Considered in Grand Committee
My Lords, I am very pleased to open this debate on the Constitution Committee’s report, The Process of Constitutional Change, which we published last July. The purpose of the inquiry was to explore the way in which changes to the UK constitution are brought about, and whether we could recommend improvements. The timing of the inquiry was prompted by the coalition Government’s action in introducing several substantial constitutional Bills in their first year in office. As noble Lords will be aware, the Government have also announced further plans for constitutional change, notably reform of your Lordships’ House.
Our report was based on written submissions that we received and on oral evidence from a number of eminent experts. These experts were mostly academics but we also heard from the Deputy Prime Minister, Nick Clegg, the author of many of the coalition proposals, and from two former MPs, Tony Wright and David Howarth, who have wide knowledge and experience in this field. I should like to place on record my thanks to all who gave evidence and, in particular, to the committee’s two legal advisers, Professor Adam Tompkins and Professor Rick Rawlings, who acted as specialist advisers for this inquiry, and to our Clerk, Emily Baldock.
The committee’s overall recommendation is that, in contrast with existing practice, the United Kingdom needs to adopt a clear and consistent process to make Governments accountable for the constitutional changes that they introduce. As your Lordships will appreciate, the process of constitutional change matters because the constitution, even when it is unwritten, is the foundation on which our laws and government are built. Currently there is little to prevent Governments with a majority in the other place changing the UK’s constitutional arrangements as they please. The constitution is therefore vulnerable to the political agendas of successive Governments but any Government should be subject to the constitution, not the other way around.
In the Select Committee’s opinion, all proposed changes should be tested against an agreed and rigorous process, which would prevent Ministers picking and choosing which processes to apply in different political circumstances. We argue that constitutional legislation is qualitatively different from other legislation and should therefore be treated differently.
It should be noted that, although our inquiry was, as I said, prompted by our response to several contemporary Bills, our criticisms of existing process are certainly not exclusively directed at the current Government. The record of the past will show that the Constitution Committee has been concerned about constitutional legislation since it was first established a decade ago. As the Grand Committee will remember, the Constitution Committee was often robustly critical of changes made by the previous Administration. I believe that the noble Lord, Lord Norton of Louth, who is a very long-serving member of the committee, will speak about its persistent and consistent efforts in this direction since 2001.
This year, as a first step, we set about trying to define those pieces of legislation that could legitimately be called constitutional and should therefore be subject to a special process. However, we were not tempted to consider that this could be done in a watertight way only if the UK moved towards a written constitution. Equally, we did not accept the suggestions, which came from several academic witnesses, that Parliament should outsource constitutional matters to an independent commission, which could then decide whether any constitutional proposals were acceptable.
However, the committee found it useful to try to identify positively those areas where any change was properly described as both constitutional and substantial. Professor Sir John Baker of the University of Cambridge offered us a list, which the committee found useful. The list included: any alteration to structure and composition of Parliament; any alteration to powers of Parliament or any transfer of power, as by devolution or international treaty, which would in practice be difficult to reverse; any alternation to the succession to the Crown, or the functions of the monarch; any substantial alteration to the balance of power between Parliament and government; any substantial alteration to the balance of power between central government and local authorities; and any substantial alteration to the liberties of the subject, including the right to habeas corpus and trial by jury.
Clearly, this is not an exhaustive list, but the Committee thought that it certainly included those significant constitutional matters, where a clear and consistent process should be adopted by all Governments. In essence, our main recommendation was quite limited. We asked that the Government, before introducing such a new Bill into Parliament, should set out in a Written Ministerial Statement whether that Bill provides for significant constitutional change and, if so, whether it has been subject to certain prelegislative processes, both of consultation and prelegislative scrutiny.
In our view, any constitutional Bill should be preceded first by some form of public engagement. There should be rigorous scrutiny in Cabinet committees, particularly considering the impact of proposals on the existing constitutional arrangements, which in our opinion are sometimes not taken into consideration. The Government should publish both Green and White Papers to be followed by a formal public consultation and prelegislative scrutiny. At the end of such a process, there is no doubt that there may well still be disagreement with the policy of a particular Bill, and we did not recommend, as has sometimes been suggested, that a consensus must be reached before a Bill could be introduced. But at least, if the process that we described had been followed, everyone would have been afforded an opportunity to have their say and genuinely influence the outcome. The only mandatory element of these proposals would be the production of the Written Ministerial Statement.
The Government’s response to our report was published in September and, in parliamentary language, I have to describe it as disappointing. The Government do not appear to accept that constitutional Bills can be readily identified and should have particular treatment. The Committee thought that even on the basis that “you know one when you see one”, it is perfectly possible to single out a constitutional Bill for a special process. The Government’s response to the main recommendation was that they,
“will consider whether to accept the principle of it”.
This afternoon, I urge the Minister to go further than consideration and accept that principle and thus agree to introduce Written Ministerial Statements, one hopes from the beginning of the next Session. This in itself would go a long way to remove the practice of ad hoc decision-making in this fundamental area.
The recommendations that we made for a specific prelegislative process were queried in the Government’s response and are obviously the subject for debate and refinement. The question of what the committee’s report calls public engagement is always difficult in a representative democracy. In this instance, we use the phrase to cover forms of engagement that take place at an early stage in policy-making. We distinguished it from referendums on specific policy questions and from public consultation on individual detailed proposals. We heard, for example, about a fascinating model for engagement used in British Columbia, in Canada, where citizens from all over the province were randomly selected and then met over the course of a year to determine which type of electoral system should be put to the people in a referendum. The committee found this model attractive and were clear that it was important to try to actively engage citizens and involve them in significant constitutional change. But we did not find that any one form of such engagement could, or should, be mandatory. For example, a model that worked for consideration of the electoral system might not be appropriate to determine how best to protect habeas corpus. But this did not mean that the committee wanted the Government to ignore the possibility of public engagement in consultation, and if our proposal for a mandatory ministerial statement on constitutional Bills were to be adopted, the Government would have to justify explicitly the reasons why they did not undertake such procedures.
Some noble Lords have already told me that they felt that the committee’s report was somewhat unimaginative and downplayed the value of consultation. This was certainly not our intention, but we were concerned to learn from several witnesses that too often, today, public consultations are seen merely as box ticking. We wanted to find a way in which we could agree that some form of sensible consultation could be undertaken. It would be obviously of enormous value if noble Lords who are concerned could today offer solutions which might have wide application.
Finally, I want to say a brief word about the Cabinet committee system, which we considered imperative in this process. We felt it imperative that proposals for significant constitutional change be subjected to rigorous scrutiny in Cabinet committees, partly because of their potential impact across all government departments and partly because the committee system is an essential part of ministerial responsibility. Again, somewhat disappointingly, the Government responded that collective responsibility meant that internal Cabinet discussions could not be publicly revealed. Yet the committee was not asking for publication, simply that the ministerial statement formally record that proper Cabinet committees had taken place. Surely, that could not be considered a breach of official security.
In conclusion, I once again draw your Lordships’ attention to our inquiry’s most important finding: that there is no accepted current process for constitutional change. It simply does not exist. We therefore recommend the future adoption of a clear and consistent process, intended to form a comprehensive package from which the Government could depart only in exceptional circumstances and where there are clearly justifiable reasons for doing so. We did not think that this needed cumbersome or inhibiting legislation, as only the proposal for a Written Ministerial Statement on constitutional Bills would be a statutory requirement. We thought our recommendations were practical and achievable, and I hope that the Minister is able to provide your Lordships today with a more positive response than the Government’s formal response in the autumn. I look forward to the debate and I beg to move.
My Lords, it is my privilege to follow our chairman in this debate. First, we had a very efficient chairman who made us all work hard—no sleeping at all. In the end, she produced a very interesting report. I also thank the legal advisers and the clerk for all the work that they did. I am rather sorry that I am speaking number two, because I am going to be a bit difficult on this issue. I have obviously read the reply from the Government. I think that our ideas were certainly well thought out and sensible, but there were moments when they were perhaps a little over the top. Paragraph 104 says:
“We consider that comprehensive post-legislative scrutiny should be a requirement for all significant constitutional legislation. Each minister should set out the government’s plans for such scrutiny in their written statement”.
The actual chances of getting any such word from a Minister are very small, because they are generally far too busy and will stay that way. However, it was well thought out, even if a bit over the top.
I am impressed by the Government’s response, which is sensible and has made me think again. I would particularly like to quote the beginning of paragraph 4, on page 5 of that response:
“The Committee suggests that although Governments should continue to have the right to initiate constitutional change, this needs to be tempered by a realisation that constitutional legislation is qualitatively different from other legislation”.
The Government then say, absolutely plainly:
“The Government does not accept this. Constitutional legislation, like all legislation, varies in its importance, complexity and impact”.
The response then goes on to expand on that. That point by the Government needs a certain amount of serious consideration. Paragraph 101 of our report is about referendums. It states:
“This Committee recently examined the use of referendums in the United Kingdom and concluded that whilst there were ‘significant drawbacks’ to their use ‘they are most appropriately used in relation to fundamental constitutional issues’”.
That is an important point, because obviously one sees at the moment the likelihood of the Government going more and more to referendums in order to get a decision about a different matter.
Let us think for a moment about what is happening in the eurozone. We have Merkel and Sarkozy, as the newspapers say, out to save the euro. They are saying quite definitely that that will require a new treaty that will “recast Europe”. Those are some of the big words used. As we all know, there are pivotal talks tomorrow. Let us assume that there is a new treaty. If we then decide that we can accept this treaty, is that constitutional legislation? It would certainly have the effect of constitutional legislation. The Government would obviously put the matter before Parliament.
If Parliament were to reject what the Government were putting before it, there is no chance then that the treaty would be changed. It would go ahead. The Government would probably have a referendum and, as with the referendums on voting, it would be on the question, “Do we accept the treaty or not?”. Again, if that is decided against where would we go? We would then withdraw from the treaty and many people would think that that was a great mistake. We now have to consider the possibility of joining in what is obviously an important subject like a new treaty and how we would deal with that in this country.
I will take this one step further before I stop talking. No doubt the internet will become more and more popular and government will sooner or later use the internet to get answers to referendums. They could ask for an answer on the internet, to be sent by post or whatever. Again, one sees a change in the constitutional legislation in that Members of Parliament voting in Westminster will become less and less important. Does that mean that there is no longer a legislative process in Westminster to which we would all feel bound?
This issue is complicated, but it is looking ahead and it is well worth thinking about that in the committee this afternoon and in what we do in the future. We need to think about whether constitutional legislation requires a legislative process in Westminster or whether we would have at times to see a move towards constitutional decisions that had not gone through the Westminster Parliament. That is serious question for the future.
My Lords, I congratulate my noble friend Lady Jay and the committee on yet another very interesting report that the whole House would do well to read. I was not surprised that the noble Lord described my noble friend as an efficient chairman. Having worked with her in government, I am sure that she was. I hope she takes that as a compliment.
The fact that so many people want to speak in this very short debate today shows just how important constitutional change is at this time. There is a great deal happening that we have not always fully taken on board. Certainly, we have not always taken on board the potential interrelationships between some of the changes that are being proposed. We have had mention of the Bills that have become Acts of Parliament; there is promise of more reform in the future; and we have the potential for what might happen so far as devolution and a referendum on independence are concerned. If we are going to have such significant changes, perhaps both Houses in this Parliament need to spend a little more time thinking carefully about their consequences. That is assuming that the Government intend to go ahead with further constitutional change at a time when there does not seem to be great public appetite for it given all the other problems of economic challenge that we are facing.
There are many interesting features in the report—the noble Lord, Lord Renton, mentioned some. He drew attention to paragraph 104, which advocates post-legislative scrutiny for constitutional matters. I am very much in favour of post-legislative scrutiny. When I established the Modernisation Committee in another place in 1997, we wanted to get more momentum on prelegislative scrutiny, but I was always disappointed that we were not able to do more on post-legislative scrutiny. When it comes to constitutional change, post-legislative scrutiny might be necessary, but it is a bit late by then. My great concern is that enough thought does not go into the early stages, which is what this report focuses on.
There is, as my noble friend Lady Jay, said, one fundamental difference around the nature and significance of constitutional change. Is legislation on the constitution fundamentally different from other types of legislation? The Government indicate that that is not the case; I for my part believe that it very much is. I can recall from my time as a constituency MP—others will have had this experience—many occasions when legislation being passed through both Houses proved difficult or not up to the mark. The Child Support Agency is a very obvious example. Members of Parliament knew from constituency casework that it was going wrong from day 1. After lots of attempts and changes, we were able to put it right. It was not perfect, but we made it workable. But if constitutional change goes wrong, and if it has unintended consequences, which can very often be the case, how do we fix our democracy and how do we get it back when the damage is done? That emphasises the need for proper preparation.
I think that we could all agree that we are at a time when trust in politicians and political parties, which are essential to choice in a political democracy, is low, and that is for a variety of reasons. My fear is that the nature of the constitutional change that has gone through this Parliament already, and some that is proposed, will militate against improving the situation. For example, fixed-term Parliaments could lead to a crisis if the public felt that a Government should be voted down but, for technical reasons and the way in which that Bill was passed, that could not happen. I believe that problems will arise from the constant turmoil of boundary reviews if these are going to take place every five years—it is difficult enough for many people to know who their Member of Parliament is and identify with them at the moment. I think that many Members at the other end have realised rather late in the day some of the internal consequences of constant boundary reviews. If electoral wards are going to be changed every five years, that will not help the level of trust but, more important and perhaps more obvious than that, it will impact on the work of MPs. If the day after you are elected you have to concentrate on getting reselected for a potential new boundary constituency, you may be spending too much time looking over your shoulder at party or local matters rather than spending your time at Westminster, and it will turn Members of Parliament into constant rivals. It is bad enough when it happens once every 15 years, but if it is going to happen every Parliament, it will be extremely difficult. I speak as someone who has gone through boundary reviews and some of those difficulties. If we are going to have senators with a 15-year mandate, I am not sure where public trust comes in there, especially as we see that at the moment there is very little identification of individual constituents with Members of the European Parliament. You are going to have PR and party establishments are going to decide who is a senator without an Appointments Commission, and I do not think that is going to improve trust.
I think the Government need to learn from this committee’s report, otherwise we will be in danger of constitutional turmoil. I think there are real difficulties and real dangers that people will turn off from politics even further. We have seen an alarming situation develop in some European countries recently where being an elected politician disqualifies you from being part of the Government. That is because of a lack of trust between politicians and the electorate. I think that the Government need to look at this report more carefully. I noted how polite my noble friend was in her description. I was going to say that the ministerial response was complacency with a touch of arrogance, but I hope there is still time, and I urge Ministers not to put this report on the shelf but to be aware of the problems of unintended consequences and the potential turmoil of all the changes being talked about at the present time.
I begin by expressing my admiration for the report of the Constitution Committee. I believe that, in quite a short compass, it defines many of the current problems of our legislative process for dealing with constitutional issues and suggests a system that I think has a great deal of merit. I really hope that the Government will reconsider because, to put it as kindly as I can, I regard their response to this committee’s report as deeply disappointing.
In the past, I, with Robin Cook, engaged in a process of consultation with parties, government and the public about how to implement constitutional reform, and what I drew from that experience was the importance of proper deliberation and of seeking agreement across as broad a spectrum of politics as possible. The committee was right to say that constitutional reform could not possibly be based on consensus, but the widest agreement is very desirable. I thought that the Government’s suggestion in their response that legislation for constitutional reform is no different from other legislation was misconceived. In the first place, it is not a measure of relative importance in the eyes of the public that distinguishes, say, the health Bill currently before Parliament from a Bill to determine how frequently parliamentary boundaries will be changed. Different people will have very different views about that. It is important to recognise that public trust in our democracy depends upon our constitutional arrangements, and we should not take them as a lesser matter. When countries are suffering economic difficulties—and there are very acute difficulties at the moment—the tendency is not to feel confidence in the political system that has brought them to that place. It is very important that people have confidence in the decision-making process, the checks and balances, how leaders emerge, how they represent the public and how they can be got at by the public. Consequently, I very much agreed with the general evidence given by Professor Sir Jeffrey Jowell to the committee that,
“the constitution provides the rules of the game, the framework for all official decisions. If these decisions are to be accepted as legitimate, even though you may not agree with them, then the framework of decision-making must command respect and general acquiescence”.
The process that has been described by the committee is one that would make it more likely that acquiescence and respect are obtained for these measures of constitutional change.
I would contrast the measures that were introduced at the beginning of the Labour Government in 1997—including freedom of information; an initial step towards reform of this House; devolution—with the measures that were brought before Parliament at the very end of the last Labour Government, which had not been subject, with the exception of the Civil Service proposals, to any kind of extensive reform and were causing quite a considerable degree of difference between different groups which are interested in the subject.
It does appear to me that the committee has given us serious suggestions as to how the prelegislative process should be conducted. All the steps—seven steps are recommended in this process, including a post-legislative review—are indispensable if we are to evoke the trust of the public. I am concerned that this short and dismissive response will confine this report to the archives. I do not believe that that would be a satisfactory outcome. I hope that the Constitution Committee will consider whether some of these matters might be put, with the agreement of the House, to the various committees that consider procedure, including the Liaison Committee. The incoherence of our constitutional reform is beginning to become not just a sign of flexibility, but something that baffles the public; it does not operate to bring about more sensible changes in the way we reach our governmental decisions.
I hope that this will not be end of the debate and that there will be a systematic series of suggestions put forward for the House to deliberate upon.
My Lords, I begin by paying tribute to our excellent chairman and to our very able legal advisers. Almost every week the Constitution Committee, of which I am a member, examines a Bill which is about to have its Second Reading in the House of Lords. All too often, it is not a happy experience. Our job is to draw to the attention of the House matters of constitutional importance. Again and again, we find the important and frequently repeated recommendations of the committee made in past reports, and similar recommendations made by committees of the House of Commons about such matters as the use of Henry VIII clauses, have been ignored.
All too often, it is also apparent that, quite apart from the constitutional issues, the legislation has been badly drafted or brought forward in a form likely to ensure that its progress will be disruptive and time-consuming. I used to serve on the legislation committee of the Cabinet chaired by Lord Whitelaw. He would never have allowed much of this badly prepared legislation to go forward and I am surprised that the Government's business managers are not equally firm. It would save them much trouble. Unfortunately, the shortcomings have been particularly apparent in some of the most important constitutional Bills, of which the Public Bodies Bill was a particularly bad example.
Against that background, I found the Government's response to our report so disappointing, unlike my noble friend Lord Renton of Mount Harry, who I felt for a moment was being over-influenced by his previous experience as government Chief Whip. Ministers in a new Administration, many without previous ministerial experience and anxious to proceed with measures that they considered important, may perhaps be forgiven for initial mistakes, even if mistakes caused the Government serious legislative difficulties, but I would have hoped that they would have learnt lessons and been anxious to avoid repeating their misjudgments.
In their response to the committee’s report, the Government start by attempting to undermine our main conclusions by a serious misrepresentation of its contents. The introduction section of the response states,
“The Government notes that the Committee does not offer a definition of ‘constitutional’”.
Yet describing current practice on the very next page we are told that:
“It is recognised practice for government bills of ‘first-class’ constitutional importance to be committed to a Committee of the Whole House in the House of Commons”.
Definition then clearly is possible in such a manner as to be the basis for recognised practice.
In our report, after addressing in paragraph 10 the difficulties of definition and quoting from the definition offered in the committee’s first report of 10 years ago, which has provided the solid foundation for our work ever since, we offered pretty clear guidance including a list provided by Sir John Baker which,
“provides, in our view, a useful guide to the principal measures which would fall under the rubric of significant constitutional change”.
We suggested that the desire to act quickly as a new Government is not an adequate justification for bypassing a proper constitutional process. The Government's response is that the proper constitutional process is the legislative process and that there was a genuine need for early action. But a great deal of evidence that we received as a committee—and we base our reports on evidence received—showed just why the normal legislative process is not adequate for important constitutional measures. The whole purpose of our proposals was to place some constraints on any Government introducing significant changes, particularly if they are doing so in a hurry.
As the noble Baroness, Lady Jay, observed, there is at present very little to restrain a Government with a substantial majority in the House of Commons. In the case of the measures introduced so urgently by the present Government, they were not underwritten by manifesto commitments endorsed by the verdict of the electorate; they were the outcome of the deal cobbled together over the few days needed to create the coalition. In such a situation, a Government are fully entitled to come forward with measures, but the requirement for proper process to be followed is particularly important. As part of that process, the recommendation in paragraph 9 of our report about ministerial statements to accompany a Bill on its introduction into each House is of fundamental importance. I welcome the fact that the Government will consider whether to accept the principle of that recommendation, together with a similar recommendation made by the Leader of the House on working practice. However, I must say that the Explanatory Notes that accompany a Bill are not an adequate substitute and will not have the effect that we are seeking.
The Deputy Prime Minister in evidence to the committee quoted in paragraph 54 gave cogent reasons for the Government placing an emphasis on,
“greater accountability in the manner in which we conduct ourselves and the way in which politics is conducted, greater legitimacy in the political institutions that seek to represent people; and breaking up excessive concentrations of power and secrecy”.
It is curious in light of that statement that considering the way in which the Cabinet committee system works when dealing with important constitutional change, we are told that the process by which such agreements are reached,
“is a matter for the Government, not for Parliament”.
After a period during which the Cabinet committee system that I knew in government largely lapsed, and during which, to take one example, the Prime Minister set out to abolish the historic office of Lord Chancellor without Cabinet discussion; and when we now have the proper conduct of business set out in the Cabinet manual, it is not just a matter for the Government. Parliament has a very legitimate interest, particularly in the case of constitutional legislation.
The Government say that the fact that a Bill could be considered constitutional in nature does not of itself mean that it should be a priority for pre-legislative scrutiny. I say that it should indeed be a priority, but that if there are justifiable reasons for not undertaking such scrutiny, that needs to be explained and justified.
Under the heading “The role of the Constitution Committee”, in paragraph 108, for very good reasons, we recommended that when introducing a Bill for significant constitutional change into the House of Lords, there should be a minimum of three weekends between First and Second Reading. The Government reject our recommendation, completely ignoring the important role of the Constitution Committee and its ability to perform effectively the duties that it has been given by the House. If the committee’s advisers are expected to give Bills proper scrutiny and the committee is to carry out its work within an interval of two weeks, not three, surely the Government should be capable of responding between the Second Reading and the beginning of the Committee stage. The two months they demand and often take at present is far too long.
The final conclusion of the response seems to me negative, superficial and inadequate, like so much of the work done by the present Administration in the preparation of their legislative programme. Constitutional change is far too important in its consequences to everyone for Parliament to allow it to be hurried through on the whim of Ministers and without proper consideration and procedural rules. I would add as a supporter of this Government that it would be enormously to their advantage if Ministers were to try to learn from experience and past mistakes, and to consider with much greater care than they have done so far the recommendations of important parliamentary committees and the advice of their friends about the better handling of parliamentary business generally.
My Lords, I agree with almost everything that the noble Lord, Lord Crickhowell, has said. I follow other noble Lords in welcoming this report. Once again, this committee has performed an invaluable service by producing a report that is thorough, wise and timely, too, in view of the energetic way in which this Government have been pursuing constitutional reform, though not always fruitfully. I share the hope expressed by other noble Lords today that the Government will rethink their response. I speak as someone who was a Minister in the last Government responsible for constitutional reform. The Government are in grave danger of repeating the mistakes that we made in government.
In light of the general welcome given to this report and to all the committee’s reports, I hope that it will not be considered sacrilegious if I spend a few minutes taking issue with it. I want to take issue with only a limited section of the report, but it is precisely because it is so limited that I take issue. Only six paragraphs out of 105 in the report are devoted to public engagement. The committee rightly stresses the importance of process in constitutional change, but one of the main reasons, if not the main reason, that it is so important, is that proper process is most likely to secure the public consent to change that in turn is most likely to ensure that it endures. That is crucial with constitutional change. Surely in the light of this, the issue of public engagement deserves a little more scrutiny than the 6 per cent of this report that is devoted to it. The committee spends rather longer on the question of consultation, although its focus seems to be primarily on the established institutions of power, primarily in Westminster rather than the general public. It offers sensible and balanced views, in my view, on Green Papers and White Papers and prelegislative scrutiny, but is more or less silent on how consultation with the public should be carried out more widely, with whom exactly and for how long, and how that should influence public policy, and where such consultation fits in our system of representative democracy. Yet these are all crucial questions, in my view. It is not as if there are no other models available for the committee to scrutinise, but it mentions only one—from Canada—and that is almost in passing.
There is an uncharacteristic lack of rigour in the perfunctory conclusion that the committee reaches that,
“no one model … should be adopted for all proposed changes. Nor is public engagement at this stage of the process always a necessary requirement. However, if not undertaken, the government should be able to justify their decision not to conduct a public engagement exercise”.
It would have been helpful to future Governments embarking on constitutional change if the committee could have given a few more reasons for this conclusion. It would have been even more helpful if they had attempted to explore different models and when it might be appropriate to use them.
Of course, it is difficult to reach definitive conclusions about the best mechanisms, and I agree with what my noble friend Lady Jay rightly said on this. As she also pointed out, there is a risk of public engagement degenerating into little more than a box-ticking exercise. But those difficulties and risks should not be used as an excuse for not exploring further this important issue. For more than a decade, every Minister bringing forward constitutional legislation—and I was one among many—has remarked on the state of our democracy. My noble friend Lady Taylor made some very important points about this today. There has been a well documented decline of trust in politicians, increasing disengagement from the formal democratic process, with disadvantaged groups and younger people increasingly unlikely to vote at elections. We have seen the weakening of old, collectivist structures and historic social identities and the rise of a professional political class. It has all served to undermine engagement with the party politics on which our system of representative democracy depends. How to re-engage the public in democratic politics is a huge challenge facing everyone, both Houses of Parliament. Nowhere is that more important than in the process of constitutional change that addresses the wiring of our democracy, which is why, as other noble Lords have pointed out, it is not like other legislation.
As my noble friend Lady Jay pointed out, it is not easy to see how best to do this without compromising our system of representative democracy, which we should continue to cherish. The difficulties can be seen, for example, in the entanglements that the other place is getting itself into in dealing with petitions. Representative democracy is precious, and we should never cease reminding ourselves if that, in the current climate, because it allows for the fairest distribution of power among all citizens, offers space for scrutiny and deliberation on complex issues and does so continually as such issues arise, which makes for better policy. It fosters the articulation of the needs and aspirations of the inarticulate and protects the interests of minorities, all of which are hallmarks of a decent and civilised society. Representative democracy should not be replaced or threatened, but that does not mean that it cannot be adapted to new circumstances.
Referendums can have their place in this. The arguments for and against their use have been well set out in an excellent previous report by this committee, but referendums are not the only way of increasing democratic engagement. As I have said, I would have hoped that the committee would have spent a bit more time exploring this issue in its report. It had a starting point in a policy paper called A National Framework for Greater Citizen Engagement, which was published over two years ago by the then Government and which explored the use of mechanisms such as citizens summits as well as referendums. That paper set out proposals for when national policy formulation could benefit from greater public participation and, in the view of that paper, those circumstances included significant constitutional change.
I have set out previously my view that any new mechanisms to re-engage people with democratic processes and improve policy formulation will succeed only if they fulfil five conditions. Briefly, they are: first, they must register with the public, which means that they must be regular and pervasive; secondly, they must be credible and people must believe that they matter— I will cease there.
Sitting suspended for a Division in the House.
My Lords, before more important things interrupted, I was just reaching my conclusion. I hope that the Committee will look at ways to engage the public on this very important issue. I set out, as a starting point, five crucial criteria which, in my view, any new mechanism for engaging with the public must fulfil.
First, the mechanisms must register with the public. In other words, they must be regular and pervasive. Secondly, the mechanisms must be credible. People have got to believe that they matter and are not a box-ticking exercise. They should be open and transparent; participants must be aware in advance of the status of the consultation and what it can achieve; there must be a shared understanding of when and how these mechanisms will be used—the committee is absolutely right to have drawn attention to that in this report; and government must not engage consultation just for the sake of it, with no discernible outcome.
Thirdly, engagement mechanisms must be systemic; otherwise people could all too easily regard them as a version of a tactical device. Deliberative assemblies such as citizens’ senates should represent, in my view, a permanent change to the process of policy development. Fourthly, they should be as representative and accessible as possible, involving a broad spread of the population, not just the usual suspects. Finally, such new mechanisms must also, and always, be consistent with the primacy of representative democracy. They should never replace parliamentary consideration of issues. They should always feed into them.
These propositions are just one starting point for what I hope will be a new and characteristically magisterial report by this committee on how best to engage the public in the process of constitutional change. The issue deserves nothing less than such a report to follow the one in front of us today—a report which, despite my criticisms, has made an important contribution to the debate over the future of our constitution, for which we all owe the committee our thanks.
My Lords, as a relatively new member of this Select Committee, I found it to be an interesting inquiry. We produced a useful report and I greatly admire the skill with which the noble Baroness, Lady Jay, steered us through our deliberations. For some people, the report would make entertaining reading about some of the key features of our uncodified constitution—of which some, perhaps, are unaware. The report highlights what some would consider to be significant flaws in our constitution. The committee itself did not favour that which I have always favoured: a written constitution. When I asked the Deputy Prime Minister giving evidence to the committee about this long-standing Liberal Democrat policy, he made it plain that the coalition Government have no intention of introducing one. One of the many benefits of a written constitution would be that it would contain within it a prescribed mechanism for constitutional change. I therefore listened to members of the committee and found it somewhat ironic that so many were genuinely keen to see significant procedures followed if there was to be any constitutional change, but not keen to see what the constitution actually is, or how to change it, written down in a codified manner.
The report elucidates what I think is a key problem with our constitutional arrangements at paragraph 23, stating:
“Aside from the limited power of the House of Lords under the Parliament Acts to delay or reject legislation, there is no formal system of checks and balances by which the integrity of the UK constitution can be safeguarded and protected. Thus there is little to constrain the ability of a government which commands a majority in the House of Commons to get its way”.
That is the fundamental problem with which we were concerned in this inquiry. Attention was drawn to this problem by the astute political commentator Andrew Rawnsley, in Servants of the People, his study of Labour’s first term after 1997. In that book he said:
“Within his own universe, no democratic leader is potentially more powerful than a British Prime Minister with a reliable parliamentary majority and an obedient Cabinet”.
On re-reading our committee’s report, I felt even more strongly than I did at the time that its central recommendation—that a clear process be followed when constitutional change is proposed—would have a much more limited effect on executive power than proper, codified constitutional arrangements would. However, short of such a constitution, it is welcome that a written ministerial statement of this kind should be proposed.
In the mean time, I will of course continue to argue for more far-reaching changes than such a statement to address the problems of excessive power that the committee outlined in paragraph 23. First, I would still argue that the most effective curb on excessive executive power is for the Executive not to have a majority, as is the case in the House of Lords and as would normally be the case if we had a more representative system for elections to the House of Commons. Secondly, I would point out that the introduction of a stronger check and balance on the dominance of the Executive would come from a democratic second Chamber, which would be emboldened more regularly to say no to the Executive.
At the outset of our deliberations on all these issues, the committee benefited greatly from the membership of some of the former Ministers responsible for a very good period of constitutional change—or constitutional reform as you may wish to define it—between 1997 and 1999. As my noble friend Lord Maclennan of Rogart said earlier, this period’s success could be demonstrated by the way in which we were able, relatively rapidly, to reach agreement through both Houses of Parliament on devolution to Scotland and Wales, the introduction of proportional representation for the European elections, freedom of information legislation and the incorporation of the European Convention on Human Rights into British law. However, the basis of achieving such rapid progress in the first two years of a Government was that two parties were able to co-operate in opposition over a significant period, and with independent academic expertise advising us.
I pay tribute to my noble friend Lord Maclennan of Rogart and say how much we miss the late Robin Cook. Between the two of them, they successfully chaired that committee in the autumn of 1996 and early 1997. I was privileged to be its joint secretary and it did a great deal of good in advancing the process of constitutional change.
The committee also had a concern, set out in paragraphs 27 to 29, about the lack of an overarching programme of reform with coherent values running through it. The committee was generally more critical of the first year or two of this Government than it was of that period in 1997 and 1998. I share the committee’s concern about some of the process of constitutional change since the general election and was happy to endorse the report’s criticism. However, I also fear that in some senses there could have been more of a public backlash against a very overarching programme. The problem is that if you had a more clearly explained overarching programme, which belonged simply to one party, some people might consider it to be an overreaching programme. If a Government then tried to act more rapidly than has perhaps been the case—in a big-bang, too-big-too-fast way—there would be public opposition to such a programme of change. I do not agree with the noble Lord, Lord Wills, about public engagement but, following his remarks, a safeguard against any one party in a future Government making changes too rapidly and in an ill thought-out way would be to have more consistent public engagement.
Reformers of the constitution have long talked about different forms of constitutional convention that could be established, involving different parts of civic society—perhaps a cross-section of Parliament and randomly selected members of the public. Indeed, the Scottish Constitutional Convention gave us a very good model of how different parties, people not involved with parties at all, the church and religious organisations et cetera could get involved in suggesting a way forward so that, when a Government are minded to act, there is a blueprint for how to proceed. If we are to have an overarching programme, it may well be that such a convention would have to be its genesis to prevent the same sort of controversy attaching to it as has perhaps been attached to the opening years of this Government’s constitutional reform programme.
My Lords, I declare an interest as a member of the committee but, in addition, as its first chair. In that capacity, I was responsible for the committee’s fourth report of 2001-02, entitled Changing the Constitution: the Process of Constitutional Change.
The noble Baroness, Lady Jay, has detailed the committee's report and I do not propose to repeat what she has said. Like others, I shall focus on the Government's response. If the response had been submitted by a student, I would have failed it. It is built on a false premise and appears to have been written by someone who has not read the report, nor for that matter read the committee’s earlier report.
The constitution creates the framework within which we are governed. As such, it stands above, rather than alongside, public policy that is enacted within the process created by it. It should be recognised as creating the framework within which government governs rather than as a tool of government. The point was well made in evidence to the committee by Sir John Baker, professor of law at Cambridge University, who wrote:
“One of my main concerns is that it seems to have become assumed over the last few years that constitutional change is a never-ending continuous process, and even more alarmingly that it is a process which (for want of any other system) belongs to the government of the day to manage. This has never been the case in the past, and it is not the case in any other civilised country which comes to mind … A constitution should be thought about as a whole, it should command general support, and it should be more or less fixed, with the possibility of alteration only rarely and by special procedures”.
The Government’s response fails completely to grasp the position of the constitution as being above government, but rather views measures designed to change our constitution as being on a par with other legislation. The legislative process may be the same for every Act—that is the starting point of the response—but to state that is to miss completely the significance and indeed status of the constitution.
Indeed, the Government’s response marks something of a reversal of the position taken by the previous Government. That Government had no intellectually coherent approach to constitutional change—a point I argued frequently—and, as we contended in our report in 2002, they needed to develop not only a culture of constitutional appreciation but also a more integrated approach to change. However, having said that, the noble and learned Lord, Lord Irvine of Lairg, as Lord Chancellor, recognised the significance of legislation affecting our constitutional arrangements. This he demonstrated in a clear flowchart that he submitted to the Constitution Committee as part of its initial inquiry. The Government’s response to this report appears to mark a step back even from that.
Paragraph 2 of the Government's response states that,
“constitutional change is no different from any other public policy”.
This takes us beyond process to substance and reflects the failure to understand the unique position of the constitution. Measures designed to change the basic framework of our constitution are of a qualitatively different kind from ordinary legislation. It is imperative that the Government grasp this essential point.
The response goes on—my noble friend Lord Crickhowell has already quoted this—to assert:
“The Government notes that the Committee does not offer a definition of ‘constitutional’”.
Yes, it does. We provide, as we did in our very first report in 2001, a working definition of a constitution—it is in paragraph 10 of the present report—and we go on, at paragraph 11, to identify what constitutes significant “constitutional” legislation.
At paragraph 20, the Government’s response takes the committee's observation that there is no watertight definition of significant constitutional legislation as a reason for their reluctance to see special processes for handling such legislation. That does not follow at all. There may not be a precise dividing line, but it is usually fairly clear from the evidence presented to the committee what is and what is not significant constitutional legislation. The very fact that one can discern the difference underpins the very existence of the Constitution Committee. The committee adopts the two Ps test in assessing legislation—does it affect a principal part of the constitution and does it raise an issue of principle which has not given rise to difficulties?
Indeed, the Government must have their own test for deciding what is constitutionally significant in order to fulfil their statutory responsibilities. Section 3 of the Legislative and Regulatory Reform Act 2006 prohibits Ministers from making a provision removing or reducing regulatory burdens unless the provision,
“is not of constitutional significance”.
Perhaps my noble friend in reply can tell us what definition the Government employ in determining what is constitutionally significant and how that relates to the Government's response.
For reasons of time, I will not go into detail on the remaining paragraphs of the Government's response. In any event, I do not need to, because what follows derives from the unforgivable failure to grasp the overarching position of the constitution and the consequences for the process of lawmaking that is derived from that status. I suggest that my noble friend considers withdrawing the response and producing a considered reply that is actually grounded in an understanding of our constitutional arrangements.
My Lords, it is a great pleasure to follow the noble Lord, Lord Norton of Louth. I welcome the report so ably introduced by my noble friend Lady Jay of Paddington.
I start with what the noble Lord, Lord Norton, said about the Legislative and Regulatory Reform Bill 2006. I recall that when the Bill was before your Lordships' House, it introduced a schedule of constitutionally significant Acts by way of saying that these are the Acts that shall not be amended lightly. I have always thought that that was a good device. The committee has difficulty in saying what the content of our constitution is. I offer Members of this Committee the following mental experiment. Suppose a country wanted to join the United Kingdom. What is the acquis britannique that it would have to abide by? That is in the constitution.
Suppose that Ireland, for obvious reasons, wanted to come back into the United Kingdom. What would we say that Ireland had to abide by? What would be the corpus of legislation? That is in the constitution. It is not unwritten at all. It is written down and available. The only sense that it is unwritten is that it is easy to amend.
We are now engaged in an exercise that says an unwritten constitution may be easy to amend. We may have a Crown in Parliament as sovereign and by that we now mean the House of Commons is sovereign and the Executive are even more sovereign than before. So it would be very easy for the Executive to do whatever they like. How can we introduce speed breakers in certain pieces of legislation to stop the Executive from getting away with whatever they get away with?
The noble Lord, Lord Crickhowell, has already referred to this great experiment in which my Government, because it could not sack the Lord Chancellor, tried to abolish the office itself in the course of an afternoon. Not only did they not consult anybody but nobody told the Government that it could not be done without proper legislation. I remember being in the Chamber and the noble Earl, Lord Onslow, was beside himself with rage at what had happened. He had the House adjourned and insisted that the Leader of the House come to explain what had happened. Of course, the Government had to find a new pair of tights to fit my noble and learned friend Lord Falconer because they did not realise that if he had not presided over the next day’s proceedings the House of Lords would not have been able to function.
This is the degree to which the Executive have got so above themselves—the executives of all parties. They do not even bother to find out what the constitution is and whether it can be amended. We have to welcome this report because it says you can and should make a distinction between legislation that is of constitutional significance and that which is not. Although none of this is watertight—that is the nature of the case—it is still a distinction worth making for two reasons. First, let us be quite sure that there is a corpus of legislation that should not lightly be amended, and secondly, if you are going to introduce something new, you want to know whether it is going to be of constitutional significance. Right now, we have not got a watertight criterion for judging a priori before a Bill arrives so that we can say to the Government that we consider it to be of constitutional significance. The Parliamentary Voting System and Constituencies Bill was an interesting example. It is probably one of the most profound changes we have made to the way the House of Commons is elected, but it was not thought to be a constitutional Bill. Obviously, the Government care only about timetabling legislation in the House of Commons and very little else, so they are reluctant to call a Bill a constitutional Bill because the Committee stage would have to be taken on the Floor of the House of Commons, and that is expensive in terms of time. However, that should not be the only reason why Governments decide that things are not of constitutional significance. The PVSC Bill was a very important Bill, and in the House of Lords we tried, much to the annoyance of the Government, to prolong the discussion through various amendments, and I think we were right to do so. It was a pity that it was not given the importance it should have been given. That is definitely worth saying.
The Government might think of having a Joint Committee of both Houses of Parliament, perhaps a Joint Select Committee on the constitution, for Bills that they think are of constitutional significance or of having a standing committee that receives all Bills. If the committee declares beforehand that it thinks a Bill is of constitutional significance, it is up to the Executive to give cogent reasons why they disagree with the committee and then face the music. I think that sooner or later we will need a much more organised system for making constitutional change than we have at present.
Finally, I am looking forward to a reformed House of Lords. If the House of Lords is elected, that will be another speed break on the Executive, whatever majority they have in the House of Commons. I hope that the House of Lords increases its legitimacy and puts a stop to the way Executives carry on. It is about time we had properly behaved Executives in this country.
My Lords, this is a most interesting report and the debate has lived up to its billing as one to watch, but let me start with a note of regret that the committee considered naming its inquiry “The Process of Constitutional Reform” and then, overcautiously in my view, abandoned the noun “reform” for the noun “change”. It says that “reform” was somehow inappropriate as it implied a subjective position—to change things for the better—and therefore it stuck to more neutral language, “change” being merely to make or become different. This is far too timid an aspiration for a committee of such distinction and influence, and my vote would certainly have been for reform.
On the substance of the report, there is a desire to place some constraints on the flexibility of the constitutional arrangements currently available. The danger of partisanship, whereby the Government of the day may wish to change constitutional aspects to their own advantage, is recognised, and the report recommends, rightly in my view, that constitutional legislation needs to be treated differently from other public policy. I agree wholeheartedly that there should be no surprises in the introduction of constitutional legislation, but this does not automatically take me down the committee’s preferred route of pre-legislative scrutiny as norm. I shall take an example from recent practice to illustrate my point.
On the Parliamentary Voting System and Constituencies Bill, it was very well known that both parties in the coalition considered the size of the Commons to be too large and had said so in their election manifestos—in the case of the Liberal Democrats, in several election manifestos. The public were aware of these positions, so it was not entirely unexpected as a proposal. Moreover, if it were to be implemented for the next election, its timescale was tight due to the re-drawing of boundaries, hence not allowing for pre-legislative scrutiny.
The Fixed-term Parliaments Bill was unexpected in so far as it had not been a longstanding Conservative ambition to fix parliamentary terms, as had been the case for my party. However, the exigencies of coalition government led to a situation whereby, to provide certainty in a more fluid situation than previously experienced, the Government decided to bring in this legislation.
Now, ideally, a Government moving to this kind of change—less unusual in reality than we might think, as several Governments in recent history have gone to a full five years—should have gone through consultation with a Green Paper, a White Paper, a draft Bill and then the actual Bill. The process would undoubtedly have taken at least an additional year and, in my view, as this was a political decision, was better settled sooner to lend predictability to public policy.
It was indeed political and there was no constitutional reason for it to be introduced. It would be quite sufficient for the Prime Minister to say that he would not advise the Sovereign to dissolve until May 2015. You only need the Bill if you do not trust the Prime Minister.
That is a well rehearsed point, I know, from the noble Lord, Lord Norton of Louth. My rebuttal to him at the time that we had this discussion in Committee was that all public policy can be construed as political; we nevertheless go through a process of giving it substance through law and deliberation prior to it becoming law. That was why it was quite right for it to go through Parliament. There is a philosophical imperative in respect of this public policy measure not just to have it for a single Parliament but to have it as good practice enshrined as a constitutional convention. That was the basis on which we introduced it.
I could not resist the noble Baroness’s invitation to intervene on her. I want to make two points. First, on the point of the parliamentary Bill and the boundaries, it is of course quite right that both partners in the coalition had expressed their intention to reduce the size of the House of Commons. However, they had very different numbers, which have crucial implications for the outcome. Therefore, it is completely proper, as the committee said, that this should have been open to all sorts of prelegislative scrutiny. Secondly, the point the noble Baroness made about the Fixed-term Parliaments Bill proves the point that the committee was arguing: that Bill was precisely in the interests of the Executive, and it is the need to fetter the Executive that a lot of the measures put forward by this report are aimed at.
If the noble Lord were to read what the report says on the Fixed-term Parliaments Bill, he will see that there were contested opinions as to whether it amounted to better governance or merely the Executive overriding to their advantage.
The important examples of the need for proper constitutional process do not necessarily lie in this Parliament but in previous Parliaments; for example, the change to the role of the Lord Chancellor in 2008—noble Lords have referred to it already—or, as the committee mentions, the handling of the Constitutional Reform and Governance Bill in the closing stages of the previous Parliament, which ran a full five-year term, and where the previous Government, with eight years of power till 2005, should have introduced their Bills in the early part of the previous Parliament rather than leaving it to the wash-up. The Prevention of Terrorism Act 2005, which had significant implications for habeas corpus, was not subject to prelegislative scrutiny and, in my view, it should have been. There are some Bills that require flexibility and, as long as justifications are provided for deviation from good practice, we should take each Bill as it comes.
Let me turn to public engagement, which is emphasised in the report. It is, of course, right that in constitutional matters, more than in any other area, there should be at least a minimum awareness in the country of what is proposed and, preferably, meaningful consultation on the merits of the proposals. The nub of the problem lies in what threshold we apply. Noble Lords will be aware of the new e-petition system whereby 100,000 votes on a Downing Street petition can trigger a discussion in Parliament on public policy. As we have seen from the anti-European Union debate recently, a mere debate publicises an issue but does not lead to changes and therefore can disappoint. Consultation that leads people to think that they have a say without it being reflected in substance just makes the electorate more cynical. Another factor is the appropriateness of public engagement. The e-petition system calls forth rather esoteric and special interest issues, and I will give the Committee a flavour of them. Recent petitions include: Convicted London rioters should loose all benefits; Fight for BAE Systems Jobs; and Protect Police Pensions. Some of these may be areas where a debate might be sufficient to deal with them, but the people who have signed the petitions would wish the Government to take action. So, yes, there should be public consultation, but it should be meaningful.
Let me go to the most controversial recommendation. I beg the indulgence of the Committee in going on for a minute or two extra since I have lost some time. The report proposes that legislation should be accompanied by a ministerial statement and provides a comprehensive list of what should be covered in that statement. It further asks the Minister to justify why the Government might agree or disagree with the responses given. The Minister would also be required to set out the extent to which rigour was applied in Cabinet committee. It stops short of asking for a justification of Cabinet decisions, but that is not far off. This perhaps goes too far, and the Government’s response—that they will consider these matters further—is the right one. In today's age of spin, we cannot expect that the internal deliberations of policy within government would not be subject to speculation about who said what, when and for what motive. That would not increase confidence in the Government but would, in fact, decrease it. Having read the multitude of diaries that appeared within months of the previous Government's departure, I come from the perspective that those of us outside are better off not knowing how carelessly or, indeed, controversially serious decisions are made. I suspect that there is at least one member of the committee who would rather that his advice to Cabinet had not been the matter of such intense speculation in the aftermath of the Iraq war.
There are several good things in the report, which have been mentioned by noble Lords, on First Reading and Second Reading timescales and so on. I wholeheartedly agree with them. On the whole, the report is excellent, and while I share some disappointment about the Government’s response, I look forward to the summing up by the Minister. In the words of the noble Lord, Lord Desai, I look forward to hearing him face the music.
My Lords, just over 51 years ago in the other place, the constitutional historian turned politician, Sir Kenneth Pickthorn, declared that,
“procedure is all the Constitution the poor Briton has”.—[Official Report, Commons, 8/2/60; col. 70.]
Sir Kenneth would have been wiser to have said “almost all the Constitution the poor Briton has”, but there was none the less a profound truth in his words. Over the ensuing half-century, Pickthorn’s constitutional dictum has been substantially and cumulatively modified by a steady flow of statutes and codes, especially over the past 25 years, yet the value and specialness of this report from your Lordships’ Select Committee on the Constitution is the way it bridges Pickthorn’s time and our own, for it reminds us in a powerful and timely fashion of just how vital good and consistently applied procedure is to the health of our everyday constitutional practices and the methods and timetables we use or should use when fashioning new constitutional instruments for the country.
Such questions, I regret to say, rarely excite the electorate. For most people, the workings of the constitution are far from compelling as a spectator sport when lawyer speaks unto academic and footnotes duel between historians and political scientists, but procedure matters, whatever the political weathermakers that drive such considerations away from the electorate’s immediate preoccupations.
In the 1870s, the best ever observer of our national governing ways, Walter Bagehot, declared that,
“our system, though curious and peculiar, may be worked safely; but if we wish so to work it, we must study it”.
Walter Bagehot was writing there of the money markets in his classic work, Lombard Street. How true it remains for the money markets—but it also happens to apply to the workings of the British constitution.
I particularly welcome the committee’s recommendation that Ministers henceforth should prepare what one might call “constitutional impact statements” whenever Parliament is presented with a measure containing a stiff dose of constitutional change lurking in its clauses. The norm ought to be that such Bills should nestle between prelegislative and post-legislative scrutiny, although I noted what the noble Baroness, Lady Taylor, said about the implicit futility of post-legislative scrutiny when a huge Bill has gone through.
Parliament must be the central player, in all its variable geometries on the Floors and in the committees. It should be its own permanent Royal Commission on the constitution. If Parliament is not to be the thinker about as well as the prime arbiter of constitutional measures, it will suffer from what the great Ernest Bevin called a “poverty of aspiration”.
I am not a written constitution man. Part of the constitutional flexibility that we prize comes from our possessing a Gilbert and Sullivan, wandering minstrel-style constitution, a thing of shreds and patches—a mix of custom and practice, precedent, code and statute. I declare an interest as a historian by profession. I naturally prefer what is known in the trade as a historic constitution. But the force of the report before us today is that it cuts with a historical grain. It also has the lesser, if noteworthy, benefit of not having any public expenditure implications that I can see. Virtue is rarely cost free, and we should seize it, cherish it and implement it when we find it.
There may be a problem—indeed, there is—in determining which measures deserve the appellation of a substantial constitutional Bill. Could they be certified as such, like money Bills, and who would so certify them? Governments cannot be the agents for this, because of the extra parliamentary time involved. There is always a certain meanness of spirit within a Cabinet’s future legislation committee and among the business managers on that front. Might the Select Committees have a role here, as the noble Lord, Lord Desai, suggested? But those difficulties are dwarfed by the duty of care that Parliament has when it comes to altering our constitutional practices or designing new ones. The duty of care is especially demanding in the United Kingdom, because of the degree to which our constitution is still unwritten. It has never been better put than by Mr Gladstone when he said that the British constitution,
“presumes more boldly than any other the good sense and good faith of those who work it”.
Notice that verb “work”, again. Far be it from me to sub-edit the grand old man, but he might with benefit have added, “and good procedure, too”.
This report is both Bagehotian and Gladstonian in its philosophy, and I congratulate its framers. I really wish that I could congratulate the Government on their response. I am glad that in their reply to the report they undertook to consider the desirability of a special ministerial statement on the impact of constitutional Bills, but as a whole the coalition’s reply was jaded and underwhelming. It was as if the bumping and grinding of all those huge constitutional Bills that they have sent us has depressed their appetite for still more constitutional change, even of the sensible and procedural kind proposed by the Select Committee. The Government’s response to the report that we have before us was as dreary as it was weary; its mood music was a long, withdrawing sigh. I hope that the Minister will bring a touch of pep and a dash of optimism when he replies to our debate today.
My Lords, it is a pleasure to follow the noble Lord, Lord Hennessy of Nympsfield. I begin by thanking and congratulating the noble Baroness, Lady Jay, on the quality of the excellent report and on the wonderful and very articulate way in which she introduced it. I do not want to talk about the details of the report, most of which I welcome. But those of us who are sympathetic to the report find the Government's response deeply disappointing—something which, if submitted by an undergraduate, my good and noble friend Lord Norton would fail. If one looks at the Government’s response very closely, one gets the same feeling: that if this report were submitted by an undergraduate, the Government would fail it. The question to ask is, therefore: why is it that two sets of highly intelligent people disagree so profoundly on a matter of such great importance? Whenever that happens, it is always good to step back and ask oneself the following question: what is the deep disagreement about?
In this case, the deep disagreement is about the nature of the constitution and the constitutional change. The committee takes a particular view of the centrality of the constitution to the life of a political community, and believes that the constitution occupies an autonomous space and is “qualitatively different” from issues relating to policy and ordinary legislation. The Government make the opposite presumption that the constitution, certainly in a country such as ours, is not terribly different from ordinary forms of legislation and policy, and that the division between Bills should be made on the basis not of whether they are constitutional, but rather on how controversial they are and what kind of impact they will have upon society.
As somebody who has spent his life teaching the philosophy of constitutions, I thought I would step back a little and look at the nature of the role that the constitution plays in the life of a society and why, in our country, for the past 200 years there has always been a deep tension between two different views about the nature of the constitution. Those two views are articulated and reflected in the debate in which we are engaged.
The constitution does three things. First, it is obviously concerned with procedures, as the noble Lord, Lord Hennessy, said, but not just with them. It is also concerned with fundamental rights and liberties which are not just matters of procedures. The constitution constitutes a community. In other words, it is concerned with the procedures, principles and institutions which make it the kind of community it is and define its political identity. Secondly, these principles and procedures enjoy broad-based consensus and command the allegiance of ordinary citizens. Citizens may disagree deeply about a lot of things, but they are agreed on one thing: “These are the fundamentals to which we are committed, and therefore however much we disagree on partisan lines on other things, this country belongs to us because it is based on principles to which we subscribe”.
Thirdly, these principles and procedures enjoy a privileged status and may not be altered in the same way that other arrangements might be. Their alteration is reflected in some constitutions by requiring a supermajority—in other words, numerical majority is not enough—but that is not necessary. The privileged status of constitutional principles and conventions is recognised in the fact that they should be changed self-consciously, in full recognition of their importance, and after most careful parliamentary scrutiny and public debate. This is very easy to see when a constitution is written, because the constitution is clearly marked off from the rest of society. It occupies an autonomous space of its own; people know when the constitution is being debated and when something else is being debated.
When a constitution is unwritten, such as is the case with ours, there are several dangers. Constitutional changes are not clearly marked off from other changes and there is therefore always a temptation to make changes stealthily and not to bring them out into the open in debate, or to make them unself-consciously. In the same way that we seem to have acquired the empire absent-mindedly, we seem to be doing lots of things absent-mindedly in this country. In other words, in the case of an unwritten constitution, there is always a danger of blurring the most central qualitative distinction between constitutional matters and ordinary matters. Because this distinction is not recognised in an unwritten constitution, it fails to perform the function of a constitution and, therefore, virtually ceases to be a constitution.
At the heart of the unwritten constitution is a paradox. Precisely because it is unwritten, it is in danger of blurring the distinction between constitutional and non-constitutional changes, and therefore of undermining the constitution itself. I suggest that this is what has tended to happen in Britain over the past few years, particularly under the coalition Government: it is not right in principle and it creates practical problems. The Select Committee is absolutely right to highlight this central fact. Once we recognise that, all the changes that it proposes automatically follow, bar the practical consequences of a referendum and other things, with which one might disagree. However, by and large, all the Select Committee’s recommendations are underpinned by this central assumption.
It is precisely this that the Government’s response fails to recognise. They do not see the specificity and the distinctive nature of the constitution. While the Select Committee stresses the vital distinction between constitutionally significant changes and ordinary changes, the Government want to divide legislation according to—I could quote half a dozen phrases here—the scale of social impact, the effect on the daily lives of citizens or whether the changes are controversial and arouse considerable political concern. When the committee says that for constitutional Bills there should be a minimum of three weekends between First and Second Reading, the Government say, “Yes, you can have three weekends but not for constitutional Bills. It all depends on the Bill’s impact, complexity and how controversial it is”. In other words, they both recognise the importance of the recommendations but concentrate on different things.
The same difference is evident at almost every level. When the committee says that post-legislative scrutiny is necessary for constitutional Bills, the Government say, “Yes, but not for constitutional Bills—only for those that have a high social impact or are controversial”. That is the crux. In other words, the Select Committee wants to push our unwritten constitution in the direction of having the status of a properly written constitution. You can have an unwritten constitution but it must have the status of a written constitution. On the other hand, the Government want to move in the opposite direction. They do not want the constitution to have the status and sanctity of a constitution, and they therefore reduce important constitutional considerations to ordinary matters.
I suggest that the difference between the two views is profound. It is not just limited to the Select Committee on the one hand and the Government on the other. It lies right at the heart of contemporary British political discourse and the history of British political tradition over the past 200 years. Therefore, if the Select Committee wants to carry the country with it—I hope it will, since it has certainly carried me with it—it needs to do one very important thing. It needs to explain why the qualitative distinction between constitutional and non-constitutional changes is so crucial; and why, if you blur it, you risk, as the noble Lords, Lord Hennessy and Lord Desai, and others have pointed out, politicising fundamentals of our lives and creating a situation where we may have no solid ground on which different political parties can be united.
I very much hope that the Committee will consider something along these lines. Once we do, the next question becomes easily manageable—namely, what is a constitutional change? Many of us who have thought about this can give half a dozen different answers. In the case of our system, it is not very easy but here the committee is not entirely sure of its ground. It uses all kinds of phrases, such as “constitutional change”, “significant constitutional change”, “less significant” and “more significant”. This is not the appropriate vocabulary when talking about a constitution. Either something is constitutional or it is not. If it is constitutional, it is by definition significant. We need to take the next step and show that a constitutional practice can be defined in a straightforward way.
My Lords, I thank my noble friend Lady Jay of Paddington for chairing this committee and producing this report and the members of the committee who took part in the study. Normally, that is a formality, but this report is unusual because it is so profound and important. I have listened to the debate and I will not waste the Committee's time by detailed comment on individual contributions, but by my count, nine or 10 of the 12 noble Lords who have spoken have been broadly sympathetic to the report and not sympathetic to the Government’s point of view.
I place myself clearly in the majority. We are sympathetic to the report and note that there are some caveats—the noble Lords, Lord Wills and Lord Rennard, had ways that they would like to develop the report into a procedure—but the clear concern about constitutional change and how it is managed is something that we share. In saying that, we accept the implicit criticism of some of the things that we did during our Administration in the constitutional field.
This House has an important role in our constitution. In terms of the legislative process and scrutiny of the Government of the day, this House is one of the key operational checks and balances on the constitution, but the House of Lords has a further role,
“a proper role in safeguarding the constitution”.
That last point is a quotation from Professor David Feldman, Rouse Ball Professor of English Law at the University of Cambridge, from the evidence that he gave to the House of Lords Constitution Committee in preparing this excellent report.
Not only do I agree with that view, I suggest that in the content of the report and in putting it forward as a comprehensive package of proposals for an agreed process of constitutional change, this House’s Constitution Committee is precisely carrying out the role of constitutional long-stop in safeguarding the constitution of our country.
Professor Feldman argues for constitutional change not being introduced for partisan reasons. That is a noble aim, but I fear that in the context of modern politics and modern political discourse it is an impractical one. Constitutional change is not high on the list of people's priorities, perhaps especially at times of great economic difficulties. Unlike inflation, jobs, health, crime and education, it is not usually a matter of high public or party-political interest.
However, political parties from time to time seek to change the UK constitution. After a long period of very little constitutional change, when we came in as a Labour Government in 1997—and I thank all noble Lords who referred to this period favourably—we did so with a clear mandate for constitutional change, which we enacted with a programme of constitutional change that Vernon Bogdanor, former professor of government at the University of Oxford, described as a formidable series of measures. That programme included a directly elected Scottish Parliament, a directly elected National Assembly in Wales, a directly elected Assembly in Northern Ireland, directly elected mayors in London and elsewhere, legislation on human rights, freedom of information, the regulation of political parties, reform of the House of Lords and the formation of the Supreme Court—a formidable list indeed. After such a constitutional desert, the country wanted and needed constitutional change, and that is what we as a Labour Government delivered. It was a change led by us as a political party, but it was constitutional change for the whole country.
The current Government are in a very different position. As a coalition formed after a general election and with no specific coalition mandate at all from the electorate, the coalition has tried to proceed with constitutional change very much on a partisan basis. The Parliamentary Voting System and Constituencies Bill earlier this year was a wholly partisan piece of legislation. Labour vigorously opposed it in this House, and we were right to do so.
One part of the Bill on boundary changes was designed to damage the Labour Party, although it is interesting and significant how many Conservative MPs whose seats are threatened by the now published proposed boundary changes are worried and are complaining to their party that, in seeking to hurt Labour, the Act may be a major piece of Tory self-harm. The other part, providing for this year’s referendum on an alternative voting system for the Commons, was again an entirely partisan measure designed to help the other half of the coalition, the Liberal Democrats, for whom a changed voting system had long been a holy grail. A shift to AV would also have greatly benefit benefited them electorally.
Constitutional change brought forward for such partisan reasons may indeed, as that piece of legislation is showing, have unforeseen consequences. However, while the principal purpose of this report is not particularly to limit the partisan nature of some attempts at constitutional reform, it might well have exactly that effect. The principal purpose of the report is to provide an agreed method by which constitutional change is brought about based on the notion that constitutional legislation is indeed, as the report puts it, qualitatively different from other forms of legislation and that the process leading to its introduction should recognise that difference. We on this side of the Committee agree with that view. We are sorry to see that the Government do not, as is indicated by the response to the committee’s report from the Deputy Prime Minister.
That response is a poor piece of work. Essentially, it does no more than say that because no precise definition of constitutional change is offered in the committee’s report, a separate process to deal with constitutional change is inappropriate. The Deputy Prime Minister may not be able to distinguish constitutional measures from other pieces of legislation, but the law certainly can and does. Constitutional law and the study of constitutional law is a long-established and distinguished branch of the law and the legal profession.
AV Dicey, the great constitutional theorist and founding father of constitutional law, in his seminal work on the constitution, An Introduction to the Study of the Law of the Constitution, defined the term “constitutional law”, which he saw as including,
“all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state”.
In defining constitutional law, Dicey managed as long ago as 1885 to do something that, apparently, is beyond the Deputy Prime Minister now. A series of distinguished constitutional lawyers have also done so and the merest glance at the groaning shelves of the constitutional law section of a good legal bookshop show that a good few others have managed it too.
We on these Benches urge the Government to think again on this report and rethink their response. They must come up with something better, even just a little better than this wholly inadequate little shard from the Deputy Prime Minister. That the response from the Government is inadequate is particularly unfortunate because the report it is responding to is particularly good.
These Benches agree that a situation whereby the Government are effectively able to change the constitution at will should be avoided. We agree that the desire of a new Government to act quickly is no justification for bypassing proper constitutional process. We agree that the Government should not seek to pass significant constitutional legislation during the wash-up. We tried it with the Constitutional Reform and Governance Bill, and this House made it clear that we were wrong, and we accept that.
We agree that a number of weaknesses in our current constitution arise from the fact that the UK has no agreed process for significant constitutional change. We need a clear and consistent process for significant constitutional change. When a government Bill proposing significant constitutional change is introduced into either House of Parliament, the Minister responsible for the Bill should make a Written Ministerial Statement meeting the terms proposed by the Constitution Committee in its report before us today. Governments should depart from this comprehensive approach only in exceptional circumstances and where there are clearly justifiable reasons for doing so.
This is a good report from a highly regarded and well respected committee of your Lordships’ House. Rather than denigrating it, as the Government’s response seeks to do, the Government should instead accept it, adopt it and implement it. Constitutional change is important in Britain, and it is important that we get it right. So far this coalition Government have not got it right. We as a Government did not get all our constitutional change right, we acknowledge that, but as I believe is also acknowledged, we put in place a series of constitutional changes which are important, which will last and which were, in a large part, right.
Putting in place a new process for constitutional change, as this report proposes, is a valuable and helpful notion. I urge the Minister in replying to put aside the Government’s sad little formal response and take the opportunity of responding in kind to the excellent proposals made by the House of Lords Constitution Committee.
My Lords, the Government value enormously the work of this Committee in focusing greater attention on the intricacies of our constitutional protections and of the process of constitutional change. We look forward to a continuing dialogue, spilling over, we would hope, into a more informed public debate.
On this occasion, as we have heard, the Committee has found our response disappointing. I am sorry for that. The Government are not persuaded that the recommendations represent an appropriate way of proceeding.
At the heart of our disagreement, as the noble Lord, Lord Parekh, in effect suggested in his speech, is a fundamental difference of view about our current constitutional arrangements in their current unwritten form. As it stands, constitutional legislation has no special status. To provide a special process for deliberating on constitutional legislation, therefore, runs up against the problem of definition, which the committee itself acknowledges, as well as the question of what is significant and not significant.
The Government’s argument, therefore, is that constitutional legislation has to go through an effective, proper, constitutional process. We have parliamentary sovereignty. The legislative process is, therefore, the way to proceed.
I have been sitting here trying to remember what it was that I taught, as a very young university teacher, when I tried to teach the British Constitution. Things have changed a great deal since then, but the question as to what is constitutional has in many ways become a great deal more complicated. I moved on to teach international relations and the European and International dimension is in many ways the most difficult; confusions over British sovereignty and constitutional sovereignty hit us very regularly.
We have had the debate on the EU Bill, which I helped to take through this House—the question of what happens when British sovereignty is infringed. On the other hand, the IMF programme of 1976 fairly clearly infringed British sovereignty. I recall one of the Cross-Benchers some months ago arguing that the placing of British troops under foreign command would be a fundamental invasion of British sovereignty, which would have clear and significant constitutional importance. The Secretary of State for Defence remarked to me the following day that British troops had just been serving under Turkish command in ISAF in Afghanistan and that indeed British troops had first served under foreign command in the First World War. So the question of what we think is of constitutional significance—indeed what we think constitutional sovereignty is as such—is itself deeply contentious.
I got myself into deep trouble two years ago in Jersey for suggesting that the relationship with the Crown Dependencies was a matter of constitutional significance which was open to constitutional change. I was denounced for a week as a French spy and various other things in the Channel Islands press.
The domestic issue of what is constitutional—the relationship between the Executive and the legislature, and between the Government and Parliament—is clearly fundamental, but the question of whether the courts are part of this is something that we rather skirt around. When we said goodbye to the Law Lords, I was fascinated to discover that the move to a Supreme Court had indeed been taken by legislation on a partisan basis by a Gladstonian Government that was in office for only a short time more than a hundred years ago; and that the collapse of that Government and the return of the Conservative Government led to this reform being pushed back for a mere 130 years.
The relationship between central government and local government is not, it seems, a matter of constitutional significance, although we make it so on a regular basis. The relationship between central government and the devolved Administrations has clearly become part of our constitution now. The relationship between the political elite in government and Parliament and the wider public—the disillusioned, even alienated, citizens—is one that, as the noble Lord, Lord Wills, rightly pointed out, we all need to take much more into account. The question of the interrelationship between different changes is, again, one that we stumble over. I have heard several people over the past few weeks suggest that a future referendum on the relationship between the United Kingdom and the EU might provide a result in which those in England had a clear majority in one direction and those in Scotland had a clear majority in the other. That would absolutely have constitutional significance.
The process of constitutional change cannot be apolitical or consensual. It is essentially political; it defines the rules of politics. The idea of non-partisan constitutional reform, which one or two contributions suggested, seems to me to be a chimera. Alfred Venn Dicey, much cited as a neutral constitutional authority, was also rabidly anti-Irish and wrote pamphlets against home rule. Professor Philip Norton, whom I have long regarded as one of the greatest living authorities on the British constitution after only Professor Peter Hennessy—and therefore as authoritative and neutral—is also the noble Lord, Lord Norton, who has very strong and partisan views on House of Lords reform and a number of other constitutional issues. We cannot criticise government proposals as political; of course constitutional reform is political. The question is: how do we handle them and do we need different procedures?
One of the defining principles of the British constitution is its flexibility and that it is based on parliamentary sovereignty. Therefore, constitutional change is made through legislation. The core of the committee’s recommendations was for a special statement to accompany any constitutional Bill to set out the expected overall impact of the legislation. What consideration had been given to the measure before publication? What public engagement had there been? Had there been formal pre-legislative scrutiny? What post-legislative scrutiny was envisaged? The Government’s response indicated that most of the information suggested for publication is already available in the Explanatory Notes that accompany each Bill on publication. It may be that we need to consider further whether the Explanatory Notes might be accompanied by a written ministerial statement, which would be different in form but perhaps not in substance.
There are a number of other comments that one needs to make. I do not think we would wish to go into the details of internal government deliberations. I can assure noble Lords that the Cabinet committee system works extremely well at the moment, partly because this is a coalition Government and we have to negotiate through Cabinet committees. Some of our discussions are extremely sharp. The Cabinet committee system now works much more fully than it did under the previous Government for obvious reasons.
The additional hurdles—parliamentary or wider—that are suggested, will be the subjects of continuing discussion. As the noble Lord, Lord Parekh, suggested, these would be part of a major process of constitutional change. The House of Lords itself is perhaps now the largest backstop to ill-considered or overpartisan constitutional reform being pushed through the Commons. But for the Government to spell out exactly what it means by constitutional change would itself be a change in the fundamental constitutional arrangements. When the Public Bodies Bill is quoted as a constitutional Bill, we are exploring what is the outer fringes of what we regard as constitutional.
The process of post-legislative scrutiny is a matter for Parliament and the Government to determine, and I hope that noble Lords would accept that is a useful piece on which the Government should leave post-legislative scrutiny for Parliament to decide.
A number of noble Lords have quoted the Cook-Maclennan model. I remind noble Lords that I was myself a little involved in that, and so was the noble Lord, Lord Hennessy, as a neutral adviser on all this. Part of the basis for the Cook-Maclennan discussions was the expectation that Labour might not get an overall majority in 1997, so it was in effect part of a necessary preparation for what might have to be a coalition Government. Perhaps that is something that political parties should think about for the future, but it was on that occasion a preparation for something that did not happen. On this occasion, perhaps none of us prepared for something as fully as we should have done, which we had not expected to happen.
There were particular reasons of urgency underlying the decision to introduce the Parliamentary Voting System and Constituencies Bill and the Fixed-term Parliaments Bill without publishing them first in draft. I hope that I have done my best to explain that. In contrast, the process of House of Lords reform has been one on which we have gone through all the stages of consultation—Green Papers, White Papers, committees—that noble Lords could ask for, and I am not sure that it has necessarily built consensus yet or will ensure easy passage for the Bill when it is published. That is, again, of the nature of constitutional change. Building a consensus for a non-partisan constitutional change is something that academics may hope for but politicians may think is perhaps beyond what is acceptable.
The UK is facing a period of continuing constitutional change, because it is going through a period of significant social and economic change and coming to terms with highly significant changes in its international environment and in the relationship between domestic arrangements and its international obligations and constraints. We will therefore continue to need and value the work of this committee and we look forward to a continuing dialogue with the committee.
The Minister referred to facing constitutional change, which rather implies that the Government know what “constitutional” means. As far as I interpret his speech, he seems to be confirming that the Government do not know what a constitution is and that the “two Ps” test, which worked quite well for the Constitution Committee, appears to be beyond the Government.
My Lords, the question of constitutional change is one that we will continue to argue over, and the definition of what is constitutional and is not constitutional is something that evolves through debate and argument in Parliament as well as in academic seminars. Most of us think that we know what is constitutional when we see it, but sometimes we disagree with each other.
The Minister describes how exemplary the Government have been about the House of Lords Reform Bill, although they were was in a great hurry to do the other Bills. Would it be right to conclude that the Government will abide by the rules when that does not bother people in the recent past, but that if it was the past they will not call it constitutional?
My Lords, the Government, as I hear the Leader of this House say frequently, are strongly committed to the process of House of Lords reform. We will bring a Bill before the House and we look forward to the welcome that it will receive from the House’s resident constitutional experts.
My Lords, this has been an excellent debate and I am very grateful to all noble Lords who have spoken for their high-class critique of the Select Committee’s report and their general welcome for our conclusions. I must also thank the Minister who, in his reply, was neither dreary nor weary, to quote the noble Lord, Lord Hennessy—that was the noble Lord’s description of the Government’s written response—but equally not particularly encouraging. If I look at the two fundamental points that the Select Committee wanted to make in our report, that constitutional legislation was clearly qualitatively different from other legislation and that it should be accompanied by a Written Ministerial Statement, which was in no way to be equated with Explanatory Notes—I think we made that explicit— I would have to say that the Minister was disappointing, in very much the same way as most noble Lords described the written response.
I would not agree with the opening remarks of the noble Lord, Lord Renton, about some of our proposals being over the top. I would describe them more as being practical, very measured and—I think this was the comment made by the noble Lord, Lord Wills—magisterial. I also thank the noble Lord, Lord Wills, for his development of our comments about public consultation. I think he has suggested a further inquiry for the committee, which was very helpful. I was also particularly pleased that the noble Lord, Lord Maclennan of Rogart, with his very distinguished background and record in this area of constitutional change, was so enthusiastic about our proposals. He suggested that there must be ways found for the House to take these proposals forward, perhaps through other methods of the Procedure Committee, et cetera. I look forward to some further work being done and this report not sitting on a dusty shelf. In the mean time, I beg leave to withdraw the Motion.