Dawn Oliver: Response to Gavin Phillipson on Lords Reform

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. Thus going over to a largely elected composition in the second chamber risks throwing the baby out with the bathwater.
  9. So comparisons with other countries, though superficially attractive, can be misleading.
  10. 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.
  11. 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.
  12. 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.
  13. 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

5 Comments

Filed under Constitutional reform, UK Parliament

5 responses to “Dawn Oliver: Response to Gavin Phillipson on Lords Reform

  1. Gavin Phillipson

    I’m gratified to get so speedy and substantial a response to my post, but fear there has been some misunderstanding. My starting point is certainly *not* that anyone who opposed the Bill is “unthinking and or stupid” and I don’t think I said or implied that. What I was concerned to do was to deal with the arguments that I heard repeated over and over again during the reform debate, which seemed to be the main source of hostility to the proposals, but which I find unpersuasive, for the reasons I gave. The rather different arguments that Dawn Oliver puts forward are much better and more thoughtful ones, and bring us to the heart of the worthwhile argument to be had about Lord’s reform. I would take minor issue with some of them, but my “bigger picture” response is as follows.

    Essentially, the Lords as it is does some very good work, but much of it goes to waste, in the sense of being ignored by government, because of the House’s lack of democratic legitimacy. Moreover, many of us believe that its wide-ranging legislative role (much wider incidentally than those of the constitutional courts Oliver mentions) does require some democratic legitimacy. The paradox of Lords reform is that if one reforms the House democratically in order to boost its legitimacy and give its work more practical effect, one risks (as Oliver argues) losing the very qualities that make its current work valuable. That is why I believe the hybrid model is the answer: it seeks to boost legitimacy substantially while retaining enough of the current value of the Lords to maintain the good quality of its work. I do, however find a fair amount of force in Dawn Oliver’s position, and that is why I argued in my Public Law article for a 60/40 elected/appointed chamber, to ensure that there were indeed enough members with sufficient experience, expertise and independence to do the good work now done by some peers now, particularly on the Committees Oliver cites. An 80/20 split leaves the benefits and risks of reforms more finely balanced, though still in my view favouring reform; however a fully elected House would tip the balance too far in favour of legitimacy and away from the qualities of independence and expertise that both Oliver and I value in the current House.

  2. The Bill has gone – in my view thankfully. Nevertheless, your 13 points are interesting.

    Point 1 – the UK is perhaps not as far off being a “federation” as some think. Devolution has brought this about. Indeed, with political imagination, it could be a solution to the Scottish independence issue.

    Point 2 – I agree. Many countries put a court in a position to declare / override certain legislation on constitutional grounds. One way to minimise such overriding is to allow some form of court to preview matters identified as controversial.

    Point 3 – Regrettably, the reports of the committees are all too often largely ignored by Ministers when such ministers are confident that they can ram through legislation with the aid of the party faithful.

    Point 4 – agreed

    Point 5 – most definitely

    Point 6 – Inclined to agree but would depend on who the 20% happened to be

    Point 7 – Inclined to agree

    Point 8 – Agreed – the Bill failed to convince that it would improve legislation or scrutiny of government

    Point 9 – Very hard and not always helpful to make comparisons with other countries – systems of government are invariably complex with internal dynamics which are not easy for outsiders to be fully aware of

    Point 10 – Could not agree more – a much simpler Bill could achieve all of this including removal of Bishops

    Point 11 – Is a written constitution needed for this?

    Point 12 – agreed – it won’t come for a long time – a written constitution would be much harder for politicians and people such as the Cabinet Secretary to manipulate. (Recall how Cabinet Secretary Memo prepared way for this coalition)

    Point 13 – agree but however one reforms it, there will not be any angels!

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