Political and Constitutional Reform CommitteeWritten evidence submitted by Dr Michael Gordon, Lecturer in Law, Liverpool Law School, University of Liverpool

Overview

1. After the collapse of the coalition government’s House of Lords Reform Bill in August 2012, the Political and Constitutional Reform Committee’s decision to commence this new inquiry is very welcome. Viewed in the light of this recent failure to reconfigure dramatically the upper chamber of Parliament, the committee’s cautious approach to the next steps in Lords reform is understandable. Yet it is far from clear that seeking to establish a consensus around “smaller-scale changes to the membership and structure of the House of Lords” is the right way to proceed.

2. Instead, it will be argued below that comprehensive reform of the Lords remains a credible prospect in the next Parliament, and that it should continue to be pursued. Further, it may be that we can best make progress towards addressing the significant concerns identified in the committee’s call for evidence through a renewed focus on the process by which a broader package of Lords reform could be successfully developed.

Context

3. The 2012 Reform Bill was defeated and subsequently withdrawn in complex circumstances. Two critical factors may nevertheless be identified as having contributed to its downfall. First, the collapse of the 2012 Reform Bill was a result of a failure of political will. A lack of political support for the proposals was evident both within the coalition, and between the coalition and opposition. Secondly, the character of the proposed reform to the House of Lords—or indeed, the matter of whether reform of any kind ought to be implemented at all—crucially contributed to the defeat of the Bill.

4. It is important to note, however, with respect to the interaction between these two factors, that the failure of political will was not entirely the result of dissatisfaction with the character of the proposed reform. While the Conservative rebels who voted against the Bill at second reading can be broadly understood to have done so because of their disapproval of the proposals, the Labour opposition voted in support of the principle of Lords reform, despite doubts about the quality of the proposals. It was Labour’s refusal to support a programme motion limiting the time available for debate of the Bill, in conjunction with the prospect of a further Conservative rebellion against the very notion of Lords reform, which led to the withdrawal of these proposed changes.

5. While there is consequently no prospect of reform of the House of Lords being resuscitated in the present Parliament, this does not mean that the issue will inevitably slip off the political agenda following the general election scheduled for 2015. Indeed, Lords reform has already proved to be an issue of remarkable resilience, remaining a matter of debate for over a century. All three major UK political parties now accept that the Lords is in need of reform, having committed to bring about change in their 2010 manifestos (distinguishing this issue markedly, for example, from the also failed attempts to reform the voting system for elections to the House of Commons). That the 2012 Reform Bill failed to achieve this does not mean that these manifesto commitments should be treated as empty, or that they will not be renewed as we approach 2015. Moreover, we should not rule out the possibility of Lords reform being re-employed as a bargaining chip between potential coalition partners—perhaps in particular the Labour party and the Liberal Democrats—depending on the outcome of the next general election.

6. Against this backdrop, there is nothing to compel those who support fundamental reform of the composition and/or role of the House of Lords to resort to seeking to generate consensus around a more modest set of changes to the upper chamber. Although reform of the Lords is not imminent, there is a credible prospect that it may once again become a live political issue in the next Parliament. In such circumstances, it is unlikely that much will be gained by adopting the starting point of attempting to establish consensus around a series of small-scale changes. Indeed, it is arguable that a consensus already exists in favour of substantial change—the key difficulty in relation to Lords reform is precisely what kind of substantial change ought to be effected.

Specific Suggestions of the Committee

7. Notwithstanding this broader problem with pursuing small-scale reform of the House of Lords, the concerns identified in the committee’s call for written evidence are significant, and deserve attention. In particular, the size of the House of Lords has become impossible to defend, and the proposed mechanisms for resolving this problem could, considered in isolation, be supported in principle. The most attractive of the options proposed would be the non-replacement of hereditary peers upon their death, although the more radical option of removing all hereditary peers outright would be a more effective means of reducing the size of the upper house, and is unquestionably justified on democratic grounds.

8. Measures to remove persistent non-attendees would also be welcome, both to assist in reducing the size of the Lords, and in principle. Similarly, a retirement age for peers could be a useful and effective way to reduce the size of the upper house, given that at 30 April 2012, 50% of peers were aged 70 or over, with 18% of members of the Lords over 80 years of age. A retirement age for peers would also be of value in so far as it might contribute to a reduction in the median age of members of the Lords, which was 69 at 30 April 2012, potentially enhancing the extent to which the upper house would appear to be representative of UK population as a whole (statistics from “House of Lords Statistics”, House of Commons Library, Note SN/SG/3900, 4 July 2012).

9. A number of the suggestions highlighted in the committee’s call for evidence would, however, be more problematic. A moratorium on new peers would be a less appealing means of controlling the size of the Lords than the measures considered above. This proposal would also be very unlikely to command widespread support, as it would limit the ability of future governments to restructure the composition of the Lords to reflect the relative strength of the parties in the House of Commons. This inclination on the part of successive governments indicates that, so far as there is scope to establish a consensus about the principles which should be used to determine the relative strength of the different party groups in the House of Lords, it would be likely to be an undesirable consensus. To codify or politically entrench the principle that each government is entitled to remake the House of Lords in the image of the Commons on a permanent basis would lead to further inflation in the size of the upper chamber, and make a reduction in its membership more difficult to achieve. Further, it is very difficult to envisage an alternative principled solution to this problem which might attract consensus.

10. The committee is also right to identify the way in which (or indeed the very fact that) life peers are selected by the government as being a major cause for concern. Yet the proposal that a Statutory Appointments Commission be created seems to take us beyond small-scale changes to the House of Lords, and back to more fundamental questions about the next steps in Lords reform. To assess the desirability of a Statutory Appointments Commission—whether with responsibility only for non-political appointments, or with a remit which also encompassed political appointments—requires consideration of the advantages and disadvantages of selecting peers by appointment in and of itself. And for those who would maintain that the members of a legislature should be democratically elected and accountable, a Statutory Appointments Commission, while preferable to the present arrangements, would be an unsatisfactory response to this legitimate concern.

11. It is therefore difficult to evaluate the desirability and practicality of small-scale changes to the composition and structure of the upper chamber without being drawn back into the larger debates about Lords reform. Given the political capital and legislative time which would be required to make even modest changes to the upper chamber, a more attractive way forward would be to try to address justifiable concerns about the size of, and means of appointment to, the House of Lords as part of comprehensive reform package. And this is especially the case because, as argued above, the prospect of complete reform of the House of Lords returning to the political agenda in the next Parliament should not at this stage be discounted.

Constitutional Reform Process

12. That the consideration of small-scale changes to the House of Lords is unlikely to provide a fruitful way forward does not mean that Lords reform should be neglected until political impetus is revived. The critical question remains: what kind of substantial change ought to be effected? At this stage in the long history of Lords reform, we have a wealth of solutions available, but disagreement as to which ought to be preferred. In such circumstances, as Professor Rodney Brazier has long argued (see eg Constitutional Reform, 3rd ed. (OUP: 2008)), we might benefit from a focus on the methodology of constitutional reform, rather than the substance of the reform itself. In particular, I have argued elsewhere that a citizens’ assembly might be convened to consider the question of Lords reform, with the aim of developing proposals with enhanced authority and legitimacy, and potentially serving to bypass deadlock or intransigence among political elites (M. Gordon, “Time for a Citizens’ Assembly on Lords Reform?” UK Const. L. Blog (17 October 2012), available at http://ukconstitutionallaw.org/2012/10/17/mike-gordon-time-for-a-citizens-assembly-on-lords-reform/; see also written evidence submitted with B. Thompson, PCRC, Do we need a constitutional convention for the UK? (2012), 29).

13. A citizens’ assembly on Lords reform could potentially offer a very useful democratic solution to a problem politicians have been unable to resolve, as well as being a normatively appealing way of increasing popular engagement with constitutional issues in its own right. Yet this is clearly only one way forward, and could well fail to attract the support of political parties, at whose initiative such an experiment would need to be instigated. The underlying point is that to make progress on Lords reform—and perhaps political reform more generally—it is important to reflect on how we can enhance the process by which proposals for constitutional change are developed and approved. And, crucially, we must explore new ways to engage citizens in the process of constitutional change if the democratic potential of the UK constitution is to be fully realised.

14. With respect to reform of the upper chamber of Parliament, if the key objection to the continued existence of the House of Lords is its undemocratic nature, it would be apt for its future to be settled by a group of UK citizens, subject to the approval of the entire electorate at a referendum. The committee might thus consider whether the suggestion of a citizens’ assembly is one that it could support as part of a more radical plan for the next steps in House of Lords reform.

25 March 2013

Prepared 16th October 2013