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What is the point of the House of Lords? What should it be? In order to properly assess the function of the House of Lords it must be seen in relation to the holistic function of Parliament as a whole. Since Parliament’s function is legislative, the House of Lords is first and foremost a legislative body. The traditional bicameral characterisation of the Commons as the proposing and ratifying chamber, and the Lords as the revising and scrutinising chamber, is indicative of the Lords continuing relevance to the legitimate enactment of legislation. However the maxim, ‘what the crown-in-parliament enacts is law’1, highlights a second function of the House of Lords; that of keeping the executive government accountable. Law is created by the crown in Parliament, (as opposed to with or as well as), implying that in a Westminster-style system it is impossible for the legislature to be genuinely independent of the executive.2 Therefore the House of Lords provides a less party-political and executive-dominated chamber, so as to keep the ‘Ministers of the Crown’3 (the government) accountable. Yet the empirical question of what the point of House of Lords is, is inextricably linked to two further normative questions. Should the point of the Lords be to revise and scrutinise legislation whilst keeping the government accountable, and if so, how should the House of Lords best fulfil these functions? While some might argue that without a democratic mandate the House of Lords loses all functional credibility rendering it pointless, it is instead submitted that an unelected House of Lords, separate and distinct from the elected Commons, is precisely what enables it to fulfil its role as an independent and effective scrutiniser of government. The Lords is principally a legislative chamber, scrutinising and revising invariably executiveproposed legislation. The Commons is where legislation is initially proposed, and ultimately ratified; yet between a law’s inception and actualisation, the Lords serves to analyse and, if appropriate, amend, said legislation. The distinctive procedures of the Lords, with its ‘committee of the whole house’4 and allowances that any amendments tabled may be moved, is specifically designed to facilitate the submission and consideration of amendments.5 Members of the Lords analyse each Bill line by line,6 compensating for timetabling defects in the Commons which often means that only part of a Bill has been considered in detail by MPs.7 In this way the Lords effectively performs its function of legislation revision (via amendments) and scrutiny (by the committee). Yet the scope of its legislative function extends beyond the minutiae of specific Bills, and into the macro sphere of public policy in general. House of Lords Select Committees investigate public policy, proposed laws and government activity. They offer a non-partypolitical look at issues (which the government might seek to address with legislation), gathering and evaluating evidence, before publishing findings in a public report. These reports stimulate parliamentary debates and highlight issues to the public, aiding the Lord’s second function as an accountability forum. The effect of bicameralism and the work of the Lords, should not be assessed purely with regards the isolated body of Parliament. Instead, as 1 Martin Loughlin, ‘The British Constitution: A Very Short Introduction’ ch.2 2 Waldron, ‘Bicameralism and the Separation of Powers’ (2012) 65 Current Legal Problems 31 3 Ibid 4 Bradley and Ewing p.204 5 Clarke and Shell [1994] Pl 409, 412. 6 https://www.parliament.uk/business/lords/work-of-the-house-of-lords/what-the-lordsdoes/ 7 Bradley and Ewing p.205

Waldron asserts, ‘we should always understand formal deliberation in the legislature as something connected to, and helping to focus, and being affected by informal deliberation in civil society’.8 This ‘informal deliberation in civil society’ is exactly what Bovens characterises as public accountability.9 Not only is the Lords an accountability forum when taken in isolation, but the polycentric and public nature of its work enables public accountability to be exercised outside of Parliament. This public accountability is an essential condition for the democratic process, and it is interesting how a body so often characterised as anachronistic, and undemocratic, does in fact serve an effective democratic function. This inter-relation between the Lords’ legislative and accountability functions can be specifically shown through the case of Animal defenders International10. The case was concerned with whether the UK’s statutory ban on paid political advertisements was incompatible with article 10 of the ECHR, and whether the legislation had been appropriately enacted in accordance with the procedure set out in s.19 HRA 1998. The court held that the ban was not incompatible and their judgement seems to have been heavily influenced by the work of the Joint Committee on Human Rights. The purpose of this body, comprising members of both Commons and Lords, is to assess the legitimacy of the legislation with regards Human Rights, and in so doing keep the government publicly accountable. With regard the specific legislation in question, the Committee had been satisfied that the course of action taken by the government ‘evinced no lack of respect for human rights and was legitimate in the circumstances’. Not only was the content of the legislation scrutinised, but the conduct of the executive (specifically its use of procedures detailed in s.19 HRA), was also assessed and deemed legitimate. The court’s final judgement seems influenced by the initial work of the Joint Committee and the credibility of its findings given that it consisted of ‘members of both Houses’. Joint Committees such as these, and House of Lords Select Committees, are credible executive account-holders, by virtue of their separateness from the executive-dominated party politics of the Commons, further demonstrating the continued relevance and virtue the Lords offers to the democratic process. However, although the House of Lords has a substantive effect on legislation and strong political power, it lacks hard legal power over the ultimate (non)enactment of legislation. The Parliament Acts 1911/49 have severely limited the Lords veto power, leaving the power to delay but not outright block legislation, meaning the Lords is not a constitutional protection in the same way the Courts (through judicial review) are.11 Nor should they be, as Bogdanor states, ‘if one is looking for an upper house with the authority to fulfil the function of constitutional protection the conclusion seems inescapable that it must be an elected body’12. The point of the House of Lords is not, and should not be, to frustrate the ascendancy of the Commons with its democratic mandate. According to Norton, the principally appointive nature of the Lords (since the House of Lords Reform Act 1999 reduced hereditary peers from a majority to an anomaly), enables them to be expert, independent, and impartial 8 Waldron, ‘Bicameralism and the Separation of Powers’ (2012) 65 Current Legal Problems 31 9 Bovens, M. (2007), ‘Analysing and Assessing Accountability: A Conceptual Framework’ European Law Journal 13: 447–468. 10 Animal Defenders International [2008] UKHL 15 11 Waldron, ‘Bicameralism and the Separation of Powers’ (2012) 65 Current Legal Problems 31 12 V Bogdanor, Politics and the Constitution: Essays on British Government

executive account-holders,13 albeit with limited ‘sanctioning’14 power. Bovens would see no problem with this, reminding us that accountability is not to be equated with control; the House of Lords need not control the passing of legislation in order to scrutinise it. However, simply because the Lords lacks legal power and control over the Commons, it does not follow that it ought to lack these powers and functions. This question of what powers the House of Lords ought to have, is part of the much wider normative question of what the function of the Lords should be in the first place. Firstly, it seems self-evident that the House of Lords should not be pointless, since if it is pointless it simply should not be. In fact the argument to dispense with the Lords is premised on the assumption that the chamber lacks purpose, or more nuancedly, that any purpose it does have can be subsumed within the pre-eminent Commons. Both renditions of this argument attack the very proposition that a bicameral legislature is a constitutional virtue, an assertion that Waldron clearly refutes. He argues that to simply have two separate chambers which lack qualitative difference is itself a virtue, since it aids and produces debate surrounding legislation. As he asserts, ‘[similar people] talk about things in different places in different combinations with one another, in different ways.’15 Therefore, even if the Lords were elected and operated in a manner similar to the Commons it would still serve a purpose. Not least because of the aforementioned point that having a discussion in a second chamber is not an isolated action and contributes to public engagement with issues. Therefore a second chamber (the House of Lords) ought to exist. Moreover, the fact that the Lords is qualitatively different, gives it further purpose. The key to bicameralism is difference since ‘if the second chamber offers nothing different from the first then it is redundant’16. Not only should a second chamber exist, but it ought to be different from the first. A third normative requirement is that this second chamber must not merely be separate, rather it must also be independent, especially of the executive. Described by Waldron as the ‘most important difference’ of the second chamber, this is also the strongest reason for maintaining an unelected House of Lords. Bagehot wrote ‘that the efficient secret of the UK is the nearly complete fusion of the legislative and executive powers’17, and consequently Westminster-style parliament is one in which the executive sets and dominates the legislative agenda. The two-party adversarial system, combined with the system of whip-based governance means that Lord Hailsham’s ‘elective dictatorship’18 is an intellectual inevitability, unless the legislature is bicameral. Waldron, himself a supporter of elected ‘upper chambers’, notes the difficulty of keeping a second chamber independent from the executive if it is elected; election leads to politics, which leads to party politics, which is inevitably dominated by the executive.19 Yet even the current House of Lords is not entirely 13 P Norton, ‘Parliament: A New Assertiveness’ in Jowell, Oliver and O’Cinneide, The Changing Constitution (OUP, 2015) 14 Bovens, M. (2007), ‘Analysing and Assessing Accountability: A Conceptual Framework’ European Law Journal 13: 447–468. 15 Waldron, ‘Bicameralism and the Separation of Powers’ (2012) 65 Current Legal Problems 31 16 Jeremy Bentham to his Fellow-Citizens of France, on Houses of Peers and Senates 17 Bagehot, ‘The English Constitution’, p.65 18 "Elective dictatorship". The Listener: 496–500. 21 October 1976. 19 Waldron, ‘Bicameralism and the Separation of Powers’ (2012) 65 Current Legal Problems 31

independent of politics. The majority of Peers are now appointed by the executive, and it seems to be commonly accepted amongst politicians that the executive party should be the largest party in the Lords during its time in governance. At first this may seem completely at odds to the former argument which favoured an unelected Lords due to it being apolitical, however the politicisation of the second chamber is not binary but a matter of degree. Peers are not, and must not, be politicians, but that does not preclude them from possessing political persuasions. Moreover, the Lords must be independent of the executive to the extent that noone party should have an overall majority so as to frustrate the governing party (as was seen with the 1995 Labour government and a Conservative Lords majority). Peers can be political, however the chamber taken as whole must not be subject to the same majoritarian composition of the Commons. If the second chamber is to serve a purpose it must be more independent of the executive than the first, without being so independent that it could be diametrically opposed. The current House of Lords, post the Reform act in 1999, appears to be successfully achieving this balance. Finally, if it is accepted that the House of Lords ought to exist as an entity both separate and independent from other state actors, for the purpose of keeping the executive accountable and scrutinising legislation, then the question of what power the House of Lords requires in order to fulfil its function can now be assessed. Whereas previously an Act of Parliament had to be approved by both the Commons and the Lords, after the Parliament Acts 1911/49, an Act can now receive the Royal Assent having only been passed by the Commons. The substantive effect of this has been to replace the Lords’ legal power, with political power. In the same way that Parliament can legislate contrary to human rights, but must accept the political cost (Simms20 principle), Parliament can now legislate without the consent of the Lords whilst accepting any associated political cost, as was seen in Jackson. Although obiter from AXA and Jackson may suggest a potential limit on that power, generally speaking the Lords consent is no longer legally required, and it is submitted that this is also how it ought to be. The ascendancy of the Commons and its exercise of Parliament’s legislative supremacy is a consequence of its democratic mandate. Correspondingly, the unelected nature of the Lords means it should not exercise such legal power and must instead rely principally on political pressure for the legitimate performance of its legislative and accountability functions. The House of Lords is, and should remain, a primarily appointive chamber. Its functions as a legislative scrutiniser, and forum for executive accountability, should continue to be performed through political pressure, as opposed to legal enforcement.

20 R (Simms) v Secretary of State for the Home Department [2002] 2 AC 115...