In the first of this series of blogs I pointed out the surge of interest in, and demands for, Royal Commissions on various topics, even though they have not been used as an instrument of policy formation or constitutional reform for more than two decades. Between 1945 and 1999 there were 34 Royal Commissions.
In the second blog, I drew attention to the close cousin of the Royal Commission – independent ‘Departmental Committees’. These were more numerous and very similar to Royal Commissions, just without the Royal status. Between 1945 and 1974 there were 332 significant Departmental Committees (11 a year) but by 2010-2023 the rate had slowed and there were only 47 (4 a year). They still remain an important part of the Whitehall and Westminster policy ecology.
To recap, there are three broad types of commission or committee:
- Inquiries into specific events
- Policy formulation reviews
- Constitutional reviews
The boundaries between these three categories are sometimes fuzzy: inquiries lead to policy proposals or even constitutional changes; policy reviews sometimes imply constitutional changes; constitutional changes may imply policy changes; and so on. Nevertheless, these categories are useful for discerning some trends in British Government – especially on constitutional issues.
As already noted, public inquiries into specific incidents moved away from Royal Commissions. They came to be conducted either by Departmental Committees or actual public inquiries. Some established under various different pieces of legislation or, after the 2005 Public Inquiries Act, to inquiries established under that Act.
Departmental Committees rarely addressed constitutional issues. Of the lists I have explored between 1945 and 1974 only a handful of the 332 Committees even touched on constitutional matters. The only significant one was probably the Fulton Committee on the Civil Service (1966-68) – which was a Departmental Committee rather than a Royal Commission. Between 2010-2023 no Departmental Committee has addressed constitutional questions.
Prior to World War Two, Royal Commissions had been used for inquiries, policy reviews and constitutional reforms. After the War they were limited to the latter two – of the 34 between 1945-1999, 25 were policy focussed and 9 were Constitutional Commissions. None were inquiries. The last Constitutional Royal Commission was in 1999 on the House of Lords.
So, if for the last couple of decades neither Royal Commissions nor Departmental Committees have addressed constitutional reform issues, where have such discussions gone?
The answer appears to be: into Parliament. (See Figure 1).
Figure 1.
Before we take a closer look at this activity it’s important to note two things. Firstly, the fact there have been inquiries and reports by parliamentary committees in itself says nothing about the importance – or otherwise – of the constitutional issues addressed. Secondly it also says nothing about the impact of these activities.
Both of those issues, importance and impact, are beyond the scope of this study. What we are trying to suggest – based on the evidence – is that it seems that the serious discussion of constitutional reform issues has shifted away from Royal Commissions set up by the executive and into committees within Parliament over the past two decades or so. There are obvious strengths and weaknesses to such a move. Parliament perhaps has a greater chance of seeing proposed changes enacted – as for example with the Wright Committee changes to the House of Commons Select Committee system. On the other hand, discussions within Parliament tend in general to be more reactive and less proactive than a Royal Commission.
New Labour 1997-2010
After the last Royal Commission on House of Lords reform (1999-2000), which was only partially implemented, the New Labour Government seemed to lose interest in using Royal Commissions as a vehicle for constitutional reform (although not in the issues).
Other major constitutional reforms enacted by the early New Labour Government – such as on Devolution, on Human Rights, and on Freedom of Information – came as executive initiatives in which parliamentary committees played mainly a scrutinising role rather than as the originators of proposals themselves. The same was true for the later ‘Governance of Britain – Constitutional Renewal’ (2008) which addressed a series of individual issues – some important and others minor.
Any new constitutional ideas from the parliamentary side of government came mainly from the Public Administration Select Committee in the House of Commons, although it was some time before it got into its stride. Between 1997 and 2001 most of its work centred on the nuts and bolts of public administration, although some issues had constitutional or quasi-constitutional implications. Issues like freedom of information; ministerial accountability to parliament; ombudsmen reports; and the Ministerial Code occupied most of PASC’s time.
2002 saw PASC begin to focus on more purely constitutional matters – most obviously the reform of the second chamber as the impact of the Royal Commission on the subject worked its way through the system. It went on to look at ministerial use of the Crown Prerogative; and a draft Civil Service Bill in 2004-5.
‘Government by Inquiry’ featured in 2005 (as the Government pursued the Public Inquiries Bill). Later reports included the basis for machinery of government changes; ministers and the civil service; the Ministerial Code (again); the governance of Britain; and later Parliamentary Commissions of Inquiry (an issue we will return to in later article).
Separate from PASC (but also chaired by the PASC chair Dr Tony Wright MP) the Select Committee on Reform of the House of Commons was appointed by the House of Commons on 20 July 2009 to consider and report by 13 November 2009 on four specified matters: the appointment of members and chairmen of select committees; the appointment of the Chairman and Deputy Chairmen of Ways and Means; scheduling business in the House; enabling the public to initiate debates and proceedings in the House.
Whilst these issues are on the border between constitutional and procedural issues, the Committee itself felt that its recommendations would “rebalance [the Commons] relationship with the Executive”, which most observers agree they have, to some degree at least.
In 2003 the New Labour Government reorganised some legal and constitutional functions of Government creating a Department for Constitutional Affairs (DCA) which took over the functions of the Lord Chancellor’s Department. It was however short-lived and in 2007 the Government transferred prisons and probation from the Home Office to create a new Department for Justice, incorporating the DCA.
As a result, the consequent departmental Select Committees (SCs) – first the Constitutional Affairs SC and then Justice SC – picked up the remit to think about and scrutinise constitutional reforms. Although a superficial scan of their work during the period 2003-2010 suggests there was little of constitutional consequence coming from these SCs other than scrutiny work.
Coalition 2010-2015
The formation of the Conservative-Liberal Democrat Coalition government in 2010 saw the creation of the new Political and Constitutional Reform Committee (PCRC) to scrutinise the work of the Deputy Prime Minister, who took the lead on constitutional reform issues. PCRC ran alongside the PASC which largely ceased to examine constitutional issues.
PCRC summarised its 5 years of work in 2015 thus:
“The Political and Constitutional Reform Select Committee was established in June 2010 to consider political and constitutional reform. Over the last five years the Committee has scrutinised the Government’s programme of political and constitutional reform, including:
- The establishment of fixed-term Parliaments;
- Proposals for a power to recall MPs;
- The introduction of a register of third-party lobbyists;
- Proposed reforms to the House of Lords; and
- The implementation of, and transition to, Individual Electoral Registration.”
It further concluded it had also “allowed scrutiny of subjects that might otherwise have gone unexamined”. They recommended if a future government intended to take forward constitutional reform then a select committee on the subject should continue. Instead, the new Parliament (2015) folded constitutional issues into PASC to form the new Public Administration and Constitutional Affairs SC.
One of the things the PCRC noted was:
“One of our greatest achievements this Parliament has been the extent to which we have engaged the public with our work through consultations and increased use of social media, online surveys and informal events. This has been an extremely positive development which we encourage other Committees to adopt in the future.”
This was indeed novel in UK constitutional reform – although similar approaches have been tried at devolved and local government levels before.
Conservative 2015-2023
Since the 2015 General Election and the advent of purely Conservative administrations, the configuration of constitutional issues in Parliament has changed yet again. The Political and Constitutional Affairs Select Committee, which was the ‘child’ of the Liberal Democrat part of the previous Coalition disappeared. The ‘Constitutional’ part of its remit was merged in to old PASC to create the Public Administration and Constitutional Affairs Committee (PACAC).
There have been plenty of constitutional issues in Parliament since 2015. A count of PACAC reports and special reports show about one third (31/103) were mainly constitutional in content. These included the constitutional fall-out from Brexit; the size of the House of Lords; devolution; confidence motions and the Fixed Term Parliaments Act; Parliament’s role in authorising the use of military force; and so on.
Conclusions
This brief survey has concentrated on ‘constitutional’ issues that might, in the previous era, have been the subject of Royal Commissions that have instead largely been left to Select Committees in the House of Commons.
Of course, Parliamentary Committees also examine a range of important and often contentious policy issues, both to scrutinise Government policy and implementation and also, sometimes, to advance alternatives. We also haven’t yet looked at the role of the Lords, or of Joint Committees or Commissions of both Houses, on these issues. Nor to all the other committees activities that may have had constitutional implications. Those may come later.
We are not suggesting that Parliamentary activity has somehow replaced, replicated or even substituted for Royal Commissions. The latter and Select Committees are clearly very different institutions. Royal Commissions (or Departmental Committees) are creatures of the Executive, whilst Select Committees are Parliamentary bodies – increasingly so since the Wright reforms.
Select Committees are highly political, with only MPs as members. Experts are restricted to supplying evidence in writing or through oral evidence sessions. Royal Commissions were often made up entirely of external, non-political, experts. There are many other differences, but just these two make RCs and SCs very different creatures. Although they do also have some commonalities, most notably an attempt to forge a consensus around the policy to be adopted on contentious issues.
In the final blog in this series we’ll consider how an incoming government might usefully deploy Royal Commissions, parliamentary or other vehicles to address constitutional and policy ‘wicked issues’, including some of the novel forms of collective and participatory policy formation that have appeared in recent years.
Colin Talbot.
Colin is Emeritus Professor of Government, University of Manchester. He also has relationships with the Cambridge Judge Business School and the Federal Trust. Colin has worked extensively with all levels of British government and public services, including being an advisor to two House of Commons Select Committees and appearing as an expert witness over two dozen times in both Houses of Parliament, the Scottish Parliament, and the Welsh Assembly. He has also advised more than a dozen other governments, from the USA to Japan.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.