Two tricky constitutional questions may have the same answer: the ‘English question’ arising from devolution (which I discussed yesterday) and House of Lords reform.
I argued that the ‘English votes for English laws’ (EVEL) proposal would wreak constitutional havoc if applied to the Commons, but also acknowledged that there are grounds for recognising the legitimate concern here. My suggestion is that we apply a similar principle to a reformed upper house.
It’s overwhelmingly agreed that the Lords needs reform, and the likeliest grounds for consensus seem to be around a set-up in which some sort of majority is elected and the rest appointed, with the provision that it is only a revising chamber, without the power to indefinitely frustrate the will of the Commons. I’ll accept this.
Clearly party representatives must be present (I’d suggest 60–70% of the total); these should be elected, to avoid the grubby situation in which party leaders have powers of patronage (not to mention for simple reasons of democracy). But as the current House of Lords demonstrates, there are many independent people with experience and expertise in many professions and walks of life whose presence in a second chamber is greatly beneficial; these people are disinclined to join in electoral party politics. These members should be appointed by some sort of commission operating at a clear distance from the control of party leaders.
To promote greater resistance to populism and the whips, it would be worth giving members long terms to serve (although not life terms). Perhaps the elected members could be chosen by thirds at successive general elections; this would give typical terms of about 12 years. And thirds of the appointed group could take their places shortly after each election.
I propose that the elected members be elected proportionally on the basis of the current multi-member European parliamentary constituencies: Scotland, Wales, Northern Ireland and the nine English regions. The proportionality (as well as the independent appointees) should guarantee that no party will have a majority. And the regional basis for election is vital for the new chamber to be able to reflect the results of devolution – both the different degrees thereof currently in existence and any future regionally based changes.
When a bill applies to some areas but – because of devolution – not others, the members representing those other areas would not vote. As I said yesterday, the principle would be that a member may vote on a bill if and only if either (a) it directly applies to his/her constituency or (b) it covers a policy area that, for his/her constituency, is the business of the UK Parliament.
The appointed members – who are there purely for their own merits and who have no representative role or geographical base – would be able to vote on all matters.
We could call the new chamber the House of Union, based as it is on the nations and regions of the UK, both bringing them together and recognising their different positions in the union.
Because I’m applying the EVEL principle to a second, subordinate, revising chamber, it would not have the dire consequences that I described yesterday in relation to the Commons. A government with a UK majority would keep its majority in all policy areas, and the legislation/implementation conflict would not threaten the coherence of government. MPs in the Commons would all remain equal – the elected/appointed split in the House of Union means it would define different kinds of member from the outset, so incorporating a range of types of responsibility would not disturb a pre-existing equality.
It is true that the unaltered Commons would be supreme, able to overrule any amendments or defeats from English members of the House of Union, and so EVEL purists may be dissatisfied. But the truth is that even with the existing devolved administrations, Westminster retains supreme sovereignty. The Scottish Parliament may legislate all it likes, but it does so solely because the UK Parliament chose to devolve some of its own powers – and it could take them back, if so inclined. Final power over Scotland (and Wales, Northern Ireland and London) still lies in the Commons, even though it now lies dormant.
The power of the all-UK Commons over England will remain more direct – but then the ability of the English voice in the upper house to check that power will also be direct and immediate. If the House of Union rejected (with English votes) an England-only measure passed in the Commons (with help from Scottish and Welsh MPs), this would stand as a clear political warning to reconsider. If the Commons chose to disregard the will of the English as expressed by the upper house, then those English MPs responsible (most of any Commons majority would be English) could be held liable electorally.
EVEL purists may reply that this does not remove the anomaly that riles them, as the supreme Commons remains unchanged. But the risks of changing the Commons as they desire are too great. There is not going to be a perfect, rationally consistent formula to remove all the unfortunate quirks of our evolved constitution, which is an intricate web of compromises successively made between different interest groups, as well as between principles such as accountability and efficacy. My proposal (as well as democratising the upper house and removing patronage) intends to ease the concern in question by acknowledging the facts of devolution, but without giving rise to the serious problems that EVEL would create.