What do you consider to be the proper functions of a second chamber in the constitution of this country? Does the House of Lords, as now constituted, effectively discharge these functions? If not, what reforms would you introduce?

In addition to the legislative functions which the House carries out effective work in its Select Committee. These select committees are set up by and comprised of small bodies of parliamentary members to provide expertise and deal with specific issues relating to the system of parliament. The Lords debate the rights and wrongs of whatever the subject is and make a pronouncement on it.  According to Bogdanor, the House of Lords in this area has become a centre for informed debate. This is unsurprising as the House of Lords, in its selective membership, draws upon a larger range of expertise and experience from a certain area than does the House of Commons. In this area and in these committees, such as the Delegated Powers and Regulatory Reform Select Committee, the House is said to be highly successful.

This primary function of legislation is still viewed as an important and integral one by leading academics. However the effectiveness of their discharge in this field can certainly be challenged as a result of both Acts and Conventions which have been developed to restrict the powers of which the House once enjoyed.  Bradley and Ewing state that the House of Lords, unlike the more political Commons, give have an ability to give a greater care to specific details of Bills – this feature of their existence is particularly important when timetabling prevents the Commons from regarding a Bill in full before it is passed on. Therefore it is clear to see that there is still reason for the existence of the House itself and that to describe it as defunct would certainly be hyperbolic. In 1911 and 1949 however, the Parliament Acts firmly asserted the supremacy of the House of Commons and effectively clipped the wings of the Lords with regard to their fundamental abilities. Under the first of these Acts in 1911 it was decided that the House of Lords could not veto any public Bill put forward by the House of Commons and also imposed the maximum delay on legislation by the House to a period of two years. The Act passed in 1949 amended the period of delay from two years to only one and, whilst these acts have been implemented fairly infrequently, their existence at any rate is a clear affront to the power of the Lords. Situations do exist in which the Lords have been bypassed by the Commons as a direct result of the limiting parliamentary acts. The Hunting Act is an example of this.

The supremacy of the House of Commons and the restraint of the Lords’ power have not come about as a result of legislation alone. In addition to this, the House of Lord’s hands are also tied by the Salisbury Convention. This is an established constitutional convention by which the second chamber will not oppose the second or third reading of any government legislation within a manifesto. Whilst the Salisbury convention was reviewed in 2006 in order to ‘seek consensus on the conventions applicable’, it was decided that the convention had altered since its original conception and that now every manifesto was subject to a second reading by the Lords, it was recognized also that any House of Lords resolution to set out the convention’s terms would be ‘unenforceable’.  It is clear from these restrictions that the House of Lords is relatively restricted in the ways in which they are able to discharge their functions effectively – Shell even states that “the second chamber should be cautious about challenging the…views of the House of Commons on any policy issue”.

Parliamentary reforms have also largely impeded on the powers of the Lords in another way over the course of the previous decade. One of the main functions of the House of Lords was once as the highest court of appeal in the land. Historically the House of Lords formed a court and had an extremely large part to play in the judicial nature of the United Kingdom. These powers, however, were finally brought to a close by Part 3 of the Constitutional Reform Act. This reform aimed at the separation of the powers of Lord Chancellor which extended across ruling bodies and played a key role in the recommendation of judges to the Queen. According to Professor John Griffith, the old system lacked "sufficient transparency of independence" of the judiciary from the executive and the legislature. By this act, the Supreme Court was created as the highest in the land to be ruled over by Law Lords. It is clear from this that the House of Lords is now unable to carry out what has long been one of its main functions in the same manner as a result of these reforms to amend its nature.

Reports for the further reform of the House of Lords are still appearing today such as in the White Paper issued in 2007 and will, most likely, continue to appear for the foreseeable future until overhauls are made to the very composition of the House. It is widely argued that, in order for the House of Lords to effectively discharge its functions and, in effect, continue to operate in a way in which it is believed will be of the greatest benefit to the nation, a reform of the system of appointment is needed. A report by D. Shell recognizes that the House of Lords ‘has been inhibited by its lack of authority…it wants the new house to be authoritative, but not in such a way as to challenge the ultimate democratic authority of the Commons’. The third part of this essay aims to collate views as to possible reforms to the House of Lords and assess whether these will, in fact, have any beneficial effect on the House and its functions.

Phillipson affirms that, to be certain of how reform of the House should come about, one must ascertain the functions which will be expected of the House of Lords. These clearly include the current scrutiny of policies yet perhaps also ought to include the function of being a body more representative of the regions. The current system of peerage or appointment does not allow any real legitimacy to the House and it is this, it is believed, that restrains the second chamber. Tomkins agrees with much of this in stating that “the House of Lords remains utterly lacking in democratic legitimacy and in the authority which comes with it.” This legitimacy is clearly essential in a democratic age and it is no longer enough for a House of Lords to expect their positions and titles to add weight to their practices. However, election in a democratic manner to the Lords would not be a satisfactory solution to this issue. The position of the House of Commons is that they are a body of elected individuals and there needs to remain a difference between the Houses. The argument for a wholly elected House of Lords also fails on the grounds that it would lack the specific expertise and experience which now characterizes it and it put into practices in key works such as Select Committees. What seems like a rational proposal for reform is a body which is partially elected. As considered by Phillipson, it would seem that if the House of Lords were to implement a proportion of 60% elected members, this would satisfy criterion and calls for democratic legitimacy but would also ensure that there remained a safe number of unelected officials who possessed expertise and could distinguish between the two parliamentary Houses. Phillipson continues, and rightly so, that the House of Lords ought to remain a body which is not controlled by any one party and is “controlled by forces independent of government”.

The role of the House of Lords is clear, at present the House seems to exist mainly to critique, amend and eventually approve acts which mainly originate in the superior House of Commons. Whilst there are of course other functions such as the Select Committee, it seems obvious that there will always be continuous unrest with the work of the Upper House until further constitutional reform is put into practice. Recent parliamentary reforms are the main reason why it is so difficult to assess the discharge of the functions which the House is expected to carry out. It seems that the falling legitimacy of the House and the restraints placed upon it are largely preventative measures upon the output of a House whose functions themselves have even been depleted and can be bypassed if necessary. Further reform seems both inevitable and essential and the introduction of these ought to aim to both legitimize the House of Lords, regain its authority whilst ensuring that its fundamental and distinctive features are withheld. The views of Bogdanor seem apt in concluding the necessary reforms of the House of Lords: “in the modern world the power of an upper house will depend primarily upon its democratic legitimacy…it will prove a more formidable body and a thorn in the side of the government legislative programme. This might well require reconsideration of the Parliament Acts and a new statutory definition of the powers of the upper house.”