House of Lords Reform: The government’s draft bill ducks the crucial constitutional questions

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[First Published on Tuesday 9th August 2011]

This archive item is a window onto issues as they appeared at the time. It contains facts and opinions which may have been superseded by subsequent events.

The following excerpt is taking from the Constitution Society pamphlet, The End of the Peer Show?, available to download here.

Nick Clegg’s proposed reforms to the House of Lords do not represent a new movement; there have been proposals and incremental reforms of the Lords for the past 100 years. The Leader of the Opposition in the House of Lords, Baroness Royall of Blaisdon argues that the current bill is ill-considered, and that it, through the introduction of elections, will significantly undermine the primacy of the House of Commons.

Reform

Reform of the House of Lords is 100 years old this year. At this moment, the coalition government is bringing forward its proposals to transform the current House – in effect abolishing it, according to critics of the plan – by finally making the election of its members the basis for the bulk of its composition.  An elected House of Lords has been the dream of many on the left for the past century – though some on the left, let alone the other parts of the political spectrum, believe this is an unthinking dream which will in fact debilitate future Labour governments.  The arguments are familiar.  Will the Conservative-Liberal Democrat coalition end them, by securing a change which has evaded constitutional reformers since 1911?

The House of Lords is sometimes castigated as resistant to reform, with members of the House characterised as roadblocks to reform.  In fact, the House of Lords has seen real, repeated reform: in 1911 with the removal of its fiscal powers and the shifting of its right to veto to a right of delay; in 1949 with further changes to its delaying powers; in 1958 with the introduction of life peerages; in 1963 with changes to peerage succession; in 1999 with the removal of the majority of hereditary peers; in 2004 with the separation of powers between the legislature and the judiciary with the ending of the Lords as the final court of appeal and the establishment of a new Supreme Court.  These are evolutionary changes; regular, repeated reform.

Of course, for some, this run of reform is too slow.  Some want further reform, faster reform.  But the House of Lords is an important part of the checks and balances of our constitution.  There are complex and thorny issues involved – issues which merit careful consideration.

In all this, where is the public?  A familiar and probably entirely true point made by many MPs and ex-MPs, from all parties, is that at no point, over many years’ campaigning, did a single voter questioned on the doorstep ever mention reform of the House of Lords.  Reshaping our constitution, getting the process and the institutions right, including the House of Lords, is undeniably important.  But such reform does not rank high in the public’s priorities.  The outcome of the referendum on the Alternative Vote could not have demonstrated that more clearly.

The public’s concerns remain constant: jobs, the economy, health, education, crime, immigration – prospects for their own future, and the future of their children and families and communities.  Politicians, academics and commentators who concentrate on issues like constitutional reform more widely, and in this case further reform of the House of Lords, need to remember that.  That applies in particular to members of the House of Lords.   We have a proper working job to do, on all sides of the House: scrutinising government legislation; holding the government of the day to account; and debating the issues of the day.  The House of Lords must be about more than House of Lords reform.

The Parties

My party, the Labour party, has long been committed to reform of the House of Lords.  In 1910, our manifesto shouted (the capital letters are from the original): “THE LORDS MUST GO”.  In our 1945 manifesto, we said: “We give clear notice that we will not tolerate obstruction of the people’s will by the House of Lords.”   In 1964, our manifesto said: “We shall not permit effective action to be frustrated by the hereditary and non-elective Conservative majority in the House of Lords.”  In 1997, our manifesto said: “The House of Lords must be reformed”, and in 2010, we proposed “further democratic reform”, to be achieved in stages, with the promise to put such proposals “to the people in a referendum”.That was the case I argued as a member of the so-called Clegg Committee, an informal Cabinet Office committee set up under the chairmanship of the Deputy Prime Minister, Nick Clegg, following the formation of the coalition government after the inconclusivbie result of the 2010 general election.  Labour decided to take part in the committee’s work.  I believe it was right to do so.  It was an unsatisfactory process.  The committee was charged with bringing forward a Bill.It did not do so.  In its meetings, many of the most tangled, difficult and intractable issues around the question of further reform of the House of Lords were either only cursorily considered, or not considered at all.  Nick Clegg gives the impression of being a man in a hurry.  Perhaps understandably so. Despite measures like declaring early on in their term that the next general election would be in 2015 and following that up with legislation for fixed-term parliaments, Clegg has no real idea when the coalition will extend to, he may need to be in a hurry.

Accordingly, Clegg pressed ahead through the committee for reform, but in doing so, did not secure the support of the cross-party participants for what he eventually brought forward in May 2011, six months after the final meeting of the group. At no point did the Clegg Committee ever see and therefore endorse a draft Bill, or a draft white paper.  The Government’s draft Bill and white paper is not the product of the cross-party Clegg Committee.  It is a Government Bill.  Indeed, given its manifest lack of support from Conservative MPs and peers, and Conservative party members, supporters and voters, it is in fact a Liberal Democrat Bill (though it does not even have their unqualified support).  A survey by The Times newspaper in June 2011 showed Liberal Democrat peers, for instance, pretty close to being evenly divided not on whether the House should be 100 per cent or 80 per cent elected – but whether it should be elected at all.

Many Labour peers are clearly against an elected House of Lords. As Leader of the Opposition in the Lords, I know that, and recognise that, and respect that.

Many Labour peers, passionately believe that the introduction of direct elections to the House of Lords would damage the House, damage politics and damage the constitution – and, especially, would damage the prospect of future Labour governments successfully securing their own legislative programmes.

We may indeed have our differences over Lords reform, and in particular the question of direct elections.  But in gauging the response to the Government’s draft Bill and white paper, my own judgement is that Labour peers are united in their opposition to the Government’s Bill, because even for a Government apparently so wedded to bringing forward bad legislation which it then has quickly to revise that it is virtually becoming its specialist subject in politics, this is a bad Bill. I do not believe that it will achieve further reform of the House of Lords.  The processes and the politics which surround it will not, in the final analysis, allow that to happen.

Primacy of the House of Commons

Take, as a specific example, the assertion on the face of the Bill that nothing in the Bill affects the primacy of the House of Commons.  No matter how fervent such an assertion this is, it is no more than that: an assertion.  The legitimisation which election is designed to provide for the House of Lords in a modern democracy automatically places those elected on a similar – indeed, given the method of election (AV) and the length of the period of election (15 years), some would argue a superior – footing to those elected to the House of Commons.  In bringing forward the draft Bill and white paper, the Government has put Commons primacy in play.

The basic fact about all House of Lords reform is that its real impact is not, in fact, on the House of Lords, but on the House of Commons. For power to accrue to the Lords, for power to flow to the Lords, it has to flow from somewhere.  The power of elected MPs would be reduced by the power flowing to elected peers.  The Government’s Bill simply ducks these and other crucial questions about Lords reform.  What is the role of the House of Lords?  What should be the role of a second chamber?  What powers should a reformed House of Lords have?  What powers does the Government want a reformed House of Lords to have?  What will be the conventions which govern the relationship between the two Chambers?  What happens to the current conventions which govern the relationship between the two Chambers?  Should that relationship be codified?

Conclusion

These are big, fundamental questions.  They are questions with which constitutional reformers and successive governments have grappled for years.  What is simply not adequate, not sufficient, is to do what this Bill tries to do: simply to put them aside, as though they do not matter.  They do matter.  They are, and must be, at the heart of any proper attempt at further reform of the House of Lords.  They will have to be properly addressed, properly considered and properly resolved before any Bill to reform fundamentally the House of Lords either should or, in my judgement, would be enacted by Parliament.

Baroness Royall is the leader of the opposition in the House of Lords

This publication presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject.