Lords reform: A lesson in our constitution

The topic which is so important but is often neglected, is once again being pushed aside by the Prime Minister. The rolling nightmare that is the House of Lords delivered yet another scandal this week, as i’m sure you all have seen in the papers. This is a distraction from the real question however, which is what to do with an ever growing House of Lords? This is where almost everyone, apart from the Liberal Democrats seem to have run out of ideas. The reason for this is because of the nature  and construction of our constitution, messing around with the only check on executive power is something which should be handled and thought out carefully. The nature of our parliamentary system also makes it difficult to adapt the real change it needs, afterall it is a rare government which legislates itself to become less powerful.

To fully understand the issue we have to fully appreciate the nature of our constitution. Our constitution isn’t unwritten as a lot of people claim, rather it is uncodified. This means that our constitution is scattered about in various different sources rather than in one document. We have various sources for our constitution in the form of Common law, statute law, european law, convention (unwritten rules), and expert opinions which form the makeup of our constitution. This is unlike other nations like the United States where the constitution is in a document which can be clearly pointed to. Codified constitutions also in general have a direction and a purpose which they want the nation to take, ours is seen by many as rather directionless except in the field of parliamentary sovereignty.

The House of Lords is a powerful example of how our constitution can reform. The powers it has have been changed multiple times by acts of parliament, and conventions even exist around this second chamber. The first time the powers of the Lords was challenged was in 1911 Parliament act. This act crucially curtailed the powers of the Lords, which was dominated at the time by the Conservatives and was blocking the Commons majority Liberal party’s ‘people’s’ budget. At this time the Commons wasn’t the supreme law making body it is today, the Lords had a veto on bills which rendered the Government wishes worthless when the Lords wishes didn’t correspond. The 1911 act revoked the Lords veto on everything except a bill which extended the lifetime of a parliament. The veto was replaced by the ‘power of delay’, the Lords could delay the bill for two sessions which amounted to a two year delaying power. This power of delay wasn’t given to money bills however.

This power of delay was attacked again in the 1949 Parliament act. This not only reduced the Lord’s delay to a year, but denied them amendments on ‘money bills’ (bills which will raise money from tax and bills which specifically spend money). Of course there are bills which this doesn’t apply to, such as bills originating in the Lord’s, Private members bills, bills which try to extend the life of a Parliament, and Bills sent up to the Lords with less than a month to go before the end of the Parliamentary year. However the powers of the Lords were curtailed further, the years between 1945-1951 also saw the evolution of what is now known as the Salisbury doctrine. The Salisbury doctrine is the convention that the Lords doesn’t block a bill which is in the government’s manifesto. This doctrine has in reality even further restricted the hold the Lords has over the government of the day.

The two aforementioned acts are the most important, however other bills regarding the Lords have appeared. These include the 1963 peerages act which gave hereditary peers the right to resign them the first person who did this was legendary Tony Benn. Tony Blair’s reform of the makeup of the Lords removing all but 92 hereditary peerages, and the 2014 Lords reform bill which gives mechanisms where Lords can resign or be removed without an act of parliament being needed as before. The power of the Lords has been diminished from a complete check on the Commons in an undemocratic fashion, to a chamber which can only delay legislation for a parliamentary session. The Commons haven’t picked up any of the powers which the Lords lost which has led to a lack of checks on the executive and the creation of what some call an elected dictatorship.

Lords reform is necessary if Commons reform isn’t coming anytime soon. How to establish this is something which has stretched the minds of scholars and politicians for decades, and will continue to isn’t an easy question. The preferred setup is a completely elected or partially elected second chamber with greater powers than are currently available. Maybe powers to block certain bills indefinitely, and with the second chambers current  powers to propose bills this could create a legitimate second chamber. This would also create a strong check on the executive, which is currently missing from the ‘elected dictatorship’ model. However any move to create a second elected chamber would damage the Commons primacy which was won over a century ago, and would radically change the makeup of Parliament. However as seen before shakeups can happen but only when the pressure reaches boiling point, so while our constitution gives us an ability to radically change the dynamics of power with just one bill, unless there is a big call for something to change nothing will. At the moment we aren’t at that boiling point, however the question is surely when not if.

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