Constitutional Convention Bill [HL]

Lord Kerr of Kinlochard Excerpts

Friday 11th December 2015 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, I did speak at Second Reading. The main point I made was that I thought the Bill was far too ambitious. I am very disappointed to see that the terms of reference in Clause 2 remain pretty well as they were at Second Reading, although I thought the noble Lord said that he would consider the fact that there might be quite a lot to do.

The Economic Affairs Committee of this House spent four months looking at the single issue of the financial consequences of devolution in the United Kingdom and produced an excellent report, which has had quite an impact in Scotland and beyond in making people aware that it is necessary to agree and know the fiscal framework before you set in place further structures of devolution. I do not quite know how it would be possible for this constitutional convention not only to consider,

“the devolution of legislative and fiscal competence to and within Scotland, England, Wales and Northern Ireland”,

but deal with,

“the devolution of legislative and fiscal competence to local authorities within the United Kingdom”,

and,

“the reform of the electoral system”,

and,

“the reform of the House of Lords”,

which we have spent more than 100 years discussing. Furthermore, I looked for the kitchen sink, and the kitchen sink is there, described as,

“constitutional matters to be considered in further conventions, and … procedures to govern the consideration and implementation of any future constitutional reforms”.

The convention has to do all this within a year. It is ridiculous.

Who will do this? The convention will be composed of representatives from,

“registered political parties within the United Kingdom”.

I think there are about 600 registered political parties in the United Kingdom, a point that was made very eloquently by my noble friend in winding up at Second Reading, but that is what we are still left with in Clause 4, along with representatives of “local authorities” and,

“the nations and regions of the United Kingdom”.

In addition:

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

First, finding such people might be difficult. Secondly, there is the experience that we have had with the Smith commission. One has only to read the Committee debate so far on the Scotland Bill to see the mess you get into when you have a group of people working out what they would like to happen without advice and without the ability to translate that into legislation.

It is also quite an impertinence to suggest that issues relating to reform of the House of Lords are matters that should be decided outside this House and outside Parliament. The noble Lord chuckles, but it would be extremely difficult for people to be educated on and understand the procedures of this House and achieve everything within a year. Although I very strongly support the idea of a constitutional convention with the limited purpose of sorting out the mess that we have brought ourselves into because of piecemeal constitutional reform, we have already determined what we think about House of Lords reform. We spent a large slice of the last Parliament discussing it. As for the noble Lord, Lord Grocott, I have always thought of him as a radical and not a conservative, but a radical with common sense, intellect and a practical frame of mind.

It just seems to me that the noble Lord, Lord Purvis, is putting forward a Bill that will discredit the idea of having a constitutional convention and make it very easy for those of us who support having one to be brushed aside by the Government on the basis that what is being proposed in the Bill is unrealistic. I very much hope that Clause 2 does not stand part of the Bill as drafted. If it does, the Bill will have to be consigned to the wastepaper bin, for it does not offer a way forward on determining our constitutional arrangements.

[Lord Kerr of Kinlochard (CB)]

My Lords, I very much agree with the first two points made by the noble Lord, Lord Steel of Aikwood. It was very striking in our Scotland Bill debate how general is the consensus in this House on the need for a convention and how general is the concern that proceeding piecemeal is a very bad idea. It has got us into a lot of trouble.

I oppose Amendment 1, which I think is what we are trying to do. I am against Amendment 1—

[Lord Forsyth of Drumlean]

We are discussing Clause 2.

[Lord Kerr of Kinlochard]

The stand part debate? Very good. I support the Bill that the noble Lord, Lord Purvis of Tweed, has put forward, and congratulate him on doing it. I agree with the principle of it, but I do not agree at all with Clause 2, which seems far too long and detailed. We need to stop, reflect and think about principles. We need to start with a long period of reflection. I am also against Clause 3, which sets a timetable. Like the noble Lord, Lord Forsyth, I do not think it a timetable that could possibly work.

I was secretary-general of a convention which sat for 16 months, with four or five months of reflection, four or five months of working groups and then a drafting session at the end. We were overambitious and tried to do too much, and then were shut down by the Governments, who refused to extend our timetable. These were both mistakes. The idea of a period of reflection—which was President Giscard’s idea to begin with—was a very good one. That is how conventions should start. Clause 2 is overprescriptive in setting out the tasks that the convention should attempt—we are overdefining here.

My terms of reference would be very simple: “The convention must consider the governance of the kingdom, the relationships between its constituent parts and appropriate devolution of legislative and fiscal competence”. I would go back to principles. I do not think it a good idea to consider devolution to local authorities, as Clause 2(b) suggests. That is a secondary issue, and there is no reason in my view why there should be absolutely standardised devolution to local authorities across the kingdom as a whole. It could vary in the constituent parts.

On reform of the electoral system, I echo what the noble Lord, Lord Grocott, said. It seems to me that there is no longer a single electoral system: there are a lot of electoral systems. I have no reason to think there should be a standardised electoral system. It is not necessary for the system for local elections in Scotland to be exactly the same as that for local elections in England, for example—if such was the agreement of a convention starting from principles, Parliament should be invited to devolve generally.

I absolutely do not think that reform of the House of Lords is appropriate to a convention that is looking at principles. The composition of the House of Lords should be a function of the House of Lords: one needs to decide what the House of Lords is for. A constitutional convention ought to fetch up consideration of what cements the union—what are the appropriate ways of holding the union together? In my view, there is a considerable role for the House of Lords in that. But it would be a mistake to consider reforming the House of Lords at the same time as examining the fundamental principles, before you have reported back to Parliament and the country about those principles and discovered whether they are to some extent acceptable. There is too much bottom-up in here. We need to start with thinking about general principles, rather than getting into too much detail.

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[Lord Forsyth of Drumlean]

Did the noble Lord notice that this very week, the Scottish Parliament sought to argue that the Sewel convention would apply to the Trade Union Bill? The Presiding Officer took the view that it would not but the First Minister indicated that she plans to have a word with the Prime Minister about this, arguing that because there are trade unions in Scotland, there is a Scottish dimension and therefore there should be some kind of legislative consent procedure. Does that not underline how important it is to define what is meant by the Sewel convention and to have legislation that is clear?

[Lord Kerr of Kinlochard]

I entirely agree with the noble Lord, Lord Forsyth, and look forward to agreeing with him again on Monday when the issue for debate is financial privilege.

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[Lord Purvis of Tweed]

There is nothing in Clause 2 that would prevent that. On that point of broad consensus—

[Lord Kerr of Kinlochard]

The trouble with overspecifying, as Clause 2 does, is that you require people, before they report, to have considered everything. The first report should be about principles. Perhaps that would be the only report and the convention would never meet again, or perhaps it would, but when it comes to things such as the House of Lords, it should be considering them on the basis of principles that have by that stage, one hopes, been debated across the country, in this place and the other place, and have achieved a degree of consensus. Then it would consider the role of the House of Lords in the union, how can it best discharge that role, and how can it best be composed to do so. If you put on your original shopping list that, before the convention tells us anything it must make sure that it includes proposals to reform the House of Lords, you are making a terrible mistake. You would do much better to stick to the high ground of principle.

[Lord Purvis of Tweed]

As a Liberal Democrat, I never want to move away from the high ground of principle. The noble Lord seeks to bring me down to lower land.

Fundamentally, I do not believe we are that far apart. Of course a convention will have to start with consideration of what the principles of this union are. I rehearsed that argument at Second Reading and I need not do so again. Equally, though, I know the Government are taking forward a programme of reform, much of it based on cross-party consensus, with legislation and proposals, and I would not wish to set those apart. As I said, the fundamental difficulty is over how all those are being held together under the principles that the noble Lord indicated. I believe that setting a framework of specific areas that the convention should cover, within the overall aim of trying to secure a holistic view of what the union is for, is captured within Clause 2.

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[Lord Kerr of Kinlochard]

Americans are always very surprised that we get by without a written constitution. That we could create a Supreme Court and lose the Law Lords from this House without any sort of supermajority or national consultation, merely by votes of these two Houses, baffled them. I have always been against a written constitution and feel that the arguments against it grow with devolution.

The difficulty posed by a written constitution, once you have got one, is that of amending it when new circumstances arise. If we had a written constitution in this country now, with devolution where it now is, we would be like the United States in 1787: we would be obliged to make sure that there was at least a majority of the constituent parts of the kingdom in favour of the change. If the majority was a simple majority, with three to one in favour, we would have a recipe for difficulty in the future. If it was four to zero, we would have a recipe for deadlock in the future. Although I have been inveighing against the Government for being a little over-flexible in their approach to constitutional change, flexibility is a good thing and I am therefore against the amendment.

I served the convention in an official capacity and three Members of this House were genuine members of that convention. They would all have believed that the noble Lord, Lord Purvis, is correct and that we should have a convention on this, so having me working for them did not turn them absolutely off the idea of a convention. The worst mistake we made—I can say that I argued against it—was what we called our product, which was a draft treaty between individual nation states and began with listing the signatories to the treaty, such as the King of the Belgians and so on. On the title page, we wrote that it was a “Draft Treaty establishing a constitution for Europe”. That was a great mistake, because it was not; it was a treaty. The idea of a written constitution for Europe was offensive to quite a few people. It was a terrible mistake. Flexibility is, on the whole, a good thing—though it can be carried too far, as recent events in this country have shown. Therefore, I speak against this amendment.

[Baroness Hayter of Kentish Town]

My Lords, I am not absolutely certain that the Labour Party has a position on this. However, as it has never called for a written constitution, I am going to take it that the Labour Party is against a written constitution—or at least, I am. As I said at Second Reading, I had a lovely cartoon from the New Yorker showing bewigged, 18th-century gents writing the American constitution and then putting at the end, “And no one will ever alter this”.

I do not support my noble friend on this amendment. However, had he used the word “concordat”—something to get the relationship between the two Houses agreed, which in some sense goes to what the noble Lord, Lord Forsyth, said earlier about function; that we should agree what the role of the two Houses are—I would have thought that this was a brilliant amendment. The idea of us having that serious conversation is one that I absolutely support. There are really big questions about that. It is not just about whether we get to vote on statutory instruments. It is about the relative roles in that and how often it is used. Particularly when we think of our size, if we become smaller and still have no retirement age, we will have an increasingly older and smaller group of people doing that diligent work on statutory instruments. Those are important discussions. I like one part of the amendment, which is to give some serious thought as to the function of both Houses. But please, while we may not be bewigged we should not be setting in stone the way in which we work in the short term.