Select Committee on Constitution First Report


11 July 2001

By the Select Committee on the Constitution





1. The House has appointed us[1] as a Select Committee on the Constitution with the following terms of reference:

To examine the constitutional implications of all public bills coming before the House; and to keep under review the operation of the constitution.

2. This report gives our preliminary analysis of what these Terms of Reference mean and in particular covers:

  • the background to the establishment of the Committee;
  • the implications of the terms of reference for how we might work;
  • some of the topics the Committee might consider;
  • the possible overlap with the work of other committees; and
  • the resources and support available to the Committee.

The final chapter sets out our conclusions on these issues in summary form.

Background to the proposal for the Committee

3. The Royal Commission on the Reform of the House of Lords[2] made the following recommendation:

    "The second chamber should establish an authoritative constitutional committee to act as a focus for its interest in and concern for constitutional matters."

4. The Royal Commission indicated[3] that their recommendation was "building on recommendations made from across the political spectrum". They cited three witnesses in particular: the Labour Party; the former Prime Minister, the Rt. Hon John Major MP; and the Lords' own Delegated Powers and Deregulation Committee[4]. In the following three paragraphs we set out in some detail the evidence the Royal Commission received from these three witnesses, in the order in which it is covered by the Royal Commission's Report.

5. The Labour Party wrote:

    "The Labour Party believes that there may be scope for developing the constitutional functions of the House of Lords. One option which the Labour Party invites the Royal Commission to consider is the creation of a sessional committee devoted to constitutional affairs which would:
  • Scrutinise all bills to consider their constitutional implications and in particular their implications for designated legislation (such as the Scotland Act 1998, the Government of Wales Act 1998, and the Northern Ireland Act 1998).
  • Keep under review the operation of the "constitution", including the recent reform initiatives, as well as any which may be enacted in the future.

The Labour Party recognises that it would be unusual in the British system for a parliamentary committee to have such a dual role. But it would not be unprecedented.

The Labour Party believes that an initiative of this kind would be an important way of reinforcing the constitutional role of the House of Lords in a positive and constructive fashion.

The legislative and scrutiny functions which such a committee could be asked to undertake would complement proposals for the modernisation of the present procedures of the House of Lords…

The Labour Party would not be in favour of giving the House of Lords additional powers of veto over bills which were thought to affect legislation of constitutional significance. We see no reason in trying to distinguish constitutional from other legislation for this purpose".

6. Former Prime Minister John Major wrote to the Royal Commission in the following terms:

    "In the absence of a written constitution it is all too easy to promote radical changes and we are currently experiencing major constitutional upheaval. Equally, there are times when parts of the constitution can become silted up. In both circumstances it seems to me to be highly desirable to have in place a respected committee of distinguished people who understand how the British constitution works and who are under a duty to produce independent, dispassionate and authoritative reports on problem areas within the constitution and on proposals for changing it. They could be asked to produce a report on any Bill with constitutional implications, but I would also expect them to keep an eye on the constitutional implications of European legislation and of developing case law.

Issues could of course be referred to such a Committee for consideration, but I believe it should have proactive terms of reference and be able to make up its own mind as to what constituted a "constitutional" matter.

The general aim would be to limit scope for ill-considered constitutional change whilst also ensuring that simmering discontents are identified and dealt with in a flexible and evolutionary way. A Lords Committee would have the characteristics necessary to play an effective role in this area."

7. The House of Lords own Delegated Powers and Deregulation Committee wrote:

    "In our submission, the House of Lords could have been considerably assisted by advice from a constitutional Committee whose members were well versed in such issues, and—an important point—used to examining legislation from this viewpoint on a regular basis, and thus able to give a balanced overview of what was, and what was not, appropriate … A Legal and Constitutional Committee is a noticeable absentee in the panoply of Westminster Committees, and one that is all the more striking since the United Kingdom does not have a written constitution. It is an area in which we believe that the House of Lords, whose members include a significant number of experienced parliamentarians and lawyers, could use its expertise to good effect".

8. The Royal Commission concluded that:

    "One of the most important functions of the reformed second chamber should be to act as a constitutional long stop, ensuring that changes are not made to the constitution without a full and open debate and full awareness of the consequences".

9. The Royal Commission did not, however, wish to see the second chamber given additional powers in respect of designated constitutional legislation, nor in respect of constitutional issues as such. Their argument was that:

    "there is no satisfactory basis on which this could be done and no suitable machinery for adjudicating whether a particular bill raised constitutional issues".

10. The Royal Commission accordingly recommended the establishment of a committee to consider constitutional matters and on 17th July 2000[5], the House approved the principle of such a committee. We were formally appointed last session on 8th February 2001; and re-appointed this session on 28th June 2001.

The implications of our terms of reference for our method of work

11. The terms of reference of our Committee are:

    i) to examine the constitutional implications of all public bills coming before the House; and

    ii) to keep under review the operation of the constitution.

Given the breadth of these terms of reference, we decided, as a first report to the House, to conduct this brief inquiry into what we might do and how we might go about our work. We agreed to look at the work of parallel committees in the United Kingdom Parliament and other Parliaments and how they operate. We also considered how the Government deals with constitutional matters.

12. In considering our terms of reference we decided to take evidence from the leaders of the three political parties in the House of Lords and the Convenor of the Cross-Bench Peers, as well as from the Chairmen and advisers of what seemed to us to be the most cognate parliamentary committees at Westminster. We are very grateful to all those who came to give evidence to us for the helpful and constructive dialogue we were able to engage in. The evidence that we took is printed with this report[6]. We did not issue a formal public call for evidence, although our inquiry was announced by way of a press release. We did however, receive various unsolicited written submissions from individuals. We are very grateful to those who have submitted papers to us in this way and we hope that those who did not do so during the course of this inquiry will feel free to do so in the future as our method of working evolves as it surely will. We aim to make contact and keep in touch with a range of other bodies whose work may overlap with ours[7].

13. One of our witnesses, Lord Alexander of Weedon, Chairman of the Delegated Powers and Deregulation Committee told us (Q 20) that other second chambers in the world seem to have a more active constitutional role than the House of Lords. We have conducted some brief research into what appeared to us to be similar committees in other parliaments. It is certainly the case that many parliaments have committees dealing with constitutional affairs. It appears common for the constitution to form part of a remit that includes other topics, most typically legal affairs. We offer some illustrative examples. The Australian House of Representatives has a Standing Committee on Legal and Constitutional Affairs, while the Australian Senate has a Legal and Constitutional Legislation Committee. The Israeli Knesset has a Constitution, Law and Justice Committee. Our impression, from a brief review of such committees, is that the work of the committees is taken up more with the legal rather than the constitutional dimension. Committees that focus exclusively on the constitution appear to be the exception rather than the norm. The Polish Sejm has a Standing Committee on Constitutional Accountability. The Japanese House of Councillors (the Upper House in Japan) has a Research Commission on the Constitution. As far as we can ascertain from our research, which is not exhaustive, we appear to be distinctive but certainly not unique in having terms of reference that focus exclusively on the constitution. As a committee appointed in a second chamber, we appear to be in line with the practice of some, but not all, legislatures. As our example of Australia shows, in some parliaments such committees are appointed in both chambers. In some, it is solely the first chamber. In others, it is the second chamber. We are in a not dissimilar position to Canada, where scrutiny of constitutional matters is undertaken by a Legal and Constitutional Affairs Committee in the appointed second chamber.

14. The conclusion we draw from such comparisons, from the evidence we have taken and from our discussion of it is that there is a need for us to set some boundaries to the scope of our work. We also need to examine both the purpose and methodology of any scrutiny that we may undertake on individual bills; and establish an efficient and viable method of working with the other parliamentary committees which operate in what might be thought to be constitutional areas. The following chapters of this report accordingly deal with each of these topics in turn before we present our conclusions in our final chapter.

1   Our membership is listed in Appendix 1, together with declarations of interests. Back

2   Chaired by Lord Wakeham. Its report was published in January 2000 as a Command Paper entitled "A House for the Future" (Cm 4534).  Back

3   Op.Cit n2 above, paras 5.17-5.20. Back

4   Mostly referred to as such in this report (DPDC). At the start of the present session the Committee became the Delegated Powers and Regulatory Reform Committee: we occasionally use that title when looking forward. Back

5   On a motion to approve the Second and Third reports from the Liaison Committee: HL Debs Cols 584-589. Back

6   A full list of witnesses is printed in Appendix 2. Back

7   These could include the Committee on Standards in Public Life; the Electoral Commission; and the Hansard Society. Back

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