1 There is established by this Constitution, within the
			Ministry of Justice, the office of Director of Civil
			Proceedings.
			CONSTITUTION 43
			.2 Act of the Assemblies for Scotland and Northern Ireland
			shall establish and make provision with respect to an
			office for Scotland and for Northern Ireland with equivalent powers.
			49.2 The Director of Civil Proceedings shall be appointed by the
			Minister of Justice, acting in accordance with the recommendation of the Judicial Services Commission for England and Wales, from persons having rights of audience in
			the superior courts of the United Kingdom.
			49.3 The holders of the offices established by or under this
			Article have the same tenure as a judge under Article 108,
			and the provisions of Parts 3 and 4 of Chapter 9 with respect
			to complaints relating to judges and the removal of judges
			apply as if those office-holders were judges.
			49.4 The Director of Civil Proceedings has the power, where the
			Director considers it in the public interest, -
			. 1 to institute and, with the leave of the court, to intervene
			in, civil proceedings before any United Kingdom court
			or any court inor England or Wales, and in particular,
			any proceedings —
			. 1 in connection with any contravention of the Bill of
			Rights or other provisions of this Constitution; or
			.2 as a result of which the compliance of the United
			Kingdom with obligations under the law of the European Community or under treaty may come in issue;
			.3 for judicial review;
			which, in the opinion of the Director, give rise to issues
			of public importance;
			.2 to consent or refuse consent to the institution of any
			proceedings for which the consent of the Director is
			required by law.
			49.5 .1 The power in paragraph .4 is vested in the Director of
			Civil Proceedings to the exclusion of any other person
			or authority.
			.2 The powers of the Director under paragraph .4 are not
			subject to the direction or fcontrol of any other person or
			authority, but before exercising the power of consent
			44 CONSTITUTION
			under paragraph .4.2, the Director shall consult the
			Attorney-General.
			49.6 The powers of the Director of Civil Proceedings under
			paragraph .4 may be exercised by the Director personally or
			through other persons, who shall act in accordance with any
			general or specific instructions of the Director.
			Division 3: International Relations
			50. European Community law
			50. The law of the European Community has effect in the
			United Kingdom as provided by sections 1 to 3 of the
			European Communities Act 1972 (as amended by the
			European Communities (Amendment) Act 1986), and those
			sections have effect as part of this Constitution.
			51. International relations
			51.1 The Government —
			. 1 shall conduct the international relations of the United
			Kingdom; and
			.2 subject to this Constitution and Acts of Parliament, has
			all necessary powers for that purpose, including the
			powers to maintain diplomatic representatives abroad
			and to receive in the United Kingdom diplomatic representatives from other states.
			51.2 No treaty concluded by the Government of the United
			Kingdom shall be binding upon the United Kingdom,
			unless —
			. 1 the treaty is laid before Parliament; and
			.2 within 3 months after it has been so laid, each House of
			Parliament, by resolution, authorises the Government to
			give consent for the United Kingdom to be bound as a
			party to the treaty.
			51.3 A treaty to which the Government has given consent under
			the authority of such resolutions has effect, on coming into
			force, as part of the domestic law of the United Kingdom to
			the extent that it is capable of having such effect.
			CONSTITUTION 45
			51.4 For the purpose of this Article, the expression “treaty”
			means an agreement in writing, governed by international
			law, between the United Kingdom and another state or an
			organisation of which only states are members.

			CONSTITUTION 47
			CHAPTER 6
			THE LEGISLATURES
			Part 1: The Legislative Power
			52. The legislative power
			52.1 The legislative power in the United Kingdom is vested in
			Parliament and the Assemblies.
			52.2 The division of competence between Parliament and the
			Assemblies is as determined by this Constitution.
			52.3 .1 Nothing in this Constitution prevents an Act of Parliament or of an Assembly conferring legislative functions
			upon another authority.
			.2 No Bill may be passed by Parliament or by an Assembly
			which transfers permanently, or divests Parliament or
			the Assembly of, legislative power.
			53. Exclusive legislative powers of Parliament
			53.1 Parliament has exclusive powers to make laws with respect
			to —
			.1 the seat of government of the United Kingdom and all
			places acquired by the Government of the United Kingdom for public purposes;
			.2 matters relating to any department, authority or agency
			which, by this Constitution, is under the Government of
			the United Kingdom;
			.3 other matters declared by this Constitution to be within
			the exclusive power of Parliament, which include —
			. 1 the Constitution, including the Head of State, Parliament, elections and the courts of the United Kingdom
			and of England and Wales;
			.2 membership of the European Community, the British
			Islands outside the United Kingdom and the dependent territories, Commonwealth and international relations.
			.3 the Armed Forces, civil defence and national security;
			.4 citizenship, nationality and immigration;
			48 CONSTITUTION
			.5 taxation and social security;
			.6 coinage, legal tender, interest rates and credit, banking and insurance;
			.7 postal services and telecommunications;
			.8 matters affecting the freedom of trade and commerce
			within the United Kingdom and trade outside the
			United Kingdom.
			53.2 Parliament has exclusive power to legislate where legislation is required to give effect, as part of the domestic law of
			the United Kingdom, to —
			1. treaties; or
			2. European Community obligations.
			53.3 Parliament may, by Act of Parliament, delegate to an Assembly the power to legislate on any matter that is within
			the exclusive legislative powers of Parliament.
			54. Legislative powers of Assemblies
			54.1 The Assemblies have powers to make laws, in relation to
			their nation or region, with respect to the following matters-
			.1 agriculture and fisheries;
			.2 arts and leisure;
			.3 education;
			.4 energy;
			.5 the environment;
			.6 health;
			.7 housing;
			.8 local government;
			.9 regional policy and development;
			.10 social welfare;
			. 11 trade and industry;
			.12 transport.
			54.2 The Assemblies for Scotland and Northern Ireland, in addition, have powers to make laws, in relation to their nation,
			CONSTITUTION 49
			with respect to the following matters -
			. 1 the courts and legal services;
			.2 tribunals and inquiries;
			.3 civil law;
			.4 crime;
			.5 police and prisons.
			54.3 A law made by an Assembly may amend or repeal a
			provision of law made by or under an Act of Parliament
			before the coming into force of this Constitution.
			54.4 It is not within the powers of an Assembly to make any provision of law which —
			. 1 extends to any part of the United Kingdom beyond the
			national or regional boundaries of that Assembly, except
			in the case of the Assemblies of Wales and the regions
			of England, in so far as is necessary to enable legal proceedings to be brought to enforce the provision;
			.2 has the effect of amending this Constitution;
			.3 is inconsistent with any provision of European Community law.
			55. Concurrent legislative powers
			55.1 Parliament may make laws with respect to any matter that
			is within the legislative powers of the Assemblies under
			Article 54, if -
			.1 that matter cannot be adequately regulated by an individual Assembly; or
			.2 the regulation of a matter by an Assembly would prejudice the interests or interfere with the rights of residents
			of other parts of the United Kingdom.
			55.2 Unless Act of Parliament otherwise expressly provides, a
			matter with respect to which Parliament has made a law
			under this Article shall be within the executive powers of
			national, regional or local authorities.
			56. Conflicts of legislation
			56. Subject to Article 54.3, if an Act of an Assembly is incon-
			50 CONSTITUTION
			sistent with an Act of Parliament —
			. 1 the Act of Parliament prevails; and
			.2 the Act of the Assembly, to the extent of the inconsistency, is void.
			Part 2: Parliament
			Division 1: Composition o f Parliament
			57. Parliament
			57.1 There is established by this Constitution a Parliament for
			the United Kingdom, which consists of the Head of State,
			the House of Commons and the Second Chamber.
			57.2 Parliament —
			.1 subject to this Constitution, may make laws for the
			peace, order and good government of the United Kingdom; and
			.2 shall hold the Government of the United Kingdom to
			account.
			58. Membership
			58.1 The elections for members of Parliament shall —
			.1 be conducted in accordance with this Constitution and
			the electoral law made under Article 83;
			.2 be held at the times prescribed in Part 3 of Schedule 3;
			and
			.3 be supervised by the Electoral Commission.
			58.2 The House of Commons shall be composed of not more
			than 525, and not less than 475, members, as determined by
			Act of Parliament.
			58.3 The Second Chamber shall be composed of not more than
			265, and not less than 225, members, as determined by Act
			of Parliament.
			58.4 No member of a House of Parliament may stand for election
			to, or sit as a member of, the other House.
			58.5 The number of members of a House of Parliament who hold
			CONSTITUTION 51
			ministerial office shall not exceed one-tenth of the membership of that House.
			58.6 The right of members of the Houses of Parliament to vote
			in Parliament shall be exercised in person.
			59. Qualifications and disqualifications for membership
			59.1 A person is qualified for election as a member of either
			House of Parliament if that person is entitled under Article
			83.2 to vote in elections for Parliament.
			59.2 No person is qualified for election as a member of either
			House of Parliament, if that person -
			. 1 is not a British National;
			.2 holds or is acting in any office in the public service under
			the Government or is a full-time member of the judiciary, the regular Armed Forces or the police;
			.3 is an undischarged bankrupt;
			.4 is detained under the provisions of any law on the
			ground of suffering from mental illness;
			.5 is serving a sentence of imprisonment for more than one
			year, or an indefinite sentence, following conviction for
			a criminal offence;
			.6 holds or is acting in any office the function of which
			involves any responsibility for, or in connection with,
			the conduct of any election for Parliament or the compilation or revision of any electoral register;
			.7 is disqualified for membership of Parliament under any
			law by reason of having been convicted of any offence
			connected with an election for Parliament
			59.3 The seat of a member of a House of Parliament becomes vac a n t—
			.1 upon the next expiry or dissolution of that House after
			the election of the member; or
			.2 on the receipt by the Speaker of that House of a letter of
			resignation from the member; or
			.3 if the member is expelled by resolution of that House for
			misconduct or for persistent neglect of Parliamentary
			52 CONSTITUTION
			duties;
			.4 if any other circumstances arise which would cause the
			member, if he or she were not a member, to be disqualified from election as a member of that House.
			60. Expiry and dissolution of Houses of Parliament
			60.1 The term of each House of Parliament is 4 years, which expires 21 days before the date upon which the election for
			that House is required by Part 3 of Schedule 3.
			60.2 If, within 20 parliamentary days following the passing of a
			motion of no confidence in the Prime Minister, the House
			of Commons fails to elect a Prime Minister, the Head of
			State shall dissolve the House of Commons forthwith, by
			Proclamation.
			60.3 If a motion of no confidence in the Government is passed
			by the House of Commons, or a motion for the confidence
			of the House of Commons in the Government defaults, the
			Head of State shall dissolve the House of Commons within
			the 7 days following, by Proclamation.
			60.4 The term of the House of Commons summoned after the
			general election immediately following a dissolution is the
			remainder of the term of the previous House of Commons.
			60.5 .1 On the same day that the term of a House ends, whether
			by expiry or dissolution, the Head of State shall summon
			a new House, by Proclamation.
			.2 The meeting of the new House shall be held within one
			month of the general election at such time as the Proclamation shall appoint.
			60.6 For the purposes of this Constitution, the expression “parliamentary days” means days on which either House of
			Division 2: Powers and Procedure
			61. Powers and privileges of Parliament
			61.1 .1 Each House of Parliament, and its members, have the
			rights, powers, privileges and jurisdiction vested in the
			corresponding House, or its members, immediately
			prior to the coming into force of this Constitution,
			CONSTITUTION 53
			except to the extent that they are altered by, or are
			inconsistent with, this Constitution or Act of Parliament
			passed after this Constitution comes into force.
			.2 The rights and privileges of members apply notwithstanding the Bill of Rights, contained in Chapter 2.
			61.2 The freedom of speech and debates or proceedings in
			Parliament shall not to be impeached or questioned in any
			court or place out of Parliament.
			61.3 Each House of Parliament may regulate its own procedure,
			and for that purpose may make standing orders.
			61.4 Each House of Parliament has the power to send for
			persons, papers and records, and this power may be delegated by the House to its committees.
			62. The Speakers
			62.1 At its first meeting after the summoning of a new House of
			Parliament and before proceeding to the despatch of any
			other business, that House shall elect one of its members,
			other than a Minister, to be the Speaker of that House.
			62.2 If the office of Speaker in either House falls vacant at any
			time before the expiry of the House, that House shall, as
			soon as practicable, elect another such member of the
			House to the office.
			62.3 Standing orders of each House shall —
			.1 provide for deputies to the Speaker; and
			.2 regulate proceedings connected with the election of the
			Speaker and deputies.
			.3 provide for the appointment of a Counsel to the Speaker
			who shall provide such legal advice as the Speaker, a
			deputy to the Speaker or the House may require.
			62.4 A certificate that is endorsed on any Bill by the Speaker of
			the House of Commons or the Speaker of the Second
			Chamber, and in particular on a Money Bill under Article
			67, a public Bill under Article 68, a Bill for the amendment
			of the Constitution under Article 69, or a Constitutional Bill
			under Article 70, is conclusive and its validity shall not be
			considered by any court, other than the Supreme Court.
			54 CONSTITUTION
			63. Salaries and facilities
			63.1 Members of the Houses of Parliament shall receive salaries
			and pensions and facilities appropriate to the full-time performance of their responsibilities.
			63.2 Standing orders of both Houses shall ensure that the time
			and hours of their sittings have regard to the needs of all
			persons who are eligible to be members.
			64. Declarations of interest
			64.1 In any debate or proceeding of either House or of any of its
			committees or in transactions or communications which a
			member may have with other members of Parliament or
			with Ministers or with members of a public service, the
			member shall disclose any relevant pecuniary interest or
			benefit of whatever nature, whether direct or indirect, that
			he or she may have had, may have, or may be expecting to
			have.
			64.2 .1 Each House of Parliament shall maintain a Register of
			Members’ Interests, which shall be available for public
			inspection.
			.2 There shall be established a joint Select Committee of
			both Houses to examine, and make recommendations to
			Parliament on, matters connected with the Register.
			Division 3: Legislative Powers
			65. Introduction of Bills
			65.1 .1 A Bill for a Public General Act (referred to in this Constitution as a “public Bill”), other than a Money Bill,
			may be introduced in either House by any member.
			.2 Subject to this Constitution, a public Bill becomes law
			when it is passed by the affirmative vote of a majority of
			the members of both Houses of Parliament, sitting separately, and the Assent of the Head of State is signified.
			65.2 The presentation, and procedure for enactment, of Bills for
			Local and Personal Acts shall be regulated by standing
			orders of both Houses.
			65.3 Except on the recommendation or with the consent of the
			CONSTITUTION 55
			Cabinet, signified by a Minister, neither House of Parliament shall -
			. 1 proceed with any Bill (including any amendment to a
			Bill) which, in the opinion of the person presiding,
			makes provision for any of the following purposes —
			. 1 for imposing, increasing, reducing or abolishing any
			tax;
			.2 for imposing or increasing any charge on the Consolidated Fund, or other public fund or the public
			revenue, of the United Kingdom, or for altering any
			such charge otherwise than by reducing it; or
			.3 for compounding or remitting any debt due to the
			Government;
			.2 proceed upon any motion (including any amendment to
			a motion) the effect of which, in the opinion of the
			person presiding, would be to make provision for any of
			those purposes; or
			.3 receive any petition which, in the opinion of the person
			presiding, requests that provision be made for any of
			those purposes.
			65.4 The validity of the proceedings leading to the enactment of
			an Act of Parliament shall not be considered by any court.
			65.5 The words of enactment for public Bills shall be as set out
			in Schedule 6.
			66. Subordinate legislation
			66.1 A Standing Committee shall be established by each House
			of Parliament which shall examine and, where in the
			opinion of the Committee it is necessary, report to the
			House with respect to -
			. 1 an enabling provision in any public Bill presented to the
			House which delegates legislative power; and
			.2 any subordinate legislation laid before the House which,
			in the opinion of the Committee —
			56 CONSTITUTION
			. 1 imposes orprescribes a charge on the public revenues
			of the United Kingdom; or
			.2 requires payment to be made for any licence or
			consent or other service from a public body; or
			.3 is made under an enactment excluding it from challenge in the courts; or
			.4 purports to have retrospective effect where the enactment under which it is made does not so provide; or
			.5 has been unjustifiably delayed in publication or in
			being laid before Parliament; or
			.6 has not been duly notified to the Speaker where it
			comes into effect before being laid before Parliament; or
			.7 gives rise to doubts whether it is intra vires or appears
			to make an unusual or unexpected use of the powers
			conferred by the enactment under which it is made;
			or
			.8 requires elucidation as to its form or purport or is
			defective in drafting.
			66.2 Nothing in this Constitution shall be construed as affecting
			the power of either House of Parliament to annul subordinate legislation that is subject to annulment by resolution of
			either House, or to disapprove subordinate legislation that
			is subject to approval by resolution of either House.
			67. Restrictions on powers of Second Chamber as to Money Bills
			67.1 If a Money Bill, that has been passed by the House of Commons and sent to the Second Chamber at least 30 parliamentary days before the end of the session, is not passed by the
			Second Chamber, without amendment, within 30 parliamentary days after it is sent, the Bill shall -
			.1 unless the House of Commons otherwise directs, be
			presented to the Head of State for Assent; and
			.2 become an Act of Parliament on Assent being signified,
			notwithstanding that the Second Chamber has not consented to the Bill.
			67.2 .1 For the purposes of this Constitution, the expression
			CONSTITUTION 57
			“Money Bill” means a public Bill which, in the opinion
			of the Speaker of the House of Commons, contains only
			provisions dealing with all or any of the following
			matters -
			. 1 the imposition, repeal, remission, alteration, or regulation of taxation;
			.2 the imposition, for the payment of debt or other
			financial purposes, of charges on the Consolidated
			Fund, the National Loans Fund or on money appropriated by Parliament, or the variation or repeal of
			any such charges;
			.3 supply;
			.4 the appropriation, receipt, custody, issue or audit of
			accounts of public money;
			.5 the raising or guarantee of any loan or the repayment
			thereof;
			.6 matters incidental to those matters or any of them.
			.2 For the purposes of this Article, the expressions ‘taxation’, ‘public money’, and ‘loan’ do not include, respectively, taxation, money, or loan raised by an Assembly
			or local authority.
			67.3 There shall be endorsed on a Money Bill presented to the
			Head of State for Assent the certificate of the Speaker of the
			House of Commons, signed by the Speaker, that the Bill is
			a Money Bill.
			68. Restrictions on powers of Second Chamber as to certain Bills
			68.1 This Article —
			. 1 applies to any public Bill which has been passed by the
			House of Commons, after considering the Bill as passed
			by the Second Chamber, and which is sent back to the
			Second Chamber;
			.2 does not apply to a Money Bill, a Bill for the amendment
			of the Constitution or a Constitutional Bill.
			68.2 If a Bill to which this Article applies is rejected by the
			Second Chamber, then, subject to this Article, the Bill
			shall-
			58 CONSTITUTION
			68.3
			68.4
			68.5
			.1 if the House of Commons so resolves, be presented to
			the Head of State for Assent; and
			.2 become an Act of Parliament on Assent being signified,
			notwithstanding that the Second Chamber has not consented to the Bill.
			A resolution under this Article shall not be moved in the
			House of Commons until a period of delay of 12 calendar
			months has elapsed —
			.1 from the day on which the Bill was rejected by the
			Second Chamber; or
			.2 if the Bill was so rejected more than 120 parliamentary
			days after being sent to that House, from the last of those
			days.
			. 1 A resolution under this Article may be passed, and the
			Assent of the Head of State may be signified accordingly, notwithstanding any prorogation or the expiry or
			dissolution of either House during the period of delay.
			.2 In that case, the resolution shall not take effect unless
			passed within 30 parliamentary days after the end of the
			period of delay or the first meeting of the new House, as
			the case may be.
			For the purposes of this Article, a Bill is rejected by the Second Chamber in the following circumstances (and not otherwise) -
			.1 if a motion for the rejection of the Bill is carried, or a
			motion at any stage that the Bill be read or be passed is
			rejected or amended, by the Second Chamber;
			.2 if the Bill is passed by the Second Chamber with
			substantive provisions that are not identical with those
			in the Bill sent back to it by the House of Commons;
			.3 if, after 120 parliamentary days beginning on the day on
			which the Bill was sent back to the Second Chamber and
			in the session in which it was so sent -
			.1 a motion relevant to the progress of the Bill in the
			Second Chamber and expressed to be made pursuant
			to this Article, is proposed by the member in charge
			of the Bill and is rejected by the Second Chamber; or
			CONSTITUTION 59
			.2 the House of Commons resolves, on a motion of
			which at least 10 parliamentary days ’ notice has been
			given, that the Bill be treated for the purposes of this
			Article as rejected by the Second Chamber.
			68.6 The date on which a Bill is rejected by the Second Chamber
			shall be endorsed on the Bill by the Clerk of the Parliaments
			or, if the Bill is then in the possession of the House of Commons, by the Clerk of that House.
			68.7 On the expiration of the period of delay, the Bill shall,
			unless it is then in the possession of the House of Commons,
			be returned to that House.
			68.8 A Bill shall not be presented to the Head of State for Assent
			under this Article, unless there is endorsed upon it the
			certificate of the Speaker of the House of Commons, signed
			by him, that this Article has been complied with.
			Division 4: Constitutional amendments and legislation
			69. Amendment to the Constitution
			69.1 .1 Parliament may, by Act of Parliament, amend any of the
			following provisions of this Constitution -
			.1 this Article;
			.2 Chapters 1,2 and 3;
			.3 Articles 34 to 36 in Chapter 4;
			.4 Articles 40, 41, 44,47 to 49 and 50 in Chapter 5;
			.5 Articles 52 to 57 and 70 in Chapter 6;
			.6 Articles 78 and 79 and Schedules 1 and 2;
			.7 Articles 83 to 86, 88 and 89 in Chapter 8 and Part 1
			of Schedule 3;
			.8 Chapters 9 and Schedules 4 and 5,10, 11 and 12.
			.2 The Bill for the Act is passed if, at its final reading, it is
			supported by the votes of -
			.1 not less than two-thirds of all the members of the
			House of Commons; and
			.2 not less than two-thirds of all the members of the
			Second Chamber.
			60 CONSTITUTION
			69.2 .1 Parliament may, by Act of Parliament, amend any of the
			provisions of this Constitution not mentioned in paragraph .1.
			.2 The Bill for the Act is passed if, at its final reading, it is
			supported by the votes of —
			.1 not less than two-thirds of the members of the House
			of Commons present and voting, where that twothirds is not less than half of all the members of the
			House of Commons; and
			.2 not less than two-thirds of the members of the Second
			Chamber present and voting, where that two-thirds is
			not less than half of all the members of the Second
			Chamber.
			69.3 A Bill for the amendment of any provisions of Articles 53
			to 55 or of Chapter 7, which has been passed in accordance
			with paragraph .1 or .2, as the case may be, shall not be
			presented to the Head of State for Assent unless it has been
			ratified by at least two-thirds of the Assemblies, by the
			affirmative votes of a majority of the members present and
			voting in each such Assembly.
			69.4 .1 A Bill for the amendment of this Constitution —
			. 1 which provides that any part of the United Kingdom
			should cease to be so; and
			.2 which has been passed in accordance with paragraph
			.1.
			shall not be presented to the Head of State for Assent unless it has been approved by a majority of the registered
			voters in that part of the United Kingdom voting in a
			referendum held solely for that purpose.
			.2 Act of Parliament shall provide for the holding of
			referenda for that purpose.
			.3 The conduct of the referendum shall be under the supervision of the Electoral Commission.
			69.5 A Bill for the amendment of this Constitution shall not be
			presented to the Head of State for Assent unless there is
			endorsed upon it, as the case may require —
			. 1 a certificate of the Speaker of the House of Commons,
			CONSTITUTION 61
			signed by the Speaker, that paragraph. 1.2.1 or .2.2.1, .3
			or .4 has been complied with; and
			.2 a certificate of the Speaker of the Second Chamber,
			signed by the Speaker, that paragraph. 1.2.2 or .2.2.2 has
			been complied with.
			69.6 For the purpose of this Constitution, the expression “amendment”, in relation to this Constitution or any Article or
			provision of any Article, includes —
			. 1 revocation, with or without re-enactment, or the making
			of different provision in lieu;
			.2 modification, whether by omitting, or altering, or inserting additional provision, or otherwise; and
			.3 suspension of operation for any period or the termination of any such suspension.
			69.7 Nothing in this Article affects the terms of Article I of the
			Anglo-Irish Agreement 1985, or section 1 and Schedule 1
			of the Northern Ireland Constitution Act 1973 for such time
			as these measures are in force.
			70. Constitutional Bills
			70.1 A Constitutional Bill shall not be presented to the Head of
			State for Assent unless it is passed, at its final reading in
			both the House of Commons and the Second Chamber, by
			a majority of all the members of the House.
			70.2 If a Constitutional Bill, which has been passed by one
			House of Parliament, is not passed by the other House, the
			Bill shall be returned to the House by which it was passed,
			endorsed with the certificate of the Speaker of the other
			House, signed by the Speaker, that the B ill is a Constitutional
			Bill.
			70.3 For the purposes of this Constitution, the expression
			“Constitutional Bill” means a public Bill which, in the
			opinion of the Speaker of the Second Chamber, whilst not
			containing an amendment to the Constitution,
			.1 is required by or under this Constitution to be enacted;
			or
			62 CONSTITUTION
			.2 gives detailed effect to any Article of the Constitution;
			or
			.3 affects any Article of the Bill of Rights, contained in
			Chapter 2; or
			.4 affects the functions of the Head of State or the composition, powers or jurisdiction of the House of Commons,
			the Second Chamber, the Assemblies, the Supreme
			Court or the judiciary;
			and the expression “Constitutional legislation” shall be
			construed accordingly.
			Division 5: Public Finance
			71. Public Funds
			71.1 There are established by this Constitution a Consolidated
			Fund and a National Loans Fund for the United Kingdom.
			71.2 All revenues or other sums raised or received for the
			purposes of the government of the United Kingdom shall be
			paid into the Consolidated Fund, except revenues or other
			sums raised or received which, under this Constitution or
			another law, are payable into the National Loans Fund or
			another public fund established for a specific purpose.
			71.3 No sums shall be withdrawn from the Consolidated Fund
			except -
			.1 to meet expenditure that is charged upon the Consolidated Fund by this Constitution or another law; or
			.2 where the issue of the sums has been authorised by an
			Appropriation Act or under this Constitution.
			71.4 .1 All public funds, other than the Consolidated Fund and
			the National Loans Fund, shall be established and authorised by Act of Parliament.
			.2 No sums shall be withdrawn from the National Loans
			Fund or any public fund so established, unless the issue
			of those sums has been authorised by or under an Act of
			Parliament.
			71.5 .1 The public debt of the United Kingdom shall be a charge
			upon the Consolidated Fund, the National Loans Fund
			CONSTITUTION 63
			and such other public funds as may be establishedin accordance with paragraph .4.
			.2 The expression “public debt” includes interest on that
			debt, the repayment of that debt, charges in respect of
			public funds, and all expenditure, costs, and charges in
			connection with the management of that debt.
			72.Contingencies Fund
			72.1 Act of Parliament may -
			. 1 provide for the establishment of a Contingencies Fund;
			and
			.2 authorise the Chancellor of the Exchequer to make
			advances from that Fund to meet any urgent and unforeseen need for expenditure for which no other provision
			exists.
			72.2 Where an advance is made from the Contingencies Fund, a
			supplementary estimate shall be presented and a supplementary Appropriation Bill shall be introduced as soon as
			possible for the purpose of replacing the amount so advanced.
			72.3 The Treasury shall authorise the necessary arrangements
			for the accounting of all moneys authorised to be paid out
			of the Contingencies Fund.
			73. Appropriation
			73.1 .1 The Chancellor of the Exchequer shall cause to be
			prepared and laid before the House of Commons in each
			financial year estimates of the revenues and expenditure
			of the United Kingdom for the next following financial
			year.
			.2 The estimates of expenditure shall show separately -
			. 1 the total sums required to meet expenditure charged
			on the Consolidated Fund; and
			.2 the sums required to meet other expenditure.
			CONSTITUTION
			73.2 .1 When the estimates of expenditure have been approved
			by the House of Commons, a public Bill, known as an
			Appropriation Bill, shall be introduced into the House
			of Commons, which shall provide for the issue from the
			Consolidated Fund of the sums (other than sums charged
			on the Consolidated Fund) necessary to meet that expenditure and for the appropriation of those sums for the
			purposes specified therein.
			.2 Estimates of expenditure charged upon the Consolidated Fund shall not be voted upon by the House of
			Commons.
			73.3 If, in respect of any financial year, it is found that -
			. 1 the sum appropriated by the Appropriation Act for
			any purpose is insufficient; or
			.2 a need has arisen for expenditure for a purpose for
			which no amount has been appropriated by the Act;
			or
			.3 sums have been expended for any purpose in excess
			of the amount appropriated for the purpose by the Appropriation Act,
			a supplementary estimate showing the sums required or
			spent shall be laid before the House of Commons, and a
			supplementary Appropriation Bill shall be introduced
			into the House.
			73.4 If the Appropriation Act for any financial year has not come
			into force, or is not likely to come into force by the
			beginning of that financial year, the House of Commons
			may, by a vote on account, authorise the withdrawal from
			the Consolidated Fund of such sums as are considered
			necessary to carry on the government of the United Kingdom until the expiry of 4 months after the beginning of that
			financial year or the coming into force of the Act, whichever
			is the earlier.
			73.5 The Treasury shall make appropriate arrangements, including virement, for the authorisation of supply to ensure that
			all money shall be appropriated by Act of Parliament in accordance with this Constitution.
			CONSTITUTION 65
			74. Budget
			74.1 In each financial year, the Chancellor of the Exchequer
			shall prepare a comprehensive budget for the United Kingdom, which shall include proposals with respect to the
			raising of revenue for following financial year.
			74.2 The Chancellor of the Exchequer shall present the budget,
			when approved by the Cabinet, to the House of Commons.
			74.3 Nothing in this Article prevents the Chancellor of the Exchequer during a financial year from presenting supplementary budgets, when so approved, to the House of
			Commons for the purpose of raising additional revenue for
			that year.
			74.4 No revenue may be raised except under the authority of an
			Act of Parliament.
			75. Comptroller and Auditor General
			75.1 There is established by this Constitution the office of
			Comptroller and Auditor General.
			75.2 Act of Parliament shall provide for the appointment, tenure
			of office and conditions of service of the Comptroller and
			Auditor General, who shall -
			.1 be an officer of the House of Commons; and
			.2 perform the functions set out in this Article and as Act of
			Parliament may prescribe.
			75.3 .1 The Comptroller and Auditor General shall —
			. 1 audit the public accounts of the United Kingdom and
			of all officers, and authorities of the Government, and
			of the courts for United Kingdom and for England
			and Wales; and
			.2 report to Parliament thereon.
			.2 For that purpose, the Comptroller and Auditor General
			has access to all books, records, reports and other documents relating to those accounts.
			Division 6: Constitutional Commission
			76. Constitutional Commission
			76.1 .1 There is established by this Constitution a Constitutional
			66 CONSTITUTION
			Commission, which consists of not more than 16
			members.
			.2 The members shall be appointed, in equal numbers from
			among their members, by the House of Commons and
			the Second Chamber, as soon as practicable after the
			House first meets following a general election.
			.3 The Commission may co-opt members who are not
			members of Parliament, but the co-opted members shall
			not exceed one-third of the total membership of the
			Commission.
			.4 No Minister shall be a member of the Commission.
			76.2 The Chairman of the Commission shall be elected by the
			members from among their own number.
			76.3 The Commission -
			. 1 shall keep under review -
			. 1 the working of the Constitution and the Constitutional
			legislation; and
			.2 the reports of the investigations of its Integrity Committee;
			and shall report its findings annually to Parliament, together with any recommendations for the amendment of
			the Constitution or such legislation; and
			.2 shall prepare Codes of Conduct and other guidelines
			concerning the standards of conduct with which persons
			may reasonably be expected to comply when holding a
			public office to which they have been appointed or
			elected by virtue of being persons elected to either
			House of Parliament, to an Assembly or to a local
			authority.
			77. Integrity Committee
			77.1 .1 The Constitutional Commission shall establish from
			amongst its members who are members of Parliament a
			committee to be known as the Integrity Committee.
			.2 The Chairman of the Constitutional Commission shall
			be the Chairman of the Integrity Committee.
			CONSTITUTION 67
			77.2 The Integrity Committee —
			. 1 may investigate the propriety of the conduct as a Minister of any person who is or has at any time been a
			Minister, whether of its own initiative or on a reference
			by either House of Parliament or by a committee of
			either House;
			.2 for that purpose, has all the powers of a tribunal of inquiry
			appointed under the Tribunals of Inquiry (Evidence) Act
			1921;
			.3 shall lay before the House of Parliament of which the
			person under investigation is or was a member at the
			time of the conduct investigated, and shall publish the
			report of its findings.
			77.3 The House of Parliament before which areport is laid under
			paragraph .2.3 shall consider that report within 60 days
			after it has been laid.

			CONSTITUTION 69
			CHAPTER 7
			NATIONAL AND REGIONAL GOVERNMENT
			78. Assemblies
			78.1 .1 There is established by this Constitution an Assembly
			for Scotland, for Wales, for Northern Ireland and for
			each of the regions of England, having the areas set out
			in Schedule 1.
			.2 Each Assembly -
			. 1 may, subject to this Constitution and in particular
			Part 1 of Chapter 6, make laws for the peace, order
			and good government of its nation or region; and
			.2 shall hold its Executive to account.
			.3 Act of Assembly may provide with respect to the
			names by which the Assembly and the members of
			the Assembly may be known.
			78.2 The elections for members of the Assemblies shall -
			.1 be conducted in accordance with the electoral law
			enacted by Parliament under Article 83;
			.2 be held at the times prescribed in Part 3 of Schedule 3;
			and
			.3 be supervised by the Electoral Commission.
			78.3 Act of Parliament shall provide -
			.1 with respect to the numbers of the members of the
			Assemblies;
			.2 subject to Article 83.2, with respect to the qualifications
			and disqualifications for the members.
			78.4 The term of an Assembly is 4 years, which expires 21 days
			before the date upon which the elections for Assemblies are
			required by Part 3 of Schedule 3.
			78.5 The procedure of each Assembly shall, subject to any Act
			of the Assembly, be regulated by standing orders of the Assembly, which shall include provision for -
			.1 the appointing of a date for the first meeting of the
			Assembly after each election;
			70 CONSTITUTION
			.2 the election of a presiding officer from among the
			members of the Assembly and for the tenure of that
			office;
			.3 the nomination, mode of election and removal of the
			Chief Executive;
			.4 the requirements to be met by the Executive in the
			presentation of policies and legislative proposals;
			.5 the information to be made available by the Executive to
			the Assembly;
			.6 securing disclosure by members of pecuniary interests,
			any consequent restriction of participation in the debates of the Assembly, and the consequences of failure
			to disclose pecuniary interests.
			78.6 An Assembly may do anything which is calculated to
			facilitate or is conducive or incidental to the discharge of
			any of its functions.
			78.7 .1 Laws made by an Assembly are called Acts of the
			Assembly.
			.2 A Bill for an Act becomes an Act of the Assembly when
			it i s -
			.1 passed by the affirmative vote of a majority of the
			members of the Assembly voting; and
			.2 so certified by the presiding officer of the Assembly
			and the Clerk to the Assembly.
			.3 The validity of the proceedings leading to the enactment
			of an Act of an Assembly shall not be considered by any
			court.
			79. Executives
			79.1 There is established by this Constitution an Executive for
			Scotland, for Wales, for Northern Ireland and for each of the
			regions in England.
			79.2 . 1 Each Executive consists of -
			.1 a Chief Executive, who shall be elected by the
			appropriate Assembly from among its members, in
			accordance with its standing orders; and
			CONSTITUTION 71
			.2 such members of the Assembly asare appointed by
			the Chief Executive to be members of the Executive.
			.2 The Chief Executive may appoint members of the Assembly to be assistants to the members of the Executive.
			.3 Act of Parliament shall provide with respect to the
			number of the members of an Assembly who may be
			appointed to be members of the Executive or assistants
			to such members.
			.4 Act of Assembly shall provide with respect to the titles
			by which the Chief Executive and the members of the
			Executive may be known.
			79.3 .1 In Scotland and Northern Ireland, notwithstanding paragraph .2, the Chief Executive may appoint a person who
			is not a member of the Assembly as a member of the
			Executive to perform functions corresponding to those
			performed before the coming into force of this Constitution by a Law Officer of the Crown.
			.2 A member of the Executive appointed under this paragraph may participate in the proceedings of the Assembly but shall not vote.
			79.4 The Executive shall exercise the executive powers of the
			Government with respect to -
			. 1 all matters which fall within the legislative competence
			of the appropriate Assembly as provided by this Constitution; and
			.2 such other matters as Act of Parliament may prescribe.
			79.5 A member of an Executive is responsible for the conduct of
			such business of the Executive as the Chief Executive
			assigns to the member.
			79.6 A member of an Executive, or an assistant to a member,
			ceases to hold office -
			. 1 if the member or assistant ceases to be a member of the
			Assembly for any reason other than the expiry of the Assembly; or
			.2 if removed from office by the Chief Executive; or
			.3 on the receipt by the Chief Executive of a letter of
			72 CONSTITUTION
			resignation from the member or assistant; or
			.4 when a new election to the office of Chief Executive is
			completed; or
			.5 if a motion of no confidence in the Executive is passed
			by a majority of all the members of the Assembly.
			80. Finance and revenue sharing
			80.1 .1 There is established by this Constitution a Consolidated
			Fund and a Loans Fund for each nation and region.
			.2 Sums may be transferred in a nation or region from one
			to the other of these Funds on the authority of the
			Executive, signified by the member of the Executive
			having responsibility for finance.
			80.2 There shall be paid into the Consolidated Fund for a nation
			or region -
			. 1 the share of the personal income tax raised in the United
			Kingdom that is allocated to that nation or region in
			accordance with Schedule 2; and
			.2 such other receipts of its Executive that are not paid into
			the Loans Fund and have not been disposed of and accounted for under an order under paragraph .4.
			80.3 Sums forming part of a Consolidated Fund may be appropriated by an Executive only for purposes related to those
			matters in which, under Article 79.4, the Executive may
			exercise executive powers or to meet expenses incurred
			under Article 78.6.
			80.4 Sums forming part the Loans Fund, and sums forming part
			of the receipts of the Executive, may be appropriated by
			order of the Executive, which shall provide with respect to
			their disposal and accounting.
			80.5 No order appropriating any sum shall be made by the Executive unless a draft of the order appropriating that sum
			has been laid before the Assembly and has been approved
			by a resolution of the Assembly.
			81. Borrowing
			81.1 .1 The Executive may borrow such sums as appear to the
			CONSTITUTION 73
			Executive to be necessary to meet expenditure approved
			by the Assembly.
			.2 No such sums may be borrowed unless the borrowing
			has been approved by a resolution of the Assembly.
			.3 The total sums that may be borrowed in any financial
			year under this Article shall not exceed one-third of the
			annual expenditure approved by the Assembly for that
			financial year.
			81.2 No borrowing may be undertaken by the Executive if, in
			consequence, the total sums borrowed for the time being
			under this Article would exceed 3 times the annual revenue
			of the Assembly at the time.
			81.3 The Executive may borrow such sums as appear to the
			Executive to be required -
			.1 to meet a temporary excess of sums paid out of the
			Consolidated Fund or the Loans Fund over the sums
			paid into the Fund; or
			.2 to provide a working balance in either Fund.
			81.4 Sums borrowed by the Executive shall be paid into the
			Loans Fund or Consolidated Fund.
			81.5 Any sums required for the repayment of, or the payment of
			interest on, sums borrowed under this Article that are not
			paid out of the Loans Fund shall be a charge upon the
			Consolidated Fund.
			82. Local government
			82.1 Act of Assembly shall provide for the establishment of
			elected local authorities in each nation and region.
			82.2 The boundaries for each local authority shall be determined
			by the parent Assembly, with the approval of the Electoral
			Commission.
			82.3 The elections to local authorities shall -
			.1 be conducted in accordance with the electoral law
			enacted by Parliament under Article 83;
			.2 be held at the times prescribed in Part 3 of Schedule 3;
			and
			74 CONSTITUTION
			.3 be supervised by the Electoral Commission.
			82.4 A local authority -
			. 1 shall perform such functions as Act of the parent Assembly shall determine; and
			.2 has general competence to undertake whatever measures it sees fit for the benefit of all those within its area,
			including the making of bye-laws; but in performing
			such functions or undertaking such measures, the local
			authority shall not act in conflict or inconsistently with
			any legislation enacted by or under the authority of
			Parliament or by the parent Assembly.
			82.5 Each local authority is entitled -
			.1 to levy rates upon domestic and business properties
			within its jurisdiction; or
			.2 raise any other form of local tax authorised by Act of
			Parliament,
			in accordance with Act of the parent Assembly.
			CONSTITUTION 75
			CHAPTER 8
			ELECTIONS
			83. Electoral law and qualifications
			83.1 Elections for Parliament, the European Parliament, the Assemblies and the other elected bodies established by or
			under this Constitution shall be general, direct, equal and
			free and by secret ballot under conditions which ensure the
			free expression of the people of the United Kingdom.
			83.2 A British National who has attained the age of 18 years is
			entitled to vote in elections for, and stand for election to,
			Parliament, the European Parliament, the Assemblies and
			the other elected bodies established by this Constitution,
			subject to such disqualifications as Act of Parliament shall
			prescribe.
			83.3 Act of Parliament shall -
			.1 determine the extent to which the franchise shall be
			extended to other classes of persons; and
			.2 provide for the electoral law which shall govern the
			franchise, the qualification and nomination of candidates, election expenditure and other matters concerning the conduct of elections to Parliament, the European
			Parliament, the Assemblies and local authorities.
			84. Elections to House of Commons
			84.1 The constituencies for the House of Commons shall be determined in accordance with Part 1 of Schedule 3.
			84.2 At each general election one member shall be returned for
			each constituency in accordance with Part 2 of Schedule 3.
			84.3 Following each general election, additional members equal
			in number to the number of constituencies shall be declared
			by the returning officer in accordance with Part 2 of
			Schedule 3.
			85. Elections to Second Chamber
			85.1 The constituencies for the Second Chamber shall be determined in accordance with Part 1 of Schedule 3.
			76 CONSTITUTION
			85.2 At each general election there shall be returned for each
			constituency such number of members (being not less than
			5 and not more than 9) as is determined for that constituency
			in accordance with Part 2 of Schedule 3.
			85.3 Members shall be elected by a system of single transferable
			voting in accordance with Part 2 of Schedule 3.
			86. By-elections
			86.1 Upon a vacancy arising in the membership of either House
			of Parliament in respect of a seat held by an elected member,
			an election for a new member shall be held as soon as is
			practicable in the constituency concerned.
			86.2 No election shall be held under this Article if the vacancy
			occurs within the 3 months immediately proceeding the
			date upon which the term of Parliament will expire.
			87. Elections to European Parliament, Assemblies and local
			authorities
			87. Act of Parliament made under Article 83 shall provide, in
			like terms to Articles 84 to 86 and Schedule 3, with
			necessary modifications, with respect to the constituencies,
			return of members and by-elections in connection with
			elections to the European Parliament, the Assemblies and
			local authorities.
			88. Electoral Commission
			88.1 There is established by this Constitution an Electoral Commission for the United Kingdom.
			88.2 The Electoral Commission consists of -
			. 1 the Speaker of the House of Commons (who shall chair
			the Commission);
			.2 the Speaker of the Second Chamber; and
			.3 not less than 5 and not more than 9 Ordinary Commissioners (one of whom shall be elected by the Commission to be Deputy Chairman).
			88.3 Ordinary Commissioners shall be appointed by the Head of
			State acting on the advice of the Public Services Commission.
			CONSTITUTION 77
			88.4 No person may be appointed an Ordinary Commissioner
			who is a member of, or a candidate for election to, either
			House of Parliament, the European Parliament, an Assembly or a local authority.
			88.5 An Ordinary Commissioner ceases to hold office -
			.1 at the expiry of 5 years from the date of appointment
			(which may be renewed); or
			.2 upon the Commissioner attaining the age of 65 years; or
			.3 on the receipt by the Chief Commissioner of the Public
			Services Commission of a letter of resignation from the
			Ordinary Commissioner; or
			.4 if the Commissioner is removed from office, upon
			grounds of misconduct or incapacity, by the Head of
			State on the advice of the Public Services Commission;
			or
			.5 if the Commissioner becomes a candidate for election to
			either House of Parliament, the European Parliament,
			an Assembly or a local authority.
			88.6 Ordinary Commissioners shall receive salaries, and office
			and administrative facilities, appropriate to the full-time
			performance of their responsibilities.
			89. Functions of Electoral Commission
			89.1 The Commission has the duty-
			.1 to keep under continuous review -
			. 1 the number of constituencies into which the United
			Kingdom is to be divided for the purposes of elections to the Houses of Parliament, the European
			Parliament, the Assemblies, and local authorities;
			.2 the boundaries of such constituencies;
			.3 the practice and working of political campaigning affecting elections in the United Kingdom, including
			matters of finance, broadcasting and advertising,
			and to submit reports thereon, with its recommendations, to Parliament at such intervals as Parliament shall
			determine;
			78 CONSTITUTION
			.2 to appoint a returning officer for each nation and region;
			.3 to consider any matter affecting the conduct of elections
			in the United Kingdom (including any matter affecting
			the franchise or candidatures) that -
			. 1 is refferyed to it by the Prime Minister or the Speaker
			of the House of Commons; or
			.2 the Commission on its own initiative determines,
			and to submit a report thereon, with any recommendations, to Parliament;
			.4 to receive, investigate and report to Parliament upon
			complaints in connection with the conduct of any election in the United Kingdom.
			89.2 The Commission has the power -
			. 1 to assist individual complainants in legal proceedings in
			relation to electoral malpractice;
			.2 to institute such legal proceedings on its own initiative,
			whether or not it has received a complaint.
			89.3 The Commission has the appropriate powers to require any
			person to provide information or documents which, in its
			opinion, appear likely to assist the Commission in the
			performance of its functions.
			90. Functions as to political parties
			90.1 The Commission shall maintain a register of political
			parties.
			90.2 .1 The Commission shall, from time to time, prepare regulations for the registration of political parties, which
			shall include provisions requiring -
			. 1 a political party applying for registration to provide
			a copy of its constitution and of its accounts;
			.2 every registered political party to submit annually a
			copy of its accounts to the Commission.
			.2 Such regulations shall have effect when approved by
			resolutions of both Houses of Parliament.
			90.3 The Commission shall submit an annual report to Parliament with respect to -
			CONSTITUTION 79
			.1 the income, expenditure and financial status of all
			registered political parties; and
			.2 such matters in connection with the registration of
			political parties as the Commission determines.
			91. Registration of Political Parties
			91.1 Every political party is entitled to register with the Electoral
			Commission, in accordance with the regulations made
			under Article 90.
			91.2 A registered political party is eligible for public financial
			support and entitled to access to political broadcasting to
			the extent that Act of Parliament provides.
			91.3 Act of Parliament may, notwithstanding Article 11, place
			such restrictions as are reasonable in a democratic society
			on election expenditure by candidates, political parties,
			whether registered or not, and other bodies.
			.
			CONSTITUTION 81
			CHAPTER 9
			THE JUDICIARY
			Part 1: The Judicial Power
			92. The judicial power
			92.1 Judicial power within the United Kingdom is vested in the
			courts in accordance with this Constitution.
			92.2 The courts are independent and subject only to this Constitution and the law.
			92.3 No court or tribunal shall be established to exercise judicial
			functions of a public nature in any part of the United
			Kingdom except as provided or authorised by this Constitution.
			93. Establishment of courts
			93.1 .1 There is established by this Constitution a Supreme
			Court for the United Kingdom, having the membership
			and jurisdiction set out in Part 2.
			.2 Further United Kingdom courts may be established
			under that Part.
			93.2 There are established by or under this Constitution -
			. 1 for England and Wales, the courts having the membership and jurisdiction set out in Part 1 of Schedule 4;
			.2 for Scotland, the courts having the membership and jurisdiction set out in Part 2 of Schedule 4;
			.3 for Northern Ireland, the courts having the membership
			and jurisdiction set out in Part 3 of Schedule 4.
			93.3 .1 The courts established under this Chapter have the jurisdiction which was exercised by the courts of England
			and Wales, Scotland and Northern Ireland immediately
			before the coming into force of this Constitution.
			.2 That jurisdiction shall, subject to this Part and Schedule
			4, be allocated between the courts by Act of Parliament.
			93.4 Act of Parliament shall provide concerning the respective
			territorial and extra-territorial jurisdiction of the courts in
			the different parts of the United Kingdom.
			82 CONSTITUTION
			94. Limitations on invalidating of legislation
			94.1 .1 No intermediate or inferior court may hold that any Act
			of Parliament or of an Assembly is wholly or partly void.
			.2 If any question as to the validity of an Act of Parliament
			or of an Assembly arises in the course of proceedings in
			an intermediate or inferior court, the court shall refer the
			question to a superior court, unless it is satisfied that
			there is no substance in the question.
			94.2 An appeal from any decision of a superior court holding an
			Act of Parliament wholly or partly void shall be taken
			directly to the Supreme Court.
			94.3 This Article does not apply to subordinate legislation.
			95. Full faith and credit
			95.1 Full faith and credit shall be given throughout the United
			Kingdom to -
			.1 the laws, acts and records of the Assemblies; and
			.2 the judicial proceedings of the courts of England and
			Wales, Scotland and Northern Ireland.
			95.2 Act of Parliament shall provide concerning the enforcement in one part of the United Kingdom of the judgements
			and orders of courts in another part of the United Kingdom
			or outside the United Kingdom.
			Part 2: The Supreme Court and Other United Kingdom Courts
			96. The Supreme Court
			96.1 The Supreme Court of the United Kingdom consists of the
			President and 10 other Justices or such greater number as
			may be prescribed by Act of Parliament.
			96.2 The Justices of the Supreme Court shall be selected from
			persons -
			. 1 who have served as judges of a superior court within the
			United Kingdom; or
			.2 who, in the opinion of the United Kingdom Judicial Appointments Commission, have shown outstanding dis-
			CONSTITUTION 83
			tinction in the practice or teaching of law in the United
			Kingdom.
			96.3 The Justices of the Supreme Court shall include (except for
			the duration of any vacancy) -
			.1 at least 5 persons who have served as judges of a
			superior court in England and Wales;
			.2 at least 2 persons who have served as judges of a
			superior court in Scotland;
			.3 at least 1 person who has served as a judge of a superior
			court in Northern Ireland.
			96.4 The President and the other Justices of the Supreme Court
			shall be appointed by the Head of State on the advice of the
			Prime Minister who shall select one of two names submitted by the United Kingdom Judicial Appointments Commission (subject to the right to invite the Commission to reconsider the submission).
			96.5 During any vacancy in the office of President or during the
			temporary incapacity of the President the functions of the
			President shall be discharged by the senior Justice of the
			Supreme Court willing to act.
			97. Composition
			97.1 .1 The Supreme Court may, if the President so directs, sit
			as a single body to hear an appeal which appears to the
			President to be of exceptional importance.
			.2 It shall otherwise sit in divisions containing not fewer
			than 3 members.
			97.2 .1 Where in the opinion of the President it is reasonably
			necessary to do so to ensure the proper dispatch of the
			business of the Supreme Court, the President may
			invite-
			.1 a former Justice of the Supreme Court who has
			ceased to hold office under Article 108.1.1 o r .1.2 or
			under Article 108.1.4 if no longer holding an inconsistent office;
			.2 with the approval of the United Kingdom Judicial
			Appointments Commission, any person eligible for
			appointment as a Justice of the Supreme Court;
			84 CONSTITUTION
			to sit as a member of a division of the Supreme Court for
			the purposes of any particular proceedings.
			.2 But a majority of the members of any division of the
			Supreme Court shall consist of persons currently holding office as Justices of the Supreme Court or acting
			under Article 108.6.
			98. Jurisdiction
			98.1 The Supreme Court has original and exclusive jurisdiction-
			. 1 in any proceedings brought by the Government of the
			United Kingdom seeking a ruling that any Assembly Act
			is wholly or partly invalid under this Constitution;
			.2 in any proceedings brought by the Executive of an
			Assembly seeking a ruling that any Act of Parliament is
			wholly or partly invalid under this Constitution.
			98.2 The Supreme Court has appellate jurisdiction in the following matters -
			.1 the interpretation and effect of this Constitution;
			.2 any dispute (other than under paragraph .1) in which
			nations or regions are opposing parties, or in which the
			United Kingdom and a nation or region are opposing
			parties;
			.3 any proceedings alleging a contravention of the Bill of
			Rights, contained in Chapter 2;
			.4 the validity, interpretation and effect of Acts of Parliament and subordinate legislation thereunder;
			.5 any proceedings giving rise to a question of law (including the interpretation of statutes) in relation to which
			uniformity throughout the United Kingdom or in more
			than one jurisdiction within the United Kingdom is, in
			the opinion of the Supreme Court, desirable;
			.6 the validity of any executive decision or act of the
			Government of the United Kingdom or of any public
			body exercising powers under this Constitution or an
			Act of Parliament;
			.7 the interpretation and effect of the laws of the European
			CONSTITUTION 85
			Community and any other international treaties giving
			rise to rights or obligations enforceable within the
			United Kingdom;
			. 8 matters within the jurisdiction of other courts and tribunals of the United Kingdom established under this Part.
			98.3 .1 There is a right of appeal to the Supreme Court, without
			leave, from any decision of a superior court in any part
			of the United Kingdom holding an Act of Parliament
			(but not subordinate legislation thereunder) wholly or
			partly void.
			.2 In any other matter in which the Supreme Court has
			appellate jurisdiction, Act of Parliament or Rules of
			Court may require that leave be given for all or any
			category of appeals.
			99. Additional jurisdiction
			99.1 .1 The Supreme Court may, on the invitation of the country
			or territory in question, exercise the jurisdiction in
			relation to appeals from countries or territories outside
			the United Kingdom which, immediately prior to the
			coming into force of this Constitution, was exercised by
			the Judicial Committee of the Privy Council.
			.2 For the purposes of proceedings under this Article, the
			powers of the President under Article 98.2 include
			power to invite any person who holds or has held office
			as a judge of the highest appellate court of any country
			or territory which has invited the Supreme Court to
			exercise jurisdiction, to sit as a member of a division of
			the Supreme Court.
			99.2 .1 The Supreme Court may exercise any further jurisdiction conferred upon it by Act of Parliament.
			.2 A Bill for such an Act shall not be presented to the Head
			of State for Assent, unless -
			.1 it has been approved by the resolutions of the
			Assemblies for Scotland and Northern Ireland; and
			.2 there is endorsed thereon a certificate of the Speaker
			to the House of Commons to that effect.
			86 CONSTITUTION
			100. Binding force of decisions
			100.1 Any decision of the Supreme Court (including a decision
			that it has jurisdiction to hear an appeal) is final and
			conclusive.
			100.2 Until overruled by a subsequent decision of the Supreme
			Court, a decision of the Supreme Court is binding on all
			other courts in the United Kingdom, except to the extent
			that a decision on the interpretation or effect of the laws of
			the European Community is inconsistent with a subsequent
			decision of the Court of Justice of the European Community.
			100.3 The Supreme Court is not bound by its own previous
			decisions.
			101. Other United Kingdom courts
			101.1 .1 Further courts and tribunals of the United Kingdom may
			be established by Act of Parliament to exercise -
			. 1 any specialised jurisdiction which may more appropriately be exercised within the United Kingdom as
			a whole than separately within its parts; or
			.2 any extra-territorial jurisdiction of the United Kingdom.
			.2 Courts and tribunals so established may be designated
			as superior, intermediate or inferior courts.
			101.2 Judges of courts and tribunals so established shall -
			. 1 be selected from persons who have such qualifications
			as Act of Parliament may prescribe; and
			.2 be appointed by the Minister of Justice, acting in accordance with the recommendation of the United Kingdom
			Judicial Appointments Commission.
			102. United Kingdom Judicial Appointments Commission
			102.1 There is established by this Constitution a United Kingdom
			Judicial Appointments Commission, which consists of -
			.1 10 representatives of the Judicial Services Commission
			CONSTITUTION 87
			for England and Wales (one of whom is the Chairman of
			the Welsh Appointments Committee established under
			Section 2 of Schedule 5);
			.2 4 representatives of the Judicial Services Commission
			for Scotland;
			.3 2 representatives of the Judicial Services Commission
			for Northern Ireland.
			102.2 The representatives of the Judicial Services Commissions
			shall be selected by, and serve on the Commission for the
			term of office fixed by, the Judicial Service Commission
			which they represent.
			Part 3: Judicial Services Commissions and Judicial Councils
			103. Judicial Services Commissions and Judicial Councils
			103.1 There are established by this Constitution a Judicial Services Commission and a Judicial Council for each of England and Wales, Scotland and Northern Ireland.
			103.2 .1 The membership and structure of the Judicial Services
			Commission, and the membership of the Judicial Council, for England and Wales are as set out in Schedule 5.
			.2 Act of Assembly shall make provision, in like form,
			with the necessary modifications, for the membership
			of the Judicial Services Commissions and Judicial
			Councils for Scotland and for Northern Ireland.
			104. Functions of Judicial Services Commissions
			104.1 The Judicial Services Commissions shall perform the functions with respect to the appointment of judges, and the
			authorising of judges to sit, set out in Sections 3 and 4,10
			and 11 or 16 and 17 of Schedule 4, as the case may be.
			104.2 The Judicial Services Commissions shall adopt procedures
			for the identification of candidates for judicial office which
			will ensure, so far as practicable, that adequate numbers of
			candidates of both sexes and from diverse racial, religious
			and social backgrounds are considered for appointment.
			88 CONSTITUTION
			104.3 .1 The Judicial Services Commissions shall establish procedures for considering complaints relating to legal proceedings and the capacity and conduct of judges of
			superior and intermediate courts.
			.2 Such procedures shall include powers -
			. 1 to refer to the Judicial Conduct Tribunal under Part
			4 any complaint where a prima facie case is shown
			of circumstances which, if proved, might justify removal of a judge from office;
			.2 where a complaint of judicial misconduct or failure
			in the execution of office does not justify reference
			to the Judicial Conduct Tribunal
			. 1 to investigate it; and
			.2 if found proved, to draw the finding to the
			attention of the judge;
			.3 to direct compensation out of public funds.
			.3 No complaint of the incorrectness of any judicial decision shall be considered.
			104.4 The Judicial Services Commissions shall make an annual
			report to Parliament or, in the case of Scotland and Northern
			Ireland, to the appropriate Assembly.
			104.5 Further functions may be conferred on a Judicial Services
			Commission by Act of Parliament or Assembly, as appropriate.
			105. Functions of Judicial Councils
			105. The Judicial Councils shall advise the Minister of Justice or
			the Executives for Scotland or Northern Ireland, as the case
			may be, on -
			. 1 policy concerning the administration of and provision
			of resources for court services; and
			.2 any other matter concerning the administration of justice on which the Minister of Justice or Executive
			requests advice or on which the Judicial Council thinks
			it appropriate to tender advice.
			Part 4: Judicial Independence and Conduct
			106. Application of Part 4
			106. This Part applies for the purpose of -
			. 1 securing the independence of the judiciary;
			.2 dealing with judicial incapacity or misconduct and
			allegations thereof.
			107. Protection of judicial salaries
			107.1 A judge’s salary shall not be reduced, and no adverse
			changes shall be made in other conditions of service during
			tenure of office.
			107.2 The salaries of judges of the Supreme Court, and other
			United Kingdom courts, and of superior and intermediate
			courts shall be charged on the Consolidated Fund.
			CONSTITUTION_________________________________________ 89
			108. Tenure of judicial office
			108.1 .1 A judge ceases to hold office -
			. 1 upon attaining the age of 70 years (or, in the case of
			judges of inferior courts, such lower age as Act of
			Parliament or of the competent Assembly may
			prescribe); or
			.2 upon receipt by the Prime Minister, Minister of
			Justice, or Chief Executive, as the case may be, of a
			letter of resignation from the judge; or
			.3 upon removal from office in accordance with this
			Part; or
			.4 upon acceptance of an office which is declared by
			this Constitution or Act of Parliament to be inconsistent with judicial office; or
			.5 in the case of a judge of an inferior court, upon the
			expiration of any fixed term for which the appointment was made without the appointment having
			been renewed.
			.2 A judge who attains the retiring age may continue to act
			in any proceedings the hearing of which had com­
			90 CONSTITUTION
			menced before attaining that age.
			108.2 Nojudgem ay be removed from office except on the ground
			of -
			. 1 physical or mental incapacity which is likely to be
			permanent or prolonged; or
			.2 serious judicial misconduct; or
			.3 failure in the due execution of office; or
			.4 having been placed, by personal conduct or otherwise, in a position incompatible with the due execution of office.
			108.3 No judge may be removed from office except by the
			procedure specified in this Part.
			108.4 .1 A judge of a superior or intermediate court who is
			appointed to hold office for a fixed term which is
			renewable is entitled to have the appointment renewed
			unless -
			. 1 the judge would attain the age of 70 before the expiry
			of the renewed term; or
			.2 the appropriate Judicial Services Commission or the
			United Kingdom Judicial Appointments Commission, as the case may be, directs that the appointment
			shall not be renewed.
			.2 The Commission making such a direction shall, upon
			being requested to do so, give reasons to the judge.
			109. Judicial Conduct Tribunals
			109.1 Judicial Conduct Tribunals shall be established by Act of
			Parliament for England and Wales and by Act of the
			competent Assembly for Scotland and for Northern Ireland.
			109.2 .1 Each Tribunal shall consist of -
			.1 a President (who shall be a judge of a superior court);
			.2 atleast2otherjudicialmembers(whoshall bejudges
			of a superior or intermediate court); and
			.3 at least 2 lay members.
			.2 For the purposes of this paragraph, the expression -
			CONSTITUTION 91
			“judge” does not include a part-time, temporary or unpaid
			judge;
			“lay” describes a person who has never qualified as a
			member of the legal profession or served as a judge (except
			as a part-time unpaid judge of an inferior court).
			109.3 .1 Judicial members of the Judicial Conduct Tribunal for
			England and Wales shall be selected by the Master of the
			Rolls and the Chief Justice of the High Court.
			.2 Judicial members of the Judicial Conduct Tribunal for
			Scotland shall be selected by the Lord President.
			.3 Judicial members of the Judicial Conduct Tribunal for
			Northern Ireland shall be selected by the Chief Justice of
			Northern Ireland.
			.4 Lay members shall be appointed by the respective
			Judicial Services Commissions.
			109.4 No member of a Judicial Services Commission may at the
			same time be a member of a Judicial Conduct Tribunal.
			110. Complaints relating to Justices of Supreme Court
			110.1 Any complaint relating to a Justice of the Supreme Court or
			any judge of another United Kingdom court shall -
			. 1 be made to the President of the Supreme Court (or, if the
			complaint relates to the President, to the senior of the
			other Justices); and
			.2 be referred to whichever of the Judicial Services Commissions the President or such other Justice thinks most
			appropriate.
			110.2 If that Judicial Services Commission decides that there are
			grounds for referring the complaint to a Judicial Conduct
			Tribunal, a Judicial Conduct Tribunal shall be constituted
			consisting of the President of each Tribunal and one judicial
			member and one lay member from each of the three
			ordinary Tribunals.
			111. Functions of Judicial Conduct Tribunals
			111.1 Judicial Conduct Tribunals-shall investigate, as the case
			may be -
			92 CONSTITUTION
			. 1 complaints relating to Justices of the Supreme Court or
			a judge of another United Kingdom court referred under
			Article 110; or
			.2 complaints relating to judges of superior or intermediate courts referred to them by the respective Judicial
			Services Commissions under Article 104.3.2; or
			.3 complaints relating to a Director of Public Prosecutions
			or a Director of Civil Proceedings.
			111.2 .1 A Judicial Conduct Tribunal shall, if it finds the complaint proved, recommend the removal of the judge
			from office.
			.2 But the Tribunal may, if it finds that there has been
			judicial misconduct or failure in the due execution of
			office but that such misconduct is not sufficiently serious to justify removal from office, instead draw the
			attention of the judge to the finding.
			111.3 .1 In the case of a Justice of the Supreme Court or a judge
			of another United Kingdom court, the Supreme Court
			has an original and exclusive jurisdiction to review the
			decision of the Judicial Conduct Tribunal under paragraph .2.
			.2 In other cases, a decision of a Judicial Conduct Tribunal
			under paragraph .2 is subject to judicial review but not
			to appeal.
			111.4 A Judicial Services Commission or the United Kingdom
			Judicial Appointments Commission may apply to the appropriate Judicial Conduct Tribunal for an order for the suspension of any judge (without loss of salary) against whom
			a complaint is pending, whether or not the complaint has
			been referred to the Tribunal.
			112. Procedure for removal of judges
			112.1 Where a Judicial Conduct Tribunal has recommended the
			removal from office of a Justice of the Supreme Court, a
			judge of another United Kingdom court or a judge of a
			superior court -
			.1 the Minister of Justice shall lay a resolution for the
			removal of the judge from office before Parliament; and
			CONSTITUTION 93
			.2 the resolution shall take effect upon being passed by
			both Houses of Parliament.
			112.2 Where a Judicial Conduct Tribunal has recommended the
			removal from office of a judge of an intermediate court, the
			Minister of Justice (in the case of England and Wales) or the
			appropriate Chief Executive (in the case of Scotland or
			Northern Ireland) shall implement the recommendation.
			112.3 .1 A judge of an inferior court may -
			.1 be removed from office on a ground specified in
			Article 108.2; and
			.2 be suspended pending the investigation of possible
			grounds for removal,
			by the Minister of Justice (in the case of England and
			Wales) or the appropriate Chief Executive (in the case of
			Scotland or Northern Ireland).
			.2 The Minister, or the Chief Executive, shall give reasons
			for any proposed removal from office and shall allow
			the judge to make representations.
			.3 The removal is subject to judicial review.
			112.4 .1 When a judge is removed from office on a ground other
			than incapacity, any pension rights in respect of the
			office may be removed or reduced.
			.2 In the case of a Justice of the Supreme Court, a judge of
			another United Kingdom court or a judge of a superior
			or intermediate court, such rights may be removed or
			reduced only if, and to the extent, recommended by the
			appropriate Judicial Conduct Tribunal.
			113. Judicial control of court business
			113. Distribution of court business and the allocation and listing
			of cases shall be undertaken in accordance with Rules of
			Court and shall be under the supervision, and subject to the
			directions, of designated judges, who shall be selected as
			the appropriate Judicial Council shall determine.

			CONSTITUTION 95
			CHAPTER 10
			THE PUBLIC SERVICES
			114. The Public Services
			114.1 There is established by this Constitution -
			. 1 a public service under the Government of the United
			Kingdom;
			.2 a public service under the Executive of each nation and
			region;
			.3 a public service under each local authority.
			114.2 .1 This Part provides with respect to appointments to, and
			tenure of office in, the public service under the Government.
			.2 Provision shall be made by the Public Services Commission, by regulation, for appointments to, and tenure
			of office in, the public services under the Executives and
			local authorities.
			114.3 .1 Every public service shall be politically neutral.
			.2 Appointment in every public service shall be on the
			basis of merit only.
			114.4 .1 Nothing in this Chapter prevents a Minister from appointing a person to the public service under the Government, as a personal adviser to the Minister.
			.2 Such person shall hold office during the Minister’s
			pleasure and on such terms as the Minister shall determine with the consent of the Public Services Commission.
			114.5 The first duty of each public service, and of every person
			appointed to a public service, is to the Constitution.
			114.6 Act of Parliament shall provide with respect to the procedures whereby executive agencies under the Government
			may be held accountable to Parliament.
			115. Public Services Commission
			115.1 There is established by this Constitution a Public Services
			Commission for the United Kingdom.
			96 CONSTITUTION
			115.2 The Public Services Commission consists of a Chief Commissioner and such number of other Commissioners (not
			being fewer than 12) as Act of Parliament shall prescribe.
			115.3 The Chief Commissioner and the Commissioners shall be
			appointed by the Head of State, on the recommendation of
			such Select Committee as the House of Commons shall
			designate for the purpose, which shall make its selection
			from nominations made by the Minister having responsibility for the public service.
			115.4 No person may be appointed as a Commissioner who is a
			member of, or candidate for election, to either House of
			Parliament, the European Parliament, an Assembly or a
			local authority.
			115.5 A Commissioner ceases to hold office -
			.1 at the expiry of 5 years from the date of appointment
			(which may be renewed); or
			.2 upon the Commissioner attaining the age of 65 years; or
			.3 on receipt by the Minister having responsibility for the
			public service of a letter of resignation from the Commissioner; or
			.4 if the Commissioner is removed from office by the Head
			of State, upon grounds of misconduct or incapacity,
			acting in accordance with a resolution of the House of
			Commons; or
			.5 if the Commissioner becomes a candidate for election to
			either House of Parliament, the European Parliament,
			an Assembly or a local authority.
			115.6 Commissioners shall receive salaries, and office and administrative facilities, appropriate to the full-time performance of their responsibilities.
			116. Functions of Public Services Commission
			116.1 The Public Services Commission has the duty -
			.1 to prepare, and from time to time amend, a Code of
			Professional Conduct for the public services;
			.2 to prepare, from time to time, regulations with respect
			to-
			CONSTITUTION 97
			. 1 the methods of recruitment to any public service;
			.2 the terms and conditions of employment or appoint
			ment in any public service;
			.3 the principles and procedures governing promotion
			and transfer within the public services;
			.4 vetting of officers in the public services for security
			purposes;
			.5 procedures for the discipline of officers in any public
			service;
			.6 procedures for the hearing and settlement of the
			grievances of officers in any public service; and
			.7 removal from office of officers in any public service.
			116.2 The Public Service Commission shall adopt procedures for
			the identification of candidates for appointment to any
			public service which will ensure, so far as practicable, that
			adequate numbers of candidates of both sexes and from
			diverse racial, religious and social backgrounds are considered for appointment.
			116.3 All public appointments, other than appointments to the
			public services, shall be made by the Head of State acting
			in accordance with the advice of the Public Services Commission.
			117. Public Services Complaints Commission
			117.1 .1 The Public Services Commission shall establish a Public
			Services Complaints Commission for the public services.
			.2 Act of Parliament shall provide with respect to appointments, tenure of office and conditions of office of
			members of the Public Services Complaints Commission.
			117.2 The Public Service Complaints Commission shall -
			.1 investigate complaints, including complaints by officers in a public service, concerning -
			. 1 breaches or failures to comply with the Code of Professional Conduct or of the regulations governing a
			public service;
			98 CONSTITUTION
			.2 malversation of a public service;
			.3 improper conduct towards an officer in a public
			service by a Minister, a member of an Executive or
			an elected member of a local authority; and
			.2 report its findings and any recommendations to the
			Public Services Commission and to Parliament
			117.3 No public servant shall suffer any detriment for disclosing
			information to the Public Services Complaints Commission for the purpose of protecting the Constitution or for
			making a complaint.
			/
			CONSTITUTION 99
			CHAPTER 11
			ADMINISTRATIVE JUSTICE
			118. Judicial review
			118.1 Act of Parliament shall provide for -
			. 1 judicial review of acts or omissions of persons or bodies
			in the performance of any public functions; and
			.2 a general duty upon public authorities to give reasons
			for their decisions;
			.3 effective remedies (including the payment of compensation) in cases where applications for judicial review
			are upheld.
			118.2 Application for judicial review may be made by any person
			having a sufficient interest in the matter to which the application relates.
			119. Commission for Public Administration
			119.1 There is established by this Constitution a Commission for
			Public Administration -
			. 1 the composition of which shall be determined by Act of
			Parliament; and
			.2 the members of which shall be appointed by Parliament
			or, with the consent of Parliament, by the Assemblies.
			119.2 The Commission shall act through such Commissioners for
			Administration, or divisions or committees, concerned
			with particular categories of public authorities or with
			public authorities in particular nations or regions, as Act of
			Parliament shall prescribe.
			119.3 The Commission has the duty-
			. 1 to investigate complaints from persons with sufficient
			interest in the matter, concerning failures of administration or unfair administration by public authorities;
			.2 to investigate, on its own initiative or at the request of a
			Minister or an Executive, acts or omissions, practices or
			patterns of conduct of public authorities that appear to
			constitute failures of administration or unfair admini­
			100 CONSTITUTION
			stration;
			.3 to keep under review the constitution and workings of
			tribunals and statutory inquiries, and connected administrative procedures;
			.4 to undertake research into, and to prepare and promulgate Codes of Conduct and other guidelines for, the
			promotion of standards of good administration with
			which public authorities may reasonably be expected to
			comply.
			119.4 All acts and omissions of public authorities, and all public
			authorities, are subject to investigation under this Article,
			unless Parliament provides otherwise.
			119.5 Act of Parliament shall provide -
			. 1 for effective redress (including the payment of compensation) for persons whom the Commission finds to have
			been adversely affected by failure of administration or
			unfair administration; and
			.2 with respect to the powers and procedures of the Commission.
			119.6 The Commission shall report, as appropriate, to Parliament, Assemblies or local authorities its findings in relation
			to its investigations and its recommendations for consequential reforms.
			119.7 The Commission shall submit an annual report to Parliament and to the Assemblies, which may include recommendations for improvements in any aspect of administrative
			justice.
			120. Complaints procedures
			120. Every public authority having dealings with the public shall
			establish a procedure for the receipt and investigation of
			complaints by members of the public concerning any such
			dealing and for redress where the complaint is upheld.
			CONSTITUTION 101
			CHAPTER 12
			PROTECTION OF THE UNITED KINGDOM
			121. The Armed Forces
			121.1 .1 Acts of Parliament shall provide for, and regulate, the
			Armed Forces of the United Kingdom, comprising the
			Royal Navy, the British Army and the Royal Air Force,
			together with the Territorial and Reserve Forces.
			.2 Each such Act shall expire at the end of the fifth year
			following its enactment.
			.3 Expenditure with respect to the Armed Forces shall be
			authorised by annual Appropriation Act.
			121.2 .1 There is established by this Constitution a Defence
			Council, consisting of the Minister having responsibility for defence (who shall chair the Council) and such
			other Ministers, officers in the public services or in the
			Armed Forces as Act of Parliament shall prescribe.
			.2 Act of Parliament shall provide with respect to appointments, tenure of office and conditions of office of
			members of the Council.
			122. Declaration of war
			122.1 Declarations of a State of War and declarations of a State of
			Peace shall be made by the Head of State by Order in
			Council.
			122.2 No such Order in Council shall be made unless a draft of the
			Order has been approved, by resolution, by a two-thirds
			majority of those voting in each House of Parliament.
			123. Deployment of Armed Forces
			123.1 The deployment of the Armed Forces during and in pursuit
			of a State of War is the responsibility of the Minister having
			responsibility for defence, acting in consultation with the
			Defence Council and subject to the general direction of the
			Cabinet, and in such manner as Act of Parliament may prescribe.
			123.2 Act of Parliament shall regulate the deployment of the
			Armed Forces in support of the civil authorities and for the
			102 CONSTITUTION
			maintenance of national security or civil order.
			123.3 Act of Parliament shall regulate the deployment of the
			Armed Forces in support of the civil authorities for -
			. 1 the maintenance of essential supplies to preserve life
			and livelihood in a civil emergency;
			.2 the undertaking of necessary work of urgent national
			importance.
			123.4 Act of Parliament shall regulate the deployment of the
			Armed Forces in support of the civil community for the
			alleviation of distress and for connected purposes arising
			out of natural or other disaster.
			123.5 .1 The Minister responsible for national security and civil
			order may, by order, direct deployment of the Armed
			Forces under paragraphs .2, .3 or .4 but no such order
			may be made unless a draft of the order has been
			approved by each House of Parliament.
			.2 The draft of any such order shall be accompanied by a
			certificate signed by at least two-thirds of the members,
			or, in the case in paragraph .4, four of the members, of
			the Defence Council stating their assent to such deployment of the Armed Forces.
			.3 The order expires at the end of 14 days after it is made,
			but it may be renewed in the manner provided in this
			paragraph.
			123.6 Any executive action taken under this Article or under an
			Act of Parliament made thereunder is subject to judicial
			review.
			123.7 Nothing in this Article prevents the taking of any measures
			which may be necessary for the purposes of defence against
			attack by armed force.
			124. Visiting forces
			124.1 No armed forces of any country outside the United Kingdom, nor any weapons or equipment for the use of such
			forces, shall be -
			.1 based in the United Kingdom, the other British Islands
			or a dependent territory, or their territorial waters; or
			CONSTITUTION 103
			.2 used from the landspace, airspace or territorial waters of
			the United Kingdom, the other British Islands or a dependent territory,
			without the prior consent of Parliament.
			124.2 Act of Parliament shall provide with respect to the armed
			forces of a country outside the United Kingdom visiting the
			United Kingdom, the other British Islands or dependent territories, including the status, powers and responsibilities of
			those forces.
			125. Police
			125. Act of Parliament or, in the case of Scotland and Northern
			Ireland, Act of Assembly shall provide -
			. 1 for the establishment, organisation, governance and financing of such number of police forces, serving such
			areas, as the Act shall prescribe;
			.2 for the selection, appointment and conditions of service
			of police officers and, in particular, procedures for the
			identification of candidates which will ensure, so far as
			practicable, that adequate numbers of candidates of both
			sexes and from diverse racial, religious and social
			backgrounds are considered for appointment;
			.3 for procedures for the discipline of police officers;
			.4 for procedures whereby each police force can be held
			accountable with respect to the performance of its functions to such body of persons holding elected membership of Parliament, an Assembly or local authority as the
			Act shall prescribe;
			.5 for the establishment of independent bodies with the
			duty of investigating, both on their own initiative and on
			complaints, acts, omissions and practices in connection
			with the performance of their functions by police officers or police authorities;
			.6 for effective redress (including the payment of compensation) for persons adversely affected by the defective
			performance of such functions.
			104 CONSTITUTION
			126. National security
			126.1 For the purposes of this Constitution, the expression “national security” means -
			.1 the protection of the territorial integrity of the United
			Kingdom and the safety of its citizens; and
			.2 the maintenance of the system of government established by this Constitution and of the rights and privileges guaranteed by this Constitution
			against -
			.1 espionage, sabotage or subversion by deceptive or
			clandestine methods to undermine that system of
			government; or
			.2 the use of violence in pursuit of political ends, or
			against or between members of any group defined by
			the race, ethnicity, national origins or religious
			beliefs of its members.
			126.2 .1 No public authority shall be established for the purpose
			of national security, except as prescribed by Act of Parliament.
			.2 No person may undertake activities for the purpose of
			national security except as an officer, agent or employee
			of such a security service.
			126.3 .1 The provisions of this Constitution with respect to
			officers of the public service under the Government
			apply to the officers of any statutory security service.
			.2 But the Public Services Commission may make such
			special arrangements with regard to the officers of such
			a security service as may be necessary for the effective
			performance of its functions.
			126.4 .1 The Prime Minister shall establish a National Security
			Committee of the Cabinet to exercise a general direction
			over the activities of all statutory security services.
			.2 The Prime Minister -
			. 1 is entitled to have access to all information and all
			records relating to the activities of any statutory
			security service; and
			CONSTITUTION 105
			.2 is responsible to Parliament for their proper and
			lawful performance of their functions.
			126.5 .1 The Prime Minister shall submit an annual report to
			Parliament concerning the activities of all statutory
			security services.
			.2 There may be excluded from the report any matter, the
			publication of which the National Security Committee,
			after consultation with the Inspector-General of Security Services, considers to be prejudicial to the proper
			performance of the functions of any such service.
			127. Inspector-General of Security Services
			127.1 .1 There is established by this Constitution the office of
			Inspector-General of Security Services.
			.2 The Inspector-General shall be appointed by the Head
			of State on the advice of the Prime Minister, who shall
			select from nominations made by the Public Services
			Commission.
			127.2 The Inspector-General has the duty, in relation to the
			statutory security services -
			.1 to monitor compliance by them with their operational
			policies;
			.2 to review their operational activities;
			.3 to keep under review applications by them for, and the
			issue and execution of, warrants authorising entry upon
			or interference with property;
			.4 to investigate complaints concerning any of their activities that appear to be unlawful, unauthorised, unreasonable or unnecessary;
			.5 to investigate, on the Inspector-General’s own initiative
			or at the request of the Prime Minister, any of their acts,
			omissions, policies or patterns of conduct that appear to
			be inconsistent with their operational policies or to constitute the improper performance of their functions;
			.6 to make consequential recommendations to the National Security Committee, including recommendations
			for redress for persons whom the Inspector-General
			106 CONSTITUTION
			finds, in an investigation under this Article, to have been
			adversely affected.
			127.3 The Inspector-General is entitled to have access to such
			information under the control of a statutory security service, and to request and receive such explanations from the
			security service, its officers, agents or employees, as the
			Inspector-General considers necessary for the performance
			of the duties of the office.
			127.4 .1 The Inspector-General shall-
			. 1 report, as frequently as circumstances require, to the
			National Security Committee on the performance of
			the duties, and the findings of investigations, under
			this Article; and
			.2 submit an annual report to such Select Committee as
			the House of Commons shall determine.
			.2 There may be excluded from any such report, and from
			any other evidence from the Inspector-General to the
			Select Committee, any matter, the publication of which
			the National Security Committee, after consultation
			with the Inspector-General, considers to be prejudicial
			to the proper performance of the functions of any statutory security service.
			127.5 The Inspector-General shall receive a salary, and office and
			administrative facilities, appropriate to the full-time performance of the responsibilities of the office.
			128. Suspension of the Constitution
			128.1 Where, in the opinion of the Prime Minister, in the United
			Kingdom or any part of the United Kingdom -
			. 1 a grave threat to national security or public order has
			arisen or is likely to arise; or
			.2 a grave civil emergency has arisen or is likely to arise,
			the Head of State may, by Order in Council, make provision, to the extent strictly required by the exigencies of the
			situation and reasonably justified in a democratic society,
			suspending, in whole or in part, absolutely or subject to
			conditions, any of the provisions of this Constitution set out
			in paragraph .2.
			CONSTITUTION 107
			128.2 Subject to paragraph .3, the following provisions may be
			suspended under this Article -
			. 1 the provisions of the Bill of Rights contained in Division
			1 of Chapter 2;
			.2 Article 29.3, with respect to the communication of
			information to public authorities;
			.3 Articles 60.1 and 78.4, with respect to the duration of
			Parliament and the Assemblies, and Part 3 of Schedule
			3, with respect to the electoral cycle;
			.4 the provisions of an Act made under Article 70 in so far
			as it affects any provision of the Bill of Rights or relates
			to the civic rights of non-nationals under Article 33.
			128.3 The following provisions may not be suspended under this
			A rticle-
			.1 Article 2 (Right to life), except in respect of deaths
			resulting from lawful acts of war,
			.2 Article 3 (Freedom from torture);
			.3 Article 4.1 (Freedom from slavery);
			.4 Article 5.6 (Treatment of persons in detention);
			.5 Article 6.2 to 6.6 (Right to fair hearing in criminal
			cases);
			.6 Article 7 (Prohibition of retrospective offences);
			.7 Article 9 (Freedom of thought);
			.8 Article 19.1 (Equality).
			128.4 Unless the urgency of the situation makes it impracticable
			to do so, an Order in Council under this Article shall not be
			made, unless a draft of the Order has been approved, by
			resolution, by a two-thirds majority of those voting in each
			House of Parliament.
			128.5 An Order in Council that has been made without having
			been approved in draft under paragraph .4 ceases to have
			effect unless, within 14 days after it is made, it is confirmed,
			by resolution, by a two-thirds majority of those voting in
			each House of Parliament.
			128.6 The validity of an Order in Council made under this Article
			108 CONSTITUTION
			may be challenged in proceedings for judicial review.
			128.7 .1 An Order in Council made under this Article has effect
			only for such time as shall be specified in the Order.
			.2 The duration of the Order may be extended, by resolution, by a two-thirds majority of those voting in each
			House of Parliament, if, and to the extent that, the
			making of a new Order in Council would be justified
			under this Article.
			129. Detention in emergencies
			129.1 Where a person is detained under an Order in Council made
			under Article 128 —
			. 1 the person shall, as soon as reasonably practicable and
			not more than 7 days after commencement of the detention, be provided with a statement in writing, in a
			language that the person understands, specifying in
			detail the grounds of the detention;
			.2 not more than 7 days after the commencement of the
			detention, a notification shall be published in newspapers having general circulation in the United Kingdom
			stating that the person has been detained and the particulars of the provision of law under which the detention is
			authorised;
			.3 not more than 3 weeks after the commencement of the
			detention and thereafter during the detention at intervals
			of not more than 6 months, the detention shall be
			reviewed by an independent and impartial tribunal, the
			members of which shall be appointed by the appropriate
			Judicial Services Commission;
			.4 the person shall be afforded reasonable facilities to
			consult a representative of his or her choosing and to
			appear, in person or through such a representative,
			before the tribunal.
			129.2 .1 The tribunal reviewing a detention under this Article
			may make recommendations concerning the necessity
			or expediency of continuing the detention, which shall
			be communicated to the detainee.
			.2 Unless Act of Parliament or the Order in Council other-
			CONSTITUTION 109
			wise provides, the authority by which the detention was
			ordered, after consideration of the recommendations, is
			not obliged to act in accordance with them.

			SCHEDULES
			SCHEDULE 1
			THE AREAS OF THE ASSEMBLIES
			CONSTITUTION________________________________________ 111
			1. Scotland
			2. Wales
			3. Northern Ireland
			4. Northern: Northumberland, Cleveland, Tyne and Wear,
			Durham
			5. North West: Lancashire, Merseyside, Greater Manchester,
			Cheshire and Cumbria
			6. Yorkshire: South, North and West Yorkshire and North
			Humberside
			7. West Midlands: West Midlands, Shropshire, Hereford and
			Worcester, Staffordshire and Warwickshire
			8. East Midlands: Nottinghamshire, Lincolnshire, Derbyshire
			Leicestershire and South Humberside.
			9. Central: Bedfordshire, B uckinghamshire, Hertfordshire
			and Northamptonshire
			10. East Anglia: Norfolk, Suffolk, Essex and Cambridgeshire
			11. London
			12. South East: East and West Sussex and Kent
			13. South Central: Berkshire, Hampshire, Isle of Wight, Surrey
			and Oxfordshire
			14. Wessex: Gloucestershire, Somerset, Avon, Dorset and
			Wiltshire
			15. South West: Cornwall and Devon
			112 CONSTITUTION
			SCHEDULE 2
			CALCULATION OF REVENUE SHARING
			Calculation of Revenue Sharing
			1. The personal income tax shall be a United Kingdom tax with a
			common definition of taxable income and common rates and allowances set annually by Act of Parliament and administered by a
			United Kingdom Board of Inland Revenue.
			2. There shall be allocated to the Assembly for each nation or region
			the estimated product of the personal income tax accruing to the
			residents of that nation or region.
			3. . 1 For the first financial year after the coming into force of this
			Constitution, the Chancellor of the Exchequer shall calculate
			for the United Kingdom an average per capita expenditure in
			relation to the functions to be performed by the Assemblies
			and their Executives.
			.2 In each following year, that calculation of expenditure -
			. 1 shall be adjusted by reference to the growth of the Gross
			Domestic Product;
			.2 shall not be adjusted to reflect changes in the actual expenditure of the Assemblies and their Executives.
			4. . 1 The average per capita expenditure for the United Kingdom
			shall be multiplied by the population of each nation or region
			to derive the expected expenditure in respect of that nation or
			region.
			.2 The expected expenditure for each nation or region shall be
			compared with the allocation under paragraph 2.
			5. .1 Any nation or region whose allocation exceeds its expected
			expenditure shall have the surplus deducted from that allocation.
			.2 Any nation or region whose allocation falls short of its
			expected expenditure shall receive an additional allocation
			equivalent to the short-fall.
			7. Act of Assembly may vary the rate of income tax levied within the
			nation or region by 1 or 2 or 3 pence in the pound below or above
			the standard rate set by Act of Parliament.
			CONSTITUTION 113
			8. .1 Where an Act of an Assembly reduces the standard rate of
			income tax, its allocation shall be reduced by an amount
			equal to the revenue lost in consequence of the reduction.
			.2 Where an Act of an Assembly increases the standard rate of
			income tax, its allocation shall be increased by an amount
			equal to the revenue raised in consequence of the increase.
			114 CONSTITUTION
			SCHEDULE 3
			ELECTIONS
			Part 1: Parliamentary Constituencies
			1. The House of Commons
			1. The Electoral Commission shall determine a common electoral quota for the whole of the United Kingdom by dividing the total electorate of the United Kingdom by the
			number of seats in the House of Commons as fixed for the
			time being by Act of Parliament.
			2. The number of seats in the House of Commons for each
			nation and region shall be determined by -
			.1 dividing the electorates of Scotland, Wales, Northern
			Ireland and each of the regions of England by the com ­
			mon electoral quota; and
			.2 allocating to Scotland, Wales, Northern Ireland and each
			of the regions of England that number of the total number
			of the seats in the House of Commons that is in direct
			proportion to the product of the relevant division.
			3. The number of constituencies shall be equivalent to half the
			total number of seats in the House of Commons as fixed for
			the time being by Act of Parliament.
			4. In making its recommendations with respect to boundaries
			of House of Commons constituencies, the Electoral Commission shall -
			.1 as far as possible, have regard to the boundaries of local
			authorities;
			.2 ensure that no boundary of any House of Commons constituency crosses a boundary of a nation or region; and
			.3 subject to those considerations and the factors of distance
			and density of population, ensure that the electorate of
			each House of Commons constituency is as near as
			practicable equivalent to that of every other such constituency.
			CONSTITUTION 115
			5. The recommendations of the Electoral Commission with
			respect to boundaries of House of Commons constituencies-
			. 1 shall be laid before the House of Commons by its
			Speaker; and
			.2 shall not take effect until approved by resolution of the
			House.
			2. Second Chamber
			6. The Electoral Commission shall determine a common electoral quota for the whole of the United Kingdom by dividing
			the total electorate of the United Kingdom by the number of
			seats in the Second Chamber as fixed for the time being by
			Act of Parliament.
			7. The number of seats in the Second Chamber for each nation
			and region shall be determined by -
			. 1 dividing the electorates of Scotland, Wales, Northern
			Ireland and each of the regions of England by the
			common electoral quota; and
			.2 allocating to Scotland, Wales, Northern Ireland and
			each of the regions of England that number of the total
			number of the seats in the Second Chamber that is in
			direct proportion to the product of the relevant division.
			8. In making its recommendations with respect to the number
			of constituencies, and their boundaries, in respect of the seats
			in the Second Chamber allocated to each nation or region, the
			Electoral Commission shall ensure that -
			. 1 no boundary of any constituency crosses a boundary of
			a nation or region; and
			.2 subject to that consideration and the factors of distance
			and density of population, the electorate of each Second
			Chamber constituency in a nation or region is as near as
			practicable equivalent to that of every other such constituency in that nation or region;
			.3 the number of seats in each Second Chamber constituency is within the limits set by Article 85.2.
			116 CONSTITUTION
			9. Nothing in this Part prevents the constitution of a nation or
			a region as a single constituency.
			10. The recommendations of the Electoral Commission with
			respect to the numbers and boundaries of Second Chamber
			constituencies -
			. 1 shall be laid before the Second Chamber by its Speaker;
			and
			.2 shall not take effect until approved by resolution of the
			House.
			Part 2: Election of Members of Parliament
			1. The House of Commons
			1. At each general election, and in any by-election, for the
			House of Commons, the candidate who has secured the
			largest number of votes in a constituency shall be declared
			elected.
			2. As soon as practicable after the declaration of the final
			results of a general election for the House of Commons, the
			returning officer for each nation or region shall -
			. 1 compare the votes cast for each political party contesting the election in that nation or region with the number
			of seats won in the House by that party; and
			.2 declare the number of additional members in the House
			for each political party, in order that the proportion of the
			seats held by that party in the House in respect of that
			nation or region corresponds as closely as possible to the
			proportion that the votes cast for that party in the nation
			or region bear to the total votes cast there.
			3. No additional member of the House of Commons in respect
			of any nation or region shall be declared for any political
			party for which the number of votes cast in that nation or
			region in respect of that House is less than 5 per cent of the
			total of all such votes.
			4. The additional members for the House of Commons in
			respect of a nation or region shall be determined as Act of Parliament shall prescribe.
			CONSTITUTION 117
			2. Second Chamber
			5. At each general election, and in any by-election, for the
			Second Chamber, the candidate who receives the necessary
			quota of votes under a system of single transferable voting
			shall be declared elected.
			6. A system of single transferable voting is one in which each
			vote -
			. 1 is capable of being given so as to indicate the voter’s
			order of preference for the candidates for election for the
			constituency; and
			.2 is capable of being transferred to the next choice -
			.1 when the vote is not required to give a prior choice
			the necessary quota of votes; or
			.2 when, owing to the deficiency in the number of votes
			given for a prior choice, that choice is eliminated
			from the list of candidates.
			7. Act of Parliament shall prescribe the method of voting, and
			the method of counting and transferring votes, and different
			provision may be made in those respects in relation to general
			elections and by-elections.
			Part 3: The Electoral Cycle
			1. . 1 A general election for both Houses of Parliament shall be
			held on the first Thursday following 1 October 199-,
			.2 Notwithstanding Article 60.1, the term of the first Second
			Chamber is 2 years, and accordingly a general election for the
			Second Chamber shall be held on the first Thursday following 1 October [199- + 2].
			.3 Subsequent general elections shall be held, in respect of each
			House, on the first Thursday following 1 October in the
			fourth year following that in which the previous general election was held.
			.4 In the case of a dissolution of the House of Commons, a
			general election of members of the House shall be held
			within 3 months following the Proclamation made under
			Article 60.5.1.
			118 CONSTITUTION
			2. Elections for the Assemblies shall be held on the first Thursday
			following 1 October in [199- + 1] and thereafter in the fourth year
			following that in which the previous elections were held.
			3. Elections for local authorities shall be held on the first Thursday
			following October 1 in [199- + 3], and thereafter in the fourth year
			following that in which the previous local authority elections were
			held.
			CONSTITUTION 119
			SCHEDULE 4
			NATIONAL COURTS
			Part 1: Courts in England and Wales
			1. Courts in England and Wales
			1.1 The courts for England and Wales are -
			. 1 a Court of Appeal (which is a superior court);
			.2 a High Court for civil and public proceedings (which is
			a superior court);
			.3 a Crown Court for criminal proceedings (which is a superior court);
			.4 such other courts and tribunals, as may be established by
			Act of Parliament (which may be designated either as
			intermediate or inferior courts).
			1.2 The Court of Appeal consists of -
			. 1 the Master of the Rolls; and
			.2 such number of other Justices (not being fewer than 20)
			as Act of Parliament may prescribe.
			1.3 The High Court consists of the Chief Justice and such
			number of other Justices (not being fewer than 50) as Act of
			Parliament may prescribe.
			1.4 .1 The Crown Court consists of the Justices of the High
			Court and such number of other judges as may be
			prescribed by Act of Parliament.
			.2 Notwithstanding the status of the Crown Court as a
			superior court, judges of the Crown Court (other than
			Justices of the High Court) shall not be treated for the
			purposes of this Constitution as judges of a superior
			court.
			1.5 Except for the duration of any vacancy -
			. 1 the Justices of the Court of Appeal shall include at least
			2 persons; and
			.2 the Justices of the High Court shall include at least four
			persons,
			who have been judges of intermediate courts in Wales or
			have substantial experience of legal practice in Wales.
			120 CONSTITUTION
			1.6 The number and title of judges of intermediate and inferior
			courts shall be such as Act of Parliament may prescribe.
			2. Judicial Qualifications
			2.1 .1 Judges of superior and intermediate courts shall be
			selected from -
			. 1 persons who have rights of audience in the courts to
			which they are to be appointed; or
			.2 in the case of judges of a superior court, persons who
			have served as judges of another superior court or of
			an intermediate court; or
			.3 in the case of judges of an intermediate court,
			persons who have served as judges of another
			intermediate court or an inferior court and who have
			such further qualifications (if any) as may be prescribed by Act of Parliament.
			.2 Nothing in this Section prevents the appointment of lay
			members of a court of specialised jurisdiction to sit with
			a presiding judge qualified under this Section.
			2.2 Judges of inferior courts shall be selected from persons who
			have such qualifications as may be prescribed by Act of Parliament.
			3. Appointment of judges
			3.1 .1 The Master of the Rolls, the Chief Justice of the High
			Court and the other Justices of the superior courts in
			England and Wales shall be appointed by the Minister of
			Justice.
			.2 The Minister of Justice shall make the appointment to fill
			any vacancy by selecting one out of two persons whose
			names shall be submitted for consideration by the Judicial Services Commission (subject to the right to invite
			the Commission to reconsider the submission).
			3.2 Subject to this Section, judges of intermediate and inferior
			courts shall be appointed by the Minister of Justice, acting
			in accordance with the recommendation of the Judicial
			Services Commission.
			CONSTITUTION 121
			3.3 .1 Judges of intermediate or inferior courts who are appointed to sit in districts wholly within Wales shall be
			appointed by the Minister of Justice, acting in accordance with the recommendation of the Welsh Appointments Committee.
			.2 Judges of inferior courts who are appointed to sit in
			districts wholly within a region of England shall be
			appointed by the Minister of Justice, acting in accordance with the recommendation of the Regional Appointments Committee for that region.
			4. Supplementary appointments
			4.1 .1 The Judicial Services Commission may authorise-
			. 1 a judge of any court to sit as a judge of a court of equal
			or lesser jurisdiction;
			.2 any person who is eligible for appointment as a judge
			of any court or who is a retired judge of any court to
			sit as a temporary judge of that court;
			.3 any person who is eligible for appointment as a judge
			of any court to sit as a part-time judge of that court.
			.2 But at least half the members of any division of the Court
			of Appeal shall consist of persons currently holding
			office as Justices of the Court of Appeal or permitted by
			this Constitution to act after attaining retiring age.
			.3 Authorisation under this Section may be given by general rules and may be delegated to such persons as
			appear to the Judicial Services Commission to be appropriate.
			4.2 .1 Assistant judges of any court may be appointed for the
			purpose of dealing with interlocutory, uncontested or
			other subsidiary matters.
			.2 For the purposes of appointment and tenure, assistant
			judges of a superior court shall be treated as judges of an
			intermediate court and assistant judges of an intermediate court shall be treated as judges of an inferior court.
			122 CONSTITUTION
			5. Jurisdiction of Court of Appeal
			5.1 The Court of Appeal is the highest appellate court in
			England and Wales.
			5.2 The Court has jurisdiction to hear appeals from any decision of the High Court or the Crown Court or an intermediate or inferior court, subject to -
			.1 Article 94.2;
			.2 the giving of leave to appeal, where required by Act of
			Parliament or Rules of Court;
			.3 any Act of Parliament excluding or limiting rights of
			appeal in any class of proceedings;
			.4 in the case of appeals from an inferior court, any
			intermediate appeal procedures which may be established by Act of Parliament.
			6. Constitutional jurisdiction of High Court
			6.1 Any reference made in England and Wales under Article
			94.1 shall be made to the High Court
			6.2 There is a right of appeal to the Court of Appeal without
			leave from any decision of the High Court, or of a Crown
			C ourt that an Assembly Act is wholly or partly void.
			6.3 Any proceedings in which -
			.1 the plaintiff, applicant or accused claims that there has
			been a contravention of the Bill of Rights, contained in
			Chapter 2; or
			.2 the plaintiff, applicant or accused challenges the validity o f -
			.1 any subordinate legislation made under an Act of
			Parliament or of an Assembly; or
			.2 any executive decision of the Government of the
			United Kingdom or of the Executive for Wales or for
			a region or of any body exercising powers under this
			Constitution; or
			.3 a substantial issue as to the interpretation of this Constitution arises,
			CONSTITUTION 123
			may be commenced in the High Court, without prejudice to the exercise of any power of the High Court to
			transfer such proceedings to another court.
			6.4 In -
			. 1 any such proceedings as are mentioned in subsection .3;
			or
			.2 any proceedings in which a claim that an Act of Parliament or of an Assembly is wholly or partly void has been
			dismissed,
			no restriction may be placed on any right of appeal to the
			Court of Appeal unless the claim or challenge is frivolous,
			vexatious or an abuse of the process of the court.
			7. Sittings of High Court and Crown Court
			7. Provision shall be made for regular sittings of the High
			Court and the Crown Court at one or more places in Wales
			and in each region.
			8. Rules Committee
			8. There shall be Rules Committees, the membership of which
			shall be prescribed by Act of Parliament, which shall make,
			amend and keep under review Rules of Court for practice
			and procedure.
			Part 2: Courts in Scotland
			9. Courts in Scotland
			9.1 The courts for Scotland are -
			.1 a Court of Session, comprising an Inner House and an
			Outer House (which is a superior court);
			.2 a High Court of Justice (which is a superior court);
			.3 Sheriff’s courts (which are intermediate courts);
			.4 District courts (which are intermediate courts);
			.5 such other courts and tribunals as may be established by
			Act of the Assembly for Scotland (which may be designated either as intermediate or inferior courts).
			124 CONSTITUTION
			9.2 The Court of Session consists of -
			.1 the Lord President (who shall preside over the First
			Division of the Inner House);
			.2 the Lord Justice Clerk (who shall preside over the
			Second Division of the Inner House); and
			.3 such number of other judges (who shall compose the
			Outer House) as Act of the Assembly for Scotland may
			prescribe.
			9.3 The High Court of Justice consists of the Lord President, as
			Lord Justice General, and the other judges of the Court of
			Session
			9.4 The number and title of judges of intermediate and inferior
			courts shall be such as may be prescribed by Act of the
			Assembly for Scotland.
			10. Qualifications and appointment of judges
			10.1 Judges shall be selected from persons who have such qualifications as may be prescribed by Act of the Assembly for
			Scotland.
			10.2 Judges shall be appointed by the Chief Executive for Scotland, acting in accordance with the recommendation of the
			Judicial Services Commission for Scotland.
			11. Supplementary appointments
			11.1 The Judicial Services Commission for Scotland may authorise -
			. 1 a judge of any court to sit as a judge of a court of equal
			jurisdiction;
			.2 any person who is eligible for appointment as a judge of
			any court or who is a retired judge of any court to sit as
			a temporary judge of that court.
			11.2 Authorisation under this Section may be given by general
			rules or delegated to such persons as appear to the Judicial
			Services Commission for Scotland to be appropriate.
			CONSTITUTION 125
			12. Constitutional proceedings
			12.1 Any proceedings in which -
			.1 the pursuer, applicant or accused claims that there has
			been a contravention of the Bill of Rights, contained in
			Chapter 2; or
			.2 the pursuer, applicant or accused challenges the validity
			of -
			.1 any subordinate legislation made under an Act of
			Parliament or of the Assembly; or
			.2 any executive decision of the Government of the
			United Kingdom or of the Executive for Scotland or
			of any body exercising powers under this Constitution; or
			.3 a substantial issue as to the interpretation of this Constitution arises,
			may be commenced in the Court of Session or High Court
			without prejudice to the exercise of any power of that court
			to transfer such proceedings to another court.
			12.2 In -
			. 1 any such proceedings as are mentioned in subsection. 1;
			or
			.2 any proceedings in which a claim that an Act of Parliament or of the Assembly is wholly or partly void has
			been dismissed,
			no restriction may be placed on any right of appeal to the
			Inner House unless the claim or challenge is frivolous,
			vexatious or an abuse of the process of the court
			13. Rules Committees
			13. There shall be Rules Committees, the membership of which
			shall be prescribed by Act of the Assembly for Scotland,
			which shall make, amend and keep under review Rules of
			Court for practice and procedure.
			126 CONSTITUTION
			Part 3: Courts in Northern Ireland
			14. Courts in Northern Ireland
			14.1 The courts for Northern Ireland are -
			. 1 a Court of Appeal (which is a superior court);
			.2 a High Court for civil and public proceedings (which is
			a superior court);
			.3 a Crown Court for criminal proceedings (which is a
			superior court);
			.4 such other courts and tribunals as may be established by
			Act of the Assembly forNorthem Ireland (which may be
			designated either as intermediate or inferior courts).
			14.2 The Court of Appeal consists of -
			. 1 the Chief Justice of Northern Ireland; and
			.2 such number of other Justices (not being fewer than 3)
			as may be prescribed by Act of the Assembly for
			Northern Ireland.
			14.3 The High Court consists of the Chief Justice of Northern
			Ireland and such number of other Justices (not being fewer
			than 6) as Act of the Assembly for Northern Ireland may
			prescribe.
			14.4 .1 The Crown Court consists of the Justices of the High
			Court and such number of other judges as Act of the
			Assembly for Northern Ireland may prescribe.
			.2 Notwithstanding the status of the Crown Court as a
			superior court, judges of the Crown Court (other than
			Justices of the High Court) shall not be treated for the
			purposes of this Constitution as judges of a superior
			court.
			14.5 The number and title of judges of intermediate and inferior
			courts shall be such as Act of the Assembly for Northern
			Ireland may prescribe.
			15. Judicial qualifications
			15.1 .1 Judges of superior and intermediate courts shall be
			selected from -
			CONSTITUTION 127
			. 1 persons who have rights of audience in the courts to
			which they are to be appointed; or
			.2 in the case ofjudgesofa superior court, personswho
			have served as judges of another superior court or of
			an intermediate court; or
			.3 in the case of judges of an intermediate court,
			persons who have served as judges of another
			intermediate court or an inferior court and who have
			such further qualifications (if any) as Act of the
			Assembly for Northern Ireland may prescribe.
			.2 Nothing in this Section prevents the appointment of lay
			members of a court of specialised jurisdiction to sit with
			a presiding judge qualified under this Section.
			15.2 Judges of inferior courts shall be selected from persons who
			have such qualifications as Act of the Assembly for Northern Ireland may prescribe.
			16. Appointment of judges
			16.1 .1 The Chief Justice of Northern Ireland and the other
			Justices of the superior courts in Northern Ireland shall
			be appointed by the Chief Executive for Northern Ireland Assembly.
			.2 The Chief Executive shall make the appointment to fill
			any vacancy by selecting one out of two persons whose
			names shall be submitted for consideration by the Judicial Services Commission for Northern Ireland (subject
			to the right to invite the Commission to reconsider the
			submission).
			16.2 Judges of intermediate and inferior courts shall be appointed by the Chief Executive for Northern Ireland, acting
			in accordance with the recommendation of the Judicial
			Services Commission for Northern Ireland.
			17. Supplementary appointments
			17.1 .1 The Judicial Services Commission for Northem Ireland
			may authorise -
			128 CONSTITUTION
			. 1 a judge of any court to sit as a judge of a court of equal
			or lesser jurisdiction;
			.2 any person who is eligible for appointment as a judge
			of any court or who is a retired judge of any court to
			sit as a temporary judge of that court;
			.3 any person who is eligible for appointment as a judge
			of any court to sit as a part-time judge of that court
			.2 Authorisation under this Section may be given by general rules and may be delegated to such persons as
			appear to the Judicial Services Commission for Northern Ireland to be appropriate.
			17.2 .1 Assistant judges of any court may be appointed for the
			purpose of dealing with interlocutory, uncontested or
			other subsidiary matters.
			.2 For the purposes of appointment and tenure, assistant
			judges of a superior court shall be treated as judges of an
			intermediate court and assistant judges of an intermediate court shall be treated as judges of an inferior court.
			18. Jurisdiction of Court of Appeal
			18.1 The Court of Appeal is the highest appellate court in
			Northern Ireland.
			18.2 The Court has jurisdiction to hear appeals from any decision of the High Court or the Crown Court or an intermediate or inferior court, subject to -
			.1 Article 94.2;
			.2 the giving of leave to appeal, where required by any Act
			of Parliament or the Assembly for Northern Ireland or
			Rules of Court;
			.3 any such Act excluding or limiting rights of appeal in
			any class of proceedings;
			.4 in the case of appeals from an inferior court, any
			intermediate appeal procedures which may be established by any such Act.
			CONSTITUTION 129
			19. Constitutional Jurisdiction of High Court
			19.1 Any reference made in Northern Ireland under Article 94.1
			shall be made to the High Court.
			19.2 There is a right of appeal to the Court of Appeal, without
			leave, from any decision of the High Court that an Act of the
			Assembly for Northern Ireland is wholly or partly void.
			19.3 Any proceedings in which -
			.1 the plaintiff, applicant or accused claims that there has
			been a contravention of the Bill of Rights, contained in
			Chapter 2; or
			.2 the plaintiff, applicant or accused challenges the validity of -
			.1 any subordinate legislation made under an Act of
			Parliament or of the Assembly for Northern Ireland;
			or
			.2 any executive decision of the Government of the
			United Kingdom or of the Executive for Northern
			Ireland or of any body exercising powers under this
			Constitution;
			or
			.3 a substantial issue as to the interpretation of this Constitution arises,
			may be commenced in the High Court, without prejudice to
			the exercise of any power of the High Court to transfer such
			proceedings to another court.
			19.4 I n -
			.1 any such proceedings as are mentioned in subsection .3;
			or
			.2 any proceedings in which a claim that an Act of Parliament or of the Assembly for Northern Ireland is wholly
			or partly void has been dismissed,
			no restriction may be placed on any right of appeal to the
			Court of Appeal unless the claim or challenge is frivolous,
			vexatious or an abuse of th$ process of the court.
			130 CONSTITUTION
			20. Rules Committees
			20. There shall be Rules Committees, the membership of which
			shall be prescribed by Act of the Assembly for Northern
			Ireland, which shall make, amend and keep under review
			Rules of Court for practice and procedure.
			rr
			I
			CONSTITUTION 131
			SCHEDULES
			JUDICIAL SERVICES COMMISSION AND JUDICIAL COUNCIL
			FOR ENGLAND AND WALES
			1. Judicial Services Commission for England and Wales
			1.1 .1 The Judicial Services Commission for England and
			Wales consists of -
			.1 a lay President;
			.2 5 judges (who shall include at least one Justice of the
			Court of Appeal, at least one Justice of the High
			Court and at least one judge of an intermediate court)
			who shall be elected by the judges by such method
			as Act of Parliament shall prescribe;
			.3 2 persons who have regularly exercised rights of
			audience in the superior courts for not less than 15
			years;
			.4 1 lay member resident in Wales;
			.5 6 other lay members, who shall be broadly representative of the community.
			.2 The Judicial Services Commission may act notwithstanding any vacancy in its membership.
			.3 For the purposes of this Section, the expressions “judge”
			and “lay” have the meanings given by Article 109.2.2.
			1.2 .1 The members of the Judicial Services Commission
			(other than judicial members) shall be appointed by the
			Minister of Justice after consultation with the Master of
			the Rolls and the Chief Justice of the High Court.
			.2 The lay members shall be selected by the Minister of
			Justice from a list of names submitted by the Public
			Services Commission.
			.3 If either of the Master of the Rolls or the Chief Justice
			records dissent from a proposed appointment, the fact of
			the dissent shall be published if the Minister proceeds
			with the appointment.
			1.3 The members of the Judicial Services Commission shall be
			appointed for such terms (being not less than 5 years) as Act
			132 CONSTITUTION
			of Parliament may prescribe.
			1.4 No person may be appointed for a term which would expire
			after that person attains the age of 70 years.
			1.5 A member of the Judicial Services Commission ceases to
			hold office -
			. 1 upon the expiry of the terms of the appointment (which
			may be renewed);
			.2 if the member ceases to have the qualification necessary
			for appointment;
			.3 on receipt by the Minister of Justice of a letter of
			resignation from the member;
			.4 in the case of a judicial member, if the member is
			removed from office under Part 4 of Chapter 9;
			.5 in the case of a non-judicial member, if the member is
			removed from office by the Public Services Commission;
			.6 if the member accepts an office which is declared by the
			Constitution or Act of Parliament to be inconsistent with
			membership of the Judicial Services Commission.
			2. Welsh and Regional Appointments Committees
			2.1 There is established by this Constitution a Welsh Appointments Committee of the Judicial Services Commission.
			2.2 .1 The members consist of -
			. 1 the member of the Judicial Services Commission appointed under Section 1.1.4 (who shall chair the
			Committee);
			.2 2 judges of intermediate courts in Wales, who shall
			be elected by the body of such judges;
			.3 one member of the legal profession practising in
			Wales who has practised there for not less than 15
			years;
			.4 3 other lay members resident in Wales.
			.2 The Welsh Appointments Committee may act notwithstanding any vacancy in its membership.
			CONSTITUTION 133
			2.3 Section 1.2 to .5 applies to the Welsh Appointments Committee as it applies to the Judicial Services Commission,
			except that -
			.1 the Minister of Justice shall also consult the Chief
			Executive for Wales; and
			.2 an expression of dissent by the Chief Executive has the
			same effect as an expression of dissent by the Master of
			the Rolls or the Chief Justice of the High Court.
			2.4 .1 Regional Appointments Committees shall be established by Act of Parliament for each region of England.
			.2 Such Act shall make provision for appointments to, and
			cessation of, office of members of the Committees in
			like form, with necessary modifications, to subsections
			.2 and .3.
			2.5 The Welsh Appointments Committee and the Regional Appointments Committees shall report to the Judicial Appointments Commission which may give them directions
			as to administration and procedure.
			3. Conditions of service of Commission members
			3.1 Membership of the Judicial Services Commission, the
			Welsh Appointments Committee and Regional Appointment Committees shall be part-time, except that the President of the Judicial Services Commission shall serve fulltime.
			3.2 Non-judicial members shall receive such pay as may be determined by the Minister of Justice in consultation with the
			Treasury.
			4. Administration of Commission
			4. The Judicial Services Commission shall -
			.1 employ its own staff (subject to the approval of the
			Treasury as to the numbers and salaries of staff); and
			.2 provide the administration services required by the
			Welsh Appointments Committee and Regional Appointments Committees.
			134 CONSTITUTION
			5. Judicial Council
			5.1 The Judicial Council consists of representatives of Justices
			of the Court of Appeal, of Justices of the High Court, of
			judges of intermediate courts and of judges of inferior
			courts (including at least one judge of an intermediate or
			inferior court in Wales).
			5.2 Act of Parliament shall provide for the method of selection
			and terms of office of the members.
			CONSTITUTION 135
			SCHEDULE 6
			WORDS OF ENACTMENT
			1. In every Bill presented to the Head of State for Assent, other than
			a Bill mentioned in paragraphs 2 to 6, the words of enactment shall
			be as follows -
			“Be it enacted by the Head of State by and with the advice and
			consent of the House of Commons and the Second Chamber
			of the United Kingdom and by the authority of the same, as
			follows -
			2. In every Bill presented to the Head of State for Assent under Article
			67 or 68, the words of enactment shall be as follows -
			“Be it enacted by the Head of State by and with the advice and
			consent of the House of Commons of the United Kingdom in
			accordance with the provisions of Article 67 (or Article 68,
			as the case may be) of the Constitution of the United Kingdom and by the authority of the same as follows
			3. In every Bill to amend this Constitution to which Article 69.1 or
			Article 69.2 applies that is presented to the Head of State for
			Assent, the words of enactment shall be as follows -
			“Be it enacted by the Head of State by and with the advice and
			consent of the House of Commons and the Second Chamber
			of the United Kingdom in accordance with the provisions of
			Article 69.1 (or Article 69.2, as the case may be) of the
			Constitution of the United Kingdom, and by the authority of
			the same as follows -
			4. In every Bill to amend this Constitution to which Article 69.3 also
			applies, to the words of enactment set out in paragraph 3, there shall
			be added, immediately before the expression “of this Constitution”, the following expression -
			“, and after being duly ratified by Assemblies in accordance
			with Article 69.3, ”
			136 CONSTITUTION
			5. In every Bill to amend this Constitution to which Article 69.4 also
			applies, to the words of enactment set out in paragraph 3, there shall
			be added, immediately before the expression “of this Constitution”, the following expression -
			“, and after approval by referendum in accordance with
			Article 69.4,”.
			6. In every Constitutional Bill to which Article 70 applies that is
			presented to the Head of State for Assent, the words of enactment
			“Be it enacted by the Head of State by and with the advice and
			consent of the House of Commons and Second Chamber of
			the United Kingdom in accordance with the provisions of
			Article 70 of the Constitution of the United Kingdom and by
			the authority of the same, as follows - ”,
			COMMENTARY 1
			CHAPTER 1
			THE CONSTITUTION
			ARTICLE I
			Constitution as foundation of power in United Kingdom
			This Article has several fundamental functions. First, it affirms the
			Constitution’s most radical characteristic: that it is a written constitution for the United Kingdom which wholly replaces the former,
			unwritten constitutional order. Though the revolution in practice and
			action contemplated by the Constitution is partial, in the sense that
			while vital reforms are made, not everything is changed, the revolution
			in constitutional thought required is total. Henceforth, authority for
			legislative, judicial or executive action must be sought not in common
			law principles such as parliamentary sovereignty or prerogative power,
			nor in constitutional conventions, such as ministerial responsibility,
			but in the written provisions of this Constitution. If the authority
			cannot be found there, the action is invalid, whatever the traditional
			conceptions might suggest.
			Second, the Article places the Constitution in the context of the United
			Kingdom’s international and European commitments. The statement
			in this Article is deliberately drafted in general terms: specific implementation of the commitment referred to is provided in later Articles,
			notably Article 51.3 on international relations. So far as the European
			Community is concerned, Article 50 secures the direct application and
			effect of European Community Law by giving constitutional force to
			the appropriate provisions of the European Communities Act 1972, as
			amended. By this means, a constitutional base for European Community Law in the United Kingdom is secured, which is compatible with
			the “sole foundation” claim of Article 1.1; at the same time, the open
			texture of Article 1.2 provides a constitutional mandate for the United
			Kingdom’s participation in whatever course of development the
			Community might pursue, while not constitutionally committing it to
			anything beyond respect of its existing Community obligations. So far
			as the broader international order is concerned, Article 1.2 is designed
			not to exclude the recognition of general international law (as opposed
			to our treaty obligations, dealt with under Article 51.3 as part of the law
			of the United Kingdom), but to leave to the courts the question of
			whether and with what effect such international law obligations are to
			be recognised as operative in the United Kingdom in any given case.
			2 COMMENTARY
			Third, the Article lays down, in 1.3, the general principle of application
			and interpretation of law which is appropriate to a written Constitution.
			So far as possible laws are to be interpreted in harmony with the
			Constitution. Should it be impossible to interpret a law so as to bring
			it into conformity with the Constitution, then Article 1.4 on inconsistency will apply. Article 1.3 deliberately distinguishes between “Acts
			of Parliament” and “laws”. The latter, broader term includes not only
			Acts of Parliament but also legislation passed by the Assemblies.
			Fourth, the Article lays down the general principle of transition from
			the unwritten Constitution era to the written Constitution era. It
			deprives of effect all existing law (including, for the purposes of this
			provision, common law) and other constitutional practice to the extent
			of its inconsistency with the Constitution. By necessary implication it
			preserves all other law in full force, and it also preserves the legal effect
			of things done prior to the enactment of the Constitution under laws,
			conventions and practices which are rendered invalid after that date.
			CHAPTER 2
			RIGHTS AND FREEDOMS
			Part 1: Fundamental Rights and Freedoms
			Division 1: Bill o f Rights
			The Bill of Rights set out here draws on the European Convention on
			Human Rights and Fundamental Freedoms (The Convention) and on
			the United Nations International Covenant on Civil and Political
			Rights (The Covenant), by both of which the United Kingdom is
			legally bound. Our Bill is compatible with both but in some respects
			goes further in its definition and protection of rights. As a general
			principle we have relied on the provisions of the Convention, in some
			instances limiting the circumstances in which a right may be curtailed,
			but in others replacing the provision with its equivalent in the Covenant
			where the wording is preferable.
			In Article 2 (right to life), for instance, which is based on Article 2 of
			the Convention, we have removed the exception which permits the
			death penalty during time of war. In Article 5 (right to liberty), which
			is based on Article 5 of the Convention, we have deleted references to
			the detention of alcoholics, drug addicts and vagrants. Their imprisonment for specific criminal offences would, of course, still be permitted.
			COMMENTARY 3
			From Article 8 (respect for private and family life), which is based on
			Article 8 of the Convention, we have removed “economic wellbeing
			of the country” as grounds for infringing privacy. In the case of Article
			11 (freedom of expression) we have relied almost entirely on the
			stronger protection provided by the Covenant. Similarly, Article 15
			(right to participation in public life and service) draws on the Covenant
			in preference to the more limited protection provided by Protocol 1 to
			the Convention.
			In one instance, Article 18, which provides a right of asylum, we have
			drawn on the American Convention of Human Rights because there is
			no equivalent provision in either the Convention or the Covenant. In
			other cases we have added to the protection provided by the international instruments, as in our Article 19 (equality) which includes
			within the grounds for non-discrimination, homosexuality, age and
			disability.
			The UK Government has entered a number of reservations to provisions of the Convention and Covenant and failed to ratify some
			Protocols to the Convention. Where we consider the Government
			should accept these provisions we have included them within our text
			and indicated where we have done so.
			Both of these international instruments permit derogations from certain rights and freedoms during periods of serious public emergency.
			Article 128 of this Constitution permits derogations (or ‘suspensions’)
			in similar circumstances but provides that a decision to suspend a right
			requires an affirmative resolution of both Houses of Parliament, with
			periodic votes to renew it. Furthermore, the courts (like courts in other
			Commonwealth countries) are empowered to review whether the facts
			of the situation justify suspension. In practice the courts would give
			considerable weight to the Government’s view on a decision of this
			kind, but it would not necessarily be decisive.
			The Bill of Rights applies to any act (or omission) by any person or
			body in the performance of any public function (see Article 20). We
			envisage that the normal method of challenging legislation or the
			actions of public authorities will be by application to the High Court
			for judicial review (or the Scottish Court of Session or the Northern
			Ireland High Court), with a right of appeal to the Supreme Court. In
			other circumstances, however, Bill of Rights issues would not be dealt
			with exclusively by judicial review. For example, defendants to a
			charge of obstructing the highway might raise as a defence the claim
			4 COMMENTARY
			that they were exercising their right to freedom of assembly protected
			by the Bill of Rights. We envisage that the trial court would rule on the
			validity of the defence.
			Deciding on the validity of a statute, however, would always be a
			matter of public importance and it would be essential to avoid conflicting decisions in different lower courts. Accordingly, if a defendant
			challenged the validity of the Act of Parliament under which he or she
			was being prosecuted in a magistrate’s court, that court would have to
			refer the challenge for decision by the High Court, with a right of
			appeal to the Supreme Court, unless the challenge was clearly hopeless. If the High Court dismissed the challenge, the case would then
			continue in the magistrate’s court. Individuals would retain the right to
			complain to the European Commission of Human Rights in Strasbourg
			if they believed that their rights under the Convention had been
			infringed and they had been unable to obtain a remedy under the
			provisions of the Bill of Rights in the UK Constitution.
			If the Bill of Rights is to be effective, the legal remedies in administrative law need to be rectified, in particular the bar on obtaining an
			injunction against the Crown and the absence of financial compensation (in most instances) for loss caused by administrative action where
			a public authority has exceeded its powers or acted improperly or
			unreasonably. This argument, the historical development of support
			for a Bill of Rights, the arguments for and against its introduction, and
			related issues are set out in IPPR’s A British Bill o f Rights, Constitution Paper No 1,1990, which first published the draft Bill of Rights
			contained in this Constitution (with minor amendments).
			The text of the Bill of Rights consists of 18 Articles which contain the
			substantive rights protected by the Bill of Rights and 6 Articles which
			define the operation and effect of the Bill. Throughout the commentary
			on the Bill of Rights ‘EC ’ refers to the European Convention on
			Human Rights and Fundamental Freedoms and ‘IC’ to the International Covenant on Civil and Political Rights.
			ARTICLE 2
			Right to life
			This is EC 2, with the omission of para. 2(b), which states: “in order
			to effect a lawful arrest or to prevent the escape of a person lawfully
			detained.” Escaping from arrest or detention cannot justify intentional
			killing unless it involves life-threatening violence, in which case 2.3.1
			COMMENTARY 5
			would apply.
			The EC allows the death penalty “in respect of acts committed in time
			of war or imminent threat of war”, to be applied “only in the instances
			laid down in the law”. There is no restriction in respect of the type of
			crimes for which the death penalty can be imposed. IC allows a
			reservation “which provides for the application of the death penalty in
			times of war pursuant to a conviction for a most serious crime of a
			military nature committed during war time”. This reservation is
			unsatisfactory as it seems to allow the death penalty for desertion but
			not for civilian genocide. It is our view that the death penalty is wrong
			in any circumstances and these provisions have therefore been omitted.
			The European Court of Human Rights has not yet had occasion to
			interpret the words “everyone has the right to have his life respected”
			which open Article 2 of the Convention. The Commission has however
			examined their application to a number of issues including euthanasia,
			sterilisation, and the duty to safeguard life as well as to refrain from
			taking it intentionally. The European Commission expressly left open
			the question whether the unborn child is covered by EC 2 in Bruggemann and Scheuten v F.R.G. (Application 10 D & R 100), a case
			brought under EC 8 (right to respect for private life) alleging that the
			rules restricting a woman’s access to abortion constituted a violation
			of that Article. The Commission held that pregnancy and its termination cannot be considered solely a matter of the private life of the
			mother, observing that in the domestic law of all parties to the EC
			certain rights are attributed to a conceived but unborn child (for
			example, in relation to inheritance).
			In the case of X v UK ( Application No 8416/79; 19 D&R 244) the
			applicant complained of the refusal by the High Court to grant an
			injunction to prevent the termination of his wife’s pregnancy. His
			complaint was that the Abortion Act 1967 violated Articles 2, 5 (right
			to liberty and security), 6 (right to a fair hearing), 8, and 9 (freedom of
			thought). The Commission rejected the view that a foetus has an
			absolute right to life and found the UK abortion laws compatible with
			EC 2 (1) which they considered contained an implied limitation
			protecting the woman’s life and health at her early stage of pregnancy.
			The applicant (the father of the child) also claimed violations of EC 8
			because he was excluded from all the decisions relating to the abortion.
			The Commission held that the father’s rights did not embrace proce­
			6 COMMENTARY
			dural rights to be consulted where the woman intended to have an
			abortion.
			ARTICLE 3
			Freedom from torture
			This is EC 3, with the addition of “cruel” from IC 7.
			ARTICLE 4
			Freedom from slavery and enforced labour
			This is EC 4, omitting “in countries where they are recognised” after
			“objectors” in sections 4.3.2. IC 8 is very similar.
			ARTICLE 5
			Right to liberty and security
			The list of exceptions to the right to liberty and security are those set
			out in EC 5 with the deletion of references to detention of minors for
			educational supervision, alcoholics, drug addicts and vagrants. This
			does not, of course, make it unlawful to imprison drug addicts for drug
			offences, etc. In 5.1.2.4, the words “constituting a serious threat to
			public health” and “where necessary for the prevention of harm to
			themselves or others” have been added to narrow the exception. A
			reference to “persons suffering from mental disorder” is substituted for
			“persons of unsound mind”.
			5.2 is IC 9(2) with part of EC 5(2).
			5.3 is mainly a rearranged IC 9(3). 5.3.2 is from IC 9(3) with the
			addition at the end of the words “pending trial” from EC 5(3). 5.3.3 is
			also from IC 9(3) but omits the words at the end “and, should occasion
			arise, for execution of the judgement”, which seem unnecessary.
			5.4 is IC 9(4). EC 5(4) is very similar.
			5.5 is IC 9(5). EC 5(5) is very similar.
			5.6 is IC 10(1). There is no EC equivalent.
			5.7 is IC 10(2)(a). There is no EC equivalent.
			5.8 is IC 10(2)(b) and the second sentence of IC 10(3), slightly
			reworded. This arrangement seems better than that in IC 10. There is
			no EC equivalent. The UK has reserved the right not to apply this
			COMMENTARY 7
			provision where there is a lack of suitable prison facilities or where the
			mixing of adults and juveniles is deemed to be mutually beneficial. In
			our view this reservation should not be retained.
			5.9 is IC 11. EC Protocol 4 is very similar.
			The UK has also generally reserved “the right to apply to members of
			and persons serving with the armed forces of the Crown and to persons
			detained in penal establishments of whatever character such laws and
			procedures as they may from time to time deem to be necessary for the
			preservation of service and custodial discipline”. This has particular
			application to this Article. In our view this reservation should not be
			retained.
			ARTICLE 6
			Right to fa ir and public hearing
			This is EC 6 with some additions from IC 14. “Morals” has been
			deleted from the grounds for removing the press and public from a trial,
			in 6.1, as we do not consider that it could be justified to exclude the
			press or public on those grounds. 6.3.6 is IC 14(3)(g) and has no
			equivalent in EC 6.
			6.4 is a modified version of IC 14(6). There is no EC equivalent (Article
			5.5 above does not apply because the detention is not unlawful). IC
			14(6) is clumsily and too narrowly worded — it applies only if it is
			“conclusively” shown by a “newly discovered fact” that there has been
			a miscarriage.
			6.5 is section (5) of IC 14. There isasim ilarprovisioninEC Protocol 7.
			6.6 is section (7)ofIC 14. There isasim ilarprovisioninEC Protocol 7.
			ARTICLE 7
			Retrospective offences prohibited
			7.1 is EC 7(1), complete. IC15 is similar, except that it adds a sentence
			at the end of para 1 enabling an offender to have the benefit of any
			reduction in penalties made subsequent to the offence. This would
			seem to be unnecessary.
			7.2 is based on EC 7(2). (IC 15(2) is similar). However, EC 7(2) allows
			trial “for any act or omission which, at the time when it was committed,
			was criminal according to the general principle of law recognised by
			8 COMMENTARY
			civilised nations”. We think that this restriction should be tightened up
			and limited to genocide or crimes against humanity.
			ARTICLE 8
			Respect fo r private and fam ily life
			This is EC 8, slightly reworded, with the removal of “economic
			wellbeing of the country” as grounds for infringing privacy. We
			consider that there is no justification for this exception, inspection of
			financial records in a fraud investigation, or VAT inspection, for
			instance, falling within the exception for “prevention of crime”.
			EC 8 does not give any right to privacy as such, but only the right to
			respect for private and family life, home and correspondence.
			In the Leander case (9 EHRR 433), which concerned security monitoring, the State was found to have interfered with the negative obligation
			imposed by EC 8 by compiling, storing, using and disclosing private
			information about the applicant, but it was held that such interference
			was justified in the interests of national security in that, in the
			circumstances, it corresponded to a pressing social need and was
			proportionate to the legitimate aim pursued. In Malone v UK, (7 EHRR
			14), which concerned telephone tapping in the course of police
			investigations, the Court found it unnecessary to make a finding as to
			whether this practice could be justified under EC 8(2) since in this case
			the interferences were not “in accordance with the law”, there being no
			written law on the matter. As a result of the judgement, the UK
			government introduced the Interception of Communications Act 1985.
			In Gaskin v UK (12 EHRR 36), the applicant himself wanted access to
			the information held and compiled by the State authority when he was
			in care during his early childhood and formative years. The Court
			stated that a “fair balance has to be struck between the general interest
			of the community and the interests of the individual”. Whilst an
			applicant had an interest protected by the Convention in receiving this
			information, the “confidentiality of public records is of importance for
			receiving objective and reliable information...and necessary for the
			protection of third persons”. The Court decided that the lack of procedure for balancing those interests in the British system constituted a
			violation of the right to respect for private and family life.
			COMMENTARY 9
			ARTICLE 9
			Freedom o f thought
			This is, with the exception of 9.3, EC 9 complete but slightly reworded.
			It is very similar to IC 18(1) and (3). IC 18(2) provides that “No one
			shall be subject to coercion which would impair his freedom to have
			or to adopt a religion or belief of his choice.” This does not seem to add
			anything to 9.1 above. 9.3 is a general prohibition applying both to
			Parliament and the Assemblies against making laws which interfere
			with freedom of religion. The implication of this prohibition, along
			with the reform of the Second Chamber, is that the established position
			of the Church of England and Church of Scotland will be brought into
			question. We have not examined the implications in any depth, but
			believe that the logic of the Bill of Rights and the development in the
			United Kingdom of a variety of religious faiths as well as denominations should in the long run result in disestablishment and a secular
			constitution.
			ARTICLE 10
			Right to education
			This Article is based on EC Protocol 1 para 2. The opening words of
			10.2 are altered; the original is “In the exercise of any functions which
			it assumes in relation to education and to teaching, the State shall
			respect...” This is not wholly appropriate to the UK, where education
			is mainly a local authority function.
			IC contains no equivalent to 10.1. This should clearly be included as
			a basic right.
			IC 18(4) is fairly similar to 10.2. It contains a number of textual
			differences. These are:
			IC 18(4) speaks of the “liberty of parents”, not the “right of parents”.
			IC18(4) refers to legal guardians as well as parents.
			IC 18(4) refers to “religious and moral education of their children in
			conformity with their own convictions”. The words “moral” (IC) and
			“philosophical” (EC) are not entirely synonymous.
			The words following “convictions” follow the wording of a reservation by the UK on the ratification of the Protocol. We think that the
			reservation is reasonable and should be retained.
			10 COMMENTARY
			The extent of a State’s duty to protect the right to education has been
			a subject of concern in a number of EC Member States. The UK has
			accepted the duty to protect this right only so far as is compatible with
			the provision of efficient instruction and training and the avoidance of
			unreasonable public expenditure.
			The State has no obligation under Article 2 of EC Protocol 1 to
			establish or subsidise private schooling, or any particular type of
			schooling, for example grammar schools (7 EHRR 135). Nor need it
			conform education to the linguistic preferences of the parents. However, in the Belgian Linguistics case (1 EHRR 241) the Court found a
			violation of Article 2 read in conjunction with EC 14 (non-discrimination) because Dutch-speaking children residing in the French unilingual region had access to Dutch schools but French-speaking children
			in the Dutch area had no access to French schools.
			In Campbell and Cosans (4 EHRR 293) it was held that Article 2 of
			Protocol 1 does not prevent states from imparting through teaching or
			education information or knowledge of a directly or indirectly religious or philosophical kind but they must take care that such information is conveyed in an objective and pluralistic manner. The Court has
			also held (Kjeldsen, Busk, Madsen and Pedersen v Denmark, 1 EHRR
			711) that the State is forbidden to pursue an aim of indoctrination that
			might be considered as failing to respect parents’ religious and
			philosophical convictions.
			IC 18 refers to freedom of thought, conscience and religion and the
			State’s obligation to ensure the moral education of children. The
			Human Rights Committee has held (Communication 4011978 v Finland) that Finnish legislation requiring the study of the history of
			religion did not violate the rights of parents who objected to religious
			instruction, provided the courses were given in a neutral and objective
			way.
			ARTICLE 11
			Freedom o f expression
			This is IC 19 with the addition of part of EC 10(1). Unlike EC 10, IC
			19 clearly separates the right to hold opinions and does not make it
			subject to any restrictions. The expression of opinion can be regulated
			but not the right to possess them. In contrast, EC 10 legitimates
			interference with the possession of views as well as their expression.
			The formulation of the scope of freedom of expression in IC 19 Para
			COMMENTARY 11
			2 is also more elaborate and comprehensive than EC 10. Most
			significantly, it includes the right to “seek” information, the root of
			freedom of information. There have been calls to amend EC 10 to
			provide that right but no such amendment has yet been made. Para (3)
			(our 11.3) also seems preferable to the detailed list of exceptions in EC
			10(2). In contrast to the decision we have taken in relation to Articles
			6 and 16, we have not deleted the exception “morals” from this Article.
			This is because we do not think that necessary controls on freedom of
			expression, for instance on pornography, should always fall within the
			criminal law. Where regulation, such as cinema or sex shop licensing,
			is the most appropriate form of control, rather than the criminal law, it
			would not be covered by the “crime prevention” exception, but would
			be covered by “morals”. We note that the European Court of Human
			Rights has not interpreted “morals” as grounds for interfering in the
			values and mores of private individuals.
			Traditionally in the English legal system, since the right to free speech
			has no enforceable constitutional protection, the protection of the
			interests of the state or its agents can override the freedom of the
			individual. The Strasbourg approach is quite the reverse, guaranteeing
			the individual the right to freedom of expression unless a restriction on
			it can be shown to be justified.
			The right to express ideas that offend, shock or disturb the state or any
			sector of the population has been firmly upheld in the case of Handyside v UK (1 EHRR 737). In the Sunday Times Case (2 EHRR 245),
			which concerned an injunction issued by the Attorney-General to
			prevent a newpaper from publishing an article about an issue which
			was the subject of legal proceedings but which had not yet proceeded
			to trial, the Court stated that the principle of freedom of the press
			applied even to the administration of justice. Whilst courts are a forum
			for the settlement of disputes, this does not mean that there could be no
			prior discussion of those disputes elsewhere. For a restriction on that
			freedom to be “necessary in a democratic society” it must correspond
			to a pressing social need and be proportionate to the legitimate aim
			pursued.
			In a case brought under the International Covenant, Wernberger v
			Uruguay 28/1978), the applicant was arrested and held incommunicado for many months. He was later convicted of being a member of
			a subversive association. He claimed that the real reason for his arrest
			and conviction was that he had contributed information on trade union
			12 COMMENTARY
			activities to a newspaper opposed to the government. The Committee
			found that he had indeed been detained for having disseminated
			information relating to trade union activities and therefore found a
			violation of IC 19.
			ARTICLE 12
			Freedom o f assembly and association
			This is EC 11, with the substitution of “the preservation of public
			order” in 12.2 “for the prevention of disorder or crime”.
			The IC separates freedom of assembly (IC 21) from freedom of
			association and trade unions (IC 22). Otherwise, the IC and EC
			versions are very similar, except that in the IC the armed forces and
			police exceptions do not apply to freedom of assembly.
			Whilst EC 11 protects the right to form and join trade unions, it does
			not secure any particular treatment of unions or their members by the
			State, such as an obligation on the State to conclude any collective
			agreement with them. Not only is this latter right not mentioned in EC
			11(1), but neither can it be said that all Contracting States should
			incorporate it in their national law or practice, or that it is indispensable
			for the effective enjoyment of trade union freedom. (Swedish Engine
			Drivers’ Union 1 EHRR 617 para 1).
			EC 11 is unclear as to whether an individual has the freedom not to
			associate. Nevertheless, the Court ruled that “compulsion to join a
			particular trade union may not always be contrary to the Convention.
			However, a threat of dismissal involving loss of livelihood....strikes at
			the very substance of freedom guaranteed by Article 11.” (Case of
			Young, James and Webster, 4 EHRR 38).
			Limitations on the right to associate include those listed in EC 11.
			Military personnel and student unions are not granted the same
			protections as trade unions. The Court has held that Belgian law, which
			required all medical practitioners to be registered under an ‘Order’ did
			not interfere with freedom of association because the purpose of the
			“Ordre” was to protect the general health of the public. However, the
			“Ordre” could not prevent practitioners from forming together or
			joining professional associations. (Le Compte, Van Leuven, de Meyere,
			4 EHRR 1).
			In the case of the Council o f Civil Service Unions v UK (known as the
			GCHQ case, 10 EHRR 269), the Commission found that the Govern-
			COMMENTARY 13
			merit’s action in removing the right of individual employees to belong
			to a union was an interference with the rights protected by EC 11(1),
			but that it was justified under EC 11 (2); and that the restrictions were
			“lawful” under the second part of EC 11(2) as GCHQ employees were
			deemed to be members of the administration of State and the regulations were introduced in accordance with national law.
			Finally, EC 11 leaves to each state a “free choice” in limiting the means
			used to protect the occupational interests of trade union members by
			trade union action. (Swedish Engine Drivers Union 1 EHRR 617 para
			1). For example, “the grant of a right to strike...may be subject under
			national law to regulation of a kind that limits its exercise in certain
			instances”. (Sc/imtdí and. Dahlstrom 1 EHRR 632 para 1).
			ARTICLE 13
			Rights in respect o f marriage
			13.1 is EC 12, omitting words at the end which are inappropriate in a
			domestic charter. IC 23(2) is similar. “Everyone” has been substituted
			for the EC wording, “men and women”.
			13.2 is IC 23(3). There is no EC equivalent.
			13.3 is based on IC 23(4), which requires States to take steps to ensure
			these rights. There is no EC equivalent.
			13.4 is IC 24(1), with the substitution of “public authorities” for “the
			State” at the end. There is no EC equivalent and we have omitted the
			non-discrimination provisions as being covered by Article 19 below.
			IC 24(3) provides that every child has the right to acquire a nationality.
			In our Articles 30-32 we have provided for the basic right to acquire
			nationality. Were the Bill of Rights to be enacted in isolation it would
			need to include a domestic equivalent of IC 24(3) and probably extend
			it.
			ARTICLE 14
			Right to enjoyment o f possessions
			14.1 is EC Protocol 1 Article (1), omitting at the end “and by the general
			principles of international law” as being unnecessary in a domestic
			charter, but providing for compensation for British citizens and aliens
			if deprived of their possessions under the exceptions allowed. There is
			no IC equivalent.
			14 COMMENTARY
			14.2 is EC Protocol 1 Article 1(2), with the substitution of “to enforce
			such laws as may be necessary” for “of a State to enforce such laws as
			it deems necessary”.
			Article 1 of the First Protocol to the European Convention protects the
			peaceful enjoyment of possessions. The term ‘possessions’ includes
			any property right or interest recognized in domestic law. Compulsory
			contributions to social security schemes and pension rights may create
			property rights over a portion of the assets in the fund (Miieller v
			Austria 5849/72 3 DR 25). But a State may alter the terms of a statutory
			pension and forego repayment by acting in the “public interest”. The
			Commission has often found measures aimed at monetary and
			economic stability to be in the public interest, a term which has been
			held to include: taxation, customs duties, impositions of fines, orders
			for attachment of unlawful property, and redistribution of land in
			clearance schemes.(511/59 3 Yearbook 395; Handy side v UK 1 EHRR
			737). Whilst no-one may be deprived of his possessions except in the
			public interest, the Article does not expressly provide for compensation, nor does it create any obligation for the State to secure the value
			of property against inflation; nor does it extend to future earnings (X.v
			Federal Republic o f Germany 8724/78 20 DR 226).
			In deciding whether to compensate an individual for a property interest
			taken, there must be a determination “whether a fair balance was struck
			between the demands of the general interest of the community and the
			requirements of the individual’s fundamental rights” (Sporring and
			Lonnroth v Sweden 5 EHRR 35 para 1). The Lithgow case (8 EHRR
			329) concerned compensation for shareholders in industries that were
			being nationalised by the UK government. The Court held that the state
			had a wide margin of appreciation as regards not only the decision to
			nationalise but also the compensation terms and concluded there had
			been no violation. A similar approach was taken in the James case (8
			EHRR 121) concerning leaseholders’ rights to purchase their freeholds. The Court upheld the domestic law, but emphasised that such
			law in addition to being appropriate and proportionate must also be
			accessible and precise.
			ARTICLE 15
			Right to participate in public life and service
			This is essentially IC 25, with the omission of a cross-reference to IC
			2 (on discrimination). EC Protocol I Article 3 is more limited and gives
			COMMENTARY 15
			a right to vote (but not to stand for election) in terms similar to those
			in 15.2 above.
			ARTICLE 16
			Freedom o f movement
			This is based on EC Protocol 4 Article 2, adapted for domestic use. The
			UK has not ratified this Protocol because of the exclusion order powers
			conferred by the Prevention of Terrorism Act. IC12(l)-(3) is very
			similar.
			‘Morals’ has been deleted as a grounds for restricting these rights as it
			is capable of wide interpretation and we do not consider it justified in
			this case, given the remaining exceptions for the prevention of crime
			and the protection of the rights and freedoms of others. In 16.2 we
			have added the provision that anyone holding British nationality is
			entitled to a passport, believing this right to be of such importance that
			it ought to have a constitutional guarantee.
			ARTICLE 17
			Freedom from expulsion from the United Kingdom
			17.1 is based on IC 12 (4) and EC Protocol 4 Article 3. It is our intention
			that those British citizens who do not currently have a right of abode
			in the UK should be covered by this provision. There is currently a
			reservation under IC 12 (4) in respect of persons not having a right of
			entry under current UK law.
			The Convention and Covenant contain no exception for extradition,
			which is not treated as expulsion.
			17.2 is IC 13, adjusted for a domestic charter. In relation to the right
			to submit reasons against expulsion, we have added the requirement
			that the right to submit reasons be “prior to expulsion”, and have
			omitted the exception to this right “where compelling reasons of
			national security otherwise require” for which there is no justification.
			There is no EC equivalent to IC 13.
			ARTICLE 18
			Right o f asylum
			Article 18 is paras (7) and (8) of the American Convention on Human
			Rights, with minor textual amendments. There is nothing comparable
			in either the EC or IC.
			16 COMMENTARY
			ARTICLE 19
			Equality
			19.1 is EC 16.
			19.2 and 19.3 are essentially an amalgam of EC 14 and IC 26, with the
			addition of three further grounds for non-discrimination, homosexuality, age and disability.
			Division 2: Application and Interpretation
			ARTICLE 20
			Application o f Bill o f Rights
			This is based (rather loosely) on cl. 3 of the draft New Zealand Bill of
			Rights. See also S. 32 of the Canadian Charter of Rights and Freedoms.
			Article 20 does not cover Parliament, which is covered by Article 21.
			It makes explicit the Government’s obligation to take positive steps to
			ensure compliance with the Bill of Rights.
			A Bill of Rights is mainly intended to protect individuals and minorities against the misuse of power by government bodies and other public
			authorities It is not designed to be a direct source of rights and
			obligations as between private persons — for example, so as to enable
			a disaffected worker to sue a trade union, an employee to sue their
			employer for discrimination, or an individual to sue a peeping Tom
			neighbour for breach of privacy.
			Sometimes, however, it is possible to argue that a private body is in
			reality so powerful and so governmental in its activities that it is really
			a ‘private government’ which should be as amenable to judicial review
			as government itself. The courts have recently developed criteria for
			deciding whether ‘private’ bodies, such as the Stock Exchange, the
			Advertising Standards Authority, and professional disciplinary committees, are subject to judicial review. Article 20 makes it clear that the
			Bill of Rights imposes duties upon any person or body to comply with
			its terms when performing any public function. The primary remedies
			would clearly be for infringements by public authorities but there
			would also be the possibility of remedies against other bodies which,
			because of the special powers or public funds they enjoy, would be
			regarded as within the sphere of ‘State action’.
			The Bill of Rights would also be a legitimate source of guidance upon
			where the public interest lies in private law cases.
			COMMENTARY 17
			ARTICLE 21
			Scope o f exceptions
			Article 21 is intended to ensure that the courts only allow exceptions
			to any right if it is ‘strictly necessary in the circumstances’.
			ARTICLE 22
			Interpretation
			This is an interpretation section. It makes it clear that the Bill of Rights
			is meant to give effect to and be interpreted in conformity with the
			International Covenant and the ECHR, and that the courts will take
			notice of the judgements and opinions of the two bodies which
			adjudicate on the Covenant and Convention, the Human Rights
			Committee, and European Court and Commission of Human Rights,
			respectively.
			22.2 and 22.3 are based on the equivalent provisions of the European
			Communities Act 1972.
			The interpretation of a Constitution guaranteeing fundamental rights
			and freedoms calls for a different approach from the traditional (and
			increasingly outmoded) approach to the interpretation of ordinary
			statutes. Even in the absence of a Bill of Rights, British courts,
			influenced by Community law concepts, are much more purposive
			than in the past. When construing the Bills of Rights of other
			Commonwealth countries, the Privy Council has recognised that a
			generous interpretation is called for, which has regard to the character
			and genesis of the Constitution and avoids what has been called ‘the
			austerity of tabulated legalism’.
			The Supreme Court of Canada, however, (like the Supreme Courts of
			India, the United States, and Zimbabwe) is more contextual in approach than our courts and more willing to have regard to a wide range
			of evidence of the relevant social context. One question which arises
			is whether Parliament should, in relation to the Bill of Rights, specifically direct the courts to have regard to special principles of interpretation. For example, the Hong Kong Bill of Rights Ordinance provides
			that, in interpreting and applying the Ordinance, the rules of interpretation applicable to other legislation may (but not must) be disregarded, and that regard shall be had to:
			(a) the fact that the purpose of the Ordinance is to implement
			further the International Covenant on Civil and Political
			18 COMMENTARY
			Rights as applied to Hong Kong; and
			(b) the international origin of that Covenant and the need for uniformity in interpretation of rights recognised in that Covenant and similar rights recognised in other international
			agreements.
			We have considered it appropriate to include similar guidance for the
			interpretation of a UK Bill of Rights. Article 22 therefore states that it
			is intended to give effect in the UK to the International Covenant and
			the European Convention and requires the courts to interpret it accordingly (but without prejudice to any rights in the Bill of Rights which
			are more extensive than those contained in those international texts —
			see Article 23). This will necessarily require the UK courts to have
			regard to the decisions of the UN Human Rights Committee and the
			European Court of Human Rights respectively. In addition, however,
			there are the numerous decisions, opinions and reports of the European
			Commission on Human Rights, the Human Rights Committee, and of
			the more specialist international human rights commissions and
			committees which will be of relevance to their decisions. The
			judgments and advisory opinions of the Inter-American Court of
			Human Rights are also of strongly persuasive value on the international plane, as are the judgments of strong national constitutional
			courts in common law and civil law systems.
			ARTICLE 23
			Rights under other agreements
			Article 23 is EC 60 and is intended to ensure that, where the UK is party
			to other international human rights treaties, such as the United Nations
			Convention on the Elimination of All Forms of Discrimination Against
			Women or International Labour Organisation Conventions, nothing in
			the Bill of Rights can be interpreted as limiting the rights an individual
			enjoys under those Conventions.
			ARTICLE 24
			Abuse o f freedoms
			This is IC 5(1) from which the words “or at their limitation to a greater
			extent than is provided for in the present Covenant” have been deleted
			from the end of the Article to ensure that the Article is not used to
			restrict lawful political activities or to justify state surveillance and
			restrictions on state employees such as in former West Germany’s
			“Berufsverbot”.
			COMMENTARY 19
			Division 3: Remedies
			ARTICLE 25
			Remedies
			This Article gives a right to damages (as well as other remedies) for
			infringement of rights under the Bill of Rights.
			ARTICLE 26
			Human Rights Commission
			26.1 sets up a new body, the Human Rights Commission, appointed by
			the Secretary of State. However, as provided for elsewhere in the
			Constitution, the Commissioners are appointed only on the recommendation of the Public Service Commission, intended to ensure that
			they are appointed because of their expertise or other qualification for
			the post rather than because of any political views they may hold.
			In 26.2 the Commission’s duty is restricted to promoting compliance
			with the Bill of Rights but Parliament could confer additional responsibilities, eg to encourage good practice by private individuals and
			bodies not bound by the Bill of Rights. The wording of this clause is
			based on section 14(b) of Bermuda’s Human Rights Act (1981).
			The intention is that the primary role of the Commission will be to take
			legal proceedings against those who contravene the Bill of Rights and
			to assist individuals who initiate such proceedings. Clearly, the
			Commission should also have a duty to advise Parliament, the Assemblies, public authorities and those other bodies subject to the Bill of
			Rights, whether their current policies or practices contravene its
			provisions and if proposed legislation or policies are likely to do so.
			The following clauses provide for these specific functions.
			26.3 empowers the Commission to investigate practices and procedures which may be incompatible with the Bill of Rights. Following
			an investigation which disclosed actions contrary to the Bill of Rights,
			the Commission’s advice to the body concerned could be sufficient to
			stop the offending behaviour, thus avoiding any need for litigation.
			In 26.4 the Commission’s role in assisting individuals who want to take
			cases under the B i 11 of Rights is intended to reduce the number of cases
			which go unlitigated because individuals cannot afford to take the case,
			to provide complainants with more support and expertise, and to
			ensure that the Court is presented with the full implications of the case.
			20 COMMENTARY
			The Commission can, however, initiate proceedings without receiving
			any complaint, necessary in a situation in which individuals may not
			be aware of their rights or in a position to take action publicly to defend
			them. The intention is that the Commission should have considerably
			wider powers to initiate legal proceedings than the existing Equal
			Opportunities Commission, Commission for Racial Equality or Fair
			Employment Commission. In the case of the EOC and CRE it was
			thought that their powers to initiate investigations would compensate
			for limited powers to initiate proceedings but the limitations on their
			investigation powers have meant that they have proved largely ineffective. The Human Rights Commission should not be hampered in this
			way.
			26.5 empowers the Commission to challenge in Court a provision of
			an Act of Parliament or of an Assembly which, in its view, contravenes
			the Bill of Rights. It would be asking the Court to declare that part of
			the Act null and void.
			26.6 is based on Section 11(1 )(0) of the Australian Human Rights and
			Equal Opportunities Act. It enables the Commission to contribute to
			court proceedings in which it is not a litigant, for instance by submitting an amicus curiae brief.
			26.7 and 26.8 are based on S ll(l)(e), and S ll(l)(k ) of the Australian
			Human Rights and Equal Opportunities Commission Act (1986)
			respectively.
			26.9 empowers the Commission to provide Codes of Practice on some
			or all of the provisions of the Bill of Rights to assist those who are
			bound to uphold it. The Codes would not be legally binding but could
			be cited as relevant in legal proceedings under the Bill of Rights. Under
			the sex discrimination, race relations and fair employment legislation,
			such Codes require the approval of the Secretary of State but this would
			not be appropriate for Codes which are intended to ensure that the
			Government, inter alia, does not itself contravene the Bill of Rights.
			Based on S 11 (1 )(u) of the Australian Human Rights and Equal Opportunities Commission Act 1986.
			COMMENTARY 21
			Part 2: Social and Economic Rights
			ARTICLE 27
			Social and economic rights
			The International Covenants and Charters which are particularly
			relevant at the present time are the United Nations International
			Covenant on Economic, Social and Cultural Rights (1966), the Council of Europe Social Charter (1961), and the Community Charter of
			Fundamental Social Rights for Workers (1990). The seven rights
			which are cited in Article 27.1.1 -7 are drawn from these Covenants, by
			which the UK is already legally bound:
			. 1 based on Council of Europe Social Charter, Article 1
			.2 International Covenant, Article 9
			.3 International Covenant, Article 11
			.4 International Covenant, Article 12
			.5 International Covenant, Article 13
			.6 Community Charter of Fundamental Social Rights for Workers, Article 13
			.7 Community Charter of Fundamental Social Rights for Workers, Article 19.
			27.2 requires Parliament and the Assemblies of Scotland and Northern
			Ireland to provide access to the legal system and adequate legal aid, and
			is based on section 39A of Part IV (Directive Principles of State Policy)
			of the Indian Constitution.
			27.3 precludes the intervention of the courts in enforcing social and
			economic rights. This reflects the view that, while the Constitution
			should state the general principles on which public policy is to be
			conducted, it would not be appropriate for the courts to judge whether
			or not the Government or Parliament had provided, for example, an
			adequate level of income maintenance. Unlike the rights secured in the
			Bill of Rights, such matters are essentially political and best determined by political means. The same argument would apply to the
			determination of what is an adequate level of legal aid.
			22 COMMENTARY
			Part 3: Freedom of Information
			ARTICLE 28
			Access to official information
			Article 28 concerns the fundamental rights of the citizen in relation to
			information held by public authorities. The basic principle of Freedom
			of Information is encapsulated in section 28.1 and 2: namely that there
			is a general right of access to official information, subject to exemption
			on specific grounds. These exemptions are common to most existing
			FOl legislation in other countries, with the exception of that covering
			the constitutional position of the public service. This is included to
			cover the difficult question of policy advice, whose disclosure is
			thought by some to threaten the relationship between Ministers and
			civil servants and by others to deny government the privacy it requires
			for its own policy discussions. 28.3 and 4 require Parliament to
			legislate to make the right of access practicable and to provide a
			Commissioner to enforce it.
			ARTICLE 29
			Use o f information by public authorities
			Article 29 deals with information required of citizens by public
			authorities and requires that they should be informed of the purposes
			for which such information may be used and likewise in regard to the
			transfer of any information to another authority, except where the
			investigation of fraud or other misdemeanours is involved. This
			exception would allow public authorities to compare or check the
			information received from a citizen with that held by another public
			authority where there was a reasonable suspicion of deceit. On the
			basis of this Article aggrieved persons would be able to seek judicial
			review of the actions of public authorities which had contravened its
			provisions.
			The provisions of Articles 28 and 29 are intended to strengthen citizens
			in relation to public authorities both by increasing the information
			available to them and by protecting them from improper use of
			personal information by public authorities. These are necessary but not
			sufficient conditions for effective political influence by the citizen.
			COMMENTARY 23
			CHAPTER 3
			NATIONALITY
			ARTICLE 30
			British Nationality
			The four Articles in Chapter 3 establish who, on the coming into force
			of the Constitution, will be holders of ‘British Nationality’, how
			individuals can acquire (or lose) that status subsequently, make provision for individuals to hold dual nationality and require Parliament to
			determine the civic rights of non-nationals.
			The phraseology of 30.1 comes from the Hong Kong (British Nationality) Order 1986/948 (made under the Hong Kong Act 1985) which
			creates the status of British National (Overseas). British National has
			previously only been used loosely in the United Kingdom to describe
			individuals possessing one of the confusing collection of sub-categories of British statuses created by the British Nationality Act 1981.
			30.2 automatically reclassifies as British Nationals all those holding
			one of the six sub-categories which exist under the 1981 Act. Whereas
			in other countries, right of abode in that country, civic rights and civic
			duties are normally attached to nationality status, so that there is a clear
			dividing line between nationals and aliens, this does not currently
			apply in the UK where no right of abode is attached to any of the
			categories except ‘British citizenship’. The anomalous British position
			is particularly obvious in the context of the European Community. A
			person with the nationality of a Member State is a Community National
			and, as such, has important rights deriving from Community Law. The
			other Member State’s have had no difficulty in stating who their
			nationals are; the United Kingdom has had to produce a peculiar
			definition which includes British Citizens, British Dependent Territories’ citizens connected with Gibraltar, and those British Subjects who
			have right of abode (eg because they have a parent bom in the United
			Kingdom). All other British passport-holders and all Commonwealth
			citizens are excluded (by the UK’s own definition of its nationals) from
			the EC ’s freedom of movement provisions.
			The object of 30.2 is to end this anomaly and establish a single British
			National status to which the rights and duties in the Constitution are
			attached. For instance, this is necessary in order to know to whom
			Article 17.1 (“No British National shall be expelled from the United
			24 COMMENTARY
			Kingdom or deprived of the right to enter the United Kingdom”)
			applies.
			30.3 establishes who holds British Nationality by descent and who
			holds it otherwise than by descent. This is important as it determines
			whether they can pass on their status to their children, (see Article
			31.2).
			ARTICLE 31
			Acquisition and loss o f British Nationality
			Article 31.1 re-enacts the so called ius soli rule that was used in British
			Nationality law at all times prior to the coming into force of the British
			Nationality Act 1981. The rule is simple and certain and states that a
			person is a British National if he or she is bom in the territories with
			which that status is associated, with the very limited exceptions set out
			in 31.2.1 and .2. The advantage of the ius soli rule is its certainty. There
			is no need, for instance, to establish the immigration status of the
			parents before determining the child’s nationality. Its removal in 1983
			has left some children bom in the UK stateless.
			31.2 retains the current rule that British Citizenship automatically
			passes (as a general rule) only to the first generation bom outside the
			territory.
			31.3 and 31.4 state that Parliament shall provide for and regulate the
			further acquisition of British Nationality (eg by naturalisation). It
			would undoubtedly be necessary and desirable for there to be exceptions to the general rule that British Nationality can only be transmitted
			automatically to the first generation bom outside the territory. For
			example, exceptions should take into account the position of British
			Nationals working for institutions of the European Community. Parliament could also provide for the automatic re-classification of British
			Nationals by descent as British Nationals otherwise than by descent
			upon fulfilment of a residence requirement.
			ARTICLE 32
			Allegiance and dual nationality
			Article 32.1 provides that every British National owes a duty of
			allegiance to the Constitution rather than, as now, to the Crown.
			32.2 gives Constitutional protection to the freedom to hold dual
			nationality, a right denied in many countries but granted in the UK
			since 1949.
			COMMENTARY 25
			32.3 provides that any British National has the right to live in the
			United Kingdom. This is a basic tenet of international law, breached in
			spirit by the British Nationality Act 1981 which withdrew that right
			from those citizens it reclassified into one of the sub-categories
			abolished by this Constitution. 32.3 does not provide for British
			Nationals to have a right of abode in British Dependent Territories as
			this would not be appropriate for a Constitution which is for the United
			Kingdom only. The United Kingdom government can not presume to
			grant anyone the right of abode in a colony. The British Dependent
			Territories ’ citizens of the remaining colonial possessions (Hong Kong
			and a few small territories in the Caribbean, Atlantic and Pacific) do
			not in fact have a right of abode in their respective territories; they
			depend on the immigration laws of each territory for the opportunity
			to live there. Under 32.3 they would gain a right of abode, in the UK.
			The United Kingdom has been unable to ratify Article 12(4) of the
			International Covenant on Civil and Political Rights and Article 3 to
			Protocol 4 of the European Convention because it denies individuals
			the right to enter the State of which they are Nationals. The distinctions
			created by the Immigration Act 1971, under which some British
			Nationals and some Commonwealth citizens had right of abode while
			others in both categories did not were translated into categories of
			citizenship by the British Nationality Act of 1981. Recreating one
			category of British National therefore has implications for ‘immigration’ — except that it is not appropriate to describe the arrival of a
			country’s own nationals as immigration. The majority of those given
			British National status and therefore right of abode are unlikely to
			choose to exercise that right. There is a large number of white British
			citizens, believed to be between two and three million, who are entitled
			to live in the United Kingdom and choose not to do so. Moreover, many
			of those who do want to come to Europe may choose to use their British
			Nationality to settle, as Community Nationals, in other European
			countries where the economic opportunities and welfare benefits are
			preferable.
			ARTICLE 33
			Civic rights o f non-nationals
			Most of the rights enshrined in the Bill of Rights (Articles 2-19) apply
			to anyone within the jurisdiction of the United Kingdom, not only to
			its nationals. However, certain rights such as the right to a passport and
			to vote are granted by the Constitution to British Nationals only. Article
			33 requires Parliament to determine the extent to which non-nationals
			26 COMMENTARY
			should be entitled to civic rights and subject to the civic duties attached
			to British Nationality. Such rights and duties might include the right to
			apply for work in the public service, to vote and stand for office in local
			and national elections, and the duty to serve on a jury. The European
			Community is currently considering the harmonisation of the rights of
			non-EC Nationals across the Community and, when an EC directive is
			forthcoming, the Government will be required to introduce the agreed
			provisions.
			33.2 states that Parliament may provide for Irish and Commonwealth
			citizens to retain their existing civic rights, for instance to vote, but
			these rights are not enshrined in the Constitution.
			CHAPTER 4
			THE HEAD OF STATE
			Articles 34 to 38 establish the position, functions, duties and powers
			of the Head of State. The effect is to preserve the Monarchy but with
			all its powers derived from the Constitution and with no remaining
			prerogative powers of political significance. The replacement of the
			Sovereign by an appointed or elected official, should it ever be thought
			desirable, could be achieved by a constitutional amendment replacing
			this Article, but without alteration to the structure of the Constitution
			as a whole.
			ARTICLE 34
			Head o f State
			Article 34 establishes the office of the Head of State which is held by
			the Queen and her heirs and successors.
			Article 34.1.2 incorporates into the Constitution the arrangements
			under the Act of Settlement 1700 with two important exceptions. The
			Act of Settlement disqualifies Roman Catholics from succession to the
			throne and those who marry Roman Catholics. Secondly the principle
			of the line of descent contained in the Act of Settlement is that
			preference is given to males over females, while recognizing the right
			of primogeniture. 34.1.2 removes discrimination on grounds of
			religion or gender, but only as regards persons bom after the coming
			into force of the Constitution. The order of succession for those
			already bom is thus preserved, to avoid uproar and confusion. 34.1.3
			permits the Head of State to abdicate in favour of the Heir to the throne.
			COMMENTARY 27
			Article 34.2 provides for a Regent in the event of the Head of State’s
			incapacity or minority. It reflects the present arrangement as contained
			in the Regency Act 1937-53, but does not continue the provisions of
			section 4 of the Regency Act 1937 which prevent a Regent assenting
			to a Bill for changing the order of succession to the throne or for
			altering the Scottish Act of 1706 for securing the Protestant religion
			and Presbyterian Church Government. Under 34.2.2 Parliament is to
			legislate concerning the performance of the functions of the Head of
			State during absence abroad or temporary incapacity.
			Article 34.4.2 gives the Head of State immunity from taxation in
			respect of the Civil List, but not in relation to income or property held
			in his or her private capacity. The present practice of granting
			immunity from taxation on the Sovereign’s personal wealth is of
			relatively recent origin and we do not believe it should receive
			constitutional protection, whatever Parliament may decide from time
			to time.
			Under 34.3 the Head of State enjoys in person immunity from all civil
			suits for actions done in a private capacity and from criminal proceedings for actions in both public and private capacities. The immunity is
			personal and does not extend to anyone purporting to act on the Head
			of State’s behalf. 34.4 and 34.5 provide for the Civil List to be provided
			by Act of Parliament and for the appointment of the Head of State’s
			household. 34.5 is original: European constitutions are full of articles
			on the Royal Household, British independence constitutions are not.
			The formulation here seeks to ensure some independence for the
			Sovereign but at the same time to provide some role for the elected
			Government which is responsible for footing the bill.
			ARTICLE 35
			Functions o f the Head o f State
			Article 35 makes it clear that the Head of State acts on the authority of
			the Constitution rather than the Royal Prerogative. No-one can hide
			behind the Sovereign’s skirts and take extra-constitutional powers
			claiming to do so in the name or under the authority of the Sovereign.
			ARTICLE 36
			Duties o f the Head o f State
			Article 36 lists the duties of the Head of State. It is modelled on the
			relevant provisions of the Spanish constitution and seeks to set out the
			28 COMMENTARY
			principal prerogative powers of the Sovereign. Commonwealth monarchical constitutions do not have any such list but rely instead on
			conventions derived from the United Kingdom. The Article provides
			no scope for the exercise of discretion by the Head of State.
			ARTICLE 37
			Personal powers o f the H ead o f State
			Article 37 lists the personal powers of the Head of State which include
			offering advice to the Prime Minister, conferring personal honours and
			making statements as Head of the Commonwealth. Though the exercise of these rights is fully discretionary, and may not be questioned by
			any court, the Head of State is bound not to manifest preference for any
			political party.
			ARTICLE 38
			The power o f mercy
			Under Article 38 the Head of State may on the advice of the Minister
			of Justice exercise the power of mercy.
			ARTICLE 39
			The Privy Council
			The final article in this Chapter preserves in a modified form the Privy
			Council. The essential purpose is to provide the equivalent of a
			Council of State for situations involving war or other emergencies.
			Orders in Council which deal with the declaration of war (Article 122)
			and the suspension of the Constitution (Article 128) are to be made by
			the Sovereign on the advice of the Privy Council. The primary
			function, and the reason for maintaining the Privy Council under the
			Constitution is that it remains an important method of giving the force
			of law to acts of government through Order in Council. This power
			should remain as should the Statutory Instruments Act 1946 under
			which many Orders in Council are made.
			Article 39.1 establishes the Council and its membership which includes the Heir to the Throne and persons who hold or have held
			various offices, including the Speakers of either House of Parliament,
			the Prime Minister, members of the Cabinet and Leader of the Opposition. Others may be appointed on the advice of the Prime Minster for
			life.
			COMMENTARY 29
			39.2.2. provides for Parliament to legislate for other functions of the
			Privy Council. It now has supplementary functions which include a
			number of committees which act as appeal committees from numerous
			professional bodies, and the Universities such as the Scottish Universities Committee under section 9 of the Universities (Scotland) Act
			1889. Under Article 99 the functions of the Judicial Committee as an
			appellate court are transferred to the Supreme Court.
			CHAPTER 5
			THE EXECUTIVE
			Division 1: the Government o f the United Kingdom
			Division 1 makes provision for the executive for the United Kingdom,
			for the offices of Prime Minister and Deputy Prime Minister, for
			Ministers including the Chancellor of the Exchequer, Minister of
			Justice and Minister for International Relations, for the Cabinet, for
			Ministerial responsibility to Parliament, and for codes of conduct for
			Ministers.
			ARTICLE 40
			The executive power fo r the United Kingdom
			Article 40 provides that the executive power shall be exercised by the
			government of the United Kingdom comprised by the Prime Minister
			and Members of Parliament appointed as Minister. 40.3 provides a
			general power of action in addition to the powers conferred directly by
			the Constitution and by Acts of Parliament. Since Article 1 states that
			the Constitution provides the sole foundation for the exercise of
			executive authority, there is no residue of Crown prerogative or
			Common Law powers available to the government as at present. This
			Article provides a general competence for the government to act within
			the provisions of the Constitution. This provision is loosely based on
			clause 135 of a draft Constitution for the State of Israel drawn up by
			members of the Tel Aviv University Law School under the chairmanship of Professor Uriel Reichman which demonstrates a concise and
			workmanlike approach to many difficult points of constitutional law.
			ARTICLE 41
			The Prime Minister
			Article 41 establishes the office of Prime Minister who is to be elected
			30 COMMENTARY
			from among its members by the House of Commons and who will
			cease to hold office if no longer a member or candidate in a forthcoming election.
			This is a major departure from current constitutional law, convention
			and practice. The appointment of the Prime Minister by the Head of
			State becomes a formality and all the questions about who shall be
			summoned to form a government are thrown in to the House of
			Commons. It is a question whether the procedures for this election
			ought also to be specified by the Constitution. In line with our general
			policy of leaving Parliament to establish it own procedures, we have
			decided against inclusion in the Constitution. But others may well
			think this is too important a matter to be excluded.
			41.2.4 provides for a personal vote of no confidence in the Prime
			Minister, which is deliberately distinguished from a vote of no confidence in the government under Article 60.3 which leads to a dissolution of the House of Commons. The aim is to provide for changes of
			government without the need for elections, which may be advantageous in the more fluid parliamentary situation under an electoral
			system based on some form of proportional representation.
			Again, opinions may divide sharply on this point: some believe that the
			personal vote of no confidence would encourage irresponsible behaviour by small parties, which will have the prospect of bringing down
			governments without the prospect of having to fight an election. It is
			not clear however that the prospect of an election would hold any
			terrors under a PR system.
			ARTICLE 42
			Deputy Prime Minister
			Article 42 provides for a Deputy Prime Minister to perform the
			functions of the Prime Minister when the Prime Minister is unable to
			perform them or the office is vacant. The last provision would cover
			death in office or the loss of a vote of confidence and provide continuity
			of the government until a new Prime Minister could be elected.
			ARTICLE 43
			Ministers
			Article 43 establishes the office of Minister. Their numbers and
			responsibilities are determined by the Prime Minister, but must include
			COMMENTARY 31
			the Chancellor of the Exchequer, the Minister for Justice and the
			Minister for International Relations, who are to be members of the
			House of Commons. Other Ministers may be drawn from either
			House. Those in the Second Chamber will stand for election at
			different times from their colleagues in the Commons, but are subject
			to the same conditions for ceasing to hold office.
			The Article specifies that there shall be a Minister of Justice because
			he or she has responsibilities under the Constitution in relation to the
			appointment of the Judiciary (see Schedule 5). 43.1.3.2 cites the
			Minister’s responsibilites as ‘courts and legal services’ and, although
			we have not felt it appropriate to set out the responsibilities in detail in
			the Constitution, it is our intention that the Ministry of Justice would
			take over the legal functions now carried out by the Lord Chancellor’s
			Department (which would cease to exist) and those of the Home
			Office. We take the view that the Home Office’s current responsibility
			for criminal law and procedure, and for the enforcement by statutory
			bodies of aspects of the civil law protecting individual rights such as
			the race discrimination legislation, sit uneasily with its control functions such as the police and immigration services. Likewise, the Lord
			Chancellor’s direct responsibility for the appointment of the Judiciary
			and his position as a Law Lord, sit uneasily with his political role as a
			member of the Government. This fragmented, and in some instances
			inappropriate distribution of functions should be brought to an end
			with the creation of a single strong Ministry responsible for all of the
			‘Justice’ functions, separate from any responsibility for law enforcement. At present, some legal functions are the responsibility of the Law
			officers — the Attorney General and Solicitor General. Under the
			Constitution the role of the Attorney General is defined in Article 47
			and that of the Directors of Public Prosecutions and Civil Prosecutions,
			offices within the Ministry of Justice, in Articles 48 and 49.
			ARTICLE 44
			The Cabinet
			Article 44 establishes the Cabinet and its membership, gives it general
			direction and control of the government, and makes it collectively
			responsible to Parliament. This limits collective responsibility to the
			Cabinet, that is to those ministers who are in fact collectively involved
			in making government decisions. Other ministers will be bound by
			other ties and loyalties. The present convention which extends to every
			Tom, Dick and Harry associated with a Minister would lapse.
			32 COMMENTARY
			The term ‘general decision and control’ is drawn from the Constitution
			of Malta, one among many Commonwealth independence constitutions in which draftsmen have tried to capture the essence of the
			unwritten constitution.
			44.3 gives a constitutional basis for Cabinet committees and requires
			that Parliament must be informed of their purposes, terms of reference
			and duration. Much government business is effectively discharged by
			committees and the present mystery surrounding their existence is as
			dangerous as it is absurd.
			ARTICLE 45
			Ministerial responsibility
			45.1 affirms the full accountability of the Head of Government (i.e. the
			Prime Minister) both to Parliament and to the Head of State. It
			complements provisions relating both to open government and to
			individual ministerial responsibility elsewhere in the Constitution.
			Failure by the Head of Government to abide by the terms of this
			provision might form the basis of a complaint to the Constitutional
			Commission (Article 76).
			Much current ministerial and civil service practice, and most parliamentary procedure, is based upon the antique constitutional convention of individual ministerial responsibility. This means, in theory, that
			ministers are accountable to Parliament for all that happens in their
			departments (see below) and must carry the blame for any maladministration, misconduct, etc., on the part of their civil servants. However,
			most contemporary commentators agree that there is a huge gap
			between theory and practice. In part this is because the growth of
			government functions, and of the size and organisational complexity
			of the civil service, has made it impossible for ministers to know about,
			let alone control, more than a small fraction of what goes on in their
			departments. In part it is also because ministers and civil servants find
			it both convenient and easy (in the absence of Freedom of Information
			legislation, and because of the government’s capacity to shelter behind
			its parliamentary majority) to get away with telling Parliament as little
			as possible.
			45.2, while recognising that the scale and complexity of modem
			government means that ministers cannot be expected to exercise
			detailed control of all departmental business (hence the phrase ‘general direction and control’), reaffirms their present obligation to give
			COMMENTARY 33
			‘regular, full and accurate account’ to Parliament. This provision is
			linked to others in this Constitution relating to the relationship between
			executive and legislature.
			Thought was given to the desirability of including, alongside Departments, explicit reference to Executive Agencies, such as those being
			set up under the ‘Next Steps’ programme. The development of such
			bodies raises important issues to do with ministerial accountability and
			parliamentary scrutiny. Article 114.6 requires Parliament to attend to
			this problem. Agencies would also be covered by the terms of Articles
			118 and 119 (Administrative Justice).
			45.3 reinforces 45.2 by imposing positive constitutional obligations
			upon Ministers to spell out fully to Parliament the scope of their
			responsibilities. Failure to do so might form the basis of a complaint
			to the Constitutional Commission. In this and other contexts it should
			also be noted that a likely by-product of changes in the electoral
			system, as provided elsewhere, would be to weaken the expectation
			that Ministers, wishing to evade responsibility, could usually hide
			behind the government’s hitherto more or less guaranteed parliamentary majority.
			ARTICLE 46
			Code o f Ministerial Conduct
			Since the second world war, Ministers have been issued with successive editions of a document entitled Questions o f Procedure for
			Ministers. This is treated as a highly confidential document, though its
			contents have been extensively leaked. Much of it has to do with the
			preservation of Cabinet secrecy and collective ministerial responsibility. Article 46 recognises the need for a formal Code of ministerial
			conduct (not necessarily confined to the ground covered in Questions
			o f Procedure); also that such a document should be in the public
			domain and subject to parliamentary approval (including approval of
			any revisions or amendments). Failure to abide by the Code might form
			the basis of a complaint to the Constitutional Commission (Article 76).
			The Constitutional Commission would consider complaints by members of both Houses (including parliamentary committees) concerning
			alleged constitutional transgressions by the Prime Minister or Ministers. Complaints would be ‘filtered’ by the Speakers of the two
			Houses, thus reducing the risk that the procedure would be abused for
			routine political point-scoring. Such complaints might, for instance.
			34 COMMENTARY
			concern the withholding of information from Parliament or breaches
			of the Code of Conduct for Ministers.
			Division 2: Legal Matters
			ARTICLE 47
			Attorney General
			Departing from the current practice, Article 47 requires the Attorney
			General to be a professional appointment; a senior lawyer who is not
			a member of Parliament. The intention is to end the Attorney General’s
			dual function as both a member of the Government and legal adviser
			to that Government, to separate the political and legal roles. As a
			professional he or she will advise the Government, attending Cabinet
			meetings but not voting. The Attorney General, under 47.4.2 has
			responsibility for the conduct of litigation to which the Government is
			a party, but has no part in criminal prosecutions, responsibility for
			authorising certain prosecutions under the Official Secrets Act or
			Public Order Act, for instance, passing to the Director of Public
			Prosecutions (Article 48). The Attorney General is appointed by the
			Prime Minister and can be removed by the Prime Minister at any time
			(47.3.3). He or she ceases to hold office if a new Prime Minister is
			elected (47.3.4).
			ARTICLE 48
			Director o f Public Prosecutions
			Article 48 establishes the office of Director of Public Prosecutions
			(DPP) within the (newly created) Ministry of Justice and requires the
			Scottish and Northern Ireland Assemblies to establish an office with
			equivalent powers. The DPP, a senior lawyer, is appointed by the
			Minister of Justice (see Article 43) on the recommendation of the
			Judicial Services Commission (48.2) and has the same security of
			tenure as a judge.
			The Director of Public Prosecution’s role, under 48.4, acting in the
			public interest, is to initiate, authorise or take over criminal proceedings before any United Kingdom court or court in England and Wales,
			or to discontinue any such proceedings (except an appeal by someone
			who has been convicted). In exercising these powers he or she is not
			subject to anyone’s direction. That is, although the office is within the
			Ministry of Justice the Director of Public Prosecutions is not subject
			to the Minister’s instruction or accountable to the Minister for his or her
			decisions.
			COMMENTARY 35
			ARTICLE 49
			Director o f Civil Proceedings
			Article 49 establishes an entirely new office, that of Director of Civil
			Proceedings, (DCP) a step advocated by Sir Harry Wolff in “Public
			Law-Private Law: Why the Divide? A Personal View” (1986) Public
			Law 220-238.
			As in Article 48, the Scottish and Northern Ireland Assemblies are
			required to make similar provision in their areas. The DCP, an office
			within the Ministry of Justice, is appointed by the Minister of Justice
			on the recommendation of the Judicial Services Commission, again
			from persons having rights of audience in the superior courts of the
			UK. The DCP has the same tenure as a judge and is not subject to the
			Minister’s control nor accountable to the Minister for his or her
			decisions.
			Under 49.4, the DCP, acting in the public interest, has the power to
			initiate or intervene in Civil proceedings (before a UK court or court
			in England and Wales). 49.4.1. cites in particular the DCP’s role in
			relation to initiating or intervening in proceedings under the Bill of
			Rights, proceedings in which the UK’s compliance with treaty obligations or EC law is at issue, or judicial review cases.
			Division 3: International Relations
			ARTICLE 50
			European Community law
			In conjunction with Articles 1.2 and 53.2 this Article ensures the direct
			application and effect of European Community Law by giving
			constitutional force to the appropriate provisions of the European
			Communities Act 1972, as amended by the European Communities
			(Amendment) Act 1986. As indicated in the commentary on Article 1
			this does not commit the United Kingdom beyond the present obligations, but allows for further development. It also ensures that any such
			development must be treated as a constitutional amendment which
			could not be included except by the special procedures established by
			Article 69. Together with Article 51, requiring the approval of
			Parliament for treaties, this would prevent a repetition of the remarkable way in which the original European Communities Act 1972 was
			put through Parliament with a bare majority, to be subjected after the
			event to an advisory referendum in 1975.
			36 COMMENTARY
			ARTICLE 51
			International relations
			This Article gives the Government powers to conduct international
			relations, maintain diplomatic representatives and conclude treaties
			subject to Parliamentary approval. Again the need for this provision
			arises from the absence of the prerogative powers of the Crown. It is
			modelled on clauses 103 to 109 of the draft Israeli Constitution cited
			above, (see commentary for Article 40) but 51.3 goes further by
			providing that a treaty once approved by Parliament takes effect as part
			of domestic law. Parliamentary participation in treaty making removes
			the need for legislation and perhaps also removes the temptation from
			government to sign treaties to which it has no intention of giving effect.
			CHAPTER 6
			THE LEGISLATURES
			Part 1: The Legislative Power
			Part 1 of Chapter 6 vests the legislative power in the United Kingdom
			in Parliament and in elected assemblies for Scotland, Wales, Northern
			Ireland and twelve English Regions, and provides for the division of
			legislative competence between Parliament and the Assemblies and
			for the resolution of conflicts between them.
			What is proposed is a modified form of federalism which attempts to
			realise the principle of subsidiarity. Parliament is given exclusive
			competence in certain matters but these are matters on which it has now
			or will in the future have to share its powers with the European
			Community. It can if it wishes delegate any of its extensive powers to
			the Assemblies. On the other hand, the competences given to the
			Assemblies are not exclusive because Parliament can legislate in these
			matters under Article 55, if legislation by an Assembly would be either
			inadequate or have spillover effects outside its own jurisdiction. This
			formula recognises the fact that whatever federal constitutions may
			say, there is seldom a clear cut division of competence in practice. The
			aim is not to determine what is the appropriate level for a particular
			function, to be carried out, such as the protection of the environment,
			but to determine which aspects of that function are best carried out at
			what level. Under the system proposed here, environmental protection
			falls within the competence of the Assemblies because that is the level
			at which the bulk of legislation would have to be implemented. But
			COMMENTARY 37
			both the European Community and Parliament would have power to
			legislate on matters such as air pollution where national or regional
			boundaries are irrelevant to the problems to be addressed.
			ARTICLE 52
			The legislative power
			Article 52 vests the legislative power in Parliament and the Assemblies. The Assemblies therefore have constitutional standing, unlike
			local authorities at present, and their powers cannot be altered save by
			a process of amendment which requires their consent (Article 69.3).
			Parliament and the Assemblies may delegate their legislative powers,
			but may not alienate them.
			ARTICLE 53
			Exclusive legislative powers o f Parliament
			Article 53 sets out the exclusive powers of Parliament on a range of
			matters affecting the internal unity and the external relations of the
			United Kingdom, which include the Head of State, Parliament itself,
			elections generally, membership of the European Community, international relations, defence and security, citizenship, taxation and social
			security and a variety of matters affecting the United Kingdom as a
			common market.
			These are based on the exceptional matters listed in the Northern
			Ireland Constitution Act 1973 and subsequent proposals for Scotland.
			Parliament also has exclusive powers to legislate where necessary to
			give effect to treaties or European Community obligations and can
			delegate to an Assembly on any matter falling within its exclusive
			powers (53.3).
			ARTICLE 54
			Legislative powers o f Assemblies
			Article 54 provides the Assemblies with powers to make laws over a
			wide range of policy areas from agriculture to transport. Under Article
			79.4 executive powers are granted on the same matters. The bulk of
			those are matters which fall within the powers of the Northern Ireland
			Assembly and the executive responsibilities of the Scottish Office.
			Recent proposals for Scotland eg, Mr Dewar’s 1987 Bill, specify those
			matters in detail. Here the powers are given in general terms subject
			to important conditions under Articles 54.4 and 55.
			38 COMMENTARY
			Under Article 54.2, the Assemblies for Scotland and Northern Ireland
			are given additional powers to legislate for their own legal systems,
			including police and prisons. England and Wales are for this purpose
			retained as a single jurisdiction, which creates an anomaly, a special
			instance of the ‘West Lothian question’. We concluded that there
			would be serious disadvantages in breaking up the court system and no
			compensating advantages in terms of local administration and accountability. Under Article 125 Parliament may provide for a decentralized structure of governance for the police.
			ARTICLE 55
			Concurrent legislative powers
			Assemblies may amend or repeal laws made by or under Acts of
			Parliament before the Constitution comes into force, but may not
			legislate beyond their own boundaries, or in a way which amends the
			Constitution or is inconsistent with any provision of European Community Law. But the most important constraint in practical terms on
			the Assemblies’ power of legislation is the provision in Article 55 for
			the exercise of concurrent powers by Parliament under certain conditions. These provisions are based on Article 72 of the Constitution of
			the Federal Republic of Germany (1949). The two conditions for the
			exercise of concurrent powers by Parliament essentially concern
			boundary problems: where Assemblies either cannot regulate adequately by themselves or create external repercussions by so doing.
			Intervention by Parliament might be disputed by Assemblies on the
			facts and it would no doubt take some time to establish what ‘adequately’ meant in any particular circumstance or what level of external
			repercussion merited intervention. Subsidiariaty is bound to involve
			conflict, but at least Assemblies will have a secure constitutional base
			from which to argue, negotiate or litigate with central government and
			the European Community.
			55.2 provides that when Parliament exercises concurrent powers of
			legislation, the executive power shall remain with the Assemblies or
			local authorities, unless expressly provided otherwise. The aim here
			is to keep the administration as far as possible decentralized. Article
			85(1) of the German Constitution provides an inspiration if not a
			model.
			COMMENTARY 39
			ARTICLE 56
			Conflicts o f legislation
			Assembly Acts do not require the consent of the Head of State, nor is
			there any pre-assent scrutiny by the UK government or any other body.
			This removes potential conflicts from the political to the judicial arena,
			a feature of the Constitution discussed in the introduction. Article 56
			provides for the superiority of Acts of Parliament over Assembly Acts
			where there are inconsistencies between them. This is a standard
			provision of federal constitutions and should assist the courts to
			resolve cases involving conflict of laws in the matters covered by
			concurrent powers. Where proceedings are initiated by the United
			Kingdom government or an Assembly Executive questions of vires
			would be subject to the original jurisdiction of the Supreme Court
			under Article 98.2.
			Part 2: Parliament
			Part 2 establishes Parliament, provides for its membership, the qualifications and disqualifications for membership, expiry and dissolution
			of the two Houses, powers and privileges, Speakers, salaries and
			facilities, declarations of interest and legislative powers.
			Many of the provisions represent a continuation of existing law
			practice and convention. The main improvements in Parliament’s
			position, such as the election of the Prime Minister by the House of
			Commons or the power to approve treaties are dealt with elsewhere
			(Articles 41 and 51). Important changes in the method of electing
			Parliament are introduced in Chapter 8. The most important innovations in this chapter are the replacement of the House of Lords by an
			elected Second Chamber and the enhanced powers which this Chamber has in relation to legislation to amend the Constitution or to give
			direct effect to its provisions. The House of Commons retains its
			primacy in relation to Money Bills and ordinary legislation, though the
			period by which the Second Chamber can delay ordinary legislation is
			extended.
			40 COMMENTARY
			Division 1: Composition o f Parliament
			ARTICLE 57
			Parliament
			Article 57 establishes Parliament. It consists of the Head of State and
			two Houses and its general constitutional function is to legislate and to
			hold the government of the United Kingdom to account.
			ARTICLE 58
			Membership
			Elections are to be conducted in accordance with other provisions of
			the Constitution, at fixed times and subject to supervision by the
			Electoral Commission, an enhanced constitutional version of the
			Boundary Commission (Articles 83, 88 and Schedules 3).
			58.2 reduces the number of members for the Commons to between 475
			and 525, the exact number to be determined by Act of Parliament. This
			reflects the view that with the substantial transfer of domestic responsibilities to the Assemblies fewer members will be necessary to
			shoulder the legislative and constituency burden. Likewise 58.5 fixes
			the number of Ministers at not more than one tenth of the membership
			of either House, rather less than the maximum figure of 95 Ministers
			now imposed on the House of Commons by the House of Commons
			Disqualifications Act 1975. The limitation is necessary to avoid
			executive domination, or collective ministerial regimentation, of parliamentary debates and proceedings. Whereas the existing House of
			Lords contains over 1,100 peers entitled to sit, the Second Chamber
			would have a much smaller membership of between 225 to 265, but as
			these will be elected full time politicians this should provide an
			adequate working House.
			58.6 states the existing practice that members vote only in person. 58.4
			is a new provision, arising from the election of the Second Chamber,
			which prevents a member of one House standing for election or sitting
			as member of the other (the model is Article 43 of the Australian
			Constitution).
			ARTICLE 59
			Qualifications and disqualifications fo r membership
			Article 59 deals with qualification and disqualification for membership of the either House. Eligibility for membership is similar to
			COMMENTARY 41
			existing law affecting the Commons, except that the age limit is
			reduced from 21 to 18 years and candidates must be citizens of the
			United Kingdom, thus excluding Commonwealth and Republic of
			Ireland citizens at present qualified, and also nationals of other
			European Community States. Other grounds for disqualification are
			public office, bankruptcy, mental illness, conviction for a criminal
			offence, responsibilities for elections, or conviction for an electoral
			offence.
			59.3 makes plain that membership of either House ceases at the next
			expiry or dissolution of that House, and that the existing power of the
			Commons to expel any of its members is expressly extended to cover
			both Houses (a resolution of the House of Lords as a legislative body
			could not exclude a member of that House permanently: see Erskine
			May 21 st edition p.40). Any member would be permitted to vacate his
			or her seat by way of a simple letter of resignation to the Speaker of the
			member’s House, in place of the existing Commons method of
			fictitious acceptance of the offices of Bailiff or Steward of the Chiltem
			Hundreds or the Manor of Northstead.
			ARTICLE 60
			Expiry and dissolution o f Houses o f Parliament
			Article 60 establishes a fixed term of four years for each House. Under
			Schedule 3 the elections of the two Houses will be staggered after the
			first general election following the adoption of the Constitution.
			Elections to each House will take place every four years, at a time
			known to all in advance, whereas at present a Prime Minister is enabled
			under the prerogative to choose any date for an election within a five
			year maximum limit.
			60.2 and 60.3 provide for early dissolution of the House of Commons
			in the event of the failure of the House to elect a Prime Minister, or the
			loss of a vote of confidence in the government.
			60.4 seeks to avoid misuse of these provisions by limiting the duration
			of a newly elected House to the remainder of the term of its predecessor. A similar provision may be found in Mr Benn’s Commonwealth
			o f Britain Bill (1991). The Second Chamber will not be dissolved.
			In place of the anachronism of the 1694 Triennial Act providing a three
			year maximum between the termination and summoning of Parliament, 60.5 puts into legal form the requirement for the simultaneous
			42 COMMENTARY
			termination and summoning of the House of Commons and sets a time
			limit of a month for the first meeting of the House following a general
			election, in order to keep the period in which no House of Commons
			exists to a minimum.
			Division 2: Powers and Procedure
			ARTICLE 61
			Powers and privileges o f Parliament
			At present “the law and custom of Parliament” is a matter of common
			law and in part it is based on the internal practice of the two Houses.
			Article 61 provides for the continued existence of the unwritten law
			and the inherent jurisdiction and power of both Houses to determine
			their own proceedings and privileges. Whilst this is expressed to be
			subject to any modifications made in the Constitution, 61.1.2, states
			that the freedoms and restrictions contained in the Bill of Rights shall
			not affect parliamentary practice.
			61.2 restates Article 9 of the 1689 Bill of Rights governing the freedom
			of members of Parliament to speak out in the conduct of Parliamentary
			business without fear of reprisal.
			61.3 gives constitutional recognition to the inherent power of Parliament to summon witnesses and request the production of documentary
			evidence. We expect that the Commons’ Select Committee system
			will grow in importance and there will be a marked development of
			Select Committees in the Second Chamber, so that this power to send
			for persons, papers and records will be increasingly central to the task
			of supervising government policy and administration.
			ARTICLE 62
			The Speakers
			Article 62 requires the election of a Speaker for each House of
			Parliament. Standing orders of both Houses will regulate procedure,
			including the provision of deputies for the Speakers, the election of the
			Speakers and their deputies and the appointment of Counsel as legal
			advisers. The Speaker of the Second Chamber will operate by analogy
			with the traditions of the Speaker of the Commons, rather than the Lord
			Chancellor who presides in the House of Lords. The Speakers will
			represent their respective Houses with political impartiality, and their
			general functions will be to regulate debates and enforce the rules of
			their House, and to exercise such powers as their House through
			COMMENTARY 43
			standing orders confers upon them or are otherwise conferred by law.
			They have for instance an important responsibility in the certification
			of Bills: Money Bills under Article 67, Public Bills under Article 68,
			Bills for amendment of the Constitution under Article 69 and
			Constitutional Bills under Article 70. Their certificates are conclusive
			and may not be challenged except in the Supreme Court.
			ARTICLE 63
			Salaries and facilities
			Article 63 emphasises the full-time nature of a Member’s responsibilities. Assessment of Members’ salaries should be on this basis so that
			Members may rely upon their parliamentary salary as their sole source
			of income and not be compelled to seek outside work which diminishes
			the time available for parliamentary and constituency responsibilities.
			63.2 requires that the standing orders of both Houses shall ensure that
			their sittings are held at times convenient to all persons who are eligible
			to be members. The main beneficiaries should be women, many of
			whom cannot contemplate membership under the present arrangements.
			ARTICLE 64
			Declarations o f interest
			Outside work will continue to be permitted including the holding of
			consultancies and directorships in commerce and industry, and also
			sponsorship of MPs by trades unions. Article 64 lays down the existing
			regulations for the declaration of all outside financial interests of
			members. 64.1 adopts the resolution of the House of Commons on oral
			declarations in 1974 (slightly modified) for both Houses. 64.2.1
			extends the existing Commons Register of Members’ interests to both
			Houses and 64.2.2 requires that there shall be a joint select committee
			of both Houses to examine matters connected with the register and to
			make recommendations to Parliament about them.
			Division 3: Legislative powers
			Division 3 makes provision for the legislative powers of the two
			Houses. The most important innovation lies in the powers of the
			Second Chamber with regard to amendments to the Constitution and
			Constitutional legislation, that is statutes giving direct effect to provisions of the Constitution, such as those concerning elections. In these
			44 COMMENTARY
			matters the Second Chamber has equal status with the House of
			Commons and can in effect veto amendments to the Constitution. The
			Second Chamber is also given extended delaying power over Public
			Bills other than Money Bills. In other respects the relationship
			between the Houses follows the provisions of the 1949 Parliament Act.
			ARTICLE 65
			Introduction o f Bills
			Article 65 codifies the current rules governing the introduction of
			Bills: namely that Public Bills may be introduced by any Member
			(65.1.1), but that any Bill which involves taxation, public expenditure
			or debt requires the consent of the Cabinet (65.3). This is a fundamental principle of the present Constitution and guarantees the government’s control over fiscal and economic policy. The Government is not
			however given a monopoly over the introduction of legislation, as in
			many other Constitutions, and provision is made in 65.2 for the
			continuance of private legislation subject to the standing orders of both
			Houses. 65.1.2 encapsulates the regular procedure for Bills to become
			law, which is departed from for purposes of constitutional amendment
			and legislation under Article 69, for Money Bills under Article 67, and
			for certain other Bills under Article 68.
			ARTICLE 66
			Subordinate legislation
			Article 66 extends parliamentary scrutiny of subordinate legislation.
			Under 66.1 a Standing Committee is set up in each House with specific
			responsibilities for advising Members on enabling clauses in draft
			primary legislation, as recommended in the Donoughmore Report on
			Ministers’ Powers in 1932 but never adopted, and on certain statutory
			instruments laid before Parliament under terms of reference similar to
			those of the Joint Select Committee on Statutory Instruments.
			66.2 preserves the existing powers of either House to annul or disapprove subordinate legislation. We have also considered the inclusion
			of a power to amend subordinate legislation, but have not been able to
			explore the ramifications sufficiently to recommend it with confidence.
			ARTICLE 67
			Restrictions on the powers o f Second Chamber as to M oney Bills
			The provisions of the Parliament Act 1911 over Money Bills are
			COMMENTARY 45
			retained in Article 67, consistent with the principle that national
			finance is the special responsibility of the House of Commons, so that
			the Second Chamber may only delay such Bills for a period of one
			month.
			ARTICLE 68
			Restrictions on the powers o f Second Chamber as to certain Bills
			Under Article 68 the revising role of the Second Chamber over
			ordinary public legislation, with a power of delay of one year over
			measures passed by the Commons, is retained but the terms of the
			Parliament Acts 1911 and 1949 are replaced by the more sophisticated
			machinery provided for in the Parliament (No. 2) Bill 1969 prepared
			by the Labour Government at that time (withdrawn after securing its
			second reading under pressure of parliamentary time).
			68.5.3 extends the period of delay proposed in that Bill from 60 to 120
			parliamentary days, thus strengthening the power of the Second
			Chamber to reflect its new position as an elected rather than hereditary
			and appointed body.
			Division 4: Constitutional amendments and legislation
			The Second Chamber is entrusted by the Constitution with special
			responsibility for the review of Bills which include constitutional
			matters or human rights. Bills to amend the Constitution require the
			approval of the Second Chamber with a special two-thirds majority
			under Article 69. Other Bills of a constitutional nature, as defined in
			Article 70 and certificated as such by the Second Chamber’s Speaker,
			will require the consent of the Second Chamber by simple majority.
			This category of legislation will include all Bills affecting human
			rights and freedoms, as well as measures affecting the structure of
			government or giving detailed effect to the Constitution.
			ARTICLE 69
			Am endm ent to the Constitution
			Article 69 provides that Parliament may amend the constitution by
			legislation, but that this must be passed by a qualified majority (two
			thirds) in both Houses. In addition to creating a higher hurdle for
			constitutional amendments than for ordinary statutes, this gives the
			Second Chamber a veto over amendments, as a safeguard against
			temporary majorities in the Commons. This provision should be read
			46 COMMENTARY
			alongside the powers of the Second Chamber in relation to constitutional
			legislation, that is legislation on elections and so forth which Parliament is obliged by the Constitution to provide (Article 70). Together
			these provisions give the Second Chamber a strong constitutional role,
			backed by the legitimacy of direct elections, which may go some way
			to restoring its reputation as the watchdog of the Constitution.
			Article 69 provides two levels of qualified majority. Under 69.1 the
			core provisions of the Constitution can only be amended by a two
			thirds majority of all the members of both Houses. The provisions
			include:
			Chapter 1:
			Chapter 2:
			Chapter 3:
			Chapter 4:
			Chapter 5:
			Chapter 6:
			Chapter 7:
			Chapter 8:
			Chapter 9:
			Chapter 10
			Chapter 11
			Chapter 12
			The Constitution as foundation of power in the
			United Kingdom
			Fundamental Rights and Freedoms
			Nationality
			Articles 34-36 Head of State
			Articles 40 Executive
			Articles 41 Prime Minister
			Articles 44 Cabinet
			Articles 47-49 Legal officers
			Article 50 European Community Law
			Articles 52-57 Legislative powers and
			Parliament
			Article 70 Constitutional Bills
			Article 78 and 79 Assemblies
			Schedules 1 and 2
			Articles 83-86, 88 Elections
			89 and Part 1 of
			Schedule 3
			and Schedules 4 Judiciary
			and 5
			The Public Services
			Administrative Justice
			Protection of the United
			Kingdom
			COMMENTARY 47
			Other provisions of the Constitution may be amended by a two thirds
			majority of both Houses present and voting, provided the two thirds
			constitutes at least half the membership of each House.
			69.3 provides that no amendment to the Constitution which affects the
			powers and responsibilities of the Assemblies shall come into force
			unless it has been ratified by a majority of the members of two thirds
			of the Assemblies. Parliament cannot therefore change the position of
			the Assemblies without their consent.
			69.4 deals with the question of secession: no part of the United
			Kingdom may be allowed to secede or be excluded without a referendum of its voters, conducted and supervised by the Electoral Commission. This Article does not provide any method to initiate an amendment for secession other than a Bill introduced into Parliament like
			other amendments. But 69.7 provides that these provisions as they
			effect Northern Ireland must be read subject to Article 1 of the Anglo
			Irish Agreement which states:
			The two Governments
			(a) affirm that any change in the status of Northern Ireland would
			only come about with the consent of a majority of the people
			of Northern Ireland;
			(b) recognise that the present wish of a majority of the people of
			Northern Ireland is for no change in the status of Northern
			Ireland;
			(c) declare that, if in future a majority of the people of Northern
			Ireland clearly wish for and formally consent to the establishment of a united Ireland, they will introduce and support in
			the respective Parliaments legislation to give affect to that
			wish.
			This supposes a means of consulting the wishes of the people of
			Northern Ireland prior to legislation and commits the government of
			the United Kingdom to introduce and support such legislation. It
			cannot commit Parliament to passing the legislation to which the
			qualified majorities in both Houses might prove a formidable obstacle.
			It is a question whether the position of Northern Ireland should be
			treated differently for purposes of amendment in the light of the treaty
			obligations. The significance of Article is discussed at length in TM
			Hadden and Kevin Boyle The Anglo-Irish Agreement: Commentary,
			Text and Official Review 1989 pp 18-22.
			48 COMMENTARY
			ARTICLE 70
			Constitutional Bills
			Article 70 provides a special procedure for the passage of Constitutional
			Bills, that is Bills as defined in 70.3 which are required to be enacted
			by the Constitution, which give detailed effect to any Article of the
			Constitution, which affect any Article of the Bill of Rights (Chapter 2),
			or affect the principal institutions established by the Constitution: eg
			Head of State. Such Bills are required to be passed by a majority of all
			members of both Houses on their final reading. As noted above this
			gives the Second Chamber equality with the Commons on Constitutional
			questions.
			Division 5: Public Finance
			ARTICLE 71
			Public funds
			Article 71 defines and regulates the Cconsolidated Fund which is
			currently governed by the Exchequer and Audit Departments Act 1806
			as amended by the National Loans Act 1968. The Consolidated Fund
			is defined as the “Account of Her Majesty’s Exchequer” and forms one
			general fund kept by the Treasury at the Bank of England.
			The Article also seeks to clarify other accounts or funds which are
			provided for by the Constitution. Currently the National Loans Fund
			Act 1968 provides that all money raised by the creation of debt is
			payable into the National Loans Fund. The constitutional importance
			of the Article is the attempt to regulate all such funds by Statute. Thus
			funds outside the supply system such as Trading Funds (The Government Trading Funds Act 1973), the National Insurance Fund (Social
			Security Act 1965) are required to have statutory authority under the
			Constitution.
			71.3 provides the authorization requirements for expenditure from the
			Consolidated Fund. The House of Commons votes the necessary
			supply and agrees to payments out of the Consolidated Fund. The
			estimates must be approved by the House of Commons.
			71.4.1 and 2 seek to place all public funds under the Constitution and
			the authority of statute.
			COMMENTARY 49
			ARTICLE 72
			Contingencies F und
			Article 72 provides for a Contingencies Fund and the legal authority
			for such a fund is therefore provided under the Constitution. The
			Treasury authorises issues out of the Fund subject to the limits set on
			the capital of the Fund by the Contingencies Fund Act 1974. Currently
			the maximum cost is set at 2% of the total of authorised supply
			expenditure in the preceding financial year. No final charge is
			permitted to rest on the Fund. The necessary Parliamentary authority
			is required to enable repayment to be made. When advances from the
			Fund are repayable from rates, the necessary provision should normally be sought in the next batch of Supplementary Estimates.
			The Treasury will continue to exercise its system of internal control
			and regulation over the Fund.
			ARTICLE 73
			Appropriation
			Article 73 regulates withdrawals from the Consolidated Fund, in the
			Treasury’s terms “issues out of the Consolidated Fund”. An important
			element in the regulation of the fund is the internal control exercised
			by the Treasury. This includes the submission to the Treasury of the
			annual estimates and supplementary estimates. 73.5 permits virement.
			This arises when the total expenditure on any service may not exceed
			that granted by Parliament, but a trade off may be allowed between
			subheads of expenditure within the main head. The exercise of
			virement is subject to Treasury control and is now recognised by the
			Constitution. For the rest the Article encapsulates present procedures
			for appropriations.
			ARTICLE 74
			Budget
			Article 74 requires the Chancellor of the Exchequer, in presenting his
			budget to the House of Commons, to present details of Government
			policy in relation to the raising of revenue at the same time as
			presenting its policy in relation to expenditure. Revenue can only be
			raised under the authority of an Act of Parliament.
			50 COMMENTARY
			ARTICLE 75
			Comptroller and Auditor General
			Article 75 recognises the importance of The Comptroller and Auditor
			General under the Constitution. By statute, the Exchequer and Audit
			Departments Acts 1866, 1921 and the National Audit Act 1983, the
			Comptroller and Auditor General enjoys independence. This is
			recognised in the Constitution and his mode of appointment remains
			regulated by the National Audit Act 1983. The functions of the
			Comptroller and Auditor General are provided under the National
			AuditAct 1983 to include powers to certify accounts of all government
			departments and a wide range of public sector bodies; to examine
			revenue and store accounts; and to report such examinations to
			Parliament. He also has a wide range of powers to examine the
			economy, efficiency and effectiveness (ie a VFM audit) in the use of
			the resources used by those bodies he audits or to which he has rights
			of access.
			Division 6: Constitutional Commission
			ARTICLE 76
			Constitutional Commission
			Article 76 establishes a Constitutional Commission which is in effect
			a joint committee of the two Houses of Parliament, but with the power
			under 76.1.3 to coopt additional members up to one third of its
			membership. The aim is to allow the Commission to avail itself of the
			services of learned and distinguished persons and thus to add weight
			and impartiality to its scrutiny of constitutional behaviour. Its general
			responsibility is to monitor the working of the Constitution and to
			review and investigate, through its Integrity Committee, complaints
			about the propriety, constitutional and otherwise, of Ministers. The
			Commission is not intended to preclude and pre-empt legal proceedings before the courts and rules may need to be worked out to define
			the functional relationship between the Commission and the courts.
			The establishment of the Commission however reflects our general
			view that the business of Parliament should be left as much as possible
			to Parliament and an expectation that an adverse report from the
			Commission would prove a sufficient sanction on errant ministers.
			COMMENTARY 51
			ARTICLE 77
			Integrity Committee
			Under Article 77 an Integrity Committee is drawn from amongst
			members of the Constitutional Commission who are members of
			Parliament to investigate complaints of impropriety either upon
			complaint or on its own initiative. The Committee has the powers of a
			tribunal of inquiry and reports to the relevant House of Parliament
			which must consider the report within 60 days of receiving it.
			CHAPTER 7
			NATIONAL AND REGIONAL GOVERNMENT
			ARTICLE 78
			Assemblies
			78.1 and Schedule 1 provide that there shall be Assemblies for
			Scotland, Wales, Northern Ireland and the regions of England. The
			Schedule provides that there should be twelve regions for England.
			The proposals for the English Regions are bound to be controversial
			and require detailed justification which we will provide in a separate
			report. In brief, we have put more emphasis on cultural factors such as
			regional or local identity and on social and economic geography than
			on uniformity of population or areas; in fact we have assumed that a
			uniform system is not only unnecessary but would run counter to the
			purpose of decentralisation. This is reflected in the provisions for local
			government which allow also for regional diversity. The range of
			population size is from 1.5m. for Northern Ireland and the South West
			to 6.5m. for London and the North West. This range of population is
			considerably smaller than for provinces in Germany (650,000 to
			16.5m.), Italy (100,00-8,8m.), Australia (450,000-5.5m.) or France
			(235,000 to 10m.). We have also assumed that there is no optimum size
			of population for the performance of any government functions and no
			categorical need to tailor regions to produce a particular population.
			We have followed existing county boundaries, unless there is a strong
			case for departure. We have tried to ensure that there is no place in any
			region which is more than 100 miles or two hours travelling time from
			the regional capital. We have concluded that a system of small city
			regions would not suit the geographical diversity of England and that
			the fact that an area looks towards London should not determine
			whether or not it is included in a London region. In fact for political
			52 COMMENTARY
			reasons we have decided against a mega-region for London and the
			South East, and plumped for the old GLC boundaries for London, with
			consequent difficulties for the rest of the South East. These will be
			explored more fully in a separate report. The boundaries of Scotland,
			Wales and Northern Ireland remain as at present.
			Article 78 further provides for the function of the Assemblies, their
			election, members and qualifications, term, procedures and standing
			rules, general competence and legislation
			78.1.1 confirms the legislative power granted under Article 54 of
			Chapter 6. Under 78.2.2 Assemblies are also responsible for holding
			their executives to account.
			78.1.3 allows each Assembly to legislate for the names of the Assembly
			and its members. It is therefore possible for the Scottish Assembly to
			call itself the Scottish Parliament, if it chooses, but for the purposes of
			the Constitution to avoid confusion the name Parliament is reserved to
			the Parliament of the United Kingdom.
			Under 78.2 and 78.3 Parliament controls elections to the Assemblies
			and the number of members and their qualifications. The franchise,
			boundaries and election procedures are all UK matters and subject to
			the supervision of the Electoral Commission.
			The Assemblies have a fixed four year term, with no power of
			dissolution. Elections will take place in the second year of the electoral
			cycle established in Part 3 of Schedule 3.
			The standing orders of the Assemblies are to provide for the election
			of a presiding officer, the election of the Chief Executive and other
			matters (78.5).
			78.6 gives a general competence to the Assemblies to do anything
			which is calculated to assist in the performance of any of their
			functions.
			78.7 provides that laws passed by Assemblies shall be called Acts of
			Assembly, when passed by an affirmative vote of a majority of the
			members voting and certified by the presiding officer and the Clerk to
			the Assembly. There are thus none of the mechanisms provided in
			earlier legislation for the intervention of the UK government in the
			proceedings of Assemblies before their legislation receives assent.
			The tutelary role of the Secretary of State contained in the Northern
			COMMENTARY 53
			Ireland Constitution Act 1973 and the Scotland and Wales Acts 1978
			disappears. Governments will deal with each other at arms length and
			questions of vires and conflicts of laws will be resolved in the courts
			rather than by use of the reserve political power of the UK government
			or pre-assent reference to the Judicial Committee of the Privy Council.
			ARTICLE 79
			Executives
			Article 79 provides for an executive or government to be drawn from
			each Assembly and for a Chief Executive to be elected by the
			Assembly; for the Standing Orders of the Assembly; for the election of
			the Chief Executive and the appointment of other members of the
			Executive by the Chief Executive; for the appointment of officials by
			the Executive; for the exercise of executive powers within the legislative competence of an Assembly and over any other matters which
			Parliament may determine.
			These provisions establish the Assemblies and their executives and the
			basic relationship between them. This replicates the provisions for
			Parliament and the government of the United Kingdom with a chief
			executive elected by the legislature with powers to appoint his or her
			colleagues. The details of the relationship as contained in the Standing
			Orders of the Assemblies are for the Assemblies themselves. The
			powers of the Assemblies and hence of the executives are governed by
			provisions of Article (54) (Legislative powers) and by Article (80)
			(Revenue Sharing). All matters concerning the election to Assemblies
			are matters for Parliament under Article 87.
			ARTICLES 80 and 81
			Assembly finance and revenue sharing
			Articles 80 and 81 provide for the establishment of a Consolidated
			Fund and a Loans Fund for each Assembly and the rules governing
			their use and any borrowing by members of an Executive; Schedule 2
			also provides a formula for revenue sharing as a source of finance for
			the Assemblies. This is an attempt to find a constitutional device to
			overcome the conundrum of regional and local government: how to
			find a tax base which provides a substantial proportion of local revenue
			and at the same time provides for the equalisation of resources between
			richer and poorer areas. Tax raising powers are commonly held to be
			essential to any genuine political independence, but if regional and
			local governments are left to their own resources there will be great
			54 COMMENTARY
			inequalities in standards of public services between different areas. If
			on the other hand central government provides a substantial proportion
			of local resources in the form of equalisation grants, it will inevitably
			become involved in prescribing the ways in which ‘its money’ is spent,
			and local autonomy or self government will be undermined. This has
			proved the case even where redistribution has been carried through by
			elaborate formulae based on measurements of need. These do not
			remove the occasions for political judgements or the temptations to
			political manipulation. The suggestion here is to assign major tax
			revenues to the regions as of right with an entrenched formula for
			redistribution, while keeping the administration and control of the tax
			itself with central government.
			The experience of most countries has been that the buoyant sources of
			revenue (income taxes, excises, corporation taxes) have been appropriated by central government. The assignation of indirect taxes to
			regional or local government (sales tax, excise, VAT) runs into difficulties with ‘common market’ constraints both within the UK and the
			European Community. In the longer term there are pressures to
			harmonise such taxes across the EC. This leaves income and property
			taxes as the most appropriate taxes for local and regional government.
			Article 82 assigns property taxes (rates on domestic and commercial
			property) directly to local authorities.
			Schedule 2 provides that the whole of the personal income tax shall be
			assigned to the Assemblies. The personal income tax would remain a
			United Kingdom tax with the definitions of taxable income, rates and
			allowances all established by Parliament and administered by the
			Inland Revenue. The provision in paragraph 7 that each Assembly be
			allowed to vary the standard rate of tax levied in its jurisdiction within
			established limits must require tax payers to furnish the Inland Revenue with their addresses and add to administration and compliance
			costs of the tax, but to a much lesser extent than would be required for
			a local income tax.
			Section 2 of Schedule 2 refers to the estimated product of the personal
			income tax accruing to residents. This will allow the Inland Revenue
			to include investment income and its distribution by means of surveys
			rather than requiring detailed individual returns for all taxpayers and
			potential taxpayers. Pinpoint accuracy is not required as long as the
			general approach to distribution is seen to be fair.
			COMMENTARY 55
			Sections 3,4 and 5 of the Schedule provide the formula for distribution
			among the Assemblies. This would work as follows:
			1. a base line per capita expenditure in the UK on devolved
			functions is calculated for year one;
			2. the average per capita expenditure for the UK is multiplied
			by the population of each nation or region;
			3. this expected expenditure for each Assembly is compared
			with its share of revenue from income tax and its allocation
			is adjusted to match any excess or deficit.
			Section 3.2 of the Schedule provides that after year one the average
			expenditure shall be adjusted in line with the growth of the Gross
			Domestic Product, which should provide buoyancy, without being
			linked to inflation, but not adjusted to reflect the actual expenditure of
			Assemblies. The Assemblies cannot therefore raise the base line by
			spending more, though increasing yields from income tax may provide
			additional resources.
			It should also be noted that the system of equalisation is not self
			contained and the U.K. government would be obliged to make up the
			allocations of the deficit regions if the income tax revenue from the
			surplus regions was not adequate. There is thus no incentive for the UK
			government to lower income taxes as a means of controlling the
			Assemblies.
			There are, of course, serious problems in entrenching a financial
			formula in the Constitution and the political difficulties may outweigh
			any advantages, quite apart from persuading central government to diminish its dominant fiscal position. A full exposition and defence of
			this proposal will be made in a separate report. A number of points
			should however be made in the interim:
			1. The personal income tax yields about 25% of current UK
			government revenue (£55.bn. 1990-91 estimate). National
			Insurance Contributions yield £36bn. and would remain as a
			second UK income tax, levied on the working population and
			employers and available as a macro economic instrument for
			the Chancellor.
			2. The current level of central government grant to local government is about £42bn. and local government income from
			community charge and uniform business rate £23.5bn.
			56 COMMENTARY
			3. The transfer of functions (and expenditure) to the Assemblies, including Health at £22bn., would still leave central
			government with the lions share of revenue and a substantial
			surplus, so that it would retain an important role in equalisation. Preliminary calculations suggest that only the South
			East of England would have a revenue surplus and that the
			UK government would have to make up roughly 10% of
			Assembly and local government expenditure. This would be
			done through the equalisation formula for the Assemblies
			and would not allow the UK government to intervene in
			specific areas of policy. If the UK government wants to do
			that it would have to be by legislation under the concurrent
			powers in Article 55.
			4. An equalisation formula based on population as proposed
			does not produce startlingly different results from one based
			on a more sophisticated needs based formula. The calculations have to be based on estimates for the standard regions
			of England and extrapolations of expenditure on devolved
			functions. The figures suggest that Scotland which presently
			enjoys considerable advantages under the Barnett formula
			for the distribution of public expenditure would fare substantially worse from a population based formula and the poorer
			English regions slightly better. These calculations will be
			described more fully in a separate report
			5. The formula proposed must give a greater degree of independence to the Assemblies, which would in turn be responsible for equalisation between their local authorities, at the
			expense of rough justice in the present and the risk of inflexibility in the future. The system would certainly be more
			transparent than the present one and transfer some of the
			more difficult political problems from the UK government to
			Assemblies and local authorities. There is no way of avoiding conflict in these matters: the role of the Constitution is to
			provide means to minimise the incentives for conflict and to
			create a more equal balance between central and subordinate
			governments.
			ARTICLE 82
			Local government
			Article 82 makes important changes from present constitutional law
			and practice under which local government is entirely a creature of
			COMMENTARY 57
			statute, to be created, altered or abolished at will by Parliament:
			1. It provides a constitutional position for local government,
			without laying down a uniform system for the United Kingdom. Each Assembly will be able to devise arrangements
			suited to the character and needs of its area.
			2. In addition to whatever powers and responsibilities an Assembly may give to its local authorities, each local authority
			will also have a general competence to carry out within the
			law and the Constitution whatever activities it thinks will be
			of benefit to its citizens. The idea of a general competence
			for local authorities has been mooted in a number of reports
			(eg that by the Maud Committee on the Management of
			Local Government (1967) and by the Wheatley Commission
			in the Report of Royal Commission on Local Government in
			Scotland (1969)) either in the form used here or as a general
			power of expenditure not limited to statutory purposes. The
			idea is to encourage independent initiatives in the interests of
			the local community, although no doubt the undertakings
			would be modest, given financial constraints.
			3. The boundaries of the local authorities proposed by each
			Assembly would be subject to review by the Electoral
			Commission to prevent gerrymandering and other malpractices and all matters concerning local elections would be
			controlled by Parliament and supervised by the Electoral
			Commission. These provisions, along with the Bill of Rights,
			are intended to prevent the abuse of power by local majorities. It is likely that even with a system of proportional
			representation several Assemblies will be dominated for
			long periods by one party.
			4. Local authorities are guaranteed by the Constitution an independent source of taxation in the form of rates on property,
			whose virtues of certainty of collection and simplicity of
			administration have been painfully rediscovered by experiment, quite apart from the sound economic reasons for taxing
			property as such. This revenue would provide a good part of
			local authority expenditure, but how substantial would depend on each Assembly’s decisions on the division of functions between itself and its local authorities. These would be
			likely to differconsiderably with size of population and area.
			The Assemblies would replace central government as the
			58 COMMENTARY
			source of equalisation grants.
			82.5.2 enables Parliament to authorise further local tax powers through
			the Assemblies.
			CHAPTER 8
			ELECTIONS
			ARTICLE 83
			Electoral law and qualifications
			Article 83 provides the basis for the law governing elections. 83.1 is
			a general statement of the principles repeating Article 15 of the Bill of
			Rights. 83.2 establishes the qualification both to vote and to stand for
			elections as a British National who is at least 18 years old, though
			Parliament may extend the franchise to others (the likely classes are
			citizens of the Irish Republic or Commonwealth citizens who are
			entitled to vote now, and other E.C. nationals).
			ARTICLE 84
			Elections to the House o f Commons
			Article 84 and Schedule 3 set out the main elements of the electoral
			system for the House of Commons, which is also to be the model for
			Assembly and local authority elections, and for the Second Chamber.
			The system proposed for the House of Commons is a variant of the
			Additional Member System. It follows closely the recommendations
			of the Report o f the Hansard Society Commission on Electoral Reform
			(June 1976) with differences of detail in relation to the number of
			regions in England; of members of the House of Commons and the proportion of additional members (half rather than a quarter) which would
			produce greater proportionality, but much larger constituencies; and in
			the allocation of additional members to constituencies. The Commission’s report recommends a similar system for European elections and
			for devolved assemblies for Scotland and Wales. The choice of this
			system for the House of Commons arises from considerations of a
			number of sometimes competing criteria:
			(a) Proportionality : a close relation between the
			proportion of votes cast for a party
			and its representation in the
			electoral body;
			COMMENTARY 59
			(b) Locality
			(c) Representativeness :
			(d) Discrimination
			(e) Simplicity
			(f) Coherence
			a low probability of a party with
			less than 50% of the total vote
			having more than half of the seats.
			a close link between elected repre
			sentatives and particular
			geographical areas;
			a close relation between local
			voting and local representation.
			the possibility that elected
			representatives may be drawn from
			a wide variety of occupational,
			social, denominational, religious
			and ethnic backgrounds.
			the opportunity for voters to
			choose among candidates of the
			same party or to determine how
			their votes shall be allocated in the
			absence of a clear winner.
			a voting system which is easy to
			understand and where the relation
			between the vote and the result is
			clear;
			a system which does not require
			second elections or long drawn out
			calculations to arrive at the result;
			a system which does not require
			additional machinery for the
			nomination or adoption of
			candidates.
			a system which is the same at
			different levels of government and
			where the constituencies at
			different levels are related to each
			other in a consistent way.
			60 COMMENTARY
			Main features o f the system
			(a) The UK is treated as a whole for the purposes of establishing
			an electoral quota.
			(b) Each nation or region receives seats in proportion to its share
			of the electorate.
			(c) Each nation or region is divided up into constituencies, as
			near as possible equal in electors, for half the number of seats
			to which it is entitled.
			(d) The candidate with the largest number of votes is elected in
			each constituency.
			(e) The other half of the seats are allocated to parties in proportion to the total vote they receive in the election within each
			nation or region, subject to a threshold of 5%.
			(f) The method for appointing additional members is left to Parliament. We had originally considered a provision that additional members should be drawn from the candidates nominated but not elected in the constituencies of each nation or
			region, thus avoiding a party list or a separate nomination
			process. In most regions this would not create a problem, but
			in some regions one party may well gain over 50% of the
			vote, win all the directly elected seats and be entitled to
			additional members as well. In this case some form of party
			list seems unavoidable.
			(g) Vacancies for directly elected members are filled at elections
			by simple majority.
			The proposed system does not perform ideally on any of the criteria
			outlined above. It could be modified in various respects to alter the
			emphasis between them. Its advantages and disadvantages are as
			follows:
			(a) Proportionality: half the seats are reserved for additional
			members: this produces a greater degree of proportionality
			than the present system and makes it less likely that a party
			with less than 50% of the vote will have a clear majority of
			seats, but falls short of strict proportionality.
			A rough calculation based on the 1987 General Election is
			shown below in Table 1 on the basis of redistributing half the
			seats in proportion to votes cast in Scotland, Wales, Northern
			COMMENTARY 61
			Ireland and 12 English Regions, with a threshold of 5% and
			a 500 member House of Commons.
			(b) Locality: Half the members are elected for a constituency in
			the traditional manner. The constituencies for the House of
			Commons would be on average more than double the size of
			present constituencies. But the constituency link would be
			preserved and if practicable we would prefer that the additional members should be drawn from the unsuccessful
			candidates in the constituency election, rather than a separate
			party list, and again as far as practicable be assigned to the
			constituency which they had contested.
			(c) Representativeness: This depends on the method adopted for
			appointing additional members: the proposals do not score
			well here: a party list for additional members would probably
			be a better means of getting a greater variety of candidates
			than the ordinary adoption process by constituency parties.
			(d) Discrimination: The system does badly here as well. Electors
			vote for a single candidate/party and do not get the opportunity to distinguish between candidates of the same party as
			they can do under STV, or to give a second preference as
			under the Alternative Vote; nor do they have opportunities for
			tactical voting as in a second ballot system. Their single vote
			does however count twice and is less likely to be wasted.
			(e) Simplicity: The system does well here: the voter is required
			to vote once only and for a single candidate. If it were
			possible to draw the additional members from among the
			defeated candidates for direct election, a separate selection
			process would also be eliminated. But there may be circumstances in which all the candidates of one party are directly
			elected and some topping up mechanism would be required.
			Table 1 is an attempt to estimate the effect of this system on the House
			of Commons based on the aggregate votes cast in existing constituencies at the 1987 General Election.
			62 COMMENTARY
			Table 1:500 Seat House of Commons under AMS with Regional
			Thresholds
			0 ) (2) (3) (4) (5) \fate 1987
			Region Electorate Shares HofC %Con %Lab %SLD %0th
			01 Northern 2,001,807 4,63 12 29,21 49,02 21,48 0,29
			02 North-West 5,219,626 12,08 30 38,66 41,12 20,02 0,20
			03 Yorkshire 3,729,670 8,63 22 37,28 41,03 21,42 0,27
			04 West
			Midlands 3,942,925 9,13 23 45,46 33,34 20,85 0,35
			05 East
			Midlands 2,575,795 5,96 15 48,00 31,32 20,29 0,39
			06 Central 2,008,846 4,65 12 53,50 21,46 24,64 0,40
			07 East Anglia 2,663,392 6,16 15 53,20 20,39 26,03 0,37
			08 London 5,120,379 11,85 30 46,55 31,58 21,16 0,71
			09 South-East 2.240,707 5,19 13 56,40 16,48 26,51 0,60
			10 South
			Central 2,999,691 6,94 17 56,40 14,71 28,48 0,41
			11 Wessex 2,391,080 5,53 14 51,42 17,32 30,87 0,39
			12 South-West 1.114,761 2,58 6 48,77 12,91 37,66 0,66
			13 Wales 2,151,352 4,98 12 29,52 45,06 17,92 0,22 7,28
			(PC)
			14 Scotland 3,953,497 9,15 23 24,03 42,39 19,21 0,34 14,03
			(SNP)
			15 Northern
			Ireland 1,089,160 2.52 6 (see below under note *)
			Total 43,202,688 99,98 250
			COMMENTARY 63
			Table 1 (continued)
			(6) Seats Won (7) Add Seats (8) Total Seats
			Con Lab SLD Oth Con Lab SLD Oth Con Lab SLD Oth
			01 1 10 1 - 6 2 4 - 7 12 5 -
			02 14 16 - - 9 9 12 -
			23 25 12 -
			03 9 13 - - 7 5 10 - 16 18 10 -
			04 16 7 - - 5 8 10 - 21 15 10
			05 12 3 - - 3 6 6 - 15 9 6
			06 11 1 - - 2 4 6 - 13 5 6
			07 15 - - - 1 6 8 - 16 6 8
			08 18 11 1 - 10 8 12 - 28 19 13
			09 13 - - - 2 4 7 - 15 4 7
			10 17 - - - 2 5 10 - 19 5 10
			11 12 1 1 - 2 4 8 - 14 5 9
			12 5 - 1 - 1 2 3 - 6 2 4
			13 1 9 1 1 6 2 3 1 7 1 4 2
			14 3 15 3 2 8 5 6 4 11 20 9 6
			Total: 147 86 8 3 64 70 105 5 211 156 113 8
			Notes:
			Column (2) is the 1987 electorate, Column (3) is the electorate in each region as a
			percentage of the 1987 total UK electorate. The quota of votes per seat is the total
			electorate divided by 250, about 178,000.
			Column (3) is used to calculate the number of constituencies per region, this is shown
			for the House of Commons in column (4), and is the number of seats contested as single
			member constituencies under FPP; the total number of seats per region is twice this, the
			other representatives are added under AMS. The percentage of votes cast per party for
			each region at the 1987 election is given in column (5). The seats won by the parties in
			column (6) reflects a judgement as to the likely outcome in the elections for the new
			larger constituencies given reasonable assumptions about the constituency boundaries
			and assuming that voters behave in the same way as in 1987. Column (7) uses the figures
			64 COMMENTARY
			from column (5) to calculate the additional seats for each party per region and column
			(8) shows the total seats won by each party under these assumptions.
			* In Northern Ireland the vote shares for the various parties in 1987 were: 37.83 (UU);
			11,73 (DUP); 5.28 (Oth U); 9.95 (All); 21.10 (SDLP); 11.42 (SF); 2.68 (Oth)
			if the ‘others’ below 5% are eliminated, with ‘Other U ’ including more than one party,
			this gives vote shares:
			41.10 (UU); 12.74 (DUP); 10.81 (All); 22.93 (SDLP); 12.41 (SF)
			So the 12 Northern Ireland seats would be distributed:
			Party OUP DUP Other
			U
			SDLP All SF Other
			Seats Won 4 2 0 2 0 0 0
			Regional Vote % 37.8 11.7 5.3 21.1 10.0 11.4 2.7
			‘Entitlement’ 5 2 0 3 1 1 0
			Additional Seats 1 1 0 2 1 1 0
			Composition of 500 seat House of Commons under AMS:
			1987 (650 members)
			Conservative 211 374
			Labour 156 229
			SLD 113 22
			PC 2
			SNP 6
			OUP 5
			DUP 2 20 24
			SDLP 3
			Alliance 1
			SF 1
			Total 500 Total 650
			COMMENTARY 65
			ARTICLE 85
			Elections to the Second Chamber
			Elections to the Second Chamber are also governed by Article 83 and
			by Article 85 and Schedule 3. The system of election proposed is
			different from that for the House of Commons, the Assemblies or local
			government, namely the Single Transferable Vote in multi-member
			constituencies. The Second Chamber will also be elected on a different
			cycle after the initial general election following the adoption of the
			Constitution and will not be dissolved between general elections. All
			these features are intended to distinguish the Second Chamber from the
			House of Commons and to strengthen its independence. Its prime
			function is to defend the Constitution, though there is much other
			useful work of revision and scrutiny for it to do. Any of which will be
			aided by the enhanced legitimacy of election.
			Table 2:1987 Votes
			Region Seats Con Lab SLD Other Seats/
			Districts
			01 12 436,657 732,909 321,195 4,316 5 + 7
			02 30 1,543,438 1,641,832 799,532 7,863 6 x 5
			03 22 1,036,145 1,140,226 595,302 7,456 3 x 5 + 1 x7
			04 23 1,342,505 984,667 615,699 10,401 2 x 7 + 1 x 9
			05 15 960,282 624,483 405,889 7,854 3 x 5
			06 12 827,898 332,081 381,388 6.214 5 + 7
			07 15 1,092,215 418,485 534,400 7.592 3 x 5
			08 30 1,680,141 1,139,660 763,756 25.525 6 x 5
			09 13 951,191 277,996 447,018 10,176 6 + 7
			10 17 1,288,892 326,258 650,872 9,269 2 x 5 + 1 x 7
			11 14 958.489 322,938 575,476 7.260 2 x 7
			12 6 428,368 113,390 330,812 5,788 1 x 6
			13 12 501,316 765,209 304,230 3,742 123,599
			(PC)
			5 + 7
			14 23 713,081 1,258,132 570,053 10,069 416,073 2 x 7 + 1 x 9
			15 6 1 x 6
			Total: 250
			66 COMMENTARY
			Summary
			Number Total reps
			5 member seats 26 130
			6 member seats 3 18
			7 member seats 12 84
			9 member seats 2 18
			Total seats 250
			Table 2 gives the distribution of seats among the nations and regions,
			along with the aggregate votes for 1987. It is not possible to calculate
			what the outcome might have been using this system in 1987. There
			are too many unknowns, including the size and distribution of constituencies.
			Suggestions are made in the final column for dividing up the nations
			and regions, on the basis of consitutencies of 5 to 9 members, but this
			will be a matter for the Electoral Commission.
			The House of Commons would be elected by AMS in year X; the
			Second Chamber by STV in year (X + 2). The Commons has 250
			constituencies whose apportionment across the nations and regions is
			shown in Column 4 of Table 1. The same allocation is used for the
			Second Chamber. The Commons constituencies would be aggregated
			to form multi-member districts. In some cases (Northern Ireland, the
			South West) this would be the entire region, but in most regions there
			would be more than one district. Members of the Second Chamber are
			not constituency representatives like members of the Commons, they
			are regional representatives.
			The suggested size of districts is between 5 and 9 members. Anything
			smaller is unsatisfactory— 3 would disfranchise a fourth party with up
			to 25% of the first preference votes; 4 is theoretically undesirable. On
			the other hand if districts are too large then the whole exercise becomes
			difficult both for voters and parties. The 9 member districts suggested
			are in Scotland and the West Midlands in fairly densely populated
			urban areas. Previous suggestions for STV districts (the SDP/Liberal
			report of 1982) are based on the present size of the House of Commons.
			The reduced size proposed in this Constitution reflects the view that
			much domestic business will be transferred to the Assemblies and the
			MP’s constituency responsibilities will be somewhat reduced.
			COMMENTARY 67
			ARTICLE 86
			By-elections
			Article 86 provides for a by-election to take place if the seat of an
			elected member becomes vacant. There is no provision for a byelection if the seat of an “additional member” becomes vacant. Nor
			does the Constitution specify whether that vacancy would be filled by
			a candidate who had failed to be elected or from a party list.
			ARTICLE 87
			Elections to European Parliament, Assemblies and Local
			Authorities
			Article 87 requires that an Act of Parliament under Article 83 shall
			make provision for the Constituency boundaries and elections for
			these elected bodies, in line with the provisions of Articles 84 to 86 and
			Schedule 3.
			ARTICLES 88-90
			The Electoral Commission
			Article 88 establishes a new body, the Electoral Commission, to supervise elections at all levels of the political system. In some of its
			responsibilities it supersedes the existing Boundary Commission but
			its broader scope is similar to the electoral commission established in
			the Constitution of Malta and the Federal Election Commission in the
			United States.
			The structure and membership of the Commission are set out in Article
			88 which establishes its status as an independentparliamentary agency.
			The power and duties of the Commission are covered in Article 89
			together with Schedule 3 Parts 1 -3 and the provisions for Assembly and
			local elections in Articles 78.2 and 82.3 respectively. These powers
			and duties fall broadly under three heads; the structure of the electoral
			system; electoral practices; and complaints of malpractice.
			The structure of the electoral system: the Commission is responsible
			for establishing the number of representatives returned by the various
			regions to the European Parliament, the House of Commons, and the
			Second Chamber. It also draws up the constituency boundaries for the
			election of representatives to the House of Commons, the Second
			Chamber, Regional Assemblies, local elections and elections to the
			European Parliament. Reference to this function can be found under
			the appropriate articles of the Constitution but it is re-stated in Article
			68 COMMENTARY
			89 and Schedule 3 Part 1 and a new Act with new guidelines will be
			enacted. The intention is to minimise political interference in these key
			aspects of the electoral system.
			Electoral practices: Schedule 3 outlines the role of the Commission in
			relation to returning officers, the election of members of Parliament
			and particularly the additional members. Article 90 establishes its
			function for regulating political parties and finance, and the overall
			review of the electoral process. Apart from continuously adjusting
			regulatory practice to the changing electoral environment the broad
			intention is to make electoral practice more transparent and open to
			greater public scrutiny than has been the case previously. This is
			particularly important in relation to political parties which play a key
			role in public life and the democratic process. Reports and recommendations from the Commission would play a major part in the framing
			of future legislation in areas such as finance, broadcasting and political
			campaigning.
			Malpractice: the Commission has a role in relation to electoral malpractice and can either initiate actions itself or associate itself with the
			actions of others (89.2). 89.3 gives the Commission further powers to
			act in exercising this quasi-judicial function. It does not however have
			the powers to nullify election results but could refer cases to the
			appropriate court.
			ARTICLE 91
			Registration o f political parties
			The intention of Articles 90 and 91 is to allow political parties to be
			known to the Constitution. It does not require that parties should be
			registered or prescribe that only registered parties may put up candidates at elections. The incentive for parties to register with the
			Electoral Commission, which involves the submission to the Commission of the party constitution and its annual accounts, is that only
			registered parties will be eligible for public financial support and for
			access to political broadcasting. The aim is to recognize the
			constitutional status of political parties and to insist that parties which
			receive public support should act as public bodies, and in particular
			reveal their sources of finance.
			Article 91 provides that the right to freedom of expression guaranteed
			by the Article 11 of the Bill of Rights should not be used to evade
			COMMENTARY 69
			restrictions placed by Parliament on election expenditure of candidates, parties, whether registered or not, or other groups. Protection of
			the electoral process against corruption by money is essential to the
			integrity of the Constitution. This measure is taken in the light of recent
			cases under the Canadian Bill of Rights. Parliament is also required to
			put into statutory form the rules governing political broadcasting,
			which at present are the result of an informal concordat between the
			major parties and are regarded in some quarters as discriminating
			against smaller parties.
			"MTHERh IRELAND
			70 COMMENTARY
			MfiLANDANO'N^
			«¡illicit»''
			COMMENTARY 71
			CHAPTER 9
			THE JUDICIARY
			This Chapter of the Constitution provides with respect to the judicial
			power in the United Kingdom. It is intended to secure, more firmly
			than is possible under an unwritten Constitution, a separation of that
			power from legislative and executive powers and the independence of
			those exercising that power from those who exercise the law-making
			and governmental powers of the State.
			If courts are to have responsibility for resolving disputes impartially
			and in ways which attract confidence both of the parties (including the
			Executive) and of the public, it is necessary to secure that such
			decision-making can only be undertaken by those in whom the judicial
			power is vested and that those courts are independent and free from
			pressure and improper influences exerted by the Legislature or Government.
			This Chapter (and Schedules 4 and 5), therefore, establish the institutions that are to exercise the judicial power in the United Kingdom and
			the limits on the authority of Parliament and the Assemblies to
			establish courts. Parliament will, in consequence, no longer have
			unlimited authority to create new courts. That power will be confined
			to the establishment of lesser courts of limited jurisdiction and to
			tribunals.
			This Chapter also allocates the jurisdiction to exercise the judicial
			power amongst the courts established by or under the Constitution.
			That allocation may only be altered by Parliament within the authority
			conferred by the supreme law of the Constitution.
			To the courts will fall the responsibility of ensuring that these
			constitutional principles are respected. For a major new function is to
			interpret and enforce the Constitution, and most particularly the Bill of
			Rights, Article 6 of which guarantees decision-making by impartial
			and independent courts and tribunals. For the first time, the superior
			courts and, in particular, the new Supreme Court of the United
			Kingdom created by the Constitution, are vested with the power to
			render invalid any legislation enacted in the country which infringes
			the Constitution.
			Important changes to the existing law are made by this Chapter (and
			Schedule 5) with respect to the appointment of the judiciary. There is
			72 COMMENTARY
			general agreement about the need for reform, which will be accentuated as the judicial role is extended by the vesting of new functions in
			the senior judiciary, in particular with regard to the enforcement of the
			Bill of Rights. If there is to be confidence that the judiciary is sensitive
			to the broader social implications of their decisions, the narrow base
			from which judges are largely drawn at present must be broadened.
			The judiciary must be seen fairly to reflect, not only the Nations and
			Regions of the United Kingdom, but more importantly all sections of
			the society. In particular, there must be a significant increase in the
			numbers of women and from ethnic and other such minority groups. A
			major innovation made by this Chapter to these ends is the establishment of independent Judicial Services Commissions for England and
			Wales (working through Welsh and Regional Committees for intermediate and inferior court judges), for Scotland and for Northern Ireland,
			with responsibility for all judicial appointments (including lay magistrates and tribunal members). The Commissions are expressly charged
			with duties which are designed to broaden the bases of judicial
			selection (Article 104.2). Their power to authorise, for the first time,
			appointment as a judge of any court on a part time basis (Schedule 4
			Section 4.1.3) should materially increase the number of women
			judges.
			This Chapter also contains the principal legal provisions designed to
			assure the collective independence of the Judiciary as the body which
			exercises the judicial power, and the individual independence of the
			members of the judiciary from governmental or legislative interference that may threaten their ability to act impartially. Some of these
			provisions are comparable to those provided by ordinary statute law;
			some, notably those relating to the appointment, removal and disciplining of the judiciary, are new. In these respects, the Constitution
			introduces an element of judicial accountability which should be the
			counter-balance to judicial independence.
			It is intended that most of the existing court system (with the notable
			exception of the House of Lords, which is abolished) will continue
			within this Constitutional framework. Substantial changes in the
			present law, structure and organisation and officials, or in jurisdiction,
			practice and procedure are not a necessary part of the process of
			constitutional restructuring. On the other hand, some administrative
			reorganisation will be needed if the High Court is to meet the demands
			that will be made by establishing Assemblies with legislative powers
			in Wales and the Regions of England.
			COMMENTARY 73
			This Chapter is premised on the continuation of three legal systems in
			the United Kingdom. That for England and Wales will remain a unitary
			system. The practice and substance of the law, the legal professions
			and the institutions of law in England and Wales have been unified for
			some 450 years. Although the National Assembly of Wales will enact
			legislation that will have effect only in respect of Welsh matters, this
			does not necessitate a formal division of the legal system into two
			separate units. Indeed, it is likely to be to the disadvantage of Wales
			to separate the Principality and practitioners which a legal system of
			the present size has to offer. There is no reason why, in principle, any
			court in England and Wales should not have the jurisdiction to apply
			Welsh legislation if in the circumstances before it that law contains the
			rules that govern. Similar considerations apply with respect to legislation enacted by the Regional Assemblies in England.
			Part 1: The Judicial Power
			This Part and Schedule 4 contain the central principles governing the
			legal systems of the United Kingdom and the formal establishment
			provisions for the courts and authorities that are to derive their
			existence from the Constitution. The implementing provisions are
			contained in other Parts or legislation authorised by the Constitution.
			ARTICLE 92
			The Judicial power
			Article 92 vests the judicial power for the United Kingdom in the
			courts established by or in accordance with the Constitution. Allocation of any part of that power to a body other than one of these courts,
			as for example to an executive authority, will have no legal effect.
			These provisions ensure that decisions of a judicial nature will at all
			times remain in the hands of those appointed, as provided for by the
			Constitution, to be the judges of these courts.
			A primary feature of the division of governmental powers by the
			Constitution must be the independence of the court system from
			interference with the performance of its responsibilities by the executive or the legislative branches. Article 6 of the Bill of Rights
			guarantees that -
			“In the determination of their civil rights and obligations or of
			any criminal charges against them, every one is entitled to a fair
			74 COMMENTARY
			and public hearing within a reasonable time by an independent
			and impartial tribunal established by law.”
			92.2 provides the guarantee of independent courts established by law.
			Other provisions of the Chapter make more particular provision for the
			independence both of individual judges and collectively of the judiciary, for example with respect to the distribution of the judicial power,
			security of tenure, appointment and removal and conditions of service
			and to rights in relation to the administration and the provisions of
			resources for the court system.
			92.3 provides that new bodies to discharge part of the judicial power
			may be established only in accordance with the Constitution.
			Parliament’s hitherto unfettered power to establish courts and tribunals
			must now be exercised in accordance with the Constitution. So for
			example, no new superior court can be established without first
			amending the Constitution. This provision does not preclude the
			creation of courts or tribunals whose functions are not of a public
			nature.
			ARTICLE 93
			Establishment o f courts
			Article 93 is the source of authority for all the courts entitled to exercise
			jurisdiction in the United Kingdom and in each of the legal systems
			within the Kingdom. The principal innovation is the Supreme Court
			of the United Kingdom, whose primary responsibility will be as a
			constitutional court for United Kingdom matters.
			93.3 provides that the collective jurisdiction currently vested in existing courts is taken over by the courts established by the Constitution.
			The allocation of that collective jurisdiction between those courts is to
			be determined by Act of Parliament except where Schedule 4 of the
			Constitution expressly allocates matters to particular courts.
			Parliament would also be expected to respect the distinction made by
			the Constitution between superior courts and intermediate and inferior
			courts. In particular, there must be allocated to the former unlimited
			original jurisdiction in all substantial civil cases and in respect of all
			serious criminal offences and any supervisory jurisdiction over the
			latter.
			The establishment by the Constitution of distinct court systems requires provisions to be made to determine the territorial limits of their
			COMMENTARY 75
			jurisdiction and the extent to which jurisdiction may be exercised by
			the courts of one part in respect of activities or actions that occur in
			another part. Under 93.4 these matters must be provided for by Act of
			Parliament. At present such legal provisions that exist are scattered
			through specialist legislation (but for civil matters see Civil Jurisdiction and Judgments Act 1982, Parts II and III and Schedules 3 and 4).
			ARTICLE 94
			Limitations on invalidating o f legislation
			The power to invalidate primary legislation will rest only with the
			superior courts of the three legal systems. Challenges arising in other
			courts must be referred to those superior courts for decision. There is
			a right of appeal to the Supreme Court from any such decision that
			invalidated an Act of Parliament (Article 98.3.1), without the need to
			pursue an appeal to the appeal court in the particular system. In the case
			of primary legislation enacted by an Assembly, an appeal must go to
			those courts (which are the final courts in this respect), as of right,
			against any decision that invalidated the statute and, with limited
			exceptions, where such a challenge has been dismissed.
			ARTICLE 95
			F ull faith and credit
			Article 95 is a standard federal provision requiring Assembly legislation and judicial proceeings in the Nations to be recognised throughout
			the United Kingdom.
			The important question of enforcement in one part of the United
			Kingdom of judgments and court orders made in another must be dealt
			with by Act of Parliament. With respect to criminal matters, present
			provisions are fragmentarily provided for. Civil judgments are largely
			dealt with by the Civil Jurisdiction and Judgments Act 1982 (sections
			18 and 19).
			SCHEDULE 4
			Courts in England and Wales
			Schedule 4 (Part 1) provides for the establishment of the courts and the
			legal system of England and Wales, the judiciary attached to them and
			their jurisdictional competence. In large measure, the existing system
			of courts and jurisdiction is retained. In consequence, much of the
			76 COMMENTARY
			existing legislation on these matters is intended to continue, subject to
			the power of Parliament to make changes within its competence as
			described by this Schedule.
			Section 1.1 provides for three superior courts — the Court of Appeal,
			the High Court and the Crown Court (which at present comprise the
			Supreme Court for England and Wales and are provided for by the
			Supreme Court Act 1981, c.54). Authority is conferred upon Parliament to establish and provide for intermediate courts (eg: the county
			courts — County Courts Act 1984, c.28) and inferior courts (eg:
			magistrates’courts -Magistrates’Courts Act 1980,c.43; and coroners’
			courts — Coroner’s Act 1988, c.13). Similarly, Parliament is authorised to establish tribunals which it may designate as intermediate or
			inferior courts, thereby bringing tribunal members within the
			constitutional safeguards with respect to appointment and removal of
			judges of such courts.
			Under Section 1.2 the Court of Appeal will comprise the Master of the
			Rolls as its president (who in present practice is the senior judge of the
			Civil Division of the Court) and a minimum of 20 other Justices. At
			present, the Court of Appeal comprises a maximum of 18 Lords
			Justices of Appeal and a number of ex officio judges, including present
			and past Lord Chancellors, the Law Lords, the Lord Chief Justice, the
			President of the Family Division and Vice Chancellor (the last three
			being members also of the High Court), in addition to the Master of the
			Rolls (Supreme Court Act 1981, c.54, section 2). In addition it is
			common for Queen’s Bench Judges to be assigned to the Court to assist
			in the business of the Criminal Division (ibid, s.9). For purposes such
			as that, dual membership of the Court of Appeal and the High Court
			may be required.
			The Court of Appeal at present sits in two divisions -for criminal and
			for civil appeals (ibid, section 3). Similar arrangements will continue
			to be needed, but they and the designation and title of the Justices who
			will head either division will be for Parliament to prescribe. (The Lord
			Chief Justice at present heads the criminal division).
			Under Section 1.3 the High Court will comprise the Chief Justice as its
			president and a minimum of 50 Justices. At present the High Court
			comprises a maximum 80 puisne judges, in addition to the Lord Chief
			Justice, the Lord Chancellor, the President of the Family Division, the
			Vice-Chancellor and the Presiding Judge, who are also members of the
			Court of Appeal (Supreme Court Act 1981, c.54, section 4). Given the
			COMMENTARY 77
			extensive use at present of deputy High Court judges for Queen’s
			Bench business and the rapid growth in public proceedings, it is improbable that a lesser number of Justices than at present will be
			required.
			Judicial functions are also performed for the High Court by Masters of
			the Queen’s Bench and the Chancery Division, the Taxing Masters and
			certain Registrars of the High Court and in family matters by district
			judges (formerly district registrars) (Courts and Legal Services Act
			1990, c.41, section 76). For the purposes of the Constitution, these
			have the status of intermediate court judges.
			The High Court at present sits in three divisions — the Chancery
			Division, in practice headed by the Vice-Chancellor, the Queen’s
			Bench Division over which the Lord Chief Justice presides and the
			Family Division whose head is the President of the Family Division
			(ibid, section 5). In addition, there is a Patents Court (as part of the
			Chancery division) and an Admiralty Court and a Commercial Court
			(as Part of the Queen’s Bench Division), to which puisne judges may
			be assigned (ibid, section 6).
			Whilst similar arrangements will continue to be needed, a further
			Division of the High Court may be appropriate to deal with public
			proceedings (ie: judicial review and constitutional issues, such as
			challenges to legislation enacted for England and Wales or by Regional
			Assemblies or under the Bill of Rights) In this case too, the arrangements and the designation and titles of Justices to head the divisions
			will be a matter for Parliament to prescribe by legislation.
			Under Section 1.4 Crown Courts will comprise all the Justices of the
			High Court and such number of other judges as Parliament will
			determine. The latter, through performing functions of superior court
			judges, are to have the status of intermediate court judges for the
			purposes of constitutional safeguards with respect to appointment and
			removal (cp, below: Sections 2, 3 and Article 108).
			At present the judges of the Crown Courts comprise the puisne judges,
			circuit judges and Recorders (ie: practitioners appointed to sit parttime) and, for certain appeals, any such judge sitting with a maximum
			of four justices of the peace (Supreme Court Act 1981, c.54, section 8).
			There are some 500 Circuit Judges and 550 Recorders. Considerable
			numbers of Deputy Circuit Judges and Assistant Recorders are also
			appointed (Courts Act 197l,c.23, sections 21 and 24). With the excep­
			78 COMMENTARY
			tion of justices of the peace, who do not have the required legal
			qualifications (Section 2), similar arrangements will be consistent with
			the Constitution.
			The advantage of part-time or temporary appointment at this level, for
			example as Recorders, is that those who may come under consideration for judicial appointment are able both to gain judicial experience
			and to give some indication of their suitability for appointment.
			Although a unitary legal system is retained for England and Wales,
			Section 1.5 gives recognition to the special status of Wales by ensuring
			that at least two members of the Court of Appeal and four of the High
			Court are drawn from those who have experience as intermediate
			judges or in legal practice in Wales. A Welsh member of the Judicial
			Services Commission is also provided for (Schedule 5). Arrangements
			with respect to intermediate or inferior courts, and to tribunals designated as such, that operate exclusively in Wales, are provided for in
			Section 3.
			Under Section 1.6 the composition and titles of intermediate and
			inferior courts, and of any tribunals so designated, will be for Parliament to determine by legislation.
			At present, the County Courts are staffed by Circuit Judges (although
			Court of Appeal and High Court Judges and Recorders are also capable
			of sitting) (County Courts Act 1984, c.28, section 5). Judicial functions
			are also performed by district judges (formerly registrars of county
			courts) (Courts and Legal Services Act 1990, section 74).
			The magistrates’ courts are staffed by stipendiary magistrates (some
			65) or by lay magistrates (about 27,500) appointed pursuant to the
			Justices of the Peace Act 1979, c.55, Part I.
			Similar arrangements would be appropriate in implementation of this
			section.
			Judicial qualifications
			The principal judicial offices in the superior and intermediate courts
			must, under Section 2 of Schedule 4, be held by persons who are legally
			qualified or who have exercised rights of audience before the superior
			courts or who have served in a judicial capacity at a lower level.
			Additional qualifications will be prescribed by Act of Parliament.
			Not all those exercising judicial functions in the superior courts need
			COMMENTARY 79
			to be legally qualified. Provision is made now which permits lay
			magistrates to sit in appeals to Crown Courts and for lay persons with
			specialist qualifications to be appointed in a judicial capacity to courts
			exercising a special jurisdiction (eg: Restrictive Practices Court Act
			1976, c.33, section 33) and as members of tribunals (eg: the Employment Appeal Tribunal under section 135 of the Employment Protection
			Act 1978, c.44)
			Additional requirements have in the recent past required superior court
			judges to have practised as barristers for at least ten years, in the case
			of High Court judges, or to have been a High Court judge or to have so
			practised for at least fifteen years in the case of the Court of Appeal
			(Supreme Court Act 1981, c.54, section 10). In the case of a Circuit
			Judge, appointees must have practised as a barrister for at least 5 years.
			In practice they are appointed from amongst those who have been
			Recorders for at least 3 years (Courts Act 1971, c.23, section 16, as
			amended by Administration of Justice Act 1977, c.38, section 12), who
			must be either a barrister or solicitor of at least 10 years ’ standing (ibid,
			section 21).
			The Courts and Legal Services Act 1990 (c.41, section 71), however,
			has now paved the way for increases in the numbers of solicitors
			appointed to high judicial office. They will be eligible not only by
			reason of holding office as a Circuit judge but also as a result of having
			practised under the terms of the Act (section 27) before the superior
			courts for ten years. In theory, but likely to be uncommon in practice,
			other categories of persons granted an appropriate right of audience in
			the Supreme Court may be appointed to judicial office (ibid, section
			71).
			A major innovation made possible by Section 4.1.3 is the power to
			appoint part-time superior court judges on full tenure. This will be of
			especial benefit to the many women practitioners of ability and
			experience who find themselves unable to accept appointments which,
			because of the itinerant nature of the work, are incompatible with their
			family commitments.
			The Constitution leaves the matter of the qualifications of judges of
			inferior courts, and of those tribunals designated for the purpose as
			inferior courts, to be prescribed by Act of Parliament.
			As present legal qualifications are required for stipendiary magistrates
			(barristers or solicitors of not less than seven years’ standing: Justices
			80 COMMENTARY
			of the Peace Act 1979, c.55, section 13 or any other person who has a
			right of audience before any court and that length of experience (Courts
			and Legal Services Act 1990, c.41, Schedule 10)). No other qualification than a residential one is prescribed by law for Justices of the Peace
			who, with relatively few exceptions, will not be legally qualified (ibid,
			sections 6 and 7).
			Appointment o f judges
			Section 3 of Schedule 4 requires appointments of superior court judges
			to be made by the Minister of Justice from names provided by the
			Judicial Services Commission. Unless dissatisfied with those names,
			when the recommendations can be returned for reconsideration, the
			Minister must choose one of the two names that must be put forward
			for each appointment.
			At present, appointments are made in law by the Queen (Supreme
			Court Act 1981, c.54, section 10). In practice, they are made on the
			recommendation of the Lord Chancellor, as a result of consideration
			and consultations instituted by his Department. Although more is
			officially published today than in the past about this process, it has been
			the subject of frequent and justified criticism for its apparently closed
			nature and narrowly based selection.
			District judges of the High Court, formerly district registrars, are
			appointed by the Lord Chancellor. They are persons who already hold
			office as district judges (formerly county court registrars) for county
			court districts (Supreme Court Act 1981, c.54, section 100, as amended
			as by Courts and Legal Services Act 1990, c.41, Schedule 10).
			The involvement of a Judicial Services Commission, which is to have
			a large non-judicial composition (Schedule 5), is designed to open the
			process of selection and broaden its base. This mechanism is increasingly found in other jurisdictions (a Judicial Services Commission is
			a standard feature of the Westminster model constitutions in the Commonwealth) and is generally thought to have been successful, especially in immunising the selection process from political considerations.
			The Judicial Services Commission is required to adopt procedures in
			makings its recommendations that will ensure that appointments, as far
			as practicable, fairly reflect the community they serve, leading to a
			significant increase in the numbers amongst the judiciary of women
			and members of minority ethnic groups (Article 104.2). They would
			COMMENTARY 81
			also oblige the Commission to take positive action to bring about such
			increases.
			Appointments to the lower courts are also placed in the hands of the
			Minister of Justice acting in the usual event on the recommendation of
			the Judicial Services Commission. It is intended that only one recommendation will be made by the Commission for each appointment.
			It is recognised, however, that some diversification of effort will be
			necessary, particularly with respect of the large number of magisterial
			(and tribunal) appointments that are required. Accordingly, committees of the Commission are to be appointed for Wales and for each of
			the Regions of England in respect of appointments to courts in districts
			within their areas (Schedule 5). Such committees will be subject to
			guidelines that govern the work of the Commission, but not to its
			direction on the choice of names.
			At present Circuit judges are appointed by the Queen on the recommendation of the Lord Chancellor (Courts Act 1971, c.23, section 16)
			who here too is assisted by the consideration and consultations
			instituted by his Department. District judges (and deputy and assistant
			district judges) for county court districts — as registrars, etc, of the
			county courts are now known (Courts and Legal Services Act 1990,
			c.41, section 74) -are appointed by the Lord Chancellor (County
			Courts Act 1984, c.28, sections 6 to 8). Magistrates are appointed in
			the name of the Queen on the recommendation of the Lord Chancellor
			(Justices of the Peace Act 1979, c.55, sections 6 to 13).
			Appointments by the Lord Chancellor of lay justices follow recommendations made to him by local Advisory Committees. In the past,
			membership of those committees has not been open knowledge and the
			process by which candidates are identified, and selected, has been
			largely confidential. Whilst there are signs that some of this secrecy
			is being removed (committee membership is in future to be made
			public), it is still evident that the Lord Chancellor’s direction (as long
			ago as 1966) that names should be drawn for all sections of the
			community and should represent all shades of opinion is far from being
			fully realised. In particular, there appears to be disproportionately low
			membership from the ethnic minorities, even in areas where there are
			concentrations of such communities.
			Again, it is intended that the Judicial Services Commission will follow
			procedures for selection, particularly of justices of the peace, that will
			82 COMMENTARY
			ensure a fair reflection of the communities they serve (Article 104.2).
			Supplementary Appointments
			Temporary appointments or assignments between courts are invariably necessary to meet changing demands. Section 4 of Schedule 4
			embodies principles underlying present practice (cp, Supreme Court
			Act 1981, c.54, section 9). S4.1.2 ensures that in any hearing by the
			Court of Appeal, at least half of the judges are full members of the
			Court.
			Section 4.1.3 also authorises the appointment of qualified persons to
			be part-time judges. This covers not only those, such as Recorders,
			who perform their functions for a prescribed number of days in the
			year, but also those who may be appointed to a substantive, tenured
			judicial office but are required to sit only for a limited number of days
			each week or month. This will open up the possibility of judicial
			appointments for some, including many well-qualified women, for
			whom a full-time post is not practicable.
			These appointments and assignments are the responsibility of the
			Judicial Services Commission, which may make general rales on the
			matter or delegate the power, for example to one of its committees or
			to the senior judge of a particular court.
			Section 4.2 authorises the continuation of the present practice of
			appointing persons to perform judicial functions of asubsidiary nature,
			for example district judges in the High Court and the county courts. For
			the purposes of appointment and tenure, these offices are equated with
			those of the full judge of the next lower court. Thus a district judge of
			the High Court will be treated as an intermediate court judge for these
			purposes.
			Jurisdiction o f the Court o f Appeal
			Unlike the present Court of Appeal, from which appeals to the House
			of Lords may be taken in civil and criminal matters, Section 5 of
			Schedule 4 provides that the new Court of Appeal will be the highest
			appeal court, subject only to the special circumstances in which
			appeals to the Supreme Court are allowed (Article 98.2). Jurisdiction
			may be conferred to hear appeals from any of the courts or tribunals of
			England and Wales, except from decisions invalidating Acts of Parliament (which go to the Supreme Court — Article 94) or where
			restrictions are imposed by Act of Parliament or Rules of Court.
			COMMENTARY 83
			Acts of Parliament may, however, make arrangements for intermediate appeals. At present these exist, for example, in the case of
			magistrates’ courts, to a Crown Court by persons convicted of a
			criminal offence or, in the form of a case stated on a question of law,
			to the Queen’s Bench Divisional Court of the High Court (Magistrates’
			CourtsAct 1980,c.43, sections 108 and 111). Appeals on points oflaw
			from a Crown Court on such appeals are heard on a case stated by the
			Divisional Court (CourtsAct 197 l,c.23, section 10). There is a limited
			appeal forward to the House of Lords (Administration of Justice Act
			1960, c.65, section 23). It will be open to Parliament to allow these
			Crown Court appeals to go directly to the Court of Appeal or to
			substitute the authority of the Court of Appeal over the Divisional
			Court for that of the House of Lords.
			The so-called leap-frog appeal from the High Court in civil proceedings to the House of Lords which by-passed the Court of Appeal
			(Administration of Justice Act 1969, c.58, Part II) would no longer be
			applicable. It has not been frequently used.
			Jurisdiction o f the High Court in public proceedings
			Challenges to the validity of primary legislation that are made in an
			intermediate or inferior court cannot be heard there (Article 94). Such
			matters must be referred to the High Court under Section 6 of
			Schedule 4.
			The constitutional importance of decisions of the High Court declaring
			primary legislation to be wholly or partly void is emphasised by
			allowing appeals, in the case of Assembly Acts, to go as of right to the
			Court of Appeal, whose decisions will generally be final in such cases.
			In the case of Acts of Parliament appeals go direct to the Supreme Court
			(Article 94).
			Section 6.3 and 6.4 make provision with respect to the High Court’s
			jurisdiction to deal with certain constitutional issues. These matters,
			where arising in England and Wales, fall to be decided by the High
			Court, except those concerning the validity of legislation that are
			within the exclusive competence of the Supreme Court. The matters
			that may be heard by the High Court concern -
			(a) the contravention of the Bill of Rights;
			(b) the validity of Assembly Acts and of any subordinate legislation;
			84 COMMENTARY
			(c) the validity of executive decisions, whether at the centre or
			in Wales or the Regions;
			(d) the validity of executive decisions by a body exercising
			powers under the Constitution;
			(e) substantial issues concerning the interpretation of the Constitution or constitutional documents relating to Wales or the
			Regions.
			There is a right of appeal to the Court of Appeal in these cases or where
			challenges to the validity of primary legislation have been dismissed,
			except where to do so would be frivolous, vexatious or an abuse of
			process (cp. Supreme Court Act 1981, c.54, section 42).
			Court sittings
			As the High Court will have jurisdiction to deal with issues peculiar to
			Wales or to particular Regions, it is desirable that arrangements are
			possible for the court to have a presence and to sit regularly in those
			places and this is required by Section 7 of the Schedule.
			At present, the predominant part of the work of the High Court is
			conducted in London, though Queen’s Bench and Family Division
			matters are extensively dealt with in various first tier centres in the
			country (where both civil and criminal business is transacted). Provision already exists for sittings to be held outside London in accordance
			with the directions of the Lord Chancellor (Supreme Court Act 1981,
			c.54, section 71). Similarly the Lord Chancellor may direct where in
			England and Wales Crown Courts are to sit. These may be at first tier
			centres or, for criminal business only, at second tier (to which a High
			Court judge is assigned) or third tier centres (served by Circuit judges
			and Recorders).
			Rules committees
			Section 8 of the Schedule authorises the establishment of a Rules
			Committees with the function of making rules with respect to practice
			and procedure of the courts in England and Wales.
			There are at present several such committees, all of which are comprised of judges of the courts concerned, who are in the majority, and
			legal practitioners. The Supreme Court Rule Committee acts with
			respect to the High Court and the civil division of the Court of Appeal
			(Supreme Court Act 1981, c.54, section 85) and the Crown Court Rule
			Committee for the Crown courts and criminal division of the Court of
			COMMENTARY 85
			Appeal (ibid, section 86). See also the rule committees established by
			section 75 of the County Courts Act 1984, c.28 and by section 144 of
			the Magistrates’ Courts Act 1980, c.43.
			The ability of the judiciary to determine the rules for routine practice
			and procedure is an important element of the judicial power and in the
			protection of judicial independence.
			C ourts in Scotland
			Part 2 of Schedule 4 provides for the establishment of the courts and
			the legal system of Scotland, the judiciary attached to them and their
			jurisdictional competence. As in Part 1, the existing system is largely
			retained. No changes have been made in relation to the Scottish system
			the equivalent of which are not also found in relation to England and
			Wales.
			C ourts in N orthern Ireland
			Part 3 similarly provides for the establishment of the courts and the
			legal system of Northern Ireland, largely retaining the existing system.
			The Constitution, it should be noted, provides the framework of the
			court structure and not how those courts will operate. In that context
			it is worth noting that Section 14.1.3 provides that there will be a
			Crown Court for criminal proceeding but not whether the court will sit
			with a jury nor how many judges will preside. It therefore neither
			enshrines the non-jury “Diplock” courts which hear scheduled (terrorist) cases nor abolishes them. The constitutionality of these courts
			could, however, be challenged under other Articles of the Constitution,
			for instance Article 6 which guarantees “a fair and public hearing... by
			an independent and impartial tribunal established by law.”
			Part 2: The Supreme Court and Other United Kingdom Courts
			Part 2 provides for the Supreme Court of the United Kingdom.
			Although bearing the name at present used to refer to the Court of
			Appeal, High Court of Justice and Crown Court in England and Wales
			(Supreme Court Act 1981, c.54, section 1), this is an entirely new
			judicial body. Its establishment arises from the need to provide a
			judicial authority to enforce the division of powers instituted by the
			Constitution between the United Kingdom and the parts of the Kingdom that are given their own governmental and legislative institutions,
			and generally to settle constitutional questions at the United Kingdom
			level, as well as to ensure consistency in the interpretation of the
			86 COMMENTARY
			Constitution. Its functions are, therefore, in large measure those of a
			constitutional court. At the same time, the Constitution envisages the
			Court exercising an appellate jurisdiction with respect to a limited
			range of private law matters which are of importance for the United
			Kingdom.
			This Part also authorises the establishment of other courts and tribunals
			with specialised jurisdictions that are to serve the whole of the United
			Kingdom.
			ARTICLE 96
			The Supreme Court
			As a United Kingdom Court, the Supreme Court is comprised of judges
			who collectively have experience and standing in the three legal
			systems. Of the eleven Justices, at least five must have served as
			superior court judges in England and Wales, two as superior court
			judges in Scotland and one as such a judge in Northern Ireland. The
			other three (unless the maximum is set at a higher figure by Parliament)
			may be appointed directly from those of outstanding distinction in the
			practice or teaching of law, as well as from the superior courts, in any
			of the parts of the United Kingdom.
			This is a development of the current composition of the House of Lords
			(which is abolished). The Lords of Appeal in Ordinary (maximum
			number of eleven) must be drawn from those who have held judicial
			office for at least two years in one of the superior courts of the United
			Kingdom or who, for at least fifteen years, have had a right of audience
			before the Supreme Court in England (this includes barristers, solicitors and any others to whom such a right may be granted under section
			27 of the Courts and Legal Services Act 1990, c.41) or have been in
			practice in Scotland as an advocate or a solicitor entitled to appear in
			the superior courts or as a barrister in Northern Ireland (Appellate
			Jurisdiction Act 1876, c.59, section 6, as amended by Courts and Legal
			Services Act 1990, Schedule 10).
			By convention, but not as a matter of law, at least one, and commonly
			two, Law Lords are from Scotland and one from Northern Ireland.
			Appointments directly from the bar to the House of Lords are largely
			unknown. Academic distinction in law has not previously been
			prescribed as a qualification for judicial office and is rarely found in
			common law countries.
			The Supreme Court will be presided over by a new judicial office­
			COMMENTARY 87
			holder— the President. The office of Lord Chancellor who presides in
			the House of Lords when present and is president of the Supreme Court
			of England and Wales (Supreme Court Act 1981, section 1(2)) is
			abolished.
			Under 96.4, arrangements for the appointment of Supreme Court
			Justices are designed to provide more clearly against Government
			direction and to introduce a more representative element into the
			process of selection than is the case for the Law Lords. Such
			appointments rest with the Queen who by convention acts on the
			recommendation of the Prime Minister, after, it may be presumed, due
			consultation with among others the Lord Chancellor or, in the case of
			Scotland, the Lord Advocate.
			The President and Justices too will be appointed by the Sovereign on
			the advice of the Prime Minister. Judicial appointments are a proper
			function for the Executive, provided that political considerations do
			not dictate the selection. This latter possibility is countered by restricting the choice to one of two names submitted to the Prime Minister by
			the United Kingdom Judicial Appointments Commission, although
			the Prime Minister is entitled to ask for reconsideration of the names
			if not content with them. This procedure is akin to that recently adopted
			for federal judicial appointments in Canada, and is similar to that
			currently used for appointments of the senior clergy of the Church of
			England.
			96.5 provides that the functions of the President during a vacancy or
			temporary incapacity are to be undertaken by the senior Justice (by
			date of appointment) whois willing to act. This sets out as a constitutional
			rule what is commonly the practice in appellate courts.
			ARTICLE 97
			Composition
			Article 97 envisages that the Court will sit as a single body of eleven
			in matters of exceptional importance. In lesser matters it may sit in
			divisions to deal with several cases at the same time. As in the case of
			the House of Lords (Appellate Jurisdiction Act 1876, c,59, section 5),
			the jurisdiction of the Supreme Court (both original and appellate)
			must be exercised by a minimum of three Justices. It will be open to
			the Court to adopt the present practice of the House of Lords to sit as
			five (or some greater number) for appellate matters.
			To relieve a hard pressed court, it is common to provide that acting
			88 COMMENTARY
			judges may be assigned temporarily to sit (eg, Supreme Court Act
			1981, c.54, section 9). Provision of this kind is made by 97.2. Acting
			Justices must either be retired Justices or persons eligible for appointment to the Supreme Court. In the latter case, prior approval of the
			Appointments Commission is required. Temporary Justices must
			always comprise a minority of those sitting to hear any matter.
			ARTICLE 98
			Jurisdiction
			Unlike the House of Lords, the Supreme Court is vested by 98.1 with
			an original jurisdiction in addition to an appellate jurisdiction. This is
			commonly the case for federal constitutions (cp, the High Court of
			Australia under Chapter III of the Commonwealth of Australia Constitution Act).
			This original jurisdiction is a necessary consequence of the division of
			legislative powers under the Constitution which gives rise to the
			possibility of disputes concerning the legislative competence of Parliament on the one hand and that of the Assemblies on the other. Where
			challenges to the exercise of such legislative powers are made by a
			Government (perhaps at the instance of its legislature whose competence is alleged to have been impugned), the Supreme Court, as a
			United Kingdom court, is the most appropriate authority to determine
			conclusively the constitutional issues that will be involved.
			Challenges to the validity of such legislation raised by other persons
			than the Government concerned will be determined by the superior
			competent court in the legal system where the matter is raised, subject
			to a right of appeal without leave where the statute is an Act of
			Parliament. In the case of an Assembly statute, the matter will be
			normally be dealt with by the courts of the appropriate legal system,,
			but appeals may be taken to the Supreme Court if the interpretation or
			effect of the Constitution is in issue or the matter involved an alleged
			contravention of the Bill of Rights (98.2).
			Under 98.2 the appellate jurisdiction of the Supreme Court has little in
			common with that of the House of Lords. Under the present arrangement, the House of Lords is the final appellate body for England and
			Wales and Northern Ireland in both civil and criminal matters and for
			the Scottish courts in civil matters only. Under the Constitution, these
			functions will be discharged by the highest courts in the each of the
			three legal systems (ie, the Court of Appeal for England and Wales, the
			COMMENTARY 89
			Northern Ireland Court of Appeal and the Inner House of the Court of
			Session).
			The Supreme Court may hear further appeals in civil and criminal
			matters in very restricted circumstances only. These will generally be
			where the proceedings give rise to a question of law in relation to which
			uniformity throughout the United Kingdom or in more than one
			jurisdiction is, in the opinion of the Supreme Court, desirable or where
			the interpretation of a United Kingdom statute is in issue. It follows
			that the development of law exclusive to any of the legal systems is the
			responsibility of the courts of that system. Appeals may also be
			provided for from courts or tribunals exercising a jurisdiction for the
			United Kingdom as a whole.
			Uniformity in the application of laws of the European Community (or
			other treaties that may give rise to rights or obligations within the
			United Kingdom) for which the United Kingdom Government has
			international responsibility necessitates conferment of jurisdiction on
			those issues and may have particular application in relation to private
			law matters. Community treaties have effect in United Kingdom law,
			and United Kingdom legislation must be construed subject to them
			(European Communities Act 1972, c.68, section 2(2)). Regulations
			and, exceptionally, directives made by the Council of Ministers or the
			European Commission can also have direct effect.
			The predominant part of the appellate jurisdiction, however, is concerned with matters that arise in the courts of the three legal systems
			in connection with the Constitution (in particular alleged contravention of the Bill of Rights), or as to the meaning of the Constitution or
			validity of Acts of Parliament or as a result of disputes between
			Assemblies or Regions or between the United Kingdom and Assemblies.
			The public law dimension is reflected in the power to take appeals from
			decisions on the validity of executive action taken by the United
			Kingdom Government or public bodies acting under the Constitution
			or United Kingdom legislation. (Such matters involving Assembly
			Governments or public bodies acting under Assembly legislation can
			only proceed to the Supreme Court if they also involve any of the
			forgoing Constitutional elements).
			To the Supreme Court, therefore, falls the ultimate responsibility for
			ensuring compliance with the written Constitution throughout the
			90 COMMENTARY
			United Kingdom. To that end it has been vested with a jurisdiction, and
			with powers to invalidate legislation that is inconsistent with the
			Constitution, that hitherto have not been conferred on any United
			Kingdom court but are a usual feature of constitutions in Commonwealth and other common law countries.
			A requirement of leave to appeal is commonly provided in relation to
			the last appellate body (eg: Administration of Justice (Appeals) Act
			1934, c.40, with respect to appeals for the Court of Appeal to the House
			of Lords). 98.3 permits the use of a similar sifting process to be applied
			by law in respect of any category of appeal to the Supreme Court,
			except cases where an Act of Parliament has been held to be wholly or
			partly void, when a right to appeal is expressly granted.
			ARTICLE 99
			Additional jurisdiction
			The Judicial Committee of the Privy Council at present hears appeals
			in a limited range of civil and criminal matters from dependent
			territories of the United Kingdom and from a small number of
			Commonwealth countries (mainly in the Caribbean). This jurisdiction
			has been gradually waning and, in volume of activity, may become of
			little significance after Hong Kong joins China in 1997 and if the
			projected Caribbean Court of Appeal is established.
			The Judicial Committee is comprised in the main of the Law Lords and
			Privy Councillors who hold or have held high judicial office in the
			United Kingdom. Certain senior Commonwealth judges from countries from which appeals still lie may also sit (Judicial Committee Acts
			1833-1915).
			The Judicial Committee is essentially a Commonwealth Court. For
			some Commonwealth countries it still plays a constitutional role in
			safeguarding against the improper removal of their superior court
			judges. It is, therefore, not feasible, at least in the case of the
			independent Commonwealth countries, for the jurisdiction of the
			Judicial Committee to be effectively transferred to the Supreme Court
			by unilateral United Kingdom action. There is no legislative authority
			in the United Kingdom with respect to those countries. In consequence, such a change will require the agreement and appropriate
			legislative action in all the countries intending to retain appeals to a
			judicial body in the United Kingdom, before the Judicial Committee
			system can be replaced by the Supreme Court.
			COMMENTARY 91
			Accordingly, 99.1.1. permits such an appellate jurisdiction to be
			exercised by the Supreme Court only when invited to do so by a
			country from which appeals to the Judicial Committee could formerly
			be brought. In those cases, the President may invite a senior judge in
			that country to sit as a member of the court (99.1.2).
			The Judicial Committee also has limited appellate functions in a mixed
			assortment of United Kingdom matters. For example, it hears certain
			appeals from higher ecclesiastical courts (Judicial Committee Act
			1843, c.38) and in wartime from Prize Courts (Naval Prize Act 1864,
			c.25, sections 5 and 6). It may make declarations as to allegations of
			disqualification by members of the public against a member of the
			House of Commons (House of Commons Disqualification Act 1975,
			c.24, section 7) and may give advisory opinions on a reference by the
			Crown (Judicial Committee Act 1833, c.41, section 4).
			These functions will disappear as no longer needed or be conferred
			upon other judicial authorities (for example in the case of Prizes on the
			Supreme Court under 99.2.1).
			Under 99.2 additional jurisdiction may be conferred upon the Supreme
			Court by Act of Parliament, but to confirm its authority as the Supreme
			Court for the United Kingdom and all three legal systems, the consent
			of the Assemblies for Scotland and Northern Ireland is made a
			prerequisite.
			ARTICLE 100
			Binding force o f decisions
			Supreme Court decisions are final and conclusive and in consequence
			a matter upon which a ruling has been given (including any relating to
			the question of the Court’s jurisdiction) cannot be reopened.
			As the Supreme Court is the final court in the United Kingdom, its
			decisions (as those of the House of Lords) are to be treated as normally
			binding on all other courts. Where inconsistent with a subsequent
			decision of the European Court of Justice in a matter of Community
			Law, decisions of the European Court and the principles laid down by
			it must be applied by United Kingdom courts (European Communities
			Act 1972, c.68, section 3(1). It will not be necessary, therefore, to take
			such matters to the Supreme Court in order to reverse any such
			inconsistent decision.
			92 COMMENTARY
			Decisions of the House of Lords are regarded as normally binding on
			the Lords subject to their ability to depart from a previous decision if
			on reconsideration it appears right to do so (Practice Direction [1966]
			1 WLR 1234). The Supreme Court is given full freedom to diverge
			from its earlier decisions — a power that may be needed if the
			interpretation and application of the Constitution is to respond to
			changing circumstances. The doctrine of stare decisis cannot be
			rigidly applied with respect to decisions on the Constitution, since
			Parliament cannot legislate to correct errors made by the Supreme
			Court. It may be expected, however, that in practice the Supreme Court
			will usually follow its own decisions if only to ensure the orderly
			development of constitutional rules. (Thus for example, the High
			Court of Australia, which has always asserted its right to review its own
			decisions on constitutional interpretation, will usually follow them,
			unless it considers them to be clearly wrong).
			ARTICLE 101
			Other United Kingdom courts and tribunals
			Authority is granted for the establishment by Act of Parliament of
			courts or tribunals of specialist jurisdiction for the whole of the United
			Kingdom or to exercise an extraterritorial jurisdiction. These may be
			created at the superior, intermediate or inferior court level.
			There are at the moment two principal courts of this kind (other than
			the Judicial Committee of the Privy Council), both of which are likely
			to be continued. The Restrictive Practices Court (Restrictive Practices
			Act 1976, c.33) is composed of judges from the High Courts of
			England and Wales and of Northern Ireland and of the Court of Session
			and of a number of non-judicial members. It has jurisdiction to
			examine agreements which restrict prices or the conditions attached to
			the supply of goods or services. Appeals lie to the civil appeal court of
			the appropriate legal system.
			The other court is the Courts-Martial Appeals Courts (Courts-Martial
			(Appeals) Act 1968, c.20). This too is composed, in the main, of
			superior court judges from the three systems. It hears appeals against
			convictions by courts-martial within or outside the United Kingdom.
			There is a further appeal to the House of Lords.
			An example of a United Kingdom tribunal is the Foreign Compensation Commission (Foreign Compensation Acts (1950-1969) which
			adjudicates on individual claims in relation to compensation received
			COMMENTARY 93
			by the British Government for loss of property by United Kingdom
			nationals, as a result, for example, of expropriations by a foreign
			Government.
			Responsibility for selecting the judges of these courts is vested in the
			Minister of Justice acting on the recommendations of the Judicial Appointments Commission. Their qualifications are to be prescribed by
			Parliament and will not be limited to those normally required for the
			judiciary.
			ARTICLE 102
			United Kingdom Judicial Appointments Commission
			The selection of names for appointment to the Supreme Court is the
			responsibility of a United Kingdom Judicial Appointments Commission (a device analogous to that found, for example, in Canada for
			appointments at the federal level, and in Israel). The membership of
			the Commission of sixteen is made up from representatives selected by
			and from the three Judicial Services Commissions established for the
			purposes of selecting for senior and intermediate judicial appointments in the three legal systems (see Schedule 5). The same ratio of
			5:2:1 is used for Nation representation on the Commission as for the
			Supreme Court itself, although there is a guaranteed place amongst the
			representatives from the Commission for England and Wales, for the
			chair of the Welsh Appointments Committee of that Commission. In
			this way the claims of those from Wales for appointment to the Court
			may be advanced.
			The membership of the latter Services Commission (Schedule 5) is
			such that the Appointments Commission must necessarily include at
			least five persons who are not judges and three who are lay persons.
			Part 3: Judicial Services Commissions and Judicial Councils
			ARTICLE 103
			Judicial Services Commissions and Judicial Councils
			Article 103 creates a Judicial Services Commission and a Judicial
			Council for each of the three legal systems. The membership of those
			bodies in England and Wales is set out in Schedule 5, the Assemblies
			of Scotland and Northern Ireland being required to make similar
			provision for the membership of the Judicial Services Commissions
			and Judicial Councils for Scotland and Northern Ireland respectively.
			94 COMMENTARY
			SCHEDULE 5
			Judicial Services Commission fo r England and Wales
			Schedule 5 adopts the device of the Judicial Services Commission
			generally incorporated into Westminster-model constitutions in
			Commonwealth countries, although the composition bears little resemblance to those established by such Constitutions. The Commission has a membership which has features similar to those proposed for
			the Advisory Committees of federal judicial appointments by the
			Canadian Bar Association (The Appointment o f Judges, 1985).
			The purpose of the Commission is to provide a mechanism for
			selection of candidates for judicial appointment that is independent of
			Government and that can be representative of the community. Not
			only is this likely to ensure that political considerations are kept out of
			the appointment process, but it is intended to further the aim of
			providing a judiciary that more fairly reflects the community than is
			generally the case at present.
			Composition and appointment o f members
			Under Section 1, the Commission, unlike those found in Commonwealth Constitutions, does not have a predominantly judicial or legal
			membership. Of the 15 members, 5 only may hold permanent judicial
			office and another 2 only may be lawyers. The remainder, including
			the President, must be persons who have never qualified as lawyers or
			served as paid judges. Given the information and results of consultations that will be available to the Commission, in addition to specialist
			knowledge and understanding of the judicial and legal members, there
			is no reason to believe that lay persons cannot be found to undertake
			the selection of persons as judges who will have the respect of the
			judiciary, the legal profession and the general public.
			Precise qualifications for the members of the Commission are not
			appropriate for the Constitution. The requirement that they must be
			broadly representative of the community is intended to ensure that
			women members and members from ethnic groups, for example, are
			included, thereby meeting commonly expressed criticisms concerning
			the interests which seem to be underplayed in the present appointment
			process.
			As with the appointments to the judiciary, appointments to the Commission are a proper function for the Executive, since the Commission
			is discharging a governmental function. Responsibility is conferred
			COMMENTARY 95
			upon the Minister of Justice (who will discharge functions in this
			matter hitherto undertaken by the Lord Chancellor). The names of the
			lay-members are to be selected by the Minister from a list of names
			submitted by the Public Services Commission (see Article 115). The
			principal senior Judges, the Master of the Rolls and the Chief Justice
			(on behalf of the Judiciary), have a right to be consulted on membership. Other consultations that will inevitably be required are not made
			a legal requirement. Rather than vest the senior judges with a power
			of veto, which might give an appearance of undue power in the
			judiciary, Section 1.2.3 requires the publication of any dissent by either
			judge which the Minister has disregarded. In practice, it is unlikely that
			a disagreement will reach that stage, as the Public Services Commission and the Minister of Justice will be concerned to find members who
			will retain the confidence of the judiciary in the ability of the Judicial
			Services Commission to select suitable appointees.
			Tenure o f office
			Continuity of membership is an important consideration. Accordingly,
			appointments to the Commission are, under Section 1.3, for a minimum period of five years (which may be renewed). As forjudges, the
			Constitution seeks to provide security of tenure for members by
			prescribing the precise circumstances in which it terminates. Under
			Section 1.5 these are: ceasing to have a qualification (eg: appointment
			of a lawyer to a judicial post); reaching the retirement age of 70;
			resignation; in the case of a judge, removal from office in accordance
			with the Constitution; acceptance of an office stated to be inconsistent
			with membership (this is intended to include, eg: Parliamentary
			membership); expiration of term of office. Provision is also made
			under Section 1.5.5 for the removal of non-judicial members through
			the Public Services Commission, for example for behaviour incompatible with the office. Members cannot be removed on other grounds.
			Welsh and Regional appointments
			Under Section 2 appointments to intermediate and inferior courts
			sitting exclusively in districts in Wales or in the Regions are handled
			through committees of the Commission (Schedule 4, Section 3.3.1).
			Recognition of the special status of Wales is found in the creation by
			the Constitution of the Welsh Appointments Committee with a chair
			who is a member of the Commission. The Committee has an overall
			structure patterned on the Commission. Again lay members (4) are a
			majority of the seven members. The appointments will be made by the
			96 COMMENTARY
			Minister of Justice who must consult with the Chief Executive of
			Wales who has a power to publish the fact of dissent with any
			appointment
			Regional Appointment Committees are to be established by Act of
			Parliament. It is intended that these will follow the pattern of the Welsh
			Committee.
			In both cases, the requirements in respect of tenure of office will
			correspond to those for Commission members.
			These Committees will not be subject to the direction of the Commission on selection, although their administration and procedure will
			have to conform with its dictates. Reports as to their activities must be
			made periodically to the Commission.
			Conditions o f Service o f Commission members
			Under Section 3 the President of the Commission is to be a full-time
			appointment; other members and those of the Committees are parttime paid appointments.
			Administration o f the Commission
			Section 4 states that servicing of the work of the Commission and its
			committees will be provided by its own staff. It is intended that the
			functions and officials (some 50) of the Lord Chancellor’s Department
			at present concerned with judicial appointments will be transferred to
			the Commission. This should ensure that the considerable experience
			already acquired by the Department is built upon, and that there is a
			sufficient degree of autonomy to enable necessary information about
			potential appointees to be gathered and evaluated.
			ARTICLE 104
			Functions o f Judicial Services Commissions
			The principal function of the Judicial Services Commissions is to
			appoint judges and to authorise them to sit in their respective courts,
			as required by Schedule 4.
			104.2: this important provision is designed to ensure that the Commissions will seek out candidates for judicial appointment from a wider
			pool than in the past, leading to an increase in the numbers of, for
			example, women and black people, whilst at the same time maintaining the quality of those appointed in terms of legal ability and judicial
			capacity.
			COMMENTARY 97
			Complaints relating to the judiciary
			104.3: At present there is no formal procedure whereby complaints
			about judicial behaviour can be made by the public. It is, however,
			open to the Lord Chancellor to look in to any complaint that may be
			made or referred to his Department and this may result in the Lord
			Chancellor’s displeasure being drawn to the attention of the judge
			concerned. Little publicity is given to these arrangements.
			Other jurisdictions have introduced formal mechanisms for receiving
			and examining complaints which, in a serious case, may lead to
			proceedings for removal, or in a lesser case to findings being drawn to
			the attention of the judge. The judge is afforded a right to be heard,
			usually by a tribunal created for the purpose.
			Such arrangements are found in Canada, where they are dealt with by
			the Canadian Judicial Council comprised of the Chief Justice of
			Canada and provincial Chief Justices and Associate Chief Justices
			(Judges Act, c.J-1).
			They are also found in Australia. In New South Wales, for example,
			complaints are dealt with by the Conduct Division (of 3 judicial
			members) of the Judicial Commission (comprised in the main of senior
			Judges). This may hold hearings, in public if necessary, at which the
			judge is entitled to be heard. A finding substantiating a serious
			complaint may result in proceedings for removal; a finding that a minor
			complaint has been proved will be brought to the attention of the judge
			concerned (Judicial Officers Act 1986, No. 100).
			104.3 requires the Commission to establish a procedure to consider
			complaints and in a proper case for reference to a Judicial Conduct
			Tribunal with a view to removal (Article 109). Lesser cases are to be
			dealt with by informing the judge of the finding and, in appropriate
			cases, by compensation out of public funds.
			The procedure established by the Commission may not permit judicial
			decisions to be complained against. Nor can complaints of maladministration against the judiciary be entertained by the Commission or by
			the Parliamentary Commissioner for Administration, although the
			latter may look into such complaints against the administrative staff of
			courts or tribunals (Courts and Legal Services Act 1990, c.41, section
			110).
			98 COMMENTARY
			Other functions o f the Commission
			104.4: As is frequently the case with major public bodies, the Judicial
			Services Commission is required to make an annual report to Parliament. This, in principle, will enable Parliament to examine in committee and to debate how the Commission is performing its responsibilities and the policies that it is apparently pursuing. In particular, there
			will be an opportunity to bring out how the Commission is endeavouring to achieve a judiciary which is a fair reflection of the community.
			104.5: Additional functions may be conferred upon the Commission
			by Act of Parliament. For example, it may be appropriate to extend its
			powers to recommend appointments of, and to investigate complaints
			against, senior court officers of the High Court and Court of Appeal,
			for example those listed in Schedule 2 of the Supreme Court Act 1981
			(as amended by Courts and Legal Services Act 1990, section 77 and
			Schedule 10) to the extent that these are not already treated as judicial
			appointees. Appointments are made by the Lord Chancellor (with the
			concurrence of the Minister for the Civil Service as to numbers and
			salaries) who may also remove for misbehaviour (Supreme Court Act
			1981, sections 89 and 92).
			ARTICLE 105
			Functions o f the Judicial Council
			Article 105 contains the central provisions concerning the Judicial
			Council established by Article 103. This is again an innovation,
			designed in part to support the independence of the judiciary.
			The Council is to be a professional body, comprised entirely of judges
			representative of the various levels of courts in the system. Under
			Section 5 of Schedule 5 it is left to Parliament to determine by
			legislation the exact numbers, the nature of selection and, thus, of
			representation (subject to a requirement of a Welsh presence) and the
			terms of appointment.
			There is increasing recognition that executive control of the provision
			of resources and over judicial administration can weaken the capacity
			of the courts to carry out their functions. One eminent commentator
			of the international scene has written th a t: “an important measuring
			stick in the assessment of collective judicial independence is the
			administrative independence of the judiciary. This includes, for
			instance, supervision and control over administrative personnel, preparation of court budget, maintenance of court buildings, and the like”.
			COMMENTARY 99
			(S. Shetreet, in S. Shetreet & J. Deschénes, Judicial Independence,
			p.644).
			Since the major changes following the Beeching Royal Commission
			in 1969, (implemented under the Courts Act 1971, c.23), there have
			been major developments in England and Wales injudicial administration. In comparison with other common law countries (such as the
			United States, Canada and to an extent Australia), in this country
			responsibility for court administration policy, resourcing and management is markedly that of the Executive, with the judiciary playing a
			largely day-to-day role. Administration is a function of the officials
			under the Lord Chancellor’s Department, with the Lord Chancellor
			and, in some matters, the Home Secretary, carrying the responsibility
			for resourcing the system. It might be argued that the anomalous
			constitutional position of the Lord Chancellor as both head of the
			Judiciary and a Senior Minister of Government ensures that judiciary
			may make an input into policy-making in respect of administration,
			with a view, for example, to ensuring that the necessary resources are
			provided to enable the system to function properly.
			The replacement of the Lord Chancellor by a Minister of Justice will
			remove altogether a formal judicial involvement in these matters (see
			Article 43.1.3.2). New arrangements are therefore needed. One
			approach would be to vest full responsibility for administration of the
			courts in the judiciary itself, assisted by a court service appointed by
			and answerable to the judiciary (see I.R. Scott: Court Administration:
			The Case fo r a Judicial Council, 1979). This would present serious
			difficulties of financial controls and of accountability for expenditure
			of national resources and in developing a budget in what must be
			considered to be an area of major governmental responsibility consistently with principles of Ministerial responsibility and Parliamentary
			supervision.
			The approach adopted by the Constitution assumes the continuation of
			the responsibility for court administration in the Executive through a
			Minister of Justice, who will discharge the relevant functions at present
			undertaken by the Lord Chancellor and the Home Secretary. The
			judicial input is provided through a Judicial Council, representative of
			the judicial interest, which will be the formal channel for making that
			interest known to the Minister of Justice. The Judicial Council is to be
			an advisory and consultative, rather than a decision-making, body, its
			prime responsibility will be to provide a judicial input into the devel­
			100 COMMENTARY
			opment of the budget and on the allocation of resources for the court
			system, which the Minister will have to negotiate with the Treasury and
			pilot through Parliament. Its perception of the resource needs of the
			court service (for example, on such matters as computerisation) and
			upon the way in which existing resources are being deployed on the
			administration of the courts will be central to the input made by the
			Council. It may be expected that the Minister will involve the Council
			before any major policy changes are made, for example, in implementation of Treasury objectives (as where reduction in court staffing
			levels is sought) that will alter the ways in which the courts are run.
			It would be open to the Council to tender its own advice on matters
			which it deems important, and it will not be dependent upon its advice
			being sought by the Minister of Justice. The Judicial Council would not
			be concerned with the prosecution service or with legal aid resources.
			Part 4: Judicial Independence and Conduct
			ARTICLE 106
			Application o f Part 4
			This Part makes specific provisions designed to contribute to the
			independence of the judiciary, and includes new arrangements for
			removal of judges in ways which balance the need for security of tenure
			with that of discontinuing the services of those who are no longer
			suited for judicial office. It applies with respect to all the courts in the
			United Kingdom and its three legal systems.
			ARTICLE 107
			Protection o f judicial salaries
			Article 107, which applies to the judiciary at all levels, replicates
			provisions found in a number of jurisdictions (cp. Constitution of
			India, art 124(2), proviso). Under present law, salaries of the superior
			court judges, circuit judges and stipendiary magistrates may not be
			reduced (Courts Act 1971, c.23, section 18; Administration of Justice
			Act 1973, c.15, section 9; Supreme Court Act 1981, c.54, section 12).
			There is no precise provision under present law precluding adverse
			changes in relation to other conditions of service (eg, in respect of
			pension entitlements which are provided for by the Judicial Pensions
			Act 1981, c.20). Although many conditions of service are guaranteed
			by law, in principle, there is at present no legal constraint upon
			COMMENTARY 101
			amendment to that law in ways which affect existing holders of judicial
			office. 107.1 precludes the enactment of such laws, as well as changes
			to other conditions of service that are not contained in legislation nor
			are regulated by subordinate laws.
			As is commonly the case in Commonwealth Constitutions, 107.2
			reproduces provisions in existing statute law for ensuring the payment
			of judicial salaries direct from the Consolidated Fund without providing an opportunity, during annual approval, for debate in Parliament
			concerning judicial conduct (Supreme Court Act 1981, c.54, section
			12(5); CourtsAct 1971, c.23, section 18(2); Administration of Justice
			Act 1973, c.15, section 9). This again applies to all who hold judicial
			office and are paid salaries.
			ARTICLE 108
			Tenure o f Judicial Office
			108.1: An important constitutional safeguard for judicial independence that is frequently provided is the prescribing of a comprehensive
			statement of circumstances in which the judiciary may be required to
			quit office. Four cases commonly set out in constitutional documents
			are included here — the attainment of a specified retiring age, established here at 70; resignation; removal from office solely on the
			grounds and by the procedures set out in 108.2 and Article 112 (in
			contrast with the uncertain grounds and range of procedures that
			appear still to exist in English law); acceptance of an office stated in
			law to be inconsistent with judicial office.
			108.1.2 is included to cover a commonly recurring issue of the entitlement of a judge to complete matters with were commenced before, but
			not concluded by, the date the retirement age is reached. There appears
			to be no comparable provision in existing law.
			The standard retirement age of 70 is provided for all judicial appointments. Under present arrangements, normal retirement ages are 75 for
			Superior Court Judges (Supreme Court Act 1981, c.54, section 11), 72
			in the case of Circuit judges and Recorders (Courts Act 1971, c.23,
			sections 17 and 21) and of district judges (County Courts Act 1984,
			c.28, section 11) and 70 in the case of stipendiary magistrates and for
			justices of the peace (Justices of the Peace Act 1979, c.55, sections 8
			and 14).
			In order that a full pension period of 15 years may be met it will be
			necessary to make somewhat earlier appointments to the superior
			102 COMMENTARY
			courts. This will have the desirable consequence of ensuring that the
			average age of the senior judiciary is lowered. This will be possible,
			however, only if improvements injudicial remuneration are made that
			will be attractive to those at the height of their earning powers.
			108.1.1.5 relates to judges of inferior courts (and of tribunals so designated) who will cease to hold office on the termination of a fixed term
			of appointment that is not renewed. The position of those who perform
			judicial duties in the superior or intermediate courts on a fixed term is
			more fully protected under 108.4.
			108.2: The present law on removal of judges lacks clarity. Under
			section 11(3) of the Supreme Court Act 1981, c.54, superior court
			judges hold office during good behaviour. Want of good behaviour
			would be found in “conviction for an offence involving moral turpitude, and persistent neglect of duties: it does not appear to cover mental
			infirmity.” (S. de Smith & R. Brazier, Constitutional and Administrative Law, 6th ed., p.380) The latter question is now covered in the case
			of superior judges by statute under which the Lord Chancellor, with the
			concurrence of senior judges, may declare an office vacant for permanent incapacity (Supreme Court Act 1981, c.54, section 11(8) & (9)).
			It is convincingly argued (S. de Smith and R. Brazier, op cit, p.380) that
			in strict law such judges may be removed by the Crown either for
			misbehaviour or on any other grounds on the basis of an address by
			both Houses of Parliament (Supreme Court Act 1981, c.54, section
			11(3)), and that a variety of procedures may be used in addition to the
			address process (such as by the writ of scire facias or by injunction in
			the High Court at the instance of the Attorney-General restraining the
			judge from acting). In fact, no English judge has been removed in the
			last three hundred years by any of these mechanisms.
			Removal of Circuit judges and Recorders may be made by the Lord
			Chancellor on the grounds of incapacity and misbehaviour an d , in the
			case of Recorders, for failure to complete the agreed frequency of
			sittings (Courts Act 1971, c.23, section 17(4) and 21(6)). There is no
			statutory procedure entitling the judge to a hearing before removal
			although it is argued that this is implied (de Smith and Brazier, op.cit,
			p.381).
			District judges hold office during good behaviour and may be removed
			the Lord Chancellor for misbehaviour (Supreme Court Act 1981, c.54,
			COMMENTARY 103
			sections 92(4) and (5) and 100(4); County Courts Act 1984, c.28,
			section 11(4) and (5)).
			Stipendiary magistrates may be removed on the recommendation of
			the Lord Chancellor. No grounds are laid down in law (Justices of the
			Peace Act 1979, c.55 section 13(3)). Justices of the Peace may be
			removed by the Lord Chancellor — again no grounds are statutorily
			specified (ibid, section 6(1)). In addition they may be placed on the
			supplementary list, and thus disqualified from sitting in court (ibid,
			sections 8 and 9). A small number are removed every year, usually for
			activities or behaviour inconsistent with judicial office.
			In the great preponderance of cases where judicial behaviour is
			considered to be sufficiently unsatisfactory to require attention, the
			judge in question will be encouraged by senior judges to tender his
			resignation.
			It is clearly unsatisfactory that there should be any question concerning the circumstances in which removal can occur or, indeed, that there
			should be any substantial difference between the different levels of
			judiciary. Further, the lack of clarity in the notion of “misbehaviour”
			can usefully be reduced.
			Accordingly, Article 108.2 applies to all who hold judicial office in the
			United Kingdom, whether full-time or part-time and contains a definitive statement of the cases in which removal is permitted. The statement of grounds is modelled upon that in the J udges Act of Canada (c. J1, section 65(2)).
			108.3: As mentioned earlier, existing law makes little provision with
			respect to the procedure to be followed in relation to removal of judges.
			Although this may involve an address by Parliament in the case of
			superior judges, the theoretical possibility remains of removal at
			common law by other procedures, such as the writ of scire facias. In
			the case of intermediate and lower courts, statutory provisions appear
			to envisage a procedure that is essentially executive, although it is
			almost certain that a right at common law to be heard would be
			confirmed by judicial review.
			In most of the newer Commonwealth Constitutions, a clear procedure,
			involving a hearing and finding by a judicial tribunal, is standard, at
			least for superior court judges. In some instances, a decision that
			removal is justified must then be referred to the Judicial Committee of
			104 COMMENTARY
			the Privy Council whose advice on the matter is binding (eg: Constitution of Jamaica, section 100). Legislation of this kind is found in the
			older Commonwealth countries (eg: Judges Act, c.J-1, of Canada;
			Judicial Officers Act 1986, No.100 of New South Wales).
			The essentials of such an approach have been adopted in Article 112.
			The only procedures that may be invoked for a judge of any of the
			courts in the United Kingdom are those found in that Article. Other
			processes cease to have effect.
			Renewal o f fixed term appointments
			108.4: is necessitated by the practice of appointing persons to perform
			judicial functions for a fixed term. For example, Recorders in England
			and Wales, who are practising lawyers, are appointed to sit for a
			prescribed number of days in each of a stipulated period of years
			(Supreme Court Act 1971, c.23, section 21). It is also a common
			practice with respect to tribunal appointments.
			As a rule there is an expectation of renewal if desired, so that refusal
			to renew is tantamount to removal. This Article requires a positive
			decision by the relevant Judicial Services Commission, which implies
			that it will be taken only for good cause. The Commission may be
			requested to state its reasons, opening the way for judicial review. It
			remains possible to remove such an appointee during tenure in the
			same way as other senior judges. (108.1).
			These arrangements would not apply with regard to such appointments
			as Assistant Recorderships which are usually seen as providing a short
			trial period for those under consideration for a fixed term appointment,
			or to judges of inferior courts or tribunals (108.1.1.5).
			ARTICLE 109
			Judicial Conduct Tribunals
			Three Judicial ConductTribunals are to be established to have jurisdiction with respect to the judges in the relevant legal system. Legislation
			enacted by the appropriate legislature (Parliament for England and
			Wales; the Assemblies in the case of Scotland and Northern Ireland),
			will be needed which must provide for a membership that meets the
			minimum requirements of this Article. Although these tribunals are to
			have judicial members, selected by the heads of the judiciary concerned, (and these are intended to be the majority), there will also be
			a lay membership chosen by the appropriate Judicial Services Com­
			COMMENTARY 105
			mission. In other respects the Tribunals are to be independent of the
			Commissions. Whilst cases will necessarily have a legal dimension,
			the broader questions that may arise (on the seriousness or incompatibility of conduct with the office) involve more than legal judgement.
			ARTICLE 110
			Complaints against Supreme Court Justices
			The arrangements for dealing with complaints against judges of the
			three legal systems are not wholly appropriate for complaints against
			judges of a court that is a United Kingdom court. Accordingly, Article
			110 requires such complaint to be made to the head of the Supreme
			Court who may then determine which of the Commissions is best
			suited to discharge the preliminary examination process.
			Further, if a Tribunal hearing is called for, a national body will be
			necessary. This special Tribunal is to be composed of the President and
			one judicial and one lay member from each of the ordinary Tribunals.
			ARTICLE 111
			Functions o f Judicial Conduct Tribunals
			The Judicial Conduct Tribunals can only deal with complaints against
			superior and intermediate court judges. These must be referred to them
			by the appropriate Judicial Services Commission, which is expected to
			have undertaken a preliminary examination to sift out those cases
			which do not merit the Tribunal’s attention (Article 104.3.2).
			The Tribunal must enquire into the matter and as a matter of law will
			be required to allow the judge to be heard. (Procedural details, for
			example, with respect to any public hearing or representation, will be
			dealt with by legislation). The Tribunals are to make any recommendations as to removal to the Minister of Justice. But if a case of
			misconduct or failure in office appears to be proved which does not
			merit removal, the finding will be brought to the attention of the judge
			(and by implication reported to the Minister of Justice and any
			complainant). These powers run alongside those of the Judicial Services Commissions which are authorised to direct payments of compensation to complainants (Article 104.3.2).
			Supervision o f Judicial Conduct Tribunals
			111.3 puts beyond doubt the authority of the courts to exercise a
			supervisory jurisdiction over Judicial Conduct Tribunals by judicial
			106 COMMENTARY
			review. This will ensure that these bodies act within their competence
			and respect the common law or any statutory requirements as to fair
			hearing. In the case of the special Tribunal for Supreme Court Justices
			or judges of other UK courts, this jurisdiction is to be exercised by the
			Supreme Court.
			Suspension o f judges
			As is commonly found in legislation in countries with a similar
			procedure (eg: Judicial Officers Act 1986, No. 100, (NSW), section
			40), authority is granted by 111.4 to allow a judge to be suspended on
			pay until the complaint is finally dealt with either by its dismissal by
			the Judicial Services Commission or the Judicial Conduct Tribunal or
			by a finding and recommendation of the latter. The decision to suspend
			must be taken by the Judicial Services Commission. This is unlikely
			to happen unless the complaint is one which could, if proved, lead to
			removal or which involves substantial misconduct, such as conviction
			of a serious crime.
			ARTICLE 112
			Procedure fo r removal o f Judges
			The requirement of an address of Parliament before removal of a
			superior court judge takes place may be regarded in different circumstances both as a safeguard for independence and as undue political
			invasion of security of tenure. If it is the sole procedure followed, it is
			not a satisfactory method of establishing facts and ensuring that a
			balanced decision on the merits is obtained. If, as in the Constitution,
			Parliamentary involvement can arise only when a Tribunal has recommended removal, this procedure becomes a legitimate means of
			ensuring that a matter of significant and serious public interest is
			openly discussed before a decision to remove is finally taken. There
			have been few such addresses moved in the United Kingdom and only
			one, in 1830, against an Irish judge, was successful.
			This procedure, however, must be pursued under the Constitution in
			respect of Supreme Court and superior court judges, at the instance of
			the Minister of Justice, wherever an adverse recommendation is made
			by a Tribunal.
			112.2: Recommendations by the Judicial Conduct Tribunal for the
			removal of an intermediate court judge must be implemented by the
			formal appointing body. In effect, therefore, the decision is that of the
			Tribunal.
			COMMENTARY 107
			112.3: Removal of magistrates and other inferior court judges does not
			involve the Judicial Conduct Tribunal procedure. Complaints in these
			cases must be made directly to the Minister of Justice or appropriate
			Chief Executive, who must cause an investigation of the matter to take
			place. It will be necessary for a procedure to be formalised, to enable
			representations to be heard and a fair process to be conducted.
			Judicial supervision of the fairness of the hearing and legality of the
			decision, the reasons for which must be given (and which must be
			based on the grounds specified in Article 108) is possible by way of
			judicial review.
			112.4: Authority to interfere with pension rights (which would otherwise not be permitted by reason of Article 107) is given where a judge
			is removed but, in the case of all judges except those of the inferior
			courts, this must be determined by the recommendation of the Judicial
			Conduct Tribunal involved.
			ARTICLE 113
			Judicial control o f Court business
			Article 113 provides another important safeguard from political interference in the administration of Justice, directing that the allocation
			and listing of Court cases shall be under the control of judges chosen
			by the Judicial Council.
			It is envisaged that judicial control over practice, allocation of judges
			to try matters and the like will be the responsibility, as the case may be,
			of the Chief Justice or Master of the Rolls or the presiding or other
			designated senior judge of the court of the circuit or district. Under the
			Courts and Legal Services Act 1990 provision is made for two
			Presiding Judges (who must be High Court judges) for each of the six
			Circuits of England and Wales.
			CHAPTER 10
			THE PUBLIC SERVICES
			ARTICLE 114
			The Public Services
			Article 114 establishes public services for the UK, Assemblies and
			local authorities. They are to be politically neutral and appointed on
			merit and the first duty of the public servant is to the Constitution
			108 COMMENTARY
			(114.3 and 114.5). The express duty to the Constitution is designed to
			counteract the judgement in the Ponting case and the Armstrong
			memorandum to the effect that a civil servant’s duty is to his Minister
			and to the public interest as defined by the policies of the government
			of the day. This provision is linked to Article 117 (Public Services
			Complaints Commission) which establishes a mechanism for dealing
			with cases where a Minister may be abusing the public service. This
			is to cope with the sort of problems raised by the Ponting and Westland
			affairs.
			114.4 allows Ministers to appoint personal advisers, on terms approved by the Public Services Commission.
			114.6 takes account of the development of executive agencies and their
			accountability to Parliament and requires an Act of Parliament to sort
			out the problems created by this important change in the structure of
			central government.
			ARTICLE 115
			Public Services Commission
			Article 115 sets up the new version of the Civil Service Commission.
			As it is to have responsibility for certain aspects of the public service
			in national, regional and local government as well as central government it has been renamed the ‘Public Services Commission.’
			Responsibility for the operation of rules governing appointment and
			terms of service in national, regional and local government is given to
			the Public Services Commission in order to secure that the principles
			of a politically neutral public service appointed on merit are followed
			throughout the country. But management of public services in national
			and regional government and in local government will rest with those
			authorities.
			The Public Services Commission will also have responsibility for
			making other appointments to public offices including members of
			Health Authorities, governors of the BBC and so forth. Parliament will
			prescribe by Statute the full range of its responsibilities. It is expected
			that the PSC would invite nominations, from Ministers and others, and
			would then make appointments after consultation. The objective is to
			control the use of patronage for party political and partisan purposes,
			but Ministers will nevertheless have an important input in the making
			of many such appointments.
			COMMENTARY 109
			To insulate the Commission from ministerial interference the recommendations for its membership are the responsibility of the House of
			Commons, and it is anticipated that the function would be given to the
			new equivalent of the Treasury and Civil Service Committee. The
			Commission will be accountable to that Committee. But it will be
			insulated from accountability to the government of the day. Under
			115.5 Commissioners hold office for a 5 year term which is renewable
			and may be removed from office on grounds of misconduct or
			incapacity by the Head of State following a resolution of the House of
			Commons. They may resign and must also cease to hold office on
			reaching the retiring age (65) or if a candidate for election to Parliament, the European Parliament, an Assembly or a local authority.
			These provisions are designed to insulate the Commission from ministerial interference and to ensure its political neutrality.
			ARTICLE 116
			Functions o f the Public Services Commission
			In accordance with the presumption in favour of openness, Article 116
			provides for the drawing up of a code of professional conduct and
			regulations which make explicit the ‘rules of the game.’ The intention
			is that these should be published, so that they can be exposed to public
			scrutiny, as can their operation in practice.
			In addition to the Code of Professional Conduct the Commission is also
			required under 116.1.2 to prepare regulations governing methods of
			recruitment, terms and conditions of employment, principles and
			procedure for promotion and transfer, vetting, discipline, grievances
			and removal from office.
			116.2 is intended to ensure that the Commission will seek out candidates for appointment from a wider pool than in the past leading to an
			increase in the number of women and members of the ethnic minorities
			at all levels in the public service.
			ARTICLE 117
			Public Services Complaints Commission
			Article 117 sets up an independent Public Services Complaints
			Commission whose membership and terms of appointment are to be
			determined by Act of Parliament. The Commission is to investigate
			complaints, including complaints from members of the public services, about breaches of the code or regulations, maladministration of
			110 COMMENTARY
			a public service, and improper conduct towards an official by Ministers, Executives of an Assembly or members of a local authority. The
			Commission will operate in a way similar to the present Parliamentary
			Commissioner for Administration and will report to the Public Services Commission and to Parliament. It is expected that a Select
			Committee will deal with these matters, probably the Treasury and
			Civil Service Committee. The objective is to set up a mechanism that
			will prevent the use of the public service for partisan purposes or to
			deceive Parliament or subvert the Constitution. Public servants will be
			protected from discrimination if they complain. This is in line with the
			concession made to the Treasury and Civil Service Committee by the
			government in 1990.
			CHAPTER 11
			ADMINISTRATIVE JUSTICE
			ARTICLE 118
			Judicial Review
			It is essential to the Rule of Law that no body performing a public
			function should exceed or abuse its powers. Article 118 requires
			Parliament to legislate for this by way of judicial review. Any person
			will have standing to sue a public authority if he or she has “a sufficient
			interest in the matter to which the application relates”, the present test
			for an application for judicial review.
			It is not considered necessary to specify in the Constitution the precise
			grounds for review, which may best be left to incremental elaboration
			under the common law, which has been so successful in recent years.
			Nothing however prevents Parliament from codifying the grounds for
			review as has been done in Australia, or legislating standards of good
			administration if it so wishes. Article 118 in fact requires Parliament
			to provide two such standards: a general duty upon public authorities
			to give reasons for their decisions (118.1.2) and the provision of
			effective remedies, including payment of compensation (118.1.3)
			ARTICLE 119
			Commission fo r Public Administration
			Article 119 establishes a Commission for Public Administration. This
			Commission combines the functions now performed by the various
			Ombudsmen (the Parliamentary Commissioner for Administration
			and Local Commissioners) and the Council on Tribunals. It will also
			COMMENTARY 111
			act as a body to commission research into public administration
			generally, along the lines of the US or Australian Administrative
			Review Councils.
			The investigative powers of the Commission are wider than those of
			the present ombudsmen in the following respects: first, it may investigate at the request of a person with sufficient interest in the matter to
			which the application relates, thus doing away with the filter through
			members of Parliament (119.31). Second, the Commission may investigate on its own initiative or at the request of a Minister or Executive
			(119.3.2). Third, the Commission may investigate both maladministration, the present test, and also unfair administration. Fourth, the
			jurisdiction of the Commissioner extends to all public bodies except
			those specified by legislation (119.4). Fifth the Commission will be
			able to order effective remedies, which it cannot now do, including the
			remedy of compensation (119.5.1).
			119.1 leaves the composition and appointment of the Commission to
			be determined by Act of Parliament, and 119.2 in effect provides for
			Parliament to cause the Commission to act through existing commissioners or bodies, so that it can incorporate the ombudsmen and others
			under its new umbrella.
			The Commission is to report its investigations to Parliament, Assemblies or local authorities as appropriate (119.6) and to make an annual
			report to Parliament and to the Assemblies, which may include
			recommendations for improvements in administrative justice.
			ARTICLE 120
			Complaints procedures
			Article 120 requires every public authority having dealings with the
			public to establish a complaints procedure and to provide redress
			where a complaint is upheld. This reinforces the provision for judicial
			review under Article 118, and may prove a cheaper and more expeditious alternative.
			112 COMMENTARY
			CHAPTER 12
			PROTECTION OF THE UNITED KINGDOM
			ARTICLE 121
			The A rm ed Forces
			Article 121 is drafted in the form of enabling provisions, leaving the
			detailed wording to Act of Parliament.
			It affirms that a standing army (and air force) are dependent on
			statutory approval at least once every five years. Although it has been
			argued, in State Research Bulletin, 1981, p. 149, that the five yearly
			renewal of the mandate for the Armed Forces, in the quinquennial
			Armed Forces Acts, does not meet the prohibition in the Bill of Rights
			1689 on a standing army in peacetime without the consent of Parliament, such a view is not thought to be persuasive. A constitutional
			provision would remove all ambiguity. The Royal Navy’s existence
			also arguably remains subject to the Royal Prerogative. Again, doubts
			as to its legal status would be removed by a constitutional provision.
			121.1 gives authority for the Promulgation of Queen’s Regulations for
			the Armed Forces including the Royal Navy.
			121.1.2 and 1.3 reflect the current practice in the UK.
			121.2 in respect to the Defence Council slightly modifies the current
			position by leaving the composition of membership more flexible.
			ARTICLE 122
			Declaration o f War
			One of the major areas of concern relating to the current legal
			framework for military deployment is the power of the Executive to
			declare war or peace without reference to Parliament. This legal power
			is currently a Royal Prerogative by the Executive in the name of the
			Crown. Although it is, properly, a political decision, prior Parliamentary approval is not now required before a state of war is declared. In
			practical terms, Parliament can, of course, pass a motion of ‘No
			Confidence’ in the government which has thus declared war (the
			Monarch actually signs a Royal Proclamation, but constitutionally
			follows the advice of her Ministers). Parliament may also deny
			funding for the conduct of a war, although presumably the Armed
			Forces could conduct military activities for a lengthy period of time
			COMMENTARY 113
			before the necessity to levy further taxation to fund hostilities would
			arise. Parliament could also enact legislation after the declaration of
			war to remove the prerogative power to declare war and to regulate the
			deployment of the armed forces.
			In terms of a written constitution however, the objective is to ensure
			that Parliament’s prior approval to a declaration of war is granted. One
			rationale for past reliance on the prerogative power was the logistical
			problem in convening Parliament quickly and in enacting appropriate
			legislation with sufficient rapidity to meet a sudden crisis of war
			proportions. Transportation and communications problems of previous centuries are, however, hardly justifications for the continued
			retention of the prerogative power to declare war, a power whose
			“democratic” legitimacy is significantly less than where Parliament
			gives its prior approval.
			Article 122 therefore requires that both Houses of Parliament, by a
			two-thirds majority, approve an Order in Council issued by the Head
			of State, which declares a state of war or peace. Any attempt by the
			Executive to circumvent the constitutional provision by referring to a
			“conflict” or to “hostilities” rather than to a state of war could be met
			by legal challenge.
			ARTICLE 123
			Deployment o f armed forces
			The deployment of the armed forces and the responsibility of the
			Secretary of State therefor are removed by Article 123 from the scope
			of the Royal Prerogative and by constitutional provision placed firmly
			within the scope of Statute law whose detailed provisions can be
			enacted subsequently. Currently prerogative deployment of the Armed
			Forces is not justiciable before the courts. There may be grounds for
			adhering to this “hands o ff’ approach during wartime, in as much as the
			courts should not be expected to second-guess the appropriate military
			strategies or tactics to be employed during conflicts. But it may be
			noted that “military activities” can embrace a wide range of activities
			both remote from, as well as directly connected with, actual troop
			deployments. Thus, while Lord Parker of Waddington in The Zamora
			[1916] 1 AC 77 at p. 107, stated that,
			“Those who are responsible for the national security must be the
			sole judges of what the national security requires”,
			114 COMMENTARY
			Lord Scarman, in Council o f Civil Service Unions v Minister fo r the
			Civil Service [1985] AC 374, [the GCHQ case] added that,
			“These words were no abdication of the judicial function, but
			were an indication of the evidence required by the court. In fact,
			the evidence adduced by the Crown [in The Zamora] was not
			sufficient and the court ruled that the Crown had no right to
			requisition [contraband].”
			In other words, the invocation of a plea of national security by the
			Crown should not preclude judicial review based on, for example, the
			“no evidence” doctrine expounded in Secretary o f State fo r Education
			v Tame side MBC [1977] AC 1014 or on the “precedent fact” doctrine
			in Khawaja v SSHD [1984] AC 74.
			Using the above as a springboard we propose, in 123.6 to permit
			judicial review of the deployment of troops both in wartime and in
			peacetime, though the standard of review should be mountainous in the
			former case. In both cases matters of opinion, as distinct from matters
			of fact, are unlikely to be challengeable.
			That the Crown has claimed a prerogative right to deploy troops in
			peacetime is incontrovertible though the legal basis therefor may be
			more debatable. See, in particular, Chandler v DPP [ 1964] AC 763 for
			peacetime deployment. Indeed, according to Steve Peak in Troops in
			Strikes, Cobden Trust, 1984, the deployment of troops on “urgent work
			of national importance” under Section 2 of the Emergency Powers Act
			1964, for which no Royal Proclamation of emergency is required
			before triggering the powers, merely reiterates the common law
			prerogative power. Such powers would, therefore, implicitly cover
			peacetime deployment as well as wartime deployment or deployment
			during a “precautionary period” or during une état de Siege. Indeed,
			Lawrence L.J. explicitly states in China Navigation Co. Ltd. v
			Attorney General [1932] 2 KB 197,
			“The powers which the Crown exercises as to the disposition and
			use of the standing Army in times of peace are powers vested in
			the Crown by prerogative right at common law and are not
			powers conferred upon the Crown by Statute”.
			This was in response to counsel for the plaintiffs’ claim that such
			deployment was conferred by statute (see also [Public Record Office]
			WO 32/2533, “Historical Memorandum on the position of the Crown
			COMMENTARY 115
			in relation to the Land Forces by way of reply to the Memoranda
			furnished by the Treasury Solicitor,” by Sir Leslie Scott, KC, counsel
			to the plaintiffs).
			Whether or not a historical precedent exists for the statutory regulation
			of the deployment of the Armed Forces in peacetime, the argument in
			principle for such regulation is justified in broad democratic terms.
			Peacetime deployment covers three broad areas: Military Aid to the
			Civil Power (MACP) (123.2) relating to the maintenance of public
			order where the civil forces are inadequate to meet the perceived threat
			to internal security; Military Aid to the Civil Ministries (MACM)
			(123.3) relating principally to the use of troops to ensure the maintenance of essential supplies and services, especially during industrial
			action; and Military Aid to the Civil Community (MACC) (123.4)
			involving the use of troops to alleviate civil distress such as that
			following natural disasters.
			Historically, MACP has been exercised under the common law when
			magistrates called upon the troops to maintain public order in circumstances where the police appeared to be unable to do so. Whether the
			power was a prerogative power or not is not free from doubt although
			the Northumbria Police Authority case, [1988] All ER 556, claimed to
			identify a prerogative power on the part of the Executive to “maintain
			the peace of the kingdom”. The authority for that proposition was,
			however, distinctly weak. The opportunity should now be taken
			formally to abolish by Statute under 123.2 the common law powers of
			the magistrates (whether derived from the prerogative or not) and to
			replace them by the limited powers of the appropriate Minister, subject
			to the approval of Parliament and to the concurrence of the Defence
			Council (in 123.5).
			According to the Manual o f Military Law (Part 2, paras 2 and 3), at
			common law, “. . . a soldier must come to the assistance of the civil
			authority where it is necessary for him to do so but not otherwise”. A
			statute made under 123.2 may well incorporate this requirement.
			In respect to MACM and MACC, legal authority currently derives
			from the emergency powers legislation of 1920 and 1964. In the
			former, a Royal Proclamation may be issued declaring a state of
			emergency when events occur,
			116 COMMENTARY
			. . of such a nature as to be calculated by interfering with the
			supply and distribution of food, water, fuel or light, or with the
			means of locomotion, to deprive the community, or any substantial portion of the community, of the essentials of life...”
			Regulations may be issued by the Privy Council which may have
			severe effects on civil liberties, though certain regulations are subject
			to affirmative resolutions of both Houses.
			David Bonner, in Emergency Powers in Peacetime, (Sweet & Maxwell,
			1985, Chapter 2), has persuasively shown how inadequate are the
			safeguards against Executive abuse contained in the current legislation
			conferring emergency powers. The constitutional provisions in 123.3
			to 123.6 are intended to offer a framework for emergency legislation
			which upholds the constitutional role of Parliament vis-á-vis the
			Executive by guaranteeing fundamental rights, by stressing the temporary nature of such powers, by ensuring Parliamentary oversight of
			Executive decision making, by requiring the assent of considerably
			more than two members of the Defence Council (the current position)
			before troop deployment might be authorised, and by emphasising the
			role of judicial review in regulating the Executive in this area. The
			meaning of phrases such as “urgent work of extreme national importance”, and “for the maintenance of essential supplies and to preserve
			life and livelihood” should be aided by interpretation clauses in the
			relevant legislation.
			ARTICLE 124
			Visiting forces
			Article 124 is based on Article 23 of the Commonwealth o f Britain Bill
			presented in the House of Commons by Tony Benn MP in May 1991.
			It’s object is to ensure that Parliament’s prior consent is obtained before
			the armed forces of any foreign country, or their equipment, are based
			in the UK or used in its airspace or territorial waters. The terms on
			which the armed forces of another state may visit the UK, including the
			powers and responsibilities of those forces must be set down in
			legislation. The Article is intended to ensure that US forces and their
			nuclear weapons, for instance, could only be sited in the UK with the
			consent of the majority of Members of Parliament. In the absence of
			this constitutional requirement it was possible for the Government to
			allow US forces to be based in the UK, and to use its air bases to launch
			air strikes on Libya, for instance, without reference to Parliament.
			COMMENTARY 117
			ARTICLE 125
			Police
			The object of Article 125 is to ensure that Parliament, and the Scottish
			and Northern Ireland Assemblies legislate to provide for the establishment, organisation, management and financing of whatever number of
			police forces those bodies shall determine for England and Wales,
			Scotland and Northern Ireland respectively. The Article makes certain
			particular requirements intended to enhance equal opportunities within
			the service, strengthen the system of accountability, ensure the independence of the complaints procedure and that effective redress is
			given to individuals adversely affected by the “defective performance”
			of the police in carrying out their functions:
			125.2 ensures that those responsible for appointing police officers will
			be charged with the same duty imposed on the Judicial Services
			Commission and Public Services Commission: that they must adopt
			procedures which will ensure that adequate numbers of candidates of
			both sexes and from diverse, racial, religious and social backgrounds
			are considered for appointment.
			125.4 seeks to address the concern about the lack of accountability of
			the police to elected representatives. Under the 1964 Police Act, each
			police force in England and Wales is, for instance under the “direction
			and control” of its chief constable. Police Authorities, Committees of
			the County Council (or Joint Boards in the former Metropolitan
			Counties) include within their composition one-third non-elected
			magistrates and are charged only with ensuring the “adequacy and
			efficiency” of the force. They are given few powers with which to fulfil
			this responsibility and in the exercise of most of these powers are
			subject to the Home Secretary’s veto. The Constitution, in 125.4, does
			not attempt to lay down the institutional arrangements for accountability nor to determine the precise relationship between the police and
			locally and nationally elected representatives. But it does require that
			the legislation shall provide the means whereby each police force can
			be held accountable “with respect to the performance of its functions”
			to a body of elected representatives at the local. Assembly or Parliamentary level.
			125.5 would ensure that the actions or omissions of individual police
			officers or police authorities are investigated by an independent body
			which would have the power to carry out investigations on receipt of
			118 COMMENTARY
			complaint or on its own initiative. 125.6 provides that those adversely
			affected by the defective performance of the police or police authorities could obtain effective redress.
			ARTICLE 126
			National security
			Article 126 defines the meaning of national security, provides that no
			security services shall be established except by Act of Parliament,
			requires the establishment of a National Security Committee of the
			Cabinet, and makes the Prime Minister directly responsible to Parliament for the performance of the security services.
			The definition of national security, the statutory basis for all security
			operations and the accountability to Parliament of the Prime Minster
			alter, strengthen or formalise existing arrangements which are largely
			under prerogative powers.
			126.1 defines national security as the protection of the territorial
			integrity of the United Kingdom and the safety of its citizens, and the
			maintenance of the Constitution against espionage, sabotage or subversion, or the use of violence for political ends or against groups
			defined by race or religious beliefs. The intention is to make clear first
			what is to be protected and second against what activities that protection shall be afforded. An illegal or unconstitutional attempt to secede
			by any part of the United Kingdom would qualify as a threat to national
			security, as would any attempt to deny the rights of individuals as
			guaranteed by the Constitution, either by subversion or by the use of
			violence. The definition also provides for protection against the use of
			deceptive or clandestine methods of undermining constitutional government. This would apply to covert attempts to influence domestic
			politics by outside bodies, whether governmental or corporate, through
			the dissemination of misinformation and so forth.
			126.2 provides that no public authority shall be established for the
			purposes of national security except by Act of Parliament and that only
			those employed by such statutory agencies may undertake national
			security work. This provision is intended to prevent the proliferation
			of security agencies and the use of unauthorised agencies for security
			work.
			126.3 brings the officers of any statutory security service within the
			general provisions of the Constitution for the public service, but allows
			COMMENTARY 119
			the Public Services Commission to make special arrangements where
			necessary for the effective performance of their functions. This
			recognizes that security work has peculiar features, but brings it within
			the ambit of the Public Services Commission, so that there is some
			independent scrutiny of any special arrangements.
			126.4 requires the Prime Minister to establish a National Security
			Committee of the Cabinet to exercise general direction over the
			activities of the security services and gives the Prime Minister rights
			of access to all information and all records relating to the activities of
			the security services and direct responsibility to Parliament for the
			proper and lawful performance of their functions. The Prime Minister
			must make an annual report to Parliament concerning the activities of
			all the Security Services, which may exclude matters which the
			Cabinet Committee (and the Inspector General for Security Services)
			consider may be prejudicial to their performance. Like 126.3,126.5.2
			recognises the peculiar position of security work.
			ARTICLE 127
			Inspector General o f Security Services
			It is difficult to guess how far the fact of putting the security services
			on a constitutional and statutory footing will make any practical
			difference to the ways in which they operate. Public accountability is
			inherently difficult. Ministerial control is likely to be exercised
			intermittently and it is clear that what Prime Ministers may be entitled
			to know is different from what they may want to know.
			For this reason, following Canadian and Australian precedents, Article
			127 establishes an Inspector-General of Security Services, appointed
			by the Head of State on the advice of the Prime Minister from
			nominations made by the Public Services Commission (roughly the
			method adopted for the appointment of Bishops in the Church of
			England). The Inspector-General’s duties include: to monitor compliance by the Security Services with their operational policies; to review
			applications for and the use made of warrants (presently provided by
			the Security Services Act 1985); to receive and investigate individual
			complaints about their activities; to conduct formal investigations into
			activities inconsistent with their operational policies or improper; and
			to make recommendations, including for compensation to persons
			adversely affected by their activities.
			For those purposes 127.3 provides the Inspector-General with access
			120 COMMENTARY
			to whatever information or personnel he considers necessary. The
			Inspector-General is to report as circumstances require to the National
			Security Committee and to submit an annual report to a Select
			Committee of the House of Commons, subject again to the exclusion
			of matters prejudicial to the proper performance of the security
			services’ functions.
			ARTICLE 128
			Suspension o f the Constitution
			Article 128 provides for the suspension of parts of the Constitution in
			times of emergency, subject to Parliamentary approval or confirmation.
			Under 128.1 the Head of State, acting on the advice of the Prime
			Minister, may by order in Council suspend provisions of the Constitution in the event of a grave threat to national security or public order
			or a grave civil emergency. This power may only be used to “the extent
			strictly required by the exigencies of the situation and reasonably
			justified in a democratic society”. 128.4and 128.5 further provide that
			the Order in Council must be approved or confirmed by a two-thirds
			majority of those voting in each House of Parliament. Orders can only
			be made for a specified time but can be renewed (128.7).
			The Articles of the Constitution which may be suspended include the
			Bill of Rights, with the exception of the Articles guaranteeing the right
			to life, freedom from torture, freedom from slavery, treatment of
			persons in detention, right to a fair hearing in criminal cases, prohibition of retrospective offences, freedom of thought, and the equal
			protection of the law.
			Other Articles which may be suspended include those governing the
			expiry and dissolution of Parliament and the Assemblies (60.1 and
			78.4) and the electoral cycle (Schedule 3, Part 3), and constitutional
			legislation made under Article 70 as it affects any provision of the Bill
			of Rights or the civic rights of non-nationals under Article 33.
			The aim is to allow the limited suspension of certain civil rights eg to
			freedom of speech or movement and the suspension of certain domestic activities eg elections during an emergency, subject to time limits,
			Parliamentary control, and challenge in the courts by application for
			judicial review under 128.6.
			COMMENTARY 121
			ARTICLE 129
			Detention in Emergencies
			Article 129 provides safeguards for anybody detained during an
			emergency by an Order in Council under Article 128.
			These safeguards include: the right to a statement of the grounds for
			detention within seven days; the publication of the previous detention
			within seven days; the review of the detention by an independent
			tribunal, within three weeks of the detention and thereafter at intervals
			of not more than six months; and representation before the tribunal
			(129.1.1-4)
			Under 129.2 the tribunal reviewing a detention may make recommendations about its continuance, which will be communicated to the
			detainee, but the authority which ordered the detention does not have
			to act on the recommendation, unless an Act of Parliament or the Order
			in Council obliges it to do so.
			These are minimal procedural rights for detainees which may help to
			reduce the chances of mistakes or maltreatment and also the apprehension and anxieties of those detained, their families and friends, if
			properly implemented.

			123
			SOME IPPR PUBLICATIONS
			Constitution
			A British Bill o f Rights
			Anthony Lester et al December 1990
			ISBN 1 872452 18 3 £10.00
			The first part of IPPR’s written Constitution for the UK. This is the
			most comprehensive and up-to-date proposal for a Bill of Rights and
			explains the need for a Human Rights Commission to assist complainants and investigate those government policies which infringe rights.
			An Experiment in Freedom: The Case fo r Free Local Authorities
			in Britain
			John Stewart June 1991
			ISBN 1 872452 32 9 £7.50
			- argues that it is time for Britain to learn from Scandinavia and
			devolve more power to local communities. In Scandinavia central
			government has freed local authorities to try out their own ideas for
			planning and delivering services and the result has been to stimulate
			initiative, to bring decision-making to the people and to improve the
			quality of local provision.
			M aking the Commons Work: Information Analysis and
			Accountability
			Peter Bennett and Stephen Pullinger July 1991
			ISBN 1 872452 39 6 £3.00
			- argues that the balance of power and resources between Parliament
			and Executive is heavily biased toward Government. The ability of
			MPs to scrutinise policy and hold Ministers to account is often
			frustrated by inadequate resources and lack of specialist knowledge.
			The report offers a package of measures to ‘make the Commons work’
			which are simple and relatively cheap and would have instant effect on
			parliamentary scrutiny and government accountability.
			What Next? Agencies, Departments and the Civil Service
			Anne Davies, John Willman August 1991
			ISBN 1 872452 32 9 £10.00
			Considers the constitutional implications of devolving Government
			functions to Agencies, and the issues facing the civil service as it
			divides more sharply into service delivery and policy work.
			124
			Decentralisation in the United Kingdom
			James Comford, Josh Hillman, Jeremy Mitchell (forthcoming)
			Explores in more detail the proposals for decentralisation contained in
			The Constitution, with particular attention to the problems of boundaries, functions, finance, the electoral system and the relations between
			central, regional and local government.
			Social Policy
			Health Before Health Care
			Stephen Harrison et al June 1991
			ISBN 1 87242 34 5 £7.50
			Proposes a practical approach to health policy which seeks to promote
			better health for the nation as a whole, and argues for a radical
			reorganistion of welfare services, in which the National Health Service
			plays a less dominant role.
			Is Quality Good fo r You? A Critical Review o f Quality Assurance
			in Welfare Services
			Naomi Pfeffer and Anna Coote July 1991
			ISBN 1 872452 36 1 £10.00
			Explores the politics behind the pursuit of quality in public services.
			Proposes a new ‘democratic’ approach for a modem welfare system
			seeking to reconcile equity and freedom.
			Equal Rights fo r Disabled People: the case fo r a new law
			Ian Byrne, Mike Oliver September 1991
			ISBN 1 872452 46 9 £5.00
			Proposals for a law against unfair discrimination on grounds of
			disability.
			Citizens’ Rights in a Modern Welfare System
			Edited by Anna Coote November 1991
			ISBN 1 872452 45 0 £10.00 (forthcoming)
			Papers by Raymond Plant and others deal with rights to fair treatment;
			health, social work and community care; children’s rights, equal rights
			for people with disabilities and local service agreements.
			125
			M eeting Needs in the 1990s: The future o f public service and the
			challenge fo r trade unions
			Bill Callaghan, Anna Coote, Geoffrey Hulme, John Stewart April’91
			ISBN 1 872452 26 4 £7.50
			Argues that Britain needs services that provide value for people, as
			well as value for money. It tackles contracting out local services;
			changing negotiating structures; the need for local diversity and
			experimentation and developing a framework of users’ rights in health
			and welfare services.
			‘...a genuinely new vision of community government’. Rodney Bickerstaffe, General Secretary, NUPE 23.4.91
			The Third Age o f Broadcasting
			David Boulton May 1991
			ISBN 1 872452 33 7 £6
			Calls for higher quality standards for the independent TV companies;
			replacement of BBC’s licence fee by direct public funding; the
			creation of a House of Commons Select Committee on Broadcasting
			Affairs; abolition of the Broadcasting Standards Council and the
			introduction of a new Independent Radio Commission.
			The Family Way: A New Approach to Policy-Making
			Anna Coote, Harriet Harman, Patricia Hewitt Sept 1990
			ISBN 1 872452 15 9 £10
			The most comprehensive analysis of changing patterns of family life
			and their implications for policy.
			‘The Government should swallow its pride and adopt this proposal
			which is an example of the new realism that augurs well for a future
			Labour government.’ Sunday Mirror 23.9.90
			Child Care in a Modern Welfare System: Towards a new National
			policy
			Bronwen Cohen August 1991
			ISBN 1 872452 41 8 £10.00
			Child care should play an important role in a modem welfare system.
			Practical proposals for flexible and responsive child care services.
			126
			Education
			A British ‘Baccalauréat’: Ending the Division Between
			Education and Training
			David Finegold et al July 1990
			ISBN 1 872452 09 4 £10.00
			Recommends a ‘British Baccalauréat’ replacing A’ levels and vocational awards to be taken by pupils at 18. IPPR’s pioneering proposals
			have been adopted by, amongst others, the Royal Society and the
			Labour Party.
			‘At last a distinguished body is bold enough to stand up and recommend radical reform.’ Sunday Correspondent 1.7.90
			A National Curriculum fo r All: Laying the Foundations fo r
			Success
			Philip O ’Hear, John White May 1991
			ISBN 1 872452 31 0 £10.00
			Asserts that the National Curriculum has placed new demands on
			teachers and children. But its aims are vague, and its methods
			confused. This report argues for the centrality of personal academic
			and social development to the curriculum, and suggests new contours
			for the National Curriculum.
			Economic
			Quality and Choice in Housing: A Framework fo r Financial
			Reform
			Stephen Merrett April 1991
			ISBN 1 872452 23 X £7.50
			Calls for the withdrawal of mortgage interest subsidy to suppress
			future house price inflation and release resources for new housebuilding. It proposes to revive private rented housing and tackle the
			problem of homelessness by raising private funds for local authorities
			and housing associations to build new homes.
			‘Mr Merrett’s reforms would slaughter a shedful of sacred Thatcher
			cows’. Birmingham Post 16.4.91
			127
			Good Housekeeping: How to Manage Credit and Debt
			Will Hutton March 1991
			ISBN 1 872452 22 1 £7.50
			Stresses that while interest rates are the only means for restraining
			credit, Britain will face higher interest rates again in the next few years
			and proposes the establishment of a reserve asset regime, measures to
			discriminate between consumer credit and business investment and the
			reform of housing finance.
			A Stake in the Company: Shareholding, Ownership and ESOPs
			James Comford April 1990
			ISBN 1 872452 04 3 £10.00
			Compares small individual shareholding with employee ownership
			and examines the prospects for ownership of companies by the people
			who work for them. Changes are suggested to the 1989 Employee
			Share Ownership Plan to make it more attractive to owners, managers
			and employees.
			Green
			Ecological Food Production: A Food Production Policy fo r
			Britain
			Michael Begon April 1991
			ISBN 872452 25 6 £7.50
			Proposes an ecological grade for farming and food production and
			encourages methods that conserve the balance of natural systems, but
			are supplemented by chemical means where appropriate.
			The CAP and Green Agriculture
			David Harvey April 1991
			ISBN 1 872452 24 8 £6.00
			Argues that CAP is no longer sustainable, and proposes a Producers’
			Entitlement Guarantee for farmers with fixed produce levels and
			prices driven by world markets. It urges the EC to link support direct
			to farmers and to link at least part of farm support payment on to ‘green’
			agricultural processes.
			128
			Industrial
			Unnatural Monopolies: Telecommunications in the 1990s
			Richard Hooper Feb 1991
			ISBN 1 872452 19 1 £6.00
			Argues for wider competition on the trunk network, combined with a
			local duopoly of BT and cable companies both eventually offering
			telephone and television services.
			Employment
			Working Time: A New Legal Framework?
			BobHepple Sept 1990
			ISBN 1 872452 14 0 £5.00
			Proposes a Working Time Act to balance employer demands for
			flexibility, worker demands for greater autonomy, and demands from
			the unemployed for a cut in working hours to help create job opportunities.
			Defence and Security
			Britain, Germany and the New European Security Debate
			Oliver Ramsbotham May 1991
			ISBN 1 872452 27 2 £10
			Compares political positions in Britain and Germany and argues that
			the security policies of the British political parties should now be
			scrutinised and developed as part of the wider debate about ‘our
			common European home’.
			All publications half price to students. There is no charge for postage
			and packing for the UK.
			For all European countries p&p is £ 1.00 per publication. Airmail to all
			other countries p&p is £2.50 per publication
			Available from IPPR
			30/32 Southampton Street, London WC2E 7RA