Mike Gordon: Time for a Citizens’ Assembly on Lords Reform?

After the collapse of the coalition government’s House of Lords Reform Bill in August, the UK Parliament’s upper chamber remains resolutely unreformed.  The substance of this most recent attempt to complete the process of reform which commenced with the first Parliament Act in 1911 has been examined in detail by a Joint Committee on the Draft Bill, in recent contributions to this blog, and elsewhere.  For some, although certainly not all, the demise of the Bill is not to be lamented, yet the reasons for this vary substantially.  Almost every element of the Bill has been criticised by someone, somewhere, with it being surprisingly difficult to identify a key overriding deficiency of the proposed reform (although clause 2, which provided that nothing in the Bill would affect the primacy of the House of Commons is perhaps the leading contender for most frequently considered flaw).  The failure of this attempt at reform thus had an air of inevitability about it, fulfilling the prophecies of the many commentators who confidently predicted that the Bill would not attract sufficient support to progress through Parliament.

The primary purpose of this post is not, however, to reconsider the merits and/or demerits of the Reform Bill.  The innovations proposed in the Bill have already been thoroughly evaluated, perhaps with the exception of the sheer length of time the government’s reform plan would have taken to implement, with three new intakes of elected members envisaged over the course of three general elections.  Indeed, a staggered transition to the new arrangements, with reform of the Lords potentially incomplete until 2025, would in my view have engendered unnecessary uncertainty in relation to the legitimacy of the interim chamber(s), and unduly delayed the development of a distinct political culture and working practices appropriate to the reconfigured house.  And, of course, a three stage process would have left future governments with two convenient opportunities to ‘pause’ reform prior to its conclusion, potentially transforming interim arrangements into a more enduring state of affairs as is almost traditional in relation to the Lords.

Nevertheless, the purpose of this post is to suggest a way forward.  While it has been argued that this most recent proposal represented a once in a generation chance to reform the House of Lords, this seems likely to have been rhetoric rather than reality.  Lords reform has already proved to be an issue of remarkable resilience, remaining a matter of debate for over a century.  All three major UK political parties now accept that the Lords is in need of reform, and committed to bringing about change in their 2010 manifestos (distinguishing this issue markedly, for example, from the also failed attempts to reform the voting system for elections to the House of Commons).  Further, the possibility of Lords reform being re-employed as a bargaining chip between potential coalition partners cannot be discounted.  This is especially the case in an era when a pluralist approach to politics, filtered through a first-past-the-post voting system designed to cater for two parties, leaves the prospect of future hung parliaments more rather than less likely.

Yet even if a need for reform of some kind is accepted in principle, have politicians, academics and other interested parties reached the point of fatigue with respect to the detail of reform of the House of Lords?  The volume of material produced might suggest not, yet as the failed proposals, committee reports, and academic commentaries mount up, it becomes ever more difficult to see how progress which is satisfactory to a large enough contingent can be achieved.  Appeals to international experience cannot in and of themselves offer a clear way forward, due to the diversity evident when the composition and powers of elected second chambers around the world are compared.  How might we move, then, from the wealth of solutions that we presently have, to decide definitively how to put the upper house in order?

One way in which this objective might be achieved is to focus on the methodology of constitutional reform, rather than the substance of the reform itself.  In circumstances of disagreement about the desirability of competing visions of a reconfigured House of Lords, the major political parties could together commit to resolve this disagreement by democratic means.  The Joint Committee on the Draft Bill proposed that a shift to an elected House of Lords was of such constitutional significance as to require that a referendum be held to approve the change.  Yet the three main political parties could go further, and commit to convene a citizens’ assembly after the next general election to settle the issue of Lords reform decisively.

Citizens’ assemblies have been used in a number of countries in recent years to assess options for specific constitutional reforms, and make recommendations which can then be put to the general public for further consideration, and potentially, approval at a referendum.  Citizens’ assemblies were established in Canada to consider electoral reform at a provincial level, in British Columbia in 2004 and Ontario in 2006, with referendums subsequently held (two in the case of British Columbia) giving the electorate the opportunity to accept or reject the assemblies’ proposals.  The Canadian assemblies were comprised of citizens selected at random from the electoral register, with adequate representation of geographical regions, men and women, and aboriginal people ensured.  Further, at a national level, a Civic Forum on electoral reform was convened in the Netherlands in 2006, which was also composed of randomly selected citizens.  This Civic Forum was, however, tasked with making recommendations to the Dutch government, rather than directly to the people via a referendum, in contrast with the two Canadian assemblies (on these citizens’ assemblies generally see G. Smith, Democratic Innovations: Designing Institutions for Citizen Participation (CUP: 2009), Ch 3).

Similar methodology is also imminently to be used in Ireland, where a constitutional convention, with two-thirds of the members to be citizens selected at random, is to be established to consider a number of specific constitutional issues (including the reduction of the Presidential term of office to five years, reducing the voting age to 17, and reviewing the Dáil electoral system) and report to the Houses of the Oireachtas.  Interestingly, for present purposes, the convention will not consider reform of the Irish Seanad, with a referendum on abolition of the upper house instead to be held in the latter half of 2013.

Finally, and most boldly, in Iceland citizens were chosen to form a Constitutional Council to draft a new revised constitution for the state in the aftermath of the 2008 financial crisis.  Following a larger National Assembly held in 2010, which involved a significant number of randomly selected citizens reflecting on the core values underpinning the Icelandic constitutional settlement, a smaller group of 25 citizens were tasked with producing a new constitution, relying extensively on the internet to canvass the views of members of the wider public.  These citizens were selected originally via an election to a Constitutional Assembly, distinguishing this example from those considered above, but this was subsequently invalidated by the Icelandic Supreme Court on technical grounds, leading to the formal appointment by the government of the same ‘elected’ individuals to a Constitutional Council (on the process of reform in Iceland generally see T. Gylfason, ‘From Collapse to Constitution: The Case of Iceland’ CESIFO Working Paper No. 3770, June 2012, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2034241).  Having been considered by Althingi, the Icelandic Parliament, six questions relating to the draft constitution will now be put to a referendum of the people of Iceland in a matter of days, on 20th October 2012.

This necessarily brief sketch is intended simply to demonstrate that citizens’ assemblies (whether comprising of members selected at random or by election) can be, and increasingly have been, employed to consider both specific and general constitutional conundrums.  Such assemblies can be tasked with assessing a variety of alternative solutions, drawing on appropriate expert support and the views of the general public, and ultimately making recommendations for evaluation and approval in the polity at large.  The virtues of such citizen-led deliberation are that it enables a broader range of perspectives to be considered in a public space designed for informed reflection, while enhancing the authority and legitimacy of the proposals developed, which are untainted by any general disillusionment with professional politicians.  As such, and perhaps crucially in relation to the problem of the House of Lords, a citizens’ assembly could be used to bypass deadlock or intransigence among political elites, and provide fresh impetus for constitutional reform.

Of course, the utility of citizens’ assemblies should not at this stage be overstated; they are not necessarily a panacea for all constitutional ills, and while such mechanisms have obvious classical democratic origins, are only gradually re-emerging as a tool which can be used for the implementation of contemporary constitutional reform.  Further, the use of a citizens’ assembly to develop proposals for reform does not guarantee that successful reform will actually be the result, as the Canadian examples clearly demonstrate.  In light of this, the result of the imminent Icelandic referendum will be of great interest to those who find the idea of citizens’ assemblies attractive in principle.

Nonetheless, in relation to Lords reform in the UK, a citizens’ assembly could potentially offer a very useful democratic solution to a problem politicians have been unable to resolve, as well as a normatively appealing way of increasing popular engagement with constitutional issues in its own right.  And if the key objection to the continued existence of the House of Lords is its undemocratic nature, it would be apt for the future of the upper chamber to be settled by a group of UK citizens, potentially subject to the approval of the entire electorate at a referendum.  The time seems right for the UK to experiment with such an approach to constitutional change, and convene a citizens’ assembly to try to solve the problem of Lords reform once and for all.

Dr Mike Gordon is Lecturer in Public Law at the Liverpool Law School, University of Liverpool.

Suggested citation: M. Gordon, ‘Time for a Citizens’ Assembly on Lords Reform?’   UK Const. L. Blog (17th October 2012) (available at http://ukconstitutionallaw.org)

1 Comment

Filed under Comparative law, Constitutional reform, UK Parliament

One response to “Mike Gordon: Time for a Citizens’ Assembly on Lords Reform?

  1. Dawn Oliver

    The case for a Citizens’ Assembly is attractive and it is put very elegantly by Dr Mike Gordon. But I very much doubt whether it would resolve the question of House of Lords Reform in the UK once and for all. The prime minister of British Columbia undertook to implement the CA recommendations if they were endorsed in a referendum. Unless the UK Prime Minister were to do the same the outcome of a CA would be in the air. If the UK PM made such an undertaking it could obviously not bind the next PM or indeed the UK Parliament.

    The referendums following the Canadian CAs did not endorse the proposals made by those Assemblies. If a CA in the UK were to come up with proposals that were rejected in a referendum so that there was no change, the issues would remain unresolved. If the CA came up with proposals for elections to the HL and these were accepted in a referendum, it does not follow that the government and the two Houses would accept them.

    The fact of the matter is that on complex issues such as Lords reform every individual voter and every member of each House has to go through a learning process before s/he can reach a thought out view. So there is no reason to assume that voters will feel that they should accept the proposals of an apolitical CA any more than the public felt covinced by the recommendations of the Royal Commission on Reform of the House of Lords in 2000.

    A major problem is that people focus on the composition of the second chamber rather than on its relations with the executive and the Commons and its functions and how it discharges them. The ways in which these relationships operate at present and the ways in which the second chamber performs its functions are broadly supported by the public and the parties. The general assumptions are that an elected or largely elected second chamber would have the same relationship with the executive and the Commons as the present one and that it would discharge its functions at least as well as the current House does. Those assumptions are false. And they raise knock on issues including: should new non political bodies be invented to perform the functions – scrutiny of bills and draft bills, for instance – of the second chamber if that chamber were elected?

    We are entering into a period where the future of the United Kingdom and in particular the future of Scotland are live issues. If Scotland were to become independent the composition (and perhaps the functions) of the second chamber would have to be reviewed. If Scotland were to stay in the union but acquire devo-max powers, the role of the second chamber might change: it may be required to take on special responsibility for representing the interests of Scotland – and of Wales and Northern Ireland, and perhaps the English regions. That might in turn affect its composition. In other words determination of the future of Scotland will result in new issues coming to the top of the UK’s political and constitutional agenda.

    We are not in a constitutional moment for radical reform of the second chamber, and a Citizens’ Assembly would not create such a moment.

    Dawn Oliver

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