Constitutional Change: Constitution Committee Report

Baroness Jay of Paddington Excerpts

Wednesday 7th December 2011 Grand Committee

Moved By

[Baroness Jay of Paddington]

That the Grand Committee do consider the Report of the Constitution Committee on The Process of Constitutional Change (15th Report, HL Paper 177).

[Baroness Jay of Paddington]

My Lords, I am very pleased to open this debate on the Constitution Committee’s report, The Process of Constitutional Change, which we published last July. The purpose of the inquiry was to explore the way in which changes to the UK constitution are brought about, and whether we could recommend improvements. The timing of the inquiry was prompted by the coalition Government’s action in introducing several substantial constitutional Bills in their first year in office. As noble Lords will be aware, the Government have also announced further plans for constitutional change, notably reform of your Lordships’ House.

Our report was based on written submissions that we received and on oral evidence from a number of eminent experts. These experts were mostly academics but we also heard from the Deputy Prime Minister, Nick Clegg, the author of many of the coalition proposals, and from two former MPs, Tony Wright and David Howarth, who have wide knowledge and experience in this field. I should like to place on record my thanks to all who gave evidence and, in particular, to the committee’s two legal advisers, Professor Adam Tompkins and Professor Rick Rawlings, who acted as specialist advisers for this inquiry, and to our Clerk, Emily Baldock.

The committee’s overall recommendation is that, in contrast with existing practice, the United Kingdom needs to adopt a clear and consistent process to make Governments accountable for the constitutional changes that they introduce. As your Lordships will appreciate, the process of constitutional change matters because the constitution, even when it is unwritten, is the foundation on which our laws and government are built. Currently there is little to prevent Governments with a majority in the other place changing the UK’s constitutional arrangements as they please. The constitution is therefore vulnerable to the political agendas of successive Governments but any Government should be subject to the constitution, not the other way around.

In the Select Committee’s opinion, all proposed changes should be tested against an agreed and rigorous process, which would prevent Ministers picking and choosing which processes to apply in different political circumstances. We argue that constitutional legislation is qualitatively different from other legislation and should therefore be treated differently.

It should be noted that, although our inquiry was, as I said, prompted by our response to several contemporary Bills, our criticisms of existing process are certainly not exclusively directed at the current Government. The record of the past will show that the Constitution Committee has been concerned about constitutional legislation since it was first established a decade ago. As the Grand Committee will remember, the Constitution Committee was often robustly critical of changes made by the previous Administration. I believe that the noble Lord, Lord Norton of Louth, who is a very long-serving member of the committee, will speak about its persistent and consistent efforts in this direction since 2001.

This year, as a first step, we set about trying to define those pieces of legislation that could legitimately be called constitutional and should therefore be subject to a special process. However, we were not tempted to consider that this could be done in a watertight way only if the UK moved towards a written constitution. Equally, we did not accept the suggestions, which came from several academic witnesses, that Parliament should outsource constitutional matters to an independent commission, which could then decide whether any constitutional proposals were acceptable.

However, the committee found it useful to try to identify positively those areas where any change was properly described as both constitutional and substantial. Professor Sir John Baker of the University of Cambridge offered us a list, which the committee found useful. The list included: any alteration to structure and composition of Parliament; any alteration to powers of Parliament or any transfer of power, as by devolution or international treaty, which would in practice be difficult to reverse; any alternation to the succession to the Crown, or the functions of the monarch; any substantial alteration to the balance of power between Parliament and government; any substantial alteration to the balance of power between central government and local authorities; and any substantial alteration to the liberties of the subject, including the right to habeas corpus and trial by jury.

Clearly, this is not an exhaustive list, but the Committee thought that it certainly included those significant constitutional matters, where a clear and consistent process should be adopted by all Governments. In essence, our main recommendation was quite limited. We asked that the Government, before introducing such a new Bill into Parliament, should set out in a Written Ministerial Statement whether that Bill provides for significant constitutional change and, if so, whether it has been subject to certain prelegislative processes, both of consultation and prelegislative scrutiny.

In our view, any constitutional Bill should be preceded first by some form of public engagement. There should be rigorous scrutiny in Cabinet committees, particularly considering the impact of proposals on the existing constitutional arrangements, which in our opinion are sometimes not taken into consideration. The Government should publish both Green and White Papers to be followed by a formal public consultation and prelegislative scrutiny. At the end of such a process, there is no doubt that there may well still be disagreement with the policy of a particular Bill, and we did not recommend, as has sometimes been suggested, that a consensus must be reached before a Bill could be introduced. But at least, if the process that we described had been followed, everyone would have been afforded an opportunity to have their say and genuinely influence the outcome. The only mandatory element of these proposals would be the production of the Written Ministerial Statement.

The Government’s response to our report was published in September and, in parliamentary language, I have to describe it as disappointing. The Government do not appear to accept that constitutional Bills can be readily identified and should have particular treatment. The Committee thought that even on the basis that “you know one when you see one”, it is perfectly possible to single out a constitutional Bill for a special process. The Government’s response to the main recommendation was that they,

“will consider whether to accept the principle of it”.

This afternoon, I urge the Minister to go further than consideration and accept that principle and thus agree to introduce Written Ministerial Statements, one hopes from the beginning of the next Session. This in itself would go a long way to remove the practice of ad hoc decision-making in this fundamental area.

The recommendations that we made for a specific prelegislative process were queried in the Government’s response and are obviously the subject for debate and refinement. The question of what the committee’s report calls public engagement is always difficult in a representative democracy. In this instance, we use the phrase to cover forms of engagement that take place at an early stage in policy-making. We distinguished it from referendums on specific policy questions and from public consultation on individual detailed proposals. We heard, for example, about a fascinating model for engagement used in British Columbia, in Canada, where citizens from all over the province were randomly selected and then met over the course of a year to determine which type of electoral system should be put to the people in a referendum. The committee found this model attractive and were clear that it was important to try to actively engage citizens and involve them in significant constitutional change. But we did not find that any one form of such engagement could, or should, be mandatory. For example, a model that worked for consideration of the electoral system might not be appropriate to determine how best to protect habeas corpus. But this did not mean that the committee wanted the Government to ignore the possibility of public engagement in consultation, and if our proposal for a mandatory ministerial statement on constitutional Bills were to be adopted, the Government would have to justify explicitly the reasons why they did not undertake such procedures.

Some noble Lords have already told me that they felt that the committee’s report was somewhat unimaginative and downplayed the value of consultation. This was certainly not our intention, but we were concerned to learn from several witnesses that too often, today, public consultations are seen merely as box ticking. We wanted to find a way in which we could agree that some form of sensible consultation could be undertaken. It would be obviously of enormous value if noble Lords who are concerned could today offer solutions which might have wide application.

Finally, I want to say a brief word about the Cabinet committee system, which we considered imperative in this process. We felt it imperative that proposals for significant constitutional change be subjected to rigorous scrutiny in Cabinet committees, partly because of their potential impact across all government departments and partly because the committee system is an essential part of ministerial responsibility. Again, somewhat disappointingly, the Government responded that collective responsibility meant that internal Cabinet discussions could not be publicly revealed. Yet the committee was not asking for publication, simply that the ministerial statement formally record that proper Cabinet committees had taken place. Surely, that could not be considered a breach of official security.

In conclusion, I once again draw your Lordships’ attention to our inquiry’s most important finding: that there is no accepted current process for constitutional change. It simply does not exist. We therefore recommend the future adoption of a clear and consistent process, intended to form a comprehensive package from which the Government could depart only in exceptional circumstances and where there are clearly justifiable reasons for doing so. We did not think that this needed cumbersome or inhibiting legislation, as only the proposal for a Written Ministerial Statement on constitutional Bills would be a statutory requirement. We thought our recommendations were practical and achievable, and I hope that the Minister is able to provide your Lordships today with a more positive response than the Government’s formal response in the autumn. I look forward to the debate and I beg to move.

--- Later in debate ---

[Baroness Jay of Paddington]

My Lords, this has been an excellent debate and I am very grateful to all noble Lords who have spoken for their high-class critique of the Select Committee’s report and their general welcome for our conclusions. I must also thank the Minister who, in his reply, was neither dreary nor weary, to quote the noble Lord, Lord Hennessy—that was the noble Lord’s description of the Government’s written response—but equally not particularly encouraging. If I look at the two fundamental points that the Select Committee wanted to make in our report, that constitutional legislation was clearly qualitatively different from other legislation and that it should be accompanied by a Written Ministerial Statement, which was in no way to be equated with Explanatory Notes—I think we made that explicit— I would have to say that the Minister was disappointing, in very much the same way as most noble Lords described the written response.

I would not agree with the opening remarks of the noble Lord, Lord Renton, about some of our proposals being over the top. I would describe them more as being practical, very measured and—I think this was the comment made by the noble Lord, Lord Wills—magisterial. I also thank the noble Lord, Lord Wills, for his development of our comments about public consultation. I think he has suggested a further inquiry for the committee, which was very helpful. I was also particularly pleased that the noble Lord, Lord Maclennan of Rogart, with his very distinguished background and record in this area of constitutional change, was so enthusiastic about our proposals. He suggested that there must be ways found for the House to take these proposals forward, perhaps through other methods of the Procedure Committee, et cetera. I look forward to some further work being done and this report not sitting on a dusty shelf. In the mean time, I beg leave to withdraw the Motion.

[The Deputy Chairman of Committees (Lord Colwyn)]

In fact, we should move that the Motion be agreed.

[Baroness Jay of Paddington]

I apologise. It shows how rusty my procedure is.

Motion Agreed.