Some time ago, Law and Lawyers looked at House of Lords reform - Plantagenet Palliser - after 100 years, will Lords reform arrive?
A basic democratic principle is that those who make the law should be elected by the people through a system of universal franchise. This is recognised by Protocol 1 to the European Convention on Human Rights:
ARTICLE 3 - Right to free elections
The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.
Given that the House of Lords is wholly unelected, it fails to come anywhere near this basic democratic principle. This is not to say that the Lords has failed to do a good job in terms of improving Bills and, on a number of occasions, the Lords has shown itself to be more supportive of civil liberties than the elected Commons. This may be due to the abilities of many of the members who are often less fearful of the political party machinery. However, for reasons which I hope
to set out in a later post, I believe that this is a seriously flawed Bill. For example, the Bill takes no account of the plans for Scotland where a vote on independence is planned. I also believe that the introduction of the Bill at this time demonstrates some odd political priorities given the massive economic and other problems facing the country. Nevertheless, at least the principal political parties can claim to have a mandate for some form of Lords reform.
What I have referred to as a "basic democratic principle" has not gone unchallenged. For example, Professor Sir John Baker, Downing Professor Emeritus of the Laws of England at the University of Cambridge, challenged "the widespread assumption that the House of Lords must be elected as a requirement of democracy. That seems to me to be quite a serious fallacy given the unusual nature of our constitution" - The House's essential scrutiny role "does not require the sanction of the ballot box to give it legitimacy any more than the judicial role, because the House of Commons can insist on the last word"- [for this and other views see the Joint Committee report March 2012 - The principle of an electoral mandate].
Turning to the Bill itself - a first point to note is that the government has not given the Bill a statement of compatibility with the European Convention on Human Rights. The Deputy Prime Minister has made the following statement under section 19(1)(b) of the Human Rights Act 1998:
I am unable to make a statement of compatibility under section 19(1)(a) of the Human Rights Act 1998 in respect of the House of Lords Reform Bill. This is only because of clause 6, which applies to House of Lords elections the laws on entitlement to vote at House of Commons elections, including the rules which prevent prisoners serving sentences from voting. The Government nevertheless wishes the House to proceed
with the Bill.
The government has an international obligation under the Convention to implement the recent ruling of the European Court of Human Rights in Scoppola v Italy . If this is done then this problem would fall away and the Bill might become compatible with the Convention.
Steps taken prior to the latest Bill:
The government prepared a DRAFT House of Lords Reform Bill which was subsequently considered by a joint committee which reported in late March 2012. The earlier post on this blog considered the DRAFT Bill - Plantagenet Palliser - after 100 years, will Lords reform arrive?
With regard to the Lords becoming elected, the Joint Committee concluded, by a majority, that the reformed second chamber of legislature should have an electoral mandate provided it has commensurate powers.
The committee's report is essential reading for a full understanding of the various concerns which arose in connection with the draft Bill and some of those concerns are likely to be raised again as the latest Bill passes through Parliament.