My Lords, as my noble friend Lord Foulkes has said, constitutional challenges abound. He said that this was not to be a debate on Brexit, but Brexit is a giant constitutional issue. He would have his constitutional convention address issues of democratic accountability, but we Brexiters seek to escape the democratic deficit of the EU. My noble friend really should not be such an ardent remainer; I think he should reconsider his position and perhaps see the virtues of leaving after all.
In the process of leaving, facilitated—though that hardly seems the right word—by a referendum, we have seen the nations of the UK split asunder and we are seeing Parliament floundering as it seeks to acquit itself of its responsibilities, floundering perhaps particularly because there is a conflict between two democratic principles: the principle of direct democracy, as expressed in the referendum; and the principle of indirect democracy, which is the customary mode in our parliamentary government.
That is one colossal issue, but other great issues arise out of the disproportionate centralisation of power and economic strength in London. We have had the development of the move for Scottish independence and, as my noble friend described, the uncertain and fitful progress of devolution in England. Even more important is the atrophying of local government, which has long seemed a profoundly important problem because, unless we have vigorous local government, our democratic culture withers at its roots.
We see the crisis of our justice system brought about by wanton austerity. I also consider to be a constitutional issue the mismatch between the needs of the media and the needs of our democracy, the trivialisation of public debate, the decline of the local press and the disintegration and—arguably—subversion of our political culture by social media. These are hugely important and hugely difficult issues. Is the right way to address them by means of a UK-wide constitutional convention?
If it were to be a convention of academics and think tanks, perhaps with the participation of Select Committees in both Houses, that would be very valuable. They would articulate the issues and help to educate the politicians who have to take decisions.
The convention as proposed is really a variant of a royal commission. Of course, there was the Kilbrandon commission, which sat for four years between 1969 and 1973. It produced 16 volumes of evidence and 10 research papers. I read an article in the Liverpool Law Review of October 2017, which stated:
“Largely forgotten is the work of the Kilbrandon Commission, established to consider the allocation of executive and legislative power within the UK”.
I am not persuaded that a convention would necessarily be an improvement on a royal commission, and it is my hope that the Labour Party would not repeat its manifesto pledge to set up such a convention. It would be unwise for any Government to commit themselves to a blueprint for wholesale constitutional reform. The clever and enthusiastic members of the convention would certainly get it wrong. They would be unable to foresee the developments that lay ahead.
My noble friend takes the Scottish convention as an encouraging precedent, and undoubtedly it did useful work. It is a good thing that we have a Scottish Parliament but, as his national poet wrote, the best-laid plans “Gang aft agley”. It was forecast by an eminent Labour politician that devolution would kill nationalism stone dead, but nationalism is a long time petrifying. It was not supposed to work out like this, but the SNP secured a majority in the Scottish Parliament. The independence referendum took place in 2014, generating bitter emotions, and the possibility of a second independence referendum hangs like a sword of Damocles over Scottish politics and the union.
If it was difficult in Scotland, a small country where everybody knows everybody else and where the issues are relatively contained, how much more difficult would it be to get it right if we held a constitutional convention on a UK-wide basis? The scale and the complexity of the problems would be impossible to wrestle with.
Another fear that I have is that it would be almost inevitable that such a convention would propose a written constitution. If you have had a revolution or devastation by total war, it makes sense to start again in year zero, as it were. But I devoutly hope that that is not our case, and we see that written constitutions do not always produce the satisfaction that their authors hope. The European Union was ambitious to have a written constitution, but that was turned down by referendums in France and the Netherlands. None the less, a written constitution was sneaked back in in the treaty of Lisbon. I see no evidence that the existence of a written quasi-constitution has better enabled the European Union to address itself to the great intractable problems of immigration or the malfunctioning of the euro.
In this matter, I am a Burkeian. I believe that constitutional change should be organic. That wise Whig, Lord Holland, when asked by the Neapolitan revolutionaries whether he would be so good as to equip them with a draft constitution, responded, “You might as well ask me to build you a tree”. The way to approach constitutional change is incremental, by reform that is responsive to political events and pressures and that moves forward selectively and is expedient. We should develop our constitution by building on centuries of experience, by testing ideas and the structures of power, and by taking account of changes in public engagement, the varying perceptions of people across the country and their developing aspirations. Cumulatively, we should gain consent.
Preoccupation with constitutional reform is a displacement activity. Re-engineering the constitution is no substitute for good government, in which political leaders address the problems that people really care about and which produces shared prosperity and optimism about the future of the country.