§ 3.17 p.m.
§ Lord Norton of Louth rose to call attention to the nature of the British constitution and the consequences of constitutional change; and to move for Papers.
§ The noble Lord said: My Lords, I very much welcome the opportunity to hold this debate today. One or two Members of your Lordships' House have commiserated with me on the timing, suggesting that this is not the best time of year for holding a debate. For the past two years, I have spoken on the very last sitting day before Christmas, so to speak on the penultimate day actually constitutes something of a step forward for me. In any event, I see this debate not as an isolated occurrence but rather as a prompt for a much wider debate about the very nature of our constitution.
§ My basic proposition is simply put. It is that we spend too much time debating specific items of constitutional change and not enough debating the nature of the constitution itself. Over the past three decades we have seen changes that have affected fundamentally the constitution of the United Kingdom. Yet the changes that have taken place have been treated as essentially disparate and discrete, each justified on particular 657 grounds but without being related either to one another or to a clear view of the constitution that is needed for the United Kingdom.
§ In a pamphlet published just over a decade ago, my noble friend Lord Hurd of Westwell made the point that we used to be good at reflecting on national institutions and their place in our constitutional arrangements. Our problem in recent years, he argued, was that we had rather lost that capacity. In immediate post-war decades, we rather took our constitutional arrangements for granted. Later, when those arrangements appeared not to be delivering what was expected of them, calls for constitutional reform began to be heard. Those calls, though, were made in response to what were seen as specific problems and were not couched in the language of constitutional discourse. There was no wide or sustained debate reflecting on the nature of our constitution and what we expected of it.
§ During the 1980s and 1990s, we did begin to see a debate, with more coherent approaches to constitutional change emerging. However, the changes that have occurred in recent years have not been rooted in any particular view of constitutional change. The result has not been a new constitutional settlement for the United Kingdom but rather what Professor Anthony King, in his Hamlyn Lectures in 2000, referred to as a new constitutional "unsettlement". We are making profound changes without any clear, coherent view of where we are going.
I shall identify briefly the fundamental changes that have occurred. The changes of the past 30 years have occurred essentially in two overlapping waves. The first was our membership of the European Community, now the European Union. The terms of the original treaties, as amended by subsequent treaties, have wrought a fundamental change to our constitutional arrangements. They have, among other things, brought about a new judicial dimension to our constitution. Indeed, membership has brought about what Aidan O'Neill QC refers to, in the latest issue of Public Law, as,
a paradigm shift in the United Kingdom constitution",
enabling the judges to assert the sovereignty of judicial power over and against the executive and Parliament. Membership of the EU can be seen now as a basic tenet of our constitution, but it is one that does not often fit well with the other tenets.
§ The other wave has comprised the changes enacted under the present Government. We have seen some major constitutional changes. Two of the most prominent changes, of course, have been devolution and the incorporation of the European Convention on Human Rights into British law. The Human Rights Act 1998 has bolstered the growing judicial dimension of the constitution. So, too, has devolution, as the courts are, in effect, constitutional courts for the devolved areas of the United Kingdom. We thus have a major judicial dimension, one that challenges some of the fundamental tenets of the constitution but one that has not been brought about 658 by conscious intent or as a product of a clear, sustained debate. The implications—for the courts and the constitution—are well drawn out by O'Neill in his Public Law article. We have, he argues, the making of a potential constitutional crisis.
§ I make no comment on the merits of the particular changes. That is not my purpose; rather, my point is that we need to consider them in terms of the wider picture. I appreciate that it may appear strange for a Conservative to want to move beyond seeing such changes as anything other than piecemeal reform. But what we have seen are changes that, collectively, move us to a different plane. We have not seen the occasional change that addresses a particular problem and one that can be absorbed within our existing constitutional framework. In short, we cannot see the changes as organic.
I concur with the analysis offered by the distinguished lawyer, Robert Stevens, former Master of Pembroke College, Oxford, in the prologue to his recent book, The English Judges. He observes that, traditionally, the growth of the English constitution has been organic, the rate of change glacial. Until recent times, he says, there has perhaps been only one exception: the period from 1640 to the arrival of Robert Walpole as the king's first minister in 1720. He writes:
This period represented the transformation of the Constitution from the admittedly weak English version of the Divine Right of Kings to a dimly perceived form of constitutional monarchy and responsible government".
He makes the point that, of course, there were important constitutional developments over the following centuries. Yet, vital as the Reform Acts and other measures were in moving Britain towards a modern democracy, they were, as Dr Stevens notes,
essentially independent acts rather than part of a dramatic period of constitutional restructuring'".
However, the period from 1970 to 2000, he argues, provides a practical and psychological transformation comparable with the earlier constitutional revolution. That is the crucial point. We have not seen the occasional independent Act but rather several measures that, taken together, alter the nature of the constitution and deliver, in Professor King's words, a new constitutional unsettlement.
§ Given that, it is essential that we stop looking at each change that has been enacted and each proposed reform to our constitution as some discrete development and, instead, engage in a more coherent debate about the very nature of our constitution and the type of constitution that we want for this country.
We are nowadays, I think, a little clearer as to what a constitution is. Your Lordships' House last year established a Constitution Committee, which I have the honour to chair, and, in our first report, we outlined what a constitution was and identified the key tenets of the British constitution. In so doing, we were drawing on established sources. So, we know what a constitution is. But do we know what a constitution is for? In a recent article in Political Studies, Duncan Ivison reminds us of the distinction between "positive" and "negative"
constitutionalism. Positive constitutionalism sees the constitution as enabling the will of "the people", as a collective body, to be paramount. As Ivison writes:
The constitution is presented as a 'system of politics', where the provision of … goods such as the protection of rights and the rule of law fall within rather than outside politics".
As he goes on to note, the constitution, in Richard Bellamy's words, becomes,
rooted in political and social structures rather than pre-political legal norms".
Negative constitutionalism, on the other hand, constrains the will of the people. The constitution stipulates what a state can and—most importantly of all in this context—cannot do. It is meant to protect against the arbitrary excess of power. I quote Ivison again:
Negative constitutionalism places great emphasis on the containment of political power and on minimizing the damage government can do. This is justified according to either (i) certain fundamental 'pre-political' considerations, such as universal individual rights, the equal value of individual welfare, or the impartiality of the rule of law; or (ii) in more strategic concerns to do with increasing the prospects for civil peace by decreasing the scope of governmental power".
That distinction is not only challenging; it also relates to the nature of constitutional debate in this country.
§ I mentioned that several approaches to constitutional change emerged in the 1980s and 1990s. Debate largely polarised around two of them. There was the liberal approach to the constitution, seeking a new constitutional settlement and doing so on the basis of negative constitutionalism—wanting to constrain an over-mighty state. And there was the traditional approach, wedded to the existing Westminster model of government, essentially a modified form of positive constitutionalism—the will of the people being expressed through, but tempered by, the parliamentary process.
§ The debate between the liberal and traditional approaches was overshadowed by the debate among practitioners as to the merits of particular reforms. That, I think, has been a mistake—potentially, a tragic mistake. We have debated the merits of particular parts but not stood back to look at the effect on the whole. It is essential that we stand back and discuss the constitution as a constitution. It is a major challenge. I wear my academic hat in saying that it is a major challenge for both parties. For the Government, the challenge is immediate. For my own party, the challenge is prospective.
§ For the Government, the challenge is one of deciding what sort of constitution they are trying to achieve with their raft of constitutional changes. I have asked Ministers what coherent intellectual approach to constitutional change underpins the reforms that they have introduced. Generally, they have avoided answering. I am delighted that the noble and learned Lord the Lord Chancellor is to reply to this debate. Not only is he now the Minister with responsibility for constitutional issues, he is the one senior Minister who has attempted to articulate principles underpinning the Government's constitutional changes. However, he has ploughed a lonely furrow, joined by few of his 660 colleagues, and has sought to give coherence to measures that fall within no clear conception of what the constitution is for. The question for government is: what sort of constitution are they trying to create for the United Kingdom? Are they driven by an adherence to negative or positive constitutionalism'? Only when we know the answers to those questions can we properly assess the particular changes that they favour.
§ The challenge for my own party is prospective. The party has embraced the traditional, or Westminster, model that has served the nation well. We may have failed in the early 1970s in thinking through the consequences, in constitutional terms, of membership of the European Community, but our approach otherwise has been consistent. The problem is prospective in that a future Conservative government will have to decide how to respond to a very different constitutional framework from that which existed when they were last in office. Do they embrace a conservative, a reactionary or a radical approach? That is, do they seek to conserve the constitution as it exists at the time? Do they seek to recreate the constitution as it was prior to the general election of 1997? Or do they seek an entirely new approach, recognising—as William Hague did in a speech on the constitution in 1998—that the clock cannot be put back?
§ As for the Liberal Democrats, they have embraced the liberal approach and their approach is thus coherent. I have made the point before in your Lordships' House that though I profoundly disagree with the approach they take, at least I can engage with it. Their problem is essentially a practical one: how far can they go along with a government who appear to deliver half or rather a quarter of a loaf without necessarily having any commitment to the whole loaf?
§ I conclude by posing what I see as the fundamental questions. Should our constitution be the consequence of disparate and discrete changes, driven by arguments specific to each particular change, or should it be the result of a clear view of what the constitution is actually for? Does the type and level of debate that we have had in recent years offer the prospect of a misshapen, perhaps dysfunctional, constitution—dysfunctional because, as we have no view of the whole, we have no way of seeing how each part fits with the other parts? And does not current debate about, for example, regional government or reform of your Lordships' House serve to highlight that very problem? In short, are we not looking at this through the wrong end of the telescope? I beg to move for Papers.
§ 3.33 p.m.
§ Lord Sheldon
My Lords, I welcome the debate initiated by the noble Lord, Lord Norton of Louth, on the changes in our constitution. There is a need for this debate. I wish we had the benefit of a similar debate in the House of Commons. In particular, I would dearly like to hear how the newer Members see their role. Certainly, there has been a diminution of the House of Commons as the great power in the land—about 661 which I feel very sad. The House of Commons was the central forum where all arguments were set out, decisions made and, if necessary, the executive challenged. That has been its historical role. In a limited way, there are signs that that situation may be returning. I hope that that is so.
When I knew that the noble Lord, Lord Norton of Louth, was initiating this debate, my first question was: how do we think the constitution is doing? My answer is, "Not very well". Devolution has yet to prove itself. The dominance of the executive over Parliament has increased. The unique position of Cabinet government has seen its former power greatly reduced. The Official Opposition are weak. Elections, both national and local, have resulted in the lowest turnout for many decades. Only the Select Committee system seems to be adequately examining the state of our government departments and the policies that they are pursuing.
Obviously, any debate on constitutional matters cannot fail to take account of the present discussion on House of Lords reform. There are two aspects of this to which I shall refer. The first is that there are those who seek to use the House of Lords to remedy the defects of the House of Commons. Few can doubt that the Government are having an easier ride in the House of Commons, both from a feeble Opposition, as well as having relatively few difficulties with their own Back-Benchers. I would have wished to have heard their opinions expressed in a similar debate to the one that we are having today.
In some circumstances, the House of Lords can remedy the shortcomings of scrutiny in the other place. But surely, the better answer is "Put your own house in order first". The second aspect is the need to avoid a second Chamber so much like the House of Commons as to cause a parliamentary logjam. There is much more to say on this, but perhaps that can wait for the very important debates in the New Year.
I have always believed that our constitutional arrangements are maybe the best, but are certainly among the very best in the world. During my time in Parliament, we have seen the still-to-be-digested consequences of the poll tax—that shameful tax imposed upon us. We have also seen the reduction in power of local authorities, devolution and impending regionalism. All those have changed fundamentally the way that we run and organise our national life.
Perhaps we may examine some aspects of our past and make a comparison with an area I know—Manchester. It was at the beginning of the last century that Manchester felt it needed to have an inland port. The Manchester Ship Canal was built, covering 30 miles from Liverpool to the centre of Manchester. It cost an immense amount of money, but a decision was made that it could be done, and it was done. No one can conceive of anything like that happening in local government today.
In more recent times, the airport was built. Manchester airport was the only airport run by its local authority. When the Government wanted to take 662 it over, the local authority said "No". I remember the speeches at the time: our forefathers built the ship canal, therefore Manchester should have the confidence to build its own airport. But that has gone. We do not see any of that today. That is finished, and that is sad.
In addition, we had the finest libraries in the country, built on the same local initiatives. Birmingham, too, had its own successes. But that is impossible to see today—Manchester was even having difficulties funding the Halle orchestra, and that is a shame.
Councillors were very important people. Councillor Pariser was one of the great unsung heroes of the old city council. He was chairman of the education committee. He decided that between the university and the University of Manchester Institute of Science and Technology—a distance of about a mile—he wanted to see a campus that brought education together. It was a brilliant idea. However, there was great need for housing in the post-war years and he had to square it with that. Councillor Pariser had the courage and support to produce the university in order that it would civilise the city, and the city would teach the university some of the facts of life. That was the type of local initiative which could be found, but it cannot be found today.
Some Members of the House of Commons are not acquitting themselves in the ways of the past. The House of Lords is relatively free of party dogma. We have expertise, experience, the executive and legislature. The constitution does not depend on party—it should not be dominated by party, nor intimidated by it—and in this Chamber, fortunately, it is not. The position is different in the other place. I refer to the diminution of the position of Members of Parliament. The Leader is not so dependent on Members of Parliament. In the days of Harold Wilson, before the election by party members, he had to ensure that he had support in the House of Commons. There is now a large majority in the House of Commons and the role of the government Back-Bencher is diminished.
The role of the government Back-Benchers is crucial because they can bring about changes and alterations in policy. As a result, many changes have been made. There were also Members with outside experience—people who had been successful before coming to the House of Commons. I could mention, for example, Richard Cobden, but in more recent times people of reputation and standing came into the House of Commons and brought about changes as a result of their experience.
That experience is hardly present today. Election to the House of Commons is largely obtained by means of persevering in party activities, either local or national. Successful people from outside, without the kind of dedication required in party matters, are not so likely to be selected. In this House, we have a wealth of talent and experience that is valuable in producing effective political comments and improvements to legislation.
663 Another change in the House of Commons is that the salary is now more attractive and rebellion is less attractive. If a person is a Member for only one Parliament, he or she can return to a previous occupation. If a person is a Member for more than one Parliament, it is difficult to return to that occupation. After two elections, therefore, the future of that Member of Parliament is irrevocably changed.
That, too, has consequences on the views of Members wanting to keep a government in power not just because they believe it is the right thing to do, but additionally for their own purposes. It is essential that the tradition of the House of Commons is maintained.
There is much more to say on the matter, but I want to comment on House of Lords reform because we shall be dealing with that in the New Year. We have in this place a degree of courtesy not because we are kinder but because here the Government do not have a majority to force through any decision. We have to succeed in this place by debate and argument and sometimes by careful consideration of the views of others. That is the task imposed on us and one to which I hope we shall return in our debates on the future of this Chamber and the way in which House of Lords reform is to proceed.
§ 3.42 p.m.
My Lords, my noble friend Lord Norton of Louth deserves congratulation on the way he opened the debate. Perhaps I may suggest to the noble Lord, Lord Sheldon, that when he refers to the constitution as doing badly, he should bear in mind that, however hard we try, the voters will not necessarily produce the result that we want; and they do not always do so, as I shall show.
The report on House of Lords reform is open-minded and complete in mentioning the alternatives. It is lucid and excellent in the way that it does so. Of the alternative methods, only two are to my mind feasible. One is that this House should be fully appointed and the other is that it should be 80 per cent appointed and 20 per cent elected. Those elected should be representative of Scotland, Wales, Northern Ireland and the English regions.
The argument in favour of having 20 per cent of our 600 Members elected is to ensure that those parts of the United Kingdom are adequately represented among us. Of course, they are to a great extent already. If one looks across your Lordships' House, one finds that already i t is wonderfully representative of all parts of the UK. It is possible that by having more Members appointed by an appointments commission, those areas would be even better represented than if 20 per cent of our Members were democratically elected to represent them.
I fought and won 10 general elections for another place. The constituency consisted mainly of wage earners and I never had a majority of less than 5,000. I always doubted whether more than 25 per cent of those who voted really understood the issues. I once 664 heard the great Winston Churchill say in relation to elections to the House of Commons,Democracy works badly but we cannot have any other system".That applies to the House of Commons which, rightly, nevertheless, has constitutional supremacy. But there is no need to apply that sad democratic description to your Lordships' House, because it would not happen here.
During my 57 years' experience as a parliamentarian—I hope noble Lords do not think that it is too long—I have witnessed great changes in both Houses. When I first entered the Commons in 1945 after the war, Members were paid only £800 a year by way of a salary. Out of that, one had to pay all one's expenses, including employing a whole-time secretary, so one had to have another source of income. I therefore returned to my practice as a junior barrister.
It was hard work doing both jobs, but not impossible. Now being a Member of another place has become an almost whole-time occupation. It varies according to the individual and the nature of the constituency. In those days, we had members of every profession in the Commons. We had farmers, financiers and a wide range of people accustomed to responsibility of importance.
Now membership of the Commons is a well-paid and mainly full-time job. One cannot get away from that. Therefore, few MPs enrich the Commons with experience of responsibility elsewhere. One regrettable example of that is that the Government could not and a Queen's Counsel in the House of Commons to become Attorney-General. For the past five years, we have had the privilege of having the Attorney-General in this House for the first time since that appointment was first created hundreds of years ago.
Of course, there have also been other tremendous changes in your Lordships' House. An important one occurred in 1958 when, as an Under-Secretary of State at the Home Office, I helped the late "RAB" Butler pilot the Life Peerages Act through the House of Commons. All of your Lordships, except the Bishops and the 92 hereditary Peers, are now Life Peers.
As both noble Lords said, among your Lordships there is a vast range of people accustomed to responsibility of importance. We even have three Field Marshalls and a Marshall of the Royal Air Farce, besides the Law Lords and representatives of every profession. If your Lordships were to be democratised, that would no longer be so. Indeed, this House would no longer be of the great value that it is as a revising Chamber, and it would come into conflict with the Commons, even if we became a mere democratic microcosm of the Commons. I hope that we never will.
Those are among my reasons for warmly supporting the view of so many Members of the Commons, and I believe almost all noble Lords, that we should not be democratised but should remain an appointed Second Chamber with the power to ask the Commons to think 665 again, while enabling that democratically elected body to have the last word. The Parliament Acts would remain as they are.
I want to mention one other matter. Paragraph 48 of the report suggests that all Members of this House should serve for only 12 years. That would be all right for elected Members if we had them, but it would be absurd for most life Peers. However, if a life Peer can no longer make a useful contribution he should retire from your Lordships' House. I would do so if I felt that I was no longer able to play any part.
The late Labour Peer Lord Shinwell was a wonderful example to us all. I remember our celebrating his 100th birthday with a splendid ceremony in this House. In the Library there is a memorial to him. Right up to the age of 100 he played a valuable part here. Let us not destroy such opportunities!
§ 3.51 p.m.
§ Lord Holme of Cheltenham
My Lords, I thank the noble Lord, Lord Norton, not only for his admirable chairmanship of the Constitution Committee but also for managing to place on the Order Paper a Motion so extraordinarily widely worded that it leaves those of us participating free to say almost anything on the subject.
It is the fashion nowadays in your Lordships' House—indeed, it is a requirement on us—to declare interests, which we also do compulsively. In respect of constitutional reform it is more a case of having to confess that I am a bit of an old lag. I have form on these issues; for 20 years, from the mid-1970s to the mid-1990s, I wore various hats as director of the National Committee for Electoral Reform, chairman of the Rights Campaign and chairman of the Constitutional Reform Centre; and as one of the founders of Charter 88 I laboured in the salt mines of constitutional reform.
I have to say that they were fairly barren years. Despite the help of many Members of both Houses from all parties, we had a sense of pushing water uphill on those issues. As the noble Baroness, Lady Thatcher, then Mrs Thatcher, said at a seminar at Oxford of the prospect of a bill of rights—Conservative colleagues will recognise the tone of this quotation—"Bill of rights, bill of rights: if we're in it isn't needed, and if Labour's in it's too late!"
Yet looking around now, the reward for the labour of those years which so many of us shared has been, if not in heaven, at least in your Lordships' House—of course many people are inclined to confuse those two institutions. As a member of the Constitution Committee and now chairman of the Hansard Society it has been an exhilarating experience to see this country undertaking a radical programme of constitutional reform in the past few years. To have been in Parliament during that period has been a great privilege.
Although I shall be critical of the Government shortly, every credit should be given to New Labour for embracing the constitutional reform agenda when 666 in opposition and for having the nerve and determination in their first term in office to press ahead with an ambitious programme of constitutional reform. The noble and learned Lord the Lord Chancellor will recognise that that was not without a certain amount of encouragement from these Benches.
Defining the British constitution is extremely difficult. Despite his scholarly leadership, I believe the noble Lord, Lord Norton, would agree that the Constitution Committee almost gave up on defining the constitution. It was thanks to him that in the end we succeeded in arriving at a fairly humble and workmanlike definition.
The problem is that, since it is not written down, the British constitution has some of the characteristics of a mirage. It is all towers and turrets, fountains and flags; it looks splendid in the distance, but when you come closer it tends to dissolve away into the gritty sand of the exercise of power and it is difficult to get your hands around what it actually is.
I thought that, in the brief interventions we are allowed, the best way of approaching constitutional reform—which I take to be an attempt to put the exercise of that power on a more rational, accountable and transparent basis, is to test how we are doing several years into this programme in readjusting the relationships in three dimensions: first, that between the state and the citizen; secondly, that between the centre and the locality; and thirdly, that between the executive and the legislature.
I turn to the first of those dimensions. Moving as we are from a top-down state-to-subject relationship towards a shared culture of citizenship is extremely difficult. We should recognise when talking about institutional change that it requires accompanying cultural change of one sort or another. The Human Rights Act was a great step in the right direction. All credit is due to the Lord Chancellor for his leadership on that Bill. Would that he had been as successful in repelling Sir Humphrey on freedom of information, where a great deal of progress remains to be made.
I turn to the second dimension: the relationship between the centre and the parts of the United Kingdom. There is now no doubt whatever that devolution has been a great success. It has been more successful than its opponents feared, even if it has not yet developed as its protagonists would wish. So far so good. In two dimensions at least we have partial success in constitutional reform. It is when we come to the third dimension that we realise where the failure is: the rebalancing of the relationship between the executive and the legislature—I certainly am not brave enough to take on the subject of the judiciary.
If anything, the elective dictatorship that Lord Hailsham pointed out many years ago has become worse. The popular plurality for Labour has morphed into a massive parliamentary majority via the electoral system. The second Chamber seems to be picked up and dropped like a toy by the Government on the whim of Ministers, instead of being reformed in a sustained and comprehensible way. Gallant attempts at parliamentary reform by the Leader of the House in another place have been resisted at the last ditch by a conspiracy of the Whips' club.
667 The media, even those committed to public service broadcasting objectives, treat Parliament as a subset of politics, entertainment and showbusiness. Ministers pander to that by giving them a priority that they do not assign to MPs. The Civil Service is suffering from creeping politicisation and there is no sign of the civil service Bill promised by the Government. I should be grateful if the noble and learned Lord would address that matter in his reply.
Talking of elective dictatorship, perhaps I may address the Conservative Benches. One of the great mysteries of modern times is why the Conservative Party has not adopted electoral reform, because at one stroke it could secure its own increasingly uncertain future—that is indeed what has happened in Scotland—it could demolish Labour's preposterous majority; and it could reassert choice and popular will on the part of the people. I would not go so far as to repeat Winston Churchill's charge, when he was a Liberal, that the Conservative Party is a stupid party, but I would certainly say that in this respect it seems to be one volume short of the collected works of Bagehot.
If my analysis is of two partial successes and one abject failure, there are reasons. The first was referred to by the noble Lord, Lord Norton, in his introductory speech: there is a total lack of joined-up thinking. For the Government these are serial pragmatic measures rather than being part of a comprehensive analysis of what needs to be done. The second is that the Government are still torn between Locke and Hobbes versions of what the constitution should be. The voice is the voice of Locke, speaking noble words about reform, but the hands—and they seem to be rather hairy hands—are the hands of Hobbes, supporting sovereignty undiluted.
Until the Government make up their mind whether they are committed to pluralism, decentralisation and openness, this fatal ambiguity will persist and we shall not get the constitution we deserve.
§ 4 p.m.
§ Lord Weatherill
My Lords, when I looked at the list of speakers I very nearly withdrew my name. Five are professors—the noble Lords, Lord Norton, Lord Holme, who has just spoken, Lord Morgan, Lord Smith of Clifton, and I am sure that the right reverend Prelate the Bishop of Portsmouth is a considerable academic.
Shortly after I became Speaker I went to Oxford to talk to the Study of Parliament Group. The master of the college asked me whether I had been up at Oxford. When I said, "Yes", he asked me, "Which college?". When I said, "Cowley Barracks" he did not think that it was terribly funny. I then asked whether they were all academics. They all said that they were and I drew to their attention the definition in the Oxford English Dictionary—of no practical value; not leading to a decision; academic.
I shall concentrate on practical issues. I am a Member of the Joint Select Committee on House of Lords Reform but I do not intend to talk about its work today because that will be the subject of a later debate. However, we are very much indebted to the 668 noble Lord, Lord Norton of Louth, for introducing the debate, as we were last week to the noble Lord, Lord Peyton of Yeovil, for introducing a broadly similar debate. We shall have other debates on this very important subject.
In my nine and a half years as Speaker of the other place, I kept a careful list of Back-Bench speeches which, in my presence, had caused the Government to concede to an argument. People often say that speeches in the other place do not matter—they matter in your Lordships' House—but that is a myth; they certainly used to matter. I heard 18 examples of that in my first five years and 16 examples in my second five years, and those were only the speeches that I heard myself.
My prime example is Tony Benn speaking on the Zircon affair. I will not go too deeply into the subject, but his single speech totally swung the House of Commons on that issue. It is my best example of a single speech in the House of Commons totally changing the view of other Members.
I also kept a list of speeches which had pleased me. The one I shall refer to today was given by my old friend Frank Haynes, the Labour Member for Ashfield, who, in a debate on new technology, pronounced a great truth:Mr Speaker, sir, I am all in favour of progress as long as it does not mean change".One change has occurred in the other place since my departure in 1992 which has passed, without much comment. I believe that it is a constitutional outrage to which I must draw attention because I hope that it will never ever be adopted in your Lordships' House. I refer to the fact that votes after 10 o'clock at night are now deferred to the following Wednesday afternoon. This shatters one of Parliament's fundamental principles—namely, that Divisions should follow debate—and introduces instead voting in absentia on business which Members of Parliament may not have heard or attended. The logical consequence of that is surely proxy voting.
I served in the Whips' Office in the other place for some 12 years, both in government and in opposition, and I well understand the difficulty that governments have in achieving their business and the frustrations involved. I understand, too, the desire of governments to streamline procedures in the interests of efficiency. But Parliament must be a free institution first and an efficient institution second. It is the prime duty of parliamentarians to hold the Government to account and to subject their policies to careful scrutiny. If that means sitting through outrageous arguments and long-winded speeches, that must be borne with fortitude. For at the heart of the parliamentary system is the right of an individual Member, and beyond him or her an individual citizen, to have a voice in Parliament.
We do not have adjournment debates in your Lordships' House but, when I was sitting in the Chair in the other place, I used to think how wonderful it was that the individual grievance of an individual citizen should be debated in the House of Commons. It was 669 always late at night, the last business of the day—with no one there except the poor old Speaker, a Whip on the Bench and the Member making his submissions—and it lasted for half an hour. It may not be very efficient, but it is surely one of the glories of our parliamentary system of government.
I have not previously expressed my views in your Lordships' House on the European Union. As the Member of Parliament for Croydon North East, in 1975 I asked my constituents if they wished to join the European Economic Community, not the European Union. I am increasingly alarmed by the way in which our constitution is today overridden by a flood of European directives and regulations which are seldom, if ever, debated in Parliament and yet are binding upon us.
Document FCO 30/1048 makes clear that the European Union is headed for economic and fiscal monetary union, with a common defence and foreign policy. This would constitute the greatest hand-over of national sovereignty in our history. Speakers of the House of Commons are traditionally the guardians of the rights and the privileges of Parliament achieved for us through the centuries by our forebears. No Speaker could or should see this overridden or put in jeopardy. No Speaker could envisage his or her successor becoming, in a European Union, about as important as, say, the chairman of the Greater London Council, whose former building across the river is now an up-market hotel.
This is not a frivolous point—I shall return to it on another occasion—but it should be mentioned in the context of today's debate, for which we are so indebted to the noble Lord, Lord Norton of Louth.
§ 4.7 p.m.
§ Lord Morgan
My Lords, I, too, express my appreciation to the noble Lord, Lord Norton, both for initiating the debate and for his admirable chairmanship of the Constitutional Committee, which is one of the most interesting bodies I have served upon in my life.
It is a very opportune debate. As the noble Lord and others have said, there has been a great torrent of constitutional change since 1997. It is the most radical action the Government have taken. There has been a major transformation from a relatively closed, over centralised, undemocratic constitution with no concept of citizenship to a more open system that enshrines the ideals of rights and pluralism and moves closer towards genuine popular sovereignty and a clearer civic vision. I praise the Government for this and, although I am not in the business of sycophancy, I praise my noble and learned friend the Lord Chancellor, whose energy has driven through so much of the change.
Yet these tremendous changes are hardly ever discussed. Ministers are silent and the Prime Minister is particularly silent. It is not surprising that Larry Siedentop, in his book on a democratic Europe, says that the British are,constitutionally the least literate people in Europe".670 One understands what he means.
I wish in the time available to focus on three broad points, alliteratively called "Coherence", "Contradictions" and "Confidentiality", all of which are problems thrown up by the process of the constitutional change to which the noble Lord, Lord Norton, referred.
Turning first to coherence, as the noble Lord, Lord Holme, said, each of these transformations has been considered as a discreet, separate change. The inter-relationship between them has not been spelt out—for example, the relationship between devolution in Scotland and Wales and the reform of the Houses of Parliament. There has been mention of the territorial aspect that might be emphasised in a newly constituted House of Lords, but the relationship of that to the existing legislatures in Edinburgh, Cardiff and Belfast has not been made clear. There used to be, until the last general election, a constitutional unit within the secretariat. That is now no more and therefore what the overriding vision is and who or what provides it seems unclear.
Many questions are opened up, particularly by devolution—notably in intergovernmental relations, which the report of our committee deals with. The asymmetry of devolution is historically inevitable but it presents many problems. Without being too specific, one of them is obvious and is in regard to Wales. The Welsh settlement is clearly unstable and that appears to be the view, as expressed this morning by the Electoral Commission, of the people of Wales as well. The most signal symbol of incoherence seems to me the great black hole in the settlement, which is England. England is not treated within the settlement. It is almost—as was once said of Italy—a geographical expression with no distinct legal, constitutional or statutory identity. We have not posed the English question, let alone answered it. Until we do so, the basic instability and incoherence of the constitutional settlement will remain a problem.
As to contradictions, practices have taken place and are taking place as if those changes have not occurred—as though it is still the same old system that we have had lumbering on since the age of the Tudors if not the age of the Norman conquest. As my noble and learned friend the Lord Chancellor eloquently stated, we are trying to entrench a culture of rights, yet so many developments erode our rights and go against a culture of human or civil rights. Indeed, it is much to the credit of this House that the erosion has not been more considerable.
We have considerable contradictions in the practice of devolution. Devolution presupposes divergence. The whole point of devolution is that things will be done or may be done differently in different parts of the country, yet in practice the emphasis has been not on devolution but on dirigisme. That has been very much the view of my own party, as we saw in the election of a mayor in London and of a First Minister in Wales. Devolution has evolved and is stable—but it has evolved in a way that reflects traditional, historic, antique practices. It is determined in effect by what happens in England. The finances of devolution are 671 dictated by the Treasury in Whitehall. The famous Barnett formula—I am sorry that the noble Lord is not with us—is determined by the Treasury and that seems again an example of the way in which developments have contradicted the original concept.
Parliament is moving, we trust, towards a more democratic system. The ending of the hereditaries will, I hope, speed that on its way—yet we do indeed have oligarchy. We have Lord Hailsham's concept of "elective dictatorship". The most dominant feature constitutionally recently has been the decline of Parliament—particularly the decline of the House of Commons. When I came to this distinguished House two and a half years ago, I had read Bagehot and believed that the House of Commons was the efficient part of the constitution and that the House of Lords was dignified. The reverse is true. The Commons is dignified. One might almost say that the Cabinet is dignified. This House is surprisingly efficient. I hope that will be borne in mind. That seems to be the fundamental point underlying the reform of the House of Lords.
Finally, confidentiality—or, perhaps a better word, informality. The British constitution has gloried in being unwritten and informal—a system of glorified muddle-through. We have had that obviously shown in devolution. It has occurred but it has occurred because the different branches of the Civil Service know each other and are interlocking. The Civil Service personnel know each other—we were told that in the precincts of this House when we studied the question. The effect of confidentiality and informality is actually to negate the principle of devolution. They actually work against it.
One of the institutions where that is clear is never discussed—the monarchy. I await protests. Republicanism is weak in this country. It is unlikely ever to achieve its objective in a lifetime that we can foresee. But the informality of our processes seem peculiarly damaging to the concept of constitutional monarchy. The effect is that discourse on the monarchy takes place through the media, not constitutionally—certainly not in a way that Bagehot or anyone else would call dignified. Hence we have the growth of a system by which the royal prerogative is expanded as a shield behind which governments hide. It is never identified and isolated. There is popular confusion, which the very informality of the constitution encourages, between the monarchy, Crown and individuals in the royal family. Time and again—in the butler trials and elsewhere—those are confused.
We do not, as Charter 88 argues, need a written constitution but Charter 88—I am a member of that body—does spell out wider weaknesses. We are moving closer towards a written constitution on Europe, human rights, devolution settlement and definition of political parties. We now need—the monarchy is a very good example—a set of more precisely and closely defined relationships. We have a good way to go before we achieve the vision of which the noble Lord, Lord Norton, spoke—the vision of what the constitution is for. At the moment, we hover between what Arthur Griffith, the first president of free Ireland, called "a dead past" and "a prophetic future".
§ 4.16 p.m.
§ Lord Fowler
My Lords, I also congratulate my noble friend Lord Norton of Louth on initiating this debate. I agree with him that we are in danger of making separate changes without any clear idea of where we are going. My remarks will be more specific but with that theme very much in mind.
Having come so recently from the other place, I will spend a few minutes examining the relationship between Commons and Lords. The noble Lord, Lord Sheldon, touched on that—as did my noble friend Lord Renton. That relationship is particularly important given the forthcoming debates on the future of this House, which will take place in the aftermath of the Joint Committee report. My central concern is that there is a gulf of misunderstanding on the role of this House today, let alone on the role that it might occupy in future.
It is about 175 paces from the Speaker's Chair in the House of Commons to the Woolsack here. I hope that noble Lords will take my word for that—I paced it out. Frankly, at times the distance between them could as well be 175 miles. We live in different worlds that seldom come together. The knowledge of the average Member of Parliament about what goes on next door is little better than zero. This House, I regret to report, is seen as a rather quaint assembly in a distant land. When MPs refer to "the other place", it is usually to protest at the actions of the unelected or to mock our eccentricities in some way.
I readily admit that I am in no position to criticise. In my 31 years in the House of Commons, I seldom watched the proceedings here. I trooped in each year for the State Opening—and, as a Secretary of State, I would occasionally crouch on the steps of the Throne and scowl as this House took great bites out of my legislation. The Lords, I emphasise, do not simply defeat Labour Governments. I hope that point is understood. Such visits were rare. Like most Members of Parliament, I was bound up in my own world of Commons debate and constituency affairs.
However, when it comes to it, Members of Parliament will make the final decision on Lords reform. The danger is that in deciding the fate of the second chamber, the 650 Members of the first chamber will judge everything by their own standards. A popular view among MPs is that there is nothing wrong with the Lords that cannot be cured by elections. They say that reform is a very simple matter: the functions of the Lords will remain exactly the same, particularly its subservience to the Commons, and as many Members as possible of the second House—perhaps all—will be elected.
That is a comforting theory, but in my view it will not work. I say that for one good reason. As matters stand today, I am an appointed Peer and, as such, I broadly accept the conventions that limit the powers of the Lords. We do not destroy government Bills, we examine legislation which time after time requires such examination and correction, and occasionally on major issues of public debate we ask MPs to think again. Ultimately, however, the Commons will have its way.
673 As an appointed Peer, I accept that entirely. But if I were an elected Peer I would be much more militant in my demands. I would argue that I had just as much authority as a Member of Parliament and a duty to represent the views of my electors. I would not accept for a minute that I should be excluded from making decisions on most things financial, to give just one example. As night follows day, an elected House of Lords, or a substantially elected House, will lead to demands for more powers for this House. I believe that those who want an elected "senate" are, therefore, honour bound to say what exactly the powers of this new body should be; how they would impinge on the Commons, and how conflicts between the two Houses would be reconciled.
The trouble with the present debate is that it concentrates almost exclusively on election to a second chamber and the arguments that go with that; namely, whether the remaining hereditaries—I disagree with the noble Lord, Lord Morgan; I think that some of the hereditary Peers are the strongest performers in this House and are among the hardest workers—should be expelled, whether a retirement age should be introduced and so on.
What we should be debating first, as a necessary prelude, is what the country wants the second chamber to do. My guess is that, if the debate focused on functions and not merely on elections, the majority would be for the kind of revising chamber with limited powers that we now have. Indeed, that is what the Joint Committee has said. The much maligned Wakeham commission proposed ways in which the present balance could be preserved.
My guess is that the public would support a House which exhibits, as this House does, some experience and some expertise. I think that they find it reassuring that, when the country contemplates war, we can hear the voices of people who have travelled that way previously such as former Foreign Secretaries and service chiefs.
My guess is that the public support the idea that this House, as it is, is much less partisan and more independent than the elected Chamber. There is no question about that.
And my guess is that the public see the advantage of having a House that is able to devote time to scrutinising legislation. I refer not only to published Bills but to pre-legislative scrutiny. I would also argue in favour of post-legislative scrutiny. All too often, some of the mistakes that come through are the result of a lack of post-legislative scrutiny, which this House could do very well.
I believe that, if the public knew, they would also value the role of this House in holding Ministers to account. I have noted an intriguing contrast between the two Houses. Ministers in this place are often put under more pressure than they are in the other place. In the other place, Ministers can get away with simply bobbing up and sitting down very quickly—I speak entirely from experience. I observe that it does not work in this Chamber to anything like the same extent.
674 My fear and concern is that the other place will try to have it both ways. Members there will vote for a substantial elected element, and they will insist that the status quo as regards powers should remain. If that is what we end up with, just as certainly that will not remotely be the end of the story. It will simply set the scene for a bitter struggle between the two Houses, 175 paces apart, which can only end in a transfer of power away from the House of Commons. I cannot believe that is what Members of Parliament want, and even less do I believe that it is the kind of result that the public desire.
§ 4.24 p.m.
§ Lord Smith of Clifton
My Lords, I, too, declare an interest as a fully paid-up member of the movement for constitutional reform. I was an original signatory to Charter 88 and I have been a director of the Joseph Rowntree Reform Trust Limited for many years.
I warmly congratulate the noble—and scholarly—Lord, Lord Norton of Louth, on initiating the debate and on the thrust of his argument in opening it. The constitutional scene has seen so many recent developments, and further ones are in train, that it is important to step back and reflect in order properly to survey what has been happening—and not before time. It is not, however, merely a matter of pausing to collect our thoughts on the subject, but of seeing what still needs to be done. Constitutional husbandry, like painting the Forth Bridge, should be a continuous activity; it should not be neglected, as it largely was for most of the previous century.
As my noble friend Lord Holme said, the Government deserve credit for what they have achieved since 1997, especially in the case of devolution and the attendant changes in the voting systems. They have also incorporated the European Convention on Human Rights and introduced, albeit in diluted form, the Freedom of Information Act. Now, they are proposing a system of devolution for the English regions. All of these measures are on the right lines.
The topic under debate is large, but time is short. I shall therefore focus on what I regard as possibly the major constitutional problem—one to which I have regularly referred previously—namely, the burgeoning of what I have termed the political demi-monde, where the executive government of this country now effectively resides. It operates largely informally, and almost untrammelled by any constitutional constraint. It is the extreme illustration of how flexible an unwritten constitution can be—and therein lies the source of the problem.
From one point of view, the motives for its emergence and continual, almost tropical, growth are well-intentioned. In its most simplified form, such motives are born out of a wish to cut through the bureaucracy and traditions of Whitehall in order to render government more efficient and effective and better fitted to cope with modern circumstances.
Recent governments of both colours have felt the need for a whole new repertoire of agencies and personnel to service them; and so we have seen an 675 explosion of hived-off executive agencies, quangos, task forces, partnerships, czars, freelance peripatetic plenipotentiaries, and spin doctors. They constitute the demi-monde. Life seemed so much simpler when all we had were Ministers, civil servants, lobbyists and management consultants!
A recent mutation in the demi-monde—quite an alarming one—has been its spread into almost every locality. It is no longer confined to London. There is now a rash of so-called local partnerships of epidemic proportions, promoting and overseeing a plethora of government initiatives. The partnerships are in effect mini-quangos or task forces. Their memberships are appointed from the centre; Nolan rules are not applied: and there is little real local consultation. They function, quite deliberately, to by-pass and short-circuit local government. In one metropolitan borough, there are over 90 such agencies operating within its boundaries. As the recent authoritative study, Britain under Blair, by the think tank Democratic Audit, reveals, that pattern is now common, especially in England. Devolution has to some extent prevented its spread in Scotland and Wales.
Created with the best of intentions, this new form of governance has got out of hand. Both the people and agencies concerned are literally running amok. They exist in a constitutional limbo which is all but impenetrable to outsiders. This has many implications for the health of political life. One, I venture to suggest, has been a contributing factor in the deterioration of the Fourth Estate. Quality investigative journalism gave up examining the quagmire that executive government has become because of its complexity, and the task has been ceded to the muck-raking, cheque-hook sensationalist journalism that now characterises so much of the press. That, in turn, has contributed hugely to the general dumbing-down of the media, which has fed the public's disillusionment with politics. These days, one seeks in vain any informed, sustained analysis of public affairs. Sleaze and sensationalism have replaced substance in what now pass for current affairs.
The climate created by that feeds back, particularly on the political demi-monde as it seeks to reassert its control over events and the policy agenda. There is now a vicious circle of an almost cannibalistic character. The Prime Minister and his inner circle feel increasingly besieged, which leads to ever-stronger doses of presidentialism. Without the counterweight provided by a formal separation of powers, the apparently untrammelled exercise of presidential-style power by the Prime Minister, working through the demi-monde, arouses accusations of control-freakery and cronyism that have become so familiar in the day-to-day commentaries on the Government.
The Government are unable to administer and monitor all that goes on in their name via the demi-monde. The recent innovations of a monthly Prime Ministerial public press conference or an appearance every six months before the Commons Liaison Committee are all very well, but they are hardly a sufficient accountability counterweight to the 676 tentacular operations of the demi-monde. In one sense, that would not matter so much if policy-making were much better than previously. But even if all policies had proved to be roaring successes, there would still be a need to render the activities of the demi-monde and its nomenklatura much more publicly accountable.
The systems of parliamentary, Cabinet arid local government are now largely confined to the "dignified" parts of the constitution. In so far as they still function, it is as a shadow of their former selves. Power and authority are now effectively vested in the demi-monde. It may well be that those traditional institutions of representative democracy have outlived their usefulness and need to be replaced by more flexible ones suited to contemporary conditions. That proposition needs to be thoroughly examined and recommendations made that could be properly codified.
More than a decade ago, the IPPR produced a written constitution against which I have never seen any cogent argument. If it was necessary a decade ago, it is even more so now. As many reformist groups, most notably Charter 88, have argued, Parliament should set aside time to look at the constitution as a whole, as the noble Lord, Lord Norton, suggests, with a view to having a written one. The chances of that happening in the near future are slim. Meanwhile, we must make do with short, two-and-a-half-hour debates such as today's. They help a little, but much more consideration should be given to the subject of constitutional reform if democracy is to be regenerated in Britain.
§ 4.33 p.m.
§ The Lord Bishop of Portsmouth
My Lords, like many others, I welcome the opportunity to debate the significance of the constitutional changes now being considered in these Houses, which was afforded by the noble Lord, Lord Norton of Louth. I began my ministry in the county of Lincolnshire—down in Caistor, then at Grantham and out at Holland on the fens of Boston. It is good to have a Lincolnshire man lead this debate.
Taking the broad view, as I said in the Chamber on Monday, the expansion of the European Union is genuinely to be welcomed, not least because it creates a genuinely European union rather than an exclusive club for those in the western half. From the perspective of religious communities, that will create a broader canvas for many varieties of communities—Protestant, Roman Catholic, Orthodox Christians and Muslims—to share in the prosperity that western Europe has enjoyed in recent years.
It is to be hoped that the expansion agreed in Copenhagen will be a force for change in the mound of bureaucratic regulation coming from Brussels. One can even see a future where that centre of political gravity will need to shift eastwards. Similar developments are discernible in Anglican-Lutheran relationships, to which the noble and right reverend Lord, Lord Carey, as Archbishop of Canterbury, gave such impetus. The Porvoo Common Declaration of 677 1992, post-perestroika by three years, included the Baltic states with their Lutheran churches. Ten years on, the question is: should we include those 500 Lutheran congregations in Russia and Siberia who are of German origin but increasingly Russian character? We are wrestling with the same kind of issue.
From this perspective, however, the role of the United Kingdom is both on the outer limit, sharing many of the views and perspectives of our Scandinavian partners, and an important bridge with the English-speaking world, where the culture of business, commerce and education has its own distinct flavour.
At the same time as that shift is taking place, our own constitutional reform is taking us in different directions, with the development of devolved government to different levels in Scotland, Wales and Northern Ireland. In the regions of England, the regional development agencies are beginning to make an impact, especially in those areas that perceive themselves to be distant from the centre of power and influence. In short, it would appear to the casual observer—and I believe there is some truth in this—that the current century, as compared with the previous one, will be seen as a time when political authority is dissipated throughout various locations, and where direct accountability of those who exercise government within those locations is less clear.
I now turn to the Joint Committee's proposals. First, I thank members for the clear and collaborative way in which they worked together to produce a range of options to move us beyond the stalemate reached after the present Government's initial stage of reform. The committee is right to identify the importance of independence and expertise in the role of this House in scrutinising legislation as it comes to and fro. It is right that the House should not be dominated by those of one political party or another. It will be up to these Houses to decide on the various proportions of elected and appointed members.
I wish to make some brief observations on an area not covered by the committee's report, which is yet to be looked into. I take the liberty to do so now, because I shall be shortly on study leave until March and, therefore, may miss the debate on the report. I refer to the question of the Lords spiritual, for whom these Benches have consistently taken the view that there is a vital place. We do so in the knowledge that there was a smattering of abbots, not just bishops, on these Benches in the Middle Ages. So the composition of these Benches has a past different from its present. We believe it has a future that has the potential to be different, too. We realise that, while shorthand expressions can be a necessary nuisance, religious representation does not quite express the broad thrust of the notion of Lords spiritual. We are clear that we are not here to cling to some mythical Anglican privilege, but that the reality and breadth of spiritual values continues to develop in a post 11th September 2001 world.
678 But what of the central issue; that is to say, where the focus of political authority lies in the United Kingdom? The dispersal of authority, which I described earlier, was supposedly intended both to bring political decisions closer to people in their own locality through the regional assemblies, and to link in with a broader European perspective through our membership of the Union. Frankly, I nowhere detect that the people of south-east Hampshire, Portsmouth and the Isle of Wight, with whom I have a self-evident relationship, have any greater sense of political involvement than they did, say, 20 or 30 years ago.
All the indications are that constitutional reform has made little dent in institutional decline and participation in the democratic experience. I am afraid that regional government has patchy heartlands of enthusiasm. If I may speak from professional conversations, such places as Durham, Liverpool and Exeter may speak with one voice, whereas Newcastle, Carlisle and Truro speak with a rather different one. That is not bishops falling out, because, of course, we never do; it is actually the people on the ground whom we are meeting all the time. That important point is continually neglected in the exercise. Regional government may be where we ought to be, but we must realise that we have a big hill to climb yet. I sometimes wonder whether the people in Gosport peninsula have a great deal of enthusiasm to cast votes in an election for an assembly sitting in Guildford, covering a region that starts in Canterbury and ends in Oxford. But, as in all things, I am convertible.
I wish to make it absolutely clear that I am not passing judgment on those who exercise political authority; nor am I suggesting that reform was unnecessary, because it was clearly needed. I wish only that parliamentary reform were seen at both ends of this Corridor, and not, as the noble Lord, Lord Fowler, implied earlier, focused on who sits here. Rather, I want to draw attention to the fact that our constitution, such as it is, is now a diverse and very varied beast—a body made up of many parts that is beginning to look somewhat "Heath Robinson" in its composition. All the parts have a rationale to them, but the cohesion of the whole seems to be lacking. What this House needs in particular is the ability to scrutinise legislation, not only from the perspective of a party political interest but also from that of those with real expertise and a breadth of experience.
I believe that I am almost searching for the language of wisdom, which has a long and venerable history in the religious traditions of many faiths. Wisdom is primarily about the use and application of knowledge, rather than the knowledge itself. It is about the use and application of experience rather than experience for its own sake; it is about the use and experience of historical perspective, without giving into an historical determinism, which says that things can never change—or, alternatively, that things are inevitably leading in one particular direction, which, of course, is usually the way that one thinks at the time.
In looking for "wise men", I do not want to be accused of making a pun at the festive season, nor of sexism—because wisdom in biblical literature is feminine—nor of 679 being elitist, because I believe that we shall need rather more than three of them! But it is wisdom—whoever sits here, however they arrive here, and for whatever length of time they stay here—that I am after. I want to see it continue to be exercised in this Chamber, both now and in the future.
§ 4.41 p.m.
§ Lord Pearson of Rannoch
My Lords, I submit that the core of the British Constitution is the right of the British people to elect and dismiss those who make their laws. That right has been hard won over the centuries, and defended with tremendous sacrifice in two world wars. But I also submit that our membership of the European Union has already largely removed that right, and that this theft of their sovereignty has taken place without the people's knowledge or consent.
To see how that has been done we need look no further than Sections 2 and 3 of the European Communities Act 1972, which took us into what was then the European Economic Community. Those clauses are so chilling, and so pertinent to this debate, that I fear it is worth placing their salient words on the Official Report in your Lordships' House, because it is some years since that has been done. Section 2(1)and (2) read:All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties … are without further enactment to be given legal effect … and be enforced, allowed and followed accordingly.Subject to Schedule 2 of this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by regulations, make provision … for the purpose of implementing any Community obligation of the United Kingdom".Section 3 reads as follows:For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court)".If any member state does not obey the European treaties, as interpreted by the Luxembourg Court, Articles 226–229 of the Treaty Establishing the European Community (or the TEC) allow that court to impose unlimited fines.
I say that these clauses are "chilling", because they mean that once the executive, or our Government, have used the treaty-making power of the Royal prerogative and have agreed, or have been outvoted, on a new law in Brussels, the British Parliament must enact it, on pain of unlimited fines in the Luxembourg Court. That is why no law agreed in Brussels has ever been overturned by Parliament, which has therefore become a rubber stamp.
I know that your Lordships' House and the other place spend a lot of time and energy scrutinising and debating European legislation. I feel sure that the views of your Lordships' Select Committees, particularly, have had a beneficial effect on the government of the day in their negotiations in Brussels. But once the House has debated a proposed new law, the so-called "scrutiny reserve" is lifted, and the executive is free to go ahead and sign up, whatever 680 the opinion of the House may have been. The scrutiny reserve is only a sort of gentleman's agreement in any case, and the Government are starting to show a certain disregard for its rules.
But the fundamental point is that these new laws, which now number many thousands and form the majority of all our new legislation, are not put to a vote in the House of Commons or in your Lordships' House until they have been passed in Brussels, after which we would be in breach of our treaty obligations if Parliament were to vote them down. It is of course true that each new treaty that takes us further into the grip of the corrupt octopus in Brussels is put to a vote in Parliament, although Parliament cannot in practice amend a treaty; it has to take it all, or leave it.
There are some other irreparably unsatisfactory features about our subservience to the European treaties, which further erode what most people still believe to be our constitution. For instance, Articles 211 and 249–254 of the TEC mean that the corrupt, unelected, and unsackable EU bureaucracy, the Commission, has the monopoly of proposing new laws. What sort of democracy is that? Just about the only joke about the European Union that I have recently heard is that, if it applied to itself for membership, it would not stand a chance.
Articles 2, 3 and 6.4 of the Treaty on European Union (the TEU, or Maastricht Treaty) and Article 5 and Protocol 30 of the TEC decree that once a power has been passed to Brussels that power cannot be returned to national Parliaments. This is known in eurospeak as the "acquis communautaire", or, in plain English, the "ratchet". Article 5 and Protocol 30 of the TEC are particularly beautiful, because they confirm that the famous concept of "subsidiarity" is really the device by which the ratchet is to be enforced. Article 5, which introduced subsidiarity into the treaties, says that the member states can do their own thing only in areas that have not been ceded to Brussels. Protocol 30 rubs it in even more clearly. I shall spare your Lordships a verbatim quotation, but a filleted version goes as follows:subsidiarity … shall respect the … objectives of the Treaty, particularly as regards the maintaining in full of the `acquis communautaire' and the institutional balance; it shall not affect the principles developed by the Court … regarding the relationship between national and Community law, and it should take into account Article 6.4 of the Treaty on European Union, according to which"—this is a quote within a quote—'the Union shall provide itself with the means necessary to attain its objectives and carry through its policies'".I trust that your Lordships will not miss the tidy elegance of Article 6.4, as mentioned in that quote from Protocol 30, which is often referred to as the "catch-all" clause, to be used just in case the corrupt octopus has overlooked some tasty morsel of our remaining sovereignty, to which it takes a fancy.
I say that these and other features of the European treaties are irreparable because the treaties do not contain an exit clause. Article 48 of the TEU means that they can only be amended by unanimity. I fear it is therefore deceptive to pretend that we can 681 renegotiate the treaties, unless we are prepared to leave the European Union if all the other member states do not agree the changes that we need—which, of course, they will not.
I know that the British people did vote in a referendum in 1975 to stay in what was then the European Economic Community, or Common Market. But the people were assured by the Prime Minister of the day, Harold Wilson, in a letter sent to every household in the land, that no loss of sovereignty would take place if they voted to stay in. The letter also contained another wonderful lie, which went as follows:There was a threat to employment in Britain from the movement in the Common Market towards an Economic and Monetary Union. This could have forced us to accept fixed exchange rates for the pound, restricting industrial growth and so putting jobs at risk. This threat has been removed".I am aware, too, of the propaganda that says that democracy in the European Union is achieved because the council of elected ministers takes the decisions, which indeed it does. But the UK has only 14 per cent. of the votes, and even that percentage will reduce if enlargement goes ahead. The constitutional point remains that Parliament itself is by-passed.
The EU already has its own Parliament, executive, supreme court, currency, flag and anthem. Through the convention under the chairmanship of M. Valery Giscard d'Estaing, it is near to having its own written constitution, foreign policy, army, police force, legal and tax systems. It will then be a fully fledged state, with its own legal personality, dominating all its member states, which will have become merely its regions.
That seems to me to be the greatest constitutional change since the Norman conquest. I repeat that the people are almost totally unaware of it. The question as to whether we should stay in the EEC, or EU, has scarcely featured in any general election campaign since 1983, and subsequent treaties have made it into a very different animal today.
I can but hope that national debate will break out when the Giscard convention reports next spring, despite the best endeavours of the BBC and all our main political parties to hide from the people what has happened and what is in store for them. I hope that the people will be angry; I hope that the Conservative Party will then listen to them and lead them away from the total subservience to an alien regime that otherwise awaits them.
§ 4.51 p.m.
§ The Earl of Mar and Kellie
My Lords, I am grateful for the chance to discuss the nature of the constitution of this state, the United Kingdom, and to consider its virtues and how it might evolve in the future.
There are many and fine definitions of the British constitution. For me, a behaviourist definition is appropriate: it is the way we do it, stupid; or, more politely, it is how we arrange to govern ourselves in this multinational state, the UK.
682 It is admirable that we do not have a codified, written constitution. Clearly, we have bits of constitution written down in various pieces of legislation, but we are at liberty to alter our arrangements as and when we wish. Change is, of course, dependent only on simple majorities in Parliament. I suspect that a written constitution becomes desirable when "we" do not trust the government on a consistent basis over the years. However, it is a sorry state for a country to get into when "we" do not trust the state.
Who are "we" in that context? The term can be defined as most people in the constituent parts. How should the declining popularity of voting in general elections be interpreted? Is it a confidence born of the fact that all major parties are broadly social democrats in character, and that that political stance is popularly desirable. Or, is it a rather ineffective register of complaint about government in general? I conclude that "we" are not certain about the ambitions of the state, which is a curious development in a parliamentary democracy. I suspect that mass abstention will continue to baffle parliamentarians.
My other point is about Scotland's position within the United Kingdom. The treaty of 1706 brought about an economic and political union, which was good politics for the time. The economic union was much prized: it would lead to the end of war; a guarantee of peace; free trade with England and its colonies. The political union was the downside. Three centuries later, Scotland is back on the map as a political entity, and aspirations for Scotland are now worth having.
While some would like to return Scotland to its historic place at the international table, others would seek a variety of options within the United Kingdom. Broadly, there is a small demand for a return to direct rule, as evidenced by the Scottish Parliament (Referendum) Bill, which was introduced by the noble Lord, Lord Palmer, earlier this year. There are many who are content with devolution, and others, including those on these Benches, who would prefer a federal solution with limited sovereignty, which I choose to call home rule plus.
When I walk down the Corridor, I am reminded by the two pictures outside the Bishops' Bar of how this House defeated the Home Rule Bill in 1893. That was an example of the House trying to stop a momentum of constitutional change that was demanded by some of the British people—the Irish, in that case. We know the consequences of the actions of the House—a non-British solution to the Irish question.
I hope that the British constitution will have greater flexibility in the future when any development is proposed towards home rule plus—a federal solution for Scotland, if that is demanded by people of Scotland.
The constitution is an organic system that absorbs and adapts to change as it is needed. It is certainly right to draw attention to any legislation that would alter the constitution, but it would not be sound to oppose that legislation just because it might alter the constitution.
683 The British constitution can be seen as a good thing if it is in line with the aspirations of the people, or as a bad thing, if the way that things are done is out of synch with the people. The challenge is to keep the constitution evolving with the times, and with the aspirations of the constituent parts. Otherwise, we shall discover too late that some of the people want to secede.
§ 4.56 p.m.
§ Lord Marlesford
My Lords, I start by thanking my noble friend for a remarkable speech, which could form the basis of a very distinguished set of Reith lectures next year. It would be timely if he were to develop his speech in that way and if the BBC were to take up my suggestion.
I shall focus on Parliament, not on the House of Lords reform, as such, and shall refer briefly to three other countries, each of which varies considerably from us and from each other.
The first is the United States, which looked towards Europe and looked away again at the time of the founding fathers. The US planted on the virgin soil, on which the seeds of tyranny had never grown, the most remarkable political document ever, which is the American constitution. In the 250 years or so since it was adopted in 1789, there have been only 27 amendments, the most recent of which was 10 years ago. The economy of words in the American constitution is remarkable. My noble friend Lord Pearson referred to Maastricht. While the Maastricht Treaty fumbled with pages of incomprehensible script, the tenth amendment, which is part of the Bill of Rights of 1791 had very few words. It states:The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively or to the people".It is a remarkable constitution that is very different from ours, but it enshrines tremendous safeguards by the separation of the legislature from the executive.
The second country to which I wish to refer is France. I always feel that France has for centuries been an autocracy but has masqueraded recently as a democracy. After the French Revolution, France was run by exactly the same people as those who ran it before. Many books about the French Revolution show that clearly. France is now in its Fifth Republic; there have been five attempts to get a good constitution.
The most relevant thing in this debate is that France does not really have a Parliament. How is that manifested? It is manifested by the fact that when the French Government want to make an unpopular change and there are demonstrations against it, those demonstrations rapidly become mobs. In France, unlike England, the people support the mob because they see the mob as a surrogate for themselves next time round. They do not feel that they have a Parliament to protect them. In this country, we detest mobs. We support governments rather than mobs. In my hook, that applies every bit as much to the pro-hunting mob of last week as it did to Mr Scargill's flying pickets.
684 I refer very briefly to Russia, which we are delighted to welcome back into the democratic family. The Parliament there, however, is in an embryonic form, and it has been extremely well controlled, first by President Yeltsin and now by President Plain, by a simple expedient. In a country which is still poor and where the advantages of public office are rather limited, the members of the Dumas have been loaded with privileges and perks. Whenever they threaten to step out of line, a general election is dangled in front of them and they rapidly fall back again.
In Britain, as my noble friend said, we moved from monarchical government to constitutional representative government early in the 18th century, a process probably greatly assisted by the fact that the early Hanoverian monarchs did not speak English and therefore could not interfere too much. Parliament gained strength from that time, in a steep line of progression, for 250 years or so.
I agree with those who said that the main constitutional changes which this Government have introduced have failed to show joined-up government. In making one change, Ministers do not appear to have taken into account the effect on other parts of the constitution. What I really want to focus on, however, is Parliament, and what I want to criticise is the Government's attempt—I think almost conscious attempt—to disarm Parliament.
The disarmament is being carried out under the cloak of modernisation. I am always surprised that governments are never able, at least as individuals, to contemplate the time when they will move into opposition. In this disarmament, they are aided and abetted by civil servants who regard Parliament as an even bigger nuisance than they regard Ministers. All of that has been famously, accurately and without exaggeration documented in the "Yes Minister" series of many years ago. Recently, there were press disclosures of highly derogatory internal Civil Service briefings against "tiresome" MPs who persisted in asking awkward questions. That shows that the "Yes Minister" culture is alive and well.
We could give many examples. The noble Lord, Lord Weatherill, gave the very telling example of deferred votes, which take away the essence of parliamentary debates—that one listens, or at least sometimes listens, and decides as a result of what one has heard. My noble friend Lord Pearson has identified another problem, although not a problem of the Government, in relation to the power that must be taken—"must" because there is a limit of power—as a result of the growth of the European Union. Perhaps inevitably—possibly even beneficially in some respects, although I do not think that my noble friend would agree—parliamentary power has clearly been eroded by that growth.
I refer particularly to the increasing use of executive orders. The number of Orders in Council—things done under the famous Henry VIII clauses of Bills which give the right to secondary legislation—has grown enormously. In 1984, there were slightly more than 2,000; in 1999, there were 3,700; now, there are about 4,000. These are very seldom looked at by either 685 House of Parliament. It is a great shortcoming on which the Procedure Committee has reported, though little seems to have been done about that very good report, which I think was issued in March 2000. I hope that Parliament will consider greater use of proper scrutiny, partly through the Joint Committee, and perhaps partly by the pre-enactment scrutiny of delegated legislation.
Finally, I give the obvious example of the way in which ever more legislation is not considered at all in the other place. Guillotines are now almost automatic, and timetable Motions tabled even on Second Reading. However much may emerge as needing discussion, discussion is limited. I strongly criticise that aspect of the Government's policy. While I am here, I shall do my best to draw attention to it and to oppose it.
§ 5.5 p.m.
§ Lord Goodhart
My Lords, we on these Benches greatly welcome this debate. The noble Lord, Lord Norton of Louth, is, I think, widely accepted as the foremost constitutional scholar in your Lordships' House. The Constitution Committee, of which he is the first and so far only chair, plays a very important role and has produced a number of valuable reports. He has now given us the opportunity of a wide-ranging debate about constitutional change.
The nature of the British constitution, of course, is to change. I would take some mild issue with the noble Lord, Lord Norton of Louth, when he suggested that recent changes were more extreme than anything since the 17th century. Certainly the constitution in 1930, for example, was utterly different from what it had been in 1830. During the intervening century, we moved from an oligarchy to a democracy. In the early years of the 20th century alone, we had the emasculation of the powers of your Lordships' House, suffrage for women and independence for the Republic of Ireland. Then, of course, the pace did slow down, although we had the Parliament Act 1949 and the Life Peerages Act 1958, whose consequences were perhaps more far-reaching than anyone realised at the time.
We then had the extremely important step of the European Communities Act 1972.1 agree with the noble Lord, Lord Norton of Louth, about its constitutional importance. In the final years of the 20th century, we had devolution to Scotland and Wales. We also had the Human Rights Act. I echo the praise given to the noble and learned Lord the Lord Chancellor for steering that legislation through Parliament. We also had the first stage of the reform of your Lordships' House. All these changes were welcome to me and my colleagues. They also had a profound effect on the British constitution.
The constitution is now very different from the days when I studied constitutional history and constitutional law at school and university some 50 years ago. In those days, the core of teaching about the constitution was still Dicey's view that there was only one principle of the British constitution—the absolute sovereignty of the Queen in Parliament. Is that still true? I believe that it is 686 not. The European Communities Act, the Scotland Act and the Human Rights Act all restrict the powers of Parliament to legislate. In theory, each of them could be repealed; in practice, I believe that each of them is entrenched. So the constitution today is perhaps a good deal more uncertain than it was in Dicey's day.
The noble Lord, Lord Norton of Louth, said that there was a dichotomy between positive constitutionalism, which he defined as ensuring the supremacy of the will of the people, and negative constitutionalism, which he defined as guarding against an arbitrary excess of power. I do not accept the thesis that one must adopt one of these forms to the exclusion of the other. It is, I believe, essential to get the right balance between the two.
The noble Lord, Lord Norton of Louth, said that the Liberal Democrats support only negative constitutionalism. That is not true. Our support for electoral reform, for example, is designed to ensure that the Government represent the will of the majority of the voters, not the minority. Our support for devolution is due to the belief that the Scots and the Welsh, who see themselves as members of historic nations, should have a parliament or an assembly which will enable the will of the people of those nations to be applied. But we also recognise that the tyranny of the majority is perhaps the most fundamental problem of democracies. Negative constitutionalism is needed. At times I felt that the noble Lord, Lord Norton of Louth, verged on anti-judicialism. Ever since the USA adopted the Bill of Rights in 1789—that is, the first 10 amendments to its constitution—the importance of entrenched rights has been recognised.
I believe that in the early post-war years British judges were unduly passive, but they have rightly changed. Francis Bacon said in the early 17th century—he was a royalist—that the judges should be lions, but lions under the throne. I was a little worried at times that the noble Lord, Lord Norton, appeared to suggest that judges should be lions, but lions under the Speaker's Chair.
We need to look at how our constitution will develop. I believe that we shall see further reform of your Lordships' House. I believe that, inevitably, that will mean the departure of the remaining hereditary Members, at least as hereditaries. I also believe that your Lordships' House will have a substantial elected element which, unlike the noble Lord, Lord Fowler, and others, I certainly welcome. However, that is a debate for another day.
We may well see disestablishment which, among other consequences, would mean that the Bishops would no longer have a place as of right in your Lordships' House. For myself—I am sorry to disagree with the right reverend Prelate the Bishop of Portsmouth on this matter—I believe that in a multi-faith and secular society ex officio representation of the 687 Church of England, and in particular the hierarchy of the Church of England, in your Lordships' House is inappropriate.
§ The Lord Bishop of Portsmouth
My Lords, I am grateful to the noble Lord for giving way. I looked forward in my remarks to the possibility of a more comprehensive spiritual Bench. That is different from not having one at all. As I say, I am grateful to the noble Lord for giving way.
§ Lord Goodhart
My Lords, when we move to a greater separation of powers I believe that we shall see the removal of the judicial functions of your Lordships' House and the creation of a separate supreme court. I know that the noble and learned Lord the Lord Chancellor does not like the idea but I do not believe that he can resist it any more than Canute could resist the waves. That is perhaps being unfair to Canute who, of course, knew that he could not turn back the tide. I believe that the noble and learned Lord will he no more successful.
At the heart of our constitution there is a larger and much more difficult problem—I agree with the remarks on this matter of my noble friend Lord Holme of Cheltenham—and that is the domination of the legislature by the executive, particularly when, as at present, the Government have a large majority. Is this an inevitable part of the constitutional system? Should we change it? Can we change it? There are some things that we could do.
Electoral reform would ensure that governments are more broadly based, as they are in Scotland arid in Wales, which undoubtedly shifts power from the executive to the legislature. We could strengthen departmental Select Committees in the House of Commons, turning them into something like the congressional or senatorial committees in the United States. That, again, would strengthen the powers of the legislature against the executive and would provide an alternative career path for MPs to the single career path, which most now seek, of ministerial office.
I turn to the role of your Lordships' House. A reformed House of Lords may play a greater role in holding the executive to account. I am not suggesting any change in the present conventions which govern the relationships between the two Houses or any attempt to challenge the supremacy of the House of Commons. But your Lordships' House, even partly reformed, has played a valuable part in modifying legislation, for example, on the Anti-terrorism Bill. Bill after Bill reaches your Lordships' House in need of improvement, and gets it. Sometimes a Bill needs improvement because the Government are deliberately trying to extend powers beyond their proper limits—as I believe was the case with the Anti-terrorism Bill—sometimes because a Bill is drafted too quickly and without adequate preparation (a current example of that is the Licensing Bill), and sometimes for both reasons. The Nationality, Immigration and Asylum Bill was an example of that.
Finally, a number of speakers referred to a written constitution. That, I believe, is some way off. But I personally see no particular merit in an unwritten 688 constitution. Last week I heard Mr Oliver Letwin in an interesting discussion float the possibility of a written constitution. My noble friend Lord Smith of Clifton referred to the IPPR draft of a written constitution. I am glad he did so as I contributed part of that. We are in fact still some way off a written constitution, but the building blocks are being made—the Scotland Act, the Government of Wales Act, the Human Rights Act. I believe that a time will come to put them together into a single constitutional document.
§ 5.16 p.m.
§ Lord Strathclyde
My Lords, I join all noble Lords who have spoken in thanking my noble friend Lord Norton of Louth for initiating this important debate.
I do not wish to sound discourteous but If do not plan to follow one or two noble Lords who have spoken in addressing the future of this House as I know that we can anticipate at least two major debates on that subject early in the New Year. However, I much enjoyed the comments of my noble friends Lord Renton and Lord Fowler. I very much believe that we are far better off with what we have than with another botched reform. I agree with my noble friends that we must all unite across the parties to stop Members of another place from forcing through an unworkable reform that will not give this House what it needs most of all; that is, strength, independence and authority.
My noble friend Lord Norton gives distinguished service to the House through his role on the Constitution Committee. We are lucky indeed to have a renowned expert on that subject as the committee's chairman, indeed, the establishment of the Constitution Committee in this House, and the extension of the role of the Economic Affairs Committee to cover the Finance Bill, seem to me to represent constitutional changes squarely in the best of British tradition. These changes were introduced with agreement after debate. They strengthen Parliament, improve scrutiny and control of the executive—an issue in constitutional politics stretching back to Magna Carta—and they are gradual, incremental, in the spirit of what went before, or organic, as my noble friend Lord Norton of Louth might put it. The historic strength of our constitution is that the ground rules are unwritten. They are able to evolve and to adapt in the light of experience and circumstance.
We learnt in the 17th century, from the brutal experience of revolution and civil war in every part of the kingdom and army dictatorship in England, lessons that others learnt from far more recent scars. The imposition of frameworks and examples that are right for them may not suit our own very different historical experience. Neither ideological theorising nor whole conventions of human rights lawyers outweigh tested experience or the flexibility in-built in our British constitution.
Too much that this Government have sought to do since 1997 has swept aside that experience. We have seen the ground rules of constitutional development 689 broken up. All those changes have been abrupt, prescriptive and ill thought through. The Government have arbitrarily cut across past practice and slavishly followed the passing fashions of the hour, with even the Deputy Prime Minister's bizarre fad for regional assemblies in place of counties dating back to the Saxon era. No wonder my noble friend Lord Norton says that we possibly have the makings of a constitutional crisis.
At times in the past few years, it has seemed as if anything was up for grabs except, of course, the office of the noble and learned Lord the Lord Chancellor himself. Given the distinction of the current holder of that office, whom we are honoured to have with us this afternoon, that may be understandable. None the less, it is striking.
Let us consider the extent of the change in the past five years, let alone the past 30. The union settlements have been set aside, and the common law of England has been undermined by a code of human rights that derives very little from national law. The usages of the House of Commons have been modernised, deeply entrenching the power of the executive, as the noble Lord, Lord Sheldon, recognised. That was expressed even more strongly by the words of the noble Lord, Lord Weatherill, to which I shall return in a moment.
Our own House has been purged more ruthlessly by a political hand than at any time since the 1650s. Powers that resided at Westminster have been transferred to Brussels with an almost missionary zeal. Noble Lords do not have to believe everything that my noble friend Lord Pearson says to believe that. Ministers have spun spiders' webs of regulation across the face of public life, so that no school, hospital or police officer may move without a rule book clumping behind them. We have seen a long and persistent march by the Home Office against some of our most precious personal liberties. On that last point, what price one's human rights, if a jury may be conditioned into thinking that one is a criminal before one's case is even heard?
That is only part of the Government's programme, but it is enough to indicate, as noble Lords have done in this debate, the scale of constitutional changes that have taken place in the past few years. At no stage have the Government stopped to ask the question raised by my noble friend Lord Norton, or to give an answer to the question, "What is the constitution for?". Has there been any coherence in the Government's actions, and what are their plans for the future? Indeed, even the word "plan" may be a misnomer, as so much seems to have been done by accident rather than design.
One needs only to consider the practice of devolution, which has become an expensive embarrassment to the people of Scotland. In a few minutes, in the forthcoming Statement, we shall witness the Government standing on their head and announcing a change to the number of MSPs and confirmation of a deal struck with the Liberal Democrats. The real test of devolution, however, will be during the next few years, as we see the development of different political complexions in the Scottish 690 Executive and at Westminster. All the stresses will not be seen for some years, but the problems that they bring will cast a long shadow.
The noble Lord, Lord Morgan, raised several important questions about the working of devolution. The decision-making powers of the new Parliaments and Assemblies are based in their own bodies, but the money to pay for them comes from the centre. That will inevitably lead to wastage of expenditure and the start of a begging bowl culture. None of those issues has been resolved.
Another point about devolution arose during the speech of the noble Lord, Lord Goodhart. Am I right in believing that the new Parliaments and Assemblies legislate with powers borrowed from this Parliament? In other words, their legislation is not primary legislation in the accepted form of that word, but secondary legislation, ultimately subordinate to the power and authority of this Parliament, if that power were to be used. If the noble and learned Lord the Lord Chancellor cannot give an answer this afternoon, I should be delighted to receive it in written form.
The noble Lord, Lord Holme of Cheltenham, mentioned that old chestnut, electoral reform. I wonder whatever happened to that wheeze. Perhaps the noble and learned Lord the Lord Chancellor will be able to tell us.
This has been a good and important debate, but I conclude with one further thought. Why, in this maelstrom of change, is another place the one institution that has not been changed, except to muddle it further, although it is the one institution that surpasses all others in importance? During the past few years, we in this House have fought a rearguard action against the ambitions of the Government, as set out in 1997, to master and control your Lordships' independence. Time and again, that spark of independence has been useful; it has saved Ministers from disastrous overreaching of executive power on issues as diverse as the surveying of e-mails, the defence of jury trials, the rights of electors to election addresses and the freedom from arbitrary detention. Time and again, proposals such as those have passed through another place as if they were as controversial as cranberry sauce at Christmas.
Noble Lords have only to accept half of what was said by the noble Lord, Lord Weatherill, or the noble Lord, Lord Sheldon, to know that there is something rotten in another place. My noble friend Lord Marlesford called it "disarming Parliament". That is a good phrase. We are all the weaker for what has happened in another place. It is no wonder that turnout at elections continues to fall.
Is it not essential that far-reaching and effective reform of another place is brought further to the top of the constitutional agenda? We on this side are ready to meet that challenge; we are ready to reduce the size of another place, to buttress the independence of Back-Benchers and Select Committees and rebuild some of the procedures for scrutinising legislation that have fallen into disuse. If we could expect some attention from the Government on that matter, an assurance 691 from the noble and learned Lord the Lord Chancellor would make this important debate even more worthwhile than it has been.
§ 5.27 p.m.
§ The Lord Chancellor
My Lords, the noble Lord, Lord Norton of Louth, is to be congratulated on securing the debate. It has made for an interesting and scholarly rundown to the end of term.
The noble Lord has consistently criticised the Government for having, as he sees it, no coherent theory of the constitution and no intellectually consistent strategy for reforming it. He also implies that without the former—a proper theory of the constitution—we should not even have dared to embark on the latter—the reform of the constitution. I fear that if purism of that kind had informed our approach there would have been none of the progress since 1997 that has been approved by so many of your Lordships today.
The noble Lord knows that, in the area of constitutional change, I believe that we can proceed by way of pragmatism based on principle, without the need for an all-embracing theory. I accept that we do not have an all-embracing definition of the constitution. As I told your Lordships' Constitution Committee, which the noble Lord chairs so well, I considered its own definition,the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual".as good as any I had read, but I do not endorse it as a government definition or as a personal definition. Nor does it address what the content of the constitution is, or any theory that may lie behind it.
The question whether any particular proposed measure should be regarded as constitutional is one on which a pragmatic view should be taken. The fact that a major part of our constitution is to be found in conventions illustrates that there is no all-embracing definition. Many important political developments have been effected since 1688 without any recourse to legal forms. The constitutional conventions describe and explain how our constitution works, lives and grows. Examples include the convention that the Sovereign acts only on the advice of her Ministers, the doctrine of collective responsibility, and that a government defeated on a Motion of confidence on the Floor of the other place should resign. Just as there is no all-embracing definition of the constitution, similarly there is no all-embracing definition of what is a "constitutional measure". Clearly, the Government have, since 1997, introduced a number of reforms that could be called "constitutional measures". An obvious such reform is the Scotland Act, with its ample devolution of legislative power to Scotland, which results in the Scottish Parliament passing primary legislation, not delegated legislation.
I do not myself see the absence of an all-embracing definition of "the constitution" as any problem at all. Our system of government and parliamentary supremacy 692 mean that there is no difference between our arrangements for the treatment of "constitutional" measures and any others.
Moreover, it is true that we have no written constitution—that is, written down in a single place—but we do not seem to have suffered as a result in comparison with other European countries. Our governance has been remarkably stable over the centuries and our institutions have been conspicuously durable.
It may disappoint the noble Lord but I am sure that it will not disappoint or surprise your Lordships to learn that we reject the argument that because we have no all-embracing definition of the constitution, we therefore should not introduce measures that beneficially change our constitutional arrangements.
The noble Lord criticised us because he claimed that the Government have no vision of what they want the constitution to be in 10 years' time, for example, and no consistent philosophy behind our reforms. Neither is true. All of our reforms were fundamentally informed by three principles. The first is that we should remain a parliamentary democracy with the Westminster Parliament supreme and within that the other place the dominant partner. Secondly—I say this with particular regard to the notable contribution of my noble friend Lord Sheldon—we should increase public engagement in democracy, developing a maturer democracy with different centres of power where individuals enjoy greater rights and where government is carried out closer to the people. I say to the noble Lord, Lord Holme: pluralism, yes, and decentralism, yes. Our third principle is that the correct road to reform was to devise a solution to each problem on its own terms. That was not carelessness or lack of consideration for possible linkages between different reforms; it was a recognition that that is the way that our constitution has always developed and should develop.
If, as the noble Lord, Lord Marlesford, contends, there was insufficient attention to the linkages, I should have to plead guilty because my chairmanship of the Cabinet committees concerned with the constitutional change programme was intended to prevent that from happening. So I would not plead guilty, would I?
I turn to devolution. Some claimed that that would mean the break-up of the United Kingdom. Not so. The powers of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly have been devolved from the Westminster Parliament. They could, in principle, be recovered at any time, however improbable that obviously is. Regrettably, in the case of Northern Ireland, it has been necessary for the time being to do so. But I believe that the union between Scotland and England has been strengthened, not weakened, by devolution.
The sovereignty of Westminster is preserved but Scotland and Wales have government that is closer to the people, which can respond to their particular concerns and which (for Scotland) does not have to wait for legislative time in a Parliament dominated by English interests. Moreover, the arrangements 693 established over the past three and a half years provide a robust basis on which successful long-term relationships can be built between the Government and the devolved administrations.
The detailed arrangements in each case reflected the historic circumstances of those nations. Scotland, with its long history of a distinct legal system, Church and education system, and the continuing need for separate legislation in many areas of life, has a Parliament and Executive that reflect that historical legacy with their high level of autonomy over the legal system, economic development, industrial assistance, training, transport, the police and the penal system. I was disappointed to hear the noble Lord, Lord Strathclyde, trot out the mantra that the constitutional reform programme was abrupt, prescriptive and ill thought out. On the contrary, it was well heralded, well debated—not least in your Lordships' House—and well thought out. My advice to the Conservative Party in Scotland is that if it wants to rehabilitate itself as a political force in Scotland, it should stop living in the past and be active in the Scottish Parliament and be seen to be helping to make devolution to Scotland the success that it is.
Wales has been much more closely integrated with England for much longer and it has a system which reflects that closeness. Its Assembly has taken over the powers of the Secretary of State, but cannot make primary legislation, unlike Scotland. Devolution, however, provides a transparent framework for the government of Wales and a focus for national identity. The Northern Ireland settlement, similarly, reflects the particular circumstances of the Province's history and politics in, for example, the specific provision for power-sharing.
It has been said by some that our system of devolution is asymmetrical. It is, and it was intended to be, so as to reflect the different circumstances of the different parts of the United Kingdom.
We have given the people of London—one of the great capital cities in the world—the opportunity for city-wide government to secure its strategic interests and the voice that it deserves. I say to my noble friend Lord Morgan that we are addressing the English question. We are offering the regions of England the opportunity to establish directly elected regional assemblies. Elected assemblies will have important strategic powers over regional issues, such as economic development, planning, housing and transport, but no region of England will have regional government forced on it. Just as devolution and the Greater London Authority were introduced only after the proposals had secured majorities in referendums, the same will apply to any directly elected assemblies in the regions of England.
The consequences of devolution will be to allow the United Kingdom to draw strength from its diversity, which should be embraced as a source of strength and innovation. Under the new settlement, the United Kingdom will be far more than the sum of its parts. A new Britain is emerging with a revised conception of citizenship that recognises the mix of cultures and traditions that form our Union.
694 I turn to the Human Rights Act. This immensely important measure, which I was proud to pilot through your Lordships' House, where it began, had a clear starting point: a pragmatic view of our constitutional arrangements. That view is of an accommodation between the state and the individual and of a new and dynamic co-operative endeavour that is developing between the Executive, the judiciary and Parliament. It is one in which each works within its respective constitutional sphere to give ever-developing practical effect to the values embodied in the Act. The Human Rights Act respects the sovereignty of Parliament. It enables people to pursue their human rights in their own courts. It will, over time, lead to a new culture of rights and responsibilities. The prophets of doom over that Bill have been proved comprehensively wrong, just as they have been over devolution. The union was strengthened, not weakened, by the Scotland Act. The Human Rights Act has not seen the end of civilisation as we know it. There has been none of the predicted chaos in the courts. It has not seen the rule of judges taking over from the rule of politicians. Nor has it seen the politicisation of the judiciary. The overriding theme which emerges from the impact of the Act in practice so far is one of balance: balance between scrutiny and deference; between the individual and the community, and between radical interpretation of statutes and declarations of incompatibility. The Act should be celebrated by all those who believe in our tradition of freedom under the law—as important a part of our constitution as any institutional arrangements.
The Freedom of Information Act is gradually being brought into force—I recognise not as fast as the noble Lords, Lord Holme and Lord Goodhart, would wish. But, from the beginning of this month, every government department is obliged to have a publication scheme, setting out the information it will routinely make freely available. On the immensely important subject of elections—fundamental to our democratic arrangements—we have established an independent Electoral Commission, answerable to the House of Commons, and not to government, to oversee the electoral system in this county.
Your Lordships were unlikely to have allowed a debate on the constitution to pass without reference to reform of this House, and your Lordships did not disappoint. We now have the report of the Joint Committee. I was amused, but not at all surprised, to hear that the chairman of that committee, my right honourable friend the Member for Copeland, had spoken frankly about the difficulty the committee had experienced in even identifying and commenting on seven options for the composition of your Lordships' House. No doubt your Lordships will be studying it carefully over the Christmas Recess, preparatory to our two-day debate on 21st and 22nd January. My noble friend Lady Scotland looks forward to opening that debate and I look forward to winding it up. The contribution of my noble friend Lord Sheldon to the debate gives a foretaste of how interesting that debate will be.
695 It may be that the executive's power over Parliament has grown excessively. But that is no justification for ill-advised reform of this House, under which instability between the two Houses might make the life of the executive of whatever political colour more difficult, but would be very damaging to the stability of Parliament. The noble Lord notes—I believe regrets—but accepts as inevitable that the other place no longer attracts the breadth of experience that it once did.. But I emphasise that this House, as an appointed House, does. So I agree with my noble friend Lord Morgan that for this House to be efficient it must add value to Parliament. That primarily must be through its composition—the kind of people that it attracts. The speech of the noble Lord, Lord Fowler, was, if I may say so, essential reading for our debate in January.
This has been an interesting debate. I conclude by saying that, despite the strictures of the noble Lord, Lord Norton of Louth, the Government believe that they will be remembered and approved by history for their record of constitutional reform. The noble Lord, Lord Holme, was generous enough to agree, as did my noble friend Lord Morgan.
We believe that the way in which we have approached these reforms is consistent with the traditions of the development of our constitution—ever pragmatic, evolutionary where possible, but not fearing to make major step changes where needed, as was the reform of this House. Our nation, our democracy and our constitution will, I hope, over time be seen to have been regenerated by our efforts.
§ 5.46 p.m.
§ Lord Norton of Louth
My Lords, this has been a very good debate indeed. I am most grateful to all noble Lords who have taken part. There have been some very thoughtful speeches from all parts of the House, with several noble and scholarly Lords participating.
Your Lordships' House is an ideal arena in which such an important debate can take place. I very much hope, as I said in opening, that this prompts further. I am especially grateful to the noble and learned Lord the Lord Chancellor for responding so fully to the debate and for confirming my interpretation of the Government's position. The noble and learned Lord has been extremely open in his response and—perhaps I may say—in so doing has given me a great deal of ammunition for the future.
My Motion calls for Papers. When I have previously initiated debates in your Lordships' House, whether on the burden of bureaucracy on universities or on the case for parliamentary reform, I have made the point that the last thing that I want is more papers. Today is different. This is a subject on which I should like to see more papers. However, I shall abide by the conventions of the House. I shall do so for two reasons: first, to avoid apoplexy on the part of the Clerks: and, secondly, because conventions constitute an important component of the constitution of your Lordships' House—a constitution worth defending.
696 My Lords, I beg leave to withdraw the Motion for Papers.
§ Motion for Papers, by leave, withdrawn.