Reform of the House of Lords: the issues

As a constitutional lawyer, I’m interested (among other things) in how we’re governed, how the government is held to account for what it does, and how our laws are made. In the UK, it’s Parliament that does these things. The current proposals to reform the House of Lords are therefore important: if enacted (and that’s a big “if”), they will fundamentally change the House of Lords – and so one half of our two-chamber legislature (the other half being the House of Commons). In particular, the House of Lords would shift, under the proposals, from being mainly appointed to mainly elected.

Parliamentary copyright images are reproduced with the permission of Parliament

Reform of the House of Lords has been on the agenda (on and off) for over a hundred years. The Parliament Act 1911, which enhanced the legal powers of the elected House of Commons at the expense of the unelected Lords, explicitly says that it is a temporary measure pending a switch to an elected second chamber. Much has changed since 1911: in particular, the Blair government got rid of most of the “hereditary peers” (who inherited the right to sit in the House of Lords) by passing the House of Lords Act 1999, meaning that most members of the House of Lords are now “life peers”, appointed by the Queen, but in practice chosen by the Prime Minister.

The most obvious question in relation to the House of Lords is: “How should people get there?” In other words, should people get to be members of the Lords by being elected, or  should they instead be chosen in some other way (e.g. by being appointed, but perhaps through a more independent, transparent process than, as at present, selection by the Prime Minister)? The argument in favour of elections seems irresistible: how can Britain be a democracy if half of its legislature is unelected? But further reflection shows that matters are not necessarily as simple as this. Whether the House of Lords should be elected – and whether it would matter if it were to continue to be unelected – depends on what we think about two other, and actually more fundamental, questions.

Parliamentary copyright images are reproduced with the permission of Parliament

First, what do we want the House of Lords to do? At the moment, the House of Lords to some extent complements the House of Commons. This is partly because party politics plays a less prominent role in the Lords than in the Commons: while the governing party (or parties) necessarily dominate the Commons by virtue of having a majority in it, no party has overall control of the Lords. And a substantial minority of members of the Lords are “cross-benchers” – which means they have no party political affiliation. All of this enables the Lords to take a rather cooler, more objective look at things than the Commons, in which the party politics play a far more substantial role. Would an elected House of Lords be able to operate in this way? If so, would the way in which members were elected to the Lords need to be configured in some particular way, so as to preserve the Lords’ distinctiveness?

Second, what are, and what should be, the powers of the House of Lords? At present, the Lords’ powers are more limited than the Commons’. In particular, under the Parliament Acts 1911-49, the House of Lords has no power of veto over new laws: it can delay their enactment, but cannot ultimately stop the Commons from enacting legislation. If the Lords cannot actually thwart the will of the elected Commons, how important is it that the Lords is unelected – and how necessary is it to enact reforms making it elected?

The question of House of Lords reform is a good illustration of the type of questions that Law students encounter. Many such questions do not have simple, “right” and “wrong” answers. Once apparently simple questions (e.g. “Should the House of Lords be elected?”) are encountered, a range of related questions then falls to be confronted. So, to some people’s surprise, studying Law at University is not (just) about learning “the rules”: it’s (also) about working out why the rules are as they are, what the underlying policy objectives are, and whether the rules adequate advance those objectives.

If you want to read more about House of Lords reform, take a look at the following:

I’ll be putting up another post in a day or two with more detail on the reforms that would occur if the House of Lords Reform Bill were enacted.

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