A scandalous way to force through constitutional reform
Few British politicians are interested in the constitution. They are much more concerned with how to achieve, or retain, power, and what to do with it, than with imposing limits on government.
The Constitutional Reform and Governance Bill, which received its second reading in the House of Lords yesterday, confirms that this Government does not understand constitutional norms. Parliament should reject any attempt to force any parts of this Bill through without proper scrutiny.
The subject matter of the Bill is important. It contains provisions that would amend the law concerning the Civil Service, the ratification of treaties, referendums, aspects of the membership of the House of Lords (in particular, expulsion, suspension and resignation of members), demonstrations in the vicinity of Parliament and amendments to the Parliamentary Standards Act 2009.
Almost as important is what the Bill does not contain: an earlier draft Bill included provisions for reform of the constitutional role of the Attorney-General and a White Paper had also addressed reform of a number of other matters of constitutional concern, including the exercise of war powers.
Because of the imminence of a general election, there is no time to give the Bill the intensive scrutiny from which legislation normally benefits during the committee stage and then the report stage in the House of Lords. Such scrutiny is essential to ensure that the legislation produced by Parliament is of high quality, especially when Bills invariably reach the Lords, as in this case, with large chunks having received no debate at all in the Commons.
It is the Government’s fault that the Bill arrived in the Lords with so little time left before the dissolution of Parliament. A Green Paper, The Governance of Britain, was published in July 2007. A White Paper and a draft Constitutional Renewal Bill appeared in March 2008. A joint committee of the Commons and Lords completed pre-legislative scrutiny of that Bill in July 2008. But another year elapsed before the present Bill was published in July last year.
The committee stage in the House of Commons lasted from last November until February, in part because the Government wanted to add late amendments, in particular on reform of referendums.
Last week the Constitution Committee of the House of Lords (of which I am a member) published a report concluding that it was “inexcusable” that by reason of the delays for which the Government is responsible, Parliament is to be “denied the opportunity of subjecting this important measure of constitutional reform to the full scrutiny which it deserves”.
Yet ministers have suggested recently that some provisions of the Bill may nevertheless be enacted through the “wash-up” process that occurs during the final days of a Parliament. The “usual channels” — that euphemism for a deal done in secret by the business managers of the main parties — reach agreement on which parts of pending Bills they will agree to endorse.
However desirable the reforms contained in particular parts of the Bill, it is unacceptable that any of the provisions should be enacted without proper parliamentary debate of amendments relating to their terms and effects. As the Constitution Committee concluded in its report, it is “extraordinary that it could be contemplated that matters of such fundamental constitutional importance should be denied the full parliamentary deliberation which they deserve”.
In his study of the work of the House of Lords from 1884-1914, Making Aristocracy Work, Andrew (now Lord) Adonis, referred to a memorandum written in 1904 by the Earl of Selborne to Cabinet colleagues complaining that proceedings at the end of every session of Parliament jeopardised the reputation of the Upper House. “The House of Commons sends up in the closing hours of the session a batch of important Bills that the House of Lords has to dispose of post-haste. As a consequence, the proceedings are undignified and the work is badly done. It is not an abuse of language to apply the words ‘farce’ and ‘scandal’ to what takes place.”
Only a washed-out government would contemplate the use of a wash-up procedure in relation to a constitutional reform Bill. To use that procedure for such a Bill would take Parliament back to the abuses of the early 20th century, it would deserve the same description — “farce” and “scandal” — that the Earl of Selborne applied in 1904, and it would be the negation of the high standards of scrutiny, transparency and accountability that parliamentary procedures must attain if they are to secure the confidence of the people of this country.
The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords
