Constitutional Change: Constitution Committee Report

Lord Norton of Louth Excerpts

Wednesday 7th December 2011 Grand Committee

[Lord Norton of Louth]

My Lords, I declare an interest as a member of the committee but, in addition, as its first chair. In that capacity, I was responsible for the committee’s fourth report of 2001-02, entitled Changing the Constitution: the Process of Constitutional Change.

The noble Baroness, Lady Jay, has detailed the committee's report and I do not propose to repeat what she has said. Like others, I shall focus on the Government's response. If the response had been submitted by a student, I would have failed it. It is built on a false premise and appears to have been written by someone who has not read the report, nor for that matter read the committee’s earlier report.

The constitution creates the framework within which we are governed. As such, it stands above, rather than alongside, public policy that is enacted within the process created by it. It should be recognised as creating the framework within which government governs rather than as a tool of government. The point was well made in evidence to the committee by Sir John Baker, professor of law at Cambridge University, who wrote:

“One of my main concerns is that it seems to have become assumed over the last few years that constitutional change is a never-ending continuous process, and even more alarmingly that it is a process which (for want of any other system) belongs to the government of the day to manage. This has never been the case in the past, and it is not the case in any other civilised country which comes to mind … A constitution should be thought about as a whole, it should command general support, and it should be more or less fixed, with the possibility of alteration only rarely and by special procedures”.

The Government’s response fails completely to grasp the position of the constitution as being above government, but rather views measures designed to change our constitution as being on a par with other legislation. The legislative process may be the same for every Act—that is the starting point of the response—but to state that is to miss completely the significance and indeed status of the constitution.

Indeed, the Government’s response marks something of a reversal of the position taken by the previous Government. That Government had no intellectually coherent approach to constitutional change—a point I argued frequently—and, as we contended in our report in 2002, they needed to develop not only a culture of constitutional appreciation but also a more integrated approach to change. However, having said that, the noble and learned Lord, Lord Irvine of Lairg, as Lord Chancellor, recognised the significance of legislation affecting our constitutional arrangements. This he demonstrated in a clear flowchart that he submitted to the Constitution Committee as part of its initial inquiry. The Government’s response to this report appears to mark a step back even from that.

Paragraph 2 of the Government's response states that,

“constitutional change is no different from any other public policy”.

This takes us beyond process to substance and reflects the failure to understand the unique position of the constitution. Measures designed to change the basic framework of our constitution are of a qualitatively different kind from ordinary legislation. It is imperative that the Government grasp this essential point.

The response goes on—my noble friend Lord Crickhowell has already quoted this—to assert:

“The Government notes that the Committee does not offer a definition of ‘constitutional’”.

Yes, it does. We provide, as we did in our very first report in 2001, a working definition of a constitution—it is in paragraph 10 of the present report—and we go on, at paragraph 11, to identify what constitutes significant “constitutional” legislation.

At paragraph 20, the Government’s response takes the committee's observation that there is no watertight definition of significant constitutional legislation as a reason for their reluctance to see special processes for handling such legislation. That does not follow at all. There may not be a precise dividing line, but it is usually fairly clear from the evidence presented to the committee what is and what is not significant constitutional legislation. The very fact that one can discern the difference underpins the very existence of the Constitution Committee. The committee adopts the two Ps test in assessing legislation—does it affect a principal part of the constitution and does it raise an issue of principle which has not given rise to difficulties?

Indeed, the Government must have their own test for deciding what is constitutionally significant in order to fulfil their statutory responsibilities. Section 3 of the Legislative and Regulatory Reform Act 2006 prohibits Ministers from making a provision removing or reducing regulatory burdens unless the provision,

“is not of constitutional significance”.

Perhaps my noble friend in reply can tell us what definition the Government employ in determining what is constitutionally significant and how that relates to the Government's response.

For reasons of time, I will not go into detail on the remaining paragraphs of the Government's response. In any event, I do not need to, because what follows derives from the unforgivable failure to grasp the overarching position of the constitution and the consequences for the process of lawmaking that is derived from that status. I suggest that my noble friend considers withdrawing the response and producing a considered reply that is actually grounded in an understanding of our constitutional arrangements.

--- Later in debate ---

[Baroness Falkner of Margravine]

My Lords, this is a most interesting report and the debate has lived up to its billing as one to watch, but let me start with a note of regret that the committee considered naming its inquiry “The Process of Constitutional Reform” and then, overcautiously in my view, abandoned the noun “reform” for the noun “change”. It says that “reform” was somehow inappropriate as it implied a subjective position—to change things for the better—and therefore it stuck to more neutral language, “change” being merely to make or become different. This is far too timid an aspiration for a committee of such distinction and influence, and my vote would certainly have been for reform.

On the substance of the report, there is a desire to place some constraints on the flexibility of the constitutional arrangements currently available. The danger of partisanship, whereby the Government of the day may wish to change constitutional aspects to their own advantage, is recognised, and the report recommends, rightly in my view, that constitutional legislation needs to be treated differently from other public policy. I agree wholeheartedly that there should be no surprises in the introduction of constitutional legislation, but this does not automatically take me down the committee’s preferred route of pre-legislative scrutiny as norm. I shall take an example from recent practice to illustrate my point.

On the Parliamentary Voting System and Constituencies Bill, it was very well known that both parties in the coalition considered the size of the Commons to be too large and had said so in their election manifestos—in the case of the Liberal Democrats, in several election manifestos. The public were aware of these positions, so it was not entirely unexpected as a proposal. Moreover, if it were to be implemented for the next election, its timescale was tight due to the re-drawing of boundaries, hence not allowing for pre-legislative scrutiny.

The Fixed-term Parliaments Bill was unexpected in so far as it had not been a longstanding Conservative ambition to fix parliamentary terms, as had been the case for my party. However, the exigencies of coalition government led to a situation whereby, to provide certainty in a more fluid situation than previously experienced, the Government decided to bring in this legislation.

Now, ideally, a Government moving to this kind of change—less unusual in reality than we might think, as several Governments in recent history have gone to a full five years—should have gone through consultation with a Green Paper, a White Paper, a draft Bill and then the actual Bill. The process would undoubtedly have taken at least an additional year and, in my view, as this was a political decision, was better settled sooner to lend predictability to public policy.

[Lord Norton of Louth]

Yes, it was political.

[Baroness Falkner of Margravine]

I note that what I am saying is controversial. If noble Lords want to intervene, I wonder whether they might do so and I would be prepared to deal with that.

[Lord Norton of Louth]

It was indeed political and there was no constitutional reason for it to be introduced. It would be quite sufficient for the Prime Minister to say that he would not advise the Sovereign to dissolve until May 2015. You only need the Bill if you do not trust the Prime Minister.

[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.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, the Government value enormously the work of this Committee in focusing greater attention on the intricacies of our constitutional protections and of the process of constitutional change. We look forward to a continuing dialogue, spilling over, we would hope, into a more informed public debate.

On this occasion, as we have heard, the Committee has found our response disappointing. I am sorry for that. The Government are not persuaded that the recommendations represent an appropriate way of proceeding.

At the heart of our disagreement, as the noble Lord, Lord Parekh, in effect suggested in his speech, is a fundamental difference of view about our current constitutional arrangements in their current unwritten form. As it stands, constitutional legislation has no special status. To provide a special process for deliberating on constitutional legislation, therefore, runs up against the problem of definition, which the committee itself acknowledges, as well as the question of what is significant and not significant.

The Government’s argument, therefore, is that constitutional legislation has to go through an effective, proper, constitutional process. We have parliamentary sovereignty. The legislative process is, therefore, the way to proceed.

I have been sitting here trying to remember what it was that I taught, as a very young university teacher, when I tried to teach the British Constitution. Things have changed a great deal since then, but the question as to what is constitutional has in many ways become a great deal more complicated. I moved on to teach international relations and the European and International dimension is in many ways the most difficult; confusions over British sovereignty and constitutional sovereignty hit us very regularly.

We have had the debate on the EU Bill, which I helped to take through this House—the question of what happens when British sovereignty is infringed. On the other hand, the IMF programme of 1976 fairly clearly infringed British sovereignty. I recall one of the Cross-Benchers some months ago arguing that the placing of British troops under foreign command would be a fundamental invasion of British sovereignty, which would have clear and significant constitutional importance. The Secretary of State for Defence remarked to me the following day that British troops had just been serving under Turkish command in ISAF in Afghanistan and that indeed British troops had first served under foreign command in the First World War. So the question of what we think is of constitutional significance—indeed what we think constitutional sovereignty is as such—is itself deeply contentious.

I got myself into deep trouble two years ago in Jersey for suggesting that the relationship with the Crown Dependencies was a matter of constitutional significance which was open to constitutional change. I was denounced for a week as a French spy and various other things in the Channel Islands press.

The domestic issue of what is constitutional—the relationship between the Executive and the legislature, and between the Government and Parliament—is clearly fundamental, but the question of whether the courts are part of this is something that we rather skirt around. When we said goodbye to the Law Lords, I was fascinated to discover that the move to a Supreme Court had indeed been taken by legislation on a partisan basis by a Gladstonian Government that was in office for only a short time more than a hundred years ago; and that the collapse of that Government and the return of the Conservative Government led to this reform being pushed back for a mere 130 years.

The relationship between central government and local government is not, it seems, a matter of constitutional significance, although we make it so on a regular basis. The relationship between central government and the devolved Administrations has clearly become part of our constitution now. The relationship between the political elite in government and Parliament and the wider public—the disillusioned, even alienated, citizens—is one that, as the noble Lord, Lord Wills, rightly pointed out, we all need to take much more into account. The question of the interrelationship between different changes is, again, one that we stumble over. I have heard several people over the past few weeks suggest that a future referendum on the relationship between the United Kingdom and the EU might provide a result in which those in England had a clear majority in one direction and those in Scotland had a clear majority in the other. That would absolutely have constitutional significance.

The process of constitutional change cannot be apolitical or consensual. It is essentially political; it defines the rules of politics. The idea of non-partisan constitutional reform, which one or two contributions suggested, seems to me to be a chimera. Alfred Venn Dicey, much cited as a neutral constitutional authority, was also rabidly anti-Irish and wrote pamphlets against home rule. Professor Philip Norton, whom I have long regarded as one of the greatest living authorities on the British constitution after only Professor Peter Hennessy—and therefore as authoritative and neutral—is also the noble Lord, Lord Norton, who has very strong and partisan views on House of Lords reform and a number of other constitutional issues. We cannot criticise government proposals as political; of course constitutional reform is political. The question is: how do we handle them and do we need different procedures?

One of the defining principles of the British constitution is its flexibility and that it is based on parliamentary sovereignty. Therefore, constitutional change is made through legislation. The core of the committee’s recommendations was for a special statement to accompany any constitutional Bill to set out the expected overall impact of the legislation. What consideration had been given to the measure before publication? What public engagement had there been? Had there been formal pre-legislative scrutiny? What post-legislative scrutiny was envisaged? The Government’s response indicated that most of the information suggested for publication is already available in the Explanatory Notes that accompany each Bill on publication. It may be that we need to consider further whether the Explanatory Notes might be accompanied by a written ministerial statement, which would be different in form but perhaps not in substance.

There are a number of other comments that one needs to make. I do not think we would wish to go into the details of internal government deliberations. I can assure noble Lords that the Cabinet committee system works extremely well at the moment, partly because this is a coalition Government and we have to negotiate through Cabinet committees. Some of our discussions are extremely sharp. The Cabinet committee system now works much more fully than it did under the previous Government for obvious reasons.

The additional hurdles—parliamentary or wider—that are suggested, will be the subjects of continuing discussion. As the noble Lord, Lord Parekh, suggested, these would be part of a major process of constitutional change. The House of Lords itself is perhaps now the largest backstop to ill-considered or overpartisan constitutional reform being pushed through the Commons. But for the Government to spell out exactly what it means by constitutional change would itself be a change in the fundamental constitutional arrangements. When the Public Bodies Bill is quoted as a constitutional Bill, we are exploring what is the outer fringes of what we regard as constitutional.

The process of post-legislative scrutiny is a matter for Parliament and the Government to determine, and I hope that noble Lords would accept that is a useful piece on which the Government should leave post-legislative scrutiny for Parliament to decide.

A number of noble Lords have quoted the Cook-Maclennan model. I remind noble Lords that I was myself a little involved in that, and so was the noble Lord, Lord Hennessy, as a neutral adviser on all this. Part of the basis for the Cook-Maclennan discussions was the expectation that Labour might not get an overall majority in 1997, so it was in effect part of a necessary preparation for what might have to be a coalition Government. Perhaps that is something that political parties should think about for the future, but it was on that occasion a preparation for something that did not happen. On this occasion, perhaps none of us prepared for something as fully as we should have done, which we had not expected to happen.

There were particular reasons of urgency underlying the decision to introduce the Parliamentary Voting System and Constituencies Bill and the Fixed-term Parliaments Bill without publishing them first in draft. I hope that I have done my best to explain that. In contrast, the process of House of Lords reform has been one on which we have gone through all the stages of consultation—Green Papers, White Papers, committees—that noble Lords could ask for, and I am not sure that it has necessarily built consensus yet or will ensure easy passage for the Bill when it is published. That is, again, of the nature of constitutional change. Building a consensus for a non-partisan constitutional change is something that academics may hope for but politicians may think is perhaps beyond what is acceptable.

The UK is facing a period of continuing constitutional change, because it is going through a period of significant social and economic change and coming to terms with highly significant changes in its international environment and in the relationship between domestic arrangements and its international obligations and constraints. We will therefore continue to need and value the work of this committee and we look forward to a continuing dialogue with the committee.

[Lord Norton of Louth]

The Minister referred to facing constitutional change, which rather implies that the Government know what “constitutional” means. As far as I interpret his speech, he seems to be confirming that the Government do not know what a constitution is and that the “two Ps” test, which worked quite well for the Constitution Committee, appears to be beyond the Government.

[Lord Wallace of Saltaire]

My Lords, the question of constitutional change is one that we will continue to argue over, and the definition of what is constitutional and is not constitutional is something that evolves through debate and argument in Parliament as well as in academic seminars. Most of us think that we know what is constitutional when we see it, but sometimes we disagree with each other.