Jack Simson Caird: A Report on the United Kingdom Constitution Law Group Seminar: ‘From Constitutional Scrutiny to Constitutional Review: Ten Years of the House of Lords Select Committee on the Constitution’

A UK Constitutional Law Group seminar on the House of Lords Select Committee on the Constitution took place in Parliament on 25 January. The three speakers were: Lord Norton of Louth (Current member and the first Chairman of the Constitution Committee), Baroness Jay of Paddington (The current Chairman of the Constitution Committee) and Professor Dawn Oliver (University College London). The session was chaired by Sebastian Payne of the UK Constitutional Law Group and was kindly sponsored by Lord Norton of Louth. The seminar was designed to mark the growing influence of the Committee and to assess its contribution to parliamentary scrutiny over the past ten years.

Lord Norton provided an overview of the Committee’s work since establishment. He began by giving an account of how the Committee started out. It was given an extremely broad remit: ‘to examine the constitutional implications of all public bills coming before the House; and to keep under review the operation of the constitution’ (Select Committee on the Constitution, First Report, Reviewing the Constitution, (2001-2002; HL 11), para.1) and it had to quickly work out how it was going to operate. Norton explained that they used their very first report to investigate and decide upon their working methods.  He noted that one of the most important legacies of the report was “the two p’s test” (at para.22).  The test is that for a Bill to trigger a report from the Committee it must raise a constitutional issue that is a principal part of the constitutional framework and one that raises an important question of principle.

Lord Norton set out the different types of report produced by the Committee. The Committee has produced: seventy reports on legislation, twenty reports on own-initiative investigations, and thirty-five reports to the House, which includes annual reports and reports of meetings with the Lord Chancellor. This makes a total of one hundred and twenty-six reports.

Lord Norton gave three examples of own-initiative investigations. The first was a report on devolution from their second parliamentary session in operation. Norton explained that the investigation took up a large amount of time, with evidence sessions taking place in Scotland, Wales and Westminster. The result was a comprehensive report which is a testimony to the time and effort put in the investigation. The second investigation cited by Lord Norton was titled ‘Parliament and the Legislative Process’. The report had a significant impact, as the recommendation in the report which called for post-legislative scrutiny to become standard practice was accepted by the government, and after a Law Commission report, has been implemented. The third example cited was the Fast-Track Legislation report, which recommended that Ministers should have to justify why pre-legislative scrutiny is not used and a shortened timetable is employed. Lord Norton explained that government has taken this recommendation on board and Ministers do now justify the use of fast-track legislation.

Lord Norton made a couple of interesting points on the Bill scrutiny work. He pointed out that often changes to legislation have been secured through correspondence with the relevant minister, rather than through the reports themselves. He also noted that the current session has been the high point in terms of the Committee’s reports impact upon the debates within the House.

In summing up Lord Norton set out what he saw to be the four main functions of the Committee. The first is to inform the constitutional debate in the House. The second is to develop constitutional principles through its legislative reports and investigations. The third is to call the government to account by getting them to justify their proposals. The fourth is to shape the legislative process and how it happens. What they would like to do in the future and are yet to achieve is to shape the constitutional change process. Lord Norton ended by noting that it is now difficult to imagine how Parliament operated without the Constitution Committee.

Baroness Jay of Paddington focused on the work of the Committee in the current session (2010-2012). The Committee has been extremely busy over the current session, publishing twelve bill reports. Baroness Jay emphasized that a common thread to their reports is a concern over the Coalition’s approach to the process of constitutional change. A number of the committee’s reports lament the fact that political expediency has prevented a full and proper consultation process being used. A good example of this would be the Fixed-term Parliaments Bill, and the Constitution Committee’s report contained particularly crisp criticism of government’s short-termism.

In terms of influencing legislative outcomes, Baroness Jay observed that the Committee has had most impact on Bills that were not obviously constitutional. The Public Bodies Bill (now an Act) is the first example of this. The Committee’s report played a major role in the debates on the Bill and led, in a relatively direct way, to the removal of Schedule Seven (one of the most problematic elements of the Bill) and to the insertion of a sunset clause.  The second example is the Health and Social Care Bill. The Committee’s first report on the Bill expressed their disquiet at the Bill’s alteration to the constitutional and legal responsibility of the Secretary of State for the Health Service.  They recommended that the government reinstate the provision from the 2006 Act. At Second Reading the Minister indicated that he would not be wiling to make this particular change, however he did indicate that he would be willing to work with the Committee to find a compromise on this issue before the Bill went to the next stage of the legislative process. The Minister agreed to let officials from the Committee talk directly to the Bill team in the Department of Health. This process produced a series of amendments which the Committee published in their second report on the Bill and are due to be debated on the 9th of February, and in all probabilities they will form part of the Bill.  Baroness Jay noted that this process represents a fascinating innovation in the process of parliamentary scrutiny. It allows for legislative amendments to be produced which respond directly to the concerns of a committee. She asked whether this could provide a template for parliamentary scrutiny by committees in the future.
Baroness Jay ended on a less positive note. She pointed out that despite these instances of influence, where the government were willing to listen, the reality is that there is no obligation for them do so and if they really want to, they can ignore the Committee’s view. She cited as evidence the government’s reaction to a recommendation from the Committee’s report on the process of constitutional change, which argued for ministerial statements on constitutionality to be included in the explanatory notes to a Bill. In their response they refused to accept the case for such a change.

Professor Dawn Oliver set out her view of the place of the Constitution Committee in the British Constitution. Professor Oliver began by pointing out that most Western Democracies have constitutional standards set out in a written constitutional document and an independent body, separate from the executive and the legislature, which conducts post-legislative constitutional review which can invalidate an unconstitutional law (Germany and the USA). The United Kingdom does not have either of these things. Instead Britain relies on other things to protect constitutional principles, such as: the intra-parliamentary, pre-legislative scrutiny work of parliamentary committees, and in particular of the House of Lords Constitution Committee, their effects ‘upstream’ in government and the general British pro-constitutional culture.

Professor Oliver outlined some of the characteristics of Constitution Committee’s that enable it to protect constitutional principles. It is separate from and independent of the government, it conducts preventative and abstract review or bills and draft bills, it examines the working of the British constitution, it articulates objective constitutional standards and criteria for these purposes and it makes recommendations as to how the standards can be upheld, and it is highly regarded. For Oliver the Constitution Committee is in effect a substitute for judicial review of legislation. However, she explained that the United Kingdom is not alone among Western democracies in relying upon an intra-parliamentary body to perform abstract pre-legislative scrutiny. There are especially strong similarities with our Northern European neighbours. In both Sweden and Finland Parliamentary Committees, like the HL Constitution Committee, are charged with scrutinising bills for constitutionality and reporting to government and Parliament on their findings. The Finnish Constitutional Law Committee operates in a quasi-judicial way, and is particularly highly respected in government and Parliament.

Professor Oliver then explained some of the reasons why the United Kingdom shares a similar approach to constitutional review to the Netherlands, Finland and Sweden. In all four countries there is a strong rule of law and broad respect for similar constitutional principles. These principles are upheld by constitutionally non-partisan bodies that are independent of government: the HL Constitution Committee, the Constitutional Law Committees in Sweden and Finland, and the Councils of State in the Netherlands and Sweden. The fact of parliamentary sovereignty and the absence of constitutional judicial review are accepted as placing a heavy responsibility on elected politicians not to misuse their powers in relation to the constitution and that responsibility is broadly accepted by them. Oliver noted that it should be realised that approaches other than judicial review to the protection of constitutionality can, if the culture is right, be just as, if not more, effective and avoid negative unintended consequences.

Oliver argued that above all the existence and work of the Constitution Committee helps to fend off the incoming cultural tides of Americanised constitutional preferences for judicial review of Acts of Parliament, of constitutional irresponsibility on the part of politicians, of partisan constitutional politics, and of the politicisation of the judiciary. In concluding Oliver noted that ‘in its own modest way the Constitution Committee is the Thames Barrier and the Teddington lock and weir of the British Constitution.’

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