House of Lords Reform Bill
The Campaign for a Democratic Upper House (CDUH) is a grouping of Labour Parliamentarians and members, formed in 2000, who support a second chamber that is wholly or largely elected.
This briefing sets out the key arguments for a democratic second chamber, and responses to opposing points. An Appendix briefly summarises the Bill.
Summary of key points
(i) Reform of the House of Lords is a touchstone issue for the advancement of democracy in the UK. The Campaign calls on Labour MPs to make a strong case for the principle of democratic reform: that those who make the laws should be elected by those who are subject to them;
(ii) Labour can claim much of the credit for Lords reform. It has taken key Lords reform measures in the past (especially in 1999), and the Bill is based on its 2008 White Paper;
(iii) The Bill has been improved as a result of the pre-legislative scrutiny by the Joint Committee, chaired by the Labour peer, Lord Richard;
(iv) Fears of a threat to the primacy of the House of Commons can be answered;
(v) The House of Commons approved the principle of democratic election for the second chamber in 2007, and all three party manifestos in 2010 supported the principle of its democratic reform;
(vi) The argument that “now is not the moment” is bogus. There is never an ideal moment for constitutional reforms, and previous reforms have taken place in the midst of austerity, or political crises, or with no consensus between the parties as with devolution or the Parliament Acts;
(vii) The costs suggested by opponents of reform are greatly inflated, and use assumptions that do not correspond with the proposals in the Bill.
(i) The principle of democratic reform
1. There are four main reasons for reform:
a. it is a fundamental principle in a democracy that those who take part in making the laws should be chosen by those who are governed by them. The UK has exported the democratic principle around the world, and claims to be the “Mother of Parliaments”, and yet we tolerate the absence of democracy from the heart of one half of our own political system;
b. most large democracies have second chambers; and with the exception of Canada, they are wholly or largely democratic. There is no overriding reason in the 21st century why the UK is different from other democracies, and less able to adopt a democratic political structure;
c. the second chamber currently lacks the legitimacy to give its views weight within Government. If its views do eventually carry the day on an issue (which is quite rare), it is usually because of chance political factors; eg the shortness of time left in a session. It is certainly not because the Government of the day recognises that weight should be given to a so-called House of “expertise”, which is barely if ever mentioned in debate on Bills. Because of the relative weakness of the Lords, the House of Commons is weaker too in its relations with Government than would otherwise be the case. A democratic second chamber would enable Parliamentarians in both Houses to work together more than at present on particular issues, challenging the approach of “divide and rule” whereby Government too often plays one House off against the other;
d. 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. Instead, the present chamber is biased in terms of numbers to London and the South East. Objectors say that reform should await the outcome of the referendum on Scottish independence. This is not the case. If Scotland became independent, the composition of an elected second chamber would obviously change to reflect it. The possibility of a strengthened Scottish voice at Westminster could be seen as having advantages for that country, as also for Wales and Northern Ireland, and for those in the regions of England.
(ii) Why Labour can take much of the credit for the Bill
2. Reform of the House of Lords (or, on occasions, its abolition) has been a Labour objective from the very earliest years of the Party. The Attlee Government limited the Lords’ power of delay from two years to one in 1949. Most of the hereditary peers left in 1999 under Tony Blair. The proposals in the draft Bill closely follow, and arguably were made possible by, the previous cross-party talks and the 2008 White Paper led by Jack Straw.
3. In the Party, the National Policy Forum has voted strongly for a wholly elected House (2010). Many CLPs and members since 2000 have supported a democratic second chamber in Conference votes, at its Fringe meetings, and in past consultation on the issue under the Labour Government. As the opinion polls have shown, moreover, an elected second chamber has wide support amongst the public.
(iii) Improvements by the Joint Committee
4. A majority of the Joint Committee approved the democratic principle for the second chamber, and a composition of 80% elected and 20% appointed. The Joint Committee found that 300 members were too few to enable the House to carry out its functions and recommended 450, to which the Government has agreed. The Committee was heavily critical of the original Clause 2, which declared the primacy of the Commons to be unaffected by the provisions of the Bill, and it has been withdrawn. The committee, however, also reported the views of the lawyers, Lords Pannick and Goldsmith, that concerns over the application of the Parliament Acts to the new House could be resolved by express reference to the Acts in the Bill, and the Government has listened to that recommendation in the new Clause 2.
5. The Government has not agreed a recommendation that there should be a Concordat between the two Houses as to conventions, formed by parallel identical resolutions prepared by a Joint Committee and adopted by each House; although it has recognised that this could be a matter for consideration once the elected members begin to arrive in the second chamber (Lord Strathclyde, Lords Hansard, 27th June 2012, Cols 245-6). It has taken the same view in relation to a proposal for a dispute resolution mechanism between the two Houses.
6. The Joint Committee approved STV as the electoral system (as then proposed in the draft bill), and recommended the system operated in New South Wales, which allows a choice of voting for a party or individual candidates. The Government, however, says that it has listened to the committee’s concern that the role of MPs should be differentiated from that of the elected members of the second chamber, and has moved to a list system based on regions/nations (as in the European elections) as the districts for the elections, using semi-open lists. The Government has agreed with the Joint Committee that closed lists (as currently used for the EU elections here) should not be used. Under the Bill a voter will be able to vote for a party, an individual candidate on a party list, or an independent candidate. An individual on a party list will be elected ahead of his party colleague if his preference votes comprise at least 5% of the party total.
7. The Joint Committee recommended that appointed members should not be full-time, and that IPSA should consider whether they could elect to receive a per diem allowance rather than a salary. It also recommended that there should be no allowances for constituency offices for elected members. The Government has accepted the latter recommendation, and considers the former to be a matter for IPSA to determine. It has based its estimates of costs, however, on a much lower level of staffing for elected members of the Lords than MPs. While the level of payment to elected members of the Lords will be determined by IPSA, the Bill provides that they may not earn more than an MP, and that there is to be a relationship between their pay and the level of their participation.
(iv) Primacy of the House of Commons
8. Nobody proposing a reformed second chamber believes that the second chamber should have primacy. 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.
9. The majority of the Joint Committee, “while acknowledging that the balance of powers between the two Houses would shift, consider[ed] that the remaining pillars on which Commons primacy rests would suffice to ensure its continuation” (Report, Conclusion 6.11). The bedrocks of the relationship are:
a. the Parliament Acts 1911 and 1949, which enable the Commons to pass its legislation without the agreement of the Lords over two sessions and after a delay of about one year; and which prevent the Lords from vetoing a Money Bill;
b. the financial privilege of the Commons, asserted since the late 17th century, which gives the Commons control of all public spending (eg Bills of Aids and Supplies; amendments to Bills with financial implications).
10. Neither is changed by the Bill. The automatic application of the Parliament Acts is now achieved by the express reference to the Acts in Clause 2.
11. The Joint Committee considered that the conventions governing the relationships between the two Houses should be set out in a Concordat between them. This would take the form of parallel, identical resolutions agreed by each House, setting out the conventions as they currently stand (or with any agreed changes) so that they are clearly and publicly stated. [Joint Committee Report, Recommendations 6.15-16; paragraphs 89, 93]. They could be reviewed thereafter, and any new conventions (or modifications of existing ones) could be promulgated under the Concordat. In line with the report of the Joint Committee chaired by Lord Cunningham in 2006, the Joint Committee on the Bill proposed that work should begin as soon as possible, for completion after 2015. These proposals are not in the Bill (and by definition are outside statute). The Government has said that it would be open to the new House to pursue this approach after 2015 (see above); although the question arises whether it would not be more beneficial to achieve a wider understanding from the outset as to the political framework in which the new House would be expected to operate.
12. The role and functions of the second chamber (which the Bill does not change) are secondary ones. In the Campaign’s view, the second chamber should have five main roles, only one of which adds to those of the present House of Lords. It should:
a. 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;
b. scrutinise Government, both as to the detail of issues and in relation to larger-scale or long-term questions;
c. inquire into issues of national concern, that transcend party debate or that raise issues outside politics;
d. 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);
e. continue to 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.
13. 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:
a. choosing and maintaining a Government;
b. forming that government, and providing most of its Ministers (including the senior ones);
c. controlling public spending; and,
d. having the final say over legislation.
14. Those who claim that elected members would automatically seek to exercise their powers to the limit, and could challenge the Commons, fail to take account of the fact that the role of the second chamber would be more limited than that of the Commons, and that any attempt to claim a larger role would fly in the face of the public and political consensus, backed by the Parliament Acts and the conventions, that the House of Commons has primacy.
15. Opponents often assume that the primacy of the Commons rests on its having been the only elected House. In fact, the Commons’ primacy over finance pre-dates the mass franchise by some 150 years. Similarly, the gradual assertion in the 19th century of Commons’ primacy over legislation began before the mass franchise. Even by 1911, when the first Parliament Act was passed, the first extension of the franchise to women was still seven years away.
16. There has been a concern that elected members of a second chamber could interfere with the constituency role of MPs. This risk has been exaggerated. The roles are different, with the members of the second chamber not expected to undertake constituency work. Even if they wanted to intervene in local casework, an elected member of the second chamber with an electorate of the size of a region, and who has been elected from a regional list, is unlikely to be able to do so to any significant extent in any given area of the size of a Commons constituency. Members of the European Parliament have not significantly affected the constituency role of MPs for the same reason, despite initial fears that they would do so.
17. While members of the public approach peers now, this is more usually over policy questions rather than over personal issues or problems with public services leading to casework; and this pattern can be expected to continue.
(v) Previous votes in the House of Commons
20. Some Conservative MPs have argued that there should be a free vote on the Second Reading. There is no parallel between a vote on options, when the House is effectively being consulted, and a vote on a Government Bill, where the Government has brought forward its measures. It is also not the case that constitutional measures generally receive a free vote. All parties had manifesto commitments on this issue at the last Election.
(vi) The argument that “now is not the moment”
(vii) Costs of reformed House
Labour’s approach to the Bill
27. Ed Miliband has been absolutely right to set out that Labour will support the Second Reading of the Bill. Support for the principle of democratic reform has long been our position. The introduction of a democratic second chamber was one of the main aims of the late Robin Cook, frustrated in 2003 when the House of Commons supported none of the options as to composition then on offer. In 2005, the cross-party “Breaking the Deadlock” group, which included Robin Cook and Tony Wright, proposed a House of 385 members, of whom about 70% would be elected under STV in regions. A third would be elected at the time of each Commons election, producing 12-15 year staggered terms. Most of the remainder would be appointed by an appointments commission, also on staggered terms.
28. In 2007, following cross-party talks, Jack Straw as Leader of the House, produced a White Paper setting out the options for reform before further votes by MPs. In March 2007, the House of Commons voted for the first time in favour of a second chamber that was 80% or 100% elected. This was followed by a further White Paper in 2008, also from Jack Straw as Justice Secretary, setting out proposals based on the Commons’ alternative positions. Many of the proposals in the current draft Bill are based on the 2008 White Paper. Labour proposed a reform whose essential features were:
a. House of 400-450, that was wholly or largely elected;
b. members to be elected in thirds;
c. elections on the same day as a General Election;
d. single non-renewable terms of approximately 12-15 years (ie three Parliamentary sessions);
e. the powers of the Second Chamber to remain the same
29. Members would be directly elected, although there was not in 2008 a consensus between the parties as to the electoral system as between STV (understood to be favoured then by the Liberal Democrats), open or semi-open regional lists, the Alternative Vote or FPTP (then favoured by the Conservatives). The present Bill’s proposal for semi-open regional lists is arguably closest to the then Labour position. (In our 2010 Manifesto we said that we would consult on open-list proportional representation for the second chamber).
30. Labour thus has a fair claim to the present proposals having been based on its own in 2008. The 2008 White Paper also said that the final proposals for reform should be included in a General Election Manifesto. Labour’s 2010 Manifesto outlined a House elected in thirds, starting from the following General Election, as the White Paper had proposed.
31. For these reasons, it is right that Labour should support the principle of democratic reform, give the Bill a fair wind in the Commons on the basis that it gives effect to that principle, and support its main proposals in the light of its 2008 White Paper and its historic approach.
32. On the programme motion, however, Labour has stated firmly that it supports proper debate of the key issues. This is very different, of course, from obstruction or wrecking tactics from Conservative rebels.
Responses to other arguments against reform
But surely the House of Lords is doing a good job at the moment?
33. Many members of the House of Lords work very hard, and the House has a good record in relation to scrutiny of Government, and in 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.
34. Its record in relation to legislation, however, is more debatable. It is true that 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. Most of the amendments passed, however, are Government amendments. 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 1980/90s) and since. (The pattern of a more active second chamber began in the 1970s). The House is perhaps most effective not in major set-piece confrontations with Government over controversial bills (on which it tends eventually to have to capitulate), but over medium-range issues where the political cost to Ministers of changing direction is less pronounced.
35. Factors such as the timing of votes, and whether the Crossbenchers are in attendance, have a disproportionate effect on both the content of a debate and the outcome of a division: Fewer Crossbenchers attend in the evenings, for example.
36. 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.
But wouldn’t an elected second chamber consist merely of third rate politicians?
37. No. The role would be different from that of MPs. It could be expected to attract representatives with different experience, and it might be that a single 15-year term 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; or former MPs. Neither would seem likely to represent a weaker calibre of politician; or to threaten the position of members of the House of Commons.
38. The present House is often described as a House of “experts”. This is inaccurate. The majority of its members are not independent “experts” but political appointees from the main parties (including many former MPs), who mainly vote along party lines. The Government and Opposition between them supply most of the business of the House, especially on legislation. The significance of the Crossbenchers can be exaggerated. They attend irregularly and as individuals. The role of expertise, moreover, while useful, is necessarily limited. Since no-one, however eminent, is likely to be recognised as a serious expert in more than one field, there are on most issues only a small number of peers who qualify as an expert. It is (rightly) never suggested that the House should let its view be determined by those few individuals. The Opposition (again rightly) has its own political priorities; and the Government of the day is rarely swayed by expertise. In set-piece confrontations between the two Houses over Bills, it is not argued that “expertise” should carry the day. Of the present House, it would be more accurate to say that a strand of expertise is one of its features, rather than a defining characteristic of the House as a whole. This would be preserved in the 20% appointed Independent element proposed in the Bill.
6th July 2012
For further information, see our website at: www.democraticupperhouse.org.uk
Appendix - Summary of the Bill
a. Composition: a House of 450 members, 80% of whom would be elected by thirds at each General Election. There would be 120 members elected at each election (Clause 1(1)), for a single term of 15 years each. The voting system would be semi-open regional/national lists, allowing scope for voting for individuals or parties (unlike the present system in European elections) (Schedule 3, paragraph 3). Electoral districts would be as set out in Schedule 1, with the distribution of seats in Schedule 2. Twenty per cent of the House would be independent members, appointed for 15 years, by a statutory Appointments Commission (Clause 11 and Schedule 5), according to criteria in Clause 17; and overseen by a Speaker’s Committee (Clause 12 and Schedule 6). There would be 21 bishops in 2015, reducing to 12 by 2025 (Clauses 19-23). There would also be a small number of appointments of members as Ministers (Clause 24);
b. There would be a transitional period, of three Parliamentary cycles. The Bill retains Option 1 of the Government’s proposals, under which one third of the existing peers would leave at each of the next three General Elections. The selection of the “transitional peers” who remain would be for the House itself. These members would receive only a daily allowance, as now,
c. The single non-renewable term of 15 years is intended to enhance the independence of elected members, and reinforce the distinctiveness of the reformed House. Election in thirds would prevent most members from having a more recent mandate than the Commons. The 20% appointed Independent members would, as well as retaining non-political expertise, further differentiate the memberships, make the House by definition less legitimate in democratic terms, and make it arithmetically more difficult for one party to command a majority;
d. Restrictions on composition: a person could not be a member of both Houses (Clause 39) or stand for both at the same time (Clause 40). A former member of the Lords would be disqualified for 4 years 1 month from becoming an MP;
e. Powers: Clause 2(1) provides that the Parliament Acts should continue to apply to the new House. No changes to powers are proposed in the Bill. The roles of the two Houses would remain as now (and are not a matter of legislation) – ie scrutinising legislation, holding government to account, and conducting investigations. The House of Commons would remain the primary chamber, assisted by differences such as elected members of the second chamber having only one term of 15 years; the continuation of the appointed element; the election of the second chamber in thirds every five years; and, by a different voting system;
f. Pay of members: this would be set by IPSA (Clause 46), with a relationship between pay and participation (new section 7B(2)). The amount of a member’s earnings may not exceed that of an MP, other than for office-holders (Clause 46(1); new section 7B(4)). Allowances for specified expenditure would be payable, but not for a constituency office (new section 7D(9));
g. Other provisions: there would be disqualification of members, as in the Commons (Clauses 26-28; and 30-35); members of the Lords would be able to vote in elections for the House of Commons (Clause 50); the name of the second chamber would remain unchanged.
 Some have argued recently that the Lords do not make the laws, but only “advise” on them. This is incorrect. No Bill, other than one passed under the Parliament Acts, is enacted without the agreement of both Houses.