A Federal Way Forward

Ever since the late 1990s the Federal Trust has held conferences and seminars on the British constitution with specific reference to devolution. A significant number of books and papers have been published, including in 2006 “Modernising British Government” written by Professor Stanley Henig and with a foreword by Roy Hattersley. In the light of current proposals and discussion positing a new role for the Second Chamber of Parliament as a means of linking devolved authorities with central UK governance, we are placing on our website an extract from this 2006 publication.

A Federal Way Forward

by Stanley Henig

Most second chambers in the democratic world have two roles – scrutiny and legislation. Second chambers may also have a special role as a kind of legal or quasi-legal constitutional watch-dog, although this may alternatively be the preserve of a special constitutional court. All of these are considered below. The House of Lords has in the past enjoyed a significant judicial role in a wider context: as the highest court in the land, although only a few of its members are involved. Parliament has already legislated to transfer that role to a new supreme court in the near future: some of the implications are considered in a separate section appended to this chapter.

Beyond the House of Commons, the role of scrutiny is not the exclusive preserve of the second chamber. In a pluralist society pressure groups and the media may well be equally if not more effective. However, it is worth noting that in this respect the House of Lords, however constituted, does possess a degree of legitimacy as a constitutionally recognized institution operating in an open and transparent manner. Inevitably, though, this is weakened by the lack of a democratic base and the absence of any accountability. Since much the same is true for pressure groups and the media, there is an important role for a reformed and modernized second chamber. Effective scrutiny of the executive and checking the ‘constitutional lock’ should be a means of adjusting the imbalance in political power discussed in the first chapter. As currently constituted, the House of Lords tends to reflect and even reinforce that imbalance.

The argument is even stronger where legislation is concerned. Any involvement by an all, or mostly, appointed chamber in the formal legislative process must be completely unacceptable from any democratic perspective. Since there does seem to be broad agreement on the need for a second chamber to fulfil a legislative role – technical, detailed and revising – it follows that it has to have a quite different composition, ultimately based on some kind of democratic mandate.

Scrutiny and legislation are key facets of governance in its wider context. Earlier chapters in this book underscored the importance of concepts such as balance and separation of powers in federal thinking. Countervailing centres of authority to the House of Commons/executive nexus, revolving around a majority or majoritaire party, must make for better governance. A codified constitution would ideally spell out ways in which various central and devolved institutions might help to achieve this. There is a sense in which the absence of such codification lends even greater potential importance to institutions outside the nexus identified above. In summary, diffusion of power is for federalists an important goal in itself: in a large, complex and modern state this is sufficient justification for a second chamber. When that state lacks both a codified constitution and any kind of constitutional court, the need is even more urgent. The current composition of the House of Lords, even its class ridden title, inhibits adequate fulfilment of that role.

Within the corpus of federal thinking there is also a strong presumption in favour of constitutional coherence: perhaps this more than anything else differentiates federalists from both new Labour and Conservatism. Since 1997 Labour has introduced a variety of constitutional and institutional changes under the broad, if not very meaningful, banner of modernization. Devolution has been an important feature. Scotland and Wales have functioning devolved authorities; those for Northern Ireland exist in theory but not currently in practice; London has what is in effect a regional government; new responsibilities are to be given to existing English regional assemblies; localism has been rediscovered and there have been some measures to promote the autonomy of local authorities. The descriptor often used is ‘asymetrical’. A virtue fashioned by necessity, the word may obscure the lack of coherence. A related concern is that the changes are neither constitutionally entrenched nor even consolidated. From the perspective of federal thinking, this is a context within which the uncompleted reform of the House of Lords may offer an opportunity to begin some sort of coherent restructuring of our unwieldy, somewhat inflexible and rather messy constitution.

The territorial dimension

In this context there is also a potential new role for a second chamber. The extension of territorial governance at different tiers must sooner or later occasion jurisdictional controversies. It seems improper – it certainly is not transparent – to hope that they can be sorted out through informal channels when the same party is in power at different levels. In any event the latter condition may not always be fulfilled. Sooner or later there will be a Westminster government which is not broadly sympathetic to the concept of Scottish and Welsh devolution and an executive in Edinburgh and/or Cardiff anxious to demonstrate its autonomy. There needs to be a centre for what might be termed conflict resolution. The parliamentary acts establishing devolved governments are frequently expressed in arcane language; those relevant to local government are scattered throughout the statute book. There is certainly an urgent need for a codified constitution and this will in turn promote the necessity for a constitutional court of some kind. There could still be a role for a court equivalent even in the absence of a codified constitution and I will return to this concept later in this chapter.

The previous paragraphs have examined a variety of possible of roles for the second chamber. In turn this should be the context for debate about membership.

Electing a second chamber

Prima facie, direct election of a second chamber would seem to have the strongest democratic credentials. However, it should also be recognized that direct election is not the only possible basis for democratic mandate. The problem with direct election is that, unless the electoral system is different, the second chamber will bear an extremely close resemblance to the first. Given that the House of Commons is elected by the non-proportional and non-preferential first past the post system, employing a system of proportional representation for the second chamber would offer a contrast. If the two elections were held simultaneously, the party forming the government would probably also be the largest in the second chamber. Although most proportional systems do give some advantage to the largest parties, ‘third’ and minor parties – especially those lacking a territorial base – would be the main gainers.

It is generally assumed that elections for the two chambers should be simultaneous. Holding the second chamber elections separately from those for the first chamber could invite a relatively low turn out; timing them for mid-term would also be quite likely give an unnatural boost to ‘opposition’ parties. Another possible variation, clearly welcomed in some of the reports, would give members of the second chamber a longer period of office with re-election by, say, thirds. Successive partial elections would coincide with general elections. In theory individual members would thus have a normal term of office of twelve to fifteen year, depending on the proximity of general elections.

Overall the political composition of the House would reflect opinion over a longer period of time, potentially dampening any current government’s level of support. In theory this would make for a more experienced second chamber: in practice it would to some extent distance members from the more routine aspects of party politics. There would, though, be a tendency – very much in line with most second chambers elsewhere – for such a body to be more conservative (with a small ‘c’). Hypothesizing and projecting backwards, if this system had been in force from the 1950s, Labour would have been the largest party in the House of Lords during the years of Edward Heath’s premiership, whilst the Conservatives would probably have been the largest party from 1997 to 2001, despite Labour’s huge electoral mandate.  Be this as it may, there is something slightly odd about this whole approach. If there is a desire to have experienced representatives in the second chamber, the solution is in the hands of the electors – assuming they are to be trusted!

Of those EU member states with a second chamber, only a small number have opted for the all directly elected variety. Others have chosen from a variety of forms of indirect election. Some involve appointment by directly elected regional assemblies or local councillors. Many of these systems are based on the concept of regional/territorial representation. Most of the documents on House of Lords reform devote some space to this idea, but a good deal of the discussion about possible direct representation for devolved institutions is confused. Reports on the House of Lords not infrequently contain phrases about regional issues along the lines that Britain is not, and is unlikely to become, a full-blown federation. Undoubtedly true, but few, if any, federalists would have had any illusions on that score.

It hardly needs restating that federalism as a way of thinking and federation as a government structure are not the same thing. Experience elsewhere in Europe demonstrates that the impact of federal ideas and federal thinking is by no means limited to formal federations. Certainly, direct representation for localities and regions in central governance through the medium of the second chamber seems to be an indispensable part of a fully federal system. However, many non-federations employ a territorial (albeit not necessarily regional) basis for direct or indirect election to the second chamber. France, Ireland, Netherlands and Spain are examples. Second chambers need some form of legitimization if they are to be an effective part of the democratic process. Direct election is one route to legitimization. Indirect election offers an alternative, especially if there is some kind of territorial/regional link.

In this context a simple affirmation that political parties and the Independent Appointment Commission should take regional factors into account when nominating for the second chamber is quite inadequate as a means of promoting legitimacy. By definition the appointment process focuses on a potential member as an individual and he/she is appointed as such. All sorts of classifications and categorizations are possible, but an individual appointed in this way cannot represent a group or region in the sense of being potentially accountable to that group or region.

A specific proposal

Reforming the second chamber has been a constant perennial in constitutional discussions over the past century. During the past years of Labour government there has been a plethora of reports, discussion documents and proposals. There is widespread agreement that the present interim state is unsatisfactory. So the final section of this chapter draws on all the discussion and debate to formulate a specific proposal for a new phase in the government’s modernization programme. Based on federal thinking, it links the somewhat under-nourished concept of separation of powers at central government level in Britain with a new deal for local and regional government offering them a form of constitutional embedding.

To summarize the analysis so far, there is widespread agreement that a second chamber should have a general role of scrutiny and also a legislative function – technical and revising. The latter necessitates some kind of democratic mandate. In general, members should be either directly elected or indirectly elected by others holding a democratic mandate. It is also important that the process is transparent. (Thus, for example, the system whereby the German Länder governments appoint members of the Bundesrat has a transparency and legitimacy quite lacking in the method by which members of the House of Lords are currently appointed.) However, in addition to all this, the new second chamber could also be the means of entrenching or embedding regional and local authorities in the absence of a formal codified constitution and/or a separate constitutional court. Finally, an overall reform package offers the opportunity to create a remodelled second chamber as an institution of governance ‘fit for purpose’ – in the memorable words of the British Foreign Secretary commenting on the draft European constitution –  in the twenty first century.

A reformed second Chamber should have a professional membership with a professional purpose, which almost certainly necessitates a name change! Membership should be substantially reduced compared to the present House of Lords which is far larger than that of any other European second chamber. In principal, members should be paid as such and not rely solely on a totally non-transparent expenses system. It is now several decades since the distinction between Gentlemen and Players was abolished. It is time for our legislature to follow suite.

The composition of the new second chamber should be largely based on representation from regions and nations of the United Kingdom and also from both devolved institutions and local governance. I would propose that a minimum of three quarters of the members should be directly elected through a proportional open list system based on regions and nations. Most of the remaining quarter would be indirectly elected, drawing a specific mandate from devolved authorities and local government associations. Finally and exceptionally, there would be a few nominated/appointed places for faith leaders of all denominations and retired law lords. It can be argued that both categories would offer added value to the second chamber and that neither can seek a normal democratic mandate. An indication of the projected membership is shown below:-

PROPOSED COMPOSITION OF NEW SECOND CHAMBER

A. Elected by PR from nations and regions                      228

(Northern Ireland, Scotland, Wales, London, seven English Regions: seats allocated by population)

B. Elected by devolved regional authorities                      23

(Northern Ireland, Scotland, Wales, London – four each; English regions one each) *a

C. Elected by local government associations                   14

(Northern Ireland, Scotland, Wales – two each; Local Government Association –8. By PR) *b

D. Faith leaders                                                           10

E. Ex law lords                                                              8

 

TOTAL MEMBERSHIP – initially                                     283

Possibly rising to                                                       304 *c

 

NOTES

*a The English regional representatives would be initially elected by existing assemblies; directly elected assemblies would be entitled to elect four members each.

*b Members to be elected. For this purpose LGA includes all England but NOT Wales

*c Dependent on developments in English regions

In principle, elections would take place simultaneously with those for the House of Commons. The indirect nature of some of the elections might necessitate a slight delay in finalizing membership of the second chamber. I do not think this has any wider constitutional implications, since the political balance in the first chamber will determine the make-up of the government. With the bulk of members of the second chamber being elected at the same time as the first, the relative position of the parties is likely to be similar albeit muted through the effects of proportional representation. There are probably some advantages in drawing some members of the government from the second chamber: there could be a slight delay in making some of these appointments.  The great advantages of the above proposal are that it would virtually do away with direct nominations or appointments, whilst all potential members would be subject to a democratic process with the sole exception of a small number of faith leaders and ex-law Lords. Old-fashioned ‘behind the scenes’ government or party patronage would no longer be a factor. Another advantage is that the system would give some slight encouragement for a reconsideration of directly elected assemblies by English regions. This issue is dealt with in another chapter, but federalists would not want to lose sight of the possibility of a revival of English regional devolution. At present all regions have assemblies; none are directly elected; and the powerful government offices are not regionally accountable.

In principle the new second chamber should have a broadly similar scrutiny and legislative role to the present. I would, however, suggest three changes, two relatively small and the third much more significant. First, the power of veto over statutory instruments, even if never used in practice, seems inappropriate: it should be replaced by a shorter delaying power. Secondly, in the event of disagreement between the two houses, the issue should immediately be referred to a joint committee to seek to reconcile the differences. The intention is to reduce the number of occasions when government legislation is held up by the second chamber and is only implemented through use of the Parliament Act.

A constitutional watchdog

The more significant change, and very much in accordance with the over-arching theme of this book, would give the second chamber an enhanced role as a kind of constitutional watchdog at least until such time as we have a formal constitutional court. It is already the case that the second chamber’s agreement is needed for the House of Commons to prolong its life beyond five years. This should be formally restated: a positive vote of both to be a requirement for delaying a general election (of first and second chambers) beyond five years. The other specific constitutional function should be to act as a safeguard for regional and local authorities. The second chamber would have the power to delay until after the next general election any proposal to abolish a principal authority or substantially to reduce its competence, unless the proposal is endorsed by referendum in the affected area.

Mired by its dignified role, the House of Lords has never quite become an efficient part of the constitution. The proposals contained in this chapter are framed so as to confirm the significance of the second chamber as an organ of governance; to give it a real role as a constitutional safeguard; and to switch its membership decisively away from ‘grace and favour’ benefiting the ‘good and great’.

Appendix; the Supreme Court

This chapter has been devoted to the reform of the House of Lords and as such has focused on its work as a second chamber of Parliament, participating in the legislative process and acting as a balance to the House of Commons and a check on the executive. However, the House of Lords has also in a generic sense fulfilled another – in some ways even more important – constitutional role, albeit that most of its members do not participate in this work.

The House of Lords has been at the apex of our judicial system – in most respects, but not in quite all – the ultimate court of appeal. Only the Law Lords have contributed to this work, which lies separate from the other functions of the House of Lords. To demonstrate their impartiality the law lords have tended by constitutional lore and practice not to be involved in the other work of the House. Despite this there was a concern in the context of the devolution settlements (discussed elsewhere in this book) that from a Northern Irish, Scottish or Welsh point of view the House of Lords might be perceived as being too closely inter-twined with the Westminster/Whitehall nexus. So the role of acting as legal arbiter re devolution was given to the Judicial Committee of the Privy Council, an archaic sounding body – not otherwise discussed in this volume – which has a variety of roles in the context of British governance and the operation of legal systems of other members of the Commonwealth.

In introducing the consultation paper on the proposed new Supreme Court which would become responsible for the judicial work of the House of Lords and the role of the Judicial Committee re devolution, Lord Falconer, Secretary of State for Constitutional Affairs and Lord Chancellor placed the reform squarely in the context of the government’s modernization programme. He also emphasized the separateness of this new Supreme Court for the United Kingdom from the three court systems for England and Wales; Northern Ireland; Scotland.

It is difficult to think of any more significant reform in the context of the long-term evolution of our constitution. We do have checks and balances, but they are largely based on convention and lore rather than formal constitutional law. The powers of governance are to an extent separately located, but our unwritten constitution is not based on, indeed it scarcely recognizes, any formal separation of powers. The Lord Chancellor, one of the two posts now held by Lord Falconer, epitomized the uniformity of governance. Historically the Lord Chancellor fulfilled major roles with regard to the executive, legislature and judiciary. In this context it is interesting to recall the public controversy unleashed by the government’s proposal to abolish the post. This virtually eclipsed the constitutional significance of the formal separation of the judiciary from the other branches of governance.

In theory at least much of the criticism directed at the government was to do with the suddenness of the announcement which gave the impression of being unplanned and a by-product of a government reshuffle. Nonetheless, second and third thoughts did not apparently result in any lessening of the criticism. Ultimately the government gave way so that there is now a post with the cumbersome title of Secretary of State for Constitutional Affairs and Lord Chancellor. In fact in the latter capacity the post holder has lost most of the traditional powers including that of presiding over the House of Lords. The other public controversy concerned a new building for the Supreme Court: its availability will determine the date for implementation of the reform.

Of the various facets of the Labour government’s modernization programme considered in this book, the establishment of the Supreme Court is the most complete reform (or will be when it takes effect). From a federal perspective it is also amongst the most satisfying. In practice the previous system did offer some separation of powers, but this was obfuscated by the very terminology, House of Lords. It goes without saying that those in the legal profession and within the Westminster/Whitehall nexus were well aware of the different roles of the House in its judicial role and as part of the legislative/executive nexus. But that differentiation did not have the necessary transparency and public visibility. From the perspective of devolution there is a clear need for a transparently independent legal arbiter. The new Supreme Court is an obvious location. All told, a reform fully in accordance with the federal thinking!

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Extract from “Modernising British Government“, 2006