House of Lords (Reform)

Introduction

In most liberal democracies, the legislature consists of two chambers. The UK Parliament is bicameral, it consists of two legislative chambers – The House of Lords and the House of Commons. The House of Lords, also known as the Upper Chamber, consists of the bishops of the Church of England, the hereditary and life peers whom are mostly nominated by the Prime Minister (who by convention, is a member of the House of Commons) and appointed by the Queen. The House of Commons, also known as the Lower Chamber, was established with the rise of democracy. This Lower Chamber is the only elected chamber, and was only until early 20th century has it successfully challenged the Upper Chamber for constitutional supremacy. The powers of the House of Lords in respect of public, private and subordinate legislation were equal to those of the House of Commons, except that the Lords could not initiate or amend Bills granting aids and supplies or imposing charges on the people ("Commons financial privilege"). But the Lords retained a rarely exercised right to reject financial legislation outright.

Composition of the House of Lords

The membership is mixed, consisting of hereditary peers and life peers, and archbishops and bishops of the Church of England. There were 1295 members in the House of Lords before the effect of the House of Lords Act 1999, which then significantly reduced the size to 695 members by October in the following year. As at November 2004, the membership of the House of Lords was as follows: 74 hereditary peers (elected by Party); 14 hereditary elected office holders; 2 hereditary Royal Office Holders; 25 Bishops and lastly 577 life peers (155 Conservative; 197 Labour; 64 Liberal Democrats; 152 Crossbench; 9 Others) appointed by the Queen on the advice of the Prime Minister, to be members of the House for life. Thus no one party has a majority in the House of Lords. Party affiliation is not proportionate to the level of support for the parties in the 2001 election; nor indeed is it related to any other measure.

Functions of the House of Lords

Despite its undemocratic and unrepresentative nature, most academics recognized that the House of Lords plays a vital role in Parliament. Firstly, they mainly scrutinise legislations. Under the 1968 White Paper, it listed seven functions (see footnotes). Among which, the most important work of the Lords is in its consideration and revision of public Bills (the average number of amendments passed was over 2,600 in the 1987-90 sessions) sent up from the Commons and scrutiny of the delegated legislation including European secondary legislation. This certainly reduces the pressure on the Commons (The upper chamber is therefore often referred as a “revising chamber” because of its independence and expertise) Also, because this chamber does most of the scrutiny of the technical legislation, many government amendments are brought in the Lords to save time in the Commons.

Under the Salisbury Convention, the Lords will not reject a government bill promised in manifesto nor introduce “wrecking amendments”. Also the general restraint which is a more flexible concept might at times cause the Lords to stick to their beliefs. For example, in the Child Support Bill 1991, the Lords rejected clause 46 which offered no defence to the mother who declined to give information. When returned to the Commons, the government made a concession to the Lords and inserted a defence of reasonably withholding information. Other examples of the Lords’ interventions included: The European Parliamentary Elections Bill 1998; Fox ...

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Secondly, they act as a check on the first and a safeguard against the concentration of too much power in the hands of one institution. Under the Parliament Acts 1911 and 1949, the power of the House of Lords was reduced to a power to delay legislation introduced in and passed by the House of Commons for one year. It is significant that the House of Lords retains the power to reject any Bill to extend the life of Parliament, thus making the House of Lords a safeguard against any attempt to subvert democracy by postponing elections. The Wakeham Commission proposed that this should be strengthened by making it possible to use the Parliament Acts procedure to amend the Parliament Acts themselves, as happened controversially, in 1949.

Correlation of function and composition in the House of Lords

The inherent ability of the Lords to work effectively at scrutinising legislation is mainly due to its three features as suggested by Norton. Firstly, as an unelected body, it cannot claim legitimacy to reject the principle of measure agreed by the elected House, therefore paying greater attention on the details. Secondly, its membership includes people who have distinguished themselves in particular fields – law, education, industry, and industrial relations. As a result, it can look at legislation from the point of view of practitioners rather than the professional politicians who might not have any knowledge of the subject matter. Thirdly, because the House does not consider financial Bills, it has more time than the Commons to debate non-money Bills. In addition, there is no provision for guillotines or closures to be imposed on debates, so that all amendments are discussed unless withdrawn.

It can be seen that there has been no agreement in favour of election of all or even part of the House of Lords. Proposals for reforming the House would be discussed later on.

Elections to the second chamber would manifest problems in the British constitution. If it were to be elected by some other electoral system, it could claim an equal or even greater democratic legitimacy and challenge the dominance of the Commons, thus leading to legislative gridlock. As Dawn Oliver puts it, “A second chamber that was able to paralyse on party political grounds a government supported by a majority in an elected first chamber would tip the balance too far away from effectiveness and towards populism.”

Furthermore, elected members may not necessarily be suited to perform the onerous task of scrutiny and “watchdog functions” as they might not possess the credentials and impartiality. People who do not posses the above are unlikely to be willing to stand for election on a party ticket. As such, they are often neither politically committed nor aligned with political parties. Where they are aligned, they might not be willing to go through the process of elections either. On the other hand, an elected chamber would inevitably attract the same type of candidates as the House of Commons, thus losing the diversity which has been viewed as one of the strengths of the unreformed House of Lords.

In light of the above, the reformed proposals will now be discussed.

The Wakeham Proposals

It has been debated that the Wakeham proposals proved to be highly controversial. The report suggests a mainly appointed House of 550, with a minority of elected members to represent the regions. It put forward three options: option A, 65 members, option B, 87 members, option C, 195 members. These would be selected by an independent Appointments Commission, which would be instructed to ensure a political (independent element of 20% in the House), social, gender ( at least 30% of the new members were women) and ethnic balance. It would also aim to ensure that the parties were represented roughly in proportion to the votes cast in the most recent General Election, in order to remove the long standing domination of the House by one party: the Conservatives.

Many commentators were critical of this proposal, preferring a wholly or at least substantially elected chamber. It is however unlikely that any government based in the House of Commons would be willing to introduce a reform which would turn the second chamber into a genuine competitor. Were the UK to develop, as a consequence of devolution, into something more like a federal state, it would be appropriate to use the second chamber as a means of representing the separate nations and regions of the UK, until then the argument against electing the second chamber are likely to prevail, and the Wakeham Commission are least preferable to leaving the power of patronage exclusively in the hands of the Prime Minister.

In response to the Wakeham proposals, the government came up with a report known as the White Paper 2001. It accepted the fundamentals of the proposal but the controversy steps in where firstly, it suggested leaving the parties to nominate the political non-elected members; secondly the government proposed allowing both nominated and elected members to stand again; thirdly, it suggested reducing the 15 year terms for members. These changes are controversial due to the fact that it would significantly increase party control over both the selection of members and their likely behaviour since the threat of not being re-selected for membership could be used to enforce obedience to whips. As such, parliamentary members of the Royal Commission refuse support of the White paper.

Report of Public Administration Select Committee (PASC)

The proposals of PASC seemed to be a replica of Wakeham by suggesting that at least 60% of the House should be elected, 20% independents to be appointed by the Appointments Commission and the other 20% party political members of seniority and distinction to be appointed by the Appointments Commission too.

As summarised by the PASC, the reformed Lords should have:

Distinct composition: It is vital that the House draws its members from a diversity of fields, and to ensure that party balance is more proportional than in the Commons.

Adequate powers: If the reformed House is to make a significant impact, it will need to have moderate to strong powers.

Perceived legitimacy: In order to use its powers, the new chamber – unlike the existing House, will need to be seen to have legitimacy, and be able to carry public support.

Latest Government Proposals – September 2003 (under review)

In this latest proposal, the government has decided not to have any elected members. Instead, 20% of the independent members are to be appointed by a Statutory Independent Appointments Commission. They are under a duty to have regard to the outcome of the previous general election result when fixing proportion of seats each party gets, and ensuring no one party has a majority. However, members to represent the parties will be chosen by the political parties themselves (as at present), not by the Commission.

On the whole, it can be seen that the PASC proposal is certainly similar to the Wakeham report in terms of having the House more representative in terms of political, social, race, gender and ethnicity. However, key difference stems from the fact that the PASC wants the House to be mainly elected rather than Wakeham/Government proposals.

Where the Wakeham and Government proposals are concerned, consensus has been reached as to the powers of the Lords. It is clear that they both recognise the Lords as subordinate to the Commons, having no special powers over constitution. Both proposals also made little recommendations to the change in its work. It mainly aims to retain best aspects of the Lords (independence and expertise) while strengthening legitimacy (more so in case of Wakeham). Their similarities end where it comes to the appointment of members. Under the government model, parties would select the 80% nominated political members, whereas in Wakeham, the Appointments Commission appoints all non elected members.

Comparison

It has been argued that a fully or mainly elected chamber would become a rival to the Commons leading to gridlock in legislation and resulting in the loss of current valuable qualities of the Lords (emphasise its independence and expertise). However, it is suggested that this objection is somewhat simplistic, as it fails to take into account the legal limitation represented by Parliament Acts.

It is however submitted that, the real obstacle to a fully elected chamber is in its practicality. Akin to all other elections, it is inevitable that candidates are usually a member of one of the main political parties. Thus leading to a second chamber dominated by party whipped members whom are unlikely to offer any non-partisan judgment. As such, the so called expertise and independence would undermine the value of its work.

From the above arguments, the PASC would seem to be a better choice as a hybrid of the Wakeham and Government proposal. The elected element gives the House legitimacy, encouraging it to use its powers to make the government rethink particularly where issues of basic human rights, protection of unpopular minorities or where constitutional changes are at stake.

Conclusion

Bogdanor in his article claimed that “A mixed chamber would contain members enjoying different degrees of democratic legitimacy. The danger then is that any vote carried by a group with a lesser degree of democratic legitimacy will be seen as less valid than a vote carried by a group with greater democratic legitimacy…”

Therefore, the argument put forward by Oliver that the legitimacy of such a House should not be problematic so long as it observes the Salisbury convention and develops explicit conventions to decide when it would ultra vires.

As such, ignoring the simplistic arguments against the Government proposal, as long as there are elaborate and specific Parliament Acts in check for the fully appointed second chamber, its legitimacy could be established. Furthermore, the Independent Appointments Commission are under a duty to regard to the outcome of the previous general election result when fixing proportion of seats each party gets, and ensuring no one party has a majority. This would create a non-partisan climate, allowing for issues to be debated in great depth from all aspects.

Last but not least, no matter how significant the House of Lords regardless of its efficiency and democracy, the Prime Minister might ponder on whether to give more power to the House of Lords.