Andrew Lilico: Ten points to note on the Lords reform bill vote tonight

The first of the really key votes on Nick Clegg's proposals for an elected Lords are due this evening.  Here are ten points to note.

1) Its proponents say there were commitments in the major party manifestos to legislate for an elected upper chamber.  That is simply untrue.  The Conservative 2010 Manifesto, for example, states (p67): "We will work to build a consensus for a mainly-elected second chamber to replace the current House of Lords".  There is no commitment or even stated intent to legislate there.  Some suggest that saying the Manifesto does not actually promise to legislate is mere word-play and that the commitment to legislate is clear.  But that really isn't so, not merely because manifesto commitments that are vague allow MPs to stand on a platform of their own interpretation, but also because it isn't so as straightforward matter of where the phrase "to build consensus" actually comes from as a matter of history.

The concept of "building a consensus" on a mainly-elected second chamber goes back to a series of votes brought forward by the Blair government on February 4th, 2003, which sought to find a "consensus" (precisely that word) in the House of Commons on the way forward for Lords reform.  The Commons voted on the principle of a range of options from a fully elected to a 20% elected upper chamber.  All reform options were defeated, leaving that attempt to build a consensus in "tatters".

Given that that was precisely the concept and wording of the 2003 attempt, the most straightforward and natural interpretations of the Conservative 2010 Manifesto are that, in the first instance, a Conservative government would seek to build a consensus amongst the public and opinion-formers on the question, and if it came to votes in the Commons they would be similar in nature to those of 2003.

It is thus straightforwardly and unambiguously wrong to assert that the Conservative 2010 manifesto included any commitment, either explicit or implicit, to legislate for an elected upper chamber.

2) Proponents of the bill claim that the Coalition agreement promised to legislate for an elected upper chamber.  What the Coalition agreement actually stated was (p27): "We will establish a committee to bring forward proposals for a wholly or mainly elected upper chamber on the basis of proportional representation."  To "establish a committee to bring forward proposals" is clearly not the same thing as "to legislate", and this is no merely semantic point.  In the preceding three paragraphs the agreement states "we will legislate" to bring in fixed term Parliaments, "We will bring forward a Referendum Bill" and "whip both Parliamentary parties in both Houses to support a simple majority referendum on the Alternative Vote", and "We will bring forward early legislation to introduce a power of recall".  Thus, when the Coalition agreement fails to mention either explicit legislation or whipping in respect of Lords reform, it is drawing a clear distinction between that measure and others in the Coalition agreement.

But even if the Coalition agreement did involve a commitment to implement the recommendations of that promised Lords reform committee in legislation, that is not what the Clegg bill does.  For one of the Lords reform committee's proposals (paragraph 6.87) was:"The Committee recommends that, in view of the significance of the constitutional change brought forward for an elected House of Lords, the Government should submit the decision to a referendum".  Many of us are opposed to referendum, but proponents of the idea that the Coalition agreement commits to legislation cannot have it both ways - either the Coalition agreement does not commit the government to enacting the proposals of the committee it promises in legislation, or it does, in which case it is committed to a referendum.  Either way, the current Bill clearly does not reflect any Coalition agreement commitment.

3) Proponents of the bill urge that there is something fundamentally improper or illegitimate about unelected people being involved in the making of laws.  But unelected people are involved in the making of a vast range of laws that apply in the UK.  First, because in all modern countries the process of lawmaking involves bureaucrats and similar unelected persons making decisions to bring forward or shelve regulation at many stages.  Second, because many many legal requirements applying in the UK are set by unelected bodies, through areas such as EU law and regulators such as Ofcom and the Financial Services Authority.  (Do Lib Dems now consider all EU law illegitimate?)  The assertion that it is illegitimate for unelected persons to be involved in lawmaking simply does not reflect reality.  And that is not inappropriate, because the democratic imperative is that the democratic will should serve as an input to policymaking and perhaps have ultimate over-riding authority (as when the Commons can over-ride the Lords, or Parliament can over-ride Ofcom), not that the democratic will should be the only input.

4) The purpose of a second chamber is not simply so that every bill can be voted on twice and scrutinised/reviewed closely.  We could do that with just the Commons, under a unicameral system.  The point of having a second chamber is to provide a different sort of input from the input provided by the first chamber.  A different sort of input is not provided if we have essentially the same kinds of people, drawn from much the same sections of society and selected in much the same way, as in the Commons.  There are many forms of genuinely different input possible.  We could have input based on people's work (e.g. by having delegates of unions and employers' groups such as the CBI); input from technical experts such as doctors, lawyers, scientists (e.g. by having delegates sent from professional bodies); input based on people's religious observance (e.g. by having delegates from religions, proportionally to their numbers of regular attendees); input from the men-and-women-in-the-street, much as we do for juries, by having a form of jury service in the second chamber; or many other indirect selection mechanisms for providing a genuinely different perspective.

In the key countries, such as the US, where the second chamber is directly elected, that election is still on a basis that provides a different form of input from the first chamber.  For example, under federal systems upper chambers frequently include members elected at federal state level, as opposed to district or national level.  But the UK is not a federal country, and so has no such different basis for directly elected representatives available.

5) Proponents of the bill allege that a different perspective is provided by having the personnel of the second chamber elected in a different way and serving different terms.  But that is wrong, in two ways.  First, it is wrong because having a different electoral system does not mean that a different sort of person, with a different sort of expertise is chosen.  It just means that the balance between the political parties is somewhat different.  But the political parties (quite properly) provide one kind of perspective, reflecting the fact that their elected members are representatives of their constituents.  Secondly, it is wrong because the point of an election is to find the best mechanism to reflect the democratic will.  If proportional representation, for example, is an inferior mechanism for reflecting the public will, then members of the second chamber would simply be an inferior expression of the democratic input.  What merit would there be in having legislation revised by an inferior as well as the superior expression of the democratic input?  Second chamber revisions would be simply pointless and time-wasting.

6) Many of those concerned about the bill fear an elected second chamber would challenge the authority of the Commons, as elected members would not feel the same deference to the elected will as currently felt by appointed Lords.  Proponents of the bill claim that the primacy of the Commons would be legislated for, if appropriate.  But could that really be sustainable?  For example, since Lib Dems believe that proportional representation provides a superior expression of the democratic will and that the democratic will is the only legitimate basis for policymaking, it surely follows logically that Lib Dems will believe a second chamber elected by PR to be more legitimate than the Commons.  So in due course Lib Dems would inevitably agitate for the PR chamber to have primacy.

7) Proponents of the bill allege that almost all other countries have directly elected second chambers. In fact, around half of sovereign states are unicameral, and of the others there are 34 second chambers using indirect selection, of which 16 use only indirect selection.  The "minority report" of the dissenting members of the Lords reform committee urged the government to look at indirect selection in more detail.

8) All concerned understand that the purpose of the Clegg bill is to vest the power of the Liberal Democrats semi-permanently, by the use of proportional representation in the upper chamber, after the Lib Dems failed to secure electoral reform for the Commons.  Some 68% of the public rejected electoral reform in the AV referendum.  Did the many Conservative MPs that fought so hard for a No vote in the AV referendum really do that just so that electoral reform could be whipped through the Commons anyway, in defiance of the referendum result?

9) It may be suggested to some MPs that their chances of a future government job could be damaged by defying the whip on Lords reform.  But how many government jobs will there be available for Conservative backbenchers if the Lib Dems are permanently in power through PR?  And given that senior figures in previous major rebellions, such as Maastricht rebel Iain Duncan Smith, have gone on to party leadership and Cabinet ministership, how much leverage is that, really?  In truth, when a rebellion reflects the mood of the Conservative Party and the whipped line is against that mood, over the longer-term the rebels can only suffer so much.  And Conservatives have always been sceptical about Lib Dem constitutional tinkering.

10) Does anyone remember a rebel?  Do rebellions achieve much except a vain moment in the limelight for the rebels?  Answer: remember the euro, and the remarkable benefits created for the UK by the heroic rebellions of the mid-1990s.  Rejecting a directly elected, PR-vesting, Lib Dem-favouring Lords reform bill is unlikely to have as visible a vindication as rebelling to prevent the UK from joining the euro, but it could be no less valuable, and those involved no lesser heroes, over the longer-term.