Queen’s Speech

Lord Pannick Excerpts

Monday 14th May 2012 Lords Chamber

[Lord Pannick]

My Lords, this Government have a poor record on constitutional reform. The observations of your Lordships’ Constitution Committee, of which I am a member, on the Fixed-term Parliaments Bill may perhaps be applied more generally. The Government’s legislative proposals have owed more to short-term considerations than to a mature assessment of enduring constitutional principles or sustained public demand.

The Fixed-term Parliaments Act was no doubt a political necessity for this coalition but I know that I am not the only noble Lord who thinks that its constitutional merits are far less obvious. The Parliamentary Voting System and Constituencies Act introduced a rigid formula for constituency boundaries. Your Lordships will recall that this was the high price paid by the Liberal Democrats—one which their candidates will be paying at the next general election—for a referendum on a system of electoral reform, AV, which even the Liberal Democrats believed to be unsatisfactory.

I hope that in this Session of Parliament, as we debate the constitutional Bills to be brought forward, the Government might be more willing to listen to constructive criticism from this House on their proposals. The noble Lord, Lord Bichard, mentioned the problems that we have had in the past two years.

This fascinating debate has focused, predictably and understandably, on reform of this House, but there are at least five constitutional measures in the gracious Speech. The first is the very welcome measure to reform the rules governing succession to the Crown so that the oldest child of the late monarch will succeed, not the oldest son, and to remove the unjustifiable bar on the monarch marrying a member of the Catholic faith.

The second constitutional measure is the Electoral Registration and Administration Bill, which the noble Lord, Lord Rennard, spoke about earlier. I am disappointed that the Bill published does not seek to implement the recommendation made by your Lordships’ Constitution Committee in its report dated 25 January 2012 that anyone on the electoral roll who is in the queue to vote at the polling station at 10 pm should be allowed to vote. The present system, as seen at the previous general election, prevents people voting even though they turn up at the polling station before 10 pm and if there is a failure, beyond their control, by the returning officer to ensure that an adequate number of staff is on duty to meet the demand. This is a matter of real constitutional importance. We are all concerned about the low turnout in elections. It is surely desirable to accommodate those who make the effort to turn out to vote and who arrive at the polling station before it closes at 10 pm.

The third constitutional measure is contained in Schedule 12 to the Crime and Courts Bill that your Lordships’ House will soon be considering. I welcome the provisions contained therein to promote judicial diversity. The measures are very similar to those recommended by your Lordships’ Constitution Committee in its report published in March.

The fourth constitutional measure is that the gracious Speech mentions a Bill to allow courts to hold closed proceedings in cases that have national security implications. Your Lordships’ House will want to scrutinise most carefully any such provision to ensure that limitations on open justice are approved only to the extent strictly necessary.

The fifth constitutional measure is, of course, the Bill to reform or, as some noble Lords have suggested in this debate, destroy this House. Your Lordships have heard some exceptional speeches on both sides of the argument. I am, I think, in a very small minority of your Lordships on this issue. I can see the strength of some of the arguments on both sides. That may help to explain why I earn my living as an advocate, not as a judge.

It is very clear that there is a very strong argument that this House as presently composed performs well its limited role, but vital function, of scrutinising legislative proposals. There is a very strong case that an elected House would not be prepared to defer to the House of Commons and so would threaten the primacy of the other place, but surely we also have to recognise that there is a very strong argument that membership of a legislative Chamber, even one with limited powers, most of whose Members answer to a political Whip, cannot continue to depend on patronage. It should be based directly or indirectly on the will of the electorate or be amended in some other fundamental manner.

There are strong arguments on both sides. Noble Lords should not be surprised that there are strong arguments on both sides of the case. It is precisely because of the strength of the competing arguments and the impossibility of reconciling them that this issue has festered and has not been resolved for over 100 years.

It is plain from the speeches in this debate, the Joint Committee reports and the debate on those reports that we had a couple of weeks ago that one of the central questions for the Government, which they have not yet answered, is: what measures will be included in the Bill, when it is brought forward, to preserve the primacy of the other place? As I understand it, that objective is shared by the proponents and opponents of the Bill. Indeed, in his speech on 1 May, the noble Lord, Lord Hunt of Kings Heath, said from the opposition Front Bench that this,

“is perhaps the most crucial point of all”.—[Official Report, 1/5/12; col. 2102.]

I respectfully agree with him. That question has always been at the heart of the debate about the future of this place.

Noble Lords will know that in his stimulating book about the Parliament Acts, Mr Balfour’s Poodle, written in 1954, Roy Jenkins—Lord Jenkins of Hillhead—said that reform of the composition of the House of Lords had been so long delayed because what he called “the left” in politics was,

“interested above all in the supremacy of the Commons”,

and so,

“sees the relationship between the two Houses, rather than the composition of the second, as the dominant issue”.

In my evidence to the Joint Committee, I addressed one vital aspect of the primacy of the Commons. I suggested that, as a matter of law, the Parliament Acts would not continue to apply if a House of Lords reform Bill were to be enacted so that the upper House had an 80% or 100% elected membership. The simple reason for that is that the Parliament Acts were expressly concerned with the interim period prior to reform of this place. The noble and learned Lord, Lord Goldsmith, gave evidence to like effect, and I am pleased that the noble and learned Lord, Lord Mackay of Clashfern, said in this debate last Thursday that he took the same view of this matter.

I suggested in my evidence to the Joint Committee that any Bill brought forward by the Government should contain express provisions that addressed whether and to what extent the Parliament Acts would continue to apply. I did so because the inevitable and wholly undesirable alternative is that this fundamental matter would be left open to doubt and would eventually be resolved by the courts, rather than by Parliament. The Joint Committee concluded in paragraph 368:

“If the Government wish to ensure that the Parliament Acts apply to a reformed House, they should make statutory provision”,

in the Bill. The committee agreed with the evidence that was given by me and the noble and learned Lord, Lord Goldsmith. The Minister and the Leader of the House have been very reluctant to express the Government’s view on this vital question. In responding to this debate, will the Minister now please answer this point and tell the House what the Government’s position on this matter is?

Finally, on the more general question of reform of this House, I ask the enthusiastic supporters of the reform Bill to recognise that many noble Lords, of whom I am one, who are concerned about the implications of the Bill, particularly for the relationship between the two Houses, are as committed to democratic principles as they are. There is no monopoly of concern about democratic principles on one side of this argument. The noble Baroness, Lady Hayman, made that point most eloquently today.

A consensus exists on the way forward on these difficult issues where there is a battle between right and right. The consensus would involve as a vital and much-needed next step in House of Lords reform measures that would include a reduction in the size of this House, an end to by-elections for hereditary Peers, the exclusion of noble Lords whose ignoble conduct makes it wholly inappropriate for them to remain Members of a legislative Chamber and, I would suggest, the removal of the Prime Minister’s powers of patronage and their replacement by a statutory appointments commission. I very much hope that the Government will recognise that such measures of reform would be a substantial, worthy and realisable achievement.

I look forward, as I am sure do other noble Lords, to contributing to the vital scrutiny by this House of the constitutional measures to which the gracious Speech refers.