Queen’s Speech

Lord Forsyth of Drumlean Excerpts

Thursday 10th May 2012 Lords Chamber

[Lord Norton of Louth]

My Lords, in the time available I wish to focus on constitutional affairs from two perspectives—those of process and substance.

I had the honour to be the first chairman of the Constitution Committee of your Lordships’ House. One of our first reports was on the process of constitutional change. That was in 2001. A decade on, the committee returned to the subject. Its report was published last July. In 2001, we expressed concern at the lack of a culture within government of dealing with constitutional issues. There was no coherence in the process by which constitutional issues were considered. The committee in its report last year—and I was again a member—noted:

“The evidence we have received points to this lack of coherence remaining a serious problem”.

Not only was there no coherence to government policy in constitutional affairs but there was no coherence to the process by which the policy was generated within government. As the report recorded:

“It is of particular concern when this inconsistency appears to derive more from political considerations than any sense of constitutional principle”.

It went on to note:

“There is a risk that changes to the constitution may be rushed through without any pause for thought as to their desirability or otherwise”.

The Government’s response to the report failed to assuage the committee’s concerns but rather reinforced them. The response demonstrated a failure to appreciate the qualitatively distinct nature of constitutional change. There was no grasp of the fact that the constitution stands apart from other legislative change. The constitution is not the creature of the Government to be changed at will on the basis of political whim. The Government are the creature of the constitution rather than the other way round. We cannot afford to follow the Government in the way in which they deal with constitutional matters. Parliament has to adopt procedures that ensure that attempts to change the constitution are subject to scrutiny of a different order from that of ordinary legislation and, indeed, subject to a much higher order of justification. There needs to be a compelling case for change and not simply an arguable case. On such matters one cannot afford simply to give the Government the benefit of the doubt.

As Sir Jeffrey Jowell told the Constitution Committee:

“The time has come to simply take a little more care with constitutional reform”.

We need, in particular, to be able to do what the Government are not doing: address how a change to one part affects other parts of the constitution. The academic and former Liberal Democrat MP David Howarth told the Committee that,

“we have no structural thinking going on about the interaction between the composition of the Houses … the electoral systems, the courts and so on. We have no thinking about how all this fits together into a system of government”.

We need to look holistically at our constitution and to understand the extent to which change does not take place in a vacuum. If you make major change to one part of our constitutional framework it has implications for the rest of that framework.

That brings me to the Government’s proposals for reform of this House. We are told that a Bill will be brought forward. I served on the Joint Committee examining the Government’s draft Bill and I have made the point before that we were limited in our examination. We addressed the Bill before us rather than looking at its wider implications. We looked at the relationship to the Commons and got rather bogged down in that exercise. We did not tackle the wider picture, nor for that matter did we address the principles underpinning change. We need to address the way in which change to one House affects the rest of our constitutional arrangements. The Government’s stated proposals are flawed in that they derive from no such consideration. In short, the process is flawed.

I turn to the arguments that are advanced for an elected House. To listen to those who advance the case for election, one would think that the case is self-evident: that there is an unanswerable democratic argument for change; that in having an elected Chamber we should be following virtually every other second Chamber in the world; and that there is overwhelming popular support for change. Let me deal with each of those claims. One can indeed make a case for electing the House on democratic grounds. However, one can make a case on democratic grounds for not electing the second Chamber. Democracy—demos kratia—is about how people choose to govern themselves. In a representative democracy, accountability is fundamental. In our system, Governments are chosen through elections to the House of Commons and collectively are answerable to the people through the House of Commons. There is core accountability. There is one entity—the party or parties in government—responsible for public policy and the electors know who to call to account at the next general election.

Knowing that, the Government tend to be responsive to the mood of electors in between elections. As long as the final say rests with the House of Commons, the Government are able to govern and remain accountable to the electors. Electing the second Chamber would not necessarily produce co-equal Chambers. What it is likely to generate is a House with more powers and/or a willingness to use extant powers to a far greater extent than at present, and it would be in a position to frustrate on occasion the will of the first Chamber and, in effect, the capacity of government to govern. Accountability would be fragmented. There is an argument for that. My point is that there is, equally, an intellectually coherent case—I believe a compelling case—for maintaining the core accountability at the heart of our political system. One cannot proceed on the basis that what is being proposed by government is self-evidently the sole democratic option; it is not.

Some advance the argument that those who make or help make law must be elected. One can make that case, but it is not as clear cut as those who advance it appear to believe. They are in effect prioritising the accountability of individual Members over the collective accountability of government. I prefer to maintain the accountability of government to the people.

What about the claim that if we move to an elected second Chamber we will bring ourselves into line with other second Chambers around the globe? If we sought to follow the global norm, we would vote for abolition; most legislatures are unicameral. Bicameral legislatures adhere to no clear norm. Of the 76 second Chambers that exist, only 21 are wholly directly elected. Seventeen are indirectly elected, 15 are wholly appointed and the rest are selected by a variety of means.

The powers of second Chambers are also difficult to classify, as Meg Russell records in her article in the January issue of the Political Quarterly. She records the number of elected second Chambers with an absolute veto power over legislation and states that it is inaccurate to claim that in no single case does an elected second Chamber challenge the primacy of the first Chamber. In some systems, such as the presidential system of the United States, the concept of primacy is irrelevant. In parliamentary systems where the first Chamber can override the second, it is, as Meg Russell says,

“relatively common ... for this to require some kind of special majority”.

[Lord Forsyth of Drumlean]

The information that my noble friend gave was very interesting, and new to me. Does it not contradict the mantra that we heard from my noble friend Lord Ashdown—sadly not in his place—who compared us to Belarus and others? Was he mistaken about that?

[Lord Norton of Louth]

My Lords, the simple answer is yes. Meg Russell’s article explains directly in what way the noble Lord was mistaken.

There is an additional point germane to the present case that is rarely mentioned. We are not working on a blank canvas. We are not establishing a second Chamber from scratch. We cannot simply take an extant second Chamber and transpose it to the United Kingdom. The Government’s proposals embody transitional arrangements, but there is no evidence that they have examined experience elsewhere of fundamental changes to second Chambers, and of transitions from one system to another. There has been some academic research, but relatively little. In the Joint Committee, I asked the Minister what study the Government had undertaken. A response in writing was offered, but as far as I am aware nothing was received.

I turn to public opinion. If people are asked whether they favour an elected second Chamber, they tend to say yes. My noble friend Lord Tyler reminded us of the figures last week. He included data reproduced in the Joint Committee report. He cited footnote 22 but did not report everything contained in it. What it showed was that it is quite possible to hold contradictory positions. In a Populus poll, 72% of respondents thought that at least half the Members of the second Chamber should be elected, while in the same poll 75% thought that the Chamber should remain largely appointed. It depends on how you ask the question.

We know from the Ipsos MORI poll of 2007 that electors privilege some of the functions of the present Chamber above the principle of having some Members elected. When one factors in options, that of election falls down the list. There is also evidence to suggest that the more people know about the House of Lords, the more they switch to favouring the existing House over an elected one. The picture is not as unambiguous as some claim.

On the argument that the issue has been discussed for more than a century, I made the point last week that the debate has been sporadic and rarely pursued at the level of first principles. Succeeding White Papers simply took the normative case as given and made no principled argument for change. The Joint Committee was limited by its terms of reference and did not address the case from first principles.

It has been argued that the Government’s proposals are a distraction from more important issues. This claim is made in respect of the economic situation. I wish to make it in respect of a more basic point about our political system. Last week, my noble friend Lord Wallace of Saltaire, in responding—or, rather, failing to respond—to the debate on the report of the Joint Committee, drew attention to the lack of trust in politics. It is a serious concern. My noble friend did not address the fact that the Government’s proposals for the second Chamber—no accountability through re-election and no resources to respond to electors’ pleas for assistance—would do nothing to restore faith in politics.

What he missed was where the problem lies. It is not in the structures and processes of our political system: the problem is with those who run the system. Arguing the case for structural reform is a form of displacement activity, a way of shifting responsibility elsewhere: “It is not us, it is the system”. We will only restore trust in politics when we restore trust in politicians. That must be our principal focus. Without restoring that trust, there is no point in messing about with structures.

In short, we need a fundamental refocusing of our priorities. We need to consider what will restore trust in our political class. Changing our constitutional framework in an incoherent and ill-considered manner will do nothing to achieve that. If we are going to consider constitutional change, we need to begin by looking at our constitution holistically and making sense of where we are before deciding where we should be going. I have argued the case before for a constitutional convention and I reiterate the point I made last week that, if the Government really wish to take our constitution seriously, that is the route we should follow.

Yes, we can consider reform of this House—that is, reform within our existing constitutional framework. Changes to that framework are of a totally different order. The case for change has to be argued and its consequences fully explored. Assertion is simply not enough.