Political and Constitutional Reform CommitteeWritten evidence submitted by Lord Howarth of Newport

Mr Clegg and Mr Cameron have accepted—the former with regret; the latter perhaps with relief—that Parliament is not willing to legislate for direct elections to the Second Chamber. Regrettably, however, although it is clear that there is a ready and willing majority in the House of Lords for other substantial and overdue reforms, the Government have said they will not pursue those either. On 6 August 2012, at his press conference answering questions about the abandonment of the House of Lords Reform Bill, the Deputy Prime Minister expressed himself as follows:

“There are a number of different versions of what I would call House of Lords reform light and I just have to say very plainly that in my book there is no such thing as House reform light without democracy, and in fact if you look at them all in detail they are various wheezes by which you dignify an illegitimate House and I’m not particularly interested in that. I think the central problem of the House of Lords is that it does not have a mandate from the British people and that is not addressed by any of these various palliatives which are proposed as alternatives… I just think it is totally out of date, indefensible and will change. It will change one day; it simply cannot carry on; it just hasn’t happened this time.”

If a large majority of peers are opposed to introducing elections to the House of Lords it is not out of obscurantism or self-interest but because they have good reason to think that elections to the Second Chamber would damage rather than improve the functioning of Parliament.

Constitutional reform should be based on consensus, should proceed where there is consensus and should not be forced where there is not consensus.

The agenda for reform of the House of Lords that could command sufficient consensus in Parliament to be deliverable is extensive. Over several years peers and MPs of all parties have developed a carefully considered programme of reforms. Some of these have been set out in the Private Member’s Bill introduced a number of times by Lord Steel of Aikwood and up until now rejected by both Labour and Coalition Governments as being insufficient. The agenda has been further developed by Baroness Hayman, the former Speaker of the House of Lords, in her evidence to the Richard Committee which undertook pre-legislative scrutiny of the Bill the Government has now abandoned. The essential elements of reform are the following.

The principle of hereditary membership of the legislature should come to an end. Hereditary peers have given great service in Parliament over the centuries, but there is no rationale in today’s society for anyone to have a place in the legislature by virtue of who their ancestors were. Since the Labour Government’s reform in 1989 the number of hereditary peers serving in the House of Lords has been restricted to the arbitrary number of 92. When one of them dies, a by-election is held among the remaining 91 to fill the vacancy. This is not, in Bagehot’s parlance, dignified. Abolishing the by-elections would lead, gradually and decently, to the expiry of the hereditary system in our politics.

Nor, as many peers acknowledge, should peers continue to serve for life. While the Macmillan Government’s introduction of life peerages in 1958 led to the revitalization of the House of Lords, opening it up to all sorts of talent and experience, and most importantly to the participation of women peers, fifty years on it is impossible to justify the continuation of appointments for life. Fine contributions are still made by elderly peers of great distinction. But no one is irreplaceable, new blood is needed, vacancies have to be created without forever increasing the numbers in an over-crowded House, and it should be sufficient privilege for anyone to serve for a limited period, whether the fifteen years that the Government proposed in their Bill for elected peers or until a suitable retirement age.

Peers should be able to retire. The House voted last June to allow members to retire permanently, but legislation is needed to establish that the writ of summons does not override voluntary retirement. There needs also to be provision to remove from membership peers who unreasonably fail to attend and participate, and peers who commit a serious criminal offence.

The system of appointment of new peers ought to be established on a principled basis. As things are now, the size and composition of the House of Lords are the product of hidden and capricious patronage, minimally mitigated by the good efforts of the Appointments Commission. The process of appointment should be made more transparent and the power of Prime Ministerial patronage reduced.

Tony Blair took a step in this direction by creating the present Appointments Commission. It does its work—of vetting the propriety of party nominees and sifting proposals for membership that come from outside politics—on no authority other than that of No 10. While the existing Appointments Commission acts with scrupulous care and excellent judgement it is not satisfactory, to itself or anyone else, that it has no statutory basis, it invents its own remit and makes up its own rules as it goes along. There should be a statutory Appointments Commission, its task defined in general terms by Parliament and plain for the public to see.

Parliament should determine the size of the House of Lords and the principles determining its composition.

It should determine what proportion of the House should be crossbench peers not affiliated to party, and it should provide guidance as to what balance of gender, regional, ethnic and other diversity and representativeness should be sought by the Appointments Commission in nominating crossbench peers. One of the advantages of an appointed House is that it is possible to compensate to an extent for the lack of diversity and representativeness produced by first past the post elections to the House of Commons.

As a working chamber of the legislature the House of Lords will inevitably be an arena for the political parties. It is a fantasy to suppose, as some do, that somehow the grubby business of party politics can be kept out of a purged House of Lords and that all the business of the House can be conducted by Platonic guardians on the cross benches. Political issues must be debated, every item of legislation considered—some in depth—and Ministers must be questioned so that the House can do its work of scrutiny and advice. Politicians know how to do this and are willing to shoulder the workload. In the main the former MPs in the House of Lords, mostly being beyond ambition and with waning testosterone, have no desire to replicate the customs and practices of the House of Commons. They have their loyalties, of course, but their main concern is to help their parties and the Government to get the policies right. The House performs better when the Government does not have a political majority and Ministers are required to justify their policies rather than rely on the whip to get their way.

At present the process whereby members of political parties arrive as members of the House of Lords is obscure and random. It is controlled by the Prime Minister who determines how many appointments each party leader can make. This produces an inflationary ratchet: incoming Prime Ministers create masses of new peerages, offering some to other parties but always making sure they strengthen their own party’s relative headcount in the division lobbies. The party leaders reward old friends, donors, superannuated colleagues who have behaved themselves and so forth. The House gets larger and larger. It is indeed indefensible.

Among all the ideas for reform that were canvassed during the period in which Mr Clegg’s Bill was under scrutiny, one that seems to me worthy of serious consideration was a proposal for a simple system of indirect election to the House of Lords. Seats would be allocated to the parties after each General Election in such a way as to produce an overall party balance exactly pro rata to their share of the vote at the previous General Election. It would be for the parties to determine how they drew up their lists, but each party would have to publish an ordered list of its proposed peers in advance of the General Election. Assuming that peers should sit for fifteen years, once the system was fully established, two thirds of each party’s seats would be carried over after each General Election, with one third retiring and creating vacancies. Provided that no party lost more than a third of its share of the vote between general elections (which has not happened for more than fifty years), exact proportionality would be maintained. Even if a party did lose more than a third of its share of the vote at a General Election, a highly proportional result would still be achieved, with exact proportionality likely five years later. No peer would be required to stand down before the expiry of their fifteen year term.

If there was legislation in this Parliament the transition to such a system could be achieved by 2025. Or it could be phased in over a longer period. The speed of transition between the old House and the new is an issue that should be considered with sensitivity, and with due regard to the need for continuity.

The system could be applied in a House reduced in size, for example, as the Government proposed, of 450 members, 80% or 360 of them party peers, 20% or 90 crossbenchers, plus 12 Bishops.

I do not claim there is a consensus for indirect election among peers who favour reform. The principal drawback of it is that it would be likely to provide a future coalition with a political majority in the House, thereby weakening the capacity of the House to offer its advice to the House of Commons and the Government by way of amendments to Bills. But such a reform may be thought an honourable compromise between those who wish to preserve the virtues of an appointed House and fear that direct elections would inevitably threaten the primacy of the Commons and those who insist that there must be democratic legitimacy in the way the Second Chamber is constituted.

The test of proposed reforms should be whether they would be likely to improve the performance and standing of Parliament. There are two major objections to a directly elected Second Chamber. One is that, claiming at least equal legitimacy (probably deriving from proportional representation), it would regularly assert itself against the House of Commons, at present the undisputed primary House. This, it has to be anticipated, would produce gridlock between the two Houses of Parliament, making it hard if not impossible for the Government to carry its legislative programme. It can be argued that under the “elective dictatorship” of a Government with a majority in the House of Commons it is too easy for the Government to get its way, that we’ve had too much legislation, that more and better scrutiny is needed, and that the Parliament Acts would enable the Commons ultimately to prevail over the Lords. Nevertheless, an elected Second Chamber no longer feeling obliged, as the unelected House of Lords does, to defer to the democratic authority of the House of Commons, would swing the balance too far the other way. An elected Lords would routinely make mincemeat of Government Bills and would have no inhibition in throwing out secondary legislation that it thought was ill judged.

It is a strength of our existing parliamentary system, in contrast to the federal system in the USA, that our democratically constituted Government is able to secure legislation in what it considers the public interest, after debate and amendment, in good time. Governments in Britain are able to achieve substantial, albeit controversial and contested, legislation in sensitive areas such as health, welfare reform, planning or climate change. Governments in Britain are able to act relatively quickly, decisively and radically, in contrast to the impotence of a US Administration faced with legislative impasse between the White House and two elected Houses of the Congress. Although politics in Britain is relatively consensual, if we were to have an elected Second Chamber in Britain we would be in an even worse position than the USA, our two Houses routinely facing each other down without the moral and mediating authority of the Presidency to help resolve differences.

At least as important as the debilitation of the Government’s ability to carry its legislation would be the impairment of democratic accountability, which is the second objection. As it is, accountability of the Government, through the House of Commons, to the people of the United Kingdom is clearcut. At a General Election the Government, the parties and MPs submit themselves to the judgement of the people. If, however, there were to be two elected Houses of Parliament, both exercising substantial power and able to obstruct each other, how would electors judge where responsibility lay? Democratic accountability would be muddied and democratic engagement probably weakened. So far from completing the construction of a democratic parliamentary system, direct elections to the Second Chamber would undermine it.

Our present bicameral system, of one elected and one appointed House, combines full democratic accountability with the benefit of a Second Chamber whose role is advisory. I agree with the Government’s proposition in their White Paper that “In a modern democracy it is important that those who make the laws of the land should be elected by those to whom those laws apply”, but that condition is already satisfied. Members of the House of Commons determine the laws created by Parliament. Members of the House of Lords offer advice to MPs by way of debate and amendments—sometimes indeed quite persistently, as for example on civil liberties—but in the end the will of the democratically elected House of Commons prevails. There is nothing undemocratic in having an appointed Second Chamber whose role is no more than advisory.

The good sense of MPs, their intimate knowledge of their constituencies and their appreciation of their constituents’ wishes can be supplemented in an appointed House by further experience and expertise that may not be found among elected politicians. With reformed procedures for appointment, members of an appointed House could be drawn from leading practitioners in all walks of life. They may be better placed to think about our obligations to the future—to future generations and to the planet—than MPs constrained by near-term accountability. Elections are not the only source of legitimacy.

What a waste it would be if the next Government were to spend two to three years battling to achieve an elected Second Chamber and being forced, like the present Coalition, to back off. There are better ways for Government and Parliament to expend political time and energy than in tilting at this particular windmill.

As the Deputy Prime Minister himself said, in his statement to the House of Commons introducing the Government’s draft Bill and White Paper on 17 May 2011, “the key thing is not to make the best the enemy of the good” and “we are determined, in the end, to act.” Clearly we ought to repair and modernize our Second Chamber. It is absurdly negative for the Government, having failed to secure a reform which Parliament has judged misguided, then to set their face against all reform.

At present even a set of procedural reforms, agreed by backbenchers across the parties as being needed to improve the way the House goes about its business, and a matter for decision by the House of Lords itself, has been stalled by the Government. Peers want to do their work better.

There is no excuse for delaying reforms that are widely agreed to be necessary. No doubt Lord Steel’s Bill will be reintroduced in the new session, but major constitutional reform can only satisfactorily be legislated by way of a Government Bill.

Most of the reforms proposed in this submission have appeared in the Reports of previous Commissions, in White Papers, in evidence to other committees, in Private Members’ Bills and, of course, in Mr Clegg’s own Bill. Any legislation on Lords reform will be closely and sometimes fiercely debated, but the Deputy Prime Minister has the opportunity to work with a cross-party coalition of people who believe strongly that far-reaching reforms of the Second Chamber are needed.

The Conservative Party has always approached constitutional reform on a pragmatic, just-in-time basis, and for Labour direct elections to the Lords have not historically been sacred writ. It would be ironic and a great shame if the Liberal Democrats were to be the block against reform. How would that be consistent with Mr Clegg’s commendation to his party of the virtues of plural politics and compromise?

No constitutional settlement is ever in fact a settlement. Our unwritten constitution responds, adapts and develops. The structure and functioning of the Parliament of the United Kingdom is being challenged by public disaffection from politics, by the movement for Scottish independence and by political convergence within the European Union. We will be better able to address these challenges from the strong base of a Parliament successfully reformed to dispose of inherited problems including anachronistic features of the House of Lords.

24 March 2013

Prepared 16th October 2013