Constitutional Reform and Governance Bill
Lord Norton of Louth (Conservative)
My Lords, like the noble Lord, Lord Williamson of Horton, I served on the Joint Committee on the draft Constitutional Renewal Bill. The Joint Committee worked extremely hard, holding two two-hour sessions each week over a three-month period, in order to report by the end of July 2008. The energy and commitment of the committee was clearly not matched by that of the Government. Despite having considerably more resources than those of the Joint Committee, the Government took a year to respond to the committee's report and to introduce the Bill into Parliament. That was a delay for which we have received no persuasive explanation-indeed, as far as I can see, no explanation at all. When the Lord Chancellor appeared before the Constitution Committee last month, I put it to him that there had been a massive gap between the report of the Joint Committee and the introduction of the Bill. His reply was:
"There was, I agree, and I am frustrated about that. I am afraid that it is water under the bridge".
It is important that this House is not swept away in that water. What we are confronted with is not only a Bill of constitutional significance but also, as we have heard throughout today, an issue of process that is of constitutional importance. The primary task of this House is legislative scrutiny. It is our job to examine Bills in detail and to ensure that the provisions fulfil the intended purpose of those Bills. Our reputation-and, in large part, our legitimacy-rests on our capacity to fulfil that task.
Given that, what do we do with a Bill of constitutional import that is having a Second Reading only days before the likely end of the Parliament? It is a Bill that could and should have been brought before Parliament at a much earlier date, that was slow in being taken in Committee in the other place, that was loaded with new government clauses towards the end of its passage in the other place, and that was subject to time limitations both in Committee and on Report. Many important amendments that MPs, including members of the Public Administration Committee in the other place, wished to discuss were never considered.
The deficiencies with the process are all too clear, yet the Government appear not to fully appreciate this and to believe that much of the Bill can be agreed in the wash-up. This morning, the Constitution Committee received a response from the Government to its report on the Bill. The letter from the Minister, Michael Wills, is silent on the reason for the delay in introducing the Bill, adopts a completely Commons-centric approach, and makes statements such as:
"I must say that the Bill was before the Commons for seven months".
It would be more appropriate to say that the Bill languished in the Commons for seven months, with the Government showing no enthusiasm for getting it through in reasonable time to reach this House.
The Government appear to have had no qualms about letting the Bill get to this late stage, apparently on the assumption that it will go into the wash-up. The Lord Chancellor, in his evidence to the Constitution Committee, said that particular provisions would have priority in the negotiations in the wash-up. The Leader of the House of Commons has gone further, saying that if it goes into wash-up,
"it will be for the Opposition parties to negotiate with the Government so that we can get through a great deal of what was in the Bill",
"If the Bill cannot find its way through the Lords, we will make sure at the wash-up that the provisions that the public want get through".-[Hansard, Commons, 4/3/10; col. 1019.]
I invite the Minister, in replying, to put on the record that the responsibility for where the Bill has reached rests solely with the Government. Perhaps he will also tell us what provisions are demonstrably those "that the public want". By "demonstrably", I mean where there is clear empirical evidence, not some spurious assertions of the sort the Minister advanced this afternoon. Perhaps he will also put on the record that it is not, in any event, the task of either House simply to nod through what the public want. Indeed, we know that the public would not expect it. Surveys, not least that carried out by Ipsos MORI for the Constitution Unit in 2007, show that what the public want is a House of Lords that considers legislation "carefully and in detail". That is what 73 per cent of those questioned want. That is what we are being denied the opportunity to undertake-careful and detailed scrutiny.
We are being denied that opportunity not least because of the presumed convention that a Bill that completes its passage in one House and is given a Second Reading in the other is then eligible to be considered in the wash-up. The genesis of this convention is unclear and its rationale unsustainable. A convention is only such when those who are affected by it accept that it is necessary to abide by it in order to make the process work efficiently and effectively. Even if the Front Benches have been parties to it, it is not clear why the House should be bound by it. We make much of the fact that we are a self-regulating House, but on occasion we appear to abdicate that responsibility.
I advance the proposition that we should not accept that because a Bill has reached Second Reading, that makes it automatically eligible for going into the wash-up. That applies especially where the Bill is of constitutional significance, has been subject to time limitations in the other place and has had substantial provisions introduced late in its passage in the other place. The fact that the parties may agree it does not negate the principle involved. The integrity of Parliament, and certainly of this House, is at stake.
What, then, do we do? There are two options. The clearest and most sustainable in terms of principle is that the Bill does not go into wash-up or that we do not accept anything emerging from it. The other is to agree only those provisions which are either small, uncontested clauses, where no queries have been raised about their substance and drafting, or provisions which have already been considered in detail by the Joint Committee on the draft Bill or by the other place and where the need for the provision is compelling and could not be left to be implemented through a Bill in the next Parliament. If we are persuaded that some substantial provisions may be considered, then we should apply sunset clauses to those provisions.
Mitigating against any claim that the case for enactment is compelling is Clause 95. Few clauses take effect upon enactment. Eighty-one clauses will come into force on such days as Ministers may by order appoint. Mitigating against any claim that the provisions have been examined in depth are the reports of the Constitution Committee and the Delegated Powers Committee. The report of the former makes clear that core parts of the Bill, as on the Civil Service, were subject to partial scrutiny in the other place and that others were not considered at all. Both reports raise questions about the provisions of the Bill, questions that cannot be adequately addressed in the time remaining before the end of this Parliament. This Bill, as so many Members have said today, demonstrably requires further detailed consideration.
The onus rests on the Minister to justify why this Bill is only now before us and to demonstrate which provisions, if any, meet the criteria I have outlined. If he cannot do that, then I suggest that the best solution is for the two Front Benches to commit whichever party is returned at the election to reintroduce the Bill at the start of the new Parliament. Then, and only then, can we subject it to the thorough scrutiny that it requires and fulfil the fundamental role expected of us by the public.