Parliament Notes

MODERN BRITISH POLITICS AND GOVERNMENT

PARLIAMENT

‘Reform of the House of Lords can be based on enhanced legitimacy or enhanced expertisebut it cannot be based on both.’ Discuss

Politics and the Constitution - Essays on British Government: V. Bogdanor

- Bagehot called the Lords ‘extremely useful’ as a revising legislature, though not absolutely necessary. The modern Lords can be an aid to democracy by correcting the inherent weaknesses in the Commons, both in principle and in practice¹.

- The democratic government in Britain displays three kinds of weakness:

- The lower house may need complementing by an upper house which uses a different principle of representation.

- Party strength and FPTP means that governments with only minority national support can force radical changes that the majority oppose.

- Even a government with majority support may infringe the rights of the minority.

- An empowered upper house may be a way of resolving these problems.

- Upper houses have two main functions – revising legislation and constitutional protection. To be effective at the former it needs the power to require the lower house to reconsider legislation, although not to subvert or totally destroy legislation. Is suspensory rather than veto power sufficient? It may be argued that an upper house needs greater power if it is to offer constitutional protection.

- The Parliament Acts did not curtail Lord’s power over delegated legislation, which still requires its approval; yet, it rarely rejects such Bills. Its composition deprives it of authority and there is a difference between constitutional powers and the capacity to use them.

- Increasing legitimacy – elected upper house v. nominated upper house

- Elected – A method of election is required which prevents overlapping functions between the two houses; to preserve the cabinet system the supremacy of the lower house must be assured. An upper house which can reject Bills at will can effectively derail a government. Strong upper houses in the US and Switzerland are based on the principle of separation of powers.

- Nominated – Vocational second chambers require definition of both the interests to be represented and the duration of appointment. Vocational chambers may over-represent producer groups at the expense of consumers, or those in employment at the expense of the unemployed. A vocational chamber will be dominated by party-political appointments, including many politicians formerly of the lower house. The upper house in the UK sits according to party, not vocation.

- Other methods for correcting weaknesses in democratic government:

- A constitutional court with judicial review powers can protect regional interests.

- Referenda provide a source of preventing a minority government imposing itself on the majority.

- A constitutional court may also be best suited to protect minority rights.

- The Lords has proved useful when scrutinising Community legislation.

- Bogdanor cites party politics as the number one reason that it has proven difficult to build a satisfactory upper house in the UK. Political power, currently distributed, prevents the upper house from using even its meagre constitutional powers to full effect. So, if other factors impede good government, an upper house alone cannot provide a remedy².

What are Second Chambers For? Parliamentary Affairs: M. Russell

- Many nations, including the UK, engage in regular debates about the function and complexion of their upper houses.

- What are the features of second chambers?

- An upper house can represent a different set of interests to the lower house – by not being popularly elected the upper house can provide a measure of protection against a minority-supported government’s legislative radicalism. Beyond the UK, upper chamber members usually represent territorial regions (e.g. senators in the US) and this helps protect regional interests; upper houses in Germany are required to vote in territorial blocks, usurping some of the strength of parties³.

- They can maintain a more independent view than party-dominated lower houses – they have limited powers over legislation, and cannot introduce it at all, but they can prove a significant check on the executive. Members of a party grouping in the Lords are free to act independently, because the failure of a government Bill in the Lords is not a matter of confidence, nor are the positions of Lords dependent upon election or patronage. This independence gives them that capability of scrutinising legislation more thoroughly than labile, party-controlled MPs⁴.

- They can be a legislative veto player if granted strong formal powers – Veto – even delay alone – can ensure that a broader consensus is on policy is reached than might otherwise be achieved. The government may choose between amendment and delay.

- They can share the burden of parliamentary work in a manner which is complementary to the lower house – The different ethos of the chambers allows a division of labour, and the diverse powers found in many upper houses are complimentary to their elected lower equivalents. Certain topics of discussion are more difficult for the highly politicised lower chambers to discuss.

- Second chambers serve principally as scrutinisers of lower chamber output, highlighting and amending legislation even if unable to veto it. The UK government, even after Blair’s Lords reforms, still finds legislative delay or amendment by the Lords to be unacceptable. An effective second chamber must be able to stand up to public scrutiny before it can stand up to the executive; it must have reasonable strong powers; sufficient resources to act effectively.

- The existence of a second chamber may reduce the tumult of the electoral cycle, increasing stability and continuity in government.

Labour and the House of Lords – A Case Study in Constitutional Reform: D. Shell

- In the past the Lords has caused difficulty for Labour governments, and this has engendered a measure of...

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