Three Cheers for the House of Lords | 12 October 2011

As a general rule complaints that the opposition are too beastly for words should not be taken too seriously. They reflect a sense of entitlement on the part of the governing party that, whenever it may be modestly frustrated, quickly becomes peevish, sour and silly. If this is true of parliamentarians it is even truer when considering the bleatings of partisan pundits cheering on Team Red or Team Blue. Again, if you judge these squabbling teams by different criteria then you forfeit some right to be taken seriously.

So it’s depressing to see a commentator as urbane and generally sensible as Benedict Brogan make such an ass of himself in this piece about how nasty Labour types and “organised” Crossbenchers are – the beasts – frustrating the government in the House of Lords. All this is new, he says, because Labour are bringing parliamentary tactics from the Commons into the rareified air of their Lordships domain. Well I never! And since Labour are the largest single party in the Lords this means the Lords is challenging the Commons in ways it should not.

Hooey. Let their Lordships challenge an overmighty Commons all they like. Good luck to them. A coalition cobbled together in the Commons – no matter how preferable it may have been to the alteratives given the election result – cannot and should not expect an easy ride in the other place. This too is good and welcome since, heaven help us, checking an overmighty executive is something that should happen more often, not less frequently. This is useful even if it inconveniences a government that, broadly speaking, one might support.

Quite spectacularly, Brogan also fails to mention that for decades the Conservatives enjoyed an enormous majority in the Lords. True, they did not always deploy their hereditary advantage but the threat of doing so was often enough to warn off Labour governments. I am not sure many senior journalists at the Daily Telegraph considered this a grievous affront to anything back then. And nor should they have done.

In any case, let us try and avoid exagerrating the level of obstructionism in the Lords. As Brogan puts it:

Between them, the Conservatives and Lib Dems have a notional majority. But not if you take into account the crossbenchers. Peers who sit as independents and do not take a party whip make up a significant number of the House’s more than 800 members. They used to serve as a reservoir of spare votes for the main parties, their support varying depending on the issue in dispute. Their strength was usually dissipated by the range of their opinions, often with just as many voting for something as against it. That has changed. For some time now, they have been formally organised, with a convener acting as shop steward. A study of the division lists shows how crossbenchers are increasingly voting as a block with Labour against the Coalition. The Government has been defeated on a fifth of divisions in the Lords since last May – 23 out of 111. On 10 of those occasions in the past year, on major Bills on issues such as AV and the EU, crossbenchers have swung decisively against the Coalition.

Well! A better appraisal would note the fact that the government, whatever its divisions, commands a hefty plurality of the upper house. For that matter, if the government has only been defeated 23 times in 111 votes and if only 10 of those defeats have owed much to crossbenchers then, gosh, the level of lordly obsctructionism neither seems very high nor, frankly, quite high enough.

For all its strengths this government, like all its predecessors, does not want for ill-considered or rash legislation. A proper Tory perspective on this might conclude that some level of obstructionism is useful, not a threat to the future governance of the country. A revising chamber that does not revise is not much of a revising chamber. And if the government cannot persuade the Crossbenchers then there’s a good chance its proposals merit reconsideration.

According to Brogan, however, Downing Street does not see it this way:

In fact, this newly confrontational House of Lords presents Mr Cameron with a wider political difficulty. Until now it was assumed that Mr Clegg’s plans for a fully or partially elected second chamber or senate were destined to remain in the pending tray, discussed but never done, a victim of political inertia. But the transformation of the Lords over the past year from an apolitical and unelected house to one that is both unelected and now highly politicised means it might no longer be possible to put off reform. Viewed from No 10, the House of Lords poses one of the biggest threats to the success of the Coalition, and needs to be fixed.

I dare say that is “the view from No 10”. We are not obliged to share that view. Nick Clegg’s proposals are a mess and should be shelved. But Brogan is well connected, however, and concludes:

In most ministerial meetings these days, you will hear the phrase “we might have problems with this in the Lords”. As a result, ministers are clamouring for corrective action to restrain Labour excesses. On the Tory side, work is being done to draw up procedural changes that will mean an end to the House’s most cherished freedoms of debate. If Labour peers, with the help of sympathisers among their crossbench and Lib Dem colleagues, carry on behaving as if there are no rules, then, as one Cabinet minister describes it, “they will be digging their own graves”.

But what if Labour’s oppositionist tactics have another effect? An Upper House that no longer respects the supremacy of the elected Commons by trying to scupper its programme cannot be allowed to continue in its unelected state. If it wants to play politics, then it should first have legitimacy. In the coming months, the Lords will test the patience of the Coalition. And Mr Cameron in turn may begin to wonder if Lords reform might not be worth ramming through sooner rather than not at all.

This is another bad idea and it would be typical to dismantle one part of the constitutional arrangement that, however illogical it may be (though why that should trouble Tories must also remain a mystery) actually works in favour of fresh rules and systems that injects still more politics and partisanship into a system that needs no more of either.

House of Lords reform is not a subject to excite the masses but, generally speaking, when the government feels it needs to start rigging the game that’s an indication that its arguments are not strong enough to prevail by more open, honest means. Perhaps Labour’s obstructionism is more “organised” than Tories have been in the Lords before now but, frankly, I have a tough time believing that is really the case.

More to the point, an elected Lords is a dreadful idea and, just as importantly, an unecessary one. There certainly are some problems with how the house is selected these days but the answer to that may lie in a) making fewer appointments and b) inviting nominations from a wider range of voices. The strength of the House of Lords lies in its “illegitimacy” and if a government wins more than 80% of votes in the upper house I cannot agree that the supremacy of the Commons is really being challenged or that their Lordships are over-reaching themselves. Maybe they are but Ben Brogan has not made that case. He would, in any case, be on firmer turf if the coalition’s programme were itself not a hastily cobbled together thing that, for all its sense, is not quite what many people thought they were voting for last May.

That’s fine too and I consider this an entirely legitimate government but it is still a coalition and as such may reasonably be thought open to greater challenge in the Lords than might other, stronger ministries. In the end the House of Lords makes “no sense” but it works reasonably well and Tories ought to welcome the fact that this still seems to be the case even if, inconveniently, it means some Tory preferences are stymied from time to time.