Tag Archives: House of Lords

Meg Russell: The Byles/Steel bill – unless amended – holds grave dangers for the Lords

Meg RussellOn Friday 28 February Dan Byles’ Private Member’s Bill on Lords reform completed its Commons passage. It is now in the Lords, and will be sponsored by David Steel. The bill, which allows retirement from the Lords and expulsion of non-attendees and serious criminals, has been presented as a small, uncontroversial “housekeeping” measure. But as already argued in an earlier blog post, as currently drafted it would in fact introduce a very major change that would alter the Lords fundamentally, and in very undesirable ways.

I will not repeat the basic arguments in my earlier post, which is still available to read (see here). But it urged an amendment at Commons report stage, to ensure that those allowed to depart the Lords (through retirement or expulsion for non-attendance) cannot immediately run for the House of Commons. Such calls were made throughout the bill’s Commons passage, but have been resisted by ministers. This is both puzzling and very worrying. It is puzzling because a ‘cooling off’ period before those departing the Lords could run for the Commons has been included in numerous earlier proposals, from the Wakeham Royal Commission to the Clegg bill (both of which are quoted in my previous post). It is worrying for reasons that I will now spell out, somewhat more forcefully than before. In the rest of this post I summarise the problem, reflect on what the Lords should do, and end on responses to some points that have been made against the change that I propose – all of them unconvincing.

The bill as drafted (clause 4(5)(b)) explicitly allows departing Lords members to run for the Commons. The problem that this creates applies not to existing peers, who presumably gave up any Commons ambitions when accepting their life peerage. It relates instead to new members appointed after the bill has passed. One of the weaknesses of the debates to date (on which more below) is that they have focused too narrowly on the likely short-term effects, in terms of how many current peers may depart – and insufficiently on the long-term effects, in terms of future appointments. But while there may be small, short-term gains through allowing a few peers to retire, the effects of the bill in the longer term would be far larger, and potentially extremely damaging to the Lords.

To illustrate, let us consider three possible candidates for the Lords once the bill has passed:

  • Candidate A has served two terms as an MP, and is appointed to the Lords in 2015 after narrowly losing his seat. He badly wants to regain his constituency, and spends much of the next five years working there, maintaining a constituency office and regularly campaigning door-to-door.
  • Candidate B has fought several Commons seats unsuccessfully in the past, and after missing out again in 2015 is rewarded with a seat in the Lords. But she still yearns after a Commons career, so seeks reselection as soon as possible, and uses the Lords to try and raise her local profile above that of the incumbent local MP.
  • Candidate C is appointed to the Lords in 2015 after many years working as an adviser to his party leader. From there he starts looking for a Commons constituency, and uses Lords speeches primarily to broadcast his suitability as a future MP, and maybe even a future leader.

Candidates A, B and C are not so very different to many who have been appointed to the Lords in the past – indeed, around 60% of current party peers are either former parliamentary candidates or MPs. The key difference is that such people currently have to weigh up carefully whether they still want a Commons career. Those in doubt will turn down any offer of a peerage; those accepting one will set other ambitions aside. I do not see candidates A, B and C as bad people who are doing anything underhand or inappropriate; it is understandable that they should see the Lords as a useful temporary resting place. Nor would their party leaders be acting improperly; indeed, it is easy to see how and why leaders would embrace these new patronage powers. The point is that the bill as it stands fundamentally changes the calculus both for those offered seats in the Lords, and for those doing the appointing. Unless the route from Lords to Commons is explicitly ruled out, people will understandably conclude that it is fine to use it. If the bill passes in its current form, please have no doubt: these changes are certain to occur.

It should hopefully already be clear what effect this would have on the Lords. Many members would become far more preoccupied with constituency business and campaigning than with parliamentary scrutiny work; many would watch far more carefully what they said, in order to appeal to the media, local voters and their party leaders; in seeking to make Lords debates more eye-catching, they would make those debates more politicised. In addition, many members would become short-term occupants of the Lords, staying only a few years before another career could be developed – with a consequent loss of long-term thinking. Should this be considered fanciful, look (as set out at greater length in my previous post) at Ireland, and more recently Canada. In Ireland chamber-hopping is absolutely the norm, and Senators (despite not being directly elected) spend much of their time on local campaigning work. Only last month I acted as an adviser to the Irish Constitutional Convention, where this problem with their parliament was much lamented.

The Byles bill has been presented as a small “tidying up” measure, but these changes would be fundamental, and major. For hundreds of years (with a couple of exceptions, discussed below) members have been able to move from Commons to Lords but not the other way around. The bill would thus change centuries of British tradition, and the consequences need very careful thinking through. It could be argued to the bill effectively ends life peerages in all but name: allowing members to depart the chamber when they wish, at any age and after any period of service. But members can de facto already do this if they really wish, simply by ceasing to turn up. The one thing that they cannot do is run for the Commons. Perhaps some see advantages in changing these historic arrangements; but if so they should make a positive case for change, out in the open, and subject to proper scrutiny. This has absolutely not happened so far.

During the passage of the Byles bill through the Commons, concerns about these matters were raised repeatedly, particularly by Conservative backbencher Jacob Rees-Mogg. In response, at second reading last October Dan Byles said that, “That is the sort of detail that I would be more than happy to discuss… and we could consider whether some small amendment might be made in Committee” (col. 1005). When a ‘cooling off’ period was specifically suggested, so that departing peers had to wait several years before running for the Commons (as was provided in clause 41 of the Clegg bill), Byles said that “I would be interested to look into whether a time bar solution could be achieved” (col. 1055). Hence it was reasonable to assume that the problem would be resolved by government-backed amendments at committee stage – but it was not. At report stage last week the concerns were repeated. Rees-Mogg proposed amendments (particularly amendment 21) to deal with them, arguing that it was “fundamentally undesirable” (col. 558) for the Lords to become a base for aspirant MPs. Dan Byles responded that “we all agree that we would not want the House of Lords to become a training ground for a seat in the House of Commons” (col. 560). Stephen Twigg, speaking for the opposition frontbench, described this as “a serious issue” and “a risk” (col. 561). The minister likewise said that “We do not want to see the House of Lords become a nursery for the Commons where young hopefuls start their careers” and claimed to “fully understand” the concerns expressed (col. 562). Nonetheless no amendment was made. Despite pressures both behind-the-scenes and in the chamber, ministers had resisted changes to resolve the problem.

These developments demonstrate in part the weakness of the private members’ bill process. The bill had its second reading and report stage on ill-attended Fridays, with little media attention. Its sole committee session lasted a mere 38 minutes. There was no pre-legislative scrutiny, no call for evidence, no opportunity for witnesses to appear, and consequently no outside group engagement. The limited time available also led to great resistance to amendments. This was worse for the Byles bill for most PMBs, due to fears that any Commons amendments would make its Lords passage more difficult. Those in the Commons were warned to stick rigidly to the contents of David Steel’s previous bill on the topic, which had passed the Lords in 2012-13. Steel’s bill had also failed to include a ‘cooling off’ period, but it was a similarly fragile creature, with fears at the time that any amendments would derail it. Yet everyone knew that its prime purpose was as a spur to government action; and once government gets involved, Private Members’ Bills inevitably get tidied up. Now, however, the original Steel bill is being treated as a kind of revered text, which cannot be altered. The deafness to argument which is occurring over this bill is a classic recipe for bad policy-making, and even for policy disaster. On such an important matter it is essential for reasoned amendments to be properly debated and considered.

So the Lords is now left in a dreadful position. Typically when a bill leaves the Commons with outstanding problems, the Lords provides the forum for them to be carefully discussed and sorted out. It would be a terrible irony if this norm was broken with respect to a policy that concerns – and indeed threatens – the House of Lords itself. But the government claims that any Lords amendments will kill the bill, due to lack of time for these to be considered in the Commons. I am reliably advised by Commons clerks that this is not actually true – while there are no Private Member’s Bill Fridays left, several tricks could be used to get necessary Lords amendments through the Commons by May if the government wants the bill. The Lords therefore should carefully consider possible amendments to deal with the problem.

Options include:

  • Inserting clause 41 of Nick Clegg’s bill of 2012, which would require a ‘cooling off’ period of 4 years (which could be amended to a longer period). This seems the preferable and least contentious solution.
  • Simply removing subclause 4(5)(b), which provides that those departing the Lords are not disqualified from “being, or being elected as, a member of that House [i.e. the House of Commons]“. This would retain the current absolute bar on future candidacies – which probably goes too far, and could create legal uncertainty.
  • Restricting retirement provisions to current peers, not new entrants. Also problematic, as pressures for retirement would recur and require further legislation. Would also need to apply to provisions for expulsion by non-attendance, otherwise this creates a loophole.
  • Restricting these same provisions to those aged over 65 (as was suggested by Jacob Rees-Mogg’s unsuccessful amendment 3 at Commons report stage for the first of the provisions). This too would be a reasonable long-term solution.

Any of these amendments would resolve a weakness highlighted by MPs and therefore be unlikely to face Commons opposition. If the Lords does amend the bill, and the government does not deploy the tactics available to get it through the Commons, it is ministers not peers who would be culpable for killing the bill. If the bill is not amended in one of these ways, my reluctant advice to peers would be to resist it.

It pains me greatly to have to suggest this latter outcome, even as a possibility. I have long argued for the next small steps on Lords reform, both publicly (e.g. here and here) and behind-the-scenes. Allowing retirement would clearly be a beneficial next step. But a conspiracy of silence to get a flawed version of retirement onto the statute book is clearly a bad idea, and the threats in the bill as it stands are far too great. I began research in this area 16 years ago precisely in order to offer objective, evidence-based advice on Lords reform. That evidence tells me that any gain from the bill as is will be relatively small, while its long-term consequences will be huge and negative. Opening up a direct route from Lords to Commons, which has been closed for centuries, would be a major constitutional and political change. If this bill is truly about “housekeeping”, then using one of the amendments above to maintain something similar to the status quo is essential.

Postscript
Finally (in a post which is already far too long) the really committed may want to hear some of the arguments which have been made against the ‘cooling off’ period, and why I believe that they are wrong:

Argument 1: Peers have been able to leave the Lords and run for the Commons before, under the 1963 and 1999 Acts.

Response: these changes occurred in very different circumstances, and only ever extended to those who had inherited their seats in the Lords (i.e. entered by accident of birth) not those who had themselves been appointed. Hereditary peers of “first creation” were not covered by the 1963 Act, while the 1999 Act was a one-off exodus. Neither implied any change to the type of people appointed.

Argument 2: The ‘cooling off’ period proposed in other packages has been in the context of election to the second chamber, not appointment.

Response: This is simply untrue. The Wakeham Royal Commission (as quoted in my previous post) was particularly strong on this point, despite proposing a largely appointed house.

Argument 3: Once in the pleasant environment of the Lords, few people will feel motivated to depart for the Commons.

Response: I believe that this argument is naive, and too influenced by feelings among some current peers. It is important to remember that those now in the Lords have – by definition – renounced the option of a future Commons career. But the bill allows people who feel very differently to be appointed, and their party leaders will be tempted to do so. It is undeniable that a Commons career remains a desirable to many people active in politics, for example promising a salary, access to senior ministers, and a chance at a cabinet career. Indeed a majority of current party peers have run (successfully or unsuccessfully) for the Commons in the past.

Argument 4: Introducing a cooling off period would deny democratic rights to people to run for the Commons.

Response: In fact, a bill with a cooling off period (of say 4, 5 or 10 years) would significantly increase freedoms beyond what they are now. Life peers have been barred since 1958 from running for the Commons (and likewise, aside from exception 1 above, this has always applied to hereditary peers). Few have complained about this restriction.

Argument 5: There is no time in the Lords to consider amendments, given that the second reading is occurring so late (28 March).

Response: It is very unfortunate that the sponsors of the bill chose a late second reading date, seemingly to procedurally block the opportunity for amendments. The Companion to Standing Orders does set down minimum time periods between stages (e.g. 14 days between second reading and committee stage), but these are only ‘recommended’, and it is not unusual for them to be breached by agreement of the usual channels. If an amendment is put down, a committee stage will be required to debate it, and one can be provided.

Argument 6: It would be better to get this bill through, and if a problem occurs to then legislate to correct it afterwards.

Response: This is a very dangerous suggestion. Once the legislation is on the statute book there is absolutely no guarantee that it can be changed. A “corrective” PMB in the next session could easily die, or indeed be blocked by ministers. Then once the route from Lords to Commons has been opened post-2015, it would probably prove impossible close it again: such legislation would appear critical of particular individuals who have taken this route, or of their party leaders; party leaders will anyway by then have adjusted to the enhanced patronage that the bill provides. Far better not to take the risk – even if this means waiting for a better safeguarded retirement provision in a future bill

Dr Meg Russell is Deputy Director of the Constitution Unit, and Reader in British and Comparative Politics at UCL. She is author of The Contemporary House of Lords: Westminster Bicameralism Revived (Oxford University Press, 2013) and Reforming the House of Lords: Lessons from Overseas (Oxford University Press, 2000), and has acted as adviser to the Royal Commission on Reform of the House of Lords, the House of Lords Appointments Commission, the Leader of the House of Commons, and various parliamentary committees.

REPOSTED WITH THE KIND PERMISSION OF THE CONSTITUTION UNIT BLOG.

Suggested citation: M. Russell, ‘The Byles/Steel bill – unless amended – holds grave dangers for the Lords’  Constitution Unit Blog (5th March 2014)  (available at http://constitution-unit.com)  OR  M. Russell,  ‘The  Byles/Steel bill- unless amended – holds grave dangers for the Lords’ U.K. Const. L. Blog (5th March 2014) (available  at http://ukconstitutionallaw.org/).

 

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Mike Gordon: Time for a Citizens’ Assembly on Lords Reform?

After the collapse of the coalition government’s House of Lords Reform Bill in August, the UK Parliament’s upper chamber remains resolutely unreformed.  The substance of this most recent attempt to complete the process of reform which commenced with the first Parliament Act in 1911 has been examined in detail by a Joint Committee on the Draft Bill, in recent contributions to this blog, and elsewhere.  For some, although certainly not all, the demise of the Bill is not to be lamented, yet the reasons for this vary substantially.  Almost every element of the Bill has been criticised by someone, somewhere, with it being surprisingly difficult to identify a key overriding deficiency of the proposed reform (although clause 2, which provided that nothing in the Bill would affect the primacy of the House of Commons is perhaps the leading contender for most frequently considered flaw).  The failure of this attempt at reform thus had an air of inevitability about it, fulfilling the prophecies of the many commentators who confidently predicted that the Bill would not attract sufficient support to progress through Parliament.

The primary purpose of this post is not, however, to reconsider the merits and/or demerits of the Reform Bill.  The innovations proposed in the Bill have already been thoroughly evaluated, perhaps with the exception of the sheer length of time the government’s reform plan would have taken to implement, with three new intakes of elected members envisaged over the course of three general elections.  Indeed, a staggered transition to the new arrangements, with reform of the Lords potentially incomplete until 2025, would in my view have engendered unnecessary uncertainty in relation to the legitimacy of the interim chamber(s), and unduly delayed the development of a distinct political culture and working practices appropriate to the reconfigured house.  And, of course, a three stage process would have left future governments with two convenient opportunities to ‘pause’ reform prior to its conclusion, potentially transforming interim arrangements into a more enduring state of affairs as is almost traditional in relation to the Lords.

Nevertheless, the purpose of this post is to suggest a way forward.  While it has been argued that this most recent proposal represented a once in a generation chance to reform the House of Lords, this seems likely to have been rhetoric rather than reality.  Lords reform has already proved to be an issue of remarkable resilience, remaining a matter of debate for over a century.  All three major UK political parties now accept that the Lords is in need of reform, and committed to bringing about change in their 2010 manifestos (distinguishing this issue markedly, for example, from the also failed attempts to reform the voting system for elections to the House of Commons).  Further, the possibility of Lords reform being re-employed as a bargaining chip between potential coalition partners cannot be discounted.  This is especially the case in an era when a pluralist approach to politics, filtered through a first-past-the-post voting system designed to cater for two parties, leaves the prospect of future hung parliaments more rather than less likely.

Yet even if a need for reform of some kind is accepted in principle, have politicians, academics and other interested parties reached the point of fatigue with respect to the detail of reform of the House of Lords?  The volume of material produced might suggest not, yet as the failed proposals, committee reports, and academic commentaries mount up, it becomes ever more difficult to see how progress which is satisfactory to a large enough contingent can be achieved.  Appeals to international experience cannot in and of themselves offer a clear way forward, due to the diversity evident when the composition and powers of elected second chambers around the world are compared.  How might we move, then, from the wealth of solutions that we presently have, to decide definitively how to put the upper house in order?

One way in which this objective might be achieved is to focus on the methodology of constitutional reform, rather than the substance of the reform itself.  In circumstances of disagreement about the desirability of competing visions of a reconfigured House of Lords, the major political parties could together commit to resolve this disagreement by democratic means.  The Joint Committee on the Draft Bill proposed that a shift to an elected House of Lords was of such constitutional significance as to require that a referendum be held to approve the change.  Yet the three main political parties could go further, and commit to convene a citizens’ assembly after the next general election to settle the issue of Lords reform decisively.

Citizens’ assemblies have been used in a number of countries in recent years to assess options for specific constitutional reforms, and make recommendations which can then be put to the general public for further consideration, and potentially, approval at a referendum.  Citizens’ assemblies were established in Canada to consider electoral reform at a provincial level, in British Columbia in 2004 and Ontario in 2006, with referendums subsequently held (two in the case of British Columbia) giving the electorate the opportunity to accept or reject the assemblies’ proposals.  The Canadian assemblies were comprised of citizens selected at random from the electoral register, with adequate representation of geographical regions, men and women, and aboriginal people ensured.  Further, at a national level, a Civic Forum on electoral reform was convened in the Netherlands in 2006, which was also composed of randomly selected citizens.  This Civic Forum was, however, tasked with making recommendations to the Dutch government, rather than directly to the people via a referendum, in contrast with the two Canadian assemblies (on these citizens’ assemblies generally see G. Smith, Democratic Innovations: Designing Institutions for Citizen Participation (CUP: 2009), Ch 3).

Similar methodology is also imminently to be used in Ireland, where a constitutional convention, with two-thirds of the members to be citizens selected at random, is to be established to consider a number of specific constitutional issues (including the reduction of the Presidential term of office to five years, reducing the voting age to 17, and reviewing the Dáil electoral system) and report to the Houses of the Oireachtas.  Interestingly, for present purposes, the convention will not consider reform of the Irish Seanad, with a referendum on abolition of the upper house instead to be held in the latter half of 2013.

Finally, and most boldly, in Iceland citizens were chosen to form a Constitutional Council to draft a new revised constitution for the state in the aftermath of the 2008 financial crisis.  Following a larger National Assembly held in 2010, which involved a significant number of randomly selected citizens reflecting on the core values underpinning the Icelandic constitutional settlement, a smaller group of 25 citizens were tasked with producing a new constitution, relying extensively on the internet to canvass the views of members of the wider public.  These citizens were selected originally via an election to a Constitutional Assembly, distinguishing this example from those considered above, but this was subsequently invalidated by the Icelandic Supreme Court on technical grounds, leading to the formal appointment by the government of the same ‘elected’ individuals to a Constitutional Council (on the process of reform in Iceland generally see T. Gylfason, ‘From Collapse to Constitution: The Case of Iceland’ CESIFO Working Paper No. 3770, June 2012, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2034241).  Having been considered by Althingi, the Icelandic Parliament, six questions relating to the draft constitution will now be put to a referendum of the people of Iceland in a matter of days, on 20th October 2012.

This necessarily brief sketch is intended simply to demonstrate that citizens’ assemblies (whether comprising of members selected at random or by election) can be, and increasingly have been, employed to consider both specific and general constitutional conundrums.  Such assemblies can be tasked with assessing a variety of alternative solutions, drawing on appropriate expert support and the views of the general public, and ultimately making recommendations for evaluation and approval in the polity at large.  The virtues of such citizen-led deliberation are that it enables a broader range of perspectives to be considered in a public space designed for informed reflection, while enhancing the authority and legitimacy of the proposals developed, which are untainted by any general disillusionment with professional politicians.  As such, and perhaps crucially in relation to the problem of the House of Lords, a citizens’ assembly could be used to bypass deadlock or intransigence among political elites, and provide fresh impetus for constitutional reform.

Of course, the utility of citizens’ assemblies should not at this stage be overstated; they are not necessarily a panacea for all constitutional ills, and while such mechanisms have obvious classical democratic origins, are only gradually re-emerging as a tool which can be used for the implementation of contemporary constitutional reform.  Further, the use of a citizens’ assembly to develop proposals for reform does not guarantee that successful reform will actually be the result, as the Canadian examples clearly demonstrate.  In light of this, the result of the imminent Icelandic referendum will be of great interest to those who find the idea of citizens’ assemblies attractive in principle.

Nonetheless, in relation to Lords reform in the UK, a citizens’ assembly could potentially offer a very useful democratic solution to a problem politicians have been unable to resolve, as well as a normatively appealing way of increasing popular engagement with constitutional issues in its own right.  And if the key objection to the continued existence of the House of Lords is its undemocratic nature, it would be apt for the future of the upper chamber to be settled by a group of UK citizens, potentially subject to the approval of the entire electorate at a referendum.  The time seems right for the UK to experiment with such an approach to constitutional change, and convene a citizens’ assembly to try to solve the problem of Lords reform once and for all.

Dr Mike Gordon is Lecturer in Public Law at the Liverpool Law School, University of Liverpool.

Suggested citation: M. Gordon, ‘Time for a Citizens’ Assembly on Lords Reform?’   UK Const. L. Blog (17th October 2012) (available at http://ukconstitutionallaw.org)

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Dawn Oliver: Response to Gavin Phillipson on Lords Reform

I feel as bit as if I have been run over by a bulldozer after reading Gavin Phillipson’s blog about House of Lords reform. It assumes that all opponents of the Government bill on Lords Reform are unthinking and /or stupid. Given that some very eminent commentators without political axes to grind as well as some sensible politicians – and there are some! – opposed the proposals, this does not seem to me to be a convincing starting point.

Let us remember just a few basic points.

  1. Most other countries with second chambers are federal: the members of their second chambers represent the members of the federation and have particular responsibilities for protecting and representing the interests of the states in the federation as set out in their Constitutions. This is not the position in the UK.
  2. Comparisons with other countries with elected second chambers can only take us so far: they all have written constitutions, most of which give their courts or court-like bodies (unelected of course, but legitimate) the power to decide, post-legislatively, upon the constitutionality of laws passed by their legislatures, and indeed in many cases to consider and make recommendations by way of ‘preview’ about the quality of drafting, the evidence base for policy proposals etc.
  3. In the absence of such extra-parliamentary checks, the UK relies strongly on intra-parliamentary ones: the Joint Committee on Human Rights, the House of Lords Constitution Committee, the House of Lords Delegated Powers and Regulatory Reform Committee, the Merits Committee and others do these jobs very well. This is because of the kinds of people who are members of these committees.
  4. I do not believe that enough elected members of a reformed second chamber would be as good at these very important functions as current members of the House of Lords engaged in this work are.
  5. The parties are likely to choose as their candidates those with political records e.g. in local and regional/national government, not people with the experience needed for these functions.
  6. And I do not believe that 20% appointed members could be counted on to do the job as well or have the same influence on its doing as current cross benchers.
  7. The combination of elected and appointed members proposed in the draft bill would not produce a system of scrutiny and checks on government as good as or better than the present arrangements as they operate in practice.
  8. Thus going over to a largely elected composition in the second chamber risks throwing the baby out with the bathwater.
  9. So comparisons with other countries, though superficially attractive, can be misleading.
  10. These points do not imply that the present arrangements in our second chamber are satisfactory. The House of Lords is far too large, the continuation of hereditary members is completely inappropriate, appointments are made in exercises of unregulated patronage by the Prime Minister and leaders of the parties, and many members of those appointed do not have useful experience or expertise to bring to the work done in the chamber. Unless and until the House becomes elected these matters ought as a matter of urgency to be rectified.
  11. One solution might be for the UK to adopt a written constitution that would (i) enable a court or courts to take on the function of constitutional scrutiny of bills or Acts, (ii) establish a body akin to the French Conseil d’état that would scrutinise bills for drafting etc and (iii) put in place an elected second chamber.
  12. But adoption of a written constitution for the UK is not going to happen in the foreseeable future. As Sebastian Payne argued in his recent blog, the time is not ripe.
  13. Meanwhile reform of the devil we know that works well is preferable to replacing it with a devil we do not know that might look like an angel but be unable to carry out the functions which need to be done within Parliament as they cannot be done elsewhere under our current arrangements.

Dawn Oliver is Emeritus Professor of Constitutional Law at University College London. 

 Suggested citation: D. Oliver, ‘Response to Gavin Phillipson on Lords Reform’ UK Const. L. Blog (26th September 2012) (available at http://ukconstitutionallaw.org

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Gavin Phillipson: Lords Reform: why opponents of the Government Bill were wrong

So the attempt to bring long-overdue comprehensive reform to our second chamber has failed. The plan for an 80% elected, 20% appointed House, with the hereditary rump removed and Prime Ministerial patronage ended, has been defeated. Leaving aside the purely party political factors that contributed to this outcome, I think we can identify two key reasons why Conservative MPs in particular refused to support the Bill: first, simple “small c conservatism”, manifested on this occasion in the “principle of unripe time” variant so nicely dissected by Sebastian Payne last week on this blog; second, simple parochialism: the deployment of arguments against reform that wholly failed to take account of the experience of other countries – a tendency that was present not only in the views of politicians, but of many of the academic commentators as well, including, alas, on this blog.

The key argument for democratic reform

The main arguments in favour of democratic reform are simple and have been made many times: that the House of Lords exercises real legislative power, which should flow from a democratic mandate, rather than Prime Ministerial patronage and hereditary entitlement. At present, our second chamber has an effective “electorate” of a mere handful of people, something that should be considered indefensible. A linked argument, often overlooked, but almost as important, is more practical: that, while the Lords has a real effect on legislation, much of its excellent policy work, including its proposed revisions to legislation, currently goes to waste because of its perceived lack of legitimacy; its amendments can be, and often are, swatted aside by governments and MPs on this basis. The sweeping assertion of Commons “financial privilege” to allow the rejection without consideration of whole swathes of painstakingly debated Lords’ amendments to the Welfare Reform Bill (considered on this blog recently by Jeff King) was only the most recent and drastic example of this well known tendency. While Donald Shell probably goes too far in saying that the UK has for some time been working under a system of “de facto unicameralism”  (‘The Future of the Second Chamber’ (2004) 57(4) Parlt. Aff. 852, 855), he is right to emphasise the emasculated role of the Lords, deriving mainly from the conventional limits upon its powers, which stem in turn from its perceived lack of legitimacy. It is a commonplace that our constitution lacks the formal checks and balances that other democracies have and, as a result (many believe) still suffers from an over-mighty Executive, able to secure the passage of most of its legislation, however draconian or ill-conceived. The argument then is that we need a more legitimate and therefore more powerful upper chamber with the confidence to make much fuller use of its existing powers to amend or delay legislation where it considers that the government needs to think again (see e.g. the evidence of Dr Renwick to the Joint Committee on the Draft Bill, para 56). As the Public Administration Select Committee argued in a powerful report back in 2002, “second chamber reform is … about strengthening Parliament as a wholein relation to an executive that is uniquely powerful in the British system” (Fifth Report of 2001-2002, hereafter, ‘PAC’). I also believe that the Government (and the PAC) were right to propose a majority-elected House rather than a fully elected chamber; I have made that case elsewhere (‘Solving the second chamber paradox’ (2004) PL 352), and do not repeat it here. Instead I examine the main arguments against the proposed reform, those which carried the day.

The main bogeymen: Commons “primacy” and gridlock.

This was perhaps the main argument against the Bill, expressed over and over again by Conservative MPs and others: that reform of the second chamber would “threaten the primacy of the Commons” and lead to gridlock, because a reformed chamber, no longer hamstrung by its lack of legitimacy, would use its legal powers far more fully than at present. This argument was repeated so often that we have become used to it, but when one stands back and thinks about, it is really quite extraordinary: essentially the contention is that we should keep the Lords as it is precisely because of its lack of legitimacy, which allows the Commons routinely to override it, thus preserving its “primacy” and preventing gridlock. It is evident that some means of preventing endless partisan struggles between the two chambers of the legislature is needed. But the current system – using the acknowledged lack of legitimacy of one House in order to make it too hesitant to use regularly the powers that it has – is an extraordinarily crude and wrong-headed way to achieve this result. No-one would propose a deliberately illegitimate chamber as part of a new constitutional settlement in a democracy. The passionate defence of the current House by so many merely illustrates once again what has been called the astonishing power of the actual.

But of course the argument is also flawed and exaggerated even in its own terms. Let us deal first with the endlessly-repeated fear that a democratic Lords would “threaten the primacy of the Commons”. Exactly what this meant was never fully explained but the basic argument is quite evidently wrong. The Commons’ “primacy” – meaning its status as the foremost chamber – is secured by a number of factors. The most important of these are: the Parliament Acts, which legally limits the powers of the Lords; the fact that only the Commons can vote supply, and that only the Commons can throw out a government, through a motion of no confidence and bring about an early General Election (under the Fixed Term Parliament Act 2011). All of these factors would remain after reform (if necessary, legislation could specifically state that the Parliament Acts applied to the new House). Moreover, the combination of rolling replacement of its membership with long terms of office in the upper chamber – meaning that the Commons could always claim the fresher mandate – plus the 20% appointed element, would stop the Lords claiming primacy even in terms of democratic legitimacy. The “primacy” point, then, is simply misconceived.

The fear of “gridlock” is the weaker and more rational, but still exaggerated version of this argument. Undoubtedly, as the Joint Committee observed (para 34), a reformed House would use its legal powers more, to an extent that we cannot predict with certainty. At least some of the conventions currently restraining it would drop away, or weaken. While the Lords would still be legally subordinate to the Commons, and have less of a democratic mandate, the Upper House would become more powerful in practice. It is curious, however, that this is so often characterised as a negative factor, given that ensuring a more powerful second chamber is one of the main arguments in favour of reform. What would be the consequences of a more assertive Lords? Assuming that no party ordinarily had a majority in the second chamber (a crucial condition for reform) it would mean that governments would have to negotiate and sometimes compromise in order to get their legislation through it, although presumably some version of the Salisbury convention in relation to manifesto Bills could be retained. Would this be so bad? Russell’s research clearly indicates that, while Government control of the second chamber can render it too weak and Opposition control too likely to result in deadlock with the first chamber, the option of no overall control is “the most effective option”, because a House “controlled by forces independent of government can help create a form of consensus politics which results in better political outcomes in the longer term.” (Reforming the Lords: Lessons from Overseas (OUP, 2000), (hereafter ‘LFO’) at 299 and 164). So where the government had a policy that was manifesto-mandated, or had cross-party support, or was very popular (such that the parties felt it imprudent to oppose it) it would still be able to get its legislation through, without much difficulty. But where both opposition parties opposed it, and the government could not convince the independent peers to support it, it would either have to wait a year and then use the Parliament Acts, or make concessions. Given that a non-manifesto policy opposed by both other parties would typically be one that was at best notionally supported by only around the 40-odd per cent of the electorate who voted for the government, it is not clear why this would be such a bad thing.

Such arguments, however, got little airing in the Lords reform debate. More opposition from the Lords was considered to be self-evidently bad, because it would inevitably lead to “gridlock” – again, not a term that was generally explained, but one which sounded like the government’s whole legislative programme being brought to a juddering halt.  That this would be the result of a more democratic Lords was indeed generally presented as a plain fact; thus Tory MP Nick Soames said, “The inevitable result of [the reform] will be gridlock and constitutional crisis” (Telegraph, 9 July 2012), while Vernon Bogdanor stated bluntly that “The upper House would become an opposing rather than a revising chamber” (JC Report, para 30).  Such statements however, are not factual propositions, but speculative conjectures and not ones supported by the overseas evidence. And it is here that the debate was at its most frustrating.

Meg Russell at the UCL Constitution Unit has done extensive and excellent research in this area, including in her Lessons from Overseas book (and see her evidence to the Joint Committee). And yet time after time, politicians, academics and pundits felt able to confidently to pronounce on what would happen in a system where the second chamber was largely or wholly elected, without citing even a jot of the widely available evidence which, broadly speaking, serves to refute the “gridlock” fear.  As the PAC crisply put it in its 2002 report: “Three quarters of the 64 bicameral legislature around the world have largely or wholly elected second chambers, and very few suffer from … difficulties [of gridlock]“. Countries which actually do at times suffer from legislative deadlock, such as the United States or Australia, have systems in which the two houses are co-equal, there being no mechanism like the Parliament Acts which allow one simply to override the other, or ones like Japan, in which a “super-majority” in the first chamber is needed to bypass opposition in the second. If the electoral system allows the Opposition to have a majority in the second chamber – as can happen in both the US and Australia – this also tends to aggravate the problem.   (The latter point is one reason why the principle of “no overall” control in the second chamber has commanded widespread acceptance for some time, and hence why (as the Government rightly proposed) the second chamber must use some form of PR for its electoral system). In other words, those countries with elected second chambers that do suffer from deadlock have quite different constitutional setups from the UK’s. However, many contributors to the debate appeared to feel no need to deal with the fact that the overseas evidence either did not support, or even contradicted the predictions they so confidently made. With respect, the same thing may be said about the comments of Nick Barber and Danny Nicol on this blog that adding democracy to the Lords would not enhance democracy in the UK because, if there are too many elected bodies “citizens will become uncertain about which bodies they should engage with, and may tire of the process.” One might expect at least a nod to the fact that a very large number of democracies have some form of elected second chambers; acknowledgment perhaps of a need to inquire whether the citizens of such democracies really are confused by this and therefore less engaged citizens.  Must the solution to this alleged problem really be an undemocratic chamber of Parliament?

The Lords does not need democratic legitimacy for the kind of work it does

This is one of the more subtle arguments against democratic reform of the second chamber. In its cruder forms, it rests on a straightforward misrepresentation of the work the Lords actually does, as when the Daily Telegraph claimed that, “The purpose of the Upper House is not to make law, but to ensure that the power of the elected chamber is kept in check and its legislation properly scrutinised” and that it was “a revising chamber devoid of legislative authority”. Such claims are simply false – and internally contradictory to boot: how does the Lords “keep in check” the power of the Commons except by revising – that is, amending its legislation – and by doing so, make law? With slightly more plausibility, it is sometimes instead said that the Lords are not “legislators” but “revisers of legislation, a task that does not require election to confer legitimacy.” One might dismiss such objections as pure conservative propaganda, until we note that similar things were said by Professor Sir John Baker of Cambridge University, who in evidence to the Joint Committee argued that the House of Lord’s role “does not require the sanction of the ballot box to give it legitimacy any more than the judicial role because the House of Commons can insist on the last word” (Report, para 18).

There are several possible arguments mixed up here, and they need to be teased out. Some appear to rest on the notion that “revising” legislation is just “scrutinising” it, which doesn’t require democratic legitimacy. Hence one parliamentarian argued that “The upper House is…like an audit commission examining legislation passed by Parliament…Selecting people to perform a scrutiny or audit role is very different from selecting people to produce legislation, or determine public policy and the shape of a Government (HC, Deb, col. 244, (January 21, 2003).  But this is a simple misstatement of the role of the Lords: select committees, academics, lobby groups, NGOs etc all scrutinise legislation, but only the House of Lords gets to change it.

In the face of this obvious fact, the argument sometimes changes to one a little closer to reality: that, while the Lords proposes changes to legislation, it always defers if the Commons doesn’t agree. This casts the Lords as some kind of advisory body, tentatively proffering its views on legislation, but immediately backing down if the government or the Commons doesn’t like them. As one peer put it, “when the Commons disagrees with our view, we always recognise, with no argument, that it has been elected and we have not, and we surrender”. (HL col. 666, (January 21, 2003 (Baroness Knight)). Similarly, a cross bencher, Lord Karkkhar recently argued that the current House “ultimately and always” bows to the “primacy” of the Commons.  However, it is simply not the case that while the Commons legislates, the Lords merely proposes revisions. The Lords does what the Commons does: it doesn’t create legislation (private members Bills aside), rather it assents to government Bills and amends them. The difference of course, is that the Lords amends legislation against the wishes of the government quite frequently, whereas the Commons does so extremely rarely. It was pointed out during debates on Lords Reform under Blair that of the first 639 whipped votes held under that government, the Lords defeated the government in 164 of them, that is, one in four.  Most recently, in the 2010-12 session the Lords inflicted 48 legislative defeats on the government,  compared to none in the Commons.  Of course the Lords  often give way, if their amendments are rejected by the Commons even once, but, in some cases, they do not, and pressure of time then forces the government to accept them. As Lord Forsyth put it: “People believe that this House has no powers, but it has the power to bring the whole of the Government’s programme to a halt if it chooses to do so” (HL Deb, col.244, (January 21, 2003). The Lords is therefore a more active legislative body than the Commons. And it is also not the case that Lords’ amendments are invariably concerned only with drafting or technical aspects (therefore not requiring democratic legitimacy). Well known examples from the last ten years or so of legislation in relation to which important legislative changes were forced upon governments by the Lords include: the European Parliamentary Elections Act 1999,  the Mode of Trial Bill (2000), the 2001 and 2005 Terrorism Bills and the Racial and Religious Hatred Bill 2006.  The Lords’ insistence in 2007 upon the extension of the new offence of corporate manslaughter to include prison and police officers was another notable example: this amendment of principle was rejected four times by the Commons and Government but finally forced upon them by the Lords (Corporate Manslaughter and Corporate Homicide Bill 2007).  And the Lords has continued its active role since the Coalition Government came to power: well known examples include the marathon struggle over the Parliamentary Voting System and Constituencies Bill and changes made to the Legal Aid and Health and Social Care Bills.  The Constitution Unit furnishes many other examples from the last seven years.

Once this is accepted, it becomes clear that the actual work of the Lords requires democratic legitimacy. Any body of “wise persons”,  academics, NGOs, professional organisations etc, could set themselves up into an advisory body and scrutinise government Bills, suggesting amendments to it. Many such bodies in effect do this, when they comment on Green or White Papers, or even draft legislation. This is of course a useful process. However, were such a body suddenly to announce that it had the right to reject or change provisions in legislation carried by the Commons–an absolute right in the case of secondary legislation—there would naturally be an outcry at its illegitimate arrogation of legislative power. Such a body would have no more right to alter legislation than the law school of which I am a member would have the right to amend a Criminal Justice Bill, claiming as its legitimacy to do so, the undoubted collective expertise and independence of its members.

The final variant of the argument considered here is the comparison of the current House of Lords with the judges: both, it is said, are not elected, and yet both wield considerable powers over legislation; since we accept one, we should accept the other (see e.g. the recent comments of Professor Baker above). This argument is flawed because it pays no regard to the quite different roles of the judges and that of the second chamber of Parliament. In comparison with the enormous and possibly still legally unlimited power wielded by Parliament, the judicial branch exercises only a relatively narrow band of power, which is ultimately either given to it by Parliament (in the case of statutory interpretation) or confined to issues that Parliament has acquiesced in leaving in judicial hands (the common law). Even in relation to their extensive powers under the Human Rights Act (HRA), the courts remain bound by unambiguous incompatible primary legislation; importantly also, these powers were explicitly given to the courts by Parliament and may be removed by simple repeal of the HRA. Moreover, in making their decisions, judges are not called upon to exercise their own unconfined judgment, still less their party-political views. They are not asked to decide, de novo, what they think best for society. The House of Lords as a legislative body is, precisely, asked to do this: to bring peers’ individual political views to bear upon issues such as foundation hospitals, fox-hunting, liability of the police for corporate manslaughter, cuts to legal aid and changes to the governance and structure of the NHS. Peers thus exercise political power in a quite different way from the judiciary: they are asked to offer a view on the same issues as the Commons, issues that are the routine stuff of political conflict.

The hybrid nonsense.

Nick Barber suggests that hybrid models in general are of a “low standard” and some hostility towards the proposed hybrid model in the Bill was evident during the reform debate. Such arguments fall into two main strands considered below.

“Hybridity is incoherent”

The first main argument against hybridity is the so-called “Strathclyde paradox (after Lord Strathclyde, former Conservative Leader in the Lords): “If election is so good, why should the public not elect all our Members? If it is bad, why elect any at all?” This piece of schoolboy logic has gained considerable support.  Lord Cunningham’s evidence to the Joint Committee was to this effect, arguing against what he termed the “the muddle in the middle”: “You cannot be half democratic. You have to be either democratic or not” (para 96). Such arguments are flawed because they rests upon the false premise that electing members is straightforwardly either good or bad. But reform of the Lords must be judged against more than one criterion. Russell’s study of second chambers overseas led her to propose three crucial factors (LFO, pp. 163-164 and 250-254), which were adopted by the PAC in its 2002 report: distinct composition; perceived legitimacy; adequate powers. Parliament’s previous Joint Committee on Lords Reform expounded the distinct composition point to include principles of no domination by one party, (relative) independence from party and technical expertise of the sort that the current House offers ((H.L. 17 H.C. 171 (2002-03), para 3). If these are borne in mind, it becomes apparent that election to the second chamber has some advantages and some drawbacks. Election is “good” in terms of legitimacy: if there were to be no elected members, this would prevent the House from having sufficient democratic legitimacy to assert itself effectively against the Executive-dominated Commons. But the issue does not rest solely upon legitimacy. Once we recall the “distinctiveness” factors just noted, we can see why we might not want all the chamber’s members to be elected, desirable though this would be in terms of legitimacy. Such a course of action would preclude the appointment of non-politicians to the House, who would add expertise, independence and thus distinctive value to it. Having different classes of members – in other words a hybrid House – ensures that these different requirements can all be met.  In contrast, the so-called Strathclyde paradox only has any force if it is assumed that reform of the Lords is to be judged by one criterion alone.

“Hybridity would be unstable”

The other objection, originally voiced by Vernon Bogdanor, was that a House with a mixture of unelected and elected members would be unstable, with the unelected members being stigmatised (“who elected you”?) if they frustrated the will of the elected ((Reform of the House of Lords: a Sceptical View’ (1999) 70(4) Political Quarterly 375).  Fortunately, this argument now appears to be losing traction: it did not appear to trouble the Joint Committee unduly, and indeed, clearly has little force in a chamber with 80% elected members, who could never be outvoted by the unelected members. (This did not stop Lord Cormack complaining mysteriously to the Joint Committee that the Government’s Bill “would create a situation where the will of the elected could be frustrated by the non-elected” (para 96), without explaining how the 20% appointed membership could outvote the 80% elected). Unelected members would have to side with elected members in order to win a vote so there would never be a clear division between the two groups. In the odd instance in which the votes of appointees acted as a tie-breaker as between the votes of the divided political members, the public would probably view with relief the sight of the squabbling parties having the issue resolved by the dispassionate intervention of independent experts. Russell finds little or evidence either from overseas or the current Lords that having a mixed membership in this way would cause problems (JC, para 105).  Again, however, such evidence was rarely cited. Instead, parochialism reigned, and Lords reform once again languishes in the long grass.

The writer gave evidence to the Joint Committee on Reform of the House of Lords. 

Gavin Phillipson is a Professor of Law at Durham University.

 Suggested citation: G. Phillipson, ‘Lords Reform: why opponents of the Government Bill were wrong’ UK Const. L. Blog (26th September 2012) (available at http://ukconstitutionallaw.org).

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Nick Barber: House of Lords Reform: A Look in the Long Grass.

The fall of the Coalition’s proposals for reform of the House of Lords has not come as much of a surprise.  In terms of constitutional reform, the House of Lords has graduated from a running sore to a running joke.  Constitutional lawyers can barely muster the strength to read the latest in the never-ending cycle of soon-to-be-defeated proposals.

That is not to say that the apparent death of the Draft Bill should be regretted.  Like all recent attempts to reform the Lords, it proposed a combination of elected and appointed members.  But even by the low standards of hybrid models, it was a particular stinker of a proposal.   There was plenty to object to in the Bill.

The process by which the members of the Lords would have been elected was complicated and opaque.  Voters could choose between voting for an independent candidate, or for a party, or for a party candidate.  The constituencies would have very large – perhaps dividing the country into twelve or so units – and multiple members would have represented each territory.  The system by which the votes cast would have translated into representatives was far from simple. To add to the complexity, a different electoral system would have applied to Northern Ireland, and a further, distinct, mechanism would have been invoked when a vacancy arose.

The appointed element would have consisted of not one but three separate categories.  There would have been regular appointees, Bishops, and ministerial members.  The inclusion of Bishops in the proposal was surprising.  Predictably, the mechanism by which Bishops would gain admissions to the Lords was convoluted.  Five Bishops got to sit as of right, but another seven would have been selected by the Church – presumably through a process to be determined by some Synod or other.  This statutory restraint is curious: it allows a body that is supported by only a portion of the population unfettered latitude to determine the manner of selection of some members of the state legislature.

The ‘ministerial members’ category was included to maintain the power that the Prime Minister currently possesses to appoint Ministers from outside of the Commons by putting them in the Lords.  The Prime Minister would have been limited to appointing eight Ministers to the Lords under this provision, but when they ceased to be Ministers they would stay on in the Lords, and the Prime Minister could then appoint a new ministerial member. It was hard to see what would limit the proliferation of ex-ministers of this type in the House: the shelf-life of Ministers can be very short.  One possible answer to this conundrum – proposed by Joint Committee on the House of Lords Reform Bill – was to allow ministerial members to sit in the Chamber but not vote.  This proposal, which sounds a bit like a payoff to a joke, was not adopted in the final version of the Draft Bill.  The category of ministerial members has the potential to confer a significant power of patronage on the Prime Minister and could significantly affect the balance of members in a reformed Lords.

Members of the Chamber would have been appointed for up to 15 years – a surprisingly long length of time.  Having served, they would not be permitted to stand for the Lords again, and, for four years, would not be permitted to stand for the Commons.  These restrictions would have ensured an independence of mind on the part of members of the Lords, but would have given the electorate little leverage to hold their representatives to account.  These members would have little incentive to maintain connections with the communities that voted for them.  It is interesting to speculate about the type of person who would be attracted to an office of this type.  They would have to be interested in politics – probably, their election would require the support of a political party – but not interested in a long-term political career.

These oddities were generated by the two contrary impulses that characterise Lords reform – and which have ensured that no proposal has secured consensus over the last century.  First, there is broad recognition of the value of a scrutinising second chamber.  The House of Lords does a good job, but it does a good job because it contains many who are not politicians but are rather experts in different areas of life.  Set against this, there is a reflex insistence that the Chamber must be elected.  The more or less articulated belief is that all elements of the legislature require some sort of democratic mandate.  In short, reformers want to keep the Lords as an expert apolitical revising chamber, whilst simultaneously reducing the expertise it possesses and politicising it.

It is this dilemma that may explain the otherwise peculiar failure of Labour to reform the Lords over their long period in office.  Whilst politicians feel constrained to argue for election to the Lords in public, in private many of them worry that this would destroy what is valuable in this institution.  Their actions often fall short of their words.

So what is to be done?  I have a few modest proposals.

For the time being, the push for an elected second chamber should be abandoned.  Far from being a rejection of democracy, an embrace of an appointed second chamber should be seen as a way of upholding democratic values.   All constitutions need elected bodies to determine the policies of the state, but it is a mistake to think that the more elected bodies a system has the more democratic it becomes.  Having too many elected bodies can harm democracy. In order to be a successful democratic body, the legislature must continue to engage with those who have chosen its members, even in between elections.  Voters must correspond and interact with their representatives.  If there are too many such bodies, citizens will become uncertain about which bodies they should engage with, and, as civic virtue is a finite commodity, may tire of the process.

In addition, democracy requires an effective legislature, one that can accomplish things.  Not only must the democratic institution speak for the people, it must also be able to act on their behalf.    A standing danger of Lords reform is that an elected second chamber will become too activist, and will prevent the Commons from setting the policies of the state.  If Parliament becomes deadlocked, the state will no longer be governed democratically; indeed, it will not be governed at all.  This question was considered with some care by the Joint Committee on the House of Lords Reform Bill.  This Committee warned that including statutory provisions to preserve the primacy of the Commons ran the risk of the judiciary intervening in the running of Parliament.  On the other hand, using conventions to shore up the relationship depends on the continuing willingness of the institutions to respect this balance.  The Committee’s proposal – the agreement of a concordat between the Houses – relies, at its base, on convention.  As the Committee recognises, it may prove hard to maintain this concordat over time as an elected Lords grows in confidence.

Lovers of democracy should be wary of making the second chamber elected.  Forty years ago a strong argument could have been made that this was needed; that the Commons was too powerful.  This argument is no longer attractive.  The Commons is hemmed in on all sides.  There are other democratic institutions – at the devolved and European level – that effectively check what the Commons can do.  And the courts now have a limiting role, too, using European Law and the Human Rights Act to shape and, sometimes, restrict Parliament’s statutes.  At present there is no need for another elected body in the constitution.

This is not to say that the Lords cannot be improved – but these improvements should go with the grain of the current body, making it work better as an appointed revising chamber.  The easiest, and most obvious, reforms would be to remove the hereditary peers and Bishops from the chamber.  Having an hereditary element is indefensible and, with the possible exception of 95 or so aristocratic grumblers, their removal would not be controversial.  The Bishops should also not sit as of right, though a number might properly return as appointed members.  Whilst the Church of England provides much harmless entertainment – and, in its discussion of gender roles and sexuality, a fascinating glimpse of the moral debates of a bygone age – it is hard to see why it should have privileged access to the legislature.

Attention should then turn to the process by which members of the Lords are appointed, a mechanism that was significantly improved by the last Labour government.  This should be crafted in order to fulfil the aims of the Lords as a scrutinising and revising chamber.  So, members should be appointed because of their capacity to undertake this task, and not because of their services to a political party.  An appointed chamber gives a chance to ensure that independent expertise is present in the system and, also, that groups which are not properly represented in the Commons are given a voice.  Addressing this question should be the focus of the next thrust of Lords reform.

Nick Barber is a Fellow of Trinity College, Oxford.

Suggested citation: N. W. Barber, ‘House of Lords Reform: A Look in the Long Grass’ UK Const. L. Blog (12 July 2012) (available at http://ukconstitutionallaw.org).

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Jack Simson Caird: Parliamentary Constitutional Review: The Case of the Health and Social Care Reform Bill

There are certain news stories which require a double-take. On the 11th and 12th of October, a number of UK news sources reported that the Health and Social Care Reform Bill was facing strong opposition in the Lords because of the ‘constitutional questions’ it raised. Hearing this on the radio in the morning, perhaps before a dose of caffeine, you might have thought that you had misheard and that for some strange reason Barack Obama’s health legislation was still going through Congress, or, more likely, that another country with a codified constitution was deep in debate over a legislative proposal that sought to radically reform their health system. Students of the British Constitutional do not expect major political debates in the United Kingdom, such as the current debate over the reform of the National Health Service, to focus on ‘constitutional’ questions.

That the constitutional implications of the bill became the focus of the Second Reading debate in the Lords would not be a surprise if you have been following the chamber’s legislative scrutiny work during the current parliamentary session. It has long been noted that the Lords, as a legislative chamber, takes a special interest in constitutional matters, but what this parliamentary session has shown is that they are getting exceptionally good at constitutional scrutiny. In this post, the example of the Health and Social Care Reform Bill is used to highlight this work and in particular the contribution of its own Select Committee on the Constitution.

Why was the British media reporting on the subject of the constitutional implications of the Heath and Social Care Reform Bill on the 11th and 12th of October? On the 30th of September the House of Lords Select Committee on the Constitution published its report on the Bill, and it is this intervention which is the root cause of the media stories. The report is a remarkably effective piece of constitutional analysis. It explains clearly and succinctly the three key changes that the proposed Bill would make to the existing duties of the Secretary of State for Health [para. 13]. The report then explains:

The combination of these changes matters, constitutionally, because it is not clear whether the existing structures of political and legal accountability with regard to the NHS will continue to operate as they have done hitherto if the Bill is passed in its current form. As such, the House will wish carefully to consider whether these changes pose an undue risk either that individual ministerial responsibility to Parliament will be diluted or that legal accountability to the courts will be fragmented.’ [para. 18]

The implication is clear, these changes to the responsibility of the Secretary of State are not, in their view, constitutionally acceptable. It is noticeable that the report does not just issue its judgment, it then invites peers to act.

The media stories of the 11th and 12th of October were actually directly prompted by the amendment to the motion moved by Lord Owen, and supported by Lord Hennessy of Nympsfield. The amendment sought the appointment of a Select Committee to examine the issues raised by the Constitution Committee’s report. The media stories appeared to be mainly interested in the amendment because the government claimed that it if successful it could wreck the Bill, a fact that the authors denied.  The Committee would work alongside the committee of the whole house and its sole focus would be on the constitutional implications of the Bill. The proposed Select Committee would have Parliamentary Counsel at its disposal, to enable it to resolve the issues relating to the proposed changes to the constitutional responsibilities of the Secretary of State. The authors pointed out that this procedure was not without precedent, it was used on the Constitutional Reform Bill in 2004 and was regarded as a success. Lord Owen explained that the normal process, of a committee of the whole house, was less likely to secure the changes to the Bill which the Constitution Committee has called for: ‘only the weight of an all-party and probably unanimous Select Committee will give the weight to make this change.’ In the end the vote on the amendment was lost by sixty-eight votes, however, the loss does not diminish the value of this example, what I am interested in is the political process which led to the vote.

Over ten years ago, the Wakeham Commission on Reforming the House of Lords, recommended the establishment of a committee on the constitution, which would help the House of Lords to act as constitutional ‘longstop’. The Lord Owen amendment and the media stories that reported it are both evidence of the impact that the Committee’s work is now having. The Committee is establishing itself as the United Kingdom’s primary constitutional interpreter and there are number of reasons which can be offered to explain this achievement. Its Bill scrutiny reports contain exceptionally good constitutional analysis, which is both direct and accessible in style, and crucially these reports are having a major impact on legislative debates. The reason for this is that the Constitution Committee is a proper legislative committee, in that it employs tactics to ensure that its analysis get the maximum exposure in the legislative debate on the Bill. The Committee’s Annual Report of 2007-2008 explained that it had adopted the practice of tabling amendments in the name of the Chairman, to ensure that its concerns did not disappear from view in the Committee stage. Additionally, the Committee tries to ensure that its scrutiny reports are published before the Second Reading debate so that peers have the opportunity to engage with the report and the bill at the earliest possible stage. [para. 6]  The Lord Owen amendment and publicity which is created was a direct result of the fact that Committee had managed its report in good time so that peers had a chance to digest the information and react.

Strategy played a part in getting the constitutional questions into the media reports, but the other key factor was the quality of the analysis within the report. One reason to explain how the Committee can produce such a persuasive piece of constitutional analysis is the quality of the personnel at its disposal. The Committee is a good example of a subject specialist committee, in that its membership has a great deal of constitutional expertise. It includes among its members: Lord Norton of Louth, a leading expert on parliaments and the British Constitution, Lord Goldsmith the former Attorney-General, Lord Irvine of Lairg the former Lord Chancellor and Lord Pannick, a leading barrister who specialises in Public Law and Human Rights. In addition two part-time legal advisers serve the Committee: Professor Richard Rawlings and Professor Adam Tomkins. The constitutional expertise within the committee ensures a high quality of analysis, and also gives the committee a special status. The membership is regarded as eminent and unpartisan, and this means that when the committee issues a critical report, the House of Lords is sure to listen.

At this stage it is not clear what the impact of the Constitution Committee’s report will be on the bill. However, if the example of the Public Bodies Bill is anything to go by, the Committee Stage could see the Government make the changes that the Constitution Committee’s report demand. In that case, the government initially resisted the Constitution Committee’s call for alterations to the Henry VIII clauses within the Bill, but after consistent pressure from the Lords, where virtually every speech made reference to the Committee’s report, the Government accepted the need for major changes. If something similar occurs with the Health and Social Care Reform Bill it would confirm my suspicions that we are witnessing the emergence of a form of parliamentary constitutional review in the United Kingdom. That it is the House of Lords which is adopting the practice, is perhaps evidence of the benefit of having legislators operate with the threat of reform over their heads.

It is often noted that the idea of ‘constitutionality’ does not apply to the British political context because of the absence of a codified constitution and a designated constitutional interpreter. However, the Bill scrutiny reports of the Select Committee on the Constitution are beginning to change this and the idea of ‘constitutionality’ appears increasingly important to the UK’s legislative process. Although the Constitution Committee has no formal powers, its ability to influence other Lords is allowing the Committee to take make a real impact on the legislative process.

Jack Simson Caird is a doctoral student at Queen Mary University of London.

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Appointments to the House of Lords

According to the BBC’s James Landale, a cross-party group of peers have cautioned the PM not to make any more appointments to the House of Lords. The caution comes in a report from UCL’s Constitution Unit that says that the PM’s creation of 117 peers within the last year has had a “negative impact” upon the culture of the upper chamber. Readers of the blog who followed the filibustering and threatened guillotine during the passage of the Parliamentary Voting System and Constituencies Act 2011 might be minded to agree.

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