Quentin Langley: An elected Lords would produce better and more popular government

Quentin Langley is a Senior Lecturer in Marketing at the University of Bedfordshire Business School. He has previously taught PR and Political Communications at London Metropolitan and Cardiff Universities.

Let us start with the obvious point: the UK deserves a real second chamber. The less obvious, but nonetheless accurate, point is that we do not presently have one in any real sense. Our ‘upper house’ is a talking shop with no significant powers. It does not discuss finance bills. It has little or no role in holding the executive to account. It cannot block legislation. It can make suggestions – but so can ConservativeHome. Its suggestions can be overridden or ignored. It does not even significantly challenge any legislation which was promised in the manifesto of the governing party. Incidentally, if this precedent is a point of principle and not just a matter of convenience, the Lords should not oppose its own reform at either Second or Third Reading, since the manifestoes of both Coalition parties promised to replace the Lords with a largely (wholly, in the case of the Conservatives) elected chamber.

The ‘constitution’ of an elected dictatorship which Clement Atlee established in the 1940s and which successive Conservative governments have been too timid to challenge, has become so ingrained that we have forgotten that it was the British constitution which inspired Montesquieu to write of an ideal which separates the executive, the legislature and the judiciary. We no longer bother with that.  A temporary majority in the House of Commons – elected by a plurality of voters, perhaps no more than 35% - has total control of the executive and our unicameral legislature.  Since Atlee, we have governed by legislative action. Any restructuring of executive policy – a change in education or health policy, for example – is written into legislation. This means it is enacted on a whipped vote in the Commons. It is not seriously challenged. Suggestions from our alleged second chamber can be taken on board if they suit the government, or otherwise ignored.

In a better future – just as in our constitutional past – we would have a bicameral legislature in which both chambers exercise genuine power. New laws – which potentially put our liberty on the line – could not be passed without significant degrees of consensus, specifically the support of two chambers in Parliament, with significantly distinct mandates. It is not acceptable to maintain either a neutered second chamber with no powers or to pass real powers to a chamber which simply mirrors the Commons, and treats a plurality of the vote as though it is a substantial, unchallenged, majority.

The make-up of a new upper chamber cannot be separated from the question of its powers. What do we want it to do?  Some critics moan that an elected upper house would challenge the supremacy of the Commons. Good. Supremacy is not a good concept for the constitutional governance of free people. In the US – where they still take British constitutional ideals seriously – no-one complains that the Senate challenges the ‘supremacy’ of the House of Representatives. That is a feature, not a bug. It is what the Senate is for.

What then, do we lose if we resolve to re-establish bicameralism? The defences of the role the House of Lords plays have always seemed to me to be pretty thin. People talk about the ‘independence’ of the Lords. It is true that Lords are unaccountable, and cannot be removed no matter how incompetent, lazy, or even criminal, they become. But this is not independence in any real sense. Lords are appointed by the government, and government is appointed by Commons. An upper chamber which is appointed by the lower is the very opposite of independent. People rave about the existence in the upper chamber of certain distinguished people who would be unlikely to seek election. For some reason a number of commentators singled out the Astronomer Royal. I am sure Baron Rees of Ludlow is an excellent man, but he has nothing of any relevance to his expertise to contribute to politics. He has no mandate or legitimacy. On the very rare occasions that the House discusses something on which he has genuine expertise – I believe the House once discussed UFOs – his knowledge can be brought to bear by being an expert witness or writing an article in The Times. Most of the ‘non-political’ crossbenchers have a poor attendance record. I am sure there sixth-formers up and down the country who are more passionate and better informed about politics.  But even if it were sensible to include ‘experts’ in the legislative process, putting them in a weak shadow of an upper chamber is not the way to do it. The only thing they get to do is make suggestions. They can publish their opinions in newspapers or on websites if they want to do that.

What, then, should we expect of an upper chamber? The first question we should ask is what powers do we think should be conferred by a general election win? Let us take the clearest example of what I consider a problem: the result of the 2005 election. With little over a third of the vote (35.2%) Labour won a clear overall majority. This was a majority that not merely sustained the party in power but give it the unrestrained power to create legislation and rewrite the constitution. Is it right that a mandate awarded by just a third of those voting – and less than a quarter of those entitled to vote – should confer such untrammelled power? The House of Commons could have enacted, had Labour not had internal problems on the issue, a requirement that everyone in the country should carry identity papers. Is that really something that a third of the country can vote to do to the rest of us? This does not seem just.

In assessing the potential powers of an upper chamber we therefore need to distinguish between the executive and the legislature. Our executive arises from the House of Commons and winning a plurality of the vote is normally enough to secure a majority in the House. Usually, the most popular party gets all the government positions. Any alternative system means, as at present, at least some government positions going to a less popular party. While no system is perfect, First Past the Post (FPTP) seems to me to be the best way of choosing a government. But as a way of determining the law and future of our liberties, it is an insufficient defence.

I therefore favour leaving the Commons as it is, with the sole power to determine the government. This will probably mean a plurality in the aggregate vote being enough to secure a majority for the government – most of the time. Once every generation or so this system fails us on that measure. That is a situation we can tolerate.

But to change the law should require a much greater consensus. A party in office on the basis of a minority vote should generally need to negotiate wider consensus if it wishes to change the law. Legislation should therefore require to be passed by both chambers, as in the US Congress. Such an idea confuses some people. They want to know what happens if a bill has the support of one chamber but not the other. The answer is simple: it does not pass.  A plan by a future Labour government to nationalise the banks, introduce ID cards or reintroduce conscription would therefore probably fail, even if the government had a significant majority in the Commons. Nor could changes to our constitution or new European treaties be enacted without similar consensus.  But a government’s inability to enact new legislation should not threaten that government’s survival. The upper house should have no role in holding the executive to account, nor should its consent be required for the budget.

It should be clear that I am writing here of an upper house that has its own mandate. That means it needs to be elected, and to be elected in a way that is significantly different from the elections to the Commons. A different term of office would not be sufficient, as whichever house was more recently elected would always be claiming to have the superior mandate.

For a House that has a purely legislative role, much the best system of election would be the single transferable vote (STV). It is simple – at least for the voter – as anyone who can count to ten can place candidates in order of preference. It is not the same as AV – which we appropriately rejected for the Commons – but the best argument for rejecting AV, that it would lead to permanent coalitions, does not apply to elections for a purely legislative upper chamber anyway.  STV uses multi-member constituencies. Almost everyone reading this would therefore have a Conservative representing them in the upper chamber, as the Party would be likely to win at least one place in nearly all constituencies. There would, typically, be 4-6 members per constituency, so the constituencies would be significantly larger than for the Commons. Unlike the party list system (proportional representation) STV elects candidates as individuals, not as party representatives. There are wider opportunities for independents to be elected. Parties are generally less dominant in STV election than in FPTP, let alone the list system.

How, then, would the post-war decades have differed if we had had a real upper chamber as I have outlined? Labour would not have been able to implement its nationalisation programme by legislative decree in the 1940s. If the Atlee government had wanted to buy the mines, the railways and the Bank of England, it would have to have purchased those shares on the open market. This means that when we realised how foolish these measures were, and finally elected a Prime Minister with the courage to do something about it, she would not have needed legislation to privatise either. The government could simply have sold its shares.

Unfortunately, we are now in a situation where every health or education reform a government introduces is written into legislation. This means that future governments which wish to change past laws need a legislative majority to do so. The solution to this is to append to all laws a sunset clause. All laws should lapse, failing an affirmative resolution by both chambers to renew them. This would ease us out of the awkward situation where executive policies are written into law, and thus un-amendable, except by a government which has a majority in both chambers. We would end up with a lot less law, and a much more accountable government.