—Brian Christopher Jones, Liverpool Hope University
Through the eyes of many the UK House of Lords cannot seem to do anything right. Westminster’s upper house continues to be one of the largest and most disparaged institutions in modern times. Ridicule of the institution predominantly occurs because after more than a century of attempted reform the House remains unelected. Anytime the Lords attempt to assert their power as a counterweight to the Commons—no matter which party is in office—they get abundantly and ferociously criticised by politicians, the media and the general public as having little place in the UK’s current constitutional structure. In recent years the Lords has been described as “silly”, a “constitutional calamity”, a “ludicrous affront to democracy and accountability”, and a “flawed, undemocratic institution” that can engage in “constitutional coup[s]”. No wonder only 10% of the citizenry prefers the status quo for the law-making body. But if this bloated rhetoric truly was the case, the Lords would have been reformed or abolished long ago. The reality is that the Lords often provides invaluable expertise and scrutiny to government Bills expeditiously pushed through the Commons through programme and guillotine motions. And although it is acknowledged that problems with the Lords remain, this piece contents that after a century of such attempted reform, a middle ground must be found. My proposed solution primarily consists of implementing retention elections for the Lords—a sensible and moderate step to improve democratic accountability. However first a short anecdote is provided regarding a recent and unexpected triumph for the Lords; additionally, the collection of problems regarding reform is briefly addressed.
In late October 2015 the Lords were again significantly criticised after voting to delay cuts to a controversial tax credit proposal by the Conservative Government. The PM was described as “furious”, accusing the Lords of breaking a long-standing constitutional convention not to interfere in financial matters (known as the “financial privilege” of the Commons), and cautioning that there would be “plans for a ‘rapid review’ to examine ways to guarantee that the House of Commons always has supremacy on financial matters”. Yet in a monumental triumph for the Lords, just one month later the Government had an about-face, as the Chancellor of the Exchequer subsequently announced in his November autumn statement that the tax credit cuts would be scrapped. But this victory was less celebrated than one might imagine; apparently even when the Lords get it right, the tenuous nature of their position allows them little praise.
The array of problems with reform
Lords reform presents a multitude of difficulties, many of which are outside the scope of this short post. Nevertheless, a few problems can be mentioned here in short form to provide context to the situation. First, the method of appointment and the number of peers in the House remains undoubtedly problematic, as the Prime Minister essentially possesses free reign to “advise” the Queen on appointments. While this element provides difficulties, and appointments (or at least recommendations) by the House of Lords Appointments Commission in all instances would be ideal, retention elections could go some way to resolving this situation (as noted below). The size of the Lords has also swelled of late, no doubt because of political considerations. Some believe that the Lords should reflect the situation in the Commons; however with Commons elections increasingly subject five-year intervals and peers being appointed for life, this situation appears impossible, without severely and needlessly ballooning the Lords after each election cycle. The number of peers should be capped. After a large appointment of new peers a few months ago—a move criticised by many—the Lords currently contains 822 total members, consisting of 251 Conservative, 213 Labour, 204 Cross-bench and Unaffiliated members, and 111 Liberal Democrat peers, in addition to 26 Bishops and 17 peers from other parties).
Many would prefer the Lords to be directly elected and reformulated into a senate, a proposition that would fundamentally change Parliamentary dynamics. In particular, the Parliament Acts 1911 & 1949 recognise the House of Commons as the pre-eminent law-making body and the one most directly accountable to the people, and while it certainly may be changing, the UK constitution sees the Lords as a revising chamber with at times limited power to delay governmental legislation arising in the Commons. Some have also expressed concerns that a directly elected Lords would be overly—and perhaps too overtly—political, therefore potentially decreasing member expertise and increasing political animosity among the citizenry and the political branches. This is a very real possibility. One of the most unique characteristics of the Lords is the independent presence of cross-bench and unaffiliated peers, who perform a vital function in terms of legislative scrutiny and also balancing the populist streak of the Commons (in addition to balancing the power of the upper House). Under direct election, these peers would in all likelihood have to be replaced by political partisans, or at least decreased significantly. Holding in place this valuable independent element is crucial to the proposal of retention elections.
What are retention elections and how could they benefit the Lords?
Retention elections are commonly used in the US to supplement the appointment process of state judges (often a non-partisan process based around the Missouri Plan). Although such methods are highly problematic for maintaining judicial independence—considering that judges could potentially base important decisions around concerns for impending retention elections—they do add a method of democratic accountability to the positions, and could have significant value in the context of the current stalemate over Lords reform. In terms of operation, the elections usually occur from one to five years after appointment, and may recur throughout the duration of appointment (e.g., as they do in California). This method of recurring elections would seem to fit the life peer model currently operating at the Lords. In terms of the actual election, judges are subject to a simple up or down vote on their retention (i.e., the question usually asks whether the judge should be retained, providing “yes” or “no” options for the voter). Thus, the practicalities of retention elections as regards the actual vote are quite straightforward. In most cases judges are retained, but there have been high-profile instances where judges were ousted: infamously, three Iowa Supreme Court judges were removed after the Court voted to legalise same-sex marriage in the state.
Retention elections for the Lords could provide a number of advantages. They would undoubtedly make the House more democratically accountable, which is the primary reason the body gets so widely disparaged, and also one of the reasons the House cannot be more assertive in scrutinising legislation. Also, they would allow for cross-bench and unaffiliated peers to remain a central component in the Lords, retaining in the House a unique independent element. Further, such retention elections would also make Prime Ministers think more carefully about who they are appointing to peerages. If a choice would be so controversial that the person would be unlikely to survive a retention election, then someone less controversial, and perhaps more qualified, may get appointed. Additionally, and most importantly, the proposal ultimately provides voters the final say regarding who should serve in the Lords.
Of course, working retention elections into the mechanics of democracy is not easy. I acknowledge that the solution I provide here will be lacking detail, but the purpose of this piece is to get people thinking about alternatives to reform that are not “all-or-nothing” in scope. First, the intervals for how much time peers will serve before their retention election needs to be agreed upon. This could be in the range of 2-5 years. The staggering of retention elections would also have to be implemented, as only a certain amount of elections should be held on various dates (say, 1/3 or 1/4 of the House). This may mean that, depending on when they were appointed, some peers would serve longer or shorter terms than others who are also up for retention election. Next is to determine when the elections would take place: could they could be coupled with local, general or EU elections? This is a distinct possibility. Or, given that the Lords is a vastly important element of the UK constitution, retention elections could even be provided their own fixed date outside of the other elections. This would put the focus purely on the Lords itself, and may increase the visibility and knowledge of the elections, along with the activities of the Lords. Given that a large number of peers would have to be put forward at one time (depending on the size of the body), a separate election could be more practical. However let me stress that the proposal for retention elections should not be discounted merely because the elections could be troublesome to implement. The end goal is increased democratic accountability, and with that often comes increased sophistication and difficulty.
Both advocates and non-advocates of Lords reform may not agree with the proposal of retention elections, as the former may think it does not go far enough, and the latter may think it potentially goes too far. Fair enough. But after the last attempt at reform under the Coalition Government ended in frustration—the Bill was scrapped after its second reading in the Commons—it appears genuine Lords reform has been a dead issue. This is unfortunate, as the body actually performs its functions quite well, and deserves to be held in higher esteem not only amongst the British citizenry, but internationally. Retention elections could provide the democratic accountability the public so desires and could also help retain the independence and valued expertise of members, characteristics of which ensure the value and unique nature of the Lords.
Suggested Citation: Brian Christopher Jones, A Middle Ground for Democratic Accountability: Retention Elections for the House of Lords?, Int’l J. Const. L. Blog, Dec. 23, 2015, at: http://www.iconnectblog.com/2015/12/a-middle-ground-for-democratic-accountability-retention-elections-for-the-house-of-lords
 See, e.g., Chris Ballinger, The House of Lords 1911-2011: A Century of Non-reform (Oxford: Hart Publishing, 2012).
 However the review of Lords powers still proceeded, despite the change by the Chancellor on tax credits. Lord Strathclyde’s recommendations regarding the House of Lords powers on secondary legislation were announced last Thursday (17 Dec. 2015). He noted that the Lords should still be allowed to review such legislation and ask the Commons to “think again”, but that ultimately the Commons should be given the final say regarding passage (i.e., the Lords would no longer have veto powers for secondary legislation). Once again, the lack of democratic accountability in the Lords was raised as an issue. (see R. Mason, “Remove House of Lords veto power over some legislation, review recommends”, Guardian (17 Dec. 2015),
 Fixed-terms Parliaments Act 2011 c. 14
 What is certain is that the remaining hereditary peers (potentially along with the Bishops) should be eliminated from the Lords. There simply remains no justification for having such members revising and voting on laws.
 Meg Russell, The Contemporary House of Lords: Westminster Bicameralism Revived (Oxford: OUP, 2013).
 According to the YouGov poll, 60% of people said there were too many politicians in the Lords. However this poll also points out some elements of cognitive dissonance amongst the sample population, because 63% also said they would like the Lords would be mostly or entirely elected.