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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).