Last year, the Institute for Government and the Bennett Institute for Public Policy published a Review of the UK Constitution. One recommendation in that review was that parliament create a joint committee on the constitution. Steph Coulter sets out the case for such a body.

As part of our recently completed Review of the UK Constitution, the Institute for Government and Bennett Institute for Public Policy outlined the key issues with the UK’s current constitutional arrangements and made recommendations for reform. We highlighted the lack of clarity within a system underpinned by an uncodified constitution and the failure of existing political checks to deter constitutional impropriety.

Given the UK system’s reliance on parliamentary sovereignty as its central constitutional principle, we believe that parliament should be central to addressing these issues. Therefore, one of our key recommendations was the establishment of a new Parliamentary Committee on the Constitution, comprised of members from both the House of Commons and House of Lords. By acting as a central and authoritative constitutional guardian, such a body would go some way to improving constitutional clarity and would provide a more effective check on unconstitutional behaviour than existing arrangements.

The need for a central ‘constitutional guardian’

The UK possesses myriad ‘constitutional guardians’ – institutions that play a role in holding politicians to account and ensuring the stability of Britain’s constitutional arrangements. These include the Supreme Court, civil service, parliamentary committees, Privy Council, and independent bodies such as the Electoral Commission and Committee on Standards in Public Life.

Whilst all healthy democracies possess such an ecosystem, many also have a central constitutional guardian that serves as an authoritative voice on constitutional affairs. In democracies with a formal separation of powers, this is usually a Supreme Court, which makes judgements on the constitutionality of legislation and deliberates on competing claims from different constitutional actors.

However, even in countries that, like the United Kingdom, do not have a system based on judicial supremacy, there exist central guardians that act as a powerful non-governmental voice on constitutional affairs. The Netherlands, for example, possesses an independent and technocratic Council of State, which advises government and parliament on the constitutionality of bills before they become law. Finland has a powerful Constitutional Law Committee based within its parliament, which plays a similar role. Both bodies are considered a legitimate voice that ensure that governments do not affect legislation counter to national constitutional principles.

The UK possesses a dense network of constitutional guardians, but it does not have a central body akin to those in Finland and the Netherlands to provide an authoritative voice on the constitution. The Committee on Standards in Public Life and the Electoral Commission play crucial roles in promoting transparency and good behaviour in the public sphere but neither’s remit is wide enough to consider them a central guardian. Moreover, the existence of a parliamentary committee in each house that addresses constitutional issues prohibits a single, unified parliamentary voice on constitutional affairs.

The value of a central constitutional body in the UK context is clear. In a complex system that relies heavily on unwritten constitutional conventions, a central guardian could speak with authority on what the existing conventions are and subsequently determine said conventions have been violated. Such a body could also aid government in developing constitutional policies that account for long-term challenges through in-depth pre-legislative scrutiny and could lead independent research into areas of constitutional importance. Contrary to systems that operate with a constitutional court as a central guardian, a non-judicial constitutional body may address constitutional tensions at an early stage, preventing the high-profile judicial showdowns which are a common occurrence in countries such as the United States.

A Parliamentary Committee on the Constitution

Various models for a central guardian were explored as part of our research. Notably, we considered an independent, extra-parliamentary watchdog, that would act (in ex-senior civil servant Philip Rycroft’s words) as a ‘constitutional conscience for the government, political parties and civil service’. However, whilst the political independence and increased resourcing offered by such a body would be desirable, an extra-parliamentary body would face fundamental challenges in terms of democratic legitimacy and, subsequently, political influence.

Given parliament’s centrality in the UK constitution, we concluded such a body would have to be situated there. As such, we proposed that a Parliamentary Committee on the Constitution (PCC) be established. This body would be comprised of members from both the House of Commons and House of Lords and would function in a manner akin to the Joint Committee on Human Rights. The committee would replace the House of Lords Committee on the Constitution and the constitutional functions of the Public Administration and Constitutional Affairs Committee (PACAC), thus creating a central parliamentary body with the remit to consult on constitutional affairs and hold the government to account on constitutional policy. We believe such a committee would be greater than the sum of its parts by incorporating the political legitimacy of the Commons and the expertise of the Lords.

There are several questions to be answered regarding the composition of such a body. In the report, we note that larger committees make it easier to ensure a diverse range but harder to reach consensus. We also consider the balance between Commons and Lords members, arguing that, in the scenario in which there was an odd number of committee members, the majority should sit with the House of Commons. We also maintain that the government should not be able to hold a majority on the committee, that lay members from outside parliament should be invited to sit on it (in an advisory capacity) and that members should be selected via chamber-wide elections (as opposed to the intra-party electoral process used for existing committees). A committee composed on the above lines has the best chance of being considered impartial and authoritative.

Alongside the usual powers afforded to select committees, we asserted that the PCC should be endowed with some specialist functions. Firstly, it should propose any legislative recommendations on constitutional matters as amendments in the name of the Chair (who would be a member of the House of Commons), which we argue that the Speaker should select for debate, at report stage, as a matter of principle. Secondly, the committee should be given the power to request a delay to constitutionally significant legislation that it believed had not undergone adequate scrutiny. Lastly, the committee should be able to refer significant non-legislative resolutions to a debate and vote on the floor of the House of Commons, which should be given priority over other government business (as is the case for breaches of privilege or contempt of parliament). Such a process could prove instrumental should there be concerns about an abnormally long prorogation, as was the case in 2019.

Challenges

In the process of writing our report, and indeed in the months since its release, we have had to consider some of the challenges associated with implementing such a model effectively. Every significant constitutional innovation is likely to face barriers to success and tensions with existing constitutional arrangements. We believe there are three key concerns in this instance.

Firstly, and most strikingly, unlike comparable bodies elsewhere, a PCC would have no written document against which to measure legislation and behaviour. For some, this may be akin to the committee attempting to mark homework without an answer sheet. Be that as it may, the practices of the Lords Constitution Committee, in which it draws on the in-depth constitutional expertise of its members and uses its previous recommendations as precedent may prove instrumental. Furthermore, we propose that the committee’s first act should be to determine a list of high-level constitutional principles (e.g. parliamentary sovereignty, democracy, rule of law) that would structure future analysis and recommendations. This process is akin to the Committee on Standards in Public Life’s outlining of the seven ‘Nolan Principles’ as its first act.

Secondly, one of the stimulants for our review project was the recognition that the UK’s territorial arrangements have experienced considerable instability since Brexit. A central constitutional guardian ought to have a role in considering the future of devolution and smoothing over disputes between central and devolved governments. However, a Westminster-based body is likely (in either perception, reality or both) to have a bias in favour of the demands of the political centre. It is therefore crucial to ensure that the composition of the PCC is reflective of the needs and desires of all four nations of the United Kingdom, and have representatives from across the English regions. A larger-than-normal committee is one way to achieve this, as is a guesting procedure, which would allow representatives from devolved bodies and English regional government to attend committee meetings (albeit without voting rights).

Lastly, some may critique the establishment of a body with no formal powers as being disproportionate to the constitutional challenges the United Kingdom faces. Indeed, under a system of parliamentary sovereignty, there would be no formal mechanism to compel parliament to take heed of the committee’s analysis and recommendations. However, the value of the PCC would emanate from its ability to exercise soft power. By making recommendations in an informed and non-partisan way, we envisage it playing the role of a ‘reason-demanding body’ that forces government to publicly consider its position on various constitutional issues. Furthermore, we would envisage such a body having an enhanced profile as a result of its Joint Committee status and increased powers, which would hopefully allow constitutional issues to be more widely understood and reported by the media. Ultimately, the likelihood of the committee achieving this status is contingent on several factors: its ability to engage constructively with the government, public and parliament; its ability to garner cross-party support; the appointment of qualified members from both houses; and the achievement of consensus by committee members on contentious issues.

Conclusion

In an era in which democracy is being challenged across the globe, the importance of a robust ecosystem of constitutional guardians should not be understated. The introduction of a Parliamentary Committee on the Constitution would represent a meaningful addition to the UK’s existing network of guardians by providing an important political check on government and bringing greater clarity and cohesion to the UK’s constitutional system.

Moreover, the establishment of such a committee is not anathema to wider structural changes to the UK’s constitution, such as electoral reform, federalism or the establishment of a codified central document. Indeed, the existence of a dedicated and powerful parliamentary committee ought to promote sober and analytic discussions on the merits and drawbacks of wider constitutional changes. In this sense, it is an eminently practical and forward-looking innovation that could be readily adopted by both constitutionally radical and conservative governments.

About the author

Steph Coulter is a Research Assistant at the Bennett Institute for Public Policy.

Featured image: UK Parliament (CC BY 3.0), via Wikimedia Commons.