Conserving The Evolving Constitution:

An Interview with the Leader of the Opposition in the House of Lords

Lord Strathclyde is currently Leader of the Opposition in the House of Lords. A couple of years ago, the author interviewed Baroness Amos (then Leader of the House of Lords) with a view to finding out more about constitutional developments in Parliament (see Bento. L & Yusuf. G, “A Glance at The House of Lords with Baroness Amos” [2005] Obiter Dicta Spring Issue pp25-29). This article is, if you like, more of a continuation to that interview, though taken from the other side of the political spectrum.

Lucas Bento: What is your opinion on Labour’s House of Lords reforms?

Lord Strathclyde: Very modified rapture. Labour, as Tony Blair himself admitted, never really believed in bringing election to the House of Lords. Their only objective in 1997-9 was to reduce the potential voting strength of Conservatives and independent cross-benchers in order to enable Mr Blair to create enough peers to make Labour the largest party in the house. This he did.

No credible plan for reform was then put forward. Now, after long and relatively constructive discussion, the Straw plan comes some way to meeting the ideas put forward by Conservatives a decade ago, namely that all political members of the House should be elected directly by the people when reform eventually comes.

However, there are many points of difficulty still to be clarified in the Labour plans - how peers should be elected, what would happen to the Blairite "backwoodsmen" who would be left behind after reform, the costs of paying elected peers and so on.

There is a good deal of work to do, but our objective remains that both Houses should be made stronger. The executive is too strong in this country - and Parliament too weak.

Author’s Note: Wouldn’t electing the Lords politicise the chamber and thus undermine its primary role as a somewhat “neutral” revising camera? It is argued that one of the great advantages of the Westminster parliamentary system is the political balance between the relatively inexperienced - yet elected - Commons, and the overwhelmingly experienced - yet undemocratic - Lords. On the other hand, a superficial economic analysis of an elected – and politicised - House of Lords would stimulate competition in Parliament, thus increasing effectiveness and improving efficiency in the political system. Any constitutional imbalance resulting from the politicisation of the Lords would thus be brought back to a constitutional equilibrium, as effectiveness in Parliament ultimately means – one hopes – greater service to citizens and their rights.

Lucas Bento: In your opinion, what is the House of Lord’s role in British politics?

Lord Strathclyde: Few seriously advocate a unicameral system. The haste and arrogance with which governments legislate means that a revising filter needs to be put on ill-thought legislation - and that the Commons sometimes be asked to think again. That is the classic role of the Lords, which it evolved brilliantly in the 20th century after being stripped of parity of powers with the Commons. This goes along with its complementary role to the Commons of holding Ministers to account, providing a forum for debate on matters of national concern and rendering advice to government and nation.

It is a sobering thought that had it not been for the Lords since 1997, among other things, ID cards would now be compulsory, detention without trial would have been introduced (not just for terrorists), sex would have been legalised in every public lavatory, it would have been a crime for a comedian to make a joke about religion, the right to vote in secret at a polling station would have been abolished, the State would have the right to eavesdrop on all private e-conversation and trial by jury would have been restricted.

That in itself makes the case for a strong revising chamber.

Note: Amidst the current financial malaise and the Executive’s inability to prevent or doctor it in any meaningful way, a prophylactic legislative solution to future banking crises may, ultimately, be devised not in the Commons, but in the Lords.

Lucas Bento: What are the constitutional implications of introducing ID cards in the UK?

Lord Strathclyde: This government has forgotten who is the employer and who is the employee in the relationship between government and citizen. Our historic freedoms were unconditional, restricted only by the duty not to break the law or to molest one's fellow citizens. The idea of an "entitlement" card without which a citizen's freedoms are potentially restricted and which gives the State power to log in one central registry and ever expanding record of people's private lives is, to me and millions of others, entirely repugnant.

Try getting your bank to do something without a telephone pin number and imagine the horror of dealing with a faceless State when you are ill, have lost your ID card and need health care.

The lunatic cost of this project should condemn it as ferociously as its constitutional faults. Instead of creating giant computer records of the vast majority of law-abiding people, resources should be concentrated on the areas of risk.

Lucas Bento: What other constitutional reforms would you propose?

Lord Strathclyde: Have we not had a surfeit of constitutional change from "New Labour" that have left confusion behind them right, left and centre? We even now have doubts about the honesty of our voting system thanks to Labour's firestorm of change. The humiliating rejection of John Prescott's "vision" of yet more politicians in regional government showed clearly what people think, given a chance of a say (as we have not had, thanks to the broken Labour and LibDem election promises, on further European integration), about many of these changes.

Britain was proverbial worldwide as a land of liberty with a stable, but evolving constitution. It did not deserve Mr Blair and Mr Brown's schoolboy chemistry set for change.

I think we need to proceed cautiously and not force further change recklessly. But what is clear is that we need action along certain specific lines - to strengthen Parliament and increase government accountability; to check the slide of decision-making away from our country into Europe; to reverse the centralising mania of the Brown-Blair years and give more room to local decision-making and to remember what Labour have forgotten - government is the servant and not the master of individual freedoms.

Note: Are we trying to change our constitution recklessly? It is argued that a constitution must reflect the characteristics of its constituent people. In searching for a new – or reformed – constitution, we ought maybe to firstly ascertain our British identity. We live in a time where British identity is being continuously questioned and reassessed. Perhaps we should set aside our political differences and consider the very fundamentals of what unites us: our Englishness. As a foreign national, I have no locus standi to claim what being English is really like, or what it should ultimately be. However, we all know that the English legal system is obsessed with organic growth in its case law. Indeed, it has a tendency of preserving and relying on the past in order to best shape its present (see stare decisis). Thus, in our unique legal system conservation and evolution go hand in hand. Perhaps our evolving constitution ought to be conserved a little longer, for the risk of changing it too quickly and getting it wrong may throw us into an unexpected and irreversible Orwellian future. The latter, one might argue, will recklessly change our constitution beyond repair.