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Constitutional Reform


17 January 2005
John Gummer's speech

Mr. John Gummer (Suffolk, Coastal) (Con): When the Government propose a major constitutional change, they must first explain that the problem is real and that it is worth taking such trouble over. The Minister is always charming and careful when he puts the case to the House, but he found it difficult to bring together two contradictory concepts. He wanted to assure us that everything has been okay for some time, that the judicial system is fair and that the judicial system has not been affected by party political considerations. Although such an example would have been to some extent anomalous, he could not point to any particular uncertainty in the law because of political involvement.

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The Minister went on to say that the structure has caused discomfort and a lack of entire happiness for many years and that it needs radical modernisation. I am sure that one could make the case for tidying up most things, but we should be concerned with priorities and my worry is that the matter is not a priority. Given that the judicial system is right in principle, it is not the issue to go for, given the large number of other things that I can recommend the Minister to do, although, in fact, he himself would not have to do most of them. I would like a considerable extension of environmental policy to do something about climate change rather than talking about it. I can suggest a range of real priorities—we could, for example, improve the standard of our built environment, given that we are building so many houses.
The Minister has not established the fundamental basis for the Bill or explained the real reason for it. He said that the matter is difficult and that people misunderstand it. He said that, if one were to introduce a new constitution, it would be jolly difficult to argue that it should be the same as our system, but he would also find it difficult to argue for a constitutional monarchy or an established Church. I have no interest in those two subjects and no interest in the Bill, because I am not a lawyer—I have never wanted to be a lawyer and think that there are too many lawyers in the House. I am perfectly happy to discuss the matter and am not arguing on behalf of a vested interest.
It is peculiar to argue that everything has been okay, but we must have radical change because we cannot export our constitution to the rest of the world. The Minister has missed the fundamental nature of our constitution—that it is evolutionary, that it produces over time a series of checks and balances and that it is not written because it largely relies on conventions that people continue to observe.
Mr. Garnier: I do not want to interrupt the flow of my right hon. Friend's speech with an indelicate intervention, but legal services are a successful invisible export from this country and overseas litigants are encouraged to come to our British courts in London to litigate their disputes. There is no guarantee that the great kerfuffle caused by the Government will enhance that invisible export one jot.
Mr. Gummer: I am not expert on the size of those exports or their invisibility, but the present situation does not seem to put off people from abroad who ask for British law to be the basis of the interpretation of contracts and the like; indeed, the system appears to work quite well. On the question of practicalities, the people whom the Minister prayed in aid—the people from far beyond the seas who supposedly would not understand it—have not found it difficult to see that the system works. Indeed, only last week I perused a contract signed by a previous chairman of the company on behalf of somebody whom I employed. Although the company was French, the contract was to be understood in the context of English law and any argument about it was to be heard in the English courts. As the French today—leave alone Montesquieu—find it easy to understand that the system works pretty well, it is reasonable to think that it is not too bad. It may not be perfect—I am sure that the hon. and learned Member

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for Redcar (Vera Baird) will mention several aspects that she would like to improve—but that is true of most of life. The Minister has not explained why this change, with all its ramifications, is a sufficiently necessary or successful alternative to be considered by this House.
The Minister has not established the first point—that there is a real problem that needs immediate and fundamental resolution in this House. The second point that he must establish is that, having identified such a problem, he has made a considered response. Here, I very much sympathise with him. He had obviously thought carefully about how to deal with the fundamental difficulty that the issue was not introduced in the most felicitous of manners. I am sure that deep in his heart he said to himself, "I wouldn't have done it this way myself. I wouldn't have suddenly announced something that I had not talked to anybody about, not thought about much, and did not know much about, and then found myself in a mess so that my best friend had to go off and explain to people that what he had said was not quite what he had meant." This started off in a very embarrassing way—"back of an envelope" would be putting it politely.
Perhaps that would not matter so much were not this part of a pattern. Lord Butler restrained himself for many months before making his recent comments about the nature of this Government's approach to institutions of state. He argued, as an independent voice who was at the heart of Government, that this Government make decisions on the sofa. Very often, they do not act properly and sensibly by listening to people, finding out about the various views, and trying to use the institutions of Government better to serve the people, but by changing the institutions of Government ad hominem.
Let me give two examples that parallel what we are discussing. We have an Office of the Deputy Prime Minister, as we previously had the Department of the Environment, Transport and the Regions, that is based not on making Government more efficient or effective, but on providing what was thought to be a suitable job for the Deputy Prime Minister. His first Department did not provide him with a suitable job because he mucked it up considerably, so the Government created another Department based upon the same principle.
Perhaps I would not mind that happening on one occasion, but I was very upset when the Government decided to abolish what everybody had seen as the best and most powerful Environment Department of either party or of any European country. They took it away from planning and local government, where it had the power to act, and shoved it in with the Department for Environment, Food and Rural Affairs, as though the environment were something to do with rural development and woolly animals. It is not surprising that since then the environment has had no influence on any of the Government's decisions. When they introduced a planning Bill, the Minister responsible for the environment was never consulted.
Mr. Hogg: I suggest to my right hon. Friend that there is another ad hominem change in which we might both have an interest. Following the foot and mouth debacle,

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the Ministry of Agriculture, Fisheries and Food was destroyed and responsibility for agricultural matters was pushed right down the pecking order.
Mr. Gummer: My right hon. and learned Friend has been an Agriculture Minister. The Secretary of State who runs DEFRA has done a remarkably good job with the tools that she was given. The Department was created to give her a sufficiency of power to make up for the fact that she was going to be moved to make space for the Foreign Secretary. That was done over lunch—it was not back of an envelope, but back of a menu.
My point, Mr. Deputy Speaker—lest you should be hovering in your seat, about to suggest that I must concentrate on the Bill—is simply this: one does not arrive at good institutional solutions by making suitable packages for one's friends, but by doing the job properly and allowing the Government to function. That is why this issue is so serious. This Government are often characterised by saying the right thing and wanting to do the right thing, but very rarely achieving it. They are a Government of words, not action, and they have shown throughout that they cannot make the Government system work.
In saying that, I am citing the Prime Minister. After the first period of Labour Government, he admitted, "When we started we thought that when we said something, it would happen. Then we found that it didn't happen, so we would have to make it happen." Four years later, he still has not made it happen. The Government still do not deliver, even in areas where I support them. I support most of their aims on the environment, but I can no longer pretend that they have delivered any of them. Now, because the European Union has pointed out that we have not brought down our emissions as we promised, they are going to sue the EU to prevent it from capping those emissions.
In this case, the Government do not say, "There is a problem, we will prove that it is there and provide the institutional solution", but, "We don't really have a problem, there isn't really much to do, so we will make a fundamental change, but we can't prove to you that it will work in practice." The Minister did not explain how it would work. Indeed, he was at his weakest when he tried to argue that he could not do so because the other House had not made its decisions about whom it was going to call what to do which, and that there were problems about what would happen if the Prime Minister appointed as Lord Chancellor someone who did not sit in the House of Lords or, if he did appoint someone who sat in the House of Lords, whether he might chair its proceedings. As the Bill started in the House of Lords, it might have been helpful to have had answers to such questions.
We do not have those answers because the Minister started off on the wrong foot. The Bill did not come forth as the result of proper discussion and the serious involvement of all the appropriate parties, but because somebody wanted to shift people around on the board and make Cabinet changes without thinking about the results. The Minister may shake his head, but no one but he believes that we are here because of logical Government decision making. We are here because the Prime Minister made a mistake and had to cover it up by producing a Bill that would otherwise not have been introduced. I can imagine that, at some time, the

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Government might have believed that the Bill was a convenient measure to introduce when they did not want to present anything too controversial with the public to make up for the Hunting Bill, but that is not the reason for our debating it now. We are debating it now because the Prime Minister shot from the hip and found that he had shot his fox.
Mr. Leslie: I would understand if the right hon. Gentleman disagreed with the proposals, but it does him no credit to belittle the logic and the rationale that I believe that I presented to justify a significant change in our constitution. Let us consider, for example, his point that the Lord Chancellor should be a lawyer or a peer. Does he claim that he is not sufficiently capable of undertaking that ministerial post and that he is somehow not qualified or capable of being appointed to it in future?
Mr. Gummer: It is not among my ambitions. However, if the Bill had been approached by trying to find a consensus for change rather than pre-empting it, it would have been more logical and not open to the specific worries that now beset the Under-Secretary. I do not believe that I belittled his arguments. He is here, although not a lawyer, as an advocate. We know why he is here—he has been presented with a Bill and he has to do the best he can with it. In general, with his normal charm, he has done a great deal of good, but he cannot get away from the problem.
The problem is that the Bill exists not because of a concerted and sensible approach to the constitution, but because the Prime Minister made a bodge-up. To try to overcome that, it was thought better to try to produce something that might at least stand up, by which time he was in no position to gain a commonality of view. A considered response is crucial on constitutional matters. It would not matter if we were discussing a less important subject, but it matters not to have got a considered consensual response on a question that lies at the heart of the relationship between the powers of Government, the House of Commons, the House of Lords and the judiciary.
Now that we are here we must ask for the third point that is necessary for good legislation. We should demand proper scrutiny. If the problem has not been properly adumbrated and the response is far from considered, the House should demand at least proper scrutiny. I should like the Under-Secretary to reflect on the way in which he answered some of the questions that were put to him. I believe that future generations will speak harshly of the way in which the current generation has damaged the nature of Parliament.
The guillotine, without debate, that is compulsory for every Bill is a fundamental constitutional outrage. It means that the Government not only control the agenda, but decide the length of time that they believe should be devoted to any aspect of a Bill. As we witnessed earlier, the Government also decide whether a matter should be debated on the Floor of the House or Upstairs. The Government, with a majority, do all those things irrespective of any longstanding convention of the House. We heard from the Speaker that there was no position from which to defend the rights of Back Benchers because the debate is subject to a vote and not to his prerogative.

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Given that the Government have started on the wrong foot, have experienced some difficulty in proving the need for the changes and have had great difficulty in providing a considered response or a proper consensus, I would have thought that they would at least ensure that the whole Bill was debated on the Floor of the House, as constitutional Bills should be, and that enough time was provided for that. The deal should have been done by the Government and the Opposition, with the involvement of the Liberal Democrats in the discussion. The Liberal Democrats take a different view from mine, but I believe that we have let the nation down by not enabling the country to understand how we have limited our ability to deal with legislation.
There is more bad legislation than ever on the statute book because there is more undebated legislation on it. To make life more convenient for Members of Parliament, we have become more convenient for the Executive. To make our sittings times shorter and our hours more social, we have brought about a position whereby our constituents are faced with largely undigested Bills. Without the House of Lords, legislation would be impossible for the judiciary to interpret or tackle. I feel ashamed in my surgery when constituents approach me and say, "Mr. Gummer, how could anyone pass that clause?" I look the matter up and find that that clause has not been discussed. The compulsory timetable—the guillotine; that foreign invention that the Government have forced upon us—is intolerable.
Mr. Hogg: To reinforce those views, I invite my right hon. Friend to read the law report in The Times today on the case of Bradley. The court has been making similar points to his about the torrent of ill-considered and ill-drafted legislation.
Mr. Gummer: I am glad that that is the case. The fact that a court has made the point explains why the problem is at the heart of the Bill. The relationship between the law makers and the law interpreters is necessarily uneasy—there is bound to be tension; there always has been—but such tension can work creatively as long as both sides remember their purpose. Our purpose is to produce good law so that judges can make good judgments. We have allowed the Government to emasculate us.
I stress to my hon. Friend the Member for Huntingdon (Mr. Djanogly), who is on the Front Bench, that before he gets too enamoured of the wholly alien United States system, we have a parliamentary democracy and a key point in it is the ability of the legislature to keep the Executive under scrutiny and control. That means that the opposition—in the Government, of which there is a good deal, and outside the Government—must have the time to do that.
My worry about my party is that when we return to power we will say, "Well, they did it to us, so we won't give the powers back to the Opposition." I want to stress now that when we return to power, some of us will insist that our first action is to give back power to the people. That means that this House must have the opportunity

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to debate issues, such as the subject of our discussion, in the way in which we always did formerly, and thus produce legislation that is the envy of the world.
Sir Sydney Chapman (Chipping Barnet) (Con) rose—
Mr. Peter Pike (Burnley) (Lab): Will the right hon. Gentleman give way?
Mr. Gummer: I shall do so shortly, but first I give way to my hon. Friend the Member for Chipping Barnet (Sir Sydney Chapman).
Sir Sydney Chapman : I agree with my right hon. Friend's comments. Earlier, he mentioned the Planning and Compulsory Purchase Bill. He may be interested to know that of the 92 clauses in the first measure, only 26 were discussed in Committee. That resulted in the vast part of the Bill having to go to the other place to be considered, probably in a rather rushed manner, before the Government decided—uniquely, in my political career—to recommit a Bill to another Committee. That is the method of the madhouse in dealing with legislation.
Mr. Gummer: I know that my hon. Friend—
Mr. Deputy Speaker: Order. I say to the hon. Member for Chipping Barnet (Sir Sydney Chapman), the right hon. Member for Suffolk, Coastal (Mr. Gummer) and to the House as a whole that we are now straying somewhat from the Bill.
Mr. Gummer: I will not pursue my hon. Friend's point about the Planning and Compulsory Purchase Bill. He did, however, draw our attention to the crucial issue that, if we are to agree to the major constitutional changes in the Bill, we should have time to discuss them. I say to the Minister that it would help to regain a consensus on an issue that really matters if, even from his relatively junior position, he could convince the powers that be that showing courtesy to the House by giving us time to debate the whole lot on the Floor of the House would help considerably. It would also mean that many, like myself, who have doubts would find themselves much closer to where he wants us to be—even though I do not think that we should be discussing this because we have other things to do.
So, is there a real problem with the present system? No, that has not been shown. Has there been a considered response? Manifestly not. Will there be proper scrutiny? Not unless the Minister is able to convince the powers that be that there should be. Lastly, there should be an effective outcome. I do not know whether the Minister has looked at the notice outside the new Constitutional Affairs Department. It bears an interesting, if ungrammatical, slogan: "Justice, rights and democracy". There is no comma after "rights", so we must think of rights and democracy together. I am not quite sure why, but there we are.
The slogan was invented by the present Lord Chancellor; I found that out because I asked a lot of questions about it. The interesting thing about it also

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illustrates part of the problem with the Bill: it mentions rights but not duties or obligations. I wrote and asked representatives at the Department whether they could explain why, when we are to have a new Department, we are for the first time creating a society in which we talk about rights but not obligations. Some of us believe that no human being—no creative being—can have rights, but that we can only have obligations. Our rights are found in the obligations of other people and institutions towards ourselves.
The problem with Tom Paine was that he was wrong. He did not understand the nature of obligation. The great advantage of emphasising duties and obligations is that we remove the selfishness that comes with people who say, "I've got my rights!" If we all thought a bit more about our obligations, perhaps we would understand that a society run on that basis would be much more likely to be one in which the rule of law would be the representation of our duties, and that the more fortunate we are, the greater those duties and obligations become. To set up a Department that refuses to include in its slogan the word "obligations" or "duties" is to set up a Department that starts by being fundamentally flawed.
The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): I hesitate to intervene, but I remember answering an earlier question on this matter from the right hon. Gentleman. We cannot have justice or democracy without responsibility. That is the thing that connects citizen to citizen; we cannot have democracy or justice without it, and he knows that.
Mr. Gummer: Then why does the Minister refuse to put it in his Department's slogan? This country is filled with people, both rich and poor, who believe that they have rights but not responsibilities. The only way to change the nature of our society is to make all of us insistent about obligations, starting with our own—with mine and the Minister's—and moving on to everyone else's. This is at the heart of the Minister's missed opportunity. I gave him the opportunity to change this. I asked him a question and waited for his response. It would not have cost much, when we are spending £30 million, to replace the word "rights" with "obligations" in the little slogan outside his new smart offices.
That brings me back to my final point. The effective outcome will have to be paid for. I began by suggesting that it had not been established that there was a real problem. Indeed, the Minister waxed so lyrical about the excellence of the system, the honesty of the judges, the independence of Lord Chancellors and the reticence with which the Law Lords behaved during debates in which they might have an interest, that he was unable to argue much of a case for the need for the Bill. He was therefore even less able to argue the case for the cost involved.
I know many people who would say that if we have £30 million, we should spend it on giving people more access to justice. There are people who cannot get their case heard because of the slashing attack on legal aid over which this Government have presided. It now takes people longer to get into the courts, and it is more expensive for them when they get there. This

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Government have achieved that. That £30 million could be very much better spent. I do not know whether the Minister is married—
Mr. Leslie: Nearly.
Mr. Gummer: Then this is an ideal opportunity for someone who has been married for 27 years to give the hon. Gentleman a small piece of advice. When one's wife asks, "Can we afford to do this?", the one argument that one can never put forward is, "Yes, but only if we don't do that." That cannot be part of the argument. The argument is always about doing both. That is a necessary part of life. The trouble with Parliament is that we are acting like that. The hon. Member for Somerton and Frome (Mr. Heath) got up and said that we had to have the best legal system in the world and that if it cost a certain amount of money, that would be the amount we would have to spend. The Liberals are well known for doing this, as they have no hope of coming to power. However, if we spend it on that, I am afraid that we cannot spend it on anything else.
We have created a Bill whose justification has not been made out. It is not a considered response to a proper discussion. It will not be given proper scrutiny, and it will use resources that would be better used elsewhere. I am sorry that it has been brought before us and I wish that we were spending this time dealing with the issues that really matter, such as climate change or the way in which people who were already very poor have become poorer under this Government. The Government are not prepared to discuss those issues. Perhaps we could even have a debate about the Iraq war—an unnecessary and unacceptable war that we should have debated properly. We spent seven hours discussing it, yet we spent 200 hours on the Hunting Bill. This Government have no priorities and, above all, they do not know how to do things. They should not institutionalise the means of achievement, and that is why the Bill should be opposed.
7.18 pm