James Hand
Introduction
This submission is made in response to the Joint
Committee on the Draft House of Lords Reform Bill's call for written
evidence on the terms of the White Paper and draft Bill (Cm 8077).
The White Paper holds that the reformed House should have the
same functions and same powers (paras 6-7) as the existing House
of Lords, while having injected into it the 'fundamental democratic
principle' that it should be wholly or mainly elected (para 13);
this being, in the words used in the Foreword, a "unique
opportunity for our country to instill greater democracy into
our institutions". The Draft Bill aims to do this through
a series of convoluted provisions and transitional arrangements.
The principal suggestion in this submission is that rather than
setting out a package of proposals representing radical "incremental
reform" (para 1), the government's aim of maintaining the
status quo in terms of function and power, while addressing the
desire for a more democratic house, could better and more simply
be met through an evolutionary, yet swifter, reform.
In posing a choice between a wholly or mainly elected
House of Lords (para 22), they are posing a potentially false
choice. As outlined in House of Lords Reform: Many Anniversaries
and a False Dichotomy? [2009] 4 Web JCLI, election and appointment
are no more mutually exclusive states than election and hereditament.
The successful 'Weatherill hereditaries' concept could be replicated
with Life Peers (but with the proportion of cross-benchers fixed
and the numbers of party peers changing according to, for example,
either general or local election results). This could provide
a combination of the benefits of election and appointment while
mitigating some of the problems with both. A relatively minor
evolutionary change to the membership of the House would be better
attuned to maintaining the current position as to role and powers
than a revolutionary one (which risks unintended, if not unforeseen,
consequences from which clause 2 may prove little protection;
a great advantage and weakness of conventions being that they
can be subject to change and reinterpretation).
Size, Composition, Term and remuneration
While there is an argument for a salaried and full-time
house to be smaller (not least to keep the costs down), the White
Paper does not appear to address the value of full-time, as opposed
to potentially part-time, members (beyond the statement in para
12 that "[t]he Government expects members of the reformed
House to be full-time Parliamentarians") nor does it address,
in any depth, the current attendance.
In the era of the fostering of the Big Society, it
seems somewhat perverse to professionalise and severely narrow
down a body of highly talented, experienced and cost-effective
volunteers, with members not receiving the honour of a peerage
but nigh-on £900,000 (at today's prices) in salary over their
likely 15 year term (one term expected to be 3 x 5 year Parliaments
with a salary greater than that received by members of devolved
legislatures; paras 24 and 111).
A House allowing part-time members would not need
to be salaried, would allow the members to retain their active
links with the real world and better prepare them should they
leave the House after a number of years (a 15 year hiatus in any
career could be problematic unless members are expected to enter
new careers, e.g. lobbying, after service).
A focus on average attendance, as in para 12, ignores
the breadth of experience that the House has within it and the
nature of averages. "300 full-time members" could conceivably
be able to "fulfil the same range of duties as the current
average daily attendance of 388" but they would not have
the same experiences (both past and current) as, and are unlikely
to be able to fulfil those duties to the same level as, a greater
number of part-time members who attend when their expertise and
interest are most of use. Based on the 2009/2010 attendance figures
(and excluding those peers who died or were introduced in the
period) the average peer attended 57% of the sessions (or 60%
if those who did not attend at all are excluded). The average
daily attendance of 388 must thus comprise very different people
on different days and constraining the House to 300 full-timers
excludes many more regular attendees than the juxtaposition of
300 and 388 suggests.
Under the evolutionary system suggested above (whereby
life peers are elected by their fellows, with a fixed number of
cross benchers and the parties' numbers varying according to election
results, i.e. Weatherill (as amended) Life Peers), the virtues
of part-time membership could be retained, the remuneration costs
would not be increased and the size of the House could be capped
at a higher level providing a greater range of representation.
If a cut-off was placed at 300 based on the 2009/10 figures it
would see peers who attended 73% of the time excluded whereas
500 would take the attendance down to 44% (of course there would
be no cut-off as such as the life peers would be elected but it
is an approximation of the lost experience at various sizes).
Some form of cap on the size of the House is necessary for practical
reasons and this system would provide for this—obviating
the problem demonstrated by Hazell and Seyd (in 'Reforming the
Lords: the numbers' [2008] Public Law 378 at 383) of keeping
a House of Life Peers proportional through new creations.
Electoral System
The Weatherill (as amended) Life Peers system would
meet the Coalition Agreement's commitment to a system of proportional
representation for the reformed House of Lords as the number of
party members would change proportionately to the election result
used (e.g. most likely general election but could alternatively
be local or European elections).
The Government's proposal to have STV elections on
the same day as the general election risks confusion (as with
the Scottish elections) and, while cheaper than holding the elections
on a separate date, is unnecessarily expensive to meet the aim
of proportionality which could be achieved far more cheaply by
the method above. Furthermore, the above method is much simpler
than the creation of further constituencies which will be almost
but not fully co-extensive with the European regions (para 43).
Transition
The Weatherill (as amended) Life Peers system would
not require any transitional arrangements; it could be implemented
swiftly and could even be introduced as an amendment to Lord Steel's
Bill (akin to the 1999 Weatherill amendment). The Government's
three options have a shorter transition than that in the first
option in the previous administration's last White Paper but it
is nonetheless still a lengthy period. Option 2, as the White
Paper notes, risks creating an even more unmanageable House than
the current one and Option 3, given the desire to have a House
of 300, seems a rather brutal cut (but not as brutal as the 1999
reform). Option 1 would seem the better option balancing the smooth
running of the House with a wealth of continued experience but
a larger, potentially part-time, voluntarily House would avoid
such an elongated transition.
Ministers
The Government proposes that Ministers should only
be drawn from the elected and transitional members, presumably
because the appointed element are independent. However, in order
to provide the flexibility of appointing ministers (which has
been used to notably good—and less good—effect in
recent years) they then propose that there will be ad hoc members
who will have membership only for the duration of their ministerial
appointment. A Weatherill (as amended) Life Peers system would
not need such an ungainly provision as a similarly small number
of peers could be created during a Parliament and then face election
among their peers in what would be the usual way. Nor would it,
as the Government's proposal appears to do, preclude the albeit
rare possibility of independents acting as Ministers.
Conclusion
The Draft Bill arguably transforms the House of Lords
into a democratically legitimate second chamber but does so at
an unnecessarily high cost (both financial and experiential) and
level of complexity. The Government could meet their stated aims
through a simpler and faster change which could see many of the
recognized virtues of the current House maintained, the fundamental
democratic principle satisfied , the problem of a growing House
solved and reform completed, not just under way, by 2015 (and
quite possibly well before).
21 September 2011
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