Queen’s Speech

Lord Judge Excerpts

Monday 21st October 2019 Lords Chamber

[Lord Judge (CB)]

My Lords, in the gracious Speech there is a reference to the integrity of democracy. I will address the simple principle that the integrity of democracy in this country depends on the survival of the constitution. We have a great number of problems. We are not providing the constitution with the protection it needs, if I may say so, from Parliament. We never have time to examine these issues as a whole. We examine them piecemeal and do not appreciate that each part of the problem adds up to one problem overall, so I will pick four examples.

First, there is the obvious one. To avoid a political difficulty, Mr Cameron, with a great deal of support in Parliament, and, let us not forget, with its certain concurrence, gave us the Brexit referendum. The public were led to believe that their decision in the referendum would be binding on Parliament. They did not choose the questions that they had to answer; the questions were chosen for them. We now know what answer was given. It did not coincide with the views of the majority of people in either of our two Houses. Simply because a referendum has no real place in our constitution, the constitution did not provide and could not be expected to provide an answer to a simple question.

In such a clash, who wins? Those who support Brexit assert—it has been asserted in this Chamber time and again—that a democratic mandate was given to the people and that this overrides Parliament. The same has been frequently asserted in this House the other way around: the ancient principle that ultimate sovereignty rests with Parliament. What a constitutional shambles! It is a salutary lesson to all politicians on all sides that if you mess about with the constitution it will bite back, and it is the public and nation who suffer the consequent injury.

Secondly, as part of a deal to create a coalition Government—in other words, to deal with a political difficulty—the then Prime Minister, Deputy Prime Minister and Parliament enacted a new principle: the five-year Parliament. The result is that, although the Prime Minister of the day failed more than once to obtain parliamentary agreement to the deal she had agreed with the EU, an absolutely central part of her legislative programme, the country was deprived of the only constitutional way to resolve the problem: a general election. There should have been one, but there could not be. I am not saying that we need a general election now—I keep off general elections or referenda in the present context—but I am reflecting that what I am sure was an unintended consequence of this enactment is that an important constitutional principle was undermined. Before the constitutional change was made, did anyone give thought to how it might impact on that constitutional principle? I regret to say that I doubt it.

I come to my third point. All parties are involved in this. Until recently, the Lord Chancellor held office as a major member of the Cabinet, among other things, and as head of the judiciary, with special responsibility for safeguarding the constitution, the independence of the judiciary and the rule of law. That office has now been downgraded. It is no longer the pinnacle of a political career. In truth, it is a relatively minor ministerial appointment, in Cabinet terms. It will be remembered that this important constitutional change was simply announced to the public, before any discussion with Parliament.

So far as the constitutional responsibilities of the Lord Chancellor are concerned, we now have a Minister for the Constitution; I wonder how many Members of this House know that. However, that Minister is not a member of the Cabinet. Like the Lord Chancellor, the Minister does not have to be a lawyer. Therefore, the Minister for the Constitution is not a member of the Cabinet and, like the Lord Chancellor, he or she may never even have read the Ladybird book on the constitution. I am not forgetting the Attorney-General, but he or she is not a Cabinet member either and, in any event, the basic responsibility of the holder of that office is to give independent-minded advice to the Government when the Government are his or her client.

I would love to enter into the Prorogation question in this debate, but I will not. For today’s purposes, I should love to know whether the Minister for the Constitution was consulted in any way, shape or form about the proposal that there should be a Prorogation in September. If not, what is he or she doing? Why do we have such a role? I would argue that in the interests of our democracy and the importance of our constitutional arrangements to preserve that democracy, the Minister for the Constitution should at least be in the Cabinet. I do not expect that we will ever get back to the old-fashioned influence and responsibility of the former office of the Lord Chancellor, but this story is a very serious indication of whether we are at all bothered about the constitution. As things stand, the constitution has been relegated in the government structure and the Cabinet hierarchy. Do we think that is a good idea?

I will make one last point before this turns into a lecture. I want to highlight an issue which may not have crossed all your desks. I am very grateful to the Delegated Powers and Regulatory Reform Committee report of January 2018. Your Lordships’ House had nothing much to do with the Taxation (Cross-border Trade) Bill, as it was a supply Bill and therefore not for this House. Nevertheless, our committee reported in very troubled terms on the delegated powers in the Bill, which involved a massive transfer of power from the Commons to Ministers, with over 150 separate powers to make tax law affecting individuals and businesses, running to thousands of pages. Can we bear in mind that the essential foundation of all our constitutional arrangements and the ultimate sovereignty of Parliament depends on the principle which literally goes back to Magna Carta, Clause 12—that there should be “no scutage nor aid” without consent? That moved across the Atlantic in the principle which the Americans took from this country and summarised as “no taxation without representation”.

The report is utterly courteous, but it is damning about the powers that the Bill—now the Act—gives to the Executive. One example will do. Section 32 creates a regulation-making power, subject to not affirmative but negative procedure. It relates to regulations of the widest possible impact, including those on VAT and customs and excise duty, and of course includes all the ability to disapply primary legislation and so on. This is all on the basis of a “public notice” published by the Minister or HMRC commissioners.

The Public Law Project, a national charity, drew my attention to a new statutory instrument made in purported compliance with these powers. It also made a legal argument that the regulations were ultra vires the parent Act and threatened a judicial review. It has now been conceded that, in law, it was right. But that is a temporary victory. The Act remains in force and so do the wide regulation-making powers. We are not even aware of it. This is a return to rule by proclamation, but because nowadays we all know that we dislike that and are very aware of Henry VIII and the Statute of Proclamations, what do we do? We have a “public notice”—a notice that the Treasury, not the Commons, considers appropriate. This is taxation by proclamation. The mind boggles.

I have said this frequently before, so forgive me, but I simply want to highlight that, as Parliament, we vest vast powers in Ministers, the Treasury, HMRC or any other government department, to create laws and change laws. The constitutional framework is shifting. We are building our constitution on softer sand; not loudly or so anybody notices, but it is happening.

For those noble Lords who are disturbed, let us not forget that criticism should be directed to Parliament. It is up to us. It is very simple: if we want to guard our democracy and its integrity, we must guard our constitution against temporary political advantage or expediency. We must be alert to it and we must fight it. Our constitution is wonderfully flexible, but even a wonderfully flexible constitution can be tested to destruction. That is what we must avoid.

[Lord Framlingham (Con)]

Would the noble and learned Lord agree that in times such as this, it is so important that we rely on our tried parliamentary machinery, and that in recent times we have altered that parliamentary machinery without giving due thought to the consequences?

[Lord Judge]

My short answer is “yes”, but it would be a very long answer if I explained why and what my reservations are about my “yes”.