APPENDIX 4: NOTE OF SEMINAR HELD ON
16 MARCH 2011
The following is a note of the issues raised by a
seminar on the process of constitutional change which took place
on Wednesday 16 March. The seminar was held under the Chatham
House Rule.
Members present:
Lord Crickhowell
Lord Hart of Chilton
Lord Irvine of Lairg
Baroness Jay of Paddington (Chairman)
Lord Norton of Louth
Lord Pannick
Lord Rennard
Lord Renton of Mount Harry
Lord Rodgers of Quarry Bank
Lord Shaw of Northstead
Participants:
Professor Anthony Bradley, Emeritus Professor of
Constitutional Law, University of Edinburgh
Professor Sir David Butler, Emeritus Professor, Nuffield
College, University of Oxford
Dr Ruth Fox, Director, Parliament and Government
Programme, Hansard Society
Professor Robert Hazell, Director, Constitution Unit,
UCL
Dr Meg Russell, Reader in British and Comparative
Politics and Deputy Director, Constitution Unit, UCL
Was it possible to define a constitutional reform
proposal or constitutional legislation?
It was difficult to provide a definition of constitutional
legislation: some bills were clearly constitutional (such as the
European Communities Act 1972 and the Human Rights Act 1998),
but there were also bills which contained clauses with an indirect
effect on the constitution (such as the Civil Contingencies Act
2004 and the Public Bodies Bill 2010-2012). The fundamental problem
was that the UK had no written constitution against which such
bills could be measured, therefore it was necessary to look for
other means of identification; but a cast-iron definition for
the future was impossible to achieve.
Was it helpful to compare constitutional reform in
other countries?
Most other countries had a written constitution which
imposed rigid requirements for constitutional reform (to a greater
or lesser degree). The principles which applied in those countries
for constitutional reform did not therefore apply in the UK. However,
written constitutions included only some of the issues which would
be regarded as constitutional in the UK. For example, the Parliamentary
Voting System and Constituencies Act reduced the number of MPs
from 650 to 600—this was the sort of provision which would
be included in most written constitutions—but also required
a referendum to be held on the voting system—many written
constitutions did not specify the voting system.
It was necessary to bear in mind that constitutional
rules in the UK included conventions as well as legislation—this
further distinguished the UK system.
Trying to define a constitutional measure in the
UK was more difficult than elsewhere, but the UK system could
be described as superior in allowing for a wider definition, greater
flexibility and greater opportunity to add different elements
to the constitutional settlement. The supposedly simple solution
of codification was not an answer to the problem of definition.
Should government have some machinery for identifying
constitutional matters?
Political parties had a tendency to bring forward
proposals which had not been fully considered. In particular,
new governments had a tendency to wish to be seen to be acting
quickly and this created its own momentum.
One important aspect of process was the way in which
a bill was handled in the Cabinet's Legislation Committee. It
was necessary that that Committee understood the role of the House
of Lords and developed a sound Lords handling strategy. However,
it was stressed by some participants that, in the end, Number
10 would determine which bills were introduced so the machinery
for consideration of bills within Number 10 was key.
Should Parliament have some machinery for identifying
constitutional matters?
Suggestions for parliamentary control made by participants
included the use of a Speaker's certificate and a Legislative
Standards Committee to examine bills prior to, or just following,
their introduction.
The idea of using a Speaker's certificate was not
widely welcomed by the participants since it would involve difficult
and highly political decisions—there would be no straightforward
definition to apply as there was with the certification of money
bills.
A Legislative Standards Committee would ideally be
set up on a bicameral basis to examine the legislative preparation
of all bills. It would not focus only on constitutional issues,
but the Committee could identify objective criteria by which constitutional
bills would be identified. Bills which did not meet certain standards
could have their second readings delayed to allow for improvements
in either the content of the bill or the process relating to it
(e.g. the need for more consultation). The threat of delay could
also strengthen the hand of the Cabinet's Legislation Committee
since that Committee would have a sound argument for ensuring
that legislation was properly prepared.
Parliamentary scrutiny was not intended to prevent
all bills progressing. For example, if a Legislative Standards
Committee was unhappy with the preparation of a bill and was minded
to recommend its deferral, the Committee alone would not make
the decision: its recommendation and explanation would be put
to the relevant House for a decision. That would leave it to members
to decide what to do; the bill might go through but at least members
would have made the decision rather than the executive imposing
the bill on Parliament to be scrutinised in a form and at a time
of its choosing.
However, it was necessary to take into consideration
the fact that the opposition parties might have an interest in
defining a bill as constitutional if this would delay it or use
up government time (e.g. by requiring the bill to be taken on
the floor of the House of Commons).
What was the most appropriate relationship between
Parliament and the executive in relation to constitutional reform?
The question of the extent to which Parliament should
simply accept legislative proposals from the government was an
important one. It was not satisfactory for the government to decide
changes to the constitution on their own.
The reality was that the government had the power
to do a great deal because they had a majority in the Commons.
This tended to be a particular problem at the beginning of an
incoming government's term which was when process issues were
more likely to be overlooked. Parliament might scrutinise bills,
but the government could ignore Parliament if they chose to do
so. Whatever the constraints on government, ultimately the government
would get their own way. Furthermore, governments were likely
to be most insistent when the political stakes were highest which
might well be the case when constitutional propriety was being
tested.
It was, however, also argued that the constitution
belonged to the people and not to any political party—this
highlighted the need for consensus.
There was a problem with the level of ignorance within
governments (particularly new governments) and the senior Civil
Service of the way in which Parliament worked. For example the
draft Cabinet Manual had not mentioned the work of a number of
parliamentary committees, nor had it referred to the implications
for parliamentary scrutiny of the use of Henry VIII clauses.
A few participants noted that MPs and Peers continued
to vote with the Government following the formation of the coalition
in 2010 in order to ensure the Government's survival. Furthermore,
the point was made that MPs and Peers who were actually opposed
to legislation (or some key aspects of it) nonetheless voted for
it—thus exhibiting the power of the whips / party ties /
tribalism etc., even when there were serious concerns about the
legislation in question. This need to support the government created
a difficulty for the process of parliamentary scrutiny. Was this
a greater problem when governments were proposing to reform the
constitution? Objective criteria to determine what constituted
a constitutional matter could make it easier for Members to vote
against the government if the government were trying to reform
the constitution without having followed a proper process.
What should be the role of the House of Lords?
The participants stressed the importance of the role
of the House. Business managers in the House of Commons decided
whether a bill was of first class constitutional importance and
their decisions were influenced by the desire to not have too
many bills taken on the floor of the House. The House of Lords
had a separate role to the House of Commons as a result of its
composition, its expertise and the lack of a government majority.
The House of Lords was of fundamental importance as a constitutional
longstop.
How far could the Lords actually go? It was argued
that the Lords might ask for change, but that it was not for the
Lords to throw a bill out. Whilst the House of Lords remained
unelected, the Commons had to get its way in the end. Participants
noted the reluctance of some Peers to vote directly against the
Parliamentary Voting System and Constituencies Bill (along with
other recent constitutional bills), even though voting against
bills was potentially the most effective sanction against constitutional
impropriety.
What should be the role of the Constitution Committee?
The participants stressed the importance of the role
of the Committee. The Committee was an important player in deciding
whether a bill was constitutional and was therefore able to signal
whether it should be subjected to a particular process. However,
the Committee could not operate on a bicameral basis and was not
therefore a substitute for a bicameral Legislative Standards Committee.
What was the most appropriate role for the judiciary
in the process (if any)?
Some participants were sceptical about the judiciary
having a role in the process of constitutional reform. Set rules
which would require constitutional legislation to be treated differently
would increase their role and the risk of judicial review of the
reform process needed to be borne in mind.
How best might, or should, the public be involved
in the process?
Was there a problem of a democratic deficit with
regard to constitutional reform?
The participants were generally agreed that referendums
were not appropriate for every aspect of constitutional reform.
It was noted that polling on the then forthcoming AV referendum
demonstrated a low level of knowledge and understanding of the
issues.
One participant noted that public consultations with
which he had been involved had demonstrated a lack of public understanding
of, or any real interest in, many constitutional issues. The public
tended to be uninterested in the process: their interest lay in
the outcome (and individuals cared more about proposals which
directly affected them).
It was noted that the ideas of the Power Commission
on citizens' juries had not been enthusiastically received. It
was further argued that, whilst the former Prime Minister Gordon
Brown had been interested in citizens' juries and largely persuaded
by the arguments of the Power Commission, both Power and Brown
had underestimated the fact that citizens' juries came in different
shapes and sizes and that there was no quality threshold in terms
of time spent on an issue etc.
The Danish Board of Technology was cited as a good
case study of public engagement. This had used a range of consultative
measures and Danish parliamentary committees had employed them
to undertake consultation on technical issues such as genetically
modified food. They had spent three or four days with between
60 and 200 people, and a more informed series of papers and findings
had emerged. It was argued that this was more effective as a public
consultation tool.
What was the appropriate role for experts in the
process?
"Public" involvement could take place at
an elite level—this was typically seen in the limited but
expert responses to most government consultations, many of which
came from the "usual suspects". Experts provided an
intermediate level of public involvement between Parliament/government
and the general public. The public might be represented by bodies
such as trade unions and campaign groups.
A good example of expert involvement was the Scottish
Constitutional Convention which had been initiated by the Campaign
for a Scottish Parliament and which had involved political parties,
local authorities, trade unions and civil society. This had led
to sound proposals for a Scottish Parliament. It was argued that
Wales had suffered from the lack of an equivalent convention.
The importance of thinktanks was also stressed—such
bodies had increased significantly over the last 30 years. There
were now far more people in thinktanks doing serious work on constitutional
issues than had been the case previously and they now had much
more influence.
How had the constitutional reform process worked
in practice in recent years?
The discussion brought out four different periods
of constitutional reform with different characteristics: 1997-99
was characterised by radical change accompanied by consultation
and due process; 1999-2007 by rushed and ill-thought out changes;
2007-2010 by endless consultation with not much to show for it;
and the period from May 2010 by radical reform with insufficient
consultation.
The post-1997 reforms had been preceded by the Cook-Maclennan
Agreement. This process had produced some excellent constitutional
reforms, such as on devolution and human rights. Sections of this
agreement had been a great success because the negotiations had
combined two parties with academic expertise. However, it was
not always possible for a government programme to be prepared
in advance in this way.
The Constitution Unit had fed into that process,
producing detailed reports on devolution, human rights etc—this
had all helped the process.
Finally, most of the post-1997 reforms had been accompanied
by green and/or white papers and, in the case of devolution, referendums,
all of which had helped to build a consensus in favour of reform.
In relation to each of the post-1997 reform strands—human
rights, devolution, Lords reform, freedom of information etc—a
Cabinet committee of senior ministers had examined all the issues
thoroughly. For example, in the case of devolution for Scotland
there had been 14 two-hour committee meetings examining the detail.
This committee system had fallen into abeyance following this
initial period and business had started to be transacted by correspondence.
It was agreed that the 1997-1999 period had been
relatively successful. A number of the constitutional reforms
brought about during that period would now be difficult to reverse:
the package of reform had been largely accepted.
In contrast, it was agreed that the process of reform
post-1999 had been poor, though it was not clear whether this
was because the process had broken down per se or whether
it was simply a case of politics getting in the way.
Since May 2010 the reform process had been greatly
affected by the Coalition agreement which appeared to be regarded
within Government as binding, thus reducing opportunities for
parliamentary scrutiny and legislative amendment. The agreement
had been produced in just five days (considered by some participants
to be too short a time to finalise constitutional proposals) and
no outside expertise had been brought in. There had been no preparation
in 2010, but the reforms proposed in the agreement had become
incredibly important to the internal dynamics of the Coalition.
Lords reform was cited as an example of ongoing consultation
and discussion which had so far not led to very much (beyond the
House of Lords Act 1999). The process at the time of the seminar,
involving discussions in a cross-party committee and the expected
publication of a draft bill subject to pre-legislative scrutiny,
was comprehensive but there remained uncertainty as to what would
come of it.
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