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Thank Tony for the Constitution

Tony Blair has unwittingly done more to reshape and improve British Democracy than any Prime Minister in the last century. And no, I’m not joking.

A reuctant revolutionary, Blair was never interested in constitutional politics. But he was responsible for setting up the Scottish Parliament and the Welsh Assembly which have transformed the unitary British state by creating rival seats of authority. Now, in spite of himself, he is doing it again with the House of Lords.

Last week, MPs effectively voted to abolish the Upper House as it has existed since the days of Oliver Cromwell, and replace it with an elected chamber. The huge vote for a wholly or largely elected Lords means that the status quo and half way houses are now effectively dead.

It might not feel like it, but this is a great moment
In parliamentary history. British democracy will never be the same again. Handled correctly, Lords reform could leave the British constitution more coherent and better balanced – addressing the anomalies of what the former PM John Major last week called “one-sided devolution”

The Lords will resist its own extinction, of course, and this week will vote down the proposal of an elected chamber. This will provoke a constitutional confrontation with the House of Commons. However, it is a battle the Lords cannot win. Now that the democratic genie is out of the bottle, it will be impossible to put it back.

And we have Tony Blair to thank for its liberation, since it was the scandal over cash-for-peerages that made reform of the House of Lords -inevitable. The system whereby Peers are appointed by the Prime Ministers, has been irretrievably discredited.

Even if there are no prosecutions following the cash-for-honours inquiry (and now that Lord Levy’s chums are saying he is only being pursued because he is a Jew the police may be reluctant to lay charges) the system is widely regarded as corrupt.

The only way to ensure that members of parliament have democratic legitimacy is to submit them to open election There has been much tosh uttered about how election will mean that “mere politicians” will populate the Lords instead of scientists, captains of industry, academics and people of merit.

Would that it were. Where are all these high calibre individuals? Last time I looked along the red benches I saw lots of ex cabinet ministers, former MPs who’d been egregiously loyal, retired civil servants and military top brass. Then there were the cronies, like the PM’s legal chum Lord Falconer, the odd celebrity like Melvyn Bragg and businessmen who have paid large amounts of money to either the Labour Party or the Tories.

If successive governments had indeed filled the Lords with people of merit and intellect who could bring their expertise to bear on the issues of the day, then this argument might stack up. But they haven’t been doing that. The parties have been appointing life peers, not to create independence and diversity, but essentially to preserve their power bases and reward their own people.

The fact that the Lords has been showing commendable independence of mind on civil liberties issues and anti-terror legislation is largely because its members, being older, have fewer career ambitions and less to lose than MPs. They listen more to their consciences than to the party whips.
They would be even more independent if they had a mandate from the people.

But wouldn’t an elected upper house create a parliamentary doppelganger – another elected chamber which would rival the House of Commons? Well, yes hopefully. And what’s wrong with that?

I don’t understand why the separation of powers – the key principle informing the United States constitution – gets such a bad press here. In Washington, the Senate and the House of Representatives are expected to conflict, and to represent different interests. They are often led by different political parties. There is no reason why a similar system of checks and balances should not work here.

It is a question of ensuring that the divisions of responsibility make sense and that the members of the respective houses do indeed represent different interests. . In the USA the Senate essentially represents the different states of the union and are elected on a regional basis – 2 from each state. Elected for six year terms, Senators vet all Presidential appointments, oversee the constitution, treaties and issues of foreign policy.

The Senate also acts as a brake on the excesses of the House of Representatives, which is elected on a population basis and deals with all legislation involving revenue.

Now, that’s not a bad starting point for a new Westminster. It’s not all that different to the present arrangement under which the House of Commons
deals with the day to day legislation and has ultimate power over money bills and the Lords takes the longer view. Election would simply lend these chambers greater authority and legitimacy in performing their different but complementary duties.

And there is good reason for the reformed upper house to take a more territorial perspective. Tony Blair’s other constitutional revolution, devolution, turned Britain into a multinational state, with parliaments in Scotland, Wales and Northern Ireland. English regions like the North East feel left out, even though they rejected the idea of regional parliaments.

What better way to resolve this than to entrench a regional dimension in a new Lords? Turn it into something like the US Senate, elected from the nations and regions. In such a forum, issues like the Barnett Formula and the West Lothian Question could be dealt with.

If the Commons passed English bills on the strength of the votes of Scottish MPs, the legislation could be reviewed in the Senate. England would have a kind of parliament in the form of a bloc of senators in the New Lords. This would be a much better idea than withdrawing voting rights from Scottish MPs in the Commons which would destroy the unitary principle.

The Senate could even be given powers over reserved legislation, to avoid the West Lothian Question-in-reverse. Broadcasting, drugs and abortion come to mind.

Shortly before he died, Donald Dewar called for the Lords to become a revising chamber for the Scottish Parliament.
The late First Minister was worried about the sheer volume of legislation coming out of Holyrood. That some of it might be badly drafted or even contradictory . A regionally-elected Senate would be able to devote time to reviewing Scottish legislation. All Holyrood Acts have to be ratified by Westinster anyway.

A Senate could also be elected under proportional representation. The would temper the inherent unfairness of the first-past-the-post-system in the Commons that gives the PM an artificially inflated majority. Th e Senators should be elected for longer terms, say 7 years, so that they take a longer view.

I don’t want to get carried away by constitutional speculation here. We don’t want the Scottish Parliament to be eclipsed by a new, all-powerful Westminster Senate. But there is clearly a role for an elected upper chamber in the new, improved British constitution. And here is the chance to invent it.

Things have to change anyway, following Tony Blair’s elective dictatorship. Here is Brown’schance to make an early mark on history. A really Big Idea for the man who said that restoring authority to parliament is his priority.

History has a knack of delivering the right thing at the right time for the wrong reasons. The last thing Tony Blair wanted was an elected Lords and a new British constitution. But it looks as if that is what he is going to get.

And it’s all his own work too.

About @iainmacwhirter

I'm a columnist for the Herald. Author of "Road to Referendum" and "Disunited Kingdom". Was a BBC TV and radio presenter for 25 years - "Westminster Live" and "Holyrood Live" mainly. Spent time as columnist for The Observer, Guardian, New Statesman. Former Rector of Edinburgh University. Live in Edinburgh and spend a lot of time in the French Pyrenees. Will that do?


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