Christoph Smets: A UK senate: Competition for the Commons or federalising representation? by Constitutional Law Group

 After the warning shot fired from the ballot boxes of the Scottish electorate in this year?s referendum on independence, the West Lothian question has stirred with renewed power. It seems to have triggered a highly unconventional response on the part of the Labour party?s leader, Ed Miliband, who ? as reported by James Hand and Donal Coffey ? has recently promised to abolish the House of Lords altogether and replace it with a senate, should Labour win next May?s general election.

The exact form and composition of such a senate would be decided by a Constitutional Convention, but it appears that, for the moment, the model favours another directly elected chamber, representing regions or counties and cities. This seems odd, considering the House of Commons? primary function: Since voters in the UK do not vote for a party but for a candidate only, who is also only eligible for a single constituency, the voting system in the UK is already aiming to represent not only the people, but the people of a certain city or region (which, in fact, is the House of Commons? historic root). After replacing the second chamber with another elected representative body, now concerned with representing ?towns, cities, regions [and nations]?, the question arises who would have the more legitimate claim to representing the people of any given area: the MP or the MS (Member of Senate)?

A second chamber representing the states (or Lander, in the case of Germany)isn’t all that new to a German legal scholar, and it may be surprising to hear one such criticising plans of regional representation, but there is a difference between the German and the (proposed) British approach, which, at first sight, does not seem to improve democratic legitimacy: whereas the (would-be) future UK Senate would be elected, the German upper chamber, the Bundesrat, represents the federal states themselves and is made up of delegates from the governments of the already existing federal states? parliaments. This fact leaves little room for any doubts as to who is representing the people, and who is not. It is more or less an institutional interest group, de facto representing the interests of the states vis-?-vis central government (which is made up of the same parties holding the majority in Parliament).

Since all UK countries ? barring England (!) ? have their own parliaments, a senate design of this kind could be fitting, but it would necessitate the constitution of a separate English parliament, thus easing the West Lothian question.

Looking at Britain?s European neighbourhood, a middle ground between popular vote and nomination by governments is currently occupied by France, where the S?nat is elected indirectly on the sub-regional level of the d?partments (101 in 27 regions for the whole of France), mostly voted for by members of the even lower level of city parliaments.

Looking at Mr Miliband?s plans in more detail, it would see senators being elected not solely on a regional basis, but would see ?an elected Senate that properly represents the towns, cities, regions and nations that make up the United Kingdom. [?] This regional and national representation will avoid duplicating the constituency link of MPs [?].?

So, Mr Miliband?s senate would mean an amalgamation of both the ?state model? ? as practised in Germany, large parts of Europe and the US (where the term ?senate? most likely is borrowed from) ? as well as a regional model more akin to France. But this kind of mixed design also sends a mixed message: if voting in the UK countries would be based on constituencies it would conflict with the last part of the statement, but if voting in all parts of the UK would be based on regions it would conflict with the former commitment to ?towns, cities, regions and nations?, emphasis added. So, a UK Senate in the proposed form should logically trigger a mixed election procedure: By the UK countries? general electorate for Scotland, Wales and Northern Ireland and by the electorate of certain regions, (towns and cities?) in England. This, however, would neither fit the purpose of regional representation within the UK countries, nor federalisation or devolution for England, but only the lack of English regional representation, perceived by Mr Miliband.

But the weighing of senate models might obstruct the broader picture: It transcends prudent parliament design, devolution and representation, touching on the very core of British government as Her Majesty?s Government, and Britain as a constitutional monarchy. Abolishing the House of Lords also means abolishing peerage (at least as the right to sit in parliament), and in doing so a royal prerogative, by far exceeding the importance even of the Parliament Acts 1911 and 1949. It would mean abolishing a part of British constitutional identity. It is therefore not only prudent, but necessary to see House of Lords? reform as a result of a truly open and transparent dialogue, which cannot ? by its nature ? be at the discretion of any single party.

As a means for guidance, one might consider how any proposed change compares to the road travelled thus far. It has been one determined by a history of Britain?s very own way of government, one that does not do away easily with a time-honoured modus operandi simply because the current situation suggests a change in approach. One might therefore take a look at the institutional roots of ?senates? in the respective countries: Both Germany and the US for instance share a history of having evolved from pre-existing states or principalities, later having been bound together by a supreme power of common government. While at first glance this seems to be exactly the case for the UK as well (albeit with a predominant English role), there is ? in contrast to Germany and the US ? no history of these states themselves being institutionally represented at the central power, what with the historic House of Lords being made up of noblemen mainly representing themselves, not necessarily their regions. As hinted to above, since the split of parliament into an upper and lower House in the times of Edward III., this was actually the task of the House of Commons, but even they did not represent Scotland, Wales and so on, but the shires or counties, of the Kingdom of England (and later of Great Britain and the United Kingdom respectively).

While both in Germany and in the US, states or principalities were caught up in a continuous institutional power struggle with central government, the representation of noblemen (and later -women) in the House of Lords was indiscriminate to the extent that the peers were bound together rather against the Commons (with a friendly working relationship in the last decades) with the dominant constitutional struggle of British modern history being one of parliament (meaning in this case the House of Commons) against king or queen, not principalities against the ruling house of the Kaiser or North vs. South like in the US. While therefore the representation of states both in Germany and the US has always been a matter for ?senates?, in the UK it has mostly ? albeit indirectly ? been accomplished by the House of Commons.

It must thus be argued that the currently favoured senate model with a shift of regional representation from the Commons to a senate is one that does not easily fit the British way of government and its history, at least not in an evolutionary way (that last point also having been made by James Hand and Donal Coffey). But while the last two decades or so of British history have seen highly increased devolution to Scotland, Northern Ireland and Wales, the notion of increased power for the UK countries?, especially for (Northern) Ireland, dates back to the 19th century. So, one might say that there is an evolution towards devolution. That notion entails not only more legislative powers, but elected legislatures: the UK countries have, to a significant extent, already taken regional representation into their own hands. From the English viewpoint, this devolution has come about as diminishing English, in the sense of common British, powers. This ? and the role of England as the historic nucleus of the United Kingdom ? may explain the difference in approach regarding the idea of representing Scotland, Wales and Northern Ireland nationally on the one hand, and England regionally on the other. With devolution still progressing (for instance by proposals to make permanent the Scottish Parliament), the urge to keep the kingdom together is in Mr Milibands model translated into a ?House of regions and nations?, the contradictions of which I have pointed out above.

But if one were to simply adopt another country?s model, thus ignoring British idiosyncrasies, one would not solve questions specific to the past and present developments within the UK. So, a ?State House? model for the UK could have features of both European and British traditions: If the general electorates in England, Scotland, Northern Ireland and Wales were to vote for their own parliaments (which in fact, barring England, they already do), concerned with regional representation, these state parliaments could legitimately and with regional focus deal with problems specific to the respective states? questions and problems. This is also signified by the results of the general elections for Scotland, Wales and Northern Ireland, which turned out seats for members of common British parties as Labour and Conservatives, but also regional parties as Plaid Cymru, SNP, DUP, Sinn F?in and others. The common interests of the United Kingdom could then ? with better focus ? be dealt with by a senate of states? representatives. The German model would see those simply nominated by states? governments (see above), but as there is a British tradition for the House of Lords to be made up by peers belonging to parties, a British ?State House? could see senators being elected by the UK countries? parliaments. This way, there would be democratic legitimation for the senators by way of indirect voting while actually providing the ?clearly defined different role for the Senate? as desired by Mr Miliband. This could also provide an opportunity for a reduced size of the upper chamber, which has been in the debate for quite some time now. A question which cannot be elaborated on here, is that of powers and competencies, which would have to be newly negotiated when introducing such drastic change, keeping in mind for instance that some (e. g. veto) rules have their basis in the historic struggle between the House of Lords with its noble origins and the House of Commons as the democratic force in the narrower sense.

But the centrifugal force of devolution is not only eased by the creation of a ?State House?: Great Britain and Northern Ireland have been and still are united as one kingdom. While further federalisation almost certainly will a trigger a fresh debate on the future of British monarchy, the institution of a common head of state and the way in which this office is executed has ? as evidenced by the development of the Commonwealth of Nations ? an integrating effect. This is especially true for the UK countries, which form the ?homeland? of a monarch still being the head of fourteen states, foremost Australia, Canada and New Zealand.

But if the UK does decides for fundamental constitutional change, the ?State House? model might just work.

Christoph Smets is a Teaching Fellow/Senior Research Assistant at the Heinrich-Heine-University D?sseldorf

Suggested citation: C. Smets, ?A UK senate: Competition for the Commons or federalising representation?? UK Const. L. Blog (1st December 2014) (available at http://ukconstitutionallaw.org)