The House of Lords Reform Bill, Scottish referendum and the federal factor

We currently face the prospect of an Act of Parliament coming into force within a few months that will change the composition of the House of Lords, introducing a badly flawed party-based electoral system for most of its members, and taking no account of the constitutional implications for the UK parliament of the referendum on independence for Scotland due to take place in barely two years’ time.

The government’s Bill which proposes this major but still inadequate change is apparently to be hustled through with virtually no serious public consultation, no consideration of the vital role of a federal parliament’s second chamber in safeguarding the interests of the smaller of the four nations of the UK, and no provision for the further changes bound to be needed in the light of the outcome of the Scottish independence referendum without unravelling the entire “reform” now to be imposed.

And there is no provision for a self-evidently essential referendum on what, if enacted, would constitute a historic constitutional amendment.

Last week’s Guardian (5 July 2012) published a letter from me pointing out the sheer folly of introducing a radical reform of the House of Lords when the whole constitutional future of the UK will be affected one way or another by the still unpredictable result of the Scottish referendum. My Guardian letter necessarily omitted a number of other criticisms of the Bill, including the bloated size of the proposed new chamber (450 members! — the US with five times our population gets by with 100); electing its members for 15-year terms, thus removing accountability and incentive to effort; and the weird, inexplicable proposal to keep most of the (only Church of England) bishops. Democratic election of half our legislature is obviously long overdue, but why only 80% of them? Why keep 20% for party patronage to reward loyal old hacks, or for “experts” whose expertise can easily be utilised ad hoc without making them members of our parliament?

But above all the timing of the government’s Bill is patently absurd. It takes no account of the constitutional implications of the Scottish referendum on independence or devo max in autumn 2014, whose result may well set the UK irrevocably on the path to a full federation of its four nations. It doesn’t even recognise that we are already halfway down that path. Both a federation and our present semi-federation demand a quite different kind of second chamber from either the current House of Lords or a new version of it in which election of some of the membership is merely substituted for appointment, as envisaged by the government. We already need a second chamber on the lines of the United States and Australian Senates, and that need will become even more obvious if Scotland votes in two years’ time for full internal self-government within the UK, the likeliest outcome according to the polls. Alternatively, should Scotland secede from the United Kingdom, we shall be in a whole new constitutional ball-game, to which half-baked reforms to the House of Lords made now will be almost wholly irrelevant.

Instead of rushing into a major constitutional change without proper preparation or consultation, we should be spending the time between now and the Scottish referendum on proper research, including a study of the second chambers in comparable federal democracies, and an analysis of their implications for the UK; consulting with the leaders and parties of the three devolved nations and England about how their interests can best be protected and promoted in a new second chamber; only then publishing a new green or white paper setting out options for public discussion; and a referendum to establish which of the options enjoys the greatest popular support. A first step might be a Royal Commission, a constitutional convention or a Speaker’s Conference to map out the various steps leading to a properly considered reform which takes account of the radical constitutional changes on which we embarked with devolution, deferring final decisions until we know the result of the Scottish referendum. The present mad rush, dictated purely by the internal politics of the coalition and the need to pacify the LibDems with a compensatory lollipop, is unseemly and likely to be self-defeating.

Britain has traditionally been governed as a grossly over-centralised unitary state. Scottish resentment of an overwhelmingly English government and Parliament constantly meddling in Scotland’s internal affairs has led to an increasingly popular independence movement to which partial devolution was the imaginative and constructive response of Scottish leaders of all political colours and of the then Labour government at Westminster. Partial devolution to Scotland, Wales and Northern Ireland has led to widespread demand for the grant of further devolved powers to all three. In Scotland, this has come to be called ‘devo max’, or full internal self-government, as a constructive alternative to full independence, currently enjoying greater support than independence. Full internal self-government for Scotland, if chosen by the Scottish people in 2014, will prompt demands for the same status in Wales and Northern Ireland, and (more controversially) for devolution and full internal self-government for England, necessarily with its own parliament and government. The UK has already evolved into a semi-federation since devolution but that process has been temporarily interrupted, leaving countless anomalies crying out for resolution. Its logical destination is manifestly full federation for the whole UK. It is impossible to predict now what kind of federal system we shall want or need in advance of the Scottish referendum. If Scotland votes for full independence, the rest of the UK will need a different kind of constitution from the four-nation federation that will be appropriate if Scotland becomes fully self-governing within the UK. Now cannot be the right time to introduce important changes to the way we appoint or elect members of the House of Lords.

Part of the difficulty in creating a durable and democratic federal UK parliament arises from the widespread ignorance in Britain of basic federal principles, aggravated by general unawareness that we are already more than halfway into a federal constitution. Hence the gales of consternation and protest over the suggestion here and elsewhere that a federal or semi-federal UK needs a federal second chamber (replacing the House of Lords) on the lines of the United States and Australian Federal Senates, with equal numbers of senators elected from each of the constituent units of each federation. This is an essential safeguard for the smaller federal units against domination in federal affairs by much larger units, such as California, Texas, New South Wales, Victoria – and above all England. The democratic principle of representation in rough proportion to population size is protected in the other federal legislative chamber (House of Representatives, House of Commons) where in the Australian and British systems real power resides, both functionally and because that is where governments are formed and held to account. Difficulty in grasping these basic principles of federalism is reflected in well-meaning suggestions in the press and elsewhere for turning the [federal] House of Lords into an English [lower tier] Parliament, confusing the two levels which are at the heart of a federal system: and in the notion that introducing the elective principle into the second chamber would justify re-naming it “the Senate”, when it would still have none of the distinguishing features of that essentially federal institution.

By all means let us rid ourselves of the present indefensible all-appointed House of Lords, but let’s make sure that we put in its place something which reflects the needs of a partially devolved, semi-federal Britain, and which will not be made obsolete by unpredictable events in Scotland in barely two years’ time.