Political and Constitutional Reform CommitteeWritten evidence submitted by Unlock Democracy

About Unlock Democracy

Unlock Democracy is the UK’s leading campaign for democracy, rights and freedoms. A grassroots movement, we are owned and run by our members. In particular, we campaign for fair, open and honest elections, stronger Parliament and accountable government, and a written constitution. We want to bring power closer to the people and create a culture of informed political interest and responsibility. Unlock Democracy runs the Elect the Lords campaign to campaign for an elected second chamber. For more information about Unlock Democracy please see www . unlockdemocracy . org . uk

Introduction

1. Unlock Democracy campaigns for a fully elected second chamber. We believe that members of the UK Parliament should be accountable to the people of the UK and that the most pressing reform of the House of Lords is the need to introduce democratic legitimacy. It is now over 100 years since the Parliament Act 1911 was passed as a temporary measure until an elected second chamber could be introduced. However we recognise that the government has chosen not to seek to progress the House of Lords Reform Bill so democratic reform of the second chamber is not possible within this parliament.

2. Unlock Democracy understands the Committee’s desire to find into what smaller-scale changes to the membership and structure of the House of Lords would be likely to command a consensus. Many of the ideas being explored by the committee seem sensible straightforward at first glance. However in reality what appear to be small scale changes would in practice fundamentally change the nature of membership of the House of Lords and alter the composition of the House without any consideration of its appropriate powers; an approach that opponents of reform in both Houses criticised when the House of Lords reform Bill was debated.

3. Many of these proposals have been debated extensively before, such as in the work of the Leader’s Group which lead to the introduction of the voluntary retirement scheme, or in various versions of the Steel Bill. However this does not mean that they command a consensus. Indeed it should be noted that a number of the proposals in the original Steel Bill have now been amended or dropped entirely precisely because they were unable to command a consensus.

4. We recognise that there are many peers who are dissatisfied with the size of the current chamber and the impact this has on work in the second chamber. The House of Lords is one of the largest second chambers in the world. With 764 eligible members as of March 20131 it is twice as large as the French Senate, the next largest chamber and seven times larger than the Canadian Senate. All proposals for fundamental reform of the House of Lords have recognised this and recommended a substantially smaller second chamber. Most recently the government’s House of Lords Reform Bill proposed a chamber of 300 members although this was increased to 450 members after consideration by Joint Committee.

5. We are sympathetic to their desire to resolve this. However we do not believe this can be done through small scale changes as once you start to unpick the elements of the current settlement, it opens up issues which can only be addressed by the introduction of an elected second chamber.

6. In our view, the only way to meaningfully reduce the size of the chamber in an effective way that is fair to all parties is to limit its size in statute. Such a measure is likely to be as vociferously opposed by the House of Lords as democratic reform was and most of the arguments employed against democratic reform would also apply.

7. There are also issues not currently being considered by this inquiry that Unlock Democracy believes it is essential that should be addressed as a matter of urgency, in particular the issue of members of the House of Lords working as paid lobbyists.

8. Unlike in the House of Commons, there are no rules to prevent peers working as paid lobbyists to influence the UK government. One of the most controversial cases was Lord Blencathra who had been working as a paid lobbyist for the Cayman Islands.2 This work included lobbying the Chancellor to reduce the burden of air passenger transport taxes on the Caymans Islands and facilitating an all-expenses-paid trip to the Caymans for three senior MPs with an interest in the islands. Nothing that Lord Blencathra did broke any of the existing rules—he declared the Directorship in the register of members interests and never directly raised the Cayman Islands in debate or in the course of his parliamentary work. However the fact remains that whilst being a voting member of the UK legislature, he was also being paid by a foreign government to lobby the UK government. This is simply not acceptable. Nor is Lord Blencathra the only peer who is also a paid lobbyist; this is not restricted to one person or even one party. There are a number of peers who work for multi client lobbying agencies and as well as some who work as in house lobbyists. Research conducted by the Guardian found that nearly one in every five staff passholders in the House of Lords is involved in lobbying.3

9. Peers acting as paid lobbyists damages the reputation of the House of Lords and of Parliament as a whole. The committee has already considered the case for a statutory register of lobbyists and we recognise that this falls beyond the scope of the current inquiry. However if there are to be changes to the House of Lords, then we would strongly argue that peers’ lobbying activities should be more strictly regulated, and that working for or being a director of a multi-client lobbying or public affairs agency be banned outright.

10. Members of the House of Commons are also able to take on additional employment and although this can be problematic it does not raise the same issues as with peers. The demands on an MP’s time are much greater and they receive a salary in recompense. The daily attendance allowance is not intended to function as a salary for members of the second chamber. The daily attendance allowance is intended to be compensation for lost earnings due to serving in the House of Lords. In a number of cases, this is palpably not the case, and in fact serves as an additional tax free income for those peers fortunate enough to have a full time job in close proximity to Parliament. In our view, members of the House of Lords who opt to claim the attendance allowance must sign a statement confirming that they are not earning an income from any other source on that day.

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

11. The delay in completing reform of the second chamber has created the interesting constitutional position whereby there are some elections for membership of the House of Lords but the only people able to stand and vote in these elections are hereditary peers. Unlock Democracy regrets that it is still possible to claim a seat in the UK legislature on the basis of birth and would like to see this practice end. Such a move would require primary legislation.

12. However the Wetherill agreement allows for the presence of 92 hereditary peers until the second stage of reform. Despite the House of Commons voting in favour of creating an elected second chamber in both 2007 and in 2011, we have not yet reached that second stage of reform.

13. Removing the hereditary peers would significantly shift the political balance within the House of Lords, with 36 currently taking the Conservative whip, five sitting as Liberal Democrats and four sitting as Labour. Since 1997, appointments to the House of Lords have been conducted to broadly reflect the share of the vote at the previous general election, and this was made explicit in the 2010 coalition agreement.4 This will mean that their removal will either require yet more appointments to be made to ensure balance and thereby fail to resolve the fundamental issue of the size of the second chamber, or require a commensurate number of Labour life peers to be removed to retain balance. We do not believe that such a move is likely to be supported by the second chamber itself.

Measures to remove persistent non-attendees

14. Although superficially appealing, proposals to remove persistent non-attendees from the House of Lords raise fundamental questions about the nature of membership of the second chamber and its links with the honour of being given a peerage. In particular it would mean that membership of the House of Lords was no longer an appointment for life which would require legislative change. This would not be a small scale reform and would be unlikely to command a consensus.

15. Currently there is no requirement or even assumption at present that someone accepting a peerage is expected to attend a certain number of sitting days. Some members choose to attend only when subjects where they have direct experience or expertise are being discussed; others have careers which they do not wish to give up. A threshold would exclude these people from membership of the House of Lords and would be perceived as a move towards a model of full time membership. This has been opposed by a number of peers when this has been explored in the past, and indeed was one of the fundamental objections to the government’s proposals in 2012.

16. Removing non-attendees would not solve the current problems around the size of the House of Lords. The issue is not so much the number of those eligible to attend as the numbers who are choosing to do so. Average daily attendance in the House of Lords was 475 in the 2010–12 session, up from 388 in 2009–10. This compares to an increase in membership from 706 at the end of 2009–10 to 782 at the end of 2010–12.5 So while measures to remove non-attendees would formally reduce the size of the House of Lords, in practice it would make no difference to the issues that are currently concerning peers about the size of their chamber.

17. There are also practical considerations about how to introduce a threshold such as how to create a system that would not discriminate against those suffering from ill health or a temporary change in circumstances, what level any threshold should be set at, as well as how to adequately reflect the different types of work that go on in the House. It is worth noting that the Canadian Senate has a system whereby if a member has not attended at all for two consecutive sessions in the Senate, they can be stripped of their salary, staffing provision and other benefits. To date this has only be done once when it was found that a senator was living in Mexico and only attending at the beginning of the session to be able to claim his salary.

A moratorium on new peers

18. Unlock Democracy sympathises with those who would like a moratorium on the appointment of new peers but fail to see how this can be made to work with respect to party balance in the second chamber. In particular it would mean the government abandoning its stated aim of appointing new peers to reflect the vote shared received by political parties in the 2010 general election. Currently the only mechanism for adjusting party balance within the House of Lords is to appoint new peers. A moratorium would prevent parties from replacing peers who died and also prevent the government from appointing people who are not currently members of either house of parliament. There may well be good reasons for limiting such appointments, however it should be a deliberate choice rather than the by product of an attempt to manage the size of the House of Lords.

Fixed-term appointments for new peers

19. As with proposals to remove non-attendees introducing fixed term appointments for new peers would fundamentally change the nature of membership of the House of Lords and would require legislative change. It would also create a further category of peer, increasing the hybridity of the House which peers have frequently opposed when debating the introduction of elected members to the second chamber.

20. On a practical level there are a number of questions that would need to be resolved, such as what the appropriate length of term would be, whether there would be term limits or peers could be reappointed, whether there would be restrictions on such peers seeking election to the House of Commons. Peers appointed for fixed terms are also far more likely to be loyal to the leader who appointed them than peers who have been there a long while. They would appear to have all the perceived disadvantages of elected members but without any of the advantages in terms of democratic legitimacy.

A retirement age for peers

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

21. Procedurally, until 2011 the only option available to peers to “retire” was to take a leave of absence. This is an unsatisfactory system for a number of reasons. The fundamental problem is that if a member takes leave of absence there is no certainty whether or not they will return. Many members do return from leave of absence, sometimes even when they have not expected to do so. Most famously Lord Phillips of Sudbury announced his retirement from the Lords in 2006, only to return in 2009. The uncertainties of this system make it difficult to plan and do not solve problems relating to the size of the chamber because any of the members on a leave of absence could return at any time.

22. The voluntary retirement scheme for peers was introduced in 2011. To date it has only been used by two peers Lord Habgood and Lord Hutchinson of Lullington.6 This scheme is clearly not effective either from the point of view of peers who have expressed a desire to leave the House or in terms of better managing the size of the House.7

23. For a retirement scheme to be an effective way of managing the size of the chamber, the evidence suggests it would have to be a compulsory scheme, such as that in the Canadian Senate where members retire at 75. Nearly one third of members of the House of Lords are over 75 so this would be an effective method of reducing the size of the chamber.

24. However as peers are appointed for life, introducing a compulsory retirement system would be a fundamental change to the nature of membership of the House of Lords and would require legislation. It is unlikely that a compulsory system would be supported by peers. Certainly when compulsory retirement has been discussed in the past it has been argued that as there is no age limit in the House of Commons it would be inappropriate to introduce one in the Lords.8

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

25. The fact that at present members of the House of Lords can be convicted of serious offences, from fire starting to false accounting and perjury, serve custodial offences and remain members of the legislature, damages the reputation of the House of Lords. It reinforces the notion that politicians are somehow a class apart who are not treated in the same way as the rest of the country.

26. It is also worth noting that while MPs who are accountable to the public through elections are forced to resign their seat if they are convicted of a crime and sentenced to a custodial sentence more than one year, the appointed members of our legislature, who have no accountability mechanism, are able to retain their seats. This is unlikely to satisfy the public. Unlock Democracy believes that system the currently applies to the House of Commons should be extended to include members of the House of Lords.

The desirability, composition and remit of a Statutory Appointments Commission

27. Unlock Democracy does not believe that it is necessary to go beyond the present remit of the Appointments Commission, which recommends crossbenchers and examines the probity of political appointments. If an appointed element were to remain in a predominantly elected second chamber, then we believe that these appointments should be made by a Statutory Appointments Commission. Political patronage should not be the basis of membership of the legislature.

28. However we do not believe this is desirable before further reforms to create an elected second chamber. If, in the context of a fully appointed second chamber, a new Statutory Appointments Commission were also to take on responsibility for party political appointments we would be very wary of creating a very powerful but unaccountable body that would reinforce the opaque nature of appointments to the House of Lords.

29. The creation of a Statutory Appointments Commission would establish a permanent mechanism through which the membership of a wholly appointed House would be maintained. This would be against the expressed will of the House of Commons in its votes in 2011 and 2007.

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

30. Without term limits for members of the House of Lords, it is simply impossible to maintain party balance in the second chamber without its size rising exponentially, as has been clearly shown by the Constitution Unit.9

31. Even if an agreement on term limits could be made, it is not immediately clear how to determine the relative sizes of the different party groups. The coalition agreement proposes that it should be on the basis of the votes cast at the last general election. However, the current single member plurality system used to elect the House of Commons leads many people to vote tactically. Basing the composition of the House of Lords on this vote will significantly under-represent small parties and independents.

32. Codifying any principle based on the vote at the general election would fundamentally change the nature of the franchise. Voters would effectively be voting for two chambers. The voters of smaller parties would have an incentive to vote for the first party of their choice regardless of their chances at getting elected for a Commons seat, with a view to gaining representation in the second chamber. As such, many members of the House of Lords would be able to claim a direct mandate from the voting public. It is not clear to us why this would be regarded as preferable to direct election, especially since it would mean that members of the second chamber would continue to be unaccountable and appointed by party leaders.

Conclusion

33. Many of the proposals to reduce the size of the House of Lords without democratic reform, while superficially attractive, would either fundamentally change the political composition of the second chamber in an arbitrary manner or would be subject to the same criticisms directed at democratic reform itself, namely that it would lead to a “politicisation” of the second chamber.

34. The removal of hereditary peers, introduction of a retirement age and a moratorium on new peers would all put the Conservative Party at a significant disadvantage while putting Labour at an advantage. Unlock Democracy asserts that only the electorate is competent to make fundamental decisions regarding the political composition of a parliamentary chamber.

35. The other proposals will have negligible impact. Experience has shown that a voluntary retirement scheme would be ineffectual. The removal of persistent non-attendees would certainly have the effect of reducing the number of individuals permitted to sit in the House of Lords, but would do absolutely nothing to resolve the fundamental problem of too many members sitting in the chamber at any one time. The removal of any peer serving a custodial sentence of more than 12 months would remove a handful of peers, while leaving many others who have been convicted of serious charges free to remain in the chamber, without the political impetus which forces most MPs in a similar situation to resign their seats. Placing a statutory appointments commission would simply put appointment of the House of Lords further into the hands of a political establishment and away from the electorate.

36. Unlock Democracy believes that there are more urgent reforms which should be tackled, specifically the allowance system and the freedom of peers to work for multi-client lobbying agencies. In our view, these issues should command far greater parliamentary attention than piecemeal measures such as the Steel Bill.

27 March 2013

1 http://www.parliament.uk/mps-lords-and-offices/lords/composition-of-the-lords/ page accessed 2 March 2013

2 http://www.independent.co.uk/news/uk/politics/revealed-exconservative-minister-lord-blencathra-paid-to-lobby-for-island-tax-haven-7648252.html]

3 http://www.guardian.co.uk/politics/2011/nov/08/house-of-lords-passholders-lobbying

4 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/78977/coalition_programme_for_government.pdf p27

5 http://www.parliament.uk/briefing-papers/SN03900.pdf

6 Information supplied by the House of Lords information office

7 see this question from Lord Ashcroft http://www.publications.parliament.uk/pa/ld201213/ldhansrd/text/130318w0001.htm#13031812001848

8 http://www.telegraph.co.uk/news/uknews/1403675/Lords-will-block-compulsory-retirement-age-for-peers.html

9 http://www.ucl.ac.uk/constitution-unit/publications/tabs/unit-publications/152.pdf

Prepared 16th October 2013