PROFESSOR SIR JOHN BAKER—WRITTEN EVIDENCE
1. I am most grateful for the opportunity to
submit these observations on the Government's proposals for reform
of the House of Lords. I am presuming to write at some length
because I believe the future of the House of Lords is the most
important constitutional question of the present age. If it is
resolved badly there may be little left of a British constitution
at all. I begin from an assumption which I hope is uncontroversial
even in the case of an unwritten constitution. The purpose of
any constitution is to serve three fundamental purposes. It
defines the way in which
power is to be lawfully exercised by the Government of the day.
It imposes
limits on that power, so as to prevent absolutism and preserve
basic values. And it provides some means of holding governments
to account for the exercise of their power. Those in office, especially
when supported by a clear majority, very easily fall into the
habit of assuming that they have been given an absolute power
by the electorate, and recently this has come to include the power
to change the constitution as a matter of routine, sometimes without
any joined-up thinking about the whole machinery and sometimes
even with open contempt for the rule of law. It
is easy to see how this
has come about, because the unwritten British constitution provides
no special procedure for constitutional reform. But it threatens
to undermine the constitution itself. If it
were to result in a form
of Parliament which meekly enacted whatever the Government laid
before it, without demur, we would be very close to absolutism.
Our only safeguard then would be the right to a general election.
And we cannot any longer be sure how safe that is. It
would only need the pretext
of a convenient emergency to remove it.
2. In recent decades one of the strongest safeguards
against absolutism and careless government has been the House
of Lords. This may seem a strange twist of history, but history
does not always run in straight lines. As we all know, since the
introduction of life peerages in 1958, and the removal of most
of the hereditary peers in 1999, the House has gained a new confidence
and an enhanced role in checking, controlling and improving legislation.
Moreover, as Lord Simon of Glaisdale said as long ago as 1993,
the House of Lords has become 'effectively the only place in which
the legislature can curb the power of the executive'. These have
been welcome indeed essential—developments, given the inability
of the Commons to carry out those constitutional functions. It
is plain to see why the Lords have managed to achieve
what the 'democratic' Commons cannot. The main reason, obviously,
is that peers are less beholden to party control and therefore
more independent of Government. This can be readily demonstrated
by the House's record over the last ten years. And if we seek
an explanation for this independence, the answer is equally obvious,
namely that peers have tenure and that many of them are not career
politicians. These are advantages generally recognised even by
those who propose an 2 elected House, save perhaps by those
in Government who secretly do not want the second chamber to show
independence.
3. The principal objections to the present House
of Lords are not to its independence of spirit but to its size,
and to the system of selection by the Prime Minister. Although
the majority of peers are well-chosen from persons of distinction
in various walks of life, peerages are also honours, and they
have been used by Prime Ministers to reward second-rate or even
(in a few cases) distinctly unsavoury politicians who, far from
bringing special distinction to the upper House, have rather tended
to bring it into disrepute. There seems to be little disagreement
that these are the principal issues in need of resolution. Assuming
that they are, I submit that election is far from being the best
solution and would, in practice, carry us further towards unchecked
absolutism.
4. The issue of size is dependent on the nature
of the House and should not be addressed in isolation. The optimum
size of the Lords cannot be determined in the abstract merely
by making a direct comparison with the Commons, or with other
legislatures, or by measuring the available bench-space. It depends
upon whether it is thought appropriate, as at present, for the
House to include essentially part-time members, or persons whose
membership is seen as purely honorific and who are not expected
to participate in its work. Those are two separate categories,
because the latter element could be removed without altering the
character of the House, whereas the former could not. Whatever
view is taken of this, it is a secondary question, to be addressed
only when the method of selection has been settled.
5. The more serious problem, arising from unsuitable
appointments, could be resolved without abandoning the breadth
of experience and expertise which is a strong and unique characteristic
of the present House. The simplest solution would be to remove
ministers from the selection process and transfer the power of
selection exclusively to an appointments commission. The Prime
Minister could if necessary continue to recommend names to the
Queen, in accordance with the advice of the commission, but would
not have the power to do so without the sanction of the latter.
He would have to continue in this intermediary role if peerages
were conferred on all persons appointed to the Upper House. The
Government seems to be against this, though there is a strong
case for the appointed members to be made peers, and for the House
to retain its present name. If so desired, sitting peers could
be distinguished by some such title as Lords of Parliament. This
would be perfectly compatible with continuing to confer other
peerages purely as honours, since a distinction between sitting
and non-sitting peers has already come about through the removal
from Parliament of the hereditary element. But, whatever the formal
role of the Prime Minister might be in advising the Queen, the
selection problem would be solved merely by transferring the selection
of names to an independent commission. This was, broadly speaking,
the conclusion reached after very careful thought by the distinguished
members of the Royal Commission of 2000 on the Reform of the House
of Lords (Cm 4534). An appointments commission would, of course,
become a very important body, but there is already a precedent
for that in the new system for selecting judges. It would be expected
to develop a detailed and systematic knowledge of the field of
suitable persons for appointment, liaising with professional and
other relevant bodies.
6. Although almost everyone is agreed on the
merits of the broadly constituted House of Lords that we have
at present—leaving aside the inappropriate political 3 appointments
and (for some) the remaining hereditary element—the leaders
of the three principal political parties have decided that those
advantages must be abandoned because an unelected House lacks
'democratic legitimacy'. They therefore favour election, not as
a solution to any perceived problems but as an end in itself.
A cynical observer might explain this remarkable cross-party accord
by saying that the concept of 'democratic legitimacy' is in reality
a self-serving doctrine calculated to ensure that only full-time
politicians could gain entry to either House. Whether or not that
is an unfair jibe, it can hardly be doubted that the result would
be just that. Few candidates other than career politicians would
be likely to stand for election for a position which would require
electoral campaigning and would also require them, if successful,
to give up their ordinary careers. Campaigning for such elections
would be a process in which the political parties would inevitably
wield exactly the same kind of influence as they do in elections
for the Commons, since only the extremely wealthy could finance
their own campaigns. Most of the selecting of candidates would
therefore be carried out by the political parties who fund the
campaigns, not by the people who vote, and the selecting would
be carried out on party lines without the professional expertise
that an appointments commission would develop. The politicians
elected after such a process, if not already committed party activists,
would most likely feel some obligation to the party which had
propelled them into their paid positions. Even if they were released
from strict subservience to the whip by the grant of limited tenure,
they would be likely to submit to party discipline either out
of gratitude or habit, or in the hope of preferment. In other
words, it is reasonably predictable that an elected (or mostly
elected) House of Lords would acquire in a substantial degree
all the defects of the House of Commons while losing most of its
present advantages.
7. A very strong argument would be needed to
justify moving to such a system. But no such argument has been
made by those who propose it. It seems that the magic word 'democracy',
like the magic phrase 'separation of powers', has but to be uttered
and argument becomes superfluous. I venture to suggest that, however
important those concepts may be, the mere incantation of their
names ought not to stifle serious thought. It is not sensible
to insist on an avowedly undesirable result, which would in all
probability destroy the usefulness of the second chamber, on the
sole ground that it is the inexorable requirement of a vague theory
of' democratic legitimacy' .
8. It has not been explained by anyone, so far
as I can discover, why the House of Lords ought to be a 'democratic'
body, in the sense of being elected. It cannot force legislation
on the Commons but can only delay and improve. It does this most
importantly in protecting the people against infringements of
human rights and the rule of law, a role which the elected Commons
has shown itself unable to perform; but it has also achieved a
significant role in scrutinising and improving legislation, which
is increasingly introduced with little care or thought by ministers
hungry for headlines. Time and again, when the previous Administration
refused to modify proposals which seriously threatened the rule
of law or constitutional proprieties, it was the House of Lords
which came to the rescue. It is rightly accepted, and is enshrined
in the 'Salisbury Convention', that a Government is entitled to
have Parliament pass into statute the principal measures which
were outlined in its party manifesto before a general election.
But that does not mean, and democracy does not require, that they
are entitled to enact those measures in a manner contrary to our
traditions of justice, fairness and clarity. It cannot be supposed,
without evidence, that the electorate voted for that. Even if
there were such evidence, there are some 4
values which ought to be protected against
sudden change even by majority vote, most obviously the protection
of minorities, but also the rule of law itself. Most other civilised
nations in the world have written constitutions which prevent
elected governments from enacting whatever measures they wish
in whatever manner they wish. They would be very shocked to be
told that they were not 'democratic' countries. So long as we
do not have a written constitution, that work has to be done either
by Parliament, which means in reality the House of Lords, or by
the superior courts.
9. The increasing boldness of the courts in the
wake of the Human Rights Act 1998 is a mixed blessing and not
universally admired. But even the strongest advocates of judicial
activism would have to admit that it is only needed where Parliament
fails. It is far more desirable for imperfect
legislation to be put right before it is enacted than challenged
in the courts afterwards. Most ordinary citizens do not have the
means or the time to launch proceedings for judicial review, and
in any case the available armoury is imprecise and can cause all
the collateral damage of a blunderbuss. But we must have one or
the other. I suggest that it is wrong to consider introducing
an elected House of Lords without simultaneously addressing the
question of a written constitution. The two should be inseparably
connected, for a very simple reason: if we have a British constitution
at all, it must be enforced either by checks within the parliamentary
system or by checks from without. Since electing members of the
Lords would remove or seriously weaken the last internal check,
the only practical alternative would be a judicial check. I do
not recall this being mentioned, let alone discussed, by this
Government or its predecessor. I should explain that I am not
advocating a written constitution as things are at present, since
I think it would have disadvantages; but it could be forced upon
us by the Government's proposals.
10. It is true that some politicians profess
not to see the need for 'checks and balances' . It is
sometimes suggested that the very existence of a body which may
delay or even frustrate legislation proposed by a Government is
somehow undemocratic. But, even if this were a valid objection,
the difficulty would not obviously be avoided by introducing an
elected House of Lords. An elected House which was of the same
political complexion as the Commons would be unlikely to upset
the latter. It would probably not act at all.
It would be more or less superfluous in any
area of contention. On the other hand, an elected House which
happened to be of a different political complexion from the Commons
might feel a greater confidence than the present House in opposing
and frustrating the intentions of a Government, and might even
be emboldened to do so on party-political grounds. It would
be supported by a 'democratic legitimacy' equivalent to that possessed
by the Commons, and it may be supposed that electors who have
an equal say in the choice of both Houses of Parliament will not
readily grasp why one house should not have the same authority
to act on their behalf as the other. The Government propose to
solve this problem through legal magic by declaring that the Commons
would continue to have the superiority accorded to it by the Parliament
Acts. But that would flatly contradict the theory behind the proposed
change, and a legal declaration of something contrary to general
perception would be fragile. Indeed, if the 'democratic legitimacy'
theory means anything other than enhancing the career prospects
of party politicians, it is difficult to see any justification
for retaining the Parliament Acts or the Salisbury Convention
were the Lords to become an elected body. Regular conflict would
be the full and logical price to pay for the new philosophy.
11. It has been widely assumed by those in power,
including those now in opposition, that any difference between
the Commons and Lords over this question, if it still exists,
must be resolved by the Commons. This shows a disappointing unawareness
of the first principles of a constitution. Although the Commons
has the undoubted primacy in most ordinary affairs, it cannot
be the business of the Commons to tamper with the only effective
check on their power—that is, on the otherwise absolute
power of the Government which they support—especially when
there is no evidence of any general popular mandate for such interference.
It could never happen in a country with a written constitution.
And it would be plainly wrong to suppose that the principle behind
the Salisbury Convention should apply in a constitutional matter
such as this. If there were a clear body of opinion in the country
supporting a particular constitutional change, that might be another
matter, although even then it would be necessary to ponder very
carefully the consequential effects of introducing such a major
change. There are few parts of the constitution, if any, which
do not impinge on others—the future of the Lords, as I have
suggested, should not be separated from the issue of a judicially-enforced
written constitution. In the case of Lords reform, however, there
is at present no indication whatever of public opinion. The voters
at the last general election were given no choice, because the
major political parties decided not to contest the issue and there
was no campaigning on it.
12. It is a matter of deep concern to me and
others that, in the absence of debate between the political parties,
no reasoned case for election was advanced in the recent White
Paper, certainly nothing to challenge the detailed reasoning in
the report of the Wakeham Commission. The White Paper more or
less assumes that the House should be elected. But this is too
fundamental an issue to be treated so dismissively, and I urge
all politicians to accept that, on this matter if no other, they
have a supreme duty to lay aside the career interests of their
profession in the public interest. The objective of parliamentary
reform should not be an abstract concept of 'democratic legitimacy'
which would in practice promote elective dictatorship. It should
be the prevention, by the best available means, of the accrual
of arbitrary, arrogant, and absolute power. A step in the opposite
direction might suit any Government very well in the short term;
but it would, I fear, be an irreversible disaster in the longer
term.
30 September 2011
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