The tactics and strategy of upper house reform

In the UK, the government is negotiating the tricky waters of upper house reform. To this end it’s letting many of the details be decided by a joint committee of both houses in an effort to persuade peers and MPs to accept the overall aims of such reforms. In Canada, the government is also attempting to reform the upper chamber, albeit in a less comprehensive way due to the difficulty of getting a constitutional amendment through. The Conservative party of Canada has been trying to get their Senate reform bill through for quite a while during its period of minority government, but has now published a bill which is currently going through second reading in the House of Commons.

In terms of strategy, both governments have gone for different styles. Canada’s government knows that it cannot get full upper house reform because the provinces simply will not vote for the change to the constitution, and it’s quite possible that the majority-Conservative Senate wouldn’t vote for it either. Instead, they have gone for a bill with incremental reforms: term limits for newly appointed Senators (though quite how legally binding they would be is questionable) and advisory elections organised by the provinces who would produce people the prime minister *could* appoint (again, there’s no guarantee he would have to appoint the winners of the elections because for that you would have to change the constitution). There seems to be real effort behind these reforms, and it is quite possible that Stephen Harper, formerly of the Reform Party (a predecessor party to the current Conservatives), is a true believer in an elected Senate but equally knows that he can’t get the whole way.

In the UK, the reluctant David Cameron is being urged to pursue upper house reform by his coalition partner, Nick Clegg, who sees it as part of a quid-pro-quo in return for the Conservatives getting boundary reforms through when they come to a vote in 2013 – aides say it is 20 days of debate to guarantee Lib Dem representation (in the upper house) in return for 20 seats to guarantee better Conservative representation (in the lower house). Now, whether that will even happen (would a Lords that has just been overruled on its own composition by the Commons vote for such a thing?) but because Nick Clegg needs a victory for his Liberal Democrats, he hasn’t chosen incremental reform. Instead, he wants a ‘big bang’ reform which guarantees an 80% elected upper house, where 20% is elected every five years and hence reforms will be complete by 2025. Despite having been advised that these controversial reforms have never succeeded in the past, Nick Clegg is convinced he needs to push forward.

Tactics-wise, the Conservative government in Canada has recently restocked its numbers in the upper house, filling seven vacant seats. Their majority in the upper house is now 5 Senators, with another three vacancies waiting to be filled. It’s still unclear if the Senate reform bills will clear the upper house over the opposition of both the Liberals and some Conservatives, though the size of the malcontents isn’t known. The government did negotiate with senators over the length of terms (with some Senators favouring twelve-year terms and the government favouring eight-year ones and the final bill now uses nine-year terms). There doesn’t appear to be any significant opposition in the Commons’ Conservative caucus so if it is to be defeated, it looks likely to fall in the Senate either by direct vote or, less likely because of the time limits on Senators speeches, by being talked out.

The British government’s tactics include the said joint committee which shall recommend various changes to the bill which the government has said it will seriously listen to. The bill is still yet to go through Cabinet, with some reports claiming that the Conservatives have already extracted a concession where each parliament will have to vote to increase the proportion of elected members of the upper chamber. The bill may not pass the Commons, with Labour overwhelming opposed (perhaps half out of principle, half out of opportunism) and the Conservatives split with many objecting to the very idea of an elected upper chamber. Instead of voting the bill down directly, the apparently organised resistance to reform may try a reenactment of 1969* after voting down the programming motion and any time allocation or closure motion the government moves, because without that MPs can talk for as long as they want. If the bill gets to the Lords, it will almost certainly not be passed in a way acceptable to Nick Clegg if it is passed at all (there are no time allocation or programming motions in the Lords at all), though the government can then try to pass the bill again in the House of Commons in the following session and overrule the Lords using the Parliament Act.

The Canadian example seems to me to be more likely to succeed, although much depends on how rebellious the Conservative Senators choose to be. Trying to pass a bill encompassing a large controversial reform is inherently more dangerous and less likely to bear fruit given the widespread opposition that exists.

UPDATE: As of Monday 20th of February, it appears a group of 20 Conservative peers has told the Leader of the House of Lords that they will refuse to back any government bills next session if Lords reform goes ahead, and more are considering their position. As the article notes, the arithmetic of the Lords means that if forty Conservative peers join this group, business will become very difficult (with most if not all cross-benchers having to back the government for a vote to be won), and if many more join then it’s game over for that session. No bills will be passed, providing the rebels stay their course. This raises the stakes somewhat – all the legislation the government wants next session would have to be passed using the Parliament Acts in the 2013-14 session, which takes up valuable legislative time and political will. MPs will have to vote for them all over again.

UPDATE #2: A busy week, it turns out! On Wednesday, there were reports that more than eighty-one Tory MPs are opposed to Lords reform, enough to kill the legislation if Labour overwhelmingly votes against. In response to the growing opposition, the prime minister’s father-in-law Viscount Astor has put forward proposals to mollify the rebels by limiting the House of Lords reforms to 20% elected with the intention to do more at a later date and get all the front benches behind it in the Commons. The government would then send the bill to the Lords and at the first sign of delaying the bill or wrecking the legislative agenda, would stop consideration of the bill and use the Parliament Acts. That, of course, is the opposite of the softly-softly approach the government has had so far, but isn’t too surprising given that the arms race between those opposed to Lords reform and the government was hotting up. The Astor plan is almost guaranteed to not get cross-party support, but it’s too early to tell if it will either squash dissent within the party or cow the Lords into submission. Or even if Cameron will take up the idea.

UPDATE #3: On the 29th of February, we learnt that Labour has not yet finalised its position on any Lords reform bill. Apparently their senior leadership don’t want to be seen as the party who voted down Lords reform, so they might support the bill through the Commons (potentially neutralising any Tory rebellion in the Commons if only a few Labourites rebel) leaving it to be destroyed in the Lords. What they would do during ping-pong or the attempted use of the Parliament Acts is anyone’s guess, but although they don’t want the Liberal Democrats to score this win, they also don’t want to foment distrust between Labour and Liberal Democrats for any future alliance that they might have.

*Where the then-Lords reform bill was talked out by the left and the right.
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