REFORM OF THE UPPER HOUSE

Evidence from Dr Julian Lewis MP to the Joint Committee on the Draft House of Lords Reform Bill

Published: April 2012; submitted: October 2011


Introduction

1.    Whenever the topic of House of Lords reform is discussed in the Commons, there is little or no suggestion that an elected Second Chamber would discharge its duties more proficiently or more efficiently than the existing House of Lords. Instead, it is asserted as a self-evident truth that, in the 21st century, all parts of the Legislature must be elected. It is at that point that the arguments for making this change run into trouble.


Would an elected Upper House be regarded as subordinate to the House of Commons?

2.    There seems to be consensus that the Second Chamber should continue to be subordinate to the Commons and should also continue its primary function of revising and improving legislation. However, if the whole point of electing the Upper House is to give it democratic legitimacy, then the argument for recognising its status as subordinate immediately disappears. This can be avoided only by giving it less democratic legitimacy than the Lower House; but, if it is unacceptable to have an undemocratic Second Chamber in the 21st century, it is difficult to see why it should be acceptable that such a Chamber should be subject to only an inferior brand of democratic legitimacy.

3.    Thus, during debates at the Commons, advocates of electing the Upper House try to justify its proposed subordinate status by relying on the fact that, under the scheme proposed, the Peers or ‘senators’ – once elected – would not be subject to democratic accountability by having to fact re-election in the future. This is frankly as incoherent as it is inconsistent.

4.    In fact, those Members of the Coalition Government most strongly in favour of an elected Upper House – namely, the Liberal Democrats – face an additional paradox arising from the intention that the members of the Second Chamber would be elected by means of proportional representation. It has been instructive to observe the Deputy Prime Minister attempting to maintain that a Second Chamber elected by PR should and would be regarded as subordinate to a House of Commons elected by first-past-the-post.

5.    There can be little doubt that the more democratic the Second Chamber is made to be, the more likely it is to cease to be seen as subordinate to the House of Commons. Indeed, there may well be circumstances under which it would be claimed that the elected Second Chamber had a greater democratic mandate than the Commons.
 

What type of person would sit in an elected Upper House?

6.    Given the need to fight and win elections, the same factors which exclude almost all Independents from winning a seat in the Lower House would now remove most of them from the Upper House too. People who had been brought into the legislative process because they had achieved expertise and distinction in their specialist fields could no longer participate. The fighting and winning of elections is largely the prerogative of professional politicians. I have no doubt that many people who decided to leave their previous careers in order to become MPs might have risen to the top of their professions if, instead, they had remained within them. One of the sacrifices one makes when becoming a professional politician is to abandon that prospect.

7.    There may well be Members of the House of Commons who could have become eminent professors or brilliant brain surgeons, but the fact that they had this unfulfilled potential cannot compare with the presence, in today’s House of Lords, of bona fide experts who turned their potential into reality. That such expertise will be lost is recognised by those proponents of an elected Second Chamber who suggest that perhaps 20 percent of its Members could continue to be appointed. This would mean a grand total of 60 out of 300 Members – a proportion ill-equipped to substitute for the vast body of specialised knowledge, for example, from the arts, from the medical profession, from the higher Civil Service, from the military, from the legal profession, and from the Church, with which the House of Lords is currently endowed.

8.    Effectively, at a time when the House of Commons is reducing its membership by 50, the Second Chamber would introduce up to 300 new party politicians to Westminster. If the Second Chamber is genuinely regarded as subordinate to the Commons, it may also be expected that the more able and ambitious professional party politicians will seek to win a seat in the Commons and will regard election to the Second Chamber as a second-best outcome.
 

Will Members of an elected Second Chamber be as independent-minded as the existing House of Lords?

9.    The answer to this is No – for two reasons. First, as already indicated, elected Members will have to affiliate to political parties in order to have a reasonable chance of electoral success. Many independent-minded people will be extremely reluctant to do this. Secondly, it is highly likely that a Second Chamber of professional party politicians will be subject to the Whips far more rigorously than is currently the case.

10.  Ironically, the principal argument used by supporters of an elected Second Chamber to contend that a degree of independence will continue, is that its Members will not have to worry about facing re-election. Thus, the only guarantee that they can give of any continuing independence is in direct proportion to the most undemocratic aspect of the proposed new régime.
 

What else will be lost as a result of replacing the House of Lords with an elected Second Chamber?

11.  As well as a great range of expertise and a high degree of independent-mindedness, the tremendous opportunities given by the present system to amend legislation for the better will largely disappear. Voting in the Second Chamber will become much more tightly organised and disciplined. The result of this will be the mechanical rejection of amendments – no matter how compelling the case for them – just as happens on a weekly basis in the highly structured House of Commons.

12.  I speak here from personal experience: in the second half of the 1980s, I was a researcher to the late Lord Orr-Ewing and several other Peers. On three occasions I was able to promote amendments to important Bills which would not have had the ghost of a chance of succeeding if introduced by Backbench Members in the House of Commons. When these amendments to the Trade Union Bill of 1984, the Education Bill of 1986 and the Broadcasting Bill of 1990 were introduced and debated in the House of Lords, however, votes were won on the strength of the argument and the effect of this, in each case, was to concentrate the mind of the Government so that, when these Bills returned to the Commons, either the amendments were allowed to stand or alternative changes were made to meet their essential points. None of this would have been possible if the Upper House had been as tightly controlled as the Lower House was then – and as an elected Second Chamber would be in the future.
 

What other disadvantages would apply to an elected Second Chamber?

13.  Given that there will be 600 elected MPs in future and 300 elected Members of the Second Chamber if it is reformed, it follows that – under PR – each Member of the latter will be associated with a limited number of Parliamentary constituencies. This is a very different situation from the large number of House of Commons constituencies theoretically covered also by each Member of the European Parliament. I strongly suspect that elected Members of the Second Chamber – whether they liked it or not – would find themselves being approached by constituents from the limited number of seats which they supposedly represented. If they got involved in constituency cases, or indeed in local issues generally, this would cause tension and friction with the relevant constituency’s own MP. If they refused to get involved, however, this would cause justifiable resentment on the part of the people who elected them. In the worst days of industrial confrontation, more than 30 years ago, the term ‘demarcation dispute’ was never far from the headlines. This is precisely what would happen, with a vengeance, when an elected Member of the Second Chamber trampled on the toes of Members of the House of Commons.
 

Conclusion

14.  It is hard to see how an elected Second Chamber will be any more qualified or any better equipped to amend and improve legislation than the MPs in the Lower House where it originated. In the Second Chamber, expertise would disappear, independence would be much reduced, and the opportunity to win changes in legislation on the strength of the argument, rather than of the party machine, would all but cease to exist. There would be issues of primacy, legitimacy and demarcation between the Members of both Houses: often the result would be friction or even deadlock.

15.  So adverse would the effects of an elected Second Chamber prove to be that there is a credible case to be made for having no Second Chamber at all, rather than one which led to such outcomes. Nevertheless, by sensibly adjusting our existing appointed House of Lords (for instance, with arrangements to ensure minimum acceptable levels of participation) we could keep in being a system with which there is no perceptible public dissatisfaction and which admirably serves our legislative process.