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The Lord Bishop of Portsmouth: My Lords, I am grateful to the noble Lord for giving way. I looked forward in my remarks to the possibility of a more comprehensive spiritual Bench. That is different from not having one at all. As I say, I am grateful to the noble Lord for giving way.

Lord Goodhart: My Lords, when we move to a greater separation of powers I believe that we shall see the removal of the judicial functions of your Lordships' House and the creation of a separate supreme court. I know that the noble and learned Lord the Lord Chancellor does not like the idea but I do not believe that he can resist it any more than Canute could resist the waves. That is perhaps being unfair to Canute who, of course, knew that he could not turn back the tide. I believe that the noble and learned Lord will be no more successful.

At the heart of our constitution there is a larger and much more difficult problem—I agree with the remarks on this matter of my noble friend Lord Holme of Cheltenham—and that is the domination of the legislature by the executive, particularly when, as at present, the Government have a large majority. Is this an inevitable part of the constitutional system? Should we change it? Can we change it? There are some things that we could do.

Electoral reform would ensure that governments are more broadly based, as they are in Scotland and in Wales, which undoubtedly shifts power from the executive to the legislature. We could strengthen departmental Select Committees in the House of Commons, turning them into something like the congressional or senatorial committees in the United States. That, again, would strengthen the powers of the legislature against the executive and would provide an alternative career path for MPs to the single career path, which most now seek, of ministerial office.

I turn to the role of your Lordships' House. A reformed House of Lords may play a greater role in holding the executive to account. I am not suggesting any change in the present conventions which govern the relationships between the two Houses or any attempt to challenge the supremacy of the House of Commons. But your Lordships' House, even partly reformed, has played a valuable part in modifying legislation, for example, on the Anti-terrorism Bill. Bill after Bill reaches your Lordships' House in need of improvement, and gets it. Sometimes a Bill needs improvement because the Government are deliberately trying to extend powers beyond their proper limits—as I believe was the case with the Anti-terrorism Bill—sometimes because a Bill is drafted too quickly and without adequate preparation (a current example of that is the Licensing Bill), and sometimes for both reasons. The Nationality, Immigration and Asylum Bill was an example of that.

Finally, a number of speakers referred to a written constitution. That, I believe, is some way off. But I personally see no particular merit in an unwritten

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constitution. Last week I heard Mr Oliver Letwin in an interesting discussion float the possibility of a written constitution. My noble friend Lord Smith of Clifton referred to the IPPR draft of a written constitution. I am glad he did so as I contributed part of that. We are in fact still some way off a written constitution, but the building blocks are being made—the Scotland Act, the Government of Wales Act, the Human Rights Act. I believe that a time will come to put them together into a single constitutional document.

5.16 p.m.

Lord Strathclyde: My Lords, I join all noble Lords who have spoken in thanking my noble friend Lord Norton of Louth for initiating this important debate.

I do not wish to sound discourteous but I do not plan to follow one or two noble Lords who have spoken in addressing the future of this House as I know that we can anticipate at least two major debates on that subject early in the New Year. However, I much enjoyed the comments of my noble friends Lord Renton and Lord Fowler. I very much believe that we are far better off with what we have than with another botched reform. I agree with my noble friends that we must all unite across the parties to stop Members of another place from forcing through an unworkable reform that will not give this House what it needs most of all; that is, strength, independence and authority.

My noble friend Lord Norton gives distinguished service to the House through his role on the Constitution Committee. We are lucky indeed to have a renowned expert on that subject as the committee's chairman. Indeed, the establishment of the Constitution Committee in this House, and the extension of the role of the Economic Affairs Committee to cover the Finance Bill, seem to me to represent constitutional changes squarely in the best of British tradition. These changes were introduced with agreement after debate. They strengthen Parliament, improve scrutiny and control of the executive—an issue in constitutional politics stretching back to Magna Carta—and they are gradual, incremental, in the spirit of what went before, or organic, as my noble friend Lord Norton of Louth might put it. The historic strength of our constitution is that the ground rules are unwritten. They are able to evolve and to adapt in the light of experience and circumstance.

We learnt in the 17th century, from the brutal experience of revolution and civil war in every part of the kingdom and army dictatorship in England, lessons that others learnt from far more recent scars. The imposition of frameworks and examples that are right for them may not suit our own very different historical experience. Neither ideological theorising nor whole conventions of human rights lawyers outweigh tested experience or the flexibility in-built in our British constitution.

Too much that this Government have sought to do since 1997 has swept aside that experience. We have seen the ground rules of constitutional development

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broken up. All those changes have been abrupt, prescriptive and ill thought through. The Government have arbitrarily cut across past practice and slavishly followed the passing fashions of the hour, with even the Deputy Prime Minister's bizarre fad for regional assemblies in place of counties dating back to the Saxon era. No wonder my noble friend Lord Norton says that we possibly have the makings of a constitutional crisis.

At times in the past few years, it has seemed as if anything was up for grabs except, of course, the office of the noble and learned Lord the Lord Chancellor himself. Given the distinction of the current holder of that office, whom we are honoured to have with us this afternoon, that may be understandable. None the less, it is striking.

Let us consider the extent of the change in the past five years, let alone the past 30. The union settlements have been set aside, and the common law of England has been undermined by a code of human rights that derives very little from national law. The usages of the House of Commons have been modernised, deeply entrenching the power of the executive, as the noble Lord, Lord Sheldon, recognised. That was expressed even more strongly by the words of the noble Lord, Lord Weatherill, to which I shall return in a moment.

Our own House has been purged more ruthlessly by a political hand than at any time since the 1650s. Powers that resided at Westminster have been transferred to Brussels with an almost missionary zeal. Noble Lords do not have to believe everything that my noble friend Lord Pearson says to believe that. Ministers have spun spiders' webs of regulation across the face of public life, so that no school, hospital or police officer may move without a rule book clumping behind them. We have seen a long and persistent march by the Home Office against some of our most precious personal liberties. On that last point, what price one's human rights, if a jury may be conditioned into thinking that one is a criminal before one's case is even heard?

That is only part of the Government's programme, but it is enough to indicate, as noble Lords have done in this debate, the scale of constitutional changes that have taken place in the past few years. At no stage have the Government stopped to ask the question raised by my noble friend Lord Norton, or to give an answer to the question, "What is the constitution for?". Has there been any coherence in the Government's actions, and what are their plans for the future? Indeed, even the word "plan" may be a misnomer, as so much seems to have been done by accident rather than design.

One needs only to consider the practice of devolution, which has become an expensive embarrassment to the people of Scotland. In a few minutes, in the forthcoming Statement, we shall witness the Government standing on their head and announcing a change to the number of MSPs and confirmation of a deal struck with the Liberal Democrats. The real test of devolution, however, will be during the next few years, as we see the development of different political complexions in the Scottish

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Executive and at Westminster. All the stresses will not be seen for some years, but the problems that they bring will cast a long shadow.

The noble Lord, Lord Morgan, raised several important questions about the working of devolution. The decision-making powers of the new Parliaments and Assemblies are based in their own bodies, but the money to pay for them comes from the centre. That will inevitably lead to wastage of expenditure and the start of a begging bowl culture. None of those issues has been resolved.

Another point about devolution arose during the speech of the noble Lord, Lord Goodhart. Am I right in believing that the new Parliaments and Assemblies legislate with powers borrowed from this Parliament? In other words, their legislation is not primary legislation in the accepted form of that word, but secondary legislation, ultimately subordinate to the power and authority of this Parliament, if that power were to be used. If the noble and learned Lord the Lord Chancellor cannot give an answer this afternoon, I should be delighted to receive it in written form.

The noble Lord, Lord Holme of Cheltenham, mentioned that old chestnut, electoral reform. I wonder whatever happened to that wheeze. Perhaps the noble and learned Lord the Lord Chancellor will be able to tell us.

This has been a good and important debate, but I conclude with one further thought. Why, in this maelstrom of change, is another place the one institution that has not been changed, except to muddle it further, although it is the one institution that surpasses all others in importance? During the past few years, we in this House have fought a rearguard action against the ambitions of the Government, as set out in 1997, to master and control your Lordships' independence. Time and again, that spark of independence has been useful; it has saved Ministers from disastrous overreaching of executive power on issues as diverse as the surveying of e-mails, the defence of jury trials, the rights of electors to election addresses and the freedom from arbitrary detention. Time and again, proposals such as those have passed through another place as if they were as controversial as cranberry sauce at Christmas.

Noble Lords have only to accept half of what was said by the noble Lord, Lord Weatherill, or the noble Lord, Lord Sheldon, to know that there is something rotten in another place. My noble friend Lord Marlesford called it "disarming Parliament". That is a good phrase. We are all the weaker for what has happened in another place. It is no wonder that turnout at elections continues to fall.

Is it not essential that far-reaching and effective reform of another place is brought further to the top of the constitutional agenda? We on this side are ready to meet that challenge; we are ready to reduce the size of another place, to buttress the independence of Back-Benchers and Select Committees and rebuild some of the procedures for scrutinising legislation that have fallen into disuse. If we could expect some attention from the Government on that matter, an assurance

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from the noble and learned Lord the Lord Chancellor would make this important debate even more worthwhile than it has been.

5.27 p.m.

The Lord Chancellor: My Lords, the noble Lord, Lord Norton of Louth, is to be congratulated on securing the debate. It has made for an interesting and scholarly rundown to the end of term.

The noble Lord has consistently criticised the Government for having, as he sees it, no coherent theory of the constitution and no intellectually consistent strategy for reforming it. He also implies that without the former—a proper theory of the constitution—we should not even have dared to embark on the latter—the reform of the constitution. I fear that if purism of that kind had informed our approach there would have been none of the progress since 1997 that has been approved by so many of your Lordships today.

The noble Lord knows that, in the area of constitutional change, I believe that we can proceed by way of pragmatism based on principle, without the need for an all-embracing theory. I accept that we do not have an all-embracing definition of the constitution. As I told your Lordships' Constitution Committee, which the noble Lord chairs so well, I considered its own definition,

    "the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual",

as good as any I had read, but I do not endorse it as a government definition or as a personal definition. Nor does it address what the content of the constitution is, or any theory that may lie behind it.

The question whether any particular proposed measure should be regarded as constitutional is one on which a pragmatic view should be taken. The fact that a major part of our constitution is to be found in conventions illustrates that there is no all-embracing definition. Many important political developments have been effected since 1688 without any recourse to legal forms. The constitutional conventions describe and explain how our constitution works, lives and grows. Examples include the convention that the Sovereign acts only on the advice of her Ministers, the doctrine of collective responsibility, and that a government defeated on a Motion of confidence on the Floor of the other place should resign. Just as there is no all-embracing definition of the constitution, similarly there is no all-embracing definition of what is a "constitutional measure". Clearly, the Government have, since 1997, introduced a number of reforms that could be called "constitutional measures". An obvious such reform is the Scotland Act, with its ample devolution of legislative power to Scotland, which results in the Scottish Parliament passing primary legislation, not delegated legislation.

I do not myself see the absence of an all-embracing definition of "the constitution" as any problem at all. Our system of government and parliamentary supremacy

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mean that there is no difference between our arrangements for the treatment of "constitutional" measures and any others.

Moreover, it is true that we have no written constitution—that is, written down in a single place—but we do not seem to have suffered as a result in comparison with other European countries. Our governance has been remarkably stable over the centuries and our institutions have been conspicuously durable.

It may disappoint the noble Lord but I am sure that it will not disappoint or surprise your Lordships to learn that we reject the argument that because we have no all-embracing definition of the constitution, we therefore should not introduce measures that beneficially change our constitutional arrangements.

The noble Lord criticised us because he claimed that the Government have no vision of what they want the constitution to be in 10 years' time, for example, and no consistent philosophy behind our reforms. Neither is true. All of our reforms were fundamentally informed by three principles. The first is that we should remain a parliamentary democracy with the Westminster Parliament supreme and within that the other place the dominant partner. Secondly—I say this with particular regard to the notable contribution of my noble friend Lord Sheldon—we should increase public engagement in democracy, developing a maturer democracy with different centres of power where individuals enjoy greater rights and where government is carried out closer to the people. I say to the noble Lord, Lord Holme: pluralism, yes, and decentralism, yes. Our third principle is that the correct road to reform was to devise a solution to each problem on its own terms. That was not carelessness or lack of consideration for possible linkages between different reforms; it was a recognition that that is the way that our constitution has always developed and should develop.

If, as the noble Lord, Lord Marlesford, contends, there was insufficient attention to the linkages, I should have to plead guilty because my chairmanship of the Cabinet committees concerned with the constitutional change programme was intended to prevent that from happening. So I would not plead guilty, would I?

I turn to devolution. Some claimed that that would mean the break-up of the United Kingdom. Not so. The powers of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly have been devolved from the Westminster Parliament. They could, in principle, be recovered at any time, however improbable that obviously is. Regrettably, in the case of Northern Ireland, it has been necessary for the time being to do so. But I believe that the union between Scotland and England has been strengthened, not weakened, by devolution.

The sovereignty of Westminster is preserved but Scotland and Wales have government that is closer to the people, which can respond to their particular concerns and which (for Scotland) does not have to wait for legislative time in a Parliament dominated by English interests. Moreover, the arrangements

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established over the past three and a half years provide a robust basis on which successful long-term relationships can be built between the Government and the devolved administrations.

The detailed arrangements in each case reflected the historic circumstances of those nations. Scotland, with its long history of a distinct legal system, Church and education system, and the continuing need for separate legislation in many areas of life, has a Parliament and Executive that reflect that historical legacy with their high level of autonomy over the legal system, economic development, industrial assistance, training, transport, the police and the penal system. I was disappointed to hear the noble Lord, Lord Strathclyde, trot out the mantra that the constitutional reform programme was abrupt, prescriptive and ill thought out. On the contrary, it was well heralded, well debated—not least in your Lordships' House—and well thought out. My advice to the Conservative Party in Scotland is that if it wants to rehabilitate itself as a political force in Scotland, it should stop living in the past and be active in the Scottish Parliament and be seen to be helping to make devolution to Scotland the success that it is.

Wales has been much more closely integrated with England for much longer and it has a system which reflects that closeness. Its Assembly has taken over the powers of the Secretary of State, but cannot make primary legislation, unlike Scotland. Devolution, however, provides a transparent framework for the government of Wales and a focus for national identity. The Northern Ireland settlement, similarly, reflects the particular circumstances of the Province's history and politics in, for example, the specific provision for power-sharing.

It has been said by some that our system of devolution is asymmetrical. It is, and it was intended to be, so as to reflect the different circumstances of the different parts of the United Kingdom.

We have given the people of London—one of the great capital cities in the world—the opportunity for city-wide government to secure its strategic interests and the voice that it deserves. I say to my noble friend Lord Morgan that we are addressing the English question. We are offering the regions of England the opportunity to establish directly elected regional assemblies. Elected assemblies will have important strategic powers over regional issues, such as economic development, planning, housing and transport, but no region of England will have regional government forced on it. Just as devolution and the Greater London Authority were introduced only after the proposals had secured majorities in referendums, the same will apply to any directly elected assemblies in the regions of England.

The consequences of devolution will be to allow the United Kingdom to draw strength from its diversity, which should be embraced as a source of strength and innovation. Under the new settlement, the United Kingdom will be far more than the sum of its parts. A new Britain is emerging with a revised conception of citizenship that recognises the mix of cultures and traditions that form our Union.

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I turn to the Human Rights Act. This immensely important measure, which I was proud to pilot through your Lordships' House, where it began, had a clear starting point: a pragmatic view of our constitutional arrangements. That view is of an accommodation between the state and the individual and of a new and dynamic co-operative endeavour that is developing between the Executive, the judiciary and Parliament. It is one in which each works within its respective constitutional sphere to give ever-developing practical effect to the values embodied in the Act. The Human Rights Act respects the sovereignty of Parliament. It enables people to pursue their human rights in their own courts. It will, over time, lead to a new culture of rights and responsibilities. The prophets of doom over that Bill have been proved comprehensively wrong, just as they have been over devolution. The union was strengthened, not weakened, by the Scotland Act. The Human Rights Act has not seen the end of civilisation as we know it. There has been none of the predicted chaos in the courts. It has not seen the rule of judges taking over from the rule of politicians. Nor has it seen the politicisation of the judiciary. The overriding theme which emerges from the impact of the Act in practice so far is one of balance: balance between scrutiny and deference; between the individual and the community, and between radical interpretation of statutes and declarations of incompatibility. The Act should be celebrated by all those who believe in our tradition of freedom under the law—as important a part of our constitution as any institutional arrangements.

The Freedom of Information Act is gradually being brought into force—I recognise not as fast as the noble Lords, Lord Holme and Lord Goodhart, would wish. But, from the beginning of this month, every government department is obliged to have a publication scheme, setting out the information it will routinely make freely available. On the immensely important subject of elections—fundamental to our democratic arrangements—we have established an independent Electoral Commission, answerable to the House of Commons, and not to government, to oversee the electoral system in this county.

Your Lordships were unlikely to have allowed a debate on the constitution to pass without reference to reform of this House, and your Lordships did not disappoint. We now have the report of the Joint Committee. I was amused, but not at all surprised, to hear that the chairman of that committee, my right honourable friend the Member for Copeland, had spoken frankly about the difficulty the committee had experienced in even identifying and commenting on seven options for the composition of your Lordships' House. No doubt your Lordships will be studying it carefully over the Christmas Recess, preparatory to our two-day debate on 21st and 22nd January. My noble friend Lady Scotland looks forward to opening that debate and I look forward to winding it up. The contribution of my noble friend Lord Sheldon to the debate gives a foretaste of how interesting that debate will be.

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It may be that the executive's power over Parliament has grown excessively. But that is no justification for ill-advised reform of this House, under which instability between the two Houses might make the life of the executive of whatever political colour more difficult, but would be very damaging to the stability of Parliament. The noble Lord notes—I believe regrets—but accepts as inevitable that the other place no longer attracts the breadth of experience that it once did. But I emphasise that this House, as an appointed House, does. So I agree with my noble friend Lord Morgan that for this House to be efficient it must add value to Parliament. That primarily must be through its composition—the kind of people that it attracts. The speech of the noble Lord, Lord Fowler, was, if I may say so, essential reading for our debate in January.

This has been an interesting debate. I conclude by saying that, despite the strictures of the noble Lord, Lord Norton of Louth, the Government believe that they will be remembered and approved by history for their record of constitutional reform. The noble Lord, Lord Holme, was generous enough to agree, as did my noble friend Lord Morgan.

We believe that the way in which we have approached these reforms is consistent with the traditions of the development of our constitution—ever pragmatic, evolutionary where possible, but not fearing to make major step changes where needed, as was the reform of this House. Our nation, our democracy and our constitution will, I hope, over time be seen to have been regenerated by our efforts.

5.46 p.m.

Lord Norton of Louth: My Lords, this has been a very good debate indeed. I am most grateful to all noble Lords who have taken part. There have been some very thoughtful speeches from all parts of the House, with several noble and scholarly Lords participating.

Your Lordships' House is an ideal arena in which such an important debate can take place. I very much hope, as I said in opening, that this prompts further. I am especially grateful to the noble and learned Lord the Lord Chancellor for responding so fully to the debate and for confirming my interpretation of the Government's position. The noble and learned Lord has been extremely open in his response and—perhaps I may say—in so doing has given me a great deal of ammunition for the future.

My Motion calls for Papers. When I have previously initiated debates in your Lordships' House, whether on the burden of bureaucracy on universities or on the case for parliamentary reform, I have made the point that the last thing that I want is more papers. Today is different. This is a subject on which I should like to see more papers. However, I shall abide by the conventions of the House. I shall do so for two reasons: first, to avoid apoplexy on the part of the Clerks; and, secondly, because conventions constitute an important component of the constitution of your Lordships' House—a constitution worth defending.

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My Lords, I beg leave to withdraw the Motion for Papers.

Motion for Papers, by leave, withdrawn.

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