Lords Reform 4: The Choice…

What to do with the House of Lords is one of the great constitutional questions – it has been asked for over a century. Since this coming year promises to be the one where Lords reform truly gets under way, I’m writing a four-part series of posts looking 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…

The Choice…

Now, we have before us a veritable smorgasbord of options. Legitimacy overlaps slightly with expertise and for both I’ve put down a sliding scale. For independence, there are so many options, I’m going to simply pick and choose from them all rather than examining variations on each. Let’s codify some of the possible options and proposals.

The Status Quo

Not so much a choice as a possibility – some party executives, the Labour party particularly, don’t want to see any reform unless it is their 100% elected reforms. If the government’s House of Lords Bill either is voted down or can’t be agreed between the two Houses and the Parliament Acts aren’t used, this is likely to be what we end up with. A House without a limit to membership currently around 800 lords, 26 of whom are the bishops of certain dioceses and the longest serving bishops, 92 of whom are elected from and by the hereditary peers in their party groups, around 10 a year are appointed by the independent House of Lords Appointments Commission and the rest are appointed by party leaders. All apart from the bishops, who serve while they are in office, serve for life.

There are many experts in the House, but also many politicians and party loyalists rewarded by party leaders. Peers are independent in every way except for their selection if they’re party peers – they can’t even resign.

The Steel House

The House of Lords Bill proposed by Lord (David) Steel of Aikwood for the last four years (and which has wide support in the House of Lords) proposes a gradual transition where all new peers to the House are appointed by the House of Lords Appointments Commission and parties merely propose peers who have to be vetted to ensure conspicuous merit and any other criteria it deems appropriate (subject to parliamentary approval). The Bishops remain, but the 92 hereditary peers will not be replaced when they die. Members will be able to resign, and the Appointments Commission should appoint peers to maintain the hung chamber and at least 20% crossbench members.

This is more legitimate than appointment by party leaders in my view, and the loss, albeit delayed, of the hereditary peers is going to at least marginally increase legitimacy. This increases the independence (taking away the automatic right of prime ministers to propose party peers) and perhaps expertise (prospective party peers must show conspicuous merit) of the House too.

The Clegg-Coalition House

The government’s draft House of Lords bill, being steered through parliament by the Liberal Democrat leader and deputy prime minister Nick Clegg, may well change after the joint committee report is considered, but until then I’ll look at it as published. Nick Clegg’s draft bill proposes a House of 312 members, 12 of whom are bishops, 60 of whom are appointed by the House of Lords Appointments Commission for three parliaments lasting at least two years (typically fifteen years), and 240 of whom are elected by the Single Transferable Vote in thirds for three parliaments lasting at least two years (typically fifteen years). Members cannot be re-elected/appointed.

This is a hybrid House of 80% elected to 20% appointed members. This would vastly increase the legitimacy of the House, probably at the expense of the expertise of general members (as opposed to the 20% who would still be the most expert). The independence of members is slightly increased thanks to the open election system.

The Clegg-Liberal Democrat House

Despite Nick Clegg’s proposals, Liberal Democrat policy is to have a 100% elected House, by Single Transferable Vote. Beyond that, they haven’t specified their preferences for term length, whether they can be reelected or how much of the House will be up for reelection at any one point. Because of this, I’ll assume they are happy with the rest of the proposals: a House of three hundred, terms of three parliaments, non renewable, elected in thirds.

This is perhaps slightly more legitimate than the Clegg-Coalition House, however little difference there might be in practice, but is less expert and less independent (since more members will take a party whip).

The Straw House

Labour’s Jack Straw, then Lord Chancellor, authored proposals for Lords reform before the last election for a 100% elected House very similar to the Liberal Democrat proposals but with an Open Party List rather than Single Transferable Vote. Labour has now changed its mind and doesn’t support single, non-renewable terms but beyond that they haven’t really articulated any other changes. The prospects for independence and expertise are thus lowest in Labour’s model of an upper house, though legitimacy is equal to the Liberal Democrats’ version. An important distinction between Labour and the others is that they want a referendum before any reform takes place.

The Independent, Expert and Elected House

Say we went full-on for all three options – a one-hundred percent elected House, with candidates pre-vetted by a suitably renamed House of Lords Appointments Commission for non-renewable fifteen year terms? It’s certainly possible. There are arguments to be had about how democratic such a House would be (but then again, there are arguments about how democratic any of these proposals are, bar the Labour one perhaps which has big drawbacks in and of itself). There are even some who say that to maintain the democratic accountability of government, you must have an un- or indirectly elected House.

But which is best?

As always, it’s a subjective thing. Some people don’t care about expertise, but really want elections, Others really don’t want elections and want independence, etc.

As a personal choice, I’m not certain direct election would be quite the boon many suggest it would. We wouldn’t end up with an Australian-style political system with complete gridlock on certain issues simply because our upper chamber can be overruled on primary legislation after one session (usually a year). We’d have our own type, because on statutory instruments the House of Lords cannot be overruled and often legislation is brought into force by statutory instrument*. What we would have is pointless delays, chaos over bringing laws into force and probably an ongoing (and pointless) campaign to increase the powers of the Lords from their end.

Undoubtedly, a very assertive upper chamber would make the UK harder to govern for a time – not a bad thing in and of itself, but if the majority of parliament is elected on a platform and finds it can’t implement significant parts of it then we should worry. And ministers will worry too. They will no longer be able to get controversial government policy through parliament without the Parliament Acts. It has echoes of the decline of the House of Commons into the Blair years. Before then, the opposition’s control of time was used by the opposition to extract some concessions from government. It was abused in the 90s and the formerly rare use of time allocation (then a nuclear option) became routine with the invention of programming motions under Tony Blair. The Parliament Acts, currently a legislative nuclear option, could well become routine. Like government control of time, once regular use of the Parliament Acts becomes politically acceptable under normal circumstances politicians will use it. Something similar will probably happen with bringing legislation into force, and parliament will lose its nuclear option there too.

This would effectively neuter the Lords and as one of the few places where the government can be challenged and defeated that would undoubtedly be a bad thing. It makes much more sense to me to strengthen the House of Commons if we want to have a check-and-balance chamber for normal policy rather than reform the House of Lords to do a task it’s not designed to do which, ultimately, could leave it with no task it can do successfully.

My preferred reforms would be the Steel House, perhaps with terms for peers rather than for life and the eviction of the bishops, whose automatic presence doesn’t seem to noticeably benefit any of the criteria I specified before – though, of course, if they believe they have the merit they could apply to the Commission. In a similar, but more substantial, way to the Councils of State that appear in Europe it can be a great help in making laws and I wouldn’t like to lose that. If we want a check-and-balance chamber (which I do) it would be better to create one in the House of Commons.

*There was a debate (not brought to a vote in the end) only last month to annul a statutory instrument which brought into force a controversial piece of legislation on allowing civil partnerships for gay couples in Churches. That could become a regular occurrence, and they might well defeat the government in such a situation.
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2 Responses to Lords Reform 4: The Choice…

  1. jedibeeftrix says:

    “Some people don’t care about expertise, but really want elections”

    I am the opposite of that, caring about the expertise and the role, not too bothered how we acquire those experts.

    Great post by the way.

    Personally, i favour the coalition proposal, and while I am perfectly willing to accept that the coalition has leapt to the end stage of deliberations on lords reform; how you select the people whose roles, power and qualifications remain as yet undetermined…………. but, it does appear that the legislation has given a great deal of thought on how to hobble the inevitable challenge.

    All the announced characteristics of the reform work to minimise any democratic mandate which a reformed Lords might use to legitimise its temerity:

    1. Single 15 year terms (not accountable)
    2. 20% appointed (less democratic)
    3. 300 members (less granular representation)
    4. No direct constituency link (less certain mandate)
    5. By having a rolling introduction of one third newly elected every
    parliament, combined with the fifteen year terms, there will continue
    thereafter to be only one third elected at each and every parliamentary
    term. Therefore there will never be a case where the lords can claim a
    national mandate from the people.

    This, of course, is not to say that such a challenge isn’t inevitable
    regardless, nor too is it to suggest that they would be effective in their role as a revising chamber, but the threat to the supremacy of the Commons should be eminently manageable.

    My gut feeling is that these proposal will go ahead in 2014, if only because it will give the coalition five years to stuff the lords with new appointments leaving them with a declining advantage in the lords for the next fifteen years until the last tranche of the appointees are replaced by the third lords election in 2025, a benefit that labour can never receive even if they win in 2015 as the system of elections will already be in place.

    • pp549 says:

      First off – thanks! Much appreciated to get some feedback.

      On point 2, being only 80% elected, I can’t imagine that one of the 80% will be less confrontational because one of the 20% across the aisle isn’t elected. In the vast majority of cases, the 80% could swing the vote. Look at the Conservatives and Liberal Democrats now – the government wins votes 85% of the time.

      As to the rest (which all related to the method of election), you’re quite right that objectively they’ve got less of a mandate. I just don’t think that elected senators will think in those terms.

      If you look at where we are now with mostly appointed members, in the last two years peers have inflicted 45 defeats on the government including many which strike at the government’s flagship deficit reduction program, essentially filibustered a bill, refused to back down on their amendments quite a lot (still waiting for the stats on that to compare, but remember the Welfare and Legal Aid bills have had/likely will have quite a ping-pong), and threatened to veto an act coming into force.

      There are those in the government who already see the Lords as abusing their powers (Ken Clarke went on record in his Great Offices of State speech which is worth a watch if it ever comes back onto iPlayer) and MPs are very worried about the loss of their ‘primacy’.

      That’s when they have no mandate whatsoever.

      Give them a proportional electoral system arguably more legitimate than that of the Commons and a single-party government, and their subjective legitimacy will go up. And thus so will their assertiveness.

      Objectively, there may be no threat. But like with the regular use of programme motions in 2000, if the perception spreads that the Lords are overreaching themselves I fear that the Parliament Acts could become routine and the Lords greatly neutered. I may expand on this is another post.

      As to the bill itself, it’s entirely possible it could go through. A lot depends on Tory MPs. If it does, then yes, it will be in 2014 if it requires carry-over. It’ll probably require the
      Parliament Act unless peers get a lot less angry about this. Interestingly, Schedule 8, the part that stops the prime minister’s powers of appointment to the Lords, only comes into force when the government wants it to. Isn’t that a coincidence? Plus, the government can appoint as many ministerial members as it wants anyway. All that will stop it is the fact it’s politically unacceptable.

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