Constitutional Reform and Governance Bill

My Lords, I declare an interest in that Clauses 59 and 60 of the Bill affect me personally. That is the first and only reference that I shall make to those two clauses in my intervention this evening and in any further stages of the Bill, if there are to be any. This is not an easy speech for me to make, coming, as I do, from these Benches. I have not always been able to agree with my Front Bench and I am afraid that on this occasion I am not able to agree on quite a number of important issues. I came to the House of Lords 32 years ago. In fact, the noble Lord, Lord Henley, and I, if I remember correctly, took our seats on the same afternoon. In all that time I have never wavered in my belief that, as a Member of a revising Chamber, on some issues, particularly matters of constitutional reform, you have to say what you believe regardless of party affiliation and other considerations. That is what I propose to do. The Bill contains some very sensible provisions, which, given its elephantine gestation period, is the least that one could expect of it, and I am sure that following proper scrutiny and debate I could support their translation into law. That said, I share entirely the view expressed in the wonderful, short, succinctly worded paragraph 47 that concludes the Constitution Committee’s report. It says: ""This is no way to undertake the task of constitutional reform"." The members appear to have concluded unanimously that this House is being denied the opportunity to scrutinise properly the Bill’s provisions. I have read carefully the Hansard report of the Committee stage in another place and conclude that there, too, far too little time was given for proper consideration of many of its provisions; indeed, some were not considered at all. The Government can be justly proud of many of the constitutional reforms that they have put through over the past 13 years and I have been very happy to support in this Chamber their passage through Parliament. What a pity, then, that this quiet revolution, as my right honourable friend the Secretary of State for Justice has called it, should now be sullied, not by the nature of the provisions of the Bill but by the wholly inappropriate process by which Parliament, in particular this House, is asked to legislate them. As the report of the noble Lord, Lord Goodlad, notes—it is worth repeating this—the Bill contained 56 clauses and nine schedules when it was first introduced. By the time it arrived here, it contained 95 clauses and 15 schedules, many of the new provisions being added very late in the legislative process. My right honourable friend the Leader of the House in another place informed the House: ""If the Bill cannot find its way through the Lords, we will make sure at the wash-up that the provisions that the public want get through".—[Official Report, Commons, 4/3/10; col. 1019.]" We must assume that, in accordance with convention, what do get through will be the provisions that are not contested—that is the tradition—but one is still entitled to ask: what is it that we are told the public want? We shall learn that, I suppose, when the usual channels emerge from their closed-door negotiations and tell us what will and will not become law. It is an odd procedure, but one which is found necessary and has in the past proved generally useful. However, I echo the spirit of the question put by the noble Baroness, Lady Boothroyd, which was so eloquently followed up by the noble Lord, Lord Pannick: this is not, in my opinion, a procedure to be applied to constitutional reform. I am not these days a betting man—I gave up serious betting at about the age of 11—but I would be ready to wager a fiver today that, to take but one example, Part 2 of the Bill, which deals with the ratification of treaties, is not high on the list of provisions that the public want to see got through before the general election. I take this as one example of the several that could be chosen of what we are likely to lose and have no chance of fully scrutinising anyway. This is highly regrettable because the provisions on treaty ratification in the Bill are an overdue step—albeit far too timid—towards better parliamentary control. European Union treaties have their own mechanism for parliamentary scrutiny but, under the Ponsonby rule introduced in 1924 and as currently practised, all other treaties subject to ratification are laid before Parliament, when signed, for a period of 21 sitting days before ratification and publication in the treaty series. Since 1997, each treaty is accompanied by a government Explanatory Memorandum providing information about the treaty’s contents, the Government’s view of its benefits and burdens and the rationale for ratification. Few treaties are debated under the Ponsonby rule, although the Government have agreed to make time for debate in certain circumstances. Even if there is a debate and Parliament expresses its disapproval, this does not necessarily prevent the Government from ratifying the treaty. None the less, the Ponsonby rule has resulted in most important treaties having some degree of parliamentary scrutiny. Select Committees in another place have, over the past decade, become more involved in treaty scrutiny—thank heavens for that—but the extent of the scrutiny depends on the committee’s other priorities and the demands on its time. Let us not forget that globalisation is one of the causes of the growth in both the volume and scope of treaty making. Current practices rely largely on the sanction of political criticism, which all too often falls on deaf ears and which has no legal effect anyway on the Government’s decision to ratify, so for some time there have been calls for parliamentary scrutiny to be enhanced. Specific proposals have been put forward in five Private Members’ Bills in this House, starting in 1996 with the first of three Bills from the noble Lord, Lord Lester of Herne Hill. I see him in his place and I seize this occasion to applaud his tireless efforts in this matter. In his first Bill, he proposed, among other measures, the creation of a joint parliamentary treaties committee to keep Parliament informed about the implications of treaties and to consult the public about them. The report of the Royal Commission on House of Lords Reform, under the very able chairmanship of the noble Lord, Lord Wakeham, saw the potential merits of having a Select Committee of this House to draw our attention to any significant implications of a treaty before the end of the 21-day Ponsonby period. Similar proposals have been aired by your Lordships since then, but we have got nowhere, usually running up against the brick wall known as the Liaison Committee. Now we have the matter before us again in Part 2 of this Bill, which, in effect, puts the Ponsonby rule on a statutory footing. I am not quite sure why that is necessary, as Governments have been complying with it for the past 86 years. Also, I sometimes have doubts about parliamentary procedures being enshrined in statute. Anyway, Clause 24, based on the Ponsonby rule, provides that a treaty is, as in the past, laid before Parliament for 21 sitting days, during which both Houses have the opportunity to resolve that it should not be ratified. If the 21 sitting days expire with no such resolution being passed by either House, the Government can proceed to ratify the treaty. If the other place resolves that a treaty should not be ratified, the Government cannot at that stage proceed to do so; they must instead lay a statement explaining why they still believe that the treaty should be ratified and then wait a further 21 days. If by the end of that period the other place has not withdrawn its opposition to ratification, another 21-day period ensues, with the Government re-laying their statement—and so on, I assume, until the cows come home. However, if this House, with all the expertise at its command, resolves during the initial 21-day period that a treaty should not be ratified, the Government simply lay a statement of disagreement and tell the Lords to get lost. Well thanks a lot. Yet the European Union (Amendment) Act 2008—about which I know something—which ratified the Lisbon treaty, provides that before a Minister may consent in the European Council to the use of a passerelle under the treaty, both Houses must pass a Motion to approve the Government’s intention. That concession was made by the Government in response to our insistence. It was an enlightened decision, but that spirit certainly does not imbue Clause 24 of the Bill. I do not wish to sound frivolous, but if the Government are sincerely looking forward to the day when this venerable House is wound up and replaced with a 300-member senate, they should realise that that body will not accept this sort of treatment. Therefore, why do the Government not get used to the idea now and do for Clause 24 what they did for the European Union (Amendment) Act?