House of Lords reform

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The UK legislature is bicameral, that is, consisting of two chambers: the House of Commons and the House of lords. Until 1999, the House of lords was the largest legislative body in the world, comprising - in theory - about 1200 members. Many of these members were holders of hereditary peerages - the result of honours conferred by kings on their ancestors. Complaints that the House was not representative of the populace, and was a hazard to democracy, starting leading to proposals for its reform in the 19th century. Until the present Labour Government took office, few of these proposals came to fruition. Then in 1999 the House of lords Act swept away the power of most hereditary peers to vote. This was supposed to have been the first step in a larger program of reform, but the next steps proved harder to take than the Government expected. Why is this? Why is reform of the House of lords so difficult? Do we need a House of lords anyway? This article discusses these issues, but to understand why reform is such a problem, it's necessary to know a bit about the historical development of the Lords.

A brief history of the House of lords

In the two centuries after the Norman conquest, the irregular meetings of the English kings and their barons and bishops - the aristocracy of the day - developed into a form of parliament that we would recognise. In the 11th century, the king was advised and supported primarily by the Curia Regis, or 'King's Court', comprised of these aristocrats. We do not know in detail how this baronial assembly gave way to a more representative form of parliament, but it seems clear that by the middle of the 12th century the shire courts - the early manifestation of regional democracy - were being asked to send representatives to the Curia Regis. This is probably the earliest manifestation in England of a representative democracy, albeit a notional one.

There were a number of reasons why kings would need to seek the consent and advice of regional representatives, not least of which was that they relied on the shires for raising finance. Although a feudal king theoretically 'owned' all the land in the country, and was entitled to a portion of all that the land produced, this was not sufficient to finance the business of government, nor the continual debilitating wars of the time. So, although the early Norman kings and their successors did not to summon a parliament very often, nor for very long, they knew that regional support was required.

Another reason for the king to summon regional representatives to the Court was to balance the power marshaled by particular factions of the aristocracy. One of these factions, led by Simon de Montfort, Earl of Leicester, probably precipitated the first recognisable modern parliament. The so-called 'model parliament', was summoned by Edward I in 1265. It consisted of two knights from each shire, two burgesses from each borough, and two citizens from each city, in addition to the King and the aristocrats of the Court. This parliament was specifically called to settle constitutional disputes between the King and de Montfort, but the same form of parliament became the rule from the beginning of the 14th century. We can see here the origins of the Lords/Commons divide that makes up the modern Parliament; in fact the word 'Commons' is probably a corruption of the French communes, 'community', and nothing to do with 'commoners' as is often supposed. In fact, the common citizenry were not invariably called to Parliament: the Commons was represented most actively by the knights of the shires.

A bicameral Parliament became evident from about 1332, when it is thought that the first meeting of the knights and the burgesses took place outside the Court itself. Opinions differ about when the first recognisable, formal siting of 'the Commons' occurred, but it appears that first Speaker of the Commons was elected in 1377, and the body must have been well established by then. Even this early in its history, support of the Commons was required for all Bills involving taxation; by the early 15th century its approval was needed for all legislation.

During the same period of time that the informal meetings of the shires were developing into a House of Commons, the Curia Regis was developing into a recognisable House of lords. In the 11th and 12th centuries, barons were summoned to the Court sporadically, at the whim of the king. In the early 14th century, there developed the notion of 'peerage', that is, the right to sit in Parliament as a member of the Court. The first recognisable hereditary peerage was granted in a 'barony by patent' to John Beauchamp in 1387; this barony carried a right to sit in Parliament; the right was to descend to male heirs. By the early 15th century, the majority of the aristocratic part of Parliament was hereditary.

So, by the 15th century we have a recognisable bicameral Parliament. The 'Upper House' consisting of hereditary peers, descended from people honoured by the king, and a 'Lower House', consisting of representatives of the community. Then, as now, the Upper House had the greater status and prestige, but both had equivalent powers over legislation, and the Lower House had control over the nation's finances. The reluctance of the Upper House to interfere with finance survives to this day. Apart from these 'money Bills', legislation had to be approved by both Houses.

The next two hundred or so years of stable Parliamentary composition saw an increase in the power of Parliament against the king; these developments culminated, of course, in the civil wars of the 17th century. By the end of this period the notion of Parliamentary Sovereignty was firmly enshrined in the Bill of Rights, along with a constitutional limit to the power of the monarchy. The House of lords was abolished for a short time under the administration of Cromwell, but was eventually restored along with the monarchy.

Between the 18th and 19th centuries, the Commons became the dominant power in Parliament, largely because it controlled taxation. By controlling taxation it controlled finance, and by controlling finance it controlled government. During this period the party system of government developed, and it became reasonable to refer to the party in the Commons with the majority as 'the Government'. It might be supposed that the power of the Commons derived from its popular mandate, but this is only partly true. In fact, the 18th century Commons was probably less representative than some medieval parliaments. Although there had been moves towards popular elections, in practice only about one in twenty adults was entitled to vote, and vote-buying and other forms of corruption were widespread. The Reform Act of 1832 - which went some way towards correcting these deficiencies - was widely welcomed by the populace. In fact, the Whig majority in the Commons had been gained its electoral success primarily by making its implementation an election manifesto commitment. The Act was initially opposed both by the Lords and by the King. Nevertheless, the Commons was able to implement it, showing finally where the real power lay. One of the tactics that was used was for the Commons to persuade the King to grant, or at least threaten to grant, a large number of peerages to people favourable to the Commons' cause. This trump card has been played by the Commons against the Lords a number of times, as we shall see.

The Reform Act led the Lords to accept that it would not, and indeed could not, stand against the Commons when it represented the unequivocal view of the populace. However, it could assert that the only way the will of the people could be determined was by a general election. This gave the Lords a political weapon; if peers tended to side with the party which was not currently in the majority, they could effectively bring about a general election. Since the Lords tended to side with the Tory party (later the Conservative party), a Whig (Liberal) majority in the Commons was obviously going to have problems exercising the priority that it felt it should enjoy. During the late 19th and early 20th centuries, the Commons came to see the Lords increasingly as an inconvenience rather than as an ally. For example, the Lords was able to block passage of the Irish home rule Bill proposed by Gladstone in 1893. However, none of the 19th century attempts at reform were successful.

Reform measures since 1900-1999

Matters came to a head in 1906 when the Lords rejected social reform measures proposed by the Liberal Government of Lloyd George and supported by the Commons. In 1907 the Government proposed measures to limit the power of the Lords, which responded by vetoing the 1909 Finance Bill. This was a particularly confrontational step; remember that the Lords had a 500-year tradition of not interfering with money Bills. Even after two general elections in 1910 had returned the same Government to power, the Lords was not prepared to accept the proposed limitation on its powers. The matter was only resolved when the commons played their joker, and King George V made it known that he was prepared to create 400 new Liberal peers to overwhelm opposition. Thus the Lords were compelled to accept the 1911 Parliament Act, which removed the power to veto a money Bill altogether, and reduced the power of veto in other matters to a power to delay for two years.

Even this reduced power of veto allowed the Lords to disrupt the progress of Bills proposed in the last two years of a Parliamentary term, as it could seek to delay the legislation beyond the end of the Parliament. This was a particular problem in 1945 when the new Labour Government wanted to carry out a significant program of nationalisation against the wishes of the Lords. It therefore had to invoke the 1911 Act to introduce the 1949 Parliament Act, which reduced the delaying power of the Lords to one year. Under the Parliament Acts, Bills must still be considered by both Houses, but the if the Lords delays its approval for more than a year, the Bill can be enacted without it.

Another important move was the enactment of the 1958 Life Peerages Act. This allowed the monarch, usually at the request of the Commons, to create peerages for life. This reform was first proposed by Prime Minister Salisbury as early as 1880. By creating life, rather than hereditary, peerages, it was hoped that the size of the House of lords could be brought under control. This move has not been without its own problems, as we shall see.

The Labour Government of 1966 came to power with a manifesto pledge to reform the Upper House. Its proposals included the abolition of hereditary peerage, and a limitation of the size of the House to 230 voting members. Existing hereditary peers could continue to sit as 'non-voting members' for the time being. Controversially, the measures guaranteed the Government of the day a majority in the Upper House (albeit a small one) by granting it the power to nominate most of the voting members. These proposals were accepted by the Lords, but rejected in the commons by both the Conservative opposition and Labour's own back-benchers. Chief among the dissenters was a bizarre alliance of Enoch Powell and Michael Foot, almost the opposite ends of any civilised political spectrum. Mr Powell was opposed to any change at all; Mr Foot was opposed to anything except outright abolition. More moderate objectors claimed that there were no provisions to prevent the Upper House becoming the object of political patronage. With the Government free to guarantee a majority, the Lords would lose its ancient power to moderate the behaviour of the Commons. When the reforming Bill was debated on the floor of the House of Commons in 1968, the objection was so fierce, and the number of amendments tabled so large, that it took eleven days to debate the first five clauses. The Government eventually withdrew the Bill altogether. No serious challenge was mounted to the House of lords again until the Labour government of 1997.

The 1999 reforms

In 1997, the present Labour Government came to power with a pledge to reform the House of lords. Labour's proposal had two stages. In the first, the powers of hereditary peers were to be abolished. In the second, there would be wide consultation on the future composition and powers of the Lords, with a view to implementation of definite reforms within two Parliamentary terms. Although there was disquiet about whether it was a good idea to abolish hereditary peers without deciding what to replace them with, the 1997 Government had something it had never before enjoyed: a huge Parliamentary majority. It was further spurred into action by the Lords' repeated rejection of the European Elections Bill. Thus, despite widespread misgivings, the 1999 House of lords Act abolished all but 92 hereditary seats. At the same time, the Government appointed a Royal Commission, chaired by Lord Wakeham, to consider the long-term future of the Lords.

Things fall apart

The Wakeham Commission's report was largely adopted in the Government's White Paper (Cm 5291) of 2001. This advocated an Upper House with 120 elected members and the rest - about 400 - to be appointed. It also recommended the expulsion of the remaining 92 hereditaries. The overall powers of the House were to remain largely unchanged. Labour had just been returned to power after a general election, again with a large majority, and there seemed to be little to stop it pushing through the second stage of reform. Once again, things did not go according to plan. With hindsight we can see that the objections raised in 2002 were entirely predictable: they were no different from those that were expressed in 1968. In brief, the composition of the Lords - primarily nominated by the Government - provided no confidence that the new body would have real legitimacy and authority. Moreover, it was clear that very few people on either side of the debate were happy about the notion of a 'hybrid' House - part selected, part elected. Public opinion polls overwhelmingly supported the introduction of a directly elected House, but the Government was opposed to this development - and remains opposed, as we shall see. The Government therefore announced the formation of a cross-party consultation committee, and eventually, a free vote in both Houses on the proportion of the Lords that would be directly elected. But even the Government could not agree amongst its own membership how the reforms should go forward. The Prime Minister and the Lord Chancellor eventually came down in favour of a wholly selected House, while the Leader of the Commons - Robin Cook - openly campaigned for it to be mostly elected. Mr Cook was supported by a majority of Labour back benchers, and - surprisingly perhaps - the Conservative front benches. When the vote was held the Commons rejected all the proposed compositions of the Upper House. The cross-party committee wound itself up in despair, and the general feeling in Parliament was, and still is, that the reforms had completely lost momentum.

So why is there such a problem?

A hereditary legislature is clearly an anachronism, and the intensity of desire for reform is unsurprising. What isn't clear, however, is what the existing Upper House should be replaced with, or even whether it needs to be replaced with anything. I suggest that the reason that reform of the Lords is so problematic is that the simple question how shall we select the members of the House of lords is actually a composite of a number of related questions. Most members of the public, and at least some politicians, have not realised this, and have proceeded to argue on the basis that there's only one question. The first 'implicit' question has to be: do we need a bicameral legislature at all? This question can be answered without regard to the detailed composition of the second chamber and, to a certain extent, without full knowledge of the the powers it should hold. If the answer to this question is 'no', then subsequent questions become moot. If it appears that we do need a second chamber, the next question is: what should its powers and responsibilities be? The existing House of lords has responsibilities beyond the legislative; its members sit on select committees, for example. Should that function be assigned to a different body altogether? Having answered that question, only then we might be in a position to consider how its membership is arrived at.

Do we need a second chamber at all?

Supporters of the Lords point out that most modern states have bicameral legislatures, in which the chambers have complementary responsibilities. For this to work, the two chambers have to be comprised of different kinds of member; otherwise we may just as well have a larger House of Commons. It has to be noted that not all democratic states have bicameral legislatures. Those that don't tend to have alternative methods to prevent over-hasty legislation. For example, in Switzerland there are well-established referendum procedures for assessing the acceptability of radical legislation. Alternatively, we could give the courts the power to scrutinise legislation against some form of overarching constitution, as is permitted in the USA. Abolition of the House of lords without some form of constitutional check on the Commons could undoubtedly lead to undesirable consequences. For example, it would be easier for a Government with a small majority to press through legislation that was not broadly acceptable to the electorate than it currently is.

Alternatively, it has been proposed that the process of scrutinising and revising legislation could be undertaken by specific committees of the Commons, and not by a second chamber. This approach avoids the problem of deciding how to select the membership of a second chamber, but it isn't obvious that it is really different from a fully-elected, small second chamber. Another possibility is to implement a more measured and less party-political method for legislating in the commons in the first place.

Another reason to continue to operate a bicameral system is simply to share more evenly the burden of government. There is a great deal of work for Parliament to do, and the House of lords currently does a fair amount of it. However, the benefit of sharing the work has to be balanced against the costs, particular when conflicts between the chambers result in an increased workload for both. Governments - particularly Labour Governments - often find the influence of the Lords as a second legislative chamber to be irksome rather than beneficial. The power of the Lords to delay legislation is still potent, particularly in the last term of a Parliament. The Lords retains the power to force all sorts of unwelcome amendments on Commons Bills. Of course, this is exactly what supporters of a second chamber favour; they don't see it as a disadvantage. After all, the courts are frequently irksome to the Government as well - witness Mr Blunkett's recent run-in with the High Court over welfare support for asylum seekers - and no-one is proposing we abolish the courts because they impede the business of government.

The present government is already finding that reforming the House of lords may increase the trouble it causes, rather than decrease it. A House of lords without its anachronistic hereditary element and a greater proportion of life peers has a greater measure of popular support and legitimacy, and is more willing to assert itself. Indeed, the number of amendments foisted on Government Bills by the Lords has gone up since 1999, not down. Further reform may make the second chamber, whatever it finally turns out to be, a real thorn in the side for the Government.

On the whole, it may be that the Lords could actually be abolished as a second legislative chamber without dramatic consequences, if suitable procedures were put in place to fill the constitutional vacuum that would be left. Moreover, there are many people who believe that total abolition of the House of lords would be preferable to retaining the status quo. However, I suggest that there are no compelling arguments in favour of a move to a unicameral system.

What should the functions of a second chamber be?

Part of the problem with reform results from the lack of consensus about what the Lords is supposed to do. At present the Lords can, and does, introduce and support new legislation. In addition, the Lords has the opportunity to scrutinise, and propose amendments to, Commons Bills. Many of these amendments are accepted, either because they genuinely improve the quality of the Bill, or for political expediency. The Lords also scrutinises the business of Government through select committees. In other words, the Lords mostly does the same as it has done for the last hundred years, which is to act as a restraint on the power of the Government to legislate.

The Lords also has a number of specialised duties, one of which is its Judicial Committee. This acts as a final Court of Appeal on matters of law, and comprises (at present) twelve law lords. However, the law lords aren't members of the Judicial Committee because they are peers, they are peers because they are members of the Committee. In fact, the law lords were the first life peers to be created. The Judicial Committee as a body could easily survive a reform, or even an abolition, of the House of lords. For example, it could be transformed into an entirely new organ of state (like the US Supreme Court), or perhaps merged with the Judicial Committee of the Privy Council - much of the membership of these two bodies overlaps anyway.

The Institute for Public Policy Research (IPPR) has put forward some interesting ideas about the duties of a new second chamber. It proposes an increased role for it before legislation is introduced into the Commons; it would investigate the need for legislation, and carry out preparatory enquiries. The IPPR also suggests that the second chamber should have particular responsibility for legislation concerned with human rights, and would monitor public appointments and the implementation into English law of EU directives.

How should it be composed?

If, overall, some or all of the functions of the House of lords are worth retaining, or new roles are introduced for a reformed second chamber, we then have to consider how its membership should be selected. There really are only three methods available for selecting public officials: having them nominated by other public officials, direct popular election, and by accident of birth -- the original hereditary system. Of course, we could use some hybrid of these systems. It has also been proposed that the second chamber could be picked at random from the public, in much the same way as juries are selected at present. Although this would ensure a high degree of representation, it isn't clear that the length of term any one individual could be expected to serve would offer adequate continuity to the role.

Those in favour of a traditional, largely hereditary House of lords stress the links it provides with the past, and the popular legitimacy it gives to Parliament as a whole. The first writer to stress this aspect of the Upper House was Walter Bagehot, who wrote in 1867 that the organs of government could be divided into 'dignified' and 'efficient' parts. The dignified parts were primarily the House of lords and the monarchy. These, said Bagehot, 'excite and preserve the reverence of the population'. The 'efficient' part of the government was the House of Commons - where the real work was done. What was appropriate in 1867 may not be appropriate in 2003. The public is better educated, has travelled more widely, and is exposed to far more information about the workings of government. One has to wonder whether the bizarre spectacle of the state opening of Parliament - the Queen and the Lords all strutting around in their robes, with the Commons gathered in a huddle at the back of the hall - is entirely appropriate in a modern democracy.

Proponents of a non-elected House of lords in any of its possible guises point out that the non-elected peers may have very different views to the Commons about particular pieces of legislation. This is in keeping with the general observation that the two chambers of a bicameral system ought to consist of people appointed in different ways, if they are to balance each other. In the Commons, a Government stands or falls by the effectiveness of its legislative programme in the eyes of the electorate. This effectiveness is tested at least every five years and, if the swings in mid-term by-elections are anything to go by, perhaps much more frequently. In the Lords, it is possible to take a longer view. Peers don't have to answer to the electorate, and can thus act in ways which are unpopular in the short term, but have long-term benefits. The extent to which this is would remain true of a reformed second chamber depends on the term for which its members hold office. Clearly the term of office would have to be much longer than a Commons electoral term. If length of term is the crucial factor, the same effect as a long-term appointment could be achieved with a directly elected second chamber, if electees held office substantially longer than a Commons term. Whether elected or appointed, the length of the term of office is clearly of crucial importance. The IPPS favours nine years; the Labour White Paper of 2001 favoured 12-15 years.

According to a survey recently carried out by the BBC, there is a great deal of popular support for a second chamber comprised of 'ordinary people' (i.e., not politicians) appointed by an 'independent' selection body. But what would the selection body be? What would make it independent? And independent of whom? Are politicians really that different from 'ordinary people' anyway?

Proponents of a fully-elected house very often stress the importance of popular elections for democracy. However, democracy is not an easy thing to define -- unless it is taken to be synonymous with popular election, of course. Similar arguments about democracy are often used by those in favour of the election of judges. In the end, if you are the kind of person that believes that popular elections are the ultimate expression of democracy - and many people do, and can provide cogent arguments to support their view - then clearly you will only be satisfied by a fully-elected upper house (and a fully elected judiciary and head of state, for that matter).

While one would not want to denigrate the role of elections in upholding democracy, I submit that democracy is not quite as simple as this: 'elected' is not synonymous with 'democratic'. Successive Labour Governments have asserted that the Commons has some sort of democratic mandate to govern that the House of lords lacks. In fact, this is rather disingenuous. Although we have over 600 MPs in the Commons, most legislation is introduced by Government ministers. While it is theoretically possible for an MP outside the Government to get a Bill enacted, in practice this is extremely unusual unless it is on a measure that the Government supports. Although some of the legislation is the result of manifesto commitments, and can thus be reasonably claimed to be based on public support, a great deal of it isn't. The Commons as a whole can delay and amend Government Bills, but if the Government has a large majority, it is unusual for it not to get its Bills through in the end.

Even where legislation does result from manifesto pledges, UK democracy is a blunt instrument. The voter is presented with a choice from small number of candidates for office, many of whom will be bound by party affiliations at least as strong as their duties to the people they represent. The major parties represent a diminishing range on the political spectrum, and many voters have come to feel that their views are not represented by any political party. This view is supported by the low electoral turn-outs in recent years. The 'first past the post' system of election does not necessarily return MPs in proportion to the number of votes cast in any case. Real democracy is about responding to the wishes of the populace. It is another question, and a difficult one, whether democracy is best served by responding to these wishes in the short term or the longer term. People are often deeply affected by tragic events, and a government that is too sensitive to public moods is prone to the kind of 'knee-jerk' legislation that is ill-considered and likely to be oppressive. Whatever the answer to this question, to claim that the appointment of the House of Commons is democratic, and that of the House of lords is not, oversimplifies a complex problem.

Mr Blair recently commented that the UK didn't need a 'rival House', that would challenge and interfere with the Government. He, along with the Lord Chancellor, believes that this is what we will get by directly electing the second chamber. But is this true? If we have a fully elected second chamber, elected in the same way and for the same term as the Commons, haven't we really got a second Commons? If people vote the same way for the second chamber as they do for the first, then it seems reasonable to believe that the party political balance in the two chambers will end up about the same. So would we not get the worst of both worlds - a second chamber that would be unwilling to interfere with the first on party grounds, and yet be in office for an extended period?

Despite these objections to an elected second chamber it is, I suggest, still a better solution than the alternatives. The hereditary system produced a House of lords that was significantly unrepresentative of the populace, and tended to have entrenched Conservative sympathies. An appointments system is open to cronyism and patronage, and it is difficult to see how an appointed second chamber can be any more representative than the people who are making the appointments. An elected second chamber would have popular support and legitimacy; if it were elected by proportional representation this would reduce the likelihood that the second chamber would divide along party lines as the Commons does. By making the term of office long compared to a single Parliament, but short compared to a lifetime, we can allow the second chamber to take a long-term view while still subjecting its members to the sanction of being removed from office if they don't live up to expectations.

What of the 'hybrid' systems of selection? The Commons recently was unable to show majority support for any mixed model of selection. The feeling seems to be that any such system would simply be a compromise, not a balance.

Conclusions

A precipitous abolition of the House of lords would leave a constitutional vacuum. However, I suggest that the problem is not insurmountable. A written constitution and a constitutional court to enforce it would go a long way towards limiting the likelihood of the Commons passing irrational and arbitrary legislation. Perhaps a second chamber with a modified composition would be a better alternative than outright abolition, but many people believe that even abolition would be preferable to leaving things as they are.

Of the various systems of selection that have been proposed for the reformed second chamber, none are without their problems, and none stands out clearly from the others as the best on its merits. The most cogent arguments seem to favour a second chamber that is directly elected by proportional representation, with each member serving for between 10 and 15 years.

See also House of lords, Court system of England.

Public Law