Constitutional Change: Constitution Committee Report

Baroness Falkner of Margravine Excerpts

Wednesday 7th December 2011 Grand Committee

[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.

[Lord Wills]

I could not resist the noble Baroness’s invitation to intervene on her. I want to make two points. First, on the point of the parliamentary Bill and the boundaries, it is of course quite right that both partners in the coalition had expressed their intention to reduce the size of the House of Commons. However, they had very different numbers, which have crucial implications for the outcome. Therefore, it is completely proper, as the committee said, that this should have been open to all sorts of prelegislative scrutiny. Secondly, the point the noble Baroness made about the Fixed-term Parliaments Bill proves the point that the committee was arguing: that Bill was precisely in the interests of the Executive, and it is the need to fetter the Executive that a lot of the measures put forward by this report are aimed at.

[Baroness Falkner of Margravine]

If the noble Lord were to read what the report says on the Fixed-term Parliaments Bill, he will see that there were contested opinions as to whether it amounted to better governance or merely the Executive overriding to their advantage.

The important examples of the need for proper constitutional process do not necessarily lie in this Parliament but in previous Parliaments; for example, the change to the role of the Lord Chancellor in 2008—noble Lords have referred to it already—or, as the committee mentions, the handling of the Constitutional Reform and Governance Bill in the closing stages of the previous Parliament, which ran a full five-year term, and where the previous Government, with eight years of power till 2005, should have introduced their Bills in the early part of the previous Parliament rather than leaving it to the wash-up. The Prevention of Terrorism Act 2005, which had significant implications for habeas corpus, was not subject to prelegislative scrutiny and, in my view, it should have been. There are some Bills that require flexibility and, as long as justifications are provided for deviation from good practice, we should take each Bill as it comes.

Let me turn to public engagement, which is emphasised in the report. It is, of course, right that in constitutional matters, more than in any other area, there should be at least a minimum awareness in the country of what is proposed and, preferably, meaningful consultation on the merits of the proposals. The nub of the problem lies in what threshold we apply. Noble Lords will be aware of the new e-petition system whereby 100,000 votes on a Downing Street petition can trigger a discussion in Parliament on public policy. As we have seen from the anti-European Union debate recently, a mere debate publicises an issue but does not lead to changes and therefore can disappoint. Consultation that leads people to think that they have a say without it being reflected in substance just makes the electorate more cynical. Another factor is the appropriateness of public engagement. The e-petition system calls forth rather esoteric and special interest issues, and I will give the Committee a flavour of them. Recent petitions include: Convicted London rioters should loose all benefits; Fight for BAE Systems Jobs; and Protect Police Pensions. Some of these may be areas where a debate might be sufficient to deal with them, but the people who have signed the petitions would wish the Government to take action. So, yes, there should be public consultation, but it should be meaningful.

Let me go to the most controversial recommendation. I beg the indulgence of the Committee in going on for a minute or two extra since I have lost some time. The report proposes that legislation should be accompanied by a ministerial statement and provides a comprehensive list of what should be covered in that statement. It further asks the Minister to justify why the Government might agree or disagree with the responses given. The Minister would also be required to set out the extent to which rigour was applied in Cabinet committee. It stops short of asking for a justification of Cabinet decisions, but that is not far off. This perhaps goes too far, and the Government’s response—that they will consider these matters further—is the right one. In today's age of spin, we cannot expect that the internal deliberations of policy within government would not be subject to speculation about who said what, when and for what motive. That would not increase confidence in the Government but would, in fact, decrease it. Having read the multitude of diaries that appeared within months of the previous Government's departure, I come from the perspective that those of us outside are better off not knowing how carelessly or, indeed, controversially serious decisions are made. I suspect that there is at least one member of the committee who would rather that his advice to Cabinet had not been the matter of such intense speculation in the aftermath of the Iraq war.

There are several good things in the report, which have been mentioned by noble Lords, on First Reading and Second Reading timescales and so on. I wholeheartedly agree with them. On the whole, the report is excellent, and while I share some disappointment about the Government’s response, I look forward to the summing up by the Minister. In the words of the noble Lord, Lord Desai, I look forward to hearing him face the music.