What are we to do with the House of Lords?

That’s a question that will come up sooner or later as another run at a package of reforms is in preparation at the moment and due to be put to Parliament at some time in the near future.

One the one hand, in a liberal democracy it cannot be right that there are some people who are given a direct influence over legislation for no better reason than the fact that distant ancestor was, to put it politely, happy to accommodate the fancies of long-dead monarch either personally, or vicariously by turning a blind-eye to their spouse’s regular visits to the palace. Equally it cannot be right that there are some whose influence derives from simple political patronage, that making sizable donations to a particular party or, in the case of a number of former MPs, merely standing aside to permit an up and coming favourite of the party leader to take a safe seat in the Commons, should give them the right to a seat at the legislative table – and then, of course, there are the Bishops whose position derives fundamentally from their willingness to comply with Henry VIII’s demand for a divorce from his first wife where the Pope wouldn’t.

On the other, one has to concede that the Lords have acted as the sole constitutional bulwark against many the more draconian and illiberal proposals that have been spawned by this present government pretty much any time its turns it’s attention to matters of law and order – with a natural opposition majority in place, the Lords may well predisposed to challenge any legislative proposal put forward by a Labour government and, in this, its role has not always been so benign or enlightened as recent events may suggest – let’s not forget that the Lords did vote against equality for the gay community on the age of consent, requiring use of the Parliament Act to push that particular piece of legislation through. Nevertheless the Lords has at least tried to mount a rearguard action against some of Blair’s more overt Manichean tendencies, for which it deserves some measure of credit.

Decisions, decisions…

I am, at heart, a democrat and for that reason, much as I am grateful for the timely interventions of the House of Lords on issues such as ID cards, I cannot in all conscience support the continuation of a second chamber based on patronage, heredity and privilege. The question for me is not whether we replace the Lords but how can we best replace it and what form should a new second chamber take.

Of the seven or eight options put to the Commons last time around, only four were put to a vote, these being the options of a fully appointed second chamber, a fully elected second chamber and two hybrid systems in which elected members made up the majority (either 80:20 or 60:40) with the balance of members appointed by a nominally independent appointments commission – of these the 80:20 split came, I think, closest to being accepted.

I’ve given this a lot of thought of late and looking at the three basic options – fully appointed, fully elected or hybrid – tries to come to some sort of conclusion as to which may provide the best possible solution, one that is democratic in spirit, avoids patronage and yet which retains some of the better elements of the existing framework of the Lords – yes, there is something about the current make-up of the Lords that is worth retaining, which I’ll come to in a moment.

The option of a fully appointed second chamber is one I cannot support.

I really don’t care whether such a system has a nominally independent appointment commission attached to it or not, it still remains an open vehicle for political patronage – like it or not, the majority of nominees that such a commission would be asked to consider would be put forward by political parties and those parties, particularly the party in government at any given time, would exert an influence over appointments even operating at arms length. The problem with appointment commissions is always the matter of who appoints member to that commission, which invariably means the government of the day.

A full elected chamber has obvious attractions – it has, at least, the merit of being directly elected by the people and would also serve to invalidate further use of the Parliament Act as the Commons could no longer cite its democratic mandate as justification for overriding the will of the second chamber.

But a fully elected second chamber is not without its downside. Even if some form of proportional representation were put in place for its elections, such a chamber would be dominated entirely by professional politicians and, in particular, by the three main political parties and, to be honest, the one feature of the current House of Lord that I would quite like to retain is the presence of independent members – the crossbenchers – who often contribute a welcome air of rationality and scepticism to the proceeding of the Lords. I supposed that some sort of dual list electoral system could be contrived in which the electorate cast two votes, on for a political party, the other for an individual from the independents list, but ensuring a suitable number of independent members requires more than simply a modified system of elections, one also has to consider the costs of mounting an effective campaign and developing a suitable public profile, which will tend to favour independent candidates with either wealthy backers or substantial independent means or ones with a measure of ‘celebrity’ value – things which would serve to devalue the role of independent members if left unchecked and leave these elections open to a disproportionate degree of influence from special interest groups.

What, then of a hybrid system – could such a system work?

All things considered, it could if constructed correctly. A starting point would be the get the right split between elected and appointed members – having thought it through, something of the order of an 80-20 or 75-25 split would seem about right.

Crucially, within such a hybrid system, political parties above a certain size in terms of membership/income would be restricted to fielding candidates in elections to the second chamber, these elections being carried out using a system of PR – which one would work best is a matter on which I’m agnostic and open to persuasion, but is should be one that broadly reflects the will of voters, in terms of percentage vote gained, while allowing for a measure of regionalisation so as not to unduly penalise the likes of Plaid Cymru, the SNP and the various parties in Northern Ireland.

The remaining members would be appointed by an independent commission – for all their obvious flaws there really is no way of getting away from them entirely – but under very strict eligibility criteria which preclude the appointment of any member who has been a member of a designated political party, or a donor to such a party (which would include corporate donors where the individual held a position on the board or a senior executive , which placed them in a position to influence any such donation) within the preceding 5-7 years. The matter of designated political parties is quite important here as the aim is to keep those parties who could reasonably contest elected positions out the independent bloc which not preventing people who may have stood for a genuine fringe party from putting their name forward.

Members appointed in this way would also be precluded from taking a party whip once appointed, becoming ineligible for a seat in the chamber should they become a member of a designated political party.

Unless someone can come up with a fair means of electing a fixed proportion of independent members to the second chamber, such a system while not ideal, would at least offer a reasonable compromise, provided that the criteria upon which independent members are appointed can be seen to open, fair and transparent. For example, while I would not support the idea of fixed quotas for any group so as to establish tokenistic minority representation amongst independents, I would expect such appointments to be made subject to the same equality laws and regulations that operate in employment.

This leaves only the thorny problem of terms of office – should it be fixed or open ended. In terms of elected members I would favour some sort of limit on the number of consecutive terms that any one member could serve – two or three five years terms would seem reasonable.

Admittedly, such a question gets a little more complex in relation to appointees as one may be effectively asking them to reapply for their ‘job’, however a system of staged mandatory retirements may prove workable – one which half the appointees must retire from office every five years such that no individual member may serve for more than ten years as an independent member of second chamber – the sole exception being the first tranche of retiring members, i.e. those who stand down after the first five year term of the new chamber, who would be eligible to reapply immediately for a second full ten-year term so as to bed in the retirement system.

To some extent, I’m kicking ideas around here in the hope of sparking a debate – the key point to take from all this is that in some way, shape or form, I feel it important that a second chamber include a reasonable contingent on independent members who are not tied or beholden to any particular political party and, when considering legislation, not subject to the control of party whips.

A new second chamber in this, or a broadly similar form, would be a start in modernising our present system of government, but only a start.

As recent years and recent governments have clearly demonstrated, a rag-bag constitution, much of which is unwritten and based on convention, offers insufficient safeguards against the Manichean ambitions of political leader with a commanding majority in the House of Commons and the will to use that majority to toss out any conventions which they see as inconvenient and centralise ever more power and authority on their own office and those of their close cabinet colleagues.

A new second chamber is but a starting point for reform – reform that of necessity should include a written constitution and a constitutional bill of rights backed up an independent Supreme Court with the power and authority to strike down unconstitutional legislation, a clearly defined separation of powers between the executive and the judiciary based on the principle that politicians should not exercise judicial or quasi-judicial powers and greater non-partisan oversight of government – a role ideally suited the kind of new second chamber outlined above.

A range of other measures will also be required to redress the imbalance in power between executive, legislature and judiciary that has been manufactured by successive government over the last 25 years – Yes, the Tories had their Manichean moments too, none more so than in putting in place amendments to the Official Secrets Act which define the interests of the government and the state as being synonymous while removing the right to a public interest defence from Civil Service whistleblowers. To give but one example, significant changes need to be made to the Inquiries Act to restore the principle that public inquiries report to and are undertaken under the aegis of Parliament, not of individual Ministers.

Lords reform is no bad thing in itself, but lets not be fooled here into thinking that it may offer a solution to the ongoing decline in parliamentary democracy which now so badly damaged the trust of citizens in the democratic process that more people refused to vote at the last election than bothered to vote for an individual political party. It is a start and nothing more – what is needed is root and branch reform which places the citizen at the heart of democracy not a small and increasingly out of touch and unrepresentative elite at the heart of government.