22nd November 2022
As today is a palindrome day – 22/11/22 – here is another palindrome: 111.
One hundred and eleven.
That is, the number of years since this statute was passed:
And if you read the preamble above, you will see that Act was only intended to be temporary, until there was a second chamber constituted on a “popular” basis.
But one hundred and eleven years later, the House of Lords is still there.
For reform is easy to announce, but hard to accomplish.
And in the House of Lords there are still ninety-one hereditary peers – and even twenty-six bishops from the Church of England (which, remember, is the established church in only one of the four constituent nations of the United Kingdom).
There are also several hundred life peers, each of whom is the beneficiary of some sort of patronage, or closed selection process, and none of whom are elected or in any meaningful way politically accountable.
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Of course, the House of Lords should be reformed or replaced.
Of course.
But how?
And here is a big problem about the House of Lords in our constitutional arrangements.
We need to first understand what a second chamber is for.
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Any reform of, or replacement for, the House of Lords has to be carried by the government of the day with the support of the House of Commons.
And neither the government of the day nor the House of Commons will usually want to strengthen the power of a second chamber.
This means that any reform or replacement is likely to strengthen both the government or the House of Commons, or both.
You may be think that would be a good thing, and perhaps it is, but as it stands the House of Lords provides a check and and a balance to any government that commands the House of Commons.
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The House of Lords cannot veto any legislation.
And the House of Lords will not (by convention) delay any legislation for which there is a mandate at a general election.
But for legislation which has been forced through the House of Commons with little or no scrutiny, the House of Lords currently provides an essential function, despite its lack of democratic legitimacy.
How can this function be maintained – even enhanced – with reform or replacement?
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This problem is why any fundamental reform of, or replacement for, the House of Lords really needs to be complemented by fundamental reform of the House of Commons.
For, as it stands, the House of Lords currently saves the House of Commons – and government ministers – from themselves.
Repeatedly, routinely, almost daily.
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Replacing life peers with elected politicians seeking re-election will removed the independence and expertise that provides the merit of the House of Lords.
Using some other basis of election – by regions or otherwise – may create a chamber with an equal claim to democratic legitimacy, thereby creating logjams, rather than revision.
As with the Crown, one useful feature of the House of Lords is not so much the power it has, but the power it prevents others in the polity from having.
So any serious discussion about reform or replacement should be preceded by anxious consideration of function and purpose: what is the House of Lords or new other chamber to do?
What is it actually for?
And then we should work backwards from that so as to see how it should be comprised.
By putting the question of composition before the question of function and purpose, one is perhaps putting the state coach before the horses.
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It is to be welcomed that the Leader of the Opposition, who has a real chance of being Prime Minister after the next general election, is openly discussing doing something with the House of Lords.
The first term of a left-of-centre government is usually the only time we will ever get a programme of constitutional reform – for example in 1945-50 or 1997-2001.
There are certainly a number of smaller reforms which could be made, including excluding the bishops and remaining hereditary peers, and reducing the scope of patronage by existing and exiting prime ministers.
All easy, quick wins.
But anything more significant requires there to be a balancing exercise, between the new chamber and the House of Commons and the executive.
And that balancing exercise should not be rushed.
Though, of course, we should not have to wait another one hundred and eleven years.
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I feel like a consitutional convention – a genuine one, as exists in Ireland for example, not a facade for rubber stamping a government decision – is the only way out of this.
But then, I’m rather fond of constitutional conventions generally, as the least worst method for ensuring that constitutional changes reflect public interest informed by expert knowledge, rather than electoral motivations.
Perhaps, even, the presence of ordinary members of the public in a convention might make it easier to accept that there is no perfect answer. The current form of the Lords can’t continue as is, but – as with much else – there are no sunlit uplands here.
There is no good justification for a second chamber: it does nothing that could not be achieved with ad hoc committees. the only justification is an inherently undemocratic one, to check the popular mandate.
The easiest reform is simple abolition, and leave the commons and executive to be accountable for their legislation.
I disagree: without the extra filter of a second chamber independent of the Commons, we would have had a lot more ill-thought-through, reckless and just plain stupid law. A lot of what we have is bad enough, and listening to the Lords’ debates one often gets the impression that while there are intellectual pearls in there, most of what comes across is windbaggery of the highest order.
We need a second chamber more detached from party politics, and free from back-scratching patronages, too – the problem with ad hoc committees for reviewing legislation would be the formulation of these committees: if even in the smallest way influenced by the government of the day, they’d be little better than a rubber stamp.
A completely different demographic method could be used with an elected member of different occupations. Possibly with a voting strength based on the number in each occupation.
Who is going to decide which occupation is more deserving of a seat?
I think we need to get away from the “specialist knowedge” idea for the upper house. I saw that as a figleaf to explain why appointees to the Lords were “a good thing”.
I think there are 92 hereditary peers. The 90 selected by the weird election process (would love a blog on that), the Earl Marshal (the Duke of Norfolk) and the Lord Great Chamberlain. Thank you very much for your thoughtful blogs.
How to reform the House of Lords – a proposal.
At its best it works well. At its worst it is a cesspit of privilege and patronage, neither of which are conducive to good government.
The purpose and powers of the Lords should remain the same.
The membership should change.
Each registered voter should be able to vote for any candidate.
Any candidate who achieves 60,000 or more votes would be elected. This gives about 500-600 members elected based on numbers voting in recent elections.
Members hold their seat until – death, resignation, statutory retirement age, criminal conviction after election excluding driving offences or if included voter removal.
Option 1 – On a member standing down for one of the reasons above the people who voted for them would again be able to exercise their votes.
Option 2 – Voters can change their votes at 5 yearly intervals thus allowing for the removal of a member.
Lord Rooker, for whom I am proud to have campaigned as my Member of Parliament, had an interesting exchange with Sir Keir Starmer KC about his plans for the reform of the House of Lords.
This is what he posted on Twitter on 20th November, “I said to Keir Starmer at Labour Peers last Wed there was crucial need to explain dispute resolution between two elected Houses. No answer except others coped. To best of knowledge no second chamber except USA has same powers as primary chamber. We don’t due to non elected!!”
Perhaps, Sir Keir and Lady Victoria are not fans of The West Wing and thus ignorant of gridlock on the Hill?
It is worthwhile noting that Gordon Brown’s commission has not reported so in saying, as he has been for months now, that he is for Lords reform, Sir Keir is anticipating Brown’s conclusions.
Sir Keir discussed Lords reform with Andrew Marr on LBC on 14th July. He also set his face against electoral reform for English local authority and Westminster elections; softening Hard Brexit and deals with other parties.
Sir Keir has said that Lords reform is the limit of what he would seek to achieve in Government as he thinks everything else making up our system of government is not worthy of an overhaul.
If I get it right, Gordon Brown’s commission is a Labour initiated project reporting to the Labour leader. It has certainly not been established along the lines of the Scottish Constitutional Convention set up after the 1992 General Election.
Brown will report his conclusions to Sir Keir and he will decide what subsequently goes into Labour’s Manifesto for the next Westminster General Election.
The commission was primarily established to determine what additional powers a Labour Government at Westminster would grant the Scottish Parliament at Edinburgh.
Below the radar of much of the media, the Labour leadership in London is cracking down on Labour working with other parties in England and Scotland, particularly in local government.
The English Labour leadership is determined not to be seen to be associating with any party committed to breaking up the Union.
In Scotland, that means working with the Tories in local Government.
In Northern Ireland, siding with the Democratic Unionist Party in a future Northern Ireland border poll. There is now an ambiguity about Labour’s relationship with other parties in Northern Ireland, especially the Social Democratic and Labour Party.
And on Hastings Council, it means forcing the Labour group, the largest party on the council, but one without an overall majority, to withdraw from a power sharing arrangement with the Green Party.
In Wales, where Sir Keir’s remit does not run, Welsh Labour is in coalition with Plaid Cymru in the Senedd.
Someone has advised Sir Keir that in a hung Parliament wherein Labour was the largest single party, he might govern even without confidence and supply agreements. A commitment that may be included in Labour’s General Election Manifesto.
Sir Keir would challenge the other parties to defeat him in a vote of confidence thereby triggering a General Election, if Labour lost.
The idea that the Crown might refuse a Dissolution and, first, ask Sir Keir to try to form a coalition government, as he would have discharged his Manifesto commitment to not come to some arrangement with one or more parties in the Commons, seems to have passed his advisers by.
As has the thought that the second largest party might be asked to form a government, if Labour would not or could not.
There is a sense that Team Starmer will not become involved with anything they may not dominate and control.
As an aside, would Sir Keir’s new second chamber of the three nations and nine English regions be elected using first past the post?
Sir Keir told the Times last week, “Some leftwingers proudly wear “Never kissed a Tory” badges, but Starmer says, “I’m afraid I’ve broken that rule,” although he won’t reveal with whom. “I’m not tribal. I’ve got very good friends who are Tories and long may that last.” ”
Does he not grasp that for constitutional change to be achieved and lasting in nature that it requires broad based support and a transparent, inclusive approach to its development?
The Independent Commission on the Constitutional Future of Wales established by the Welsh Government is cross party in membership and is co-chaired by Professor Laura McAllister
https://gov.wales/independent-commission-constitutional-future-wales/professor-laura-mcallister and The Rt. Revd. and Rt. Hon. Dr Rowan Williams https://gov.wales/independent-commission-constitutional-future-wales/rt-revd-and-rt-hon-dr-rowan-williams
Welsh Labour is, of course, a winning team, even succeeding against the odds.
Impressive, the way you’ve made the historically messy situation with The Lords Keir Starmer’s fault, John.
I take another view: at least he is acknowledging that the Status quo is not tenable, and is starting the conversation about how to deal with it…
Sir Keir Starmer KC is not starting a conversation with anyone, but seemingly himself over Lords reform.
The fundamental issue raised by Lord Rooker, an elder statesman of my party, the Labour Party, and a former member of the House of Commons as well as a Minister, is what would arise after Sir Keir Starmer KC’s proposed reform of the House of Lords.
Currently, the unelected House of Lords defers to the House of Commons, because it is unelected.
Lord Rooker wanted to know which of the two elected chambers that Sir Keir Starmer KC’s Lords reform would bring into being, would defer to the other.
Few in the United Kingdom who understand these matters want to see the sort of legislative gridlock not uncommon in Washington DC imported into our Parliamentary system of government.
One had assumed that Sir Keir Starmer KC would share that sentiment.
Maybe if he had established a bipartisan body and not a partisan one, headed by Gordon Brown, Lord Rooker’s concern might not have arisen.
Here is a contrarian view.
Superficially, the UK and US systems resemble each other, with a lower and upper chamber and a head of state. In both cases the most democratically elected element is the lower chamber.
The US constitution is extremely difficult to operate because all three elements are powerful and have some democratic legitimacy, often leading to gridlock.
The strength of the UK system is actually the very silliness of the Lords (e.g. the Liberal Democrat 2016 hereditary peers’ by-election), and of the monarchy, which in practice constrains their power. Both have some power, and in extremis both have the potential to precipitate a constitutional crisis, but both lack the democratic legitimacy which would allow them to threaten the normal operation of the HoC and the government.
Increasing the democratic legitimacy of the upper chamber increases the risk of US style gridlock.
Not if you keep the upper house as a limited revising chamber. In the UK the executive is in the commons. The USA has it as a separate cabinet that must pass laws through both houses
In principle, yes. But in practice it is inevitable that politicians in the upper chamber will want to push the boundaries
A point recently made to Sir Keir Starmer KC by Lord Rooker (see my comments above).
A brief point on the bishops- I always felt that in a house the size of the lords having 26 religious leaders was a fairly reasonable proposition. That they all (as you point out) come from the same denomination, nevermind the same religion, was where I had issues.
There is also the odd point that the hereditary peers are the only lords who can claim to be elected. Although that in no way changes my view they should be removed.
I’ve spent some time wondering how to reform the lords to remove patronage etc but maintain independence and avoid the log jam of two competing elected chambers, how to represent all our people and minimise party politics
It seems to me if 1/3 is replaced each year and a max of 2 terms – as (some) charities do – ensures churn and minimises the ‘buying’ of elections by (eg) tax cuts just before a GE, however there is continuity.
To ensure a good cross section of our people perhaps half could be elected and half by ballot ala juries – with good remuneration and support – those selected by ballot able to choose to do a second term
It maybe that a reform to remove political patronage would mean our current second chamber is the least worst option?
I really wish more people understood this the way you say – that we need to work on the problem first confirming the House’s purpose, not backwards from the assumption it ought to be elected.
Too many thoughtlessly kneejerk that election is automatically the obvious answer. The law of unintended consequences should be taught everywhere.
Isn’t the key question: why is the House of Commons so ineffective at scrutinising legislation? Huge Bills are rushed through committee according to a programme motion, where the Government of the day has a majority and Members in committee get on with their constituency work. Ministers parry often decently-intentioned amendments from the Opposition and other parties, and seldom give way. Few Members have any understanding of legislation and most struggle even to understand procedure (for example, on an amendment to an amendment).
Only the Lords has the time, competence and heft to scrutinise legislation in detail and wring concessions out of Ministers. Unless the Commons can be trusted to do that job properly (and that means Members willing to commit to it), radical change to the Lords risks giving the Government of the day even greater unchecked powers.
One reform idea that I have found interesting is to blend, elected appointed and essentially random people (think jury service, but for a longer duration).
The appointed people, have a longer tenure (not lifetime, say 10 years) and provide stability and knowledge of the processes, many will be former civil servants of politicians. Religious leaders would be an option for such appointments, as would existing peers.
The Elected portion, could be some combination of direct election using PR, or in some cases may be a result of other elections. An elected mayor of a large city could for example be added automatically.
The “Jury duty” tranche would be for a shorter time (1-2 years) and be provided with the ability to partake virtually in all discussions and votes. There would be pay for this obviously, and likely support in other ways (Childcare, or covering a replacement for an employer much in the same way that maternity cover is arranged)
Starting point for discussion would be 1/3 from each of these groups
Alexander Horne, a visiting Professor at Durham University; Special Adviser to the Women and Equalities Select Committee and a former Parliamentary lawyer posted these questions on Twitter on Monday 21st November:
If the new Members are elected, why do you then insist on the primacy of the Commons?
Why should it only be a revising Chamber?
What happens with the Parliament Acts and the Salisbury Convention?
If you specifically include the nations of the UK how does that interact with their Parliaments & are the nations then over represented?
Given that the nations already elect Members to the Commons & their own Parliaments, will this have an impact on the quality of candidates?
Is the Government to be restricted to picking elected politicians as Ministers? Will this have an impact on competence?
What do you do with the experts in the Lords who have no interest in electioneering? Are the retired judges, scientist (sic), doctors and others to be ejected?
Will the introduction of electioneering and the reinforcement of party politics have a negative impact on the collegiality and co-operative nature of the Lords?
Will reforming the Lords take up a disproportionate amount of time and effort in the legislative programme?
Will reforming the House of Lords in the manner described over the weekend have a positive impact on the quality of its outputs?
Horne observed “there is also a bit of a conflict between having a second chamber elected by PR and a more federal system. The latter also risks provoking a new discussion about the English question.”
A proposal:-
No more unlimited patronage.
No more new bishops or life piers
Every time 2 members die or retire, 1 new member is added. (This continues until total membership is down to a reasonable number).
The new member comes from whatever party will bring the distribution as close as possible to the vote share of the last general election. (Plus 10% cross benchers).
The appointment lasts until:-
– Death,
– impeachment
– an agreed retirement age
The reason it’s taken 111 years and counting is each reform has only been partial. This time Labour must grasp the nettle, the whole nettle. No more appointed members, no more hereditary members, no bishops.
In terms of its function, defining what the Lords should do is harder than keeping the current powers it has. We should simply replace the current members with elected ones. The only question should be how they are elected.
I prefer a region based assembly, reelected on a rotating basis like the US Senate and local councils here. I don’t want to see any appointees. The idea of it being an assembly of experts is a fudge to justify the life peerage system.
If only, the HoL had saved HM govt from themselves when theresa rushed us all off a cliff in a dull and dim effort to save her party.
It’s difficult to see how a revised HoL would be anything other than just another political layer, probably more or less loosely modelled on the US Senate. There is no incentive for either of the two establishment parties, blue or red, to actually introduce something that will massively change the modus operandi of the establishment.
There is no realistic prospect that the government of the day would commit to a complete overhaul of the Westminster system and there is also no realistic prospect, even if there were, that it would permit genuine democratic involvement of the electorate the definition of a replacement system.
At most, there would be some pseudo-democratic facade of civil participation managed to ensure the apparent popular support for whatever oligarchic outcome was desired, in the time-honoured tradition that has prevailed since Magna Carta.
Any proposals for a replacement chamber would, in all likelihood, simply be for something slanted towards the preservation of the Labour or Conservative variant of neoliberal establishment policy and practice and, in all likelihood, even less empowered to prevent bad legislation or control Commons excesses than is the current institution.
I’ve often ruminated on this subject. Whilst I think there is something fundamentally wrong with the current system, there’s no point in complaining unless you can come up with an alternative. Two points I fundamentally agree with from dag’s post; start with the purpose of the chamber and work back from there; and that you can’t reform one chamber without reforming the other.
So here it goes, my thinking so far. It’s not perfect and I’d welcome views here or be pointed to another forum where these things can be debated in a grown up way.
What follows is what could be, not what is,although written in the present tense. I leave it to you to consider how different it is from today’s reality. A vision, if you wish.
First, the purpose.
The “lower” house, the House of Commons: This is the Executive chamber; it executes the democratic wishes of the people (because they voted the governing party or parties into power based upon their manifesto (s)) through bringing forward legislation and by running government departments.
The “upper” house, the House of Lords: This is the Revisionist chamber; it scrutinises the proposals of the lower house and can amend legislation with the intent to improve it, but not to change its intent. It also holds the Executive to account in it’s running of government departments. It makes sure the Executive is doing what it was elected to do, rather than running off at a tangent.
So how are these houses elected?
The make up of the House of Commons is determined by the electorate’s preference of one manifesto over another. In other words, you vote for the party, rather than the person. There’s various ways this can be achieved but a regional list is my current favourite, although I’m open to other ideas. The principle, though, is that political parties are free to appoint whoever they wish with the necessary skills and experience to bring forward legislation and to run government departments but without regard to the popularity of a particular candidate.
The make up of the Revisionist chamber is the reverse. It is determined by the electorate’s preference as to who will best represent their interests over someone else in ensuring that what is proposed by the House of Commons works for them. In other words, you vote for the person, rather than the party. My preference at the moment is for a constituency based arrangement, be it FPTP or STV.
A few observations on the implications, compared to the current arrangement:
You could keep a bit of “heritage” in the House of Lords; what was the MP for Tunbridge Wells becomes Lord Tunbridge Wells.
Constituency surgeries become the responsibility of the House of Lords, thereby freeing House of Commons MPs to concentrate on policy and it’s execution.
Likewise, the functions of Select Committees would transfer to the House of Lords.
There is a risk that the House of Lords becomes the NIMBY chamber, putting local interests in front of the national interest.
A party led election for the House of Commons would inevitably lead to coalition government and the inclusion of extremist parties. Neither prospect frightens me, but it’s worth pointing out.
My thinking is work in progress. I’d welcome any reaction or be pointed to a forum where I could suggest these ideas to a different audience.
What is it for? A second chamber is there to provide a check and balance, which it cannot truly do without the ability to veto. The restrictions enacted upon the Lords in 1911 forced them to develop the scrutineering role for secondary chambers, because they had little authority to do anything else. I would even argue that the lack of scrutineering capacity elsewhere is the Lords’ fault – over time, they’ve squeezed out any competition to produce a sense of indispensability.
It raises many difficult questions, but the whole point of electoral reform is to strengthen the democratic accountability of the political establishment. The new chamber should be the Commons’ equal.
If it has more democratic legitimacy than the Commons, that is not a bad thing. Indeed, it’s the point. Whether we replace just the Lords or both the Lords and the Commons with a PR-elected chamber, the overall objective is to produce a more consensual system of politics which offers voters more than a tactical choice.
You are correct about the reluctance of the Commons(and governments) to dilute its power to act unilaterally, which is why the price of truly effective Lords reform may be leaving the Commons as-is and kicking the inevitable struggles between it and the replacement chamber down the road.
But just winning a majority of seats under one round of FPTP isn’t good enough anymore. The Commons and government ministers will need to learn to survive without the Lords watching their backs.
No comment so far has expressed opposition to the presence, ex officio, of the “lords spiritual” in our legislature. I do.
Agreed, Lawrence – it’s another completely anachronistic throwback to different, more ignorant times
The party list system is the right one. Or actually, more generally, a process list system.
So every five years, we would vote for the process we liked best. One choice might be Church of England Bishops. One might be hereditary peers. If 1% of the population voted for Bishops, they would get 1% of the seats, and the people administering the Bishops would decide who that was.
One such process could be jury-style selection, with 6 month terms. Some people might vote for that.
Another might be cross-bench experts, one third of them appointed at each election for a 15 year term. The current experts decide who is on the list for the next election.
Of course, each political party will have its own process, so seats will be allocated that way according to voting.
This comes close to the current composition of the House of Lords, but democratises it.
*If* we are to have an elected second chamber, there must be a way to remove the power of the whips/party leadership to control its members.
One elected possibilty is:
* a member can serve only one term (no pressure to be re-elected)
* their term would ordinarily last 9 years (say)
* each three years, a third of the chamber would be elected
* it would be possible to remove a member by some mechanism similar to the recall provision, and the member elected in the by-election would serve until the end of the original term (if replaced in the first three years) or until the end of the subsequent term
I like these proposals. They are eminently capable of being accepted by members of the Commons, or at least given serious consideration. They are easily understood and thus likely to be popular with the public. The radical ideas that are mooted from time to time are, to my mind, just another way of preserving the status quo since they will never be agreed, largely for the reasons you have indicated.
I would add to your suggestions:
a time limit on membership of the Lords.
exclusion of anyone who has made donations to a political party.
exclusion also for a criminal conviction.
a pause between membership of the Commons and appointment to the Lords.
Full, transparent tax status.
Citizenship for an agreed period before membership.
I would also favour getting rid of the pseudo-mediaeval trappings.
I like your additional conditions to membership. Is there a single existing member of the Lords who would comply?
Lady Hale? Lady Kennedy? Others.
I agree that the current revising and restraining of excess should remain the purpose, but reform of the Lords (or whatever it is to be called and how its members are constituted – part locally elected? part expert appointees? fixed terms? transparent and accountable declaration of interests? ability to dismiss upon various grounds?) must be just part of a root and branch reform of our entire system, from the Commons, (replacing FPTP with some form of PR), to the Sovereign (all those little powers they retain we know little about, like DAG I believe I am a non militant republican), the legal system (recourse to the law is essentially only available to the rich) and above all, the abolition of the entire discredited Honours and political patronage system and all the flummery and Ruritanian ceremony – oh and the Disestablishment of the Church of England. Education, transport infrastructure, devolved local government, health and social care also need radical overhauls.
The woman / man in the street needs to believe she / he has some skin in the game – currently we do not if we live in a “safe” constituency of either party. “Safe” seats corrupt Parties and corrupt politics. Then we might be a 21st century democracy.
Of course the Conservative and Labour Parties will fight against any such reform tooth and nail and we all know why.
Being a revising chamber I suggest a totally different way of organising the election not based on politics but on occupation with each representative having a number of votes he was elected by. The occupation could have been based on a UK census but was stopped some time ago. The easiest way would run a one.
A key consideration is where the Lords and Commons should be located.
The Houses of Parliament are an anachronism in their enshrining in architecture an adversarial two-party system with governance characterised by pomp, ritual and “tradition” centred on London.
The HoP buildings are hopelessly degenerating under decades of inadequate piecemeal adaptations and “maintenance” and restoring parliament without a full decant of MPs “could take up to 76 years, while the bill for repairs would stretch to £22bn.”
The buildings could be vacated and renovated as a museum to pre-21st century British parliamentary history providing the opportunity to rethink the form of the debating chambers.
The opportunity would present itself to devolve more functions to the regions – greater revenue raising powers; housing, education, health policy making for instance; and so on. Maybe the HoP could be smaller if power is further devolved.
This paper https://www.ucl.ac.uk/constitution-unit/sites/constitution_unit/files/44_0.pdf sets out some useful guidelines of various roles of other second chambers for comparison.
“The UK is unique in that legislation to change the constitution, or limit fundamental freedoms, is enacted in exactly the same manner as ordinary legislation. Moreover the UK system of a strong executive and parliamentary sovereignty grants the government immense authority to do what it pleases.
“It is therefore all the more appropriate that Parliament keeps an effective check on the executive and scrutinises proposals for constitutional change and human rights infringement. Such constitutional protection is one of the classic roles of a second chamber.”
These are some of the issues that should be debated widely and robustly.
But with the current virtually one-party system we have it’s unlikely to happen.