Constitutional Change: Constitution Committee Report

Lord Desai Excerpts

Wednesday 7th December 2011 Grand Committee

[Lord Desai]

My Lords, it is a great pleasure to follow the noble Lord, Lord Norton of Louth. I welcome the report so ably introduced by my noble friend Lady Jay of Paddington.

I start with what the noble Lord, Lord Norton, said about the Legislative and Regulatory Reform Bill 2006. I recall that when the Bill was before your Lordships' House, it introduced a schedule of constitutionally significant Acts by way of saying that these are the Acts that shall not be amended lightly. I have always thought that that was a good device. The committee has difficulty in saying what the content of our constitution is. I offer Members of this Committee the following mental experiment. Suppose a country wanted to join the United Kingdom. What is the acquis britannique that it would have to abide by? That is in the constitution.

Suppose that Ireland, for obvious reasons, wanted to come back into the United Kingdom. What would we say that Ireland had to abide by? What would be the corpus of legislation? That is in the constitution. It is not unwritten at all. It is written down and available. The only sense that it is unwritten is that it is easy to amend.

We are now engaged in an exercise that says an unwritten constitution may be easy to amend. We may have a Crown in Parliament as sovereign and by that we now mean the House of Commons is sovereign and the Executive are even more sovereign than before. So it would be very easy for the Executive to do whatever they like. How can we introduce speed breakers in certain pieces of legislation to stop the Executive from getting away with whatever they get away with?

The noble Lord, Lord Crickhowell, has already referred to this great experiment in which my Government, because it could not sack the Lord Chancellor, tried to abolish the office itself in the course of an afternoon. Not only did they not consult anybody but nobody told the Government that it could not be done without proper legislation. I remember being in the Chamber and the noble Earl, Lord Onslow, was beside himself with rage at what had happened. He had the House adjourned and insisted that the Leader of the House come to explain what had happened. Of course, the Government had to find a new pair of tights to fit my noble and learned friend Lord Falconer because they did not realise that if he had not presided over the next day’s proceedings the House of Lords would not have been able to function.

This is the degree to which the Executive have got so above themselves—the executives of all parties. They do not even bother to find out what the constitution is and whether it can be amended. We have to welcome this report because it says you can and should make a distinction between legislation that is of constitutional significance and that which is not. Although none of this is watertight—that is the nature of the case—it is still a distinction worth making for two reasons. First, let us be quite sure that there is a corpus of legislation that should not lightly be amended, and secondly, if you are going to introduce something new, you want to know whether it is going to be of constitutional significance. Right now, we have not got a watertight criterion for judging a priori before a Bill arrives so that we can say to the Government that we consider it to be of constitutional significance. The Parliamentary Voting System and Constituencies Bill was an interesting example. It is probably one of the most profound changes we have made to the way the House of Commons is elected, but it was not thought to be a constitutional Bill. Obviously, the Government care only about timetabling legislation in the House of Commons and very little else, so they are reluctant to call a Bill a constitutional Bill because the Committee stage would have to be taken on the Floor of the House of Commons, and that is expensive in terms of time. However, that should not be the only reason why Governments decide that things are not of constitutional significance. The PVSC Bill was a very important Bill, and in the House of Lords we tried, much to the annoyance of the Government, to prolong the discussion through various amendments, and I think we were right to do so. It was a pity that it was not given the importance it should have been given. That is definitely worth saying.

The Government might think of having a Joint Committee of both Houses of Parliament, perhaps a Joint Select Committee on the constitution, for Bills that they think are of constitutional significance or of having a standing committee that receives all Bills. If the committee declares beforehand that it thinks a Bill is of constitutional significance, it is up to the Executive to give cogent reasons why they disagree with the committee and then face the music. I think that sooner or later we will need a much more organised system for making constitutional change than we have at present.

Finally, I am looking forward to a reformed House of Lords. If the House of Lords is elected, that will be another speed break on the Executive, whatever majority they have in the House of Commons. I hope that the House of Lords increases its legitimacy and puts a stop to the way Executives carry on. It is about time we had properly behaved Executives in this country.

--- Later in debate ---

[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.

[Lord Desai]

The Minister describes how exemplary the Government have been about the House of Lords Reform Bill, although they were was in a great hurry to do the other Bills. Would it be right to conclude that the Government will abide by the rules when that does not bother people in the recent past, but that if it was the past they will not call it constitutional?

[Lord Wallace of Saltaire]

My Lords, the Government, as I hear the Leader of this House say frequently, are strongly committed to the process of House of Lords reform. We will bring a Bill before the House and we look forward to the welcome that it will receive from the House’s resident constitutional experts.