Constitutional change, if thoughtful and radical, is not irrelevant. It can support a more genuinely democratic and efficient governance system, which reflects both independent expert opinion and a better informed popular will. Whether or not the UK opts for either major or, more likely, minor constitutional change is still not clear. The need to resolve issues of constitutional change (and effective democracy) is not one that is confined just to the UK: It is for every state in a modern, globalising polity and economy, and, indeed, for global governance itself.
BACKGROUND
There is, once more, to be a debate in the UK Parliament on reform of the House of Lords, the second chamber in the bi-cameral British constitutional system. The debate may be extended to the whole country if there is to be a referendum. Hence, after 100 years of discussion, the intention, already agreed upon by the three main political parties in the UK, is to have members of the second chamber directly elected, as opposed to the current system of appointment. Proponents of direct elections, whether of 100% or a lesser percentage (80% is the current proposal), tend to use the argument of how can anyone oppose a democratically elected second chamber. Opponents of direct elections raise objections based on the powers to be granted to the second chamber.
In the UK – and also in other countries where the issues of the existence and powers of a second chamber, and its systems of representation, are currently being debated e.g. Ireland and Canada – the issue of the powers of the second chamber is an important consideration. In the UK there is no formal written constitution. There is therefore no clear separation between the Legislature, i.e. the House of Commons, which is directly elected, and the Executive, which is, effectively, appointed from the party(ies) that have an overall majority. It could also be argued that there is a form of indirect election of the Prime Minister, i.e. by members of the majority party. Hence, in UK general elections, people tend to speak as if it is the government which is being elected, rather than members of the legislature.
Not all states which have bicameral (two chamber) systems have them established via their constitutions, some are simply established ‘institutionally’. This is the case in the UK where there is no constitution as such, only so-called constitutional conventions. In all large federal states, e.g. the US, there are constitutions. It would, otherwise, be difficult to have an agreed system of democratic governance.
It could be argued that the UK is, effectively, a ‘loose’ federation, particularly given the recent devolutions which have taken place in Scotland, Wales, and Northern Ireland. In any case, given the proposed reform of the representational procedures for composing the House of Lords, it would seem timely to consider what other, arguably more important, constitutional changes might be considered. Indeed, with the possibility of a vote for the independence of Scotland on the near horizon (2014), these potential reforms should form part of a new, written, constitutional settlement for the UK.
A NEW CONSTITUTION FOR THE UK?
A new UK constitutional settlement would allow a more extensive and reasoned debate about the composition and powers of the second chamber. Consideration simply of the method of selecting members of the second chamber, where a more radical constitutional approach is required, illustrates the usual British piecemeal approach to such issues. A wider examination of constitutional issues would also enable the UK population to be better educated as to how their system of governance currently works (or rather does not work) democratically. It has been said in the past, by a Conservative ex-Lord Chancellor, Lord Hailsham, that the UK governance system is an “elective dictatorship”.
It would be valuable for a Constitutional Convention to be specially convened. The Convention would consider a number of potential changes, together with comparisons with other countries’ systems and experiences. The deliberations of the Convention need take no more than two years, and all of its recommendations should be voted on by a UK-wide referendum.
So what changes in the UK governance system should be advocated? The general aims of the suggestions listed below are to improve both the quality and efficiency of lawmaking in the UK and increase democratic accountability. The suggestions for discussion include:
- The need for a formal written constitution, indicating the structure and functions of the governance and legal systems. In particular the composition and respective roles of the executive, the legislature, and the Supreme Court would be examined. Consideration should be given to the establishment of the post of President, either directly elected or indirectly elected by a joint vote of the two chambers.
- A clear separation of powers between the executive and the legislature, thus enabling the latter to better hold the former to account. This is perhaps the most substantial and important operational change.
- A constitutional settlement enabling a full federal system to be established subsequently, if voted on in a UK referendum.
- A second chamber to be formally established with certain superior powers relating to constitutional matters, including 1) sole power to call referenda; 2) agreement on treaty changes; and 3) the taking of military action. These powers would be exercised on recommendations from the first chamber. Other powers of the second chamber would be the revision of legislation from the first chamber and own legislation on legal issues (as is now the case with the House of Lords).
- Other constitutional issues, including the interpretation of certain aspects of the constitution, would be allocated to the Supreme Court.
- Direct elections, by proportional representation, would be held for the second chamber for a proportion, equal to or greater than 50%, of the members. The members would be drawn proportionately (to populations) from Scotland, Wales, Northern Ireland, and England. The total number of members should be half of that of the first chamber and the directly elected members would serve for nine years, with one third retiring every third year, after the first term of office. The remaining members would be indirectly elected by an electoral college of the directly elected members and representative of all major interest groups, including religious, academic, professional, employers, and trade unions. Population gender and ethnic balance would be observed in the election.
There will of course be those who will argue that the UK is a special case and that ‘muddling along’ without a formal written constitution has served the UK well. It has not.
The issue of decision-making powers is important in relation to what we mean by the term “democracy”. Majoritarian electoral systems can lead to the so-called “tyranny of the majority”. The “popular will” delivered by majoritarian systems can easily lead to the domination of significant sections of the population.
This is one of the reasons why bicameral systems are popular in larger countries, particularly those with federal systems. In systems of representative government it may also be the case that the governing elite may enact legislation or pursue major policies (including declaring war or invading other countries), ostensibly on behalf of the electorate who voted them into office, but which are opposed by large sections of the population.
In the UK, two examples come to mind: the invasion of Iraq, and, more recently, the Health and Social Care Act reforming the National Health Service. In Greece, Spain, Italy, and Ireland there is substantial popular opposition to austerity measures being enacted by their governments, in this case at the behest of the European Union, with the austerity policies being strongly urged by Germany.
What is perhaps interesting in these examples is that not only was there popular opposition, but the non-government elites/experts were aligned with the popular opposition view. Another defect of majoritarian government systems is that they also suffer from a willingness on key issues to ignore both popular opinion, and non-governing elite/expert opinion.
BICAMERAL SYSTEMS: THE DEMOCRATIC RAISON d’ÊTRE
As a recognition of the need to address this problem, second chambers are, in general, seen as comprising more expert, or technocratic, opinion, which is drawn from constituencies other than the political class from which the members of lower houses are seen to be drawn. Often members of the second chamber are older than those in the lower houses, with experience from other occupations and professions. In one case, Ireland, the second chamber, the senate, is entirely vocational in representation. Often the length of the term of service is longer than that of the members of the lower house, nine years in the case of both Italy and Ireland.
Universal suffrage is used in only 40% of cases to elect all or a proportion of members of second chambers in a bicameral system. Otherwise, varied methods of representation are used. For instance, in the US the Senate is directly elected by universal suffrage; in Germany the Bundesrat is indirectly elected; and in Canada the Senate is appointed. Interestingly, in the case of Italy, the voters for the senate have to be over 25 years of age, as opposed to 18 years for being an elector for the lower house of the Italian parliament.
Whatever the system of representation the terms are generally longer for members of the second chamber and the members of second chambers are older and have a wider experience than those in first chambers.
OTHER COUNTRIES’ SYSTEMS
Most large countries (over 10 million), and in large federal countries, bicameral systems are common. The majority of smaller countries in the world (around two-thirds) have unicameral (single chamber) systems. The two key issues in bicameral systems are the relative powers of the two chambers and the method of composing the second chamber. The first chamber is always elected by universal suffrage, whether by a majoritarian system or by some form of proportional representation. The second chambers are composed by variants on direct elections, indirect elections, and appointment.
Just over half of second chambers have the same powers as the first chamber where both are wholly elected. In appointed or indirectly elected second chambers, the first chamber has the major share of power, with the exception of Canada where the powers are the same. Only in one case, Italy, is there a system where the second chamber may be said to have seniority in terms of constitutional power, though formally the two chambers have equal powers. The second chamber, in most unitary states, is a revising or amending chamber, allowing more time for reflection on draft legislation before being finally enacted. However, in federal states the two chambers tend to have equal powers.
Some important constitutional powers are held by second chambers in some cases. For instance, the US Senate has to ratify treaties and to allow the country to go to war. In a number of other countries certain constitutional powers are held by the second chambers. However, where countries have written constitutions then the Constitutional Court is charged with the main responsibility where disputes over constitutional rights occur.
CONSTITUTIONAL CHANGE IN THE UK
There will be those who will argue that the resolution of the continuing economic crisis is a clear priority. Constitutional reform – whether limited to the current debate on the composition of the second chamber, or far wider as I am suggesting – is an irrelevancy.
Aside from the suggestion that managing one priority is enough for the government or for the people of the UK, the two issues are linked. As with the Iraq invasion, popular opinion (as illustrated by the anti-government vote in the recent UK local elections) and elite/expert opinion is aligned. There is a belief that the current economic austerity measures, in themselves, are incapable of reducing the deficit/GDP ratio in any reasonable timescale, without considerable social and economic damage.
So constitutional change, if thoughtful and radical, is not irrelevant. It can support a more genuinely democratic and efficient governance system, which reflects both independent expert opinion and a better informed popular will. Whether or not the UK opts for either major or, more likely, minor constitutional change is still not clear. Whatever, the resolution of the current debate, the issue of constitutional change and effective democracy is not an issue confined to the UK, it is for every state in a modern, globalising polity and economy, and, indeed, for global governance itself.
The author, Michael Lloyd is a member of the Editorial Board of Read-Online.Org. He is a Senior Research Fellow, Global Policy Institute, London, and Director of LCA Europe Limited. (Contact: Michael.Lloyd@read-online.org)
Opinions expressed in this article are those of the author and do not necessarily reflect the editorial views of Read-Online.Org
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The only real issue with the UK is not with changing constitution or creating a new one. It is more fundamental than that. What is sorely needed is for a lot more devolution of power to the various parts of the country – Wales, Scotland and NI. They need to have the rights to operate more independently. The UK has to become more of a loose union of semi-autonomous states.
Outside of this, all constitutional changes will be simply an exercise in futility – a waste of time.