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.
We Are the People
You’d think legitimacy would be simple to define? Not really. Using David Beetham’s tripartite definition as renamed by John Parkinson of legitimacy as legality, justifiability and consent. Legality is abiding by rules, conventions and regulations. Justifiability is a combination of the source of authority and the reason why the authority has power. Consent is whether the people consent to the authority.
Since the House is being redefined by statute, legality is not an issue here. For justifiability – how much justifiable power can the House of Lords have and where does it come from – much of the House of Lords’ legitimacy at the moment comes from the fact that its powers are defined in statute, that they see themselves as keeping the government on the straight and narrow, that for much of the last decade their composition was more proportionate than the Commons, and that the Lords uses its expertise (IE that the quality or other aspects of its output justifies its power).
Most people, I imagine, would agree that the House of Lords becomes more legitimate as it gets a more legitimate source. So getting rid of the bishops and the old hereditary peers would presumably have a small impact on the legitimacy of the House because religion and heredity are seen as less legitimate sources than plain appointment. That was the intention of the proposals of Harold Wilson’s government in 1968 that ran aground (though the proposals only reduced the bishops to 16).
Making the existing system of appointment more independent and robust would certainly make the newer peers more legitimate, and some of that confidence might filter through to the existing peers appointed under the old system. This is similar to the proposal by former Liberal leader and peer Lord Steel of Aikwood in his private members bill in the House of Lords (though he doesn’t deal with the Bishops either).
The next step up would be indirect election where members of one or more other elected body/ies, such as councillors, devolved representatives or even MPs, elect the members of the upper chamber. Certainly it would increase their legitimacy, but safeguards would have to be included to secure their independence (for which I direct you below). This cropped up in the Bryce Commission’s proposals where MPs were supposed to elect some of the Lords from the ranks of the hereditaries for a limited term and was mooted during the resolutions of 1922 and 1927 but hasn’t been the subject of major proposals since.
The most legitimate class of selection would, of course, be direct election – the people in a vote decide who to put in the Lords. There is a wide selection of methods to do this, but the more legitimate ones are probably those that reflect the public will closest. If its truly proportional, then neither STV nor Party List would, in my view, be necessarily more legitimate. But First Past the Post, for example, would in these circumstances be less legitimate than STV or Party List.
The last option worth referring to is the hybrid chamber, consisting of some mix of the above options. Most of the proposals have been hybrid ones, and while overall the legitimacy could be less than a fully elected chamber, depending on the proportion that might not have a practical effect. Members will think of their legitimacy in their own terms not that of their peer sitting three rows down from them. If 80% of peers are elected, they’re hardly going to hold back because the 20% of them who aren’t are wavering.
These all come with the caveat that the public consent to the resulting upper chamber. If the public were to be faced with a referendum on the issue, would they let it pass? It’s an incredibly difficult question to answer since I really don’t think people generally think about the powers and composition of upper chambers. The polling is contradictory and unhelpful except in the broadest terms.
But such systems of choosing people are not even half the issue when it comes to making incentives for members to be legitimate, independent and expert. To ensure independence you need to remove as many of the party’s levers of power over candidates as possible.
Political independence, for me, is where candidates are able, from selection to resignation, to defy their party leader if they feel it is necessary without being punished for it. A candidate should feel they owe their selection or election to something other than their party bureaucracy. If they’re parachuted into a safe seat, then that’s hardly going to make them feel in debt to the public so much as the party. Open primaries for candidates can do this, as can more open forms of election. A very open party list system (where candidates are listed by party and people can vote for the party or a candidate or number of candidates to decide their order on the list – in this system when party A gets 20% of the vote, 20% of its candidates, as decided by the electorate, get in) can do the same job – the last evidence I saw, from the 90s, showed that open list Finland had a rebellion rate five times higher than the UK; I believe 11% of votes cast were rebellious ones and candidates used their independence as a reason to vote for them.
Once they are elected, the chamber they are in shouldn’t be incentivised towards toeing the party line. Places on committees, speaking opportunities, voting, foreign trips, etc, should all be determined firstly by members and not party whips or leaders. For the House of Lords, these are not too much of a problem. A Selection Committee with a majority of party leaders and whips exists, but has plenty of backbenchers too and the committee is fairly relaxed about rebellious backbenchers getting on committees.
When they come up for reelection the purest form of ensuring independence is to simply not let them. Give them one term and that’s their lot. This can be disadvantageous in other ways (see the sections on expertise and democracy below) so to maximise independence if they can stand for reelection, candidates should automatically get reselected for their party’s candidacy if no one objects and an open primary if another person wants to be the candidate.
As for encouraging independents to stand, while some electoral system make it easier for them to win (STV comes to mind), much of the time it requires a lot of voter discontent with parties to make it happen. Even in Ireland with STV at the height of the economic collapse there, only 10% of the Dail is independent. It’s a lot in elected terms, but the House of Lords was around 30% independent at one point.
The public like independents and people with expertise and experience. Polls say so. But given the choice, they like their preferred party’s candidate more. Which doesn’t really help us if we want to bring experts directly into the legislative process.
There are a number of ways of encouraging experts to get appointed/stand for election, even if it isn’t reliable that they’ll get in. You can encourage people with expertise to try to stand for election/selection under a party banner and encourage party leaders/constituency associations to select them as candidates/appointments, but they need naturally self-interested politicians and parties to pro-actively engage with experts. I’m not sure how likely that is to happen.
Sometimes people suggest election from within and perhaps by the membership of the royal societies, institutions, chartered bodies, etc. This would provide a good degree of expertise and has potential – but might that be too inflexible? I would certainly miss the former diplomats, civil servants, charity execs, etc and the suchlike who aren’t part of those groups. A partial solution might be to open the suffrage to more groups but imagine the prospect of such bodies lobbying to be included in the electoral college for the Lords.
I would say that the much more flexible and independent House of Lords Appointments Commission has done a good job of identifying experts and recommending them for appointment. We don’t see who they’ve rejected of course, but the quality of their selections so far has been extremely high. Their chair, Lord Jay of Ewelme, has suggested that he could have proposed many more peers if the convention limiting the number of appointments made was increased or lifted. It could easily be put on a statutory footing and the chairmanship of the commission could be a joint appointment by government and parliament with a vote in the Commons before appointment.
Next time: The Choice…