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



Hansard Society

The Hansard Society believes the draft Bill is in many ways a missed opportunity; whilst the composition and form of election or appointment of members to a new second chamber are crucial, the Bill is also an opportunity to think about the powers of the House of Lords and whether these too should be revised in any way.

Powers

It is not axiomatic that electing a majority or all members of the Upper House will result in a future constitutional clash with the House of Commons due to Peers asserting an equal democratic mandate. The House of Lords has gradually become more assertive over the last decade but this has been largely in relation to the executive. The different electoral system, term lengths and limits proposed for the reformed Lords, coupled with the constitutional reality that it is the Commons from which the government is formed and where it must sustain confidence, should underpin the primacy of the Commons.

However, it should not be assumed that the current conventions that have circumscribed the role and powers of Peers previously will necessarily be accepted in the future should a reformed House be wholly or largely elected. The applicability of the Salisbury Convention has already been the subject of debate in recent years and particularly so since the formation of the coalition government and the merging of manifestos to create a programme for government. By their nature conventions change over time and have force only if their nature and intent are clearly understood and accepted and only for as long as those concerned are willing to observe them. Whether elected Peers in the future choose to do so may be dependent on specific political circumstances, the evolving relationship with the executive, and the changing tide of public opinion.

The Hansard Society has previously recommended that a comprehensive review of the legislative powers of the executive and Parliament be undertaken with a view to drawing up a concordat which clearly sets out where key powers lie, and clarifies the relationships between, and responsibilities of, the executive, the legislatures and the courts.[21] Such a review would embrace a study of the relationship between Westminster and the other legislatures in the United Kingdom, and with the courts and supra-national institutions such as the EU. Whilst not in any way underplaying the challenges that negotiation and adoption of such a concordat would pose, it would nonetheless be a very serious demonstration on the part of both Parliament and government that they recognise that the current way in which law is made is deficient; that they are committed to the process of reform; and that they are determined to ensure everything possible is done to assure the making of better law in the future. Reform of the House of Lords would provide the necessary impetus to undertake such work; codifying the desired conventions between the two Houses would establish a clear and shared understanding of the relationship between the Houses—for example, in relation to the extent of the Lords' delaying powers—and thereby ensure that it is more likely to be respected in the future.

The proposed full-time, 15-year term length for elected Peers allows for a long-term perspective. As such, consideration could have been given to what opportunities this long-term focus would provide to broaden the legislative and policy scrutiny work of the House of Lords and to ensure that any gaps in the scrutiny landscape are filled. For example, the Hansard Society has previously highlighted the weaknesses in financial scrutiny undertaken by Parliament. While continuing to respect the financial precedence of the Commons, a reformed second chamber could play a more active role in carrying out financial scrutiny, for example in the area of tax administration, following up recommendations of the Public Accounts Committee, and in the area of post-legislative scrutiny.[22] Similarly, the House of Lords could contribute to improved scrutiny of EU-related legislation.

Size, composition and term length

We contend that it is a basic democratic principle that the public should have an opportunity to elect and remove from office those who make the laws of the land. As such, the shift from what is now an appointed Upper House to one that is elected is one that we support. However, there are a number of unanswered questions and contradictions in the government's proposals that need to be addressed.

It is unclear how the Government has arrived at the number of 300 Peers to sit in a reformed Chamber (nor how they decided on 12 seats for the Church of England Bishops as opposed to the current 26). The size of the Chamber should be determined in relation to its role and function; there must be enough members to ensure that their roles—to debate, scrutinise and revise—can be carried out effectively. Previous proposals for House of Lords reform over the last decade have variously suggested an Upper House of between 350 and 600 members.[23] The draft Bill will provide for a Chamber that is significantly smaller. It may be that 300 members is sufficient, but this cannot be tested unless the government makes clear upon what basis it has reached this determination. At present, for example, there are 28 committees in the House of Lords (domestic and select committees) each generally with between eight and 12 members. Additionally, Peers are also required for service on joint committees of which there are currently 10 in existence. Of course, some members can serve on more than one committee but these figures suggest that more than two-thirds of the membership of a revised House will be involved in committee work. On top of this, time for legislative scrutiny and participation in general debates and question time must also be provided for. These figures would suggest that, particularly at key times in the legislative timetable, the capacity of the House might be stretched.

The proposal for a 15-year, non-renewable term does not sit with the principle that the public should have an opportunity to both elect and remove those who govern us; it provides for democracy but not accountability. A term of 15 years' duration might be said to be a justifiable compromise given the movement away from the life-long terms currently accorded peers. However, it is significantly beyond international norms; terms in other legislatures tend to be no more than eight years in length at most.

Nor can it be assumed that the independence of members will be enhanced because they will not face election. Although it is true that the House of Lords has become more assertive over the last decade, nonetheless this should not be overstated: on most issues those members aligned to a party in the current, unelected House will tend to vote with their party group. Members are freer to assert their independence than MPs—for example, because of the absence of whipping or the pressures that can be applied through local constituency party members—but on most issues they still tend to take their party's line. It is likely that the pre-disposition of members to vote with their party will therefore be at least as great, and probably more so, in a full or predominantly elected House regardless of whether or not the members face a future election. There is also a risk with the use of the STV system—which grants great influence to the party managers in relation to candidate selection—that socialisation into party norms and expectations will be reinforced very early on.

The government's proposals assume that the size of the constituency, the use of the STV system, and the long non-renewable terms, coupled with the different role and function of the House of Lords, will prevent newly elected Peers coming into conflict with MPs at a constituency level. These will certainly be ameliorating factors but it should not be assumed that Peers will not face pressures from the general public to provide a local constituency-style service and from their party to do the same in order to support and supplement party campaigning activity. There has been an explosion in the amount of constituency casework being dealt with by MPs in recent years and what the public generally say they want from their elected representatives is a 'local' focus. There is a risk that Peers will find themselves to be the next stop on the constituency casework conveyor belt, as constituents who cannot find satisfaction with one representative move on to another until they have exhausted all avenues. Evidence from Scotland and Wales, for example, would suggest that regional list members face an equally demanding case-load as that of constituency members; constraints on constituent access associated with large constituencies are also now readily transcended by online access to representatives via email and social media.

Appointments

The inclusion of appointed members in a reformed House is predicated on the value associated with the assumed independent expertise of many members of the current House. There is no doubt that many cross-bench peers do make an important and valuable contribution. However, what is meant by expertise and what range of expertise is desired in a reformed House—and therefore should be sought by the Appointments Commission in the future—should be subject to careful consideration and perhaps definition. Expertise suggests a degree of in-depth knowledge and experience in a particular area. However, expertise has a sell-by date; if members do not refresh and renew their knowledge and skills their expertise will not necessarily be current and therefore relevant to the work of the House. Moving to full-time, 15-year terms may not allow members to sustain their level of expertise if they are unable to practise their profession. The expertise of current members also applies to distinct, often niche areas of knowledge and experience and is therefore applicable to certain pieces of legislation but not necessarily the full gamut of legislation being dealt with in the House. Finally, recent research on the professional backgrounds of the current members of the House of Lords suggests that the expertise in the House is still drawn from a quite narrow range of specialisms, dominated by those from representative politics, the law, academia, business and finance. Expertise is much more sparse in areas such as planning and surveying, engineering and architecture, primary and secondary education, local government administration, and science (outside higher education).[24] If expertise is valued such that 60 members are to be appointed on the basis of expertise, then more detailed consideration should be given to what is meant by expertise, in what areas, and how this is to be sustained by members over the period of a 15-year term.

The differing qualities required of MPs and Peers

The government claims that the role and function of the Upper House—as a scrutiny and revising Chamber—should 'attract individuals with different qualities from members of the House of Commons'.[25] On this basis, to prevent Peers using their seats in the House of Lords as a launch-pad for election to the House of Commons, the Bill contains provisions for a time restriction to disqualify Peers from being elected to the Commons for a specific period after they cease to be members of the Upper House. However, the government does not propose that a similar restriction should be imposed on MPs to prevent them standing for election to the House of Lords. If the qualities that are sought in Peers are different from those of MPs—as the government's own argument explicitly suggests—then such a restriction would surely be equally desirable. While surveys of public attitudes suggest that the public support a shift to an elected Chamber, they do not want it to replicate the House of Commons. They want elections to the Upper House but do not want to vote for the current political class. Given that the proposed electoral system places significant influence in the hands of party managers, (as they will be able to exercise control over the composition and ordering of candidates on the party lists), such a restriction might therefore be a valuable mechanism to ensure that the membership of the Upper House remains demonstrably different from that of the Commons. As increasingly hollowed out institutions with declining membership and activist bases, this will, of course, present huge challenges to the political parties. However, it might serve to force them to think more radically about how, and from where, they recruit candidates for the House of Lords, thus providing the necessary catalyst to force the parties to do more to broaden the nature of representation.

Ministers

The Bill as currently drafted would confer on the Prime Minister an unfettered power to appoint as many ministers to the House of Lords as he or she might wish. The provision that requires these ministers to leave the House upon ceasing to hold ministerial office will ensure that the numbers do not accumulate significantly but, dependent on their number at any one time, they could, in certain circumstances, upset the balance of power within the House. Gordon Brown, for example, appointed nine such Peers to be ministers during his administration, some of whom served for only short periods of time. At present, 22 ministers outside Cabinet are based in the Lords. Previous proposals have suggested that a cap be placed on the number of ministerial appointments that can be in existence at any one time but the government proposes only that these should be of 'a limited number'. This issue should be revisited to provide greater definition and clarity as to what constitutes 'a limited number', thus guarding against the possibility of future abuse. Additionally, given the potentially controversial nature of this provision and the lack of scrutiny generally accorded to delegated legislation, the detailed arrangements to implement this should be set out in the Bill itself.

Women in Parliament[26]

The UK trails in international league tables of women's political representation. The proposed STV electoral model does have greater potential than other voting systems to improve women's representation and diversity. However, evidence from other legislatures (for example, in the Scottish Parliament) demonstrates that this alone is not a guarantee of such improvements nor of their sustainability; additional positive action measures are also required.

Reform of the House of Lords offers a once in a generation opportunity to increase the presence and voice of women in the Upper House. As such, the Bill should be amended to require the political parties to ensure the selection of equal numbers of women and men as candidates for election to the new Upper House and the Appointments Commission should be statutorily required to appoint equal numbers of women and men in the event that a hybrid House is agreed. Consideration should also be given to the effect that the right of ministerial appointment and the allocation of 12 ex-officio seats for Church of England Bishops—currently reserved seats for men—will have on equality and diversity of representation in a reformed Chamber.

Are the public interested in reform of the House of Lords?

If the Bill passes, a substantial public education campaign will be needed to inform voters about the role and function of the House of Lords and the process of election (and/or appointment) to it in the future. The Hansard Society's annual Audit of Political Engagement demonstrates that public knowledge about and interest in the issue of Lords reform is low. In 2010 only 14% of the public said they had discussed reform of the House of Lords with family or friends in the last year or so; it was eighth on a list of constitutional and political reform issues discussed, behind, for example, the EU, party funding, devolution and the electoral system. Twelve per cent of the public said they thought the House of Lords was elected and 14% said they didn't know.[27] Similarly, in the 2008 Audit, only 26% claimed to know 'a great deal' or 'a fair amount' about the issue of Lords reform. Thirty-six per cent said they were dissatisfied with how members of the House of Lords were chosen, 13% said they didn't know how they were chosen and 33% were ambivalent about the issue (neither satisfied nor dissatisfied). But only 16% said it was one of their top two or three priorities for constitutional change; much greater priority was accorded to reform of the Human Rights Act, party funding, membership of the EU, and the right of Scottish MPs to vote on English issues in the House of Commons.[28]

Additional reforms needed

There is a risk that in the debate about the long-term future of the House of Lords the opportunity to deliver tangible and important reforms prior to 2015 may be lost. There is much scope for improvements to the current size, composition and procedures of the House and these should not be forgotten. The core proposals contained in Lord Steel's Private Members' Bill, and the reports of the Leader's Groups on Members Leaving the House and on Working Practices should be implemented as soon as practicably possible. The latter in particular will provide for important changes in the way in which the House functions, enhancing its ability to carry out its legislative scrutiny function. The fact that the composition of the House may change significantly after 2015 should not be used as an excuse to allow the House to remain unreformed in the interim.

5 October 2011


21   A concordat of this kind has also previously been recommended by the Conservative Commission to Strengthen Parliament in 2000 and the Power Inquiry in 2006.  Back

22   See A. Brazier & V. Ram (2006), The Fiscal Maze: Parliament, Government and Public Money (London: Hansard Society), pp.57-59.  Back

23   The Wakeham Commission recommended approximately 550 members; the 2001 White Paper proposed 600 members; the Public Administration Select Committee suggested 350 in 2002; the cross-party group on House of Lords reform opted for 385; and the 2008 White Paper recommended 435. Back

24   See M. Russell & M. Benton (2010), Analysis of existing data on the breadth of expertise and experience in the House of Lords: Report to the House of Lords Appointments Commission (London: Constitution Unit, UCL).  Back

25   HM Government (2011), House of Lords Reform Draft Bill, Cm 8077, p.28.  Back

26   The Hansard Society is a founding member of the new Counting Women In (CWI) coalition of democracy and women's organisations campaigning to improve the representation of women in British politics and public life. Other founding members are the Centre for Women and Democracy, the Electoral Reform Society, the Fawcett Society and Unlock Democracy. CWI has submitted evidence to the Joint Committee separately; our recommendations here reiterate those of the CWI coalition.  Back

27   Hansard Society (2010), Audit of Political Engagement 7: The 2010 Report (London: Hansard Society).  Back

28   Hansard Society (2008), Audit of Political Engagement 5: The 2008 Report (London: Hansard Society). Back


 
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Prepared 23 April 2012