The move to reform the House of Lords by replacing appointed members with elected ones is driven by the premise that it will be more democratic and accountable. But according to the Bill published this week, it is intended to provide expressly that the Lords will be inferior to the Commons in that if the Commons wants to have their way, and the elected Lords resist, the Commons will prevail. This is to be achieved by continuing the relevant provisions of the Parliament Act 1911 in the new regime. There are two problems with this. One is that it is wholly unconstitutional to plan to drive through reform of the Lords by using the Parliament Acts and at the same time to replicate the constraints of those Acts in the new law; the other is that the public will be cheated of the promised democracy.
The preamble to the Parliament Act 1911 stated that it was being passed as a temporary measure until such time as the Lords became an elected chamber. So the Parliament Act-enshrined supremacy of the Commons was meant only to be in existence as long as the Lords were appointed, and to come to an end once they were elected. There is also a strong case in law for saying that the Parliament Acts cannot be used to force through a complete change in the Lords, especially one whereby they will in future have the same attitude towards general elections as do the MPs. (The Commons cannot under those Acts delay an election without the Lords’ consent, which was always considered not to be forthcoming without exceptionally good reasons.)
Secondly, if the public are being told that they can elect their Lords, who will represent their interests and be accountable to them, why should the Lords not then have as much say in the legislative process as the Commons? It is a deception to sell this reform on the basis of the democratic principle, and then subvert it. The end result, if the Bill were to work as the government currently intend, would be a Commons even more uncheckable than now, and both sets of legislators under the thumb of the elective dictatorship, (Lord Hailsham’s phrase to describe how the government always gets its way because it can whip MPs into submission.) Under current procedures, the Lords eventually do give way to the will of the Commons, after some delay, because they are unelected. This will no longer be the scenario.
Never has so much damage been inflicted on the constitution by a party with so small a share of the popular vote.