Select Committee on Public Administration Appendices to the Minutes of Evidence

Memorandum by Dr Tony Wright MP (LR 2)


"Who lies i' the second chamber?" (Macbeth)

"If we had an ideal House of Commons .... it is certain we should not need a higher chamber" (Bagehot)

  1.  In this evidence I confine my remarks to those matters which I believe to be of fundamental importance and on which I have an opinion. The evidence therefore makes no attempt to cover the whole field of questions raised in the Commission's consultation paper. My concern is with the general shape and direction of the Commission's work, on which all else turns.

  2.  It is rare to have an opportunity to review and reconstruct a central institution of the political system, especially where reform has proved so elusive in the past. Yet this also imposes a considerable responsibility: to find an approach that both commands wide support now and proves durable in the future. This means engaging with fundamentals. There will be a temptation for the Commission (and perhaps pressures on it) to find its way around issues rather than resolving them. I urge the Commission not to succumb to fudge, either in its general approach or in its particular recommendations. Only clarity of analysis, and boldness of prescription, will ensure that this is not another abortive episode of Lords reform.

  3.  The starting point has to be an understanding of the central problem of the political system to which a reformed second chamber would provide a significant part of the answer. Unless the problem is properly identified, an appropriate response is unlikely to be constructed. This precedes questions about powers, functions and composition. It is also why examination of second chambers elsewhere may not prove especially useful, for they answer (or should do) to the particular needs of different political systems for example, to represent states in federal systems or to reconcile divided and fragmented societies. Our situation, and our need, is quite different. Those who identify the central problem wrongly (for example, by suggesting that post-devolution integration of the United Kingdom, or the need to represent under-represented groups is the key issue) will also be mistaken in their proposed remedies. A second chamber will only be effective if it is a response to a need that has been correctly identified. It can certainly perform several functions, and respond to a plurality of needs, but its central role must be clear.

  4.  In my view there can be no serious doubt that the distinctive feature of the British political system to which a second chamber should provide a remedy is unchecked executive power. A generation ago this was famously described as "elective dictatorship". It is a commonplace among serious observers that the concentration of executive power available to a party government with a secure majority in Britain is unparalleled in comparable democracies. This is an observation, not a judgement. It reflects the way in which our political system has developed. It is said to reflect a predilection for "strong" government. One aspect of this, among many others, is the fact that we really have a unicameral system, with two chambers.

  5.  The system is poorly constitutionalised, lacking the familiar apparatus of checks and balances to be found elsewhere. Some of these are currently being developed. Devolution checks centralisation and promotes pluralism. The Human Right Acts offers protection for citizens. Freedom of information checks a traditional secrecy. Unregulated areas of the constitution (for example, party funding) are being legislated for. These are important developments, part of a constitutionalising trend, but they do not go to the heart of executive power. This is where a reformed second chamber is crucial.

  6.  Strong government has to be matched by strong accountability. At the moment this is not the case, with the result that the political system is unbalanced. The consequences, not least in terms of poor legislation and inadequate scrutiny, are well documented. It is the task of a reformed second chamber to achieve the rebalancing that is required. The watchword of reform should be accountability. It is this that identifies the central problem of the British political system and points towards the appropriate solution. In Britain an effective second chamber should be seen as a house of accountability.

  7.  This inevitably requires some reference to the House of Commons, for the relationship between the two Houses determines the character of Parliament as a whole. The Commons has many virtues, but accountability and scrutiny of a serious kind are not among them. It was once described, accurately, as the scene of a permanent election campaign. Its partisan character routinely trumps its collegiate character. Its politics are rough and raw. It lives on immediacy. Party dominates all; and its career structure does not reward a concern for accountability. There is no indication so far that the "modernisation" of the Commons will alter this picture in any significant way. It is because the Commons is like this that a reformed second chamber is so essential—and why reform has to be crafted in such a way that it is genuinely able to fill the accountability gap.

  8.  If this is seen as the task, then the potentially troublesome questions about the relationship between the Commons and a reformed second chamber become easier to answer. The Commons is the primary chamber, always able in the last resort to get its way. It is the directing, initiating and governing chamber. It is rooted in an electoral system which (even in the increasingly unlikely event of the Jenkins reforms being implemented at some future date) has a bias towards the production of majority party governments that have a final political accountability to the electorate. None of this will, or should, change. What should change is the ability and credibility of the second chamber in relation to the continuous activity of accountability. A second chamber is required that is neither a rival nor replica of the primary chamber. Its role is to be genuinely complementary. It is precisely because the Commons is like it is that the second chamber has to be enabled to become what it needs to be in order for Parliament as a whole to perform its functions more effectively.

  9.  The particular functions of the House of Lords—in revising, amending, checking, scrutinising and inquiring—are well established. They can and should be developed further, drawing upon the existing strengths of the Lords and involving areas where parliamentary scrutiny is currently weak. Obvious candidates are pre-legislative scrutiny (why is legislation wanted and is it likely to work?), post-legislative scrutiny (how well is the law working?), secondary legislation, Next Steps executive agencies and quangos, and cross-cutting thematic inquiries on complex issues (which the departmental select committees in the Commons are not well equipped to undertake). European scrutiny, already well established, provides a further area. A reformed second chamber, charged with accountability, will have ample scope to develop its functions and activities.

  10.  I agree with those who emphasise the particular role of the second chamber in constitutional matters. A feature of our system is the failure to make any distinction between "ordinary" and "constitutional" legislation (except in terms of certain procedural conventions). This is an accountability gap that a second chamber should properly fill. It is already recognised in terms of powers in relation to any proposal to extend the life of a Parliament; and in terms of functions in the work of the Delegated Powers and Deregulation Committee. This constitutional role should now be made explicit and its implications explored for other areas of activity. It should be the place where standing scrutiny of our constitutional arrangements takes place. I hope the Commission will pay particular attention to the ways in which the role of the second chamber in constitutional matters can be extended and strengthened.

  11.  This raises the matter of powers. In my view the existing powers of the second chamber are generally satisfactory, except in constitutional matters. The exemption from the Parliament Act provisions in relation to any proposal to extend the life of a Parliament should be extended to other matters of fundamental constitutional importance (for example, any attempt to remove the rights of opposition). On such matters only a referendum should break a deadlock. Beyond this, in a reformed second chamber the self-imposed constraints on powers (as with the Salisbury Convention) will no longer be necessary or appropriate. In a reformed second chamber, more confident in the use of its existing powers, new arrangements will be needed to resolve disagreements between the two Houses and prevent gridlock. Such arrangements will enshrine the final primacy of the Commons, but also safeguard the rights of the second chamber to be heard. This is another matter to which the Commission will need to give particular attention.

  12.  None of this can be done satisfactorily until and unless the matter of composition is resolve. Without any underlying legitimacy (able to provide an answer to the question of "who are these people?"), a reformed second chamber will not fulfil its potential. Unless it has to be taken seriously, it will not be taken seriously. This is the problem with the mixture of inheritance and patronage in the present arrangements. If the central task of a second chamber in Britain is to provide a check on the power of a strong executive, matching strong government with strong accountability, this can only be done effectively if its legitimacy is clearly established.

  13.  How this is achieved is not as straightforward as it might seem. It is necessary to balance different (and sometimes competing) considerations. There is a strong case for direct election, as this is the accepted basis of legitimacy in a democracy and would create a chamber that could not be ignored. The case for this approach is well made in the IPPR paper Reforming the Lords (1993). If elections were held on a regional basis (with party lists) this would also strengthen the post-devolution role of the second chamber in representing the different parts of the United Kingdom. Yet there are also drawbacks with a wholly elected second chamber. Election is not the only route to legitimacy in a democracy. Judges are not elected; nor are jurors. If a party list system of election produced a second chamber made in the image of party, more closely resembling the House of Commons, this would erode the element of independence, which should instead be strengthened if accountability is to be enhanced. It is not clear how a party nominee on a closed list system is different in substance from a direct appointee, even if the cloak of legitimacy is somewhat stronger.

  14.  These considerations are different from the usual ones about an elected second chamber being a rival to the primary chamber. This would only be the case if its powers were extended, or if could claim a superior electoral basis to the Commons (for example, by being more proportional, or elected more recently). These are not necessary or intrinsic difficulties; though it is clearly important to create a robust chamber that is not also a rival one. Considerations of this kind have led some to propose an indirectly elected chamber (as with Bryce in 1918), as a third way between the Scylla of pure nomination and the Charybdis of pure election. This also has attractions, if an electoral college of a suitable kind could be identified (it is doubtful if Bryce's proposal for regional groupings of MP's would be acceptable) and if suitable and representative people could be found who would not be found through the usual channels of party and election. The same applies to the idea of "functional" representation, based upon constituencies of interests and occupations.

  15.  Yet such schemes suffer from considerable difficulties. Some are practical, making it difficult to see how they would actually work. Others are more fundamental, and turn on the question of legitimacy again. An indirectly elected body would simply not have the clout that an effective second chamber needs. This is even more true of a nominated body, whatever devices were put in place to avoid crude patronage and to secure a spread of representation. This is no doubt why the Conservative Party's Home Report (1978) concluded that "moral authority can only come from the direct election of its members"; and why Tony Blair, in his John Smith Memorial lecture in 1996, said "We have always favoured an elected second chamber".

  16.  Faced with this range of considerations, the sensible course is to have the best of both worlds. This means a mixed chamber. Legitimacy (and clout) demand that a majority of members are directly elected. This will happen through the party system, on a regional list basis, and give the chamber its underlying political direction and organisation. Yet this needs to be balanced by a strong non-partisan element, comprised of people with the kind of experience and skills that such a chamber of accountability requires (at a time when the Commons is increasingly dominated by political professionals) and who would be excluded if party and election were the only gatekeepers to public office and public service. This should be the task of an Independent Appointments Commission, cultivating applications from a wide range of sources. I do not pronounce upon the exact balance, except to insist that the elected element should predominate. Beyond this, I believe that the denser the mixture the better. This would further emphasise its difference from the Commons and strengthen its identity. There is no reason why some elements of the non-directly elected part of the chamber should not come from sources other than nomination. For example, there could be an indirectly elected element (perhaps on a regional basis) if a workable model could be devised, an even a small element of statistical representation (lot). There is more than one way in which people can be represented, and more than one route through which suitable candidates for public office can be found. Within a predominantly elected framework, I would urge the Commission to be as imaginative as possible in mixing the mix.

  17.  Difference from the Commons, and the avoidance of conflict while maintaining independence, can also be secured by further devices. These include fixed (non-renewal) membership of the second chamber for nine years, with a rolling (three-yearly) cycle of election. It might even be extended to 12 years (as Bryce proposed) if it was thought desirable to combine elections with the four yearly elections to the European Parliament. Such a rolling membership would ensure continuity, safeguard independence, prevent party control and avoid rivalry with the Commons.

  18.  Other matters are secondary to this general approach, but should not be dodged if reform is to be durable and comprehensive. I mention just a few of them. If accountability is to be the watchword of the new chamber, those factors, which impede its effective operation in the Commons, should be attended to. Party is one, but patronage is another. Considerations of office holding are central to the life of the Commons. There is a case for removing such considerations altogether from the new second chamber, by removing office-holding. Ministers from the Commons (whose numbers have grown faster than their workload over the years) could attend upon the second chamber. I understand the arguments of collegiality against such a proposal, but it is something the Commission might nevertheless wish to consider.

  19.  Whatever else is done, the link between membership of the second chamber and the honours system must be broken. It is the source of much confusion and ineffectiveness. If existing nomenclature was to be retained in the interest of historical continuity, it would be a characteristically British solution to have a House of Lords without Lords (with its members plain "ML"). There is an obvious need to attend to the position of the bishops and the law lords. It is not impossible to have an inclusive chamber while maintaining the privileged position of the bishops: they should join an enlarged category of religious and spiritual representation. The judicial function of the House of Lords should be organised separately: legal expertise in the new chamber can be ensured by other means. Finally, the present position of the Lord Chancellor is clearly anomalous: even in a system which likes anomalies, reform of the second chamber is the moment to reform this role too.

  20.  I believe that the approach to the reform of the House of Lords sketched here would command wide support and would prove durable. The emphasis on accountability defines a clear mission for a new second chamber. It would fill a critical gap in our constitutional arrangements, by linking strong government with strong accountability, and make for better governance. It would build upon, and extend, the current role of the Lords. The combination of election and appointment (with the possibility of other additions) ensures the legitimacy required to make a second chamber robust enough to do its job with the expertise and experience required for that job to be performed effectively. If this is not to be another moment in the long history of abortive Lords reform, it has to be a moment for realistic radicalism.

May 1999

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