Lords committee publishes report on constitutional reform process


[First Published on Thursday 21st July 2011]

This archive item is a window onto issues as they appeared at the time. It contains facts and opinions which may have been superseded by subsequent events.

After a six-month inquiry, the Lords Constitution Select Committee has published a report on the process of constitutional change.

The Committee argues that the current situation in the UK, where there is no agreed mechanism for constitutional change and governments are able to “pick and choose” which processes apply to various proposals for constitutional reform, is unacceptable.

Their recommendation is that there should be a “clear and consistent process” applied to all cases of “significant constitutional change”.

The report’s summary states that;

We regard it as essential that, prior to the introduction of a bill which provides for significant constitutional change, the government:

  • 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

To ensure compliance with these recommendations, the Committee suggests that the minister responsible for a significant constitutional bill in both the Commons and the Lords should provide a written ministerial statement explaining whether the bill has been subject to each of these processes.

Key to these recommendations is of course the difficult definition of “significant constitutional change”.  Though the Committee accepts that it cannot offer a “watertight definition of what is constitutional”, it suggests that Professor Sir John Baker’s list of constitutional proposals to which special measures could be applied provides “a useful guide to the principal measures which would fall under the rubric of significant constitutional change”;

Sir John Baker defines the following as “constitutional”;

  • Any alteration to the structure and composition of Parliament;
  • Any alteration to the powers of Parliament, or any transfer of power, as by devolution or international treaty, which would in practice be difficult to reverse;
  • Any alteration to the succession to the Crown or the functions of the monarch;
  • Any substantial alteration to the balance of power between Parliament and government, including the conferment of unduly broad or ill-­defined powers to legislate by order;
  • Any substantial alteration to the balance of power between central government and local authorities;
  • Any substantial alteration to the establishment and jurisdiction of the courts of law, including any measure that would place the exercise of power beyond the purview of the courts, or which would affect the independence of the judiciary;
  • Any substantial alteration to the establishment of the Church of England;
  • Any substantial alteration to the liberties of the subject, including the right to habeas corpus and trial by jury.

The enactment of any such proposal would, the Committee argues, alter “the foundation upon which law and government are built”.  As such, it should not be in the government’s power to decide what process leads to their ratification. The Committee hopes that its recommendations are “pragmatic and achievable”, “enabling the flexibility of the United Kingdom’s current constitutional arrangements to be retained whilst enhancing and underpinning those arrangements.”

This publication presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject.