The House of Lords
The White PaperForeword
Chapter 1. Executive Summary
Chapter 2. Introduction: modernising the House of Lords.
Chapter 3. The present House of Lords.
Chapter 4. Role of a second chamber.
Chapter 5. Modernising the Lords: hereditary peers.
Chapter 6. Modernising the Lords: a transitional house.
Chapter 7. Modernising the Lords: longer-term reform - what should the modernised House do?
Chapter 8. Modernising the Lords: longer-term reform the compostion of a reformed House of Lords.
Back to the introduction.
MODERNISING THE LORDS:
LONGER-TERM REFORM THE COMPOSITION OF A REFORMED HOUSE
1. Central to the future House of Lords is its composition. For the House of Lords to act with legitimacy as an effective and balanced second chamber, it must have the right form to deliver the range of roles and functions it needs.
2. Within the principles laid down by its terms of reference, the principal task of the Royal Commission will be to make recommendations about the composition of the future House of Lords consistent with the role and functions it properly identifies.
3. Stable government, within a flexible and evolving constitutional framework, has been the hallmark of the British system since the end of the 17th century. Alone of all major European countries and of most other countries in other continents the United Kingdom has been able, at least on the mainland of Great Britain, to avoid violent constitutional convulsions for three centuries. It is essential that any reform of the House of Lords should be consistent with this important tradition of stability.
4. In drawing up its recommendations the Royal Commission will wish to take account of those characteristics of the present House of Lords which are widely regarded as among its more attractive features. These include the cross-bench element of the chamber, and the expertise and experience of individuals of distinction, from the professions, business and industry, the arts, and those who have given distinguished public service as politicians or public servants at a national or local level.
5. The Government considers that, with so many issues to be taken into account, there is no need for the Royal Commission to feel constrained to recommending a single method of determining the composition of the second chamber. It may very well be that a combination of sources is the best way of creating a body fitted for all the functions identified for it. Among overseas second chambers, several have a part nominated, part elected structure. For this reason, therefore, the terms of reference of the Royal Commission allow, as did those of the Independent Commission on the Voting System for the House of Commons, for the recommendation of a combination of proposals.
6. Numerous proposals have already been made for the best method of choosing the reformed second chamber. The Government's own view is that the best solution is likely to be found among the more conventional options of nomination and election.
7. The Government believes there are principally four models for the composition of a reformed House of Lords:
- a nominated chamber
- a directly elected chamber
- an indirectly elected chamber
- a mixed chamber.
A NOMINATED CHAMBER
8. Selecting the whole second chamber through nomination is a possible future model, though among major modern western democracies, only the Canadian Senate and the present House of Lords, apart from succeeding hereditary peers, are replenished solely by nomination. In both cases, the process is wholly controlled by the Government. The transitional House of Lords will also continue to be a wholly nominated body, though under the terms of our proposals, the process of appointments will no longer be controlled by the Government, perhaps suggesting a basis for an alternative model for a nominated House.
9. For the non-political cross-bench members, two routes might be considered. The first is to continue much as now, with a general trawl of suitable candidates for a central appointments process. Both self- and public nomination could be encouraged, alongside a positive search by whichever body was responsible for the appointments process. This could consult particular interest groups, or sponsors within the public service of particular professions. But those consulted would have no right directly to nominate to a seat in the second chamber. An Appointments Commission, on the lines of that being established for the transitional House, could take on this function.
10. The alternative approach is that frequently described as 'functional constituencies'. Under this, individual professions or groups of professions could be assigned a certain level of representation in the second chamber to which they would make direct nominations.
11. But there are difficulties in both approaches. One is that however the representatives are selected, those nominated might see themselves as delegates rather than representatives. They might feel obliged to serve the narrow interests of the body which sent them rather than the greater good, thus diminishing the central purpose of the House as presently conceived. Or they would feel unable to contribute on a personal basis to debates in which there is no functional interest and therefore on which they had not been mandated.
12. The system of functional constituencies is currently used, as the basis for an indirectly elected chamber, for the Irish Senate, and it is also the system used to determine half the membership of the Legislative Council of Hong Kong Special Administrative Region. But there are also potential disadvantages in such arrangements. In the Republic of Ireland in practice the elections are highly politicised. In Hong Kong the arrangements were criticised in some quarters. The introduction of a more restrictive franchise than that used for the 1995 elections and the use of corporate rather than individual voting led to concerns that the arrangements could not adequately reflect the spectrum of views of the working population.
13. For political appointments the most obvious approach would be nomination by the central party machinery. Further thought would have to be given, in the light of developments in other parts of the democratic process, to the question of whether central rules should be laid down about how this would be done or whether each party would have the right to determine its own processes, subject only to the agreement of its members, as is now the case. There would be a case for considering an enhanced role in overseeing this process for the Appointments Commission, if it continued to function.
14. A common factor, which would have to be taken into account in all possible nomination processes, is the length of time which members would serve and whether their terms would be renewable. At one extreme is the present House of Lords, where membership except for the Bishops is for life. At the other, one could have a body made up of ex officio members most of whose terms of office were less than three years. The advantage of long, and nonrenewable, terms is that the members of the second chamber would truly be independent in that nothing which they did could affect their continued membership. They would, however, be difficult to reconcile with a number of the possible methods of nomination (and, indeed, of election).
15. There are clear advantages and disadvantages to a nominated House. Among the advantages are:
- Range of representation. The range of experience of those who enter elected politics is becoming increasingly narrow. If the second chamber is to be fully representative of all sectors of the community and talents of the nation, there are advantages in even those taking a party whip being appointed, not elected.
- Independence. One of the main purposes of a second chamber is to allow considered revision of legislation. This process should be enhanced if there is a significant proportion of the membership for whom there is no presumption as to whether they support the Government. A nominated House retains the option that a significant element of the House is both selected and makes its judgements on a basis other than that of party allegiance.
- Expertise. The contribution of the second chamber would be enhanced by the presence of people with significant specialist expertise in some areas.
- Status. There would be no risk of the second chamber endangering the supremacy of the House of Commons.
- Continuity. Constitutional reform in the United Kingdom has normally been gradual and incremental. This has contributed to the basic stability of the United Kingdom's system. Continuing with a nominated system would be more of a gradual and incremental change.
- Ex officio members. The present ex officio membership of the House could be retained and even extended.
- Cost. A wholly nominated body, involving the least change from the present system, is also the least likely to make significantly increased demands for resources.
16. Among the disadvantages are:
- Question of democracy. Some will argue that a system which contains no element of election, even indirect election, cannot be democratic or even properly representative of society as a whole.
- Fine-tuning. The search for a perfect representative body would involve too much interference in the selection of members.
- Delegates. Too overtly representative a body might turn into an assembly of delegates.
A DIRECTLY ELECTED CHAMBER
17. Two factors will help determine the worth and the value of an elected second chamber. First, the need to ensure that the supremacy of the House of Commons is not undermined by the House of Lords: a fully directly elected second chamber would inevitably have a significant impact on the relationship between the two Houses. Second, the political landscape within which the reformed second chamber will operate: at a time of fundamental change in many aspects of the United Kingdom's constitutional arrangements, this is of particular relevance more so, probably, than at the time of any earlier attempts at reform.
18. Under a system of direct elections, the whole electorate would be given the opportunity to vote. The Government has introduced new methods of voting for the devolved bodies and for elections to the European Parliament. The Independent Commission on the Voting System has reported on a possible alternative system for the House of Commons. (Its report contains a factual description of a number of possible methods of election.)
19. Many countries try to make their electoral systems for the second chamber as distinct as possible from those for the first chamber. Apart from the obvious distinction of having one chamber directly elected and the other indirectly elected, having a different electoral system is one method of achieving this. Two other variants which apply frequently are:
- holding the election on a different cycle; and
- electing only a proportion of members on each occasion, usually one-third.
Both these can be applied to either indirectly or directly elected second chambers, but they are of particular significance with direct elections because of the implications for the first chamber.
20. Phasing of elections in particular gives those elected a longer term of office. It also reduces the effect of swings in public opinion. Both factors can contribute to the stability of a second chamber and its ability to regard issues from a longer-term and wider perspective.
21. On the other hand, elections by different systems, or on different dates, or for different proportions of members for the second chamber than for the first, could be a recipe for conflict between the two chambers and therefore for constitutional instability, within a system substantially based on party political lines.
AN INDIRECTLY ELECTED CHAMBER
22. About 30 per cent of overseas second chambers are elected by indirect methods, including France, the Netherlands and South Africa. Indirect elections can be found in both unitary and federal states. The electoral college often consists of members of local authorities or regional assemblies, and may include members of the primary chamber.
23. With regard to party political members, indirect elections to the future second chamber by bodies with specific local interests could work well alongside a system of UK-wide political appointments. The United Kingdom Parliament has now passed legislation establishing the devolved institutions of the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly. All are intended to begin to operate in 1999.
24. There is in addition the beginning of a process in England for a stronger voice for the regions, each of which is similar in population, or larger, than the other nations of the Union. Regional Development Agencies and voluntary regional chambers based on existing networks of local authorities are already being established. A Bill to establish a Mayor and Assembly for Greater London is passing through Parliament with the intention of holding elections in May 2000.
25. Indirect election by these bodies would have two advantages. First, it would demonstrate a direct connection between these other bodies and the central institutions at Westminster. This is a common role for second chambers to play in other countries. Second, it would mean that in many cases those selecting the members had themselves been elected. It could therefore reinforce the democratic nature of an otherwise nominated House.
26. The Royal Commission may also wish to examine whether there is a possible role which could be played by MEPs in the second chamber, through a contribution to an indirect election system. The House of Lords already plays an important role in the examination of European legislation and it may be that there are reforms which can enable it to become even more effective in this task.
27. It would be for consideration whether those representatives had to be chosen from the institutions and the MEPs which formed the electoral college. If the Commission were attracted to this basic principle it would no doubt wish to take evidence, including from the devolved institutions themselves, as to how this part of the system might operate.
Advantages and disadvantages of the elected options
28. As with a nominated House, there is a balance of advantages and disadvantages in an elected second chamber. Directly and indirectly elected bodies share in these, although the extent to which they do so varies considerably. The main advantages are:
- Legitimacy. There can be no doubt about the democratic mandate of an elected body. The people, directly or indirectly, would have given their consent to the formation of the whole of their legislature.
- Status of members. It would be made clear that membership of the second chamber was a job with specific and important duties attached.
- Representation. All parts of the country and all shades of political opinion could be represented.
- Age. An elected House is likely to have more younger people in it than a nominated one, especially on the political benches, where at present many life peers are ex-MPs past retirement age.
- Entrenched bicameralism. Setting up an elected second chamber would be an unequivocal sign that the Government was committed to a bicameral legislature.
29. The main disadvantages are:
- Conflict with the House of Commons. Extreme care would be necessary in devising an electoral system which did not set up a chamber with both the desire and the authority to use its powers to the extent that it actually challenged the supremacy of the House of Commons on the strength of its separate electoral mandate. This is of particular importance if the second chamber were to be directly elected.
- Loss of independents. A wholly elected second chamber would make it virtually impossible to retain any independent, non-party element in the House.
- Loss of ex officio membership. This would become much more of an anomaly and would probably be impossible to sustain.
- Transitional difficulties. The transition to a fully elected House is the most disruptive, especially if an electoral system were chosen where the whole House was elected at the same time.
- Higher costs. The costs of both the elections themselves and the need to provide proper salaries and research facilities for elected members would considerably increase the costs of the second chamber.
A MIXED CHAMBER
30. Looking at the advantages and problems of both a wholly nominated and a wholly elected House of Lords indicates three main themes against which any form of the House is likely to be judged: its legitimacy and fitness for its purpose, its independence, and its relationship with the House of Commons.
31. A wholly nominated House of Lords may be regarded as lacking in legitimacy and independence from the executive. On the other hand, it does provide for the representation of views other than those of the political parties, it is significantly different from the House of Commons and it does not challenge the supremacy of the Commons.
32. A wholly elected second chamber would clearly have legitimacy and its membership would be independent of the executive. It would, however, be dominated by the political parties. Its relationship with the House of Commons could pose considerable problems, and its ability to perform a significantly different role in the constitution could be weak.
33. A mixed House would combine elements of nomination and election. This solution has been advocated in the past for example in the report prepared by the late Lord Home of the Hirsel in 19788 and has a number of champions in the present. Lord Home's report recommended a two-thirds directly elected and one-third nominated House, and several other more recent proposals have picked this up. There is, however, nothing peculiarly compelling about that balance. Up to two-thirds elected, especially if this were to be directly elected, could in terms of relationships with the House of Commons share many of the disadvantages of a wholly elected second chamber.
34. The most important consideration in judging the balance of membership would be what combination best fulfilled the functions the second chamber was being asked to perform. It may also be that more than two methods of selecting members of the second chamber would be appropriate.
35. The advantages of the right combination of a nominated and indirectly or directly elected chamber could be significant. It would combine some of the most valued features of the present House of Lords with a democratic basis suitable for a modern legislative chamber. In particular, the continued presence of nominated members, especially those who did not identify themselves with a particular party, would ensure that the second chamber retained these specific advantages of a wholly nominated House:
- Independent scrutiny. An independent contribution to the scrutiny and revision of legislation.
- Wide range of interests. Recruitment of members of the second chamber from a wider range of interests than those who are likely to be attracted to a career in politics.
- Expertise. Access to specialist expertise within the House itself. This could be particularly important if the scrutiny function of the second chamber were enhanced.
- Broader representation. The ability to correct for under-representation of particular groups, including women and ethnic minorities.
- Ex officio members. The ability to accommodate the existing ex officio membership of the House of Lords, if it were decided that no change in the relationship of the second chamber to the legal system or in the relationship of the Church of England to Parliament was desirable.
- Distinctiveness. A body that is clearly distinctive from the House of Commons, but yet with the ability to speak with the authority of expertise when necessary.
36. A mixed second chamber would also retain these specific advantages of an elected House:
- Legitimacy. The legitimacy that comes from an electoral mandate.
- Status. A clear message about the status of members.
- Range. An automatic way of ensuring a proper geographical spread of representation.
- Age. An enhanced likelihood of getting a significant number of younger people into the second chamber.
- Two chambers. A clear commitment to a bicameral system.
37. A mixed House, therefore, allows a variety and breadth of membership, and the combination of the best features of the present House with an indubitably democratic method of selection. It enables a number of factors which are regarded as important to be accommodated in a way which neither a fully elected nor a wholly nominated House would do.
38. Britain needs a modern, balanced and effective second Parliamentary chamber. We are confident that the measures proposed in this White Paper on modernising the House of Lords will achieve:
- the removal of the purely hereditary basis of the majority of the House;
- improved arrangements for the nomination of life peers in the transitional House;
- further longer-term reform, following the recommendations of a Royal Commission.
Each of these steps is individually significant. But taken together, they amount to a comprehensive and radical programme of reform. We believe they will be widely welcomed and widely supported across the country. They will modernise the House of Lords. They will give the House a new legitimacy. They will reshape a key element of the United Kingdom's central democratic institution. They will create the modern second chamber of Parliament which Britain must have as we enter the 21st century.
.The House of Lords: Report
of the Conservative Review Committee, Conservative Central Office, 1978.