Constitutional Convention Bill [HL]

Lord Hughes of Woodside Excerpts

Friday 11th December 2015 Lords Chamber

Moved by

[Lord Hughes of Woodside]

1: After Clause 2, insert the following new Clause—
“Draft written constitution
The convention shall produce a draft written constitution on the powers and functions of the House of Commons and the House of Lords.”

[Lord Hughes of Woodside (Lab)]

My Lords, if ever I had any doubts about the need for a written constitution, the very short debates that we have had on Clauses 2 and 3 stand part have proved the need for it. We have heard in miniature today a repeat of the hundreds of hours and millions of words spent on reform of the House of Lords. The idea that there can be some form of citizen-led consensus is, frankly, nonsense. We are faced with a constant clamour for this Chamber to be an elected House. I have no objection to that in principle—in fact there is much to be said for it—but what has not been discussed by any method is the relationship between the two Houses once we have an elected House. You cannot have two elected Houses without their powers being specifically defined.

As an example of how things seem to have changed, we recently had a little kerfuffle—a stooshie, as I like to call it—over tax credits. This House decided to reject the statutory instrument, and the Government immediately had a knee-jerk reaction and set the noble Lord, Lord Strathclyde, to look at how things should be changed. The fact that the Chancellor of the Exchequer accepted in their entirety the views of this House on tax credits validates the right of this House to reject the statutory instrument. Perhaps the best thing we could do is to say that the noble Lord, Lord Strathclyde, should be stood down.

Much has been said. Constitutions; elections; the number of possible ways of voting, such as first past the post and proportional representation; the possibility that this House might be indirectly elected according to the proportion of the votes cast at the general election—all these have been discussed, and again there has been no consensus. I think that the clamour for election means that it is now inevitable, but one has to realise that the moment when the first elected Member enters this House, the whole dynamic will change. Perhaps it will change even before there is an elected House, because this House will then have the legitimacy to challenge fiercely the House of Commons, in a way that it has never challenged before. The only way to ensure that the supremacy of the House of Commons is maintained is by a written constitution.

Given the earlier debate about the difficulties caused by the number of tasks that this convention has to do, I hesitate to add yet another; nevertheless, I think it is essential. This set of affairs is very interesting but I believe very strongly in a written constitution. Of course, there is no guarantee that it would solve all the difficulties between the two Houses, especially two elected Houses. Implicit in my proposed new clause is the suggestion that, if there is to be a written constitution, there has to be a mechanism for change, and that takes us to interesting places and possibilities.

It is interesting, for example, to look at the United States constitution, which dates from March 1789. Since then, 37 amendments have been proposed, 27 of which have been ratified. Interestingly, the 27th was first proposed in 1789 but was never actually ratified until May 1992 —200 years later—so I suppose that one could argue that written constitutions are no short-term issue.

Of course, written constitutions can be overturned and manipulated. The most notorious example of manipulation of a constitution was what happened in the old South African Parliament before the end of apartheid. Written into the South African constitution were what we call entrenched clauses, which could be changed only by a two-thirds majority of both Houses of Parliament sitting together. The Government of the day wanted to remove the right of Cape Coloureds to be on the common voters’ rolls in Cape Province. They argued that they had a mandate for change and therefore they tried to amend the constitution by a simple majority in each House.

The courts in South Africa—which, by the way, have been seen as a bastion of freedom—ruled that that was not possible, so the Government came up with the wheeze that they would declare that the elected House of Parliament would become a high court of Parliament and would then rewrite the constitution. Not surprisingly, that, too, was rejected. The South African Government then simply increased the size of the Senate, increasing the numbers that could be nominated to it, thereby getting the two-thirds majority that they desired. As a matter of insurance, they increased the size of the Appellate Division of the legal system with their own placement to make sure that the law did not interfere again with what they were doing. In fact, they did not need to do that because the courts accepted that that was possible.

A written constitution is certainly necessary. If you think that the clamour—I call it a citizen-led clamour—for change is bad now, can you imagine what will happen when the second Chamber is elected? There will be incessant demands for change, should there be a clash, so a written constitution is an absolute necessity. I suspect that we are going to get constitutional change sooner rather than later, and when that time comes it is essential that the new, elected House of Lords, for want of a better phrase, and the elected House of Commons do not spend their early days squabbling about constitutional matters—about who has the right to do this and who has the right to do that.

There are far too many cynics around today who denigrate not just our parliamentary and political systems but the whole idea that politics has anything to offer. Nothing would give them more joy than to see a new system involved in arguments about who had the right to do this, that or the other. Although I do not like a written constitution—I gather that the noble Lord, Lord Kerr, has the same view—I am absolutely convinced that it is necessary for the good of the country and the future. I beg to move.

--- Later in debate ---

[Lord Purvis of Tweed]

My Lords, I enjoy the interactions with the Minister on this aspect, although we do not see eye to eye. I think he was referring to the previous constitutional history of England when he said “this country”. It is worth mentioning that. We often have to reflect on the previous errors of England in the constitutional history of these nations—plural.

I understood the amendment to require, as the noble Baroness, Lady Hayter, indicated, a more codified relationship between the House of Commons and House of Lords, and that it was not a consideration of a wider British written constitution. But I respect the extensive experience of the noble Lord in the other place and in this House, and share many of his views about the need for a more codified relationship in respect of our governance. It is interesting that those who now seem to set their faces against that—primarily the Government—are happy to institute processes that do not necessarily have any end or focus at all.

One example was the debate we had on incremental and gradual change of the House of Lords. Any objective observer of that process would feel that what the Minister said was a criticism of my Bill, but it could be applied exactly, in fact more so, to the process of reform that his own party is putting forward. That is amplified by the fact that the noble Lord, Lord Strathclyde, has proposed that external people should interfere in the procedures of this House, a point made by the noble Lord, Lord Forsyth. It is probably more appropriate for the Government to adopt a slightly different tone, because there is now justification for moving towards a more codified system of relationships between the nations and our governance.

I shall go back to the point made by the noble Lord, Lord Kerr. Incidentally, if the Minister thinks that a superhuman expert is required for the running of such a convention, the more the noble Lord, Lord Kerr, contributes to that debate, the better. Much as he may indicate that he is ruling that out, I cannot think of anyone more qualified or who could give me greater assurance in running this constitutional convention. He pointed out some of the difficulties we have been having without a more codified system that also ultimately seeks a degree of flexibility.

Turning to the amendment, if the conclusion of the convention’s deliberations was that our relationship with the legislation we consider needs to be dealt with through a written constitution, that would be one of the benefits of such a convention and a justifiable part of it. I take on board the points made by the noble Lord, Lord Hughes, but I ask him to withdraw his amendment on the basis that the convention should be empowered to consider this issue itself.

[Lord Hughes of Woodside]

My Lords, I am grateful to all noble Lords who have taken part in the debate. As is often the case in such debates, rather than introduce clarity, I seem only to have introduced more confusion. It is clear that I have not been able to persuade the Committee of the magnitude of the change that will happen if we have two elected Chambers. It is a recipe for clashes all the time, so in my view it is essential that that is taken on board. I appreciate the difficulties of time, but the noble Lord said that it would be a mechanism for changing the written constitution. I said in my opening remarks that there would have to be mechanisms for doing that. If there is no mechanism such as a written constitution, how would we adjudicate between two elected Houses? I suppose that there is only one other possibility. Each time there was a failure to agree, it would have to go to judicial review. However, it would be somewhat ironic to abolish a predominantly nominated, unelected House of Lords of whatever number, only to be governed by a small number of unelected, appointed judges. That needs to be considered more deeply than it has been in the past. I also take on board what the noble Lord, Lord Purvis of Tweed, has said. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.