The commission chaired for Labour by Gordon Brown reported in December, proposing that the House of Lords should be replaced by an elected ‘Assembly of the Nations and Regions’.
The Brown commission wanted a reformed House of Lords to underpin and strengthen the UK’s territorial settlement. Much of its report was focused on economic inequalities and the benefits of decentralising power, plus a desire to strengthen the Union and discourage separatism. The proposals for the second chamber appeared late in the report, after various proposed reforms to devolution, and were intended to tie the whole system together.
Whether such an Assembly of the Nations and Regions could successfully meet these goals would depend on three things: its functions, its composition, and the practicalities of implementation. Each of these is considered briefly below, in the light of previous Lords reform proposals, and overseas experience.
Functions: meaningful territorial representation in a second chamber
At its core, the idea in the Brown report was far from new. Labour’s 2015 manifesto had promised ‘an elected Senate of the Nations and Regions’ and precisely the same words then appeared in the party’s 2019 manifesto. However neither offered much further detail. In at least a weak sense, all major proposals for elections to the second chamber in the past 25 years could be seen to fit this model – including the plans from the Wakeham Royal Commission of 2000, various Labour proposals between then and 2010 and Nick Clegg’s failed bill of 2011–12 during the Conservative/Liberal Democrat coalition. All of these suggested elections based on large regional/national constituencies, which would reflect the UK’s devolution arrangements.
The Brown report went further than previous proposals in considering possible territorially focused functions for such a chamber. It suggested new roles: to oversee intergovernmental bodies within the UK, monitor regional economic inequalities and scrutinise a new category of local legislation, alongside ‘safeguarding the UK constitution’ – comprising enhanced powers over a defined set of constitutional statutes. The last of these proposals, for constitutional entrenchment, has since been fairly thoroughly discussed elsewhere.
The UK’s specific devolution arrangements present significant challenges to a second chamber fulfilling territorial functions (as well as to its composition – below). The legislatures in Scotland, Wales and Northern Ireland all have different powers and responsibilities. Meanwhile, some areas of England have city/region mayors, but others have no devolved level of government at all. Bringing representatives of all these areas together in a second chamber would therefore be very different from the more ‘one size fits all’ model that exists in many other second chambers, particularly in federal states. If the second chamber is to discuss the impact of UK-level decision making on devolved matters, these substantially differ area by area. In addition, the UK lacks ‘shared’ competencies between Westminster and the devolved nations, of a kind more common in other systems. This leaves questions about which new matters members of a second chamber of the nations and regions might fruitfully discuss, and how.
But these rather unique characteristics of the UK are not the only obstacle to meaningful territorial representation in a second chamber. While many second chambers ostensibly exist to perform this role, complaints that they fail to do so are extremely common – leading one expert to suggest that they are ‘structurally unable to become effective fora for subnational participation in the national decision-making process’. In countries such as Australia, directly elected senators are often criticised for primarily representing their political parties rather than their states. Even where second chamber members are indirectly elected by members of subnational legislatures, similar complaints often apply.
The most effective territorial second chamber is probably the German Bundesrat, whose members are themselves members of state governments, but that is difficult to replicate. Even the indirectly elected South African second chamber, whose design was influenced by the Bundesrat, including through requiring members to vote in provincial (rather than party) blocks, has been accused of failing in its territorial role. Where territorial second chambers exist, intergovernmental co-ordination nonetheless tends to operate through forums that are completely separate from them. Hence overseas experience suggests that – at the very least – questions of functions and procedure would need careful consideration in designing a genuinely territorial second chamber.
An additional obstacle is separatism: separatist parties have resisted strengthening the territorial roles of second chambers in countries such as Canada and Spain. In the UK, the SNP likewise has little interest in strengthening the Union. Not all key players can therefore be expected to try and make a meaningful second chamber of the nations and regions work.
Composition: electing a second chamber of the nations and regions
While the Brown report went further than previous proposals in considering new functions for a territorial second chamber, it was far less detailed than they were on questions of composition. The report stated that the new body ‘should be markedly smaller than the present Lords, [and] chosen on a different electoral cycle’, but added that ‘the precise composition and method of election [are] matters for consultation’. While not formally a recommendation, it indicated that the second chamber might have around 200 members.
Yet it is the detail of composition that has often scuppered previous proposals. There are many important matters to be resolved before a second chamber of the nations and regions could be put into effect.
Past proposals have all suggested that the boundaries for election to a reformed second chamber should be nine large English regions, plus Northern Ireland, Scotland and Wales. When the Royal Commission reported this made obvious sense, as Labour originally intended to move to elected regional government based on these areas. But its plans collapsed following defeat of proposals for a north-east regional assembly in a referendum in 2004. Until Brexit these same areas were used for European Parliament elections, but their administrative purpose has largely now expired. In England, it would clearly be difficult to map electoral boundaries for a second chamber onto existing devolved structures. And while the Brown report espoused future English devolution, it was deliberately non-prescriptive regarding boundaries, meaning such developments may take a long time.
Previous proposals have generally agreed that the electoral system for the second chamber should be proportional, based on region-wide constituencies – which would create complementarity with the House of Commons, and likely ensure that no single party enjoyed a majority in the second chamber. Options include ‘open’ or ‘closed’ lists, or the single transferable vote (STV) system. The Brown report says nothing on this, but decisions would clearly be necessary.
The division of seats between areas is a tricky question. This has been little debated previously, with a general assumption that seats would be distributed based on population. But in many territorial second chambers elsewhere this is not the case – e.g. the Australian Senate and US Senate both allocate equal numbers of seats per state, irrespective of population, while Germany uses a compromise between this and population. A calculation in 2000 estimated that while equality in a 240-seat chamber for the UK would give 20 seats to each of 12 areas, a division by population would give Northern Ireland just six, Wales 12 and Scotland 21, versus 32 for the south-east of England and 29 for London. Equality of seats in second chambers is intended to ensure that less populous areas cannot be so easily outvoted as in the first chamber. Even equality might offer relatively little assurance to the smaller nations. But a population-based allocation of seats could see London and the south-east of England collectively far outweighing Northern Ireland, Scotland and Wales put together.
The electoral cycle and terms of office are very important issues, which have received substantial attention previously. To avoid clashes of mandate between the chamber and the House of Commons virtually all packages over the past 25 years have proposed staggered elections so that not all second chamber members are elected at once. This pattern is extremely common overseas, resulting in senators serving longer terms of office than members of the lower chamber. Most previous packages have favoured election in thirds for non-renewable terms of 12–15 years. The Brown report did not consider this question.
The report also differed significantly from most previous proposals in terms of the size of the chamber. Earlier packages have generally recommended 400–600 members – which would ensure meaningful proportionality at each election, particularly if the chamber were elected in parts. There are also obvious questions regarding the chamber’s functioning if it had as few as 200 members, including the proportion who would serve on the frontbench, and the ability to maintain existing valued committees.
Previous proposals for elections to the second chamber have also mostly suggested retaining some appointed members. This could allow continuation of a substantial non-party expert element, while protecting against claims that the second chamber has greater electoral legitimacy than the House of Commons. The Royal Commission’s proposals, Labour’s white papers of 2001, 2007 and 2008, and the Clegg proposals all proposed reserving 20% of seats for appointed independents. The Brown commission was clearly split on this point, with a footnote indicating that one member favoured retaining some appointed members.
Another way to dilute the democratic legitimacy of a reform chamber, as well as strengthening its territorial basis, would be the inclusion of indirectly elected members. The Brown report hinted that this might be desirable. But it would be difficult: with no obvious bodies from which to draw members throughout most of England, and members of devolved legislatures being fully occupied, mostly at a significant distance from Westminster.
It is striking that on various of these points previous proposals had reached consistent conclusions, which differ from those of Brown.
Practicalities of implementation
The Brown proposals were explicitly presented for consultation, and the above discussion shows that there is much detail still to consider.
If the purpose of a second chamber of the nations and regions is to bind the devolution settlement together, engagement with key figures from beyond Westminster, particularly at the devolved level, is clearly essential. Consultation should also meaningfully engage the public, ideally through deliberative exercises such as citizens’ assemblies. Given that the Brown proposals sit within wider ambitions to develop the UK’s devolution arrangements, consultation would need to dovetail with that wider consultation. But this is clearly a major undertaking.
It will always be difficult for a party in opposition to run a satisfactory consultation, given lack of resources and the fact that other actors may not be sufficiently motivated to engage. Governments, meanwhile, have access to appropriate resources, and may attract some co-operation even from political opponents once it is clear that plans are likely to be put into effect. So while Labour can usefully begin discussions about the details of a radically reformed second chamber now, it seems inevitable that these will need to continue if and when the party enters power.
All of this makes it unlikely that concrete action on the ambitious Brown proposals could be taken before the second or third year of a Labour government.
First published by the Constitution Unit at UCL. This post previews Meg Russell’s report, House of Lords Reform: Navigating the Obstacles, to be jointly published by the Constitution Unit, Institute for Government and Bennett Institute for Public Policy.
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