Democratic Legitimacy and the House of Lords

I’ve been having a Twitter debate with several people. The weird thing that keeps cropping up is that most people believe the House of Lords should be elected because they should be democratically accountable, or must be voted for to be classed as ‘legitimate’. When I ask these people “Why?” I don’t get a definitive answer, just some statement that Democratic principles are important. No facts, nothing about them doing their job better. This troubles me.

We don’t vote for Police Chiefs (yet), Judges, Civil Servants, Senior armed forces officers, The Queen, special advisers to Government, or a variety of other things. No one is claiming Judges are not legitimate are they? Some say because the Lords have a direct affect on legislation they require legitimacy. Why? Civil Servants come up with the wording of legislation and we don’t vote for them. Legitimacy doesn’t matter for them because MPs introduce and vote for legislation. The thing is, MPs must also vote for and agree legislative amendments from the House of Lords too. So where is the difference?

Currently the only power the Lords have is to delay legislation for a session (minimum 13 months). Even then the Commons can have the final say by forcing legislation through using the Parliament Acts. If a Lord introduces a Bill in the House of Lords it must go through the same readings and committees as legislation introduced in the Commons, and must still be voted on by both Houses. The House of Lords do not have the ability to pass or alter Acts without the consent of the Commons.

So what do we mean by legitimacy? Why are Judges legitimate? They have formal qualifications, sure, but no one votes for them. They are measured on their record and experience. Why should the same not be true of the House of Lords? Why not fill the Lords with dedicated and passionate individuals who are experts in their fields and can provide a useful function – reviewing and bettering legislation. If they are selected because of their expertise and experience, they show up regularly and contribute to the legislative process, then why are they any less legitimate than Judges? Experienced, passionate Lords could be legitimized by their track record professionally, and then by their actions in the Lords, not only via the ballot box.

I am much more of a pragmatist when it comes to anything. Rather than ask “What should a solution look like?” I always instead ask “What are we trying to solve?”. After all, if you don’t know what shape a solution should be, you can’t decide on how best to build that shape, can you? We must first decide what we want the House of Lords to accomplish, and then provide it with the structure, members and power required to do those jobs. This is not a short or simple task that can be written on the back of Nick Clegg’s beer mats.

A range of tasks have been suggested, some of these I detail below:-

  • Review Legislation – currently regarded as the most effective legislative review body in the world. This is no accident.
  • Provide expert advice – through committees and debates, to inform policy and investigations, not just to modify Bills
  • Checks and Balances – some people have mentioned they want a check on the power of a majority government in the Commons, which currently can force through most legislation and curtail democratic debate without too much trouble
  • Provide minority input – usually around geography in the UK. MPs will soon, and suggestions of PR for the Lords would also enforce, a massive bias to the South East of England in Parliament. The House of Lords could provide lower population geographies with an input, much like Senators in the US Senate do, to counter balance this bias.
  • Recognise notable citizens – We currently ennoble citizens by giving them titles, some of which provide the right to sit in the House of Lords. These people could have been successful in a career or in helping their communities, or providing long standing and valuable public service. This potentially gives a broad range of people input in to the legislative process. This is only seen as a bad thing when it is given via cronyism for patronage rather than deeds. Perhaps the appointments commission could be placed in sole charge of this, and a Joint Committee of the Commons and Lords could confirm them in hearings?

We also have a range of issues with the current system that need resolving:-

  • People sitting in the Lords that do not turn up (Fix via rule changes)
  • People sitting who are convicts (Fix via rule changes)
  • Large number of Lords (Could be fixed by removing governments’ ability to appoint as many as they want, term limits, and total quota)
  • Hereditary peers (Just remove them. Simples.)
  • Bishops sitting are anachronistic, and adding other religions would always exclude Atheists and Humanists, thus perpetuating religious privilege for no good reason (Just abolish the Lords Spiritual instead)
  • Seen as a retirement option for failed politicians (again, prevent governments from appointing Lords directly, or limit them to a very small amount with the same term limit as the gov’ in the Commons)

How many of the above problems would be fixed, or tasks accomplished, purely by having an Elected House of Lords? Answer: NONE. In fact it would likely make some of them worse – E.g. SE England bias if elections are done via PR, because that’s where most people live. A set of simple rule changes and different selection criteria could fix them all. This would give the Lords legitimacy in the eyes of the public and make a second chamber to be proud of, free from sleaze, politicking, and vested interests. It would also ensure we keep a simple and well understood election night too.

The only areas that would require detailed thought are:-

  1. What mix of people to have and where would you find them? One rep per region? Profession?
  2. How can they provide an effective check against a powerful executive? Perhaps repeal the Parliament Acts, or allow them veto over certain types of legislation? (E.g. Constitutional) Or allow them to send Legislation for approval in a Referendum to the electorate directly? (This would effectively be like the Parliament Act which says legislation can only be passed under the Act after one month of a new session, minimum 13 months between passages – we could ask for approval on election night. This would actually streamline the process!)

If we fix the powers and make-up of the House of Lords we will have a much more effective House of Lords that is more capable to carry out the tasks required of it than any elected chamber could ever accomplish.



Problems with an elected second chamber

Potential problems highlighted during the debate on House of Lords Reform on Mon 9th Jul 2012 in the House of Commons:-

  • Regional elections likely to allow minority, racist parties in to influence legislation out of all proportion to the size of their support base
  • Members elected for 15 year, unrenewable term will be wholly unaccountable to the electorate
  • Likely to be more expensive
  • Loss of expertise very likely – one MP mentioned that being from a Navy family she felt safe that she knew what she was talking about when on a defence committee – until she realised there were 17 people from the Lords who were ex sea lords and experts in the Military (MP for Gosport)
  • In the Lords you have to win the argument, whereas in the Commons you only need to win the vote
  • Most referendums on elected mayors rejected – why is there no referendum on Lords Reform?
  • An elected Lords would risk the primacy of the House of Commons

… good debate tonight on Lords Reform. More engaged debate on Twitter than there were jaded opinions on politics. Perhaps both our Parliament and our punlic’s opinion of it are finally improving?

Politicians and Churchill…

There is a long cliched history of politicians quoting Churchill for their own ends. Nick Clegg came unstuck today when he quoted Churchill. He forgot that his Grandson is an MP – Sir Nicholas Soames (Con.).

Adam’s Constitutional Reform Bill 2012

Well, if Nick Clegg can have a go, why not me? Here is what I think we need. If you have any suggestions on how to improve it, please add a comment!

Draft Constitutional Reform Bill

Presented to Parliament by the Secretary of State of Common Sense by Command of Nobody-in-Particular.

July 2012



to Provide Constitutional Reform to ensure the rights, freedoms and primacy of the Peoples of the United Kingdom over fundamental questions to the Constitution and Laws of the United Kingdom.

Part 1

Constitutional Arrangements

Chapter 1


1 A Bill is said to be Constitutional [A Constitutional Bill] in nature if it

(1) alters the voting method in any election in the united kingdom or for any elected post whose geographic coverage is any part of the UK (including european elections)

(2) alters the registration criteria for those standing for election

(3) alters the powers of any elected body in the united kingdom

(4) alters the requirements for passage of a bill with regards to authorisation by the Commons, Lords, Sovereign or People via Referendum

(5) alters the way the winner of an election is determined including the number of votes required to be declared the winner

(6) alters election boundaries

(7) alters number of representatives within an elected body

(8) alters any election law

(9) alters the relationship between the Sovereign and the State

2 A bill is said to Alter Rights [A Rights Bill] if it

(1) modifies the Equality Act 2000 or the Disability Discrimination Act 2002

(2) modifies the Human Rights Act 2000

(3) modifies the implementation of the UN Charter of Human Rights within UK law

(4) aims to amend the functions of the European Court of Human Rights (ECHR)

Chapter 2

Make up of the House of Lords

3 Quantity of Lords in the House of Lords [350 total members approx according to below rules]

(1) The three political parties with the most seats in the House of Commons at the last general election may nominate 15 Lords each to sit in the house for the duration of the same Parliament in order to conduct the business of the Government and Opposition in the House of Lords

(2) Other political parties with more than three members in the House of Commons may nominate three Lords to be members for the duration of a Parliament [currently 5 years]

(3) Remaining political parties with MPs may nominate a single Lord to be members for the duration of a Parliament

(4) Each Professional Body may nominate 1 individual from their ranks to represent them in the House of Lords without power of revocation [May be a lot here. There are 108 trades in the Livery Company, 106 chartered and 60 unchartered organisations that are professional associations]

(5) Each Overseas Territory may elect a representative, if they so choose, to fit in the House for the duration of a Parliament [currently 5 years] [should also word to include Isles of Man, Jersey, Guernsey, Alderney

(6) At the start of a new Parliament the House of Commons may select a maximum of 5 new Lords to sit for a period of no more than 10 years [Lords Political! Stops Governments appointing enough Lords to take control of the House]

4 Membership requirements

(1) A ‘Professional Member’ is defined as a person who is selected and is also a member of their professional body

(2) The member must have been part of their professional body for not less than 5 years

(3) Professional bodies include Chartered Institute of IT, Law Society, Royal Aeronautical Society, Royal Society, Royal Geographic Society, Association of Plumbing and Heating Contractors, National Association of Head Teachers, National Association of Chief Police Officers, UK Intelligence [Security Service, GCHQ, SIS], … [you get the idea – pretty much all of society from traditional ‘Professional’ organisations to ‘The Professions’ including plumbing, car mechanics, the lot]

5 Terms of Appointment

(1) Each member will sit for a period of a Parliament [currently 5 years]

(2) Professional body members will be selected in a fraction of their numbers by year [1/5 each year, every 5 years] [aims to maintain knowledge of House procedures in collective memory]

(3) Members may choose to resign, in which case their replacements will be elected or appointed as appropriate with terms ending on the same date as those who have just resigned

6 Selection

(1) Professional Bodies may choose to select their representative by election, and if so doing must abide by the requirements of the Electoral Commission

(2) The House of Lords maintains the right to choose to consent to the appointment of each new member, or to hold a confirmation committee interview and report and vote for a new member

7 Political Parties

(1) A political party holds the same definition as that for the House of Commons

(2) Members of the House of Lords may announce on appointment their chosen affiliation, or none, to a political party

(3) All members are required to announce any existing membership of a political party on appointment or on membership changing [for clarity with the public]

8 Appointment to the House of Lords

(1) All Lords Political are subject to confirmation hearings if so voted for by the existing House of Lords

9 Confirmation Hearings

(1) To be conducted through interview by a committee of 5 including one committee chair chosen by the House of Lords in a vote [potentially different chair per confirmation]

(2) Aim of a confirmation hearing is to insure that a new member meets the eligibility requirements of the House of Lords, is expert in their field, and has sufficient time to contribute to the House’s business

(3) Confirmation hearings should not concentrate on assessing political leanings or personal beliefs

Chapter 3

Powers of the House of Lords

10 Veto over constitutional and rights bills

(1) The House of Lords will have a right to Veto any Constitutional or Rights Bill

(2) A Veto must consist of one or more accepted amendments, with specific points, and not general in nature

(3) A Constitutional or Rights Veto is not subject to the Parliament Act 1911 or 1949

(4) Should a Bill be returned to the House of Lords for a second time in the same form then the Lords may elect to Veto and return to the Commons, or send to a Joint Committee stage before being confirmed [in the same 2nd sitting] for consideration by the House of Lords

(5) Should a Bill be returned to the House of Lords for a third time in the same form then a further Veto by the house will automatically require a Referendum by the Peoples of the United Kingdom in the next available national poll [so as not to have effectively the cost of a general election every 3 months]

11 Right to send to a joint committee with reservations

(1) A Joint Committee of the Commons and Lords may meet to attempt to prevent deadlock over the enacting of legislation

(2) A Bill must be sent to a committee with specific reservations and amendments to be dealt with in committee

12 Rules governing referendums of the people

(1) Referendums can only happen on the date or local or national elections [keeps costs and hassle down]

(2) The Question put must be of the form “Do you agree with the passing of the [Insert name] Bill [insert year]?” with two answers “Yes” and “No”

(3) The question will be provided translated in to the applicable locally used, recognised national languages [Welsh, Cornish, Irish, Scots Gaelic]

13 Money bills

(1) A Money Bill is not subject to Veto or sending to a Public Referendum

(2) The Definition of a Money Bill is restricted in the same manner as that within the Parliament Act 1911

14 Prevention of Bias

(1) No undertaking, offer, benefit or promise may be asked for, offered, hinted at or received in order to influence legislation

(2) All meetings of the Lords and Joint Committees are to be noted and made part of Hansard [The Parliamentary record – all bills and debates are posted online these days]

Chapter 4

Amendments to existing legislation

Repealing sections of the parliament act 1911

Repealing sections of the parliament act 1949

Altering sections of the parliament act 1911

Altering sections of the parliament act 1949

Elections act? [representation of the people act]

Chapter 5

Improving evidence giving to committees

Restrictions on the giving of evidence and Parliamentary Privilige

(1) When giving evidence to a committee of the houses of parliament all witnesses are protected by Parliamentary Privilige and no law officer can question this in relation to gagging orders agreed to by any individual or body.

Why we need a strong, independent House of Lords

If you ask most people what they think the House of Lords is for they will likely say something like a retirement fund for ex-politicians, or a place for the upper classes to lord themselves over the rest of us. They may say that it is undemocratic, has too much power, and prevents the House of Commons from successfully carrying out its duties.

This is very far from the truth.

In this excellent piece of constitutional research the author, Le Patron, points out how very few Acts of Parliament the House of Lords has tried to block. Indeed all of them are constitutional in nature, where the Lords clearly felt there was not a political mandate from the people of the UK. Typically these acts had substantial portions that were not part of parties’ election manifestos, and thus the people had not had a vote on. This is particularly ironic given the current Liberal Democrat Leader is trying to force an elected chamber through without a constitutional referendum. Just because each party’s manifesto said they wanted to reform the House of Lords does not give them carte blanche to alter it when the details were not in their manifestos before the election.

But these are arguments for another day.

Why do we need a House of Lords? The Lords has few powers to prevent the House of Commons from enacting legislation. They can amend legislation, but each amendment can either be accepted or rejected by the House of Commons before a bill is sent back after amendment to the House of Lords. There are no long lived ping pongs of legislation between the two houses. The House of Lords merely reviews and suggests alterations to legislation. They are uniquely suited to this job because they have a strong make up of people with expertise in particular fields. These people can see potential pit falls, gaps, loopholes and problems in legislation before it becomes law. Without experts reviewing legislation in the House of Lords we would have weaker laws and ineffective policy.

Why are we talking about Lords reform? The House of Commons has a habit of shouting loudly at the House of Lords that they cannot block or drastically alter legislation because they do not agree with it. This bluster covers up real misgivings amongst those in the know about the detail in legislation. The devil, after all, is in the detail. If the House of Commons forces legislation through with a three line whip, and the House of Lords just rubber stamps legislation, then who will point out the faults? No one. We would be left with a system whereby patronage, party majorities, and lobbyists decide not just the political direction of legislation, but also the quality – or lack thereof – of that legislation. The bigger the majority, the less rigorous the laws. Minority opinions would be silenced, pushed out. Only professional politicians would be left. The ‘Westminster bubble’ would decide the direction of the whole country with even less input from the regions as currently happens. With an elected Lords along party lines, from Penzance to Penrith, Birmingham to Belfast, Glasgow to Grantham, our voices would be simply ignored.

What are our British checks and balances? In the UK we do not have a formal constitution written in stone. Or indeed anything else. We are a flexible nation that modernises over time to meet emerging challenges. Our future is not dictated by our past. We all act according to a common code, or set of values. We do not need these listed, or boiled down, because they are inherent to our being. Indeed listing only a subset may constrain what our descendants could do to meet emerging challenges. Even in Parliament these conventions exist. The Queen does not, by convention, send legislation back to the Commons for them to reconsider. The House of Lords, by convention, does not reject legislation that is detailed within a governments’ manifesto.

If we allow political parties to dictate 80% of those selected for election to the House of Lords, who will stop the Commons from introducing legislation that is way beyond what they were elected to enact? The Queen does not by convention for quite understandable reasons. The Supreme Court cannot either because if legislation is enacted then they are powerless to strike it down due to the primacy of Parliament. So who will stop it? Without the House of Lords, no-one. We need a strong, independent House of Lords with a strong voice, and clear mission, to protect the UK from legislation with no public support.

How have the Lords really helped improve legislation? The House of Lords has significantly amended or rejected the following bills from the Commons:-

  • Rejected the Mode of Trial (No 2) Bill 2000 because it attempted to restrict the use of Trial by Jury
  • Rejected the War Crimes Act 1991 which allowed those suspected of war crimes in Germany in WWII to be tried in Britain for those war crimes even if they were not sought for prosecution in Germany itself, and if those people had subsequently become British Citizens. This was forced through by the Conservative government via the use of the Parliament Act 1911. Thus also dispelling the myth that the Lords will only block Labour or Liberal legislation.
  • … others anyone? [Could do with more stats here]

The Lords have also improved legislation recently. Here are some highlights:-

  • Amendments to the Protection of Freedom Act to: 1: Prevent non public bodies from using covert third party human sources to collect intelligence for minor offences [Have private investigators rifle through your trash and talk to your neighbours], 2,6,7,8,9: Created a new criminal offence of stalking [didn’t exist!], 4,5: removes loophole allowing people with child protection offences to have a CRB done but it NOT show up their convictions if their new job does not permit unsupervised access to children
  • Amendments to the Social Care Act 2012: 1: Allow charities to reclaim VAT for the same items as the NHS when providing healthcare services, 7: increase duties on NHS regulators to ensure equality of provision, 14: Add a board to oversee the civil servant in charge of Health England which would have 4500 staff but would otherwise had been accountable to no one unless Parliament investigated, 17: Add training and registration requirements to health care workers
  • Amendments to the Welfare Reform Act 2012: 1: Make the difference between the normal and higher support rate for disabled children less (would have been £1400 per year)

The House of Lords has the following powers:-

  • The House of Lords maintains a veto that cannot be overridden to any legislation that attempts to extend the life of the House of Commons to over 5 years
  • The House of Lords maintains a veto over subordinate legislation (that is legislation introduced by a minister because a previously passed Act may say ‘The Home Secretary may introduce an order to active section 4(1) of this Act’ for example.
  • Amongst others…

The House of Lords should be able to restrict any increases in executive power of the House of Commons, or indeed just the Government in Majority in that house. The House of Lords can be bypassed in the following way:-

  • Using the Parliament Act 1911 to ‘skip’ House of Lords approval for a Money Bill (E.g. ‘Her Majesty’s Government hereby gives £1bn to the Fascist Party of Great Britain’) – if it has a Speaker’s note attached, then it is a Money Bill, and cannot be vetoed by the Lords
  • Using the Parliament Act 1911 to force through after one session (not less than 13 months) any legislation that the House of Lords first rejects, and which does not change between its submissions to the House of Lords (E.g. ‘The only valid political party is the Communist Party of Great Britain’ or perhaps more worryingly ‘The Most Disagreeable Party is hereby banned from standing for elections in the UK’)

We need a House of Lords that:-

  • Is guaranteed a right to amend legislation for reconsideration by the Commons
  • Where the Commons cannot force through legislation that the Lords does not believe has a majority of public support
  • Can refer matters to a referendum of the people of the UK where the Commons is trying to force through particular legislation
  • Forces the commons to think more about the implications of whipping and rushing through legislation that they do not have a political mandate for
  • Guarantees an elected party in majority in the House of Commons cannot infringe upon the rights of the people of the United Kingdom or alter its constitution without their explicit consent

Do we actually want MORE politicians?

Seriously? We can barely control the bunch we have. Now I know the House of Lords needs reform, but making them elected solves what exactly? They don’t introduce legislation, all legislation starts in the House of Commons. So its not like they have any real power. All they can do is delay legislation for a maximum of 1 parliament. So 5 years in the current framework.

here are various criticisms of the House of Lords including:-

  1. Very few members regularly take their seats for debates
  2. It is comprised mostly of retired politicians anyway
  3. They get paid for just turning up (250 quid or more a day from memory)
  4. Hereditary piers (inherited by birth) are an anachronism and divisive in a classless society
  5. At over 1000 in strength, there are far too many members
  6. Church of England Bishops (26 Lords Spiritual) give a heavy bias towards Christian, specifically C o E, minority opinions

All of the above is true. None of the above is solved by yet another elected chamber.

Do we seriously want a poor mans version of the House of Commons? What exactly do we *need* the Lords to do? Effectively we need them to scrutinise legislation, and if they think the Commons are way off the mark, then need to send it back so the Commons can ‘think again’. Exactly which part of this requires elected individuals?

As we’ve seen from the commons the current leadership is made of private school boys from a single background all of which wanted to be professional politicians. They have very little specialist knowledge of the real world. Surely we want experts to review legislation, not panderers keen to keep their own party’s leadership happy and wave through any old crap?

Can you imagine a banking reform bill, or constitutional reform bill decided by people with no experience of banking or life outside the M25? It’d be disastrous.

What we need is a house of experts. Some, yes, may be ex-commons members, but they should be chosen at the end of each Parliament by the Commons to sit for the next 5 years. That could be say 20 members in a reduced house of 400. We should then have the professional bodies select (or choose to elect internally) members to provide expert opinion. These could be business leaders, scientists, leading educators, doctors, pilots, hell even the occasional outdoor instructor and plumber. This would give a much more expert body of people which are more aligned to the social and economic make up of the UK then any elected chamber ever could be.

I think this is pretty easy to do. A constantly changing House of Lords rather than one that is reborn in total every 5 years would also lead to much more consistency in expertise of reviewing legislation.

So can we all please tell our MPs that we’re happy having one MP, thank you very much, and just want people who actually know what they’re doing to check up on and fix their legislation rather than have more elected politicians forced on us, without so much as a constitutional referendum.