The Commons committee stage of 'constitutional' bills Research Paper 97/53 20 May 1997 The new Government has come to power pledged to enact a substantial package of 'constitutional reform'. Before and during the May general election there was speculation that a Labour Government would seek to enact its legislation by way of revised legislative processes in Parliament, and in particular would not always retain the committee stage of its 'constitutional bills' in Committee of the Whole House, but send some or all of them 'upstairs' to standing committee. This Paper examines the theory and practice of keeping 'constitutional bills' on the Floor of the House, and is a companion Paper to Research Paper 97/64, Aspects of Parliamentary reform, which examines the issues surrounding possible changes in Parliamentary procedure and practice, generally and at the outset of a new Parliament. Barry K Winetrobe Home Affairs Section House of Commons Library Library Research Papers are compiled for the benefit of Members of Parliament and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public. Summary The practice that the committee stage of certain bills of a 'constitutional' nature are not sent routinely to standing committee but are retained on the Floor, in Committee of the Whole House, is derived from the immediate post-war period when the Labour Government under Attlee came to power with a massive majority in the summer of 1945. It proposed that the practice of sending all public bills in the Commons 'upstairs' should become the norm, and that the pre-war exceptions for major bills be abandoned , except for some Bills, such as 'bills of first class constitutional importance'. This proposal was considered and accepted by a Procedure Committee and by the House. This Paper examines the difficulties in defining 'constitutional bills', especially those of 'first class constitutional importance', in the Westminster context, and then considers the history and development of the Commons committee stage of bills, with particular reference to the trend since the late nineteenth century towards taking it 'upstairs' in standing committee rather than on the Floor. The practice of splitting the Commons committee stage of bills in this context is also examined, although it appears extremely rare for a bill which may be defined by some as 'constitutional' to be treated in this way in modern times. Splitting is commonly used for Finance Bills (since the late 1960s) or to allow particular issues, especially those of a social/moral nature, within a public bill to be considered fully by the whole House. Finally, the more recent debate on the so-called 'convention' of keeping 'constitutional bills' on the Floor (including exchanges in the new Parliament) is reviewed, citing academic and political analyses of Parliamentary practice and possible changes by an incoming Labour Government. CONTENTS Page I Introduction 5 II 'Constitutional bills': some problems of definition6 A. 'constitutional' bills6 B. Bills of 'first class constitutional importance'10 III Commons committee stage13 A. History and Development13 IV Splitting of the committee stage18 V The current debate22 Appendix 'Constitutional Bills': second readings29 Research Paper 97/53 "You cannot play about with the British Constitution in a Committee upstairs, to put it colloquially" -- Herbert Morrison, 19451 "The rules of the House contain no definition of what is, or what is not, a constitutional Bill, nor do they lay down any special procedures for the Chair to enforce in relation to such Bills" -- Mr Speaker, 19812 "The Maastricht Bill had to be debated in this Chamber, of course, because it was a constitutional issue" --- Madam Speaker, 7 May 19973 I Introduction There was much discussion before and during the general election campaign about the possibility that a Labour Government, with a manifesto containing a significant package of 'constitutional reform', could seek to alter the rules and practices of the two Houses' legislative processes in order to enact it. Perhaps the main suggestion that has been debated is that all or part of the committee stage of such bills may not be taken entirely or at all on the Floor, in Committee of the Whole House ('CWH'), but 'upstairs' in standing committee. Bills are normally committed to a standing committee "unless the House otherwise order": S.O. no. 63(1). Erskine May states that "it is the regular practice for Government bills of first class constitutional importance to be committed to a Committee of the Whole House."4 The basis for the practice that 'constitutional bills' are invariably taken in CWH appears to be the changes made at the outset of the Attlee Government immediately after Labour's huge victory in the 1945 election, proposed by the Government, considered by a Procedure Committee and approved by the House.5 In these changes, the norm became that all public bills were sent 'upstairs' to standing committee for their committee stage, subject to a number of exceptions, notably 'bills of first class constitutional importance'. However, as with any apparent Parliamentary procedural 'precedent' for a particular 'convention'6 or practice, the context in which it arose or was created needs to be examined for its relevance to contemporary circumstances. This note examines these issues by considering the meaning of 'constitutional bill' (especially 'bill of first class constitutional importance'); the Commons committee stage of public bills, especially those said to be of a 'constitutional' nature, and the current debate over this issue. 1 As Leader of the House, in evidence to the Procedure Committee, 18.9.45, HC 9 of 1945-46, p.22, Q198 2 HC Deb vol 996 c.750, 12.1.81 3 HC Deb vol 294 c6, 7.5.97 4 21st ed., p.479 5 This is examined in more detail in section III of this Paper 6 On the meaning of 'convention' in its constitutional context, see Research Paper 96/82, The constitution: principles and development, 18.7.96, section IVA 5 Research Paper 97/53 II 'Constitutional bills': some problems of definition A. 'constitutional' bills As the UK does not have a written constitution, there exists no legally definable class of 'constitutional' legislation, although the term is often used in the context of its Parliamentary legislative process. Strictly speaking, there is no such thing in our law as a hierarchy of primary legislation,7 and definitions of classes such as 'constitutional' will arise in their own particular contexts. Some issues, and their legislation, (local government is a common example) may be described as 'constitutional', for example, by critics of such legislation as a way of opposing its provisions. Some issues may be 'constitutional' in a narrow sense, without being regarded necessarily, in a political sense, as major or controversial . This may include matters such as Parliamentary pensions legislation or amendments to the various Ombudsman schemes. Many measures will be an examination of the indexes or lists of statutes in, say, the 'constitutional law' volume of a legal encyclopedia such as Halsbury's Laws, Halsbury's Statutes or the Stair Encyclopedia provides a flavour of the range of potential subjects that can be described as 'constitutional'.8 Generally speaking, constitutional issues include those relating to the powers and structure of the state (borders, form of government, head of state); the system of government of the country (Parliament, executive and judiciary), elections, civil rights and liberties, immigration/nationality, international and supranational relations (especially EU affairs) and so on. Not all of these (eg civil liberties, local government, 'routine' international treaties) would necessarily always be regarded as 'core' constitutional issues. Any proposed legislation relating to the basic existence of the United Kingdom as a political and geographical entity (eg Northern Ireland or devolution legislation); the structure, operation and powers of Parliament and the Crown (in its political, official and monarchical contexts; elections and the franchise; emergency powers; innovations such as referendums or bills of rights), and major issues of foreign affairs (eg EU treaties) would generally be regarded as prima facie constitutional matters. Debate arose in 1945, in the particular context not only of post-war reconstruction but of the new Labour Government's substantial nationalisation programme, on the question of whether major economic measures could be regarded as 'constitutional'. Something of a similar argument was roused from the Opposition front bench during Business Questions on 15 May 7 On this, and possible Union and EU exceptions, see Research Paper 96/82 8 Even then, many other statutes will be listed separately in volumes dealing with, say, Parliament or, elections. In Appendix A of the Constitution Unit's 1996 report Delivering constitutional reform, there is a list of 'constitutional legislation' in this century. 6 Research Paper 97/53 when Alastair Goodlad appeared to regard a Bill on the Bank of England as 'constitutional'.9 However the Leader of the House, Ann Taylor, did not accept all the 'Bills mentioned by Mr Goodlad were constitutional'.10 An interesting example of the definitional controversies that can arise, especially in the context of committee stage, is the British Nationality Bill 1980-81:11 Mr. Alexander W. Lyon (York): Will the Mr. St. John-Stevas: I do not think that the Leader of the House reconsider his judgment that Nationality Bill is a constitutional Bill in the the Committee stage of the Nationality Bill should normally accepted sense of the word, which is a not be taken on the Floor of the House? Contrary Bill concerned with the machinery of Government. to his view that this is not a constitutional Bill, It is the Government's intention that the Bill should does he not recognise that this will be the first time be sent upstairs.