CONSTITUTION COMMITTEE The Process of Constitutional Change Oral Evidence and Written Evidence Contents Richard Gordon QC and Professor Sir John Baker ...... 2 Oral evidence, 23 March 2011, QQ 1-47 ...... 2 Written evidence from Professor Sir John Baker, University of Cambridge (CRP 14) ...... 22 Written evidence from Richard Gordon QC (CRP 15) ...... 24 Professor Jeffrey Jowell and Professor David Feldman ...... 32 Written evidence by Professor Jeffrey Jowell QC (CRP 2) ...... 32 Oral evidence, 30 March 2011, QQ 48-78 ...... 38 Written evidence by Professor David Feldman, University of Cambridge (CRP 10) ...... 54 Professor Tony Wright and David Howarth ...... 69 Written evidence by David Howarth, University of Cambridge (CRP 3) ...... 69 Oral evidence, 6 April 2011, QQ 79-106 ...... 77 Dr Alexandra Kelso and Professor Matthew Flinders ...... 93 Written evidence by Professor Matthew Flinders, University of Sheffield (CRP 1) ...... 93 Written evidence by Dr Alexandra Kelso, University of Southampton (CRP8)...... 96 Oral evidence, 27 April 2011, QQ 107-132 ...... 98 Professor Graham Smith and Professor Stephen Coleman ...... 114 Oral evidence, 4 May 2011, QQ 133-175...... 114 Rt Hon Nick Clegg MP ...... 132 Oral evidence, 18 May 2011, QQ 176-239 ...... 132

Richard Gordon QC and Professor Sir John Baker

Richard Gordon QC and Professor Sir John Baker Oral evidence, 23 March 2011, QQ 1-47

Evidence Session No. 1 Heard in Public

Members present

Baroness Jay of Paddington (Chairman) Lord Crickhowell Lord Goldsmith Lord Hart of Chilton Lord Irvine of Lairg Lord Norton of Louth Lord Powell of Bayswater Lord Rennard Lord Renton of Mount Harry Lord Rodgers of Quarry Bank Lord Shaw of Northstead

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Examination of Witnesses

Witnesses: Richard Gordon QC, [Brick Court Chambers], and Professor Sir John

Baker, [Downing Professor of the Laws of England, University of Cambridge].

Q1 The Chairman: Good morning. Thank you very much to both of you for coming and taking part in this new inquiry that we are undertaking. We are, as I said in the corridor, sound recording this, so I would be grateful when you speak if you would not mind identifying yourselves for the record. We will not be, as it were, proceeding in a particularly formal way round the table. We have found that a discussion is very useful in these areas of evidence. I know you have both had the opportunity to look at the areas that we are concerned with, so I wonder if the best way to start is to ask you whether either of you would like to make a brief opening statement to the Committee? Richard Gordon: Well, I think we probably both would. My name is Richard Gordon QC. Very briefly, it seems to me that there are, in the context of improving the machinery for constitutional reform, several different models. One is obviously, at the very top of the pyramid, the idea of a written constitution. Below that, perhaps, is the idea of some form of new constitutional settlement. Both of those options depend probably upon constitutional reform being seen more as an event than a process. Then the last two models are perhaps simply continuing with the present programme of reform or a possible constitutional reform framework position statement.

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None of these options are mutually exclusive. The last two options obviously see constitutional reform as a process rather than an event, and I have to say I favour a constitutional reform statement of all those options. Professor Sir John Baker: Thank you. I thought it might be helpful just to try to explain my guiding philosophy before giving evidence as it might colour what I am going to say. It seems to me that it is a golden principle that a constitution, any constitution, should stand above government and should define and limit what a government can do. It is about controlling power. If a government takes over the constitution and manages it by making piecemeal reforms at its own behest, it seems to me we no longer have a constitution, because it is doing precisely what a constitution is supposed to stop. It seems to me that we have started going quite a long way down that route recently, and some of us have become rather concerned about it. I am very pleased that this Committee is looking into the question because it seems to me essential to do something about the problem before any more constitutional reform is carried out, in particular the reform of the House of Lords.

Q2 The Chairman: I am grateful to you for making that opening comment, as you say on your philosophy, Sir John. You will have noticed, I am sure, from the reports that we have issued on a whole series of pieces of what you described as piecemeal constitutional reform, not just within this Government but in the previous Government as well, that we have concerns very much about the process. Our problem has been that when we have tried to identify what we meant by constitutional reform in the context of this country we found it very difficult to put a particular series of issues in what you might describe as a strategic pigeonhole. Professor Sir John Baker: Yes. I suppose there are two ways of tackling this. It relates to some extent to what Richard Gordon was saying: whether one has a general strategy for dealing with all constitutional change or just manages it as an ongoing process. It seems to me it would be far better if some body, either this body or a Royal Commission, were to take a look at the constitution as a whole and decide what needs changing and, (if anything needs changing), how to go about it, because everything is interrelated. Picking off individual pieces is like pulling the kingpin out of a building without asking a structural engineer for his opinion first. Richard Gordon: I tend to think slightly differently. I did, as some members of the Committee may know, attempt to draft a constitution for the United Kingdom and the great difficulty in doing so was that it probably engendered more disagreement about minutiae than agreement over principle. It does seem to me that what is really needed is some form of incremental development that captures the present mood of greater constitutional awareness, hones in on it and persuades Parliament—and by Parliament I really mean central government—of the need for very clear principles to be laid down and for, if not an enforcement mechanism—and it probably would not amount to enforcement for all sorts of constitutional reasons—a mechanism by which independent scrutiny could be achieved, and not only achieved but, and I put this in notional inverted commas, “entrenched”. What I have tried to do, if the Committee is interested in seeing this document when refined, is to draft a possible model for a constitutional reform framework. The Chairman: I am sure we would be extremely interested to see it. We have, as it were, slightly avoided the question of the move to a completely codified or written structure but I am sure we want to come back to that.

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Q3 Lord Norton of Louth: I can see the point you are making, Sir John, which is the distinction between what should be in the constitution and how should it be put in. There is the proper process and deciding actually what it is we are talking about. When this Committee was formed 10 years ago, one of our first inquiries was into the process of constitutional change and we spent a lot of time defining what it was we were talking about: how do we distinguish what is constitutional change from the rest? If we were taking that as our starting point, how would you distinguish what we should be doing from other governmental activity, given as you say, Sir John, that constitutional measures are qualitatively distinctive from legislation that is in the gift of the government? Professor Sir John Baker: Thank you. That is the most difficult question of all, of course, because it is more of a matter of sliding scale than a precise definition. I think it may be that one needs a different definition for different purposes. One might have different safeguards in place to apply to one set of changes, and other more important safeguards for the more major changes; but I think it is possible to identify the kinds of measure that ought to receive different attention—which perhaps require a larger majority in Parliament, more scrutiny, more consensus generally. I have tried to formulate these and I am afraid it cannot be done in one sentence because it would be a meaningless sentence. I came up with a sort of draft Magna Carta of heads of legislative activity that I think ought to require special treatment, perhaps different sorts of different treatment. I am prepared to read those out if it would help. There are, I am afraid, eight of them. The Chairman: Please do. Professor Sir John Baker: Any alteration to the structure and composition of Parliament. Any alteration to the powers of Parliament, or any transfer of power, as by devolution or international treaty, which would in practice be difficult to reverse. Any alteration to the succession to the Crown or the functions of the monarch. Any substantial alteration (I put in the word ‘substantial’ from now on because it is very difficult to draw lines) to the balance of power between Parliament and government, including the conferment of unduly broad or ill- defined powers to legislate by order. Any substantial alteration to the balance of power between central government and local authorities. Any substantial alteration to the establishment and jurisdiction of the courts of law, including any measure that would place the exercise of power beyond the purview of the courts, or which would affect the independence of the judiciary. Any substantial alteration to the establishment of the Church of England. Eighthly, any substantial alteration to the liberties of the subject, including the right to habeas corpus and trial by jury. Even that list does not deal with matters that are currently dealt with under the royal prerogative, such as the abolition of great offices of State, and it may be that those have to be dealt with in some way as well. The Chairman: Lord Powell, did you want to comment on that or was it another matter?

Q4 Lord Powell of Bayswater: I was more coming back to Mr Gordon’s opening statement. I was interested about his comments, both this morning and in his article about a written constitution. I wondered whether he has picked up any signs of, I was going to say a bandwagon but perhaps a chamber-orchestra-wagon in favour of a written constitution, developing some of the comments made by the previous Prime Minister and the Cabinet Manual that has subsequently been developed. Are those steps towards a written constitution?

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Richard Gordon: I have certainly become aware—in fact I spoke at an all-party group on the Cabinet Manual—of a concern that such a document might be justiciable. So, far from it being desired to jump on a constitution bandwagon, my fear is that if one were to go along the written constitution route too overtly at the moment it would probably be counterproductive, which is why I have come to a more moderate position. But may I indicate that in terms of reaching a definition, which is, I think, Lord Norton’s question, my starting point here was to keep the definition very open-ended. So my definition of constitutional reform was any change that affects the operation of the constitution. My definition of the constitution was that it comprises the arrangements by which the UK is governed. You then have to dig deeper and in this framework statement, rather like Sir John—I think I have come down to seven rather than eight—I think I would emphasise that you can have several different types of constitutional change. Only some of them are legislative. Some are, of course, primary legislation, some are secondary legislation. But quite a lot are proposals for practices like the Cabinet Manual, which may have quite potentially significant constitutional effects. Some changes reflect a latent state of constitutional tension, being neither clarified nor properly articulated. Sometimes, for example, statements are made that are quite dangerous. I have in mind, as an example, the hunting case, reflecting a tension between different institutions in society, most notably between the judiciary and Parliament. So my suggested categories were, this is refined more fully in the paper, essentially proposals for laws, rules or other practices—I also have a section dealing with the existing laws— which are presumed to have the potential to have a significant effect on the constitution and therefore subject to the appropriate monitoring and scrutiny procedures. Such proposals include any of these proposals that are likely in a new way (and that is an important aspect I think) to affect, whether by legislative intent or by necessary implication: the constitutional relationship between the executive and Parliament, the executive and the civil service, the executive and the judiciary, or the judiciary and Parliament; the constitutional relationship between the executive and any of the devolved institutions, Parliament and any of the devolved institutions, or the judiciary and any of the devolved institutions; the operational status of political parties in the United Kingdom; the civil liberties of the subject; the structure and powers of local government insofar outside England as they fall within powers reserved to Parliament; or the position of the monarchy and the electoral system. The Chairman: We have had two very comprehensive lists. We had a debate yesterday in the House on the European Union Bill about lists of subjects that are likely to be matters for referendums. I can see that this list approach will always be nibbled at in some way or another.

Q5 Lord Norton of Louth: Mr Gordon, you were using the word “significant”, Sir John it was “substantial”, and I think then the question arises as to who decides—once it is triggered—what is significant and substantial, particularly as you say, Sir John, given the status you attach to matters of constitutional significance relative to the government. If they are to be above government, who would then be the body that would determine whether it is substantial and therefore triggers, say, some extraordinary process for determining the issues? Professor Sir John Baker: Well, of course, that is the main question with any definition: who gets to interpret it. It depends, I suppose, what kind of procedures it is decided to introduce as safeguards. I would imagine a lot of it could be done by this Committee.

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Q6 Lord Norton of Louth: But do you assume the existing process, therefore, is not sufficient? Professor Sir John Baker: I would suggest that for some measures, one ought to contemplate requiring a larger majority on the footing that if you cannot achieve a reasonable level of consensus one should not do anything. There really is no case for pressing forward reforms simply because they happen to be government policy and there is a majority of one. A constitution ought to have a consensus of people generally.

Q7 Lord Crickhowell: Of course I am sympathetic to everything that has been said but we go back, surely, to a fundamental difficulty. Desirable as it may be to have safeguards, desirable as it may be for this Committee to have some greater role than it has, we go back to that relationship between the executive and Parliament. We basically have a constitution at the moment in which the power lies with the government, the elected government, which can get a majority in the House of Commons. None of these things can be achieved under that principle unless the House of Commons is prepared to agree to what is proposed, and by and large, the House of Commons will agree on most issues with the government of the day, unless the government of the day loses the confidence of the House of Commons. So the fundamental question is how we get from the situation where these things are decided by the government of the day with a majority in the House of Commons, to all these desirable situations and possibilities that you described so eloquently. Richard Gordon: I wonder if I might just accept the force of that question, first of all, and say that, from my perspective, that is the problem. One has to find a solution to that problem and the only solution can be one that is incremental, simple and constitutionally effective. The starting point is parliamentary sovereignty, and within parliamentary sovereignty, as I think the Committee would probably accept, executive sovereignty really, for all practical purposes. One has to reach a position in which the executive for practical purposes cannot but do what is requested. This is perhaps an incremental process but the committee system, which has developed considerably over the last decade, has been quite effective in preventing constitutional solecisms and preventing on some occasions catastrophes from happening in legislative terms.

My proposal would be to create a template for what would be good practice legislation, a process that would include scrutiny standards such as pre-legislative scrutiny, obviously post-legislative scrutiny, but in one place. At the moment you look at a myriad of committee reports overlapping and you do not get it in one place. I think that Parliament should set up 6 Richard Gordon QC and Professor Sir John Baker an independent monitoring body. It has so far resisted this, most recently in its 2008 statement on post-legislative scrutiny. It does it very elegantly. That particular body should work in liaison with the specialist committees of the House of Lords and the House of

Commons and it should have a role by which it could make recommendations. The government must be free, I think, to reject the recommendations. However, it should be required to provide—and the framework statement I drafted attempts to cater for this— weighty reasons, that is a Strasbourg formulation, for rejecting any recommendations. If it cannot do so, it would be publicly recorded, in my scheme, that there was a constitutional violation. This is not perfect. It is not a perfect enforcement mechanism, but it revs up the pressure on the executive, which I think is the thrust of that question.

Q8 The Chairman: Would it be reactive in the sense that this super body would deal with proposals, or would it be proactive in making proposals? Richard Gordon: Both, but in the case of proactivity, in the case of reform proposals, on which it would, of course, consult and liaise with committees, I would think it would not be sensible to give that body any form of power to make recommendations that would be regarded as a constitutional violation if they were not followed. The position is different, I think, with legislation that fails to meet scrutiny standards or existing practices that are entirely unclear and which the body says should be clarified. But the idea that a reform proposal would have effectively to be adopted unless there were good reasons not to is, I think, going too far.

Q9 Lord Hart of Chilton: Would there be any ground rules relating to that, such as prior conditions of attempts to reach consensus, an actual, proper consultation, before proposals are put forward? Richard Gordon: Yes.

Q10 Lord Hart of Chilton: At the moment one of the things we are constantly berating people with is the absence of consultation, the absence of an attempt to reach consensus, and then the absence of pre-legislative scrutiny. I assume that those would be ground rules in relation to the decision-making that would come about as a result of your proposal. Richard Gordon: They would be and, indeed, I am sure the Committee knows about the New Zealand legislative advisory council and the use of checklists in New Zealand particularly. New Zealand is interesting because, unlike most other comparables, it does not have a written constitution. This would have more teeth than that, but the point being that it

7 Richard Gordon QC and Professor Sir John Baker would have checklists and scrutiny standards whereby you would be able to check whether there had been adequate consultation and so on and so forth.

Q11 Lord Norton of Louth: It was this Committee that initially recommended the committee on post-legislative scrutiny that was then referred to the Law Commission. I was very much involved in the Law Commission recommendations. The Law Commission recommended a joint committee and I think what you are suggesting then is taking that and to some extent building on it in terms of having that mechanism for checking that the legislation meets the criteria that you are stipulating. But you are also suggesting then that the committee would have teeth and I am wondering if you could just expand a bit on what you had in mind in terms of the sanctions that they would be able to deploy. Richard Gordon: There will not be sanctions. I do not think you would persuade Parliament to go for it anyway if there were sanctions, but I do not think you could have sanctions. The parallel model, I think, the paradigm perhaps, is if you look at statutes such as the Human Rights Act, which, for all its imperfections, the courts have built on and said it is a constitutional statute and implicitly you cannot repeal it. Momentum builds up and if the House has endorsed a statement of the kind I am suggesting it would be quite difficult for it to pull back from that if it had agreed to what seems like quite a mild proposal. In other words, the scrutiny body, for want of a better word, makes a recommendation, let us say. This would be built into this so it would not be this, but let’s say it made a recommendation for post-legislative scrutiny and the government said, as it did I think in response to the Law Commission’s proposal, “We adopt it but we don’t think we need an external body”, the committee could make a recommendation. If it was not followed and there was not a good reason for it, there would then be a constitutional violation. That is not a sanction but I think it would have quite a powerful political effect.

Q12 Lord Norton of Louth: Yes. It would be the equivalent, as you say, of the Joint Committee on Human Rights or the reputation of something like the Public Accounts Committee in terms of the strength that would come from the reputation of the committee rather than the formal sanctions employed in relation to government? Richard Gordon: Yes. The Chairman: Sir John, do you have a comment on it? Professor Sir John Baker: I agree very much with most of that because I think the force of embarrassment is a very strong one and it has worked up to now with the Human Rights Act. As I said in my opening statement, if things go on as they are at present then there is no answer to Lord Crickhowell’s question. There has to be somehow a change in the way government approaches this question. It seems to me wrong that the government should think it is the function of government to change the constitution that controls its own functioning. Of course, the government can always refuse to facilitate any legislative proposal that comes forward. It seems to me there is less harm done by obstruction than by positively pushing forward reforms that do not have consensus. If nothing happens, it cannot be worse than it is.

Q13 Lord Goldsmith: This is enormously valuable and very thought provoking. Just continuing down that line of what the mechanisms are, what the rules are and how one

8 Richard Gordon QC and Professor Sir John Baker enforces them, in a sense what comes through what you have been saying so far is potentially there are three different mechanisms that could control a future government. One is ultimately the courts, if something is laid down that the courts can enforce, but that gives rise to the issues that Richard Gordon referred to about concerns about justiciability of a constitution. The second is a written constitution or something of that sort that imposes some, for example, supra-majority provisions in relation to particular forms of legislation, although again how it is enforced may come back to the same question. The third is a degree, ultimately, of parliamentary restraint, which is caused either by a risk of embarrassment or a consensus as to what the right thing to do is, or possibly it is a question of the role that this House can play, which at some stage it would be interesting to have your views on, although this House can play less of a role when two of the major parties are in coalition than it can when only one of them is in government. My question was really to try to tease those out. As a matter of reality, which of these is actually going to work? Does it ultimately depend upon parliamentary self-restraint surrounded by methods of embarrassment, strong statements as to what the constitutional process ought to be, or do we need to have something more than that, like a written constitution that produces a supra-majority or like an ability for the courts to do what they have never done since Cromwell, which is to interfere in what Parliament is doing? Professor Sir John Baker: If I might start. That is partly a political question of what can in practice be achieved, and your Lordships are better placed to decide that than a humble academic from outside because it is real politics. I am not utterly persuaded that a written constitution is the most desirable course. I perhaps differ from Richard Gordon on this. At least until recently, I was always of the opinion that written constitutions were unsatisfactory because of the power they give the judges. Of course they are very wise; you would have the advantage of a written text; and you would know how to change it, so that it would not be necessary to have this Committee asking these questions. But judges can only focus on cases in front of them; they cannot take account of wider issues that are not represented by counsel. They cannot take account of problems of resource allocation, because they are only considering the one issue in front of them and, therefore, they think in absolute terms. There are also many questions on which I do not think judges have any more qualifications to decide than ordinary people. For instance, if the question of defining human life—in the context of abortion—came to be an issue in this country, are judges better qualified to say when human life begins than Members of Parliament? I do not see that they are. To label that a legal question is very misleading. It is not a legal question. On the other hand, the alternative may be worse. For me it all turns on the future of the House of Lords. If the House of Lords loses its present power to do what it has been doing over the last ten years then the only alternative is to hand the authority to the judges. But I would prefer it if a solution could be found within Parliament; that is my personal view. Richard Gordon: Yes, I agree with the three categories. I think those are the three categories. My own preference, despite the book that I wrote a year or two ago, is for parliamentary restraint, but it would be a restraint that was also a surrender of some power. In other words, it will obviously take restraint for Parliament to consent to a statement of principle with teeth but, once done, rather like the Human Rights Act, you get what I would call the law of unintended effects, whereas a written constitution is just a bridge too far. It is rather like the localism that is surfacing in the new Bill. It is great to empower communities, but do those communities yet have the sophistication, the knowledge, the education, to be able sensibly to take advantage of it? I do not think we are going to get a written constitution politically and, therefore, I agree with Sir John.

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I think there is a great deal of latent hostility between Parliament, certainly the Commons, and judges, both ways. I think neither necessarily have entered into a constitutional dialogue with the other, and I think we saw in the hunting case there were two Law Lords out of a panel of, I think, seven or nine, making quite frightening statements about the judiciary constructing parliamentary sovereignty and if they can do that they can take it away. Now, that as a constitutional statement is almost revolutionary. My feeling is that you could not just go for a model like a constitutional reform position statement without the House of Lords actively being involved by way of its committees. The great tension and worry that I think I have is what is going to happen to the House of Lords. If the House of Lords were to become wholly elected, the role that a specialist House might play at the moment might be diluted quite a lot. That would worry me, so that is why I do think you need some independent scrutiny as well.

Q14 Lord Goldsmith: That is very useful indeed. Just on that last point, presumably an elected House of Lords would also not carry with it the independence from a party political point of view that would be necessary in order to impose that restraint? Richard Gordon: Exactly.

Q15 Lord Goldsmith: But the second question I just wanted to go back to, if parliamentary self-restraint is the only practicable way forward, at least at the moment, then we need to find a way of writing the rules, as it were, by which Parliament should govern itself and should restrain itself so it can see those areas that are problematic. The question is how we go about writing that rulebook. Richard Gordon: I agree, and I think drafting it would be quite a considerable exercise. I suspect the rather rushed lines that I have drafted would not meet the political temperature sufficiently. Lord Goldsmith: It is a good start. Richard Gordon: But something is needed, yes. Lord Goldsmith: Yes.

Q16 Lord Powell of Bayswater: I just wanted to look at the same question for a moment from the other end of the telescope and Sir John’s “real politics”. If a political party campaigns on a manifesto that includes a substantial measure of constitutional reform and wins a healthy majority, are we right to be trying to set mantraps to hinder the application of that constitutional change? Is it democratic to suggest that a dusty committee of the Lords should be able to stand up to the will of the majority as expressed in an election? Professor Sir John Baker: I think it is.

Q17 Lord Powell of Bayswater: I gathered that, but I wondered why you think it is. Professor Sir John Baker: Well, it is the problem of majoritarianism, isn’t it? Merely because you have a majority of one, I do not think that is a sufficient entitlement. The Chairman: I think Lord Powell said a healthy majority.

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Lord Powell of Bayswater: Which traditionally, on the whole, governments have had. I know we are in a unique situation now. Professor Sir John Baker: I would suggest that in order to change the rules by which governments operate one needs a very substantial measure of consensus, and simply to include it in a party manifesto along with hundreds of other things is not sufficient. I should perhaps add that I would not favour referendums either. I do not think that is the way of doing it.

Q18 Lord Norton of Louth: Coming back to the point about consensus, one can distinguish between having a consensus on the process—I think that is possibly achievable along the lines that Mr Gordon was indicating—and consensus on the substance, as Sir John was suggesting here and in your lecture. You are suggesting there should be some extraordinary procedure governing it. If we look at the principal constitutional legislation that has gone through over the past century since the Parliament Act, hardly any of that has been consensual. It is the government of the day; it has gone through usually on a party vote, with the possible exception of the Representation of the People Act 1918. On the basis of that, one could argue then your proposal would in practice result in very little happening to our constitution. Would your argument, therefore, be that the onus then comes on the government to be more proactive in persuading others rather than simply relying on a majority? Do you think that is achievable or is it the case that we are probably going to have to stick with what we have if those procedures were implemented? Professor Sir John Baker: What I was mainly urging was joined-up thinking rather than just picking off points one by one. I do not see the government of the day having time to do that and, therefore, there needs to be some other way of approaching the constitution as a whole. I entirely take your point, of course, about others driving constitutional change, particularly when it is impossible, it seems, to get the public interested. I think that is the fault of the press. I think if the press could report a little more of what is going on, for instance in this Committee, we would have a much better environment for constitutional change. At the moment, there seems to be complete indifference outside Parliament to even major changes.

Q19 Lord Shaw of Northstead: The more I listen to all this the more I feel that these discussions that we are having are very necessary and, of course, very valuable, but I am not convinced that the way we are conducting things at the moment is not as far as we can go and as good as we can get. Do we need to alter anything basically? Richard Gordon: You need to alter the lack of—to use Sir John’s phrase, perhaps— joined-up thinking, the lack of a clear line between that which is appreciated as sensible and desirable by, for example, a specialist committee, by academics following that, by the Law Commission following that, but no action being taken, so quite a lot of hot air is blown. If one ploughed through all the overlapping committees of the Commons and the Lords, but particularly perhaps the EU Committee, this Committee and one or two others, perhaps the Political and Constitutional Reform Committee in the Commons, you would probably, digging through it, find a template for good legislation. You would find it in isolated sentences of a report here and there. You could pick it all up, but it would not be, as I said earlier, in one place and it would not, therefore, have the potency. I remember speaking to the then

11 Richard Gordon QC and Professor Sir John Baker head of the Law Commission who bemoaned the fact that several reports of the Law Commission just were jettisoned; they went nowhere. What seems to me to be very important is not only the development of the present processes but something new that injects quasi-enforcement into it. That is why I go for this kind of model.

Q20 Lord Crickhowell: Lord Powell posed the question of the government coming in with a substantial majority, but really the greater problem may be the present situation where two parties have commitments in their manifestos to which they attach huge importance and the only way in which a government was formed was for a deal to be done in which the two most important—just pick two out of a number—constitutional commitments in both parties have been put together in a deal, which then is presented to Parliament as being sacred and unbreakable and has been presented in that way. Bearing in mind we only have a government in existence because of the existence of this agreement and it is, therefore, pressing on with these proposals regardless, I again cannot be clear, however desirable all these proposals are, whether they could be implemented in practice. Richard Gordon: To take, for example, something like the Public Bodies Bill, which has huge constitutional implications in relation to bodies that could be abolished by the exercise of a Henry VIII clause and where they have the sword of Damocles hanging over their head, that executive fiat would be in any coherent constitutional model, I suspect, a cause for a scrutiny body making a strong recommendation.

Q21 Lord Crickhowell: But it has actually had scrutiny at this Committee and, in fairness, the Government has very substantially altered and improved the Bill as a result of this scrutiny. Richard Gordon: Yes. That is very helpful, but to the extent that the Government did not pause for thought, did not stop, continued on its legislative rollercoaster simply because it had a policy initiative that was not democratically mandated but was a fusion of two parties, let’s say, this would be an improvement. It would be a practical improvement. What you cannot stop, I think, are democratic results, whether they be the result of a fusion or a strong majority, following a process resulting in legislation that may not have the endorsement of a majority of the population. What you can do, none the less, both with post-legislative scrutiny and the kind of model I suggest here, is to go back over our constitutional arrangements, existing arrangements as well, and seek clarity and reform in relation to past legislation. That could have an effect for the future in a way that currently it does not.

Q22 Lord Renton of Mount Harry: First of all, my apologies for arriving late, Lord Chairman. Have you already discussed very much the question of referenda or not? The Chairman: No. We have alluded to it, because we referred back to the European Union Bill that we were discussing on the floor yesterday, and Sir John said that he was unhappy with referendums but not in a particular context. So I think that is a useful development. Lord Renton of Mount Harry: Thank you very much. First of all, I very much agree as an ex-MP with the comments that one of you just made that it is easy to exaggerate the

12 Richard Gordon QC and Professor Sir John Baker amount of interest that people as a whole have in what is happening in Parliament and so forth. I remember as an MP how we had to bribe people with coffee and cocoa to get them to come and do anything at all. I do not think that basically that has changed, but where it seems to me that there is a real possibility of change is this new emphasis on referenda; and not just that on 5 May on AV and so on but also indeed on the European Union Bill. I wonder how you regard this in terms of your overall view of Parliament and its relationship with people. It does seem to me now that there is this sort of growth of “Well, we’ll have a referendum; that is going to be more interesting to people than things that happen at general elections” and that, therefore, almost inevitably the importance of the general election recedes because the important thing is the referendum that has happened in the middle because of something like a crisis. I just wonder what your views are on that. Professor Sir John Baker: Well, it certainly might create more interest, I would concede that. My concern is that it might not produce the right answers. For one thing, it offends against my objection to piecemeal legislation. You are picking out one issue and you are asking people a very specific issue. Most intelligent people’s reaction to a referendum is, “Well, what if this...? Yes, I might vote for that, if that”. Take the voting system: you might say that is a separate issue that can be separated out. But one might need to ask other questions, such as, what are MPs for? You really need to decide that before you can decide what method of selection you are going to use. Everything is interrelated. I am not saying the public are not intelligent enough to understand these issues, but I think if they are only presented with one very specific issue that has been framed by the government, presumably in a way that is designed to produce a particular sort of answer, and there is not then much guidance—and I have not yet heard very sensible arguments in public about voting systems; journalists have written things about them, but there has not been much guidance in the form of leaflets or anything—I am not sure that that is calculated to produce a result that is any better than sticking a pin in. Richard Gordon: My own feeling about referendums is that they are part of a much wider constitutional series of interlocking provisions. If you had a written constitution there could be a place for referenda. There is a place in our current constitution for referenda but we do not quite know what it is. We do not really know when referendums are conducted, undertaken, and the process itself, as Sir John has indicated, has a great deal of uncertainty attached to it in terms of the result it produces. It does seem to me that this is a particular area of our existing arrangements that needs to be clarified. In the proposal I put forward, or suggest tentatively, the monitoring body would examine precisely that form of question. It would then eventually perhaps make a recommendation.

Q23 Lord Goldsmith: I just want to follow up on the referenda question, or referendums question. One thing that it does do is to focus the mind of the government of the day on whether it really wants something. History is littered with cases of governments who have found themselves going to a referendum on particular issues, losing them, and that has been politically very, very damaging. For example, in dealing with the issue of independence for overseas territories, the government view has been you cannot get the people to decide this in a general election. You have to have something that is quite specific to know that is what the people want so that it is not just swept up in general enthusiasm for one party or another. Do you see merit in a referendum at least as a way of forcing a government to think? Does it really, for example to take the Fixed-term Parliaments Bill at

13 Richard Gordon QC and Professor Sir John Baker the moment, want four years or five years? What actually is the significance of this and are they prepared to put their judgement to a big political test, not just to the test in Parliament where it knows it is going to command a majority? Professor Sir John Baker: Well, I would not go so far as to say they could never be of use, but I am very suspicious about their value. Richard Gordon: I simply do not know the answer I am afraid. I think they could have that tangential value, but that does not necessarily legitimise the constitutional use of a referendum. On that model, it becomes a political weapon in certain circumstances, but that does not necessarily mean it should be adopted constitutionally.

Q24 The Chairman: You have both referred, I think, to New Zealand as an example of a country where some of these matters are more appropriately dealt with, where, of course, the referendum weapon, if you want to use that, has been used more substantially. Do you feel there is any connection between those two? Professor Sir John Baker: I am afraid I have not studied the use of referendums in New Zealand. I should have done. The Chairman: No. Well, let’s move on.

Q25 Lord Rodgers of Quarry Bank: I still struggle myself with what is and is not reform. In your short article in The Times you refer to European diktat and global capitalism. Yesterday we had to debate the second reading of the European Union Bill, as Lord Renton has mentioned, on referendums. How far do you see the European Union Bill as a reform Bill because it includes referendums and sets aside what you describe as a European diktat? If I may just follow and link that, I look to a further paragraph. You refer to the apathy that seems to have been triggered, with a rapidly declining electoral pattern—not entirely true recently—and then you go on further to, going back if I may, the time-honoured institutions of the House of Lords, the banks and the police appear increasingly unfit for the purpose. What I am trying to get round my mind is—I am not making it very clear—are you perhaps making assumptions about things that need reform and how would you define the terms? If there is evidence of “increasingly unfit for purpose”, what is the measure? Richard Gordon: Well, the measure has to be, I think, first of all, reaching a definition of what constitutional change is on a very broad and open-ended level, which I have tried to do. But that is not enough because so many things could fall under that umbrella. What you then have to do, as Sir John has done and as I have tried perhaps less effectively to do, is to delineate the areas where there would be a presumption that constitutional change was involved. I happen to think, not because of the referendum particularly, that in the context of the European Union Bill that would be constitutional reform because it would affect in a new way the relationship between our institutions and Europe. That seems to me something that should be presumed to be constitutional reform. There are many other areas that would not fall within that and where there would be no presumption. In this draft model, what I have said is, “Exceptionally, other proposals for laws, rules or other practices which are considered to affect the operation of the constitution in a new and significant way will be subject to the appropriate monitoring and scrutiny procedures”. One or two of the things you have mentioned—I fear that I may have said quite a lot of things in The Times article before I had considered the matter properly—might well not be

14 Richard Gordon QC and Professor Sir John Baker constitutional reform. It would depend, I am afraid, in some areas at least, on an evaluation of the substantial effect test, which is obviously one of value judgement. The Chairman: Does that take you any further, Lord Rodgers, or do you want to pursue this?

Q26 Lord Rodgers of Quarry Bank: No, not quite. Let me just take the example I have mentioned in passing, “The police appear increasingly unfit for purpose”. I am only saying how do you define it and explain it and give evidence to justify the need for reform? Richard Gordon: Certainly, the reform of the police is not something at the moment that self-evidently fits within the categories I have put in. It might well be a policy to deal with in legislation. One of the points I wanted to make was that you can have public policy legislation that is not constitutionally focused but which does have constitutional effects and, therefore, that would also fall within my definition of constitutional reform. How you would get the evidence that the police are not fit for purpose—I am sorry that I am being lynched on that phrase—you would obviously have to look at how effective the police are in modern society from an evaluation of statistics. But I am not sure that is the question that leads to the definitional one of what is constitutional change. What is constitutional change must be something that either: falls within a presumption that because it affects the existing institutions and is new is constitutional reform or it is an exceptional case. Those are my broad categories.

Q27 Lord Norton of Louth: If I can come back to the point about joined-up thinking. Sir John, in your lecture it is a point you make about there being no coherence to the approach to constitutional change as a constitution. Both of you, in talking about looking at joined-up thinking, have tended to stress the role of Parliament. I want to take it back a bit to government. To take the example you have already offered of the Public Bodies Bill, Clause 11 and Schedule 7 are out because of the work of this House, but the point you were making, Mr Gordon, is why did the Government not think of that in the first place and see the objection? I really want to come back to the point about within government itself there are presumably problems now because there is no joined-up thinking about our constitutional arrangements; things come forward on a very piecemeal basis. Should there be some mechanism, some process within government that we should be exploring that would avoid problems that you have identified?

Q28 The Chairman: May I add a subsidiary to that? Would it not be possible to make a case that if the government, as it were, functioned in a way that in constitutional classes at the university would be considered in terms of Cabinet Committees and so forth, that would, in fact, be the appropriate mechanism? Professor Sir John Baker: We had a Department for Constitutional Affairs. It struck me as outrageous that the Government should actually set up a department to change the constitution. We then had a Democratic Renewal Council, which is so secret we are not even allowed to know whether it meets. I do not even know whether it still exists; I presume it does. It does not seem to have produced any good. There needs to be something written down somewhere.

15 Richard Gordon QC and Professor Sir John Baker

Q29 The Chairman: Sorry to interrupt you, but let us assume that those two institutions that you have quoted were to some extent politically transient, would not the operation of the unwritten constitution about Cabinet government, as we have understood it very clearly I think in this country, in an appropriate way answer the question that Lord Norton has put? Professor Sir John Baker: Well, perhaps I have misunderstood it, but it seems to me that to leave it entirely to the government without any kind of check is dangerous. In fact, it is not constitutional.

Q30 Lord Norton of Louth: I was not thinking in terms of the check, I was thinking government thinking itself, the process at the moment, because it seems so disparate. Hence the point you were making about there is no joined-up thinking within government itself, so should there be something done within government that enables it to think, “If we do this, it has that effect. How do we see it? What is the impact upon our constitutional arrangements?” Professor Sir John Baker: There should be, yes. Richard Gordon: This is very primitive, I am afraid, but what I suggest is that where there is any doubt that, for example, proposed legislation may involve issues relating to constitutional reform, those responsible should consult the scrutiny body and obtain a view. Now, that is fairly primitive but it seeks to address your question, which is should there not be some mechanism for government being alerted to danger long before you even get into pre-legislative scrutiny, and the answer is, yes, there should be. It is very unlikely to be manuals on legislative techniques because they simply will not be read in practice. There has to be some dynamic that falls short of coercion but which is a trigger for action.

Q31 Lord Norton of Louth: But doesn’t that suggest that you have some mechanism within Parliament that does understand the constitution, but you are suggesting within government they are having to refer it because they do not understand the constitution? Richard Gordon: I am, yes.

Q32 Lord Norton of Louth: Should there be some means by which government itself is somewhat more sensitive and has greater awareness? Richard Gordon: Yes. For example, without wishing to be disrespectful, some of the statements made by the Prime Minister on the effect of the Human Rights Act, the need for a Bill of Rights, certainly before he came into office, demonstrate, I think, a lack of full constitutional legal understanding. There is a need for whether you call it education or advice or something that enables them to be alerted. All I was suggesting, perhaps much more immediately and without the wider picture of that much more strategic framework, is the threat that they could be at risk of a recommendation so they need to be over-careful in what they refer to a scrutiny committee.

Q33 Lord Crickhowell: I think one is encouraged to support that view on the draft Cabinet Manual, which made no mention, for example, of Henry VIII clauses in its guidance, gave no proper advice about how to approach constitutional change and made a series of

16 Richard Gordon QC and Professor Sir John Baker quite serious mistakes about the arrangements for the House of Lords. If the system within government, as exposed by that manual, is flawed, the case for having some body to which things should be referred does seem to me rather a strong one. Richard Gordon: The Cabinet Manual would be a classic example of a constitutional practice that was not legislation but which had constitutional implications. One of the interesting questions that came up at the all-party group was whether this Manual would be justiciable. The answer is if it is justiciable it is probably a good thing if the court can declare that something is legally inaccurate in it, for example. I do not see that as a threat to democracy. Professor Sir John Baker: At least we now know, or at least we think we know, what sort of advice is now being given and, if it is flawed, we know that it is flawed and we can make suggestions for improving it.

Q34 Lord Goldsmith: Just coming back to this external body that tells the government, either at its request or unsolicited, “This is a constitutional matter and these rules should apply” or after the event, “This is a constitutional violation because you haven’t obeyed these rules”, I am very interested in this idea. You mentioned, I think, Mr Gordon, the New Zealand example as a place where this exists. Who sits on this body and how is it appointed? Richard Gordon: Well, two points. First of all, the New Zealand body does not have the “coercive” power that I am suggesting. It is purely recommendatory. It was set up by government. It is independent. It has academics, it has a wide range of constitutional specialists on it, and it produces a book, basically, with scrutiny standards, checklists. It is taken very seriously in New Zealand, but I should add to that or qualify that by saying that I am not convinced that New Zealand has the system of parliamentary committees that we have in this country. Yes, you have that body but, no, you do not have the specialist parliamentary committees. You could say it balances out. What you do not have in New Zealand is these extra teeth that I am suggesting that this body should have.

Q35 Lord Goldsmith: What successes has it had, if you in your terms define as successes cases when it has changed the course of what the government was doing or stopped the government in its tracks? Richard Gordon: I cannot give you specific examples because I have not studied its progress in that way. What I can say is that the process of legislative scrutiny in New Zealand is more advanced than ours in this respect at least, that there are a series of set-out templates for legislation of the kind I suspect may have been recommended by this Committee in 2004. It is a formal process.

Q36 Lord Goldsmith: Are there other countries that have a similar system? Richard Gordon: The countries one would be looking at are countries with a system not dissimilar to ours, perhaps, but of course in Continental-style councils of state you probably have that kind of system. In Australia, because of its federalist structure, you have some states like Queensland that go quite far in legislative scrutiny but other states that perhaps do not. I think that New Zealand is quite a good model. Not only, of course, does it have this system, it also has a Cabinet Manual from which we have learned quite a lot, I think.

17 Richard Gordon QC and Professor Sir John Baker

Q37 Lord Goldsmith: It does not have a written constitution, which was the point you made before, whereas these other countries may well have a written constitution. So the councils of state will be applying those rather than their own judgement as to what is an appropriate way to proceed. Richard Gordon: Yes, that is true.

Q38 The Chairman: In your lecture, Sir John, you mentioned Canada, not as an example of this but as an example of an effective use of what one might call a lighter form of judicial review than, for example, the American courts. Did you want to pursue any of that in relation to constitutional reform? Professor Sir John Baker: Yes. My views on that were rather secondhand, Lord Chairman, and I apologise for not having done the research. As I understand it, the courts in Canada can override a statute but it is not final in the way that the American courts can simply reject a statute as unconstitutional. The government in Canada can come back and insist on the statute, but as I understand it the onus is on them. Then we have this embarrassment factor, as with the Human Rights Act here. A government is very unlikely to say, “Well, we’re going to do it anyway”, and I believe so far the government in Canada has not done that.

Q39 Lord Powell of Bayswater: I am still troubled by the question that really leads on from what Lord Goldsmith was asking and which relates to what I said earlier. How do you legitimise constitutional change? Both of you have clearly set your faces against legitimising it by popular vote, whether in an election or a referendum or in referendum with a threshold, and want to legitimise it by a process, seemingly one involving an unelected body and the weapon of embarrassment. It just seems to me that that is slightly swimming against the tide of modern politics. Do you think you are perhaps getting into a bit of a dead end here? It sounds that what you are describing might have gone down well in the 19th century but I just wonder whether in the 21st it will. The Chairman: I think that particularly relates to the point about the House of Lords, which you have both made, and we could explore that a little more. Professor Sir John Baker: Yes, that is the core of the problem, I agree, and I am not sure how one resolves it logically. Practically, it seems to me, for the reasons I have given, that if the House of Lords becomes an elected body, or largely elected body, with career politicians who are seeking advancement through the political world, even if the House does not have the same political complexions as the House of Commons, it is going to change its character. I think everybody agrees that it would change its character, and the only argument that I have heard in favour of it is that the House must be democratic in order to have legitimacy. I have never been persuaded by that case. I have not heard it argued. It seems to be assumed very widely in spite of the Parliament Act. If we did not have the Parliament Act it might be a good argument, but the House of Lords cannot force laws on people that have not been voted for. It provides the kind of independent check that is needed and it is either that or the judges under our present system, unless we can think of something else. A committee of citizens or a jury of citizens might sound excellent in theory, but I cannot see it really working in practice. Lord Powell of Bayswater: Sounds more like Celebrity Come Dancing, if I may say so.

18 Richard Gordon QC and Professor Sir John Baker

Professor Sir John Baker: Well, it would operate rather like that, I think, yes. Richard Gordon: I take Lord Powell’s question as really a polite but frontal attack on each of our positions. My response to that would be, first of all my credentials for radical reform are perhaps encapsulated in the book I have written, which is an attempt in principle to capture democratic legitimacy. You would have citizens’ councils on it; you would have automatic referendums and so on. But it seems to me that, although I agree that that is more in tune with the zeitgeist, it is simply impracticable at this moment. What one should be looking for is a process for recognising that there are serious deficiencies in our constitutional system and how best they may be resolved. All the soundings I got from the book when I wrote it were, “Fine, very interesting, but nobody is going to adopt a written constitution”. If that is not correct, I resile from all our positions, very happy to go for it, but if it is correct, and I think it probably is, then the second-tier model that I am suggesting seems to me to catch parliamentary sovereignty and accept it, because I attack it in the book as a fiction. It also accepts the incremental model of our constitution and organic development and what do we have other than the weapon of shame or total constitutional change? I do not see what it is.

Q40 Lord Powell of Bayswater: Might I just say I would not dream of attacking your credentials, which are infinitely greater than my own. It was just the conclusions you were reaching. Richard Gordon: Absolutely. Professor Sir John Baker: If I may come back on the question again, it seems to me that it is a matter of trying to write down in some way what are accepted norms. Of course, putting it in writing does not solve problems, there are still going to be questions of interpretation, but most so-called democratic countries in the world have written constitutions. They are not ruled by popular democratic bodies; they are ruled by judges, in fact. I think our system as we had it was better than that.

Q41 Lord Rodgers of Quarry Bank: I was going to ask a question further about the House of Lords. We have been through this now and we do not want to go in too deeply, but when we do make assumptions about reform of the Lords, I see here—forgive me, but I refer to your paper, your article—again “increasingly unfit for purpose”, referring to the House of Lords. What is the measure of it being increasingly unfit? I mention that again because we are a more representative House; you can say that without any question. We have far more extended scrutiny. What is your measure again of increasingly unfit? Richard Gordon: It is not my position, incidentally. My book sets out very clearly the role I think the House of Lords should have, and I am much more inclined to an appointed and an elected House. I compromised at 70/30 in favour of elected simply because it seemed to me that that was where the tide was going, but I do not believe that we should have an elected House, if you ask my personal position. You could step back from this and you could look at the preamble to the Parliament Act, which talks about the need to make the House of Lords more representative and to radically reform it. A hundred years have gone by and you could say, “Well, what has actually happened?” You could ask, “If nothing has happened or very little has happened, why hasn’t it?”

19 Richard Gordon QC and Professor Sir John Baker

Lord Rodgers of Quarry Bank: A great deal has, a great deal. Richard Gordon: Well, exactly. In fact, I think the committee system, for example, has developed enormously. We have seen what has happened, of course, in relation to hereditary peers. I fear the dangers of what might happen in the near future more than I fear the current system. Notwithstanding all that, I do not think that however good the committee system is—and it is good, with some problems because there are the overlaps and so on—it is sufficient sanction, for want of a better word, in the process of legislative reform that we are talking about, constitutional reform. It is good but it does not cement reform effectively or as effectively as it might.

Q42 Lord Goldsmith: I was going to ask a slightly different question if I may, if that is convenient. We have had some discussion about consensus and I wanted—this perhaps is particularly addressed to Sir John—to look backwards at how consensus has been achieved on difficult constitutional problems in the past, whether that has involved a consultation of opposition parties, of minority groups and so forth, and whether there are examples you can draw on from legal history of great constitutional reform that have involved consensus that has worked. Professor Sir John Baker: I do not think we have, really. It has not been built into the system in the past. Of course, there have been measures like the Human Rights Act, which had a wide measure of consensus. In terms of the concept of human rights, there is, of course, a great debate now about who should decide on them, but there was broad agreement on the Act and it had been talked about quite a lot in advance. You may compare that with the Supreme Court, for instance, which was presented as a fait accompli and there was no public discussion, even though there was great disagreement amoung the Law Lords, as I understand it; a completely different approach.

Q43 Lord Goldsmith: I was trying to go back a bit before that. Professor Sir John Baker: A bit before, yes. Well, I do not think there ever was an attempt to achieve consensus under our present system. That is a defect of an unwritten constitution. The Chairman: Did you want to pursue that, Lord Goldsmith? Lord Goldsmith: I cannot.

Q44 Lord Hart of Chilton: I just have one question. We have been talking a little this morning about what form of toolkit we could adopt to make things better and there have been various views put forward: yes, it would be a good idea; no, it is swimming against the tide. I would like to go into the question of a tide moving in favour of greater judicial intervention, and I would like you both to comment on that, because if there is greater judicial intervention then, of course, that could lead to a big constitutional crisis in itself. Richard Gordon: I foresee that, I am afraid, as something that is quite possible. Admittedly, a lot of the move to the Supreme Court was cosmetic and so far the Supreme Court has kept very much within its remit. It has not really changed. There is a very interesting book called Constitutional Futures Revisited, which is edited by Robert Hazell, and there is an essay in that book on the future of the Supreme Court. There are four possible scenarios, one of them being the Supreme Court discovering its Marbury v Madison moment and striking down 20 Richard Gordon QC and Professor Sir John Baker an Act of Parliament, declaring it to be unconstitutional. I think it was Sir Stephen Sedley who said if that happened you would not know who would blink first, but the point being that if that happened it would be wholly unprecedented. There is an unresolved question at the heart of our constitutional arrangements, which is did the judges create sovereignty and, if so, can they take it away? Or, as I think, was sovereignty a political reality that it is not a construct of the common law but is a fact, a political fact? If the judges attempted to legalise its origins and to change it, would that be to create revolution from a judicial construct of their own? There are real unresolved tensions here, and that is why in this suggestion I have for a scrutiny body you would be going over those questions. You would be clarifying it long before it happened. I do at the moment think there is a real possibility; it will be incremental but if it happens it will be a very major shift. Professor Sir John Baker: Yes, sovereignty is a fact, clearly. I agree with Richard Gordon. But the Supreme Court and its predecessor have indicated a willingness to begin to change the conventions that the judges apply in relation to Parliament. It could be said that the recognition of Parliament as being sovereign is a convention, or you could say it is an observation of fact. I think it is a mixture of the two, really, but if the judges are already beginning to think that they might change the convention that is a warning sign that Parliament and the Government ought to take notice of. It would be the least satisfactory way of dealing with the issue because the judges then would be acting without any written guidance as with a written constitution. They would be having to make up the constitution as they went along in striking down Acts of Parliament. I am sure they would only do it, to begin, with in an extreme case, which one does not like to try to contemplate, but it might spread from then onwards. It would be far better to reform the system in such a way that they did not have to do it. Richard Gordon: I should just mention, by the way, interestingly that I was told, again coming back to New Zealand, that they put into the judicial oath a commitment to upholding sovereignty, which is a very interesting legislative device. It may be worth considering.

Q45 Lord Norton of Louth: We are coming almost full circle in terms of definition, which is obviously usually the biggest problem. It is really, Sir John, your point about trying to achieve a consensus, and consensus and, say, a supra-majority are not necessarily the same thing. Coming back to attempts to reach agreement on previous constitutional measures, you have cross-party talks that have then usually broken down. I am just wondering what you were thinking of in terms of the mechanisms by which one would seek to achieve a consensus, not necessarily just an majority, say, in Parliament but presumably consultation, bringing in other groups, in order to reach agreement. I presume that is what you were meaning by consensus in order to move forward? Professor Sir John Baker: Yes, there are different kinds of constitutional change, of course, and there are some that have simply been exercises of political power. The Parliament Act is an example, the first one: the use of a majority to achieve a result that could have been achieved in other ways by flooding the House of Lords with peers or whatever. Others, which are the better ones, are those that are a result of discussion and everyone coming to agree. But I have already said that I am not altogether sure how one achieves that in a world in which the press show a complete lack of interest in constitutional matters. I am afraid as long as that is the case we are not going to get the public working these things out from scratch. They have to be guided in some way, but the guidance should not come from a government that has thought up the policy behind closed doors and then announces it as

21 Richard Gordon QC and Professor Sir John Baker government policy so that if you ask a question “would it be better if we did it that way?” you are seen as attacking the government.

Q46 Lord Norton of Louth: It should be a more open process? Professor Sir John Baker: A more open process, yes.

Q47 The Chairman: Not necessarily a more informed one, from what you are saying? Professor Sir John Baker: More informed, yes. The Chairman: That is difficult to achieve. Does any other member of the Committee have a point that they wish to make? Well, we are enormously grateful to both of you. It has been very, very interesting indeed. As we said at the beginning, we would be very grateful for all the written documents that you were speaking about when you gave us your good lists and so forth. We are very grateful indeed for your time. This has been very valuable and we obviously will return to many of these subjects when we come to write our report. Thank you both very much indeed. Written evidence from Professor Sir John Baker, University of Cambridge (CRP 14) Although I attended the Committee in person to try to answer some of their questions, I would be grateful if I might in addition make a few brief observations in writing.

One of my main concerns is that it seems to have become assumed over the last few years that constitutional change is a never-ending continuous process, and even more alarmingly that it is a process which (for want of any other system) belongs to the government of the day to manage. This has never been the case in the past, and it is not the case in any other civilised country which comes to mind: that is why the questions raised by the Committee are novel and so difficult to tackle.

A constitution should be thought about as a whole, it should command general support, and it should be more or less fixed, with the possibility of alteration only rarely and by special procedures. Tinkering with parts of the whole can be dangerous, and this will be especially true if reform of the House of Lords is undertaken independently of the question of a written constitution. If the House is changed in such a way that it becomes no more effective than the Commons, and if power is not thereupon transferred to the judges by means of a written constitution (with judicial review), there may no longer be any effective balances at all. My own preference would be for checks and balances within the parliamentary system; but what really worries me is that very soon we may have none, because no one in power is thinking constitutionally.

I am well aware that we cannot easily entrench anything under our existing constitution, but what is left of that has now been so battered that a new way has to be found. It would presumably be possible to devise special procedures within Parliament for constitutional legislation, and the sanction for these, assuming the courts are not to be let loose on the internal proceedings of Parliament, would be the force of embarrassment for any government which announced that it was going to act unconstitutionally. I offered in my oral evidence a draft definition of the kinds of measure which might be regarded as constitutional, but I also indicated that not all measures falling within the definition would require the same

22 Richard Gordon QC and Professor Sir John Baker treatment. Some might be dealt with through select committees applying accepted criteria and certifying compliance. For major changes, however, I suggest there should be at least a two-thirds majority of both Houses, and that the House of Lords veto should be restored.

I was asked by Lord Powell of Bayswater whether it is undemocratic to try to restrain an elected Government from bringing in any constitutional measures it pleases, at least if it has mentioned them in an election manifesto and has a healthy majority. That was, with respect, a very good question, and I am conscious that the answer I gave on the spur of the moment was lacking in lucidity. The correct answer, I think, is that a constitution is a higher form of democracy than the exercise of power by an elected government. The inclusion of an item of constitutional change in a party manifesto does not prove that it commands the general consent of those who voted for the party; moreover, even those who did not vote for the party have (or should have) human and constitutional rights. A much greater degree of consent is needed for a substantial constitutional change. This is because a constitution is not properly an exercise of power but a means of limiting the exercise of power, not only by protecting basic rights but also by ensuring an appropriate legislative process and preventing arbitrariness. For this purpose it must command the general approval of the people, not merely a majority vote on a specific issue or a general mandate arising from a general election. It is a different kind of democracy, but no less real. Most avowedly democratic countries in the world have written constitutions which limit and control what may be done through elected legislators. If it is once allowed that an elected government may change the constitution merely because it is in power – and that seems to have been the assumption of the Blair administration – it must follow that we no longer have a constitution of any kind in this country.

1 April 2011

23 Richard Gordon QC and Professor Sir John Baker

Written evidence from Richard Gordon QC (CRP 15)

This is the Constitutional Framework Statement that I referred to in my oral evidence to the Committee.

I hope that the format is clear. It is intended to consist of a short document that has hypothetically been endorsed by both Houses. Apart from the short text I have also included brief notes to explain the rationale of the various sections of the document.

FIRST DRAFT OF A POSSIBLE MODEL FOR A CONSTITUTIONAL REFORM FRAMEWORK STATEMENT1

Introduction

1. Although the UK possesses a constitution, it is not codified. This means that significant constitutional changes may occur without any amendment process such as would be required in most countries with a codified Constitution containing specific amendment provisions.

2. Significant constitutional change in the UK may occur in many ways. Most often it will be in the form of Acts of Parliament that are specifically designed to implement constitutional change. An example of this is the statutory creation of a new Supreme Court in the Constitutional Reform Act 2005.

3. But significant constitutional change may occur in other ways. Statutes may be enacted for public policy purposes that are not intentionally designed to effect constitutional reform but which may have potentially profound constitutional implications. Delegated legislation may now enable the executive to amend primary legislation through so-called Henry VIII clauses, with the result that Parliament could lose control over major parts of the legislative process without careful scrutiny of the proposed primary legislation in advance of its being enacted. Other more continuous constitutional practices such as constitutional conventions or the development of the common law may also have the potential for creating significant constitutional change.

4. There is currently no independent comprehensive mechanism for monitoring the operation of the UK constitution or for ensuring that legislative and other proposals (including proposals for future rules or practices) are scrutinised for their potential constitutional significance. Nor is there an independent comprehensive mechanism for scrutinising existing laws, rules, or other practices so as to enable clarification of their impact on the constitution. Parliament considers that such a mechanism should be introduced at the earliest opportunity.

1 This Statement contains Notes after each section but these Notes would not be included in any published Framework Statement. They are there merely to explain the underlying rationale for particular sections of the Statement. As can be seen from the text, it assumes endorsement by Parliament. The Appendices referred to are not included here. 24 Richard Gordon QC and Professor Sir John Baker

5. This Constitutional Reform Framework Statement is designed to provide an overall framework for constitutional reform in the UK by means of the introduction of monitoring and scrutiny procedures as set out in this Framework Statement. The Statement has been approved by both the House of Commons and the House of Lords and drawn up following extensive consultation. Appendix 1 provides a list of those consulted. Appendix 2 contains a summary of the public consultation responses. Appendix 3 summarises Parliament’s consideration of these responses and the reason for adopting or not adopting particular proposals.

Introduction (Paragraphs 1-5)

The task of achieving greater consistency and effectiveness in the machinery of constitutional reform is made more complicated by the UK system of Parliamentary sovereignty which makes enforcement of proposed reform measures very difficult. Parliament, after all, is sovereign and the Executive is chosen from Parliament so that there is no proper separation of powers. Moreover, Parliament is, in a number of respects, dominated by the Executive so that true Parliamentary controls over the Executive’s legislative programme (which may have considerable implications for constitutional reform) are, to an extent, ineffective and certainly not binding.

There are, perhaps, four broad models for seeking to improve the machinery of constitutional reform. These are: (i) a written Constitution, (ii) a new constitutional settlement, (iii) a continuing programme of reform or (iv) a Constitutional Reform Framework Statement. The first two models presuppose that constitutional reform will be achieved in a ‘year zero’ or some form of constitutional moment. The latter two are predicated on an understanding (whether right or wrong) that constitutional reform – like devolution - is a process rather than an event.

Of the last two models a continuing programme of reform (possibly based on the current excellent system of Committee recommendations) is not excluded by a Constitutional Reform Framework Statement (‘CRFS’). The two can work in harmony but a CRFS is deployed here to achieve that which the current reform programme cannot by itself achieve. First, although intended to be approved by Parliament it is independent of Parliament. Secondly, the CRFS is intended to have ‘teeth’ and in principle to provide more effective constitutional guarantees than the Committee system can, by itself, achieve. Thirdly, the system of Committees is, almost by definition, both restricted and overlapping. The work of the Scrutiny Body proposed to be set up under the CRFS has the widest possible remit.

A further and final advantage of a CRFS over a codified Constitution is that the former, to be entrenched, requires the jettisoning of Parliamentary sovereignty; the latter is entirely compatible with Parliamentary sovereignty and seeks to work with it rather than against it.

25 Richard Gordon QC and Professor Sir John Baker

The document is deliberately short so as to avoid the charge that it is the first step to a written Constitution.

Criteria for identifying areas for improved constitutional reform processes

6. The definition of constitutional reform adopted in this Statement is ‘any change that affects the operation of the Constitution.’ For the purposes of this document, the constitution comprises ‘the arrangements by which the United Kingdom is governed.’

7. Given the breadth of these definitions, it will be obvious that not all future or existing laws, practices or other rules which have an effect on the constitution will be required to be the subject either of independent scrutiny or independent monitoring. Only such laws, practices or other rules which (in the case of future proposals) are likely to have a significant effect on the constitution or (in the case of existing laws, rules or other practices) are likely to have a significant effect on the constitution but lack clarity should be required to be the subject of appropriate independent scrutiny or independent monitoring. It is also possible that, outside the specific subject areas itemised below, there will be areas that do have a particular potentially significant effect on our constitutional arrangements and which do, therefore also need to be scrutinised according to appropriate independent scrutiny and monitoring procedures.

8. Underlying the need for independent scrutiny and monitoring of legislation and other laws, rules and practices likely to affect the constitution are two important considerations. First, there is the importance in a democratic society of ensuring that there is a measure of constitutional protection against the exercise of governmental or other power that would have the effect of significantly affecting the constitution without a broad consensus that this should occur. Secondly, there is the need to ensure that laws, rules or other practices are sufficiently clear and that their constitutional implications have been fully thought through. Both these considerations apply to future legislative and other proposals but where there is a lack of clarity they may apply also to existing laws, rules or other practices.

9. Proposals for laws, rules or other practices which are presumed to have the potential to have a significant effect on the constitution and therefore subject to the appropriate monitoring and scrutiny procedures include any of these proposals likely, in a new way, to affect whether by legislative intent or by necessary implication:

• The constitutional relationship between the Executive and Parliament, the Executive and the Civil Service, the Executive and the Judiciary, or the Judiciary and Parliament. • The constitutional relationship between the Executive and any of the Devolved Institutions, Parliament and any of the Devolved Institutions or the Judiciary and any of the devolved institutions. 26 Richard Gordon QC and Professor Sir John Baker

• The operation or status of political parties in the United Kingdom. • The civil liberties of the subject. • The structure and powers of local government insofar (outside England) as they fall within powers reserved to Parliament. • The position of the monarchy. • The electoral system.

10. Exceptionally, other proposals for laws, rules or other practices which are considered to affect the operation of the constitution in a new and significant way will be subject to the appropriate monitoring and scrutiny procedures.

11. Existing laws, rules or other practices are subject to the monitoring and scrutiny procedures where their content or effect is unclear in terms of their constitutional effect and need to be clarified.

Definitions (paragraphs 6-11)

It is proposed (see paragraph 6) that the broadest of definitions is attached to the notion of that which amounts to constitutional reform. As is made clear in succeeding paragraphs it is the significance and effect of constitutional change that matters and, within that overall structure, the significance and effect of new changes on existing constitutional relationships. It is for consideration whether the constitutional relationships referred to here are sufficiently comprehensive. However, they have been designed deliberately broadly so that other relationships that affect the institutions of the UK Constitution (as, for example, the supra-national effect of the EU) are implicitly covered.

There are really three areas that need to be addressed and separated out in terms of what they require for improved scrutiny and monitoring. These are: (i) proposals for new primary legislation, (ii) proposals for new rules and practices that are not primary legislation and (iii) existing laws, rules and practices.

Primary legislation is the subject of extensive Parliamentary scrutiny but (given the control of the Executive over Parliament) there needs to be a strong independent element. Moreover, scrutiny and monitoring processes themselves need to have developed overall criteria that can be applied at the earliest stages by an independent monitoring body in liaison with the various Parliamentary bodies that exist.

Other rules and practices that are not primary legislation seem to develop on a somewhat ad hoc basis. A recent example is the Cabinet Manual (or Cabinet Office Manual as the Constitution Committee of the House of Lords has suggested it might be called). This seems to have been an initiative of the Cabinet Office but its potential for affecting the constitution is, at least potentially, considerable. Such proposals need also to be monitored and subjected to scrutiny but not in the same way as legislation that proceeds through Parliament.

27 Richard Gordon QC and Professor Sir John Baker

Finally, in a framework designed to improve the machinery for constitutional reform it is more difficult to reform old laws and practices than it is to monitor the effect of current reform proposals. However, there is a need to ensure that the lack of clarity that bedevils much of our existing constitution (as, for example, in respect of the scope and reach of Conventions and in the constitutional relationship between the judiciary and Parliament) is removed. This is a delicate task but it is one that is desirable given the lower threshold of deference to existing institutions that now prevails than in the past. This part of the Scrutiny Body’s work could also usefully encompass the review of constitutional legislation, rules and practices that were not regarded or treated as such by the Government before being enacted or, as the case may be, proceeded with.

Monitoring and scrutiny procedures

12. It is intended that an independent monitoring and scrutiny body (‘the Scrutiny Body’) will be set up to undertake the appropriate monitoring and scrutiny procedures. The composition of such body will reflect Parliament’s intention that a representative balance be achieved so that it includes (whilst not necessarily being confined to) Members of Parliament, Members of the House of Lords, members of the Devolved Institutions, Senior Civil Servants, and other Constitutional specialists.

13. Where there is a proposal for primary legislation in the United Kingdom that is intended to introduce constitutional reform or which may, in whole or in part, result in constitutional reform there shall be a constitutional presumption that those responsible for introducing the legislation will comply with the following monitoring and scrutiny procedures:

• Where there is any doubt as to whether the proposed legislation may involve issues relating to constitutional reform, those responsible for the proposals will consult the Scrutiny Body and obtain a view. If the view is that constitutional reform is involved then the further stages of the monitoring and scrutiny procedures will be adhered to.

• All primary legislation that is of a constitutional nature (as defined in the main body of paragraph 13 above) will be the subject of wide public consultation and debate as well as consultation of those directly affected by the proposals. Consultation will be undertaken in a systematic manner and will include the publication of a green paper and a white paper.

• All such legislation shall be published in draft and subjected to pre-legislative scrutiny by the Scrutiny Body as well as by such select committee or committees

28 Richard Gordon QC and Professor Sir John Baker

of the House of Commons or Joint Committee or Joint Committees of both Houses of Parliament as may be appropriate.

• Sufficient time should be allowed for Parliamentary scrutiny.

• There shall also be post-legislative scrutiny of such legislation by the Scrutiny Body and by the appropriate Parliamentary committee or committees.

• Scrutiny of such legislation shall be conducted by the Scrutiny Body (and may be so conducted by the appropriate Parliamentary Committees) by reference to scrutiny standards and check-lists to be developed by the Scrutiny Body and approved by both Houses of Parliament. Without prejudice to the content of such standards and check-lists they will address relevant procedural requirements, requirements designed to ensure conformity with the requirements of EU law, the rule of law, the protection of individuals and the protection of democratic values.

• At the conclusion of its pre-legislative scrutiny process the Scrutiny Body will make recommendations following such further consultation as it considers is necessary and taking into account the results of Parliamentary pre-legislative scrutiny. The Scrutiny Body shall make a recommendation or recommendations. There is a constitutional presumption that such any such recommendations will be implemented in the legislation.

14. The constitutional presumptions in paragraph 13 may be departed from in exceptional situations but those responsible for introducing the legislation should publicly explain why the appropriate monitoring and scrutiny procedures have been departed from. Without such public explanation there is a breach of the terms of this Framework Statement which shall be publicly recorded.

15. Where there is a proposal for other laws, rules or practices that amount or may amount to constitutional reform as defined in paragraph 6 of this Framework Statement there shall be a constitutional presumption that those responsible for introducing such proposals will comply with the following monitoring and scrutiny procedures:

• Where there is any doubt as to whether the proposal may involve issues relating to constitutional reform, those responsible for the proposal will consult the Scrutiny Body and obtain a view. If the view is that constitutional reform is involved then the further stages of the monitoring and scrutiny procedures will be adhered to.

29 Richard Gordon QC and Professor Sir John Baker

• Laws, rules or practices not constituting primary legislation but amounting to constitutional reform must be published and submitted to the Scrutiny Body. The Scrutiny Body shall by reference to scrutiny standards and check-lists to be developed by the Scrutiny Body examine such proposals and shall, adopting such procedure as it considers are necessary including wide public consultation as well as consultation with those directly affected by the proposals, make such recommendation or recommendations as it considers are necessary. In making such recommendations the Scrutiny Body must have regard to any recommendations made in a Report by a Select Committee or Committees of the House of Commons or of the House of Lords or of a Joint Committee of both Houses in relation to such proposals. There is a constitutional presumption that such any such recommendations will be implemented prior to the adoption of the proposals in question.

16. The constitutional presumptions in paragraph 15 may be departed from in exceptional situations but those responsible for introducing the proposals should publicly explain why the appropriate monitoring and scrutiny procedures have been departed from. Without such public explanation there is a breach of the terms of this Framework Statement which shall be publicly recorded.

17. Where there is an existing law, rule or other practice that affects or may affect the constitution in one or more of the ways set out in paragraph 9 of this Framework Statement, then if the effect of such existing law, rule or other practice on the constitution is unclear and needs, in the opinion of the Scrutiny Body, to be clarified the Scrutiny Body shall examine the existing law, rule or other practice in question and, by reference to scrutiny standards and check-lists to be developed by the Scrutiny Body examine such laws, rules or other practices and shall, adopting such procedure as it considers are necessary including wide public consultation as well as consultation with those directly affected by the existing laws, rules or other practices, make such recommendation or recommendations as it considers are necessary. In making such recommendations the Scrutiny Body must have regard to any recommendations made in a Report by a Select Committee or Committees of the House of Commons or of the House of Lords or of a Joint Committee of both Houses in relation to such laws, rules or practices. There is a constitutional presumption that such any such recommendations will be acted upon within a reasonable time.

18. The constitutional presumption in paragraph 17 may be departed from in exceptional situations but the Government should publicly explain why the appropriate monitoring and scrutiny procedures have been departed from. Without such public explanation there is a breach of the terms of this Framework Statement which shall be publicly recorded.

30 Richard Gordon QC and Professor Sir John Baker

19. The Scrutiny Body shall also be required to develop procedures for receiving proposals for constitutional reform from the wider public, for the consideration of such proposals and for their transmission to Parliament with, where it considers it appropriate, general recommendations for the further consideration of such proposals by Parliament or of proposals made by the Scrutiny Body independently to Parliament. There shall, however, be no requirement for Parliament to consider or to implement proposals or general recommendations received by it from the Scrutiny Body in this way.

Monitoring and scrutiny procedures (Paragraphs 12-19) The monitoring and scrutiny procedures outlined here are exemplary rather than exhaustive. Their main features are to provide for different models for the different types of constitutional reform, to provide for the creation of a Scrutiny Body with strong recommendatory powers that may develop into quite strong constitutional conventions in terms of their enforceability. Membership of the Scrutiny Body may require careful consideration. It is for further consideration whether current selected members of the senior judiciary might be expected to serve on such a Body or whether issues involving the separation of powers might arise. For the present, there is no provision for the senior judiciary to become a member of the Scrutiny Body. In terms of a general framework the development of scrutiny standards and checklists could be a useful innovation. They are currently used in some Commonwealth jurisdictions; most notably in New Zealand. Here, the constitutional presumption would be that if standards designed broadly to ensure constitutional protection were proposed to be departed from, the Scrutiny Body would be in a position to recommend that they be adhered to. Unless the Government had a strong and convincing reason for not following the recommendation this would be publicly recorded as a breach of the Framework Statement. In time it is likely that this would come to be seen as an extreme form of censure and one that (rather like a declaration of incompatibility under the Human Rights Act 1998) the Government would seek, first, to avoid but, thereafter, to comply with by taking remedial action to ameliorate the effects of such censure. It is intended that the Scrutiny Body would be not merely reactive but also proactive in that (see paragraph 19) it would provide a communication channel for the wider public so as (hopefully) to trigger greater public engagement in the consideration of constitutional issues. It could also initiate reform proposals independently. Although the Scrutiny Body would be empowered to make appropriate recommendations on constitutional reform proposals submitted to it or made by it independently, it is thought that there is a material difference between a formal constitutional reform process reactive to Governmental measures on the one hand and, on the other, a requirement on Parliament or on the Government to give practical effect to reform proposals from the public or to Scrutiny Body recommendations that further consideration to be given to such proposals.

5 April 2011

31 Professor Jeffrey Jowell and Professor David Feldman

Professor Jeffrey Jowell and Professor David Feldman Written evidence by Professor Jeffrey Jowell QC (CRP 2)

Does constitutional legislation have a special character and therefore require special treatment or procedures? 1. Walter Bagehot said: “There are two great objects which every constitution must obtain to be successful, which every old and celebrated one must have wonderfully achieved: every constitution must first gain authority, and then use authority; it must first win the loyalty and confidence of mankind, and then employ that homage in the work of government”. The English Constitution (second ed.1925, p.4). 2. I agree with Bagehot that a constitution, codified or not, to be successful, requires the “loyalty and confidence” of the people. This is because the constitution provides the rules of the game, the framework for all official decisions. If these decisions are to be accepted as legitimate, even though you may not agree with them, then the framework of decision-making must command respect and general acquiescence. The constitution therefore serves as a “device for precommitment or self-binding”2; a “tie imposed by Peter when sober on Peter when drunk”3. A constitution involves a Ulyssean tie to the mast, in order not to be tempted or distorted by short-term political gains or passions.4 A constitution is a framework for, rather than an instrument of political decision-making. 3. For that reason, virtually every country with a written constitution requires some special procedure for constitutional amendment. 4. It follows that, provided it can be said that the UK has a constitution, albeit uncodified, that there ought to be some special procedure for constitutional amendment. Do we have a constitution? 5. Although it is hardly necessary to labour the point before this Committee, there can be no doubt that we do have a constitution, albeit not set out in a single document.5 Again needless to say, it is not accurate that the British constitution is unwritten. It is not codified – with all the rules and principles set out in one document – but a

2 J.Elster, Ulysses Unbound: Studies in Rationality, Precommitment and Constraint (2000) 3 Hayek 4 J. Elster, Ulysses and the Sirens (1984) 5 “It has so often been said that Britain has no written constitution that we are in danger of believing it. Britain has an extremely elaborate constitution, almost all of which is written”. Jonathan Sumption OBE QC, “The Constitutional Reform Act 2005, in Judicial Appointments: Balancing Independence, Accountablity and Legitimacy (2010). 32 Professor Jeffrey Jowell and Professor David Feldman

great deal of its content is based on written sources, including many statutes and decided cases expressing the underlying values of our democratic arrangements, and in ‘soft law’ documents such as the newly drafted Cabinet Manual of 2011, resolutions on ministerial responsibility passed by each House of Parliament in 1996, and many others, including constitutional conventions. The British constitution is therefore a patchwork constitution, but a constitution nonetheless. 6. Our constitution is not purely political, in the sense of reflecting only “what happens”, which is a result of the balance of political power at a particular time.6 Nor is our constitution ultimately based, as Bognador asserts, on just one rule which he says can be summed up in 8 words: “What the Queen in Parliament enacts is law”,7 supplemented by the informal checks of conventions which are determined not by law but by “political vicissitudes”. 7. Our constitutional fabric is richer than that by far. It may be a patchwork, but it does not consist of only one legal rule or principle which affirms the superiority of just one branch of government, which fails to afford any particular status to the other branches of government or to guide the relations between them. On the contrary, it consists of a set of deeply-embedded structures, procedures, normative values and principles which set out how public power should be exercised and constrained and which govern the relationship between the individual and the state in a constitutional democracy. Can constitutional legislation be defined (Question 11)? 8. Given that we do have a constitution, and that it is contained in laws, conventions, principles and practices, constitutional legislation is that which seeks to amend or extend that constitution. Constitutional legislation therefore seeks to establish or alter the framework for public decision-making and the principles governing the relationship between decision-making bodies and between those bodies and the individual. 9. It would be foolhardy to claim that there is always a bright line between legislation that is constitutional and non-constitutional, but a look at any codified constitution will serve as a reliable guide. A codified constitution normally begins with a bill of rights, then establishes the principal structures of government –the legislature (unicameral or bi-cameral), the executive and the judiciary, and the relationship

6 J.A.G. Griffith, “The Political Constitution” (1979) 42 MLR,1. 7 V. Bognador, The New British Constitution (2009), p.13. 33 Professor Jeffrey Jowell and Professor David Feldman

between them. Devolution to regions and the status of local government are also contained in these constitutions, as are electoral systems. Some countries, but not all, then go on to “constitutionalise” public bodies, in the words of the South African Constitution, “supporting constitutional democracy” (such as the Ombudsman, Auditor General, Anti-Corruption Commission and Electoral Commission). Constitutions may also, in more or less detail, deal with matters such as the Security Services, Attorney General and Public Prosecutor, Central Bank and regulatory bodies. The country’s regional and international obligations, including treaty-making powers and procedures may also be included, as well as emergency powers. 10. None of the above issues are foreign to our system of governance, despite our failure to describe them all, and the interactions between them, in any one overriding document. Any legislation which seeks to amend or abolish the function of any one of them could therefore be said to have constitutional implications – some more significant than others.

How can (a) those legislative proposals which are constitutional, and (b) those which merit special procedures, be identified?

11. Although some legislative proposals will obviously seek to alter the constitution (such as proposals for the abolition of a second Chamber), others might be thought either not to be constitutional (e.g the creation of a new Ombudsman) or, if constitutional, not of high constitutional significance. 12. In order to preserve the virtues of a flexible constitution I would not think that a change to all public decision-making bodies needs to engage special procedures (e.g to consider a proposal to alter the functions of our Parliamentary Commisisoner for Administration). However, some changes, such as an alteration to the appointment of judges (e.g. by requiring Parliamentary approval) would have significant constitutional implications and would in my view merit special procedures of consultation. 13. Who decides whether the proposal has sufficiently significant constitutional importance to merit special procedures? In some countries (e.g Austria) the decision as to whether a legislative proposal is of fundamental constitutional importance is decided by the Constitutional Court, which then has the power to order the holding of a referendum on the proposal. A more pragmatic way of identifying constitutional

34 Professor Jeffrey Jowell and Professor David Feldman

legislation could be by means of the establishment of a body such as a Joint Parliamentary Committee, or a cross-party independent Committee, perhaps consisting of some independent constitutional experts. Such a body could decide, or advise, whether a given legislative proposal was (a) of a constitutional nature and, if so, (b) sufficiently important to merit special treatment.

What special procedures, in or out of Parliament, should be provided for constitutional legislation (Questions 7,8,9,10 and 12)?

14. Assuming that ‘significant’ constitutional legislation can be identified, what procedures should be adopted? In countries with written constitutions, the constitution itself normally provides rules for its revision (normally a two thirds majority in Parliament, or, in France, 3/5ths - and/or the possibility of a referendum). The Venice Commission’s recent report on Constitutional Amendment deals fully with the issue in Council of Europe States.8 15. In France, a bill seeking to revise the constitution must go before the “Commission de Lois” of each House, which scrutinizes the Bill and makes recommendations about the required action. Under section 46 of the French Constitution what are called “organic statutes” 9 must be adopted under a special procedure whereby the bill must be debated no less than 15 days after it is sent to Parliament. In addition, judicial review by the Conseil Constitutionnel is compulsory. 16. In countries with uncodified constitutions, constitutional legislation does not normally require any special discussion, participation from outside of Parliament, delay, special majority or referendum. In Israel the Basic Law (equivalent to an enforceable Bill of Rights) was passed without any special measures or majority. Similarly, the New Zealand Bill of Rights was passed without any special procedure to ensure cross-party support, or referendum.10 17. By contrast, however, in Australia recently a special cross party independent body was established to organise a widespread consultation and deliberative exercise to

8 Constitutional Amendment, Report of the Council of Europe’s Commission for Democracy Through Law (“The Venice Commission”), CDL –AD (2010) 9 Relating to the length of the mandate of the Asssembly, number of members,, the election of the President of the Republic, the status of the Judiciary and the Conseil Constitutionel and the budget. 10 An exception concerns the New Zealand Electoral Act 1993, section 268 of which lists six key provisions of the Act which may not be amended or repealed otherwise than by 75% majority vote of the members of the House of Representatives, or with majority of support at a national referendum. Paradoxically, that section is not entrenched and may be repealed by an ordinary Act of Parliament. .See Philip Joseph, Constitutional and Administrative Law in New Zealand (3d ed.) 2007. In practice, however, some constitutional issues (such as the abolition of the Monarchy) could not be achieved in New Zealand without a clear voice of the people in its support. 35 Professor Jeffrey Jowell and Professor David Feldman

study attitudes to a potential new bill of rights. And the Northern Ireland Human Rights Commission has also recently conducted a massive consultation exercise to determine support for a Northern Ireland Bill of Rights. 18. The lack of special measures in relation to constitutional change in countries without codified constitutions is justified on the basis of the doctrine of Parliamentary supremacy and/or the desirability of flexible incremental constitutional change. However, it is by no means true that amendment to codified constitutions is always difficult or impossible in practice to achieve. As the Venice Commission Report on Constitutional Amendment shows11, written constitutions differ radically in their capacity to provide flexible constitutional change. They also offer a variety of available procedures which might enrich our own. These include: • a time delay for the introduction of constitutional amendments, • the need for special consultation procedures, in or out of Parliament, • an higher quorum or increased qualified majority in Parliament, • a national referendum and, in federal or devolved systems, additional referendums in the regions, • the dissolution of Parliament and the convening of a special body to adopt the amendment, • the involvement of the constitutional court, and • absolute entrenchment for some provisions (normally some rights in the bill of rights). 19. It may be that, in some cases, manifesto commitment to constitutional legislation may provide a sufficient indication of its public endorsement. However, especially in cases where urgent implementation of the provision is not required, the adoption of some of the above techniques could surely serve to consolidate the legitimacy of the changes once enacted. Additional consultation, for example, would not only aim to gain wider general acceptance of the proposals, but would also allow time to ensure that the most appropriate, workable and sustainable constitutional measures are adopted. Where the issue raises a point of democratic principle (such as, with judicial appointments, the independence of the judiciary) time should be provided for full consultation with the judiciary, the legal profession and others, and to consider whether we are abiding by the common standards of European democracy.

11 Note 7 above. 36 Professor Jeffrey Jowell and Professor David Feldman

20. All this would go some way to ensuring that measures which provide the framework for official decisions, the rules of the game, receive the “loyalty and confidence” of the people, which Bagehot correctly sought for any constitution - codified or not. March 2011

37 Professor Jeffrey Jowell and Professor David Feldman

Oral evidence, 30 March 2011, QQ 48-78

Evidence Session No. 2 Heard in Public

Members present

Baroness Jay of Paddington (Chairman) Lord Crickhowell Lord Hart of Chilton Lord Irvine of Lairg Lord Norton of Louth Lord Pannick Lord Renton of Mount Harry Lord Rodgers of Quarry Bank

______

Examination of Witnesses

Professor Jeffrey Jowell, [Professor of Law, University College London and Director of the Bingham Centre for the Rule of Law] and Professor David Feldman, [Rouse Ball

Professor of English Law, University of Cambridge].

Q48 The Chairman: Good morning Professor Feldman and Professor Jowell. Thank you very much for coming and thank you, Professor Jowell, for the very helpful memorandum that have sent to us. We are sound-recording this session, so if you would be so kind when you first speak as to identify yourselves, that is very helpful for the transcription process. We were grateful for your memorandum and I understand that you have made some small—or major?—adjustments to that. Professor Jeffrey Jowell: Significant, but not a change of view Q49 The Chairman: Would it be helpful for you to point those changes out to us, or are they going to emerge in the course of conversation? Professor Jeffrey Jowell: I would be happy to point out what my position is if there is any doubt. Would you like me to announce who I am first? The Chairman: Please announce who you are first. I am sorry, I jumped the gun there. Professor Jeffrey Jowell: I am Jeffrey Jowell. I am director of the Bingham Centre for the Rule of Law and Professor Emeritus at University College London. I practise at Blackstone Chambers and I am the United Kingdom member on the Council of Europe’s Commission for Democracy through Law, which is known as the Venice Commission. 38 Professor Jeffrey Jowell and Professor David Feldman

My position, very quickly, is that a constitution, even when uncodified, provides the rules of the game and a framework for decision-making rather than an instrument of decision- making. It is a pre-commitment to a process of decision-making. I believe, with Bagehot— this is in both papers—that any constitution must first gain authority before it uses it. It does this, as he puts it, by winning the loyalty and confidence of the people and acceptance of the process, irrespective of the substance of the political choice that is then made. For that reason, I believe that it is both desirable and possible to have techniques for identifying in advance constitutional measures that are sufficiently significant to merit special procedures. I also believe that it is possible to have a range of special procedures that might fit the particular measures, which would thus enhance their legitimacy. Whatever its defects, I believe that the benefit of our uncodified constitution, together with parliamentary sovereignty and representative government, is that we need not be overly rigid about subjecting every minor constitutional change to special constitutional procedures: a referendum, a specific majority, or whatever it might be. Nor do I think that there is always a bright line as to what is constitutional or not, or, if it is constitutional, whether the proposal merits special measures. But I nevertheless believe that it is possible to identify significant constitutional measures in advance and to seek to enhance their legitimacy and acceptance by special procedures in a flexible fashion. Q50 The Chairman: That is extremely helpful. You will understand that we are particularly interested in the nature of procedures, being practical legislators round this table. Many people will want to return to that. Professor Feldman, perhaps I could ask if you if you wanted to make a short opening statement, too. Professor David Feldman: Thank you. I am David Feldman. I am the Rouse Ball Professor of English Law at the University of Cambridge, Fellow of Downing College and currently the specialist adviser to the Joint Select Committee on the Detention of Terrorist Suspects (Temporary Extension) Bills. Q51 The Chairman: That is something that we will be considering next week. You had better stay with us until then. Thank you very much. I suppose the bottom line question for both of you is how you define measures of constitutional reform and how you identify them in advance, as you said, Professor Jowell. The problem about having the loyalty and confidence of the people is that it is difficult in a democratic society, particularly in the circumstances that we find ourselves in at the moment, which may or may not persist, where governments are acting not even on the basis of a manifesto that was put to the populace. Professor Jeffrey Jowell: My view is that the decision ought to be made on each individual case. There ought to be some way to trigger an examination, preferably through some kind of committee. There are a number of countries that have such committees. I mentioned one in France—the Commission des Lois. Whether it is this Committee, a joint Commons-Lords committee or an external committee of experts plus Members of Parliament, it certainly is possible to have that body identify first of all what is a constitutional measure. Looking at written constitutions gives you a pretty good idea of what constitutional measures are. We have them all and I have set them out. But everything that is constitutional in other countries need not necessarily be constitutional here, or if it is constitutional it need not necessarily be of such significance as to require special procedures. For example, some countries these days have ombudsmen in their constitutions. Is that a constitutional measure? Perhaps. I regard a constitutional measure as a matter that decides the framework of decision-making rather than the substance, plus the principles. I have set my definition out in my second

39 Professor Jeffrey Jowell and Professor David Feldman paper. I think it is a much better definition than that in my first paper, which I withdraw totally. Q52 The Chairman: Is this paragraph 8 of the second paper? Professor Jeffrey Jowell: Yes. Other countries have their corruption committees—that is pretty new these days—or their standards in public life committees as part of their constitution. That may or may not be constitutional. Once it is in place, perhaps to remove that kind of body would be constitutional. Then the question is whether the change is significant enough. In other countries, with written constitutions, you have to go through the two-thirds majority procedure, or whatever it is. I suggest that you should take it case by case. You ask whether it is constitutional and whether it is so significant that it really ought to merit further delay and discussion. Again, we have a range of examples of measures that subject constitutional amendment to particular scrutiny. The Venice Commission, which I mentioned, has an excellent paper on what other countries do. It is a myth that when you have a written constitution, amendment is virtually impossible. That is not the case at all. The committee, or whatever it might be, might decide that this was a constitutional matter, but not really significant enough to go through a referendum or a two-thirds majority, but they might want to give it a delay of 15 days and look at it a little more carefully, or require a white paper, or whatever it might be. Q53 The Chairman: The problem for our system seems to be that people find it more or less impossible to put it into statute. Before you came in this morning we were discussing the problems of the Fixed-term Parliaments Bill and the difficulties that seem to arise in our system of establishing anything in statute that constrains the legislation in that way. Is this an inherent difficulty of our particular system? What is the problem? It is different from your example about a written constitution. Professor David Feldman: I think it presents a particular problem in our very odd sort of constitution, which has, at least in theory, a doctrine of almost unlimited parliamentary competence when it comes to legislation. The particular version of that which we have, but which is not shared by some other jurisdictions that also have what they call the idea of legislative sovereignty of their Parliament, is that we adopt a model that prevents the Parliament, in the exercise of its unlimited authority, from limiting when and how subsequent Parliaments can act on particular matters. That is a problem, but it is not an insuperable one. I suggest that maybe the answer is to try it and see what happens. This is pragmatic rather than principled, perhaps, but it seems to me that we simply do not know what courts will say, for example, about a provision that makes it absolutely clear on its face that it is intending to provide a procedural restriction on what future Parliaments may do or how they may do it. It is not clear what courts would do faced with such an expressed and unambiguous statement in the body of a public bill. Q54 Lord Crickhowell: This is the second session in which we have had a proposal for a committee of some kind. It is not just a theory of parliamentary sovereignty. To get from A to B, to put in place such a committee, you have to have the agreement by the elected government of the day—in this case, it has to be decided by the two parties that support the Government. I do not know if you can tell us from the past, but I feel sure that these suggestions have been frequently put forward. Has anyone ever shown any signs of going down this route? I spent quite a long time in the other place as a minister. I find it rather hard to imagine that, presented with a proposal from this Committee to set up such an organisation or structure, the present Government, in the midst of a whirlwind or hurricane

40 Professor Jeffrey Jowell and Professor David Feldman of constitutional change, not always very soundly produced, is going to say, “What a very good idea. We will go down this path and accept it”. How do you get from A to B? Professor David Feldman: One tries, to start with. If one does not try, it will not happen. If one tries, it might succeed. It will not succeed quickly, because this is not the sort of place where things do succeed quickly. I work in the University of Cambridge, having previously worked in this institution. It is probably the only place in this country that could make this place look normal. Don’t tell them I said that. Things happen very slowly. One needs to take the first step, because otherwise the others will not follow. I do not say that it will necessarily succeed. The truth is that quite apart from all the other problems that governments have to deal with, there is an intrinsic conservatism about constitutional change in all governments of whatever hue. The reason is that all governments, by virtue of being governments, have succeeded to a greater or lesser extent through the mechanism of the existing constitutional arrangements. That is a powerful reason for not being over-keen on constitutional change. The second reason for not being too keen on constitutional change is that one never knows when one might want to do something really extraordinary. Governments are excessively reluctant to limit their capacity to respond to the more or less inconceivable. Professor Jeffrey Jowell: The argument that one employs when one is arrogantly advising foreign governments how to run their affairs is normally to say: “You will be in opposition one day, you would like this provision, it is right and therefore let’s go for it”. There is an obstacle. The reason that I have spent time boring you in my paper with the section on whether we have a constitution—which seems a bit of a stupid question to you, because you know that we do—is that so many people constantly still say these days that we do not have a constitution, so there is nothing that is constitutional. Professor John Griffith of the London School of Economics used to say that the constitution is what happens, and even if it does not happen, it is constitutional. Even the greatly respected Vernon Bogdanor says the constitution only has one rule, which is that what the Queen in Parliament does is perfect. You know as a Constitution Committee that there is much that is constitutional in terms of principles, as well as laws, legislation, conventions and all the rest of it that makes up the fabric of our constitution. It is not very different, except for the fact that it is not written down or codified in any one place, from constitutions in other countries. That is the first obstacle that one has to go through: a) that there is such a thing as a constitution; and b) that there is therefore legislation in respect of constitutional measures, which needs greater consideration because they provide the framework for our future decisions. Q55 Lord Pannick: I share the view that the practical problem is that once a procedure is laid down for special constitutional measures, however they are defined, any government, when it is politically convenient and desirable to do so, will seek to defy those principles if they stand in the way of the government achieving what they want to achieve. The real question is whether you can make these principles binding. I would very much welcome Professor Jowell’s observation on Professor Feldman’s comments as to whether, if an Act of Parliament laid down a procedure for future constitutional measures, however defined, the courts would regard that Act as laying down constitutional principles that would bind a future Parliament. The Chairman: I think Lord Irvine was also anxious to pursue this point. You were catching my eye. Lord Irvine of Lairg: I think my point is slightly an antecedent to Lord Pannick’s point, which is highly relevant as well. I know this Committee wants to be severely practical and

41 Professor Jeffrey Jowell and Professor David Feldman helpful, but it is not that easy in practice to get a new parliamentary committee, or any other special procedures or structures. This Committee, however, exists. Our recent reports have, gratifyingly, had strong effects and influenced debate. Do you think it would be helpful if this Committee, while recognising that the categories or particular examples of constitutional legislation are not closed, tried to set out a list of what we as a Committee would invariably regard as constitutional? When he gave evidence to us a week ago, Professor Sir John Baker offered a list which I thought was helpful. I will just read it out again: “Any alteration to the structure and composition of Parliament. Any alteration to the powers of Parliament, or any transfer of power, as by devolution or international treaty, which would in practice be difficult to reverse. Any alteration to the succession to the Crown or the functions of the monarch. Any substantial alteration (I put in the word ‘substantial’ from now on because it is very difficult to draw lines) to the balance of power between Parliament and the government, including the conferment of unduly broad or ill-defined powers to legislate by order. Any substantial alteration to the balance of power between the central government and local authorities. Any substantial alteration to the establishment and jurisdiction of the courts of law, including any measure that would place the exercise of power beyond the purview of the courts, or which would affect the independence of the judiciary. Any substantial alteration to the establishment of the Church of England. Eighthly, any substantial alteration to the liberties of the subject, including the right to habeas corpus and trial by jury”. Even that list, Sir John continued, “does not deal with matters that are currently dealt with under the prerogatives, such as the abolition of great offices of State, and it may be that those have to be dealt with in some way as well”. My question, essentially, is: do you think it would be helpful if this Committee offered some such list, recognising that it could never be regarded as exhaustive, but such that it would be the current view of the Committee? Do you have any view about Sir John’s list? The Chairman: I am sorry, I had misunderstood Lord Irvine catching my eye at that moment. I thought he was going to address the same point that Lord Pannick did about the judicial process. Lord Irvine of Lairg: This is the antecedent point. The Chairman: Exactly. We will have a reversal of content but a progression of thought. Professor Jeffrey Jowell: On the antecedent point first, this Committee is perfectly placed to do so. If it were, ideally, a joint Commons-Lords committee, it would be an even better place, but I accept one must be practical. I greatly admire, if I may say so, what has been done recently by this Committee to pluck out what is really proposed legislation of a constitutional nature, particularly in the Public Bodies Bill, which has constitutional elements in it. That has shown that it is not rocket science: I believe it is quite easy in practice—or often easy enough—to determine what is a constitutional matter, although there will of course be grey areas. Secondly, a list of that kind is fine up to a point. I like that word “substantial” alteration, along the line that has been suggested. My point is that not every minor tinkering merits special procedures. They are all key framework decision-making bodies or about the relationship between them. Finally, we come down to the human rights principles—there may be other principles as well. Of course, it will always leave out some bodies. For me, an issue that really ought to have received much more constitutional attention than it had was the setting up of the Bank of England’s Monetary Policy Committee. You will recall that in 1997 there was not even a manifesto commitment to that major measure, passing off an

42 Professor Jeffrey Jowell and Professor David Feldman important part of Parliament’s powers—control of inflation—to the Bank, with barely any scrutiny as it came in and went through very quickly. It may be that it had to be done as an emergency measure, but I doubt it. There may be other bodies, as well as the Bank of England, that we now regard as part of our constitutional structure, for example some of the anti-corruption bodies. That list is fine up to a point, and very helpful. However, there will be other measures that are substantially constitutional. Professor David Feldman: May I come in on that, before we get on to the second question, otherwise I will forget it? I agree entirely with what Professor Jowell has said. I also agree, with the greatest respect, with what my colleague Sir John Baker said. However, I think that the devil is in the word “substantial”. This is a good example of three specific problems when we are talking about the constitutional process. One is the difficulty in working out what is constitutional; and that can now be subdivided into two, because we have to decide what is substantial or less substantial. Your predecessors raised the difference between first- class and second-class constitutional implications in the 2002 report and to some extent this structured their view of the remit. I remember Lord Norton, I think, was chairing the Committee at that stage and was instrumental in introducing this idea of a principal principle. That is a complicated thing and it calls for judgment. Secondly, it is quite hard to know what reform means here. There are different degrees and types of change. I do not want to pursue that unduly, but change is happening all the time, in every constitution, simply as a result of normal negotiation between institutions and individuals. One needs to think about what sort of change you are talking about providing procedural rules for. Thirdly, it is hard to talk about a process when really there is no process. We have a legislative process and we all know what needs to happen for something to become an Act of Parliament; but we do not have a process for specific kinds of reform. Having said that, it is not entirely irrelevant to note that both Houses of Parliament have a long history of distinguishing between certain classes of legislation. We distinguish between public and private bills and hybrid bills. Although that does not have any impact on the legal effectiveness of the bill when it is transformed into an Act, it has significant effects on the procedure that is followed. One gets advice from the Public Bill Office in each House and one either follows that advice or there is a vote not to follow it and to adopt a different view. That seems to me to be something that the two Houses ought to be able to handle on their own, in the light of advice from a committee such as this one and of course from the Public Bill Office or some other institution. Q56 The Chairman: Lord Irvine, did you want to pursue that? Then may we return to Lord Pannick’s question? Professor Jeffrey Jowell: My short answer to Lord Pannick’s question is that if he were arguing it, the judges would probably decide for whichever side he was on. Apart from that, judges would find it very difficult to involve themselves in proceedings in Parliament, which they really are forbidden from entering. However, if that was not the end of it, our courts have recently been slightly less enamoured of the notion of the sovereignty of Parliament as opposed to the rule of law, something that seems to be somewhat gaining in stature. This may be considered a rule-of-law matter; although I may not have answered the question at all. Lord Pannick: It may be unanswerable. Professor David Feldman: Even though Lord Pannick did not address it to me, do you mind it if I butt in?

43 Professor Jeffrey Jowell and Professor David Feldman

Q57 Lord Pannick: Not at all. That is why I was interested in Professor Jowell’s comment on what you had said. Professor David Feldman: Might it not depend, first of all, on the nature of the procedural requirement? If it were a procedural requirement that was internal to Parliament, I can well imagine the courts saying it is up to Parliament to police that. If it were, let us say, a requirement for a referendum or public consultation, the courts might say that is nothing to do with the internal process of Parliament. Secondly, it seems at least possible that there are some types of proceedings within Parliament that courts might, in some circumstances, be prepared to look at. For example, let us suppose that the Speaker’s Certificate on a bill that passed under the procedure laid down in the Parliament Acts 1911 and 1949 was missing. Would the courts be prepared to accept the Act as an Act, on the basis that the 1911 Act says that if it passed in accordance with this procedure then it is an Act, or would they say they need to check whether it has been passed in accordance with this procedure and ask where the certificate was? Q58 Lord Rodgers of Quarry Bank: I have listened carefully, but I do not think that Professor Jowell has at any time mentioned reform—he referred to change and in one case to alteration. Professor Feldman also, after a long pause, has mentioned our reform twice. However, in the normal language of politics, there is a preference to link the word with constitutional reform, not constitutional change. I am trying to find my way around what reform means. We had a seminar two weeks or so ago and I noticed that there had been references to change, reform, radical change and radical reform, which are four different gradations—or not, whatever the case may be. What does reform mean when it is linked to the word constitution? I do not want to—and the Committee may not wish to—pursue the issue of House of Lords reform except in respect of the language. What is the meaning of reform in that context and in any other? Professor David Feldman: It is a very difficult question. I think that all one can do is draw very broad linguistic boundaries, but in the end it is going to be for this Committee to decide what it means by reform and to say so. If I were to offer a first little push along a particular direction, I would distinguish on the one hand between the sort of inevitable, constant change, which is not part of a large overarching plan, such as I mentioned earlier, from what I would call reform, which is change within the structure of an accepted set of constitutional values—not trying to change the fundamental values of the constitution, but trying to give effect to them through a new, better and more appropriate mechanism. That, to me, is reform. You approach the idea of change against the background of loyalty to existing fundamental values and principles. Then there is what I think of as constitutional revolution, where one says that one does not think that the values that currently inform our constitution are fit for purpose any more and we should go and rethink them—for example whether we still want to be a representative democracy or whether we think there is something better. If you take that line, you end up without any duty of loyalty to the pre- existing constitutional values, but you are trying to imagine and then interpret in substantive form a vision of the good political society and the good constitution. You have to dream the dream first and then you can interpret it and give effect to it. That is revolution. Q59 Lord Irvine of Lairg: Can we do more than say, by way of answer to Lord Rodgers’ question, that reform means material or substantial change to existing constitutional arrangements? If one is pressed on the word material or substantial, I think one would reply that it is change that is not de minimis. Professor David Feldman: I would not use material or substantial as part of the definition of a constitutional change. 44 Professor Jeffrey Jowell and Professor David Feldman

Lord Irvine of Lairg: Reform is the word. Professor David Feldman: Of a constitutional reform. I would not use those words—I think they are about the scale of the reform rather than whether it is a reform or not. It seems to me that the difference between reform, change simpliciter and revolution is not so much the effect as the attitude and aims that motivate the people who are arguing for and, of course, against it. I would say that we should ask whether we want change within the existing framework. If so, then it is reform. It may be a major reform—what your predecessors in 2002 regarded as big or first-class constitutional reform—or it may be a very little constitutional reform. However, I think we devalue the constitution if we think that only big changes can be constitutional. Lord Irvine of Lairg: The Government of which I was a member used to try to duck these questions by talking about modernisation, but that seems to have gone out of fashion. Q60 The Chairman: I know that Lord Rodgers and Lord Crickhowell want to come back, but in a sense the discussion of values—do we want to continue to be a parliamentary, representative democracy?—does not seem to enter into discussions, whether they are about modernisation or reform. It is all about reorganisation of the machinery of government. Professor David Feldman: May I just say that I agree with that, but that is the best possible indication that we are talking about reform, because the basic values are not being questioned. Q61 Lord Crickhowell: One of the difficulties is that a minister—the present Deputy Prime Minister is a prime example of this—wanting to introduce change will of course describe it as reform. By doing so they will be saying it is so important, because we really have such an indefensible position and people have been arguing this for a hundred years, that nobody, particularly a House of Lords Committee, should stand in the way of something that is so obviously necessary, because it is reform. So you immediately get into a conflict. I am not sure how you work that one out. Professor David Feldman: There will always be conflicts and in the end someone has to decide; and who decides may well depend on what the consequences of deciding it are. If the consequence of deciding it, first of all, is that a different parliamentary procedure will be applied to those bills, then it seems the proper body to decide is each House, in the light of advice from its committees. Professor Jeffrey Jowell: I find Lord Rodgers’ question very interesting. The notion of reform often implies that you are moving in some way to a higher plane or a better world. One may disagree. I personally found the constitutional reform of the Human Rights Act very agreeable. I like that sort of reform. If it was now to be repealed, I have no doubt that it would also be dressed up in the words of modernisation, reform or whatever. However, I would regard that as a retrogressive step. Nevertheless, it would probably be a reform more than a de minimis change, and a very significant reform of our constitutional arrangements as they currently exist. Q62 Lord Rodgers of Quarry Bank: I am slightly lost. Does reform involve the idea of purpose, objective or momentum? I am trying to define what reform means. Going back to the House of Lords, do you think using the word reform when applied to the Lords is right or not right? You said “better” earlier? Does it involve the idea of being better? Does reform of the House of Lords make it a better place?

45 Professor Jeffrey Jowell and Professor David Feldman

Professor David Feldman: I do not think that either of us is committed to a Whig version of history in which there is a progressive, steady improvement over time. You can have regressive reform, and something like repeal of the Human Rights Act might, if it happens, be an example of that. From my point of view, it is all to do with the aims and objectives—if there is a difference between those two—of the people who are promoting the reform, and then, secondly, the people who are opposing it. It will need to happen by reference to loyalty to an existing set of constitutional values. If you ask, in that case, whether modernising the House of Lords is reform or revolution, then it seems to me that, progressively, over time—although not quickly—it has been revolution. You started, not so many years ago, with a hereditary body that was not in any way committed to any idea of representative democracy or anything like it. The power to interfere with representative democracy has been gradually whittled away, first by convention and then by the Parliament Acts. After that, we are left with a hereditary body subject to constraints in the name of representative democracy. Then you have the progressive exclusion of the hereditaries. The result of that is not, I think, that we are necessarily moving closer to representative democracy, but we are moving to a different form of appointed oligarchy, if you like. If one thinks about that in terms of values, the hereditary principle is disappearing as a valuable aspect of our constitution and something else—although we are probably not sure yet what it is—is taking its place. The Chairman: Reform can be regressive. Professor Jeffrey Jowell: I have agreed with everything that Professor Feldman has said up to now except that reform of the House of Lords is a revolutionary act. I am afraid I must disassociate myself from that. I do not see it as equivalent to what has happened in places like Tunisia recently, but I may be completely wrong. Professor David Feldman: I should perhaps explain that I am using “revolution” in the sense that I explained in the beginning, as a change that is not taking place within the framework of previously accepted constitutional standards. Q63 Lord Norton of Louth: We have discussed the problem of definition. If I may come to the problem of process, and particularly pick up on what Professor Feldman was saying when he said there is no process—by which I understood he meant there was no process of enacting legislation that changed the constitution that was notably different from the process of enacting legislation not affecting the constitution; although there is some slight change, as he was indicating. I really want to step back and say that the discussion we are having about what should change is premised on the view that there is a problem with the existing process. I would like to tease out what you see as the problem with the process—in other words, what is the mischief that we should be addressing? Professor David Feldman: I think it is summed up in what I said earlier—there is no process. We all know that stuff happens, and in the constitutional reform area stuff happens more often than in most other areas. There have been a number of examples. Professor Jowell referred to one of them earlier in relation to the floating off of the Bank of England, where something happened without a public consultation, without it having been considered outside the inner circle of the policy makers but which had profound constitutional effects. Another very good example—perhaps an even stronger one, which will be close to Lord Irvine’s heart—was the sudden decision, ultimately unsuccessful, to abolish the Lord Chancellorship. It just came out of nowhere. The idea of a constitution where it is possible to have that sort of really significant reform—this was not just a constitutional reform but a first-class, substantial, material reform, however you want to phrase it, without any sort of

46 Professor Jeffrey Jowell and Professor David Feldman public discussion, and in the second case without really any discussion at all—is, I think, shocking. It would simply not be regarded, in most countries in the world, as something that ought to be allowed. There are reasons why it happened and reasons why it could happen. The reasons are partly historical and related to role of the Prime Minister and the Royal Prerogative. I noticed, for example, that in their 2002 report your predecessors said they were not persuaded that there was a case for the establishment of the Department for Constitutional Affairs. Why did we get a Department for Constitutional Affairs shortly afterwards? It was not because someone sat down and thought we needed to reform the constitution and have a body that will take responsibility for overseeing it. Professor Jeffrey Jowell: Again, I normally agree with everything that Professor Feldman says, but there are procedures in place, which sometimes come out. I agree that the examples Professor Feldman has just given are outrageous, but there are procedures in place that are sometimes honoured in the breach. The Public Bodies Bill slipped through and sought to alter some of those constitutional bodies by ministerial decree through the back door, but fortunately those changes were picked up—so those procedures were in place. There are green papers and white papers and opportunities for consultation. This is not virgin territory by any means, even in this country. Other countries—there is a small list there, and there are many more—have much more to offer. We can learn from written constitutions here, because they have procedures for this kind of scrutiny and not all of them are cumbersome and difficult to achieve. So there are sometimes procedures, but it would, in my view, be a great contribution of this Committee to suggest that they be regularised. Professor David Feldman: I do not disagree with that. I would slightly part company on whether those can be regarded as requirements for constitutional reform, because they are just general facilities that are available for any sort of policy change or proposed legislation, including for draft bills. There is nothing especially constitutional about them. What is needed is a clear recognition that constitutional reform should make systematic use of these facilities, which are already generally available. The Chairman: Many Members of the Committee are very anxious to come in on this, all of whom want to address some relevant points. Q64 Lord Renton of Mount Harry: One of you referred to constitutional change and said you would regard any alternation to the structure of Parliament as constitutional change or reform. I would very much like your view about what is going to happen on 5 May, when we are going to have a referendum on the alternative vote. If the alternative vote goes through, it is very much a change, potentially, in Parliament. Those who get their preference rubbed off first time round because there was not a 50 per cent majority, and their candidate was bottom of the list, will effectively get a second vote. That, of course, is one of the big discussions that is quickly developing. It seems to me that this is potentially a very big change in Parliament, which in a sense has really not been considered in terms of the constitution; and yet the constitution is at the heart of it, as it could mean the end of one person, one vote. What do you think about that? Professor David Feldman: I think I have been put into bat on this one, Lord Renton. I should perhaps preface this by saying that until the end of December I was a judge of the Constitutional Court of Bosnia and Herzegovina, a troubled state in many ways. In that role, one of my last judgments was to invalidate the electoral law as it applied to the city council of Mostar. The reason for that was, first of all, that there were some people who got two votes—one as residents of a ward or constituency and one voting for the whole city constituency, whereas there were others who lived in the central area, which was not 47 Professor Jeffrey Jowell and Professor David Feldman defined as a constituency in itself, who could only vote for the city-wide constituency. This seems to me, perhaps not uncontroversially, to be a serious violation of the principle of one person, one vote. That is rather different from one vote, one value, which is not a principle that the UK or, I think, most other Westminster-style constitutions have ever committed themselves to, for very practical reasons. We change the value of votes depending on how we draw constituency boundaries and the number of electors in each of them. My view, with respect, would be slightly different from yours, Lord Renton. We are not changing anything at the level of principle, we would be moving from a system of one person, one vote with unequal values to a system of one person, one vote with potentially still unequal values but deriving the inequality from a slightly different source. Professor Jeffrey Jowell: I tend to agree with that. As far as the process is concerned, I have not looked into this recently, but as far as I recall, in other countries where they are more used to referendums—this is not really addressing Lord Renton’s question but is a question of process again—they provide the people with a little more information as to the consequences of the proposal, particularly if it is as complex as this kind of thing, instead of simply leaving it to the pros and antis to produce their own advertisements in newspapers and so on. When such a thing is produced—I have seen some of these—the government, with cross-party support, present the pros and cons as objectively as possible. At least people can read that document, which comes out of the formal system, as a matter of process. Q65 Lord Irvine of Lairg: I was attracted by an observation that came from the Lord Chairman earlier in this discussion, which was—and I paraphrase—that one man— The Chairman: More elegantly, I am sure. Lord Irvine of Lairg: Not at all. One man’s reform may well be another man’s regression. That leads me to think that perhaps we as a Committee are better to avoid value-laden words like reform or modernisation. Perhaps the most important part of our function is to identify what is a constitutional change. Professor Feldman, I am interested to understand better why you are resistant to the proposition that a good working definition is a material or substantial change to the existing, acknowledged constitutional state of affairs; and defining substantial, if need be, as either material or not de minimis. You seem to have a principled objection to that but I did not really understand what that was. Professor David Feldman: I think it is not so much a principled objection as a logical one. I see the definition as somewhat tautological. We are saying that constitutional reform is important constitutional reform and unimportant constitutional reform is not constitutional reform. That seems to me— Q66 Lord Irvine of Lairg: Not at all. I am suggesting that we expunge the words “reform” or “modernisation” from our vocabularies if we are to be helpful; and just look at what is a constitutional change to acknowledged, existing constitutional arrangements. Professor David Feldman: In that case we are substituting the phrase “change in constitutional arrangements” for the phrase “constitutional reform”, but we are still defining change in constitutional arrangements in terms of substantial change to constitutional arrangements. That seems not to be a great step forward, but perhaps I am misunderstanding. Q67 The Chairman: Does it not avoid the, I thought, extremely interesting concepts that you introduced in terms of basic values. It is simply something that is a change in an existing framework, as Professor Jowell has—

48 Professor Jeffrey Jowell and Professor David Feldman

Professor David Feldman: I agree that it is avoiding that, but the cost of avoiding that is a lack of clarity, to start off with. The result would be that we simply pushed the evaluative stage one stage back, so that instead of asking whether something engages fundamental values, we ask whether it is substantial. Well, how do you decide whether something is substantial? I would come back and say that you decide that by looking to see what effect it has on fundamental values. Q68 Lord Hart of Chilton: Let us assume for a moment that we can get over the difficulties about the definition of the issue of constitutional reform, change or modernisation—or whatever you want to call it. Let us assume that we have got to the point where we have got a vehicle by which that can be identified. I am now interested in the toolkit that you have by way of process—which is the point that Lord Norton was raising— as to the various checks and balances that you then have to go through. I want to be helped to understand. On page 7, Professor Jowell lists a series of things. We have in recent times found difficulty with the fact that what are undoubtedly constitutional bills have come forward without a consensus, consultation or pre-legislative scrutiny and were achieved over the weekend of a coalition’s agreement. We have been troubled by that. In a practical way, the absence of those things has meant that in hours and hours of debate, issues have arisen and difficulties have been considered in terms of drafting, much of which could have been got rid of in proper consultation and proper pre-legislative scrutiny. What is the checklist of the absolutely essential items that it will be necessary to go through before constitutional change—let’s call it—can come forward as an Act of Parliament? What are the processes that have to be gone through on a checklist to say this has gone though proper scrutiny? Professor Jeffrey Jowell: The answer to that is that it depends to some extent on the measure. For example, if we are setting up a Judicial Appointments Commission, you probably consult first of all with the judiciary but with others as well, including the whole of the legal profession. It is also of great concern to people outside and probably a matter on which you should seek—even though at the end of the day you may not achieve it—cross- party support, if it is possible, particularly if it is an important measure; although I and Professor Feldman do not see that as a precondition. Even substantial matters will have degrees of substantiality and different constituencies, as it were, so you should seek representations as widely as possible and take them properly into account. It is a basic principle of our public law generally that relevant considerations and relevant representations should be taken into account. It is part of the rule of law; it should be part of the rule of constitutional law within this House, as well as outside it with public decision- makers. Whether you need, in all cases, a green paper first, followed by a white paper, I do not know; but I would put those kinds of things as a basic minimum, were the measures not urgent. Then, of course, there are other measures that could be introduced for certain kinds of proposals. That is much more difficult with a sovereign Parliament, but it has been done elsewhere, as in New Zealand, where you can say that change of this measure might require a higher quorum or a qualified majority; and then moving across to a national referendum and in devolution matters—and this is very important—the support of the regions, or at least consultation with them. I rest on what I have just said about the principle of taking into account relevant considerations and considering them seriously. Q69 Lord Hart of Chilton: What would happen if one or more of these things were not executed? What would be the sanction? Professor Jeffrey Jowell: It would certainly be better than it is now, in most cases. Q70 Lord Hart of Chilton: For example, would the bill be unable to proceed unless these steps had been taken? 49 Professor Jeffrey Jowell and Professor David Feldman

Professor Jeffrey Jowell: Governments are governments and politics is politics. I am not a politician. In my humble view, that is the reality of the situation. However, over the years one could possibly, by convention, perhaps one or two sanction methods, naming and shaming, or committees such as this jumping in and saying, “hang on, you haven’t done this, we must do it for you”, have it appropriately enforced. Perhaps not in all cases, but wherever possible—that is how conventions develop. Q71 Lord Pannick: If we are to identify procedures for significant legislative constitutional change, what assistance do we obtain from principles in other constitutional systems? They obviously all vary according to domestic circumstances, but do we obtain from them, at the very least, a recognition that there needs to be a well defined procedure? Do we obtain from them any principles that we could seek to apply? Professor David Feldman: You have raised a huge and hugely important methodological question, namely, what is the point of comparative politics and comparative public law and what can we actually do with the material that we collect from and concerning other places. I think the answer is that one always has to bear in mind the conditions in the source jurisdiction that controlled, constrained or encouraged the development of particular conventions or rules. The value of comparison in this situation is probably going to be that you can look at things you are thinking of doing and see whether or how they have worked in other places; and then see whether the fact that they did or did not work there is a reliable guide, given the background. It is probably limited to that. I think if you go out saying we are going to look for a model and decide whether we want the Australian, South African, American or Bosnia-Herzegovina model then you will be left with something that will perhaps be OK for some purposes but in other ways will be dysfunctional. Q72 Lord Renton of Mount Harry: Is it possible to design a rulebook that should apply when constitutional reform is being considered and would be obviously suitable for the United Kingdom? If so, what rules should it contain and how would it be enforced? Professor Jeffrey Jowell: I think it would be possible to devise a rulebook, but not a book of rules. There would tend to be principles or criteria rather than rules—when do we intervene; when do we require certain measures; what are likely to be the costs; what are the sorts of issues that Lord Irvine raised and so on. In answer to that question and Lord Pannick’s questions, there are principles, if you can call them that, in other countries. There was a huge debate in eastern Europe after the fall of the Soviet Union as to whether constitutional amendment should be made extremely rigid and almost impossible to achieve—we know the tendency would probably be to go back to the bad old days—or whether it should be made extremely flexible, in order to encourage the new constitutions to fit on the local soil and have some greater force than the initial drafting possibly allowed them. If I may refer you again to the report of the Venice Commission, which looks into this in some detail, there are principles that emerge. I am not sure whether this is a principle or not, but certainly on matters of human rights, it is much more difficult to move away from the rights set out in the European Convention on Human Rights than it is to alter the balance of power between the President and Parliament for example, although that may be possible as well. Moving from there, the French have what they call organic statutes. They identify a number of statutes that are so fundamental—in the same way as those identified in the Thoburn case as constitutional statutes perhaps, and there may be one or two others to add to that—that if there is any change to them, certain further procedures apply, because they are organic statutes and why they are organic statutes is set out. There is a lot that one could learn from written constitutions all over the world.

50 Professor Jeffrey Jowell and Professor David Feldman

Q73 Lord Crickhowell: If we are attempting to draw up rulebooks and we are having discussions about the desirability—which we can all agree on—of pre-legislative scrutiny and consultation and so on, do we need special rules for the start of a Parliament, particularly in the kind of circumstances we have today? If you have an agreement suddenly put together over five days that the parties involved think is very important, and therefore legislation must be brought forward quickly if the agreement is to carried into effect, it becomes extremely difficult. Indeed, that is one reason why there has been no pre-legislative scrutiny or consultation. We are rushed through a process and we may well face this kind of situation more frequently. We therefore need rules that apply in this kind of situation. Have you any thoughts about that? Professor David Feldman: Lord Crickhowell’s question is a tricky one. The process for laying down principles about what is to happen in certain circumstances before it happens is relatively well developed in the modern system of government. We have not just the traditional conventions but concordats on the basis of which devolved government and legislation is carried on—the Sewel Convention and so forth. These are examples of difficulties that have been anticipated, negotiated, thought about and then codified. It is not impossible. The mechanisms are there to do it but the question is one of political will. This is true of the point I think Lord Renton made earlier, and I agree entirely with what Professor Jowell said in response, that one could effectively have a book of rules, or at least principles. Whether that works depends on the politicians involved—and that applies generally to the question of how flexible a constitution is. My Balkan experience has shown me that you can have a constitution that looks, on the face of it, as if it ought to be relatively easy to amend; but for political reasons it is absolutely impossible. Presumably, the reverse could also be the case. Ultimately you find that as the rules build up, the constitution will tend to become less flexible but ultimately your book of rules may turn into a codified constitution. Q74 The Chairman: Exactly. For many of the examples that you have each given and cited, individual cases of good practice seem—I may be wrong—to come from places where the constitution is codified. Is that entirely correct or are there examples where there is good practice and a non-codified constitution? Professor David Feldman: There are non-codified constitutions in places like New Zealand and Israel, which are both, in different ways, good sources of good practice. The other point I would make about that is that no constitution can ever be completely codified. However codified your constitution is, there will always be a need for conventions, understandings and agreements around the edges. The classic example is the US Constitution. If you read it, it will give you very little idea indeed about how US Government works. Professor Jeffrey Jowell: I agree with that. I do not think that this sort of thing would necessarily lead to a written constitution. It will simply alert us to the realisation—which is often denied—that we do have existing constitutional practices and principles. There have been so many more added over the last ten or so years that the time has come to simply take a little more care with constitutional reform—or alteration or change, whatever it might be. That will not involve us moving away from a representative system of government because we do not have referendums for policy questions, such as whether there should be a mansion tax. We are talking about a restricted area of the framework of decision-making and the principles governing relations between the citizen and the state. That is out of the normal policy area and so to provide for a little more consultation, leading to whatever it might be—and going down the route of the referendum might not be out of place in this area. Yes, I agree with what you have just said about non-codified constitutions not providing us with much help. However, Australia—particularly in Victoria but also

51 Professor Jeffrey Jowell and Professor David Feldman elsewhere—has recently been doing a great deal of consultation on proposals for a new bill of rights, which they do not have in their present constitution, certainly at a federal level. They have had the sort of things that are introduced in countries where I have been involved in constitution building recently; for example the change in the constitutional arrangements of Caribbean countries, where they have opened a television station and they have had street meetings to consider it and gone around the country. South Africa provides a marvellous model for that, where almost two-thirds of people were involved, although that was a very different situation in that it was a complete constitutional revolution. Learning from that, there are all sorts of ways and devices to involve people in the constitutional process. Countries such as Australia, even though they have a semi-written constitution, are developing that at the moment. The Chairman: You have both been enormously generous with your time and we are coming to a conclusion, but I know Lord Norton wanted to make another point. Q75 Lord Norton of Louth: What we have focused on so far, in terms of process, has been once the government themselves have decided they wish to introduce a measure of constitutional change and then made the engagement in terms of green and white papers, and indeed the whole process that has been mentioned. Coming back to Professor Feldman’s point, is it the case that within government, there is no distinct process there either? Should there really not be some best practice or some changes within government? Professor Jeffrey Jowell: I would say yes. Professor David Feldman: Yes. Professor Jeffrey Jowell: We both say yes. I think there was possibly beginning to be a process of change in the last Labour Government. I think one or two Members of this House were seconded to the Home Office—was it?—to draft some of these green papers on whether there ought to be a British Bill of Rights. So there was the beginning of that process, but it was simply green papers and white papers again. However, I think you are absolutely right. Nothing much further than that was done. Q76 The Chairman: Does any other Member of the Committee want to pursue anything? Do either of Professor Jowell or Professor Feldman want to make any concluding points, which you think we may have missed? Professor David Feldman: I would just mention one thing, which relates to the question that I think was raised by Lord Crickhowell some time ago—what would happen if one of the stages that was laid down in the rulebook was missed out? I come back to the point that it depends on what type of rule or requirement it was. It may also be that one would want to think separately about different stages—about a failure at the point of formulating a reform proposal, at the point of pre-legislative consideration and in the process of legislation; and then how those might be treated in a post-legislative form of scrutiny, whether it is parliamentary or judicial or something else. It may be—I have not thought this through—that different considerations would apply at those stages. Professor Jeffrey Jowell: To correct myself, the department I was thinking of was the Ministry of Justice, not the Home Office. No, I do not have anything to add, except that, in my view, whether or not you accept my definition of the framework system for decision- making institutions, the whole identification of what is significantly constitutional and what is not—the list that Lord Irvine read out—is not a terribly difficult exercise. When you examine legislation, you know what is constitutional. We may not be able to define it, but when we see it, we know it.

52 Professor Jeffrey Jowell and Professor David Feldman

Q77 The Chairman: Not difficult, but helpful? Is it helpful? That is the point behind the question. Will it be a useful tool in this toolbox , which various Members— Professor Jeffrey Jowell: I think it would be, yes. Q78 The Chairman: From this Committee? Would this Committee have that role? Professor David Feldman: I agree so strongly with that. I think it would be a useful tool, but in the end we make those judgments on the basis of a whole collection of criteria, or indicators, and all of them would be useful. The work that this Committee is doing in teasing out some of those elements is extremely valuable and I wish you the best of luck with it. The Chairman: We stray into the area of values, but it has been very valuable for us to have your thoughts this morning. Thank you very much indeed. You were kind enough Professor Feldman to say you were also going to send us a note. Professor David Feldman: I will, Lord Chairman. I fear it will not be limited to the six pages that were specified. The Chairman: It will be very helpful indeed I am sure. Thank you both very much. That concludes the public business for the Committee. Thank you.

53 Professor Jeffrey Jowell and Professor David Feldman

Written evidence by Professor David Feldman, University of Cambridge (CRP 10)

I. What is constitutional reform? 1. From the perspective of the Committee’s current inquiry there is a difficulty in that there is no accepted process for constitutional reform. There are two further problems. First, it is not always easy to know what is and what is not constitutional. Secondly, it is quite hard to distinguish reform from change. This section addresses those two issues. A. What is meant by ‘constitutional’? 2. I do not agree with those who argue that it is impossible to distinguish constitutional rules from other rules, or that the only workable approach would be to rely on the scale of the impact of a rule, practice or change. One can identify the constitutional realm in a number of different ways. These indicators of constitutionality can be (and usually need to be) applied in combination; for reasons explained below, none on its own provides a completely satisfactory account of the constitutional realm. Nevertheless, collectively they provide useful guidance which allows us to distinguish the constitutional realm from the non- constitutional realm. 1. Impact on citizens 3. The first approach concentrates on the impact of legislative provisions on citizens and their relationship with the state. 4. In Thoburn v Sunderland City Council12 Laws L.J., with whom Crane J. agreed, said that there is a class of constitutional statutes, which either provide for the relationship between state and individual in a general, overarching way, or limit or extend fundamental, constitutional rights. These are common-law rights which have been said not to be subject to implied legislative restriction, including due process rights (especially access to court),13 and substantive rights such as freedom of expression,14 freedom from torture,15 and a right not to be left destitute and denied legal means of obtaining essential resources.16 Constitutional statutes cannot be impliedly amended or repealed; express words are required as evidence of actual parliamentary intention. 5. Substantive rights arising from Community law are not as such constitutional rights in the United Kingdom,17 and rights derived from public international law (such as human-rights treaties) would be in the same position: neither are domestic, common-law rights. Their foreign sources and the UK’s dualist constitution, requiring legislation, such as the Human Rights Act 1998, to give effect to such treaties in domestic law, weaken their claim to be considered fundamental, constitutional rights. 6. Nevertheless, they overlap common-law rights. For example, Article 6.1 of the ECHR guarantees a right of access to court to determine civil rights and obligations and criminal charges. Freedom from torture and protection against destitution and degradation are guaranteed by Article 3.18 The right to liberty is protected by Article 5. It follows that the Human Rights Act 1998 can be properly considered a constitutional statute both because it regulates the relationship between state and individual in a general, overarching manner, and

12 [2002] EWHC 195 (Admin), [2003] QB 151 at [62]-[63]. 13 R v Lord Chancellor, ex parte Witham [1998] QB 575, DC. 14 R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, HL; Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, HL. 15 A. v Secretary of State for the Home Department (No. 2) [2005] UKHL 71, [2006] 2 AC 221, HL. 16 R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [[1997] 1 WLR 275, CA. 17 Thoburn, above, at [66]-[67]. 18 R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66, [2006] 1 AC 396, HL; M.S.S. v Belgium and Greece, App. No. 30696/09, judgment of 21 January 2011, Eur. Ct. H.R. [G.C.]. 54 Professor Jeffrey Jowell and Professor David Feldman because it extends protection of at least some fundamental, constitutional rights which overlap the Convention rights. 7. That characterization of constitutional legislation presents three difficulties. • First, the idea of actual parliamentary intention is a fiction. However, that does not matter too much as long as it is accepted that the only way of establishing the fiction is by way of express language in the statute. • Secondly, Laws L.J.’s definition is under-inclusive. It does not cover the full range of matters which would normally be regarded as constitutional. One expects constitutions to establish institutions of the state and confer appropriate functions, powers and responsibilities on them. Some constitutions do little else. For example, the Constitution of the Commonwealth of Australia embodies few rights and is heavily concerned with institutions and their inter-relationships. The same was true of the US Constitution before the addition of the first ten amendments. Legislation of this kind would not be constitutional according to Laws L.J.’s criteria. • Thirdly, the criteria are also over-inclusive. Most legislation is concerned with the relationship of the state and individuals by conferring powers on state agencies to interfere with or regulate individuals’ activities or imposing criminal liability on people. Some legislation affects the relationship ‘in a general, overarching way’. Yet even very technical, narrowly focused legislation may limit fundamental, constitutional rights. 2. Constituting the state and its institutions 8. Another possible test for constitutional statutes is based, like that of Laws L.J., on subject- matter and effect, but has an institutional focus: constitutional legislation establishes state institutions and confer functions, responsibilities and powers on them. Such legislation constitutes the state and lays out its structure, core functions of a constitution. 3. Formal criteria: self-description and special procedures 9. A third test is purely formal: legislation is constitutional if it describes itself as constitutional or is made according to a special procedure laid down for making constitutional legislation. In the UK, unlike most countries (where such legislation often takes the form of an amendment to a codified constitution) there are special procedures for deliberating on private Bills, hybrid Bills, and local Bills, but there is no special procedure for making constitutional Bills. The test must therefore depend wholly on the title of the legislation, unless and until the constitution is changed. 10. Leaving aside Acts creating or amending constitutions for colonies, dominions and newly independent states, and the Air Force (Constitution) Act 1917 unifying the air forces of the Army and Royal Navy in a single entity, there are several statutes applying to the British Islands which carry the word ‘constitution’ or ‘constitutional’ in their short titles. Several of these relate to the Isle of Man19 or Northern Ireland.20 Only two Acts currently in force in relation to other parts of the British Islands have ‘constitutional’ in their short titles: the Constitutional Reform Act 2005 and the Constitutional Reform and Governance Act 2010. A Lexis search on 12 January 2011 indicated that those were the only statutes then in force in relation to any part of

19 Acts of the Westminster Parliament all or part of which remain in force are: Isle of Man Constitution Amendment Act 1919; Isle of Man Constitution Act 1961; Isle of Man Constitution Act 1969; Isle of Man Constitution Act 1971; Isle of Man Constitution (Elections to Council) Act 1971; Isle of Man Constitution (Amendment) Act 1975. Acts of the Tynwald currently in force are: Constitution (Amendment) Act 1978; Constitution (Legislative Council) (Amendment) Act 1980; Constitution (Amendment) Act 1981; Constitution (Executive Council) (Amendment) (No. 2) Act 1986; Constitution Act 1990. 20 Acts of the Westminster Parliament currently wholly or partly in force are: Northern Ireland Constitution Act 1973; and Northern Ireland Constitution (Amendment) Act 1973. 55 Professor Jeffrey Jowell and Professor David Feldman the British Islands to contain the words ‘constitution’ and ‘constitutional’ referring to state constitutions in their substantive provisions of any Act. It is fair to assume that all of these would be regarded as constitutional. However, this need not be decisive. 4. The character of the body making the legislation 11. Courts may introduce a fourth additional or replacement test relating to the character and role of the body which made the legislation. If it is judged to be made by the legislature normally constituted and in its normal role, legislation would not be constitutional. If it is made by a body acting in a constituent role, it would be constitutional. (To some degree this overlaps with the ‘special procedure’ test in subsection I.A.1.3, above.) 12. The Supreme Court of Israel adopted this approach as a step in the process of deciding that the Basic Laws, passed periodically by the Knesset since 1948, have fundamental, constitutional status, and ordinary laws are invalid if inconsistent with them.21 The Court distinguishes between the Knesset in its normal capacity and the Knesset in its role as a constituent body for the State of Israel. The first Knesset, in 1948, was empowered to make a constitution for the new state, but failed to agree one. After it was dissolved, subsequent Knessets from time to time made what were called Basic Laws, passing them by an absolute majority of the members rather than a simple majority of those in attendance. The question arose whether ordinary legislation was invalid to the extent of an incompatibility with a Basic Law. By a majority, the Supreme Court held that the first Knesset as an absolutely sovereign legislature had handed on the power to make a constitution to its successors, which were therefore entitled to make Basic Laws limiting the power of later Knessets to make ordinary laws. Essentially the majority adopted a ‘self-embracing’ rather than ‘continuing’ model of legislative sovereignty on account of the authority given to the first Knesset to make a constitution. 13. A dissenting minority took the view that the first Knesset’s authority as a constitutive body expired with it, and each subsequent Knesset was an ordinary legislature with no constitution- making authority. It followed that the second and subsequent Knessets were sovereign in the ‘continuing’ sense: they had no power to limit the legislative authority of any subsequent Knesset by making legislation. 14. For the majority, however, subsequent Knessets were entitled to sit in two different capacities: as a normal legislature when passing legislation by a simple majority of those present and voting; and as a constitution-making body when passing Basic Laws by an absolute majority of all the members of the Knesset. When acting in the latter role, the Knesset makes legislation which has higher normative (constitutional) status than the legislation made at other times and with ordinary majorities, which would therefore be valid only to the extent to which they are compatible with the Basic Laws. 15. Does this mean that the Supreme Court could decide that the Knesset has acted as a constituent assembly when passing a particular piece of legislation even if the legislation was not called a Basic Law, for example because the subject-matter was significant for a central, structural characteristic of the state? Alternatively, could a piece of legislation described as a Basic Law be held to be an ordinary law, if for example its subject-matter was insufficiently significant for the structure of the state? Logically it must be possible, as the Supreme Court held that the subject- matter of the law would be relevant to this assessment. The power of judges to tell the Knesset not only what its legislation means and how it is to apply to individual cases but also the capacity in which it was acting when it made the legislation puts them at the heart of the process of making the constitution as well as that of operating it. 5. Limiting or controlling governmental power

21 See United Mizrahi Bank Ltd. v Migdal Cooperative Village and others [1995] Isr LR 1, SC of Israel sitting as the Court of Appeal. 56 Professor Jeffrey Jowell and Professor David Feldman

16. A fifth possible test for constitutional laws might be that they have the function of limiting or controlling the power of government. This, however, derives from a US model of constitutionalism based on an ideal form of the US constitution rather than reflecting the reality of constitutions at large. It does not provide a model for understanding the UK’s constitution with the Westminster Parliament’s theoretically unlimited legislative power. It is not a sound basis for defining constitutional laws. Conclusion on the meaning of ‘constitutional’ 17. In practice, one usually needs to combine two or more criteria in order to get a useful definition of constitutional statutes. An institutional approach may be particularly valuable because not all constitutions recognize fundamental rights, and because the key function of a constitution is (in my view) to constitute the state and its institutions and confer functions, powers and duties on them. This Committee’s predecessor in 2001 adopted a test of this kind for the purpose of determining its own remit. In its first report, the Committee adopted as a working definition for its purposes: …’the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual.22 On this view, rules (including rules about rights and the rights themselves) are constitutional if and so far as they operate as part of the definition of the power of state agencies. This institutional approach can be applied to the UK’s constitution. B. What is reform? 1. The inevitability of constant change 18. Change is constantly going on in every constitution. It is unavoidable, largely because people do not agree about (a) how to interpret and apply the text and (b) what the non- textual rules or conventions demand. Working out a practical way of doing business in those circumstances involves a constant renegotiation of the relationships between key institutions and officials, occurring outside the formal process for constitutional reform. 19. For example, in the UK’s constitution everyone would agree that ministers are, by convention, accountable to Parliament for the activities of their departments, and that one aspect of that accountability is that ministers must not mislead the two Houses of Parliament. However, there is continuing tension between ministers and other members of the two Houses as to whether the minister has a duty merely to the truth, or to tell the whole truth, and nothing but the truth. There is a lack of agreement as to whether there are circumstances in which ministers may tell less than the truth, or be justified in actively misleading the Houses; an example might be lying to the House about a planned devaluation of the currency. The constitution provides a framework within which that debate can be conducted, a process of negotiation, rather than prescribing an outcome of the negotiation. 2. Kinds of constitutional change 20. We can distinguish between three broad kinds of constitutional change.

(i) a) Reform 21. The least radical kind of change is achieved within the framework of the existing Constitution, by way of the machinery for amendment contained within the Constitution or by a re-interpretation or re-working of existing constitutional provisions or traditions. Such

22 In a footnote, the Committee added: Similar definitions appear in O. Hood Phillips, Constitutional and Administrative Law, 6th ed. (Sweet & Maxwell, 1978), p. 5; Anthony King, Does the United Kingdom still have a constitution? (Sweet & Maxwell, 2001), p. 1. In offering his own definition, Professor King adds: ‘That definition is far from perfect… but it will do for our purposes’. We adopt a similar approach.’ House of Lords Constitution Committee, First Report of 2001-02, Reviewing the Constitution: Terms of Reference and Method of Working, HL Paper 11, 19th July 2001, para. 20 and note 11. 57 Professor Jeffrey Jowell and Professor David Feldman a change may be achieved self-consciously, in accordance with a principle or in pursuance of a plan, recognizing that the constitutional structure will be different afterwards. This sort of self-conscious, planned, constitutional development I will call ‘reform’.

(ii) b) Change simpliciter 22. Alternatively, change may simply happen without those responsible for it recognizing the significance of their actions for the nation's fundamental legal and political structure or principles. This I shall call ‘change’ simpliciter. Such change will usually necessitate the subsequent re-interpretation of the Constitution by others (often academics) in order to create a constitutional tradition which is capable of validating the new situation. A good deal of Dicey's writing was of this kind, providing a rationalization for changes which had occurred piecemeal over the previous three hundred years or so. This process is itself a kind of ‘reform’, being re-interpretative in nature.

(iii) c) Constitutional revolution 23. The more radical change occurs when it is not validated by existing constitutional provisions, and this invalidity is recognized by those who are responsible for the change, or by those whose job it is, under the Constitution, to decide whether the new situation is or is not constitutional. The result is a constitutional revolution (although not in Kelsen's sense23) rather than a reform. I shall accordingly describe this kind of development as a ‘revolution’. 24. A ‘revolution’ is not principally based on a re-interpretation of past constitutional events, although there may be a degree of revisionism in order to justify the change. It is rather an interpretation for a particular society and particular circumstances of a set of social aspirations. It is a vision of the good society. Like all visions, it has to be dreamed first, and the dream must then be interpreted. The process starts unconstrained by constitutional history and theory, and participants feel free to make their own. To do so, the vision must derive its authority, and the legitimacy of the resulting Constitution, from non-constitutional or non-native sources. Considerations of stability, the need to maintain the moral authority of the Constitution after its institution, and a keenness to show that the process by which the Constitution has been made is fair to all parties, are all factors which are more significant to the ‘revolutionary’ than to the ‘reformer’. However, that is not to say that these factors have no relevance to the ‘reformer’. An existing constitutional structure will be more likely to command continuing respect if it can be shown that adjustments to it are achieved in a way which is fair to all parties, an enterprise to which Brian Barry's notion of ‘justice as impartiality’ may be important. 24 Here, wide consultation is important. 25. A constitutional revolution may come about in different ways. • Political change may make the assumptions underpinning the existing constitution untenable, or existing structures may be incapable of performing a Constitution's

23 For Kelsen's definition of a revolution, see Hans Kelsen, The Pure Theory of Law (Berkeley and Los Angeles: University of California Press, 1967, 1970), p. 200. He was more concerned with the source of legal validity of norms than in changes in the fundamental values or arrangements which legitimise those norms.

24 Brian Barry, Justice as Impartiality (Oxford: Clarendon Press, 1995), pp. 67-72, 80-86, 99-111, discussing and drawing out some constitutional implications of the formulation of a criterion for moral wrongness by T. M. Scanlon, ‘Contractualism and Utilitarianism’, in Amartya Sen and Bernard Williams (eds.), Utilitarianism and Beyond (Cambridge: Cambridge University Press), pp. 103-128 at p. 110: ‘An act is wrong if its performance under the circumstances would be disallowed by any system of rules for the general regulation of behaviour which no one could reasonably reject as a basis for informed, unforced general agreement.’ 58 Professor Jeffrey Jowell and Professor David Feldman

symbolic role of unifying the nation by overcoming the strains of commitment. That is the position, for example, in post-apartheid South Africa. • A new sovereign State may have been created as a result of decolonization, rebellion against a colonial power, or civil war, as in Ireland in the 1920s, or Namibia in 1990. • A nation defeated in war may face the necessity of revising its Constitution in line with the wishes of the conquering power, as in Japan in 1945. In any of these situations, a significant part of the old Constitution is unsuited to new needs, and the necessary change cannot be achieved from within the existing constitutional structure. Conclusion on ‘reform’ 26. The kind of constitutional change with which the Committee is concerned is what I have described as ‘reform’. It will be self-conscious, reflective, and seeking a justification by re-interpreting basic values within the UK’s already prevailing constitutional tradition. This affects both the types of legitimating factors which might apply and the most appropriate procedure for reform.

II. Does constitutional reform differ in character from other public-policy proposals? 27. Constitutional reform is distinctive. The main difference between it and other kinds of public policy relates to the obligations on the people who propose or oppose the reform. There are some principles governing the legitimacy of constitutional ‘reform’ which do not apply to other kinds of change. The main one is that all concerned, whether politicians, voters or judges, should respect the principle of constitutionality, which may be formulated as follows: everyone acting in a public capacity should respect the fundamental rules, values and traditions of the Constitution for the time being, unless there are principled, constitutional advantages to changing them which outweigh the merits of constitutionality. 28. As Peter Morton has pointed out, this willingness to work within, and to extend, a constitutional tradition established previously, together with a willingness to regard that tradition as imposing obligations in a normative way, must apply to constitutional conventions as well as to rules of positive law. 25 ‘Reform’ re-interprets and revalues a tradition; it re-interprets rather than ditches fundamental values. 29. Of course, it is not easy (and may sometimes be impossible) to decide what values are fundamental. If we could agree, for example, that democracy is a fundamental value in the UK's constitution, we might not be able to agree on the model of democracy which forms such an important part of the Constitution. If we did disagree on that, we might then disagree again on whether our first-stage disagreement related to a fundamental value within the tradition. 30. Suppose some of us thought that the underlying idea was an ideal form of participatory democracy, imperfectly realised. Those people would be inclined to argue that, on a proper interpretation of the Constitution, any move from the present practice towards greater participation would enhance, rather than alter, the existing tradition of democratic government. 31. Others, by contrast, would be inclined to take the view that any move away from representative and responsible government (in which the executive is accountable to members of a supreme legislature who are free to exercise their untrammelled judgment in

25 Peter Morton, ‘Conventions of the British Constitution’ (1991-92) 15(2) Holdsworth Law Review 114-180. 59 Professor Jeffrey Jowell and Professor David Feldman the public interest between elections) would undermine rather than advance existing constitutional values. It would be seen as a ‘revolution’ rather than a ‘reform’ of the Constitution. 32. Characterising an adjustment as ‘reform’ or ‘revolution’ affects the kinds of argument which need to be brought to bear to legitimise them, and the appropriate methods of settling on the terms of the adjustment. If one is working within a constitutional tradition in a ‘reformist’ way, the proper way of justifying changes is re-interpretative. One locates them within, and justifies them at least in part by reference to, an interpretation or re- interpretation of the Constitution as currently established. ‘Reform’, whether by legislatures, executives or judges, is an organic form of development, in which the proposed new arrangements derive their authority at least in part from the continuity which can be demonstrated with existing constitutional arrangements. This need not be at any particular level of abstraction or concreteness. What is important is that the ‘reform’ programme will operate so as to maintain continuity and draw legitimacy from that continuity. Existing practices or institutions may be accepted but re-theorised, with increasing consequences for the way in which they develop, and this may well be a quiet ‘revolution’. 33. On the other hand, existing arrangements may be radically changed on the ground that they fail to advance the values implicit in the normative theory which is supposed to justify them, and that may be a noisy ‘reform’. A ‘reform’ looks to its own constitutional system for support. Comparative constitutional law offers little normative help to the ‘reformer’, but may be extremely helpful to the ‘revolutionary’. It is vital for those instituting the adjustments to know what they are aiming to achieve, because it will affect where they must look for their authority and legitimacy. 34. If the object is to change fundamental values, it is a constitutional revolution, and the constraints attaching to reform do not apply. Therefore the answer to the question posed above (does constitutional reform differ from other kinds of public-policy proposals?) depends to some degree on what sort of ‘reform’ is being discussed. But the common feature of all reform is that it requires decision-makers to engage with fundamental values, and to do so in an spirit of loyalty to them rather than of rejection.

III. Should special rules or procedures apply when constitutional reform is proposed? 35. Generally, the method by which a constitutional change is achieved affects its legitimacy, and different kinds of change require different methods in order to be legitimate. 36. When we consider the basis for saying that any one kind of constitutional alteration is legitimate, it is immediately obvious that the criteria for legitimacy are likely to be different in each case. It is important to bear in mind the varieties of legitimacy which jostle with each other for attention in political and constitutional discourse. A rule, decision or act may be legitimate or illegitimate in many ways. Some examples include legitimacy assessed: (a) constitutionally, in the sense of being accepted by the ultimate arbiters of constitutionality as consistent (or not inconsistent) with relevant constitutional norms and values; (b) politically, in the sense of being accepted by some or all participants in political discourse as justified (or at any rate not condemnable) by reference to principles concerning the proper allocation or use of state power to which those participants are prepared to subscribe;26

26 Rodney Barker, Political Legitimacy and the State (Oxford: Clarendon Press, 1990) makes the point that it is worthwhile to distinguish between political legitimacy and other forms of legitimacy, not least because a study of political legitimacy helps to answer some fundamental questions in political theory and political science about the nature of the sense of obligation to obey state commands. As explained below, I have some reservations about the usefulness of Barker's approach outside 60 Professor Jeffrey Jowell and Professor David Feldman

(c) morally, in the sense of being accepted by those who hold particular moral standards as justified (or not condemned) under those standards; (d) consequentially, in the sense of being calculated to promote some objective which is regarded as being specially valuable, including the stability of the Constitution; (e) procedurally, in the sense of being entitled to special respect by virtue of having been arrived at by way of a specially approved decision-making procedure. 37. These forms of legitimacy overlap, and are expressed at a high level of abstraction. Constitutional principles are likely to have been informed by political, moral, procedural and sometimes consequentialist considerations. A person's more concrete, lower-order political views are likely to be influenced by moral and particularly by consequentialist considerations. These may induce a commitment to constitutionalism (which can be briefly explained as a willingness to work within, and to extend, a constitutional tradition established previously, together with a willingness to regard that tradition as imposing obligations in a normative way) and to a type of decision-making procedure as means of conferring or denying obligations of obedience. And so forth. 38. Rodney Barker sees legitimacy as a reason for obedience to government.27 In that form it may be seen as an ideological tool which the State can deploy, which works to the advantage of particularly powerful groups in society such as major corporations.28 However, other people with a distinctive geographical base, coherent political claims and the capacity to make them heard distinctively through élite advocates in the political process can turn claims about legitimacy against the State. Thus Scottish Nationalists can assert claims about the illegitimacy of government from Westminster more easily and successfully than the economically disadvantaged class in England and Wales or in Scotland. In the Scottish Nationalist example the questions are: ‘When should we not be asked to obey? What form of Constitution, and what kind of State, should be put in place in order to ground renewed acceptance of a duty of obedience?’ When we talk of reforming constitutions in ways which are legitimate, the continuation of the existing constitutional arrangements, to which the ideology of legitimacy attaches, cannot be assumed. 39. How do the criteria for legitimacy affect the different kinds of constitutional re- orientation which I identified earlier? 40. Adjustments within existing constitutional constraints (reform): the constitutional propriety of any such adjustment will depend on the institution concerned acting within its constitutional powers, as defined by whatever body is the ultimate arbiter of constitutionality. Political acceptability may be differently assessed: the details of the political theory adopted to explain and justify the Constitution may not accord with either popular or élite assessment for the time being of the best political theory, not least because there may be a divergence between those who consider that the Constitution should impose primarily procedural constraints on political power and those who would prefer that it should set substantive objectives or values. In the same way, the currently dominant moral or religious tradition in a society may produce a different assessment from the dominant political or constitutional one. 41. An historical, unplanned process of change (change simpliciter): in most constitutions it will be impossible to achieve change without conscious reforms, which will political science. In particular, I have distinguished in the past between political and constitutional legitimacy: ‘The Left, Judicial Review and Theories of the Constitution’, in William Watts Miller (ed.), Socialism and the Law, 49 Archiv für Rechts- und Sozialphilosophie (Stuttgart: Franz Steiner Verlag, 1992) 71-84, especially at p. 74. For the purpose of discussing the legitimacy of constitutional change, other factors may be relevant. 27 Barker, Political Legitimacy at pp. 4-6, 112-124. 28 Ibid., pp. 6-18, 195-196.

61 Professor Jeffrey Jowell and Professor David Feldman need to comply with the principle of constitutionality, above. A rare example of a constitution which may be seen as being in large part historical and unplanned is that of the United Kingdom. Yet even here, the main elements in the Constitution have been carefully planned and argued over. The shape and terms of the various Unions, the dualist approach to public international law, the commitment to parliamentary supremacy (at least as an ideological matter), the institutionalisation of the Churches of England and Scotland within the State, the rule of law (including the principles of legality and the decision in Anisminic Ltd. v. Foreign Compensation Commission 29) are all examples of reflective choices encapsulating fundamental values. The paucity of other fundamental rules also reflects, in some degree, a conscious choice in constitution-making which needs to be respected by people wanting to achieve ‘reform’. 42. Replacing the foundations of the Constitution (revolution): here, consistency with the pre-existing constitution is not a criterion at all. In other words, constitutional legitimacy is not a proper criterion for evaluating the work of Constitution-creators. The legitimacy of the Constitution may fall to be assessed by reference to other criteria: consistency with political values, morality, fairness, etc. The special role of Constitution- makers as such does, however, attract its own very particular criteria for evaluation. These concern what Rawls called the ‘strains of commitment’.30 43. To be effective, it is important for a constitution to command sufficient public respect and support to be stable, and to be regarded as authoritative by those whose activities are governed by it. Achieving this may demand respect for tradition, if the people or their élites see their State as encapsulating a particular tradition or set of values which is important in legitimating its demands on them. It may involve going back to an older tradition: one of the reasons, perhaps, why so many post-colonial constitutions have been unsuccessful is that they have tried to institutionalise a colonial form of government in societies for which the colonial administration was never more than a superficial veneer over a more traditional social structure. 44. On the other hand, the more revolutionary the revolution, the less inclination there will be to instantiate former traditions of government and power. The difference can be seen between those who overthrew their colonial masters, like the USA, and those who merely grew away from them, like Australia and Canada. The background of constitutional tradition is less significant when a revolution is in contemplation, although maintaining some continuity may even then be a useful course where that bolsters post-revolutionary stability, as may be the case in Northern Ireland should it ever be ceded. In American constitutional thought, there is a growing recognition of the continuing importance of English common law tradition for constitutional thinking in the USA in the 19th century. 31 45. When ‘revolution’ is contemplated, the question then is not, ‘What should this institution do?’ but ‘What institutions should we have, and what should the new institutions do?’ The fairness of the process by which the new rules are settled is likely to be a key factor in overcoming the ‘strains of commitment’, but the substantive fairness, political acceptability to the people (or important people - the political or economic élite), and morality of the final settlement are likely to be equally important.

29 [1969] 2 AC 147, HL. 30 John Rawls, A Theory of Justice (New York: Oxford University Press, 1972), § 29.

31 See Paul W. Kahn, Legitimacy and History (New Haven and London: Yale University Press, 1992), esp. at pp. 73-77 discussing Thomas Cooley, A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States of the American Union (1868). 62 Professor Jeffrey Jowell and Professor David Feldman

46. The best chance of successful constitutional ‘revolution’ will be secured where the process of negotiating the terms of the new Constitution is public, open to legitimate influence (so that all - or all who are considered important - have a ‘voice’ in the drafting), and the framers take account of the needs which led to the ‘revolution’, the aspirations of all, and the practical institutional problems which are likely to attend the implementation of the new scheme. 47. South Africa's constitutional ‘revolution’ in the mid-1990s provides a good example - perhaps the best in the world so far - of how this can be achieved, applying the expertise of lawyers, political scientists and politicians to the needs and desires of the people by harnessing modern communications technology - the press, the World Wide Web, E-mail, and telephone - to allow people to understand and participate in the process of negotiation and framing. 48. This requires a particular attitude on the part of politicians and statesmen if a ‘revolution’ process is to be both consultative and successful. Sir Sydney Kentridge QC, quondam judge of the Constitutional Court of South Africa, has paid tribute to the spirit in which the leaders of the country approached the task of constitution-making. 32 This constructive and reconciliatory attitude was perhaps an essential condition for achieving fairness and establishing the legitimacy of the Constitution in the eyes of the population as a whole, in the light of the history of South Africa. It made possible among other things a constitutional Bill of Rights, drafted in the light of the needs and conditions of South Africa, and motivated by the fact that ‘those who had suffered most under the old regime, and those who were now about to come into power, not least Mr. Nelson Mandela, had a deep and genuine desire to ensure that no future government, even their own, should be able to act against any individual or group as the National Party had acted during its 46 years of power.’33 49. It depends on exceptionally able politicians leading at least two of the opposing factions. In South Africa, they were Nelson Mandela in the African National Congress and President F. W. De Klerk who set the tone for the National Party. De Klerk decided in 1993 that the best hope for peaceful transition to democratic government was a U-turn, moving from a confrontational approach to the ANC to an alliance with it. In July 1993 he ditched Inkatha, which had previously been used by the Government in an attempt to undermine the ANC and bolster the tribal homeland policy. The result was an opportunity to marginalise both Inkatha and the Afrikaner Resistance Movement (AWB), which was taken up with dramatic effect in the period after July 1993.34 50. In the same way, as suggested above, the attitudes of actors are important in ‘reform’ processes. If constitutional ‘reform’ is to be able to bring to bear the special kind of authority conferred by constitutional legitimacy, those responsible for initiating the reform and those who will be bound by it must display a particular attitude which I described earlier as the principle of constitutionality. 51. Who should be consulted and how? Is the job of framing the Constitution to be an élite job or a popular job? Is the final draft to seek the legitimacy of expert rationality or of

32 Sydney Kentridge, ‘Bill of Rights - the South African Experience’ (1996) 112 LQR 237-261 at 261: ‘The present constitution is infused with a generosity of spirit which is in part no doubt derived from the characters of the remarkable political leaders who negotiated it.’ 33 Kentridge, op. cit. at p. 242.

34 See Nico Steytler, ‘Constitution-Making: In Search of a Democratic South Africa’, in Mervyn Bennun and Malyn D. D. Newitt (eds.), Negotiating Justice: A New Constitution for South Africa (Exeter: University of Exeter Press, 1995), pp. 62-80, and Newitt and Bennun, ‘Conclusion’, ibid., pp. 177-195. 63 Professor Jeffrey Jowell and Professor David Feldman popular endorsement? One model involves specialised consultation with an expert élite. A Speaker's Conference would probably be similarly limited. A Constitutional Commission, on the Australian model, is likely to be perceived by constitutional actors and others as lacking in authority. Despite the wide consultation which the Commission carried out, its Final Report has not been implemented in any particular. 52. On the other hand, a four-stage procedure might be followed, as in South Africa. First, establish the constitutional principles which are to legitimate the constitution. Secondly, draft a provisional or interim Constitution, in a special forum (the Constitutional Assembly) during a wide public consultation. Thirdly, the provisional Constitution would be tested (perhaps by a court) against the constitutional principles agreed at the first stage. Finally, a revised draft Constitution would be enacted by the Legislature in accordance with provisions made under the Interim Constitution, perhaps requiring (as under South Africa's arrangements) a special majority to be adopted, but with a tie-break system including a referendum in the event of the necessary majority not being obtained. 53. For the moment, there are two special difficulties of achieving radical but legitimate change in the UK. The first is the absence of consensus or willingness to reach a negotiated compromise among the main political parties in England. This is even more difficult when one goes on to look at the positions in Scotland, Wales and Northern Ireland, where there are additional ‘strains of commitment’ in the forms of nationalism and historical suspicion of any threat to the Union(s), and still greater difficulties in achieving a negotiated cross-party settlement. The second problem is the absence (as in Australia) of a tradition of non-élite participation in constitutional development in Westminster-style constitutional systems. These are typically top-down rather than bottom-up. As Brian Barry observes parenthetically: ‘A few years ago a senior Indian political scientist remarked to a conference in New Delhi that the `Westminster model' had not served India well; I could not forbear to comment that it had not done too well at Westminister [sic] either.’35 We may find that it has also made fundamental reform as difficult here as it proved to be in South Africa, although under rather different circumstances.

IV. The process of constitutional change in the UK 55. The real problem is that there is no recognized, distinctively constitutional process; that makes it impossible to say whether the process has changed, and, if so, how. 56. There have been some procedural strengths in relation to the reforms undertaken in the period 1997 to 2000: devolution; human rights; freedom of information: broad consultation with referenda on devolution in affected regions; prior publication of principles underlying the human rights proposals; and inclusion in a general election manifesto. There could have been wider public consultation on human rights and freedom of information, and it is true to say that (apart from devolution, where there were referendums in Scotland and Wales) beneficiaries could not be said to have felt that they ‘owned’ the legislation or the reform process. But everyone at least had an opportunity to put their points of view, and the Queen in Parliament then made its decision. 57. Other parts of the 1997 reform package were less well trailed and discussed, notably the Chancellor’s decision to make the Bank of England independent of the Treasury with special responsibility for controlling inflation. 58. The weaknesses of the process have generally been most evident in those changes which were triggered by knee-jerk reactions, particularly after 2000. Examples include the

35 Barry, Justice as Impartiality, 106. 64 Professor Jeffrey Jowell and Professor David Feldman bodged attempt by Mr Blair as Prime Minister in 2003 to get rid of the Lord Chancellorship, an attempt which failed, but led to far more wide-ranging changes in executive- parliamentary-judicial relationships and to the structure and recruitment of the judiciary, though without appropriate reflection or consultation, in the Constitutional Reform Act 2005. The results may be beneficial (though it is too early to say), but the process was a mess. A similar lack of a properly reflective and consultative process can be seen in the panic over politicians’ reputations after the parliamentary expenses affair, leading to the mess of the Parliamentary Standards Act 2009, which then had to be significantly revised in the Constitutional Reform and Governance Act 2010. 59. The Constitutional Reform and Governance Act 2010 is in itself another example of messy reform. As originally introduced to Parliament, the Bill contained a rag-bag of reform measures without any coherent, unifying principle. To make matters worse, much of it was lost in the wash-up before Parliament was dissolved for the 2010 general election. Now we have more bits and pieces of reform before Parliament, like the Protection of Freedoms Bill, the European Union Bill, and, undergoing pre-legislative scrutiny, the draft Detention of Terrorist Suspects (Temporary Extension) Bills (if they are indeed constitutional: see question 1). 60. Other important aspects of the constitution which have been changed fundamentally but in a piecemeal way over the last 40 years, and often without people realising the significance of what was happening, are the structure, responsibilities and powers of local government, and the relationship between local and central government, including but not limited to local government financing.

V. How can the constitutional reform process be improved? What ‘good practice’ principles should be adhered to?

61. First, it would be desirable to identify the core rules and encapsulate them in a single document, which we might even call ‘The Constitution of the UK’. It need not be in a statute, although that would help, and it need not be entrenched, although that too would help to some extent (though it would create as many problems as it would resolve). It could take the form of a Report of this Committee which the leaders of all political parties publicly endorsed, and could be descriptive of current practice, probably at quite a high level of generality, rather than prescriptive or aspirational. It would be important both symbolically and practically as a shared understanding of the central principles and institutions of the state. In particular, it would enable us to say whether a proposal affected the constitution in such a way as to require a special process of scrutiny and approval.

62. Secondly, when such a proposal is advanced it would be useful to require it to be: • published in the form of a Green Paper, and made the subject of a White Paper before any legislation is introduced to Parliament. For if an idea cannot be effectively defended in a green paper, and its more detailed working out justified in a white paper, the idea is probably not worth pursuing; • open to public consultation for at least six months (and preferably more), using a variety of modes of communication. Multiple ways of consulting the public should be used. For example, in post-apartheid South Africa there was a Constitutional Convention which consulted through comics, papers, internet, touring public meetings. There might also be a body of constitutional experts and political practitioners who could discuss proposals and seek a consensus; and

65 Professor Jeffrey Jowell and Professor David Feldman

• referred to a special parliamentary committee (perhaps a joint committee) for pre- legislative scrutiny in the form of a draft Bill. 63. Thirdly, there should be a clear understanding that new or amending constitutional legislation should take the form of an Act of Parliament. It is entirely inappropriate for constitutional change to take place by way of subordinate legislation. 64. Some further points may be briefly noted.

1. Who should initiate constitutional reform? 65. It should not be left to government to initiate reform. Governments tend to be too close to the business of government to see the wider picture. Governments get into government by exploiting the existing constitution effectively, and tend to have a vested interest in resisting change. In addition, constitutional reform initiated by a government is likely to be seen as, or to become, a matter of party-political controversy, reducing the chance of achieving consensus. 66. People outside government may be less conservative and more principled. I see no reason why it should not be open to anyone in a democracy to propose constitutional reform. This Committee might be thought to have a particularly important role in proposing constitutional reform. So far as legislation is needed to achieve a particular reform, Parliament will have the last say. If it can be done without legislation, for example by convention, the relevant actors will have the final say. In any case, it makes sense for there to be wide and long consultation before anything is done. 67. Nevertheless, government must (and inevitably will) make a substantial contribution to the debate about the proposals. Parliament can provide fora for discussing proposals, for example through the inquiries and deliberations of this Committee. Parliament will decide, so far as legislation is needed. Government will have a share in decision-making so far as it can be achieved by convention.

2. Should cross-party consensus be required? 68. Seeking consensus is important, because it sets the tone for the debate. Achieving consensus, on the other hand, will often (perhaps usually) be impossible, so should not be seen as essential to the legitimacy of the reform proposal. Constitutions grow through tension and conflict over ideas at least as much as through consensus. Consensus should therefore not be an absolute requirement. However, if there is total lack of consensus between parties it might suggest that the proposal is too partisan to be acceptable. 69. If proposals include a requirement for adoption of constitutional laws by a special majority it would give the Constitution special status as a set of supra-legislative norms. It would therefore make it particularly important to secure agreement on the need for reform between at least the main parties. 70. It is pertinent to note Rodney Brazier's observation in 1991: ‘Major constitutional change in Britain in this century has, so far as possible, usually been preceded by agreement between the Government and the Opposition - or at least by an attempt to reach such agreement.’36 At present, the agreement between Conservative and Labour to adopt a generally conservative approach to constitutional reform, which Brazier noted in 1991, 37 seems to have largely broken down. Some level of agreement is needed, at least on the basics, because to be effective the Constitution will need to be accepted as a basis for decision-making and action by all actors in the political field. Negotiated agreement is

36 Rodney Brazier, Constitutional Reform: Reshaping the British Political System (Oxford: Clarendon Press, 1991), p. 2.

37 Ibid., p. 13. 66 Professor Jeffrey Jowell and Professor David Feldman inevitably necessary. To use the South African example, the adoption of an entrenched and justiciable Bill of Rights was not universally supported by leaders of the black community, but a judgment both pragmatic and principled (in terms of the strains of commitment test and Scanlon's and Barry's ‘reasonable rejection’ principle) was made that ‘if an entrenched bill of rights would make majority rule more palatable to minorities, it may well have to be accepted by the majority’. 38

3. What specific role should a) the House of Lords and b) this Committee play in the consideration of constitutional reform proposals?

71. In relation to this Committee, see paragraph 74, below. 72. In relation to the House of Lords as a whole, as the chamber devoted mainly to deliberation as to policy and scrutiny of legislation it has a proper role in safeguarding the constitution by ensuring, so far as possible, that constitutional changes are not introduced for partisan reasons and that arguments advanced are generally applicable and not motivated by party advantage. For this reason, there should be very few, if any, circumstances in which constitutional change should be effected by way of the procedure laid down in the Parliament Acts 1911 and 1949. (Indeed, one reason for concern about the 1949 Act is that it was itself a significant constitutional amendment passed without the consent of the Lords.)

VI. Would it be possible or desirable to design an enforceable ‘rulebook’ for the consideration of constitutional reform? 73. It would be possible to produce a rulebook, or book of principles, encapsulating such matters as the procedure to be followed for different kinds of constitutional change and ways to recognize constitutional change, building perhaps on the kinds of considerations set out in section I.A above. It might also provide ways to distinguish between particularly significant constitutional changes requiring extensive consultation and scrutiny and less significant ones for which a lower level of scrutiny and consultation might be appropriate. If it were kept up to date, the rulebook might in time come to be, in effect, a codified constitution for the United Kingdom. 74. So far as the procedures set out in the rulebook involved special intra-parliamentary scrutiny, it is unlikely that they would be judicially enforceable, as courts will not normally examine the inner workings of Parliament. It might, however, be monitored by a committee such as this one, or by a body modelled on the Independent Parliamentary Standards Commission. If the work were done by a committee, it would be able to advise each House as to whether a proposal or Bill is constitutional and, if it is, what procedure would be appropriate. The committee might also be allowed to place a blocking order on legislation of constitutional import which is not proceeding in accordance with the ‘rulebook’. Ultimately each House would have to police its own procedures, as the two Houses already do in deciding whether a Bill is public, private or hybrid. 75. In relation to special requirements operating outside Parliament, such as public consultation or a referendum, there is no reason why the courts could not enforce the rules if they are given statutory force. Even in respect of intra-parliamentary procedure, judges might have to decide whether a constitutional Bill has become a valid Act if a formal requirement, such as a Speaker’s certificate, is missing. This sort of review would be

38 Sydney Kentridge, ‘Civil Rights in South Africa: the Prospect for the Future’ 47 Maryland Law Rev. 271 (1987), quoted in Kentridge, op. cit., n. 15 above, at p. 241. 67 Professor Jeffrey Jowell and Professor David Feldman analogous to that carried out in relation to Acts passed using the procedure laid down in the Parliament Acts 1911 and 1949.

31st March 2011

68 Professor Tony Wright and David Howarth

Professor Tony Wright and David Howarth

Written evidence by David Howarth, University of Cambridge (CRP 3)

The Supremacy of Parliament 1. The doctrine of parliamentary supremacy – that whatever the Crown enacts in Parliament is law – is the universal solvent of English constitutional law.39 It dissolves everything it touches and cannot be contained. Anyone who has attempted to draft what in other jurisdictions would be regarded as constitutional legislation comes across the problem that however clever one’s handiwork, it can always be undone by the simple expedient of a future parliament passing a bill to repeal it. Some legislation by its nature is unlikely to be repealed, but that is not the same thing as excluding the possibility of repeal. Acts of Parliament that change the composition of either House, for example, build in a degree of protection against their own repeal because any decision to repeal them is taken by the newly-constituted House. For that very reason it is unlikely that the nineteenth and twentieth century extensions of the franchise will ever be repealed or that the hereditary peers will be readmitted en bloc to the House of Lords. But in theory even those provisions could be repealed, as could the European Communities Act, the Parliament Acts, the Bill of Rights, the Scotland Act, the Government of Wales Acts, the Human Rights Act and any other legislation no matter how fundamental to the current workings of the political system. 2. One result of the doctrine of parliamentary supremacy is that there is no uncontroversial method of distinguishing constitutional legislation from other legislation. In form, all primary legislation is the same. Whether particular legislation counts as part of the long-term structure of the state cannot in this country be determined legally. Its likelihood of repeal or replacement is a matter of political, not legal, judgment. 3. This is not so in other countries. One of the characteristics of “written” constitutions (a misnomer – all constitutions are partly “written” and partly “unwritten”, which is to say partly definitively formulated and partly not – a better adjective would be “formal”) is that they provide for a mechanism by which they can be amended. The result is the creation of at least two distinct law-making tracks, one for ordinary legislation, and one for constitutional legislation.40 The principal task of a constitutional court in such a system is to determine which track is the right one for particular proposals to take. To decide that a legislative provision or proposal is “unconstitutional” is to decide that it should not have been enacted by the ordinary track, but, to be valid, must use the constitutional track (or, in more complex systems, one of the constitutional tracks). Usually the constitutional track requires a much greater degree of consensus (e.g. a two-thirds majority) or broader consent (e.g. approval by state legislatures or by a referendum) than the ordinary track. 4. There is nothing in this country of higher authority than a statute and thus no upper boundary for the courts to police (although they do police the boundary between primary and secondary legislation, a similar kind of task). The Human Rights Act preserves (or rather recognises) the situation by providing that in the event that the courts find a piece of primary legislation in violation of human rights standards all they can do is to make a declaration of incompatibility. It is up to Parliament to decide what to do about the incompatibility.

39 “English” because some doubt exists about whether the doctrine has ever formed part of Scots law. 40 See Bruce Ackerman, We, The People: vol. 1 Foundations (1994) and vol. 2 Transformations (2000) for an exposition of this “dualist” view of constitutionalism. 69 Professor Tony Wright and David Howarth

5. The case of European law is somewhat different because the courts may “disapply” UK legislation on the grounds that it is incompatible with European Union law, but ultimately the authority of European law in our domestic legal system rests on a domestic statute, the European Communities Act 1972, a statute Parliament could repeal if it wanted to. 6. Judges have from time to time threatened to undermine the doctrine of parliamentary supremacy on their own initiative. In the Jackson case,41 for example, several judges suggested that there might exist circumstances, admittedly extreme, in which judicial commitment to the rule of law, to the “principle of legality”, might lead the courts to limit or reject the doctrine of supremacy. Lord Phillips seems to have identified, without endorsing it, a method by which the courts might bring that result about without relying on the Human Rights Act, namely to use the “principle of legality” to “read down” statutes so as to restrict their effect even where doing so would contradict the intention of parliament.42 7. The main objection to these judicial attempts at undermining, or at least circumscribing, parliamentary supremacy is that, in effect, we would end up with an entirely unamendable constitution chosen for us by judges. One perhaps paradoxical argument for a “written” (or rather a “formal”) constitution is that it would head off the threat of such a judicial dictatorship. By granting the judges a power to decide which law-making track a proposal must take, we preserve the right of the people ultimately to decide their form of government, a right they would lose if there were to be only one law-making track but one that lacked general competence and whose limits were decided by the judiciary alone. “Constitutional Statutes” 8. Given the fundamentally political rather than legal nature of the judgment of what currently counts as a constitutional statute, it is not surprising that there is little consensus about that judgment. The issue arises in at least three contexts: the committee stage of bills in the Commons, in legislation and in the courts. 9. The Commons has a practice of referring “constitutional bills” (or “bills of first class constitutional importance”) to the Committee of the Whole House. The underlying reason for the practice is that in bills affecting the role and powers of parliament itself, and thus the rights of every member, every member should be in a position to propose amendments and probe the government’s position. The practice has not, however, been formalised into any kind of order or binding convention enforceable by the Speaker. It rests with the House – which in practice usually means the government – to decide case by case how to handle particular bills. No obvious pattern emerges.43 It is striking, for example, that the Legislative and Regulatory Reform Bill was not committed to the whole House in 2005-2006 even though it threatened to make enormous changes to the legislative process. 10. As for legislation, the phrase “constitutional statute” does not appear in the UK statute book, although the Interpretation Act (Northern Ireland) 1954 does define “the constitutional laws of Northern Ireland” as “the statutory provisions relating to or affecting the legislative powers of the Assembly”. One could imagine a similar definition for the UK parliament, although one odd effect of such a definition would be that the Human Rights Act, which, as mentioned above, does not ultimately affect Parliament’s legislative powers, and arguably does not even “relate” to them, might not count as a “constitutional law”. 11. The issue has, however, arisen legislatively in the context of attempts to limit the effect of government bills that change the legislative process. For example, the task arose of drafting amendments to the Legislative and Regulatory Reform Bill to exclude constitutional

41 [2005] UKHL 56 42 First Lord Alexander of Weedon Lecture, April 2010 (http://ukscblog.com/judicial-lectures-lord-phillips-gives-alexander- lecture-on-statutory-interpretation-in-the-era-of-human-rights) 43 See R. Hazell. “Time for a New Convention: Parliamentary Scrutiny of Constitutional Bills 1997-2005” [2006] Public Law 247 70 Professor Tony Wright and David Howarth matters from the scope of the Bill. In taking on that task, I was conscious not only of the difficulty posed by the doctrine of parliamentary supremacy but also of more prosaic problems of definition. Were “constitutional statutes” only about the structure of parliament, or did the structure of government count as well? What about the monarchy and the Church? What about fundamental rights, such as the right to vote? In the end, I chose not to attempt a definition but to compile, with the help of the Commons Public Bill Office, a list of statutes, which, in addition to the Human Rights Act and the Legislative and Regulatory Reform Bill itself (dealt with in a separate amendment), might plausibly be considered “constitutional”. The list is appended (Appendix 1). The definitional problems remain. 12. As for the courts, the leading attempt is that of Laws LJ in Thoburn v. Sunderland City Council:44 “In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.” The purpose of the definition was to identify statutes that should be immune from implied as opposed to explicit repeal. For more general purposes, however, it has problems. It is vague (who are “we” who regard rights as “constitutional” – is it the public or just the judges?) and narrow. It concentrates on individual rights at the expense of structure. Laws LJ thought that Magna Carta, the Act of Union, the Reform Acts, the European Communities Act, the devolution statutes of 1998 and the Human Rights Act all qualified. But several statutes that might be thought to be “constitutional” would not obviously count, for example the Ministers of the Crown Act 1975 and the Ministerial and Other Salaries Act 1975. And would even the Parliament Acts count? Do they “condition the legal relationship between citizen and state” or affect “constitutional rights”? Not really, unless one is a peer or an MP. They condition the relationship between the Houses of Parliament and affect the rights of their members, not citizens at large except indirectly. One can see how a judge, faced with the cases of individuals in dispute with the state, might think that “constitutional” meant “concerning individual rights against the state”, but from a broader perspective, individual rights form part of a structure, and it is the structure that is constitutional, not the rights themselves. Consensus and Constitutional Change 13. One of the consequences of the lack of any recognised constitutional amendment procedure in the UK is that the degree of consensus required for constitutional change is legally undefined. In a country with a formal constitution, the obvious answer to the question “How much consensus should we look for in the process of constitutional reform?” is “Look at the constitution – it tells you in the amending clause”. Here the question is a matter of debate and political judgment. Sometimes governments declare that agreement among all of the major parties is a pre-requisite for reform (for example the previous government’s view of reform of party funding, or of the elusive next stage of Lords reform). Often, however, governments press on with major reform in the teeth of official or unofficial opposition (the Parliament Act 1911, the European Communities Act 1972, the Parliamentary Voting System and Constituencies Act 2011 to name but a few). One suspects, though one cannot prove, that when governments say that complete consensus is necessary for a reform proposal to proceed, what they are really saying is that they would not mind at all if the reform ran into the ground. 14. For reforms the government genuinely wants to be implemented, the necessary degree of consensus is purely a matter of political judgment: first in relation to the parliamentary process and secondly in relation to the likelihood of repeal were opponents of the reform to

44 [2003] QB 151 71 Professor Tony Wright and David Howarth come to power. Sometimes, as with devolution or the Parliament Act, the passage of time soothes away opposition, and, despite distinct lack of consensus at the time of implementation, a disputed reform becomes an apparently permanent feature of the political system. At other times, however, the original lack of consensus never departs, for example in the cases of the European Communities Act and the Human Rights Act. The use of referendums seems not to be decisive. Both the devolution settlement and the European Communities Act were endorsed by referendum, but the only the former has achieved the status of an apparently permanent reform. In contrast although the Human Rights Act, which came into being by purely parliamentary means, is still contested, the Parliament Acts, which are also the creation of purely parliamentary processes, are not. 15. Another form of consensus building is the unofficial constitutional convention, as used in Scotland in the 1990s. The aim of the convention was not just to establish that home rule was the “settled will” of the people of Scotland but also to move to a specific scheme of implementation. As a method of bringing together those who support the general idea of a reform but who do not necessarily agree on details, this route has great attractions. It stands in the way of divide-and-rule tactics by opponents of reform. There are not enough examples of such conventions, however, to be able to draw broader conclusions, except that we know, because reforms not prepared by such conventions have from time to time worked, that they are not a necessary condition of successful reform. Piecemeal Reform 16. Complaints are frequent that Britain’s attempts at constitutional reform have been piecemeal and incoherent. Discounting the use of that point by opponents of reform, who are merely deploying the classic Cornfordian delaying argument that the proposal should be resisted because it “blocks the way for a far more sweeping reform”,45 the complaint nevertheless has much to recommend it. To take the most obvious example, in many countries there is a connection – the nature of which varies – between the composition of the upper house of the legislature and regional or local government. This is true not only of federal states, such as the USA and Germany, but also of non-federal states such as France, where the upper house is indirectly elected by an electorate that includes local and regional representatives. In this country, however, we have separated devolution from House of Lords reform, with well-known results. Constitutional reform in Britain tends to arise from the need to resolve immediate political problems – examples include the rejection of the People’s Budget, the rise of Scottish separatism in the wake of the Thatcher government, the politics of the Blair-Ashdown relationship and of the Cook-Mclennan agreement, and the need to bind together the current coalition. Piecemeal reform is an entirely foreseeable result of such a process. 17. The influence on the piecemeal nature of reform by the lack of a formal constitution should not be ignored. Since even the most radical measure ultimately can be passed by a party in possession of a bare Commons majority and sufficient time to use the Parliament Acts, there is a standing incentive for parties in power to bring forward the constitutional changes they really mean to achieve as early as possible in their term of office. The previous government’s main constitutional achievements, for example, came very early: devolution and the Human Rights Act in 1998. The current government has proposed its Parliamentary Voting Systems and Constituencies, Fixed-Term Parliaments and European Union Bills in its first session. A similar point could be made about the changes in Commons procedure, which can be achieved by simple majority in the House, for example the parts of the Wright Committee proposals that have already been implemented. Whether the government really

45 F. M. Cornford, Microcosmographia Academica (Bowes and Bowes: Cambridge, 2nd edition 1922) 72 Professor Tony Wright and David Howarth intends that the rest of its programme, from Lords reform to the implementation of the rest of the Wright Committee’s reforms, will come to pass remains to be seen. 18. Under a formal constitution, the position is different, for two reasons. First, proposals for constitutional change have to take the form of an amendment to an existing text, which means that attention is naturally drawn to the relationship between the amendment and the rest of the document. Incoherence or merely lost opportunity for related reform is more obvious. Secondly, the fact that amendment is usually a slow, more consensual process means that there is less of a rush to start and complete it. 19. One suggestion is that we could overcome the problems of piecemeal reform, and deal efficiently with the remaining big issues of the constitution (e.g. Lords reform, the final form of the electoral system, the fate of the remainder of the Royal Prerogative) by calling an official, representative constitutional convention. The convention would be elected and would meet separately from Parliament. Its task would be to draft a formal constitution for the United Kingdom. After the production of a text there would a number of options. One option is that the text would be put immediately to the people in a referendum. Another would be that the draft would be submitted to parliament for debate and amendment before being put to the people. Either way, the aim would be to produce an authoritative text complete with amending procedure that the people would either endorse or reject. 20. Although I personally favour the establishment of such a convention, there are dangers in this approach. It is possible, for example, that the convention would never reach agreement on a text, or that the text would be rejected. When constitutions are produced as the result of a major political crisis – a revolution, a civil war or an international war – there is some urgency for the task of drafting the constitution to be competed and a major incentive for the population to accept the result, namely that otherwise there would be no functioning system of government. In current conditions in this country, there is no such imperative. The risk is considerable that the whole exercise would be wasted – and especially that the convention’s deliberations and the final referendum would be dominated by the short-term media-driven motives of ordinary politics. In times of crisis, those drawing up a constitution have reasons to lift their sights and to engage in a constitutional form of politics, a form that recognises that the task at hand is to create a system of government, not to entrench their own partisan opinions. In the absence of a crisis, the results of a convention might well be very different. 21. There is, however, one very important off-setting advantage of the official convention approach – that it provides a plausible and democratic path to throwing off the shackles of parliamentary supremacy and replacing it with the supremacy of the people as expressed through the constitution. Subsequent parliaments would meet under the authority of the constitution and would thus be subject to it. Special Parliamentary Procedures 22. Another, less radical, suggestion for reform is that constitutional bills, however defined, should be subject to special parliamentary procedures, such as a requirement for them to be preceded by green or white papers or a draft bill.46 There are always attractions in slowing down the precipitate pace of the UK legislative process, which too often results in ill- thought out statutes designed more as press releases than as effective law. But two question marks hang over such proposals in this context. The first is to ask whether they would be effective. Procedural requirements only exist by virtue of simple parliamentary majorities. They cannot be entrenched and guarantee nothing. Meanwhile, the political exigencies for introducing constitutional reform very early in a parliament would remain. The second is to ask why such procedures should apply to constitutional bills but not to others. Extensive

46 Hazell note 43 above. 73 Professor Tony Wright and David Howarth consideration is most important where complex technical issues need to be clarified. Constitutional issues, however, rarely fall into that category. They are often politically controversial, but that is not the same as technically difficult. The argument for putting constitutional bills through extra stages appears to be that more care needs to be taken with proposals that might have far-reaching effects, but one of the few advantages of parliamentary supremacy is the ease with which further legislation can be introduced to correct errors created by over-hasty law-making.47 23. One can see how slower parliamentary procedures might, in favourable circumstances, lead to a greater appreciation of the interdependency of different constitutional issues. But, for that very reason, they are unlikely to lead to greater consensus. If anything, as different issues become entangled and the number of possible alternative proposals grows, the chance of consensus will decline. An additional problem is that the parliamentary process, unlike any plausible constitutional amendment process in a formal constitution, allows a bill’s central idea for reform to be encumbered with unrelated proposals. Constitutional bills, like other bills, are standing invitations to the government to decorate the text with whatever baubles the short-term news agenda requires.48 No rule requires the government to confine a bill to the proposals contained in a White Paper or to the topics covered by a draft bill. Coherent, focussed legislation is far from a guaranteed result, and the risk of the opposite grows the longer a bill is under consideration. Mechanisms for Abolishing Parliamentary Supremacy 24. The process of constitutional reform will remain, in my submission, unclear, contested and piecemeal as long the doctrine of parliamentary supremacy remains. There will be some who will defend parliamentary supremacy, on the respectable grounds that it results in a flexible “political” constitution in which institutional questions are dealt with in ways that fit current political circumstances and which can adapt to new ones. But the disadvantages of being unable to distinguish between constitutional and ordinary issues are very considerable, not least in the role that inability plays in the failure of British politics to develop anything like a distinction between ordinary and constitutional politics, between politics in which short term advantage and material interests (and the media) are dominant and a slower, higher, grander politics of long-term political values. The question therefore arises of how to move on from parliamentary supremacy. 25. Two of the methods have already been mentioned: the judicial route and the convention/ referendum route. The immense disadvantages of the judicial route are worth repeating and elaborating. Judges by themselves have no means of creating a higher law-making track. All they can do is limit the legislative power of existing institutions. The effect is that the judicial route away from parliamentary supremacy leads to not constitutional politics but to a form of judicial dictatorship in which the judges define the limits of parliament’s legislative powers without any democratic input into setting those limits. In contrast, the convention and referendum route includes democratic endorsement of a new constitutional order and an amending procedure that would presumably involve popular consent. 26. There is another method of attempting to overcome parliamentary supremacy, namely by legislative means. It is not, in my submission, to be recommended. However it is attempted, it suffers from the basic flaw that it will depend for its authority on the very doctrine it is attempting to displace. One such attempt can be found in Bill Cash’s United Kingdom Sovereignty Bill 2010. His proposal was to create a legally enforceable duty that Royal Assent be withheld from certain types of bill unless they had been endorsed by a referendum. In Mr Cash’s bill, the duty would apply to any bill that purported to alter the

47 See e.g. Part 3 of the Constitutional Reform and Governance Act 2010, amending the Parliamentary Standards Act 2009. 48 See Parts 4, 6 and 7 of the Constitutional Reform and Governance Act 2010 for a number of examples. Note that this legislation was subjected to extensive pre-legislative scrutiny, sub. nom. “Constitutional Renewal Bill”. 74 Professor Tony Wright and David Howarth other provisions of his bill, namely that there should be no extension of the powers of the European Union without that proposal itself being subject to a referendum. The device, however, could be used for any type of bill. Mr Cash’s bill was perhaps open to a charge of internal inconsistency, since clause 1 expressly affirmed the sovereignty of the United Kingdom Parliament, whereas the effect of his Royal Assent clause would have been to take it away and replace it with the sovereignty of referendums. But that contradiction is not a necessary part of the idea. 27. It is not entirely clear, however, that Mr Cash’s device, ingenious though it is, would work. Even if a court might be persuaded to issue an order against the Crown in such a case (presumably a declaration rather than any kind of coercive order), what would happen if ministers formally advised the monarch to give Royal Assent regardless of the Act and the monarch gave that assent? Would the bill be invalid? Or would the situation be that, although the monarch was under a legal duty to refuse Assent, once Assent is given, the statute is law? 28. Another possible parliamentary method is to legislate to extend the meaning of “parliament” to include a body other than the Lords, Commons and Crown. For example, a bill might redefine “parliament” to include a constitutional court or council, which is then charged with judging legislation against some predefined standard and with withholding its consent from bills that fail. The bill could provide for the constitutional court to be invoked either before a bill becomes law or after, although the former is more natural in this system, and it could provide for the court to be invoked either by members of parliament or by individual citizens. This method has the advantage of maintaining the appearance of parliamentary supremacy but putting an important barrier in the way of crude majoritarianism. Its main disadvantage, however, is that, by itself, it fails to provide an adequate higher law-making track. How are the standards against which the court assesses new statutes to be changed? If the court takes no part in that process we are, in effect, back to square one. If it does take part, however, by what standards does it assess proposals to change the very rules under which it itself operates? 29. It might be technically possible to combine Mr Cash’s method with the re-definition of parliament method to provide a higher law-making track as well as constitutional court. The drafting would have to be complex – ‘parliament’ would have different meanings for different purposes, with the court, though part of ‘parliament’ itself, deciding whether a particular proposal could only be passed by ‘parliament’ including a referendum or ‘parliament’ without a referendum. Although fascinating as an intellectual exercise, the complexities involved would make this a difficult process to explain to the public. It would also be politically difficult to introduce without an authorising referendum, in which case it has few advantages, except of a belt-and-braces kind, over the convention/ referendum method. 30. My submission would be that, despite its risks, especially the risk that in the absence of any sort of political crisis it might fail to produce a text that commanded consent, the best method for displacing parliamentary supremacy, and thus for creating a clear process for constitutional change, is the convention/ referendum route. 23 March 2011

Appendix 1 Proposed amendment to the Legislative and Regulatory Reform Bill

75 Professor Tony Wright and David Howarth

The “Excepted Acts” were statutes to which, in addition to the Human Rights Act and the Legislative and Regulatory Reform Bill itself, the powers created by the bill to legislate by statutory instrument would not apply. ‘New schedule 2—Excepted Acts— The Acts referred to in section (Excepted Acts) are— Act of Settlement 1700 Anti-Terrorism, Crime and Security Act 2001 Bail Act 1976 Bill of Rights 1688 Church of England Assembly (Powers) Act 1919 Church of Scotland Act 1921 Civil Contingencies Act 2004 Claim of Right 1689 Constitutional Reform Act 2005 Criminal Justice and Public Order Act 1994 European Communities Act 1972 Freedom of Information Act 2000 Government of Ireland Act 1920 Government of Wales Act 2006 Government of Wales Act 1998 Habeas Corpus Acts 1679 to 1862 House of Lords Act 1999 Identity Cards Act 2006 Immigration Act 1971 Local Government Act 1972 Magna Carta 1215 Ministerial and Other Salaries Act 1975 Ministers of the Crown Act 1975 Northern Ireland Act 1947 Northern Ireland Act 1998 Official Secrets Acts 1911 to 1989 Parliament Acts 1911 and 1949 Parliamentary Constituencies Act 1986 Police and Criminal Evidence Act 1984 Prevention of Terrorism Act 2005 Protestant Religion and Presbyterian Church Act 1706 Public Order Acts 1936 to 1986 Regulation of Investigatory Powers Act 2000 Representation of the People Acts 1981 to 2002 Scotland Act 1998 Security Service Act 1989 Statute of Westminster 1931 Succession to the Crown Act 1707 Terrorism Act 2000 Terrorism Act 2006 Union with England Act 1707 Union with Scotland Act 1706 Welsh Church Disestablishment Act 1914’

76 Professor Tony Wright and David Howarth

Oral evidence, 6 April 2011, QQ 79-106

Evidence Session No. 3 Heard in Public

Members present

Baroness Jay of Paddington (Chairman) Lord Crickhowell Lord Goldsmith Lord Hart of Chilton Lord Irvine of Lairg Lord Norton of Louth Lord Pannick Lord Powell of Bayswater Lord Rennard Lord Renton of Mount Harry Lord Rodgers of Quarry Bank Lord Shaw of Northstead ______

Examination of Witnesses

Witnesses: Professor Tony Wright, [University College London], and David Howarth,

[University of Cambridge].

Q79 The Chairman: Good morning to both of you. Welcome back to the Palace of Westminster, although I seem to meet you in the corridors on many occasions, so this is obviously still a home from home for you. We are very grateful to you both for coming. As is normal select committee procedure, this is being recorded, so please identify yourselves for the record when you first speak. Thank you, David Howarth, for your very useful note, which was much appreciated by Members of the Committee. We have embarked on this inquiry mainly because we have, in relation to various bills that have come before us—not only since last May—come up against concerns about the process by which bills are taken through Parliament by the government. We have been asking ourselves questions about whether there was some overarching concern that we could expound so that we could then, we hope, look for some solutions in the political process in the broadest possible sense, through consultation and government activity, as well as parliamentary activity. We are very grateful to you as both politicians and parliamentarians for thinking about this. We have now come to the point where we are looking at the nature of constitutional reform and constitutional bills and, more essentially, at the practicalities of how we alter what we all agree—in our initial and independent examples—is a rather unsatisfactory

77 Professor Tony Wright and David Howarth process. That is really the moment that we have reached, so it is particularly fortunate that you are both with us this morning. As I say, David Howarth has kindly produced this useful note for us, which I am sure everyone has read. Tony Wright, do you want to say any opening words or shall we just plunge straight in? Professor Tony Wright: I think you would like me to say that I am Tony Wright. I would certainly like to have seen David’s note, which is obviously helpful; I have not given you a helpful note. If I had sent you a note, this would have been it. I do not know what you want to discuss but I want to try to sell you an idea that I have been trying to sell to people for the best part of 15 years without success of any kind. You are my last hope. I will read an old paragraph and a new paragraph that give the same idea from different times. You can then think about it what you will. I first wrote this in 1995, with the prospect of a Labour Government coming in with a big programme of constitutional reform. I was thinking about how this might happen coherently. I wrote then: “Parliament is strengthened rather than weakened when it develops mechanisms to perform functions that need to be performed but which it is not able to perform itself. Far from eroding an abstract sovereignty, this enhances real effectiveness. One such function is the provision of a source of expert and authoritative constitutional advice on a standing basis. Britain is distinguished by the absence of a body of this kind, yet it is indispensable for a process of sustained reform. The example of the Law Commission offers an initial precedent, the current work of the Constitution Unit an unofficial one”. I go on to say that the Labour Party, “should announce now that it intends to convert the Nolan Committee into a standing constitutional commission, with a new membership as an integral element, in its commitment to an ambitious programme of constitutional reform. Neither the Cabinet Office nor the Home Office can provide the motor of reform and a new agency is needed which is committed to the enterprise and has the expertise and authority to drive it along. There will be no shortage of work for this constitutional commission to undertake”. I had a go at that before 1997. I had a go around 1997 because I thought it would be helpful to try to avoid the charge of ad hoc-ery in the reform proposals, to get some coherence, and to think about our governing arrangements on a sustained basis. To take us almost up to date, in the summer of 2009, with the expenses row in full fling, I sat in my garden in a state of deep depression and wrote a letter to the Prime Minister, saying what we might do about it. I made two proposals. One was that we should do something serious about House of Commons reform to show that we could reform ourselves in the wake of the expenses scandal. That led to a reform committee, which David served on—we had a good time—and to the acceptance of our proposals by the Commons in those extraordinary circumstances. That now has a good effect on what is happening there. That was my first proposal; my second went back to my old hobby horse and met a stony silence. I say in my letter to Gordon Brown: “Proposals are being floated daily at the moment from all sides in a competitive game. If any are to be implemented, they would need careful investigation and analysis, exploring advantages and disadvantages, and being converted into concrete form. Ad hoc-ery in a competitive bidding war would be the worst way to proceed. A serious reform programme would be a project for many years”.

78 Professor Tony Wright and David Howarth

I went on to say: “What we lack is a standing mechanism to carry such a programme forward.” In 1997 I suggested a standing constitutional commission of the kind that exists in different forms in other countries to underpin our constitutional reforms, give coherence to them and provide a continuing source of constitutional advice on issues as they emerge. I now suggest a new version of this in the form of a democracy commission, set up for, say, 10 years with the prospect of permanence, to keep our political system under continuing review. This will be much preferable to the one-off constitutional convention that is sometimes proposed. The commission could hold convention-like hearings to help define the issues, but then offer authoritative advice on how they could be proceeded with, if elected politicians chose to do so. It would also offer a place to which issues could be referred for detailed analysis on a continuing basis. It would become the centre of expertise and advice on a whole range of constitutional matters. That is the one proposal that I have been interested in promoting over the years. As a footnote, I think particularly of the dreadful campaign on the alternative vote, which has been preceded by no independent inquiry of any kind and is informed by no independent analysis. Therefore, we have a campaign on the rather important issue of whether we will change our voting system, which has become a kind of slanging match between two camps. The absence of a body to make some informed contribution to proceedings of that kind seems to me to sustain the case for the proposal that I made. As I say, you are my last calling place. Q80 The Chairman: You may be dropping pearls of wisdom on to slightly less stony ground. It is interesting that you had not seen the paper that David Howarth produced for us. There were many similarities between what you said and what David wrote. That is an interesting coincidence if it is only coincidence. On the point that you both raise in slightly different forms about the constitutional convention, is that not something where you have both drawn on the experiences of countries that have a more formal constitution to embrace? Is what David Howarth described as a formal or written constitution not a first denominator for this kind of arrangement? David Howarth: Perhaps I can jump in here. I am David Howarth from the University of Cambridge. I thank the Committee for seeing members of the University of Cambridge’s law faculty three weeks running. That might be some kind of record. As the Chairman indicated, I am probably at the legal realist end of the faculty. Since Tony has raised the AV referendum, I should add that I am an electoral commissioner so I will not comment at all on that matter for that reason. I suppose the practical question is: how much can be done to improve the process without going the whole way and changing the underlying constitutional doctrine? The underlying constitutional doctrine—the legislative supremacy of Parliament—lies at the heart of all our problems in the process of constitutional reform. I started my note by referring to my own experience of trying to draft constitutional-type legislation. I tried to draft a fixed-term Parliament bill. Tony has tried to do the same thing. However, if you do that, you find that, no matter how clever you are, in the end what you write cannot be permanent. It cannot be entrenched and can always be repealed. That is part of the explanation of why the process is so unsatisfactory: nothing permanent is being done here. All errors are potentially temporary. People think throughout the process, “If we get it wrong we can put it right next time”. There is no rule that says that constitutional issues must be kept separate from other issues. The Constitutional Reform and Governance Bill, which we looked at towards the end of the previous Parliament, was an extraordinary mishmash of big and small issues. There was no concentration on a particular issue and no incentive to think about important issues

79 Professor Tony Wright and David Howarth separately. The move to a formal constitution, which you can do through a convention process or a beefed-up version of Tony’s proposal, will lead in the end to a clearer process of constitutional reform. The most important characteristic of a formal constitution is that it has an amending clause. Article 5 of the US Constitution tells you how to change it. It also tells you what level of consensus you need, what extra processes you need and whether you need more people. For example, are the electorate needed, through a referendum, to pass constitutional change? As long as you do not have that, you have the present confused, potentially politically contentious system, which will always have those characteristics. It might be—many people hold this position—that the present arrangements are what we want to continue with for their flexibility. If that is one’s position, the question arises of what can be done that is less than full reform. The problem is that, politically, there will always be big incentives to overthrow whatever is set up if the political requirements are great enough in the circumstances. Q81 Lord Crickhowell: As someone with a degree from the University of Cambridge, I will pursue this point. I have come to every session so far with academics and lawyers. They have produced wonderful theories and plans, and I have said, “Yes, but we have parliamentary democracy”. I have then asked the questions that you, David, addressed so well in your paper. At the end of the day, you both want a convention. Some have suggested that this committee in the House of Lords could have an ongoing permanent role. However, if there is House of Lords reform, the House of Lords as the defender of the constitution will disappear as well. At the end of your paper—and at the beginning and end of Tony Wright’s operation—you come up with a difficulty. To get to the convention you have to persuade the government of the day and Parliament to set up this institution. In the present situation, where there is an agreement between the two governing parties—who are rushing, as you said, to legislate very quickly at the start—it is even more unlikely that we will get agreement to do it. So how do we get your desirable objective of some kind of constitutional convention? How do we persuade them—given that Tony Wright has failed to do over many years—to go down this route? David Howarth: It depends on how bad you think the present situation is. We have piecemeal reform, contradictory reform and lost opportunities all over the place. Much of that arises because of the desire of governments to bring in constitutional reforms very early in their terms because they might need to use the Parliament Act to get them through. Therefore, the way in which various proposals are put together is never really thought through; you just get lots of stuff right at the start. This is all very bad, but if people are prepared to tolerate it you will never get anywhere. You will not get to the next stage. Just how bad is it that the way in which we look at House of Lords reform does not involve thinking about localities and regions? The Government’s own policy is localist but that localism has not reached the constitutional reform agenda at all. There are lots of contradictions here. However, if the government of the day think that the contradictions are fine, that they can fix any problems later and that it does not really matter—there are lots of possible political catches in going down that route—there is a problem. That also raises the problem whereby, even if you have a convention, will its proposals be accepted? Will its proposals end in a referendum that legitimates a new formal constitution that gets rid of the legislative supremacy so that we can start again? The problem is that unless you are in some kind of political crisis, where there is a big incentive for people to get on with drafting the text and a big incentive to accept it, there is a danger that it will not go through. I propose the convention because it is better than all the other options, which are even worse.

80 Professor Tony Wright and David Howarth

The other ways of getting around, through or beyond legislative supremacy are particularly horrible. The one that keeps coming up is the judicial route. The judges might decide that the principle of legality is, in extreme circumstances, more important than legislative supremacy. Some of the judges in Jackson hinted at this and there are other extra-judicial writings of that sort. If they did that we would end up with a judicial dictatorship. The one thing that the judges cannot do is create a higher law-making track—a constitutional law- making track. They cannot democratically produce a way of going beyond the ordinary legislative process. All they can do is restrict what can be done now. They do it in a way that is entirely in their own heads and is not democratically accountable. We end up with a limitation on the present situation without any satisfactory higher track. That is one way, which I very much oppose. The second way is the legislative way: to try to do it through Parliament. There have been various ingenious attempts at this proposed. One, which we should look at because it is quite amusing, is Bill Cash’s UK Sovereignty Bill from the previous Parliament. It was an attempt to control the exercise of Royal Assent. There were lots of problems with it but it was an attempt. Then there are various proposals to redefine Parliament to include constitutional councils and constitutional courts. The trouble with these is that it is either unclear whether they will work and unclear how you would change them if you do it badly; or it gets very complicated. It is rather an amusing week’s work—trying to work out exactly how to draft this. It gets so impossibly complicated that it would be virtually impossible to explain to the public. To have a constitution that you cannot explain to the public is the way to political ruin. Q82 The Chairman: We will not raise anything in that context, because I know that you are not going to comment on it. Lord Pannick, Lord Rennard and Lord Hart all want to come in but, Tony Wright, do you want to comment on the political issue? Professor Tony Wright: We have not directly answered your question, which was added to by Lord Crickhowell. I was at a conference in 1997, just at the time that the Labour Government was coming into power. It was an Anglo-German conference, and my job was to describe what the Labour Government would do in constitutional terms. I went through the list, and I could see the Germans getting really quite upset. Eventually, a German professor could contain himself no longer; he jumped up and said, “But where is the plan?”. In a way, that is your question, to which the answer is that we have what is often described as being a political constitution. That is what we do. We have this for all sorts of reasons, most of which are historical. We will probably continue to have such a constitution unless something so traumatic happens that we have to do a bit of constitution-making of the kind that has gone on elsewhere at certain times. However, there is no imminent prospect of that. This is the constitution that we have and we are changing it all the time. The sovereignty bit of it is more circumscribed than it was. We have set up all kinds of independent external bodies to look at bits of the system. There is a process of progressive codification and chunks of the constitution are now being written down whereas previously they were not. The role of the party used to be a no-go area as far as the constitution was concerned, but we now have extremely elaborate regulation of parties, party funding, and what parties can do, and so on. There is a process of codification, but it is being done in the context of a political constitution, which is one where, essentially, politicians have to take the initiative. They can deal with constitutional measures very much as they deal with other measures. David rightly says that this can easily lead to the overthrow of measures, which it can, and that may be a disadvantage or an advantage. There has been a huge raft of constitutional 81 Professor Tony Wright and David Howarth measures since 1997, but no one has proposed that any of them should be overthrown. If you get the politics right, then they will bed themselves down and become a normal part of the system. All I am proposing is that, given that we have such a constitution, let us at least make it work in a rather more informed way. That is my proposal, which may differ from David’s proposal. I want a body that sits there pretty much all the time that provides some informed commentary on what we are doing. Q83 Lord Pannick: It is obviously going be difficult to get agreement on the adoption of the democracy commission or the constitutional convention and to pass legislation to that effect. Do either of you think there is any value in a softer political approach, by which I mean some form of agreed guidelines promulgated by this committee, which is approved by the House of Commons and the House of Lords, as our report on fast-track legislation was agreed in this House? It is true that that would not be binding but there would be a political price to pay if legislation was brought forward that did not comply with the procedures that we were recommending and the criteria that should be adopted for consultation and for pre-legislative scrutiny? Is there no value in that? David Howarth: There is some value. My only word of caution would relate to what you expect it to achieve. The more important and pressing the issue, the less will be achieved. It depends on what happens in practice. If there is a quiet period in this area for a while and only a few things turn up and are dealt with, well, then you could expect such a procedure to be pretty well entrenched and it may be able to survive in slightly more serious circumstances later on. However, be under no illusion that a government equipped with a majority in the Commons, the Parliament Act 1911 and the will to act will do what they want to do. You need to realise that when putting forward those softer ideas. It is not that they have no value; the question is what you expect to get out of them. Perhaps it would be a good idea to think about the legislative process more broadly, not just constitutional bills. The Better Governance Initiative, for example, has been proposing improved procedure of this kind for all bills, because we generally have a problem with rapid legislation being ill thought out and then having to be amended greatly later in the parliamentary process. That means that the original proposals are not properly scrutinised, because they are altered. A vast amount of parliamentary time is taken up by the government changing their own bills rather than discussing their proposals. I would guess that this is about to happen with the Health and Social Care Bill. Professor Tony Wright: These are not incompatible proposals. It will be a perfectly sensible and perhaps a helpful enterprise to devise some kind of protocol that says that, if you are introducing constitutional measures, you should do it in a certain way. That would be a very useful template, but it would not alter the fact that, as David has said, we are still talking politics. You can have a protocol that says that there should be no constitutional measure that is not preceded by cross-party talks, and that would be fine, but those of us who have seen cross-party talks— David Howarth: Cross being the right word. Professor Tony Wright: You could adhere to the protocol and it would not make a blind bit of difference. I would just add that while it would be nice to distil good principles, there has to be something else in the mix if it is really to make a difference. Q84 Lord Rennard: A powerful case is being made for having a permanent constitutional convention. It is implicit in what you are saying that the first task of that convention should be to draw up a written constitution. I would like to explore for a moment a much softer option. The Scottish Constitutional Convention was set up largely by opposition parties, but

82 Professor Tony Wright and David Howarth not exclusively so. It involved civic society and produced a model that meant that, when there was a change of government, the Government largely adopted that model. Is there any merit in something softer than perhaps full legislative agreement to set up such a commission, such as setting up a constitutional convention with civic society, political parties, and experts such as ourselves contributing to it, perhaps producing some guidelines for a written constitution that could then be adopted when there was a political will to do so? Professor Tony Wright: These are different proposals. The Scottish Constitutional Convention was the right model for Scotland at that moment. It brought civil society together to do a job that was then taken up by the politicians. It was then processed with some skill by the politicians and has worn well. I am not saying—nor do I think that David has said, although I have not read his paper—that you cannot have a constitutional commission of the kind that I have proposed without it getting down to the job of writing down the constitution. I am not saying that at all. In fact, I am saying quite the reverse. The more that you do not have a formalised, codified constitution, the more you have to ensure that a political constitution works well. That is what I am arguing for. I do not think the moment is right for writing it down. There may come a moment to do that. Things are far too flexible and so many things are uncertain, not least the position of this House. If the moment came when there was a political desire to write it down, then you would have a body that would be able to do it. David Howarth: The advantage of there being an unofficial convention in the Scottish case was not just that it expressed the settled will of the Scottish people, but it did so in particular ways. That is, it overcame the objection to devolution that there are too many options and that it would be dragged through a parliamentary process and would never be properly agreed. Those unofficial conventions can bring people together to produce a more practical proposal that can be implemented more easily should there be an occasion to implement it. What it does not do is provide that occasion. Some believe that this would be a good exercise and is worth doing but, once again, it is important to control expectations about how likely this is to succeed. Q85 Lord Hart of Chilton: Lord Pannick has just asked the question that I wanted to ask, but I will ask another. You have asked whether the circumstances are bad enough to indicate that something should be done. I would like to turn that around and ask you whether you think that things are bad enough that something has to be done, even if we cannot immediately find the right solution. Do you believe that something needs to be done? David Howarth: I have always thought that they are bad enough. They have been bad enough since the 1970s when the present process of constitutional reform started with the European Communities Act 1972. There have been many occasions since then when people could not even work out whether what was being proposed was a constitutional change or not. I remember in the 1980s and 1990s the same question coming up: is this a constitutional matter, or is it not? A country that cannot decide that is in trouble. There is a particular reason for that, namely that it is important for a country to have an idea of constitutional politics as opposed to ordinary politics. The political processes that are about the system of government and the way in which we govern ourselves should be at a higher, grander, less self-interested level, tone and style than the ordinary knockabout of politics every day, run by the media in the short term and not by political requirements. The way we organise ourselves means that we never get to that; we never get to a point where you can say that people are thinking about the long term here, they are thinking about the structure and about something that might be there for a very long time and which it would be difficult to

83 Professor Tony Wright and David Howarth alter. That is why I have always thought we need something different: it is so that we can separate out important politics and not-so-important politics. Professor Tony Wright: It is even more complicated than that. It is not only about knowing whether it is a constitutional matter or not, but knowing whether it is a first-class constitutional matter and whether something else should happen because of that. There is currently a list of issues that politicians throw around, which keep coming back to hit us. We have proposals for the recall of politicians and primaries, we have the endless discussion about the House of Lords, party funding, electoral reform—issue after issue. There comes a moment when you just need to try to do it in a more sensible way than we do it now. The Chairman: We will come back to the House of Lords. All the things you have mentioned—apart from the absence of a convention or a standing commission—on scrutiny, cross-party talks and the revising agendas that re-look at pre-legislative scrutiny, have all happened. We have made no progress in a decade whatsoever, so it is not necessarily a process but a political will, as you have both said. Q86 Lord Rodgers of Quarry Bank: You have had a special relationship in Parliament on campaigning, but my overall question is: to what end? The assumption is that we are in favour of reform, but what is the reform that we want to see? Is there a point at which the process will stop? That is, is there terminal business, which you have been discussing, when you have to retire from campaigning because everything has been done? What is the objective? What do you expect? There might be no plan, but where is it meant to go? What quality or value do you expect? Professor Tony Wright: I have some sympathy with a Victorian judge who said, “Reform, reform—aren’t things bad enough already?”. I suspect that that is caught by your remark. Constitutions are evolving, developing, living things; they are not set in aspic. Even those that are written have the constant problem of amendment and development. Therefore, you would want to keep them in good shape. What constitutions do—keeping an eye on the relationship between the different bodies of state, and the state and the citizen—are things on which you would want to keep a good critical eye, at all times and places, to ensure that they are working well. Q87 Lord Rodgers of Quarry Bank: What is working well? Professor Tony Wright: It is what I have just described a constitution as being. Lord Rodgers of Quarry Bank: Yes, but what is the measure of working well? Professor Tony Wright: If you take the electoral system, you will see that we have a problem. We have a first past the post electoral system—whatever view you take of it. I was not ill disposed towards it for much of its life, but it seems to have broken down. That is why we have a coalition Government and why we have interest in electoral reform. The question is: if the first-past-the-post system has broken down because the electorate has changed and because of fragmentation and all the other things that we know about, then what should we do about it? Do we say, “Oh, well, we will just defend what is because it is”, or do we have an interesting, critical and important discussion about what we should now do? That, to me, is what we should be doing, but we can only do that in an informed way. Q88 Lord Renton of Mount Harry: I listened to you both with absolute fascination, because you have both been in the House and know about being MPs and so forth. But one of you said just now that people are beginning to think that it is time for constitutional change. The difficulty is that it is very few people who think that; it is still a minute number. The trouble with AV and what is going to happen on 5 May is not really about the

84 Professor Tony Wright and David Howarth complexity of AV, et cetera, but that, given that many local authorities are not going to the polls that day, the turnout is going to be very small. That is the major concern now. The problem that we have, and which you have, too, is how to move forward a vehicle that 90 or 95 per cent of the population in Britain do not think about at all. David Howarth: I cannot possibly comment on the AV referendum, but— The Chairman: Let us then take the House of Lords reform, which is what I raised, given that that is neutral but current. David Howarth: There is no end to reform. The point is that the amount of energy that people need to engage with a particular constitutional issue is quite great. As you say, people are not that interested. One of the problems with the present flat structure is that a bill about the reform of the House of Lords and a bill about changing the law on drainage are exactly the same as far as the process is concerned. However, with a formal constitution, when constitutional change is difficult and rare, the occasions when change is needed, when enough of a head of steam rises to mean that something might be done, are occasions when people might temporarily, although not for very long, get involved in the issue and think about it. You cannot expect people to think about the entire structure all the time, and for as long as Parliament is sitting. There have been House of Lords reform proposals and bills coming along every five minutes for the past few years, and you cannot expect the public to be engaged every time that happens. There is too much of it. However, if the structure were different, if constitutional reform were not just parliamentary and if there were a specific procedure for that sort of thing, then it is possible that people might be engaged for that time. Professor Tony Wright: The public are not interested in all kinds of things that matter and the constitution is no doubt one of them. You can see these things better historically than you can at the moment. We have just lived through a period of huge constitutional change. It will be looked back on as an era of huge constitutional change. Why did it happen? It happened for a number of reasons, and in great part because a feeling had developed that our system of government was peculiarly centralised and concentrated, had inadequate checks and balances on what a government could do, and so something ought to be done about it. In Scotland, it was because of a demand for more government in Scotland. The question there was one of statecraft, and the Conservative line was, essentially, “This will break up the United Kingdom”, and the line of those who supported devolution was, “Actually, if we want to save the United Kingdom, then we need effective devolution”. That was an irresistible moment and you had to make a choice. If you go through the list of measures of these past years, whether it is about devolution, freedom of information, the Human Rights Act or the House of Lords hereditary element, you will see that these are always issues that require attention, if you were concerned with good government. My proposition is that there are always issues that require attention if you are concerned with good government. We should try to do it in as good a way as we can. Q89 Lord Shaw of Northstead: I want to bring down the mighty debate to a more pedestrian level. It has recently been announced that there will be a draft House of Lords Bill. I do not like referendums; they can be used as a political convenience by the government in power. I understand that in the forthcoming draft House of Lords Bill, Members will be elected for 15 years, and those 15 years would probably cover three Parliaments—three House of Commons Parliaments—meaning that there would be more permanence and more steady views, if you like, in the House of Lords. Therefore, would there not be considerable merit if, uniquely, the House of Lords had the final say on whether or not a referendum should be held? In other words, a referendum could only be held by 85 Professor Tony Wright and David Howarth having the agreement of the House of Lords. It would not start the discussion, but it would put an end to it. David Howarth: It is difficult for me as a serving electoral commissioner, given that we have to run referendums. It might be thought that I had an interest in whether there were more or fewer of them. Q90 The Chairman: You were quite positive about them in your paper. David Howarth: Yes, for constitutional reform as a way of gaining legitimacy for a new constitution and for gaining legitimacy for changes to the constitution. Like you, I have never been a great fan of holding referendums all the time. If they are for special constitutional purposes, and, as I said before, I would like to separate constitutional politics from ordinary politics, then I, too, would be very sparing in the use of referendums. The conditions under which one got to a referendum, in a constitutional amendment process, is important. The normal way of doing it is that you would need to have a constitutional amendment passed by a super-majority of both Houses and a referendum to change the constitution. Your proposal might be that a constitutional amendment that might pass by an ordinary majority in the Commons would need a super-majority in the Lords or a specific vote on the referendum. Q91 Lord Shaw of Northstead: The House of Lords can be overruled by the Commons. David Howarth: Yes, I know; that is the point. Q92 Lord Shaw of Northstead: The point is, in this unique case, the House of Lords would have the power to say no. David Howarth: I was just getting to that. You would have to amend the Parliament Act, because, otherwise, in this particular case, the House of Commons would simply pass a bill taking away that power, which would be the end of that. That is the problem with all the referendums proposed in the EU Bill, in that the Commons could propose a new bill that either permanently, or for a particular purpose, removes the requirement for a referendum in a particular case. Professor Tony Wright: I am quite wary of referendums. You generally do not have the vote on the question; you have the vote on whether people like the government or not. That seems to be the case with referendums everywhere. It is also the case that you do not know which bit of a proposition people like and which bit they do not like. If you had a referendum on a European treaty, there is no way of knowing in a referendum which bits they are saying that they like and which bits they do not like. That is why I have always been rather keen on getting a far more effective parliamentary process that does the job of scrutiny; that is the only way to do it. Behind your question, there is the real issue that, at the moment, although we have a sort of convention that there will be a referendum on certain sorts of constitutional measures, we do not know what sort of measures. For some reason, nobody thinks that we ought to have one on the House of Lords. Therefore, there is no system for that. Lord Pannick may think that we have made a protocol. We could have a system, although I do not think that we would, and you could point out a lack of a system, but that would not give you one. I would add to my list, referring to Lord Renton’s question, that you must do something about the House of Lords. Whatever view you take on it, to put it bluntly, the House of Lords is now full. Therefore, in answer to Lord Rodgers’s point about what is all this reform business, the

86 Professor Tony Wright and David Howarth point is that you get to a stage where you must do something because an issue presses. It is now a case in the House of Lords that you must do something, because you just cannot go on as you are. Q93 Lord Crickhowell: I want to make one point in passing, because I do not think that it is central to the argument. Tony Wright observed that the first-past-the-post system had failed when it produced the present situation. You could argue that it is exactly what the electorate wanted and that it has actually worked rather well. However, that is merely an observation. I want to return to the whole business of constitutional change and reform. We have had an example, given right at the end, of a strong case for saying that something must be reformed because it has got into a state that is clearly unsustainable: we have an overcrowded House of Lords. The trouble about the word “reform” is that it is an intensely political word. I preferred, when we discussed it, the word “change”. Anyone who thinks that they have something that they want to do uses the word “reform”. The present Deputy Prime Minister is very good at saying, “Of course we must reform it”, which gives it a sort of imperative that “change” does not. Some of these things are reforms, but quite a lot of the things that are described as reform may not be reform at all. They may be damaging or unproductive. How do we define reform? How do we get away from the fact that it is a political word? David Howarth: Reform is a change that you like. It is better than “modernisation”; I hated that word. I have always said that using that word was a reason to vote against something. This is partly a problem of not having a formal constitution. The neutral word that can be used if you do is “amendment”, but since we have no text to amend, we cannot use that word. Professor Tony Wright: That is a good point and David’s addition to it about “modernisation” is also a good point. When the Labour Government came in in 1997, it set up a modernisation committee in the House of Commons. That makes the point that is being made. The odd thing about it, which eventually disabled it, is that it never started by saying what the problem was that it was going to deal with. So, it just went off to do all sorts of things. The point about reform is that it should be about improvement. If it is not about improvement, then we should call it something else. Q94 Lord Irvine of Lairg: Modernisation is a word which is used to defuse argument and debate and to suggest that you are just bringing things up to date. I well remember, in relation to the Access to Justice Bill, that No. 10 wanted to call it the Modernisation of Justice Bill. However, I took the view that the Access to Justice Bill was a much more defensible title and one that described the broad purposes of the Bill. Professor Tony Wright: When you draw up your protocol, you should at least ban the word “modernisation”. Q95 Lord Norton of Louth: On Lords reform, you can argue that it has been discussed for an awfully long time, but rarely from first principles. It is very much at a superficial level of changing the composition and the fact that you are thinking about the role of the Lords. The other problem is relating it to other changes that have taken place. You have made points in your paper about the piecemeal nature of change and the fact that there is no joined-up thinking. In terms of what one does about it, we are now addressing two types of questions, are we not? One is what is achievable and the other is what is desirable. The starting point has to be what is desirable and then whether that is achievable in terms of political will.

87 Professor Tony Wright and David Howarth

Tony Wright suggested that we might have a permanent constitutional commission, but I want to tease out what is the relationship between that and the rest of the process. You have the input side, namely the principles on which it has to operate, but then what flows from it in relation to the rest of the process? Should Parliament have a particular mechanism for dealing with what comes out of this commission? In other words, how does it operate and then what happens to its recommendations that means that it has some effect? Professor Tony Wright: That is really useful. The last point about how Parliament should deal with it is where I suspect some protocol exercise might be useful, although I would not invest too much hope in it, because all that you can hope for is that authoritative, expert and evidential material would be produced by a commission of the kind that we are proposing and that that would have an impact on how Parliament considered these things. It is the lack of that at the moment which is causing the difficulty. For example, nobody is asking your first principle question, which is, “What do we want a second Chamber for?”. Unless you can answer that question and do so in relation to our political system, you cannot then have the subsequent discussion about how you might compose it, its functions and so on. You have to ask what you want an electoral system to do. Again, the answer will be different in different political systems. It may seem a straightforward thing, but it is not. We are not going to develop your exchange, but if you want a system that produces decisive majority governments, which it is said that we always did want, because we the British people like strong government—that is my point about first past the post; that was its justification—and it is not doing that, then even on its own terms it is not working. So, you have to ask what you want from an electoral system and only then can you start having a conversation about how we might therefore compose such a system. None of that seems to happen, which is why we have this series of lowest common denominator exchanges about the electoral system at the moment. I think you can say the same thing about party funding and almost everything, namely that they would at least be improved and the process of transmission from doing the job to how Parliament is receiving it could only be improved if there were a body of that kind. Q96 Lord Norton of Louth: How detached should it be? Should the commission that you are proposing not just be standing outside Parliament and perhaps putting a report before Parliament, but have a more formal link, say, to a committee of either House? Professor Tony Wright: Over the years, I have developed the view that Parliament is always stronger in doing what it does if it has some connection to an outside body that is doing the work. Parliament is terribly good at doing some things, but not at doing the work. The PAC is only effective because of its link with the National Audit Office. The committee that I chaired made the ombudsman system more effective and so on. I think the more linkages of that kind that you can get, the better. One of the things that the committee that I chaired did was to keep an eye on the constitutional watchdogs, of which there are now a number. You could formalise that; it would be good for the external body and for Parliament to try to see how that link would work. The example of the Committee on Standards in Public Life is worth reflecting on. I remember vividly the day that it was set up. John Major was in such difficulty that, in an act of desperation, he thought “Oh well, we’ll set up an external body to deal with these terrible standards issues that are pulling us down all the time”. For some time, that had great effect and that body had great authority. No Prime Minister would have felt able, for a period, to reject the recommendation of the Committee on Standards in Public Life. If you look at it over the years, you will see that that ceased to be the case and it is an interesting point that there was no organic connection between the body and Parliament. That is why I am quite

88 Professor Tony Wright and David Howarth keen that we should try to bring the Committee on Standards in Public Life under a new all- purpose constitutional commission. David Howarth: There is a difficulty here, which is that it is easy to connect such bodies with Parliament if Parliament eats their product in small bites. However, and this goes back to your original question, the real difficulty is that we have no structural thinking going on about the interaction between the composition of the Houses, the electoral systems, the courts and so on. We have no thinking about how all this fits together into a system of government, which is why I favour the convention end of this proposal rather than the commission end, because at least it starts with a structure, asking what kind of system of government we want and how that fits in with the kind of politics we want. The difficulty, which you have identified, is that that is a big chunk, and it might be too big for a parliamentary process to be able to absorb, which is why I think such a body has to go for a very long time and build up its own momentum and legitimacy. Q97 Lord Norton of Louth: Picking up Tony Wright’s point about the nature of the commission, because you are suggesting we need a convention to say what should be, is there not a case for starting with a commission that makes sense of what we already have? David Howarth: It is a good starting point. The question is where you go from there. Q98 Lord Renton of Mount Harry: Going back to the question of referendums, one of you asked how much can be done without going the whole way, and it seems to me that that is a very wise remark to make. I fought six or seven general elections and I always regretted, whether I won or lost, that a higher percentage did not vote. I can only see this improving via referendums, perhaps using the availability of internet voting et cetera. However, is it not right to say that in Australia you will get fined if you do not vote? That is one reason why Australia has such a high percentage. Can we possibly look in that direction of making voting in a referendum very easy, but asking whether you fine people if they do not vote? David Howarth: It is an interesting question. You are trying to get legitimacy by this sort of process: do you get more legitimacy by forcing people to vote or not? There is an argument that you get none, because they are only doing it because they will be fined 100 dollars if they do not. What good is that? Is that real consent? Professor Tony Wright: I am not sure whether we have moved on from referendums on constitutional matters to the more general use of referendums. If we are on the latter, I would add to my list of problems the fact that it is possible to have referendums which are quite contradictory. You can vote for one thing, such as increased spending, one year, and then cutting taxes. The virtue of our system of government is that somebody has to make it add up and sort of coherent. A referendum can make it incoherent. Q99 The Chairman: As it did with the Irish example on Lisbon. The whole thing was completely incoherent as a result of the referendums. Professor Tony Wright: I went on a committee trip to the United States some years ago, looking at their system of having referendum questions on the ballot paper at each election. I went as an enthusiast and I came back saying “Never let it happen here”, having talked to people who were closely observing what happened, what people got up to, how it was funded and all the rest of it. Q100 Lord Renton of Mount Harry: You will not yet have read yesterday’s Hansard, when we talked about the European Union Bill. The talk went on from 3.46 pm to after 10 pm, and we covered only two clauses. There are 360 columns in Hansard. Lord Howell did

89 Professor Tony Wright and David Howarth say when “a treaty change is deemed to transfer competence or power from the UK to the EU, it will in principle require the approval of the British people in a referendum”. In my book, that is a very large move forward. There is argument as to whether that is required or not and that is what a lot of the talk was about last night, but it is interesting to me that the Government are moving in that direction. Professor Tony Wright: Who is going to decide whether a particular measure transfers a power or not, how big a transfer it is and how big a power? Lord Renton of Mount Harry: That is exactly why the discussion took nine hours and has only just started. David Howarth: What is interesting about this is is that these kinds of questions end up in the courts, and then the question is whether we have the right court structure to decide that sort of thing. A similar discussion happened in France about the last round of European treaties. It was decided by their constitutional council that a constitutional amendment was required. This comes up all the time. In France, you can do it either by referendum or by a purely parliamentary process. They have a particular way of deciding constitutional cases, with a court which is separate from the ordinary courts and is appointed by different people in the political process. A lot of the people who are in the court have been in politics. So, do you want a constitutional court of that sort or of the American sort, which is a court that deals with ordinary law as well? It seems to me that we are deciding that kind of issue by default. By passing the EU Bill in its present form, we are saying, “That stuff goes off to our ordinary courts where it is decided by ordinary judges”. Is that the kind of constitutional court we want for our country, going back to Tony’s point about the kind of politics we have in this country? Q101 Lord Irvine of Lairg: Maybe my moment has passed, but I was going to ask you to revert to the subject of House of Lords reform, which is of passing interest to the members of this Committee. If you ask the question, “Should the House of Lords be appointed or elected?”, would you agree that you have to answer the question of what value it would add to the existing legislative process, understanding that you have an elected House of Commons? You have to ask that fundamental question. If you cannot answer it and say what value it would add, that presumably leads to two other fundamental questions. First, should we simply have a unicameral system and not a bicameral system? Second, it leads to this question: is there not value in an appointed House of Lords, because it brings into the legislative process people of different experience and backgrounds to the modern professional politician and, therefore, that is an argument for retaining an appointed House of Lords? There are all these fundamental questions, which I think, and I invite you to agree, have to be grappled with before you launch into House of Lords reform. David Howarth: They are structural questions about what sort of legislative process you want and what sort of political balance you want in that constitution. If you look around the world, there are second Chambers whose function it is to get in the way of the first Chamber—that is their function; the check and balance is part of the system. Now, in this country, when I tried to put forward that sort of function for the second Chamber in the House of Commons, Jack Straw would say, “No, you’re in favour of deadlock”, and I would say, “Yes, I am in favour of deadlock. Deadlock can be quite a good thing”. But it is a political choice about whether the structure is meant to obstruct the government or not. What other functions are there, if you look around the world? Another function is the representation of regions or localities, which can be done in a variety of ways. Even the French Senate represents regions and localities in some particular way, in a non-federal state; that is another function that you might want to think about. Or it might be that you 90 Professor Tony Wright and David Howarth are looking for a purely technical revising role. Then the question is, “How do you appoint people to that?”, because it might not be a good idea to appoint people to a revising Chamber on the grounds that they have done some service to the state in some completely unrelated field. It might be, if that was your aim, that you would look to the Conseil d’État, a body whose expertise was in how legislation works in technical ways—in fact, a body rather close to Tony’s commission. It could be that we are going towards a rather different constitution from the one we have. Q102 Lord Irvine of Lairg: If these questions cannot really be answered then, subject to our space problems in the House of Lords, the alternative to doing something is doing nothing. David Howarth: There is a problem with the status quo here. There is a point that I was going to make on a different question but I think it fits here as well. There is a problem in privileging the status quo just because it is the status quo. If one were to move to a formal constitution and amendment to that constitution were to be difficult, you have the legitimacy of the passing of the constitution to justify privileging the way things are. But the situation that we are now in has never received any wider consent. Where we are now has only arisen through the passage of ordinary bills and bits of process. Just ask yourself this question—this is the only comment I’ll make on the electoral system—when was there a referendum to establish first-past-the-post? There just was not one, so one has to be very careful in the type of argument you are making, Lord Irvine, in privileging what is just because it is. If one were to ask the question, “What is the structure now? What is the purpose of the House of Lords now?”—and we did this in the House of Commons in the previous Parliament—you get all sorts of contradictory answers which might lead one to the situation of “Something must be done”. Q103 Lord Irvine of Lairg: We can all fling maxims at one another. Sometimes it appeals to many that you should “cling to nurse for fear of something worse”, particularly if you cannot make up your mind on what is better. Professor Tony Wright: I do not know how far you want to go on House of Lords reform. The Chairman: I am sure we will have many sessions on House of Lords reform. Professor Tony Wright: One little thing. I do not know if you remember, Lord Irvine, but when I was your PPS many years ago, you did ask me once to do a little note for you on House of Lords reform. The Chairman: A little note. Professor Tony Wright: It was a little note, because I saw the issues perhaps disarmingly clearly. I always thought that the House of Lords was quintessentially the House of scrutiny, and therefore the question was how you could make sure it performed that role well. You nod assent until we get to this point: then I took the view that I thought we probably needed some mixture of election and appointment. I know you nod your head now, but my mantra was, “Enough election to be able to answer the legitimacy question, and enough appointment to be able to answer the question about independence and expertise”. I was not adamant about the mixture—I was fairly flexible about the mixture—but somewhere in there we could get an answer. Indeed, the committee that I chaired produced quite a major report spelling out how this would be done. It managed to persuade Robin Cook at one time; it then persuaded Jack Straw; but it never persuaded the House of Commons. I suspect that at some point we will need to return to those sorts of things.

91 Professor Tony Wright and David Howarth

The Chairman: If I may say so, that was very much the burden of the Royal Commission report in 2000. Q104 Lord Norton of Louth: I shall come back to something we have not touched on: process. It strikes me that a core part of the problem at the moment is within government itself—the methods it utilises to address constitutional issues, and whether it has mechanisms for itself engaging in joined-up thinking. Now, if there is a problem within government, what can be done to improve the internal processes by which government itself determines whether there should be change to the constitution? Professor Tony Wright: I am not close enough to know, but my sense is that the aggregation of expertise on this has got diffused over the years. I do not think there is a major centre within government that would provide an answer to this. Part of the way that you have described it is making sure the linkages are right. I think that it was Lord Crickhowell who said, “What chance have we got of getting such a commission?” but I think that it would have been perfectly straightforward for the Government coming in in 1997 to have said, “There will be a commission”. It would have seemed a perfectly ordinary thing to do. I do not think that it is a great big thing to announce; indeed, it might be helpful. The linkage point is getting the right linkage from that to Parliament and into Whitehall. I am with you: I do not think that we are up to speed on that front either. David Howarth: The relevant parts of government shift around. It is my impression that there is expertise but it is in different places. As Tony says, the relevant parts are the part that deals with Parliament, which are usually missed out of all these discussions. There is quite a lot of constitutional expertise there. There is the part in the Treasury that deals with parliamentary processes to do with money, which also usually gets missed out in this sort of discussion. Then there is the expertise in what is now the Ministry of Justice about the judiciary. Then there is the Cabinet Secretary’s own expertise—the manual and, lying behind the manual, the notebooks; in fact, you have this entire constitutional decision-making system aimed at the Cabinet Secretary. Finally, there are all the people in this democratic unit and that democratic unit that do the day-to-day work for whichever minister is responsible, now the Deputy Prime Minister. That is diffuse across government. Q105 Lord Norton of Louth: Should they be more aggregated, then, as it is a first step? They are not mutually exclusive to the idea of this commission, but presumably you need some structure within government itself so that it can actually reflect on the constitutional issues, qua constitutional issues. David Howarth: You cannot completely aggregate, because a lot of those people have very important functions within those departments already and cannot be removed, so what you need is co-ordination. Q106 The Chairman: Joined-up government again. I am very grateful to you for your time. We are probably reaching a conclusion, but I am sure that there are other points that other people would want to make round the table. We have covered a huge amount of ground. No further points from the committee? Do you two have any concluding points apart from, once again I am sure, saying that this is a last chance for improvement? Professor Tony Wright: I used to notice how often David and I were on the same territory in the House of Commons, and I am delighted to find that we are on the same territory in the House of Lords as well. David Howarth: Yes. I think Tony’s proposal is a good start for where we might want to go, but it is obviously not the end point. I stick to my view that I formed in the 1970s: that

92 Dr Alexandra Kelso and Professor Matthew Flinders the system of government we have in this country is extraordinary in terms of its incoherence. Getting that point across is most important, I think. Of course, it might be that incoherence does not lead to very bad results all the time, but I am sure that there will be points at which we will regret having that system of government. Professor Tony Wright: I am quite in favour of muddling through, but I think we could put a bit more coherence into it. The Chairman: A bit more coherence into the muddle. Professor Tony Wright: A coherent muddle. David Howarth: A coherent muddle is what we are advocating. The Chairman: Perhaps we should call our report on this “Attempts to reach a coherent muddle”. Thank you both very much; it has been a very interesting morning, and we are most grateful to you. Thank you very much indeed; it has been extremely practically helpful. Thank you so much. There is no other business as we have dealt with it before. The committee is adjourned. I hope that everybody will have a wonderful recess.

Dr Alexandra Kelso and Professor Matthew Flinders Written evidence by Professor Matthew Flinders, University of Sheffield (CRP 1) 1. Distilled down to its simplest form, this inquiry is focused on the balance between constitutional flexibility and constitutional rigidity.

2. Constitutional flexibility exists where a constitution can be changed by simple majority votes in the legislature. Constitutional rigidity, by contrast, suggests that the same amendment would involve a number of more stringent requirements to be achieved. A number of countries employ a range of mechanisms or constitutional safeguards to both impose a degree of constitutional rigidity and also demonstrate the ‘higher order’ status of constitutional provisions.

3. Although democracies around the world use a wide range of processes and mechanisms to give their constitutions differing degrees of flexibility or rigidity the distinction between ordinary legislative majorities – indicating complete flexibility – and by larger majorities (possibly tied to other extra-legislative hurdles) provides a useful starting point to any discussion. In this sense three categories of rigidity can be distinguished:

(a) Low Bar - approval by simple majority; (b) Medium Bar - approval by two-thirds majorities (a common rule for constitutional amendment based on the idea that the supporters should outnumber the opponents of a measure by at least two-to-one); (c) High Bar - approval by more than two-thirds majority (plus some form of popular referenda or approval by sub-national legislatures). 4. The nature of the electoral system may influence the ease in which a legislative special majority (sometimes referred to as ‘extraordinary majorities’ or ‘super majorities’) is reached. Parliamentary systems employing simple-plurality electoral systems are disproportional and as a result may return large legislative single-party

93 Dr Alexandra Kelso and Professor Matthew Flinders

majorities on the basis of a minority of the electorate. Therefore supermajorities are clearly less constraining in countries using simple plurality electoral systems compared to those using proportional systems.

5. In reality the need for adjustment has been recognised by many plurality countries themselves through the imposition of a high threshold for constitutional amendments (see Table 1 below).

Table 1 Majorities and Supermajorities required for Constitutional Amendment in Thirty-Six Democracies Super-majorities greater than two-thirds [4.0] Australia, Canada, Japan, Germany [3.5] Switzerland, United States Two-thirds majorities or equivalent [3.0] Austria, Bahamas, Belgium, Costa Rica, Finland, India, Jamaica, Luxembourg, Malta, Mauritius, Netherlands, Norway, Papua New Guinea, Portugal, Spain, Trinidad

Between two-thirds and ordinary majorities [2.0] Barbados, Botswana, Denmark, France [1.6], (Columbia after 1991), Greece, Ireland, Italy, Venezuela, (France after 1974), (Sweden after 1980)

Ordinary majorities [1.0] Iceland, Israel, New Zealand, Columbia [1.1], Sweden [1.3], (Colombia United Kingdom before 1991), (France before 1974), (Sweden before 1980) Source: Lijphart, A. 1999. Patterns of Democracy, 220; Flinders, M. 2010. Democratic Drift, 217. Note: The indexes of constitutional rigidity are in square brackets

6. As Table 1 suggests, the UK requires only an ordinary majority and this, in turn, reflects the constitution’s prized flexibility. The risk, however, is that a Government with a secure majority in the House of Commons could in principle bring about controversial and ill-considered changes to the constitutional configuration without the need to secure wide-ranging support.

7. The ‘dilemma for democracy’ as Lord Hailsham put it, is that ‘with no written constitution there is no way of distinguishing between ‘constitutional’ enactments and others’.

8. It would be wrong, however, to suggest that amendments to the constitution are treated just like ‘ordinary’ acts. Convention dictates that ‘bills of first-class constitutional importance’ take their committee stage on the floor of the House of Commons and the period 1997-2007 involved a large number of popular referendums on specific constitutional reforms.

9. This convention does not remove the fact that a dominant executive faces few hurdles if they are intent on bringing forward change. Whether a bill is referred to a 94 Dr Alexandra Kelso and Professor Matthew Flinders

committee of the whole house, published in draft form, whether a referendum is held, or whether the recommendations of the Lords Committee on the Constitution are accepted or ignored are matters for the government of the day and there are precious few constitutional safeguards, if any, that combine to limit the flexibility of a dominant executive when it comes to amending the constitution.

10. The current coalition government’s approach to the process of constitutional reform underlines many of these concerns.

11. The Parliamentary Voting System and Constituencies Bill clumsily forced two major constitutional issues together for partisan political reasons rather than those associated with good governance. The parliamentary debate on the plans to reduce the size of the House of Commons exposed the absence of any rationale for the new figure of 600 MPs. The Fixed Term Parliaments Bill has been managed in an equally clumsily manner and the Public Bodies Bill provides a classic case study of how not to go about undertaking major changes to the structure of the state that undoubtedly have major constitutional implications. (‘Botched’ was Bernard Jenkin’s accurate summary of the reforms.) The Health and Social Care Bill and the Police Reform and Social Responsibility Bill also amend central planks of the constitution and yet the process through which they are being enacted lacks any capacity for slow and considered reflection.

12. One of the most curious (but not surprising) elements of monitoring the process of constitutional change under the coalition government has been the manner in which the traits of the previous Labour governments (i.e. a tendency to rush through ill- considered plans, the lack of any clear principles, the existence of inconsistencies, a failure to consult, etc.) have been continued.

13. Whether an issue should be defined as ‘constitutional’ should be a matter for Parliament and not the government of the day. Constitutional bills should always be subject to draft scrutiny and referendums should always contain some form of threshold.

14. ‘Too much, too quick’ is likely to become a fitting epitaph for the coalition government. This adds weight to the argument that the constitutional balance between flexibility and rigidity may need to be shifted in favor of the latter through the insertion of more demanding procedural obstacles in the constitutional reform process.

March 2011

95 Dr Alexandra Kelso and Professor Matthew Flinders

Written evidence by Dr Alexandra Kelso, University of Southampton (CRP8) Contested Constitutional Politics The UK constitution is an essentially contested construct, and consequently debates over its reform are frequently heated and passionately argued. The processes surrounding constitutional change are also hotly contested. The absence of a clear blueprint for precisely how those processes should be conducted is one of the central compelling questions in contemporary UK politics. The current government’s proposals and actions on constitutional change are extensive and have far-reaching consequences. They include creating fixed term parliaments, reforming the electoral system, reducing the size of the House of Commons, introducing the power of recall, and reforming the House of Lords. These reforms, taken together, demonstrate the centrality of our constitutional arrangements in determining how political power is secured, how it is utilised, and the extent to which it might be constrained. The broad scope of constitutional reform attempted and implemented in recent times demonstrates one key point: there is no single, ‘special’ procedure in place for enacting constitutional change in the UK. The only obvious precondition that must be satisfied in order to secure significant constitutional reform is that the government is able to get parliamentary approval for its proposals. Referendums and Constitutional Change To the extent that there are ‘special’ constitutional measures in place, these are applied at the discretion of the government, and in a decidedly non-uniform manner. However, there may well now be a case for saying that major constitutional change is now in practice dependent on public approval in a referendum. Yet this leaves the question of what is considered ‘major’ constitutional change in the hands of government. No referendums have been proposed in relation to fixing the length of parliament or significantly reducing the number of MPs, both arguably major constitutional issues. Yet, the coalition government has promised, via the current European Union Bill, that any significant transfer of power to the EU must be approved in a referendum. A key question for consideration is the extent to which a referendum is both a necessary and a sufficient condition for legitimating constitutional change. Its current status is possibly that of a necessary condition (depending on how we define ‘major’ change). But it is far from clear that is also sufficient. That it is not sufficient is illustrated by the process of constitutional change surrounding the Parliamentary Voting System and Constituency Act 2011. The referendum scheduled for 5 May 2011 will determine whether there is popular support for changing the electoral system used for UK general elections from Single Member Plurality to the Alternative Vote. However, this major piece of constitutional change secured legislative approval in the absence of wide-ranging consultation and scrutiny, and within an almost comically hasty timeframe, as noted by the Political and Constitutional Change Select Committee (HC 437, 2010-11). The closed nature of the legislative decision-making process with respect to this bill illustrates how political elites can so easily determine constitutional directions. Public participation comes at the end of the process, through the referendum, rather than at the start in terms of shaping the contours of the debate itself. This raises important questions. Is constitutional policy making in the UK a necessarily elite activity, largely involving only politicians and experts? Or

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should future processes of constitutional change seek to institute new mechanisms and strategies designed to foster broader public involvement? Possibilities for Participation Part of the reason why popular participation in constitutional matters is restricted to, at best, making Yes/No decisions in referendums is because of common assumptions that such issues are simply too complex for most people to understand. Yet this is not the case. One of the most commonly cited examples of successful participation in decision making is that of the British Columbia Citizens’ Assembly on Electoral Reform created in 2004, which has been extensively studied by those interested in democratic participation. This Citizens’ Assembly brought together 160 randomly chosen members of the public, who spent eleven months examining electoral systems around the world, and who were charged with making a single recommendation for electoral reform which would then be put to the British Columbia electorate. The subsequent narrow failure of the referendum to secure the required turnout threshold should not obscure the utility of the experiment in demonstrating that not all proposals for constitutional change must necessarily emanate from the government. Even if a model of the sort adopted in British Columbia proved unpalatable, the fact remains that processes of constitutional change must expand beyond political and expert elites. Constitutional leadership may well belong to those who exercise political power, but constitutional participation must mean more than turning up to vote in a referendum. What might enhanced public participation look like and what would it involve? First, we should jettison the notion that just because we cannot interest everyone in these issues, means we should not try to interest anyone. The British Columbia model relied on representative structures invested in non-politicians, and in so doing succeeded in overcoming the cynicism barrier often thrown up the public whenever a politician speaks to an issue. Constitutional Forums At the very least, we should consider whether a specified and extended period of consultation should precede all major processes of constitutional change. This would in part ensure there is sufficient time for the usual expert and specialist input into legislative/technical proposals. But, if properly designed, it could also institutionalise processes of public discourse and debate on these major questions. This could take many forms. One option involves the creation of a series of Constitutional Forums, both physically and online. Members would be chosen randomly, in the style of the British Columbia Citizen’s Assembly. These Constitutional Forums would then be exposed to information about the constitutional issue under review, and, through discussion aided by professional facilitators, produce recommendations to the government. These recommendations would come in advance of any legislation and would be advisory, as is all information solicited by government. The creation of such Constitutional Forums would ensure that the participation of the general public is not restricted to the end of the constitutional reform process by means of a referendum vote (where one is given), and thus make it possible for constitutional policy-making to be influenced at the start when the terms of the debate are still being drawn. There would of course be much to flesh-out in terms of detail, and I have not gone into specifics in this paper. Such an innovation is not in keeping with the ‘British’ way of doing

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constitutional politics. And it would take committed organisation and resources to maximise the chances of adding something meaningful to the process. Yet we hear much talk about the need for a ‘new politics’ and to restore the public’s trust. If this is to be anything more than just talk, then we need to start thinking far more innovatively about how we enable the public to influence processes of constitutional reform right from the start. Perhaps the time has come to take some risks and think of trying something new. 30 March 2011

Oral evidence, 27 April 2011, QQ 107-132

Evidence Session No. 4 Heard in Public

Members present

Baroness Jay of Paddington (Chairman) Lord Hart of Chilton Lord Crickhowell Lord Irvine of Lairg Lord Norton of Louth Lord Pannick Lord Rodgers of Quarry Bank Lord Shaw of Northstead ______

Examination of Witnesses

Dr Alexandra Kelso, [Lecturer in Politics, University of Southampton], and Professor

Matthew Flinders, [Professor of Parliamentary Government and Governance, University of Sheffield].

Q107 The Chairman: Good morning to both of you and thank you very much for coming. We do record these sessions; so if you would be kind enough, when you first speak, to identify yourself for the record that would be very helpful. Thank you also for your very useful background papers which have really enabled us to get a view of what your main concerns are and also avoid the necessity of taking up time by asking you to give an opening statement. So, if we may, I think we will just plunge straight in with some questions and probably questions in which we quote back to you some of the things that you have said. Professor Flinders, could I perhaps begin with you? I thought one of the interesting things you said was, if I may quote, “One of the most curious elements of monitoring the process of constitutional change under the Coalition Government has been the manner in which the

98 Dr Alexandra Kelso and Professor Matthew Flinders traits of the previous Labour Government”—and then you describe them in fairly negative terms—“have been continued”. Now, why is that curious? Because, of course, it seems to all of us that if you have an executive with a programme that it wants to carry through and it has a majority in the House of Commons, it is pretty much bound to act in that way. Professor Flinders: Yes. I am Professor Matthew Flinders, University of Sheffield. I think it is curious for two main reasons and, in a way, why I think this Committee’s inquiry is so important at the moment is that there is a real opportunity and I think a sense of wanting some change to how things are done. The reason I think it is curious—and it is not just about the previous Government—is that all governments in opposition tend to get incredibly frustrated, as do many observers, with our rather ad hoc and flexible approach to constitutional reform and yet, too often, when they move into office they adopt exactly those sort of quite loose structures themselves. The issue about the manifesto and governments coming in to implement policies is absolutely right. We elect politicians to implement public policy. I think the real big issue comes particularly when constitutional reforms are then brought forward that were not included in any manifesto. So, yes, it is funny; history never repeats itself, but it certainly seems to rhyme very frequently.

Q108 The Chairman: Take an example. As you say, you can be frustrated as an observer or as somebody monitoring constitutional change. If a government decides that even if something was not in the manifesto it is going to do it, what is there to change the process? What levers are there to change the process? Professor Flinders: I think that is the real question that the Committee is tackling. It is this issue between rigidity and flexibility and I get the sense that this Committee is really looking at whether there is a need, to use a famous parliamentary term, to shift the balance from the pure flexibility we have to putting some brake on the capacity of new governments to bring forward reforms. The question then is, “How do you impose a brake?” I think there are a number of mechanisms through which you can seek to put some controls on the capacity of new governments. For example, there is a famous quote by Peter Hennessy about constitutional change on the back of an envelope and the way the abolition of the Lord Chancellor was suddenly announced, the creation of a new department. The Bank of England reform was not in the manifesto at all. I was reading through the previous transcripts of evidence and it was very interesting. There were a number of circular arguments and this issue of how you defined reform kept coming up, “What is the difference between change, reform and revolution?” I suppose my starting point is that reform, to many people, is a bit like apple pie and motherhood: very hard to argue against; whereas my position is that bad reform can be more problematic than doing nothing. It is about how we inject some review system, not to tie the hands of the government but simply to inject a degree of taking of stock, taking a breath and, in fact, also lessons learned which is something we are not very good at.

Q109 Lord Irvine of Lairg: What brakes are you recommending? Professor Flinders: I think there are a number of different brakes that could be implemented and, of course, we all exist in a political climate where we have to have our political antennae and radar bleeping loudly. I personally think that there is now a good case for a strengthened form of committee on the constitution; a committee of both Houses that was

99 Dr Alexandra Kelso and Professor Matthew Flinders building upon recent reforms that we have had brought forward after the Wright Committee to, in a sense, shift the balance of power more broadly back between the legislature and the executive, that would allow a committee to issue authoritative reports and ensure that a certain staged process had been gone through.

Q110 The Chairman: I think the point is when would this be instigated? In a sense what you are talking about is a kind of super pre-legislative scrutiny. Is that what you are suggesting in terms of parliamentary procedures or does it go further back than that? Professor Flinders: I think, in a way, you can see a spectrum of reforms that could be brought forward with the implementation of some bolstered pre-legislative scrutiny probably being the most realistic reform; although you could go much further in arguing for the implementation of much more formal and legalised brakes on the constitution requiring super-majorities or even a role for the judiciary. But, of course, as soon as you start going down those paths you churn up the bigger questions about the notion of parliamentary sovereignty, the role of the Supreme Court. We are dealing with something that is like a very tight knot and as soon as you start pulling on one end it gets a lot tighter and more complex.

Q111 Lord Irvine of Lairg: We want you to give us some solutions. Professor Flinders: In terms of one possibility, and from reading previous transcripts, one pragmatic step forward to place limits on the capacity of the executive would be a joint committee of both Houses that may be in itself bolstered or supported by a committee on the constitution. I know that is something this Committee looked at under Lord Norton over a decade ago and at that time I believe the debate was quite close but you were not convinced that it was needed. I think one of the challenges faced by all parliamentary committees is that they often struggle in relation to the resources and back-up staff that they have. A joint committee of both Houses would give it the credibility the legitimacy and the prestige. A separate committee on the constitution, a standing committee, feeding and fuelling that joint committee would give it a certain amount of teeth.

Q112 Lord Hart of Chilton: What would that committee do? Professor Flinders: It would essentially be there to provide authoritative and independent briefings on the rationale for the reforms, the likely impact of those reforms. In a way, the preventative knowledge of the government that these issues exist is as important as what those things do. So if there were to be a joint committee of both Houses, I think essentially what you might do is make sure that government ministers knew that the reforms they brought out would have to go through a system, would be closely analysed and would have to go through a clear process, which I do not think is all that difficult. I mean, defining the constitution: the Committee, in many ways, had to do that right at the beginning of its work in order to know what it was doing. You had the interesting list by Professor Baker, I think it was: eight points. I think there are three points missing. But essentially you can pretty well carve away the basic framework of what is constitutional— there will always be some fuzziness at the boundaries—and then applying some sort of process around that with a bolstered committee that has its own research support I think

100 Dr Alexandra Kelso and Professor Matthew Flinders would be important for not only examining government programmes when they came in but also forcing the government not to rush through changes. I could give you a very good example if you would like. The Public Bodies Bill was a very good example of a piece of legislation that was rushed out very quickly. Now, if that had been an authoritative unit that would have had an opportunity to examine that in great detail—as this Committee did—earlier and the Government knew that was going to happen, I am sure the Government would have spent a little bit more time and a little bit more thought not rushing through such hasty legislation. The Chairman: Now, I have Lord Norton, Lord Irvine and Lord Crickhowell all wanting to ask follow-up questions. Dr Kelso, I recognise that you have not been involved in this conversation but do please chip in. There will be further questions, I am sure.

Q113 Lord Norton of Louth: We can come up with the proposals that may be desirable for ensuring that a government is subject to more detailed scrutiny. I am concerned with how we get from here to there. They might be desirable, but how realistic? How much will be dependent on Parliament itself and the extent to which Parliament itself can act independently of the executive? How much are you looking for the government to do and what safeguards are there to ensure that whatever it says “yes” to can be maintained? Professor Flinders: You are absolutely right; it is very easy for us to come up with ideas about what we could do. What is often missing is the political will to make them happen and that has been the same for decades, as you know better than I do. I think, though, that we are, at present, at a very important point in our political history because life beyond the Palace of Westminster is changing. It is changing very dramatically. It is changing because society is getting more complex and its demands are increasing. Also, it is very interesting; I have been reading all the information about this Committee’s work and the big gap that I see is the public. This is a debate about elites and there is a lot of current work about the massive decline in public trust in politicians and political institutions and, in a way, I see the role of an academic as a sort of a bridge. The public do not hate politics, which is what a lot of academics think. The public do not understand politics. So in a way this is an issue not about the executive and Parliament, but between the executive, the Parliament and the public. I think there is a real public pressure now for clarity about why things happen and what is the driving impulse behind them.

Q114 Lord Norton of Louth: But how do you ensure that public action is then translated into action? Because it strikes me you only achieve change either through imposition—which means the parliamentary will has to be there—or government itself is persuaded it is in its own interests for change to occur. So I am wondering which route you think might be realised. Professor Flinders: I think it is a case of both routes: public pressure and awareness. I mean, it is very interesting; Nick Clegg appeared before the Committee to talk about the Coalition’s reforms about restoring faith in politics. Restoring faith in politics will only occur when the public reconnect and understand what is occurring and why. One of the great problems with the referendum coming up on AV is that the public are very well-attuned to electoral reform. They are not interested in it but they know what AV is about and they are very concerned that this is not a constitutional reform for the public’s interest. They see it as a deal between two parties to form a government.

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Given that we are in an interesting stage with the Coalition Government, given that there are a huge number of constitutional reforms coming through, the implications of which have not been thought through at all, and given that also governments tend to become much more open to major reforms when they know they are on the way out than when they are on the way in, I think there is a sense that, if it was a realistic, well thought through reform to slightly shift the balance, this could be a good time.

Q115 The Chairman: Could I just interject? Dr Kelso, you said in your submission that you felt that the lack of clarity about this was one of the central compelling questions in contemporary UK politics, which in a sense is reinforcing what Professor Flinders has just said. But I think, to us cynics around the table who see all the vox pops on television with people showing total disinterest in the referendum, for example, it is a queryable statement, to put it politely. Why do you feel that it is so compelling? What is the evidence for that? Dr Kelso: Are you talking about the role of the public in this? The Chairman: Well, you said that the lack of clarity or the absence of a clear blueprint for the way we do these things is one of the most compelling questions. Dr Kelso: It is compelling because we can sit as academics and you can sit as politicians with a reasonable grasp of how these things work. To the average member of the public most of this is just completely baffling. It seems to come from nowhere very often. There seems to be no movement on a great many different constitutional issues over the course of time and then suddenly there is a great flurry of activity and a great haste to achieve some kind of outcome at the end, without any clear explanation for why that is the case. So the lack of a blueprint is worrying for a number of reasons. It is worrying, first of all, because it can result in bad constitutional reform and I agree with what Matt has said; just because you call it reform does not mean it is inherently a good thing.

Q116 The Chairman: No, I think we are all agreed on that. Dr Kelso: It can sometimes be hugely problematic. But on the other side of it, the fact that there is no clear set mechanism in place, other than the fact that a government can secure a parliamentary majority for change, leaves the public feeling very excluded from this. It seems to me the AV referendum is a very good example of that because prior to the last election the idea of moving towards electoral reform that involved AV simply was not on anyone’s agenda particularly. Suddenly that is the choice that has been given and those are the choices, between single member plurality and AV. It is possible to give those choices because it is a process controlled by elites and I think that is where my own interest is, in looking at how we expand the discussion outside of elites. So, yes, we do have to have a discussion about what would a parliamentary committee look like that looked at these things, but a lot of work has gone on, on that, before. I think we have to push the discussion outside of just looking at how we would change legislative or parliamentary institutional processes, to look at how we involve the people in this. Now, the kind of solutions that are out there, these kinds of discussions, can be prone for a sort of sneering contempt in some cases, “Well, the people aren’t interested. Why would we try and institute mechanisms to make people interested who don’t really care?” I think that is a very dangerous route to go down. The fact is that there are a great many people who are

102 Dr Alexandra Kelso and Professor Matthew Flinders interested, who care a great deal, but have choices forced upon them that they may not be inclined to have made were those not the choices placed before them in the first place. The Chairman: Not to interrupt you, but I think you have touched on an extremely important point and if we may come back to the questions which you raised—for example, with your example from British Columbia and so on—slightly later. But can we just continue the internal discussion, if we can call it that, for the time being?

Q117 Lord Crickhowell: Dr Kelso has just made briefly the first point I was going to raise. Professor Flinders, I think, has used the words “constitutional reform” on about 20 occasions and, as Rodney Brazier pointed out in a note to us, it is a very loaded word. In earlier meetings I have said it is a political word and the present Deputy Prime Minister is an arch exponent of using the word “reform” in a political way, “This must be good; it is reform. People must do it because it is reform”. I am very anxious that when we come back and look at these issues we will talk about constitutional change and the need to persuade people that the change is necessary and desirable. I fear if we jump to the word “reform” we are weakening the whole case for an examination. I want to move on to a second point. Right at the start, I think, Professor Flinders talked about the significance of manifesto commitments. Well, yes. Those of us who have fought general elections on manifestos are rather more cynical about manifestos and whether anyone has ever read them or taken any notice of them, including those of us who fought the elections. But we are now in a different situation anyway, one that Dr Kelso has just referred to: a Coalition which has a deal that brings together a range of policies, which may or may not have been in a manifesto, in order to create a government. How do we deal with that situation? That takes us way beyond manifesto commitments into things that were never contemplated by either party and adds a further difficulty, which is the urgency of the situation. There is all this talk about pre-examination and so on. But if you have two parties that have been brought together on deal, there is an urgency in the timetable to get that deal implemented in a balanced way, which is one of the reasons that I think so many of the mistakes that Professor Flinders has described in the Government’s approach have occurred. They have a deal. They have an urgency to get on with it and they ride roughshod over all these lovely theoretical ideas that you advance and we all want. How do you deal with this particular problem? If we are moving into the world of coalition it is not a question of manifestos. It is a question of political deals and the government that has been created having the executive power to push ahead in order to safeguard and maintain the work of that government. Dr Kelso: The only way to my mind you can get around preventing coalitions coming into life, or any government for that matter coming into office or forming a coalition, and a key plank of it being some kind of constitutional deal that as to be pushed through very early in order to assure everyone involved that this is a worthy agreement is to have some kind of legislation in place that sets a minimum timeframe on the passage of constitutional legislation. There has to be a minimum timeframe involved before any piece of constitutional legislation is able to either enter the formal legislative process and/or be approved. Now, that is one possible practical solution.

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But it is an opportunity to take it beyond our legislation, to get beyond it simply being about committees of the whole House, that you place a timeframe on it. That then becomes something that coalitions, if they are to be formed, are aware of. In other words, it cannot be something that has to be introduced the first day that Parliament is convened. It cannot be something that must be very quickly rustled together in order to meet political party demands rather than constitutional propriety demands. That is one way forward, I think; to have some kind of set timeframe on it. What would that timeframe be? Some of the examples I looked at and that I gave some information on in the paper that I submitted to you—and I know we are going to come back to it—for example, the British Columbia electoral reform; that process took close to a year from the beginning of creating the forum to the end when they produced results. That gives an indication of how long matters of this magnitude ought to be subjected to before any serious legislation is introduced. Dr Kelso: Now, that goes back to Matt’s point: that there is a balance here between flexibility and rigidity, which he talks about in his paper. As soon as you start introducing any kind of measures that put constraints on the ability to act you are going to sacrifice flexibility and that is where the critique can come from. But ultimately it is about choosing what it is that you value. Do you value the desire to slow down these processes so that there is more time or do you prefer that government can act quickly, if sometimes hastily?

Q118 Lord Irvine of Lairg: Professor Flinders, speaking for myself, I was very attracted, as I think you were too, by Sir John Baker’s attempt to assist us and by listing out categories of legislation that you would regard as constituting substantial constitutional change. But, intriguingly, you said that there were three points missing and I would like you to tell me what they are. Professor Flinders: A very quick answer is that the electoral system did not seem to be there in a designated form, the Bank of England or war and emergency powers. Those three seem pretty obvious areas that were not included. One of the great problems here is that in a way if you try and list everything it becomes so big and unwieldy it is not of much help. I do think it is very interesting; coming up with a statement about how you define the core elements of the constitution is not very hard. Designing a process through which all pieces of legislation that are defined as within that remit must follow is not very hard. What is harder is getting the government to accept that they need to have a restriction on their powers. What is interesting, I think—and this goes back to border issues—is that in British politics, because of its very adversarial nature, new governments come in and it is as if there is a land grab. Ministers are so scared that they are going to lose this new window, this momentum— they are there to change things—and they will rush in very quickly and then often you go through a more long-winded process where committees like this one then provide the fine- tuning, the amendments on the legislation, that really should have been done much earlier. I am talking about having a very clear but proportionate system for legislation that is defined as constitutional where all governments will know that anything they propose, any coalition deals that are put together, will still have to go through this process to prevent the hastiness that currently seems to come out. I think there is also a bigger issue here. At the moment there does not seem to be much of a joined-up approach to the constitution and I think that is another very big issue. If you look around what is going on—

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Q119 The Chairman: What do you mean by “joined up”; within government or across the legislation? Professor Flinders: No, I mean across the government. This is why I think a review in a joint committee would be so important. At the moment we have various different departments and various different ministers spinning off—this is not a party political point; this tends to happen under all governments. We have strong ministers in departments who spin off with very big reforms, but without thinking about how all the bits of the jigsaw fit together. Now, if you just look at the moment with the Localism Bill, which is a mighty monster—what is going to happen with the elected police commissioners—that holds all sorts of risks. The Health Bill: all of these elements are being driven largely by one dominant individual and how they all map together, how they work as part of a coherent whole, is an area where I think the Government lacks a central oversight capacity ensuring that a legislative brake might help promote that broader picture.

Q120 Lord Irvine of Lairg: But what process are you recommending? All you have said specifically is that maybe there should be a joint committee of both Houses looking at proposals for constitutional change. Then you said that you felt that such a committee would be better resourced. Speaking for myself, I do not feel that this Committee has any shortage of resources or any shortage of high-quality advice, both from the clerks and from outside advisors. So what process do you feel that a joint committee should follow? Is there anything more that can be said about a joint committee than that what it says might carry more weight? Professor Flinders: Well, I think it would carry more weight. What would be important though is that all pieces of legislation that the committee interpreted as sitting within its definition of being constitutional would then have to go before the committee for a pre- legislative review, screening, discussion, reporting, in a much more robust way. What I am trying to stop is the capacity for governments to be able to just announce reforms and drive them through without having to acknowledge any parliamentary mechanism that would just halt them for a short time. Dr Kelso: On that point, if I could add, that is where the issue of time comes in. So in terms of specific suggestions, just simply creating such a committee and enabling it to look at pre- legislative constitutional legislation sounds fine but there would perhaps have to be a compulsion that it had a set amount of time in order to do that. Quite how long that would be is certainly up for debate but some committees have had only a few weeks. So quite serious legislation in a pre-legislative way would have to be jettisoned. It would have to become an accepted part of the process that with any legislation that fell under the description set out as constitutional legislation, part of the deal, part of the way the game was played, was that it was going to spend X amount of time in committee; enough time for that committee to be able to take enough evidence. Once that becomes part of the process it might well not be something governments like because it slows them down, but that is the whole point of what you are trying to suggest might be the way forward.

Q121 Lord Pannick: Dr Kelso, you mentioned just now “compulsion”. That is the point. Are you and Professor Flinders recommending that Parliament should adopt a series of

105 Dr Alexandra Kelso and Professor Matthew Flinders conventions that would be subject to the power of government to override them or are you recommending that there should be something more than that? Dr Kelso: Any time we talk about a process where it is more than convention, everyone starts screaming about parliamentary sovereignty. If we are serious about changing this we have to go beyond assuming it cannot be done because government is able to exercise the majority to override anything that is simply a convention. I am not sure about whether it should be a convention or whether it should be something stronger. I do not know what Matt’s views are on it, but I think it should be reasonably lengthy. I think for government to step back and say, “We do not accept there is a need for a 12 or 15-week period of time for Parliament to study this in advance of something happening”, could over time, hopefully, become such a difficult thing for a government to justify doing; that it did not think Parliament needed any time to look at what could be quite a serious issue. As we know, many of the problems associated with legislation are because there has not been enough time to root out all the possible problems with it and to tease out some of the concerns. The more time you can get to do that, although it might slow down the process, the better. But, in terms of the specific mechanism, I would have to think about it a little more possibly. Professor Flinders: Obviously it would be up to the committee. The committee would not need to inquire into every single piece of legislation. I mean, they would have to be parsimonious in their definition of what is constitutional. But I think, realistically, there are a number of examples, if we just go back in recent history, where the executive was originally adamant that it would not do things and then, because of a combination of pressures from different points within the House, it decided to relinquish a certain degree of control. I am thinking about the Prime Minister appearing before the Liaison Committee. For a long time that was something that would not happen. Now it would be very hard for a Prime Minister to go back and refuse to honour that convention. Look at what has happened with select committees and the introduction of pre-appointment hearings. For a long time various governments refused to give select committees any capacity to interview ministerial appointments to public bodies. I think the key issue here is clarity. The issue is not about constitutional reform—maybe reform is a loaded question— what I think we are talking about today is good governance. Good governance is transparent, it is clear and it provides an opportunity to reflect before decisions are made rather than then trying to close the gate once the horse has bolted. Essentially that is what we do not have in our system. It is well known. The question is whether there is a window of opportunity now. I remember Tony Wright talking about parliamentary politics being about cracks and wedges; that often you have to get the first small reform that then you can build upon over time. Maybe this Committee, or maybe a joint committee of both Houses, and a clear definition with a process does not sound very radical or very strong, but it might be a first step towards applying some sort of brake that could then evolve in change.

Q122 Lord Rodgers of Quarry Bank: If I could try and clear my own mind, if I may, and ask a rather simple question but it may have been swallowed up a bit by earlier discussion. The constitutional reform process is the subject of our discussion. When does such a process stop? We have discussed it on and off. For example, you referred to reading the transcript and looking at what Professor Feldman said at that time. Then you referred to the

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Whig version of history; it was progressive, steady improvement over time. Do you take a Whig view? Professor Flinders: I take what you might say is a Whiggish view, which is based about realism and a commitment to both continuity and change. In a way this is the balance that this Committee is trying to pull off at the moment, which is how to still ensure we have parliamentary sovereignty and a strong government while at the same time, in some important areas but a relatively small span of areas, we are discussing whether to impose some clearer limits on their discretion. So there are many different options we could discuss, like the introduction of super-majorities within the House, for constitutional legislation. Now, realistically, I do not think that would fly with the Government at the moment. I think what might fly would be change of an evolving process based on the committee system which has, in recent years, moved forward very significantly. Does that answer your question?

Q123 Lord Rodgers of Quarry Bank: I do not think so. Maybe I have not asked a sufficiently clear question. I am just thinking, are we rolling on forever and ever having constitutional reform and what is the end product? What are we expecting? Is there some point—not in my generation or the next one over—at which there is no need to have legislation in order to get constitutional reform or change, whatever the word is? Professor Flinders: I am not sure I can give a perfect answer to that question. I think we are looking for a more transparent and clearer process that allows for consultation and reflection before constitutional reforms are passed, which is often what we simply do not have at the moment. It is very interesting; academics from around the world often phone me or email me and say, “I’ve just read that this is happening. What is going on?” It is absolutely impossible to tell them, to explain. They cannot believe it. They are questioning, “Where is the map? How does all this fit together?” They think that somebody here in the House knows and the fact is that very often they do not. It is being driven by one department and even ministers who are in the Cabinet are unsure what is going on. It is that broader picture and a shift towards clarity, transparency and broader public understanding and debate about how our constitution is shaped. At the moment we do not have that.

Q124 Lord Rodgers of Quarry Bank: Is reform subjective? Professor Flinders: Of course it is subjective, which is why I think throwing out reforms to a process of discussion is so important. At the moment I am recording a series for Radio 4 very foolishly called In Defence of Politics, going back to Bernard Crick’s famous book which is 50 years old next year. Of course, Crick’s argument was that politics cannot make all sad hearts glad. But by promoting transparency and explaining why things are happening, that will allow people—even if they do not get what they want—to at least buy into the system. What we have at the moment is a very insular system where very few people understand it and, therefore, struggle to buy into it. Dr Kelso: I think if I could add to that. It is subjective and that is exactly the reason why the process through which debate surrounding what the constitution should evolve into and become in the future has to be made clearer. We cannot ever find some constitutional end point where everyone agrees that we have reached some kind of constitutional perfection and we do not ever have to do anything else. That is never going to happen because

107 Dr Alexandra Kelso and Professor Matthew Flinders societies change, political demands change, expectations change and processes and systems have to change to meet those things. But the better you can make the process through which debates and discussion and disagreements are handled, the more likely you are to make people feel that the constitution as it exists, imperfect though it is, is hopefully a reflection of the best will of what society as a whole wants; whereas right now, it is decided by elites to meet elite needs. I understand that is what we are all trying to get away from. But any time we throw up any objection— “What about parliamentary sovereignty? How could we possibly make government agree to this constraint in its power?”—it is another obstacle in the track of taking that forward. The better you make the process, the better we can then handle disagreements over what the outcome of constitutional change secures.

Q125 Lord Pannick: I want to ask, Dr Kelso, about your proposal for dealing with elitism; that is, the British Columbia example. Is this an appropriate moment to deal with that? You suggest we should consider moving towards the British Columbia Citizens’ Assembly on Electoral Reform type model. You take a random selection of 100 or 150 people. Can I ask, what is the advantage of that over a traditional model in which you have proper pre- legislative scrutiny and you have proper public consultation where everybody can express their view? At the moment I do not really understand why the answer to elitism is to introduce a system that has, it seems to me, the worst ingredients of anti-elitism; that you take a random group of people who may or may not have any knowledge, any interest, anything valuable to contribute, and you treat them as somehow more valuable than a proper public consultation. Dr Kelso: I disagree, I am afraid, with the premise that you put forward. I think that is an example of the sort of sneering contempt for public participation in the process that is out there. I like the British Columbia example for a number of reasons. I do not think it necessarily has to replace the kind of pre-legislative scrutiny processes that we have been discussing. I think those are still valuable and I do not think it necessarily has to be a substitute for them. I think on some occasions the issue may be of such constitutional magnitude that it can be helpful to explore other ways of going about it, which is why I like the kind of story that the BC model gave us. There are a couple of things I like about it. First, it is still representative democracy because it is still a representative sample of people. A referendum asks people what are often very simple questions about things which, as you have said, they may not necessarily know a great deal about in the round. One of the benefits of this model, and I think one of the reasons it had a reasonable degree of success in terms of the process of the BC institution itself, is that it brought together a group of people who, yes, may not have had a great deal of knowledge and understanding to start with; but it provided them with that knowledge. That is why it took so long in order to get to that point of being able to make a deliberation and make a recommendation, because it provided them with the knowledge. So it brought in experts and that is not that different to what parliamentarians do. Parliamentarians faced with a complex public policy issue hopefully go and seek advice; hopefully take evidence; hopefully go and speak to people who are perhaps, in detail, involved in the process in order to get a better handle on it. It is not that dissimilar to what politicians do in a legislative scenario and a government scenario anyway. But it was also tied in with an end product of the referendum. So this wasn’t something that existed in isolation. It was not something that the public was going to

108 Dr Alexandra Kelso and Professor Matthew Flinders have to be forced to swallow in the end and take the judgment of 160 people over their own. That informed the work that they did because they knew the stakes were high; that whatever option they suggested was going to be put to the people and it was not an academic exercise. It was not an intellectual exercise. It did not work. The referendum was not successful in the end because there was a super- majority associated with it, which it missed by a couple of per cent. But the reason I like it is because it is one way of tackling the issue of how we involve the public better than we do right now. It is about trusting the public to be able to participate in a process about something that is very complicated, that is detailed; to be able to trust them to listen to experts, to give their time, to commit to a process and for others around them, other members of the public, to see that in place. I think that is a very encouraging example, that people can be trusted with information about their own constitution to make a judgement about it. Just to be clear, I do not think it has to replace pre-legislative scrutiny and so on. There is certainly no way you are going to have a process of this kind for absolutely every constitutional issue that comes about. But for some of the very big issues I think it may well be a worthwhile model to think about in the future.

Q126 Lord Pannick: Can I just make clear, I am not sneering at public consultation. On the contrary, I want to see more public consultation. I want to see people fully informed about the issues before any decisions are taken. My question is whether it is better to do this through 150-160 people or rather to focus on informing everybody; because the 150, if they are going to look at this seriously, are going to be a very small cohort of people who have the time. Most people have other things to do in their lives. That is why they are not politicians. Professor Flinders: Sure. I can certainly send you some of the background documents that they produced as part of their work and they did not pressgang 160 people into doing this when they did not want to. They were willing participants and they paid attention to the issue of representativeness and they were randomly selected. They were not—

Q127 The Chairman: Did they report back then, Dr Kelso? Picking up Lord Pannick’s point; all right, you have 150 or however many people it is who are extremely well- informed, have taken note of these issues. But what is their responsibility? You said they are representative. Do they go back to their communities? Does it work outwards, as it were, as well as inwards? Dr Kelso: The process of representation is that you entrust a small cohort of society to— The Chairman: Sorry, I misunderstood your point about representation. No, it was my misunderstanding.

Q128 Lord Pannick: Can I just ask one question? Surely MPs are supposed to be representative. Why should one be more interested in the views of 150 randomly selected people than in the activities of Members of Parliament who, if they are doing their job properly, should surely inform the people in their constituencies? If they do not then they should be voted out, or is that an idealistic position?

109 Dr Alexandra Kelso and Professor Matthew Flinders

Dr Kelso: Well, I think you are slightly spinning it in a difficult way I am struggling to understand. It is not saying that politicians cannot represent the public and in fact do so. But on some big constitutional issues, we are talking about changing the fundamental rules of the game, about how the constitution operates—which is what this was about. This was not about education policy or health policy or how to divide up some kind of social services budget. This was about changes to the electoral system. So I think on some of those macro-constitutional issues the benefits of taking it to this non- politician group of people is that it enables the public to see that politicians are willing for the public to come forward with solutions in this organised way; that they can be trusted to do it; that the politicians do not feel that they themselves are the repository of all information about how the constitution works. It also takes it beyond this idea that we have to be careful about involving the public in constitutional issues because they are so complex. The evidence here is that these people, once they were properly facilitated, given the information by academics and by people who were experts in various electoral systems and how they functioned, were quite capable of thinking these issues through when they were given time to do so and debating among themselves and coming up with solutions in a way that is what we understand by representative politics; that you entrust people to make those decisions on your behalf. It is not something that would apply to every constitutional issue out there; that you would want to look at every issue, but for some of the big ones. If this model, which I have explained in the paper a little bit, had been put in place in advance of the current electoral reform referendum in this country, I would be very surprised if the solution that we would have been given was AV. It would be surprising that that was the solution that was picked up on. Instead what we have is a process where the Yes Campaign are trying to educate people about what AV is when in fact it probably was not anyone’s first choice to begin with. So the very fact that there was a discussion in place, that they were able to produce documents that outlined the rationale for their decision-making and how they reached it, perhaps spoke to people in a way that it does not when it comes direct from politicians. But that perhaps is one step towards starting to demonstrate that this discussion we are having about reconnecting people with politics and with politicians, re-engaging and rebuilding trust, perhaps that is one way to start going down it. It is not a panacea. It is not going to fix everything. Certainly in the BC example the electoral system remained unchanged. But when you are talking about process, I think there is something there.

Q129 Lord Crickhowell: Just a follow up. The old-fashioned way of doing this, rather than having 150, was something called a Royal Commission. I happened to enter politics at a time when we had had Royal Commissions looking at local government reform. It was a huge issue for a lot of people and the British public became extremely well-informed about the issues and felt very, very strongly about them. I suppose if I ever made a name for myself in my own constituency it was on the issues that arose from that process. So there are long- established ways of looking at major issues. Are we making a mistake in moving away? I mean, Royal Commissions are now considered bad things and being kicked away, out of touch. Is there something to be said for that rather more formal way of looking at the thing rather than your random 150? The Chairman: Can I just add to that, because it is something that we have discussed? If the British governance model of good parliamentary and good constitutional government

110 Dr Alexandra Kelso and Professor Matthew Flinders was working in terms of the Cabinet committee structure—the ways in which every age was golden in the past, as Lord Crickhowell said, but we know that is not true—in which you did have these more formally consistent groups of ways of processing constitutional change and if we, in a sense, reverted to those more formal arrangements, would that answer some of the questions? I mean, in a sense, do we have a model already which, if we properly organised it, would achieve what we want? Professor Flinders: We do have a model and I think it may have worked. I presume you are talking about the Redcliffe-Maud Royal Commission on Local Government and— The Chairman: The Royal Commission on House of Lords Reform, for example. Professor Flinders: Yes. I think one of the issues is that society has changed. It might not be that the model does not work so much. I am thinking about the last Royal Commission on the Constitution, which was Kilbrandon in 1973 and that was only on devolution. I would not argue for or against some sort of commission on the constitution but, for me, the real question and why there is this turn towards more deliberative or participatory mechanisms is this issue of reaching out. It is about how you inspire confidence and involvement among the public, because unfortunately as soon as you mention MPs or royal commissions the public do switch off for a number of reasons. Going back to the question of continuity and change, often in life the best thing for facilitating major change is a crisis and one of the things that I think is very interesting about the MPs’ expenses scandal is that it did create a momentum for significant change. Whether you agreed with the pace or direction of change or not, it did lead to real changes between the relationship between MPs and the executive. I think it would be possible now for a reform based around good governance in the constitution to, in a way, continue that momentum and get itself in place in a way that would not have been possible maybe five or 10 years later. But what is really interesting, I think, is at the moment we are in a time when the confidence of politicians—not just in the UK but particularly in the UK—is at an all-time low. It sounds ridiculous but we have said several times that the answer to this question is not about providing solutions. It is quite easy for us to come up with a set of solutions. It is about ensuring that the political will exists to get those things done. I do not want to be rude, but one of the issues is that I think we are at a time now where more politicians need to stand up and say, “Yes, mistakes were made. We’re not perfect. Politics delivers more than you think it does, but there is a time and a need for reform now”. I think that could harness some— Dr Kelso: Could I just come in on the point? I just want to recap because, with the example I gave in the paper, the number of 150 participants has been raised a couple of times. That was what suited the Province of British Columbia. If any such forum or any such model that was similar to that was ever going to be used in this country—British Columbia only has about 4 million people—presumably we would want to try something a little bit different. If it was ever going to be something we wanted to replicate in the future for another discussion about electoral reform, were it to be pursued in the future, arguably we would tailor it to fit our needs. So I want to be clear that I am not suggesting we bring this over wholesale, just the basic fundamentals.

111 Dr Alexandra Kelso and Professor Matthew Flinders

Q130 The Chairman: No. Perhaps I could ask you a factual supplementary before Lord Shaw comes in. Are there any other international examples that you could give of where you thought that public consultation on this kind of issue had been effective? Dr Kelso: Well, the reason that the BC one is used quite often is because it is an example of quite a big issue of constitutional significance being up for discussion. My colleague at Southampton University, Dr Graham Smith, as part of the Power Inquiry into British Democracy a few years ago, looked at a whole lot of participatory, deliberative models and experiments that had been tried across a whole range of settings, looking at different kinds of issues. I could certainly make that available to you. The Chairman: No, we have had evidence, not specifically in relation to this inquiry but we did an inquiry about referendums last year in which we did—thank you.

Q131 Lord Shaw of Northstead: At present, of course, the House of Commons has the ultimate authority. It can change anything. It all depends on them. But we are now having draft proposals for House of Lords reform. I am just wondering: do you feel that there is any scope here in the reform of the House of Lords whereby the House of Lords, in certain circumstances, might well have more power? For example, if a constitutional change is being proposed, it has to have the agreement of the House of Lords and, certainly more particularly, if a referendum is proposed—and we have had so many examples of hasty referendums for the convenience of the government—would it be wise for them to have necessity of agreement of the House of Lords if it were to go through? The House of Lords, if changed, it would appear, would have a much more consistent body of opinion because of the different election periods that it would have. So there would, in that sense, be no new House of Lords at any time; whereas every five years there would be a new House of Commons. Professor Flinders: I think, in theory, to have a second chamber that required a super- majority to allow a piece of constitutional legislation through would be in line with a lot of countries around the world. Whether that was a reform that a sufficient degree of political will could be put behind is a completely different matter. In the university sector at the moment, we are doing more for less. We always bid for three in the hope that we will get two. It may well be that a package with a joint committee of both Houses on constitutional reform with a definition of “constitutional issues” and then a very clear process—some sort of super-pre-legislative scrutiny—possibly tacked on to that role for the reformed chamber could work, but could also be given up as part of a negotiation that would inevitably occur. But, yes. I mean, we are unique in the UK with the flexibility that we give our governments.

Q132 The Chairman: Thank you both very much. If I can make the foolish attempt to sort of summarise what you are saying; I think that many of the Committee members are responsive to the notion of greater rigidity, in your terms, and the balance between rigidity and flexibility in relation to constitutional process. But I think you both, as well as we, acknowledge that this can only happen through being driven by political will to change. So, in a sense, although we can recommend in theory, we are still not, unless we get a political fair wind, going to change in practice. Is that fair? Professor Flinders: That is fair but I think the wind might be more in your favour now, particularly after the AV referendum, than it has been for quite a while.

112 Dr Alexandra Kelso and Professor Matthew Flinders

The Chairman: Well, thank you both very much. You have been very helpful and thank you, too, for your papers which we can certainly refer to.

113 Professor Graham Smith and Professor Stephen Coleman

Professor Graham Smith and Professor Stephen Coleman Oral evidence, 4 May 2011, QQ 133-175

Evidence Session No. 5 Heard in Public

Members present

Baroness Jay of Paddington (Chairman) Lord Crickhowell Lord Hart of Chilton Lord Norton of Louth Lord Pannick Lord Powell of Bayswater Lord Rennard Lord Renton of Mount Harry Lord Rodgers of Quarry Bank Lord Shaw of Northstead ______

Examination of Witnesses

Witnesses: Professor Graham Smith, [Professor of Politics, School of Social Sciences,

University of Southampton], and Professor Stephen Coleman, [Professor of Political

Communication, University of Leeds].

Q133 The Chairman: Good morning, Professor Coleman and Professor Smith. Thank you very much for coming this morning and for your attendance at this committee. We have had circulated to us, Professor Smith, the paper—I know that it is now some years old—that you did for the Power commission. I know that everyone will have read that with interest, but we have not got a contemporary statement of what either of you would like to emphasise to the committee. It is not obligatory, but if either of you would like to make a short opening statement, that would be welcome. Professor Smith, do you want to do that or are you happy to stand by the paper? Professor Graham Smith: I am happy to take questions as they come, to be honest. Professor Stephen Coleman: So am I. Q134 The Chairman: Fine. Thank you very much. Let me just give you a short background to where we are in our inquiry. This has arisen because of the concern which the Committee has expressed in relation to several individual bills which have come before the Committee both under this Government and under the previous Government on constitutional change, and which we have criticised because of the process by which they

114 Professor Graham Smith and Professor Stephen Coleman have been both drawn up and considered by Parliament. We felt it was appropriate at this stage to try to look more theoretically, if we can, at the process of constitutional change and how it can be improved or at least changed in various different ways. That involves, obviously, looking both at the internal workings of government and Parliament but also, very importantly, at the public and the electorate's involvement in these issues and how they can be integrated into the creation of bills for parliamentary change or in the development of policy ideas. We have had several very interesting sessions with both academics and people who have been in politics, practising these matters, on the theory of constitutional change and we are now at the point where we are looking to discuss some of the practical ways in which we could make progress on this for the purposes of our report. You may find us being slightly mundane about some of the issues we want to discuss and very practical about them because we want to have some examples and a definite idea about the way that change can be developed. We need to start with a very general question, which is: in the representative democratic parliamentary system that we have, how and why do you think that involvement of the general electorate on constitutional issues is useful or, indeed, valuable? First, could you announce yourself? Professor Stephen Coleman: I am Stephen Coleman. I am Professor of Political Communication at the University of Leeds. I think that the calls for greater degrees of public engagement respond to a perceived misalignment between the public demands of the political process and the capacity of institutions to be sensitive and to respond to such demand. The value of public engagement probably lies in three main areas. The first is, if you will, a normative requirement that those who are affected by any kind of change in the political process have their interests and, indeed, their perspectives taken into account when those changes are being considered. Secondly, there is a sensitivity to what I would call the quality of tacit knowledge, that is to say, the kind of knowledge that is not always coherent and articulate but emerges out of various kinds of public discussion. Thirdly, I would say that the value of public engagement rests upon the capacity for a movement from position stating to preference shifting, that is to say, a movement in public opinion that is most likely to occur when people are taken seriously in expressing their views in a timely fashion. Professor Graham Smith: I am Graham Smith, Professor of Politics at the University of Southampton. A lot depends upon what you mean by public engagement because, from the questions you have given us, it could be anything from providing people with information about the constitution and the changes being proposed, to consultation exercises, or right the way through to direct control by citizens. It depends on what you are talking about since the value of those things differs. Q135 The Chairman: Which would you feel was the most useful and possibly relevant? Professor Graham Smith: I am really sorry but it depends on what you are trying to do. If you are trying to change the constitution, then engaging citizens and involving them in a very strong sense is extremely important because you are changing the division of power between the ruled and the rulers. Leaving that just to politicians—who, I am afraid to say, we know have their own self-interests—is problematic given that the people who legitimate a democratic system are the citizens themselves. If you are going to change the balance of power in any way, they have a right to be involved in that process. Q136 The Chairman: Would you, for example, consider the referendum on the voting system as changing the balance of power?

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Professor Graham Smith: I would, because it changes the way in which we select our representatives. Q137 Lord Rodgers of Quarry Bank: Until the last 10 years, I had not known what public engagement meant and in a sense I am still slightly sceptical about the language. We are, as you know—this is the reason for our inquiry—inquiring into a great number of changes in legislation and constitutional changes. We have seen your 57 varieties and there have been references to New Zealand and British Columbia, but have you examples of public engagement other than the usual one of parliamentary referendums? Had you advised us, say, two years ago, in what way should the government of the day have made changes? Would it have taken much longer or have been more acute? Would it have resulted in better government at the end? Professor Graham Smith: That is a huge question. Given that we have the referendum decision tomorrow, perhaps we might think about just that one. It is widely recognised that the electoral system that we are going to vote on tomorrow is not the first preference of most people in this Parliament or in the country. It is a bizarre situation where we are voting on something that is not the first preference of most people. The process by which the decision was made that that would go forward to the public was problematic, and of course it did not involve the public. It does a great disservice to politics when that kind of major change is pushed forward as a governing compromise rather than as a really thoughtful process. That process, I would suggest, should involve citizens. The kind of process that they tried in British Columbia is a really interesting example of taking citizen engagement seriously in that process. Q138 Lord Renton of Mount Harry: Could you remind us what exactly they did in British Columbia? Professor Graham Smith: In British Columbia, there was an agreement that there was a problem with the electoral system across all political parties. Not unexpectedly, as you will probably recognise, all the political parties had their own view about what the change should be. Given the enlightened leadership of the Premier at the time, he realised that this decision had to be taken outside the realm of politicians, who had their own partisan interests in different systems. They came up with the idea of a randomly selected assembly of citizens of 160—two from each voting district—who met for 11 months and discussed electoral reform. They spent a period of time being educated about different electoral systems. They then went around the country taking evidence from anyone who was interested. They then had a process of deliberation in which they judged different electoral systems against each other, and at the end they submitted a proposal that they should move to STV. The government had said that if that assembly decided to suggest a change, it would be put to a binding referendum of the people. That referendum was lost by 2.2 per cent. It had a very high threshold of 60 per cent. If you like, I can go into a lot of detail as to why I think it failed. One reason was that they put a lot of money into the assembly and almost nothing into publicising it, so a lot of people who voted did not even know that the assembly existed. That was a basic example of poor design, but it was a very interesting process whereby citizens were involved in setting the agenda for what the electoral system should be. Q139 Lord Renton of Mount Harry: So in fact they have gone on with first-past-the- post? Professor Graham Smith: They have now because they lost the referendum. Q140 Lord Rodgers of Quarry Bank: I am still rather lost, perhaps because I ask too many questions at the same time. I am, again, trying to relate to the legislation programme

116 Professor Graham Smith and Professor Stephen Coleman

Professor Stephen Coleman: It seems to me that any attempt to have a public vote on an issue without there being a process of deliberation surrounding it does not do full justice to the democratic process. The question then is when that deliberative process needs to take place. It seems to me that it needs to take place both before as an agenda-setting process and during the voting. During the voting, of course, the process can be only indicative, because one is looking in a sense at a microcosmic public—what the public might think were they fully informed about the issues. In the end, voting has to be down to what people do in the ballot box on the day of the election. Before the voting, it seems to me that there is an agenda-setting role to be played—I think this is the one that Professor Smith was referring to and the one that they attempted to develop in British Columbia. It is based, I think, on a model that was invented by Professor Fishkin from the University of Texas, which has been trialled on a number of occasions and is called a deliberative poll. Q141 The Chairman: A deliberative poll? Professor Stephen Coleman: Yes. You take a group of people, 150 of them or so. He normally does this over the course of two or three days. You meet on the first day and carry out a survey, asking: what do you think about this particular issue? Then you have a period in which they are exposed to a series of different points of view. They are informed as much as one can hope to inform a citizen about a voting issue. They then discuss this among themselves; they engage in what we as political scientists might call trade-offs, compromises and searches for consensus. Then at the end there is a second survey. What Fishkin has found in all his deliberative polls is that the second survey always finds that there is a different point of view from the one that was in the first survey. When people have discussed something, their preferences shift. Not surprisingly, the more informed they are, the more likely they are to compromise, the more likely they are to be sophisticated and the less likely they are to be inconsistent in their preferences. It seems to me that that is a good thing. In the other part of the voting process, voting itself, there is a deliberative part and a plebiscitary part. In British Columbia they tried to introduce that deliberative part, although in fact in a rather unsatisfactory way in terms of publicising it. Q142 The Chairman: Professor Smith, do you want to add anything on the point of Lord Rodgers’s question? Professor Graham Smith: There is clearly a problem with many referendums with regard to public knowledge and public understanding of the issues. We see that at the moment with AV—how many people who go to vote will really understand the nature of the electoral system? One of the problems is trying to find a trusted information source. We only have to look at both sides of the campaign to see how they are often distorting the manner in which different electoral systems work, for electoral gain—trying to win the referendum. One of the aspects of something like the BCCA, the British Columbia Citizens’ Assembly, is that it was a different type of information source, with ordinary lay citizens who had been educated about the issue and come to a judgment. That is a very different source of information, knowledge and understanding from the normal partisan participants in a political process.

117 Professor Graham Smith and Professor Stephen Coleman

Q143 Lord Hart of Chilton: Our problem in looking at the constitutional bills that have come before us this session has been that in each case there was no attempt at consensus- building, no consultation and no pre-legislative scrutiny. I rather gather from what you are saying that it is axiomatic that before any constitutional change—and let us assume that we can define “constitutional change”, because that has been a bit of a problem for us—you should not proceed with such change unless you have involved the public in some form of consultation and engagement, and the bag of liquorice allsorts provided shows a huge variety of different ways of doing it. Am I right in understanding you to say that no government should proceed with constitutional change unless they have gone through that process— The Chairman: A process. Q144 Lord Hart of Chilton: Yes—through a process of public engagement? When we are trying to work out a programme of suggestions for how things could be made better, we are always met by a new government who say that they have these ideas—in these cases there were attempts to reconnect with the public, so it is said—and who want to get on with their programme of change. Your suggestion would inevitably involve some delay, would it not? Professor Stephen Coleman: I think that these are axiomatic and, in a sense, constitutional principles about how one goes about changing the constitution. Obviously a different mix is needed depending on different legislation and its magnitude, but pre-legislative scrutiny at the parliamentary level and public information and deliberation at the public level are both basic requirements for any form of significant constitutional change. Q145 The Chairman: You use the word deliberation, and I noticed in Professor Smith’s paper as well as in the contributions that you raised this morning that you draw a distinction between consultation in what one might call the conventional sense and deliberation. Are you saying, in response to Lord Hart, that it is axiomatic that public deliberation should be involved? Professor Stephen Coleman: I think that two problems should be addressed in relation to consultation. First, so much consultation is nominal, or one might even say “pseudo- consultation”. That is to say, the time and resources devoted to it do not really constitute consultation. The second problem is political. Consultation inevitably draws in interest groups that are already known to have a view. Public engagement brings in people who might have no clear views or weakly held views at the beginning of the deliberative process but by the end that might be different. Professor Graham Smith: You might be using a distinction from the Democratic Innovations pamphlet that you have. Q146 The Chairman: Yes, I think I am, but you have reinforced it in what you have said. Professor Graham Smith: One of the things that has been very interesting in public participation over the past decade or so is this emphasis on trying to create designs that are inclusive, where they try to create an environment within which people engage in reason- giving, considered judgment, et cetera. The reason why this interest in deliberative polls, citizens’ juries and citizens’ assemblies emerged was because of the dissatisfaction with existing consultation, which, without meaning any disrespect, involved the usual suspects and the usual partisan interests. It is an attempt to design different ways of engagement. Q147 Lord Powell of Bayswater: I was going to follow on from the point about the question of public appetite to be engaged, which will be tested tomorrow. You make the point very validly that the usual suspects come forward on almost any issue, including on

118 Professor Graham Smith and Professor Stephen Coleman constitutional change. How do you get beyond them if you have a fairly apathetic public? I note the various very interesting ideas on selecting groups from right across society, and so on. Those of us who have been on BBC television panel discussions would doubt that that ever really worked. We are always told that there is going to be an exact balance in the audience, but it never quite sounds like that when you get there. How do you overcome that problem and avoid running into government by interest groups and lobbyists and really engage the public if they are not showing a wild enthusiasm to give their views? Is there any way short of a referendum, when they have to either take it or leave it? They either do what they have to do and vote or they do not. Professor Graham Smith: One of the problems with the referendum of course is that we know that there is unequal participation across social groups in referendums, as there is with elections. In a sense, a referendum result is always slightly skewed in that way anyway. I am sure that it will be the same tomorrow as it has been in previous referendums. That is why people who have been interested in deliberative approaches have been extremely interested in forms of random selection. What they have found, strangely enough, is that when people are invited to come and do something like a deliberative poll, a citizens’ jury or even a citizens’ assembly, they take that role seriously. It is actually the power of the invite that is motivating, because you are being asked to do something special and distinctive. You are asked to play a role as a citizen, if you like. You never achieve pure random selection; those who take up the invitation are always slightly more politically interested. But they are much more representative of the general population than typical interest groups. So it is a question of design and effort and of cost as well. To get a representative sample is not an easy thing to do, but it is worth it to get away from the partisan splits that we are used to. Q148 Lord Powell of Bayswater: My unscientific impression is that it is easier to get that sort of thing in the United States where the appetite for engagement seems rather greater than it is in the UK or in some European countries. Professor Graham Smith: I disagree, because a number of these events have been held in the UK. The same thing stands. People are asked to do something out of the ordinary and they often rise to that challenge. The interesting thing about the BC Assembly is that, for 11 months, every second or third weekend everybody had to go to Vancouver. Only one person dropped out and that was because of family circumstances. It may seem strange, but people tend to enjoy such opportunities, but we have lots of survey evidence that they are not happy about how little their views are taken up by parliamentarians or local councillors. They see a disconnection between what they have done and the decision that was then made. That is really crucial. Why engage people if you are not going to listen to them? Professor Stephen Coleman: I think we should be careful about making any assumption about public apathy. It is rather like talking about public motivation to engage in sport in an area where all the playing fields have been taken away. If you do not have the infrastructure, the muscles of participation become weak. That seems to have happened around our polity to a great extent. That is not to say that, in places where things are built around this, one cannot have different results. Q149 The Chairman: I was going to ask a quick factual question. I will come back to you, Lord Powell. Professor Smith, you referred in your earlier paper to the UK Government’s 5,000-strong people’s panel, which ran from 1998 for four years and then disappeared. Have you discovered further what the background to that disappearance was? Professor Graham Smith: They were just not interested in it. The Government lost interest.

119 Professor Graham Smith and Professor Stephen Coleman

The Chairman: The Government? In a sense that reinforces the point that Professor Coleman made that there was an institutional framework but it lost its muscles. Professor Graham Smith : As I understand it, that panel was a standing committee that occasionally had its opinions taken. It was given information so was a little more informed than your regular opinion poll. The Chairman: There were 5,000 people, which is quite large. Professor Graham Smith : A lot of local authorities do this. They have what they call standing panels. Professor Stephen Coleman : There is, if I may say so, a basic scientific problem with any long-standing panel. The effect of being on a long-standing panel is that you reflect on the fact that you are part of the panel. You become more informed and are therefore no longer typical of other people. Q150 Lord Powell of Bayswater: I wondered whether Professor Coleman thought that voting turnout figures in the UK generally supported the contention that people had a greater desire to be engaged than is sometimes assumed. Professor Stephen Coleman: Only in so far as I think there is a correlation between the extent to which the local campaign is vigorous and people get involved. That would suggest that the kind of specific environment around voting determines its outcome. Q151 Lord Crickhowell: I am trying to work out exactly where you think the process should begin. We have heard about the right to be involved and the general setting of roles. Lord Hart raised the point that clearly it ought to begin before the end, and at any rate the end should not proceed unless you have involved the public. Does the right to be involved mean that you seek the views of the public to initiate the move to constitutional change? Is not the reality that it will not be initiated until a government think that it is important for political or other reasons? As the Deputy Prime Minister often argues, we have all been considering it for centuries, or at least a very long time, and therefore we ought to get on with it. I am not clear whether you think that we should go down the road of constitutional change only if demand arises for it because people have been involved—and if it does not, it should be left alone. The whole process seems to get under way only once the executive have decided that they wish to move. Then it is probably quite important to consult about the detail and avoid the nonsense where we vote on a form of electoral reform that nobody wants. Can you elaborate on where you want the public to be involved? Is it to initiate change or merely to try to make sure that, once the government have decided they are going to go for change, it is less bad change than it otherwise might be? Professor Graham Smith: I do not see us evolving into a polity any time soon where we have an initiative system, which is what you have in places such as Switzerland and California and where you therefore have, in principle, agenda-setting from the public. I would suggest that those initiatives tend to be dominated by partisan interests because they can mobilise people, but that is another debate. Having given evidence to the Constitution Committee about referendums once before, I do not think that that sort of change is on the cards. What you said is interesting. Constitutional change tends to happen when members of the political elite think that there is something wrong with the current system. A lot of constitutional reform will continue to come from that direction, but not necessarily. Take the electoral system as an example. If there is recognition that there is a problem with our electoral system, that still leaves open the question as to what the electoral system should be and whether it should be changed. We might still have the least worst electoral system.

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There is a difference between saying that something needs to be changed, as in we think there is a problem with the electoral system, and then saying what the electoral system should be to replace it. There is a big gap in there for agenda setting, which I think you are suggesting. Certain things come out of the popular mood. I suggest, for example, that there was a mood for a referendum on devolution within Scotland et cetera that was reflected through the parties. It is not all top-down; some of it is bottom-up. It is not as simple as just saying that there are politicians and there are people and that they have independent views. They reflect each other. Sorry, that is a complicated answer—but the recognition amongst political leaders and parliamentarians that something needs to be dealt with in the constitution does not necessarily mean that you cannot get the public involved in what that change should be, including educating the public and involving them in decisions as to future direction. Professor Stephen Coleman: I think there is a principle here, which is that the initiation of legislation should come from the executive. There may be exceptions at a very local level of governance whereby some other form of initiative can be considered, but I do not think that that is what we are considering here. The sensitivity required for that process of initiation is the kind that Professor Smith has just described—the importance of political parties, recognition of what the public might or might not be thinking, and so on—but in the end, it has to come from the executive. It seems that the discussion around public engagement is not about the right to initiate constitutional legislation; it is about the right for that legislation to be fully accountable to those who are affected by it.

Q152 Lord Crickhowell: That is a very useful answer, if I might say so. Politics leads a party or parties to initiate the whole process, and this is where you bring in the kind of issues and methods that you are discussing. Professor Graham Smith: For example—and we have already mentioned this—I think that the problem with the AV process was that there was no process by which we decided which electoral system should potentially replace first past the post. It was a decision on “AV or not AV”. That was the problem. There was no process of weighing the pros and cons of different electoral systems. It was a political deal. Q153 Lord Crickhowell: Worse than that—and you may often have this situation—you have a Government formed of two parties, one of which believes that this change is absolutely essential and the other that believes it is a great mistake, has to go along with some sort of process, but does not want the change at all. Professor Graham Smith: I do not know why I would have been in the negotiations, but if I had been, one thing that would have been interesting to say would have been, “We agree that there should be a citizens’ assembly to look at the issue”. Rather than the parties saying, “You want PR; we want to keep it as it is; let’s go for AV”, why was it not suggested, “We

121 Professor Graham Smith and Professor Stephen Coleman will have a citizens’ assembly, such as that held in British Columbia, that would bring forward a suggestion”? Professor Stephen Coleman: It does seem to me that there are some elements of disentanglement that we simply cannot address here or do anything about—the combination of political factors, of contingent political factors, and normative constitutional factors. In an ideal world, citizens would be high-minded and would address constitutional factors. For all the future reality that we can envisage, political entanglements are going to obscure some of these decisions. The Chairman: I have got Lord Norton, Lord Pannick, Lord Renton and Lord Rennard in that order. I hope that makes the conversation consistent. Q154 Lord Norton of Louth: Professor Coleman, you have touched on where you want the public involved, and I want to look at something you alluded to, which is how you want the public involved. The government initiate, but how are the public then involved? Is there a role for new technology? In the past, Professor Coleman, you have drawn attention to Parliament being ahead of the game relative to others in things such as online consultation, but I think that both of you take the view that new technology has not achieved what its perhaps optimistic proponents wanted. Is there a role there? Can it make a significant change, perhaps in the context that you were touching on in pre-legislative scrutiny? Professor Stephen Coleman: The internet is the most promising space for this kind of deliberative discussion. It is not the only one, and I am very worried about it being seen as an either/or thing. You are quite right in saying that almost everybody in the world, apart from Members of this Parliament, realise that the British Parliament is ahead of the rest of the world in its initiation of online consultation. However, how do we make it effective? There are a number of valuable principles to think about. The first is building in designs for deliberation. We are now 10 years on from those early experiments in the British Parliament, and we know a lot more about how to deliberate and how long these sorts of things should last. There are a number of practical lessons that need to be taken into account, such as what sort of moderation and how many people there should be. Are people coming in anonymously or are they giving their names? Should there be a certain number of times that people can come into the discussion? As was suggested, these are fairly mundane practical issues, but they are very important in getting deliberation right. The second, as Professor Smith recognised, is the importance of providing balanced information that everybody can trust—basic first-order information that is trustworthy enough to set the debate on a foundation. The third is the importance of multidimensional talk—the kind of talk that people engage in when they think they are talking about politics, but also when they are talking about their neighbourhoods or their families, often on social networking sites. It is a question of bringing some of those existing conversations into the deliberative process, of reaching out and finding ways of doing it. The next principle is about creating what is known as argument mapping and visualisation. It is impossible to have tens or hundreds of thousands of people having a mass conversation about an important issue and expect everybody to read everything. One of the things that is needed—fortunately there has been some very interesting and important information science work on this over the past 10 years—are ways of structuring conversations so that they look rather like a weather map and you can say, “Hang on, this is what 16 to 25 year- olds seem to be thinking at the moment in the conversation. This is what the women are

122 Professor Graham Smith and Professor Stephen Coleman thinking as opposed to the men”. One can start to visualise the picture in a really quite exciting way. All those things are far ahead of anything that the public opinion industry has developed or been interested in. It is interested in rather crude numbers. It is far ahead of what most deliberation has done, even at a parliamentary or government level, because the resources have not been put into it, but with imagination one could make all this work very creatively, and I think that that is the space in which it should be happening. Q155 The Chairman: That problem comes back to the one which I am sure Lord Norton wants to follow up with you—who owns this process? Professor Stephen Coleman: I think that Parliament should own this process. I do not think that this should be a government-initiated project. Governments are party entities; Parliament has more trust. It has the institutional role to encourage the kind of deliberation that goes on within it, perhaps in a rather weaker form, beyond it. I have always believed that one of the great institutional roles for the British Parliament is to be an encourager of public deliberation beyond its walls. Professor Graham Smith: I just want to say—certainly this is not what Professor Coleman is saying—that I do not think that the internet and online engagement is a panacea; I do not think that it somehow gets us out of the problems that we have in ensuring that we have a representative group of people and that it is not dominated by partisan interests, et cetera. This can be quite difficult, particularly when you are talking about anonymity. Just as there are offline design issues, there are online design issues, which Professor Coleman has suggested. On a personal level, from the bits of work I have done on this, I think there is very often a difference between online and face-to-face deliberation. One of the differences is the way in which, online, it is quite easy to escape informing yourself. If you have a deliberative event face to face, you have to walk out of the room or you can go to sleep. You are getting the same information as everybody else—you know you are; everyone is sitting there. Online, that is a design question, which is difficult to deal with but not impossible. Q156 Lord Norton of Louth: Do you distinguish between the quantitative and the qualitative—whether it is just assessing the weight of opinion as opposed to having some input by people who have useful opinions that can actually inform parliamentary debates? I am wondering whether that might be the value of it, particularly in the context of pre- legislative scrutiny. Professor Stephen Coleman: We ran a consultation for the Public Administration Select Committee when I worked for the Hansard Society in which we had an expert group and a public group. It seems to me that one of the things that we should get away from when we talk about public deliberation is a notion of an amorphous public that is everyone, because there will always be some people in the public who have no interest whatsoever. There will always be some people in the public who are actually very expert indeed but who nobody has noticed, and there will be lots of others who will shift their positions as time goes on. Creating different places within the online sphere for different people to do different things makes great sense to me. Q157 Lord Norton of Louth: One final point. You were saying, Professor Coleman, that you saw a role particularly for Parliament in engaging in this consultation, but presumably the government could do it as well—they consult, but there is a more open process with Parliament and pre-legislative scrutiny.

123 Professor Graham Smith and Professor Stephen Coleman

Professor Stephen Coleman: The government can do it also, but I do not think that they can do it as well. The great problem about anything that governments have done—I speak about this Government and the previous Government—is that they do not have the full trust of people. Furthermore, there is so much hostility towards them that a great deal of the resource put into them has to be spent on security and stopping people from attacking them. The Chairman: I know, Lord Renton, that you wanted to ask about the new technology. Q158 Lord Renton of Mount Harry: I think that it has largely been covered, but perhaps I may add one point. You talk briefly about the importance of the internet. Do you see it following on that, at the end of the day, people will be able to vote via the internet, and would this help to increase the number of people who take part and vote? Do you see great difficulties in that, or do you think that it is likely to happen? Professor Stephen Coleman: I should declare an interest because I chaired the independent commission that was set up by the Electoral Reform Society to look into this. My view, and that of the commission, is that it would not affect turnout. Q159 Lord Renton of Mount Harry: It would affect it? Professor Stephen Coleman: It would not. I do not think there is any evidence that lower turnout is a result of the inconvenience of having to walk to a polling station; I think the evidence is that people do not vote for a range of other, much more important reasons. So although I think that within the next couple of decades we, and most democracies, will move towards an online voting system—or at least towards that being an option in elections—I certainly do not believe that that in itself will make any difference. Lord Renton of Mount Harry: I wholly disagree with you about the inconvenience of walking to a polling station not being something that keeps a lot of people away. I took part in six or seven general elections. My first one was in Sheffield and I was against a very large Labour majority—I was not going to win. I was very surprised to find that a lot people were bringing bottles of beer into the tent, or wherever we were, and I said to my agent, “Why is that?”. She said, “Very likely they’ll whizz the beer up at you on the platform”. I was horrified. She said, “No, no no—that helps. It makes it much more interesting”. And I think that that is true. I take a different view from you on that. Professor Graham Smith: If I remember rightly, the Labour Government tried a whole series of experiments, like voting in supermarkets and various things such as using text votes, but none of them had any effect whatsoever. Q160 Lord Renton of Mount Harry: But the internet would be so easy, would it not? Professor Graham Smith: I tend to agree with Professor Coleman that there are other reasons why people are not voting. Ease may be a small factor but it is not the major factor. Disinterest and disengagement is the major factor. Q161 Lord Pannick: Professor Smith mentioned the question of education. I wonder to what extent each of you thinks that questions of public engagement—how prevalent it is, what we should do about it—are connected to the degree of public understanding that there is about political issues in this country. I am interested in whether there is any way of measuring whether public understanding is increasing or has decreased over the years, and I am interested in whether you think that government in this area has a responsibility to do more to educate people—obviously, the schools—about the political system.

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Professor Stephen Coleman: My answer is yes and yes. There is an intimate relationship between levels of education and participation, and government should do more. That is why I believe that the introduction of the citizenship curriculum was a very valuable addition to our schools. One of the most important levelling points for any kind of knowledge gain is going to be in school. Once people have left school they are much more vulnerable to all the other socioeconomic factors that determine their chances of acquiring knowledge. It is a very important age group to be addressing, particularly in terms of fundamental constitutional principles, although not necessarily in terms of the precise detail of legislation. It is certainly important in terms of the principles of fairness around the foundations of government. Professor Graham Smith: One of the key elements of the deliberative technique that we have been mentioning is always a process of education of the people involved in those events and those forums. Most opinion polls are off the top of people’s heads in terms of whether they know something—a particular detail or particular fact or whether they have a particular perspective or particular preference. The point about deliberative events is making sure that people have the basic knowledge before they make a reasoned decision. One of our problems, particularly with referendums, is raising that level of knowledge. It is interesting that, with referendums, people often use trusted information sources as a proxy. One of the problems with this referendum is that they are not really sure where those trusted information sources are. Q162 Lord Rennard: There were a number of attempts at public engagement on constitutional reform issues over very many years. For example, the Jenkins Commission tried to engage with the public. The previous Government in their 13 years had various engagement ideas. There was the review of electoral system. I wonder whether you might comment on what you think of the engagement policies of the previous Government and whether they were, to be honest, of any value. Also, I would like to ask rather more about citizens’ assemblies, about how you think they might be conducted, what the proper roles for them might be and whether or not they might be particularly appropriate for issues of constitutional reform. I have seen citizens’ assemblies effectively set up as deliberative opinion polls to try to work out what might work at elections. They have been very good at focusing on what eventually happened, as opposed to snapshots. I wonder whether they are particularly appropriate for constitutional reform issues. Professor Smith began by saying that constitutional reform issues were about changing the role of rulers and the ruled. I wonder whether citizens’ assemblies might be a way in which the ruled set the rules themselves and avoid the problem we have with changing anything in the constitution, where the rulers have a vested interest, set the rules for themselves and decide how any of the changes to those rules might be made. Are citizens’ assemblies particularly valid for constitutional reform? Exactly how could they be structured, and covering what sorts of subjects? Professor Graham Smith: Small question! One of the problems with the previous initiatives you alluded to is that the public consultation processes were poorly constructed. It was more a case of a call for evidence rather than trying to bring a group of citizens into the process, or wider public communication and education engagement. In the same way, you find engagement opportunities around many policy issues, but they just are not very attractive for people to engage with. I am not suggesting that citizens’ assemblies are a panacea for every issue with the constitution, but it is a particularly interesting model. It works very well when you are trying to change something like an electoral system, when there are really clear choices about what

125 Professor Graham Smith and Professor Stephen Coleman you are going to do. I could see problems with a question like, “What should a Bill of Rights look like?”, because there are so many different aspects to a Bill of Rights. It works very well with specific questions such as, “Are we going to change the electoral system?”. It is harder when it is a more general issue. Saying that, I can imagine a citizens’ assembly looking at different aspects of a Bill of Rights, particularly those areas in which there are big disagreements, and being able to inform the process. For example, the big challenge is always economic and social rights and a period of leaning and discussion would demonstrate how people’s opinions have changed after learning about the implications of those rights. I can see an important role for that kind of body. This is exactly about what you are saying: drawing citizens from their ordinary lives and giving them that almost legislative opportunity to be educated, to learn about the issue and to be able to say in an informed way what the relationship between the rulers and the ruled should be. Although I doubt there would be the political will for it, you could imagine a situation in which the decision of an assembly was the final decision. That is not what they decided in British Columbia; the government decided that they needed a binding referendum. But you could imagine a situation in which that was the case. The citizens would then be the rulers— the legislators—at that point. I do not think that anyone is going to suggest moving that far. Q163 Lord Rennard: I think probably not. Will you say more about how they might be conducted? For example, I have seen deliberative polls conducted by people such as Frank Luntz in the states in which they say, “Right, we want to get 400 people representative of the United States”. They will pay their travel and put them up in a very nice hotel from Friday to Sunday, and subject them over three days to some impartial advice from academic experts and the antagonists on different sides of an argument. Over the course of a Friday to a Sunday, they will engage a representative group of people in well thought-out presentations in which they consider the issue. Of course, they ask them their views on the Friday and on the Sunday. On the Sunday—when they have done this in presidential elections—they have invariably come out with the winners in the elections in almost exactly the right proportions. I wonder whether that might be the sort of way in which you could address some of these sorts of issues that might be pertinent to citizens’ assemblies, and then have a clearer recommendation, and reasons, to put to people in a referendum or just to Parliament. Professor Graham Smith: I agree. What you have described is the deliberative poll that Professor Coleman was mentioning earlier. I worry about the two or three days when you are talking about a constitutional issue. Particularly when you are talking about a new electoral system, there is a lot for people to learn to really get into the detail of that. On constitutional issues, not on other issues, you probably need more time than those two or three days. I also like what they did in British Columbia, because they crafted a decision. They did not just engage in private voting. They voted on particular options, but they were moving towards a decision rather than people’s preferences across a whole series of different issues. The point about a deliberative opinion poll is that you ask people about a whole series of things—20, 30, 40 questions—whereas, with constitutional issues, it will be a specific issue. People should spend more time on it; they should be crafting those decisions more carefully. So although I have great respect for Fishkin’s model, I think that two or three days for constitutional issues are not enough. Professor Stephen Coleman: My worry goes just a little bit further, which is that these things tend to be one-off experiments. That worries me. We need to try as far as we can to establish some kind of process and space that becomes trusted over time for these sorts of 126 Professor Graham Smith and Professor Stephen Coleman things to happen. We have been designing experimental sites for deliberation for a long time. One of the things that we have not built into the evaluation of them is that few things are going to work very well when you do them the first time, particularly if, every time you do them, it the first time for another thing. One of the things that I would like to offer as a recommendation is that, whatever one wants to do about public engagement, give it some time, let it develop and recognise that there has to be a learning process, just as there does with any kind of deliberative process—even with this institution, when it first started. Q164 Lord Hart of Chilton: So is House of Lords reform a candidate for such an operation? Professor Stephen Coleman: I do not see why not. Q165 The Chairman: Could you propose a particular method, one of the ones you have talked about, where House of Lords reform could be appropriately discussed? Professor Stephen Coleman: I think that whatever happens should have an online as well as an offline component. It should go on over a period of weeks rather than days and should be at least semi-institutionalised in the sense that if it is done one way in one constitutional reform, it will be repeated over two or three other constitutional reforms to see what the pattern of behaviour within it is. A combination of what have been the two main areas of our discussion today—the British Columbia model of the citizens’ assembly and the deliberative online model—is probably the best candidate for this. Professor Graham Smith: If politicians and decision makers knew that they were going to have to go through a process where constitutional reform would be put forward to an assembly and to public deliberation online, it would change the way they thought and stop them rushing into decisions because of the implications of that process. I am not thinking of the conservative point. I am thinking that we would have more informed policy. The Chairman: I have Lord Rodgers, Lord Powell, Lord Shaw and Lord Pannick all wanting to make points, and I recognise that we are running a little short of time. Lord Rodgers. Q166 Lord Rodgers of Quarry Bank: Reform of the House of Lords has been the subject of debate for the past 14 years, at least since 1997, but when it comes to manifestos, it has a very low level of priority. You can reach one of two conclusions—that the public are bored, and will remain bored, and it should not be treated as a priority; or alternatively, that the process pointing in that direction has been inadequate. Could you tell me which of those it is? If the process has been inadequate—after all, a new draft bill is coming forward—what would your advice be? What should be done now to ensure the degree of public engagement to complete the final decision if there were such a final decision on the matter? Professor Graham Smith: I think House of Lords reform is a perfect example of something you could run a citizens’ assembly on. It is like electoral systems. Most people are not that interested in electoral systems—it is a shock to us all, but it is true—but they are interested when they learn about them and they know that they will have an effect on the final decision. It is a point that we have already made: people are politically active in relation to the institutions that surround them. If you create an opportunity, such as a citizens’ assembly, to look at something like House of Lords reform, you take away the problem we have at the moment which is of different political parties trying to get the House of Lords reform that would suit them or their supporters. You would get much more interesting proposals

127 Professor Graham Smith and Professor Stephen Coleman coming out of something like an assembly and, potentially, an online deliberative exercise that ran alongside that. Q167 Lord Shaw of Northstead: So the question is: should we pack up or should we try to find through public engagement a higher level of involvement? Professor Graham Smith: It is interesting. When you talk about a higher level of involvement, it can be difficult; you could be talking about mass participation and everyone knowing about the issue or, with an assembly, taking a group of citizens out of the populace and giving them a particularly privileged position. On something like House of Lords reform or electoral reform, particularly in the agenda-setting phase regarding what should be taken forward, you are generally going to have to focus on the second option, focusing on groups of people who are well informed, rather than thinking that you can get the mass public all up to the same level of understanding. The latter is not really relevant here. Q168 Lord Powell of Bayswater: I wanted to come back to your answers to Lord Rennard. Your enthusiasm for preselected audiences puts an awful lot of power in the hands of the selectors. As academics you are of course entirely pure and scientific, but this would probably fall into the hands of less scrupulous people. It takes you dangerously close to the techniques of non-democratic societies. Professor Stephen Coleman: I do not think that random selection is quite the same thing as preselection by an authority. Lord Powell of Bayswater: It is quite close. Professor Stephen Coleman: Only in the sense that random selection is exactly what it says. One cannot actually determine who people are going to be, except something like a picture of the public. In a sense, it is a microcosm—a shrinkage of the public. It is an attempt to imagine the public being in one room. It is a group of people acting as if they were the public, if the public had access to the kind of information that this group of people has. In terms of their particular characteristics—their political persuasion, for example—the selection would have no say whatsoever in determining that particular shape. I do not see that as being a problem. I also do not see random selection as the only way of involving people, which is why the online element is very important. To come back to the current referendum, and the campaign is concluding as we speak, there has been an enormous amount of online discussion. One might argue that the sophistication of discussion online has been far better than that in the mass media, because the discussion online—in some quite unlikely places, actually—has very often surrounded matters of quite sophisticated principle. I would not want to rule that discussion out of the process that those people want to be part of. Professor Graham Smith: I remind everyone that random selection was the democratic principle. That was how Athenians made their decisions. In this idea of democracy that we still hold on to, the primary selection mechanism was a form of random selection. It is easy to have independent oversight of that process and ensure that you do not have— Lord Powell of Bayswater: Also, if you remember some of the limitations of Athenian democracy— Professor Graham Smith: There were some limitations, yes. And we have some limitations of our own. The Chairman: It is the basis of the jury system. Professor Graham Smith: Yes. 128 Professor Graham Smith and Professor Stephen Coleman

Q169 Lord Shaw of Northstead: Having listened to all the discussions, and realising that it is important that we continue always to have them, it seems to me that at the end of the day the best policy at the moment is to leave things as they are. Would you agree? Professor Graham Smith: I would like to go through a process of public engagement to see whether that was the case. The Chairman: Is this a point in general, Lord Shaw, or are we are slipping into talking about House of Lords reform, which we were just talking about? Lord Shaw of Northstead: I was speaking in general terms. Q170 Lord Pannick: I just wanted to pick you up on this question of random selection. I have no objection to random selection, but I am concerned by Professor Smith saying that even two or three days may not be enough. How can it be random when the only people who will attend the deliberative assembly are those who are sufficiently interested in politics to want to devote that amount of time to the exercise and those who have that amount of time? Most people have other preoccupations. They earn a living, they have families—how can it be random in those circumstances? Professor Graham Smith: I think you would be very surprised if you looked at the deliberative experiments about the extent to which the power of an invitation changes the dynamics of whether people engage. Something else to mention which we have not discussed is that people are generally paid an honorarium for engaging and making sure that they have childcare and so on. That sort of effort is put into it. You choose your random selection and then work out how you can enable that person to attend. The power of the ask—of actually inviting somebody—is quite strong. You are right in that people can turn down the invitation, and it is the case that most selections for deliberative polls and so on are, as I have said before, slightly more of the politically interested—but only just. It is not that significant. Q171 Lord Pannick: This is based on Canadian and American— Professor Graham Smith: And British, in terms of citizens’ juries. Lots of experiments with citizens’ juries were run under the Labour Administration, although some of them should not have been called that because they did not use the right techniques, and so on. I myself am quite surprised that you can generate a sample of people who want to engage in these intensive processes and who, in pretty much all characteristics, resemble the general population. But you do have to put a lot of effort into it; it is not cheap. Q172 The Chairman: This is a very important point. It is preferable to work, frankly, if you are being paid an honorarium and your childcare is taken care of. Lord Pannick: You may not be able to escape your work. The Chairman: No, you may have major legal responsibilities. But that point that you have just mentioned about the degree of resource is crucial, and not just financial and administrative resource but real, driving, political—with a small “p”—resource. Professor Graham Smith: There are two things there. One is to make sure that you have very good people employed to design these things. Very often the people who are being asked to do this are not that au fait with participation exercises. Secondly, there is the political will. There is no point in doing it if decision makers are not really that bothered about the result. The worst consultation and engagement exercises are those ones that are done in a half-hearted manner, because not only are they not really trying to affect and have an input on the decision, but you will cause a degree of disengagement in the citizens

129 Professor Graham Smith and Professor Stephen Coleman afterwards if they have actually given up their time. One of the worst things that I see is when you have a consultation exercise—there are so many examples of this—and cannot show any relationship between the consultation exercise and the final decision, even if it is only a mention of the consultation exercise. I think that people are doing it just because you are expected to do it, and that is generally a problem. Q173 The Chairman: Do you have any sense at all that there is a greater movement towards genuine exercises of this kind in the political establishment in this country? This is in a way a difficult question to ask you to make a judgment on. Professor Graham Smith: Right at this present moment? The Chairman: Yes. Professor Graham Smith: One of the problems—and I think that it was unintentional, as I do not have enough evidence to suggest otherwise—is that because the Conservative- Liberal Democrat Administration have tended to focus cuts on the communication budgets of departments. They are not doing that much engagement, because those were the budgets that were being used for such activites. In that sense, de facto, with the cuts in departments and local authorities, that is one of the first things that is going to give. Do I think that that represents a lack of political will to engage? I am not sure that that is the case; I think that it is an unintended consequence of the cuts, because it is an easy thing to cut. So the jury is out on that one. Q174 The Chairman: Because politically—or superficially—it should go with the grain of all the rhetoric about the big society and citizens’ engagement, et cetera. Professor Coleman, do you have a view on that? Professor Stephen Coleman: Both of the parties in government spoke in terms of very great changes that they intended to bring about in the creation of policy. In the case of the Conservative Party, those were largely based around a concept called the wisdom of the crowd: the idea that one would be crowd-sourcing by going out to groups of people to find out what they think. Indeed, at the time of the first Budget in this Government, there was something called the spending challenge which invited people to submit ideas for Budget proposals. The problem is that none of the major Budget proposals that were actually introduced were ever submitted to the spending challenge, while all of those that were submitted to the spending challenge did not end up being introduced. At the same time, the junior partner of the coalition, as it were, spoke in terms of the biggest change in democracy in Britain since 1832—an outlandish and ambitious proposal. For the reasons that Professor Smith has given, these things have not quite happened, particularly in local government. At local government level a few years ago, everybody was working very hard to try to increase legitimacy by getting the public involved. Those tend to be the first budgets to be cut, for understandable reasons. Again, there is a strong push from the European Commission for legislation and policy-making at every level to go through consultation processes. Professor Smith is right again on a key point, which is that whenever consultation or public engagement is introduced as an add-on—something which one calls in a consultancy company to organise at the last minute, usually in the cheapest possible way—it does not end up being done properly. Going back to the kind of recommendations that I think you were seeking from us in terms of constitutional reform, if there is to be any kind of commitment to public engagement at all it has to be brought in at the very beginning of the

130 Professor Graham Smith and Professor Stephen Coleman process, not as something that is either, at best, an add-on or, at worst, a gimmick towards the end of it. Q175 Lord Shaw of Northstead: Yes, but arising out of that, if you had this consultation to set up that system, the report would go back to Parliament and Parliament would still retain the final power. Would that be it and therefore what really is the purpose of it all? Professor Stephen Coleman: Of Parliament or of the consultation? They both have the same purpose; they are both expressions of a certain kind of sovereignty. It is absolutely right that Parliament should have the final word on issues of legislation. It is important, however, that Parliament is advised not only by the expertise but the experience of the broadest range of people who are going to be affected by the policies upon which it is deliberating. This is, in a sense, a dual process of deliberation in which high-level deliberation over a long period takes place in Parliament—through, for example, pre- legislative and post-legislative scrutiny of policies—but also in which the representative and accountability functions of Parliament are carried out in a more sophisticated and sensitive way, by hearing directly the thoughtful voices of citizens. The Chairman: That is a very good summary, if I may say so. Professor Coleman, thank you. Does any member of the committee have a further point they would wish to make? That has been enormously helpful and, indeed, practical, which has been our aim for this morning, so thank you both very much indeed for coming. If you have further thoughts, please do not hesitate to provide us with them because we are only now in the process of finishing our oral evidence on this and we will then take some time to put together our report. Thank you both very much indeed.

131 Rt Hon Nick Clegg MP

Rt Hon Nick Clegg MP Oral evidence, 18 May 2011, QQ 176-239

Evidence Session No. 6 Heard in Public

Members present

Baroness Jay of Paddington (Chairman) Lord Crickhowell Lord Goldsmith Lord Hart of Chilton Lord Irvine of Lairg Lord Norton of Louth Lord Pannick Lord Powell of Bayswater Lord Rennard Lord Renton of Mount Harry Lord Rodgers of Quarry Bank Lord Shaw of Northstead ______

Examination of Witness

Rt Hon Nick Clegg MP, [Deputy Prime Minister].

Q176 The Chairman: Good morning, Deputy Prime Minister. I gather that you have a number of commitments and may not be able to stay quite as long as we would have hoped. You thought approximately an hour, was that your view? We might stretch that marginally, but we understand the timing problem. Nick Clegg: I should stress, I had been informed that you were seeking about an hour— The Chairman: I think we were seeking until about a quarter to twelve, but let us see how it goes. Nick Clegg: For that reason I planned on that basis.

Q177 The Chairman: I just say that to the Committee because I am sure it will prompt brisk exchanges. Thank you very much for coming, Deputy Prime Minister. You have kept the Committee very busy since we last met, in October 2010, scrutinising the constitutional bills that have come before us. Of course we are meeting now the day after we have seen the draft Bill on the House of Lords, and the White Paper attached to that. We will

132 Rt Hon Nick Clegg MP obviously be wanting to talk to you about that, although I am sure we will be coming back to that in subsequent sessions as we progress the process on that. Our current inquiry, which partly arises—but I must emphasise not exclusively—from the bills that have come up to us in the last year, is about the process of constitutional change. We have deliberately decided to call it constitutional change rather than reform, because we feel that begs fewer questions, particularly the political ones. Nick Clegg: Right. The Chairman: We are talking about constitutional change. Nick Clegg: Very elegant. The Chairman: We are hoping to make some positive recommendations about how, in future, everyone might proceed in a slightly different way. We are coming to the end of this inquiry, and therefore it is particularly valuable that we can have your reflections on where we have got to this morning. Thank you very much for that. Members of the Committee may, if there is time, want to raise specific individual points about some of the bills we have already looked at, particularly the Fixed-term Parliaments Bill, which, as you know, has not yet finished its procedure through our House yet. We finished the report stage this week but we have not come to the third reading. If I could move straight into the question of process, when you look back—and of course it is with the benefit of rose-coloured hindsight—at the constitutional bills that have been brought forward and considered from the coalition Government and brought to us and other committees and to both Houses this year, do you think in any way that the process of producing and introducing those bills could be improved or could have been improved? Do you have any proposals yourself for doing things differently? Nick Clegg: At the outset it should be stated that we were always aware in Government that there was a first phase of initiatives that we wanted to undertake, clipping along at quite a rapid pace: allowing people to have their say in a referendum on the electoral system for the House of Commons, as they did, to resounding effect; to start the process of seeking to redraw boundaries in time for implementation by the next general election; and, as you yourself have referred to, the Fixed-term Parliaments Bill. Those were three components that we judged, almost inescapably, needed to be proceeded with quickly. Just to quickly rehearse why, it was because we felt, given that the legacy of the expenses scandals and the commitments made by all parties at the general election, that it was right to not have the prospect of a referendum hanging over people for a prolonged period of time, but to try to get on with that as quickly as possible. Clearly just from a pragmatic point of view you cannot do something as ambitious as redraw the boundaries to equalise their size unless you start relatively early, and a Fixed-term Parliaments Bill seemed to us to be an important early initiative, so that everybody knew exactly where they stood. What have I learnt from that? I have learnt that whilst I think those reasons why we moved fast still stand, there are clearly costs in doing that. The costs are that you have less pre-legislative scrutiny than is ideal or desirable. I totally acknowledge that, and the many measures that we now hope to bring forward in, without sounding too grandiloquent about it, a second wave of changes—on the third bill, on recall, on individual electoral registration, on House of Lords reform, on party funding and so on—are all issues that we would like to see subject to proper pre-legislative scrutiny. Also I totally accept that, while it is not always the case, there is probably a link between the time that one devotes to providing those proposals with proper scrutiny and the likelihood—not the probability—that you might get a

133 Rt Hon Nick Clegg MP greater degree of political consensus around them. It is clearly ideal, on constitutional issues, again, if you can proceed on a basis of consensus. History suggests that consensus is often rather elusive, and at the end of the day change, or reform, however we call it, ends up usually being a question of the executive of the day deciding that it wants to proceed and then proceeding. That does not mean that we should not make every single effort in order to seek greater consensus where we can.

Q178 The Chairman: You have mentioned changes to the interparliamentary process. What you have not mentioned is any outside consultation or, for example, having a different set of criteria about matters you might put to referenda, or the particular form of public engagement in some of these major issues. Nick Clegg: I think they vary enormously from issue to issue. Clearly on an issue like the electoral system for the House of Commons, especially where the parties disagree, it is obvious that that would require a referendum. We are proposing that there should be a commission on the West Lothian question. We are proposing that there should be a joint committee subjecting the latest proposals for changes to the House of Lords to proper scrutiny. I do not think there is one fixed rulebook, if you like, that applies across the piece. I think the principles of sufficient time, sufficient scrutiny and sufficient deliberation are the important ones, and then you use different tools and processes to apply those principles.

Q179 Lord Crickhowell: Deputy Prime Minister, when you and Mark Harper appeared before the Political and Constitutional Reform Select Committee of the other place, Mark Harper described the process of the Bill that you have just been talking about as “a little bit traumatic for the Parliamentary process”. I think you might describe the process that followed the Public Bodies Bill in similar terms. You said, when you were at that Committee, that “the plans we are now proceeding with are not, of course, being dealt with with the sort of rapidity the early measures were. We have listened to what you have said, and we are absolutely determined to make sure that proper pre-legislative scrutiny, proper parliamentary examination and scrutiny, is applied to the measures that we propose.” The trauma was caused not just by the rush but because you appear to have not taken any notice of the reports made over many years by committees of both Houses about proper process. Indeed, it was a surprise for us when the draft Cabinet Manual appeared with absolutely no guidance about the proper conduct of taking constitutional legislation through. There is a great lacuna in that guidance. There seemed to have been a lack of process as well as a great rush. Now a number of the witnesses who have come before us have suggested that a rulebook should be set up—a set of guidelines should apply when constitutional change is being considered, so that that kind of nonsense caused by rush and apparently by lack of awareness of the very sound advice given by committees over many years would be avoided in future. How would you respond to a suggestion that there should be a pretty clear set of rules for handling constitutional change? Nick Clegg: Forgive me, I was not quite clear. I cannot recollect myself what trauma was being referred to. Which Bill—? Lord Crickhowell: The trauma that Mark Harper was referring to was that first Bill, which you said was so important: the Bill dealing with the referendum— Nick Clegg: Oh, I see.

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Lord Crickhowell: He described it as traumatic and rushed, and later, commenting on the same thing, you said: “Yes, enormous rush, but we are all going to handle things differently in the future.” Nick Clegg: I need to check—maybe I am mis-remembering this—but I think what we were both referring to in political terms was clearly the kind of bumps and scrapes that the referendum campaign itself elicited, not least for the parties in the coalition. Do I think that a simple commitment to hold a referendum on a very simple yes or no choice—whether we stick with this electoral system or change to AV—was of such complexity and that there were so many other variants that it would have changed radically if we had spent a lot of further time deliberating on it? Bluntly, no. I think it was a very simple commitment by the coalition Government and the coalition agreement to hold a referendum on that basis. It was something that was reflected in other parties’ manifestos, and in a sense the more controversial side of that Bill in terms of parliamentary scrutiny, the boundaries aspect to it, was none the less subject to very considerable scrutiny, and indeed some very significant change and amendment during its passage through the two Houses. On process, I am always open to having rulebooks to hand that can improve how government works. I would want to understand better, in a sense, who adjudicates what goes into that rulebook, and who does not. I think there were a lot of subjective judgements in all of this. My experience in the last year is that there are very strong, robust, collective methods by which decisions are arrived at within government—obviously at Cabinet, and the Cabinet Manual you refer to actually explicitly refers to the constitutional issues being exactly the kind of thing that full Cabinet would tend to look at, but also Cabinet committees. I chair a Home Affairs Committee, which deals with political and constitutional reform amongst many other domestic issues as well. My experience is that the collective filters internally within government are working well, and there is some anecdotal evidence anyway that one of the perhaps beneficial side effects of coalition government is that, precisely because it is a coalition of different parties, there is a greater emphasis on collective, deliberate discussion and less on, dare I call it, sofa government. I think that has been widely recognised as something that has been restored over the last year, and that has been applied to constitutional issues as much as it has to other areas of public policy.

Q180 Lord Crickhowell: None the less, this Committee and other committees did find themselves in the position of having to strongly criticise process and to take the Public Bodies Bill, for example, you would have avoided a huge mess if you had actually listened or acted as those committees had recommended. Nick Clegg: Sure.

Q181 Lord Crickhowell: I will just repeat the question: do you not think it would be useful to have some fairly clear sets of rules laid down—agreed, yes, after proper consideration and consultation—so that governments in the future avoid the kind of problems that you and Parliament found yourselves in? Nick Clegg: I totally accept, as I said earlier—and certainly in the area that we are discussing today, political change and reform—that the early measures were taken more rapidly than the other measures that we are seeking to propose. We do want to learn from that experience, and one of those lessons is that we will now integrate into everything we

135 Rt Hon Nick Clegg MP do much greater time and space for proper scrutiny. I have never hidden that. I accept that. I hope you will see that change, for instance, in the announcements made yesterday and from now on in.

Q182 Lord Irvine of Lairg: Could you tell us how often the Home Affairs Cabinet Committee, which you chair, has met, typically how long its meetings are, and what is the balance of its membership between Lib Dem and Conservative? Nick Clegg: It meets often. The Ministerial Code, as you will know, prevents me from providing a running commentary on exactly what is discussed in those Committees. Lord Irvine of Lairg: I have not asked you that. Nick Clegg: The full composition is a stable composition. If you do not mind, I will perhaps get back to you with the full list of the members later today. I can do it later this morning.

Q183 Lord Irvine of Lairg: Thank you very much, but when was the last meeting? Nick Clegg: The last meeting was yesterday, and the day before yesterday, and we are having another meeting this afternoon. It is regular.

Q184 Lord Irvine of Lairg: Can you give us an impression of how frequent the meetings are? Nick Clegg: It slightly depends on the business of Government. Lord Irvine of Lairg: Of course. Nick Clegg: This week is unusual in that we are meeting twice in a week. At other times the rhythm might be once a week, or once every couple of weeks. I am the Chair and the Secretary of State for Justice is the Vice-Chair, and like all chairs and vice-chairs of all Cabinet Committees we determine what demands there are on the time of the Committee, and therefore determine when it should meet and for how long.

Q185 Lord Irvine of Lairg: Typically how long are the meetings? Nick Clegg: About an hour. Lord Irvine of Lairg: Thank you.

Q186 Lord Goldsmith: I want to take you back if I can, please, Deputy Prime Minister, to the question of what process is applied to constitutional reform. I am unclear from what you said what you propose for the future. Just to take an example, you will no doubt have seen and be aware of what Mr David Laws in his book said was the process by which five years came about. Shall I remind you of what he said in that passage? He says that Mr Andrew Stunell pointed out that “trust and confidence was very important to us, and that we wouldn't want to find the PM calling an election at a time that did not suit us. 'That works both ways!' said William Hague. We mentioned that our own policy”—that is to say, the Liberal Democrats’ policy—“was for four-year, fixed-term Parliaments. George Osborne made the point that five-year Parliaments were better, as they allowed Governments to get into implementing their plans … We made no objection to this, and 136 Rt Hon Nick Clegg MP

Britain was on its way to five-year, fixed-term Parliaments for the first time in its history." Is that an accurate account of how we got to five years from your original Liberal Democrat policy of four? Nick Clegg: I will not provide a commentary on a quote that I have not read myself, on a meeting in which I did not participate. The process by which we have proposed five years as a Government as a whole was a collective judgement. I accept it is a judgement; it is not a science. It is a judgement. You can make a very plausible case for four years and a very plausible case for five years. The collective judgement we arrived at for proposing five years in the Fixed-term Parliaments Bill had nothing to do with one book or another written by Mr Laws; it was a series of decisions taken not least through the collective decision making that I referred to earlier within Government, with which you are very familiar yourself, culminating in a decision by the Government collectively to propose five years in the Fixed-term Parliaments Bill. We have listened of course to the reservations about five years, and the argument for four, but maintain the view that five is best.

Q187 Lord Goldsmith: Forgive me, Deputy Prime Minister, I am not on the substance of whether four or five is right. That is not the point at all. The question is: would you agree that there is a concern about the process of these important constitutional changes, and therefore we want to look at what might be a better way of doing that in the future? Do you recognise the concern that this piece raises? Nick Clegg: On this particular instance, I think that we have played it exactly by the book. The government of the day takes a collective decision on a measure. It includes it in a draft bill. That draft bill is then subject to all the normal steps of scrutiny in this place and the House of Commons. In a sense, all the undergrowth and background about exactly who said what prior to those decisions is irrelevant to the government of the day, like all governments, taking a collective decision and then subjecting that to the proper legislative process.

Q188 Lord Goldsmith: Following on from that, first of all you see no justification in any concern about how the process has taken place to date? Nick Clegg: No, as I said earlier, I totally accept that those early measures—and they are very specific: the Bill on the boundaries and the AV referendum, and the Fixed-term Parliaments Bill—have been subject to less pre-legislative scrutiny than is ideal. That I completely accept. To suggest that they have not been subject to proper debate and scrutiny, as we have seen with all of the debates here and elsewhere on the Fixed-term Parliaments Bill, I think is pushing it a bit.

Q189 Lord Goldsmith: Some people at least would say that it is not just a question of the degree of time that is spent in Parliament on certain issues. It is the degree of time that is spent on the country, the degree of preparation of the country, the degree of consultation of the country. Nick Clegg: Can I just— Lord Goldsmith: Please do, Deputy Prime Minister. Nick Clegg: May I? On the Fixed-term Parliaments Bill I think I am right in saying that all parties committed in their manifestos to having fixed-term Parliaments at the last election. It 137 Rt Hon Nick Clegg MP was a subject of some considerable debate during the course of the last Parliament, and all parties made it clear that they thought there was now a case. I think that case was made over a prolonged period of time during the last Parliament. I accept, of course, that there is a continual debate about whether it is four years or five years, but I do not think that we have hidden anything as a Government to say, “Here is our case for five years, and others have made the case for four.”

Q190 Lord Goldsmith: I will resist the temptation to get into any of that, Mr Clegg, because we are on process. If there is a need for a different process for constitutional reform, would you see a case, for example, for a sort of ministerial certificate, an analogy being the ministerial certificate we have in the Human Rights Act, which causes a minister to say: “In this particular case I am satisfied that we have followed the process,” which applies to constitutional reform, and distinguishes it from general legislative business? Would you see a case for that? Nick Clegg: Dare I say it, we are in danger of putting the cart before the horse. We must first establish whether a wholly different process is required, to which that individual certificate would then apply. Whilst, as I say, I accept that for instance on pre-legislative scrutiny we have learnt lessons, I have not yet heard myself, but as I said earlier on the suggestion of a rulebook, I am very open to suggestions that there should be a wholly different and separate process of decision making applied to constitutional and political reform issues, not least because, as I said earlier, my experience is that as long as the collective decision-making machinery of government is functioning effectively, transparently and deliberately, that is a good guarantee of proper scrutiny and deliberate consideration. This issue of a certificate would depend on having a separate process, the case for which has not been entirely made.

Q191 Lord Goldsmith: One final question, if I may. I just want to be clear about this. Is it your view that there is no need, in the case of constitutional change, for any different process from the legislative process that applies to any other legislation that is brought forward by the executive? Nick Clegg: My own view, as I have sought to indicate, is that the key priority is to make sure that the processes we have of collective decision making within government, proper pre-legislative scrutiny, and then proper legislative scrutiny, are adhered to. I totally accept that in our first initiatives some of that was short-circuited. My own view is that we have that machinery and those processes. Getting that right, respecting, adhering to and implementing them is more important, and in my judgement would be more effective than creating wholly new processes, when in a sense the issue at hand is that the existing processes have not been as fully articulated as they should be in some respects. The Chairman: I have several members of the Committee all, I think, wanting to pursue slightly different points along this line.

Q192 Lord Pannick: The question I think is not whether there should be new processes, but whether it would be helpful to lay down some conventions as to the proper processes that should apply in relation to constitutional change, such as public consultation and pre-legislative scrutiny, so that if, for whatever reason, ministers were inclined not to follow those conventions in a particular context, they would have to say so. They would have to

138 Rt Hon Nick Clegg MP

Nick Clegg: I think we are moving in that direction anyway, and there is a separate question about form: does one gather that together in a rulebook or not? If you look at the transformation of the power of select committees over the last several years, if one looks at the content of the Cabinet Manual, which in many respects is a rulebook for how government should be conducted, if one looks at the very rapid and, I think, welcome development of more sophisticated forms of pre-legislative scrutiny and the greater emphasis placed by both Houses on it, if one looks at the changes that are being introduced in the House of Commons to give greater autonomy to backbenchers through the Backbench Business Committee, I think all of these things are, in a sense, if not yet codified, congealing in precisely that direction.

Q193 Lord Pannick: So you would welcome an attempt? Nick Clegg: It is happening, and I think that governments need to respond to it. I have sought to be as open as I can about the fact that I think, in some crucial respect, particularly in pre-legislative scrutiny, for perfectly good, explicable reasons that I stand by we have not entirely done that. If there is merit in, in a sense, setting down what I think is in any event happening on a convention basis then I would certainly not have any objection to that.

Q194 The Chairman: One point that Lord Pannick may want to come back on, but Lord Crickhowell raised much earlier, is that we were surprised by the lack of any kind of attention given to this in the draft Cabinet Manual. It is obviously a document where precisely what one could call for shorthand a rulebook could be contained. Is that something that, in a sense, could be used as an idea in this period where the Cabinet Manual is being revised? Nick Clegg: I will not pretend that I have a photographic memory of the Cabinet Manual. It is a dense document. My recollection of the Cabinet Manual, however, is that it does make reference to constitutional issues being the kind of thing that full Cabinet would seek to deliberate on. Again, and I defer to those of you who have sat in governments of various hues in the past, my experience over the last year is that there is a world of difference between processes, which you can write down on a piece of paper in a rulebook, and whether they are respected by politicians and governments. Frankly, that is what matters. You can have all the best processes in the world, but if people basically make decisions on sofas in 10 Downing Street, then they all come to naught. What we have sought to do, certainly over the last year, is to restore a greater sense of deliberate, collective decision making within government, and I think most objective observers accept that that has been a big and welcome shift. The Chairman: I think we all recognise that, but that was the point of Lord Goldsmith’s question about the analogy with the Human Rights certification, but we will move on.

Q195 Lord Rennard: Just on these issues of process and pre-legislative scrutiny, I think the Deputy Prime Minister has made plain that there should be rather more pre-legislative scrutiny than has generally been the case in the past, but very specifically and in response to Lord Goldsmith’s first point, I want to ask whether you think that in the fixed five-year term

139 Rt Hon Nick Clegg MP of Parliaments there will be more pre-legislative scrutiny than there would have been with Parliaments of variable duration? Nick Clegg: This was exactly the point that the Minister for Political and Constitutional Reform, Mark Harper, made at the Select Committee that was referred to earlier. If Parliament knows the duration of the Parliament, and particularly if it is fixed at a period of time that allows governments to do big and sometimes controversial things, it is of course much, much easier to plan pre-legislative scrutiny, and much easier to put the relationship between the legislature and the executive on a more coherent footing. By setting the goalposts, the parameters, in that way it should allow for much more effective pre-legislative scrutiny.

Q196 Lord Rennard: Can I just go a little wider? In the inquiry on the process of constitutional change, as we are calling it, we have not really looked at the case for or against a written constitution. We have previously looked at the Cabinet Manual or Cabinet Office Manual. Do you think that part of the case for a written constitution might be that that constitution would set out clearly within it the rules by which the constitution could be changed or amended? Nick Clegg: I certainly think that one could obviously make a very coherent and powerful case in favour of a written constitution, but if there is something else that I have learnt over the last year it is that change is not easy, and one should always learn to walk before one seeks to run. There is a wealth of changes and reforms that we are seeking to introduce now. If we were to move towards a written constitution on top of all the other things, which as we saw yesterday elicit a great deal of comment and objection and angst, then I think it would probably be more than the market could bear. The classic distinction between our unwritten constitution and written constitutions, and their strengths and weaknesses, remains. We have a suppleness, a fluidity and a pragmatism to our arrangements, which many constitutional experts around the world recognise is a strength. However, there are also strengths in having codification of rights, prerogatives, and powers in a manner that will allow British citizens to understand exactly where they stand, and what their rights and privileges are. That argument will continue. I do not anticipate any great initiative being undertaken on that front by this Government.

Q197 Lord Shaw of Northstead: Looking to the future, it is one thing having a Constitution Committee to check whether any bill is affecting the constitution, but it is quite another thing to have a committee whose main purpose is to receive, to discuss, to bring forward changes to the constitution itself. Do you envisage that in future such changes will be looked at more in the two Houses? Should it need a separate committee to initiate it?How do you feel that the future should go with these things? If we are not careful, if you get a committee, in my view, solely looking at changes and possible changes, it becomes a vested interest in seeking to change things. I think that is rather dangerous. Nick Clegg: I see. So far I am not entirely sure whether the issue of the creation of a vested interest is the creation of a vested interest in favour of breathless change. There are plenty of instances where, if one was to use that language, vested interests seek to inhibit and frustrate change, because that is what vested interests do. I think that that is as much the case in this area as it is in many other areas of public policy. Maybe I am misunderstanding you. I am not entirely persuaded that the greater specialism and expertise

140 Rt Hon Nick Clegg MP that committees have in particular areas willy-nilly leads them to become advocates of greater reform and change. I think experience suggests that sometimes it is the reverse.

Q198 Lord Shaw of Northstead: As I said, any committee like this one deals with specific orders and changes in the law and so on, and produces experts to discuss the rights and wrongs of the thing. But, as I understand it, we do not take subjects out of the blue that someone is rather keen on at the moment, and then discuss them and make proposals about them. In other words, the initiative has to come somewhere else. We are supervising and inspecting what comes forward. Nick Clegg: Yes. I think that is in the nature of the arrangements; more often than not the terms of the debate might be set by the proposals and initiatives taken by the government of the day. Although I entirely defer to members of the Committee, I do not think that it in any way inhibits this or any other committee from producing reports and issuing thoughts on a whole range of issues that might not be in the ambit of what the executive is working on, and of course there is always an ebb and flow to these things. At the moment, this Government is putting forward a fair number of constitutional and political changes, but if one looks back at the immediate two decades before the Cook-Maclennan Agreement, for instance, there was almost complete stasis and silence on the issue. In that context, a Committee like this in a sense had nothing to respond to. I think that is what will happen. The high level of activism now will certainly not prevail like that for good. I think that these things tend to come in waves.

Q199 Lord Irvine of Lairg: Is there a senior member of the Government with overall responsibility for the entire constitutional change programme? Nick Clegg: The Director-General of the Constitution Group, Rowena Collins-Rice, is the senior official who has overall responsibility.

Q200 Lord Irvine of Lairg: I was asking about ministers. Is there a senior minister with overall responsibility for the Government’s entire change programme? I was not asking you about officials. Nick Clegg: Constitutional change programme? Yes. I am. Lord Irvine of Lairg: Constitutional change. Nick Clegg: Yes. I am. Lord Irvine of Lairg: You are. Nick Clegg: Yes.

Q201 Lord Irvine of Lairg: Could I try to ask you just one other question: is constitutional change legislation in your view a higher order legislation, so that you could support it attracting special guidelines so that the responsible minister should have to justify any departure from them? Nick Clegg: Clearly, issues of constitutional change are of a different character from a lot of other public policy deliberations, because it is about very basic rules by which we are governed, by which we elect people to the House of Commons, and so on and so forth. Do

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I think that the different character of constitutional reform compared with other public policies requires a wholly different suite of processes? Again, I am not sure that that follows.

Q202 Lord Irvine of Lairg: Not wholly different, but special guidelines. Nick Clegg: As I said earlier, I think we kind of know. It is not rocket science. We kind of know what works best when dealing with any area of public policy that is controversial, fundamental, and an issue of considerable public concern. That is not an exhaustive list, but the building blocks of that are proper, deliberative, collective discussion, first within government, public engagement and consultation where appropriate and possible, proper pre-legislative scrutiny in this place, and proper legislative scrutiny of the bills that come forward. That is the chain. Those are the big links in the chain. I strongly believe that that is what we should get right. Where we have got that wrong and we understand the reasons, we should put our hands up and say we have not followed each and every one of those steps perfectly, which I do not think we have. We must now seek to do that. My own strong sense, as you can imagine, is that is what we should get right, rather than creating a new parallel set of processes.

Q203 The Chairman: We will obviously come on to House of Lords reform in a few minutes. I think it is interesting that you replied immediately to Lord Irvine that you were in charge of the constitutional process, and yet as I understand it you have decided to step back from the process of developing the House of Lords proposals. Nick Clegg: No. I gave a statement yesterday, and— The Chairman: Yes, yes, but I thought that was, as it were, the end of your involvement—obviously not the end of your involvement in some informal sense, but that you were not going to lead on the House of Lords process. Is that wrong? Nick Clegg: No. I would not have made the statement if I was not taking responsibility for it.

Q204 The Chairman: No, no. I am talking about taking the whole thing forward. Nick Clegg: Oh, I see, sorry. I think that there are media reports that I did the statement and chose not to talk to television and radio studios.

Q205 The Chairman: And that was all? That was all the stepping back was, was it? Nick Clegg: What I am very keen to emphasise is that, self-evidently, when you propose something as significant and important as reform or change to the House of Lords, two things happen. One is the big picture: do they make sense in the grand scheme of things? The other is the immediate politics of it, and the immediate politics are obviously intimately bound up with my role as leader of the Liberal Democrats, our role in the coalition, whether people like it or hate it or love it. I am very keen, in whatever way I can, to try to take some of the heat out of the immediate politics of this, so that we can in a deliberate fashion over the next year, through the Joint Committee, look at this as dispassionately and consensually and collectively as possible. I do not think that is a question of me somehow diminishing my interest in it, because I am very interested in it, and certainly not abdicating any responsibility and leadership for it. But what I do accept, as a political participant in a lot

142 Rt Hon Nick Clegg MP of noise that frankly is utterly irrelevant to the substance of the case, is that I have a role, as everybody does, to try to present it, as I tried to yesterday, in as balanced and reasonable a way as possible, and then allow a wider debate to take place, uncluttered by the day-to-day yah-boo politics of today. After all, these are changes that will last well beyond this generation of politicians. The Chairman: That is helpful. I think, Lord Irvine, you wanted to come back.

Q206 Lord Irvine of Lairg: Could I just ask you one question: are you in the lead now on House of Lords reform or is Lord Strathclyde? Nick Clegg: Clearly we work in partnership, because he is Leader for the Government in the House of Lords.

Q207 Lord Irvine of Lairg: But you are very familiar with the concept of the leading minister in any piece of legislation. Nick Clegg: I am the leading minister. Lord Irvine of Lairg: On House of Lords reform? Nick Clegg: Yes.

Q208 Lord Powell of Bayswater: I wanted to come back for a moment on process, which you have answered very fully and helpfully, and look at one other aspect of it. You will remember, not least from your extensive European experience, that many governments do have a higher hurdle for approval of constitutional change: supermajorities or whatever. Do you think there is any scope for that here? I know it is not in our tradition, but on the other hand you are proud of introducing novelty into our constitutional arrangements. Is there not perhaps a case for novelty in the approval procedures? Nick Clegg: I accept, because we have incorporated it into the Fixed-term Parliaments Bill, that we have suggested this two-thirds hurdle for a vote when Parliament wishes to dissolve itself and elicit a general election. That idea or concept, that for certain very crucial steps you set a certain threshold in the House of Commons, is already proposed. Do I think that should be across the piece? You are right that is a convention linked to political systems that have written constitutions. As I said, my own view is that, given how diverse the different issues are that we are dealing with under the general rubric of constitutional change—it ranges from the West Lothian question to House of Lords reform, party funding, recall—I think that self-evidently some of them are more axiomatic in the grand scheme of things than others. I certainly would not want us to lose the ability to be discretionary in how we treat these things.

Q209 Lord Powell of Bayswater: It would not have to be across the piste, would it? It could be limited to certain rather major constitutional changes. It might require, as Lord Goldsmith suggested, a certification procedure to say that a particular bill was a major measure and required a different procedure for approval. Nick Clegg: As I have said, at the risk of repeating myself, I think the key thing is to draw on the virtues of the processes that we have, which I think are strong and have become

143 Rt Hon Nick Clegg MP considerably stronger. We need to respect those, but also draw on the virtues of not having a written constitution, as per my answer to Lord Rennard earlier, which is that it provides us all with a pragmatic fluidity that has served us well.

Q210 Lord Hart of Chilton: One of the things that some other witnesses have mentioned when they have given evidence to us is on the question of consultation. That has not featured much in any of the answers you have given, but how do you see engagement with the public on issues such as constitutional reform? Not ultimately a referendum but before that—a proper consultation programme and an engagement with the public. Nick Clegg: I think the more one can do of it, the better. Clearly the maximal version of it is a referendum. No one can claim, for example, that people have not been consulted on the future of the electoral system, most recently for the House of Commons. Other areas, for instance, include when we create the Commission on the West Lothian question; I think it would be incumbent on that Commission to seek public views and to make sure its work is properly informed by the public. We have undertaken fairly extensive work, perhaps as much with experts and academics as anything else, on the precise design of our White Paper and Draft Bill on House of Lords reform. So again I think it is slightly horses for courses, but clearly at every step one should try to engage people to the fullest extent possible.

Q211 Lord Hart of Chilton: But you regard it as an essential ingredient? Nick Clegg: I think it is a desirable ingredient. Do I think it is easy sometimes to elicit a great deal of public interest and engagement in some of these issues, however much we sitting here might consider them to be important? I know as a constituency MP that is sometimes not quite as straightforward as one might imagine, because frankly there are many more pressing issues for people in their day-to-day lives than the West Lothian question or even reform of the House of Lords. So there is just that day-to-day reality, but where we can I think it is essential that we should. As a small anecdotal example, last Thursday or Friday I held a public meeting in my constituency as a constituency MP on the NHS reforms, and it was absolutely full to the rafters. It was called at fairly short notice and people absolutely flooded in. There was passionate public interest in it. Do I think it would be the same if I did one when I am in my constituency in the next few days on House of Lords reform? Well, let’s try it but I suspect I know what the answer might be.

Q212 Lord Hart of Chilton: I think we know the answer. Nick Clegg: I stress, as I said in the debate yesterday, that does not mean it is not important. It is massively important. It is just there is a huge difference between importance and resonance. The art of politics is to bridge those two.

Q213 Lord Renton of Mount Harry: It seems to me that any political party that is not getting the way it wants suggests there should be a referendum. What do you think about that? How would you assess the AV referendum in the aftermath of 5 May and what advantages or disadvantages do you see in there being more referenda?

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Nick Clegg: I think we should only have referenda with great care; we should use it very sparingly. I do not think we should seek to emulate Switzerland or other countries that have a quasi-constitutional habit of calling referenda much more frequently. We have a representative democracy and referenda should only be called on a fairly exceptional basis. Your Committee has produced an excellent report providing some thoughts on which areas and which questions should be subject to a referendum. Again, it is an observable fact that referenda often do flow from political disagreement or sometimes internal gridlock within parties, particularly within parties of government. In the case of the referendum on AV we had this rather unusual constellation of one party, which had a manifesto commitment to a referendum on AV, which happened to be the party that ended up in Opposition rather than in Government. Then there were two parties in Government who disagreed. So I think on those political grounds alone it was obvious that a referendum was an appropriate way forward. In any event I think changing something as significant as how you elect your local MP should be subject to a vote for the people. What lessons did I learn? Well look, it was not a wildly uplifting experience; I do not think the case was put in particularly uplifting terms by either side of the debate frankly. It became bogged down in party political point scoring in a way that I have absolutely no doubt was probably quite a turn-off to many people. With the benefit of hindsight, I suspect that helped those people arguing for no change, because, when you start to see politicians arguing like rats in a bag, I think most normal people think, “To hell with that. I do not want anything to do with this.” I do not think it was the most uplifting experience, but it was a referendum and the turnout was much higher than people expected, so many more people were engaged than was predicted.

Q214 Lord Renton of Mount Harry: Do you think 42% was much higher than expected? Nick Clegg: Some of the predictions at the beginning were less than half that. So maybe some of the argy-bargy did provoke a sufficient number of people to come out in large numbers, and that always has to be a good thing. However much I may have wished for a different outcome, the fact the outcome was decisive—in fact, overwhelming—and that it was taken on the back of a higher turnout means it is, certainly as far as this Government is concerned, a question that has now been put beyond any further debate. The Chairman: Lord Rodgers also wants to ask about public engagement. Then I am going to Lord Norton, who I hope is going to take us into the House of Lords and all of those proposals.

Q215 Lord Rodgers of Quarry Bank: In the course of our inquiry we have travelled to New Zealand and British Columbia in our minds because we were led to believe there were other forms of citizen or public engagement. We did not really find any easy firm way except the question of referenda, which we have been discussing already. Do you see as a formula, not for one particular piece of legislation but as part of the process, that you can see at some stage there would be wider discussion before Parliament has finally made its decision? I make that point because I think we all recognise that to an extent it is inevitably the case that all of these constitutional issues are minority interests. Are we satisfied or can we be satisfied to leave it like that—for Parliament to decide, and sometimes afterwards discover the full consequences? Is there a formula by which we might in future have citizen

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Nick Clegg: There is. We are trying one out at the moment. I must defer to officials; I do not exactly know what the latest is on where we have got to on rolling this out. But in the coalition agreement we committed to a public consultation stage, although I forget the terminology. The Protection of Freedoms Bill which rolls back previous incursions into our civil liberties and entrenches certain rights and freedoms, was subject to that on a pilot basis. Again, I am speaking rather hesitantly because I have not caught up with exactly how that has worked. I know a lot of it was online, and I have been told that it was pretty successful and again the amount of public engagement that took place on that exceeded people’s expectations. That is exactly the kind of thing we are looking at now on a pilot basis with a view to rolling that out to other significant legislation as well.

Q216 Lord Rodgers of Quarry Bank: Is there a way in which that could be used for reform of the House of Lords? Is it not an open possibility now to slip into the procedure and timetable to see much more widely what public opinion is, other than a poll? Nick Clegg: Well I certainly welcome greater public engagement in it. As long as we do not unduly delay the overall timetable that we are seeking to meet, I think we can find opportunities to elicit greater public engagement; that would be a very welcome thing indeed. That may be in the context of the work of the Joint Committee. It is not for the executive to say; it is for the Joint Committee to determine itself.

Q217 Lord Norton of Louth: Taking it from the point of view of process, one of the problems one could argue exists with process in government at the moment dealing with constitutional issues is that there does not seem to be a means of looking at the constitution in the round—joined-up thinking about one element of the constitution in relation to another, if you like. The accusation would be that the process allows you to deal with measures on a disparate and discrete basis. In other words there is no thinking across from one to the other. So, in the broad sense, there is a question there about process within government, and whether there is a mechanism for standing back and thinking about the constitution in the round. That then does lead me to the question of the House of Lords, because if you are not looking at it in the round, there are problems with how you focus on particular aspects. So I suppose two points about the Lords. First, on the one hand you have had a referendum on whether there should be some adjustment to the method by which you elect the members of the first Chamber, but there is no referendum on deciding the actual method of electing members of an elected second Chamber. The second point would be that it is narrow, in that you are looking at the House of Lords in terms of composition, as if you can isolate that from the rest of the political system, and saying, “What is the place of the Lords in the political process?” Should we not be starting from thinking about what we expect from the system, rather than just looking in isolation at the Lords? Therefore, the changes that you propose for the Lords potentially have rather significant consequences for the rest of the political system. It is very difficult to isolate it in terms of composition, because the moment we have an elected second Chamber, surely that does change or will lead to changes in the relationships between the two Chambers?

146 Rt Hon Nick Clegg MP

Nick Clegg: I will answer each of those in turn. Of course I accept that inevitably when any government proposes a specific measure you can ask where the context is. That is a perfectly legitimate question on anything, from education reforms to every area of public policy. I do not think that means that the individual initiative is not derived from a holistic approach. If you look at the broader scope of what we are seeking to do in many, many areas, there is a pretty consistent thread in what this coalition Government is doing in order to enhance direct accountability via the ballot box to the British people. That is the motivation that lies behind elected police commissioners, subject to a fraught debate in this House. It lies behind the idea of greater accountability through the possible creation of mayors in some of our biggest cities. It lies behind the whole localism agenda, and making sure that those people who are directly accountable to communities and families up and down the country have more power and say about what happens in their local communities. By the way those are three areas that are not, to be absolutely clear, Lib Dem policies. In fact the first two come directly from Conservative manifesto commitments, but they are big steps in policing local government—using the ballot box to improve public accountability. That principle is precisely the same applied to the House of Lords. Namely, that a decision- making body that has such considerable sway over the laws of the land should be more directly accountable to the millions of people who have to obey the laws. So I totally accept we might have very different views on it, but I do not entirely accept the characterisation as something that is disconnected from a wider impulse that is informing a lot of government policy. On a referendum, just as a matter of fact, we have of course already changed electoral systems for numerous bodies without referenda in the past: for the European Parliament, for the London Assembly, for the Northern Ireland Assembly and for the Scottish Parliament. It is not unprecedented to change how elections take place without a referendum. What distinguishes this is firstly that there was a very clear manifesto commitment from all three parties at the general election last year for considerable reform to the House of Lords, including direct elections. Secondly, and this is a slightly more intangible thing, this Government is not coming out with new-fangled ideas; these are ideas that have been knocking around for over a century. As we saw yesterday, they might elicit all sorts of objections that have clearly meant that only limited progress has been made in those 100 years. But the idea that there is a push to have greater accountability is not a new concept to the British people. The idea that the case has not been made and not been properly ventilated over 100 years is stretching it a bit. We have spoken about this before, but the only other thing I would say is that there are a large number of bicameral systems in democracies around the world that perfectly manage an asymmetry between one Chamber and the next, even though both might, in many cases, be wholly elected. Now, what seems to be the key there is not the fact of election but the manner of election: what system, what mandate, what areas are being represented and so on. You build in difference in the mandates enjoyed in the two Houses. That is very fully incorporated in our White Paper and Draft Bill. That is precisely why we have taken such meticulous care to say that they would not be representing constituencies, would be elected under a different system and would be elected for non-renewable terms.

Q218 Lord Norton of Louth: You are quite right that in bicameral systems where you have two elected Chambers they are not necessarily co-equal, and I do not think anybody would be arguing that an elected second Chamber here would be pressing to be a co-equal. The point is that it would demand more powers than currently exist, and I do not know 147 Rt Hon Nick Clegg MP how you would stop an elected second Chamber pressing for that. Your argument for the second Chamber is that it would therefore become accountable to the people. Well surely if it becomes accountable to the people, it is therefore in a position that will lead to changing the relationship with the other accountable Chamber. I do not see how you can maintain the existing framework when you have a second Chamber that will be making precisely the argument you have just advanced: that it is accountable to the people, and by being chosen by the people therefore has a different status to the present House, and therefore can make demands in a way that the present second Chamber cannot. The Chairman: Before you start Deputy Prime Minister, I know Lord Hart wants to ask what is effectively a supplementary to that. Q219 Lord Hart of Chilton: Yes, as I understand it, the principle rationale for this Bill and fundamental change to the constitution is democratic accountability. If I were an elector it would seem very odd to me that I get a chance to vote once for this elected body, but for 15 years there is no accountability to me at all. What chance do I have to rebuke or show my displeasure at his or her performance, elected on the basis of this accountability? It seems to be to be an illusion. Nick Clegg: I will take those in turn. Without sounding gratuitous about it, particularly to someone with you expertise in this matter, it is very important that we do at least agree that predictions that a reformed House of Lords with a greater composition of elected members would lead to demands for co-equal status are far-fetched. There is absolutely no evidence from bicameral systems around the world that that is the case. I think that is important because there are some fairly wild suppositions being made that I think are very far from the truth. Does that mean that, as things evolve, powers may evolve in future? Well clearly life does not stand still, and the powers and conventions have evolved in the absence of election, and I suspect they would continue to do so. The idea that there would be complete stasis in the relationship between the two Houses if there was no reform at all is equally wrong. So it is not just a case of stasis or not; it is a case of whether we should seek now to anticipate what will be organic, modest incremental changes, where the asymmetry in the relationship between the two Houses will be unambiguously obvious both to the people in the two Houses and to the British people. Do I think we should try to anticipate some of those shifts? No, I do not think we should seek to do that, in the same way that I would not suggest we try to anticipate any shifts that would happen in any event without election. This idea of a long, non-renewable term is not a government invention. I think pretty well every cross-party commission that has looked at it has come to the same conclusion. Lord Wakeham came to that conclusion back in 1999. I tried to stress this yesterday—I am not sure if I got the message across—but we are trying to proceed as much on the basis of conclusions, insight, and wisdom that have been accumulated by many cross-party committees and commissions in the past.

Q220 The Chairman: May I interrupt you, because I do remember this. I think there are other members of the Committee around the table. Nick Clegg: Indeed. The Chairman: The point was that the 15 years should be the maximum and that would then meet the equivalent maximum appointment of any appointed peers. Lord Hart’s point is that this now appears to be one term. Is that not right?

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Nick Clegg: That is the proposal.

Q221 Lord Hart of Chilton: It is not about a number of very distinguished people who have concluded something in the past. I would like to get to the rationale of looking at it from the point of view of the electorate. Nick Clegg: The rationale of looking at it from the point of view of the electorate is that the starting assumption is that what one wants in a Chamber that revises and scrutinises government business and legislation is greater accountability but also a certain detachment from the pressures and swings and roundabouts of day-to-day politics. They also want a certain freedom to speak and think independently of party discipline and party pressures, and to do so without a constant eye to the next prospect of re-election. The aspiration is to mix to get the right balance between greater accountability with the retention of greater independence of mind and autonomy of spirit. That is a slightly pompous way of putting it. Now, there is a very legitimate debate to be had now, which I hope will be had in the Joint Committee, about whether we have that balance right. Everybody who has looked at it has said that is the right balance to try to strike. Parenthetically it is one of the reasons why, in the Government, we came to the conclusion on both sides of the Government that for the purposes of a more elected House of Lords the single transferable vote makes sense, if you are seeking to choose a proportional system, precisely because it gives a more individual mandate to the person elected rather than a kind of party imprint. So that is the reason, but I would very much expect and welcome that all of these things will be subject to comment and perhaps proposed change in a Joint Committee process. The Chairman: Sorry, were you finished on your last point, Lord Norton?

Q222 Lord Norton of Louth: Perhaps we can go beyond the White Paper now, saying yes there may be changes over time, but would you not accept the view of the Political and Constitutional Reform Committee in the Commons in its report last week on the seminar it held on Lords reform? It said that the Government’s proposals would need to take into account that if you have an elected Chamber the existing conventions would not hold, because they are in fact based on the present composition of the Lords. Therefore the conventions would go. Would you not accept over time it would be very difficult to hold the line in terms of primacy based as it is on the Parliament Act, because the Parliament Act itself was enacted precisely for the purpose of imposing the primacy of an elected House over an unelected House? The rationale for it was because the second Chamber was not elected. If you elect the second Chamber, the rationale for the Parliament Act disappears. The Chairman: And the Salisbury Convention. Nick Clegg: I totally accept the historical reading of the genesis of these conventions and Acts. Of course, that is a matter of record and fact rather than opinion. I am not sure that therefore means it follows that, if one changes the composition of the House of Lords, there is an automatic knock-on effect on the status of those Acts and conventions. I have conceded, because I think that is stating the obvious, that just the nature of change and evolution, irrespective of whether one has more elected members, will no doubt lead to shifting arrangements. But here is the key thing: do I think it is either possible or desirable to try to capture any of that now at the beginning of what is a very long, drawn out, incremental process? No, I

149 Rt Hon Nick Clegg MP think if we sought to do it, it would be almost impossible to do so. Secondly: do I think there would be any doubt about the fundamental asymmetry between the two Houses, even if we were to implement our suggested reforms in full? I do not think there would be any doubt at all. With a reformed House of Lords, where you have elections by thirds, not with everybody up at the same time, not representing constituencies, elected on non-renewable lengthy terms on an electoral system that gives them individual mandate not just a party political mandate, those things will be very obvious to the British people.

Q223 Lord Norton of Louth: So what is the rationale for retaining the Parliament Act? Nick Clegg: Because it is the basis upon which you have the division of labour of powers, which serves us well and which we are not seeking to disturb or overturn.

Q224 Lord Norton of Louth: But it is based on one House being an unelected House. Nick Clegg: Well, as I say, I think there is a slight distinction between the genesis of the Parliament Acts themselves in 1911 and 1949 and the manner in which they have now become the organising principles by which the distinction between the two Houses is widely and commonly understood. I think that stands, and it stands regardless of the historical circumstances in which they were created in the first place.

Q225 Lord Pannick: Deputy Prime Minister, do you accept that among the important issues that are raised by this debate are whether an elected House of Lords would perform its functions as effectively as the existing House, and the impact on the relationship between Commons and Lords? My question is: as a matter of process, when you bring forward these proposals have you conducted or commissioned any external analysis of these issues by reference to foreign experience, or are you simply relying upon the accumulated wisdom and experience of the parliamentarians who have looked at this matter on numerous occasions in the past? Nick Clegg: I think there is one area of public policy where there is no shortage of objective, academic, expert advice from a myriad of directions, and that is reform of the House of Lords. You are quite right; it is not just the various commissions and cross-party groups. As I said yesterday I really do pay tribute not just to Lord Wakeham but to the Right Honourable Member for Blackburn, to Robin Cook and, dare I say it, your Chair. They have all played prominent roles in this in the past, the experience of which we are not seeking to overturn or second guess but to draw from. Yes, of course there is a huge body of expertise, particularly in academia. There is a whole discipline of comparative politics that has been made available to us. I have been delighted to see that the officials who work in Government on this and who work to me on this I think are unusually adept, effective and open minded about working with experts in academia, think-tanks and elsewhere, and who are specialised in comparative politics.

Q226 Lord Pannick: Are you going to publish any of this material? Nick Clegg: It is all published already. None of this is a state secret. All of this is open.

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Q227 Lord Pannick: There is no new material that you have commissioned for the purposes of this exercise? Nick Clegg: I am very happy to look at whether there are internal seminars we or others have held for which we could publish more information. There is absolutely no secrecy about this at all. As I said earlier, the striking thing about this is how much political sound and fury it elicits, but in a sense we are not seeking to reinvent the wheel. This is not new stuff. This is stuff that has been knocking about for about 100 years.

Q228 The Chairman: I think Lord Pannick perhaps had a slightly different point. I think this goes from what Lord Norton was saying, which is that what has surprised us is what may become a notorious paragraph seven in the White Paper. This is the point you have raised and mentioned about the fact it ought not to change the status of the relationship between the Houses. You have obviously described why you think that is not so, but I think this is the first time an exercise of this kind has been conducted without looking first at the roles, the powers, the conventions that attach to both Houses, specifically the House of Lords, in the context of then deciding what should then perhaps be a change in the membership. Nick Clegg: Maybe I have not been clear enough. We have looked at it. We have looked at the powers and the roles, and we concluded that there should be no change; that we should start from the premise that they exist exactly as they are now. What is equally true is that in the future, elected or non-elected, there will no doubt be shifts and changes. There always have been and there always will be. Can any government at any point in time, having decided that the division of labour is a good one, seek then to anticipate those future changes under whatever scenario? We do not accept the premise in government that we should first try to anticipate changes that are unknowable when we are content with the division of labour as it is, and when we are persuaded that the changes that we are proposing in terms of the composition of the House of Lords should not in and of themselves radically and fundamentally change that division of labour.

Q229 Lord Goldsmith: Can I just follow up on that for a moment? To some extent it is a point of information, though it is a supplemental to both Lord Norton and Lord Pannick. Between stasis, as you put it, and co-equal Houses, there is a great range in the middle. Many people in this House believe that one of the consequences of change would be a greater feeling of democratic accountability and therefore legitimacy in this House. This is the point of information: have you looked at the number of times that this House over the years has rejected an amendment or perhaps even a bill only to accept it later on the argument that you have asked the House of Commons to think again, they have thought again and come back, and you cannot reject it and must now defer to them because they are the democratically legitimate House. Those of us who have stood at the dispatch box in this House know how often we have used that argument. However, this argument simply would not, presumably, be capable of being run under the reformed House. Nick Clegg: There are two things to say, if I may. Firstly, the arrangements that we are proposing would, in our view, allow future members of a reformed House of Lords to make precisely that case. Namely, that the supremacy of the House of Commons should be acknowledged as set out in the Parliament Act, notwithstanding the fact that the composition of the House of Lords has changed. Secondly, and I think this was clearly very much in evidence at the time of the late-night sessions and arguments around the AV and

151 Rt Hon Nick Clegg MP boundaries Bill, there was a clear feeling that, because of the increasing number of members of this House who have recently retired or left the House of Commons, the nature of the debate was changing in any event. There was a more partisan, more tribal, more drawn-out quality to the debate than otherwise, and perhaps ideally, would have been the case. Now I have heard defenders of the best traditions of the House of Lords bemoan what is a change of character in the House of Lords in any event. Again, that is something that in a sense is baked in the cake and is a trend that is taking place regardless of the status of our latest proposals. One can speculate on whether that trend is for good or bad. You said earlier that it is not just about status and/or being co-equal, but also let us remember that there are changes taking place now that seem to be altering the quality of debate in the first place.

Q230 Lord Goldsmith: Forgive me, I am not going to go down that road either. My question was: have you looked at the number of times the argument has been used to get this House to accept, against its previously expressed will, a provision in a bill or even a bill itself? That might be an interesting indication as to how significant this question of democratic accountability and legitimacy is believed to be here. Nick Clegg: Of course it is. I guess the point I was seeking to make was: do I think that that acknowledgement of the supremacy of the House of Commons can continue to be made in future under our proposed reforms? Yes. Does that mean the form in which that acknowledgement is expressed might change a bit? It might do, but I do not think there is any evidence that either the content of our proposals nor the practice of bicameral systems in other parts of the world prevents that acknowledgement from being expressed at the right time.

Q231 Lord Goldsmith: I just do not quite follow that. I understand the argument about the Parliament Act of course; it would be possible for a government minister here to say, “You do realise that, if you reject this, the Commons can push this through over the Parliament Act, so you had better give in now.” I can understand that argument. In terms of saying that your views simply do not count as much as those of the Commons because you have not been elected by the people, an argument that is made to great effect at the moment, I do not quite understand how that argument could be made to a House that was largely elected. Nick Clegg: Well therein in lies the detail about whether it is largely or wholly elected.

Q232 The Chairman: The Draft Bill proposes 80%. Nick Clegg: No, exactly. One of the arguments made by those who advocate a mainly rather than wholly elected Chamber is precisely to enshrine the asymmetry by not being able to speak on behalf of a wholly elected Chamber and so to maintain that. As everyone knows I have always been an advocate of a wholly elected Chamber, but I totally recognise the force of the argument that, if one is concerned about the disturbance of the division of labour now, that would strengthen the argument in going down the route that we have set out in legislative terms in the Draft Bill.

Q233 Lord Renton of Mount Harry: My comment is very much that of an ex-MP. I noted in paragraph 30 that you talk about the members who are elected coming from five to

152 Rt Hon Nick Clegg MP seven constituencies put together, and the thought then that, in a sense, they will not in any way be copying the duty of MPs in the Commons to look after their constituents. I do not see how someone gets elected by a group of five to seven constituencies unless they say, “If you elect me, I will be looking after you.” That is the way you get the vote. Nick Clegg: I have some mixed experience of this myself having been elected as a Member of the European Parliament for a region the size of Denmark. The notion that I was elected because I was able to address people’s day-to-day concerns in their local communities was not the way it operated. Anyway, it would be a logistical impossibility to try to provide enough constituency service, if you like, to make that a meaningful relationship. That is why there is this huge distinction in our reforms between MPs elected for constituencies of just over 70,000 and members of a reformed House of Lords who would be representing areas made up of counties of close to half a million. Even if those elected members of a reformed House of Lords wanted to try to burnish their credentials through mimicking constituency work, I think they would find it an unwinnable task. Evidence in Scotland and elsewhere is that you get a little bit of overlap, but again people are perfectly able and accustomed to be able to distinguish between the kind of mandates and the kind of roles of one elected politician as opposed to another.

Q234 Lord Renton of Mount Harry: As an ex-MEP, you will know that one of the complaints of that life was that MEPs were not close enough and did not get to know their constituents well enough. I have certainly heard that. Nick Clegg: Yes, sure. To be fair, this might sound like a hair-splitting distinction, but I think it is quite an important one. I think the complaint, totally understandably, was made that because the European Parliament itself is in a different place dealing with 450 million citizens, that is the distance, rather than because you are not sorting out a planning dispute between neighbours. My experience was that people perfectly understood that a Euro MP had a very different mandate, a very different role and had different uses from a constituency MP. For instance I was very struck in the five years that I was there that business groups, consumer groups and trade unions cottoned on very quickly that Euro MPs in many respects have a better locus on some of the regulatory issues that are a real concern to them and their members than a backbench MP. They very quickly understood where the levers were and actually not that much of what you would call conventional constituency demands came to my office, because people understood that it was not really the job of a Euro MP to sort out their planning dispute with their neighbour.

Q235 Lord Norton of Louth: To follow that up, the method you were elected under is different from the one you favour for the second Chamber, which is STV. The argument for STV is that people can vote for individuals, so for an individual to get elected they are going to have to promise something. The experience of Ireland with STV is that it encourages excessive localism. Nick Clegg: The aspiration is that it will apply pressure to individual candidates to spell out exactly what they would be seeking to achieve, what principles and values they would be adhering to on behalf of these large districts, if elected to the House of Lords, rather than, as I say, a futile attempt to mimic the experience of STV elsewhere, which as you know takes place on a totally different geographic scale that allows for micro-localism in politics. I do not think the system would allow for that; I do not think it would be feasible.

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Q236 Lord Norton of Louth: Your point is that you could have competitions within parties. Nick Clegg: In STV? Yes. We acknowledged in the White Paper that there are other systems. The main opposition party, for instance, is much more keen on party list systems. The reason we are advocating a different acronym is precisely because it seems, and experience suggests, to do precisely what you describe—it encourages individual mandates rather than just party mandates.

Q237 Lord Norton of Louth: But the individuals then have to promise something in order to get elected. Nick Clegg: Yes.

Q238 The Chairman: We understand that, we understand the Irish example. Deputy Prime Minister you have been enormously generous with your time. I know you made a commitment to leave a bit early. Thank you very much. May I just confirm on the basis of your discussion with Lord Goldsmith that you have abandoned the ambition of having a 100% elected second Chamber? Nick Clegg: No.

Q239 The Chairman: Then I think we would want to return in much more detail to your understanding of how the conventions of the Parliament Act, the Salisbury Convention and so forth could possibly continue in a 100% elected House. I thought that what you had said to Lord Goldsmith was that your basis for believing that none of those relationships and conventions ought to change was to have an 80% elected Chamber. Nick Clegg: Let me be clear if I can. I so happen to believe, and I suspect Lord Goldsmith shares this—I suspect most people around here do not—that it would be possible in theory to have 100% elected reformed House of Lords and still keep a very clear division of labour and a relationship of asymmetry between one Chamber and the next. I think it is done in other bicameral systems; I think what we are proposing in terms of mandate, methods of election, term and so on would enshrine that. What I was acknowledging was that, if one has doubts about that, reservations or outright disagreement, that strengthens the argument for those who say only have a mainly elected House of Lords, because that would put any concerns about a conflict entirely beyond doubt because the transform mandate would not be complete. As I said before and as I said yesterday in the House of Commons, 80% as far as I am concerned is a whole lot better than 0%. One of the things that has blighted House of Lords reform for decades is seeking to make the best the enemy of the good. I would be perfectly content that we would move in that direction, particularly if the arguments that were deployed by Lord Goldsmith gained currency and therefore argue more in favour of that. What we sought to do yesterday was explain how an 80:20 split would work in legislative terms in the Draft Bill, because that is the more complex arrangement to illustrate in legislative terms, whilst explaining the case for a wholly elected House in the White Paper.

The Chairman: Thank you very much. I am sure we will return to this if we may.

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Nick Clegg: I am sure we will. The Chairman: I am very grateful for your time, which you have extended. That has been enormously helpful, particularly to our general inquiry into process. You have helped us very much on that. Thank you so much for coming. Nick Clegg: Thank you very much.

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