The Constitution Unit has today published a third edition of its report on the Constitutional Standards of the House of Lords Constitution Committee. The report contains a code of constitutional standards based on past Constitution Committee reports, which provide detailed guidance on the application of constitutional principles to legislative proposals. Robert Hazell and Dawn Oliver argue that such a code is particularly needed in the 2017 parliament and could have significantly improved the drafting of the European Union (Withdrawal) Bill.

Today the Constitution Unit has published a third edition of its report on the Constitutional Standards of the House of Lords Select Committee on the Constitution. The report contains a code of constitutional standards based on almost 200 reports from the Constitution Committee, published between its creation in 2001 and the end of the last (2016–17) parliamentary session. The standards provide detailed guidance on the application of constitutional principles to legislative proposals, and cover a range of subjects, including the rule of law, delegated legislation, the separation of powers and individual rights.

The use of a code of soft law constitutional standards is particularly needed in the 2017 parliament. Standards of the type set out in our report could have significantly improved the drafting of the European Union (Withdrawal) Bill. Such a code could also be used by parliamentary committees of either House to enhance the scrutiny of the delegated legislation needed to prepare the statute book for Brexit.

The European Union (Withdrawal) Bill

The European Union (Withdrawal) Bill is providing a showcase of parliament’s ability to scrutinise constitutional legislation. It is packed with provisions that raise matters of fundamental constitutional principle, from the rule of law to Henry VIII powers to devolution. A good number of the amendments reflect arguments made by the Constitution Committee, which unusually reported before the bill received its second reading in the Commons.

The government has been criticised by some, including Hannah White from the Institute for Government, for failing to engage meaningfully with parliament before the bill was introduced to the Commons. The government is now making concessions in order to avoid defeats. Engagement with an officially recognised code of standards could have enabled the government to avoid these difficulties. The Constitution Committee’s recommendations are rarely framed in absolute terms. Many of the standards demand forms of justification for departures from constitutional principles. Even when the committee’s standards go beyond justification, they often demand changes that relate to drafting or the inclusion of safeguards, neither of which normally frustrates the policy aims of a bill.

The basic case for the use of standards is that it can enable basic constitutional concerns to be addressed systematically at the earliest possible stage. This was a point made by the Constitution Committee itself in its recent report on the legislative process:

We continue to believe that there would be merit in producing a set of standards that legislation must meet before it can be introduced.

The Constitution Committee

The irony is that over the years the Constitution Committee has produced a set of standards, without necessarily realising it. They are scattered through the committee’s 187 reports on individual bills from 2001 to 2017. Since 2014 the Constitution Unit has pulled these standards together into a single code. Our hope has always been that the Constitution Committee would start to adopt this codification exercise, and take it over. That would send out a strong signal to Parliamentary Counsel and the rest of Whitehall.

Our main goal is to provide a potential resource for those involved at each stage in the legislative process. The code could be used within government. It could be referred to in the Cabinet Office Guide to Making Legislation, to inform those preparing bills of the standards likely to be raised by the Constitution Committee in the Lords. The government could potentially refer to the standards in the explanatory notes or in a ‘constitutional’ memorandum, similar to those produced for the Joint Committee of Human Rights and the Lords Delegated Powers and Regulatory Reform Committee.

Parliamentarians in both Houses could also use the code when scrutinising legislation. Publication of a code that makes these standards more accessible might prompt more parliamentarians to apply them in the course of the analysis and scrutiny of a bill. These standards would be particularly useful for MPs engaged in pre-legislative scrutiny, as well as those scrutinising bills in public bill committees. Both of those forums lack the capacity to create the institutional memory that has served the Constitution Committee so well, and use of this code would enable MPs to learn from the committee’s experience. The code could also be used by the Constitution Committee itself as a basis to refer to and to develop their standards, which they could update periodically.

Conclusion

One of the principal advantages of a code of constitutional standards devised to assist parliamentary engagement with primary and secondary legislation is that it does not require legislation. It could strengthen scrutiny without changes to procedure, the risk of empowering the courts, or placing disproportionate burdens on government. The Lords Constitution Committee has shown that a parliamentary committee can produce authoritative and measured positions on constitutional legislation. The next step is for the Committee itself to publish those standards in a code: such a code is urgently needed to influence the preparation of legislation within government, and to support more systematic scrutiny in parliament of the tidal wave of legislation, primary and secondary, which will be required to give effect to Brexit.

The third edition of The Constitutional Standards of the House of Lords Constitution Committee can be accessed at this link.

About the author

Robert Hazell is Professor of Government and the Constitution at UCL, and was the founding Director of the Constitution Unit.

Dawn Oliver is Emeritus Professor of Constitutional Law in the UCL Faculty of Laws.