1 Introduction
1. On 17 May 2011, the Government published the House
of Lords Reform Draft Bill White Paper[1]
which included the text of a draft Bill to reform the House of
Lords. In June the provisions of the draft Bill were debated in
both Houses and remitted to a Joint Committee for pre-legislative
scrutiny.[2] The Committee
began its work on 11 July 2011.
2. The draft Bill's principal provisions are as follows:
- To provide for a reformed House
of 300 members: 80 per cent (240) to be elected and 20 per cent
(60) to be nominated (or, alternatively, for a 100 per cent elected
House).
- Election would be by single transferable vote
for large multi-member constituencies.
- Appointments would be made by a statutory Appointments
Commission, which for certain purposes would be overseen by a
Statutory Joint Committee.
- Members would serve single non-renewable terms
of 15 years and the membership would be elected/appointed one
third at a time at each General Election.
- 12 bishops would continue to sit ex officio;
and the Prime Minister would appoint persons as members to serve
as ministers, for the duration of their ministerial appointment
only.
- Transitional arrangements would reduce the existing
membership by one third in 2015, 2020 and 2025 as one third of
the new membership arrives at each General Election. (Two alternative
transitional arrangements are set out in the White Paper but not
in the draft Bill.)
- By-elections for the current 90 hereditary peers
would cease in 2015, although existing excepted hereditary peers
could be selected to remain under transitional arrangements.
- Members would be full-time; their salaries and
allowances would be set by IPSA (the Independent Parliamentary
Standards Authority).
- Provision is made for expulsion or suspension
for misconduct; voluntary resignation; and disqualification.
3. The history of reform is a long one and summaries
of the principal milestones since the passing of the Parliament
Act in 1911 may be found in the First Report of the Joint Committee
on House of Lords Reform 2002-03 and in House of Lords Library
Notes.[3] Following the
passing of the House of Lords Act in 1999, which removed the right
of all but 92 hereditary peers to sit in the House of Lords, the
then Government pursued a number of initiatives to further the
debate on reform. In 1998 the Government published a White Paper
(Modernising Parliament Reforming the House of Lords).[4]
They received the report of the Royal Commission on the Reform
of the House of Lords, chaired by Lord Wakeham, in early 2000.[5]
There followed two further White Papers in 2001 (Completing
the Reform)[6] and
2007 (The House of Lords: Reform),[7]
the consultation paper of 2003 (Constitutional Reform: next
steps for the House of Lords),[8]
and the White Paper in 2008 (An Elected Second Chamber: Further
reform of the House of Lords).[9]
4. Backbench and cross party groups in both Houses
also produced ideas for reform—the Constitutional Commission
on options for a new Second Chamber chaired by Lord Mackay
of Clashfern in 1999;[10]
a working group of Labour Peers, chaired by Lord Hunt of Kings
Heath in 2004 (Reform of the Powers, Procedures and Conventions
of the House of Lords);[11]
and a cross party group of MPs (Ken Clarke, Robin Cook, Paul Tyler,
Tony Wright and Sir George Young) in 2005 (Reforming the House
of Lords: Breaking the Deadlock).[12]
5. In addition both Houses voted in 2003 and 2007
on a series of resolutions relating to the composition of the
House of Lords. On both occasions the Lords voted for a fully
appointed House. On the first occasion in 2003 the Commons vote
was inconclusive. The Commons decided in favour of an 80 per cent
or 100 per cent elected House on the second occasion in 2007,
although 71 members of the House of Commons voted for both a fully
elected House and a fully appointed House.
6. Many of the key features of the present draft
Bill were either recommended or otherwise foreshadowed in one
or other of these publications. Thus, for example:
- The concept of a hybrid House,
part elected, part nominated, was proposed by the Royal Commission
in 2000 and in the 1998 White Paper. The 2001 White Paper proposed
20 per cent election. Breaking the Deadlock proposed a
70 per cent elected and 30 per cent nominated House, with election
in thirds on a STV system at each General Election (it recommended
STV over open lists). The 2007 White Paper again proposed a hybrid
House with election in thirds. The 2008 White Paper took this
further by proposing an 80 per cent elected and 20 per cent nominated
House, with election in thirds at each General Election.
- Proposals on size have varied. Breaking the
Deadlock suggested 385 members, and Lord Mackay's Commission
450 members, for a hybrid House. The 2008 White Paper proposed
a House smaller than the Commons without being more specific.
- Both the 2007 and 2008 White Papers proposed
that a reduced number of bishops should continue to sit. Breaking
the Deadlock saw strong arguments for ending the right of
bishops to sit but did not wish to upset current arrangements
so proposed a reduction to 16.
- The establishment of a statutory Appointments
Commission has been consistently recommended since the Royal Commission
recommended it, the exception being the 1998 White Paper which
proposed the current non-statutory arrangements.
- Election for non-renewable 12-to-15 year terms
was first recommended by Lord Mackay of Clashfern's group and
more latterly by Breaking the Deadlock and the 2008 White
Paper.
- The appointment of members to serve specifically
as ministers was mooted both in the 2003 government consultation
paper and in Breaking the Deadlock.
- The 1998 White Paper affirmed at some length
that the current House's functions and powers would be carried
over following any reform and this presumption prevailed in subsequent
papers and studies.
- A lengthy transition, with current members reducing
by thirds, was proposed by both Lord Mackay of Clashfern's Commission
and Breaking the Deadlock. The 2007 and 2008 White Papers
both foresaw a transitional period but of no specified duration.
7. It is readily apparent that many of the principal
elements of the current draft Bill have been proposed before,
and indeed this is acknowledged by the Government. Familiarity
does not necessarily render some of them any less controversial,
however.
8. At the heart of the controversy around the draft
Bill lies the effect of electing a reformed chamber on current
constitutional arrangements and, in particular, the balance of
power between the two Houses. At present the House of Lords has
a wide range of powers over legislation—it can initiate,
amend and reject bills. These powers do not extend to supply and
Money Bills, and are constrained in respect of other bills by
the provisions of the Parliament Acts which provide that a bill
may become law without the agreement of the Lords where the Lords
have rejected or failed to pass it in two successive sessions.
The House of Lords also has the capacity to reject delegated legislation.
9. Because the House of Lords is not elected, however,
these powers are used very sparingly indeed. If the House chose
to use its powers it would be one of the most powerful second
chambers in the world. The restraint it presently exercises, as
a consequence of its non-elected status, is expressed in the conventions
which govern relations between the two Houses (see section 5 below).
10. The issue therefore is how the practice of the
Lords will change once it is elected—whether a reformed
house will continue exercise restraint and whether the conventions
will survive in their current form. This question and the Government's
arguments in respect of Commons primacy—in particular as
they are expressed in the provisions of clause 2 of the draft
Bill which asserts that elections to the House of Lords will not
change the status, functions and powers of the House of Lords—have
therefore featured prominently in the Committee's deliberations.
11. Other approaches to reform are of course possible.
A number of our witnesses advocated an incremental approach, focusing
on issues on which there exists a large degree of consensus: the
mode of appointment, the size of the House, retirement, disqualification
and expulsion. Lord Steel of Aikwood's private member's Bill attempted
to address some of these issues. The Joint Committee was established
to consider the draft Bill, however, and we have kept within our
remit.
12. Nor does the report attempt to cost the Government's
proposals. The White Paper accompanying the draft Bill contains
no such costings. We asked the Minister to provide financial information,
but he twice declined to do so on the grounds that there were
"so many variables at the moment".[13]
We assume that this information will be made available on introduction
of the Bill.
13. Finally, some words of explanation. As set out
in Erskine May's Parliamentary Practice, a report from
a committee embodies the conclusions agreed to by the majority
of its members, and members who dissent from the report may not
make minority reports to be appended to it. If a member disagrees
to certain paragraphs in the report, or to the entire report,
they can record their dissent by dividing the committee against
those paragraphs, or against the entire report, as appropriate.
Members can also put on record their observations and conclusions,
as opposed to those of the majority, by proposing an alternative
draft report or moving amendments to the draft. Any alternative
draft or amendment on which a division takes place is recorded
in full in the minutes of proceedings of the committee.[14]
The Joint Committee's Formal Minutes of 19, 21 and 26 March 2012,
relating to the Committee's consideration of the Report, are attached
in Appendix 8.
1 Government White Paper, House of Lords Reform
Draft Bill, Cm 8077, May 2011 Back
2
HC Deb 27 June 2011 col 646, HL Deb 20 June 2011 col 1155 and
21 June col 1251 Back
3
HL Paper 17 Session 2002-03 Back
4
Government White Paper, Modernising Parliament Reforming the
House of Lords, Cm 4183, December 1998 Back
5
Royal Commission on the Reform of the House of Lords, A House
of the Future, Cm 4534, January 2000 Back
6
Government White Paper, The House of Lords: Completing the
Reform, Cm 5291, November 2001 Back
7
Government White Paper, The House of Lords: Reform, Cm
7027, February 2007 Back
8
Government consultation paper, Constitutional Reform: next
steps for the House of Lords, September 2003 Back
9
Government White Paper, An Elected Second Chamber: Further
reform of the House of Lords, Cm 7438, July 2008 Back
10
Constitutional Commission, The Report of the Constitutional
Commission on options for a new Second Chamber, 1999 Back
11
Labour Peers Group, Reform of the Powers, Procedures and Conventions
of the House of Lords, 2004 Back
12
Rt Hon Kenneth Clarke MP et al., Reforming the House of Lords:
Breaking the Deadlock, July 2007 Back
13
QQ 14, 67 Back
14
Erskine May, 24th edition, page 901 Back
|
