Constitutional Change: Constitution Committee Report

Lord Hennessy of Nympsfield Excerpts

Wednesday 7th December 2011 Grand Committee

[Lord Hennessy of Nympsfield]

My Lords, just over 51 years ago in the other place, the constitutional historian turned politician, Sir Kenneth Pickthorn, declared that,

“procedure is all the Constitution the poor Briton has”.—[Official Report, Commons, 8/2/60; col. 70.]

Sir Kenneth would have been wiser to have said “almost all the Constitution the poor Briton has”, but there was none the less a profound truth in his words. Over the ensuing half-century, Pickthorn’s constitutional dictum has been substantially and cumulatively modified by a steady flow of statutes and codes, especially over the past 25 years, yet the value and specialness of this report from your Lordships’ Select Committee on the Constitution is the way it bridges Pickthorn’s time and our own, for it reminds us in a powerful and timely fashion of just how vital good and consistently applied procedure is to the health of our everyday constitutional practices and the methods and timetables we use or should use when fashioning new constitutional instruments for the country.

Such questions, I regret to say, rarely excite the electorate. For most people, the workings of the constitution are far from compelling as a spectator sport when lawyer speaks unto academic and footnotes duel between historians and political scientists, but procedure matters, whatever the political weathermakers that drive such considerations away from the electorate’s immediate preoccupations.

In the 1870s, the best ever observer of our national governing ways, Walter Bagehot, declared that,

“our system, though curious and peculiar, may be worked safely; but if we wish so to work it, we must study it”.

Walter Bagehot was writing there of the money markets in his classic work, Lombard Street. How true it remains for the money markets—but it also happens to apply to the workings of the British constitution.

I particularly welcome the committee’s recommendation that Ministers henceforth should prepare what one might call “constitutional impact statements” whenever Parliament is presented with a measure containing a stiff dose of constitutional change lurking in its clauses. The norm ought to be that such Bills should nestle between prelegislative and post-legislative scrutiny, although I noted what the noble Baroness, Lady Taylor, said about the implicit futility of post-legislative scrutiny when a huge Bill has gone through.

Parliament must be the central player, in all its variable geometries on the Floors and in the committees. It should be its own permanent Royal Commission on the constitution. If Parliament is not to be the thinker about as well as the prime arbiter of constitutional measures, it will suffer from what the great Ernest Bevin called a “poverty of aspiration”.

I am not a written constitution man. Part of the constitutional flexibility that we prize comes from our possessing a Gilbert and Sullivan, wandering minstrel-style constitution, a thing of shreds and patches—a mix of custom and practice, precedent, code and statute. I declare an interest as a historian by profession. I naturally prefer what is known in the trade as a historic constitution. But the force of the report before us today is that it cuts with a historical grain. It also has the lesser, if noteworthy, benefit of not having any public expenditure implications that I can see. Virtue is rarely cost free, and we should seize it, cherish it and implement it when we find it.

There may be a problem—indeed, there is—in determining which measures deserve the appellation of a substantial constitutional Bill. Could they be certified as such, like money Bills, and who would so certify them? Governments cannot be the agents for this, because of the extra parliamentary time involved. There is always a certain meanness of spirit within a Cabinet’s future legislation committee and among the business managers on that front. Might the Select Committees have a role here, as the noble Lord, Lord Desai, suggested? But those difficulties are dwarfed by the duty of care that Parliament has when it comes to altering our constitutional practices or designing new ones. The duty of care is especially demanding in the United Kingdom, because of the degree to which our constitution is still unwritten. It has never been better put than by Mr Gladstone when he said that the British constitution,

“presumes more boldly than any other the good sense and good faith of those who work it”.

Notice that verb “work”, again. Far be it from me to sub-edit the grand old man, but he might with benefit have added, “and good procedure, too”.

This report is both Bagehotian and Gladstonian in its philosophy, and I congratulate its framers. I really wish that I could congratulate the Government on their response. I am glad that in their reply to the report they undertook to consider the desirability of a special ministerial statement on the impact of constitutional Bills, but as a whole the coalition’s reply was jaded and underwhelming. It was as if the bumping and grinding of all those huge constitutional Bills that they have sent us has depressed their appetite for still more constitutional change, even of the sensible and procedural kind proposed by the Select Committee. The Government’s response to the report that we have before us was as dreary as it was weary; its mood music was a long, withdrawing sigh. I hope that the Minister will bring a touch of pep and a dash of optimism when he replies to our debate today.