Title Page ENHANCING THE METHODOLOGY OF FORMAL CONSTITUTIONAL CHANGE IN THE UK A thesis submitted to The University of Manchester for the degree of Doctor of Philosophy in the Faculty of Humanities 2014 CRAIG PRESCOTT SCHOOL OF LAW Contents Title Page 1 Contents 2 Table of Abbreviations 5 Abstract 6 Declaration 7 Copyright Statement 8 Acknowledgements 9 Introduction 10 1. ‘Constitutional Unsettlement’ 11 2. Focus on Procedures 18 3. Outline of the Thesis 24 Chapter 1 - Definitions 26 1. ‘Constitutional’ 26 2. ‘Change’ 34 3. ‘Constitutional Change’ 36 4. Summary 43 Chapter 2 - The Limits of Formal Constitutional Change: Pulling Iraq Up By Its Bootstraps 44 1. What Are Constitutional Conventions? 45 Page "2 2. Commons Approval of Military Action 48 3. Conclusion 59 Chapter 3 - The Whitehall Machinery 61 1. Introduction 61 2. Before 1997 and New Labour 66 3. Department for Constitutional Affairs 73 4. The Coalition and the Cabinet Office 77 5. Where Next? 82 6. Conclusion 92 Chapter 4 - The Politics of Constitutional Change 93 1. Cross-Party Co-operation 93 2. Coalition Negotiations 95 3. Presentation of Policy by the Coalition 104 4. Lack of Consistent Process 109 Chapter 5 - Parliament 114 1. Legislative and Regulatory Reform Act 2006 119 2. Constitutional Reform Act 2005 133 3. Combining Expertise With Scrutiny 143 4. Conclusion 156 Chapter 6 - The Use of Referendums in the Page "3 UK 161 1. The Benefits of Referendums 163 2. Referendums and Constitutional Change 167 3. Referendums In Practice 174 4. Mandatory Referendums? 197 5. Conclusion 205 Chapter 7 - The Referendum Process 208 1. Initiating the Referendum Process 211 2. The Issue-Framing Stage 222 3. Regulation of Campaigning at Referendums 246 4. Conclusion 251 Conclusion - The Last Chance for the Uncodified Constitution? 255 Appendix 1 - Draft Bills with Constitutional Implications Since 1997 262 Appendix 2 - Results of Referendums 264 Bibliography 267 Word Count: 96,764# Page "4 Table of Abbreviations AV Alternative Vote CUP Cambridge University Press CLJ Cambridge Law Journal EU European Union FPTP First Past The Post IPSA Independent Parliamentary Standards Authority LS Legal Studies LQR Law Quarterly Review MLR Modern Law Review NLJ New Law Journal NHS National Health Service NILQ Northern Ireland Legal Quarterly OUP Oxford University Press PL Public Law Political Parties, Elections and Referendums Act PPERA 2000 2000 STV Single Transferrable Vote SNP Scottish Nationalist Party TEU Treaty on European Union UK Const. L. Blog United Kingdom Constitutional Law Association Blog UKIP United Kingdom Independence Party Unless otherwise stated, throughout the thesis the following references refer to these reference books. ‘British Political Facts 1832-2012’ refers to Colin Rallings and Michael Thrasher (eds) British Electoral Facts 1832-2012 (Biteback 2012) ‘Conservative Party Manifestos 1900-1997’ refers to Iain Dale (ed), Conservative Party Manifestos 1900-1997 (Routledge 2000) ‘Erskine May’ refers to Sir Malcolm Jack (ed) Erskine May: Parliamentary Practice (24th ed, LexisNexis 2011) ‘Labour Party Manifestos 1900-1997’ refers to Iain Dale (ed), Labour Party Manifestos 1900-1997 (Routledge 2000) ‘Liberal Party Manifestos 1900-1997’ refers to Iain Dale (ed), Liberal Party Manifestos 1900-1997 (Routledge 2000)# Page "5 Abstract The University of Manchester Craig Prescott Doctor of Philosophy Enhancing the Methodology of Formal Constitutional Change in the UK Friday, 5th September 2014 Since 1997, the UK constitution has undergone a transformation. This has since become a rolling process which shows little sign of abating. However, some of this constitutional change has been criticised for being rushed, piecemeal and with little consideration of the broader constitution. Yet, despite these criticisms, the underlying methodology of constitutional change has not been discussed in any great detail. This thesis, focusing on formal constitutional change, argues that the methodology to deliver that change should be enhanced to address these concerns. After establishing the limits of formal constitutional change, this thesis then considers how constitutional issues are approached within government and suggests that a Department of Legal Affairs would improve the preparation of proposed changes before being presented to Parliament. The politics of constitutional change are then analysed, with a particular focus on the process of coalition negotiations, which has become a new part of the methodology. The parliamentary process is considered by analysing the parliamentary passage of what became the Constitutional Reform Act 2005 and the Legislative and Regulatory Reform Act 2006. Recent changes to parliamentary procedure have allowed Parliament to scrutinise constitutional legislation more effectively, although there are still areas for significant improvement, particularly during the Committee Stage in the House of Commons. The thesis then considers the role of referendums and establishes when a referendum is required either as a matter of law or convention. The thesis then shows how procedural innovations such as the constitutional conventions in Australia and Ireland or the citizens’ assemblies in British Columbia and Ontario could be used in the UK. Also, as any recommendations of a constitutional convention or a citizens’ assembly are usually put to the rest of the electorate at a referendum, the links between a convention or assembly and the referendum process are discussed. Taken together, these enhancements to discrete aspects of the methodology of constitutional change should ensure that changes are more considered and allow for a more a stable constitutional settlement.# Page "6 Declaration No portion of the work referred to in the thesis has been submitted in support of an application for another degree or qualification of this or any other university or other institute of learning. Page "7 Copyright Statement The author of this thesis (including any appendices and/or schedules to this thesis) owns certain copyright or related rights in it (the “Copyright”) and s/he has given The University of Manchester certain rights to use such Copyright, including for administrative purposes. Copies of this thesis, either in full or in extracts and whether in hard or electronic copy, may be made only in accordance with the Copyright, Designs and Patents Act 1988 (as amended) and regulations issued under it or, where appropriate, in accordance with licensing agreements which the University has from time to time. This page must form part of any such copies made. The ownership of certain Copyright, patents, designs, trade marks and other intellectual property (the “Intellectual Property”) and any reproductions of copyright works in the thesis, for example graphs and tables (“Reproductions”), which may be described in this thesis, may not be owned by the author and may be owned by third parties. Such Intellectual Property and Reproductions cannot and must not be made available for use without the prior written permission of the owner(s) of the relevant Intellectual Property and/or Reproductions. Further information on the conditions under which disclosure, publication and commercialisation of this thesis, the Copyright and any Intellectual Property and/or Reproductions described in it may take place is available in the University IP Policy (see http://documents.manchester.ac.uk/DocuInfo.aspx? DocID=487), in any relevant Thesis restriction declarations deposited in the University Library, The University Library’s regulations (see http:// www.manchester.ac.uk/library/aboutus/regulations) and in The University’s policy on Presentation of Theses.# Page "8 Acknowledgements Firstly, I must thank my supervisor, Professor Rodney Brazier for his support during the four years it has taken to complete this project. This thesis is immeasurably better for his guiding hand. I must also thank the broader Public Law community both within Manchester and beyond for creating a stimulating atmosphere within which to conduct research. In particular thanks to fellow PhD students Ben Adamson and Mark Turner for always being available to run ideas past and discuss how the latest political developments affects my thesis. I’d like to thank Jennifer Thorne, Adele Tyler and Justin Sham, Olivia and Patrick Houlihan, Zena Sorrmally and Steffen Bolwig for being such splendid hosts during my frequent stays in London for teaching and research over the past four years. Finally, I must thank my parents for their support during the last four years. This thesis considers the law and the general situation as it stood on 31st May 2014. All internet links provided were last accessed on 9th September 2014.# Page "9 Introduction ‘All I can see in the community in which I live is a considerable disagreement about the controversial issues of the day and this is not surprising as those issues would not be controversial if there were agreement’. John Griffith1 ‘Process is critical in terms of upholding, and being seen to uphold, constitutional values: particularly those of democratic involvement and transparency in the policy-making process. Moreover, we believe that a proper process is the foundation upon which successful policy is built: a lack of proper process makes an ineffective outcome more likely.’ House of Lords Constitution Committee2 ‘Over the past ten years or so, process has been a constant problem in constitutional reform’. Robert Blackburn3 ‘We have no proper mechanism for constitutional change’. Sir John Baker4 ‘Perhaps