Home > House of Lords, Reform, UK Constitution > Electing the Lords: Issues 1 – Powers and Purpose

Electing the Lords: Issues 1 – Powers and Purpose


My first post on electing the Lords arguably asks possibly the most important question: what do we want this supposed Senate to do? The overwhelming consensus is that the current dynamic between the two Houses of Parliament, in which the Commons is constitutionally supreme, and the Lords serves to support it with expertise and a long-term view, is both productive and desirable.  Election, in my opinion, would undermine this and take the British constitution into unknown and adversarial territory, in which the only winner can be the government.

What makes a second chamber effective?

1. Congruency and Incongruency: Tsebelis’ model

George Tsebelis, Professor of Political Science at the University of Michigan, has developed a theory on the impact of upper houses in political systems, differentiating between ‘congruent’ and ‘incongruent’ bicameralism.

Basically, congruency means coinciding, or matching; in this case, with the composition of the lower house.  A congruent upper house, even if it is constitutional powerful, is likely to agree with the lower house almost all the time, as it will match the lower house’s political makeup.  It will be echo chamber.  On the other hand, an incongruent chamber (that is, one composed differently from the lower house), is more likely to express differing points of view, as it will more likely have different types of membership and/or political makeup.

There are plenty of examples of how this works in the world.  Tsebelis gave some examples of congruent upper houses himself – the former upper houses of Sweden and Denmark.  These two chambers were made fully elected in the early 20th Century until they became pretty much valueless to policy formulation, as the replicated the lower house.  Denmark and Sweden lost little when they abolished them.  Italy’s own Senate today has a similar problem.

Elected and incongruent upper houses do exist, though: for example, the Australian Senate is elected in a very different way from the lower house and also elected via different constituencies, ensuring by and large a different majority from the lower house.  The United States Senate is also incongruent: although it shares the same voting system as the House of Representatives, but has different constituencies (the States), and neither House is as beholden to the executive as in parliamentary systems anyway.

Let’s apply George Tsebelis’ distinction of second chambers, and start with a congruent Senate – one in which the government has a majority in both Houses.  The Senate would remain silent and become an ‘echo chamber’ to the Commons – and people already complain about the relative toothlessness of the Lower House.  The result, then, as A W Bradley and K D Ewing (1) say, is that we could end up with a House wholly dominated by the political parties and, depending on election results, with the same party in control of both Houses.  In that case, there would be little prospect of effective scrutiny or revision of government business.  If there was a majority different from that of the Commons, the result may be stalemate, with both Houses claiming superior legitimacy.  This is the most likely outcome, and therefore rendering our Parliament weaker.  Incongruency tends to come with a different basis of representation from the other house, something which isn’t really being discussed by the present government, or the previous one.  There are other problems, too.

2. Core Accountability

Precious little thought appears to have been given to what relationship an elected House would have with the House of Commons.  A central principle of the British constitution is core accountability – as summarised by Lord Norton on his blog: (2)

“There is one elected chamber, through which the government is elected and through which it is accountable to the electors.  We have the benefit of a second chamber but without the divided accountability that would derive from having an elected second chamber.  The House of Lords adds value to the political process by carrying out tasks that complement those of the elected chamber.  It does not seek to challenge the electoral supremacy of the House of Commons.  It can invite the Commons to think again, but ultimately the Commons is entitled to get its way…there would be no reason why elected members of the second chamber would see the role of the chamber as a complementary one.  There would be the potential for conflict between the two.  This could lead to stalemate or more often to deals being struck.  Such deals would more likely be to the benefit of parties and special interests than to the benefit of electors.  There would be no clear line of accountability for what emerged, or, indeed, what failed to emerge.”

The British constitution is a balancing act, in this case, that of balancing the supremacy of the Commons against the support of the Lords.  This has been a key strength of the British constitution for centuries, and is echoed by such constitutional experts.

The Government agreed that the current conventions were the most desirable in their 2007 White Paper,(3) Jack Straw, Leader of the House, said:

“if this were to happen it would undermine the role of the House of Lords, and lead to the loss of much of what is valuable and successful to the current House.  Crucially, it would start to erode a vital facet of the successful operation of the House of Lords – that it can invite a Government to reconsider its specific proposals without calling into question its authority to govern…Although the primacy of the Commons is historically derived from its elected mandate, primacy no longer rests solely on this fact.  Primacy is made real by the different functions exercised by the two Houses, and their different roles.

One elected and one appointed chamber has made parliament very effective, with both chambers feeding off each other’s strengths and offsetting each other’s drawbacks (the drawbacks being detailed further on in this series of articles).  But two elected chambers would stop them from cooperating against the executive and would instead turn on each other.  This would only be to the benefit of the government.

Both chambers, being elected, would have theoretically equal claims to represent the people, and they would have in fact similar composition as elected professional politicians (on the whole) – but more on that later.

Because of this, core accountability in the Westminster system would be lost.  The impact would be that good laws would be twisted and mangled by an opportunist Opposition, and bad laws would fall through the net as most for most legislation, the devil is in the detail.  We see this all the time in the United States Congress.  With co-equal electoral legitimacies, the Commons would be less justified in calling in the Parliament Act to override the Senate when it disagrees; the result would be compromises and bargains, and from all this, the government could deny all responsibility as it was forced to accept the changes thanks to the interference of the Opposition in both Houses.  The end result would be that the public would be less able to hold the government to account.

Developments since 1999

We have seen a hint of what could be to come in the past decade.  Since 1999, with the removal of most of the hereditary peers and a permanently ‘hung’ Lords chamber, the balance of power between the two Houses has altered as the Lords has renewed vigour and a sense of legitimacy within and without, boosting its confidence in challenging the government.  We can see this in how the Salisbury Convention – in which the Lords would not oppose legislation which the government promised to introduce in a manifesto – has begun to decline, with the Liberal Democrats no longer recognising it when in opposition.

So far this increase in activity has not been at the expense of the Commons, as the Lords recognises itself as an inferior, complementary House, whose purpose is to support the elected Chamber’s work in scrutinising the government and legislation.  Indeed the two Houses have developed new ways to cooperate since 1999.  The presence of a more active and independent Lords has encouraged backbench MPs in the Commons to extract more concessions from the government, because while they can more or less ride roughshod over the whipped Commons, they cannot do the same with the Lords.  More on independence later.

The Joint Committee on House of Lords reform(4) indicated the Salisbury convention would be endangered by election:

“the continuing operation of the existing conventions in any new constitutional arrangement will be vital in avoiding deadlock between the Houses – which could all too easily become an obstacle to continuing good governance.”

It has been suggested also that the best way to prevent such damaging clashes between the two Houses would be to codify the conventions that govern the relationship between the two Houses, such as the Salisbury Convention and the Lords’ power over Statutory Instruments, and parliamentary ping-pong.  But the 2006 Joint Select Committee on Conventions(5) concluded that this would be difficult and undesirable.

Conclusion

The obvious danger then, is that electing the Lords would not only make the Upper House more powerful (on the face of it, a good thing), but would in fact throw the balance of power between the Houses of Parliament way off kilter and spark at least a generation of energy-consuming constitutional crises.  This is clearly not a good thing. Meg Russell and Maria Sciara, Senior Research Fellows at University College London’s Constitution Unit, writing in 2007 (6), summarised it well when they said that a compromise that democratises the Lords without making it stronger is ‘both logistically and tactically impossible’.

A Senate would not enhance the capability of Parliament to scrutinise the executive.  Rather, depending on the congruence of the two chambers with each other as mentioned, the Senate would at times agree with everything the Commons says, and at other times weaken Parliament’s ability to hold the executive to account by escalating infighting between the two Houses.  More likely there will be a combination of the two scenarios.

Given this, and that the current arrangement ensures one chamber through which the government is accountable, changing the composition of the Lords would reduce the value of the second chamber altogether.  The consensus both inside parliament and among the world of learned constitutional scholars is that the present Lords, when it disagrees with the Commons (which it does often), is far more likely to disagree on principled, constructive matters, based on expertly attained knowledge, without at the same time being overly obstructive to the broad principles of a government Bill.  Some would consider such an arrangement to be poor, as they consider the best way to measure the effectiveness of a legislature to be how often it kills a bill stone dead – wrong; that’s sabotage.

Put simply, the composition of the Upper House should be closely tied to its functions.  I’ll restate the question: what do we want the Upper House to do? If, as people say, they want the House to continue doing what it does so well now (and they have – check this out), then election not the answer.

Back to Article 0

Forward to Article 2

Sources:

1 – Ministry of Justice, An Elected Second Chamber: Further Reform of the House of Lords (July 2008)

2 – A W Bradley and K D Ewing, Constitutional and Administrative Law (2007), p 186.

3http://nortonview.wordpress.com/2010/05/22/no-to-pr-and-an-elected-second-chamber/

4– Leader of the House of Commons, The House of Lords: Reform (February 2007), Cm 7027, p 20.

5– Joint Committee on House of Lords Reform, House of Lords Reform: First Report (December 2002) HL Paper 17, HC 171, paras 11 and 12.

6– Joint Committee on Conventions, Conventions of the UK Parliament (November 2006), HC 265, HL Paper 1212, p 76.

7– Meg Russell and Maria Sciara, The House of Lords in 2006: Negotiating a Stronger Second Chamber, The Constitution Unit (January 2007), p 11.

8–  Meg Russell, ‘Views from Peers, MPs and the Public on the Legitimacy and Powers of the House of Lords’

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