Constitutional Convention Bill [HL]

Lord Bridges of Headley Excerpts

Friday 17th July 2015 Lords Chamber

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

My Lords, I congratulate the noble Lord, Lord Purvis of Tweed, not merely on securing this debate on his Bill but also on his considerable and thoughtful contribution to the debates on our constitution over a number of years. In preparation for this debate, I have read a number of his great works on devo-plus. I also read a very interesting lecture given some years back by the noble Lord, Lord Kerr, at the British Library. I see in the questions and answers at the end that he said,

“perhaps I should put on record that, if anybody is thinking of having a Constitutional Convention to write a UK Constitution, I am 100 per cent sure that I don’t want the job”.

I am sure that the noble Lord, Lord Purvis, will take note of that. I thank all those who have spoken in this extremely interesting debate for their thoughtful contributions.

While we may have our differences about the Bill and the matter under discussion today, I hope the debate shows that on all Benches there is a strong wish to ensure that while our constitution will continue to evolve, it does so in a way that safeguards its stability and fairness, the unity of the nation and the sovereignty of Parliament. It is clear that we all agree on the importance of getting constitutional change right. The issue that we are debating today, and which is the Bill in front of us, is not our intent or goal; rather, it is about how we achieve that aim and, specifically, whether a constitutional convention of the kind proposed by the noble Lord, Lord Purvis, would help as things stand today. Furthermore, while I disagree with some of what has been said by some noble Lords, obviously I respect the arguments and applaud the passion with which they are made, especially by the noble Lords, Lord Maclennan and Lord Soley. I assure the noble Lord, Lord Soley, that in no way would I wish to suggest that the Government are in any shape or form complacent about these matters.

Before I talk about the Bill itself, I should like to take a step back. I believe that the British constitution has proved to be one of the most successful and enduring political structures thanks to its flexibility, its sensitivity and its almost infinite capacity to evolve. That adaptation takes place in response to the ever-changing nature of our society, our economy and the world. The shape of our constitution evolves in parallel with the needs and expectations of the nation and all its constituent parts. I respectfully suggest that a convention established as a static entity with restricted membership, defined terms of reference, limited time and specific recommendations might well fit unnaturally in that context.

Here I agree with the noble Baroness, Lady Suttie, that we do not have a revolutionary approach to constitutional change. Lord Hailsham added to the twin pillars of the constitution identified by Dicey—those of parliamentary sovereignty and the rule of law—a third that he described as,

“derived from its essentially flexible and evolving nature”.

He went on:

“This is our inveterate and, to my mind, highly desirable habit of being governed as much by convention as by the strict letter of the law. That is what makes the importation of foreign conceptions, American or continental, or otherwise alien constitutional language or thinking, into our constitutional debates so questionable. All may be admirable in themselves. But all are foreign to our way of doing things. Both may be admirable fruits, but you cannot graft a pear on a peach”.

I suggest that a constitutional convention of the kind suggested today would be just such a pear and would not graft naturally on to our constitutional tree.

Furthermore, as my noble friend Lord Forsyth suggested, I, too, am a strong believer in the wisdom and sovereignty of Parliament. People look to your Lordships and the other place to debate, scrutinise and legislate, perhaps particularly so on constitutional matters. For example, I warmly welcome the diligent and thorough work of this House’s Constitution Committee, which is admirably and ably led by my noble friend Lord Lang. Its reports, so rightly held in high esteem in this House and beyond, provide rigorous and perceptive analysis on some of the most complex and significant issues of the day. It is for that committee to decide on its work programme for the future, and I am sure that the Government will give careful consideration to any reports that it issues in this sphere.

My noble friend Lord Forsyth made a very passionate and thoughtful speech. In response to his specific point on a Joint Committee of both Houses to consider all these issues, not just English votes for English laws, I am sure that your Lordships will wish to mull that over; it merits consideration, and I will bring it to the attention of my colleagues and reflect on it myself.

However, it is right that our constitutional programme is set by the democratically expressed voice of the electorate delivered within our parliamentary institutions. Of course we need to heed the views of the electorate. However, I simply pose the question: what would it say about our own faith in the parliamentary process if we were to handle a matter of this magnitude in the way suggested by the Bill? I am not persuaded that such an innovation as that put forward by the noble Lord, Lord Purvis, would be an improvement on our current constitutional arrangements, which have been developed over centuries and are often the source of envy or inspiration around the world. I fear that it could diminish or negate the proper role of this Chamber and the other place.

Clearly, a number of your Lordships disagree with me. Therefore, my next question is: is there a great appetite for such a convention? Are the guts of the British body politic rumbling and growling with discontent at the lack of a convention? Among some hardened constitutional activists, if I may use that phrase, there is indeed such a gripe, but what about among the general public? I suggest not. That said, there is an appetite for change, and a Government with a mandate to deliver on their commitments to change; not just change as regards devolution and the English question but, for example, change to our human rights laws and to our relationship with Europe.

We are delivering on our pledge to hold a referendum on Britain’s renegotiated membership of the EU, which is surely one of the biggest constitutional issues there is, and one that clearly matters to people. Therefore it cannot be argued that the Government wish to stifle public debate about the constitution and how our country is governed. We are more than willing to have that debate and to deliver on our commitments.

Those commitments aim to ensure the continuity and stability of our union and broader constitutional settlement. We are pursuing our policies in accordance with the principles of fairness, respect and opportunity for all. We will govern as one nation to deliver a balanced and strong union, but one that recognises the unique histories and nature of our nations and regions. As Lord Hailsham also once said,

“diversity in unity and unity in diversity are at once the glory and the characteristic of our”,

constitution.

A constitutional convention risks undermining the role and the place of Parliament, is unnecessary and has no public support. However, to those who want a convention I say: let us use the Bill before us today to consider how it might work in practice. I start by gently reminding the House of our Constitution Committee’s nervousness of skeleton Bills. As recently as last week, when it took evidence from my right honourable friend Oliver Letwin, the committee described such Bills as those which contain few specific provisions and provide significant powers for Ministers to make decisions through regulations. My fear is that the noble Lord may well find that such a description could apply to the Bill, which makes very little provision for the convention that it seeks to establish—perhaps intentionally, to avoid answering some difficult questions —and leaves the Secretary of State to determine much of the detail. Indeed, as skeletons go, the Bill would certainly earn a place in the Natural History Museum.

I turn to the convention’s remit, a point to which a number of noble Lords made reference. I suggest that the electorate have already spoken on the issues outlined in Clause 1 and have given this Government a mandate to address them—on Scotland, Wales, Northern Ireland and England. In terms of devolution, for example, only yesterday my right honourable friend the Prime Minister set out our plans for Cornwall. Nevertheless, the Bill rather optimistically provides for the convention to give recommendations on all these complex issues, and to do so within a year. As a number of your Lordships have remarked, this is incredibly ambitious. I know that a week is a long time in politics but, with a scope so broad and varied, I wonder whether the Bill risks setting the convention a truly impossible task. While the ambition may be noble, would a convention really be able to come to a meaningful and considered decision about all these topics in just a year? I am reminded of what Professor Robert Hazell of the Constitution Unit of University College London, warned when he considered a similar list of constitutional conundrums:

“A convention charged with resolving such a wide range of different issues would face an impossible task. Each issue has proved intractable; in combination they are insuperable”.

Before I leave that point, I want to highlight a matter raised by the right reverend Prelate the Bishop of Southwark and the noble Lord, Lord Kerr. This convention would spawn a number of other conventions. It would be not the end of the process but the start.

However, let us imagine for a moment that a convention proceeds and helter-skelters down this track. The noble Lord has argued that his proposed convention would run in parallel with the devolution of powers to Scotland and Wales. I am glad he concedes that, for the priority must be for the Government to deliver on what was promised to the people of Scotland after the referendum and to fulfil the commitment made to the electorate right across England at the general election in May. However, this begs another interesting question. How could a convention usefully engage in a constitutional deliberation in such a dynamic environment in parallel with legislation on Scotland, Wales and Northern Ireland, consideration of proposals for English votes, an EU referendum and a Bill of Rights?

Turning to the composition of the convention, I note that the Bill suggests that the convention must comprise registered parties—a point mentioned by my noble friend Lord Forsyth. He asked how many registered parties there are. I can tell the House that there are 458. Which of these would be invited to the convention? Would the Fancy Dress Party get a look in, or the Birthday Party? What about the Church of the Militant Elvis party or—my favourite—the Grumpy Old Men Political Party?

[Noble Lords]

Hear, hear!

[Lord Bridges of Headley]

Who would determine which parties were represented? Would it be the Secretary of State, the convention chair—if, indeed, there is one—or the public? Then there is the reference to local authorities. Which local authorities, and should this be determined on size? Would it be—I ask this with a certain interest—Surrey County Council or Mole Valley District Council, or would we simply be represented by the LGA? Then there is a vague reference to nations and regions of the UK. Would that include members of your Lordships’ House? How many of these representatives would come from England, where most of the population live, and who would choose the regional spread?

That begs another interesting question. Should there be one unified convention or a series of mini-conventions? If just one, how would the voices of each constituent part of the union be fairly heard within that group? Should they have a veto? What if representation from one nation disagreed with that from another? Here, I quote—

[Lord Kerr of Kinlochard]

The noble Lord picks the nits with great skill and precision but I wonder whether he is going to address the big issues here, particularly that raised by the noble Lord, Lord Soley—the need for a union narrative.

[Lord Bridges of Headley]

My Lords, I entirely agree that there is a need for a union narrative. I believe that this House has heard that many times—perhaps not many times but a number of times—from my noble friend Lord Dunlop and from me. As I said, it should be based on the principles of fairness, balance, proportionality and respect for different parts of the union, and I believe that, as we continue to debate these issues in, for example, the Scottish Bill and other pieces of legislation coming to this House, we will continue to flesh that out.

As I was saying, Alan Trench, a fellow at the Constitution Unit, commented:

“What is vital for Wales is of much less importance in eastern England. To the extent there is a ‘Scottish’, ‘Welsh’ or ‘north-east English’ interest in the Union, each of these is different. Trying to set up a convention to resolve these issues without being clear about what the interests of the various groups are, and how they relate to each other, will be impossible”.

Finally, there is an interesting reference to the fact that:

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

I understand the gist of the clause, but I think that a lawyer would be able to rack up quite large bills contesting its implementation. Those considered political might include trade union workers, pollsters and even journalists, while a seasoned activist with very clear political convictions could be considered an ordinary member of the public just by nature of his or her employment. Who these people are and how they are to be chosen is another potentially contentious issue on which the Bill gives little indication. As the outcome of a convention depends on its members, does it not worry noble Lords that there appears to be significant confusion and inconsistency as to who should participate in this one?

Those points may sound frivolous, and the noble Lord, Lord Kerr, may say that I am nitpicking, but they reflect a serious flaw, because the debate over who gets to debate these matters would be acrimonious, generating heat not light. As I said, we would need a convention before the convention has begun just to deliberate on all that.

[Lord Forsyth of Drumlean]

My noble friend has done the easy bit, which is taking apart the Bill. Will he address the point made by my noble friend Lord Norton of Louth? What about looking at the way that all these piecemeal reforms hang together and where we are now? What are the Government going to do to provide a lead?

[Lord Bridges of Headley]

I am sorry to beg to differ with my noble friend, but I believe that we are providing a lead by setting set out our plan in our manifesto and now delivering on that plan. That is the lead for which we got the mandate. I am sorry that we disagree on this point, but we clearly do.

[Lord Soley]

I just want to follow that up, if I may. The noble Lord has done the easy bit of saying what he is against. I understand that. Can he say what he is for? He could perhaps address whether he will consider a committee of the two Houses to look at what the role of the United Kingdom bit should be, because that would help the rest to fall into place.

[Lord Bridges of Headley]

As I said, this is an idea that my noble friend Lord Forsyth has put forward with great passion and eloquence, and I will certainly take it away to give it further reflection and bring it to the attention of my noble friend the Leader of the House. But I am in no position to make promises from the Dispatch Box here and now. The noble Lord, Lord Soley, says that this is the easy bit, but this is in fact the essence of what we are debating today: the impracticalities and flaws behind such a convention.

Let me conclude by repeating—I am sorry that a number of your Lordships disagree with it—that now is not the time to attempt to delay the constitution’s adaptation in response to the express wishes and needs of the people and communities across the UK. This Government believe that our focus must be on delivering the fair and stable settlement that will ensure the stability and continuity of our uniquely successful constitutional arrangements. I am sure that there will be plenty of opportunities for constitutional scrutiny and debate. I look forward to benefiting from the insight and experience of all noble Lords, especially the noble Lord, Lord Purvis, who, as I said, has done so much to contribute to this debate as a whole.