Reform of the House of Lords: A Sceptical View

VE R NO N B OGDANO R
The purpose of what follows is to show that there are strong objections to a directly elected second chamber, an indirectly elected second chamber, and also to a mixed chamber comprising both an elected and a nominated element. Therefore the best solution to the problem of the second chamber, it is suggested, is, for the time being at least, to retain a house comprising the life peers, together with an element selected from the hereditary peers. It is not pretended that this is in any sense an ideal solution, only that it involves the fewest diculties for the working of our system of government. But what electoral method should be used to secure a `more democratic and more representative' second chamber? The problem is one of nding a valid principle of representation upon which the second chamber might be based, and an alternative principle to that used for electing the House of Commons. The principle of representation for the second chamber, moreover, must be of a lesser validity to that upon which the House of Commons is based, given that the royal commission is required, by its terms of reference, to have regard `to the need to maintain the position of the House of Commons as the pre-eminent chamber of Parliament'. Were the principle of representation for the new second chamber to be more valid than that used for the Commons, then in any clash between the two chambers it will be argued that the second chamber, rather than the Commons, should prevail. That might be the case, for example, were the Commons to continue to be elected by the rst past the post system, while the second chamber were elected by some form of proportional representation: for many would regard proportional representation as the more legitimate method of election and thus the second chamber, and not the Commons, as best representing the will of the people. The second chamber, moreover, being elected presumably at a dierent time from the House of Commons, might come to be regarded as representing a more recent manifestation of the will of the people, and for this reason more legitimate than the Commons. Thus a
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A stronger or a weaker house?

There are, broadly, three methods of constructing a second chamber: through nomination, through election (whether direct or indirect) and through some combination of the two methods, i.e. a mixed chamber. The White Paper Modernising Parliament: Reforming the House of Lords proposes a `more democratic and more representative' second chamber.1 This would seem to require the introduction of an elected element into the House of Lords. Indeed, the removal of the right of the hereditary peers to sit and vote in the Lords has been justied, not only because of the large Conservative majority among the hereditary peers, but also because hereditary peers are, by denition, unrepresentative.
This article is based upon the author's evidence to the Royal Commission on Reform of the House of Lords.

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second chamber elected, for example, in 1994, by proportional representation, would almost certainly have contained a Labour/Liberal Democrat majority. The Commons, it would then be said, represented the will of the people as it had been in 1992, while the second chamber represented that will as expressed two years later, in 1994, and therefore deserved to be listened to with more respect than the Commons. Again, then, in any clash with the Commons it would be suggested that the wishes of the Lords should prevail. It is a fallacy to assume that the Parliament Acts of 1911 and 1949 have been the sole factor in establishing the supremacy of the House of Commons in the constitution. The comparative lack of inuence of the House of Lords depends at least as much upon its lack of legitimacy as upon the statutory restrictions on its powers. For the Lords has only rarely used the powers available to it under the Parliament Acts: the power to delay primary legislation for one session and the power to veto subordinate legislation. Indeed, since 1945 the Lords has voluntarily gone far beyond the Parliament Acts in limiting its powers, through the Salisbury Convention, by which peers agree not to oppose legislation which has been in the government's election manifesto and therefore has some claim to having been approved by the people. The House of Lords does not seek to exercise its theoretical powers, because it is not seen as democratically legitimate. In any dispute between Lords and Commons, the merits of the issue in question can easily come to be obscured by the cry of `peers versus the people'. But a second chamber which is seen as representative and legitimate will, whatever its theoretical powers, be in a stronger position to challenge the Commons by using powers which hitherto have been in desuetude. A `more democratic and more representative' second chamber would thus be far more likely to use its powers than is the current House of Lords. It might even
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seek new powers, as the European Parliament did following the introduction of direct election in 1979. A reformed second chamber is likely to claim, at the very least, that, unless it were more representative, and therefore more legitimate, than the current House of Lords, it would not have been created. Thus the problem of nding a representative principle for a reformed second chamber is in part that of ensuring that it does not threaten the basic principle of Cabinet government: that the government of the day is responsible to the House of Commons. A `more representative and more democratic' second chamber is likely, then, to prove a stronger second chamber than the current House of Lords. Is that what the Labour government wants? If so, it would be paradoxical. For, since the time of Gladstone, the left has sought to weaken, not strengthen, the second chamber. Admittedly the 1911 Parliament Act contains a preamble declaring that `it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of a hereditary basis'. But this provision was put in largely to mollify Sir Edward Grey, the Foreign Secretary, and the Liberals did nothing to implement it. Indeed, neither Asquith during the years 190911, nor Attlee during the period of the postwar Labour governments, showed any interest in rationalising the composition of the House of Lords, fearing that a stronger second chamber would prove a more powerful bulwark against a reforming government of the left than a chamber based on the hereditary principle. Instead, both Asquith and Attlee concentrated on reducing the power of the Lords: on weakening rather than strengthening it. Until Harold Wilson's abortive reform proposals of 19689, it was on the whole Conservatives, such as Lord Salisbury in the 1880s, and their sympathisers, such as Lord Rosebery in the years 190811, who
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sought to rationalise the composition of the Lords through the introduction of life peerages. When, in 1953, in response to Lord Simon's Life Peers Bill, the Conservative government proposed all-party talks, Labour refused to participate, and the party opposed the Life Peerage Act of 1958 precisely because it would strengthen the upper house. The Labour party's 1997 manifesto proposal to abolish the right of hereditary peers to sit and vote in the House of Lords was very much in line with this tradition on the left. Given that the vast majority of hereditary peers are Conservative, such a reform would render the Lords less antagonistic to a Labour government. Any second phase, however creating a `more representative and more democratic' second chamberwould be likely to bring into being not a weaker but a stronger body. It is not clear whether those on the left have fully appreciated that this will be the outcome, or whether it is an outcome which they desire.

A directly elected second chamber?

It is not easy in a unitary state to discover a valid alternative principle of representation to that used in the election of the rst chamber. There is, however, one obvious such alternative, and that is the representation of territory, as opposed to the representation of individual voters as in the Commons. The new second chamber might, it is suggested, represent the nations and regions of the United Kingdom, through either direct or indirect election. Such a method of constructing a new second chamber would, moreover, have the merit of taking into account the devolution settlement by which the United Kingdom is coming to be transformed from a unitary into a multinational state. A second chamber might be constituted, either in whole or in part, through direct election on a regional basis. In their
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recent book Ivor Richard, a former Leader of the House of Lords, and Damien Welfare propose that two-thirds of a new second chamber of 450 members be directly elected by proportional representation on regional lists, as with elections to the European Parliament from 1999. The remaining one-third would be crossbenchers appointed for life by the new Appointments Commission.2 One strong argument for this proposal, in the authors' view, is that it would strengthen English regional feeling, so giving England a greater stake in the devolution settlement than it now feels. It could thus perhaps play its part in holding the United Kingdom together in the face of centrifugal pressures threatening to tear it apart. From this point of view, a directly elected second chamber `could be the missing piece of the constitutional jigsaw, serving as the pinnacle of the structure and a focus of unity'.3 There are, however, fundamental problems with the idea of a directly elected second chamber, whether that directly elected element were to comprise either the whole of the chamber or merely the predominant part. The rst problem would be to ensure that the chamber did in fact represent the nations and regions of the United Kingdom, rather than merely replicating the party battle of the House of Commons. The public often criticise the House of Commons because its members are for the most part professional politicians, with little outside experience or understanding of the problems faced by ordinary people; and because they are too constrained by tight party discipline. These two features might well be replicated in a directly elected second chamber. Indeed, the constraints of party discipline would be even greater if a reformed second chamber were to be elected under a list system of proportional representation, in constituencies much larger than those of the House of Commons, in which personal contact
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between voter and member is likely to be minimal. In Australia, the Senate, which was intended to represent the states, is in fact a party chamber, and the close party balance therein, a result of proportional representation, `makes adherence to the whip more critical in the upper house' than in the lower, so that the grip of party control is actually tighter in the Senate than in the House of Representatives.4 Thus, far from representing the interests of the nations and regions of the United Kingdom, the new second chamber could become even more closely controlled by party than the current House of Commons. The second problem would be how to nd good candidates to stand for the new second chamber, for it is likely that the ablest people would still wish to stand for the Commons. There seems no reason to believe that a new, directly elected second chamber would yield a pool of hitherto untapped talent sucient to generate a house able to perform functions of scrutiny and review eectively. The likelihood is that the second chamber would attract those who have not been successful in securing nomination for a Commons constituency, or those seeking to serve their political apprenticeship in a subordinate forum. That would not make for a very eective second chamber. Nor does there seem to be much public demand for a second chamber composed primarily of professional politicians of the type who already sit in the Commons. Moreover, although the reformed second chamber is proposed as representative of the nations and regions of the United Kingdom, the outcome of elections to it would be likely to depend on how voters viewed the performance of the government of the day. The presumption is that elections for the new second chamber would be held at a dierent time from elections to the Commons, and that the second chamber would have a xed term. Suppose, for example, that the new second chamber had a three-year term,
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with one-third of its members retiring every nine years. Elections to it would constitute a kind of mid-term opinion poll on the performance of the government. Then the new second chamber might be seen, for the reasons suggested above, as more legitimate than the Commons, whatever its theoretical powers. The fact that it had been elected by proportional representation would also, in the eyes of many, give the reformed second chamber superior legitimacy to the Commons. Thus it would be only in theory that the new chamber would represent the nations and regions of Britain. In practice, it would be a party chamber, and simply another means by which voters registered their (dis)satisfaction with the government of the day.

An indirectly elected second chamber?

An indirectly elected chamber might seem to be a better solution, in that it would be less likely to challenge the government; nor could it easily become an independent centre of active political initiative. In my recently published book, Devolution in the United Kingdom, I proposed such an indirectly elected chamber, modelled on the German Bundesrat, as a method of `giving the devolved governments formal access to the legislative powers in a reformed second chamber'.5 In Britain, such a chamber might be composed of delegates from the devolved executives in Scotland, Wales and Northern Ireland, and from local authorities in England. The English representatives would be delegates from the London authority and the regional chambers, themselves elected in large part from local authorities. Were devolution to come about in the English regions, however, it would be natural to replace this form of representation with representation from the executives of the English regional authorities themselves.
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Further reection, however, and also consideration of the criticisms contained in Richard and Welfare's Unnished Business, have convinced me that the Bundesrat model cannot be applied to Britain. Part of the reason for this is that Britain is not becoming, as Germany already is, a federal state. Rather, devolution is creating a form of asymmetric quasifederalism in the United Kingdom. Regional chambers in England, recently established by the government, hardly enjoy the electoral legitimacy of the Ger man Lander. They are non-statutory indirectly elected bodies, containing, in addition to local councillors, non-elected individuals such as business representatives. Directly elected regional authorities will only be introduced when a clear demand for them is expressed in a particular region, and this demand will need to be expressed in a referendum. Thus English representation in an indirectly elected second chamber would be a form of indirect election at two removes, by those originally elected to local authorities and then seconded to the regional chambers. Such supposed `representatives' of England would hardly enjoy the legitimacy of those representing the directly elected devolved bodies in Scotland, Wales and Northern Ireland. Moreover, in England elections for local authorities would become, in eect, invisible elections for the new second chamber. This would make it less likely that local elections would be decided by local issues, and more likely that they would come to depend upon the vicissitudes of national party politics. Instead of being asked to vote for a party pursuing policies in the interests of a locality, electors would be asked to vote for a party which would support or oppose the government in the new second chamber. Local elections would thus come to be bound more tightly into the Westminster system, and local and regional autonomy, far from being strengthened, might well come to be weakened.
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The qualications for local councillors would also alter. Instead of being chosen primarily for their ability to formulate politics for their locality, they would also need to be able to scrutinise the working of central government and to hold it to account in the new second chamber. That is a very dierent requirement, and it is by no means clear that one person could do both tasks eectively; nor that either of these tasks could be undertaken on a part-time basis. Most probably, some councillors would concentrate on the one task and some on the other. This division of labour could well weaken local government rather than strengthening it, by depriving it of a cadre of able councillors. A similar kind of objection can be made to the idea, often oated, that members of the European Parliament should become members of the new reformed second chamber. MEPs spend much of every four-week cycle on the continent. Week 1 of this cycle is occupied with meetings of party groups which take at least two days. Week 2 comprises meetings at Strasbourg which take up to ve days. Weeks 3 and 4 are taken up with committee meetings, and every MEP is on at least one specialised committee. It would be unrealistic to suppose that this left MEPs with much time to participate in any meaningful way in the deliberations of a reformed second chamber. In Scotland, Wales and Northern Ireland, an indirectly elected chamber modelled on the Bundesrat would have the eect of reopening debate on many of the contentious features of the devolution settlement. Scottish members of the second chamber, for example, would be able to scrutinise all government legislation (excluding nancial legislation), not merely legislation dealing with Scottish domestic aairs. This would give them a wider remit than is to be enjoyed by nonScottish MPs, who, following devolution, are no longer in practice in a position to scrutinise Scottish domestic legislation.
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Thus an indirectly elected second chamber would raise anew the West Lothian Question, in a dierent and unpalatable form. Far from being the coping-stone to the devolution settlement, therefore, such a reformed second chamber could well reopen it, rekindling English resentment at its inequity.

A mixed second chamber?

There are especial diculties, it may be suggested, in a mixed second chamber, combining directly or indirectly elected members with a nominated element. For a mixed chamber would, by denition, contain members enjoying dierent degrees of democratic legitimacy. The danger then is that any vote carried by a group with a lesser degree of democratic legitimacy will be seen as less valid than a vote carried by a group with greater democratic legitimacy. In the past, the Labour party has regarded votes carried by the hereditary peers as having less weight than votes carried by the life peers, since it regards the former as less legitimate than the latter. In a new second chamber composed of an elected element and a nominated element, votes carried by the latter would be regarded as carrying less weight than those carried by the former. Who elected you? would be the cry directed at the hapless nominated members whenever they carried a vote against their elected colleagues. The conclusion, therefore, is that in current circumstances there are very serious, if not insuperable, objections to a chamber directly or indirectly elected, and to a mixed chamber containing an elected and a nominated element. Some of these objections might be weakened were there in the future to be directly elected authorities in the English regions, so that devolution would become more symmetrical, and the United Kingdom come to take on the character of a genuinely quasi-federal state. But we are of course very far from that situation at the
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moment, and many of the regions remain little more than ghosts. It must, of course, be recognised that a second chamber composed entirely of nominated members, of the life peers, which will be the situation once all hereditary peers lose their right to sit and vote in the House of Lords, is deeply oensive to many people. The upper house would then become the largest quango in the land. Such a house would hardly be a `more democratic and more representative' one. For life peers, being primarily men and women who have achieved distinction in some sphere of life, are, almost by denition, unrepresentative; and also undemocratic, in that they have not been elected. There is, then, no ideal solution to the problem of reforming the second chamber, once one departs from the notion of a prescriptive House of Lords. Perhaps the solution with the fewest disadvantages, and involving the least upheaval, would be for the reformed second chamber to combine the nominated element with the ninety-two hereditary peers, selected as provided for by the Weatherill amendment. These hereditary peers would leaven the element of patronage in the new second chamber. It cannot be pretended that this is in any sense a wholly satisfactory solution. First, it constitutes no advance towards making the second chamber `more democratic and more representative'. Second, it would not full Labour's manifesto commitment to remove the hereditary element entirely from the House of Lords. Third, there is the problem of how each of the selected ninety-two hereditary peers would be replaced after death. Fourth, there is the fact that such a house would be a mixed chamber, so giving rise to the various problems outlined above. A solution of this kind, moreover, would have to be accompanied by severe restrictions on the power of patronage so as to prevent the swamping of the house by the Prime Minister. It would be wrong
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to adhere to the principle laid out in the White Paper that the reformed chamber should reect votes cast in the most recent general election. For this would mean that a change of government at Westminster would lead immediately to the creation of life peers, perhaps of a very large number of life peers, by the winning party. Governments already in practice control the House of Commons. There is no reason why they should be able to control the second chamber as well by determining its political balance anew after each general election. It would be essential to limit the exercise of patronage to the creation of a small number of new life peers each year; this would also prevent the second chamber becoming unmanageably large. Yet there is at least one compensating advantage in the solution suggested here. It is that a second chamber so constituted cannot undermine the legitimacy of the government of the day. It would not be able, as an elected chamber might do, to threaten legislative deadlock; nor would it have the potential of paralysing the everyday work of government. It could, moreover, continue to play a modest role in the revision of legislation, especially legislation involving a constitutional or human rights element; and it could continue with the important work of scrutinising European legislation and delegated legislation, as well as the ad hoc select committee activity which the current House of Lords does so well. None of this would involve replicating the work of the Commons. Indeed, much

of it is work that the Commons cannot or will not undertake eectively for itself. A good deal of the activity of the current House of Lords helps to ll an important gap in our governmental arrangements, one which would be lost in a House of Lords composed of professional politicians, who would be unlikely to have the specialised abilities, or perhaps the inclination, to examine European or delegated legislation eectively; nor to undertake, for example, the scrutinising work of the Select Committee on Science and Technology. There are real advantages in a chamber which can call upon expertise, an element in government complementary to the representative element. Such advantages would be lost in an elected chamber. The conclusion, then, is that a chamber comprising the life peers together with ninety-two hereditary peers would, faute de mieux, prove the most acceptable second chamber for the time being. C'est seulement le provisoire qui dure.

Notes
1 Modernising Parliament: Reforming the House of Lords, Cm. 4183, London, Stationery Ofce, 1999. 2 Ivor Richard and Damien Welfare, Unnished Business: Reforming the House of Lords, London, Vintage, 1999. 3 Ibid., p. 172. 4 Meg Russell, A Directly Elected Upper House: Lessons from Italy and Australia, London, Constitution Unit, May 1999, p. 7. 5 Vernon Bogdanor, Devolution in the United Kingdom, Oxford, Oxford University Press, 1999, p. 285.

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