Don't replace the Lords - split the Commons

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There is a lot of support for getting rid of the Lords, but what is less clear is what the problem we’re trying to solve beyond that. If we’re replacing them with an elected chamber, what are these new politicians for?

There are a few answers to this but, here’s my pitch on the problem: Parliament has poor legislative scrutiny and passes worse laws as a result. We should design institutions that do better at this.

This is not a controversial goal - in fact it is the cornerstone of the House of Lords defence. As the argument goes, we need something semi-disconnected from the party-political system that can ask important questions scrutinising the details.

My previous go at “what to do with the Lords” described how you could fit a technocratic chamber in an elected framework - a drop in replacement for the current Lords that reconciles technocratic goals with elected means.

Here I’m taking a different approach. This version maps out the strong case for a fully elected second chamber where its members are recognisably elected politicians. The goal is not to work well with the Commons as it exists, but to fix a way the Commons is broken.

This is a pitch that we should be moving towards what Steffan Ganghof calls a Semi-Parliamentary system - defined by a fused executive-legislature in Parliament, but with a separation of executive and legislative functions within that Parliament. This is a system that's practically rare (Australia is one of the key examples), but helps step around some of the trade-offs between different approaches and is a logical extension of the current Westminster system.

I'll describe what a version of this could look like in the UK, and then explain what these features achieve.

Key features

• There are two chambers, an inner¹ government chamber (let's say members are GcMPs), elected by a majoritarian system, and an outer legislative chamber, elected by a PR system (LcMPs).
• These are elected for equal terms at the same time. There are two ballots, asking which party you would like to form the government, and which party you would like to represent you in the legislative process.
• Only the inner chamber can participate in confidence votes.
• The outer chamber had an absolute veto over legislation.

What is this doing?

The combination of these rules splits apart the government support and legislative scrutiny parts of MPs roles. The problem we’re trying to fix is that MPs have several jobs, and are structurally bad at one of the important ones: making good laws. Fixing this within the current system is possible, but causes problems for their other roles.

In the current Commons there is both strong party discipline and government dominance of the chamber. This creates barriers for MPs individually or collectively to substantially improve bad legislation. When the government requires confidence from the Commons, it’s hard to substantially increase legislative independence. Weakening party discipline to encourage more dissent and improvement from government party MPs is possible - but weakens the voters->parties->representatives agent relationship.²

The hope of semi-parliamentarianism is to uncouple some of these issues, without taking on the substantial problems of presidential systems in concentrating power in an individual. The executive having its base in a Government chamber allows the Liz Truss solution to poor executive leaders - there is a collective with the power to replace government leadership. Meanwhile, by giving the outer chamber a substantial role in legislation (through a non-overridable veto) you effectively shift substantial legislative activity into that chamber (as that’s where the key veto players are).

The combination of these improves the substantive ability of legislators to do good legislation by breaking executive dominance (via PR in the outer chamber), without requiring PR-style coalitions for government formations. Rather than replacing the Lords as is, we’re splitting the role of an MP up to achieve the same goals more effectively.

Who does what?

The business of the inner executive chamber would be government confidence, setting the legislative agenda, initiating legislation, and executive scrutiny functions. Generally, members of the cabinet and shadow cabinets will be in this chamber³. Royal prerogative powers are vested in this chamber rather than the prime minister as an individual.

The business of the outer legislative chamber is substantial legislative scrutiny and amendments, structured through standing committees examining similar groups of legislation (health, education, etc). In this chamber, the government must build issue by issue coalitions with the range of potential partners.⁴ In practice, most of the Parliamentary time spent on legislation happens in this chamber.

Joining up multiple reform aims

To join democratic and technocratic support we need to be clear on purpose, and what would be improved by adopting the reform. This reform has a clear core purpose: a better legislative process. But at the same time it also works well with other devolution, constitution-guarding, or anti-corruption motivations for Lords reform.

Entrench and support devolution

The key goal of Labour’s Commission on the UK’s future was creating a second chamber that can entrench devolution with a veto on legislation affecting devolution. This does that and more. As proposed in the Electoral Reform Society’s Unfinished Business report, devolution and nations/regions can be inherent in the structure (e.g. LcMPs can be elected from party lists by nation/region). But the real benefit for devolution is not that the lists are by region, but that the system can work without formal coalitions in the outer chamber.

Splitting legislative power among more parties enhances a political constitution with more barriers to affecting constitutional statutes. Constitutional change would at the least no longer be a one party matter. This kind of hard backstop is vital for soft power approaches to protecting constitutional norms to succeed.⁵

This does not inherently create a lock around constitutional questions, but makes change harder, and encourages new mechanisms for a more consensus-driven approach to constitutional change.

Standards and anti-corruption

Part of my journey to strongly valuing an elected chamber of full-time politicians is that the House of Lords is a massive liability and causes constant damage to the democratic system by continuing to exist. The functional bits of it are fused with corruption and cronyism that undermine faith and trust in democracy.

This can be improved, but a fusion of expertise and legislator access is hard to manage because conflicts of interest are part of the point. A strong benefit of a chamber of professional full-time elected politicians is they can be held to ethical standards around conflicts of interests.

We can do better than the Lords for having expertise in the loop

One of the challenges for Lords reform is there's a constituency who like the idea of structured expert input on legislation and defend the current system as an imperfect but improvable take on this.

My view is that while the Lords adds value, it is much worse at the outputs that its supporters value than a replacement chamber could be. Appointed Lords reformers are trying to push the chamber towards the best version of the current model, but at the cost of the much better approaches that are possible looking further afield.

The current Lords has developed a role as a patch on the problems of bad scrutiny in the Commons, where intra-party conflicts can play out elsewhere. Because it can only suggest amendments, the Lords dynamic is an extension of the Commons dynamic. Part of what is happening in the initial Commons phase is government backbench MPs are signalling to both the government and the Lords their concerns with the legislation by advancing and then withdrawing amendments (questioning but loyal). The Lords then understand what issues there might be a constituency for accepting amendments (and behind the scenes there will be conversations about this), the amendment comes back from the “Lords”, and the government accepts. An internal party conflict is managed through the appointed chamber.

While the Lords have persuasive power, if there is no constituency for an amendment in the governing party, it cannot succeed. If the problem the Lords is trying to fix is bad legislative scrutiny, we should create institutions that are good at that, and this ultimately means the ability to kill legislation when the premise is bad. Expert input into a legislative chamber without a government majority would be more effective at improving legislation than experts directly drafting amendments to be rejected.

And we can think about how we can do that expert input well. Where I would miss the Lords is the committee system and associated reports. But if aiming at the learning function, there are a diversity of institutional approaches that are not blocking a good legislative institution in the same way the Lords is.

Fans of an appointed Lords should think about what new approaches would look like if you took away direct involvement in legislation. You could for instance have a new institution overseeing and directing an improved public inquiry system (or to combine with a future point, deliberative exercises). This could be based in Parliament, run by a board that would be the spiritual successor of the expert-centric version of the Lords. This board may or may not have elements of involvement from the two chambers (managing appointments, etc), and would indirectly contribute to the legislative process by producing knowledge and reports relevant to both the current agenda and long term issues that should be on the agenda. This might in turn act as a trigger for legislation initiated through the outer chamber.

Basically, we should think about a range of different institutional approaches and think about how to structure them constructively rather than trying to solve six problems with one institution.

Wrap up

None of this is hugely off the beaten path of Lords reform. I think the key uesful element is having a clear destination of a semi-parliamentary system (and thinking through what that would mean in a UK context). This gives a clear throughline on the kind of problem we're trying to fix, a sense of the end state, and with some good evidence on how this works in practice.

What I haven't really got into is the "how does this actually happen?" story because obviously, Lords reform is hard.

There are some upsides to this from an "I am an existing large party running a majoritarian government" approach - in that it makes it easier to be a stable minority government. Obviously that's less than what's currently possible (complete control of legislative process) - but this is also just getting really unstable and less guaranteed anyway. And an upside in that when you lose (which is going to happen sometimes), there's a bit more power than there would be otherwise.

Something I think is necessary (but not sufficent in itself) is to get the appointed Lords fans to see the benefits of an elected framework as a better way of achieving their goals. Whenever there's as bit of energy towards an elected Lords they are the persuadable part of the coalition against. This is meant earnestly, with a real concern for discarding working processes for unclear goals, but in practice they're not getting the small reforms they want either. We need to get them to accept that real progress here needs a big leap, not into the dark, but a well-planned journey with clear goals we can bring everyone along with.

We need the technocrats to be "yes, and" to an elected house - proposing complimentary structures that bring what they value along for the ride - rather than the current situation where their advice is always to slow down (meaning that people who like the Lords because of the cronyism have a nicer argument to hide behind).

The big appeal of semi-parliamentarianism is by unlinking several otherwise opposed features we can move past trade-offs in current arguments. We need to go further to show how more ideas of what a good second chamber look like can live side by side.

Loose notes

This is getting a bit beyond the core argument, but there’s a few implications of Ganghof’s exploration of the features of semi-parliamentary democracy (including those not yet shown by any existing system) that are worth working through.

Vetoes

The key bit of constitutional engineering is that the outer chamber has a full and non-overridable veto on legislation - which is the lever that the focus of legislative activity into that chamber.

If the inner chamber also has a veto is a matter for debate. It's not required for the semi-parliamentarian definition, and you could see it both ways. Giving it an overridable veto might be a practical step.

An inner chamber veto would prevent outer-originated legislation or amendments against the government agenda becoming law. It would also give the government more negotiating power and horse-trading between different legislation.

This is also more conditional than a ‘presidential veto’ as it’s not power of the prime minister but of the chamber - meaning in principle parts of the government's internal coalition could prevent the veto being used.

Applying to devolved parliaments and local government

One of Ganghof's useful insights is that this approach does not need to be bicameral. An inner executive group inside one chamber that has the power of confidence motions can achieve the same features. For example, in a pure PR chamber, the rule could require higher percentages of the vote for inclusion in the group (mechanically, you’d have two ballots, one sets the composition of the chamber, and the other sets if a party has the right to participate in confidence votes).

This makes this a viable strategy in places a second chamber would be too small to be viable. You could even apply this to local government as an alternate form to mayors in separating executive appointments in local/regional government.

Not many more politicians

An objection to an elected second chamber is creating more politicians, but as part of this is taking responsibility away from the primary chamber, it could be paired with a redistribution between the chambers.⁶ You could imagine two chambers, one of 400 MPs and one of 300 MPs - which is only 50 more than the current Commons. This doesn’t necessarily have to be at the same time.

A related point is that Ganghof argues if the inner chamber is taking care of government, while the other chamber has more of a role in legislation - it would make sense for the second chamber to be larger. This isn’t a required starting point though, and if valid could sort itself out over time.

Sorition

My previous go at this integrated a sorition element to either appoint or decide how to appoint representatives for non-voters. This could be used in this case, but I've also become increasingly keen on compulsory voting (while we’re stealing from Australia) which makes this a bit more redundant.

My opinion of a full sorition appointed “House of Citizens” (or similar) is it is trying to fit sorition into the model designed for politicians - and it doesn't need to be a full chamber to be substantially useful to the process.

One of the current uses of citizens assemblies is breaking deadlocks when power is divided. This is more likely in a PR chamber. Giving the new chamber the power to commission deliberative processes would better incorporate the current model of citizens’ assemblies while giving them a clear route to have a meaningful impact.

Basically we should encourage diversity of institutions and approaches that incorporate sorition. For instance, “citizens’ agenda” devices where assemblies work as a filter/enabler of referendums/people’s vetoes. e.g. petition can trigger deliberative exercise that can in turn trigger public vote or recommend legislative process. Elements of sorition can unlock a wider democratic space beyond the parliament.

Electoral systems and constituency link

After Ganghof identifies existing systems that fit the definition of semi-parliamentarianism, he goes on to discuss constitutional arrangements that would lean into the idea more.

For the government chamber, Ganghof suggests a Party List AV system - where voters rank parties in order of preference, and the lowest scoring party is eliminated until one party has a majority. Seats are then assigned by party list.

The purpose of this is good majoritarian electoral systems are hard to find these days. Neither FPTP or AV guarantees the winning party a majority. Party List AV is an approach for replacing a majoritarian election of a single role with a majoritarian chamber that elects a collective.

There’s a few reasons not to lean into this in a UK pitch, although it's useful to think about. A more powerful outer chamber changes the nature of the inner one, but it'd be best to let this emerge slowly.

Changing the Commons electoral system is not necessary to get the benefits, and opens questions about the constituency link. UK MPs currently have a rule as a state interface/ombudsman - and it makes a certain amount of sense for this apolitical role to be handled by the GcMPs (as the link to government and frankly as something to do if you haven't decreased the numbers). A move to AV would solidify this by ensuring your GcMP spoke for a majority of their constituents. This is not to say this is the ideal arrangement, but is a way of sidestepping changing more at once.