OPTIONS PAPER: THE CREATION OF A SENATE

The democratic crisis in the UK has resulted in key institutions losing credibility and respect. The House of Lords is one such institution and reform is urgently needed - the problem is that there is little consensus on its purpose or composition.

Our purpose is not to rehearse the evident problems but to suggest solutions.

This is the third paper published by the Commission on Political Power examining areas of concern in our constitutional structures. For this paper we held evidence-gathering meetings with expert academics and politicians from across the parties and secured public engagement to put together some ideas for what a second chamber could look like. We present options arising from our discourse of which some are mutually exclusive and others are complementary.

The need for reform of the House of Lords is supported by public polling and it is clear, for many reasons, that maintaining the status quo is not an option for the foreseeable future. 

In 1999 the last Labour government removed the automatic rights of hereditary peers to sit and vote in the House of Lords, resulting in a significant reduction in numbers. Since that time many incremental changes have been introduced including the right to retire and the establishment of a conduct committee. 

The Labour Party is again considering reform based on the recommendations of a review by former Labour prime minister Gordon Brown and has announced that a future Labour government would abolish the House of Lords and replace it with a directly elected chamber.

Although calls for reform of the House of Lords have been long-standing, political events in recent years have served to decrease trust in politicians and led to renewed scrutiny of corrupting influences, cronyism and the unchecked powers of a dominant executive. A continuing debate about its anachronistic position in a 21st century democracy has resulted in taking on a greater urgency. Recent issues around the ethics and standards of some politicians have increased the feeling among many that Britain’s political system is not working.

While some propose wholesale reform of the House of Lords, others believe historical precedent suggests change can be best achieved by focusing on the most glaring anomalies in the current system, such as the prime minister’s power of patronage and the size of the House of Lords.

However, it is generally acknowledged, most notably by the peers currently sitting in the chamber, that something needs to be done. 

The main driver of calls for reform is the undemocratic nature of the unelected second chamber and related questions of its legitimacy within Britain’s political system. There is a strong sense that its aristocratic ethos, in particular the by-election of hereditary peers, is hard to defend in principle.

Concerns have been raised, especially recently, about an appointments system controlled heavily by the prime minister and open to exploitation – leading to accusations of cronyism and the House of Lords being used by the executive of the day to curry favour with individuals, including supporters and party donors. Other problems include the number of ineffectual and inactive peers.

Some of the key questions underpinning the Commission on Political Power’s approach have been: what is, and should be, the role of the second chamber? What is both desirable and achievable in terms of what reforms to propose? Should the chamber be more, or less, party political? How can changes address concerns around how its members are elected, as well as what it does? And how can the democratic mandate of the chamber be increased, while maintaining its delicate balance, within the UK constitution, in relation to the House of Commons? Does direct election, either through the constituency system as for MPs or via a system of proportional representation, provide improved democratic accountability or are other mechanisms that include indirect election or selection preferable?

There is a considerable body of literature around reform of Parliament and our aim is to be constructive in adding our ideas on the creation of a democratically efficient and functioning second chamber. We start with the view that a bi-cameral Parliament is required in a complicated democracy including devolved nations.

1 The Senate

Changing the name to the Senate immediately conveys the message that the second chamber is a legislative body and not a club or sinecure. 

Senators would be legislators and should have a job description, as we have recommended for ministers and MPs.

2 Purpose  

The purpose of the Senate should be to uphold and protect the constitution of the UK and the rights of citizens; to hold the government to account; to review, scrutinise and improve legislation, and to provide expertise and wisdom. 

The Senate should compliment, not conflict with, or duplicate, the work of the House of Commons.

The Senate should conduct detailed scrutiny of all legislation, a function that the Commons does not have the time to undertake. This role of scrutiny should be recognised and regarded as an essential part of the legislative process.

The authority of the Senate to conduct pre-legislative and post-legislative impact scrutiny should be both systematic and enhanced. 

3 Composition

There is some pressure to make the second chamber fully elected, although there is no consensus as to which electoral system should be used. This would result in a second chamber composed entirely of political parties and professional politicians, possibly replicating the party composition of the Commons. As was pointed out to the Commission, election does not necessarily confer wisdom and democratic legitimacy is not necessarily conferred by direct election alone.

It is possible to achieve representative democracy without direct elections. The desire to secure better regional representation could be achieved, for example, by instituting a rotation system of elected mayors and council leaders, who would bring much needed local knowledge and experience. The mayors of major cities could sit permanently, with the power to delegate to deputies, and local councils could be represented in rotation.

Functional constituencies are an electoral device that would bring expertise to the Senate and retain the best elements of the current House of Lords. People from the educational, trades union, vocational and scientific communities, for example, could be elected by their constituencies. A system such as this would maintain the valuable up to date contribution of a wide range of professionals and other disciplines and sectors.

Senators should be domiciled in the UK and pay UK tax and will be required to undergo a propriety check.

4 Appointments

If the Senate is to be partially or wholly unelected directly, its composition must be perceived as legitimate. The power of the prime minister of the day to appoint cronies, supporters and donors cannot be maintained.

The independent appointments commission must be strengthened and placed on a statutory footing and be seen to be independent of the executive.

Ways in which its work could be made more robust have been considered by the Conservative peer, Lord Norton of Louth, in his Lords (Peerage Nominations) Bill, introduced to the chamber in 2022 to widespread support by peers.

The principal criterion would be for all individuals to show “conspicuous merit” and a willingness and capacity to contribute to the work of the Senate.

Members of the public should be encouraged to apply to become members of the Senate so that it is more broadly representative.

5 Size

Only around 400 peers regularly attend and perform the bulk of the work of the House of Lords and this takes into account part-time attendees in a full-time legislative chamber. The number of Senators could be broadly commensurate with the number of MPs in the House of Commons but certainly no larger.

If the Senate is to include people elected from professions and jobs they may continue to work part-time and contribute to the Senate part-time, bringing current experience and expertise to the legislative process.

6 Hereditary Peers

The 1999 Labour government allowed a rump of 92 hereditary peers to have a seat in the House of Lords. The by-elections to replenish their number should be abolished. The current hereditary peers could apply to the independent appointments commission to remain in the Senate.

7 Bishops

Whilst it is generally recognised that the Church of England bishops play a constructive and valued part in the work of the Lords, their presence is anomalous as representatives of the established religion. Change would require primary legislation and it is suggested that the enhanced appointments commission should take into account the balance of faith representation.

8 Term Limits

Term limits should be introduced to ensure more regular refreshment of the Senate and to avoid ‘jobs for life’. However, the term should be long enough for people to gain expertise in the complex and demanding job as legislators.

9 Support for Members

Senators would need to be appropriately remunerated if they are to work full time or be compensated for their part time secondment. They would need staff and other appropriate resources.

10 Innovation and democracy

We have looked at a reformed second chamber but there are other new ideas for what our democracy could look like and how it could be enhanced. Governance does not necessarily have to be exclusively by parliamentary chambers. We will look at wider democracy and new ideas in our next paper.

Notes

The Commission launched the inquiry with a discussion led by Baroness D’Souza. We held evidence sessions with Sarah Sackman who was a Commissioner in Gordon Brown’s review; Lord Philip Norton, Conservative peer and professor of Government at Hull University; Professor Meg Russell, Director of the Constitution Unit at UCL; and James Robertson from the Sortition Foundation. The Commission invited submissions from the public and institutions and published a synopsis of the many thoughtful submissions. The Commission held several meetings to discuss the evidence and to share our own ideas and expertise. Notes from these meetings have been published on our website and should be taken in conjunction with this paper. This paper does not reiterate the evidence but builds on the ideas and presents a distillation of suggestions for reform, including discussions held over the past year with leading thinkers and experts on a range of constitutional issues. We have deliberately kept the paper very concise as there is a wealth of academic and political publications setting out the case for reform. Our purpose is to suggest how things could be better; a direction of travel, not a complete route-map.

2023