My Lords, in the time available I wish to focus on constitutional affairs from two perspectives—those of process and substance.
I had the honour to be the first chairman of the Constitution Committee of your Lordships’ House. One of our first reports was on the process of constitutional change. That was in 2001. A decade on, the committee returned to the subject. Its report was published last July. In 2001, we expressed concern at the lack of a culture within government of dealing with constitutional issues. There was no coherence in the process by which constitutional issues were considered. The committee in its report last year—and I was again a member—noted:
“The evidence we have received points to this lack of coherence remaining a serious problem”.
Not only was there no coherence to government policy in constitutional affairs but there was no coherence to the process by which the policy was generated within government. As the report recorded:
“It is of particular concern when this inconsistency appears to derive more from political considerations than any sense of constitutional principle”.
It went on to note:
“There is a risk that changes to the constitution may be rushed through without any pause for thought as to their desirability or otherwise”.
The Government’s response to the report failed to assuage the committee’s concerns but rather reinforced them. The response demonstrated a failure to appreciate the qualitatively distinct nature of constitutional change. There was no grasp of the fact that the constitution stands apart from other legislative change. The constitution is not the creature of the Government to be changed at will on the basis of political whim. The Government are the creature of the constitution rather than the other way round. We cannot afford to follow the Government in the way in which they deal with constitutional matters. Parliament has to adopt procedures that ensure that attempts to change the constitution are subject to scrutiny of a different order from that of ordinary legislation and, indeed, subject to a much higher order of justification. There needs to be a compelling case for change and not simply an arguable case. On such matters one cannot afford simply to give the Government the benefit of the doubt.
As Sir Jeffrey Jowell told the Constitution Committee:
“The time has come to simply take a little more care with constitutional reform”.
We need, in particular, to be able to do what the Government are not doing: address how a change to one part affects other parts of the constitution. The academic and former Liberal Democrat MP David Howarth told the Committee that,
“we have no structural thinking going on about the interaction between the composition of the Houses … the electoral systems, the courts and so on. We have no thinking about how all this fits together into a system of government”.
We need to look holistically at our constitution and to understand the extent to which change does not take
place in a vacuum. If you make major change to one part of our constitutional framework it has implications for the rest of that framework.
That brings me to the Government’s proposals for reform of this House. We are told that a Bill will be brought forward. I served on the Joint Committee examining the Government’s draft Bill and I have made the point before that we were limited in our examination. We addressed the Bill before us rather than looking at its wider implications. We looked at the relationship to the Commons and got rather bogged down in that exercise. We did not tackle the wider picture, nor for that matter did we address the principles underpinning change. We need to address the way in which change to one House affects the rest of our constitutional arrangements. The Government’s stated proposals are flawed in that they derive from no such consideration. In short, the process is flawed.
I turn to the arguments that are advanced for an elected House. To listen to those who advance the case for election, one would think that the case is self-evident: that there is an unanswerable democratic argument for change; that in having an elected Chamber we should be following virtually every other second Chamber in the world; and that there is overwhelming popular support for change. Let me deal with each of those claims. One can indeed make a case for electing the House on democratic grounds. However, one can make a case on democratic grounds for not electing the second Chamber. Democracy—demos kratia—is about how people choose to govern themselves. In a representative democracy, accountability is fundamental. In our system, Governments are chosen through elections to the House of Commons and collectively are answerable to the people through the House of Commons. There is core accountability. There is one entity—the party or parties in government—responsible for public policy and the electors know who to call to account at the next general election.
Knowing that, the Government tend to be responsive to the mood of electors in between elections. As long as the final say rests with the House of Commons, the Government are able to govern and remain accountable to the electors. Electing the second Chamber would not necessarily produce co-equal Chambers. What it is likely to generate is a House with more powers and/or a willingness to use extant powers to a far greater extent than at present, and it would be in a position to frustrate on occasion the will of the first Chamber and, in effect, the capacity of government to govern. Accountability would be fragmented. There is an argument for that. My point is that there is, equally, an intellectually coherent case—I believe a compelling case—for maintaining the core accountability at the heart of our political system. One cannot proceed on the basis that what is being proposed by government is self-evidently the sole democratic option; it is not.
Some advance the argument that those who make or help make law must be elected. One can make that case, but it is not as clear cut as those who advance it appear to believe. They are in effect prioritising the accountability of individual Members over the collective accountability of government. I prefer to maintain the accountability of government to the people.
What about the claim that if we move to an elected second Chamber we will bring ourselves into line with other second Chambers around the globe? If we sought to follow the global norm, we would vote for abolition; most legislatures are unicameral. Bicameral legislatures adhere to no clear norm. Of the 76 second Chambers that exist, only 21 are wholly directly elected. Seventeen are indirectly elected, 15 are wholly appointed and the rest are selected by a variety of means.
The powers of second Chambers are also difficult to classify, as Meg Russell records in her article in the January issue of the Political Quarterly. She records the number of elected second Chambers with an absolute veto power over legislation and states that it is inaccurate to claim that in no single case does an elected second Chamber challenge the primacy of the first Chamber. In some systems, such as the presidential system of the United States, the concept of primacy is irrelevant. In parliamentary systems where the first Chamber can override the second, it is, as Meg Russell says,
“relatively common ... for this to require some kind of special majority”.