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The main point is that we need to make sense of where we are. What are the constitutional principles that govern, and now link, the different parts of our constitution, and how well do the parts relate to one another? That, I submit, is a necessary condition before we consider any further major changes to the constitution of the United Kingdom. Given that, as a starting point to such an exercise, it will be helpful if the Minister will tell us the philosophy that dictates the Government’s approach to constitutional change. Do they have a philosophy? Yesterday’s Statement suggests that the answer is no. I invite the Minister to surprise us.

12.21 pm

Lord Armstrong of Ilminster: My Lords, I congratulate the noble Lord, Lord Tyler, on choosing this subject for debate this afternoon. He is, perhaps, luckier than he expected. It is indeed timely. With two right reverend Prelates taking part in today’s debate, perhaps I may be forgiven for taking a text for my contribution. My text will be the contribution to yesterday afternoon’s discussion by the noble Baroness, Lady O’Neill of Bengarve. It was wise and brief; I only wish that I could match it, both in wisdom and brevity.

The restoration of trust in our parliamentary institutions, and particularly—but not only—in Members of the other place, requires us to deal urgently with Members’ expenses and allowances. It is sad that Members can no longer be trusted to police their expenses themselves. Members of both Houses of Parliament should be able to be trusted to act responsibly and with integrity on their expenses and allowances, as well as on other matters. As it is, not only should we embrace transparency; we also have to accept independent scrutiny and supervision. However, I suggest that the membership of the body that is set up for this purpose should include a minority of representatives from your Lordships’ House and from the other place. It

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should not be difficult to identify one or two Members from each House who could be trusted as having the integrity to take an unbiased part in the work of the body and who would have the knowledge and experience to contribute an understanding of the legitimate needs and concerns of the two Houses and of their Members.

For the rest, as is already clear from the earlier speeches in this debate, in the wake of the furore over Members’ expenses and allowances, many ideas for wider constitutional reform are already swirling around. I agree with the noble Lord, Lord Norton of Louth, that the necessity for wider constitutional reform does not follow logically from the argument about Members’ expenses and allowances, but it has created the furore and it is right that we should use the opportunity to consider seriously what we should do about it. There is not now time to legislate on all the ideas swirling around about constitutional reform; indeed, there may not be time to legislate on any in this Parliament. It is more important to get it right than to get it written, so we should not rush into a change, but use the interval for a mature and considered public discussion of the ideas and suggestions, the merits and demerits of each, and how they relate to each other. I respond sympathetically to the plea for intellectual coherence made by the noble Lord, Lord Norton of Louth.

I suggest that this public discussion should not, and perhaps even cannot, be led or co-ordinated by the Government at a time when it will inevitably be overshadowed by the prospect of an imminent general election. Constitutional reform that is to be widely accepted needs to be founded on a degree of consensus which is above and beyond any narrow party policy. I understand the view of the noble Lord, Lord Tyler, that not all party politicians are angels.

Of course, the political parties should have a large input into the discussion. After all, it is the politicians who work the system and who have to make it work for the public good. However, it seems to me, as it evidently seems to the noble Lord, Lord Norton, that this big, complicated and diverse task needs to be drawn together by a small, high-grade, high-level, well staffed and independent royal commission or some such body that can pursue with determination and dispatch an orderly programme of collecting and collating the ideas, assessing their strengths and weaknesses and their capacity to command widespread public support, undertaking the consultation which modern technology makes possible, setting the ideas in a coherent framework or pattern and producing a set of recommendations for an articulated and prioritised programme of measures to be taken up in legislation and otherwise in the new Parliament after an election.

They say that royal commissions take minutes and last years. They need not last years, if we do not want them to and if they are businesslike and well organised. And we have at any rate, since the election is not likely to take place immediately, a little time to make a very good start on that process before it comes. I am sure that political parties should be represented on the body that undertakes this work because of the input they have to make to it, but they should not dominate it or constitute a majority of its members.

I am not one who thinks—

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Lord Lester of Herne Hill: My Lords, does the noble Lord remember what happened when his suggestion was taken up many years ago and we had Lord Kilbrandon’s commission on the constitution, which went around the country, did exactly what the noble Lord said and led to precisely nothing.

Lord Armstrong of Ilminster: I remember it well, my Lords, and I am grateful to the noble Lord, Lord Lester, for reminding me of it, but I believe we can do better than that in the current situation.

I am not one who thinks that we should give ourselves a written constitution. In a sense, of course, we already have one: our constitutional arrangements are described in great detail and with great authority in many learned volumes, but these are descriptions, not prescriptions. The fact that the constitution is set out in conventions and not in statutes means that it is a living organism—as the noble Lord, Lord Howarth, said, a tree—and not an ossified structure. Because we have a mature democracy, we have the great advantage of a mature and developed constitutional system that has grown over many years, adapting to the needs of the times. It is flexible enough to broaden out from precedent to precedent, as situations change and circumstances require.

I do not propose this afternoon to discuss any of the ingredients of constitutional reform that have been swirling about our ears in recent weeks. I resist that temptation, although I have my own ideas about most of them. I wish only to air a modest proposal, which could be introduced without legislation and with immediate effect, and which would make for better drafted legislation, better parliamentary scrutiny of legislation, better accountability of government to Parliament, better public appreciation of the role and importance of Parliament, and greater self-esteem among Members of both Houses of Parliament. All it requires is a little restraint and self-discipline in government. Is that too much to hope for?

We have experienced in recent years the introduction of a series of massive portmanteau pieces—blockbusters —of legislation, each of which brings into one single gargantuan blockbuster of a Bill an often ill-assorted and sometimes unrelated set of measures. The Government’s own draft Constitutional Renewal Bill last year was a case in point, including in one Bill, as it did, half a dozen more or less unrelated measures. The Coroners and Justice Bill, which is now going through this House, is another such measure. This is very convenient for the Government of the day, since each gargantuan Bill needs only one Second Reading, one Committee stage, one Report stage and one Third Reading in your Lordships’ House and in the other place. These Bills never get thorough or even adequate parliamentary scrutiny, at least in the other place, and there is a growing tendency for much of the detailed legislation required to implement the main proposals to be left to delegated legislation, which is often very complex and difficult to understand, not always as well drafted as it should be, and incapable of being amended by Parliament. The Government get away with murder.

My proposal is that the Government should make a self-denying resolution to eschew these huge portmanteau blockbusters of legislation, revert to the habit of

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introducing simpler single-subject Bills, and allow Parliament to take time to heed and reflect on the views of interested parties and public opinion, to scrutinise the Bills properly, and to amend them where they need to be amended. That might mean a larger number of Bills coming to Parliament, but they would be smaller clearer Bills, each concentrating on a single purpose. That should give us lighter and more transparent legislative programmes, better parliamentary scrutiny of legislation, and probably less and certainly better legislation. This would give Members of both Houses of Parliament a renewed sense of the value of their work, and would help to restore public confidence in our governmental and parliamentary institutions. In short, I suggest that this modest proposal could be effected without legislation, and would be good for the Government, good for Parliament, and good for the country.

2.33 pm

The Lord Bishop of Liverpool: My Lords, I, too, thank the noble Lord, Lord Tyler, not only for this timely opportunity for the debate but for the many important features in his Bill. In his helpful Explanatory Note, he emphasises the importance of discerning principles. I welcome that, because this debate must proceed philosophically by looking at certain principles. I should like therefore to discern and explore one particular principle from his Bill and apply it more broadly to this whole debate on constitutional renewal for which, as we have heard, the Prime Minister has called.

We have before us a proposal to create a citizens’ assembly to review and renew the electoral system. This assembly will have great power and will in effect occupy a place of authority over Parliament in deciding and framing the question for a referendum to determine the nature and the character of Parliament. However, this assembly will not be elected. On the contrary, it will be appointed and will actually exclude from its membership people who have been duly elected to the Parliaments in the United Kingdom and in Europe. That is specified in the Bill. What is the principle here? I should be glad to hear the noble Lord, Lord Tyler, expound it when he responds.

Let me be clear; I am not criticising this, I am simply drawing attention to the fact that at the heart of this Constitutional Renewal Bill is an appointed body with extraordinary authority to shape the constitution of Parliament. I happen to be content with this proposal, but that is because, like many in your Lordships’ House, I see merit in appointed bodies, provided that the processes are transparent and accountable. The truth is that in today’s world, election, especially in this media-dominated culture in which we live, does not always deliver what is needed. Election, with respect, delivers up the political class, which is perhaps why the noble Lord does not want to use election for the citizens’ assembly, which will help to determine how the political class will be elected in future.

Please do not get me wrong; I respect the political class, and not even in the present climate would I dare to rubbish it. However, it is too narrow a constituency

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to produce what is needed, especially in this House, for a revising and legislating Assembly. We need to recover the unity of Parliament in the constitutional debate—two Houses, but one Parliament: a Commons that is elected and with the authority of having the last word, and a revising Chamber to advise, revise and refine the legislation. Such a revising Chamber should be made up of what is in effect and what could be called the elders of our society: men and women experienced in different walks of life, who, from their expertise and wisdom, can shape the laws that govern our common life. Such people cannot be limited to the political class but must be recruited and appointed with transparency and accountability and for fixed terms.

In this one Parliament, there should be—I long to see this recovered to our debate—a mutuality between the two Houses, each distinctive in character and composition but mutually dependent, the elected looking to the other for the wisdom of experience, the appointed deferring to the elected and acknowledging their authority to have the last word as the voice of the people: one Parliament of two Houses under the Crown, as a sign that our own accountability is in two directions; below to the people, above to the source of our moral intuition. I hope that this debate on constitutional renewal will not set the one House against the other. I hope that it will not force one House to imitate or to compete with the other. I hope that we can recognise our distinctiveness and not be afraid of having two Houses of different character within the one Parliament.

12.38 pm

Lord Maclennan of Rogart: My Lords, it is a privilege to follow the right reverend Prelate and then to discover that I am to be followed by another right reverend Prelate. A circle of sanctity is being put around my presence here. I express appreciation to my noble friend for the timeliness of this debate. I very much agree with his sentiments. Consequently, I will not need to repeat every word that he said. I broadly accept the thrust of his arguments, but I should like to draw attention to some other general questions.

In some quarters, notably in government circles, there has been a propensity to say that we are faced with such crises of management, in relation to the international financial situation in particular, that we are effectively required to postpone the important issues of constitutional reform with which we are engaged. I resist that argument because to me the financial crisis is at least in part due to bad government. By that, I do not mean bad Ministers so much as a bad system, which has not allowed real debate to take place about some of the issues with which this country has been faced for some time. There was a kind of consensus between the main party of government and the main party of opposition that we should live in a largely deregulated economy. That kind of consensus has contributed to the banking sector’s extraordinary difficulty with billions of pounds being spent by the taxpayer to tackle this situation.

It is not the case that we are living in a fixed constitutional situation. As the noble Lord, Lord Howarth, said, the change is incremental; he appeared to be quite content with that. Some of the changes

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take place quite without deliberation, but they have a significant impact on the way in which we achieve our aims of government. For example, in recent weeks, the Prime Minister decided to parachute into this House from outside three extraordinarily significant Ministers: the noble Lords, Lord Mandelson, Lord Malloch-Brown and Lord Myners. That action was not totally consistent with the expressed intention of reforming this House to make it more electorally accountable.

Furthermore, the establishment of the new ministry under the noble Lord, Lord Mandelson, has translated a number of departments into one with almost half the Ministers—I think, five of the 11 Ministers in this gargantuan department—being Members of this House, which has the consequence of depriving the elected Members of the possibility of directly addressing these people. I make that point not wholly critically but simply to indicate that I believe that the noble Lord, Lord Norton, is right to say that there is a conspicuous lack of coherence of view in addressing these constitutional changes.

I have mentioned the three noble Lords, for each of whom I have the highest admiration, who have become Ministers. The question is not whether they should be here but whether they should be in the Government. If they are bringing things to the Government, another theoretical constitutional issue is raised. Do we need to have these Ministers as Members of either House in order to be Ministers? They certainly could be required by Parliament to come and give an account of themselves. If they are seen to be offering such major contributions, it is worth asking ourselves that question. I am not advocating a policy. I am just trying to illustrate the need for the kind of overall coherence of philosophical approach about which the noble Lord, Lord Norton, spoke.

It seems to me that our incremental approach has serious drawbacks, the main one being that it is not speedy enough to respond to the situations that we are faced with as a nation. For some time, there has been discussion about whether the prerogative powers of the Crown, for example, were appropriate in the modern world. Many people felt that the arrangements for scrutiny and decision-making on the war in Iraq were 18th century at best, which accounted in no small measure for the division of the public over that major, central issue. It cannot be said that what we have is satisfactory or what has been proposed will address that problem. In the constitutional renewal Bill that we considered in the Joint Committee last year, there were proposals for the scrutiny of these decisions to involve the country in armed conflict, but they were so watered down that it was quite clear that Parliament would be given no serious authority over the decision-making of the Government in the event of a national or international emergency that might lead to the commitment of troops.

We have to recognise that we are not the great constitutional thinkers that we have imagined, certainly in respect of ourselves, although we have written remarkably strong constitutions for other people. I think particularly of the Labour Government’s skill in providing a constitution for that great country India

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and of how well it has lasted, how strongly it has stood up to the ravages of communalism and poverty and how it has been built on.

I do not believe that the Prime Minister’s sympathy for a written constitution, which he expressed in his Statement yesterday, is other than a very wise instinct. However, it cannot be achieved overnight and groundwork needs to be done. If we are going to involve the public, it cannot be done too quickly or just by a group of wise men, as the noble Lord, Lord Armstrong, suggested constitutional reform might best be done. I am not clear that his historical picture of how constitutional change has come about is very accurate. With the greatest respect, it seems to me that the great leaps forward have often come about as a result of a radical movement, which has led to a party riding that wave of reform and delivering.

Certainly, some things can be done without legislation. I do not doubt that it would be possible to make the Select Committees on departmental matters more accountable to Members of Parliament and less to the Whips. That sort of thing could and should be done before the next election. I was glad to see references to this possibility in yesterday’s Statement, but there are other matters involving interaction between the Executive and the two branches of the legislature that cannot be done on the back of an envelope. Consideration is required not only of the composition of the two branches, how they are to become more democratically accountable and how the public are to be involved, but perhaps also of a division of functions. What are their roles? They are not supposed to replicate each other. But if they are both legitimately elected, why should one have a hierarchical superiority to the other? Do we think that we have to stick with the notion of the primacy of the House of Commons, a body that is patently in the Executive’s power and only exceptionally calls the Executive effectively to account? Is it enough to say that, when a general election is held, the Government must govern and therefore may go on doing anything they like for up to five years? That is not the modern appreciation of how a parliamentary system should work. It ought to be much more responsive to minority opinions, taking into consideration points that may not be thought of in advance by the mainstream parties.

These, I admit, are philosophical considerations, but they lead me to the view that certain things that need to be done could be done now. I wholly accept the urgency of doing something about parliamentary expenses and I am not at all unhappy about the fact that this is related in the public mind to the need to restore confidence in Parliament by wider changes. There may be no logical connection, but there is a bubbling debate and it is therefore an apt moment to address some of these questions.

The great risk facing this country is that we will go into a general election with our electoral system unchanged. As my noble friend said, this has produced a Parliament in which no Member enjoys the support of 50 per cent of the electorate. There is a serious need to have an ad hoc arrangement for the next Parliament that would ensure that at least 50 per cent of the voters supported their own Member. That would be a proper

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and immediate response to the crisis over the expenses of Members of Parliament. The new system would not require the boundaries of the constituencies to be changed. It would be simply understood and could be given effect by Act of Parliament. It would not be a permanent change.

At the same time as the Act was going through, it would be possible to establish a referendum on alternative systems and leave that decision to the public. Preferably, it would be done not at the time of the election—that would focus the election too narrowly, and elections are often decided on matters that are not put directly to the public—but before. A very workable alternative was put forward by the government commission chaired by Lord Jenkins of Hillhead. It has been the subject of debate and its merits have been widely considered. I hope that some of these thoughts may be of some influence and attract the attention of the Minister.

12.53 pm

The Lord Bishop of Durham: My Lords, I, too, am grateful to the noble Lord, Lord Tyler, for his timely raising of this subject, in line with the Green Paper of two years ago, the White Paper of last year and his own Bill of March this year, which subsequent surprising events have shown to be—shall we say?—prophetic. I know that my right reverend friend behind me will join in celebrating the fact that the noble Lord who has just spoken is the ham in the episcopal sandwich. We hope that the noble Lord enjoys that status while it lasts.

The constitution is far more important than party politics. One might almost propose that party politicians should be kept away from constitutional reform lest it appear that they were rejigging things this way or that for party advantage; whereas the constitution ought to be the framework within which those debates take place, and not itself subject to them. That is the point made by the noble Lord, Lord Tyler, about a citizens’ assembly; though if an appointment to such an assembly were made partly by the Prime Minister, and then under a scheme run by the Secretary of State, it is hard to see how independence would be seen to have been achieved. Most people in this country think that the House of Commons is the citizens’ assembly, and, if that is not working, it is not clear how putting another structure above it would do the trick. One can imagine an infinite regress—perish the thought.

That leads to my first main point. It is alarming that the Prime Minister is using the need to clean up the expenses system as a Trojan horse to smuggle in major constitutional proposals, threatening to force them through in a rush. If even a Government in happier times, with no whiff of scandal or internal division, were suddenly to propose such a package, we would be startled: how much more when this is bound to appear as a diversionary tactic, a displacement activity, a desperate attempt to flail around in the water as the sharks close in? We need constitutional reform, but this is not the way to go about it, and this Government are not the team to do it. If we are to have serious change, it must command massive assent across the country, and the Government are now incapable of achieving that.

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