Update-Please note that Rebecca Long-Bailey provided more detail about her proposals after our original blog went live. We opted to keep the original post up, as we felt that in any debate around the future of the House of Lords, it was useful to have a discussion of unicameralism versus bicameralism. Whilst the statements by Rebecca Long-Bailey have reignited interest in the Upper Chamber, there are of course other positions and other voices in a wider dialogue about our constitutional future. There are even rumours reported in the press that the Prime Minister Boris Johnson is considering a radical change for this ancient institution, and is looking at moving the House of Lords to York. We should stress that at the time of writing, it is far from clear that these claims are well-founded, and there certainly has been no official statement to that effect.
Returning to the contender for the Labour Party leadership, Long-Bailey has now fleshed out her position, and put forward the suggestion of an elected senate, based outside of London and elected by proportional representation. This raises a number of fundamental questions, such as what would be the precise function of this new Senate? Would it remain primarily a revising Chamber, or would be intended to exercise powers equal to the House of Commons? When would the elections take place? Would they have the same or a different cycle from that of the Commons? How would it change our understanding of the institution and powers of Parliament, and the role of the Crown? We await developments with interest: nobody could complain that this is a boring time to be studying Constitutional Law!
Earlier this week Labour leadership candidate Rebecca Long-Bailey announced her desire to abolish the House of Lords, which caused something of a stir in the press. Long-Bailey’s argument was essentially that the presence of wholly un-elected people in the legislature is undemocratic. Furthermore, she regarded the Lords as both unrepresentative and out of touch, making them unwelcome dead weight in the already over-inflated Westminster bubble. How justified is this perspective? What is the function of the Upper Chamber and the peers who populate it?
In the Middle Ages, Parliament was composed of those with a stake in the kingdom in terms of wealth and property, and whilst it is true that the Church taught that there was a divinely appointed hierarchy with the Monarch at the top, on a practical basis, royal rulers were always entirely dependent on the support of the aristocracy, because they supplied armies and revenue. By the end of the XVII century, kingly power had been eroded still further, and quite frankly, following the execution of Charles I, the effective sacking of Richard Cromwell as second Lord Protector, as well as the eviction of James II by an invasion force which parliamentary grandees had invited, there wasn’t much room for doubt about who was top dog in the British Constitution. From 1688, if not before, it was crystal clear that Parliament wielded the supreme and decisive power.
Nevertheless, the nature and make-up of the legislature changed over time. In 1800 it might still be said that the House of Lords was every bit as powerful and influential as the House of Commons. If anything, it was apt to dominate the legislative procedure, and it was not uncommon for Prime Ministers and most of their cabinets to be members of the Upper House. However, by the end of the nineteenth century the United Kingdom had re-branded itself not just as a constitutional Monarchy, but more importantly as a liberal democracy, and as a result, the exercise of power on the basis of hereditary claims was no longer flavour of the month. Under these circumstances, the Head of Government, Lloyd George, forced through the Parliament Act of 1911, which forever changed the balance of power between the two Houses. Instead of an equal, on the whole, partnership between both Chambers, the Upper House became subordinate to the elected House of Commons, whilst its power of legislative veto was watered down to one of delay, and the Lords could no longer block bills which the Commons had approved. These new delaying powers of the Upper Chamber were diminished even further a few decades later, with the enactment of the Parliament Act 1949.
The twentieth century witnessed a number of other reforms and changes. Of particular significance was the House of Lords Act 1999, which drastically reduced the number of hereditary peers to 92, meaning that the majority of members are now life peers, appointed by the Crown at the nomination of the Prime Minister (and by Convention the Leader of the Opposition also proposes a certain number of nominees each year). Life peerages had been acknowledged for the first time in 1958. Some of them are political, and allied to a party (although the party system is much looser than in the House of Commons), and the remaining life peers are independent “cross-benchers”, who are proposed by the House of Lords Appointments Commission. Moreover, there are two other small groups in the Upper Chamber: a very limited number of judicial peers, who are not problematic, as they will not be replaced once they leave, and 26 representatives of the Church of England, including the Archbishops of Canterbury and York. Obviously, both the Lords Spiritual and the aristocrats are controversial figures, and many people question the appropriateness of their presence. Furthermore, Life Peers are not immune from criticism, and the clear implication of Rebecca Long-Bailey’s comments was that at best the processes for selection favour traditional, white, male privileged elites (and at worst are dogged by cronyism and corruption).
It is fair to acknowledge that constitutionalists would agree that given a blank sheet of paper and a brief to design the legislature for a new nation State, no sensible ‘Parents of a Constitution’ would come up with anything which looked remotely like the current House of Lords. But this is not our situation, and for or all of the imperfections in the system for appointments, the House of Lords does boast a wide range of expertise, and leaders in many fields (e.g. Biology, Engineering, the Arts, etc) are represented. In addition, there is quite a spectrum of opinion of political, religious and moral views, and a general consensus that the debate is ordinarily well informed. In many ways, the House of Lords functions very well as a revising Chamber, spotting and ironing out problems within legislation, and it somehow operates like the (often annoying but sometimes life-saving) “Are you sure you want to do this?” box, which pops up on computer screens. It cannot ultimately prevent the Lower House from pursuing a course of action, but it can make them think about whether they really want to follow it through.
Given genuine concerns about the lack of social, geographical, ethnic and cultural diversity, and potential for inequality of opportunity inherent in the current selection process, combined with the anomalous position of both the Anglican bishops and hereditary peers, it does seem reasonable to put further reform on the table, but that reform doesn’t have to come in the shape of axing the House of Lords altogether. You could in theory deal with knee-pain by amputating the patient’s leg, but you might perhaps wish to pause and look at other treatment options first, before going ahead and lopping it off.
In fairness, the House of Lords is providing a useful function as a source of expertise, (ordinarily) measured debate and oversight of the legislative process, and bills can be scrutinised more thoroughly thanks to its contribution. Furthermore, whilst it may be undemocratic, the fact that its members are not dependent upon the goodwill of the electorate enables them to take a step back from short-term, political concerns. All of this would be lacking in a unicameral system.
At the same time, our present House of Lords is by design weaker than the Commons, meaning that there isn’t the potential for the two Chambers to be at destructive loggerheads, in the way which some other systems (e.g. the US) are apt to experience. The UK has bicameralism, but bicameralism-lite, which allows in some respects for the best of both worlds. The second Chamber can provide useful services, but there isn’t really the danger for bitterness and deadlock inherent in more full-blooded bicameralism, and it is potentially of even greater value at times when the Opposition in the House of Commons is weak for whatever reason. In circumstances such as the present, with a strong Government majority in the Commons and an Opposition in disarray, who is to provide a brake and a questioning voice?
Like the Opposition in the Commons when the Government has a solid majority, the House of Lords is in a position to highlight issues, air debate and demand that actual or potential pitfalls in policy are addressed. In much the same way as we have evolved to have two of some of our essential bodily organs, the Constitution has evolved to have two mechanisms for achieving these essential hands. It is handy to have two lungs and two kidneys, just in case one gets knocked out via illness or accident.
Needless to say, having organs, bodily or constitutional, has a cost in terms of energy and resources. There are reasons why nature hasn’t given humans two hearts or two livers, and we could make an argument that the House of Lords is an expensive luxury, rather than a necessity, but when it comes to steering the ship of state, is some back up a luxury, or simply good sense? The nature of the voting system for the Lower House in the United Kingdom, means that on most occasions (the 2017-2019 period was far from the usual pattern) we are faced with a strong Government and a weaker Opposition. This tends to adjust itself eventually, but do we want to leave any Government pretty much entirely off the leash whenever this happens? If we scrap the House of Lords altogether, presumably this is what we are agreeing to accept as the pay off.
Related Articles
Rebecca Long-Bailey wants to abolish the House of Lords The Guardian (12/1/20)
Rebecca Long-Bailey: replace House of Lords with an elected senate The Guardian (17/1/20)
House of Lords could be moved to York The Standard (17/1/20)
Life Peers UK Parliament website
