BICAMERALISM & REPRESENTATIVE DEMOCRACY: AN INTERNATIONAL PERSPECTIVE - PART TWO
by Rafe Heydel-Mankoo
Typically, given their more reflective and sober nature and their representation of established long-term societal interests, one of the critical roles of an upper house has been to guard the constitution against a potentially impulsive and populist lower house. Through their written constitutions, upper houses and supreme courts, the majority of the world’s bicameral states have entrenched safeguards to protect the constitution and
fundamental human rights. The French Senate is amongst those upper houses that are empowered to veto constitutional legislation (but not ordinary legislation). A number of advanced democracies require a 2/3 or 3/5 majority vote in both chambers in order to enact a constitutional amendment. Some states also require a national referendum before effecting constitutional change – and federal countries can additionally require the approval of a certain number of state legislatures within the federation.
The United Kingdom is the only advanced democracy in which constitutional reform legislation and ordinary legislation are enacted in precisely the same manner. The safeguards that exist in other countries are not present here. From the start of the 21st century, the United Kingdom has undergone profound constitutional change, transforming it into a quasi-federal state with a constitution considerably more codified than previously. The threat of terrorism and extremism has also occasionally led to attempts to restrict certain long-established civil rights and liberties. Parliamentary sovereignty, the executive dominance of the lower house, political distrust of judicial review and the absence of a written constitution can potentially enable a strong-minded majority government to wreak constitutional havoc. The House of Lords is not a powerless constitutional guardian – and yet, ultimately, when faced with dangerously ill-considered legislation that it opposes, it can do little more than voice its disapproval and urge the Commons to reconsider.
Britain can no longer remain the global democratic anomaly. Given the complexity of Britain’s fast evolving and increasingly codified constitutional make-up, the reform of the House of Lords provides the ideal opportunity to strengthen its role as the guardian of the constitution and civil liberties.
Consequently, in addition to its existing veto over attempts to extend the life of Parliament, any reformed House of Lords should have a veto over constitutional reform legislation as well as legislation affecting fundamental human rights (habeas corpus, etc.) – convention should establish the veto as a reserve power to be used only in the most exceptional of circumstances.
Whilst considering its position, the House of Lords should have the ability to refer issues relating to the constitution and/or human rights to the law lords at the new Supreme Court. Many upper houses, including those in Germany, Poland and Spain, possess this power. Should the House of Lords choose to exercise its veto, and should the House of Commons refuse to back down, political deadlock would ensue and a mechanism would need to be established to reach a solution or compromise. Bicameral states around the world utilise a number of different mechanisms to resolve deadlock between the houses. These include double dissolution, lower house 2/3 majority override of the upper house, suspensory veto, joint sittings and joint committees. To preserve the principle of the supremacy of the House of Commons, a 2/3 majority Commons vote would be a suitable means of breaking the deadlock. Another possibility for resolution might be the creation of a joint committee. Outside of the heated atmosphere of the parliamentary chambers it is likely that more meaningful and productive negotiations can be entered into between both Houses until, hopefully, a satisfactory compromise can be reached.
Reform of the House of Lords affords the perfect opportunity to position the upper house as a powerful guardian of the constitution and democracy, human rights and the rule of law. This role is of such profound importance that it should merit as much attention as the process by which members are selected to sit in the chamber. As the global evidence suggests, bicameralism adds immense value to the legislative process and to
national governance. Two chambers representing different polities create legislation and public policy that is more democratic and more reflective of public concerns. The various appointments systems have helped to create upper houses that, to varying degrees, can represent society, or provide a voice for specific elements within society, in ways that would be virtually impossible in wholly elected chambers. Elections do not favour minorities.
This is no less true in the United Kingdom – and it is very likely that a wholly or mainly elected House of Lords would be considerably more impenetrable to minority groups than it is currently. Elections would certainly deprive Parliament of many of its most learned and respected members. The majority of the eminent scholars, doctors, scientists, social workers, educators, economists, businessmen, musicians and writers who have been elevated to the Lords – transforming the institution into a pantheon of British excellence – would be unlikely to stand for election. This priceless pool of talent and experience, drawn from so many sectors of society and so critically important to the work of the upper house, would be lost. To maintain a diverse and representative chamber in a reformed House of Lords it is clear that a significant appointed element must be retained.
Global analysis also reveals the remarkable vulnerability of our constitution and fundamental rights compared with all other advanced democracies. No attempt at reforming the House of Lords should fail to consider the opportunity of strengthening its role as a guardian of the constitution and the rule of law.
The House of Lords clearly performs a democratic function and fills a democratic void that an elected House of Commons cannot. There can be little doubt that, if successful, the proposal to institute elections to “democratise” the House of Lords and make it more “representative” would transform it into a much more homogenous and far less representative institution than it is today. The quality of governance would decline and parliamentary democracy would be weakened. In the history of constitutional reform, there are few proposals whose results would be more ironic.
This essay is taken from ResPublica's landmark report "Our House: Reflections on Representation and Reform in the House of Lords", (available for download at this LINK) which was launched in the House of Lords on 29 February 2012. This important publication, produced in response to the Government's Draft Bill on the Reform of the House of Lords, opposes the Government's desire for a "wholly or mainly elected" upper house and, instead, argues for a radical alternative. Other contributors include the Minister for Political and Constitutional Reform, Mark Harper MP, Lord Low of Dalston, Lord Wei of Shoreditch, Sir Stephen Bubb, The Bishop of Leicester (Convenor of the Lords Spiritual), the political philosopher Prof. Roger Scruton, Lord Adebowale and Phillip Blond, Director of ResPublica.
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