Lord Maclennan of Rogart
In a recent five-year period 40 per cent of the amendments
to legislation passed by the House of Lords against the initial
wishes of the government were ultimately accepted by the government.
Such outcomes have rarely been subjected to criticism and, no
doubt, justify the accolades of the present Prime Minister and
his Deputy that "The House of Lords works well…and its
existing members have served the country with distinction."
The question, which must, therefore, be answered about the Coalition
Government's proposed changes in the composition of the House
of Lords, is: "How will the proposed new second chamber work
better than the present one?"
1. The central thrust of constitutional reform over
the past decade or so has been to redistribute power and to strengthen
the checks and balances of our Parliamentary democracy. The continuance
of this process is the real opportunity to be pursued in pushing
forward further Parliamentary reform, including the reform of
the composition of the second chamber. As the proposals stand,
however, they would fall far short of securing these purposes.
2. The paradox at the heart of the Coalition Government's
proposals is the assertion that "the powers of the second
chamber and, in particular, the way in which they are exercised
should not be extended." What, then, is the point of the
proposed changes? The compliment is paid to the House of Lords
that it has "served the country with distinction". Its
"lack" to which the Government draws attention is "sufficient
democratic authority"; but it is proposed that the Lords,
having been given sufficient democratic authority, must do no
more and do it no differently.
3. The over-riding purpose of reforming the House
of Lords should be to enhance its capability, and that of Parliament
as a whole, to serve the public needs. An interactive dialogue
between two chambers of Parliament allows issues considered in
one to be raised in the other; mistakes and oversights can be
recognised before legislation is enacted.
Parliamentary workload
4. There is another compelling argument for giving
legitimacy by direct election to the second chamber and that is
to enable the workload of Parliament to be spread across the two
chambers. The House of Commons is heavily over burdened. The advent
of IT has added greatly to the accessibility of MPs whose duties
are, properly, seen as being to represent every interest touched
by Government and the public authorities. The increase in the
constituency workload is matched by an increase in MPs' direct
engagement in oversight of the executive through membership of
the growing number of departmental and other standing committees
of the House. The increase in the volume of legislation brought
to Parliament also bears down heavily on its Members and the consequent
increasing practice of timetabling legislation in the Commons
does result in matters being less considered there and, not infrequently,
passed to the Lords without full scrutiny of all clauses of bills.
The time is surely ripe to acknowledge that spreading responsibility,
even primary responsibility, across two elected chambers would
help to ensure better governance by enabling both Houses of Parliament
to focus their attention and, in combination, to scrutinise more
effectively the wide spectrum of public decision making. There
might, for example, be sense in retaining the primacy of the House
of Commons over money bills but also in giving primacy to the
second chamber to scrutinise legislative proposals from the European
Union. Either chamber could oversee prerogative powers of appointment
and treaty ratification.
5. Regrettably, these opportunities are not opened
up by the Coalition Government's proposed reform of the House
of Lords. Indeed, they are explicitly blocked. The Coalition "does
not intend to amend the Parliament Acts or to alter the balance
of power between the Houses of Parliament."
Thus, even the delaying power of a second elected
chamber would not be increased. It must be doubted that an elected
second chamber would agree to play second fiddle for long. It
can be reasonably anticipated that, just as there has been continuing
tension between devolved governments and central governments over
the distribution of power between them, there would be conflict
almost immediately about the limited scope of the second chamber's
powers initiated by those legitimately elected to serve in it.
For example, the conventions that have normally constrained the
House of Lords from rejecting secondary legislation, which has
been approved by the House of Commons, would be seen for what
they are—conventions capable of being overturned. The proposed
bill does not resolve questions of the relationship between the
two chambers. It could entrench conflict and perhaps strengthen
the arguments for abolishing the House of Lords altogether. One
only has to look to Scotland, where the SNP has become—in
Lord Hailsham's phrase—an 'elective dictatorship' (it has
an overall majority in the Scottish Parliament) with no effective
check upon its executive power to realise the danger in Westminster
moving towards a unicameral system.
Size and composition
6. The public is unlikely to welcome the election
of more than one thousand representatives to the two chambers
of the Westminster Parliament. That would result from the addition
of 350 elected members of the reformed second chamber, as adumbrated
in earlier proposals, to the existing membership of the House
of Commons. That would far exceed the size of bicameral legislatures
in many larger countries. The Senate of the United States and
the Bundesrat of the Federal German Republic are highly effective
bodies both with substantially smaller full-time membership. The
relatively small size of those chambers would seem not to diminish
their standing.
7. To command attention the improved chamber needs
to be eminent as well as legitimate. A smaller reformed chamber
with real and discrete powers should more readily attract the
calibre of candidate required to improve the quality of governance.
In Germany the upper chamber has approximately 11 per cent of
the membership of the lower chamber. In the United States the
upper chamber has approximately 23 per cent of the number of the
lower chamber. For the United Kingdom with its smaller size perhaps
the proportions might fall nearer the lower end of the range to,
say, 15 per cent, or 111 members. Such a change would, of course,
directly impact upon the capability of the reformed chamber to
replicate the full scope of work of the House of Lords. First,
as in the present House of Commons, new members would mostly be
generally informed rather than particularly experienced, and there
would inevitably be many issues for consideration beyond the direct
knowledge of any of the members. Second, elected members will
be representative of their electors and must take account of their
views. But given constraints on time, the delegation of constituency
work to appointed staff would be unavoidable, expensive and probably
not wholly satisfactory to the public. Arguably, the proposed
duration of an elected term—15 years—also diminishes
the extent to which an elected member of the second chamber will
be truly accountable.
8. The future of the United Kingdom is now in question,
and the reform of the upper house presents an opportunity for
binding its four constituent nations more closely together. A
reformed House of Lords will, of course, be elected, but the example
of the US Senate could provide a model for giving Scotland, England,
Wales and Northern Ireland more equitable representation and thus
addressing the problem that representatives from England will
always dominate in an elected chamber.
9. Those who advocate the election of the second
chamber must face up to the huge changes which it would make to
the performance of its roles. The inescapable loss of expertise
and experience, which would flow from the abolition of a deliberately
appointed chamber, ought to be addressed by those of us who favour
an elected second chamber. The dilemma is how to retain for Parliament
as a whole the advice of the senior, meritorious, knowledgeable
and widely experienced people who have justified the recent work
of the House of Lords in the UK's democratic decision-making.
A Council of State
10. A possible contribution to answering this conundrum
would be to recognise the case for the appointment of a Council
of State comprising a membership drawn from those who are recognised
to have achieved eminence and who have made a contribution across
a wide range of positions in civil society. The role of the Council
of State would be, in particular, to provide for pre-legislative
scrutiny, possibly including hearings, on government legislation.
It might also engage in post-legislative scrutiny to offer advice
on outcomes. Their input into legislation would be provided for
in the timetabling for the consideration of bills, but the role
would be advisory, including proposing, or offering advice on,
amendments, but with no power of decision or to obstruct the will
of either elected chamber.
11. Sitting on a continuing basis, such a Council
of State would have an identity and the gravitas to draw public
and parliamentary attention to issues and possible resolutions
of problems which otherwise might not be considered in the hurly-burly
of political life. To keep the Council refreshed there should
be a rolling membership, which should be properly staffed and
remunerated. The term of appointment, however, should be long
enough to ensure stability and continuity of operation. The late
Lord Bingham, in a recent book, Lives of the Law: Selected
Essays and Speeches: 2000-2010 (Oxford 2011), suggested something
very similar, although he called it a 'Council of the Realm'.
The virtue of evolutionary constitutional change
is often extolled by British commentators. The package of proposed
reforms of the House of Lords gives little real hint of the direction
towards which the UK's Parliament might tend. It might indeed,
due to its ineffectuality, lead to unicameral government. In other
countries such as Sweden and New Zealand this is now the norm.
But such a development in the UK with our propensity to promote
central control, fortified by an electoral system which does not
tend to spread power across parties, could lead to a dangerously
unchecked presidential system.
Lord Robert Maclennan is co-chair of the Liberal
Democrat Parliamentary Policy Committee on Constitutional and
Political Reform.
21 December 2011
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