Reimagining the Constitution: The Brown Commission's Proposal and the Future of the House of Lords
- Russell Tan (Guest Writer)
- Dec 9, 2024
- 6 min read
Updated: May 17
-Edited by Holly Chen, Samuel Lee, and Declan Browne
Preamble
The publication of the Brown Commission’s report in 2022 marked a pivotal moment in the discourse on constitutional reform in the United Kingdom. Its proposals, including the replacement of the House of Lords with an elected second chamber and the entrenchment of key constitutional principles such as devolution conventions, sought to address the structural deficiencies of an uncodified constitution often criticized for its ambiguity and susceptibility to executive overreach. Of note in the report’s proposals was one to allow this new second chamber to ‘entrench’ non-statutory instruments, in effect ‘codifying’ them. However, due to The Sewel Convention carried out in 1998 by the Blair Government, regarding the UK government’s agreement to not ‘legislate with regard to devolved matters without the consent of the devolved legislatures’, the national government would require the consent of the devolved parliaments to facilitate such constitutional change. This article discusses the implications of this proposed competency, and the complications that may arise in its installation.
Introduction
The UK’s constitutional framework rests on a delicate balance of power between its two houses of Parliament – the democratically elected House of Commons, upon which the government of the day is decided, and the appointed peers of the House of Lords. This imbalance lies at the heart of debates surrounding the need for reform, as proposals to recalibrate this relationship seek to address both democratic deficits and the growing centralization of power.
The Brown Commission, or the Labour Commission on the future of the UK, in December of 2022, finalized a report[1] regarding a new second chamber of parliament to replace the House of Lords, regarding the UK constitution and the functioning of the state. Of the suggestions raised by the commission, this article is concerned with those relating to allowing the second chamber to ‘Reject legislation’ relating to any ‘protected constitutional statutes’, the breadth of its scope left to legislation; that, when exercising their power of rejection, the matter must first be referred to the supreme court, which has authoritative power in determining the relativity of the legislation to the supposed ‘protected constitutional statute’; and that if the power were to be used by the chamber, the house of lords would reserve primacy and be able to veto or cancel their power. This article will not discuss in depth the implications of the change in member constituency from appointed peers to elected members, nor the removal of its ability to delay legislation.
In discussing these suggestions, I will attempt to express that the new competency bestowed upon the new second chamber is in fact a fitting and unique way by which Constitutional principles can be reinforced and upheld considering its uncodified nature. However, an adequate series of checks and balances will be required to maintain the equilibrium between the three government bodies, and the proposed changes will certainly need to extend to the executive as well.
It is apparent that the suggested competency of allowing the elected second chamber to reject legislation relating to ‘protected statutes’ would assist greatly in the ‘entrenchment’ of disrespected legal aspects in the constitution[2], most notably those surrounding devolution. One of the outstanding flaws regarding the Westminster Constitution’s uncodified nature is its lack of distinction between significant and less significant or impactful legislation. The Brown Commission handily raises examples in the Sewel Convention[3] and the Constitutional Reform Act 2005[4], identifying them as legislation of ‘genuine constitutional significance for the long term’ next to Parliament acts and other significant pieces of legislation. Empowering the chamber to ‘defend’ such significant legislation potentially enables the immunity of these certain acts and statutes from alteration by legislation passed by the House of Commons, which may be influenced by the government of the day or other factors to alter certain aspects of existing legislation.
As explained before, The Sewel Convention[5], led to the state agreeing not to ‘legislate with regard to devolved matters without the consent of the devolved legislatures’[6], meaning the Scottish Parliament, along with the Welsh and Northern Irish assemblies, would perhaps benefit the greatest from this arrangement considering the implications brought upon by the government’s recent oversteps during Brexit proceedings. The convention typically protects the devolved legislative powers by ensuring that Westminster intervention with the law in a devolved area of competence, altering the legislative competence of a devolved legislature, or altering the executive competence of devolved ministers or departments, will need to take the devolved parliament or assembly into account[7].
Typically, absenting the consent of a devolved power, the government will amend the bills to make the legislation acceptable for the dissenting power. This would in theory ensure that the interests of all devolved powers are met and has been enforced by the devolved legislatures by their writing the convention into law as per the Scotland Act 2016[8] and Wales Act 2017[9]. Despite the supposed importance typically afforded to conventions, it has been ruled by the supreme court that the convention is unenforceable by the judiciary[10], a fact the government of 2020 likely took advantage of, when the European Union Withdrawal Agreement Bill was passed without consent from either of the three devolved legislatures[11]. As such, the commission had suggested the ‘upgrading’ of the Sewel Convention to statutory significance, while bringing in the new second chamber to prevent future changes to the convention.
Having considered the way in which the government of the day has treated with devolved legislatures, the proposed entrenching and strengthening of the Sewel convention, and thereafter its protection by the new second chamber, would prove to be a most progressive step toward productive cooperation between Westminster and the devolved legislatures. Having the second chamber function as a foil that can block incoming legislation from superseding important statutes would serve as a very important and effective means of protection, as by the principle of Parliamentary Sovereignty statutes passed by parliament can only be repealed or affected by another bill passed by parliament.
However, problems arise when considering the suggestions posed by the commission for limitations on their prototype chamber. Though the new chamber would be bestowed with the powerful competency of enshrining legislation, they would lose the Lords’ competency of delaying bills. As established per the 1911 House of Lords Reform Act[12], the former veto power regarding bills sent from the House of Commons possessed by the lords had been reduced to that of a delay of up to 2 years, which still holds credence considering that period encompasses a sizeable fraction of the typical parliament term of 5 years.
Considering the commission’s suggestions of removing this power of the lords to delay bills in favour of solely suggesting amendments, there would technically be no measure in place to restrict the Commons from simply pursuing any legislation they wish to (Aside from those protected by the second chamber’s ability to entrench important legislature). Were the government of the day then to feel so inclined, they might simply bypass the second chamber’s amendments with its supposed House of Commons majority and be able to enact the legislation immediately. The delaying of bills has been a powerful tool for leverage in the battleground that formed Parliament’s floor, and its removal may well tip the balance of powers further into the executive.
Furthermore, such restrictive suggestions as the requirement of a super-majority in the house of commons as well as supreme court supervision when applying the entrenchment defence seem to indicate that the chamber will be unable to move freely in its application of said defence, in spite of the already restricted scope of legislature which it would be able to apply to. Concessions should be made as to the judicial and executive control over this second chamber’s actions, as Parliamentary Sovereignty has always concerned both chambers of the bicameral Westminster parliament indeed.
All told, the Brown report remains as nothing but a window to a Parliament that could be – one that can finally lock down essential satellite legislation and conventions to preserve important rights for its devolved constituent countries, without fear of flippant changes forced upon such instruments on the basis of their legislative status. Governments of the devolved constituent countries must still face that their legislative rights remain at the mercy of Westminster’s whims, for now.
Commission on the UK’s future: ‘A new Britain: Renewing our Democracy and Rebuilding Our Economy’ (Brown Commission, December 2022)
Ibid 140
Ibid 142
Ibid 142
‘Sewel Convention’ (UK Parliament) https://www.parliament.uk/site-information/glossary/sewel-convention/ accessed 12 April 2023
‘Conventions’ (UK Parliament) https://www.parliament.uk/site-information/glossary/conventions/ accessed 12 April 2023
‘Sewel Convention’ (Instituteforgovernment) https://www.instituteforgovernment.org.uk/explainer/sewel-convention accessed 12 April 2023
Scotland Act 2016
Wales Act 2017
R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5 151
1911 House of Lords Reform Act
