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My Bill addresses the latter point with root-and-branch reform as well as putting in place effective discipline for Members of both Houses when they fall below strict codes of conduct. We heard from the Prime Minister yesterday a vapid, delusional Statement promising yet more debate, consideration and consultation. Yet the Government have the lightest legislative programme in modern times.

Lord Forsyth of Drumlean: My Lords, I am grateful to the noble Lord. On his point about breaching trust with the electorate and unscrupulous behaviour, does not promising a referendum on a treaty and then reneging on that lead to exactly the kind of problem he is describing, a promise made by his own party as well as the Benches opposite?

Lord McNally: My Lords, while commenting on that, would my noble friend comment on noble Lords who do not have the courtesy to take part in the debate but use House of Commons tactics to get their names into Hansard making cheap party-political points?

Lord Tyler: My Lords, I need not comment further on what my noble friend has put so persuasively. I just make this point: we have had successive and considerable debate about the difference between the treaty and the original constitution. I do not propose to go any further down that particular route.

As I was saying, the Government have the lightest legislative programme in modern times. They are clinging to office without any idea what they want to do with power. Time is running out. The Prime Minister has at most 10 months before the law forces the general election that he has resisted. The time for commissions, committees and endless consultations is over. This new “grand committee” that we were told about earlier in the week, which actually turns out to be a Cabinet sub-committee, is extraordinary. These ministerial escape chutes will no longer do. What we need now is not more protracted debate but urgent decision.

When the Minister responds, I hope that he will not insult the intelligence of Members of your Lordships’ House by making promises for yet more talk. He and his colleagues must now concentrate not on what needs to be discussed but on what needs to be done and when it is going to happen. As the Prime Minister said yesterday:

“It will be what we now do, not just what we say, that will prove that we have learned and that we have changed”.—[Official Report, Commons, 10/6/09; col. 795.]

This is his chance to prove it. I beg to move.

11.55 am

Lord Howarth of Newport: My Lords, we should all be extremely grateful to the noble Lord, Lord Tyler, for enabling us to hold this debate. I hope that he will forgive me if I do not devote my speech to examination of his particular propositions in detail; we are not, after all, yet in Committee on his Bill, so I will talk about rather more general issues. I want to counsel

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some caution amidst all the current zeal and busyness over constitutional reform and amid all the talk of radicalism.

That is not to say that I do not have great respect for the propositions of the Liberal Democrat party. Its members have thought consistently and seriously over a considerable number of years and we owe them a debt for keeping these issues before us. However, at the same time, I would like to rein them back a little if I could. Our historical experience is that, in matters of constitutional change, the old adage, “more haste, less speed” applies. We can look back at many historical instances: the Levellers; the British enthusiasts for the French revolution, who formed societies to correspond with the French Jacobins; and the Chartists. All sowed invaluable and precious seeds of change, but they were slow to germinate. Constitutional change in this country has been characterised by incrementalism, which is a good thing on the whole.

Lord Holland wrote to the King of Naples at the beginning of the 19th century, when the newly installed King of Naples had inquired whether Lord Holland would be able to supply him with a written constitution. He replied:

“You might as well ask me to build you a tree”.

The metaphor of organic growth that Edmund Burke taught us to use as we think about the constitution is profoundly wise.

That is not to say that this is a moment for complacency. Mr Podsnap in Our Mutual Friend observed:

“We Englishmen are Very Proud of our Constitution, Sir. It Was Bestowed Upon Us By Providence. No Other Country is so Favoured as This Country”.

I do not think that Mr Podsnap would catch the national mood of today. There is a restlessness; there is a seeking after change. However, I suggest that, as parliamentarians in either House of Parliament, we are trustees of the British constitution. We hold the constitution in trust on behalf of the people who have allowed us, for the time being, to play a part in politics and government. The constitution is not the plaything of enthusiasts in think tanks, nor of the caprice of the Front Benches. It is significant that it has been the convention in the House of Commons that significant constitutional measures are debated in Committee on the Floor of the House. I very much hope that that will remain the tradition, and certainly that the guillotine will not be applied to any such legislation.

Nor, of course, should constitutional change be embarked upon merely as a matter of party advantage—and least of all, I suggest, out of panic. It is a non sequitur to say that, because the people have expressed their strong displeasure at how the system of allowances has been allowed to develop, it follows that there need be wholesale constitutional reform. It is true that parliamentarians have been less self-critical and more self-indulgent than they should have been, within the code of a club, but the remedies that are needed should be precisely addressed to these problems.

Major constitutional reform requires, as a precondition, extensive debate, much pamphleteering, much listening, much speechifying, much listening again and the slow forging of an emergent consensus. That consensus needs to be a great deal wider and deeper than the

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consensus between the Front Benches. My right honourable friend the Prime Minister has recognised exactly that. In his Statement repeated in this House yesterday, he stated:

“Democratic reform cannot be led in Westminster alone ... Rather, it must principally be led by our engagement with the public ... It cannot be top-down”.—[Official Report, 10/6/09; col. 641.]

That is exactly right.

I think in that same spirit what the Prime Minister has to say about his personal preference for a written constitution is expressed in entirely appropriate terms:

“I personally favour a written constitution but I recognise that changing this would represent an historic shift in our constitutional arrangements. Therefore, such proposals will be subject to wide public debate and ultimately the drafting of such a constitution should be a matter for the widest possible consultation with the British people themselves”.—[Official Report, 10/6/09; col. 642.]

In that spirit, it is indeed appropriate to venture forward. If we are thinking about the implications of a written constitution, I am sure that we shall not overlook the drastic implications for the relationship between the judiciary and the legislature. We should observe that even the preternatural wisdom of the founding fathers of the American constitution landed Americans to this day with gun laws that they are unable to get rid of as a result of a component of the constitution which was designed to ensure greater equality vis- -vis what had been a feudal society. The constitution gave every citizen the right to bear arms because the aristocracy in Europe had had the right to bear arms. The result is that you have gun laws which provide a licence for people to murder each other on a rather large scale because it is one of the sanctities of a written constitution which seems to be impossible to reform.

Some noble Lords will have read a very interesting article by the noble Lord, Lord Turnbull, in the Financial Times recently, in which he expounded the attractions of the separation of powers. I think any parliamentarian from this country who has visited Washington and seen the powers that are exercised by congressmen and senators under that constitution cannot but be envious. Above all, the power of appropriation gives congressional and senatorial committees extraordinary power over the Executive. In the American Congress, elected politicians are not dominated by the Executive as they are here, and that is attractive. But how would you have a system of separation of powers that avoided the characteristic problems that we also see in Washington—the power of lobbyists and most importantly the inability of the Administration to be able to achieve its legislative ambitions? The constitution was engineered precisely to ensure checks and balances that make it difficult to legislate. How welcome would that be in this country? To some it would be very welcome, but not to all. Among the consequences, I think, of the inability of US Administrations to achieve their purposes in domestic policy is that they have had a propensity instead to go adventuring abroad, whether to Guatemala, or Vietnam, or Somalia, often with very unhappy consequences indeed. These issues are very complicated and there are many lessons to learn from history.

Where then is there agreement, and what constitutional reforms might we wisely put first? Of course, we need reforms to the system of allowances that has been the

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subject of such vexed controversy, and I will not say any more about that because we are going to have plenty of other opportunities to talk about it.

To my mind, the most important front upon which we should engage to renovate our democratic culture is the renewal of local government. The Communities and Local Government Select Committee in another place has just produced a very thoughtful and very valuable report entitled The Balance of Power: Central and Local Government. This is among the five major issues that the Prime Minister has proposed that we should set out to debate. On the devolution of power and engagement of people in their local communities, he said that,

But note the use of the term “devolution”. The heart of the difficulties that we find as we try to strengthen our democracy and encourage greater participation and responsibility within our democracy is that historically power in this country has stemmed from the centre. It is the legacy of monarchy. Powers of local self-government were historically granted to chartered boroughs by the Crown. Our constitutional history from the Reformation until today is essentially the story of a struggle for power between Parliament and the Executive.

There were the constraints on absolute monarchy in the 17th century and the achievement of a limited monarchy in 1688-89, but then the snatching of defeat from the jaws of victory: as Parliament gained more control over the Executive, the Executive gained more control over Parliament as Ministers took upon themselves the powers that the Crown had originally exercised. Now we see Parliament trying to pull some of those powers back or titbits being offered by the Executive. Indeed, part of the noble Lord’s Bill is a power for the House of Commons to ratify treaties and to validate going to war. But whether this would be a real transfer of power from the Executive to Parliament is doubtful because, of course, the Executive dominates Parliament and the votes would be whipped.

When we consider local government, we hear the condescending language of “earned autonomy”. Local authorities would exercise powers, not because it is a right of people in their own communities to enjoy such powers, but because the powers would be granted condescendingly by central government, from which power flows. So what the Prime Minister proposes would be a remarkable breach with historical tradition. I think it is a necessary breach. It is extraordinarily important that we should genuinely invigorate our local democracy and thus the whole of our democratic culture.

Indeed, we will not get a smaller House of Commons unless there can be real self-government at the local level. That will not happen unless central government are prepared to relinquish control of resources to an important extent. Can we see the Treasury willingly letting go? It is hard to forecast. Will people in this

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country tolerate the inconsistencies and disparities of the provision of services that would follow from a greater degree of local autonomy if the centre was not redistributing resources and thereby exercising its influence? We do not like postcode lotteries.

The Prime Minister also rightly insists that we must create a better public engagement with politics. The withering of local democracy that we have seen is, of course, part of that problem. We need to consider why people have become alienated from the Westminster democratic process. Is it because they consider that the debates that really matter happen elsewhere, in broadcasting studios and on the internet? Is it because they consider that the power that really matters is elsewhere, in the hands of judges, the European Union or the devolved Administrations? Is it because there are these days no great clashes of ideology or principle? Is it because of the weakening of class identification? These are complex issues, but we must do our very best to reconnect the people with our politics at Westminster.

Where there is no consensus is that there should be an elected second Chamber. That is a matter of great divisiveness here and a matter of substantial indifference among the public. I simply observe that it is not the panacea that some people think it would be for our national ills, or even for our political and governmental ills.

I conclude with a sentence or two on the media. Nothing was said in the Prime Minister’s Statement about the media, but in our unwritten constitution the media have a very important constitutional role. They mediate information; they mediate the debate. There are brilliant reporters, commentators and interviewers. They often show us up in our failure to hold Ministers and Governments to account as we should. I would of course uphold their right to do that and to expose abuse, injustice and incompetence in government and politics. But they cause great damage when they are cynical, casual, reckless and when they treat the coverage of politics as a power game and even as a blood sport. My main indictment is that the trivialisation of politics by the media, reducing so many issues to personalities and soundbites and assuming that people have an attention span of little more than 10 seconds, makes it well nigh impossible for a complex or subtle argument to be put forward.

It may be said that people get the newspapers they deserve and that there is an accountability of the marketplace. It may be said people should stop buying the newspapers. But we need a responsible media. A liberal state cannot regulate, and should not regulate, the media. Mr Gladstone observed that,

I would just like to know from my noble friend when he comes to wind up whether the Prime Minister’s plans to set out in a document rights and responsibilities will include an attempt to define what the rights and responsibilities of the media should be. How else can we influence the media to enable us to have a mature and decent democracy?



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12.11pm

Lord Norton of Louth: My Lords, I, too, congratulate the noble Lord, Lord Tyler, on securing this very timely debate—it is even more timely than he probably anticipated.

No sooner has a new ministerial committee, the democratic renewal council, met than we have a Statement. The Statement yesterday was billed as being on the constitutional renewal Bill, but at no point was there actually a reference in it to the constitutional renewal Bill. There appeared to be last-minute reflection on timescale for consulting on constitutional issues. The printed Statement said the Government would consult on particular issues “over the coming weeks” but what was said in delivery was “over the coming months”.

It is not that surprising, therefore, that in looking at the constitution in conceptual terms, the Statement lacked coherence. Various approaches to constitutional change have been developed in recent years, each advocating a type of constitution deemed most appropriate for the United Kingdom. The Liberal Democrats advocate one approach, as we have heard, but it is only one. The Statement yesterday bore no relationship to any of the approaches. It embodied a number of proposals—some concrete and some somewhat more fluid—but what they lacked was a clear philosophical base. In so far as we can give some shape, or attempt to give some shape, to the Statement, it is in distinguishing those measures which merit introduction in this Parliament from those which are for future Parliaments.

My first point, therefore, relates to where to draw the line. What should we legislate for within what remains of the current Parliament and what should be for future consideration? Indeed, what form should that future consideration take? It is crucial that we make this distinction. I believe it is necessary in relation to the crisis that we face. There are those who argue that the present crisis of confidence necessitates constitutional change—indeed, radical constitutional change. There is no compelling logic to this argument. What we are facing is a crisis of confidence in the political class and not in our basic constitutional arrangements. What flows from this is a need to focus on rules —standard-setting rules—rather than structures. Some changes to the rules can be achieved without the need for legislation. Others can be embodied in legislation.

The focus within the current Parliament should thus be on making changes within, rather than to, our existing constitutional arrangements. Changes to the constitutional system are for the future and not the fag end of the current Parliament. Our immediate concern, therefore, should be ensuring that relationships within our existing constitutional framework are strengthened. There are two basic relationships: that of Parliament to Government and that of Parliament to people. We have not neglected the relationship of Parliament to people, but we have tended to focus on the relationship of Parliament to Government. We have historically acted as a somewhat closed institution, almost operating in a vacuum. The impression that electors presently have is that we are too insular and self-regarding. We need therefore to address both relationships—to strengthen Parliament in calling Government to account, and to be seen to do so; and to strengthen our link with the

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people, ensuring that we are seen to act in the public interest and not on the basis of self-interest. We can do much under both headings without legislation. That was recognised in the Statement yesterday, and I welcome it. I would take it further. There is a need for more extensive pre-legislative scrutiny. We can do more in this House in making use of evidence-taking committees for legislative scrutiny. Both Houses can do more in relation to petitions, not least e-petitions.

What then requires legislation? The Government propose to introduce a Bill to provide for statutory regulation of parliamentary standards. Other proposals may need to be incorporated in the constitutional renewal Bill. What should be considered? I suggest two candidates. In an earlier debate, I advocated putting on a statutory basis those standard-setting bodies that fall under the Cabinet Office. Those include the Committee on Standards in Public Life. Given the need for public reassurance, that would be a beneficial move. The committee could be the regulatory body envisaged in yesterday's Statement, but serious consideration should be given to putting it and related bodies on a firmer footing.

The other proposal relates to your Lordships' House. Provisions governing conduct, such as the power to expel, may be included in the Bill envisaged in the Statement. However, current concerns extend beyond conduct to encompass membership—that is, becoming a member and the size of the House. We need to put the House of Lords Appointments Commission on a statutory footing, providing reassurance to the public that all nominees meet a clear—and high—quality threshold. We also need to make provision for Peers to take permanent leave of absence. It may be possible to achieve that without legislation, but we need to explore how best we can allow Members to take honourable leave of the House after distinguished service. The size of the House is already a concern. It will become even more so after the next general election. It is imperative that we act as quickly as possible to reduce the size of the House.

I am conscious of trying to put too much into a Bill that is already five Bills in one. Our approach must be one of combining statutory provision with non-legislative actions to address current—and legitimate—public concerns about the conduct of parliamentarians. On conduct, we have to craft rules that are clearly expressed, transparent, fair, enforceable and seen to be all of those.

My second point covers what we should not include in legislation in this Parliament. We have already seen significant constitutional change over recent years, or rather—crucial to my argument—significant constitutional changes. They have been disparate and discrete measures, collectively having a major impact on our constitution, but without deriving from any clear conception of the type of constitution appropriate for the United Kingdom. The Government have at no point articulated an intellectually coherent approach to constitutional change. When we debated the constitution in December 2002, the then Lord Chancellor—the noble and learned Lord, Lord Irvine of Lairg, who we are delighted to see in his place—admitted that the Government had no overarching theory. There has been something

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of a change of direction under the premiership of Gordon Brown, but we still do not know the intended destination.

Given the incoherence of the changes and of yesterday's Statement, the last thing we need is to rush into making more, especially changes that the public cannot relate to the current crisis of confidence. I very much endorse the comments made yesterday by the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady O'Neill of Bengarve. We have to get a clear grasp of what we have done so far. We need a major exercise in cartography. To undertake the exercise I have in mind, the body has to be detached from Government.

For that reason, I have previously made the case for a commission on the constitution. It could take the form of a parliamentary committee of inquiry, of the sort advocated by the Public Administration Committee in the other place. Though the format may be somewhat traditional, it is important that the form of consultation with the public and interested parties is anything but. We have the means to harness new technology to ensure wide-ranging and interactive consultation. We can draw on an extensive range of opinion and not simply the usual suspects. It may be that we should consider making such a body permanent.


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