Wednesday, 29 June 2011

The House of Lords Reform Bill

Hot on the heels of the 2000 Wakeham Report, the 2001 White Paper, the 2002 Joint Committee report, the 2003 parliamentary votes, the 2003 Joint Committee report, the 2003 DCA proposals, the 2007 White Paper, the 2007 parliamentary votes and the 2010 coalition agreement, the government has published its proposals for reforming the House of Lords.

The draft bill is a substantial piece of work, but the introductory notes that accompany it are somewhat flimsy and have the appearance of being drafted hastily, perhaps in order to throw Nick Clegg a constitutional bone following the No vote in the AV referendum. 

The basics of the proposals

The bill, if passed in something approximating to its current form, will not attempt to alter the name, powers or functions of the upper house.  This seems sensible enough.  The reformed composition of the House will inevitably impact on its behaviour and role in the legislative process, but it is probably better to allow such developments to unfold naturally rather than seeking to prescribe them in advance.

The bill accordingly contains the following clause:
2  General saving
(1)  Nothing in the provisions of this Act about the membership of the House of Lords, or in any other provision of this Act—
(a) affects the status of the House of Lords as one of the two Houses of Parliament, [no shit, Sherlock]
(b) affects the primacy of the House of Commons, or
(c) otherwise affects the powers, rights, privileges or jurisdiction of either House of Parliament, or the conventions governing the relationship between the two Houses.
As to the name, 'Senate' would have been the obvious candidate, though Cromwell rather unimaginatively called his second chamber "the Other House".  But the government is probably correct to conclude, as it does in its notes on the bill, that incorporating a change of name into the draft bill would be an unnecessary distraction.  There will be plenty of time to think about that sort of thing later.

The bill seeks to create a house of 312 members, of whom at least 240 will be directly elected and the remainder will be appointed on the recommendation of a 7-member statutory Appointments Commission (which will, in quis custodiet vein, be supervised by a joint parliamentary committee).  This will replace the current, non-statutory commission set up in 2000.

The heavy preponderance of elected over appointed members is unsurprising.  During the Blair years, government policy favoured a wholly or mainly appointed Lords, and this option was endorsed by the Wakeham Commission in 2000.  By 2005, however, both opposition parties had come round to the opposite position, and in 2007 the Commons voted by a large majority for an all-elected Lords.

After a transitional period, ministers will be normally be appointed from the elected members alone, though there is a curious power for the Prime Minister to appoint ministers who would then take seats in the Lords for the duration of their appointment.  This will allow future PMs to repeat, should they wish to do so, Gordon Brown's attempt to create a "government of all the talents" by conferring ministerial appointments on a mixture of non-party naifs and his political enemies.

The overall number of members is on the low side by comparison with the size of the current Lords (789) and the numbers suggested in recent reform proposals, but broadly in line with the sizes of the upper houses of France (343), Italy (315) and Spain (264).  It is a little lower than the current average daily attendance of the Lords (388 in 2009-10).

The non-round number of 312 was arrived at by the decision to retain "up to 12" of the current 26 Anglican bishops.  The retention of reserved seats for bishops can only be seen as an anomaly, a survival of the days when bishoprics had a political and economic importance comparable to that of the lay aristocracy.  If an appointed element is retained in the House, there would be nothing wrong in principle with appointing faith leaders to the new chamber (no doubt together with Senator Richard Dawkins).  However, reserved seats for the episcopate are very difficult to defend in the 21st century, and I wouldn't be surprised if they are either cut or cut out by the time the bill passes into law.  (Interestingly, the proposals have managed to simultaneously annoy both the pious Anglican Tory blogger Adrian Hilton and the British Humanist Association, which I take to be a very promising sign.)

Members would serve a single term of 15 years, with a third retiring every 5 years at the time of the general election to the Commons.  They would be barred from immediately entering the Commons thereafter, thus stopping younger politicians from using the Lords as a springboard into the lower house (as aspirant Irish polaiteoirĂ­ do with the Seanad).  The term length is very unusual both in the British context and in the democratic world more generally, though French senators did serve for 9 years until fairly recently.  Having said that, 15 years can be seen as an incremental change from lifetime appointment, and a system of indefinite appointment survives in Canada, where senators can remain in office until age 75.

It might be noted that the 5-year cycle, the single 15-year term and the restriction on subsequent election to the Commons are not new proposals: they were all envisaged by the 2007 White Paper.

It is proposed that the elected members be elected on the basis of STV, or perhaps a list system.  If STV is indeed to be used, it will be the first time that the system has been employed for parliamentary elections since the Commons university seats were abolished in 1950 - though STV is used for local elections in Scotland and has been used happily (if that is the word) for decades for elections of all kinds in Northern Ireland.


Rather astonishingly, it appears that the Lords themselves are not in favour of the proposals.

A sight that one rarely sees

However, not everyone in political life is happy with the upper chamber.  Here are the Labour and Lib Dem peers Andrew Adonis and Paul Tyler:
The Lords is much overrated as an assembly of the wise and the independent. Most non-party peers make little if any contribution to the house, while most party appointees are long-retired former MPs, councillors or failed Commons candidates. Almost all are very old and very "ex". And they are fairly random in their activities. The Lords has no committees whatever that scrutinise large areas of government activity, including foreign affairs, defence, welfare or the public services.
And here is the self-effacing MEP Daniel Hannan (R-Uk):
Please try to understand that the House of Lords is not a benign assembly of Nobel laureates, successful generals and the odd patriotic earl. Such people may be found there, but they have been swamped in recent years by the committee-sitters and placemen, the public sector princelings and quangocrats, who embody the way in which power in Britain – as in Brussels – is concentrated in the hands of an appointed apparat.

Could it be, after 700 years of service, that their lordships are finally destined for the history books?  Not according to some analysts, who think that, in spite of the government's protests to the contrary, the legislation will never get near the statute book.  One such is Martin Kettle, who argues that the case for reform is illusory in any event:
The political case for reform would be that ministers cannot get their business done without changing the Lords. But this is simply not true. Even with a hung House of Commons, the lower house rules without serious challenge.... An amendment here, a delay there – that's about it. The legislative system is not broken. The Lords play by mutually understood rules....

The democratic case for reform is that laws should always be passed by elected representatives and by no one else. It's an impeccable democratic position.... But Lords reform is simply not a public priority, especially when money is tight.  Low public esteem for all politicians, whether elected or not, means the proposal to send another 300 identikit politicians to Westminster is also a hard sell....


Let's assume for the sake of argument that the legislation will pass.

The critics quoted above are not necessarily representative of informed opinion.  The fact is that the Lords has succeeded, particularly since the last round of reform in 1999, in winning a reputation as an effective expert revising chamber.  There is a widespread feeling that the House is fulfilling its perceived constitutional role reasonably successfully.  Moreover, it has been noted (by Vernon Bogdanor, for example) that messing about with the composition of the Lords risks endangering its sober, non-partisan atmosphere.  It is not easy to have an elected legislative chamber that is also expert and non-partisan.  De Valera tried with the Irish Seanad and failed miserably.

At this point, a traditional conservative would say game over.  The current arrangements work well - and, as Lord Salisbury said, if it's not necessary to change, it's necessary not to change.  This, however, arguably misses the broader point.  Looking at the bigger picture, the problem that reform is needed to address lies not with the Lords but with the system as a whole.  A wholly or largely appointed House of Lords (or Senate, or whatever) is unequal to the task of counterbalancing the Commons, dominated as the latter is by the executive and the party machines.  Only an elected Lords will have the credibility to put a real dent in the power of the government and the whips.  This line of argument is supported by none other than Lord Strathclyde.  Indeed, the notion of the Lords as a counterbalance to an executive that dominates the Commons was articulated as long ago as 1882 by the great Conservative statesman Lord Salisbury:
A House of Commons, enslaved by the caucus, and muzzled by the clĂ´ture [guillotine], would be a very different body from that which has hitherto been the glory of English history....
When people have got together a scratch and accidental majority... an intense desire is nourished that, before that unique majority has disappeared, it should deal some telling, some crushing, some irreparable blow... and it is greatly feared that, when this proposal is made, the House of Lords may possibly say, ‘No, this was not the ground on which this last election was conducted; we will not allow this thing to be done until the nation has been allowed to speak’. In so acting, I hold that the House of Lords will perform its true duty as a second chamber, its highest function as the last representative of the people in this country.
This doesn't mean that an elected Lords will seriously rival the Commons for dominance or produce US-style gridlock.  The long term-length for members and system of staggered elections will surely succeed in their evident purpose of placing a limit on the new chamber's legitimacy (though the restrictions on re-election and on standing for the Commons will encourage greater independence).  In any case, it is rare for upper houses to wield equal powers to lower houses, even when they are elected directly (Japan, Poland, Spain) or indirectly (Ireland, Austria).  As the 2007 White Paper noted, the powerful but dysfunctional US Senate is quite unusual in this respect.  There is also a long historical tradition of the Lords deferring to the Commons, which can be traced back variously to 1911, 1832 or even 1713.

No democratic country is satisfied with its upper house (even Germany is having second thoughts about the Bundesrat, which worked away uncontroversially for years), and the current proposals, if they are not shelved, are unlikely to produce an outcome that will satisfy everyone.  But Lords reform has been a constitutional loose end for a century now, and the draft bill represents a moderate and welcome step in the right direction.