House of Lords - The Process of Constitutional Change

The Process of Constitutional Change - Constitution Committee Contents

CHAPTER 3: Our recommended process for constitutional change

The balance between flexibility and rigidity

56. Professor Flinders argued that:

We agree with this analysis. The question is the degree to which we should move towards a more rigid system.

57. A number of witnesses argued that we should recommend a new process which incorporated a more formal rigidity than is contained within the current constitutional settlement.

58. Some witnesses argued that the introduction of a codified written constitution would be the most effective way of introducing more rigidity to the process. Democratic Audit argued in favour of this, though they also acknowledged that this was "a long-term goal".[76] Unlock Democracy were also supportive of a codified, written constitution, developed through "a wide-scale process of public discussion, debate and participation."[77] Yet they were cautious of "starting to codify a process of constitutional change at a time when there is little in the way of consensus on what makes up our constitution."[78] The Deputy Prime Minister informed us that he did "not anticipate any great initiative being undertaken on that front by this Government."[79]

59. A codified constitution would likely require some form of super-majority before changes could be made to it. Even without a codified constitution it is possible to provide for specific procedural requirements within specific constitutional bills, including such measures as affirmative orders, sunrise and sunset clauses, and parliamentary super-majorities. Such requirements may be adopted on a case-by-case basis if Parliament so determines.

60. A number of witnesses made recommendations for a new independent body. David Howarth wanted "an official, representative constitutional convention" to draft a formal constitution.[80] Professor Brazier argued for a standing Royal Commission on the Constitution that would receive from the government draft proposals or ideas for major constitutional changes, and subject them to scrutiny.[81] Professor Wright called for "a democracy commission, set up for, say, 10 years with the prospect of permanence, to keep our political system under continuing review."[82] Richard Gordon QC argued that Parliament should set up an independent monitoring body to monitor the constitution.[83]

61. Other witnesses argued that the way in which parliamentary committees scrutinise constitutional matters should be bolstered. Unlock Democracy proposed that a parliamentary select committee "should determine which process any constitutional reform proposal should go through."[84] The Law Society of Scotland also advocated a Joint Committee on Constitutional Bills which would report to both Houses on its findings in relation to "constitutional law measures".[85]

62. The role of the House of Lords as a "constitutional long-stop" has long been recognised. The Royal Commission on Lords Reform stated that "This is one of the classic functions of a second chamber and one the House of Lords has on occasion played in the past ... ensuring that changes are not made to the constitution without full and open debate and an awareness of the consequences."[86] Recognition of the importance of that function was a central justification for the establishment of this Committee. Professor Feldman argued that the House "has a proper role in safeguarding the constitution by ensuring, so far as possible, that constitutional changes are not introduced for partisan reasons and that arguments advanced are generally applicable and not motivated by party advantage."[87]

63. Some witnesses argued that the role of the House of Lords should be strengthened in this respect. Mark Ryan stated that the House should "be given a more formal role and responsibility in relation to scrutinising constitutional measures and this function should continue to form part of the constitutional remit of any fully reformed second chamber."[88] Professor Sir John Baker considered that "the House of Lords veto should be restored."[89]

64. Some witnesses proposed the adoption of a form of rulebook for constitutional change[90] and it was suggested that this Committee could set out the measures to be adopted.[91] Professor Sir Jeffrey Jowell argued that the appropriate processes are already in place but that they should be "regularised".[92] The Deputy Prime Minister agreed in part with this analysis:

CONCLUSION

65. A constitutional development of the magnitude of the introduction of a codified written constitution should be considered only after a comprehensive examination of its implications has taken place. The Deputy Prime Minister has made it clear that this is not a priority for the present Government, and the arguments for and against go far beyond the scope of this inquiry. Similarly, the introduction of some form of constitutional commission would, we believe, be a step in the direction of a codified constitution and therefore is not appropriate for consideration at the present time.

66. Whilst we stress the important role played by the House of Lords in safeguarding the constitution against executive abuse, in the light of the recent White Paper on Lords Reform and the establishment of a Joint Committee on the draft Bill, this report is not the appropriate place for us to consider Lords powers or the conventions underpinning the relationship between the two Houses.

67. We believe that the best way to proceed at the present time is to seek to strengthen the role that both Houses of Parliament and the existing parliamentary committees can play in relation to the process of constitutional change. This can best be done by ensuring that the government abide by what is currently accepted as best practice. We do not, however, accept that the government should continue to pick and choose which processes to apply to which proposals. We therefore recommend that a clear and consistent process be set down in a manner which retains flexibility whilst also holding the government to account for their decisions.

Our proposal for written ministerial statements

68. We consider that it is helpful for Parliament, when scrutinising legislation, to have before it a full explanation of the process to which a bill has been subjected. The way in which such an explanation is prepared should be designed to focus the minds of ministers on the detailed questions of whether a bill has been properly prepared prior to its introduction into Parliament. This is particularly important when dealing with bills providing for significant constitutional change. As Richard Gordon QC argued: "There has to be some dynamic that falls short of coercion but which is a trigger for action."[94]

69. Our 2009 report, Fast-track Legislation: Constitutional Implications and Safeguards, which expressed concern at the ad hoc way in which governments had previously made the case for the fast-tracking of legislation,[95] recommended that, for each fast-tracked government bill, the minister responsible for the bill should be required to make an oral statement to the House of Lords outlining the case for fast-tracking, accompanied by a written memorandum to be included in the explanatory notes.[96] The then Government agreed to this[97] and the current Government has continued the practice.[98]

70. Upon reflection, since explanatory notes are prepared only by the relevant department and not signed by a particular minister, we are concerned that the detailed information contained within them might not be given sufficient consideration by ministers. We note that under section 19 of the Human Rights Act 1998, the minister in charge of a bill in either House of Parliament:

"must make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (a 'statement of compatibility') or make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill."

The introduction of these statements has focused ministers' minds on the question of compatibility and has brought about a cultural change in Whitehall. Although it would not be possible to give a one-line statement which would cover all questions of process, we consider that ministers should personally attest to the government's view as to whether a bill provides for significant constitutional change and, if it does, to then set out the process leading to that bill's introduction. This can best be achieved through the use of written ministerial statements which must be signed by a minister but which would allow for more detailed discussion than a one-line statement. Where the government do not consider that a bill provides for significant constitutional change, it would be necessary under our proposals for this to be stated explicitly.

71. We recommend that when a government bill is introduced into either House of Parliament, the minister responsible for the bill in that House make a written ministerial statement. The minister responsible for the bill when introduced into the second House should also make a written ministerial statement. For ease of reference, a copy of each statement should be included in the relevant explanatory notes.

72. Both statements should set out whether, in each minister's view, the bill provides for significant constitutional change and, if so:

· what is the impact of the proposals upon the existing constitutional arrangements;

· whether and, if so, how the government engaged with the public in the initial development of the policy proposals and what was the outcome of that public engagement;

· in what way were the detailed policies contained in the bill subjected to rigorous scrutiny in the Cabinet committee system;

· whether a green paper was published, what consultation took place on the proposals, including with the devolved institutions, and the extent to which the government agree or disagree with the responses given;

· whether a white paper was published and whether pre-legislative scrutiny was undertaken and the extent to which the government agree or disagree with the outcome of that process;

· what is the justification for any referendum held, or to be held, on the proposals; and

· when and how the legislation, if passed, will be subject to post-legislative scrutiny.

73. In preparing this written statement, each minister should take account of our discussion of these processes below. We place greater emphasis on some processes than on others. However, we stress that this is intended to be a comprehensive package from which the government should depart only in exceptional circumstances and where there are clearly justifiable reasons for so doing. Where the government have not undertaken one or more specific parts of the recommended process, each minister should set out the reasons in their written statement.

74. We reserve our right to disagree with the government's assessment, both as to whether a bill provides for significant constitutional change and as to whether the bill has been subjected to the proper process. We note that during the scrutiny of a bill, Members of each House of Parliament may also disagree with the Government's assessment.

PUBLIC ENGAGEMENT

75. The following discussion focuses on public engagement at an early stage in the policy-making process. Forms of public engagement need not necessarily be initiated or managed by the government. We discuss public consultation which may take place at a later stage in the process below. We also discuss referendums in a separate section since these may be used at both an early or end stage of the process. It should be noted that many of the arguments we cite in favour of public engagement apply equally to other public processes.

76. One example of public engagement mentioned in positive terms by a number of our witnesses was the Canadian Province of British Columbia Citizen's Assembly set up in 2004 to determine which type of electoral system should be put to the people in a referendum.[99] However, there are a large number of different models which may be used, and the extent to which particular public engagement models should be adopted is disputed.

77. Professor Smith argued in favour of public engagement on the following grounds:

100

78. The Deputy Prime Minister accepted the desirability of public engagement "as long as we do not unduly delay the overall timetable that we are seeking to meet".[101] Professor Coleman, on the other hand, considered that a requirement to engage with the public "would change the way [the government] thought and stop them rushing into decisions ... [therefore] we would have more informed policy."[102]

79. Dr Kelso suggested that: "There is certainly no way you are going to have a [substantial] process ... for absolutely every constitutional issue that comes about. But for some of the very big issues I think it may well be a worthwhile model to think about in the future."[103] Professor Coleman argued that any new process should not be a one-off experiment but be allowed to develop as lessons were learned.[104] However, a number of witnesses, including the Deputy Prime Minister, argued that there was no one model appropriate to every constitutional change proposal.[105]

80. We agree that public engagement during the policy-making process is a desirable element of the constitutional change process but that there is no one model which should be adopted for all proposed changes. Nor is public engagement at this stage of the process always a necessary requirement. However, if not undertaken, the government should be able to justify their decision not to conduct a public engagement exercise. If a public engagement exercise has been conducted, whether by the government or otherwise, each minister should set out in their written statement what account the government have taken of the results of that exercise in formulating their policies.

CABINET COMMITTEES

81. This Committee has previously stressed the importance of the Cabinet government model. Our report last year on The Cabinet Office and the Centre of Government affirmed "our belief in the importance of Cabinet government, which plays an essential role in upholding the principle of collective ministerial responsibility."[106] We particularly highlighted the value of the Cabinet committee system, which, we asserted, "remains an essential part of the UK's government structure, as part of the system of collective ministerial responsibility."[107] This is particularly so with regard to proposals for constitutional change.

82. We note that in relation to the process leading to the Scotland Act 1998, the Devolution to Scotland, Wales and the English Regions Cabinet Committee held 15 meetings over 11 weeks, considering 39 papers on such issues as legislative competence, the sovereignty of the UK Parliament, dispute resolution mechanisms, the West Lothian Question, the role of the devolved administrations in relation to the European Union, the proposed tax-varying power and budgetary issues.[108]

83. It is not clear whether the Cabinet system continues to subject constitutional change proposals to the same degree of scrutiny, although we note that an ongoing academic study of the Coalition Government has found that:

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84. The Deputy Prime Minister told us that the Cabinet's Home Affairs Committee, which he chairs and which has responsibility for the present Government's programme of political and constitutional reform, holds regular meetings, although their frequency "slightly depends on the business of government ... the rhythm might be once a week, or once every couple of weeks".[110]

85. We reaffirm our belief both in the importance of Cabinet government and in the essential role that the Cabinet committee system plays as part of the system of collective ministerial responsibility. These mechanisms are particularly important in relation to proposals for significant constitutional change. The government should ensure that proposals for significant constitutional change continue to be subject to rigorous internal government scrutiny in the Cabinet and its committees.

PUBLICATION OF GREEN PAPERS AND CONSULTATION

86. In this report we use the term consultation to refer to the opportunity for all members of the public, along with the devolved institutions, experts and affected parties, to react to initial proposals made by the government and to comment on and seek to improve those proposals. Significant constitutional change proposals should be contained within a green paper which sets out the framework for the ensuing consultation process. In practice we recognise that the majority of responses made will be by experts and those with a specific interest in the subject matter.

87. The government Code of Practice on Consultation[111] sets out seven consultation criteria, including:

· Formal consultation should take place at a stage when there is scope to influence the policy outcome.

· Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible.

· Consultation documents should be clear about the consultation process, what is being proposed, the scope to influence and the expected costs and benefits of the proposals.

· Consultation exercises should be designed to be accessible to, and clearly targeted at, those people the exercise is intended to reach.

· Consultation responses should be analysed carefully and clear feedback should be provided to participants following the consultation.

88. We regard these criteria as minimum requirements in relation to proposals for significant constitutional change. The increased use and availability of online resources over the last decade can be used to make public consultations accessible to all those who wish to comment, but efforts still need to be made by governments to ensure that those affected by proposed changes are aware of the proposals. All citizens may be affected by significant constitutional change so particular care needs to be taken in promoting consultation exercises.

89. The Deputy Prime Minister told us that "my experience is that as long as the collective decision-making machinery of government is functioning effectively, transparently and deliberately, that is a good guarantee of proper scrutiny and deliberate consideration."[112] We take the view that more is required.

90. The nature of a significant constitutional change is that its impact will outlast whichever government initiated it. Whilst internal government processes are clearly important, the process of significant constitutional change is too important to be left solely to the government. Thus, in relation to any proposal for significant constitutional change, the government should initially set out their proposals in a green paper. The government should in each relevant case consult the devolved institutions. Ministers should consider the responses received and either change their proposals accordingly or explain in the written ministerial statement why they have chosen not to do so.

WHITE PAPERS AND PRE-LEGISLATIVE SCRUTINY

91. Most of our witnesses agreed that it was desirable that constitutional change proposals be included in a white paper and, in the form of a draft bill, be subjected to pre-legislative scrutiny.[113] We examined the benefits of pre-legislative scrutiny in our 2004 report, Parliament and the Legislative Process,[114] noting that the process was of value to parliamentarians by "enhancing the capacity of Parliament to influence legislation at a formative stage", to interested bodies and individuals "as they have the opportunity to contribute to the committee's deliberations", to the government since "it should lead to better legislation and, potentially save some time during the later legislative stages of the bills"[115] and to ministers who would subsequently find it easier to persuade officials of necessary changes.[116] These advantages, borne out by academic study,[117] are of particular relevance to significant constitutional legislation.

92. Our 2004 report concluded that:

not

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The then Government, in their response to that report, disagreed that the reasons for not conducting pre-legislative scrutiny should appear in the explanatory notes on the ground that:

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93. We do not accept this argument. Whilst the reasons for not publishing a bill in draft are likely to be clear in some cases, this does not prevent those reasons being briefly set out in a written ministerial statement. In other cases, the government have a duty to Parliament to set out their priorities clearly without resorting to formulaic assertions of the difficulties of scheduling parliamentary business. This is particularly so in relation to significant constitutional bills which require full parliamentary scrutiny and a consistent process notwithstanding other pressures on the parliamentary timetable.

94. We note that the recent report of the Leader's Group on Working Practices agreed with this Committee that pre-legislative scrutiny should be the norm, rather than the exception and concluded that:

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This recommendation was widely welcomed by Members of the House of Lords during their debate on the Leader's Group report.[121]

95. Whilst this report is limited to the consideration of constitutional change, we agree with the Leader's Group and continue to believe that significant constitutional legislation should be subject to pre-legislative scrutiny. This requirement should be departed from only in exceptional circumstances; if the government do not publish a bill in draft, each minister should formally explain and justify that approach to Parliament in their written statement.

THE LEGISLATIVE PROCESS

96. This Committee has previously examined the legislative process in some detail,[122] as well as specifically considering the case for fast-tracking legislation[123] (which may, in certain circumstances such as previously enacted bills relating to Northern Ireland, be justifiable in relation to constitutional legislation). We also note that changes have been made to certain House of Commons procedures in recent years, notably the introduction of programme motions,[124] and that further recommendations for change were made by the Wright Committee during the last Parliament.[125] Procedures and working practices in the House of Lords have recently been given careful consideration by the Leader's Group on Working Practices which made a number of wide-ranging recommendations relating to the legislative process which have been widely welcomed in the House.[126] These procedures and practices apply to all legislation, without distinction. We do not, therefore, consider this report to be the appropriate place to re-examine the overall legislative process. However, whatever the House decides relating to the Leader's Group proposals, we believe that additional care should be taken with bills providing for significant constitutional change.

97. There is one particular aspect of the legislative process which we believe is particularly unsuited to significant constitutional legislation. The Constitutional Reform and Governance Bill 2010 was subject to the wash-up[127] at the end of the last Parliament, reaching the House of Lords only a month before the expected date of dissolution. This Committee was highly critical of the lack of time for parliamentary scrutiny, particularly in the House of Lords, that was thus afforded to the Bill.[128] We also criticised the fact that significant new provisions were added late in the legislative process[129] and that constitutionally significant amendments had not been considered in the Commons.[130] We considered it to be:

131

This example demonstrates that care should be taken to ensure that a good level of parliamentary scrutiny is afforded to such legislation.

98. Whilst significant constitutional legislation may not require the use of special parliamentary procedures, we note that the committee stages of bills of "first-class constitutional importance" are by convention taken on the floor of the House of Commons whereas other bills are, on the whole, sent to a public bill committee.[132] There is thus a precedent for applying the existing parliamentary procedures differently to constitutional bills. Such bills should be afforded the best parliamentary scrutiny available (including pre- and post-legislative scrutiny). This can be done without devising any new procedures.

99. We concluded earlier in this report that it is not possible to provide a watertight definition of significant constitutional legislation.[133] We stress the importance of proper parliamentary scrutiny of all bills, but we do not recommend that any new parliamentary procedures such as super-majorities should apply to significant constitutional bills. However, parliamentary scrutiny of such bills should not be rushed unless there are justifiable reasons for fast-tracking them, and, in particular, the government should not seek to pass significant constitutional legislation during the wash-up.

REFERENDUMS

100. Legislation may require a referendum prior to the implementation of a constitutional change. It is possible for a referendum to be either pre- or post-legislative; a further distinction should also be drawn between mandatory and advisory referendums. Our witnesses distinguished between referendums as being part of the process of approving a constitutional change and other public engagement exercises which enable the public to determine the package on offer.[134]

101. This Committee recently examined the use of referendums in the United Kingdom and concluded that whilst there were "significant drawbacks" to their use "they are most appropriately used in relation to fundamental constitutional issues".[135] We reaffirm our earlier assessment.

POST-LEGISLATIVE SCRUTINY

102. In our 2004 report, Parliament and the Legislative Process, this Committee also examined the benefits of post-legislative scrutiny: that it would bring to the attention of Parliament legislation which had failed to fulfil its intended purpose along with any unintended consequences; that it might make it possible to identify alternative means of achieving the original goals of the legislation; that it might impose a greater discipline on government; and that it would enable lessons to be learnt about the process leading up to the passing of the relevant Act.[136] In relation to significant constitutional legislation, we believe that post-legislative scrutiny would have the particular benefit of leading to an assessment of whether that legislation had had an adverse impact on other areas of the constitution.

103. That report argued that the case for the greater use of post-legislative scrutiny was "compelling" and that the problem with carrying it out was one primarily of limited resources.[137] We do not intend to rehearse the resources arguments here, but we note that the previous Government, in setting out their approach to post-legislative scrutiny in 2008, stated that the basis for a new process for post-legislative scrutiny should be for the Commons departmental committees themselves, on the basis of a Memorandum on appropriate Acts submitted by the relevant government department, to decide whether to conduct further post-legislative scrutiny of the Act in question.[138] We also note that the Leader's Group on Working Practices has recently recommended that the House of Lords appoint a Post-legislative Scrutiny Committee to manage the process of reviewing up to four selected Acts of Parliament each year.[139] Neither mechanism in and of itself guarantees that significant constitutional legislation will be subject to comprehensive post-legislative scrutiny.

104. We consider that comprehensive post-legislative scrutiny should be a requirement for all significant constitutional legislation. Each minister should set out the government's plans for such scrutiny in their written statement.

Conclusion

105. We believe that abiding by the processes outlined above will do much to remedy many of the weaknesses that exist in the current practice of constitutional change in the United Kingdom. The need to set out within a written ministerial statement the processes to which a bill has been subjected and the outcomes of those processes should, we believe, focus the minds of ministers and help to bring about a cultural change in Whitehall regarding constitutional legislation. The requirement to justify and explain any decision not to subject a bill to a particular process will help to underline the importance of each of the above processes.

75 CRP 1, paras 1 and 14. Back

76 CRP 7, para 1. Back

77 CRP 13, para 2. Back

78 Ibid., para 3. Back

79 Q 196. Back

80 CRP 3, para 19. Back

81 CRP 6, paras 18-19. Back

82 Q 79. Back

83 Q 7. Back

84 CRP 13, para 13. Back

85 CRP 17. Back

86 A House for the Future: Royal Commission on the Reform of the House of Lords CM 4534 (2000) (the Wakeham Commission), para 5.4. Back