'No way to undertake the task of constitutional reform'

Lord Norton

The Easter recess dates have been announced and we now seem to be working to the following timetable.  The House rises for the Easter recess on Tuesday 30 March.   It returns on Tuesday 6 April, when it is assumed the election will be announced, with ‘wash-up’ taking place from then until Thursday 8 April.  Parliament will then rise, with  dissolution taking place on Monday 12 April. 

Given this timetable, it makes it all the more remarkable that the House is debating Second Reading of the Constitutional Reform and Governance Bill on Wednesday.  This a major Bill.  It has 95 clauses and 15 schedules, many added at late stages in the Commons.  It had 56 clauses and 9 schedules when it was introduced.  Many provisions were not debated or not fully debated in the Commons.  Indeed, the Public Administration Committee in the Commons sent the Constitution Committee in the Lords copies of amendments it would have liked to have seen debated in the Commons, but which there was no opportunity to debate “thanks to guillotines imposed by the Government at both Committee and Report stages”.  

The problem is that we are not going to have the opportunity to debate them either.  Second Reading looks like being the only stage reached before the ‘wash-up’.  This puts the Lords between a rock and a hard place.  Not having the opportunity to consider in detail the provisions of a constitutional measure denies the House the opportunity to fulfil its essential role of scrutinising legislation.  At the same time, there may be provisions of the Bill that deserve enactment as soon as possible.    I shall be adddressing this dilemma on Wednesday.

The Constitution Committee has reported on the Bill and in discussing process it has not  pulled its punches.  It has made clear that the Bill has been delayed by Government at different points.  The Joint Committee on the Constitutional Renewal Bill reported on the draft Bill in July 2008.  It was a full year before the Government introduced the Bill to Parliament.  No satisfactory explanation has been offered by Government for the delay. 

The concluding paragraphs of the Constitution Committee report are worth recording:

’46.  In any event, we consider it to be extraordinary that it could be contemplated that matters of such fundamental constitutional importance as, for example, placing the civil service on a statutory footing should be agreed in the “wash-up” and be denied the full parliamentary deliberation which they deserve.

47. This is no way to undertake the task of constitutional reform.’

24 comments for “'No way to undertake the task of constitutional reform'

  1. Dave H
    22/03/2010 at 3:55 pm

    When it comes to the wash-up, what text is actually used as the starting point? Is it the most up-to-date version of the Bill or something else?

    If it’s the most up-to-date version, then is it possible for the Lords to amend it to trim most of it down to whatever has been scrutinised so that the rest is not available for consideration in the wash-up? Or can’t you drop clauses before the committee stage?

    I would rather see the whole thing dropped and started again with proper time than end up with a hasty mess that we’ll doubtless get if it does go through to the wash-up. I’d also suggest putting in a clause to give the Lords power to reject anything the Commons has not properly discussed in committee without it becoming subject to the Parliament Act, so that inappropriate use of the guillotine could result in a Bill taking even longer if there has not been proper debate. It would be sort of along the lines of “we’re not going to discuss this until you have”.

  2. 22/03/2010 at 3:56 pm

    Surely, if the government will not allow sufficient time for scrutiny, the only option is to block the bill’s passage. If some parts are useful, could the government could break the bill up into separate clauses and try for unanimity votes, as they did with the Wright Committee’s Bill? Anything blocked could then be debated next time around.


  3. Croft
    22/03/2010 at 4:14 pm

    I fail to see the dilemma. Can there really be any matter so vital that they couldn’t wait the earliest bill in the next parliament? I find the notion that importance or urgency is an argument against scrutiny a puzzling and intellectually contradictory notion. If things are important in symbolism and/or consequences then they need scrutiny more not less.

    • Dave H
      22/03/2010 at 5:13 pm

      It all depends on what the Commons gets to work with come the wash-up. Anything that both sides agree on in the Commons ends up in law, whether the Lords has had chance to scrutinise it or not. Hence my question about whether it can be slimmed down to leave very little (or nothing) to consider by the Lords before the wash-up.

      • Croft
        23/03/2010 at 4:06 pm

        While the practical point may be true the constitutional point is not. All bills in the wash up can be voted by the lords.

    • Gareth Howell
      23/03/2010 at 12:35 pm

      “Can there really be any matter so vital that they couldn’t wait the earliest bill in the next parliament?”

      No; none.

  4. Carl.H
    22/03/2010 at 5:46 pm

    Having found that the wash-up is virtually the same method as emergency legislation I am deeply disturbed. Not only is it not scrutinised correctly the way all legislation is meant but most Emergency Legislation recently has later been found to be wanting which means even that wasn`t formulated correctly to a good enough degree.

    The Wash-up should not and cannot be used for meaningful legislation, it will not undergo the desired scrutiny that Parliament itself was setup to give it.

    In this term there are some major Bills heading for the wash-up, none could be called inconsequential, all seeming quite complex and delicate of nature, not to be rushed.

    If these Bills/policies are good and correct then surely that party will be returned to Government and can then submit them. If these Bills/Policies are not good and are being rushed through there is all the more reason to block them.

    We cannot have a Constitutional Reform Bill whilst in the dying days of Government more and more debacles concerning how Parliament performs it`s functions are happening. Whilst emergencies are happening we deal with those, once over then we can debrief and take measures to assure they do not re-occur.

    I urge Parliament as a whole to not perform the Wash-up in this instance. The system is in crisis, the people having “no confidence” in Parliament at this time. There is no time to correctly address all issues that make Parliament dysfunctional, I ask if normal procedures, scrutiny, cannot be followed that no Emergency/Wash-Up legislation be passed in a time of Parliamentary Crisis.

    The expenses crisis and now the lobbying crisis suggests that parts of Parliament may NOT be legitimate. No one could say 100% that illegitimacy may or may not have taken part of these Bills, until inquiry has taken place. There is no place at the present time for quick law.

  5. Carl.H
    22/03/2010 at 6:23 pm

    Rumours of 160+ MP`s standing down

    4+ Members of Parliament to stand charged with alleged fraud.

    Lord Adonis and the Secretary of State Lord Mandelson named in possible bribery allegations.

    Ex-Ministers possible involvement in direct bribery allegations.

    It is clear that Parliament itself has no confidence itself at present, indeed bloggers here have stated outright their wish for this term to be over. This deep level of dissatisfaction from both the public and Parliament can be translated to mean there is no confidence either inside or outside Parliament.

    Dissolution asap is the only answer until a Government with the confidence of the people can be elected.

  6. Matt
    22/03/2010 at 10:44 pm

    “At the same time, there may be provisions of the Bill that deserve enactment as soon as possible.”

    Said provisions can wait until after the election.

    “No satisfactory explanation has been offered by Government for the delay.”

    How painfully naïve.

    • Twm O'r Nant
      23/03/2010 at 8:14 am

      “Can there really be any matter so vital that they couldn’t wait the earliest bill in the next parliament? ”


  7. Carl.H
    23/03/2010 at 10:23 am

    This morning brings news of 400+ regulation rule breakings by MP`s regarding foreign aided trips abroad.

    It is quite clear in light of recent events that Parliament is unable to self regulate. That said, then new rules, the Constitutional Reform and Governance Bill, are clearly in the wrong hands.

    How much more will Parliament allow before calling a halt ? In the 60`s and 70`s Unions had strength to pull down a Government, no longer is that strength held or wanted but the people and it appears Parliament itself wants and end to this term of office and now.

    The longer this Government remains it seems the more disrepute Parliament attains. Enough is enough.

  8. 23/03/2010 at 1:54 pm

    It seems to me the wash-up procedure allows party consensus to be formed on things both sides would like to see in law but don’t want to go through the potentially bruising partisan debate post election. Unfortunately in the case of the Digital Economy Bill the views of the public aren’t getting a look in.

  9. Mordecai
    23/03/2010 at 4:18 pm

    The “Wash-up” is not some process unfortunately and unexpectedly thrust on parliament; it is the direct consequence of the way the Government has managed its legislative programme. Certainly no part of the Constitutional Reform Bill should be enacted until it has received proper debate in the more reflective chamber. Parliamentarians need to take their responsibility as legislators seriously. Their failure to do so is likley to reach its apotheosis in the “Wash-up”. This is a far more deep-seated scandal than the expenses or lobbying scandals (very bad as those are).

  10. 23/03/2010 at 7:39 pm

    Ditch the whole thing.

    Wholly unconnected question: when and why is a stenographer required? I noted the use of one in the Chilcot inquiry leading to the inevitable request for the respondent to slow down their answers (the same can be seen in courts). Two years ago, Hansard ‘recorded’ Ed Balls saying “So weak” rather than the “So what?” most of us heard at the time. Do Hansard rely on a stenographer?

  11. Carl.H
    24/03/2010 at 1:03 am

    So what is going in the wash-up ?

    Constitutional Reform ? I would think most would and indeed should be against this.

    Digital Economy Bill ? Well the forfeiture of bandwidth and then perhaps Internet connection is against the British Bill of Rights : That all Grants and Promises of Fines and Forfeitures of particular persons before Conviction are illegall and void.

    The promised free care ? I think Baroness Murphy, whom I would take as having some expertise, states this shouldn`t go through as it is.

    Any free thinking person would see that should any of this go through the wash-up it would be an injustice. Our law is based on what is reasonable, on what the man in the street would say or do in a given situation To let any of these bills go through in the wash-up would not be reasonable, it would be injust.

    The wash-up follows the protocol of emergency legislation, it is about law by lawyers and whips. It is not designed for such complex matters that require a great deal more scrutiny.

    When the 1689 Bill of rights was written, it was done with a lot of thought about the freedoms and Justice of this land for ordinary men and women. Those freedoms, those rights are eroded by something as obnoxious as the Wash-up, they`re not just words on Bills they`re peoples lives and those people deserve more discretion, more thought and more scrutiny of those Bills so they are fair and just.

    There has been little dignity and honour in being a member of parliament of late. It`s time to say no we won`t be rushed, the British people deserve better.

    • Dave H
      24/03/2010 at 9:53 am

      This goes back to my earlier suggestion of a sunset clause in any wash-up legislation to force it to be reconsidered within the lifetime of the next Parliament, and ideally within the first session or two (although for this next one, lifetime could be shorter).

      Seeing as it’s a Bill to reform the way things work, perhaps someone could attempt to amend it to require such a clause in these circumstances?

  12. Sue
    24/03/2010 at 4:34 pm

    “Seeing as it’s a Bill to reform the way things work, perhaps someone could attempt to amend it to require such a clause in these circumstances?”

    That would be the common sense approach, unfortunately common sense no longer prevails and it’s more about dumbing down and controlling the populus, hence the rush through of so many important Bills that have very dire consequences if allowed through in their entirety or partially.

  13. Carl.H
    24/03/2010 at 8:48 pm

    My Noble Lords is was heartening to hear such common sense in the House regards this Bill which I am still at present watching on the BBC. The restitance is stirring in protection of the rights of Parliament and the Nation as a whole.

    This must be stood firm on, not out of selfish acts by my Noble Lords but simply because to allow this through the wash-up would be a travesty. I ask also that if the rumoured Jack Straw bill should appear for a 300 elected senate you also resist. The HoL should not become a political extension of the Commons, the expertise and wisdom would be lost to smart politicians if Mr Straws ideas were to come about.

    Any constitutional reform needs lengthy debate especially as it is of concern to those who put the bill and those who vote on it.

    My Noble Lords Parliament does need reform as has been repeated for many years but a rushed bill at the end of term via the wash-up is not the correct way.

    I ask my Lords not to buckle under whatever pressures may appear, this bill is untimately not about you but about me and the British Nation as a whole. I thank the Noble Lords for their ressistance thus far and hope for their continued support on this matter.

  14. Carl.H
    24/03/2010 at 9:49 pm

    A very firm, absolutely correct speech by the Noble Lord Norton of Louth. I hope my Lord that the House heeds your words.

    I thank the Noble Lord for his speech which certainly represents my feelings.

    • lordnorton
      25/03/2010 at 5:46 pm

      Carl. H: Many thanks.

  15. Carl.H
    25/03/2010 at 4:30 pm

    My Lord, I`d like if I may to point out a serious error in the way the House thinks.

    That error is that the public at large are crying out for changes to the upper House. It is untrue in the most part because the public really do not understand your part in Parliament. We have seen here and I include myself, that most people who come here at first have no clue as to the makeup or working of the House.

    The cry for change is being pushed onto the upper House from the Commons which is where the public wish changes. The despicable behaviour of some MP`s, and yes one or two Lords members, has made the public sit up and take notice care of the media but there is no great expectation of change. The one change everyone does want is the stopping of the alleged corruption and a more transparent system.

    My Lords you are being led and deliberately so by the other place into self analysis and unlike the other place you have a good conscience so deem yourselves at fault. Yes reform is needed in small ways, a limit to numbers a clear and concise way of reimbursement with transparency but do not be led by the other place into major changes that will suit them better than this House.

    My Lords the composition of Parliament was clearly and intricately thought through, to hand over perhaps the next 500 years plus of Bills on the whim of one Government will be a major error. To concede to what may seem popular cries of a lynch mob will be unjust and not in the best interests of the Nation, of my children and my childrens children.

    • 25/03/2010 at 5:15 pm

      I agree with Carl H. The idea that people deeply desire changes in the Second Chamber is erroneous. Most people do not even understand how the chamber works.

      The only thing my non-political minded friends ever worry about is the degree of party influence over membership, something that could be easily remedied with a stronger House Appointments Committee.


  16. lordnorton
    25/03/2010 at 5:51 pm

    Many thanks to everyone who has contributed to this thread. Your comments have proved very helpful and certainly helped reinforce me in developing the points I made in the Second Reading. I hope you feel the speech does justice to your comments. I’ll do a separate post on the debate. Thanks to Carl for his observations on the speech.

    Carl. H and governing principles: I very much take the view that there is much we can to do to strengthen the House in fulfilling its functions, but that this should constitute change from within to existing practices and procedures. As I touched upon in my speech, we know that the public want a House of Lords that engages in careful and detailed scrutiny of legislation – and that they rank this far more highly than they do electing the second chamber. Electing a second chamber would serve to replicate the first without producing any obvious added value.

  17. Senex
    25/03/2010 at 6:27 pm

    Below some video highlights from the blogs owners – apologies if anybody missed; if you have time its worth watching all debates in their entirety. 10hrs?

    Lord Bach: 12: 56 – Size of House, Resignations
    Baroness D’Souza: 49:59 – Size of House, Resignations
    Lord Norton: 1:32.57 – Duty of House
    Lord Tyler: 2:12.40 – Overview of Bill

    Features Lord Norton – Informative, worth watching in entirety.
    Lords Constitution Committee – Work of Lords Appointments Commission

    Note to BBC/Hansard: these recordings should feature date and video counter as small captions. How are the public to know where one ends and the other starts?

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