Constitution

HL Deb 15 September 2004 vol 664 cc1242-59

7.28 p.m.

Lord Patten rose to ask Her Majesty's Government whether they now consider that the United Kingdom needs a written constitution.

The noble Lord said: My Lords, I congratulate the noble Baroness, Lady Ashton of Upholland, on her new appointment. She has come from a department that is always full of challenges to one that might have been thought by some to be a rather quiet place. But I suspect that the Department for Constitutional Affairs will have many more challenges as constitutional change shoots up the political agenda in the next months and years. The noble and learned Lord the Lord Chancellor is very lucky to have the noble Baroness to help him in what will be a very difficult and challenging time for his department. I am also grateful to all those who have chosen to speak in this debate on the Motion, to the end of which might have been added the immortal words, "and, if not, why not?".

I freely admit that I am surprised to be asking this question at all, having had a hitherto inbuilt respect for our uncodified, partly written constitutional arrangements. Rather like the apocryphal Peer in that far-too-often-told tale who had a dream about speaking in this place and woke up to find that it was actually happening, here I am wide awake at least exploring the case for a written constitution. I am no expert nor a noted constitutional authority, as is my noble friend Lord Norton of Louth. Rather, representing the ordinary Back-Bench Peer in the street, I am sadly drawn to think that more formal arrangements may have to come along in the face of what I believe to be a constitutionally frivolous administration.

What is the charge sheet to support that? There is no mention of any proposed changes in manifestos to obtain legitimacy for constitutional change. There is no respect for precedent. There is no evidence of carefully thought-out planning for constitutional changes, and no belief in prior consultation, let alone Green or White Papers to test the water to gain understanding, let alone to seek consent.

My natural delicacy prevents me lingering too long on matters such as botched reshuffles, reducing, for example, changes to the Lord Chancellorship to the level of a Gilbert and Sullivan farce, painful parliamentary defeats in this place, or the setting alight of our judiciary for a while—alas, not keeping them alight and blazing long enough for my taste—let alone the broken constitutional pledges galore, for example, to our hereditary colleagues back in 1999, and very much more.

The outcome of the Government's self-styled "constitutional radicalism" has, I believe, turned out to be seriously half-baked. Let us just look at your Lordships' House, now left alone, as what was glaringly obvious to the most indolent of us—that the Government were on the verge of giving this House real political clout—has actually sunk in to the Government.

In the face of what seems to me to be rightly called "constitutional chaos", I asked on 9 May, in order to see what the view was, whether the Government were considering introducing a written constitution. I asked that because I believe in due process in constitutional change. I believe that constitutional change should not be left to one man—the Prime Minister—on a whim in this new era of sofa government, which I find so alarming.

If the Minister wants an example of that attitude, she needs only to look back to the Prime Minister's Pauline conversion on holiday one day from being dead against a referendum on the European constitution to being thoroughly in its favour, having, so far as I can see, never left the sofa of state to discuss the issue with his Cabinet colleagues for one moment. But the answer that I received from the Secretary of State for Constitutional Affairs was not very revealing; he simply said "No".

Another example of just how lightweight and frivolous I believe the Prime Minister has been on constitutional matters is that afternoon back in June 2003 when the right honourable gentleman decided on the spur of the moment to make those sweeping changes to the post of Lord Chancellor and to our top judiciary. As it happens, some of those changes—particularly to the judicial functions of the Lord Chancellorship—I do not dissent from. Indeed, a good few years ago—long before the cause became fashionable in your Lordships' House—I remember taking part in a debate with the noble Lord, Lord Desai, whom I see in his place. We both argued in the same vein, and, as it turned out, ultimately not in vain, for some of the changes to be made.

But I say to the noble Baroness that it is the constitutionally abhorrent way in which the changes have been carried out that makes me genuinely fear for our freedoms and to look to other jurisdictions with more settled arrangements—that is, requirements for two-thirds majorities of their legislatures before changes are made, and so on—with some envy. How those kinds of administration must look with wonder at our sofa-government arrangements in this country.

By coincidence, the law firm Ashurst is holding a debate this very night in London and at this very time to be addressed by, among others, our noble and learned colleague Lord Lloyd of Berwick on these very issues. The leaflet that I was sent inviting me to this debate gives it the excellent title, "A Constitution on the Back of an Envelope". Just so, my Lords. Perhaps in future we shall see the Great Envelope of State carried during State Openings of Parliament by the Lord Privy Seal.

Since the Prime Minister and the noble and learned Lord, Lord Falconer, got going, I have become more and more concerned. Since they have got going, I have rather revised my view that written constitutions are suitable only for foreigners and that they are just not British. In some foreign administration, there is an economic meltdown, a revolution, and the Nth republic is born with all the paraphernalia of articles of the constitution, supreme courts and what not. I am reassessing my thoughts now.

I am afraid that I have to tell your Lordships that I no longer have as much faith in our "now we are going to get really tough—oh no, perhaps we are not going to get really tough" judiciary as the guardians of our constitutional arrangements. However, I suspect that if the Government ever do succeed in ejecting the judiciary from their place here in this Chamber, then distance, far from making their judicial hearts fonder, might incite them to set up shop more as a pukka constitutional court with all that boring appellate work being rather a humdrum sideline.

I do not believe that the British constitution belongs to any here-today, gone-tomorrow politician who happens to be the current PM of the day; rather, I think that it belongs to the British people. Therefore, I conclude by asking the Minister what protection there is for the individual or the nation in constitutional change matters. I want to ask the Minister that but I do not expect to receive an answer. Secondly, do the Government have any plans to codify, at least, the parts of our constitutional arrangements that are written down? Again, I doubt that I shall receive a clear answer tonight.

In the mean time, I want to end with a burst of bipartisan constructiveness, which may surprise the Minister. We have an admirable and hard-working Constitution Committee in your Lordships' House, now under the chairmanship of my noble friend Lord Norton of Louth. For as long as this pell-mell constitutional change goes on, before we go back, or advance, to more settled arrangements, I should like to put it to this House that I think that the Constitution Committee should, once a year, report on the constitutional changes that have taken place in the previous year as a result of the activities of the government of the day and that, as a result of that report, we should have a full debate in your Lordships' House on what has happened to the constitution during the previous year. I believe that the present style—the sofa-iste approach to constitutional change in this country—cannot be allowed to continue.

7.37 p.m.

Lord Morgan

My Lords, in the allocated three minutes, I shall endeavour to make three points. I shall do so briefly because I believe that other noble Lords, particularly on the Liberal Democrat Benches, will raise them. First, the Government's admirable constitutional reforms nevertheless call for a further move towards written safeguards. I shall mention briefly devolution.

The Constitution Committee, referred to by the noble Lord, Lord Patten, chaired by my noble friend Lord Norton and on which I have the honour to sit, suggested how devolution is quite unsatisfactory at present. It does not deal adequately with intergovernmental relations; it does not deal with the possibility of conflict resolution; and it is perfectly possible that we will not have congruent governments of the same party in Westminster, Cardiff and Edinburgh. We therefore need more formal mechanisms. In particular, we made the point in our report that the concordats should be much more open and much more publicly available. At the moment, it all depends on informality, and that is not enough.

Secondly, and more importantly, the Royal prerogative is a fiction and a dangerous fiction. It includes a wide range of ministerial appointments and vast areas of patronage. It makes it difficult for the Royal Family. The present Queen has behaved impeccably but it is possible that a future head of state, for example, might have different views on fox hunting—I throw that out as a possibility—and that that might lead to problems. At present, the whole situation with regard to the Royal prerogative is an enormous cop-out for Ministers of any party. It has absolutely aided the growth of uncontrolled, undemocratic and unaccountable patronage—the so-called "demi-monde" of which the noble Lord, Lord Smith of Clifton, has written. I believe that it also has the effect of emphasising the status of our citizens as subjects and not as citizens.

Finally, I refer to the Prime Minister. Any Prime Minister is a beneficiary of Royal prerogative. We have seen the dangers of it in the Butler report. That report showed how changes in our constitutional mechanisms have led to serious effects in our foreign policy, and it absolutely makes the case for a far more written constitution.

First, the Prime Minister's power to declare war under the Royal prerogative should absolutely come to an end. As it happened, there was a parliamentary vote in March, before the Iraq war. But simply leaving it to one individual, particularly in the way in which the Butler inquiry showed that that decision was reached and with all the misrepresentation attached to it, means that we should go towards the American system of having parliamentary approval and should draw a great distinction between it and the fiction of the prerogative.

Finally—I know my time is up—the question of legality should be set out. If a war is to be undertaken, it should be clearly set out that it is legal and that constitutionally and internationally it is approved in law. Far too much is taken on trust. Our presently informal, secret, enclosed constitution is dangerous to our liberties and I greatly welcome the Motion that has enabled me, however briefly, to say that.

7.41 p.m.

Lord Thomas of Gresford

My Lords, from the platform of Rhyl town hall in my first and, as usual, unsuccessful parliamentary election in 1964, I called for three reforms: a Welsh parliament, proportional representation and the abolition of the House of Lords in its mainly hereditary state. The Liberal theme that linked, and still links, these issues was the absolute necessity for a new constitutional settlement that reconnects power to the people.

At the time, and for many years thereafter, these ideas were dismissed by Labour and Conservative politicians and supporters alike—the Conservatives because they were largely in power and were complacent with the processes that put them there. In Wales, we have never forgotten that it was Neil Kinnock who led the opposition to devolution in the 1978 referendum campaign before he became leader of his party. But under the wise leadership of John Smith, the Labour Party developed policies of devolution, parliamentary reform and concern for human rights that were his legacy to his party and resulted in substantial advances.

The legislative changes that the new Labour Government have, without any enthusiasm, put in place are curiously likely to be the Prime Minister's only lasting achievement in government, his place in history being subverted by the follies and failures of the Iraq war. I join with the noble Lord, Lord Morgan, in drawing attention to the fact that by convention only he exercises the royal prerogatives in foreign affairs and in decisions of peace and war. Although, as a concession, he took his flawed prospectus for war to the House of Commons to receive parliamentary support—from a tame majority obtained by what we have always regarded as an unsatisfactory system of first past the post voting—he did not have to that.

The Acts of Parliament that created Scottish and Welsh elected bodies and brought into our legal system the European Convention on Human Rights are only a piecemeal approach towards a written constitution. They are not entrenched in any way. Only last weekend, the Welsh Labour Party said that it wanted more powers for the Welsh Assembly, as the Richard commission had suggested, but it wanted to get back to first past the post voting so that it could have 95 per cent of the seats in Wales, as it thinks, and dominate the Welsh government for all time. No doubt, a Labour government with an overwhelming majority elected on first past the post at Westminster could grant them that with ease.

In throwing out the hereditary Peers, this Government shirk the introduction of democratic accountability in this House. Other noble Lords will speak of constitutional reform by diktat, notably the abolition of the Lord Chancellor without discussion and without consensus. I believe that a written constitution would define and protect the constitutional rights and freedoms of the people of this country. It would define the relationship between the head of state, the Government, both Houses of Parliament, the devolved parliaments and assemblies, and the judiciary and it would provide in itself a mechanism for change and adaptation that would ensure popular assent and consensus. The doctrine of parliamentary supremacy, which was a useful tool to fight the power of the monarch in past centuries, has been subverted and this Government do not hesitate to challenge the rule of law, nor to make overt attacks on judges and the judicial system.

7.44 p.m.

The Earl of Erroll

My Lords, I thank the noble Lord, Lord Patten, for this opportunity to discuss this subject. I never thought that we needed a written constitution. Our constitution was in several places, but while people had respect for morals and standards that did not matter. The problem is now that, without an impregnable defender for a written constitution, it is not worth the paper it is written on. The new Supreme Court will still be subject to the Commons, who can introduce legislation that can change the method of appointment of judges, the parameters in which they operate or whatever. In fact, at the moment, the Supreme Court is going to be subject to a junior Home Office Minister. He who pays the piper calls the tune.

We now have a system in which the checks and balances have mostly been dismantled or outflanked. The Prime Minister used to be primarily the head of the executive. He was the chairman of the Cabinet. But now the Prime Minister controls the monarch's powers and has arrogated most of those powers to himself. This person now also controls the more powerful Chamber of the legislature, the other place, which should be controlling him. He can also push anything through this, our upper Chamber, if he wants to.

The problem is that we have nowhere to go for protection against an executive that gets out of control. We must re-establish that protection. Therefore, I am beginning to think that we should start to talk about separating the powers of the executive from those of the legislature and re-establishing a three-band system, rather as they have in America, of which I never used to approve. Until we have totally protected, separate and proper checks, we cannot have an effective written constitution. At that point, we can have one, and it might be useful in this modern day and age.

7.46 p.m.

Lord Norton of Louth

My Lords, I am not as easily swayed by such short-term considerations as some noble Lords appear to be. My noble friend raises an important question. It may save the time of the House if I reveal what the Minister will say in answer to it. I know because the Minister in the other place, Christopher Leslie, gave it last week in a Written Answer. He said: We have no plans to formulate an overarching codified constitution".—[Official Report, Commons, 7/9/04; col. 1059W] That is an appropriate response. I say so for two reasons. The first derives from an apparent paradox. One reason why there is pressure to introduce a written constitution is, as my noble friend explained, because of the changes to our constitutional arrangements brought about by the Government. The problem for the Government is that they have not been able to locate their constitutional changes in any intellectually coherent approach to constitutional change.

The Government have not been able to say what a constitution is and have no view about what a constitution is for. Do they see the constitution as a constraining document, designed to entrench certain fundamental pre-political values, or do they see it as a means of enabling the will of the people to be paramount? Those positions—characterised as negative and positive constitutionalism respectively—are not necessarily mutually exclusive, but deciding the relationship between them is fundamental to crafting an entrenched, codified constitution. The problem for the Government is thus that they are unable to say what constitution they want to see in place in the United Kingdom. Until they are able to do so, there is no basis on which they can even contemplate introducing a written constitution.

I come to my second point. One can see why some advocate a written constitution. We have heard the arguments already. It is argued that it will provide greater clarity and protection for citizens. Government and Parliament will not be able to use the constitution as a political plaything. However, a written constitution will not necessarily deliver the benefits claimed for it, and certainly not the benefits that have been claimed for it so far. It does not necessarily inject greater clarity—far from it. The provisions are often drawn so broadly that one only knows what they mean when there are challenged in the courts.

Written constitutions may be designed as constraining documents but be interpreted in such a way as to strengthen executive power. They can be, and variously have been, interpreted in such a way as to shift power from one political institution to another. That has happened in the United States. Changes have occurred without any reference to the people. In the United Kingdom, if people do not like what the Government have done to our constitutional arrangements, they can turn the Government out at the next election. If people do not like what a Supreme Court has decided, there is very little they can do. Some may say that is no bad thing, but that brings us back to different interpretations of what a constitution is for.

Of course there are problems—various noble Lords have already mentioned them—but a written constitution is not an answer to those problems. It has not been an answer elsewhere, and I see no reason why it would be an answer in this country. A written constitution is undesirable. It is also, under our present constitutional arrangements, unachievable. We do not have the means for bringing about a written constitution, certainly not an entrenched constitution because it would derive its authority from Parliament and the doctrine of parliamentary sovereignty prevents entrenchment.

For reasons of time, I conclude by saying that the Government have arrived at the right answer, but for the wrong reason. When they have reflected more fully, and can contribute authoritatively to the debate, they will be able to justify their answer with much greater force.

7.50 p.m.

Lord Desai

My Lords, demands for a written constitution and complaints about prime ministerial powers are always louder when the Labour Party is in government than when it is not. However, this is a serious issue. I have always believed in a written constitution, because in a sense there are written drafts of the Westminster constitution in existence in many of the former colonies. We actually know how the British constitution can be written down. It is nothing very mysterious and we have several experiments in Canada, India and Australia that throw light on how a Westminster constitution could work. Looking at America is the wrong idea—we should look at the Commonwealth countries.

We have been going through a tremendous constitutional revolution in the past seven years. Of course, it is not completely entrenched, it is not written down and it is still evolving, but the fact that devolution has happened and the fact that human rights are embodied in law, has fundamentally changed the British constitution. That is what has led to the reform of the judiciary.

It is a pity that the House has treated the Government's Constitutional Reform Bill with less than the credit it deserved, but I hope that eventually we will have a supreme court, because that will be the beginning of the separation of powers that the noble Earl, Lord Erroll, wanted. At least there will be a separation of powers between the judiciary and the two other branches of government—the Executive and the legislature.

The problem of executive power is of course—as Tom Paine pointed out 200 years ago—that the Royal prerogative now resides in the Prime Minister. We now have an effectively unicameral legislature. A majority in the House of Commons gives any Prime Minister enormous powers. It is to the credit of this Prime Minister—I do not often give him credit—that he came to Parliament on the question of the Iraq war, which no previous Prime Minister has done or had to do. That is a new precedent.

We should think of the constitution in terms of the acquis communautaire—we should have an acquis brittanique. As it accumulates, we will know what the unwritten constitution would look like if it was written down or at least gathered together in one place. As bits become outdated we should throw them out and staple in new bits. Perhaps that would be the only way that we would be able to have a written constitution. Given the limitation of time that I face, I cannot tell the House what I would do further to improve the constitution, but I thank the noble Lord, Lord Patten, for initiating the debate.

7.53 p.m.

Lord Hooson

My Lords, I am pleased to have the opportunity to make a brief contribution to this ongoing debate, which has been a characteristic of political life in this country throughout the time that I have been involved with it. It has been accentuated by our accession to the European Union, the development of various levels of devolution within our country and the evolution of an idea of a supreme court, designed among other things to replace the House of Lords Appellate Committee as the ultimate appellate court.

We have had reason, because of the Iraq war, to consider the ultimate power of the Executive—the use of the Royal prerogative. Some of your Lordships will remember that when the Attorney-General gave the Government's view of the war, I pressed him to give an undertaking on behalf of the Government that they would not simply rely on the Royal prerogative to declare war on Iraq, but that they would seek a resolution of the House of Commons, which is very important. This situation is simply not good enough for modern times. I entirely agree on that point.

We risk the lives of many of our citizens by means of the use of a Royal prerogative, which simply is not justifiable in modern times. The Government acknowledged that by agreeing to have a resolution of the only elected House governing the whole country. I have not the slightest doubt that our country needs, pretty urgently, a written constitution. I congratulate the noble Lord, Lord Patten, on his timely raising of the issue, which should be the prelude to a much wider debate on all the implications of a written constitution.

7.55 p.m.

Lord Lucas

My Lords, I am very grateful to my noble friend Lord Patten for the chance to speak for three minutes. Actually I have got a chance to speak for rather more because we are running well ahead of time, but I shall not abuse that. What we really need is a proper debate. I count on the authorities to give us the chance, and the suggestion of my noble friend Lord Patten of an annual debate as a result of the Committee's deliberations seems to me a most excellent idea.

My feeling that I want more of the constitution written down comes from two aspects of what has been going on. First, we have had a lot of changes, which, as my noble friend Lord Norton said, are not joined up, are not part of a consistent programme—I cannot see where they are going. It is clear that other changes are needed to follow on and we again have no idea what they are. The second aspect involves a certain feeling that some of the changes which are being sneaked up on us are ones that we should not agree to, and no democratic country should agree to, if we had a proper regard for our rights. I think we are seeing a process, and we will certainly see a process if we get a third Labour government, of the erosion of the status and powers of this House. We are about to get a Bill rammed down our throats on as unimportant a subject as fox hunting. Now, if they can do it on fox hunting they will start to be able to do it on all sorts of things, and the use of that power will become more prevalent.

We had a position, when most of the hereditary Peers were removed, that we would have a considered reform of this House. That has been abandoned. We had a position where it was accepted that the proportions of the parties in this House should reflect, broadly, votes cast at elections. We are now moving towards a position where it seems to me the principle is that the party in government should have day-to-day control over this House and that votes overturning the government's wishes should be the exception. That at least is the rhetoric of Mr Hain in another place and is the direction in which it seems to me decisions are moving.

We have a Bill before us at the moment—the Civil Contingencies Bill—which will place the whole power of Parliament, the absolute power in the constitution, in the hands of a single Minister in the event of an emergency, with no obvious way in which that power could ultimately be taken back, because the power could be used to amend or change the constitution of this country in any way that that Minister so chose. We are in a position in which there appear to be considerable dangers. Under those circumstances one wants to be able to put a few pegs in and say, "No, let us not go down that road".

I think that I share the feeling of my noble friend Lord Norton—I do not want to go entirely for a written constitution or for something that is entirely the subject of judges' decisions. But as he has pointed out on other occasions, we are already heading in that direction. We are subject, as a result of being a member of the European Community, to the courts in that aspect. We are subject, as a result of the Human Rights Act, to the courts in that aspect. They are, if not in absolute, at least in effective control of part of our constitution. To go a little further and to entrench some of our basic rights, as things over which the judges have an influence, seems to me something which we should discuss.

7.59 p.m.

The Earl of Mar and Kellie

My Lords, I remind the House that I am also a member of the Constitution Committee.

I was attracted to this Unstarred Question by the opportunities afforded to me to pursue the cause of further Scottish autonomy and, in so doing, to discourage anything which would prevent or hinder the free flow of the ever-developing will of the people of Scotland.

I believe that the people of Scotland would serve themselves best within a dominion. I do not wish to end the social union of the United Kingdom, and wish Queen Elizabeth to be head of state. Rather more calmly, I draw some significance from the wording of the noble Lord's Question—the fact that he has chosen to refer to a written constitution in the lower case. I do not know whether I am reading more into this than is really there, but I could develop the argument that the United Kingdom already has a—lower case—written constitution. It is to be found in the myriad documents, laws, traditions, agreements and conventions, both written and unwritten.

A constitution is, of course, no more than the way things are done in a state at the present time. I suspect that my noble friends would prefer to have a tangible document of statutory proportion. I am sure that my noble friend Lord Goodhart will restore Liberal Democrat order to this short debate.

I conclude by seeking to establish that an "upper case" Written Constitution would be impossible to set down in any form of brief document, and that anyone attempting to draw up such a document would find too many valid anomalies. They would have to approach the task with a sense of logic. Without proposing massive changes, I doubt that our United Kingdom constitution could be committed to paper in a logical form. Consider, for example, the many different forms of devolution.

The Question of the noble Lord, Lord Patten, is a good one. The answer is that we need a fluid constitution rather than a fixed written one, with all its false implications of permanence.

8.1 p.m.

Earl Russell

My Lords, I thank the noble Lord, Lord Patten, for introducing this very important topic. It is one on which, in this country, we are all out of step but our Johnny. When Lord Wilberforce spoke in the farewell debate for Lord Taylor of Gosforth, he pointed out that the only two countries dealing with this issue which did not have a written constitution were Britain and Israel. It is a very limited list of exceptions. Why this came to be so and how long the thinking behind it has been there are instructive questions.

This involves a great many areas of state. Like my noble friend Lord Mar and Kellie, I am interested in its effect on a state of many parts. This is something that the English—and I say the English, not the British—have had great difficulty, over the centuries, in assimilating.

It has been held that a state was made up of many joined parts with different forms of government, different laws and different institutions. Sir Thomas Craig of the Scottish Court of Session, writing on the Union of the Crowns in 1604, drew up a list in which he found that only the English had a strict unitary sovereign state of English dreams. The English thought it was the only way in which anything was ever done. The result was that the English were quite unable to accommodate the difference between the different parts of the many-partied British state.

Sir Edwin Sandys, speaking in another place in 1604, said: A kingdome is indivisible, and may not contain within itself several kingdomes". It is a trouble the English still have. They dream of treating Scotland like Wales and have done so since 1604, to the offence of the Welsh and the bewilderment of the Scottish.

The English cannot see the world as it is; they constantly stumble over the errors they make and constantly think, like King John in 1208, that they can banish someone because they are cross with them. It is not a constructive way to carry on.

8.4 p.m.

Lord Goodhart

My Lords, I start by welcoming the noble Baroness, Lady Ashton, on her first appearance on the Front Bench in her new ministerial capacity.

Our policy, as Liberal Democrats, has for a long time been to have a written constitution. I therefore very much welcome the noble Lord, Lord Patten, as a slightly belated convert to this belief. Before we ask whether we need a written constitution, perhaps we should ask ourselves whether we already have one. To a large extent, as my noble friend Lord Mar and Kellie suggested, the answer is yes—from Magna Carta through the Bill of Rights, the Act of Settlement, the Act of Union, the Reform Bill of 1832 and subsequent Bills on the franchise, the Parliament Acts of 1911 and 1949 and the European Communities Act 1972.

We have had a particular rush since 1997—we have had the Scotland Act, the Government of Wales Act, the Human Rights Act and the House of Lords Act. The Constitutional Reform Bill, which we largely support, is going through your Lordships' House. There is the possibility in the not-too-distant future of a Civil Service Bill and, we hope, further significant reform of your Lordships' House.

To describe the United Kingdom constitution, therefore, as unwritten, is not altogether accurate. There are, of course, important gaps, especially in relation to the Crown prerogative. Do we need to fill those gaps and bring together the constitutional statutes we now have into a formal written constitution? That is certainly possible to do. As the noble Lord, Lord Desai, pointed out, it has already been done in relation to the Commonwealth countries to which we bequeathed, as a gift on their independence, constitutions which had been drafted by distinguished British academics.

The question whether we want a formal written constitution really turns on whether we want to entrench some provisions of that constitution. Should we require some special protection such as an enhanced majority for making amendments to the constitution, at least for its core provisions? I believe that we do.

At present, in theory, the Scotland Act could be repealed and the Scottish Parliament abolished by a simple majority of Parliament and, indeed, using the Parliament Act, by a simple majority of the House of Commons alone.

In most countries, the key provisions are indeed entrenched. The main constitutional provisions—the franchise, the provisions of the Human Rights Act and the central elements of devolution among them—should be not only written but also entrenched in order to prevent their casual alteration by a temporary majority in the House of Commons based on a minority of votes at a general election.

8.8 p.m.

Lord Henley

My Lords, I join the noble Lord, Lord Goodhart, and my noble friend Lord Patten in offering my congratulations to the noble Baroness, Lady Ashton, on taking up her new responsibilities. It is some time since I left the Department for Education and Skills and I have been through various other spokesmanships since then. The noble Baroness has gone straight from education to constitutional affairs and I can assure her that she might find it quite a big jump, but I look forward to what she has to say later this evening.

I also thank my noble friend Lord Patten for introducing this subject, which everyone would agree is very large. We have had a distinguished list of speakers, including three Members of the Constitution Committee, and it is virtually impossible to do justice to a question of this kind in a one-hour debate during the dinner hour in this House. For that reason, I offer my support, echoed by others, to my noble friend for his suggestion that the Constitution Committee should report on any changes that have been made to the constitution at least yearly and that, through the usual channels, that report should result in a full debate on such matters in this House. The Government should welcome that suggestion and this House should be able to carry it out very well indeed.

As my noble friend made clear, we have seen some fairly major changes to the constitution under this Government. Such changes include the change in the status of the Lord Chancellor, which we are in the process of debating, and changes to the House of Lords judiciary, born of the desire to have a Supreme Court and so on. As my noble friend made clear, we have had very little consultation on that. There has been no planning whatever and one could say, as has been said before, that much of it has resulted from botched attempts at reshuffles. As we now know, one such reshuffle led to the Constitutional Reform Bill and the desire to remove the Lord Chancellor. That Bill now seems to be slipping rather fast simply due to the Government's urgent desire to abolish hunting, but we can debate that on another occasion.

On this occasion, I simply echo the view of my noble friend Lord Norton of Louth that we on these Benches do not see the case for a written constitution. It is both undesirable and unnecessary. In the three minutes that I have available to me, it is not for me to develop that argument any further. I shall merely repeat a number of questions that have been put before the Minister, because it is important that she should answer them. First, will she give a guarantee that the Constitution Committee will be allowed to have a full debate on a report, should it produce that report annually, as suggested by my noble friend Lord Patten? Secondly, will she turn her mind to the important question raised by her noble friend Lord Morgan and others of the Royal prerogative and comment on his views that Parliament should have to consent to going to war and that it should not be a matter which the Prime Minister can bring forward under the Royal prerogative?

8.12 p.m.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland)

My Lords, I thank the noble Lords, Lord Patten, Lord Henley and Lord Goodhart, for their comments about my arrival in your Lordships' House in my new role. As the noble Lord, Lord Henley, said, I have gone straight from education to constitutional affairs. It is a move that I very much welcome and I look forward to working with noble Lords on my new brief.

Inevitably, on my first appearance before your Lordships five days into a new brief, I have listened with great interest to noble Lords who have huge experience and I am delighted that we have had the opportunity for this debate. I am in full agreement with noble Lords who have also indicated that, in the time allotted to us, we have not done justice to the subject and I hope that an occasion will arise when we can debate these matters at greater length.

The noble Lord, Lord Henley, asked about the role of the Constitution Committee—an issue in which the noble Lord, Lord Norton of Louth, is particularly interested. I fear that that is a question not for me but for the will of the House. I am sure that there are ways in which the issue can be taken forward through the usual channels, not least through the chair of the committee, and opinions will come forward. I look forward with interest to hearing them.

Lord Patten

My Lords, notwithstanding what the Minister has just said about the usual channels addressing my suggestion of an annual report from the Constitution Committee followed by a debate—which seems to have met with some approval around the Chamber—will she perhaps take back to the Lord Chancellor the fact that, to the best of my knowledge, since his department, which is now such an ornament, was set up, it has never sponsored or brought before your Lordships an opportunity for a debate on constitutional matters? He should take the initiative in doing that and I am rather surprised that he has not done so.

Baroness Ashton of Upholland

My Lords, as the noble Lord will know, the procedure of your Lordships' House can sometimes seem unusual. The matter is very much in the hands of those who wish to bring forward debates. I will ensure that my noble and learned friend understands the points which this debate have raised. It partly depends on the work of the usual channels and on the Constitution Committee itself. It would be completely wrong for me to take a view without the noble Lord, Lord Norton of Louth, being able to take the matter back to the committee. That would be the right way to do it.

I say to the noble Lord, Lord Patten, that I read his speech of 16 February 2000 on judicial appointments. It is very interesting that the noble Lord referred to that in his comments. That is of particular interest to me. I was also very interested in his use of the word "sofa". It is not something that I recognise in how our Prime Minister operates—in the work that he undertakes or the style in which he does it. As regards this particular reshuffle there is nothing botched about me.

It is very important that I take this opportunity to listen and learn. I am delighted that the noble Earl, Lord Russell, was able to be here this evening. I am particularly delighted that I have not lost the ability to have the rapport with the noble Earl which I had with him on education matters. I have a great deal to learn from the noble Earl and it is a great pleasure to see him here this evening.

The constitution has been described as being unwritten, but that is inaccurate. I quote Vernon Bogdanor, who said it was a misleading statement that implies that our constitution provisions are handed down from generation to generation by word of mouth. As my noble friend Lord Morgan said—and this also refers to the noble Earl, Lord Mar and Kellie, who spoke about the "lower case constitution"—large parts of it are written. The distribution of powers in Westminster and the devolved administrations were matters raised by a number of noble Lords. That is set out in the legislation. The human rights provisions applicable to citizens of the United Kingdom are also written.

I realise that that is not the heart of the argument. Noble Lords were very clear about that and the question of codification, which is upper case, according to the noble Earl, Lord Mar and Kellie. As the noble Lord, Lord Patten, said, that is the critical part of what we would look at. Codification is scattered across a range of statutes, case law and conventions. I was interested in the comments of my noble friend Lord Desai about gathering them together. It would be interesting to see what it would be like. That is quite different from saying that we should move towards a codified constitution.

If we were to collect these provisions as my noble friend indicated, the constitution would still be unenacted. Parliamentary, sovereignty, rather than a written constitution, has been the foundation of our legal and political system.

Noble Lords will recognise that for me this is the first foray into this debate. I was struck by two particular arguments or issues which I would like to share with noble Lords. The first is that I believe that it would create a fundamental change in the way in which the people of this country are governed. I recognise that parliamentary sovereignty is a critical issue. The noble Lord, Lord Norton of Louth, said that it is the core of our constitution and political system. It has always had the authority to change part of the constitution. In practical terms some changes are very unlikely. For example, now that we have separate assemblies for Scotland for Wales I believe it is very difficult to see how Westminster could take back those powers nor, indeed, in my view, should it.

The issues which have been raised as regards the Richard commission and the work taking place in developing that are also a critical part of the evolutionary nature of our constitution about which I shall say more in a moment. Therefore, my contention would be that to introduce a written constitution would in a sense introduce legal limits on the authority of Parliament.

Noble Lords have raised concerns about the authority of Parliament. Politically, whichever government are in power it is the nature of opposition to talk about how the government use the authority of Parliament. But as my noble friend Lord Morgan and others said, there are real issues of concern. On the specific point that my noble friend raised, the Government's response to the Public Administration Committee said: The government are accountable to Parliament for any armed conflict it engages in, as for anything else, and the government have given repeated assurances that Parliament would be given an opportunity to debate and scrutinise decisions about the deployment of British forces in armed conflict overseas. Furthermore, the Government is also mindful of the need to keep Parliament closely informed of developments during the course of the conflict through statements and … debates as necessary". I believe that that sets out very clearly the Government's position. I shall take on board and ponder what more has been said about the Royal prerogative. That is a new issue for me, as noble Lords will recognise. In conclusion on the particular issue of Iraq, there was a vote in Parliament, as has been recognised.

Apart from the monumental change that a written constitution would involve, it is also true to say that we would have the example of a court that was unequivocally superior to Parliament, because this court would be able to tell the legislature that it was acting unconstitutionally. I would draw the attention of the noble Earl, Lord Russell, to the example of the United States of America and the Supreme Court. We know that the Supreme Court plays a very important role: issues around racial segregation in schools, abortion, euthanasia and voting rights. Whether one approves or disapproves of the role and decisions of the US Supreme Court, it has none the less played a particular role in terms of the constitution.

We believe that decisions should ultimately rest with politicians, elected by and accountable to the public. I have always understood that the core principle of democracy is that you can throw a government out. That is a principle that we should hold dear, rather than look beyond to say that we would put power in the hands of essentially unaccountable and unelected judges—good, honest people though they may be—in that way. That is not this Government's position.

I think—and noble Lords have expressed this concern, too—there are real issues around the politicisation process that go alongside that. Noble Lords know only too well the issues around the Supreme Court in America. I will not bore your Lordships with them. But whatever commission is appointed to appoint people, there are always issues. Doing the Higher Education Bill, I had a number of interesting debates about how one appoints individuals, never mind in this way. There are real issues that one would have to consider very carefully.

I found the point of the noble Lord, Lord Goodhart, about the percentage interesting. But, again, I think about America and some of the issues about changing the constitution there. One thinks about voting, particularly at the moment. There have been a number of examples where a decision over whether one should have the same basis of voting across each state in the United States required—I think—a two-thirds majority in each state's vote. That is very difficult to achieve. One would have to think very carefully about how one moves away from a simple majority. But the noble Lord makes an important point. Again, I am taking all these points away to consider more carefully.

One of the really important aspects of our constitution is its flexibility. I mentioned evolution, and it is quite important that we have a constitution that can evolve over time, that can be refined to respond to political or popular pressure, and can respond to change and be remodelled. We have already talked a little about devolution. I have said that that is an ongoing process, particularly in the light of the work of the noble Lord, Lord Richard. But there are many other issues, I am sure, that noble Lords will know far better than I. One would want to consider flexibility.

It is worth saying that if you write it down, it does not mean it is the end of everything. There have been 11,000 proposed amendments, as I understand it, to the US constitution, 27 of which have been made. But the way in which our constitution operates gives us that flexibility, that sense of evolution. I believe it confers ownership on the people, through the elected representatives—the critical factor being, as I have already indicated, that they can be thrown out.

I think an unwritten constitution gives us that flexibility. Those would be—for me, at this stage in my ministerial career in the Department for Constitutional—Affairs the two critical points upon which I felt very strongly. I would probably go on to argue that it is not a priority. Governments always have to think in terms of priorities.

Earl Russell

My Lords, if the Minister studies the judgments of the noble and learned Lord, Lord Reed, on liabilities of the disabled, I think she will find an example of flexibility outstanding even by the examples of parliamentary practice.

Baroness Ashton of Upholland

My Lords, I will indeed look at those and, if I might, talk to the noble Earl about them. I thank him for the intervention. These are important issues where as much information as I can receive is critical.

I do not recognise, inevitably, that what we have done since 1997 has been either frivolous or on the spur of the moment, or any of the other words that have been used. This Government are committed to promoting reform where it is needed. The way we are working is very important in terms of what we offer to the people of this country, and the evolution of our constitution—hence my delight in being part of the Department for Constitutional Affairs.

My final point is about an important issue for those who, perhaps, are less involved in constitutional law or in the matters at the heart of our debates—that is, the interpretation of our constitution. The issue is about the rights, relationships and practices expressed in the constitution and how they are upheld and respected—about how we apply the constitution, if I can put it that way, in daily life. It is critical that we do not give ourselves up to the illusion that we can write down the constitution and that that is the end of the story. As I have explained, it would be far from it.

All those countries with a written constitution have a raft of supporting legislation to back up and interpret that constitution. That is the critical function of the department to which I belong. It is a critical part of the work that we do, ensuring that the interpretation is there and that our constitution is working for the people of this country. Perhaps the classic example of that process is with the Human Rights Act. It is critical that we ensure that the Act leads to greater respect for human rights in public services, that citizens can exercise their information rights effectively, and that they are connected to the democratic processes, including voting, which is such an important part of our democracy.

In conclusion, I again thank the noble Lord, Lord Patten, for raising the debate. I look forward to many other opportunities to discuss and debate these issues, I hope at greater length. I look forward to that debate not only in your Lordships' Chamber but also outside. I hope that I have successfully answered the question laid before me.

Lord Davies of Oldham

My Lords, I beg to move that the House do now adjourn until 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.27 to 8.30 p.m.]