Lords Reform 2: Form and Function… Joined in Spiritual Union

What to do with the House of Lords is one of the great constitutional questions – it has been asked for over a century. In this four-part series of posts I’ll look at the prospects for getting something approaching an answer in the next few years, and I’ll expand on a little on what I think the answer should be.

Part 1: The Harder the Conflict, the More Glorious the Triumph?
Part 2: Form and Function… Joined in Spiritual Union
Part 3: We Are the People
Part 4: The Choice…

Form and Function… Joined in Spiritual Union

As the architect FL Wright once said, form and function should be one, joined in spiritual union. So it seems apt to look at what we want the House of Lords to do as well as its composition.

The Bryce Commission, which reported in 1918, was the first to take seriously the idea of the House of Lords as a revising chamber which wasn’t taken up by the wider political elite until much later in the century. That idea, that the House is there mainly to change and revise legislation, is core to the idea of what the House of Lords should be. It should consider all legislation for effectiveness, fairness and popularity and revise it to better achieve the government’s overall aims. Indeed, the House makes around two thousand amendments to government legislation per session, coming in at over a hundred per bill.

The failed conference of 1948 did propose an idea that has been echoed down the decades – that the House should complement the House of Commons not conflict with it. This has been expressed mainly through the Lords not repeating activities that the Commons does. For example, committees in the House of Lords cut across many departments rather than the traditionally narrower Commons committees. It also expresses itself in the fact that around 80% of amendments made in the Lords are accepted in the House of Commons.

But there is an older idea that the House of Lords should be a check and balance on an overmighty government in certain circumstances. The Parliament Act of 1911 gave the House of Lords the right to veto a bill extending the term of a parliament and the Constitution Committee of the Lords has taken up a role of reporting on bills affecting the constitution, often with highly significant and critical reports. Indeed, the House of Lords was critical in forcing the government climb-down over 90 days detention without trial. Once the House gets into a tizzy over its constitutional role, it can be difficult to persuade. Mixed in with this is the concept of the primacy of the House of Commons – the government, ultimately, should get its way if it cannot be persuaded by their Lordships.

The issue of representation often comes up, but the question is what would they represent? The devolved nations, like the United States? If we were federal, perhaps, but any upper house based on this would be utterly dominated by England unless you had incredibly perverse voting weights. Local government, like France? Possibly, but would there be much point? Our local government is not powerful by European standards and so few people vote in local elections. We could of course represent the people in general in the upper chamber, but to be meaningful it would need to be proportional representation and if there’s something wrong with our method of representation, shouldn’t we change the more important elected House to have that method? No, I think that in our current constitution there is little to no space for a different type of representation.

The question is how much the Lords should do of each of the three roles and how the people we choose to sit in the Lords will affect its role.

So, I’ve established what I want this House to do, how can this be best achieved?

For a revising chamber, I would want the House to be relatively independent of parties. It’s no good if we can’t rely on the chamber to revise legislation because the government or opposition leaders would rather it didn’t. There are a number of ways of ensuring this. First is to ensure no government will likely have a majority. This ensures that even if members aren’t independent within their party, the chamber can be relied on to sometimes take a differing view. Another is to ensure that members themselves are relatively independent of party. A combination of both would be best in my view.

Also, it strikes me as highly advantageous to ensure that expert knowledge plays a role in the legislative process in a revising chamber. One rather weak way of ensuring this is to ensure that plenty of committees of the House are out hearing from experts so that they make the information readily available to members more generally. But interested members don’t and won’t have enough time to read all reports, and may not even bring them up in debates. Plus, it means that if a committee doesn’t or can’t look at a topic in time, the House may not have the necessary information. Another way is including experts directly in the deliberation process, either by encouraging or ensuring members are experts or including experts as non-voting members. My preference would be for members to be experts simply because it is the more direct route and would help even if we failed to get a relatively independent chamber because they would be more likely to lobby behind the scenes for their expertise, but there are obvious difficulties in ensuring that.

So now we have proposed that the chamber can disagree with the government. The idea of the complementary chamber rather than the conflictual chamber is a careful balancing act of how much they will push the issue once they disagree. I think that members of the upper house will act precisely as they feel they legitimately can. If during ping-pong, where the two houses negotiate over their versions of a bill, a member disagrees with the government over a bill, but doesn’t feel he or she is legitimate enough to force the issue again, he or she may abstain, vote for a compromise or even vote for the government’s position. That’s not a bad thing in and of itself, but where do you draw the line?

Given that the House of Lords wins at least a concession 40% of the times it disagrees with the Commons (in the last parliament – it may well be less now), we might wonder what the appropriate threshold is. The Australian Senate, a strong upper chamber that still recognises it cannot dictate everything to the government, wins at least concessions up to 80% of the times it disagrees using the same measurement. I personally would like something in between, but the exact point is hard to decide and finding a method that achieves that on a stable basis is even harder.

There is also the matter of the Parliament Acts. In the UK, unlike Canada or Australia, the upper chamber is limited in its powers. It cannot even amend money bills and if the government encounters significant opposition in the Lords, it can invoke the Parliament Acts to pass almost any bill as the Commons last agreed to it if they wait until the subsequent session. Now, while this is a good thing and I don’t think I would like to have an upper house which could ever defeat a budget and force an election or change of government it does mean that there is a risk of deadlock for the first year of legislation being scrutinised and then the regular response of the Parliament Acts being used for Lords amendments.

That would undoubtedly make Britain, as Vernon Bogdanor says, harder to govern. They might even engage in what Meg Russell calls Mandate Wars – arguments based on who’s more legitimate. And if politics shows anything, it’s that people will argue their case even when it’s fatally flawed. Even if the Lords is objectively less legitimate with only 80% of members elected as in the proposals, members might only see it in terms of ‘I’ve been elected by proportional representation and you’ve not’.

There is a connected case for giving a few more exceptions in the Parliament Act for the Lords to have a veto over, perhaps including bills with amendments to the Parliament Acts themselves! Some academics proposed to the Constitution Committee that the Lords take a role in safeguarding the constitution, and one way of doing that is to give an exception for constitutional measures in the Parliament Acts. The difficulty comes in defining them, although I’m sure their Constitution Committee could have a good stab at it.

The general consensus amongst peers is that the Lords in the last parliament was just the right amount of strong, but many Liberal Democrats and some members of all parties would like a more legitimate and powerful chamber. In fact, many Liberal Democrats would like a more legitimate chamber full stop. The public in general would also like a more assertive upper chamber, but their views on the House of Lords in general are rather contradictory and if we’re honest it’s not a subject many of us give much thought at all. The public want an independent, elected, expert upper chamber. Those attributes don’t often go together well.

The last post in the series will have the rather interesting task of deciding how to choose people best suited to do all that.

Next time: We Are the People

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