The Process of Constitutional Change - Constitution Committee Contents

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


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.


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.


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.


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.


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]


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.


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  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  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: 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:  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)  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   IbidBack

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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