Select Committee on Public Administration Fifth Report


The Public Administration Select Committee has agreed to the following Report:



Who lies i' the Second Chamber?"



Our Task

1. This is the response by the Public Administration Select Committee to the Government's White Paper 'The House of Lords: Completing the Reform'.[1] It is based upon a short but intensive inquiry. We decided to undertake this inquiry in part because the Committee had already announced its intention to undertake a major inquiry into the appointed state when the White Paper was issued, but also because it seemed to us important for a parliamentary committee to have an opportunity to examine the Government's proposals as part of the consultation process (in the absence of the Joint Committee that had originally been promised).

2. We defined our task as a limited one. It was not to re-open all the issues raised during the Royal Commission inquiry, nor to duplicate the White Paper. Rather, it was to try to establish if there was a basis of agreement on which reform of the second chamber could proceed, against a background in which the Prime Minister had said: "it is clear that there are almost as many different views about what should happen with the House of Lords as there are Members of Parliament".[2] We were also anxious that any compromise should be coherent, principled and practical, and therefore capable of sustaining the momentum for reform.

3. Individual members came to the inquiry holding a wide variety of views on the ideal composition of the future second chamber. Many favour a wholly elected chamber, others prefer abolition and there are those who believe that there should be some appointed members. Had we started with a clean slate, we might well have come to a different conclusion. Indeed the majority preference on the Committee would have been for a wholly elected and much smaller second chamber. However we all share a desire for a stronger and more effective Parliament, and we see early and credible reform of the second chamber as an essential part of that.

4. There may come a time when the whole issue will be revisited afresh, and we envisage a review in the future. However, we did not want the present opportunity for further reform of the second chamber to be lost. We see the present debate as part of a continuing process of reform, and it is unlikely that we have heard the final word. But all three main Westminster parties have recently published their reform proposals, in some cases diverging considerably from previous positions. We believe that there is now a favourable climate for further reform, with a discernible trend of opinion, and that the opportunity should not be lost. We therefore felt a heavy responsibility on us to accept the context in which we were deliberating, and to find as much common ground as possible in order that the reform process could be sustained. In the light of the evidence we have heard, we have managed to agree on a number of key principles and on their practical implications. Our proposals are intended to help create the "more credible and effective second chamber" espoused by the Prime Minister.[3] We hope that our own ability to find an agreed compromise on the next stage of reform will help to point the way ahead.

Our analysis

5. It may be helpful at the outset briefly to sketch the underlying analysis that informs our approach to particular issues and to our recommendations. Unless the analysis is clear, it is unlikely that conclusions will be soundly based. We believe that there has been much muddled thinking on second chamber reform, with the result that there has been too much focus on some issues at the expense of others and often a failure of arguments really to engage with each other.

6. In our view there are some fundamental points. First, it is essential to know what second chamber reform is for. For us it is about strengthening Parliament as a whole in relation to an executive that is uniquely powerful in the British system. Strong government requires strong accountability, and an effective second chamber (along with a reformed Commons) has an important role to play in this. Second, the second chamber has to be neither rival nor replica of the first, but genuinely complementary. It should therefore be as different as possible. Its secondary status is firmly established by the existing distribution of powers, which is why many of the arguments about rivalry (and not threatening the pre-eminence of the Commons) are simply irrelevant. As one authority has put it, the UK has "in effect a unicameral system of government but with two chambers of Parliament".[4] Third, composition should be driven by function. The second chamber needs to be composed in such a way that it can most effectively discharge its functions, which are essentially those of scrutiny and revision. Fourth, those who advocate election have to recognise that some forms of election are no more than appointment by another name. Fifth, those who advocate appointment need to understand that it raises serious problems about legitimacy, which in turn impairs effectiveness, and that patronage is not regarded as an acceptable basis for a representative institution in a democracy.

7. It is from this analysis, in which there are competing considerations, that we have framed our general approach. We want a second chamber that is effective in its role. We pay particular attention to the need for both chambers to work more effectively together. We want a second chamber that has enough institutional legitimacy to ensure that it is taken seriously, and enough independence and expertise among its membership to ensure that it is worth taking seriously. This requires practical arrangements of an appropriate kind, including the balance between election and appointment. This is the case for a mixed House, with different streams of membership feeding into it, able to play the role of a standing civic forum as well as a processor of legislation. We believe that this would give the second chamber a distinctive and valuable place in our political system, complementing the House of Commons in the task of scrutiny and accountability and so adding value to the political system as a whole.

8. Three principles which should underlie the design of second chambers have been suggested by one authoritative commentator and we believe that they provide a useful checklist against which to judge the various proposals:

  • "Distinct composition. There are various ways in which the membership of the new upper house can be made distinct from that of the House of Commons. The method of composition may be different, but the party balance in the chamber will also be particularly important.

  • Adequate powers: If the new upper house is to be able to make an impact, and have bargaining power with the government and the lower house, it will need to have moderate to strong powers.

  • Perceived legitimacy: In order to use its powers the new chamber—unlike the existing House of Lords—will need to be seen to have legitimacy, and be able to carry public support".

Our approach

9. In recent years a number of commentators have identified a crisis of confidence at Westminster. The Hansard Society Commission on the Scrutiny Role of Parliament reported in 2001 that "Parliament has been left behind by far-reaching changes to the constitution, government and society in the past two decades". It concluded that there were "serious gaps and weaknesses in the working of accountability" and that "scrutiny of Government by MPs and peers is neither systematic nor rigorous"[5]. This was only one of a succession of reports which have discerned failings in the legislature's capacity to provide an effective check on the executive.

10. This Committee has a special interest in the performance and accountability of the public services. We are therefore particularly concerned at any weaknesses in parliamentary scrutiny, although we share the widespread hope that the work of the House of Commons Modernisation Committee can succeed in sharpening the performance of the House in this respect. This matters especially because, compared with many other mature democracies, the UK political system tends to produce strong governments and a weak legislature. That is one of the main reasons why it is so important that reform of our legislature should be effective.

11. The Government's reform programme covers both Houses of Parliament. In the Commons the key to its proposals has been the need to improve the scrutiny of legislation and the way in which Ministers are held to account. The latest product of this programme is the Memorandum from the Leader of the House to the Select Committee on Modernisation which appeared in December 2001.[6] This suggested, among other things, more effective use of time in the Commons chamber, an approach to question time that would make it more topical, and various initiatives to improve the scrutiny of legislation. The Modernisation Committee has also reported on ways of strengthening the independence and improving the operation of select committees.[7]

12. It would be a severe disappointment if the progress in prospect in the Commons is not matched by similar advances in the Lords. For it is the institution of Parliament as a whole which needs to raise its game. The Rt Hon Baroness Williams of Crosby told us: "I think it is absolutely crucial to strengthen the legislature and I think the legislature has got to see itself as having a common interest in doing this ¼ there is a great deal to be said for the two Houses discussing how best to scrutinise and question Bills as they come through...".[8]

The context of our inquiry

13. The Government has made House of Lords reform a leading element of its constitutional programme. The first stage of reform was completed in November 1999, when the House of Lords Act removed the majority of hereditary peers from the chamber. Issues relating to the second stage were considered by a Royal Commission, chaired by Lord Wakeham, which was asked to work quickly and which produced a report in January 2000.[9] The Government then attempted to establish a Joint Committee of both Houses to examine what it described as the parliamentary aspects of the Royal Commission proposals. However there was disagreement between the parties about the terms of reference of the Committee, and in particular about whether it should consider the composition of the House, with the result that the Committee was not established.

14. The Queen's Speech of June 2001 set out the Government's view of the way forward. The Government intended, after consultation, to introduce legislation to implement the final stage of Lords reform. This reflected the Labour party manifesto commitment of 2001:

"We are committed to completing House of Lords reform, including removal of the remaining hereditary peers, to make it more representative and democratic, while maintaining the House of Commons' traditional primacy. We have given our support to the report and conclusions to the report of the Wakeham Commission, and will seek to implement them in the most effective way possible. Labour supports modernisation of the House of Lords' procedures to improve its effectiveness. We will put the independent Appointments Commission on a statutory footing".[10]

15. The Government took the next step with the publication of a White Paper, 'The House of Lords: Completing the Reform' in November 2001. It made it clear at the time, and has since re-iterated, that this was a consultative document. It did not propose a Joint Committee. Responses were invited by 31 January 2002. The Government has in particular asked for views on these issues:

  • the balance between elected and nominated, and political and independent members.
  • timing of elections: should they be linked to European Parliamentary elections, general elections or regional elections?
  • length of terms for elected and appointed members: 15 years as recommended by the Royal Commission, or 5 or 10 years to give more accountability but less independence?
  • introduction of daily payments as well as expenses.
  • rules for disqualifying members.

16. The immediate response to the White Paper was largely unfavourable, as had been the earlier response to the Royal Commission (unfairly so in some respects). One criticism levelled against the White Paper was that it did not in fact implement the recommendations of the Royal Commission as the Labour Party's election manifesto had promised. This was the view of Royal Commission members. Lord Wakeham said just after the publication of the White Paper that the Government had:

" several things wrong. First of all, I wanted a wholly independent Appointments Commission. I wanted an end of Tony's cronies—or any politician's cronies. I wanted people appointed on an independent basis. And they seem to have gone soft on that.

"Secondly, I wanted the elected element in the House of Lords to be there for a long time rather than a short time, because I did not want them to be rivals of the House of Commons ... I think their idea of less than 15 years, something like 10 years or even five years, would be very damaging".[11]

17. Similar views were expressed by the Rt Hon Gerald Kaufman MP, a member of the Royal Commission, who told us "The White Paper to a very large degree on several particularly important matters does not implement the Wakeham Report ... I will not support this White Paper and I will not vote for legislation deriving from this White Paper because, as I say, I am committed to the Royal Commission Report and what is more as a Labour MP I am bound to the Wakeham Report by the manifesto pledge".[12]

18. Such negative reactions have tended to obscure the fact that the White Paper represented some movement in the Government position in some important areas, particularly in proposing an elected element in the chamber, a break with the honours system, and a statutory basis for the Appointments Commission. The final departure of the hereditary peers will remove a remaining obstacle to greater legitimacy for the second chamber. More generally, the Government have maintained the momentum for reform. It is vital that this momentum is not lost.

19. This was the starting point for our inquiry. In December 2001 we decided to take evidence on the White Paper. We have taken oral evidence from 18 witnesses and received 62 written submissions, and are very grateful to all those who have helped us with our inquiry. Although limitations of time and the specific focus of our inquiry meant that we had to confine our oral evidence to parliamentarians, we have received some very useful written evidence from members of the public and outside experts. We have benefited greatly from the expertise of our Specialist Adviser, Professor Robert Hazell, Director of the Constitution Unit, University College London. We have approached this inquiry in a spirit of urgency. We hope that the Government will respond in similar vein, replying to our Report well within the two months required by convention.

1   Cmd 5291, 2001 Back

2   Official Report, 9 January 2002, Col 538 Back

3   Foreword, 'House of Lords: Completing the Reform' (Cmd 5291)  Back

4   Vernon Bogdanor 'Power to the People: A Guide to Constitutional Reform', Victor Gollancz, 1997, p119 Back

5   'The Challenge for Parliament: Making Government Accountable', Hansard Society, 2001 Back

6   'Modernisation of the House of Commons: A Reform Programme for Consultation' HC 440, 2001/02 Back

7   'Select Committees', Modernisation Committee, First Report .HC 224 2001/02 Back

8   HC 494-i, Q71 Back

9   'A House for the Future', The Royal Commission on the Reform of the House of Lords, Cmd 4534, 2000 Back

10   Lords Hansard, 20 June 2001, Col 6 Back

11   BBC1 'Breakfast with Frost' 11 November 2001 Back

12   HC 494-iii Q483 Back

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Prepared 14 February 2002