CHAPTER 5: Summary of recommendations
Introduction
115. A clear and consistent process should apply
to all significant constitutional change. We offer no watertight
definition of what is constitutional, but continue to rely on
the working definition offered in our first report of 2001. The
list provided by Professor Sir John Baker, whilst neither exhaustive
nor closed, provides, in our view, a useful guide to the principal
measures which would fall under the rubric of significant constitutional
change. (Para 15)
116. We recommend this report to the House for
debate. (Para 19)
The current practice of constitutional change
117. 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.
(Para 26)
118. We stress that the potential impact on the
existing constitutional arrangements should be considered when
significant constitutional changes are proposed. (Para 29)
119. 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. (Para 34)
120. The desire to act quickly as a new government
is no justification for bypassing a proper constitutional process.
(Para 40)
121. 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. (Para 46)
122. 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. (Para 51)
123. 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. (Para 55)
Our recommended process for constitutional change
124. 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. (Para 67)
125. 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. (Para 71)
126. 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. (Para 72)
127. 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.
(Para 73)
128. 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. (Para 74)
129. 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. (Para 80)
130. 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. (Para 85)
131. 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. (Para 90)
132. 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. (Para 95)
133. We concluded earlier in this report that
it is not possible to provide a watertight definition of significant
constitutional legislation. 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. (Para 99)
134. 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. (Para 104)
135. 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. (Para 105)
The role of the Constitution Committee
136. We recommend that the government, when introducing
a bill providing for significant constitutional change into the
House of Lords, allow a minimum of three weekends between first
and second reading. We believe there will rarely be a sound justification
for rushing a significant constitutional bill through Parliament
and that an extension of one week would not unduly impact on the
government's legislative timetable. (Para 109)
137. Our bill scrutiny reports, unlike many committee
reports which may follow a long and in-depth inquiry, will not
raise issues which the government could not be expected to have
previously considered. We therefore regard the two-month time
limit for responses to general committee reports to be longer
than that which should be available to departments for responses
to bill scrutiny reports. In the majority of cases, where we have
published a bill scrutiny report before second reading, we would
expect the government to respond to the report before the commencement
of committee stage. (Para 114)
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