The possible courses of action
So the House of Lords has opted for confrontation with the government by asserting its right toÂ intervene on financial matters that are not covered by the letter of the Parliament Act 1949. InÂ turn, the government, like King Lear, has threatened that “I will do such things — what they areÂ yet I know not — but they shall be the terrors of the earth”. We’ll see.
It has long been recognised by pretty much everyone at every point on the political spectrumÂ that the House of Lords is in need of reform. It has no democratic legitimacy and with theÂ modern supremacy of life peers, following the Life Peerages Act 1958, it is now dominated byÂ appointees. The rate of appointment has quickened in recent years. No research has beenÂ undertaken that I am aware of to determine whether this reflects an improvement in the qualityÂ of potential candidates or whether grade inflation has taken hold.
Since the turn of the century, three serious attempts have been made at reforming the House ofÂ Lords. In 2003, every single option put to the House of Commons was rejected. In 2007, theÂ House of Commons voted in favour of either a House of Lords that was wholly-elected or whereÂ 80% of its members were elected. However, the (almost wholly-appointed) House of LordsÂ voted in favour only of a wholly-appointed House of Lords. This impasse was not resolved.
In 2010, the coalition agreement went into some detail on this question:
“We will establish a committee to bring forward proposals for a wholly orÂ mainly elected upper chamber on the basis of proportional representation.
The committee will come forward with a draft motion by December 2010. It isÂ likely that this will advocate single long terms of office. It is also likely thatÂ there will be a grandfathering system for current Peers. In the interim, LordsÂ appointments will be made with the objective of creating a second chamberÂ that is reflective of the share of the vote secured by the political parties in theÂ last general election.”
The proposals were duly put forward, but then Conservative backbenchers scuppered them,Â being hostile to the idea of single 15 year fixed terms for elected peers. The same problemÂ keeps recurring: despite general agreement that the current state of affairs is unsatisfactory,Â every attempt at reform of the House of Lords founders on a complete lack of agreement onÂ what should replace it.
There is an underlying question that is rarely addressed: what should the House of Lords beÂ for? At present, it operates as a revising chamber. Under the Parliament Act 1911, the HouseÂ of Lords can slow down legislation introduced by the House of Commons but it cannot stop itÂ completely if the Commons is determined.
To date the two houses have rarely clashed. The House of Lords has only been overruled onÂ seven occasions and it has given way on a further three occasions when the House ofÂ Commons threatened to use its final powers. The Parliament Act has only been invoked onceÂ under a Conservative Government (for the War Crimes Act 1991, if you’re interested).
Progressive governments have had to contend with truculent lords more often up till now.Â This looks likely to change for two reasons. First, the numbers have changed. Historically theÂ Conservatives have controlled the House of Lords. Following 13 years of Labour government toÂ 2010 and the stripping of the rights of the hereditary peers, this is no longer the case. UnderÂ the coalition it mattered less because the Lib Dem peers could be added to the ConservativeÂ tally. With the Lib Dem peers transferring on 8 May 2015 from the government to the oppositionÂ ranks, the Conservatives’ minority status in the House of Lords becomes much more important.
Secondly, both Labour and the Lib Dems look likely to be much more assertive in the House ofÂ Lords in this Parliament than previously. The Lib Dems have already signalled that they areÂ breaking with the Salisbury Convention, under which peers do not seek to block legislation thatÂ is mentioned in the government manifesto. Labour under Jeremy Corbyn also look likely to beÂ less respectful of conventions in the House of Lords (though Labour lords reaffirmed theirÂ observance of it as recently as June). The vote on tax credits confirms that neither party in theÂ Lords is the least bit troubled by the spirit of convention and obligation â€“ the previous statutoryÂ instruments voted down by the Lords concerned UN sanctions on Rhodesia as it then was,Â arrangements for the Mayoral elections in London (two different statutory instruments),Â supercasinos and changes to legal aid eligibility. The changes to tax credits form an integralÂ part of the government’s budgetary plans and the decision to vote them down represents astepchange in the Lords’ willingness to intervene in matters central to governmentÂ administration.
This probably reflects their Commons colleagues’ inability to mount effective oppositions.Â Nature abhors a vacuum and if the Labour party and the Lib Dems in the Commons are going toÂ be ineffectual, others will feel the urge to step into the gap.
Let us assume for now that the Conservatives decide to take action as opposed to bluster: theyÂ need to determine what they expect from the House of Lords. There is as yet no sign at all ofÂ any serious thinking by the government as to how it should be reformed.Â MPs recognise uneasily that an increase in democracy in the upper house would lead to anÂ increase in its legitimacy. They do not want to see a rival source of power develop (thisÂ approach is no doubt in the interests of MPs though it is not obviously in the interests of theÂ country as a whole). So how can the government preserve the general balance of powerÂ between the two Houses of Parliament while clipping the wings of unelected peers?
The straightforward approach, as threatened by anonymous government sources, would be toÂ ennoble vast numbers of Conservative time-servers to rebalance the House of LordsÂ numerically rather than structurally. This would simultaneously look like gerrymandering andÂ venal (and would place a strain on the vetting procedures that would probably result inÂ timebombs of scandal detonating every few months for years to come). It would also riskÂ drawing the monarchy into politics, so it looks like a complete non-starter to me.
If the upper house is to be elected but to have lesser legitimacy, the type of approach ofÂ providing for limited electoral accountability proposed by the Lib Dems in the last ParliamentÂ and kyboshed by Conservative backbenchers would work theoretically but now not politically.Â Given that full and regular elections to the upper house would fundamentally upend the balanceÂ between the two houses, I doubt whether the government could get them through ParliamentÂ even if it tried. Getting rid of the House of Lords completely would be still more controversialÂ and I can’t see it being floated, still less enacted.
So what else might the government do? It might seek to enshrine in legislation the conventionsÂ that have operated to date but which now seem to be breaking down, adding new ones in for itsÂ own convenience (further restrictions on the Lords’ ability to block statutory instruments mayÂ suddenly look tempting). The government seems to be thinking along these lines if pressÂ reports since the vote are to be believed.
This form of limitation would be resisted strongly by the House of Lords and would probablyÂ need the Parliament Act procedures to be invoked. This type of constitutional change to theÂ role of the House of Lords has a precedent. The Parliament Act 1949 was passed in just thisÂ manner. It would be an amusing inversion of the Salisbury Convention, since the ConservativeÂ manifesto stated explicitly that reform of the House of Lords was not a priority in this Parliament.
But it would satisfy the need for “something” to be done and it is a “something” that theÂ government would have good prospects of securing.Â The government’s rage with the House of Lords is no doubt very real. It no doubt is seriouslyÂ considering what revenge it can take on the vermin in ermine. But it isn’t the first government toÂ look at this problem and it may well not be the last to conclude that it is all just too difficult. The Â House of Lords’ days have looked numbered ever since the Parliament Act 1911. That numberÂ may still, however, be in the thousands.