Students on the final year Critical Issues in Contemporary Politics module were this year asked to produce blog posts as part of their assessment. The students were asked to write academically rigorous but easily comprehensible posts on current contemporary political issues of interest to them. Three of the best were selected for publication on this blog and will be published over the next three days. They cover topics from Reform of the House of Lords (Jack Williams), the Fallout from the Scottish Independence Referendum (Andrew Miller) and Fracking in the UK (Charlie Povah). Here is the first in this series from Jack Williams on House of Lords Reform.
Unelected, unrepresentative and undemocratic? What does the contemporary House of Lords actually look like?
By Jack Williams, 3rd year Politics Student
Unelected, unrepresentative and undemocratic, a traditional view of the House of Lords (HoL) that no longer reflects the true nature of the institution but still drives the calls for its reform. In the last 100 years the Lords has seen many Parliamentary attempts to reform it, some successful, some not. The latest in 2012 was thankfully withdrawn but debate about the structure of the House still rumbles on. This blog sets out how the HoL has changed from its outdated perception and developed into a relevant and necessary institution in contemporary British politics, albeit still with room for improvement.
The 1999 House of Lords Act was the latest successful attempt at reforming the HoL; along with its 1958 predecessor it dramatically altered the make-up and subsequently the powers of the House. The Act removed many of the Hereditary peers leaving the House with a majority of appointed Life Peers. This change to membership means that we are left with a more effective body. Why? Because many of those appointed peers are selected for their expertise in a range of different areas, be it Diplomacy, Business, Media, Parliament itself or many others. Examples include; Baroness Ashton, Labour peer and former EU High Representative; Lord Norton, a Conservative peer and constitutional expert; Lord Ashdown, Lib Dem peer and UN High Representative and Lord Birt, a crossbench peer and former Director-General of the BBC. This range of expertise helps to scrutinise and develop legislation from an informed perspective on a vast range of legislation without the majority partisan agenda that the fully elected House of Commons is often dogged by. Conservative Peer Lord Dobbs[i] puts this best when he says: “the Lords isn’t a proper second chamber, it’s more like an advisory body, a council of elders with powers that go no further than asking the Commons to think again. It often acts as a great composting machine – rubbish in, rather more fertile and fragrant stuff out”.
Yes a certain proportion are political appointees, but once in the HoL such members have much more flexibility than their colleagues in the Commons – no threat of losing party backing or damaging their career prospects, should they oppose party lines. In addition to this many Lords actually choose to be independent of a party, instead sitting in the ‘Crossbench’ grouping. Changing the Lords to an elected body, even an 80% elected one (as was recently proposed), would mean increased subservience to the political parties, and the HoL would be filled with politicians with political agendas and reduced expertise. As many members in the HoL are not political operators, gaining party backing or winning elections isn’t a factor therefore the independent, informed, non-partisan, scrutiny role offered by these members could be impaired by having electable candidates.
Further to this, polls[ii] have shown, the HoL members are actually held in higher regard than their colleagues in the Commons, electing them could just lose their credibility as well as their effectiveness.
Prevents the Tyranny of the Commons
Public polling[iii] in 2012 showed that 76% of people were in favour of the HoL being elected in some form; this could actually result in the undesired consequence of an unrestricted executive. While the common consensus is that ‘elected equals democratic’, there is a long established argument that keeping a part of government separate from the electorate is actually an essential part of democracy. In our case, this means that, curiously, the unelected nature of the HoL can actually aid the democratic principles of the British political process. You may well ask how? Well, the idea of the ‘Tyranny of the Majority’ is that minorities/minority viewpoints will always be outvoted in a majority rule society. To enable such a society to be truly representative and protective of minority positions, there has to be a means for them to be protected from the majority by governmental institutions. Various apparatus exist in other countries to address this; Constitutions, Bill of Rights and Separation of Powers etc, however the UK has none of these. In the UK, government is made up of the party/parties that hold the majority of MPs in the Commons. As the Commons is the main chamber that deliberates and approves Government bills and MPs are often reluctant to vote against their own party, with the exception of backbench revolt or times of minority rule, the Government often gets its way. Yes, the European Convention on Human Rights guarantees certain rights in theory but, being the ultimate sovereign power in the UK, Parliament can vote to adapt this to its own wants, as recently suggested by Justice Secretary Chris Grayling[iv], so the Convention gives little real protection from Government. Sir John Baker addresses this ‘tyranny’ in his blog[v] where he calls for the safeguarding of the Lords’ independence, in it he quotes Lord Simon from 1993; “The House of Lords has become effectively the only place in which the legislature can curb the power of the executive.”[vi] With this in mind, only a non-elected authority from within Parliament, being the HoL separated from the electorate and beyond its demands, can protect us from the Tyranny of the Majority, in our case Government drawn from the House of Commons – without the Lords would we end up with a Tyranny of the Commons?
Effective restrictive power
It should be noted how effective the HoL is at restricting, not blocking, Commons/Government legislation and how this is as much power as we should grant a secondary chamber. Since the 1911 HOL Reform Act the Commons have been able to overrule the HoL on Bills after a one year period, this confirmed the supremacy of the Commons in Parliament and is often interpreted as proof that the HoL is nothing more than a talking shop. However, the HoL can and frequently does defeat government legislation, (Only last week was the government defeated by the HoL over judicial review curbs.)[vii] yet have only been overruled four times since the 1911 Act. The 1999 Lords’ reform saw an increase in legitimacy for the House, which in turn led to an increased willingness to act. As Meg Russell points out, “Because the government has no majority in the Lords, and peers now feel more confident and legitimate, they are both more willing and able to challenge government policy.”[viii] She also argues[ix] that the HoL has a psychological effect on governments, who seek to avoid the embarrassment and publicity of HoL defeat by thinking through any aspects of a bill the HoL may oppose. The ability to make Government and the Commons think again is an important tool for the HoL to ensure legislation passed is well structured, legal, has been well thought through and meets the need it was created for. As the HoL is beyond the scrutiny of the electorate it is freer to scrutinise bills on their merits, not their political sway. The luxury of not being elected means the HoL can withstand political and public pressure while applying or waiting for potential changes.
Potential power struggle
As previously mentioned the Commons has supremacy over the HoL with powers to push Bills through using the Parliament Act, a suitable power for an elected body to have over an unelected one. Using the HoL increased legitimacy and willingness after the 1999 Act as a precedent, the mandate from electing the HoL would certainly result in increased legitimacy/willingness and inevitably an increase in power. The HoL would not only be able to challenge Government, but also block and guide it. Rowena Davis[x] argues that giving more legitimacy through elections would lead to more dispersed powers and subsequently governmental paralysis, often observed in the US.
While HoL reform is seemingly inevitable and perhaps useful in some aspects, it needs to be well thought through, utilising the best features of the current House while maintaining its weaker position in Parliament. Electing the Lords is not the way to this. What should happen to the Lords? Different independent selection panels to appoint experts in their fields to keep the ‘council of elders’ theme, diversifying the religious representatives to recognise the religious change in the UK and maintaining the HoL ability to resist, but not block the Commons. Being beyond direct public accountability may seem like a indigestible concept but the Commons acts as our representative chamber, we don’t need the Lords to do the same so we can allow it the freedom to offer something different but equally useful to the political process. Allow the Commons to be elected, representative and democratic, allow the Lords to hold them to account.