Lords Reform: a constitutional Pandora's Box

The decisive Commons vote in favour of an all-elected Second Chamber must herald the beginning of the end of the House of Lords. No doubt there were some spoilers in the Aye lobby, but the fact that the only other option to achieve a majority was the proposal of an 80 per cent elected chamber, with all the remainder being decisively rejected, has created a degree of momentum for reform that did not exist before. Another train wreck was avoided, but the journey that lies ahead will certainly not be a smooth express ride it is far more likely to be slow and very bumpy with considerable uncertainty about the eventual destination.

Most observers were taken by surprise when MPs voted 337 to 224 in favour of an all-elected second chamber. An earlier vote had seen the 80 per cent elected option supported by 305 and opposed by 267. All the other options, of a 60 per cent elected, half elected and all appointed House, had been decisively rejected. Jack Straws favoured option of a 50:50 House was lost by the widest margin, 418 to 155.

The principle of a bicameral parliament was supported by 416 MPs and opposed by 163, but the great majority of those who voted for a single chamber parliament later voted for an all-elected House. Undoubtedly some saw this radical alternative as the one least likely eventually to succeed. Perhaps they were right to do so. Certainly the advent of an all-elected Chamber would make much previous discussion about reform irrelevant. No need to waste time elaborating how an appointments commission could be made truly independent. No argument would be necessary about how many bishops to retain or how to secure representation of other faiths.

Existing peers, be they hereditary or life, will disappear from the House cross-benchers too, whose continued presence has been widely supported in previous discussion on reform, will be virtually eliminated from this new Chamber. Awkward questions about the mixed credentials of members in a hybrid House are sidestepped if an all-elected chamber is created.

Such simplicity comes at a price. Replacement rather than reform means a new constitutional settlement must be worked out. All the talk about the importance of maintaining and adjusting existing conventions loses its relevance.

An all-elected House would be an entirely new Chamber. Its relationship with the first chamber would have to be defined and embodied in statute. Trying to give precise expression to an existing parliamentary culture that so readily accords primacy to the Commons, while ensuring that the new second chamber has a worthwhile role, will be a very difficult balancing act.

This is not the way the British Constitution has hitherto developed. The habit of incremental change, with existing institutions being gradually adapted to new roles while remaining recognisably the same institutions, is repudiated by this vote.

If relationships between the two Chambers have to be defined in detail by statute law, this probably takes us significantly closer to a codified constitution. In such circumstances the new Supreme Court would very likely become involved in regulating that relationship. A constitutional Pandoras Box is opened up by this vote.

Jack Straw, having seen his favoured option of a half-elected and half-appointed House so massively rejected, professed to be very pleased with the result. But he, more than anyone, must recognise the difficulties that lie ahead.

Not only must he now take his white paper back to the drawing board, but legislation to bring in a totally-elected second chamber will be a highly hazardous exercise.

The majority that favoured an all-elected House was by no means of one mind on the manner of election. The white paper proposed a partially-open party list system, but the Conservative opposition were adamant in rejecting this method of election because of fears of party patronage.

Who within the parties would decide which candidates emerged at the top of the party list? They preferred single member seats with first-past-the-post voting. But Liberal Democrats dismissed this system as antediluvian, while advancing their own preference for election based on a single transferable vote system.

Much disagreement was also expressed about the timing of elections. Jack Straws preference had been for elections by thirds concurrent with the European Parliament elections, with members serving 15-year terms. Others thought this far too long. Would 15-year non-renewable terms really allow for accountability to the electorate? And would this not deter younger candidates?

The gradual attenuation of Church and State would be taken a significant step further by the removal of all bishops from the second chamber. But of greater significance to the role of the Second Chamber would be the elimination of cross-bench peers.

Certainly in recent years much emphasis has been given to the expertise and experience of many cross-benchers. This has been one of the most distinctive features of the House of Lords, almost unparalleled in other parliament chambers around the world.

Any legislation to introduce an all-elected Chamber would have to determine the timing of the departure of existing peers. Should departures be enforced on life as well as hereditary peers? If so, at what rate? And at what financial cost? Before argument about salaries and expenses begins, some sort of compensation for existing peers evicted from their roles is likely to be considered necessary. Or should they all be allowed to remain until death? If that is done, what size of House would be appropriate, and how long might it take to reach that figure?

Should the new House contain ministers? Some argued that the main purpose of change must be to help adjust the balance between parliament and the executive, to strengthen parliaments scrutiny role. If so, shifting towards a separation of powers with ministers excluded may make good sense. Would this mean making government ministers from the Commons answerable in the second Chamber too?

Many matters will cause protracted debate and continued disagreement. Jack Straw has promised a series of working papers on aspects of reform. Even if all due haste was practised, it is almost impossible to imagine a scenario which sees legislation to the statute book before the next election. Apart from anything else peers have taken a very different view from that of MPs.

Once again the House of Lords, after its own mammoth debate following that in the Commons, voted decisively for an all-appointed Chamber and by 326 to 122 rejected the all-elected option favoured by the Commons. A clear majority of Labour peers who voted opposed an all-elected House, with Conservatives and cross-benchers overwhelmingly opposed, and only the Liberal Democrats in support.

Any Bill embodying the all-elected option would be strongly contested by the existing House of Lords. The government has an electoral mandate for reform of the House, but not for replacement. Faced with such a prospect, the House of Lords could wreck the governments legislative programme in the run up to the next general election. The electorate would be puzzled at the sudden urgency to give priority to such fundamental parliamentary change. Rather, the current parliament will see more all-party discussions, with an emphasis on staking out and defining proposals for the coming general election manifestos. The votes in both Houses set the context for that process. They create a new reality with which the political parties must now grapple. That will not be easy.

A majority of Conservative MPs rejected their partys official position favouring an 80 per cent elected House. And 85 per cent of Conservative peers who voted did the same despite the fact that their leader in the House, Lord Strathclyde, has been a clear proponent of this option. Some Labour MPs, including Sir Gerald Kaufman, a member of the Wakeham Commission, warned that they would not accept as binding any manifesto commitment to an elected House.

A more immediate battle might arise if the government go ahead with implementing the proposal to remove the remaining elected hereditary peers. A resolution to this effect was carried by 391 votes to 111, with a Conservative amendment to give effect to such removal only when elected members have taken their place in a reformed House of Lords being rejected by 329 to 241.

A Bill implementing this resolution might appear quite straightforward but, taken on its own, the House of Lords would almost certainly reject it. Even Labour peers would be unlikely to support a measure removing many highly respected figures from the Lords. The resulting depletion in the Conservative ranks in the House would necessitate some re-balancing.

The Labour government did not intend its 1999 House of Lords Act to result in a more assertive Second Chamber, widely perceived as possessing enhanced legitimacy. Perhaps this should be a warning. Constitutional reform has unintended consequences. If an all-elected Chamber were to arrive, one smaller than the House of Commons, with members serving significantly longer terms, and almost inevitably described as Senators, would it really remain the junior chamber?

Perhaps in years to come the fear expressed by many MPs that only non-entities would stand for election to the Second Chamber, and that special provision needs to be made to prevent its members from subsequently standing for the Commons, will look curiously misplaced.

Maybe the traffic will be in the other direction. Perhaps there are MPs who would regard becoming a Senator for Manchester or Glasgow for a single lengthy term a fitting climax to their political career.

Donald Shell's The House of Lords Today is to be published later this year by Manchester University Press.