Revision Update: Parliament: House of Lords

THE HOUSE OF LORDSReform of the House of Lords (HoL) continues to be an on-going saga in British constitutional reform. With Labour’s reforms in 1999 which ended the right of most of the hereditary peers to sit in the House, and with promise of stage II to be delivered in the imminent feature, it was reasonable to assume that there would be some sort of closure to this long outstanding issue. Since then however, no progress what so ever has been made.The government proposed a second chamber that would be:a. 80 directly electedb. Serve a 15 year term with a third elected every 5 yearsc. Represent regionsd. The number of peers to be reduced from 826 to 450e. The number of church of England bishops would be reduced to 12 from 26f. The remaining hereditary peers would be removed

WHY HAS REFORM OF THE HOUSE OF LORDS BEEN SO DIFFICULT TO COMPLETE?

1. Politicians fear an elected second chamber. This may seem a strange reason to cite as one of the principal reasons as to why the HoL is still to be reformed when all the political parties declared their commitment to an elected second chamber in their election manifestos for the 2010 general election, however, it is clear an elected second chamber could represent a threat to the power of the government.

One only has to think of the debate surrounding electoral reform to see how the self-interest of elected politicians can override logical debate. The arguments in favour of electoral reform were embraced by Labour whilst suffering successive electoral defeats to the Conservatives in four elections between 1979 and 1997. Once elected with a massive majority of 179 in 1997 and 167 in 2001, their enthusiasm for reform rapidly evaporated and the Jenkins Report which supported the hybrid system[1] of AV+ was conveniently ignored. The same analysis can be applied to an elected second chamber.

The Conservative party favour constitutional reform when it suits them, as is the case with the proposed reforms to constituency boundaries, and oppose it when it does not. This explains their opposition to electoral reform and HOL reform.

The present crop of MPs would rather have unfettered power than run the risk of having to seek agreement and compromise with a chamber which may have a different political outlook to the HoC.

2. An elected second chamber could result in gridlock. Elections would provide the House of Lords with as good a mandate from the people as that claimed by the House of Commons (HoC). An elected second chamber could claim be to have as much legitimacy as the House of Commons and consequently demand as much of a say on parliamentary bills as that enjoyed by the HoC.

Consequently as argued by Lord Pannick QC, “a largely elected second chamber will almost certainly be much more assertive than the unelected House of Lords and reluctant to give way”. In the United States, the differing party compositions between the House and the Senate explain the failure to come up with effective remedies to issues such as the fiscal cliff and gun control. This gridlock has created a paralysis in government and an elected second chamber could leave the UK with a government which could not govern. [2]

3. There is no agreement on what the second chamber should be comprised of. If one agrees that the second chamber is to be directly elected, the fundamental question that needs to be addressed is what system should be used to elect it? This draws us into the issue of the purpose of a second chamber. A key function in any bicameral[3]arrangement is that the two chambers should be able to check each other. This will result in more democratic and consensual agreements with regard to legislation, that has been viewed from many perspectives. In order to achieve these goals it is imperative that the two chambers differ in their composition.

No purpose would be served if the HoL was to be elected using First Past the Post with elections being held at the same time as a general election to the HoC. Such a procedure would likely result in the HoL being a mirror image of the HoC. The party that won a majority in the HoC would likely win a similar majority in the HoL and consequently, the notion that the second chamber could offer a different perspective and check the HoC, would simply not apply in such circumstances.

Consequently, there is a strong argument for the use of an alternative system. A proportional system, such as regional party lists with voting to be completed at the same time as European Parliament elections might present a relatively obvious possible method of election. This however raises the spectre of not only a newly empowered second chamber due to its elected nature but one which might have a radically different party composition to that of the HoC. The Liberal Democrats would have an even more critical role to play as the number of seats (based upon the 2010 election) might be in the region of 20% or so. Not only that, minority parties such as the UKIP and BNP could gain representation in parliament for the first time as they have in the European Parliament.[4]

The use of a proportional system for the HoL would also undermine FPTP as used in HoC general elections. If PR is to be used for the HoL, shouldn’t it be used for the HoC?[5]

4. There is no problem with the work of the HoL as it stands. In many respects Labour only completed the easy part of the HoL problem when they abolished the right of the hereditary peers to sit in the Lords. The difficult issue of was always going to be what should replace them.

One of the reasons why the HoL was unreformed for so long was due to the fact that nobody really criticised the work that they did and nor did they threaten the will of the democratically elected government. By chance, rather than by design, and through evolutionary gradual change, the HoL has become a valued chamber in the legislative process. This was not due to its ability to check the HoC. The constitutional crisis of the 1909 People’s budget had resulted in the 1911 Parliament Act which ended the ability of the HoL to frustrate the will of the elected chamber and this was further reinforced by the Parliament Act of 1949. [6]

Consequently the HoL became a revising chamber. Its primary task was to make suggested amendments to legislation that came from the HoC, critically though, the HoC was free to ignore these suggestions. Consequently the HoL did not pose a threat to the democratic will of the people. The government in the HoC could always prevail and impose their will over the HoL should they so choose. This last such instance the HoL invoked the Parliament Acts was in 2004 over the Hunting Act which banned hunting with hounds. This though is a relatively rare occurrence as only seven pieces of legislation have needed use of these acts in order to be passed.

This reflects the fact that most of the suggested amendments made by the HoL are well received by the government. There is recognition that the HoL do have something to offer. The fact that party politics does not play too great a role, that legislative proposals may have been rushed the HoC and that the HoL offers a degree of expertise lacking in the HoC, all explain why their suggestions are not rejected without due thought. Indeed as rough estimate, the government is said to accept proposals from the HoL or to amend policies to suit the Lords most of the time.

The key argument here may well be summarised as whilst the composition of the HoL has been a cause for democratic concern, its work has not. Given the problems of reforming its composition as outlined earlier, the old adage of “If it ain’t broke, don’t fix it” would seem to be a fairly apt assessment of the need for further reform.

5. There is no enthusiasm for reform amongst the public. Polls do indicate that the public are in favour of an elected second chamber but the fact is they are not that concerned about it. In the middle of a recession with government cuts about to it, the public do not regard HoL reform as a salient issue. This allows politicians not to promote a measure that could potentially weaken their power and influence as mentioned earlier.

6. There has been no constitutional crisis to act as a catalyst for reform. As mentioned earlier, the 1911 Parliament Act followed one of the greatest challenges to government in the history of the UK when the unelected privileged second chamber dared to threaten the supremacy of the democratically elected first chamber. It took the threat of the creation of 500 new hereditary peers by the monarch of the time, George V, for the Lords to crumble and acquiesce to the loss of their veto powers.

Today, there has not been any circumstance where the Lords have been drawn into a similar debate. The inbuilt Conservative bias that used to incur the wrath of Labour governments due to the predominance of hereditary peers effective ceased to be an issue with the following reforms:

a. The 1949 Parliament Act. Reduced the power of delay to one year so as not to frustrate the radical Labour Government of 1945 – 51 led by Attlee.

b. The 1958 Life Peerages Act. This helped address the problem of the composition of the HoL by creating life peers whose right to sit in the Lords would end when they died. It also allowed a revival of the chamber with an injection of the “great and the good”. Attendance had fallen and given the dominance of hereditary peers, the chamber lacked any legitimacy in a democratic age.

c. The House of Lords Act 1999. By reducing the number of hereditary peers to 92 from around 700, the remaining Conservative (and conservative?) bias was ended.

d. The creation of the House of Lords Appointments Commission 2000. This reduced the power of patronage exercised by the PM as the commission recommends not party political life peers and vets the nominees of political parties. Since its creation the Commission has nominated 61 cross benchers[7] .

e. The Constitutional Reform Act 2005. This was a cosmetic exercise in effect which moved the Law Lords into a new UK Supreme Court. Hence the chamber “lost” its judicial function. In effect the Law Lords moved to a new building exercising the same powers as they previously had done.

What emerges from these reforms is an indication of the evolutionary nature of the British Constitution. The measures above have all been responses to problems that have merged overtime. Collectively, they have resulted in a chamber whose work is admired and one which poses no real threat to the democratically elected government. This would support the view that further reform should be cautious and gradual rather than bold and radical. A wholly elected Senate for example may well be perceived to be a solution to a problem that presently does not exist. Furthermore, it is likely to create a raft of new problems.

7. The government were not committed to reform. Tactically the government could have done more to push the reform through Parliament. Unlike devolution under Labour and the question of electoral reform under the coalition government, no referendum was held on the issue of House of Lords reform. A vote either way would have helped a resolution of the issue. The yes vote on favour of devolution effectively ended parliamentary opposition to the proposal.

When I say the government was not committed to the bill, that really should read, the Conservatives were not committed to reform. Whereas Cameron was able to coerce his party to allow a referendum on the AV, the Conservative backbenchers refused to toe the government’s line and support HoL reform. 91 Conservative MPs voted against the proposals effectively killing the bill.

Labour argued that they supported reform but needed more time from the government to consider the proposals. Given the fact that the Liberal Democrats withdrew their support for constituency boundary reforms in a tit-for-tat response to Conservative opposition to House of Lords reform, it is to Labour’s advantage that reform has failed. Clegg asked Miliband how much time would he like to consider reform proposals. His lack of response might indicate that Labour does not know what it wants, if it wants reform at all.