Monday, 8 January 2018
House of Lords ~ Size and Reform
The Parliament Act 1911 begins by stating that it is...
"An Act to make provision with respect to the powers of the House of Lords in relation to those of the House of Commons, and to limit the duration of Parliament.
Whereas it is expedient that provision should be made for regulating the relations between the two Houses of Parliament:
And whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation ....."
An unelected and large Chamber:
107 years later the House of Lords remains unelected but, unlike 1911, its principal membership is no longer made up of hereditary peers. This came about because of key reforms such as the introduction of Life Peerages (Life Peerages Act 1958) and the removal of most of the hereditary peers (House of Lords Act 1999).
We see from the Life Peerages Act 1958 that life peerages are conferred by Her Majesty and that a life peer becomes entitled to receive a writ of summons "to attend the House of Lords and sit and vote therein accordingly."
The House of Lords has a considerable size. At 27th January 2016 - see HERE - the total membership (the ‘absolute’ membership) of the House of Lords was 859. However, excluding those currently ineligible to sit (such as Members on leave of absence or those holding particular posts) the ‘actual’ membership was 820.
The creation of peers:
The right to create peerages is a Royal Prerogative power and it is obviously of considerable importance given the entitlement of the holder to become part of the legislature. The process for creating new peers is considered at Parliament - How Members are Appointed. Members of the House of Lords are appointed by the Queen on the advice of the prime minister. Whilst there are no set times for the making of appointments, it has become common for new peers to be created at times such as a Dissolution of Parliament. Some non-party-political members are recommended by an independent body, the House of Lords Appointments Commission which is an independent body established in 2000. The Commission recommends individuals for appointment as non-party-political life peers. It also vets nominations for life peers, including those nominated by the UK political parties, to ensure the highest standards of propriety. Members can be nominated by the public and political parties. Once approved by the prime minister, appointments are formalised by the Queen.
The creation of peers runs against the democratic ideal of a wholly elected Parliament because it is essentially a means of appointing individuals to Parliament. Protocol 1 - Article 3 to the European Convention on Human Rights requires free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. In the UK, the people have no ballot on the membership of the House of Lords.
The idea that it is a requirement of democracy to elect the House of Lords has not gone unchallenged. For example, Professor Sir John Baker, Downing Professor Emeritus of the Laws of England at the University of Cambridge, challenged "the widespread assumption that the House of Lords must be elected as a requirement of democracy. That seems to me to be quite a serious fallacy given the unusual nature of our constitution" - The House's essential scrutiny role "does not require the sanction of the ballot box to give it legitimacy any more than the judicial role, because the House of Commons can insist on the last word"- [for this and other views see the Joint Committee on the Draft House of Lords Reform Bill report of March 2012 - The principle of an electoral mandate].
Whether an elected House of Lords would challenge the supremacy of the House of Commons is a point often raised in debate on this topic. The "supremacy" of the Commons in relation to Money Bills is now built into the Parliament Acts. Furthermore, the Parliament Acts have resulted in the Lords having a delaying power but not an absolute veto on legislation. (The absolute veto remains for any Bill containing any provision to extend the maximum duration of Parliament beyond five years). There is also the "Salisbury Convention" - authoritatively discussed by Professor Mark Elliott of Cambridge University on his Public Law for Everyone blog - HERE. The Convention normally limits the Lords ability to block legislation implementing manifesto commitments of the government.
Rodney Brazier - (Professor of Constitutional Law, University of Manchester) - in his book "Constitutional Reform - Reshaping the British Political System" (OUP 3rd Ed) refers to the "Second-Chamber Paradox" (chapter 5). Brazier argues that, on the one hand, our Parliament is enhanced by the presence of some people from outside the world of politics who bring their individual experience and expertise to bear. Further, the House tends to look at legislation with "something approaching an impartial rigour" and the House is therefore a counterweight to the elective dictatorship. On the other hand, a House without elected members is "anomalous and unrepresentative."