What do you consider to be the proper functions of a second chamber in the constitution of this country? What reforms are necessary?

by catherine105 (student)

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?

The current system of government in the UK consists of a parliament, which is essentially made up of two chambers: the House of Commons and the House of Lords. Members of the House of Commons are elected and its composition determines the party that will form government and is known as the lower house. On the other hand, members of the House of Lords are unelected and is constitutes as the second chamber of the parliament, also known as the upper house. It plays a role in legislation while providing a forum of independent expertise. One of its most important functions is scrutiny of the actions of the government. Although the House of Lords, as now constituted does not discharge its functions in the best possible way, it does have features that are worth keeping. Nevertheless, there are certain reforms that could be introduced to improve the existing upper house. Yet, it must be appreciated that it is indeed a very difficult task to create the ideal second chamber without compromising the other fundamental features that the current system should retain.

According to the Government’s proposals for reform of the House of Lords, they identified the primary functions of the House of Lords is ‘to scrutinize legislation, hold the Government to account and conduct investigations’ This is arguably one of the most important responsibility of a second chamber in government, often providing a check for the existing government to ensure that the best decisions are made. In order to carry out these functions, there are several important qualities that the second chamber should possess, one of which the Royal Commission on the House of Lords reform in 2000 identified: the second chamber should be ‘distinctively different’ from the first chamber. In fact, the second chamber should complement rather than replicate or compete with the House of Commons. The existing House of Lords does fulfill this requirement. Unlike the Commons, which is wholly elected, the House of Lords consists of hereditary peers and life peers, and archbishops and bishops of the Church of England. Amongst the peers are the so-called cross-benchers, who does not affiliate with any party. The fact that the Lords are not elected and are to a certain extent independent stands as a valuable body to review the actions of the government. Even though at times it lacks legitimacy to perform its duties, the House of Lords does provide interesting perspectives to debate. The diverse backgrounds of members of the upper house along with the members that possess particular skills, expertise or experience results in valuable contribution to legislative process that the parliament experiences. It monitors the House of Commons and helps prevents minority interests being undermined by the majority’s concerns. Its prescribed power to refuse legislation also acts as a useful check on the House of Commons. The House of Lords, not clouded by party affiliation and bias addresses issues in a more objective and thoughtful way, just as Lord Puttnam describes the House of Lords as a ‘specialist, non-partisan knowledge and experience’. The House of Lords carries out the exact job they were believed to have by the Royal Commission: to make ‘the House of Commons think again’ and to ‘engender second thoughts’. Yet, as an unelected body, the House of Lords lacks legitimacy, which restricts the extent to which it can exercise its powers. Despite its theoretical powers, in reality the House of Lords is very limited in terms of exercising its primary function of scrutiny. Moreover, the existing membership of the House of Lords does raise problems. At the moment, the Church of England is represented in the second chamber. In an age where societies are becoming more multicultural and secular, it seems bizarre that we still only have representation from one religion in government. A suitable reform would be to further widen the membership of the upper house to incorporate members with distinctly different backgrounds to ensure that all voices of society are represented in this second chamber of government. Furthermore, the House of Lord’s ‘working house’ is significantly smaller than the House of Common’s despite its overwhelming number of total membership. Therefore, it seems sensible to make the second chamber smaller and the ‘300 members’ proposed in the House of Lords Reform draft bill is a justifiable number

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Having evaluated the relationship between the lower and upper house and the composition of the second chamber, another key question is the method in which the second chamber should be formed. There are certainly very different proposals. Having appreciated the advantages springing from the broad range of backgrounds of the existing members who are largely not party-affiliated of the House of Lords, the proposition of a wholly elected second chamber should be dismissed almost immediately. As Phillipson pointed out: ‘A wholly elected chamber, on the other hand, is objected to on the basis that it would produce a clone of the commons, that could become its rival, thus producing the danger of legislative impasse and destroying the clear line of democratic accountability between parliamentary government’ and that the second chamber ‘will be full of whipped professional politicians nodding legislation through without the searching, independent-minded and detailed scrutiny which the current House rightly prides itself on.’ The danger of equating the powers of the first and second chamber would result in ineffective government. An elected second chamber increases its legitimacy at the expense of distinctiveness, which was identified by the Royal Commission as an important feature of the second chamber. This will also obstruct the second chamber’s involvement in the scrutiny of the government’s business. Moreover as Barber identified: ‘Having too many elected bodies can harm democracy… If there are too many such bodies, citizens will become uncertain about which bodies they should engage with, and, as civic virtue is a finite commodity, may tire of the process.’ Another choice available is a chamber that is partially appointed and partially elected. Before going into the precise proportions of each of these groups, the idea, itself as Lord Irvine rightly labeled is a ‘hybrid nonsense’. This solution appears to be a desperate alternative on behalf of the government to address the failure of deciding decisively between the two systems. More importantly, the inevitable divide between the elected and non-elected will pose difficulties in government and due to the tension and power struggle between the two groups. On the other hand, although, as identified earlier, having a wholly elected chamber will be ’a giant quango’, as described by Lord Lucas. This would result in a largely unproductive chamber due to its lack of legitimacy. Nonetheless, it seems to be the best way forward. However, the power of the prime minister to be able to appoint certain individuals to join the House of Lords should be abolished as it allows too much patronage on the part of the prime minister. The new system should be operated by an independent committee, which will appoint individuals from a wide range of different backgrounds and expertise to the second chamber with the aim of forming as diverse a group as possible while keeping the group largely politically neutral. Undeniably, it is not exactly ideal because the system does not take into account democratic will in the formation of the second chamber and therefore lacks legitimacy, which is a problem that the House of Lords at present also faces. Yet, it must be remembered that the second chamber was never meant to be represented by populist groups. Its legitimacy will gradually come from the diversity of its members. Although the members of this second chamber are not elected personally by the people, there will be someone in the second chamber that ordinary citizens can easily identify with. Despite its criticisms, a wholly appointed chamber will be the only way to ensure that the core qualities of a second chamber would not be compromised in order that it will continue to be able to carry out its roles effectively and efficiently.

The House of Lords as it stands is arguably performing the duties that are expected of a second chamber reasonably well. The central problem it faces is the lack of legitimacy due to the way it is formed, which prevents it from carrying out the essential responsibilities of a second chamber. However, the solution is not to introduce a fully elected chamber but to carry on with the system of appointment but by a fully independent committee to incorporate people from even more diverse backgrounds to ensure that opinions from all sections of society could be heard, especially those who are not represented in the House of Commons. This promises that the second chamber’s primary function as a watchdog of the government can be performed in an even more satisfying manner. Admittedly, these reforms will not produce the perfect and flawless second chamber in the constitution of the UK that one would expect but it is perhaps as close as we can get in this short space of time.

House of Lords Reform Draft Bill, May 2011, P.7.

Commission on Reform of the House of Lords, A House for the Future, p 3.

D. Puttnam, ‘A Democratic and Expert House’ (1999) 70 (4) Political quarterly 368 at 369.

Commission on Reform of the House of Lords, A House for the Future, p 10.

Commission on Reform of the House of Lords, A House for the Future, p 11.

Gavin Phillipson, ‘The Greatest Quango of them all’ (2004) Public Law P.355.

Nick Barber, House of Lords Reform: A Look in the Long Grass http://ukconstitutionallaw.org/2012/07/12/nick-barber-house-of-lords-reform-a-look-in-the-long-grass/

Hansard, HL cols 238 and 268 (January 21, 2003).

Hansard, HL col.684 (January 21,2003).