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Saturday, 13 August 2011

Lords Reform Reviewed

This is the first in what will hopefully be a series of contributions from respected guest authors. This month Robert Maclennan writes on the Coalition's proposals for reform of the House of Lords.

Discussion is the best kind of democracy. That wise opinion of John Stuart Mill is ample justification for bi-cameral parliamentary government. The reform of the House of Lords by the Asquith government one hundred years ago was intended to remove the power of the second chamber to block decision making by the government, not to close down discussion. In that aim, the reform was successful. And discussion can lead to a change of mind. In a recent five year period 40% of amendments to legislation passed by the House of Lords against the initial wishes of the government were ultimately accepted by the government. Such outcomes have rarely been subjected to criticism and, no doubt, justify the accolades of the present Prime Minister and Deputy that “the House of Lords works well...and its existing members have serviced the country with distinction.” The question which must, therefore, be answered about the Coalition Government’s proposed changes in the composition of the House of Lords is “How will the proposed new second chamber work better than the present one?”

It is instructive to consider the constitutional context in which the Draft Bill to provide for a “wholly or predominantly elected” House of Lords is published. By the end of the twentieth century the good governance of the United Kingdom was perceived to be threatened by the growing extent of the exercise of centralised executive power. In a unitary state where the government wields the prerogative powers of the crown largely unchecked by Parliament, where the electoral system can sustain in office for a long time the same political party with the support of only a minority of the electorate and where membership of the House of Commons is increasingly professionalised and with the preferment of its Members depending upon the patronage of the Prime Minister the trends are troubling. Cabinet government itself has been seen to be eroded by the personalisation of power and what has been called “sofa government”. In consequence, constitutional reform, or “modernisation” as it was comfortably described, became a hotter political topic than usual.

By the end of the 1990s steps were underway to devolve power, to open up government processes to scrutiny through freedom of information, to effectively protect human rights, to secure the separation of the highest court of the realm from the legislature and to strengthen the independence of judicial appointments. At the same time Parliament began to reconsider its own composition, processes and conventions. The Commons’ Administration Committee, chaired by Tony Wright, pushed to strengthen the independence of the House Committees from executive influence. The dominance of the hereditary membership of the House of Lords was greatly diminished by the 1999 Act. It can be seen that the central thrust of the reforms was to redistribute power and to strengthen the checks and balances of our Parliamentary democracy. The continuance of this process is the real opportunity to be pursued in pushing forward further parliamentary reform, including reform of the second chamber. As the proposals stand, however, they would fall far short of securing these purposes.

The paradox at the heart of the Coalition Government proposals is the extraordinary utterance that “The powers of the second chamber and, in particular, the way in which they are exercised should not be extended.” What, then, is the point of the proposed changes? The compliment is paid to the House of Lords that it has “served the country with distinction”. Its “lack” to which the government draws attention is “sufficient democratic authority”; but, it is proposed that the Lords having been given sufficient democratic authority, must do no more and do it no differently.

Those who have long favoured an elected second chamber have done so because they have seen it as a contribution to strengthening the hand of the legislature over the executive arm of government. In particular, some have observed that although the House of Commons is wholly elected it is itself capable of behaving like a well-trained poodle and of performing at the command of the government. A second chamber, or Senate, wholly elected by a different voting system from that of the House of Commons, could indeed call governments to refrain from precipitate or ill-considered action. The authority of the senators, stemming from their democratic election, would reasonably entitle them to pit their judgement against that of the government in the full knowledge that, like the government, they themselves would be held to account by the electors for their actions. The fear of gridlock between executive and legislature can be exaggerated, for if there is openness of reasoning between the arms of government and the balance of argument is finely drawn then normally deference to the executive is to be expected in a parliamentary democracy.

There is a second good reason for giving legitimacy by direct election to the second chamber and that is to enable the workload of Parliament to be spread across two chambers. The House of Commons is heavily over burdened. The advent of IT has added greatly to the accessibility of MPs whose duties are, properly, seen as being to represent every interest touched by government and public authorities. The increase in the constituency workload is matched by an increase in MPs’ direct engagement in oversight of the executive through membership of the growing number of departmental and other standing committees of the House. The increase in the volume of legislation brought to Parliament also bears down heavily on its Members and the consequent increasing practice of timetabling legislation in the Commons does result in matters being less considered there and, not infrequently, passed to the Lords without full scrutiny of all clauses of bills. The time is surely ripe to acknowledge that spreading responsibility, even primary responsibility, across two elected chambers would help to ensure better governance by enabling both Houses of parliament to focus their attention and, in combination, to scrutinise more effectively the wide spectrum of public decision making. There might, for example, be sense in retaining the primacy of the House of Commons over money bills but also in giving primacy to the second chamber to scrutinise legislative proposals from the European Union. Prerogative powers of appointment and treaty ratification could be overseen by either chamber.

Regrettably these opportunities are not opened up by the Coalition Government’s proposed reform of the House of Lords. Indeed, they are explicitly blocked. The Coalition “does not intend to amend the Parliament Acts or to alter the balance of power between the Houses of Parliament”. Thus, even the delaying power of a second chamber would not be increased. It must be doubted that an elected second chamber would agree to play second fiddle for so long. It can be reasonably anticipated that, just as there has been continuing tension between devolved governments and central government over the distribution of power between them, there would be conflict almost immediately about the limited scope of the second chamber’s powers initiated by those legitimately elected to serve in it. For example, the conventions which have normally constrained the House of Lords from rejecting secondary legislation which has been approved by the House of Commons would be seen for what it is – a convention capable of being overturned. The proposed Bill does not resolve questions of the relationship between the two chambers. It will entrench conflict.

Another oddity of the proposals to enhance the “democratic authority” of the second chamber is the failure to make any provision for the accountability of its members. This appears to be deliberate. The provision that elected members may serve only once and may do so for fifteen years, or for even more if they are elected at the beginning of a parliament which does not run its full term, is to deprive their electorate of any hold on their members. It must be questioned how long the conferral of “democratic authority” can last. Moreover, the Government has stated that it “expects members of the reformed House to be full-time Parliamentarians” but there is no provision to ensure this.

A criticism is made that present House of Lords members do not themselves participate in all the business of the House. Many, of not most of them, are engaged in external, but often highly relevant professional or business activities, and when matters arise on which they can speak and offer advice with authority which comes from knowledge they do tend to be present. Others have expressed concern that full-time professional politicians, members of an elected second chamber, are less likely to contribute such knowledge to public debate. That argument may have contributed to the Coalition Government’s proposal that sixty of the three hundred members of the second chamber should be appointed also to serve for terms of fifteen years, to retain some appropriate expertise. That provision, however, would appear less apt to secure relevant knowledge of matters under discussion than to maintain the public and parliamentary perception that the second chamber had less democratic authority than the House of Commons. It might, as the Coalition appears to wish, prevent any party from being strong enough on its own to block a government proposal in the partially elected second chamber. Ministers in proposing reform of the House of Lords have called for “sufficient” democratic authority for the new chamber. That begs two questions: “what is sufficient?” and “sufficient for what purposes?” – it appears that the design is intended to prevent the balance of power tilting any further towards Parliament.

Those who advocate the election of the second chamber must face up to the huge changes which it would make to the performance of its roles. The inescapable loss of expertise and experience which would flow from the abolition of a deliberately appointed chamber ought to be addressed by those of us who favour an elected second chamber. It is that expertise and the evidence of the commitment to public service of the members of the House of Lords which is widely acknowledged as giving it its distinctive justification. A possible contribution to answering the conundrum would be to recognise the case for appointing a Council of State comprising a membership drawn from those who are recognised to have achieved eminence and who have made a contribution across a wide range of positions in civil society. The role of such a Council of State would be advisory, but it would have a prescribed place in the governance of the country and, in particular, in the legislative process. It s members would be equipped to offer not just particular specialist knowledge which might otherwise be overlooked. Such people are often reluctant to seek elected public office, although some of them might have done. They are not particularly partisan in their viewpoints but have insights, experience and commitment to public welfare which is of continuing relevance and value. Some might be chosen because their knowledge is unlikely to be directly represented in an elected chamber. Sitting on a continuing basis, such a Council of State would have an identity and the gravitas to draw public and parliamentary attention to issues and possible resolutions of problems which otherwise might not be considered in the hurly-burly of political life.

The “Mother of Parliaments” at Westminster has in the past provided a model for many other legislatures. It is worth noting, however, that most of the second chambers in other democracies are not only elected but are substantially smaller than the proposed House of Lords. Whether directly or indirectly elected that are on average less than one-third of the size of what the Coalition has proposed for Britain. The relatively small size of those chambers would seem not to diminish their standing. Indeed, it might be argued that smaller elected bodies achieve more eminence and influence and would thus be more attractive to aspirant politicians. If, however, the Coalition’s proposals are enacted then the membership of the new second chamber will be a mixture of people with remarkably diverse status. There will be “transitional” peers, i.e. those waiting to be dropped at successive election; appointed peers; a handful of ministers seconded by the Government to the second chamber; elected peers and twelve bishops. It is hard to see how such a galère of members would strengthen the coherence of the second chamber or persuade the public of its “democratic authority”.

The virtue of evolutionary constitutional change is often extolled by British commentators. The package of proposed reforms of the House of Lords gives little real hint of the direction towards which Britain’s parliament might tend. It might indeed, due to its ineffectuality, lead to uni-cameral government. In other countries, such as Sweden and New Zealand this is now the norm. But such a development in Britain with our propensity to promote central control and fortified by an electoral system which does not tend to spread power across parties could lead to a dangerously unchecked presidential system. it is good that the debate has begun and it is hoped that the Joint Parliamentary Committee scrutinising the Bill will not be unduly confined by its terms.

Robert Maclennan (Lord Maclennan of Rogart) was MP for Caithness & Sutherland (1966-2001), leader of the Social Democratic Party (1987-88) and Liberal Democrat spokesperson for constituional affairs and culture (1994-2001).

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