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We now have on the table creative proposals from the noble Lord, Lord Tyler, and others—nobody has yet mentioned that, last Monday, Professor Vernon Bogdanor published his new book, The New British Constitution. With proposals like this coming out, we must have a debate and not suddenly be pushed in one direction. That is not an invitation just to more talk—I take the noble Lord’s point—but to a wider discussion in which his particular and interesting proposals are to be understood. Most people in this country have only just become aware of the depth of the constitutional problem. It is time to let the saucepan simmer a little longer, rather than quickly serving the vegetables half-cooked.

In case anyone should imagine that by criticising the Government I am implicitly supporting one of the other parties, let me be even-handed. I regard with equal suspicion the call for an immediate election, or for PR. These do not address the problems in hand—either the problem of the breakdown of trust in Parliament, or the problem of the constitution. They both assume that if we only voted again, or voted differently, the sun would come out from behind the cloud and everyone in the country would smile again. No—the people I meet day by day in the north-east of England are not eager for an election, and they are not fussed about proportional representation. They want representatives they can trust who will address their real questions and interests. They do not think that another vote, of whatever shape, will achieve that. Thatis the real problem. It is a problem of legitimacy and accountability. Those are the issues underlying the proposals of the noble Lord, Lord Tyler, and we need to attend to them urgently.

Fine-tuned regulation matters, but the political malaise runs much deeper. We were warned just now about getting too philosophical, but I will say this. The cultural transition sometimes called “postmodernity” has at last washed up on the shores of politics. What does that mean? Our political systems have been relentlessly modernist, wedded to a philosophy of sociocultural progress and evolution; but most people do not think like that now, and they distrust people who do. That distrust has now been magnified a thousandfold. We cannot go back to the old modernist politics, with its embedded 18th century prejudice; but too many of today's politicians are still playing those games—and playing them to the Press Gallery—as though they were the real thing. It is time to ask the big questions about how we move through the postmodern morass, the failure of trust, and out the other side into new ways of doing things. Tinkering with bits and pieces of the system will not do. This is not just a political problem, and it is not just about Parliament: it is about where we are in the entire western cultural world.

Let us step back from the immediate flurry and point-scoring to ask what a constitution is for. A constitution is there to balance freedom and order; to ward off tyranny on the one hand and chaos on the other; to strive for justice and mercy; and to foster wisdom and responsibility. It is there particularly to ensure the proper balance between the Government and the people, with the people participating as fully as possible in the common life. Part of our problem is

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that we have gone on too long assuming that voting every few years will ensure those things. It does not and will not—hence the crisis in legitimacy and accountability. These are complex concepts. This is not the moment to explore in detail how they work, and how to create structures within which they can work; but it is because we need that exploration that I hope that the Government will be dissuaded from rash and hasty reform, replete with multiple unintended consequences.

We can at least say this. As the Prime Minister acknowledged yesterday, legitimacy does not arise just from having people vote for you. Legitimacy is also sustained by doing the job and being trusted. Public consent and approval can come through the ballot box, or in other ways. When you do not get the second form of legitimacy, sustained trust, people lose interest in the first, the ballot box. That is why more people vote in “Big Brother” than in general elections. Just as the “celeb” culture is conscripting the monarchy it imitates, so now the “Big Brother” culture is conscripting politics into its spurious and shallow populism.

These rather obvious reflections have an immediate bearing on the key questions that we must address, not least about reform of your Lordships’ House: voting matters, but doing the job matters even more. The belief that only elected Members can have any sort of legitimacy, or that once someone has won a vote it gives them carte blanche to do whatever they like for the next five years, rings extremely hollow when it is precisely some of the elected Members in another place who have brought the system into disrepute. Our whole political system has encouraged career politicians who have never run a farm or a shop or a school or a ship, and who lurch from utopianism, which gets most of them into politics in the first place, to pragmatic power-seeking, which is what they turn to when Utopia fails to arrive on schedule. The suggestion that we should solve our present problems by electing more people like that to replace the widely experienced specialists on these Benches shows how out of touch some people are with the real problems.

Many of the interesting proposals of the noble Lord, Lord Tyler, have to do with accountability, which is obviously needed—let us reform the expenses system et cetera as soon as we possibly can. However, we still hear it repeated, and again from the Prime Minister yesterday, that MPs are accountable to their constituents. Well, they are and they are not: a great many seats are completely safe, and will be even if we redraw boundaries.

Further, the media and party advertisements encourage voters to vote primarily for a party and its leader and only secondarily for the candidate. But the real problem is that if we vote “this lot” out, that will simply mean voting “that lot” in, and for many in the country today, it is the whole lot who are felt to be the problem. You and I know that that is overly simple, but voting, or not voting, for someone every four or five years remains an extremely inexact and inefficient way of holding them to account for a complex and demanding job. We need accountability, but voting twice a decade—even if we made it compulsory as in Australia; now, there is a thought—does not come

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anywhere near providing it. Greek and Roman democracy used sometimes to put their rulers on trial, sometimes even during, but certainly after, their term of office. The Athenians invented in the fifth century BC an interesting system called ostracism, where you could have a popular vote to banish somebody for 10 years. It occurred to me that one of the forthcoming new Members in your Lordships' House might be rather interested in that. I can envisage a television programme which would have as its slogan, “You’re ostracised!”

Accountability needs to be built back into the system. The House of Commons needs to return to real debates and real holding of the Government to account. Perhaps we need a Government appointed outside Parliament, as in America—as the noble Lord, Lord Howarth of Newport, indicated, and the noble Lord, Lord Maclennan, also suggested. That is at least worth discussing. Certainly, the present system, with up to 100 MPs in ministerial roles and another 100 eagerly awaiting their chance, has eliminated the debating and accounting role of the Commons and reduced MPs to constituency activists who rubber-stamp the Executive’s decrees instead of holding them up to the light of serious discussion. We need in turn a strong House of Lords that will hold the Commons to account, which we will not get by voting in another few hundred party-Whipped career politicians. As I said yesterday, be careful before you chop down your ancient trees. Political topsoil erodes faster than you might think. We may need some kind of outside, non-parliamentary body or figure, such as the Prime Minister is proposing, or perhaps the kind of independent Attorney-General favoured by the noble Lord, Lord Tyler in his Bill. But how such a person would be appointed if the office is to be free from the taint of special party pleading and how such an office is to be held to account are difficult matters requiring careful consideration. I do not see that that has yet been addressed, far less resolved.

In and through it all, we are in the business of doing justice and loving mercy. You do not achieve those either by issuing more regulations or by tinkering with the structures; you get them by humble service. “Do justice”, says the prophet Micah, “love mercy, and walk humbly with your God”. That last does not simply superimpose an old-fashioned personal piety on the practicalities. It closes the gap, the gap between freedom and order, between justice and mercy, between responsibility and trust, and between utopianism and pragmatic power-seeking. Whether or not you believe in God, humility—the recognition that we are only stewards of something greater than ourselves, as the noble Lord, Lord Howarth, said—is absolutely necessary to keep the system in balance, to foster and sustain the real legitimacy and the true accountability that we lack. Without that, we shall lurch from one sort of tyranny to another and one sort of chaos to another—we have a bit of both at the moment—even if, perhaps especially if, people keep voting from time to time and so imagine that they belong to a participatory democracy while the inward meaning has been lost.

These are only short notes towards the much fuller discussion that we should have, but I hope that they point towards that fuller discussion and warn against blundering ahead with ill-considered proposals on the one hand or an ill-timed election that will not solve the

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underlying problems on the other. We have a chance in the next few years to engage creatively and constructively with the issues which the noble Lord, Lord Tyler, and others have outlined. Let us not squander that opportunity by being bounced into giving wrong answers to wrong questions. There are right questions out there, and we on these Benches want to work with the whole House and the country at large to find the right answers. As I said in your Lordships’ House a couple of years ago, it looks as though constitutional change has been done on a wing and a prayer. We on these Benches are very happy to supply the prayer, but we want to be assured of the quality of the wing.

1.06 pm

Lord Desai: My Lords, they say in Hollywood that you should never act with children or animals. The rule here is: never follow a right reverend Prelate.

I congratulate the noble Lord, Lord Tyler, on getting a sort of Second Reading on his Bill without actually having a Second Reading. As the noble Lord, Lord Armstrong, said, while it is not as bad as the Coroners and Justice Bill, it is a sort of portmanteau for lots of things and meanders all over the place—our Civil Service, the Attorney-General, treaties and conflicts and various other things. I should like to concentrate on what is more urgent now—one reason for congratulating the noble Lord is the timeliness of this debate.

When you talk about House of Lords or constitutional reform, people say, “It doesn’t interest anybody in the Dog and Duck”. This is one occasion on which the people in the Dog and Duck are interested in the constitution. While their attention will not last for very long, because the football season will no doubt resume, it is important to seize the initiative and put forward some proposals which command attention and debate. We can then take away people’s reactions and work further on it. This is why I congratulate the Government on their Statement yesterday. People ask, “Why now? Why is it so broad-ranging?”. But let us seize the moment.

We have suggestions for parliamentary, electoral and constitutional reform. It is important not to mix them up, because they will require things to be done at different speeds. You cannot do them all at one speed and without thinking quite a lot. It is urgent that we fix the expenses structure in another place, but that is their business. I am sure that something will happen which restores trust in Parliament. The most important principle is that a Member of the elected Chamber should not have any privileges that an ordinary citizen does not enjoy. We should treat parliamentarians who claim expenses, or whatever it is, in the same way as any ordinary citizen. People cannot understand why, when they claim expenses, the tax authorities are careful in scrutinising what they can get away with, while what parliamentarians do seems not to be so scrutinised. That is a big anomaly. If we can convince people that that is fixed, that is all right.

I only want to say one thing about electoral reform. If you really twisted my arm, I would agree to some form of PR and if you further twisted my arm I would say that AV will do. I would take the Jenkins report

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without the AV top-up—rather like the French, who used to have two rounds, and only by the second round would the person elected have the majority of the electorate. But if you cannot get people to vote twice in the space of a week, perhaps we should have a system by which candidates are ranked, as they do in Australia, and chosen by a single transferable vote system. That would retain the connection of the Member of Parliament with the constituency; it is that connection that has led to the recent outrage. It is a very important indication that people care what their Member of Parliament does, especially if that Member misbehaves. If there had been a scandal about MEPs—well, nobody knows who their MEP is. Even so soon after the election, I would be hard pressed to name who my MEPs in London are. I know there is Claude Moraes, but beyond that I would fail to name them. That is because none of them has any particular responsibility attached to any territory. We must preserve the constituency with the MP and make sure that we have devices ensuring that a majority of those voting—not necessarily of the electorate, as that would require compulsory voting—has chosen the person concerned.

I do not think that we should really worry too much right now about House of Lords reform. I have always believed that any reform to make this House an elected place would require the Parliament Act 1949. It is a two-year proposition. It is rather like the American policy on Israel and Palestine. Most Governments think that they are coming to it far too late in their career and therefore there is never enough time to sort out the problem. But we have more or less an agreement or consensus that, at the next election, parties will put in their manifesto what their proposals are for House of Lords reform. That would give us enough time to pursue reform, if the winning party started immediately upon getting into office. All the arguments that have been made will have to be made all over again, but we shall get a well thought-out reform. You cannot do constitutional reform in a hurry; we will need pre-legislative scrutiny and a joint committee of both Houses of Parliament and we will need a lot of time to decide—plus the Parliament Act 1949.

I shall take up another issue that has been discussed, on the nature of the constitution. We accept too easily that we have an unwritten constitution. I want to challenge that idea and conduct the following thought experiment. When a country wants to join the European Union, it gets the acquis communautaire, which has all the legislation that will apply to the incoming member. Let us suppose that someone wanted to join the United Kingdom—what is the acquis Britannique? There is an acquis Britannique. In your Lordships' House we have had Bills in which there is a list of statutes that will not be amended by Parliament. We have had those discussions here; I think the noble Lord, Lord Norton of Louth, was involved in one of those Bills. There is a long schedule of legislation going back to the Magna Carta. That is the acquis Britannique. It is not that our constitution is not written but that it is easy to amend; that is what distinguishes the British constitution from an American constitution. It is much easier to amend the British constitution by any Parliament. Any Prime Minister with a good majority can amend the constitution,

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unless the House of Lords throws a tantrum. If we are going to have a written constitution, we must make quite sure that we do not take away from Parliament the power rapidly to change the constitution. The obstacles that we place in the way of the Parliament to alter the constitution should be well thought-out, because we do not want to find ourselves in the situation where we cannot amend the constitution.

The noble Lord, Lord Maclennan, mentioned the Indian constitution. It is interesting that the Constituent Assembly of India deliberated over two and a half years to frame the constitution, which derived somewhat from the Westminster model. Over the years, it has evolved; one very good innovation that it has, which we should perhaps adopt, is that Members of one House are allowed to be present in another House when as Ministers they have to answer questions. While the present Prime Minister is in the upper House and not elected, or is only indirectly elected, he can answer questions in the lower House and speak in debates. There is no reason why we should not do that. The ancient prejudices about the Commons and Lords not being on the same turf are entirely obsolete now. There is no reason why we should not have people going back and forth and performing ministerial functions—in which case, if we had an elected House of Lords, the Prime Minister would not be able to parachute competent people to be Ministers here but would have people over there to send across. That would be something to think about as and when we amend the constitution.

What we have here is a great opportunity to do something fairly quickly—for example, with the parliamentary expenses. Then we can have long discussions about PR and about what is in the Jenkins report, or something of that sort, which could be agreed on either in a referendum or by the next Government. I do not think that you could immediately alter from our present position to PR in the next nine months; I do not think that people would stand for that sort of trick. Again, there will have to be a proper debate, but once we have had it we may arrive at some form of PR. The larger reform of the constitution will take much longer, and we should have a game plan or road map to tell us, over the next 10 years or so, that we shall accomplish a number of things.

On the noble Lord’s Bill and the Iraq war, we should acknowledge that this Government initiated a vote in the House of Commons on the Prime Minister’s power to declare war. I am in the unusual role here of defending this Government, but they have over the past 10 years done a number of very good constitutional things, with the Human Rights Act. The reform of the Supreme Court has been established and a lot of devolution has taken place. It is not as if the Government had been idle about constitutional reform. Your Lordships' House has been reformed, maybe not fully but partially. There have been good reforms. Because people do not like what happened in the Iraq war, they miss the point that there was still a constitutional innovation. You cannot say, “Get me a constitutional innovation that will not only give the House of Commons the power to decide about the war but get us a war that everybody would like”. That is not possible. No electoral or

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constitutional system will guarantee you both. What you can have is the House of Commons giving the Prime Minister the power to launch the war; you cannot actually guarantee that a Prime Minister’s evidence or statements will always, in retrospect, be found to be as desirable as people would like. Hindsight is a great thing, but you cannot constitutionally guarantee it beforehand.

Finally, we have an opportunity to get people’s attention. While we have that attention, it is our task to have a road map. If we have to consult citizens, let us not have an Assembly, but use the internet and let everyone contribute to the constitution debate. If we do not want Parliament to do so, some independent think tank such as the Constitution Unit can be put in charge of gathering people’s opinion. If we can do that we will have people participating in a process in the broadest manner possible.

1.20 pm

Lord Lester of Herne Hill: My Lords, even my sternest critics would agree that I am in favour of constitutional reform. Having said that, I agree with those noble Lords spiritual and temporal who have said today:

“Fools rush in where angels fear to tread”.

I agree with all those who have said one way or another that constitutional reform of a structural and institutional kind cannot be rushed and therefore needs to be approached in a different way from short-term measures, such as those for dealing with MPs’ expenses.

I do not agree with those noble Lords—the noble Lord, Lord Armstrong, will forgive me for mentioning him in particular—who believe that the English constitution as laid down by the Victorians and extolled by Bagehot and Dicey is a thing of great wonderment that does not require further serious reform. We often forget what a peculiar constitution we have. In his new book The New British Constitution, to which the right reverend Prelate referred—I believe it to be a first-class answer to some of the points that the noble Lord, Lord Norton of Louth, made about the lack of coherent principles—Vernon Bogdanor points out what a peculiar constitution we have. Why is it so peculiar? Because in the democratic world we are the only country, with the possible exception of New Zealand, that has an absolute and sovereign Parliament, according to the dogma of parliamentary supremacy.

Whenever I ask law students about the legal source for that doctrine, they never know the answer. I will not embarrass anyone today by asking the question. We are in a peculiar position because the only constraints on the absolute sovereign Parliament are the constraints that come from membership of the European Union and adherence to the European Convention on Human Rights. In other words, European standards have to come in to rescue inadequacies in our constitution in restraining the abuses of power by Parliament as well as by the Executive.

The only branch of government that has seriously addressed that problem in my lifetime has been the judicial branch, which since 1976, by developing common-law principles of public law, administrative law and judicial review, has made great strides—owing to the

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laziness of the other two branches of government in dealing with this—to restrain the misuse of public powers. I commend the judicial branch for what it has done in the absence of proper work, as I say, either by the executive branch or by the legislative branch, in codifying principles of public law.

The tide for constitutional reforms undertaken by this Government came in in 1997. Tony Blair’s new Labour Government, with their large majority—too large a majority, as it turned out—had debated and negotiated carefully in opposition with the Liberal Democrats under the Cook-Maclennan framework, in which my noble friends Lord McNally and Lord Maclennan and I took part, a package of reforms, including the Human Rights Act, the Freedom of Information Act, removing the hereditary element from the House of Lords, moving towards what became the Constitutional Reform Act on the appointment of judges, and so on. That was worked out in opposition, in a sensible way, and it was translated in the main into reforms while the tide for reform was in.

However, it was a botched job in some important respects. The way in which the removal of the hereditary element was handled, with a secret deal that broke promises to the Liberal Democrats, was not satisfactory. It has retained the anomaly of hereditary Peers who are here only because that was the pragmatic thing to do in getting through that reform. I say nothing about whether we should have an elected or partially elected Chamber; I am simply talking about removing the hereditary element.

On the Freedom of Information Act, as my noble friend Lord McNally in particular will remember, we were put under huge pressure. We were told, just before an election, that we would lose the Act altogether if we did not agree to unnecessary exceptions and qualifications being written into it. We caved in and were much criticised for being pragmatic in getting that Bill through. In terms of devolution, we have moved towards a quasi-federal system of asymmetrical government in which I think there are still problems.

The prerogative is another odd thing about our constitution. Ministers are clothed in monarchical powers. Their prerogative powers—their executive powers—derived not from Parliament but from the medieval monarch and, now, from the Queen. That does not happen in any other country with which I am familiar. All Commonwealth countries, common-law countries and European civil law countries have codified systems that make their legislature or their constitution the source of the powers exercised by Ministers.

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