King’s Speech

Lord Norton of Louth Excerpts

Wednesday 8th November 2023 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, like several other noble Lords, I shall focus on devolution; I will make a specific point and then a more general one. The King’s Speech commits the Government to

“promote the integrity of the Union”.

That is very welcome, as far as it goes. The problem is that that is as far as it goes. The Speech is silent as to what the Government will do to uphold the union.

Successive Governments have adopted a reactive position, responding to demands made by devolved Administrations, especially in Scotland. There has been a tendency not to engage with the devolved bodies, but rather to treat them on a grace and favour basis and keep them at arm’s length. The line has tended to be one of grudging concessions, rather than being on the front foot—that is, adopting a proactive stance in making the case for the union. The need to make that case has been advanced and reiterated by the Constitution Committee of your Lordships’ House, not least, powerfully and eloquently, in its 2016 report, as well as that of last year. The latter report says:

“The Union should continue to adapt, but with a renewed focus on strengthening effective relations among its constituent parts. We believe that the flexibility of our uncodified constitution is well-suited to achieving this”.


When I chaired the Constitution Committee, it produced a report in 2002 making the case for keeping the means of resolving conflict in good working order. Had our recommendations been acted on, we would likely be in a much stronger position than we are. There is a need for swift action to ensure that, this time, the recommendations of the committee are acted on. Perhaps my noble friend Lord Sharpe can give the House an update on what progress has been made.

The more general point I will make flows from that. The Dunlop review recommended that a senior Cabinet Minister should have a duty to uphold the integrity of the constitution, including the operation of inter- governmental relations and the devolution arrangements more generally. The Prime Minister has taken the title of Minister for the Union. The problem with this is twofold. First, the Prime Minister has a range of responsibilities; he is not able to prioritise the defence of the union. I appreciate that there is now a Cabinet committee on the union, which is a welcome step, but it is not one that deals with my second point, which is that the Prime Minister’s focus, like that of the committee, is the union, not the integrity of the constitution.

It is the case that the Prime Minister is ultimately responsible for the constitution. This point was made several times in the Government’s response earlier this year to the Constitution Committee’s report on the role of the Lord Chancellor and the law officers. Yet later, when I put down a Question asking who in government was responsible for the constitution, I was told that it was the Deputy Prime Minister. When I tabled a further Question asking why this was not listed in his ministerial responsibilities on the government website, I was told that the Deputy Prime Minister

“has oversight of all Cabinet Office policy and continues to maintain responsibility for constitutional policy, with support … from a wider ministerial team within the Cabinet Office and across Government”.

That is far too broad and ambiguous.

As far as the Government are concerned, the constitution falls under the heading of

“Oversight of all Cabinet Office policy”,


which is one of the 11 responsibilities of the Deputy Prime Minister. It is no better than when the Prime Minister had primary responsibility.

The health of the constitution is crucial to the well- being of the British polity. The fundamentals of our uncodified constitution have served the nation well, but the working of the constitution rests on the broad acceptance by both those in authority and citizens generally that it is legitimate and serves the nation well.

Our constitution, unlike some codified constitutions, is underpinned by a culture of constitutionalism. This embodies an understanding and embrace of constitutional principles. It is reflected in the requirement of the Constitutional Reform Act for the Lord Chancellor to swear to respect the rule of law. The Act does not define what the term means; the Lord Chancellor is deemed to know. However, the constitution has come under challenge in recent years, in part because of ignorance on the part of Ministers—on occasion, a wilful ignorance bordering on contempt—and is now in danger of being undermined by neglect. That needs to be countered by those at the heart of government having a clear understanding of our constitutional arrangements—not just process but the principles underlying it—and being vigilant in protecting those principles. For that purpose, there needs to be a senior Minister with a clear, defined responsibility for constitutional issues and the clout to ensure that the principles are upheld.

It would be helpful to have an acknowledgement that the Government recognise their core responsibilities for upholding and proactively promoting the core values of the constitution. The opportunity afforded by debating the King’s Speech is ideal for this purpose.

Lord Chancellor and Law Officers (Constitution Committee Report)

Lord Norton of Louth Excerpts

Thursday 20th July 2023 Grand Committee

[Lord Norton of Louth (Con)]

My Lords, I very much welcome this considered report, building as it does on earlier reports of the committee, not just on the role of the Lord Chancellor and the office of Attorney-General but on other constitutional issues, to which I shall refer. The report is thorough and balanced.

None of these commendations applies to the Government’s response, which no speaker so far has mentioned; there may be a reason for that. It is, regrettably, not untypical of some of the government responses we have had to committee reports. Where the report entails no action on the part of government, the Government agree with it; where there is a recommendation for change, the Government either disagree or deflect responsibility elsewhere. Indeed, the Government’s response reminds me of an episode of “Father Ted” in which Father Jack is coached to respond to difficult questions by saying, “That would be an ecumenical matter”. In the Government’s response, the equivalent is, “That would be a matter for the Prime Minister”. The response says:

“Ministerial appointments are a matter for the Prime Minister”,


and

“These, along with tenure … are all matters for the Prime Minister”,


at paragraph 9. Paragraph 13 says:

“It is ultimately the Prime Minister who has overall responsibility for the constitution”.


Paragraph 14 says that

“it is entirely for the Prime Minister to determine where constitutional responsibilities should sit”.

Paragraph 16 says:

“Decisions around Law Officer appointments are for the Prime Minister”,


and paragraph 22 says:

“Amendment of the Ministerial Code … is a matter for the Prime Minister”.


The Prime Minister, then, has ultimate responsibility. The Government say, at paragraph 12, that they see greater strength

“in having a number of senior Ministerial leads on discrete constitutional matters, all answerable to the Prime Minister”.

That position is stated but no justification is offered for it. Indeed, the Government now appear to have departed from it. Last month, I tabled a Question asking

“which member of the Cabinet has overall responsibility for constitutional affairs and upholding the constitution”.

My noble friend Lady Neville-Rolfe replied on 26 June:

“The Deputy Prime Minister holds ministerial responsibility for constitutional policy, with support on matters relating to the constitution from a wider ministerial team within the Cabinet Office and across Government”.


So there is now a senior Minister, other than the Prime Minister, with responsibility, which is to be welcomed. The Government have departed from the position they took in March.

The only problem is that I cannot find anywhere on the public record, other than in my noble friend’s Answer, the fact that the Deputy Prime Minister has responsibility for the constitution. It is not in his list of responsibilities on the Government’s website. It is obviously not in the List of Ministerial Responsibilities, which has not been updated since December. Last week, in answer to another Question of mine, my noble friend Lady Neville-Rolfe said that the updated list

“will be published before the summer recess”.

Perhaps my noble and learned friend Lord Bellamy can confirm that it will appear in the updated list.

It would also be valuable to hear from my noble and learned friend which Ministers comprise the wider ministerial team within the Cabinet Office and across government that supports the Deputy Prime Minister. In the December List of Ministerial Responsibilities, only three Ministers—all of them junior, including my noble and learned friend Lord Bellamy—have the constitution listed among their responsibilities.

Attempting to locate responsibility within government for dealing with constitutional issues is a task that has variously been undertaken by the Constitution Committee. I very much endorse its recommendations in this report, which are designed to enhance the position of the Lord Chancellor as the upholder of constitutional propriety within government. I also therefore endorse much of what other speakers, not least the noble Lord, Lord Hennessy, have said.

As the report recognises, the shift is as much to do with culture as with law and regulation. This entails, as we have heard, ensuring that we have a senior figure who has the qualities detailed by the committee and—this is equally important and has been stressed—is widely recognised within Parliament and the legal profession and beyond as having those qualities. It is imperative that there is a dedicated Minister with the responsibility not only for upholding constitutional propriety but for actively promoting the values of the constitution.

The Prime Minister is now the Minister for the Union; that establishes the importance of the union, but a Prime Minister does not have time to focus consistently on it. As I and the Constitution Committee have argued before, the Government need to be on the front foot in making the case for the union. We have to stress the benefits of coming together as one United Kingdom and not simply be on the back foot, responding to demands from different devolved bodies for more powers. We need to stop treating devolved parts of the union on a grace and favour basis.

John Major was the last Conservative Prime Minister to put the integrity of the constitution at the forefront of government thinking. His successors have been tied up with dealing with specific constitutional as well as economic and other issues. There has been no serious thinking about the constitution as a constitution.

I see merit not only in having a senior Cabinet Minister with responsibility for the constitution but in the Lord Chancellor being that Minister. Giving the task to the Deputy Prime Minister is a step forward—it means that a senior Minister has that dedicated responsibility—but not all Prime Ministers accord the title of Deputy Prime Minister to one of their colleagues, and it is a title and not a post. Oliver Dowden’s posts are Secretary of State for the Cabinet Office and Chancellor of the Duchy of Lancaster.

Giving responsibility to a different chancellor—the Lord Chancellor—not only ensures consistency but places it with a Minister who has or should have standing appropriate to the task and who will ideally be in post for some time. It provides a dedicated voice in a way that the Prime Minister cannot usually provide. The Lord Chancellor can ensure that other Ministers respect and are alert to the values of our constitution and the need to uphold them. Otherwise, there is the danger of those values being overlooked by Ministers as they address their departmental responsibilities and the Prime Minister addresses other crucial issues facing government.

I will not go through all the recommendations in the report. However, the report is like other reports from the committee: an extremely valuable and important study, which highlights the need for a body to address constitutional issues. The report merited a more substantive response, both in length and substance, from government. I look forward to my noble and learned friend the Minister providing such a response.

[Lord Davies of Gower (Con)]

The next speaker will be my noble friend Lord Cormack.

Office of Lord Chancellor (Constitution Committee Report)

Lord Norton of Louth Excerpts

Tuesday 7th July 2015 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I very much welcome this report from the Constitution Committee. It is a serious report and deserves to be taken seriously. The response before us, produced by the coalition Government, fails to respond adequately to the committee’s recommendations. Even more importantly, it reflects a failure to grasp the fundamentals that underpin our constitutional arrangements.

A constitution requires not only formal rules but a culture that appreciates and upholds the principles that give rise to those rules. Dicey identified the twin pillars of the British constitution as parliamentary sovereignty and the rule of law, pillars that are not necessarily compatible with one another. The stability of our constitutional arrangements derives from an acceptance that Parliament will not act in such a perverse way as to encroach on the fundamentals of the rule of law. As the report of the Constitution Committee notes, the rule of law is not formally defined. The Constitutional Reform Act 2005 refers to,

“the existing constitutional principle of the rule of law”,

but without defining the term.

Prior to the passage of that Act, the role of the Lord Chancellor was recognised as distinctive—indeed unique—the holder being a senior and somewhat detached figure within government. That detachment was enhanced by the fact that some occupants followed a quasi-judicial route of serving as Attorney-General or Solicitor-General before becoming Lord Chancellor, or a wholly judicial route, being appointed straight from the Bench or the Bar. SA de Smith observed:

“The Lord Chancellor’s duties are multifarious, demanding the utmost delicacy and an extensive familiarity with lawyers and the law”.

However, the office was more than the individual holding the post. The status of the office was important. The Lord Chancellor was senior in the order of precedence. For centuries, until the treason laws were reformed, it was high treason to slay the Lord Chancellor. The status of the office provided some reassurance that the holder would serve to uphold the rule of law, including the independence of the judiciary. As Diana Woodhouse noted in her book, The Office of Lord Chancellor:

“In the absence of a written constitution, the responsibility for judicial independence places the Lord Chancellor at the heart of Britain’s constitutional arrangements”.

In effect, this is acknowledged in the 2005 Act, but the failure to define terms, and the freeing of the person appointed from the previous requirements to hold post, creates problems. The Lord Chancellor, by his oath of office, is sworn to defend the independence of the judiciary, but he is no longer a detached or necessarily senior figure within government. He is different but not that much different from other Cabinet Ministers.

The reform of the office of Lord Chancellor was basically botched, the product of a lack of understanding of the Lord Chancellor’s crucial and embedded constitutional role. The 2005 Act, by its own declaration, does not affect that role, but it is clear from the evidence of the noble and learned Lord, Lord Irvine of Lairg, in the Constitution Committee’s fourth report of 2009-10, that Prime Minister Tony Blair did not fully comprehend that role, viewing changes to the office of Lord Chancellor in the same light as any other change in the machinery of government.

The report before us makes recommendations that clarify some of the uncertainties that are consequent to the 2005 Act in terms of upholding the rule of law and, as we have heard, having an oversight role in relation to the constitution as a whole. These encompass changes to the Ministerial Code and the Lord Chancellor’s oath, as well as ensuring adequate support for those charged with upholding the rule of law.

These are important and weighty recommendations made to government. In essence, the Government’s response—the noble and learned Lord, Lord Phillips of Worth Matravers, touched on this—says, “We broadly agree with the report, except where it makes any substantive recommendation, in which case we don’t agree with it, but we can’t be bothered to engage with the report and provide reasoned arguments for our stance”. My noble friend Lord Lexden has touched on the brevity of the Government’s response. It consists of 115 lines, excluding headings, of which 58 comprise direct quotes from the committee’s report. In other words, half the Minister’s letter simply reproduces the committee’s recommendations. The Government’s actual response occupies 57 lines, constituting fewer than 800 words. Not only does it not engage with the committee’s recommendations; it also appears not to grasp the points being made.

Some of the responses are vacuous. Paragraph 126 of the report recommends that the Prime Minister, in appointing the Lord Chancellor, give weight to qualities outlined in the report and, above all, consider the importance of the Lord Chancellor’s duty to uphold the rule of law. This recommendation follows this observation in paragraph 124:

“There is general agreement that the statutory criteria for appointing a Lord Chancellor are ineffective”.

What is the Government’s response? It states:

“The Constitutional Reform Act 2005 provides that the Prime Minister may not recommend an individual for appointment as Lord Chancellor unless he or she is satisfied that the individual is qualified by experience. There is a range of evidence that the Prime Minister can take into account when reaching such a conclusion”.

That merely summarises Section 2 of the Act as reproduced in paragraph 102 of the committee’s report. Section 2 is the starting point of chapter 4 of the report. To merely restate what is in Section 2 is to ignore what is in the chapter. There is no engagement with its content. Nothing in the response addresses the concerns or the recommendations. This is a government response that, as we have heard, took more than two months to produce, but one that says essentially nothing.

I have two questions for my noble friend Lord Faulks. One derives from a particular recommendation made in the report, and the other, more general question derives from the criticisms of the Government’s response. First, as a number of noble Lords have mentioned, paragraph 101 of the report records:

“There is no clear focus within Government for oversight of the constitution”.

It recommends that a senior Cabinet Minister have responsibility for such oversight and, as we have heard, observes that,

“the Lord Chancellor is best placed to carry out this duty”.

In this Parliament, the Prime Minister has appointed Oliver Letwin, the Chancellor of the Duchy of Lancaster, to fulfil this role. It will be helpful to know from my noble friend what protocol, if any, has been established between the Lord Chancellor and the Chancellor of the Duchy of Lancaster to ensure that there is coherence in addressing constitutional issues.

Secondly, given that there is a need to recreate the culture within government of appreciating the significance of our constitutional arrangements and the principles underpinning them, what are the Government doing to inculcate those principles in Ministers and senior officials? From the Government’s response to the Constitution Committee report there is no evidence of such an awareness, and indeed nothing in the response suggests a clear grasp of what the rule of law entails, despite the committee report discussing it in some detail.

In the light of this debate, my noble friend the Minister may wish to consider going back to his department to think about producing a fresh response to the Constitution Committee’s report. What is before us falls well short of the standard we are entitled to expect.

Queen’s Speech

Lord Norton of Louth Excerpts

Monday 1st June 2015 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, in the few minutes available, I want to focus on the fundamental point deriving from the several measures of constitutional significance that appear in the Queen’s Speech. Like many noble Lords in today’s debate, I address what is missing.

The gracious Speech makes the case for something that is not in it. The same can be said of many Queen’s Speeches since 1997. Successive Governments have introduced significant constitutional changes, but the changes have derived from no clear view of where we are going. Since the time of the Glorious Revolution, we have seen some major reforms, but they have largely been individual measures, each of which has had time to bed in before another change is made. However, in recent decades, we have seen almost constant change. We have introduced changes affecting the relationship between the state and the individual; between Parliament and the people; between the centre and the different parts of the United Kingdom; between the United Kingdom and other nations; and between the different organs of the state. The changes have been justified on their individual merits but, however good the case for the specific measure, it has impacted on the wider constitutional framework of the United Kingdom and done so largely without that impact forming part of the debate. Our constitution is changing, and changing quite significantly, without us having any clear idea of what we are doing to it as a constitution. We are too busy planting the trees, be it on devolution, human rights or cameral relationships, to have time to stand back and make sense of the wood. The Westminster system of government is in danger of being replaced by a shapeless forest of constitutional measures.

I have previously made the case for a constitutional convention. Many noble Lords have also made the case for one in today’s debate. However, I would refine the terminology. Use of the term “constitutional convention” carries too much baggage; it is often taken to denote a body created to draw up a new constitution. My view is that this is potentially dangerous, given that we do not have the foundations for such a body to operate. What I favour is a body that can stand back and make sense of where we are. That must be the essential basis before we embark on any more grand constitutional measures. We need what, for want of a better name, I will call a constitutional convocation.

The Government are committed to particular measures. I appreciate that they cannot row back on those in the Queen’s Speech. However, before going beyond them, I urge them to create, or rather to join with other parties to create, the mechanisms for looking at our constitution in the round—where we are now, how the different elements fit together, and the constitutional principles that underpin those arrangements.

A constitutional convocation could look—must look—at the relationship between the state and the citizen. The proposal for a British Bill of Rights could be encompassed within that consideration. In terms of making sense of relationships within the state, it would encompass inter-institutional relationships within the United Kingdom, the role of Parliament, the relations between the two Chambers and between Parliament and other organs of the state. I notice in respect of devolution that a new report from the Bingham Centre for the Rule of Law has concluded, as indeed have several noble Lords today, that the ad hoc approach to devolution has gone as far as it can and that a more systematic view is required. If the UK remains a member of the European Union, we need to address how that fits with our overall framework. Otherwise, we shall simply continue to do what we have done since we joined the then European Communities and that is, in terms of the constitutional implications of membership, play catch-up. We are too often in response mode.

In short, we can move—we need to move—from the current approach of generating measures that are disparate and discrete and look at our constitution as a whole. Let us take the measures in the Queen’s Speech that affect different parts of the United Kingdom. It is not just that we have a Scotland Bill, a Wales Bill and a Northern Ireland Bill. We also have a Cities and Local Government Devolution Bill. I am not suggesting that we have a grand, all-encompassing devolution Bill—the one-size-fits-all solution identified by my noble friend Lord Dunlop—but I think that these measures make the case for standing back and making sense of how the different parts of the United Kingdom fit together. Otherwise, we are in danger of creating a rather haphazard and potentially unstable patchwork quilt of constitutional relationships. I am not arguing the case for some neat uniformity but rather saying that if we are to have a patchwork quilt, let us make sure we know what we are doing. We need to appreciate the overall effect rather than end, with bits thrown together without any thought to the wider consequences.

The only mechanism we have for standing back and looking holistically at our constitution is the Constitution Committee. However, it will have its work cut out this Session fulfilling its remit to report on each Bill of constitutional significance. If it has the time to fulfil the other part of its remit, to keep the workings of the constitution under review, and complete a full-scale review, it would be of enormous benefit. It is, though, a major undertaking, one that may be best suited in terms of time and resources to a constitutional convocation. As we address each constitutional Bill this Session, we need to keep in mind the wider picture. We need to stand back and address what is happening to the constitution of the United Kingdom. That is the core message that I take from the gracious Speech. I trust that it is one that will be heard by the Government. I look to my noble friend Lord Faulks to confirm that it is.

Parliamentary Voting System and Constituencies Bill

Lord Norton of Louth Excerpts

Tuesday 16th November 2010 Lords Chamber

[Lord McNally]

I have just explained. They will have weeks of opportunities—massive opportunities. The Labour Party has suddenly resurrected the public inquiry to be some massive issue of principle when it knows as well as I do that public inquiries were often the cause of delays that left us with boundary commissions that were nine or 10 years out of date. But, as I say, we shall have plenty of time to—

[Lord Norton of Louth]

My Lords, I intervene as I detect that my noble friend is about to finish. I noticed that a little earlier he was about to touch on the number of Ministers but was interrupted and did not come back to that. Will he deal with that point quickly as it is important?

[Lord McNally]

As I have said before—I think that this has been put on record in the other place—if the general opinion is that the 8 per cent cut in the number of Members of Parliament is such a distortion of our constitution that the payroll vote should be trimmed, we will look at that. We will have plenty of time to do that, and we are on record as saying that we will do it. I will give way but we will have lots of time to discuss the issues.

House of Lords: Working Practices

Lord Norton of Louth Excerpts

Monday 12th July 2010 Lords Chamber

[Lord Norton of Louth]

My Lords, speaking as a member of the Merits Committee, I can assure the noble Baroness that, as the Session progresses, she will find that the agenda gets considerably longer.

I very much welcome this debate and I congratulate my noble friend on initiating it. Like him, I take the term “working practices” as an all-encompassing one. Working practices exist for a purpose. My starting point therefore is to address the basic principles that should guide us in determining those practices. First, we need to establish the purpose of Parliament and the relationship between the two Houses, as several noble Lords have already said. This point is fundamental, both to the debate about the composition of this House and about its structures and procedures. Parliament is the body which calls Government to account. The Government are the body that crafts public policy and is responsible for the administration of the state, but does so within constraints imposed by Parliament. Parliament sustains the Government but it also scrutinises them to ensure that their measures, as well as their actions, are appropriate and that they justify approval. To fulfil those tasks, it needs appropriate resources. Its fulfilment of those tasks is enhanced, both in terms of effect and legitimacy, by being carried out openly and through engagement with people outside the Palace of Westminster.

The value of Parliament is maximised by having two Chambers that work in such a way as to complement one another. The difference between the two is a particular strength of our political system. The House of Commons is the body through which the Government are chosen and the body that, by virtue of being elected, constitutes the grand debating arena of the nation. It is the place where the battle between the parties is fought. MPs are returned to support their party and to argue the case for that party. Election affects fundamentally the terms of trade between the parties. The parties fight it out in the full glare of national publicity. Partisanship is intrinsic to the way the House operates. The other place, quite naturally, focuses on vote-winning exercises. Members' legitimacy in fulfilling their tasks derives from election.

This House is very different. By not being elected, there is not the same clash between the parties. By not being elected, Members do not need to achieve high profiles for the purposes of promoting their parties and their own re-election. This House can complement the other place by fulfilling tasks essential to Parliament, but tasks for which the House of Commons lacks the political will, time or sometimes the resources to fulfil.

In addressing our working practices, we thus need to recognise that we are not here to emulate or to challenge the ultimate authority of the elected House. Rather, we exist to add value by fulfilling tasks that play to our strengths and enable the other place to focus on those tasks to which it gives priority. This House complements the other place by engaging in rigorous and detailed scrutiny. The other place determines the ends of public policy and devotes some time to examining the means. This House focuses primarily on the means.

Our legitimacy for engaging in detailed examination derives from the experience and expertise of Members. I cite in aid the findings of the Ipsos MORI poll, commissioned by the Constitution Unit at University College London and carried out in 2007. The survey found that considering legislation “carefully and in detail” was ranked as very important in determining the legitimacy of the House by 73 per cent of those questioned. Having many Members who are experts in their field was also ranked as very important by a majority of respondents.

That is my first point. That establishes our core functions. If we are to fulfil our functions effectively, then we need to have appropriate structures and procedures in place. Who, though, determines those structures and procedures? How do we ensure that they remain the most appropriate? How do we review them on a regular basis?

This House does a good job in fulfilling the functions I have mentioned. We variously point out how good we are at legislative scrutiny, not least relative to the other place. We have various procedural advantages which are denied to MPs, as my noble friend Lord Strathclyde outlined. Yet in some respects we are in danger of being left behind by the other place. Public Bill Committees are now utilised by the House of Commons. Government Bills not subject to pre-legislative scrutiny are sent, after Second Reading, to evidence-taking committees. We have procedures for sending Bills to evidence-taking committees, but, as my noble friend Lord Strathclyde mentioned, very rarely use them.

We need to review our practices, but the mechanisms for doing so are rather clunky. Our means of review are occasional and reactive. Our working practices start to look a little worn and Members recognise that there may be a case for reviewing them. What happens? We have to press for a review, for example, through a Leader's Group. There is a growing recognition that we need to develop our committee structure. What happens? A Member or Members of the House write to the Liaison Committee asking it to recommend the creation of a committee. In short, we lack the means for examining what we do on a holistic and continuing basis. The Liaison Committee has recently reviewed the committee structure and generated criteria for assessment. That is a welcome development, not least given that the criteria take into account the relationship between the two Houses. However, we need to go further.

Our committee structure has developed on an ad hoc basis. We need to examine whether there are gaps that can usefully be filled by committees in this House. What cross-cutting issues receive no systematic parliamentary examination? Can our committees be reconfigured and form part of a coherent committee structure? We need a body that can engage in such reflection. Not only that, we need a body that can review the committees of this House and our working practices generally and do so on a continuing basis. We have nothing equivalent to the other place in being able to do so. Our Procedure Committee is essentially a reactive body. We need something like a permanent Leader's Group, one that comprises Members from all parts of the House, is empowered to set its own agenda and to take evidence. Then and only then can we ensure that our working practices remain effective and efficient for fulfilling our core purposes.

It is essential that we make use of this opportunity to press for such a committee and in the interim to identify those changes that will strengthen our working practices. As has been mentioned, we have the reports from the three working groups that reported at the end of the previous Parliament. I served on all three and I endorse the recommendations that they produced. They are well targeted for ensuring that this House fulfils its functions. In the time available, I wish to identify three changes relating to legislation that have been recommended and that will enable this House to play to its strengths in undertaking detailed scrutiny. In so doing, I shall reinforce some of the points already made by noble Lords.

The first is the recommendation of the working group, chaired by the noble Lord, Lord Filkin, that a committee on legislative standards be appointed to advise the House on whether a Bill meets an agreed set of criteria on legislative standards and Bill preparation. This strikes me as eminently appropriate. It fills a gap in the existing legislative process and it plays to the strengths of this House. It fits very much with what the public expect of this House. Such a committee has the potential to identify best practice and to help to raise the standard of legislation in this country.

The second relates to a Bill once it has been introduced. The Constitution Committee of your Lordships' House, in its 2004 report, Parliament and the Legislative Process, recommended that each Bill should, at some point during its passage through Parliament, be subject to examination by an evidence-taking committee. Since then, the other place has introduced Public Bill Committees. What flows from this, as recognised by the group chaired by the noble Lord, Lord Filkin, is that a government Bill starting life in this House and not subject to pre-legislative scrutiny should be referred to a temporary Select Committee. That would bring us into line with the other place.

I add one qualification. We should not preclude the possibility of following the same procedure for Bills brought from the Commons. There are problems with the Public Bill Committee procedure in the other place—not least the limited time between evidence taking and commencing consideration of amendments—and some Bills may be unduly rushed or not even be submitted to such evidence-taking.

My third point relates to post-legislative scrutiny, a point on which several noble Lords have touched. The Constitution Committee, in its 2004 report, recommended that post-legislative review be introduced and that reviews undertaken of Acts be submitted to a Joint Committee of both Houses. The Government referred the recommendation to the Law Commission. The commission endorsed the recommendation, including the creation of a Joint Committee. The Government accepted the recommendation for post-legislative review, and, as has been mentioned, most Acts are now reviewed three to five years after enactment. However, no action was taken on the proposal for a Joint Committee. The Filkin group has reiterated the case for a Joint Committee. Like the Constitution Committee, it recognises that if there is no interest in the other place in setting up a Joint Committee, this House should establish such a committee.

For the reasons I mentioned earlier, there may well be little interest in the other place in a Joint Committee. It is not politically high profile; there is no scope for partisanship and attracting votes. It again is something that would play to the strengths of your Lordships' House. It would enable post-legislative reviews to be considered in Parliament and for best practice to be identified.

It is important for such a committee to be created fairly quickly. That is for two reasons. The first is that several post-legislative reviews have already been published, including on anti-terrorism legislation and the Constitutional Reform Act 2005. The second is that, at a time of austerity, there is the danger that the Government may view suspending post-legislative review as an easy way of reducing costs. If they do, we revert to the situation where Ministers see success in terms of Royal Assent—getting a measure through—rather than in terms of the effect it has. Creating a committee on post-legislative scrutiny, which need not be particularly resource-intensive, will be a step towards improving the quality of legislation in this country. Again, it will play to the strengths of this House.

The arguments I have just outlined for a committee on post-legislative scrutiny also apply to the case for creating a committee to examine treaties—an essential step, in my view, following enactment of the Constitutional Reform and Governance Act.

There is a great deal that we can and should do to strengthen our working practices. There are clear and compelling recommendations from the three working groups. Those recommendations need to be set within a clear conceptual framework of the purpose of this House in our political system. We need to be clear as to what we are here to achieve, and we need to have in place mechanisms that enable us to keep our structures and procedures vibrant and efficient. This debate is a starting point, or at least one step on the road, to achieving that. By playing to our strengths, we deliver what the public expect of us. Let us make sure that we live up to expectations.

Queen's Speech

Lord Norton of Louth Excerpts

Thursday 27th May 2010 Lords Chamber

[Lord Norton of Louth]

My Lords, I wish to address constitutional issues. For reasons of time, I will reserve my detailed comments on specific measures for when they are introduced. Given that this is the debate on the Address at the start of a new Parliament, I thought I would focus on three overarching points that should inform the Government in how they proceed in dealing with constitutional affairs.

First, do not expect too much. There is the danger of offering constitutional change as a simple solution to complex issues. I fear our economic and social problems are not going to be alleviated by changes to our political structures. Indeed, our political problems are not necessarily going to be solved by changes to our political institutions. We face a crisis of confidence, but it is not a crisis of confidence in our established institutions, but rather a crisis of confidence in our political class. If people do not trust politicians, changing our electoral system is not going to solve the problem if it simply results in the same people being elected. There is the danger of constitutional change being used as a way of politicians absolving responsibility—of not accepting that the problem is the way they behave, rather than the institutional framework in which they operate. What is crucial is behaviour rather than structures. What we need primarily is leadership—politicians being seen to act in the public interest—and not necessarily institutional change.

Secondly, if we are to have change to our constitutional arrangements, it is essential that that change derives from a clear conceptual framework—a clear understanding of what type of constitution is appropriate for the United Kingdom. The previous Government introduced a number of major constitutional changes. They affected fundamentally our constitutional arrangements. The problem was that they constituted essentially disparate and discrete measures. They were never couched in any intellectually coherent approach to constitutional change.

When addressing constitutional change, we need to start from a clear understanding of the type of constitution we consider appropriate for the United Kingdom. We must be clear as to the principles that determine structure and composition. Take reform of your Lordships’ House. The Times has been carrying letters from people who advance their pet schemes for reform, indicating what proportion should be elected and which Members should be selected by this or that body. Anybody can come up with a scheme to change the composition of the House; what is crucial is to start from first principles. That is, to determine what we expect of Parliament in our political system and, therefore, the role and relationship of the two Houses and their relationship to the other elements of our political system. Once we know what we expect of the second Chamber as an integral part of our constitutional arrangements, then and only then can we start to determine the composition best suited to the fulfilment of that role.

Thirdly, measures of constitutional change need not only to be grounded in an intellectually coherent approach to the constitution, but to be evidence-based It is not sufficient for a Minister to have a bright idea and then for that to be embodied in a Bill and rushed through on the basis of some supposedly self-evident principle. I have previously made the point that public policy should be evidence-based. Bills that seek to change our basic constitutional arrangements need to be based on sound evidence and subject to sustained parliamentary scrutiny to ensure that they are. That requires, wherever possible, pre-legislative scrutiny as well as sustained examination once a Bill is introduced.

Take, for example, something already referred to: the proposal for a super-majority of 55 per cent in the other place for a premature dissolution of Parliament. That needs to be thoroughly tested. Why a super-majority? Why 55 per cent? When the question has been put, the response has generally made reference to the position in the Scottish Parliament, where a two-thirds majority is required. This troubles me as it suggests a lack of knowledge of what happens elsewhere, other than in Scotland. The Scottish situation is not exceptional. A number of countries employ the two-thirds requirement. None, though, requires a 55 per cent majority. Perhaps my noble friend, in replying to the debate, could tell us the genesis of the 55 per cent requirement. That will be a useful starting point. We need to ensure that this is a thoroughly well grounded proposal and not some back-of-the-envelope approach of the sort that we have seen in the past.

I am not arguing against the proposal, but making the point that it must be thoroughly tested. Changes to how we are governed must be based on compelling evidence and located within a clear conceptual framework. That, I think, is the fundamental message I wish to convey. Ensuring this requires a rigorous process of scrutiny not only within Parliament but within government itself. Ministers may wish to take a leaf out of the book of the noble and learned Lord, Lord Irvine of Lairg. When he appeared before the Constitution Committee of your Lordships' House in 2001, as part of its inquiry into the process of constitutional change, he produced a flow-chart identifying the stages a measure had to go through before it was introduced to Parliament. I do not think that it outlived the tenure of the noble and learned Lord, but it is something well worth considering by the new Administration. Indeed, it will be very useful to know from my noble friend what particular processes have been established for determining the strength of proposed constitutional changes prior to their introduction to Parliament.

Ensuring that Bills have been thoroughly tested, both in terms of rationale and empirical support, is likely to mean that they are not rushed. It is important that Parliament is not front-loaded with such Bills. There is no need to rush; indeed, there is every reason not to rush. We can fruitfully utilise some of the time of the new Session to ensure that we do have enhanced processes of scrutiny in place. At the end of the previous Parliament, as the noble Lord, Lord Filkin, reported, a number of informal working groups of your Lordships' House came up with proposals for strengthening the House in its conduct of business. Let us focus on those proposals and make sure that we have in place the most effective processes for examining changes to our constitution. I hope that the Government will do likewise. It is better to be right than to be rushed. Our constitution is not the plaything of any government. We need to ensure that change is justified both in principle and practice. It is essential that we have in place the mechanisms to do justice to whatever the Government bring forward.