Queen’s Speech

Lord Judge Excerpts

Wednesday 8th January 2020 Lords Chamber

[Lord Judge (CB)]

My Lords, I should have spoken to the noble Lord, Lord Tyler, before deciding what to speak about because he has said nearly everything that I wished to say, so I will not be very long. Your Lordships have heard me, and listened patiently to me, addressing the House about this misuse, this abuse, this failure to comply with constitutional conventions. As I spoke, I believed it and I still believe it. What has happened to Cabinet responsibility? Gone. What has happened to the confidentiality of Cabinet? What has happened to the constitution when the Minister for the Constitution is not a member of the Cabinet? What is happening and has happened with Henry VIII clauses now strewn like confetti at a happy wedding in the old days when, if I may say so to the Lords spiritual, the vicars did not mind if there were confetti on the path all the way back to and in the church?

When I read about the constitution, democracy and rights commission, I thought, “Hurrah! We’re going to address the problems. We’re going to address the misuse and the abuse. We’re going to try to make the Government more answerable to Parliament.” Then I thought, “Isn’t that funny? Democracy and rights are what constitutions are about. Why bother to have a commission into constitution, democracy and rights? Why add those words if your real concern is the constitution?” As the noble Lord, Lord Young, reminded us, the Prime Minister has told us in a briefing that the idea is to develop,

“proposals to restore trust in our institutions and in how our democracy operates.”

He has listed some of the many issues that have to be addressed. I suggest that the very first objective of any commission addressing the constitution should be to identify the misuses and abuses of it by both sides—by the coalition, too—in a practical way to establish and protect the constitution from further misuse and abuse and, in particular, to extinguish the misuse of unaccountable power by the Executive.

However, I could not dispel the suspicion that this is really all about the Prorogation decision of the Supreme Court.

[A noble Lord]

Absolutely.

[Lord Judge]

Well, why does somebody not say so? The answer is: it has been said, but it is not said in the Queen’s Speech, nor is it said in the briefing. Yes, it was an unprecedented decision, but then the situation was unprecedented. Let us just remember that if Parliament is prorogued, Parliament shuts up. There is nobody to challenge the Prorogation decision. This democratic process, an elected House, is told, “You cannot speak now on any issue, because I, the Prime Minister, have decided that there must be a Prorogation.” If the commission looks at this issue, it should not be worried about the powers of the Supreme Court; it should establish a clear understanding that Prorogation cannot happen without a vote in the House of Commons—certainly—and a vote by this House, too.

While the commission is looking at it, could it examine another element of the prerogative that has caused us all so much concern: the size of this House? What on earth is the point of that wonderful committee led by the noble Lord, Lord Burns, making all those recommendations of “two for one”, “one for two”, “swap this”? Very good, but the Prime Minister of the day retains an absolute prerogative power to appoint as many men and women to this Chamber as he or she thinks fit. It would be a good idea for the commission to look at that vice in our constitutional arrangements.

I have said as much as I want to say, save this. I support the idea of a royal commission into the criminal justice system, but if it is a royal commission, why does the constitution commission, addressing the beating political heart of the nation, not merit being one, too. What sort of unroyal commission is intended to address the constitution? If we are talking about trust, a commission established to give the Government the answers that they want will strike a mortal, further blow to the public’s confidence and trust in their own institutions, and the abuse and misuse will continue.