PCRC Report: Constitutional legislation is ‘qualitatively different from other types of legislation’

21st May 2013

Authors: The Constitution Society

The Commons Political and Constitutional Reform Committee (PCRC) has published its report on legislative standards [1]after an eighteen month inquiry.

The Constitution Society welcomes the report as an important contribution to the campaign for a general improvement in the quality of legislation. [2] We especially endorse the fourth of the report’s five key recommendations:  that a test for identifying constitutional legislation should be agreed between Parliament and the Government.

In evidence to the Committee in 2012, the Society argued that constitutional legislation should be distinguished from ordinary legislation for three reasons[3]:

–        Constitutional legislation is the architecture of the state. The elements of the constitution are unavoidably interconnected, so an alteration in one part of the building can have unforeseen consequences in other parts.

–        Most major constitutional legislation has an effective presumption of irreversibility.

–        A practice has arisen under the current government of employing ‘manner and form’ restrictions where a piece of legislation passed by an ordinary majority imposes restrictions on future Parliaments regarding how that legislation is to be implemented or repealed.

In its report, PCRC endorses this principle and concludes as follows[4]:

• Constitutional law is qualitatively different from other types of legislation. We agree with the House of Lords Constitution Committee that there is currently no acceptable watertight definition of what constitutes constitutional legislation. However, we consider that it can be identified through experience and commonsense, and that this is encapsulated in Lord Norton’s “2Ps” test (does it affect a principal part of the constitution, and does it raise an important issue of principle), and the list of typical features of constitutional legislation suggested by Professor Sir John Baker. We await the Constitution Society’s work to formulate a definition.

• We have considered the Government’s response to the House of Lords Constitution Committee Report, and disagree that a watertight definition is needed before making any changes to processes for preparing and legislating in the area of constitutional law.

• The current ad hoc process of identifying which bills to take on the Floor of the House of Commons in a Committee of the whole House lacks transparency: it is clear that differentiation is taking place in order to decide which bills are to be considered by a Committee of the whole House, but the decision-making process is unclear. We recommend that the Government adopts our suggestion and applies Lord Norton’s “2Ps” test, together with the list of typical features of constitutional legislation as suggested by Professor Sir John Baker, or at the very least sets out why it does not agree with this approach. We also recommend that the Government follows our draft Code of Legislative Standards and explains whether the test has been met for each piece of legislation.

The Constitution Society’s working party on Constitutional Definition [5], referenced in the PCRC report, is currently examining an appropriate test to distinguish major constitutional legislation and how such a test might be embedded in Parliamentary procedures. We hope that the working party will publish its conclusions in the autumn.

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.