House of Lords - Sessional Report 2010-12

Sessional Report 2010-12 - Constitution Committee Contents

Sessional Report 2010-12

Introduction

1. The House of Lords Constitution Committee is appointed by the House "to examine the constitutional implications of all public bills coming before the House; and to keep under review the operation of the constitution." Accordingly, we conduct bill scrutiny whilst also carrying out in-depth policy inquiries.

2. As indicated in our Sessional Report for 2009-10,[1] we have decided to produce these reports on a sessional (rather than an annual) basis. In making such reports we aim:

to summarise for the House and the public the work we have undertaken during the previous session;
to assess the impact of that work; and
to comment on any other general matters which we consider to be important.

3. The 2010-12 session was unusually long, and as a result the Committee undertook significantly more legislative scrutiny than is normal within a session.[2] We have also been able to observe the intra-sessional impact of the Committee's work to a greater extent than has often been the case. Additionally, over the course of the session, the Committee has developed several new ways of working.

Ten years on: the impact of the Constitution Committee

4. The session marked the tenth anniversary of the Constitution Committee. Over the course of the last decade, the Committee has established a reputation as an authoritative commentator on (and guardian of) the United Kingdom's constitution.

5. The Committee's impact within the House has been evidenced by the support for, and acceptance of, a number of our proposals about primary legislation. The Public Bodies Bill (now the Public Bodies Act 2011) is a particularly noteworthy example.[3]

THE PUBLIC BODIES BILL

6. Our most pressing concerns about the Public Bodies Bill related to its extensive use of clauses delegating to ministers the power to amend other statutes. Primary legislation commonly includes provisions delegating order-making powers to others (usually, though not always, ministers). The use of delegated legislation is an accepted method of allowing the broad framework in statutes to be implemented in an effective and practical manner. However, the Committee has challenged the creation of powers allowing Acts of Parliament to be amended or repealed by delegated legislation (known as "Henry VIII" clauses).[4] Our approach is based on the constitutional principle that it is for Parliament to amend or repeal primary legislation. The use of powers allowing amendment or repeal of primary legislation by ministerial order is therefore to be avoided, save in narrowly-defined circumstances.

7. The Public Bodies Bill sought to grant extensive powers to ministers to abolish, modify or merge a wide range of public bodies. Since the majority of the public bodies listed in the bill were established by statute, the bill constituted an extremely significant grant of Henry VIII powers.

8. In our report on the Public Bodies Bill[5] we expressed our concern that the bill as drafted neither made the case for granting ministers such extensive powers nor contained sufficient safeguards around their use. We concluded that the bill "... strikes at the very heart of our constitutional system, being a type of 'framework' or 'enabling' legislation that drains the lifeblood of legislative amendment and debate across a very broad range of public arrangements."[6]

9. The Government spokesman, Lord Taylor of Holbeach, in his response recognised that those concerns were shared by a number of speakers in the second reading debate on the bill in the Lords. As a consequence, the Government introduced a number of amendments to the bill, including a series of restrictions on ministerial exercise of the powers and an enhanced parliamentary procedure before orders could be made.

10. Later, at the Report stage of the bill, the Government went further, and removed an entire Schedule from the bill. This decision was at least partly influenced by the criticisms contained in our report. The Committee's work on the Public Bodies Bill has been described as the "high water mark" of our legislative impact.[7]

New working methods

11. Over the session, the Committee developed new approaches to carrying out its functions, building on the bill scrutiny and inquiry work which it has undertaken for the past decade.

ENHANCED LEGISLATIVE SCRUTINY

12. First, we have developed an enhanced legislative scrutiny model. This combines the characteristics of traditional bill scrutiny with some aspects of our approach to wider inquiries. We have found this approach particularly beneficial when considering legislation that proposes significant constitutional reform.

13. The best example is to be found in our report on the Fixed-term Parliaments Bill.[8] The purpose of the bill was to remove the power of the Monarch (by convention exercised on the advice of the Prime Minister) to dissolve Parliament and thus trigger a general election. This aspect of the royal prerogative was to be replaced by a fixed date for future general elections, subject to certain provisions to ensure that the House of Commons retained the ability to remove the Government of the day on a motion of no confidence.

14. In carrying out its scrutiny of the bill the Committee heard oral evidence from seven witnesses (including the Minister for Political and Constitution Reform, Mark Harper MP), and received written submissions from a further 41 witnesses. To accommodate the gathering and analysis of this evidence, we launched our inquiry into the bill shortly before it was introduced into the House of Commons. This allowed time to consider the evidence and to report on the bill before it began its passage through the House of Lords.

15. This approach to legislative scrutiny, whilst not appropriate for every bill, enables the Committee to advise the House in much more detail on the policy and constitutional considerations underlying bills of clear constitutional importance.

DISCUSSIONS WITH MINISTERS AND OFFICIALS

16. The Health and Social Care Bill, introduced to the House on 8 September 2011, was intended to reform in a number of respects the legislation governing the National Health Service in England.

17. The Committee reported twice on this bill. The first report[9] found that certain clauses of the bill were unclear as regards the legal and political mechanisms pertaining to the accountability of the NHS: the bill risked diluting the Secretary of State's ministerial responsibility to Parliament, as well as fracturing legal accountability to the courts.

18. Our report was well-received by the House: in the course of the committee stage on the bill, peers from all sides of the House indicated that they shared the concerns we had identified. We were pleased with the positive manner in which the Government engaged with our concerns. Our advisers were able to meet officials from the Department of Health, and the minister attended a private meeting of the Committee. This allowed us to develop a way forward that would improve the bill from a constitutional perspective, without obstructing its delivery of key Government objectives.

19. These meetings enabled us to agree with the Government a series of criteria, listing the aims and intentions of the bill in respect of the political responsibility or legal accountability of the Health Service. On the basis of these criteria, we published in December 2011 a follow-up report,[10] which included proposed amendments to the bill addressing our concerns.[11] On 19 January 2012 the minister, Earl Howe, indicated in the House that the Government intended to introduce amendments in terms very similar to those proposed in our follow-up report. These amendments were accepted by the House (and were not subsequently reversed by the House of Commons). They now form part of the Health and Social Care Act 2012.

20. We hope that, as and when constitutional concerns arise on future bills, this and future Governments will remain willing to engage with the Committee in such a productive way.

SHORT INQUIRIES

21. In addition to undertaking expanded legislative scrutiny, on several occasions in the session the Committee carried out short, focused inquiries. The narrow scope of such inquiries, and the consequent reduction in the need for extensive evidence, enabled us to publish reports on topical issues at short notice.

22. The Committee undertook four such inquiries over the last session—

money bills and Commons financial privilege;[12]
the Cabinet Manual;[13]
voting at the close of poll;[14] and
the proposed referendum on Scottish independence.[15]

Money bills and Commons financial privilege

23. Following a debate in the House about the designation of the Savings Accounts and Health in Pregnancy Grant Bill as a money bill the Committee decided to publish a short report with the aim of providing clarity on the issue. The report set out the provisions governing money bills and Commons financial privilege, with appendices providing further information. Our report has been referenced extensively in academic literature, particularly in the context of the application of Commons financial privilege to Lords amendments to the Welfare Reform Bill and the Legal Aid, Sentencing and Punishment of Offenders Bill.[16]

The Cabinet Manual

24. The previous Government proposed the drafting of a Cabinet Manual in February 2010. The Manual was created to provide the executive with a guide to the various functions of, and relationships between, the institutions of the state in the UK. The draft Cabinet Manual was published for public consultation in December 2010, and the Committee was invited by the then Cabinet Secretary to comment on the draft.

25. The Committee took oral evidence from seven witnesses. Our report contained a number of recommendations as to how the draft Cabinet Manual could be improved. Following the Government response to our report, the final Cabinet Manual contained a number of alterations which reflected our recommendations.

Voting at the close of poll

26. This report arose as a result of a number of voters (as many as 1,200) being unable to cast their ballots at the May 2010 general election due to lengthy queues outside polling stations, despite being in the queue to enter the polling station before 10 p.m.

27. The Committee considered that this effective disenfranchisement raised a serious issue of constitutional principle. Further, we concluded that the legal position on voting at the close of poll was not clear. We drew the attention of the House to what we considered to be a problem in electoral law, as a means of encouraging the Government to bring forward legislation to remedy this deficiency.

28. We may return to this matter when the Electoral Registration and Administration Bill reaches the House.

Referendum on Scottish independence

29. In recent months a significant debate has taken place on the constitutional future of Scotland. Matters raised have included the legal authority to call a referendum on Scottish independence and the design and oversight of any such referendum. Both the UK Government[17] and the Scottish Government[18] launched consultations on these matters, and we sought to inform the debate by publishing a short report setting out our analysis of the legal and constitutional position.[19]

The Government's programme for constitutional and political reform

30. Following the general election of May 2010, the Deputy Prime Minister (Rt Hon. Nick Clegg MP) became the minister responsible for the coalition Government's political and constitutional reform programme. The Government set out their programme for political and constitutional reform as including—

introducing fixed-term parliaments;
legislating to hold a referendum on the alternative vote for the House of Commons and to create fewer and more equal-sized constituencies;
supporting people with disabilities to become MPs;
introducing a power for people to recall their MP;
developing proposals for a wholly or mainly elected second chamber;
speeding up implementation of individual voter registration;
considering the "West Lothian question";
introducing a statutory register of lobbyists;
reforming party funding; and
supporting all-postal primaries.

31. In view of the clear relevance of the Deputy Prime Minister's portfolio to the work of our Committee, we have invited him to give evidence to us annually. The first dedicated annual evidence session covered a number of topics, including the process of constitutional change; House of Lords reform; and the state of the Union.[20] We look forward to hearing from the Deputy Prime Minister again in future.

32. The Government have made progress on a number of these reforms—

fixed-term parliaments have been introduced by the Fixed-term Parliaments Act 2011;
the Parliamentary Voting System and Constituencies Act 2011 provided for a referendum on the introduction of the Alternative Vote (held on 5 May 2011), a reduction in the number of parliamentary constituencies and the revision of constituency boundaries (the process for which is ongoing);
a draft bill and White Paper on the recall of MPs was published on 13 December 2011;[21]
a draft bill and White Paper on House of Lords reform was published in May 2011[22] and referred to a parliamentary joint committee for pre-legislative scrutiny, and a bill is expected to be introduced in the current session;[23]
a bill has been introduced in the current session to introduce individual voter registration;[24]
a commission has been set up, under the chairmanship of Sir William McKay, to consider the West Lothian question in the context of the procedures of the House of Commons; and
the Government have launched a public consultation on introducing a statutory register of lobbyists.[25]

33. Other major constitutional developments have been the referendum in 2011 in which the people of Wales voted to extend the legislative powers of the National Assembly, and the further devolution of powers under the Scotland Act 2012, which was passed with the consent of the Scottish Parliament.

The process of constitutional change

A NEW REPORT

34. One of the first reports produced by the Constitution Committee, in February 2002, was on the process of constitutional change.[26] In light of the amount of constitutional change that has occurred over the past decade, and particularly since the 2010 general election, we decided to revisit this subject. The result was our report The Process of Constitutional Change.[27]

35. In the report, we identified a series of procedural steps that we consider appropriate prior to the introduction of legislation effecting significant constitutional change. In particular we said the Government should—

consider the impact of the proposals upon the existing constitutional arrangements;
subject the proposals to detailed scrutiny in the Cabinet and its committees;
consult widely;
publish green and white papers; and
subject the bill to pre-legislative scrutiny.

36. We also proposed that, on the introduction of a significant constitutional bill into either House, the minister responsible should issue a written ministerial statement setting out the pre-legislative processes to which the bill has been subject. Our recommendations were designed to help bring about a cultural shift in Whitehall regarding constitutional legislation.

37. The Government published their response to our report in September 2011.[28] We were disappointed that the Government in effect denied that constitutional change requires any additional or enhanced consideration beyond that applied to other matters of public policy. We were particularly concerned that the Government did not accept that constitutional legislation is qualitatively different from other legislation. Our disappointment in the Government response was shared by the large majority of the members of the House who spoke in the debate on our report.[29]

38. We had the opportunity to challenge the Deputy Prime Minister on the Government response during his annual evidence session with us.[30] Following this session, the Deputy Prime Minister wrote to us, stating that, contrary to the Government's earlier position, "... while there may be no watertight definition of it or any special legal status accorded to it, there is something distinct to constitutional legislation."[31]We hope that in future the Government's recognition of this distinction will be apparent in practice.

SEMINAR ON CONSTITUTIONAL CHANGE AND OTHER ACADEMIC IMPACT

39. On 31 January 2012 the Constitution Society hosted a seminar to discuss improving the process of constitutional change, in light of the Committee's report on the subject. Our chairman was a speaker at the event. Other speakers included Richard Gordon QC, Graham Allen MP, Eleanor Laing MP and Nat le Roux.

40. During the session the Committee was also the focus of a UK Constitutional Law Group hosted a seminar entitled "From Constitutional Scrutiny to Constitutional Review: Ten Years of the House of Lords Select Committee on the Constitution".[32] Our current chairman (Baroness Jay of Paddington) and one of our former chairmen (Lord Norton of Louth) were among the speakers at the seminar. The Committee's work over the past decade has also been the subject of dedicated academic study.[33]

Constitutional principles

41. In our reports published during the session we made numerous references to the constitutional principles which should underpin legislative and executive action in the UK. In addition to those principles which we have already referred to, we draw to the attention of the House two principles that caused us particular concerns during the 2010-12 session.

DOMESTIC COMMON LAW AND CONVENTIONAL STANDARDS

42. On occasion, the Government have allowed the undoubted importance of the rights enshrined in the European Convention on Human Rights (ECHR) to obscure their vision of the equal significance of domestic, common law rights and protections. This concern arose in particular in relation to Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill. In our report on the bill[34] we emphasised that access to justice is both a constitutional principle in its own right and a component of the rule of law. However, the Government's response to our report focused entirely on the provisions of the ECHR, and made no reference to the domestic constitutional principles which we addressed in our report.[35]

43. The chairman raised this matter in correspondence with the minister,[36] and the minister later accepted that "the rule of law and access to justice are a fundamental part of a properly functioning democracy and a very important element in our constitutional balance."[37] We reiterate that, when considering the constitutional impact of proposed legislation, the Government must give due consideration to our domestic constitutional traditions and principles as well as those enshrined in the ECHR.

THE SEPARATION OF POWERS

44. The doctrine of the separation of powers, at least as it applies between Parliament and the Government on one hand, and the courts on the other, has become an increasingly well-established principle of the UK constitution. We were concerned, therefore, by some of the constitutional implications of the Police (Detention and Bail) Bill.

45. Introduced as fast-track legislation, the purpose of the bill was to reverse the effect of a decision of the High Court.[38] The bill was introduced whilst an appeal from the High Court to the UK Supreme Court was pending. It is extremely unusual for the Government to introduce legislation to reverse retrospectively a decision of the courts before the judicial process in the particular litigation is complete. As we said in our report: "We are concerned that asking Parliament to legislate in these highly unusual circumstances raises difficult issues of constitutional principle as regards both the separation of powers and the rule of law ... we are concerned that, in the understandable rush to rectify a problem which the police have identified as being serious and urgent, insufficient time has been allowed for Parliament fully to consider the constitutional implications of what it is being asked to do."[39] We hope that our concerns are reflected in the Government's approach to introducing legislation in the future.

Referendums in the United Kingdom

46. Our report on referendums in the United Kingdom was published at the end of the 2009-10 session.[40] The Government response to the report[41] and the debate on the report in the House[42] occurred during the 2010-12 session. During the last session the report was of particular relevance in the debates on the European Union Bill and the proposed referendum on Scottish independence.

47. The European Union Bill sought to introduce a number of so-called "referendum locks", whereby ratification of EU treaty amendments would in certain circumstances require approval by way of a UK-wide referendum. Our report on the bill drew on our previous report on referendums. We concluded that the bill broke new ground by imposing referendum requirements on such a large scale and that, due to a combination of policy and practical considerations, the majority of the referendums proposed would likely never take place.

48. We also drew on our 2010 referendums report when preparing our report on the referendum on Scottish independence.[43] We highlighted in this context the twin constitutional imperatives that referendums must be—and must be seen to be—fair and clear.

Relations with the judiciary

49. The Committee has continued to maintain strong relations with the judiciary. During the session, the Lord Chief Justice appeared before us on two occasions: once as an annual evidence session,[44] and once as a witness to our inquiry into the judicial appointments process. During his annual evidence session matters discussed included: the proliferation of criminal legislation; the relationship of the judiciary to the executive and to the Lord Chancellor; the independence of the judiciary; the relationship of the judiciary to the media; and judicial retirement ages.

THE JUDICIAL APPOINTMENTS PROCESS

50. The Committee conducted an in-depth inquiry into judicial appointments. We heard evidence from judges of a variety of ranks, ranging from District Judges and tribunal judges to the President of the Supreme Court. We appreciated the willingness of the judiciary to participate so fully in our inquiry, and we believe our report was enhanced by their input. During his evidence on the judicial appointments inquiry we were pleased that the President of the Supreme Court, Lord Phillips of Worth Matravers, agreed to give evidence to us annually in future.

51. Our report on judicial appointments[45] contained a large number of recommendations, including—

the placing of a specific duty on the Lord Chief Justice to promote judicial diversity;
the application of the section 159 of the Equality Act 2010 "tipping point" provisions to judicial appointments; and
the introduction of flexible working for the senior judiciary.

52. We received the Government's formal response to our report in May 2012.[46] We were pleased to see that, in its response to its public consultation,[47] the Ministry of Justice has accepted a significant number of our proposals.

1 3rd Report, session 2010-12, HL Paper 26. Back

2 See the appendix for a full list of our reports in the session. Back

3 Other bills enacted in the session that were significantly amended on the basis of our recommendations included the Terrorist Asset Freezing Act 2010 and the Health and Social Care Act 2012. Many of our other legislative scrutiny reports were widely cited in the House, including our reports on the Legal Aid, Sentencing and Punishment of Offenders Bill, the Parliamentary Voting System and Constituencies Bill, and the European Union Bill. Back

4 Under the Proclamation by the Crown Act 1539 (known as the Act of Proclamations), proclamations made by King Henry VIII would carry the same force as Acts of Parliament. Though the Act was repealed in 1547, powers of this nature are still named after the King who benefited from them. Back

5 6th Report, session 2010-12, HL Paper 51. Back

6 Ibid., para 13. Back

7 J S Caird, "Parliamentary Constitutional Review: Ten Years of the House of Lords Select Committee on the Constitution" [2012] Public Law 4, at p 6. Back

8 8th Report, session 2010-12, HL Paper 69. Back

9 18th Report, session 2010-12, HL Paper 197. Back

10 22nd Report, session 2010-12, HL Paper 240. Back

11 The follow-up report also contains an appendix in which the Committee outlined its view as to the requirements of ministerial responsibility in the context of the National Health Service. Back

12 10th Report, session 2010-12, HL Paper 97. Back