The Brown Commission has recommended replacing the House of Lords with an elected Assembly of the Nations and Regions of the UK. In recent posts, the Commission’s proposals for legally empowering the Assembly to scrutinise bills and to protect the constitution have come under criticism on several grounds. First, there are concerns that the Assembly would be unable effectively to scrutinise ordinary bills, as unlike the Lords, the Assembly would lack the legal power to delay such bills. Second, the Assembly would be vested with the power to veto bills which amend existing constitutional arrangements. Yet the Commission not only fails to provide a definitive list of existing constitutional statutes that could be protected by the veto but also envisaged that in exceptional circumstances the House of Commons may still assert its primacy through a specific but currently undetermined processes. Thus, it has been argued the proposed position is not drastically different from the existing legislative process established by the Parliament Acts. Third, there is an implicit concern that the Assembly’s elected membership may hinder rather than facilitate the Assembly in scrutinising and protecting the constitution.
From a formalistic legal perspective, these proposals suggest the Assembly would be in a weaker position than the Lords. However, bicameralism cannot be understood solely by analysing formal legal powers. Bicameral relationships are heavily conditioned by issues of political legitimacy. The political legitimacy of a second chamber matters because it may enhance or diminish the exercise of formal legal powers. When a second chamber enjoys a high degree of legitimacy within a political community, its legal powers are informally enhanced, as the first chamber is discouraged from exercising its full legal powers to override the second chamber. Conversely, a second chamber deprived of legitimacy may be rendered unable to exercise its legal powers to the fullest extent against the first chamber.
In this post, I want to offer a more positive assessment of the Assembly’s potential powers by reflecting on how the proposed Assembly’s potential legitimacy may affect its capacity to scrutinise bills and safeguard the constitution. When understood through the lens of political legitimacy, the Assembly’s legal powers may be more significant than first assumed.
Establishing Political Legitimacy in the Shadow of the House of Lords
As a new constitutional institution, the Assembly would need to establish its political legitimacy to rebut accusations of being a constitutionally redundant constitution feature and inferior to the House of Lords. Legitimacy is necessary for exerting influence within the legislative process and for resisting calls for unicameralism. The quest for legitimacy is therefore likely to play a major role in shaping the behaviour of the initial Assembly membership, as they would be unable to pursue their respective short and long-term political goals without a sufficient degree of legitimacy. Although the fact of having an elected membership would vest the Assembly with some degree of legitimacy, this would not be sufficient on its own for challenging the Commons, which is not only an elected chamber but also the historically dominant chamber. The membership would need to generate further legitimacy through differentiation from the Commons.
We can reasonably expect the membership to present the Assembly as a radical departure from existing public perceptions of the Lords. Yet, there is also potential for the membership to learn from and emulate the successes of the Lords in generating legitimacy. Despite its unelected nature, the Lords has been successful at generating a sense of political legitimacy through differentiating itself from the Commons. After all, constitutional scholars and parliamentarians praise the Lords for having developed an institutional culture that promotes sober debate and cross-cutting scrutiny through specialised committees. Such legitimacy as the Lords possesses flows largely from the ability of peers to show how the Lords’ strengths counterbalance the perceived weaknesses of the House of Commons.
We should reasonably anticipate that members of the new Assembly would be very conscious that they were being judged against the positive aspects of the Lords by those within and those outside of Westminster. This may be valuable in incentivising the membership to emulate the working culture and practices of the Lords, at least during the initial period of the Assembly’s life. This could include a strong focus on promoting sober debates and the continuation of cross-cutting committees. We should be careful, that is, not to assume that Assembly members would mimic the behaviour of their elected counterparts in the Commons, as doing so would jeopardise their capacity to generate legitimacy through differentiation.
There are pro-active steps that could also be taken to further incentivise the Assembly membership to emulate their predecessors. Given that the Brown report does not propose setting up the Assembly within a new purpose-built chamber (and given limited public finances) the Assembly would be most likely to sit in the current Lords chamber, surrounded by many parliamentary staff carried over from the Lords. Here the physical chamber itself and the parliamentary staff may function as carriers of institutional practices and narratives from the Lords to the Assembly. Another option would be to ensure that some former peers were elected to the Assembly, also to generate institutional carriers. Here, as Tarun Khaitan has argued on this blog, the choice of electoral system and agreement among the major parties would be crucial. The adoption of a closed or semi-open party list based electoral system, coupled with a declared constitutional convention regarding the fielding of candidates with sufficient level of policy expertise would be a welcome option.
The Assembly could also differentiate itself from the Commons through showing a clear institutional telos; a political narrative that communicates to both its members, other constitutional actors and the public, the function of the Assembly within the constitution. The membership may draw upon and combine the Lords’ focus on specialised scrutiny with the Brown report’s vision of a constitutional guardian. As Aileen McHarg has rightly argued, MPs and Peers currently have insufficient incentives to safeguard constitutional arrangements such as devolution. This is partly because MPs and Peers work on the assumption that the Commons and Lords are already a sufficiently politically legitimate part of the constitution. In contrast, the Assembly members would not share this luxury. The legitimacy of their role could not be taken for granted. Consequently, they will be unable to avoid this task of developing a clear constitutional telos, which is vital to establishing the legitimacy of the Assembly.
Power, Legitimacy, and the Assembly within the Legislative Process
If the Assembly can establish its legitimacy, particularly over constitutional matters, the UK government and the Commons will be discouraged from altering the constitution without the consent of the Assembly, enabling political entrenchment in at least five ways.
First, if the Assembly is perceived both within and outside Westminster as having a relatively high degree of legitimacy, it might continue to amend or delay ordinary bills as the Lords currently does, regardless of the legal primacy vested in the Commons. We should remember that the Commons has only sparingly exercised its legal primacy over the Lords. In a healthy collaborative bicameral relationship, the exercise of legal powers asserting primacy should be used rarely and reserved for the most intense political stalemates.
Second, a legitimate Assembly may exert influence through generating the fear of defeat among ministers, prompting preventative actions, such as withdrawing bills or tabling amendments that respond to parliamentary criticism, in order to avoid an embarrassing parliamentary defeat. This would be the case particularly if ministers are conscious that a bill has already proven controversial within the Commons. Given that parliamentary time is extremely limited, ministers have strong incentives to avoid prolonged and politically difficult parliamentary struggles over controversial bills. Therefore, they may table amendments to address the Assembly’s concerns in anticipation of potential defeat.
Third, a legitimate Assembly may exert influence if it can prompt the government and the Commons to effectively internalise the Assembly membership’s understandings about what can be considered constitutionally appropriate behaviour and legislation. If this occurred, government bills would need to be developed from the ground up around understandings about what parliamentarians in the Commons and the Assembly would be willing to accept. Once again, it would reflect the fact that ministers have strong incentives to avoid wasting time and political capital on parliamentary struggles.
Fourth, a legitimate Assembly may exert influence through setting the agenda on constitutional matters. A legitimate Assembly may achieve this by highlighting constitutionally-significant issues within bills and so placing them onto the political agenda. When the Assembly speaks as a ‘guardian of the constitution’, other constitutional actors and public would be more likely to listen, allowing constitutional issues to enter the political discourse more readily. Alternatively, the Assembly may exert control of the constitutional agenda if constitutionally-important bills start within the Assembly. In these circumstances, the Assembly may set the parameters for the Commons’ consideration of the bill.
Finally, although many of the Commission’s proposals are framed in response to ongoing concerns about the current and potential future government attempts to reconcentrate power to Westminster, we should not assume all government bills regarding the constitution pose a threat to the existing constitutional arrangements. Rather, some future government bills may refine and develop existing constitutional arrangements. On this understanding, there is potential for a legitimate Assembly to work constructively with the government to enhance and support constitutional reform.
The Brown report’s proposals on the powers for a new Assembly may appear to be ineffective for the entrenchment of certain constitutional arrangements, yet their potency may stem from the potential political legitimacy of the proposed Assembly. There are, of course, various other issues with the Brown report’s proposals that need to be addressed, some of which may affect the legitimacy of the Assembly, particularly from the perspective of the devolved nations. Retaining some formal legislative delaying power may also be prudent in the long-term. Nevertheless, given public dissatisfaction with the unelected nature of the House of Lords (which no doubt further drags down the general legitimacy of Westminster as a whole), enhancing the legitimacy of the second chamber as means of safeguarding the constitution remains a very welcome idea, one worth exploring and refining further.
Robert Greally, Lecturer in Constitutional Law, University of Bristol
(Suggested citation: R. Greally, ‘The Brown Report: Political Legitimacy and the Power of the Assembly’, U.K. Const. L. Blog (26th January 2023) (available at https://ukconstitutionallaw.org/))