Labour and the Lords: plus ca change? (Includes sample essay)

How likely is that an incoming Labour government would reform the upper house?

There has been a fair bit of coverage of the news that Keir Starmer as leader of the opposition is looking at detailed plans for a raft of constitutional reforms.

See an earlier excellent blog post by a tutor2u colleague here.

With regards to the Lords specifically there is a useful piece of analysis of the need to think carefully of the mechanics of any such reform here from the Institute for Government here.

How likely is that a new Labour government would successfully overhaul what is widely regarded as the most undemocratic part of the UK constitution? Well, I'll turn it around by pointing to a sample essay I wrote a few years back on why the Lords hasn't been reformed (feel free to plunder)...

Analyse and evaluate the the main reasons why the House of Lords has not been reformed. [25]

The row between the House of Lords and the Conservative government in autumn 2015 once again sparked discussion about reforming the second chamber, principally because whilst on the one hand many were sympathetic with the Lords defeat of a badly thought out tax-credit plan, concerns were expressed that, as the Economist put it, “a chamber of losers, crooks, and self appointed holy men” could block the elected government. For an unelected body to do so was undemocratic. Transforming the upper house would appear to be, as the Americans put it, a “no brainer”, but deciding how to reform it has proven easier said than done.

The Lords is one half of our bicameral Houses of Parliament. At one stage in our history it was the pre-eminent chamber, but has since been emasculated by the 1911 and 1949 Parliament Acts, and can now only issue a one year temporary veto on bills sent by the Commons. Further, it has no power over “money bills”, hence the row over the constitutional limits of its power when trashing the tax-credits plan. As part of the legislative branch it should serve to check the government during the legislative process, scrutinise the executive branch, represent the people, act as an important forum of debate, legitimise actions of the government, and help form the government by producing ministers.

One of the main reasons the Lords remains an anachronism in the nation that often claims to be the world’s oldest democracy is that for most of the last hundred years the UK has had a single party Labour or Tory government. Labour, despite its ideological opposition to class and privilege, when in government was very comfortable with controlling the “commanding heights” and receiving very little opposition when implementing to implement its manifesto commitments. Parliament was largely supine, and civil servants did as they were instructed. The Tories, of course, were opposed to constitutional reform full stop. This lack of political will among the top echelons of British politics is still with us. For instance, the 2015 Conservative manifesto stated that reform of the second chamber was “not a priority”. Only the Liberals have been long time advocates of fully reforming the Lords, but when Nick Clegg, as DPM, introduced a bill in 2011, it was torpedoed by what was at that stage the biggest Tory rebellion of the 2010-2015 Con-Lib coalition. This was part politicking, but was also based on principle.

One of the principled reasons why there has been a lack of consensus on the shape a new reformed chamber should take is a concern that the Lords (or Senate if it is renamed) will simply become an “echo chamber” of the Commons. If elections are to be held every five years at the same time a General Election is held, then there is every reason to suspect that the dominant party will mirror that of the Commons. In order to try to mitigate against this, reformers have suggested longer terms (the Lib Dems suggest single fifteen year terms, the Welsh Nats favour ten years), with only a fraction of seats being contested every 5 years. This would be something akin to the US whereby only a third of Senate seats are up for grabs when the whole House is re-elected. Quite often in the US, however, the same part controls both chambers. This would weaken the capacity of the second chamber to provide an effective check on the government, and what Lord Hailsham called the “elective dictatorship” would still be in place.

Then there is the issue of what powers the Lords would possess. If it was to be co-equal to the Commons, the possibility of legislative gridlock would arise. An elected Lords would be full of men and women who felt that their role as part of the legislative process was more legitimate than the current arrangements, and they would be far more willing to flex their muscles. An answer would be to limit its legislative powers to the temporary veto it has at the moment and perhaps provide the new house with a much greater oversight and scrutiny role. In the US, for instance, the Senate must approve a whole host of presidential appointments. Whilst these ideas have been proposed by reformists, yet again little consensus exists among those that will ultimately be responsible for passing Lords reform: MPs.

Another area where there is a glaring lack of consensus is how members would be awarded their seats. Some favour a wholly elected house, but opponents of this plan point to the potential loss of expertise from the chamber. Doubts have been expressed that prominent and successful leaders of their field among the current life peers would be prepared to put themselves through the rough and tumble of electoral politics. Would the likes of expert geneticist Lord Winstone stand for election, for example? Places would be taken by “has beens” and “never weres” and for our national legislature to be staffed by second and third rate politicians, it has been pointed out, would not improve our system of government. And there is the idea of ballot box fatigue. In addition to electing local councillors, mayors, regional governments, and a plethora of referendums, do voters really have the stomach for another election? If we exclude our soon to be unemployed MEPs, there are still nearly one thousand elected office holders above local level in the UK. Do we really need another three or four hundred? Then there is the question of the election method itself. Even that is something that supporters can’t agree on! Some favour a system of STV, some propose a system of semi open party list, and Labour have suggested that somehow it would be elected from the regions, in some sort of federal arrangement. On the issue of keeping in place some appointed element, the Cash for Honours scandal illustrates how that would need careful planning. The link between party donations and life peerages, whilst not resulting in criminal prosecution, has been statistically proven by an exhaustive study by Oxford academics. It appears that what Billy Bragg called the “stench of impropriety” can only be fully cleared from the air by a fully elected chamber.

Not only is there a lack of political will, there seems to be very little public appetite for further reform. On the one hand, polls suggest that at least two thirds of the British electorate favour a mostly or wholly elected second chamber, but it is not high up the list of issues in terms of political salience. Bread and butter concerns such as jobs, health, and the economy (and more recently immigration) top the list of core factors that drive voting behaviour, and as is the case with constitutional reform as a whole, Lords reform sits near the very bottom. And unlike the case of Scottish devolution, where there was widespread media coverage and public debate about the work of grand committees throughout the 1990s, by contrast there has been no long term public debate about the need for, and shape of, Lords reform.

Unlike the issues mentioned above, consensus does exist in one area when discussion of the House of Lords takes place: if it ain’t broke, don’t fix it. Fuss over business in the Lords (such as the tax-credits kerfuffle) is the exception rather than the norm, and there is much to commend it. As Meg Russell of the Constitution Unit has pointed out, the Lords is the most active chamber in the world. It sits for longer and meets more frequently than any other. Since 1999 it has proven to be a useful check on the executive, defeating the government nearly five hundred times since the bulk of the hereditaries were ejected, including on plans to curtail civil liberties (e.g., 2001 and 2003 on plans to limit trial by just, 2005 on government plans to introduce compulsory ID cards). Furthermore, work by its committees is highly respected. Reports are read throughout the world and are often included in debates in foreign legislatures.

As Vernon Bogdanor has stated, many nations undertake fundamental reform of their constitutions during times of exceptional upheaval - following revolutions, independence, etc. Post Brexit, when attention turns to what parliamentary sovereignty really means, may be one such time. Reform to the Lords may form part of that process. Then again, if past is prologue, consensus on reform will remain as unlikely as it has done for over more than century.