CHAPTER 2: The current practice of
constitutional change
The strengths of current practice
20. The way in which the UK's constitutional
arrangements may be changed is more flexible than in virtually
any other western democracy. Our witnesses argued that the UK
constitution is able to respond promptly when a need for change
arises, thus avoiding the constitutional stasis sometimes seen
elsewhere.[19] The Deputy
Prime Minister emphasised that "We have a suppleness, a fluidity
and a pragmatism to our arrangements, which many constitutional
experts around the world recognise is a strength."[20]
21. The participants in our seminar also stressed
that the fluid definition of what is constitutional can itself
be a strength. For example, the equalisation of constituency boundaries
and the referendum on the voting system introduced by the Parliamentary
Voting System and Constituencies Act 2011 were clearly regarded
as significant constitutional measures; in countries with a codified
constitution, important details such as these may not be included
within the constitutional settlement.[21]
22. We recognise these strengths. However, current
practice places too great an emphasis on the need for flexibility.
Some constraints should be placed on this flexibility in order
to overcome the weaknesses which we outline in the next section.
Criticisms of current practice
LACK OF CONSTRAINTS ON THE GOVERNMENT
23. Aside from the limited power of the House
of Lords under the Parliament Acts to delay or reject legislation,
there is no formal system of checks and balances by which the
integrity of the UK constitution can be safeguarded and protected.
Thus there is little to constrain the ability of a government
which commands a majority in the House of Commons to get its way.
This lack of constraint in turn means that the process by which
constitutional change is considered lies essentially within the
gift of the government of the day.[22]
24. There is no formal, established convention
as to the process by which proposals for significant constitutional
change should be considered. Democratic Audit warned that this
creates:
"an obvious danger that there will not be
sufficiently broad ownership of the constitutional settlement,
and that an individual party or coalition of parties will be able
to skew the process of constitutional change to serve their own
interests."[23]
25. We believe that both government and Parliament
should recognise the need for constraints on the process of constitutional
change so that a situation whereby the government is effectively
able to change the constitution at will may be avoided. In order
to retain the strength of current practice—the flexibility
inherent within the UK constitution—it is necessary to avoid
the imposition of a new system which prevents governments from
initiating constitutional change. However, as Professor Feldman
stressed, all those involved in the constitutional process:
"should respect the principle of constitutionality,
which may be formulated as follows: everyone acting in a public
capacity should respect the fundamental rules, values and traditions
of the Constitution for the time being, unless there are principled,
constitutional advantages to changing them which outweigh the
merits of constitutionality."[24]
26. We agree that government operates within
a constitutional framework which should be respected and treated
with care by all those who seek to change it. Governments should
continue to have the right to initiate constitutional change,
but this needs to be tempered by a realisation that constitutional
legislation is qualitatively different from other legislation.
FAILURE TO HAVE REGARD TO WIDER
CONSTITUTIONAL ARRANGEMENTS
27. We are concerned that in recent years little
attention has been paid to the need for an overarching view of
the workings of the UK constitution and the impact of any one
proposal upon the rest of the constitution. Some witnesses regretted
the lack of a holistic approach to constitutional change.[25]
David Howarth told us that
"we have no structural thinking going on
about the interaction between the composition of the Houses [of
Parliament], the electoral systems, the courts and so on. We have
no thinking about how all this fits together into a system of
government".[26]
This Committee has recently criticised the way in
which the present Government proposed to reduce the number of
MPs seemingly without any considered prior assessment of their
role and function.[27]
28. Professor Feldman drew attention to the Constitutional
Reform and Governance Bill, introduced towards the end of the
last Parliament, which had incorporated a diverse range of constitutional
measures. He called it "another example of messy reform.
As originally introduced to Parliament, the Bill contained a rag-bag
of reform measures without any coherent, unifying principle."[28]
This Committee concluded: "This is no way to undertake the
task of constitutional reform."[29]
29. Continuous constitutional change will inevitably
lead to difficulties if little thought is given to the constitution
as a whole and how its various parts interact with one another.[30]
A number of our witnesses examined the case for a fundamental
review of the United Kingdom's constitutional arrangements.[31]
Whilst we do not argue in favour of such a review in this report,
we stress that the potential impact on the existing
constitutional arrangements should be considered when significant
constitutional changes are proposed.
LACK OF COHERENCE WITHIN GOVERNMENT
30. Some witnesses questioned whether the policy
making process within government was sufficiently coherent. This
issue was addressed by this Committee in our first report on the
constitutional change process ten years ago, where we expressed
our concern "at the lack of a culture of dealing with constitutional
issues [within government]."[32]
The evidence we have received points to this lack of coherence
remaining a serious problem. David Howarth argued that "the
system of government we have in this country is extraordinary
in terms of its incoherence."[33]
He set out the problem as he saw it:
"The relevant parts of government shift
around. It is my impression that there is expertise but it is
in different places. ... the relevant parts are the part that
deals with Parliament ... There is the part in the Treasury that
deals with parliamentary processes to do with money ... Then there
is the expertise in what is now the Ministry of Justice about
the judiciary. Then there is the Cabinet Secretary's own expertise
... Finally, there are all the people in this democratic unit
and that democratic unit that do the day-to-day work for whichever
minister is responsible, now the Deputy Prime Minister. That is
diffuse across government."[34]
31. Professor Flinders stated that the current
Government "lacks a central oversight capacity".[35]
Although a recent report by the Constitution Unit, University
College London, stated that "the new Cabinet system is a
great deal more collegiate,"[36]
the same report also concluded that the Deputy Prime Minister's
Office "remains under-resourced and overstretched."[37]
The Deputy Prime Minister confirmed that he was the senior minister
in charge of the Government's entire constitutional change programme
and that a senior official also took responsibility for that programme.[38]
In addition, he argued that there are internal mechanisms to ensure
collective consideration of constitutional change proposals:
"My experience in the last year is that
there are very strong, robust, collective methods by which decisions
are arrived at within government ... My experience is that the
collective filters internally within government are working well
..."[39]
32. We have not undertaken a full review of the
cohesiveness of the current Government's internal procedures in
relation to constitutional change. However, we note that the draft
Cabinet Manual published in December 2010 stated that "issues
of a constitutional nature, including matters relating to the
monarchy, reform of Parliament and changes to the devolution settlements"
are "the kind of issues that would normally be considered
by Cabinet."[40]
In our report on the draft Manual we recommended that it should
set out the conclusions of relevant parliamentary reports which
specify the standards to be expected of government when taking
bills through Parliament.[41]
The Government, in their interim response to that report, agreed
with this recommendation.[42]
33. We also note that the recent Report of the
Leader's Group on Working Practices recommended the establishment
of a Legislative Standards Committee, either as a joint committee
or as a committee of the House of Lords, which would assess the
technical and procedural compliance of government bills with standards
of best practice in bill preparation.[43]
The recommendation was welcomed by a number of Members of the
House during the debate on the report, though the Leader of the
House, Lord Strathclyde, expressed some reservations.[44]
Whilst this recommendation relates to all government bills, and
therefore goes wider than the scope of this report, we welcome
any proposal which would have a beneficial impact on the quality
of constitutional legislation by improving the preparation of
bills across government.
34. Internal government processes precede
and directly impact upon subsequent legislative processes. As
a basic minimum, the Cabinet Manual should set out for ministers
and civil servants the requirements relating to both those internal
processes and the process for significant constitutional change
which we recommend in this report.
LACK OF CONSISTENCY IN THE USE OF
PARTICULAR PROCESSES
35. There has been an inconsistent approach to
the process of constitutional change. Whilst particular processes
may be employed in relation to some proposals, they have been
entirely absent in relation to others.[45]
Democratic Audit argued that:
"The constitutional reform process in recent
decades has been both piecemeal and profound, driven by the executive
but also subject, to varying and inconsistent degrees, to greater
parliamentary scrutiny, the influence of judicial decision through
the courts and popular consent via referendums."[46]
36. Furthermore there appears to be no consistent
rationale as to the use or otherwise of such mechanisms. It is
of particular concern when this inconsistency appears to derive
more from political considerations than any sense of constitutional
principle.[47] The examples
of good and bad practice to which we refer in this report demonstrate
well this lack of consistency.[48]
We therefore recommend in this report that a process be established
which should apply consistently to all bills providing for significant
constitutional change.
CHANGES MAY BE RUSHED
37. There is a risk that changes to the constitution
may be rushed through without any pause for thought as to their
desirability or otherwise. The Parliamentary Standards Bill, which
provided for the establishment of the Independent Parliamentary
Standards Authority following the expenses crisis of 2008-09,[49]
was one example of the way in which constitutional change is often
proposed as a knee-jerk reaction to particular circumstances.
This Committee concluded that "if Parliament cannot be
seen to be scrutinising proposals with the thoroughness they deserve,
public confidence in parliamentarians is likely to be further
undermined."[50]
It is notable that the Act was substantially amended just eight
months later by the Constitutional Reform and Governance Act 2010.[51]
Professor Feldman, with reference to the proposed abolition of
the office of Lord Chancellor in 2003, stated that:
"The idea of a constitution where it is
possible to have ... really significant reform ... without any
sort of public discussion ... is, I think, shocking. It would
simply not be regarded, in most countries of the world, as something
that ought to be allowed."[52]
38. When determining whether a significant constitutional
change has been rushed, the entire process leading up to the change
needs to be taken into account. One example of good constitutional
practice frequently cited by our witnesses was the process by
which Scottish devolution came about in the late 1990s.[53]
The process combined a number of elements—including decades
of public and political debate, the Scottish Constitutional Convention,[54]
the Cook-Maclennan agreement,[55]
a degree of political consensus, careful consideration of the
detail in Cabinet committee[56]
and a referendum of the Scottish people—which meant that
Scottish devolution managed to be brought in relatively quickly
by the Labour Government without the process feeling rushed. Similarly,
the Human Rights Act 1998 and the Freedom of Information Act 2000
followed long campaigns in their favour.[57]
These campaigns assisted in the relatively quick timeframe for
the passing of those Acts.
39. We are concerned that the present Government
have repeatedly cited the difficulties of undertaking pre-legislative
scrutiny or consultation in the first parliamentary session because
of their desire to make quick progress with their legislative
programme. For example, we recently criticised the way in which
both the Parliamentary Voting System and Constituencies Bill and
the Fixed-term Parliaments Bill were introduced into Parliament
without any prior consultation, pre-legislative scrutiny or sustained
public demand.[58] The
Deputy Prime Minister accepted that both Bills were subject to
"less pre-legislative scrutiny than is ideal"[59]
whilst the Minister for Political and Constitutional Reform, Mark
Harper MP, in evidence given to the House of Commons Political
and Constitutional Reform Committee, recently acknowledged that
"... clearly, that piece of legislation [the PVSC Bill] was
a little bit traumatic for the parliamentary process, because
we had a timetable and it obviously did take place quite quickly."[60]
40. The desire to act quickly as a new government
is no justification for bypassing a proper constitutional process.
As Professor Sir Jeffrey Jowell told us, "the time has come
to simply take a little more care with constitutional reform."[61]
LACK OF CONSULTATION
41. A number of witnesses expressed concern at
the lack of consultation in relation to proposals for constitutional
change. As the Hansard Society have argued, public consultation
should:
"take place as early in the policy-making
process as possible. With policy still in flux it gives outsiders
a greater chance of making their voice heard and influencing the
final decision. Once a proposal is on the table the politics and
the dynamics of the consultation process inevitably change; ministers
and civil servants become more proprietorial towards it."[62]
42. The wider public should be given the opportunity
to respond to consultations: constitutional change proposals "potentially
affect all citizens, and there should be some process through
which they can be consulted, preferably before constitutional
legislation is introduced."[63]
Significant constitutional change should be a matter of public
debate. We are concerned, to give one example, that there was
no such debate on the important question of whether proposed fixed-term
Parliaments should last for four or five years.[64]
Although subjected to full parliamentary scrutiny, the length
of time between general elections clearly impacts greatly on all
voters who should have been entitled to express their views.
43. It is particularly important to consult those
individuals and bodies who will be directly affected by a proposed
constitutional change. This Committee has previously criticised
the failure to consult the judiciary when the proposal to abolish
the role of Lord Chancellor was announced and when the Ministry
of Justice was established.[65]
Likewise, in relation to the Parliamentary Voting System and Constituencies
Bill and the Fixed-term Parliaments Bill, we criticised the failure
to consult the devolved institutions over potential clashes with
their election dates.[66]
44. A number of our witnesses were also concerned
at the lack of consultation with expert opinion. Professor Brazier
warned that "leaving constitutional reform entirely to the
judgement of politicians can allow constitutional bills to be
enacted without independent and expert scrutiny."[67]
45. Some of our witnesses expressed the view
that consultation in recent years has become a tick-box exercise
which has no effective impact on proposals. Professor Smith told
us:
"One of the worst things that I see is when
you have a consultation exercise—there are so many examples
of this—and cannot show any relationship between the consultation
exercise and the final decision, even if it is only a mention
of the consultation exercise. I think that people are doing it
just because you are expected to do it, and that is generally
a problem."[68]
46. Consultation is important, both as a means
to improve proposals for change but also to ensure that all those
affected by a proposed change are given the opportunity to respond
and influence the outcome. It is not a part of the process which
should be overlooked or treated as a box-ticking exercise. There
should be a significant period of public debate which informs
the process by which the United Kingdom moves from one constitutional
arrangement to another.
LACK OF CONSENSUS
47. Some of our witnesses examined whether the
apparent lack of consensus for most constitutional change is itself
a weakness, noting that it can increase the acceptability of proposals
for change and make them appear less partisan.[69]
The same witnesses, however, argued that consensus should not
be a necessary component of the constitutional process since it
could be used to block reform.[70]
48. The Deputy Prime Minister accepted that:
"It is clearly ideal ... if you can proceed
on a basis of consensus. History suggests that consensus is often
rather elusive, and at the end of the day change ... ends up usually
being a question of the executive of the day deciding that it
wants to proceed and then proceeding. That does not mean that
we should not make every single effort in order to seek greater
consensus where we can."[71]
49. The existence of consensus is a subjective
political judgement. Moreover, consensus may be reached between
two or more political parties, whilst not being universal. We
do not consider that constitutional change will or should always
proceed by consensus, however desirable. However, if sufficient
time and widespread scrutiny is given to constitutional change
proposals, a greater degree of consensus—or, at least, a
general understanding of what the key issues are—is likely
to be achieved. Furthermore, the search for consensus will bring
about a greater understanding between the parties and acceptance
of any resulting change. It is therefore an important part of
the process in itself.
Characterisation of the current
practice of constitutional change
50. Legislating for significant constitutional
change can be achieved relatively quickly, in a manner which is
broadly acceptable to all concerned, even if some do not agree
with the specific proposal. The problem lies in the fact that
examples of good practice have been the exception rather than
the norm.
51. There are a number of weaknesses inherent
in the current practice of legislating for constitutional change:
lack of constraints on the government, failure to have regard
to the wider constitutional settlement, lack of coherence within
government, lack of consistency in the application of different
processes, changes being rushed and lack of consultation. These
weaknesses arise out of the fact that the United Kingdom has no
agreed process for significant constitutional change. The
crux of this report is how the good standards occasionally observed
in relation to the process of constitutional change can be applied
more consistently.
The desirability of establishing
an agreed process
52. Our witnesses were broadly agreed that significant
constitutional legislation is qualitatively different from legislation
relating to other areas of law. In Professor Brazier's words it
"should be recognised as being special (or at least different
in nature from)—and I say politically superior to—all
other forms of law and public policy."[72]
This is because, as Professor Sir Jeffrey Jowell stated:
"the constitution provides the rules of
the game, the framework for all official decisions. If these decisions
are to be accepted as legitimate, even though you may not agree
with them, then the framework of decision-making must command
respect and general acquiescence."[73]
53. We agree that the distinct nature of constitutional
change proposals means that there is a particular need for an
agreed process to be applied.
54. Last October, the Deputy Prime Minister in
evidence to this Committee argued that there had been:
"a loss of public faith in the way in which
our political institutions reflect and express their views and
articulate them in a representative democracy. What we are seeking
to do, very simply, is to start trying to close that gap. That
is why there is an emphasis in everything that we are proposing
on greater accountability in the manner in which we conduct ourselves
and the way in which politics is conducted, greater legitimacy
in the political institutions that seek to represent people, and
breaking up excessive concentrations of power and secrecy."[74]
55. We believe that a clear and consistent
process for constitutional change is essential to achieving a
realisation of the Government's aims as set out above. We
go on in the next chapter to set out our recommendations for such
a process.
19 CRP 4, para 2 (Mark Ryan), CRP 6, para 9 (Professor
Brazier), CRP 9 (Law Society of Scotland). Back
20
Q 196. Back
21
See Appendix 4. Back
22
CRP 1, para 9 (Professor Flinders), CRP 6, para 19 (Professor
Brazier), CRP 13, para 10 (Unlock Democracy); see also Q 29 (Professor
Sir John Baker). Back
23
CRP 7, para 4. Back
24
CRP 10, para 27. Back
25
Q 123 (Professor Flinders), CRP 7, paras 2, 12 (Democratic Audit). Back
26
Q 96. Back
27
Constitution Committee, 7th Report (2010-2011): Parliamentary
Voting System and Constituencies Bill (HL Paper 58), paras
29, 36, 57. Back
28
CRP 10, para 59. Back
29
Constitution Committee, 11th Report (2009-2010): Constitutional
Reform and Governance Bill (HL Paper 98), para 47. Back
30
CRP 14 (Professor Sir John Baker), CRP 17 (Law Society of England
and Wales). Back
31
QQ 1-2, CRP 15 (Richard Gordon QC), Q 2 (Professor Sir John Baker),
Q 79 (Professor Wright), Q 80, CRP 3, paras 19-21 (David Howarth),
CRP 7, para 1 (Democratic Audit), CRP 13, paras 2-3 (Unlock Democracy). Back
32
Constitution Committee, Changing the Constitution: The Process
of Constitutional Change, op. cit., para 47.
See also Constitution Committee, 4th Report (2009-2010): The
Cabinet Office and the Centre of Government (HL Paper 30),
para 214. Back
33
Q 106. Back
34
Q 104. Back
35
Q 119. Back
36
Constitution Unit, Inside Story: How Coalition Government Works,
3 June 2011. Back
37
Ibid. Back
38
QQ199-200. Back
39
Q 179. Back
40
Draft Cabinet Manual, Cabinet Office, December 2010, para 150
http://www.cabinetoffice.gov.uk/sites/default/files/resources/cabinet-draft-manual.pdf.
Back
41
Constitution Committee, 12th Report (2010-2011): The Cabinet
Manual (HL Paper 107), paras 75-77. Back
42
Letter from the Secretary of the Cabinet, Sir Gus O'Donnell, to
the Chairman, 27 May 2011 http://www.parliament.uk/documents/lords-committees/constitution/CabinetManual/Gvtres270511.pdf.
Back
43
Leader's Group on Working Practices, Report (2010-2012) (HL Paper
136), paras 97-98. Back
44
HL Deb 27 June 2010 cols 1551-1628, see in particular cols 1624-1625. Back
45
CRP 8 (Dr Kelso), CRP 7, para 12 (Democratic Audit), CRP 13, para
9 (Unlock Democracy). Back
46
CRP 7, summary. Back
47
See Constitution Committee, Fixed-term Parliaments Bill,
op. cit., para 20. Back
48
The examples which we cite in this report are examples of constitutional
change which either took place, or where legislation was introduced,
from 1997 until the present day. We recognise that examples of
both good and bad practice existed before this time. This report
is not a comprehensive guide to the process of every constitutional
change which has occurred during this period, nor do we examine
proposed bills which have not yet been introduced into Parliament.
Appendix 5 provides a list of this Committee's earlier reports
which have been critical of aspects of the process relating to
bills on which we have reported since our establishment. Back
49
The background to the introduction of the Bill can be found in
Constitution Committee, 17th Report (2008-09): Parliamentary
Standards Bill (HL Paper 130). Back
50
Ibid, para 23. Back
51
See Constitution Committee, Constitutional Reform and Governance
Bill, op. cit., para 32. Back
52
Q 63. Back
53
Q 84 (Professor Wright, David Howarth), CRP 7, para 18 (Democratic
Audit), CRP 5, para 3b (Professor Bochel et al), CRP 9
(Law Society of Scotland). Back
54
The Scottish Constitutional Convention was established in 1989,
with members including the Labour Party, Scottish Liberal Democrats,
Scottish Democratic Left, Orkney and Shetland Movement, Scottish
Green Party, Scottish Trades Union Congress, Regional, District
and Island Councils, the Campaign for a Scottish Parliament, the
main Scottish Churches, the Federation of Small Businesses, ethnic
minority representatives, the Scottish Women's Forum, individual
trades unions and special interest organisations. The Convention
operated by consensus and reported on 30 November 1990: http://www.almac.co.uk/business_park/scc/scc-rep.htm Back
55
The Labour and Liberal Democrat parties agreed in October 1996
to establish a Joint Consultative Committee with the following
terms of reference: "To examine the current proposals of
the Labour and Liberal Democrat Parties for constitutional reform:
to consider whether there might be sufficient common ground to
enable the parties to reach agreement on a legislative programme
for constitutional reform; to consider means by which such a programme
might best be implemented and to make recommendations." The
report was published in 1997: http://www.unlockdemocracy.org.uk/wp-content/uploads/2007/01/4-joint-consultative-committee-report.pdf.
Back
56
We discuss the use of Cabinet committees in more detail below,
paras 81-85. Back
57
See Michael Zander, A Bill of Rights? (4th ed, 1997), ch
1; David Feldman, Extending the Role of the Courts: The Human
Rights Act 1998 in Philip Norton (ed.), A Century of Constitutional
Reform (2011); Des Wilson (ed.), The Secrets File (1984);
Lord Scarman, The Right to Know (The Granada Guildhall
Lectures, 1984). Back
58
Constitution Committee, Parliamentary Voting System and Constituencies
Bill, op. cit. paras 11-12; Constitution Committee, Fixed-term
Parliaments Bill, op. cit., para 179. Back
59
Q 188. Back
60
Q 80, 12 May 2011 (to be published as HC Paper 358-ii) http://www.publications.parliament.uk/pa/cm201012/cmselect/cmpolcon/c358-ii/c35801.htm.
Back
61
Q 74. Back
62
Ruth Fox and Matt Korris Making Better Law: Reform of the Legislative
Process from Policy to Act (2010), p 57 (Chapter Two of this
book contains a useful discussion of the requirements for the
consultation process). Back
63
CRP 6, para 17 (Professor Brazier). Back
64
Constitution Committee, Fixed-term Parliaments Bill, op.
cit., paras 57, 174. Back
65
Constitution Committee, 6th Report (2006-2007): Relations between
the executive, the judiciary and Parliament (HL Paper 15),
paras 12, 67. Back
66
Constitution Committee, Parliamentary Voting Systems and Constituencies
Bill, op. cit., para 23; Constitution Committee, Fixed-term
Parliaments Bill, op. cit., para 81. Back
67
CRP 6, para 18 (Professor Brazier). Back
68
Q 172; see also Q 145 (Professor Coleman), CRP 4, para 5 (Mark
Ryan), CRP 5, para 6c (Professor Bochel et al). Back
69
CRP 5, para 7a (Professor Bochel et al), CRP 7, para 35
(Democratic Audit), CRP 10, para 68 (Professor Feldman), CRP 13,
para 11 (Unlock Democracy). Back
70
Ibid. Back
71
Q 177. Back
72
CRP 6, para 4; see also Q 85 (David Howarth), CRP 7, paras 3-5
(Democratic Audit), CRP 14 (Professor Sir John Baker). Back
73
CRP 2, para 2. Back
74
Constitution Committee, The Government's Constitutional Reform
Programme op. cit., Q 53. Back
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