I feel as bit as if I have been run over by a bulldozer after reading Gavin Phillipson’s blog about House of Lords reform. It assumes that all opponents of the Government bill on Lords Reform are unthinking and /or stupid. Given that some very eminent commentators without political axes to grind as well as some sensible politicians – and there are some! – opposed the proposals, this does not seem to me to be a convincing starting point.
Let us remember just a few basic points.
- Most other countries with second chambers are federal: the members of their second chambers represent the members of the federation and have particular responsibilities for protecting and representing the interests of the states in the federation as set out in their Constitutions. This is not the position in the UK.
- Comparisons with other countries with elected second chambers can only take us so far: they all have written constitutions, most of which give their courts or court-like bodies (unelected of course, but legitimate) the power to decide, post-legislatively, upon the constitutionality of laws passed by their legislatures, and indeed in many cases to consider and make recommendations by way of ‘preview’ about the quality of drafting, the evidence base for policy proposals etc.
- In the absence of such extra-parliamentary checks, the UK relies strongly on intra-parliamentary ones: the Joint Committee on Human Rights, the House of Lords Constitution Committee, the House of Lords Delegated Powers and Regulatory Reform Committee, the Merits Committee and others do these jobs very well. This is because of the kinds of people who are members of these committees.
- I do not believe that enough elected members of a reformed second chamber would be as good at these very important functions as current members of the House of Lords engaged in this work are.
- The parties are likely to choose as their candidates those with political records e.g. in local and regional/national government, not people with the experience needed for these functions.
- And I do not believe that 20% appointed members could be counted on to do the job as well or have the same influence on its doing as current cross benchers.
- The combination of elected and appointed members proposed in the draft bill would not produce a system of scrutiny and checks on government as good as or better than the present arrangements as they operate in practice.
- Thus going over to a largely elected composition in the second chamber risks throwing the baby out with the bathwater.
- So comparisons with other countries, though superficially attractive, can be misleading.
- These points do not imply that the present arrangements in our second chamber are satisfactory. The House of Lords is far too large, the continuation of hereditary members is completely inappropriate, appointments are made in exercises of unregulated patronage by the Prime Minister and leaders of the parties, and many members of those appointed do not have useful experience or expertise to bring to the work done in the chamber. Unless and until the House becomes elected these matters ought as a matter of urgency to be rectified.
- One solution might be for the UK to adopt a written constitution that would (i) enable a court or courts to take on the function of constitutional scrutiny of bills or Acts, (ii) establish a body akin to the French Conseil d’état that would scrutinise bills for drafting etc and (iii) put in place an elected second chamber.
- But adoption of a written constitution for the UK is not going to happen in the foreseeable future. As Sebastian Payne argued in his recent blog, the time is not ripe.
- Meanwhile reform of the devil we know that works well is preferable to replacing it with a devil we do not know that might look like an angel but be unable to carry out the functions which need to be done within Parliament as they cannot be done elsewhere under our current arrangements.
Dawn Oliver is Emeritus Professor of Constitutional Law at University College London.
Suggested citation: D. Oliver, ‘Response to Gavin Phillipson on Lords Reform’ UK Const. L. Blog (26th September 2012) (available at http://ukconstitutionallaw.org