Tuesday, December 30, 2008

A future UK Senate?

Over on ConservativeHome: CentreRight, Daniel Hamilton has posted How would you reform the House of Lords?. This issue has rather gone off the boil for the time being, but cannot evade resolution forever. And I think it's about time the Conservative Party took a lead in constitutional reform, rather than adopting a "no change at all" position at the time and then having no ability to influence the outcome, then being unable to do anything more than complain at the result (see for instance Scottish devolution).

Last year I wrote a series of posts on second chambers looking at some of the upper houses in other parliamentary democracies to see if there is anything in them that could be copied. Some good ideas stand out, but what is also clear is that different countries use the second chamber for different things, which comes to the nub of the problem.

Fundamentally there are three questions about reform of the House of the Lords that need to be answered in order. They are:

1). What role in the system should the second chamber play?
2). What powers should it have?
3). How should it be composed?

Unfortunately nearly everyone dives on the third question and then spends forever debating such minutiae as the ratio of elected to appointed members, voting systems and constituencies rather than grappling with the first two.

But it is in answering the first two that will lead to the answer for the third. Now many upper houses around the world are part of federal systems, with the upper house designed as a states's rights chamber, to mirror the lower house reflecting the people. This is true of the Senate of Australia and the Bundesrat of Germany, and for that matter also of the Senate of Canada and the Rajya Sabha of India. Now this takes us into the difficult point that in the UK power is not evenly devolved and none of the four parts has the same level of power. This is not a federal country and so does not need a federal upper house.

Similarly it is often suggested that the upper house should be composed of representatives from local government (indeed Daniel suggests this in his own post). But does local government, primarily an administrative matter, really need such a direct link to the legislature?

The House of Lords may once have been a house to represent a key political interest group (the great landowners) but it has evolved into a chamber that primarily scrutinises and amends legislation, occasionally acting as a check on the powers of the lower house. This should remain the role post reform, answering the first question.

So what powers should it have? The first, and easiest to address, are those over supply (or the Budget). For a parliamentary democracy to function effectively there must be a single body that decides the government, including the crucial power of access to revenue. Anyone familiar with the 1975 Australian constitutional crisis will be aware of the mess that arose because both houses had power over the budget, resulting in a direct clash with the constitutional principle that governments live and die in the lower house. (One could, I suppose, give the power to a joint sitting of the two houses but it would have to be immediate.) It's notable that most upper houses founded in Westminster system democracies since 1911 have tended to have the supply powers restricted in precisely this way.

I would also have an assumption built in that if the two houses conflict then ultimately at the end of any dispute resolution procedure then either the overwhelming will of the Commons should prevail over the upper or the electorate should settle the matter. This will take more than a mere one year delay as presently in the Parliament Act. The starting point should be that if a bill can't get through the upper house it either dies or a special mechanism must be invoked that requires a more substantial threshold than a normal majority in the lower house to override it. Perhaps the Commons should have a 2/3 majority to override a bill failing in the upper house, or there should be a joint sitting (with the numbers in the upper house always deliberately smaller than the Commons) or perhaps each house can have the power to refer a bill directly to the people if the other house will not pass it. (After all if we're allowing the Commons the chance to get its way over the upper house, why not the reverse?) We may also give the upper house extra powers in particular areas. Currently it has an absolute veto over postponing general elections. What about giving it an absolute veto over all matters affecting the Commons, including voting systems, raising MPs's salaries and so forth? I admit this section is not as fully thought through as it could be, but there are several clear possibilities.

Finally we come to the composition. Again there's an easy starting point followed by a quick descent into murk. But it's notable that many upper houses around the world have staggered elections, so that the entire chamber is not elected in one go. This is a useful check against a sudden convulsion in the Commons and allows for the upper house to take a longer term view. Beyond this it gets murky.

As I said above, I don't think the upper house should be converted into a states's rights or local councils's chamber, so filling it with nominees from elsewhere in the system isn't in line with this. And since it wouldn't be aiming to represent a particular element I don't think a deliberate malapportionment such as an equal number of members per county (where London and the Isle of Wight would have parity!) would work. But what about an elected chamber that transcended the limitations of geographic representation?

It is here that I must acknowledge inspiration from the two Irish Seanads - the Irish Free State Seanad and the present Seanad Éireann. The former had a country wide election that resulted in some Senators being elected who represented particular groups in society who would not normally have been well represented in a constituency based system. The latter has both members elected by university graduates and members representing "Vocational Panels" that seek to represent the key strands in Irish society (Administration, Agriculture, Culture & Education, Labour and Industry & Commerce). Now the Vocational Panels have come in for criticism as being elected by party politicians and producing party politicians, but the university seats routinely elect independents and show a willingness amongst voters to not let the upper house be a total partisan walk-over.

Now a UK wide election for even eighty upper house members could get very messy if using a single constituency. But what if for the upper house voters could register as a member of one of a series of groupings, with each grouping electing a number of upper house members by postal vote using the Single Transferable Vote? (The concept of separate electoral rolls with choice as to which one is one is common - perhaps the best known example in the Anglosphere are the Māori seats in the Parliament of New Zealand.) A mechanism could be established to monitor the individual rolls and allow for the addition and removal of groupings as deemed necessary. Voters could vote by post to elect a proportion - say a third at a time - of the upper house. The nature of the upper house seats could encourage candidacies and voting on a different scale from the Commons, breaking the partisan deadlock and encouraging independent candidates with suitable backgrounds. And UK wide elections could help represent groups in society who frequently find they are too scattered and divided to be listened to in the Commons.

This would be a radical change for the upper house (we couldn't really carry on calling it "the Lords" so I guess "Senate" is as good a working title as any) but one that has very few elements that have not been tried and tested before. Maybe this could be the way forward...


Nick Roche-Kerr said...

I think the problem here is that we haven't addressed a fourth question: does the United Kingdom need an upper house? Under the old principles, that the upper house represented a check against the Commons and acted as the highest court in the land, there was, perhaps, some justification for its existence. Yet in a system where we shall have a new Supreme Court, what actual benefit does the upper house provide?

As you've pointed out, the federal systems of Germany, Canada, and Australia all have upper houses, yet you've also pointed out that Britain is not a federation. The closest example, in terms of utilitary state, is New Zealand, which chose to abolish its Legislative Council in favour of a unicameral parliament. Why should we continue to try and pervert democracy, through constantly establishing more 'elected bodies', when a single body (the House of Commons) would suffice for national issues?

I am not trying to deride your argument, but I do not think we have examined the purpose of an upper house in the first place. It is no good asking what role an upper house will play until we have established why we need one at all. In that sense, a small unitary state does not need one, as it provides only another layer of 'balance', but balance from our own elected representatives (whether one likes the current House of Commons or not).

As such, I think any Conservative spearhead must lead towards examining that question, perhaps looking more radical than Labour. If we are the defenders of the old system, then let that be our lot, but if we are actually examining a fundamental change in the Constitution then we should start at the beginning and not insist on having something solely because other, non-comparable, systems have it.

Tim Roll-Pickering said...

Upper houses are not exclusive to federal countries. There are non-"states's rights" upper houses in Ireland, Japan and the Czech Republic to name but a few, to say nothing of many upper houses in individual states in federal countries. We could trade examples each way endlessly.

The New Zealand Legislative Council as abolished in 1951 isn't really comparable to the House of Lords in terms of impact on the legislative output. New Zealand is a much smaller and politically homogenous state compared to the UK, and so their Parliament doesn't have the level of activity ours does, plus there are other checks and balances in the system.

The main reason for having an upper house in the UK is the need to have a chamber that both revises legislation (the Commons is overworked and often produces messy Bills that only get polished in the Lords) and can act as a check on the power of the Commons. In general the Lords has served this function well and there's little to suggest that transferring all its functions to a unicameral Commons would make for a better outcome. Hence why outright abolition has never been moved by any majority government no matter how frustrating they've found the Lords of the day to be.


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