Reform of the House of Lords

Michael Roberts 27/05/2009

PRN: 050343658

Michael Roberts

Tutor Group E

Tutor: Rodney Austin

Public Law Essay 1

Question 3 – Argue the case for or against the proposition that ‘all members of the House of Lords should be appointed by an independent Appointments Commission which would secure

that 25% of the members were independents
that the party balance between the rest of the members was proportionate to their share of the vote in the most recent general election, and
the House contains members with experience or expertise that will be useful to the House in its scrutiny and debating roles’

The House of Lords is the oldest part of Parliament which prior to the Life Peerages Act 1958 was composed entirely of hereditary peers. The problems of using hereditary peers were self-evident: it was undemocratic and they were not accountable to anyone meaning they could do almost anything they wanted! Even since the Life Peerages Act, the vast majority of Lords were hereditary peers right up until 1999 when the House of Lords Act 1999 was passed, which incurred significant changes to the composition of the House. Since this Act the number of hereditary peers has been cut down to 92 (“elected” by their peers to remain Lords) and the rest appointed under the 1958 Act, along with Law Lords and Bishops. The 1999 Act was only the beginning of the Labour government’s proposal to restructure the House of Lords, but they have encountered considerable difficulty in agreeing how to complete the reformation. Central to this debate is what the composition of the House should be. I am generally for the stated proposition and in the course of this essay I intend to discuss both its good points and its bad points.

The first point to be addressed is the idea of using an independent Appointments Commission to appoint all new Lords. Such a commission currently exists, but only to make recommendations to the Prime Minister. The alternative to appointment would be to elect the members of the House. Election would appear to be the most democratic method of deciding on the makeup of the House of Lords. In fact, a recent poll on the BBC showed that the majority of the public felt that all Lords should be elected. However it would run into conceivable problems, the most obvious being that, with the Lords and the Commons both being elected, the political composition of the two chambers would mirror each other. The Lords would thus provide no effective scrutiny over parliamentary bills and there would be no point in its existence. Conversely, if the two Houses happened to be elected resulting in different majorities there would constantly be disagreements over proposed laws, protracting the already slow legislative procedure. Both Houses would feel superior to the other (making legislation even harder to pass) and party politics would become part of the House of Lords. One of the positive aspects of the House of Lords at present is that, due to its non-partisan ethos, it is able to scrutinise and review proposals from the Commons without overly frustrating them or getting in the way. Therefore, a wholly or mostly elected House of Lords would probably not be the best option. That said, it does make sense for the composition of the Lords to have some reflection of the political wishes of public. After all, the Lords play a huge role in the government, which is based on democracy. So a chiefly appointed, partially elected House would seem desirable, although there has not been any parliamentary consensus agreeing to such an elected element. Critics of the appointment of Lords say that this consists too much of government and Prime Ministerial nominees. This may be so at present, but with the establishment of a wholly independent Appointments Commission this argument could be dispelled. Generally speaking, the idea of an independent Appointments Commission is a good one but perhaps only a majority, rather than all Lords, should be appointed. The three major points which this Commission are proposed to secure shall now be examined and evaluated in detail.

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Ensuring that a quarter of the members of the House were independent would certainly help maintain the important distinctions between the Commons and the Lords. These are: that the House of Lords provide an ideal means of objective scrutiny and review of bills which have been passed by the lower chamber, that the House will introduce legislation which the Commons would not and that the House of Lords can act as a check on the government, helping to enforce constitutional principles. Keeping 25% of the Lords independent would uphold some of the functions that the House of Lords currently performs so well. Conversely it could be argued that such a feature is undemocratic. In fact the notion that the second House of Parliament would be in part comprised of non-political members does strike some as being very undemocratic. However, as has already been illustrated, a wholly elected second House would almost certainly yield most undesirable results. Yet at the same time, too many independent members and similar problems would be incurred at the opposite end. A balance ought to be struck and 25% seems about right.

To answer somewhat the critics who feel that the inclusion of independent members is wrong, the suggestion (made by the Royal Commission on Reform of the House of Lords) is that the rest of the members should be politically proportionate. That is, the political makeup of the Lords should reflect the results of the most recent general election. Theoretically this proposal sounds sensible. Of course, one obvious problem with this is that many Lords would only sit for a short period of time and a more political attitude could creep into the House if its members know their seats could be at stake. This would make it more like the Commons, raising the question once again whether it is desirable to have two Houses of Parliament which are essentially similar. The general view is that it is not. Again it is vital that a balance is struck. The Lords should represent the political aspirations of the public to a certain extent. If all Lords were to be appointed rather than having an elected portion, it would be important for the Appointments Commission to bear in mind the political representation of the Commons. Fortunately the unwelcome scenarios illustrated above where the political composition Lords matches the Commons would be less likely due to the significant faction of independent members. Therefore, despite the flaws of the proposed method party representation, it would certainly appear to be one of the better options.

The third point, that the Appointments Commission would ensure that the House contains members with experience and expertise, seems the least controversial. Debating issues of the day and scrutinising proposed legislation are the most important functions of the House of Lords. Therefore anything which could enhance its efficiency should be seen as a welcome addition to the chamber. Such members can bring expertise in from beyond the world of party politics which helps to keep the Lords at a distance from the Commons. The idea of technical expertise in particular fields is less common in the lower chamber; ministers rarely have the time or the skills to analyse bills the way in which the Lords can. Opposition to this proposal is minimal, although some may still object on the grounds that it is undemocratic. On balance, the positive aspects of striving to include a variety of experts in the House of Lords greatly outweigh the negative points.

The proposals presented seem to capture the right ideas of over what the reformed House of Lords should be comprised. Perhaps the one debatable issue is over the notion of appointing every Lord. It seems quite clear that the public, as uninformed as many of them may be, would like to see at least some degree of election. Then again, this issue is partially addressed by the proposal to consider general election results when appointing new Lords. Certainly the inclusion of experts and a significant proportion of independent, cross-bench Lords would very much assist the House in performing its vital duties; acting as a counter-balance to the Commons.

Words: 1,282 (without footnotes); 1,346 (with)

Bibliography

Bradley & Ewing: “Constitutional and Administrative Law” 13th Ed. Pearson

Greer Hogan, “Nutshells Constitutional and Administrative Law” 7th Ed. Sweet & Maxwell

Coles & Reynolds, “Constitutional and Administrative Law” Hodder & Stoughton

Bogdanor, Politics and the Constitution, ch. 14

http://news.bbc.co.uk/1/hi/talking_point/2723511.stm

This view was given by the Royal Commission on Reform of the House of Lords in 2000, although they did suggest that there should be an elected constituent.

See HL Paper 155 Page 4 (2003)

D. Oliver, Constitutional Scrutiny of Executive Bills, paras 2-5, Macquarie Law Journal (Australia) 2004

Para. 11 lines 9-10

http://www.new-politics.com/wiki/index.php?title=FAQ_%28Elect_The_Lords%29#Does_the_public_want_an_elected_second_chamber.3F