Dafydd Wigley examines proposals to reform the Lords and says the UK is heading for a constitutional quagmire
The House of Lords Reform Bill which was flagged up in the Queen’s Speech last week could have far-reaching implications for Wales. The precise provisions of the Bill are awaited with interest – and much speculation. The Coalition Government’s commitment to legislate seems to have waned by the month, as both the Tories and the Liberal Democrats realise that they will face enormous challenges in getting such legislation to the statute book, Certainly, they will if the Bill resembles the original proposals published last year as a White Paper.
Since then, two alternative sets of proposals for reform of the Second Chamber have emerged at Westminster during April, 2012. The first was the Main Report of a joint Committee of both Houses, chaired by Welsh peer Ivor Richard; and the second an alternative minority report produced by that Joint Committee.
The original Draft Bill, contained in the 2011 White Paper, proposed a much smaller Second Chamber – reduced from the current 818 to some 300 members, of whom 240 would be elected and 60 members nominated by an independent commission. There would be a dozen English bishops – half the present number – and a handful of Ministers, appointed by the government, to speak for them in the reformed Upper House.
The Draft Bill proposed a Second Chamber elected by STV, to be phased in over three elections, simultaneous to elections for the Commons – in 2015, 2020 and 2025. Members would serve for one 15-year term, without being re-electable. This provision of not being accountable once elected, would seem to negate the democratic answerability that the reforms are meant to provide!
Wales would probably be one multi-member constituency, with four new members elected every 5 years, as currently happens with the European Parliament. By 2025 Wales would therefore have its full compliment of 12 elected members in the new Second Chamber.
The current 818 Members of the House of Lords is an inexact figure. Every month some die and some new peers may be appointed. Thirty-six don’t participate for various reasons. Of the active Members, 90 are hereditary peers, 667 are life peers, and 25 are bishops. The present party composition is: 235 Labour, 214 Conservative, 186 Crossbenchers, 90 Liberal-Democrats and 57 others, including bishops.
The Draft Reform Bill proposes that each party group would be scaled down by about a third at each of the three transitional elections, so that numbers would drop to about 650 in 2015, to 475 in 2020 and to 312 by 2025.
However, in their majority Report the Joint Committee chaired by Lord Richard recommended that the reformed Second Chamber should have 450 members with election by the STV system used in New South Wales. It proposed different transitional provisions. It agreed that non-elected members should be selected by a statutory independent commission. They also, notably, suggested that the proposed reforms should be subject to a referendum.
The Alternative Report, produced by a substantial minority of that Joint Committee, departed even further from the proposals of the Draft Bill. It recommended that there should be a Constitutional Convention to consider the whole issue – and that it should include representation from the National Assembly for Wales and from the Scottish Parliament. The Convention should consider the implication of devolution, and the possible independence of Scotland, on the role of a reformed Second Chamber. They also concluded that any reform proposals emanating from this Convention should be put to a referendum.
These two conflicting reports from the Joint Committee, both including referendum provisions, has undoubtedly caused the Government to exercise caution as they move forward with this reform which was an intrinsic part of the deal which underpinned the Coalition Government in 2010.
The Queen’s Speech, delivered on 9 May, contained the words: “A Bill will be brought forward to reform the composition of the House of Lords”. This form of words was interpreted as being “vague and non-committal”, without indicating any timescale for achieving the proposed reform and not even mentioning the key words of having a wholly or even partly elected chamber. Some commentators saw it as being “dead on arrival”.
So what, by now, are the prospects of any such change occurring?
Since all three UK parties had commitments to Lords Reform in their 2010 election manifesto, a whipped vote in the Commons should secure the Bill its third Reading, if the two coalition partners have the commitment to its enactment. It may well be, however, that the Government would have to concede a referendum in order to deliver the Bill through the Commons without acrimonious rebellion. If that were conceded, the Bill would get Commons approval.
By no stretch of the imagination can such endorsement be anticipated in Lords. Turkeys don’t vote for Christmas. There isn’t the slightest possibility of the Bill being passed by the House of Lords in this coming session of Parliament. The question therefore arises whether in 2013-14 the Coalition Government would use the Parliament Act to insist that the Commons has its way and that the Lords Reform Bill gets enacted.
Even if that happens it will be difficult for elections to a reformed Second Chamber to take place by the 2015 general election, as intended in the 2011 Draft Bill. If such a delay is accepted as inevitable, it may well suit the Liberal-Democrats to make a virtue of necessity, and themselves to concur with the proposal of the Alternative Report of the Joint Committee to establish a Convention to consider the whole subject. This would have an additional appeal to the Liberal-Democrats if it considered the role of the second Chamber as a quasi-federal chamber, reflecting the reality of devolved Britain – a dimension which has been close to the Liberal Party for a century or more.
The central weakness in the Draft Bill is its failure to address the new role for the Second Chamber. It states:
“Nothing in the provisions of this Act… affects the status of the House of Lords as one of the two Houses of Parliament, affects the primacy of the House of Commons, or otherwise affects the powers, rights, privileges and jurisdiction of either House of Parliament, or the conventions governing the relationship between the two Houses”.
This is facile. To pretend that an elected Second Chamber can carry in the same way as the unelected House of Lords over the last hundred years beggars belief. We saw in the last Parliamentary session how Lords amendments to the Welfare Reform Bill, the Legal Aid Bill and the Health and Social Care Bill, were thwarted by whipped votes in the Commons.
As a nominated chamber, the House of Lords has to yield to the primacy of the first chamber. A new Second Chamber with a directly-elected mandate would hardly submit so easily to the views of the Commons. I suspect that this will be used by some timid souls as an excuse to retreat from the principle of a directly elected second chamber, and to contemplate an indirectly elected chamber.
The composition of a Second Chamber elected by STV, would differ fundamentally from the political balance of the Commons, which is elected on a first-part-the-post basis. The Government would still be formed by the largest party in the Commons. However, that party would rarely have a majority in the reformed Second Chamber. The Government would only have a majority in both chambers if it were a coalition government. Even then there would be no certainty. Consequently, the UK would regularly see political deadlock, as was faced by President Obama last summer with his financial proposals.
The future role of the Second Chamber cannot be considered in isolation from other constitutional developments, as recognized by the Alternative Report of the Joint Committee. The Scotland Bill has just completed its parliamentary passage, giving the Scottish Parliament significant new taxation powers. The Silk Commission will consider this for Wales. Any responsible government should have taxation powers, so that electors can judge the Government’s priorities.
The Silk Commission will look at more than taxation. In its second phase, next year, it will consider new functions for the National Assembly. High on the list must be powers over police and prisons, and the judiciary in Wales, though further pressure from Scotland may augment this list.
Carwyn Jones has also suggested that Westminster’s Second Chamber might become a federal chamber for the UK with responsibility for defence, foreign affairs and broad economic policy. His suggestion arose in the context of Scotland securing independence. It was perhaps easier for him to postulate the idea for what is still a hypothetical situation. He is, however, aware of discussion at Westminster that if ‘devolution-max’ gained momentum – a model supported by former Tory Prime Minister John Major in a keynote speech last July – some envisage the Second Chamber as a UK quasi-federal chamber, a consideration which the Alternative Report took on board.
If maximum devolution also applied to Wales and Northern Ireland, this would leave the House of Commons as essentially a chamber for England. This would overcome the West Lothian question. Somewhat tongue in cheek I suspect, Carwyn Jones flagged up that there should be equality of representation from Wales, England and Northern Ireland (and Scotland, if it hasn’t seceded) within a federal chamber. Aeronautical pigs come to mind!
The UK is heading for a constitutional quagmire. The old saying is that ‘form follows function’. A federal Second Chamber must surely be an option if ‘devolution-max’ emerges from Scotland’s referendum debate.
If the UK has a future, creative thought must now be given to the powers devolved to Scotland, Wales and Northern Ireland – and indeed England. Such consideration may well change discussion about the Second Chamber. But if the English body politic isn’t prepared to contemplate this, it must accept partial responsibility for the approaching break-up of the United Kingdom.