BROWN PAPER: Labour's idea for House of Lords reform
A quick initial reaction to Labour's "Commission on the UK's Future"'s suggestions for reforming the House of Lords
Introduction
Yesterday, Labour published the grandly titled A New Britain: Renewing our democracy and rebuilding our economy. Report of the Commission on the UK's Future setting out various proposals it intends to consult on and potentially implement if it forms the next government after a general election. The document is about 150 pages long and I am still reading through it - don’t worry, I’m not planning on opining on the whole thing - but I have had a request for my thoughts on the proposed reforms to the House of Lords.
The proposals
The first thing to say is that the proposals smack of deciding something must be done and then finding a way to do something.
The gallery will be impressed
One of the interesting things I noticed is the early play to the gallery:
The House of Lords in its present form is indefensible in principle. It still contains the last vestiges of the mediaeval estates of the realm, notably 92 hereditary peers representing the landowning classes. No justification can be made for their role in making the laws of the land.1
No mention of the fact it also contains Bishops, despite the 2021 census indicating that less than 50% of the population of the UK professed to membership of the Christian faith. Of course, membership of the established church will be lower still.
Ironically, in singling out those 92 peers Labour are taking aim at the only people in the House of Lords who are elected.2
Not to worry, though. The reference to hereditary peers is simply there to stoke a little outrage. As you will see, according to Labour
[t]hat is not however the most serious concern about the Lords. It has also become excessively large, having swollen in recent years to around 800 Peers – and now ranks as the second biggest parliamentary chamber in the world, after the National Peoples’ Congress in China.3
Much of the swelling of the House of Lords is, according to Labour, down to the bad behaviour of the Conservatives:
This is largely because there is no constraint on the prime minister's power of patronage, which has been exercised in a wholly unacceptable way by recent Conservative governments, shameless in appointing party donors and overruling the independent Appointments Commission. The abuse of the appointments process has been gross.4
Of course, that tells only part of the story. The largest number of life peers created by a single Prime Minister during their term of office was by none other than Tony Blair.5
Nevertheless, 71% of us want to reform the House of Lords.6 At least that's what a survey of 1005 people by a campaigning organisation told us.7
In a country of soaring inflation, wage stagnation, and with forecasts of recession to come, I strongly suspect reforming the upper chamber of the legislative body is not high on the list of priorities of the electorate.
Gallery played to. So what about the actual proposals?
A list of non-proposals
The answer to the issue of House of Lords bloating is, according to Labour’s commission, to abolish it and replace it with a new second chamber titled (again, grandly) “An Assembly of the Nations and Regions”. According to the Commission, one of the main blockers to reform of the House of Lords is that, because of its increased legitimacy, it would
challenge the authority of the House of Commons and carry the risk of “gridlock”, and of making the government of the country impossible.8
The Commission then goes on to set out what the new chamber could not do:
• It should have no role in the forming or sustaining governments. That, as today, must fall to the House of Commons.
• Similarly, it should have no responsibility for decisions about public spending or taxation, including National Insurance
• It should not in general be able to reject legislation but should be able to propose amendments
• These limitations on its powers must be set out clearly in the statute which creates the new chamber, so that there is no ambiguity about the relationship between it and the House of Commons.9
This is, for me, the first big flaw in this part of the Report. The setting of these limits is entirely arbitrary - there is no attempt to set out why the Commission believes these constraints should be placed upon the new second chamber.
It is clear, throughout the chapter of the Report dealing with House of Lords reform, that a fundamental position of the Commission is that the House of Commons should retain its primacy. Such primacy, however, is a relatively new aspect of the constitutional arrangements of the United Kingdom - until 1911 the House of Lords had the power to prevent a Bill becoming an Act.10
The Parliament Act 1911 was the result of the House of Lords rejecting the budget introduced in the democratically elected House of Commons. Without digging too much into the trials and tribulations, the pertinent point is that it was argued that the unelected chamber of the legislature should not be able to stand in the way of the elected chamber who were, after all, there to represent the interests of the electorate.11
That justification, though, falls away at the point a second chamber becomes one which is elected by the general public. In fairness to the Commission, they don't actually say the chamber would be elected by the public - it says the precise composition and method of elections are matters for future consultation.12 I don't think it's an unreasonable assumption, however, that the chamber would be elected by the public, simply because if the election is held in another manner, for example within the Commons, any claim to democratic legitimacy falls away.
If the new chamber is to have broadly the same powers as the House of Lords it is hard to see a justification for the amount of disruption these proposals would cause. It would be entirely possible to reduce the number of people in the House of Lords under the current structure by amending a handful of current Acts.
Shiny new powers
The Commission does, after listing what a new second chamber can’t do, go on to consider what it can.
The new chamber would retain a scrutiny role (though, not to bang the drum on elections again, it is hard to see how career politicians are best placed to perform that function, so the effectiveness of the role will depend on the precise composition of the chamber and method of elections).
Standards in Public Life
Elsewhere in the Report, the Commission has suggested the setting up of an independent “Integrity and Ethics Commission”. The new second chamber would, they propose, exercise a level of superintendence over the work of that commission.13
The new chamber would be responsible for
approving the appointments of the new Integrity and Ethics Commission, the replacement for the Prime Minister's advisor on standards, and for considering its reports, approving the ministerial code, and where necessary action under it.14
Although this would go some way to improving the current system (about which, perhaps at some point I will write a green paper) it isn’t clear to me what the point of giving the second chamber oversight of it is.
At its worst it introduces another point for a potential conflict of interest - the members of the chamber would be in public life and so, presumably, subject to the remit and sanctions they are being entrusted to approve.
At its highest, this would provide a neat solution to the parliamentary privilege question as to how Parliamentarians can be sanctioned for behaviour relating to the carrying out of their duties. However, there are other ways in which this could be achieved and they would be more likely to demonstrate the independence of the system. For example, an independent conduct tribunal could be created and it could be given a specific and limited carve out from Article IX of the Bill of Rights.15
Protecting the Constitution
The Commission proposes allowing the new chamber to inherit the one legislative veto power the House of Lords still retains - the power to prevent legislation extending the life of a parliament being enacted.16 However, it then goes on to suggest extending the power to certain constitutional statutes the Commission consider worthy of some enhanced protection.17 The new chamber would, under the Commission's proposals, have the power to reject legislation which related to a narrow list of "defined constitutional statutes", creating a limited form of entrenchment.
The Commission accepts it is necessary to be clear about the range of legislation the power will apply to.18 It is not, however, then clear about what it thinks it should apply to or why. The Commission says the Parliament Acts, the legislation creating the second chamber, and the Constitutional Reform Act 2005 are all obvious candidates.19 Given what the Commission is recommending, in creating from scratch a new second chamber, I would venture that it isn't obvious why any of those pieces of legislation should have protection. Their position is particularly curious when they go on to say:
The Representation of the People Acts, which give substance to political rights, and some older constitutional legislation such as the Acts of Succession and the treaty and Acts of Union might also be included.20
I may be missing some subtlety, but I remain unclear why the Parliament Acts are seen by the Commission as a bedrock of our constitutional settlement but not those Acts which give us suffrage, or which sit at the very heart of the foundation of the United Kingdom. Even more curiously, the Bill of Rights (which is the source of parliamentary privilege) and the Human Rights Act 1998 don’t even merit digital ink.
The Commission’s thinking on the creation of their version of constitutionally protected statutes (we already have a version of entrenchment where “constitutional” statutes cannot be impliedly repealed) seems to be at odds with itself. It is, rightly, cautious of providing protection to something purely because of the political landscape at a given time:
It should include legislation which is of genuine constitutional significance for the long term, and it will be important to resist the temptation to include issues which attract a great deal of public attention or high political priority at any given moment.21
However, after setting out that such fundamentals as political rights might be deserving of protection, the Commission then goes on to say:
The most obvious lesson from recent Conservative government disregard for constitutional convention is of course in relation to devolution, and devolution and the Sewel Convention in its strengthened statutory form must receive this form of constitutional protection. Amongst our own recommendations, we would envisage that the purposes of the UK, the duty to promote economic equality across the UK, the ‘solidarity clause’ obliging cooperation between governments and the principle of subsidiarity would merit such protection. The individual rights we discuss above will be sustained by a balance of direct enforceability with constitutional protection.22
Clearly they could not resist the temptation they talked about. The Sewel Convention is a parliamentary convention, unenforceable before the courts, that the “UK Parliament” will not ordinarily legislate in areas of devolved competence without the consent of the relevant devolved administration(s).23 Whilst there are good reasons why devolved administrations should be the usual legislature in respect of devolved issues (otherwise, what is the point of devolution), there are equally some good reasons why it might be necessary for the UK Government to bring forward legislation that applies equally across the UK. The Report does not offer any rationale for giving the second chamber the right to reject UK wide legislation, and I am left wondering if the reason which underpins the suggestion is that devolution is a product of a Labour government.
Despite the suggestion of introducing the new power, the Commission maintains its assertion that the House of Commons must retain primacy.24 This causes the Commission an additional problem to solve: how can they maintain the primacy of the House of Commons whilst protecting this new class of statute from easy amendment?
One suggestion is the use of a super majority, either in order for the second chamber to exercise its power to reject or for the Commons to then overrule the rejection if it had been exercised. Another suggestion is to allow a Bill which has been rejected to be reintroduced and forced through against the second chamber’s wishes if the issue that Bill relates to is put to the electorate in a subsequent general election.25
Neither of these suggestions really deal with the issue. A super majority needed in the second chamber means the power will rarely be exercised. A super majority needed in the Commons to overrule the second chamber means that virtually every, if not all, rejection will stand. General elections are fought over multiple issues, and it is difficult, if not impossible, to evidence that the party winning on the basis of a manifesto including that issue actually does have the democratic mandate to pursue the changes the second chamber rejected.
There is one last element to the proposed powers to guard the constitution. In order to reject legislation, the second chamber would need the Supreme Court to agree the effect of the Bill, if passed into law, is one which relates to a constitutionally protected statute.26 Presumably, that is the justification for including the Constitutional Reform Act 2005 in the list of protected statutes.
Conclusion and next steps
So, where does this leave us?
As I am sure has become clear by now, I do not think the Report makes the case for the reform it proposes. It reads very much that the primary aim is to abolish the House of Lords and replace it with a new body, and that any consideration of how that sits within our wider constitution is muddled or avoided.
There is, in my view, some force in an argument that the House of Lords needs to be reformed. Political patronage and a large body of members means it is unlikely to be fully effective in carrying out its remit of scrutinising legislation and holding the executive to account. However, both of those issues could be dealt with by changing the criteria for membership of the House of Lords. If a more fundamental change is being considered, then the entirety of parliament, its functions, its procedures, its powers and its members must be on the table.
This Report, if the proposals are implemented, would cause a significant degree of disruption to the political and constitutional life of the UK with little, if any, tangible benefit.
I think the topic of constitutional reform, including the reform of parliament, is something that would lend itself nicely to a series of green and white papers. Unfortunately, it would be a long-term, full-time commitment I couldn’t make at this stage so it will have to wait.
An interesting aside
I am going to end this brown paper with an interesting nugget. In the UK we have something many people don’t know about which are colloquially referred to as “People’s Peerages”. They were introduced in 2000, and the basic premise is that anyone can nominate anyone for a crossbench peerage.27
The assessment criteria against which these applications are assessed is as follows:
with the ability to make an effective and significant contribution to the work of the House of Lords, not only in their areas of particular interest and special expertise, but the wide range of other issues coming before the House;
with a record of significant achievement within their chosen way of life that demonstrates a range of experience, skills and competencies;
who are willing to commit the time necessary to make an effective contribution to the work of the House of Lords. The Commission recognises that many active members continue with their professional and other working interests and this can help maintain expertise and experience;
with some understanding of the constitutional framework, including the place of the House of Lords, and the skills and qualities needed to be an effective member of the House – for example, nominees should be able to speak with independence and authority;
who are able to demonstrate outstanding personal qualities, in particular, integrity and independence;
with a strong and personal commitment to the principles and highest standards of public life;
who are and intend to remain independent of any political party. Nominees and the Commission will need to feel confident of their ability to be independent of party-political considerations whatever their past party-political involvement. For this reason, all nominees are asked to respond to the questions on political involvement and activities which are similar to those used for most public appointments;
who are resident in the UK for tax purposes and accept the requirement to remain so.
I asked what constituted a “record of significant achievement”, given it is subjective, and this was their reply:
you may wish to look at the list of peers that have been created by HOLAC which might guide you in terms of what is meant by a person with a record of 'significant achievement in their chosen field'. While you are right to say that this is subjective, it is important to note that one of the things the Commission is seeking is candidates who will enhance the House of Lords by providing the highest level of knowledge and experience on subject areas that may not already be covered by other members. 'Significant achievement' in this context therefore means in comparison to others who may be doing similar work.
A parting thought
Perhaps the simplest reform to the House of Lords would be to make it by public nomination only, with all nominees put through the same process to identify if they will really enhance the work of the Lords, and to remove any party affiliation from it.
Thank you for reading this brown paper. If you’ve found it interesting and would like to see how I tackle other topics in future please
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page 135.
Under the House of Lords Act 1999 those hereditary peers sitting in the House of Lords are elected in accordance with Standing Orders of the House of Lords.
page 135.
page 135.
page `136.
page 138.
page 138.
There was a threat to flood the Lords with peers of the relevant political leaning in order to force through any legislation, and it is likely that threat is the reason the Lords accepted the Parliament Act 1911 and the significant reduction in their power it brought.
page 143.
Chapter 10 (pages 128 - 134).
pages 139 - 140
page 140.
page 140.
page 40.
page 142.
page 142.
page 142.
page 142.
page 141.
page 142.
pages 140 - 141.
A Crossbench peerage is one where someone is not affiliated to a political party.
"If a more fundamental change is being considered, then the entirety of parliament, its functions, its procedures, its powers and its members must be on the table."
Yes, I totally agree with this. I find it really disheartening how few people recognise that piecemeal constitutional reform has next to no chance of bringing us competent, principled government.
"I think the topic of constitutional reform, including the reform of parliament, is something that would lend itself nicely to a series of green and white papers. Unfortunately, it would be a long-term, full-time commitment I couldn’t make at this stage so it will have to wait."
I can relate to that.
Back in 1983, when I was in my mid twenties, I'd promised myself that I would vote (for the first time) in the coming General Election. When it came to it however, I couldn't bring myself to vote for any of the candidates standing. I decided then that there was something fundamentally wrong with the whole system and, to release myself from the promise I'd made, I made a commitment to work out a system that I could respect.
It hasn't been full-time but it's taken forty years to arrive at something I think would be fit for a mature society.