UK Constitutional Law Association

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Paul Scott: The Upper Chamber and the Territorial Constitution

Editors’ note: This post is based upon a conference paper presented at the UKCLA conference ‘Debating the Constitution after the General Election’ held at the University of Manchester on 24  June 2015.

Paul-ScottA key feature of constitutional reform since 1997 (though we might plausibly, perhaps, remove that final qualification) is the discrete nature of the various strands which make up the totality – rather than a single process of constitutional reform involving both, say, the reform of the House of Lords and the introduction of the Human Rights Act, we have instead seen multiple processes of constitutional reform, which have often proceeded without reference to each other even where they have taken place simultaneously. On one hand, we get some sense of why it may be preferable not to tie together different reforms by considering the difficulties in which the current government finds itself over the interaction of human rights reform and devolution. On the other, it’s not clear that it’s acceptable, either as a matter of principle or of pragmatics, to treat any one process of constitutional reform as something self-contained – constitutions are complex systems, and it would be (and, I think, has been) foolish to think that what you do in one area of the system won’t have repercussions elsewhere. But this observation needn’t be a counsel of despair – a suggestion that a reformist government should change nothing unless willing to change everything. It also has a potentially positive dimension, in that it raises the prospect of being able to manage – to reinforce, to counteract etc. – the consequences of one change by making alterations elsewhere in the constitutional order. One interesting example is the possibility of leveraging the reform of the upper chamber in order to address the anomaly which arises from the fact of asymmetric devolution in the United Kingdom: what was the ‘West Lothian question’ and became, for some, the ‘English question’, and now is prominent as the logical basis of the (perhaps) imminent introduction of ‘English votes for English laws’ (EVEL).

The West Lothian question and its successors have usually been framed with respect to the House of Commons rather than the upper chamber. There are two key reasons for this. First, the predominance of the Commons, reflected most clearly in the Parliament Acts but also in various constitutional conventions and Parliamentary resolutions, means that whether a particular proposal ends up being written into law is in large part a function of the support for it there. Second, the West Lothian question can be asked only where it is possible to draw distinctions between different individuals within the legislature which track the geographic boundaries of legal validity. As originally formulated that geographic distinction – MPs for English seats, for Scottish seats and so on – fed in to a point framed around asymmetry: Scottish MPs voting on matters of, for example, education in England when English MPs have no capacity to vote on Scottish education policy. As the West Lothian question gave way to the English question the issue has at times been subtly reframed: what is objectionable is not the asymmetry as such, but the fact of individuals having the right to make law which doesn’t apply to the part of the country they represent. (An interesting implication of this reframing is that it may not be possible to answer the English question by having English MPs once again vote on devolved matters – by, say, abolishing the devolved legislatures). For present purposes though, what matters is that this discourse relies upon linking a given individual who is voting upon legislative proposals to one of the nations and regions of the United Kingdom.

In the Commons, this is straightforward – each individual represents a constituency; each constituency is found in one of the four territories of the United Kingdom. A Scottish MP is one who represents one of the 59 constituencies found in Scotland, regardless of who that person is or where they are ‘from’. In the Lords as presently constituted there is no such geographic differentiation; no direct tie between an individual and some part of the country and so, in turn, no objective way to label any given member of that chamber as ‘Scottish’ or ‘English’ etc. At best, one can fall back on crude proxies such as place of birth or residence, which are incapable of giving rise to the same sort of principled constitutional objection as are arrangements in the Commons: any analogy one might draw will likely dissolve into cheap nationalist innuendo. This, then, is why there’s no West Lothian question for the upper chamber: as it stands, its members are not representatives of one territory rather than another and, even if they were, the predominance of the Commons is such that the matter would likely be of little practical significance. It would be a theoretical problem, rather than the very real one which many take the West Lothian question to be.

Both of these points are, though, likely to be undercut in full or in part by any future reform of the upper chamber. To take them in order, we can start by observing that there has in the past been in the House of Lords the sort of geographic division that it now lacks. Starting with the unions of 1707 and 1800, Scotland and Ireland were represented in the House of Lords by representatives of their respective peerages: 16 in Scotland’s case and 45 in Ireland’s. Until it was broken down by Irish independence on the one hand and the removal of most of the hereditary peers on the other (the peerage of Scotland having been admitted to the Lords in its entirety by the Peerage Act 1963) that system permitted an objective national differentiation between some of the members of the Lords, subject to at least two provisos: one, there was and is no separate peerage of Wales; two, the fact that new peers were made in the peerage of Great Britain (after 1707) and then that of the United Kingdom (after 1800) created an undifferentiated mass of peers in relation to whom judgments of national identity could be made only on the basis of some more or less meaningful proxy. When the time came to complete the reform of the Lords started in 1911, amongst the (many) proposals for doing so were several which set out to reintroduce a national element into the upper chamber. For example, the 2007 White Paper, proposing to use the European Parliamentary constituencies for the election of that 50% of the upper chamber’s makeup which would have been elected under that plan, claimed that this would ensure that “representation of the nations and regions is inbuilt”. And though the Conservative Party’s position in its most recent manifesto was that reform of the upper chamber is not a priority (the issue has taken a back-seat to the project of saving the UK from various Europe-themed evils), Labour is still committed to reform, with its manifesto promising to replace the House of Lords with “an elected Senate of the Nations and Regions”. What I would suggest, though, is that even if one doesn’t consciously set out to create an upper chamber that is split upon national lines, such a thing will happen anyway – unless the constituency boundaries used for any future elected upper chamber (whether single or, more likely, multi-member) are deliberately drawn to cross the national borders (a move that the SNP, at least, would seem logically required to oppose), you will have given to that chamber a national dimension which will effectively undermine the first reason given above for the West Lothian Question not applying to the Lords. At the moment, we said, the West Lothian Question does not get asked there because there is no way of identifying members as ‘belonging’ to one of the territories which make up the UK. That may be true now, but there almost certainly will be a way of doing so in the future.

The failure of the various attempts to complete the reform of the upper chamber since 1999 (mostly variations on an unconvincing theme) is of course well-known, but that failure is itself relevant to the topic. A key reason why we remain trapped in this interim constitutional settlement is that much of the post-99 discourse of upper chamber reform has assumed that it would be desirable and, more to the point, possible to reform that chamber on wholly or largely democratic grounds and yet have it retain its subordinate status vis a vis the Commons. This is, it seems to me, an incorrect assumption; one which is appealing to the extent it makes possible a continuation of the tradition of incremental reform, but whose falsity would, if it were implemented, become clear very quickly. What I mean by that is that though you might leave the Parliament Acts intact, any reform of the upper chamber which introduces a meaningful democratic element will give the reconstituted chamber the right, and the confidence, to contest, if not simply reject, its subordinate status to the extent that the status in question is based upon convention and practice. To that extent, in a reformed upper chamber, not only will the first of the points made above about why the West Lothian Question finds no purchase there cease to apply, but so too will the second.

This is important, of course, because one of the constitutional reforms to which further reform of the Lords has taken a back seat in the contemporary political imagination is the implementation of EVEL: a solution – of sorts – to the original West Lothian Question, which will see there made an amendment to the House of Commons’ standing orders intended to “ensure that decisions affecting England, or England and Wales, can be taken only with the consent of the majority of Members of parliament representing constituencies in those parts of our United Kingdom.” (That this is not equivalent to permitting a majority of English MPs to force through legislation against the will of the broader House of Commons has been neatly demonstrated by the fate of last week’s abortive foxhunting vote). If I’m correct about the future evolution of the matter, then at the very least we are obliged to conclude that the West Lothian Question will not be answered fully and finally by the forthcoming changes to the standing orders of the Commons (whatever these end up being) but, instead, that any change implemented there will need to be accompanied at the appropriate moment by equivalent changes in a reformed upper chamber if such reform is not to move us a couple of steps backwards. But that seems to me to be too defensive a poise to take – one which reflects the logic identified above, whereby processes of reform are, as far as possible, kept separate, with their interaction considered only when some external circumstance or a changed political context compels it.

So let’s look at it another way: if we believe that the reform of the upper chamber is likely to revive the West Lothian/English question, can we bring the two matters together to provide something of a solution to that question? I would make some suggestions as to how we might do that. First, we might (as suggested above) do the obvious thing; we might give effect to the same logic about to be implemented in the Commons by implementing in the reformed upper chamber an equivalent rule of EVEL. Second, we might make the conscious decision, contrary to that logic, to reform the upper chamber in such a way as to bring the West Lothian question in to play – that is, to say that while the House of Commons is the appropriate locus of the constitution’s territorial logic, the upper chamber represents some overarching national (i.e., of the UK as a whole) interest, and so there is no difficulty if, in that chamber, legislators are voting on laws that apply to parts of the country which they do not represent. (Once upon a time, the opposite path might have been taken, with the Commons protecting the overarching national interest and the upper chamber that of the nations and regions, but that ship would seem to have sailed). We see what might be a nod to this sort of logic in the Bingham Centre’s report on devolution, which recommends “serious consideration of a reformed House of Lords formally representing in Westminster the nations and regions of the United Kingdom”. Third, and more ambitiously, we might use the upper chamber to produce a national lock on legislation relating to matters of some heightened (constitutional?) significance, so that it could be implemented only where a majority of the representatives of all four nations and regions were in agreement.

Each of these approaches would, assuming that they could be implemented compatibly with the doctrine of Parliamentary sovereignty, would reflect very different ideas of democracy and its relationship with the territorial constitution. The point, however, is that these are discussions that can be had only where you are willing to consider the constitutional order in the round and treat the different elements of it as aspects of an interconnected whole – something that all concerned have largely failed to do in recent years. Taken to its logical conclusion this amounts, of course, to a demand for a constitutional convention leading, probably, to the implementation of a codified higher-order constitution. There are good reasons for hesitating to make such a demand, but we should be clear that the longer we go on taking a reactive, blinkered view of constitutional reform, the more likely it is that we will end up in such a situation – the systemic tensions are already great and will eventually become irresistible, with Scotland still the most likely point of rupture, but by no means the only one. The relation between the upper chamber and the territorial aspects of the constitution is a relatively minor aspect of the broader picture at the current time, but one which captures quite neatly the need for an approach to constitutional reform which is more ambitious than that which has too often prevailed in recent years.

Paul Scott is a Lecturer in Public Law at the University of Southampton

(Suggested citation: P. Scott, ‘The Upper Chamber and the Territorial Constitution’ UK Const. L. Blog (22nd Jul 2015) (available at https://ukconstitutionallaw.org/))

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