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I support the AV proposal. I do not think it will work out quite as the noble Lord, Lord Henley, thinks. The geographical dispersion of the Liberal Democrat vote has changed in the last 50 years. We are, perhaps, looking at a world of the past if we suppose that there will be one result or another. The extra democratic dimension would be self-evident to people in a pub in Burton-on-Trent-namely, that someone has to get 50 per cent. That is game, set and match. I might have my hesitations about the logic if I thought it would damage the Labour Party, but I do not think it would. The proposal should be supported on its merits.

I will say a word on taxation and then conclude. I very much support the general idea but, having regard to my knowledge of the case of my noble friend Lord Grenfell, I am surprised that-to use a cliché-in this day and age European residence is somehow the same as residence in Belize or the Virgin Islands. In the next 20 or 30 years there will be more and more people in the world who may spend part of their year in Dusseldorf or some place. Certainly, this would not work if you lived in Luxembourg, Holland or Belgium. It does not work in the world of industry, or even that of trade unions. My great friend John Monks, the general secretary of the TUC for 10 years, is now general secretary of the European Trade Union Confederation. I imagine that if he came into this House he would, at the same time, leave his job in Brussels. People accumulate commitments around Europe a lot more than they did, and we could ring-fence the European Union in some way in seeing how this would be implemented.

5.45 pm

Lord Denham: My Lords, I am going to limit what I say to Part 5 of the Bill, "The House of Lords", and, of that, only Section 67 which deals with the elected hereditary Peers and their replacement. Having looked at that part of the Bill itself, I then took up the

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Explanatory Notes to see what justification was given for the breach of one of the most solemn undertakings given by any Government over my 60 years in Parliament. I looked in vain, but that was hardly surprising. Such a justification does not exist.

When I first heard from my noble friend the then Leader of the Opposition about what was subsequently, though mistakenly, to be called the Weatherill amendment, I had severe doubts as to whether one should on any terms allow a Bill of such constitutional importance through in a hurry, but I subsequently changed my mind, because it would give at least a handful of hereditary Peers some say in what the shape of the House that they and their confreres had all served should be.

In quoting the excerpts from the Second Reading speech of the noble and learned Lord, Lord Irvine of Lairg, I should like to assure him that I and, I think, my noble friends regard his conduct throughout the passage of that Bill, and ever since, as impeccable. We could only wish that his own party had treated him more recently in the manner that he was entitled to expect.

The noble Lord, Lord Steel, is wrong. The deal was a deal in its entirety. To try to pretend otherwise is to deceive himself. He will not deceive others. Let me read those words together with the rest.

The noble and learned Lord, Lord Irvine, said:

"The amendment reflects a compromise negotiated between Privy Councillors on Privy Council terms and binding in honour on all those who have come to give it their assent. Like all compromises it does not give complete satisfaction to anyone. That is the nature of compromise".-[Official Report, 30/3/99; col. 207.]

Lord Steel of Aikwood: I think that the noble Lord misunderstood the point I was making. The quotation he gives is quite correct, but it was at the Second Reading of the Bill. The by-elections were not there. They were not part of the undertaking. They were not part of the negotiations.

Lord Denham: My Lords, the negotiations went on throughout the course of the Bill. I was around at the time. I am so sorry; the noble Lord, Lord Steel, may wish to confuse himself like this, but it just simply is not true. This was an honourable meeting between parties to try and work out a way to get the Bill through in the best possible way and in the most reasonable time.

Let me continue:

"Let me attempt to explain its rationale. We have always intended a stage two reform to a reformed upper House. Others questioned our genuineness. Although I know as well as anyone the honesty and firmness of our intention, I was not offended by those who claimed to perceive a risk that removal of the hereditaries might prove to be the only reform to take place. All who have assented to this compromise would justify it in their own ways, but I believe what it comes to is the following ... a compromise in these terms would guarantee that stage two would take place, because the Government with their great popular majority and their manifesto pledge would not tolerate 10 per cent. of the hereditary peerage remaining for long. But the 10 per cent. will go only when stage two has taken place. So it is a guarantee that it will take place ... to insist on fulfilling a manifesto pledge by one step, not two, would bring down the curtain unceremoniously on the whole of the hereditary peerage, many of whom, and whose forebears, have given so much to this House and to public life. The compromise will enable the elected 75 to participate in our counsels and to vote as the stage two plans are developed and

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debated. It will allow those who do not stand, or who are not elected, to depart with dignity, not querulously, and without rancour".-[Official Report, 30/3/99; cols 207-8.]

If anyone would suggest that the passage of time can release a Government from such obligations, let me say this: it is not the fault of your Lordships' House that, once the Act was on the statute book, no further effective steps toward stage two of reform took place. It was entirely due to the inaction of the Government and to no one else. It is my belief that once they got rid of the hereditary Peers they lost interest in your Lordships and set their sights on other things such as wrecking the judiciary and bringing another place into the 21st century.

Be that as it may, the Royal Commission, chaired by my noble friend Lord Wakeham, which had been running in parallel with the Bill itself, reported by the end of December 1999. This was to have been followed as soon as may be by a Joint Committee of both Houses of Parliament which was to have provided a sort of committee stage to the Wakeham report. This was put off and put off again until, in September 2001, it was announced by the then Leader of this House, the late Lord Williams of Mostyn, that it would be dropped altogether. This in itself was a breach of an undertaking. I came down overnight from Scotland to remonstrate with Lord Williams. He saw me with his invariable charm and courtesy, and gave me a good three-quarters of an hour but he was adamant. I warned him that the whole idea could go cold and lose momentum if it was dropped then-and how right I was proved to be.

Finally, the Government had no option but to reincarnate the Joint Committee, which reported on 4 February 2003 with the now infamous list of options: all elected; all appointed; 80:20; 20:80; 60:40; 40:60; and 50:50. This had the equally infamous result that Members of another place voted down the whole lot of them. It took that great man Robin Cook, who was Leader of the House at the time, to contribute the panegyric,

"We should go home and sleep on this interesting position. That is the most sensible thing that anyone can say in the circumstances. As the right hon. Gentleman knows, the next stage in the process is for the Joint Committee to consider the votes in both Houses. Heaven help the members of the Committee".-[Official Report, Commons, 4/2/03; col. 243.]

I end by repeating just one of the noble and learned Lord's Second Reading sentences again.

I hope your Lordships who are privy counsellors will already know but those of your Lordships who are not will realise just exactly what that means-

At a time when we are all trying to restore the old moral value to Parliament, I think your Lordships would realise that Her Majesty's Government renege on these words at their peril.

5.54 pm

Lord Maclennan of Rogart: My Lords, the Prime Minister recently indicated that he was personally in favour of a written constitution. I am bound to say

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that I think he is right. The arguments for that are greatly strengthened by the piecemeal approach to reform that we have observed over the past 13 years. I was very struck by what the right reverend Prelate said earlier about the mode of making these changes to our system. It is correct that they are not likely to deal with the problem of trust, on which the Minister laid great emphasis in his opening remarks, if they do not include at least a proper dialogue with the public.

In the brief time that I propose to speak, I want to say that I very much regret that issues of constitutional reform have become so divisive between the political parties, between the Houses of Parliament and between Government and Back-Benchers. I refer particularly to the way that the Government have treated the Public Administration Select Committee chaired by Tony Wright, which has produced most thoughtful reports on how change might be made in a progressive fashion. I believe that if we are to have a constitution which is apt to deal with the extreme complexity of government, we have to recognise that it requires deliberation, dialogue and partisan considerations to be vented, certainly, but also to be put firmly in their place and made clear.

It is true that for a long time my party has considered that we in this country cannot hope to improve the quality of government or to increase the delivery of what the public have voted for and expect to see without significant changes in the way that Governments do business. It seems to me that in this Bill the Government have rather lost sight of the purpose of constitutional reform. It is about improving the quality of government and making it more accountable and responsive to the people who make up our democracy.

In a speech with which I sympathised at the beginning of this debate, the Minister, the noble Lord, Lord Bach, emphasised heavily the nature of the circumstances in which we are considering these matters: the loss of trust of the public. It has to be said that I doubt whether bringing forward such measures at this time will of itself contribute to a restoration of trust, and that must be very much regretted. It has obviously been a scramble. When I was appointed to the Joint Committee nearly three years ago to consider the Constitutional Renewal Bill, it never occurred to me that we would have to wait so long to consider in detail in Committees of both this House and another place the most central issues in that Bill relating to the Civil Service. It might have been wise if at that time the Government had recognised the degree of support that there was for that part of the Bill-now Part 1 of this omnibus Bill that we are considering-and had treated it as of sufficient importance, and having gained sufficient consensus, to merit enactment. There are matters before us in this Bill on the Civil Service which are not entirely satisfactory but which I think could easily have been taken out or corrected if there had been a proper opportunity to consider that part of the Bill with deliberation. The Constitution Committee of this House has drawn attention to the report and suggestions of the Public Administration Select Committee on, for example, the powers of the Civil Service Commission. It pointed to the desirability of the Civil

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Service Commission having a power to investigate matters affecting its role at its discretion. That does not appear in the Bill, and it clearly should.

The Bill provides for the appointment of Civil Service Commissioners on merit, but it does not say anything about promotion, and that is clearly an integral question. It ought to have been spelled out in statute when we are seeking to put the Civil Service on a statutory basis. Another example to which the committee drew attention was the Public Administration Select Committee's proposal that senior appointments from outside the Diplomatic Service should be limited in number to three. That would certainly differentiate us from our friends in the United States. It got great backing and considerable understanding. These are matters that I do not regard as make-or-break in the Civil Service part of the Bill, but they are important and they should have been considered in the regular way.

We have to recognise the disadvantages of doing constitutional reform in such a hurry. I heard the intervention from the former Speaker of another place. She asked whether a constitutional Bill has been handled in this way in the wash-up. I think there ought to be a good deal of the Bill in the wash-up because the Civil Service part of it makes a great deal of sense and there are parts that deal with the crises of the moment that ought to be recognised and enacted. They could be called tidying up operations. For some time, my noble friend Lord Steel has put forward arguments about how this House ought to operate prior to the wholesale composition reform that merit being enacted.

However, I do not think it greatly enhances trust to bring forward at this stage a proposal to have a referendum on the alternative vote. I am in favour of having a referendum, but I do not think this is the right time or the right way to do it. The right time would have been in the early years of this Labour Government, when there was a firm proposal in the manifestos of my party and the Labour Party to have a referendum on an alternative system of voting, which was to be worked on by the committee chaired by the late Lord Jenkins. That report was for a variation on the alternative vote, which would have made it more proportional. A huge opportunity was lost when that recommendation was not put to the people at least 10 years ago.

We are bound to say that Governments in this country tend to reform the constitution in a piecemeal fashion, but the pace of reform has increased under this Government, and I want to pay tribute to them for that. However, we now require serious deliberation on how to express the principles that should underlie our modern democracy and how to deal with the out-of-date prerogative powers not by tinkering with resolutions on the war powers alone but by looking at whether it is satisfactory that the Executive's decisions should be dressed up in this 18th century constitutional garb which is simply unsuitable.

I appeal to the Government through the Minister to recognise that we will have to look at these issues-not just the issues in the Bill but the issues that we all recognise need to be addressed-in a more coherent, deliberative way and involve the public and all parties in the discussion in the full expectation that the principles

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that the Prime Minister backed when he published his Green Paper in July 2007 are translated into legislation that delivers what he proposed we need.

6.05 pm

Lord Pannick: In 1993, the noble Lord, Lord Adonis, wrote an excellent book, Making Aristocracy Work.It was about the proceedings of this House in the years 1884 to 1914. The book refers to a memorandum written in 1904 by the Earl of Selborne to Cabinet colleagues complaining that proceedings at the end of every Session of Parliament were damaging the reputation of this House. The Earl of Selborne wrote:

"The House of Commons send up in the closing hours of the session a batch of important Bills which the House of Lords has to dispose of post-haste. As a consequence, the proceedings are undignified and the work is badly done. It is not an abuse of language to apply the words 'farce' and 'scandal' to what takes place".

Since 1904, this House has become a professional, expert revising Chamber for draft legislation. We now aim to promote the highest standards of transparency, accountability and scrutiny, and we criticise ourselves, perhaps more than we are criticised by others, when we fail to meet those standards. Indeed, in opening this debate, the Minister emphasised the importance of transparency and accountability. It is therefore extraordinary-I use the word used by the Constitution Committee, of which I am a member-that in relation to this important constitutional Bill the Government should be contemplating the use of a wash-up procedure that is the very antithesis of the high standards of scrutiny, transparency and accountability that we must attain, and which we repeatedly tell ourselves we must attain, if we are to secure the confidence of the people of this country in our proceedings.

I do not impugn the good faith of the usual channels, but "the usual channels" is no more than a euphemism for a complete lack of transparency and accountability. The usual channels are no substitute for discussion and debate on the Floor of this House to examine the content and implications of clauses in a Bill and to consider possible improvements to them. That is true however important or attractive parts of a Bill appear to be.

In opening this debate, the Minister asked, perhaps unwisely, a rhetorical question-why now?-concerning one aspect of the Bill. The answer is surely self-evident: the Government now see constitutional reform as a vote winner, rightly or wrongly, and the need for proper, mature consideration of this Bill's provisions must for them take second place.

One could give many examples in the Bill of provisions that look attractive but need detailed consideration. For example, Part 12, on public records, is relatively uncontroversial, but one sees in Clause 86 that it is linked to Schedule 15, which would amend the Freedom of Information Act to create an exemption for communications by public bodies with the heir to the throne. This raises difficult and important issues. Is it really appropriate that the heir to the throne should be able to write to public bodies, with the purpose and the effect of influencing their decisions, and have such correspondence concealed from the public? If such an exemption is appropriate, it needs to be carefully considered and confined.



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It is regrettable that there will be no opportunity to seek to add to the Bill much needed other constitutional reform. If the Bill had come to this House in good time and had had a Committee stage, I had intended-with the support, I know, of many noble and noble and learned Lords-to table an amendment raising the retirement age for all Supreme Court justices from 70 to 75, a reform that has the support of the President of the Supreme Court, the noble and learned Lord, Lord Phillips of Worth Matravers. It is absurd that Supreme Court justices, who inevitably take time to rise up to the highest levels of the judiciary, are required-as in the case of the noble and learned Lord, Lord Collins of Mapesbury, appointed only last year-to retire within two years of appointment. However, such matters will, I am afraid, have to wait for the next Parliament.

I hope that the Minister and the Government will have received and understood the message from all parts of the House in this debate agreeing in substance with the view of your Lordships' Constitution Committee that the Bill is simply not suitable for a wash-up procedure. The irony, of course, is that the Government's treatment of this constitutional reform Bill as a political weapon-because that is what it is-to be manipulated from time to time for partisan purposes, irrespective of basic constitutional proprieties, demonstrates with clarity the urgent need for fundamental reform of the machinery of government in this country.

6.14 pm

Lord Grenfell: My Lords, I declare an interest in that Clauses 59 and 60 of the Bill affect me personally. That is the first and only reference that I shall make to those two clauses in my intervention this evening and in any further stages of the Bill, if there are to be any.

This is not an easy speech for me to make, coming, as I do, from these Benches. I have not always been able to agree with my Front Bench and I am afraid that on this occasion I am not able to agree on quite a number of important issues. I came to the House of Lords 32 years ago. In fact, the noble Lord, Lord Henley, and I, if I remember correctly, took our seats on the same afternoon. In all that time I have never wavered in my belief that, as a Member of a revising Chamber, on some issues, particularly matters of constitutional reform, you have to say what you believe regardless of party affiliation and other considerations. That is what I propose to do.

The Bill contains some very sensible provisions, which, given its elephantine gestation period, is the least that one could expect of it, and I am sure that following proper scrutiny and debate I could support their translation into law. That said, I share entirely the view expressed in the wonderful, short, succinctly worded paragraph 47 that concludes the Constitution Committee's report. It says:

"This is no way to undertake the task of constitutional reform".

The members appear to have concluded unanimously that this House is being denied the opportunity to scrutinise properly the Bill's provisions. I have read carefully the Hansard report of the Committee stage in another place and conclude that there, too, far too little time was given for proper consideration of many of its provisions; indeed, some were not considered at all.



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The Government can be justly proud of many of the constitutional reforms that they have put through over the past 13 years and I have been very happy to support in this Chamber their passage through Parliament. What a pity, then, that this quiet revolution, as my right honourable friend the Secretary of State for Justice has called it, should now be sullied, not by the nature of the provisions of the Bill but by the wholly inappropriate process by which Parliament, in particular this House, is asked to legislate them.

As the report of the noble Lord, Lord Goodlad, notes-it is worth repeating this-the Bill contained 56 clauses and nine schedules when it was first introduced. By the time it arrived here, it contained 95 clauses and 15 schedules, many of the new provisions being added very late in the legislative process. My right honourable friend the Leader of the House in another place informed the House:

"If the Bill cannot find its way through the Lords, we will make sure at the wash-up that the provisions that the public want get through".-[Official Report, Commons, 4/3/10; col. 1019.]

We must assume that, in accordance with convention, what do get through will be the provisions that are not contested-that is the tradition-but one is still entitled to ask: what is it that we are told the public want? We shall learn that, I suppose, when the usual channels emerge from their closed-door negotiations and tell us what will and will not become law. It is an odd procedure, but one which is found necessary and has in the past proved generally useful. However, I echo the spirit of the question put by the noble Baroness, Lady Boothroyd, which was so eloquently followed up by the noble Lord, Lord Pannick: this is not, in my opinion, a procedure to be applied to constitutional reform.

I am not these days a betting man-I gave up serious betting at about the age of 11-but I would be ready to wager a fiver today that, to take but one example, Part 2 of the Bill, which deals with the ratification of treaties, is not high on the list of provisions that the public want to see got through before the general election. I take this as one example of the several that could be chosen of what we are likely to lose and have no chance of fully scrutinising anyway. This is highly regrettable because the provisions on treaty ratification in the Bill are an overdue step-albeit far too timid-towards better parliamentary control.


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