23 Mar 2015
"The cure for admiring the House of Lords was to go and look at it" recalled Walter Bagehot in 1867. The problems associated with the upper house have undergone three periods of reform since that time, with regard to both its powers and its composition. The two are, of course, interconnected but composition is perhaps the more fundamental of the two, since the composition of the Lords, and therefore its perceived degree of democratic legitimacy, largely determines the power it should legitimately wield. One therefore needs to examine the problems created by the current composition of the Lords, and to evaluate whether there exists a more preferable alternative to the status quo. Yet in order to do that, it is necessary to determine what role the House of Lords should fulfil in the political process.
The role of the second chamber in a bicameral legislature varies from country to country, but in the UK the House of Lords should seek to fulfil three separate constitutional functions. Firstly, it should act as a delaying device on government legislation. This is not to say it should always seek to amend, or even reject, proposals that arrive from the lower house, but rather it should simply offer an opportunity of time for the public to become aware of the proposals and their consequences, as well as permitting various interest groups the time to reflect and to mobilise their lobbies in response to any objections they might seek to raise. Lastly, as Archer argues succinctly, such a delaying function as fulfilled by the Lords "protects the law from an ephemeral rush to judgement in response to a particular dramatic event".
The second role that the House of Lords should undertake is to scrutinise government legislative proposals in more detail than is currently achieved by the House of Commons or its standing committees. Evidence suggests that such standing committees are sparsely attended and frequently omit large sections of a given bill from detailed examination, and therefore the Lords fulfil a vital role in ensuring that the legislative program is thoroughly examined. As a result of the Life Peerages Act of 1957, it is now not unreasonable to argue that the Lords is more abundantly equipped with technical expertise than the lower chamber and, as such, bills may be improved by revision. This is particularly necessary where proposals have been subjected in the Commons to amendments drafted in haste by government ministers, in response to criticisms and compromises from both MPs and outside interest groups. This charge of rapidly imposing an ill-thought-out legislative agenda is one that is frequently levelled at the New Labour government, whose ambitions have led to an unprecedented number of new bills being forced through Parliament across different parliamentary sessions.
Finally, the upper chamber must seek to protect those constitutional principles which are fundamental to our democracy. The Parliament Act of 1911 removed the absolute veto over legislation which the Lords had previously enjoyed, entirely deprived the Lords of its powers over any bill certified by the Speaker as a money bill and introduced the idea of a suspensory veto whereby any law passed in three (later two post 1949) successive sessions would receive Royal Assent regardless of Lords' objections. Yet the Lords continue to retain certain absolute powers. Perhaps most importantly, it remains able to reject any bills proposing to extend the life of Parliament beyond the statutory five years. In addition to this fundamental right, the House of Lords' consent is required by a government seeking the dismissal of a High Court judge, Appeal Court judge or a judge of the new Supreme Court. The upper chamber thus offers some protection against a government seeking to subvert either the electoral or the judicial process. This function of constitutional protection, although limited, is nevertheless of great importance, since Britain lacks a codified constitution guaranteeing regular elections and the independence of the judiciary. Without the House of Lords therefore, there would be a dangerous gap in the political system; it is the only body which can prevent a transient majority in the House of Commons from extending its own life or dismissing a judge whom the government finds inconvenient.
In order to fulfil these roles effectively, Alexandra Kelso argues that any upper chamber in a liberal democracy must be considered legitimate. In order to be legitimate, she argues that the chamber must have 'input' legitimacy, and 'output' legitimacy. The former stems from "the control exercised by the public in determining [the chamber's] nature and composition", while the latter concerns the degree to which the "institution performs its particular functions within the broader political system and meets the needs of the public' (ie, those requirements detailed in the three roles listed previously). Clearly, the House of Lords in its present state, having undergone the reforms of 1999, suffers from input illegitimacy. Despite the removal of the vast majority of hereditary peers, that 92 still retain their seats in the upper chamber must strike any impartial observer as an anomaly; no modern day parliamentary system can claim democratic legitimacy at a time when members of the legislature owe their positions to an accident of birth. There are arguments proposed in their defence which insist that by virtue of their entrenched positions, they are less likely to be affected by short-term political decisions and as such can propose solutions which are of benefit to the country in the long term. Yet such problems are already resolved by the Life Peerages Act of 1957, which allowed government to nominate life peers who would be as equally unaffected by such short-term thinking. Hereditary peers were evidently aware of their limited legitimacy in objecting to legislation emanating from a democratically elected chamber, for the frequency of rebellion against the commons prior to 1999 was relatively low. However, since their removal, the propensity of the upper chamber to reject both bills and amendments has markedly increased, as the newly reformed house clearly now sees itself as more democratically legitimate. According to the Constitution Unit at University College, London, the Lords rejected clauses put forward by the commons a total of more than 350 times in between 1999 and 2007. Furthermore, a vote to oppose government legislation cannot be carried by one party alone anymore in the way that it could when the Conservatives enjoyed a majority in the Lords; the upper house's verdicts nowadays, therefore, carry more weight. Around 40% of the defeats that the government has suffered since 1999 have been accepted by the government.
Further input illegitimacy could also be argued to be evident in the right of Church of England officials to sit in the Lords. The objection is straightforward: why should the claim of the church to representation be greater than that of any other interest group? In an increasingly secular age, it is persuasive to argue that no religious group should be entitled to such representation. Alternatively, were one to reject such secular reasoning, then one must accept that provision should also be made for the representation of other churches and religions.
How, then, to solve the problem of input illegitimacy? The Royal Commission on Reform for the House of Lords was required, by its terms of reference, to have regard 'to the need to maintain the position of the House of Commons as the pre-eminent chamber of Parliament'. This essay wholeheartedly agrees with this principle, but in so doing seeks to argue that as a direct result of this term of reference, the upper chamber cannot include any representatives that are directly elected. This does not necessarily compromise Kelso's input legitimacy requirement however, providing that one were to accept that representatives are still democratically legitimate even if not elected directly. If the upper house were to be 100% appointed by party leaders and the crossbench peers by the Independent Appointments Commission, the make-up of which lies in the hands of democratically elected leaders in the House of Commons, then input legitimacy could be maintained. The principle that no party should gain an overall majority should also be retained. Furthermore, peers that were appointed for the express purpose of fulfilling a government role, such as Lord Adonis or Lord Sugar, should relinquish their seats in the upper house when their services are no longer required in the role for which they were appointed. Should they feel that they are able to offer further service to Parliament, they could request their names be put forward for a more permanent position by the party leaders, or else hope to be nominated by the Appointments Commission. It is of course tempting to argue for an elected element to the upper chamber, but one quickly falls into the traps illustrated by Bogdanor: briefly, a fully or majority elected chamber risks being more legitimate than the House of Commons, both as a result of the electoral system used, the terms of representation and timing of an election; furthermore, such a chamber would also suffer from the lack of technical expertise that so helps the current House of Lords hold the Commons and government legislation to account; a minority elected chamber risks subsiding into a two-tier chamber, whereby it might be felt that democratically elected representatives have a higher degree of legitimacy than their appointed counterparts. This essay maintains therefore that the only attractive option for House of Lords reform is to maintain a 100% appointed chamber, while removing any remaining hereditary peers, as well as those representing the Church of England, from the chamber.
Having made a proposition as to the most preferable composition of the Lords, and argued that it confers to Kelso's definition of input legitimacy, one must proceed to output legitimacy, and examine the case for reform with regard to the powers of the upper house. In order to justify reform from the status quo, one must persuasively argue that an upper chamber formed along the lines outlined above either would not have sufficient power to fulfil the roles expected of it, or else so much power as to lead to a danger of the Lords becoming more powerful than the Commons. The reformed, more-legitimate Lords would be able to continue to delay legislation, although it is important that its powers remain limited to a suspensory veto. The directly elected house must never be perpetually constrained by one which is not directly elected. Secondly, a house which is 100% appointed, with a greater number of cross-bench peers, would be able to fulfil the second function, scrutiny of government legislation, to a higher standard than before. Given that the suspensory veto would be maintained, this too is a positive step which would not grant the Lords undue power. Finally, providing that the current absolute rights of the Lords are maintained, the upper chamber would be able to continue to fulfil its final constitutional role. Output legitimacy is maintained.
The composition of the upper house will always have a direct result on the legitimate use of its powers. The current House of Lords lacks input legitimacy as a result of the continued presence of both hereditary peers and representatives of the Church of England. Furthermore, the gift of a life peerage allows recipients to act largely with impunity, while the House is also in danger of becoming a graveyard of ex-government employees. The introduction of a term limit could solve the first problem, while forcing government ministers in the Lords to stand down following completion of their role could solve the second. By only slightly amending the Lords' composition, then, one can confer input legitimacy House of Lords, which would in turn make the use of the powers of the House, already sufficient for the completion of its constitutional duties, both more effective and more legitimate.
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