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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