Cabinet Office: Constitution Committee Report

Lord Pannick Excerpts

Tuesday 6th July 2010 Lords Chamber

[Lord Pannick]

My Lords, it has been a great privilege to serve on your Lordships’ Constitution Committee under the chairmanship of the noble Lord, Lord Goodlad. His wise judgment, experience of practical politics and deep commitment to fundamental constitutional principle embody all that the committee seeks to achieve.

The report that we are debating today examines a notorious episode when the Cabinet Office was unable to prevent a serious lack of judgment in practical politics that resulted in a fundamental breach of basic constitutional principles. The noble and learned Lord, Lord Goldsmith, has already drawn attention to the matter, but I will add some details. In June 2003, to the surprise and anger of the senior judiciary and politicians, who had not been consulted, the Prime Minister announced that the office of Lord Chancellor would be abolished and that a Supreme Court would be created to replace the Appellate Committee of this House. The noble Lord, Lord Turnbull, who was Cabinet Secretary at the time, gave evidence to the committee in which he agreed that the implementation of this reform, however sensible its substance, was “a complete mess-up”. For so distinguished a civil servant, who was always careful in his use of language, to apply such a term demonstrates the magnitude of this egregious mistake.

In his written evidence, the noble and learned Lord, Lord Irvine of Lairg, pointed out that as Lord Chancellor he had been kept in the dark about the proposal until very late in the day, because the Prime Minister, Mr Blair, knew that he would not support it. When he discovered how far advanced the proposals were, he understandably complained to the Prime Minister that it was constitutionally inappropriate for decisions of this importance to be made without consulting the Lord Chancellor, other members of government, the judiciary and, indeed, the authorities of this House, which would lose its Speaker. This was not so much sofa government as pulling the chair from under a senior member of the Cabinet as he was about to sit down.

That episode was an object lesson in unconstitutional government. Fundamental changes were announced without proper consultation and without proper consideration by politicians, who did not receive adequate advice from senior civil servants about the impropriety of their conduct. If they did receive proper advice, neither the Cabinet Office nor the Cabinet had the power to prevent such an abuse of proper process. That these reforms were designed to secure greater transparency in the legal and political process is a rich irony, which was entirely lost on their promoters.

The merits of the substantive reforms that were eventually introduced, which I entirely support, cannot begin to excuse the abuse of proper process. Your Lordships’ Constitution Committee has done a valuable service in casting considerable light on this unsavoury episode in our constitutional history. Before this report, students of our constitution who wanted to know how and why proper governmental processes failed so abjectly in 2003 would find little on the subject, apart perhaps from Mr Alastair Campbell’s diaries. The entry for 12 June 2003 commences:

“TB was dreading the Derry discussions”.

It is a matter of considerable regret that these events occurred at all in 2003, but it is truly astonishing that the previous Government did not understand these issues seven years later when they published their response to the committee’s report, dated 31 March 2010. The response says that it was not possible to consult the judiciary in 2003 because the Government had not consulted their own Lord Chancellor. If a Prime Minister does not have sufficient confidence in his Lord Chancellor to discuss matters of profound constitutional reform, the obvious answer is not to go ahead with reform behind his back but to appoint a new Lord Chancellor to consult and, through him, the judiciary. The 2003 process remains a serious stain on the reputation of the previous Government. Their 2010 response to the committee’s report shows an obstinate refusal to understand the need for proper process in considering constitutional reform, even when the issues are set out with conspicuous clarity in the report.

I dwell on this extraordinary episode not just because it is of historical interest and importance. I hope that the present Government will study the report so that when they bring forward, as they will, their proposals for constitutional change they will have understood better than their predecessors two vital constitutional imperatives. The first is the need for full consultation on proposals for constitutional change, which means that they do not just consult those who agree with them but listen with an open mind to views other than their own. The second imperative is that proposed constitutional change should be rooted in an objective assessment of the advantages and disadvantages. It must not be based on perceived short-term political advantage. That is how this House will judge the proposals for constitutional change to be brought forward by this Government.