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.
But how will the transitionals be chosen? Paragraph 3 of Schedule 7 tells us they’ll be selected according to Standing Orders of the House and that (paragraph 3(2)):
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.
Of all the components of the reforms, the long term is the least worrying. It does give the potential for the revising chamber to exist above the often short-term thinking of MPs. For a revising chamber that is essential. You can’t in one breath say it is essential it remains an revising chamber, and in the next that it should have the same level of representative democracy as Parliament. The latter mitigates against the former. Excellent post.
You say that any elected Lords
Serious question: why? I’ve never understood this. What am I missing?
Thanks, and good point. But isn’t the logic of what you say be that an elected Lords isn’t the key to reform at all? That’s my feeling. I’ve never quite been sure I’m in favour of a fully appointed Lords, I don’t think election is the key to reform, and I’m certainly not arguing for full representative democracy. I think we get to this long term idea because when many people think hard about the consequences of electing the Lords, they step back from it – but are unable to step back completely.
I’ve often mused on the possibility of splitting voting and speaking rights in the Lords: only elected Lords would vote, but there’d be any number of appointed Lords, and only they could speak. No one else seems to be interested in that, though.
Another option that I might be attracted to would be to have a fully appointed House – but to elect the appointments commission. I’d like each member to have a published record of who they’d nominated and why, and whose nomination they’d voted for and against (and why).
I think you’re missing the danger of gridlock. If the Lords feels it has rough parity with the Commons, it could become more aggressive about voting down government bills. Yes, the Parliament Acts are unaffected by this bill but if government were forced to resort to the Parliament Acts more often, people might start to feel that it was wrong for the Commons to override the Lords constantly. I think it might make legislation more of procedural and legal trench war than it is now, and fur up public business.
And if the Parliament Acts were repealed – we really could have total gridlock.
I think the parity thing is also more of a danger if (like me) you’re sceptical of the supposed benefits of PR in Westminister. Once you elect a second chamber by PR (which, by the way, I think is reasonable for a clearly subordinate revising chamber), it means PR is at the heart of the legislature. The more power the PR component has, the more we have in effect a “PR system”, and the more likely we’ll need to have constant coalition government of a sort – if, say, a single party government needed another party’s support to get its legislation smoothly through the Lords.
Much better just to have a clearly understood convention that the Lords is subordinate, and only entitled to revise legislation and ask the Commons to think again.
This is a very thoughtful post, but it seems that you over-state the flaws (inherent in any system) without looking at the flaws they will replace.
The fear of gridlock is over-done – another description of ‘gridlock’ is that legislation will need to pass a much higher standard to be adopted. We can all think of examples (Dangerous Dogs?) of legislation that is useless and impracticable as a result of an over-mighty government whipping through knee-jerk laws. Ultimately, as I understand, the Parliament Act will remain, which enshrines the seniority of one House.
Another point which you over-do is party influence: being elected once only means that, even if you started life as a party hack at the top of the PR list, there is going to be little incentive to keep you there. The fear of politicians using the new system as a route to a political career is also over-done: if anything we don’t have enough ambitious people going into politics, leaving us with a pretty rum bunch of MPs. Opening a new route seems a way of broadening and improving standards. Why should we fear that?
Finally, there seems to be an inconsistency in your fears of PR and the necessary coalitions it brings, and the existing system which, by definition cannot reflect the current electoral mandate (which is why, for example, we see so much activism by Labour peers in the current parliament). Surely the ‘PR’ element of the election is the least important aspect (after all, FPTP would be hard to justify in this type of legislature)? Indeed, the current party make-up of the House of Lords bears no relation to the current Parliament and is therefore highly conducive to a form of “constant coalition government”. In any case, the growth of support of minor parties is one of the main factors propelling the UK to constant coalitions, with or without PR.
“a year or two later he can sack them as ministers, replacing them with a new crop of ministerial members”
As far as I can see it needn’t be a year or two later – it could be a day later, or five minutes later. Is there any limit to the number of cronies who could be packed into the house in this way?
Fair points all. To respond to a few of them, I see your point about PR and the current Lords. I absolutely agree that FPTP would be a terrible idea for the Lords, whether at the time of general election (risk: no real second chamber) or mid-term (risk: total gridlock, every government lameducked after two years). And I agree with you about the growth of minor parties. To be clear I’m not arguing for the status quo. I don’t think objecting to this bill means you do.
On political careers, I disagree about the number of ambitious people! I think there are plenty of those; what there’s aren’t nearly enough of are good and independent-minded people. I’m for political parties, not against them. But the party system can work in negative ways – especially the way parties gatekeep politics so that party hackery is the key skill – and at the moment does too often I think. Lords reform is a good way to check it. If Lords party list candidates were somehow selected outside normal party procedures – say by pure open primaries, without any member getting any advantage at all by being supported by the party – then this might be a way to open up politics, and we could find a good stream of new politicians. But if the parties gatekeep as normal, the only thing stopping pure replication of the Commons is a rule that will put normal career politicians off.
I agree the problem of gridlock can be overdone – perhaps I can overdo it. But I think the risk is less the more strongly the Lords is “culturally aware” that it’s subordinate. Having some democratic legitimacy could disturb that – especially if the new Lords is full of wannabe MPs. That’s why I worry.
No limit on the face of the Bill. I agree with you – I took a couple of years as my measure so as to make it politically realistic, and to show that abuse could be less than totally flagrant yet still pay. But I think you’re right.
I wonder whether the PM’s decision to recommend someone might be judicially reviewable, though. I’d need to think about that.
If people need to stand for something rather than believe in it in the Lords, we have a problem. They are unelected. They complete the circle. The population is unelected. The Lords (who’ve thought about stuff intensely over many years) check and balance the efforts of those elected on a mandate (which is difficult, given the coalition). I disagree re- lords spiritual. They have much experience of people that noone else is privy to. In the same breath, a medical judiciary – elder statespeople who have made these decisions throughout their professional lives should be able to sit on a right to die committee. Noone can propose election for these people…. they’ll be advocating which drugs to use! Keep the Lords unelected. Keep them as they are. The supreme court etc did enough in this country. More will tip the balance.
Personally I think that ‘democracy’ as evinced by this Bill and by advocates of Lords reform generally is a much over-rated concept. Just look at the average turnout at any of the various elections, or the quality of some of those we elect, based not on their personal qualities but on the fact that they are the only candidate put forward by the party whose policies best meet an individual voter’s aspirations. Clearly a candidate for the Upper Chamber (or Senate or whatever) who is on a party list will, by definition, be voted for based on his/her party’s general manifesto, not a specific manifesto for the role of the Upper Chamber. That is just a Two-for-the-Price-of-One deal, it’s not democracy.
While it seems inevitable that under the proposed system ‘politicians’ will eventually form the vast majority of the Upper Chamber (as opposed to the current ‘Great and the Good’), that doesn’t mean that we should allow party politics to dominate the work of the Upper Chamber. For example if the Whip or any similar formal system of directing how Senators should vote was banned in the Upper Chamber, it might function more clearly in the public interest rather than the government’s interest, because members would have greater freedom to vote based on their conscience. My reason for advancing this is that one of the great strengths of the current composition of the Lords is the role of the cross-benchers, a group which, in my submission, will largely disappear under the proposed system once the current membership has been flushed out.
If the system of electing members allows them to remain in their seat for 15 years or more, then there should be a system which allows their ‘constituents’ to recall a member, if a sufficient number vote for such a move. Otherwise there is nothing to stop someone getting elected and then drawing their (no doubt generous) salary and expenses for the next 15 years without ever once attending the House (cf certain MPs from Northern Irish constituencies).
But to return to my opening point. The purpose, both now and in the future, of the Upper Chamber is to revise. Another way of putting that might be to say that they are there to moderate or regulate the Commons, (and we are so often told that the role of the Commons is hold the Government to account). How does another wholly political chamber achieve this task better than a chamber composed of the Great and Good who are appointed to that role (by whatever means) based on merit? A meritocratic approach strikes me as having much greater utility in a regulating role. Indeed one might say that in addition to the triangle of Executive, Legislature and Judiciary, we would have a second triangle of Autocracy, Democracy and Meritocracy (if this wasn’t a Serious blog, that would have a smiley after it).
Finally one has to question why the political parties see this reform as so vital and urgent while opinion polls show that voters do not. The cynic in me says that reform will be engineered to serve the purposes of the parties far more than it will benefit society as a whole. And as recent history has demonstrated, politicians can be just as venal and self-serving as any banker.
Great post and thanks for teasing out some of the problems inherent in this Bill.
I fully agree that this major constitutional change ought to be put to the people via a referendum.
Personally, given that the actual powers of the Lords will not change, the House ought to be 100% elected with members elected for 5 years. This ensures renewal of the democratic mandate of each and every member.
Having been a member of the Lords (irrespective of length of time) should debar the individual from standing for election to the Commons.
When all members of the Lords have to be elected, the Lords Spiritual automatically disappear and no provision would be made to retain them. I suspect that they would not even be in the coalition’s Bill but for reluctance of government, during the life time of HM The Queen, to tackle to question of the established church.
Prime Ministers love patronage (=power). Hardly surprising then that they will be able to build up the numbers of “ministerial” members who will continue long after they are no longer “ministers.”
Overall, the reform is too complicated. Just go for an elected revising Chamber.
I also wonder just what, in practice, will happen re peerages. I suspect that the political class will wish to grant peerages to, at lesat, the members it puts into the House. If so, that creates separate “classes” of members.
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I don’t think your objections are sufficient to give cause to oppose the Bill. I’m suspicious of an elected second chamber, as party loyalists are not appropriate for a revising chamber. But the ability of a Prime Minister to stack a second chamber with loyalists is also a big problem. Having an PR-elected component is unlikely to give a majority to one party so will limit the ability of the whips to drive legislation through the House. And retaining the appointed element will retain the wiser folk who would never want to put their names up for election.
Further there are very big disincentives in the Bill for ambitious politicians to seek election to the Reformed Lords. Single term, prohibition on re-entering commons for over 4 years… – if anything, this goes too far, as it prevents emerging talent in the Lords from continuing in public service. I would combat this by allowing a small exception for individuals to be appointed as a Ministerial member notwithstanding that they would otherwise be disqualified for having previously served.
Your concerns about stacking and sacking ministerial members to increase the number of cronies miss the mark. It’s necessary to give a ministerial member some autonomy that they are not completely out on their ear if they feel they have to resign due to disagreement with the Prime Minister. Although a PM could game the system, it would require the collusion of all those appointed members (who might not appreciate being swiftly fired and expected to stay loyal), and also the Queen who has to appoint them all. I would hope that the Queen would be able to stand up to a PM who is blatantly gaming the system in such a way. A PM would have more to lose than to gain by having a constant quotient of mediocre ministers who are only there to enable him/her to gradually stack the lords.
And as long as there is a single Lord Spiritual left in the Lords, the Commons will retain its constitutional supremacy as the democratic chamber. Really, 20% of appointed members as proposed is sufficient to keep it as a Second chamber.
I’m also very heartened to see that the changes will be gradually implemented, which means that, theoretically, difficulties that crop up can be identified and addressed before we go whole hog.
I don’t believe that a gradual change in how members of the Second Chamber are appointed is the type of fundamental constitutional question that should be decided by referendum. It’s not a question that even the average political anorak loses much sleep over – it’s of interest purely to constitutional law geeks.
I have some reservations but generally the Coalition should be applauded for coming up with a pretty robust framework for an elected second chamber.
The House of Lords needs reform, but the push towards a mainly elected chamber seems to completely misunderstand the purpose of the chamber and completely denies the success of its practical role because of it doesn’t fit with idealistic political theory. Surely the real problem with the present appointed Lords is the ability for the party in power to appoint party members to it. If we care about the House of Lord’s ability as a revising chamber then our focus should be on insuring that the cross-benchers will always compose the majority, which could include the possibility of having say a 30% cap on those appointed by the political parties. I believe what irritates me and others against the move to the elected lords is yet again we have a policy which will have wide ramifications being pushed ahead with no real time for debate. The only arguments the Lib Dems and Labour seem able to deploy is the dropping of keywords and phrases, such as ‘fit for the 21st century’. Those in favour of reform paint those against it as being antidemocratic and completely refuse to acknowledge valid concerns. One of the beautiful things about our system is that it has evolved over time and while it retains some anachronistic elements, it has a better track record of promoting democracy than some other political systems of the world which have been carefully drawn up with a written constitution.
The majority of the points in this post are valid concerns, but I am not sure that they are enough to warrant rejecting the bill completely, I agree that the Lord’s spiritual is wrong (and I am a christian) Its undemocratic and to be bluntly honest does not reflect on the spiritual make up of the UK population – if you are going to argue for this where are the presbitearan, baptist, catholic and Muslim representatives to name but a few?
I also agree that the inability of a lord to seek re-election, the appointment of ministerial lords by the prime minister, and increased influence of political parties are problems, but surely these problems are better than an undemocratically elected house where a government TRIES (maybe not successfully on the odd occassion) to fill the house with peers from their party, as far as the increased influence of political parties, I believe that every lord should be a cross bencher or if we retain the political parties in the upper house then they should be free of the party whips and therefore prevent any government pushing legislation through the lords, without the use of the parliamentary act.
As far as your concerns on ” wanna be MP’s” I agree with sandman, the preventative measures are in place, they could be made more severe in the future ( a two term ban for example) . In conclusion I agree with most of the points made in this post but like art I think the flaws are over – emphasised in the argument against the bill.
[…] Carl Gardner, on his Head of Legal blog – puts the boot in with elegance and precision of thought: We must say no to this bad Lords reform […]
[…] Carl Gardner’s blog post: We must say no to this bad Lords reform […]