Lawyers well placed to lead democratic reform

Congratulations to parliament: on Syria, democracy worked. We should note, however, that David Cameron was not the only one caught by surprise: we all were. As the new political year cranks up, the issue of parliamentary sovereignty will rise up the parties’ agendas. In its name, the lord chancellor promises ‘wholesale changes to human rights laws’ which may include withdrawal from the European Convention on Human Rights. As he well knows, this would probably entail departure from the EU. It might also assist Scotland’s case for independence since Alex Salmond’s SNP does not seem as threatened as the (now almost completely) English Conservative party by international human rights standards. Parliamentary supremacy is not quite as coterminous with democratic sovereignty as its proponents often imply.

You can make a simple test of parliament’s overall democratic legitimacy. Find a foreigner and explain the role, function and justification of the House of Lords. Begin with the admission that it is the second largest parliamentary assembly in the world after China’s National People’s Congress. The US Senate manages with a senate of 100 for a population five times the size of the UK. Both of these examples are, however, distinguished by the fact that they are elected – in America’s case directly and in China’s indirectly.

On the House of Lords, the coalition really owes Ed Miliband. If he had not advanced Doreen Lawrence, the announcement of 30 extra peers in August would have looked even more tawdry than it did. There is some debate about the exact numbers eligible to sit in the Lords but the best guess seems to be 685. Cameron is appointing new members faster than any other prime minister in history and Tony Blair provides some precedent.

The political parties are clearly helpless in any attempt to reform the House of Lords. In government, Labour faced a royal commission report, five government white papers, a select committee report and two ‘indicative’ votes on composition in both chambers, but did zilch. The coalition had a go but got nowhere. There are just too many vested interests. We, the people, need to demand change. And we, the lawyers, are particularly well placed to lead the charge. In a democratic country, there can be no place for an undemocratic legislature. And certainly not one where rather too many of its members have paid for their place through party donations. It is said that the House of Lords is only a revising chamber. It is argued that the standard of its debate is high. But what good is all the eloquence in the world if it has no effect? Look at the fate of the Legal Aid, Sentencing and Punishment of Offenders Act. The opposition had all the arguments and none of the votes.

And, awakened by Syria and the precariousness of coalition, parliament needs to get a grip on the House of Commons. But the usual problem for the mother of parliaments is that, in a different way from the Lords but with the same effect, it is packed with placemen. This is the weakness of parliamentary democracy. It amounts to, in Lord Hailsham’s notorious phrase, ‘elective dictatorship’. The executive dominates the legislature for the lifetime of its government. This is why we need a Human Rights Act as a pragmatic element of a constraining constitution. The notion that a government can claim the right to do anything on which it can get parliamentary majorities is palpably a nonsense. Democracy comes complete with checks and balances – often articulated in the neutral language of the rule of law.

Some 359 MPs out of 650 in the House of Commons are from the two coalition parties. Around 150 of these form the ‘payroll vote’, being either ministers or their parliamentary secretaries. The size of this paid cohort is, understandably, a source of concern more to parties in opposition than government. William Hague set up a committee when Tory party leader that recommended its reduction. The Public Accounts Committee noted in 2010 that we now have virtually double the number of ministers that Lord Salisbury’s government did in 1900 when the British empire was at its height. The committee wanted a reduction. It concentrated on the issue that not all of these ministers had very much to do; but one undoubted side effect (which is why governments like them) is that they mute dissent – or, to put it another way, democracy.

The House of Commons proved its weight on Syria but that does not alter the fact that parliament needs fixing. What better time to address this than when other fundamental constitutional issues are being challenged. Let’s have more Syrian moments when a government has to take seriously the concerns of democracy, human rights and international law.

Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice