Lords reform: Questions and Answers

 

What is the Campaign?

 

The Campaign for a Democratic Upper House (CDUH) was formed in 2000. It is a grouping of Labour Parliamentarians and members who support a second chamber that is wholly or largely elected. It has campaigned in Parliament on key votes on Lords reform in 2003 and 2007, responded to consultations by Government, and organised fringe meetings at Labour Party Conference.  It has given evidence to the Joint Committee on the current draft Bill. Its website is www.democraticupperhouse.org where briefings and updates on the issue are available. 

 

What sort of reform for the House of Lords does the Campaign support?

 

The Campaign does not have a fixed blueprint, beyond its key demand that the second chamber should wholly or largely elected. It therefore supports either a 100% or 80% elected House as envisaged in the current draft Bill. In the past, it has lobbied in support of proposals in Parliament under which at least half of the members would be elected. It has taken a close interest in the roles, functions and powers that the elected second chamber should have, as reflected in its evidence to the Joint Committee.

 

In a nutshell, the second chamber should remain a revising chamber, with its existing roles in relation to scrutiny, but also providing a voice for the nations and regions of the UK. If 80% of the members were elected, the remaining 20% should be Independents appointed by a statutory appointments commission. The role and functions of the reformed House, and the limitations on them, should be set out as part of the reform. The Parliament Acts should remain in place, limiting delay on Commons Bills to about one year, but the power to veto statutory instruments should be replaced by a short delaying power. Versions of the present conventions governing the relations between the two Houses can, and should, be made the subject of agreed resolutions between the two Houses, to give them permanent form until changed by a process of review. There should be a conciliation committee between the two Houses to resolve differences over prolonged “ping pong” over legislation.

 

Why does the Campaign want an elected second chamber?

There are four main reasons. First, it is a fundamental principle in a democracy that those who participate in making the laws should be chosen by those who are governed. The UK has exported the democratic principle around the world, and claims to have the “Mother of Parliaments”, and yet we tolerate the absence of democracy from the heart of our own political system. Second, the second chamber currently lacks the legitimacy to give its views weight within Government. If its views eventually carry the day (which is quite rare, at least in substance, despite the drama of occasional Government defeats), it is usually because of chance political factors; such as the time left in a session. It is not because the Government recognises that weight should be given to a so-called House of “expertise”, which is rarely mentioned in stand-offs over Bills. Because of the relative weakness of the Lords, the House of Commons is weaker too in its relations with Government than it might be otherwise. Third, the second chamber should be a forum in which the nations and regions of this country can have a distinctive and equal voice at UK level. Fourth, a democratic second chamber would enable Parliamentarians in both Houses to get to know each other better, and to co-operate more, since there would be no longer be the obvious difference between them over composition. The approach of “divide and rule”, whereby Government too often plays one House off against the other, would be more difficult to achieve. 

 

Where can I find the Campaign’s evidence to the Joint Committee?

 

The Campaign’s written evidence to the Joint Committee is on its website under “What has the Campaign said about the Bill?” (www.democraticupperhouse.org). A video of its oral evidence to the Committee is on the Parliament website (session on 16th January 2012, at http://www.parliament.uk/business/committees-a-z/joint-select/draft-house-of-lords-reform-bill).

 

Why is this issue a priority at the moment?

 

Some people argue that nothing matters at the moment except economic recovery. It is perfectly true that the economy is the central political issue, for the Opposition as much as for the Government. It is also true that public expenditure is severely constrained. That does not, however, prevent other changes to our national life from being considered. The academy programme in schools and the creation of free schools, the expensive (and disastrous) NHS and Social Care Bill, and reform to public services generally, are all (whatever their merits or otherwise) being pursued by the Government at present.

There is never a “right” moment to make important constitutional changes. If Labour had let public spending constraints in its first two years in office (1997-99) prevent it from making important reforms, there would have been no devolution to Scotland and Wales or Human Rights legislation; all passed in 1998; nor the removal of the majority of hereditary peers from the House of Lords, passed in 1999.

 

The Attlee Government’s reduction in the delaying power of the Lords to one year from two years, in the Parliament Act 1949, was debated (1947-49) during the height of postwar austerity.

 

While proper account has, of course, to be taken of the costs of any new measure, the present state of the economy is not in itself a sufficient reason for delay.

We have reached a point where all the major political parties support reform, reflecting public opinion over a long period. The House of Commons voted in 2007, for the first time, in favour of an 80% or 100% elected second chamber. Detailed proposals in the Labour Government’s White Paper in 2008 are reflected in much of the draft Bill. Our politics have moved beyond the point where the continued presence of unelected legislators in Parliament is considered acceptable, despite the affront they present to democratic principles.

 

More than a century after the Parliament Act 1911 first removed the veto power of the Lords, and well over a decade since 92 hereditary peers were allowed to remain as guarantors of further reform, the time has arrived to complete the modernisation of our constitution and conclude this piece of unfinished business.

 

What should be the role of an elected second chamber?

 

The second chamber should have five main roles, only one of which adds to those of the present House of Lords. First, it should remain a revising chamber with the power to ask the House of Commons, or the Government, to think again on an issue in primary or secondary legislation. Second, it should scrutinise Government, both as to the detail of issues and in relation to larger-scale or long-term questions. Third, it should inquire into issues of national concern, that transcend party debate or that raise issues outside politics. Fourth, it should act as a forum in which the nations and regions of the UK are represented and can have a voice at UK level that they currently lack (the new role). Fifth, it should act as a constitutional longstop, including continuing to hold a power of absolute veto over a Bill to extend the life of a Parliament beyond five years. 

 

The functions of the second chamber should then proceed from these roles.

 

It is striking that these roles, and the functions to carry them out, do not include those things that we reserve to the House of Commons and to MPs: choosing and maintaining a Government; forming that government, and providing most of its Ministers (including the senior ones); controlling public spending; and, having the final say over legislation.  

 

Should the House of Commons retain its primacy?

 

Yes. Nobody proposing a reformed second chamber believes otherwise. Other countries with bicameral systems choose which of their chambers should be stronger, and reflect the outcome in their constitutional rules. We should start from the consensus that the Commons should remain the primary chamber, and similarly reflect this in our constitutional arrangements.

 

Wouldn’t an elected second chamber threaten the primacy of the House of Commons?

 

Not if we take steps in the reform package to prevent it. Even if we did nothing, existing restrictions in statute on the powers of the Lords would probably avert the risk. But Clause 2 of the draft Bill, which states that nothing in the Bill affects the primacy of the House of Commons, or the powers of the two Houses or the conventions governing their relationship, is not adequate as it stands.

 

If we take two further steps in the reform package, however, the primacy of the House of Commons can be safeguarded and strengthened, and made secure in relation to an elected second chamber.

 

First, we should set out clearly, in the reform package, the role and functions of the second chamber; and make clear that the House of Commons is the primary chamber. The package should also make explicit the secondary role not only of the second chamber, but of its members (in a form of “job description”); stating particularly that their functions do not include the crucial powers over maintaining the Government of the day, finance or the final word over legislation that are vested in the House of Commons. By this means, the political conditions in which the reformed second chamber would start to operate would be made clear and publicly understood from the outset.  

 

This can then lead to the second step that could be taken in the reform package (below).

 

 

What does the primacy of the House of Commons rest on? How could it be strengthened and made secure? 

 

The primacy of the Commons does not historically, despite widespread belief to the contrary, rest on the fact that only the Commons are elected. It predates the mass franchise; and the claims of the Commons (for example) to control the granting of money to Government go back to the late 17th century. The present relationship between the two Houses is based on a combination of:

 

(i)                Important functions that only the Commons and MPs perform (as above: choosing and maintaining the Government of the day; and, providing the Prime Minister, most Ministers, and most or all senior Ministers);

 

(ii)              Restrictions on the financial powers of the Lords;

 

(iii)            Restrictions on the powers of the Lords over revising Bills; and

 

(iv)            The powers of the Lords over statutory instruments.

These should be maintained, and in some cases the restrictions on the Lords’ powers should be strengthened. (Control over finance, for example, forms one of the most important powers of the Commons, which potentially matters far more to the daily business of government than powers over Bills and statutory instruments). One example of changes would be removing the veto over statutory instruments, which is rarely used, in favour of a short delaying power. Another would be putting the modern convention that the Prime Minister must be an MP, and creating a cap on the number of Lords’ Ministers, which could both be put into legislation. 

 

Where restrictions on the powers of the Lords arise from conventions, rather than statute, there are two main options to strengthen them. The first would be to convert them into statute, although this could be objected to because of the role it could potentially oblige the courts to play, if there were a challenge to a decision of either House of Parliament (infringing “Parliamentary privilege”).

 

Alternatively, and as the Campaign has proposed, the conventions (with any desirable changes) should be set out in short identical resolutions to be agreed by both Houses, and binding upon them, referring to a document setting out the conventions drawn up by a joint committee. The resolution of the second chamber could not be amended without the agreement of the Commons. Approaching the issue in this way would keep the decisions within Parliament. It would also allow for the conventions to change by agreement over time, if the joint committee continued to review the operation of these internal rules and to propose changes to both Houses.

 

The agreed resolutions would cover the areas that are not already the subject of legislation:

 

-         Finance: a clear statement that the second chamber has no role in relation to public spending; setting out the present conventions preventing the Lords from vetoing a Budget bill or approval to public spending; upholding Commons “financial privilege”, so that the Lords cannot amend either type of Bill; preventing amendments “in lieu” (ie a second round of proposals) to non-financial Bills, once the Commons have claimed financial privilege.

 

-         Primary legislation: upholding the Salisbury/Addison Convention in its modern form; ie that manifesto bills should be passed in reasonable time, and not be subject to wrecking amendments in the second chamber; that the second chamber should not other than exceptionally reject any other Government bill passed by the Commons; and, the second chamber should consider Government business in “reasonable time” (with a reserve power for a Government to introduce timetabling in the second chamber if this were not followed).

 

Also, a conciliation committee should (as in the nineteenth century) resolve disputes over amendments exchanged to Bills, perhaps after three rounds of voting; plus a reserve power to limit the number of exchanges, if recommended by a Parliamentary committee (below).

 

-         Secondary legislation: the current Lords veto should be reduced to a short delaying power (eg one month), with a new convention that the same or a replacement SI would then be passed without a division.

 

-         Standing joint committee: to review the relationship of the two Houses, and the agreed statement; and to recommend new conventions.

 

By measures along these lines, the primacy of the House of Commons in relation to an elected second chamber can be made secure. 

 

Is there a danger that elected members of a second chamber could interfere with the constituency role of MPs?

 

This risk has been exaggerated. It should be averted if the roles of MPs and members of the second chamber are clarified from the outset. An elected member of the second chamber with an electorate of the size of a constituency under the Single Transferable Vote, or under a regional list, is unlikely to be able to intervene to any significant extent in personal casework matters relevant to a Commons constituency which is much smaller. Members of the European Parliament have not significantly affected the constituency role of MPs for the same reason, despite fears initially that they would do so.

 

If it is made clear, as part of the reform package, that members of the second chamber are not expected to take on personal constituency casework, nor to lobby Ministers on local issues (except perhaps those relevant at the level of their region, if they represent one), that would condition their own, Ministers’  and public expectations of their role. The rationale would be that MPs are in direct contact with the majority of Ministers, including the most senior ones, who are accountable to them.

 

While members of the public approach peers now, this is more usually over policy questions rather than with personal issues or problems with public services; and it should be made clear that this should continue to be the approach. This would be reinforced if members of the second chamber were obliged to refer a matter to the relevant MP, unless either it concerned their region, or the elector had already approached the MP without receiving a satisfactory response.

 

But surely the House of Lords is doing a good job at the moment?

 

Many members of the House of Lords work very hard, and the House has a good record in relation to scrutiny of Government, and tackling non-contentious issues or those that are either too detailed, or conversely too large, to fit easily within the day to day pressures of the Commons. This is among the normal roles of a second chamber.

 

Its record in relation to legislation is more debatable. It gives close scrutiny to Bills, often focussing on issues that are not fully explored in the Commons. Many smaller improvements come about as a result of this process. It has also had some successes in securing changes to controversial proposals, both before its partial reform in 1999 (eg over local government bills in the 1980s) and more particularly since. (The pattern of a more active second chamber has been established since the 1970s). It is perhaps most effective, however, not in major set-piece confrontations with Government over controversial bills, but over medium-range issues where the political cost to Ministers of changing direction is less pronounced.

 

However, its part-time nature means that the timing of votes, and variable factors such as whether Crossbenchers are in attendance (since they are not present for much of the time), have a disproportionate effect on both the content of a debate and the outcome of a division.

 

The core point is that the House of Lords in its present form lacks the democratic legitimacy to make its views count both within Government, and with the public.

 

What would be the ideal composition for a reformed House?

 

A chamber that was 80% elected, with 20% Independents would offer democratic legitimacy, combined with retaining the different contribution of some experts. This composition would also serve in itself to assist the maintenance of the position of the Commons, by including an unelected element. Furthermore, as a matter of arithmetic, it would be more difficult for one party to control the second chamber, which has been generally acknowledged to be desirable.

 

A 100% elected second chamber would most fully express the democratic principle, strengthen the second chamber further than an 80% composition, and increase the accountability of that chamber to the electorate. It would follow the pattern of most other second (or subsidiary) chambers, in being composed entirely of elected persons.

 

But wouldn’t an elected second chamber consist merely of third rate politicians?

 

This is often asserted but without any basis. The roles would be different from those of MPs, particularly in relation to legislative revision, as they are now. The job could be expected to attract representatives with different experience, and it might be that a single term (as proposed in the Bill) would attract fewer of those seeking a long career in politics. There is no reason to believe, however, that they would be people who, as is sometimes claimed, “could not get into the Commons”.

 

More likely, they would either be talented members of their parties whose working lives or professional careers had taken a different course to that point, and who effectively came into the House from varied walks of life, bringing that experience with them; or, they would be former MPs who wished to move into a less intensely political environment (particularly if the term were shorter than the 15 years currently proposed). Neither would seem likely to represent a weaker calibre of politician; but equally either might be considered unlikely to threaten the position of MPs.  

 

What powers should an elected second chamber have?

 

Consistent with the framework set out above, these should be: power as now to delay primary legislation for about  one year (or possibly a shorter period) as determined in the Parliament Acts; power to amend manifesto Bills, but not to subject them to wrecking amendments; power (subject to the Parliament Act limit) to reject a non-manifesto Commons bill, in exceptional circumstances, and otherwise to amend it; power (as now) to send amendments to the Commons, and to reject Commons amendments in lieu, up to a limit (eg three rounds of voting) before the outcome is determined by a conciliation committee of both Houses, chaired by an MP; power to delay a statutory instrument for one month, subject to automatic acceptance of the same or a replacement instrument after that period; power to scrutinise Government proposals and measures generally; power to hold Lords Ministers to account. No powers over public spending (other than possibly to advise through a committee on technical aspects of the Budget, as now).

 

 

Damien Welfare,

Co-ordinator, Campaign for a Democratic Upper House

www.democraticupperhouse.org.uk; democraticupperhouse@gmail.com; 07947 616821

 

The Campaign is a grouping of Labour Parliamentarians and members who support a second chamber that is wholly or largely elected.