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Coalition Government

My Lords, let me join others in congratulating the noble Baroness, Lady Symons of Vernham Dean, on introducing this timely debate. I declare my membership of the Select Committee on the Constitution, but today, of course, I speak in my personal capacity and not on behalf of the committee, although I shall draw attention to several of the committee’s reports in recent years when it has discussed the constitution. The first is the 14th Report of the 2003-04 Session entitled Parliament and the Legislative Process. That report noted a concern that a growth in the volume of legislation was not being matched by Parliament’s capacity to scrutinise it effectively. It therefore put forward a number of recommendations aimed at improving matters, including a move to publish more Bills in draft, far greater pre-legislative scrutiny and an emphasis on evidence-taking and consultation. It is a self-evident truth that the scrutiny of legislation is fundamental to the work of Parliament and subjecting legislation to rigorous scrutiny is an essential responsibility of both Houses of Parliament if bad law is to be avoided and the technical quality of legislation tested. It is also important that those affected by, or with knowledge of, or having an interest in, proposed legislation should have an opportunity to make their voice heard while legislation is being considered, rather than after it has taken effect. Parliament’s influence is usually greater before a Bill has been introduced because Ministers will be more likely to accept change when a Bill is not in a settled state and the Minister is not at the Dispatch Box defending his position. That is why pre-legislative scrutiny is so important and why so many who gave evidence before the committee, including many members of today’s coalition, some of whom are speaking in the debate today, were keen to emphasise its importance. The committee was aware that not all measures of high political contention have been published in draft in the past and subject to pre-legislative scrutiny, but it did not necessarily regard this as a category for exclusion. As Dr Meg Russell of the Constitution Unit put it, such Bills, "““are arguably the bills that most need proper scrutiny””." The committee stated, in paragraph 30: "““However committed a Government may be to a measure—and however opposed other political parties may be—that does not necessarily mean that the technical elements of its provisions cannot be improved through early debate and objective scrutiny””." These points are of even greater importance in the case of Bills which seek to change the constitution. In my view, such Bills should always be the subject of full consultation and pre-legislative scrutiny; subsequent committee reports have continually emphasised this, no matter which party is in power. For example, in the 17th report of the Session 08-09 on the Parliamentary Standards Bill, the committee said, "““The way policy-making has been rushed, the lack of public consultation and the limited opportunities given to Parliament to scrutinise the bill all, in our view, fail to meet the minimum requirements of constitutional acceptability””." In the 11th report of 2009-10 on the Constitutional Reform and Governance Bill the committee said, "““The House may take the view that the consequence of the Government tabling so many late amendments to the Bill is that the parliamentary consideration given in both Houses to the important aspects of constitutional reform which this Bill is likely to effect has been substantially curtailed. ... This is no way to undertake the task of constitutional reform””." When it came to a consideration of the Constitutional Reform Bill—which I remember very well because I was standing next to the bomb when it exploded—and the Constitutional Reform and Governance Bill, there were many, now to be found on the coalition Benches, who protested that insufficient scrutiny had been given to the Bill’s contents and that in the case of the Constitutional Reform Bill, it should be directed to a Select Committee. A delay of three months, they said, was nothing if it meant that the Bill was got right. The present Leader of the House, the noble Lord, Lord Strathclyde, thought the Bill could be a candidate for carry over, with the delay that that entailed. So it is in this context that I come to consider the coalition Government’s series of piecemeal Bills for constitutional reform. This is not the place for a detailed consideration of the issues that each raises but it should be noted that they are the product of a coalition agreement produced at speed over a number of days. They clearly represent both the cement to hold the coalition together and the desire to show a determination to get a legislative programme under way with speed and vigour—to hit the ground running, as the Prime Minister so often puts it. Each has been criticised, however, not only by the House of Lords Select Committee on the Constitution but by the House of Commons Political and Constitutional Reform Committee. The Commons committee regretted that the AV Bill was, "““being pushed through Parliament in a manner that limits both legislative and external scrutiny of its impact, and may consequently undermine the Government's intention to restore the public's faith in Parliament””." The committee said that for primarily political reasons the Bill links two sets of provisions which could have been considered separately and, "““does not include proposals on reforming the House of Lords which would have allowed the composition of Parliament to be developed in the round.””." The House of Lords Select Committee regarded it, "““as a matter of principle that proposals for major constitutional reform should be subject to prior public consultation and pre-legislative scrutiny. We recognise that there may exceptionally be good reasons for departing from this principle, but the perils of doing so are well illustrated in the present Bill. The case for proceeding rapidly with one Part of this Bill is far stronger than for the other””." Both committees also censure the Fixed-Term Parliaments Bill in a similar way in respect of the speed, the lack of consultation and pre-legislative scrutiny. The report in the House of Commons said: "““It is acutely disappointing to us that we have needed to criticise the Government for the process it has chosen to adopt in the passage of its first two constitutional Bills, the other being the Parliamentary Voting System and Constituencies Bill. While we understand the political impetus for making swift progress in this area, bills of such legal and constitutional sensitivity should be published in draft for full pre-legislative scrutiny, rather than proceeded with in haste. We intend to inquire very soon, in co-operation with the Procedure Committee if possible, into how proper pre-legislative scrutiny of such Bills can best be ensured in future, whether through the House's Standing Orders or otherwise””." The reasons for pre-legislative scrutiny are of course obvious. Taking evidence and soundings allow arguments to be tested and developed. Issues which seem to be based on arbitrary opinions can be explored and explained. Consensus can be reached and alternatives discovered. In short, argument can be reduced to a smaller number of points and time can be saved. In this context, the procedures of each House are complementary, one to another. In the other place, as everyone knows, Programme Motions and guillotines mean that scrutiny is curtailed. In this House, the Government have no formal control over parliamentary time, and all amendments tabled must be called and debated. That is precisely what has been applauded by many Members of the other House. In the other place, Report and Third Reading are almost always taken on the same day. In the Lords, Report and Third Reading are nearly always taken on separate days, and amendments may be tabled and considered at Third Reading. Any suggestion that the procedures of this House should be adapted to model the other place would point a dagger at proper scrutiny, and yesterday’s debate highlighted the very real and present danger. I conclude by saying that it should be axiomatic that every constitutional Bill be published in draft, consulted upon and subjected to pre-legislative scrutiny, with evidence being called and tested. Only the most exceptional circumstances should dictate otherwise, and there is none to justify the two Bills now before this House. In my view, gluing the coalition together for short-term political convenience and an early start on legislative programmes are not exceptional reasons. For the reasons I have given, many of the problems of the past few days could have been avoided if this process had been followed, and the issues hammered out by testing and looking at evidence to prove the propositions being put forward. By definition, it is unlikely that coalitions will produce joint policies which will have been the subject of identical but separate manifesto commitments. Those policies will not have received public endorsement. On the contrary, they will be a mix and match to bind the parties together in their desire to push forward with a legislative programme to seek to justify the creation of the coalition. That is perfectly understandable, but it is not an excuse and does not justify the promotion of constitutional Bills and claiming for them a special status that exempts them from proper consultation and scrutiny. To do otherwise would lead to all coalitions wanting to adopt a similar course, thereby doing enormous damage to Parliament and its task of full and proper scrutiny.