Axing the House of Lords is a recipe for bad laws

The House of Lords chamber in session at the Houses of Parliament. Picture; AFP.

About ten years ago I received a call from David Cameron that I’d been expecting. The prime minister said he was minded to put my name forward to the House of Lords appointments commission. If he did, would I accept?

As I’d had a little warning, I’d had a chance to rearrange my professional life and consider the commitment involved, and I was ready to say yes. I was excited by the idea and flattered. The new challenge was welcome, I thought my Mum would like it (she did), and I thought I would find it interesting and worthwhile (I have). But I wasn’t entirely clear what I thought about the House itself. An unelected legislative chamber? Really?

A decade later, I’m much clearer. Inevitably, being a peer has reduced my objectivity, but hopefully that has been more than compensated for by what I’ve learnt.

The House needs reform. Badly. Being a member makes me feel that more strongly. It has given me a sense of the value of the Lords and made me more concerned about the way it operates. Most (not all, but most) lords feel this way.

The biggest problem, by far, is composition and appointment. A House intended to improve legislation using expertise and experience depends on the quality of its members. And if these are not to be elected, then they require the prime minister to show both integrity and restraint.

Perhaps these qualities could once have been relied on but it is obvious this is no longer the case. In Canada, an appointments commission interviews appropriate candidates for its unelected upper house, and provides the prime minister with a list from which he or she can fill any vacancies. This seems much preferable.

Members of the House of Lords debate the Brexit Bil in 2017. Picture; AFP.

The size of the Lords is the first thing people cite when criticising it, but I am not sure how much of a problem it really is. Most debates attract those with specialist knowledge and very few are oversubscribed. If the Lords had, to pick a number at random, only 200 members, they would all have to be generalists, which would rather defeat the point.

However, the other thing people always mention – the £332 daily cost allowance payable upon attendance – really does require reform. The money is intended to defray expenses, not as a wage, and there must be better ways to organise it. It has to change as it seriously and reasonably undermines public confidence, particularly as the House has grown.

So a reformed Lords is essential. And there are plenty of other reforms (term limits) and composition (more women, a bigger proportion of crossbenchers, as examples) that should also be considered.

But the replacement of the Lords with an elected house – Gordon Brown’s idea, to which Sir Keir Starmer is now committed – is a very bad idea. One which, should he actually go through with it, the whole country will regret for decades. And regret badly.

The Lords is thought of as a weak house with few powers to thwart the Commons. But this is a misunderstanding. It is actually a very strong House with a very wide range of powers that could stop the government in its tracks. It just chooses not to use them. Because it recognises that, as it is unelected, it would be inappropriate to go too far.

Instead it uses influence and persuasion to make important changes to laws. It is remarkably effective.

Britain's Houses of Parliament, comprising the House of Lords and House of Commons in central London. Picture: AFP.

For instance, the Lords does not vote on the second reading of bills, the stage at which the major principles of a piece of legislation are considered. If it did it could produce a lengthy, in some cases fatal, delay to an act. Similarly, the Lords will often amend bills to make technical improvements, but if the Commons rejects the change, the upper house will back down in the end. It needn’t. Only convention means that it does.

A fully elected House wouldn’t feel such restraint. Membership of the Lords has convinced me it is the knowledge of being unelected, the presence of crossbenchers and the relative sense of independence that prevents every vote from being a straight up and down party affair, one that pushes all powers to the limit.

An elected second chamber might have the same broad political composition as the government. If it did, it would wave through every law the governing party supported. There would be no room, for instance, for the sort of work done by the former Lord Chief Justice Lord Judge, when he spotted that the Ivory Act 2018 included frightening extensions of government powers of arrest and investigation. This had already passed the Commons without objection, and would doubtless pass through an elected second chamber with a government majority.

More often – as Labour intends the second chamber to be elected in the midterm of a government – the Lords would be dominated by the opposition. And it would use its power to frustrate everything the government tried to do. To think this would not happen is naive.

We do not have a written constitution that can limit the power of a second chamber, so the elected house is bound to use and extend its powers. We would quickly find government extremely difficult to conduct. The Lords may appear a minor issue but within a year or two of replacement, it really won’t be. The right complaint about Starmer’s plan is not that it is the only bold change he is proposing. It is that it may prove the last bold change anyone gets to make of anything.

Only about a third of the world’s democracies have wholly and directly elected second chambers exactly for this reason. And none without a codified constitution. The Lords is idiosyncratic, but so are many of the world’s upper houses.

If Starmer accompanies his proposal with a full written constitution, of course, he could limit the powers of an elected second chamber. But who would serve in it? I can see why replacing me with an elected peer might be an upgrade. But would it really be an improvement to remove all the crossbench peers, and lose the ability of the House to benefit from the input of a top scientist, or medic, or musician, gaining instead people who are junior to backbench MPs?

If an unelected House is unacceptable, it might be better just to have a single chamber of parliament and put up with unamended laws.

It’s a reasonable observation that I would argue all this because it preserves an institution I sit in. It is a reasonable observation, but it’s not an argument.

The Times