What is to be done with the second chamber?
Jon Lawrence |
- Reform of Britain's second chamber involves two connected issues: its composition and its function.
- The key stumbling block to reform has been that if the composition of the House of Lords is made more democratic, that might give it legitimacy to encroach on the function of the House of Commons.
- Historically, the Conservative Party, fearing the 'socialist' Labour party of the past, tended to prefer the introduction of elections to the Lords precisely to check the powers of a Labour majority in the Commons.
- Conversely, the Labour Party when in government tended to prefer appointments to the Lords to reinforce its ability to legislate as it saw fit with a democratic mandate in the Commons.
- New Labour seemed at first to have learned that the way past these two historic versions of deadlock was to separate the issues of composition and function. Thus it began by moving towards abolition of the hereditary principle in the Lords, while leaving the question of the powers of the reformed second chamber till later.
- However, Tony Blair's reversion to the Old Labour preference for appointment to the Lords has brought him up against the old deadlock of lack of cross-party support.
- Now New Labour is under increasing pressure to find a viable way forward, while opposition proposals for a second chamber with real powers to check the government look increasingly progressive and attractive.
- New Labour should overcome its inherent suspicion of the Lords and create a predominantly-elected second chamber with real power to scrutinise the actions of the government.
For Blair and New Labour, reform of the House of Lords remains unfinished business. In 1999 the government transformed the composition of the upper house by removing all but 92 of the hereditary peers. This was trailed as the first stage in a more thoroughgoing modernisation of the second chamber, but the government has struggled to build a consensus even within its own ranks about the final form that reform should take. This should not surprise us. Reform of the upper house has been 'unfinished business' since the great constitutional crisis that culminated in the Liberals passing the Parliament Act in 1911. That bill focused on curtailing the power of the Lords to veto legislation originating in the Commons, but it was explicitly presented as the first stage in a process of reform that would move on to address both the composition of the Lords and its long-term relationship with the Commons. At various points thereafter the political parties have returned to the thorny question of reform of the second chamber, but attempts to find a cross-party consensus on the composition and powers of the house have always failed. In 1949 Labour contented itself with further reducing the Lords' ability to delay contested legislation from two years (from second reading) to one. Conservative reforms in 1958 and 1963 tinkered at the margins, by allowing first life peers and then hereditary peeresses to sit in the Lords, but no one imagined that these innovations represented a final solution to the question of reform.
The problem was that, whilst even by 1918 most politicians agreed that the hereditary principle was no longer defensible as a qualification for parliamentary office, the parties were fundamentally divided over the proper function of a second chamber. Worse, they also recognised that under Britain's un-codified constitution questions about composition and function were inextricably linked. If the composition of the Lords became more 'democratic' then its legitimacy would necessarily increase, and it would become better placed to challenge the will of government as enshrined in Commons legislation. Understanding the troubled history of Lords reform can tell us much about the present impasse, and perhaps even about how it might yet be resolved if Labour can shake off its historic fears of bi-cameral (two chamber) government.
Conservative and Labour deadlocks
In the aftermath of the 1911 Act, Conservative politicians generally looked to reform of the House of Lords as a means of restoring the constitutional checks and balances that had once characterised the British parliamentary system (and which America's 'founding fathers' had sought to replicate, in a more systematic form, in their own state and federal constitutions in the late eighteenth century). They assumed that if the Lords could be made more genuinely representative, notably by diluting or even abandoning the hereditary principle, then it would prove possible to restore genuine bi-cameral government. When Labour emerged as the principal party of the left after the Great War, Conservatives became even more fearful about the dangers of an unchecked lower house. Should Labour secure a parliamentary majority, there would be nothing to check it legislating for the destruction of empire and the overthrow of private property. Only the royal veto, which had remained unused since 1708, would be able to prevent the legal implementation of socialism - and no one wished to see the monarch's powers tested to destruction in a bid to thwart a popular Labour government. However, despite holding a Commons majority for all but three years between the wars, the Conservatives proved unable to implement second-chamber reform. There were many reasons for this failure, but perhaps the greatest was that raising the question of Lords reform, especially if this meant increasing the powers of the Lords, seemed certain to furnish Labour with just the sort of populist cry against 'class privilege' that could help it to secure majority power in the Commons for the first time. Ironically, it was ultimately the Conservatives' deep fear of unbridled popular democracy that prevented them from doing anything to check the power of the democratically-elected Commons. If they were to contain the socialist challenge it would not be by clever constitutional reforms.
Labour, by contrast, displayed little sympathy for bi-cameral government, and consistently resisted attempts to dilute the power of the Commons. As Miles Taylor has argued, for most of the twentieth century Labour took an essentially pragmatic approach to constitutional reform, prioritising measures that would increase the efficiency of parliament as a legislative machine capable of building the socialist 'New Jerusalem', whilst showing little interest in other, more 'abstract' constitutional questions. In consequence, many Labour leaders were drawn to the simple solution of a pure, single-chamber democracy and hence to abolition of the Lords. Those who resisted this logic tended to argue that the sheer volume of new legislation justified a chamber of scrutiny, but they too were determined that it would not come to rival the power of the Commons. Hence Labour's decision in 1949 to plump for a new Parliament Act reducing the powers of delay - itself forced through using the provisions of the 1911 Act - in preference to pursuing a cross-party compromise that would have necessitated, at a minimum, preserving the Lords' existing powers of delay. In the late 1960s Labour returned to the question of 'modernising' the Lords when Leader of the Commons Richard Crossman sought to steer through legislation that would have simultaneously further reduced the power of delay to six months and stripped the hereditary peers of all voting rights. But this time reform came unstuck thanks to Crossman's insistence that the new, wholly-appointed upper house should have a permanent government majority sustained by prime-ministerial patronage. For he believed that the imperative of legislative efficiency demanded a more presidential style of government, but enough Labour backbenchers baulked at his open disregard of the traditions of parliamentary government for the proposals to fall in the Commons.
New Labour... new deadlock
When New Labour took up the issue of reform again in the 1990s, after more than a decade advocating outright abolition from the wilderness of opposition, it showed clear signs of having learnt from the failures of previous governments. From the outset Blair declared that Labour would initiate a staged process of reform. It would begin by removing the anachronism of hereditary peers sitting in a democratic legislature, and would postpone the more difficult question of determining the final composition and powers of the reformed house. It seemed as though New Labour had managed to decouple the questions of composition and function. But fearing a prolonged battle with the Lords over their plans, and recognising the difficulty of selling a wholly-appointed upper chamber to a sceptical public, in 1999 the government compromised by allowing 92 hereditary peers to remain in the Lords until the process of reform was completed. Two years later it was the late Robin Cook who took up the challenge of completing the reform process, and we can learn much about the limits to New Labour's constitutional radicalism from his published diary The Point of Departure. Cook clearly hoped that he had been made Leader of the House because Blair wanted to revitalize the New Labour project by doing something bold and radical with constitutional reform. In the diary, we see Cook constantly frustrated by his inability to secure proper ministerial discussion on the issue of Lords reform, but throughout he continues to hope that, at the very least, Blair will not move to scupper his plans for a significant democratic dimension to the reformed second chamber. However, in the end he was to be sorely disappointed. As a free vote on the question loomed in early 2003, Blair intervened decisively against the elected principle and the party whips took their cue. Blair shamelessly mobilised the Old Labour argument that strengthening the legitimacy of the Lords would threaten the supremacy of the Commons, though he was not brazen enough to follow Crossman's cue by championing the supremacy of government. Blair's own preferred option of a wholly-appointed second chamber was still roundly defeated in the Commons, but enough Labour MPs were swayed to prevent any of the six tabled options winning majority support - although the motion for an 80-per-cent-elected upper chamber fell by just three votes.
At that point, one suspects the government would have liked to have followed in the footsteps of its predecessors by quietly dropping the whole question, but that was not an option. The manifestly interim nature of the 1999 compromise, coupled with unambiguous pledges to continue a 'process' of reform, made it all but impossible for the government simply to bury the issue of the Lords. In September 2003 it tried to resolve the matter by suggesting that there might be a second interim stage in the reform process. The plan was to deal with two supposedly uncontentious issues - the removal of the remaining 92 hereditary peers and the reorganisation of the Appointments Commission as a statutory body responsible to parliament. If successful this scheme might well have buried Lords reform as a live issue since the two most obvious anomalies of the 1999 compromise would have been resolved. However, it was never practical politics. There was an immediate outcry that the government was proposing to renege on its 1999 pledge to retain the 92 hereditary peers until a final solution had been agreed. In the white paper proposing this interim solution Lord Falconer described reform of the House of Lords as 'one element of a radical programme of constitutional renewal that this Government has put in place since 1997', but it was very hard to see anything very radical about creating a wholly-appointed second chamber of life peers with limited constitutional powers. According to Lord Falconer it was the government's responsibility 'to shape a consensus to make the second chamber more legitimate and more representative of our society'. But the government's dilemma was clear: 'legitimacy' appeared to demand a second chamber with a large elected element, but introducing the elective principle on a large scale threatened to undermine both the deliberative character of the Lords and the uniqueness of the Commons.
What sort of elections?
Even now one imagines that both the government and the Lords would favour the most modest reform possible - if they could get away with it. Blair may have come to accept the inevitability of conceding an elected element, but, like their Lordships, he will not find it easy to swallow a majority-elected second chamber, the preferred outcome of both main opposition parties and probably most of Labour's backbenchers. When the Lords voted on the options for reform in 2003, they strongly endorsed the prime minister's preferred option of a wholly-appointed chamber. The cynic might dismiss this as a classic example of turkeys voting to cancel Christmas, but that is only part of the story. Life peers, including Labour's own stalwarts in the Lords, are certainly hostile to reforms that threaten them with a radical culling, but they are also genuinely fearful that introducing elections will transform the character of the second chamber. Elections, they argue, will oblige members to court popularity and to promote constituents' interests - activities difficult to reconcile with the deliberative and revising role envisaged for the House. This is not an argument that should be dismissed lightly. If, as seems probable, the Commons votes for an upper house that is between 60 and 80 per cent elected, then it will require considerable legislative ingenuity to come up with a system that simultaneously preserves the scrutinizing functions of the upper house and ensures that it does not become either a clone of, or a rival to, the Commons.
Perhaps predictably, advocates of a democratically-elected upper chamber do not spend much time picking over these thorny problems in public. It is self-evident that election is better than appointment, especially with the 'loans for peerages' scandal still unresolved, so why confuse the issue by dwelling on technical issues such as mechanisms for election, or worse, the need to dilute democratic accountability in order to create a more independent, deliberative house? Thus whilst the Liberal Democrats have recently reiterated their commitment to a predominantly elected upper chamber, calling for a 'modern senate' to be established within five years, there is almost no mention of the policy on the party's website. It appears that the Liberal Democrats envisage a house of 450, with all but 90 of its members directly elected by proportional representation. Perhaps more strikingly, they envisage rolling elections, with one-third of the senators up for election every four years, meaning each senator will sit for a twelve-year term. This is democracy, true, but not as we know it. Indeed, if the senators are made ineligible for re-election after twelve years, they will effectively be as immune from democratic pressure as members of the US Supreme Court. For the government, Jack Straw also appears to favour a system of rolling election, although with the introduction of the elective principle phased in slowly over the next three general elections, and with perhaps as many as 40 to 50 per cent of places reserved for appointed members. Members of the upper house would therefore still serve long terms, potentially as long as fifteen years, but these would be linked to the uncertain cycle of general elections, in contrast to the Liberal Democrats' fixed term tenure.
However, with any such scheme much will hinge on the mechanism of election, and especially on whether elected 'senators' will represent distinct geographical areas. If so, should representation be linked directly to population (as in the Commons), or should it deliberately violate this principle along the lines of the US Senate where each state elects two Senators regardless of population? The Liberal Democrats have suggested that the regional constituencies used for elections to the European Union could be adopted, but, with the obvious exception of Scotland and Wales, these have little resonance with the public, and no clearly defined local interests to defend against state encroachment. Moreover, since regional elections to the EU broadly uphold the principle of proportionality it might prove difficult to deviate from that system for elections to a newly constituted Senate. Another idea would be to give two seats to each county, metropolitan borough and unitary authority: this would have the advantage of locking the second chamber firmly into localities that have real meaning for voters, without replicating the Commons. One thing seems clear: however it is chosen, a reformed second chamber must be designed to minimise the chance of any party achieving majority power. In stark contrast to Crossman's position in the 1960s, Labour ministers have long conceded that the government of the day should not wield a permanent majority in the upper house. One virtue of nomination is that it makes it easier to preserve political balance, although Labour argues that this should mean adjusting electoral outcomes to ensure that the government will form the largest party in the upper house. Again, not a principle we are likely to hear shouted from the rooftops.
But perhaps the key issue concerning the mechanics of reform will be how tightly the parties control the election process itself. If devolution is the model, Labour again seems likely to insist on ranked party lists of candidates, though perhaps only as part of a top-up system to ensure proportionality. This will naturally increase party influence over the composition of the upper house, discouraging the election of independents and party rebels, but if 'senators' serve terms of from twelve to fifteen years it seems doubtful whether even this will be sufficient to generate a pliant body. Some commentators assert that making the 'senators' full-time and salaried will tip the balance towards dependency, but this seems unduly negative for the same reason. What makes many MPs pliant is the combination of career ambition and fear that angering the whips may jeopardise their seat unless the local party is squarely behind their rebellion. Neither factor would apply for senators, especially if they are automatically debarred from re-election or re-appointment after serving their term. On the other hand, introducing salaries for sitting in the upper house would seem to be essential if the government is to realise its declared aim of making it more representative of wider society. Though this is another goal that, sadly, may well be easier to achieve through appointment than election.
What sort of powers?
Perhaps the most interesting feature of the current situation is the fundamental tension that exists between government and opposition over the powers that a reformed second chamber should wield. Here we find that the parties' positions remain little changed since the first half of the twentieth century. The Conservative leader in the Lords is on record as hoping that the reform process will increase the powers of the upper house so that it can 'hold an over-mighty government to account' - in essence restoring the checks and balances that once characterised the two houses of parliament. Similarly, the Liberal Democrats have made it clear that they no longer accept that the Lords should honour many of the informal conventions that arose in the post-war era to diffuse the potential conflict between Labour governments with popular mandates and a hereditary upper house with a permanent Conservative majority. At the same time, since 1997 Labour has become increasingly frustrated with the willingness of the Lords to defy the government, particularly on the sensitive issue of security legislation. Like their equally beleaguered forebears in both the late forties and the late sixties, Labour ministers want reform of the Lords to include a further circumscription of its powers. Ideally, they would like to see the maximum period for delaying Commons bills cut further, to just six months, but as a minimum they want the informal conventions of the post-war era codified in law. They see that the perceived legitimacy of the Lords has already increased since the removal of its in-built Conservative majority in 1999, and they rightly fear that further reform will only accelerate this process - emboldening the Lords, and leading to the eventual overthrow of all the unwritten conventions that currently limits its power. Hence Blair's appointment of Lord Cunningham to head a Joint Committee of the two houses to investigate the question of formalising these conventions in 2006. The government hoped that Cunningham's committee would endorse three key principles: that the Lords should not vote down government bills based on manifesto commitments (the so-called Salisbury/Addison convention of 1945), that they should not vote against secondary legislation (i.e. where ministers are exercising powers derived from earlier 'primary' legislation), and that they should not take longer than sixty days to consider a bill sent up from the Commons. But in November 2006 the Joint Committee rejected any such codification as unworkable, and worse, left open the question of whether reform of the Lords should be accompanied by an increase in its formal powers.
And so the government faces a profound dilemma. The manifestly temporary nature of the 1999 settlement makes it all but impossible to put the genie of Lords reform back in the bottle. Worse, from the government's perspective, partial reform has already encouraged the Lords to challenge many of the informal conventions that previously limited its power more stringently than the Parliament Act demanded. They would like to reverse this trend as part of a final settlement of the question, but there seems little prospect that they can win sufficient support for such legislation in the Commons, and none that it will be conceded voluntarily by the opposition parties or the Lords. On the other hand, Labour knows that if it fails to settle the question on its own watch there is, for the first time, a real danger that an incoming Conservative government will go even further - boosting the second chamber's credibility, and hence its ability to challenge government, by introducing a large elective element, and perhaps even by increasing its powers of scrutiny and delay. Whereas for decades it was all but suicidal for a Conservative to take up the issue of Lords reform and the restoration of bi-cameral politics, now both can plausibly be presented as progressive, democratic measures designed to rein in the power of a government returned to near absolute power with the support of barely one fifth of the population.
Only a fool would argue that the parties' positions on Lords reform remain wholly unchanged since the constitutional disputes of the first half of the twentieth century. Conservatives no longer fear that a Labour majority in the Commons might herald the legal overthrow of private property, and they have already presided over their own end of empire. Similarly, Labour appears finally to have abandoned the ideal of single-chamber democracy. On the other hand, it is surely significant that the Conservatives still hope that second-chamber reform might restore some of the checks and balances once integral to Britain's un-codified constitution, just as Labour remains determined to preserve the ability of a popularly-elected government to fulfil its manifesto commitments untrammelled by interference from the upper house. But whereas once this defence of Commons supremacy appeared as an unambiguous defence of democratic accountability, things are no longer so clear-cut. In an era when partisanship is low and ideological conflict has abated, the notion of 'checks and balances' no longer appears to be simply a clever ruse to tie the hands of democracy. Labour's historic commitment to maximizing the efficiency of parliament as a law-making body no longer seems compelling now divorced from the coherent vision of social and economic transformation that once under-pinned Labour politics. Instead, it is now all too easy for its opponents to portray Labour as a party obsessed with legislative power for its own sake. But it is not too late for Labour to change its spots. It can yet build on the genuine achievements of devolution and the Human Rights Act by carrying a bold measure of reform that will create a predominantly-elected second chamber with real power to scrutinize the actions of government. If it wants to demonstrate that New Labour remains in tune with the temper of the times, and above all if it wants to consolidate its historic reputation as one of the great reforming governments, then it can do no less.
The author would like to thank Geraint Thomas for letting him read some of his unpublished work on these issues.
Vernon Bogdanor (ed.), The British Constitution in the Twentieth Century (Oxford University Press/British Academy, 2003).
David Close, 'The collapse of resistance to democracy: Conservatives, adult suffrage and second chamber reform, 1911-1928', Historical Journal, 20:4 (1977), 893-918.
Michael Cockerell, 'The politics of the Second Chamber reform: A case study of the House of Lords and the passage of the House of Lords Act, 1999' in Nicholas Baldwin and Donald Shell (eds), Second Chambers (Cass, 2001), 119-34.
Neal R. McCrillis, 'Taming democracy?: the Conservative party and the House of Lords reform, 1916-1929', Parliamentary History, 12 (1993), 259-80.
Miles Taylor, 'Labour and the constitution' in Duncan Tanner, Pat Thane and Nick Tiratsoo (eds), Labour's First Century (Cambridge University Press, 2000).
About the author
Jon Lawrence is a lecturer in Modern British history at the University of Cambridge and a Fellow of Emmanuel College. He has written on many aspects of British social, political and cultural history from the mid-nineteenth century to the present. He is currently writing a book on electioneering and political communication in Britain since 1800, and has recently published a series of essays on political violence and the changing role of the public meeting in British politics. firstname.lastname@example.org.