Constitutional Convention Bill [HL]

Baroness Hayter of Kentish Town Excerpts

Friday 11th December 2015 Lords Chamber

[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.

--- Later in debate ---

[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.