Constitutional Convention Bill [HL]

Friday 11th December 2015 Lords Chamber

Committee

11:55

Debate on whether Clause 1 should stand part of the Bill.

[Lord Steel of Aikwood (LD)]

My Lords, I was not able to be present at Second Reading and wish to say a few words on the proposal that Clause 1 stand part of the Bill. I congratulate my noble friend Lord Purvis on introducing the Bill. He is also my House of Lords office mate, so I know how much work he has put into this.

My main point is that those of us who attended the proceedings on the Scotland Bill earlier this week must have been struck by the number of speakers in all parts of the House who regretted the fact that we continue to have piecemeal approaches to constitutional reform, and by the number of noble Lords in all parts of the House who begged the Government to reconsider their rather supine attitude to the whole question of a constitutional commission or convention.

We not only have the Scotland Bill proceeding through the House without knowing what the financial arrangements are between the two Governments but the row in the other place over English votes for English laws. We also have the Constitution Committee of this House, under the chairmanship of the noble Lord, Lord Lang, and the constitution committee of the other House, under the chairmanship of Bernard Jenkin. We have also had the all-party group on further decentralisation, of which my noble friend is a key member, and we have the other all-party group under the noble Marquess, Lord Salisbury, arguing very effectively for a new Act of Union. On top of all that, we await the deliberations of the noble Lord, Lord Strathclyde, on the relationship between the two Houses. And so it goes on and on, piecemeal approaches to constitution making—not to mention all the outside work that has been done by people such as Professor Bogdanor, the UCL Constitution Unit and many others. All the time, the Government seem just to guddle through on constitutional reform. That is a great mistake. Therefore, I strongly support Clause 1 and hope that the Government will give a positive response to it.

Clause 1 agreed.

Debate on whether Clause 2 should stand part of the Bill.

[Lord Grocott (Lab)]

My Lords, I certainly have no intention of trying to remove Clause 2 from the Bill but this gives me an opportunity to seek clarification on what it might involve. I did not speak at Second Reading although I have, of course, read Hansard. I am only going to make a few comments that could be construed as a Second Reading contribution. The Bill as a whole has admirable objectives and, I am sure, the best of motives. However, I have severe doubts, to put it mildly, about the practicality of being able to sit down with a rather ill-defined group of people and reach a decision within about 12 months about a document that would effectively stand as the constitution of the United Kingdom and the devolved legislatures.

I will leave that comment aside because I want to concentrate on one area where perhaps there could be some clarity—Clause 2—in which, on my reading of the Bill, there is not clarity at the moment. Clause 2(c) says that the convention must consider,

“the reform of the electoral system”.

My question is: which electoral system? In a way, this illustrates the problem with the Bill, that unless there is clarity and a better definition of precisely what the convention is going to look at, the scope for endless debate and discussion is pretty limitless.

There are, I think, currently seven different electoral systems operating within the United Kingdom. No doubt someone who is more of an anorak on the subject than I am could find some more. But as far as I can tot them up, we have the system that applies in Scotland and Wales for parliamentary elections for the devolved Parliament and Assembly; obviously, there is first past the post for general elections in the country; there is the European electoral system; there is the Scottish local election system; there are systems for the mayoral elections; and there are different procedures in Northern Ireland. So I think it is legitimate—and I hope not seen as overly critical—to ask: which electoral system are we supposed to be reforming under this clause?

My starting point is that I hope there is no suggestion that there is going to be any attempt within this convention to look again at the electoral system for the United Kingdom Parliament, not just because I happen to be strongly in favour of the present system but because, as we all know, that view is shared by the vast majority of the British people. Asked as recently as three years ago, “Do you favour the first past the post system?”, they said by a majority of two to one that they certainly did. The response was in the affirmative for every constituency in the United Kingdom apart from about six; it was certainly in single figures. I do not think anyone would seriously suggest that we should have another referendum on that within a generation. Indeed, I know that the people who took part in that discussion, debate and referendum all acknowledge that it was, to coin a phrase, a once-in-a-lifetime opportunity. I tend to take those commitments seriously, as I do as far as the Scottish referendum is concerned, by the way, but let us not go there at the moment.

If it does not mean the general election system, as it surely cannot—we cannot revisit that two or three years after there has been such a conclusive decision by the British people—which electoral system does Clause 2(c) refer to? Perhaps we could have clarity on that, which would help the clarity of the Bill overall. I look forward to hearing the response to that.

[Lord Wallace of Saltaire (LD)]

My Lords, it is very good to hear the noble Lord, Lord Grocott, reassert yet again how deeply conservative—I hesitate to use the word “reactionary”—he is on all matters constitutional. I had expected him to object to “reform” rather than “electoral system”.

Clearly, I appreciate that a Labour Party which pursued in this recent election a campaign based on the idea that it could win a majority with 35% of the vote and was then defeated by a Conservative Party which won a majority of the House of Commons on 37% of the vote should want to have a vested interest in our current electoral system. If we are talking about constitutional reform overall, we need to talk about the balance in different parts of the United Kingdom. Perhaps one might then talk about, as he says, the range of different electoral systems that we now have.

During the AV referendum a very effective no campaign was led by Matthew Elliott, who is now leading the campaign to leave the European Union—with good right-wing credentials and a lot of right-wing funding. I am sure the noble Lord, Lord Grocott, is happy about that. But if we are going to talk about the rapidly changing and moving relationship between the different parts of the United Kingdom—for example, what is happening in local government in England concerns many of us on these Benches and is another dimension of this—we need to look at the overall pattern. That clearly would need to include some question of which electoral systems are appropriate for which levels of elections. That is the only point that I am making.

[Lord Grocott]

I am very sorry that the noble Lord no longer speaks in an official capacity on the Liberal Front Bench. I do not know whether he has been demoted or has voluntarily moved to the Back Benches or is moonlighting; I am not quite sure what the position is. It is a novel concept from the Lib Dems—I can understand in the light of the recent general election why they may need the odd novel concept—to say that for them it is a reactionary position to respect the views of the British people as expressed in a referendum. I regard that as a very progressive position. Although I do not mind in the slightest being accused of being a reactionary on the constitution from time to time, it might be at least reassuring if we heard occasionally from the Liberal Democrat Benches, whether officially or unofficially, that they do respect the wishes of two-thirds of the British people in a nationwide referendum.

[Lord Forsyth of Drumlean (Con)]

My Lords, I did speak at Second Reading. The main point I made was that I thought the Bill was far too ambitious. I am very disappointed to see that the terms of reference in Clause 2 remain pretty well as they were at Second Reading, although I thought the noble Lord said that he would consider the fact that there might be quite a lot to do.

The Economic Affairs Committee of this House spent four months looking at the single issue of the financial consequences of devolution in the United Kingdom and produced an excellent report, which has had quite an impact in Scotland and beyond in making people aware that it is necessary to agree and know the fiscal framework before you set in place further structures of devolution. I do not quite know how it would be possible for this constitutional convention not only to consider,

“the devolution of legislative and fiscal competence to and within Scotland, England, Wales and Northern Ireland”,

but deal with,

“the devolution of legislative and fiscal competence to local authorities within the United Kingdom”,

and,

“the reform of the electoral system”,

and,

“the reform of the House of Lords”,

which we have spent more than 100 years discussing. Furthermore, I looked for the kitchen sink, and the kitchen sink is there, described as,

“constitutional matters to be considered in further conventions, and … procedures to govern the consideration and implementation of any future constitutional reforms”.

The convention has to do all this within a year. It is ridiculous.

Who will do this? The convention will be composed of representatives from,

“registered political parties within the United Kingdom”.

I think there are about 600 registered political parties in the United Kingdom, a point that was made very eloquently by my noble friend in winding up at Second Reading, but that is what we are still left with in Clause 4, along with representatives of “local authorities” and,

“the nations and regions of the United Kingdom”.

In addition:

“At least 50% of the members of the convention must not be employed in a role which can reasonably be considered to be political”.

First, finding such people might be difficult. Secondly, there is the experience that we have had with the Smith commission. One has only to read the Committee debate so far on the Scotland Bill to see the mess you get into when you have a group of people working out what they would like to happen without advice and without the ability to translate that into legislation.

It is also quite an impertinence to suggest that issues relating to reform of the House of Lords are matters that should be decided outside this House and outside Parliament. The noble Lord chuckles, but it would be extremely difficult for people to be educated on and understand the procedures of this House and achieve everything within a year. Although I very strongly support the idea of a constitutional convention with the limited purpose of sorting out the mess that we have brought ourselves into because of piecemeal constitutional reform, we have already determined what we think about House of Lords reform. We spent a large slice of the last Parliament discussing it. As for the noble Lord, Lord Grocott, I have always thought of him as a radical and not a conservative, but a radical with common sense, intellect and a practical frame of mind.

It just seems to me that the noble Lord, Lord Purvis, is putting forward a Bill that will discredit the idea of having a constitutional convention and make it very easy for those of us who support having one to be brushed aside by the Government on the basis that what is being proposed in the Bill is unrealistic. I very much hope that Clause 2 does not stand part of the Bill as drafted. If it does, the Bill will have to be consigned to the wastepaper bin, for it does not offer a way forward on determining our constitutional arrangements.

[Lord Kerr of Kinlochard (CB)]

My Lords, I very much agree with the first two points made by the noble Lord, Lord Steel of Aikwood. It was very striking in our Scotland Bill debate how general is the consensus in this House on the need for a convention and how general is the concern that proceeding piecemeal is a very bad idea. It has got us into a lot of trouble.

I oppose Amendment 1, which I think is what we are trying to do. I am against Amendment 1—

[Lord Forsyth of Drumlean]

We are discussing Clause 2.

[Lord Kerr of Kinlochard]

The stand part debate? Very good. I support the Bill that the noble Lord, Lord Purvis of Tweed, has put forward, and congratulate him on doing it. I agree with the principle of it, but I do not agree at all with Clause 2, which seems far too long and detailed. We need to stop, reflect and think about principles. We need to start with a long period of reflection. I am also against Clause 3, which sets a timetable. Like the noble Lord, Lord Forsyth, I do not think it a timetable that could possibly work.

I was secretary-general of a convention which sat for 16 months, with four or five months of reflection, four or five months of working groups and then a drafting session at the end. We were overambitious and tried to do too much, and then were shut down by the Governments, who refused to extend our timetable. These were both mistakes. The idea of a period of reflection—which was President Giscard’s idea to begin with—was a very good one. That is how conventions should start. Clause 2 is overprescriptive in setting out the tasks that the convention should attempt—we are overdefining here.

My terms of reference would be very simple: “The convention must consider the governance of the kingdom, the relationships between its constituent parts and appropriate devolution of legislative and fiscal competence”. I would go back to principles. I do not think it a good idea to consider devolution to local authorities, as Clause 2(b) suggests. That is a secondary issue, and there is no reason in my view why there should be absolutely standardised devolution to local authorities across the kingdom as a whole. It could vary in the constituent parts.

On reform of the electoral system, I echo what the noble Lord, Lord Grocott, said. It seems to me that there is no longer a single electoral system: there are a lot of electoral systems. I have no reason to think there should be a standardised electoral system. It is not necessary for the system for local elections in Scotland to be exactly the same as that for local elections in England, for example—if such was the agreement of a convention starting from principles, Parliament should be invited to devolve generally.

I absolutely do not think that reform of the House of Lords is appropriate to a convention that is looking at principles. The composition of the House of Lords should be a function of the House of Lords: one needs to decide what the House of Lords is for. A constitutional convention ought to fetch up consideration of what cements the union—what are the appropriate ways of holding the union together? In my view, there is a considerable role for the House of Lords in that. But it would be a mistake to consider reforming the House of Lords at the same time as examining the fundamental principles, before you have reported back to Parliament and the country about those principles and discovered whether they are to some extent acceptable. There is too much bottom-up in here. We need to start with thinking about general principles, rather than getting into too much detail.

12:15

The case for the convention gets stronger every day. I agree with the examples that the noble Lord, Lord Steel of Aikwood, gave of the mistakes we are making by proceeding piecemeal, but he was extraordinarily modest in his list of those mistakes. Where was EVEL? EVEL is a major constitutional change made by adjusting the rules of procedure in the other place, ignoring this place’s request by a very large majority for consultation on the matter. That is a very odd way to change the constitution of the country.

The noble Lord, Lord Steel, said that it seems that next week, we will receive proposals from the Government—or perhaps it is the Conservative Party, I am not yet quite clear; certainly it is from only one constituent part of those represented here—on how the functions of the House of Lords should be further reduced. On Monday, we are to consider whether it is appropriate to regard the EU referendum Bill on the franchise for a referendum as a financial measure that is therefore not amendable in this House. If the EU referendum Bill is a financial measure, what, among the things we consider, is not? What can we amend? I differ with my friend, the noble Lord, Lord Forsyth, on the substance of the EU referendum Bill, but on the issue of financial privilege, I would be very surprised if he did not on Monday find it hard to accept the new definition of how financial privilege is to be read.

The Scotland Bill, which the noble Lord, Lord Steel, mentioned, is a classic example of what a mistake it is to make constitutional reform on the hoof. I would have been in favour of a devolution max option on the ballot paper in Scotland. There was and is a case for more devolution to Scotland. That option was turned down, deliberately rejected, rejecting the chance for mature reflection and definition of devolution max; instead, it was defined on the hoof with the help of a journalist from the Daily Mail, obliging a commission simply to write down the vow and tell us what it means, and then producing a Bill to turn the vow into law which is scissors and paste—taking bits of the Smith commission and simply writing them into law. We know what our Constitution Committee thinks of that; we know what our Economic Affairs Committee thinks of that.

I found the debate this week extremely painful, because it was not clear to me that the Government understood what was wrong with the Bill. I was very sad to see the Opposition Front Bench take exactly the same position—that because it is in the Smith commission, it must be there in exactly these words. It seems that the words of the Sewel convention may not be changed; they must be written into the Bill, even though we all know that if you make what is normal—the “normally” in the wording of the Sewel convention—justiciable you set yourself up for endless debate and difficulty. We need to go back to principles. We need to get out of this habit of making it up on the hoof and then trying to adjust the statute book to match it.

[Lord Forsyth of Drumlean]

Did the noble Lord notice that this very week, the Scottish Parliament sought to argue that the Sewel convention would apply to the Trade Union Bill? The Presiding Officer took the view that it would not but the First Minister indicated that she plans to have a word with the Prime Minister about this, arguing that because there are trade unions in Scotland, there is a Scottish dimension and therefore there should be some kind of legislative consent procedure. Does that not underline how important it is to define what is meant by the Sewel convention and to have legislation that is clear?

[Lord Kerr of Kinlochard]

I entirely agree with the noble Lord, Lord Forsyth, and look forward to agreeing with him again on Monday when the issue for debate is financial privilege.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, first, I concur with and emphasise the point made by the noble Lord, Lord Kerr, about the need for this convention. I will not go through that—others made the point much more strongly than I could. I just want to make sure that that is clearly on record.

On the second issue, electoral reform, I think my noble friend Lord Grocott misunderstood whom he was addressing. He obviously thought he was addressing the noble Lord, Lord Wallace of Saltaire, but he will recall that there was another “Lord Wallace” in the Government before the election, and that he was in favour of this House moving to reflect the votes at the last general election—at which the Liberal Democrats got some 8%. Obviously, the fact that my noble friend thinks that the noble Lord, Lord Wallace, has moved is simply because it is a quite different Lord Wallace.

The only other issue is a serious one, touched on by the noble Lord, Lord Kerr, about the one bit of electoral reform that I hope will be considered very considerably: the votes of 16 and 17 year-olds. It seems the Government will play games over whether it is a financial measure, but if this House cannot, along with 16 and 17 year-olds who put their opinions forward, take a view on that, then I want—

[Lord Forsyth of Drumlean]

Surely the noble Baroness would accept that this matter was decided by the clerk in the other place and not by the Government.

[Baroness Hayter of Kentish Town]

Indeed, but I understand that the Government were very happy to overturn the votes of this House, which decided that 16 and 17 year-olds should be able to vote in the referendum. There are bits of the electoral system that are worth looking at, if only because the Government seem unable to hear either the will of this House or the views of 16 and 17 year-olds.

[The Parliamentary Secretary, Cabinet Office (Lord Bridges of Headley) (Con)]

My Lords, I will make just a few, short points. First, I again congratulate the noble Lord, Lord Purvis, on this Bill. I always find it interesting to discuss these points. I am grateful to the noble Lord, Lord Steel, for being here and heed what he and the noble Lord, Lord Kerr, said. I will not repeat all the points I made at Second Reading. All I will say, briefly, is that this very short interchange shows that we will probably need a convention about the convention because it is so clear that we cannot quite agree on any of the terms. My noble friend Lord Forsyth called it ambitious. I think that is mandarin-speak for “virtually impossible to agree” on all these points. He said he was looking for the kitchen sink. We have the kitchen sink and, in the next debate, I think we are about to discuss the wiring and plumbing.

[Lord Purvis of Tweed (LD)]

It is probably fair that I respond to some elements of this debate, and in so doing I thank, first, the noble Baroness, Lady Hayter of Kentish Town. It is a pleasure to follow her and I also thank her for the throat pastilles that she gave me. It was a relief to see that this could be a relatively short Committee stage, so my voice can survive it. However, I can rely on the noble Lords, Lord Grocott and Lord Forsyth, to make sure that it is fully debated, in this “Second Reading in absence” debate that we have just had, in many respects.

I turn to the specifics raised by the noble Lord, Lord Grocott, before turning to some of the wider aspects that the noble Lords, Lord Kerr and Lord Forsyth, raised. It is a fair observation to say that the Bill states the need for reform of the electoral system. The noble Lord, Lord Grocott, is always very welcome to attend the all-party group, which considered the intention behind this. He might attend it as a radical, as the noble Lord, Lord Forsyth, said. There will be political theorists studying Hansard, so if the noble Lord, Lord Forsyth, is describing the noble Lord, Lord Grocott, as a radical, I need to go back to my political study books. The all-party group considered the number of systems that we have, including the changes brought forward in the Scotland Bill, whereby the Scottish Parliament will be responsible for its own franchise and mandate—and, in addition, how they all interact.

The fundamental feeling was that it was right that a convention should consider the interaction of all the electoral systems from the point of view of the voter and not from that of the institutions. In many respects, some of the debates on the role of Parliament and the institutions have been from the perspectives of the institutions themselves and not from that of voters. I see that the noble Lord, Lord Grocott, is itching to intervene, and I shall give way in just one moment. It is about that interaction, and how they operate; it is about how voters in my former area, for example, see two Parliaments, one elected on a proportional basis in Scotland and one here, where, as my noble friend Lord Wallace said, the Government were elected on 37% of the vote. The noble Lord asked me whether I referred to the electoral system of the United Kingdom Parliament, but that can only be a partial system, unless he is referring to the by-elections of hereditary Peers in this House.

[Lord Grocott]

Surely nothing in the noble Lord’s proposal is from the perspective of the voter rather than the institution. There is surely no more effective way in which to discover the perspective of the voter than to hold a referendum whereby the voter gives the clearest possible response.

[Lord Purvis of Tweed]

Clause 4 indicates strongly that the composition of the convention is to be citizen- led. If the thrust of the proposals is to consider how the systems that we operate interact, including the systems of this Parliament—and, if we are moving towards reviewing the functions of this House, how it is subsequently elected—it is legitimate that it is part of a constitutional convention that is citizen-led.

I widen this now to the overall aspect. The noble Lord Forsyth, asked if I had reflected on the Second Reading. I had reflected, first, about those who said that the remit was far too broad and therefore that it was impossible for it to be successful and those who said that it was far too specific and did not even address first principles. I reflected, and I think the broad areas of the terms of reference meet most of the areas where the debates that we have had over the last month have drawn real focus on the need for consideration of how all these reforms are being held together. So yes, for devolution and for legislative and fiscal competence, there is the Scotland Bill, although it needs to make its passage. There is the Wales Bill and there are changes within England—and then, of course, there are the legislative changes to taxation for Northern Ireland. None of the thinking behind this proposal would set any of that back. The whole fundamental reason that the convention is necessary is there is no thread holding everything together. That has been a consistent element of all the debates on the Scotland Bill, for devolution in England, for the Northern Ireland taxation Bill, which this House considered, and with the forthcoming Wales Bill. The fact that there have been considerable delays to the presentation of the Wales Bill shows that there is not that coherence across the whole of the piece.

When it comes to the devolution of legislative fiscal competence in England, it is the same point. Part of the difficulty has been looking at the fundamental principles of the areas to be reserved, what is the right tax balance et cetera. This is again rehearsing the Second Reading debate, but it is necessary—

12:30

[Lord Forsyth of Drumlean]

On the point about the scope of Clause 2, will the noble Lord tell the House how many hours and how many meetings he anticipates would be required to cover this ground within a year?

[Lord Purvis of Tweed]

I cannot set that. Legislation cannot set that. Legislation can set what is a reasonable time for these areas to be considered, the political imperative about why they should be considered within 12 months and that the Government should report on them. Fundamentally, we should be going into the next UK general election with more consensus about the constitutional future of our union rather than with it fractured into a piecemeal approach. My noble friend Lord Steel called it a guddle; we will be having five years of guddle. A convention can consider these aspects within 12 months, and it is reasonable that a Government should have a timeframe in which to respond.

[Lord Skelmersdale (Con)]

Before the noble Lord moves on to his next point—I am sure he has many more—does he agree that this convention, this conference, or whatever it is, can talk until the cows come home about one aspect of what we have in Clause 2, namely, the electoral regime for the European Parliament? Surely that is fixed by the European Parliament.

[Lord Purvis of Tweed]

We can follow two models. It can be very short, like the Smith commission, which perhaps on reflection has been too short and has not considered the wider view of the people, or it can be like the Airports Commission. I would not use the Airports Commission as the model for the constitutional convention. We can do better, and I hope the Government agree on that point.

The noble Lord, Lord Forsyth, tabled an amendment to the Scotland Bill for a convention to review the Bill, but it was late in the day, so he did not move it. I am pleased to see that the wind is back in his sails today at an earlier hour. If we are to have a convention, and it is to be citizen-led, it is not in any way an impertinence, as the noble Lord, Lord Forsyth, said, for the people of this country to consider what this second House does in Parliament. It is not an impertinence to involve the people of our country in considering a revising Chamber’s role and how its functions should be set.

[Lord Forsyth of Drumlean]

I did not plan to interrupt again, but as the noble Lord referred to me, what I said would be an impertinence was for an outside body to tell us how our rules and procedures should operate. The noble Lord, Lord Kerr, made the correct point. The constitutional convention should look at the high level—at the role and function of the House. Procedures are a matter for this House.

[Lord Purvis of Tweed]

There is nothing in Clause 2 that would prevent that. On that point of broad consensus—

[Lord Kerr of Kinlochard]

The trouble with overspecifying, as Clause 2 does, is that you require people, before they report, to have considered everything. The first report should be about principles. Perhaps that would be the only report and the convention would never meet again, or perhaps it would, but when it comes to things such as the House of Lords, it should be considering them on the basis of principles that have by that stage, one hopes, been debated across the country, in this place and the other place, and have achieved a degree of consensus. Then it would consider the role of the House of Lords in the union, how can it best discharge that role, and how can it best be composed to do so. If you put on your original shopping list that, before the convention tells us anything it must make sure that it includes proposals to reform the House of Lords, you are making a terrible mistake. You would do much better to stick to the high ground of principle.

[Lord Purvis of Tweed]

As a Liberal Democrat, I never want to move away from the high ground of principle. The noble Lord seeks to bring me down to lower land.

Fundamentally, I do not believe we are that far apart. Of course a convention will have to start with consideration of what the principles of this union are. I rehearsed that argument at Second Reading and I need not do so again. Equally, though, I know the Government are taking forward a programme of reform, much of it based on cross-party consensus, with legislation and proposals, and I would not wish to set those apart. As I said, the fundamental difficulty is over how all those are being held together under the principles that the noble Lord indicated. I believe that setting a framework of specific areas that the convention should cover, within the overall aim of trying to secure a holistic view of what the union is for, is captured within Clause 2.

Clause 2 agreed.

Amendment 1

Moved by

[Lord Hughes of Woodside]

1: After Clause 2, insert the following new Clause—
“Draft written constitution
The convention shall produce a draft written constitution on the powers and functions of the House of Commons and the House of Lords.”

[Lord Hughes of Woodside (Lab)]

My Lords, if ever I had any doubts about the need for a written constitution, the very short debates that we have had on Clauses 2 and 3 stand part have proved the need for it. We have heard in miniature today a repeat of the hundreds of hours and millions of words spent on reform of the House of Lords. The idea that there can be some form of citizen-led consensus is, frankly, nonsense. We are faced with a constant clamour for this Chamber to be an elected House. I have no objection to that in principle—in fact there is much to be said for it—but what has not been discussed by any method is the relationship between the two Houses once we have an elected House. You cannot have two elected Houses without their powers being specifically defined.

As an example of how things seem to have changed, we recently had a little kerfuffle—a stooshie, as I like to call it—over tax credits. This House decided to reject the statutory instrument, and the Government immediately had a knee-jerk reaction and set the noble Lord, Lord Strathclyde, to look at how things should be changed. The fact that the Chancellor of the Exchequer accepted in their entirety the views of this House on tax credits validates the right of this House to reject the statutory instrument. Perhaps the best thing we could do is to say that the noble Lord, Lord Strathclyde, should be stood down.

Much has been said. Constitutions; elections; the number of possible ways of voting, such as first past the post and proportional representation; the possibility that this House might be indirectly elected according to the proportion of the votes cast at the general election—all these have been discussed, and again there has been no consensus. I think that the clamour for election means that it is now inevitable, but one has to realise that the moment when the first elected Member enters this House, the whole dynamic will change. Perhaps it will change even before there is an elected House, because this House will then have the legitimacy to challenge fiercely the House of Commons, in a way that it has never challenged before. The only way to ensure that the supremacy of the House of Commons is maintained is by a written constitution.

Given the earlier debate about the difficulties caused by the number of tasks that this convention has to do, I hesitate to add yet another; nevertheless, I think it is essential. This set of affairs is very interesting but I believe very strongly in a written constitution. Of course, there is no guarantee that it would solve all the difficulties between the two Houses, especially two elected Houses. Implicit in my proposed new clause is the suggestion that, if there is to be a written constitution, there has to be a mechanism for change, and that takes us to interesting places and possibilities.

It is interesting, for example, to look at the United States constitution, which dates from March 1789. Since then, 37 amendments have been proposed, 27 of which have been ratified. Interestingly, the 27th was first proposed in 1789 but was never actually ratified until May 1992 —200 years later—so I suppose that one could argue that written constitutions are no short-term issue.

Of course, written constitutions can be overturned and manipulated. The most notorious example of manipulation of a constitution was what happened in the old South African Parliament before the end of apartheid. Written into the South African constitution were what we call entrenched clauses, which could be changed only by a two-thirds majority of both Houses of Parliament sitting together. The Government of the day wanted to remove the right of Cape Coloureds to be on the common voters’ rolls in Cape Province. They argued that they had a mandate for change and therefore they tried to amend the constitution by a simple majority in each House.

The courts in South Africa—which, by the way, have been seen as a bastion of freedom—ruled that that was not possible, so the Government came up with the wheeze that they would declare that the elected House of Parliament would become a high court of Parliament and would then rewrite the constitution. Not surprisingly, that, too, was rejected. The South African Government then simply increased the size of the Senate, increasing the numbers that could be nominated to it, thereby getting the two-thirds majority that they desired. As a matter of insurance, they increased the size of the Appellate Division of the legal system with their own placement to make sure that the law did not interfere again with what they were doing. In fact, they did not need to do that because the courts accepted that that was possible.

A written constitution is certainly necessary. If you think that the clamour—I call it a citizen-led clamour—for change is bad now, can you imagine what will happen when the second Chamber is elected? There will be incessant demands for change, should there be a clash, so a written constitution is an absolute necessity. I suspect that we are going to get constitutional change sooner rather than later, and when that time comes it is essential that the new, elected House of Lords, for want of a better phrase, and the elected House of Commons do not spend their early days squabbling about constitutional matters—about who has the right to do this and who has the right to do that.

There are far too many cynics around today who denigrate not just our parliamentary and political systems but the whole idea that politics has anything to offer. Nothing would give them more joy than to see a new system involved in arguments about who had the right to do this, that or the other. Although I do not like a written constitution—I gather that the noble Lord, Lord Kerr, has the same view—I am absolutely convinced that it is necessary for the good of the country and the future. I beg to move.

12:45

[Lord Kerr of Kinlochard]

Americans are always very surprised that we get by without a written constitution. That we could create a Supreme Court and lose the Law Lords from this House without any sort of supermajority or national consultation, merely by votes of these two Houses, baffled them. I have always been against a written constitution and feel that the arguments against it grow with devolution.

The difficulty posed by a written constitution, once you have got one, is that of amending it when new circumstances arise. If we had a written constitution in this country now, with devolution where it now is, we would be like the United States in 1787: we would be obliged to make sure that there was at least a majority of the constituent parts of the kingdom in favour of the change. If the majority was a simple majority, with three to one in favour, we would have a recipe for difficulty in the future. If it was four to zero, we would have a recipe for deadlock in the future. Although I have been inveighing against the Government for being a little over-flexible in their approach to constitutional change, flexibility is a good thing and I am therefore against the amendment.

I served the convention in an official capacity and three Members of this House were genuine members of that convention. They would all have believed that the noble Lord, Lord Purvis, is correct and that we should have a convention on this, so having me working for them did not turn them absolutely off the idea of a convention. The worst mistake we made—I can say that I argued against it—was what we called our product, which was a draft treaty between individual nation states and began with listing the signatories to the treaty, such as the King of the Belgians and so on. On the title page, we wrote that it was a “Draft Treaty establishing a constitution for Europe”. That was a great mistake, because it was not; it was a treaty. The idea of a written constitution for Europe was offensive to quite a few people. It was a terrible mistake. Flexibility is, on the whole, a good thing—though it can be carried too far, as recent events in this country have shown. Therefore, I speak against this amendment.

[Baroness Hayter of Kentish Town]

My Lords, I am not absolutely certain that the Labour Party has a position on this. However, as it has never called for a written constitution, I am going to take it that the Labour Party is against a written constitution—or at least, I am. As I said at Second Reading, I had a lovely cartoon from the New Yorker showing bewigged, 18th-century gents writing the American constitution and then putting at the end, “And no one will ever alter this”.

I do not support my noble friend on this amendment. However, had he used the word “concordat”—something to get the relationship between the two Houses agreed, which in some sense goes to what the noble Lord, Lord Forsyth, said earlier about function; that we should agree what the role of the two Houses are—I would have thought that this was a brilliant amendment. The idea of us having that serious conversation is one that I absolutely support. There are really big questions about that. It is not just about whether we get to vote on statutory instruments. It is about the relative roles in that and how often it is used. Particularly when we think of our size, if we become smaller and still have no retirement age, we will have an increasingly older and smaller group of people doing that diligent work on statutory instruments. Those are important discussions. I like one part of the amendment, which is to give some serious thought as to the function of both Houses. But please, while we may not be bewigged we should not be setting in stone the way in which we work in the short term.

[Lord Bridges of Headley]

My Lords, I do not think it will surprise noble Lords to hear, at 12.50 pm on a grey Friday, that the Government do not support a written constitution. I agree much more with the noble Lord, Lord Kerr. He spoke very eloquently about the need for flexibility. Of course, as noble Lords will know, this country did once try a written constitution—in 1653, if memory serves me right. It lasted for about four years with the Instrument of Government. It was not a particularly happy time in our nation’s history and we have survived quite well without one for getting on for 400 years. As the noble Lord, Lord Kerr, says, we have flexibility borne out of various parts of our legislative past—the Magna Carta, the Bill of Rights, the Act of Settlement and the Great Reform Act. Parliament has been adding to that canon, and advancing and evolving the constitution for centuries. That is a fundamental part of our polity.

On the specific clause, as my noble friend Lord Forsyth made clear, this is adding even more to the work of the superhuman convention, manned by the world’s constitutional experts, who will be working frantically to get it all done. I would just point out that were this Bill to be passed, there is no detail on the scope or content of the written constitution. As this short debate has highlighted, we are not entirely clear what would be included and what would not—maybe the entire process of the convention itself. Furthermore, it is not entirely clear that the Secretary of State would be able to make any further provision or provide any guidance on this constitution when it was presented, which was a point made so eloquently by my noble friend earlier. The convention would have superhuman powers not only in the sense of its ability to come up with solutions, but in the effect that it would have. Therefore, I fear that the amendment would not enhance the Bill but make it even less feasible.

[Lord Wallace of Saltaire]

My Lords, I would just reflect on how solid is our base and how flexible is our constitution. From what I have been reading and hearing about the Magna Carta this year, I understand that two clauses of it are still in force and 75 are no longer in force. If one reads the Bill of Rights carefully, there is a very substantial anti-Catholic element, some of which is actually still in force, but has been weakened. The things that we refer back to as the foundations of our constitution are in many ways deeply inappropriate and we get by by ignoring them.

[Lord Bridges of Headley]

I heed what the noble Lord so rightly draws out. My point would be that these are the foundation stones on parts of which we have been building over the centuries.

[Lord Purvis of Tweed]

My Lords, I enjoy the interactions with the Minister on this aspect, although we do not see eye to eye. I think he was referring to the previous constitutional history of England when he said “this country”. It is worth mentioning that. We often have to reflect on the previous errors of England in the constitutional history of these nations—plural.

I understood the amendment to require, as the noble Baroness, Lady Hayter, indicated, a more codified relationship between the House of Commons and House of Lords, and that it was not a consideration of a wider British written constitution. But I respect the extensive experience of the noble Lord in the other place and in this House, and share many of his views about the need for a more codified relationship in respect of our governance. It is interesting that those who now seem to set their faces against that—primarily the Government—are happy to institute processes that do not necessarily have any end or focus at all.

One example was the debate we had on incremental and gradual change of the House of Lords. Any objective observer of that process would feel that what the Minister said was a criticism of my Bill, but it could be applied exactly, in fact more so, to the process of reform that his own party is putting forward. That is amplified by the fact that the noble Lord, Lord Strathclyde, has proposed that external people should interfere in the procedures of this House, a point made by the noble Lord, Lord Forsyth. It is probably more appropriate for the Government to adopt a slightly different tone, because there is now justification for moving towards a more codified system of relationships between the nations and our governance.

I shall go back to the point made by the noble Lord, Lord Kerr. Incidentally, if the Minister thinks that a superhuman expert is required for the running of such a convention, the more the noble Lord, Lord Kerr, contributes to that debate, the better. Much as he may indicate that he is ruling that out, I cannot think of anyone more qualified or who could give me greater assurance in running this constitutional convention. He pointed out some of the difficulties we have been having without a more codified system that also ultimately seeks a degree of flexibility.

Turning to the amendment, if the conclusion of the convention’s deliberations was that our relationship with the legislation we consider needs to be dealt with through a written constitution, that would be one of the benefits of such a convention and a justifiable part of it. I take on board the points made by the noble Lord, Lord Hughes, but I ask him to withdraw his amendment on the basis that the convention should be empowered to consider this issue itself.

[Lord Hughes of Woodside]

My Lords, I am grateful to all noble Lords who have taken part in the debate. As is often the case in such debates, rather than introduce clarity, I seem only to have introduced more confusion. It is clear that I have not been able to persuade the Committee of the magnitude of the change that will happen if we have two elected Chambers. It is a recipe for clashes all the time, so in my view it is essential that that is taken on board. I appreciate the difficulties of time, but the noble Lord said that it would be a mechanism for changing the written constitution. I said in my opening remarks that there would have to be mechanisms for doing that. If there is no mechanism such as a written constitution, how would we adjudicate between two elected Houses? I suppose that there is only one other possibility. Each time there was a failure to agree, it would have to go to judicial review. However, it would be somewhat ironic to abolish a predominantly nominated, unelected House of Lords of whatever number, only to be governed by a small number of unelected, appointed judges. That needs to be considered more deeply than it has been in the past. I also take on board what the noble Lord, Lord Purvis of Tweed, has said. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Clauses 3 to 7 agreed.

House resumed. Bill reported without amendment.

House adjourned at 12.59 pm.