Politics and the peerage

You’ll never get politics out of the Lords, and nor should you. The problem isn’t including politics — it’s excluding voters

The House of Lords: not all that much more democratic than it looks. UK Parliament, CC BY 3.0.

Lords appointments have been something of a (slow-burning and highly secondary) theme over the past few months. A number of Boris Johnson’s appointments have raised eyebrows. Notably, the Lords will now include Claire Fox — a former supporter of the IRA’s terror campaign who remains unrepentant, and whose inclusion remains unexplained and suspect. A number of Jeremy Corbyn’s final nominations were rejected. And today, Keir Starmer’s choice of peers has also attracted controversy.

Using peerages as patronage is nothing new

The appointment of Claire Fox is unusually egregious. Consistent commitment to our democratic process seems a pretty minimal requirement for life membership of our Parliament. (Even a show of repentance would be something.) But there’s nothing new about prime ministers appointing legislators-for-life for unedifying reasons. 58% of Margaret Thatcher’s appointments to the Lords were Conservatives, even in a chamber still hereditary-dominated and Tory-skewed. Controversy periodically dogged Blair’s Lords appointments. The speed at which the Coalition expanded the House made experts tear their hair out.

None of this is surprising. The House of Lords ultimately plays second fiddle to the Commons. But it’s still a lawmaking body, and governments often make concessions to it. Lords appointments are a huge source of power — but peers don’t get anything like the same scrutiny as MPs. Voters tend, in the main, to forget or at least deprioritise the Lords. As a result, there’s every incentive to put your people in, even if the appointments do the House no credit, and little downside to doing so.

The Lords became more influential in the New Labour years. It continued to be more assertive under the Coalition. And since 2015, the Conservatives have had their first experience of single-party government with no particular advantage in the second chamber. Their tendency to menace it whenever it gets a bit uppity shows they don’t like it one little bit. But on the whole, the surprise isn’t that unedifying appointments get made: the surprise is that prime ministers show any restraint at all.

Nominations mean patronage, and mitigation is hard

We could do a bit to reduce the problem. We could agree a formula for sharing out Lords appointments, taking the partisan makeup of the House out of prime ministers’ hands. We could beef up vetting by the House of Lords Appointments Commission. The Wakeham Commission on Lords reform even envisaged the Commission appointing party-political, not just independent, members of the Lords (except for a few elected members). Labour rejected this at first: it came round in 2007, before moving (in theory) to an elected second chamber.

It should be a no-brainer that prime ministers shouldn’t be able to skew the makeup of the second chamber. And few would object to tougher vetting of peers, if we take it as read that we the people get no say in their appointment. The first would be a real step forward; the second might at least help address some of the most egregious appointments.

But how far can vetting go? What is our working definition of ‘improper’ beyond the most egregious cases? If we want it to tackle the wider issue of political patronage, then how? Is the Appointments Commission meant to assess if Johnson, or indeed Starmer, is giving too many peerages to his factional allies? If we exclude politicians and their advisers, how many members with no political history and capacity to serve can parties rustle up? And do we actually want that anyway? Post-Brexit Britain will need to get better at lobbying EU institutions now it’s given up its voice in them. Do we really want to ban former MEPs from the Lords?

Going further and letting the Appointments Commission choose party as well as Crossbench peers may or may not prove tenable. I very much doubt a less deferential age would take its bona fides on trust. The experience of the ‘people’s peers’ hardly inspires confidence in the public credibility of any such model. Britain’s parties have enough difficulty respecting the independence of the judiciary. I doubt they’ll defer to a quango telling them who will represent them in the Lords with no recourse.

A House of Experts: tricky in practice, dubious in principle

Of course, you might try and remove parties altogether. In Canada, Justin Trudeau’s Liberals are trying to do just that. Their aim is a non-partisan Senate, with an independent Board to advise (though not bind) prime ministers on appointments. The idea is to restore the Senate’s role as a chamber of ‘sober second thought’, with a less partisan and more independent-minded approach than the Commons.

Some accounts do suggest this has partly happened. Individual Independent Senators are often distinguished. But fairly or unfairly, their independence from the Liberals remains disputed. (Some Senators left the Independent Senators Group over this question.) The Government had to create a caucus of of three to handle its Bills. Ex-Liberal Senators formed their own Progressive Senators Group, which some Independents have joined. The Conservatives continue to oppose the principle. Whether it’ll bed down I don’t know. I think we can already say it won’t quell (admittedly ill-fated) calls for wider Senate reform.

In any case, I’d argue the whole concept is dubious in democratic principle. This is especially true if all members are non-partisan, denying voters any say over the makeup of the Lords. On what basis should a politically unaccountable body have such power over policymaking in the round? How should it decide how much weight to accord diplomacy, defence, development, law, economics, business, trade unions and welfare?

Weighing these things up is exactly what we have politics for. It’s not just that the Lords never will be a dispassionate chamber of experts: it actually shouldn’t be. Parliaments need politics, lawmaking isn’t an academic seminar — and frankly, the whole notion reeks of anti-politics to me. Independent appointments seem manageable for 20–25% of peers, whether or not you approve. It’s quite different if a quango decides which policy priorities we get to hear in half the legislature.

Patronage with or without a public say: take your pick

The House of Lords plays far too big a role in our legislative process to be removed from the political arena, even if such a thing were desirable. More radical Lords reformers are often charged with a lack of realism. But those who believe the Commons will up its game enough to remove the need for an active second chamber any time soon must be more utopian still.

In practice, that means there’s a fairly clear-cut choice. Parties will seek to get their people into both chambers of Parliament. The way they do that can involve the voters, or it can exclude them. If you opt for the latter, then yes, you may get some experts you wouldn’t get if they had to go on the campaign stump. You’ll also get MPs who’ve lost their seats, party leaders’ favoured sons and daughters and others who offend your sensibilities. And you will be able to do nothing about it.

I admit it: for me, no one should sit in Parliament unless the voters put them there, as a matter of principle. I want the second chamber to provide a stronger check on government and a balance for the smaller nations in our (imperilled) union state. So I was never attracted to some sub-Platonic chamber of experts anyway. But I also think it’s a pipe dream. If you reject letting the voters decide, then in the main, party leaders will decide for you.

This post was originally published on Medium.com on 16 August 2020.

Lords in limbo: apply the Salisbury Convention in spirit as well as letter, please

Lords reform has been fairly heavily trailed for some time now, and we’ve had a bit more confirmation that the White Paper is on the way in the past couple of days. I’ll be glad to see the Government make headway on this: despite the outcome of the AV referendum, Lords reform has been a longstanding commitment from politicians of all parties and the evidence has always been pretty clear that a majority of the public believe our second chamber should be (at least predominantly) elected.

Personally, I think this really should be a fairly cut-and-dried issue. Members of the House of Lords are not primarily independent experts, sources of warnings or nods to tradition. These are all understandable things to want, and we ought to think much harder about how we integrate expertise into our legislative process, but they are not the primary role of the people who vote in the second chamber. They are, first and foremost, legislators – and legislators whose record of changing Bills and therefore policy is significant and growing. If we want expertise, we should make sure we have it in the right committees and the right debates for the right issues. (Could some experts even sit on Select Committees, in the Commons and in a new second chamber, as non-voting, co-opted members?)

The people who actually do make our laws should be democratically accountable. In an ideal world, therefore, we should finish up with nothing less than a 100% elected second chamber. I’m relatively relaxed about the finer points of STV versus open lists (lists where you can choose a candidate within a party list rather than just opting for a party): so long as it’s a proportional system where voters don’t just have to tick a party box, I’ll settle for it.

With regard to the likely plans to come from the Government: I’m not ecstatic about the idea of 15-year terms and I have fairly serious reservations about single terms – I think it’s an important principle that legislators should have to at least consider the possibility that they might want to face the electorate again, and if we’re serious about democracy then we have to accept that that requires accountability. Electing by thirds (or halves, or quarters) is sensible, though: our new Senate should be a more continuous body than the House of Commons, and a combination of PR and staggered elections would help to make sure it fits the bill. In terms of dealing with the current members of the Lords, I think an arrangement along the lines of the Cranborne deal might make sense – which would mean that we’d have 200 left in 2015, 100 left in 2020 and none by 2025 (when the full complement of Senators would have been elected).

But I’m enough of a pragmatist to understand that, if you want Lords reform at all, you can’t let the best be the enemy of the good. The fact that people haven’t recognised that is exactly why Lords reform hasn’t happened, even with a Labour government who said they wanted it in charge for 13 years. So if Nick Clegg can even secure an 80% elected second chamber, even with twelve voting bishops (though the latter will cause me real pain …) and even with all the other peers staying until 2025, then I’ll see that as a major step forwards and a real achievement. Of course, that depends on his Coalition partners voting it through. Whether the Conservatives will choose to live up to the spirit, as well as the letter, of the Coalition Agreement remains to be seen: if they choose not to, no doubt Liberal Democrats will feel even more betrayed than many of them do already.

The other question is how fiercely the House of Lords will resist being reformed. Everyone seems to agree that they will fight tooth and nail against reform. I do appreciate that, when people find themselves on the red benches, they have an uncanny knack of seeing the wisdom of allowing the nation to carry on benefiting from their wisdom. The Cross Benches’ reluctance is understandable, given that there would undoubtedly be pretty few (if any) of them in a 100% elected second chamber and that their role would inevitably be questioned in an 80% elected one. In any case, the difficulties the Lords could cause for reform, and for large areas of Government business, are very substantial indeed.

It’ll eventually be a question of whether the Coalition has the political will to push change through, whether peers like it or not. But one thing I really don’t understand is: on what basis do the Lords think they have any right to derail this legislation at all?  All three main party manifestos called for a wholly or mainly elected second chamber. All parties have been reasonably clear, with some wobbling from the Conservatives in the past, that the second chamber would need to be elected by some sort of proportional system. In 2005, both Conservatives and Liberal Democrats also called for a wholly or majority elected second chamber too.

It seems to me that, if a pledge won the support of both parties in the Coalition when they went to the country (as well as the Opposition and a number of the smaller parties), we have a pretty clear case of the Salisbury Convention in action. I can see why the Lords might query some Coalition compromises in that regard: no one got to vote for the Coalition Agreement. But on this one, I just can’t see where the ambiguity lies. It was proposed: it was in the manifestos: it’s now in the process of being turned into a White Paper, and hopefully a Bill. If there’s any defence, it’s surely of the most technical kind. Where exactly did the Salisbury Convention include a bit saying the Lords didn’t have to apply it to their own seats?