Queen’s Speech

Lord Hennessy of Nympsfield Excerpts

Wednesday 8th January 2020 Lords Chamber

[Lord Hennessy of Nympsfield (CB)]

My Lords, to borrow a line from PG Wodehouse, it is always easy to distinguish between a ray of sunshine and the imminent return of the European Union withdrawal Bill. Yet fuelled by a wish to find reasons to be cheerful, including real possibilities on the constitutional front, perhaps I may open with a few swift thoughts about what of enduring value might be built out of the rubble, as the dust and grit of the general election campaign start to settle.

I think the outline of a consensus is visible and its achievement possible—a thin wisp of tomorrow that is just discernible today, to borrow a phrase from the great French historian, Fernand Braudel. If it is, such a consensus could rescue the coming political generation from the pit of Europe-envenomed rancour into which the recent and current political class fell with such dispiriting regularity.

There are five questions which, if tackled with determination and consensual good will, could, taken together, represent a worthy, shared project for the political generation of the 2020s to the immense benefit of our country and our people. Here would be my quintet of ingredients. The first is social care: to do for social care in the early 2020s what the NHS did for healthcare in the late 1940s. The second is a sustained social housing drive: a generous public/private mix at least comparable in scale to Harold Macmillan’s housing programme in the early 1950s. Thirdly, there is technical education, and getting this right for the first time. Parliament has been on the case since the 1860s. Now, surely, is the hour. Fourthly, there is climate change. As the incomparable Winston Churchill liked to say, “You cannot ignore the facts, for they glare upon you.” They do in this case, quite literally. Finally, there is the constitution: the codes, statutes and conventions that we live and work by. For we can no longer rely, sadly, on what an old Cabinet Office friend of mine, Clive Priestley, used to call “the good chaps theory of government”, whereby good chaps of both sexes knew where the unwritten lines were drawn and came nowhere near touching them, let alone crossing them.

During the autumn, I took a stab at an early 2020s constitutional agenda in a pamphlet for the Constitution Society, with Dr Andrew Blick of King’s College London. We called our paper, Good Chaps No More? Safeguarding the Constitution in Stressful Times. The paper’s premise was that

“the constitution has special properties. It is a creation of history, the work of many hands and minds that reflects a myriad of experiences. A government-of-the-day is its custodian but not its sole owner. The constitution is a shared possession of the nation as a whole which imposes a special duty of care on Prime Ministers, Cabinets and Parliament … changes to it need to be very carefully crafted and to carry wide consent.”

Trust is the scarcest and most precious political metal at the moment. Faith in the constitution is essential to its restoration and sustenance. I shall not describe all the triggers for constitutional anxiety in our recent past, but any list would contain the attempted Prorogation of Parliament of late August 2019, deemed illegal by the Supreme Court on 24 September, the episode which may have sung the requiem for the “good chaps theory”. Her Majesty should never have been put in that position.

What terrain might be covered by a constitutional inquiry? We would all have our own cartography, but this is the landscape that Andrew Blick and I sketched out: the Executive, taking in Ministers, the Cabinet and the Civil Service; the relationship between the Executive and the monarchy; the relationship between the Executive and Parliament; the internal organisation of Parliament; the position of the courts as upholders of the rule of law; and the relationships between the UK Government and the devolved levels of governance. It is quite an ambitious enterprise, but one we need at the start of a decade that will take us out of the EU, and may—though I fervently hope not—see Scotland leaving and fracturing the very union in which all of us have lived, breathed and had our being. Such a change would, I believe, be more disturbing, psychologically, for the shrivelled UK that remained than anything the European question has thrown at us.

I share the concerns of other noble Lords about the Conservative Party’s election manifesto promise of a constitution, democracy and rights commission, a pledge etched into the marble of the gracious Speech. A first step in the restoration of trust would be for the Government to make plain that any such inquiry should be, and be seen to be, independent of the Government. Andrew Blick and I suggested an array of possible instruments and here there is an overlap with my noble friend Lord Cormack: a royal commission; a parliamentary inquiry, perhaps a Joint Committee of both Houses; a Speaker’s conference; or a citizens’ convention.

My final thought is that although I am not a written constitution man, maybe the time has come to capture more of it in cold print. I think we need a new equipoise between the moving parts of the British constitution, on which our system of government depends, and our people’s faith in it. In seeking that new equipoise, we might draw ourselves together, refreshing the constitutional arrangements by which we govern ourselves, and, in so doing, take ourselves by surprise with our creativity, our civility and our sense of common purpose.

Brexit: Negotiations

Lord Hennessy of Nympsfield Excerpts

Tuesday 20th November 2018 Lords Chamber

[Lord Hennessy of Nympsfield (CB)]

My Lords, the European question has long vexed us, as a people and a country. When the wind from Europe blows through the corridors and Chambers of the Palace of Westminster, it scars our politics and sears our national conversation to a degree unmatched by any other issue. It can chill premierships—occasionally fatally. It is the great disrupter of post-war British politics; a story of showdowns punctuated by sometimes fierce parliamentary set-pieces.

The Prime Minister’s Statement on the draft withdrawal agreement last Thursday was just such an occasion. As I watched the debate from the Gallery, two thoughts crossed my mind. One was very fanciful: I could almost sense the hovering wraiths of Prime Ministers past who had faced their own version of Euro torment at that very same Dispatch Box. Secondly, I felt a pang of sympathy for Mrs May. Why was this? It was because, listening to the Prime Minister, I was struck by how heavily freighted her Statement was by multiple capital Q questions, all of which swirl and entwine one with another in the circumstances we face. There are more than any previous Prime Minister encountered and they all require considerable feats of statecraft. By my calculation, there are now seven in play.

The European question itself has reopened the “Britain’s place in the world” question with which we have grappled since the Suez crisis of 1956. The Irish question is revived in a new form. The union of the UK question is also in play, because a brutal Brexit would surely inflame the likelihood of a second independence referendum in Scotland in the 2020s. The condition of Britain question has also been re-posed by the inequalities of life and life chances across the kingdom, thrown into sharp relief by the 2016 referendum. The standard model of our left/right politics is also under serious pressure. It has never been able to handle the European question, which fissures parties from within, rather than between.

Since we debated the Government’s post-Chequers White Paper in July, I would add a seventh question: Parliament. Parliament itself is being seriously stress-tested in its primary function of being “the grand inquest of the nation”, to use the venerable term. In passing, I commend the report of the House of Commons Procedure Committee, published last Friday. It suggests ways in which this might be done in next month’s debate in the Commons, so that every part of the spectrum of opinion on Brexit can feel it had its moment on the Floor of the House of Commons. This is important because, as all noble Lords know, Europe is a great arouser of grievance politics.

I hope that the draft withdrawal agreement makes it to treaty form. A harsh exit would generate the rawest of capital Q questions in the short term, stretching the public’s faith in government as a protector and provider. Somehow, we must rediscover that political genius in which we once took such pride and draw deep—very deep—on our wells of civility and tolerance. The first people we need to get on with when we are through all this are ourselves.

European Union (Withdrawal) Bill

Lord Hennessy of Nympsfield Excerpts

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I do not agree that these are simply technical amendments. The issues arise from Clause 7, headed, “Dealing with deficiencies arising from withdrawal”, which gives a Minister of the Crown power to,

“make such provision as the Minister considers appropriate to prevent, remedy or mitigate”,

deficiencies. Clause 8 of the Bill that we have discussed at such length deals with a Minister of the Crown making regulations as he considers appropriate,

“to prevent or remedy any breach, arising from the withdrawal of the United Kingdom … of the international obligations of the United Kingdom”.

Clause 9 is headed, “Implementing the withdrawal agreement”, and similar powers are given to a Minister of the Crown. Schedule 2 is headed, “Corresponding powers involving devolved authorities”. Part 1 of that schedule deals with deficiencies and Part 2 with international obligations. Part 3 is headed, “Implementing the withdrawal agreement”. One would have expected corresponding powers for Welsh Ministers and Scottish Ministers in those areas within their own competences, but each of those parts of Schedule 2 says that regulations may not,

“confer a power to legislate”.

Therefore, unlike the powers granted to a Minister of the Crown in the UK Parliament, the powers to legislate are withheld from Ministers in the devolved Assemblies. That is the critical issue, which is a matter of principle and not at all technical.

[Lord Hennessy of Nympsfield (CB)]

My Lords, I regret that I was unable to speak at Second Reading. I promise that I shall not make up for it this afternoon; I shall be very brief.

With the clauses before us this afternoon and evening, we have reached a truly load-bearing piece of the Bill. In my more anxious moments I sometimes think that the very weight of the kingdom is resting upon it, and that, if it is misjudged, the chances of the union eventually crumbling would be worryingly greater.

I do not doubt the Government’s good faith in the negotiations within the Joint Ministerial Committees but, as other noble Lords have already mentioned, the devolutionary spirit of 1998 needs to suffuse the discussions in those committees’ deliberations, and, indeed, ours in both Houses of Parliament.

If the European question infects and envenoms the union question, the country will suffer a self-inflicted blow of immense proportions. Of course, there is a need to retain an effective internal market within the UK. That is absolutely crucial, but the sustenance of the union—the essential quiddity of our nation—is paramount, which is why I express my wholehearted support for the thrust of the amendments in the name of my noble and learned friend Lord Hope of Craighead.

[Baroness Goldie (Con)]

My Lords, first, I both echo and reaffirm what the noble and learned Lord, Lord Hope, said: there must be respect for the devolved Administrations. I emphasise that as emphatically and cogently as I can at this Dispatch Box, and I confirm that the Government are wholly committed to demonstrating that respect.

As a number of your Lordships observed, the Government have tabled amendments to Clause 11, and we will give them our full consideration shortly. We have to acknowledge that the position we ultimately reach on Clause 11 will have implications for related policy on devolution in the Bill. Indeed, the noble and learned Lord, Lord Hope, acknowledged that. I can reassure your Lordships that we are mindful of the need to revisit the approach we have taken for the Schedule 2 powers in the light of that forthcoming debate on Clause 11. I therefore thank the noble and learned Lord Hope for instigating this debate on whether the devolved Ministers should be permitted to sub-delegate their Schedule 2 powers.

Amendments 266 and 278 would remove this restriction from the correcting power and the international obligations power for Scottish and Welsh Ministers and for Northern Ireland departments. Amendment 292 relates to the withdrawal agreement power and would have a wider effect, but I understand that the intention is the same. I should be clear that we do not oppose in principle the idea that these powers should be able to be sub-delegated to and by devolved authorities where appropriate cause is shown. This is already evident in the Bill. Noble Lords will see that this restriction—for instance, in paragraph 1(4)(b) of Schedule 2—is already qualified to allow for the sub-delegation of a power to make rules of procedure for a court or a tribunal. This ensures that the power can be sub-delegated where appropriate to ensure judicial independence. We have invited the devolved Administrations to offer any examples of where sub-delegation would be needed, and we have made clear that where they identify such examples we shall consider drawing further exceptions to the restriction. So far, no examples have been given.

It has been our intention—this may surprise the Chamber—not to make the powers in this Bill any wider than is appropriate. Opening up the possibility of sub-delegation by devolved Ministers in all cases where no prior need has been demonstrated does not align with this intention. However, I have listened to the contributions made this afternoon and have heard the concerns that your Lordships have expressed today. I have taken particular note of the question of respect as it relates to the perceived unfairness of a possible disparity between the devolved ministerial powers and the corresponding powers for UK Ministers.

Brexit: Devolved Administrations

Lord Hennessy of Nympsfield Excerpts

Thursday 25th January 2018 Lords Chamber

[Lord Hennessy of Nympsfield (CB)]

My Lords, I declare my membership of the advisory council of These Islands.

As a remainer and a United Kingdom man to my last fibre, I was fearful in the gap between the Scottish and the EU referendums, as was the noble Lord, Lord McInnes, and other noble Lords, that a vote to leave would reinflame the UK question—that some might argue in Scotland that the vote not to separate in September 2014 largely, if not wholly, turned on economic factors and that the deal was now off, as the UK, thanks to the June 2016 EU referendum result, was set to build a very different kind of political economy for itself. Another referendum on the question of Scotland might therefore be justified if the thrust of this argument carried force.

If such an outcome occurred—as that great political scientist Lady Bracknell might have expressed it—to lose one union may be regarded as a misfortune; to lose both seems like carelessness. I profoundly hope that the union of the UK is not fractured in the future, for it would be a misfortune of the highest order, changing the nature of our country and the very way we imagine it and seriously diminishing thereby our place in the world.

If dealing with the consequences of Brexit turns out, as the wording of today’s Motion hints, to be a successful co-operative effort between the UK central Government, this Parliament, the devolved Parliament and Assemblies and their Administrations, it would be a conspicuous enhancer, rather than a diminisher, of the union of the United Kingdom. I dearly hope that that occurs.

But some peril lurks in the devolution clauses of the European Union (Withdrawal) Bill. To my regret, I shall be away from London on one of the days when your Lordships’ House will be debating it at Second Reading, but had I been able to speak this is the area on which I would have concentrated, for here lies a mixture of delicacy and complication. Rereading recently the European Communities Act 1972, I was struck by the contrast with the withdrawal Bill shortly to come before us. Both are what one might call pipeline measures, the first pouring existing Community legislation into our islands on 1 January 1973 and the second repatriating the powers that we have pooled with our European partners since that date.

But in 1972-73, there were no devolved Administrations; they are creations of the late 1990s. If we consult the official history of the UK’s successful entry negotiations penned by that great public servant, the diplomat Sir Con O’Neill, who led the official negotiating team—it is now declassified and makes a fine and fascinating read—we find very little on Scotland, apart from a few pages on fisheries. For example, those two formidable figures of post-war Scottish politics, Jo Grimond and Lord Boothby, were eloquent about the needs of inshore fishermen seeking their harvest in the testing waters of The Minches, the exquisite seas around the northern isles and the fishing grounds within reach of the north-east coast of Scotland.

But it was a different world. Since then, for example, Section 57 of the Scotland Act 1998 bathes the whole devolution settlement in EU compatibility. As the noble and learned Lord, Lord Wallace of Tankerness, noted, as part of the withdrawal process, some 111 functions are in play that contain a devolutionary element, 80 of which are pretty non-contentious, I understand, but the 31 others might be. As we have also heard, a network of joint ministerial committees, with groups of officials supporting them, has been at work on these problems, mindful among other things of the needs of the UK’s own internal market functioning as it should.

But have your Lordships noticed the paucity of coverage of this critical process by the London-based press, certainly compared to the Scottish newspapers? Yet this is a first-order problem in multiple ways. If the process seriously bruises the internal political and institutional relationships of the Queen’s kingdom, that very kingdom, at best, will function more rancorously in the years after Brexit and, in the worst case, it might be rent asunder.

These intra-UK negotiations will test the mettle of our Ministers and officials in Whitehall and throughout the devolved Administrations, and they have my sympathy in the delicate and difficult task in which they are engaged. I would value greatly a report on the work in progress so far when the Minister winds up. May I request also, henceforth, regular updates for your Lordships’ House on the process of those joint ministerial groups? That would be of immense value to us.

The devolution clauses of the withdrawal Bill that we shall soon debate are crucial for the well-being of our people and the proper functioning of our institutions. It would be truly tragic if Brexit mutated into the eventual dissolver of the union that for more than 300 years has turned us into a most extraordinary United Kingdom atop our damp little archipelago in the cold northern seas.

Devolution

Lord Hennessy of Nympsfield Excerpts

Thursday 2nd July 2015 Lords Chamber

[Lord Dunlop]

My Lords, when discussing constitutional conventions, what always springs into my mind is a remark made by, or attributed to, Harold Wilson when talking about royal commissions—“They take minutes and last years”. I cannot see any evidence of public support for a convention. The public want us to get on and deliver the constitutional commitments we have made to each part of our United Kingdom.

[Lord Hennessy of Nympsfield (CB)]

My Lords—

[Lord Grocott (Lab)]

My Lords—

[The Lord Privy Seal (Baroness Stowell of Beeston) (Con)]

This is a classic example of where the House is calling for the noble Lord, Lord Hennessy.

[Lord Hennessy of Nympsfield]

My Lord, given the multiple uncertainties facing the constitutional arrangements of our islands, in the Minister’s judgment, of what magnitude does a constitutional question have to be before it justifies a convention?

[Lord Dunlop]

I acknowledge the noble Lord’s great expertise in this area. The Government are addressing the various strands of our constitution in Wales, Northern Ireland, Scotland and England. Our priority is to deliver those commitments rather than spending time on a constitutional convention. Of course, if others want to set up their own convention they are welcome to do so. I read with interest the debate last week on the constitution. It is clear that constitutional conventions mean all things to all people. As my noble friend Lord Bridges said in this House last week, getting agreement on a convention would itself need a convention.