The House of Lords deserves its place
In this series of articles on the strengths of our political system, I have looked at its various aspects and how overall it functions well. Yet there are no shortage of critical voices calling for ever more constitutional reform, especially as regards the House of Lords – the perennial whipping boy when it comes to ‘updating the constitution’.
Virtually all governments come to office, including the Coalition in 2010, promising ‘radical reform’ to the Upper House. Yet, almost without exception, these reforms are dramatically diluted, or shelved altogether, and the Lords generally continues as before. The reason for this is, first of all, because the Lords does a good job at revising and remedying legislation and, secondly, because reforms tend to throw up knottier problems than they attempt to solve. Another reason is that constitutional reform tends to take up huge amounts of Parliamentary time, as all these problems have to be confronted and addressed, despite being of almost no interest to the average voter. The Government is not normally short of other legislation which is.
There is often an important misunderstanding as to the role of the House of Lords, which that it is not a legislative chamber, but a revising one. Its purpose and great strength is to work through legislation from the Commons, using the long and deep expertise of its members to point out shortcomings in the legislation, and to offer refinements and improvements.
It is for this reason that the Lords is already subordinate to the Commons in several ways. The elected chamber can pass ‘Money Bills’ without the consent of Peers, and the Salisbury Convention holds that the Lords will not stand in the way of manifesto legislation. The Parliament Act long ago stripped away Peers’ ability to block legislation entirely; it can only delay it for a time before the elected chamber can proceed despite it.
Especially in recent years, there have been comments that the Lords has become more ‘activist’ in tabling particularly ‘hostile’ amendments to Government legislation. It is certainly true that the number of Government defeats in the Lords has risen markedly. However, defenders of the Lords point out that this is because Peers – and, to be fair, many outside the Lords too – believe that the Commons is not giving legislation the scrutiny in their House that it requires and deserves.
There is merit to this argument: there is always a balance between allowing MPs to scrutinise legislation and the Government business managers wishing to pass legislation. As a result of the Brexit and pandemic periods, this balance has tended more towards the latter than the former, and is becoming the new normal rather than the exception. It is increasingly common to hear Ministers refer to the need for ‘emergency legislation’, and pass all stages of complex bills in a matter of a few days, or even just a single day. This legislating in haste inevitably increases the chances of mistakes.
This tendency towards haste has been given impetus by the introduction of ‘family friendly hours’ in the Commons. In general I am in favour of these, as ensuring that no-one is barred from the role of an MP opens up participation and helps to ensure a representative Parliament.
However, there is no doubt that the shorter hours, plus the growth of closure motions and other procedural devices which accelerate and shorten procedure, has led to less scrutiny than has been the case historically. This also suits the business managers, who prefer to keep the window for backbenchers to table potentially awkward amendments as small as possible. The average Commons sitting day is now seven hours and 37 minutes, down from nine hours and four minutes in the 1980s.
There is also the phenomenon that, in an increasingly impatient and unforgiving environment, exacerbated by social media and the constant media cycle, what up until recently would have been considered the usual questioning of legislation and government policy by Peers is framed by the Government and its supporters as ‘obstructionism’ by the unelected House. It was quite reasonable for Peers to cause the Government to think again when they proposed breaking international law during the passage of the Internal Market Act, and persuading the Government to abandon this course made for better policy and better international standing for the Government and country combined.
Where critics of the Lords are on stronger ground is when they criticise the makeup of those appointed to the Upper House. Whilst the majority of appointments are uncontroversial, the appointments of donors or political advisors can attract adverse comment that peerages are being doled out to cronies. These are moot points – there seems to be little public appetite to pay taxes to support political parties, so appointing political donors to the Lords is a fairly cost-free way of thanking them for their support.
Nevertheless, there is an argument for increasing the independence of the House of Lords Appointments Commission – although this should be balanced against the Prime Minister’s right to appoint those to the Lords whom he wishes to serve in Government –both major parties have used this route in their recent administrations, and there is nothing improper about it.
Criticism of the Lords on account of its size seems wide of the mark. Peers are not intended to be present all at the same time, unlike MPs in the Commons, and generally only participate when their area of expertise is being discussed. Having a wide and deep store of experience and knowledge is an advantage, and it is not really relevant how many Peers there are. Recent reforms have enabled Peers to take a leave of absence, retire (but retain their title), or be retired if they have not attended within the previous Parliament. These are all sensible measures.
The Labour manifesto did reference various reforms to the House of Lords, the most immediate being the proposal to finally remove all hereditary peers. There is little mention of why this is urgently required, rather than adopting Lord Grocott’s sensible proposals of several years ago. This would have seen the ending of the slightly absurd by-elections to fill a vacant slot when an hereditary peer retires or dies. Hereditary peers would thus gradually fade away through this natural wastage, allowing those hereditary peers who make a good contribution – Earl Howe has been on the Conservative front bench since 1991 – to continue to do so. This does seem to be an idea mainly to reduce the number of Conservatives in the Lords, rather than anything else.
The idea of bringing in a mandatory retirement age of 80 (at the end of each Parliament), although in the Labour manifesto, appears to have been shelved for the time being. This is another misguided proposal, given that Peers in their 80s (and above) are perfectly capable of providing valuable insights. Some have pointed out that judges are required to retire at 75, at which point some are given peerages where their knowledge of the law is useful: under this scheme, some judges may only be able to serve a single Parliament as a member of the Lords, which does not seem sensible. There would also be a perverse incentive to appoint ever-younger Peers.
More broadly (and more vaguely), Labour intends to consult on ‘replacing the House of Lords with an alternative second chamber that is more representative of the regions and nations’, no doubt building on Gordon Brown’s proposals of several years ago when he proposed an elected second chamber which represented all four nations of the United Kingdom.
This really is opening up a proverbial can of worms. Electing members of the upper chamber sounds attractive, but one only has to look at the United States or France to see the enormous drawbacks when different parties control the lower and upper houses. It is surely difficult to see the political deadlock – including budget shutdowns and the like – and then believe it would be a good idea to import these problems to the UK. Unlike today, an elected second chamber would directly challenge the Commons, and would lay claim to an equal legitimacy based upon its own mandate. Indeed, the reduced political temperature by not having to seek election, and the ability to take the long view, are some one of the many advantages of the current Lords and has a positive effect on their revising activities. If the second chamber becomes a carbon copy of the Commons, who then will actually scrutinise legislation?
In the longer term, abolishing the Lords in favour of an elected upper house would also give impetus to much wider reforms, such as the federalisation of the UK and the production of a codified constitution. This would be a huge breach in the British tradition, where an unwritten – and therefore flexible – constitution has allowed our political system to accommodate changing times and challenges, including the Brexit referendum, the pandemic and devolution.
Establishing a written constitution is generally what countries do when they require a clean start – a ‘year dot’ – after a wholesale calamity such as war or revolution. Such documents did not prevent the rise of the dictators in 1930s. The traditions and political systems of the United Kingdom have accreted organically over hundreds of years, and are consequently wide and deep. Writing such a constitution would dominate the political agenda for many years, even decades. If such an exercise were merely to codify what is currently done by convention and tradition, a serious question arises as to whether all the trouble is worth it.
John Baron is the former Conservative MP for Basildon and Billericay and a former Shadow Health Minister.
