House of Lords - Constitution

Select Committee on Constitution First Report

CHAPTER 2: WHAT IS THE CONSTITUTION?

15. The second limb of our terms of reference requires us to conduct broad inquiries into constitutional matters. These will take the form of select committee inquiries, with the Committee deciding at the outset which issues to consider; calling for evidence in writing and from witnesses in person; and deliberating on and producing a report. The terms of reference in this regard are, in line with the usual practice of the House, very broad. In seeking to establish a method of operation within these broad terms of reference, as the House would expect us to do, we considered whether, in setting us up, the House had anything particular in mind for the Committee.

16. During the debate on the Royal Commission's Report[8], the then Leader of the House, Baroness Jay of Paddington, said that a constitution committee would "consider the constitutional implications of legislation and monitor the continuing effect of the changes that are introduced." The Leader of the Opposition, Lord Strathclyde, said[9] that the House could appoint a constitution committee "without direct legislative power but with authority to summon Ministers, to inquire and to report… As centrifugal forces in our constitution grow, surely a function of the Lords might be to hold some constitutional threads together. There is wide agreement that this House might emerge as a special constitutional authority."

17. Against this background, the Committee could, if we so wished, look at any of a wide range of topics within our terms of reference. A glance at the contents page of any book on constitutional matters reveals the wide range of possible headings:

Government
the Royal Prerogative
Parliament
the Judiciary and judicial review
the constitutional position of the Civil Service
citizenship
personal freedoms, liberties and free speech
the EU
devolution
referendums
electoral reform.

18. Many books have been written on, and many attempts have been made to consider, these and other topics which are thought to form the constitution of the United Kingdom. The constitution is said to be in flux, and the sense of what it is constantly evolving. The constitution is uncodified and although it is in part written there is no single, accepted and agreed list of statutes which form that part of the constitution which is indeed written down[10]. While we would not wish, nor would we have the time, to write another such book ourselves, we nevertheless agreed that there was need to set for ourselves some kind of definition of what issues might fall within our remit. We do not see this as a dry academic exercise: our primary motive in doing so is as the first stage in determining which constitutional issues are in fact significant. There are many issues that are politically important both to individuals in the House and outside, and there are many issues which are matters of public debate. We would not wish to become a parliamentary magnet to which issues were attracted merely because the label "constitutional" was attached to them by those who thought them important. A definitional exercise will, in our view, both help us to determine which issues are indeed of significance, and therefore form topics for our consideration, and assist us in working out the boundaries of our work in terms of overlap with that of other committees.

19. We accordingly asked all our witnesses what their definition was of the constitution. We are very grateful to those who responded and also to those who gave good reasons for not supplying a definition as such. We are very conscious that, given everything said in the preceding paragraphs, this was indeed something of a trick question. Lord Alexander of Weedon told us "it is of the essence of our constitution that it is constitutional issues as they evolve. That seems to me largely to defy any attempt at a rigid definition" (Q 23). The Leader of the House, Baroness Jay of Paddington, said that it was "quite difficult to formulate a specific definition" but that the Government understood what was meant by the specifics of constitutional reform and that they did constitute a constitutional package (Q 175). Lord Strathclyde, Leader of the Conservative Peers offered us "anything that affects the way we are governed, the balance between the different powers of Parliament and its associated repositories of powers. It is about the authorities under which we are governed" (Q 128). Lord Rodgers of Quarry Bank, Leader of the Liberal Democrat Peers, offered us "the political and administrative structure, whether based on statute or convention, by which we are governed" (Q 63). Lord Craig of Radley, Convenor of the Cross Bench Peers, while not claiming to have any instant answer, referred to power, the exercise of power and the sharing of the exercising of power, a need for "some form of checking balance" and "a form of consensus or as near consensus as is reasonable to expect to be able to go ahead". He referred to the balance between the various elements exercising authority and power (Q 154). Tony Wright MP, Chairman of the Commons Public Administration Committee, suggested that "the constitution is…. whatever it is at any one time and we make it up as we go along…….it is something to do with the relationship between citizens and the state and between the different parts of the state" (QQ 89, 91).

20. Against the background of these very helpful comments, which serve not least to illustrate the difficulties of any attempt to define a constitution we offer as our own working definition: "the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual."[11]

21. We offer the following as the five basic tenets of the United Kingdom Constitution (phrases in italics indicate subjects falling within the remit of other parliamentary committees, on which we say more below in Chapter 4):

Sovereignty of the Crown in Parliament
The Rule of Law, encompassing the rights of the individual
Union State
Representative Government
Membership of the Commonwealth, the European Union, and other international organisations.

22. We hope that the definition and key tenets given above will provide a useful working basis for the scope of our inquiries. As we have already said, however, we do not wish, nor indeed would we have the time, to become some sort of constitutional sieve, sifting through the fine detail of every constitutional issue whatever its importance. It is for this reason that we will be focusing on significant constitutional issues. As a second stage in determining what those are, we will concentrate on the "two p's": principal and principle. In order to be significant, a constitutional issue needs to be one that is a principal part of the constitutional framework and one that raises an important question of principle. The detail and the mechanics of the operation of the constitution will of course be of interest to us as a consequence of consideration of the basic tenets of the constitution; but we would aim to keep our inquiries at the higher level. The following paragraphs set out some topics that meet these criteria.

23. As well as asking our witnesses for a definition of the constitution, we asked them to suggest what might form our first topics of inquiry. In general terms, Tony Wright suggested that a Lords Committee was a better forum than a Commons Committee to deal with contentious issues, because there was less likelihood of splits on party lines (QQ 95—6). Baroness Jay of Paddington, however, saw a value in us avoiding becoming "a broad point of reference" on controversial or political, rather than strictly constitutional, issues (Q 185). Lord Rodgers of Quarry Bank, speaking in the context of European issues, did not want to see us drawn into "the great issues of our time" but saw no problem in us examining the constitutional aspects of controversial issues (QQ 68, 73).

24. Several witnesses made suggestions for specific topics. The topic of consequences of devolution was suggested by Jean Corston, Lord Rodgers of Quarry Bank and Tony Wright, along with English Devolution, while Lord Strathclyde suggested unicameralism in Scotland and the lack of legislative power in Wales (QQ 45, 64, 94, 136). Lord Alexander of Weedon suggested that we could examine "the boundaries of relationships between the European Union, national government, regional government and within that the position of subsidiarity [and]…. the relationship between central and local government" (Q 27). Lord Strathclyde also drew attention to the importance of the role and authority of Parliament; ministerial accountability; and the use of referendums (QQ 126, 136, 140). Lord Rodgers of Quarry Bank suggested an inquiry into enhancing the role of Private Members (Q 64). Tony Wright floated the role of the monarchy and that of the Lord Chancellor, and the machinery of constitutional change (Q 94). Lord Craig of Radley thought the variety of legislation governing the Armed Forces worthy of study, along with the impact of human rights legislation and European Law (QQ 161,167). Baroness Jay of Paddington drew attention to relations between the two Houses (although a joint committee was proposed) (Q 176). Professor David Feldman, Legal Adviser to the Joint Committee on Human Rights, proposed a study of the relationships between public institutions, including devolution; the executive and parliament; and central/local government relations (Q 46). Topics which some witnesses saw less value in our pursuing included Lords reform; the EU; scrutinising of treaties; the civil service; and issues arising from the monarchy and the use of the royal prerogative (QQ 64, 66—7, 110, 137). We are very grateful for these suggestions which will inform our consideration of future topics, which we will begin without delay.

25. A related question is how far we will, and indeed how far we would be expected to, make recommendations on topics or solely analyse evidence. The Royal Commission seemed to envisage for us some kind of reactive role perhaps focusing on issues raised by legislation coming before parliament, but in giving us the second limb of our terms of reference (to keep under review the operation of the constitution) the House clearly envisaged for us a more proactive role in performing substantive inquiries into topics of interest. How far would the House expect us to conclude our inquiries, whether into topics or bills, with specific recommendations and how far would the House expect us to analyse and present issues to inform the House's own debate?

26. We asked Tony Wright whether our role should be one of cartography, drawing attention to, or educating people about, the way the constitution is shaping and as a principal task helping people understand change. He suggested that good reports "will have an educative function because they will cast light into areas where light is not usually cast". He suggested, however, that the primary purpose of such reports would be to "carry forward thinking and action in these areas" but stressed that the two activities were essentially complementary and the Committee would not be forced to choose between them (QQ 97—98). Lord Craig of Radley suggested that we should begin by making reports to inform the House and only subsequently move to making recommendations (Q 155) and Baroness Jay of Paddington too suggested that our work at this stage….."must be primarily a mapping exercise". She suggested that the House would wish to be kept abreast about what was happening in the changing world of the constitution, and, in time, receiving advice on specific items such as the Treaty of Nice. Mapping was not undynamic or static but helping people to make sense of a changing landscape. She added that reports from Committees were at their "most authoritative and forceful" when focused (QQ 198—201).

27. Our conclusion on this question is that we will work within the tenets of the United Kingdom Constitution outlined above and that we should focus on issues of constitutional significance determined in accordance with our test of the "two p's": does an issue raise an important question of principle about a principal part of the constitution? We consider that, not least given the present atmosphere of constitutional change and development, the work under the second limb of our terms of reference, "to keep under review the operation of the constitution", will constitute our primary activity. We would hope that our work would inform debate and discussion on significant questions and provide authoritative analysis. We will of course feel free to present any conclusion that we reach during the course of our deliberation on topics in this way. The House will not expect us to be partisan but equally, as with other committees, will also not wish us to steer away from offering clear recommendations when we feel it necessary to do so. We say more in the next chapter about how we intend to operate in considering legislation.

8 7 March 2000, HL Deb. col 913. Back

9 col 922. Back

10 This point was recognised by the Royal Commission (see paragraph 9 above). Back