Walter Bagehot, in his high Victorian classic The English Constitution, wrote that
the danger of the House of Lords certainly is, that it may never be reformed.
Already the view’s been expressed that if you have a problem with the coalition’s House of Lords Reform Bill then, since the perfect is the enemy of the good, objectively speaking you’re resistant to reform. I don’t hold with that. Further reform is welcome. But those who’d tinker with the constitution need close watching; and bad reform is worse than none.
Bagehot, admittedly writing at a time when the Lords was full of hereditary peers, nonetheless made a number of points about it that I think should still guide us in thinking about our second chamber. He warned us to ensure two authorities are not “up”:
The evil of two co-equal Houses of distinct natures is obvious
and about the dangerous potential of the Lords:
the House of Lords would, on the very surface of the matter, rule us far more than it does if it had not secret defects which hamper and weaken it.
He rightly identified that the key to making it work is getting the right people into it:
It is incredibly difficult to get a revising assembly, because it is difficult to find a class of respected revisers.
And he stressed that what it needs most of all is independence:
It would not be powerful … unless it were known to be independent. The Lords are in several respects more independent than the Commons; their judgment may not be so good a judgment, but it is emphatically their own judgment.
Whatever we think of the House of Lords in the 1860s, anything we create today must meet these tests. It must be clearly subordinate to the Commons, with limited power; it must have credibility and respect as a revising chamber; and it must not be the creature of government or party. These principles are at least as important as whether or not it’s elected.
The most obvious defect in this reform is that it would preserve indefinitely the special place of “Lords spiritual” in the second chamber. The proposal, under Part 4 of the Bill, is that their numbers should gradually be reduced to twelve. Five of them would be ex-officio – the Archbishops of Canterbury and York, and so on. The remaining seven would be somehow selected by the Church of England.
This is simply shocking. We can live with this remnant of a bygone age while we wait for the future second chamber to take shape, perhaps step by step. But the most obvious and necessary reform now would be a one-clause bill abolishing the “Lords spiritual”. No reform that keeps them can be accepted, and that fact that this bill does so wounds fatally its “democratic” claims.
But there are more problems, and arguably worse ones, with every category of member this Bill would create: the elected, appointed, ministerial and transitional ones. The problem is where to start.
Under clause 4(6), elected members will serve for three “electoral periods” – basically, three Parliaments amounting to fifteen years, although since not every general election would trigger a partial Lords election (see clause 3(3)(b)), if we had a period of closely-spaced general elections as in the 1960s and 70s, some elected members might end up serving seventeen or more years. Some members might end up serving less than fifteen. Voting, under clause 3(2), will be on general election day and under clause 4(2), 120 members will be elected each time. The idea is that the House should gradually fill with elected members, 120 being added at each of the first three elections and a third of the eventual total of 360 being replaced at each election after that. Clause 26(1)(e) prevents people from standing again once their long term is complete. Members will be elected by a proportional “list” system under Schedule 3 to the Act. There are many things wrong with these arrangements.
Real democracy is not just about being elected in the first place – it’s also about the need for politicians to seek a renewed mandate, or be replaced. To elect members once only, for a long, non-renewable term, is no more than semi-democratic. This sort of elective unaccountability receives at best one cheer.
The timing of elections is also arguably a problem, landing as it does on Commons elections days. This being so, the 120 members elected each time – even under a PR system – are likely always to reflect, in a softer way, the majority gained by an incoming or returning government. Once you realise this, it becomes clear that at any Lords election, it’s unlikely that a long-serving government would lose power significantly, and it could well gain. There’d never be anything like the mid-term loss of power that a President’s administration can suffer in the United States. I’m not sure how this is resolved (although electing some Lords at European and local election terms might help) or that anything like the gridlocked American system is desirable – but it’s far from obvious that what Nick Clegg has chosen is right. This simply illustrates the need for careful thought about major constitutional change
There are concerns too about the independence of these elected members – which depends on who they’ll be, how precisely they get elected and what ambitions they’ll have. The electoral system chosen will need to be closely examined (and I’ll be doing a lot of thinking about it) but at first blush Schedule 3 seems to give too much power to parties as opposed to voters. To be fair, this is an “open list” system: we’ll be able to vote not just for a party, but for an individual candidate. But look at paragraph 3(2):
A vote for a party candidate is treated for the purposes of paragraph 4 as a vote for the candidate’s party.
Taken with paragraph 4(2) (the italics are mine) –
The first seat is to be allocated to the party or the independent candidate with the largest number of votes
the result must be that, by voting for one candidate in party’s list, you cannot avoid helping other candidates from that party being elected above others – even though you may have wanted to help that candidate alone. A Labour vote is not necessarily just a Labour vote: you may not want your vote for Tony Benn to be counted as support for Tony Blair. There seems on first sight of these arrangements to be an almost imperceptible but nonetheless real built-in advantage to party favourites.
Even more important is that candidates for election, even party candidates, should be drawn from a different pool than would-be members of the Commons. One of the greatest strengths of the current House of Lords is that no one can seriously try to launch a political career in it. Retaining that feature is important: if we can, it’d mean even party candidates would be a slightly different breed of politician – less careerist, more committed to being detailed legislators, perhaps more specialist.
But I’m afraid this bill abandons that. It’s vital that no one should be able to try their luck at getting into either the Commons or the Lords at the same election – and the Bill does provide that. Members are disqualified from being MPs while in the Lords, obviously, and under clause 41 for a further “disqualifying period” of 4 years and a month after they stop. But that’s not good enough, especially when you realise that under clause 45, an elected member of the Lords can resign with immediate effect.
The result is that someone (say a favoured party insider who’s top of the list, benefiting from “Tony Benn” type votes to get elected) can sit in the Lords for one Parliament, then resign at the next election and (after a period perhaps as a special adviser) having been gifted a safe seat, enter the Commons ten years later, perhaps becoming a minister soon after that. This Bill, in other words, creates a possible political career path through the Lords, which again suits traditional party politicians – and reduces the independence of the Lords. It would be better simply to provide that once you’ve been in the Lords, you can never be an MP (or a member of a devolved legislature).
Transitional members, now. These are existing members of the Lords who’ll remain to keep the House full until it’s transitioned, by about 2025, to its final composition. The text of the Bill deals extremely shortly with transitional members: the devilish detail is all in Schedule 7. That tells us that (logically enough) the number of transitional members will go down gradually as the number of elected members increases, and disappear altogether by about 2025. From 2015, there’ll probably be roughly 460 of them, since they’re to be two thirds of those currently entitled to attend, the number of whom about 775. From about 2020 there’d be half that number. That makes sense because it means the House would gradually reduce from about 775 to roughly 600, then roughly 500, and finally something around 500 or less when all the transitionals have gone.
The standing orders may make provision for persons to be selected in any way (for example, by election or by reference to decisions made by political parties or other groups of members).
The italics, obviously, are mine. It’s unacceptable that a major transitional component of the Lords could be the purest party favourites of all.
Appointed members will be chosen (according to clause 13) by an independent Commission – which is fair enough. By the way, you’ll be able to apply because they’re to be selected by fair and open competition. But who appoints the seven Commissioners? Under Schedule 5, it’s the Prime Minister who selects them – admittedly on the basis again of “fair and open competition”. The only restriction on being a Commissioner is that you can’t be a government minister. But that doesn’t exclude ex-ministers, backbench MPs, former MPs or party favourites of any other kind. Once appointed, Commissioners will serve for ten years.
Finally, ministerial members. Clause 24 gives the Prime Minister to choose people to go into the Lords
for the purpose of facilitating the performance by the recommended person of that person’s functions as a Minister of the Crown.
Why this is really needed is unclear, since there are likely to be at least 100 elected members from the governing party or parties. But presumably this is thought essential if the Prime Minister wants to appoint a “goat” like Lord Lester. Once appointed, under clause 24(5), the person remains in the Lords for two electoral periods – about ten to fifteen years. What’s especially interesting is what the Bill tells us, or doesn’t, about the number of these ministerial ministers. It says (clause 24(4)):
An appointment may be made only at a time when there are fewer than 8 ministerial members who are Ministers of the Crown.
At first blush, it seems that this sets a maximum limit of 8 ministerial members at a time. But it’s not so. Remember that, once appointed, these people stay in the House for ten years or so. They don’t stop being ministerial members when they stop being ministers. Yet when they do, the number of ministerial members who are ministers, as clause 24 puts it, goes down by one.
The result is, surely, that the Prime Minister can make 8 people ministers, securing for each of them a place in the Lords for up to fifteen years; a year or two later he can sack them as ministers, replacing them with a new crop of ministerial members; and slowly but surely he can increase the number of these personal appointees to well over the apparently low number of 8. If you imagine a clearout of Lords ministers every couple of years, under these arrangements Tony Blair and Gordon Brown could have created over 50 of these ministerial members between 1997 and 2009 – and most of them would still be in the Lords now.
This power of patronage could be very useful to a Prime Minister, and more than anything else in this Bill it makes a mockery of the democratic claims the government makes for it.
What there’s no provision for, of course, is a referendum. While it’s true that Lords reform along roughly these lines was promised in both the Conservative and LibDem manifestos, it’s such a fundamental constitutional change that voters ought to be asked endorse it. It’s certainly unacceptable for politicians in power to whip through such a defective, in one respect shocking and in others potentially self-serving reform. We should have the right to say no.