Examination of Witnesses
House of Lords Appointments Commission [Lord Jay
of Ewelme and Richard Jarvis] (QQ 379-406)
Lord Jay of Ewelme,
Chairman, and Richard Jarvis, Secretary, House of Lords
Appointments Commission
Q379 The Chairman: Thank
you very much for coming this afternoon. Obviously, the Appointments
Commission is a fair part of what we shall have to think about.
We are very grateful to you for coming. Would you like to make
an opening statement? That might be helpful.
Lord Jay of Ewelme:
Thank you, Lord Chairman. I should introduce myself as Michael
Jay, Chairman of the House of Lords Appointments Commission, and
this is Richard Jarvis, Secretary of the House of Lords Appointments
Commission. I begin by saying that I am here in my capacity as
Chairman of the House of Lords Appointments Commission, but I
would not pretend to speak on behalf of its other members, whose
views on House of Lords reform are, I expect, widely diverse.
These are my own views but they are drawn from my experience of
three years as chair of the House of Lords Appointments Commission.
The Commission as presently constituted is an advisory,
non-departmental public body, established by the then Prime Minister
in 2000. I am the second chair and took over in 2008. There are
seven members of the Commission. Four, including the chair, are
politically independent and appointed by open competition under
the rules of the Commissioner for Public Appointments, and three
members are senior politicians nominated by the leaders of the
three main political parties.
We have two quite distinct but related roles. The
first is to recommend independent Members of the House of Lords
for appointment to the Cross Benches. In line with our published
criteria, we recommend people based on their merit and ability
to contribute to the work of the House of Lords. Formally speaking,
the Prime Minister decides the timing and number, although we
have settled on a rhythm of around four to five appointments a
year. In the past 12 to 18 months, it has been more a rhythm of
four appointments a year. I should say that four to five appointments
a year is not far off what would, I understand, be required under
the Bill that you are considering.
A key point that I want to stress is that our remit
also includes the requirement to broaden the expertise and experience
of the House of Lords and to reflect the diversity of the United
Kingdom in its broadest sense. Those are aspects of the job that
we take extremely seriously.
The Commission's second role is in vetting for propriety
people who are recommended for peerages, including those put forward
by the political parties. The role of the Commission there is
to advise the Prime Minister on—I stress again—the
propriety, not the suitability, of party-political Members of
the House of Lords. It is for the political parties to decide
whether somebody is suitable to be a Member of the House of Lords;
we look at their propriety. It is a subtle but important distinction.
I should also stress that the appointments process
is not a normal appointments process, as it would be for a job
in the private or public sector. It is more of a continuing, rolling
process in which the number of very high-quality applications
that we get exceeds—I am glad to say—the number of
recommendations that we can make. That means that we have to make
some very difficult choices between some well qualified people,
many more of whom than we are able to recommend would be well
qualified as Members of the House of Lords.
We have recently looked hard at our criteria for
selection. The main criterion remains the need to show significant
achievement in somebody's chosen career or careers. I should stress
that the Commission increasingly looks beyond just one career
to see what somebody's achievements are in a career or outside
a career so that they bring to the House of Lords experience and
expertise in more than one field. We also look at the value that
a new Peer would bring, not just through ability and experience
but by adding to the skills and experience base of the Cross Benches.
We also require nominees to show that they are able
to commit the time to make an effective contribution to the Lords.
We seek a stated intention that they will remain independent of
any political party. This Commission, like the previous Commission,
believes that there should be a strong presumption that once you
are appointed to the Cross Benches you stay a member of the Cross
Benches and are not, or should not, be seduced across the Floor
to one of the political parties.
Those changes are comparatively recent; the Commission
has introduced them into its working over the past two to three
years. That shows the importance of allowing the Commission to
have the flexibility to make changes in the light of experience.
There will be changes that it will need to make.
Finally, I come back to the Commission's remit, which
I mentioned earlier, to broaden the expertise, experience and
diversity of the House. We are very conscious of the need to do
that and to balance the criterion of significant achievement with
Britain's diversity, which is really quite broadly interpreted.
By that we mean gender and ethnic minorities but also making certain
that the different parts of England, as well as the United Kingdom,
are represented in the House of Lords. Of the 59 appointments
made to the House of Lords by the Appointments Commission since
it was instituted some 10 years ago, 21 have been women and 13
have come from black or ethnic minority backgrounds, so 36 per
cent have been women and 22 per cent have been from ethnic minorities.
Those are just some of the initial points that I thought it might
be useful to make.
Q380 The Chairman: Thank
you very much indeed. Can I start off where I think you started
off, which is with the criteria? The Bill states that the Appointments
Commission should set its own criteria and process of appointment.
That is a fairly wide remit. Do you see your criteria varying
under the Bill from those you have at the moment?
Lord Jay of Ewelme:
I think that there are certain criteria which will be useful to
have on the face of the Bill. I think that political independence
and the ability to make an effective contribution to the work
of the House are things which it would be good to have on the
face of the Bill. There are other aspects of our criteria which
I think will not change but which could, and might or might not
be on the face of the Bill. I am talking here about diversity,
integrity and high standards in public life. Those are part of
our criteria. I do not think that they will change, although the
definition of diversity might change. I think that the key things
to put on the face of the Bill would be independence and ability
to make an effective contribution to the work of the House.
There is another issue of importance here. That is
that one of our main criteria at the moment is conspicuous merit
through a career. It is an interesting question whether, if there
were to be a change in composition as proposed in the Bill, you
would get the same sort of people applying or whether you might
need to move from clearly demonstrated conspicuous merit towards
clearly demonstrated promise, which is a tricky thing to do, but
I think there is an issue there.
Q381 The Chairman: Can
I be clear about one thing? If the Prime Minister comes to the
Commission and says, "I want to appoint X, but I want to
appoint him to the Cross Benches," do you say, "Well
that is a prime ministerial appointment; we do not really look
at anything except propriety," or would you say, "Well,
he has to live up to the criteria for the Cross-Benchers"?
Has that happened, anyway?
Lord Jay of Ewelme:
There has been one occasion on which someone who we thought was
going to be a member of a political party, when appointed, then
joined the Cross Benches. To my knowledge, the only exceptions
are that there is an understanding, a convention, that the Prime
Minister can appoint, I think, 10 distinguished public servants—I
am one of them, so it is a rough description—in the course
of a five-year Parliament. Those are people who are proposed by
the Prime Minister, and we would vet them for propriety, but that
would be the Prime Minister's choice. They are people like the
Cabinet Secretary and the Chief of the Defence Staff, who have
traditionally been appointed by Prime Ministers.
Q382 Lord Trefgarne:
I would like to ask
you about the vetting of political recommendations from the Prime
Minister. Could you say, during your time as chairman of the Commission,
how many political appointees you have approved, how many you
have rejected and what were the principal reasons for rejection?
Lord Jay of Ewelme:
I have not got the number that we have approved. I think we have
approved 110, roughly—
Richard Jarvis:
Between 110 and 120, I think.
Lord Jay of Ewelme:
I think it is between 110 and 120 who have been approved in the
last year or so, which is actually about twice as many appointments
as the Appointments Commission has made to the Cross Benches in
the last 10 years or so. There are some—I would prefer not
to go into the detail of numbers—who we have declined, or
recommended to the Prime Minister should not be appointed, because
they do not meet the criteria of propriety which we set down.
Lord Trefgarne: Why
should the number be sacred?
Lord Jay of Ewelme:
Because it is better that the number should remain private.
Ann Coffey:
Who decides that it should remain private?
Lord Jay of Ewelme:
We do. My view—I have been asked this by the Constitution
Committee, among others, at the time—is that the number
we turn down is private advice that we give to the Prime Minister.
Those who are appointed are clearly made public because they appear
in the list published by the Prime Minister, but we give him advice
and it is not for us to reveal the advice that we give to him
for those we recommend should not be appointed.
Lord Trefgarne: I
of course agree that the names should not be made public, but
I do not see why the number should not be.
Lord Jay of Ewelme:
The Commission has considered this; we have always preferred to
keep the number that we recommend—
Lord Trefgarne:
Do the candidates know?
Lord Jay of Ewelme:
This would be a matter between the candidate and the political
party.
Lord Trefgarne: You
do not tell them.
Lord Jay of Ewelme:
We give advice to the Prime Minister.
Lord Trefgarne: You
do not tell the candidates that they have failed.
Lord Jay of Ewelme:
No, we are asked by the Prime Minister to consider for propriety
a list of names. We then consult the various agencies, HM Revenue
and Customs, the security services, the police, and so on, and
make a judgment as to whether they meet the criteria or not and
give advice accordingly to the Prime Minister.
Q383 The Chairman:
This becomes irrelevant under the Bill, does it not?
Lord Jay of Ewelme:
Yes. It is a function we have now; I do not think that it would
be relevant under the Bill as it now stands. It is something of
interest to PASC and the Constitution Committee, who asked about
it when I gave evidence to them.
The Chairman: Just
to clear up this point, can you tell us what your criteria for
propriety are?
Lord Jay of Ewelme:
Yes: "in good standing in the community in general and with
the regulatory authorities in particular" and that "the
past conduct of a nominee could not reasonably be regarded as
bringing the House of Lords into disrepute".
The Chairman:
Well, that is nice and general. I have no idea quite what it means,
but never mind.
Q384 Baroness Shephard
of Northwold: Lord Jay,
you have talked about the extreme care that the Commission takes
to ensure diversity and you have given impressive examples of
your progress in that area. If the proposal that 20 per cent of
the current House of Lords should be chosen by your Commission
were successful, do you think that elections would deliver the
same kind of diversity that you and your Commission are at such
pains to present?
Lord Jay of Ewelme:
I am not sure that that is really for me to say. Judging by the
House of Commons, I would have thought that the answer to that
is probably no.
Q385 Baroness Shephard
of Northwold: That would
certainly be my view as well. I have another question. Page 146
of the White Paper states that the aim of the legislation would
be to "attract individuals with different qualities from
members of the House of Commons". That is by election. Do
you have anything to say about that, because your experience is
all about appointing people to the House of Lords? Can you comment
on that assertion on the part of the Bill?
Lord Jay of Ewelme:
That is?
Baroness Shephard of Northwold:
That the result of the Bill being successful would be that the
House of Lords would "attract individuals with different
qualities from members of the House of Commons"—I quote;
that is not very good English. You are concerned with the qualities
of the people that you see. What do you think about that assertion,
which is of course a key element of the whole legislation?
Lord Jay of Ewelme:
This is for elections or nominations?
Baroness Shephard of Northwold:
It is the assertion that the result of the changes proposed by
the draft Bill would attract such individuals, from which one
must assume that the Government mean a large number of elected
people.
Lord Jay of Ewelme:
Let me talk, if I may, about the appointed element. As far as
the Commission is concerned, under a shift from the present position
to one in which you were appointing people to a full-time, salaried
job for 15 years, you would be attracting, I suspect, a different
sort of applicant than is now the case. I do not say that there
would be no overlap between the two, but I should think that there
are quite a few present Members of the House of Lords who have
come through the Appointments Commission who would not apply if
it was a full-time job, if it was salaried, and so on. I think
that there are some who would—some who would find being
a Member of the second Chamber of a legislature in the 21st century
sufficiently interesting in itself to want to do that. As far
as non-elected Peers are concerned, I think there would be a difference,
but it would not be a wholesale difference from the people whom
we appoint now.
Baroness Shephard of Northwold:
Thank you.
Q386 Baroness Andrews:
In our various sessions with very different witnesses, we have
had many different discussions about the nature of expertise and
the way it is deployed around the House. My first question is:
do you think that we are making the best use of the expertise
that we have in the House, bearing in mind your criterion to appoint
people who are pre-eminent in their fields and beyond? The second
question is this: if, in fact, the outcome is a House where 20
per cent of the Members are appointed, there is a tendency in
our discussions for witnesses to suggest that the heavy-lifting
of expertise will be contained in those appointed 20 per cent.
That suggests to me that the criteria would have to change beyond
what you have already set out. Do you think that there would be
pressure on an Appointments Commission to be more representative
of the range of expertise that a modern legislature would need?
Would you feel, for example, more compelled to appoint more scientists
or more communications experts, or do you have an instinct as
to what that range of expertise would look like, or indeed whether
it would be necessary?
Lord Jay of Ewelme:
I will take the second question first. I certainly think that
a range of expertise would be necessary. I think that it would
be the job of an Appointments Commission to ensure that there
was a sufficient range of expertise. Of course, getting that in
a smaller House with 20 per cent being a smaller group would be
harder than it is now. The way that we have gone about this is
that we Commissioned a study a couple of years ago from UCL on
what expertise was available to the House. That enabled us to
identify what seemed to us to be gaps. Depending on the nominations
that we have had, we have tried to make certain that we can fill
those gaps, in so far as that is consistent with merit and so
on. We are updating that study at the moment to make certain that
in future we are conscious of where the gaps are—not just
the gaps on the Cross Benches but the gaps in the House. I think
that that kind of work would be necessary under the Bill with
20 per cent nominated by an elections committee. It would be necessary
to continue to try to make certain that there was a good diversity
of skills.
As to whether the best use of the expertise is made
now, that is a rather difficult question for me to answer. I am
very conscious in many of our debates that there are extremely
high-quality interventions from different Members—not just
from the Cross-Benchers but from people such as Lord Winston and
others from the party-political Benches as well. There are times
when a name goes up and you go in and listen because you know
that the person speaking is going to say something really worth
listening to. Whether the best use is made, I do not know. I think
that good use is made of quite a lot of Peers' very relevant expertise—relevant
in the sense of making a real contribution to the legislation
going through the House.
Q387
Baroness Andrews:
I have one further question. With regard to the research that
you have done with UCL, you say that you have been looking at
gaps across the Chamber.
Lord Jay of Ewelme:
Yes.
Baroness Andrews:
Of course, in an elected House there would be no such opportunity
to identify gaps and fill them. Do you think that we would get
people who are expert, in the conventional sense that we use the
word in the House, standing for election?
Lord Jay of Ewelme:
I think that you would get some, yes. This is a personal view,
but I should have thought that there would be some people with
real expertise who are interested in the workings of the constitution
and who, at a certain stage in their career, would think it really
interesting to stand for election to be a Member of the House.
I do not think that you can presume that there will not be that
degree of real expertise. Would it be the same expertise as now?
I would think not if it were an elected House. Would it be the
same expertise as with the 20 per cent appointed? No, I do not
think that it would be the same because I think that the nominations
committee would be looking specifically for a balance of expertise
for the Cross Benches.
Q388
The Chairman:
Before we leave this point, may I ask one follow-up question?
On the numbers in the Bill at the moment, it would be a House
of 300. If that were to be adopted and you had 20 per cent of
that number coming through an appointments Commission, how many
a year would that be?
Lord Jay of Ewelme:
It would be about five a year, which is about the same number
as we appoint now.
The Chairman:
Suppose that the numbers went up from 300 to, say, 450, then obviously
the number that went through your Commission would increase accordingly.
Do you think that that would make it easier for you to get a spread
of expertise across the House?
Lord Jay of Ewelme:
Yes, I think that it would make it easier to get a spread of expertise
across the House. I think that the higher the number, the easier
it is to get a spread of expertise.
The Chairman:
Do you think that they should be full-time or part-time?
Lord Jay of Ewelme:
My own view is that the Cross-Bench Peers in an 80:20 elected
House should be full-time and not part-time. If they are part-time,
there will be a very great distinction between the elected Members
and the appointed Members, which would also begin to play out
in questions as to whether they should vote and, if they did,
how that would be regarded by those who were full-time, party-political
and elected. Therefore, my own view is that they should be on
the same salary and time basis as elected Members.
Q389
Lord Hennessy of Nympsfield:
Could I ask a quick supplementary, first, on the vetting point,
bearing in mind, Michael, your experience as Permanent Secretary
at the Foreign Office? Is the vetting threshold roughly that of
developed vetting for Crown servants?
Lord Jay of Ewelme:
Roughly, I would think. What we do is consult a number of different
agencies to ensure that the standards of propriety have been met.
Lord Hennessy of Nympsfield:
So that is MI5, MI6, Customs and Revenue and Special Branch?
Lord Jay of Ewelme:
There is also the tax and revenue.
Richard Jarvis:
Relevant government departments.
Lord Jay of Ewelme:
And relevant government departments.
Q390
Lord Hennessy of Nympsfield:
Thank you. I was interested in the UCL work—Robert Hazell's
unit, I would imagine. Did you publish? If so, I missed it. Could
we possibly have the update if it is done in time for our deliberations,
Chairman?
Lord Jay of Ewelme:
The update is being done now. The original version we can certainly
send to you but we are in the process of updating it. It was extremely
useful. It can only be a pointer, because there is inevitably
going to be some question about exactly where expertise lies and
how up to date it is, but it did point out some areas where there
appeared to be a gap, and that has been useful.
Q391
Lord Hennessy of Nympsfield:
When we had the Minister, Mark Harper, with us the first time,
I asked him whether the Government, in the course of preparing
this draft Bill, had made a study of your first 10 years of existence
as a Commission. If I remember rightly, he said no. Did you do
an internal audit of your first 10 years that we might have a
look at?
Lord Jay of Ewelme:
The annual report publishes the names of the people.
Lord Hennessy of Nympsfield:
I mean rather more than that. I am talking about the way your
working practices changed as you developed and went on.
Lord Jay of Ewelme:
Each annual report describes what we have done and how the criteria
have changed and evolved, so that is all public knowledge. Each
time there is a change in our criteria, for example, or a change
in the processes by which we operate, that is made clear on our
website. The website is kept fairly constantly up to date. To
my knowledge, we have not sat down and said, "Well, we've
been around for 10 years now. How has it gone?"
Lord Hennessy of Nympsfield:
Do you not think that that would be a good thing to do?
Lord Jay of Ewelme:
It probably would be a good thing to do but we do not have a huge
number of staff.
Q392 Lord Rooker:
I have a couple of questions, supplementary to start with, going
back to the earlier bit. For the avoidance of doubt, the issue
of the numbers of those you put to the Prime Minister is surely
the equivalent of the annual honours list. People can apply to
that in the same way as they apply to you; the numbers may be
very small and as such identifiable. I take the view that you
should not publish the numbers; you should just publish your advice
to the Prime Minister—that is, those recommended. That is
my personal view. On the ability to contribute to the House, is
it an ability to contribute in general or in particular, knowing
as the Commission does that the work of the House encompasses
all of public life? It encompasses the whole legislative programme
plus material that is not—that is, scrutiny and the Select
Committees. How do you target the people who you are looking at
for their ability to contribute, if they are experts in a narrow
field?
Lord Jay of Ewelme:
That is a very important point, and we are increasingly looking
at people who are not just experts in a narrow field. We say to
people during interviews, "You have fantastic expertise in
X, but X is only likely to come up once a year—what else
is there that you think you will be able to contribute?"
So we are asking people at interviews what is the range of expertise
that they have so we can make a judgment as to whether they will
be able to contribute, not just in what has been their main chosen
profession but more widely to the work of the House. That is one
answer to the question. That is a judgment that we make during
the interview process—will people attend the House regularly,
will they speak in debates, will they attend and speak in Select
Committees? Those are questions that we ask them. There has been
over the years a steady move away from seeing membership of the
House of Lords as being an honour to seeing it as a job. That
is something that the Commission has welcomed and, in a sense,
encouraged. As things are now, we make a judgment at an interview
as to whether we believe that a nominee will spend a reasonable
proportion of time on the work of the House. Assuming that we
are convinced that the answer to that is yes, when a decision
by the Commission as a whole is taken to recommend somebody, I
ring them up and say, "You said in the interview that you
would be prepared to spend a reasonable proportion of time—enough
to make an effective contribution. Does that remain the case?
We are recording this conversation because we want to have it
down that you said that." We want to get away from people
just wanting the honour and then not coming to the House at all.
That has worked better as time has gone on. There will be some
people who do not come very often and some who do not come very
often because they are doing extraordinarily important pieces
of work—and when they do come they will bring to the House
the value from the work that they are doing. But we want to avoid
the people who do not come at all.
Q393 Lord Rooker:
Let us say that you have that phone conversation and they say,
"Yes, I will be able to do that, because the working pattern
and rhythm will fit in with me doing other important pieces of
work." Is it now the case, under the new proposals in the
Bill, that when they say yes, the reply is, "However, none
of your important pieces of work over the next 15 years can involve
service on any public body or what we might call a quango or anything
like that, because you will be disqualified. For 15 years, you
as an expert in your field will be under the disqualification
process because you are a full-time Member of the second Chamber
and subject to the House of Commons Disqualification Act, effectively."
Do you think that the reaction when you make that phone call will
be different under that arrangement from what it is today?
Lord Jay of Ewelme:
Yes, I do. This in a way goes to the heart of it. The nature of
the expertise of people who would come to the House if it were
as proposed in the Bill would be different from what it is now.
Some people who would now choose to apply would not choose to
apply, while some people having looked closely at the terms of
reference will conclude that it is not possible to be a full-time
Member of a reformed House of Lords and continue to do other things
as well. I think that this raises an interesting question as to
what the nature of the expertise is that you would be able to
attract under the provisions in the Bill. I think that it would
be different from now.
Q394 The Chairman:
How do you think that it would be different? In what respect?
Lord Jay of Ewelme:
Lord Rooker has already given some examples of professions that
would not be, as I understand it, compatible with the House of
Lords. If you are a university professor, will you have time to
do that and be a full-time Member of the House of Lords? If you
are a medical doctor, will you be able to do that? There are some
interesting questions here. There is some expertise that people
have gained in their careers, which they will be able to keep
up to date compatibly with being a Member of the House of Lords,
and there are other areas where that will not be the case. The
result will be a different mix of expertise coming in to a full-time
House of Lords from that which comes into the House of Lords as
now constituted.
Q395 Baroness Scott of
Needham Market: Let
me confirm what I have already said in writing: I declare an interest
as a member of the current Appointments Commission. As a member
of the current Commission, I am quite interested in the process.
At the moment, we have a steady churn, if I might so describe
it, of people applying and their applications being considered.
Then, of course, there is a flurry of activity when there is a
political list. I wonder, Lord Jay, how you see the flow of work
under the new system, where we would sit round and not do anything
for a period of time and then have to make all the appointments
in one go at the general election. What thought have you given
to how that might work? Indeed, what sort of gap would you need
between the results of the election for the 80 per cent and then
the puff of white smoke from the Appointments Commission, which
gives you the 20 per cent? How would that work—and how would
you link that to the question of expertise, because you would
then have to do an assessment of what expertise you have among
the elected powers?
Lord Jay of Ewelme:
These are good questions. Clearly, if the Bill were to enter into
law, that is a key thing for a new statutory Appointments Commission
to consider—exactly how it would work. Having thought about
it, it seems to me that what would not be possible would be that
on a day that an election was called you would try to get together
and interview a large number of people and come up with 20 people
for 14 days after the election. That would not work. You would
have to be working if not throughout a five-year electoral period
then at least, I would have thought, for a couple of years before
you assume that there would be an election in order to interview
quite a large number of people and arrive with a list of maybe
25 who you thought would be good candidates for appointment. Then,
when the time came, you would need to check, and I suspect that
some of them would say that they had received an offer in the
meantime and were not available, so you would go down to something
like 20. But you would need to do it on something like a rolling
process rather than suddenly be sitting down and doing it in a
rushed way. On the last part of the question, about how you relate
that to expertise, I think that you would want to try to ensure
that there was a reasonable balance of diversity in the broadest
sense in the 20 names that you were proposing for appointment—diversity
in terms of ethnic background and gender throughout the United
Kingdom.
Baroness Scott of Needham
Market: Would you then
see that you might have to really skew that list to make up for
imbalances on the elected side, although that would be difficult
with 20? Or do you think that you would just look for balance
among the appointed only?
Lord Jay of Ewelme:
I think that you would just have to look at the appointed only.
I have not thought about this point, but if there was an election
and therefore one-third was changing, you would know that two-thirds
were remaining and roughly what the balance of expertise was there.
To some extent you could try to correct or alter that by the appointments
that you were making to the Cross Benches, but clearly there is
a limit to which you could do that.
Q396 Bishop of Leicester:
This question anticipates our discussion next week, when we will
be thinking about the place of the Lords Spiritual and faith representation
here more widely. The submission from the Archbishops includes
a recommendation that there might be laid upon an Appointments
Commission a statutory responsibility to ensure a diversity of
faith leadership in a reformed House. I wonder how you react to
that proposal.
Lord Jay of Ewelme:
There clearly could be and, if there were, that would be for the
Commission to observe. We have operated on the basis, as I explained,
of conspicuous merit and diversity. Within those parameters, we
have appointed people who are from other faiths. There is therefore
a broader representation in the House of Lords now than before
of faiths other than the Church of England, so it is achievable
by merit.
I would prefer not to have it so that among the 20
or so whom one is appointing at any election, you start by saying
"Well, there have to be two or three from this area, from
another area, or a quota on diversity or a quota of some kind,"
as it then becomes very, very difficult to manage. That would
be my instinct. My instinct would be to do it on merit and to
be looking at the range of expertise that the House clearly needed,
rather than by quotas.
Q397
Lord Trimble:
I would like to raise a couple of points with you. First, Unlock
Democracy, who were here earlier with us, reminded us of the geographic
imbalance that there is in the present House of Lords. Was this
something that you took into account in the appointments made?
Lord Jay of Ewelme:
Yes, we are very conscious of geographic imbalance and we are
conscious of the need for there to be representatives from all
the kingdom—from Northern Ireland, Wales and Scotland. We
are also conscious of the need for there to be a geographical
balance from the regions of England, because there is a tendency
for people to apply from London and the south-east. In our view,
it is important that we ensure that the areas—particularly
the areas which the UCL study identified as gaps, which included
the north-east, for example—were represented properly. That
is something which the present Commission is very conscious of.
Q398
Lord Trimble:
Going back to some points raised by Lord Rooker and Lady Scott,
are you happy with the 15-year term? Did you consider or would
you like to consider other ways or other terms from the point
of view of the appointed Members?
Lord Jay of Ewelme:
I think that 15 years seems a reasonable term. You could put arguments
for different terms, but having 15 years and a third changing
every five years seems reasonable.
Lord Trimble:
But when you are looking for people who have demonstrated conspicuous
merit in their career, and all the rest of it, you are likely
to be looking to people who are getting on a bit in years. If
you add 15 years on to that, it is a problem.
Lord Jay of Ewelme:
We are, and there is an issue here. If you are appointing people
with a degree of expertise to a full-time House, how are they
going to maintain that expertise when they do not have the time
that they now have to pursue other interests and bring the expertise
thus gained into the work of the House of Lords? That would need
to be considered.
Lord Trimble:
It occurs to me that the appointed Members need not be tied to
the 15-year term of the elected Members, and that you could possibly
have appointed Members for shorter terms where their expertise
would still remain relevant. Because you would then be dealing
with a larger number of people, it might be easier to strike the
various balances that you have to strike—which, if you are
doing it with 20 persons at one time, does not really give you
much scope.
Lord Jay of Ewelme:
You could. Again, this is a personal view, but I think that there
would be something to be said for minimising the distinction between
those who are appointed and those who are elected. If you have
different terms of service or different periods of service, there
will be a much more obvious distinction between those sitting
on the Cross Benches and those who are elected as party-political
representatives. I would see some disadvantage in that.
Q399
Lord Tyler:
I want to revert to the brief answer that you gave to the Lord
Chairman a few moments ago, when he asked whether you thought
that the size of the House might be important in this respect
and what if we were not tied to 300 but went to a larger House.
Since then, you have constantly been referring to full-time parliamentarians.
We know what a full-time parliamentarian is in the House of Commons:
it is someone who works six or seven days a week. What do you
suppose that a Member of the new House would do in half the days
of the year when the House was not sitting? How can they be full-time
then?
Lord Jay of Ewelme:
I was using "full-time" in the sense that has been used
in the paper and in the Bill. It states that you would be there
for as long as the House was sitting. Yes, that would provide
time for people to maintain their expertise when they were not
required to sit in the House of Lords. For certain professions,
I suspect that that would be a satisfactory way to maintain a
degree of expertise. For some other professions, I suspect that
it would not, because it would be very difficult for six or seven
months of the year not to be able to do whatever it was you would
be required to do. For that reason, I say that there would be
a different kind of expertise coming to the House of Lords under
the proposed system than there is at present.
Q400
Lord Tyler:
I go back again to the Lord Chairman's question. Suppose that
we had a larger House. Suppose that there are 450. Suppose that
the elected Members are not necessarily going to be full-time.
They will maintain a connection with real life outside this building.
On the basis that you say that you do not wish the two types of
Members to be distinct in the sense of their commitment to Parliament,
would you accept that there would be an advantage in that, if
there were a bigger House, the workload would not be so great
and they, too, could retain an interest, a specialisation, a career,
which would enable them to bring a degree of outside expertise
to the House on a continuing basis?
Lord Jay of Ewelme:
Are you suggesting that if there is a larger House, the commitment
to be there will be less than if it is a smaller House.
Lord Tyler:
Yes, for both types of Members.
Lord Jay of Ewelme:
Clearly, the less the full-time commitment, the greater the chance
to maintain or develop expertise outside it. I still think that
it would be difficult to have the kind of expertise that you have
in the House of Lords at the moment. For example, you have some
who are surgeons, who managed to organise their life so that they
are surgeons in the morning and in the House in the afternoon.
Whether you could do that, I am not sure. I suspect that there
are some professions where it would be difficult to maintain the
same sort of expertise as people have now. The larger the House,
the easier it would be to do it.
Q401
Lord Tyler:
Let me just ask one other question in a different direction. Both
now and under the proposals, you lay great stress that any nominations
that come through your Commission to go on the Cross Benches should
be complete political eunuchs, if I may use that expression.
Lord Jay of Ewelme:
No, I do not think that that is a fair expression at all. I think
that Members on the Cross Benchers have very acute political antennae,
but they do not belong to a particular political party.
Lord Tyler:
But some who currently sit on the Cross Benches have had very
distinguished political careers. There is even a former party
leader who sits on the Cross Benches. Why should that one-way
street be permitted, but not the other way? Why should somebody
coming into the House have a continuing political interest but
also an active party-political past, but you cannot go the other
way: you insist that they sign in blood that they are not going
to suddenly see the error of their ways and want to join the Labour
Party.
Lord Jay of Ewelme:
We would not say that because you have been a member of a political
party in the past, you are ruled out from joining the Cross Benches.
There are plenty of people who have had political pasts but who
have since pursued non-party political interests who would not
be excluded, as the Commission now works, from joining the Cross
Benches.
Lord Tyler:
But it is a one-way street, is it not? There are members who have
been nominated from the parties and who have been members of a
party group who are now permitted to join the Cross Benches, but
you do not permit it the other way.
Lord Jay of Ewelme:
There has been one case of moving the other way. I think that
the Commission's view is that you are appointing to the Cross
Benches and that that should be for the length of period for which
you are in the House. You are appointing people to the Cross Benches
of the House of Lords, not as a way in to a party-political position.
Lord Tyler:
As you read the Government's proposals, do you think that will
continue—that the one-way street will be firmly in place?
Lord Jay of Ewelme:
As I understand it, the Appointments Commission would be seeking
nominations from people for the Cross Benches, and it would set
its own criteria as to whether it thought that people with political
backgrounds would be appropriate for the Cross Benches. That would
be for the Commission to determine.
Lord Tyler:
It is the commitment to continue to be a Member non-aligned with
any of the parties that I find interesting.
Lord Jay of Ewelme:
That is the view of this Commission and the last Commission: that
there should be such a commitment to remain independent. That
is what the independent Cross-Benchers are.
Q402 Baroness Young of
Hornsey: I was thinking
about that last point, because my initial reaction was that it
would be very difficult to change from being a Cross-Bencher and
go into one of the political parties, because they would have
been voted in. I was trying to work out how that would work.
Lord Jay of Ewelme:
There has been one case in the last few years.
Baroness Young of Hornsey:
Under the proposed system, I cannot see how that would work, because
the people on the party-political Benches will have been elected.
Lord Jay of Ewelme:
I think that it is a very good point. I do not claim to be an
expert, and I do not quite see how you would be able to move from
an appointed Cross-Bencher to be part of an elected bloc.
Baroness Young of Hornsey:
Sorry, that was a slight red herring, because that was not my
question. A number of people whom I speak to about the Appointments
Commission, which is the route through which I came here, are
completely unaware of it. I wondered if you had any views of how
you would get publicity and advertise the fact that these new
roles were coming on stream, were the Bill to be passed.
Lord Jay of Ewelme:
We consider constantly how we should make ourselves more widely
known outside the House—and, to some extent, inside the
House. Within the House, I do that, because I am in the House
most days. It takes me quite a lot longer nowadays to get across
from one side of the House to the other than it did before I took
on this job. That is a good thing, because it means that you are
being constantly lobbied; that is part of the job. Outside the
House, I have been on the "Today" programme. Some members
of the Commission make speeches which include references to what
the Commission does. We have recently sent the last Lord Speaker,
Baroness Hayman, a list of points, so that when she is going around
talking about the House of Lords, on the basis of her experience,
she can also talk about the role of the Appointments Commission.
We do a certain amount of that. Could we do more? We could do
more. We think about that a lot. If there were a new system and
a new House of Lords and a new statutory Appointments Commission,
the Commission would need to make itself more widely known than
we are.
Q403
Baroness Andrews:
Lord Jay, how do you imagine the ecology of the new House?
Lord Jay of Ewelme:
I am sorry, the what?
Baroness Andrews:
The ecology of the new House—how it is actually going to
work? You said a few moments ago that you wanted to minimise the
distinction between the appointed group—we are assuming
the 20 per cent—and the elected Members. In fact, there
would be a much greater distinction than we have now between the
Cross-Benchers and the other group. How do you think that this
hybridity would affect the way that the House worked and the way
that the two groups represented themselves to each other? We have
had witnesses who see this as a recipe for dysfunction, because
the appointed group might be seen to have less legitimacy than
the elected group. Is there an argument there?
Lord Jay of Ewelme:
I think that there is an argument there, yes. We have done some
pretty weird things over the years to our constitution, and it
is not always a model of logic, so it is perfectly possible that
you could have something which is, on the face of it, illogical
but it could work, so I would not rule out it working, but I think
that there would be a difference. The difference between nominated
Peers and elected Peers would be different from the position now
between everybody being nominated, but some being party-political
and some being Cross-Benchers. I think that that would make a
difference. I think that it would feel slightly different. Difficulties
could arise if there were a vote and it appeared to have been
carried or not carried as a result of the votes of the nominated
Peers. That seems to me to be an issue that would need to be considered.
Would it make it unworkable? No, I do not think that it would
make it unworkable; I think it would create an issue. I do not
think that it is an unworkable thing to have, but I think it would
create different sorts of tensions from the ones you have now.
Baroness Andrews:
Are there any obvious ways of ameliorating those tensions?
Lord Jay of Ewelme:
One way to make them worse, it seems to me, as I said earlier,
would be to make the Cross-Bench Peers in other ways different
from the other Peers, whether through length of service, salary
or whatever. That is something to avoid. You talk about ecology,
but it is very difficult to know what the chemistry of a House
of this sort would be. There would be people on the Cross Benches
who would, I suspect, work closely with people whose interests
they shared, so it would not be completely 80 per cent and 20
per cent. The way that the House works, they would begin to meld,
but there could in certain circumstances be differences.
Q404 Oliver Heald:
The people who were elected would represent a region. They would
have some constituency work and they would be "full-time".
The people who were selected and appointed
would not have the burden of the representation of a region—they
would not have the constituency work—and, from what you
are saying, quite a lot of them would want to pursue a career
as a great lawyer, surgeon, or whatever. Is that not going to
lead to a cry of the part-time Peers versus the full-time Peers?
Do you think that there is a reputational concern that we should
have that the appointed Peers could get rather a rather raw deal
in the media?
Lord Jay of Ewelme:
I do not think that I was saying that they would do. I was saying
that some Cross-Benchers would be able to maintain a degree of
expertise, because they would not have the other obligations which
elected Peers would have. I still think that quite a number of
people would not find it easy to maintain the sort of jobs that
they have outside the House of Lords and the expertise that they
bring in under the new system.
Oliver Heald:
So they would not offer themselves; the pond would be smaller.
Lord Jay of Ewelme:
I think that it would be different rather than smaller. There
are quite a few people I can think of who would not put themselves
forward as a Cross-Bench Peer who are now Cross-Bench Peers, but
I think that others would be attracted to being a Cross-Bench
Peer as a full-time, salaried job. That is why I said at the beginning
that you would be looking for promise as much as achievement,
because these would be people who had achieved quite a lot but
had not got to the very pinnacle of their career or near the pinnacle
of their career, which they would find difficult to combine with
being a Member of the House of Lords.
Oliver Heald:
So people would give up their career in order to become appointed
Peers.
Lord Jay of Ewelme:
Yes, I think that they would have to. If it is going to be a full-time
job, or a full-time job for seven months of the year, that would
be incompatible with quite a number of other professions. People
would be giving up one career and taking on another, but that
would not preclude them, in some cases at least, from maintaining
the expertise that they have in their career while they are a
member of the House of Lords.
Oliver Heald:
This is always the criticism of the House of Commons—that
people have left their career at a certain point but never reached
the full heights of running the Army, being a top silk or running
a solicitors firm, for example. Are
you saying that we would end up with more people who are like
the people who are standing for election and fewer people who
are real national names?
Lord Jay of Ewelme:
I think that there would be fewer people who were real national
names, because you would have fewer people right at the top of
their profession doing a lot of other things as well. That is
true, but there would be some people from some professions who,
perhaps towards the end of their career, would see this as a sensible
and attractive way to spend the next 15 years.
Q405
The Chairman:
I am bit lost about the mechanics of all this now. Under the Bill,
all the life Peers go at the end of a transition period, whether
that is in three parts or a grand cull at the end of it. For the
sake of my question, let us consider the grand cull. They are
all there until the end of the first Parliament, when all the
elected Members come in and all the transitional Members go. That
presumably means that you would go as well. Who would appoint
the new Commission?
Lord Jay of Ewelme:
I think that the Bill has the Joint Committee appointing the new
Commission.
Richard Jarvis:
I think that it is the Prime Minister, under the Bill.
The Chairman:
I thought that it would be the Prime Minister.
Richard Jarvis:
That is what the Bill says, yes.
The Chairman:
That is what I thought. Let me go on with the grand cull. You
have been reappointed, or your successor has been appointed—
Lord Jay of Ewelme:
I am appointed for one five-year term, so it will not be me.
The Chairman:
I am talking about at the end of the grand cull. If you are still
with us, no doubt you would remain in this post, but we are talking
about 2025. You stand a better chance of being here than I do,
at any rate. Would you be entitled to consider the existing Cross-Benchers,
who would have just been thrown out?
Lord Jay of Ewelme:
I had not thought about that. I would think that if they applied,
they would be considered alongside other applicants and the then
Commission would have to judge their suitability alongside others.
The Chairman:
That would be a difficult process.
Lord Jay of Ewelme:
Yes. It is not an easy process anyway, to be honest.
Q406
The Chairman:
The other point that I wanted to ask about is the role of the
Prime Minister when you make an appointment. The current arrangements,
as I understand it, are that you recommend them to the Prime Minister
and he recommends it to the Queen.
Lord Jay of Ewelme:
For the Cross-Benchers? Yes. But all Prime Ministers since this
started have said, in effect, that they will just pass the recommendation
on to the Queen.
The Chairman:
He is just a postbox.
Lord Jay of Ewelme:
Each Prime Minister has said, I think, that they would wish to
have the right to check—
Richard Jarvis:
The formal constitutional position is that the Prime Minister
retains the responsibility for both the numbers and the timing,
so the Commission agrees with the Prime Minister the numbers and
the timing.
Lord Jay of Ewelme:
We agree the numbers and the timing. I think that I am right to
say that Prime Ministers have also said, on national security
grounds, that they needed to look at a list to ensure that there
was nothing that they found really difficult. But in practice
each Prime Minister has passed the list on to the Queen.
The Chairman:
He has the right to look at it and, if need be, amend it.
Lord Jay of Ewelme:
He certainly has the right to, because we are an advisory Commission;
we make recommendations to the Prime Minister. It is for the Prime
Minister to decide whether he or she wishes to pass that on to
the Queen or not.
The Chairman:
Thank you very much. I thank both of you gentlemen for coming
this afternoon. It has been revealing and useful; it has been
a very helpful session.
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