Constitutional Change: Constitution Committee Report

Lord Crickhowell Excerpts

Wednesday 7th December 2011 Grand Committee

[Lord Crickhowell]

My Lords, I begin by paying tribute to our excellent chairman and to our very able legal advisers. Almost every week the Constitution Committee, of which I am a member, examines a Bill which is about to have its Second Reading in the House of Lords. All too often, it is not a happy experience. Our job is to draw to the attention of the House matters of constitutional importance. Again and again, we find the important and frequently repeated recommendations of the committee made in past reports, and similar recommendations made by committees of the House of Commons about such matters as the use of Henry VIII clauses, have been ignored.

All too often, it is also apparent that, quite apart from the constitutional issues, the legislation has been badly drafted or brought forward in a form likely to ensure that its progress will be disruptive and time-consuming. I used to serve on the legislation committee of the Cabinet chaired by Lord Whitelaw. He would never have allowed much of this badly prepared legislation to go forward and I am surprised that the Government's business managers are not equally firm. It would save them much trouble. Unfortunately, the shortcomings have been particularly apparent in some of the most important constitutional Bills, of which the Public Bodies Bill was a particularly bad example.

Against that background, I found the Government's response to our report so disappointing, unlike my noble friend Lord Renton of Mount Harry, who I felt for a moment was being over-influenced by his previous experience as government Chief Whip. Ministers in a new Administration, many without previous ministerial experience and anxious to proceed with measures that they considered important, may perhaps be forgiven for initial mistakes, even if mistakes caused the Government serious legislative difficulties, but I would have hoped that they would have learnt lessons and been anxious to avoid repeating their misjudgments.

In their response to the committee’s report, the Government start by attempting to undermine our main conclusions by a serious misrepresentation of its contents. The introduction section of the response states,

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

Yet describing current practice on the very next page we are told that:

“It is recognised practice for government bills of ‘first-class’ constitutional importance to be committed to a Committee of the Whole House in the House of Commons”.

Definition then clearly is possible in such a manner as to be the basis for recognised practice.

In our report, after addressing in paragraph 10 the difficulties of definition and quoting from the definition offered in the committee’s first report of 10 years ago, which has provided the solid foundation for our work ever since, we offered pretty clear guidance including a list provided by Sir John Baker which,

“provides, in our view, a useful guide to the principal measures which would fall under the rubric of significant constitutional change”.

We suggested that the desire to act quickly as a new Government is not an adequate justification for bypassing a proper constitutional process. The Government's response is that the proper constitutional process is the legislative process and that there was a genuine need for early action. But a great deal of evidence that we received as a committee—and we base our reports on evidence received—showed just why the normal legislative process is not adequate for important constitutional measures. The whole purpose of our proposals was to place some constraints on any Government introducing significant changes, particularly if they are doing so in a hurry.

As the noble Baroness, Lady Jay, observed, there is at present very little to restrain a Government with a substantial majority in the House of Commons. In the case of the measures introduced so urgently by the present Government, they were not underwritten by manifesto commitments endorsed by the verdict of the electorate; they were the outcome of the deal cobbled together over the few days needed to create the coalition. In such a situation, a Government are fully entitled to come forward with measures, but the requirement for proper process to be followed is particularly important. As part of that process, the recommendation in paragraph 9 of our report about ministerial statements to accompany a Bill on its introduction into each House is of fundamental importance. I welcome the fact that the Government will consider whether to accept the principle of that recommendation, together with a similar recommendation made by the Leader of the House on working practice. However, I must say that the Explanatory Notes that accompany a Bill are not an adequate substitute and will not have the effect that we are seeking.

The Deputy Prime Minister in evidence to the committee quoted in paragraph 54 gave cogent reasons for the Government placing an emphasis on,

“greater accountability in the manner in which we conduct ourselves and the way in which politics is conducted, greater legitimacy in the political institutions that seek to represent people; and breaking up excessive concentrations of power and secrecy”.

It is curious in light of that statement that considering the way in which the Cabinet committee system works when dealing with important constitutional change, we are told that the process by which such agreements are reached,

“is a matter for the Government, not for Parliament”.

After a period during which the Cabinet committee system that I knew in government largely lapsed, and during which, to take one example, the Prime Minister set out to abolish the historic office of Lord Chancellor without Cabinet discussion; and when we now have the proper conduct of business set out in the Cabinet manual, it is not just a matter for the Government. Parliament has a very legitimate interest, particularly in the case of constitutional legislation.

The Government say that the fact that a Bill could be considered constitutional in nature does not of itself mean that it should be a priority for pre-legislative scrutiny. I say that it should indeed be a priority, but that if there are justifiable reasons for not undertaking such scrutiny, that needs to be explained and justified.

Under the heading “The role of the Constitution Committee”, in paragraph 108, for very good reasons, we recommended that when introducing a Bill for significant constitutional change into the House of Lords, there should be a minimum of three weekends between First and Second Reading. The Government reject our recommendation, completely ignoring the important role of the Constitution Committee and its ability to perform effectively the duties that it has been given by the House. If the committee’s advisers are expected to give Bills proper scrutiny and the committee is to carry out its work within an interval of two weeks, not three, surely the Government should be capable of responding between the Second Reading and the beginning of the Committee stage. The two months they demand and often take at present is far too long.

The final conclusion of the response seems to me negative, superficial and inadequate, like so much of the work done by the present Administration in the preparation of their legislative programme. Constitutional change is far too important in its consequences to everyone for Parliament to allow it to be hurried through on the whim of Ministers and without proper consideration and procedural rules. I would add as a supporter of this Government that it would be enormously to their advantage if Ministers were to try to learn from experience and past mistakes, and to consider with much greater care than they have done so far the recommendations of important parliamentary committees and the advice of their friends about the better handling of parliamentary business generally.