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22 Nov 2022

Constitution

In the light of recent reports that Labour would reform the House of Lords if it won the next election, Alexander Horne notes that the precedents suggest that the job might be more difficult than anticipated and will engage some important constitutional issues. 

Recent press reports have suggested that Keir Starmer is planning to abolish the House of Lords to  ‘restore trust in politics’. Looking behind that rather provocative headline, what the leader of the opposition seems to be planning is a consultation on the composition and size of a new chamber, as well as immediate reforms to the current appointments process. The preferred landing zone appears to be a new, elected, second chamber.

This is hardly the first time that we have seen proposals for Lords reform. Following the removal of the majority of the hereditary peers in 1999, we had the Wakeham Commission (2000), the Joint Committee on House of Lords Reform (2002/3), and the 2012 House of Lords Reform Bill, all of which were unsuccessful.

Given this, it is worth reflecting on why we find ourselves in the position of having a half reformed House, which still contains a mixture of experts, hereditary Peers, bishops and political appointments. In short, reforming the House of Lords is not as easy as it sounds and there are a variety of reasons why governments may have decided against finishing off the job.

One of the most compelling reasons is the challenge to the primacy of the House of Commons. If the chamber is elected, particularly via a system of proportional representation, then people will pose the question: why should the second House merely act as a revising chamber?

At present, there are a number of restrictions, contained in legislation and conventions, which constrain the Lords. These include the Parliament Acts, the Salisbury Convention and Commons primacy over matters of legislation with financial implications (which means that the Commons can pass what are often described as ‘money bills’ without the consent of the Lords).

Proponents of change frequently argue that it would allow the nations and regions of the UK to be better represented. But this presents its own challenges. First, there may be a conflict between those seeking to have a chamber elected by proportional representation and those looking to institute a more federal system.

Second, one would have to define how this new second chamber would interact with the Scottish Parliament, the Welsh Senedd and the Northern Ireland Assembly. In particular, some might argue that taking such an approach would leave the nations overrepresented (and risk re-opening the English question). Given that the nations already elect Members of Parliament to the Commons and their own parliaments, there may well be a danger that this would also have an impact on the quality of candidates, for what might become a third-choice legislature.

Abolishing the current model may also have some other clear downsides. Most obviously, a potential loss of expertise. What do reformers propose to do with the current experts in the House of Lords, many of whom will have no interest in electioneering? These include retired senior judges, and practising scientists, doctors and lawyers, some of whom sit on expert select committees. Are they to be ejected in favour of new elected members? Will the government be restricted to picking elected politicians as Ministers – and might this have an impact on competence and experience?

Finally, one might question whether reforming the House of Lords in the manner described above would really have a positive outcome of the quality of its outputs. Many legitimate complaints can be made about the current system. Yet the House of Lords has often improved the quality of legislation, and peers contribute to a number of constitutionally important select committees, such as the Constitution Committee, Joint Committee on Human Rights, Delegated Powers and Regulatory Reform Committee and International Agreements Committee.

With the introduction of electioneering and the reinforcement of party politics, something significant might be lost. Notably, I suspect that such a move would have a negative impact on the collegiality and co-operative nature of the Lords.

At a moment, when there are so many other fissiparous conflicts in our political system, many of which have a constitutional dimension, further reforming the House of Lords also has the risk of being a needless distraction. It could take up a disproportionate amount of time and effort in the legislative programme of any new government.

Ministers and governments have limited bandwidth and, at a moment when the UK needs to resolve important questions relating to Brexit and the cost of living crisis, this could potentially look like navel gazing in the Westminster bubble.

Moreover, in my experience of working in the Lords, I found that most peers I dealt with were diligent, hard working and knowledgeable. There is a real danger of reforming in haste and repenting at leisure. And it is far from clear we have posed the essential question: what do we want the second chamber to do?

This is not to argue that nothing should be done. However, precedents suggest that incremental change is more likely to be successful than abrupt transformation. Lord Grocott has frequently proposed ending the by-elections by which departing hereditary peers are replaced. This would result in the eventual removal of the hereditary peers from the Lords. While they often make an important contribution to the work of the House, the continued retention of the hereditaries is hard to defend and, if a new government got behind such a Bill, it would surely pass without sustained opposition.

The removal of the majority of the Lords Spiritual (the 26 bishops who sit in the House of Lords) would also be a positive step to reflect the changing times and reduce the size of the House.

Additionally, it is arguable that the House of Lords Appointment Commission should be given further powers to ensure that unsuitable candidates (for example those who are subject to disciplinary investigation in the House of Commons, at work, or elsewhere) cannot be forced through as political appointees.

A step-by step approach, which reflects the more successful attempts at Lords reform such as the House of Lords Reform Act 2014, which provided for Members to retire on a statutory basis, and the House of Lords (Expulsion and Suspension Act 2015), would enhance the legitimacy of the House of Lords, without impinging on the positive contribution that it currently makes to the governance of the UK.

By, Alexander Horne, barrister and visiting professor at Durham University. He previously worked as a parliamentary lawyer in both Houses of Parliament (2003-2021). 

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