Alex Morton is Director of Policy at the Centre for Policy Studies, and was a member of David Cameron’s Downing Street Policy Unit.
The House of Lords has overstepped its bounds – and will do so again
The Lords has recently roared into life and into political consciousness – with over a dozen defeats for the Government on the European Union (Withdrawal) Bill. Peers have done themselves a great disservice: it was astounding watching one peer declare that Brexit was on the same page as nazism’s rise. That the Lords were prepared to impose a version of Brexit that they saw fit (or openly call for Brexit to be scrapped) was unacceptable, given that they knew it would be almost impossible for the Commons to unpick their proposals, and has led to some Conservative MPs and commentators to call for the abolition of the Lords or its replacement with an elected house.
It is true that the House of Lords is more rebellious now due to the removal of the hereditary element and their replacement by appointees at the end of the 1990s. In the first two sessions of the 1987 parliament, 29 defeats were inflicted and, in the first two sessions of the 1992 parliament, a total of 35 defeats were inflicted. In 2015, the first two sessions saw 98 defeats, and 2005’s first two sessions saw 107. The changes at the turn of the century have roughly tripled the level of successful rebellions by the Lords – against both Conservative and Labour Governments.
The Coalition provided an unusual period of calm, because the combined weight of Liberal Democrat and Conservative peers, allied to the fact that crossbenchers do not vote as a block (and are less likely to vote in any event) effectively meant a more compliant Lords. Yet even this period saw 48 defeats in the long 2010-12 session. What is clear is that the Lords no longer is prepared to accept what comes from the Commons – despite the Lords lacking electoral legitimacy. As politics has become more charged, the feeling the Lords have overstepped the mark is likely to return.
An elected chamber would have been even worse
Some argue that the solution is an elected second chamber, and that Conservative backbenchers should not have derailed 2012 reforms aimed at this. But if the Lords were elected on 15-year terms (making them elected but unaccountable – the worst of all worlds) as the reforms proposed, we could easily have seen the Lords block the Commons on Brexit altogether, or explicitly seek to remain in the Customs Union and Single Market permanently – arguing they were legitimately elected and therefore had every right to do so.
This would create a struggle for legitimacy between the two elected houses of parliament. Brexit would be in even greater chaos. So in retrospect, Jesse Norman and his fellow rebels probably prevented what was a serious frustration from becoming a full blown constitutional crisis. An elected chamber would be even worse than the current one. This perhaps explains why even in the heated, immediate aftermath of the recent Brexit votes, most ConservativeHome survey panel members did not support a more elected second chamber.
The Lords should become a more clearly advisory chamber able to amend laws only once
An elected chamber is a solution in search of a problem. We need to keep the Lords as an effective revising chamber which is deliberately weaker than the Commons and does not have the same electoral legitimacy. The Lords does a strong job in improving legislation – including bringing forward legislation with cross-bench support. Not all amendments or legislation accepted by governments in the Lords are down to the fear of ping-pong or legislative timetable being distorted: sometimes peers improve legislative clarity, create effective new legislation, or amend policy errors in a proposed bill.
The solution to the current problem is therefore to amend the Parliament Act so that the HLords can only amend legislation once. In theory, the Parliament Act already means this is the case. In reality, the Parliament Act is so difficult to invoke that the current framework gives the Lords a power disproportionate to the Commons. To use the Parliament Act means that you have to reintroduce a bill into parliament the following session, effectively doubling the length of time that parliament has to spend on a bill.
The Parliament Act has been used just five times since 1945, (including one time to modify the Parliament Act legislation itself in 1949). Certainly, the Cameron Government from 2015-6 worried that measures not in the 2015 Manifesto would be impossible to implement. The idea we could easily and simply readmit the entire EU Withdrawal Bill in the next parliamentary session, for instance, is clearly nonsense. The current framework is not fit for purpose.
If the Lords were only able to amend proposed legislation once during the legislative amendment process, or propose legislation once, with the Commons only needing to vote against the Lords to block them, this would curtail the current tendency to use it to grandstand against the democratic lower house. Peers would have to seek to explain to Commons why they were amending legislation to improve the purpose of it, proposing legislation they believed could gain cross-party support, or correcting an error that had crept into the drafting.
This could be used in conjunction with limits on the size of the Lords
In addition, the ever-growing size of the Lords is simply unsustainable – at roughly 800, it is larger than the Commons and far larger than most legislative chambers. Lord Cormack has sensibly proposed a cut off for those whose attendance fall below a certain level – though they would remain peers, they would not have day-to-day voting rights. However perhaps peers could, if they wanted, withdraw from a particular Bill and substitute another peer in their place – because the crossbenchers are often only focused on the areas that they have experience in. This would keep the numbers down while maintaining access to useful expertise.
We should create a referendum lock on further constitutional change
Having amended the Lords in this way, we should seek to lock it down. An elected second chamber with long terms would be the worst of all worlds. Politicians with no accountability would dominate. The key three elements which make the Lords worth retaining – genuine scrutiny from those with expertise, bringing forward non-partisan legislation, and allowing non-politicians to contribute to public life or become junior Ministers (e.g: the effective Lord Freud at Work and Pensions) would be lost.
The Government should create a referendum lock on further constitutional change such as abolition of the Lords, the creation of elected peers, or the reversal of Brexit. Given the increasing acceptance that referendums are necessary for constitutional matters, this would merely solidify a convention. The Crown should be invoked to block constitutional reform that had not been supported in a referendum, ironically making the monarch safeguard of our democracy. The Conservatives often swing, as William Hague once said, between complacency and panic – but May should think coolly and then bring forward measures to remove the current, unelected, unaccountable, and unjustifiable power of the Lords, and replace it with a genuinely advisory and expertise-led second chamber.