A superior class of Lords: The Upper House needs reform, but an elected chamber might not work, argues Hugh Montefiore

THERE is just time before another general election to do something about the House of Lords. The present situation is hardly tolerable, not merely because a person may qualify for the legislature by accident of birth, but because the present House is not clear about its relationship to the Commons. One of the best recent examples concerned the Railways Bill. The Lords did not persevere with its amendment to the Bill, which would have allowed British Rail to tender for all franchises. This was because there was doubt whether persevering would amount to a direct challenge to government - or would simply alter a government Bill.

The Bill was deeply unpopular in the country, and had to be whipped through the Commons. The Lords could have carried this amendment, thus reducing the scope of rail privatisation. But ambiguity about its proper functions prevented this.

The Tories, with an inbuilt majority in the Lords, are disinclined to take any reforming action. Labour in its 1992 manifesto promised to replace the Lords with an elected second chamber which would have the power to delay, for the lifetime of a parliament, changes to legislation that reduce individual or constitutional rights. The Liberal Democrats also support reform: a senate as a second chamber, elected regionally, which would have power to delay all legislation other than money Bills for up to two years.

There are four possibilities: retention, reform, replacement or removal. Although the Upper House can function quite well, retention in its present form must be resisted. Ambiguity about its functions must be resolved. Hereditary peers far outnumber life peers, and noble birth is no qualification for law- making in a democratic land. A representative monarchy does not need buttressing by an Upper House of nobility. The present system gives an automatic majority to one political party.

At the other end of the spectrum, removal of the second chamber could give unbridled power to the House of Commons. A government granted an elective dictatorship for five years could have too few restraints on its powers. In any case legislation, often hurriedly forced through the Commons, needs a revising chamber where it can be considered by experts at greater leisure.

There remain the options of reform (which would involve a gradual process of change) or the replacement of the present House by a different kind of body, probably elected and with diminished powers.

During the 20th century there have been attempted reforms of the Lords - some successful, some not. Conflict between the Liberal government and the Lords gave rise to the Parliament Act of 1911. The Lords could no longer amend money Bills, and the Commons could overrule the Lords on other matters after a set time. In response to this the Lords settled for a quiet life: the House was described as 'dying in its sleep'. Following what was called the 'Salisbury convention' the Lords would not divide at second reading on any government Bill contained in an 'election manifesto'. In other Bills, the House could determine that a Bill be read again 12 months hence, which in effect nullified it.

The Life Peerages Act, 1958, breathed new life into the House, bringing into being 'working peers'. This meant that it was no longer exclusively aristocratic. The Peerages Act, 1963, enabled people to disclaim their peerages. (Eleven have done so, but the sons of two of these have reclaimed them.) The 1963 Act also enabled peeresses to sit in their own right, and this (together with the appointment of life peeresses) has enabled women to play a part. It would be intolerable to pay salaries to those who by virtue of birth are members of the legislature; but allowances have been introduced to cover travel, subsistence and research assistants.

When Labour returned in 1964 after 13 years of Tory government, more reforms were planned. Inter- party talks took place, which were broken off when the House of Lords in 1968 refused to pass the Rhodesian sanctions order. None the less a White Paper received the approval of both Houses, and a Bill was introduced which was enthusiastically accepted in the Lords. The Conservatives, thinking to disconcert Labour, withdrew support at committee stage. The Bill was complex and the Labour government lacked the political will to get it through. It dropped it. MPs were suspicious of the Lords' approval - a reconstituted House of Lords, efficient and no longer anomalous, might rival the Commons.

Here lies the chief difficulty of any reform. MPs prefer to ridicule and despise the Upper House rather than remake it into a chamber that might show up their own inadequacies. The Lords, feeling that their own efforts at reform had been balked, have shown since 1968 much more liveliness and independence, especially under the Labour government of 1974-79 and even under later Tory administrations.

In fact, the 1969 Bill was sensible. A government would be given a small majority in the House by creating life peers. The hereditary element would be phased out through the adoption of a two-tier system, under which existing peers could contribute to debates but not vote. In a country which prides itself on evolution rather than revolution, the continuity of our legislative institutions seems essential.

What would be the functions of a reformed House of Lords? They could be exactly the same as today, including the 'Salisbury convention'. But ambiguity should be removed. It should be entirely in order for the Lords to kill legislation that does not form part of an election manifesto (as the Lords did in the case of the War Crimes Act) and to amend any legislation (apart from money Bills) that come before the House. The provision of the Parliament Act of 1911, whereby the Commons can have its way after a year, should remain.

The opposition parties now propose that members of the Upper House should be elected. This would break continuity with the past. It would also have unfortunate effects. Who would wish to stand for election to a House which, compared with the Commons, has only limited powers? Independents would not stand a chance; all elections would be party political. If the election took place at a different time from that of the Commons, the proportion of members of the different parties would be different from that of the Commons. If elections took place at the same time as a general election, only second-raters would stand. By contrast, many existing life peers have been appointed not for political reasons, but because of their preeminence in their own field. They are often world authorities on matters under discussion and make outstanding contributions to debate.

If membership were by appointment rather than election, who would appoint? Continuity with the past suggests that life peers should be made, as now, by the Crown acting through the prime minister. However, prime ministers might be accused of bias. What is needed is something like the Crown Appointments Committee that oversees the appointment of bishops. The prime minister would have a power of veto, but nominations would be made by the committee and would include people pre-eminent in their own fields as well as political appointments.

Inter-party talks should begin in the near future to decide what form the reform of the House of Lords should take. There is surely no doubt about the need for change and the importance of getting change right.

The Rt Rev Hugh Montefiore is a former Bishop of Birmingham. He joined the House of Lords in 1984.

(Photograph omitted)