Who doesn’t love to hate the unelected, undemocratic House of Lords? However, there is also a wide consensus that in principle, a second chamber can perform useful functions. This means that an overhaul of the Lords, rather than outright abolition, is regularly discussed and various reforms have been implemented, notably in 1958 when the life peerage system was introduced, in 1999 when most hereditary peers were removed and in 2009 when the law lords were replaced by the supreme court. Then the momentum stalled. We still have a bloated chamber that is unaccountable to voters.
Two chambers better than one?
Bicameralism is a feature of about 40% of parliamentary democracies. A second chamber is intended to complement the first chamber, providing checks and balances by scrutinising laws and bringing a different viewpoint through a different selection process for its members.
Where second chambers are elected, this might be through a different electoral system from the first chamber, to avoid putting them in direct competition, but in that case the second chamber still ultimately derives its legitimacy from the people.
Once a Lord, always a Lord
That’s where the rub is with the Lords: not only does it retain a small hereditary component but the appointment system which accounts for most of the rest of its membership seems to have only a tenuous link to democratic legitimacy. The appointment of life peers is largely in the gift of the incumbent or departing prime minister but the absence of popular scrutiny, beyond the advice given by the independent House of Lords Appointments Commission (HOLAC), has led to some egregious choices. Michelle Mone, already criticised when she was made a life peer by David Cameron in 2015, allegedly profiteered from supplying (not fit for purpose) PPE and then lied about it. Charlotte Owen was appointed a life peer as part of Boris Johnson’s resignation honours list even though at 30, she had little discernible expertise or experience to bring to a forum that claims to offer both.
In addition, the Tories, Labour and the LibDems have all been investigated for suspected ‘cash for honours’ appointments. In 2020, Boris Johnson became the first prime minister to overrule the negative advice of HOLAC and elevate Peter Cruddas, a Conservative Party donor, to the Lords. Controversy also surrounded the appointment of Evgeny Lebedev, another decision by Johnson pointing to close ties between prominent Russians and the British establishment.
Is the grass greener abroad?
Once those scandals have stopped making headlines, however, public opinion actually settles to a surprisingly nuanced – some might say undecided – view about both the make-up and the functions of the second chamber. In 2022, in a poll run by the Constitution Unit at University College London, 29% of those surveyed agreed that the chamber “should include elected members to ensure that it is democratically accountable to the people”; 28% said yes to “it should include appointed members to ensure that it contains experts and people independent of political parties” while a further 26% agreed with both statements equally.
Do other countries do it better? There might be lessons to be learnt from how comparable systems select the members of their second chamber, and how effective their contribution to law-making is.
The French Sénat, an engine for decentralisation?
Members of the French second chamber, the Sénat, are indirectly elected by an Electoral College comprising 150,000 voters, essentially local and regional councillors plus MPs. The Sénat was once dubbed l’Assemblée du seigle et de la châtaigne, ‘rye and chestnut chamber’, in reference to its rural bias. While the selection system has been reformed several times recently, the chamber is still criticised for being unrepresentative of French society. At the moment, 53% of voting delegates come from small towns or villages, which represent only 33% of the population. To try and counteract this bias, councils in larger cities are allowed to name extra delegates. These extra voters, however, do not need a popular mandate and are likely to be unelected party staffers, political advisers, or even friends and relatives, denting somewhat the democratic credentials of the Electoral College. In addition, in 2020, the average senator was likely to be a white man aged 60 from a privileged background. So, all in all, these distortions have entrenched conservatism in the Sénat, something frequently highlighted by critics on the left, who point out that apart from the period between 2011 and 2014, the second chamber in France has been dominated by the centre and the right since 1958.
From that point of view, the Sénat attracts criticism not unlike that levelled at the Lords, noted for under-representation of ethnic minorities and women compared with the Commons, and relative over-representation of people from South East England and the over 50s.
On the other hand, the French state, notorious for being highly centralised, has since the 1980s been moving towards delegating more powers to local and regional levels. The Sénat is now specifically tasked with representing French regions, including overseas territories, a responsibility enshrined in the constitution since 2003. Bills that mostly concern regional administration and local access to tax revenue, for example, have to be first debated in the Sénat before being presented to the first chamber, the national assembly.
Size matters
As for effectiveness, some argue that when it comes to legislative assemblies, size matters. Smaller size, that is. The Sénat has had its membership capped at 348 by a change to the French constitution in 2008. By contrast, the Lords, with almost 800 members and no capping, is the largest legislative chamber in the world apart from the National People’s Congress of China, and larger by far than second chambers in similar countries. More members means not just higher costs but unwieldy proceedings, especially as the hall at Westminster only has about 400 seats.
The German Bundesrat, power to the few
The Bundesrat represents the 16 states, or Länder, that make up the Federal Republic of Germany and acts as the second chamber, forming, together with the Bundestag, the German legislature. This structure isn’t unlike that of the American Congress, where the Senate represents the 50 states, which elect two senators each, irrespective of population size. Both are examples of second chambers that explicitly reflect the country’s territorial structure, a direction the French Sénat has been taking too.
There are no elections to the Bundesrat. It is a trim body whose 69 members are nominated by their respective state government and reflect the political composition of the ruling majority or coalition in each state legislature. Seats are allocated in such a way that the Bundesrat doesn’t have the rural and conservative bias of other similar assemblies.
Although the Bundesrat is subordinate to the Bundestag, it still wields a lot of power. The majority of politically important laws require explicit Bundesrat consent. If there’s a risk of there being no majority in favour of a bill in the Bundesrat, the federal government will negotiate prior approval, or even shelve the laws that risk being vetoed.
Some observers claim that disagreement between the two chambers leads to an increase in backroom politics, horsetrading even, where small groups of high-tier leaders make all the important decisions and the Bundestag representatives have a choice only between agreeing with them or not getting anything done at all. This level of power stands in contrast to the Lords, which can influence the shaping and refining of a bill by tabling amendments but cannot ultimately stop it.
Babies and bathwater
So, other systems have their flaws and biases too, either in the way the members of the second chamber are selected or in the influence they have on the legislative process. Criticisms of the second chamber are not unique to the UK and demands for reform are a constant in many bicameral systems. In the UK, however, there’s no real sense of urgency, the justification being that the Lords is ‘just’ a debating and revising chamber.
Professor Meg Russell, director of the Constitution Unit at University College London, published a report in March 2023, “House of Lords reform: navigating the obstacles”. She argues that, for all its faults, the Lords “performs important scrutiny roles, often focusing on the detail of policy, and helping to hold the government to account”. She concluded her report by analysing the proposals of the Commission on the UK’s Future, chaired by Gordon Brown, which recommended creating an elected “Assembly of the Nations and Regions”, rooting the second chamber in the UK’s territorial structure, not unlike the US Senate, the Bundesrat and the French Sénat. This wouldn’t be straightforward, even with Labour in power. Meg Russell’s view is that:
“Lords reform is difficult, and historically large-scale ambitious proposals for reform have often failed. Meanwhile, even in the Lords itself there is widespread agreement that […] smaller changes are urgently needed, and some can be achieved by a Prime Minister without legislation. So if Labour wants to be sure of progress on Lords reform, it should implement […] small changes immediately, while consulting on the options for larger-scale reform”.
Professor Russell’s proposal makes eminent sense. Let’s see if the incoming Labour government takes heed.
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