Monday, 16 December 2002

Reforming Britain's second chamber (updated)

One of the world's oldest legislative bodies — the British House of Lords — is on a slow, but sure course to extinction. Its importance has been diminishing for centuries; the importance of the Commons was greatly increased by the 1689 Bill of Rights, and the 1911 Parliament Act stripped the Lords of most of their powers. In 1999, the House of Lords Act removed the voting rights of all hereditary peers (excluding 92 who retain their voting rights until the reform is complete).

Since 1999, the effort to reform the Lords has stalled. Some have speculated that current Labour Prime Minister Tony Blair likes the Lords the way it is — emasculated and without any democratic legitimacy. Its current composition is most similar among democracies to that of the Canadian Senate: dominated by the “life peers” who are appointed by the prime minister of the day with the assent of the monarch.

In the past week, the Joint Committee on House of Lords Reform issued its First Report. The report recommends a chamber of 600 members serving 12-year terms, most likely with some proportion of the membership appointed and the remainder elected (there are also options for a fully-elected and fully-appointed chamber). The report does not envision giving any additional powers to the chamber; it would still be limited to delaying “money bills” no longer than one month and other legislation (except that extending the duration of a government more than five years) no more than one year.

The lack of additional powers for a more representative upper chamber is troubling; the reason the Lords lost most of its powers in the first place is due to its lack of democratic legitimacy. If the upper chamber is to be more legtimate, it ought to have powers commensurate with that legitimacy. At the very least, the reformed upper chamber ought to have power to indefinitely block any legislation that amends the “constitution” — whatever that may be. More importantly, it ought to have oversight powers over the executive, similar to the investigative powers of the U.S. Congress over the bureaucracy and presidency.

As to the upper chamber's composition, I believe a smaller, fully-elected chamber is appropriate. The Commons functions with over 600 members mainly because (a) the Commons largely functions as an electoral college for the executive and a ratifier for its decisions and (b) the business of the Commons is largely orchestrated by the government of the day. The upper chamber would neither choose the prime minister nor would it largely operate in the interests of the prime minister. An upper chamber of 160–240 members seems appropriate.

The chamber should also be fully elected. Assuming a twelve-year term, my recommendation would be to elect a quarter of the membership every three years via party list proportional representation (as Britain already uses for “top-up” seats in the Welsh and Scottish parliaments and for elections to the European Parliament). Vacancies arising through death or resignation could be filled by appointment by the prime minister, or by nomination of the departed member's party.

An upper chamber reformed in this way would be an effective bulwark against overreach by the government of the day while still retaining the prerogatives of the Commons as the primary legislative chamber.

Iain Murray has also discussed Lords reform in his blog.

Monday, 10 February 2003

More Lords Reform

Jacob T. Levy has the scoop on the latest discussions in blog-world (from Iain Murray and Michael Jennings) on the abject failure of Lords reform in Britain to get anywhere. (I meant to post on it earlier but got distracted by bright, shiny objects.) The telling sentence:

Now that the traditional British constitution has been abolished, with astonishingly little debate and no clear sense of what to replace it with, that's proving to be a real disadvantage.

Incidentally, upper houses in general have proved themselves rather pointless without either federalism or feudalism as a justification. Take U.S. states for example, post-Baker v. Carr (369 U.S. 186)*: one state (Nebraska) has abolished its upper house, while the rest just plod along with an upper house that's smaller but otherwise elected on the same basis of representation (single member districts, first-past-the-post) as the lower house. While this arrangement does preserve the check of requiring both bodies to agree, it's not clear how much of a check this is as a practical matter (free grad student paper idea: compare the rate of passage of legislation in the Nebraska legislature to a bicameral state).

It seems to me that proportional representation (either pure PR, or the “top-off” form used in Britain's subnational legislatures that still allows some districts) is the ideal solution for making upper houses more relevant: it also has the bonus (if you go for pure PR) of not requiring redistricting fights. Even regional PR might be a good idea — states like Mississippi and Tennessee that have notable sub-state regions (the three Supreme Court districts of Mississippi and Tennessee's Grand Divisions) could use them as the basis for regional lists, apportioning the seats by population.

The downside is that it would probably lead to more partisan state legislatures, so PR Senates may only be desirable in states that already have strongly partisan legislatures — so Tennessee would probably be a reasonable case, while Mississippi may not be.

Previous discussion here.

* Baker v. Carr and its successors invalidated the apportionment of legislative chambers in the United States on any basis other than population under the 14th Amendment's Equal Protection Clause, with the sole exception of the U.S. Senate (whose apportionment is specified in the Constitution in a particularly airtight fashion).

Tuesday, 11 February 2003

Bicameralism and Lords Reform

Michael Jennings has a new post that talks about upper houses in Australia; unlike Canada (where, if I recall correctly, none of the upper houses remain except the federal Senate, which more resembles the Lords than either the Australian or American Senate in its powers and composition), five of the six Australian states still have upper houses, yet also have parliamentary governments, which tend to lead to weak upper houses.

My personal observation is that bicameralism works best when powers are symmetric; asymmetric bicameralism can quickly reduce one house, normally the upper house, to irrelevance. But, asymetric systems can be useful in a parliamentary system, provided the restraint provided by an upper house is seen to be legitimate.

Incidentally, the U.S. Senate, like the upper houses in most Washingtonian presidential systems*, does have slightly more power than the House — primarily, the confirmation power of “advice and consent.” However, most scholars consider Congress symmetric, and that is certainly the case in terms of the ordinary legislative powers of the two chambers.

Link via Jacob Levy; previous discussion is here.

* My spur-of-the-moment coinage to compare with “Westminster parliamentary systems,” to describe the presidential systems used in most Latin American countries and the Philippines, which are based on the U.S. system of separation of powers. (Nebraska wouldn't be a pure Washingtonian system, because of the lack of an upper house. This is the most egregious example, but most states depart from the Washingtonian model in certain respects.) Let's see if that one's as successful as “Lottroversy.”