Constitutional Change: Constitution Committee Report

Lord Renton of Mount Harry Excerpts

Wednesday 7th December 2011 Grand Committee

[Lord Renton of Mount Harry]

My Lords, it is my privilege to follow our chairman in this debate. First, we had a very efficient chairman who made us all work hard—no sleeping at all. In the end, she produced a very interesting report. I also thank the legal advisers and the clerk for all the work that they did. I am rather sorry that I am speaking number two, because I am going to be a bit difficult on this issue. I have obviously read the reply from the Government. I think that our ideas were certainly well thought out and sensible, but there were moments when they were perhaps a little over the top. Paragraph 104 says:

“We consider that comprehensive post-legislative scrutiny should be a requirement for all significant constitutional legislation. Each minister should set out the government’s plans for such scrutiny in their written statement”.

The actual chances of getting any such word from a Minister are very small, because they are generally far too busy and will stay that way. However, it was well thought out, even if a bit over the top.

I am impressed by the Government’s response, which is sensible and has made me think again. I would particularly like to quote the beginning of paragraph 4, on page 5 of that response:

“The Committee suggests that although Governments should continue to have the right to initiate constitutional change, this needs to be tempered by a realisation that constitutional legislation is qualitatively different from other legislation”.

The Government then say, absolutely plainly:

“The Government does not accept this. Constitutional legislation, like all legislation, varies in its importance, complexity and impact”.

The response then goes on to expand on that. That point by the Government needs a certain amount of serious consideration. Paragraph 101 of our report is about referendums. It states:

“This Committee recently examined the use of referendums in the United Kingdom and concluded that whilst there were ‘significant drawbacks’ to their use ‘they are most appropriately used in relation to fundamental constitutional issues’”.

That is an important point, because obviously one sees at the moment the likelihood of the Government going more and more to referendums in order to get a decision about a different matter.

Let us think for a moment about what is happening in the eurozone. We have Merkel and Sarkozy, as the newspapers say, out to save the euro. They are saying quite definitely that that will require a new treaty that will “recast Europe”. Those are some of the big words used. As we all know, there are pivotal talks tomorrow. Let us assume that there is a new treaty. If we then decide that we can accept this treaty, is that constitutional legislation? It would certainly have the effect of constitutional legislation. The Government would obviously put the matter before Parliament.

If Parliament were to reject what the Government were putting before it, there is no chance then that the treaty would be changed. It would go ahead. The Government would probably have a referendum and, as with the referendums on voting, it would be on the question, “Do we accept the treaty or not?”. Again, if that is decided against where would we go? We would then withdraw from the treaty and many people would think that that was a great mistake. We now have to consider the possibility of joining in what is obviously an important subject like a new treaty and how we would deal with that in this country.

I will take this one step further before I stop talking. No doubt the internet will become more and more popular and government will sooner or later use the internet to get answers to referendums. They could ask for an answer on the internet, to be sent by post or whatever. Again, one sees a change in the constitutional legislation in that Members of Parliament voting in Westminster will become less and less important. Does that mean that there is no longer a legislative process in Westminster to which we would all feel bound?

This issue is complicated, but it is looking ahead and it is well worth thinking about that in the committee this afternoon and in what we do in the future. We need to think about whether constitutional legislation requires a legislative process in Westminster or whether we would have at times to see a move towards constitutional decisions that had not gone through the Westminster Parliament. That is serious question for the future.