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House Of Lords to overturn referendum?

Over on Facebook, where I occasionally joust with Remainers who are still in shock and anger at the impertinence and evil of their fellows in voting to leave the EU, a person applauded an apparent suggestion that the result could be blocked, by the House of Lords, the upper chamber of the UK political system. I wrote this, and decided I might as well put it on Samizdata as well:

The original post applauded the fact that the House of Lords, which is not elected by anyone, but composed of inheritors and favourites of governments, is to try and block the result of a democratic referendum in which more people voted than in any election since 1992. The enormity of this should give us pause. I find it mind-boggling that it is being contemplated.

The post claimed the referendum is illegal. No grounds are given as to what supposed laws were broken by holding this referendum. None. I’d be grateful if someone could give a law that was broken to justify the claim.

One can argue that the Leave side told lies (the same applies with some of the Remain side, by the way, as they often exaggerated the effects of Leave), but disliking the conduct of those in a referendum does not invalidate the result or render it void. Some Leavers may indeed be bigots, fools, or whatever. Quite a few Remainers are hardly models of logical thought, either, from my experience. If you claim that people voted without full knowledge of the consequences, that could be used to invalidate all elections, and be an excuse for dictatorship of supposed Platonic philosopher kings.

It is quite obvious to me that, when stripped of any flimflam, that a lot of those who wanted to stay in the EU have a low view of most of their fellow citizens, and wish they should be prevented from voting on anything of significance. There are uncertainties ahead; there are also uncertainties of remaining in the EU, particularly given the weak nature of the eurozone and the continued terrible economic and financial problems of Southern Europe.

The House of Lords is an anachronism, but it is at least easier for the UK to reform such a chamber, as it should, than for 28 members of the EU to change the structures of the EU. (I think the HoL should be an elected chamber, maybe by PR, or some other approach.) I think it is good to have an upper chamber to act as a brake on the Commons; all good political systems of ordered liberty need checks and balances. (The US Founding Fathers understood this.) Blocking the results of a referendum, however, is not a step to be taken lightly.

The European Union has been a collection of nation states, but is clearly moving towards full statehood, and the eurozone cannot really work without this to make fiscal transfers, etc, acceptable (consider the rows between Greece and Germany, etc). Such an outcome is not what most Britons want, including, I imagine, some of those who voted Remain. There is no broad mandate for the UK to become part of a European state.

The UK is a parliamentary democracy, and referendums should be used sparingly, and only on matters of overwhelming constitutional importance. The fine details must remain with parliament. The fact remains, however, that the outcome of the referendum, while not overwhelming, is clear enough: Leave.

I may be informed mostly about investment and financial issues in the EU, rather than politics, (I used to be a full-teim political correspondent) but my reporting on the EU and its financial regulations gives me a good vantage point on seeing how the EU works on a daily basis – I have covered the creation of god-knows how many directives over the past 20-plus years (gulps!) and it is clear that despite some good points, it is a centralising, bureaucratic and in too many cases, unaccountable body. It is not, I believe, reformable because too many countries want to keep it as it is. Cameron tried to get concessions and he failed.

49 comments to House Of Lords to overturn referendum?

  • Runcie Balspune

    These sort of maneuvers are designed to reap discord over the referendum result whether realistic or not, by creating uncertainty they hope to destabilize the markets and cause varied financial indicators to wobble, institutions will start to voice their “Plan B” or hold off on the next big step, and some will deflect blame on the result from their own financial mismanagement, and then everyone starts to bemoan the result as a tragedy and how we are all poorer for it. The immediate post-Brexit jitters were caused by Cameron jumping ship within seconds of wiping tears from his eye and putting the onion back in this pocket, then outwardly voicing that we remain rudderless until October, a move torpedoed by May’s speedy coronation, nothing upsets the FTSE like a government that just disappeared up its own arse. I’ve worked in the industry long enough to know that “market instability” can be caused by any minor event from here to China (probably always China), and in fact it is the norm to be variable, most investors make money when the indexes go up and down, but they have to go up and down, not flatline.

    Any semi-serious suggestion that there may be a sudden U-turn will only cause more bumps, so the Remainers can say “we told you so”, personally I’m still holding out for the end of western political civilization as a mark of my respect for the doom-mongers and anti-democracy mob.

  • The fact Reuters is still running article after article blaming everything but the weather on Brexit makes me think the rot runs deep. And I trust Theresa May about as far as I can throw her.

  • Sam Duncan

    I’ve often said that the core, founding, principle of the EU is, “The people can’t be trusted”, knowing full well how that sounds, and expecting accusations of overstatement. Yet now we have its fans saying exactly that all over the media.

    Of course we do. As I keep saying, the restriction of representative government by the enlightened is the whole purpose of the EU. That’s what Monnet set out to achieve, following the lead of the likes of Arthur Salter: a “permanent secretariat of disinterested administrators”, to bind the hands of Europe’s governments and keep their naughty electorates away from the matches and sharp knives. It’s uncanny how closely the stuff being written by remainers right now echoes what these people were saying 80-odd years ago.

    None of this should be any surprise at all.

  • Eric

    Even if you assume they actually have the authority to gum up the works, the House of Lords might not survive such an action, at least not in its current form.

  • Nicholas (Unlicensed Joker!) Gray

    Perry, people often make this statement without backing it up. How far do you think you could throw her? I realise that her guards won’t let you actually throw her, but could you give a rough estimate?

  • Laird

    Having zero expertise with the British political system, I have no idea of the extent of the House of Lords’ authority in this sort of matter. Is there really any legal basis for the claim that it has the power to overturn a vote?

    Having asked that, I note that here in the US, our Supreme Court routinely overturns votes [referenda, actually], such as a state’s approvals of term limits affecting only itself, which it chooses to characterize as “unconstitutional”. Inasmuch as you don’t have a written constitution that might be somewhat easier to accomplish in the UK, but I didn’t understand that to be the HoL’s role.

    But if I may address Johnathan’s dictum about the US congress, the sole legitimate reason for having a bicameral legislature is where those chambers represent entirely different interests. In your case the HoL came into existence was to represent the interests of the aristocracy; in the US the reason for the Senate is to represent the interests of the states qua states, i.e. as sovereign legal entities. With the ratification of our 17th Amendment in 1913, establishing direct popular election of Senators, that rationale vanished. Today the Senate is nothing more than the House of Representatives with longer terms and a larger constituency. There is no reason for it to exist other than sheer momentum; it should be abolished. And the same would be true if you changed your House of Lords to an elected chamber; it would serve no purpose. That would be a dreadful mistake, as the US experience has proven.

  • bobby b

    The Senate ” . . . should be abolished.”

    One small quibble:

    Living in a small, lightly populated state, I place a very high value on the provision that gives us two senators per state, irrespective of population.

    The House is dominated by population centers. Were the House to reign without the tempering of the Senate, every law would favor the huge population centers over the (much much larger) empty wastelands.

    Speaking as an Empty Wastelander, I like the current system.

  • Nicholas (Unlicensed Joker!) Gray

    We Australians have a similar system here. I would prefer the State governments to appoint Senators, like an ambassador to a foreign court. We have the popular vote system, so the center is gathering all power to itself, though slowly. The current pro-business Coalition even offered to give income tax powers back to the states, but they refused.

  • Laird

    I understand your point, bobby b; I live in a smaller state, too. And indeed, that was precisely why the Senate was created: to give small states more of a voice in national affairs. But note the word “states” in that sentence: it refers to states as sovereign entities, not to their populations. The entire balance of the Constitution was destroyed by the idiotic 17th Amendment, and we’re living with the results today. I would prefer to keep the Senate, too, but solely for the original reasons. In other words, repeal the 17th. Otherwise the Senate serves no purpose.

    Anyway, my comment was really addressed to Johnathan’s wish that the House of Lords be converted into an elected body, which I believe would be a terrible mistake. That way lies unfettered democracy.

  • Rich Rostrom

    The 17th Amendment merely made official what was already the practice in most states. They had laws binding the legislature to elect the person chosen by popular vote, either statewide or in the primary of the party controlling the legislature.

    There were some states which did not; in some of these states, legislatures sometimes failed to elect Senators, leaving seats vacant for years at a time.

    As to the Supreme Court (or other Federal courts), they have power to void a referendum or any other state law if it violates the U.S. Constitution. SCotUS struck down term limits on U.S. Senators and Representatives on the grounds that a state cannot add qualifications for those Federal offices to the qualifications established in the Constitution. No Federal Court, AFAIK, has struck down or even questioned term limits established by a state for its own offices.

  • bobby b

    “But note the word “states” in that sentence: it refers to states as sovereign entities, not to their populations.”

    Laird, I understand the theory of what you’re saying. But I confess that I’m too dim to see the practicalities of it.

    There is really no such entity as a sovereign state separate and apart from its citizenry. The “state” – at least in a democracy or a democratic republic – is merely the expressed will of that constituency.

    Pre-17th-A, the legislatures picked the senators, sure – but the voters (who now Post-17th-A vote directly for the senators) elected those state legislators. The point of the original scheme had been to avoid the power of faction – but when one plank of a state legislative candidate’s platform consists of whom they would choose for the Senate, isn’t there the same danger of faction?

  • Reverting the House of Lords to its pre-Blair state would increase the proportion of people from outside the chattering class who get to have a say in things. It would probably also secure a healthy leave majority, at least for any actual vote. (If May wants something to do to reassure her more Tory members, maybe someone could suggest repealing the Blair act to her. It would of course, be done as “a first stage to reforming the house” but with luck the second stage would cause many arguments, take ages to agree, and finally emerge as a PC plan offered to referendum and voted down. 🙂 )

    The referendum was an act of parliament – the European Union Referendum Act 2015 – and went through all the required states in the lords as well as the commons. For the House of Lords to reverse themselves now would be as improper as the commons. I don;t see it happening.

    If the government triggers article 50 as an executive act, parliament, including the Lords, is bypassed. The same kind of people who talk about this post’s absurdity will claim parliamentary sanction is needed, but the government can just ignore them.

  • Jib Halyard

    Referenda have no place in the British constitution. The supremacy of parliament means that Parliament would be well within its rights to ignore the results of any referendum. Whether that would be politically advisable is a whole other question…

  • Stephen K

    I read the Hansard transcript of the first Lords debate on the referendum result. There are a lot of Remainians there and they appeared very upset. But this is all talk, probably – the Lords can’t block this against the will of the Commons, and although there is a lot of loose talk coming from there too, the chances are the Commons won’t dare block it. I know most of the Commons was made up of Remainers, but my feeling is that at least so far as the Tories go, that sentiment was wide but shallow – a lot of it being mere careerism.
    Incidentally I suspect this issue probably comes at least in part from the replacement of the hereditary peers with life peers i.e. replacing gentlemen with cronies.

  • Rob

    Ask these same people what their reaction would have been to the HoL blocking legislation on Gay Marriage.

  • Johnathan Pearce (London)

    Thanks for the comments. Runcie nails it from the start by pointing out that some Remainers appear to be operating a sort of guerrilla campaign to sabotage the exit from the EU and cause as much damage as they can by hyping the risks and underplaying the potential. Of course, some of them may be sincerely worried (although as the late Milton Friedman once said, sincerity is a much over-rated virtue), but others are frankly cowards, unable to face the fact that their view failed to win approval. They probably also realise that attacking the electorate as bigots or fools isn’t going to win them any favours, so another line is to play up the economic turbulence line. Even there, though, I think this is failing. Yes, some indicators of economic performance are weak, but a lot of that cannot be pinned on Brexit. The UK’s enormous debts and still-precarious financial system long pre-date Brexit.

    Laird, as I am not an expert on the US system, I am not fully qualified to pronounce on the parallels or not between the HoL and the US Senate (I am about to start reading Randy Barnett’s new book on the Constitution, and will review it later on this site). What I do notice, judging by referenda in places such as California (the proposition 13 of 1978 being the most famous one, arguably) is that they do have a place in US politics (and open primaries are arguably referenda). I think that within a certain constitutional structure, referenda can be strong indicators of public feeling, and elected representatives should take them seriously, not slavishly. (I understand the old “tyranny of the majority” argument.) The problem for the UK in the EU context is that for years, there have been examples of referenda on major constitutional changes, and countries voted no (France, Ireland, etc) only for the policies objected to being put through into law. Over time, this has mestasised into a broad-based contempt among EU policymakers for the wider European electorate, and this is very dangerous.

    The Founders would have been wary of referendums, I think, but not blankly hostile. After all, the US break with the Crown was, in the round, a popular revolt against an over-weening authority, was it not?

  • bob sykes

    If the House of Lords could overturn the Brexit vote, then it is clear that the Queen could dismiss Parliament indefinitely and rule by dictat.

    As to the US Senate, the most useful reform would be to repeal the 17th Amendment and return selection of Senators to State legislatures. The original intent was to give each State its own representatives in Congress and to prevent domination by popular majority, an absolute evil in the view of the Founding Fathers, and correctly so.

  • Johnathan Pearce (London)

    Bob Sykes, yes, repealing the 17th Amendment would be a good step.

  • Mary Contrary

    @Nicholas Gray:
    My curiosity has been immensely piqued by your statement

    “The current pro-business Coalition even offered to give income tax powers back to the states, but they refused.”

    How could they refuse? If the federal legislature confers on the states the power to raise an income tax, presumably they then have such a power, no consent needed? Whether they choose to exercise that power is another matter. But presumably step 2 in the plan was to reduce the federal grant to the states (I assume there is such a grant?). Was the “refusal” of which you speak just political opposition, or is there something I’m missing?

    I’m also curious as to why they would oppose such an increase in their own powers, but I suspect I can guess at the answer, a desire to continue lobbying the federal government for ever greater subsidies funded from ever higher taxes, in preference to the well-founded fear of tax competition. In other words, a conspiracy against the tax-payer. Am I correct?

  • Nico

    The HoL can’t stop the PM triggering article 50. And since the referendum wasn’t binding there’s no overturning tip do.

    What the HoL could do by “overturning” the referendum is give TM cover for not pulling the trigger on Brexit. However, i think things are a bit too far gone now: TM would surely fall if she acquiesced to staying, and the EU seen to want the UK to finish leaving (and if the UK does not leave it will be treated worse than ever).

    I’m not worried by such remainiac fantasies, not yet.

  • If the HoL decides to defy the will of the People, I suspect they will discover they are the persimmon to the People’s huckleberry. There’s always another Cromwell among the People.

  • Patrick Crozier

    It seems to me that what we are witnessing is the collapse of the Establishment. Everything had been going swimmingly for them until Brexit. At that moment they discovered their usual levers weren’t actually connected to anything. Now, they are leaping around the control room looking for anything, anything that might have an effect: House of Lords, House of Commons, the courts, online petitions. Anything will do. And my guess is that they will all fail.

  • bobby b

    Amendment of the US Constitution is accomplished by what is essentially a nationwide referendum. A properly-followed process could work to completely change our form of government.

    And, in the case of amendment of the national Constitution – as opposed to state-based constitutional amendments – any Supreme Court authority to disapprove would be limited to ensuring that the Constitutionally-mandated process be followed. If the Supreme Court could find no fault with the process, it would have no further power to affect the results.

    Thus, it would be fair to say that the US system has as its highest power the citizenry’s power of referendum.

  • PhilB

    I agree with laird that an elected House of Lords (HoL) would be a mistake of grand proportions.

    My thoughts on a directly elected HoL is that it would approximate extremely closely with the make up of the House of Commons (HoC). It is unlikely that a Labour supporter would vote a conservative leaning HoL candidate and vice versa for a Conservative/Libertarian voter.

    At least when the vast majority of the HoL were hereditary peers, then they acted largely in the interests of the Country, not the current political party in the HoC. Thus excesses and politically motivated mischief were kept in check and, as pointed out, the tyranny of the majority could be mitigated somewhat.

    Nowadays, stuffed full of cronies, self serving ex-politicians and party donors, it is essentially toothless (or at least will vote along party political lines) and useless. See the current controversy about Camerons parting peerage list.

  • Lee Moore

    Here’s my plan for an elected HoL.

    1. You get a vote once you’re 30. It’s a senior electorate
    2. All the hereditaries are put back in
    3. The votes are actually proxies. By some electronic system, you choose to give your proxy to Lord X or Lady Y
    4. You can switch your proxy whenever you like. There are no set dates for elections.
    5. Each Lord gets to vote on legislation with however many proxies he’s got
    6. But I think we’ll set a maximum of say 500,000 to stop anyone from getting too powerful
    7. For admin and procedure it remains one lord one vote; the proxies are just for passing laws
    8. The HoL gets increased blocking powers, details to follow, but broadly you will need HoL approval to pass any liberty-restricting law
    9. And the HoL acquires full and sole responsibility for judicial appointments
    10. Moreover, the Judicial Committee of the HoL will be reconstituted. It will not be able to overturn actual Supreme Court judgements, but it will be able to overturn any precedent set by what it regards as an incorrect SC judgement

    Pros claimed. You can’t have increased blocking powers without votes, and you need increased blocking powers to protect liberty. This vote system is about as far as you can get from one controlled by the political parties. It works as a form of PR, so there’s no pressure to move the HoC off FPTP. You haven’t got the same electorate, you’ve got the grown ups whose traditional role is to say slow down and think about this. The judicial stuff is to ensure that there is someone custoding those Supreme Court custodes.

  • Laird

    Lee’s plan appears to have a lot of merit. Unfortunately we couldn’t adopt something like it in the US because we have nothing equivalent to hereditary peers (in fact, we have a specific Constitutional prohibition against any such thing, in Art.I, §10, cl.1). But viewing the individual states as the functional equivalent of such peers, and repealing the 17th Amendment, would have a somewhat similar effect. And if we coupled that with the elimination of senatorial terms (they would serve at the pleasure of their state, and be removable at will) it would be very close indeed (missing only the disparate “proxy” voting power).

  • Nicholas (Unlicensed Joker!) Gray

    Mary, Canberra started centralising in WW2. Our founders knew that the States had lots of powers when we federated in 1901, but they also expected that Canberra would assume more and more responsibility as Australia grew. We also have a GST (Goods and Services Tax), and the states share in that. They prefer that to income tax.

  • Nicholas (Unlicensed Joker!) Gray

    This gives Britain Two possible names for the future- if Brexit fails, and Scotland and Northern Ireland stay in the EU, then the place could be called the Untied Kingdom.
    Otherwise, you could adopt the name Brexitopia, a safe place for Europeons to escape to.

  • Mary Contrary,

    In other words, a conspiracy against the tax-payer.

    Your guess is absolutely correct.

    The Australian states can continue blaming the Federal Government for financial shortfalls rather than take responsibility for their own finances.

  • Jib Halyard

    @ bob sykes
    “If the House of Lords could overturn the Brexit vote, then it is clear that the Queen could dismiss Parliament indefinitely and rule by dictat.”

    Nope. That question was settled in 1649.

  • Jib Halyard, August 4, 2016 at 6:44 am: “That question was settled in 1649.”

    Nope. The restoration undid 1649 and after. Charles II took the line that those who opposed his father but refused to participate in killing him were forgivable but those who had killed him were not. All that could be located were tried, and either executed or jailed and had to appear in public and say (every year, very fulsomely) that they were very very sorry. (Charles II was a very forgiving chap – but of himself too, it might be said 🙂 – and allowed all who would repent to live, but in jail; arguably he was following Charles I’s last message to him – to forgive his enemies but not to trust them).

    The Glorious Revolution (1688) then made some further changes but emphatically did not restore 1649 or the years following. That has always been wholly unlawful and non-precedenting.

    The monarch may dissolve or prorogue parliament. It is customary that this is done after votes of no confidence or within five years of the last dissolution. In WWII, the custom was suspended; there was no general election between 1935 and 1945.

  • Lee Moore, August 4, 2016 at 1:42 am: Lee’s plan is just the kind of inventive thinking we need. After discussion of this and similar, we might get Blair’s changes reversed (without referendum, since he did not hold one) and then have much discussion of how we should move forward, possibly ending in adoption of Lee’s plan (with or without referendum) or another plan, or a lot of suddenly, nothing happened.

  • Lee Moore

    Niall, you are overlooking one of the cornerstones of the constitution. Constitutional change enacted by the forces of progress, in the interests of the forces of progress, may be enacted unilaterally, without a referendum, to universal applause. Indeed it may be imposed simply by the judgement of the court without any enactment at all. Consitutional change enacted by the forces of reaction, in the interests of the forces of reaction, may not be enacted at all, even with a referendum. Brexit is just such a horrifying constitutional change which is ipso facto diddlo dipso unconstitutional on its face.

  • Jib Halyard

    @Niall Kilmartin

    I stand corrected, thanks. But didn’t the Glorious Revolution basically cement Parliament’s status as supreme power (in right of the Crown)? The Queen may prorogue or dissolve Parliament, but I don’t think she could legally rule by diktat…

  • Jib Halyard, August 4, 2016 at 9:53 am” … but I don’t think she could legally rule by diktat”

    Not for long; some of the finance laws need renewing annually, and FAIK the eighteenth century custom of only passing the mutiny act to last for a year – so the monarch could not dump parliament and stay in command of the military for long – may still be followed.

    (IIRC Natalie once told me of an occasion – back in the days when she had to do with that kind of thing – when renewal of some fairly basic tax-easing or spending power got so close to the line that ministers were sprinting to parliament to hold the division.)

  • Jon

    I like Lee’s idea initially, but when I think about it, the ability to give or remove a proxy would have to be electronic to not be hugely cumbersome, in which case, there ends up being little difference between the legislative parts of the plan (I’m ignoring the judicial bits because they’re less familiar to me) and simply holding an electronic vote on every law, no?

  • Lee Moore


    1. I’ve given the grand plan a full twenty minutes thought, so it’s conceivable that there is scope for tweaking and refinement 🙂

    2. The difference between having proxies and having electronic votes on every law is

    (a) practicality – there are (and should be) three votes on every law, and lots more on amendments as the law goes through its stages. You might have six votes in an evening. You don’t know exactly when each vote is going to happen. You can’t have the whole population sitting up every night with their fingers hovering over the voting button

    (b) the Lords will, or at least may, have read the Bill, or at least a short summary of it, or may have listened to the debate

    ( c) Voter inertia and apathy means that direct democracy, if practised continually, will be won by the most lunatic and committed. Everybody else will miss 95% of votes because they’ll be down the pub. So representative democracy is a better idea

    3. The point of changeable proxies instead of formal elections from time to time is that a voter can choose to be inert, but if there’s something you feel very strongly coming up and your Lord is on the wrong side of the issue, you can flip. Perhaps rather few would go to the trouble of flipping, but the mere possibility will mean that the Lord will be wary of the electorate to some extent. And not just once every five years. Also formal elections tend to have swings against the government simply because people are discontented with the government generally, or even just with their bunions. If switching your proxy is just an individual thing from time to time, it won’t just be a protest vote. That’s not to say that there might not be campaigns from time to time to get mass conversions.

  • bobby b

    “So representative democracy is a better idea.”

    I’m about to be represented by either Hillary Clinton or Donald Trump.

    I think I’d prefer the little constantly-blinking electronic machine on my dining room table nagging me to submit my votes on the day’s bills, thank you.

  • Nicholas (Unlicensed Joker!) Gray

    I keep advocating time-share Democracy! If you choose to be a citizen then you should need to perform some civic duty (volunteer firemen, militia, emergency rescue, etc.) for eleven months of a year, and for one month, 1/12th of the local citizens would be the government of their county. Citizens who impress their peers could be sent to state and national conventions. Long-term citizens could be given the right to speak first. If we make it automatic, then the politicking gets eliminated.

  • Lee Moore

    In reality you’d get bored after a couple of days, and the only people left with their fingers hovering over their electronic voting machines would be the fanatics and revolutionaries. Direct democracy always gives power to the activists, the people for whom la lutta is everything. You want a system where the lumpenvolk’s lack of interest does not prevent their natural and valuable inertia from preventing revolutionary change. ( I intend no insult here – a lack of interest in politics and a desire to spend your time doing something else is entirely commendable.)

    Besides, you’d have a choice of about 1,000 Lords to give your proxy to. Not all of them will be as bad as Trump or Clinton.

  • Alisa

    But Lee, isn’t the same voter inertia going to set in with your proposed plan? Why would potential voters who have lives (as opposed to activists and revolutionaries – on which I entirely take your point, BTW) care more if they are called to vote in the HoL, rather than in an occasional general election/referendum?

  • Lee Moore

    Because they only have to do it once*. For a general election, you have to stir yourself once every four or five years. In the UK roughly 70% of the electorate manages to do so. But with my cunning HoL plan you can choose Lord Thingummy when you’re 30 and never do anything again. But if round your 47th birthday, you get fed up with Lord Thingummy, you can switch your proxy then. Of course if you’re hyperactive you can change your proxy every three months. This gives the hyperactives the advantage of being more flexible, but it doesn’t give them any more votes. Lord Thingummy has still got his proxies, from way back when. In reality the People’s Revolutionary Front folk will not be getting any real advantage because they’ll just be switching their proxies between lunatics anyway.

    We have now stumbled onto some necessary detail, which is – what happens when Lord Thingummy dies ? Options include :

    1. All his proxies are cancelled, and you have to pick a new Lord
    2. Lord Thingummy can bequeath his proxies to another Lord or Lords
    3. Or you get a choice of 1 or 2 when you first give your proxy

    * strictly you don’t ever have to do it. I’m not a compulsory voting person.

  • Laird

    I’m still liking Lee’s plan. If you go back to his original proposal (August 4, 2016 at 1:42 am), item #6 states “But I think we’ll set a maximum of say 500,000 to stop anyone from getting too powerful.” I agree with that (although it leads to a further complication of what to do with any “excess” proxies, and precisely which ones are deemed “excess” if they are to be forced to make a second choice), but think that the opposite side of the issue is important, too: Since the purpose (as I envision it) of having a bicameral legislature in the first place is because those houses represent different constituencies, that of the HoL being primarily the hereditary aristocracy and monarchy, each member of the HoL should have some minimum number of votes, such as 1,000.

    I think we’re stumbling our way to a workable proposal!

  • If you want radical constitutional reform, I suggest that harking back to Samizdata 2006, et seq in the comments, gives a deeper feel. This is entirely appropriate for such constitutional reform, rather than satisfying the irritations of the minute.

    Best regards

  • Paul Marks

    Since the old landed families were kicked out I have seen no point in the House of “Lords”.

    It is just a place where mostly statist politicians go when they can no longer con people into voting for them to be in the House of Commons.

    It should be abolished – New Zealand has no “upper house” and neither should we.

    The present House of “Lords” is an absurd mockery.

    An “elected” one (on a “regional” basis or whatever) would be even worse.

  • Lee Moore

    With great trepidation, I’m going to have to disagree with Paul Marks.

    Whether a second chamber is useful or not, depends on its role, which in turn depends on its powers. A second chamber necessarily has the effect of slowing down legislation. The greater the powers, the more the legislative pipeline will be clogged. The more different the membership of the two chambers, the more the pipeline will be clogged. (Imagine one house elected by men and a second elected by women – would they agree on a lot ?) A clogged legislative pipeline gives more power to the judiciary. Their lawmaking gets overruled less often by the legislature. An obvious illustration is the US Constitution. It’s pretty hard to change – there are lots of barriers to changing it. So when the US Supreme Court chooses to change it by inventing stuff in court cases, their stuff stands. The other effect of a clogged pipeline is that the government tries to use work arounds. If the government could get away with it, and was given a nice shiny Enabling Act, they’d never pass another Act again. They’d do the whole lot by statutory instrument.

    So whether a second chamber is useful depends on the powers given to various actors. How easy is it for the government to bypass Parliament and rule by decree ? How does one deter and / or overrule judicial lawmaking (see my HoL judiciary committee proposal) How much clogging do you want in the legislative pipe ? (I’m being unkind here, I think the HoL does provide, apart from some light clogging, some quite sensible revision and second thoughts on the Commons half baked nonsense.) A second chamber could be bad if the clogging produced rule by decree and a totally politicized judiciary. Or it could be good if the balance was got right. Folk with libertarian leanings shouldn’t be reflexively opposed to some pipeclogging.

    My own cardboard cutout proposal is deliberately intended to be biased. In handing out powers to the two chambers, I wish to distinguish between different types of law – (a) laws that restrict liberty and (b) laws that don’t. I want the second chamber to have strong powers to block or delay (a) laws; and very few powers to block or delay (b) laws. That way political drift works in my favour. And I propose to deal with judicial lawmaking by allowing the HoL judiciary committee to overrule bad precedents (but not overrule the judgments themselves.) I think that would create a disincentive for the Supreme Court to make up law too egregiously.

    FWIW I am a frequent visitor to NZ (indeed that’s where I am now) and I think NZ survives by being rather a conservative country. I don’t mean that they’re not innovative, NZ is very innovative business wise and it’s not particularly backward on the social liberty front. But NZ lefties are quite tame and non lunatic by British, or Aussie standards. The fewer loons in the system, the less the need for ways to stop them enacting their madness. I think NZ also benefits from having lots and lots of small businesses and not many big ones. I think this helps create a climate that is not particularly eager for new regulations.

  • Lee Moore

    Laird – as to the 500,000, I simply suggest that the number of proxies each Lord has, is posted up somewhere, so you can see if your Lord W has 861,458 proxies but is only allowed to vote 500,000. You can then switch your proxy elsewhere. I imagine it’d settle down fairly soon – ie if you like Lord P and he’s got 412,666 proxies and you also like Lady Q and she’s got only 88,414 then you may go for Lady Q to make sure you’re not getting your proxy wasted.

    What certainly wouldn’t be allowed would be Lord W transferring his excess to someone of his choosing. That would defeat the point of a limit.

    As to the 1,000 votes minimum. Yes and No. The No is pure politics. Lord Whosit born in a castle has 1,000 votes and I have only one ! Outrageous. My HoL needs to survive rhetorical assault from the equality puffers. So a Lord can obviously give himself his own proxy, but no bonus. The electorate is in any event different for two reasons – first it’s just over 30s, and second it’s likely to be, over time, a higher percentage of the over thirties than vote in general elections.

    But there is a secret Yes in there too. The proxies only count for voting on legislation, not for admin and procedure. That allows for the possibility of some delay by scheduling etc. Such jiggery pokery can always be overtrumped by the government appointing more Lords, but that’s a bit nuclear and although in the current system it’s often threatened, it’s never actually done. So there’s some procedural wiggle room to slow things down a bit more.

  • Laird

    Lee, I understand that “the No is pure politics”, but I had intended to go against the “equality puffers.” The HoL (or, in the US, the Senate) was designed to be a non-democratic body: in your case, hereditary seats not subject to election; in ours, equal representation of the states, large and small, as sovereign political entities. Both have been thoroughly corrupted by changes which have destroyed the balance of power. By granting the Lords proxies from the hoi polloi, you are injecting a huge element of democracy into that chamber which, in my opinion, is a Very Bad Thing and must have at least a partial offset. Hence my minimum vote proposal. 1,000 is only 0.2% of the (maximum) 500,000 proxies, not a huge figure. But it partially restores the balance, and (in my opinion) would be worth fighting for.

  • Lee Moore

    I think there are about 1,000 Lords, of whom maybe 500 might be prevailed on to turn up regularly. So 500,000 bonus votes. And I guess there’d be about 30 million proxies. So the Lords bonus votes would be less than 2% of the total available. In order to make it a meaningful chunk of votes, you’d have to give them more like 10,000 bonus votes each.

    But while you might have got away with this in 1910, I don’t think it’d fly now.