Constitutional Reform and Governance Bill

My Lords, I endorse immediately the closing sentence of the noble Lord, Lord Howarth. The question of wash-up or not has come up a number of times. It is inconceivable that legislation in this state should be dealt with by wash-up. It is ironic to reflect that the Lord Chancellor, opening the debate on the Bill in the other place, said: ""In 1997, the Government embarked upon an unprecedented programme of constitutional reform".—[Official Report, Commons, 20/10/09; col. 799.]" If ever a sentence was misleading, that was it. It suggested a calm consideration, now 12 years ago, with the agenda having been quietly laid out. One has only to put the sentence alongside a remark, already quoted, of the Constitution Committee of this House: ""This is no way to undertake the task of constitutional reform"." On that much, there must surely be total agreement. If ever there was something that did not need to be washed and that would be damaged severely if it went through the wash-up, it would be a Bill of this kind. How should one tackle these proposals? We have heard a number of suggestions put forward by colleagues already. Nobody here so far, I think, has said, "Well, isn’t it time we had a really complete examination of everything?". Some think tanks have already said that it is clear that we need a written constitution. It is presented as somewhere where we could resolve all the difficulties, knit them all together and at last solve everything with a clean, clear written constitution. I suggest that anyone advocating that course should have a quick word with the noble Lord, Lord Kerr of Kinlochard, who spent some of the best years of his life confronted by the attempt to establish a constitution of the European Union. I had a similar, but much more humble, experience together with the noble Baroness, Lady Williams. We were both on the advisory council of the Supreme Rada of Ukraine when it had disintegrated and been reborn. We were seeking to advise it on how to create its constitution. We had a free hand, because there was nothing to obstruct us. It had not had such a thing, or, if it had, we did not know anything about it. Everyone who has attempted to create a constitution in that way is faltering and barking up the wrong tree. The question is better answered by saying that these matters must be considered step by step, although not necessarily one by one. If we look at the history of the past 20 years, we see that some of the important steps taken have created a new arrangement that has turned out to be right. They were not taken all at the same time. For example, the invention of life Peers opened a new door for the structure of this House. The removal of a large number of hereditary Peers, with the arrival of the present Government, was another. Along the way we have been able to address some things gradually in that form. It is worth noticing that some of the most sensible changes—not just in this constitutional area, but elsewhere as well—have been made and can be made by convention. Sometimes we are driven to seek specific provisions to define situations precisely and closely. The Joint Committee under the chairmanship of the noble Lord, Lord Cunningham, addressed the conventions regulating relations between the two Houses in great detail and set them out in clear form. It also addressed the question of whether they should be codified and put into statutory form. That was rejected. Conventions have a value and should not be scorned. In two areas that have been touched on, conventions have a real part to play. One is in defining the role and management of the office of Attorney-General; the other is in handling the office of Lord Chancellor. Both those institutions are best handled not by seeking to codify how they behave, either separately or in relation to each other. I will come back to that in a second. We seem to be permanently dogged by the question of nomination or election—one or the other, or both. If one looks at the Bill as it now stands, there is a curious contrast. In the part dealing with this House, there are five separate provisions about the way in which people may leave the House but only one about their arrival in the House, which is an odd structure. What is missing is the proposal made by the noble Lord, Lord Steel. Clearly, if the House is to have any appointed Members—and that would seem to be, if not universally accepted, very widely accepted—we need an institution of that kind. The question still remains. If we accept the Steel skeleton as it is embodied in the Bill and if we include the amendment that he proposes, that is a sensible way to go. However, we are still left to look at this recurrent, emotional enthusiasm that lies behind the concept of an elected second Chamber. The experience of the last few years shows the number of pitfalls in the management of our electoral system. The collapse of confidence in the elected House—not entirely excluding us—shows that election is not regarded by many people as the best and most secure way of creating Members of this House. It is interesting to look back at the comments made by bodies that looked at this question carefully. A number of colleagues have spoken sympathetically about the Wakeham commission report, which certainly deserves commendation and re-examination. On the election question, it made this observation. Elections, it said, ""seldom deliver results which are gender-balanced, or provide appropriate representation for ethnic, religious or other minorities"." Moreover, they are, ""unlikely to produce members who are able to speak directly for the voluntary sector, the professions, cultural and sporting interests and a whole range of other aspects of society"." The truth of that is scarcely arguable; it comes from a detached and objective scrutiny body. Alongside that, however, the Public Administration Committee of the other place, in its 11th report, reached two conclusions. First, it identified the need, ""to ensure that the dominance of Parliament by the Executive, including the political Party machines, is reduced and not increased"." That is objective 1—reduction, not increase, of the dominance of Parliament by the party machine. Secondly, the second Chamber must be, ""neither rival nor replica, but genuinely complementary to the Commons"," and, therefore, as different as possible. Those two propositions come not from this House but from the other place, describing how this House should be composed. One can start from that premise and seek one way or another. It may take some time to find agreement on this crucial issue. We have been able in a number of contexts to find agreement, but this is a fundamental that needs to be addressed again. Certainly, we need to have the additional provision put forward by the noble Lord, Lord Steel. What about some of the other provisions, which have not really been addressed so far, on the offices of Lord Chancellor and Attorney-General? Both of those have a most important part to play on the line between law and politics and on the maintenance of mutual confidence between the two. Their existence is not incompatible with the separation of powers and their relationship is shaped by convention. The Attorney-General’s office has been considered in the procedures that have taken place so far without any conclusions having yet been reached. I still have some modest memory of my two years as Solicitor-General, serving with the late Peter Rawlinson as Attorney-General, who had a clear insight into the nature of the office. It is clear that the office of Attorney-General requires to earn the respect of professional and legal institutions and the respect and understanding of the parliamentary institutions. Therefore, that office should go to someone holding merits in both those categories and, ideally, serving in the other place. He or she should certainly be of Cabinet rank, although certainly not—and nobody argues with this—a member of the Cabinet. There has been some collapse in the convention about whether he or she should attend Cabinet. The convention was that he did not go to the Cabinet as a matter of course but went on invitation to discuss particular issues. I occasionally had to argue with some difficulty with the Lord Chancellor, who often had a view of his own. Nevertheless, the Attorney-General was the man of authority invited to present his conclusions on those issues. That is the position that should be maintained. In the past year, we have had the pattern of the Attorney-General sitting in regularly in the Cabinet, which has not been a satisfactory state of affairs. It is the kind of thing that can be resolved by looking at, establishing and maintaining a convention. If we should try to spell that out in statute, taking account of all the nuances, who knows where parliamentary counsel might take us? The other issue is with the Lord Chancellorship. The disappearance of that office in the form that we knew it has been one of the most serious mistakes made in the progress of rather reckless constitutional amendment. The noble Lord pointed out that the Prime Minister no longer has a role to play in the appointment of judges, which relates to one of the provisions in the Bill. One can understand the welcome for that. One can also understand—and I would certainly endorse—the changes made in the procedures for the appointment of judges at the same time as the office of the Lord Chancellor has disappeared. They have probably become too complicated, but it was right to have the interposition of proper examination of candidates for those appointments. If there is anyone who should have the responsibility for steering them to their destination from time to time, it should be someone with the qualifications of the Lord Chancellor as we all used to know him—a distinguished legal figure but, equally, a distinguished, reputable and respected political figure. If one looks at the names of those who have held the office in recent times, one sees that they have all carried respect, starting with Lord Hailsham, Lord Elwyn-Jones and Lord Havers—one could go through them all. They were people who commanded not just the respect of their profession, but much wider respect as well. For that office to have been altered by the removal of the obligation to sit upon the Chair in this House, I can well understand. That worked quite well while it was there, but it was not necessary. For the Lord Chancellor to be in a position to preside over the Supreme Court also was open to criticism, even if he did not consider cases that involved the Government in any way at all. It was an institution that worked in that way and played a crucial part in managing potential conflicts between the Executive and the judiciary. The relationship between the Lord Chancellor and the Lord Chief Justice was well understood and regulated by convention. As soon as that relationship was removed, the poor Lord Chief Justice had immediately to expand his office and the situation changed fundamentally. I would argue that those sorts of institutions could be well governed by reference to convention, along the lines that I have suggested, and that we need to come back, not in a desperate search to cram it all into this dish just waiting to go into the dishwashing machine, but thinking carefully about the way forward. We have not made significant changes, in many respects. Most of the changes in the so-called Steel Bill and many of the changes in the Bill before us need to be considered in an orderly and well considered fashion. I shall close by referring, although not out of any sense of frivolity, to one curious feature. The legal committee of the Council of Europe addressed itself at some length some years ago to the legitimacy of our constitution—both of the Lord Chancellorship and of the marriage between the Supreme Court and the legislature. It concluded that they were not compatible with the separation of the three principles on the Montesquieu line. It is rather interesting to see the way in which the committee expressed its conclusion. It said that the unusual aspect of the Lord Chancellor’s position, ""is due to the specific conditions of the United Kingdom constitutional system, which has evolved over centuries without the beneficial modernisation introduced by the French Revolution, the effects of which were disseminated in the rest of Europe by Enlightenment thinking and the conquests of Napoleon"." One can hardly contemplate a less respectable source of enthusiasm for changing the office of the Lord Chancellor than a reference to Enlightenment thinking and the conquests of Napoleon. Any attempt to remove the office that was motivated by that would be profoundly misguided. We need a clear definition of the office of Attorney-General. In my judgment, he should be, as he always has been, in the other place. His presence and his familiarity to his colleagues in the other place make him much more likely to be respected, because he will be judged among colleagues in that way. Likewise, the Lord Chancellor, in my judgment, should once again be in this place. I do not visualise that involving any conflict whatsoever, either with the Supreme Court or with the Lord Speaker of this House. A senior legal figure in each place, capable of handling that important frontier between law and politics, seems to me to be something that we ought to cherish. I am quite clear that the Bill as it stands, although it may contain some very worthy considerations, does not deserve to go through the traditional wash-up process. It should be handled respectfully, allowing us to concentrate on the agenda that still remains, which is to restore the confidence of the people in this House, in politics and in Parliament. Amendment to the Motion Moved by