The process of constitutional change

Lord Norton

When the Constitution Committee of the House of Lords was created in 2001 – I was the first chairman – one of the the first reports we did was on the process of constitutional change. The Committee returned to the subject this year and has just published The Process of Constitutional Change, noting in effect that the situation has not improved in the course of the decade.   As the Committee says (para. 35) ‘There has been an inconsistent approach to the process of constitutional change.  Whilst particular processes may be employed in relation to some proposals, they have been entirely absent in others’.   It then goes on to observe that there appears to be no consistent rationale as to the use or otherwise of such mechanisms.

In the report, we make a number of – we think practical – recommendations for ensuring that the process is more consistent, with measures of constitutional significance being recognised as such and subject to a sustained process of scrutiny (Green/White Papers, pre- and post-legislative scrutiny) with ministers making statements covering the process, including how the Bill has been considered within Government.   We are keen to achieve a cultural change within Whitehall, ensuring Government recognises that Government works within an established constitutional framework and must not treat the constitution as something that can be changed at will.   Achieving that also requires vigilance on the part of Parliament.

18 comments for “The process of constitutional change

  1. MilesJSD
    20/07/2011 at 2:07 am

    How is our (‘The’) Constitution kept smack up-to-date with on the one hand the State-of-the-Planet’s Resources and on the other hand the Needs-of-Our-Civilisation/Nation ?

    I mean, if it takes 100 years before the Constitution can be changed by Democratic Public Referendum, how on Earth can we ever expect to Be Prepared ?

  2. Gareth Howell
    20/07/2011 at 7:48 am

    I have wondered for some time, proably as long as you have been running the committee since 2001, precisely the meaning of “process”. Well Well well!

    Looking at the definition it seems to me that a little basic higher mathematics is helpful(the meaning of “process” and “procedure” is different, told by merely substituting one word for the other in the description).

    If you say that legislation requires a “process”, you are also saying that constitutional change requires a second “process”.

    This a differentiation. In fact, put in plain English, legislation is differentiation and
    constitutional legislation is double differentiation.

    So if legislation is differentiated as 5xtothepowerof4, constitutional legislation
    would be differentiated again as 4xtothepowerof3.

    Since differentiation, and integration are two of the most powerful tools in modern mathematics,and science, there is every reason why it should also be applied to a complex legislative procedure, which you describe as process.

    Process is a procedure of procedures.

    The same considerations might be applied to “reform” with it value judgements.
    That it is an integration, but that argument may fall on stony ground for now.

  3. Gareth Howell
    20/07/2011 at 8:18 am

    Furthermore you have not simplified this mathematical analogy or explanation by using the term constitutional “change” instead of “reform”.

    This might suggest that the term “change” refers to the “infinitely small changes” that
    calculus deals with.

    Viewing then the plethora of reform over the last few years, it may seem that the whole purpose of process is to prevent any more big changes from being effected.

    Those on the political left would say that 300 years was a long time to wait, and that double differentiation, of this sort, is not atom science, but certainly hair splitting in a phenomenal way!

  4. Gareth Howell
    20/07/2011 at 8:53 am

    Democratic Audit warned that this creates:
    “an obvious danger that there will not be sufficiently broad ownership of
    the constitutional settlement, and that an individual party or coalition of
    parties will be able to skew the process of constitutional change to serve
    their own interests.”

    Of course a procedure of procedures would be exactly like the accountants “underlying Figures” just about the only skill the accountant possesses.

    Howarth then mentions the treasury as part of
    diffuse (inconsistency) yet the treasury uses
    any number of Mathematical models which have been tried and tested over many decades.

    How would it be if the “owners” of the process refused to part with the master model?!!!

    Now there is democracy for you!

    Ethics play such a large part in determining what is or is not constitutional, in legislation day by day,that having a mathematical model based on small change(!) would be quite impossible.

    This committee and its deliberations is
    small beer as well as small change, but not unpleasant to look at the froth, like so many of their Lordships’ deliberations.

    Still, would you not be a member of a good club for its conversation and pleasanterie, or would you be like Groucho Marx??

    Thanks to Lord Norton for the link.

  5. MilesJSD
    20/07/2011 at 9:41 am

    (@ Gareth)
    Neither have you nor, I ween, any other, clearly stated “in which direction” or “for how much better or how much worse”,
    when using terms such as “change”.

    (e.g. “Climate Change” – which in truth should be called “Climate Worsening”, shouldn’t it ?)

    0943AM JSDM

  6. ladytizzy
    20/07/2011 at 11:22 pm

    I am most keen on seeing new proposals for pre- and post-legislative scrutiny. Can you confirm that this should include changes made by Statutory Instrument and, yes, by those pesky Codes of Practice etc.

  7. MilesJSD
    22/07/2011 at 8:40 am

    The Summary of your reference does not specifically include a full democratic participation by The People & by Any-Individual-British-Citizen;

    nor does it give clear sense and meaning, e.g. the timeframes, formats and methodologies to be applied under each of the bulleted points following under
    “We regard it as essential that,
    prior to the introduction of a bill which provides significant constitutional change,
    the government:

    (i) consider (existing arrangements),
    (ii) scrutinise the proposals (In Cabinet),
    (iii) consult widely,
    (iv) publish green and white papers, and
    (v) subject the bill to pre-legislative scrutiny.
    The Summary goes on, but ‘cloaks’ a centrally sharp-pointed lethal-instrument, in saying

    these processes in this report,

    as well as


    the desirability of public engagement and building consensus.”
    “We also stress the importance of not rushing parliamentary scrutiny of legislation once introduced into Parliament

    and of conducting comprehensive post-legislation scrutiny of significant constitutional legislation once passed.”

    “The processes which we recommend are intended to form a

    comprehensive package

    from which the government should not depart only in in exceptional circumstances and where there are clearly justifiable reasons for so doing.”
    A “citizen’s question” has to be submitted (notified upwards to the Very Top). instantiating a situation which is being reported by the World’s best experts as being of High Urgency and Importance (and therefore should surely be an “exceptional circumstance…”), namely

    The over-consumption, destruction, and extinction of our Earth’s Lifesupports at the present rate of Two (2) Earths-worth, and by 2050 of Three (3) Earths-worth (of previously thought Renewable resources as well as of Non-renewable resources)
    This same citizen’s supplementary question might well be
    “Would over-consumption, in the form of multiple-human-livings taken-by/given-to any individual-human-being,
    from the Public-Purse
    – a Legislated and therefore Constitutionally permitted and supported Habitual-Conduct probably-derivative from the Over-Consumption of Earth-Lifesupports above –
    also be quickly classifiable as “an exceptional circumstance” ?

  8. Gareth Howell
    23/07/2011 at 8:40 am

    I now understand (I had previously only mused for a moment or two, probably about the people who used the term!)precisely where the expression “Due process of Law” comes from;
    from the noble Lord Norton’s committee since 2001!

    I really don’t agree with any principle of a procedure of procedures. It is just another example of the elitism of many, in the House of Lords, an exclusive procedure to decide on what kind of procedure will be used!

    Way out!

  9. Twm
    23/07/2011 at 9:13 am

    Whilst particular processes may be employed in relation to some proposals, they have been entirely absent in others’. It then goes on to observe that there appears to be no consistent rationale as to the use or otherwise of such mechanisms.

    The value that the intellectual discipline of higher mathematics provides, problem solving of quadratic equations, and Calculus, is indubitable.

    If Lord Norton is saying that this is due to there being no “processes” available to apply, I would say it is rather that politics is not usually about higher mathematics or the excellent skills acquired there from.

    The human brain is said to have increased in
    power, and dimensions over the last three hundred years, since Cartesian co-ordinates were first set down by its originator, along with first techniques of microscopy and scientific learning, “the infinitely small”,
    but to suggest that the human brain is therefore capable of creating a LEGAL procedure to deal with all procedures, is just banale.

    It is a political scientist trying to pretend that politics is a science, without knowing anything about the effect of a training in complex problem solving, especially the numerous applications of Calculus ,on the power of the human brain.

    If a dictionary of shorthand of all the definitions of political “science”, as they are, for example, in statistics,were created, then a start might be made.

    If political science were a discipline in Mechanics then the notation of mechanics might be applied, but until that infinitely remote time arrives, the “work” of the committee is ridiculous.

    Lord Falconer, a man with a highly trained
    brain, made short work of the procedure, and got on with it.

    The procedure of constitutional change is about the intellectual skills of those doing the changing of a non-scientific discipline, not about an abstract format for change.

    Lord Norton has spent a long time flying the kite of “process”, a mythical and romantic term, which should be consigned to the dust carts of the back alley of parliament, along with the string attached.

  10. Lord Norton
    Lord Norton
    23/07/2011 at 11:35 am

    Garerth Howell/Twm: You take up rather a lot of space saying something that completely misses the point. We are not talking solely about the procedure for the consideration of Bills by Parliament but the processes adopted by Government in proposing changes to our constitutional arrangements. You appear to have no grasp of the key point about that status of the constitution qua constitution.

  11. Twm O'r Nant
    23/07/2011 at 4:42 pm

    I’ll leave it at that for the moment.
    I don’t think I do miss the point at all, just a different way of saying *ol*ocks!

    ( and that may say goldilocks but never mind!

  12. Gareth Howell
    24/07/2011 at 12:02 pm

    I shall ignore Lord Norton’s remarks, mainly due to the non publication of my short reply.

    I refer him to the exemplary and entirely democratic development of w3 organisation since 1991. He and his committee have a lot to learn from such a worldwide organisation.

    I do too, but I am also wise to the requirements and trickery of exclusive political creeds, such as he seems to espouse.

    Global and International Law will have its democratic way, whilst Lord Norton will bury his head in the sand of anti-democratic procedures.

    You appear to have no grasp of the key point about that status of the constitution qua constitution.

    I certainly have a clear understanding of the
    capacity of constitution as constitution or the capacity of constitution by virtue of being constitution, but does the noble lord have any comprehension at all, of the power for example of the XML mathematical language
    still being developed for the delivery worldwide of complex mathematical notation.
    It has also been very useful in its early stages for electronic communication, of High Arabic, being right to left, bottom to top, and at its finest with characters on five levels?

    If he did, I would be convinced of his skills.

    Perhaps he will start with the Semantics which he obviously considers to be his own very fine peculiarity!

  13. Gareth Howell
    24/07/2011 at 1:44 pm

    My one problem with knowledge is not the lack of it, for a single moment but how to remember
    the best search engine terms to recall the that knowledge.

    The synapses of the brain of man may in due course become adjusted to search engine technology so that it is instinct to find the knowledge in exactly the same way as a London Taxi driver.

    Mine was brought up on Dewey, but the modern search engine is rather different. Knowing how to distinguish useful knowledge for the purpose you have in mind is an art in itself.

    The classification/Systematics phylogeny/phylogenetics/ cladistics of it are a very distinct Science, but that can not be said of the procedures of a small part of the taxonomy of law.

  14. Gareth Howell
    25/07/2011 at 9:01 am

    Thus, a court might cite “the constitution” in forbidding an exercise of power, even though no document actually exists

    A constitution can not be changed at will if there isn’t one, contrary to Lord Norton’s remarks above:

    …. established constitutional framework and must not treat the constitution as something that can be changed at will.

    I entirely understand the “checks and balances” that are an effective substitute for a Constitution in British life and in one or two other countries.

    I certainly prefer a method of applying meaning to a theoretically non-existent constitution, than applying many different meanings to one which is cast in the stone of literary history!

    I have read through the report and I say again that developing a “process” or procedure of procedures, to constitutional law is not a way to proceed.

    Looking through the various current constitutional theories I find the new “Constitutional economics” and the Russian school associated with it, as an attractive idea, if embryonic.

    If government and its secretaries are well aware, by the tradition of their departments, and by historical tradition, what the unwritten constitution is, then procedure is a natural day to day matter.

    Pushing the idea of “process” as a refinement
    of procedures, and which may be the exclusive knowledge or function of lawyers, is surely not conducive to good government using the non-existent written constitution, to which
    Lord Norton refers.

    A procedure and/or unwritten constitution which evolved from natural law, may be what emerged from the joust violence of the first Earl of England, William Marshall, but things have probably moved on from there. Natural Law can be helpful in every day modern life.

    The procedures of the scientific community, those for example of the worldwide web, are tried and tested, and can only be effective ones. More over the procedures of the International space station developers HAVE to be accurate.

    Whilst the science may be experimental, the procedures to deal with the experimentalism are cast again in stone.

    If they are not, disaster occurs.

    I do not accept that ” A cultural change in Whitehall” is needed, except to analyse the potential of new ideas such as the constitutional economics of the Russians.

  15. Twm O'r Nant
    26/07/2011 at 5:12 pm

    All the main department,committees of the HofC have important work to do.
    I’ve met,or talked, or dined with a good many
    permanent heads of those government departments over the years.

    They work for the government, whichever party/ies it is/they are. Cultural changes may occur as a consequence.

    I made a slightly impolite remark to the conversation with regard to the value of the committee of which the noble lord was first chair, (we do take a pride in our babies!)
    Sorry about that!

    There are some interesting constitutions about. Thank you for the less than polite replies which gave me an enjoyable sunday morning following the wiki links.

    W3 evolving constitutions are most interesting ,and the lack of control of the
    URL “en.” which gave Jimmy Wales his big start with Wikipedia is another. Wikileaks is another aspect of that internet licence.

    I was tempted to look up SHAPE and its parenthood to NATO, and then decided it was only the military secrecy of the two organisations which may be interesting and not their constitutions at all, which are fairly straight forward.

    The (EU)European Union must be a constant, even enjoyable,concern to proceduralists,
    but the lack or otherwise of a UK constitution is surely a very long way from the urgent file of those who seek to deal with what is “important” in British political life!

  16. maude elwes
    04/08/2011 at 5:18 pm

    This blog gets more interesting every day. Is it because there is recess?

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