In recent weeks, the issue of reform of the House of Lords has been on the political agenda. It has
achieved prominence because of Gordon Brown’s report on the UK’s future, including the proposal to abolish the House of Lords and replace it with a chamber representing the nations and regions. Labour leader Keir Starmer has endorsed the proposal at least to the extent of proposing to consult on it.
The proposal to replace the House of Lords with another body, or simply abolish it altogether, is nothing new. Attempts at major reform – a ‘big bang’ approach – have failed, most recently in 1969 with the Parliament (No. 2) Bill and 2012 with the House of Lords Reform Bill. The only substantial Government measure to make it to the statute book was the House of Lords Act 1999 removing most hereditary peers, and that was designed as stage 1 of reform rather than wholescale replacement.
The attempts failed because of practical problems – once you try to translate the proposal into detailed legislative form you run into problems. People may agree on the principle, but not the detail. What form of electoral system should be employed? Should members serve for non-renewable terms? The Government in 2012 changed the electoral system proposed in its White Paper to another one when it published its Bill. The provision that members would serve a non-renewable term aroused opposition, given that members would be no more accountable to electors, not being subject to re-election, than members of the existing House. Some MPs also expressed a fundamental objection, namely that an elected second chamber would challenge the primacy of the first. In both 1969 and 2012, the government’s legislation failed to clear the Commons because of concerted opposition from some determined backbenchers.
This brings us to the basic problems with proposals for reform of the Lords. Much of the debate focuses on composition (in other words, input legitimacy) rather than the purpose of the body (output legitimacy). The starting point should be the purpose of a second chamber. Given that most nations don’t have one, we cannot take their purpose is given.
A second chamber does not exist in a vacuum. My starting point is that it is precisely that, a second chamber. Core to its existence is its relationship to the first. Abbé Sieyès once observed that ‘If a Second Chamber dissents from the First, it is mischievous; if it agrees it is superfluous’. He thus identified two types, the conflicting and the confirming. He omitted a third type, the complementary chamber. A complementary chamber is neither objectional nor superfluous if it adds value by fulfilling tasks that the first is not able to fulfil, be it because it has not the time, resources or the political will.
The case for the House of Lords is that it is a complementary chamber. The tasks it fulfils are core to the health of the polity. Good law is a public good. Law shapes the lives of citizens, stipulating what they can or cannot do. It is in interests of citizens that the law by which they are bound is as clear and justified as it can be. The House of Commons as the elected chamber determines the principle of Bills. It does not necessarily have the time to examine the detail. It certainly does not have the time to consider the mass of secondary legislation generated under the authority of primary legislation. This is where the Lords adds value, accepting that the Commons determines the ends of legislation, it focuses on the means. It engages in detailed scrutiny of Bills and of secondary legislation, for which the Commons does not have the time or political will to undertake. That is especially the case with secondary legislation, for which the Commons has no developed mechanism for scrutiny. The House of Lords makes more of a difference to the detail of legislation than the House of Commons. The difference between the two is recognized by civil servants in Bill teams, who treat the second chamber with caution, knowing that their work may be cut out, in a way that it is not at the other end of the Palace, in justifying the provisions of a Bill.
The Lords is able to add value because of the fact that is not elected – this is actually a plus in that it means members do not have to prioritize profile-raising (what I term ‘look at me’) activities, but rather can get on with detailed scrutiny that does not attract the cameras or headlines – and because of who is appointed. Despite some members attracting criticism because they are deemed cronies of Prime Ministers or are party donors, the House is not ‘full of them’. The House rather is characterized by a membership of experience and expertise, people who can bring an informed eye to bear on the detail of legislation in a way that MPs cannot, for reasons of time and background – they tend to be elected while young, not having had time to reach the top of a profession or gain experience leading a major company, charity or trade union. The two Houses thus have memberships that can look at Bills from different perspectives, the Commons from a political perspective (based on what is acceptable to party and the electors) and the Lords engaging in a more forensic examination of the detailed provisions.
There is a thus a case for a complementary second chamber. As I have argued elsewhere, there is a case for the House of Lords, including a democratic argument – see my post on Constitutional Law Matters here – but that does not mean arguing for retaining an appointed House is an argument against reform; rather it is an argument against removing the existing House and replacing it with a competing or confirming chamber, or not replacing it with anything.
THE CASE FOR INCREMENTAL REFORM
There is a case for reforming the House in order to enable it to fulfil its functions more effectively. Some of that can be achieved through changes to some of the structures and procedures. It can also be achieved through reducing the size of the House – peers accept that the membership is too large – and reforming the appointments process. If public trust is to be achieved, the method by which peers are appointed needs to be changed.
There is thus a case for incremental reform. It is both desirable and achievable. Change already has been achieved through Private Members’ Bills: the House of Lords Reform Act 2014 (enabling peers to retire, removing any peer who commits a serious offence or who fails to attend for a whole session) and the House of Lords (Expulsion and Suspension) Act 2015 (extending the House’s powers to suspend a member and creating the power of expulsion). I was responsible for drafting the first of these and now I am seeking to
achieve change through another Private Member’s Bill, the House of Lords (Peerage Nominations) Bill. You can read it here. I was fortunate in this session’s ballot for PMBs and the Bill was given a Second Reading on 18 November. You can read the debate here. There was overwhelming support for Bill from all parts of the House (the Bill, in the words of one peer, was a ‘no brainer’), the only real opposition coming from the minister and a couple of backbenchers.
The Bill puts the House of Lords Appointments Commission on a statutory basis, introduces enhanced criteria for recommending peerages (conspicuous merit, ability and willingness to contribute to the work of the House) and enabling the Commission to propose additional criteria, having regard to the diversity of the population of the United Kingdom; it also introduces greater transparency in the process, requiring party leaders to inform the Commission of the process and criteria used for making nominations; and requiring the Prime Minister in making nominations to have regard to three criteria: that the membership should be no bigger than that of the House of Commons, that at least 20 per cent of the membership should be cross-bench (that is, independent) peers, and that no one party should have an absolute majority of seats.
The Bill should be scheduled for its committee stage sometime in the New Year. The key task is to persuade the Government that it is in its own interests to accept the Bill. As I said at the close of my speech moving the Second Reading, ‘Good government needs an effective Parliament. A Parliament enjoying the confidence of the public underpins the legitimacy of government. A confident government should have no problem with embracing the provisions of the Bill.’ Good law is in everyone’s interests.