Primacy: Lords reform and the nature of mandate

It is widely recognised that power comes in two forms; that which is imbued by rules and that which is accrued. London Mayor Ken Livingstone, has accrued more powers that those conferred on him by the GLA Act, largely through his willingness to make proposals and statements and effectively "dare" those holding the power to contradict him. His intervention over the London Eye row is an example of this. Equally, powers can atrophy and an example of this would be the Monarch's decreasing potency in parliament over the last century. The choice of Prime Minister has passed from the Monarch to the majority party without any rules being changed.

This understanding of the dynamic nature of power is essential if we are to conclude satisfactorily any reform of the House of Lords.


But first, there are two red herrings to discount. The name of the second chamber is mostly irrelevant and the transition arrangements too seem more like a bargaining chip to be negotiated than a meaningful contribution to the debate on the future of the Lords.

One assumption is set in stone. Parliament will not pass measures for a second chamber that fail to protect the primacy of the Commons any more than turkeys will vote for bird-flu. No-one has yet made a convincing case to me why the retention of this primacy is good for the running of our democracy, yet it is clear that the Commons will not willingly dilute its power and the Lords use the Commons primacy argument as a case for minimising change. So we have to work from the standpoint of protecting Commons primacy or achieve no reform at all.

I have given the matter of mandate some thought and have settled upon some headings to think about when considering reform of the Lords and the nature of its mandate. These headings are by no means comprehensive and I would be grateful to those readers willing to add to the list and debate them further. Furthermore, they are a little arbitrary and you could in some cases move a factor from one heading to another, so headings are less important then the factors described within them. These headings are:

Term
Constituency
Party affiliation
Rules
Representativeness

Term
Term encompasses two aspects of an elected representative's mandate that stem from the date of election. The principle is that your mandate is at its greatest point on the day that you are elected and that it drifts away day by day after that point. The first aspect is the date itself. To retain the primacy of the Commons, the Lords should never have a newer mandate - elections should be on the same day. The second aspect refers to the length of term. If the level of mandate reduces over time, then it would make sense for Lords to be elected for a longer term than MPs if the Commons' primacy is to be retained. However, in order to comply with the "same date" assumption, then peers would have to be elected every second or third general election or by another measure. For example, you could decree that the Lords are elected at the first general election in each decade.

Constituency
This aspect of mandate refers to the relationship between the electors and their representatives. A large constituency implies a more distant relationship than a small constituency. A constituency where there are many elected representatives for the same boundaries implies a lesser mandate than having a single representative for the same boundaries. An example, perhaps a poor one, would be the relative attention received by the Mayor of London and the sum of attention received by London's nine members of the European Parliament. Thirdly, we could discuss further the relationship between the representative and their constituents. Banning peers from undertaking casework, obliging them to forward such queries to the relevant MP would help to distance peers from their constituents. In short, to protect the primacy of the Commons, it would make sense to have large constituencies, multiply represented and to ban casework, reject funding of casework support and reject the funding of a constituency office, though it would be impossible to prevent a peer from self-funding an office.

Party relationship
MPs are aware that the personal vote in an election is usually very small and rarely the deciding factor between winning and losing office. People tend to vote along party lines. However, party affiliation has been identified as a weakness to be addressed in the context of Lords reform. My personal view is that political parties are a necessary evil - the flaw we accept in order to have a workable democracy; a short-hand so that voters can assess what their potential representatives stand for without having to wade through reams of personal manifestos. However, it would be wrong to address Lords reform without looking at party affiliation. Firstly, party affiliation does impact mandate. Being elected on a group manifesto makes it easier for the whips to insist on support for a specific policy and no party cares particularly for reducing their mandate in the Lords when they have an opportunity to save or to bring down a government. Even on those occasions when the House of Lords has been magnanimous, it has been due largely to its awareness that not to be so would hasten reform. Under Attlee for example, there was a massive anti-government majority in the Lords, yet they were aware that the landslide victory for Labour in the Commons was such that if they blocked legislation in the manifesto, there would be public outcry for the abolition of hereditary peers. In this and all other such examples, the Lords has been more pragmatic than noble.

But what to do? It is unthinkable that a Lords whip could be banned as it would happen informally if it were not formalised. In short, the relationship stems from the parties' ability to select their own candidates and to order them in preference on a list under some electoral formats. This is where we could break the party link. Allow anyone to stand and make it an offence to induce or coerce anyone not to do so. Furthermore, there could be one leaflet drop, organised centrally, where candidates' two-sided A4 manifestos are bound and delivered to voters (it may be better to present candidates only on the internet and to spend the resources saved on helping those who have difficulty accessing the internet). You could ban party endorsements and allow candidates to say what party they support if they wish or not if they don't wish to say so. Under such a system, Peers would apply to be subject to the party whip once elected and of course, the parties would be free to reject such applications if they felt the individual's personal manifesto was unsuitable or for any other reason.

However, this option would raise another problem. It sets no practical limit on the number of candidates and measures to do so, for example, raising the deposit payable or the refund threshold, could serve to block the candidacies of poorer people. Nevertheless, the possibility of retaining large sums of deposit monies could offset at least some of the costs of the particular counting difficulties raised by a system where there are many candidates. Yet with modern technology, the possibility of electronic voting and the opportunity for searching through large numbers of candidates using the internet, and the means of micro-engagement offered by the internet, it may be worthwhile allowing some sort of direct democracy of this kind.

Rules
It seems apparent that no elected second chamber will come into being without a codification of the rules of that House and the powers that its members may exercise. To add to these rules, it would seem sensible to include a job-description for elected peers, which would help serve to limit their influence.

Representativeness
This comes last and is instinctively the most difficult for me to promote. The principle is that the more the second chamber looks like the country, the greater it's mandate on the basis of how well it represents the people of the country. This is a dangerous arena because it would be quite easy to make an elected Lords more representative than the Commons. Regional PR on party lists has more scope than First Past The Post for being effective at electing ethnic minorities and the principle of "zipping" men and women on party lists guarantees near parity of gender. In the mission to secure a the primacy of the Commons, the unelected Lords, disproportionately male, white, upper class, wealthy and old, holds a trump card. It would be hard indeed to elect a less representative body of representatives and it would be hard for me to promote such a system. The only way to do so is to exclude people on the basis of age, race, gender or other factors, yet this would clearly be illegal. Instead, we could exclude people on the basis of lack of wealth, essentially allowing candidacies only from people willing to pay £100,000 - yet this too would not sit well with most people, including me - even though it may be legal if the Sale of Peerages Act were revoked.

It is a strange circumstance of the Lords that it is so unrepresentative that it would be illegal for us to replicate it. In fact, I wonder if the nature of appointments to the Lords now would stand up to a Human Rights Act challenge. Yet this is the single aspect of the Lords that can be presented as a strength when comparing it to a variety of elected alternatives, because of it's protection of the Commons mandate.

In conclusion
Elections are expensive to run and many of the steps that can be taken to protect the primacy of the Commons would either make such elections more expensive or would reduce the point of voting in the first place. What would be the point of voting for a chamber that has been individually and corporately neutered to a stub that could never grow back, however carefully nurtured?

The Lords is an irrelevance, an anachronism and an insult to Britain's citizens in the 21st Century. Our representatives should think upon why they wish to retain the primacy of the Commons and whether that really is in the interests of our nation or just in the interests of those sitting in the Commons.

If it is not in the interests of Britain for the Commons to retain primacy, then we don't need to fudge the system so it impacts the mandate. And I should warn MPs that if they give people a Mickey Mouse chamber with no real reason to vote, then they will provide a vacuum wherein unwholesome forces can provide alternative reasons to vote. I can foresee a situation where the BNP and other extremists exhort voters to use the Lords for protest votes because the Lords has no power so it is safe to do so.

If on the other hand primacy as a principle can be supported honestly, then there is no need to elect the Lords at all. Just hold a lottery that anyone can enter and the winners are drawn 50:50 male and female from each region. This would be significantly more cost-effective than running elections for a chamber made impotent by MPs' fear of losing authority, particularly when that authority is so rarely used it might as well be a mirage.


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Re: Primacy: Lords reform (#1)

I don't believe that the upper house should be greatly weaker than the Commons. I still think the Commons should be the primary chamber but only slightly so. The new upper house should have the right to block bills completely if it thinks that is the right thing to do.

However, if this is ever to be the case then all members of the upper house must be elected.

Lords Reform (#2)

How about electing the Commons as now, but electing the Lords by closed list PR, a'la Europe? That way a majority will never be had in the Lords, parties can still influence who sits there, and the Commons continues as the primary House.

Re: Lords Reform (#3)

I suspect that's more or less what we'll end up with. All parties are allowing a free vote on the portion of the reformed House of Lords will be elected and MPs arent going to vote for only a 50% election portion.

swathes of Labour and Lib Dem MPs will vote for 80 or 100% elected. Probably a lot of Tories too. I'd be suprised if we ended up with more than 20% appointed (if that)

Re: Lords Reform (#4)

I think you are right. 50% elected together with the 30% political appointees would in fact mean an 80% political Chamber. The remainder 20% expert appointees, seems about right. Lets not split hairs over the 30% appointees: each party will want to ensure that they get their best people in without an election; its rather like putting them into 'ultra safe seats'. Straw's proposals make sense, and MP's woud be idiots to turn it down. But you never can tell with some MP's.

Re: Primacy: Lords reform (#5)

Thanks Alex, for a very well written and thought provoking piece.

I think you are missing a heading: "So why does the primacy of the Commons have to be maintained"?

I think that the key point in reform is "What does the House of Lords do" and perhaps that is a missing heading?  I think that it needs to be summed up in a sentence or two so that the public can grasp what it is all about very quickly.

So what does the Lords do at present?  My take is that
a) revises non-financial legislation
b) delays non-financial legisalation
c) can reject bills twice but then the parliament act will enforce the will of the commons

I'm not sure how
d) I can contact/lobby a lord to change anything and whether they have to represent me at all
e) I can identify which lords are interested in a specific subject
f) Lords can raise a piece of legislation - is it always in the Commons?

I'm sure that the Commons does or could do more revising and delaying, and I know how to contact my MP.  So why do we need the "irrelevance" of the Lords anyway?

Because the Executive (ie the Government) have too much power over the Commons and can whip through legislation?  So why reform the Lords when the issue is with the Commons?

As you say in your conculsion, the real issue is the assumption that the Commons has primacy because of the mandate.  How can this assumption be challenged?