Parliamentary Scrutiny of Constitutional Bills

1
Parliamentary Scrutiny of Constitutional Bills

• Professor Robert Hazell
• Statute Law Society
• 27 January 2007

2
Purpose of this talk

• Which of our laws are constitutional laws?
• Do constitutional laws deserve special
  recognition and respect (a) during their passage
  (b) once enacted?
• Does Parliament recognise certain bills as
  constitutional
• What are the criteria for deciding? Who decides,
  and how?
• How effective is parliamentary scrutiny of
  constitutional bills?
• How to entrench constitutional laws in a country
  with an unwritten constitution

3
First class constitutional bills

• Other countries require special legislative
  majorities, referendums, minimum thresholds
• UK has no special process, save that first class
  constitutional measures take their committee
  stage on floor of House of Commons
• What is a first class constitutional measure?
• What has been the scrutiny process for
  constitutional bills since 1997?

4
First class constitutional bills 2

• Origins of Committee of whole House procedure
• Procedure Committee 1945 report
• All bills to be referred to Standing Committee,
  save for short bills, urgent bills and bills of
  first class constitutional importance
• Eg Parliament Act 1911, Statute of Westminster
  1931

5
Criteria for identifying first class
constitutional bills

• Bills affecting the system of government
  Parliament, executive, judiciary, monarchy
• Structure of the state devolution, borders,
  ?local government
• Elections and the franchise
• Nationality and immigration
• Human rights and civil liberties
• International and EU relations
• Emergency powers

6
Constitutional bills 1997-2005

• 55 constitutional bills in Table 1
• 14 bills on N Ireland
• 15 on elections (of which 5 on NI elections)
• 9 on devolution
• 6 on EU (of which 3 on Treaties)
• 4 on referendums
• 4 on emergency powers

7
Constitutional bills taken in CWH 1997-2005

• 32 bills took committee stage in CWH
• 6 bills were short bills with two to five clauses
• 10 bills were urgent bills, passed in one to four
  weeks
• Urgent bills on N Ireland, elections and
  terrorism
• Leaves 20 bills which went to CWH as first
  class constitutional bills

8
Which of these bills would count as
constitutional elsewhere?

• 20 bills of first class constitutional
  importance in 8 years is a lot
• Has the definition been diluted over the years?
• Six bills would be recognised as fundamental
  constitutional changes in other countries
• Three devolution bills, to Sc, W and NI
• Human Rights Act 98, House of Lords Act 99, Const
  Reform Act 2005

9
Criteria for deciding what counts as first
class constitutional

• Bills on devolution, referendums, EU, parliament
  and human rights are mostly first class
  constitutional
• Bills on elections, N Ireland, emergency powers
  and terrorism are 5050
• Bills on the court system, constitutional
  watchdogs, immigration and asylum, FOI and DP are
  mostly not first class
• There are no reliable rules. With our unwritten
  constitution it is impossible to devise any

10
Who decides what is a first class constitutional
bill, and how?

• In theory HC decides, at end of 2R debate
• In practice the whips decide
• Speaker declines to give a ruling
• Whips concern is to minimise time spent on the
  floor
• New Labour govt tried to split committee stage of
  constitutional bills
• Failed with Govt of Wales Bill 98, and CRA 05,
  but succeeded with GLA Bill 98, PPERA 2000 and
  Regional Assemblies (Preparations) Bill 2003

11
Difference made by CWH

• Increases number of MPs who can take part in
  committee stage average of 18 MPs spoke in
  Standing Cttee, 36 in CWH
• Increases range of MPs who can take part, esp
  from Sc, W and NI
• Reduces time available average time in committee
  was 15 hours in CWH, 25 hours in Standing
  Committee
• Limits number of amendments average of 10
  amendments moved in CWH, 50 in Standing Committee
• CWH procedure has become dignified part of the
  constitution, while more efficient work of
  scrutiny is done in Standing Committee or Select
  Committees

12
Value added by other parliamentary committees

• Half of the 55 constitutional bills were
  scrutinised by two or more specialist committees
• JCHR and Lords Constitution Committee scrutinise
  every bill
• EUC, DPRRC. SASC, WASC, NIASC. FAC, HAC, PASC,
  CASC
• Lords defeat govt in 35 of all legislative
  divisions

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Other improvements to the legislative process

• More rigorous expert and public consultation
  before bill is introduced
• Referendum, expert commission, cross party talks
• Green Paper, White Paper, draft bill
• Only 3 out of 55 constitutional bills preceded by
  draft bill and pre-leg scrutiny
• Modernisation Committee 2006 report greater use
  of pre-leg scrutiny, public bill committees
  empowered to take evidence

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Time for a new set of conventions for
constitutional bills

• All legislative proposals should be preceded by
  Green or White Papers
• Plus (where appropriate) expert commission, cross
  party talks, consultation with devolved
  administrations, or judiciary
• All constitutional bills should be published in
  draft, subject to pre-leg scrutiny
• Committee stage should not be on the floor, but
  in committee upstairs, with evidence sessions
• Checklists for more systematic scrutiny

15
What matters is constitutional principles

• Not possible to define constitutional bills
  subject to best practice procedure
• But constitutional principles can be raised by
  other bills eg asylum, terrorism
• Parliament could develop a set of legal and
  constitutional principles, to be applied in
  scrutiny checklist
• Lords Constitution Committee best placed to do
  this

16
Entrenchment of constitutional laws

• Can Parliament signal to judiciary that an Act is
  constitutional?
• Cameron wants to entrench British bill of rights
• Consent of House of Lords new schedule in
  Parliament Acts
• notwithstanding clause requiring express, not
  implied repeal by any subsequent Act
• Super majority to amend eg NZ Electoral Act 1993
  
• Acts of Union declaration against amendment
• Referendum as political form of entrenchment