Constitutional Convention Bill [HL]

Lord Norton of Louth Excerpts

Friday 17th July 2015 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I, too, congratulate the noble Lord, Lord Purvis of Tweed, on bringing forward this Bill. However, like my noble friend Lord Forsyth, I have various difficulties with it. Constitutional change has occurred in recent years on an extensive scale and continues to take place. There are three distinct directions in which we can go in terms of such change. These can be subsumed under the headings of “incoherent”, “measured” and “new”. We have had major changes in recent decades under successive Governments, but each change has been justified on its own terms. There has been no serious attempt to look at the constitution as a constitution and consider what type of constitution we wish to achieve. There has been an intellectual discourse on different approaches to constitutional change but the measures pursued by government have not adhered to any one approach. There has been no intellectually coherent approach adopted by government. As a consequence, our constitution will be the sum of a range of disparate and discrete measures imposed on our existing constitutional arrangements. Without taking action, we will continue on what is an uncharted and potentially dangerous path.

I move from the incoherent to the measured. This is where there is some consideration of how changes fit within our constitutional arrangements. This entails reflection and dialogue, and seeing how existing and proposed changes impact not only on the constitutional framework of the United Kingdom but on how they relate to one another. No reform is exclusive to itself. Hence, my argument, which I have previously developed, for a constitutional convocation, a body that can make sense of where we are and provide some coherent framework for understanding how further changes relate to existing arrangements and to one another. It would provide some shape but without committing us prematurely to some new constitutional settlement.

This brings me to the third direction. This is where we move to a new paradigm, in effect a new constitutional settlement, which may mean a codified constitution. The vehicle that has been variously recommended for delivering this is a constitutional convention, which, to quote Black’s Law Dictionary, is:

“A duly constituted assembly of delegates or representatives of the people of a state or nation for the purpose of framing, revising or amending its constitution”.

The Bill is designed to formulate a new constitutional settlement, or at least a part settlement, for the United Kingdom. The sheer scale of change we have witnessed constitutes an argument against establishing a body that would craft a new constitution before we have had time to understand the consequences of those changes already undertaken or to which the Government are already committed. I want us to make sense of where we are, to understand what principles underpin, or have underpinned, the changes of recent years.

We are frequently reminded of the saying, “If I was going there, I wouldn’t start from here”. My point is that not only have we not determined where we are going, we have not even determined exactly where we are. My argument is that we need a much clearer sense of where we are constitutionally, of how the parts of the constitution as it now is hold together, if they do, before attempting to create a new constitutional architecture.

I turn to problems with the Bill on its own terms. The noble Lord, Lord Purvis, rather skated over the provisions of the measure. It prescribes a limited number of subjects to be considered initially by the convention. I can understand the reasons for that but the parts of the constitution adumbrated in Clause 2 impact not only on one another but on other parts of the constitution not specified in the clause. It does not provide for an extensive examination of one part of the constitution but neither does it provide for looking at the constitution as a whole.

The provisions for a convention are too imprecise in form. Too much is left to the Secretary of State. The intention of utilising a convention, with at least half not drawn from politics, is presumably to establish some degree of public trust but it is not clear how that will be achieved. How many people will be chosen? How will they be chosen? What qualifications, if any, will they be expected to have? Do we go for ordinary members of the public? If so, will they be chosen by election, by lot or by nomination? Election may be preferable for the purpose of trust but, given that a proportion must not be politicians, on what basis will electors be making a choice? I agree with my noble friend Lord Forsyth and others who have spoken in the debate that the convention is given an essentially impossible timetable. If one is going to take seriously the task of examining thoroughly all the subjects specified in Clause 2, it will not be possible to do it within 12 months.

The Bill shows the problems with trying to create a constitutional convention when one is dealing with an extant constitution. We are not in the situation in which conventions normally find themselves. We have nothing approaching a clean slate or even a moderately clean one. Ours bears the markings of centuries, as well as the rushed and extensive writings of recent years. Trying to make sense of that and where we go imposes a particular burden that cannot be borne lightly or undertaken in haste.