Constitutional Reform Bill [HL]

Part of the debate – in the House of Lords at 8:33 pm on 8th March 2004.

Alert me about debates like this

Photo of The Bishop of Chelmsford The Bishop of Chelmsford Bishop 8:33 pm, 8th March 2004

My Lords, my predecessor when I was Bishop of Guildford was Michael Adie. He had at one time been chaplain to the Archbishop of Canterbury, Geoffrey Fisher. The story is told that it fell to his lot as chaplain to go to the Archbishop and suggest that it was time he retired, which he did. When Geoffrey Fisher retired, so the story goes, Harold Macmillan as Prime Minister rang up Michael Ramsey the very next day and offered him the job.

Those stories led to the reforming of the process of appointing bishops in the Church of England. In the end, after work with Jim Callaghan when he was Prime Minister, the Crown Appointments Commission came into being and in the past two or three years that system has been further reflected on and has undergone yet further reforms. So it is possible for us to engage with change within the shape of our constitution.

Earlier this afternoon the noble Baroness, Lady Jay, made the point that others have made—that we are talking about the separation of powers. She asked, if the judges can sit in this House, why not senior people in the medical profession, and so on? Those comments misunderstand the constitution.

Paragraph 44 of the Explanatory Notes on the Bill also misunderstands the constitution. It says,

"the Bill seeks to make a distinct constitutional separation between the legislature and the judiciary".

Parliament is not just the legislature. Under the Crown, it is the institution, on behalf of the people, that calls government to account—the executive who all have to be Members of Parliament. Parliament is responsible for democratic and public debate, for ensuring good legislation on behalf of the people of the country and is, as the highest court of the land, called the high court of Parliament, ultimately responsible for the rule of law and the practice of judicial life in our country. That is our constitution. In Parliament we hold together those three bases of our life under the Crown. That is our history.

That does not necessarily mean that we carry on as we have always done and it does not necessarily mean that we have to leave the judicial functions of the House of Lords as they have always been. But it does mean that we have a duty to ensure that any changes and developments we make hold faith with our constitutional history. If we are to change that and move radically in a new direction to a system of separation of powers, that needs proper and independent reflection in its own right. From a variety of points of view we all recognise that we entered this issue in an unhappy way last June, and in a way that opened up constitutional issues that needed to be properly considered in their own right. None of that necessarily holds up reform of the system.

The second matter that I wish to raise arises from the events of 12 June last year. We have talked about whether they have irreversibly changed things. If the Government were able to act in that way in the middle of a reshuffle, what is to prevent governments from doing that again? Is that not the problem with the position of Secretary of State for Constitutional Affairs in the Government? What happens if, by some extraordinary change of political fortune, the Members opposite end up on this side of the Chamber, the Government of the day decide that they have no major programme of constitutional change in their agenda and do not need a senior Minister for such matters? Will we have a member of the Government called "Home Secretary and Secretary of State for Constitutional Affairs"? Will that properly deal with the necessary relationship that there must be between the judicial function of our constitution and government, and the judicial function of our constitution and Parliament?

We are bound to ask, if we agree with the remarks of the noble Lord, Lord Lester, and agree that whoever takes on that role has to be highly qualified in law, what is wrong with the Lord Chancellor continuing to do that? That is at the heart of the debate. We seem to have a historical constitutional position which, properly and with genius, combines both the political side of government and a constitutional position that is seen to have the independence necessary to perform that role in relation to the judiciary. Why are we seeking to change that position? I do not think that we have had an adequate answer to that issue.

The last thing I want to say is this: do we not have a duty in Parliament as a whole to preserve jealously the powers of Parliament? Is it right that we should be considering hiving off functions and powers which historically and properly our constitution have vested in Parliament? Reform them? Yes. Evolve them? Yes. Change them? Yes. But have we not a responsibility jealously to guard those powers and to ensure that we hand on to the next generation a constitution which is intact? From my perspective in this debate, we have not sufficiently done the thinking nor the work on the principle underlying these issues to be sure that this legislation will achieve all the Government want of it.