Memorandum submitted to Royal Commission on Reform of the Lords

by

Mr J. R. LUCAS

Click here for summary of memorandum

The Government's bill is concerned only with the membership of the House of Lords, but the remit of the Royal Commission is wider,. In order to reach a satisfactory conclusion, it needs first to consider the functions of the House of Lords. These are diverse and lead to different desiderata for its powers and composition.

The House of Lords is part of the Queen-in-Parliament, the supreme authority in Great Britain. It has to be considered in relation to the other parts. In time past the monarch in person had the dominant say, and the two chambers had the function of advising and counselling him, and resisting his unwise measures. Now the dominant role is played by the House of Commons (though the executive powers of the Crown exercised by the Civil Service are a distinct and influential component), and the function of the House of Lords is to be construed primarily in relation to the House of Commons.

At present the House of Lords performs three functions: it is a Second Chamber, revising (or occasionally initiating) legislation; it is an Upper House, with power to prevent the House of Commons legislating itself into permanent existence; and it is a National Forum of Debate in which issues of public concern are articulated and aired.

The need for a Second Chamber arises from the pressures on the House of Commons, both of time and of party discipline, which mean that many measures are inadequately scrutinised and not criticized trenchantly enough. The different atmosphere in the House of Lords and its different membership constitute an independent check on what has been approved by the House of Commons before it is enacted into law.

It is an essential feature of any constitutional regime that there should be some check on the dominant organ of government. The Upper House is there to protect the country from a dictatorial and over-whipped House of Commons. In spite of events in Australia under Mr Whitlam's premiership, this need has been insufficiently recognised. We like to think that we are too civilised, too gentlemanly, to need any formal restrictions, that our unwritten constitution would prevent any party with a majority in the House of Commons passing a law prolonging its own existence indefinitely. That is a mistake. In the seventeenth century the Long Parliament lasted far too long. In our own century the 1935 Parliament was, quite rightly, prolonged on account of the exigencies of war, and after 1945 there were voices, citing this as a precedent, arguing that the new Parliament should simply pass an enabling act to allow the Government to get on with creating a new society without need for further elections until the job was done. It is to be hoped that such voices would never prevail in any future House of Commons, but it is not to be counted on. In framing constitutional law we need to think about worst possible cases, and take steps, while we have the opportunity, to secure ourselves against them.

The House of Lords sometimes initiates wide-ranging debates. Parliament was originally a talking shop, but the possession of power inhibits free and frank discussion. Debates in the House of Commons, tend to be dominated by party considerations, and many things are left unsaid for fear of offending the whips or damaging chances of re-election or promotion. The Lords, being free of these pressures, are better able to speak their minds, which makes for better debating. It is desirable that this should continue. Although the media also provide a forum for debate, they tend to do so on a somewhat superficial level. The Lords are better informed and go into matters much more thoroughly than most discussions in the media, and have the constitutional clout to ensure that what they say is heard by the Government.

These three functions do not always fit comfortably together. We could follow the example of the United States and separate a Supreme Court from a Senate, leaving the latter to slog it out with the House of Commons, while reserving to the former the constitutional protection of the people from Parliament. But there are great disadvantages. We do not want, and ought not to want, to hand ourselves over to the lawyers. Often the issue is not a narrow legal one, but a wider political one: the Americans could not put off their elections in 1942 as we did in 1940. And generally a judicial court is not the right body for resolving constitutional clashes in an eirenical way.

If the functions of Upper House and Second Chamber are not separated, we face a dilemma: either the Upper House is strong enough to thwart a House of Commons determined to subvert the constitution, and then it will become too strong, and constitutional deadlock will become endemic; or it is weak enough not to obstruct the Government of the day on party-political grounds, and then it will be too weak to protect us when we need to be protected. Similarly, if a Second Chamber has power enough to make the House of Commons have second thoughts, it will sometimes obstruct the Government's parliamentary programme: if, on the other hand, it does not possess effective power, it will soon become a cipher---as the Canadian Upper House is said to be---and competent persons will not want to waste time being members of it. The main task of the Royal Commission is to devise a system that will not be impaled on either horn of this dilemma.

One solution is the Bicameral one. Although a fully Bicameral system is explicitly excluded by the Royal Commission's terms of reference, it is implicit in much of the rhetoric for reform of the present House of Lords. One leading argument against the present House of Lords is that it is not democratic. If that argument is cogent, it follows that a reformed House of Lords must be democratic, and then, if it is to continue as a constitutional check against the House of Commons abusing its power, it will come to rival the House of Commons. It is therefore worth thinking through the Bicameral solution, if only to see what arguments must be rejected if Bicameralism is not to emerge as the conclusion.

The Upper House could be given great powers, adequate to prevent absolutely the House of Commons overstepping the constitutional mark, with the understanding that these powers were to be used only sparingly and in extreme cases. But who is to decide which cases are extreme? In the United States the Supreme Court decides how far its powers extend, and over the centuries has gradually extended them. It was quite ready to rule some of Roosevelt's New Deal unconstitutional. We should not want to create an Upper House that was able and willing to be a judge in its own cause. In the present climate of opinion the only way of resolving deadlock between the two Houses of Parliament each possessing incontrovertible legitimacy would be a referendum. If the Lords and the Commons could not reach agreement on the final form of a Bill, there would be a referendum to choose between the two versions. People would be faced with a simple choice between supporting the Government that had the confidence of the elected House of Commons and accepting the second thoughts of the Upper House, also elected though on some different principle.

There are some advantages. Both Houses would be under pressure to be reasonable, since the more reasonable version would have the better chance of winning. It also would be possible to meet some demands for electoral reform or for a more federal constitution by having the Upper House elected by proportional representation, or by the regions on some equal footing, like the Senate of the United States. It is conceivable that the United Kingdom may evolve into a federation---if the Scottish nationalists are successful, and are followed by the Welsh and Irish nationalists, there may be a role for the House of Lords as a ``Council of the British Isles'' (and there might be an argument for keeping the Scottish Representative Peers against that sort of possibility). But there are grave disadvantages. However much might be said at the outset about the pre-eminence of the House of Commons, the balance of power would shift away from it. Whatever the method for electing its members--- first-past-the-post or some variant of Jenkins or something altogether different---it would be open to objection; no system of election can be perfect, and in the rough-and- tumble of politics there would be occasions when many people, disappointed at the outcome in the Commons would feel that the Lords represented the nation's interests better. We should gradually move towards parity of disesteem, and increasingly resort to the referendum in order to resolve disagreements between the two Houses each confident of its own electoral legitimacy.

The fully Bicameral option is not available to us. It is ruled out by the terms of reference of the Royal Commission and by the political fact that the House of Commons would never agree to a cuckoo possessed of equal electoral legitimacy being inserted into the parliamentary nest. Two consequences follow: the Upper House should not be an elected house (though it could have some elected members); and the powers required for Upper House functions need to be carefully distinguished from those of a Second Chamber. It has been suggested that the power of the House of Lords to delay legislation should be reduced. Whatever the merits of further weakening the power of the Second Chamber to secure genuine reconsideration by the House of Commons, it is essential to its function as an Upper House that it should have sufficient reserve power to be effective. If the Upper House does not have the power to insist on a referendum, then a slightly strengthened version of the present Parliament Act is called for. As was pointed out at the time, the definition of a money bill should not be left to the sole decision of the Speaker; now that taxation takes a very large proportion of the GNP, the consequences of money bills have wide social implications which call for a second scrutiny. More important is the restriction on bills prolonging the life of Parliament. This provision needs to be more securely entrenched. The Nationalists were able to set up apartheid in South Africa, by altering the provisions, themselves not entrenched, which determined the validity of entrenched statutes, such as that protecting the franchise of the Cape Coloureds. Any new Parliament Act must give the Upper House a veto, which cannot be overridden after some suitable delay, not only on bills to prolong the life of Parliament but essentially also on bills to amend the Parliament Act itself. Only so can we ensure that an elected House of Commons will not be able to legislate away its obligation in due course to face the electorate.

Only occasionally does the House of Lords have to act as an Upper House frustrating the will of the House of Commons on high constitutional principle. The very fact that it possesses the power is enough to dissuade politicians from trying dodgy tricks. For most of its time the House of Lords acts as a Second Chamber, revising legislation which the House of Commons did not have opportunity to think through adequately. Although it has been suggested that its delaying powers should be reduced, the case has not been made out. The story of the minister who, following his text too closely, ended with the words ``I am sorry, Minister, I did not have time to write you a better speech, but it will do for the Lords'' suggests that there is a general need to increase, rather than diminish, the power of parliamentary critics of government policy.

The present arrangements between the House of Commons and the House of Lords are unnecessarily adversarial. Occasionally the ping-pong of amendments put forward by one House and not accepted by the other is necessary, but more could be done in joint committees to thrash out a compromise; and there should power to amend, and not merely reject, delegated legislation, and to argue in committee with civil servants so as to determine the best balance between the interests of the Executive and those of other parties. The House of Lords is a consensual place, and greater facilities for achieving consensus would be a good thing.

No special powers are needed for either House to be a National Forum of Debate. Since in most cases the motion is by leave withdrawn, and no vote is taken, it follows that, as far as this function is concerned, voting rights are less important than speaking rights. At present only the Bishop of Sodor and Man has the latter but not the former. But there could be others.

The different functions and different powers of the House of Lords impose different desiderata for its composition. It has been suggested that the new House should have full-time members who are paid. This makes some sense for a Second Chamber, but not for an Upper House or a National Forum of Debate. The function of a Second Chamber is to revise. It is a task that former civil servants and former members of the House of Commons can do well. They know the ropes and can understand the intricacies of drafting that mystify most of us. It is desirable that the Second Chamber should contain a core of such people, mostly London-based and able to devote a considerable amount of time to the work of the House. But they should not be the only ones. Bishops can contribute on social and spiritual issues, law lords on legal ones. Many other professionals could contribute something, but only occasionally. Although full-time attendance on the part of some retired politicians is a reasonable demand, it would be inexpedient to make it a general requirement. Many professionals do not have much to offer outside their own sphere. At the very least it would be a waste to have bishops, vice-chancellors and doctors spending many hours listening to debates about agriculture and fisheries. Not only would it be a waste, but it would be counter-selective and counter-productive. It would be counter-selective because leaders in various walks of life would be unable to combine full-time attendance in the House of Lords with their other duties, and unwilling to abandon their profession for Second-Chamber politics. Good doctors might be prepared to devote some time to helping to make the country's medical policies better, but would rather cure patients than listen to an under minister for agriculture read a departmental brief on fish quotas to a somnolent chamber. It would also be counter-productive: it would increase the temptation for those who had nothing to say to say it nonetheless. Absenteeism spares us superfluous speechifying. Debates in the Lords are said to be good: few speak well of proceedings in the Senate of the United States of America.

It has been suggested that the law lords be extruded, because their impartiality in administering the law might be compromised if they had taken part in framing it. It is an unreal fear: any law lord who had been unduly partisan as a legislator on a law he subsequently was called on to interpret could disqualify himself. It would rarely happen, and would be a minor awkwardness compared with not having judicial expertise at hand when debating what the law should be. The presence of the bishops raises the question of there being representatives of other religious traditions besides the Established Church. Many who are not Roman Catholics would welcome the presence of Cardinal Hume. There is an obvious case for having the Moderator of the Church of Scotland. But we should recognise spiritual difficulties in accepting a spiritual peerage. Although Judaism was an established religion, and Isaiah felt at ease in the centres of power, the main thrust of Christianity has been anti-establishment, and the Dissenting Churches may well be wary of being officially embraced by the Establishment. The present practice of conferring life peerages ad hominem may be preferable. Lord Soper and the Chief Rabbi have been able to contribute without compromising the independence of their co-religionists. Similar considerations may militate against other ex officio peerages. It would be desirable to have leading trade- unionists and industrialists in the House of Lords, but that would involve legislative definition of the qualifying offices, which is something the TUC and FBI might not like. Where it can be done, it should, in order to reduce the burden of selecting ad hominem peerages. It might help restore the morale of teachers if some---say, the heads of Manchester Grammar School and Holland Park Comprehensive School---were ex officio intellectual peers of the realm.

There could be some elected members---perhaps the university burgesses who used to sit in the House of Commons, together with representatives elected by other professions and trade unions, if they were not represented ex officio by their leaders. But there are many areas of national life that do not form natural constituencies, and it is important that the Upper House should not be composed predominantly of persons elected from among those who put themselves forward for election, but should contain many whose judgement would be widely respected in the country if they deemed some government measure so objectionable that they voted it down. Most Lords, therefore, will need to have life peerages conferred on them individually by the Crown. It has been suggested that the core members of the Second Chamber should be nominated by their party leaders without the Prime Minister having a veto over the nominations put forward on behalf of other parties. That would work moderately well, though it would be better if their nominations were scrutinised by an all-party committee chaired by the Speaker, which could ask awkward questions if dubious manufacturers of raincoats were being put forward. A different procedure is required for the selection of non-politicians, ``the great and the good'', who are desirable members of the Second Chamber and essential ones of the Upper House. They need to be very great, so that if they challenge the House of Commons they will be supported by public opinion, and moderately good, so that they will not be tempted to usurp its functions or threaten its primacy. Such people will tend to be old--- fame comes only slowly--- not necessarily based in London, and with many other calls on their time. It follows that there should be no age limit or need for re-appointment, no expectation of regular attendance, and no pay (except for reimbursing expenses). Even in respect of its function as a Second Chamber, it would be a mistake to make membership of a reformed House of Lords a full-time occupation, but it would be much worse as regards its standing as an Upper House. It would exclude the very people best qualified to adjudicate between the politicians and the people. Isaiah Berlin is often cited as a great and good man of our time whose judgement was widely respected: but he would never have accepted membership of a body that required him to be always in London, and not writing, thinking, or talking to friends. Contrary to much contemporary rhetoric, apathy is an important political virtue. An Upper House needs to contain many members who are generally content to let the House of Commons get on with the business of politics, and will only stir themselves to intervene if it seems that some important constitutional principle is at stake.

Assessments of greatness and goodness are always difficult. A life peerage should be, as it is in popular estimation, a great honour. If the Upper House is to have the prestige to enable it to stand out against the House of Commons, its members need to be those most highly thought of in the country at large; and such people are least likely to have ambitions to become politicians. As far as I can see, the present honours system works reasonably well. If the present system is thought not to be open enough, there could be a committee including some Privy Councillors, some peers, and some other public office-holders, to make recommendations to the Queen. The Prime Minister might have a some sort of veto. The system for making crown appointments in the Church of England offers a modern example of how the Prime Minister's role as the Queen's chief adviser may be combined with a procedure for garnering from diverse sources opinions about individuals' suitability for appointment.

At least two methods for nominating people for life peerages are required, one overtly political, the other perhaps connected with the honours system generally, but in any case distinct from political nominations to the Second Chamber. Further methods are required if the House of Lords is to continue to be a National Forum of Debate. The presence of retired party politicians and of cross-bench peers drawn from the great and the good is a strength, but they share a common defect: even if they are not nominated by the Prime Minister, they are, characteristically, very successful people. They are not representatively ordinary, and it is desirable that ordinariness be represented in national discussions of what public policy ought to be. It has been pointed out, mostly by Conservatives but also by Earl Russell from the Liberal Democrat benches, that the hereditary peers are free from the limitation of being remarkably successful people themselves. The Home Secretary has countered by saying that they are limited in another way---they are mostly land-owning Old Etonians (though not, for instance, Lord Calverly, a retired policeman). That is true, and needs rectifying, though not at the cost of throwing out the ordinary baby in order to guarantee an absence of Old Etonian bathwater. We need to have ordinary voices heard near the seats of power. We cannot have them all, and if they are representative in one way, they will not be representative in some other way. Nevertheless, it is good to be able to hear in national debates the voices not only of professional politicians and the great and the good, but of some non-politicians who are not at all great and not outstandingly good. In ancient Athens the Boule was selected by lot from the different tribes, and some element of sortition might help the House to be a sort of citizens' jury: F.A. Hayek had a complicated scheme of choosing representatives for each cohort, so as to retain a youthful presence. In a slightly tongue-in-cheek letter to the Independent last year, I suggested giving seats in the House of Lords to winners of the jack-pot in the lottery. Since very few debates end with a vote, little would be lost in treating the Ordinaries, as we might call them, like the Bishop of Sodor and Man. Some protection might be needed against the development of filibustering as in the Senate of the United States---perhaps Ordinaries could speak only with the permission of the House, which would be granted as a matter of course except to those who had on previous occasions out-talked their welcome.

If a reformed House of Lords is to contain Ordinary people, I would welcome it if those hereditary peers who wanted were allowed to return as Ordinaries. There would need to be others to meet the Home Secretary's point, but the partial retention of hereditary peers would have three merits. It would make the reform of the House of Lords an evolution rather than a radical break, and hence make it much more consensual---very important where any change to the constitution is involved; and thirdly, it would give real recognition to the service actually rendered by individuals who have inherited peerages---there have been many tributes recently, even from those who think change is called for, and this measure would make those tributes not a matter of lip service only, but real appreciation of work well done.

To summarise: in formulating plans for reforming the House of Lords we need to distinguish three different functions it performs, which require it to have different powers and suggest different criteria for membership. If the new House of Lords is not to threaten the primacy of the House of Commons, it cannot be democratic. It is very important that it should be able to protect us against abuse of power by the House of Commons, and therefore must have effectively entrenched power to prevent the House of Commons legislating away the need for elections. In order to have this power but not be tempted to use it improperly, it needs to have members drawn widely from the leaders of different aspects of national life, many of whom would not be politicians and would not be frequent attenders. And in the National Forum of Debate it is desirable that there should be heard some voices from those who are neither politicians nor outstandingly successful.

J.R. Lucas