Political and Constitutional Reform CommitteeWritten evidence submitted by Christopher J Hartigan

Introduction

I am a member of the public with an interest in constitutional matters and Lords Reform in particular. I previously gave evidence to the Joint Committee on The Draft Lords Reform bill where I set out a fuller analysis of what I believe Lords reform should look like. I hope that my views in this context will be considered by the select committee and be found useful.

Learning the Lessons of Previous Attempts…

In my view the evidence from recent attempts at Lords Reform have revealed that the democratic underpinning of our Constitution properly belongs within the House of Commons and therefore direct elections are for that house alone at this time. It also revealed that the power of the executive is not to be extended within the House of Lords if it is to maintain its focus of wise independent reflection and knowledge which are its hallmarks for good legislation. The House of Lords needs to apply, in its work of scrutiny, the influence of common sense, right judgement and a wider sense of the people’s best interests. An effective and well respected house should be able to; curb the traits of political expediency; dogmatic posturing; knee jerk responses that governments and political parties are prone to. The primary means of reform must be evolution not revolution. Supporting that process will bring about a balanced and adaptable house that meets the needs of our Constitution. Relatively small measures have brought about effective change since 1911 and the House of Lords has already evolved into a well respected and effective second chamber. Change should not now be set in concrete but should have a flexibility foundation to evolve further. This might or might not lead eventually to a directly elected house but if it does it will come through a process that responds to the needs of the time and the people not political dogma.

The Way Forward

I would like to draw your attention to the evidence of Baroness Hayman to the Joint Committee on the Draft Lords Reform Bill who advocated small doable measures as the way to achieve Lords reform.

I feel that a flexible foundation might well trigger such a process. I would also like to highlight Lord Steel’s bill, House of Lords (Cessation of Membership) Bill [HL] currently before the commons which is very practical, much needed, and has got this far by having a level of consensus with members of both houses that ought to enable it to pass into law. The previous bills Lord Steel has brought forward have also had wide consensus and speak of reforms that this committee may wish to consider. It is my hope that your work and this bill may move forward in unison. It is also my hope that Lords Reform will move forward by means of secondary elections. The report on the Draft Lords Reform Bill did ask for such proposals to be considered (Page 99 para20 & para120). It might be helpful to see if there was enough of a consensus for this to happen. Lords reform is dogged by everyone having a scheme and I am no different. Most of these fall into three types: direct elections, indirect elections or just appointment. It is therefore difficult to bring people together for a consensus even on smaller measures but I believe a loose consensus should be sought somewhere in the middle which can grow by smaller measures into something we can all be comfortable with even if not our own hearts desire.

My Small Measure

A house, based only on appointments, will have to live with an ever greater clamber for its reform as it fails to meet the more engaging expectations and perceptions of the general public as judged seemingly by political parties who can not resist having something in their manifestos. I believe the House of Lords should move from a purely appointed house to one enhanced with secondary elections. I would like to see a House of Lords about 500 existing life peers who, using there own internal list system, predicated upon the total number of votes for the Commons at the previous General Election. The votes cast would determine the percentage of seats for each party and the crossbench representation being calculated from nonvoting electors. It is simple and understandable. It is a foundation upon which reform can easily evolve by small measures in the future. It also meets the stated apparitional aims for party balance and size of the House of Lords. This process proportionally represents nationwide how people have voted in a general election without challenging the democratic role of the Commons it also makes it unlikely that any one party would have a majority in the House of Lords. If a consensus for such a measure could be found it would be an investment in constitutional stability with great potential for development through small measures. It could be seen as giving something to everyone or nobody getting what they want. My cup remains half full!

Individual Small Measures

Many of the individual small measures you will want to consider are, as you know, already within the Steel bill but I will look at some of them as individual proposals. All agree that there is an urgent need to reduce the number of peers and the government recognises this but appears set to be continuing to add to this problem for there own party advantages.

Retirement

Not replacing Hereditary peers is clearly practical, effective and desirable as is the removal of non attending members. Fix term and retirement ages are more difficult as they raise fundamental issues that are controversial and not easily resolved. Ageism is also on the agenda and it is true that “many a good tune is played on an old fiddle”. These two proposals should only be used as a temporary or emergency measure to restructure the house. Voluntary retirement has not worked however it should be encouraged and effective incentives considered.

Moratorium

A moratorium on new peer seems like an obvious answer to ever growing numbers and it might create an incentive for governments to get on with reform. However this would curb the effectiveness of the house and create a last ditch rump perspective that would damage the respect that the house has earned by its acknowledged excellent service. It is however incumbent upon the government to be restrained in the number of appointments it makes.

Expelling Members

There needs to be an accepted system, similar to the commons to deal with criminal activity. It is clear that the public do not understand why one is not in place already. Steel bill also addresses this question effectively. This is an area clearly has a supportive consensus.

Patronage/Appointments Commission

Having a largely appointed House of Lords, the question of patronage is always on the agenda and even as far back as Lloyd George there was always a whiff of impropriety in the air. To address this area there needs to be a system of appointment that is reasonably transparent and acceptable to the general public. It needs to be as open as possible while meeting the needs of government, legislators, and to the public sensibilities. A responsible body needs to be in place to regulate this process and itself should be regulated by an independent body-double lock. Its remit will need the wisdom of Solomon since the process has to deal with Party Appointments, Governments appointment of Ministers and the evolving roles that crossbench peers to represent various sections of society or of experts in various fields in their appointment process, while demonstrating its independence from the influence of the executive. I believe most people would accept that such a body is needed to authenticate the appointments of suitable people who can be seen to be acceptable. I believe such a commission makes sense for most people and is desirable. It will be effective if it is set up on basic principle, with scrutiny and leaving room for it to evolve with the evolving role of the House of Lords. This, at some point, may need to be a statutory body to define its role as independent of the executive.

Membership

The membership of such a body may well determine how acceptable and effected the body is. They should not just be government or party nominees. Members should be diverse as such bodies tend to appoint people like themselves and perhaps the House of Lords of the future might need to develop a much greater diversity to meet the evolving demands being made on it. It must be said that it already does this much better than many other bodies, including the Commons, in its diverse makeup. This is an area that might need some inspired process to meet all that will be required of it but it must be addressed to make it effective and acceptable.

Cap

The way that current appointments are made is not sustainable and is damaging to the functioning and dignity of the second chamber. It might well be a role of a statutory appointments body to manage this process in future. At the moment the process of constantly adding new peers must stop regardless of party balance until a formula can be agreed. An alternative might be the setting of a cap and managing it down to the level required. I believe the balance in the House of Lords should rest upon the percentage of votes cast for the particular party in relation to other parties (not ignoring crossbench peers –re non voters). Once a new government agree (from the election data) what the proportion should be then that balance becomes the aim. It should be pursued over the period of a government and would be sought not just with new appointment but through voluntary retirements, deaths etc. It should be a shared aim of all parties to avoid increasing numbers and thereafter the house might have an upper number limit set and appointments made only within it, and perhaps a cap set of about 500 to prevent a further race to add new party representatives. An appointments commission might regulate the working of the cap within the balancing aim set at the start of a parliament.

Urgent Approach to Rebalance Numbers

The House of Lords clearly needs urgent rebalancing and it might be worth seeking one off, programme for reducing the house numbers. A redundancy scheme! To do this is desirable, certainly effective but perhaps not the best way to reward loyal service. A generous compensation scheme should be considered as many will have given long and faithful service. It can also be justified as we would get a house of 500 that works much better and able to be more effective in its role. Perhaps the most simple way is the cap, calculated by asking for voluntary retirement then look at the peers attendance rating of remaining life peers in order and those 500 with the best attendance records stay and the others retire. It is crude but fair and simple but takes no account of party balance within the 500 remaining. From the Leaders Group on Members Leaving the House, Interim Report 2010, Table 3 would suggest that this might affect those attending roughly less than 25% of possible attendances. It would also affect expert peers who only attend when there subject in involved however can the house afford “one trick ponies”. Other methods might embrace, sadly, a combination of age limit and time served if a voluntary system had fails. This might lead to the loss of some of the finest and most experienced peers. These would not yield the numbers most seem to think going by the same report data. Alternatively each party might be allocated a number of seats and that group might well decide themselves who stays or goes by internal election or other methods they might prefer. Such action would be a very last resort but the house must be brought down to a reasonable working size within a short period of time. Evolution is better than surgery but time is fast running out and the time for action is now. I much prefer my own measure of secondary election process of existing peers that I have outlined as a functional and foundational reform that I have advocated as it would avoids the need to deal with the crisis in this blunt way.

Conclusion

Doing nothing on Lords Reform is not an option that should be considered. Doing what can be done is a step in the right direction if its direction enables the process to continue. The work of the House of Lords is well respected and often much needed. Reform has become a political football of party dogma which undermines and undervalues its work. It needs to move beyond the reach of constant threat of party wheeler dealing and power politics and face up to the need for reform itself. Parliament itself needs to safeguard its role and functioning against the over powerful executive.

4 February 2013

Prepared 16th October 2013