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



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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Prepared 23 April 2012