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Constitutional Renewal

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 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. The prerogative has some undesirable effects. The first of these, which I mention because no one else will have heard of it except possibly the Minister, is the Ram doctrine, propounded by Sir Granville Ram—a great Trollopian name—after the Second World War. The doctrine is that Ministers and government departments can do whatever they like as though they are private persons unless Parliament has said to the contrary through legislation. I came across this when I discovered that the Cabinet Office, some years ago, was suggesting that, on the basis of the Ram doctrine, data could be transmitted from one department to the other with no legislative or other standards whatever. Just as I could pass something to my noble friend Lord Maclennan as one private person to another, so government departments could pass information affecting the subject in the same way. It is absurd that the Ram doctrine was seriously being used in the Cabinet Office and beyond. Another, much more scandalous example was what happened to the Chagos islanders—those dispossessed people who were removed from their homeland and dumped in the Seychelles and Mauritius on the theory that the Queen can do no wrong in the colonies. When the courts said that that was a gross abuse of power, Mr Blair, the Prime Minister, and Mr Straw, the Foreign Secretary, did not clothe themselves in primary legislation but overturned the courts’ judgments using prerogative powers. In my view, that was a disgrace, but a disgrace about which our constitution had nothing to say. Regulating the prerogative and transferring the source of prerogative powers, which we need, from the monarch to Parliament are a necessary part of constitutional reform. All that was when the tide came in, as I said, in 1997. I commend the Government for the way in which they carried out what constitutional reforms they did. When Gordon Brown became Prime Minister, the tide came in again briefly. It looked as though on the basis of the Governance of Britain Green Paper we could have a second and more profound reform. I willingly accepted becoming the unpaid independent adviser to Mr Straw and Mr Wills in the Ministry of Justice because I really thought that there was the political will to carry out those reforms. I was most impressed by the high standard of work done by the civil servants engaged on the constitutional renewal Bill. However, I was disappointed that, whenever Ministers had to make choices, they always chose the lowest common denominator of agreement across departments, never the highest common factor. Therefore, when I left the department—resigning on the basis that I was serving no value to it and wasting its time, because we did not really agree—there was a constitutional renewal Bill that could have been published the next day. That was eight months ago. The Bill would have been weak, but it could have been published and I do not know why it has not been since. I have heard no good reason. I am sorry that it has not happened, particularly given the Civil Service reform that the Bill contains. Noble Lords such as the noble Lord, Lord Sheldon, and I have been pressing for that for years and years. The Cabinet Secretary did an admirable job, in my view, in producing perfectly sensible arrangements within the Bill. It still has not happened, the Bill still has not been published and we are getting near the Recess. I simply do not understand why that is so. On the human rights side, I have some slightly unfriendly words about the position of the Opposition. So far as the Government are concerned, we have the Human Rights Act, for which I campaigned. It is a good thing. It has worked with judges and lawyers, but it has not worked with the wider public, partly because it has been blamed by Ministers for their own default, partly because the media do not like a right of privacy that they think comes from the Human Rights Act and partly because the Act—unlike a normal, constitutional Bill of Rights and freedoms—derives from a European treaty, not a domestic legal order. We ask a very odd question in this country. In the rest of the democratic world, people say, "Does this misuse of power violate the charter of rights and freedoms?". We do not. We say, "Does it violate a convention right?". In looking at the abuse of powers, the ordinary woman or man in the street finds that an unattractive question to be answered. The Government were mistaken in trying to deal with the unpopularity of the Human Rights Act by cobbling together another suggestion side by side—a Bill of Rights and responsibilities that created no new rights and no new responsibilities. I regard that as farcical and am sorry that so much time was wasted on it. I am afraid that I also find the statements made again and again by David Cameron—that he will tear up the Human Rights Act if and when the Conservatives win power—to be a dismal response. I believe that the Irish will vote yes to the Lisbon treaty. If the Conservatives then win, they will be looking for bones to throw to their Eurosceptic right-wing and they might believe that tearing up the Human Rights Act is politically attractive. That really would be a stupid thing to do. Why? Because we need effective remedies in this country, in British courts, for violations of our fundamental rights and freedoms. The more you tamper with the Human Rights Act as its stands and weaken the remedies that British courts can provide, the more you lead to our having to go to Strasbourg and a European Court of Human Rights that already has 100,000 pending cases. I do not believe that politically, legally or sensibly it is other than constitutionally illiterate—to use Ken Clarke’s moderate language—to think of tearing up the Human Rights Act and weakening the effective remedies that we already have. Those remedies are quite moderate. They do not allow the courts to strike down Acts of Parliament; they allow the Executive a breathing space in giving effect to the judgments. We have won great respect in the European Court of Human Rights through the jurisprudence fashioned by our courts, which makes the British legal influence in Strasbourg much stronger now than that of any other European state. I can only hope that sensible people such as Dominic Grieve QC MP, who will have responsibility for this if the Conservatives win power, will drop the idea of scrapping the Human Rights Act and weakening our effective remedies. I hope that they will instead move toward a charter of rights and freedoms, protecting fundamental law and the citizen against the misuse of power. None of that can, I am afraid, be done by this Government; the tide has now gone out for that kind of thing. We will have to hope that, after the next election, we will get towards the written constitution that other countries have and we deserve.