House of Lords - The Process of Constitutional Change

The Process of Constitutional Change - Constitution Committee Contents

The Process of Constitutional Change

CHAPTER 1: Introduction

The importance of process

1. The constitution is the foundation upon which law and government are built. The fundamental nature of the constitution means that it should be changed only with due care and consideration. Since the constitution matters, so does the process by which the constitution is changed. As we stated in our recent report on the Fixed-term Parliaments Bill:

2. A good process does not necessarily equate to a good outcome, nor will the outcome of every proposed change be anticipated at the time the change is made. But where there is consensus on the process to which a proposed constitutional change has been subjected, that change will be more widely acceptable, whether or not the merits of the change are universally agreed. Furthermore, when scrutinising a proposed change, it will be easier to focus on those merits if there is a settled agreement about the process. We therefore believe that the constitutional process is important and that an agreement should be reached as to what that process should be.

A decade of constitutional change

3. The Constitution Committee was first appointed by the House of Lords in February 2001. In one of our first reports, Changing the Constitution: the Process of Constitutional Change, we examined "the present means of achieving constitutional change, looking in particular at whether the process within Government is open and efficient and whether the means of parliamentary scrutiny are adequate."[2] In the ten years since, we have frequently returned to this issue, particularly in the context of a number of reports on specific bills.

4. At the time of our establishment, the United Kingdom had just been through a period of significant constitutional change, including the passing of the Scotland Act 1998, the Government of Wales Act 1998, the Northern Ireland Act 1998, the Human Rights Act 1998, the House of Lords Act 1999 and the Freedom of Information Act 2000. Proposals for further significant change have often been on the agenda since then, in particular following the May 2010 general election. Professor Robert Blackburn stressed, in evidence given to us last October, that "Looking back over the past ten years or so, process has been a constant problem in constitutional reform."[3] We do not single out for criticism the present Government's approach to constitutional change—the principles we identify apply to all governments. Nor does this report examine the pros and cons of individual proposals.

5. In this report we first set out what we mean by constitutional change, followed by an analysis of current practice and our proposal for a new constitutional process. We emphasise the importance of working with the grain of current constitutional conventions and practices rather than attempting to establish a new legal order for constitutional change. We believe that our approach is pragmatic and achievable, enabling the flexibility of the United Kingdom's constitutional arrangements to be retained whilst enhancing and underpinning those arrangements.

The meaning of constitutional change

TERMINOLOGY

6. In our initial call for evidence for this inquiry we referred to the process of constitutional "reform". However, it has become clear during our evidence taking that this word carries an implication that proposals should be seen as positive developments. As Professor Sir Jeffrey Jowell stated: "The notion of reform often implies that you are moving in some way to a higher plane or a better world. One may disagree."[4] For that reason, we have followed the precedent of the Committee's members ten years ago by using the term "constitutional change" rather than "constitutional reform".

THE DIFFICULTY OF DEFINING A CONSTITUTIONAL CHANGE

7. It was common ground amongst our witnesses that, because the United Kingdom does not have a codified constitution, no watertight definition of a constitutional change to which a special process may apply can be given. A number of our witnesses pointed to the fact that the UK constitution consists not only of statutes, but of conventions, practices and underlying principles such as parliamentary sovereignty and the rule of law.[5] Democratic Audit summarised the difficulty which this presents for the establishment of a constitutional change process:

8. Professor Feldman distinguished between this "sort of inevitable, constant change, which is not part of a large overarching plan"[7] and "trying to give effect to [the fundamental values of the constitution] through a new, better and more appropriate mechanism."[8] It is primarily the second type of change with which this report is concerned. Although such changes do not necessarily require legislation (for example, prior to 2010 the government could re-organise the Civil Service under the Royal Prerogative and may still make other significant machinery of government changes by simple executive decision), they will require a specific, decisive act by the government to which a proper process should be applied.

9. Having limited our field of inquiry to specific, decisive acts of constitutional change, we recognise that the majority of change proposals will require legislation. The doctrine of parliamentary sovereignty means, as David Howarth told us, that: "there is no uncontroversial method of distinguishing constitutional legislation from other legislation. In form, all primary legislation is the same."[9] We believe that constitutional legislation is qualitatively different from other forms of legislation and that the process leading to its introduction should recognise this difference. We therefore attempt in Chapter Three to set out a process which should apply to significant constitutional legislation. We recognise that such a process could also apply to other legislative proposals.

SIGNIFICANT CONSTITUTIONAL CHANGE

10. In this Committee's first report ten years ago we offered our own working definition of the constitution as being:

In addition we set out what we considered to be the five basic tenets of the UK constitution: sovereignty of the Crown in Parliament; the rule of law, encompassing the rights of the individual; the union state; representative government; and membership of the Commonwealth, the European Union and other international organisations.[11] We consider that this definition has stood the test of time; but we recognise that it is not definitive.

11. Professor Sir Jeffrey Jowell preferred to offer no working definition of the constitution, stating that "When you examine legislation, you know what is constitutional. We may not be able to define it, but when we see it, we know it."[12] At a broad level we agree with this, but consider that it is helpful to provide some guidance as to what sort of measures we would consider to be constitutional. Professor Sir John Baker provided the following list of constitutional proposals in relation to which special measures might be applied:

· any alteration to the structure and composition of Parliament;

· any alteration to the powers of Parliament, or any transfer of power, as by devolution or international treaty, which would in practice be difficult to reverse;

· any alteration to the succession to the Crown or the functions of the monarch;

· any substantial alteration to the balance of power between Parliament and government, including the conferment of unduly broad or ill-defined powers to legislate by order;

· any substantial alteration to the balance of power between central government and local authorities;

· any substantial alteration to the establishment and jurisdiction of the courts of law, including any measure that would place the exercise of power beyond the purview of the courts, or which would affect the independence of the judiciary;

· any substantial alteration to the establishment of the Church of England;

· any substantial alteration to the liberties of the subject, including the right to habeas corpus and trial by jury.[13]

12. This list is not exhaustive and the categories of constitutional change are not closed. For example, Richard Gordon QC also provided a list which, in addition to many of the changes listed above, included the constitutional relationship between the Civil Service and the executive and the operational status of political parties.[14] Moreover, as Professor Flinders put it, in relation to all of these areas "there will always be some fuzziness at the boundaries".[15] However, we found this list to be of assistance in determining the basic framework of what is constitutional.

13. Not all constitutional change is of equal significance. We consider that a two-stage test should apply to proposals for a constitutional change process. In the words of Professor Sir Jeffrey Jowell: "you should take it case by case. You ask whether it is constitutional and whether it is so significant that it really ought to merit further delay and discussion."[16]

14. There is a degree of subjectivity in determining what is constitutionally significant. However, in the majority of cases it should not be difficult to determine whether a significant change is being proposed. For example, changes to the electoral system are accepted as being constitutional but, whilst an overhaul of the voting system (such as from first-past-the-post to AV) is clearly significant, minor changes to the rules by which counting officers operate would be less so. We note that under section 3 of the Legislative and Regulatory Reform Act 2006, ministers are not permitted to make a provision removing or reducing regulatory burdens unless that provision "is not of constitutional significance."[17] We believe that Parliament and the executive are able to determine whether a proposed constitutional change is significant.

15. A clear and consistent process should apply to all significant constitutional change. We offer no watertight definition of what is constitutional, but continue to rely on the working definition offered in our first report of 2001. The list provided by Professor Sir John Baker, whilst neither exhaustive nor closed, provides, in our view, a useful guide to the principal measures which would fall under the rubric of significant constitutional change.

The conduct of this inquiry

16. We launched this inquiry in February 2011 and received written evidence from a large number of witnesses. We held a seminar with constitutional experts on 16 March to assist us in setting the context for the inquiry[18] and heard oral evidence from:

· Rt Hon Nick Clegg MP, the Deputy Prime Minister;

· Richard Gordon QC, Brick Court Chambers;

· Professor Sir John Baker, Downing Professor of the Laws of England, University of Cambridge;

· Professor Sir Jeffrey Jowell, University College London, Director of the Bingham Centre for the Rule of Law;

· Professor David Feldman, Rouse Ball Professor of English Law, University of Cambridge;

· Professor Tony Wright, University College London, and a former MP;

· David Howarth, University of Cambridge, and a former MP;

· Dr Alexandra Kelso, Lecturer in Politics, University of Southampton;

· Professor Matthew Flinders, Professor of Parliamentary Government and Governance, University of Sheffield;

· Professor Graham Smith, Professor of Politics, University of Southampton;

· Professor Stephen Coleman, Professor of Political Communication, University of Leeds.

17. The Committee's Legal Advisers, Professor Adam Tomkins, University of Glasgow, and Professor Richard Rawlings, University College London, have acted as Specialist Advisers to the Committee for this inquiry.

18. We are grateful to all our witnesses and advisers for their assistance in our work.

19. We recommend this report to the House for debate.

1 Constitution Committee, 8th Report (2010-2011): Fixed-term Parliaments Bill (HL Paper 69), para 160. Back

2 Constitution Committee, 4th Report (2001-02) (HL Paper 69), para 4. Back

3 Constitution Committee, 5th Report (2010-2011): The Government's Constitutional Reform Programme (HL Paper 43), Q 9. Back

5 CRP 2, paras 5-7 (Professor Sir Jeffrey Jowell), CRP 7, para 11 (Democratic Audit). Back

6 CRP 7, para 14 (Democratic Audit). Back

7 Q 58. Back

8 Ibid. Back

9 CRP 3, para 2. Back

10 Constitution Committee, 1st Report (2001-2002): Reviewing the Constitution: Terms of Reference and Method of Working (HL Paper 11), para 20. Back

11 Ibid, para 21. Back