New paper by Sir Malcolm Jack and Richard Reid: ‘Financial Privilege: The Undoubted and Sole Right of the Commons?’

The Constitution Society Paper, ‘Financial Privilege: The Undoubted and Sole Right of the Commons?’, by Sir Malcolm Jack and Richard Reid, is available online.

Since ancient times the House of Commons has claimed privilege in respect of financial legislation, whether over bills dealing with taxation or the granting of money to the Executive. Conventions governing the way restrictions apply to the House of Lords in handling such bills have grown up over a long period and are regulated by the Parliament Acts, 1911 & 1949. In 2015 the Lords delayed the draft Tax Credits Regulations, a statutory instrument dealing with fiscal legislation that had passed the Commons. The Government claimed that Commons’ financial privilege had been infringed and subsequently set up the Strathclyde Review to examine the ‘constitutional crisis’ that had arisen and to make recommendations. Since then a number of parliamentary committees have made critical reports of the Review.

In this paper the authors examine the historical origin of the Commons’ privilege, consider the provisions of the Parliament Acts and how they apply to the passage of financial bills between the Houses before turning to the subject of statutory instruments and the Executive’s increasing reliance on them as a means of legislating. They conclude by examining the issues brought out by the Strathclyde Review and endorse the position of the parliamentary committees in recommending that a Joint Committee of both Houses be established to inquire into the whole area of secondary legislation and financial privilege. They stress that this is a matter for Parliament and it should act before Government takes any further steps.

This pamphlet presents the personal views of the authors and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject.

 

13th June 2016

Financial Privilege: The Undoubted and Sole Right of the Commons?

The Constitution Society Paper, ‘Financial Privilege: The Undoubted and Sole Right of the Commons?’, by Sir Malcolm Jack and Richard Reid, is available online.

Since ancient times the House of Commons has claimed privilege in respect of financial legislation, whether over bills dealing with taxation or the granting of money to the Executive. Conventions governing the way restrictions apply to the House of Lords in handling such bills have grown up over a long period and are regulated by the Parliament Acts, 1911 & 1949. In 2015 the Lords delayed the draft Tax Credits Regulations, a statutory instrument dealing with fiscal legislation that had passed the Commons. The Government claimed that Commons’ financial privilege had been infringed and subsequently set up the Strathclyde Review to examine the ‘constitutional crisis’ that had arisen and to make recommendations. Since then a number of parliamentary committees have made critical reports of the Review.

In this paper the authors examine the historical origin of the Commons’ privilege, consider the provisions of the Parliament Acts and how they apply to the passage of financial bills between the Houses before turning to the subject of statutory instruments and the Executive’s increasing reliance on them as a means of legislating. They conclude by examining the issues brought out by the Strathclyde Review and endorse the position of the parliamentary committees in recommending that a Joint Committee of both Houses be established to inquire into the whole area of secondary legislation and financial privilege. They stress that this is a matter for Parliament and it should act before Government takes any further steps.

by Sir Malcolm Jack and Richard Reid. This pamphlet presents the personal views of the authors and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject.

 

13th June 2016

New paper by Professor Dawn Oliver: ‘Constitutional Guardians’

The Constitution Society paper,‘Constitutional Guardians: The House of Lords’ by Professor Dawn Oliver, is available online.

This pamphlet explores the arrangements for guardianship of the UK constitution and its values and the role of the House of Lords in particular.

Effective constitutional guardianship is important in any liberal democracy. In most democracies the courts have important roles in deciding whether laws breach the constitution and striking them down if so. This is not a role that the courts are able to perform in respect of legislation passed by the UK Parliament, since it possesses legislative supremacy. Protection of constitutional values in the UK is therefore essentially a matter for parliamentarians, and particularly a responsibility of the second chamber and its committees: party political partisanship is less strong there than in the Commons, the government does not have a majority in the House of Lords, and an independent and professional element in the membership of the Lords enables that chamber to carry out its guardianship roles authoritatively and fairly. However the composition of that chamber presents political problems for the guardianship role which need to be overcome.

(This pamphlet presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject). 

19th December 2015

Evidence from The Constitution Society published by House of Lords select committee inquiry into ‘The Union and Devolution’

The House of Lords Constitution Committee has recently published evidence submitted by The Constitution Society, as part of its inquiry into ‘The Union and Devolution.’

The published evidence can be viewed online here.

A full list of evidence published by the select committee as part of this inquiry can be viewed here. 

17th October 2015

‘Constitutional Standards, Constitutional Change and EVEL’: A blog by Dr. Jack Simson Caird

Today the Constitution Unit UCL, with the support of the Constitution Society, is publishing the second edition of ‘The Constitutional Standards of the House of Lords Constitution Committee’. The report, by Robert Hazell, Dawn Oliver and myself, contains a code of 140 constitutional standards, covering five areas: the rule of law, delegated powers, the separation of powers, individual rights and parliamentary procedure. The second edition extracts and codifies standards from all 168 reports of the House of Lords’ Constitution Committee published from its inception in 2001 to the end of the 2010-2015 Parliament.

When the first edition of the code was published in January 2014, I made the basic case for the use of a code of constitutional standards within Parliament. In this post, I focus on the role that a code of constitutional standards could play in the specific circumstances facing Parliament today: that of the first parliamentary session of a newly elected government intent on making major constitutional changes. In particular, I will examine the introduction of English votes for English laws (EVEL) as an example of constitutional change, and explore how the use of this code in both Houses of Parliament and in government could enhance the scrutiny of those proposed changes to parliamentary procedure.

A defining feature of the UK’s constitution is that a government fresh from the polls can use its majority in the House of Commons to implement major constitutional change in their first parliamentary session. If the policy was in the manifesto of the winning party then the Salisbury Convention means that it will not be blocked in the second chamber. And the change will be able to ‘bed down’ during the whole of the Parliament. In one sense this is a strength of the UK constitution. A weakness of this arrangement is that it can result in changes being made to the constitution without the detailed analysis and scrutiny within Parliament that they deserve. This is where a code of parliamentary constitutional standards, such as the one included in this report, could make a difference. Read more ›

27th August 2015

A United Kingdom Constitutional Convention

The All-Party Parliamentary Group on Reform, Decentralisation and Devolution in the UK has published its paper ‘A Parliament for Reform 2015-2020′ which can be downloaded here.

The paper includes the following proposed wording for inclusion in the manifestos of all parties at the coming General Election:

“We will establish a UK Constitutional Convention to mark the 800th anniversary of Magna Carta in 2015. The Convention will operate independent of government and will include members of the public as well as representatives of the political parties, local authorities and the nations and regions of the UK. Members of the public will make up more than half of the total membership.

Sitting for no longer than a year, the Convention will consider, and publish recommendations on:
 

  1. The relationship between the nations, and all parts within the UK, including their fair representation in the Westminster Parliament.
     
  2. Arrangements for the governance of England.
     
  3. Other issues that may require the attention of a successor Convention.
     
We will bring before Parliament proposals to respond to the recommendations of the Convention within six months of its reporting.”

12th March 2015

New paper by Vernon Bogdanor: The Crisis of the Constitution

The Constitutions Society’s paper, ‘The Crisis of the Constitution: The General Election and the Future of the United Kingdom’ by Vernon Bogdanor, is available online.

Who governs Britain? That is the question being put to the voters on 7th May. But there are other questions lurking in the background, constitutional questions, that are the subject of this pamphlet. The first of them is – how is Britain to be governed in an era of party fragmentation in which the electoral system either fails to yield a single-party majority government; or, if it does yield such a government, it is likely to be a government enjoying little over one-third of the popular vote?

The second and even more fundamental question is – will there remain a Britain to be governed, or will the election give a further push to those forces in Scotland calling for separation? But these are not the only constitutional questions that Britain will face. There are in addition a European Question, a Human Rights Question and an English Question. The constitution, which many politicians hoped might have been disposed of after the Scottish referendum, has returned to the political agenda with a vengeance. Vernon Bogdanor discusses both the problems and possible solutions. Read more ›

12th February 2015

New paper by Scott Kelly: The slow death of the ‘Efficient Secret’

The Constitution Society’s paper, ‘The slow death of the “Efficient Secret”: The rise of MP independence, its causes and its implications’ by Scott Kelly, is available online.

In recent years, MPs from the main political parties have become increasingly rebellious, defying their Whips on a regular basis. While this trend has been thoroughly analysed, the reasons behind it and the consequences of it have not received comparable attention. This pamphlet assesses the causes and constitutional implications of this dramatic development in the workings of UK political institutions.

The author concludes that the growth in rebellion, more usefully described as the rise of MP independence, coincides with the ‘professionalisation’ of the job of being an MP and, in particular, the increasing amount of time MPs devote to constituency work. In the tug-of-war between the national party and the local constituency for an MP’s attention, it is the constituency that is gaining greater pulling power. The pull of the constituency has important implications for constitutional principles such as Collective Responsibility, that lies at the heart of accountable government in the UK. Read more ›

25th November 2014

After the Referendum…

Political developments around the ‘No’ vote in Scotland last Thursday have highlighted the salience of two recent papers published by The Constitution Society, both available online:

After the Referendum: Options For a Constitutional Convention, by Alan Renwick, was produced in partnership with Unlock Democracy. The pamphlet argued that, whatever the result of Scotland’s independence referendum, careful constitutional thinking would be needed. It examined how such constitution-making should take place. It set out the options, gathered evidence from around the world on how these options might work, and weighed the advantages and disadvantages of each alternative. It concluded that constitutional proposals in the UK should best be developed by a convention comprising a mixture of ordinary members of the public and politicians; and that these proposals should be put to a referendum. This approach, the paper argued, offers the best route to high-quality debate, stronger democratic engagement, and, ultimately, deeper legitimacy for our governing structures.

‘If Scotland says ‘No’: What Next For The Union?’ examined the implications of a ‘No’ vote for the UK constitution. It concluded that a ‘no’ vote would not mean ‘no change’, and that it was very likely that unionist parties would adopt proposals for more devolution. It examined the possible consequences for Scotland and for the Union as a whole. To produce this paper,  The Constitution Society brought together three leading think tanks from across the political spectrum to explore these questions and propose some possible answers. With contributions from Professor Michael Keating, Magnus Linklater, Jim Gallagher and Philip Blond, this collaboration with CentreForum, the Fabian Society and ResPublica set the scene for the post-referendum debate.

22nd September 2014

‘Distinguishing Constitutional Legislation’ paper

The Constitution Society’s latest paper ‘Distinguishing Constitutional Legislation: a modest proposal’ by Andrew Blick, Nat le Roux and David Howarth is now available online.

In most democratic states, the mechanisms for constitutional change are clearly separated from mechanisms for enacting ‘ordinary’ legislation. They are also designed to make any significant alteration in existing constitutional arrangements a relatively difficult undertaking. In Britain, however, there is no legislative process for constitutional change other than ordinary legislation, nor is there any clear or generally agreed distinction between constitutional and other laws.

The potential shortcomings of this approach have become increasingly evident in the period since 1997, which has been marked by frequent, sometimes hectic, constitutional change. Constitutional modification is now an established part of every government’s legislative programme. If elected governments too often seem to amend these rules in a self-interested way then trust in the legitimacy of the political system may be progressively undermined.

This paper considers the options and proposes a mechanism whereby Parliament could identify and impose the special procedures it deems appropriate for legislation of first-class constitutional importance. It concludes that if Parliament wants to, it has the power to bring about a better approach in this area.

19th August 2014