Constitutional Change: Constitution Committee Report

Lord Parekh Excerpts

Wednesday 7th December 2011 Grand Committee

[Lord Parekh]

My Lords, it is a pleasure to follow the noble Lord, Lord Hennessy of Nympsfield. I begin by thanking and congratulating the noble Baroness, Lady Jay, on the quality of the excellent report and on the wonderful and very articulate way in which she introduced it. I do not want to talk about the details of the report, most of which I welcome. But those of us who are sympathetic to the report find the Government's response deeply disappointing—something which, if submitted by an undergraduate, my good and noble friend Lord Norton would fail. If one looks at the Government’s response very closely, one gets the same feeling: that if this report were submitted by an undergraduate, the Government would fail it. The question to ask is, therefore: why is it that two sets of highly intelligent people disagree so profoundly on a matter of such great importance? Whenever that happens, it is always good to step back and ask oneself the following question: what is the deep disagreement about?

In this case, the deep disagreement is about the nature of the constitution and the constitutional change. The committee takes a particular view of the centrality of the constitution to the life of a political community, and believes that the constitution occupies an autonomous space and is “qualitatively different” from issues relating to policy and ordinary legislation. The Government make the opposite presumption that the constitution, certainly in a country such as ours, is not terribly different from ordinary forms of legislation and policy, and that the division between Bills should be made on the basis not of whether they are constitutional, but rather on how controversial they are and what kind of impact they will have upon society.

As somebody who has spent his life teaching the philosophy of constitutions, I thought I would step back a little and look at the nature of the role that the constitution plays in the life of a society and why, in our country, for the past 200 years there has always been a deep tension between two different views about the nature of the constitution. Those two views are articulated and reflected in the debate in which we are engaged.

The constitution does three things. First, it is obviously concerned with procedures, as the noble Lord, Lord Hennessy, said, but not just with them. It is also concerned with fundamental rights and liberties which are not just matters of procedures. The constitution constitutes a community. In other words, it is concerned with the procedures, principles and institutions which make it the kind of community it is and define its political identity. Secondly, these principles and procedures enjoy broad-based consensus and command the allegiance of ordinary citizens. Citizens may disagree deeply about a lot of things, but they are agreed on one thing: “These are the fundamentals to which we are committed, and therefore however much we disagree on partisan lines on other things, this country belongs to us because it is based on principles to which we subscribe”.

Thirdly, these principles and procedures enjoy a privileged status and may not be altered in the same way that other arrangements might be. Their alteration is reflected in some constitutions by requiring a supermajority—in other words, numerical majority is not enough—but that is not necessary. The privileged status of constitutional principles and conventions is recognised in the fact that they should be changed self-consciously, in full recognition of their importance, and after most careful parliamentary scrutiny and public debate. This is very easy to see when a constitution is written, because the constitution is clearly marked off from the rest of society. It occupies an autonomous space of its own; people know when the constitution is being debated and when something else is being debated.

When a constitution is unwritten, such as is the case with ours, there are several dangers. Constitutional changes are not clearly marked off from other changes and there is therefore always a temptation to make changes stealthily and not to bring them out into the open in debate, or to make them unself-consciously. In the same way that we seem to have acquired the empire absent-mindedly, we seem to be doing lots of things absent-mindedly in this country. In other words, in the case of an unwritten constitution, there is always a danger of blurring the most central qualitative distinction between constitutional matters and ordinary matters. Because this distinction is not recognised in an unwritten constitution, it fails to perform the function of a constitution and, therefore, virtually ceases to be a constitution.

At the heart of the unwritten constitution is a paradox. Precisely because it is unwritten, it is in danger of blurring the distinction between constitutional and non-constitutional changes, and therefore of undermining the constitution itself. I suggest that this is what has tended to happen in Britain over the past few years, particularly under the coalition Government: it is not right in principle and it creates practical problems. The Select Committee is absolutely right to highlight this central fact. Once we recognise that, all the changes that it proposes automatically follow, bar the practical consequences of a referendum and other things, with which one might disagree. However, by and large, all the Select Committee’s recommendations are underpinned by this central assumption.

It is precisely this that the Government’s response fails to recognise. They do not see the specificity and the distinctive nature of the constitution. While the Select Committee stresses the vital distinction between constitutionally significant changes and ordinary changes, the Government want to divide legislation according to—I could quote half a dozen phrases here—the scale of social impact, the effect on the daily lives of citizens or whether the changes are controversial and arouse considerable political concern. When the committee says that for constitutional Bills there should be a minimum of three weekends between First and Second Reading, the Government say, “Yes, you can have three weekends but not for constitutional Bills. It all depends on the Bill’s impact, complexity and how controversial it is”. In other words, they both recognise the importance of the recommendations but concentrate on different things.

The same difference is evident at almost every level. When the committee says that post-legislative scrutiny is necessary for constitutional Bills, the Government say, “Yes, but not for constitutional Bills—only for those that have a high social impact or are controversial”. That is the crux. In other words, the Select Committee wants to push our unwritten constitution in the direction of having the status of a properly written constitution. You can have an unwritten constitution but it must have the status of a written constitution. On the other hand, the Government want to move in the opposite direction. They do not want the constitution to have the status and sanctity of a constitution, and they therefore reduce important constitutional considerations to ordinary matters.

I suggest that the difference between the two views is profound. It is not just limited to the Select Committee on the one hand and the Government on the other. It lies right at the heart of contemporary British political discourse and the history of British political tradition over the past 200 years. Therefore, if the Select Committee wants to carry the country with it—I hope it will, since it has certainly carried me with it—it needs to do one very important thing. It needs to explain why the qualitative distinction between constitutional and non-constitutional changes is so crucial; and why, if you blur it, you risk, as the noble Lords, Lord Hennessy and Lord Desai, and others have pointed out, politicising fundamentals of our lives and creating a situation where we may have no solid ground on which different political parties can be united.

I very much hope that the Committee will consider something along these lines. Once we do, the next question becomes easily manageable—namely, what is a constitutional change? Many of us who have thought about this can give half a dozen different answers. In the case of our system, it is not very easy but here the committee is not entirely sure of its ground. It uses all kinds of phrases, such as “constitutional change”, “significant constitutional change”, “less significant” and “more significant”. This is not the appropriate vocabulary when talking about a constitution. Either something is constitutional or it is not. If it is constitutional, it is by definition significant. We need to take the next step and show that a constitutional practice can be defined in a straightforward way.