Second Chamber, Second Thoughts
The Conservative Government’s House of Lords defeat over Tax Credits provides a timely reminder that essentially what we have here is a fragile Government with a small majority, representing a Party that presents a public image of being upbeat and popular, but is actually insecure, has narrow appeal, limited popular authority and is riven with deep divisions.
The Government was defeated in the House of Lords because the Chancellor chose to use a statutory instrument to enable the politically controversial Tax Credit measure, rather than using the more orthodox or scrupulous route for a major change of this kind; a Parliamentary Bill. David Cameron and George Osborne did not present a Bill to Parliament, no doubt because a Bill would face much closer scrutiny in the House of Commons (including from Conservative MPs with small majorities or representing the less well-heeled, or perhaps even those simply possessing a greater sense of fairness or decency) than the devious but convenient ploy of a statutory instrument, adopted by the Chancellor.
On recognising defeat in the House of Lords, George Osborne said this:
“David Cameron and I are clear that this raises constitutional issues that need to be dealt with…. …. However, it has happened, and now we must address the consequences of that. I said I would listen and that’s precisely what I intend to do. I believe we can achieve the same goal of reforming tax credits, saving the money we need to save to secure our economy, while at the same time helping in the transition. That is what I intend to do at the Autumn Statement. I am determined to deliver that lower welfare, higher wage economy that we were elected to deliver and the British people want to see.” (Reported in dailymail.co.uk/wires/pa/article-3289269/George-Osbornes-tax-credit-cuts-face-Lords-showdown: 27th October, 2015)
This statement is extraordinary. The central acknowledgement is clear: “I believe we can achieve the same goal of reforming tax credits, saving the money we need to save to secure our economy, while at the same time helping in the transition”, which can only mean Osborne believes he can both achieve his budget objectives and ameliorate the impact on those worse affected – it either means this, or it means nothing.
So, let us reflect on this statement. Let us leave aside whether the Autumn Statement will live up to the claim George Osborne makes; that is unknown, and, although David Cameron’s replies to Jeremy Corbyn’s six plain questions on the matter at PMQs are carefully worded to be less than illuminating; for the moment, let us be generous, let us show that spirit of magnanimity the Conservatives have so notably failed to rise to; let us take what Osborne says at face value: he can achieve all the welfare cuts required while simultaneously, significantly ameliorating the impact of the measures on the worst affected citizens.
The question that hangs over the Government is a simple one: why did Osborne not make this adjustment to his proposals in the first place? Why did he need to face defeat in the House of Lords to discover an amended, effective and less severe solution? All Osborne is going to do now, is remove measures that were intended to exact egregious, worthless penalties on helpless people. Why were these people selected for this treatment? Why did he draft the Statutory Instrument in such a way as to produce needless adverse effects on ordinary people? Why was he prepared to inflict serious financial suffering on his fellow citizens, when in some significant cases this was clearly, and by his own admission, unnecessary? Why would anybody, still less a responsible, senior Government Minister do such a thing?
Osborne’s proposals were thoroughly objectionable to the Second Chamber; a Second Chamber which, we need scarcely be reminded, consists of a very carefully selected or self-selecting segment of society, people either chosen by politicians or otherwise representing a privileged elite; a Chamber that is not a hotbed of radicals, but rather contains all too many neo-liberals and neo-conservatives, and has always and inevitably been a notably very conservative institution: yet this narrow constituency has produced a defiant rebellion and voted against the Government’s proposals.
This is the time when the Unionist insistence on the siren appeal to the “something for nothing” attack on all ‘welfare’ finally comes home to roost. These semi-excluded citizens, up to 3 million targeted by Osborne’s measures, who are so easily, and relentlessly packaged and labelled as ‘scroungers’ by both politicians and media, have always been taken for granted by politicians in power; politicians who only carry out these measures because they are sure the people targeted will accept their political punishment in silence, or at worst react only with inertia or despair, but not with any political expectation of anything better, or offer any threat or penalty to the careers of the politicians who make the decisions. Politicians can abuse such people with impunity, and the politicians know it. Why do politicians do this? Because they can; they are confident that this very carefully targeted section of society (so often ‘softened up’ by the media first), may be disposed of without politicians conforming to contemporary, conventional standards of political respect, or any commonplace standards of respect at all.
Respect like this; the respectful tabling of a Bill, a special and selective privilege reserved for people who matter to politicians wishing to hold their seats; measures in a Bill which we can be sure will be carefully scrutinised before being passed into law by the forensic, militant representatives of people who are, in the immortal words of Oliver Letwin MP, the “families with sharp elbows” (the people who vote for Letwin); statutory instruments, on the other hand, are reserved for people who don’t count; people whose elbows are worn down, or never thought elbowing others was an intrinsic part of politics or fairness, or would ever dream of elbowing anyone; or if they thought of it, knew they would never be allowed to ‘get away with it’ if they did try to elbow anyone aside. They know what would happen to them if they attempted to lock elbows with the “families with sharp elbows”; the sharp elbows that own the politicians.
This so-called constitutional ‘crisis’ is also a reminder that a bicameral parliament has its uses even in Britain’s decaying apology for a modern representative legislature. Nevertheless the basis of the Second Chamber’s authority, the House of Lords, much like the traditional authority of Westminster itself, has almost collapsed.
The fact that the only answer Conservatives can think of to solve the credibility deficit is to flood the Second Chamber with hundreds of yet more peers (in a chamber already awash with redundant, superannuated politicians and other subsidised, self-employed members on a scale unknown in any democratic country of comparable – or any – size, anywhere in the world), reveals only the intellectual inadequacy residing at the heart of the Conservative Party; but we knew that.
Jacob Rees-Mogg MP, exuding a thin, fogeyish constitutional wisdom that is no more than an insipid parody of Dicey, defends the government; but reveals only that he is ‘making smoke’ for a Conservative Party that has reduced itself to unseemly constitutional scavenging of a fairly low order. Statutory instruments were devised as a minor administrative convenience, not as methods to facilitate life-changing measures affecting the British people; until it was discovered that they might also offer Governments a way to deflect awkward questions or proper scrutiny of major policy issues in the House of Commons, and even better, simply avoid altogether what would otherwise be inconvenient or difficult legislation, or any disputes that would disturb the smooth, bland public relations operation that seems to have become the sole public purpose of Government.
Rees-Mogg therefore does the House of Commons a profound disservice by defending this use of statutory instruments, which represents a far worse misuse of Parliamentary procedure than the House of Lords Tax Credit vote; it is a hidden assault on the rightful place of the House of Commons to manage major political change. The implications of the measure are precisely the opposite of Rees-Mogg’s elaborately disguised subterfuge.
In 1407, 1671, or 1678 (dates Rees-Mogg loves to recite as an incantation that for the casually unthinking, miraculously turns ancient constitutional lead into modern gold), they had no conception of “statutory instruments” and no understanding that a “money bill” might be interpreted as being an instrument devised solely to ‘pass’ (perhaps ‘pass-off’ is the operative term) a critical new form of quasi-legislation without recourse to full parliamentary scrutiny and enactment. Erskine May notes that, “rejection of [a supply bill which is not a certified money bill] is permissible” in the House of Lords, although “it has virtually ceased to be practical”; to which last, it can only be said that, after all, it has turned out to be practical – as David Cameron has found out. There are circumstances that trump even 1407.
It should be added here that what is a ‘money bill’ is decided not by Government, but is “certified”. It is certified exclusively by the Speaker. The Government is therefore trying to ‘pass-the-buck’ for using inappropriate methods to enable controversial issues; cynically placing the increasingly exposed and unfortunate Speaker in the same invidious position he now finds himself in over EVEL. Incidentally, and parenthetical to this discussion, the Scottish people have now been warned by this resort to statutory instruments over Tax Credits; exactly the same kind of cynical political scam will happen hereafter, mutatis mutandis, to everything that is devolved to Scotland post-Smith Commission and the Scotland Bill, but is then found to be inconvenient to the interests or operations of central government; which we may calculate means – potentially just about anything of moment that arises between Holyrood and Westminster.
Then there is the small matter of the Salisbury Convention (named after Robert Gascoyne-Cecil, 5th Marquess of Salisbury; 1893-1972), which “ensures that Government Bills can get through the Lords when the Government of the day has no majority in the Lords”. Under the Salisbury Convention the House of Lords will not contest a measure that has appeared in the elected Government’s election manifesto.
All the Conservative Party required to do to silence the House of Lords on Tax Credits was to announce its intentions on Tax Credits in the 2015 General Election Manifesto. It did not do so, and it did not do so quite deliberately and with calculated cynicism; for Cameron and Osborne did not wish the public to be able to work out just how toxic, how casually indifferent to misery their proposals were – at least before the election. Worse, David Cameron made explicit public, broadcast interview statements during the campaign that would lead any fair-minded critic to believe that Tax Credits would not be affected in the way the Government now intend. Indeed throughout the campaign demands were made that the Conservatives provide information on what specific measures would be pursued to produce £12Bn of expenditure savings. The Conservative Party blankly refused.
Finally on this tiresome matter of slippery, wriggling Conservative dissimulation; Rees-Mogg now in some confusion, threatens the House of Lords that the Conservatives will create 100+ new peers, leading inevitably to House of Lords reform – which, of course, and with typically urbane aplomb, if equally unflappable incoherence, he opposes. Hoist by his own petard, the British public may only respond to Mr Rees-Mogg, George Osborne and David Cameron with a richly deserved rejoinder: “bring it on”.
So let us look briefly at some genuinely fundamental issues, and equally briefly at some possible solutions. I shall deal with them only in the broadest terms, the mere sketch of ideas that have too infrequently been explored, but that are more radical than anything the Conservative Government or Party (or Labour for that matter) have ever contemplated in the way of reform.
The Conservative Government was returned to power in the 2015 General Election on a turnout of 66.1% (representing a steep decline in elector participation from the 80%+ turnouts once achieved, when the British people imagined Parliament might actually represent their interests, and automatically awarded it their trust). The new Conservative Government managed to win only a modest 36.9% of the vote in 2015, just sufficient to establish a government, but only by defeating political opponents who were even more unpopular than the Conservatives. This is political failure feebly packaged as success.
This method of ‘government by the least unpopular’ to which we are now reduced in Britain, produced only a small Commons majority for the Conservatives, which was in turn derived from the derisory support of only 24.4% (0.661 x 0.369) of the total electorate. This is less an example of democracy in action in a free society, than playing close to the margin of what can reasonably termed ‘democracy’ at all. Less than a quarter of the British people voted Conservative (or to put it another way, more than 3-out-of-4 of the British people did not vote for this government).
Parliament defines the outcome as “democracy”, but this kind of ‘democracy’ is a mere shadow of the past, when governments actually commanded respect and secured decisive popular authority, or compromised; governments could command authority because they represented the majority of the electorate, or were required to join a coalition to access power and compromise, or simply remained in opposition. The parliamentary system has since decayed, loss of trust is now habitual, and we are now moving electorally towards a new standard, a new quasi-democratic convention; government legitimised by nobody.
The Conservative Government is attempting to govern alone with the identifiable support of less than 1-in-4 of the British people; yet as long as they control a small majority in Parliament through the skewed effects of FPTP and falling turnouts, they may do precisely as they like, in spite of diminishing support from the British people.
The system no longer functions, and the strains are already showing in Parliament. Yet, how low would public support have to sink (% of total electorate voting for the governing party) before the politicians acknowledge the current electoral system is unsustainable: 20%? 10%? 5%? Nobody at all? Meanwhile the British people are voting with their feet: deserting the current Westminster Parliamentary system in droves, as recent general elections demonstrably show (politicsresources.net/area/uk/uktable).
Here are two proposals for change, for consideration by anyone reflecting on the future of the British electoral system and the structure of the Second Chamber. The first I draw deliberately (if ironically) from the precedent of the 1979 Scottish Devolution Referendum, in which a late Labour amendment to the Bill (tabled by George Cunningham MP), deviously placed a floor of support of 40% of the electorate, for the vote to succeed. The consequence of this was to defeat a measure for a devolved parliament that had the support of over 50% of the votes cast (and was itself in breach of all the standard Westminster election conventions, which still prevail today); but soon after this defeat of the devolved Parliament proposals, there was the 1979 General Election: Scotland was immediately left completely unprotected from all the worst effects of Thatcherism that followed, and had no institutional ability, politically to mitigate the damage that was wrought on community, economy and polity. Nevertheless the Labour strategy in 1979 offers an interesting precedent applicable to current circumstances, and all we need do is to make a slight adjustment to the principle to ensure the British elector is at the centre of future government thinking.
Any government elected to power on less than a 60% turnout, or any party that forms a majority Government in the House of Commons, but has received fewer votes than represents 30% of the total electorate, should be required to hold a new General Election within two years. Such a requirement, to return before full-term ill-supported Governments to seek a new mandate from the electorate, provides one simple and effective check on the unlimited exercise of power in Parliament. This would also require all governments to work much harder to encourage the electorate, and notably the sceptical, to vote; and it may also usefully oblige all political parties to take real public opinion into account on major issues – or even simply listen to the public – far more than currently obtains. It also places a premium on the requirement to govern only through wide consent.
Second, there is a clear contemporary concern about the democratic deficit which the House of Lords represents; so far, so unexceptional. At the same time democracy alone does not exhaust the legislative or parliamentary concerns of a free society. One issue to which I wish to draw attention here is the nature of political ‘reality’. I mean by this the need for our political system to reflect not only a democratic aspiration, but to offer a public mirror that is a representation of the underlying reality of the exercise of politics and power in Britain; how things actually work in our society and culture, not the PR gloss currently supplied by politicians. Our Parliament should not merely display the formal attributes of politics, but the substance; what is real.
In the past, the pre-Union Scottish Parliament represented the three great contemporary sources of power; the ‘Three Estates’ that even gave the Parliament its title. The Thrie Estatis consisted of the powers spiritual (pre-reformation prelates), temporal (the peers) and effectively the ‘commons’ (Burgh commissioners): this was a rudimentary but effective attempt exhaustively to represent all the sources of real power in the contemporary polity, under the Crown. It lacked more than a semblance of democracy, but when a Parliament was called it provided a reasonably exhaustive representation inside Parliament of contemporary ideas on political reality both inside and outside Parliament.
In the 21st century we have turned history on its head. We celebrate democracy but in most cases hide from public scrutiny both the exercise of power and its sources. In Westminster democracy has in consequence become more an exercise in public display, a public relations exercise which too often is reduced to the lowest common denominator: ‘inexplicable dumbshows and noise’, as illustrated in the routinely querulous PMQ. Meanwhile real power in both politics and society has retreated from view; it has become hidden, is exercised behind closed doors, protected by commercial privacy, secrecy laws, the elusive art of the lobbyist, the elevated pretensions of Government that smothers many of its critical activities under a cloak of Official Secrets and unchallengeable assertions. The show of democracy has virtually replaced the show of power in Parliament; for it implies what is clearly not true, that all power is exhausted merely by democratic representation.
In Westminster the hidden nature of power is represented best perhaps by a curiosity; the Remembrancer, the vestigial reminder of an older power, but also a symbol for a great modern, uncomfortable truth. Here is the City of London’s official description of the Remembrancer:
“The Remembrancer is one of the City’s four Law Officers and the Office is responsible for the maintenance and protection of the City’s constitution. He is the City’s Parliamentary Agent and the Parliamentary Agent for the Honourable the Irish Society, and the City’s Chief of Protocol. The Office was created in 1571. In its early years it was closely allied to the Monarch and the Court, and this is reflected in some of its functions today which include liaison between the City and the Royal Households. The Office acts as a channel of communication between Parliament and the City. In the contemporary context, this means day to day examination of Parliamentary business including examination of and briefing on proposed legislation and amendments to it, regular liaison with the Select Committees of both Houses and contact with officials in Government departments dealing with Parliamentary Bills. Liaison is also maintained with the City Office in Brussels and other Member States’ permanent representations in relation to draft EU legislation.” (cityoflondon.gov.uk/keycityofficers)
Matters have moved on since 1571, and Parliament has now largely become the obedient creature, the docile servant of the City of London, which exercises its self-interest virtually out of sight of the public. At the same time popular democracy has become largely a public relations exercise (how easily politicians move and recycle themselves in different ways, at different times between politics, the PR business and the City). It is through the operation of the ingeniously self-assembled, but obedient Westminster Cartel, the cosy unspoken consensus of the Political Parties of the Union, and now largely the mere tokens of myriad vested interests, but too rarely ‘the people’, that this disgraceful assault on authentic democracy, and the misrepresentation of power, has been allowed to grow out of control.
The British public is aware of this, and although – save in Scotland – it has not managed yet to effect concerted political action, the electorate has responded in kind: the public does not believe its interests are authentically represented in Westminster any more, and thus large swathes of the public now either do not vote at all, or their vote has simply fragmented (adding UKIP and the Greens as current alternatives in a fracturing party system) towards a tipping point that is beyond the control of the Westminster Cartel.
In our current political arrangements we have a proportionally represented unicameral Scottish Parliament (that still ‘apes’ the conventions of Westminster too much), and in Westminster a bicameral Parliament consisting of a ‘Commons’ that still uses an outmoded FPTP election system; and a Second Chamber best described as a quasi-coelacanth: a living fossil. It is striking that the only current (non-vested) argument for a non-elected Second Chamber that has any traction, is that Westminster is enriched by the presence in certain critical debates, on very important and often difficult, controversial and complex matters, by the presence of “experts”; for example only, geneticists or very distinguished members of the medical profession who bring their knowledge into the public domain over such matters as (say) ’cloning’. I use this one example only for the sake of clarity and brevity. This need for experts however relies entirely on the arbitrary and occasional ennoblement of the appropriate people by politicians on an ‘ad-hoc’ basis, and it establishes a single expert’s authority on the relevant subject in the House of Lords, effectively for life.
Meanwhile the House of Lords appointment norm is the quite breathtakingly cynical appointment-for-life of a mixture of sacked, failed politicians, the crass rewards of patronage (unchanged since Walpole, who “governed by party attachments” in Edmund Burke’s lame excuse) and the almost automatic ennoblement of rich men, whose sole contribution to public life may be lavishly to fund the political parties they choose to support. I shall not plumb the depths of pointlessness by trying to rationalise the continued existence of the hereditary principle in the House of Lords in the 21st century, or explain the needless demand for an over-inflated title more risible than plain ‘Senator’.
I have considerable sympathy for the aspiration to appoint experts, but none for the execution of this aspiration by Governments. I would prefer to observe two quite separate developments.
First, it would be better to recognise powerful but unelected institutions, great forces in our society, who exercise great power over many people whether elected or not, and to some extent at least oblige them to make both their positions and their demands on society or of politicians, public and openly debatable. These institutions should be drawn into the Second Chamber, as a matter of duty. They will be reluctant to speak; but you will find that they will speak, when their real interests are at stake; and perhaps lobbying access to Government should be withheld if they do not do so. And it is as well for the public if that opinion on important public matters is known; for you may be sure that both the opinion, and the influence that may go with it, is being whispered somewhere, is having an effect on your politics and life, somehow. The precedent for a presence of powerful unelected forces is of course not just the history of the ‘three estates’, but is amply demonstrated by the current position of the Remembrancer; who appears to sit in both the Lords and Commons. The current Remembrancer (since 2003) is Paul Double, a former barrister, who, it appears, never gives interviews. He does not speak either, but presumably that is because there is no need for the Remembrancer, nevertheless sufficiently to influence government.
Second, I believe that “expertise” should be recognised and harnessed not randomly, but systematically. I am advocating a Second Chamber that may well have an elected element (I shall leave that issue to one side here for others to debate), but that also draws from an “ex-officio” pool of resources. What do I have in mind? Let me take examples using the brief medical illustration I used above, as a model.
There should be an ex-officio member of the Second Chamber appointed by (for example) the Royal College of Physicians and from the Royal College of Surgeons of England (in Scotland, this would be the Scottish equivalents). Institutions given this ex-officio access to the Second Chamber would appoint their representative from within. I would apply the same principle to the other professions, and to the major universities. I do not pretend that selection of the appropriate institutions is not difficult (by some measure of scale, power or influence), but the broad test should be the impact of the institution on society, and especially in the area it operates (for example the degree to which it is a monopoly), or the nature of the knowledge it possesses. In most, but not all cases, this is not quite as difficult as it may appear. It will require a wide public consensus, but in many cases this can be achieved. Once this is established, this initial cohort of institutions can then build a structure for a fair and open system of both assessment and renewal of membership. It will never be perfect, but nothing in any constitution is perfect.
Perhaps the choice of ex-officio representative in an institution should change with the issue at stake (for example a geneticist on cloning, a cancer specialist on drug supply, demand and pricing). I would also apply the same principle I have suggested in medicine or related fields, to business, commerce and industry; extending membership to – merely as an example -the largest twenty companies of the FTSE-100 (I appreciate this position is intrinsically volatile, so would require regular review, perhaps on a rolling 2 or 5 year cycle, with special arrangements for sudden change). I have not forgotten trade unions (at least the largest); and public sector bodies like the NHS, although public sector bodies (and the Civil Service itself) present special difficulties as they may be managed by Government, directly or indirectly.
Review of ex-officio membership (it should never be in perpetuity) would be undertaken by the Second Chamber as a whole, and perhaps in some cases may be subject to a wider referendum. As time passes I envisage that we will be able to carry out such referenda more incisively with the public, using modern telecommunications media hardware and software.
There are many, many problems with this idea, but it is the very purpose of it that creates the extreme but telling difficulty, and the probable discomfort with this on all sides; it attempts to make what is implicit in our polity, explicit; what is closed in our society, open; what is concealed from public scrutiny, revealed; what is hidden, public. It will not work in every case and it will no doubt create its own conundrums; but that, of course is the unwavering nature of reality. Power is real and it should make us uncomfortable; but its activities should always be in the light, fully in the public eye, for in the immortal words of Lord Acton “Power corrupts”: period.