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CORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 1178-iii
HOUSE OF COMMONS
TAKEN BEFORE THE
Political and Constitutional Reform Committee
Mapping the Path to Codifying - or Not Codifying - the UK's Constitution
Thursday 8 December 2011
Tony Benn, Professor Richard Gordon QC and Frank Vibert
Evidence heard in Public Questions 113 - 153
USE OF THE TRANSCRIPT
This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
The transcript is an approved formal record of these proceedings. It will be printed in due course.
Taken before the Political and Constitutional Reform Committee
on Thursday 8 December 2011
Mr Graham Allen (Chair)
Mr Christopher Chope
Mrs Eleanor Laing
Examination of Witnesses
Witnesses: Tony Benn, former parliamentarian, Professor Richard Gordon QC, and Frank Vibert, Department of Government, London School of Economics, gave evidence.
Q113 Chair: Good morning, welcome. It is very good to see you. Thank you for sparing the time to come and talk to us this morning. You probably know we are the youngest Select Committee in the House-the Political and Constitutional Reform Select Committee was created at the advent of the new Coalition Government because the Deputy Prime Minister was given specific responsibilities in a particular area. Therefore, there should be a Select Committee to keep an eye on all things to do with the Deputy Prime Minister and to hold that part of Government to account.
One of the major areas of responsibility is around what you might loosely term the democratic agenda and political reform. Therefore, the Committee has been looking at the concept of the constitution. Is there such a beast? Should that be written down? What are the processes around moving that forward? Is there a need for reform? Looking at it from a very broad perspective, one of the things we are doing with our time over the next three years is to examine whether there should be a written constitution, hopefully outlining at some length the arguments against and the arguments for and possibly what a process might look like if people wanted to move forward on that. We are taking evidence almost on an occasional basis around our other more immediate pressing matters that we have to deal with as a Committee, and that is why you are here today.
Thank you for coming today and I apologise for the difficulty we had last time. I think there was industrial action, which meant the proceedings had to be cancelled. I hope that did not cause too much inconvenience for you. Welcome, Tony, Frank and Richard. This is very conversational. We want to pick your brains, we want to know your views and we want your help. I think possibly one of the best ways to proceed would be if you each wanted to make an opening statement and set out the scene of your own views, and if you would care to do that we would be very interested then to ask you questions afterwards. Richard, would you like to start it off on that?
Professor Gordon: Yes. I will make a very short opening statement and it really comes to this, that the possession of power in society is inevitable. Without it, there cannot be Government. Without it, there would be anarchy. That is the core assumption. But an equal core assumption is that power tends to corrupt whoever holds power. For that reason, there has to be accountability and accountability is in practice only likely to be achieved by some measure of checks and balances. In our society at the moment there is an absence of clear checks and balances. This affects all organs of the state. In theory at least, judges have potentially unlimited power, greater than is often supposed. The executive has enormous practical power and is in practice not effectively constrained by Parliament, but in theory at least Parliament has supreme and unlimited power. It is accountable to no other institution or organ of the state.
Because power tends to corrupt, it follows that this state of affairs is unsatisfactory, that those possessing power will tend to have a vested interest in resisting fundamental changes to the way in which that power is constituted. Moreover, given that those possessing the most power in fact will have the most interest in preventing change, it follows that, short of some constitutional crisis or highly persuasive reason that triggers a desire for change in those with the power to create it, such change will never happen.
Given these facts, these are the three points central to what I want to say. One, it is highly desirable to codify our constitution if by that is meant introducing a framework in writing for how we are to be governed; but two, such change will not come about through assertion, for example banging the drum of democracy or particular policies. It will only come about by persuasion of those who hold power. So, three, proposals for constitutional codification should be pragmatic, realistic and simple. They must also have an underlying reason driving them.
Q114 Chair: Thank you, Richard. Tony, would you like to make an opening statement?
Mr Benn: Well, it is very kind of you to invite me. I have been interested in this over many years, and perhaps I might explain how my interest arose. In 1945, I came back from the war and there was an election. I was not allowed to vote. They said, "You have to be 21". Well, I had been three years in the services and never killed anyone, I am happy to say, but still I had done my stint. I was incensed by this, that that did not qualify me. Then some years later, when my father died, I was disqualified from the House of Commons on the ground that my blood had turned blue, and that interested me in the whole nature of our relationship. Then later with the referendum and the Common Market and the powers in question, which is now very current in our discussion, I was interested in what might be done about that. I tried my hand at drafting a new constitution, which was presented to the House of Commons and I think a copy of the text of it is available if you wanted to have a look at it.
But that is my approach and I agree entirely with the point that has just been made about the importance of accountability of power because a Member of Parliament is employed by 60,000 people. It is the only job I know where you have one employee and 60,000 employers. Therefore, in your constituency everybody you meet employs you: bus drivers, street sweepers, home helps, district nurses. You are free to say what you like, but they are free to get rid of you if they want to, and that keeps you in touch with what they are thinking. I think the most powerful form of accountability is through election and democracy.
Q115 Chair: Tony, thank you. Frank?
Mr Vibert: Well, first of all, thank you very much for the invitation to be here. I just wanted to say something about the question of whether we actually need a constitution or a codification. I think there are two kinds of relevant tests. One kind of test is whether the present arrangements actually do what we want them to do. For example, do they encourage participation, encourage people to get out to vote as a minimal form of participation? Do they engender respect or trust in Parliament, for example? Do they give people a sense of where they can go if they have a grievance or do they feel powerlessness? That is one kind of test one can apply.
There is another kind of test about present arrangements and that is do they provide reassurance against people’s fears? Now, people have different fears. Some people fear that we are passing powers to the European Union without proper consideration. Some people are afraid of the power of unelected officials, regulators, central banks. Some people are afraid about a rights culture, giving rights that they do not agree with to immigrants or welfare recipients, whatever.
I think you can go down a list of questions in each of these two categories, and if one did a score sheet at the end of it, I think we might score quite highly on some but not on others. I think the overall report would say, "Could do much better". I think that is why we need to consider a constitution or codification, but at the same time we do need to recognise there are considerable obstacles and at the end of the day we might decide it is just all too difficult.
Q116 Chair: One question from me to help kick us off. Are we looking at codifying what is or are we looking at codifying something that we would prefer to what is? Indeed, could we do both in the sense of starting by writing down what we already have and then perhaps leaving it to evolution, Parliament or Government to have the debates about where we should move on from there?
Professor Gordon: My feeling about that question is that it depends upon what process is likely to be more persuasive to Parliament. There is great value in codifying what we have, great value, because apart from anything else, it would reveal the difficulty of codifying what we have. If such an exercise were to be undertaken, it would be necessary to be selective and it will also be necessary to have some authoritative commentary because there are huge differences of view between people who you would expect to understand what should be in our constitution. There are judges who believe that the common law trumps parliamentary sovereignty. There are many who believe that parliamentary sovereignty remains the bedrock of our constitution. These differences would have to be elucidated, I think, in authoritative commentary to any attempted codification exercise.
However, what I would hope that the Committee would at least consider doing, apart from perhaps authorising some form of what I would describe as low key but independent codification exercise, which might not depend on parliamentary authority, is to focus upon the possibility of a very short either constitutional framework statement or a very short constitution that would have crossparty support but which would not in any way be anything more than a short document persuasive to Parliament. I can elaborate later, perhaps, on the arguments that one should use in order to persuade Parliament that such a document would be valuable.
Q117 Chair: Tony, any comment on codifying what we have or what we ought to have?
Mr Benn: I think it has to be about what we prefer because what we have is defective. If it were not defective, you would not be having this Committee now that has been set up on that basis. The defects are very straightforward. We live in a modern parliamentary democracy, but the Crown powers have been retained and they go right back to the coronation oath of William I on Christmas Day 1066 when he said he would govern the country. If you look at all the powers associated with the Crown, not one of them is actually exercised by the Crown. They are all exercised by somebody else. The Queen does not summon Parliament; the Queen does not dissolve Parliament; the Queen does not write her annual speech; the Queen does not enact legislation. Yet all our written laws imply that the Crown does that, but these powers have disappeared somewhere else. The Prime Minister, in effect, is now the unelected king and he has access to all the powers. Parliament cannot discuss prerogative powers without the consent of the Crown. I think you would have to look for an improved system and if you did that I think the refreshment of that, so long as it is safeguarded and was designed to safeguard people’s rights, would appeal to Parliament and to the public.
Mr Vibert: Yes, I think it is going to be quite difficult to stop with codifying just what is because I think the process of codification will inevitably raise questions. For example, if one is trying to codify the powers of the Prime Minister, almost inevitably, perhaps, questions will arise about how to structure those. I think it is going to be very difficult to just stop with a codification exercise even though one could perhaps treat the two parts of the exercise rather differently.
I think also relevant to that is that there is a problem of the unsettled parts where we know that things are going to change and we would not want to be codifying necessarily. For example, the question of the relationship between Scotland and the rest of the United Kingdom, the question of the role of the House of Lords, or relations with the EU, are all arguably unsettled powers. I think one would have to perhaps look for a statement of principle, perhaps what is the role of the House of Lords to take that example, but leave quite a lot of the mechanics flexible as to how actually one would change the House of Lords. I think that question of unsettled areas would have to be addressed as a specific problem area.
Q118 Stephen Williams: Perhaps if I could start with Mr Benn. I have just been reading the Commonwealth of Britain Bill, which is 19 years old now. Having flicked through it, it is remarkable how quite a lot of what must have been a revolutionary statement in 1992 has now been implemented, although quite a bit has not been done. Are there any things in your Bill that you now wish you had not put in your Bill? Have you warmed to the Queen?
Mr Benn: I had to look it up to see if I disagreed. There are one or two things I would have added. I am coming to the view now that if you have a true democracy, the Cabinet must be open to the press in the way that Parliament is. It sounds very radical, but if you listen to Hansard or read Hansard you only get discussion, you do not get decision making, except the votes tell you what the outcome is. But in the Cabinet there are real discussions of alternatives and I think that would be a point I would add. That would be under the Freedom of Information provision and so on. If I went through it again I probably could make changes, but otherwise, when I looked at the main drift of it, the English Parliament, the federal chamber to replace the House of Lords and so on, I think it makes a lot of sense.
Q119 Stephen Williams: You still favour an English Parliament as a solution to the West Lothian question?
Mr Benn: Well, I think parliamentary government is the right way of doing it, but Parliament does not actually control many of the key decisions, which are still Crown powers. That means there is an isolated part of the decision making in Britain exempt completely from any form of democratic control.
Q120 Stephen Williams: You were ahead of your time on trying to reduce the voting age, which is something I tried myself to do six years ago and lost in a Bill by just eight votes, so hopefully in this Parliament that reduction to 16 will happen. On the voting system itself, while your Bill is quite revolutionary in terms of a major constitutional settlement, I think you are still wedded to first past the post. I wonder how you square that with a more pluralist outlook about democracy.
Mr Benn: Well, my opposition to the list system is that the people who sit in Parliament sit there at the decision of their own party leaders, who decide where you are on the list. I think every Member of Parliament should be elected by the people, not chosen by their leader, which would enormously centralise power. But I am in favour of and voted for the selective system, one, two, three, four, five, which I think gives greater force to the people.
Q121 Stephen Williams: You are in favour of single transferable votes but not a proportional list system?
Mr Benn: Well, the system of what they call selective-
Stephen Williams: STV.
Chair: The alternative vote.
Mr Benn: Yes, STV I think is more democratic because it gives everybody the right to have a role in the final decision, which otherwise they would not, but it is not the same as voting for a party and your leader deciding whether you are worth putting in Parliament or not.
Q122 Stephen Williams: I wish we had known that nine months ago. I think we would have enlisted you in the "Yes" campaign on changing the voting system. As a joint question to Tony and to Professor Gordon, I wonder whether you have read each other’s constitutions-because Richard’s is much more up to date-and what you identified as the strengths or the weaknesses in each other’s proposals?
Professor Gordon: I did read Tony Benn’s. Indeed, as I was saying to him earlier, it was one of the triggers for doing it myself. It seemed to me at the time that Tony’s constitution was very brave and a bit like space travel, not really foreseeable in the reasonably realistic future. Unhappily, having written my book and created my own constitution, I also think that that is not realistically achievable in the near future. My views have modified quite considerably in terms of what I think the best approach to getting constitutional reform is, but that is not to say that I do not believe in the proposals I put forward or that I do not sympathise with a lot of Tony’s proposals.
Just to give one example, I shared Tony’s views on the monarchy but, having done quite a lot of research among friends and colleagues and so forth, I was persuaded not to go as far as he did but to invest the monarchy with a symbolic authority. I do think, as I say, that there are great attractions to what he has done. If it was a blank slate, I think I would possibly go as far as he has done.
Mr Benn: The phrase that sums up my objection in a way is the oath that bishops have to swear when they have been appointed. They say they are elected, but they are appointed because the Church of England is one of our oldest nationalised industries. They are appointed and they then have to declare that Her Majesty is the only source of ecclesiastical, spiritual and temporal power. To be a bishop, you have to deny the whole existence of democracy and that is the basis on which you get appointed. This is not something that worries bishops very much, but when you look at it it does tell you something about the constitution, which identifies one of its defects.
Q123 Stephen Williams: This is another question to Mr Benn. Your solution to the monarchy was a president but, if I have interpreted correctly as your Bill was drafted at the time, it was an indirectly elected president who was someone chosen from among Members of the House of Commons and the House of the People that would have replaced the House of Lords. Would you now favour a directly elected head of state rather than someone chosen from the-
Mr Benn: I think the problem of a direct head of state is that you get a conflict between two sources of authority. Someone elected by the people, like an American President, would have a degree of authority that they could claim was greater than the authority of those in Parliament, who are large numbers and divided and so on. I prefer the idea of a titular head of state. Strangely enough, if you are looking for a suitable titular head of state, I think the Speaker of the House of Commons would be perfect. He is elected by Parliament; he is respected; he understands the constitution. If you had him and a Prime Minister who was really accountable for what he did, I think that would be the best balance you could get.
Stephen Williams : Mr Bercow would be very pleased by that statement.
Q124 Sheila Gilmore: I would like to turn to some of the more practical things about what process we should put in place to start moving this whole debate forward. It is nice to sit and draft alternative realities, but what do you see as being the things that would have to be done to at least get on the first step of this journey?
Professor Gordon: To my mind it is self-evident that to get a constitution in this country you have to persuade Parliament. Practically, you have to persuade the executive. You do not have to persuade, at the first stage, the people. One has to be very careful what one means by democracy anyway, and I will perhaps come back to that later. I think there are reasons that could persuade Parliament to start the trajectory towards a written constitution or at least a constitutional framework statement.
The first point is that this country is sitting in some ways, without wanting to express it too dramatically, on a potential power conflict between the judiciary and the executive. The reason for that is that as parliamentary sovereignty as an idea becomes more difficult to apply practically-so, for example, the increasing power of the European Union-it is important, I think, that boundaries are set between the different organs of state. I think that Parliament would be persuadable that with a written constitution, albeit I think quite a limited one, judicial power could be curtailed in a way that left no doubt at all that Parliament was the supreme body in the state.
I also think, contrary to views that have been expressed by some MPs, that it is only having a written constitution that will enable this country to resist the increasing power of Europe. It should be remembered that in Germany it was the German Constitutional Court in a case called Solange that resisted the socalled idea of European uniformity, supremacy and, because it clashed with Europe, Europe eventually introduced fundamental rights into its legal order.
The third area where I think Parliament will be persuadable is that even those in the executive are uneasy about not knowing where the boundary lines are. It is okay when you are in power but you are not always in power. This is the point. There is, I think, a feeling that it would be desirable to have some clearer boundary lines about how far the executive can go. If you have all this in a very simple framework document, whether you call it a constitution or a framework statement, there is a chance, a realistic prospect, of getting it through.
Q125 Sheila Gilmore: Could I follow up before the others come in on the question of the judiciary? My recollection, having done constitutional law and history, was always a feeling that if you had a written constitution, you had more judicial involvement because you now had a constitution that could be interpreted or argued about.
Professor Gordon: It is not correct. I understand the view, but there is a myth, I think, that because judges interpret a constitution, they can interpret it any way they like. This has been proved, the limitations of that have been proved, with the Human Rights Act, for example. I know there are complaints about the way it is interpreted, but the one thing Parliament has ensured through its drafting is that an Act of Parliament survives intact with full authority no matter how the judges interpret it. You could tighten that model in a written constitution. You could have very clear drafting that would prevent judges from interpreting black as white. The American constitution is not a good precedent. Those who remember the case of Marbury v. Madison will realise that the American Supreme Court’s power to invalidate legislation came from its interpretation of its powers, but that could be prevented in a carefully drafted constitution.
If you do not have a constitution, what cannot be prevented is creeping judicial supremacy by an assertion of the untrammelled nature of the common law. This has already happened in recent case law. Both Lord Steyn and Lord Hope in the hunting case, Parliament Act case, both said-completely inaccurately in my view but they both said it and once it is said it acquires legitimacy-that parliamentary sovereignty came from the judges. You only have to look at the report to see that what I am saying is accurate; that is what they said. Once judges start saying these kinds of things they acquire legitimacy because precedent is quite dense and cumulative. Without a constitution delimiting the powers of the judges, I do see a real danger that there may come a Marbury v. Madison moment, as it has been put in some of the constitution books. We now have the Supreme Court, and it is by no means unthinkable that judges will gradually seek more power. I think that would be anathema to Parliament. I think it is, therefore, a good argument for starting on the road to a written constitution.
Q126 Sheila Gilmore : Do the others want to say something about the practical steps we should take if we want to start down this road?
Mr Vibert: First of all, obviously this Committee itself can do enormously useful work in preparing the ground and clearing away some of the undergrowth, but I think eventually one would probably need a slightly different twostep procedure, a committee of experts who would define and refine the issues as perceived by this Committee and prepare some alternatives to the problems that the Committee sees and then it would have to be overseen by some kind of cross-parliamentary group. The parliamentary group would have to be able to give guidance to say, "We want more on that" or, "We want less on that" or, "Don’t go up that blind alley" or whatever it is. I think that kind of procedure would ultimately be necessary, but I think we have to be aware that there are three very practical obstacles.
First of all, the institutions have their own vested interests. We saw that in the case of the EU Lisbon Treaty. Therefore, the institutions have to be kept at bay in some ways. Secondly, civil society is a problem because there is the problem of the advocacy organisations, the NGOs. They have axes to grind and, therefore, that is a problem. I think, with all due respect to my neighbour on my right, lawyers are a problem because they do tend to think of judiciable rights and a judiciable final arbiter. I would think that the way of incorporating legal expertise is for a crossparliamentary body to have lawyers as an advisory group. I would not particularly put them or civil society organisations, such as a civil liberties group, on the expert group. I would look at not only political scientists or economists on the expert group but also sociologists and social psychologists, because at the end of the day if we are going to move towards a written constitution, it has to be salient to people. If it is not salient, it is not worth having. Your target audience is not a civil libertarian geek; it is the working mother who is multitasking. If it does not make sense to her, forget it.
Q127 Chair: Before I ask Tony to come in, Frank, your view of the Scottish Convention ahead of the devolved settlement in Scotland, do you think that was a good model and perhaps a transferable model?
Mr Vibert: I think the way of soliciting a wide range of public opinion is to go the town hall route, which has been tried most of all in the United States as a political device for reaching out to the grassroots. I prefer that to the convention model. I think one can use postcode systems to enable people in a locality to log into the debates being held in a town hall if they want to and intervene or monitor the debate on their iPads or whatever. I think the town hall model, which also has quite a theoretical literature history behind it, is the way to go.
Q128 Stephen Williams: The town hall model is fine, but Iceland recently has had this citizens convention of 950 people drawn randomly from the population, so it really is a bottomup process, whereas your two fellow witnesses essentially have laid down tablets of stone from parliamentary Mount Sinai or the legal Mount Sinai. Which would you prefer?
Mr Vibert: I prefer the random because it has to be grassroots. It has to make sense to the grassroots. I am not particularly keen on the random but I would prefer it. I would look for a way of linking an expert and a parliamentary oversight system to the grassroots and I think the town hall way is the way of going.
Q129 Chair: Tony, sorry to have kept you waiting but any comments on process, how you get from here to codification?
Mr Benn: I think the thing that is going to make this important in the public mind is our relations with the world at large. The European example is one, but the IMF, which we do not elect, has enormous power. The Central Bank in Frankfurt has enormous power; we do not elect it. I think at some stage people are going to ask themselves to what extent does that infringe upon our claim to be self-governing, and that is the referendum argument, of course. Therefore, that is the way it will come about and it may be that the whole thing will not come out as a perfect constitution but defects or problems that arise will be seen to be capable of being dealt with by amendments to our law here. When that does take place, people will see that as part of our new constitution. It is a very messy way of doing it but all progress has always been made in that way. It is never a process of going down to start at the bottom and write it all up perfectly. It has always been a matter of dealing with an immediate problem that has to be dealt with.
Q130 Sheila Gilmore: The experience of Scotland in some ways is quite interesting. If one of the ends that we are all trying to achieve is to make both the constitution and politics more relevant to people, the Scottish example is interesting. While the convention had a large degree of signup-okay, maybe it was not exactly grassroots but certainly a large degree of sign-up-and changed the model in lots of ways from the Westminster model, including the voting system, one of the outcomes has been that fewer people participate if you measure that in terms of voting, because that is the opportunity that ordinary people have. Significantly fewer people vote than in, for example, the Westminster election. People spent a lot to time thinking about how it would process legislation and so on, but neither changing the voting system to STV-well, it was not STV but a proportional system-nor necessarily having a body that is different meant more people voting. Is all this really just not something that resonates with people? Is this just not what they are interested in?
Mr Benn: Well, what happened in Scotland was the result of a demand and the demand led to a partial success, greater powers, and then a new development or new developments are occurring and people are taking them on board, accepting them as normal or rejecting them, looking forward to the next stage. That is what I rather meant when I said all change takes place on a case-by-case basis rather than on a perfect model at the end and the outcome, what Scotland will be like in 100 years’ time, will depend on the Scottish people. It will not depend on the English. It will depend on the Scottish people and you will have worked out how you want it to go. If you decide on a new format, it will take place and will then be the constitution you accept and respect.
Q131 Sheila Gilmore: But people don’t seem necessarily to be that engaged.
Mr Benn: Well, they will have to be engaged, won’t they, because questions will arise they will have to vote upon.
Mr Vibert: There are a number of reasons why people do not vote, but I think one of them is they feel it does not matter; they cannot influence anything, they are powerless. Some that this can be overcome by changing the voting arrangement. However, if voters think that it does not matter whatever voting system you have, that they cannot influence the system and it is not going to be responsive to them, then you have a different type of problem. I think that is what is happening to some extent in the UK today. You have powers spread between different regions in the United Kingdom and then you have the European Union, of course, and people probably feel very disconnected given the way power is actually being wielded.
When I first favoured the idea of a written constitution 20 years ago in my IEA paper it was because I felt that the EU was a problem, powers were being transferred there and I did not feel that we were intervening sufficiently or thinking about it in the right sort of way to grapple with that particular issue. I think today what we see is people not very comfortable, not at all comfortable, with our relationship with the European Union. That creates a very unhealthy relationship between people who are uncomfortable and political leadership, who say we have to get on with it, there is no alternative. That is a very unhealthy situation and I think that we would have provided better safeguards in our dealings with the EU if we had thought constitutionally.
None of the kind of constitutional safeguards we have in the EU treaties-subsidiarity, the principle of conferral of powers, the yellow card system-work. They do not work because there are too many loopholes in the principle of conferral. There is too much emphasis on harmonisation. We have failed to recognise that three of the institutions, the Commission, the Parliament and the Court of Justice, have a vested interest in extending the powers of the European Union. We have failed to recognise what is called a blocking minority when it comes to voting is not a blocking minority; it is a bargaining chip. We get something but we have to give away something. We need a much more flexible kind of European Union and a more flexible relationship with the European Union. I think we would have had a much more flexible Union if we had thought constitutionally about these kinds of issues.
Sheila Gilmore: Perhaps this is the moment for Christopher. I think I have finished my questions.
Chair: Did you want to come in particularly on the back of that, Christopher?
Q132 Mr Chope: I agree with what Frank said about all the problems with the European Union, but surely the answer to those problems is not to have got into the position where we are already. We could have stayed outside the European Union. We could have avoided the salami slicing of our sovereignty that has occurred over successive EU treaties and we would not be in the problem we are. I do not believe that if we had had a written constitution it would have prevented this any more than having a written constitution in Europe, which we thought we had signed up to. The Lisbon Treaty has prevented the abuse of concepts like subsidiarity, which was exemplified yesterday in the statement on the Common European Sales Law, which made it plain as a pikestaff that although the Government and this Parliament thinks that this Common European Sales Law is in breach of the subsidiarity rules, it is not going to make a hap’worth of difference because in order for even the European Commission or Parliament to look at it again they need to get one third of all the chambers of all the Parliaments in the 27 Member States to agree with us that there is an issue to be discussed. That just shows the extent to which our sovereignty as a nation has been eroded by these European treaties. Surely the answer to the problems you raise is to have a referendum of the people now, coupled with proper information as to the costs and benefits, to see whether the people would now wish, having had the experience of being in the European Union, to go back to having a pure trading relationship with our European partners.
Mr Vibert: With due respect, I do not entirely agree with that. I think to pose it as an inside or outside the European Union question is a misperception, because whether we are inside or outside, we are going to have a structured relationship of some sort. The EU has a structured relationship with all its neighbours and we would be in the same situation of wanting some kind of structured relationship and the EU from its side would want some kind of structured relationship, so the question is how do you get the right kind of structured relationship. That is where you have to start thinking constitutionally.
Q133 Mr Chope: Who is going to interpret this structured relationship? Is that not the heart of this problem?
Mr Vibert: That is a different issue.
Q134 Mr Chope: If you have an unwritten and evolving constitution, which is what we have at the moment, then it means that you are not confronted with the problem of having effectively a freeze-frame constitution that is brought in at a particular time. It might have been Tony Benn’s constitution written down, but that itself would have needed to be amended to reflect changing situations. Even Tony’s own evidence at the beginning said that when he started off he was against having the voting age at 21. Well, as a result of consensus and the views of Parliament it came down to 18. Again, the hereditary peerages, that was altered by Parliament to reflect a different view within the country and a different view among the country’s elected representatives. Similarly, at the time of Ted Heath and going into the Common Market-
Chair: Chris, is there a question there?
Mr Chope: Yes, this is a question because basically would not the witnesses collectively agree that they have demonstrated in their opening remarks that the problem is associated with the inflexibility that inevitably goes with having a codified or written constitution? Isn’t it better to keep things flexible?
Chair: I will come back to Chris, but Eleanor is next. If the witnesses would like to just respond quickly to that one.
Professor Gordon: I will very quickly respond to that. I think there is a huge difference, which has yet to be articulated, between policies that are capable of change and constitutional concepts, which are less capable of change but are also capable of change. The idea that the voting age is some form of necessary constitutional provision needs to be treated with care. What resonated with me was Frank’s comment that one should think constitutionally. I agree that if we had thought constitutionally, it is possible that we would never have entered the European Union in the first place. Thinking constitutionally has its benefits as well as its drawbacks.
I would, however, very quickly, simply say that we should always come back to this question of process. I agree it should be cross-party support, the most neutral statement of constitutional provisions possible to get broad cross-party support, and I certainly would suggest you cannot exclude and should not exclude lawyers from that process. You should involve all the major players of state. I think there is a huge need for lawyers and politicians to understand each other better, and I could develop that later. Essentially, the process has to be simple and if it gets us into arguments about Europe or voting age, the whole focus will go. It has to be very, very simple and very clear.
Mr Vibert: On this rigidity question there are two different issues. One is a judicial review issue, and there I think there are alternatives to consider. On rigidity, again it is a slightly false proposition. Any constitution is going to have a mix of soft rules and hard rules and it needs both kinds. Hard rules are things such as anyone accused of something has a right to a fair trial. That is a hard rule. A soft rule is, for example, the Chancellor of the Exchequer telling the Governor of the Bank of England, "These are your public policy objectives" but leaves open as to how the Governor achieves those. A constitution will deal with both kinds of rules.
Mr Benn: The Common Market is only one example of international relations. The United Nations is another and that has enormous powers. The Criminal Court in The Hague, which could affect our people, could have become a burning issue but it has not. I think we have to approach this in terms of our own experience of what is happening and whether we like it or not and, if we do not like it, how will we change it. Then if we change it, that fits into an evolving constitution rather than one that comes freshly drafted out of the lawyer’s mind.
Chair: We will come back to you, Chris, because I think the European issue focuses on whether or not a written constitution would be helpful to those who are trying to safeguard some form of national sovereignty or parliamentary sovereignty. I think that is very important. Very briefly, it would appear to me that in this country we have very strong executive authority, untrammelled by a written constitution. It has been that executive authority that has led to the movement of power without effective check in this country. Arguably, had we had more effective check and had Parliament not been towed along by various executive governments, we could have stopped some of the things or made them more legitimate if we had had some sort of written settlement. I would like to come back to you with some of those views, because I think this whole concept of either Europe tells us what to do or we have parliamentary sovereignty is a totally mythical one. I think the problem here is executive power, but let us come back to that because it is a big issue that focuses a lot of our thinking.
Q135 Mrs Laing: I would like to approach exactly that from a slightly different aspect but not very different, because I think you, Chairman, have summed up the crux of our discussion. It is interesting to note that Tony mentioned three things that set him off originally on this pilgrimage. Two out of three is not bad. You have succeeded, or you and many colleagues have succeeded, in reducing the voting age from 21 to 18. Our system has succeeded in dealing, at least partially, with the hereditary peerage, and there is every prospect of the hereditary peerage generally being dealt with over the next year or so. That leaves the third one, so there is still hope of your getting three out of three, bingo, eventually, as far as our relationship with Europe is concerned. When looking at the structured relationship that we perhaps ought to have with Europe, is it relevant that every other country in Europe, and indeed wider, has had some form of structured constitutional renewal as a result of war or revolution or uprising or something in the last 150 years and the United Kingdom is almost unique in having had no examination of our constitutional position in two centuries? Is it relevant that other countries have, therefore, more modern and custom-made constitutional arrangements?
Mr Benn: If you look at the Arab world today, what interests me about Egypt is it is so much like our own history: great opposition to repression, you topple the Government and then you find what you have is military, so you come back to raise it again. This is the English Revolution and Cromwell and so on, an exact parallel. That is how things do change.
We have had a number of substantial changes, mainly as a result of industrial development, I think, which have had an impact on the way our constitution has developed. The one thing we have not done is to inscribe the rights of citizens. There is nowhere where you can look and see what your rights are. We have duties, most of which are completely illusory, but we have duties imposed on us but we do not have rights conferred upon us. I think there could be a lot of dissatisfaction about that. I think the Common Market question is just one example, if you like: can a Government subordinate you to another legislature abroad or not? That does raise questions of human rights. Maybe that is how things do change. But you are quite right, we have not been through a revolution or a war of a kind that forced people to sit down with a pencil and paper and start from scratch.
Professor Gordon: You asked if it was relevant whether most countries who have written constitutions have had their constitutional moment, i.e. a crisis. It is plainly relevant because it is almost impossible to think of any country that has not had a constitutional moment that has created a constitution. But the next question, which I think has to be asked as a supplementary, is why is it relevant. The reason I think it is relevant is that those with vested power interests are not the ones who are going to propel or trigger change. That is why it takes a crisis. It took a crisis in Iceland, for example, to get them moving on their constitution. But I would prefer to avoid the crisis.
You avoid the crisis by, to use Frank’s graphic phrase, constitutional thinking. If we fail to think constitutionally, we are not going to anticipate crises ahead. This Government never anticipated for a minute when Blair wrote on the back of an envelope about having a Supreme Court. He did not think about what that would entail or could entail. When he proposed reform for the Lords he never thought that this could present the impasse it has. To my mind, there will be further crises along the road that we simply cannot even foresee today without a written constitution of some sort and without us thinking as a nation constitutionally. Yes, you are right to say in precedent terms it is very hard to find a country that has not created a new constitution out of crisis, but that is not a reason for not having it. It is actually a reason for having it.
Mr Vibert: I think if one goes back to this question of the constitutional moment, there are three potential triggers. One is an external shock; the Soviets leave central Europe, people have to draft a constitution. Another is an internal crisis; the Arab Spring has been mentioned, a perfect example. The other situation is the one that was discussed by Nobel Prize winner James Buchanan in the constitutional economics literature. In his view, you get a constitutional moment when you have a transfer of powers within a multilevel system. That is what we are having now with the regions and with Europe. In his view, when you get that kind of shifting of powers within a multilevel system, you are going to have a constitutional moment because when you shift powers, you need safeguards over the exercise and the definition of those powers. The question is why have we not had this constitutional moment when we are seeing lots of powers shifting around. I think this does get back to the point made by the Chairman that this has been done by the executives and so we have essentially had an abuse of executive power and this has stopped us from having a constitutional moment.
Chair: A very good question, Eleanor. This is fascinating.
Q136 Mrs Laing: Thank you. Can we explore the next step? If it is relevant, and you have all said that it is relevant, that our European partners have different constitutional structures from ours, would our country-and I am using that term so we do not have to go into do we mean the United Kingdom, do we mean Great Britain, do we mean England, do we mean Scotland-our people, be better protected? Since Frank said that the current safeguards do not work, and I take your point, would we be better protected if we had a constitutional structure that made us fit in-no, let me not put it that way. That would be a leading question, Chairman. Let me put it the other way round, would we be better protected if we had a constitutional structure and some kind of codification of our relationship with the European Union?
What I am getting at here is we discovered as a Committee when we went to Dublin a few weeks ago and we were discussing constitutional arrangements in Ireland that, of course, Ireland has a constitution that was written in the early part of the 20th century and has inbuilt, for example, the need for a referendum at certain key points. We do not have that in the United Kingdom because we do not have a modern constitution. That has protected Ireland. Sheila was talking about engaging people in the constitution, engaging the people generally in the constitutional discussion and it is all about whether we should have a referendum or not. Of course, we do not require to have a referendum on anything because we do not have a constitutional structure. Almost every other country does and it is noticeable when you look at Ireland with a modern constitution that there is a protection there. It is also sometimes a brake that can be frustrating to the executive who want to get on with things. I come to the question but I wanted to leave it wide because I think we might get some interesting answers. Would we be better safeguarded through having a written constitution?
Professor Gordon: Well, that question can be slightly reframed: would we be better safeguarded if we had constitutional safeguards, to which the answer to my mind is selfevidently yes. It depends what safeguards, but you mentioned the referendum, which is not a bad way of engaging in periodic review by the people, however that is done. But would we be better off with carefully framed, clear, accessible constitutional safeguards? I cannot see how that question could be answered by anything other than "plainly". Anyone who has read de Tocqueville’s L’Ancien Régime will realise that change after the crisis has happened is too late. The existing structures, if we have this sort of third model that Frank has mentioned, shifts of power vertically, horizontally, we do not see the crisis until it has happened. Once you start replacing things after that, it is a much less planned and structured constitutional framework than you would have had if you had acted in time. That is broadly my approach to that question.
Mr Benn: Our constitution has developed as a result of meeting local needs that had not been thought of before. For example, in the year 1832, which is not so very far away, only 2% of the population had the vote-no women, of course, and only 2% of the men. The struggle for the franchise was in response to growing demands from people who felt excluded. That then as it came in became part of our constitution. I think that that is the way it always happens. Society learns by its own experience and then tries to deal with it by legislative provisions and then, when they are integrated in with the other legislative provisions, they become part of our developing constitution. Maybe in the course of that there is a case for sitting down and writing and publishing a completely new constitution that would deal with all these problems. Whether people will be interested in that I am not so sure, but it is of enormous importance that it be done, because unless people feel they have a legal stake in society they will not take an interest in the way they should in the politics. I think that is the way to do it and that is why I think the proposal by the Committee to look at a written constitution is a very important one.
Mr Vibert: Richard has mentioned the German constitutional case and I think it has had an unexpected effect. As a result of the Karlsruhe judgments on two occasions now, the unexpected effect has been to strengthen the role of the Bundestag, and specifically the European Committee in the Bundestag, because the court has said that powers cannot be passed to the Union unless the Bundestag has agreed. This has strengthened the role of the European Committee in the Parliament and we have seen it very recently where effectively the Irish budget has had to be approved by the European Committee of the German Bundestag before the German Chancellor feels free to give it assent. That is a result of constitutionalism. I am not sure that I would entirely commend it because I am not so keen on a final judgment being made by a court, by a judicial process. Nevertheless, this is one example of how having a constitution actually alters things, and I think it alters them in a rather unexpected way.
Q137 Mrs Laing: Can I have one very quick last question, because I think we have been exploring some very important matters? Would it be correct to say, as Richard said in referring to recent changes in the bringing in of the Supreme Court, of proposed changes to the Second Chamber, the House of Lords, the creation of the Scottish Parliament and the Welsh Parliament, that a Government cannot change a part of the constitution without affecting the whole constitution?
Professor Gordon: That is an equally profound question, if I may say so. First of all, you will be pleased to know that Lord Neuberger, the current Master of the Rolls, said you tinker with the constitution at your peril. But the answer is that the problem you have identified, which is that you cannot move one prop without the thing collapsing-that is perhaps the logic of the question-is that this very great danger arises from untrammelled executive power. All the various constitutional dramatic changes that you have referred to are the result of executive fiat, essentially. They are not the result of a constitutional framework that would govern the progressive, principled change that I think we would all advocate. Yes, I think there is a point to be made that you tinker with parts of it at your peril, but that is exactly what the executive is doing, which is why we need something that approaches the thing holistically but does it in a very low key, neutral, minimalist way, in writing, by consent. I cannot think of any other solution to this because once one starts getting into areas of policy or getting into areas of disagreement, it is never going to happen.
Mr Vibert: I think one can take a discrete area but recognise there is a context and a wider context. The example I would give would be of fiscal rules, budget rules. One can think in the United States of the push at one point to have a balanced budget amendment as a way of maintaining fiscal discipline in the United States and having that as an amendment to the constitution. In fact, it has not been passed and I think the momentum behind it has somewhat evaporated. I think it is interesting to reflect on why. It is partly because it may not be respected in practice, politics may have supervened; it is very difficult to formulate because you have to think about the entire economic cycle; and you have loopholes. You create incentives for people to avoid the fiscal straitjacket and so they start thinking about guarantees or insurance or pooling, other ways of getting round such an amendment. These are the very precise issues one has to focus on in thinking about that kind of rule where they can be looked at discretely. The context, of course, is the role of the executive and the legislature and is one taking away from their functions? What one has in the United States is the creation of the OMB in the Executive branch, the Congressional Budget Office for the legislative branch, and to address the political problem recently it was a super-committee. You have not had a constitutional change but you have had a rather focused discussion on a particular part of the constitution and it has had constitutional effects.
Q138 Chair: One of the things I would take from Eleanor’s line of questions is clarity: who does what? I think there will never be perfect clarity and there will always be some room for interpretation and that is quite appropriate. But in our context would you agree there is very little clarity? We sometimes have a Parliament that wishes to delve into whether traffic wardens can have particular powers on our high streets at one level and pretends that it has a view that is taken seriously on global issues or the European Union. It seems somewhat to contain every level of power and actually probably no real level of power. Defining what a Parliament should do, defining what the locality should do and defining above all what the executive should do starts to bring into focus some of these bigger questions about the relationships in a plural democracy.
Professor Gordon: There can only be one reason for not clarifying and that is it is better to play this game of bluff. As Stephen Sedley once said extrajudicially, "I wouldn’t want to blink first if there was a conflict between the judges and the executive". There isn’t a need, to my mind, to play that game of poker. You need to have clear rules. It should not be divisive in the current state of our constitutional evolution that parliamentary sovereignty is the basic doctrine, but it equally should not be controversial that judges do have some checks over that but they do not have unlimited checks. The growth of the common law is a very good example of lack of clarity that has led to, I think, a potential crisis. Common law was only one of four or five systems of law in the 13th and 14th centuries and it grew. It grew because of politics among the judges. It grew to the point where the common law usurped all the other areas and is now seen by many people as the fount of our constitution. That may surprise you but it is true. It does-
Q139 Mrs Laing : I was merely raising my eyebrows as a Scots lawyer and not being wedded to the common law as those in England are, sorry.
Professor Gordon: It may be different in Scotland, but the fact remains that it is not a good thing, lack of clarity. It is a very, very bad thing. So, yes, I would agree with you.
Q140 Chair: Frank, Tony, do you have any view on that? No. In a sense, talking about the moment, when the moment arises, there might have been that moment, although it came and went, when there was a devolved settlement in probably the first year of the Labour Government in 1997, devolution to Wales and Scotland. There was some settlement around the Northern Ireland issue and then a failure on the English regions. Had there been consolidation of nonWestminster power at a lower level, if I can put it that way, that might have brought into pretty stark relief what it was the Westminster Parliament, in effect the federal Parliament in the UK, would have had to have done. That would then have begged questions about what our appropriate relationship might have been with the European Union and other international institutions.
Mr Benn: Can I just raise a point about the sovereignty of Parliament, which we often speak about? I believe in the sovereignty of the people and that is a higher order of sovereignty because the people can lend power to Parliament for a period and then take it back again. I think one should always see whatever you propose in terms of the impact it has on the rights of ordinary people to band together and achieve anything. If that were to be restricted in any way, it might be convenient for Parliament but it would not provide for a safe framework for the future development of society. That would be the test I would apply. I think it is always worth remembering that Parliament is a derivative of popular sovereignty and not its superior.
Q141 Mr Chope: Following on from that, that is why we have this principle that no Parliament can bind its successors. That is the essence of the sovereignty, because the sovereignty is coming from the people and one group of people cannot lay down the law and say, "That is going to be the law for a future generation". It will be for that generation to decide for itself. When Frank deprecates the example of what is happening in the Bundestag, that is quite the reverse of this, because what is happening there is that the court in Germany is saying if you are going to transfer sovereignty, then it has to be done with the approval of Parliament, but once it has been transferred, it is gone forever. They cannot get it back. What we want in this country is to be able to have a continual reassessment by the people through the people’s representatives of what we want and what we do not want to be our laws. That is the difference between, in a sense, the common law tradition in England and the continental tradition, which is very much more prescriptive. Okay, they have these rules set out in Germany, but it is an illusion to think that those rules are always operating in favour of the people because once one generation has given up power to the EU then it is impossible to get it back under the German constitution.
Mr Benn: That is absolutely right. The Council of Ministers, which make the laws in Europe, first of all, are appointed and not elected. Secondly, when they make a law, that becomes the law of Europe and, unless you can get back and alter the opinions of all of them, for which there is no process, you are stuck with what has been decided by an earlier Council of Ministers.
Professor Gordon: I think this is taking us to the question of entrenchment, isn’t it? Sorry, did you want to say something?
Chair: No, please go ahead, Richard.
Professor Gordon: There is no inconsistency between rules in the constitution and the right of the people to review the constitution if, in truth, the constitution is an emanation of parliamentary sovereignty. So the correct constitutional theory would be that Parliament can always review that constitution. It would be entrenched in an Act only, and an Act of Parliament, by definition, can be repealed. However, there is a model that is worth mentioning, which is the legitimacy model, which we have in the Human Rights Act.
The Human Rights Act could be repealed tomorrow, but gradually it has acquired a legitimacy that makes it more difficult than an ordinary Act of Parliament to repeal but certainly not constitutionally impossible to repeal. If we had a written constitution of the kind that I think everybody in this room is at least envisaging as a possibility, it would be one that could be repealed. It would not be one in which the values of the constitution were permanently entrenched but it would, over the years, acquire a legitimacy and it is that legitimacy that I think is missing from our current constitutional arrangements.
Q142 Chair: I will call Simon, but I think we need to know what the landscape is in front of us and we need to be honest about that landscape. I think we need to challenge things such as the concept that one Parliament cannot bind another. In my long experience in the House it has not been Parliaments that bind or do not bind, it has been executive power using the mythology and the illusion of parliamentary sovereignty to create certainly laws that do not bind its successor.
I, as you, Chris, have seen a procession of executives using Parliament to pass laws rather than Parliament itself independently, separately, with checks and balances, being able to intervene effectively as an independent institution in that process. That is why I think the European argument might be the moment that some of the witnesses referred to because it will reveal to all of us the full extent of unconstrained executive power, which can take us in, can take us out. Mr Cameron can sit down and do a deal this week about treaty change and you may want to organise some guerrilla warfare about that, but that is very different from a concept of parliamentary sovereignty.
Q143 Mr Chope: Just to take an example, you say it is untrammelled executive power. What happened when we had the poll tax riots, so-called? The people spoke and the people’s representatives were concerned and the executive reacted incredibly quickly to change primary legislation, thereby reversing what had been a major plank of the manifesto at the previous election. It also resulted, arguably, in the downfall of the Prime Minister of the time. That came from the people. So I think it is wrong to suggest it is all in the control of the executive.
Q144 Chair: Not Parliament.
Mr Chope: Well, it came through Parliament.
Chair: It was amendment by riot.
Mr Chope: No, it wasn’t. Ultimately you can say that it was Conservative Members of Parliament who made it quite clear that they needed to have a change in the law otherwise they were effectively going to be voted out by the people at the next election.
Stephen Williams: It was the electors of Eastbourne, wasn’t it?
Chair: Let me get back to the plot. Simon? We will come back to Chris, because there is some good stuff here.
Q145 Simon Hart: Just going back a couple of steps. Richard, one of the themes underpinning your written evidence was restoring public trust and confidence in politics. What I am not sure we have absolutely got to is how this process not only engages the public-I do not mean those with an intellectual interest but genuinely engages public debate as we proceed-on the one hand and how, at the end of it, it necessarily results in greater confidence. The reason I say that is taking one aspect of Tony Benn’s proposals about devolved Parliaments. In Wales as an example, we have the Welsh Assembly, as you know. Okay, it does not have much by way of primary lawmaking powers, but there is no evidence whatsoever that the creation of the Welsh Assembly has done anything at all for public confidence in the political system. It is a practical question as to how do we engage people, why do we think it would work and what is the panel’s view on the state of devolution, in my case the Welsh Assembly, and whether that has gone any way at all to achieving the objectives that you have set yourselves?
Professor Gordon: I think, Simon, the first point about devolution is that, again, it did not come from a carefully structured, constitutional framework. You have anticipated, I think, another topic, which is how are the people going to be involved even if the process is top-down. The reason I think the process has to be top-down is not from any belief that that is the most democratic way of doing it. I just think that it is inevitable that unless you get those with a vested interest and power persuaded, you are not going to get any change at all. Once you have, by a process that could be quite simply devised-and it could even start with Select Committees taking evidence, producing a document and so on, endorsed by Parliament-I think, however convenient it might be to avoid even engaging the people to get this document out, it would be constitutionally illegitimate to do that. So at that stage you would need a referendum.
You have to involve the people in the decision and this was Dicey’s great view about the referendum when home rule was being introduced. He added the referendum as an additional aspect of government to parliamentary sovereignty. It is an additional aspect of our constitution, in Dicey’s view. The people’s veto is very important. I appreciate that we are a long way, I think-and this is one of the problems with localism-from the general public being sufficiently well versed in constitutional matters to get really engaged. I think that as much engagement as possible should be tried but, rather like Tony Benn, I think that the way change occurs is not generally by the people deciding that there shall be change.
I think the people should have the right to veto a draft constitution. It is for consideration what the percentage might be, but if they did veto it, that would prevent such a document from coming into force. Obviously the process involved has to take account of the fact-this is one of the problems that hit me when I was drafting my constitution-that you cannot draft a constitution by popular vote. Statistical democracy has built-in tyranny. Minority interests, human rights, have to be protected, as Tony Benn has said. That can only come, ultimately, from a process that begins at the top. If it starts at the bottom and you have a huge vote for hanging, is that going to go in the constitution? Answer, no, because ultimately a constitution has to be informed by western liberal democratic values, which are pluralistic rather than statistical. That is my rather convoluted response.
Mr Benn: I can imagine one reform that has been mentioned, about equality of representation between the sexes, becoming of such interest that it could come, if women demanded it strongly enough, and a lot of men would support it, that we would end up with a Parliament half of whom were women and that would transform the nature of Parliament and the way in which it operated on a whole range of matters. I think that could be an example of popular movement changing opinion at the top, however reluctantly the guys at the top had to accept it. I think they would have to accept it in the end because the basis of representation is sexist.
Q146 Simon Hart: A quick follow-up on the referendum point, because you mentioned earlier on that referenda did, to some extent, act as a safeguard. Having gone through a couple of these in Wales in recent months, I wonder about the extent to which they really can act as a safeguard, given that the timing and the question and the sort of campaigning background noise is often a gift to either wealthy lobby groups or indeed the Government of the day. I suspect it is better than nothing but in its current form is it the safeguard that we would like to think it is, how could we improve that and do you, as a group, think that thresholds-we have discussed thresholds in this room before in another context-are a good thing? Of course, the creation of the Welsh Assembly was based on the vote of a relatively small number of people and that has rankled ever since. I would be interested in your views.
Professor Gordon: Slightly picking up on what Tony Benn said as well, in terms of a draft constitution, I think that if you start from the process, coming back to process all the time, it has to be cross-party. That is why you do not get the campaigning. You won’t get the campaigning at least from the parties and that is important. The AV precedent is a good example of how negative a referendum can be, but if you have cross-party support for a constitution that has the sort of values that would excite the population-generally AV, proportional representation, might be a turn-off but 50:50 woman-men would not be a turn-off-I think you would engage the people with sufficiently innovative proposals provided they had cross-party support. If you do not get cross-party support, my own belief is none of this is going to happen and so we then get back to the question of how weak a referendum would be.
I agree with you about devolution, by the way, but my point about devolution in Wales or, indeed even in Scotland, where you had to have the Calman inquiry quite recently, is that these are all the brainchilds of a Government that was entering into political compromise. It was not a constitutional programme. Going back to Graham’s point, there never was a plan to introduce devolution, Human Rights Act, Supreme Court. These things sort of evolved from executive fiat again. So we are always back to these problems.
Mr Benn: I would have thought most change of the kind you have been discussing was very controversial, far from being by all-party agreement. If you take the extension of the franchise, votes for women and a whole range of other things, the NHS and so on, these were very controversial. But my analysis of how change occurs is if somebody comes up with a new idea, to begin with it is ignored. Then if you go on, they say you are mad. Then if you go on after that they lock you up, as they did with the suffragettes. Then there is a pause and then you can’t find anyone at the top who doesn’t claim to have thought of it in the first place. That is how we make change. The consensus for it comes at the end but it does not usually begin a movement for political change, I don’t think.
Mr Vibert: I think on referenda specifically there are three cautionary tales. One is California where people vote for contradictory things. They vote for no more taxes and then they vote for spending programmes. There is the Swiss cautionary tale that you vote every Sunday and populists have their moment in the sun, and there is the Irish cautionary tale where people vote for something other than what they are being asked to vote on. So I think one has to approach referenda with a great deal of caution but I would not exclude them as long as conditions are set up for a sufficient number of votes to call them and they cannot be manipulated and so on. I would not exclude them, but if it were to come to ratifying a constitutional change, I would look for two criteria. I think there should be a majority in favour in each part of the United Kingdom and I think there should be a minimum participation level by those who are eligible to vote. The justification for this, apart from making sure that everybody is comfortable with the outcome, is that it is an incredibly important discipline on those who are drafting, because they have to be sure that whatever they are drafting is going to be salient to people and, if it is not, it is not going to be passed and that is the end of the story. So salience is a tough test.
Q147 Simon Hart: One last question for Tony Benn, if he will forgive me, on this point. I did not quite understand in your 1991 proposals on a Welsh Parliament whether you saw that as having full lawmaking powers and tax-raising ability and how we square the English-Welsh relationship where you have a country that has a £20 billion tax-raising capability but a £30 billion cost attached to it. Obviously the two sentences in your proposals did not go into that, but I just wondered what your view was on it.
Mr Benn: I see the referendum as being the only way you can legitimise to the people a change in the power relationships. That is why when you had a Mayor of London, it changed that relationship, so London had to have a referendum and that was true all the way through. I think on the Lisbon Treaty you should have had a referendum and I think the question of a referendum will come up again in the present circumstances. But the reason that you justify it is because anything that alters the rights of the people to make the laws they want is of such importance it has to be cleared with the people because they are sovereign. That is the way I look at it. If you had a referendum on every Bill, then it would be quite impossible. You would have massive campaigning and I do not think sense would come out of it, but on constitutional change I think a referendum is necessary.
Q148 Chair: I wanted to try and bring this European thing back and maybe bring Chris back as well on this debate, the reason being that you talked about "the moment" happening, the moment when the logjam breaks. Whatever preparatory work you have done, you have had discussions, you have had debates about codification, there comes that time and it could happen, probably not over the next couple of weeks maybe, who knows, but it could happen at some point in the future because of the European situation. In a sense what I am reaching towards is to try and get your views on would a written or codified settlement be a protection for Parliament to have a serious role in debates about the European Union and, if people did not wish to go further into the European Union or did not wish the terms to change, that Parliament, rather than the executive, would have a serious role in that process, not an exclusive one but a serious one, which arguably is not the case at the moment? Would codification help in that problem?
Professor Gordon: Haven’t we seen the parallel process taking place with treaty ratification, for example? We do not have a constitution but we have a law and it seems to me that a constitution, because of the legitimacy model that I have mentioned, would make that protection stronger. Firstly, you need the provision for involving Parliament and, secondly, is that provision more effectively secured through an ordinary Act of Parliament or through a constitutional Act of Parliament? That is as far as we can go. You cannot have a written constitution, the one I proposed, that would abolish parliamentary sovereignty. I think it is just unrealistic at this stage. It is what I want eventually but we could not have it at this stage. So what Parliament will be doing is creating, as many countries have done, a Bill of Rights or a constitution, and one of its provisions would provide for the strengthening of Parliament’s role generally within this constitutional framework, including its surveillance over the EU, for example. So, yes, I think it would help.
Mr Benn: I think what is important is the debate rather than the actual written constitution. If the issues we have been talking about are made central in the debate then people will be deciding whether they do want to be governed by some external body or by the people they know and can remove and who listen to them. I think that is the most important thing. Whether we can look to a rounded constitution now, however the moment may come, is a bit of an illusion. But I think out of that discussion will come some interesting public debate that will shape opinion and will safeguard our own interests as a nation and responsible country in the world but still as somebody whose job it is, like every Government, to protect its own people.
Q149 Chair: I would just add that my view of parliamentary sovereignty is not that a Prime Minister says to Parliament, "Unless you do what I want or what I have signed up to or what I have agreed with President Bush, the Government will fall or civilisation as we know it will collapse or the markets will rip our economy apart. So follow me and vote this way". I do not regard that as parliamentary sovereignty. You could argue that is Parliament giving its endorsement on all three of those issues. We have had examples of that over the last 10 years, but I do not regard that as Parliament setting out its view, having a sensible debate and working through the issues. Of course, there has to be executive power but really what I am feeling towards is how do we define an effective role for our Parliament that gives it a genuine sovereignty, a genuine involvement even in a minor way? We have seen some of the Nordic Parliaments debate issues before their Prime Ministers go off to summits, not after and receiving a report and having this blackmail of, "Either you follow me or the world collapses". Isn’t there a way we can devise that so, in a sense, maybe putting off the moment when constitutional change happens?
Mr Benn: If Europe decided to force this country to have a general coalition and appoint the Prime Minister, as in Greece and Italy, then I think people would see that as such a big thing that-
Q150 Chair: That could be a moment where we said Parliament has that decision, not Mrs Merkel and Mr Sarkozy.
Mr Vibert: Just to go back to the Parliament and referendums, it is worth remembering the deep aversion in Germany to having referenda. Of course, it goes back to the 1930s and referenda can be manipulated by executives. So I think any constitution that provides for referenda, as I think it would have to do, would have to guard against manipulation by the executive. Therefore, this opens a role for Parliament in deciding whether to call a referendum, on what terms and possibly even what the question might be.
Q151 Chair: Would that also apply to the media? We are undergoing this experience at the moment of e-petitioning in the House of Commons, which I think owes more to the editorial meetings in the Daily Mail and the Sun than individual Members coming up with bright ideas. Is there a role for how the media needs to play a significant and important part in the constitution?
Mr Vibert: I think it is very difficult at the moment to define a role for the media because the whole media scene is changing. Traditional media are basically disappearing down the tubes and new types of communication are being formed. I think one of the problems with the new forms of communication is that it fractures opinion as much as it seems to bring it together. If you look at, say, reasons why we have the True Finns in Finland or the Tea Party in the United States, part of it is due to a different style of communication between groups, which owes itself to the new media rather than old media. So there is a totally different set of issues there.
Q152 Mr Chope: Wouldn’t it be right to say the True Finns emerged as a powerful force because none of the existing political parties were reflecting the wishes of a significant proportion of the population, who then started responding very positively to the message from the True Finns? That is really what happened there, isn’t it? Nothing to do with-
Mr Vibert: Certainly that is the trigger, but then the question is how do such groups organise, and these days they tend to organise, as Finland organises, through the mobile phone.
Q153 Mrs Laing: My alarm bells were ringing when Frank talked about the manipulation of referenda. This is something that I have personally gone on and on about for as long as I can remember. Would you say that it would be essential for a referendum to be taken seriously? Even more so than that, would it be necessary for a referendum to have any serious effect for the question in a referendum to be decided by a body such as the Electoral Commission, which is non-party political, and that there should be a cap on the amount of spending that a campaign in a referendum can make?
Professor Gordon: On the latter point, I am very anxious, if at all possible, to avoid campaigning on the proposals for a constitution. I cannot see how it is going to happen otherwise, unless it is presented as something for which there is cross-party support. I completely agree, however, with Frank’s point, that you do need many safeguards to avoid manipulation. So I agree with you that the Electoral Commission could play a huge part. I also think that the safeguard of having Parliament dictate the format and questions is a very sensible one and that should attract cross-party support.
It seems to me that ultimately you come back to the same question: how do you persuade the executive that they should have a written constitution? That is the practical question. Answer: by proposing relatively low-key reforms but proposing those reforms that have cross-party support, being prepared to trade some principles if they are policy principles rather than constitutional principles but, above all, getting it enforced, because once it is enforced it will acquire legitimacy and people will start thinking much more constitutionally than they ever have in this country.
Chair: Colleagues, thank you, witnesses too, Richard, Tony and Frank. That has been a very interesting exchange and it is also one that has great relevance, I think, as things are unfolding in Europe and some of those transformative powers, powers migrating. That clearly is happening to some degree, often without legitimacy, or whether there are moments where it looks like there is more of a need for constitutional change than at other times. Those moments may well be appearing on our radar very, very shortly.
Although this appears at first sight to be dry and long term, there is a degree of topicality and urgency about our consideration about safeguarding and enhancing certainly the role of this place and the role of our democracy. It was a fascinating morning and, of course, gentlemen, if you wish to drop us any further notes on any other thoughts that you have on the train back home, we would be very grateful to receive them. Thank you so much for your time this morning and thank you to the Committee members for an instructive set of questions this morning. Thank you all.