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 956). 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, 667, 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 9798).
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 198201).
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
11
Similar definitions appear in O. Hood Phillips, Constitutional
and Administrative Law, 6th ed. (Sweet & Maxwell,
1978), p. 5; Anthony King, Does the United Kingdom still have
a constitution? (Sweet & Maxwell, 2001), p. 1. In offering
his own definition, Professor King adds: 'That definition is far
from perfect
but it will do for our purposes'. We adopt
a similar approach. Back
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