Political and Constitutional Reform CommitteeWritten evidence submitted by Dr Chris Ballinger, Academic Dean & Official Fellow, Exeter College, Oxford

1. This submission comments on the specific questions posed by the Committee in its terms of reference, and draws upon my research into the history of House of Lords reform. My wider analysis of the complexities of House of Lords reform has been published as The House of Lords 1911–2011: a century of non-reform (Hart, 2012).

2. Changes to the membership of the House which are to be both significant and binding require legislation. Since 1921, successive Governments have taken “ownership” of reform of both composition and powers. Numerous Private Members’ Bills on Lords reform, from both Houses and over several centuries, have been doomed to fail.

3. Many of the issues with which the Committee is concerning itself require, or would be made significantly easier by, the severing of the link between appointment to the peerage and the receipt of a Writ of Summons to sit in Parliament, and therefore not just the severing of the honours system and membership of Parliament, but also the ending of the Prime Minister’s right to determine the composition and the size of the House (including ending the theoretical question of swamping the Lords). That would require legislation, and would likely be controversial.

Which Changes are “Likely to Command a Consensus”?

4. No significant and transformative changes are “likely to command a consensus”. House of Lords reform has never been a matter of all-party agreement. If an agreement on the problems to be addressed can be attained quickly, then it should be sought; but, to be successful in implementing proposals, reformers must know their own mind, be determined to see through their proposals and overcome opposition, find Parliamentary time without too many impediments, and produce proposals which are discrete and simple. Seeking consensus on proposals to give effect to Lords reform, even if there is widespread agreement on broad principles, is a fast-track to inertia.

Mechanisms for Reducing the Size of the House of Lords

5. There seems to be a measure of agreement that the House of Lords, as presently constituted, is too large. Currently, the Lords has 755 members eligible to sit and vote (plus 11 who are disqualified and 42 who have leave of absence), which is about the same size as the House in 1958, before Life Peers were introduced. However, we need clarity about the nature of the problem. The issues include: lack of space and pressure on the House’s facilities; non-attendance; effective participation by those who do attend; comparative size with other legislatures. These different problems call for differing solutions. The last of these problems—comparative size—is caused by the current expectation that membership is, for most Members, a part-time occupation: unless Parliament wishes to create a full-time upper House, the size question is one of attendance, not membership.

6. No longer replacing Hereditary Peers. Though this would, as explained below, be a desirable tidying-up of the 1997 Government’s agenda, it would not substantially reduce the size of the House. The current hereditary membership of the House is relatively young, and peers tend to live even longer than the national average. This would reduce the House by 92 members, but not imminently: the youngest elected Hereditary Peer is currently 42 years of age. Ending the by-elections would require legislation, and would likely arouse substantial opposition.

7. Removing non-attenders. There is a strong argument to mitigate reputational risk by removing those who do not contribute to the work of the House. The Writ of Summons requires attendance. Newer peers are often told that they are expected to contribute, and if membership is to mean more than very occasional speaking and voting then a minimum level of familiarity with the workings and business of Parliament, shown through attendance, should be maintained by members. Systems of leave of absence have never been effective. In devising a new scheme, care should be given to define the minimum contribution, so as not to disadvantage those who whose contribution to the House is enhanced by keeping up professional commitments. Though it was strongly argued by Lord Exeter in the 1950s (when non-attenders outnumbered attenders by 4:1) that the removal of non-attenders could be enforced by a change in Standing Orders, a much safer route would be to impose a scheme by legislation. However, such a scheme is unlikely to cut membership substantially, even if well-drafted; and it would address only the question of the size of membership, not the numbers attending.

8. Moratorium on appointments. This would reduce the size of the House only slowly, and by attrition, and would inevitably reverse as soon as the moratorium ended. It would, though, have the effect of depriving the House of new members (including new ministerial members) for some years. A key problem is that a moratorium would not be enforceable without legislation: the right of the Prime Minister to recommend peers cannot be extinguished by edict. If legislation was considered, it might take the form of imposing a cap on the maximum number of writs of summons for Life Peers at the present number (as was done with regard to Bishops in 1847).

9. Removing the Bishops. This would reduce the size of the House by just over 3%, and though it would make a clear statement about membership, it is likely to be controversial and difficult in the short term.

10. Radically decreasing the size of the House. Several 20th century schemes for radically reducing the size of the House involved qualifications for peers to receive a writ of summons, or a limit on the number of life creations, or both. However, it usually proved too difficult to define a qualification, beyond broad categories such as being a Privy Councillor. Such a limitation would not bring expertise into the present-day House. If the House sought to introduce qualifications for sitting, over and above the possession of a life peerage, it should think in terms of competencies, not labels (ie that someone thinks critically and with a scientific mind, rather than that someone holds, or held, a particular chair at a university); but a hard-and-fast definition of relevant competencies would be difficult to achieve. Such choice would be better left to discussions within party groups.

11. Perhaps the most practicable method for reducing the size of the House, without entirely altering the basis of its composition (such as through fixed-term appointments, detached from the peerage) would be to insist that each party group in the Lords (and the crossbenchers) had to reduce their numbers—the numbers can be chosen according to general election votes cast, or some other agreed measure (and could be changed periodically). The number of seats in the upper House would therefore be limited, and not all Life Peers would be Members. This has precedents not just in the selection of hereditary peers since 1997; but also in the selection of members of the Scottish and Irish peerages before 1963, and in the selection of Lord Bishops since 1847. It could be left to each party group to determine their preferred method and criteria of selection, within their number cap.

Ending the Hereditary Peer by-elections

12. The hereditary qualification for membership of the House of Lords should be discontinued. The manifesto commitment on which the Labour Government came to power in 1997 clear and unambiguous: to remove the right of hereditary peers to sit and vote in the Lords “As an initial, self-contained reform, not dependent on further reform in the future”.1 By conceding that 92 hereditary peers could remain (qua their hereditary peerages), the Government breached its own manifesto commitment. It is not clear that this was—or should have been—necessary to secure the bill; but the Government of the day thought it wise. The acceptance of the by-elections, and of placing these on the face on the bill, was even more inexplicable—and a much more severe breach of the Government’s manifesto commitment. It is time to complete the passage of the 1997 proposals by ending not just the by-elections, but also the right to a seat in Parliament by virtue of a hereditary peerage.

Retirement

13. A retirement age would not, without a drastic and arbitrary effect, solve the issue of the size of the House of Lords’ membership; nor would it accord with the principles of competence, rather than age, on which other organisations are now for the most part required to take decisions about their employees. Though members of the House of Lords are not, of course, employees, any retirement provision which was not justified on proportionate and legitimate grounds would be difficult to explain to the public.

14. Peers have—at least in the modern era—been appointed to Parliament for their lifetime.2 Nonetheless, it is worth remembering that a retirement age is not unknown to Parliament: currently, 26 Members of the House of Lords (the Bishops) are compulsorily retired from the service of the House at age 70, though some are kept on beyond retirement by being appointed Life Peers. Judges, likewise, retire at 70;3 though when Life Peerages were introduced in 1958, judges, too, were appointed for life.4 To introduce a retirement age would mean to deprive those holders of a life peerage, who had attained the retiring age, the right to be in receipt of a Writ of Summons: to do so would require clear and unambiguous wording, contained in Statute.

15. Rather than legislating for a retirement age, legislating for fixed-term appointments might be a more desirable solution. Fixed terms are widely used in public life; indeed, the next Chair of the House of Lords Appointments Commission will be appointed on a 5-year non-renewable term. Fixed terms allow Members to contribute greatly to the work of the House and then take their skills elsewhere, whilst being replaced by those whose energy and experience is fresher. Members appointed to fixed terms of, say, three Parliaments would ensure both continuity and turn-over. If agreed, the scheme could enable the re-appointment for one further period if the appointing authority is satisfied that a re-appointment was more justifiable than bringing in a new member. Proposals should include a prohibition from standing for the House of Commons for a set period beyond the term of office in the Lords. Current life memberships of the House could be converted into fixed terms.

Expulsion of Offenders

16. The disqualification from sitting in Parliament of a person convicted of a criminal offence should not differ by House of Parliament. Nor should lower standards apply in Parliament than elsewhere on other matters.

Relative Party Composition

17. There seems to be some measure of agreement that no party should seek a permanent majority in the upper House. One way of achieving that is to relate party composition to the votes achieved in the previous three or four House of Commons elections, with a proportion of members appointed after each election. Cross-bench places could be retained, if desired. If membership continues to be for life, a continual re-balancing, especially where an outgoing government has created peers in its dissolution honours list, would increase rather than stem the size of the House. Therefore an agreement on party composition should be brought into effect only alongside a number-cap, or time-limited appointments, or a severing of the link between the peerage and the House (or all three), to avoid a spiralling of the number of members as election results change over time.

Statutory Appointments Commission

18. Putting the Appointments Commission on a statutory basis has featured in all Government-sponsored reform proposals since 1997. If it can now be argued that it has established the independence it needs without a statutory footing, then nothing can be lost by giving it one; if the Commission suffers from any perception of non-independence, then it certainly should be reinforced by statute. The protection of the Commission by Parliament is an important safeguard, and a re-assurance to the public that it is a genuinely independent Commission.

Other Issues

19. Powers. The Committee has not asked about powers; but the power of the House of Lords is likely to change if there are significant alterations to its composition, as it did after 1958 and after 1999. It is time, perhaps, to accept that all the underpinning assumptions that justified the Salisbury–Addison doctrine have fallen away. Of more specific measures, replacing the veto over secondary legislation with a power of delay might improve the effectiveness of the House.

20. The name for members of a reformed upper House is, perhaps, less fundamental than the nature and number of that membership itself. However, if a radical reduction is numbers is achieved without a “big bang” reform, then some way needs to be found to enable the public to know which peers are in Parliament, and which are not.

21. My own preference is to consider using the term Lord of Parliament, and to permit Members to use the suffix “LP”. Lords of Parliament (as opposed to Lords who are not “of Parliament”) is already used as a term under the Standing Orders of the House. LP is consistent with the existing usage of the suffix MP, and being part-way between MP (legislator, accountable to the people) and JP (volunteer acting in the interests of justice, appointed on merit)—marginally closer to the former than the latter—seems about right. This would not, of course, prevent Members using their own titles or referring to each other as “My Lord”, if they wished!

24 June 2013

1 Labour Party, New Labour Because Britain Deserves Better (1997). Emphasis added.

2 NB: originally, membership of the House of Lords was neither hereditary, nor even for life (it depended on the needs and desires of the monarch). More recently, for 11 years from 1876 judicial members were appointed to the Lords for their term of office only.

3 The retirement age of members of the judiciary was standardised at 70 by the Judicial Pensions and Retirement Act 1993, although certain categories of judicial office-holder can sit up to the age of 75 if the Minister approves.

4 The Judicial Pensions Act 1959 set a retirement age of 75 for judges.

Prepared 16th October 2013