House of Lords reform: the Lords are speaking – is anyone listening?

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[First Published on Sunday 11th July 2010]

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 It contains facts and opinions which may have been superseded by subsequent events.

On the 29th June 2010, an epic debate took place in the House of Lords on the subject of reform of the House.  The debate, which arose as a result of a motion by Lord Steel of Aikwood (Liberal Democrat), was introduced by the Leader of the House of Lords, Lord Strathclyde (Conservative), who announced that he would establish a Leaders’ Group, chaired by Lord Hunt of Wirral to consider and draw up a draft bill for reform.  Although this marks the beginning of what are arguably the most extensive set of works ever on the form and composition of the House, with potentially profound constitutional impact, the debate has been largely ignored by the press.  The significance of the issues are not, however, lost on the Lords themselves, who attended the house in large numbers to express their views, with a total of 65 peers speaking in the course of the 8 hour debate, which continued long into the night.

The principle motion under consideration ran as follows:

That this House calls on Her Majesty’s Government, notwithstanding their proposals for Lords reform whose legislative timetable is unclear, to table Motions before the Summer Recess enabling the House to approve or disapprove:

(a) a scheme to enable Members of the House to retire,

(b) the abolition of by-elections for hereditary Peers,

(c) the removal of Members convicted of serious criminal offices,

(d) the creation of a statutory appointments commission.

These four issues were originally slated for consideration in the Constitutional Reform Bill of the previous administration, but were expunged from the bill as part of the many compromises reached to see pending legislation through in the ‘wash up’ immediately prior to the dissolution of parliament and the general election.

Although the issues set out in the motion might be regarded as relatively minor in the overall scheme of House of Lords reform, it was almost inevitable that the subject of the debate would range wider and deeper, especially in view of the fact that so many peers requested to speak on the matter.

The debate should be viewed in the context of  ‘The Coalition Agreement’, published by the Government on 20 May 2010, which  stated that a Committee would be appointed to bring forward proposals for a wholly or mainly elected House of Lords.  That Committee, consisting only of front-bench spokespeople from the three main political parties, is to prepare a draft Bill which is to be published by December 2010.

The debate brought forth harsh criticism of a process of reform, whereby a draft bill is the starting point, even before there has been discussion as to whether and what manner of reform should be brought forward.  Moreover, the fact that the Lords’ committee to be established to draft such a bill comprises only representatives from the lead political parties drew a stinging attack from Baroness D’Souza who commented,

“I wonder what consensus means, or what kind of consensus is concerned with talking only to those who already agree to your plan. That is no way to rewrite fundamental parts of the constitution of this country.”

The issues were wide-ranging and encompassed many of the arguments arising from proposals to reform the House in general and the move from an appointed House to an elected House in particular.  Whilst there is far from a uniform consensus among their Lordships about the need for reform and the form it should take, it was manifestly clear that the majority of the House have grave misgivings about the wisdom or necessity of moving towards a wholly elected House, and the consequent strengthening of the hold of political parties and the emasculation of crossbenchers. These may have been the first words on the proposals for reform of the House, but they are unlikely to be the last.

There are clearly profound concerns in the House regarding proposals for reform; the frustration of many was summarised by Lord Grenfell who stated,  

“I have to confess that I am somewhat irritated by the fact that we are invited to take note of the case for reform of the House of Lords,  as though that were on the coalition’s agenda. It is not. What is on the agenda is the abolition of the House and its replacement with something entirely different.” 

The debate begs the question of whether reform needs to be so dramatic, or whether we can continue the “steady incremental and non-revolutionary development of the UK’s constitutional framework”which, in the view of Lord Birt (Cross), “sets us apart from other countries” ?

To find out more about the House of Lords and reform proposals see here.

 

The debate summarised:

The first step should be to go back to first principles

  • A number of Peers, such as Lord Rooker (Labour), Lord Waddington (Con) and the Archbishop of York (Bishop), urged us to go back to first principles, and consider what the role and functions of the House are and should be.   
  • Lord Campbell (Con) even went as far as to call for a debate as towhether a second chamber is desirable at all (although he admitted that almost definitely people would be in support of one).
  • Some attempted to define this role. Lord Bilimoria (Crossbencher) described the House as  the “guardian of the nation”, and the Archbishop of York emphasised that it should encourage freedom of expression and thus itself should be free from political pressures.
  • Others described it as being an advisory chamber which ensures that legislation meets the highest possible standard (Lord Grenfell, Lab).
  • A number of Peers sang the House’s praises, Baroness Miller of Hendon (Con) deeming it the finest revising chamber in the world.

The reasons for reform need to be established

Even if consensus on the purpose of the House can be reached, one must also establish good reasons for reform.  Some believe thatbecause a commitment to significant reform – moving from an appointed to elected House – was set out in all three main parties’ election manifestos, there is a public mandate for reform to be pushed through.

  • Others, such as Lord Grenfell (Lab) and Lord Rodgers (Lib Dem), do not see this as convincing as they contend that the public don’t fully understand the consequences of change, and even if they did, reform of the House consisted of just 2.5 lines in the Conservative manifesto, and only a paragraph in the coalition document (which is 300 pages long).
  • Furthermore, perhaps it is not a priority for the public, who are more concerned simply about the dominance of the executive in the Commons (Lord Howarth, Lab).
  • Others cited a fall in public confidence in Parliament as a proponent for change (Lord StrathclydeViscount Eccles, Con).
  • Lord Kakkar (Cross) warned that reform must be implemented at the right time for the right reasons, and not simply to ease tensions in a coalition government.

Is the House of Lords ‘democratic’?

An overriding argument that persuades many that reform is essential, is the contention that the House is ‘undemocratic’ and therefore lacks legitimacy.

  • The Earl of Onslow echoed the sentiments of some Peers, that since peers are unelected, the House has no legitimacy.  Furthermore,Lord Brooke (Lab) argued, as the House is not directly accountable to the public, it cannot be considered democratic 
  • Lord Norton (Con) disputed both of these notions. He agreed thatdemocracy requires accountability, but posited that the House of Lords maintains this by providing an important check on the Commons and the executive.

He also argued that the House is legitimate, by virtue of the fact that it has an especially qualified membership; the legitimacy of the House of Commons derives from elections, but this is not the only way to establish legitimacy.

The logic of this argument was neatly summed up by Lord Grenfell who said that, “our true legitimacy lies in what this House achieves”.

  • Lord Higgins (Con) conceded that the House is not democratic but contended that it does not need to be, because our democracy as a nation is present in the fully elected House of Commons, and there is no necessity for it to be present also in the House of Lords.

Wholesale reform is not necessary

  • Lord Howe (Con) argued that there was a total lack of evidence justifying a change on this scale.
  • Baroness D’Souza (Convenor of the Crossbenchers) asked why the recent reforms, such as the House of Lords Act 1999 and theConstitutional Reform Act 2005, which are very effective, aren’t enough in themselves.
  • Lord Bilimoria argued that “what is needed is further evolution, not revolution”.

Many of their Lordships appeared to agree that shortcomings of the House could be adequately dealt with by minor reforms, such as those outlined in the motion of Lord Steel, without the necessity for wholesale reform.

  • Baroness O’Cathain (Con) suggested that a post-legislative scrutiny committee should be set up and Lord Goodhart (Lib Dem) proposed that titles should be abolished, along with fancy dress at state openings.

The reform which seemed most important to many Peers though, was putting a limit on numbers, as the number of peers entitled to sit in the House is rapidly approaching 800 

Lord Strathclyde announced he would be setting up a Leaders’ Group to look at these and other suggestions, and peers suggested possible solutions such as voluntary retirement (Lord Steel), havingmaximum periods of service (Lord Howarth, Lab; Lord Cobbold, Cross), or simply setting restrictions on the appointment of New Peers(Baroness O’Loan, Cross) perhaps by the creation of a statutory appointments commission.

Arguments in favour of retaining an appointed House

  • Lord Bilimoria emphasised that appointment brings a wealth of diversity, objectivity, experience and expertise into the House, andLord Denham (Con) gave the example that when animal lobbying became important in the 80s, they were able to bring a veterinary surgeon into the Lords and thus to expand the range of skills available on an ‘as required’ basis 
  • Baroness O’Loan argued that appointment has lead to a very high standard of debate.
  • Lord Howe pointed to the high levels of attendance in the House as an achievement of the current system.

Other advantages noted were that appointed Members have no constituency pressures to distract their focus from the Chamber, and that they are able to consider long-term strategies where required (e.g. for climate change) as they are not subject to an electoral cycle.

Shortcomings of the House in its current form

  • Lord Richard (Lab) asserted that though the quality of debate is extremely high, the House of Lords is rarely listened to by the Commons as it is “capable of being ignored”, and Lord Cope (Con) argued that the “ping-pong” of amendments always ends up going in favour of the Commons, as the Lords gives way.
  • Lord King (Con) was quick to defend the Lords, citing the example of whe n its intervention prevented 90 days detention without trial.  
  • Lord MacLennan (Lib Dem) also noted that in the last 5 years 40% of amendments put forward by the Lords against the original advice of government, have been accepted.

Another criticism of the House was that it has not excelled recently in holding the executive to account, allowing the executive to spend and legislate excessively (Lord Strathclyde).

Merits and demerits of an elected House

In order to solve these perceived shortcomings,  moving to an elected House of Lords is suggested. Lord Richard simply believes that legislators should be elected by those affected by their legislation.

The Peers considered this proposition and others while attempting to ascertain whether elections would help eliminate the perceived weaknesses of the House. Lord Grenfell argued that moving to an elected house will not solve the crucial problem: a lack of power given to the Lords, in comparison with the Commons.

  • Lord Cope contended that this lack of power arises merely because it is not elected.
  • The Earl of Onslow emphasised the need to rebalance power between the Commons, the Lords and the Executive, and suggested that the House of Lords should have the power to throw out bills, but when it does so, an election should occur to let the people decide.
  • However, Lord Rooker (Lab) and Lord Morris (Lab) were among those who feared such an increase in power, reasoning that an elected House would use all the powers – such as legislative delay – that the current House chooses not to use.
  • Furthermore, Baroness D’Souza and Lord Waddington asserted that this increase in power would lead to conflict and stalemate between the two chambers (although this was contested by Lord Desai, (Lab) who pointed to other bicameral models where both houses are elected, and still manage to solve the conflicts that arise).
  • If elected, the House of Lords may simply become a replica of the House of CommonsLord Low (Cross) asked, “where is the added value in a pale imitation of the House of Commons composed of people who could not get into the House of Commons?”
  • Lord Mayhew (Con) agreed with the idea that the Members of the Lords would be those who would rather be in the more powerful House of Commons.
  • A further concern was that in an elected House the breadth of expertise of the Lords will be lost, as individuals such as academics, Nobel Laureates and leaders of industry, all of whom are currently represented in the House would be unlikely to be willing to take part in electioneering (Baroness Miller of Hendon, Con).
  • The impact of political parties would arguably also increase considerably, as parties would be likely only to back candidates for election who act along party lines (Lord Pilkington, Con).
  • Baroness D’Souza also noted that this would likely mean an increase in the power of the whips
  • This increase in party influence would also mean that the highly valued crossbenchers would be lost (Lord Walton, Cross).
  • In any case, as the Archbishop of York pointed out, the House of Commons is elected but does no better at holding the government to account or properly scrutinising legislation.
  • An elected House would also cost more, as Members would need to be salaried and also have offices within Westminster (Lord Steel), and Lord Wright (Cross) estimated that this cost might be 3 times higher than the cost of the House as currently constituted.  He also emphasised that all current conventions involving the Lords would be totally changed with an elected houseLord Morris (Lab) argued that there are already too many elections for the electorate to take part in.

The process of reform

The issue of the process of reform was also at the heart of the debate.Lord Norton warned that our constitution by nature is a complex interlocking system, and we must be aware that change in one area can have serious consequences on other areas. Therefore the way that reform is tackled is as crucial in the decision-making process as the question of what reforms should be implemented.

  • Lord Strathclyde announced at the start of the debate that a cross-party committee on House of Lords reform has been set up by the Deputy Prime Minister, with an aim to produce a draft bill for an elected House by the end of the year.
  • The concerns of the Peers about this Committee were two-fold. The first was that the Committee does not include a single backbencher (as pointed out by Lord Barnett, Lab) or a single crossbencher (Lord Hannay, Cross), notwithstanding the fact that most of the dissent on matters of reform comes from these two constituencies.
  • Lord Strathclyde argued that the draft bill should be the product of a consensus between parties who support the principle of an elected House.
  • Baroness D’Souza responded by saying, “I wonder what consensus means, or what kind of consensus is concerned with talking only to those who already agree to your plan. That is no way to rewrite fundamental parts of the constitution of this country.”
  • The second concern is that too many fundamental issues have not been decided by the House before the bill is drafted. These include reaching a consensus on the precise role of the House, whether it should be wholly- or partly-elected (Lord Steel), what transitional provisions would be put in place (Lord Richard) and whether reforms will be put to the public in a referendum (Baroness Royall, Lab; Lord Inglewood, Con; Lord Brooke).
  • Lord Faulkner (Lab) asked how the government could pursue the drafting of such a bill when the last vote on the subject of reform in the House of Lords saw Conservative peers voting 6 to 1 in favour of an appointed House.

Parliamentary material is reproduced with the permission of the Controller of HMSO on behalf of Parliament

The verbatim Hansard report of the debate may be viewed here.

 

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.