Tag Archives: Constitutional Reform

Graham Allen: Kick-starting the debate on a codified constitution for the UK

Graham AllenDoes the United Kingdom need a codified constitution? It’s a question on which generations of law students will have had to write essays, burning the midnight oil and scribbling or tapping away into the night, rehearsing the pros and the cons. But I want it to be something else: the start of a lively and passionate public debate that could result in real change to our country’s democratic set-up.

Parliament’s Political and Constitutional Reform Select Committee, which I chair, has just launched a major consultation which aims to do just that—get people to think properly for the first time about whether having the political rulebook written down in one place might actually be a positive development for our democracy.

Example constitutions

The consultation follows on from a unique four-year project which has seen the Committee working collaboratively with King’s College London. At the end of July, we published the results of this work in a report called A new Magna Carta? The report represents the most comprehensive attempt to date to provide different detailed models of a codified constitution for consideration and comparison. It includes three illustrative blueprints that show what form a codified constitution could take:

  • A constitutional code: a document sanctioned by Parliament, but without statutory authority, and which would set out the essential existing elements and principles of the constitution and the workings of government.
  • A constitutional consolidation Act: a consolidation of existing laws of a constitutional nature, the common law and parliamentary practice, together with a codification of essential constitutional conventions.
  • A written constitution: a document of basic law by which the United Kingdom would be governed, setting out the relationship between the state and its citizens, including an amendment procedure and some elements of reform.

There have been previous attempts to produce illustrative constitutions for the UK. Among the notable examples are O. Hood Phillips QC (1970), Lord Hailsham (1976), Frank Vibert (1990), John Macdonald QC (1990), Tony Benn (1991), and the Institute for Public Policy Research (1991). Professor Robert Blackburn, who created the blueprint constitutions on the Committee’s behalf, has drawn on some of these previous attempts, and in presenting different options he has moved the debate forward. The blueprints can be regarded as standalone documents, in the sense that each is an example of a particular approach to codifying the constitution, or as three stages, resulting in a fully codified constitution.

The process of codification

In addition to the blueprints, the report contains a paper setting out the process that could be adopted in the preparation, design and implementation of a codified constitution. Using the three blueprints, the paper suggests that different models of codification would require different processes. The paper recommends that in the case of the constitutional code, “the Cabinet Office prepare a first draft of the document, building on its pre-existing guide to the law, conventions and rules on the operation of government set out in its Cabinet Manual.” For the Constitutional Consolidation Act, the paper recommends “it would be appropriate for the purpose and scheme of the proposal, together with the reasoning behind it and any problems and issues to be settled, to be set out in an initial Green Paper, inviting public and parliamentary response.” The suggestion is then that the Government ask the Law Commission to carry out the task of consolidation. In a letter to Professor Blackburn, Sir David Lloyd Jones, the Chairman of the Law Commission of England and Wales wrote: “the task of bringing together in one statute, and modernising the language of, various provisions of existing statute law relating to constitutional matters is one for which, in principle, the Commission would be well suited.”

In the case of a fully-fledged written constitution, the paper suggests that “the most suitable way forward would be for a Commission for Democracy to be set up under ministerial authority for the purpose, following cross-party talks reaching consensus on its general aims, form of composition and method of working.” Its initial task would be to draw up a written constitution, which would then be subject to political and popular approval. But a Commission for Democracy could also be a permanent part of our society, with a remit to improve the quality of our political democracy and enhance engagement.

Why now?

Of course, an essential pre-requisite to any of these processes would be cross-party agreement that codification was necessary. I believe that that agreement might be closer than people think. This is a very opportune moment to be revisiting and revitalising the debate on codification. We are living through a period of considerable constitutional change. During the past 20 years, under Governments of different political stripes, significant developments have included the removal of most hereditary peers from the House of Lords, freedom on information legislation, the establishment of the Supreme Court, the introduction of fixed-term Parliaments, and the domestic legal entrenchment of human rights. There has been devolution in Scotland, Wales and Northern Ireland, but there is still suffocating over-centralisation in England, with local government acting merely as the delivery arm of central Government. The United Kingdom itself is under stress. We’ve also had our first collation Government in recent times. Some constitutional flexibility is a good thing, but I believe it’s also important that people have somewhere to go where they can find and understand the country’s constitutional arrangements—the framework within which change is taking place.

Evidence of disengagement with mainstream politics is all around us. It can be seen in turnout rates for recent elections and the rise in support for what is essentially an anti-politics party. People don’t feel that politicians represent their views or understand their lives. But I don’t think people are apathetic about politics. They care passionately about local and global issues. They just feel that the world of mainstream politics is remote, inaccessible, and frankly sometimes incomprehensible.

A codified constitution wouldn’t solve all these problems. But it would be a start. It would mean that for the first time in the history of our country people would be able to go to one document to find the rules that govern how the state exercises power in our democracy. I hope that, in time, the constitution would become a tangible source of national pride. Every school child would know where to find it.

Consultation

The Select Committee’s consultation, which runs until 1 January 2015, is asking people firstly for their views on whether the UK needs a codified constitution. It then asks for feedback on the three blueprint constitutions that we have published. We are also interested in hearing what people think should be included in or excluded from a codified constitution and their views on the paper about the process of creating a codified constitution. Responses can be submitted via our website: www.parliament.uk/new-magna-carta-consultation They can be as short as a few sentences or as long as 3,000 words, and they can focus on one aspect of the debate, or many. We’ll be publishing the responses we receive as written evidence on our website as the consultation progresses, so there will be a chance to see the contributions that have already been submitted. After January, we will be working on a report so that we can present the responses to Government ahead of the general election.

Alongside the consultation, the Committee is running a competition to write a rousing 350-word preamble to a codified constitution for the United Kingdom. My attempt is available to read on our website, along with other entries we have received. I’m sure that, as constitutional lawyers, you’ll be able to do a better job than I did and I urge you to have a try. Entries can be submitted via our website: www.parliament.uk/pcrc-preamble

As we approach the 800th anniversary of Magna Carta, this is a once-in-a-lifetime opportunity to shape the future of our democracy—to look forward, as well as back—and to have your say on what the next 800 years should look like. Please read our report on A new Magna Carta? and take this chance to get involved.

 

Graham Allen is Member of Parliament for Nottingham North, and Chair of the Political and Constitutional Reform Committee.

Suggested citation: A. Allen, ‘Kick-starting the debate on a codified constitution for the UK’ U.K. Const. L. Blog (14th August 2014) (available at http://ukconstitutionallaw.org).

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Andrew Le Sueur: Imagining judges in a written UK Constitution

Andrew Le SueurThe tide of interest (among those who care about these things) in the idea of a written, codified constitution for the United Kingdom rises and falls. At the moment the tide is quite high, but certainly not high enough to flow into the estuaries of government policy making.

In 2010, Richard Gordon QC —a public law scholar-practitioner at Brick Court Chambers, London —wrote a book length blue print for a codified constitution (though expressing himself tentatively in terms of aiming to stimulate a debate). In Repairing British Politics, he rejects parliamentary supremacy as a defining principle and envisages judges having broad and deep powers to enforce the constitution. As my Essex colleague Anthony King put it in a review of the book: “By implication — and notwithstanding a passing reference to ‘the available resources of the State’— unelected judges would even have the power to order other authorities to provide citizens with the aforementioned food, water, clothing, housing and free health and social care services”.

Meanwhile, across the road at the LSE, Conor Gearty is leading a “trailblazing project that invites members of the public to participate in, offer advice on and eventually to draft a new UK constitution through crowdsourcing”. On Thursday 26 June 2014, the project will be hosting a “Constitutional Carnival”when “All those involved in the project, and many others joining for the first time, will be invited to come together to have their say on what should be included in a UK constitution”. One session will be on “Where should judges fit in a written constitution?”. It will be interesting to see what emerges.

The latest contribution to the debate comes today from the House of Commons Political and Constitutional Reform Committee, which publishes its report on Constitutional role of the judiciary if there were a codified constitution (14th report of Session 2013-14, HC 802). Chaired by veteran Labour MP Graham Allen, this cross-party select committee has been toiling away since it was set up in June 2010 “to consider political and constitutional reform, scrutinising the work of the Deputy Prime Minister in this area”. Two major planks of Nick Clegg’s agenda have fallen off the lorry since then: House of Lords reform and an alternative vote electoral system for the House of Commons. With time on its hands to mull over the bigger picture, the PCRC launched a wide ranging inquiry in September 2010 on “Mapping the path to codifying — or not codifying — the UK’s Constitution”, supported by researchers at the Centre for Political and Constitutional Studies at King’s College London. Today’s report on the role of the judiciary is one aspect of that inquiry.

The PCRC’s report starts by acknowledging that the British judiciary already have a role in relation to constitutional matters, quoting examples I gave in my written evidence:

determining legal disagreements about the respective powers of different institutions within the constitution, for example between the UK Parliament and the UK Government, or between the central and local government;

dealing with legal questions about the division of powers between the UK and the European Union, under the guidance of preliminary rulings by the European Court of Justice;

adjudicating on legal questions about the exercise of powers by executive and legislative institutions in Scotland, Wales and Northern Ireland in accordance with the devolution settlements created by the UK Parliament;

protecting fundamental rights of individuals, including those in the Human Rights Act 1998, taking into account the case law of the European Court of Human Rights. […]

judicial review of executive action and delegated legislation, ensuring that public bodies remain within the powers conferred on them by Acts of Parliament and operate in accordance with judge-made legal principles of (for example) fairness and rationality.

The report goes on to “welcome the fact that the Constitutional Reform Act 2005 enshrined judicial independence in law”.

From there, however, the committee feels unable to say much more about what would change, in relation to the judiciary, if there were to be a written constitution:

The role of the judiciary would undoubtedly change should the UK adopt a codified constitution, but the precise nature of that change will be difficult to assess until there is an agreed definition of the current constitutional role of the judiciary. In our terms of reference we set out to explore the current constitutional role of the judiciary but this needs further work.

That’s quite right. There are a number of different ways in which the British constitution could be “written”and each model —including a non-legal constitutional code, a consolidation Act bringing together current statute law on the constitution into a single enactment, and a full blown constitution —would have different implications for the role of judges.

Having rehearsed some well trodden pros and cons of parliamentary supremacy (and whether it should or indeed could be retained in a written constitution), the PCRC expresses interest in the idea (which I share) of a “declaration of constitutionality” modelled on similar lines to section 4 of the Human Rights Act 1998, which would give courts power to declare that an Act of Parliament is inconsistent with a norm of the constitution without striking down the offending provision. It would then be left to government and Parliament to decide how to respond.

In a statement that will I’m sure provide inspiration to setters of undergraduate essay questions in years to come, the committee states “Before the UK could move towards a codified constitution there would need to be a precise definition of the ‘rule of law”’. I am not sure that is right: arguably, the committee gets this back to front. A better way of understanding the umbrella concept of the rule of law is to say that it includes what is written down in a constitution.

Sharing a view previously expressed by the House of Lords Constitution Committee, the PCRC shows little appetite courts having power to undertake  pre-enactment review of legislation. Nor is there much support for setting up a specialist constitutional court: based on the evidence received (including mine), the report concludes that “the Supreme Court could adjudicate on constitutional matters”.

All in all, it is difficult to resist the view that the PCRC’s report is a damp squib on the big issues. It offers little new on the key question of whether parliamentary supremacy could or should be retained under a new constitutional document. To be fair, it is unrealistic to expect a cross-party select committee, midway through a larger inquiry, to say much more on this contentious issue. In the press release accompanying today’s report, the committee’s chair Graham Allan is quoted as saying “The Committee expects to publish the results of its wider inquiry into codifying, or not codifying, the UK’s constitution in the summer.” Let’s see.

In my written evidence to the committee I argued for political realism in the debate about the role of the judiciary. I said that, thinking about the topic of judges in the constitution generally, it is possible to envisage a range of possible roles.

At the maximalist end of the spectrum would be a design that (for example) empowers the judges to adjudicate on the constitutionality of Acts of the UK Parliament with a remedial power to quash Acts that are incompatible with the UK Constitution; the UK Constitution might also include legally enforceable socio-economic rights (to health, housing, education and so on); there might also be ‘abstract’ judicial review of bills before they receive Royal Assent. A design of this sort would involve a shift in the balance of power to decide matters of national interest away from the UK Parliament and Government towards the courts.

A minimalist design of the judicial role in the UK Constitution would not give the courts power to quash Acts of Parliament (so preserving the existing principle of parliamentary supremacy), would avoid creating justiciable socio-economic rights (confining rights to the civil and political ones familiar from the European Convention on Human Rights currently incorporated into national law by the Human Rights Act 1998), and would not have a system for abstract judicial review of bills.

Where on the maximalist-minimalist spectrum a UK Constitution should sit has to depend on (a) efficacy and (b) political acceptability. Efficacy is concerned with what is needed, from a ‘technical’ legal perspective, for the UK Constitution to make a real improvement compared to current constitutional arrangements. Political acceptability is about being realistic as to what political elites and the general public would find attractive or tolerable.

In the current political climate it is difficult to imagine that mainstream political opinion would accept an enlargement of the role of judges in adjudicating on legal questions that relate to controversial matters of public policy. The existing powers of courts under the Human Rights Act 1998 and in judicial review claims are regularly called into question by members of the Government and have few champions within Parliament. There is little public understanding of the role of courts in these areas and the constitutional function of the judges is routinely disparaged and misrepresented in the press. This political background against which the continuing debates about a UK Constitution take place is unlikely to change in the foreseeable future. Politically realistic constitutional reformers should therefore favour a minimalist role for judges in a codified constitution and provide reassurance to sceptics and opponents of judicial power that adoption of a UK Constitution need not involve the judges in novel legal tasks.

I stick to that view. At a time when the government, including the Lord Chancellor, find judicial review of administrative action unpalatable, it is not practical politics to argue for greater powers for the UK courts to strike down “unconstitutional”Acts of Parliament. Anti-judicial review sentiments were not invented by the present coalition government. Under previous administrations, ministers did not see the point of it. In 2003, David Blunkett MP, when a minister in Tony Blair’s Labour government, captured what I sense to be the dominant view of all recent governments: “Frankly, I’m personally fed up with having to deal with a situation where Parliament debates issues and the judges then overturn them”.

Andrew Le Sueur is Professor of Constitutional Justice at the University of Essex and president of the UK Constitutional Law Association.

(Suggested citation: A. Le Sueur, ‘Imagining judges in a written UK Constitution’ U.K. Const. L. Blog (14th May 2014) (available at: http://ukconstitutionallaw.org/).

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Mike Gordon: Constitutional Reform under the Coalition Government

mike-gordon-pictureThe Government’s response to the House of Commons Political and Constitutional Reform Committee’s (PCRC) report Do we need a constitutional convention for the UK? is in many ways a rather unremarkable document (Cm 8749, November 2013).  The PCRC’s report (Fourth Report of Session 2012-13, HC 371) was published on 28th March 2013, and concluded that there was ‘a need to consider both how the increasingly devolved parts of the Union interact with each other, and what we, as residents of the UK, want the Union to look like going forward’.  As a result the PCRC suggested that the Government ‘consider, among other options, preparations for a UK-wide constitutional convention, including decisions about its form and organisation, and the process of calling for evidence’, which would be held in the aftermath, and regardless of the result, of the Scottish independence referendum in September 2014.

The qualified nature of this suggestion stemmed from the fact that there were ‘a range of very different opinions’ as to the necessity and/or desirability of holding a constitutional convention for the UK among the witnesses who provided evidence to the PCRC’s inquiry, and the absence of unanimity among Committee members about the recommendations which ought to be made to the Government.  Yet it is most unlikely that even had the PCRC offered a resounding and unreserved endorsement of a need for a constitutional convention urgently to be convened that an alternative response from the Government would have been prompted from that which was actually received.  For the Government concluded that there was not a strong case to hold a constitutional convention at this time (para 4.3) as there was a lack of public demand (para 2.2), and it had alternative pressing priorities; in particular, the need to focus on ensuring the recovery of the UK economy (para 1.3).

So far, so unsurprising – lack of public interest and scarcity of resources being used to justify (politely) a government declining to engage in a potentially elaborate exercise in constitutional reform.

What is of interest, then, in the Government’s response?  Two things might be considered worthy of note.  First, the Government does not reject the argument that a constitutional convention should be held in principle. It does not, in other words, argue that a constitutional convention is not a potentially useful mechanism through which constitutional reform could be pursued in (or to) the UK.  The Government accepts that ‘there may be situations in which a constitutional convention is needed’ (para 4.1), and while declining to comment specifically on the possible composition of such a convention, the important principle that the public should be the ‘driving force’ in such an undertaking is accepted (para 2.1).

Of course, future governments will not necessarily be bound by the position taken by the Coalition.  But the response of the Government, taken together with the assessment of the matter carried out by the PCRC, does seem to recognise that future significant constitutional reform to or within the UK may need to be the result of a process that is more inclusive and reflective than might have been experienced previously.  This is not to say that some (perhaps much?) constitutional reform cannot still be government-led – as the Government’s response indicates, ‘context is crucial’ (para 1.4).  Instead, it is to acknowledge the availability of the constitutional convention as a tool of constitutional reform in the UK, and thus the possibility of broader engagement with the future shape and substance of the constitution than a model in which it is (broadly, albeit with input from other actors and groups) for the UK Government to determine, and the UK Parliament to implement, the quantity and quality of modifications to the existing settlement.

The second matter of interest in the Government’s response to the PCRC report is not about the process of constitutional reform, but the attitude to reform which is evident in the document.  Constitutional reform is explicitly said to be ‘important’ (para 4.1), and much more time is spent in the response detailing the programme of constitutional reform that the Coalition Government has engaged in during its time in office than actually addressing the need (or lack thereof) for a constitutional convention.

The central motif for this programme of reform is presented as ‘decentralisation’, something understood to accommodate both further devolution of power to Northern Ireland (the transfer of policing and justice functions in 2010, with the prospect of additional fiscal powers being devolved currently under consideration), Wales (the 2011 referendum leading to the devolution of ‘full law-making powers’ in the subject areas originally covered by the Welsh settlement, with the commitment to accept many of the Silk Commission’s recommendations on future financial powers for Wales) and Scotland (the extensive devolution of fiscal power under the Scotland Act 2012, and the prospect of further devolution if Scotland remains a part of the UK after 2014), in addition to shifting power away from Westminster to local government in England.

Whether it is right to describe this redistribution of power to local government as a ‘historic shift’ (para 3.24), or whether all the examples cited can really be understood to form part of a programme of constitutional reform (for example, ‘creation of enterprise zones in 24 cities and wider Local Enterprise Partnership areas that provide significant tax breaks’?) can be debated elsewhere.  What is clear is that the Government wants to present itself as having a pursued an extensive, but also coherent, reform agenda.  Examples of constitutional change which do not fit into the overarching decentralisation narrative are either sidelined (the Parliamentary Voting System and Constituencies Act 2011 and Fixed-term Parliaments Act 2011 are mentioned in passing in para 3.11, despite the significance of the latter, and the intentions – if not the results – of the former) or left out (European Union Act 2011Succession to the Crown Act 2013Crime and Courts Act 2013?).  Perhaps it would be too much to expect the failed attempts to reform the House of Lords to be acknowledged, but the result is that a full impression of the (significant) reforming aspirations of the Coalition is not achieved by attempting to organise its programme around the notion of decentralisation.

Is this of great importance?  Is it not the prerogative of each government to try to make what it has achieved as consistent and rational as possible?  And the notion of decentralisation has not been freshly invoked for the purposes of this response – indeed, the Coalition agreement Our Programme for Government of May 2010 spoke of ‘a determination to oversee a radical redistribution of power away from Westminster and Whitehall to councils, communities and homes across the nation’ in the foreword, in addition to highlighting the importance of decentralisation itself in section 4 on Communities and Local Government (although interestingly the principle is not mentioned in section 24 on Political Reform).

Yet it can be seen to tell us something important about the attitude of the Government to reform.  That governments have been interested in pro-actively engaging in constitutional reform has been clear since the New Labour Government which first took office in 1997.  As Rodney Brazier has demonstrated, prior to this attempts at constitutional reform were generally ad-hoc and reactive (see Constitutional Reform, 2008, 3rd ed. OUP).  However, successive New Labour administrations engaged in reform not because it was required by extenuating circumstances, but because it was seen to be desirable in its own right.  The Coalition Government has continued to seek pro-actively to reform the constitution in a range of areas, but the attempts made to explain and justify what has been done in the response to the PCRC also seem to go further.  They appear to be presenting a range of reforms as part of a systematic plan, with decentralisation of power the overriding objective.   Constitutional reform is here presented as being pro-active and systematic, taking us further than ever before from the pre-New Labour paradigm.  Whether this programme of reform is systematic, or is simply being represented as such with a particular purpose in mind, is not something that needs to be conclusively determined here.  What matters is that the Government is seeking to portray it as such.

It would be to read too much into a relatively straightforward response to a Select Committee inquiry to view this as some kind of dramatic step forward.  But the attitude to constitutional reform which underpins this response is, in my view, important.  It shows that the shift in approach to constitutional change initiated by New Labour has not only continued under the Coalition, but arguably developed further.  Reform should not just be pro-active, but will also ideally be coherent, and justified by reference to common underlying principles.  Gordon Brown’s The Governance of Britain (Cm 7170, July 2007) may have been a more dramatic statement of such intent, but ultimately disappointed.  The present Government’s representation of its efforts to reform the UK constitution in response to the PCRC seems to confirm that this attitude has taken root (although disappointments still remain).  Ultimately, we may then hope that trying to talk about constitutional reform in a more coherent and systematic way will eventually lead us to practice constitutional reform in a more coherent and systematic way too.

The Government’s response to the PCRC may therefore be unremarkable on the face of it.  Yet those who are interested in changing methods and attitudes to reform of the UK constitution may find that, beneath the surface, there is some evidence of progress.

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

Suggested citation: M. Gordon, ‘Constitutional Reform under the Coalition Government’    UK Const. L. Blog (18th December 2013) (available at http://ukconstitutionallaw.org)

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Nick Barber: The Constitutional Inheritance of the Royal Baby: A Speculation.

Nick1It might be thought that there would be little need for a post on this blog about the arrival of the royal baby.  The new Prince of Cambridge – Your Highness, to his friends – is unlikely to play a significant constitutional role for sometime to come.  I found myself wondering, though, what the constitutional situation will be when, and if, he finally comes to the throne.  So, here is the post I plan to write in 2075 – and the way academic pensions are going, I will probably still be working then.

To some, it may come as a surprise that Britain continues to be a monarchy.  We escaped, or missed, the tide of republican constitutional reform that followed the death of Queen Elizabeth in the middle third of the century.  Australia and Jamaica were the first to go, followed, like a line of falling dominos, by Canada, and then by New Zealand.  Other territories followed suit, with most adopting an elected head of state or – more simply still – combining the role of head of state with that of prime minister.  However, it is still the case that the sun never fully sets on our new King’s realms: some small territories decided, for economic and foreign policy reasons, to retain the royal connection.  And the Privy Council, acting as their highest court, still provides a useful guarantee of legal certainty to the owners of the many corporations nominally residing on these islands.  Like these micro-realms, we in the United Kingdom have retained our monarchy.  This is only partly through choice: the moment has never seemed quite right for a public discussion of the wider issues raised by an hereditary head of state, there always seems to have been more important matters to worry about.  It could well be said that it is apathy, rather than a commitment to royalism, than has allowed the institution to last this long.

Within the United Kingdom, the King inherits a fractious and diverse realm.  Scotland will undertake its 10th vote on independence from the Union this coming autumn, and the low-levels of likely voter turn out make it hard to predict the outcome.  For many years, the royal family has worked hard to maintain the Union – without, of course, ever stating this position publically – and conferral of the title of ‘Duke of Edinburgh’ on the heir apparent reflects this commitment.  A popular argument in favour of the monarchy is that it serves this unifying function, bringing the United Kingdom together.  However, it has been hard to avoid the impression in the last fifty years or so that the royal family is tied to England, and based in London.  The former monarch regularly attended the openings of the English Parliament and, of course, of our federal, British, Parliament, but was less commonly seen in the Scottish and Welsh Parliaments.  Whilst the nationalist movement in Scotland remains formally committed to the monarchy, it is hard to believe this commitment is very deep.  If – or, perhaps, when – Scotland finally votes for independence, it is likely to reassess its connection with royalty.

The King takes the throne following the abdication of his father.  It might reasonably be asked if we now have enough evidence to talk of a ‘convention’ of abdication.  Queen Elizabeth was the last monarch to reign until her death – though for the last ten years or so of her life Prince Charles acted as regent in all but name.  He abdicated shortly afterwards, having reigned for only a year, citing old age and a passionate desire to express his opinions about a wide range of matters more openly.  The new King’s father, the former Prince William, has just stepped down at the ripe old age of 91, having served for about 40 years.  Abdication seems to have become the standard way for the Crown to pass between generations.

The need for abdication as a regular feature of constitutional monarchies became apparent in the first half of this century.  The monarchies of the Netherlands and Belgium began this trend.  The ever-improving standards of healthcare – and the healthy lives led by the privileged sections of society from which monarchs are drawn – necessitated abdication as a standard constitutional device.  It became evident that without abdication states risked a succession of extremely elderly kings and queens, as the crown was passed from centenarian to octogenarian.  Can we now say that there is a convention in the United Kingdom that the Monarch will step down on reaching old age?  If this is a convention, there is a substantial amount of uncertainty involved in it.  It does seems that the Monarch will step aside when he or she feels that age is inhibiting her work, but whether that is 85 – as with Charles – or 91 – as with William – depends on the holder of the office and the pressure they are subjected to by the wider political community.  Perhaps a better – and more humane – approach would be to set a statutory retirement age for the monarch.  He or she would be compelled to stand aside, even if still capable of undertaking the duties of the office.

It might be objected, though, that the capacity to choose the date of their retirement is pretty much the last constitutional power that the Monarch possesses.  Removing this choice would leave the Monarch completely powerless, little more than a national mascot.  A clear trend of the twenty-first century has been the steady reduction in the political power and influence of the Monarch.  Most of the Monarch’s legal powers were lost by the start of the century – the prerogatives of the Crown were and still are exercised by those accountable to the Parliaments of the United Kingdom – but the Monarch’s political influence has also declined.  This is partly due to the holders of the office.  Queen Elizabeth – it subsequently transpired – had been able to exercise a small, but significant, influence on government policy.  Her weekly meetings with the Prime Minister combined with her understanding of politics and wide public popularity enabled her to shape some aspects of public policy under some prime ministers.  Her successors had far less clout.  The emergence of Prince Charles’ letters to Ministers – after many court battles – did not present him in an attractive light.  His views on farming, hunting, and – most damningly – homoeopathy did not enhance his public position.  For the short period he was monarch, he had little influence; ministers were keen to distance themselves from his views.  And when Prince William then took the throne it seems he had little interest in the detail of public affairs, content to leave matters entirely to the elected part of the constitution.  Perhaps wisely, he may have concluded that to exercise influence, or even to seek to exercise influence, was – first – likely to be leaked to the public, and – second – likely to harm the institution of the monarchy.

A further reason for the decline in royal power, and one that was not predicted at the time, was the shift of the United Kingdom to a formal federal structure in the middle part of the century.  The Prime Minister of the United Kingdom still has regular meetings with the Monarch, but many of the important day-to-day decisions are made by the first ministers of England, Scotland, Wales, and Northern Ireland.  It could easily be argued that the Prime Minister exercises substantially less power that any of these other four.  Indeed, the United Kingdom Parliament, and government at the United Kingdom level, is often very weak.  When the first ministers collectively decide on a policy, the United Kingdom Prime Minister is almost always compelled to accept their decision.  Even in matters of foreign policy, England and Scotland have – through offices overseas that are embassies in all but name – often as much influence as the formal representatives of the United Kingdom.

A possible corollary of this decline in power has been a decline in the heir apparent’s willingness to avoid making politically controversial statements.  Whilst his father was noted for his public restraint, our new King has spoken out on many issues – feeling, perhaps, that if he will be denied influence whilst in office, he should at least be allowed to express his views like any other citizen.  It has even been argued that along with the decline in royal power should come the right to vote: if our new King lacks special constitutional powers, why shouldn’t he at least enjoy the ordinary constitutional power the rest of us exercise?

In conclusion, as we start to look forward to the invigorating spectacle of the coming coronation – and turn our eyes away from the un-inspiring stories of the scandals surrounding the next generation of royalty – it might now be time to ask whether monarchy is really a fit institution for the coming twenty-second century.  True, some of the oddities have ended.  The Monarch is no longer the head of the Church of England – a divorce that brought great relief to each party – and no longer has any real political power.  But we might still worry about the symbolism of having a head of state who is always drawn from the most privileged part of our society.  More pressingly, perhaps, we might also worry about the unfair and unhealthy pressure that this puts on holders of this office.  Our new King has had to put up with 62 years of relentless scrutiny, and his capacity to choose his own path in life has been radically constrained.  Maybe, in 2075, it is time to think – cautiously – about change.

Nick Barber is a Fellow of Trinity College, Oxford, and University Lecturer in Constitutional Law. 

Suggested citation: N. W. Barber, ‘The Constitutional Inheritance of the Royal Baby: A Speculation’ UK Const. L. Blog (24th July 2013) (available at http://ukconstitutionallaw.org).

Readers are invited to submit, through the comments section, their own predictions for the state of the constitution when the royal baby takes the throne.  A prize will be awarded – in 2075 – for the most accurate.

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Scott Stephenson: The Future of Rights Reform in the Age of the Referendum

stephenson_scottIn the last fortnight, two major pieces of constitutional reform returned to the political agenda. The House of Commons considered Conservative MP James Wharton’s private Member’s Bill that would provide for a referendum on whether the UK should remain a member of the EU. The Bill, according to Prime Minister David Cameron, will have ‘the full support of the Conservative Party’. Several days later, senior members of the Conservative Party made statements indicating that the Party would make ‘wholesale changes’ to the country’s system of human rights protection if it obtains a majority in Parliament at the next election. Proposed changes include repeal of the Human Rights Act and withdrawal from the European Convention on Human Rights. In this post, I consider whether the former might have implications for the latter—whether the rise of the referendum could and/or should affect the future of rights reform in the UK.

As is well known, no special procedure is required to amend the UK’s constitutional system. Even significant changes, such as curtailing the House of Lords’ powers and subjecting UK law to European Community law, can occur by ordinary legislative enactment. As a matter of formal law, this position continues undisturbed. Yet the referendum is now a prominent feature of the country’s constitutional landscape. As Wharton told the House of Commons on 5 July, ‘we live in the age of the referendum’. Since the 1970s, referendums have been held on a range of areas of significant constitutional reform: membership of the European Community, devolution, local government and the electoral system. Political imperatives typically lie behind the announcement of a referendum—to maintain party unity, to secure the agreement of a coalition partner, to appear to be taking action on an issue and so forth. Nevertheless, political events can produce constitutional change (e.g. the Salisbury Convention). The UK constitution’s uncodified character renders it particularly susceptible to such modification. Has, therefore, the increasing resort to referendums shifted the normative and political benchmarks for significant constitutional reform?

Historically, popular fidelity to the UK’s constitutional system could not be ascribed to direct involvement in its creation and renewal (e.g. the Australian Constitution’s referendum requirement) or strong, widespread identification (e.g. perceptions of the United States Constitution as ‘our law’ or the country’s ‘civil religion’). Employing Grażyna Skąpska’s terminology, Mark Tushnet wrote that the UK offers a ‘good model’ of ‘grassroots constitutionalism’ by which he means that constitutional ‘loyalty or enthusiasm … arises from performance, not process’. ‘If comitology produces the (constitutional) goods’, Tushnet said, ‘grassroots constitutionalism posits that the citizenry will not care how that comes about’. The advent of the referendum casts doubt on this characterisation. Today, process arguably plays a substantial role in legitimating major constitutional decisions about, for instance, devolution. Could one plausibly posit that the citizenry does not care how future changes to the composition of the UK come about? Whether the Scots are given a say on Scottish independence or not? Indeed, UK governments initiate referendums precisely for their process-based qualities—that referendums are capable of engendering enthusiasm for and enhancing the legitimacy of constitutional decisions.

To be sure, a process of popular ratification does not remove performance as a source of legitimation as current debate about membership of the EU demonstrates. The 1975 referendum has not stopped citizens and politicians from seeking to revisit the issue as a result of dissatisfaction with how the EU is affecting the UK and its ability to govern. Tellingly, however, it appears that a decision to withdraw will not be made without first complying with a particular process: another referendum. It might be said, therefore, that an unwritten standard of conduct—a constitutional norm—is under development in respect of the process to be followed for future decisions of significance on devolution and EU membership.

How might, and should, the growing importance of process affect the future of rights reform? The protection of human rights is an area of constitutional law no less important than devolution or EU membership. A decision to repeal the Human Rights Act or to withdraw from the European Convention on Human Rights could not be dismissed as a minor or technical constitutional matter. Reform may raise subtle questions of law concerning the role of courts—their powers and interpretive techniques—and the difference between UK and European forms of judicial oversight. Yet these issues are no more taxing than questions of independence, which involve a complex admixture of cultural, economic and political factors, and systems of voting, which involve nuanced differences between first-past-the-post and alternative vote.

One might argue that human rights issues should not be put to a referendum due to the risk of majoritarian abrogation of minority rights. Yet no single structure for the protection of human rights is incontrovertibly the most legitimate and effective as the debates between legal and political constitutionalists indicate. This reasonable disagreement about questions of structure counsels for, not against, a process of popular involvement. Even within the realm of judicially enforced rights instruments there is significant scope for differences of opinion—and thus democratic resolution—on the rights that should be included as well as the respective powers and responsibilities of the three branches of government.

Should the age of the referendum be viewed as a welcome development? Stephen Tierney notes that the mechanism ‘can carry very substantial risks to democratic constitutionalism itself’. He states that the power to initiate referendums can empower the executive ‘to achieve [its] political goals by manipulating an unreflective and ill-informed electorate into voting for a particular proposition’. Ireland’s current experience with the proposed abolition of its upper house demonstrates how a referendum can be used to narrow and distort the terms of debate on constitutional reform. The risks are particularly acute in the context of human rights where there is a prevalence of scare tactics and misinformation. Yet if the government proposed, or a sector of civil society campaigned for, a referendum in connection with a major decision on rights reform, it would be difficult to argue that the people do not have the right to have a say on an issue of such importance. Such arguments will become even more difficult if a constitutional norm develops requiring significant reform decisions in other areas such as EU membership to be made by referendum.

 Scott Stephenson is a J.S.D. Candidate and Tutor in Law at Yale University

 Suggested citation: S. Stephenson, ‘The Future of Rights Reform in the Age of the Referendum’ UK Const. L. Blog (17th July 2013) (available at http://ukconstitutionallaw.org)

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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

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Gavin Phillipson: Lords Reform: why opponents of the Government Bill were wrong

So the attempt to bring long-overdue comprehensive reform to our second chamber has failed. The plan for an 80% elected, 20% appointed House, with the hereditary rump removed and Prime Ministerial patronage ended, has been defeated. Leaving aside the purely party political factors that contributed to this outcome, I think we can identify two key reasons why Conservative MPs in particular refused to support the Bill: first, simple “small c conservatism”, manifested on this occasion in the “principle of unripe time” variant so nicely dissected by Sebastian Payne last week on this blog; second, simple parochialism: the deployment of arguments against reform that wholly failed to take account of the experience of other countries – a tendency that was present not only in the views of politicians, but of many of the academic commentators as well, including, alas, on this blog.

The key argument for democratic reform

The main arguments in favour of democratic reform are simple and have been made many times: that the House of Lords exercises real legislative power, which should flow from a democratic mandate, rather than Prime Ministerial patronage and hereditary entitlement. At present, our second chamber has an effective “electorate” of a mere handful of people, something that should be considered indefensible. A linked argument, often overlooked, but almost as important, is more practical: that, while the Lords has a real effect on legislation, much of its excellent policy work, including its proposed revisions to legislation, currently goes to waste because of its perceived lack of legitimacy; its amendments can be, and often are, swatted aside by governments and MPs on this basis. The sweeping assertion of Commons “financial privilege” to allow the rejection without consideration of whole swathes of painstakingly debated Lords’ amendments to the Welfare Reform Bill (considered on this blog recently by Jeff King) was only the most recent and drastic example of this well known tendency. While Donald Shell probably goes too far in saying that the UK has for some time been working under a system of “de facto unicameralism”  (‘The Future of the Second Chamber’ (2004) 57(4) Parlt. Aff. 852, 855), he is right to emphasise the emasculated role of the Lords, deriving mainly from the conventional limits upon its powers, which stem in turn from its perceived lack of legitimacy. It is a commonplace that our constitution lacks the formal checks and balances that other democracies have and, as a result (many believe) still suffers from an over-mighty Executive, able to secure the passage of most of its legislation, however draconian or ill-conceived. The argument then is that we need a more legitimate and therefore more powerful upper chamber with the confidence to make much fuller use of its existing powers to amend or delay legislation where it considers that the government needs to think again (see e.g. the evidence of Dr Renwick to the Joint Committee on the Draft Bill, para 56). As the Public Administration Select Committee argued in a powerful report back in 2002, “second chamber reform is … about strengthening Parliament as a wholein relation to an executive that is uniquely powerful in the British system” (Fifth Report of 2001-2002, hereafter, ‘PAC’). I also believe that the Government (and the PAC) were right to propose a majority-elected House rather than a fully elected chamber; I have made that case elsewhere (‘Solving the second chamber paradox’ (2004) PL 352), and do not repeat it here. Instead I examine the main arguments against the proposed reform, those which carried the day.

The main bogeymen: Commons “primacy” and gridlock.

This was perhaps the main argument against the Bill, expressed over and over again by Conservative MPs and others: that reform of the second chamber would “threaten the primacy of the Commons” and lead to gridlock, because a reformed chamber, no longer hamstrung by its lack of legitimacy, would use its legal powers far more fully than at present. This argument was repeated so often that we have become used to it, but when one stands back and thinks about, it is really quite extraordinary: essentially the contention is that we should keep the Lords as it is precisely because of its lack of legitimacy, which allows the Commons routinely to override it, thus preserving its “primacy” and preventing gridlock. It is evident that some means of preventing endless partisan struggles between the two chambers of the legislature is needed. But the current system – using the acknowledged lack of legitimacy of one House in order to make it too hesitant to use regularly the powers that it has – is an extraordinarily crude and wrong-headed way to achieve this result. No-one would propose a deliberately illegitimate chamber as part of a new constitutional settlement in a democracy. The passionate defence of the current House by so many merely illustrates once again what has been called the astonishing power of the actual.

But of course the argument is also flawed and exaggerated even in its own terms. Let us deal first with the endlessly-repeated fear that a democratic Lords would “threaten the primacy of the Commons”. Exactly what this meant was never fully explained but the basic argument is quite evidently wrong. The Commons’ “primacy” – meaning its status as the foremost chamber – is secured by a number of factors. The most important of these are: the Parliament Acts, which legally limits the powers of the Lords; the fact that only the Commons can vote supply, and that only the Commons can throw out a government, through a motion of no confidence and bring about an early General Election (under the Fixed Term Parliament Act 2011). All of these factors would remain after reform (if necessary, legislation could specifically state that the Parliament Acts applied to the new House). Moreover, the combination of rolling replacement of its membership with long terms of office in the upper chamber – meaning that the Commons could always claim the fresher mandate – plus the 20% appointed element, would stop the Lords claiming primacy even in terms of democratic legitimacy. The “primacy” point, then, is simply misconceived.

The fear of “gridlock” is the weaker and more rational, but still exaggerated version of this argument. Undoubtedly, as the Joint Committee observed (para 34), a reformed House would use its legal powers more, to an extent that we cannot predict with certainty. At least some of the conventions currently restraining it would drop away, or weaken. While the Lords would still be legally subordinate to the Commons, and have less of a democratic mandate, the Upper House would become more powerful in practice. It is curious, however, that this is so often characterised as a negative factor, given that ensuring a more powerful second chamber is one of the main arguments in favour of reform. What would be the consequences of a more assertive Lords? Assuming that no party ordinarily had a majority in the second chamber (a crucial condition for reform) it would mean that governments would have to negotiate and sometimes compromise in order to get their legislation through it, although presumably some version of the Salisbury convention in relation to manifesto Bills could be retained. Would this be so bad? Russell’s research clearly indicates that, while Government control of the second chamber can render it too weak and Opposition control too likely to result in deadlock with the first chamber, the option of no overall control is “the most effective option”, because a House “controlled by forces independent of government can help create a form of consensus politics which results in better political outcomes in the longer term.” (Reforming the Lords: Lessons from Overseas (OUP, 2000), (hereafter ‘LFO’) at 299 and 164). So where the government had a policy that was manifesto-mandated, or had cross-party support, or was very popular (such that the parties felt it imprudent to oppose it) it would still be able to get its legislation through, without much difficulty. But where both opposition parties opposed it, and the government could not convince the independent peers to support it, it would either have to wait a year and then use the Parliament Acts, or make concessions. Given that a non-manifesto policy opposed by both other parties would typically be one that was at best notionally supported by only around the 40-odd per cent of the electorate who voted for the government, it is not clear why this would be such a bad thing.

Such arguments, however, got little airing in the Lords reform debate. More opposition from the Lords was considered to be self-evidently bad, because it would inevitably lead to “gridlock” – again, not a term that was generally explained, but one which sounded like the government’s whole legislative programme being brought to a juddering halt.  That this would be the result of a more democratic Lords was indeed generally presented as a plain fact; thus Tory MP Nick Soames said, “The inevitable result of [the reform] will be gridlock and constitutional crisis” (Telegraph, 9 July 2012), while Vernon Bogdanor stated bluntly that “The upper House would become an opposing rather than a revising chamber” (JC Report, para 30).  Such statements however, are not factual propositions, but speculative conjectures and not ones supported by the overseas evidence. And it is here that the debate was at its most frustrating.

Meg Russell at the UCL Constitution Unit has done extensive and excellent research in this area, including in her Lessons from Overseas book (and see her evidence to the Joint Committee). And yet time after time, politicians, academics and pundits felt able to confidently to pronounce on what would happen in a system where the second chamber was largely or wholly elected, without citing even a jot of the widely available evidence which, broadly speaking, serves to refute the “gridlock” fear.  As the PAC crisply put it in its 2002 report: “Three quarters of the 64 bicameral legislature around the world have largely or wholly elected second chambers, and very few suffer from … difficulties [of gridlock]”. Countries which actually do at times suffer from legislative deadlock, such as the United States or Australia, have systems in which the two houses are co-equal, there being no mechanism like the Parliament Acts which allow one simply to override the other, or ones like Japan, in which a “super-majority” in the first chamber is needed to bypass opposition in the second. If the electoral system allows the Opposition to have a majority in the second chamber – as can happen in both the US and Australia – this also tends to aggravate the problem.   (The latter point is one reason why the principle of “no overall” control in the second chamber has commanded widespread acceptance for some time, and hence why (as the Government rightly proposed) the second chamber must use some form of PR for its electoral system). In other words, those countries with elected second chambers that do suffer from deadlock have quite different constitutional setups from the UK’s. However, many contributors to the debate appeared to feel no need to deal with the fact that the overseas evidence either did not support, or even contradicted the predictions they so confidently made. With respect, the same thing may be said about the comments of Nick Barber and Danny Nicol on this blog that adding democracy to the Lords would not enhance democracy in the UK because, if there are too many elected bodies “citizens will become uncertain about which bodies they should engage with, and may tire of the process.” One might expect at least a nod to the fact that a very large number of democracies have some form of elected second chambers; acknowledgment perhaps of a need to inquire whether the citizens of such democracies really are confused by this and therefore less engaged citizens.  Must the solution to this alleged problem really be an undemocratic chamber of Parliament?

The Lords does not need democratic legitimacy for the kind of work it does

This is one of the more subtle arguments against democratic reform of the second chamber. In its cruder forms, it rests on a straightforward misrepresentation of the work the Lords actually does, as when the Daily Telegraph claimed that, “The purpose of the Upper House is not to make law, but to ensure that the power of the elected chamber is kept in check and its legislation properly scrutinised” and that it was “a revising chamber devoid of legislative authority”. Such claims are simply false – and internally contradictory to boot: how does the Lords “keep in check” the power of the Commons except by revising – that is, amending its legislation – and by doing so, make law? With slightly more plausibility, it is sometimes instead said that the Lords are not “legislators” but “revisers of legislation, a task that does not require election to confer legitimacy.” One might dismiss such objections as pure conservative propaganda, until we note that similar things were said by Professor Sir John Baker of Cambridge University, who in evidence to the Joint Committee argued that the House of Lord’s role “does not require the sanction of the ballot box to give it legitimacy any more than the judicial role because the House of Commons can insist on the last word” (Report, para 18).

There are several possible arguments mixed up here, and they need to be teased out. Some appear to rest on the notion that “revising” legislation is just “scrutinising” it, which doesn’t require democratic legitimacy. Hence one parliamentarian argued that “The upper House is…like an audit commission examining legislation passed by Parliament…Selecting people to perform a scrutiny or audit role is very different from selecting people to produce legislation, or determine public policy and the shape of a Government (HC, Deb, col. 244, (January 21, 2003).  But this is a simple misstatement of the role of the Lords: select committees, academics, lobby groups, NGOs etc all scrutinise legislation, but only the House of Lords gets to change it.

In the face of this obvious fact, the argument sometimes changes to one a little closer to reality: that, while the Lords proposes changes to legislation, it always defers if the Commons doesn’t agree. This casts the Lords as some kind of advisory body, tentatively proffering its views on legislation, but immediately backing down if the government or the Commons doesn’t like them. As one peer put it, “when the Commons disagrees with our view, we always recognise, with no argument, that it has been elected and we have not, and we surrender”. (HL col. 666, (January 21, 2003 (Baroness Knight)). Similarly, a cross bencher, Lord Karkkhar recently argued that the current House “ultimately and always” bows to the “primacy” of the Commons.  However, it is simply not the case that while the Commons legislates, the Lords merely proposes revisions. The Lords does what the Commons does: it doesn’t create legislation (private members Bills aside), rather it assents to government Bills and amends them. The difference of course, is that the Lords amends legislation against the wishes of the government quite frequently, whereas the Commons does so extremely rarely. It was pointed out during debates on Lords Reform under Blair that of the first 639 whipped votes held under that government, the Lords defeated the government in 164 of them, that is, one in four.  Most recently, in the 2010-12 session the Lords inflicted 48 legislative defeats on the government,  compared to none in the Commons.  Of course the Lords  often give way, if their amendments are rejected by the Commons even once, but, in some cases, they do not, and pressure of time then forces the government to accept them. As Lord Forsyth put it: “People believe that this House has no powers, but it has the power to bring the whole of the Government’s programme to a halt if it chooses to do so” (HL Deb, col.244, (January 21, 2003). The Lords is therefore a more active legislative body than the Commons. And it is also not the case that Lords’ amendments are invariably concerned only with drafting or technical aspects (therefore not requiring democratic legitimacy). Well known examples from the last ten years or so of legislation in relation to which important legislative changes were forced upon governments by the Lords include: the European Parliamentary Elections Act 1999,  the Mode of Trial Bill (2000), the 2001 and 2005 Terrorism Bills and the Racial and Religious Hatred Bill 2006.  The Lords’ insistence in 2007 upon the extension of the new offence of corporate manslaughter to include prison and police officers was another notable example: this amendment of principle was rejected four times by the Commons and Government but finally forced upon them by the Lords (Corporate Manslaughter and Corporate Homicide Bill 2007).  And the Lords has continued its active role since the Coalition Government came to power: well known examples include the marathon struggle over the Parliamentary Voting System and Constituencies Bill and changes made to the Legal Aid and Health and Social Care Bills.  The Constitution Unit furnishes many other examples from the last seven years.

Once this is accepted, it becomes clear that the actual work of the Lords requires democratic legitimacy. Any body of “wise persons”,  academics, NGOs, professional organisations etc, could set themselves up into an advisory body and scrutinise government Bills, suggesting amendments to it. Many such bodies in effect do this, when they comment on Green or White Papers, or even draft legislation. This is of course a useful process. However, were such a body suddenly to announce that it had the right to reject or change provisions in legislation carried by the Commons–an absolute right in the case of secondary legislation—there would naturally be an outcry at its illegitimate arrogation of legislative power. Such a body would have no more right to alter legislation than the law school of which I am a member would have the right to amend a Criminal Justice Bill, claiming as its legitimacy to do so, the undoubted collective expertise and independence of its members.

The final variant of the argument considered here is the comparison of the current House of Lords with the judges: both, it is said, are not elected, and yet both wield considerable powers over legislation; since we accept one, we should accept the other (see e.g. the recent comments of Professor Baker above). This argument is flawed because it pays no regard to the quite different roles of the judges and that of the second chamber of Parliament. In comparison with the enormous and possibly still legally unlimited power wielded by Parliament, the judicial branch exercises only a relatively narrow band of power, which is ultimately either given to it by Parliament (in the case of statutory interpretation) or confined to issues that Parliament has acquiesced in leaving in judicial hands (the common law). Even in relation to their extensive powers under the Human Rights Act (HRA), the courts remain bound by unambiguous incompatible primary legislation; importantly also, these powers were explicitly given to the courts by Parliament and may be removed by simple repeal of the HRA. Moreover, in making their decisions, judges are not called upon to exercise their own unconfined judgment, still less their party-political views. They are not asked to decide, de novo, what they think best for society. The House of Lords as a legislative body is, precisely, asked to do this: to bring peers’ individual political views to bear upon issues such as foundation hospitals, fox-hunting, liability of the police for corporate manslaughter, cuts to legal aid and changes to the governance and structure of the NHS. Peers thus exercise political power in a quite different way from the judiciary: they are asked to offer a view on the same issues as the Commons, issues that are the routine stuff of political conflict.

The hybrid nonsense.

Nick Barber suggests that hybrid models in general are of a “low standard” and some hostility towards the proposed hybrid model in the Bill was evident during the reform debate. Such arguments fall into two main strands considered below.

“Hybridity is incoherent”

The first main argument against hybridity is the so-called “Strathclyde paradox (after Lord Strathclyde, former Conservative Leader in the Lords): “If election is so good, why should the public not elect all our Members? If it is bad, why elect any at all?” This piece of schoolboy logic has gained considerable support.  Lord Cunningham’s evidence to the Joint Committee was to this effect, arguing against what he termed the “the muddle in the middle”: “You cannot be half democratic. You have to be either democratic or not” (para 96). Such arguments are flawed because they rests upon the false premise that electing members is straightforwardly either good or bad. But reform of the Lords must be judged against more than one criterion. Russell’s study of second chambers overseas led her to propose three crucial factors (LFO, pp. 163-164 and 250-254), which were adopted by the PAC in its 2002 report: distinct composition; perceived legitimacy; adequate powers. Parliament’s previous Joint Committee on Lords Reform expounded the distinct composition point to include principles of no domination by one party, (relative) independence from party and technical expertise of the sort that the current House offers ((H.L. 17 H.C. 171 (2002-03), para 3). If these are borne in mind, it becomes apparent that election to the second chamber has some advantages and some drawbacks. Election is “good” in terms of legitimacy: if there were to be no elected members, this would prevent the House from having sufficient democratic legitimacy to assert itself effectively against the Executive-dominated Commons. But the issue does not rest solely upon legitimacy. Once we recall the “distinctiveness” factors just noted, we can see why we might not want all the chamber’s members to be elected, desirable though this would be in terms of legitimacy. Such a course of action would preclude the appointment of non-politicians to the House, who would add expertise, independence and thus distinctive value to it. Having different classes of members – in other words a hybrid House – ensures that these different requirements can all be met.  In contrast, the so-called Strathclyde paradox only has any force if it is assumed that reform of the Lords is to be judged by one criterion alone.

“Hybridity would be unstable”

The other objection, originally voiced by Vernon Bogdanor, was that a House with a mixture of unelected and elected members would be unstable, with the unelected members being stigmatised (“who elected you”?) if they frustrated the will of the elected ((Reform of the House of Lords: a Sceptical View’ (1999) 70(4) Political Quarterly 375).  Fortunately, this argument now appears to be losing traction: it did not appear to trouble the Joint Committee unduly, and indeed, clearly has little force in a chamber with 80% elected members, who could never be outvoted by the unelected members. (This did not stop Lord Cormack complaining mysteriously to the Joint Committee that the Government’s Bill “would create a situation where the will of the elected could be frustrated by the non-elected” (para 96), without explaining how the 20% appointed membership could outvote the 80% elected). Unelected members would have to side with elected members in order to win a vote so there would never be a clear division between the two groups. In the odd instance in which the votes of appointees acted as a tie-breaker as between the votes of the divided political members, the public would probably view with relief the sight of the squabbling parties having the issue resolved by the dispassionate intervention of independent experts. Russell finds little or evidence either from overseas or the current Lords that having a mixed membership in this way would cause problems (JC, para 105).  Again, however, such evidence was rarely cited. Instead, parochialism reigned, and Lords reform once again languishes in the long grass.

The writer gave evidence to the Joint Committee on Reform of the House of Lords. 

Gavin Phillipson is a Professor of Law at Durham University.

 Suggested citation: G. Phillipson, ‘Lords Reform: why opponents of the Government Bill were wrong’ UK Const. L. Blog (26th September 2012) (available at http://ukconstitutionallaw.org).

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