Constitutional Change: Constitution Committee Report

Lord Rennard Excerpts

Wednesday 7th December 2011 Grand Committee

[Lord Rennard]

My Lords, as a relatively new member of this Select Committee, I found it to be an interesting inquiry. We produced a useful report and I greatly admire the skill with which the noble Baroness, Lady Jay, steered us through our deliberations. For some people, the report would make entertaining reading about some of the key features of our uncodified constitution—of which some, perhaps, are unaware. The report highlights what some would consider to be significant flaws in our constitution. The committee itself did not favour that which I have always favoured: a written constitution. When I asked the Deputy Prime Minister giving evidence to the committee about this long-standing Liberal Democrat policy, he made it plain that the coalition Government have no intention of introducing one. One of the many benefits of a written constitution would be that it would contain within it a prescribed mechanism for constitutional change. I therefore listened to members of the committee and found it somewhat ironic that so many were genuinely keen to see significant procedures followed if there was to be any constitutional change, but not keen to see what the constitution actually is, or how to change it, written down in a codified manner.

The report elucidates what I think is a key problem with our constitutional arrangements at paragraph 23, stating:

“Aside from the limited power of the House of Lords under the Parliament Acts to delay or reject legislation, there is no formal system of checks and balances by which the integrity of the UK constitution can be safeguarded and protected. Thus there is little to constrain the ability of a government which commands a majority in the House of Commons to get its way”.

That is the fundamental problem with which we were concerned in this inquiry. Attention was drawn to this problem by the astute political commentator Andrew Rawnsley, in Servants of the People, his study of Labour’s first term after 1997. In that book he said:

“Within his own universe, no democratic leader is potentially more powerful than a British Prime Minister with a reliable parliamentary majority and an obedient Cabinet”.

On re-reading our committee’s report, I felt even more strongly than I did at the time that its central recommendation—that a clear process be followed when constitutional change is proposed—would have a much more limited effect on executive power than proper, codified constitutional arrangements would. However, short of such a constitution, it is welcome that a written ministerial statement of this kind should be proposed.

In the mean time, I will of course continue to argue for more far-reaching changes than such a statement to address the problems of excessive power that the committee outlined in paragraph 23. First, I would still argue that the most effective curb on excessive executive power is for the Executive not to have a majority, as is the case in the House of Lords and as would normally be the case if we had a more representative system for elections to the House of Commons. Secondly, I would point out that the introduction of a stronger check and balance on the dominance of the Executive would come from a democratic second Chamber, which would be emboldened more regularly to say no to the Executive.

At the outset of our deliberations on all these issues, the committee benefited greatly from the membership of some of the former Ministers responsible for a very good period of constitutional change—or constitutional reform as you may wish to define it—between 1997 and 1999. As my noble friend Lord Maclennan of Rogart said earlier, this period’s success could be demonstrated by the way in which we were able, relatively rapidly, to reach agreement through both Houses of Parliament on devolution to Scotland and Wales, the introduction of proportional representation for the European elections, freedom of information legislation and the incorporation of the European Convention on Human Rights into British law. However, the basis of achieving such rapid progress in the first two years of a Government was that two parties were able to co-operate in opposition over a significant period, and with independent academic expertise advising us.

I pay tribute to my noble friend Lord Maclennan of Rogart and say how much we miss the late Robin Cook. Between the two of them, they successfully chaired that committee in the autumn of 1996 and early 1997. I was privileged to be its joint secretary and it did a great deal of good in advancing the process of constitutional change.

The committee also had a concern, set out in paragraphs 27 to 29, about the lack of an overarching programme of reform with coherent values running through it. The committee was generally more critical of the first year or two of this Government than it was of that period in 1997 and 1998. I share the committee’s concern about some of the process of constitutional change since the general election and was happy to endorse the report’s criticism. However, I also fear that in some senses there could have been more of a public backlash against a very overarching programme. The problem is that if you had a more clearly explained overarching programme, which belonged simply to one party, some people might consider it to be an overreaching programme. If a Government then tried to act more rapidly than has perhaps been the case—in a big-bang, too-big-too-fast way—there would be public opposition to such a programme of change. I do not agree with the noble Lord, Lord Wills, about public engagement but, following his remarks, a safeguard against any one party in a future Government making changes too rapidly and in an ill thought-out way would be to have more consistent public engagement.

Reformers of the constitution have long talked about different forms of constitutional convention that could be established, involving different parts of civic society—perhaps a cross-section of Parliament and randomly selected members of the public. Indeed, the Scottish Constitutional Convention gave us a very good model of how different parties, people not involved with parties at all, the church and religious organisations et cetera could get involved in suggesting a way forward so that, when a Government are minded to act, there is a blueprint for how to proceed. If we are to have an overarching programme, it may well be that such a convention would have to be its genesis to prevent the same sort of controversy attaching to it as has perhaps been attached to the opening years of this Government’s constitutional reform programme.