Lord Howarth of Newport
The test against which proposals to reform the House
of Lords should be judged is, surely, whether they would be likely
to improve the performance of Parliament. Over the years I have
asked proponents of elections to the Second Chamber how and why
the change they advocate would improve the performance of Parliament
and I have never yet received an answer. In their Foreword to
the White Paper the Prime Minister and Deputy Prime Minister
say, "We believe that our proposals will strengthen Parliament."
One looks in vain, however, for an explanation as to why this
should be so. It appears to me that the reforms proposed in the
White Paper would damage rather than strengthen Parliament.
Of course the Government put forward their case for
an elected Second Chamber less on the basis that it would strengthen
Parliament than on the basis that that it is unacceptable today
that a Chamber of the legislature should not be democratically
elected. The Prime Minister and Deputy Prime Minister say, "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."
This ignores, however, that the appointed House of Lords takes
upon itself only to advise. The House offers its thoughts in debates
and in the work of its committees, questions and holds Ministers
to account, and proposes amendments to legislation. These are
appropriate functions for an appointed House. Sometimes it may
persist in reiterating its advice when it considers that an issue
is of outstanding importance. But in the end the appointed House
of Lords always defers to the elected House, because it recognises
that in a democracy this is proper and necessary. So it is the
elected House of Commons that decides on legislation as well as
supply. Nor is there any evidence of a frustrated desire amongst
the electorate for an elected Second Chamber. Rather, there is
reason to think that people do not want more elections and they
do not want the establishment of another set of politicians with
salaries, allowances and pensions. The rationale, in terms of
a necessary democratisation of the legislature, for replacing
the House of Lords with an elected Second Chamber is a red herring.
The White Paper contains much detail on mechanics:
the system for election, transitional arrangements and remuneration.
But it barely engages with the major and highly contentious constitutional
issues as to whether an elected second Chamber is desirable in
principle and what the implications would be for relations between
the two Houses.
It is predictable that a wholly or even a mainly
elected Second Chamber would be more assertive vis-à-vis
the House of Commons. Any elected politician worth his/her
salt would be bound to pledge himself when seeking election to
champion his electors, to pursue the best interests of his country
as he perceives them and to hold the Government vigorously to
account. Democratic election would confer this right and duty.
Legitimacy deriving from election would make inevitable a greater
incidence and intensity of challenge by the Second Chamber to
the House of Commons. I am concerned that creating an elected
Second Chamber would lead to endless conflict and impasse between
the two Houses. This would mean, as in the USA, that it would
become much more difficult for the Government to secure its legislative
programme. The spectacle of such conflict would also, I fear,
be repellent to the public, who would become further disaffected
from politics.
The statement in the White Paper on powers"We
propose no change to the constitutional powers and privileges
of the House once it is reformed, nor to the fundamental relationship
with the House of Commons, which would remain the primary House
of Parliament", together with Clause 2 (1) of the draft Billis
wishful thinking. At paragraph 30 the Government speak of their
"aspirations for a reformed second chamberthat it
should perform the same role as at present, but have a clear democratic
mandate." The reality is that they can have one or the other
of these, but not both. Elections will instigate a new dynamic
with profound effects on the relationship between the two Houses.
Of their very nature, you cannot legislate to perpetuate conventions,
which are the product of a particular history and dynamic and
whose acceptance depends upon their reflecting a particular reality,
in this case the relationship between an elected and an unelected
House. If you introduce radical change to that reality you cannot
expect the same conventions to persist. The Cunningham Committee,
whose conclusions were endorsed by both Houses, indeed foresaw
this starkly and warned (in paragraph 61): "If the Lords
acquired an electoral mandate, then in our view their role as
a revising Chamber, and their relationship with the Commons, would
inevitably be called into question, codified or not. Given the
weight of evidence on this point, should any firm proposals come
forward to change the composition of the House of Lords, the conventions
between the Houses would have to be examined again."
The Government recognise, in paragraph 9 of the White
Paper, that the balance between the Houses is "delicate."
Lord McNally, speaking for the Government (Lords Hansard, 22 June
2011, col 1376), went further when he acknowledged:
"What is clear is that the relationship between
the two Houses has always evolved and will continue to evolve
in the future."
We have seen how the European Parliament, the Welsh
Assembly and the Scottish Parliament have all sought, relentlessly
and successfully, to add to their powers.
It has to be anticipated that, in due course, an
elected Second Chamber will challenge the financial privilege
of the House of Commons. The rationale for Commons privilege is
that it is the sole elected House. Indeed a Second Chamber elected
under proportional representation is likely to claim greater legitimacy
than the House of Commons elected under first past the post. The
Parliament Acts will come under challenge. An elected Second Chamber
would threaten the primacy of the House of Commons.
If such developments do occur, the present clear
cut accountability of Government via the House of Commons to the
people will become blurred and confused.
The Government intends, through Clause 2 (1), to
entrench the present relationship between the two Houses. In truth
there is no way, within our flexible, unwritten constitution,
and with the doctrine of the omnicompetence of statute, to entrench
any constitutional arrangements. In our present political culture
politicians who find themselves in Government, armed with a majority
in the House of Commons, though perhaps with no more than a shallow
knowledge of history, feel free to alter the constitution at whim,
and in important recent instances without manifesto justification
or consultation with the people to whom the constitution belongs
or pre-legislative scrutiny. No constitutional "settlement"
will be other than ephemeral. If the measures in the Bill the
Government is putting forward are enacted by Parliament they could
be superseded at any time thereafter by further legislation.
Supposing, indeed, that legislation were passed requiring
that an elected Second Chamber should be limited to the exercise
of no more powers than the existing conventions allow, what value
would there be in the new elected House? A House of elected politicians
whose role was merely to advise and who always deferred to the
other House of elected politicians would have little, if anything,
to contribute to parliamentary deliberation or action. Why would
politicians of any merit other than meekness put themselves forward
for election to such a House?
Aside from the effects of a competition for power
between the two Houses, relations would also be likely to deteriorate
in an atmosphere of mutual resentment as Members of each traversed
each others' constituencies appealing to constituents and being
appealed to by them. It was the prospect of something like this
which lay behind the draining away of enthusiasm for regional
elected assemblies among English MPs as they saw the experience
of their counterparts in Scotland and Wales following devolution
and the creation of the Scottish Parliament and the Welsh Assembly.
In multi-Member constituencies as proposed by the Government for
the Second Chamber there would be more rival representatives trampling
over the constituencies of Members of the House of Commons.
Good relations and productive complementarity between
the two Houses of Parliament are better secured by having an elected
House of Commons on the one hand, representative of geographical
constituencies, with all the vigour and authority which come from
being elected and accountable, and on the other hand an appointed
House with the strengths that come from experience, pre-eminent
professional ability and expertise, and being more representative
of the professional, cultural and ethnic diversity of the country.
The Government recognises the need not to create,
in an elected Second Chamber, a pale version of the House of Commons,
but it is at a loss how to avoid that. So, with no conviction,
it proposes as an option a hybrid House, containing one fifth
appointed Members, ignoring the obvious problems in mixing two
categories of Memberelected and appointedwithin
one Chamber. It is unimpressive that Ministers, meeting for many
months, should have failed to resolve the basic question as to
whether a reformed Second Chamber should be wholly or partially
elected.
The Government proposes to differentiate the electoral
term for the Second Chamber, but by extending it to fifteen years
and insisting that a Member may serve only one term, they ensure
that, after all this upheaval in the name of democracy, there
will be no accountability of Members to their electorates. The
Government claim that these arrangements will underpin the independence
of Members. However, democracy without accountability, power (even
only a little power) without responsibility, is not worth having
and may indeed be dangerous, encouraging corruption and abuse.
For this dubious "democratic" gain it is
proposed to discard the strengths of the present appointed House
of Lords. The existing House of Lords does have a representativeness
different from that of the House of Commons, containing as it
does peers who have achieved distinction in the upper reaches
of various professionsthe law, politics, academia, medicine,
business, the arts, the armed forces, the police and so forthas
well as leaders of the Church of England and other faith communities.
It therefore has a legitimacy that derives from the personal distinction
and authority of many of its Members. The present House of Lords
is diligent and acute in its scrutiny of legislation and the performance
of its advisory role. The quality of its debates is frequently
praised in the media and is appreciated by many in the country.
Democracy is not the only source of legitimacyas we see
also in the authority of the judiciary and the development of
common law.
Would a Second Chamber, whose elected Members owed
their status as candidates to approval by the political parties
and were subject to a more insistent whip than Members of the
present House of Lords, with few or no cross benchers, have resisted
the erosion of trial by jury and the extension of pre-charge detention,
as the House of Lords has done in recent years?
The British constitution was traditionally praised
by foreign observers for the effectiveness of its checks and balances.
Many believe that the checks and balances within our constitution
have weakened with the rise of the "elective dictatorship,"
and that reform should be directed to renewing checks and balances
consistent with democracy. An appointed Second Chamber, appropriately
reformed, is more likely to be a judicious check on the executive
than a Second Chamber elected on a basis of organisation by the
political parties, more preoccupied with the party battle and
more susceptible to party management.
It would be preferable for the Government to concentrate
its reforming energies on improving the existing House of Lords.
The choice is not between the status quo and moving to
a wholly or mainly elected Second Chamber. Everyone wants reform.
Key reforms to the appointed House are set out in Lord Steel of
Aikwood's House of Lords Reform Bill: phasing out of the hereditary
Members of the legislature, improved arrangements for retirement,
and disqualification of peers found guilty of a serious criminal
offence. These reforms are also proposed in the White Paper. The
Government would be wise to proceed purposefully here where there
is genuine consensus. These particular reforms will be necessary
whether the Second Chamber is eventually to be elected or not.
The Government are right also to include in their
proposals the creation of a statutory Appointments Commission.
For so long as there are to be appointed members of the Second
Chamber a Statutory Appointments Commission will be needed. It
is not respectable that the existing Appointments Commission (admirable
though its work has been) should be the creature of Prime Ministerial
patronage. It ought to be legitimately constituted by statute,
with its membership and terms of reference also approved by Parliament.
Its task should be to enhance the representativeness of the Second
Chamber in the sense of the term which I have used above. The
draft Bill does not make clear the role of the SAC beyond its
duty to make a certain number of appointments to a partially elected
House in a manner consistent with the Nolan principles. Nor does
it make clear the role of the proposed Parliamentary Joint Committee
overseeing the SAC. These provisions are too vague.
Given the precedents since the referendum on membership
of the European Economic Community in 1975, such major reform
of Parliament as the Government now proposes, in either of the
variants in the White Paper, could not properly be introduced
without a referendum.
In the remainder of this submission I will comment
on some more incidental aspects of the proposed reforms: the size
of the Second Chamber, its political balance, its gender balance,
and the system of elections to it.
A reformed House of 300 Members would, I think, be
too small. The Government notes that average daily attendance
in the Lords is at present 388 and that with 300 full time Members
the workload should be manageable. But the existing House struggles
to get through all the work entailed by the complexity of modern
government and the ambitions of the legislative programmes of
every Government. Besides, it would be a mistake to require that
appointed Members should be full time. They should bring to the
House their experience of a wider world and over a fifteen year
term of full time membership their capacity to do this would rather
largely diminish.
It is not stated whether any limit is intended to
the number of Ministers the Prime Minister could appoint to the
smaller Second Chamber. Would he be free to appoint a Minister
to represent every Whitehall Department? Will Ministers in the
Second Chamber be entitled to vote? Would not a free patronage
for the PM in this regard enable him to tilt the political balance
of the Second Chamber too far? Might not this make it more likely,
contrary to the suggestion in paragraph 25 concerning staggered
elections, that the Government of the day would have an overall
majority? It is desirable that in a revising Chamber the Government
of the day does not have an overall majority because Ministers
then have to secure the assent of the House by reasoned exposition
of their case, rather than being able to rely upon the party whip
to secure a majority. Between 1999 and 2010 it was the case that
no one party in the Lords had a majority over the other parties.
This was good for the performance of the revising Chamber. Since
the last general election, on the dubious newfangled constitutional
doctrine that the make-up of the House of Lords should reflect
the pattern of voting at the previous general election, the House
has been packed with new peers who take the whips of the governing
Coalition parties. That development has been in striking contrast
to the Government's policy of reducing the size of the elected
House of Commons, its professions of intent to reduce the size
of the Second Chamber and its claim to see it as a virtue of the
electoral system it proposes for the reformed Second Chamber that
it would make it "less likely that one particular party would
gain an absolute majority".
At paragraph 49 the Government says reform of the
House of Lords is "an opportunity to consider how to increase
the participation of women in Parliament." They also say
that political parties have an important role to play in this.
I would observe that the political parties, though paying lip
service for many years to the desirability of a better gender
balance within the House of Commons, have done disappointingly
little to achieve it. The appointed House of Lords already has
a better gender balance than the Commons, and a Statutory Appointments
Commission, tasked to make progress on this, would be well placed
to do so.
In discussion of the proposed STV electoral system
for the Second Chamber the Government says "it is important
that the individuals are elected with a personal mandate from
the electorate, distinct from that of their party." This
seems a forlorn hope. I fear that most voters in very large multi-Member
constituencies, electing individuals to a House that is to exercise
no real powers, will not know the individual candidates nor be
particularly interested to do so. The Government acknowledges
that there will be one Member elected to the Second Chamber for
every 570,000 voters. Under STV the "surplus" votes
of first preference candidates are redistributed to second and
third preference candidates, who are likely to be even less well
known to voters. A low turnout seems likely, and the complexity
of the voting system may reinforce this.
25 October 2011
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