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29 March 2004
A bizarre confrontation between the Commons and the Lords over an obscure bill has wide implications for the way that legislation is reviewed. How much longer can Britain's creaking constitution cope with a government so determined to get its way?
At issue are the government's plans for all-postal voting trials in elections for the European Parliament and local authorities in June. The European Parliament and Local Elections (Pilots) Bill introduces these trials in four Euro-constituencies in England: the East Midlands, the North East, the North West and Yorkshire and the Humber.
The government's proposals are at odds with the recommendations of the Electoral Commission, who originally proposed two trial regions, namely the North East and the East Midlands. Although four other regions were found to be potentially suitable, the commission felt "unable to make a positive recommendation in respect of [them]". Faced with government proposals to trial four regions, the commission commented:
"...pilots that cover over a third of the English electorate in June go further than we think necessary ... especially in the absence of the underlying legislative changes we think necessary. There is also in our view increased risk ... in running on such a large scale and we are not persuaded that the risk is outweighed by what we might learn from four regional pilots as opposed to two."
That is pretty clear, and might be felt to be conclusive coming from a body established by parliament to advise on such matters. Indeed, the bill as introduced had covered only the two regions recommended. But in January the government announced that it wanted to add two more regions, namely Yorkshire and the Humber and the North West. To cut a long story short, the bill as so amended passed the Commons but has been rejected four times by the Lords. Last week the Lords proposed a compromise which would include Yorkshire and the Humber in the trials, which is a position that the electoral Commission appear now willing to endorse. This has so far been rejected.
The election authorities in the regions in question are, understandably, anxious to know on what basis their elections are to be conducted in three months' time. If the bill does not pass before the recess this week, there will not be time to make the necessary preparations. All in all it is a serious mess, which begs the question why the government has been so desperate as to push this one to the wire.
There are clearly dark politics going on here. Theories abound that the increased turnout of a postal ballot will favour the Labour Party in regions where it is traditionally strong. Is this clash with the Lords, therefore, nothing more than an old-fashioned squabble about political advantage? Or does the government have a deeper purpose related to what is shaping up to be a defining New Labour struggle to curb the revising powers of the second chamber?
In relation to the bill itself, the Lords are standing on the firm ground put in place by the Electoral Commission. That the government has used its majority in the Commons to put through a measure going against this independent body's advice provides an open invitation to a revising chamber to correct the aberration. It is precisely what the Lords are for. Why, therefore, is the government aggravating the confrontation? Is it seeking to make a wider political point?
Much of the argument from the government benches last week related to the constitutional impropriety of the Lords continuing to oppose the will of the elected chamber. The spectacle of the Lords resisting the Commons "unreasonably" may play well with Labour parliamentary supporters who have otherwise little appetite for the government's half-baked proposals to reform the upper house. If this is the strategy - to garner parliamentary support for weakening the House of Lords by talking up this grand confrontation between elected and unelected chamber- then it is worth noting that from a rational perspective it ought to have precisely the opposite effect.
Suppose for a moment that the government is, in fact, seeking to widen this experiment for its own electoral advantage. There is nothing of a constitutional nature to prevent it gerrymandering in this way. Parliament can decide by simple legislation how to conduct elections; the Electoral Commission is only there to advise. It is because a government in control of the House of Commons is so powerful that the courts have developed the law of judicial review as a means of keeping it under scrutiny.
The logic of judicial review is this: that Britain's constitution may be, famously, unwritten, but the country does, nonetheless, have a constitution, which must, by definition, place some limit on what a government can do. In the absence of a formal framework for examining the "constitutionality" of legislation, judicial review has created a threshold of "reasonableness" to control what government ministers can get away with.
The connection between judicial review and the House of Lords goes deeper than the fact that some senior judges sit in the house. Both can interfere with a government's politicised agenda, and both are deeply resented by the present government for doing so. It is difficult to avoid the conclusion that the hiving off into a not very supreme court of the Appellate Committee (the judges) from the legislative House of Lords on spurious grounds of separation of powers represents a desire by the government to divide and rule these two thorns in its side.
When it comes to the separation of powers, the separation that is really lacking is that of the executive (the government) from the legislature (chiefly the House of Commons). The control of the latter by the former thorough whipping and patronage prevents effective review of the executive and is also profoundly undemocratic. In this context the depiction by the government of its now serial confrontations with the Lords as a clash between the will of the people on the one hand and a unelected residuum of aristocracy on the other is disingenuous to say the least.
The ping pong between Commons and Lords over the postal voting bill illustrates clearly the rôle of the upper house as a constitutional defence mechanism to prevent an executive in control of the Commons from doing what it likes. The Lords may be quaint, but then so is the notion of an unwritten constitution in the information age, and the legislative Lords and their judicial colleagues have written for themselves an important if inadequate script as guardians of this celebrated non-document.
Reform proposals for the second chamber do not always recognise this point. An appointed chamber is seen as a charter for "Tony's cronies", linking it too closely with the government and lacking the political credibility necessary to make it effective. Independence from the executive is certainly the key to this effectiveness, but it does not follow that selection by appointment is harmful to this. The evidence of Gavyn Davies and Greg Dyke at the BBC (both "cronies" in their day) suggests that able individuals will tend to do their own thing.
What would certainly be worse is an elected chamber organised on party lines that reproduced the strong whipping and patronage system that militates so effectively against independence of action in the voting lobbies of the House of Commons. In that case the poor, benighted constitution would have no defender at all. It is beginning to look as if reform of the House of Lords is no longer possible on a piecemeal basis and that the entire constitutional edifice of which it forms a part is crumbling. Time, perhaps, to call "time" on the unwritten constitution and get something down on paper that is clear to all.
©Copyright Martin Whitlock 2004