United Kingdom Journals

		[2000] 4 Web JCLI

Future Imperfect: Reform of the House of Lords

Brian Thompson

Liverpool Law School,
<wbt@liverpool.ac.uk>

Copyright © 2000 Brian Thompson
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

A House for the Future, the report of the Royal Commission on the Reform of the House of Lords was not well received by commentators but the government accepted its basic principles. The government will bring forward its proposals following consultations on the report with interest groups and consideration by a joint committee of the Houses of Commons and Lords which will probably be convened around the start of the 2000-01 session. Some difficulties are indicated in the report's recommendations and it is suggested that there will have to be further reform.

Contents

Introduction
The commission's report

Role
Functions and powers

Composition

Appraisal

Composition
Watchdog role
Non-legislative functions
Law Lords

Conclusion

Bibliography

Introduction

Reform of the House of Lords was to be accomplished through a two stage process according to the Labour government's policy (White Paper 1999). The first stage involved the removal of the right of the hereditary peers to sit and vote in the House of Lords. The second stage would culminate in a new second chamber which would follow on from the report of a Royal Commission dealing with issues such as what the reformed chamber would do and how it would be composed.. The first stage was achieved, but not according to the government's original intentions, through the House of Lords Act 1999. It was clear to the government that a bill providing for the complete removal of the hereditary peers would not have an easy or quick passage through the House of Lords. Secret negotiations were entered into with Viscount Cranborne, the shadow Leader of the House of Lords, on the basis that a compromise which would allow some hereditaries to continue to sit and vote until the second stage was finalised. When the negotiations became public, Viscount Cranborne was dismissed by the leader of the Conservative Party but the idea of retaining some hereditaries was acceptable to the House of Lords even though it was not the official policy of either the government or the opposition (BBC 2000, The Guardian 2000a). The government indicated in the White Paper (1999, para 5.11) that they would not resist an amendment to this effect. In due course the convenor of the independent cross-bench peers, Lord Weatherill, a former speaker in the House of Commons, moved an amendment which allowed for 90 hereditary peers to be excepted from the removal (and additionally for those hereditary peers who might hold the royal offices of the Earl Marshall and the Lord Great Chamberlain - House of Lords Act 1999, s 2).

The 90 excepted hereditary peers were divided into two groups, one which is a sample numbering 75 and the other group of 15 consisting of peers who were prepared to act as Deputy Chairmen of Committees. Both of these groups had quotas for the three main political parties and the independent Cross-benchers. These quotas reflected proportional strengths amongst the hereditaries. The quotas for each of the two groups were as follows: the Conservatives 42 and 9, Labour 2 and 2, the Liberal Democrats 3 and 2 and the Cross-benchers 28 and 2. With the coming into effect of the House of Lords Act 1999, the House of Lords is a transitional chamber between the old house whose membership was mainly hereditary peers ( 750 out of a total 1,295 as at 4 January 1999 - White Paper 1999, para 3.3) and the reformed second chamber. This transitional house, which met for the first time in the 1999-200 session, was composed of appointed and elected peers. The appointed comprised the Lords Spiritual and the Law Lords, the Life Peers and the two hereditary peers holding royal offices. The `elected' peers were ironically, 75 hereditaries chosen by all of the hereditaries, and 15 hereditaries prepared to be Deputy Chairmen of Committees elected by the whole house. The arrangements to elect these excepted hereditaries are regulated by House of Lords Standing Order No 9.

The Royal Commission on the Reform of the House of Lords chaired by the Conservative peer Lord Wakeham, was given the following terms of reference:

Having regard to the need to maintain the position of the House of Commons as the pre-eminent chamber of Parliament and taking particular account of the present nature of the constitutional settlement, including the newly devolved institutions, the impact of the Human Rights Act 1998 and developing relations with the European Union;

to consider and make recommendations on the role and functions of the second chamber;

to make recommendations on the method or combination of methods of composition required to constitute a second chamber fit for that role and those functions;

to report by 31 December 1999 (White Paper 1999, para 2.23).

This was a tall order as once one begins to consider the role and place of the second chamber, the more one realises how interconnected it is with the other parts of the United Kingdom's constitutional arrangements. The report (Wakeham 2000) was produced on time and did not include a minority report. The only difficult area for the commissioners concerned the arrangements for the elected members of the chamber and this was finessed by producing three options, thereby justifying the choice of Lord Wakeham as a person capable of producing deals, a point emphasised in a newspaper profile published before the report (The Guardian 2000b).

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The commission's report

The commission's methodology was to issue a consultation paper with questionnaire, conduct nine public hearings in eight locations throughout the United Kingdom and commission background papers. They had their own website from which the White Paper, details about the commissioners, and information about the public hearings, including transcripts of the sessions, and eventually their report could be accessed. While they received 1,734 submissions of evidence (the great majority of which are available on the CD-ROM which accompanies the report but are not otherwise published), the numbers of people attending the public hearing was not large 1,026 in total of whom 599 completed the questionnaire with a further 340 questionnaires completed via the website (see Wakeham 2000, Appendix A).

The commission began with four key criteria: a modern second chamber should be conducive to a stable overall constitutional settlement; complement the work of the House of Commons; assist Parliament as a whole to provide better scrutiny of the Executive; and thus contribute to better Government (Wakeham 2000, para 1.3).

The approach of the commission was to decide what the role and functions of the second chamber should be, which in turn would lead to the necessary powers the second chamber should have and then this would set the criteria for the composition of the second chamber. All very logical, except that the logic was not quite rigorously applied in retaining the Law Lords as their judicial function does not sit very obviously with the legislative and deliberative functions of the second chamber.

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Role

The roles to be performed by the second chamber according to the commission are:

• To provide a diversity of perspectives on issues of public policy;
• To be broadly representative of the identities of the people of the United Kingdom in terms of gender, ethnicity, region, vocation, culture and religion;
• To act as a check and balance which would be complementary to the House of Commons, so as to be ale to identify issue of concern and be able to require the Commons to reconsider or justify its action;
• To provide a voice for the nations and regions of the United Kingdom (paras 3.18-3.20).

Functions and powers

As the recommended roles are not much different from conceptions of the current House of Lords, it is not very surprising that the commission's proposals on the functions and powers of the new second chamber do not include many changes.

Legislation

The basic settlement of the Parliament Act 1911 is endorsed. The power of the suspensory veto in relation to primary legislation is retained (para 4.12) and it is proposed that this type of delaying power should also apply to secondary legislation instead of the current absolute veto. The delay which could be imposed would be three months (para 7.37). It is also recommended that the praying time, the period in which it is possible to seek to annul a statutory instrument under the negative resolution procedure before it comes into force, should be increased from 40 to 60 sitting days (para 7.28).

The commission suggest that there should be more pre-legislative scrutiny of bills and that the new second chamber could take on a particular responsibility in relation to consolidation and Law Commission Bills (paras 4.33, 4.49, 4.51). The work of the Delegated Powers and Deregulation Committee is commended and encouraged (paras 4.45, 7.22).

Protecting the constitution

It might have been thought that this particular aspect of the role of being a check and balance would have required new powers but only one was recommended by the commission. They were concerned about the fact that the Parliament Act 1949 was passed using the procedure of the 1911 Act and they suggest that if the 1911 Act is to be amended then it should be passed by both Houses in the normal manner (para 5.15). In this way they hope to ensure that the alteration of the duration of a Parliament can only be achieved by agreement between the two chambers.

The major way in which it is envisaged that the reformed second chamber will fulfil the role of a constitutional long-stop is by the creation of a Constitutional Committee which will act as a focus for the consideration of constitutional aspects of Bills which come before the chamber (para 5.22). It is further suggested that a Human Rights sub-committee be created in order to review the implications for human rights of proposed measures and actions of the executive (para 5.30-5.33). There is clearly overlap with the proposal for a Constitutional Committee and the Joint Commons and Lords Human Rights Committee which the government has proposed. In relation to the former it is suggested that the Constitutional Committee would be dealing with broader aspects of human rights, which would leave the proposed sub-committee to conduct detailed scrutiny. So far as the Joint Committee is concerned, its suggested remit requires it to be convened to examine a bill where the ministerial statement made under the Human Rights Act 1998, s 19, upon on the introduction of the bill to Parliament was that the bill was not thought to be compatible with the European Convention on Human Rights but that the government still wished the measure to be enacted. The commission thought that it was likely bills would throw up unexpected and unintended human rights problems and that the reformed second chamber with its expert membership would be an appropriate body to carry out detailed examination of bills so as to alert the chamber, the Commons and the public to these issues (paras 5.28-5.30).

Holding the government to account

The commission thought that the new reformed chamber should be able to enhance its methods of helping to hold the government to account by altering its procedures so that that, in addition to being able to question ministers who were members of their own chamber, ministers from the House of Commons could come to them to make statements and be subject to questioning (para 8.7).

The House is widely acknowledged to perform high qualify scrutiny of European Union business and to do it in a complementary fashion to the work of the Commons. This should be maintained and improved (para 8.16). This will require extra resources for the European Union Committee (para 8.16) Extra time should be made available for oral questions on EU issues and the chamber should help to make MEPs welcome in Westminster (para 8.21) and to continue to develop inter-parliamentary contact and co-operation with the European Parliament and the national parliaments of the member states (para 8.26)

The House of Commons has committees which scrutinise (a) departments of government and (b) cross-cutting subjects such as Environmental Audit. In the House of Lords there has been a tradition of conducting specialist investigations in science and technology which complements the Commons and makes use of the expertise in the Lords. This type of specialist investigation should continue (para 8.29) and they recommend that one new area which the reformed second chamber could take-up, would be the scrutiny of new treaties (8.42).

Territorial voice

The United Kingdom is now quite clearly not a simple unitary state. Devolution of legislative and executive powers to the Scottish Parliament and Northern Ireland Assembly, and executive powers to the National Assembly for Wales and Mayor and Greater London Assembly has occurred and some English regions wish to have their own directly elected assemblies. The new second chamber could take on the role of ensuring that the nations and regions of the United Kingdom have an opportunity to ensure that their perspective is taken into account (para 6.5). Indeed it was thought that in addition to the notion of territorial voice, the second chamber could with its representation of the nations and regions, provide a kind of `constitutional glue' in the evolving constitutional settlement which is both uncharted and fissiparous (para 6.3). The commission quote Lord Richard and Damien Welfare who use somewhat high-flown language

Representation in the second chamber offers a route to a shared identity which is political but which does not directly affect the control of the government of the country... a reformed second chamber could be the missing piece of the constitutional jigsaw, serving as the pinnacle of the structure and a focus of unity. (Richard & Welfare 1999, p 172).

The territorial dimension will be accommodated by representation (para 6.8). The only elected members proposed in the new second chamber will be from the nations and regions. The types of issue which it is thought that they will help the second chamber address include

• An underlining of the fact that, in broad terms, the second chamber should be representative of the whole of the United Kingdom;

• contribute to cohesion;

• help resolve concerns about the protection of Scottish interests in the second chamber arising from the removal of the Scottish hereditary peers;

• provide a resource which might assist the second chamber to play a role in relation to the devolution settlement;

• build on the emerging political identity of the nations and regions of the United Kingdom;

• and leave options open for the future if the United Kingdom were to move to a more explicitly federal structure (para 6.8).

The commission also recommend that there should be a Devolution Committee, possibly a sub-committee of the Constitution Committee which would consider the implications and future handling of inter-regional transfers, which are becoming more transparent; the overall operation of the Memorandum of Understanding and Concordats published on 4 October 1999 and of the other bilateral concordats which are being drawn up; and lessons that might be drawn from the actual operation of the devolution arrangements and how they might be adjusted to meet legitimate concerns. The second chamber with its territorial voice would, accordingly, be well-placed to consider these issues (paras 6.23 6.25).

Judicial

The structure of the commission's report is somewhat strained by dealing with the Law Lords in the section on functions. The case for retention of the Law Lords and their judicial function is not based on a view that the second chamber should have this function but rather that since the House of Lords currently has this function and this has allowed the Law Lords to contribute their expertise to the chamber's consideration of legislation and European matters (paras 9.1-9.7) . They suggest that the Law Lords should set out in writing and publish a statement of the principles which they intend to observe when participating in debates and votes in the second chamber and when considering their eligibility to sit on related cases (para 9.10).

They also state that there is no difficulty with the Lord Chancellor continuing to preside over the chamber's business (paras 9.12, 16.11).

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Composition

The commission elaborated the following criteria for the composition of the reformed second chamber: it should be authoritative, confident and broadly representative of the United Kingdom; there should be breadth with experience from outside the world of politics and with skills relevant to constitutional and human rights issues; it should be able to bring to bear philosophical, moral and spiritual perspectives on issues; individual members should have personal distinction; there should be freedom from party, proceedings should be non-polemical and conducted in a courteous manner and the chamber should be capable of taking a long-term view (para 10.3).

The White Paper proposed four methods by which a person might become a member of the new second chamber; wholly directly or indirectly elected, wholly appointed or a mixture The commission also considered co-option and random selection. Their preference was for a mixed chamber in which the appointed members substantially out-numbered those elected. There was no unanimous view on the relative percentages of the two categories or on the method of election but it was agreed that the elected members would represent the nations and regions. Three options were proposed. Model A would elect 65 members derived from the results at general elections (paras 12.26-12.32). Both of the other options would be tied in with elections to the European Parliament. Model B, which has the support of a substantial majority of the commission (para 12.42) would use the closed (voters only choose parties) or partially open list (voters may choose a party or particular candidate) variant of proportional representation to elect 87 members (paras 12.33.12.38). Model C would use a partially open list to elect 195 members (paras 12.39-12.42). Tenure in the new chamber would be15 years both for those elected and appointed, although with general elections not being fixed, the formula of three electoral cycles would, under Model A probably not amount to 15 years. Reappointment would be possible but the elected members would not be eligible for reselection on a regional basis (para 12.18). A member of the second chamber would not be eligible for election to the Commons until 10 years after membership of the second chamber had elapsed. This would apply where the termination of membership occurred by expiry or early retirement (para 12.21). An Appointments Commission (AC) would be the independent body acting as the gateway to the second chamber for both elected and appointed members. The AC would have no discretion with respect to elected members, Law Lords and the 16 representatives of the Church of England (para 13.5). The AC in seeking to ensure broad representation would be working with targets for particular groups women (minimum of 30% gradually working toward equality), ethnicity and political affiliation. The equivalent of the Cross-benchers should be about 20% and the political balance should broadly reflect the result of the last general election. While the representation of the Church of England is to be reduced from 26 to 16, there would be 10 places for other Christian denominations with five places for England and five for the rest of the United Kingdom. There should be a minimum of five places for non-Christian faith communities (paras 15.17-15.19). In England the basis for determining representation is the number of baptisms (para 15.19). This plus the special position of the Church of England as the established church justifies the allocation of places to that church. The AC will have the final responsibility on the appointment of all the non-Anglican representatives but they will be expected to consult with relevant groups (paras 15.17, 15.22). In relation to the non-Christian faith communities, the AC will be expected, over time, to ensure that the range of such faith communities will have had representation in the second chamber (para 15.17).

The commission in its proposals on dealing with the existing Life Peers, draws a distinction between those created before their report and those created after publication but before the enactment of legislation implementing the reform. The former shall be deemed to have been appointed to the new chamber for life and the latter for a period of 15 years from the award of the peerage (paras 14.12, 14.14). These peers could renounce membership of the new second chamber and if they did so would be ineligible for election to the Commons for 10 years (paras 14.15-14.16). If they do decide to sit in the new chamber they should be encouraged to discuss with the AC how long they intend to serve (para 14.17)

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Appraisal

The reception given to the report was fairly critical (Winetrobe 2000, p26; BBC 2000). It was felt that the commission had been too timid, perhaps giving excessive weight to the point in their terms of reference which accorded pre-eminence to the House of Commons. Quite a lot of attention was devoted to the proposals on composition with their preference for a clear majority of appointed members.

To be fair to the commission, the context for their work was somewhat difficult. The devolution process has only recently been begun and it is unclear how it will develop, for example will there be English regional devolution? It would seem that the relationship between the two Houses of Parliament cast a very long shadow over their deliberations and given that the Commons is slowly trying to modernise itself, that makes it harder to decide upon the reformed chamber's complementary powers.

It is surely not accidental that the very first paragraph of the report stated that

Our aim has been to produce a report that could command a reasonable degree of consensus across the political spectrum and that would therefore stand a good chance of being implemented in the near future' (Wakeham 2000, para 1.1).

After all, attempts to reform the House of Lords have been sought since the first decade of the 20th century when the difficulties over Lloyd George's `Peoples Budget' led to the Parliament Act 1911. This statute removed money bills from Lords' influence and imposed the suspensory veto. The statute's preamble also indicated the longer term desire to replace the Lords with a second chamber constituted on a popular rather than the hereditary basis and despite various attempts reform had not been accomplished. If Wakeham was to succeed where others, including Bryce (1918) had failed, then `not frightening the horses' would be the appropriate strategy. If one looks at the recommendations then the differences between their new second chamber and the old or transitional House of Lords are few. There would be elected members, but in a minority and the patronage powers of appointment would be in a statutory AC rather than the recently established non-statutory quango or Non Departmental Public Body (House of Lords Appointments Commission 2000; Winetrobe 2000, pp7-14). In the debates on the report in both Houses it is noticeable that the differences are within rather than between parties. Some believe that a totally elected chamber is essential, others say that a totally appointed chamber is appropriate and others accept a mixture of elected and appointed (see HL Deb. col 911; HC Deb col 48.)

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Composition

The arguments against a totally elected chamber all refer back to the House of Commons. It is the elected chamber and the second chamber is meant to be both inferior and complementary. Accordingly it is not undemocratic for the second chamber to be appointed as appointment serves both to underscore the primacy of the democratic basis of the Commons and to provide the second chamber with expertise which the electoral process may not provide in the Commons. In his submission to the commission Professor Lord Norton of Louth, suggested that a wholly elected or part elected second chamber could be viewed as anti-democratic. He posited the situation where a measure had popular support but one of the two elected chambers rejected the measure. Both chambers can claim electoral legitimacy but insofar as the popular will had supported the measure, then its rejection could be considered anti-democratic and if this was repeated then support for the political system could be undermined, for which he cites as an example the USA (Norton 2000, pp 17-18) While Norton concedes that liberal-democratic theories qualify majoritarian democracy and do lend support to the argument that legislative chambers do require electoral legitimacy, he seems to be implying the United Kingdom is, or should be, democratic so that the people are sovereign. In our constitutional theory it is parliament which is sovereign not the people, partly because of the political elite not trusting the people because of their ignorance or prejudice, and now with the Human Rights Act 1998 on the principle that certain matters are so fundamental that they are to be protected by, but not to be left entirely to, the courts.

Another objection to the pre-eminence due to the Commons because of its electoral legitimacy, is the argument that the mandate of the Commons is flawed because the `first past the post' system provides legislative power in excess of the actual support which the party forming the majority in the Commons actually enjoys. Logically the solution to that problem is to have a system of proportional representation for the Commons rather than using the second chamber to address it.

So the problems caused by a wholly elected second chamber are that (a) the rival mandates can lead to gridlock where the two chambers have different political complexions, and (b) the second chamber is too compliant where the same political party is in control of both chambers.

The commission felt that proportional representation in a wholly elected second chamber would exacerbate competing mandates and that limiting the powers of the second chamber was unjustified. The use of staggered elections to the two chambers would not resolve all of the problems.

The AC is proposed to have 8 members with the three main political parties being represented and one nominee from the Convenor of the Cross-benchers plus four independents from whom the chair would be drawn (para 13.14). Their tenure is safeguarded as they hold office for 10 years and can only be removed by resolution of the second chamber (paras 13.19-13.20)

They have the responsibility of determining the size of the second chamber and it could fluctuate depending upon the regular reviews which would consider workload, levels of attendance and the political balance which reflects the share of votes cast at the previous general election (para 13.28). Appointment and nominations are to be encouraged from under-represented groups and appropriate representation of the nations and regions (paras 15.29-15.30). The body is to be proactive (para 13.39) and its decision will be final leading to the situation that a person in a political party who was out of favour with that party's leadership could be appointed (paras 15.42-15.43), presumably on the basis that the particular individual helped the total membership to meet the broad representativeness targets and possessed the broad characteristics which are to published nd revised by the appointments commission (para 15.34).

Truly this is a super-quango. It is somewhat disturbing that it can determine the total membership. The figure of 550 is mentioned (para 13.27). That would mean the AC would be selecting 485 members in Model A, 463 members in Model B and 355 members in Model C. As at August 2000 there were 602 Life Peers in the House of Lords and so, given that they could continue in the new chamber, it could take some time before death and early retirement brought the membership down to 550 which is far larger than most second chambers. Italy's Senato has 326 and the French Sénat has 321. The justification for this is to ensure a chamber which is independent, expert and not dominated by career politicians, then members would be part-time and so more would be required (para 13.25).

I think that the commission is correct to propose a mixed chamber. The positive reason is that there must be some electoral legitimacy. This rules out the other options and as for indirect election, the members of the devolved institutions have jobs to do in those bodies. The difficult issue is what should be the relative proportions of appointed and elected members? The commission's argument for having more appointed members was in part due to a concern that there would be different perceptions of the two types of member and tensions between them (para 12.6). The complementary view of the role of the second chamber suggests that it should seek to have expertise and the commission's desire for a more broadly representative chamber in terms of gender and ethnicity, and absence of affiliation to political party is unlikely to be met by election. Add to this the concern with voter fatigue and the possibility that election to the second chamber would be likely to use another voting method, then voter confusion could be added to fatigue.

Much as those who fought for universal adult suffrage might despair that citizens should be so apathetic about voting, it is a fact of life. The 1999 local council and European Parliament turnouts were very low and the likelihood of second chamber elections following this tend is probably very high. Of course if one gives people reasons to vote, that they are voting for bodies with powers that they understand and are worthwhile, then as in general elections a healthier turnout can be achieved. It will be difficult to get excited about electing a check and balance, or a revising chamber. It sounds too technocratic and bloodless. If the body has real powers then it must have electoral legitimacy but this will lead to the rival mandates and more professional politicians. This is viewed with alarm but is the prospect so terrible? Is gridlock likely? The lessons from overseas show that conciliation committees can cope with those situations in which the two chambers disagree over a bill (Russell 2000a, 2000e).

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Watchdog role

Powers and composition then are linked. The most important powers of a second chamber relate to protecting the constitution and the revision of legislation generally. Is the suspensory veto sufficient for a constitutional long-stop? In Italy and Spain the Senato and Senado can require a referendum on certain types of constitutional legislation. The problem in the United Kingdom is that the absence of a codified constitution makes it very difficult to determine what is and what is not constitutional. The Liberal Democrat submission suggested the following as constitutional categories which the second chamber could protect: the franchise, the secret ballot, the voting system, the incorporation in to British law of the European Convention on Human Rights and any other international human rights treaties, the powers of either House of Parliament, the devolved powers of Parliaments and Regional Assemblies, the existence of local government, the independence of the judiciary and the membership of the European Union. Where changes were proposed to any of these then the second chamber would have the right to reject it and this could only be overridden by a referendum (Liberal Democrats 2000, pp 21-22) .

One of the commissioners, Professor Dawn Oliver, was initially convinced that only a wholly elected second chamber would be legitimate. She explains her change of mind by conceiving of the second chamber as a Council of State in which electoral legitimacy is not required, however, the analogy she seeks to draw with a Supreme Court or the French Conseil d`Etat or Conseil Constitutionnel are not exact. In France the adherence to separation of powers means that no other organ of government can interfere in the exercise of another organ's powers. The French Conseil d'Etat, now in its third century, has many tasks. The advice it offers on legislation is akin to that of Parliamentary counsel on legality and senior officials on administrative issues as its members have legal and administrative expertise. The Conseil d'Etat is part of the executive (see Bell 2000, Questiaux 2000). The Conseil Constitutionnel which conducts constitutional review of legislation, is formally part of the legislature with the President of the two chambers nominating three members each and the President of e Republic nominating the other three. It is, however, acting more and more like a supreme court and it does have a codified constitution as the benchmark for review (Bell 1992).

The French parallels then are not precise. If we still have parliamentary sovereignty beyond EU matters then the check on the Commons must surely have more electoral legitimacy than the even Model C provides. It is a fine balance to say these powers require electoral legitimacy rather than authority derived from expertise and independence and not to fulfil the unjustified fear of rival mandates. The competition between mandates can be reduced by the second chamber having a proportion of one third who are appointees. This, it is suggested, means it is inferior but also means that it has the legitimacy to act as a constitutional long-stop.

The commission do indicate that the nature of the work of the second chamber means that areas of particular expertise which it needs are legal, constitutional and human rights. The latter two areas are not necessarily linked to law so that the chamber does not need to have a substantial number of lawyers.

One of the areas of concern is the proposal to transform the veto over secondary legislation from absolute to suspensory. It is felt that the absolute veto is too drastic and so it is not used, although it was used after the publication of the report on 22 February 2000 the House of Lords voted against the Greater London Authority (Election Expenses) Order 2000 (HL Deb col 136) and approved a prayer of annulment against the Greater London Authority Elections Rules 2000 (HL Deb col 182). My concern is that the volume of secondary legislation is increasing and it can have constitutional consequences. On the coming into force of the Human Rights Act 1998 where the courts have determined that there is incompatibility between Convention rights and British legislation (s 4), then it is open to Parliament to approve a remedial change in the law by secondary legislation using, if desired, a fast track procedure (s 10). While the courts may be able to strike down some statutory instruments as being incompatible with conventions, others will require remedial legislation. If the second chamber is to act as a check then the suspensory veto does not seem to be a sufficient power. The commission rejected the idea that statutory instruments could be amended, arguing that this would be running against the reason for resort to them. Given their proposal that more statutory instruments should be published in draft for scrutiny, they feel this is adequate (para 7.28). The amount of legislation whether primary or secondary which the government can issue in draft for scrutiny is restricted due to resource constraints including the number of available Parliamentary counsel (Government Response 2000, paras 37-41) and so it would seem that the chance to influence draft statutory instruments will be limited. Accordingly the constitutional watchdog role needs a power greater than the proposed suspensory veto over delegated legislation.

Despite the concern about ensuring that the nations and regions of the United Kingdom should be well-represented in the second chamber, their proposed number seems not to reflect this importance. The total membership is proposed to be a minimum of 550 and the regional elected members would range from 67 under Model A to 195 under Model C but under C it would take three European parliamentary electoral cycles before that complement would be reached. Initially 65 would be elected.

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Non-legislative functions

The holding to account of the executive is imperfectly achieved in the Commons and not just because of the Labour government's substantial majority. As the recent exchange between the Commons' Liaison Committee and the government in the person of the Leader of the House of Commons, Mrs Beckett, shows, the attempt which the committee made towards shifting the balance between the Commons and its committees and the executive towards the former was robustly seen off by the government (First Report 2000b, Government Reply 200, Second Report 2000b). The committee wanted a panel which could choose the MPs who chair the Select Committee and remove it from the influence of the whips. In their response the government indicated that the Commons committees were producing an ever increasing number of reports and while the government was committed to constructive co-operation there were also other demands upon ministers (Government reply 2000, para 35). This would seem to imply that the government might not be very receptive to Commons-based ministers attending the second chamber to make statements and answer questions and given that the outgoing Speaker of the Commons and opposition MPs are concerned about ministers preferring to go to television and radio studios rather than the Commons to make announcements, then the likelihood of appearances in the Lords seems low even though desirable.

One idea which does seem to stand a good chance of implementation is the scrutiny of treaties, which is a task admirably suited to the second chamber. The proposal came from Lord Lester of Herne Hill (2000), the noted QC with great expertise in, and experience of, human rights here and in Strasbourg. The idea was that second chamber committee could conduct a sift of treaties in order to raise issues of concern. Now there is an argument that treaties are really rather important and the scrutiny of them in Parliament ought to be improved and that the Commons should do it. This point was made by the Chairman of the Defence Committee in evidence to the Procedure Committee investigation in to this topic (Second Report 2000a, Evidence 1 February 2000, Q19). In their report the Procedure Committee decided that it was rather more appropriate for the Wakeham proposal of a second chamber sifting committee to be carried out (Second Report 2000a, para 30). There was not enough in treaties to concern the majority of the Commons departmental committees and the ones which had a greater likelihood of interest and concern, the Foreign Affairs and Defence Committees were coping.

The commission decided against recommending that the consideration of public appointments could be function of the second chamber. It is very likely that the government would agree with this as the experience of the Commons Treasury Committee indicates. This committee wanted to have confirmation hearings conducted by it included in the provisions of the Bank of England Act 1998. They were not and so the committee held them on a non-statutory basis. In their report on two nominees to the Monetary Policy Committee of the Bank of England, the committee called on the Chancellor of the Exchequer not to appoint one of them as they had not been satisfied with his answers to their questions (Seventh Report 2000). The Chancellor of the Exchequer continued with the appointment and as the committee noted he responded two months after their report was published and after Parliament had risen for the summer recess (Seventh Special Report 2000).

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Law Lords

In some ways the recommendations on the Law Lords characterise the pragmatic, `let's make it acceptable' approach of the commission. They advert to the complex and interrelated technical issues which a reorganisation of the highest court would mean and then decide that that there is no reason why the second chamber should not continue to exercise the present judicial functions of the House of Lords. The principle of the separation of powers is not a problem as it has never been strictly applied in the United Kingdom (para 9.5). Besides the function of the second chamber will call for legal expertise and it would be strange to exclude those who posses it. The analysis of questionnaires shows that of those who commented upon the judicial function 47% would maintain it and 37% would reduce it and 16% offered no comments (Wakeham 2000 Appendix, para A6). This was probably not decisive. Evidence that must have carried weight was that of the Law Lords themselves. Lord Slynn pointed out that the commission was not the body to consider whether there ought to be a new Supreme Court and gave some of the relevant technical issues (Slynn 2000). He also stated that there were few occasions with hindsight when one could say that it would have been better for a Law Lord not to have contributed to a debate. All but one of the other current and former Law Lords who submitted evidence on this point also agreed that there was no problem. Only Lord Bingham (2000), then Lord Chief Justice, thought it better for the Appellate Committee to be reconstituted separately from the legislature as a supreme court. He thought that the Human Rights Act 1998, devolution demarcation disputes, and increasing resort to the courts in judicial review and in other civil litigation would mean an increase in high profile cases and a consequent growth in volume and sensitivity which would ensure that the supreme court would be subjected to more intense public scrutiny. As to the contribution which the Law Lords make to the legislative work of the second chamber, he stated that there could be consultation on the text of proposed legislation before its introduction in Parliament, or if it was thought desirable retired Law Lords could be appointed to the second chamber to provide that expertise.

All of the legal academics who submitted evidence, as well as JUSTICE (2000), whose paper was specifically mentioned in the report (para 9.1), argued along the same lines as Lord Bingham. I would submit that the case is unanswerable. I infer that for some members of the commission the separation of powers point was not strong even though they were aware of the then impending decision in McGonnell v United Kingdom (The Times 22 February 2000 and ECHR.net 2000) in Strasbourg, and for others it was overridden by the desire to agree a workable report. Suggesting that the judicial function should be separated would add serious and delaying complication. It is also interesting to note that they think guidance on the Law Lords' interventions in the second chamber can be defined, whereas constitutional issues to which enhanced watchdog powers could be directed, are less susceptible to delineation.

In a comment on the judgment in McGonnell it has been argued that it would be very difficult to meet the requirements of Article 6 on a fair trial if Law Lords spoke but did not vote in a debate, or spoke and voted or just voted; or participated in a committee, or participated in a pre-legislative reference under the Scotland Act 1998, s 33 and the Northern Ireland Act 1998, s 11 where this dealt with a legislative provision whose interpretation is at issue in a case before them (Cornes 2000).

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Conclusion

The argument made here is that political acceptability has been a crucial determinant in the commission's deliberations with the result that there are relatively few important changes from the current arrangements. This is not to deny the significance of separating the honours' aspect of the peerage from membership of the second chamber and the removal of prime ministerial patronage. The commission was certainly apprised of all of the issues, it did receive expert evidence in addition to the research studies it commissioned. Despite saying that comparative studies indicated that there was nothing too helpful to be gleaned from other countries (para 1.4) they did absorb the lessons of territorial voice and avoided a totally appointed second chamber which, as Canada shows, results in a body deprived of any legitimacy so that it cannot exercise its role and powers to proper effect (see Russell 2000a, b, c, d, e and Reidy & Russell 2000).

It is difficult to discern if, as claimed, role, functions and powers dictated composition. Bearing in mind that the reform would have to pass both the House of Commons and the transitional house, it would surely be unthinkable for change to be achieved by using the provisions of the Parliament Acts 1911-49. Accordingly the current Life Peers will carry on. This being so, how much more legitimate would the reformed second chamber be than the old House of Lords? It could be said to be more authoritative, but is that sufficient to justify the granting of stronger powers with which to carry out the function of constitutional guardian? The evolving constitutional settlement is giving rise to more of the features which one might see either in a codified constitution or in the related organic legislation. It is not too difficult to define those constitutional issues on which the second chamber could operate as a brake, leaving them to be determined by the people in a referendum. The devolution legislation was consequent upon approval in referendums and one could argue that changes should be similarly approved. One point which is troubling is the proposal that delegated legislation would no longer be subject to an absolute veto being outside the Parliament Acts. Given the importance which the commission attach to Human Rights, the proposal that the second chamber would be expected to have the expertise to give a detailed scrutiny through a Human Rights Sub-Committee then surely it would be appropriate for the second chamber to veto delegated legislation if it were thought to be deficient?

Again it is suggested that it would delay reform if the judicial function were removed. It is too complacent to assert that there is no reason why the status quo should not continue.

Even if restricted powers justified the proposed composition of the second chamber with its majority of appointed members, there are still some problems. The AC will have a large amount of patronage because of the overly large total membership. I would suggest that appointed Life Members have no greater claim to being spared than the hereditaries. A similar type of compromise to the Weatherill amendment in the House of Lords Act 1999 could allow for a new smaller second chamber. The fine tuning which the AC will have to accomplish in relation to political balance is unnecessary because that is what elections are for. The size is also justified because of the need to bring in people from outside politics and that to have available current expertise means part-time members. The term of office should be such as to confer independence but 15 years is too much. I would suggest 10 years is adequate and that would still allow tying into European Parliament elections to allow for dual voting so as to combat voter fatigue.

The government has indicated that it accepts the broad principles of a majority of appointed and elected regional representation and the statutory independent AC. It has to make up its mind on the powers and the mechanics of election. Lord Wakeham is concerned that the proposals should not be cherry-picked but the best bits of the report are matters which the current house could implement immediately - the constitutional committees and procedural reforms. It is possible that the proportions between elected and appointed members could be 50:50 which is a tolerable compromise, the real battle will be on the powers. The most interesting lesson from abroad is that there is never satisfaction with the second chamber. They are `essentially contested chambers' and there is `an apparently incessant dialogue about how they should be reformed' Mughan & Patterson 1999, p 338) Whatever legislation comes out of the deliberations by the Joint Committee of the Commons and Lords will not be the last word. The time for a new supreme court has come and other constitutional developments will mean further reconsideration of the relationship between the two houses of parliament, and between them and the devolved institutions and the people .

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