Category: Constitutional Law

The Rule of Law and the Colston Four – and why a jury acquittal shows a legal system working and not being undermined

 

The Colston Four defendants have been acquitted by a jury.

Some are contending, like this former cabinet minister, that this acquittal ‘undermines the rule of law’.

That contention is incorrect.

An acquittal is as much an aspect of the rule of law as a conviction.

Criminal courts can acquit as well as convict – both can be the outcomes of the application of due process in a particular case.

The Colston Four were acquitted by a jury – and the defendants did not deny the essential facts.

It can be open to a jury to do this – and this informative Guardian article sets out many other examples.

A jury returning a verdict that they are entitled to return is an example of the law in action, and not of a legal process undermined.

This is not to say that juries are perfect – indeed, many of the greatest miscarriages of justice have come from jury verdicts.

Juries do not always get things right.

But the constitutional importance of juries is not so much for the decisions they make, but for the decisions they take away from others.

The State may arrest, charge and prosecute a person – but they cannot convict and punish a defendant pleading ‘not guilty’ to a serious offence without a jury trial.

The implication of the former cabinet minister’s view quoted above is that it should not be open to a jury to acquit a person prosecuted for a serious offence – but only to convict and punish.

But that is not the ‘rule of law’ – it is something darker and nastier instead.

Others are fretting that the verdict creates a ‘precedent’.

It, of course, does not create any legal precedent – no jury can bind another jury, and each jury should look at the case before them on its own evidence.

Nor does it create any practical precedent – or, at least, not one which has any more force than the many previous examples set out in the Guardian article.

The real upset is that a court heard the evidence and acquitted the defendants.

This is what juries sometimes do – and they can do this because they are outwith the control of the prosecuting State.

One half-expects that this weekend’s press will see ‘government sources’ urging ‘a crackdown’ on ‘perverse’ acquittals – with a proposal for ministers to have a ‘fast track’ on imposing convictions.

And this is not to put an idea into the heads of government ministers – the idea is no doubt already there.

One irony – if that is the correct word – is that this very government sought to use primary legislation to enable ministers to break the law.

That proposal – over which the Advocate General and the Treasury Solicitor resigned (and the recently knighted former Lord Chancellor did not) – did more to undermine the rule of law than any verdict of a Bristol jury.

And the current hyper-partisanship of modern politics means that if, say, a group of fox hunters were acquitted by some shire county jury, the same people who are jeering the Bristol jury would be cheering the shire county jury instead.

But juries are juries – they make mistakes, but they are independent of State prosecutors.

And the noise of government supporters unhappy with a jury decision is the sweet sound of a working constitution.

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The myth of “Not Now” – why a crisis is a good time to change Prime Minister

20th December 2021

One of the defences used to defend against getting rid of the current Prime Minister is that it should not be done in the midst of a crisis.

This view is misconceived.

In 1916, in midst of the Great War, Asquith was replaced with Lloyd George.

In 1940, when things seemed at their worst, Chamberlain was replaced by Churchill.

In both cases, of course, this was because there was an alternative candidate who had the support of opposition members of parliament.

But it has also happened in other situations.

In 1990, during the build up to the Gulf war, Thatcher was replaced by Major – and by the governing party’s own members of parliament, not the opposition.

And indeed, it need not only be an intra-parliamentary affair.

In 1945, when there was no reason to believe the war with Japan would soon end, the British electorate replaced Churchill with Attlee.

And if you go further back, there are many half-forgotten prime ministers who were replaced at times of uncertainty or peril.

So, in historical context, the unusual thing is to retain a prime minister in a crisis rather than not to do so.

This is one of the features – some would say merits – of the flexible nature of the constitution of the United Kingdom (and of Great Britain before 1801).

A Prime Minister can be dumped quickly.

Of course: things are different now.

Any new leader of a political party has to go through a process of being elected (or, if unopposed, approved) by party members.

And there is no real prospect – as with Lloyd George or Churchill – of a politician currently becoming Prime Minister without also being the leader of their party.

So the reason why we cannot just get rid of the current Prime Minister, notwithstanding his inability to do the job, has more to do with the mechanics of party organisation (and, no doubt the leadership ambitions of others) than constitutional practice or historical precedent.

And that is a pity – as both constitutional practice and historical precedent point to a period of uncertainty or of peril as being the best time to get rid of a Prime Minister who is not up to the job.

Indeed, the singular lack of credibility of the current prime Minister in respect of public health and abiding by the rules means that it is imperative that he is replaced with someone who can be taken seriously in imposing public health restrictions.

Instead of ‘not now’ it should be ‘now, of course, now – for when else?’.

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How the Government both won and lost the Priti Patel High Court bullying case

6th December 2021

Today judgment was handed down in the case brought by the civil service union the FDA in respect of the Prime Minister’s determination that the bullying of the Home Secretary had not broken the Ministerial Code.

On the face of it, the government won the case.

And so this is what the press reported (and that is what time-poor news desks have published on their news sites):

But.

There are different ways that a government can win a case like this – and a closer look at the judgment shows that in substance this is not a welcome decision for the government at all.

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First, we need to know what the case was – and was not – about.

The case was not about deciding whether the Home Secretary is a bully or not – that was not what the court was being asked to determine, and the detailed evidence about bullying was not put before the court:

And, as that was not the question before the court, then the hot takes that the court has ‘cleared the Home Secretary of bullying’ are not and cannot be true.

The primary question before the court was whether it was open to the Prime Minister, given the information before him, to determine that there had not been a breach of the Ministerial Code.

The court found that, on this occasion, the determination that there had not been a breach of the Ministerial Code was one of the determinations open to the Prime Minister on the information before him.

But in reaching that conclusion the court made a number of points that were against the government – and these points may be significant in future cases.

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First, the court held that the Prime Minister’s determinations of the ministerial code were, in principle, amenable to judicial review by the courts.

The government made a spirited attempt to argue that the Prime Minister’s determinations of the ministerial code were not ‘justiciable’ – that the very subject matter was a no-go area for the High Court.

The court deal with justiciability in paragraphs 25 to 43 of a 61 paragraph judgment – about a third of the decision.

The court accepted that not every determination of the Code may be judicially reviewed.

And, of course, those judicial reviews which are heard by the court may not succeed (as with this case).

But there is nothing stopping a similar case on different facts succeeding just because of the subject matter.

That the court held that, in principle, prime ministerial determinations of the Ministerial Code are amenable to judicial review is a boon for transparency and accountability.

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Once the court had dismissed the government’s attack on justiciability, it turned to whether the Prime Minister had misdirected himself in applying the Code.

Here the key paragraph of the Code is:

“1.2 Ministers should be professional in all their dealings and treat all those with whom they come into contact with consideration and respect. Working relationships, including with civil servants, ministerial and parliamentary colleagues and parliamentary staff should be proper and appropriate. Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated.”

The information before the Prime Minister was an advice from Sir Alex Allan, the independent adviser on the Code.

His advice included the following:

“My advice is that the Home Secretary has not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect.

“Her approach on occasions has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“To that extent her behaviour has been in breach of the Ministerial Code, even if unintentionally. This conclusion needs to be seen in context. There is no evidence that she was aware of the impact of her behaviour, and no feedback was given to her at the time.”

Having considered this advice, the Prime Minister’s conclusion was:

“Sir Alex’s advice found that the Home Secretary had become – justifiably in many instances – frustrated by the Home Office leadership’s lack of responsiveness and the lack of support she felt in DfID three years ago.

“He also found, however, that the Home Secretary had not always treated her civil servants with the consideration and respect that would be expected, and her approach on occasion has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“He went on to advise, therefore, that the Home Secretary had not consistently met the high standards expected of her under the Ministerial Code. 

“The Prime Minister notes Sir Alex’s advice that many of the concerns now raised were not raised at the time and that the Home Secretary was unaware of the impact that she had.

“He is reassured that the Home Secretary is sorry for inadvertently upsetting those with whom she was working. He is also reassured that relationships, practices and culture in the Home Office are much improved.

“As the arbiter of the code, having considered Sir Alex’s advice and weighing up all the factors, the Prime Minister’s judgement is that the Ministerial code was not breached.”

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The FDA’s claim was that, given Allan’s advice, this was not a conclusion that the Prime Minister could have legally made.

Here paragraph 58 of the judgment is important about the Prime Minister’s conclusions:

In other words: because the Prime Minister did not say Patel was not a bully, it must be that he either accepted Allan’s advice or did not form his own view.

Had the Prime Minister explicitly rejected Allan’s advice that it was bullying then it would have been a different legal situation.

The judgment then goes on in paragraph 59 to the other factors considered by the Prime Minister – it is not a paragraph easy to follow in one go, and may require re-reading:

The essence of the paragraph is in the sentences:

“In that context, the statement that the Prime Minister’s judgement was that the Ministerial Code was not breached is not therefore a finding that the conduct could not be described as bullying.

“Rather, it is either a statement that the Prime Minister does not consider, looking at all the factors involved, that it would be right to record that the Ministerial Code had been breached, or alternatively, that the conduct did not in all the circumstances warrant a sanction such as dismissal as it did not cause the Prime Minister to lose confidence in the minister.”

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The Prime Minister can consider himself very lucky to have won this case.

Once can quite imagine a differently constituted court (or the Court of Appeal) taking a harder view against the Prime Minister

The FDA, in turn, are right to aver the following:

“The High Court has decided:

 – That the prohibition on bullying, discrimination and harassment in the Ministerial Code is justiciable in the Courts.

– That the Prime Minister must correctly apply those concepts when determining complaints against ministers.

– That it is not an excuse for bullying under the Code that a minister does not intend or is not aware of the upset and distress caused by their actions.

“These findings vindicate the claim brought by the FDA and represent a clear rejection of the idea that there are different standards for ministers than for civil servants. The FDA is applying for its full costs of the claim to be paid by the government.

“In an unexpected development, the Court also found that the Prime Minister had not acquitted the Home Secretary of bullying in his decision in November 2020. The Court has held that the Prime Minister must have accepted the advice of Sir Alex Allan that the Home Secretary had engaged in bullying (or at least that he did not reach any concluded view on the matter).”

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Whichever government lawyer drafted the conclusions of the Prime Minister ultimately won this case for the government.

A more clumsily worded statement would have meant that even this court would have decided in favour of the FDA.

The government won – just about.

But now there is a High Court decision holding that determinations of the Ministerial Code are justiciable and that the Prime Minister must act properly in applying the Code to particular cases.

The case was also decided on the bases that the Home Secretary was not exonerated of the allegations and that the lack of intention did not mean it was not bullying.

The FDA must be tempted to have one more heave – and to take this to the Court of Appeal (though there would be a risk that it could lose the gains it has made).

The government is in the harder appeal position – for it can hardly appeal a case which it has ‘won’ and so it is stuck (for now, unless the FDA appeals) with the finding of justiciability and other points made by the court.

So this is a good example of a case which both sides can be seen to have lost – but one in which both sides can also be seen as having won.

And the more significant victory, for transparency and accountability, is that of the FDA.

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Abortion, law and policy – why there needs to be a constitutional amendment

2nd December 2021

The abortion issue is about one ultimate question: who gets to choose?

Is it those who are pregnant?

Or is it those who have control of a legislature or the courtrooms?

From a liberal perspective, the answer is simple.

As far as possible, those who are pregnant should have the choice to decide to terminate or not terminate their pregnancies.

This is because of the principle of autonomy.

But many do not want women to have that choice: they believe it is a choice for others to make, who do not know the woman or her circumstances.

Answering this ultimate question, however, is not enough.

For there is a further question: how should the right of someone to control their own pregnancy be enforced?

In the United States, the Supreme Court in Roe v Wade held that there was a ‘constitutional right’ to an abortion.

The problem with this is that the constitution of the United States does not expressly provide such a right.

It instead has to be read into the constitution by the courts.

And what a court can give, another court can take away.

Another problem is that the reasoning in Roe v Wade is not that compelling – even it arrives at the (morally) right conclusion.

So there is now a case before the Supreme Court where there is a very real chance that Roe v Wade will be severely limited, if not overturned.

This would be an illiberal and unfortunate outcome.

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For nearly fifty years, however, the effect of Roe v Wade has not been converted into an actual constitutional amendment, so as to put the ‘constitutional right’ beyond doubt.

And those opposed to abortion have, step by step, judicial appointment by judicial appointment, increasingly positioned themselves to overturn the decision.

It has been skilfully, deftly done – and in plain sight.

The judicial appointments under presidency of Donald Trump has made the shift irreversible for at least generation.

The only liberal way forward is not to litigate, but to legislate.

The ‘constitutional right’ of a woman to, as far as possible, decide the outcome of her own pregnancy is too important to rest on a flimsy Supreme Court decision, with poor reasoning and relying on a right not expressly set out in the constitution.

And if and when the constitution expressly sets out the right, then the decision as to who gets to decide whether to terminate a pregnancy will be, as afar as possible, back with who it should be.

The mother herself.

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Yes, the quality of the administration of Boris Johnson is poor, but it is also symptom of our constitutional weaknesses

28th November 2021

The primary political problem – and thereby the primary policy problem – with the current government is, of course, the Prime Minister.

As this blog averred two days ago, there is no policy predicament so bad that it cannot be made worse by his intervention.

That the Prime Minister is at the centre of the government’s political and policy problems is well explained today by Adam Bienkov.

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But.

From the constitutionalist perspective, the significance of Boris Johnson’s premiership is not really about him, but about what he can or seeks to get away with.

For Johnson is the politician supreme – an outstanding politician: in obtaining power, in holding on to power, and in evading any responsibility for how he exercises (and does not exercise) his power.

(For those to about to reply demurring from that last proposition, please note that it is not a compliment.)

Johnson is Prime Minister, and his opponents are not.

And Johnson’s premiership is a practical exercise in showing the weaknesses of the constitution – so much so that, like Margaret Thatcher and Tony Blair before him, he is more likely to be brought down by hubris than by any formal constitutional mechanism.

The weaknesses are, for examples, that a Brexit was done but without any proper scrutiny of the the withdrawal agreement; that similarly Covid law and policy has been and continues to be implemented without any proper scrutiny or accountability; that we have weekly shoddy policy making at the highest level leading in turn to weekly u-turns and chaos; that we have a minister of state conducting an erratic and shouty Brexit policy and playing with Northern Ireland’s future without any obvious cabinet interest or concern; and so on.

The manifold manifest failures of the current administration are not just the failures of one arch-politician, they are also systemic and structural.

Different parts of our constitutional arrangements are not doing their job.

And then when we look at how freely Johnson’s government is seeking to frustrate, circumvent or simply abolish any check and balance – from judicial review to the Electoral Commission – then you see further systemic and structural weaknesses.

‘The poor quality of the Johnson administration is not a bug, but a feature’, observes Bienkov correctly.

Yet Johnson’s premiership is, in turn, a symptom of our weak constitutional arrangements.

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At this point in this sort of discussion there will be a Pavlovian reaction that this means that we should have a written (that is codified) constitution.

But that would not necessarily help.

First, given the doctrine of parliamentary supremacy there is no way that a codified constitution can be put in place so that it is safe from easy amendment or repeal.

Second, a codified constitution can be illiberal as well as liberal, and any general code put in place in the current charged authoritarian political environment may well be less welcome than the current situation.

What is needed is not so much a new constitution, but for constitutionalism to be taken seriously.

Constitutionalism is the notion that there are political rules more important than any political expediency.

There are also a range of discrete statutory improvements that can and should be made – such as: dealing with the appointment to the House of Lords, reducing the scope of unscrutinised delegated legislation, placing the remainder of the royal prerogative on a statutory basis, and so on.

Perhaps even electoral reform – though that, like a codified constitution, is not necessarily a liberal panacea.

But, on any basis, the constitution does need to be Johnson-proofed, for the next politician supreme to get almost absolute power in the United Kingdom may not be as sloppy a buffoon as Johnson.

And there is little in the constitution to stop them.

Johnson’s premiership may be dreadful in and of itself, but it also a warning.

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Covid and the accountability gap

24th November 2021

This is just a brief post to set out some general thoughts on Covid and the  accountability of government.

During this pandemic, the government has done and not done various things, and at some point the government should give an account of what it did and did not do (and is doing and not doing).

Because of the sense of emergency, and because information has often been incomplete, it has been difficult to hold the government to account on a real time basis.

The government has put off any formal inquiry until (at least) next year.

And the other means of holding the government to account – the courts, the parliamentary ombudsman, coroners’ inquests, parliamentary committees – all have their limitations and remits.

No doubt there are some politicians in (or previously in) government who want to push any inquiry as far as possible.

They will want to get to the head-shaking, sad-faced lessons learned and benefit of hindsight stage with little or no affect on their political careers.

But as it stands, we are nearly two years into perhaps the single biggest ever peacetime exercise of public policy, and there has been almost no real time public accountability for the various government decisions and actions (and indecisions and inactions).

And so this episode shows the sheer accountability gap in the constitution of the United Kingdom.

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The Moral of the Roller-Skating Christmas Pudding – the Significance of the Absenteeism of the Lord Chancellor

23rd November 2021

The criminal justice system veers between chaos and crisis, if those two extreme states can be distinguished.

To quote the Law Society Gazette:

“The government has admitted that nearly £500m awarded by chancellor Rishi Sunak last month to bring down the Crown court backlog will reduce it by only 7,000 over three years.

“Justice minister James Cartlidge told the House of Commons yesterday that the extra £477m allocated in the Treasury’s spending review last month for the criminal justice system ‘will allow us to reduce Crown court backlogs caused by the pandemic from 60,000 today to an estimated 53,000 by March 2025’.

“According to a National Audit Office report, the Crown court backlog increased by 23% in the year leading up to the pandemic, increasing from 33,290 on 31 March 2019 to 41,045 on 31 March 2020.

“The backlog increased a further 48% since the onset of the pandemic, to 60,692 cases on 30 June 2021.”

The criminal justice system is currently being held together by (ahem) a wig and a prayer.

Last weekend there was the Bar conference, where the Lord Chancellor and Justice Secretary Dominic Raab was invited to address those barristers who are (somehow) keeping the criminal justice system going, along with court officials, solicitors and others.

The Lord Chancellor did not turn up.

His civil servants sent a video recording instead.

It was an extraordinary exercise in political absenteeism.

And where was the Lord Chancellor and Justice Secretary instead of engaging with legal professionals?

The Lord Chancellor and Justice Secretary was with a roller-skating Christmas pudding:

And why was the Lord Chancellor and Justice Secretary with a roller-skating Christmas pudding?

Because he is a politician with a marginal constituency and, on a cost-benefit analysis, it is more politically advantageous for him to be there rather than at the Bar conference.

And, in a way, this a direct outcome of the change in the Lord Chancellorship in 2005, where the office ceased to be exclusive to a senior and experienced lawyer in the House of Lords (and usually their last job) and became just another political job for a politician in a hurry.

The selfie is a perfect exemplar of the choices that now have to be made by any justice secretary, after the 2005 reform opened the office to political careerists.

It was therefore only a matter of time that an occupant of the old office of Lord Chancellor would openly put politics above the legal system when there was a choice to be made.

That said, a Lord Chancellor happily advertising their absenteeism with a selfie with a roller-skating Christmas pudding was perhaps less predictable.

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The ultimate check and balance in the United Kingdom constitution is not what you think it is

21st November 2021

The Sunday press this weekend details how the current prime minister has lost the confidence of his parliamentary party:

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And this news points to the ultimate check and balance of the United Kingdom constitution.

The ultimate check and balance of the United Kingdom constitution is not the electorate, or the courts, or the legislature, or any independent agency.

Still less is it the free press – which tellingly is the only estate of the realm that this government has not sought to abolish, frustrate or circumvent.

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‘You cannot hope to bribe or twist, thank God! the British journalist.

But, seeing what the man will do unbribed, there’s no occasion to.’

Humbert Wolfe, 1930

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Nor is the ultimate check and balance some grand constitutional principle, such as the rule of law, or the supremacy of parliament, or representative democracy.

No – the ultimate check and balance to a prime minister in command of a large parliamentary majority, and thereby with almost total political power, is one of the most ancient of human concepts.

Hubris.

It was hubris that brought down Margaret Thatcher, who thought she was politically invincible she could press on with the community charge (poll tax).

And it was hubris that brought down Tony Blair, who thought that he could do as he wished with foreign policy and Iraq.

Neither Thatcher nor Blair – both of whom won three general elections – were defeated by the electorate.

Nor were either of them brought down by any formal constitutional mechanism, such as impeachment or otherwise.

They were brought down because they got carried away with the almost limitless power they had as prime ministers.

Like some old morality tale, prime ministers obtain near complete power and then get brought down because they are unable to restrain themselves.

And this is what is now happening to Johnson, but in an accelerated version.

At least, if Johnson is brought down, that his nemesis was hubris should appeal to his classicist affectations.

The real worry, of course, is how to check and balance prime ministers who do not get carried away.

We should not have to rely on a politician’s own weaknesses to ensure that abuses and misuses of power are avoided.

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The ‘c’ word – why ‘corruption’ is the accurate word for describing what the United Kingdom government is doing

16th November 2021

Corruption is more a political than a legal term – at least in the law of the United Kingdom.

For instance: there are no current Acts of Parliament with corruption in their title:

In criminal law there is no particular offence of corruption – but instead offences in respect of bribery and misconduct in public office.

Neither of these offences equate with corruption.

Bribery is too narrow – for taking and giving bribes is only a subset of corruption.

And misconduct in public office is too wide – for this umbrella term can cover official misbehaviour that is not necessarily corrupt.

In everyday legal practice the word corruption is now often lumped in with anti-bribery – with the acronym ABC being used to discuss any policies and laws that deal with such wrongful behaviour.

So to talk of corruption, at least in the United Kingdom, is not to speak of anything legally specific.

The word is about politics, not law.

So if you think term corruption should be used to describe the current government of the United Kingdom then it is because it is a better political (than legal) fit than any other term.

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The other common term on offer is sleaze.

This word is widely used perhaps for two reasons.

The first is because it was once an effective word.

As anyone who can remember the 1990s will know, this term once had considerable media and political purchase.

The word sleaze dominated and perhaps changed British politics.

And so perhaps those using the term are hoping that using the word similarly catches the worlds of media and politics alight again.

An attempt to re-live the 1990s.

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“I’m a firestarter, twisted firestarter.”

The Prodigy, 1996

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The second reason for the avoidance of the ‘c’ word is far less commendable.

It is the notion that corruption is what other nations do – and so the avoidance of the word is an example of British exceptionalism.

Here I recommend the @gathara account by Patrick Gathara and his long-running threads that frame the politics of the United Kingdom, Europe and America in the same (condescending) terms that the politics of Africa are often framed by those in the United Kingdom, Europe and America.

The threads make for uncomfortable and telling reading.

(I have seen these threads described as parody, but the thing is that they are not really parody, and perhaps the opposite, for this is exactly the style in which the media and politicians of United Kingdom, Europe and America routinely frame African affairs – it is a house style, not satire.)

*

Corruption, as a word, means debasement.

Think of a corrupted program.

This is more than intended dishonesty – for things can be debased for various reasons.

The general and sustained assault by the British government on a range of institutions and bodies that provide checks and balances is an exercise in debasement.

There is no better word than corruption for what this government is doing to our polity.

For instance: the ultimate problem with the Owen Paterson affair was not so much the paid advocacy – for that had been identified, investigated and decided upon by the relevant committee, and so the system was ‘working’ – but the blatant attempt by the government to use its power to attack the committee and the system generally.

That was the real debasement.

The state of the United Kingdom is being corrupted.

*

Politicians and the media use the words and phrases which they perceive as working in their interests.

And politicians and the media currently see the word sleazy as being expedient.

But they also, it seems, see the word corruption as not being advantageous.

Why would that be?

Perhaps is because to use that ‘c’ word would mean that we finally accept that British exceptionalism is a sham.

For the United Kingdom is a corrupted state too.

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Solving the problem of the House of Lords

13th November 2021

Over at the Financial Times, there is an interesting and informative piece about the hereditary peers in the house of lords.

And the point of the article is compelling: they make no sense.

The hereditary peers, as with the bishops of the established church of just one(!) of the four home nations, have no place in the legislature.

The only possible plausible argument for their presence is that, at least, there are members of that chamber that do not own their place to patronage.

But that is not much of an argument.

The biggest problem about the house of lords is not so much that of personnel but of function.

And unless we work out the proper function of the upper chamber then there can be no consensus on how to replace the hereditary peers and English Anglican bishops and on how to reform the house more generally.

What is the house of lords for?

*

Some may aver that the chamber should have a representative function – perhaps of the home nations or the regions.

(This like the old notion that the house of lords was there to represent the agricultural/landed interests and church interests so as to balance the interests of those represented in the commons.)

Or its membership at least based on being elected by some different configuration than the house of commons.

Like the senate in the United States having two senators per state as opposed to the variable number of representatives per state in the other house of congress.

But this view raises the potential problem of rival mandates, with both houses claiming the legitimacy of the electorate.

In the United States that problem is avoided in part because of tradition, but also because the two houses have some different functions and are elected on separate cycles.

Such a balance would not be easy, at a stroke, to transplant into the United kingdom.

*

Far more important than any representative function is, in my view, to retain and improve the revising and scrutiny role.

Here the house of lords, despite its lack of democratic legitimacy, serves the public interest in legislation often being better than it otherwise would be.

Placing the house of lords on some sort of democratic basis would risk losing this valuable role.

But other than through the patronage of the prime minister and others, how should members of this upper house be appointed?

On one hand they need to have the experience, ability and independence to say ‘no’ to a government so as to force reconsideration (though not to veto completely).

On the other hand, they need to have some legitimacy in a democratic society, and so whoever appoints them must have some direct relationship with the electorate.

Indeed, it may even be that there cannot be any reform of the house of lords until there is prior reform of the over-mighty house of commons.

And that in turn may need electoral reform and so on in an almost innate political regression.

Where would you start?

*

So, back to the immediate question: how do we solve the problem of the house of lords?

There is no obvious solution – at least not one that does not risk losing what is valuable about a revising and scrutinising upper chamber.

And an unchecked house of commons is not an attractive prospect.

Like the crown, the constitutional significance of the house of lords may be not so much what powers it does have, but what powers it prevents others from having.

Getting rid of the hereditary peers and the bishops – although welcome – leaves the more general issue of what the house of lords is for unsolved.

Perhaps there is no practical and immediate solution.

And that is why in 2021 – 110 years after the temporary retention of peers in the 1911 Parliament Act – we still have this odd system.

(Emphasis added.)

Perhaps in another 110 years we will have a solution.

Or perhaps not.

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