A House of Cards?

In February the House of Commons voted in favour of an all-elected upper House. What would this mean in practice? The last reform of the chamber, in 1999, suggests that change can have unexpected consequences. Could the same thing happen again?

The 1999 reform removed the great majority of hereditary peers from the House of Lords. This was presented as the first step in a two-stage process. Those opposing change claimed that removing the hereditaries, the great majority of whom were Conservatives, was a hostile partisan gesture designed to weaken the chamber, and that stage two would never happen.

This was an exaggeration, but certainly many on the Labour side viewed the Conservative-dominated House of Lords as a potential obstacle to the new reforming government.

Both sides may have thought that reform would result in a weaker chamber, but in fact the opposite has proved to be the case. Since 1999 the Lords has defeated the government more than 350 times, and it is clear that peers feel increasingly assertive.

In a survey we conducted in 2005, 78 per cent of them believed that the reform had made the chamber more legitimate. Labour peers (88 per cent) were most likely to agree. This is unsurprising given the government’s claims during the reform debates that greater legitimacy would be one of the results.

There are clear reasons why the chamber now feels more legitimate. The reform ended the automatic birthright to sit in parliament, and removed many who never attended or had little interest in politics. More importantly, it resulted in a chamber that was far more politically balanced.

Since 2005 Labour has been the largest party, though the Conservatives are not far behind, and the balance of power is held by the Liberal Democrats and crossbench independents. In terms of general election votes, the chamber is now in fact more representative than the House of Commons.

This gives Liberal Democrat peers, in particular, confidence to use their position to extract concessions from government. When no agreement can be reached, the Lords is increasingly insisting on its position, and a string of major policies have been blocked, including limitations on trial by jury, creation of an offence of religious hatred, merging of the criminal justice inspectorates, reorganisation of local government, and many more.

In past weeks the conventions of the House have come under strain. A second reading of a government bill was effectively blocked for only the second time since 1999. Then the Lords voted down the statutory instrument on casinos — only the second such action since 1968.

But public opinion polls show that most people think the chamber is justified in blocking unpopular policies. Peers’ confidence is further boosted by this knowledge.

So the House of Lords is a substantially different chamber to that existing before 1999, even though it continues to be seen as ‘unreformed’. It is now an important site of inter-party negotiation, and increasingly influential in the policy process.

One reason this is not widely known is that the government does not celebrate its achievement, and instead remains fixed on further reform. But of course, to many on the Labour side it feels like little has changed — the Lords continues to defeat Labour governments. The difference is that a Conservative government would now also suffer the same fate — with defeats inflicted by a coalition of Labour and Liberal Democrat peers. Ironically, it is only when Labour finds itself in opposition that it will feel the benefit of its 1999 reform — if indeed the current chamber lasts that long.

So if the seemingly small change of removing the hereditaries has had such major consequences, what is the likely impact of further change to introduce elected members? The short answer is we cannot really know. Some effects are more predictable than others, but much depends on the detail of reform. Lessons from second chambers overseas (most of which are now elected) offer some insights, but culture, tradition and conventions are also extremely important.

The greatest certainty is that an elected upper house would be even more assertive. Whilst peers can claim a certain legitimacy — particularly due to the chamber’s party balance — they still remain cautious in using the powers they have. Bills are very rarely rejected outright, and the Lords still normally backs down eventually in disagreements with the Commons.

Elected members would almost certainly feel, and be seen to have, more justification to press their point. Accountability to the public might also bring a focus on different issues. In recent years, the chamber has been very active on civil liberties matters; election might focus greater attention on welfare policy, for example. However, that depends to a significant extent on the kind of relationships elected members form with their constituents.

Local accountability remains a highly contested issue, even amongst those favouring election. The government’s white paper suggested 15 year terms of office, with no right to stand for re-election. Such an arrangement would maximise freedom from the whips, and reduce incentives for constituency work — allowing members to continue to be relatively independent parliamentary specialists.

Familiarity with the House of Commons, however, makes many uncomfortable with these proposals because they reduce traditional forms of accountability. This may seem like a detail, and is something susceptible to amendment during the passage of any future Lords reform bill, but it could change the outcome fundamentally.

Similarly, the white paper proposed that those departing the second chamber should be denied the right to stand for the House of Commons for five years. Without this small measure the chamber could become like the Irish Senate — a training ground for future MPs.

Details are important, but so is convention. In Italy, where the two parliamentary chambers are elected on a similar basis, the parties traditionally select more distinguished professors, businesspeople and the like to run for the upper house.

There is no reason why the British parties should not adopt similar conventions, which could be aided if some existing peers choose to stand for election immediately after reform. On the other hand, selection under party list systems is generally associated with creating strong loyalty to parties, while the main alternative, the single transferrable vote (STV), tends to encourage constituency work.

An absolutely central but completely unpredictable element in determining the impact of reform is how the contrasting legitimacies of the two chambers would come to be viewed. It is universally accepted that they must be distinct from each other, and composed using different electoral systems. It is almost universally accepted that the second chamber should be elected by a more proportional system than the Commons.

In this way the chambers could be complementary, with no party able to gain a blocking majority in the upper house — in effect cementing the system we have had since 1999, but with legitimacy and accountability enhanced.

Just how legitimate the new chamber would be depends on views of the electoral system. Those who accept the legitimacy of the first-past-the-post system for the Commons, which brings together representatives of individual constituencies and relies on a majority of them to sustain a government, could happily continue to view the second chamber as subordinate.

But those who deny the legitimacy of this system and instead support PR could come to view the second chamber as the more legitimate. How opinion would divide on this is an important unknown. The perceived legitimacy of the chamber is also connected to the other unknowns just mentioned — the type of members selected and their links to both their parties and their electorates.

At its best an elected second chamber would therefore give extra negotiating power to a group of respected senior figures, who nonetheless ultimately continue to defer to the primacy of the Commons. This would strengthen the system of more plural politics created in 1999, where government has to build broad support to get its policies agreed.

At its worst an elected chamber could vie for primacy with the Commons in a destabilising way, and bring in members who are more partisan, less independent, and focused primarily on constituency service rather than parliamentary work. Both these futures are possible within the broad framework of an all-elected House.

Following the votes in February, the government has a major dilemma. The Commons’ support for an all-elected chamber has removed much of its negotiating power — for example, to retain any independent appointed members, who would coincidentally also dilute the democratic legitimacy of the House. This makes it more likely that a new deal on powers is necessary, as well as on composition.

But there is also so much disagreement on detail already, and so many crucial details to be agreed, that there are innumerable ways in which any future package could fall apart. It may be many years yet before elected members are really likely to be introduced. In the meantime, perhaps we should come to understand better the dynamics of the House of Lords post-1999.

That seems a minimal requirement before we embark on another journey into the unknown.

Dr Meg Russell is Senior Research Fellow at the Constitution Unit, University College London. She is leading an ESRC-funded research project on the post-1999 House of Lords