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1. What did the Brown Commission say?

The report by the Brown Commission, entitled ‘A new Britain: Renewing our democracy and rebuilding our economy’, argued that reforms to the UK constitution were necessary to enable a greater decentralisation of power away from Westminster. The report said this would “unlock” the potential for economic growth across the country and reduce regional inequality. To support the decentralisation of power across the UK it recommended the creation of new bodies, including new intergovernmental councils consisting of representatives of the devolved parliaments and the UK Parliament. The report also proposed changes to the centre of government, including the abolition of the House of Lords and the establishment of a new elected second chamber.

The report described the current House of Lords as “indefensible in principle”. It argued that it had become “excessively large”, saying this was in part a result of there being no constraints on the power of the prime minister to appoint new members. It also said the House of Lords was not geographically representative, with the majority of members based in London and the South East of England. In addition, it criticised the current political balance within the House of Lords, noting the total number of Conservative members was larger than the number of Labour and Liberal Democrat members combined. It proposed a new elected second chamber, to be called the “Assembly of the Nations and Regions”, which it said should be smaller than the current House of Lords and should be more representative of the nations and regions of the UK.

The report did not propose a method for elections to the second chamber or what the chamber’s composition should be. It said these should be matters for a subsequent consultation. However, it did recommend that the electoral cycle for the elected second chamber should be different to that of the House of Commons. The report suggested that elected national and regional politicians might be able to participate in the second chamber. It also said members of the second chamber should be able to serve as ministers. It said the consultation should consider whether the prime minister should still be able appoint ministers from outside Parliament in a similar way to ministerial appointments to the House of Lords.

The report acknowledged that one of the sources of opposition to reform of the House of Lords in the past had been fear of establishing a body that might threaten the primacy of the House of Commons and create parliamentary “gridlock”. Therefore, the commission recommended the elected second chamber should not generally be able to block legislation. It also said that, while the second chamber would be able to propose amendments to legislation, its power to delay legislation should be limited. It said the second chamber’s powers would be set out in the establishing legislation.

At the same time, the report said the elected second chamber should have new powers to block legislation on constitutional matters. The commission argued these new powers would enable the second chamber to establish constitutional limits on the power of the government. It argued these were necessary in order to prevent repeats of what it described as the “abuse” of power by the government when it was led by former Prime Minister Boris Johnson.

2. What political support is there for the proposals?

Speaking at the launch of the report, the leader of the Labour Party, Keir Starmer, said he supported the replacement of the House of Lords with a smaller and democratically elected second chamber. He also agreed that a new second chamber should represent the regions and nations of the UK. He said the commission’s proposals would be subject to a public consultation and the Labour Party’s final plans for reform would be set out in its manifesto.

Jim Gallagher, who worked as an advisor to the commission, argued constitutional reform was necessary to restore trust in the UK’s political system. He said the reformed second chamber would act as a check on the power of a government with a majority in the House of Commons on constitutional issues, including the devolution settlement. The Electoral Reform Society welcomed the report, describing the proposal to replace the House of Lords with an elected second chamber as offering the UK an opportunity for “democratic renewal”. However, the Electoral Reform Society criticised the commission for not proposing reforms to the electoral system of the House of Commons.

Prior to the publication of the Brown Commission’s report, the Observer reported some Labour members of the House of Lords were opposed to prioritising constitutional reform in the first term of a new government if Labour were to win the next general election. More generally, speaking to Politico after the report’s publication, Lord Blunkett (Labour) said he thought its proposals risked creating a second chamber which could challenge the primacy of the House of Commons. Lord Murphy of Torfaen (Labour), who was a member of the Brown Commission, indicated in the report that his preferred option for the composition of the next second chamber would be for it to include both an appointed and an elected element.

The government has not commented on the Brown Commission’s report. However, the parliamentary secretary at the Cabinet Office, Alex Burghart, has spoken in support of the role of the House of Lords as it is currently constituted. He argued it ensured the work of government was subject to “a level of scrutiny” which MPs “should think twice about before seeking to remove”. The Conservative Party’s 2019 manifesto included a commitment to look at the role of the House of Lords. In 2021, the then minister of state at the Cabinet Office, Lord True, said this remained the government’s position and it would keep issues of House of Lords reform “under consideration”.

3. Would the elected second chamber have any new powers?

The commission recommended the elected second chamber should be able to reject legislation related to a list of defined constitutional statutes. It recommended these should include the Parliament Acts 1911 and 1949, the legislation establishing the new second chamber and the Constitutional Reform Act 2005, which created the Supreme Court. As a result, it said these selected constitutional statues would be “entrenched”, making them harder to amend or repeal.

The commission proposed the following checks on the powers of the second chamber relating to the constitution. First, it said, in those cases where it was not clear that new legislation made a “material amendment” to a protected constitutional statute, the second chamber would be required to refer this question to the Supreme Court. Second, the commission said the House of Commons would have the power to override a decision of the second chamber to reject legislation relating to protected constitutional statutes. It said the specific mechanism by which the House of Commons would be able to do this would be subject to consultation.

In addition to the role concerning protected constitutional statutes, the commission recommended the second chamber should oversee the work of the new intergovernmental councils and bodies such as the Equality and Human Rights Commission.

Robert Greally, lecturer in constitutional law at the University of Bristol, argued there are several challenges that would need to be overcome to establish a second chamber that could protect the constitution as the commission envisaged. First, he argued that, with the exception of certain statutes like the Scotland Act 1998, it would be difficult to determine what should be counted as a constitutional statute. He said constitutional lawyers had struggled in the past to establish a definitive list. Second, he argued there was the challenge of establishing whether a particular law might conflict with a protected constitutional statute. He noted the report proposed this would be resolved by applying to the Supreme Court for clarification. Finally, he argued the report was unclear about when it would be appropriate for the House of Commons to override the second chamber or how the House of Commons would be able to do so. Notwithstanding these issues, he argued the commission’s proposals would make it more difficult for a future government to change constitutional legislation falling within the second chamber’s protection.

Aileen McHarg, professor of public law and human rights at Durham Law School, said the proposals for the entrenchment of constitutional statutes appeared to offer enhanced protection for devolution. However, she argued this protection might be weaker in practice than the commission presented. First, she argued the new second chamber would not be obliged to reject or amend legislation affecting protected constitutional statues. She said the extent to which the new second chamber might choose to use these new powers to protect the existing devolution settlement might depend on the proportion of the membership which represented the devolved nations. Second, she noted that the new second chamber would only have limited powers to delay legislation concerning protected constitutional statutes and that the Commons could override it.

Dexter Govan, a researcher at the Constitution Society think tank, also thought the proposals for the entrenchment of constitutional statutes were potentially weaker than presented in the report. He argued that, without a written constitution, protected constitutional statutes could still be amended by primary legislation. He also criticised the report on the grounds it lacked detail about how its proposals would be implemented. For example, he described it as “troubling” that the means for resolving a dispute between the House of Commons and the new second chamber would only be confirmed after a consultation.

Meg Russell, the director of the Constitution Unit, has described the proposals for establishing an elected second chamber as ambitious. She said the proposals concerning the function of the second chamber represented the most detailed aspect of the commission’s recommendations. However, she argued there was much left to consider, including the equally important issues of the composition of the second chamber and the practicalities of implementing these reforms. She noted these important details needed to be resolved if the reforms stood a chance of being successfully implemented. She also argued it would be impractical for Labour to conduct an effective consultation while in opposition. Therefore, she concluded it was unlikely that “concrete action” on these proposals could be taken before the second or third year of a Labour government. The Constitution Unit, the Institute for Government and the Bennett Institute published a joint report on the Brown Commission’s proposals on 2 March 2023.

Lord Norton of Louth (Conservative) argued the report’s proposals, if enacted, risked creating a second chamber which was no longer complementary to the role of the House of Commons. Lord Norton argued that the House of Lords in its current form “added value” in terms of providing scrutiny to government and enabling legislation to be improved through amendments tabled in the Lords. He said this was as a result of the fact the second chamber is unelected, arguing appointed members did not have to prioritise “profile-raising” activities and were able to concentrate on detailed scrutiny of legislation. Lord Norton instead advocated for incremental reforms, including measures to limit the size of the House of Lords and amend the appointments system.

4. What has the Lord Speaker said?

In December 2022, the Lord Speaker, Lord McFall of Alcluith, gave a speech to the Hansard Society on the future of the House of Lords. He said it was not part of his role to put forward specific proposals for reform and he did not comment on the proposals in the Brown Commission’s report directly. However, he did say that one of the current strengths of the House of Lords was that it was constituted differently to the House of Commons. For example, he said the House of Lords was able to draw on the experience of its members, such as those who may previously have served as ministers or in other senior positions in public life. However, he argued that there remained problems with the House of Lords which could be improved through reform, including the size of the House. He also argued that previous experience indicated small incremental changes had been more successful than radical change, citing the success of the House of Lords Reform Act 2014, which enabled members to retire from the House of Lords.

The Lord Speaker said that, while radical change might be possible, any program for reform should address the principle that “the more radical any change in composition, the more radical and uncertain the change to the role of the House”. He also argued any government seeking to introduce such reforms should ensure those reforms enjoyed “both consensus and legitimacy”. Specifically, he suggested this might be achieved through a constitutional convention, followed by an act of parliament implementing any changes.

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Cover image from Wikimedia.