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:
"Process is critical in terms of upholding,
and being seen to uphold, constitutional values: particularly
those of democratic involvement and transparency in the policy-making
process. Moreover, we believe that a proper process is the foundation
upon which successful policy is built: the lack of a proper process
makes an ineffective outcome more likely."
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
In the ten years since, we have frequently returned to this issue,
particularly in the context of a number of reports on specific
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."
We do not single out for criticism the present Government's approach
to constitutional changethe 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
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."
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
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.
Democratic Audit summarised the difficulty which this presents
for the establishment of a constitutional change process:
"Conventions may ... change without any
specific single action being taken, for instance the gradual development
of the principle that prime ministers can be appointed only from
the House of Commons. It is also arguable that the personal styles
of particular politiciansin particular prime ministerscan
bring about at least temporary changes to the way in which the
constitution operates, possibly with more lasting consequences."
8. Professor Feldman distinguished between this
"sort of inevitable, constant change, which is not part of
a large overarching plan"
and "trying to give effect to [the fundamental values of
the constitution] through a new, better and more appropriate mechanism."
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."
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
"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."
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
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."
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
· 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.
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.
Moreover, as Professor Flinders put it, in relation to all of
these areas "there will always be some fuzziness at the boundaries".
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."
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."
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
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
and heard oral evidence from:
· Rt Hon Nick Clegg MP, the Deputy Prime
· 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
· 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
1 Constitution Committee, 8th Report (2010-2011): Fixed-term
Parliaments Bill (HL Paper 69), para 160. Back
Constitution Committee, 4th Report (2001-02) (HL Paper 69), para
Constitution Committee, 5th Report (2010-2011): The Government's
Constitutional Reform Programme (HL Paper 43), Q 9. Back
Q 61; see also Q 93 (Professor Wright), CRP 6, para 3 (Professor
CRP 2, paras 5-7 (Professor Sir Jeffrey Jowell), CRP 7, para 11
(Democratic Audit). Back
CRP 7, para 14 (Democratic Audit). Back
Q 58. Back
CRP 3, para 2. Back
Constitution Committee, 1st Report (2001-2002): Reviewing the
Constitution: Terms of Reference and Method of Working (HL
Paper 11), para 20. Back
Ibid, para 21. Back
Q 76; see also CRP 4, para 12 (Mark Ryan). Back
Q 3. Back
Q 4. Back
Q 112. Back
Q 52. It is worth noting that many bills can incorporate issues
of constitutional significance whilst primarily being concerned
with non-constitutional or technical matters. An example of this
is the Police Reform and Social Responsibility Bill currently
before Parliament. In our report on the Bill we drew attention
to the constitutional importance of police independence, but made
no comment on many of the Bill's other provisions. Constitution
Committee, 14th Report (2010-2012): Part 1 of the Police Reform
and Social Responsibility Bill (HL Paper 143), paras 4-9. Back
Section 3(2)(f). Back
The seminar was held under the Chatham House rule. A list of the
participants and a note of the issues raised during the seminar
is contained in Appendix 4. Back