In a survey in 2005 by Parliamentary brief, 78% of peers asked believed the reforms had made the chamber more legitimate. The official Labour line from 99 said removal of hereditary peers would make the chamber “more legitimate”. Coupled with this are the merits of the Lords in terms of representation, with a higher proportion of women and ethnic minorities being appointed in recent years. The chamber post 99 is much more confident in itself and there seems to be a renewed strength within. This can be seen with the proposal to reduce the Lords delaying power to 60 days being met with fierce opposition from all over the political spectrum. Surveys have found that even with manifesto bills, the majority of MP’s agreed that the Lords would be within its rights to block bills highly unpopular with the public. With no binding allegiances they can use their power when they believe public opinion dictates them to do so. And the government questioning the Lord’s legitimacy for being unelected is becoming increasingly vacuous, given the 10 years they have had to introduce reform.
There are also potential problems reform would bring. What would happen with the 1911 and 1949 acts and the Salisbury convention? With added legitimacy, the Lords could conceivably claim them to be no longer applicable. With further reform of the upper chamber further codification would also be needed, something unlikely to happen. There are also safeguards within the Lords against elected dictatorships in the 1911 Parliament Act, this was put to the test in the R (Jackson) v Attorney General [2005] case. The question was raised about whether the Parliament Acts could be used to extend the life of a Parliament for more than 5 years via the way prescribed by those acts. Only Bingham said it could, 5 other Lords ruled that it could not. This acts as a safeguard, keeping a check on the executive, something that could potentially be swept away. This goes hand in hand with the problem that conventions cannot be codified since this contradicts what they actually are. This could lead to manifesto bills, what governments often win and lose elections on, being ruled against by an unelected chamber. This would be clearly unfair and contradict the point of the 1949 Parliament act.
So far I have argued that any change at all is not needed and could potentially be detrimental. Here I will argue that the method of change proposed is flawed. One of the main reasons for change is to make the upper chamber more democratic. This proposal flies in the face of that. With the chamber being all appointed, it is still highly undemocratic. This would make little impact on the chamber and create very little change beyond giving the Lords slightly more legitimacy. Unaccountable chambers cannot be legitimate, this is very important given the expectation from modern parliament that our second chamber should have an element of electoral accountability. This has been the main area of Lords criticism in the past and will continue to dog it in the future if such proposals are carried through. Along with providing a weak and ineffectual chamber it would also potentially damage the credibility of the British parliamentary system.
The renewed composition would also create difficulties. 75% of the members of the Lords would have their seats determined by general elections. This could lead to one party dominating both chambers, though a majority is unlikely to be feasible. This is highly undesirable, having a party dominate both chambers would potentially allow government to run unchecked. This would also mean that the Lords would have a vested interest in the outcome of elections. It could lead to them following their party whip much more and changing the atmosphere from the current one where business is carried out in a calm and orderly fashion to that of the public school boy banter that is prevalent in the commons. It could lead to them pandering more to their party, this would drain their time as instead of focussing on matters in hand untroubled, they would have worries over whether they would be sitting in the House next time due to the constant chopping and changing of party Peers depending on the way the latest elections went.
The proposal of an Independent Appointments Commission is fairly null and void since this in existence. The Prime Minister is already appointing Peers on the advice of an independent appointments commission, he has thus far chosen 36 non party peers to recommend to the Queen on its advice. It also scrutinizes all nominations for peerages, in particular those made by political parties. With choosing independent peers, this would also be a potentially difficult job, the relevant amount of varied perspectives and high level of expertise is clearly needed in the house, but this will not necessarily always coincide with complete independence so this will be hard to guarantee for the Commission. If there are any allegiances within the independent section of Peers this will cause further problems with 75% of the peers already being drawn from parties, further undermining the nature of the lords and turning it into a quite different animal.
Looking at the House of Lords Reform Bill presented by the government in February there are certain principles our government believes the Lords should embody and these proposals can be said to contradict some of these principals. One of these principles was a more legitimate House of Lords, something that cannot be done without an elected element to make it accountable. Another was Continuity of Membership, with part of the Lords strength lying in it not being subject to the kind of changes the commons experiences with every election. This helps Peers look beyond election cycles and adds experience to the members, with the proportion of party members being changed due to the outcome of the last election all this could be lost. Long terms also encourage independence, something that could also be lost.
The only point I can give real credence to is that the House needs to contain members with the experience, expertise and perspectives that will be useful in scrutiny and debating. But given that this is something that is already found in the House of Lords with various leaders in their field sitting in the Chamber this is a rather thin reason to base reform upon.
It is clear that if there was to be any reform in the House of Lords at all, choosing to go down the route of a fully appointed second chamber would clearly be a mistake, if there is to be any real reform there must be some sort of elected element to the second chamber coupled with key constitutional changes to go with it. Paying lip service to the issue with such measures is clearly not a deep or wide enough change.
Bibliography
A House of cards?; Meg Russell writing in Parliamentary Brief (May 2007)
Reforming an Unelected Upper House: The Strange Rebirth of the House of Lords;
Paper to Conference on Transforming Canadian Governance Through Senate Reform University of British Columbia, 19-20 April 2007
The House of Lords: Reform Cm 7027
Lords should block Government legislation say pubic and MP’s
Turpin and Tomkins; British Government and the Constitution 6th edition (2007)
