Legislature II – The House of Lords
The House of Lords is currently a non-elected chamber. It plays a part in the legislative process but ultimately its powers are very limited. Nevertheless many argue that the quality of debate in the House of Lords is high and the House can sometimes effectively challenge the Commons.
The House of Lords is the older of the two chambers of Parliament. Historically, membership of the Lords was limited to hereditary peers and representatives of the Church of England. The judges of the House of Lords were appointed under the Appellate Jurisdiction Act 1876. Life Peers were introduced in 1958 under the Life Peerages Act. The House of Lords has been the object of reform for a long time. However, although some reforms took place in the 20th century, the overall composition of the House of Lords remained one determined either by birth or by appointment. That changed with the House of Lords Act 1999, which removed most of the hereditary peers from the House of Lords as the first stage of a modernisation programme.
For many years there has been opposition to the continued existence of the House of Lords as the second chamber in our present bicameral parliamentary system. Nevertheless the fact remains that a second chamber is needed to assist in the legislative process and the House of Lords performs the functions of a second chamber extremely well.
However, despite the success of the House of Lords in performing its functions it can be argued that the House is nevertheless restricted by its aristocratic and unrepresentative composition from exercising its powers effectively. In a democracy, it may be argued all legislators should be directly accountable to the people at elections or at least accountable indirectly, for example, by election by the House of Commons. Their Lordships, however, take their seats in the legislature either because they are hereditary peers or because they have been created life peers under the Life Peerages Act 1958. The former are criticised on the grounds that high office should be awarded to those who earn it on merit and not by accident of birth, and as most hereditary peers are Conservative this leads to a permanent Conservative majority in the House. The life peers are criticised because of the considerable powers of patronage left in the hands of the Prime Minister to reward party loyalists and retiring ministers with seats in the Upper Chamber. It is also thought by some that since the members of the House of Lords do not represent any body of constituents they speak for a small privileged section of the community.
As Lord Birkenhead once memorably said in debate to a member who annoyed him: `The noble Lord represents no-one but himself – and I don’t think much of his constituency’
a) The composition of the House of Lords
i) The Lords Spiritual: Archbishops of Canterbury and York, the Bishops of London, Durham and Winchester, and the next 21 diocesan bishops of the Church of England in seniority of appointment.
ii) The Lords Temporal:
• Hereditary peers and peeresses in their own right of England, Scotland, Great Britain and the United Kingdom,
• Life peers created under the Life Peerages Act 1958.
• Lords of Appeal in Ordinary. .
Arguments that the role of the House of Lords in the legislative process is an `affront to democracy’ focus primarily on the composition of the Lords. As an unelected body, comprised largely of both hereditary peers, whose status as members of the legislature is derived from blood rather than the ballot box, and of life peers (Life Peerages Act 1958), who are political appointees, the House is fundamentally unrepresentative.
b) The functions and work of the House of Lords:
The major functions of the House lie in scrutinising, amending and approving law-making proposals which have been passed by the House of Commons. Bills may also start their legislative passage in the Lords, a useful device for relieving time in the hard-pressed Commons. The powers of the Lords are limited by the Parliament Acts 1911 and 1949. These Acts provide that in relation to money bills (those bills solely concerned with finance), the House of Lords must approve the bills within one month. In relation to other bills, which are the vast majority, the Lords may delay a bill for up to twelve months over two parliamentary sessions, suggesting and negotiating amendments to the bill. After this period, if the Lords has rejected a bill twice, or amended it in a manner unsatisfactory to the Commons (which amounts to the same thing), the government may employ the Parliament Acts to overcome House of Lords’ opposition and go straight for the Royal Assent, which is the final requirement for making a bill an Act of Parliament
The actual and potential conflicts between the two Houses in the legislative process should not be overemphasized. While the Parliament Acts 1911 and 1949 set out rules under which the House of Commons may – in the face of sustained opposition in the Lords – present a bill for the Royal Assent without the Lords’ consent, the Acts are rarely used. The reason for this lies in the various constitutional conventions and practices which regulate relations between the two Houses, which together reduce the need to resort to the law.
The House of Lords provides a useful forum for debating the great issues of the day.
The Lords is also a debating chamber. Less controlled by the party whip system than the Commons, there is greater individual freedom in the Lords than the Commons. This freedom is also enhanced by the fact that the Lords are unelected, whether hereditary or appointed, and do not continue to hold their seats at the mercy of government. Once appointed, the Member’s position is secure. In the Commons, the time on the floor of the House is largely controlled by the government of the day, and dominated by the government’s need to get its legislative programme through Parliament within the annual session. In the Lords, however, time, while still restricted by legislative scrutiny, is less dictated by government need than by the Lords’ perception of matters of public interest which require debate. Government may find a particular issue morally sensitive or best avoided because of the political consequences. The Lords, not being politically accountable to an electorate, have no such qualms: ‘unpopular’ issues (unpopular with government, that is) or controversial matters such as euthanasia, abortion, embryo experimentation, poverty and welfare, housing and employment may get a better airing in the Lords than the Commons. The House of Lords also plays’ a role in the scrutiny of government, and in the scrutiny of European legislation and delegated legislation.
The House of Lords is the second or ‘Upper’ House. Unelected (as yet) and unaccountable, the Upper House is able to contribute to public debate and to subject legislation to an independent and often expert form of scrutiny.
The 1968 Government White Paper House of Lords Reform referred to seven functions of the House of Lords.
i) Its appellate role as the supreme court of appeal.
Firstly, the House of Lords acts as the final court of appeal for the whole of the United Kingdom in civil cases and for England, Wales and Northern Ireland in criminal cases. If the House were abolished therefore a new ‘supreme’ court would have to be established to take its place, unless of course the Court of Appeal were to become the final appeal court for England and Wales. However, as the judicial work of the House is separate from its other functions and only involves the judicial Committee – drawn from the Lord High Chancellor, the Lords of Appeal in Ordinary and Lords who hold or have held high judicial office – the separation of the judicial Committee from the rest of the House of Lords or its replacement by some new body would not perhaps cause too great a constitutional problem.
ii} The provision of a forum for free debate and matters of public interest.
Secondly, the House provides a forum for free debate on matters of public interest, Wednesday in particular being traditionally set aside for special debate on a wide range of subjects. Apart from the fact that these debates are usually of a very high standard; a standard that would perhaps never be reached in the Commons, even if the time were available, this loss would not pose any great constitutional problem.
The House provides a forum for free debate on matters of public interest. Wednesday is traditionally set aside for special debates on a wide range of subjects. Debates may be initiated either by the government, opposition, backbench or independent members. Once a month, from the beginning of the Session until the Spring Bank Holiday recess, there are two `Short Debates’, limited to two and a half hours each. The right to initiate such debates is confined to backbenchers and crossbenchers and the subjects for debate are chosen by ballot.
iii) The revision of Public Bills brought from the House of Commons.
Thirdly, and perhaps most importantly, the House acts as a revising chamber for Public Bills brought from the House of Commons. About one half of the time of the House of Lords is devoted to the consideration of Public Bills. The majority of this time is spent on revising Bills which have already passed the Commons, where the great majority of government legislation is introduced. The House of Commons does not have the time to fully debate all the legislation it has to pass each session and the use of procedures for the curtailment of debate, such as the guillotine, often means that Bills are passed by the Commons without really being considered at all. A second chamber is therefore required to examine and revise such Bills. If the second chamber is abolished then the procedures of the House of Commons for enacting legislation will have to be changed if the present standard and volume of legislation is to be maintained. This could be achieved by membership of the House of Commons becoming fulltime and by making even more use of committees. However, even then the volume of legislation may still prove to be too great, necessitating either a shortening of the procedure by which a Bill is enacted or making more use of subordinate legislation, which some would argue is already over used as it is. Certainly some fundamental changes would have to be made to the proceedings of the House of Commons and these may prove unacceptable to many of the present MPs.
The House of Lords serves a valuable purpose in scrutinising Bills passed by the House of Commons, with about one half of the time of the House of Lords devoted to the consideration of, Public Bills. This process is especially important because, unlike the Commons, the Lords have nothing corresponding to the guillotine and there is therefore no effective machinery for curtailing debate. Also the Lords have no provision for the selection of amendments for debate and therefore all amendments tabled may be debated. To some extent the House of Lords can compensate for inadequate scrutiny of legislation by the House of Commons. The powers of the House of Lords to prevent the wishes of the House of Commons are, of course, limited by the provisions of the Parliament Acts 1911 and 1949, under which certain Public Bills may be presented for the Royal Assent without the consent of the Lords: see the War Crimes Act 1991.
iv) The initiation of Public Bills.
The House of Lords does not stand idle at the start of a parliamentary session waiting for legislation to work its way up from the House of Commons. Bills which are relatively uncontroversial in party political terms have been introduced in the House of Lords with a fair degree of regularity. These include the Wildlife and Countryside Bill (1980-81 Session), the National Heritage Bill, Data Protection Bill and the Health and Social Services and Social Security Adjudications Bill (1982-83 Session). By convention all Consolidation Bills (Bills which do not alter the law but replace a number of Acts dealing with a particular subject by a single Act) and most Bills to give effect to changes in the law proposed by the Law Commissions, are introduced in the Lords.
Unlike members of the House of Commons, members of the Lords are free to introduce Private Members’ Bills into the House and there is usually sufficient time for them to be debated. However if they are passed there is no guarantee that time will be found for them in the House of Commons. The fact that the Lords have no constituents makes it easier for them to discuss measures proposing controversial changes in the law in this way. The Lords thus played a significant part in reforming the law relating to homosexuality and abortion.
v) The consideration of subordinate legislation.
Their Lordships also contribute to the scrutiny of delegated legislation. The powers of the House of Lords over delegated legislation were not curtailed by the Parliament Acts and are therefore the same as those enjoyed by the House of Commons. When a resolution of each House approving the instrument is required, the House of Lords always has an opportunity to debate the instrument. In the case of negative instruments, any member may move a motion to annul the instrument and while in the Commons time often cannot be found to debate such motions, in the Lords there is no such difficulty.
vi) The scrutiny of the activities of the executive.
The government departments will have representatives in the House of Lords who can be questioned about policy by peers in the same way that ministers can be questioned in the House of Commons. there may not be a debate. ‘Unstarred questions’ are taken at the end of business. The Lord asking the question makes a speech, and a debate may take place before the minister makes his reply, which concludes the proceedings. Private notice questions may be asked on matters of urgency. It is for the Leader of the House or as a last resort for the House itself, to decide what constitutes a matter of urgency. The process of question time in the House of Lords therefore provides a valuable adjunct to the procedure in the House of Commons.
vii) The scrutiny of private legislation.
c) House of Lords’ reform
Proposals for reform
The House of Lords Act 1999 represented the first stage of reform. The government established a Royal Commission, chaired by Lord Wakeham, to make recommendations for further reform. The Commission recommended in 2000 that the Upper House, having around 550 members, should comprise a majority of nominated members and a minority of selected or elected members representing regional interests. The white paper published in November 2001 stated, aim was to reduce the size of the House from 700 to 600 members over ten years, with 120 members directly elected and up to 332 members nominated by party leaders, with 120 non party (independent) members being chosen by the independent appointments commission. The number of bishops would be reduced to 16 from 26.
1) In relation to composition, three options were put forward.
Model A provided for 65 members selected by dividing up a regional allocation of seats according to each party’s share of the vote in that region at general elections, with one third of the regions selecting regional members at each general election. (this would achieve a House which is in part indirectly elected: the balance of members would be appointed by the statutory Appointments Commission).
Model B, supported by a majority of the Commission, proposed 87 members, directly elected at the same time as the European Parliament elections under a system of proportional representation.
Mode) C provided for 195 regional members directly elected at the same time as the European Parliament elections.
2) The powers of the second chamber would remain broadly as they are at present, with the second chamber being able to delay, but ultimately not to defeat primary legislation. The report recommends in relation to secondary legislation, the second chamber should be given power to delay their implementation and to voice its concerns. The power to defeat secondary legislation – which in practice is never used – would be removed.
3)On the system of nominations for the House, the Commission recommended that an independent Appointments Commission be established. The Commission would have eight members: three nominated by the main political parties, one nominated by crossbenchers (independents), and four independents, one of whom should be chairman or woman.
4)Establishing the Commission would sever the link between the granting of honours and the political patronage of the Prime Minister and government. Members of the House of Lords – the new name for which the Commission did not decide – would not be known as ‘peers’. The current system of granting of honours would remain, but would not result in membership of the House of Lords. The granting of a peerage is therefore no longer to be a precondition for membership of the second chamber. The remaining hereditary peers will cease to be entitled to sit and vote once the regional members join the second chamber. Hereditary peers will, however, be eligible to seek nomination as regional members or apply for appointment by the Appointments Commission. Regional members would serve for the equivalent of ‘three electoral cycles’ and appointed members should serve for a fixed 15-year term. The earliest the new system for regional members would operate would be 2004. The Commission recommended that existing life peers appointed before the publication of the report who wish to remain in the second chamber should be deemed to have been appointed for life, whereas life peers appointed between the publication of the report and the necessary legislation implementing the report’s recommendations should be deemed to be appointed for a 15-year term from the date of the award of the life peerage
5) The Commission will be under a duty to maintain balance in the composition of the House of Lords. The Commission should ensure that at least 20 per cent of the members are not affiliated to one of the major parties; it should be under a statutory duty to ensure that a minimum of 30 per cent of new members are women, with the aim of gradually achieving gender balance within the House.
6) It should also be required to attempt to ensure a representative level of membership from ethnic minority groups, and appropriate representation for all religious faiths
7) On remuneration, the Commission recommended that the financial arrangements be adequate to make regular attendance economically viable, and that remuneration should be linked to attendance in Parliament. However, payments made for time and lost income should be less than the basic salary of a Member of Parliament over an average session.
Criticism of the reform Proposals
I)the Wakeham Commission Report does foresee a second chamber with at least the same powers as the current House of Lords, and one which is broadly representative of British society.
2)In breaking the link between peerages and membership of the second chamber, the Commission has removed one of the most contentious aspects of the political honours system, in which membership of the second chamber is seen to be conferred for political services to the governing party.
3) Instead, the Commission seeks a second chamber which ‘should be authoritative, confident, and broadly representative of the whole of British society’, and whose members should have a breadth of experience outside the world of politics, skills and knowledge relevant to the careful assessment of constitutional matters. The Commission stated that its intention was to recommend proposals which were not only ‘persuasive and intellectually coherent but also workable, durable and politically realistic’.
1) The report’s recommendations are far removed from the aspirations of those seeking a democratically elected second chamber. That radical option foundered on the problem of the constitutional balance of power between two elected chambers, and the fear – which has always dogged reform of the House of Lords – that the Commons might lose its supremacy.
The issues which require careful evaluation include the following:
I On what basis should such a chamber be elected? Should it be on a regional basis, or on the same basis as the present House of Commons constituencies?
2 What voting system should be adopted? If it is to be the ‘simple majority system, the second chamber would be as ‘undemocratic’ as the first chamber. If it is to be by way of proportional representation, ‘the upper chamber would arguably be more democratic than the House of Commons, unless reforms were also to be introduced there.
3 If the second chamber were elected, what is the correct constitutional role of that house? Should the Parliament Acts remain in force, thus curtailing the legitimate right of the Lords to veto legislation? Should the Lords have co-equal powers with the Commons? If so, there could be political deadlock over a number of issues.
4 What role, if any, would current members of the Lords have? Is it realistic to expect current members to stand for election? Would not much be lost by removing many of the working peers from the Lords?
5 Should the House of Lords comprise a mixture of elected and appointed members? Note that by Spring 2004 no Bill had been introduced to effect further reform.
The government signaled its acceptance in principle of the Commission report. A Joint Committee of both Houses of Parliament is to consider the reform options.