House of Lords reform: what next ? - Political and Constitutional Reform Contents

10  Determining the relative numerical strengths of party groups in the House of Lords

67. In our terms of reference we asked witnesses to offer their views on the scope for establishing a consensus about the principles which should determine the relative numerical strengths of the different party groups in the House of Lords, and for codifying such principles.

68. In his written evidence, Lord Howarth explained how the current political balance is determined:

    The process whereby members of political parties arrive as members of the House of Lords is obscure and random. It is controlled by the Prime Minister who determines how many appointments each party leader can make. This produces an inflationary ratchet: incoming Prime Ministers create masses of new peerages, offering some to other parties but always making sure they strengthen their own party's relative headcount in the division lobbies. The party leaders reward old friends, donors, superannuated colleagues who have behaved themselves and so forth. The House gets larger and larger. It is indeed indefensible.[143]

One of the problems with this system, according to Alan Renwick, is that "the composition of the chamber can be substantially altered at the whim of the serving prime minister" leaving "the Prime Minister great scope to change those strengths to his or her own advantage". This, he argued, is a problem of principle: "it is wrong for the Prime Minister to have such great power over the composition of one of the chambers of Parliament."[144] Dr Russell concurred:

    [The] biggest single problem with the current composition of the Lords is the Prime Minister's unregulated patronage with respect to party peers. S/he continues to decide how many should be appointed, when, and with what balance between the parties. This is an inappropriate power for the head of the executive to hold over the composition of parliament, and could allow legislative outcomes to be manipulated (e.g. by a Prime Minister wanting to prevent Lords defeats by "packing" their own side). Furthermore, it is this unregulated power that has led to the growing size of the chamber.[145]

69. The written evidence suggested various ways in which relative numerical strengths could, and should, be determined. For instance, the Electoral Reform Society believed that the principles determining party strength should take account of the balance between party and independent peers. It stated that "the independence of the upper chamber and the balance between party and Cross-bench MPs should be considered as part of any codification. No party should have an overall majority in the House of Lords. It should be a forum where all interests are heard but none dominate."[146] Dr Baldwin and Dr Ballinger both also referred to the idea that no individual party should have an overall majority in the House, with Dr Ballinger suggesting that there seems to be "some measure of agreement that no party should seek a permanent majority in the upper House".[147] These principles are contained in Baroness Hayman's Bill which would give the Government a majority over the Opposition without allowing it to dominate the House as a whole as well as guaranteeing the Cross-benches and non-affiliated Members at least 20% of seats.

70. In terms of how the relative strengths would be calculated, many submissions recommended that party balance in the Lords should reflect the shares of the popular vote at the most recent General Election. This mirrors the Government's objective in the 2010 Coalition Agreement of "creating a second chamber that is reflective of the share of the vote secured by the political parties in the last general election".[148] Dr Barber's evidence stated: "electoral support can be the only principle upon which any formal determination of party representation could be made,"[149] while Dr Baldwin argued: "balance should be derived from the level of popular support achieved at the most recent general election or from an aggregate of the level of popular support achieved at the two most recent general elections."[150] Both the Liberal Democrat Parliamentary Policy Committee and the Green Party expressed a preference for allowing the electorate to vote for peers directly. However, the Green Party accepted that "until legislation is enacted to enable that to happen then as a very minimum, as per the Coalition Agreement, it should be reflective of the share of the vote secured by the political parties in the last general election. [151] Professor McLean stated: "if the House is to become a fully nominated one [...], a minimum democratic requirement would be that its party members should in some sense reflect (probably lagged) public opinion as expressed in votes for the House of Commons." [152]

71. However, a number of submissions expressed concern about basing the composition of the House of Lords on the share of the popular vote of the last General Election result. The Campaign for a Democratic Upper House, for instance, stated that this would "significantly under-represent small parties and independents".[153] Professor McLean addressed this point:

    The rule might be, for example, that parties are represented in proportion to the (unweighted) average share of their national vote at the last three General Elections. A threshold of, say, 5% of the popular vote could be set; but parties which contest seats in only one part of the UK should only be required to obtain 5% of the vote in the part of the UK where they have run for the Commons. After each General Election, this balance would have to be re-weighted. [...]. [154]

72. The Campaign for a Democratic Upper House also argued that basing party strength on previous General Election votes would "fundamentally change the nature of the franchise. Voters would effectively be voting for two chambers."[155] Dr Russell argued that although the Coalition has not retracted its commitment to balance the House of Lords of the basis of the 2010 General Election vote, with less than two years to go before the next General Election "it would make no sense to return to it now, more than halfway through the Parliament [...]".[156]

73. Several submissions addressed the impact that basing the composition of the House of Lords on the last General Election vote could have on the size on the House. For instance, the Electoral Reform Society argued that unless it was coupled with reforms aimed at removing Members, it would increase rather than decrease the size of the House. Dr Russell stated: "any attempt to align the chamber's membership with general election votes would operate as "an upward ratchet" (unless perhaps some members were forced to depart the chamber at the same time)."[157] Indeed, in 2011 the Constitution Unit calculated that a further 82 new Conservative Peers and 97 new Liberal Democrats would be required to make the party balance in the Lords reflect the votes cast at the last General Election. This would bring the size of the House up to over 1,062, while its membership would need to increase to 1,142 if the present proportion of Cross-benchers were to be maintained. The Liberal Democrat Parliamentary Policy Committee noted that:

    These figures were contingent on the Prime Minister deciding not to appoint any further Labour Peers, since their numbers already exceed those justified by the 29% share polled by Labour at the general election. However, on present evidence, it appears the Prime Minister like his predecessors does not wish to appoint members only of the governing parties. This admirable altruism towards the Opposition makes the task of creating balance in the House of Lords all the more difficult.[158]

Unlock Democracy concluded that "without term limits for members of the House of Lords, it is simply impossible to maintain party balance in the second chamber without its size rising exponentially".[159] Another possible option in this context could be to re-visit a form of moratorium which would see more than one peer removed every time a new peer was appointed, in line with an agreed party balance and an agreed size for the House. This would in effect ensure that new appointments could in fact help to reduce the overall size of the House.

74. Both Dr Russell and Professor McLean suggested that it may be more helpful if new appointments were required to reflect General Election votes, rather than this formula being applied to the Chamber overall.[160] This has been recommended by the Royal Commission, and numerous others (including the Public Administration Committee and the Government)[161] who have previously proposed a long-term Lords membership that includes some appointed party peers. Dr Russell argued that applying the formula only to new appointments has the benefit of clarity and transparency, and would also tend to level out the effect of electoral fluctuations if Members are appointed for long terms. Such a formula could be applied to batches of appointments (of say 10 or 20), but equally could be used if Members were appointed individually (for example on a one-in-one-out principle, following deaths or retirements).

75. However, for this formula to work, Dr Russell argued that there would need to be agreement not only on the share of appointments between the parties, but also on their overall number. She added:

    Most parliaments have a fixed size, and most previous proposals for reform have envisaged this for the Lords. Without a size cap, a Prime Minister might remain tempted to make large numbers of appointments, as the proportionality formula would still tend to favour their party while they are in power. Hence a limit on the size of the chamber, and/or a limit on the number of appointments per year, is essential.[162]

    Dr Russell continued:

    There would need to be agreement about the proportion of appointments that should go to independent Cross-benchers. Again, there has been near-consensus from previous proposals that this proportion should be set at 20%. It is the remaining 80% of appointments, therefore, that would be shared proportionally between the parties.

76. Dr Ballinger suggested:

    Perhaps the most practicable method for reducing the size of the House, without entirely altering the basis of its composition (such as through fixed-term appointments, detached from the peerage) would be to insist that each party group in the Lords (and the crossbenchers) had to reduce their numbers—the numbers can be chosen according to general election votes cast, or some other agreed measure (and could be changed periodically). The number of seats in the upper House would therefore be limited, and not all Life Peers would be Members. This has precedents not just in the selection of hereditary peers since 1997; but also in the selection of members of the Scottish and Irish peerages before 1963, and in the selection of Lord Bishops since 1847. It could be left to each party group to determine their preferred method and criteria of selection, within their number cap.[163]

77. It is noteworthy that although Baroness Hayman's Bill does not introduce a formal cap on the size of the House, it moves very softly in that direction insofar as it states that "[...] the Commission shall have regard to the need to achieve a membership not exceeding that of the House of Commons".

78. Views differed on the prospect for securing a consensus on the issue of party balance. The Campaign for a Democratic Upper House thought that there would be little scope for consensus[164] while Professor McLean stated that the problem is that "self-regulation potentially collides with partisan interest".[165] However, Alan Renwick pointed out that the principle that no party should have a majority in the House of Lords had underpinned all recent reform proposals and was apparently accepted on all sides of the House.[166]

79. There were various suggestions as to who, or which body ought to take responsibility for codifying the principles by which the relative numerical strengths of the parties should be determined. Professor McLean stated: "the body which commands respect in this area is the Electoral Commission, which already has experience of some of the gaming issues likely to arise (e.g. parties which pretend to merge or split in order to cross thresholds or prevent their rivals from crossing thresholds)."[167] Dr Ryan suggested that the role of establishing the numerical strengths of party groups in the House of Lords could be discharged by an independent Appointments Commission "with the formula for doing so set out in statute."[168]

80. A number of witnesses including Dr Russell stressed the crucial importance of involving the parties in decisions as to what the composition of the House should be.[169] Dr Russell said: "You have to get people from the party groups to sit down and agree between them what the party balance should be and what size the cap should be. If you can get that agreed, I think the party groups will be able to sort it out for themselves, encouraging people to go."[170]

81. Agreement on how to determine the relative numerical strengths of the different party groups in the Lords would not only be a valuable end in itself, it would also pave the way for the implementation of the majority of the other small-scale reforms we have discussed in this Report. Of all the issues we have discussed it has the most potential to have a positive impact on the size of the House. Inevitably, it is also the most contentious. We have referred in this Report to various suggestions as to how this could be approached. However, the reality is that it is up to the party groups to engage in dialogue with a view to reaching an agreement on the next step forward. We recommend that in its response to this Report, the Government sets out its position on this issue. We also encourage the individual party groups and Cross-benchers to provide their views in writing to us with a view to making progress on this issue before the next General Election.

143   Ev w17 Back

144   Ev w24 Back

145   Ev w42 Back

146   Ev w19 Back

147   Ev w47  Back

148   HM Government, The Coalition: Our Programme for Government, 20 May 2010 Back

149   Ev w5 Back

150   Ev w9  Back

151   Ev w21 Back

152   Ev w15 Back

153   Ev w34  Back

154   Ev w15 Back

155   Ev w34  Back

156   Ev w42 Back

157   Ev w42 Back

158   Ev w8 Back

159   Ev w34 Back

160   Ev w15; Ev w42-43 Back

161   A House for the Future, (Cm 4534); 5th Report of the Public Administration Committee, 2001-02, The Second Chamber: Continuing the Reform, HC 494 Back

162   Ev w42-43 Back

163   Ev w46 Back

164   Ev w30 Back

165   Ev w15  Back

166   Ev w26  Back

167   Ev w15 Back

168   Ev w10 Back

169   Q 191 Back

170   Q 134 Back

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© Parliamentary copyright 2013
Prepared 17 October 2013