House of Lords Reform: What I Support

Meg Russell and Meghan Benton last year (1) surveyed the Lords on behalf of the House of Lords Appointments Commission to analyse the breadth and depth of experience in the Lords.  The single largest group (about 100-150) was that of former MPs, with the legal professions also well represented.  There are also a large proportion of peers with business and finance backgrounds, as well as backgrounds as academics, foreign affairs, and some trade unionists.  There’s a fair few defence specialists, civil servants and Armed Forces servicemen.  Areas less well represented include architecture and engineering, transport, non-higher education, the leisure industry, science and local authority administration, and very few peers with manual trades backgrounds.  There is a lack of peers who are surveyors, planners, environmentalists and schoolteachers.  There are relatively few peers with experience in international organisations.  There are other weaknesses in public health.

I’ll be the first to admit it: the Lords isn’t perfect.  But it still doesn’t follow that because of these flaws election is the only answer to resolve them.  Election will, I hope you’ll agree, turn the small body of former MPs in the very large body of wannabe MPs.  Instead of assuming it’s an either/or matter, we should look for a way to improve the flawed, existing mechanism.

My proposals for reform follow largely Lord Steel of Aikwood’s Bill, which has been proposed in the Lords several times in the past few years, but apparently has not yet made it to the Commons.

The Bill proposes to place all appointements under the control of a Statutory Appointments Commission consisting of nine members nominated by the Speaker of the House of Commons and the Lord Speaker of the House of Lords. At least four members, including the chair, would be independent of any registered political party, and there would be a political balance among the other members.

Candidates for nomination to the Lords would be of three types:

• ‘Party nominees’ (by any party with more than 6 seats in the Commons), as long as the Commission considered the procedure and criteria the party used for nomination were satisfactory;
• ‘Prime Ministerial nominees’ (separate from his party); and
• ‘Non-party nominees’ (proposed by members of the public).

All nominees would be put on a ‘long-list’, and would have to ‘demonstrate conspicuous merit and a willingness and capacity to make a contribution to the work of the House of Lords’.

The Commission would be bound by a set a parameters which it would have to keep in mind when considering appointments.  No less than a fifth (20%) of the House should be non-party (i.e. Crossbenchers), and no party or coalition of governing parties should have a majority, although the governing party should be entitled to a larger number than the official Opposition party.  However, that majority should be no larger than 3% of the total membership of the House.

There would also be a cap on membership – so it is no larger than the Commons.  Any member of the Lords on request, any peer could ask to go on a permanent leave of absence, which would in effect discount them from the House’s membership but allow them to retain their title.  Additionally any peer who did not attend a single day of a parliamentary session would be assumed to have taken permanent leave of absence. Any member sent to prison for more than year would also be ejected from the House.  Finally, the existing hereditary peers would not be renewed.

This Bill would allow us to retain the benefits of an appointed House while minimising as much as possible the flaws inherent in the present system which benefits the parties too much.  Of course, right now the Bill is unlikely to become law, for precisely that reason.  The parties would much rather enhance their control over the House of Lords by making it elected than actually improving the work of Parliament.

Eventually, I hope that this Bill, or another in a similar form, becomes law and stabilises the future of the House.  However the dialogue in Westminster right now is dominated by pro-electors.  In the country at large, the debate seems actually more intelligent and less gripped by ideology.  Such encouraging examples are the Intelligence Squared debate held on November 23, 2010, in which a majority were persuaded by the pro-appointment side, and the debate in the Lords by English schools on December 10, 2010.

Let’s hope the tide is, slowly, turning, and that it’s not too late to preserve the Lords.

Sources:

1) Meg Russell and Meghan Benton, Analysis of existing data on the breadth of expertise andexperience in the House of Lords: Report to the House of Lords Appointments Commission,Constitution Unit (March 2010), p 5.)

Electing the Lords: Conclusions

So, after seven chapters, I feel I’ve summarised the main issues which surround House of Lords reform.  I will now summarise my argument.

First and foremost it is important to emphasise that much of the debate about the future of the Upper House is back-to-front.  It should not be that the method of composition is decided and then expect it all to work out.  Instead, we should first deduce what functions we want the Upper House to perform, vis a vis the Lower House; from this, the method of appointment will follow.

The Upper House must complement the strengths and weaknesses of the Commons.  The elected Commons represents the political nation, and is therefore necessarily supreme; it must have the final say to preserve core accountability. The Upper House must enhance the work of the Lower House and provide a differing point of view.  However, election clearly brings its own shortfalls which preclude its necessity in the Upper House.

If the Upper House is not sufficiently independent and does not offer a long-term view of issues, and comprises the same political animals as the Commons, then it is not capable of doing its job of being a revising and improving chamber. The very purpose of the Upper House is, after all, to provide ‘sober second thought’, and if it replicates the Commons it becomes superfluous.

There are methods of electing the Upper House which would allow it to have a different outlook from the Lower House, but the conditions to achieve this do not exist in the United Kingdom. The primary means is to have the Upper House represent subnational entities (such as federal States), as in the US or Australia; this will make it likely to be different in electoral representation and, hopefully, political outlook.  While the UK has subnational entities, one of these (England) is so vast as to make any federal structure unstable. A federal Upper House in the UK would either be inherently unfair to England or end up replicating the Commons again. This also requires the existence of an English Parliament, which is very unlikely to happen.  Therefore the UK’s Upper House cannot become a Chamber of the States.

Back to the problems of election. Election is not, despite assumptions, meritocratic at all – it is, essentially, a popularity contest.  Being an MP requires a certain personality which lives and breathes politics.  The present crop of MPs, while talented and undoubtedly extremely hard-working for their constituents and the country, are also concerned with the interests of their party.  The Upper House must counteract this by having members who are outside (or at least, merely skirting) the political bubble and are skillful in a wide variety of areas.

Additionally, being an MP is not only a calling – it’s a living. This is necessary, really – not paying them leaves Parliament available only to those who are independently wealthy. However, this causes our MPs to rely on their positions for their income – they need to keep their seats at each election. This requires political party support, in the form of money (to sustain campaigning) and publicity (association with and membership of the party). These won’t be forthcoming if the MP defies his party too much.

MPs can and do dispute and restrain with their leadership over significant matters and collectively backbenchers are a formidable check on the government, but it remains the case that MPs often vote en masse and on party lines on matters of which they know or care little. This is inevitable – after all, most people vote based on national parties, with only a handful of MPs being elected based on their own character. But it is obviously frustrating to many people who would rather policy be evidence-based and not dependent on ideology. The Upper House should counteract this by providing an environment where legislators are less beholden to party patronage to the degree that it impacts their livelihood.

Appointment is the only method by which these points can be addressed – creating an effective chamber which supports the Commons and provides a genuine and reasoned alternative point of view. Appointment offers experts, still in their fields, who will not be tempted by party ambition or intimated by threats of losing the whip.  Peers will still subscribe to ideologies, but their primary source of income will be in working in fields where credibility and evidence are of overriding concern.  Appointment offers a long term view, by virtue of members being there for life. In short, it offsets all of the disadvantages of election while remaining a positive impact on parliament’s work. It is also quite cheap; an elected Upper House would be enormously more expensive, with nothing to show for it but satisfying the qualms of obsessives who take the wonderful principle of democracy too far.

Britain is and will remain one of the world’s greatest democracies with or without an appointed Upper House, but election threatens to undermine Parliament’s independence and place it further under the control of the Executive.  Election is by no means the norm in the world, and it is an acceptable thing to keep it unelected as long as ultimate power lies with the elected Commons.

Electing the Lords: Issues 7 – Voters and Legitimacy

My seventh post on electing the Lords addresses what constitutes legitimacy, and a little more on bicameral relations.

Many talking heads with half-baked notions of constitutional practicalities resort to the last refuge of the scoundrel – that, for example, election is the only acceptable form of legitimacy.  It’s a huge, gaping fallacy to presume so.  To paraphrase Sir Winston Churchill, those who argue this remind me of the man who, upon learning that ventilation is a wonderful thing, smashed every window in his house and got fever as a result.

The Commons, as the elected Chamber, rightfully has the final say over everything in Parliament – the existence of government, the budget, the passing of laws, ministerial careers, the maintenance of the Armed Forces, to name a few.  There is, clearly, no other conceivable way of holding the government to account on behalf of the people.  But the function of the Upper House is to support the Commons through detailed consideration of legislation and expertly conducted inquiries.  There is no other function it can have.  It does not follow that it should be elected.  As I have shown, it’s neither necessary nor desirable.

Moreover, election is not the sole form of legitimacy.  Donald Shell describes legitimacy as ‘primarily a quality afforded by others to an institution’, not an intrinsic quality magically conferred by election.  The Lords does have legitimacy, and plenty of it.

There are two kinds of legitimacy – output and input legitimacy.  The Commons has input legitimacy – it is legitimate because it is freely and fairly elected.  The Lords has output legitimacy.  As we have seen, the combination of independence, expertise, relative cheapness, ability to make long-term considerations, and its support of the Commons is seen by the public generally quite positively.  See Meg Russell’s 2007 analysis for more.

Two houses with equal legitimacy could end up fighting each other and not doing their job of holding the government to account.  We could well see much, much more of the filibustering and empty, time-consuming debate that dominated the final Lords stages of the Parliamentary Voting System and Constituencies Bill in January 2011.  As it stands, the two chambers of Parliament complement each other nicely; the Lords’ high quality debates, inquiries and consideration of Bills helps the Commons to manage its enormously heavy workload, while the Commons has the final say through being elected.  Electing the Lords could endanger this.

There is also the problem of turnout. Pairing elections for the Upper House with those for the Commons would mean people voting for one would likely vote for the other at the same time, but then we run the risk of creating an echo chamber.  Alternatively, separating the elections, in order to encourage a different political balance in the two chambers, would almost certainly mean that all but the most politically active would bother turning out for elections to the Senate.

The Commons is, and would remain, the principle chamber for exercising popular power, and turnout for it would always be higher.  Turnout  for the Senate’s elections would be abysmal, making it unrepresentative and quite unstable.  It wouldn’t surprise me if we got turnouts of 20%, like the European Parliament – which, paradoxically, is a relatively powerful but ignored chamber.  Equally, as we have seen, this would cost money.

‘Phased’ elections

The answer might be in ‘phased’ elections, in which a portion, say half or a third, is elected each time the Commons is elected.  But this leads into ‘voter fatigue’.  Turnout for the May 2010 General Election was 65%.  Throughout the world, lower turnouts are linked to constitutions with lots of elected institutions.

Vernon Bogdanor on the subject:

‘If the elected upper house had fewer powers than the House of Lords, or even perhaps if it had the same powers, there would be a danger that few would bother to vote in elections to it. This danger, which bedevils local authority and European Parliament elections, must be a very real one. Elections for the Mayorof London and the London Authority yielded, in 2000 and 2004, a turnout of just 34%, and in 2008 a turnout of 45%, even though the mayoral election attracted candidates with a high public profile; and the functions of local authorities are rather clearer than those of the new upper house would be. Elections to the upper house would, in addition, be unlikely to attract candidates with a high public profile; such people would probably still prefer to enter the Commons in the hope of becoming ministers.’

Turnouts tend to be higher for institutions which are seen to be more prestigious and more powerful.  In the US, Presidential elections on average pull turnouts of 55% or so; gubernatorial, House and Senate elections are substantially lower, such the 2006 US Senate election, where 29% voted.  Paul Vallely in the Independent highlights this himself:

‘And what of the electoral cycle? Mr Clegg is said to favour a Senate in which members sit for 15 years. A third would be elected every five years. Presuming those elections would be mid-way through the newly-fixed five-year Commons cycle, that would subject Westminster to periods of barely two years between elections, a paralysing process. But even if they coincided they would alter the political dynamic. At present the 1911 Parliament Act limits the blocking powers of the upper house on the ground that an unelected house should not prevail over an elected one. But if both houses were elected there would be no logic in opposing the repeal of the Act since both houses could claim equal legitimacy. That opens the way to the deadlock of the United States bicameral system.’

So which is it to be?  Either way bodes ill for the interests of Parliament.  Either the elected Senate would challenge the Commons for party political reasons, dividing accountability and preventing constructive and thoughtful scrutiny, or it will end up being an echo chamber.

Back to Article 6

Forward to the Conclusion

Sources:

Vernon Bogdanor, The New British Constitution (2009), p 171.

Elsewhere on the ‘Net: UCL Constitution Unit Newsletter Monitor 47

The Constitution Unit of University College, London, publishes a periodic short newsletter summarising major constitutional issues in the UK.  Their latest one is here.

This issue touches on:

• Government defeats in the Lords;
• The reckless (and unnecessary) speed of the government’s constitutional reform program;
• The progress of the Fixed Term Parliaments Bill and the PVS&C Bill;
• Difficulties with the European Union Bill;
• The new Cabinet Manual;
• Meg Russell’s proposed moratorium on Lords appointments;
• The run-up to the Welsh Devolution referendum;
• The Oldham East & Saddleworth by-election;
• Parliamentary Privilege;
• Constitutional issues in other devolved parts of the UK.

Feel free to read at your leisure, it’s fascinating!

Electing the Lords: Issues 6 – Cost and size

My sixth post on electing the Lords addresses an oft-overlooked matter: the size and cost of an elected Senate.

Members of the House of Commons are salaried, domiciled in offices, have access to expenses, and employ researchers, both in Westminster and in their constituencies.  The House of Commons cost £432 million in 2009-8 – almost £650,000 per MP.  This is an increase of £36 million from the previous financial year.

Meanwhile, the cost of the Lords went down in the same period – from £152.5 million in 2007-8 to £106.5 million.

After all, Lords do not get salaries. Nor do they receive expenses, beyond a daily attendance allowance. They employ researchers, but they tend to share their talents among groups of Lords. Likewise with accommodation – while MPs are entitled to their own office, Lords tend to share with three or four others. Nor do they get constituency allowances – they don’t have them, after all.  Additionally, the size of Lords committee staff tends to be considerably leaner than those for the Commons.

I’m going to do some maths here, so bear with me.

Let’s see what the cost to the taxpayer would be of electing the House of Lords.  The Work of the House of Lords 2007-8 gives us a helpful breakdown of the £212.5 million the Lords spent in the year, and 40% of it (£48.6 million) is related to members’ expenses, staffing and others – the remaining 60% on on-cash items, such as security and building maintenance.  I will now attempt to work out this 40% as it would likely be under an elected British Senate.

Assuming this is a similar proportion as spent in the Commons, then the Commons spent £154.9 million (40% of £387.2 million) on the same functions.

Dividing this by 659 (the number of MPs in the last Parliament) gives us £235,000 per MP. Let’s keep that figure in the back of our minds for the moment.

Considerations of how big the new Senate would be vary. The 2000 Wakeham Commission proposed a reformed House of 550 members, the 2001 White Paper 600 members, 2007, 540 members. So about three quarter of the House’s present size.

Senators would require the same perks as MPs: salaries, expenses, researchers, constituency offices, websites, and accommodation.  Assuming £235,000 would suffice as it does for MPs, then 540 (to take the lowest estimate) multiplied by £235,000 equals £126.9 million.

Now add back on the rest of the bill, the ‘non-cash items’ (i.e. Chamber maintenance), security, property costs and so on…that’s £126.9 million plus £72.9 million.  The grand total is £200 million.

Cheaper than the Commons, considering its slightly smaller size. But compared to the Lords, an increase of 60% of the cost.

And that’s assuming property costs will stay the same, which it won’t. Senators will demand the same perks as MPs, and that means their own constituency offices, researchers, and above all, those lovely offices in or near Parliament, plus expanded committee sizes.

The costs of elections, according to the 2008 White Paper, would be £43 million.  If a statutory appointments commission were also established, this would cost an extra £1.5 million. Let’s add those too.

The total is £244.5 million. That’s an increase on present costs of £138 million.

This at a time when the size and cost of the state apparently should be falling. Here we are ignoring a potential black hole for the public purse, planning to throw our money at a white elephant which will be a shadow of the chamber it will replace. It’d be the parliamentary equivalent of the Millennium Dome.

Of course, money should not come into any reckoning when the quality of democratic government is concerned.  But as we have seen, electing the Lords threatens to worsen the quality of government.  Is this cost worth it? I think not. Anthony King asks how exactly would the Senate improve our lives:

‘It is also not explained why it should be desirable to add significantly to Britain’s already large body of full-time, professional legislators: 650 at the moment in the House of Commons, 129 in the Scottish Parliament, 60 in the Welsh National Assembly and 108 in the Northern Ireland Assembly – an impressive total of 947.  Even with the proposed reduction in the size of the Commons, the creation of an elected upper chamber would almost certainly push that total to well over 1,000.  That would be a paradoxical outcome at a time when Britons are suspicious of party politics and politicians’.

I think this says it all.  We’ll get an inferior chamber for considerably greater expense.

Back to Article 5

Forward to Article 7

Sources:

A House for the Future, Royal Commission on the Reform of the House of Lords, Lord Wakeham Royal Commission, 2000

The House of Lords: Completing the Reform, HM Government, 7 November 2001

The House of Lords: Reform, HM Government, 2007

An Elected Second Chamber: Further reform of the House of Lords. HM Government, 2008

BBC News, ‘Cost of running Parliament falls’, 19th August 2009

House of Lords: Expenses Allowances and Costs, House of Lords Library, 20 November 2009

The Work of the House of Lords 2007-8, House of Lords 2009

Anthony King, ‘Rebuilding Britain: do voting changes mean we will be better governed?’ Daily Telegraph, May 18th 2010

Electing the Lords: Issues 5 – Representation

My fifth post on electing the Lords addresses representation.

The House of Commons is intended to represent the political nation of the United Kingdom.  This has been the source of its strength and the reason why it rightly has exclusive control over the life, death, and policies of the Government.

The House of Lords’ function, also previously stated, is to act as an independent house of expert second opinion. Its representative function, inasmuch as it has one, is to represent the UK’s civil society, distinct from that of the Commons’ popular representation.  The constituents of a peer are colleagues in his or her field of expertise.

On top of this, however, the Lords is also by chance representative of the country in party political balance, and a convention has arisen since 1999 that no single party will have a majority.  Even the Crossbenchers, who have no party allegiance, are similar in proportion to the non-voting UK population.  The House before 1999 was dominated by Conservative hereditary peers; after this, however, the parties by and large have the same proportion of peers as they had the proportion of the vote at the last general election.  Labour is currently the largest party, and the coalition is making new appointments to enlarge their parties post-election.

The result, then, is that no government can take the House of Lords for granted – not only will they have to persuade their own, independently-minded Lords, they will need to acquire the backing of at least some of the Crossbenchers and, normally, the Liberal Democrats, to carry the day.

In addition to this, indeed, the Lords is even more representative of the Commons in terms of both representation of women and in the representation of ethnic minorities.  While the numbers remains small, and the difference has begun to narrow, an appointed House would have a far easier time improving its representativeness in these fields than an elected House would.

A House of the States

This leads us to ask, what would an elected Upper House represent that the Commons cannot?  The typical example abroad is that upper houses represent some other facet of the nation – namely, territory, as opposed to population, which is the normal preserve of the lower house.  So, for example, the US Senate has two Senators per State, regardless of State geographical size or population number.  That’s fine – the US is a huge, sprawling federation of fifty States, none of which has an overriding influence on the Union – Texas or California by themselves alone override or influence the destinies of tiny Rhode Island or distant Hawaii.

This cannot be the case with Britain.  England is roughly 80% of the British Union, in terms of geography, population, and economic clout.  This will be a significant issue when I get round to writing on devolution, but for now, the geography/population factor is a real problem for a British Senate representing ‘States’.

If the British States got absolutely equal representation, then England gets a very rough deal, being under-represented by a an enormous factor.  A compromise could be possible – giving England more Senators to make it more accurate – but I can’t see any sweet spot in which England can be fairly represented without making it an echo chamber again, rather than an effective second chamber for the United Kingdom.

The other option is breaking down England into a number of representational chunks – say, East of England, Midlands, London, and so on – but there is such a low level of identity in England for these regional divisions, many of which have only come about since the early 1990s, that turnout would be low and the Senate’s credibility would be undermined.

Constituencies

Finally, what role would these Senators have with their constituencies?  Right now, MPs are the prime contact for constituents with Parliament, and it’s a mark of MP’s professionalism and dedication that they manage to deal with an average 70-hour week workday to accomodate it, as well as working into their recesses.  I doubt that Senators would be capable of relieving MPs of any of this enormous work – in fact, I can envision that workload intensifying.

Consider: Party A has constituencies in the Commons, and Party B has overlapping Senatorial constituencies.  In the eternal battle to win votes and make the opposition look bad, one of Party A’s MPs would work quite hard to serve their constituents and fight their battles, in the hope of securing their votes at the next election.  Meanwhile, the Senator of Party B who shares the constituency would do the same, similarly aiming to secure the voter’s vote for their party in the next election.  Instead of reducing workloads, the Senators and MPs will be duplicating their work, and attempting to sabotage the work of the other party.  The loser, ultimately, is the constituent, who neither knows nor cares which party ends up helping them out, and will probably stay at home come the election anyway.

In conclusion, the Lords already has its own kind of representative constituency, that of British civil society.  In so doing, it does not seek to undermine the Commons, ensuring the two Chambers remain complementary in functions and outlook.  The Lords is also indirectly representative in that a convention has arisen ensuring broad collation with the nation’s political attitudes at the last General Election.  Moreover, election would threaten all of these benefits, without providing the Upper House with a representative basis that does not threaten the primacy of the Commons or give the chamber credibility.

Back to Article 4

Forward to Article 6

Electing the Lords: Issues 4 – Independence

My fourth post on Lords election discusses the impact election would have on the independence of members of the Upper House.

Let’s start by looking at the most convenient example of the functioning of an elected chamber – the House of Commons. One of the frequent criticisms of Members of Parliament (MPs) is that they are apparently slaves to their party leadership.  The criticisms are a little overdone, as party discipline is part and parcel of what we expect of MPs if we elect them to support their party’s legislative programme. But there is a rub; MPs can and are coerced into voting against their personal misgivings in favour of legislation they may not fully understand or support.

Why does this happen? Simple: MPs are salaried and have access to expenses.  For MPs, these are more than just recompense for the good services they provide to the country – they are their livelihood (as they should be!  Otherwise only the wealthy would stand for election).  Therefore, MPs are dependent upon re-election not only to realise their careers and ambitions, but to essentially keep their jobs. MPs keep their jobs, by and large, with the funding and marketing skills of their political party.

And in this we see the power of the Whips.  MPs can be (more frequently) instructed, encouraged, persuaded, and (less frequently)threatened to obey their party leadership in votes and debates in the House.  Their very careers and aspirations to high office can turn on the grace and favour of the party leadership.  In return, the MPs retain the ‘whip’, which is the support of the party both in providing information, granting access to senior party leaders, getting ministerial careers or committee positions and, ultimately, in standing for re-election when Parliament is dissolved.

Party patronage is unavoidably all-important in electoral success; the low number of independent MPs in the Commons is testament to this. Why should an elected Upper House be any different?

The House of Lords, however, is a little different. The government can and does get opposed and challenged – definitely far more often than in the Commons. Unlike five-year MPs, peerages are for life.  A peer cannot be removed from the House unless by Act of Parliament (the last case being in 1917).

Whips do exist in the Lords, of course, and voting patterns there show that peers do tend to vote, on the whole, with their party – but as Lord Norton shows(1), this is attributable to a kind of tribal agreement with their party’s position:

“Peers are able to operate free of the constraints on and incentives available to the party leadership, activists and voters in other countries.  There are no institutional, or behavioural, explanations for this cohesion.  Members enter the House predisposed to vote for their party and they do so.  Because the government enjoys no majority in the House, it is vulnerable to defeat.  It therefore has to work hard to carry the House with it.  What this entails is not necessarily persuading members individually of the value of their case but rather persuading the parties in the House; members will follow the cues of their party leaders.  The whips serve to facilitate cohesion but are not the cause of it.”

So it’s no surprise, for example, if Labour peers vote for left-wing policies, and so on.  They wouldn’t be Labour peers if they didn’t agree with it.  Emma Crewe in her book Lords of Parliament(2) argues that much of it comes down to the Lords whips exploiting human needs for social belonging and the desire not to be an outsider – but this requires tact and sophistication, and not a little compromise.  Lords whips need to be courteous and not take their compatriots for granted; Commons whips are feared and notoriously ruthless for using every trick in the book.

There are cries that, as they cannot easily be removed, this means Lords are unaccountable. But the Government’s most recent White Papers have proposed to shore up independence by giving Senators single, long terms. Essentially, we’re getting the exact same thing as the present, but an immovable body of careerist politicians instead of dedicated experts.

Nonetheless, the power of the whips in the Lords is substantially less than the Commons. Meg Russell says there are relatively few consequences when Lords rebel, unlike those for MPs (3):

“Lords whips are limited to argument and encouragement to get Lords to vote their way. They can offer ministerial positions, but the fact is that for most peers, that won’t work, either – they’re on the whole past the prime of their careers and won’t be interested in the hassle of a poorly paid ministerial job, particularly as it would clash with their own non-parliamentary careers. They can withdraw the party whip, but for most Lords this would be more an inconvenience than a mark of shame (unlike in the Commons). They can’t threaten them with the denial of party support, as they are appointed for life. In short, there’s nothing a whip can do to force a Lord to vote against their conscience. They can only use persuasive argument.”

This gives the Lords one of its best qualities – that when it disagrees with the Commons, on both big and little issues, it will most likely be not on cheap political points-scoring, but on a constructive basis to highlight and address real problems that matter.

This would disappear in an elected House, in obvious ways.  Paul Vallely in the Independent explains:

“It [appointment]…brings free-thinking and independence of mind which do not characterise the whipped party political process.  Because of their age, in most peers ambition has been replaced by wisdom, which is why many of them are content to speak and vote only when their particular expertise is required.  Their lifelong tenure ensures their independence.  They are beholden to no party or lobby but conscience and common sense.  Not all fit such a description – some are there only because they have funded a political party or played tennis with a prime minister – but the description holds good of enough of them.”

The other thing to worry about is the existence of the Crossbenchers, that third of the House which have no political label and are subject to no whipping whatsoever. Crossbenchers elect a Convenor who informs them of upcoming votes and debates, but beyond that, their vote is up to them and based on their personal opinion. In a fully elected House, they would disappear.

Meg Russell and Maria Sciara in 2009 also add that Crossbenchers have been crucial in defusing major cross-party disagreements, describing them as something like ‘a jury to whom the politicians in the chamber appeal’.  In essence, because they hold the balance of power, Crossbenchers help to further mitigate the relatively nonpartisan nature of the Lords.

The Crossbenchers used to be dismissed by and large as ‘Tories in disguise’, but since 1999 more and more peers from varied backgrounds, in particular from the voluntary sector, have taken their places among the Crossbenchers.  Russell and Sciara feel that election would undermine their effectiveness (4):

“At the normative level, policy makers in the UK have generally agreed that maintenance of a large number of Crossbenchers is desirable. But this presents genuine policy problems. One requires accepting that some members will remain unelected, as an electoral system delivering high levels of independent representation is unlikely to be found. But even if this is accepted, it is a challenge to find members who will attend parliament regularly without the pressure and the support provided by a party whip.”

And this is the contradiction that those who consider an 80% elected House would be acceptable have to resolve: if appointment is such an evil in today’s world, in which election is about as trendy as jeans and t-shirts, why is a 20% appointed House permissible?  Is it somehow 80% more legitimate than the existing Lords?  My opinion is either we have a completely appointed Senate or a completely elected one; a partly elected House makes a mockery of the argument that election is an inherent good.

It should be clear, therefore, that in the parliamentary system independence of elected representatives is difficult to compromise with the national mandate of the parties to enforce their political manifesto, putting MPs into conflict.  Lords are also subject to this conflict.  But there’s a significant difference between the two; while MPs must answer for their votes and speeches to their constituents for their jobs, but also to party managers for their careers.  Lords answer to their fields of expertise for their speeches and votes, but cannot easily be browbeaten by party managers, apart from by appealing to ideological loyalties.  As can be seen, electing the Upper House would replicate the Commons system, and could threaten the existence and effectiveness of the Crossbenchers.

Back to Article 3

Forward to Article 5

Sources:

1) Philip Norton, ‘Cohesion without Discipline: Party Voting in the House of Lords’, Journal of Legislative Studies (2003), vol 9, no 4

2) Emma Crewe, Lords of Parliament: Manners, Rituals and Politics (2005), p 130–60

3) Paul Vallely, ‘The Lords is not perfect, but it works’, The Independent, May 23rd 2010

4) Meg Russell and Maria Sciara, ‘Independent Parliamentarians En Masse: The Changing Nature and Role of the ‘Crossbenchers’in the House of Lords’, Parliamentary Affairs (2009), vol 62, no 1,p 44.

Electing the Lords: Issues 3 – Expertise

The third issue surrounding election of the Upper House is to do with the House’s reputation for expertise.

The Commons relies on the Lords immensely to help it do its work. Often, the Commons’ schedule is so packed that Bills arrive in the Lords from the Commons virtually untouched and huge reams of complicated legislation is overlooked and unscrutinised.

In recent years the Lords has produced on average 4-5,000 amendments to legislation per year.  The Commons (and, by extension, the government) accept on average 40% of these amendments, and paradoxically, the majority of the amendments that are accepted are the most important and substantive changes. This is because the Government generally accepts that the Lords know what they are talking about.

The present House encompasses peers from a wide range of fields in British life.  Edward Pearce explains why election cannot replicate this (1):

‘In any election for the Upper house, candidates will be chosen and promoted by party machines and voted for essentially by supporters of parties.  It will palely reproduce the current Commons model…The virtues of a good second chamber are those of intelligent contradiction, of debate continued beyond the lines of party militias.  It requires bright, specialist knowledge in all the key fields of life and work.  The life peer system has done this and not done it at all badly. The present House of Lords breaks every rule of the pluralist handbook, yet it passes the test of troubling the executive.

‘A great and expanding flaw in modern politicians is that they are precisely, often exclusively that – politicians.  They have begun early at university, in party clubs, have worked in the outer office of a Minister, at party headquarters or at the elbow of an MP.  They have never tied an artery, sat up with a company’s books, sold a bond or plastered a wall.  In an elected House, yet more politicians – hermetically professional, probably inferior – will fill the spaces required.’

And in May 2010, Paul Vallely of the Independent agreed (2):

‘The modern peerage is made up of a huge range of expertise: scientists and surgeons, lawyers and landowners, businessmen and bishops, novelists and nurses, spies and former diplomats.  Their title is a recognition of excellence or eminence in their field…it offers considerable real life experience to counter the myopia of professional politicians.

‘What would an elected second chamber be like?  It is no use saying that existing Lords’ members could stand for election; most wouldn’t.  They are past the time in life where they need to be endorsed or seen to achieve.  They would retire to their books, telescopes and gardens.  Their replacements would be career politicians, probably second-rank ones at that – young politicos en route to the Commons, superannuated local council cronies, and representatives of each party’s grateful dead.  It would be a place of seedy deals and the low politics of party whips.  That is a notion attractive only to party managers who would breathe a sigh of relief at an upper house that would not rock the leadership’s boat.  The chamber which is supposed to be the final check on executive power would now be firmly within its control.’

I’ve never heard a single convincing explanation of how an elected senate would be of higher quality than the existing members of the House of Lords, nor how the UK would somehow would be better governed than it is now.

And Donald Shell, an accomplished constitutional expert, has also weighed in (3):

‘A healthy democracy needs informed debate at its centre…Both chambers might do this, but the populism involved in competitive party politics inhibits the extent to which informed opinion can be the driver of debate in the Commons.  A second chamber with expertise and experience of a more varied kind can help to serve the public in a different way.’

Of course, there will inevitably be gaps in the Lords’ expertise, particular on matters relating to their own constituencies and on social policy. But remember what has been said about the complementarity of the two chambers of Parliament at present. MPs are also very good generalists, jacks of all trades, masters of none, meaning they can plug these gaps with their capabilities. An elected Senate would undo this – instead of aiding the Commons, it would replicate the same fields, weakening the abilities of both.

Going back to the fact that the Lords has a high success rate in changing Bills (in part 1) – does this challenge the right of the elected Commons to decide the law? Not at all.

Despite the huge level of changes they make, the Lords very rarely seeks to amend Bills in such a way that it would destroy the principle intentions of a Bill ( what would be called ‘wrecking amendments’).  As I said, the Lords understand their role to be complementary to the Commons, the elected Chamber, and leaves such matters to the Commons. Policy is decided by the Commons – the Lords job is to make that policy workable. At times, the Lords will see the policy in its entirety as unworkable – and if the Commons resolves to disagree, that’s what the Parliament Act is for.

The Lords’ expertise has brought itself to bear time and again in informing the work of Parliament and the Government in its deliberations.  For example, the House of Lords Science and Technology Committee has a worldwide reputation for the excellent reports it produces for Parliament.  The Lords European Union Select Committee is a vast, efficient machine, giving the British Parliament the reputation of being one of the best scrutinisers of European legislation in the whole EU. On many occasions, the government has submitted Bills to the House of Lords before the Commons with the express purpose of themselves putting their eyes over the details before going to the Commons.  Emma Crewe, in her excellent anthropological study of the House of Lords, explained how European Commissioners were normally provided with three key documents to inform them of important matters when starting out – and two of these documents were provided by the Lords Science and Technology Committee.

In fact, the Lords’ committee system itself serves to complement the Commons. Unlike the Commons, the committees are deliberately non-departmental, and instead seek to plug the gaps in between departmental remits: Communications (which deals with press, television, radio and the Internet), the European Union, Science and Technology, Regulatory Reform, Economic Affairs, and the Constitution committees all conduct brilliant work which are invaluable to the Commons and to the wider world.

I have heard the argument that specialist expertise, such as that which the Lords boasts, is irrelevant to the worth of an Upper House. The argument is that such experts should get elected if they want to do so, or that they can do the same through giving evidence to parliamentary committees. But then, British parliamentary committees do not have the power to compel the government to do anything, and their ability to bring issues to the attention of the public in a meaningful way is dependent upon the sensitivity of the subject matter. The influence of committees on the government is difficult to quantify, and it is most often the floor of the Chamber in which members make a difference. If we removed our Lordly experts, their influence on legislation and policy would be eroded, weakening the ability of Parliament to give informed and reasoned assessments of national policy.

Back to Article 2

Forward to Article 4

Sources:

1 – Edward Pearce, ‘An Elected Upper House and Other Fallacies’, Political Quarterly (October– December 2009), vol 80, no 4

2 – Paul Vallely, ‘The Lords is not perfect, but it works’ The Independent, 23 May 2010

3- Donald Shell, The House of Lords (2007), pp 166–7

Electing the Lords: Issues 2 – Upper Houses throughout the world

An awful lot of people (including the Deputy Prime Minister, it seems) hold at least three misapprehensions about the House of Lords when compared internationally; namely:

1. that elected chambers are the norm abroad,
2. that the principle of appointment is a minority phenomenon, and
3. that election of the Upper House is the best way to provide effective scrutiny of the executive.

Each of these is incorrect.

The truth is that election is no more common than appointment.  The most common method is in fact a combination of the two, or even indirect election.  Election, to be effective, depends heavily on its constitutional context.

An international comparison can show us under what circumstances elected chambers work well; and those is is less appropriate.  I shall attempt to do this now.

Countries with directly elected upper houses

• United States
• Australia
• Italy
• Poland
• Czech Republic
• Japan

Countries with indirectly elected upper houses

• France
• Netherlands
• South Africa
• India
• Russia

Countries with unelected upper houses

• United Kingdom
• Canada
• Ireland
• Germany

Countries with a mixed-composition upper houses

• Spain
• Belgium
• Mexico

A cursory glance at these lists demonstrate that while election is a plurality, it is by no means the most common.  If we also take into consideration the constitutional basis of each of these states, we can glean some more information on whether the elected upper houses actually work.

So, let’s look at the ‘elected’ list again.  Of those six, two of them, Australia and the United States, have Senates which are well known for being very independent of the Executive.  In other words, to borrow the phrase, they are congruent.  This is because both of these countries are federal, and their Senates are used to represent their constituent States and Territories.  Their Senates, therefore, provide an alternate and credible form of popular legitimacy.

The remaining four countries are unitary and parliamentary states.  The problem here, as I have described previously, is that there is no real, credible alternative form of popular representation from that which already exists in the Lower House.

We can see the effect this has on bicameral relations by consulting Gianfranco Pasquino, Professor of Political Science at the University of Bologna and a former Italian Senator.  He shows that it’s incredibly rare for the elected Italian Senate to disagree with the Lower House:

“In theory and in the Constitution, the Italian upper house is as powerful as the lower house. As has already been stressed, the two chambers perform the same tasks and, when dealing with the government, they have the same weapon: the vote of no-confidence. Therefore, in order to survive and to secure the passage of its legislation, any government must be equally preoccupied with its relationship with both chambers. In practice, however, the upper house is unanimously considered to have and to exercise less power than the lower house. The fundamental reason is political or, more precisely, has to do with a specific party phenomenon. Since the inception of the Italian Republic all the secretaries of all Italian parties have been elected to the House of Deputies, with one exception.

When the new democratic republican Constitution had to be drafted in the period between June 1946 and December 1947 only the Communists formulated strong objections to retaining a bicameral Parliament. Those who wanted the Senate to remain but be democratically transformed – that is, elected by the voters – argued their case with reference to two potential advantages: First, an upper house would play the role of a moderating element, partly because of its composition of older men. Second, an upper house could serve as a cooling-off chamber where the bills were scrutinized under less pressure than in the lower house. None of this ever proved true in the experience of the Italian republic, but institutional inertia has so far prevented any change. Indeed, the only constitutional change that has so far been approved has led to the shortening of the tenure of the Senate that initially had been fixed at six years. Following three simultaneous dissolutions of the two chambers, justified by the imperative of preventing the appearance of two different parliamentary majorities, it was decided that, starting with the 1963 elections, terms of office for the Senate would last five years – exactly as for the House. For almost 20 years there has been no additional proposal for change affecting the Senate directly or exclusively.”

So; not only were predictions about the impact of election dead wrong, but then reformers made it worse by shortening the Senatorial term.  Wonderful!

I am unable to find any specific information about the other countries, but as they are all unitary parliamentary states, like Italy, I would not be surprised if the situation was replicated.  Japan’s Upper House phases its elections (half every 6 years), but what few sources on Japan I have gleaned seem to indicate that Japanese politics has a peculiarly high degree of party factionalism, meaning that both chambers are unusually difficult for a government to whip.

So to go back to my presumptions above; election is by no means the norm.  It is slightly (slightly) more common than unelected upper houses, but even where it is applied, the success of the measure is mixed and heavily dependent on constitutional context.  Elsewhere, countries tend to opt either for indirect election, non-election, or a blend of two or all three.

I hope that this kills once and for all the myth that Britain is archaic for having an unelected upper house.

Back to Article 1

Forward to Article 3

Notes

Pasquino, Gianfranco (2002), Journal of Legislative Studies, Vol 8 (3), p.67-78

Electing the Lords: Issues 1 – Powers and Purpose

My first post on electing the Lords arguably asks possibly the most important question: what do we want this supposed Senate to do? The overwhelming consensus is that the current dynamic between the two Houses of Parliament, in which the Commons is constitutionally supreme, and the Lords serves to support it with expertise and a long-term view, is both productive and desirable.  Election, in my opinion, would undermine this and take the British constitution into unknown and adversarial territory, in which the only winner can be the government.

What makes a second chamber effective?

1. Congruency and Incongruency: Tsebelis’ model

George Tsebelis, Professor of Political Science at the University of Michigan, has developed a theory on the impact of upper houses in political systems, differentiating between ‘congruent’ and ‘incongruent’ bicameralism.

Basically, congruency means coinciding, or matching; in this case, with the composition of the lower house.  A congruent upper house, even if it is constitutional powerful, is likely to agree with the lower house almost all the time, as it will match the lower house’s political makeup.  It will be echo chamber.  On the other hand, an incongruent chamber (that is, one composed differently from the lower house), is more likely to express differing points of view, as it will more likely have different types of membership and/or political makeup.

There are plenty of examples of how this works in the world.  Tsebelis gave some examples of congruent upper houses himself – the former upper houses of Sweden and Denmark.  These two chambers were made fully elected in the early 20th Century until they became pretty much valueless to policy formulation, as the replicated the lower house.  Denmark and Sweden lost little when they abolished them.  Italy’s own Senate today has a similar problem.

Elected and incongruent upper houses do exist, though: for example, the Australian Senate is elected in a very different way from the lower house and also elected via different constituencies, ensuring by and large a different majority from the lower house.  The United States Senate is also incongruent: although it shares the same voting system as the House of Representatives, but has different constituencies (the States), and neither House is as beholden to the executive as in parliamentary systems anyway.

Let’s apply George Tsebelis’ distinction of second chambers, and start with a congruent Senate – one in which the government has a majority in both Houses.  The Senate would remain silent and become an ‘echo chamber’ to the Commons – and people already complain about the relative toothlessness of the Lower House.  The result, then, as A W Bradley and K D Ewing (1) say, is that we could end up with a House wholly dominated by the political parties and, depending on election results, with the same party in control of both Houses.  In that case, there would be little prospect of effective scrutiny or revision of government business.  If there was a majority different from that of the Commons, the result may be stalemate, with both Houses claiming superior legitimacy.  This is the most likely outcome, and therefore rendering our Parliament weaker.  Incongruency tends to come with a different basis of representation from the other house, something which isn’t really being discussed by the present government, or the previous one.  There are other problems, too.

2. Core Accountability

Precious little thought appears to have been given to what relationship an elected House would have with the House of Commons.  A central principle of the British constitution is core accountability – as summarised by Lord Norton on his blog: (2)

“There is one elected chamber, through which the government is elected and through which it is accountable to the electors.  We have the benefit of a second chamber but without the divided accountability that would derive from having an elected second chamber.  The House of Lords adds value to the political process by carrying out tasks that complement those of the elected chamber.  It does not seek to challenge the electoral supremacy of the House of Commons.  It can invite the Commons to think again, but ultimately the Commons is entitled to get its way…there would be no reason why elected members of the second chamber would see the role of the chamber as a complementary one.  There would be the potential for conflict between the two.  This could lead to stalemate or more often to deals being struck.  Such deals would more likely be to the benefit of parties and special interests than to the benefit of electors.  There would be no clear line of accountability for what emerged, or, indeed, what failed to emerge.”

The British constitution is a balancing act, in this case, that of balancing the supremacy of the Commons against the support of the Lords.  This has been a key strength of the British constitution for centuries, and is echoed by such constitutional experts.

The Government agreed that the current conventions were the most desirable in their 2007 White Paper,(3) Jack Straw, Leader of the House, said:

“if this were to happen it would undermine the role of the House of Lords, and lead to the loss of much of what is valuable and successful to the current House.  Crucially, it would start to erode a vital facet of the successful operation of the House of Lords – that it can invite a Government to reconsider its specific proposals without calling into question its authority to govern…Although the primacy of the Commons is historically derived from its elected mandate, primacy no longer rests solely on this fact.  Primacy is made real by the different functions exercised by the two Houses, and their different roles.“

One elected and one appointed chamber has made parliament very effective, with both chambers feeding off each other’s strengths and offsetting each other’s drawbacks (the drawbacks being detailed further on in this series of articles).  But two elected chambers would stop them from cooperating against the executive and would instead turn on each other.  This would only be to the benefit of the government.

Both chambers, being elected, would have theoretically equal claims to represent the people, and they would have in fact similar composition as elected professional politicians (on the whole) – but more on that later.

Because of this, core accountability in the Westminster system would be lost.  The impact would be that good laws would be twisted and mangled by an opportunist Opposition, and bad laws would fall through the net as most for most legislation, the devil is in the detail.  We see this all the time in the United States Congress.  With co-equal electoral legitimacies, the Commons would be less justified in calling in the Parliament Act to override the Senate when it disagrees; the result would be compromises and bargains, and from all this, the government could deny all responsibility as it was forced to accept the changes thanks to the interference of the Opposition in both Houses.  The end result would be that the public would be less able to hold the government to account.

Developments since 1999

We have seen a hint of what could be to come in the past decade.  Since 1999, with the removal of most of the hereditary peers and a permanently ‘hung’ Lords chamber, the balance of power between the two Houses has altered as the Lords has renewed vigour and a sense of legitimacy within and without, boosting its confidence in challenging the government.  We can see this in how the Salisbury Convention – in which the Lords would not oppose legislation which the government promised to introduce in a manifesto – has begun to decline, with the Liberal Democrats no longer recognising it when in opposition.

So far this increase in activity has not been at the expense of the Commons, as the Lords recognises itself as an inferior, complementary House, whose purpose is to support the elected Chamber’s work in scrutinising the government and legislation.  Indeed the two Houses have developed new ways to cooperate since 1999.  The presence of a more active and independent Lords has encouraged backbench MPs in the Commons to extract more concessions from the government, because while they can more or less ride roughshod over the whipped Commons, they cannot do the same with the Lords.  More on independence later.

The Joint Committee on House of Lords reform(4) indicated the Salisbury convention would be endangered by election:

“the continuing operation of the existing conventions in any new constitutional arrangement will be vital in avoiding deadlock between the Houses – which could all too easily become an obstacle to continuing good governance.”

It has been suggested also that the best way to prevent such damaging clashes between the two Houses would be to codify the conventions that govern the relationship between the two Houses, such as the Salisbury Convention and the Lords’ power over Statutory Instruments, and parliamentary ping-pong.  But the 2006 Joint Select Committee on Conventions(5) concluded that this would be difficult and undesirable.

Conclusion

The obvious danger then, is that electing the Lords would not only make the Upper House more powerful (on the face of it, a good thing), but would in fact throw the balance of power between the Houses of Parliament way off kilter and spark at least a generation of energy-consuming constitutional crises.  This is clearly not a good thing. Meg Russell and Maria Sciara, Senior Research Fellows at University College London’s Constitution Unit, writing in 2007 (6), summarised it well when they said that a compromise that democratises the Lords without making it stronger is ‘both logistically and tactically impossible’.

A Senate would not enhance the capability of Parliament to scrutinise the executive.  Rather, depending on the congruence of the two chambers with each other as mentioned, the Senate would at times agree with everything the Commons says, and at other times weaken Parliament’s ability to hold the executive to account by escalating infighting between the two Houses.  More likely there will be a combination of the two scenarios.

Given this, and that the current arrangement ensures one chamber through which the government is accountable, changing the composition of the Lords would reduce the value of the second chamber altogether.  The consensus both inside parliament and among the world of learned constitutional scholars is that the present Lords, when it disagrees with the Commons (which it does often), is far more likely to disagree on principled, constructive matters, based on expertly attained knowledge, without at the same time being overly obstructive to the broad principles of a government Bill.  Some would consider such an arrangement to be poor, as they consider the best way to measure the effectiveness of a legislature to be how often it kills a bill stone dead – wrong; that’s sabotage.

Put simply, the composition of the Upper House should be closely tied to its functions.  I’ll restate the question: what do we want the Upper House to do? If, as people say, they want the House to continue doing what it does so well now (and they have – check this out), then election not the answer.

Back to Article 0

Forward to Article 2

Sources:

1 – Ministry of Justice, An Elected Second Chamber: Further Reform of the House of Lords (July 2008)

2 – A W Bradley and K D Ewing, Constitutional and Administrative Law (2007), p 186.

3 – http://nortonview.wordpress.com/2010/05/22/no-to-pr-and-an-elected-second-chamber/

4– Leader of the House of Commons, The House of Lords: Reform (February 2007), Cm 7027, p 20.

5– Joint Committee on House of Lords Reform, House of Lords Reform: First Report (December 2002) HL Paper 17, HC 171, paras 11 and 12.

6– Joint Committee on Conventions, Conventions of the UK Parliament (November 2006), HC 265, HL Paper 1212, p 76.

7– Meg Russell and Maria Sciara, The House of Lords in 2006: Negotiating a Stronger Second Chamber, The Constitution Unit (January 2007), p 11.

8–  Meg Russell, ‘Views from Peers, MPs and the Public on the Legitimacy and Powers of the House of Lords’