'Any proposal for the reform of the composition of the House of Lords ought logically to begin by asking what it is we expect the House of Lords to do and to tailor composition to function' - Discuss.

Public Law

Laurence Tucker

030342

The upper house of the United Kingdom, its “revising and leisured legislature”, is an unelected, democratically unaccountable institution. The origins of the House of Lords can be traced back to the eleventh century. The original purpose of having two chambers at Westminster was to allow for representation of different interests within the country. Until 1999 the composition of the Upper House was comprised largely of Hereditary Peers, whose eligibility for membership was determined by accident of birth.

Until 1911 Lords enjoyed equal power with Commons in all but financial measures. The reforms introduced by the Parliament Acts of 1911 and 1949 altered this power balance. Apart from retaining the veto power over Bills purporting to extend the life of Parliament the veto power held by the Upper House over legislation was curtailed to a mere delaying power.

Apart from the 1852 addition of the Law Lords the composition of the house in the 1950’s had remained unchanged since ancient times. The general perception was that the house had become anachronistic and ineffective. The Life Peerage Act 1958, by entitling a new type of non-hereditary, non-judicial life peer to sit and vote in the Upper House, introduced a major reform in its composition.

The Blair government of 1997 was elected on a platform which included reform of the House of Lords. This administration was responsible for the House of Lords Act 1999 which removed the right of all but 92 Hereditary Peers to sit and vote.

Current membership of the House numbers approximately 700, composed of the Hereditary Peers, Life Peers, Lords Spiritual, and the Law Lords. The hereditaries, 92 in number, instance a democratic deficiency in that eligibility to hold a seat in the house is determined through inherited privilege. Life Peers are appointed under the abovementioned 1958 Act by the Crown on the advice of the Prime Minister. The award of such peerage has often been an act of political patronage. Lords Spiritual consist of 28 Archbishops and Bishops of the Church of England. The Law Lords are effectively Life Peers chosen for their judicial facility. These Lords of Appeal in Ordinary represent the highest court in the United Kingdom hierarchy when sitting in their capacity as the Judicial Committee. Counter to strict interpretation of the doctrine of Separation of Powers a number of Peers are also Government ministers. Membership of the house is not remunerated.

Password

Confirm Password

I agree to the terms of service and privacy policy

Today the main functions of the House of Lords, in addition to its judicial role, are to provide a forum for reflection, to revise legislation, and to keep a check on Government. Being unaccountable to and independent of the wishes of Government the Chamber complements the work of Commons by enabling

This is a preview of the whole essay

second thoughts on political and legislative proposals; it provides a chance to improve legislation on its passage through Parliament. Lords spreads the legislative workload and its select committees provide a source of independent expertise. It is a revising and deliberative assembly which spends almost two thirds of its time on legislation. The house can initiate non-controversial legislation and performs an important function in its scrutiny of delegated legislation. The House of Lords provides a constitutional long stop, a check on the ability of Commons to make changes to the unwritten constitution without full debate and awareness of consequences.

As the result of a white paper the Royal Commission on the Reform of the House of Lords (Wakeham Commission) was set up. Its terms of reference included “… to consider and make recommendations on the role and functions of a second chamber; and to make recommendations on the method or combination of methods of composition required …”. The findings of the Commission were published in January 2000.

Apart from its proposal to abolish the power to veto Statutory Instruments the Wakeham commission recommended any reform of the Chamber should not alter its powers, nor should any specific functions not presently carried out by Parliament be added.

Subsequent to the publication of the Wakeham report several select committee reports regarding House membership composition have been published. This essay will now discuss the various potential methods of composition a reformed upper house suggested in these reports in light of the roles detailed above.

All proposals for the reconstitution of the membership of the House involve combinations of appointment and election of the new members. The Joint Committee of House of Lords reform issued its first report in December 2000; this report advised that there should be votes on seven options regarding future composition. These options, for an anticipated membership of approximately 550, ranged from a fully appointed house, to a fully elected house, with intervening options of varying ratios of appointed to elected members.

The appointment of members to the House would be beneficial in securing the expertise necessary for scrutiny of technical and scientific aspects of Bills and Delegated Legislation. Wakeham states that, the reformed House would need “members with a breadth of experience outside the world of politics and a broad range of expertise; particular skills and knowledge relevant to the careful assessment of constitutional matters and human rights”. Such expertise and knowledge however depends on an authority which may not hold the legitimacy bestowed by democratic election. Expertise could alternatively be acquired by calling upon selected experts to appear before specialist committees.

The appointment option carries with it the possibility of the abuse inherent in political patronage. This could compromise Lords role of holding the government to account. An important safeguard to counter this would be an independent Appointments Commission; proposals for nomination could still be made by the Prime Minister and others.

A House whose members are appointed on the grounds of personal distinction must guard against any tendency to become an ineffective convocation of geriatric dignitaries. Issues such as period of appointment would have to be addressed. The issue of remuneration may also have to be addressed as it

seems the unremunerated basis on which present members serve may have led

to an overrepresentation of the South East of England middle class in the House;.

Any composition option that includes appointed members carries with it the possibility of continuing to appoint the Lords Spiritual. Wakeham suggests continuing and extending such representation to include other denominations and faiths. The constitutional requirements of a modern secular state might instead require that whilst religious affiliation not be a bar to participation in the second chamber, nominations from religious bodies should be considered on the same basis as those from any other body.

An attractive option, in light of the requirements of accountability, if not independence, in the law making process is to compose the membership of a reformed Lords, at least in part, of elected members. Wakeham suggest the future House of Lords should be “broadly representative of British society”. Election of members from open lists could satisfy this requirement, if not the requirements of expertise and personal distinction.

A different electoral system could be one of indirect election via Electoral College. Devolved assemblies and the European Parliament could provide the building blocks of such a system and may enhance the capability of the House in fulfilling the values of “giving voice to the nations and regions of the UK, and scrutinising EU business” that Wakeham suggests the House fulfils in the future.

The Wakeham commission recommended the retention of the Law Lords as members of the House. This arrangement has ramifications for the Separation of

Powers; the requirement of judicial independence from the legislative process would seem to dictate that an entirely separate Supreme Court should act as final court of appeal.

The requirements of “legitimacy, representativeness, independence, and expertise” propounded in the second report of the Joint Committee as the ideal for the future membership of the House would seem to lead to the conclusion that any future composition of the Upper House should contain a substantial elected component. The ability of the current House of Lords to perform its functions is limited by the fact that, in spite of a removal of most hereditary peers, it has never been democratic. Elected membership would provide the legitimacy of a clear mandate.

In summary, the composition of House of Lords membership is currently in a state of flux. Any future composition needs to address the challenges the House faces in the 21st century. As a complementary second chamber it should not rival the fully elected commons, and so could perhaps retain at least some appointed membership. An elected membership component would reduce the influence of political patronage, as would an independent appointments commission. The requirements of the Separation of Powers doctrine would seem to dictate that the future House does not contain the Law Lords, as would the requirements of a secular state require no appointed Lords Spiritual. In order to retain a vigorous membership with a wealth of diversity of expertise the issues of length of tenure and remuneration would need addressing.

Bibliography

Barnett, H (2000) Constitutional and Administrative Law, Cavendish, London 3rd Ed.

Barnett, H (2003) Public Law (University of London Guide).

Marshall, G (1971) Constitutional Theory, Clarendon Press.

Munro, C (1999) Studies in Constitutional Law, Butterworths, London, 2nd Ed.

Public Administration Select Committee (2002), The Second Chamber:

Continuing the Reform (Wakeham Report).

Tomkins, A (2001) Separation of Powers, Ancient and Modern,

http://www.utexas.edu/law/conferences/oxford/Texas040.doc

Page of

Walter Bagehot.

560 in 1998.

28 in 1998.

23 in 1998.

“Modernising Parliament: Reforming the House of Lords”; January 1999.

Public Administration Select Committee; Feb 2002. Joint Committee on House of Lords reform – first report; Dec 2002. Joint Committee on House of Lords reform – second report; May 2003.

Para 28.

Wakeham; para 39.

Para 38.

Para 12.

Joint Committee on House of Lords Reform – Second Report 2003, para 23.