Political and Constitutional Reform CommitteeWritten evidence submitted by Damien Welfare and Daniel Zeichner, the Campaign for a Democratic Upper House

1. The Campaign for a Democratic Upper House (CDUH) is a grouping of Parliamentarians and members of the Labour Party who support a second chamber which is wholly or largely elected. The group was formed in 2000, and has campaigned since for that objective within the Labour Party. We have also taken part in wider discussion of the issue. We made submissions in response to consultation under the last Government, and we gave written and oral evidence to the Joint Committee of the Draft House of Lords Reform Bill that reported last year. Our proposals for maintaining the primacy of the House of Commons were reflected in the recommendation by the Committee that there should be what it called a “Concordat” between the two Houses, in the form of parallel, identical resolutions as a Parliamentary mechanism to cement those aspects of the relationship that are dependent on convention.1

2. We are grateful for the opportunity to submit evidence to the Select Committee on its inquiry into what smaller-scale changes to the membership and structure of the House of Lords would be likely to command a consensus.

3. Our starting point is that the present House of Commons has voted by a majority of 342 for a largely elected second chamber, in approving the Second Reading of the House of Lords Reform Bill on 10 July 2012. It did so after a detailed report by the Joint Committee in the light of the appropriate composition, role and powers of the second chamber. The previous House of Commons also voted in March 2007 for a House that was either wholly elected, or 80% elected, by majorities of 123 and 38 respectively. We conclude that any measure that raises issues relating to reform, or that would affect a future democratic reform, should be examined in that context.

4. Against this background, the measures proposed in the inquiry do not amount to mere “housekeeping” in their effects, since they raise these wider issues to a greater or lesser extent. Apart from the proposal to exclude those convicted of serious offences, the measures would each, in different ways, amount to significant—or in some cases decisive—steps towards the creation on a permanent basis of an appointed House; without the opportunity for Parliament or the electorate properly to debate the issues involved.

5. Paragraphs 6–13 below comment on issues raised by the overall size of the present House, and the last question raised by the Select Committee; as to the scope for establishing a consensus on the principles that should determine the relative numerical party groups (and for codifying them). Paragraphs 14–29 comment on the remaining questions raised by the Select Committee.

The Overall Size of the Present House

6. The overall size of the House of Lords (761 peers eligible to vote at 28 February 2013) has not grown markedly since 2007 (738 eligible to vote), despite the number of creations since the last General Election; and it is still smaller than its size before the removal of the hereditary peers in 1999 (1067 eligible to vote).2 The increase in recent years has been in attendance, rather than in absolute numbers. (Average daily attendance rose in 2010–12 to 475, from 388 in 2009–10).3 The result has been that the chamber is crowded at Question Time; but this is not necessarily the case at other less favoured times of the day. There is increased pressure for places on Select Committees, which the leadership of the House appears to recognise.4 The fundamental problem, however, is that the majority of those life peers who are active wish to remain part-time members, but to have the opportunity to take part to the extent that they wish. Of the members eligible to vote, a smaller proportion turn up daily (see figures above), and it is evident that a far smaller number attend for the whole of each sitting day (no numbers are measured).

7. It is widely acknowledged that the number of those entitled to attend the present House is too large. The House is almost twice the size of the next largest second chamber (the French Senate). The Reform Bill withdrawn by the Government in August 2012 originally proposed a House of 300, which was amended to 450 in the light of a recommendation of the Joint Committee. If all parties were to accept a reduction in the size of the present House to 450 members (say 360 political appointees and 110 crossbenchers, Independents and Bishops), on an agreed basis as to the allocation of numbers, and with a process to reduce to those numbers proportionately in relation to each other by an agreed date, then measures to reduce the size of the House could claim a degree of coherence. There is no evidence, however, that there would be any consensus in favour of such a development, as to a principle of representation on which to base it, or that individual peers within the political parties would be willing to accept the degree of reduction that would be necessary to achieve this result. As an example of how many peers would need to be removed if the House were to adopt now a political membership of 360, and apportion the seats according to the voting shares of each party at the last General Election, the Conservatives would have to reduce their numbers from 213 to 130 (36%); Labour from 222 to104 (29%); and, Liberal Democrat from 89 to 83 (23%).5

8. The underlying problem is that there is no consensus on what balance the House should represent between the parties; and this arises in part because there is no consensus amongst those who wish to see an appointed House on a permanent basis as to what or whom it would represent. The idea that the present House is defined by expertise, as opposed to including expertise, is unsustainable, when 71% of the membership represent a political party, of whom a significant number are former MPs. Whatever experience of public life may be claimed by former MPs, it is not different from the expertise they had when they were members of the House of Commons: it does not distinguish one House from the other, but tends rather to make them more similar. While a minority of members are appointed for their expertise in a specialist field, that expertise will rapidly become out of date unless they remain involved with it; whereas the House includes very significant numbers of members who are retired from their principal occupation (and about half of the members are aged 70 or over).6

9. If the balance between the parties is to be based on the proportion of their party’s vote at the previous General Election, the size of the House would become unsustainable over time, as the Constitution Unit has argued cogently for many years. There are also a number of issues with using this formula as the basis of the allocation of seats in an appointed House, although the point is rarely debated:

(a)electors have voted for the House of Commons. There is no reason to read across from those votes to the representation of another House, especially given the variety of reasons for which voters may have made their choice for the lower House. These may include respect for (or dislike of) their local MP; tactical voting; or, local issues. As matters stand, no person who voted in 2010 was told that this would be a further basis on which their vote for the House of Commons would be used. On future occasions, there would be no opportunity for a voter who wished to see different representation in the two House to express that preference;

(b)the future impact on the outcome of elections to the Commons of counting the votes for the second chamber as well has not been examined, and would be ultimately unquantifiable. How does the fact that a voter is voting for the second chamber as well as the first affect the legitimacy of his decision for the House of Commons, on which the choice of the Government of the day depends; especially in a closely contested outcome?

(c)equally, if proportionality is the basis, there would be a distinct risk that the result in terms of appointments to the second chamber, which would be proportional, would be seen as more fairly reflecting the national opinion than the result for the House of Commons, with consequent risks for the perceived legitimacy of the outcome for that House;

(d)What in any event is the rationale for a House of Lords that reflects the political colours of the House of Commons of the day? How would such a result assist Parliamentary accountability or keep government on its toes? The Wakeham Royal Commission, for example, proposed this model for appointed members, but provided no rationale for it;

(e)How would any rationale be affected on those occasions where the vote for the winning party at a General Election is lower than that for its opponents (eg in 1951 and February 1974)? The opposition in the House of Lords would presumably be made the larger party;

(f)If the rationale were that the government of the day should have some advantage in the second chamber in order to help to secure its business, that is a matter of existing convention which is separate (and could be accommodated in a settlement as part of a democratic reform). It would be unlikely in any event to be greatly assisted by an outcome in which the governing party in the Commons would generally be the largest party in the Lords, but not have a majority.

10. If the balance derived from share of the vote should be applied only to new creations, as has also been suggested, there is no rationale discernible other than as a means to keep the numbers of peers down by comparison with applying it to the membership as a whole; while nodding very slightly to parties that feel entitled to more peers. The inherited position (eg at present, of Labour as the largest party in the HL) would remain until it was gradually eroded away with no rationale to support that (or any other) ongoing position. The proposal essentially accepts the existing position as to balance as a political fact which cannot be addressed in a principled way because of the existing large size of the House.

11. It appears that the supporters of an appointed House may have exaggerated the urgency of the problem of size, to try to hasten the adoption of rules which they hope will make an appointed House appear more acceptable in the long term. The real problem with the second chamber is over its legitimacy and ability to fulfil its functions, and (in this context) of the rationale over its future composition; rather than over its size as a self-contained issue.

12. It is often said that constitutional change requires consensus; and it is undoubtedly preferable where it can be achieved. But it is not generally the case that major constitutional change has come about other than as a result of a clash of forces or interests, or for party political reasons. There was little consensus behind the removal of the King by Parliament in 1649; or the Glorious Revolution of 1688; or the extension of the franchise in 1835; or its extension to many working men in 1867; or the removal of the Lords’ main veto powers in favour of delay in 1911; or the introduction of votes for women in 1918 and 1928; or, the reduction of the Lords’ delaying powers in 1949. The assertion of the Commons of its financial privilege, which has become accepted as a core convention, was made as a statement of a continuing challenge by the lower house to the power of the Lords from the late 17th century.

13. If the House of Lords (Cessation of Membership) Bill (the “Steel Bill”) were passed tomorrow, the consequences would be that voluntary retirement would fail to affect the numbers significantly (on the evidence of the enhanced leave of absence scheme, which has been taken up by two peers only), unless the parties organised a proportionate reduction of their numbers of the kind described above. In addition:

(a)even if they were prepared to do so, there would need to be an agreed rationale for membership;

(b)any rationale would call into question the appropriate composition of the House; and

(c)the passing of the Bill itself would amount to cementing or determining an appointed composition, because of the consequences in terms of establishing of appointment as a firmer basis of representation.

Remaining Questions by the Select Committee

Desirability, practicality and effectiveness of mechanisms to reduce the size of the Lords
(a) No longer replacing the hereditary peers

14. No longer replacing the hereditary peers would produce a wholly appointed House without a decision or national debate that this was the appropriate form for the second chamber. This is a fundamental point which goes far beyond mere “housekeeping” and should not be pursued merely for the reason that the numbers of life peers have become over-inflated. It would remove the rationale for the Cranborne/Weatherill amendment in 1999, which saw 92 hereditary peers remain as a form of guarantee of further reform.

15. It would also alter the composition of the House without any consideration of its appropriate powers; an approach that opponents of reform generally criticise. It would require legislation, and thereby raise the issue of wider reform, although depending on the scope of the Bill, it might be impossible for Parliament properly to debate the wider options.

16. It would have a disproportionate effect on Conservative numbers, requiring an increase in the number of appointments from that party. It would also increase the average age of the House.

(b) Removal of persistent non-attendees

17. Removal of persistent non-attenders would reduce the formal size of the House, but have no impact on its working size. It would thus have the appearance of change, while doing nothing to address the main problems identified by proponents of so-called “housekeeping” measures.

18. It would end the concept of life appointments to the second chamber without wider consideration of the appropriate composition of that chamber. It would require legislation to amend the 1999 Act, but this would raise the question of wider reform while being unlikely to offer the opportunity properly to debate it within the scope of the Bill.

19. It could also have the paradoxical effect of increasing attendance. (Clause 2 of the Steel Bill operates only at the end of a session, and excludes a member who does not attend once during that session). The measure would need to exclude short sessions, and provide for reminders and warnings. Depending on the facts, the removal of an individual’s right to sit in Parliament on grounds of a condition of attendance that was not present on their appointment could also be subject to legal challenge.

(c) Moratorium on new peers

20. A complete moratorium would disproportionately affect the party balance, and also prevent new Ministerial appointments. If there were no provision for like-for-like replacements on the death of a member, the balance would be likely to be affected over time to the disadvantage of one or more of the parties, or the Crossbenches; which in turn would affect the degree to which the House could hold the government to account. Yet if like-for-like replacements were allowed, there would be no reduction in size. Over time, moreover, as the existing membership became older, the overall effectiveness or vigour of the House could be expected to decrease. Over time, a moratorium would come to be based on no rationale of representation, relevant either to the previous Parliament or the current one. It could be acceptable only as a step to a further reform, of which it formed an integral and agreed part.

(d) Fixed-term appointments for new peers

21. This proposal too would raise the issue of the proper basis for the composition of the Lords, and would be widely seen to be a decisive step in the direction of an all-appointed house, and away from a democratic basis for the second chamber; again without a proper national debate of the rationale.

22. It would create a House with two types of appointed peers. It would raise immediate questions of the correct length of term, and whether this should be related to the electoral cycle of the House of Commons, and whether re-appointment should be permitted, which in turn raise questions as to the desirable degree of legitimacy of the House. Legislation would again be required, to amend the 1999 Act, and this would in the same way as the other measures above, raise the issue of wider reform, but on too narrow a basis to offer workable alternatives or the scope for proper debate.

(e) Retirement age

23. A retirement age would necessarily be arbitrary in its effects, removing some members with a considerable contribution still to make. It is also counter-intuitive, since an appointed House is by its nature at least older than average, and likely to be mainly elderly. The proposal would break the rationale for the alleged independence of the House, that its members are there for life. It would also make the House more uniform in age and outlook.

24. It would probably require some further creations to deal with the effects of disproportionate retirements on one or more of the political parties. In so doing, it would confirm the present balance of the House (or another balance, if agreed). This in turn would either be based on a rationale of representation that would amount to a step towards an appointed House, without a decision to that effect, or would merely replicate the existing balance without a rationale. The necessary legislation would again raise the issue of wider reform without according a basis for proper debate on it.

Effectiveness of the current voluntary retirement scheme

25. It will be evident from the fact that only two members have taken advantage of the current scheme, based on leave of absence, that it is ineffective.

Desirability and scope of expelling peers convicted of serious offence

26. The measure begs the question of the proper basis of the composition of the House, at least in a formal sense, since it is inherent in the nature of a life appointment that it cannot be cancelled. On the other hand, the purpose of excluding members who have been convicted of serious offences is understood. The measure is the least problematic of those suggested, in the context of the wider issue of reform. The problem is not a significant one in terms of the size of the House.

Desirability, composition and remit of a Statutory Appointments Commission

27. The creation of a statutory Appointments Commission, which would require legislation, would raise the whole question of the appropriate reform of the composition of the House, and create a permanent mechanism through which the membership of a wholly appointed House would be maintained. There is no need to go beyond the present Commission, which recommends crossbenchers and screens the probity of political appointments, unless the intention is to institute a more permanent reform. In the context of proposals for a membership without a democratic element, the creation of a statutory Commission would represent, and be seen to represent, a decisive step to a permanent appointed House.

Scope for consensus about principles to determine relative strengths of the parties, and for their codification

28. In the light of the individual difficulties in terms of party balance, and the wider implications for reform, raised by a number of the suggested proposals, as outlined above, it may be apparent that there would appear likely to be little scope for consensus on those grounds. The major issue raised by the Constitution Unit, in relation to the uncontrollable growth of the House if a basis of appointment in relation to votes were adopted, appears insuperable. The more limited proposal for appointments of new peers in proportionate to votes at the last General Election appears to offer no governing rationale, and would have only a limited effect on the existing balance over time.

29. Any consensus, if it could be achieved, that was not expressly linked to a wider reform would pre-judge that question, when that issue is live and unresolved, in a way that would be unhelpful to the process of coming to an outcome on this issue that can command a broad consensus in the future.

Conclusion

30. While the House of Lords has approved the Steel Bill (ie on retirements, and the exclusion of non-attendees and those convicted of serious offences), as the government has indicated, even the first two of those issues raise significant questions of the wider scope of reform, and there appears to be no consensus for them outside the Lords. The more substantial issues of term appointments, or the creation of a statutory appointments commission would raise those issues even more directly. We note that the version of Lord Steel’s bill passed by the Lords did not include a statutory Appointments Commission, unlike his original Bill. We are sceptical that the representatives of the political parties in the Lords would be willing to countenance a significant reduction of peers down to a level that would equate to the size of other second chambers; while it would be unacceptable for the issues of principle raised, as to whether an appointed House was appropriate, to be approached via an apparently limited change with much wider but hidden implications. On this basis, it would appear unlikely to us that the measures above would command a consensus (apart from the exclusion of serious offenders); at least if they could be expected to have much practical effect.

31. Even if they did, the consequences in terms of making significant constitutional changes without undertaking wider debate, and whose long-term implications would run counter to the expressed view of the House of Commons, should in our view rule them out.

26 March 2013

1 Draft House of Lords Reform Bill Committee, HL Paper 284–1; HC 1313–1; Session 2010–12, Report, Volume 1, Conclusions, paragraphs 15 and 16.

2 Lord Hill of Oareford, 28 February 2013, col 1178

3 House of Lords Statistics, House of Commons Library Note, 4 July 2012

4 Lord Hill, 28 February 2013, col 1182

5 Membership figures taken from Parliament website, 24 March 2013. The remaining 12% of the votes in 2010 were taken by minor parties. If a quota were adopted before a party achieved representation in the second chamber (as proposed by the Wakeham Commission, paragraph 11.40), but assuming also some provision for regional parties, these figures would be slightly increased.

6 HC Library Note (above), June 2012

Prepared 16th October 2013