Book Reviews: Once Upon a Time, Trade Unions TBA
‘Mankind is bicameral as the sea is salt,’ declared John Vincent in a review of these same two works in the London Review of Books. Well, perhaps; but the form that bicameralism takes is open to debate. In Britain the future of the second chamber was left as unfinished business by the 1911 Parliament Act, and the unreformed House of Lords survived for almost a century through lack of agreement over a replacement and the absence of the political will to enact reform. Until recently these two elements were seen as essentially linked. Action could be taken only if it was backed by bipartisan agreement, and this would only happen if there was at least a partial consensus on the outcome of reform. So the last major attempt at reform, the Parliament (No. 2) Bill of 1968, was abandoned by the Wilson government in 1969 in the face of opposition in the House of Commons. After that the issue was dead for a generation and other matter rose to the top of the constitutional agenda—devolution to Scotland and Wales, freedom of information and electoral reform.
The government elected in 1997 had a broad commitment to constitutional change, including the abolition of the hereditary element in the Lords. However, this pledge was not accompanied by a blueprint for a reformed chamber. Since a major factor in the 1968–9 failure was a lack of agreement on the outcome of reform, the government solution was to announce a first phase in which the hereditary peers would be reduced in number, followed by a second phase in which a new house would be put in its place—with the final removal of the hereditary element. The second phase would follow after further discussion and consultation.
So now we have a partially reformed interim house; and both these publications—the report from the Royal Commission chaired by Lord Wakeham and a study of second chambers in seven democracies from the Constitution Unit—are contributions to the debate on the form and functions of a revised chamber, on the second phase of reform.
The Wakeham Report, with its 132 recommendations, has not had an enthusiastic reception. This is in part because it makes no clear final recommendation, but mostly because it is seen as a fairly timid political ‘fix’. This is a little unfair. In the period between the establishment of the Royal Commission and the publication of its report, the general enthusiasm of the government for reform waned, and so the committee had little scope for radical proposals even if it had been so minded. The report also suffered in terms of style and intellectual coherence in comparison with the Jenkins Report on electoral reform. And, as Russell rightly points out, ‘the changes enacted by the 1997 Labour government ended—at last—the Conservative Party’s dominance of the upper house. That was clearly in the interest of the government. It is questionable whether further reform of the upper house will prove to be so.’
The government has tended to see each element in its programme of constitutional reform as discrete and self-contained; it may want to have joined-up government, but it certainly is not committed to joined-up constitutional reform. So the assumption that any change is to be minimal, with little or no consequent effect on other institutions, appears to underpin the Wakeham report. To take one obvious example, there is no proposal for a separate supreme court, thus leaving the position of the law lords unchanged.
While timid and uncertain in its conclusions, the report recognises the need for an elected element in a reformed chamber, while retaining a substantial appointed element. To make this more acceptable it suggests that prime ministerial patronage should be reduced by setting up an independent appointments commission. Similarly, while the report thinks that the name of the reformed chamber should be left ‘to evolve’, it wants to eliminate the link between the peerage and membership of the second chamber, so that a life peer could be a member of the revised house but members would not necessarily be life peers.
The Commission also recognised that a reformed house should be independent of the House of Commons. Party ties could be weakened by a longer term of membership; no one party should dominate; both elected and appointed members should serve the same term. The report rejects both functional representation and indirect election. The basis of representation should be different from that of the Commons, with elections on a regional basis by proportional representation, with renewal by thirds. But, paradoxically, there is no firm commitment to a fixed-term membership.
There is a recognition, too, that a revised second chamber could play a significant role in the legislative process, and Wakeham suggests several potentially significant areas of activity—pre-legislative scrutiny, a concern for human rights and European legislation, and a role as a constitutional ‘long stop’.
If the government accepts these broad principles, then perhaps the debate has been advanced. Unfortunately, these positive aspects are overshadowed by unanswered questions. The report makes no final recommendations about composition, suggesting instead three distinct models for the selection of regional members. However, in all three cases the Commission anticipates that appointed members will continue to form a majority. More problematically, while the remaining hereditaries would be phased out, and the new elected and appointed members would serve for a fixed term, those current life peers ‘who wish to take up the opportunity should be deemed to have been appointed to the reformed second chamber, for life’ (Recommendation 102). It is difficult to see how the retention of a large number of the existing life peers would help the reformed chamber to be ‘broadly representative of British society as a whole’ (Recommendation 62); and if the house is to enjoy the authority that the report suggests it should have (Recommendation 60) then the balance between elected and appointed members should be changed, with more elected members and fewer appointees.
Although the new chamber would be smaller than the previous House of Lords, it would still be relatively large in comparative terms—and would be dominated by appointed members. As Russell’s study suggests, appointed chambers are relatively weak and second chambers are usually smaller than their corresponding lower houses. Overall the transition between the existing partially reformed house and the final reformed chamber needs to be thought through in more detail. It is a relatively simple matter to phase in a new chamber in which elected members serve for a fixed term and are subject to rolling partial replacement.
But of course, to have a large elected element would alter the relationship between the Commons and the second chamber, and it is this issue, one around which the Wakeham Commission merely skirted, that has remained the central problem for reform since 1911. What is the role of a second chamber and what should be its relationship to the House of Commons? Most members of the Commission—and most MPs—have a ‘zero-sum’ view of legislative power: they assume that if you give a revised second chamber greater authority or a greater role in the legislative process then you necessarily do so at the expense of the House of Commons. So, rather than confront this issue, the report assumes that a revised chamber will operate in exactly the same way as did its predecessor, the House of Lords; it assumes that you can change the composition with everything else remaining unchanged.
While this is not necessarily the case, a change in the relationship between the two houses need not undermine the primacy of the House of Commons, though it could make life more complicated for a government. It is this, as much as constitutional niceties, which will decide the future character of a reformed second chamber. Recent experience with devolution has not been happy. Partly because every constitutional reform is carried out in isolation, some of the results appear to have come as an unwelcome surprise. If devolving power to Scotland and Wales has made relations between central and devolved administrations more complicated, they will wish to avoid similar problems with a reformed House of Lords.
Finally, as Russell’s useful study reminds us, many second chambers—the major exception being the United States—are seen as in need of reform. That usually is a long and protracted process, and when it occurs the hopes of reformers are rarely realised. All of this suggests that the relatively minimal Wakeham proposals may have some influence on the second phase of reform, although inaction is also a likely outcome. Increasingly the government will be preoccupied with different priorities, such as winning the next general election, and will be discouraged by the results of reform in other areas. The interim, partially reformed House of Lords may be with us for some time yet, with phase two of its reform postponed indefinitely.
