Why we must retain the House of Lords

Peers gather before the State Opening of Parliament.

Britain’s House of Lords has arguably never received so many calls for its abolition. At the time of writing, a petition calling for a referendum on its abolition has almost 164,000 signatures. The Conservative party, once a bastion of support for the upper chamber (primary due to it serving their interests), have now been linked to a call for its obliteration.

Jacob Rees-Mogg and Peter Bone, two prominent Tory Brexiteers, have been amongst those espousing and promulgating an anti-Lords stance. The arguments have primarily been engendered as a direct retaliation to the changes the Lords have proposed to the EU Withdrawal Bill. Alongside the petition, created by Robert McBride, there has been increasing public frustration over the Lords, with a plethora of wearisome platitudes declaring peers to be ‘set[ting] themselves against the people’.

The calls for abolition, particularly from the electorate, are misguided at best and ignorant at worse. Although the Lord’s decisions may currently go against the grain of those who chose to vote for Brexit and wish for the ‘will of the people’ to be upheld, this entirely disregards the fundamental reason for its existence in its current form. An oft-neglected, yet indispensable aspect of its existence is the check they offer to executive power and discretion.

The separation of powers within the UK do not fit the purist form laid out by the likes of Aristotle, Locke, and Montesquieu. Instead, there are key elements of overlap. Rather than acting to enkindle tyranny – which is what Montesquieu believed a separation of powers would help prevent – the constitutional status of the UK, though complicated and to some extent precarious, can offer good governance if checks and balances are equally distributed across all three branches.

Pursuant to the Constitutional Reform Act 2005, the Lord Chancellor no longer serves as the head of the judiciary. Nor, do the Law Lords sit within the House of Lords as they did prior to the establishment of the Supreme Court in 2009. These measures acted as explicit indications of judicial independence. Overlap with either of the two branches would almost certainly result in an unequal distribution of power, contrary to the preservation of citizens’ liberties.

Despite these piecemeal measures, the most significant overlap between branches occurs in the Commons, where the executive not only sit, but act as the legislative autocrats, in a primary position to generate any legislation they so desire.

Do not be fooled by the perceived current weakness of the Tory government. Indeed, we are living in a period alarmingly synonymous to what Lord Hailsham, Britain’s longest serving Lord Chancellor, referred to as an ‘elective dictatorship’. The government have the added bonus of political patronage and a government whip to ensure the rest of theirs MPs, the non-executive members, comply with the legislative agenda of the executive. Without any accountability, we would indeed be living under a dictatorial democracy, a one-party state elected to push out their very own five-year plans.

Fortunately, there are checks. General and select committees scrutinise the legislation proposed, not only of Public Bills, but of Private Bills, and Private-Member Bills. Debates, PMQs, the Parliamentary Ombudsman all offer checks to attempt to balance powers and prevent unlawful discretion being exercised by the government. Moreover, the judiciary also feature heavily in holding the government to account. The decision in Miller,[1]though unpopular with leave-voters, was necessitous to prevent the arbitrary exercising of the Royal Prerogative.

The importance of the upper chamber, particularly during an era of prime-ministerial government, has never been greater

The implementation of the Human Rights Act 1998 has allowed for the Courts to declare legislation incompatible with the European Convention on Human Rights. This was a much needed step forward. In Miranda v Home Secretary,[2]Leveson LJ deemed the wide definition of ‘terrorist’ to be too broad, which could culminate in arbitrary exercising of power by the executive, thereby deeming it incompatible with the Convention, and forcing a change of legislation.In Jackson,[3]the obiter dictafrom the judges was that the rule of law could, in certain circumstances, supersede Parliamentary sovereignty, in direct conflict with the traditional Diceyan theory of the two principles. Judicial review, since the GCHQ[4]case, has taken on a much broader remit, and acts again to ensure that delegated powers by ministers are not enacted ultra vires.

The House of Lords sits alongside these other methods of accountability and must continue to do so. The importance of the upper chamber, particularly during an era of prime-ministerial government, has never been greater. Whilst criticism of the Lords as an anachronism is sometimes justified and frustration over the unelected status of peers is somewhat understandable, they are, nevertheless, an integral part of the legislative branch of government.

In a bicameral system, whereby the lower chamber can too easily be manipulated to serve the will of the executive with little accountability, the Lords is often regarded as the last line of defence. Concerns around the unelected status of peers should, in part, be quelled by the simple but fundamental fact that they cannot legislate. The Parliament Acts 1911 and 1949 firstly annulled their ability to ‘block’ legislation, substituting it with the ability to amend; secondly they limited the time the Lords could delay by up to a year. For monetary bills, they cannot delay whatsoever, prevented through constitutional convention. These measures limit the power of the Lords enormously, thus their ability to suggest amendments is only a fragment of the power they once had.

Suppose in 2022, Corbyn wins with a majority of 179, the same majority that Blair won in 1997. Having been decimated at the polls, there would be no effective opposition to challenge the policies, legislative proposals, and agenda of Corbyn’s government. Let us also suppose, that as a result of rash, popular consensus, Parliament in 2018 passed legislation abolishing the House of Lords. With so large a majority, even if there was mass dissent from 178 of his own MPs, the majority would still be retained and such legislation would be passed through the Commons.

To abolish the Lords entirely, would be to remove an institution that almost exclusively serves the interests of the British people

With no upper chamber, there would be no checks on the legislation. The executive branch would wield enormous powers, as the monarch of the day, due to constitutional convention, yields to provide the Royal Assent. The executive would dictate the outcome of the country for at least the next five years, with only minute accountability advanced by the legislative branch.

Make no mistake, the upper chamber is full of flaws. But these flaws are not fatal and certainly do not warrant a hasty and irrational abolition. Reform is the most pragmatic of options, by removing the remaining hereditary peers, formally limiting its size, and purging the Lords Spiritual who should not be permitted to sit in the chamber. These would be preliminary methods of reform to ensure a smoother operation occurred within the House of Lords. To abolish the Lords entirely, would be to remove an institution that almost exclusively serves the interests of the British people. Indeed, the despondent irony of abolition is that it would work against the very people the Lords are appointed to protect.

 

[1]R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5

[2]Miranda v Home Secretary[2016] EWCA Civ 6

[3]R (Jackson) v Attorney General[2005] UKHL 56

[4]Council for Civil Service Unions v Minister for the Civil Service[1985] 1 AC 374, [1985] ICR 14, [1984] 3 All ER 935, [1983] UKHL 6, [1984] 3 WLR 1174, [1985] IRLR 28, [1984] UKHL 9, [1984] UKHL 9, [1985] AC 374