Memorandum by Dr Tony Wright MP (LR 2)
EVIDENCE TO THE ROYAL COMMISSION ON REFORM
OF THE HOUSE OF LORDS
"Who lies i' the second chamber?"
"If we had an ideal House of Commons
.... it is certain we should not need a higher chamber" (Bagehot)
1. In this evidence I confine my remarks
to those matters which I believe to be of fundamental importance
and on which I have an opinion. The evidence therefore makes no
attempt to cover the whole field of questions raised in the Commission's
consultation paper. My concern is with the general shape and direction
of the Commission's work, on which all else turns.
2. It is rare to have an opportunity to
review and reconstruct a central institution of the political
system, especially where reform has proved so elusive in the past.
Yet this also imposes a considerable responsibility: to find an
approach that both commands wide support now and proves durable
in the future. This means engaging with fundamentals. There will
be a temptation for the Commission (and perhaps pressures on it)
to find its way around issues rather than resolving them. I urge
the Commission not to succumb to fudge, either in its general
approach or in its particular recommendations. Only clarity of
analysis, and boldness of prescription, will ensure that this
is not another abortive episode of Lords reform.
3. The starting point has to be an understanding
of the central problem of the political system to which a reformed
second chamber would provide a significant part of the answer.
Unless the problem is properly identified, an appropriate response
is unlikely to be constructed. This precedes questions about powers,
functions and composition. It is also why examination of second
chambers elsewhere may not prove especially useful, for they answer
(or should do) to the particular needs of different political
systems for example, to represent states in federal systems or
to reconcile divided and fragmented societies. Our situation,
and our need, is quite different. Those who identify the central
problem wrongly (for example, by suggesting that post-devolution
integration of the United Kingdom, or the need to represent under-represented
groups is the key issue) will also be mistaken in their proposed
remedies. A second chamber will only be effective if it is a response
to a need that has been correctly identified. It can certainly
perform several functions, and respond to a plurality of needs,
but its central role must be clear.
4. In my view there can be no serious doubt
that the distinctive feature of the British political system to
which a second chamber should provide a remedy is unchecked executive
power. A generation ago this was famously described as "elective
dictatorship". It is a commonplace among serious observers
that the concentration of executive power available to a party
government with a secure majority in Britain is unparalleled in
comparable democracies. This is an observation, not a judgement.
It reflects the way in which our political system has developed.
It is said to reflect a predilection for "strong" government.
One aspect of this, among many others, is the fact that we really
have a unicameral system, with two chambers.
5. The system is poorly constitutionalised,
lacking the familiar apparatus of checks and balances to be found
elsewhere. Some of these are currently being developed. Devolution
checks centralisation and promotes pluralism. The Human Right
Acts offers protection for citizens. Freedom of information checks
a traditional secrecy. Unregulated areas of the constitution (for
example, party funding) are being legislated for. These are important
developments, part of a constitutionalising trend, but they do
not go to the heart of executive power. This is where a reformed
second chamber is crucial.
6. Strong government has to be matched by
strong accountability. At the moment this is not the case, with
the result that the political system is unbalanced. The consequences,
not least in terms of poor legislation and inadequate scrutiny,
are well documented. It is the task of a reformed second chamber
to achieve the rebalancing that is required. The watchword of
reform should be accountability. It is this that identifies the
central problem of the British political system and points towards
the appropriate solution. In Britain an effective second chamber
should be seen as a house of accountability.
7. This inevitably requires some reference
to the House of Commons, for the relationship between the two
Houses determines the character of Parliament as a whole. The
Commons has many virtues, but accountability and scrutiny of a
serious kind are not among them. It was once described, accurately,
as the scene of a permanent election campaign. Its partisan character
routinely trumps its collegiate character. Its politics are rough
and raw. It lives on immediacy. Party dominates all; and its career
structure does not reward a concern for accountability. There
is no indication so far that the "modernisation" of
the Commons will alter this picture in any significant way. It
is because the Commons is like this that a reformed second chamber
is so essentialand why reform has to be crafted in such
a way that it is genuinely able to fill the accountability gap.
8. If this is seen as the task, then the
potentially troublesome questions about the relationship between
the Commons and a reformed second chamber become easier to answer.
The Commons is the primary chamber, always able in the last resort
to get its way. It is the directing, initiating and governing
chamber. It is rooted in an electoral system which (even in the
increasingly unlikely event of the Jenkins reforms being implemented
at some future date) has a bias towards the production of majority
party governments that have a final political accountability to
the electorate. None of this will, or should, change. What should
change is the ability and credibility of the second chamber in
relation to the continuous activity of accountability. A second
chamber is required that is neither a rival nor replica of the
primary chamber. Its role is to be genuinely complementary. It
is precisely because the Commons is like it is that the second
chamber has to be enabled to become what it needs to be in order
for Parliament as a whole to perform its functions more effectively.
9. The particular functions of the House
of Lordsin revising, amending, checking, scrutinising and
inquiringare well established. They can and should be developed
further, drawing upon the existing strengths of the Lords and
involving areas where parliamentary scrutiny is currently weak.
Obvious candidates are pre-legislative scrutiny (why is legislation
wanted and is it likely to work?), post-legislative scrutiny (how
well is the law working?), secondary legislation, Next Steps executive
agencies and quangos, and cross-cutting thematic inquiries on
complex issues (which the departmental select committees in the
Commons are not well equipped to undertake). European scrutiny,
already well established, provides a further area. A reformed
second chamber, charged with accountability, will have ample scope
to develop its functions and activities.
10. I agree with those who emphasise the
particular role of the second chamber in constitutional matters.
A feature of our system is the failure to make any distinction
between "ordinary" and "constitutional" legislation
(except in terms of certain procedural conventions). This is an
accountability gap that a second chamber should properly fill.
It is already recognised in terms of powers in relation to any
proposal to extend the life of a Parliament; and in terms of functions
in the work of the Delegated Powers and Deregulation Committee.
This constitutional role should now be made explicit and its implications
explored for other areas of activity. It should be the place where
standing scrutiny of our constitutional arrangements takes place.
I hope the Commission will pay particular attention to the ways
in which the role of the second chamber in constitutional matters
can be extended and strengthened.
11. This raises the matter of powers. In
my view the existing powers of the second chamber are generally
satisfactory, except in constitutional matters. The exemption
from the Parliament Act provisions in relation to any proposal
to extend the life of a Parliament should be extended to other
matters of fundamental constitutional importance (for example,
any attempt to remove the rights of opposition). On such matters
only a referendum should break a deadlock. Beyond this, in a reformed
second chamber the self-imposed constraints on powers (as with
the Salisbury Convention) will no longer be necessary or appropriate.
In a reformed second chamber, more confident in the use of its
existing powers, new arrangements will be needed to resolve disagreements
between the two Houses and prevent gridlock. Such arrangements
will enshrine the final primacy of the Commons, but also safeguard
the rights of the second chamber to be heard. This is another
matter to which the Commission will need to give particular attention.
12. None of this can be done satisfactorily
until and unless the matter of composition is resolve. Without
any underlying legitimacy (able to provide an answer to the question
of "who are these people?"), a reformed second chamber
will not fulfil its potential. Unless it has to be taken seriously,
it will not be taken seriously. This is the problem with the mixture
of inheritance and patronage in the present arrangements. If the
central task of a second chamber in Britain is to provide a check
on the power of a strong executive, matching strong government
with strong accountability, this can only be done effectively
if its legitimacy is clearly established.
13. How this is achieved is not as straightforward
as it might seem. It is necessary to balance different (and sometimes
competing) considerations. There is a strong case for direct election,
as this is the accepted basis of legitimacy in a democracy and
would create a chamber that could not be ignored. The case for
this approach is well made in the IPPR paper Reforming the
Lords (1993). If elections were held on a regional basis (with
party lists) this would also strengthen the post-devolution role
of the second chamber in representing the different parts of the
United Kingdom. Yet there are also drawbacks with a wholly elected
second chamber. Election is not the only route to legitimacy in
a democracy. Judges are not elected; nor are jurors. If a party
list system of election produced a second chamber made in the
image of party, more closely resembling the House of Commons,
this would erode the element of independence, which should instead
be strengthened if accountability is to be enhanced. It is not
clear how a party nominee on a closed list system is different
in substance from a direct appointee, even if the cloak of legitimacy
is somewhat stronger.
14. These considerations are different from
the usual ones about an elected second chamber being a rival to
the primary chamber. This would only be the case if its powers
were extended, or if could claim a superior electoral basis to
the Commons (for example, by being more proportional, or elected
more recently). These are not necessary or intrinsic difficulties;
though it is clearly important to create a robust chamber that
is not also a rival one. Considerations of this kind have led
some to propose an indirectly elected chamber (as with Bryce in
1918), as a third way between the Scylla of pure nomination and
the Charybdis of pure election. This also has attractions, if
an electoral college of a suitable kind could be identified (it
is doubtful if Bryce's proposal for regional groupings of MP's
would be acceptable) and if suitable and representative people
could be found who would not be found through the usual channels
of party and election. The same applies to the idea of "functional"
representation, based upon constituencies of interests and occupations.
15. Yet such schemes suffer from considerable
difficulties. Some are practical, making it difficult to see how
they would actually work. Others are more fundamental, and turn
on the question of legitimacy again. An indirectly elected body
would simply not have the clout that an effective second chamber
needs. This is even more true of a nominated body, whatever devices
were put in place to avoid crude patronage and to secure a spread
of representation. This is no doubt why the Conservative Party's
Home Report (1978) concluded that "moral authority can only
come from the direct election of its members"; and why Tony
Blair, in his John Smith Memorial lecture in 1996, said "We
have always favoured an elected second chamber".
16. Faced with this range of considerations,
the sensible course is to have the best of both worlds. This means
a mixed chamber. Legitimacy (and clout) demand that a majority
of members are directly elected. This will happen through the
party system, on a regional list basis, and give the chamber its
underlying political direction and organisation. Yet this needs
to be balanced by a strong non-partisan element, comprised of
people with the kind of experience and skills that such a chamber
of accountability requires (at a time when the Commons is increasingly
dominated by political professionals) and who would be excluded
if party and election were the only gatekeepers to public office
and public service. This should be the task of an Independent
Appointments Commission, cultivating applications from a wide
range of sources. I do not pronounce upon the exact balance, except
to insist that the elected element should predominate. Beyond
this, I believe that the denser the mixture the better. This would
further emphasise its difference from the Commons and strengthen
its identity. There is no reason why some elements of the non-directly
elected part of the chamber should not come from sources other
than nomination. For example, there could be an indirectly elected
element (perhaps on a regional basis) if a workable model could
be devised, an even a small element of statistical representation
(lot). There is more than one way in which people can be represented,
and more than one route through which suitable candidates for
public office can be found. Within a predominantly elected framework,
I would urge the Commission to be as imaginative as possible in
mixing the mix.
17. Difference from the Commons, and the
avoidance of conflict while maintaining independence, can also
be secured by further devices. These include fixed (non-renewal)
membership of the second chamber for nine years, with a rolling
(three-yearly) cycle of election. It might even be extended to
12 years (as Bryce proposed) if it was thought desirable to combine
elections with the four yearly elections to the European Parliament.
Such a rolling membership would ensure continuity, safeguard independence,
prevent party control and avoid rivalry with the Commons.
18. Other matters are secondary to this
general approach, but should not be dodged if reform is to be
durable and comprehensive. I mention just a few of them. If accountability
is to be the watchword of the new chamber, those factors, which
impede its effective operation in the Commons, should be attended
to. Party is one, but patronage is another. Considerations of
office holding are central to the life of the Commons. There is
a case for removing such considerations altogether from the new
second chamber, by removing office-holding. Ministers from the
Commons (whose numbers have grown faster than their workload over
the years) could attend upon the second chamber. I understand
the arguments of collegiality against such a proposal, but it
is something the Commission might nevertheless wish to consider.
19. Whatever else is done, the link between
membership of the second chamber and the honours system must be
broken. It is the source of much confusion and ineffectiveness.
If existing nomenclature was to be retained in the interest of
historical continuity, it would be a characteristically British
solution to have a House of Lords without Lords (with its members
plain "ML"). There is an obvious need to attend to the
position of the bishops and the law lords. It is not impossible
to have an inclusive chamber while maintaining the privileged
position of the bishops: they should join an enlarged category
of religious and spiritual representation. The judicial function
of the House of Lords should be organised separately: legal expertise
in the new chamber can be ensured by other means. Finally, the
present position of the Lord Chancellor is clearly anomalous:
even in a system which likes anomalies, reform of the second chamber
is the moment to reform this role too.
20. I believe that the approach to the reform
of the House of Lords sketched here would command wide support
and would prove durable. The emphasis on accountability defines
a clear mission for a new second chamber. It would fill a critical
gap in our constitutional arrangements, by linking strong government
with strong accountability, and make for better governance. It
would build upon, and extend, the current role of the Lords. The
combination of election and appointment (with the possibility
of other additions) ensures the legitimacy required to make a
second chamber robust enough to do its job with the expertise
and experience required for that job to be performed effectively.
If this is not to be another moment in the long history of abortive
Lords reform, it has to be a moment for realistic radicalism.