As if the Government did not have enough to cope with in House of Lords management as a result of the debate over the constitutional propriety of the Public Bodies Bill (see Opinion, Public Bodies Bill sparks constitutional debate) they have now run into more trouble of a similar kind. Having whipped and guillotined the Parliamentary Voting System and Constituencies Bill through the Commons, they might have hoped that it would have picked up sufficient momentum to make relatively trouble-free progress through the Lords as well. Any hopes of that will by now have been thoroughly dashed.
Not only has the new Bill run into the same kind of opposition from the Constitution Committee as the Public Bodies Bill, but its Second Reading attracted so many to the speakers’ list that an unusual two-day Second Reading became necessary, to say nothing of a spirited attempt to hijack the Bill altogether with a challenge on grounds of hybridity.
The Bill deals with two aspects of the Government’s agenda for constitutional reform: it prepares for a referendum on the voting system for Parliamentary elections and it makes provision about numbers and boundaries of Parliamentary constituencies. The Government have imposed urgency on themselves by undertaking to hold the referendum in May 2011 and to have the new arrangements in place for the next General Election.
It is this speed which is principally criticised by the Constitution Committee in its 7th Report of Session 2010–11 (HL Paper 58). The Committee point out that the urgency is self-imposed by the Government, and that despite the fundamental nature of the reforms proposed there was no formal system of pre-introduction consultation by White Paper or otherwise. (The absence of formal consultation is certainly strange for a fundamental constitutional change of this kind, particularly in the context of the modern mania of Governments of all shades for public consultation on even some of the most trivial proposed changes of law or administration.)
The Committee reserves its substantive criticisms for the second Part of the Bill, on constituencies. There too, however, it is the lack of considered process that they focus on: so, for example, at para.29 they report that:
“We conclude that the Government have not calculated the proposed reduction in the size of the House of Commons on the basis of any considered assessment of the role and functions of MPs.”
Similarly, at para.36. they report that:
“We conclude that the Government have not made a proper assessment of the impact which the reduction in the size of the House of Commons may have on the relationship between the executive and Parliament. This is an unsatisfactory basis on which to embark on fundamental reform of the legislature. We are concerned that the Bill could possibly result in the Executive’s dominance over Parliament being increased.”
So in essence the Committee’s principal complaints about the Bill are that the necessary preparatory work has not been carried out.
That is always a dangerous position to be in as one approaches the Lords stages of a Bill. Due process and following good governmental procedures are always something of specialist subjects in the Lords, and there is no shortage of peers who will be prepared to obstruct even the worthiest of measures if they are uneasy about how it is being taken through. The two-day Second Reading debate, however, showed that procedure apart the Government are going to face some serious substantive opposition, and are unlikely to get through Committee stage without a substantive defeat or two. Of course, the Whippable Commons majority can reverse any damage done by the Lords, but it all takes time and shows cracks in the fabric of the Bill that may be important if (or more likely when) the battle moves from Parliament to the courts by way of administrative law challenges to actions taken under the eventual Act.
That there is no lack of appetite for a prolonged fight using all possible (and some impossible but troublesome) weapons was apparent from the motion to refer the Bill to the Examiners on grounds of possible hybridity. The former Lord Chancellor Lord Falconer of Thoroton fronted this particular part of the campaign, and the Government will have drawn little long-term comfort from having defeated the motion by such a narrow margin (210:224); considering that the motion might have been seen as a bit of a try-on (and was pretty much described as such by a number of influential speakers) in the face of unequivocal advice from the Clerks in both Houses that the Bill was not hybrid, the strength of the minority vote can be seen as less about the intricacies of hybridity and more as an expression of strength of feeling about the Bill and the manner of its handling by the Government generally. Lord Howarth of Newport’s opening to his Second Reading speech:
“My Lords, the coalition kids are trashing Parliament”
may have been unusually blunt even for today’s House of Lords, but it was by no means out of touch with the strength of feeling from a number of other speakers.
Like the Public Bodies Bill, therefore, it seems we have just seen the opening skirmishes in what could prove to be a protracted and messy war, with considerable long-term constitutional impact. We will keep you informed!