Legislative Scrutiny on Constitutional Grounds in the United Kingdom Parliament : the Contribution of Constitutional Committees to (Political?) Responsibility for the Constitution

Grez Hidalgo, Pablo Salvador and Tierney, Stephen and Welikala, Asanga (2020) Legislative Scrutiny on Constitutional Grounds in the United Kingdom Parliament : the Contribution of Constitutional Committees to (Political?) Responsibility for the Constitution. PhD thesis, University of Edinburgh. (https://doi.org/10.7488/ERA/514)

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Abstract

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 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.

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