The Real Problem with Constitutional Reform

Despite being a Labour MP, House of Commons Speaker Sir Lindsay Hoyle is opposed to Labour’s plan to replace the House of Lords with an elected chamber. His view is that it would undermine the authority of the House of Commons. This has always been the problem with attempts to reform the Upper House. Change it into something democratic and accountable, and you are bound to ask why it doesn’t have more power. Leave it as a Ruritanian collection of robed elders, and you can defend putting limits on what it can do. For Hoyle it has a part in ‘tidying up bills.’ Like the cleaners, it plays a useful role that should not be criticised.

This will not do, but Labour’s plans for reform (so far lacking detail) may not do either. The trouble is their view of devolution, which has been focused on giving power away rather than sharing it. Yes, giving power away may be necessary to avoid too much centralisation. But often the most important thing is to allow authorities outside Westminster to participate in joint decision-making.

Powers repatriated to the UK after Brexit, for instance, were seized by Westminster and measures like the Internal Market Bill forced through against the wishes of the devolved authorities. The government argued with reason that there had to be a single UK trade policy. However, it never for a moment thought that the best way of arriving at a single trade policy was to institute joint working on the part of the four nations to arrive at a common position.

I’m not suggesting it was wrong to devolve powers to Scotland and Wales. I’m suggesting that on certain issues what is needed is for the nations and regions to be given a seat at the top table where they can hammer out solutions together, even if it means agreeing that a proposal from England could be blocked by the others. Whatever was jointly agreed would then become law and would be binding upon all the members of the UK. In other words, it would be similar to the way things work inside the European Union’s Council of Ministers.

Instead, everything is based on a hand-out to the Scots and Welsh who can then go and ‘make their own mess’ if they want to. And Starmer’s adoption of the Brexiteers’ ‘take back control’ slogan looks all too much like the same approach. UK governments are prepared to give power away but cannot handle the idea of sharing it, rather like the sort of passive-aggressive introvert who is willing to delegate but baulks at teamwork.

Both Left and Right have bought into a view of the sovereignty of the Westminster parliament that excludes the sharing of power with any other parliament, just as it excludes real accountability to any court. We can understand why Tories might be opposed to this. But why Labour? Here the position is more complex. Part of the Left is won over by the powerful romantic appeal of an institution that fought against monarch, Lords, judges and the ‘upper class’ to make the people ‘masters now’ (as Labour famously had it after their surprise victory in 1945). The idea that Parliament itself might come to be a barrier to the sovereignty of the people is hard for them to accept, even under an electoral system where as little as 35% of the popular vote can give a party an absolute majority in the House of Commons. But that is exactly what could happen.

If a party with extreme views wins power, there is nothing to stop it enacting whatever it likes. There will be no court with the power to disapply legislation that might be passed by that body. Some people may say that this prevents the courts ‘interfering’ in the political process. But ‘interference’ is a loaded description. Do politicians want a system where the courts always agree with the decisions of elected representatives? Is Russia a good model for the future of democracy in the UK?

The present Labour proposals talk of finding a procedure that would ‘sustain the primacy of the House of Commons.’ But any proposals starting from that premise simply won’t work. The Liberal Democrats, with their century-old commitment to Home Rule and later their sustained support for the European Union, should argue for a separation of powers in which the Supreme Court and the revised House of Lords have real authority, a system similar to that of the European Union but also to the United States of America. In other words, they have an opportunity to produce a distinctive policy on constitutional reform in line with their own traditions. Worth taking?

Mark Corner’s A Tale of Two Unions: The British Union and The European Union after Brexit will be published later in 2023 by Bielefeld University Press

* Mark Corner is a UK national, who teaches economic history and philosophy at the University of Leuven, is married to a Czech EU official and lives in Brussels. He has just published A Tale of Two Unions suggesting that Brexit may damage the British Union unless the UK becomes more positive about the way the European Union is structured.

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  • David Warren 26th Jan '23 - 10:14am

    Really good article from Mark. I have long felt that the Australians have it right with a Senate elected by STV which any government has to go through to get its legislation passed.

    Their Senate rarely has a majority for any single party so a consensus has to be achieved. We need something similar here in the UK.

  • Very helpful article from Mark. There is still an element in Labour culture and tradition that really likes clear hierarchies. Labour democratic and open debate can be undermined by an expectation of a “winner takes all” outcome which at its worst was reflected in the post-war “We are the masters now” boast,

  • George Thomas 26th Jan '23 - 12:31pm

    Current model of devolution doesn’t make much sense. During pandemic times, when Celtic Nations had different rules, we saw drivers from England being surprised there were differences and explaining they thought Celtic Nations were owned by what happened in Westminster. More recently, we’ve seen Welsh Tories in the Senedd and Welsh Tories in Westminster disagree about whether HS2 money should be devolved or whether improving rail lines only in England is sufficient benefit to Wales and therefore no devolution necessary. We’ve also seen Welsh representation shrink in Westminster and presumably the HS2 issue (investing in infrastructure in England only as an England and Wales project) will see population shift and further shrinking of Welsh voices in Westminster in the future.

    Something needs to be done. But we have likes of Lindsay Hoyle who are more interested in pomp and ceremony of old traditions than investing in changes needed to protect the future.

    Thank goodness we’ve wasted so much time on Brexit and so much money on Tory sleaze and Labour infighting instead of focusing on issues that are far more significant.

  • Tristan Ward 26th Jan '23 - 4:35pm

    Do we really want a second elected chamber (whether elected by PR or otherwise)?

    Why we might not:

    1 The House of Commons is dominated by career politicians (often (?usually)) uninformed about much outside politics with a short term view focus on getting reelected/pleasing party mangers. Just look at the Commons: – do we really want another chamber like it?

    2 A second chamber claiming the legitimacy of being elected would be emboldened to resist legislation from the Commons when controlled by political opponents of those controlling the Commons – possible result gridlock – see the USA.

    3 Conversely, where the second chamber is in political harmony with those controlling the Commons, bad legislation is more likely to go through on the nod.

    4 We need to figure out a way of reforming the Lords so that the current advantages of the Lords – a measure of political independence of Party and expertise is maintained. It is also desirable (in my opinion) to make “Guardianship of the (written) Constitution” the primary function of the reformed chamber.

  • Mel Borthwaite 26th Jan '23 - 6:02pm

    @George Thomas
    I don’t understand the argument that because drivers from England were unaware that Scotland and Wales had different rules during the pandemic, that somehow ‘the current model of devolution doesn’t make much sense’. That is a very dangerous line of reasoning. Scotland only agreed to the Treaty of Union with England on condition that the separate Scottish legal system would continue…are we now arguing that ignorance of some drivers from England is a reason to reconsider this foundational pillar of the UK constitution? The solution is surely to ensure that ‘ignorant drivers’ are made aware that different countries often have different laws and they should check the laws at the other side of any border before driving across.

  • William Wallace 27th Jan '23 - 2:17pm

    We need a second chamber partly because the Commons is tightly controlled by the whips of the majority party, which means that half-thought-through ministerial proposals and badly-drafted bills are nodded through unchanged. The Lords looks at the detail, and the coherence, of legislation, and forces ministers to justify their contents. There’s a strong argument also for embedding regional and national representation in the Westminster policy process. That’s the case for a reformed second chamber.

  • The problem is that both of our duopoly parties are committed to FPTP which fundamentally is not a democratic electoral system.

    Any electoral system that allows a party with 35% of the popular vote to have an absolute majority in Parliament to do whatever they like is not democratic, as it suppresses the views of much of the demos (ie the people). Anyone who believes in it or supports a system that does that is at heart not a democrat.

    Both of our duopoly parties are obsessed with being in office – not in how they will exercise it when then have it. Neither of them is interested in a fairer Britain since that would mean starting with reforming the electoral system.

    Neither party can claim to want a fairer Britain while refusing to give up the unfair and undemocratic privileges they benefit from under the current (electoral) system.

  • Peter Hirst 28th Jan '23 - 3:49pm

    The solution is for both chambers to be reformed simultaneously. Then we can have an elected HOL and a HOC that retains its primacy. Bringing PR to the latter would mean that it would remain the primary legislature. Its improved legitimacy would allow the HOL to be elected and perform its scrutiny and other roles with more vigor.

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