Forget reform, go ahead and scrap them

I ONCE knew a Swedish political scientist - a typical, rather humourless old-guard Social Democrat of the sort who ruled Sweden for two generations. He defined Swedish democracy as starting only when they abolished their upper house. Not reformed what they used to have, not altered it to make it more efficient or more defensible in the modern world, but abolished it entirely.

His definition had another element: taking all the monarch's constitutional power away and giving it to the Speaker of that single elected parliamentary chamber. This, in fact, is what the bulk of Old Labour would like to do here.

Abolition of the House of Lords has been an old rallying cry of the Left as long as I've studied politics. Abolition, not reform. There is a strand in democratic theory, egalitarian rather than liberal democratic theory, which holds that nothing should get in the way of the will of the people expressed in general elections. Nothing should exist, not an upper chamber, not a court of law with the power to impose a Bill of Rights, not the need to compromise with a coalition ally, that would stop a disciplined majority Labour Party forcing through anything it wanted, if it ever won power.

This gut reaction - it was hardly a political theory went back to the days when Labour hoped to carry out a huge root and branch reform of the whole of British society so that nothing would ever be the same again. In their hearts, the supporters of this line thought that no one could ever really rationally and honestly vote anything but Labour if only they knew their true interests, and they didn't have to worry about the opposition getting back in and using the same powers.

Of course, Old Labour, in office, never did anything at all about the House of Lords.

They didn't touch it for one very good reason. They thought the electorate, with its sentimental attachment to British history, would never accept abolition, and anything short of abolition was too dangerous. Because that's the irony - there is nothing short of abolition. When you have a political creature as weak, indeed as impotent as the House of Lords, anything but death means, effectively, rebirth.

THIS is the Cabinet's problem - there is no known way of altering the Lords which will not make it more effective, that is, more of a block to the supremacy of a Commons majority. Old Labour didn't really mind leaving the Lords alone, because it wasn't terribly interested in constitutional reform, it had plenty to do along traditional social democratic lines. In fact it was too busy for constitutional reform. Constitutional reform is what parties s u c h a s t h e L i b e r a l Democrats and the Liberals before them worry about because they have no exciting, saleable, substantive policies. Ah - is this beginning to sound familiar? New Labour is interested in constitutional reform because Maybe that's unfair, but it is true that the New Labour Government has real problems with its attraction to constitutional reform, and its main problem is the Labour Party. Everyone in the party can agree that hereditary peers shouldn't have a vote probably everybody in the Conservative Party thinks that as well in private. No one wants to stop having Lords around the place - well, some of the cookier of New Labour do, but that's pure style politics - and most are prepared to go along with tourist attraction tradition.

But that is precisely where agreement stops. You can't just have the current Lords with life peers only, because the only justification for life peers was to even up the playing field in an unreformed House of Lords. So you have to give the Lords something to do, and having given them something to do, you have to decide how to fill the chamber.

The obvious thing would be to give the upper chamber serious revision powers, and to either elect its members, or appoint them in some pretty democratic and representative way. But what politician voluntarily creates a rival body?

Certainly not Old Labour.

The problem runs right through the Government's constitutional reform policies. Most obviously, there is the fight brewing on electoral reform. A goodly number of Labour MPs will lose their jobs given any degree of proportionality in the system, but I doubt one can put the opposition down to sheer job protection.

PR has always involved politicians in a gamble. If you really think you have a chance of winning, at least fairly often, with our existing system, you don't want PR, because it means you'll never win an election again, in the traditional sense of winning undiluted power. Coalition victories, to many, aren't worth the winning. Indeed, you might just as well have a powerful upper chamber if all you're going to get are coalitions. New Labour needn't fear coalitions - it can proba-b l y s t o p t h e L i b e r a l Democrats insisting on very radical policies. Old Labour could never survive PR.

AND there is the Human Rights Bill. Yes, it incorporates the European Convention on Human Rights, but in a fatally flawed way, following the weakest of all available models. All it does is to pick up a Private Member's Bill from the last Parliament in the specially weakened form its author was forced to adopt, against his will, in order to get it through the Lords! It will lead to the ludicrous situation where the judges have to say to a plaintiff that, yes, he is right, the statute does breach his basic human rights, but, sorry, can't touch it, and the law remains good law, wrong though it is. Even given that, the Bill is full of ambiguities, which the Lord Chancellor has gone out of his way not to resolve.

Back when the Lord Chancellor was just Derry Irvine, QC, who everyone knew would be Mr Blair's Lord Chancellor, he published several articles in the law journals firmly putting in their place judges who had the nerve to suggest there might be limits to parliamentary sovereignty. There is some doubt about how "new" the Lord Chancellor's version of Labour is. Certainly he's always seemed a very odd choice for a champion of constitutional reform, and the more input he has to the House of Lords decision, the less likely anything at all clear-cut will emerge.

Those are Labour's problems with reform. Our problem is this.

Constitutional reform isn't like most policy making. You can't do it incrementally, trying a bit of this and a bit of that, taking a bit away next year if it doesn't work, and so on. With constitutional reform you have to get it right first time, and you have to want it to work. Does anyone in the Labour Party actually want constitutional reform to work? Do they actually want an effective upper chamber? Do they actually want a seriously empowered Bill of Rights? Does Labour want to bring about a situation where, next time it wins an election, it can't guarantee to do exactly what it wants?

P Professor David Robertson is Fellow in Politics at St Hugh's College, Oxford. His book Judicial Discretion in the House of Lords is published by OUP in October.

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