How and when not to reform the House of Lords

The government’s Bill to reform the House of Lords and the majority report on it by a parliamentary Joint Committee are as full of holes as a cheese grater, and they grate equally painfully.   Both are skewed by an irrational terror that a mostly or wholly elected second chamber would be so intoxicated by its electoral legitimacy that it would challenge the “primacy of the house of commons”.  Both are bemused by the myth that the exceptional wisdom and profundity of the proceedings in the House of Lords are down to the immense expertise in every known subject supposedly possessed by its 800-odd members.  And it seems never to have crossed the minds of the authors of either document that since devolution the UK has acquired a quasi-federal constitution: if Scotland votes to stay in the Union and moves to virtually full internal self-government under ‘devo max’, Britain will have taken a big stride towards a fully federal system. But the second chamber of the federal legislature in a federation is commonly a “states house”, or Senate, with equal numbers of members elected from each of the federal units (states, provinces, nations, lander, etc). This provides a safeguard for the smaller units against domination by the largest, a concept especially relevant to the UK’s situation, in which the huge disparity in size, wealth and power between England and the other three nations cries out for just such a safeguard.

The obsession with preserving the primacy of the House of Commons, and avoiding conflict between the Commons and an elected second chamber, is misconceived.  The Commons’ primacy is already guaranteed by its function as the creator and home of governments – the prime minister and all senior ministers must nowadays be MPs, not peers, and the government derives its legitimacy from having the confidence of the majority in the House of Commons, not the House of Lords.  (It would be wise to provide that after any reform of the second chamber all ministers must be MPs, not members of the second chamber: there could be provision for ministers to appear in the second chamber to answer questions.)

The primacy of the house of commons is further secured  by the strict limits on the powers of the Lords, including provision to ensure that in the event of deadlock the Commons always prevail: the second chamber can delay legislation sent to it from the Commons, but can’t veto it.   These safeguards should remain after the second chamber at last becomes an elected body.

We need to remember that we don’t need to invent the wheel.  The vast majority of western democracies have two wholly elected legislative chambers without suffering the kind of constant conflict or  paralysis that our rulers fear (the coup d’état mounted by the Governor-General of Australia and the then leader of the federal opposition against the prime minister, Gough Whitlam, in November 1975 following a deadlock between the two Houses was a function of a bizarre anachronism in the Australian constitution).   Moreover a degree of constructive conflict between the two chambers can be good for accountability and transparency, especially if both have a plausible claim to democratic legitimacy through being elected.  The fear of an elected second chamber sometimes challenging the house of commons reflects the control freakery and over-centralism that are the bane of our politics.

The alleged benefits of the expertise contributed by members of the House of Lords, cited as justification for retaining an unelected, appointed element in a reformed second chamber, are wildly exaggerated.  A distinguished ex-gynaecologist has no more credentials for contributing to a debate on Trident than an equally distinguished retired admiral has for speaking on abortions (and the bishops have no obvious expertise on anything relevant to law-making).   An elected second chamber could call on expertise ad hoc, even allowing experts to participate in debates, as required: but unelected experts should have no claim on seats in our legislature just because they are experts.  What’s more, the great majority of members of the House of Lords have no particular expertise anyway: many are just superannuated ex-MPs, ‘elevated’ to the Upper House purely because their seats in the commons were needed for someone else, or alternatively as a reward for a lifetime of sheep-like obedience to the party whips in the house of commons  In any case, the wisdom and profundity of House of Lords debates are more often admired than experienced:  as our sharpest constitutional commentator, Walter Bagehot, sagely remarked, “A severe though not unfriendly critic of our institutions said that the cure for admiring the House of Lords was to go and look at it,” an observation as accurate now as when it was written (in 1867!).

As to the timing and purpose of the reform, and as a brave minority of the Joint Committee have pointed out, it’s absurdly premature to design a new second chamber before Scotland has decided at the referendum on independence scheduled for autumn 2014 whether to secede.  Following devolution the UK is now a quasi-federation, or ‘semi-federation’, as acknowledged by the constitutional guru Professor Vernon Bogdanor.  If the Scots choose to stay in the Union, as most sensible people hope, the need for a federal Senate on the Australian and US patterns will become increasingly obvious.  Each of the four UK nations should elect an equal number of Senators — perhaps 20 each, giving us a Senate representing the four nations with 80 elected members, almost exactly a tenth of the present grotesqely swollen House of Lords.  If the US, with a population five times ours, can manage with 100 Senators, surely we can make do with 80.  Equal representation for each of the four UK nations (like equal representation for each of the Australian and US states in their respective federal Senates) would provide a vital safeguard  for the UK’s three smaller nations against continuing domination and interference by England, by far the biggest of the four.

As a footnote on the preferred size of a reformed second chamber, it should be noted that the government’s draft Bill envisages a chamber of 300 members, while the Joint Committee says this is far too few, and goes for 450.  Well, both are better than the present 800 plus, which is manifestly crazy;  but 300 and 450 are both still ridiculous.  80 would be quite enough.  The fewer the Senators, the better the research staff and facilities we can afford to provide them with.

There are other nonsenses in the draft Bill and the Joint Committee report.  Both the government and the majority of the Joint Committee favour 15-year terms (non-renewable, mercifully) for all second chamber members, with no requirement to face the electorate, once elected, ever again – a reliable recipe for sloth, complacency and lack of accountability, far longer than in almost any comparable parliament.  The proposal that 20% of the membership should be appointed, not elected, soldiers relentlessly on, impervious to intellectual demolition and to the impossibility of inoculating it against corrupt political patronage, despite fantastic attempts to devise ever more indirect controls:  ” Appointments would be made by a statutory Appointments Commission, which for certain purposes would be overseen by a Statutory Joint Committee…”  — the latter to be a joint committee of both houses of parliament!  There is still to be a bench of unelected Church of England bishops, in reduced numbers to be sure, as if a mere dozen of them would be too few to raise any question of justification for having any at all, quite apart from the implied insult to Catholics, Jews, Muslims, flat-earthers and the sizeable majority of us who rarely give religion a thought.  Elections to the new second chamber are to be held at the same time as general elections to the house of commons, although how this is to be squared with the proposal that one-third of the second chamber’s members should be elected to 15-year terms every five years is unclear.  Some of the Joint Committee’s conclusions are simply unintelligible: “The Committee considers that a more assertive [second chamber] would not enhance Parliament’s overall role in relation to the activities of the executive” – which I find more obscure each time I read it.  There is almost no evidence that either the government or the Joint Committee have studied the experience of other bicameral legislatures, or sought to learn from it, presumably out of a settled conviction that the British have nothing to learn from Johnny Foreigner.

Nearly half the members of the Joint Committee disagree with a sizeable number of the recommendations of the majority.  All three major parties are deeply divided on nearly all the principal questions arising from the reform project.  Right-wing Europhobic Tories are insisting that if the eventual proposals for House of Lords reform are to be put to the people in a referendum, there must also be a referendum on UK membership of the EU, although the reasoning behind this proposition is obscure.  Leading LibDems, the most ardent reformers, argue that since all three major parties are committed to Lords reform, there is no need for a referendum on the matter – whereas in fact that makes a referendum all the more necessary, since the electorate has no means of registering opposition to any change by voting for a serious party which favours the status quo.

There could scarcely be a less promising prelude to carefully thought-out and coherent, purposeful reform than this chaotic medley of irreconcilable differences and often ludicrous proposals, many of them based on demonstrably unsustainable premisses.   A sane consensus is most unlikely to emerge from the dissonant clamour, and the likeliest destination of the volumes of solemn argument is surely the Too Difficult Tray (known to cliché-addicted hacks as the Long Grass).  It’s hard to resist the conclusion that this is probably the least bad of possible outcomes of the current exercise.   Steadily growing interest in a federal future for the UK will be reinforced if Scotland votes to stay in the Union with devo max, and a federal system absolutely requires a full written constitution, justiciable by a Supreme Court and defining in detail the respective powers and functions of the constituent parts of the federation and their organs.  A separate parliament and government for England, among many other controversial matters, will be essential features of a federal system.  The preparation of such a constitution will have to be preceded by at least one Royal Commission and at least one constitutional convention, followed by exhaustive scrutiny in parliament and a number of referendums, in a process likely to stretch over 20 years or more.  The nature and purpose of the federal parliament’s second chamber are just one piece that will have to fit precisely into the enormous jigsaw.  To attempt to create it now, in isolation from its almost certain future context, is surely the biggest exercise in futility since King Canute’s courtiers tried to persuade him to make the sea recede.

Brian