The Case For Constitutional Reform Is Less Than Clear

Reform of the House of Lords is back on the agenda, but the arguments in favour of change might not be as compelling as they are made out to be.


The Coalition is committed to reform of the House of Lords. So is the Labour opposition (though at the moment perhaps more in theory than in practice). And this is hardly a new idea - the same discussions have been going on for years, decades. Clearly, they say, the House of Lords should be reformed with a democratically elected membership - but is the case for change that clear? I'm not convinced.

In principle, the argument in favour of change is clear enough and easy to understand. In a constitutional democracy, the people ought to elect their representatives who make the law - of the people, by the people, for the people, and all that. Yes, fine. And given that, having one of the two Houses of Parliament made up of appointed 'worthies', entirely unchosen by and unaccountable to the people at elections, is obviously problematic. Much better, you might say, to remove all of those unelected, unaccountable people and replace them with elected members who will represent the people better.

While we're at it, we can slim down the size of the Upper House a little. After all, the US Senate manages (I use that term loosely) with 100 Senators - surely the UK does not need 800 Lords. Putting it at, say, 450 would seem to suffice (though this number appears to have been chosen fairly arbitrarily).

So there we have it. Democracy is the answer. We'll use some sort of proportional representation to try to mix up the membership a little to try to avoid cloning the Commons. We'll elect members for 15 years to give them time to get things done, and we'll make their terms non-renewable to stop them trying to pander to the electorate too much, and to make them less susceptible to the power of the party Whips. (One might think that these were problems in the House of Commons too, but no one seems keen on giving up the power of the Whips there, and pandering to the electorate is either an endemic problem or democracy in action, depending on how you look at it...) But obviously we don't want to lose all expertise at once, so we'll make three 'waves' of intake, electing a third of the House every five years. Sorted.

Except, I'm not convinced. It's true that if we were starting from scratch, I wouldn't devise the system that we have now; but I'm not yet convinced either that it isn't working, or that the proposed new system will deliver any meaningful improvement. At the very least, I think that The Guardian was quite wrong to imply that the only reason that MPs might oppose Lords reform was that 'many of them hope eventually to see out their days there at the taxpayers' expense'. Come off it. I suppose it might be true of a handful, but there are legitimate and powerful reasons to wonder whether reform is a good idea, and it's pretty low to suggest that those who make those arguments are only in it to line their own pockets. Moreover, if that's what we think of our elected representatives, it seems like a good argument for not electing 450 more who are even less accountable than the 650 we have in the Commons already.

So what are the arguments the other way? I think that they come in two main categories. First, there's the "if it ain't broke" argument (though I'm certainly not saying there's no room for improvement - there is); and second, there's the question of what the alternative will look like.

If it ain't broke...

This argument breaks down into a number of different strands, which I address in no particular order. First, it's worth asking about the numbers. There has long been concern about the ever-increasing membership of the House of Lords, from 662 in 2000 to 792 in 2011. However, while this increase is probably rightly seen as a problem, it is disingenuous for Cameron to complain about it - in his first year as Prime Minister, he appointed 117 new Peers. That's the same number as Blair and Brown appointed between them from 2005 to 2010. (All figures taken from this 2011 UCL report.)

So yes, we could and should reduce the size of the House of Lords, but let's not kid ourselves that its present size is an inherent problem of the system that we currently have - there is choice about the matter, and it would be easy to stop appointing new Peers for a while, as the UCL report recommended. We could even have a cull of current members, based on attendance rates, number of speeches made and number of votes cast over the last 12 months, say.

Then we might ask what the function of the Upper House is. It is said, and no one seems to want to change this, that the function of the Lords is to review and revise legislation introduced by the Commons. The House of Lords is not there to pursue its own legislative agenda, nor (if push comes to shove) to stop the Commons from achieving its legislative aims - only to steer, to guide, to polish. Given that aim, what characteristics would one want from its membership? The short answer would seem to be: expertise and experience in a wide variety of areas of life so that whatever the issue in question there are people there well equipped to comment insightfully on it.

The thing is, it's hard to say that most members of the House of Lords as presently constructed do not offer this. The membership of the Lords includes current and former doctors, lawyers, teachers, business people, athletes, financiers, civil servants, Commons MPs (too many, probably, but having some is a real advantage), scientists, academics, charity workers... Just listen to the debates that take place in the House of Lords, and then compare with those in the House of Commons, and decide for yourself which you think are better informed, based on better information, engaging more productively with the issues. For my money, it's the Lords almost any day of the week.

That's not to say that there are no problems. Clearly, the Prime Minister should not be the person to appoint new Peers, regardless of the way in which he or she comes to make the selection. Clearly, there is no justification for having fluctuating numbers of Peers depending on the whim of any one individual to make more or fewer appointments. But equally clearly, these problems could be overcome by fixing the number of Peers and then setting up an independent commission of some kind to oversee appointments.

That commission could also review the performance of Peers once appointed - not in terms of the substance of what they do, but in terms of whether they show up for reasonable number of debates, make speeches when they do attend, and vote. After all, being a member of the House of Lords is a public appointment, and it is wholly reasonable for the public to have some control over whether its appointees are working reasonably hard in their roles.

The most important thing about the House of Lords at the moment is that it is really not controlled by the political parties to anything like the extent that the House of Commons is. This week has seen a rare exercise of parliamentary authority over the political parties in the Commons, with a major rebellion on a whipped vote and the obvious threat of a larger rebellion on a vote that never happened. That is the exception. In general, MPs in the Commons do as they are told by their party Whips.

The House of Lords isn't like that. Yes, there are party allegiances, and yes Peers who are members of parties do tend to vote with their parties. But they don't always, and there are no real consequences for them if they don't. The worst that can happen is that they can be expelled from the party - but since 177 members of the Lords are Crossbenchers (of no party) anyway, that would hardly be a major punishment. It certainly doesn't carry the same consequences of having the Whip withdrawn in the Commons, where de-selection and a lost seat at the next election would be almost a foregone conclusion.

Finally, some point out that there is no danger of any 'clash' between the Commons and the Lords, because in the event of disagreement the elected Commons can always get its way over the unelected Lords. The Lords, recognising their lack of democratic legitimacy, give way to the Commons, thus allowing a clear line of authority and avoiding legislative deadlock. While there are times when one rather wishes that the Lords could stop some Commons Bills from becoming law, this clear system does have advantages and stops undue blockage of the legislative programme of the elected House.

An elected House of Lords

Could all of these benefits be retained in the elected House of Lords? Some say so. The reason that they will have 15-year non-renewable terms is to make each member more independent. Each will have time to establish him or herself but, since there is no possibility of re-election anyway, there is no particular incentive to follow the party line, and no need to worry that any one decision will be held against him or her by the electorate in a few short years.

Yes... But then, if we're not concerned about being able to hold our lawmakers to account in some way, then really the only thing that we're talking about is how to select the unaccountable members of the Upper House anyway. And if selection is really the only question, then I'm doubtful whether election is going to be better than appointment on any measure other than ticking the 'democratic theory' box.

However, for me, that box alone isn't worth terribly much. Democracy might be a good idea, but in practice our 'democratic system' is so flawed that its merits are rather diluted. The power of the political parties to pre-select our representatives for us is astounding and terrifying. Local party groups select their candidates in idiosyncratic and unaccountable ways, or central party groups impose candidates on local groups. Either way, it's very much an in-club: those who are in favour can be assured a favourable seat to contest, while those less willing to toe the current party line can fend for themselves. (Very occasionally, such people beat the party machine, such as Ken Livingstone's first London Mayoral victory as an independent after Labour chose not to make him its candidate - this is really the rare exception.)

If this is true of our current MPs, think how much more true it will be of the new House of Lords. The plan, apparently, is to elect them using proportional representation based on party lists. Yes, they will be 'open lists', so people can put the candidates on the list in their own order (rather than the party's order), but it's still a party list. You'll have to be in favour with the list-makers to stand any chance of being elected under this system. Given the current dissatisfaction and disengagement with politics in Britain, it seems that lots of people do not find any of the parties terribly reflective of their own views. Why should we think that an Upper House made up entirely of party hacks is going to improve matters?

It's true that there will be nothing in principle to stop us electing the same range of experienced and skilled people to the Upper House as we have there now - but in practice, I just don't see it. Who'd select and then elect a retired judge, an immigrant paediatrician, a farming expert, a film-maker...? (These are just random examples.) Maybe it would happen, but I find it hard to imagine. More likely, the list of choices will be populated with second-rate party hacks. Since the Commons will, we are told, retain its dominance over the Upper House, it is hard to see that anyone who seriously wants to run for office and has the charisma to win would choose to put themselves on a party list for the Upper House, rather than entering a constituency contest for a seat in the Commons.

On the subject of the dominance of the Commons, though, it's hard to see why that would continue to be the case. The only argument for it at the moment is that members of the House of Commons are elected and members of the House of Lords are not, but that would no longer be true. Nor would mere numbers be enough. A slim victory in the Commons (say, 301 to 299 if it is reduced to 600 members) could be 'outweighed' by a strong defeat in the Upper House (say, 310 to 140). Why should those 310 accept that the 301 in the Lower House should take precedence?

Conclusions

So anyway, I don't know. My gut instincts are all in favour of reform, but in practice I think that the House of Lords is currently doing a rather better job than the House of Commons, and any reforms are likely to substantially weaken its ability to hold the Commons to account. At the very least, though, this is an issue that needs proper debate, and the Labour party was quite right to oppose the government's timetabling motion that would have restricted debate on this question to only 10 days. 10 days?! To discuss the complete restructuring of our parliamentary system? Please.

Oh, and once we've had a proper debate about it in Parliament, could we maybe had a referendum? When all three main parties have 'Lords reform' in their manifestos, it is not meaningful to say that the electorate has 'chosen' that option - there was no alternative! I suspect, despite all that I've said here, that the majority of people would probably vote for change, but it seems important enough that we should probably find out for sure.

Britain and the EU - A Pointless Debate

The British Prime Minister, David Cameron, declared in the Sunday Telegraph this week that we need to be 'absolutely clear about what we really want, what we now have and the best way of getting what is best for Britain' regarding our relationship with the European Union. By nightfall, the predictable fallout from this newspaper article was in full flow. Euro-sceptic Conservative backbench MPs were saying that it didn't go far enough; pro-Europeans were saying that it was a distraction when the Euro crisis was still in full swing.

In practical terms, this debate is simply pointless. While it is true that there is, since the Lisbon Treaty in 2009, technically a mechanism in place to allow a Member State to leave the EU, in practical terms that isn't an option. The economic and political consequences of even attempting to do so would be extraordinary.

Britain's trade relations within the EU are central to British economic wellbeing (as evidenced by the current effects of the Euro crisis on the British economy, at least in the government's explanation of our own lacklustre economic performance). The unpredictable consequences for the British economy -- unpredictable, but inevitably negative in the short to medium term -- would likely cause prolonged chaos in the international financial markets, both for the UK and everyone else. The Pound, currently seen as a relative safe haven for international investors in a time of global financial crisis, would plummet as investors fled. No amount of confident rhetoric from the government would convince the world's markets that a single nation could extricate itself from something as politically, legally and financially complex as the EU and do well in anything less than a decade.

Leaving the economic turmoil aside, the legal implications of an EU withdrawal are hard to overstate. Almost every aspect of domestic law is influenced by EU law to some extent. Some of those effects come directly from Brussels by virtue of EU Regulations which are part of our law in the same way as an Act of Parliament from Westminster. Others are indirect, affecting the ways in which domestic law is interpreted and understood because of the influence of EU law and the rulings of the Court of the European Union.

There would also be huge international legal consequences. Vast swathes of international law, both to do with Britain's relationship with other countries (and the EU itself, of course, which is not going to go away just because Britain leaves it) and to do with business and personal relationships involving an international element, are currently determined by EU law. To give just one example from my area of research, child maintenance and contact arrangements for families whose members move within the 27 EU countries are all governed by EU law in the guise of the Brussels II revised Regulation. Withdrawing from the EU would mean that that legal mechanism for allowing the enforcement of maintenance and contact arrangements would disappear.

And then there are the political consequences. When Britain joined the EU, along with Denmark and Ireland, in 1973, there were only 6 existing Member States, and even so the economic and political reasons for joining were compelling. Now, with 26 other Members and numerous candidate countries wanting to join, the political exclusion that would flow from a departure from the EU would be immense.

The idea that Britain would retain any meaningful influence in European politics in the wake of our departure from the EU is laughable, while our relations with countries beyond the EU would likely be weakened by our new-found international isolation. We would no longer benefit from the international might of the EU, negotiating on behalf of 27 countries, and would instead be struggling to make our lone voice heard on the international stage. The elevated view of Britain's importance in the international community held by Britons is, some will be surprised to find, not generally shared by people in other countries.

In short, regardless of whether you love the EU or hate it, the consequences of leaving now are so great that they would outweigh even the most optimistic benefits promised by the most optimistic Euro-sceptic for decades to come. Given that, there is no realistic prospect of Britain leaving the EU, and it weakens Britain's position internationally to have a Prime Minister pandering to the isolationist right wing of his party by even discussing the possibility.