Draft House of Lords Reform Bill - Draft House of Lords Reform Bill Joint Committee Contents



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 Bill—is wishful thinking. At paragraph 30 the Government speak of their "aspirations for a reformed second chamber—that 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 Member—elected and appointed—within 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 professions—the law, politics, academia, medicine, business, the arts, the armed forces, the police and so forth—as 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 legitimacy—as 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


 
previous page contents next page


© Parliamentary copyright 2012
Prepared 23 April 2012