A commission led by former prime minister Gordon Brown has called for a future Labour government to replace the controversial House of Lords with an elected upper chamber, in a landmark report on reforming the UK’s messy constitution.
Brown was tasked with setting out wide-ranging ideas about the future shape of the UK but this is perhaps the most significant. The House of Lords is currently unelected and still includes 92 hereditary peers – people who inherited their seat through family lineage – years after a pledge to get rid of them.
In a short speech to launch the report, titled A New Britain, Labour leader Keir Starmer said he would set out the details of the reforms he wants to take forward in the party’s next election manifesto. But he immediately stated his commitment to a smaller, democratically elected upper chamber.
Constitutional reform is often dismissed as a distraction from issues that voters care about, such as the economy, health and education. The report tries to overcome this critique by presenting constitutional and economic renewal as intertwined. In this vision, the economy is reformed by redistributing powers away from Westminster.
Crucially, the report acknowledges that a long-term commitment to decentralising power cannot be secured through legal mechanisms alone. Under the UK’s constitution, the legal principle of parliamentary sovereignty means that a future parliament can simply legislate to re-centralise power if it opposes devolution. The country therefore needs political institutions to safeguard the principle of decentralised power.
In Brown’s view, replacing the House of Lords with what he calls an “assembly of nations and regions” is a way to achieve the kind of political consensus needed for a fairer system to flourish. This upper house would serve as the guardian of the constitution and this redistribution of power.
An elected upper house
Brown’s commission urges a future Labour government to replace the House of Lords with an elected second chamber representing the nations and regions of the UK. It stops short of making precise recommendations as to how this should be achieved, instead proposing that Labour hold a consultation on the precise composition of the chamber and process for electing its members.
However, it does imagine the assembly being smaller than the Lords. And it highlights that the Lords is currently significantly larger than other upper chambers around the world.
The assembly would have four key functions, the first of which is essentially the same as its current role: to constructively scrutinise legislation and government policy. But it would also monitor standards of public life and safeguard the constitution and distribution of power.
A constitutional guardian?
To safeguard the constitution and redistribution of power, the assembly would have the power to reject proposed laws which conflict with certain constitutionally significant laws. However, there are some problems that would need to be addressed.
“Constitution statutes” are usually considered different from ordinary statutes because they create rights and institutions or regulate the relationship between different state institutions. For example, the Scotland Act of 1998 is a constitution statute because it created the Scottish government and established its relationship with the Westminster government.
The problem is that beyond some obvious candidates, like the Scotland Act, it’s difficult to determine what is a constitutional statute and therefore part of the UK’s constitution. Constitutional lawyers have long struggled to develop a definitive list. Brown, too, has left his view only vaguely defined.
Another problem is how to decide whether a proposed law conflicts with an existing constitutional statute. The report’s solution is to allow these questions to be referred to the UK supreme court for clarification. This is important as it encourages the assembly and the supreme court to work together to safeguard the constitution and develop a shared understanding of the constitution.
This would work similarly to a process currently used within the devolved legislatures when a proposed law potentially touches on policy matters reserved for Westminster.
The final problem is about the House of Commons’ right to overrule the assembly if it rejects a proposed law, even if a bill might endanger a constitutional statute. The report is unclear about when it would be right for the Commons to do so and in a constitutionally acceptable manner.
Despite these problems, it would still be far more politically difficult than at present for a future government to re-centralise power. The elected assembly would safeguard the redistribution by establishing new political hurdles of its own.
Reasons for caution
The report is very vague on key details about the assembly. The tough question of which electoral system should be used will be left to the consultation. The same goes for how this body will actually represent the nations and regions.
And Labour’s historic approach to constitutional reform casts some doubt over whether these proposals will be implemented. The party is generally economically progressive but constitutionally conservative, to the confusion of many of its own MPs and members. However, there is good reason for Labour’s constitutional conservatism.
Various features of the UK constitution – the absence of a written and entrenched constitution, parliamentary sovereignty, a highly centralised state, the first-past-the-post electoral system and a weak House of Lords – create fertile conditions for governments to pursue radical agendas once in power. It has therefore always been counter-intuitive for Labour governments to get rid of these structures.
Such reforms would only make it harder for future Labour governments to deliver radical economic change. An unelected second chamber is tolerable, so long as it does not seek to substantively frustrate a Labour government.
Much of Brown’s report runs contrary to Labour’s traditional constitutional thinking. A decentralised state, safeguarded by an elected second chamber could threaten a future Labour government if their visions are not aligned. That makes the reform proposals a huge gamble. So we should not be surprised if the promised consultation on the working details of the assembly turns into an excuse to kick these reforms into the long grass.
Robert Greally works for the University of Bristol. He is a member of the Labour Party.