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Antifrank looks at what now for the House of Lords

October 27th, 2015

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The possible courses of action

So the House of Lords has opted for confrontation with the government by asserting its right to intervene on financial matters that are not covered by the letter of the Parliament Act 1949. In turn, the government, like King Lear, has threatened that “I will do such things — what they are yet I know not — but they shall be the terrors of the earth”. We’ll see.

It has long been recognised by pretty much everyone at every point on the political spectrum that the House of Lords is in need of reform. It has no democratic legitimacy and with the modern supremacy of life peers, following the Life Peerages Act 1958, it is now dominated by appointees. The rate of appointment has quickened in recent years. No research has been undertaken that I am aware of to determine whether this reflects an improvement in the quality of potential candidates or whether grade inflation has taken hold.

Since the turn of the century, three serious attempts have been made at reforming the House of Lords. In 2003, every single option put to the House of Commons was rejected. In 2007, the House of Commons voted in favour of either a House of Lords that was wholly-elected or where 80% of its members were elected. However, the (almost wholly-appointed) House of Lords voted in favour only of a wholly-appointed House of Lords. This impasse was not resolved.

In 2010, the coalition agreement went into some detail on this question:

“We will establish a committee to bring forward proposals for a wholly or mainly elected upper chamber on the basis of proportional representation.

The committee will come forward with a draft motion by December 2010. It is likely that this will advocate single long terms of office. It is also likely that there will be a grandfathering system for current Peers. In the interim, Lords appointments will be made with the objective of creating a second chamber that is reflective of the share of the vote secured by the political parties in the last general election.”

The proposals were duly put forward, but then Conservative backbenchers scuppered them, being hostile to the idea of single 15 year fixed terms for elected peers. The same problem keeps recurring: despite general agreement that the current state of affairs is unsatisfactory, every attempt at reform of the House of Lords founders on a complete lack of agreement on what should replace it.

There is an underlying question that is rarely addressed: what should the House of Lords be for? At present, it operates as a revising chamber. Under the Parliament Act 1911, the House of Lords can slow down legislation introduced by the House of Commons but it cannot stop it completely if the Commons is determined.

To date the two houses have rarely clashed. The House of Lords has only been overruled on seven occasions and it has given way on a further three occasions when the House of Commons threatened to use its final powers. The Parliament Act has only been invoked once under a Conservative Government (for the War Crimes Act 1991, if you’re interested).

Progressive governments have had to contend with truculent lords more often up till now. This looks likely to change for two reasons. First, the numbers have changed. Historically the Conservatives have controlled the House of Lords. Following 13 years of Labour government to 2010 and the stripping of the rights of the hereditary peers, this is no longer the case. Under the coalition it mattered less because the Lib Dem peers could be added to the Conservative tally. With the Lib Dem peers transferring on 8 May 2015 from the government to the opposition ranks, the Conservatives’ minority status in the House of Lords becomes much more important.

Secondly, both Labour and the Lib Dems look likely to be much more assertive in the House of Lords in this Parliament than previously. The Lib Dems have already signalled that they are breaking with the Salisbury Convention, under which peers do not seek to block legislation that is mentioned in the government manifesto. Labour under Jeremy Corbyn also look likely to be less respectful of conventions in the House of Lords (though Labour lords reaffirmed their observance of it as recently as June). The vote on tax credits confirms that neither party in the Lords is the least bit troubled by the spirit of convention and obligation – the previous statutory instruments voted down by the Lords concerned UN sanctions on Rhodesia as it then was, arrangements for the Mayoral elections in London (two different statutory instruments), supercasinos and changes to legal aid eligibility. The changes to tax credits form an integral part of the government’s budgetary plans and the decision to vote them down represents astepchange in the Lords’ willingness to intervene in matters central to government administration.

This probably reflects their Commons colleagues’ inability to mount effective oppositions. Nature abhors a vacuum and if the Labour party and the Lib Dems in the Commons are going to be ineffectual, others will feel the urge to step into the gap.

Let us assume for now that the Conservatives decide to take action as opposed to bluster: they need to determine what they expect from the House of Lords. There is as yet no sign at all of any serious thinking by the government as to how it should be reformed. MPs recognise uneasily that an increase in democracy in the upper house would lead to an increase in its legitimacy. They do not want to see a rival source of power develop (this approach is no doubt in the interests of MPs though it is not obviously in the interests of the country as a whole). So how can the government preserve the general balance of power between the two Houses of Parliament while clipping the wings of unelected peers?

The straightforward approach, as threatened by anonymous government sources, would be to ennoble vast numbers of Conservative time-servers to rebalance the House of Lords numerically rather than structurally. This would simultaneously look like gerrymandering and venal (and would place a strain on the vetting procedures that would probably result in timebombs of scandal detonating every few months for years to come). It would also risk drawing the monarchy into politics, so it looks like a complete non-starter to me.

If the upper house is to be elected but to have lesser legitimacy, the type of approach of providing for limited electoral accountability proposed by the Lib Dems in the last Parliament and kyboshed by Conservative backbenchers would work theoretically but now not politically. Given that full and regular elections to the upper house would fundamentally upend the balance between the two houses, I doubt whether the government could get them through Parliament even if it tried. Getting rid of the House of Lords completely would be still more controversial and I can’t see it being floated, still less enacted.

So what else might the government do? It might seek to enshrine in legislation the conventions that have operated to date but which now seem to be breaking down, adding new ones in for its own convenience (further restrictions on the Lords’ ability to block statutory instruments may suddenly look tempting). The government seems to be thinking along these lines if press reports since the vote are to be believed.

This form of limitation would be resisted strongly by the House of Lords and would probably need the Parliament Act procedures to be invoked. This type of constitutional change to the role of the House of Lords has a precedent. The Parliament Act 1949 was passed in just this manner. It would be an amusing inversion of the Salisbury Convention, since the Conservative manifesto stated explicitly that reform of the House of Lords was not a priority in this Parliament.

But it would satisfy the need for “something” to be done and it is a “something” that the government would have good prospects of securing. The government’s rage with the House of Lords is no doubt very real. It no doubt is seriously considering what revenge it can take on the vermin in ermine. But it isn’t the first government to look at this problem and it may well not be the last to conclude that it is all just too difficult. The  House of Lords’ days have looked numbered ever since the Parliament Act 1911. That number may still, however, be in the thousands.

 

Antifrank