Draft House of Lords Reform Bill - Joint Committee on the Draft House of Lords Reform Bill

Draft House of Lords Reform Bill - Joint Committee on the Draft House of Lords Reform Bill Contents

5 Transition, Salaries, IPSA, Disqualification, etc

18. Transition

Relevant sections of the draft Bill: Clause 36 and Schedule 6

THE GOVERNMENT'S PROPOSALS

295. The Government considers a period of transition to be important so that the culture of the present House of Lords may be transferred to the reformed house.[385] Having current members working alongside new members would "help the reformed House of Lords work effectively during this period".[386]

296. The Government have proposed that one third of the membership of the reformed House of Lords be chosen at each of the three next general elections. This would result in the following composition of the House for the three electoral periods (assuming that the House is 80 per cent elected):

In the first transitional period (after the first election) the House of Lords would comprise a) 80 elected members, b) 20 appointed members, c) up to 21 Bishops, d) any ministerial members, and e) any transitional members.
In the second transitional period (after the second election) the House of Lords would comprise a) 160 elected members, b) 40 appointed members, c) up to 16 Bishops, d) any ministerial members, and e) any transitional members.
After the third election¸ and subsequently, the House of Lords would comprise a) 240 elected members, b) 60 appointed members, c) up to 12 Bishops, and d) any ministerial members.

297. While the Government's preferred option is the one for which provision is made in the draft Bill, two other options are described in the White Paper and we are told that "the Government remains open to views on the exact process of transition".[387] The Government have set out three possible options for determining the number of transitional members.

298. Option 1 is set out in the draft Bill. It would reduce the number of current members in parallel with the introduction of new elected and appointed members. In the first transitional period the maximum number of transitional members would be two thirds of the membership of the House as at the date the Bill was introduced in the House of Commons. In the second transitional period the maximum number of transitional members would be one third of the membership of the House as of the date the Bill was introduced in the House of Commons—i.e. half of the transitional members of the first transitional period. Only peers who were transitional members in the first transitional period would be able to be selected as transitional members in the second transitional period. After the third election¸ and subsequently, there would be no transitional members.

299. Option 2 would allow all the current membership of the House of Lords to continue until the third election. This would result a very large House, of nearly 1000 members in the second transition period. In addition, the current membership of the House would have a majority until the third election, at which point which they would all leave at once. The Government note that this option would ensure that the knowledge of existing members would be retained as new members joined (though the same could be said too of Option 1 and to a lesser extent Option 3).

300. Option 3 would see the House of Lords reduced to 300 members immediately, in the first transition period. The Government state that "this would mean that the advantages of a smaller House could be realised immediately and would make clear that the House of Lords had been reformed". In the first transition period 200 members from the current House would remain, joined by 100 new elected and appointed members. In the second transition period, only 100 members of the current House would remain, alongside 200 new elected and appointed members. As with the other options, all members of the current House would leave at the third election.

301. The Bill leaves the means of choosing transitional members under all these options to the House of Lords which can put conditions on which members can be selected as transitional members, and choose whether transitional members should be selected by election or by another means (such as selection by party groups). Transitional members would have to be selected before the House of Lords was dissolved in the run-up to each election. If an individual chosen as a transitional member was subsequently either elected or appointed to the reformed House instead, they cease being a transitional member. No other person would take their place. The Clerk of the Parliaments would have the final say where there was any question as to the maximum number of transitional members allowed under these provisions, and the validity of the selection of a transitional member

302. Of those witnesses who commented on the proposals for transition most accepted that such a gradual transition was desirable for the reasons advanced in the White Paper. A period of transition would be "welcome and beneficial for the elected members"[388] and it was "necessary to ensure the upper house's operational continuity".[389] Some thought that having different classes of membership during transition—with elected members claiming greater legitimacy than others—was undesirable.[390]

303. There were sceptics who questioned the need for transitional arrangements at all. In the view of Democratic Audit, "... transitional arrangements are probably more significant as a sweetener intended to secure compliance for reform from existing members, and their exact nature is more of a political judgement than one of constitutional and democratic principle".[391] Other witnesses also questioned the logic of having a transitional period, "other than to reduce dissatisfaction among members of the existing House." If the system needed replacing, "it should arguably be replaced as one".[392]

304. So far as concerned the choice of transitional Option, views varied. Option 1, as in the draft Bill, was preferred by several respondents as it "balance[ed] the smooth running of the House with a wealth of continued experience". [393]

305. Option 2, which allows all eligible current members of the House of Lords to remain in the reformed House until the dissolution of parliament immediately prior to the third election, had little support. A number of submissions objected that this would result in a very large number of members. Unlock Democracy described this as "impracticable" and claimed "This model would lead to the second chamber growing even larger in size, guarantee that the unelected members continue to outnumber the elected members for more than a decade and ensure that the costs of the second chamber would rise exponentially before coming down again, to no identifiable purpose."[394]

306. The Electoral Reform Society pointed out that while "a critical mass of elected peers will be necessary to establish the chamber's new working practices" it saw "no merit in allowing all current peers to remain for a full electoral cycle".[395] David Beamish, Clerk of the Parliaments, said "I very much hope that the Committee will not be tempted by Option 2, under which all the present Members would stay until the third round of elections to the House. The practical problems of accommodating and supporting a House with such a large number of Members during the transition period should not be underestimated".[396] Option 2 had some support. The Campaign for a Democratic Upper House proposed a modified version of Option 2, whereby all hereditary peers would leave when elected members joined, but existing life peers would be allowed to stay. In its view, "The temporary large size of the House which would result for a period should not be seen as a barrier to reform".[397] Graham Allen MP thought that retaining all current members would ease transition.[398]

307. Opinions were divided over Option 3, which would see all but 200 existing peers leave the House of Lords at the time of the first election. While some saw such an arrangement as a way to prevent "delays and wrangling at each stage", others saw it as "a rather brutal cut" and politically less attractive.

308. The Archbishop of Canterbury drew the Committee's attention to one—possibly unintended—consequence of the transitional arrangements as they affected the bishops. This is considered at section 17 above.

OPINION OF THE COMMITTEE ON OPTIONS 1 TO 3

309. It is useful to set out the likely size of the House under the various options during the ten year transitional period.[399]

Reformed House of 300 membersOption 1

2015 2020 2025

Elected/Appointed 100 200 300

Transitional 535 268 0

Total 635 468 300

Option 2

2015 2020 2025

Elected/Appointed 100 200 300

Transitional 803 701 0

Total 903 901 300

Option 3

2015 2020 2025

Elected/Appointed 100 200 300

Transitional 200 100 0

Total 300 300 300

Reformed House of 450 membersOption 1

2015 2020 2025

Elected/Appointed 150 300 450

Transitional 535 268 0

Total 685 568 450

Option 2

2015 2020 2025

Elected/Appointed 150 300 450

Transitional 803 701 0

Total 953 1001 450

Option 3

2015 2020 2025

Elected/Appointed 150 300 450

Transitional 300 150 0

Total 450 450 450

310. The Committee consider that a gradual transition is desirable to enable the second chamber to continue to perform its functions, and so as to facilitate the retention of the conventions and procedures of the present House by the reformed house. The Committee also thinks that the transition option chosen should give fair treatment to current members.

311. Option 2 is not feasible. The Committee agrees with the Clerk of the Parliaments and other witnesses who consider the likely size of the transitional house under option 2 to be too big.

312. Option 3, while perfectly feasible, is likely to be seen as unfair to present members and is for that reason politically less acceptable than Option 1. Of the options set out in the White Paper, the Committee therefore considers Option 1 the best of those canvassed.

313. The Committee agrees that the House of Lords should itself, through the medium of the political parties and the crossbench peers, be responsible for establishing the selection of transitional members.

OPINION OF THE COMMITTEE: A FOURTH OPTION

314. The Committee has given some thought to the feasibility of making a bigger cut in transitional membership in 2015 than is proposed by option 1. This idea arose out of the evidence given by Rt Hon Baroness Hayman, former Lord Speaker—in the rather different context of reducing the current appointed House to a smaller appointed house of some 600 members over 5 to 10 years. In subsequent exchanges it was acknowledged that a significant one-off reduction would be possible.[400]

315. If this idea is applied to the provisions in the draft Bill relating to the transitional members it should be possible to make a one-off reduction in 2015, with no further reduction in transitional numbers except by death or resignation/retirement until 2025. The size of the one-off reduction would be equivalent to the number of members who currently attend fewer than one in three sitting days. This would result in a transitional element who would then be apportioned to the political parties and crossbench peers pro rata their current numerical strength. While it would be for the political parties and crossbench peers to determine the criteria for selecting the transitional members, under this scheme there would be a strong case for using a member's attendance record as a criterion for selection.

316. A scheme on these lines provides greater continuity till 2025 and could preserve the position of those current members of the House of Lords who are regular attenders for longer. It would give the following outcomes, assuming a reformed house of 450 and annual attrition of 2.67 per cent.Possible outcomes for a reformed House of Lords

2015 2020 2025

Elected/Appointed 150 300 450

Transition 449 392 0

Total 599 692 450

Note: the initial transition element of 449 members is derived from the benchmark figure of the number of members who attended 66 per cent or more of sitting days in the financial year 2011-12 as at 26 March 2012. The attrition rate of 2.67 per cent is a Government estimate—see Mark Harper MP supplementary written evidence (3).

317. Accordingly, the Committee recommends an alternative fourth option with three characteristics:

a) a transitional membership in 2015 equal to a benchmark figure derived from the total number of members attending 66 per cent or more of sitting days in the financial year 2011-12. These transitional members will remain in place until the final tranche of elected members arrive in 2025, at which point they will all leave;

b) an allocation of the transitional seats to parties and crossbench peers in proportion to their current membership; and

c) parties and crossbench peers to determine for themselves the persons to serve as transitional members.

318. The Committee further recommends that, if this option finds favour, parties and crossbench peers should have regard in particular to a member's attendance record over a designated period for determining who should remain as a transitional member.

319. The Committee strongly suggests that, as in 1999, the authorities of the current House of Lords may wish to consider the extension of certain club and access rights to those members who are not selected as transitional members.

19 Salaries, etc

Relevant sections of the draft Bill: Clause 59 and Schedule 7

320. Currently, members of the House of Lords (other than Ministers and office-holders) are not paid a salary. They may claim a daily allowance of £300 (or £150 for a half-day) for each qualifying day of attendance at Westminster and are also able to recover travel expenses incurred in connection with their Parliamentary duties.

321. The Bill envisages that those joining the reformed House, whether appointed or elected, would be salaried, since members "would be full-time Parliamentarians".[401] The Independent Parliamentary Standards Authority (IPSA) would set and administer their pay and allowances. The draft Bill also provides for salaries to be paid to transitional members.

322. The White Paper states:

"The Government considers that the level of salary for a member of the reformed House Lords should be lower than that of a member of the House of Commons but higher than those of members of the devolved legislatures and assemblies. This would recognise that they would have responsibilities or UK-wide legislation but would not have constituency duties. However, it will be for the IPSA to set the level of salaries".[402]

323. There are two main issues to be considered in relation to the Government's proposals:

is it correct to assume that all members should be full-time and paid a salary?
what would be an appropriate level of salary?

SHOULD PART-TIME APPOINTED MEMBERS RECEIVE A SALARY?

324. Elected members in a reformed House would receive a salary and pension and would be expected to devote most of their time to their parliamentary duties while the House is sitting. We have already recommended, however, that the presumption should be that appointed members would not have to commit to the same level of activity. If experts are to maintain their expertise, they need to remain engaged in their original activities. Similar arguments will apply to transitional members, those who are currently members of the House of Lords, many of whom have other interests. The Minister argued that although members of a reformed chamber would be expected to be full-time parliamentarians in sitting periods, they would be able to continue their previous work at times when the House was not sitting, but we are unconvinced by this argument.[403] He also argued that:

"In the same way as in the House of Commons we have a set salary for every Member, I think that you have to have a set salary for every Member of the House of Lords. Some will work incredibly hard and some will work less hard. That is just what we get used to in politics. I do not think that you can start differentiating salaries by how hard people work or how many hours they put in".[404]

325. Although Lord Jay of Ewelme thought it would be undesirable to treat appointed members differently from elected ones, including in salary level,[405] Dr Alan Renwick considered that it would be desirable to have a system which meant "that varying levels of attendance can be acknowledged." He noted "It is clearly unsatisfactory if members can arrive, sign in, and promptly leave again, thereby securing their daily allowance. But it is surely not impossible to design a system that works better than this".[406] We asked the Clerk of the Parliaments about the practicality of a House in which some members were part time and others not. He considered "we already have Members who devote different portions of their time to their membership. That seems to work".[407] The Chair and Chief Executive of IPSA were more cautious, since, as Sir Ian Kennedy said, "Per diem allowances might have a degree of bureaucratic underpinning that a salary will not have—not least the necessity to discover whether they are appropriately paid, what evidence is required for them and so on".[408] He told us that:

"What is relevant is the range of responsibilities and how you remunerate them. You can remunerate them by a salary that is fixed at 100 and you get 50% or 20% or you can remunerate them by using a per diem. It is not the difference between salary and per diem; it is really a question of, number one, the range of responsibilities and, number two, the mechanism for remuneration", also noting that "My default position as regards transitional arrangements is that ordinarily we would wish to treat every parliamentarian the same, given that they have similar responsibilities".[409]

326. There are problems with that approach. Elected members may have additional functions from appointed or transitional members. While their responsibilities may appear similar, they may well carry them out in a different way. Attempting to use a range of responsibilities by which to assess what proportion of salary should be paid comes dangerously close to a job description. That approach is unsatisfactory. First, each parliamentarian should have the freedom to determine how best to approach the job: that is a key function of their individual independence, and of Parliamentary sovereignty. Secondly, in a 15-year term, how would it be possible to tell in advance what responsibilities an individual Member might choose to take? It is far simpler to base remuneration on attendance for those who are not expected to attend regularly, whether they are appointed or transitional members. That will automatically link the amount of payment received with activity. There should be no difficulty in "the bureaucratic underpinning" for an allowance system, given that the House of Lords is currently able to link allowances with attendance.

327. We recommend that transitional Members should receive a per diem allowance rather than a salary. We further recommend that IPSA should consider whether appointed members may elect to receive a per diem allowance if it better reflects their level of participation in the work of the House. The Bill should leave it to IPSA to set the level of those allowances.

SALARY LEVEL

328. The majority of the written evidence agreed with the principle that members should be salaried but there were differing opinions about the level at which a salary should be set. The Campaign for a Democratic Upper House supported the suggestion in the draft Bill that members of a revised second chamber would receive a smaller salary than members of the Commons, not simply because they would not deal with individual constituency casework, but because of the subsidiary status of the second chamber.

329. The Electoral Reform Society in contrast suggested that members of a reformed Lords should receive an equal salary (and allowances) to those of the Commons. This was so that "people from all social backgrounds and all regions of the UK could serve in the chamber without facing financial hardship". [410]

330. Unlock Democracy also supported equal salaries, arguing that although members of the second chamber might not have the large constituency casework of MPs, they would have more specialist Committee work. The Chair of IPSA considered that salaries should be set in the light of job descriptions, and pointed out that MPs salaries were to be reviewed.

331. We agree that, as proposed in the draft Bill, IPSA should determine the level of salary and allowances. Membership will likely entail for many members the need to maintain a second home in London. We concur with the Electoral Reform Society that the salary and allowances should be set at such a level as to enable people from all social backgrounds and all parts of the United Kingdom to serve in the second chamber.

20. Disqualification

Relevant section of the draft Bill: Clauses 36-55

332. As the draft Bill now stands, the criteria for disqualification are similar for appointed and elected members, and both are broadly similar to the disqualification regime for Members of the House of Commons, set out in the House of Commons Disqualification Act 1975. Some disqualifications are contained on the face of the draft Bill; others are framed by reference to the House of Commons Disqualification Act 1975. We deal first with the disqualifications on the face of the Bill.

DISQUALIFICATIONS ON THE FACE OF THE BILL

Age

333. The first ground for disqualification is age: persons under 18 either on the day on which they are nominated as candidates, or on the day of their appointment are disqualified. Some of the evidence given to us favoured a higher age for disqualification; those concerned argued that the House of Lords should be place for reflection and experience. Dr Alan Renwick disagreed, on the grounds that, although "vanishingly few" 18-year-olds would be elected "I think it would send out the wrong signals at a time when it is very difficult to get young people engaged in politics to impose a higher limit".[411] The Minister agreed.[412]

Disqualification on grounds of conduct

334. Both elected and appointed members are disqualified if either they are the subject of an insolvency order, or the "serious offence condition" has been met. As the explanatory notes make clear, "a person is not disqualified merely because they are bankrupt: an insolvency order may only be made where there has been additional behaviour by the individual such as fraud, or a neglect of business affairs which may have increased the bankruptcy or failure to cooperate with the official receiver".[413]

335. The serious offence condition is specified in Clause 47: briefly, it is that the person concerned has been convicted of an offence, whether in the United Kingdom or elsewhere, and has been sentenced to be detained for more than one year. This is related to the Representation of the People Act 1981, which provides that the seat of a Member of the House of Commons imprisoned from more than one year is automatically vacated. The Archbishops of Canterbury and York thought that "a sentence of more than twelve months as the bar for disqualification" "seems too high in the interests of retaining public confidence and propriety".[414]

336. The Council of the Law Society of Scotland was concerned about Clause 50 of the draft Bill, which would allow the Lords to excuse someone from the serious offence provision:

"The electorate is entitled to expect that its legislators have not committed serious offences. It should not be at the discretion of the House to determine whether this ground of disqualification should be disregarded."[415]

The Explanatory Notes say "the clause would allow the House of Lords, for example, to disregard disqualification for offences which may not be punishable at all under UK law".[416] In drafting the Bill, the Government is faced with a dilemma: if only serious offences committed in the United Kingdom are included, then those punished for breaches of the law elsewhere will be able to remain in the House; if disqualification follows a custodial sentence in any jurisdiction, then there is a risk that members of the reformed House may be disqualified for behaviour that is not criminal in the United Kingdom. There are sound constitutional arguments for avoiding fettering the discretion of Parliament by statute law. On balance, we consider the provisions of the draft Bill which allow the reformed House to resolve to disregard some grounds for disqualification are appropriate. We expect this power is most likely to be used (if ever used) in cases where a member of the House has been convicted in another jurisdiction for behaviour which would not be criminal in the United Kingdom, or where the judicial process is open to serious criticism.

Disqualification by reference to House of Commons Disqualification Act 1975

337. The key provisions of the draft Bill relating to the House of Commons Disqualification Act 1975 are Clause 36 (1) (c) and (d) and 38 (1) (c), and (d).

338. Section 1 of the House of Commons Disqualification Act 1975 expressly disqualifies anyone who:

(a) holds any of the judicial offices specified in Part I of Schedule 1 to this Act;

(b) is employed in the civil service of the Crown, whether in an established capacity or not, and whether for the whole or part of his time;

(d) is a member of any police force maintained by a police authority;

(e) is a member of the legislature of any country or territory outside the Commonwealth (other than Ireland).

The draft Bill excludes holders of those offices (judges, civil servants, members of the armed forces, members of police forces and members of foreign legislatures) from membership of the reformed House of Lords as well. This prohibition is absolute, and would require primary legislation to alter.

339. The 1975 Act contains other disqualifying offices, which may be varied from time to time, and the disqualification regime for the reformed House of Lords operates by reference to these provisions. Section 1(f) of the House of Commons Disqualification Act prescribes that those who hold "any office described in Part II or Part III of Schedule 1" shall also be disqualified. As Erskine May says, Part II contains "executive and regulatory bodies in a wide range of areas, and certain quasi judicial and other statutory bodies whose members are appointed by the Crown".[417] Part III "contains a long list of residual offices which disqualify either on the grounds that their holders are appointed by the Crown or that their holding is incompatible with membership of the House of Commons".[418] Part IV of Schedule 1 sets out offices disqualifying particular constituencies: broadly speaking, Lord-Lieutenants or holders of equivalent functions cannot represent a constituency of their Lord-Lieutenancy. Schedule 1 of the Act can be amended relatively easily to allow the disqualification regime to adapt to changes in the machinery of government, and the creation or abolition of new public bodies.

Elected Members

340. The draft Bill provides that "for the time being" disqualifying offices for the Commons will also disqualify for the Lords, with the exception of membership of the House of Lords Appointments Commission (Clause 36 (3)). Clause 36(4) provides that "if the House of Lords resolves that Part 2 or 3" of Schedule 1 "is to be modified in its application to elected members by virtue of subsection (3), Her Majesty may by Order in Council modify the application of that Schedule accordingly" The provision mirrors section 5 of the 1975 Act, which allows the House of Commons to amend Schedule 1 of that Act. As the Explanatory Notes make clear, each House may accordingly have a different disqualification regime for elected members.[419]

Appointed Members

341. In regards to appointed members, Clause 38(4) makes a similar provision to Clause 36(4): "an office within subsection (2) is not a disqualifying office of an appointed member if it is listed in an Order in Council made by her Majesty under this subsection." Clause 64(2) specifies that such an Order in Council will be subject to annulment in pursuance of a resolution of either House of Parliament. The Explanatory Notes say:

"Subsection (3) provides that an office defined according to subsection (2) may be listed in an Order in Council made by Her Majesty so that it is not a disqualifying office. The list of disqualifying offices for appointed members would therefore be modified by reference to the list of disqualifying offices for elected members of the House of Lords. This would permit a less restrictive list of disqualifying offices to be drawn up for appointed members than for elected members, in order to bring specific experience or expertise to the House of Lords."[420]

The Minister reiterated this: "we think that it would be acceptable for there to be a different regime for appointed Members as opposed to elected Members, given that you are getting appointed Members in for their experience".[421]

342. We have already recommended that appointed members of the reformed House should be able to serve on a part-time basis and be paid a per diem allowance while retaining outside interests. There are good reasons for different disqualification regimes for elected and appointed members. Otherwise, the disqualification regime would permit those with significant private sector interests to serve, but exclude those with experience drawn from important public sector posts. Since elected members will be full-time, professional politicians they should be subject to the same disqualification regime as Members of the House of Commons. Part-time appointed members should be allowed to keep their outside interests and should instead be subject to a code of conduct on similar lines as that applying to current members of the House of Lords.

Defining the grounds for disqualification

343. The House of Lords will have the power to vary the disqualifying offices for elected members of the reformed House by resolution; this means that there will be a debate on the proposals before any order is made, and the House of Commons will not have any right to intervene. While the draft Bill is clear that the disqualification regime for appointed members will be set by Order in Council, there is no indication as to who will influence the content of such an Order in Council before it is made, although each House may subsequently cause its annulment. We asked the Minister why the Bill applied different mechanisms for determining what were disqualifying offices for elected and appointed members. He indicated that this difference was due to the need to provide for a list of disqualifying offices to be drawn up in advance of the first elections and the first round of appointments and that "to permit this we included a provision for the list of disqualifying offices to be modified for appointed members by an Order in Council".[422]He then went on to say:

"We agree that after the first round of appointments it should be open to the reformed House to make a resolution to amend the list of disqualifying offices for both elected and appointed members. We will examine the drafting of the Bill and make any necessary amendments, before introduction to ensure it reflects this, subject to any further views from the Joint Committee".[423]

344. The disqualification scheme for elected members of the reformed House is based on that for the House of Commons, which rests on clear and long established principles. Moreover, the electorate has power to ensure that candidates it considers have a conflict of interest are not elected. It is appropriate for the reformed House to approve changes to the lists of disqualifying offices for elected members just as the Commons approves changes to the relevant schedules of the House of Commons Disqualification Act. There is as yet little clarity about the principles which might underpin the disqualification regime for appointed members. We consider that the Government should set out what it thinks those principles should be. The Government should also reflect on whether it is in fact appropriate for a single House to determine the disqualification regime for appointed members.

21. Parliamentary Privilege and the draft House of Lords Reform Bill

Relevant sections of the draft Bill: Clause 56 and 58, and paragraphs 3 and 5 of Schedule 6

345. Parliamentary privilege consists of the rights and immunities which the two Houses of Parliament possess to enable them to carry out their parliamentary functions effectively. The principal privileges for present purposes are freedom of speech and exclusive cognisance. Freedom of speech is primarily achieved by the absolute protection of proceedings in Parliament guaranteed by Article 9 of the Bill of Rights 1689. Under this article the debates or proceedings in Parliament "ought not to be impeached or questioned in any court or place out of Parliament". The privilege of exclusive cognisance (or exclusive jurisdiction) is that Parliament must have sole control over all aspects of its affairs and determine for itself what its procedures shall be.

346. It is of course possible for Parliament to provide that the Courts may encroach on matters falling within its exclusive cognisance or even upon Article 9 as it relates to proceedings in the courts. But in such circumstances Parliament should make such provisions advisedly. There are a number of provisions in the draft Bill which sit uncomfortably with the principles of Article 9 and with exclusive cognisance. This is acknowledged in Clause 2 of the draft Bill whereby subsection 2 qualifies the assertion at subsection 1 (c) that nothing in the Act affects the privileges of the House.

Clause 2, subsection (2):

(2) Subsection (1)(c) is subject to—
(a) sections 36(1)(a) and 38(1)(a) (minimum age for elected and appointed members);
(b) sections 49 and 50 (resolutions that disqualification is to be disregarded);
(c) section 56 (standing orders about expulsion and suspension);
(d) paragraphs 3 and 5 of Schedule 6 (standing orders about selection of transitional members).

(3) Nothing in the provisions of this Act affects the validity of anything begun before the provision comes into force (for any purpose) and completed afterwards.

Cm 8077, page 36

347. The principal areas of concern are Clauses 56 and 58, and paragraphs 3 and 5 of schedule 6.

348. The Clerk of the Parliaments and the Clerk of the House of Commons raised their concerns in respect of these provisions both in general and specifically in the following terms. The Clerk of the Parliaments warned:

"At present, the courts and Parliament have a generally good relationship whereby each respects the other's position, and the Committee may want to consider whether there is a risk of the courts being drawn into passing judgment on whether the House has complied in particular cases with provisions in the Bill. That would undermine the principle laid down by Article 9 of the Bill of Rights that proceedings in Parliament "shall not be questioned in any place out of Parliament".[424]

The Clerk of the House of Commons shared his concerns:

"I think that, if you are talking about legislation, a great many undesirable consequences follow from that. If you start to regulate the internal processes of Parliament by legislation, there is only one way of deciding any difference and that is through the courts. It may take a fairly long time to decide something or resolve an issue that the two Houses might well decide in parliamentary business overnight or in the course of a sitting day. Also, because the courts are going to have to look at parliamentary materials to come to a decision, that will drive a coach and horses through Article 9 of the Bill of Rights. That is an outcome about which I would be extremely concerned".[425]

349. The Clerk of the Parliaments was particularly concerned about Clauses 56 and 58. He said to the Committee:

"Clause 56 is headed 'Expulsion and Suspension' and goes into various provisions as to how it should work. I suppose that the bit I am most nervous about is subsection (4) onwards ... Subsections (4) to (7) are in effect about retrospection. They raise the question of whether things that are a ground for suspension happen before or after a set date. That immediately sounds like the sort of thing that might be challenged. On practical grounds it may not be very sensible, because, as the Lords Members of the Committee will know, the House has used its power of suspension. It would probably like what is available to be clearer. This would leave a gap in relation to any conduct before the relevant date. Those are the bits that, by going into detail about what happens within the House, make it look as if an attempt to bring a case to court might well get a hearing. On Clause 58, there is perhaps little more that I need to say, except that by specifying that we cannot question proceedings because of "(a) a vacancy among the members, or (b) the participation of a person who should not be participating" on general legal principles, it hints that other things might give rise to questioning it. These are obviously things that could be tested only when they arose, but the Committee might want to guard against the risk of opening up a field day for lawyers".[426]

350. We consider Clause 56 first. It provides for standing orders to make provision under which the House of Lords may by resolution expel or suspend a member. A statutory power is necessary because currently members of the House of Lords cannot be expelled, and suspensions cannot last longer than a single Parliament. The clause provides that such resolutions must specify when the matters giving rise to the resolution occurred, and that the matter cannot have occurred before the person became a member of the House of Lords, or before the beginning of the transitional period (as defined in the Bill). This is the most problematic of the provisions, because it defines what must be specified in the text of the resolution of the Lords, and also, by implication, stipulates that such resolutions will only be valid if made according to Standing Order. The courts could potentially be asked to adjudicate not on whether or not a resolution had legal effect, but on the adequacy of the House's Standing Orders, or whether or not it had properly applied them.

351. Providing for matters to be determined by Standing Order is not new; the House of Lords Act 1999 provides for excepted hereditary peers to be chosen by a process set out in standing orders, and that there should be by-elections, but that provision explicitly states that "Any question whether a person is excepted from section 1 shall be decided by the Clerk of the Parliaments, whose certificate shall be conclusive." The draft Bill by contrast, contains no such provision for deciding disputed matters without resort to the courts.

352. We recommend that Clause 56 should be restricted to providing that the House of Lords has power to expel or suspend its members. We are confident that the House will use that power responsibly and make appropriate provision itself.

353. In the draft Bill, Clause 58 (Proceedings) provides:

"The proceedings of the House of Lords are not to be called into question because of—

(a) a vacancy among the members, or

(b) the participation of a person who should not be participating."

354. Given that Clause 2 maintains nothing in the draft Bill "affects the rights, powers or privileges or jurisdiction of either House of Parliament", it is hard to see why the provision in Clause 58 is necessary. We are also mindful of the concerns of the Clerk of the Parliaments.

355. We consider that Clause 58 of the draft Bill is unnecessary and should be omitted.

356. Paragraphs 3 and 5 of Schedule 9 also seek to specify the contents of Lord Standing Orders relating to transition. Here too the House should be trusted to work out for itself a suitable way of proceeding.

357. The sub-paragraphs in paragraphs 3 and 5 of Schedule 9 which go beyond prescribing that "selection is to be made in accordance with standing orders of the House of Lords" are unnecessary and should be omitted, reflecting the approach of the House Lords Act 1999.

358. We further recommend that for the avoidance of doubt the Government should consider the insertion into the Bill of a general saving provision, like that used in the Parliamentary Standards Act 2009, as follows: "Nothing in this Act shall be construed by any court in the United Kingdom as affecting Article IX of the Bill of Rights 1689".

22. The Parliament Acts

359. The draft Bill makes no mention of the Parliament Acts, although the Government both in the White Paper and in their evidence to the Committee placed great reliance on the fact that the Acts will continue in force, and may be used with more frequency, even after the reform is in place. They also assume that the eventual Bill, when introduced, can itself be passed under the Parliament Acts, should it prove necessary. The written evidence from Lord Pannick, who had taken part in the Jackson case, and Lord Goldsmith, a former Attorney General, are particularly illuminating on both these questions, as is Lord Pannick's oral evidence.

360. First, can a Bill on these lines be presented for Royal Assent under the Parliament Acts? Lord Morris of Aberavon submitted written evidence which expressed doubts, reflecting some of the views expressed by some of the judges in Jackson. He said that the constitutional issues raised by the Bill might be such as to be "so fundamental that even a sovereign Parliament cannot act". At Lord Morris' exhortation, the Committee sought the advice of the Attorney General. The Attorney General declined to provide that advice on the grounds that or was inappropriate for the Law Officers to advise Parliament on the Government's legislative programme. The Committee regrets that the Attorney General felt unable to assist the Committee to understand his reasoning in respect of such an important matter.

361. Both Lord Pannick and Lord Goldsmith considered that the Parliament Acts could properly be used to reform the House of Lords, and that the courts would uphold such a decision, despite the remarks by some of the judges in Jackson. In oral evidence, Lord Pannick set out the reasons why he considered the Parliament Acts could be used in such a way:

The first is that the 1911 Act makes very clear the circumstances in which it does not apply. It lists exceptions; constitutional reform—reform of the upper House—is not one of them. As Lord Bingham said in the Hunting Act case, the word used in Section 2 of the 1911 Act is "any", and any Bill means any Bill, subject to the defined exceptions. The second reason is that the whole point of the 1911 Act was to provide a mechanism by which disputes between the two Houses could be resolved without the appointment of a large number of new Peers. It would be very surprising if the courts were to interpret the 1911 Act so that it could not resolve a dispute between the two Houses. The third reason is that it is absolutely clear that the reason why the 1911 Act was passed in the first place was to enable the House of Commons to have its way, if there were a dispute, on issues of major constitutional reform. ... The fourth reason, if one needs to go this far, is that there are ample statements in Hansard indicating that it was very much the intention of the Government to have the ability to use the 1911 Act to secure fundamental constitutional reform, in particular reform of the House of Lords.[427]

362. In his written evidence, Lord Pannick gave more detail about the historic context:

"The legislation was deliberately designed to ensure that, in the event of a dispute, the elected House of Commons could prevail over the unelected House of Lords. ... Courts should be very reluctant to undermine the political victory of the House of Commons by restricting its ability to decide when it is appropriate to use the powers conferred by the 1911 Act, subject only to the express limitations contained in the 1911 Act itself. Any use of the section 2(1) powers would occur only in the circumstances of a highly contentious political dispute. The courts should stay well away from implying limits on the ability of the Government, through its majority in the House of Commons, to resolve a political stalemate."[428]

363. A second question then arises, about whether the Parliament Acts would continue to apply to a largely elected second chamber. The Government clearly assumes that this would be the case, since the ability to use the Parliament Acts is one of the reasons given for continued Commons primacy.

364. Lord Goldsmith considered that the Parliament Acts might not apply once the House had been reformed. He gave a number of reasons for this. Parliament "did not intend that the provisions of the Act would apply to "a second Chamber constituted on a popular … basis." Further the Act clearly contemplated that when that came about it would be for the legislation at the time to make provisions "for limiting and defining the powers of the new second Chamber".[429] In consequence, he thought the following difficulties might arise. First, it could provide a new and elected House of Lords moral justification for declining to give way to the House of Commons and put to rest any argument that failing to give way was unconstitutional; second, there could be a legal challenge, in accordance with the principle that legislation must be interpreted in the context of the conditions at the time of its enactment, so that the words "House of Lords" might be considered only to apply to a House in its unelected form. Lord Goldsmith said: "Whilst the application of this principle may be uncertain in the context of this Bill and the precise way the Parliament Acts operate this does at least give rise to doubt that the Parliament Acts, or at least all their provisions, would apply in the absence of clear Parliamentary enactment to that effect".[430]

365. When we put this to Lord Pannick, he considered it a difficult question, but agreed with Lord Goldsmith:

"My opinion is that the better view is that the 1911 Act would not apply in the event that the upper Chamber were wholly or mainly elected. I say that for these reasons. First, the Preamble to the 1911 Act makes it very clear indeed that Parliament's intention was to move in the future to a second Chamber that was popularly elected. Secondly, it is clear to my mind that the purpose of the Parliament Acts was to regulate the relations between the two Houses at a time when one House was elected and one was not. Thirdly, there is no material that I can see in the Hansard debates that suggests that the 1911 Act was intended to apply even when we moved at some time in the future to a position where both Houses would be elected"[431].

366. Lord Goldsmith warned "whilst it would be open to Parliament to legislate now to make clear that the Parliament Acts should operate in the same way in relation to an elected House the vague and general provisions of the proposed Section 2 including Section 2(1)(b) do not seem to me adequate for that purpose".[432] Lord Pannick concurred:

"it is absolutely vital, in my opinion, for the reform Bill to specify with clarity whether or not it is the intention that the Parliament Acts should continue to apply in the event of there being a substantially or wholly elected upper Chamber. It would be extremely undesirable to leave that fundamental question unclear for the future; the inevitable consequence is that the matter would end up in court rather than being decided by Parliament."[433]

He did not consider that Clause 2 of the Bill "adequately addresses that question".

367. It is not for this Committee to give legal advice on the applicability of the Parliament Acts to a reform Bill. We leave the evidence of Lord Pannick and Lord Goldsmith to speak for itself.

368. In spite of the Government's confidence, distinguished lawyers have some doubts as to whether the Parliament Acts would continue to be effective once the second chamber was elected or largely elected. If the Government wish to ensure that the Parliament Acts apply to a reformed House, they should make statutory provision for it.

23. Dispute Resolution

369. The draft Bill contains no provisions about conciliation mechanisms between the two Houses. The Government seeks to rely on the Parliament Acts (see section 22) to maintain primacy. Currently disputes about legislative drafting are resolved through "ping-pong", backed by the implicit threat of the use of the Parliament Acts. Several witnesses, such as Graham Allen MP, Peter Riddell and Damien Welfare thought improved conciliation mechanisms might be needed to settle disputes between the reformed House and the Commons.[434] While the Clerk of the Parliaments had some doubts about the practicality[435] of, for example, a conference between the Houses, he considered that "as a way of changing the tone, so that we looked at reconciliation rather than one House withdrawing its decision, it might be worth a try. As I say, it has happened before, so it could be practical".[436]

370. The Minister for Political and Constitutional Reform considered that it was not necessary to take a view on conciliation mechanisms at present, and that the dangers of setting down the dispute resolution mechanism in statute outweighed the benefits:

"Ultimately, the back-stop is that the Commons has primacy through the Parliament Acts. Because of that, our tradition suggests that you would get that dispute resolution mechanism, as happens now, evolving through convention. I think that that is much more sensible than saying that we have got to decide today what the relationship will be between the two Chambers in 15 years' time, decide now how you would deal with those disputes and set that down in statute so that it would be decided by the courts. I do not think that that is how we have traditionally done things in this country, and I do not think that it is necessary in this case".[437]

371. We agree that dispute resolution procedures should be a matter for the two Houses of Parliament, not for the courts. Nonetheless, we believe that the Government should consider proposing improved dispute resolution procedures as part of the process of reforming the House of Lords. We have already recommended that a Joint Committee be established to consider the conventions which should govern the relationship between the two Houses; it should also examine the ways in which differences might be resolved without resort to the Parliament Acts.

24. Referendum

372. By any standard, the Government's proposal to reform the House of Lords is of major constitutional significance. While the current draft Bill is advanced by the coalition Government, the Labour Party also expressed itself at the last general election as being in favour of a democratically elected upper House. The Government's view is that:

"because all three parties were in favour of this, we did not think that a referendum was justified. When the House of Lords Constitution Committee looked at referendums, it said that it thought that abolition of the House of Lords would be a subject on which you would automatically want to have a referendum, but it did not say that changing the composition of the House of Lords would be such a proposition. So, no, we do not think that a referendum is necessary, and that is why we did not propose it in our draft Bill or White Paper".[438]

373. Despite the constitutional importance of the subject, the lack of a clear party division on the issue means that any opposition to the proposed reform cannot readily be tested at any future election by voting for one or other candidates seeking election to the House of Commons. If the Government has its way, the draft Bill will have become an Act before the next general election, at which the first tranche of elected Members of a reformed House of Lords would be seeking election. There is thus no opportunity for the electorate to provide a mandate for these proposals.[439]

374. Several witnesses giving evidence to this Joint Committee called for a referendum before the proposals in the draft Bill are commenced. As Mr Christopher Hartigan, who described himself as "a member of the public with an interest in constitutional matters and Lords Reform in particular" put it:

The fact that elections were mentioned in the three manifestoes does not mean it is the settled view of a party, it is not, or the majority of members of a party agree with it or that the electorate want it either. It can be said that the fact that it was in three manifestos makes it clear that the people had no choice. It should also be remembered all three parties LOST the election. ... If the government believe this is the will of the people then it should proceed on a free vote of their representatives or hold a constitutional referendum before such important changes are made.[440]

375. Sir Stuart Bell MP supported a referendum on "such a major change to our constitution" which sought to ask "whether the electorate wished the House of Lords to be replaced by a second chamber wholly-elected, whether the electorate wished the House of Lords to be replaced by a second chamber, partially elected, and whether it wished election to be by first-past-the-post or proportional representation".[441] Bernard Jenkin MP similarly argued that a referendum was required because of the major constitutional change that the Bill would introduce and pointed to the AV referendum in 2011 as a recent precedent.[442] Penny Mordaunt MP did not necessarily advocate a referendum, but thought that the refusal to offer one "is at odds with the principles the Bill's promoters advocate and is in contrast to that held on the less significant constitutional matter of the voting system for parliamentary elections".[443] Thomas Docherty MP thought it was reasonable that the public should be asked their view on such a radical change to the dynamic and operation of the Upper House, to say nothing of the decision to create another 300 full-time politicians.[444]

376. Mark Ryan, Senior Lecturer in Constitutional and Administrative Law at Coventry University, maintained that a referendum was necessary as "constitutional reform has been far too parliamentary-centric and introspective without any real reference to engaging the wider public".[445] Liam Finn called for a referendum, but suggested that there be no turnout threshold requirement ensuring the binding nature of the referendum and a state-funded public education scheme, so that the public could make an informed decision.[446]

377. Professor Vernon Bogdanor told us in oral evidence that a referendum would be the right way forward because all three parties proposed an elected Lords in their election manifestos in 2010, so there was no way for the voter to indicate his or her opinion: "I think it would be right to hold a referendum on this issue, which I think is a greater change than the alternative vote system that has been rejected".[447]

378. Peter Riddell referred us to the Report of the House of Lords Constitution Committee of the Lords on referendums, in which the Committee acknowledged that, if referendums were to be used, they were most appropriately used in relation to fundamental constitutional issues; the Committee concluded that whether an issue raised "an important question of principle about a principal part of the constitution" provided a useful test, first, of whether an issue was of fundamental constitutional significance, and second, of whether a referendum was therefore appropriate.[448] In the view of some members of the Committee, changing fundamentally the composition and method of selecting one chamber of Parliament appeared, prima facie, to meet the test in respect of affecting a principal party of the constitution and raising an issue of principle. Other members of the Committee noted, however, that the Constitution Committee's report included a list of proposals which would fall within this definition: while the abolition of either House of Parliament was included, reform of the House of Lords was not.

379. Peter Riddell's own view was that there was a strong argument that such a fundamental constitutional change in the relationship between the two Houses should be subject to a referendum.[449] According to Peter Riddell, polling evidence from the Hansard Society's annual audit of political engagement "shows terribly shallow political engagement ... Knowledge about what the Lords does is pretty low, and knowledge of what the Commons does is pretty low too. I think people have contradictory views on it".[450] He warned whatever the ostensible question, the way people voted in referendums depended on extraneous political circumstances.[451]

380. Professor Sir John Baker QC told us that he did not believe in referendums, because it was impossible to frame a question in a way that is not slanted: "Whenever you are faced with a single question in a referendum, you immediately want to say, 'Well, yes if this, but no if that'. I am not sure how you could frame the question".[452] The Electoral Reform Society did not see any need for a referendum.[453]

381. Unlock Democracy's view is that referendums should be triggered by a popular process rather than by the government of the day.[454] Unlock Democracy told us that, as all the parties were committed the case of House of Lords reform, there was sufficient legitimacy to go ahead and do it; but on the other hand, if there was evidence that a significant proportion of the public disagreed and wanted a referendum on the subject—with a trigger of two million signatures—Unlock Democracy would not be opposed to a referendum in those circumstances. Peter Facey was not sure that a referendum would seal the argument:

I am not sure that the turmoil would be any less if we had a referendum. All it will do is that the issue over which there is a fight will be different—it will be over the terms of the referendum and there will be clauses on whether there should be a super-majority, for example. The idea that simply by having a referendum you will save time in Parliament and will all be able to move on, leaving it to the electorate, is a nice one, but from previous experience I do not think that it would happen.[455]

382. Lord Cormack of the Campaign for an Effective Second Chamber questioned why a Bill which sought to claim democracy as its hallmark, made no provision for the people to pronounce in a referendum.[456] Paul Murphy MP also argued the way in which Parliament was organised should also be subject to a referendum: "To be perfectly honest, I see great benefit in the public debate that will be held about it ... A referendum would generate a proper debate and people in the country could make their minds up. It would also obviously give legitimacy to the solution".[457]

383. The clarity of a popular verdict in a referendum would depend on there being a straightforward question to put to the voters. As Baroness Hayman told us; "at the moment there are so many issues that it would be very difficult to focus the public debate on how to go forward".[458]

384. While our primary task is to review the draft Bill in the White Paper referred to us, it is highly probably that a desire will be expressed in both Houses to debate whether a referendum ought to be held on the House of Lords reform proposals. Even if the Government were to decide to make no such provision in the Bill itself, they would in our view nonetheless be well advised to facilitate debate before the Bill goes into Committee in the House of Commons on whether it be an Instruction to the Committee on the Bill that it may make provision in the Bill for a referendum on House of Lords reform.

385. The Committee recommends that, in view of the significance of the constitutional change brought forward for an elected House of Lords, the Government should submit the decision to a referendum.

385 Mr Mark Harper MP (Q Q 56, 61) Back

386 Cm 8077, page 19 Back

387 Cm 8077, page 20 Back

388 Unlock Democracy Back

389 Electoral Reform Society Back

390 Professor Hugh Bochel, Dr Andrew Defty and Jane Kirkpatrick Back

391 Democratic Audit Back

392 Professor Hugh Bochel, Dr Andrew Defty and Jane Kirkpatrick, Green Party Back

393 James Hand, Democratic Audit, Archbishops of Canterbury and York Back

394 Unlock Democracy Back

395 Electoral Reform Society Back

396 Q 621 Back