UK Peers call for clearer constitutional rules

The House of Lords Constitution Committee (Committee) has released a report proposing that the UK adopt a standardised procedure for "constitutional change." The Committee's report was focused on planned constitutional change through "new, better and more appropriate" mechanisms, rather than the "inevitable, constant change" over time of the UK's constitution and nature of its legal system.

As the UK does not have a codified constitution (ie a specific single written constitutional document, such as in this jurisdiction or the United States), there is "no watertight definition" of what sort of change in the law will amount to a constitutional charge. The UK's "constitution" is made up of many written and unwritten elements - including legislation, case law and parliamentary convention. There are no special procedures for the introduction of a constitutional law change, because all primary (ie Parliamentary) legislation has the same status. The Committee has said that it is "not acceptable that the UK has no agreed processes for constitutional change when the constitution is the foundation upon which law and government are built".

The Committee proposed a standardised procedure for dealing with a significant constitutional change. Despite its difficulty defining "constitutional", the report gives guidance on what will amount to "significant constitutional change" - generally law and policy decisions that concern the government's structure and powers. The Committee proposed a "clear and consistent" process which "retains flexibility" when introducing a bill that will lead to significant constitutional change. Prior to a bill's introduction to Parliament, the Committee says the government should:

  • consider the impact of the proposals upon the existing constitutional arrangements;
  • subject the proposals to detailed scrutiny in the Cabinet and its committees;
  • consult widely;
  • publish green and white papers; and
  • subject the bill to pre-legislative scrutiny.

The Committee also proposed that the Minister responsible for the bill should provide Parliament with a written statement which fully describes the processes that a bill has been subjected to before its introduction. The Committee also advocates "comprehensive post-legislative scrutiny".

The Committee was clear in its view constitutional change should only take place with proper regard for the consequences, and government should not "pick and choose which processes to apply to which proposals." However it explicitly states that it does not intend to restrict the Government's power, but merely "hold ministers to account for their decisions."

Submissions to the Committee had been made from a wide range of groups and individuals, including the Law Society of England & Wales, the Law Society of Scotland, Democratic Audit and Unlock Democracy. Democratic Audit said that although the House of Lords' proposals "could improve the democratic quality of constitutional change", there are limits to how much progress can be made without a written constitution document - a topic not within the Committee's scope of consideration.

Click here for a summary of the report, and click here to read the report itself.

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