22nd June 2021
The Sunday Times this weekend did a good piece of journalism on the hereditary peers in the house of lords.
Who could possibly disagree?
Well – certainly not this blog, in principle.
Removal of the hereditary element in the house of lords is one of many ‘micro’ reforms of the constitution of the United Kingdom which should be done – regardless of the interminable ‘debate’ on the merits of a codified constitution.
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Yet.
Here are some things to think about as you nod-along.
There are other (perhaps even worse) problems with the composition of the house of lords: the power of patronage of party leaders – especially the prime minister, the rights of bishops of just one denomination of one church to have twenty-six votes, the number of life peers who do not take any active role but can be summoned to vote, and so on.
And contrary to the impression given by the headline of that piece: ninety of the ninety-two hereditary peers sitting in the house of lords do not have automatic seats – they are elected by the hereditary peers generally.
This means, somewhat paradoxically, they are the only members of the house of lords that are there by means of any sort of electoral process.
They are also free from any allegiance to any party manager or any debt arising from an act of patronage.
In other words: they are part of the legislature outside the control of the government or party leaders.
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But.
Whatever the case that can be made for hereditary peers in the house of lords, they still need to go – and sooner rather than later.
Some constitutional abominations are too awful to be tolerated.
And removing the hereditary peers would also make the house of lords more, shall we say, ‘legitimate’ in its constitutional role.
(And can we please get rid of all the mock-chivalric-pseudo-feudal-medieval titles while we are at it – if you really want to be a lord or lady of something, join a historical enactment society.)
All that said: there should not be the removal of one of the genuinely independent features of the house of lords without regard to the overall balance.
There is little to be gained from clapping and cheering the removal of the hereditary peers if the effect would be to tilt the balance of the house of the lords towards more governmental control.
For, as the constitution of the United Kingdom currently stands, the house of lords is the most effective check and balance to a house of commons dominated by the government.
The house of lords cannot block any legislation – and nor should it, as it does not have any democratic basis – but it can force the house of commons to think again and more carefully about its legislative proposals.
And often the reasoned amendments of the house of lords are accepted by the house of commons – and, indeed, often the house of lords amendments can provide convenient cover to ministers who eventually realise that the initial proposals were unsound.
Given that the most important constitutional function of the house of lords is that of a check and a balance – rather than to be a chamber with a rival democratic basis – then the most important quality is that it should be independent.
Stripping out one feature that provides any independence in the upper chamber should thereby be matched by other measures to maintain that independence.
That is why there should be a more general (ahem) peer review.
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And luckily, there has actually been a useful review.
The Burns report of 2017 puts forward sensible and persuasive proposals for reforming the composition of the house of lords while keeping its independent constitutional role.
The key proposals are to limit the size of the upper chamber and to convert lifetime membership (of the life peers) to a single term of fifteen years.
That report, however, did not make direct proposals for the hereditary peers and bishops.
But, in principle, there is no reason why such a reform could not also mean the removal of the hereditary and spiritual peers – as the overriding objective of a balanced upper chamber outside the domination of any government of the day would be retained.
So – yes, nod-along with the attack on the hereditary elements and, also yes, let’s get rid of them – but when the nodding-along ends, let us also make sure we have not ended up with a less independent upper house in our current constitutional arrangements.
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There is no justification for a second chamber, it distracts from accountability for the first (if the Lords were not there, the Commons would have to get it right first time, as it is, the government can virtue signal to its supporters by passing bad/unworkable versions and then ‘backing down’ to amendments from the Lords). The Lords does nothing ad hoc expert committees couldn’t do.
But would they bother to get it right first time? Can you honestly see a Government with the likes of Johnson and Priti Patel concerning themselves with the rightness of legislation?
Exactly. The very last thing on the minds of chancers that make up our government is “getting things right”, whether the first or second time. Their concern is what they can get away with. In that light ANY kind of accountability — even to unelected and/or hereditary peers — is something to celebrate.
I think there’s a lot to be said for having a second chamber comprising members who are not tied to specific constituencies and do not need to be elected personally. I’m not normally a fan of party list systems, but, given that the current Lords is a party list in all but name, I think we should simply formalise that and elect all of them at the same time as a general election using the D’Hondt method. Votes in individual constituencies, as well as counting towards the vote for the MP who will represent that seat in the Commons, would also be aggregated and used to allocate seats in the Lords. That way, we get the best of both worlds, a truly proportional upper chamber while retaining the direct constituency links of representative democracy in the lower.
There’s obviously a lot that needs to be done to flesh this out into a workable system – there would need to be a mechanism for dealing with votes for independent candidates in constituencies, for example, as well as having a process for what happens when a member of the Lords dies or stands down mid-term. I also think there’s a case to be made for retaining cross-benchers, appointed by an independent commission. But I think the basic principle is worth pursuing as an alternative to the current system.
I agree with that suggestion, Mark, but I think it should be the other way around. The preeminent lower house should be elected by the party list system of PR, while the upper house (why not call it a Senate?) would have a more locality-based method of election, something like how the Commons are now elected, possibly with older and more experienced members who would be spending a lot of their time in constituency work (given that the Senate would be less powerful than the lower house). Either house could supply government ministers, though the lower house would normally predominate in this process
There’s no real demand to reform the Commons along those lines, though. There are regular calls to change the voting system (eg, to AV), but the basic principle of representative democracy has been fundamental to the Commons for as long as it has ever been the Commons. There’s unlikely to be any significant support for a proposal to change that.
As far as names are concerned, I’d leave it as Commons and Lords. It would simply become part of the British constitution’s rich tapestry that the names no longer reflect their actual composition. After all, most of the Lords have been, effectively, Commoners ever since life peerages were introduced.
Mark, “representative democracy” does not entail any particular system of election, and PR is actually more “representative” than FPTP. For this reason, I still think that the more “representative” legislative body should be the Commons elected by PR. You’re right of course though – there is no great popular interest in electoral reform of any kind!
The current FPTP system does has the advantage of a relatively small constituency and a single MP who is supposed to represent you. (Whether or not you voted for them). Most PR systems have larger constituencies and multiple representatives per constituency. Who should I write to as my representative? The Liberal MP(s) for the South West, because I voted for them? One of the Conservative ones that lives closer?
Hamish, if you read my earlier post, what I suggest is an upper house which is less powerful than the one elected by PR. This upper house would indeed be more location-oriented, and could be elected on the basis of one-member consituencies, thus enabling more personal contact between MP and constituents
I think defining our ideal upper/lower house is a waste of time – an exercise in wishful thinking. There is no appetite within the Commons for it to reform itself, and the Electorate rejected even the small change of single transferable vote at referendum.
Far better to concentrate our intellectual energies on the upper house.
Some hereditaries add far more value than certain life peers who never turn up or contribute. Cameron, May and Johnson have handed out peerages like sweeties with no regard for the effectiveness of the house or any sense of legitimacy.
A 15 year term has the advantage of clarity, but it strikes me as too short for some highly effective peers:
* Baroness Hollis of Heigham – served as a peer for 28 years, with eight years as a Minister, and led the charge on tax credits in 2015 after a mere 25 years in the house.
* Her sometime opposite number Lord Higgins joined the upper house in 1997, retiring in 2019.
* Lord Fowler, outgoing Lord Speaker, has been a member for 20 years.
* Lord Laming became a peer in 1998.
…and so on.
It seems to me that reform needs to separate the legislative role of peers from the recognition of distinction. Unless a member is actively contributing, they should be withdrawn from the membership of the house. Defining what ‘active contribution’ is would require work, however – a specialist who contributes occasionally on an area in which they have real expertise adds more value to scrutiny than a party loyalist who turns up daily to vote along whipped lines.
I get the impression that many wider calls for Lords reform centre on the lack of democracy. And then your rightly made point that the present undemocratic chamber should not block legislation becomes reversed: if the chamber were to be democratic, why should it then not have blocking powers? What would be the argument for retaining the Parliament Act in such a circumstance? That’s of course a different sort of upper chamber then.
I am nowhere near a constitutional scholar, but have long mused in pub debates that have taken a philosophical turn whether an elected Lords would be an interesting place for proportional representation. With the Commons being the place the executive is drawn from, it seems to me that FPTP there would maintain the benefit of secure governments with definite and popularly-understood mandates, while a PR-elected Lords with stronger teeth than at present could play a complementary role in requiring that legislation had widespread support more indicative of the national mood.
But is it “undemocratic” if this is how our “democracy” is designed to work?
Although not elected, the Lords is there because “the people” decided (or – I accept – more likely acquiesced to) that this was how the country’s legislature should be organised: because democracy is what we choose it to be; and because it’s certainly not a one-size-fits-all concept – I’m not sure that the House of Lords is undemocratic as such.
It’s a more nuanced thing, I think. I’m not arguing for the House of Lords, but – honestly – in the current climate they feel like far less of a threat to our democracy than does our elected government…
Well said. Democracy as we play it is not all it’s cracked-up to be. Majoritarian rule rather that compromise and consensus demonstrates its inevitable decline.
STV-PR, single constituency for the entire UK, 100 seats. No limit to the number of candidates. Computerised to crunch through the many counts involved.
Now that would be some Upper House. It would make great television too!
Yes, it would be a great improvement. As would using STV for the Commons as well, since FPTP greatly amplifies the corrupting influence of political parties.
But the hereditary peers do have one advantage over appointed members – their ancestors might have been merely pliable friends of those on power at the time, but current members can be genuinely independent.
The other way to populate a second chamber is at random – like jury service. That also provides independence from political interference, though the term needs to be very long as otherwise new members can be easily manipulated by experienced politicians.
STV for a single constituency of a hundred members would mean a ballot paper many thousands of lines long! Nobody is going to want to sift through all that in the polling booth.
If you want the Lords to be elected as a single entity, rather than breaking it down into geographic consitutencies, then the only viable option is a party list system.
That’s why I mentioned computerising the process, it wouldn’t work in a traditional format.
Realistically no voter would ever express preferences all the way down the list of candidates. But STV still works with incomplete preferences. Arguably the open architecture of many more candidates than preferences expressed makes it more inviting to voters to engage with, with de facto list systems operating alongside individual candidacies.
To explain: Interest groups (unions, universities, churches, environmentalists, the National Trust, sports interests, pot hole protesters, whatever) could offer lists in the hopes that candidates who attract a vote will produce transfers within the list to help deliver as many seats as possible for the group. Smaller interest groups (eg beekeepers) could recommend voting for candidates (eg environmentalists) who commit to represent their interests. The resultant dialogue across the country would bring political issues into the mainstream and out of the hands of the traditional parties (who might also have lists in the hopes of maximising seats but who would now find voters choosing to have their pet interests represented by others).
Of course there would also be individual candidacies as per traditional STV, but to succeed these would have to be people already well known to the electorate (Richard Branson? Piers Morgan? Eddie Izzard? David Mitchell? David Beckham?). Just to be clear, I’m not suggesting you would actually vote for all of the above!
Electronic voting is a whole new can of worms, though. Getting that accepted at the same time as reforming the Lords would be double the hassle. And even doing it electronically doesn’t avoid the problem that there will be thousands of candidates, as well as, potentially, using your idea, hundreds of different lists. You also have the problem of how any of these independent (ie, not political party) lists are approved as being “official” and available for choice by the voters on the ballot system.
“Electronic voting is a whole new can of worms, though. Getting that accepted at the same time as reforming the Lords would be double the hassle. ”
I dunno. Right now most people think the Lords is elitist and out of their reach so they might relish influencing it via the equivalent of an online survey!
“And even doing it electronically doesn’t avoid the problem that there will be thousands of candidates, as well as, potentially, using your idea, hundreds of different lists. You also have the problem of how any of these independent (ie, not political party) lists are approved as being “official” and available for choice by the voters on the ballot system.”
Not necessarily thousands. Have candidates pay a large deposit up front that they lose if they don’t get a certain number of first preference votes. That is normal practice for STV and would keep the numbers down. Such a payment should also be enough to make the candidacy “official”.
Every major political party will still put up a full slate of candidates, though, no matter how big the deposit. For them, that’s just a normal part of the process. So you’ll defintely have a hundred Conservatives, a hundred Labour candidates, a hundred Lib Dems, a hundred Greens, a hundred ‘kippers (or whatever the current vehicle for Mr Farage is), plus as many smaller party candidates and independents as want to throw their hats into the ring.
In any case, there’s a strong argument that having a deposit at all, or at least any deposit that’s intended to act as a deterrent to independent candidates, is anti-democratic.
It’s not intended to be a deterrent to independent candidates, it would apply to all candidates so would also limit the number of candidates any political party or interest group might put forward.
On being undemocratic, it is only a deterrent to candidates who have no chance of getting elected. That is hardly undemocratic, is it?
However large the deposit, the major political parties would pay it to have a full slate. There is, realistically, no deposit large enough that would discourage party slates while not discouraging independents even more.
I think you’re missing that it is not in parties’ interests to swamp the field. If you dilute your vote too much, you won’t consolidate your transfers in time to maximise your seats.
With STV, it’s in any party’s interests to field precisely as many candidates as there are seats. Even if they don’t expect to win all of them. Because with STV, they won’t suffer from their own candidates competing against each other as votes can transfer.
I wouldn’t like to give them an excuse to retain FPTP in the Commons in exchange for using some form of PR in the Lords. The only other European country that still retains FPTP is Belarus, and the sooner we get rid of it the better.
The advantages often claimed for FPTP are rather flimsy. In fact it doesn’t necessarily achieve secure governments; the 2019 election was the first to deliver a substantial Tory majority since the Thatcher era. Nor does it necessarily achieve a clear mandate; the Tories’ tactics in the last few elections have been to keep repeating vacuous slogans, say as little as possible about any detailed proposals, avoid any challenging interviews and concentrate on rubbishing the other parties. And in any case they don’t seem particularly committed to anything they do happen to promise – the Northern Irish Protocol is only one example.
The first question to ask about the upper house is: what do you want it to do? Only then can you decide how to recruit the personnel.
Revising Chamber seems to accept low quality of legislation in the Commons as a given
A chamber representative of various interests, such as trades unions and business, used to be a popular proposal in the 1970s. But corporatism requires difficult decisions about who is represented. It will be hard to find a consensus that gives legitimacy.
A chamber that is directly representative of the population would duplicate the Commons and lead to conflicts about who is more truly representative. If you don’t like first past the post then reform that.
I can see two roles:
(1) a-political experts, with a focus on applying the lessons of learning and evaluation. That would imply a non-elective and a-political appointment process. Democratic legitimacy of such a house would be limited.
(2) addressing the UK’s over-centralisation by making the elected heads of local government the members. The German Bundesrat and the EU Council of Ministers would be examples of such an entity.
By replacing life peers with 15 year terms, do we not risk a government in power for 15 years filling its ranks with cronies until it no longer adequately fulfills the role of a check on government power?
Fundamental changes to an institution which evolved over time in response to circumstances absent any over-arching strategy or plan ought to be done in a similar fashion, piecemeal and step-by-step. Otherwise one ends up with the camel designed by a committee setting out to design a horse, Assuming that an upper house is necessary and desirable to improve the quality of legislation and act perhaps as a break on the “tyranny of the majority”, Brexit anyone?, then perhaps the central issue to deal with is that of legitimacy; so the questions are who should be in it and how should they be selected are paramount.
That will take much time and debate to seek and obtain broad acceptance. Only then can one usefully begin to address other important issues such as its mandate and role in the legislative process and what would be rerquired to establish and maintain public trust in the institution itself.
I can think of other desirable reforms which would allow its members to be truly politically independent voices similar to that of which we expect and require of Judges.
No “Honours” appointments. No titles. New name. Fixed number and fixed term (though can stand for reelection?). No “lords spiritual”. Not constituency based. Reserved seats for defined experts and sector specialists – maybe appointed by independent committees. Preferably all “cross-benchers” rather than party hacks. Purpose: significant powers of revising, scrutiny, holding government to account. All but independently appointed experts and specialists voted for by voters. Minimum attendance threshold required otherwise seat forfeited.
This is not going to happen any time soon – or at least until there is a root and branch overhaul of the whole UK / rump England and Wales constitution as a result of the widespread recognition of the country’s reduced place in the international firmament, the unrepresentative nature of FPTP, recognition of the loss of personal freedoms from populist administrations and acknowledgement of endemic cronyism and corruption i.e. the voters finally exhausted by the iniquities and inequalities of the “ancien regime” and their insistence to live in a 21st century representative democracy, rather than a corrupt Ruritania.
The power of the PM to use the Lords as a vehicle for political and financial patronage for personal and party political ends has no place at all in a 21st century representative democracy.
Better to remove the Life Peers to stop cronyism
Instead had a lottery once year to add a 100 members to serve 6 years.
sorry have not had