Political and Constitutional Reform CommitteeWritten evidence submitted by Professor Iain McLean, Professor of Politics, Oxford University

General

It is widely believed by both academics and practitioners that the House of Lords is in need of reform. Although some individual academics and Peers have opposed reform, the following points are quite widely shared:

In its current form the House is unmanageably large and set to become larger. It is believed to be the largest second chamber in the democratic world.

Although many members make an enormous contribution to its traditional and undeniably important scrutiny role, many do not.

The opportunity (for whips or ad hoc interest groups) to “ambush” business by encouraging peers who never normally attend to come and vote makes its decisions unpredictable.

Rules and conventions for debate which worked in an earlier and more homogeneous era (eg, the “Salisbury Convention”) are under strain.

That the peerage functions both as an honour and as a means of appointment to the legislature leads to confusion.

The fact that peerages are for life makes the Lords an elderly house. The average age of Members is 69 (as at 12 October 2011. Source: House of Lords website). This may grant wisdom at the expense of disconnection from many issues of public policy.

One class of peers (the Lords Spiritual) is currently restricted to men.

The laws of succession entail that hereditary peers are more likely to be male than female.

Providing adequate office space for Peers (something they currently lack) would be extremely expensive.

The deal to keep hereditary peers in the Lords until the completion of reform, made in 1999 between the then Conservative leader in the Lords and the then Labour Prime Minister, probably needs to be re-examined unless reform is restarted by a future government. None of the interim measures discussed below can plausibly be regarded as the “completion of reform” which the then Government regarded as the date after which hereditary peers should leave the House.

The right of the Prime Minister to nominate peers, and the desire to retain party balance, work together to ensure that the house will get bigger and bigger. Every time the complexion of government changes at a General Election, the incoming Prime Minister will use the right of nomination to rebalance the House. At any following General Election in which the pendulum swings back, the new Prime Minister will do the same. Therefore the total size of the house has no upper bound.

Most investigations of these matters since 1999 have concluded that the most plausible stable solution to these problems is a scheme of elections by halves or thirds of the members of the house for a fixed, non-renewable term, by proportional representation, to a substantially smaller house. Such a scheme was proposed by the Conservative Party’s Mackay Commission in 1999; by the Public Administration Select Committee in 2002; in the cross-party “Breaking the Deadlock” report of 2005; by the Labour Government White Papers of 2007 and 2008; and in the recently abandoned Government Bill.

Comments on the Committee’s Specific Questions

The desirability, practicality and effectiveness of mechanisms for reducing the size of the House of Lords, including the following:
 — no longer replacing hereditary peers in the House of Lords when they die

This is widely seen as the most minimal possible change. It is unlikely to lead to the removal of hereditary peers until perhaps the 2040s.

 — measures to remove persistent non-attendees

These are unlikely to achieve anything. A non-attender with a guilty conscience has the right (some might think the duty) to apply for leave of absence (currently 38). Non-attenders who do not have a guilty conscience, or who value the opportunity to attend, however rarely, will have an incentive to continue to attend on the minimum number of occasions required to retain their membership.

 — a moratorium on new peers

This has some obvious consequences:

the average age of peers will continue to rise;

unless ministerial appointments are exempted, no new Lords ministerial appointments can be made;

the House cannot be rebalanced to reflect party support in the country;

if applied to Lords Spiritual, their absolute numbers will gradually reduce; and

if not applied to Lords Spiritual, their relative numbers will gradually increase.

 — fixed-term appointments for new peers

This principle applies in virtually all other areas of public and commercial life and therefore would seem sensible.

 — a retirement age for peers

If implemented, this should incorporate an appeals procedure for a peer reaching the retirement age who wishes to show (to a body that would have to be set up for the purpose) that s/he continued to make an important contribution. Any such extension should be for a fixed period of time but could be renewed.

 — The effectiveness of the current voluntary retirement scheme for peers introduced following the recommendations of the Leader’s Group on Members Leaving the House

There is no evidence that this scheme has been effective.

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

The criteria for expulsion should be the same for both Houses, and the decision should be taken out of the hands of the members of the House. They could be aligned with other relevant criteria, eg, for ineligibity to be a charity trustee or company director. Alternatively or in addition, sanctions imposed by a professional body could be taken into account.

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

If a statutory Appointments Commission were to be appointed then commissioners should be appointed by the standard procedures for public appointments. The Commission should be a non-departmental public body answerable to Parliament (perhaps to a Lord Speaker’s Committee analogous to the Speaker’s Committee that is responsible for the Electoral Commission). The Commissioners, and those whom they appoint, should be bound by the Nolan Principles. No Commissioner should be nominated by Ministers or by any political party. The remit of the statutory Commission should be essentially the same as that of the present Commission.

 — 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

If the House is to become a fully nominated one, assuming that hereditary peers (and perhaps Lords Spiritual) are to disappear, 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. Such rebalancing would take as its denominator the number of peers currently taking a party whip, ignoring cross-benchers. The standard should be votes, not seats, as the Commons electoral system does not award seats in proportion to votes. 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. Assuming that party peers who die or resign during a parliament are not replaced (so as to leave some room for rebalancing without triggering the boundless growth in House size mentioned above) it will be an empirical question whether the rebalancing would still lead to the House growing after every election. This could be checked with some research on the incidence of death and resignation among party peers in recent years; but a change in rules would change the incentives to resign or seek leave of absence, so the past would not be a reliable guide to the future.

A more modest version of the above plan would apply the latest party balance to the cohort of new party peers introduced after each General Election.

Codifying such principles could be difficult, as self-regulation potentially collides with partisan interest. 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 (eg, parties which pretend to merge or split in order to cross thresholds or prevent their rivals from crossing thresholds). The Electoral Commission could be charged with producing a code for such matters. If the House does not accept the code, there could be a moratorium on new creations until the House and the Electoral Commission have produced a mutually agreeable code.

In summary, most of the changes proposed by the Committee are interim and are unlikely to lead to a viable and credible Second Chamber.

21 March 2013

Prepared 16th October 2013