Political and Constitutional Reform CommitteeWritten evidence submitted by Dr Stephen Barber, Reader in Public Policy, London South Bank University

1. Overview of Response

1.1 For more than a century there have been attempts to reform the House of Lords and since 1911 a number of relatively significant changes have been implemented including the 1911 and 1949 Parliament Acts, Life Peerages Act (1958), Peerages Act (1963), House of Lords Act (1999). These reforms changed both the powers of the Lords and its composition. As such the Chamber has moved gradually from one comprised exclusively male and hereditary to one almost wholly appointed, 22% of whom are women (roughly the same proportion as the Commons).1 The Lords, a revising chamber, cannot veto finance bills and can only delay for a maximum of two sessions. Thus over the period of piecemeal reform, the primacy of the House of Commons has been established and reinforced.

1.2 Since the 1999 Act there have been numerous consultations, discussions and white papers2 aimed at serious Lords reform and which have all fizzled out in the face of vested interests. It is regrettable that most recent proposals to democratise the upper chamber, this time in the guise of the House of Lords Reform Bill, have once again been abandoned. Consequently were there to be change initiated in this Parliament, it is likely to be both modest and in the long tradition of piecemeal adjustment.

1.3 An important observation is that, for the most part, the desire for reform has not been driven by the belief that the House of Lords performs poorly in its scrutiny of legislation. Rather, the problem is one of democratic illegitimacy and unaccountability. Any reform process must have the concept of improving legitimacy as the fundamental objective and it is against this that any plans should be judged. Incongruously, some of the current proposals to make minor adjustments potentially reduce legitimacy further by placing greater power in the hands of the prime minister, party leaders and the party machines. While many of the proposed mechanisms are desirable and practicable, there is a need for them to go further and to introduce at least a small element of democracy. I address this point in the recommendations.

2. The Desirability, Practicality and Effectiveness of Proposed Mechanisms

2.1 No longer replacing hereditary peers in the House of Lords when they die

The 92 hereditary peers who remained after the 1999 Blair reforms served the useful function of a ‘temporary’ absurdity, supposedly ensuring that the second stage of reform (democracy) happened. Ironically, the 92 represent the only democratic element of Lords composition today since there is a ‘blue blooded’ election when an hereditary member dies and are one of the few counterbalances in the Chamber to those appointed by the party leaders. The absurdity of the 92, however, has not ensured an overhauled Lords and, as part of a series of modest reforms (if removal in their entirety cannot command consensus) ending the practice of replacing peers when they die (or converting them into life peers) is an essential step.

2.2 Measures to remove persistent non-attendees

The 2010 report from the Leader’s Group on Members Leaving the House3 showed that 79 of 741 members in the 2009–10 session did not attend at all and discussed provision for removing inactive peers. There would seem to be a desire and an opportunity presently to reduce the number of members by removing those who have not engaged with the work of the House. This should prove relatively uncontroversial.

2.3 A moratorium on new peers

The ability of a prime minister to exert considerable control over appointments to (and consequently membership of) one house of parliament and the counter-balancing alternative of a legitimately elected, independent, chamber which could frustrate a government’s programme could be seen as one of the reasons that democratising the Lords has persistently failed gain momentum. A moratorium on new appointments would not only begin to address concerns about the large (and periodically growing) number of members, but might also neutralise the disincentive of the executive to carry through on reform.

2.4 Fixed-term appointments for new peers and a retirement age for peers

The danger in introducing fixed terms for new appointments is that as members leave, over time it would increase the proportion of those who owe their appointment to the prime minister or party leaders of the day, thus potentially decreasing the Chamber’s independence. The introduction of a mandatory retirement age could have a similar impact and mean that decisions on appointments be influenced by age with the potential for ‘gaming’ between party leaders. Further, at a time when equality legislation has made age discrimination illegal in the workplace, it would be a retrograde step to introduce it in Parliament. Voluntary retirement, however, should be facilitated.4

2.5 The desirability and scope of a mechanism to expel peers who have been convicted of a serious offence

There is no legitimate justification for the situation where members convicted of a criminal offence cannot be expelled from Parliament. The rules should be the same for the Commons and the Lords.

2.6 The desirability, composition and remit of a Statutory Appointments Commission

In the absence of consensus over reform of the Lords, it would seem premature to place the Appointments Commission on a statutory basis. While independence from the party machines and the enforcement of standards is desirable, the Commission can be viewed as an establishment body which appoints establishment figures to sit in Parliament.

2.7 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

Working on an assumed ‘party political’ House of 557 members (that is discounting the 178 Crossbenchers and 25 Bishops from the current 760 membership5) it can be said that Conservative members of the Lords account for about 38%, Labour 40%, and Lib Dems 16%. On this basis, ironically, the Lords is more representative of the proportion of votes cast for parties over recent general elections than the House of Commons. Electoral support can be the only principle upon which any formal determination of party representation could be made. But it would be an affront to democracy to codify such a doctrine. It would be tantamount to vested interests and political elites deciding on the representation that it believes the public wants but not trusting us to make the decision ourselves.

3. Recommendations

3.1 The Committee should propose (1) the conversion of the 92 hereditary members into life peers, (2) the removal of inactive members, (3) a moratorium on new appointments, (4) a requirement for members convicted of a criminal offence to be expelled akin to the rules governing the Commons.

3.2 In addition there should be some modest initiative designed to introduce an element of democratic legitimacy to the Chamber. The Committee should propose the addition of 46 senators, elected by a proportional system at the next general election6 and representing broad geographic regions. Commanding consensus is a priority for the Committee’s inquiry and given that these recommendations would mean the entire active membership of the current House of Lords remains unaltered, the addition of a small cohort of elected members, whose number constitutes half that of the hereditary peers, should not prove controversial.

5 February 2013

Notes

1 Leys, D. Women in the House of Lords, House of Lords Library Note, 14 March 2012
LLN 2012/005

2 Wakeham Report (2000), The House of Lords—Completing the Reform (2000); Joint Committee on House of Lords Reform First Report (2002), Constitutional Reform: Next Steps for the House of Lords (2003), The House of Lords: Reform (2007), House of Lords Reform Bill (2011)

3 Leader’s Group on Members Leaving the House (2010), Consultation on Members Leaving the House, Interim Report session 2010–11, HL Paper 48

4 Lord Steel’s House of Lords (Cessation of Membership). Bill addresses this issue

5 Based on membership as at 8 January 2013. http://www.parliament.uk/mps-lords-and-offices/lords/lords-by-type-and-party/ Accessed February 2013.

6 Election at the next general election is proposed to minimise cost and maximise voter turnout. However, it would be preferable for elections to the second chamber to be out of sync with the electoral cycle of the first; achievable now that the Commons has fixed term parliaments.

Prepared 16th October 2013