Constitutional Change: Constitution Committee Report

Lord Wills Excerpts

Wednesday 7th December 2011 Grand Committee

[Lord Wills]

My Lords, I agree with almost everything that the noble Lord, Lord Crickhowell, has said. I follow other noble Lords in welcoming this report. Once again, this committee has performed an invaluable service by producing a report that is thorough, wise and timely, too, in view of the energetic way in which this Government have been pursuing constitutional reform, though not always fruitfully. I share the hope expressed by other noble Lords today that the Government will rethink their response. I speak as someone who was a Minister in the last Government responsible for constitutional reform. The Government are in grave danger of repeating the mistakes that we made in government.

In light of the general welcome given to this report and to all the committee’s reports, I hope that it will not be considered sacrilegious if I spend a few minutes taking issue with it. I want to take issue with only a limited section of the report, but it is precisely because it is so limited that I take issue. Only six paragraphs out of 105 in the report are devoted to public engagement. The committee rightly stresses the importance of process in constitutional change, but one of the main reasons, if not the main reason, that it is so important, is that proper process is most likely to secure the public consent to change that in turn is most likely to ensure that it endures. That is crucial with constitutional change. Surely in the light of this, the issue of public engagement deserves a little more scrutiny than the 6 per cent of this report that is devoted to it. The committee spends rather longer on the question of consultation, although its focus seems to be primarily on the established institutions of power, primarily in Westminster rather than the general public. It offers sensible and balanced views, in my view, on Green Papers and White Papers and prelegislative scrutiny, but is more or less silent on how consultation with the public should be carried out more widely, with whom exactly and for how long, and how that should influence public policy, and where such consultation fits in our system of representative democracy. Yet these are all crucial questions, in my view. It is not as if there are no other models available for the committee to scrutinise, but it mentions only one—from Canada—and that is almost in passing.

There is an uncharacteristic lack of rigour in the perfunctory conclusion that the committee reaches that,

“no one model … should be adopted for all proposed changes. Nor is public engagement at this stage of the process always a necessary requirement. However, if not undertaken, the government should be able to justify their decision not to conduct a public engagement exercise”.

It would have been helpful to future Governments embarking on constitutional change if the committee could have given a few more reasons for this conclusion. It would have been even more helpful if they had attempted to explore different models and when it might be appropriate to use them.

Of course, it is difficult to reach definitive conclusions about the best mechanisms, and I agree with what my noble friend Lady Jay rightly said on this. As she also pointed out, there is a risk of public engagement degenerating into little more than a box-ticking exercise. But those difficulties and risks should not be used as an excuse for not exploring further this important issue. For more than a decade, every Minister bringing forward constitutional legislation—and I was one among many—has remarked on the state of our democracy. My noble friend Lady Taylor made some very important points about this today. There has been a well documented decline of trust in politicians, increasing disengagement from the formal democratic process, with disadvantaged groups and younger people increasingly unlikely to vote at elections. We have seen the weakening of old, collectivist structures and historic social identities and the rise of a professional political class. It has all served to undermine engagement with the party politics on which our system of representative democracy depends. How to re-engage the public in democratic politics is a huge challenge facing everyone, both Houses of Parliament. Nowhere is that more important than in the process of constitutional change that addresses the wiring of our democracy, which is why, as other noble Lords have pointed out, it is not like other legislation.

As my noble friend Lady Jay pointed out, it is not easy to see how best to do this without compromising our system of representative democracy, which we should continue to cherish. The difficulties can be seen, for example, in the entanglements that the other place is getting itself into in dealing with petitions. Representative democracy is precious, and we should never cease reminding ourselves if that, in the current climate, because it allows for the fairest distribution of power among all citizens, offers space for scrutiny and deliberation on complex issues and does so continually as such issues arise, which makes for better policy. It fosters the articulation of the needs and aspirations of the inarticulate and protects the interests of minorities, all of which are hallmarks of a decent and civilised society. Representative democracy should not be replaced or threatened, but that does not mean that it cannot be adapted to new circumstances.

Referendums can have their place in this. The arguments for and against their use have been well set out in an excellent previous report by this committee, but referendums are not the only way of increasing democratic engagement. As I have said, I would have hoped that the committee would have spent a bit more time exploring this issue in its report. It had a starting point in a policy paper called A National Framework for Greater Citizen Engagement, which was published over two years ago by the then Government and which explored the use of mechanisms such as citizens summits as well as referendums. That paper set out proposals for when national policy formulation could benefit from greater public participation and, in the view of that paper, those circumstances included significant constitutional change.

I have set out previously my view that any new mechanisms to re-engage people with democratic processes and improve policy formulation will succeed only if they fulfil five conditions. Briefly, they are: first, they must register with the public, which means that they must be regular and pervasive; secondly, they must be credible and people must believe that they matter— I will cease there.

--- Later in debate ---

[Lord Wills]

My Lords, before more important things interrupted, I was just reaching my conclusion. I hope that the Committee will look at ways to engage the public on this very important issue. I set out, as a starting point, five crucial criteria which, in my view, any new mechanism for engaging with the public must fulfil.

First, the mechanisms must register with the public. In other words, they must be regular and pervasive. Secondly, the mechanisms must be credible. People have got to believe that they matter and are not a box-ticking exercise. They should be open and transparent; participants must be aware in advance of the status of the consultation and what it can achieve; there must be a shared understanding of when and how these mechanisms will be used—the committee is absolutely right to have drawn attention to that in this report; and government must not engage consultation just for the sake of it, with no discernible outcome.

Thirdly, engagement mechanisms must be systemic; otherwise people could all too easily regard them as a version of a tactical device. Deliberative assemblies such as citizens’ senates should represent, in my view, a permanent change to the process of policy development. Fourthly, they should be as representative and accessible as possible, involving a broad spread of the population, not just the usual suspects. Finally, such new mechanisms must also, and always, be consistent with the primacy of representative democracy. They should never replace parliamentary consideration of issues. They should always feed into them.

These propositions are just one starting point for what I hope will be a new and characteristically magisterial report by this committee on how best to engage the public in the process of constitutional change. The issue deserves nothing less than such a report to follow the one in front of us today—a report which, despite my criticisms, has made an important contribution to the debate over the future of our constitution, for which we all owe the committee our thanks.

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[Baroness Falkner of Margravine]

That is a well rehearsed point, I know, from the noble Lord, Lord Norton of Louth. My rebuttal to him at the time that we had this discussion in Committee was that all public policy can be construed as political; we nevertheless go through a process of giving it substance through law and deliberation prior to it becoming law. That was why it was quite right for it to go through Parliament. There is a philosophical imperative in respect of this public policy measure not just to have it for a single Parliament but to have it as good practice enshrined as a constitutional convention. That was the basis on which we introduced it.

[Lord Wills]

I could not resist the noble Baroness’s invitation to intervene on her. I want to make two points. First, on the point of the parliamentary Bill and the boundaries, it is of course quite right that both partners in the coalition had expressed their intention to reduce the size of the House of Commons. However, they had very different numbers, which have crucial implications for the outcome. Therefore, it is completely proper, as the committee said, that this should have been open to all sorts of prelegislative scrutiny. Secondly, the point the noble Baroness made about the Fixed-term Parliaments Bill proves the point that the committee was arguing: that Bill was precisely in the interests of the Executive, and it is the need to fetter the Executive that a lot of the measures put forward by this report are aimed at.

[Baroness Falkner of Margravine]

If the noble Lord were to read what the report says on the Fixed-term Parliaments Bill, he will see that there were contested opinions as to whether it amounted to better governance or merely the Executive overriding to their advantage.

The important examples of the need for proper constitutional process do not necessarily lie in this Parliament but in previous Parliaments; for example, the change to the role of the Lord Chancellor in 2008—noble Lords have referred to it already—or, as the committee mentions, the handling of the Constitutional Reform and Governance Bill in the closing stages of the previous Parliament, which ran a full five-year term, and where the previous Government, with eight years of power till 2005, should have introduced their Bills in the early part of the previous Parliament rather than leaving it to the wash-up. The Prevention of Terrorism Act 2005, which had significant implications for habeas corpus, was not subject to prelegislative scrutiny and, in my view, it should have been. There are some Bills that require flexibility and, as long as justifications are provided for deviation from good practice, we should take each Bill as it comes.

Let me turn to public engagement, which is emphasised in the report. It is, of course, right that in constitutional matters, more than in any other area, there should be at least a minimum awareness in the country of what is proposed and, preferably, meaningful consultation on the merits of the proposals. The nub of the problem lies in what threshold we apply. Noble Lords will be aware of the new e-petition system whereby 100,000 votes on a Downing Street petition can trigger a discussion in Parliament on public policy. As we have seen from the anti-European Union debate recently, a mere debate publicises an issue but does not lead to changes and therefore can disappoint. Consultation that leads people to think that they have a say without it being reflected in substance just makes the electorate more cynical. Another factor is the appropriateness of public engagement. The e-petition system calls forth rather esoteric and special interest issues, and I will give the Committee a flavour of them. Recent petitions include: Convicted London rioters should loose all benefits; Fight for BAE Systems Jobs; and Protect Police Pensions. Some of these may be areas where a debate might be sufficient to deal with them, but the people who have signed the petitions would wish the Government to take action. So, yes, there should be public consultation, but it should be meaningful.

Let me go to the most controversial recommendation. I beg the indulgence of the Committee in going on for a minute or two extra since I have lost some time. The report proposes that legislation should be accompanied by a ministerial statement and provides a comprehensive list of what should be covered in that statement. It further asks the Minister to justify why the Government might agree or disagree with the responses given. The Minister would also be required to set out the extent to which rigour was applied in Cabinet committee. It stops short of asking for a justification of Cabinet decisions, but that is not far off. This perhaps goes too far, and the Government’s response—that they will consider these matters further—is the right one. In today's age of spin, we cannot expect that the internal deliberations of policy within government would not be subject to speculation about who said what, when and for what motive. That would not increase confidence in the Government but would, in fact, decrease it. Having read the multitude of diaries that appeared within months of the previous Government's departure, I come from the perspective that those of us outside are better off not knowing how carelessly or, indeed, controversially serious decisions are made. I suspect that there is at least one member of the committee who would rather that his advice to Cabinet had not been the matter of such intense speculation in the aftermath of the Iraq war.

There are several good things in the report, which have been mentioned by noble Lords, on First Reading and Second Reading timescales and so on. I wholeheartedly agree with them. On the whole, the report is excellent, and while I share some disappointment about the Government’s response, I look forward to the summing up by the Minister. In the words of the noble Lord, Lord Desai, I look forward to hearing him face the music.