The House of Lords is experiencing sustained criticism and calls for its abolition, but the calls are misguided and may undermine, not strengthen, the UK’s system of parliamentary government.
By Lord Norton of Louth
Professor of Government at the University of Hull
The House of Lords has regularly been the subject of debate and a critical press. Critics assert that it is undemocratic and should be abolished or replaced by an elected senate. Reinforcing this view is that it is a costly body, with peers often claiming allowances while doing little work, and bolstered by stories of peerages being ‘sold’ to millionaire party donors. The House has had a particularly bad press in recent months, being assailed by commentators such as Andrew Neil and Jeremy Paxman.
The claims levelled at the House start from the basis that they are self-evidently true. They are deemed to trump claims made for the House by its supporters, not least in respect of the work it does. Whatever the output legitimacy of the House (the work undertaken) it is secondary to the lack of input legitimacy (how the members are chosen). The tasks it carries it out are either questioned or considered capable of being carried out just as well by an elected House. The House is in danger of being drowned in a sea of criticism.
The claims, however, are not as straightforward as they appear. Let us consider three propositions that challenge the existing wisdom:
- There is a democratic case for an appointed House
- The House adds value to the political process in a way not replicable by an elected House
- The House of Lords offers remarkable value for money
The democratic case for an appointed House
Those who simply assert that the House of Lords is undemocratic fail at the first hurdle by not defining their terms. Democracy (demos kratia) is about how people choose to govern themselves. Absent direct democracy, all citizens forming the governing body, the people choose who will govern them. In the United Kingdom, a parliamentary (as opposed to a presidential) system), government is determined through elections to the House of Commons and is then accountable to electors for its actions at the next election. Accountability is core to the system.
Election day, in Karl Popper’s words, is ‘judgment day’. There is one body – the party (or parties) in government – responsible for public policy. Accountability runs directly and exclusively through elections to the House of Commons. The House of Lords, as we shall see, fulfils tasks that complement the work of the Commons, but it does not challenge the capacity of Government, with a parliamentary majority, to get its way. The House adds value to the political process without challenging the accountability that is at the heart of the system of government.
Electing a second chamber raises a fundamental challenge to this core accountability. An elected second chamber may well demand more powers than the existing House. It does not have to be co-equal with the first chamber to impact on the outcomes of public policy. Even if acquiring no new formal powers, members could utilise the existing powers of the House to cause problems for Government in a way that the existing House refrains, by convention, from exercising. Far from election enhancing democracy, it may undermine it by denying electors a body that they can hold to account for policies of which they disapprove (or approve).
Deals done between two Houses may be away from the public gaze, with voters having no idea as to who is responsible for the outputs of public policy. As Colin Tyler, a specialist in democratic theory, put it in evidence to the Joint Committee on the Draft House of Lords Reform Bill in 2012, ‘democratising one part of Parliament (the Lords) will reduce the democratic character of the whole (Parliament)’. Electors may acquire power to elect the individuals who will sit in the upper house, but at the expense of the capacity to hold to account those who make policy.
The relationship between the two Houses is presently governed by the Salisbury convention (under which the Lords does not reject a Bill promised in the government’s election manifesto; in practice it usually does not divide on Second Reading of any Bill in the Government’s programme) and the relationship between Government and electors conditioned by the doctrine of collective ministerial responsibility: there is a single entity that faces electors and, in between election, the representatives of the people in the House of Commons as the body answerable for public policy. Neither the convention nor the doctrine has any legal underpinning and would be lost or undermined by the election of a second chamber.
The House adds value to the political process in a way not replicable by an elected House
The House of Lords carries out functions, most notably that of legislative scrutiny, that complement the work of the elected chamber. It engages in detailed scrutiny of Bills – and of secondary legislation – in a way not possible in the Commons. The Commons is constrained both by time and by the political will of MPs.
The imperative of MPs is to be re-elected, to support their parties, and to pursue their own advancement or that of specific causes. That establishes a set of priorities in which slogging away for hours in public bill committees, often sitting silently, or serving on the Joint Committee on Statutory Instruments do not come very far up the list.
Peers, in contrast, have no incentive to engage in ‘look at me’ activities. They are not seeking re-election and sit in a House that attracts little or no media interest. They can undertake tasks that the Commons has neither the time nor the political will to undertake. The Lords devotes considerable time to examining the detail of Bills (while accepting the principle as determined by the Commons) and to secondary legislation, having an established committee structure for doing so that is completely absent in the Commons.
It also lacks many of the procedural constraints that exist in the Commons. In the Lords, there are no timetable motions (if extra time is needed to get through a committee stage, extra days are found and/or the House engages in late sittings), there is no selection of amendments (all amendments tabled are considered) and amendments may be taken on Third Reading of a Bill.
There are thus procedural differences that facilitate the House doing an effective job, but the most important variable is the membership. The collective composition matters in that no one party has an overall majority. The Government thus has to engage seriously with the House to gets its business through. Ministers seek to persuade the House. They cannot rely simply on the members sat behind them. The result is a notable cultural difference between the two Houses. The House of Commons is characterised by a culture of assertion, the House of Lords by a culture of justification (Norton 2016: 219). The individual composition also matters.
The House can be characterised as a House of experience and expertise. There are peers appointed because of positions they have held, be it in business, the public sector, government, or charities, or because they are leading specialists in their field. Ministers take members seriously and they do so not least because the House takes those members seriously. A minister may be subject to forensic and sustained questioning, resulting in the Government conceding amendments or promising to address an issue.
These are notable attributes which would likely be lost in an elected House. Election would favour parties at the expense of independents. More than 20% of the existing House comprises cross-bench peers, peers with no party political affiliation, many drawn from backgrounds where necessarily they have avoided partisan engagement, such as former members of the Supreme Court or senior civil servants. The House would become more partisan with members having an eye to re-election, unless barred from seeking re-election.
As the Government conceded in promoting its 2012 House of Lords Bill, those seeking election to the second chamber would likely be those who would prefer being elected to the first chamber. It is not clear what value would be added by having an elected second chamber; if anything it would be value detracting.
The House of Lords offers remarkable value for money
The House is criticised for its cost and portrayed as a drag on the public purse. Leaving aside the fact that an elected House would likely be a greater strain on the public purse, the existing House is remarkably cost efficient. Those who attack its cost look solely at the expense side of the ledger. No attempt is made to factor in the value of the work in undertakes. How does one monetise changes that protect individual liberties or prevent significant damage to commercial organisations or charities?
In 2010, I was among peers in all parts of the House that opposed Schedule 7 of the Public Bodies Bill, a schedule that would effectively put the Sword of Damocles over 150 public organisations, including some quasi-judicial bodies, neither abolishing nor modifying them, but giving power to Government to decide what to do with them at a later date. I moved to remove the schedule, arguing the case in the House as well as in a meeting with the minister and officials.
The Government conceded and the minister added his name to mine to remove the schedule. Had the schedule been enacted, the cost to the affected bodies could have been considerable in terms of perceived independence, public confidence and capacity to operate (and recruit) knowing that they may or may not be abolished by ministerial decision in the near future. How does one ascribe monetary value to that?
At least an attempt to do so, or even just recognising the value of the exercise, alerts one to the income side of the ledger. Relative to the running costs of the House – much lower than those of the House of Commons (given a much leaner staff base, no salaries and no office cost allowances) – the value of the changes achieved is considerable. It is not clear how an elected second chamber would be able to deliver the same balance: the running costs would likely be considerably greater (with salaries and staff for members) while the value added would be considerably diminished, given the likely changes in both the collective and individual composition of the House.
A case for reform?
Being against an elected House is not to be against some reform of the House of Lords. Peers themselves support change designed to strengthen the House in carrying out its tasks. The House has made changes to its structures and processes, most recently to its committee structure. Statutory change has been achieved through two Private Members’ Bills – the House of Lords Reform Act 2014 and House of Lords (Expulsion and Suspension) Act 2015 – enabling peers to retire, expelling any member who commits a serious criminal offence, removing peers who fail to attend for a session, as well as extending the Houses’ power of suspension and giving it the power to expel a member.
These have made some difference and peers continue to press for further change. The House has agreed unanimously that it is too large and that steps should be taken to reduce its size. There is support for putting the House of Lords Appointments Commission (which nominates cross-bench peers and vets other nominees) on a statutory basis and imposing a high quality threshold for nominees. As peers like to point out, they are not the obstacle to further reform to strengthen the House. They favour reform. The obstacle is the Government.
- Norton, P. (2016), ‘Legislative Scrutiny in the House of Lords’, in A. Horne and A. Le Sueur (eds), Parliament: Legislation and Accountability, Oxford: Hart Publishing.
- Norton, P. (2017) Reform of the House of Lords, Manchester: Manchester University Press.