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Andrew Lilico: Why Conservatives should oppose all current options on Lords reform

Lilico_andrew Dr Andrew Lilico is Managing Director of Europe Economics, a member of the IEA/Sunday Times Shadow Monetary Policy Committee, and author of more than forty articles, pamphlets and reports on political and economic questions.  Andrew submitted this article before last night's Commons vote to have a 100% elected Lords.

Yesterday, Theresa May posted an article entitled 'Why we are the democrats and Labour are the reactionaries'.  She has three propositions to offer:

  1. It is good that MPs are to have a free vote;
  2. It would be best if the second chamber were democratic; and
  3. The Labour cabinet represents the forces of conservatism on this issue.

She is quite wrong on the first two points, but, alas!, not wholly wrong on the third.

Considering the issues in turn, first, Conservatives (along with MPs of other parties) are to have a free vote.  But does this make any sense at all?  How could it be that on such a vital constitutional question as how our second chamber is to be made up, we have no party line?  Surely we should have some vision of what the British constitution is to supposed to be directed at, what the institutions are that should make it up, what the powers are to be of those institutions, and how those institutions are to be made up?  If we have no line on these sort of matters, on what basis are we formulating other policy?

Taking the most fundamental of these, if, as a party, we do not have a view on what politics is supposed to directed at — is it ordered liberty, personal liberty, collective order, collective honour, British sovereign power, justice, social justice (Rawlsian or otherwise), or something else? — if we do not have a view on something as basic as that, how is the public supposed to have any idea of what our general political programme is trying to achieve, or (to put matters differently) what underlying long-term values it will attempt to preserve whilst achieving passing short-term goals.

It shouldn’t be difficult, really!  Burke set us our goal in his original writings on conservatism — the promotion of ordered liberty.  Perhaps that’s not what we are in favour of any more?  Well, then, what alternative underlying goal are we in favour of?

If we still understand ordered liberty as the proper goal of a constitution and sine qua non of specific policy, then this must have implications for the nature of our constitutional arrangements.  To be sure, Conservatives might disagree about exactly what constitutional arrangements are best, as we disagree about what public sector reforms are best, but we cannot pretend that we do not have a view qua Conservatives!

I shall offer you my view.  It’s not the only possible line, but I cannot see how one could defend having no collective line at all.

In my view, the proper realm of democratic policy is money bills. Anything to do with how the state raises and spends its taxes, or regulates the nation’s commerce, should fall under the supreme authority of the democratic chamber.  This includes taxes, benefits, the organisation of the NHS and of schools, working conditions regulations, the charters for regulators such as Ofcom and the FSA, and other such policy areas.  In these areas, the Commons should be supreme.  Indeed, I see no need for a second chamber to look at such measures at all.  If a revising process is required, that would be better delivered through a robust Select Committee process and through serious consideration before the Third Reading in the Commons.

Outside of money bills, I do not believe that a democratic chamber is well-constituted for supremacy — i.e. I do not believe that the democratic chamber should be able to enforce its will over that of other institutions.  If the democratic chamber voted to re-nationalise the British coal industry, readers of this web-site would doubtless regard that as a mistake, but I presume most of us would shrug and say “Well, if that’s what people voted for…”  On the other hand, if the democratic chamber voted to round up all the country’s Jews and place them in detention centres, we would not so shrug.  In such a case the fact that that’s what most people voted for does not seem to be enough.

Stated more generally, there is a class of laws — those pertaining to ordered liberty — that are not simply matters of political taste, such that we want them amended when the public wills it.  Because of this, we need constitutional mechanisms that allow us to prevent the democratic chamber from amending such laws.  One way to do this would be by having a list of the relevant measures placed in some constitutional document — like a Bill of Rights — that would be more difficult to amend.  But systems of this sort, in which the crucial liberties are explicitly set out, are well-known to suffer from a significant flaw: we are not able to produce a comprehensive list of all possible encroachments on ordered liberty.  Partly for this reason, the traditional British approach has (at least up until the Human Rights Act) preferred not to rely on such a list (and indeed the Human Rights Act is not, in principle, any more difficult to amend than any other legislation).

If we do not rely on a constitutional document to preserve ordered liberty, instead we might employ institutional arrangements that can interpret the particular circumstances and protect ordered liberty in the specific case.  These might include a constitutional monarch, an independent judiciary interpreting the law with very wide discretion and an appeal to natural justice and traditional liberties, and (crucially for our present purposes) a chamber of the legislature that is not itself subject to democratic pressure and yet has the power to block illiberal measures.

This takes us to why Ms May is wrong on her second point.  Insofar as the House of Lords would be made more subject to democratic pressure through reform (e.g. through have elected members), it would become more unsuited to fulfilling its vital constitutional role.
That is not to say that it is currently well-suited.  The current system is one of overwhelming political patronage, and thus democratic pressure is already far too great.  In that sense the removal of the hereditary element was clearly retrograde — this is not to say that the use of the traditional hereditaries was the only way to design a second chamber that could fulfil this blocking role.  But we should understand that the aspiration should have been to offer something in the stead of hereditaries that would perform that role better, rather than something “seen” to be more “legitimate” — which appears to have been the urgent goal of recent years.  Thus, although in a sense Ms May is right in that the Labour cabinet appears (alas!) to understand, better than the Conservative hierarchy, the dangers of an elected second chamber, and so oppose it, their own solutions are only a little better.  A fully-appointed chamber would only be a little less subject to democratic pressures than an elected one.  That isn’t the way forward, either.

And we should note that the dangers of removing the positive blockage provided by a non-democratic second chamber are not merely a theoretical discussion, or one with impacts only in the far future.  It is by no means a coincidence that the discrediting of the Lords on non-money bills following John Major’s notorious decision to enact the Parliament Act to force through the War Crimes bill there were various ill-judged illiberal (and often incoherent) measures during the mid-1990s, and again after the emasculation of the Lords under Blair, the many authoritarian measures introduced subsequently.  (I emphasize that this is not because of some grand conspiracy — it is the natural tendency of a democratic chamber to enact illiberal and incoherent laws in this area, which is part of the reason why constitutional blockages should exist.)

So, the Lords must not be elected at all, neither should it be overwhelmingly appointed via political patronage.  This leaves the question of how it should be made up, to which I do have an answer, but I have already written enough for now.  All I shall say now is that one can only hope that at some stage in the Parliamentary process all the current, deeply flawed, proposals are defeated…


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