Political and Constitutional Reform CommitteeWritten evidence submitted by Mark Ryan

1. My name is Mark Ryan and I am a Senior Lecturer in Constitutional and Administrative Law at Coventry University. My submission, however, is made in my own personal capacity and indicates my personal observations in respect of the reform of the House of Lords. It in no way reflects the views of my employer (Coventry University).

2. In the absence of long-term reform of the House of Lords being realised in the foreseeable future, in the interim it is crucial that small incremental steps to reform the chamber are undertaken. This is because the option of standing still and doing nothing is not viable given that it is inevitable that new peers will be appointed during the remainder of this Parliament, thereby further expanding the size of the House. Concern has already been expressed, both within and outside of Parliament, about the increasing number of peers, most recently by the House of Lords itself in a debate and vote on a motion in late February 2013. It is important to remember that any small scale reforms agreed and legislated on at this stage would not prejudice fundamental long-term reform of the House as any incremental measures could be superseded in due course. It must be recognised however that for some there would be a fear that such interim reforms would merely serve to cement an appointed House by addressing anomalies of the present House and thereby dissipate any appetite for more fundamental reform. In order to ensure long-term reform is not side-lined, it is suggested that any small scale reforms (assuming they were set out in statute) should be subject to a sunset clause of five years which would at least force Parliament to revisit and debate the issue of Lords’ reform at a future date.

3. There is widespread consensus that there should be no place for a hereditary element in a fully reformed House; however there would be disagreement as to the timing of the departure of the hereditaries. The immediate abolition of hereditary by-elections, therefore, would not be without controversy in some quarters. Although abolition would not remove any existing hereditary peers, but simply not replace them when they died, nevertheless for some, this would still breach the agreement of 1999 that the hereditaries would remain until “Stage 2 reform” (albeit this was not actually defined). It should be noted that if the purpose of retaining a hereditary element was to act as a spur and catalyst to guarantee further long-term reform, this has clearly failed. Today, 14 years after the passage of the House of Lords Act 1999, fundamental reform is nowhere in sight (at least not during this Parliament). At the very least, not replacing hereditary peers who died would, albeit in a very small way, help reduce the size of the chamber.

4. In theory it would be a sound idea to remove persistent non-attendees; however it could prove problematic in its application. Although any absence resulting from a major illness could be accommodated, any threshold for attendance would necessarily be an arbitrary figure. If for example the threshold was set for a minimum of five attendances during a session, presumably a member could simply turn up on five occasions only and satisfy the requirement. In addition, what exactly would attendance mean: would it mean on the Floor of the House or in a committee and further, would it mean actually contributing to proceedings and/or voting?

5. In order to stop the House increasing in size, it is imperative that there is an immediate moratorium on the appointment of new peers. Alternatively, if this is not realistic, at the very least restraint should be exercised in relation to future appointments as called for in 2011 by the Leader’s Group on Members Leaving the House and more recently by the House of Lords itself in a motion in late February 2013. It is suggested that the creation of new peers should be related directly to establishing arrangements for the removal of some existing ones.

6. If a moratorium on the creation of new peers is unacceptable, a less drastic, but highly attractive measure would be to have fixed terms for peers (although presumably this would only apply to future members entering the House). The term could be set for a short period of five years in order to demonstrate that the existing chamber was merely a temporary staging post pending long-term reform to be agreed in due course. One obvious disadvantage is the distinct possibility that such a short period might actively discourage appropriately qualified candidates to put themselves forward for nomination.

7. A retirement age could be imposed on peers and this would be consistent with the position in relation to other elements of our Constitution such as judges. It would appear that retirement could have a drastic impact in reducing the size of the chamber (the effect of which would be dependent upon where the age is pitched). There nevertheless remains the problem of forced retirement given that, from a constitutional and indeed ethical perspective, such life peers were appointed on the understanding that it was for their lifetime.

8. Although only a couple of members have taken advantage of the voluntary retirement scheme, it should nonetheless be placed on a statutory footing. In addition, in order to encourage members to retire a financial inducement (albeit modest) should be made available. Although the Coalition Government is opposed to the funding of such a financial incentive, in the grand overall scheme of public finances, such awards would be modest and have the distinct benefit of helping to bring down the size of the chamber.

9. The disqualification arrangements for members who commit criminal offences in the House of Lords should be the same as for MPs in the Commons. As a result, there should be statutory provision that any member who is convicted of a criminal offence with a penalty exceeding one year be expelled from the chamber. After all, the old adage that lawbreakers must not be lawmakers should apply equally to both chambers.

10. There must be a statutory Appointments Commission with its powers and responsibilities set out clearly in an Act of Parliament. Although from a constitutional perspective the establishment of the Appointments Commission in 2000 was a welcome temporary expedient, given that long-term reform is still some way off, it is now appropriate that the Commission be placed on a statutory footing. As it performs a crucial constitutional responsibility of recommending parliamentary appointments (and would continue to do so), it should be independent of Government and be accountable to Parliament. The Commission should also be overseen by a newly created Joint Committee. The remit of the Commission should include considering the suitability (and not just the propriety) of potential party political appointees put forward by the political parties. In addition, consideration should be given to whether the Commission should require political parties to provide an extended list (ie “a long list”) of potential appointees which the Commission could then choose from. The Commission should also determine the overall party balance within the chamber and recommend appointments accordingly. The size of the Commission (ie whether it be 7, 9 or 11 members) is a relatively minor issue, although given that it would be involved in selecting party political appointees it would be appropriate to have a minority of Commissioners associated with the main political parties.

11. In the absence of any exit strategy for members to leave the House, the inherent problem in making interim appointments to the chamber so that it reflected the share of votes cast at the previous general election, is that the composition of the second chamber will inexorably steadily ratchet upwards. In other words, the chamber would be in a constant state of “catch up” and burgeon in size. If, however, the House must reflect the relative strengths of the political parties, then this must be achieved by an independent Appointments Commission with the formula for doing so set out in statute. This formula should nevertheless allow the Commission a degree of flexibility in recommending appointments given the size and composition of the chamber at the relevant time.

6 March 2013

Prepared 16th October 2013