Constitutional Convention - Motion to Take Note

Part of the debate – in the House of Lords at 11:51 am on 13th December 2018.

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Photo of Lord Norton of Louth Lord Norton of Louth Conservative 11:51 am, 13th December 2018

My Lords, I congratulate the noble Lord, Lord Foulkes, on introducing this important and topical subject. I understand why he makes the call he does, but I reach a different conclusion on establishing a convention, as the term is normally understood.

Over the past two decades, we have seen constitutional change on a scale that has not been seen for 300 years. We have seen major constitutional changes over those centuries, but they have tended to be specific measures which have had time to settle in before some other major change has come along. There were several constitutional changes in the period from 1911 to 1918, but that is the closest we have come to change comparable to that of recent years.

As the noble Lord touched upon, several measures of constitutional change were introduced by the Labour Government returned in 1997. Each was justified by its advocates on its individual merits. There was no attempt to locate these measures within an intellectually coherent approach to constitutional change; they were essentially disparate and discrete measures. In 2002, when I introduced a debate on constitutional change in your Lordships’ House, the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, conceded that the Government had no overarching theory. The same applies to measures introduced under the coalition Government. That was entirely predictable, given that the coalition was formed of two parties which adopt diametrically opposed views of the constitution. In this Parliament, we have seen further and fundamental change.

Throughout this period, there has been no attempt to look holistically at our constitution, at how these changes affect it and at how they relate to one another. There is no clear view of the type of constitution deemed most appropriate for the United Kingdom. Successive Governments have not been able to identify their constitutional destination.

I appreciate that this analysis leads some to argue the case for a constitutional convention. However, as I shall argue, that is to get ahead of ourselves. As Professor Robert Hazell, to whom reference has already been made, has noted, a convention may be established for one or more reasons. These include—again as has been mentioned—to build a cross-party support for further constitutional reform; to harness expert opinion to chart a way forward; and to develop a more coherent overall reform package. He lists others, but they all have a common thread: namely, to come up with proposals, essentially to generate a package of constitutional reforms.

That omits a necessary stage. We are all familiar with the phrase, “If I was going there, I would not start from here”. A convention would focus on the destination—that is, where to go. My argument is that we need to step back and make sense of where we are. I have argued that we should be engaging in an exercise of constitutional cartography. For that reason, I have made the case not for a constitutional convention but for what I have termed a constitutional convocation.

Having a body to make sense of where we are has a number of advantages over a convention. It avoids—or, at least, does not raise to the same degree—issues of legitimacy that may attach to a body set up to come up with a new constitution for the United Kingdom. One can utilise expertise in a way—or at least to an extent—that may not be possible with a convention. It can also ensure that we understand where we are, rather than be under pressure to come up with some constitutional blueprint that may be either or both overly ambitious or politically contentious. Given what has happened in recent years, there may not be a popular appetite for more fundamental change. Indeed, current events reinforce the case for standing back and making sense of where we are.

If one looks at the period of our membership of the European Community and then the European Union, we regularly agreed changes but, in constitutional terms, we were always playing catch-up. We never stood back to establish clearly how our membership fitted with our constitution. Had we done so, we may not be in the situation we find ourselves in today.

Therefore there are problems with a constitutional convention. It is a problem if it seeks to produce prematurely a constitution for the United Kingdom. It is also a problem if, like the Kilbrandon commission, it ends up addressing only part of the constitution. We need to look at our constitution as a whole. That requires reflection, not rushing ahead of ourselves with a grand scheme. Hence my case for a body to put the change that has occurred within a clear and coherent constitutional framework.

Sir Sidney Low, in his short book, The British Constitution, published in 1928, wrote:

“In England we often do a thing first and then discover that we have done it”.

Let us first of all stand back and make sense of what we have done.