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This thesis has been submitted in fulfilment of the requirements for a postgraduate degree (e.g. PhD, MPhil, DClinPsychol) at the University of Edinburgh. Please note the following terms and conditions of use: This work is protected by copyright and other intellectual property rights, which are retained by the thesis author, unless otherwise stated. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author. When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. LEGISLATIVE SCRUTINY ON CONSTITUTIONAL GROUNDS IN THE UNITED KINGDOM PARLIAMENT THE CONTRIBUTION OF CONSTITUTIONAL COMMITTEES TO (POLITICAL?) RESPONSIBILITY FOR THE CONSTITUTION PABLO SALVADOR GREZ HIDALGO Presented for the Degree of Doctor of Philosophy The University of Edinburgh 2019 IN MEMORIAM FRANCISCO GREZ MORANDI iii ABSTRACT / LAY SUMMARY This thesis focuses on institutional arrangements designed to strengthen the ability of political institutions to assess the constitutional implications of legislation in the law-making process. It sheds light in the under-developed field of parliamentary constitutional assessments by bringing together disparate constitutional theory literature that discusses or touches upon the distinctiveness of this activity with a view to conceptualise “legislative scrutiny on constitutional grounds” (“LSGC”). The thesis distinguishes three alternative conceptions of LSCG: a legalistic conception, a conception of constitutional deliberation, and a conception of constitutional construction and development. This work characterises these conceptions and employ them as a framework to interpret the working practices of the United Kingdom (“UK”) Parliament. The thesis shows that the UK has a set of institutional arrangements, consolidated through time, which are designed to foster legislative scrutiny of the constitutional implications of legislation. It argues that the Joint Committee on Human Rights, the Delegated Powers and Regulatory Reform Committee and the Select Committee on the Constitution are the main parliamentary drivers of constitutional thinking in the UK law-making process. The thesis suggests that these constitutional committees face significant challenges in pursuing their legislative scrutiny work. From a substantive point of view, the very nature of the UK constitution shapes the work of these committees. Constitutional committees struggle working out the contents of its constitutional principles, values, conventions, practices, doctrines and other standards. The UK constitutional framework is one of multiple layers, and no clear constitutional philosophy. It remains essentially contested, and therefore cannot provide clear normative guidance about which LSCG conception should be preferred. Each committee has responded differently to this challenge, having its own approach to the constitution, underpinned by a different conception of LSCG. From a procedural point of view, constitutional committees have encountered significant difficulties to mainstream constitutional considerations among elected politicians, either in government or in Parliament. Constitutional committee reports provide a highly valuable resource, that might bridge the gap between the highly v technical and complex nature of constitutional matters, and the lack of time, energy and information among elected politicians to engage in constitutional assessments. However, as far as the UK is concerned, these institutional arrangements have not met their normative expectation to mainstream constitutional considerations among elected politicians. Yet, these committees have become necessary points of reference for bill teams, legislative drafters, and the Law Officers. In Parliament, the House of Lords engages with their reports, which both inform their debates and some of peers’ amendments to government legislation. Hence, whilst constitutional committees may not have a substantial impact among elected politicians, they form part of a wider network of political and legal accountability checks. These checks operate on the basis of interactions and collaboration between government officials, the Lords, parliamentary lawyers and legal advisers, and the other relevant civil society actors. It is mainly through these interactions that constitutional committees have managed to operate as conduits through which constitutional considerations are channelled into political decision-making. vi ACKNOWLEDGEMENTS During four years of work, I have incurred in many debts. Firstly, I am grateful to my supervisors, Professor Stephen Tierney and Dr Asanga Welikala. Both were always happy to read numerous drafts, provide insightful feedback and criticism, and support and encouragement throughout this process. This thesis would have not been possible without Professor Tierney’s first-hand knowledge of UK constitutional committees. Dr Welikala constantly pushed me to gain a deeper understanding of the British constitution. On the other hand, I am also grateful to their generosity. Professor Tierney and Dr Welikala provided me with opportunities to develop my skills by inviting me to teach at honours level, to present in the Keith Forum on Commonweal Constitutionalism, to co-convene the Constitutional Law Discussion Group, to be involved in the activities of the Edinburgh Centre for Constitutional Law, to organize academic events on my research topic and also advised me in my prospect academic career. Secondly, I am grateful to many people who provided me with feedback on written pieces, drafts or presentations. At the Edinburgh Law School, I am grateful to Dr Elisenda Casanas-Adam and Professor Neil Walker. Also to Dr Dimitrious Kagarios and Dr Andy Aydin-Aitchison. I also benefited from discussions with Professor Janet Hiebert, who visited the Law School as a MacCormick fellow in 2019. I am especially in debt to professor Chris Himsworth, who read draft versions of chapters one and three, and provided relevant feedback about the overall project. I think I was never able to address properly his objections. Nevertheless, he made me aware of key weaknesses of this research and pushed me to rethink some of my ideas. I am also grateful to the following colleagues and friends: Justine Bendel, Paul Burgess, Kenneth Campbell, Leonardo Cofré, Konstantine Eristavi, Giedre Jokubauskaite, María Paz Gatica, Rodrigo Kaufmann, Mauricio Reyes and Constanza Salgado. I also benefited from discussions at the second and third versions of the Annual Constitutional Law Doctoral Conference, at Strathclyde and Liverpool Universities. I am thankful to those who organized these conferences, specially to Dr Ben Murphy, and to Dr Christopher McCorkindale, Professor Aileen McArgh, Professor Alison Young, Dr Paul Scott, Professor Thomas Poole, Professor Adam Tucker, Professor Aileen Kavanagh and Professor Charlotte O’Brien for their vii feedback. Finally, I am thankful to Hasan Dindjer’s comments at the Oxford- Edinburgh Public Law Postgradute Colloquium, at Jesus College, Oxford. I would also like to thank my family. My parents have been a constant source of love, personal support and encouragement, and left many happy memories during their visits to Edinburgh. I am also grateful to my grandparents, to whom this thesis should have been dedicated. I have missed both my parents and grandparents deeply during this period. Last but not least, I am grateful to my partner, María Jesús Ithurria, for her love, care, advise, company, generosity, laughs, encouragement, loyalty, patience, walks, day-trips, overseas trips, editorial skills, and help to put things in perspective. This research was possible thanks to the financial support of the Chilean Government’s Programa de Formación de Capital Humano Avanzado – Becas Chile de Doctorado en el Extranjero (CONICYT). viii DECLARATION I declare that this thesis has been composed solely by myself, that it is my own work, that this work has not been submitted for any other degree or professional qualification, and that, exception where stated otherwise by reference of acknowledgment, the work presented is entirely my own. PABLO SALVADOR GREZ HIDALGO Edinburgh, 23th December 2019 ix TABLE OF CONTENTS Introduction Problem and research questions ................................................................... 1 Methodology and case study ........................................................................ 5 Contribution ................................................................................................. 6 Outline of the thesis ..................................................................................... 7 Chapter 1 Parliament and the Constitution: A Theoretical Framework to Understand Legislative Scrutiny on Constitutional Grounds Introduction ................................................................................................ 10 What is Legislative Scrutiny on Constitutional Grounds? ......................... 12 Theoretical expectations about Parliament’s performance conducting Legislative Scrutiny on Constitutional Grounds ........................................ 15 Conceptions of Legislative Scrutiny on Constitutional Grounds ............... 23 Conclusion

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