Reassessing the House of Lords: Why the Lords Should Remain Unelected

“As the House of Lords has existed for about six centuries without reform, some alterations have become necessary in order to bring it into conformity with the changed institutions by which it is surrounded.” – Lord Rosebery, 1884.1

Since Lord Rosebery’s well-known speech there has been much debate about changes in the composition of the House of Lords. Major reforms included the Life Peerages Act 1958 and later the House of Lords Act 1999, which reduced the hereditary members to 92.2 Nevertheless, constitutional experts such as Rodney Brazier argue that the House of Lords continues to be “unelected, unrepresentative and unaccountable.”3 The Coalition Government is therefore working on another reform bill to provide for a wholly or largely elected second chamber. This essay will argue that such a drastic change from a largely appointed to an elected system is too unrealistic to be implemented. Instead, the Government should seek to abolish Prime Ministerial patronage as well as the remaining hereditary members and adopt an independent Appointments Commission that appoints all the members of the upper chamber. To arrive at this conclusion, we will need to analyse which selection method best retains the Lords’ expertise, as well as their independence and representativeness. Then, a discussion follows whether the Lords necessarily ought to be democratically elected to provide a legitimate chamber. Lastly, the possibility of a mixed chamber will be considered.

The House of Lords is commonly referred to as the ‘revising chamber’ in Parliament as its principal role is to serve as a check on the Government by amending drafted bills.4 Without the scrutiny of the House of Lords there would not be any “counterweight against elective dictatorship”, because the House of Commons could otherwise easily pass their bills.5 Would this vital function be preserved in both elected and appointed chambers?

A wholly or largely elected upper chamber would pose several problems in regards to the Lords’ expertise. At the moment, the upper chamber is comprised of experts in their fields leading to high quality debates, if not higher than in the Commons. A comparison with other upper chambers abroad proves: no other second chamber achieves a similar reputation as an intellectual powerhouse as the House of Lords.6 This is because many members of the House of Lords are specifically appointed because of their experience and personal distinction. In an elected system, however, it would be difficult to imagine how such a wealth of knowledge could be retained. Most likely, only politically active people would be running for election. This is due to the fact that elections involve much media attention which could deter those who might have been chosen by a ‘publicity free’ Appointments Commission. It is true that the House of Lords needs political experts in order to comprehend the workings of Parliament but too much of a political bias might limit the intellectual resources of the House.

Of course, the current system is not flawless either. A striking drawback is that the vast majority of the Lords are elderly, which on the one hand underlines their experience, but on the other hand this hints to the fact that they might not be familiar with the recent developments of their professions.7 Furthermore, Prime Ministerial patronage involves much bias as members are chosen depending on the ruling Prime Minister. This makes the appointment system quite arbitrary. The current House of Lords Appointments Commission is too weak to make much of a difference. However, an independent Appointments Commission could tackle this problem by specifically targeting senior experts as well as politically accomplished persons and highly-promising newcomers in various fields. That way, much of the existing expertise would be preserved while at the same time adding ‘new’ knowledge to the chamber.

Another factor which determines the Lords’ excellent working performance is their ability (as far as human nature allows) to think independently. Many life peers do not currently confess to any political party. This allows them to have a more unbiased approach to legislation than Members of Parliament who are under constant pressure of their party whip. Yet, society will put an election of the House of Lords on a level with the many other political elections. As a result, chances are high that people will simply vote for ‘another politician’ than for somebody who does not belong to any party at all but who might have been the right candidate. This is strengthened by the fact that politicians usually possess the ability to sell themselves in public, whereas others may seem intimidated in comparison. When a politician is elected as a Lord, partisan pressure would lead to the newly-elected Lord not to be neutral and, therefore, not to debate without bias.8 Such findings speak against an elected upper chamber.

In addition, people may not consciously vote for whoever is most qualified for the upper chamber. Political scientist Bogdanor argues that the results would rather reflect the performance of the ruling government.9 Hence, even if the elections happen at a different time than those of the House of Commons, people might understand this opportunity as some kind of ‘mid-term opinion’ of the performance of the Government and vote accordingly.10 This would completely undermine the value of the result. As people associate the House of Lords with the entire Government, such a situation would be difficult to circumvent. This further proves the advantage of leaving the House as an appointed chamber because elections would clearly not take place.

At present, critics argue that the House of Lords does not reflect British society of the 21^st century. Former Conservative Member of Parliament Sir Martin Lindsay correctly pointed out the personal background of the Lords is too homogenous: it would be unlikely to see a manual worker represented in the House of Lords.11 Although this was probably an exaggerated analogy, Lindsay touched upon a very important point: lack of societal representativeness.

An elected chamber would unfortunately not improve this. For, if we continue our analysis that people are likely to elect high-calibre politicians for positions in the House of Lords, the picture we would get would not be too different to our current Government: white, middle-aged men, who enjoyed an above average education.12 While we could not force the electorate to vote for a more representative chamber, an independent Appointments Commission could ensure an equal number of women, ethnic minorities and churches to be represented in the House of Lords.

As professor Dawn Oliver constitutes, this would:

“enhance the capacity of the reformed second chamber to be a forum for public participation...in the development of policy and holding government to account.”13

We need to realise that we no longer live in a secluded society but in one which requires us to embrace multiculturalism. Thus, an appointed chamber would be more representative since it would incorporate larger sections of society resulting in fairer decision making.

On the contrary, the missing democratic element is likely to be the strongest argument against an appointed chamber. Democratic instinct tells us that any part of the Government, above all Parliament, should be democratically elected without any external influence. Thus, no matter how high the quality of the debates or how representative the Lords may be, the upper chamber is automatically deemed undemocratic as it is not chosen by the electorate. Is it not a paradox to have an unelected chamber dismissing legislation by an elected House of Commons and declaring the bill undemocratic? This was, for instance, the case when the House of Lords rejected a bill to cancel the Great London Council elections in 1984.14

The Guardian journalist Martin Kettle gets to the point: “In a democracy, those who make the laws should be chosen and removed by the people...so the Lords should be elected.”15 However, Kettle should not forget that elections actually require the electorate to vote – otherwise an elected system would not make much sense. With already numerous local, national and European elections we start to recognise a falling interest in politics among people, a common sign of ‘voter fatigue’.16 In fact, voting turnouts have never been as low as this decade since the Second World War, with the 2001 general elections hitting a record low of 59, 4 per cent.17 It can therefore be argued that turnouts for another election do not seem promising.

A recent public poll underlines this trend. While 76 per cent of the public agrees that ‘trust in the appointment process’ is the most important criterion in regards to the House of Lords, only 50 per cent were convinced that members should be elected by the public.18 We can infer from these outcomes that people’s satisfaction is more likely to be guaranteed with a trustworthy appointment system than with a selection process involving the public. This stresses the advantage of an independent Appointment Commission as people could be sure that members were chosen according to well-selected, open criteria and not according to the likes of the ruling Prime Minister. Hence, in exceptional circumstances like these, it is desirable to have a system which seems ‘undemocratic’ on the outside but which is reliable and which satisfies the public at the same time.

Having discussed the democratic aspect, a further crucial issue to the success of the new chamber is ‘legitimacy’. Popular elections would supply the House of Lords with political legitimacy since it would enjoy the electorate’s direct support.19 While acknowledging this, author Donald Shell goes further by arguing that “a system of appointment that brings in members that are recognised as having relevant expertise and experience and perhaps personal distinction may generate legitimacy.”20 Thus, we must not assume that an appointed chamber is regarded as illegitimate per se. The previously mentioned poll suggests that the public desires intelligent people sitting in the Lords.21 This means that if an independent Appointment Committee ensures to select competent persons from a range of fields, this newly appointed chamber would be treated as legitimate despite being unelected.

In addition, similar election procedures could cause the House of Lords to look exactly the same as the House of Commons.22 Being a mere ‘replica’ of the lower House could seriously infringe the effectiveness of the House of Lords as it would no longer be able to serve as a check against the Government. In the worst case, this would lead to ill-thought out legislation being passed. On the contrary, an elected upper chamber with a majority that is significantly different to that of the Commons would trigger stagnancy in the legislative process, “with both Houses claiming a mandate for their actions and each claiming a superior mandate to the other.”23 However, a different election system, such as proportional representation, could suddenly be regarded as more legitimate than the ‘First-Past-The-Post’ system of the House of Commons. Rivalry between the two Houses as a cause of a battle for legitimacy could mean an end to an efficient Parliament, because the House of Lords would threaten the democratically justified dominance of the lower House.24 We should not forget that the House of Commons is and should remain the pre-eminent chamber in Parliament – without its authority the entire legislation process would be disrupted.25 Thus, an appointed upper House is most likely to have a balanced legitimacy as it does not question the position of the House of Commons.

Lastly, we need to consider whether it would be preferable to have a second chamber in which some members are appointed and others elected in the hope to combine the benefits of both systems. Indeed, there have been many different proposals in the past few years endorsing such a ‘hybrid’ chamber. Most notably, in 2000 the Royal Commission under Lord Wakeham proposed a largely appointed upper chamber with some elected members. The proposals highlighted the advantages of an independently appointed chamber as analysed above, but insisted that some elected members were necessary because the House of Lords might otherwise “decline into an assemblage of respected but politically ineffective dignitaries.”26

Although the report was unsuccessful, it represented an important first step forwards. It tried to incorporate a democratic element by having at least some members elected. However, what Lord Wakeham did not realise were the potential negative consequences of having two methods of selection combined. For when internal disagreements between elected and appointed Lords would emerge, the elected parts might claim to have greater legitimacy over the appointed members since they were directly elected by the people.27 Such discrepancies, in turn, would bring the legislative process to a halt. While currently appointed peers already claim to be in a slightly more legitimate position than their hereditary counterparts, this stigma could enlarge and be passed onto the independently appointed members of the new chamber.28 Consequently, it is best to have an entirely appointed upper chamber to avoid such clashes and to ensure the efficient workings of the chamber.

Admittedly, Britain is one of only few Western democracies to possess an appointed second chamber.29 However, we cannot simply compare Britain with, say, Germany where the latter is a federal state and therefore provides a completely different constitutional setting. Moreover, the many failed proposals of the past prove that it is not just a matter of recommending some ideal changes – we cannot overturn our traditions straightaway but must make moderations which are feasible in Britain right now. The recent economic recession should make the Coalition Government reconsider its current proposals because elections would exceed the costs of an independent Appointment Commission. The money that could be saved could be spent on other matters like higher education instead.

As a conclusion, the overarching question that governs the debate about the reform of the House of Lords is how the upper chamber can be realistically altered to make it fit in with the Britain of today. Although it carries out its tasks well, its composition must change. This essay suggested that the House of Lords should be left as an appointed part of the legislature. However, in order to improve satisfaction among society, Prime Ministerial patronage has to be replaced with an independent Appointments Commission. That way, experts could be retained in the House while making it more representative of society as a whole. This would provide the chamber with sufficient legitimacy to amend legislation but without challenging the House of Commons as the leading chamber. Research proved that the public does not always want to get involved as long as they can confide in the appointed peers. We could also ascertain that – while the idea of a mixed chamber is generally good – internal disagreements could threaten the House to fall apart.

Considering the fact that many Governments failed to put their proposals into practice, it remains to be seen whether the Coalition Government will reach its aims. No matter what it decides, a successful implementation will require the co-operation of the Government, Parliament and the British public.30

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References

Books

A W Bradley & K D Ewing, Constitutional & Administrative Law (15^th edn Pearson Longman, London 2010).

R Brazier, Constitutional Reform – Reshaping the British Political System (3^rd edn OUP, Oxford 2008).

R Brazier, 'The Second Chamber: Paradoxes and Plans' in P Carmichael & B Brice (eds), The House of Lords, Its Parliamentary and Judicial Roles (Hart Publishing, Oxford 1999).

J Jowell & D Oliver, The Changing Constitution (6^th edn OUP, Oxford 2007).

M Lindsay, Shall we reform ‘the Lords’? (1^st edn Falcon Press, London 1948).

P Leyland, The Constitution of the United Kingdom, a Contextual Analysis (1^st edn Hart Publishing, Portland 2007).

I Loveland, Constitutional Law, Administrative Law and Human Rights: A Critical Introduction (5^th edn, OUP, Oxford 2009).

I McLean, What's Wrong with the British Constitution? (1^st edn OUP, Oxford 2010).

D Oliver, Constitutional Reform in the United Kingdom (1^st edn OUP, Oxford 2003).

K Quarmby, Straight to the Senate (1^st edn Institute for Public Policy Research, London 1997).

Royal Commission on the House of Lords Reform, A House for the Future (The Stationery Office, London 2000).

M Russell, Reforming the House of Lords: Lessons from Overseas (1^st edn OUP, Oxford 2004).

D Shell, The House of Lords (1^st edn Manchester University Press, Manchester 2007).

C Taylor, Constitutional and Administrative Law (2^nd edn Pearson Longman, Harlow 2010).

Articles

V Bogdanor, 'Reform of the House of Lords: A Sceptical View' The Political Quarterly Publishing [1999]

Sources from the Web

M Kettle, 'MPs cool on Lords reform are very, very future focused' (The Guardian, 18 July 2008) http://www.guardian.co.uk/commentisfree/2008/jul/18/lordreform.labour [accessed 5 December 2010]

UK Political Info, 'General election turnout 1945-2010' http://www.ukpolitical.info/Turnout45.htm [accessed 6 December 2010]

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1.) M Lindsay, Shall we reform ‘the Lords’? (1^st edn Falcon Press, London 1948) 12

2.) A W Bradley & K D Ewing, Constitutional & Administrative Law (15^th edn Pearson Longman, London 2010) 174

3.) R Brazier, Constitutional Reform – Reshaping the British Political System (3^rd edn OUP, Oxford 2008) 66

4.) C Taylor, Constitutional and Administrative Law (2^nd edn Pearson Longman, Harlow 2010) 63

5.) Brazier (n 3) 70

6.) M Russell, Reforming the House of Lords: Lessons from Overseas (1^st edn OUP, Oxford 2004) 306

7.) K Quarmby, Straight to the Senate (1^st edn Institute for Public Policy Research, London 1997) 243

8.) D Oliver, Constitutional Reform in the United Kingdom (1^st edn OUP, Oxford 2003) 199

9.) V Bogdanor, 'Reform of the House of Lords: A Sceptical View' The Political Quarterly Publishing [1999] 378

10.) Ibid

11.) Lindsay (n 1) 11

12.) D Shell, The House of Lords (1^st edn Manchester University Press, Manchester 2007) 132

13.) Oliver (n 8) 1999

14.) Brazier (n 3) 69

15.) M Kettle, 'MPs cool on Lords reform are very, very future focused' (The Guardian, 18 July 2008) http://www.guardian.co.uk/commentisfree/2008/jul/18/lordreform.labour [accessed 5 December 2010]

16.) I McLean, What's Wrong with the British Constitution? (1^st edn OUP, Oxford 2010) figure 11.2, 244

17.) UK Political Info, 'General election turnout 1945-2010' http://www.ukpolitical.info/Turnout45.htm

[accessed 6 December 2010]

18.) I McLean (n 16) figure 11.2, 244

19.) R Brazier, 'The Second Chamber: Paradoxes and Plans' in P Carmichael & B Brice (eds), The House of Lords, Its Parliamentary and Judicial Roles (Hart Publishing, Oxford 1999)

20.) Shell, (n 12) 164

21.) McLean (n 20) 244

22.) J Jowell & D Oliver, The Changing Constitution (6^th edn OUP, Oxford 2007) 179

23.) Bradley & Ewing (n 2) 179

24.) I Loveland, Constitutional Law, Administrative Law and Human Rights: A Critical Introduction (5^th edn, OUP, Oxford 2009) 188

25.) P Leyland, The Constitution of the United Kingdom, a Contextual Analysis ( 1^st edn Hart Publishing, Portland 2007) 97

26.) Royal Commission on the House of Lords Reform, A House for the Future (The Stationery Office, London 2000) 104

27.) Bogdanor (n 14) 380

28.) Russell (n 6) 333

29.) Ibid

30.) Russell (n 6) 341