The right to vote
How can the Mother of all Parliaments have a legislative chamber that is not fully elected?
The anointed prime minister, Gordon Brown, has suggested that Britain should have a written constitution that would codify the nation's political procedures and enshrine its commitment to the rights of the individual.
Everyone proclaims a commitment to human rights, but in Britain the vision of which rights a human being should enjoy remains opaque. For example, Americans are bemused by the British debate over the House of Lords, and not merely because of the bizarre British attachment to medieval titles: how can the Mother of all Parliaments even consider having a legislative chamber that is not fully elected?
Voting is arguably the most basic of human rights. Article 3 of Protocol 1 to the European Convention on Human Rights (ECHR), which Britain signed up to nine years ago, requires that signatory states "undertake to hold free elections . . . which will ensure the free expression of the opinion of the people in the choice of the legislature". The second chamber of Britain's legislature is the Lords.
A legal challenge to an appointment system might well succeed. Rather than depend on judicial fiat, however, it would be more satisfactory if Britain reached its own decision, perhaps by looking at the practice of others.
The cross-party working group on Lords reform, chaired by Jack Straw, recently analysed alternative models and issued a report. The composition of the ten-member group was striking - five sitting MPs, five members of the Lords (counting the Bishop of Chelmsford) and nobody else. This is akin to debating the reform or abolition of the monarchy, but limiting the committee to members of the Windsor family and the aristocracy.
There are some striking omissions. Nowhere is it mentioned that the people have a legal and moral right to elect their legislators. The bravest suggestion is that the House should be partially elected, as there is an "expectation that in a modern parliament the second chamber should have a degree of democratic legitimacy". Only a "degree"?
The report makes some assumptions that are simply bizarre. In an era when officials mouth platitudes about the need to be inclusive to persecuted Muslims, there is unquestioning acceptance that a certain number of members should belong to the clergy and that all 26 should be from the Church of England.
The report worries that, if Britain allowed elections, it would be "impossible to see how representation of the Church of England could continue". Perhaps the writers should query the goal, rather than suggest that Britain cannot trust her citizens with too many rights.
The overwhelming majority of European countries recognise the right of their citizens to vote; 23 have elected legislative chambers.
This leaves a rump minority of just four countries, including - to date - Britain. In Slovenia, the argument was made that certain groups need appointed legislators in the upper chamber to protect their interests. For reasons best known to themselves, the Irish constitute their second chamber in a similar way.
One other European country still enjoys a relic of feudalism that is particularly difficult to justify: in Belgium, ten appointed senators must be descendants of the royal family.
Thomas Jefferson said it best 187 years ago, as the United States adopted a system that was extraordinarily advanced for the age: "I know of no safe depository of the ultimate powers of the society but the people themselves. And if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education."
There is a legitimate debate over how citizens should exercise their right to vote, from first-past-the-post to proportional representation. But there can surely be no sensible debate over whether citizens should vote. That is a human right.
Clive Stafford Smith is legal director of Reprieve, http://www.reprieve.org.uk, a UK charity that provides front-line investigation and legal representation to prisoners denied justice by powerful governments across the world, from death row to Guantanamo Bay. Contact Reprieve at firstname.lastname@example.org, or Reprieve, PO Box 52742, London EC4P 4WS. Tel: 020 7353 4640