Lords reform should redistribute power, not promote "elective dictatorship"

A reformed upper House could provide a check on the power that the executive currently hold in Britain. Yet the proposed reforms would give the House of Lords democratic legitimacy, without extending their powers to hold the executive to account
Stuart Weir
21 July 2011

This is the fourth piece in a wide-ranging OurKingdom discussion on the role of the upper House, its relationship to the Commons, and the case for reform. We began with a transcript of a speech by Laura Sandys to the Commons, arguing that Lords reform would strengthen Parliament as a whole. Patrick Dunleavy suggested improvements to the draft bill on Lords reform, while Max Atkinson argued for a second chamber selected by sortition.

Reform of the House of Lords is the most significant democratic reform proposal now on the immediate political agenda – a reform which is most unlikely to come about, even though the government is “committed” to introducing legislation next year, with the intention of holding the first elections to a reformed House of Lords, or Senate, in 2015.

Reform is a major Take Back Parliament measure. The current proposal itself could be significant because under our current arrangements, the House of Commons does not and cannot perform the main duty of a legislature – that is, to provide a check on our over-powerful executive and to submit its legislative proposals to thorough scrutiny. The government’s proposal for a second chamber that is 80 per cent elected (or even wholly elected) could establish a body that has the democratic legitimacy to check the executive and to subject its law-making to independent scrutiny. Could being the operative word.

You will find an excellent summary of the government’s draft reform bill published below this article. It is written by Alexandra Fitzpatrick, of the Constitution Society, for a debate, The End of the Peer Show?, to mark the publication of a set of responses to the draft bill under the same title. The very lively debate at the LSE earlier this week was jointly organised with Centre Forum and with the backing of the LSE’s Public Policy Group.

Mark Harper, the Tory minister responsible for the bill, spoke from the platform and is obviously committed to the bill as well as being very knowledgeable about the issues involved. However, while the three main parties all promised House of Lords reform at the general election, there are doubts about the commitment of Harper’s party at levels and Labour’s willingness to assist, and no doubt at all about the near universal hostility of the existing members of the upper House who will prove a formidable obstacle to reform. Nor is reform high on the agenda of the public and there is not much hope that very many people can be convinced of its significance – not least perhaps because they were recently presented with the specious and hyped-up campaign for another ‘democratic reform’, i.e., the Alternative Vote.

Panellist Patrick Dunleavy from the LSE made no bones about the failings of the current House. “It has a huge paralysing bias,” he said, in a rollicking speech that inspired a roar of laughter. “It is full of old men. Every single member shares the same delusion – that all of them are jolly important people. The combination of their age and gender and self-importance makes for a deeply depressing chamber.” Dunleavy, Harper and others challenged the myth that the House brought together a host of experts to debate and settle issues of the day; someone (I think it was Tim Bale?) pointed out that what expertise they brought to bear was usually out of date (did anyone really think that military strategists from 20 years ago were the best people to pronounce on, say, the war in Afghanistan?).

Dunleavy welcomed the draft bill, but suggested four main changes to its provisions. First, that it should be wholly elected. Secondly, that the absurdly obese chamber should be reduced further than the government’s 300 members to 180-220. Thirdly, its time-span should be over two general elections, not three, and members should not sit unchallenged for the whole period (i.e., for six to 19 years) but should be subject to re-election (once) over the shorter ten-year period. Fourthly, Open List PR elections are more democratic than STV elections. (A comprehensive breakdown of Dunleavy’s proposed alterations of the draft bill can be read here.) Harper warned that the House (which now has 789 members) could become more gargantuan still if left unreformed, as future Prime Ministers exercised their privilege to add to its number over succeeding periods of election.

The most cogent objection to the current proposal came (in my view) from Bob Maclennan MP in the booklet of responses. Maclennan views the point of House of Lords reform from the same perspective as I do – i.e., that its thrust should be “to redistribute power and to strengthen the checks and balances of our Parliamentary democracy”. So he takes issue with the government’s paradoxical position and the “extraordinary utterance” 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 not differently.

We should all beware of the argument from ‘democratic legitimacy’, which may go down well in circles committed to constitutional reform, but it hasn’t the substance of itself to inspire others; and it comes under splendid fire from Sir John Baker QC, Downing Professor of the Laws of England at Cambridge. He complains that the white paper makes no reasoned case for election:

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] 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 means available, of the accrual of arbitrary, arrogant and absolute power.

You do not have to share Baker’s basic assumption in agreeing with him on the basic objective of House of Lords reform – and placing this objective at the centre of any reform campaign.

House of Lords Reform: 
The coalition government’s proposals

On 17 May 2011, the government published its draft bill on House of Lords reform, which includes the following key proposals: 

  • 300 members, each eligible for a non-renewable term of three parliaments
  • 80 per cent of members elected using the single transferable vote (STV), electing a third of members each time with elections normally taking place at the same time as General Elections
  • 20 per cent of members appointed independently to sit as cross-benchers
  • multi-member electoral districts based on national and county boundaries
  • a continuation of the presence of Bishops of the Church of England, reducing their number from 26 to 12
  • members expected to work full-time in the House and receive a salary, allowances and a pension
  • a transition to the reformed House staggered over the course of three electoral cycles, during which time some of the current members of the House of Lords would work alongside new elected and appointed members
  • the powers of the reformed House of Lords and its relationship with the House of Commons to remain the same.

Published alongside the draft bill, the government published a white paper setting out variations on these proposals which the government would also consider including in final legislation.  Also considered, for example, is the case for a 100 per cent elected chamber, different processes of transition to the reformed House and alternative systems of proportional representation, including the open list.

The draft bill and white paper are being considered by a joint committee of both Houses, made up of 13 peers and 13 MPs.  Following this process of pre-legislative scrutiny, the government has committed to introducing legislation in 2012, with the intention of holding the first elections to the reformed House of Lords in 2015.

by Alexandra Fitzpatrick, The Constitution Society, and editor of ‘The End of the Peer Show?’

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