Richard Douglas
Summary
- Current proposals do not give
due consideration to the prospect of constitutional gridlock.
- The mantra of 'checks and balances'
actually reflects a view that wishes to hamper government and
undermine democracy, not improve it.
- Some alternatives are proposed,
mainly to highlight shortcomings of the Government's proposals,
and caution against their adoption.
- It is suggested that the Lords
remain unelected, but be reformed—e.g. by creating two classes
of peers, one with the right to sit in Parliament, one without.
Background
I do not represent any organisation, nor am I a specialist
in constitutional affairs. I have some first-hand experience
of the workings of Parliament, having worked as a committee specialist
for the Environmental Audit Committee from 2006-09, in which capacity
I was an Officer of the House of Commons. During that time I also
supported a joint committee of both Houses, the Joint Committee
on the Draft Climate Change Bill.
I am making this submission because I believe the
prevailing debate concerning the primacy of the House of Commons
overlooks an important argument. My concern is that, without greater
thought, proposed reforms could undermine the democratic mandate
of the Commons, and with that the idea of the state as acting
in the public interest.
Primacy of the House of Commons
Most of the debate on the issue of primacy of the
Commons focuses on the potential for legislative gridlock, should
a reformed upper house be emboldened, through its democratic mandate,
to challenge the Commons on equal terms. The responses to this
tend to fall into two. One minimises this as a problem, by pointing
to existing arrangements which limit the role of the Lords; these
could simply be continued, it is said. The other says that gridlock
would be no bad thing, if it represented the balance of opinion
between two elected houses.
A characteristic example of the first is given in
the 2007 white paper on Lords reform introduced by the then Leader
of the House of Commons, the Rt Hon Jack Straw MP:
Although the primacy of the Commons is historically
derived from its elected mandate, primacy no longer rests solely
on this fact. Primacy is made real by the different functions
exercised by the two Houses, and their different roles. The Government
cannot govern without the support of the Commons, the Commons
controls supply, and the Commons has the final say on legislation—this
is how the primacy of the Commons is now expressed.
It is hard to believe that this was introduced by
a Leader of the House of Commons. Read it, and we find the suggestion
that the primacy of the House of Commons does not rest solely
on its democratic mandate! On what does it rest, then? On …
its terms of reference. As though it were some university
admin committee.
Let us ask the important question: who sets its terms
of reference? On whose authority are the powers and role of the
House of Commons decided? If it is not the democratic authority
of the people, then … what are we saying? That the democratic
authority of the people can be outranked by some other authority?
No. The primacy of the Commons results from its being the elected
will of the people. If the House of Lords were also to be elected,
then there would be another version of the Commons. Or rather
its authority would be the same, even if its initial 'remit' were
different.
After all, by what logic are governments formed in
Britain? Whichever MP can command a majority in the House of Commons
is invited by the head of state to form a government. This is
what makes the government, the government: that it commands a
working majority of the representatives of the people's will.
If an upper house were elected, then it, too, would represent
the people's will. By what logic or authority would whichever
party or parties which commanded a majority within it not be entitled
to form the government? If the answer to this is that the Commons
has a different remit, then it is saying that the government's
authority is not primarily derived from a democratic mandate,
but some other rules. If rules can be used to outrank the democratic
mandate of one house, what's to say there couldn't be other rules
or conventions which outranked or undermined the democratic mandate
of the other?
There appears to have been a certain amount of complacency
among many MPs on this issue for a number of years. One can gain
a further sense of this from a Public Administration Select Committee
report on another iteration of these proposals, this time from
2002:
The Government, and some members of the Lords, have
laid particular stress on the threat which would allegedly be
posed to the pre-eminence of the Commons by a more legitimate
reformed second chamber. We are satisfied that the Parliament
Acts provide sufficient safeguards against that. The differences
in powers between the Houses are already very clear. These have
only to be identified for any argument on this point to be removed.
The Commons can pass legislation without the consent of the Lords,
after delay of about one year. But the Lords cannot pass legislation
without gaining the consent of the Commons. The Commons only has
to wait one month before passing a money bill without the consent
of the Lords. Governments are formed, tested and held to account
in the Commons. They have to retain the confidence of the Commons
if they are to retain office. Only the Commons can make or break
governments. We therefore do not believe that a reformed, more
representative second chamber will pose a threat to that status.
Moreover, our proposals are intended further to strengthen the
distinctiveness of the second chamber, and so increase the effectiveness
of Parliament as a whole.
The weakness in these arguments it that all the powers
to rein in the Lords cited in the above paragraph hail from the
authority of the Commons; when it says Parliament can decide what
role the Lords should play, it means (as is currently the case)
the Commons, with advice (conforming to its current role) from
the Lords. The Parliament Acts, hobbling one house, are only tenable
in a democratic age if the upper house is not democratically elected.
Embracing the prospect of gridlock
Another prevailing view, that which embraces the
potential outcome of legislative gridlocks, is well represented
by an Unlock Democracy policy briefing:
Some people are concerned that an elected second
chamber would want to use its powers more than the current House
of Lords and that this would create more gridlock. As long as
it is clear which is the more powerful chamber and how the dispute
can be resolved, as it is in the UK, then gridlock is not necessarily
a bad thing. It means the second chamber is doing its job: examining
proposals for new laws and asking the government to think again.
Why is this wrong-headed? There are three, related,
reasons. One, it would potentially lead to a chronic condition
in which the effectiveness of the government to take action were
undermined. Two, this would potentially discredit politics and
the idea of state action. Three, while a proportion of those advancing
this as a view will be classical liberals who are suspicious of
government, probably the majority will be left-wingers who believe
in a strong and active state.
The mantra of 'checks and balances' tends to get
invoked in the aid of this, the flirting-with-gridlock, view.
Where does this come from? The ideas of Locke, and the example
of America. These are, let us remember, the ideas of moneyed classes
who want the state to protect them, certainly, but equally want
to be protected from the actions of the state. They do not identify
themselves with the state. They see it as an alien power. The
checks and balances in the American constitution were designed,
and have worked with great success, to hamper the ability of any
government to act. Such checks on state power have not abolished
the abuse of power. They have, primarily (and increasingly so
in recent years), reined in the state from curbing the wealthy
from exerting power over those below them. In so doing they have
encouraged a widespread cynicism about politics—fostered,
of course, by those who stand to gain from such disengagement.
There is an alternative to the Lockean conception
of government: the Hobbesian. Thomas Hobbes viewed those controlling
the state as being the embodiment of all the people who comprised
it. The government thus acted with the authority of the people
in everything it did. Hobbes's views have been characterised as
totalitarian, as justifying untrammelled exercise of power, and
removing any basis on which the individual could protest against
abuse by the state. In another way, his ideas are intrinsically
democratic, since he makes the entire basis of state authority
the (even if conjectured) agreement of the people to be represented
by it. The closer the state is to the people, and the more democratic
participation there is, the stronger and more legitimate the state
becomes.
It is, I would argue, by virtue of these ideas that
MPs gain their status and authority (or what should be their status
and authority). Irrespective of who they are as individuals, as
MPs they are something greater. They are not simply people who
have happened to come first in some contest or other, even an
important one. They are the representatives, the embodiments,
of the people of their constituency; they speak and act in their
constituency's name.
Under a Hobbesian concept of the state, it is a nonsense
to create a second elected house of parliament. There aren't two
peoples; there can't be two embodiments of the people. And if
the second isn't an embodiment of the people, then the first isn't,
either. At which point the idea of the state as acting in the
people's name collapses; and you have instead the idea of the
state as an alien thing, something run by professional politicians
and civil servants for their own ends. An outcome which many on
the liberal-left spectrum would surely deplore.
Whom is a second chamber for?
Most discussions of why we need a second chamber
at all concentrate on the question of what it should do.
Perhaps the right question to start with, however, is whom
is it for? To ask this is to think about how we got here,
why it is we have a House of Commons and a House of Lords?
To think about this is to remember that they were
originally representing different estates, the gentry and
then middle class (though always, to an extent, representing the
common man), on the one hand; and the nobility and bishops, on
the other. With the king above them. And how did the Commons come
to achieve pre-eminence, first over the king, and then the Lords?
Partly, of course, it's a reflection of the rise of the economic
power of the middle classes from the seventeenth century onwards.
But even more than this, it's because of the triumph of the democratic
ideal. This dictated that governments would be formed by those
parties which won elections; this dictated that the views
and powers of elected representatives were greater than those
of the unelected (and increasingly anachronistic) Lords; this
dictated that the Lords accepted this state of affairs. As the
democratic ideal has triumphed, so have all the old estates collapsed
into one: the people. The Commons is the house which represents
that estate, the people. The Lords has only survived because it
has renounced its power.
Alternative proposals for an upper house
To pick up the question of whom might an upper house
be for, we could begin by thinking about what other important
interests are not represented, or not adequately represented,
by the representatives of the people as a whole.
This could be different peoples, in the sense of
the alternative local, regional, or national communities we all
belong to in addition to that of British society as a whole. The
logic here would suggest creating an upper house with representatives
with an explicit mandate to ensure the Government were considering
the interests of their region or nation. This could potentially
be done by indirect election, possibly meaning membership were
automatically extended to local authority leaders, MSPs, AMs,
and NIAMs, or their delegated representatives.
They could also be the people as defined and divided
by important social identities. The logic here would suggest an
appointed house made up of representatives from a variety of interest
and representative groups, including religious faiths, professional
associations, unions, business groups, and scientific and cultural
bodies.
Another set of interests could be the people of the
past and of the future, whose memories and prospects would not
always coincide with the interests of the people of the present.
The logic here might suggest an appointed house with members selected
for their distinguished contribution to British society, especially
in an intellectual capacity.
A final, and certainly radical proposal, would be
for the roles of the Commons and Lords to be reversed, with a
Lords 100% elected under pure PR, out of which the government
would be formed, and the Commons made into the revising chamber
with an explicit mandate to represent local interests. Although
almost certainly unpalatably radical for most, this idea would
have clear logic on its side. At the moment, there is a deficiency
in the ability of the Commons to represent the people's will:
the electorate does not vote as one people, and it does not vote
for the government, simply for individual, local representatives.
In practice, of course, voters, especially at general elections,
overwhelmingly do vote for whichever party they want to from the
government (or to help keep a different party out of government).
But it is an imperfect arrangement.
Some people advocate switching to PR to remedy this.
One of the drawbacks of this proposal is that it would lose the
link between constituents and their local MP. PR enthusiasts tend
to address this by pointing to varieties of PR which still allow
people to vote for and be represented by individual MPs. But these
systems suffer from one of two flaws: either you have large, multi-member
constituencies, in which the mechanics of the system are difficult
to understand and the link with a local representative is weakened;
or you have a top-up system, which creates two classes of politician,
those with a direct mandate (and casework), and those without.
For these reasons, I'd suggest retaining the essential
structure and voting system of the Commons, but making the Lords
elected on pure PR (voting for parties, not people), whose outcome
would determine the executive. The Commons would then perform
the role of scrutinising and revising chamber (though with greater
powers than the current Lords), to which MPs as backbenchers,
with personal mandates and high profiles, are well-suited. To
help avoid gridlock it would make sense to elect MPs in tranches,
say, a quarter a year (e.g. if general elections were made every
four years).
Conclusion
All of these proposals are, of course, far too radical
to be of any immediate use in the Committee's deliberations. I
offer them by the way of criticising what is proposed,
and to caution against its adoption—since a reformed Lords,
with a democratic mandate, would be much harder to fundamentally
alter, even if highly flawed.
My final remarks on the proposed reforms are that
the proposals for election by STV are misguided, for reasons touched
on above: the mechanics are impossible to explain on the doorstep,
and the constituencies far too big for there to be any personal
link. The White Paper even likens the system to European elections:
but MEPs hardly have any personal link to their electorates. For
this reason, elected members are likely not to have a personal
mandate, and since unable to win a seat as an MP, be party apparatchiks,
less able to provide scrutiny than the Lords today. The rest of
the house would be made up of the entire leadership of minority
parties: nothing wrong with their being represented in Parliament,
but their interest would not primarily be in scrutinising legislation
but grandstanding and campaigning.
A further reflection on the current proposals is
that the majority of those voting will not particularly understand
or care about the role of the upper chamber: most will simply
vote for the same party they vote for in all elections, with some
voting for a different party out of the knowledge that this election
is less important and that party will never form the government
(e.g. they might UKIP or Green, out of a sense that the main parties
were not representing certain points of view). Either way, it
will have an imperfect mandate: most will still just be voting
for whom they want to form the government, with the rest not casting
their actual first preference vote. Of course, one could try to
minimise this by holding elections separately from general and
national elections—but then turnout would likely be dismal.
I would suggest the best course of action would be
to reform the current Lords, but leave it unelected. My main suggestion
would be to reduce numbers, and make two classes of peers, one
with the right to sit in Parliament, one without—so that
those in Parliament were specifically chosen for that role, while
others could still be honoured with titles for whatever reason,
but did not have a parliamentary role. And, if we are going to
retain Church of England bishops in the House, representatives
of other faiths—and some philosophers—ought to be
made members automatically.
Finally, I would suggest that consideration of a
more radical reform of the Lords not be abandoned, but be subjected
to more thought.
8 January 2012
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