Mankind is bicameral as the sea is salt. In 1997 there were 58 bicameral parliaments. Within their respective countries, Nebraska and Queensland were the only states not to be bicameral; among nations, China, Sweden, New Zealand, Portugal and Denmark are the main exceptions. Bicameralism is rooted deep in history. It embodies two great, but unrelated, principles: aristocracy and federalism. Only more recently, and as an afterthought, has the notion of the need for a revising chamber been added as a fig-leaf.
It is not that second chambers do not revise; they do this in plenty. In the UK, House of Lords amendments normally run at 1500-2000 per annum. The French Sénat likewise produces about 2000 amendments a year. But they do not revise in the way the public thinks they do; their changes are not enforced on the Government by an assembly of wise critical minds, for (in the UK) about 95 per cent are Government amendments, hot from the minister’s office. The real revising chamber is the Civil Service, which uses the Upper House as a clerk might use Tippex. The ‘sober second thought’ which Sir John Macdonald, the first Canadian premier (and a notable inebriate) attributed to senates is largely the stuff of legend.
To see what lessons may be learned from abroad, Meg Russell has examined seven upper houses in modern democracies. Rather oddly, she omits without comment the most powerful upper house in the world, the United States Senate, but her seven examples still cover a wide range. The difficulty is to know how much in each case depends on the institutional model and how much on national character. Thus the German Bundesrat runs like clockwork – but is that because it is in Germany? The Irish Senate is rather pointless and mildly fishy, but then it is in Ireland. The Australian Senate resounds to love of a foul-mouthed scrap, as perhaps any Australian institution would. The Italian and Spanish Senates are afflicted by dolce far niente. The French Senate, with its rural bias, is Clochemerle writ large.
Whether we can learn much in practice from international comparisons may be doubted. The Bundesrat, for instance, may be the most attractive version, the only second chamber to enjoy general public support. It is not directly elected, but consists of delegations of ministers from each Land voting together en bloc rather than on party lines. Since it represents provincial governments, it has the standing and confidence to challenge the lower house and the Federal Government, yet (since it also represents the political parties) it does so with restraint and responsibility. How admirable, how truly German, and how impossible to emulate outside Germany, with its uniquely strong federalism.
Some very general lessons can be drawn about the size and composition of upper houses. Direct election is the most common method for choosing their members. Besides those countries using it, another 21 use indirect election of varying degrees of doubtfulness. Taking direct and indirect together, election of some kind is normal. It is the proposed UK system based mainly on selection by appointment that is untypical. Either most of the world is out of step, or the UK is especially unfitted for democracy.
We are also out of step, and markedly so, on the size of the upper house. The United States gets by with a very effective Senate of 100 members for a population of around 270 million. Yet our Blairite interim house has about 600 members and the fully reformed one proposed by Lord Wakeham would have 550 (with no statutory upper limit on its numbers). Only the Italian Senate with 326 would approach this. The worldwide norm is for the upper house to be much smaller than the lower – on average about 60 per cent of its size. Again, either all the world is out of step, or UK legislation needs uniquely large amounts of revision.
If there is a bee buzzing in the author’s head, it is that of regionalism. She wants to see a new rationale for the Upper House as a chamber of nations and regions. This involves dividing England into nine regions, each roughly equal to Scotland or Wales. If these are mere areas for electoral purposes (as in the Wakeham Report), that is harmless enough. If, on the contrary, regionalism is part of a less than benign assault on the unitary nation in the interests of a Brussels-inspired ‘Europe of the Regions’, not a few cries of alarm will be raised. The real question, as ever, is what Blair wants. He began at a cracking pace in 1999, by setting up Regional Development Agencies and non-elected Regional Chambers throughout England. Then all went very quiet, and what if anything happens next remains uncertain. Perhaps in this, as in other cases, yesterday’s bright idea will quietly fade; perhaps it remains an essential part of The Project. Only one thing is clear: the public has not been told.
Russell should be thanked for a valuable, laborious and exhaustive study carried out in a fair and honest spirit. As a mainstream if slightly naive ‘reformer’, she provides a thorough professional exercise which differs from the Wakeham Report mainly on the questions of the size of chamber and its role in upholding regionalism. Her shrewd political judgments make one wish she had given more space to political argument.
She points out that further reform is unlikely. No other democracy has reshaped its upper house save in times of national convulsion. The House of Lords Act 1999, which created the present interim House, did all that was in the interests of the Government. It was an obvious popularity-seeking measure, designed to make up for the lack of any real Labour programme. It offered Blair the juicy hope of a Peers v. People election, an excuse for a second landslide, and a chance to create the momentum for his European policy, despite the setback he had just received in the Welsh devolution referendum. The peers failed to give him an easy triumph, and any popularity won has long since been dissipated. As for the Tories, why they chose not to play the democratic card is far from clear. Anyway, further reform has little to offer the Government, and may well work against its interests. If Lords reform still has a function, it is to ensure that there will never be enough Parliamentary time for the foxhunting Bill. Promises for further action have been made in plenty, to be sure; but today’s solemn promise is tomorrow’s vague aspiration.
Canada, Russell concludes, has the worst kind of upper house of all: one wholly appointed. It has been considered a national disgrace for a century or more. Unfortunately, the proposals of the Wakeham Report come nearer to the Canadian model than to any other. The more we looked at overseas comparisons, says the Report, ‘the less we felt there were any useful lessons to be learned’: evidently. The Wakeham Commission, a group of smiling public men (only 4 women out of 12) in late middle age appointed by No. 10, having carefully considered all the evidence, come to the foreordained conclusion that for an upper house you really could not do better than to take smiling public men, in late middle age, appointed more or less by No. 10, with such trimmings as fashion and political correctness might require.
This is not to suggest they merely held a mirror up to themselves, though it is true of the Commission that all its membership would (and perhaps will) be eminently suitable appointed members of the upper house they propose. They did, however, work hard to lend dignity to their preferences. They sent 6000 consultation papers to 4500 individuals. They received 1734 pieces of written evidence, over 76 per cent from members of the general public. More than 46 per cent came from London and the South-East. The only other areas to show much interest were the South-West and the North-West. Of peers and former peers, 127 gave evidence. The unions, the professions, the media, business, health and education were backward in expressing views, while the Free Churches, the Catholics and local government were more conspicuous.
They organised 21 public hearings, attended by 1026 people. The meeting in the East Midlands attracted 26 people; that in Cardiff was cancelled for lack of interest. Over 58 per cent of those attending completed questionnaires on key issues. Despite this poor response from an unrepresentative sample, the results are printed as if constituting some guide to opinion. The Commission, which included a leading authority on polling, did not arrange for any reputable surveys of public opinion. We are not told why not. Had they done so, they might have met views more democratic than those embodied in their Report. Polls have shown support for an elected second chamber variously at about 50 per cent (1998) and 84 per cent (1999).
Lord Callaghan, Lady Thatcher, Sir Edward Heath, John Major and Cardinal Winning all met the Commissioners. So did the editors of the Times and the Guardian, Lord Habgood, Lord Howe, the Duke of Buccleuch (the only duke to surface), Professors Scruton and Bogdanor, as well as spokesmen for Ubley Parish Council, the East Midlands Regional Assembly, the Guild of Catholic Doctors, the Irish Peers Association, the Wales Assembly of Women, Water UK and Barnardo’s. All this is obviously by the by, but it gives a fascinating glimpse of the inexhaustible courtesies and illusions of participatory democracy which swathe the memo-writing classes – when all that matters from first to last is what Tony wants. We live under despotism tempered by character assassination, but it remains convenient to use Royal Commissions to create illusions of propriety.
Hence the constitutional issues are dealt with by omission, or perhaps by a timid desire to avoid any rows. James Madison, when designing the US Senate, said his aim was ‘to protect the people against their rulers, secondly, to protect the people against the transient impressions into which they themselves might be led.’ None of that here: no recognition that the interests of nation and rulers might diverge. Of course, if one asked each individual member of the Commission whether an upper house strong enough to halt the Poll Tax, or Eden’s policy over Suez, was desirable, they might concur; but sitting as a Blairite committee they cannot think the unthinkable of the upper house representing the nation against the entourage temporarily in control of the majority party.
In the name of political realism, the Report has produced one of the least democratic solutions available, only to find that its conclusions have been laid aside pending private talks between the parties. All its deference to power has got it nowhere. Even the most democratic part of the proposals, the regionally elected members, will not cause government a tremor, for the directly elected members will perhaps number only about one in six of a house of 550. Membership apart, Wakeham makes remarkably few proposals: a tweak here, a legalism there, a perk or two here. In this, the Report belongs, sensibly, to the ‘if it works, why fix it’ school. Inert in most respects, when it comes to membership it is hyperactive.
It stands or falls by its only two real proposals, that for an appointed house, and that for an Appointments Commission to do the appointing. Taking the latter first, superficially it appears squeaky clean. Of its eight members, three represent the main parties, one the cross-benchers, and four the independents, one of whom should be the chairman. These impeccable figures are currently being headhunted by Price Waterhouse; when found, there is hobnobbing between the parties, and the Leader of the House, Lady Jay, formally moves their appointment. Whether this will in fact produce the ‘totally independent’ Commission, or whether Lady Jay will crack the whip, nobody can tell in advance. And as for the headhunters, Price Waterhouse, what is one to make of the report that they were auditors to Geoffrey Robinson’s company, Transtec, whose accounts are currently being investigated? Patronage at one or two removes still remains patronage. Of the four independents, three are assigned to the Celtic fringe; Welsh and Scottish independents will no doubt broadly reflect the Celtic-Labour alliance. All is not quite what it seems; nobody can possibly tell in advance.
The Appointments Commission is a personnel manager’s nightmare. It has a large number of seats (550) to keep filled. It has few inducements to offer: it cannot offer a title. Members may not mind this, but their wives will. It cannot offer more than ‘a modest payment related to attendance’: what active member of the business or legal world would give up his time for that? All it can really do is offer, through hotel expenses and club facilities, a spasmodically high standard of living, to those with time on their hands.
If the perks are scanty, the duties are unappealing: the jobs may be hard to fill creditably. The lack of a gong really will make a difference. And yet the number of direct appointees, according to the three options suggested, would be large: 485, 463 or 355, omitting clerics and Law Lords for the moment. There is, however, an important exception to these considerations. Appointed members sit for 15 years but are eligible for reappointment – think what that means. Your hale and hearty stripling of 55 may enter on his term with a proud sense of independence, perhaps even inclined to scoff a little; but as 70 approaches, how will he not crawl to gain another 15 years of consequence and good hotels, of tea with friends and telling points as yet unmade. He will know, of course, that without strong backing from the party machine, he cannot entertain any hope of extension. This is unhealthy.
The Appointments Commission, when it exists, will have to follow certain proposed rules. The first is that it will have to ensure the party balance reflects the popular vote at the last election. But is this possible? Had the arrangements existed in 1997, it would not have been possible to reflect Labour success at the polls without somehow removing existing Tory members in bulk, or by increasing the total size of the chamber substantially. (There is provision for neither manoeuvre.) One gets the impression that the Report hopes the problem will not often arise, and that if it does, somebody will think of a way round it.
Of the rule requiring party balance, one can only say that it might on occasion be achieved; it could never be assured. But worse is to come. The Commission has a whole medley of other duties to perform. It is committed to making the new chamber ‘broadly representative of the whole of British society’ – no small task. It even talks of appointing members ‘from all walks of life’ – a tall order, if you consider it. These, however, are more aspirations than exact duties. The only statutory duty proposed for the Appointments Commission is one of ensuring that at least 30 per cent of new members are women (and at least 30 per cent are men), and of making steady progress towards a balance of the sexes. This is based on the claim that the Upper House has ‘too many white males’; heaven knows where that leaves the House of Commons. At the same time, the Commission must use its best endeavours to see that minority ethnic groups are represented in proportion to their presence in the population as a whole.
There are some unstated assumptions here (sex creates a statutory duty; race only deserves ‘best endeavours’; religious minorities get nothing). Jews (and I think Irish) do not usually count as ethnic minorities in the official mind; Muslims, being a religion not an ethnic group, are not eligible for secular liberal inclusiveness. It is not hard to think of other minorities who are left out of this apparent search for broad representativeness. If Wakeham, or Blair, really must nail their colours to the mast of representativeness, then they are bound to stumble if they pursue a highly selective form of it. Important minorities are omitted without a word – sexual minorities, for a start. Working by quota in the name of fairness is one thing; working by quota and then not having a homosexual quota may excite anger in certain quarters. Then what of atheists, denied the recognition freely extended to several less numerous groups of believers? What of the rural minority in an urban society? What of the unemployed, the sick, those on benefit? Why, in passing, do the police and the Armed Forces not get the recognition that goes with a legal career? And what of the working class – but presumably all agree on their exclusion from public life. (The hereditary peers at least included a bus conductor.)
Finding women legislators will not be easy. Even Blair could not reach the 30 per cent target now set by Wakeham. Of the 181 life peers created in 1997-99, only 36 (20 per cent) were women. Representation of women from outside the female élite will not be easy, while the female élite itself will have better things to do than a 15-year stint of dreary labour. On the male side, it seems very likely that the new chamber will consist of nonentities in their fifties and sixties whose careers are behind them and who are as unrepresentative of the public as anything could be. No young or middle-aged person, unless very second-rate, will have any time for it.
The independent members, or cross-benchers, appear in the Report in idealised and indeed muddled form. The Commission has to ensure that they number 20 per cent – or 110 – of a House of 550. Russell says that in the interim House they number about 150, so that for the foreseeable future there will be no need to appoint any at all. They are visualised
as being 110 Lord Weatheralls, impartial, public-spirited, high-minded. Their job is to prevent any one party having an overall majority. This is a bit innocent. The time may come when the independents are not lofty Lord Weatheralls, but malign mischief-makers. The Report is muddled as to whether independent means independent of all parties, or of all major parties only; there is a difference, for minor parties may be represented in future houses – and are the Lib Dems major or minor? Can one not foresee a grand coalition of the Celtic Fringe, Liberals, Livingstonites and some regional elected members, put together with the aim of obstructing all legislation unless the English taxpayer is made to cough up more cash? The Wakeham Report would have given such cussedness a certain legitimacy.
Criticisms of the membership proposals are both theoretical and practical. Theoretical, because they are based on confusion between the two meanings of the word represent: to represent, used sociologically in the sense of to resemble a cross-section of society, is used as a pretext for removing the power to choose a representative, in the old sense of a person chosen to act on one’s behalf. Practical, partly because the proposals probably promise what they cannot perform, or can perform only very slowly and with great difficulties, given the multi-dimensional terms of reference regarding party balance, independent members, gender, ethnicity and total size. It is not just that this creates a jigsaw puzzle where placing any one piece affects all the others. It is that everything depends on the supply of vacancies available to the Commission over the years. This, to be blunt, depends in turn largely on the Grim Reaper, and elderly peers have proved remarkably tenacious of life hitherto. Speculation on such matters is idle, but given that the Appointments Commission starts with a nearly full house of life peers, it will be a long time before they have any significant room for manoeuvre, and talk of gender balance and representing every walk of life must surely be seen as irresponsible window-dressing.
The Commissioners have approached that part of their scheme which relates to fine-tuning with a dignified disregard for the numerical which could almost be seen as wily and prelatical. All in fact will in the end depend on the fine-tuning regarding the supply of vacancies, which cannot be known in advance; the rest is what Blair calls ‘gesture politics’. In particular, by putting the rather low figure of 550 for total membership, the Report has constrained future room for manoeuvre drastically.
As Russell wisely says, reformers of upper chambers in all countries are indulging their dreams, not so much of specific institutional reform, but of an ideal upper house, perhaps even of a utopian political system. Let us suppose for a minute that they succeeded; that in a moment of madness some ‘reformer’ did fashion a House of Lords which was by every criterion perfect. What then? This dream chamber, whether appointed or elected, would at once bring home in the most painful way the unrepresentative nature – some might say the institutionally sexist and racist nature – of the House of Commons. It will be a long time before the Lower House is 30 per cent female or 6 per cent ethnic, as Wakeham recommends for the Upper House. Indeed, so far will it fall short of the good, the true and the beautiful in these respects, that it would take an Appointments Commission for MPs to put matters right. I need not elaborate, for Downing St may already be working on just such a project. The point stands, however: the more estimable one makes the Upper House, the less estimable the House of Commons will appear. A fully reformed and representative House of Lords is a risk an unreformed House of Commons would be wise not to take.
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