Government Proposals for Reform of the House of Lords
A submission to the Lord Chancellor’s Department
An analysis of the shortcomings in the government’s proposals for House of Lords reform and some alternative suggestions.
The Government’s proposals for House of Lords reform as put forward in the White Paper of November 2001 are seriously defective: if implemented, they would not command wide popular or political support: and they fail to address a number of serious shortcomings in our existing system, which, if not remedied now in the context of the reform of the second chamber, will continue to deform our constitutional and political arrangements for another generation, perhaps longer.
The present unrepeatable opportunity for reform needs, I submit, to be seen against the wider background of two major inter-related crises now threatening our democracy: first, the establishment of virtually untrammelled control of the House of Commons by the executive, removing almost all the historic safeguards against abuse of power by government and Crown so painfully established over the centuries as the mainstay of our parliamentary democracy; and, secondly, the collapse of public confidence–and even interest–in Britain’s governmental and parliamentary systems, as demonstrated by the turnout at the 2001 general election, the lowest since the establishment of our representative parliamentary democracy. Large numbers of people (however mistakenly) now regard parliament as irrelevant, archaic, overly formal and dominated by meaningless ritual, powerless because controlled by an all-powerful government which can and does ignore the views and wishes of its members, and out of touch with the ordinary lives of its citizens. This double crisis in our democracy cannot of course be resolved just by reform of the second chamber, however radical and enlightened. But it is vital that the measures adopted to reform the second chamber should (1) ensure that the dominance over parliament of the executive, including the political party machines, is reduced and monitored, not increased; and (2) make the second chamber more obviously relevant to ordinary people’s lives, appropriate to the 21st century, unarguably democratic, free from the control of government and party bosses, and just plain interesting. The government’s White Paper proposals will not achieve any of these objectives. If implemented, they will only make an already bad situation worse.
On the specific proposals:
Composition: election vs. appointment
The arguments against a wholly or mainly elected chamber are unconvincing. The preoccupation with preserving the supremacy of the House of Commons is surely misplaced, on several grounds: such supremacy is largely a myth, since the modern House of Commons is virtually a tool of the executive, at any rate when the government has a safe majority; and its seniority compared with the second chamber is assured by its role as the creator and location of governments and its virtually unlimited legal powers, compared with the greatly limited powers of the House of Lords and its lack of any role in the choice of government. The idea that the senior status of the House of Commons depends for its survival on the patently undemocratic character of the second chamber and on its consequent lack of democratic legitimacy is defeatist and objectionable. A second chamber of parliament deliberately constructed so as to lack legitimacy, credibility or democratic character is an insult to the electorate and a major obstacle to public respect for parliament as a whole and for the parliamentary system.
The White Paper asserts that only a minority of second chambers in western democracies are wholly elected, but in fact it is striking that out of the second chambers of the US, Canada, France, Australia, Germany, Ireland, Italy and Spain (i.e. all the main comparable democracies), there is a directly or indirectly elected majority in every one except Canada.
The White Paper’s proposals are also quite unacceptable in their details: “A majority of the members of the new House will be nominated by the political parties, in proportions intended to reflect the shares of the national vote in the previous General Election. There will also be about 120 appointed members with no political affiliation, 120 directly elected members to represent the nations and regions, and a continuing role for Law Lords and Bishops of the Church of England.” The new chamber is eventually to comprise no fewer than 600 members (around “750 members to accommodate existing life peers” during the transition!). Of these, it is proposed to use party lists for the 120 elected minority, so that the party leaders and their apparatchiks will control access to the lists of candidates; the 120 appointed members are to be selected by an Appointments Commission whose “membership will be divided between representatives of the major political parties and independent members” and which will determine the varying proportions of the political party nominees; and, as noted above, “a majority of the members of the new House [“around 330 (55%)”] will be nominated by the political parties…” It could hardly be plainer from this that some 570 of the 600 members will be chosen on a basis which is directly (as to 450 members) or indirectly (as to 120) controlled by the political parties. It is true, of course, that the opposition parties as well as the government party or parties will have their share of this control; but this has always been the case in respect of the life peers, a substantial number of whom have been nominated by the opposition party leaders, not just the prime minister. At least in the past the hereditary peers were not there by courtesy of the party bosses!
The inescapable conclusion is that under the government’s proposals, the new second chamber will represent a huge increase in party political patronage. As such, it is unlikely to command the respect or interest of the majority of the electorate. Voters were notably unimpressed by the party list system for the election of MEPs that is now to be imposed on us for the wretched 20 per cent of members of the new second chamber enjoying this fatally flawed form of electoral legitimacy.
The government and the Royal Commission are right to value the idea that the second chamber should include representation for the nations and regions of the United Kingdom, but neither has been willing to face the reality that the UK is now a federal entity, with its subordinate, elected parliamentary bodies exercising substantial local powers in Scotland, Wales, Northern Ireland and London. It can be only a matter of time before similar devolution develops for the English regions. The White Paper dismisses the US Senate as a model for the new UK second chamber on the grounds that the Senate “is a component of the interlocking federal arrangements within the USA”: but as a federation itself, the United Kingdom needs just such a component. The elected second chambers of such federal systems as those of Australia and Germany also exercise federal functions as representatives of the lower-tier states, Lands, etc. In no case do those second chambers, although directly or indirectly elected, challenge the status of the lower Houses. It will eventually become even more obvious than it is now that a similar second chamber will be needed if the UK federation is to function properly. It would be folly to create a second chamber now which cannot be developed in the medium term into a federal senate, except by means of another major upheaval.
Finally, it is important to note that the objections to proportional representation (PR) for elections to the House of Commons with its government-making role cannot apply to the second chamber which does not make or break governments but whose main functions are as a deliberative, revising and representational chamber. The Australian system works well with different electoral systems for the two chambers. So do many others.
In short, the government’s proposals betray a determination to preserve and strengthen the party machines’ grip on both houses of parliament, and a mistrust of the British electorate, which deserve to be rejected in favour of a wholly (or largely) elected second chamber to include an element chosen by the national and regional parliamentary bodies, with directly elected members chosen by PR. If a section of the membership is to be appointed by an independent body to ensure that the chamber has access to special experience and qualifications of the sort attributed to the current Life Peers, it should not exceed 10 per cent of the total membership. Any larger proportion would call into question the democratic legitimacy of the second chamber and hence of parliament itself.
For efficient functioning, and to command public respect, the second chamber should have no more than 300 members.
Length of term of members of the second chamber
The government’s White Paper pays lip service to the need for members of the second chamber, or some of them, to be independent of governments, but its proposals fail to put flesh on this valid concept. There are strong arguments for all members, whether elected or appointed, to be given security of tenure for at least ten years, but to be barred from seeking reappointment or re-election, thus putting them largely beyond the reach of blackmail or favours from the party leaderships and their Whips.
There is no reason why elections to the second chamber should always, or ever, coincide with those to the House of Commons. The suggestion that a second chamber whose members, or some of whose members, have been elected more recently than the House of Commons will tend to claim greater legitimacy than the Commons or to assert that it is somehow more representative than the lower House, is far-fetched. The experience of parliaments in other democracies whose chambers are elected on different timetables does not support it. Members of the Commons need not feel so insecure over the status of their House: the fact that it is they who determine which party is to form the government, the presence in the Commons of the prime minister and most of the senior ministers, the House of Commons’ power to legislate on any subject, and its right to prevail in the event of unresolved disagreement between the two chambers, combine to ensure that the status of the House of Commons is immune from serious challenge.
The judicial function, the Law Lords and the Lord Chancellor
The White Paper does not attempt to argue the case for continuing the present, famously anomalous, position whereby the second chamber combines both judicial and legislative functions, with judges also sitting as members of parliament, and the Lord Chancellor combining in one person the roles of senior judge, party political minister and member of the Cabinet (appointed on the advice of, i.e. by, the prime minister), and impartial presiding officer in one of the two houses of parliament. Instead, it merely asserts that “The Government is committed to maintaining judicial membership within the House of Lords.” These extraordinary arrangements, which no-one would dream of suggesting if we were starting from scratch, depend on hazy conventions and traditions which are supposed to avoid the conflicts of interest and risks of partiality inherent in such a blurring of what should be transparently separate roles. The antiquity of the system is no justification for it. The judicial and legislative roles should not only be separate: just as importantly, they should be seen to be separate. At present they are not so seen. The safeguards of convention and tradition are little understood or believed. It is hard to credit that anyone drawing up proposals for a reformed, modernised and democratic parliamentary system could fail to include the decisive unscrambling of these fundamentally incompatible roles.
Senior judges have recently criticised the inadequate arrangements for the functioning of the House of Lords as Britain’s most senior Court of Justice, recommending in its place the establishment of a Supreme Court, properly (and separately) housed and staffed under a Chief Justice (whatever his title) with no political or parliamentary role. It is difficult to devise any serious argument against this proposal, now manifestly overdue. The Lord Chancellor’s executive functions should be transferred to a Minister of Justice (not necessarily in the second chamber) and a member of the second chamber should be elected by its members to preside over its sittings.
The Church of England Bishops
The government’s proposal that the Church of England, alone among the country’s faiths, churches, denominations, belief systems and philosophies, should be entitled to automatic and unelected representation in the second chamber of parliament is apparently based on the proposition advanced by the royal commission that “religious representation helps in the recognition of the part that moral, philosophical and theological considerations have to play in debating political and social issues.” This is surely intellectually unsustainable, indeed nonsensical. If it means anything, it asserts that Church of England bishops are morally superior to others, have a better command of philosophical understanding than others, and know more than others about “political and social issues”, all patently absurd propositions. It also implicitly asserts that “theological considerations” deserve special weight in the discussion of such issues, another objectionable proposition.
In this secular and multicultural age and society, the vast majority of whose members practise no religion and profess no interest whatever in any form of organised church, the grant of such privileged representation in the British parliament to a handful of Church of England bishops cannot be justified. If organised religion is to have the privilege of automatic representation, it cannot be right to grant it only to the Church of England. The choice is between either giving second chamber seats to all the country’s major faiths, Churches and sects (with the near-impossibility of deciding rationally where to draw the line, and the problem of fairness for the vast majority of Britons who actively practise no religion at all), or not having special representation for any faiths or Churches in Parliament apart from that which they can secure by ordinary individual election. The latter seems clearly to be the right course. As the government’s own White Paper acknowledges, “the Royal Commission’s recommendations for formal representation for other denominations and religions [cannot be accepted]. The practical obstacles are simply too great. Most other denominations and faiths do not have a hierarchical structure which will deliver readily identifiable representatives. There are many more denominations and faiths than could be accommodated by the numbers proposed.” Now is the opportunity, unlikely to be repeated, to remove another indefensible anomaly whose perpetuation would be yet another element calculated to bring the new chamber into ridicule and contempt.
The status of the Church of England as the established church (not, of course, in Scotland, whose parliament this is too) is not relevant to the issue of its representation in the second chamber. The removal of this representation need have no implications as regards disestablishment, although many would of course be happy if it did.
Ritual and ceremonial: the name of the second chamber
Much of the ritual and ceremonial of the House of Lords (some of it devised quite recently, although all of it affecting great antiquity) strikes ordinary people as absurd. It contributes significantly to the perception of the chamber as irrelevant, old-fashioned, fuddy-duddy and out of touch. The welcome and belated removal of the hereditary peers and the separation of the peerage from membership of the second chamber present an unmissable opportunity to bring it into the 21st century by modernising its procedures and rituals. Most of these can be dispensed with without penalty; the rest can best be performed in modern, colloquial English and ordinary modern dress. There seems no reason, now that the chamber is no longer to be a House of Peers, for The Queen to open Parliament in the second chamber, which gives a quite misleading impression of its importance and functions relative to the House of Commons. Westminster Hall would be a highly satisfactory alternative venue for a much simpler and less expensively costumed ceremony, if any formal opening is thought necessary.
The need for the second chamber to have an appropriate name is even more important. To continue to call it the House of Lords when it has been wholly divorced from the peerage would be pure Alice in Wonderland: that the royal commission and the government should even contemplate such an extraordinary idea is beyond comprehension. Every undertone and connotation of the word “Lords” is disastrously negative for public perceptions of an important part of our parliamentary system. It is redolent of the Us-and-Them, de haut en bas traditions of a bygone age. It obstructs any hope that ordinary people will relate to the parliament that they pay for and which, in a sane modern system, they would elect: the parliament which is accountable and subject to them, not they to it. It implies that the new chamber is nothing but a lightly refurbished version of the old. It betrays an arrogant indifference to the arrangements in other democracies from which we should not be too obstinate to learn. What’s wrong with “Senate”?
The new second chamber, which should be called the Senate, should be wholly or mainly elected, by direct and/or indirect elections reflecting the federal character of the contemporary United Kingdom. It should comprise no more than 300 members. None of its members should be elected by the party list system. Elections should be by proportional representation, members serving 10-year non-renewable terms. Judges and bishops should no longer be represented in the second chamber (unless they are elected on their individual merits in the same way as other members). The judicial functions of the current House of Lords should be hived off to a new Supreme Court and the triple roles of the Lord Chancellor should similarly be separated and allocated to three different officials. The supremacy of the House of Commons should be secured by the limitations on the powers of the Senate, the role of the Commons in determining which party should form a government, the presence of most of the government in the Commons, and the provision that in the event of conflict between the chambers, the Commons should always ultimately prevail. The elective democratic legitimacy of the second chamber is essential for the much-needed strengthening of the ability of parliament as a whole to monitor an over-powerful executive and hold it to account, to represent and reflect the will of the people, and to re-awaken the electorate’s interest in and respect for our political system.