Constitutional Convention Bill [HL]

Lord Kerr of Kinlochard Excerpts

Friday 17th July 2015 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I shall speak on the convention in Brussels to which the noble Lord, Lord Maclennan of Rogart, referred, on which he served with distinction. It consisted of 200 individuals from every member state in the European Union and every candidate member state, from every Government and every Parliament. Some came wanting greater centralisation of power; some came wanting repatriation of powers. In practice, like the previous Government in their balance of competencies review, it could not identify any that it would be in the national interest to repatriate.

The convention worked for 18 months and reached its conclusions by consensus. We neither repatriated powers, nor recentralised them. We aimed at stability, entrenching the definitions of powers, making it more difficult to have creeping extensions of competence. We reached conclusions by consensus. For the first six months we did none of the above; we addressed conceptual papers prepared by the secretariat, which I was privileged to lead. The discussion of those papers led the conventionnel to come to understand each other better: to understand where they were coming from, to appreciate what might and what would not be possible. In the second six months, we addressed particular issues. Only in the third six months—although the thing wound up in 17 months—did we look at particular solutions and drafting issues. We reached consensus.

This is what worries me about this Bill. I support the idea of a convention but find the terms of reference in Clause 2 very hard to understand. I think you have to start from the conceptual and the general, and hone in on the particular when you have reached conclusions on the general. But these terms of reference seem to me to go the other way. I greatly admire the Liberal Democrat enthusiasm for localism, but to start with devolution is wrong. I believe that the noble Lord, Lord Soley, is quite right: you need to consider the countervailing force.

I would like to see us, in the spirit of John Stuart Mill, considering the basic issue of the bargain between state and citizen. What is the relationship between the United Kingdom and its citizens? What is the balance of rights and responsibilities? You need to ensure that a balance is struck between empowering the citizen, ensuring that decisions are taken at the closest possible level to him and involving him to the extent that is possible, and not disabling the state so that it remains able to provide the essential state functions which it is in the citizen’s interest are provided centrally, and the democratic control over their provision.

This would be for the convention to explore but I see three categories of state function. I would like to see a narrative develop on the role of the state. What are the functions of the central United Kingdom state? The first is the state’s responsibility for security and stability. We all agree that disaggregated defence makes no sense. The same goes for foreign relations, law and order, monetary stability and the currency. I argue that there needs to be some sort of fiscal flywheel to deal with exogenous external shock. When the oil price halves, the national economy greatly benefits but the economy of north-east Scotland does not. The SNP should be careful what it asks for. Had it now got the full fiscal autonomy it sought, and ostensibly still seeks, it would be in dire fiscal straits.

The second category of central state responsibility must be to ensure, although not necessarily to provide, adequate access to education, healthcare, maternity care, care for the elderly and care for the disabled, to which the citizen of every modern state is entitled.

Thirdly, I believe the citizen has the right to expect that the central state will ensure, although not necessarily itself provide, that, wherever he lives, he enjoys equal access to adequate transport links, energy supply and internet connectivity—a sort of public service obligation provision.

If I am right, a fourth point follows. The per capita cost of providing my second and third categories of state services obviously varies with geography and is highest where population density is lowest. Maintaining roads is costlier in the Grampians than in Godalming. If citizens all have equal rights to such services—and I suggest that they do—the need for a central redistributive fiscal mechanism is clear. In all the countries where I have lived, the centre has supported the periphery. But equally clearly, this redistributive mechanism must operate to empirically determined and weighted criteria. It must not be a historical irrelevance like the Barnett formula.

We need a clear rationale and a system that reflects it. All my four categories of function need discussion from first principles. That, in my view, is where a convention should start. What is the union for and how can the services the union exists to provide for the citizen best be provided? The present situation, where the extent of devolution is determined solely by demand, which can never be fully satisfied without abandoning the union of these islands, is profoundly unsatisfactory. We must stop changing the constitution in sudden lurches, like last September’s extraordinary “vow”, penned by a columnist in the Daily Record, which is not normally seen even as a journal of record; or the Prime Minister’s extraordinary 7 am broadcast: the EVEL broadcast—I spell it with an “e” in this case in deference to the Prime Minister—or the back-of-the envelope solution to the Prime Minister’s question produced by Mr Grayling in the House of Commons this week, which, as a constitutional aberration, is extraordinary in my view. I agree with the noble Lord, Lord Norton, and with what the noble Lord, Lord Butler, said yesterday. This is no way to handle the constitution.

I hope that this House will look very closely at the drafting of the Bill. The principle is absolutely correct but the stability of a planetary system rests on the balance between centrifugal and centripetal forces. As it stands, the Bill suggests that the convention would be about centrifugal forces. I think it also needs to address centripetal forces. The terms of reference should be to find the point of balance and entrench it. When it has been found, the proper handling of issues of devolution—in Clause 2(a) and (b)—will follow; it can be derived from it. Similarly, the parliamentary reform agenda can be derived from it. One needs to start at the beginning. I would drop Clause 2(e), the idea that the convention should draft agendas for future conventions. I agree with the noble Lord, Lord Forsyth, that the idea of a perpetual Maoist revolution, with perpetual conventions—let alone referenda—is not what we want. What we want is stability. Let us stop endless improvisation. Let us pause and reflect. Let us get it right. By all means, let us have a convention. I strongly support the principle of the Bill introduced by the noble Lord, Lord Purvis.

--- Later in debate ---

[Lord Bridges of Headley]

Who would determine which parties were represented? Would it be the Secretary of State, the convention chair—if, indeed, there is one—or the public? Then there is the reference to local authorities. Which local authorities, and should this be determined on size? Would it be—I ask this with a certain interest—Surrey County Council or Mole Valley District Council, or would we simply be represented by the LGA? Then there is a vague reference to nations and regions of the UK. Would that include members of your Lordships’ House? How many of these representatives would come from England, where most of the population live, and who would choose the regional spread?

That begs another interesting question. Should there be one unified convention or a series of mini-conventions? If just one, how would the voices of each constituent part of the union be fairly heard within that group? Should they have a veto? What if representation from one nation disagreed with that from another? Here, I quote—

[Lord Kerr of Kinlochard]

The noble Lord picks the nits with great skill and precision but I wonder whether he is going to address the big issues here, particularly that raised by the noble Lord, Lord Soley—the need for a union narrative.

[Lord Bridges of Headley]

My Lords, I entirely agree that there is a need for a union narrative. I believe that this House has heard that many times—perhaps not many times but a number of times—from my noble friend Lord Dunlop and from me. As I said, it should be based on the principles of fairness, balance, proportionality and respect for different parts of the union, and I believe that, as we continue to debate these issues in, for example, the Scottish Bill and other pieces of legislation coming to this House, we will continue to flesh that out.

As I was saying, Alan Trench, a fellow at the Constitution Unit, commented:

“What is vital for Wales is of much less importance in eastern England. To the extent there is a ‘Scottish’, ‘Welsh’ or ‘north-east English’ interest in the Union, each of these is different. Trying to set up a convention to resolve these issues without being clear about what the interests of the various groups are, and how they relate to each other, will be impossible”.

Finally, there is an interesting reference to the fact that:

“At least 50% of the members of the convention must not be employed in a role which can reasonably be considered to be political”.

I understand the gist of the clause, but I think that a lawyer would be able to rack up quite large bills contesting its implementation. Those considered political might include trade union workers, pollsters and even journalists, while a seasoned activist with very clear political convictions could be considered an ordinary member of the public just by nature of his or her employment. Who these people are and how they are to be chosen is another potentially contentious issue on which the Bill gives little indication. As the outcome of a convention depends on its members, does it not worry noble Lords that there appears to be significant confusion and inconsistency as to who should participate in this one?

Those points may sound frivolous, and the noble Lord, Lord Kerr, may say that I am nitpicking, but they reflect a serious flaw, because the debate over who gets to debate these matters would be acrimonious, generating heat not light. As I said, we would need a convention before the convention has begun just to deliberate on all that.