‘Johnson’s dishonours list underlines why Labour must overhaul the Lords’

Robbie Burns famously said that when “ye see yon birkie ca’d a lord/who struts, an’ stares, an’ a’ that”, “the man o’independent mind/he looks an’ laughs at a’that”. Boris Johnson’s “honours” list produced more than the usual crop of birkies being ca’d a lord. But it is hard just to look and laugh when you remember that, as matters stand, those birkies will be making our laws for many decades, when Johnson himself is no more than a distant memory of disgrace.  

Johnson’s ennobled birkies strut into a House of Lords that is already bloated, with 777 sitting members. Most of those members are life peers, many appointed for reasons that are either hard, or all too easy, to work out (22 of the Tory peers appointed since 2010 have between them given £54m to the Tory party). Added to them are 26 Church of England bishops (who at least provide an element of guaranteed regional diversity across England) and, paradoxically, the only “elected” members of the House – namely 92 hereditary peers, chosen in farcical “elections” in which only hereditary peers get a vote.  

Although the Tories no longer have the iron grip on the Lords that they did before most hereditary peers were removed under the Blair government, they are still by far the largest party. As for the large number of crossbenchers, they are almost the definition of the establishment: though often critical of the Conservative Party, they tend to be small-c conservative in their politics.  

Few people outside the Conservative Party regard any of this as satisfactory. But the question is what to do about it. In answering that question, you need to decide first what you want the second chamber to do. There are two schools of thought on that.

Strong case for second chamber’s role in scrutiny of legislation

The first school of thought focuses on the role of the second chamber in scrutinising and improving legislation. There is a very strong case for that. As the Institute for Government’s Alice Lilly has shown, MPs – faced with increasing pressure from their constituents to do casework and wanting to be seen to deliver for their areas – now find it hard to do the detailed work of scrutiny of complex legislation. “I got a new hospital built here” does rather more for an MP’s re-election prospects than “I sorted out the mess in clause 857 of the pensions bill”. It is undeniable that far more in the way of careful and detailed legislative scrutiny happens in the Lords than in the Commons and, as a result, real and important amendments are made that make a real difference to the quality of our laws and to people’s lives.

If you think that detailed scrutiny should be the main job of the second chamber, then that points to an appointed house: in such a house, members can focus on understanding and improving complex legislation, while (because they are appointed) being prepared always to yield to the elected house whenever there is real disagreement. Real reform is needed – but the reform needed for a scrutinising and advising chamber is of the way in which appointments are made.

Such reforms could, for example, include: removing or imposing strict limits on prime ministerial patronage; giving devolved and local government powers to make some appointments (which would help in widening regional diversity, which is currently rather lacking); capping numbers and appointing for a period and not for life; removing the hereditary peers and bishops; and setting a date at which existing life peers who were not re-appointed would leave (with the welcome effect that the Johnson appointments would disappear back into obscurity).

Questions remain about the logistics of an elected upper chamber

Calls for an elected house are based on a rather different school of thought about what the second chamber should do. That school of thought sees one of our central constitutional problems as being the power of a government with a House of Commons majority to pass what legislation it likes.

The Brown commission is the most recent example of that school of thought: its recommendation for an elected second chamber – the assembly of nations and regions – was based on its conclusion that the devolution settlement needed to be entrenched by giving the assembly power to block legislation that changes the devolution settlement (or other major constitutional legislation). Because that would be a power to override a majority in the elected House of Commons, the commission concluded that the assembly would also need to have democratic legitimacy – to be elected.

The issues raised by an elected second chamber are, though, profound. It raises the question of what system is used to elect it (not addressed by the Brown commission, but obviously raising the general issue of proportional representation). It also raises the real risk of constant tension between the upper house and the Commons, with governments unable to get key legislation through. The Brown commission’s response to those concerns was to suggest removing some of the delaying power that the House of Lords currently has. But it seems odd to reduce the current powers of the upper house at the same time as making it more democratic.  

Further, with an elected upper house, you risk removing the factors that make the Lords better at detailed scrutiny than the Commons – expertise and distance from day-to-day political pressures that crowd out time for scrutiny. Any proposal to move in that direction therefore needs to think hard about how to improve scrutiny in the Commons, such as greater opportunity for outsiders (interest groups and experts) to contribute to proceedings.

Labour must set out a plan for much wider constitutional reform

Those are the broad choices: what would I do? I would take a Fabian approach: take it step by step. The manifesto should promise first reform of an appointed house – adopting all or some of the proposals above – to be done in the first or second year of a Labour government. Real reform of the Lords would then be safely completed within Labour’s first term.

Second, it should, in response to the Brown commission, commit to developing a package of much wider reforms to our constitution, of which an elected upper chamber could well be part.

Thinking about that package should not be kicked into the long grass. To be done well, it needs to be done on the basis of careful preparation and a broad consensus, not just in Westminster but across the UK. That may well be a project for more than one term. But that is not a reason for not starting on it.