Political and Constitutional Reform CommitteeWritten evidence submitted by David Beamish, Clerk of the Parliaments

Introduction

1. I am pleased to have been invited to give evidence to the Committee, as several of the questions being considered in this inquiry are ones in relation to which I have been consulted by members of the House of Lords over the past few months.

2. When the House of Lords resumed after the summer recess in October 2012, several members raised with me the question what action the House might take in relation to its membership, in the light of the fact that the House of Lords Reform Bill had been dropped and Government legislation to reform the membership could no longer be expected until after 2015. The members’ principal concern was to limit the size of the House. Accordingly, I attended several meetings with interested members and prepared a paper for general circulation which described some options and noted some implications. The rest of this memorandum is an updated version of that paper.

Scope of this Memorandum

3. The primary focus of the memorandum is on measures which would not require legislation and therefore might be taken by the House itself. But certain of the changes which some members would welcome would require legislation, in some cases not dissimilar to provisions of the Constitutional Reform and Governance Bill (session 2009–10) which were removed before its enactment in the “wash-up” at the end of that session. Accordingly the relevant provisions of that Bill are set out, for ease of reference, in Appendix C to this memorandum. The provisions of the House of Lords (Cessation of Membership) Bill [HL], introduced by Lord Steel of Aikwood, sent to the Commons on 24 July 2012, and given a First Reading there on 4 December, and of the House of Lords Reform Bill [HL] introduced by Baroness Hayman on 15 May 2013, are noted below where relevant. The Committee may be aware that Dan Byles MP, who came 5th in this session’s ballot for private members’ bills announced earlier this month his intention “to bring forward a simple House of Lords Reform Bill which, if it becomes law, will remove Peers who are convicted of a serious criminal offence from the House of Lords and introduce a retirement mechanism to help limit the size of the Upper House”.1 His House of Lords Reform (No. 2) Bill was introduced on 19 June, and is due to have its Second Reading debate on 18 October, but at the time of writing had not been published.

4. The “size of the House” may be interpreted in two ways: it can refer simply to the number of members eligible to participate in proceedings, or it can refer to those members who do in practice attend sittings. Measures to remove from membership those members who play no significant part will reduce the size of the House in the first sense but will have no impact on crowding in the Chamber, pressure on facilities or costs. This memorandum discusses both measures to lower the membership total and measures to reduce attendances, with an emphasis on the latter.

5. Two possible types of measure are discussed: those which would prevent the participation of some members, and those which would discourage their participation. In general, there is little that the House can do, except by way of legislation, to exclude members (other than as a penal sanction), and so measures to discourage participation are likely to prove more fruitful in the short term.

6. This memorandum is concerned only with “lords temporal”, and not with the 26 archbishops and bishops in the House.

7. None of the proposals canvassed in this paper is intended to be an alternative to reform of the composition of the House of Lords. The paper takes as its starting point the fact that major reform is unlikely to happen for some years, and therefore both supporters and opponents of such reform may in the meantime wish to make changes that will improve the operation of the present House.

Background

8. The issue of the powers of the House in relation to the attendance of its members has been addressed several times in the past, and three reports are particularly relevant:

Report by the Select Committee on the Powers of the House in relation to the Attendance of its Members (“the 1956 report”).

Committee for Privileges, 1st Report (2008–09), on The Powers of the House of Lords in respect of its Members (“the 2009 report”).2

Report of the Leader’s Group on Members Leaving the House (“the 2011 report”).3

9. The first of these was the report which led to the introduction of the leave of absence scheme. It was prompted by concern over the potential impact of “backwoodsmen” who normally did not attend but might do so to vote down progressive legislation. The Committee concluded that the House had no power to exclude members (whether temporarily or permanently) and so the leave of absence scheme depended on a moral obligation on members on leave of absence to stay away or end their leave of absence (which until 2011 required one month’s notice; the period has now been increased to three months).

10. The second report (the 2009 report) focused on the power of the House to suspend members guilty of serious misconduct. It led to the suspension of two members (and subsequently another five) for breaches of the Code of Conduct. It differed from the 1956 report in concluding that the House did have a power to suspend a member for misconduct within the span of a Parliament (that limitation being because an order of the House could not override a new writ of summons issued at the start of a new Parliament).

11. The third report (the 2011 report), produced by a Leader’s Group chaired by Lord Hunt of Wirral, addressed the powers of the House with regard to attendance and “retirement”. It concluded that the House could not introduce a formal retirement scheme, but it did lead to the introduction of an informal retirement scheme in 2011. Three members have taken up that scheme, and are no longer included in membership lists produced by the House Administration; two of those had not attended for some years prior to retiring; the third, Lord Bramall, was active in the House until his retirement at the end of the 2012–12 session. Possible ways of extending that scheme are discussed below in paragraphs 21 to 28.

12. The 2011 report also recommended strengthening the leave of absence scheme, by having the Clerk of the Parliaments write at the start of each session to members who had attended rarely in the previous session inviting them to apply for leave of absence. Members who did not reply within three months would be granted leave of absence. That recommendation was approved by the House and took effect at the start of the 2012–13 session in May 2012. It led to 16 peers agreeing to take leave of absence and a further four being granted leave of absence after failing to reply within three months. As a result, the number of peers on leave of absence is now 42, much higher than in recent years. Possible further strengthening of the leave of absence scheme is discussed in paragraphs 38 to 40 below.

Exclusion of Members

13. It has been suggested to me that the power to suspend members, exercised seven times since the 2009 report, could be used to exclude members who fail to attend. Historically, there are many precedents for the House seeking to punish members for failure to attend, but (perhaps unsurprisingly) there has never been any suggestion that compulsory exclusion was a suitable punishment. For reasons set out in Appendix A, it is clear that the reasoning of the 2009 report does not support suspension as a sanction for non-attendance; such a measure would require legislation. Clause 2 of the House of Lords (Cessation of Membership) Bill [HL] of 2012–13 and of the House of Lords Reform Bill [HL] provides one model (permanently excluding a peer who does not attend during a session, subject to certain exceptions).

Exclusion of Members with Criminal Convictions

14. Several members have suggested that the House might take action in relation to members who have served prison sentences above a threshold. They include the Leader of the House, Lord Hill of Oareford, who, in a debate on the size of the House on 28 February 2013, said:

“I have strong sympathy with those who are uncomfortable about Members convicted of a serious prisonable offence returning to the House. Pending primary legislation to exclude Members on those grounds, I would certainly support steps to explore measures that we ourselves might take to discourage Members in that category from taking part in the work of our House.”4

15. In 2011 two members who were sentenced to imprisonment were then suspended for periods equivalent to their prison sentences, but those suspensions were within the current Parliament: as noted in paragraphs 10 and 11 above, permanent exclusion, or exclusion beyond the end of a Parliament, would not be possible. Moreover, both the offences concerned related to obtaining money from the House; the House has not, at least in recent times, sought to take action of its own in relation to members convicted of offences unrelated to their membership.

16. Any permanent exclusion of members sentenced to imprisonment would require legislation. In the 2009–10 session, the Constitutional Reform and Governance Bill, as it reached the House of Lords, contained provisions to that effect. The text of the relevant provisions is set out in Appendix C. The following points may be noted:

(1)The provisions were not retrospective—they applied to convictions after the coming into force of the relevant provisions of the Act.5

(2)The threshold was a sentence of imprisonment “indefinitely or for more than one year”, passed by a United Kingdom or overseas court.

(3)The Bill also contained provisions allowing the House to expel (or suspend) a member where “the House is in disrepute because of conduct of the person”—that might have permitted expulsion in a case of imprisonment for a shorter period than that mentioned in point (2) above, but not in relation to conduct before the Act came into force.

(4)It has been pointed out to me that point (3) above would provide a possible means of excluding members who had been sentenced to imprisonment in the past, if the House were to conclude that their subsequent participation in the proceedings of the House had brought the House into disrepute.

(5)A similar provision in relation to members sentenced to imprisonment (but without any equivalent of point (3) above) was contained in clause 3 of Lord Steel of Aikwood’s House of Lords (Cessation of Membership) Bill [HL] in 2012–13 and is in clause 3 of Baroness Hayman’s House of Lords Reform Bill [HL]. As indicated in paragraph 3 above, Mr Byles’s House of Lords Reform (No. 2) Bill is expected to include provisions to “remove Peers who are convicted of a serious criminal offence from the House of Lords”.

Changing the Terms of Newly Created Life Peerages

17. It has also been suggested to me that future creations of life peerages should limit the period for which the peerage entitles the new life peer to sit in the House of Lords, by reference to length of service, an age limit, or some combination. The historical precedents make clear that this would need legislation: the introduction of life peerages (first for judges in 1876 and then for others in 1958) was the subject of legislation.

18. Although a compulsory scheme would require legislation, it would nevertheless be possible to introduce a non-statutory scheme. While the impact would not be directly felt for a while, it could help to give momentum to other measures.

19. Essentially, an arrangement could be introduced whereby nominees were invited to give an assurance that (assuming that there had been no substantial reform of the House in the meantime) they would retire after a certain number of years (say 15), or at a certain age (say 756), or whichever came first (or second!).

20. As regards Crossbenchers, such an arrangement could be introduced by the House of Lords Appointments Commission. There is a parallel with the stipulation which the Appointments Commission introduced some years ago (now overtaken by the Constitutional Reform and Governance Act 2010) requiring nominees to undertake to be UK residents for tax purposes. As regards other nominees, an announcement of such an arrangement by the Prime Minister would suffice.

Steps Short of Exclusion of Members

Voluntary Retirement

21. The 2011 report, by the Leader’s Group on Members Leaving the House, led to the adoption, in 2011, of a “voluntary retirement” scheme. This scheme allows members to write to the Clerk of the Parliaments indicating their wish permanently to retire from the service of the House. To date only three members have taken advantage of the scheme, and two of those had been non-attenders for some years. There are at present 132 members of the House (excluding those already on leave of absence) aged 80 or over, and 236 aged 75 or over.

22. The fundamental weakness of the “voluntary retirement” scheme is the lack of an incentive. Members are entitled to claim £300 in respect of any day on which they attend the House; there are also other benefits attaching to membership, such as the provision of IT equipment, access to facilities and papers, and so on. In the absence of any offsetting incentives, retirement is unlikely to be an attractive option for many members.

23. The 2011 report suggested that the possibility of a “modest pension, or payment on retirement” (which it described as a “resettlement payment”) should be investigated. The Leader’s Group argued that this financial provision would be compatible with “an overall saving to the taxpayer”.7 In the long term, that is undoubtedly the case, provided that those retiring are not replaced by new appointees, as the compensation would relate only to the daily allowance, whereas the savings would extend to travel costs which would no longer be incurred, and to the provision of accommodation and facilities. The following paragraphs discuss some of the practicalities, but I should note that since I first examined this matter the Leader of the House, Lord Hill of Oareford, has indicated in the Chamber that the Government and other parties do not support the idea: “I should make clear, as I have done before, that the Government do not support making taxpayers’ money available to Members of the House to encourage them to retire. That would be wrong, and it would be seen to be wrong. I am glad to hear that my view on this is shared by all groups and all parties.”8

Payments to Retiring Members

24. Possible elements of a non-statutory scheme for making resettlement payments on retirement might be as follows:

(1)The amount payable to a retiring member would be related to the number of attendances by that member in (say) a period of a year prior to the start of the scheme.

(2)The payment might be £300 per attendance, ie a year’s worth of allowances. If a higher amount were thought desirable to attract more participants, it would be desirable to make further regular (perhaps annual) payments subsequently, for an agreed period, rather than one large payment.

(3)The scheme might (but need not) be confined to members who had reached a certain age (75 or 80) or served at least 15 years in the House.

(4)An initial scheme could be capped by time and/or cost: members could be given until a certain date to decide whether to retire, and/or the scheme could be closed when the take-up reached a limit, expressed either as a number of members or as a budget for the retirement payments.

(5)For members taking a party whip, the impact of retirement on their party’s voting strength might be a concern. Informal arrangements might be made for those members who so wished to apply through their party whip, so that the whips could satisfy themselves that the distribution of retirements among the parties was acceptable before putting forward their members’ applications.

25. There would be quite a few practicalities to be ironed out,9 and as a first step a working group of members might be appointed to make detailed recommendations on the operation of a scheme.

26. While the House would have no power to prevent retiring members from changing their minds and attending sittings and voting in divisions, and they would continue to receive a writ of summons in each new Parliament, it would be straightforward to provide that members who had received a payment could not claim allowances or expenses, or other benefits such as IT support and the ability to book meeting rooms, thereafter. (On the other hand they could be offered the same “club rights” as the hereditary peers who left the House in 1999, and that might be helpful in encouraging members to participate in the scheme.)

27. Alternatively, the risk of retiring members changing their minds could be averted by means of a statutory scheme along the lines contained in clause 1 of Lord Steel of Aikwood’s House of Lords (Cessation of Membership) Bill [HL], clause 1 of Baroness Hayman’s House of Lords Reform Bill, and clause 56 of the Constitutional Reform and Governance Bill of session 2009–10 (see Appendix C). A scheme for making a transitional payment could sit alongside such a scheme.

Financial Impact of Payments to Retiring Members

28. Paragraphs 44 to 47 of the 2011 report discussed the financial impact of making compensation payments to retiring members, and proposed that any such payments “should come from within the existing budget for the House and should incur no additional public expenditure”. The Finance Director has provided an indication of the cost of, and likely savings from, a scheme offered to members who have served for 15 years and are above a threshold age (75 or 80), on the assumptions that the payment in each case would be the amount of attendance allowance claimed in the 2011–12 financial year and that take-up would be 50% of those eligible. The analysis is in Appendix D. It is clear that such a scheme could pay for itself quickly (whatever the level of take-up).

Withholding Financial Support from Certain Members

29. As an alternative to making payments to retiring members, the House could give members a financial inducement to absent themselves by withholding some financial (or other) support from those who have (say) reached a certain age, or served for a certain number of years, or attended fewer than a certain proportion of sittings, or some combination.

30. The simplest such arrangement would be to withhold the right to claim allowances and/or travel expenses from members over a certain age, or who had served for more than a certain period.10 That approach would have the disadvantage—which I know for many members of the House of Lords will be a fatal one—that it affects those who live far from London, or are of limited means, far more than others. It would be a pity to make the House effectively open to older members only if they are well-off or live in south-east England.

31. On the other hand, gradual withdrawal of financial support would provide a way of showing that the House is serious about introducing retirement and, if arrangements were introduced for new members to agree to retire (paragraphs 18 to 20 above), would reduce the disparity between new and existing members. One suggestion which has been put to me is for an arrangement whereby in 2015 (from the start of the new Parliament) members over 85 with 15 years’ service would cease to be eligible for financial support, with the age limit reducing to 80 in 2020 and finally to 75 in 2025.

32. Another possibility would be to confine payments to regular attenders. When reimbursement of railway fares—the first scheme for reimbursement of Lords’ expenses—was introduced in 1947, it was subject to an assiduity test: claimants had to have attended one-third of sittings (or, for those living in Scotland, one-third of sittings at which Scottish business was taken). A similar arrangement might increase attendance by some members at around the chosen threshold but would certainly discourage rare attenders.

33. Another possibility, almost the opposite of the arrangement described in the previous paragraph, would be to have a variable allowance somewhat like mileage allowances which are lower above a certain threshold. Members attending more than a certain percentage of sittings might receive a lower allowance for sittings above that threshold; or there could be several steps and tapering allowances. The simplest version, within the present framework, might be to say that members attending more than (say) 75% of sittings can claim only the reduced daily allowance (£150) for sittings above that threshold. This would be very different from other measures discussed in this note, affecting only members attending frequently. But it might have a more significant impact on crowding in the Chamber, and perhaps the number of interventions made, by encouraging members to attend sittings more selectively.

34. Another possible incentive to retirement would be to review the rules governing access to facilities for retired members. At present retired members enjoy the same rights as those on leave of absence, with the exception that they are not entitled to receive parliamentary papers.11 These rights include the right to sit on the steps of the throne, to use the Library, dining room and other facilities, and to apply for tickets for themselves or their spouses to a range of events.12 If the House wishes to encourage more members to take voluntary retirement, one option, which could be adopted in parallel with the changes to the leave of absence scheme outlined above, might be to give more privileges to retired members than to those on leave of absence—making retirement the more attractive option. A danger, however, would be that it might encourage some rarely attending members to take up neither option!

35. It would also be possible simply to promote the existing “voluntary retirement” scheme more actively than has been the case hitherto. However, the low take-up, and recent adverse comment in the press,13 make it difficult to promote the scheme effectively at present—indeed, there is risk that the scheme as a whole may fall into disrepute. On the other hand, if a small number of high-profile members of the House could be persuaded either to retire or, depending on circumstances, to state their intention to retire at a certain point in the future (either when they reach a specific age, for instance 75, or upon completion of a defined period of service), then the scheme might be revitalised, becoming a credible alternative to the leave of absence scheme.

36. Such an arrangement might be facilitated by marking the service of retiring members.14 One approach (which would also avoid a trickle of retirements) would be for all retirements to take effect at the end of a Parliament, when those concerned could be thanked in the Chamber and perhaps at a social function as well. The knowledge that other members were to retire at the same time might make the scheme more acceptable to those considering retirement.

37. One problem with any voluntary retirement scheme is that the political parties may not wish to weaken their position in the House. It might therefore be important to ensure that all three parties reduced their numbers by a similar proportion. That could be achieved by agreement among the party leaders and whips on a target number of retirements. If the idea in the previous paragraph that retirements should take effect at the end of a Parliament were adopted, then it would be straightforward to compare notes and ensure that all parties had met the agreed target.

A Strengthened Leave of Absence Scheme

38. An alternative approach might be for the House to strengthen the terms of SO 22, making more forceful use of the leave of absence scheme to reduce numbers. The House could set a minimum level of attendance required of its members (whether expressed as a fixed number, or as a percentage of sitting days over the course of a session or calendar year). Such a rule would have to allow for exceptions, where members had a valid and time-limited reason (such as temporary ill health) for being unable to attend. It has also been suggested to me that there ought to be a mechanism (perhaps via a committee) for exempting especially distinguished members. That might be invidious but would certainly be workable, and is precedented: until the 1970s the Leave of Absence Committee had discretion not to grant leave of absence in all cases—the difference being that that Committee considered only non-attenders and not infrequent attenders.

39. The question then arises—what could the House do to those who failed to comply? For the reasons given in paragraph 13 above and Appendix A, I do not believe that a Member could be suspended in such circumstances. However, I believe that it would be within the House’s power to deem such Members to have applied for leave of absence. Such leave is, by definition, voluntary—enforced leave of absence, without the option of terminating it, would be tantamount to suspension, as well as being a contradiction in terms. It would therefore be essential that leave granted in such circumstances could be terminated in the normal way, by the Member giving three months’ notice of his or her intention to return to the House. This would allow Members to mend their ways, and return to the House, on the understanding that they would henceforth attend more regularly. On this basis, I believe a strengthened leave of absence scheme would be lawful.

40. Appendix B contains a possible redraft of SO 22.

Lord Steel of Aikwood’s Motion

41. On 28 February 2013 the House of Lords debated a motion moved by Lord Steel of Aikwood “That, notwithstanding the normal practice of the House, this House resolves that no introductions of new Peers shall take place until the recommendation in paragraph 67 of the First Report of the Leader’s Group on Members Leaving the House, chaired by Lord Hunt of Wirral (HL Paper 83, Session 2010–12), has been followed.”15

42. That recommendation was as follows: “Whilst we cannot recommend that there should be a moratorium on new appointments to the House—since, while the purpose of the House is to provide expertise, we must ensure that that expertise is refreshed and kept up to date—we do urge that restraint should be exercised by all concerned in the recommendation of new appointments to the House, until such time as debate over the size of membership is conclusively determined.”

43. Lord Hunt of Kings Heath (Deputy Leader of the House of Lords) moved an amendment as follows:

“to leave out from ‘that’ in line 1 to the end and insert “this House affirms the recommendation in paragraph 67 of the First Report of the Leader’s Group on Members Leaving the House, chaired by Lord Hunt of Wirral (HL Paper 83, Session 2010–12), that “restraint should be exercised by all concerned in the recommendation of new appointments to the House”; and calls on Her Majesty’s Government to support proposals, in line with legislation passed by this House, to:

(a)allow members of the House to retire permanently from the House;

(b)provide for the exclusion from the House of any member who does not attend the House during a Session save where that member has leave of absence in respect of the Session in accordance with Standing Orders of the House, or where a Session is less than six months long; and

(c)provide that a member who is convicted of a serious offence and sentenced to a term of imprisonment of more than one year shall not attend the sittings of the House.”

44. Lord Hunt of Kings Heath, and the Leader of the House (Lord Hill of Oareford) questioned (rightly in my view) the propriety of the House seeking to prevent newly created peers from taking their seats. On a division, Lord Hunt of Kings Heath’s amendment was carried by 217 to 45,16 and the amended motion was then agreed to without a division. So it is apparent that there is widespread support for restraint in relation to new peerage creations and for legislation in relation to retirement, and the exclusion of non-attenders and members sentenced to imprisonment for more than a year.

26 June 2013

APPENDIX A

SUSPENSION IN RESPECT OF NON-ATTENDANCE

In the course of preparing the 2009 report, the Committee for Privileges considered memoranda by the then Attorney General and Lord Mackay of Clashfern. The former argued that the House did not have the legal power to suspend its members; the latter that it did. But notwithstanding this divergence of opinion, they agreed, as did the Committee itself, that, in the words of Lord Mackay of Clashfern, “in the absence of such disqualifying provisions, in statute or in common law, the right of a peer to a writ of summons is unchallenged”.17

But while it is clear that the House has no power to remove the “fundamental constitutional right” conferred by the letters patent, it is now accepted that it has significant power to modify the way in which the “duty” embodied in the writ of summons is performed. The 2009 report, agreed by the House in May 2009, established that the writ is subject to certain “implied conditions”, embodied in rules agreed over time by the House (in Standing Orders, the Code of Conduct, the rules on financial support, and so on). Thus Lord Mackay concluded that suspension for a defined period, no longer than the remainder of the current Parliament, may be imposed “if a Member of the House were to be guilty of a clear and flagrant breach of the rules of the House, gravely transgressing the conditions implied in the writ of summons”. The question, therefore, is whether such a power could be used in respect of non-attendance.

The wording of Standing Order 22 is descriptive, not prescriptive: “Lords are to attend the sittings of the House or, if they cannot do so, obtain leave of absence”. The Standing Order does not specify a required level of attendance, nor does it spell out any disciplinary consequences following failure to attend. The reason is clear from the 1956 report, which led to the adoption of the Standing Order in more or less its present form. The House had for many years exercised a power to excuse Members from attendance, notwithstanding the “peremptory” wording of the writ; the Standing Order was intended to “regularise the existing state of affairs” rather than establishing a new rule. It then went a stage further, by indicating that Members who cannot attend sittings of the House should apply for leave of absence:

“The imposition of certain conditions and formalities upon such regularisation seems to the Committee to be no more than the legitimate and proper use of that power which, as all agree, the House has to organise and regulate its own proceedings.”18

But while confirming the existence of a duty upon Members who were unable to attend to apply for leave of absence, the Committee was very careful not to turn the duty into a mandatory requirement, thereby trespassing on the royal prerogative. Thus the Standing Order states in terms that it “shall not be understood as requiring a Lord who is unable to attend regularly to apply for leave of absence if he proposes to attend as often as he reasonably can.”

The 1956 Committee further considered whether non-attendance could be deemed to constitute contempt, and concluded that, as a general rule, it could not, though the Committee did find that a contempt could occur where a specific order of the House had been breached: “There are numerous cases which can be taken to establish that failure to obey an order of the House commanding attendance has been regarded as contempt ... but the Committee have been unable to discover any instance in which Peers have been punished for failure to attend unless they have previously been specially summoned by order of the House.”19 The Committee concluded: “Since 1841, no attempt has been made by the House to enforce the attendance of Peers, but there can be no doubt that such a power does still exist, and could be used by the House if it so wished.”20

However, this is a power to enforce attendance in specific circumstances, not to exclude those guilty of non-attendance. The 1956 Committee drew a clear distinction between an order to attend on a specific occasion, disobedience to which might be punishable as a contempt, and the general requirement to attend, which derives from the writ of summons rather than from any order of the House. Thus the Committee stated that if a sanction were to be imposed upon a Member simply for failure to apply for leave of absence, the effect would be “partially or completely to exclude him from the exercise of his rights.” The Committee therefore concluded: “the Committee cannot advise the House that it would be within its powers to attach penalties involving exclusion from the House to any new Standing Order on the subject of leave of absence.”21

Notwithstanding the changes agreed in 2009, I believe the conclusion of the 1956 Committee remains valid, for the following reasons:

Lord Mackay of Clashfern, in the opinion annexed to the 2009 report, argued that the power to suspend, in his view, could only be used against those who had “been found guilty of clear and flagrant misconduct.” It is not clear that failure to attend regularly can in itself be construed as “clear and flagrant misconduct”.

Lord Mackay sought to distinguish his findings in respect of misconduct from those of the 1956 Committee, noting that the 1956 Committee explicitly excluded cases of misconduct from its analysis. The 1956 Committee in fact acknowledged that “It may well be the case that the House, in law and by the custom of Parliament, has further powers”; Counsel to the Crown, in evidence to the Committee, went so far as to suggest that “If a peer has been guilty of misconduct ... it would be open to the House, as part of his sentence, to deprive him of the right of sitting and voting”. Thus the existence of a power to suspend in respect of misconduct does not necessarily imply the existence of a similar power in respect of non-attendance.

As has been noted above, the House has historically punished Members for non-attendance solely in order “to enforce attendance”. But this was a power exercised by a House that was too small, rather than one that was too large. It would seem perverse to suspend members for non-attendance, in effect punishing an offence of non-attendance with enforced non-attendance.

Punishing a member for non-attendance per se (as opposed to punishing them for disobeying a direct order of the House) would be ultra vires. The duty to attend is a duty imposed upon members by the Sovereign, by means of the writ of summons, not by the House.

I consider therefore that the House does not possess the power to suspend Members who, under current arrangements, fail to attend regularly, and that primary legislation would be required to confer such a power upon the House.

APPENDIX B

A DRAFT STANDING ORDER 22 FOR A STRENGTHENED LEAVE OF ABSENCE SCHEME

A draft of an amended SO 22, strengthening the leave of absence scheme, follows. The text in square brackets is indicative, and would be subject to further discussion. The current text is also given for comparison.

Proposed Re-draft of Standing Order 22

22—(1) Lords are to attend the sittings of the House, and any Lord who is unable to attend the House regularly should obtain leave of absence, which the House may grant at pleasure. A Lord may apply for leave of absence at any time during a Parliament for the remainder of that Parliament.

(2) At the start of each new session of Parliament, the Clerk of the Parliaments shall write to all Lords temporal who in the preceding session did not attend at least [25]% of those sittings of the House which they were eligible to attend, inviting them to give reasons for this non-attendance.

(3) No more than [one month] following the start of each new session, the [Leave of Absence Sub-Committee of the Procedure Committee] shall meet and consider any reasons submitted pursuant to paragraph (2). All Lords who in the preceding session did not attend at least [25]% of those sittings of the House which they were eligible to attend shall, unless the [Sub-Committee] otherwise direct, be deemed to have applied for leave of absence for the remainder of the Parliament, with immediate effect.

(4) Upon the dissolution of Parliament the Clerk of the Parliaments shall in writing ask every Lord who was on leave of absence at the end of that Parliament whether he wishes to apply for leave of absence for the new Parliament. Any Lord who has not by the date of the opening of the new Parliament given notice of his wish to attend the House regularly in the new Parliament, shall be deemed to have applied for leave of absence for the remainder of that Parliament, with effect from that date.

(5) A Lord who has been granted leave of absence should not attend the sittings of the House until the period for which the leave was granted has expired or been ended, unless it be to take the Oath of Allegiance.

(6) If a Lord, having been granted leave of absence, wishes to attend during the period for which the leave was granted, he should give notice to the House accordingly at least three months before the day on which he wishes to attend; and at the end of the period specified in the notice, or sooner if the House so direct, the leave shall end.

(7) For the purposes of this standing order Lords are deemed to be eligible to attend all sitting days including and following the date of their introduction, with the exception of those days on which they are on leave of absence, suspended, or disqualified from attending the House.

Current Text of Standing Order 22 (as amended on 30 June 2011)

22—(1) Lords are to attend the sittings of the House or, if they cannot do so, obtain leave of absence, which the House may grant at pleasure; but this Standing Order shall not be understood as requiring a Lord who is unable to attend regularly to apply for leave of absence if he proposes to attend as often as he reasonably can.

(2) A Lord may apply for leave of absence at any time during a Parliament for the remainder of that Parliament.

(3) On the issue of writs for the calling of a new Parliament the Clerk of the Parliaments shall in writing ask every Lord who was on leave of absence at the end of the preceding Parliament whether he wishes to apply for leave of absence for the new Parliament.

(4) At the start of each session of Parliament the Clerk of the Parliaments may in writing ask any Lord Temporal not on leave of absence, suspended or otherwise disqualified from attending the House, who in the previous session attended the House very infrequently, whether he wishes to apply for leave of absence for the remainder of the Parliament.

(5) Any Lord who fails to reply to a letter sent by the Clerk of the Parliaments pursuant to paragraph (3) or (4) above within three months from the date the letter was sent shall be granted leave of absence for the remainder of the Parliament.

(6) A Lord who has been granted leave of absence should not attend the sittings of the House until the period for which the leave was granted has expired or the leave has sooner ended, unless it be to take the Oath of Allegiance.

(7) If a Lord, having been granted leave of absence, wishes to attend during the period for which the leave was granted, he should give notice to the House accordingly at least three months before the day on which he wishes to attend; and at the end of the period specified in the notice, or sooner if the House so direct, the leave shall end.

(8) In applying the provisions of this Standing Order the Clerk of the Parliaments may seek the advice of the Leave of Absence Sub-Committee of the Procedure Committee.

APPENDIX C

PROVISIONS RELATING TO MEMBERSHIP OF THE HOUSE CONTAINED IN THE CONSTITUTIONAL REFORM AND GOVERNANCE BILL, SESSION 2009–10, AS IT REACHED THE HOUSE OF LORDS, BUT WHICH WERE REMOVED BEFORE ITS ENACTMENT

Part 5: The House of Lords

53: Ending of by-elections for hereditary peers

(1) For section 2(4) of the House of Lords Act 1999 (c. 34) substitute—

“(4) The limit in subsection (2) is reduced by one whenever a person who counts towards that limit dies.”

(2) Subsection (1) has no effect in relation to a death occurring before this section comes into force.

54: Removal of members of the House of Lords etc

(1) This section applies to a person (“P”) who is an excepted hereditary peer or a life peer if any of the following events (“relevant events”) occurs—

(a)a condition set out in Part 1 of Schedule 8 is met in relation to P,

(b)an expulsion resolution is passed in relation to P under section 55, or

(c)P resigns from the House of Lords under section 56.

(The conditions set out in Part 1 of Schedule 8 cover serious criminal offences and bankruptcy restrictions orders etc.)

(2) P shall not be a member of the House of Lords at any time after the relevant event occurs and, accordingly—

(a)P shall not be entitled to receive writs of summons to attend the House, and

(b)any writ of summons previously issued to P has no further effect.

(3) Part 2 of Schedule 8 supplements subsection (2).

(4) Part 3 of Schedule 8 provides for the effect of subsection (2) to be reversed in certain circumstances.

(5) In this Part—

“excepted hereditary peer” means a person excepted from section 1 of the House of Lords Act 1999 (c. 34) by virtue of section 2 of that Act;

“life peer” means a person who is entitled to receive writs of summons to attend the House of Lords by virtue of a peerage under the Life Peerages Act 1958 (c. 21) or the Appellate Jurisdiction Act 1876 (c. 59);

“peerage” includes the dignity conferred by virtue of appointment as a Lord of Appeal in Ordinary.

(6) In determining whether a person is entitled to receive writs of summons for the purposes of the definition of “life peer”, ignore—

(a)section 2 of the Forfeiture Act 1870 (c. 23);

(b)sections 426A and 427 of the Insolvency Act 1986 (c. 45);

(c)regulation 4 of the European Parliament (House of Lords Disqualification) Regulations 2008 (S.I. 2008/1647);

(d)any suspension resolution passed in relation to the person under section 55.

55: Expulsion and suspension of members of the House of Lords

(1) Standing Orders of the House of Lords may make provision under which the House may pass, in relation to a person who is an excepted hereditary peer or a life peer, an expulsion resolution or a suspension resolution.

(2) An expulsion resolution is a resolution which states that, in the House’s opinion—

(a)the House is in disrepute because of conduct of the person,

(b)that conduct warrants the loss of the person’s entitlement to receive writs of summons to attend the House, and

(c)accordingly, the person should lose that entitlement.

(3) A suspension resolution is a resolution which states that, in the House’s opinion—

(a)the House is in disrepute because of conduct of the person,

(b)that conduct warrants the suspension of the person’s entitlement to receive writs of summons to attend the House, and

(c)accordingly, the person’s entitlement should be suspended for the period specified in the resolution.

(4) A person in relation to whom a suspension resolution is passed shall not be a member of the House of Lords during the period of suspension specified in the resolution and, accordingly—

(a)during that period the person shall not be entitled to receive writs of summons to attend the House, and

(b)any writ of summons previously issued to the person has no effect in relation to that period.

(5)An expulsion resolution or a suspension resolution must specify—

(a)the date or dates on which, or

(b)the period or periods during which,

in the House’s opinion, the conduct occurred.

(6) A date specified under subsection (5) must not be earlier than the start date and a period specified under subsection (5) must not start before the start date.

(7) “The start date” means the date specified as such by Standing Orders which must not be earlier than the date on which this section comes into force.

(8) An expulsion resolution or a suspension resolution may contain other provision in addition to that mentioned in the subsections above.

56: Resignation from House of Lords

(1) A person who is an excepted hereditary peer or a life peer may at any time resign from the House of Lords.

(2) A peer resigns by giving notice of the peer’s resignation to the Clerk of the Parliaments.

(3) The notice must be in writing signed by the resigning peer and by two persons as witnesses.

(4) On receipt of the notice, the Clerk of the Parliaments must—

(a)sign a certificate of receipt, and

(b)send a copy of it to the resigning peer and to the Lord Chancellor.

(5) The resignation takes effect on signature of the certificate.

57: Disclaimer of peerage

(1) A person (“the former member”) to whom section 54 has applied may at any time disclaim the peerage by virtue of which the former member was entitled to receive writs of summons to attend the House of Lords (unless the effect of section 54(2) has been reversed under Part 3 of Schedule 8).

(2) The former member disclaims the peerage by giving notice of the disclaimer to the Lord Chancellor.

(3) The notice must be in writing signed by the former member and by two persons as witnesses.

(4) On receipt of the notice, the Lord Chancellor must—

(a)sign a certificate of receipt, and

(b)send a copy of it to the former member.

(5) The disclaimer takes effect on signature of the certificate.

(6) If the former member was an excepted hereditary peer, section 3(1), (3) and (4) of the Peerage Act 1963 (c. 48) applies in relation to the disclaimer as if the former member disclaimed the peerage under that Act by way of an instrument of disclaimer delivered on the day on which the disclaimer takes effect in accordance with subsection (5) above.

(7) If the former member was a life peer, the disclaimer—

(a)divests the former member (and any spouse or children) of all right to or interest in the peerage and all titles, rights, offices, privileges and precedence attaching to it, and

(b)relieves the former member of all obligations and disabilities arising from it.

(8) The Lord Chancellor must—

(a)keep a register containing the particulars of any disclaimer of a peerage under this section, and

(b)make arrangements under which the public may inspect the register.

58: Supplementary provision

(1) The proceedings of the House of Lords are not to be called into question because of the participation of a person who should not be participating.

(2) Nothing in this Part affects—

(a)a person’s membership of the House of Lords by virtue of being an archbishop or bishop, and

(b)accordingly, the person’s entitlement to receive writs of summons to attend the House by virtue of being an archbishop or bishop.

Schedule 8: Conditions for removal of members of the House of Lords etc

Part 1: Conditions for removal

Condition 1: serious criminal offence

1 (1) Condition 1 is met if a person—

(a)is convicted of an offence committed after section 54 comes into force,

(b)is sentenced or ordered to be imprisoned or detained for that offence indefinitely or for more than one year, and

(c)is imprisoned or detained in pursuance of that sentence or order or would have been were the person not unlawfully at large.

(2) This condition is met when the person is first imprisoned or detained after conviction in pursuance of the sentence or order or would have been were the person not unlawfully at large.

(3) The cases covered by this condition include cases in which—

(a)a person is convicted of an offence committed outside the United Kingdom;

(b)anything mentioned in sub-paragraph (1)(a) to (c) occurs outside the United Kingdom.

(4) An act punishable under the law of a country or territory outside the United Kingdom constitutes an offence for the purposes of this Schedule (however it is described in that law).

Condition 2: bankruptcy restrictions orders etc

2 Condition 2 is met if and when—

(a)a bankruptcy restrictions order or undertaking (but not an interim order) under any of the following comes into force in relation to a person—

(i)Schedule 4A to the Insolvency Act 1986 (c. 45);

(ii)section 56A or 56G of the Bankruptcy (Scotland) Act 1985 (c. 66);

(iii)Schedule 2A to the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)), or

(b)a debt relief restrictions order or undertaking (but not an interim order) under Schedule 4ZB to the 1986 Act comes into force in relation to a person.

Part 2: Supplementary provision for section 54(2)

Supplementary provision relating to excepted hereditary peers

3 (1) This paragraph applies if P is an excepted hereditary peer.

(2) P is no longer excepted from section 1 of the House of Lords Act 1999 (c. 34).

(3) If P counted towards the limit under section 2(2) of the 1999 Act, that limit is reduced by one.

Supplementary provision relating to life peers

4 (1) This paragraph applies if P is a life peer.

(2) P ceases to be disqualified by virtue of P’s peerage for—

(a)voting at elections to the House of Commons, or

(b)being, or being elected as, a member of that House.

Representation of the People Act 1985 (c. 50)

5 In relation to P, any reference in section 1(3) or (4)(b) of the Representation of the People Act 1985 to a register of parliamentary electors is to be read as including—

(a)any register of local government electors in Great Britain, and

(b)any register of local electors in Northern Ireland,

which was required to be published on any date before the relevant event occurs.

New peerages

6 (1) Sub-paragraph (2) applies if, after the relevant event occurs, a peerage under the Life Peerages Act 1958 (c. 21) is conferred on P.

(2) Section 54(2) does not stop P being entitled to receive writs of summons to attend the House of Lords by virtue of that peerage.

(3) Sub-paragraph (4) applies if, after the relevant event occurs, P becomes the person who is to hold the office of Earl Marshal or perform the office of Lord Great Chamberlain.

(4) Section 54(2) does not stop P being entitled to receive writs of summons to attend the House of Lords by virtue of the peerage that led to P becoming the person who is to hold or perform the office in question.

Part 3: Reversal of effect of section 54(2)

Claims for reversal

7 (1) If the relevant event is the meeting of condition 1, P may make a claim for the effect of section 54(2) to be reversed if—

(a)the conviction is overturned or quashed, or

(b)as a result of a determination that P should not have been sentenced or ordered to be imprisoned or detained for the offence indefinitely or for more than one year, the sentence or order is changed so that the requirements of paragraph 1(1)(b) are no longer met.

(2) If the relevant event is the meeting of condition 2, P may make a claim for the effect of section 54(2) to be reversed if (as the case may be)—

(a)the bankruptcy restrictions order or undertaking is annulled under—

(i)paragraph 9(3)(a) or 10 of Schedule 4A to the Insolvency Act 1986 (c. 45),

(ii)section 56E(3)(a), 56G(5)(a) or 56J of the Bankruptcy (Scotland) Act 1985 (c. 66), or

(iii)paragraph 9(3)(a) or 10 of Schedule 2A to the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)),

(b)the bankruptcy restrictions order or the debt relief restrictions order is annulled on an appeal against the making of the order,

(c)the debt relief restrictions order or undertaking is annulled by a direction under paragraph 10 of Schedule 4ZB to the 1986 Act, or

(d)the debt relief restrictions undertaking is annulled under paragraph 9(3)(a) of Schedule 4ZB to the 1986 Act.

(3) The claim is made by notice to the Lord Chancellor who must give notice of receipt to P.

(4) The Lord Chancellor must then—

(a)decide if the claim is justified,

(b)sign a certificate of the Lord Chancellor’s decision, and

(c)send a copy of the certificate to P and the Clerk of the Parliaments.

(5) If the Lord Chancellor decides that the claim is justified, the effect of section 54(2) (including Part 2 of this Schedule as relevant) is reversed from the day after the day on which the certificate is signed.

(6) P may not make a claim under this paragraph if P has disclaimed under section 57 the peerage by virtue of which P was entitled to receive writs of summons to attend the House of Lords.

8 In paragraph 4 of Schedule 7 to the Constitutional Reform Act 2005 (c. 4) after the entry relating to the Tribunals, Courts and Enforcement Act 2007 insert—

“Constitutional Reform and Governance Act 2010

Paragraph 7 of Schedule 8”.

Convictions outside the United Kingdom

9 (1) This paragraph applies if—

(a)the relevant event is the meeting of condition 1, and

(b)it is met by virtue of a sentence or order given or made outside the United Kingdom.

(2) The effect of section 54(2) (including Part 2 of this Schedule as relevant) is reversed if the House of Lords resolves that, for the purposes of this paragraph, P is to be treated as not having been the subject of the sentence or order.

(3) The reversal has effect from the day after the day on which the resolution is passed.

(4) A resolution may not be passed if P has disclaimed under section 57 the peerage by virtue of which P was entitled to receive writs of summons to attend the House of Lords.

APPENDIX D

NOTE BY THE HOUSE OF LORDS FINANCE DIRECTOR ON LIKELY SAVINGS FROM A POSSIBLE RETIREMENT SCHEME

I have been asked to estimate the likely savings of a putative retirement scheme for temporal peers, assuming a 50% take-up at each age. The scheme is assumed to be as follows:

Any peer who has reached the age of 75/80 or served 15 years in the House by 30 April 2013 may apply for a retirement grant.

This grant will be the same amount as the peer claimed in the 2011–12 financial year for the daily allowance claimed for attendance at the House.

Financial data are in the Annex. They could be derived from public sources, though not without difficulty. I have made the following assumptions:

1.Grants are paid in Year 0 and recipients retire at the end of that year. In reality, retirements might start mid-year, and might take place over a period.

2.The 50% take-up is evenly distributed in terms of claims in 2011–12. One might assume that take-up would be higher among rare attenders; one might equally assume it would be higher among those with more to gain; I have made neither assumption.

3.But for the scheme, claims by the members concerned would have continued at the same level as in 2011–12. In reality one would expect them to decrease overall, particularly for older members.

4.The only savings to be counted are daily allowances and travel expenses related to attendance. In reality there would be other savings and non-financial benefits.

5.Members who retire are not replaced.

Based on these data and assumptions, the likely costs and savings of such a scheme are estimated as follows:

£m

Year 0

Year 1

75+ scheme—take-up 202

Cost

4.7

Saving

5.2

 

80+ scheme—take-up 175

Cost

3.9

Saving

4.4

Following Finance Department consideration, I would add the following observations:

There is a conceptual difficulty in framing a retirement scheme for people who are not employees.

The offer of a retirement grant could be open-ended or time-limited. There could be an incentive to apply sooner rather than later.

58 members who will be aged 75+ on the relevant date, plus 34 who though younger will have served for 15+ years, claimed no daily allowance in 2011–12. These members are included in these calculations; but they would have no incentive to take part in the scheme, unless there were a minimum grant.

The impact of the scheme across the parties/groups would be unpredictable.

The tax aspect of the scheme would need further investigation.

If the grants were to be paid out of the House of Lords Vote, the ambit might need to be amended.

Andrew Makower

28 November 2012

Annex to Appendix D

On 30 April 2013

Members

Daily Allowance
2011–12 £

Attendance travel
expenses 2011–12 £

Age 75+

272

6,315,750

588,991

Age <75 but served 15+ yrs

132

3,157,050

386,895

TOTAL

404

9,472,800

975,886

50% of total

202

4,736,400

487,943

 

Age 80+

162

3,280,800

250,232

Age <75 but served 15+ yrs

132

3,157,050

386,895

Age 75–79 but served 15+ yrs

56

1,462,500

173,942

TOTAL

350

7,900,350

811,069

50% of total

175

3,950,175

405,535

1 http://www.danbyles.co.uk/conservatives/news/dan-byles-mp-will-use-private-members-bill-introduce-modest-and-simple-house-lords-reform-bill.

2 http://www.publications.parliament.uk/pa/ld200809/ldselect/ldprivi/87/8702.htm

3 http://www.publications.parliament.uk/pa/ld201011/ldselect/ldleader/83/8302.htm

4 HL Deb, 28 February 2013, column 1182.

5 On 28 March 2004 the Sunday Times carried a report (page 3) implying that the then Government had been considering, but had abandoned, retrospective legislation excluding peers sentenced to imprisonment: “The irrepressible Lord Archer of Weston-super-Mare has survived again. He will be able to keep his seat in the House of Lords indefinitely despite having a criminal conviction. Ministers have decided to shelve their plans to strip peers who have served jail terms of their titles. Lord Falconer, the constitutional affairs secretary, confirmed yesterday that the move had been abandoned along with other reforms to the upper house.”

6 Bearing in mind that in 1984 Harold Macmillan was made a peer at the age of 90, and in 2010 an 84-year-old was made a life peer, it may be that a higher age would be more acceptable initially!

7 2011 report, page 14.

8 HL Deb, 28 February 2013, column 1181. In the same debate the Convenor of the Crossbench Peers, Lord Laming, said (speaking in a personal capacity): “Any form of financial inducement to make such a [retirement] scheme more popular would, in my view, especially in the current circumstances, be inappropriate.” (column 1171).

9 One technical point is worth mentioning here: as Accounting Officer, I would need to be satisfied that payments were within the ambit of the House of Lords vote. But it is perhaps more important that HM Treasury approval would in practice be needed (even though any scheme could be expected to be financed by the House from its existing budget); the likely savings to public funds should make any reasonable scheme attractive to HM Treasury.

10 I should point out that some members have served for two distinct terms: archbishops and bishops given life peerages, and hereditary peers who left the House in 1999 and were subsequently made life peers. There are currently three of the former (plus one who has retired and one on leave of absence) and six of the latter (excluding two on leave of absence). A decision would be needed as to how to reckon their length of service.

11 Procedure Committee, 5th Report, 2010–12.

12 Companion, p. 21.

13 See The Daily Express, Ageing peers demand redundancy pay-offs for “voluntary retirement”, 14 October 2012, http://www.express.co.uk/posts/view/351892/Ageing-peers-demand-redundancy-pay-offs-for-voluntary-retirement-.

14 The voluntary retirement scheme in the 2011 report envisaged that retirement would be marked informally outside the Chamber. As the first two members who retired had not attended for some years, that did not happen. The retirement of Lord Bramall at the end of the 2012–13 session was marked by a small informal party held by the Lord Speaker.

15 HL Deb, 28 February 2013, columns 1165–85

16 Lord Steel of Aikwood himself accepted the amendment and voted in support of it.

17 2009 report, p. 10.

18 1956 report, p. xii.

19 1956 report, p. ix. The Committee noted that in 1820, during proceedings on Queen Caroline’s Degradation Bill, the House ordered that Peers be fined up to £100 for each day’s absence.

20 1956 report, p. viii.

21 1956 report, p. xiii.

Prepared 16th October 2013