Friday, 25 February 2011

Constitutional Reform ... House of Lords Inquiry

Recent years have seen a large number of legal reforms which may fairly be described as "constitutional" in nature.  Examples include devolution (e.g. Scotland Act 1998); the setting up of the Supreme Court (Constitutional Reform Act 2005) and placing the civil service on a statutory basis (Constitutional Governance and Reform Act 2010)  The present coalition government has also got a considerable appetite for constitutional legislation - for example, the Parliamentary Voting System and Constituencies Act 2011 and the  Fixed Term Parliaments Bill

The House of Lords Constitution Committee is now examining the processes by which constitutional reform is brought about.  This is an important development about which little seems to have been heard.  The committee is to address concerns that the change processes are rushed resulting in badly thought-through reforms which have unintended consequences.  How can the process of reform be improved and what should be the role of Parliament?  The Committee's Chairman - Baroness Jay of Paddington - stated that it was not acceptable for far-reaching changes to be introduced in ad hoc ways.

It is possible for individuals and organisations
to contribute to this process - see Constitution Committee Call for Evidence.  It is a pity that this review has not received greater publicity and there is a need to engage the public more in the whole process of how change is brought about.  After all, the "constitution" sets out the fundamental institutions and principles by which we are governed.  As things stand, constitutional reform seems to largely emanate mostly from within the government of the day and this must leave the way open for accusations that reform is being driven by party political considerations - (e.g. is that the real reasoning behind plans to reduce the number of constituencies?.

The one thing the committee does not seem to be considering is whether the U.K. should adopt a written constitution and, if so, what should be in it.  As things stand, any aspect of the constitution and law can be altered merely by passing an Act of Parliament and, under the doctrine of the Sovereignty of Parliament, any later Parliament can repeal the earlier change.  At least that is the legal theory but practical limitations clearly exist.  As an example, any attempt to reverse the Scotland Act 1998 and abolish the Scottish Parliament would prove to be  impossible in practice unless, of course, the people of Scotland wanted it to happen!

Furthermore, legislation is not necessarily the only way in which aspects of the constitution can change since more subtle processes are continually at work.  There are many "constitutional conventions" which are extremely flexible in nature.  These are discussed in the Constitutional Law textbooks but they have not traditionally been defined in specific words.  Conventions are not regarded as legally binding and are open to interpretation.  However, conventions exist to guide those who exercise the legal powers of government.  A revised Cabinet Manual" is under preparation to summarise many of these and this can be viewed as part of a more subtle change process.

Contributions to the Committee must be received by 31st March 2011.

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