The Process of Constitutional Change

We consider the story of British constitutional reform at the end of chapter 1 (pp 24-47). To this story must now be added a further set of references. Of growing concern during the period of reform has been the issue of the fairness of the process. Too many times it looked (at least to some) that the Government of the day was “playing politics with the constitution”, changing it to suit its needs rather than because what it was seeking to do was genuinely in the national interest. This concern came to the fore in 2003-05 with the sorry saga of the aborted abolition of the post of Lord Chancellor; it surfaced again in 2009-10 as the Brown Government first delayed and then, at the last minute, radically amended its Constitutional Reform and Governance Bill (see p 30); and the arguments were rehearsed yet again when the Coalition rushed out its first round of constitutional reforms, with the Fixed-term Parliaments Bill (now Act) and the Parliamentary Voting System and Constituencies Bill (ditto) seeming to have more to do with coalition compromises than with principled, consultative constitutional reform.

In the light of its strong criticisms of each of these Bills/Acts, the House of Lords Constitution Committee launched an inquiry into what it called The Process of Constitutional Change. Its report (15th report of 2010-12, HL 177) was published in July 2011; the Government response (Cm 8181) was published in September; and both were debated in the House of Lords on 7 December 2011.

The report reiterated various of the criticisms of recent practice (paras 23-49) and made a series of recommendations designed to ensure that in the future best practice would be adhered to. The Committee proposed that ministers should, upon the introduction of a new Bill, explain formally what its constitutional implications were and, if there were any, what processes had been undertaken in developing the Bill (had there been prior public consultation, or pre-legislative scrutiny, or even a referendum, etc) (paras 65-105). This, it was felt, would focus the ministerial mind on questions of due process (as well as on substance) and would help to facilitate more effective parliamentary scrutiny of the process of constitutional change.

These proposals — which were hardly revolutionary — were unceremoniously shot down by the Government, who refused to countenance the idea that any distinction should be drawn between constitutional law-making and law-making in any other field. There was no case, in the Government’s view, for thinking any more carefully about legislation affecting the constitution than legislation affecting any other area of public policy.

While some Peers indicated a degree of sympathy with the Government, a large majority of those who spoke in the debate on 7 December supported the Constitution Committee both in terms of its diagnosis of the problem and as regards its proposed solutions. Despite the Government’s rather uncompromising stance, it may yet be that the Committee has set out a blueprint for at least what should be done. Further measures of constitutional reform are likely to be forthcoming in the 2012-13 session of Parliament. We shall see how closely (if at all) they adhere to the processes recommended by the Committee.



The Process of Constitutional Change