Unfinished Business: Routes to an Elected Second Chamber

Posted 10 Dec 2023

Thanks

Acknowledgements

I would like to thank my colleagues Ian Simpson and Thea Ridley-Castle for their help editing the report.

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Introduction

Why reform the Lords?

House of Lords reform has been unfinished business now for well over a century. The 1911 Parliament Act preamble notes that the upper chamber remains a temporary arrangement until it can be ‘constituted on a popular instead of hereditary basis’. Whilst there have been minor reforms since, stage two of the 1999 reforms (which removed the majority of hereditary peers) has yet to materialise nearly two and a half decades on. Meanwhile we continue to have a parliament in which our elected representatives are outnumbered by our unelected ones and voters have no say over who enters the Lords, or leaves.

Countless parliamentary hours have been spent debating, reviewing and voting on reform of the Lords over the last twenty-five years. And what is striking about the proposals, is the many areas of agreement across the draft papers, bills and committee recommendations. Consensus on issues such as Commons primacy, independence, on scrutiny, electoral arrangements and reducing the size. Not only are there many areas of agreement on reform, including amongst peers themselves, there is also cross-party support for change. And for all the stumbling blocks of reform in the past, it remains the case that reforming the second chamber is far easier in the UK than in other countries. With no written constitution and no specific requirements in the UK; no higher bar to reach in order to legislate for change. Whilst it may be better to have these protections (an issue this report will examine), currently they do not present a barrier to reform.

House of Lords reform would be strongly supported by the British public who have no faith in the current arrangements. Our recent polling finds that an elected Lords is the most popular option with half of the public (47%) saying that they should have the power to choose the members of the House of Lords via elections. Only 15% think the Prime Minister should choose.1ERS polling by Savanta. 2,283 UK adults aged 18+ between the 24th and 27th November 2023. Data were weighted to be representative of the UK by age, gender, region and social grade.

Patronage is not only out of date but being abused before the eyes of the public, bringing not just the Lords but the whole of Parliament into disrepute. Recent polling finds that only seven percent of people think that Lords should be appointed and just two percent have ‘a lot of confidence’ in the House of Lords. Given the growing public distrust and scepticism about the status quo, inaction isn’t an option.

This report reviews the options for Lords reform starting from which roles the upper chamber should perform and what powers would therefore be appropriate. Drawing on examples from around the world, it considers what composition might suit that role and what methods of election could be used. The report concludes with analysis of how a reformed Lords would relate to the Commons and a review of previous reform proposals.

Parliament’s Joint Committee on House of Lords reform concluded in 2003 that, ‘Parliament – and especially the democratically elected Commons which is supreme – must now assert itself against the unworthy coalition of those who would not reform the House of Lords at all. History will not look kindly upon our efforts if we fail that test of our resolve. Rather, we will appear willing players in a pathetic Parliamentary farce. That is an outcome we must do everything in our power to avoid.’

This report provides a range of options for completing the reform and finally bringing our parliament into the 21st Century.

A functional approach to reform

Role and powers

In debates on House of Lords reform, the role and rationale for the second chamber is often defined according to its existing activities rather than from the starting point of what roles and powers would be required for a healthy parliamentary democracy. In a similar vein, the evaluation of how well the second chamber functions is often defined entirely in terms of what it is already doing. This approach, whilst being sensitive to the current strengths of the second chamber, tends to overlook that which could be expanded or improved, and indeed what might be improved about Parliament overall, including in the Commons.

Typically, second chambers have a role in protecting regional interests and/or protecting the constitution. Whilst previous proposals for reform of the House of Lords have noted these functions, they have stopped short of enhancing the role and powers of the upper house in this way. One notable exception is the recent Commission on the UK’s Future which suggests that a reformed Lords could have a wider role (one which will be explored later in this report).

As well as the specific functions of the second chamber, there is also the question of the authority or strength of the chamber. Considering the House of Lords’ role within Parliament overall draws attention to the powers of the executive as well as the relationship between Westminster and devolved parliaments. The combination of a strong executive and majoritarian electoral system in our system gives governments at Westminster a particularly powerful hand – often without needing anything close to majority support amongst the electorate. In this system, the role of Parliament in providing a check on government, and the relationships between Westminster and our devolved parliaments, are particularly important considerations.2The Public Administration committee fifth report The Second Chamber: Continuing the Reform (2002) cites this as the primary reason for reform “For us it is about strengthening Parliament as a whole in relation to an executive that is uniquely powerful in the British system. Strong government requires strong accountability, and an effective second chamber (along with a reformed Commons) has an important role to play in this”

A new role for the Lords

A stronger chamber

It is largely accepted that the UK Parliament should continue to have a second chamber. Whilst there is some support for abolishing the House of Lords entirely (28% of respondents supported abolition when we asked the question in 2020), a unicameral parliament for a country the size of the UK with devolved legislatures would be highly unusual and, particularly given the majoritarian nature of the Commons, lacking the necessarily levels of scrutiny.

Whilst countries such as Sweden, New Zealand and Portugal sit amongst the 112 unicameral parliaments worldwide, bicameral structures are more common in larger countries, and especially in federal ones. There are currently 78 bicameral parliaments globally according to the IPU, and their second chambers provide a range of functions including representing sub-national governments, providing expert scrutiny, acting as a check on the power of the primary house, protecting the constitution and representing specific interests or minority groups. They can of course, and often do, combine a range of these functions.

Strengthening or extending the powers or functions of the House of Lords could move the Westminster Parliament further towards a more fully bicameral system but there appears to be little support for full and equal bicameralism (as in the USA) which is arguably as much of a change to the system as abolition. At present, whilst the Lords’ formal powers are relatively strong, the reluctance to use them means that the current arrangements tend towards weak bicameralism, and this affects the power of Parliament as a whole, in relation to the executive. However, the strength of bicameral arrangements is not defined entirely by the balance of formal powers; composition and perceived legitimacy also have a role to play.

Power, composition, and legitimacy

In understanding bicameral strength, analysts typically focus on two dimensions – the relative formal powers of the chambers and the composition of the chambers.3Defined by Lijphart (‘Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries’ (1984)) in relation to consensus and majoritarian democracies by the dimensions of ‘symmetry’ (which describes the extent of formal powers from full symmetry where both houses must agree, to full asymmetry where one house has decision making power) and ‘congruence’ (similarity in composition). In terms of composition, chambers can be more or less alike depending on the differences between their systems of selection and representation (whether they represent territories for example) and/or the difference in partisan balance. Incongruence between chambers is a feature of strong bicameralism. Typically a territorially-based second chamber would create greater incongruence and therefore stronger bicameralism, but should both chambers be dominated by the same party this would weaken it.

Prior to the 1999 reforms, the House of Lords was considered an example of weak bicameralism because, despite relatively strong delaying powers, a lack of legitimacy meant it was reluctant to use its powers. This was combined with incongruence in composition in terms of selection (having one chamber exclusively appointed and largely hereditary) but could be congruent in terms of party balance (the second chamber being largely dominated by one party).

Whilst reforms removing the majority of hereditary peers and an increase in life peers over time have changed the composition of the chamber, in terms of party balance if not in terms of selection, a lack of democratic legitimacy means that the Lords’ full powers are still rarely employed. The upper chamber has only employed the suspensory veto four times since 1949.4the War Crimes Act 1991; the European Parliamentary Elections Act 1999; the Sexual Offences (Amendment) Act 2000; and the Hunting Act 2004.

The strength of the second chamber is therefore not only defined by its formal powers and composition but by its perceived legitimacy. Russell argues that after the 1999 reforms, the Lords became more assertive in challenging government (derived from an increase in input and output legitimacy)5Russell (‘Rethinking Bicameral Strength: A Three-Dimensional Approach’, Journal of Legislative Studies, 370-391, 2013) defines three types of legitimacy in relation to the second chamber. The first, input legitimacy, comes from composition, this could be democratic legitimacy conferred by election or could be derived from being representative of specific groups or interests, or it could come from specific expertise. A second form is procedural legitimacy, the way in which the chamber conducts its work may confer procedural legitimacy because it is seen as more fair or competent. And finally, output legitimacy, derived from the popularity of its interventions.  and argues that strong formal powers are not the only consideration; a chamber perceived as legitimate may not need to employ its full powers in order to push back against the executive. Legitimacy therefore must be considered both in the eyes of the public and political actors, particularly the Executive.

Whether the executive sees the second chamber as legitimate (and the public perception that may encourage that view) is crucial therefore in whether the government does indeed ‘think again’ about legislation when the Lords challenges it. Whilst there has been an increase in government defeats in the Lords, defeats don’t always stick; in fact, they are frequently overturned in the Commons.

Peers, despite being unelected, also serve in government, often in more junior ministerial posts but sometimes in Cabinet too. The Prime Minister recently pushed this even further, appointing Ex-PM David Cameron to the Lords in order for him to serve as Foreign Secretary. There are at present twenty-two peers serving as government ministers (not including leader and deputy leader of the house or whips) and this includes three hereditary peers currently in posts overseeing areas such as maternity benefits and AI. Whilst the Lords’ perception of their lack of legitimacy, particularly from the hereditary element, may hold the Chamber back from insisting on legislative changes, the need to have government presence in the Lords means that unelected members serve in government without any accountability to the public.

The composition of the lower chamber can also have implications for the powers of the second chamber. Weak bicameralism is associated with majoritarian systems but where the executive has significant power, the need for effective scrutiny is even greater. As the Wakeham Commission in 2000 noted:

“Given the Government’s enormous power in our system, it seems to us important to have a second chamber able and willing to complement the House of Commons in its essential work of scrutinising the executive and holding the Government to account. …This need is reinforced by the fact that Governments in the United Kingdom are normally one-party Governments, backed by absolute majorities in the House of Commons.”

Constitutional protection

Constitutional protection is one of the classic functions of second chambers in bicameral parliaments. Constitutional legislation may be subject to additional vetoes, delaying powers or qualified majorities in the second chamber, and in some cases second chambers can refer the issue to a referendum. These constitutional safeguards are not limited to bills that affect the constitution but extend to ensuring that ordinary legislation is compatible with the constitution.

Many parliaments require a qualified majority to pass constitutional change. In France, the Czech Republic, Germany, Romania and Spain a two-thirds or three-fifths majority is required in both houses. In Italy and Spain, failure to get an appropriate majority in both houses can require a referendum. In some cases a joint session is required.

Constitutional protection is not entirely alien to the House of Lords either. The upper chamber has some slim constitutional protection powers already in that it can veto legislation extending the length of a parliament. In addition, the Constitution Committee, recommended by the Wakeham Commission, currently examines the constitutional implications of public bills. However, the UK Parliament has no special procedures for passing constitutional legislation which means that any constitutional Act can be repealed by ordinary legislation passed by a simple majority through the normal parliamentary process. Recently the Bill of Rights Bill 2022 sought to repeal and replace the Human Rights Act 1998 with ordinary legislation. Even devolution settlements, whilst unlikely to be reversed, would need only a bill passed by a simple majority in the Commons. This leaves the UK’s constitutional framework at the whim of any government that achieves a majority from a plurality of votes (and with the electoral system used for the Commons, these pluralities can be small).

Whilst countries in which the second chamber safeguards the constitution do usually have written constitutions, there exists a constitutional framework in the UK contained in a range of legislation – from the Parliament Acts themselves to the Human Rights Act (as yet not replaced by the Bill of Rights legislation) and Constitutional Reform Act 2005 which established the Supreme Court. For the House of Lords to have additional protections over these statutes would require a specific process for both identifying which bills are constitutional and dealing with disagreement over that certification, but this need not be an impediment to giving the Lords this power.

A range of suggestions have been made for how to identify legislation which would be subject to additional constitutional protection. One option is for the Speaker to certify constitutional legislation as already occurs with money bills. Should a dispute occur, there could be a process for consulting another body. For instance, Labour’s Commission on the UK’s Future suggests that a reformed House of Lords with constitutional powers should consult the Supreme Court as to whether a bill would engage its constitutional protection powers.

The weakness of our constitutional arrangements suggests there is an important role in Parliament for a stronger second chamber. As Gladstone wrote, the British constitution “presumes, more boldly than any other, the good faith of those who work it”. Should the British public feel, a century later, that good faith may not be enough, reform of the upper chamber potentially provides the answer.

Territorial representation

Bicameral parliaments are common to federal nations in which the second chamber’s primary role is to represent territorial interests. Links to constituent regions or territories are often created through indirect election with members elected from amongst the membership of regional legislatures and these chambers often have specific powers over legislation that directly affects sub-national government.

For both elected and appointed territorial chambers, the system of representation can afford each state equal representation, regardless of size, or vary the number of representatives depending on population. The former can give greater voice to less populous areas (potentially protecting minority groups) but maintains the principle of each state being equal in the federation. The latter follows the democratic principle of representing people equally, but can diminish the voice of smaller, less populous states.

In Australia and the US (both territorially based, directly elected upper chambers), each state has the same number of senators regardless of population size. In the US this has proved controversial as less populous states have become over-represented within a very powerful upper chamber. This coupled with the highly majoritarian two-party system means that a smaller voice is allowed to become dominant. In Australia the dynamic is different, with smaller parties holding the balance of power in an upper house elected by PR and with greater asymmetry in powers.

In Canada, where senators are directly appointed, each province and territory is allowed a specific number of senators with smaller territories over-represented and larger ones under-represented according to population size. The Canadian Senate has a specific arrangement to ensure that senators from Quebec are fairly represented from both French- and English-speaking areas. Similarly, the Indian Council of States allocates a fixed number of seats per state with smaller states slightly over-represented in population terms. Senators are indirectly elected by the legislatures of the states and union territories.

In Belgium, senators (selected by a mixture of co-option and indirect election since 2014) represent both territorial and linguistic communities with most senators appointed from the sub-national parliaments. In this way territories are represented whilst protecting minority regions and communities.

The German Bundesrat combines both approaches. Comprised of 69 members drawn from the governments of the 16 Länder (states), each state has between three and six members depending on population size (those members are selected from the elected members of the state governments who act as delegates of that state rather than independent members). In this way the Bundesrat meets the federal principle of representing the states equally whilst connecting voting ‘weight’ to population size.

Whilst territorial representation is a primary function of upper chambers in federal states, upper chambers can also reflect regions and communities in their structure, providing a voice for sub-national interests in non-federalised states. The senates of Spain, Italy and France all create linkages to regional and local government within their structures, despite regional autonomy developing after their establishment (how election contributes to creating linkages in these countries is explored below).

There are therefore a number of ways of representing territorial interests within an upper chamber and balancing this with the needs of different territories. Systems of election (direct or indirect) and appointment can represent the governments of those territories, their parliaments or people directly, and can be linked primarily to the territories, the population or a compromise between both. With Commons constituency boundaries now drawn according to population density (albeit a flawed measure due to being drawn from incomplete electoral rolls), an upper chamber with a specific territorial function could be based on a different rationale for representation than population size. This could add to the incongruence between the two chambers, desirable for strengthening arrangements.

As well as the question of numerical representation within territorially based chambers, there is also the question of powers. A territorially based upper chamber might have specific powers over legislation that affects states or regions. The German Bundesrat, for instance, has veto power over legislation that affects the jurisdiction of the states. State governments are often formed of coalitions of parties but their delegates cast their votes as one bloc. If the parties can’t agree on a position, they abstain from the vote (if delegates cast different votes within the bloc, the whole vote is invalid). In Belgium, the Senate has power to settle disputes between the federal parliament and the parliaments of the regions and communities.

In addition to formal powers and structures of representation, territorial upper chambers can also provide a link to sub-national parliaments and governments through their procedures. Second chambers may create linkages through debates and committees, may have the ability to initiate legislation relating to territorial units, or be accountable to territories by reporting to them. In Spain, the largest committee in the Senate is the General Commission of the Autonomous Communities (the 17 sub-national levels of government), a permanent committee which, amongst its very broad competencies, scrutinises legislation from a territorial perspective and debates territorial issues. Any senator elected from the autonomous communities can request to attend and speak, even if they are not a member, as can any member of the autonomous community governments.

The delegation system of the German Bundesrat provides a more direct link to states because members of the upper house are members of the Länder cabinets, who are themselves directly answerable to the Länder assemblies, but cooperation between states and the federal government is also promoted through meetings and other mechanisms. There are regular conferences and meetings between state ministers, officials and party representatives and their federal counterparts. The Bundesrat is the site of final decision, but much work takes place in committees rather than plenary. For senators with dual mandates, ensuring that time is spent productively is clearly necessary.

Problems with intergovernmental relations in the UK have been highlighted most clearly during the Brexit process, leading at the extreme end to breaches of the Sewel convention. There is clearly a need for greater intergovernmental linkage and a reformed second chamber could serve such a purpose. As discussed above, it is common for a second chamber to provide that linkage. A reformed second chamber therefore could act as a forum where UK-wide and cross-border issues are discussed, where sub-national interests and concerns can be raised. This can be designed into the composition of the chamber and its powers, but it could also be created through the procedures of the chamber.

Whilst direct election can mean less direct connection to sub-national levels of government, indirect election can raise the issue of dual mandates which may not be feasible if the volume of scrutiny work expected from members is very high. Creating channels and processes for intergovernmental working can however ensure that the upper chamber protects the interests of devolved nations and regions if members do not have a direct connection to those legislatures. In the case of indirect election, these processes can ensure that work is streamlined for members if they do hold a dual mandate.

Accountability mechanisms could be established in the procedures of a reformed second chamber outside of indirect election of devolved parliament members. Members of an elected second chamber could be granted the right to speak in the devolved legislature for their area, and conversely, members of the sub-national legislature could be given the right to question members of the second chamber and address the second chamber directly. Committees focused specifically on territorial interest could provide a strong voice within a reformed upper chamber. Labour’s Commission on the UK’s Future recommends creating linkages by allowing elected national and regional leaders to participate in the second chamber and that a reformed upper house would also oversee the work of new intergovernmental Councils (A Council of the regions and Nations, A Council of the UK, A Council of England) through hearings and committees. Creating more formal channels like these is key to ensuring good linkage but any enhanced process for better intergovernmental linkage would also require serious reform of the House of Lords to ensure that the composition of the House fairly reflected the nations and regions of the UK.

With devolution developing, particularly in the regions of England, it might also be necessary to consider how a reformed chamber with a territorial basis could accommodate future changes. Comparative examples show that upper chambers can develop to give seats to territories as those communities develop. Thinking beyond just composition to the procedures of a reformed upper chamber can help achieve genuine linkages between sub-national government.

SUMMARY: A stronger second chamber

Legitimacy – legitimacy plays an important role alongside powers and composition in determining the strength of the upper chamber. Whilst a perceived lack of legitimacy restrains the Lords, an effective second chamber is essential for accountability within a majoritarian system with a strong executive.

Constitutional protection – A reformed House of Lords could be given a greater role in constitutional protection, expanding its current veto on extending the length of parliament and the work of the Constitution Committee. This is a common role for upper chambers.

Territorial considerations – There is a strong case for building in a stronger voice for the nations and regions of the UK within a reformed second chamber. This could be achieved through election to the chamber, direct or indirect, and secured through the intergovernmental processes of a reformed chamber.

Basis of representation – with House of Commons constituencies now drawn according to population, a reformed upper chamber could consider a different principle for representation for instance, by putting the emphasis on regional representation. This could add to the difference between the two chambers.

The components of a reformed chamber

Composition and powers

Composition and powers should be appropriate to a chamber’s intended purposes. As noted earlier, second chambers can serve a range of roles from scrutiny to various forms of representation and these functions will also shape a chamber’s composition and powers. For instance, if a chamber primarily represents territorial interests, a link to sub-national governments or parliaments will be needed and there may be a need for veto powers over issues affecting those territories. If a chamber is primarily aimed at providing a democratic check, then electoral accountability would be appropriate and powers to veto legislation. A purely scrutinising chamber would have fewer powers over legislation but also would need to ensure greater independence from partisan concerns.

Composition also has implications for legitimacy, as noted earlier. Legitimacy might be conferred by direct election or greater representativeness of particular groups or interests, or by providing a wider range of expertise.

A chamber that needs to serve a range of purposes might adopt a mixed composition.

Composition and elections

Method of selection – election, appointment or both

The majority of second chambers choose their members by election, whether direct or indirect. The IPU categorizes fifty-five second chambers as predominantly chosen by either direct or indirect election (28 and 27 respectively) and only 22 chambers predominantly by appointment.6Germany is categorised as an appointments system by the IPU but the Bundesrat consists of delegates of the governments of the 16 Länder (all states use a form of mixed member proportional representation to elect their members). The UK is highly unusual in sticking with a feudal combination of nobility and church and only the UK and Lesotho mix appointment and hereditary seats without any elected element.

Many second chambers do however combine a mixture of direct and/or indirect election with a small element of appointment. For instance, whilst the Italian Senate is nearly wholly directly elected, there are a handful of life seats that are held by ex-officio members (former Presidents) and up to five citizens appointed by the President for outstanding service. In Ireland, of the sixty members of the Seanad Éireann, forty-three are elected by panels representing different vocations, six are chosen by graduates of the two major universities, and eleven members are nominated by the Taoiseach creating a mix of direct and indirect election with some appointments. In Spain, the Senate combines direct and indirect election based on different territories. The majority of senators are directly elected in multi-member constituencies based on the 51 provinces and around a fifth are appointed by the legislatures of the autonomous communities which are themselves elected by closed list PR.

There are therefore a number of ways of combining different methods of selection to suit a chamber’s functional and representational needs.

Two directly elected chambers

Concerns are often raised about the potential conflict arising from having two directly elected chambers. Directly elected chambers are common but are not always wholly directly elected. Wholly directly elected upper chambers can be found in Australia, Brazil, the Czech Republic, Japan, Mexico, Poland, Switzerland, and the USA and within this group there are significant differences in the electoral systems used which in turn affects their composition.

It is generally agreed that one party should not have a majority in both chambers and because of this, few parliaments with direct election for both chambers choose similar electoral systems for both chambers. Two notable exceptions to this are Italy and the US.7The Italian Senate isn’t categorised as fully directly elected as there are handful of seats reserved for ex-officio members

Italy employs a similar mixed system for both the upper and lower house, with both chambers also electing on the same day. Because of this, whilst there are some differences, party balance tends to be the same in both chambers. The US is the only country to use a majoritarian system for both chambers. Whilst using the same system, the two US chambers have different compositions because of the difference in the size of the constituencies and length of term. However, with party competition forced into a two-party shape due to the nature of the electoral system, the opportunity for gridlock is high. In both Italy and the US, similar electoral systems are also matched by similar powers.

The majority of parliaments with wholly directly elected upper chambers use different electoral systems in their lower chamber. Brazil, the Czech Republic, Poland and Switzerland have PR elected primary chambers and use majoritarian systems for their second chambers. Australia has a majoritarian elected lower house and PR elected upper house. Japan and Mexico use mixed systems for both chambers. Using different electoral systems for each chamber tends to produce different electoral outcomes which are also supported by arrangements such as different term lengths, staggered elections and of course different roles and powers.

For either a wholly or partly elected second chamber, the question remains as to which system of election.

Electoral system

If direct election is chosen, there are many options for the type of electoral system that could be used. Previous suggestions for Lords reform have put forward different options including versions of party lists and STV, but all proposals for an elected House of Lords have opted for a proportional system, recognising the role of PR systems in creating more balanced political chambers and ensuring that the Lords is a chamber where all voices are heard but none dominate.

The electoral systems suggested for the House of Lords over the years have also reflected the priorities for a reformed upper house. Over various reform proposals these priorities have included:

  • A different party balance to the House of Commons
  • Avoiding a single party majority
  • Encouraging diversity in representation
  • More independent/non-party members as well as independently minded members
  • Representation from all regions and nations of the UK
  • Bringing expertise, experience and independence of thought
  • Taking a longer-term view

Some of these priorities can also be achieved through the timings of elections and length of term as discussed below, but choosing the right electoral system is key to achieving many of these goals.

It has also been suggested that elected members of a reformed House of Lords should not challenge the link between MPs and their constituents. Different PR electoral systems can also accommodate this in their design. Whilst many PR systems, like AMS, create a constituency link the same as FPTP, others make that link less direct for instance by having much larger electoral districts (or no districts at all).

It is also largely accepted that to ensure that the two chambers do not mirror each other, it would be unadvisable to use the exact same voting system in both (though there are different versions within systems which could also create differences between the chambers). Two majoritarian systems, like the US, would be unlikely to fulfil the priorities listed above. However, given the range and diversity of PR systems, it is possible to have two distinct but complimentary chambers elected under different PR systems.

Options

STV

The Single Transferable Vote (STV) was recommended in the draft House of Lords Reform Bill 2011 and in the cross-party ‘Breaking the Deadlock’ proposals in 2007. STV is a proportional and preferential electoral system in which voters get to order their choices of candidate. Constituencies are multi-member, returning (usually) around 3 to 5 candidates per district (though districts can also be larger) and voters can put numbers next to as many or as few candidates as they like. Candidates that reach the quota are elected and any votes over and above what they need are redistributed to voters’ second preferences and so on until the places are filled.

The 2011 Draft House of Lords Reform Bill selected STV to ensure that those elected have ‘a personal mandate from the electorate, distinct from that of their party’ and there are a number of reasons why STV would be more likely to achieve the aspirations of a more independent, expert and politically balanced chamber.

STV is a candidate-centred system which means that independents are put on an equal footing with party political candidates. Under STV, votes transfer to the next choice of candidate so voters do not need to worry about wasting their vote or splitting the vote by choosing an independent candidate – if that candidate does not achieve enough votes, their vote will transfer to another choice. Independent candidates with a base of support amongst voters favouring different parties would also be likely to attract transferred votes in this system.

In addition, because it is a candidate-centred system, voters are able to choose between candidates of the same party, putting an emphasis on which party candidate they think would be most suitable and candidates such as community leaders who have a party leaning but would rather stand as independents are able to do so without harming their party’s chances by splitting the vote.

Under STV, many voters choose to split their vote between candidates of different parties (and none). In the Scottish local elections of 2017, between a third and a fifth of voters gave their second preference to a candidate of a different party to their first choice. And, whilst many voters are loyal to their party, when no more candidates are available for their first choice party, only a third of voters stop preferencing candidates at this stage – the majority go on to give lower preferences to candidates of other parties. This opportunity for voters to make more nuanced choices would likely result in a chamber that has a different political character to the Commons.

STV could also help elect a more diverse chamber. Because STV is a multi-member constituency system, it encourages parties to put forward candidates who differ from each other in order to maximise their vote. District magnitude, the number of people being elected in an electoral district, has an impact on the diversity of those elected, so larger STV districts are much more likely to create a more representative chamber without needing additional measures.

Compared to other systems STV would likely go furthest to fulfilling the goals of a more politically diverse and independently minded chamber where voters would be able to select candidates according to their expertise and experience, as well as ensuring representation from across the regions and nations of the UK.

List PR

List PR was recommended for the House of Lords by the Wakeham Commission (options B and C) and the subsequent white paper in 2001. The House of Lords Reform Bill 2012-13 put forward semi-open regional lists. List PR systems can be open, closed or semi-open:

Closed List PREach party publishes a list of candidates for each area and voters mark the party they support. Voters do not get to choose which candidate they want – the seats are filled depending on the order of the list the party chooses in advance.

Open List: Each party has a list of candidates on the ballot. The more votes a candidate gets, the more likely they are to be in the party’s group of MPs that get elected. A vote for a candidate is counted as a vote for their party when it is decided how many seats each party should receive. In some versions of open list PR, voters have the option to just vote for a party and leave the ordering of the candidates up to the other voters.

Semi-Open List: In a semi-open list voters have the option to vote for a candidate or a party. Unlike an open list, voting for a party is taken as an endorsement of the order of candidates chosen by the party though with enough individual votes, candidates can move up the ordering.

There are of course a range of versions of each of these types of List PR.

Regional lists would ensure that every part of the UK has representation in the Lords. And one of the benefits of a list PR system for the House of Lords, which would likely have large electoral districts (previous proposals have suggested mirroring the European election areas), is that it would not replicate the constituency connection of the Commons. This would also be the case with large STV districts.8Smaller STV districts would provide a constituency link.

List PR would also give parties greater control over who is elected to the chamber which would present an opportunity to shape the experience and expertise of members. Parties may wish to choose existing active members of the current House of Lords to put at the top of their lists for instance. However, if the intention is to elect members of the second chamber who are more than just the representatives of their parties, then list systems (particularly closed lists) can present a problem as voters are not given the option of choosing between candidates, and list systems are also unlikely to elect independent candidates. Whilst open lists may provide an answer, closed lists would be unlikely to look very different to the current system of political patronage, albeit one with a more even party balance.

Modelling the options

Previous reports have modelled the options for election to the House of Lords. Most notably the 2008 white paper modelled both an 80% and 100% elected chamber of between 420-450 seats using four different electoral systems: FPTP, AV, STV and List systems. Unsurprisingly the first two options produced results close to those in the Commons with two parties dominant and one party gaining an overall majority on both the 80 and 100% options.

The List modelling showed a greater proportion of seats for other parties and no single party gaining an overall majority but highlighted the problems for independents under this system. Whilst the independent vote could not be factored into the calculations, it was estimated that an independent candidate would need to receive between 150,000 to 200,000 votes to gain a seat in a wholly elected chamber. The STV option, modelled on 24 constituencies electing 6 members at a time, though limited9 Independents were excluded and the modelling did not accommodate split ticket voting. also shows no party gaining an overall majority.

Our report Direct Elections for a reformed Second Chamber in 2004 demonstrated what a 300-seat House of Lords elected by STV in sub-regions could look like. A 300-seat chamber whilst much smaller than the current arrangements is much more in line with upper chambers around the world and provides a more standard ratio of upper to lower house membership. Whilst smaller, it does also ensure that the numbers of members being elected at any one time (given staggered elections) can create a meaningful election for voters and ensure proportionality of result.10A smaller house of 200 or fewer, if elected by halves or thirds, would reduce the proportionality of the results and would likely impact on the diversity of those elected. Districts for a 300-seat chamber could be smaller, electing 3-6 members each round, or larger, electing between 5 and 8 members each time if staggered by halves.

These reports highlight the need to consider size of constituency alongside how staggered the terms are as this will impact on proportionality. Whether constituencies are allocated members strictly on population or whether a floor is created to ensure every area has a minimum constituency size is also a consideration. As in many territorial chambers, it may be that certain areas are over or under-represented to ensure all communities are given a voice.

Electoral systems for senates

Direct election

Direct election is the most common form of selection for upper chambers and a range of electoral systems are used across wholly and part directly elected upper chambers.

Australia uses a form of STV which includes the option of an ‘above the line’ or ‘below the line’ vote. An ‘above the line’ vote allows voters to vote preferentially for parties and the ‘below the line’ vote allows voters to vote preferentially for individual candidates. Senators are elected in multi-member districts comprising of each state (and two territories). This system has ensured that the Australian Senate has a different composition to the House of Representatives with a broader number of parties.

Italy has changed its electoral systems several times in recent years. Current arrangements, in place since 2017, use a form of mixed system for both Senate elections and for the Chamber of Deputies. Seventy-four senators are elected by FPTP in single constituencies and 122 senators are elected in multi-member constituencies by PR. Unlike AMS (used for the Scottish Parliament), the PR seats are not allocated with reference to the constituency results making the final outcome less proportional than with an AMS system. The candidate ballot and lists are linked so voters cannot choose a candidate and a list that isn’t linked to them, preventing ‘split-ticket’ voting. The Chamber of Deputies in Italy uses the same system with the same ratio of FPTP and PR seats, albeit with a larger number of seats available which can affect proportionality. However, the similarities in system (and concurrent elections) mean that the two chambers tend to be very similar in political composition.

Majoritarian systems are used to elect senators in the US though the method varies by state with some employing primaries and/or run-offs for the top two candidates if no candidate receives a majority. Swiss cantons can also decide on which electoral system to use but the majority currently opt to use a two-round majoritarian system.

Japan’s House of Councillors has a mixed system combining majoritarian and PR elections; 148 of its members are elected by plurality elections in multi-member districts and 100 from open list PR (the number has increased to try to address changes in population).

Indirect election

Indirect election is the second most common form of selection and, as with direct election, there are a range of different forms used in second chambers.

In India, members of the upper house (the Rajya Sabha) are elected by members of the state legislatures and union territories by the Single Transferable Vote. They are not themselves members of the state legislatures but rather serve as members of the parliament.

In Austria, the Federal Council is comprised of members of the federal states, delegated by those state legislatures and distributed according to party strength. The members therefore change when the Landtage have new elections.

In Germany, state governments appoint members of the Bundesrat from amongst governments of the Länder, members change when the government does.

In France, senators are elected indirectly by officials including Councillors, Mayors and members of the National Assembly using either a two-round system or PR. Similarly, in Ireland, 43 members are elected by vocational panels made up of TDs, councillors and outgoing senators using the Single Transferable Vote.

Spain uses a mixture of indirect and direct election. Plurality elections in multi-member constituencies are used for directly elected members with voters allowed to choose three candidates. Indirectly appointed members are chosen from the legislatures of the autonomous communities in proportion to the party groupings in those parliaments. Indirectly elected members are often, but not always, members of those legislatures.

Not only are there many different electoral systems but many different ways of combining electoral systems and types of election. Even countries using predominantly direct or indirect election may also include some appointments such as the eight ex-officio members in the Italian senate, the 12 members chosen by the President in India and 11 appointed by the Taoiseach in Ireland.

Term length and partial replacement

When direct election is used for upper chambers, it is often combined with staggered, longer terms. These features ensure that at least a proportion of the upper house is elected less recently than the lower house and means that membership is less affected by changes in the political mood. It also usually results in chambers that have different political compositions. From a government perspective, partial replacement also means that, should the upper chamber obstruct their programme, there is the prospect of the composition changing (if elections to the upper house are not in concert with the lower house) half-way through a parliamentary term.

In Australia, senators sit for six years with half the senators of each state elected every three years. Similarly in Japan, members of the House of Councillors are elected for six-year terms, half the Council elected every three years. In India, members of the upper house serve six-year terms with a third resigning every 2 years. The US Senate also elects a third of members every two years for six-year terms. For predominantly indirectly elected chambers, membership is often linked to the elections of the sub-national legislatures, meaning second chamber membership will change when the sub-national legislature do. In France however, indirectly elected senators sit for six years with half the seats up every three years.

Should partial replacement be adopted for a directly elected House of Lords, the timings of elections would have a bearing on how this could take place. Previous suggestions for reform have tied elections to either the General Election or European election cycles and both the House of Lords Reform Bill 2012 and Wakeham Commission 2000 suggested a term length of three electoral cycles. Without fixed-term parliaments however, the length of terms for members could of course vary considerably. The recent run of snap general elections would have reduced the term length for members elected in 2015 to eight or nine years instead of fifteen as anticipated in both the Wakeham and 2012 proposals. The Wakeham Commission acknowledged the issues of shorter parliamentary terms and suggested that, should an election be called less than two years after the previous election, this should not affect the upper chamber electoral cycle with the election term reverting to the first election date. This would not have made a difference to the cycle of elections after 2015 as these elections fell slightly over the two year mark, however in circumstances similar to 1974 where two elections were held within a very short period, this proposal would avoid dramatically reducing the term length of the upper house.

Should indirect election be part of a reformed upper chamber, particularly if devolved legislatures nominate delegates of the parliament or government (rather than elect separate members), then those elections would need to be in concert with the legislatures that indirectly elect. Currently the Senedd and the Scottish Parliament hold elections every five years.11The Senedd Cymru (Members and Elections) Bill currently tabled would move this back to four years. Elections to both those parliaments are scheduled to avoid clashes with general elections. The Mayor of London serves for four years, and Metro Mayors will be on a four-year election cycle from 2024. Of course, there is nothing to prevent members of a reformed Lords changing in concert with those legislatures at different times – the current membership of the House of Lords changes on an ongoing basis as new peers are appointed or resign.

The suggestion of three electoral cycle terms in previous reform proposals for the House of Lords reflects the desire for a significant degree of continuity in membership and long service. However a 12-15 year term is very long by international standards where five years is the most common term length for second chamber members (14 countries have terms lengths of 4 years, 34 countries have 5 year terms, 18 have 6 year terms and only 3 have term lengths over 7 years). Long term lengths are seen as helping to encourage a longer-term view but too long could raise the issue of democratic accountability.

Composition and representation

Over the various reform proposals, one issue has been universally acknowledged – that the House of Lords does not represent modern Britain in its membership. Instead of representing the regions, nations or people of the UK, the House of Lords, in composition, still reflects the old feudal estates of clergy and noblemen with reserved seats for bishops and hereditary peers. It is therefore unsurprising that the Lords is unrepresentative of the UK in the 21st century but this lack of representativeness, as noted earlier, can impact on the input legitimacy of the House. A lack of representative legitimacy may restrict the role that the upper chamber can play within Parliament, holding it back from challenging government or using its powers, and can also bring into question whose interests the chamber serves which can affect how the public views the legitimacy of its work.

Legitimacy is also linked to consent and identification in the eyes of the population: a visible lack of representativeness can erode the important link with the people parliament serves, and this has implications for trust and engagement. So whilst the House of Lords may feel that this lack of representativeness does not impact on its procedural legitimacy, representation is an issue that cannot be separated from the role and performance of the chamber.

Representative legitimacy can come from experience, for instance being representative of different levels of government or professional experience, or it can come from being substantively representative – of a group or region, or it can come from the method of selection in the sense of being democratically representative. The current Lords is not democratically representative but nor is it demographically representative of the UK. And whilst it aims to bring together a range of professional experiences, the primary profession of those in the Lords is, increasingly, politics. Despite having the tools to create a more representative chamber through appointment, the House of Lords is moving in the opposite direction.

Representation

Some chambers derive their role and legitimacy from representing under-represented groups or from being more representative in general. This can be secured by over-representing certain territories or by ensuring greater diversity amongst membership.

Despite the power to appoint, the House of Lords membership is comprised of only 28% women, placing the chamber 35th in global rankings (behind directly elected chambers such as Australia, Mexico and Italy). Membership is also heavily weighted towards certain parts of the UK. Around 24% of members of the House of Lords list their main residence in London and a further 21% the South East. Certain areas such as the West Midlands and North East are not well represented in the chamber.

Because peerages are granted for life in the House of Lords, it is also one of the oldest chambers globally with only 1.9% of peers aged 45 or under. The average percentage of senators globally who are 45 or younger is 17.8%. However, it is also not uncommon for upper chambers to place value on the experience of their members with some upper chambers specifying a higher age of eligibility. In Italy the minimum age to stand for the Senate is 40, as it is in the Czech Republic. In Japan, France, the US and Poland the minimum age is 30. With very few members of the House of Lords under the age of 40 however, even a relatively high age limit of 40 would not greatly change the current composition – affecting only 0.64% of the membership.

Most surprisingly perhaps is the lack of representation of women. With over 65 years of appointments in which to address this imbalance,12Since the 1958 Life Peerages Act allowed women to become members of the House of Lords nominees continue to mirror the same pattern, with successive Prime Ministers appointing more men than women. The continued presence of hereditary peers in the chamber also serves to skew the chamber as nearly all hereditary titles pass through the male line and there are very few women on the peerage waiting list – in effect reserving 92 seats in the chamber for men.

Diversity and representation can be improved in a directly elected upper chamber in a number of ways. Election would of course confer democratic representation and regional lists or constituencies could ensure better territorial representation. Creating a more substantively representative chamber can also be encouraged depending on the electoral system and the processes parties use within it.

Diversity of representation is not guaranteed by any electoral system, but PR systems do better at producing diverse and particularly gender balanced chambers. For instance, women have greater chance of being selected and elected under PR electoral systems, particularly those with large district magnitude.13ERS report (forthcoming)

An elected second chamber could also include direct measures to improve diversity such as quotas. Many upper chambers have legislated electoral quotas for women including the Argentine Senate which introduced a quota for women when it moved from indirect to direct election in 1995. The Belgian constitution also has gender quotas for the Senate, reserving seats, and a candidate quota is used for the French Senate which requires alternation on the ballot. The Rwandan Senate requires 30% of senators to be women whilst also being indirectly elected. In total the IPU categorises 33 second chambers as having gender quotas, though some of these are in the form of voluntary party quotas rather than legislated by the parliament.

A reformed and elected House of Lords would have many options to improve the diversity and representativeness of the chamber and Parliament as a whole.

Experience

The current House of Lords is valued for bringing together experts to add to the quality of debate. However, most peers appointed by successive Prime Ministers have been former politicians or political staff. The Wakeham Commission noted that the new Chamber should not be ‘a home for yet another group of professional politicians’. Yet in the years since the Commission, without introducing election, the upper chamber has increasingly come to resemble this. The predominance of experience in elected politics within the current chamber suggests that electing peers would not prove an impediment to the experience and expertise currently enjoyed in the Lords.

Similarly, appointments made by Prime Ministers routinely dwarf those of the Appointments Commission. Only seven appointments have been made by HOLAC since 2016 during which time Prime Ministers have created 165 new peers. The Wakeham Commission also stated that parliament should not, indeed could not, be a ‘politician-free zone’: the upper house needs experienced legislators, but it should be designed to limit parties’ influence and encourage independent judgement. The increase in political appointments to the House of Lords suggests this is not currently the case.

The functions of a reformed chamber may suggest specific knowledge or experience that whilst not precluded by election, might be sufficiently important to design the system to include on a more direct basis. The chamber currently reserves seats for inherited titles and the Church of England. This is a suitable system for ensuring the interests of the landed gentry and church are protected but a reformed chamber may want to reserve seats for other interests. For chambers that have particular roles in protecting regional or constitutional interests the composition should serve that purpose. It would however be problematic if in a mixed model, the appointed members held the balance of power over elected ones. They may however, with view to input legitimacy, exercise restraint in those situations.

Party balance and size

The ability of Prime Ministers to appoint whomever they choose to the chamber ensures that an increasing number of peers of the governing party are appointed after each election. The majority of peers appointed since 2015 (over 50% of all appointments) sit as Conservatives peers, this is despite the governing party already having the largest number of peers in the House of Lords by 2015. Since then, the number of governing party peers has continued to increase whilst opposition peers have decreased in number. This not only gives the government a stronger voice in the second chamber but means that if the government changes, there is an inbuilt incentive for the next Prime Minister to inflate the numbers even further to redress the balance.

The incentive for incoming governments to use the power of appointments to ‘rebalance’ the upper chamber in favour of their party creates an unsustainable situation in which the chamber is ever increasing in size and the number of political appointments grows at a much faster rate than the more politically independent peers (generally those recommended by the Appointments Commission). There were 666 peers (including ineligible peers) in 2000 but by 2010 this figure had reached 735. A change in governing party saw the size of the Lords leap to 826 by 2012, and rise further reaching a peak of 860 in 2016.

By contrast, many elected and indirectly elected chambers manage to ensure political balance and diversity without appointment whilst at the same time maintaining a chamber of a stable size. Fully or partly electing the Lords and removing unrestricted prime ministerial patronage would amongst other benefits, stabilize membership.

At around 800 members currently, the House of Lords is by far the largest second chamber meaning parliament has more unelected members than elected. The second largest upper chamber is the French Senate which, at 348 members, is half the size of the House of Lords. But second chambers are typically much smaller – the number of senators in second chambers worldwide averages around 90 members. Smaller chambers have the benefit of making debates more manageable and, combined with longer terms, can foster closer, more constructive working relationships between members.

The ratio of lower to upper house varies considerably from Senates which are a fifth of the size of the lower chamber (in the US and in Poland) to France’s Senate whose 348 members make it 6/10th of the size of the National Assembly or Spain’s Senate which at 259 members is three quarters of the size of the Congress. It is however highly unusual to have an upper chamber that is larger than a lower chamber.

Previous suggestions for reforming the Lords have suggested between 200 and 600 members: a range still large by international standards. The Wakeham Commission recommended a reformed house of around 550 members, later in the 2001 white paper, a slightly larger house of 600 was recommended; 600 was also recommended by the Joint Committee on Lords Reform in 2003. The 2007 white paper suggested 540. The 2011 House of Lords Reform draft bill put forward a chamber of 300 plus Bishops and government ministers. This was subsequently increased to 450 in the final bill. The Act of Union private members bill suggested 292 elected members and 100 appointed by HOLAC and the recent Labour Party Commission recommended 200.

There is, however, a consensus that the House of Lords is too large and a smaller chamber would be more appropriate. The Lord Speaker’s Committee report, published in 2017, recommended capping the size of the Lords to 600 members (which would still leave it over 9/10ths of the size of the Commons). The report also recommended 15-year fixed terms for new peers and a ‘two-out-one-in’ system, which would allow a gradual reduction in the size of the House by ensuring that any new appointment could only be made once two existing members had left. However, the fourth report of that committee in May 2021 concluded that ‘a voluntary approach is no longer working and any progress that has been made is being undone by too many appointments.

Other considerations of size depend on whether the House is elected all at once or by partial replacement. Too small a number, if elected by halves or thirds, could impact on the diversity of representation and the proportionality of the results.

There is also the question of how many Peers are needed to fulfil the work of the chamber – particularly if its role is expanded. The 2008 white paper finds that with daily average attendance around 400, a chamber of between 400 and 450 members would provide the same number of members to do the work of the Lords as there is at present. Daily attendance has not changed greatly since that report. The average attendance since 1999 is 417 members and from 2019 to 2023 the average has been 372.

However, despite a general consensus around reducing the size of the chamber, it is clear that for legitimacy in the eyes of the public, a reduction in size alone is unlikely to be sufficient. Recent polling suggests that the public are also concerned about the continuation of hereditary peerages, the appointments process, a lack of diversity in membership and the lack of democratic accountability.

SUMMARY: composition, selection, representation

Composition and selection should match role and powers. Upper chambers can have more than one role and their composition may be similarly mixed. A reformed House of Lords which combined territorial representation alongside a scrutiny role could have a mixed process of selection potentially combining indirect and direct election or ensuring territorial representation and political balance from direct election with other mechanisms to support the necessary connections to devolved parliaments. Most importantly, election instead of appointment would ensure the upper chamber has the legitimacy to perform those roles.

The method of selection is important for legitimacy. Patronage, a lack of representation (electoral or substantive) and outdated reserved seats for church and inherited titles are undermining the legitimacy of the Lords. Legitimacy could be conferred by direct election or greater representativeness of particular groups or interests, or by providing a wide range of expertise. It could combine any number of these elements. A territorial chamber would need to secure representation that reflected the whole of the UK for legitimacy on territorial issues, whilst for the upper house to perform its scrutiny role effectively it needs to act independently of government. The current process of selection on the basis of prime ministerial patronage works against these goals.

Representation is important for legitimacy. A visible lack of representativeness can erode the important link with the people Parliament serves and this has implications for trust and engagement. An elected Lords would have many options for ensuring the chamber reflected the people it serves. Decades of appointment has not served this goal, but significant reform could.

Creating a chamber that is different from Commons

  • Electoral system

It is widely agreed that an elected Lords should not be elected on a majoritarian basis but instead by proportional representation. There are many PR systems to choose from, but the Single Transferable Vote (STV) would serve the ambitions that have been consistently stated. STV would be highly unlikely to lead to a single party majority, would ensure regional representation but with large constituencies would not challenge the link between constituents and their MP, would encourage greater diversity in candidates, and is favourable to the election of independent and independently minded candidates.

  • Electoral cycle and term length

Staggered elections (either by halves or by thirds) would ensure that the Commons always has a more recent mandate than the Lords, that the party balance is not fully shifted by changes in political mood, and that there is a greater degree of consistency in membership. Terms lengths of two to three electoral cycles would be long by international standards but a significant improvement on the current system of jobs for life. In the absence of fixed-term parliaments, if elections are to be held on General Election cycles, a process of skipping snap general elections within a two-year period could be used. Strong processes of accountability, and upholding integrity and standards will be crucial if terms are long and non-renewable.

  • Size

Whilst reducing the size of the Lords is an uncontested goal, proposals to date have been modest in their ambitions – a 600-seat Lords would still be huge by international standards. A reduction in size alone would not resolve the issues of political balance or the in-built incentive for new Prime Ministers to appoint from their own party. An elected house of around 300 seats would allow for fairer territorial representation and proportionality in results (even if elections are staggered).

Overcoming the obstacles

Commons primacy and dispute resolution

Concerns are often expressed that an elected and therefore more democratically legitimate upper chamber may challenge the primacy of the House of Commons. In this there is a distinction made between the formal powers and conventions that determine the relationship between the chambers and how those powers are used – a case of greater input legitimacy encouraging a change in behaviour, rather than any formal change in powers. Whilst Commons primacy is secured in the formal procedures of Parliament, the argument is that a more assertive upper chamber may be more inclined to use its powers to thwart a government’s legislative programme and at the extreme end, result in gridlock.

It is therefore important to look at the formal procedures of dispute resolution to understand why a more legitimate and assertive house would pose a risk to legislating. In doing so, it is also useful to make the distinction between disagreement over legislation and terminal gridlock.

Rather than deny our upper chamber greater democratic legitimacy on the basis it might be more assertive, we should consider why current dispute resolution mechanisms might be inadequate to the task of resolving difference between the chambers.

It is also important to consider the powers of the Lords not just in relation to the Commons but also the balance of power between Parliament as a whole and the Executive. With a strong executive, absolute primacy for the Commons would not be in the best interests of Parliament. The upper chamber can provide an important pause on legislation, forcing the government to think again and restate its case. If we accept that good parliamentary democracy requires the upper chamber to have some ability to ask the government to think again, the questions are then, what is the best way to do so? What should the limits be on such power? And how should conflict between the chambers be resolved?

Commons primacy

The Parliament Acts establish the formal powers of Lords in which the upper house may only delay legislation for up to a year (a suspensive veto). This applies to all Commons legislation except money bills which must receive Royal Assent within a month of being introduced in the Lords. The Lords does have the power to veto legislation that seeks to extend the life of the Parliament beyond five years, bills that start in the Lords, bills that are sent to the Lords less than a month before the end of the session and private bills.

The Salisbury Convention further ensures that the government of the day can get its legislation through Parliament by ensuring the Lords does not vote down any legislation that is mentioned in the Government’s manifesto – in practice this means not rejecting, delaying or making ‘wrecking’ amendments to manifesto bills. Naturally conventions are open to interpretation and the Salisbury Convention is no exception. Not only is it open to judgement whether a bill is a ‘manifesto bill’ but the very nature of the convention has itself been subject to extensive debate. It has been noted that the convention has increasingly been applied to all government bills whether a manifesto commitment or not.

Changing the composition of the Lords need not change the existing relationship as set out in the Parliament Acts. Indeed previous proposals for Lords reform have, in general, sought to replicate the existing relationship and balance of powers.

The Wakeham Commission did not suggest any major changes to the balance of powers between the Houses, maintaining the suspensory veto and asserting that the principles of the Salisbury Convention should be maintained.14The Commission did propose a change to the Parliament Acts to prevent them being amended by use of Parliament Acts procedures. The government’s subsequent 2001 white paper rejected this suggestion. No additional powers over the Constitution were included though a Constitution Committee was recommended as well as committees on devolution and human rights. The UCL Constitution Unit noted at the time that “the Commission rejected giving the chamber new constitutional powers, which leaves us out of step with other Western democracies”. And whilst the Wakeham Commission noted that the upper chamber should serve the interests of the whole of the UK, it refrained from creating new powers or roles, recognising that devolution was at an early stage at that time.

Similarly, on powers, the House of Lords Reform Bill 2012-13 intended the existing relationship between the two houses to continue without change to role or functions. The bill stated that the Parliament Acts of 1911 and 1949 would continue to apply after the reforms came into force and did not seek to codify the existing conventions. The joint committee examining the draft bill had mixed views on whether this would be sufficient given the changed composition of the chamber but the majority of that committee concluded, whilst recognising that there would be a shift, that ‘the remaining pillars on which Commons primacy rests would suffice to ensure its continuation’. The Committee did however suggest that following reform, there should be a process for agreeing on the conventions governing the relationship. Should a principle similar to the Salisbury Convention be desired, a resolution of both Houses could be set out to affirm the principle of the convention.

Gridlock of the type that would bring the government to a halt would be prevented under any arrangement that mirrored the current balance of powers. Prior to the 1911 Parliament Act it was possible for the Lords to do so by refusing to pass supply bills thus denying the government funds. The Act ensured that money bills were exempted from the Lords’ delaying powers to prevent this from happening. Therefore complete paralysis of parliament is not only unusual but unlikely even with a more assertive upper chamber if the current balance of powers are maintained. Gridlock of this nature is usually the result of the designation of powers not the composition of the House.

Disagreement over legislation is a different type of conflict – one which can delay but not terminate a government. Whether a more assertive Lords would use the suspensory veto more frequently is often raised as a concern, which may warrant a review of the length of this delay and the current methods of conflict resolution.

Preserving the current formal arrangements is therefore possible but it isn’t necessarily desirable. Whilst possible to replicate the existing use of powers, some question whether it is appropriate. It could be argued that a more democratically legitimate upper chamber should have greater powers over legislation, particularly upper chambers that have specific roles, such as territorial or constitutional ones.

Labour’s recent Commission on the UK’s Future takes a different approach, proposing the upper chamber has additional powers to reject legislation that relates to specific constitutional statutes. These proposals also reduce the Lord’s powers by removing the power of delay over ordinary legislation. It also suggests additional limitations on the power over constitutional legislation if the Commons disagrees – such as the possibility of the Commons overturning the decision with a two-thirds majority or being able to re-introduce the legislation after a General Election.

There is significant consensus however across a range of suggested forms of Lords reform that the Commons would continue to be the governing chamber providing the leadership of the government of the day. Under the current arrangements governments require the confidence of the Commons rather than both Houses. This is a significant element of Commons primacy. In Italy for instance, where both chambers have equal powers, the executive must secure the confidence of both houses to execute its powers.

Electing the second chamber doesn’t in itself lead to more conflict. Rather there are a whole range of factors including the distribution of powers, the methods for resolving disputes, and conventions, that affect the relationship between the houses.

Dispute resolution: alternatives

The suspensive veto contained in the Parliament Acts is, in comparison with other second chambers, fairly unusual. There are upper chambers around the world which also use suspensive vetoes but usually these are shorter timed delays, and the government does not need to re-introduce the bill. Suspensive vetoes are also often accompanied by a joint committee process to work through disagreements.

Reforming the Lords presents an opportunity to update the mechanisms for resolving disputes between the chambers whether the formal powers of delay are revised or not. Rather than reducing the Lord’s power because of a fear of future conflict, reform could introduce other measures for finding resolution should conflict occur.

At present around sixteen parliaments worldwide have a process in which the decision of the lower chamber takes effect after a designated period of time. Twenty-six parliaments have rules which mean legislation cannot pass unless both chambers agree. The remaining twenty-four, including the UK, use other methods. Typical methods of resolution include bills shuttling between the houses, joint sessions or committees and sometimes, if the houses can’t agree, the option of putting it to a referendum.

In France for example, a bill, after being discussed once in both houses, can shuttle between each house to reach agreement (like the UK’s ping pong). The Prime Minister can then stop the shuttle after two readings and call a meeting of a joint mediation committee. The Committee draws up a compromise on the disputed clauses which is then put to a vote. If the chambers can’t agree, the lower house has the final word (a vote on the final text in the lower house) however this mediation process fails on only 10% of laws. This process does not apply to constitutional changes which must be approved by both Houses subject to a qualified majority (or by referendum).

A committee process is also used in Germany but because the upper house has a veto over legislation affecting the states, the lower house does not always have the final word. The mediation committee may recommend that a bill is revised, that it is accepted or that it is repealed, however it must return to both houses for a vote. The mediation committee in Germany is a permanent committee with a fixed membership (often senior politicians), whilst in France, membership is specific to the bill in question.

Membership of joint committees is usually equally split between the two chambers with members being representative of the relative strength of party groups in each chamber. In Germany the mediation committee membership is made up of a representative from each of the states and an equal number of representatives from the federal parliament.

The Australian process is unusual in that disagreement can lead to simultaneous dissolution whereby both Houses are dissolved and new elections held. This can only occur after the Senate rejects the bill twice, a period of time elapses and then the bill passes in the Commons and is rejected again. Simultaneous dissolution has only occurred seven times since federation at the turn of the last century.

The role of the second chamber also affects which methods of dispute resolution are appropriate and whether the final word always falls to the lower house. Often decisions on specific types of legislation such as territorial or constitutional legislation have specific procedures. On ordinary legislation, which is not subject to veto in the upper chamber, votes following joint sittings or committees tend to give the primary chamber the final say because upper chambers tend to be smaller in membership than lower chambers.

Whilst it is appropriate for the primary chamber to have the final say on ordinary legislation, the opportunity to improve dialogue and reach a more consensual outcome is provided by having additional dispute procedures such as joint committees or sittings. There is even precedent for such debates in the UK Parliament. There was formerly a process of a ‘conference’ between the Houses whereby the two chambers would meet to discuss disagreement on a bill – the last of these was held in 1836. The Bryce Report of 1918 suggested a ‘free conference’ of this type to resolve matters ‘by friendly methods’ but those recommendations were not implemented.

Time to reform

The assumption that the House of Lords itself would block any attempts at Lords reform is worth unpicking not least because previous attempts at reform have stumbled in the Commons meaning that the claim hasn’t in reality been put to the test.

The 2012 House of Lords Reform Bill failed not in the Lords but in the Commons with Conservative backbench MPs and Opposition MPs voting against the programme motion. In the 2001 votes, whilst the Lords opted for the 100% appointed option, none of the reform options achieved a majority in the Commons. In 2007 the Commons reached an agreement on either an 80% or 100% elected House of Lords but subsequent reform suggestions (arising from cross-party talks) were not taken forward.

Over the years, the second chamber has recognised the need for reform and has made recommendations for change. In the 2017-19 session Lord Lisvane introduced the Act of Union private members bill which as part of a reshaping of the relations and powers between the constituent parts of the UK included options to either abolish the Lords or reform the chamber (to have 292 elected members serving 15 year terms and 100 members appointed by HOLAC). Lord Grocott has introduced several private members bills aimed at removing hereditary by-elections but despite widespread support for change, these bills have been frustrated by a small number of committed opponents. The Lord Speaker’s Committee on the size of the House chaired by Lord Burns has made concrete suggestions for reducing the size of the chamber and creating term limits. It has to date however had little impact on these issues.

With all parties supportive of reform in principle and considerable similarities across various reform proposals creating a platform of agreement on which to begin, decisive action is now needed to avoid spending more time on debating and failing to reform.

Timeline of Lords reform

Since the 1999 reforms there has been a series of committees, papers, bills and votes addressing the issue of Lords reform.

  • November 1999 – House of Lords Act – removed the right of all but 92 hereditary peers to sit in the chamber.
  • January 2000 – Royal Commission on the reform of the House of Lords (Wakeham Commission) – proposals for next stage of reform. Recommended a reformed House of Lords would have around 550 Members (with 65, 87 or 195 elected Members). It recommended the creation of a statutory appointments commission to be responsible for all appointments to the second chamber. It did not propose any radical change in the balance of power between the two Houses.
  • November 2001 – White Paper: Completing the Reform – Government response to the Wakeham Commission. Agrees with Wakeham proposals for a predominantly appointed upper chamber and puts forward 20% elected (120) in a 600-member house. The paper also suggests that the same number (20%) should be non-party-political appointments.
  • February 2002 – Public Administration Committee fifth report – the Committee’s response to the 2001 white paper recommends a majority (60%) elected house with 20% party nominees and 20% independent appointees. Members would sit for two terms (or 10 years for appointed members).
  • 2002-03 – Joint Committee on Lords Reform ­– the Government proposed a Joint Committee to achieve consensus on reform.
  • December 2002 – Joint Committee first report – sets out seven options for reform, including wholly elected, wholly appointed and five different combinations of elected/appointed. These options were then subject to votes in both Houses.
    The House of Commons voted against all seven options for reform, while the House of Lords voted for the fully appointed option – rejecting all other options. The option which MPs defeated by the fewest votes (just three) was for an 80 percent elected chamber.
  • May 2003 – Joint Committee second report – identifies areas of consensus (on roles, powers, qualities and desire to improve representativeness) and suggests areas of reform that should have further review including the size and tenure, role of the Appointments Commission, remaining hereditary peers, Bishops and the possibility of indirect election.
  • June 2003 – Government announces proposals for a new Supreme Court to replace the system of Law Lords sitting as a committee of the House of Lords.
  • September 2003 – consultation paper: Constitutional Reform: next steps for the House of Lords – the white paper proposed limited reforms removing the remaining hereditary Peers and putting the Appointments Commission on a statutory footing. The Joint Committee had said previously “Since the House of Commons rejected the option of a fully appointed Second Chamber by a large majority on 4th February it would be absurd and unacceptable to introduce legislation which would have that effect. Simply evicting the hereditary Peers, and placing the appointments process on a statutory basis, would result in that soundly rejected option.”
  • November 2003 – Queen’s speech announces reforms to remove hereditaries and create statutory appointments commission.
  • Feb 2004 – Constitutional Reform Bill is introduced establishing Supreme Court but not ending hereditary seats in the Lords. Receives Royal Assent in March 2005.
  • July 2004 – report by Labour peers on Lords reform: ‘Reform of the Powers, Procedures and Conventions of the House of Lords’
  • February 2005 – cross-party report on Lords reform: ‘Reforming the House of Lords: Breaking the Deadlock’
  • April 2005 – Labour, Conservative and Liberal Democrat manifestos all contain commitments to Lords reform. The Conservative and Liberal Democrat manifestos call for predominantly or substantially elected chambers. The Labour manifesto commits to a free vote on composition.
  • October 2006 – Joint Committee on Conventions publishes its report on the possibility of codifying the conventions of the relationship between the two houses. They are tasked with looking at the Salisbury-Addison convention, conventions on secondary legislation, the convention that the Lords should consider government bills in reasonable time and conventions on amendments to legislation.
  • February 2007 – White paper, The House of Lords: Reform proposes a hybrid elected and appointed house with at least 20 percent non-party-political appointments, direct elections through a partially open list system at the same time as European Parliament elections and a reduction in size to 540 Members.
  • March 2007 – Commons votes on composition – MPs support an 80 percent elected House and a 100 percent elected House. They also support a motion stating that the remaining hereditary peers should be removed.
  • March 2007 – Lords votes on composition – Peers voted in favour of a fully appointed House and rejected all other options.
  • July 2007 – Green paper ‘Governance of Britain’ committed to enacting the will of the House of Commons as expressed in the March votes and that cross-party discussions would continue.
  • July 2008 – White paper, An Elected Second Chamber: Further reform of the House of Lords – The paper (the result of cross-party discussions following the votes) models options for a smaller, 100% or 80% directly elected chamber with 12-15 year terms – staggered and elected at the same time as the GE. Removes hereditary peers and proposes a statutory appointments commission if there is to be an appointed element.
  • July 2009 ­– Constitutional Renewal and Governance Bill – The bill included measures to end hereditary by-elections and measures to allow the House to expel or suspend members and for peers to be able to resign. The bill was passed in wash up before the 2010 election but the clauses on House of Lords reform were removed.
  • May 2010 – Conservative, Labour and Liberal Democrat manifestos all contain promises on Lords reform and all are committed to a ‘mainly’ or ‘fully’ elected chamber. The Coalition agreement stated: “We will establish a committee to bring forward proposals for a wholly or mainly elected upper chamber on the basis of proportional representation”.
  • May 2011 ­– House of Lords Reform draft bill – The draft bill proposed a 300-member chamber with 80% elected by the Single Transferable Vote and 20% appointed. Members would sit for 15-year (non-renewable) terms. Elections staggered by thirds and would take place on General Election cycle. Appointments made by statutory appointments committee. Included measures on expulsion and resignation removed from previous legislation.
  • April 2012 Joint Committee on the Draft House of Lords Reform Bill report agrees with most of the draft bill recommendations but suggests a 450-member chamber.
  • June 2012 – House of Lords Reform Bill introduced – The bill legislates for an 80% elected chamber of 450 members. Elected for non-renewable 15-year (3 electoral cycle) terms. Elections to be held by semi-open lists on European parliament regions (STV to be used for Northern Ireland).  This bill was withdrawn in September 2012.
  • May 2014 – House of Lords Reform Act – Introduces resignation and allows for expulsion.
  • October 2017 – Lords Speaker’s committee on the size of the House (Burns Committee) report – recommends reaching a maximum size of 600 by a ‘two out, one in’ process and from there only appointing when a vacancy arises (new members to be appointed for 15-year fixed terms).
  • July 2023 – Lords Speaker’s committee on the size of the House fifth report – The Committee’s progress report notes that twice as many new peers have been created than the committee’s suggested benchmark and that the appointments have been weighted towards the governing party far more than suggested by-election results. The report notes, “Prime Minister Boris Johnson showed no interest in the issue of the size of the House. While the number of departures from the House continued to be broadly in line with our benchmarks, the number of appointments far exceeded them and they were granted predominantly to members of his own party”.

Previous proposals for reform in summary

Proposal Size Composition elected/appointed Term length Electoral system
Wakeham Commission (2000) 550 3 options:

A: 65/485

B: 87/463

C: 195/355

15 years

European Parliament electoral cycle

Staggered elections

Options B and C: Open regional list
2001 White Paper 600 120 directly elected

120 independent appt comm

332 political nominations

16 bishops/ 12 law lords

Favours shorter than 15 (consults on 5, 10 or 15)

GE electoral cycle

All up

Regional list (open or closed)
2002 Public Administration Committee fifth report

 

350 60% elected, 20% party appointees, 20% independent appointees 10 year (two Commons terms)

GE electoral cycle

Staggered elections (halves or thirds)

STV or Open List (regional constituencies)
2002 Joint Committee 600 7 options (to be put to a vote)

Fully elected

80/20

60/40

50/50

40/60

20/80

Fully appointed

12 years

Non GE electoral cycle

Open regional list or STV
2005 ‘Reforming the House of Lords: Breaking the Deadlock’ 385 70% elected, 23% appointed, 16 bishops and 12 places for Prime Ministerial appointees (ministers) 12-14 years

(three Commons terms)

GE electoral cycle

Staggered elections – thirds

STV or open list (preference for STV)

 

 

2007 White paper

 

540 Part elected and part appointed (tbd)

20% non-party appointments

15 year terms

European Parliament electoral cycle

Staggered elections – thirds

Regional list (partially-open)
2008 White paper Models using 400-450 members 100% or 80% elected 12-15 year terms

GE electoral cycle

Staggered elections – thirds

Models FPTP, STV, open list and AV
2011 Draft House of Lords Reform Bill 300 80% elected 20% appointed 15 year/(3 Commons terms)

GE cycle

Staggered elections – thirds

STV
2012 House of Lords Reform Bill 450 80% elected 20% appointed 15 year/3 terms

GE cycle

Staggered elections – thirds

Semi-open regional list (STV in NI)

Annex

Donors

We’d like to thank the following for their kind donations towards this report: David Hands, Geoffrey Woodcock, Keith Best, John Beveridge, Vicky Seddon, Nigel Fordham, Roger Slevin, Barry Hopewell, Hamish Gough, Noel Thomas, Rosemary Stephenson, Richard Woodcock, Simon Campbell-Jones, Roy Meddings, Gerald Hamilton, Bill Smith, Brian Salter, Dane Roberts, John Winter, Graeme Watts, Julian Tippett, Dennis Walton, Christopher Jones, Simon Pallett, Martin Stemp, Erik Williams, Valmai Ward, Phillida Sawbridge, Timothy South, David Gulland, Roy Harrison, Suki Kyme, Melanie Frankell, Dr John Brunton, Sandra Kenny, Tom Franks, Michael Hocken, Peter Barnett, Anna Parsley, Rosemary Miles, Bruce Obermaier, Heather Smith Thomassen, Miles Hadley, Thomas Roberts, Deolinda Eltringham, Tim McCullen, Avril Woodward, Shirley Rodwell, Annette Traverse-Healy, Wade Hyde, Ian Ferguson, John Nixon, Martin Dove, Rachel Dineley, John Pybus, Jean Malcolm, Alison Hedger, Willemien Hines, Stephen Moore, Eugene Carolan, Debbie Roberts, John Jones, Tess green, William Straw, Simon Woodhead, Stephen Gibbons, Andy Thesen, Christopher Probert, KJ Swainson, J Irvine, Lyn Porter, Ronald Stewart, Maggie Peat, Jeff Williams-Jones, Tim Folan, Jennifer Bennett, Tony Johnstone, Christopher Kates, Robin Yates, Andrew Watters, Michael Rozdoba, Alan Hill, Colin Smith, Martyn Tidball, David Niblock, Paul Bishop, Eileen Kay, Martin Campbell, Jean Pegg, Graham Robb, Dave Rydings, Roger Snowden, Nic Knowland, Clive Scarlett, Nikhilesh Dasgupta, Neil Berry, Edward Canfor-Dumas, Tania Robertson, Rita Baker, Kenneth Barclay, Ian Buchan, Neil Caldwell, Donald Fraser, Penelope Freeman, Raymond Houseago, Carol Primrose, Colette Reap, Martin Rimmer, Malcolm Robertson, Melanie Still, Rosalind Gauci, Ross Sargent, Ron Pratt, James Friend, Rodney Lake, Anna Holdom, James Mahood, Philip Harbron, Mark Say, Lawrence Leger, Bonamy Devas, Nick Pearson, Alexandru Scvortov, Chris Bird, Pat Chapman, Simon Royle, Robert Llewellyn, Leigh McKenzie, Kiaran Asthana, Christina Hooley, Tom Osborne, John Pindar, Ian Gray, Peter Smart Smart, Susan E Kelly, Winifred Campbell, James Gardiner, Alyson Small, Lucy Conder, Maureen Eddershaw, David Pymm, Christine Clarke, Ivan Ambrose, Judith Northwood-Boorman, Noelle Paine, Berkeley Ranby, John Gostling, Ann Walker, Angela Rule, Andrew Hare and Christine Huxley

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