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Identifying the Value of Parliamentary Constitutional Interpretation Jack Identifying the Value of Parliamentary Constitutional Interpretation Jack Alaric Simson Caird School of Law QMUL 2014 Submitted in partial fulfillment of the requirements of the Degree of Doctor of Philosophy Queen Mary, University of London 1 I, Jack Alaric Simson Caird, confirm that the research included within this thesis is my own work or that where it has been carried out in collaboration with, or supported by others, that this is duly acknowledged below and my contribution indicated. Previously published material is also acknowledged below. I attest that I have exercised reasonable care to ensure that the work is original, and does not to the best of my knowledge break any UK law, infringe any third party’s copyright or other Intellectual Property Right, or contain any confidential material. I accept that the College has the right to use plagiarism detection software to check the electronic version of the thesis. I confirm that this thesis has not been previously submitted for the award of a degree by this or any other university. The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without the prior written consent of the author. 25 July 2014 2 Acknowledgements I am extremely grateful to the School of Law QMUL for awarding me the Graduate Teaching Assistant PhD scholarship that made this project possible. My supervisors, Andrew Le Sueur and Mario Mendez, have provided unstinting support, and it has been a pleasure and a privilege to work with them over the past four years. I would like to thank Grégoire Webber, Danny Nicol, Thomas Poole and David Souden for commenting on draft chapters. I would also like to thank the participants who commented on versions of chapters of this thesis at conferences held at the University of Durham, the University of Hull, the University of Edinburgh and the London School of Economics. Finally, I want to thank my family, who have endured this project in so many ways. 3 Abstract This thesis examines the practice of parliamentary constitutional interpretation. Parliamentary constitutional interpretation is a form of reasoning used by parliamentarians to articulate the constitutional effect of a Bill, within the legislative process in Parliament. The significance of the practice is explored through a combination of empirical study and theoretical enquiry. The first part of the thesis describes and analyses parliamentary constitutional interpretation in three case studies, each on a different Government Bill from the 2010-2012 parliamentary session. Each study provides a fine-grained account of how parliamentarians interpreted the constitutional effect of each Bill and the role this interpretation played during the passage of the Bill. In order to identify the constitutional effect of a particular clause, parliamentarians interpret a range of constitutional norms including: constitutional principles, constitutional statutes and constitutional conventions. In each case study, parliamentary constitutional interpretation played an important role in shaping the constitutional effect of each Bill and holding the Government to account. The second part of the thesis uses the reality of the practice, as described in the case studies, to identify the value of parliamentary constitutional interpretation and to situate the practice within political constitutionalism. Two principal values of the practice are identified. Firstly, parliamentary constitutional interpretation can enhance the level of justification within the legislative process. Secondly, it can facilitate a distinctively parliamentary contribution to the normative content of the constitution. By expanding the role of legislative politics within the constitution, parliamentary constitutional interpretation can develop and strengthen the political model of constitutionalism. These values also serve as both a template for analysis of parliamentary performance and as a guide to parliamentary reform. 4 Table of Contents Acknowledgements ........................................................................................... 3 Abstract ............................................................................................................. 4 1. Introduction ................................................................................................... 7 1.1 A mini case study: the Parliamentary Standards Bill ......................................... 12 1.2 Parliament and the UK constitution ................................................................... 18 1.3 Why should Parliament interpret constitutional norms? .................................... 29 1.4 Structure ............................................................................................................. 41 2. Methods ....................................................................................................... 42 2.1 Defining parliamentary constitutional interpretation ......................................... 44 2.1.1 Constitutional interpretation ....................................................................... 45 2.1.2 What counts as constitutional in the United Kingdom? ............................. 49 2.1.3 Parliamentary constitutional interpretation ................................................. 57 2.2 Methods in the relevant literature ....................................................................... 62 2.2.1 Public law and the parliamentary legislative process in Westminster ........ 63 2.2.2 Political science .......................................................................................... 69 2.3 Methods and parliamentary constitutional interpretation ................................... 75 2.3.1 The case study method ................................................................................ 76 2.3.2 Case selection ............................................................................................. 77 2.3.3 Analysing the parliamentary process .......................................................... 81 2.3.4 The methods used in the second part of the thesis ...................................... 84 3. The Public Bodies Bill ................................................................................ 85 3.1 The constitutional framework of the Bill ........................................................... 86 3.1.1 The Bill as introduced to the House of Lords ............................................. 88 3.1.2 Henry VIII powers ...................................................................................... 90 3.2 The parliamentary debate ................................................................................... 94 3.2.1 The Constitution Committee report ............................................................ 96 3.2.2 Second reading in the House of Lords ...................................................... 100 3.2.3 Clause 11 and schedule 7 .......................................................................... 108 3.2.4 The scope of the power ............................................................................. 109 3.2.5 Parliamentary procedure ........................................................................... 115 Conclusion .............................................................................................................. 124 4. The Health and Social Care Bill .............................................................. 130 4.1 The constitutional framework of the Bill ......................................................... 131 4.1.1 The Bill as introduced to the House of Commons .................................... 133 4.1.2 The duty to provide ................................................................................... 135 4.2 The parliamentary debate ................................................................................. 142 4.2.1 The House of Commons ........................................................................... 143 4.2.2 The first report of the Constitution Committee ........................................ 150 4.2.3 Second reading in the House of Lords ...................................................... 153 4.2.4 The committee stage in the House of Lords ............................................. 155 4.2.5 The second report of the Constitution Committee .................................... 158 4.2.6 The report stage in the House of Lords ..................................................... 161 Conclusion .............................................................................................................. 162 5. The Fixed-term Parliaments Bill ............................................................. 170 5.1 The constitutional framework of the Bill ......................................................... 172 5.1.1 The Bill as introduced to the House of Commons .................................... 176 5.1.2 The duration of a Parliament .................................................................... 178 5 5.2 The parliamentary debate ................................................................................. 184 5.2.1 Entrenching fixed parliamentary terms within the constitution ................ 185 5.2.2 Asquith’s intention .................................................................................... 201 5.2.3 Speaker’s certificates ................................................................................ 208 Conclusion .............................................................................................................
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