Political and Constitutional Reform CommitteeWritten evidence submitted by the Liberal Democrat Parliamentary Policy Committee

As strong advocates of the Coalition Government’s House of Lords Reform Bill, we are of course disappointed that such an inquiry should be necessary when all candidates for the major parties were pledged in their party manifestos to support democratic reform in this Parliament. We believe any interim reforms should sustain and increase focus on that objective, rather than attempt in any way to dilute the ultimate case for all or most of the membership of the Lords to be determined by the electorate rather than by party leaders. In May 2015, whatever the party composition of the Government, this will be unfinished business, challenging all the other issues in the “In Tray” for priority.

Our assessment of the political landscape around House of Lords Reform is that no progress on any front is now likely to be made before another General Election. As Chris Ballinger put it in his recent book The House of Lords 1911–2011: a century of non-reform, “seeking a perfect reform through consensus is a fast-track to inertia”. In that light, it is our firm hope that that election will return enough pro-reform MPs to move forward, on a sensible timetable, even if not everyone agrees.

The Bill for which the Commons voted by a majority of 338 at Second Reading last year is surely the best starting point. Of course, it is likely to be subject to amendment—that is what Parliament is for—but the essential principles contained in the Bill ought to stand as a balanced package which both lends legitimacy to the Lords and maintains the pre-eminence of the House of Commons. This is the balance which had been sought—and, we contend, had been found—through more than a decade of cross-party discussion in the form of a Royal Commission, three Select Committee inquiries, the cross-party Breaking the Deadlock report and draft Bill, and the three White Papers published by Labour, particularly that in 2008. This was borne out by the most recent Joint Committee’s majority conclusions that, “the reformed second chamber of the legislature should have an electoral mandate” and that, if the Bill had passed, “the remaining pillars on which Commons primacy rests would suffice to ensure its continuation.”

The electoral system proposed in the House of Lords Reform Bill would have promoted the nomination and election of a diverse range of candidates, and would by its very nature have ensured proper representation of all parts of the United Kingdom. Our essential contention is that a reformed House of Lords is an elected House of Lords, and that no reform short of that will make the second chamber acceptable.

However, despite our preferred starting point, we recognise that in the absence of real democratic reform, some more cosmetic changes may need to be examined simply to make the Lords less absurd. If it continues without any kind of reform, on its present trajectory, it will surely become the world’s most ridiculous second chamber in a matter of years. Already, only Kazakhstan and Burkina Faso rival our Parliament in having a second chamber larger than the first.

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

For most people, the clearest outrage which must be addressed in the Lords is the presence of hereditary peers. Liberal Democrats have instinctive sympathy with that argument, and have promoted their removal. It seems to us that the “Cranborne” Agreement of 1999, that 92 hereditary peers must stay until “Stage Two” (democratic) reform was complete, is now redundant. The continued right of these peers to take their seats in the Lords was supposed to maintain momentum for the completion of reform in the near future. Quite clearly, it has failed in that endeavour. However, it is at least understandable that the existing hereditary peers—and some others—continue to argue against the ending of hereditary by-elections on the basis that the promised “Stage Two” reform (elections) has not happened.

To deal with this argument once and for all, we would favour the removal of hereditary peers and their direct replacement with a first tranche of elected Peers, even if there were no guarantee of further tranches. This would be a good opportunity to test whether the introduction of a (small) elected element was really as disruptive as critics have feared. In the absence of such a scheme, provision to end hereditary by-elections (which are absurd) will have to be considered as a separate issue. However, it would not be uncontroversial: the trenchant opposition in the Lords to the version of Lord Steel’s Bill which contained this apparently simple reform shows that even such an apparently straightforward change will be difficult, and will not command total “consensus”.

Measures to remove persistent non-attenders

A scheme to end the right to membership of those who do not attend would reduce the headline size of the House of Lords but, by definition, would have no actual effect on the numbers who come to the House each day. We believe any “use it or lose it” provision should contain exceptions to ensure that those who have a legitimate reason to be away from the House for an extended period should not be evicted. After all, those who do not attend are neither paid nor make any demands on the limited accommodation and facilities of the Lords. We also note that such provisions could have a perverse, counterproductive effect of encouraging those who do not presently attend to start coming into the House more often!

A moratorium on new peers

Of all the suggestions made for “incremental” reform by those existing peers who do not favour elections to the Lords, a moratorium on the appointment of new peers is the most ridiculous and repugnant. To advocate a moratorium of this kind is to argue that the existing membership is perfect, and unable to be supplemented by any better or more recent wisdom than that which resides in the present House. This is of course a complete nonsense. The present House has a great many “ex-experts”, people who once led in their field but have long since left that field. To enhance the diversity and contemporaneousness of the experience in the Lords, tranches of new members will sometimes be necessary. We believe the Committee’s focus should be on a regime to remove members whose exit (whether they attend regularly or not) is manifestly overdue, in order to make space for new blood.

Fixed-term appointments for new peers

This suggestion was first mooted only by Andrew Tyrie MP and Sir George Young MP in 2009, only as an interim solution, to rationalise the system of appointments and provide for some useful turnover. It would deal with the folly that those who are in the House now must remain forever, while anyone outside should be banished because they would somehow take up too much room and cost too much money. However, in our view, anything which seeks to legitimise a system of politically appointed legislators is doomed to failure. As Tyrie and Young themselves put it, “We do not believe that this would provide a durable settlement; election is needed to entrench the legitimacy of the second chamber.” It will be no more legitimate for someone to be appointed to Parliament by Party Leaders for fifteen years (or three parliaments) than it is for them to be so appointed for life.

A retirement age for peers

A retirement age has some superficial attractions in that it would reduce at a stroke the number of peers. However, it is difficult to justify such an arbitrary provision and particularly at a time when fixed retirement ages are being abolished across the public sector. The House of Lords Leader’s Group on Members Leaving the House examined this issue in some detail in 2011 and found that at that time a retirement age of 70 would remove almost half the members of the House; a cut off point of 75 (mirroring the arrangements for Supreme Court judges) would have removed 221 members, and even raising the age to 80 would have removed 115 members. Yet those removed would not necessarily be the least useful, or those with the least well-received views among the public. They would simply be the eldest. Age discrimination of this sort would be no more democratic or acceptable than the imposition of a minimum age.

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

This is clearly a desirable change to make, and should reflect arrangements presently in place for the House of Commons. Sections 26 and 32 of the Government’s House of Lords Reform Bill dealt with this issue; if the Bill is re-introduced after 2015, the change can be made then.

The desirability, composition and remit of a Statutory Appointments Commission

A statutory appointments commission is clearly desirable, but only if appointments are to continue. We believe that in the next Parliament the House of Commons will take a view on whether a reformed chamber should be wholly, or only mainly, elected. While the latter remains the option we judge can command most consensus, the former is not to be discounted, particularly in light of the Labour Party’s protestations that no one should “contemplate reforming our system on any other basis than full democracy” (Hilary Benn, Shadow Leader of the Commons, 11 May 2011). In this light, the establishment of an expensive new Commission during this Parliament could be considered premature.

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.

In our estimation, by far the most rational way to establish the numerical strengths of different party groups is to ask the public to elect the candidates of their choice to the House of Lords. In the absence of this straightforward solution, it is clear that there is already some de facto consensus among the parties about how to approach Lords appointments. It appears that each new Prime Minister will seek to “balance up” the House to include a number of members more proportionate to their most recent share of the vote, after each election. Almost by definition (and save for an instance of a serious failure of our electoral system), a new Prime Minister will be from a Party which got more votes at the most recent election than at the one before. He or she will therefore feel entitled to appoint more Peers from his or her Party. Tony Blair and Gordon Brown together appointed 173 new Labour Peers; David Cameron has already elevated 49 Conservatives. Yet, to avoid accusations of “stuffing the Lords with cronies” Prime Ministers will also appoint a good number of members from their opponents’ parties. Tony Blair and Gordon Brown together appointed 68 Conservatives and 56 Liberal Democrats, while David Cameron raised 40 Labour members and 24 Liberal Democrats to the Peerage. This has the effect of increasing still further the number of Peers needed to give a sense of “balance” after an election.

Research by the Constitution Unit showed in 2011 that on the figures in the House at that time, 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 well over 1,062, while its membership would need to increase to 1,142 if the present proportion of Crossbenchers were to be maintained. 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.

Conclusions

“Incremental” reforms to the House of Lords do not enjoy the consensus which is sometimes attributed to them. Anyone who has participated in, or read in Lords Hansard, the debates on the “Steel Bill” will be able to see that. In fact, any meaningful reform of the House of Lords requires not the consensus of every MP and Peer, but cross-party leadership of the pro-reform majority in the House of Commons. Hereditary peers should certainly be removed, but the principle of heredity should be succeeded by the principle of elections, not by an engorged power of patronage for party leaders. Meanwhile, if party balance is to be achieved in the Lords after each election (and without direct elections to the Lords itself), there must be a mechanism other than voluntary retirement for the removal of some Members. Even making new appointments subject to a 15-year term limit would not—in the medium term—stop the exponential rise in the size of the House. This is the nettle we believe the Committee must grasp, if any further changes are to be made in advance of the full democratic reform for which the House of Commons has already voted.

4 March 2013

Prepared 16th October 2013