Constitutional Change: Constitution Committee Report

Debate between Baroness Falkner of Margravine and Lord Wills

Wednesday 7th December 2011 Grand Committee

[Baroness Falkner of Margravine]

That is a well rehearsed point, I know, from the noble Lord, Lord Norton of Louth. My rebuttal to him at the time that we had this discussion in Committee was that all public policy can be construed as political; we nevertheless go through a process of giving it substance through law and deliberation prior to it becoming law. That was why it was quite right for it to go through Parliament. There is a philosophical imperative in respect of this public policy measure not just to have it for a single Parliament but to have it as good practice enshrined as a constitutional convention. That was the basis on which we introduced it.

[Lord Wills]

I could not resist the noble Baroness’s invitation to intervene on her. I want to make two points. First, on the point of the parliamentary Bill and the boundaries, it is of course quite right that both partners in the coalition had expressed their intention to reduce the size of the House of Commons. However, they had very different numbers, which have crucial implications for the outcome. Therefore, it is completely proper, as the committee said, that this should have been open to all sorts of prelegislative scrutiny. Secondly, the point the noble Baroness made about the Fixed-term Parliaments Bill proves the point that the committee was arguing: that Bill was precisely in the interests of the Executive, and it is the need to fetter the Executive that a lot of the measures put forward by this report are aimed at.

[Baroness Falkner of Margravine]

If the noble Lord were to read what the report says on the Fixed-term Parliaments Bill, he will see that there were contested opinions as to whether it amounted to better governance or merely the Executive overriding to their advantage.

The important examples of the need for proper constitutional process do not necessarily lie in this Parliament but in previous Parliaments; for example, the change to the role of the Lord Chancellor in 2008—noble Lords have referred to it already—or, as the committee mentions, the handling of the Constitutional Reform and Governance Bill in the closing stages of the previous Parliament, which ran a full five-year term, and where the previous Government, with eight years of power till 2005, should have introduced their Bills in the early part of the previous Parliament rather than leaving it to the wash-up. The Prevention of Terrorism Act 2005, which had significant implications for habeas corpus, was not subject to prelegislative scrutiny and, in my view, it should have been. There are some Bills that require flexibility and, as long as justifications are provided for deviation from good practice, we should take each Bill as it comes.

Let me turn to public engagement, which is emphasised in the report. It is, of course, right that in constitutional matters, more than in any other area, there should be at least a minimum awareness in the country of what is proposed and, preferably, meaningful consultation on the merits of the proposals. The nub of the problem lies in what threshold we apply. Noble Lords will be aware of the new e-petition system whereby 100,000 votes on a Downing Street petition can trigger a discussion in Parliament on public policy. As we have seen from the anti-European Union debate recently, a mere debate publicises an issue but does not lead to changes and therefore can disappoint. Consultation that leads people to think that they have a say without it being reflected in substance just makes the electorate more cynical. Another factor is the appropriateness of public engagement. The e-petition system calls forth rather esoteric and special interest issues, and I will give the Committee a flavour of them. Recent petitions include: Convicted London rioters should loose all benefits; Fight for BAE Systems Jobs; and Protect Police Pensions. Some of these may be areas where a debate might be sufficient to deal with them, but the people who have signed the petitions would wish the Government to take action. So, yes, there should be public consultation, but it should be meaningful.

Let me go to the most controversial recommendation. I beg the indulgence of the Committee in going on for a minute or two extra since I have lost some time. The report proposes that legislation should be accompanied by a ministerial statement and provides a comprehensive list of what should be covered in that statement. It further asks the Minister to justify why the Government might agree or disagree with the responses given. The Minister would also be required to set out the extent to which rigour was applied in Cabinet committee. It stops short of asking for a justification of Cabinet decisions, but that is not far off. This perhaps goes too far, and the Government’s response—that they will consider these matters further—is the right one. In today's age of spin, we cannot expect that the internal deliberations of policy within government would not be subject to speculation about who said what, when and for what motive. That would not increase confidence in the Government but would, in fact, decrease it. Having read the multitude of diaries that appeared within months of the previous Government's departure, I come from the perspective that those of us outside are better off not knowing how carelessly or, indeed, controversially serious decisions are made. I suspect that there is at least one member of the committee who would rather that his advice to Cabinet had not been the matter of such intense speculation in the aftermath of the Iraq war.

There are several good things in the report, which have been mentioned by noble Lords, on First Reading and Second Reading timescales and so on. I wholeheartedly agree with them. On the whole, the report is excellent, and while I share some disappointment about the Government’s response, I look forward to the summing up by the Minister. In the words of the noble Lord, Lord Desai, I look forward to hearing him face the music.