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Published online by Cambridge University Press: 02 January 2018
How easy ought it to be to enact constitutional amendment? In the absence of constitutionally prescribed procedures, fundamental reforms in the UK can often appear hurried, under-consultative and controlled by transient political majorities. In the recent referendum on Scottish independence, the NO campaign's promise of additional powers to Holyrood in the face of a possible ‘Yes’ vote appears to fit this pattern (even if, for reasons of political sensitivity, it was not driven directly by members of the Coalition government). A recent sample of concluded constitutional reforms, including the Constitutional Reform Act 2005, the Constitutional Reform and Governance Act 2010 and the Fixed-term Parliaments Act 2011, have drawn criticism from within Westminster on the grounds of defective process. Specific options to improve pre-parliamentary and parliamentary stages of constitutional reform have been proposed with a view to attaining principled procedures of constitutional reform removed from executive control that signal attachment to process values such as wide and effective consultation, deliberation outside and inside Parliament, and informed scrutiny. The foregoing prescriptions for remedying defective processes may, however, be said in the ultimate analysis to retain a normative preference for a more formal, elite-managed vision of constitutional change that is premised upon a limited conception of the citizens' ‘informed consent’. In any case, in purely descriptive terms, top-down managed change does not capture the totality of patterns of past constitutional reform in the UK. In the nineteenth and early twentieth centuries, for example, radical grassroots campaigns for the extension of the franchise resulted ultimately in universal adult suffrage. More recently, the Scotland Act 1998 can be seen as the culmination of a civic society–led, deliberative engagement with ordinary voters over decades that offered an alternative vision of ‘bottom-up’ constitutional reform to that seen in more formal, elite-led processes of constitutional reform. The inclusive and participatory nature of the campaign for Scottish devolution marked out a radically different model of constitutional reform to that which has typified Westminster-style amendment and which is still largely directed by political elites. In such circumstances as prevail currently at Westminster, it is difficult to give much credence to claims that the outcomes of constitutional reform processes enjoy the ‘informed consent’ of the people.
1. Of course, the actual degree to which special majority requirements make constitutional amendment difficult depends in part on the alignment and voting strengths of the various parties on either side of the debate. Thus a ‘rigid’ constitution requiring three-quarters majorities in the legislature to authorise constitutional revision may prove in practice relatively easily amendable where one party enjoys 80% of the parliamentary seats. Equally, a ‘flexible’ constitution that is alterable via simple majority voting in the legislature may in fact be difficult to amend where party representation in the legislature is split 35:30:25:10 across four main parties.
2. For an early example of an attempt to entrench a constitution against all future revision, see John Locke's draft Fundamental Constitutions for the Carolinas (1699), available at http://avalon.law.yale.edu/17th_century/nc05.asp (accessed 22 July 2015). Clause 120 states ‘These fundamental constitutions, in number a hundred and twenty, and every part thereof, shall be and remain the sacred and unalterable form and rule of government of Carolina forever.’ The draft was never ratified.
3. Art II s 3 cl 1.
4. For a recent analysis of constitutional change in 18 countries across Europe, Canada and the United States, see Contiades, X (ed) Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA (Abingdon: Routledge, 2013). See also D Oliver and C Fusaro (eds) How Constitutions Change: A Comparative Study (Oxford: Hart Publishing, 2013)Google Scholar
5. See, however, the draft Scotland Bill 2015, s 4 inserting s 30A into the Scotland Act 1998, which would prevent a future Scottish Parliament from altering the rules governing its own composition unless an amending bill was able to command the support of two thirds of MSPs.
6. The then Deputy Prime Minister, the Rt. Hon. Nick Clegg MP, referred to this as ‘a suppleness, a fluidity and a pragmatism … which many constitutional experts around the world would recognise as a strength’, as quoted in evidence to the House of Lords Constitution Select Committee The Process of Constitutional Change Fifteenth Report of Session 2010–12, HL 177, July 2012 at para 20.
7. Holmes, S and Sunstein, C ‘The politics of constitutional revision in Eastern Europe’ in Levinson, S (ed) Responding to Imperfection – The Theory and Practice of Constitutional Amendment (Princeton, NJ: Princeton University Press, 1995) pp 283–284.Google Scholar
8. Mr Brown, at that time a backbench MP in the last Parliament, indicated that that cross-party talks would start the day after the poll and that the Coalition government would publish a command paper in October, a White Paper in November and a set of draft laws in January 2015. The draft Scotland Bill 2015 was subsequently published on 22 January 2015.Google Scholar
9. See R Levy ‘“Deliberative voting”: reforming constitutional referendum democracy’ [2013] PL 555; S Tierney ‘Constitutional referendums: a theoretical enquiry’ (2009) 72 Mod L Rev 360, who refers to the sense of common constitutional venture and shared identity among citizens that referendums produce.
10. Levy, R ‘Breaking the constitutional deadlock: lessons from deliberative experiments in constitutional change’ (2010) 34 Melbourne U L Rev 805 at 807; Norris, P (ed) Critical Citizens: Global Support for Democratic Government (New York: Oxford University Press, 1999), noting the paradox in the 1990s of growing democratisation and increasing distrust in governmental institutions.Google Scholar
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14. Gutmann, A and Thompson, D Democracy and Disagreement (Cambridge, MA: Harvard University Press, 1996); and for a range of critical commentaries, see Macedo, S (ed) Deliberative Politics: Essays on Democracy and Disagreement (New York: Oxford University Press, 1999).Google Scholar
15. Gutmann and Thompson, above n 14, pp 143 et seq.
16. A Gutmann and D Thompson ‘Democratic disagreement’ in Macedo, above n 14, p 245.
17. Ibid, pp 245–246.
18. The Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland (Edinburgh: The Scottish Government, 2014) p 65.
19. See thus Blackburn's comment in 2010 that ‘process has been a constant problem in constitutional change’, in evidence given to the HL Select Committee on the Constitution The Government’s Constitutional Reform Programme Fifth Report of Session 2010–11, HL 43.
20. K Ewing ‘The politics of the British constitution’ [2000] PL 405.
21. Lyon, A Constitutional History of the UK (London: Cavendish, 2003) chs 20, 24.Google Scholar
22. It is fair to acknowledge background tensions between certain government ministers including, on one side, the Prime Minister Tony Blair and the Home Secretary David Blunkett MP and, on the other, the judiciary over judicial rulings in immigration and asylum matters as well as an attempt by the government to oust the jurisdiction of the courts altogether in certain asylum decisions: see, for discussion, A Le Sueur ‘From Appellate Committee to Supreme Court: a narrative’ in Blom-Cooper, L, Dickson, B and Drewry, G (eds) The Judicial House of Lords 1876–2009 (Oxford: Oxford University Press, 2010) pp 70–71. Much of the discussion that follows below on the 2005 Act is indebted to Le Sueur's account.Google Scholar
23. The 2005 reforms also created a new Judicial Appointments Commission.
24. Ranking, as Le Sueur (above n 22) puts it, as one of the low points of collective Cabinet government. Ibid, p 68. There was no discussion with the Scottish government either. One of two Scottish Law Lords – Lord Hope of Craighead – gave an interview to the Bbc in Scotland in June 2003 in which he spoke of the importance of upholding the integrity of the Scottish legal system and said that the proposals had left many ‘unanswered questions’. Cited in Le Sueur, above n 22, p 69.
25. ‘A new constitutional consensus’ talk delivered at the University of Hertfordshire on 10 February 2005 and cited in Le Sueur, above n 22. Oliver, rather understating the ructions caused by the government's failure to consult in advance, merely notes in passing that the changes were ‘controversial among the judges and other lawyers at the time’. D Oliver ‘Politics, law and constitutional moments in the UK’ in Feldman, D (ed) Law in Politics, Politics in Law (Oxford: Hart Publishing, 2013) p 247.Google Scholar
26. Fixed-term Parliaments Bill Second Report of Session 2010–11, HC 436, September 2010.
27. Fixed-term Parliaments Bill Eighth Report of Session 2010–11, HL 69, December 2010.
28. Wintour, P ‘Lib Dems vote with Labour to reject constituency boundary review’ The Guardian 29 January 2013. The proposal would have given paramountcy to the criterion of equal-sized constituencies (over and above other factors such as geographical and traditional boundaries). Demographic changes since the 2010 general election mean that the failure to reform constituency boundaries produces, at the lower end, constituencies containing around 60,000 electors and, at the upper end, others with 80,000 electors. Notwithstanding the actual result of the 2015 general election, the retention of the old boundaries is generally thought to have favoured the Labour Party, whose main support lies in urban constituencies with decreasing populations, and the Liberal Democrats, who were predicted to lose around 10–15 MPs solely on account of the planned reduction in total parliamentary constituencies to 600.Google Scholar
29. Jowit, J ‘Nick Clegg blocks boundary changes after Lords reform retreat’ The Guardian 6 August 2012.Google Scholar
30. See https://twitter.com/RoryStewartUK/statuses/222713428349947906 (accessed 22 July 2015).
31. The proposal to equalise constituency sizes also received criticism from the House of Lords Constitution Select Committee and the House of Commons Political and Constitutional Reform Select Committee for the lack of pre-legislative scrutiny and public consultation, see HL Constitution Select Committee Parliamentary Voting System and Constituencies Bill, 2010–11, available at http://www.publications.parliament.uk/pa/ld201011/ldselect/ldconst/58/5803.htm (accessed 22 July 2015) at para 47; and HC Political and Constitutional Reform Committee Parliamentary Voting System and Constituencies Bill – Third Report, 2010–11, HC 437, available at http://www.publications.parliament.uk/pa/cm201011/cmselect/cmpolcon/437/43702.htm (accessed 22 July 2015) at para 70.
32. HL Constitution Select Committee, HL 177, above n 6, at para 55.
33. Ibid, at para 1.
34. HC Political and Constitutional Reform Committee Parliamentary Voting Systems and Constituencies Bill First Report of Session 2010–11, HC 422, August 2010, at para 2. In the event, the PCRC was able to produce a report for use by the Commons during the committee stage of the bill.
35. The bill had been prompted by the imminent announcement of the Duchess of Cambridge’s pregnancy. The then Deputy Prime Minister had stated that the decision to fast track this constitutional change was for ‘pragmatic business management reasons’, which drew a response from the HL Select Committee that this could never afford an adequate basis for fast-tracking legislation. See http://www.parliament.uk/business/committees/committees-a-z/lords-select/constitution-committee/news/succession-to-the-crown-bill/ (accessed 22 July 2015).
36. Democratic Audit ‘How democratic is the Uk – the 2012 audit’ (S Wilks-Heeg, A Blick and S Crone) available at http://democracy-uk-2012.democraticauditarchive.com/assets/documents/how_democratic_is_uk.pdf (accessed 22 July 2015), at para 1.1.5.
37. HL Constitution Select Committee Parliamentary Voting System and Constituencies Bill, 2010–11, above n 31, at para 12, which recognised at the same time that exceptional circumstances might require departure from this principle.
38. Fox, R and Korris, M Making Better Law: Reform of the Legislative Process from Policy to Act (London: Hansard Society, 2010).Google Scholar
39. HL Constitution Select Committee Fixed-term Parliaments Bill Eighth Report of Session 2010–11, HL 69, December 2010, at para 179.
40. HM Government Code of Practice on Consultation (July 2008) available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/100807/file47158.pdf (accessed 22 July 2015).
41. Hl Constitution Select Committee, HL 177, above n 6, at para 90.
42. Ibid, at para 93.
43. For a contrastingly candid expression of parliamentary concerns in this area, see the work of the House of Commons Political and Constitutional Reform Committee Voter Engagement in the Uk: Follow up, 2014–15, HC 938, February 2015, at paras 1, 2.
44. Exceptionally, a minister would be relieved of this obligation where there were ‘clearly justifiable reasons for so doing’; ibid at para 73.
45. Ibid, at paras 71–74. The statement should also be included in the Explanatory Notes accompanying the bill.
46. For useful background on the parliamentary timetabling of constitutional bills, see House of Commons Library Standard Note (R Kelly and S Lester) Timetabling of Constitutional Bills since 1997 SN/PC/06371.
47. TE May Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (ed. Jack, M) (London: LexisNexis, 24th edn, 2011) p 566.Google Scholar
48. Committees of the whole House were used during the passages of what became the European Communities Act 1972, the Northern Ireland (Entry to Negotiations) Act 1996, the Human Rights Act 1998; the European Union (Amendment) Act 2008; the Constitutional Reform and Governance Act 2010; the Fixed-term Parliaments Act 2011 and the Parliamentary Constituencies and Voting Act 2011; and the Scotland Act 2012. Other important pieces of arguably constitutional legislation were sent instead to public bill committees, including the Bank of England Act 1998, the Freedom of Information Act 2000, the Justice and Security Act 2013 and the House of Lords Reform (No 2) Act 2014.
49. May, above n 47, p 555. It is also possible for bills to be split between a public bill committee and a Committee of the whole House. For analysis of Labour's resort to splitting bills at committee stage, see R Hazell ‘Time for a new convention: parliamentary scrutiny of constitutional bills’ [2006] PL 247.
50. Although see the earlier criticism about the rushed nature of parliamentary consideration of this Act.
51. Hazell, above n 49. The possibility should remain, however, of controversial/large constitutional bills being split between the floor of the House (on matters of principle) and in committee (for matters of detail).
52. Tomkins, A The Constitution after Scott (Oxford: Oxford University Press, 1998).Google Scholar
53. HL Constitution Select Committee, HL 177, above n 6, at para 38; and see for background A Brown ‘Designing the Scottish Parliament’ (2000) 53 Parliamentary Affairs 542.
54. The Convention was attended by Labour and Liberal Democrat politicians, church groups, trades unions, business groups, voluntary sector and members of ethnic minorities, but was boycotted by the Scottish Nationalists and the Conservatives.
55. Crick, B and Millar, D ‘To make the Parliament of Scotland a model for democracy’ (Edinburgh: Centre for Scottish Public Policy, 1995).Google Scholar
56. Ibid, at 2.
57. Ibid, at 6–7.
58. Paterson, L ‘Why should we respect civic Scotland?’ in G Hassan and C Warhurst A Modernisers' Guide to Scotland (Glasgow: The Big Issue/Edinburgh: Centre for Scottish Public Policy, 1999).Google Scholar
59. Brown, above n 53, at 546.
60. Ibid.
61. Scottish Office Scotland's Parliament Cm 3658 (London: HMSO, 1997).Google ScholarPubMed
62. Ibid, at 30.
63. Scottish Office Shaping Scotland's Parliament, Report of the Consultative Steering Group on the Scottish Parliament, (Edinburgh: The Stationery Office, 1998).Google Scholar
64. The Scottish Parliament should be accessible, open, responsive and develop proposals which make possible a participative approach to the development, consideration and scrutiny of policy and legislation.’ Steering Group Shaping Scotland’s Parliament (1998) – Principle 3 Access and Participation and see para 30.
65. Ibid, Annex D at para 7.3.
66. Ibid, G Annex
67. Ibid, s 2 The Key Principles: Putting Them into Practice at para 34.
68. Ibid, at para 37.
69. Ibid, at para 38.
70. Ibid, at para 49.
71. Scottish Parliament Official Report (9 June 1999); available at http://www.scottish.parliament.uk/parliamentarybusiness/report.aspx?r=4167&i=26614#ScotParlOR (accessed 22 July 2015).
72. For background and analysis, see Breitenbach, E ‘Briefing note for the Strategic Group on Women’; available at http://www.gov.scot/Publications/2003/12/18595/29805 (June 2003) (accessed 22 July 2015).Google Scholar
73. See thus http://www.huffingtonpost.co.uk/richard-jones/social-media-is-revolutio_b_5837246.html (accessed 22 July 2015).
74. Of course, it needs to be noted that referendums run risks of simply replicating majoritarian preferences and/or being non- or under-deliberative.
75. See http://www.bbc.co.uk/news/uk-scotland-scotland-politics-29311147 (accessed 22 July 2015).
76. See http://www.ukpolitical.info/Turnout45.htm (accessed 22 July 2015).
77. HL Constitution Select Committee Referendums in the United Kingdom Twelfth Report of Session 2009–10, HL 99, 7 April 2010, at para 62.
78. Ibid, at para 65. in a non-exhaustive listing, the Hl Constitution Select Committee recommended referendums for decisions about the abolition of the monarchy or either House of Parliament, leaving the Eu, for any nation of the Uk to secede from the Union, changing the electoral system, the adoption of a written currency and changing the currency; see para 94.
79. Ibid, at para 118.
80. K Ghose, scited in article on the BBC website ‘AV referendum: No vote a bitter blow says Clegg’ (6 May 2011); available at http://www.bbc.co.uk/news/uk-politics-13311118 (accessed 22 July 2015).