The Constitutional Standards of the Constitution Committee: how a code of constitutional standards can help strengthen parliamentary scrutiny

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.

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House of Lords Constitution Committee reports on ‘English votes for English laws’

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The House of Lords Constitution Committee reported on the first year of the House of Commons’ ‘English votes for English laws’ procedure last week. The committee took the view that it is as yet too early to fully evaluate the impact of EVEL, especially as the current government has a majority of both the whole House of Commons and constituencies in England and Wales. It is therefore recommended that an extended trial should take place for the remainder of this parliament, with a final review by a joint committee early in the next parliament. Mark Elliott and Stephen Tierney offer an overview of the report.

The House of Lords Constitution Committee issued its report on ‘English votes for English laws’ (‘EVEL’) last Wednesday. The report examines the new arrangements for the passage of legislation introduced by the government in July 2015 and agreed by the House of Commons twelve months ago. The committee was asked to review the constitutional implications of these procedures by the then Leader of the House of Commons, Chris Grayling, and to report in the autumn of 2016, its conclusions feeding into the government’s own review of the new system.

In this post we reflect upon the evidence gathered by the committee and the report’s main conclusions. We do so in the context of the committee’s recent reports on devolution, in particular its inquiry into the Union and Devolution, published during the last parliamentary session, where the committee considered issues relating to the governance of England while also criticising the ‘ad hoc, piecemeal’ approach to devolution in the UK.

Reviewing the new ‘EVEL’ arrangements

The particular anomaly which the EVEL system is intended to address is of course the West Lothian question, whereby, in the words of the new report, ‘MPs representing the devolved nations are able to debate and vote in the House of Commons on laws only affecting England, while MPs for English constituencies cannot debate or legislate on devolved matters in the other nations.’ Various proposals have been put forward in recent years to deal with this issue, most nobably the recommendations of the McKay Commission which were in the end not implemented. It was not until the 2014 Scottish independence referendum that the issue of lopsided parliamentary representation was addressed. Speaking on the day after the referendum Prime Minister Cameron declared: ‘We have heard the voice of Scotland – and now the millions of voices of England must also be heard. The question of English votes for English laws – the so-called West Lothian question – requires a decisive answer.’

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The government must fundamentally reassess its approach to devolution to safeguard the integrity of the Union

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Last week the House of Lords Constitution Committee published a major report on ‘The Union and devolution’. Mark Elliott and Stephen Tierney summarise the report, in which it is suggested that the government should fundamentally reassess its approach to devolution and that, in future, any new proposals for devolution ‘should be considered within an appropriate framework of constitutional principles that safeguard the integrity of the Union’.

The House of Lords Constitution Committee’s report on ‘The Union and devolution’, published last week, declares the Union to be ‘under threat’, and recommends that the United Kingdom government ‘needs fundamentally to reassess how it approaches issues relating to devolution.’ The report is the culmination of a major inquiry which began taking evidence in October last year. The committee heard from 66 witnesses including academics, think tanks, the chairs of commissions on devolution, the UK and devolved governments, as well as party representatives from across the UK and a wide range of civil society groups. The committee also held evidence sessions in Cardiff and Edinburgh.

In its 142 page report the committee takes stock of the United Kingdom’s territorial constitution. Its assessment of the lack of vision with which devolution has been allowed to develop is particularly hard-hitting:

‘Power has been devolved to Scotland, Wales and Northern Ireland in an ad hoc, piecemeal fashion. Successive Governments have taken the Union for granted. Proper consideration of the cumulative impact of devolution on the integrity of the Union itself has been lacking.’

Nor does the committee see any convincing evidence that the UK government has now come to appreciate the difficulties inherent in this casual approach to constitutional design. It concludes that Oliver Letwin, the minister responsible for constitutional reform, ‘does not recognise the concerns expressed by this Committee and many others at the pressures being placed on the UK constitution by the manner in which the devolution of powers has taken place’. The committee is clear that this approach must end:

‘An inattentive approach to the integrity of the Union cannot continue. Following the significant changes that the territorial constitution has undergone in recent years, the time has come to reflect and take stock. While the constitution should reflect the wishes and interests of the nations and regions, that must not be at the expense of the stability, coherence and viability of the Union as a whole. Should any proposals for further devolution arise in the future, they should be considered within an appropriate framework of constitutional principles that safeguard the integrity of the Union.’

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Is David Cameron actually seeking to destroy the Lords?

Meg-Russell

Yesterday’s new peerage appointments attracted almost universal criticism for further adding to the inexorable growth in size of the House of Lords under David Cameron. But could the gradual erosion of the Lords’ reputation actually benefit the government by weakening parliament? Might it even be a deliberate plan? And – given that the Prime Minister holds all the cards – what can be done about it? Meg Russell comments.

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This post has an eye-catching title, but it isn’t a joke – my question is deadly serious. David Cameron’s list of 45 new appointments to the Lords, announced this week, has attracted predictable wails of outrage – from the media, from opposition parties , and indeed from myself. His Lords appointments in the last five years have been completely disproportionate. As I demonstrated in a report earlier this year, he has created new peers at a faster rate than any other Prime Minister since life peerages began in 1958. Although growth in the size of the chamber has always been a problem, since 2010 it has escalated to new proportions. As is clear from my well-rehearsed graph, updated for this week’s appointments, the upward trajectory increased sharply from 2010. In the 11 years of Labour government from 1999-2010 the chamber grew by 40-70 members (depending how you measure it); in the five short years since Cameron took office, it has grown by two to three times as much.

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Note: ‘Actual eligible membership’ includes those on leave of absence and otherwise temporarily excluded from the chamber, all of whom could potentially return. Source: House of Lords Information Office figures from January each year, updated with 2015 appointments.

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Lords appointments urgently need reforming: but how?

Meg-Russell The appointment of new peers last week has pushed the size of the Lords to its greatest since it was last reformed in 1999. Meg Russell highlights the issues behind having such a large and ‘unruly’ Upper House and argues the situation has now reached crisis point. Reform to both allow existing peers to depart and control new appointments is urgently required.

Recent weeks have seen renewed controversy about David Cameron’s appointments to the House of Lords, with announcement of 22 new peers. Various factors have contributed to frustration about these appointments, particularly among those in the Lords itself. First, they came on the back of the controversy about the Lords Leader being downgraded from Cabinet membership in the reshuffle – a matter that remains unresolved. Second, an August announcement during parliamentary recess necessarily arouses suspicion that Number 10 wanted to avoid this matter being debated (in fact 2014 is the second year in a row to follow this pattern – and while announcements in the so-called political ‘silly season’ may dodge parliamentary scrutiny, they probably exacerbate press attention). Third, the fact that several appointees have been major party donors has reignited concerns about ‘cash for peerages’. But the biggest problems are first, the effect that yet more new appointments will have on the size, and therefore the effective functioning, of the House of Lords, and second, the Prime Minister’s ability to manipulate the party balance in the chamber to favour his own side. Until the system is reformed, each new round of appointments is also destined to attract negative news stories that damage the reputation of parliament and that of the Prime Minister. It is important to begin with some objective facts. The latest set of appointments pushes the size of the Lords to by far its greatest since it was last reformed in 1999, as shown in the graph below:

Source: Figures published by House of Lords information Office (for January each year), updated to August 2014

Source: Figures published by House of Lords information Office (for January each year), updated to August 2014

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Inquiring into the office of Lord Chancellor

Patrick ObrienThe House of Lords Constitution Committee has opened an inquiry on the office of Lord Chancellor. Here, Patrick O’Brien outlines the evolution of the Lord Chancellor’s role. He argues that in an important sense the Lord Chancellor no longer exists and formal abolition of the role could result in positive judicial developments.

On 16 July, Graham Gee and I (as part of the Judicial Independence Project), together with Professor Andrew le Sueur of the University of Essex, gave evidence to the House of Lords Constitution Committee as part of its inquiry into the office of the Lord Chancellor. The inquiry as the call for evidence puts it:

seeks clarity on what the current role is, whether changes to it are needed and what criteria (if any) should apply when appointing future holders of the office.

The pre-2003 Lord Chancellor [LC] was a unique office that combined judicial, parliamentary and executive roles. Occupied by a senior lawyer, generally without any further political ambition, the post was almost apolitical, yet sat at the heart of government. The sacking of the last ‘old’ LC, Lord Irvine, by Tony Blair in 2003 was intended to kick off a series of constitutional reforms that would have included the abolition of the office. Significant resistance in the House of Lords led, however, to a compromise in which the office was retained but in a greatly reduced form. No longer would the LC be a judge or the speaker of the House of Lords. It would now be a purely executive office. The Constitutional Reform Act 2005 sought to preserve two key roles of the LC within the reformed constitutional arrangements: that of ‘minister for courts and the judiciary’ and that of special constitutional guardian of the principles of judicial independence and the rule of law within Cabinet.

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