Constitutional Reform in the UK

A new centre-left government in the UK will provide a long-delayed opportunity for constitutional reform consistent with social and political renewal in the UK

The party manifesto for the labour party expected to form the new government this month gives a cautious welcome to constitutional change in the UK. One attraction of constitutional and institutional renewal is that it avoids tax and spend debates. Costs are modest. The areas where changes should be pressed are as follows:
 
A new Second Chamber
 
The most obvious target for reform is the Second Chamber (the House of Lords) where the labour manifesto indicates the need for a more representative body. It does not state what kind of representative body a labour government would like to see and its pledge to remove hereditary peers and to introduce a mandatory retirement age of 80 are minimum steps.
 
The most easily justified change would be to abolish the Chamber as it is and replace it with a body composed of regional and local representatives from across England and the rest of the UK. Whether they should be elected directly or chosen indirectly from elected local and regional authorities is a secondary question. Election fatigue would argue in favour of indirect selection. Such a change is long overdue. It separates a social rewards system from political representation. It gets rid of the rewards to political cronies, the quasi corruption and elitism of the present system. Political obscurity for the existing 785 members of the House of Lords is long overdue.
 
Intergenerational representation
 
A reformed second chamber to better represent opinion outside the London metropolitan area does not in itself address another main shortcoming of Westminster representation as it is – that representation is biased towards elderly males. The cure lies mainly in party selection procedures. The labour party manifesto commits to a lowering of the voting age to 16–17-year-olds. However, this does little to address the need for representative chambers that better reflect age, gender, ethnicity, and intergenerational burdens. 
 
One possibility to make up for the lacunae in representation would be to establish a standing independent expert committee reporting to the House of Commons on the intergenerational aspects of government policies ranging from care policies for the elderly to support for 1–5-year-olds. It would be modelled on the independent Budget Responsibility Committee and report to the House on a regular basis and whenever proposed government legislation requires an independent check. A major task would be to check on which generation is paying for Green measures and how the costs and benefits stack up across generations.
 
Regulatory oversight
 
Regulation has become a major tool of modern government. Unfortunately, the complexity of a plethora of sectoral, independent and semi-independent departmental bodies means that the system is intelligible only to experts. The Labour party manifesto calls for a nationalised clean power authority. This however leaves most of the regulatory world untouched. The day of the sector regulator is over and needs to be replaced by a platform model.
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Regulators stand in for citizens as consumers so as to help ensure adequate channels for comment on draft proposals and for the redress of complaints and grievances. However, for most people the system is bureaucratic, difficult to understand and to deal with. Borderline unethical practices remain widespread from aviation to domestic heating and consumer redress difficult. 
 
Currently, oversight in respect of the structure and performance of the regulatory world depends mainly on the work and priorities of House of Commons committees. There is a need for a standing committee of the House of Commons to provide for permanent oversight over the regulatory world as a whole and to champion the citizen rather than the ministers and departments off-loading their problems and sector regulators looking for an easy life with those they regulate. 
 
The rights ecosystem
 
In the UK’s intercultural society, the judiciary has come to play a bigger role in the settling of disputes in relation to electoral politics. A large part of this has come from the assertion of ‘rights’. 
 
There is no settled relationship between the role of the law and the role of politics. There is however a concern about ‘judicialization’. Rights have distributional consequences and there is a concern that claims about rights do not give attention to the question of ‘who pays’. In addition, rights NGOs, rights lawyers, and courts themselves have a shared interest in growing their own roles. There is no ‘off’ button to the multiplication of ever narrower claims.
 
One possibility is for the judiciary itself to tighten the requirements before a rights claim is accepted for hearing, onward referral and appeal. This also applies to the need for more stringent requirements before referrals are allowable to the European Court of Justice. English courts should rightly pay attention to the evolution of rights law in relevant jurisdictions outside the UK, including Europe, the US and the Commonwealth. In addition, the English judiciary wants to remain part of the wider European rights ecosystem through the ECHR. However, its self -interest in making referrals to the ECHR does not make for good law on matters that could be decided domestically and biases the wider international perspective. 
 
In addition to tightening referral procedures and narrowing appeal possibilities another possibility is for the reformed Second Chamber to provide specific oversight over the handling of rights claims. When the costs and distributional consequences of awards are added up there is a need for local voices to be heard. Opinions of a reformed chamber on the substance of claims should themselves be taken into account by the judiciary.
 
The revolving door
 
One consequence of long periods of one-party government at Westminster, regardless of whether labour or conservative, is that an unsavoury relationship develops between politicians, businesses and regulation. Outright corruption may be rare but many relationships do not pass the ‘smell’ test. 
 
The Labour party manifesto calls for a new Ethics and Integrity committee and a ban on MPs taking second jobs and consultancies. The problem however is more deeply rooted and there is a need to tighten defences against the revolving door and the 24/7 escalator between politics and business. Increased transparency is the standard prescription. However, among more specific steps that should be considered are term limits on those holding executive or Board responsibilities in the regulatory world. Separately, a minimum 3 year ‘cooling off’ period could be enforced between the holding of any electoral office and paid remuneration in the private sector or regulatory world.
 
Electoral reform
 
Electoral reform is a hardy annual among constitutional reformers. The first-past-the-post, winner-take-all system does not encourage compromise among political opponents or the inclusion of the views of those not part of the majority. Nor does it help establish lines to the views of those who feel Westminster does not represent them.
 
The greater use of referendums can be seen as one safety valve against the dominance of Westminster elites. Among the lessons of the Brexit referendum are the need for the ground to be prepared and set out prior to calling the referendum and for super-majorities to be required for particularly consequential decisions such as Brexit or re-entry themselves. There will be a larger role for the independent electoral commission in ensuring that information is available on the choices facing the electorate and the estimated consequences of votes as well as in establishing voting thresholds required for approval. 
 
Last, but not least, a symbolic departure from Britain’s medieval institutional legacy would be for the appointment of the Head of State to require some kind of assent procedure from the House of Commons or the two Chambers combined.