The House of Lords
The White Paper
Foreword
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.
CHAPTER 7
MODERNISING THE LORDS:
LONGER-TERM REFORM WHAT
SHOULD THE MODERNISED HOUSE DO?
1. The Government will remove the right of hereditary peers to sit and vote in the House of Lords as a self-contained reform. But this change will also be a prelude to further reform of the House. The Government is firmly committed to longer-term reform of the Lords aimed at producing a chamber which is more representative of the country as a whole.
2. The Government believes that longer-term reform of the House of Lords should take into account the widest possible range of views on the issues involved, which are of great constitutional importance and complexity. Successful proposals will have an impact on every part of our political structure. That is why we thought it appropriate to appoint a Royal Commission to analyse the options.
3. The terms of reference of the Royal Commission will be:
''Having regard to the need to maintain the position of the House of Commons as the pre-eminent chamber of Parliament and taking particular account of the present nature of the constitutional settlement, including the newly devolved institutions, the impact of the Human Rights Act and developing relations with the European Union:
- to consider and make recommendations on the role and functions of a second chamber; and
- to make recommendations on the method or combination of methods of composition required to constitute a second chamber fit for that role and those functions.
- to report by 31 December 1999.''
4. Once the Royal Commission has reported, the Government will then establish the proposed Joint Committee of both Houses of Parliament to examine the Parliamentary implications of the Commission's work. It, too, will be asked to work speedily.
5. The Government wishes the Royal Commission to analyse a range of options. But there will be two guiding principles that the Government feels it appropriate to impose on the Royal Commission's deliberations. The first is the timetable. The tight timetable will provide for the Commission's recommendations to be completed in sufficient time for the Government to respond to the Commission's recommendations in advance of the next general election.
6. The second underlying principle is that the Royal Commission's proposals for the reformed second chamber must make it clear that it remains the subordinate chamber. The following elements of the constitutional settlement must therefore remain untouched:
- a general election to the Commons must determine who forms the Government, and the ability of the Government to retain the confidence of the House of Commons is alone crucial to its right to remain in office;
- the Commons must continue to have sole powers over the provision of financial support for the Government;
- the Government must ultimately have the right to secure any of its legislation introduced in the Commons with the consent of the Commons alone, except for a Bill to extend the life of a Parliament.
ROLE
7. The role of the second chamber should continue to complement rather than duplicate the role of the House of Commons. The House of Lords provides a valuable function of scrutiny without which the burden on the House of Commons would be greater and the quality of government legislation diminished. As has previously been noted, over the past ten years the House of Lords has made nearly 2,000 amendments a year to government legislation. These are most often government amendments, frequently brought forward in response to points made in both Houses. Legislative scrutiny will continue to be an important purpose of a reformed second chamber.
8. By the time a fully reformed second chamber can be put in place, there will be devolved institutions in Scotland, Wales and Northern Ireland. London will have its directly elected Authority. English regionalism will be increasingly recognised through Regional Development Agencies and regional chambers. Some regions may be working towards regional assemblies of their own. The relationship of the second chamber to those bodies will need to be a significant part of the Royal Commission's deliberations; it could have a marked impact on both the second chamber's functions and how its members are selected.
9. One question which therefore arises is whether the second chamber should have some overt role as the representative of the regions, or of the regional bodies. This is a very common role for second chambers overseas. The French Senate, for example, has a special function in representing the 'communities' of France, reflected in the make-up of the electoral college which selects members of the Senate. Using the second chamber in this way would give it a role distinct from that of the House of Commons, where the local links will continue to be the much more immediate one of the MP and his or her constituents. The second chamber could provide a forum where diversity could find expression and dialogue, and where such an expression could work towards strengthening the Union.
10. The European Union, in which the United Kingdom is a leading partner, also has its own democratic institution, the European Parliament. MEPs in the future will be elected on a regional basis, so a role for them in relation to the second chamber would therefore reinforce its regional links as well as improving links between Westminster and Strasbourg.
FUNCTIONS
11. The functions of the present House of Lords have legislative, deliberative, interrogative and judicial elements. A key question for the Royal Commission on the future of the Lords, therefore, is whether all of these are necessary to make the second chamber a proper complement to the House of Commons. And if so, how should it best be constituted to deliver on all of them? The present House of Lords also has a role in giving a voice to organised religion at the highest levels of public deliberation.
Legislative
12. Of the possible roles for the second chamber, the traditional one of legislative scrutiny and a new one as the hub of a representative institutional network are, in the United Kingdom setting, in some tension with each other. Although they are both roles which occur frequently, in combination, in overseas second chambers, the constitutional settlements in those countries usually mean that each of the regional bodies has the same relationship with the centre. Few countries face the situation which will be the United Kingdom's immediately after the devolved institutions take up their duties, of having a central Parliament whose powers are different in relation to different parts of their country. Spain, perhaps, comes the closest to recognising regional identities through devolution rather than federalism, but even in Spain the process of devolution is further advanced and the different stages reached are now less diverse.
13. Whatever the precise arrangements for the second chamber's legislative contribution in the future, the Government believes that a reformed House of Lords must have the legitimacy to ensure the value of its recommendations for improvements to legislation, and that it can offer a distinctive and informed view on the issues that come before it. A body that cannot fulfil these functions, whatever contribution it might make in other areas, would, in the Government's view, be less than successful.
Deliberative
14. The present House of Lords' deliberative function has grown up alongside its legislative one. The House of Lords has always attached importance to its ability to provide general advice and to initiate a general debate on important issues of the day, in an atmosphere less pressurised than the House of Commons by party political issues. The likelihood that real expertise will be available in the Lords is an important factor in giving these debates an authority they might not otherwise have. The Government wants to see the future second chamber constituted so that it could continue to fulfil this function in a distinctive fashion.
15. The House of Lords' deliberative function through its select committee system is also, at present, distinct from that of the House of Commons. The Commons, partly because of the importance it attaches to being able to call the Government to account for its use of public funds, devotes most of its select committee work to the monitoring of individual government departments. The House of Lords has chosen instead to concentrate its select committee work in a different way which does not directly overlap with Commons committees and may address issues that impinge on a number of different departments. This work is frequently regarded as one of the Lords' most valuable contributions to the business of government, in its wider sense. It is a function that the Government would hope the fully reformed second chamber would be equipped to continue and even to expand.
16. At present, the House of Lords committees carry out a valuable scrutiny function. For example, its Committee on Delegated Powers and Deregulation examines all government legislation for proposals to allow the executive to amend primary legislation through the use of secondary legislation.
17. The House of Lords has an important role in scrutinising European legislation. Legislation emanating from the EU already has a significant impact in the United Kingdom and the range of its impact will extend as the provisions of the Amsterdam Treaty come into force. It is therefore essential that the United Kingdom makes use of every available opportunity to scrutinise and influence EU legislation. But improving the United Kingdom's input into the EU decision-making process goes beyond the scrutiny of legislative proposals, important as these are. There is certainly scope for more considered and wider-ranging analysis of the effect of EU policies across a range of issues. The present House of Lords has made a well-regarded contribution in this area, and this scrutiny function is one which the Government thinks could usefully be retained and expanded in the reformed House. This is one of the areas where a specific role for MEPs in the second chamber might yield particular benefits, so that each chamber could take advantage of the particular expertise of members of the other, and thereby maximise the effectiveness of the United Kingdom's input.
Interrogative
18. While the executive consists of the 'Crown-in-Parliament', the House of Lords has considered it a duty to question Ministers both in the House and in Committee. Most government departments are directly represented in the Lords, and those which are not have spokesmen appointed on their behalf. It would be difficult for the future second chamber to carry out its functions, in particular the revision of legislation, without direct access to Ministers.
Judicial
19. It is a very important part of the House of Lords' work that it constitutes the highest court in the land. That function is carried out by the specially selected peers known colloquially as the Law Lords and does not involve other peers. However, the Law Lords' presence has a significant effect on the ethos and contribution of the House as a whole. They are full members of the House, even when not sitting in a judicial capacity, although by convention they do not become involved in politically contentious issues. The contemporary rationale for the Law Lords being life peers as opposed to ex officio members of the House is the major contribution they can make to the cross-bench element in the House. Thus they remain members, even after their retirement as Law Lords. The retired Law Lords play a particularly distinguished role in the examination of legislation, especially that with a highly technical or legal content. Most significant is their contribution to debates on the administration of justice, penal policy and civil liberties, where law and politics intersect.
20. Whilst therefore the judicial system is kept quite separate from the political process, it is unusual, compared to most major democracies, to have judges sitting as members of the legislature in this way. It would therefore be legitimate to consider, when looking at fundamental reform of the purpose and nature of the House of Lords, whether the present arrangements should continue. But consideration would also have to be given to what this would do to the nature of Parliament as a whole, and how the supreme judicial authority could be reconstituted elsewhere in the system and where it could be suitably accommodated. Detailed proposals on this would fall outside the scope of the Royal Commission's terms of reference.
RELIGIOUS REPRESENTATION
21. The Government does not propose any change in the transitional House of Lords in the representation of the Church of England within the House. The Bishops often make a valuable contribution to the House because of their particular perspective and experience. To ensure that contribution remains available, the Government proposes to retain the present size of the Bishops' bench which we accept is justified, because the Church's official representation is made up of serving diocesan Bishops, who have duties which frequently call them away from the House. The present representation makes it possible for the Church to ensure its perspective is represented on all occasions when it would be particularly valuable.
22. The Government also recognises the importance of the House of Lords reflecting more accurately the multicultural nature of modern British society in which there are citizens of many faiths, and of none. We shall be looking for ways of increasing the representation in the Lords of other religious traditions. In particular, there is a case for examining the position of the Church of Scotland which is an established church but has never had representation as of right in the second chamber. However, at least during the first phase of our reforms, other religious representation will not take the form of providing regular representation such as is enjoyed by the Church of England. Nonetheless, considering if there is a way of overcoming the legal and practical difficulties of replicating that regular representation for other religious bodies should form one of the issues for examination in longer-term reform of the Lords.
POWERS
23. The present powers of the House of Lords are set out earlier in this White Paper. Only its legislative powers are presently constrained by statute. The Parliament Acts prevent the blocking of Money Bills and other public Bills introduced into the Commons. In other respects, the powers are theoretically the same as those of the Commons and spring from the House's character as a chamber of Parliament.
24. But as well as being constrained by the Parliament Acts, the House of Lords also observes self-denying ordinances in the use of its powers over legislation. The most important of these is, as has been noted, the Salisbury convention. But usually the Lords, conscious of their absence of a specific mandate, their political imbalance and the existence of inheritance as one of the qualifications for membership, have restrained themselves in other ways, going further than the actual legislative constraints on their powers.
25. The powers of the House of Lords, as normally exercised in practice observing the conventions, have most often produced a workable relationship between the two Houses of Parliament. It might be possible to replicate this situation with the reformed second chamber, perhaps by institutionalising the understandings under which the present House of Lords operates; leaving the powers intact but restricting the circumstances in which they might be used.
26. A better approach might be to reduce the theoretically available powers, recognising that they might as a consequence be used more frequently. Areas where the powers of the second chamber might be looked at include:
- the length of time the Lords should be able to delay legislation approved by the House of Commons;
- arrangements to give government Bills introduced first into the second chamber the same protection as those introduced first into the House of Commons, so removing an artificial restraint on the management of Parliamentary business;
- any special procedures where the second chamber wishes to insist on amendments which have been considered and rejected by the House of Commons;
- any scope for formal conciliation arrangements between the two Houses, rather than the somewhat adversarial shuttle of business which takes place at present;
- the second chamber's powers over secondary legislation, in particular whether a power of delay should be substituted for the present power of rejection.
27. The Government recognises that the procedures of the House of Lords are a matter for the House alone to determine. However, it would see advantage in the Royal Commission, as part of its examination of legislative powers, also considering whether it wanted to make any recommendations to the House on changes in procedure to accompany its recommendations on powers.