Saturday, 17 March 2012


The following is reproduced here both for its own sake and as an example of the sort of counterweight to economic neoliberalism, social liberalism and geopolitical neoconservatism that is not permitted to be published in greater depth at public expense, according to the unrepentant Trotskyist and erstwhile Director of a Communist Party continuity think tank whom David Cameron has appointed to decide these things because coalition has kept him from his intended and promised seat in the House of Lords and at a ministerial desk. Beatrice Ferguson writes:

The ability of the House of Lords to effectively scrutinise and revise legislation is in many respects dependent on its independence from the House of Commons. Charles-Louis de Secondat, Baron de La Brède et de Montesquieu was correct in his separation of powers theory first published in 1748 De L'Esprit Des Lois, in which he famously argued that the freedom of the state was dependent on "the legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislative.”

This is not a separation of powers between the executive, legislature and judiciary in a strict sense, but rather in terms of mixed government, in which the relationship between each is governed by a system of checks and balances. In other words, the independence of each body ensures the complementary relationship within the constitution. Montesquieu's "separation of powers, together with the rule of law and parliamentary sovereignty runs like a thread throughout the constitution of the United Kingdom." This ensures diffusion rather than concentration of power within the state.

The Lords' freedom from the party whip enables it to carry out unbiased pre-legislative scrutiny and, in combination with its expertise and the influence of independent crossbenchers, is critical to its ability of keeping the Commons in check by delaying legislation and enforcing legislative amendment. This complementary relationship between the two chambers is premised on two things: the representative system by which candidates become members and the legislative framework.

The distinctive composition of each House i.e. one elected the other not, under the same legislative framework of the Parliament Acts, ensures that power is rightfully concentrated in the Commons as the prime democratic expression of the people, and enables each to effectively carry out its respective duties. To drastically alter any one of these core constitutive features therefore, would result in a regression in the distribution of power, the independence of each governing body and the complementary relationship necessary for effective democratic governance and law making.

The concern, represented by the growing opposition to the Coalition Government's plans for an elected Upper House across the peerage from all sides of the political spectrum, is that the proposals put forward in the draft bill do not sufficiently account for the strategic nor democratic cost of these reforms, which would see our democratic constitutional process transform from one based on complementation, to one of competition. The danger is in the Coalition's assumption that the balance of power between the two Houses would remain the same following reform, and that the Lords would continue to carry out its duty of pre-legislative scrutiny in much the same way as before. This view was clearly articulated by the Minister for Political and Constitutional Reform, Mark Harper, during ResPublica's "Reforming the Lords: Toward a Truly Representative House" event last Wednesday.

Responding to a question by a member of the Joint Committee on why it was felt necessary to include Clause 2.1 in the bill, the Minister replied that it reflected the fact that the Parliament Acts would go unchanged, and that while election would transform the relationship between the two chambers the legislative framework would remain the same, and the outcome of the implementation of the proposed reforms would be to strengthen Parliament overall. Yet, if the relationship is going to change it would seem contradictory to suggest that the legislative framework on which that relationship is premised would remain the same. It is the legislative framework and the representative system which secures the independence of each body, granting power to the people whilst at the same time protecting legislation from the writ of the executive.

The importance of an asymmetrical bicameral system like our own, is not only in the different perspectives that it brings to the political process, improved quality of legislation and the ability of the Second Chamber to hold the government to account, but also in its system of appointment and or nomination which allows for the membership of professionals and individuals from minority groups otherwise under-represented at a national level. In this way, Second Chambers, including the House of Lords, have a democratic function and a truly representational value which, in combination with the legislative framework, does not compete with but rather complements the supremacy of the Commons. This added value is something which an elected Lower House cannot achieve.

Thus, a critical starting point for any discussion regarding the House of Lords reform, would be in thinking of ways in which to make the Upper House more representative, thereby increasing its democratic authority, whilst safeguarding the way in which our constitutional process operates and the complementary relationship between the two Houses therein.

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