Queen’s Speech

Lord Norton of Louth Excerpts

Monday 21st October 2019 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, the gracious Speech is welcome in identifying a range of measures of domestic importance and not focusing exclusively on Brexit. However, Brexit is the fundamental issue facing the nation. A combination of unique developments has resulted in the debate surrounding Brexit putting our constitutional fabric under intense pressure.

The debate on Brexit is toxic and it is binary. We are used to the politics of justification, with each side able to engage with the other. What we now have is the politics of assertion, with each side shouting at the other and not being interested in the response. The language is stark and often takes the form of accusation and abuse. The nature of the debate is exacerbated by, and contributes to, the tensions that now exist and which pose a serious threat to the Westminster model of government. Those engaging in the debate are so consumed by the moral superiority of their policy goal that they treat our constitutional arrangements as secondary to achieving that goal.

At the heart of the Westminster system is the concept of accountability. There is one body responsible for public policy—the party in government. Collective responsibility ensures that it is a united entity, accountable between elections to Parliament and at elections to electors. Parliament scrutinises and challenges the Government but does not seek to substitute policy of its own. MPs have always privileged party above the interests of the House of Commons. Party, however, has facilitated accountability. We are in an exceptional situation where no one body is accountable. Electors cannot hold themselves to account for the outcome of a referendum. Electors cannot hold to account a transient majority comprising an ad hoc amalgam of parties and independents in the House of Commons.

The position we are in derives from the collision of two concepts of democracy. We had an exercise in direct democracy in the form of a referendum, and an exercise in representative democracy the following year, producing results not clearly compatible one with the other. The House of Commons has sought to wrest control of public policy from the Government. That, as I have argued before, is not “taking back control”: you cannot take back something you did not have in the first place. Because a transient majority cannot be held to account, it is an exercise in power without responsibility.

It is a unique situation and it is important that we do not seek to generalise from an N of one. We need to stand back and make sense of what is happening, not rush to judgment with calls for reform of the constitution. We hear calls for a written, or codified, constitution. It is not clear how, had we had one, the present situation would be any different. It is not so much an answer as a displacement activity.

The gracious Speech has the merit of not rushing to judgment and advancing any constitutional reform. I welcome that. I also caution the Government against listening to those who, in their failure to grasp the principles of our system of government, advocate change to bodies that produce decisions with which they disagree, be they the courts or this House. Perhaps my noble friend Lady Williams will confirm that the Government have no plans for changes to our constitutional framework and that Ministers will comply not only with statutory obligations but with the expectations and moral obligations imposed by conventions of the constitution.

Our system of government is sound, but recent events have undermined popular support, especially for the House of Commons. The most recent Hansard Society Audit of Political Engagement showed that only 25% of those surveyed had confidence in the Members of the House of Commons in handling Brexit; 73% had not very much or no confidence. Furthermore, 42% of those questioned agreed with the statement:

“Many of the country’s problems could be dealt with more effectively if the government didn’t have to worry so much about votes in Parliament”.


That is a remarkable finding, impossible to imagine in earlier years.

The challenge for parliamentarians, especially Members of the other place, is to recognise that the solution lies not with constitutional reform but with their own behaviour. They are part of the problem. They need to become part of the solution. That requires a degree of balance and self-awareness that has been sadly lacking.

Parliament: Freedom of Speech and the Rule of Law

Lord Norton of Louth Excerpts

Thursday 23rd May 2019 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I too congratulate the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on raising this important issue. I will focus on the sub judice rule. Like my noble and learned friend Lord Mackay of Clashfern, who is still with us, I do not propose to comment on any particular case.

As the 2012 Green Paper and 2013 report of the Joint Committee on Parliamentary Privilege noted, references to privilege may appear archaic and misleading. They mask the importance of Article 9 of the Bill of Rights; it is fundamental to Parliament being able to discharge its functions.

As so often, rights need to be matched by responsibilities. The sub judice rule, as the noble and learned Lord, Lord Nicholls of Birkenhead, stressed some years ago in evidence to the House of Commons Procedure Committee, is a self-imposed rule. Its embodiment in the rules of both Houses has developed over time, with some uniformity now between the two. The first edition of Erskine May made no reference to it. As Eve Samson points out in her study of privilege, it first appeared unambiguously in the 10th edition in 1893, which stated:

“A matter, whilst under adjudication by a court of law, should not be brought before the house by a motion or otherwise”.


The rule has been developed and reported on by Joint Committees and the Commons Procedure Committee. There is a recognition of its importance, not just for comity between the legislature and the courts; as Lord Nicholls said, it,

“goes much deeper than that, because it is inherent in the proper discharge by the courts and Parliament of their separate constitutional roles”.

It is vital that both Houses retain freedom of speech to carry out their functions, but it is essential to the courts in fulfilling theirs that the rule is observed. The courts must operate free of parliamentary interference and must be seen to do so. Judges may well be able to ignore or resist MPs or Peers making comments about live cases, but they need to be seen to be free of such interference.

For reasons of time, I shall make just a few core points. The Motion refers to the right of Members to speak freely in Parliament but, as has already been touched on, the essential constitutional point is that the right exists for the benefit of the House. Members in exercising their freedom of speech need to have regard not only to protecting the rule of law, but also to protecting the reputation and role of the House of which they are Members. There have been various problems with breaches in the past, not least in this House in respect of coroners’ courts. Both Houses have since agreed changes to the Standing Orders. If there is a problem, is it with the rule as embodied in the Standing Orders, is it with Members not knowing the rule and its importance, or is it both? I see no reason why Members should not be reminded regularly of the rule. It should form part of the induction process for new Members. It need not be in the form of repeating the Standing Orders, but rather simply in the form of, “If a matter is before a court—any court—it is best not to raise it”. I would add, “If you do plan to raise it, take advice first”.

There is also a case for considering how we deal with the rule. The difference between the two Chambers is in the position of the Speakers. The Speaker in the House of Commons can intervene in a way that the Lord Speaker cannot. The briefing note for the debate reminds us that it is open to any Peer to move,

“that the noble Lord be no longer heard”.

That is a blunt weapon and depends on a Member of the House recognising that the rule is being broken, that it is being broken inappropriately, and being quick- witted enough to get to their feet to move the Motion, which itself is debatable. I think we need a more robust way of dealing with transgressions along the lines indicated by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. For that reason, I would favour the matter being referred to the Procedure Committee. Rather than coming up with any particular solutions today, that is the route to take, and the very fact of the committee considering the matter and inviting comments will itself raise awareness of the rule. My question to my noble and learned friend Lord Keen and the noble Lord, Lord McFall, is this: do you not agree?

European Union (Withdrawal) Bill

Lord Norton of Louth Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Lord Adonis]

My Lords, we can already see this evening what will be the Government’s formula to get these statutory instruments through: they will produce them at 12 minutes past midnight, put forward the noble Baroness, Lady Goldie, to propose them, and then they will go through on the nod with nobody daring to protest and us all thinking that it was the best possible thing that could happen.

The real danger facing us is not the procedure; I think we can get too hung up on that. In particular, I do not agree with the noble Lord, Lord Sharkey, when he said that there was great constitutional tension caused by the rejection of the tax credits orders. The crucial thing to remember about that rejection is that the Government accepted it immediately—they did not seek to reverse the rejection in the Commons because they knew that they did not have the majority for it in the Commons. It was a legitimate use of your Lordships’ role, which is to require the House of Commons to think again. What in fact happened, under the smokescreen of the Strathclyde report, was that the Government were forced to think again, they did not have a majority and they backed down.

The real issue with these regulations, which no one has an answer to because we are in such unprecedented circumstances, is not the precise procedure—although it is better to have an affirmative procedure than a negative one for issues of consequence—but the volume of orders that will hit us. It is going to be colossal, given the scale of law that has to be transposed and the amount of consequential legislation that is going to follow in the process of transposing it. Nothing that I have heard in our consideration so far gives me any reassurance at all that we are going to be able to cope with the sheer volume of it—unless the noble Lord, Lord Taylor, with his great skill in these matters, manages to ensure that all these orders come before the House between midnight and 4 am, when they will be proposed by the noble Baroness, Lady Goldie, and will all go through without us really realising what has happened, under a kind of parliamentary anaesthetic, which she does such a good job of imposing on us all.

[Lord Norton of Louth (Con)]

My Lords, I support the amendments that have already been spoken to most eloquently by the noble Lords, Lord Lisvane and Lord Sharkey. I have added my name to Amendments 237A and 239A. The only reason my name does not appear on Amendment 237 is that others got there before me. I will keep my comments brief as I am conscious of the time and I do not wish to repeat points that have already been made by noble Lords, although I appreciate that that did not stop quite a lot of noble Lords earlier in our proceedings.

I serve on the Constitution Committee of your Lordships’ House, and to some extent these amendments cohere and flow from what we put in our report. I remind the Committee of what we said in paragraphs 227 and 228:

“The Bill does not give the sifting committee(s) power to strengthen the parliamentary control of an instrument, only to recommend that it be strengthened. We recommend that committee(s) should be empowered to decide the appropriate scrutiny procedure for an instrument, subject to the view of the House, in order to provide the necessary degree of parliamentary oversight”.


The report continues:

“In our view, the Bill as drafted proposes scrutiny measures that are inadequate to meet the unique challenge of considering the secondary legislation that the Government will introduce once the Bill is passed”.


The amendments that have been put forward meet the balance that is necessary in order to deal with the volume that will be coming to us but in a way that strengthens the House in relation to the Executive. They achieve some degree of the recalibration that is necessary in the Bill.

I have considerable sympathy for Amendment 238, tabled by my noble friend Lord Hodgson of Astley Abbotts, but the amendments that have been moved strike the right balance and I hope that the Government will look favourably on them because, if they do not, we may have to move more in the direction of the amendment proposed by my noble friend Lord Hodgson.