Constitution Committee
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What the Committee does
The Constitutional Committee was first appointed on 8 February 2001. The Committee has both an investigative function in carrying out inquiries into wider constitutional issues and a scrutiny function in examining public bills for matters of constitutional significance.
In most modern democracies, the term 'constitution' refers to a document that sets out the legal structure for the organs of state, rules for the conduct of government,and the rights and duties of the citizens of the state. A single document of this kind does not exist in the United Kingdom, but nonetheless the term constitution refers to the principal organs of the state (the Crown, Parliament, the Government and the courts) and to the fundamental principles which govern their relations with each other and with UK citizens.
The nature of the UK constitution sets it apart from many other democracies in that no one document exists which enshrines the fundamental principles on which the UK as a state is based. Instead, its constitution is derived from a combination of written statute, common law, and unwritten convention. As a result, constitutional change in the UK occurs through the piecemeal, sometimes inadvertent, alteration of separate texts and traditions.
Moreover, the authority of Parliament to legislate for the UK includes power to make changes in laws affecting the constitution. Over past decades many new laws made by Parliament have had a direct impact on the UK constitution - joining the European Union, devolution in Scotland, Wales and Northern Ireland, and reform of the House of Lords. Not all the consequences of such changes have been foreseen. Against this background, a Constitution Committee was first appointed on 8 February 2001 to keep a closer eye on the impact specific legislation might have on the constitution as a whole.
Membership
The Committee consists of 12 members: 4 Conservative, 4 Democrat and 2 Crossbench. The membership draws on the in the House of Lords, and currently includes academics, former private secretary to the Queen, and a former Law Lord. A list of current members can be found here
Relevant Inquiries and Reports
Below are a selection of the inquiries and reports published by the Committee that relate to the work of Charter 88 and the New Politics Network. For a complete full details of the Commitee's work please see its website..
Counter-Terrorism Bill: The Role of Ministers, Parliament and the Judiciary
On the 5th August 2008 the constitution committee published the Tenth Report.
The constitution committee examined the aspects of the Bill that have constitutional implications. This included Part 2: detention and questioning of terrorist suspects and Part 6: inquests and inquiries.
Part 2: Pre- Charge detention and questioning
This section proposes to increase the maximum limit for detention from 28 days to 42 days. This led the committee to consider two main constitutional questions. Firstly, what should be the maximum permitted time of pre-charge detention? and secondly, who should be empowered to authorise such detention?
What should be the maximum period of detention?
Previously the Bill had faced opposition from the Joint Committee on Human Rights with regards to the length of pre-charge detention. The JCHR disagreed with the governments proposals and argued that the Bill failed to comply with the European Court on Human Rights requirement that,
The constitutional committee argued that this was an issue for the house as a whole to decide between the alternative JCHR and government views, and should be ‘ultimately decided by the courts.'
Who should authorise the period of detention?
The committee expressed concern over who authorises the detention. The Bill introduced a new triple layer of authorisation which the committee explained happened,
The committee considered the roles of the executive, parliament and the judiciary in pre-charge detention and concluded that although satisfied ‘that the Bill preserves a constitutionally proper division of responsibilities between the Home Secretary and the judiciary,’ they were critical over the increased involvement of parliament on pre-charge detention. The committee was unconvinced that ‘the privy councillor briefings to three committee chairmen would enhance the effectiveness of parliament scrutiny' and suggested the removal of this proposal from the Bill.
Parliaments role in scrutinising the reserve power order also provoked concern from the committee who concluded that this stage could cause confusion between parliament and the courts. The committee argued that,
The committee were also concerned that the reserve power orders could lead to conflict between Parliament and the Judiciary. This is because,
The committee believed that this was a negative implication of the Bill that could lead to legal challenges over the pre-charge detention warrant, and argued that,
Part 6: Inquests and inquiries
This section of the Bill permits,
The constitutional question the committee were concerned with was, ‘who should decide that a jury be dispensed with in particular cases—a minister or a judge?’
The committee disagreed with Lord West, the parliamentary under-secretary, who argued that this decision should be made by a minister, purporting tradition and issues of national security behind his reasoning. The committee responded by stating that,
The committee also disagreed with the bills proposal that it should be the Secretary of the State rather than the Lord Chancellor who enables the list of specially appointed coroners. They argued that due to the Lord Chancellors original powers that relate to the dismissal of coroners and that, ‘under the Constitutional Reform Act 2005, the Lord Chancellor has special responsibilities in relation to the rule of law and a duty to defend the independence of the judiciary,’ it should be his position.
It should be noted that due to the discussion on appointing and removing specially appointed coroners a sunset clause has been added. This means that further consideration on this issue can take place in the Coroners and Death Certification Bill that is planned for next session.
Legislative and Regulatory Reform Bill
The Committee published its report on the LRRB on
It stated that:
The manner in which the bill has been handled provides a stark illustration of how, in our unwritten constitution, legislative proposals may deliberately or inadvertently affect the basic architecture of our law-making system and the relationship between Parliament and Ministers. Equally, parliamentary scrutiny of the bill demonstrates the value of the bill procedure in identifying and correcting inappropriate Government proposals.
Waging war: Parliament's role and responsibility
Government Response to Waging War Report
The Goverment published its response to the Waging War report in November.
The Government believes that prerogative powers in relation to deploying troops abroad are already accountable to Parliament, in a variety of ways, and reiterated the Prime Minister's comments to the Liaison Committee on 7 February 2006
- “The fact of the matter is that I cannot conceive of a situation in which a Government… is going to go to war – except in circumstances where militarily for the security of the country it needs to act immediately – without a full parliamentary debate”.
The Government believes that it must be the Government which takes the decision in accordance with its own assessment of the position, arguing that this is one of the key responsibilities for which it has been elected. Therefore there is no need for a new convention to outline Parliament's role in the process.
Responding to the publication of the Government's response, the Chair of the Constitution Committee, Lord Holme of Cheltenham said:
- "This response is really not adequate. It demonstrates a complete failure on the part of the Government to give any real consideration to our key recommendation - that the role of Parliament in the deployment of forces outside the UK should be established in a new convention. After the vote on Iraq this seems the logical next step and it has been accepted as such across the political spectrum from Gordon Brown to David Cameron to Sir Menzies Campbell."
- "This temporising and woolly response has very little to do with the merits of the case we made. It is rather reflective of the divisions within the Government on this fundamental democratic issue."
Report Published
 Our View Director of Unlock Democracy Peter Facey said: We welcome the Committee's findings and agree with them that there is now cross-party agreement on this issue. The vote on military intervention in Iraq in 2003 established a precedent that the Government can no longer dismiss. With the situation in the Middle East looking increasingly unstable, this report comes out at an all-too appropriate time. If the Government deems military intervention necessary, it must be prepared to recall Parliament and seek approval. While we respectfully disagree with the Committee's conclusion that a new law codifying this convention may be insuperable, we do feel this strengthens the case for a written constitution. Leaving the exact interpretation of this new rule to Ministers would be open to abuse. NPN submitted evdience to the Committee outlining why we think this aspect of the royal prerogative should be reformed and how it can be done. This can be found here |
On 27 July The Constitution Committee published its report into Parliament's role in waging war.
The report concluded that
- the exercise of the Royal prerogative by the Government to deploy armed force overseas is outdated and should not be allowed to continue as the basis for legitimate war-making in our 21st century democracy. Parliament's ability to challenge the executive must be protected and strengthened. There is a need to set out more precisely the extent of the Government's deployment powers, and the role Parliament canand should play in their exercise.
- Despite the official Government response from the Lord Chancellor and his Ministerial colleagues in favour of the status quo, it is clear from the remarks of political leaders across the spectrum that a cross-party consensus of this sort is more than possible. In that spirit, we recommend that there should be a parliamentary convention determining the role Parliament should play in making decisions to deploy force or forces outside the United Kingdom to war, intervention in an existing conflict or to environments where there is a risk that the forces will be engaged in conflict.
- While not seeking to be prescriptive, we recommend that the convention should encompass the following characteristics:
(1) Government should seek Parliamentary approval (for example, in the House of Commons, by the laying of a resolution) if it is proposing the deployment of British forces outside the United Kingdom into actual or potential armed conflict;
(2) In seeking approval, the Government should indicate the deployment's objectives, its legal basis, likely duration and, in general terms, an estimate of its size;
(3) If, for reasons of emergency and security, such prior application is impossible, the Government should provide retrospective information within 7 days of its commencement or as soon as it is feasible, at which point the process in (1) should be followed;
(4) The Government, as a matter of course, should keep Parliament informed of the progress of such deployments and, if their nature or objectives alter significantly should seek a renewal of the approval.
Government of Wales Bill
The Constitution Committee published a report on the Government of Wales Bill and in particular examined
- The operation of Part 3 of the bill, which will in the near future bring about the next phase of devolution by enabling the Assembly to make Assembly Measures.
- The constitutional implications of Part 4 of the bill, which provides for devolution of primary law making powers at some point in the future, after a referendum.
- The proposed alteration to electoral arrangements for the Assembly, to bar candidates standing concurrently for a constituency seat and on a list.
- the bill's provisions relating to the party political composition of Assembly committees
- the calls that have been made for the bill to provide a referendum in relation to Part 3
- the dormant condition of the Joint Ministerial Committee, a subject previously examined by this Committee in their report Devolution: Inter-Institutional Relations in the United Kingdom, and discussed with the Lord Chancellor in 2004.
It concluded that
- The bill plainly contains provisions of constitutional significance not only for Wales but for the future of the United Kingdom's scheme of devolution generally. The new forms of legislation provided for in Part 3 of the bill legislative competence Orders (made by Parliament) and Assembly Measures (made by the Assembly) also have broad implications for Parliament's role as a legislature. The legislative competence Orders are secondary legislation in which both Houses of Parliament would have less influence than is the case with the passage of bills. This is because each House would consider proposals for Orders and draft Orders simultaneously rather than (as with a bill) consecutively, and there are no opportunities to move amendments to draft Orders; any influence over Government proposals must be made more informally and in a non-binding manner during whatever pre-legislative scrutiny takes place.
- The Government of Wales Bill, which makes extensive use of secondary legislative powers to achieve important constitutional ends, is introduced to the House against a backdrop of controversy about delegated powers provisions in other recent bills. The Company Law Reform Bill[64] has sought to give Ministers "a Henry VIII power of enormous proportions" to make Orders for the purpose of reforming the law relating to companies.[65] As we have pointed out elsewhere, the Legislative and Regulatory Reform Bill seeks to confer even broader powers to change the law by Order[66]. Understandably, the Secretary of State expressed the hope that the Government of Wales Bill will be considered on its own merits with the interests of Wales in mind, and kept separate from concerns about delegating legislative powers on Ministers[67]. We accept that this should be so in that the delegation of law making powers to an elected body is indeed very different from delegating them to Ministers.
Constitutional aspects of the challenge to the Hunting Act 2004
In October 2005 the Countryside Alliance took a caase to the House of Lords to try and overturn the ban on fox hunting on the grounds the Parliament Act 1949 could not be used to pass laws of fundamental constitutional significance. This raised a wide range of questions about how parliament could effect constitutional reform including whether the House of Lords itself could be reformed if Peers did not vote in favour
The nine Law Lords found against the Countryside Alliance but the individual judgments contain many observations on the Parliament Acts 1911-1949 which are of constitutional interest. The Report concluded that
- This decision means that further reforms of the composition and functions of the House of Lords may be carried through under the Parliament Acts, that is, without the consent of the House itself. Contrary to the position of the Court of Appeal, this is the case even if the reforms are "fundamental", since the view taken of the 1949 Act in the Lords was that the reduction in the period of the delaying power was itself of substantial constitutional importance. Thus the creation of a maximum number of days in which the Lords might be permitted to consider bills coming from the Commons could be achieved under the Parliament Acts. So too could the conversion of the House of Lords into a wholly elected chamber, and possibly also the replacement of the upper house's power to decide by a power merely to advise the Government and the Commons. But the judgments do not settle the question of whether the House of Lords could simply be abolished and not replaced under the Parliament Acts.
- The judgments of the Law Lords may be seen by some as opening the door to a determined government with a majority in the Commons to make such constitutional changes as it thinks fit, regardless of the views of the second chamber. However, the historical material reviewed by Lord Bingham and Lady Hale makes clear (in my opinion) that the door has been open in this way to a determined government ever since 1911. Against the background of events in 1911, it was the decision of the Court of Appeal in February 2005 that broke controversial new ground in a reading of the 1911 settlement that gave greater authority to the House of Lords than was justified by the political history.
- As already stated, several indicators in the judgments suggest that some of the Law Lords would be prepared to revisit the classic propositions (by Dicey and others) laying down the legislative supremacy of Parliament, should the need for this arise. These passages are likely to be of great interest to constitutional theorists, who will be likely to speculate on the reasons that prompted such expressions of opinion that were not required by the issues that had to be decided.
