Reform of House of Lords Membership

It can be submitted that the membership of the House of Lords has incurred some significant changes since the early 19th Century [1] , with the foundation of reform being laid down by The Parliament Act 1911. [2] However, the extent to which the composition has been altered is highly debatable. One can contend that the central focus of the reform appears to be the limitation of powers of the House of Lords as a legislative body, in contrast to altering its composition. This compositional reform is a subject which has been the cause of huge political upheaval and remains a prominent issue in the 21st Century [3] :

‘Reform of the House of Lords raises many complex and interrelated issues…but there has never been a better time to make progress.’ [4]

The House of Lords can be seen as an essential part of the UK constitution whereby it completes both the judicial and legislative functions. Its origins can be traced as far back as the 11th century, where councils were consulted by religious leaders and Kings. [5] It was in the 14th Century where there were two distinct Houses. [6] The Appellate Jurisdiction Act 1876 [7] enabled the creation of Law Lords as well as creating the judicial functions of the House of Lords in its modern form.

One can note that the House of Lords in an unelected body; for more than a century it has been perceived to be a ‘disabling lack of democratic legitimacy.’ [8] The public has never voted for any member of the House which exercises a degree of legislative authority; indeed it is this contention that has sparked proposals for reform. It can be proposed at this stage that it is almost impossible to assess the composition of the Lords without mention of its powers as a legislative body, and this is most prominent in the preamble of The Parliament Act 1911, where the two stances of law operate mutually.

There was considerable speculation even before The Parliament Act 1911 concerning primarily the unconstitutional composition [9] of the House of Lords. The early 20th Century saw the height of this resentment; it was the social reform pioneered by the Liberal party that was repeatedly obstructed by the Conservative majority [10] thus resulting in the implementation of the 1911 Act. [11] Following the rejection of the 1909 Finance Bill [12] The Parliament Act 1911 intended to ‘…restrict the existing powers of the House of Lords’ thus it seems that the focus was more on removing the veto power in contrast to ‘…removing the hereditary succession.’ One can assert that the Act was a result of pure political bias and in-house negotiation with an end result that differed from its intention.

On the contrary, the significance of The Parliament Act 1911 should not be undermined. It was an Act that paved the way forward for reform of the House of Lords; ‘…a preface to establishing a more democratic Second Chamber’ [13] Prior to The Parliament Act 1911, the House of Lords enjoyed equal power with the House of Commons, [14] yet this power was severely curtailed, although it can be asserted that:

‘…the effect of the Act is to restrict the power of the House of Lords, not to give power

to the Commons.’ [15]

Further to the 1911 Act, there have been numerous reforms aimed at changing the composition of the House of Lords; however it can be argued that these efforts have been repeatedly hindered with the focus turned on restricting the powers of the House. One prime example being The Parliament Act 1949 [16] where the initial intention was to remove the hereditary succession and to further restrict the power of the House of Lords. There were various proposals including; no permanent majority for any one political party; no hereditary succession and the fact that women should be capable of being appointed Lords of Parliament. [17] However, talks broke down in April 1948 with the only changes to be implemented being the reduction on the number of sessions in which a Bill must be passed by the Commons, and reducing the period between the first Second Reading and final passing in the Commons from two years to one. [18] There was also the Salisbury Convention that allowed the Commons to pass anything in manifesto without Lords Veto due to the political makeup and direct conflict of both Houses.

Consequently, it will not be incorrect to contend that the reform of the House of Lords has been somewhat restrictive, with proposals of reform being met with discontent. Nevertheless, the early 20th century, had seen a slight change in attitude towards the composition of the House with the introduction of The Life of Peerages Act 1958 [19] ultimately; ‘…transforming the House of Lords.’ [20] The Act enabled the Crown to create peerages for life thus enabling both men and for the first time women to sit and vote in the House of Lords with their peerages expiring upon their death; [21] completely abolishing the right to succession of peerage that existed prior to the 1958 Act. It can be asserted that the appointment of both Life and Hereditary Peers, with a wide range of expertise, has allowed debates to be better informed. [22]

Moreover, The Peerage Act 196 [23] 3 allowed hereditary peers to disclaim their peerage, allowing them to vote and stand for elections to the House of Commons. A joint committee of the Commons and Lords reported on this matter in 1962 where a person succeeding to a peerage may disclaim his peerage within one year of his succession. [24] However, one can contend that the Act itself allowed a form of choice, where emphasis can be placed on the word ‘may’ thus still posing the concern that an ‘unelected’ body has the right to interpret and make changes to legislation.

The House of Lords Act 1999 [25] , removed most of the Hereditary Peers, leaving all but 92 until the second phase of reform was complete. One can argue that the removal of the Hereditary Peers has in essence lead to a more balanced House as well as amending its most undesirable aspect of undemocratic values.

It can be argued that by looking back at the previous century, the House of Lords has experienced much change in relation to their composition and exercise of powers. Whereas The House of Lords Act 1999 has now completely removed the hereditary title of succession to peerage, the Constitutional Reform Act 2005 [26] has significantly reduced the importance of the House as a judicial and legislative body. Creation of a new Supreme Court has in essence decreased the validity of the House of Lords; the word ‘Court’ reflects on the more judicial qualities in contrast to solely legislative powers. However, the issue of democracy is yet to be abolished even so in the Supreme Court where Law Lords from the House of Lords are prevalent. Although one can make reference to the fact that part 4 of The Constitutional Reform Act 2005 creates a new appointing committee (JAC) [27] , assuming thus subsequent members of the Court will be elected by a select committee thus removing the abuse of power and political bias that is eminent in the House of Lords today.

Moreover, recent reforms/proposals can be looked at to see what shape the House may take in the near future. One can suggest that in principle, the House of Lords should preserve its integrity as a prominent constituent of the British Constitution with a remedy for its undemocratic nature. Conversely, it can be contended that this ‘undemocratic temperament’ [28] has not hindered the Lords from effectively perform its functions. It has been suggested that there be an abolition of the second chamber [29] however this proposal would lead to an impracticable Parliament as well as overloading the work of the Commons. [30]

Despite its undemocratic and unrepresentative nature, it is acceptable to propose that the House of Lords has a valuable part to play in the British constitution; its scrutinisation of Bills passed by the Commons; as well as its scrutiny of EU Legislation. [31]

‘…there is widespread agreement that the scrutiny procedures adopted by the Lords are amongst the most effective in the Community.’ [32]

Moreover, the 1968 White Paper [33] proposed a two-tier House consisting of both voting and non-voting members. [34] Yet it has also been proposed that there be a fully elected second chamber [35] however it can be submitted that the House would become biased as fully electing the members would lead to political turmoil [36] . It was these arguments that lead Lord Wakeham in 2000 to envisage a Chamber:

‘…at the heart of the UK’s system of parliamentary democracy…’ [37]

The Wakeham Commission proposed an Upper House, mainly nominated but partly elected. [38] However, issues may arise as to the procedure of the election and this was highlighted in the Governments response to the Report [39] . One can contend that the idea of adding some elected members to the House might create two ‘classes’ of members; [40] the elected members might be seen as having greater democratic legitimacy and authority than the appointed members. If the second Chamber were to be elected, it would become another party-political battleground thus ‘…a carbon copy chamber’ [41] seems rather unnecessary; ultimately rendering the Lords redundant as a constitutional body. [42] It is this conflict of interest that represents the party political deficit of two elected Chambers.

On the contrary it has been suggested that elections for the Lords be held at a different time to the general election with an intention to alter its composition. Yet it can be asserted that the Lords ‘might no longer be inhibited in their conduct by any sense of democratic illegitimacy.’ [43]

Nonetheless in November 2001 [44] the issue of political patronage was raised, maintaining the idea of a minority elected second chamber [45] ; 600 members of whom 120 (20%) would be elected. [46] However these proposals were deemed ineffective by both the House of Commons and Lords. [47] The latest proposals in the White Paper of 2007 [48] suggest a Hybrid House; where the Commons will not be challenged nor replicated. [49]

Reform of the House of Lords is an issue which has been on the political agenda for many years. Numerous proposals have been suggested with many convinced that a ‘Hybrid House’ is the way forward. Other proposals include the creation of a new body, without the legislative functions of the Lords; performing an advisory role thus alleviating the issue of democracy. [50] Although such a proposal may seem radical, it can be submitted that the ‘valuable functions’ of the House would remain. [51] Moreover, there have been proposals to create a select committee to nominate candidates for membership. [52]

Overall it can be agreed that there needs to be a balance between the democratic temperament of the Lords and its legislative authority; proposals by the Wakeham Report and 2007 White Paper could be enhanced. However one can propose that reform of the House has somewhat been exhausted with the only other proposition being a fully elected Chamber although both unfavourable and unlikely to occur. Nonetheless, consideration of Lord Bingham’s proposal with a new body ‘reorganised on a popular instead of hereditary basis’ appears to be the most desirable, yet whether this would see fulfillment is a matter in its own entirety. [53] It can be noted that this year marks the centenary of the 1911 Act which could see ‘the most far-reaching changes to the Lords since landmark reforms 100 years ago.’ [54]

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