Constitutional Change: Constitution Committee Report

Lord Tunnicliffe Excerpts

Wednesday 7th December 2011 Grand Committee

[Lord Tunnicliffe]

My Lords, I thank my noble friend Lady Jay of Paddington for chairing this committee and producing this report and the members of the committee who took part in the study. Normally, that is a formality, but this report is unusual because it is so profound and important. I have listened to the debate and I will not waste the Committee's time by detailed comment on individual contributions, but by my count, nine or 10 of the 12 noble Lords who have spoken have been broadly sympathetic to the report and not sympathetic to the Government’s point of view.

I place myself clearly in the majority. We are sympathetic to the report and note that there are some caveats—the noble Lords, Lord Wills and Lord Rennard, had ways that they would like to develop the report into a procedure—but the clear concern about constitutional change and how it is managed is something that we share. In saying that, we accept the implicit criticism of some of the things that we did during our Administration in the constitutional field.

This House has an important role in our constitution. In terms of the legislative process and scrutiny of the Government of the day, this House is one of the key operational checks and balances on the constitution, but the House of Lords has a further role,

“a proper role in safeguarding the constitution”.

That last point is a quotation from Professor David Feldman, Rouse Ball Professor of English Law at the University of Cambridge, from the evidence that he gave to the House of Lords Constitution Committee in preparing this excellent report.

Not only do I agree with that view, I suggest that in the content of the report and in putting it forward as a comprehensive package of proposals for an agreed process of constitutional change, this House’s Constitution Committee is precisely carrying out the role of constitutional long-stop in safeguarding the constitution of our country.

Professor Feldman argues for constitutional change not being introduced for partisan reasons. That is a noble aim, but I fear that in the context of modern politics and modern political discourse it is an impractical one. Constitutional change is not high on the list of people's priorities, perhaps especially at times of great economic difficulties. Unlike inflation, jobs, health, crime and education, it is not usually a matter of high public or party-political interest.

However, political parties from time to time seek to change the UK constitution. After a long period of very little constitutional change, when we came in as a Labour Government in 1997—and I thank all noble Lords who referred to this period favourably—we did so with a clear mandate for constitutional change, which we enacted with a programme of constitutional change that Vernon Bogdanor, former professor of government at the University of Oxford, described as a formidable series of measures. That programme included a directly elected Scottish Parliament, a directly elected National Assembly in Wales, a directly elected Assembly in Northern Ireland, directly elected mayors in London and elsewhere, legislation on human rights, freedom of information, the regulation of political parties, reform of the House of Lords and the formation of the Supreme Court—a formidable list indeed. After such a constitutional desert, the country wanted and needed constitutional change, and that is what we as a Labour Government delivered. It was a change led by us as a political party, but it was constitutional change for the whole country.

The current Government are in a very different position. As a coalition formed after a general election and with no specific coalition mandate at all from the electorate, the coalition has tried to proceed with constitutional change very much on a partisan basis. The Parliamentary Voting System and Constituencies Bill earlier this year was a wholly partisan piece of legislation. Labour vigorously opposed it in this House, and we were right to do so.

One part of the Bill on boundary changes was designed to damage the Labour Party, although it is interesting and significant how many Conservative MPs whose seats are threatened by the now published proposed boundary changes are worried and are complaining to their party that, in seeking to hurt Labour, the Act may be a major piece of Tory self-harm. The other part, providing for this year’s referendum on an alternative voting system for the Commons, was again an entirely partisan measure designed to help the other half of the coalition, the Liberal Democrats, for whom a changed voting system had long been a holy grail. A shift to AV would also have greatly benefit benefited them electorally.

Constitutional change brought forward for such partisan reasons may indeed, as that piece of legislation is showing, have unforeseen consequences. However, while the principal purpose of this report is not particularly to limit the partisan nature of some attempts at constitutional reform, it might well have exactly that effect. The principal purpose of the report is to provide an agreed method by which constitutional change is brought about based on the notion that constitutional legislation is indeed, as the report puts it, qualitatively different from other forms of legislation and that the process leading to its introduction should recognise that difference. We on this side of the Committee agree with that view. We are sorry to see that the Government do not, as is indicated by the response to the committee’s report from the Deputy Prime Minister.

That response is a poor piece of work. Essentially, it does no more than say that because no precise definition of constitutional change is offered in the committee’s report, a separate process to deal with constitutional change is inappropriate. The Deputy Prime Minister may not be able to distinguish constitutional measures from other pieces of legislation, but the law certainly can and does. Constitutional law and the study of constitutional law is a long-established and distinguished branch of the law and the legal profession.

AV Dicey, the great constitutional theorist and founding father of constitutional law, in his seminal work on the constitution, An Introduction to the Study of the Law of the Constitution, defined the term “constitutional law”, which he saw as including,

“all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state”.

In defining constitutional law, Dicey managed as long ago as 1885 to do something that, apparently, is beyond the Deputy Prime Minister now. A series of distinguished constitutional lawyers have also done so and the merest glance at the groaning shelves of the constitutional law section of a good legal bookshop show that a good few others have managed it too.

We on these Benches urge the Government to think again on this report and rethink their response. They must come up with something better, even just a little better than this wholly inadequate little shard from the Deputy Prime Minister. That the response from the Government is inadequate is particularly unfortunate because the report it is responding to is particularly good.

These Benches agree that a situation whereby the Government are effectively able to change the constitution at will should be avoided. We agree that the desire of a new Government to act quickly is no justification for bypassing proper constitutional process. We agree that the Government should not seek to pass significant constitutional legislation during the wash-up. We tried it with the Constitutional Reform and Governance Bill, and this House made it clear that we were wrong, and we accept that.

We agree that a number of weaknesses in our current constitution arise from the fact that the UK has no agreed process for significant constitutional change. We need a clear and consistent process for significant constitutional change. When a government Bill proposing significant constitutional change is introduced into either House of Parliament, the Minister responsible for the Bill should make a Written Ministerial Statement meeting the terms proposed by the Constitution Committee in its report before us today. Governments should depart from this comprehensive approach only in exceptional circumstances and where there are clearly justifiable reasons for doing so.

This is a good report from a highly regarded and well respected committee of your Lordships’ House. Rather than denigrating it, as the Government’s response seeks to do, the Government should instead accept it, adopt it and implement it. Constitutional change is important in Britain, and it is important that we get it right. So far this coalition Government have not got it right. We as a Government did not get all our constitutional change right, we acknowledge that, but as I believe is also acknowledged, we put in place a series of constitutional changes which are important, which will last and which were, in a large part, right.

Putting in place a new process for constitutional change, as this report proposes, is a valuable and helpful notion. I urge the Minister in replying to put aside the Government’s sad little formal response and take the opportunity of responding in kind to the excellent proposals made by the House of Lords Constitution Committee.