Jack Simson Caird: Parliamentary Constitutional Review: The Case of the Health and Social Care Reform Bill

There are certain news stories which require a double-take. On the 11th and 12th of October, a number of UK news sources reported that the Health and Social Care Reform Bill was facing strong opposition in the Lords because of the ‘constitutional questions’ it raised. Hearing this on the radio in the morning, perhaps before a dose of caffeine, you might have thought that you had misheard and that for some strange reason Barack Obama’s health legislation was still going through Congress, or, more likely, that another country with a codified constitution was deep in debate over a legislative proposal that sought to radically reform their health system. Students of the British Constitutional do not expect major political debates in the United Kingdom, such as the current debate over the reform of the National Health Service, to focus on ‘constitutional’ questions.

That the constitutional implications of the bill became the focus of the Second Reading debate in the Lords would not be a surprise if you have been following the chamber’s legislative scrutiny work during the current parliamentary session. It has long been noted that the Lords, as a legislative chamber, takes a special interest in constitutional matters, but what this parliamentary session has shown is that they are getting exceptionally good at constitutional scrutiny. In this post, the example of the Health and Social Care Reform Bill is used to highlight this work and in particular the contribution of its own Select Committee on the Constitution.

Why was the British media reporting on the subject of the constitutional implications of the Heath and Social Care Reform Bill on the 11th and 12th of October? On the 30th of September the House of Lords Select Committee on the Constitution published its report on the Bill, and it is this intervention which is the root cause of the media stories. The report is a remarkably effective piece of constitutional analysis. It explains clearly and succinctly the three key changes that the proposed Bill would make to the existing duties of the Secretary of State for Health [para. 13]. The report then explains:

The combination of these changes matters, constitutionally, because it is not clear whether the existing structures of political and legal accountability with regard to the NHS will continue to operate as they have done hitherto if the Bill is passed in its current form. As such, the House will wish carefully to consider whether these changes pose an undue risk either that individual ministerial responsibility to Parliament will be diluted or that legal accountability to the courts will be fragmented.’ [para. 18]

The implication is clear, these changes to the responsibility of the Secretary of State are not, in their view, constitutionally acceptable. It is noticeable that the report does not just issue its judgment, it then invites peers to act.

The media stories of the 11th and 12th of October were actually directly prompted by the amendment to the motion moved by Lord Owen, and supported by Lord Hennessy of Nympsfield. The amendment sought the appointment of a Select Committee to examine the issues raised by the Constitution Committee’s report. The media stories appeared to be mainly interested in the amendment because the government claimed that it if successful it could wreck the Bill, a fact that the authors denied.  The Committee would work alongside the committee of the whole house and its sole focus would be on the constitutional implications of the Bill. The proposed Select Committee would have Parliamentary Counsel at its disposal, to enable it to resolve the issues relating to the proposed changes to the constitutional responsibilities of the Secretary of State. The authors pointed out that this procedure was not without precedent, it was used on the Constitutional Reform Bill in 2004 and was regarded as a success. Lord Owen explained that the normal process, of a committee of the whole house, was less likely to secure the changes to the Bill which the Constitution Committee has called for: ‘only the weight of an all-party and probably unanimous Select Committee will give the weight to make this change.’ In the end the vote on the amendment was lost by sixty-eight votes, however, the loss does not diminish the value of this example, what I am interested in is the political process which led to the vote.

Over ten years ago, the Wakeham Commission on Reforming the House of Lords, recommended the establishment of a committee on the constitution, which would help the House of Lords to act as constitutional ‘longstop’. The Lord Owen amendment and the media stories that reported it are both evidence of the impact that the Committee’s work is now having. The Committee is establishing itself as the United Kingdom’s primary constitutional interpreter and there are number of reasons which can be offered to explain this achievement. Its Bill scrutiny reports contain exceptionally good constitutional analysis, which is both direct and accessible in style, and crucially these reports are having a major impact on legislative debates. The reason for this is that the Constitution Committee is a proper legislative committee, in that it employs tactics to ensure that its analysis get the maximum exposure in the legislative debate on the Bill. The Committee’s Annual Report of 2007-2008 explained that it had adopted the practice of tabling amendments in the name of the Chairman, to ensure that its concerns did not disappear from view in the Committee stage. Additionally, the Committee tries to ensure that its scrutiny reports are published before the Second Reading debate so that peers have the opportunity to engage with the report and the bill at the earliest possible stage. [para. 6]  The Lord Owen amendment and publicity which is created was a direct result of the fact that Committee had managed its report in good time so that peers had a chance to digest the information and react.

Strategy played a part in getting the constitutional questions into the media reports, but the other key factor was the quality of the analysis within the report. One reason to explain how the Committee can produce such a persuasive piece of constitutional analysis is the quality of the personnel at its disposal. The Committee is a good example of a subject specialist committee, in that its membership has a great deal of constitutional expertise. It includes among its members: Lord Norton of Louth, a leading expert on parliaments and the British Constitution, Lord Goldsmith the former Attorney-General, Lord Irvine of Lairg the former Lord Chancellor and Lord Pannick, a leading barrister who specialises in Public Law and Human Rights. In addition two part-time legal advisers serve the Committee: Professor Richard Rawlings and Professor Adam Tomkins. The constitutional expertise within the committee ensures a high quality of analysis, and also gives the committee a special status. The membership is regarded as eminent and unpartisan, and this means that when the committee issues a critical report, the House of Lords is sure to listen.

At this stage it is not clear what the impact of the Constitution Committee’s report will be on the bill. However, if the example of the Public Bodies Bill is anything to go by, the Committee Stage could see the Government make the changes that the Constitution Committee’s report demand. In that case, the government initially resisted the Constitution Committee’s call for alterations to the Henry VIII clauses within the Bill, but after consistent pressure from the Lords, where virtually every speech made reference to the Committee’s report, the Government accepted the need for major changes. If something similar occurs with the Health and Social Care Reform Bill it would confirm my suspicions that we are witnessing the emergence of a form of parliamentary constitutional review in the United Kingdom. That it is the House of Lords which is adopting the practice, is perhaps evidence of the benefit of having legislators operate with the threat of reform over their heads.

It is often noted that the idea of ‘constitutionality’ does not apply to the British political context because of the absence of a codified constitution and a designated constitutional interpreter. However, the Bill scrutiny reports of the Select Committee on the Constitution are beginning to change this and the idea of ‘constitutionality’ appears increasingly important to the UK’s legislative process. Although the Constitution Committee has no formal powers, its ability to influence other Lords is allowing the Committee to take make a real impact on the legislative process.

Jack Simson Caird is a doctoral student at Queen Mary University of London.