ARTHUR: I am your king!
OLD WOMAN: Well, I didn't vote for you.
ARTHUR: You don't vote for kings.
OLD WOMAN: Well, how did you become king, then?
ARTHUR: The Lady of the Lake, her arm clad in the purest shimmering samite, held Excalibur aloft from the bosom of the water to signify by Divine Providence ... that I, Arthur, was to carry Excalibur ... That is why I am your king!
(from screenplay of Monty Python and the Holy Grail, 1974)
Is there anybody as conservative as an English constitutional lawyer? I doubt it. The framers of the US constitution called themselves “We, the people of the United States” in 1787. The framers of the Australian constitution did the same in 1900. But English lawyers still cling on to a structure labelled “parliamentary sovereignty”, which is about as secure as a river bridge in Workington.
I started work on my new book What’s wrong with the British Constitution? in 2000. What got me going was a prime example of English insularity and English conservatism: the Report of the (Wakeham) Royal Commission on the House of Lords. Wakeham, a former Conservative chief whip, was commissioned by Labour Prime Minister Tony Blair to shut down the dangerous notion of an elected upper house. Labour, said Blair in a 1996 lecture that has mysteriously disappeared from the Web, has always favoured an elected upper house. Oh no it hasn’t. An elected upper house might endanger the supremacy of the Commons. The prospect of elective dictatorship has always seemed attractive when you expect to be one of the elected dictators. Therefore many of Labour’s most radical leaders, including Clement Attlee, Nye Bevan, and Tony Blair, have been conservative when it comes to Lords reform.
Wakeham did as he was expected. The Royal Commission thought that a few peers might be elected but that most should not be. It proposed that 16 Church of England bishops should stay, to be joined by ten other Christian representatives and five representatives of non-Christian faiths. It said that that the bishops in the Lords had always been a force for tolerance and diversity.
I turned to the debates on Welsh disestablishment and Irish Home Rule before World War I. Hansard told me, as I had expected, that the Church of England bishops in the Lords voted against both of these almost to a man, although the first was nobody’s business but the Welsh and the second was primarily the business of the Irish. In both cases, the overwhelming majority of MPs from the territory in question had demanded these reforms since any substantial number of people had got the vote. Wakeham was as casually ignorant of Scotland. Nobody who knew the first thing about the theology of the Church of Scotland can have expected it to want representation in Parliament. In Reformed theology, the role of the civil magistrate is to protect the church, not to govern it. The Church of Scotland had told Wakeham that they did not seek Parliamentary representation. So had the Catholics, so had the Baptists: all three for good reasons. Wakeham totally ignored the evidence before him.
Why get so worked up about church and state, when fewer and fewer people are religious? Precisely because fewer and fewer people are religious, the claims of religion for special representation in the British constitution are more and more anomalous. But Wakeham’s ignorance of Scotland pointed me to something bigger: that English commentators forget (if they ever knew) that Great Britain exists by virtue of a treaty: the 1707 Treaty of Union between England and Scotland, later ratified in the last Acts of their Parliaments to create the new Parliament of Great Britain.
The Treaty and Acts show the fallacy of deriving Parliamentary sovereignty from the mists of English history. The English Parliament came to end in 1707. The great ideologue of Parliamentary sovereignty, Professor A. V. Dicey (1835-1922), insists that ‘Parliament means, in the mouth of a lawyer … the King; the House of Lords, and the House of Commons.’ It is this tripartite Parliament that is and ought to be sovereign.
But this ignores the revolutions of 1640-60 and 1688-9, when Convention Parliaments, sitting without a king because there was none, chose a king and set the line of royal succession. In 1689, the Scots chose the same king as the English, but did not commit to the same line of successors. So King Arthur’s reply to the old woman should have been: “You become king by being the oldest son of the previous king, whose ancestor was selected by the two Convention Parliaments of 1688-9”.
A head of state should be a universally respected figure who can protect the state at times of grave crisis. The last constitutional crisis in the UK started with the Lords’ rejection of the 1909 Budget exactly 100 years ago, on 30 November 1909. It continued until spring 1914, when it culminated in two revolutionary acts: a contingent mutiny of cavalry officers at the Curragh, near Dublin, and the import of 30,000 German rifles and 3 million ammunition rounds to Larne to arm the Protestant paramilitary Ulster Volunteer Force. In my book I show how this coup d’état was actively assisted by Professor Dicey and by Opposition leader Bonar Law, who may have financed the gun-running. King George V was also an ardent Unionist who seriously contemplated dismissing his Liberal government.
The coup plotters said they had the will of the people on their side. There is no good evidence for this. For instance, the by-election trends show that in August 1914 the Liberals and allies were on course for a fourth consecutive General Election victory.
I draw two lessons from this. First, that if the main ideologue of parliamentary sovereignty abandoned it as soon as the elected house tried to enact something he disliked, why should anyone else sustain it? Second, that although there are good grounds for supporting checks and balances on the elective dictatorship of the Commons, the checkers and balancers need to have democratic authority. The two unelected houses had none between 1909 and 1914. Nor do they now. The composition of the Lords changed fundamentally in 1999, when most of the hereditary peers were ejected. A house which had been unbrokenly Conservative since 1832 turned into one where no party had a majority. But it remains unelected. In recent weeks, the Conservatives have started to focus on likely Lords’ opposition to their promised bill to repeal the Human Rights Act if they form the next UK government. Some of them are talking of creating Conservative peers to get repeal through. This would be 1832 and 1911 all over again, when the same threat was issued. And, as then, to be effective it would have to be a massive creation – one which would return the House to the single-party Conservative predominance that it held from 1832 to 1999.
As a legal doctrine, Parliamentary sovereignty still has defenders. They say that decisions should be taken by elected politicians, not by unelected judges. Fine: but elected politicians means elected politicians. All three houses of Parliament must be elected for it to have the legitimacy that Parliamentary sovereigntists take for granted. Electing a non-executive head of state is easy. The Irish and German Constitutions contain rules that could easily be copied.
The commonest objection to an elected Lords is that they would be “clones of the clowns in the Commons” (thanks to Lord Howe of Aberavon for that lapidary phrase). But that danger is easy to avoid. A Conservative committee under former Lord Chancellor Lord Mackay of Clashfern pointed the way some years ago. Building on the Mackay report, my book proposes the following. The elected Senators should sit for a single, non-renewable term of perhaps three parliaments. A third of the house would be elected at each election, from large constituencies (maybe the UK’s 12 standard regions) by proportional representation. Nobody would be eligible to move directly from either house to the other – there would be perhaps five years before anyone who had served in one house became eligible to serve in the other. Senators thus elected would not be clones of anybody in the Commons. Elected by PR, they would not disproportionately come from one side; but on average the Commons would always be the more recently elected house, and could claim supremacy on that basis. Senators would be immune to threats from their party whips because the sanction of the whip is to deny reselection and they would not be reselected anyhow. The quarantine rules would deter people who really wanted to be career politicians from running for the Senate; and would bar retired or dismissed MPs from immediate service there.
In the 2009 Queens Speech, the Labour government seemed to be thinking along these lines. The Downing Street website points to a little-noticed parliamentary statement by Jack Straw in July 2009, in which he endorsed the Mackay (or McLean) model. The Conservative and Liberal Democrat parties called for an elected upper house in their 2005 manifestoes. Labour did not, but Gordon Brown has now signalled his support for it. And the House of Commons has voted for an all-elected, or alternatively for an 80 per cent elected, upper house. As the UK approaches the General Election that must take place before June 2010, it is up to the people to see if they can, or wish to, create a “We the People” moment as in the USA in 1787 or Australia in 1900.
If they did, they would be catching up, not only with the Americans and the Australians, but with some of the officers of Oliver Cromwell’s army. In 1647, the ‘Levellers’ drafted An Agreement of the People, which was the basis for the now-famous Putney debates between them and their more conservative leaders. Heading number 4 of An Agreement runs:
That the power of this and all future representatives of this nation is inferior only to theirs who choose them, and doth extend, without the consent or concurrence of any other person or persons, to the enacting, altering, and repealing of laws; to the erecting and abolishing of offices and courts; to the appointing, removing, and calling to account magistrates and officers of all degrees; to the making war and peace; to the treating with foreign states; and generally, to whatsoever is not expressly or impliedly reserved by the represented to themselves.
The ensuing Putney debates are most famous for the declaration by Thomas Rainborough that “the poorest hee that is in England hath a life to live as the greatest hee”. I think Thomas Rainborough had a clearer idea of democratic constitutionalism than did A. V. Dicey.