APPENDIX 1: MEMORANDUM FROM DR MEG RUSSELL,
READER IN BRITISH AND COMPARATIVE POLITICS, CONSTITUTION UNIT,
SCHOOL OF PUBLIC POLICY, UNIVERSITY COLLEGE LONDON |
You have asked me to submit some thoughts regarding
the task given to Lord Hunt of Wirral and his Group "to identify
options for allowing Members to leave the House of Lords permanently".
I hope that at least some of the points below are helpful to your
work. They are informed by the research that I in particular,
and the Constitution Unit more broadly, have conducted on the
House of Lords and options for its reform over the last 12 years
and more. I would of course be happy to provide more detailed
thoughts on some of these topics should you require.
The desirability of allowing retirement from the
There are two principal reasons why it is desirable
to introduce provisions allowing members to 'retire', or leave
the Lords permanently. The first is simply that some members of
the Lords would like to leave. The second is that under the current
system the size of the chamber is continually growing, in a manner
that may soon become unsustainable.
On the first of these points, members clearly do
already have the option of taking 'leave of absence' if they feel
that they can no longer contribute to the work of the chamber.
It is not my place to speak for members, and no doubt the Leader's
Group will take evidence from members about the pros and cons
of the leave of absence arrangements. But there are some obvious
difficulties if this remains the only route out of the chamber
(save for death) for most members.
The principal problem is that if a member takes leave
of absence there is no certainty whether or not they will return.
Many members do return from leave of absence, sometimes even when
they have not expected to do so. Most famously Lord Phillips of
Sudbury announced his 'retirement' from the Lords in 2006, only
to return in 2009. These uncertainties make it unclear whether
those on leave of absence should still be considered 'members'
of the chamber for accounting purposes. At a minimum their presence
on lists of members, etc, may make numbers in the Lords look more
swollen than they are. But more importantly, the party balance
in the chamber may be adversely affected, in ways that cannot
be properly resolved when members have not permanently departed.
For example, if 20 Conservative peers took leave of absence the
Conservative leadership would feel their loss, but at the same
time have difficulty defending the appointment of more Conservative
peers to take their place. In turn, members themselves may feel
that they are letting their party/group down if they take leave
of absence, as there is no guarantee that they will be 'replaced'
and their group may thereby be weakened. While it may be right
that a peerage should be for life, it seems unfair on members
that the honour of serving in the House of Lords should be a life
sentence from which there is no escape. The issues of party balance,
and links to the peerage, are both explored further below.
The second argument for introducing a retirement
option is the ever-growing size of the House of Lords. When the
bulk of hereditaries departed in 1999, the chamber was left with
666 members. Today it has 750 members (according to our records,
and excluding 16 members on leave of absence). Since the last
extremely large influx of appointees was dominated
by Labour nominees, the coalition parties may soon wish to appoint
more members. The chamber could therefore soon be well over 100
members larger than it was just 11 years ago. Again, it is not
my place to speak about the administrative difficulties that this
creates, as I am sure that you will hear evidence on this from
the House authorities. You may also hear about resultant political
difficulties from members themselves. But there is, at the very
least, a public relations problem if the chamber is seen to get
ever larger. It is already, by a long way, the largest second
chamber in the world.
The Constitution Unit has pointed out for many years
that there is a looming problem over Lords numbers.
In particular, as we indicated in 2003, 'There is a potential
conflict between rebalancing the House after every general election
and keeping its size manageable' (Russell and Hazell, p.12). This
has not been a great problem over the past 10 years, as Labour
remained in government for so long. Even in these circumstances
the numbers have grown, however, while any rebalancing in the
direction of the present government would clearly make matters
worse. One solution would clearly be greater restraint in terms
of appointments: both on the part of the political parties and
the House of Lords Appointments Commission. Another element that
could help would be a greater focus on appointing older members,
whose time in the House is likely to be shorter (on this point,
however, the trend seems to be if anything the reverse). But even
if these forms of restraint are applied there will remain a problem,
if a desire for political rebalancing makes it necessary at times
to appoint more new members than can be expected to depart through
Necessary restrictions should retirement be introduced
It therefore seems desirable to look at the options
for retirement from the House of Lords, and hence the work of
the Leader's Group is to be welcomed. But before turning to mechanisms
by which this might be achieved, there are two essential prerequisites
which I strongly believe must be built into ANY system of 'retirement'
or permanent departure from the chamber.
Restrictions on standing for the House of Commons
The question of restricting departing peers' ability
to stand for the House of Commons became controversial during
the discussion of the Constitutional Reform and Governance Bill
in the last parliament. That this matter became characterised
in terms of desirability or otherwise of a 'Mandelson clause'
is deeply unfortunate. The idea had been on the table for a long
time (long before Lord Mandelson was appointed), and for very
good reasons. The linking of this idea to a particular individual
thus unhelpfully politicised debate on what is an extremely important
point of principle.
The Royal Commission on the Reform of the House of
Lords proposed in 2000 that 'Members of the reformed second chamber
should not be eligible for election to the House of Commons until
ten years after their term of membership ends, whether or not
they serve out their full term.'
Their argument was that 'Would-be career politicians should not
be encouraged to see membership of the second chamber as a springboard
to membership of the Commons.'
The Constitution Unit strongly welcomed this conclusion, which
chimed with (and may have been informed by) conclusions drawn
from my own study of the Irish Senate. In Ireland it is common
for TDs (MPs) who lose their seats to be immediately appointed
senators, and for young politicians to serve an apprenticeship
as senators before running for the Dáil. My research noted
that in 1997, 23 of the 60 members of the Irish Senate had been
candidates in the recent Dáil elections, while 16 members
of the previous Senate had been elected to the Dáil.
Although this is very far from present experience with the Lords,
a rule change allowing peers to run for the Commons soon after
vacating their seats could encourage party leaders to appoint
more younger members who sought to serve a short term before running
for the Commons. Party leaders might even, as in Ireland, feel
encouraged to appoint recently defeated MPs on a 'temporary' basis
to the Lords until they could fight their Commons seats again.
Introducing retirement without a limitation on subsequently standing
for the Commons could therefore inadvertently completely change
the culture of the current House, in very undesirable ways.
This danger has been seen by others as well as the
Royal Commission. In 2002 the House of Commons Public Administration
Committee likewise recommended a period of 10 years before a departing
second chamber member could stand for the Commons.
In 2005 a cross-party group of senior MPs led by Paul Tyler, in
a report published by the Constitution Unit, recommended a similar
period of five years.
The government's 2007 White Paper accepted this recommendation,
though it did not find its way into the Constitutional Renewal
and Governance Bill two years later.
I believe that it is vital that such a provision for at
least five years, ideally ten should be built into any
future arrangements for retirement from the House.
Requirements for party balance
Another issue which has been less widely canvassed
with respect to the possibility of retirement from the present
House (although clearly discussed with respect to the composition
of a reformed House) is party balance. As indicated above, one
of the difficulties with the present 'leave of absence' system
is that if members depart on leave of absence this may leave the
numbers in their party/group depleted. Similarly, I understand
that one of the concerns amongst members with respect to the provisions
in the Constitutional Reform and Governance Bill was that there
was no guarantee that if they retired they would be replaced like-for-like
by new members of their party/group. Whilst obviously there may
be times when such like-for-like replacement might not be justified
(i.e. if a given group was already greatly overrepresented in
the House), it would be self-defeating if members felt unable
to take advantage of new retirement provisions for fear of weakening
their group. It is therefore important that any new system makes
clear how decisions will be taken regarding new appointments,
and the resultant party balance of the chamber.
In recent years there has been a growing expectation
that appointments to the Lords will be made in a way which is
broadly fair, if not exactly proportional, to the parties and
their electoral strength. The Royal Commission proposed that appointments
in a reformed House should be done in a way 'which matches the
distribution of votes between the parties at the most recent general
election.' This was
within a context of a new second chamber, where members served
fixed terms, and where one third of the members were appointed
at a time while one third simultaneously retired. Even under this
arrangement strict proportionality across the entire chamber
would never be achieved. More recently, the coalition agreement
went far further, suggesting that until such time as the Lords
was fully reformed 'Lords appointments will be made with the objective
of creating a second chamber reflective of the share of the vote
secured by the political parties in the last general election.'
This is, frankly, an unrealistic and politically unrealisable
goal. As suggested at the time by Michael Crick of Newsnight,
taken literally it would require appointment of around 200 new
peers (and would now require more than this, following the many
new Labour peers added subsequently).
Any attempt to pursue the coalition's stated goal would thus result
in the size of the chamber ballooning in an exponential and unsustainable
way. In contrast, a commitment along the lines that the Royal
Commission proposed to simply balance among new appointments
would be more manageable. Such a public commitment,
which could only be made by the Prime Minister, would probably
be necessary for a retirement system to function effectively,
for the reasons given above. It would also be desirable to keep
a cap on Lords numbers, which is one of the main reasons that
a retirement system is being considered.
Compulsory or voluntary retirement?
There are broadly two approaches that the Leader's
Group may wish to take to introducing retirement: in terms of
a voluntary and/or a compulsory scheme. Under a voluntary scheme,
as proposed for example in Lord Steel's Bills, and the government's
Constitutional Reform and Governance Bill, a provision would be
introduced allowing members to retire if they wished, but with
no obligation to do so. This approach, at a minimum, seems desirable
for reasons already indicated. Should members of the House wish
to permanently retire, they should be entitled to do so (so long
as the aforementioned restrictions have been put in place). This
would be adequate to address the first of the two reasons given
above for which retirement is being considered.
In terms of the second reason, it has often been
suggested that in order to encourage members to retire in sufficient
numbers to make a worthwhile difference to the size of the House,
some financial incentives must be provided. As an outsider it
is difficult to judge this reliably, and the Leader's Group will
no doubt want to take evidence on this point from members and
their whips. But it is clearly the case that many members of the
House have forfeited earnings, and/or pensions, in order to serve
in the chamber. Consequently, some may be dependent on Lords allowances
in order to comfortably survive, and thus feel unable to take
retirement. This is a question which the Leader's Group will no
doubt want to consider, but it in itself should not prevent the
introduction of a voluntary retirement scheme for those who feel
that they can use it.
Options for compulsory retirement
Should compulsory retirement be considered desirable,
perhaps because voluntary retirement is not expected to yield
enough volunteers, there are various options for building this
into the system. The most obvious are age limits or term limits,
both of which have been widely discussed in recent years. A third
option is some kind of ballot system.
Introducing an age limit for membership of the House
of Lords would obviously bring it more closely into line with
long-established practices for "retirement" in the world
of work. It would also bring the Lords into line, for example,
with the senior judiciary: where judges face automatic retirement
at age 70. But based on the House at the present day, a compulsory
retirement age of 70 would require 351 members of the chamber
to depart: almost half of its total membership. A retirement age
of 75 would affect 221 current members. Even a retirement age
of 80 would affect 115 members.
A retirement age could therefore be seen as an effective
means of significantly shrinking the size of the House of Lords.
But it would also result in the loss of large numbers of members
who still have much to contribute. The Lords, of course, is a
place to which many people "retire" from previous roles:
for example from the House of Commons or the civil service. A
relatively low retirement age (of, say, 70) would leave less space
for these members in future: amongst the current House at least
14 peers were appointed when already aged over 70, and at least
72 when aged over 65. Yet the contribution of peers recently 'retired'
from public life is widely appreciated and helps form the ethos
of the current House. On the other hand if a retirement age was
designed to remove more infirm or less productive members of the
chamber there is no clear age at which it could be set. Some may
fall into poor health in their 60s or early 70s, while others
are still contributing vigorously in their 80s.
While a retirement age may be in line with established
practice in the world of employment, it should of course also
be noted that age discrimination legislation and pressure on pensions
is gradually eroding this practice. For all of these reasons a
retirement age for the House of Lords does not seem an obvious
way to proceed, and if set it would need to be set relatively
high. Notably, few have suggested this option to date.
The suggestion of fixed terms has, in contrast, featured
widely in debates on the longer term reform of the House of Lords.
The Royal Commission suggested fixed 15 year terms for appointed
members, with the possibility of a second term of appointment
(at the discretion of the House of Lords Appointments Commission).
It also recommended that life peers appointed after its report
was published should be 'deemed to have been appointed to the
reformed second chamber for a period totalling 15 years from the
award of their life peerage', as these peerages were accepted
in the knowledge that reform was likely to follow.
This recommendation was never explicitly taken up, however. The
Public Administration Committee proposed ten-year terms for appointments,
while the 2005 report by the Tyler group of MPs suggested terms
equivalent (in normal circumstances) to three House of Commons
terms, with the possibility of one reappointment. The government's
2007 White Paper suggested 15 year non-renewable terms, while
its 2008 White Paper suggested appointment (should appointments
continue) for 12-15 year non-renewable terms.
It is therefore widely agreed that appointments in a reformed
chamber would cease being for life, but be for long terms, possibly
with limited opportunities for renewal.
During the passage of the recent Constitutional Reform
and Governance Bill there were moves by some members in the Commons
to introduce a provision for 'term peers' as originally proposed
by Andrew Tyrie and George Young in a Constitution Unit report
in 2009. This provision,
moved in an amendment by Andrew Tyrie and Keith Vaz, and supported
by the Conservative and Liberal Democrat frontbench, would have
allowed creation of peerages for the duration of (normally) three
House of Commons terms.
The measure was however opposed by the then government.
A move from life appointments to the House to fixed-term
appointments would be an obvious way of containing its growing
size. There would be a need to take care in designing such a system
to ensure that continuity and expertise in the chamber was not
lost, probably by allowing at least some provision for reappointment.
However, as emphasised by the Royal Commission, the power to make
such reappointments would best be given to the House of Lords
Appointments Commission, to avoid the political party leaders
increasing their hold over the chamber and its members. The introduction
of fixed term appointments would be a significant change, but
is probably desirable in the medium term, especially if moves
towards an elected replacement for the House of Lords are further
A final option for retirement was put by Paul Tyler's
group of MPs in 2005, and has also been suggested by the Public
Administration Committee and others. This would introduce a requirement
that a certain proportion of each group in the House retired on
a given date, with the decision on which members departed to be
taken if necessary by a ballot within each group. This proposal
was modelled on the arrangements for the departure of the hereditary
peers in 1999. Under these proposals one third of each group was
to be required to depart in the first instance, to be replaced
by elected members. At the second stage, one half of the remaining
life peers would similarly be required to retire.
Some modification of these arrangements could be considered in
order to reduce the size of the House, but might prove cumbersome
The role of the House of Lords Appointments Commission
Although the Leader's Group has not been explicitly
asked to consider the role of the House of Lords Appointments
Commission, some aspect of its work may touch on the Commission's
role and responsibilities. Most notably, if (as I have suggested)
a clearer principle for maintaining party balance in the chamber
is set down, it would be sensible for this to be policed by the
Commission. If reform went further, and fixed terms were introduced,
with some option for renewal, this would again be best managed
by the Commission. In both cases this would enhance transparency
by removing patronage powers from the party leaders. It would
therefore minimise the risk of accusations of gerrymandering,
in the case of party balance. Similarly in the case of reappointment,
it would avoid accusations of greater party control and patronage
over members of the chamber. This seems highly desirable in order
to maintain public trust in the appointments process.
Many have obviously suggested that the House of Lords
Appointments Commission should be put on a statutory basis. This
may be desirable, but it is not in itself essential in order for
the Commission to be given additional powers. Such powers could
be given to the Commission directly by the Prime Minister, as
they were when it was first established in 2000.
The link between membership and the peerage
Allowing members to retire from the House of Lords
might potentially raise questions about the life peerage, as members
would no longer necessarily sit in the chamber for life. In the
short term there is no reason why this necessarily should cause
difficulty. Convention changed quickly in 1999 when the great
majority of hereditary peers left the chamber, and it is now possible
to be a hereditary peer who is a member of the House of Lords,
but also a hereditary peer who used to be a member, or indeed
who has never been a member. The same adjustment could equally
easily be made with respect to life peers.
In the medium term, and particularly if there is
a move to fixed term appointments to the chamber, the obvious
next step would be to break the link between holding a peerage
and being a member of the House of Lords. Such a change has been
suggested by numerous bodies: including the Royal Commission,
the Public Administration Committee, and the Tyler group of MPs.
The principle was accepted by the government as early as 2001.
Such a move would not be a threat to the peerage itself: peerages
could continue to be given as honours. But it would help to clarify
that membership of the House of Lords is not just an honour, it
is also a job which requires at least some commitment of time.
Of course members of the House of Lords could, like anyone else,
be given peerages in recognition of past service. But breaking
the necessary link between the peerage and second chamber membership
would help clarify that the Lords is a working chamber, rather
than a historic curiosity.
The challenge of achieving reform
It is finally worth making a few remarks about the
nature of reform. The Leader's Group has been given the relatively
limited task of considering how members may depart the House of
Lords. This is, of course, greatly complicated by the surrounding
context on 'wholesale' or 'long term' House of Lords reform. The
coalition is committed to 'bring forward proposals for a wholly
or mainly elected upper chamber on the basis of proportional representation'
by the end of the year.
It is therefore unclear whether the Leader's Group is required
to make recommendations which will function alongside, or in place
of, such proposals. The questions of retirement in order to maintain
the current House in a sustainable state, or in order to force
departures to clear space for future elected members, are rather
different. However, some of the same mechanisms may apply in both
cases. The Leader's Group may want to offer alternate recommendations
As I have indicated, even if the present House continues,
the introduction of retirement provisions of some kind is desirable.
However, it must be noted that the previous government attempted
to introduce such provisions in its Constitutional Reform and
Governance Bill, and that these provisions failed. Eventually
they were blocked in the 'wash up' at the end of the last parliament,
but they had earlier faced some resistance in both chambers. The
provisions were resisted by some members who took them as an admission
that 'wholesale' reform was not going to happen, and indeed some
such members believed that minor 'tidying up' provisions to make
the existing House more defensible would make larger-scale reform
less likely. At the same time, some other members resisted the
proposals on the basis that they were the beginning of a 'slippery
slope' to larger-scale reform.
The Leader's Group must therefore recognise that
any recommendations that it makes, however sensible, will face
some opposition. Reforms which require primary legislation, in
particular, may prove extremely difficult to agree and to implement.
The current House of Lords continues to be seen as a 'transitional'
and 'unreformed' chamber which is on the brink of large-scale
reform. Yet this is not a new state of affairs: the chamber arguably
spent the entire 20th century in a similar condition. The history
of House of Lords reform demonstrates that reform happens rarely,
and 'wholesale' reform has yet to occur despite being
promised for at least 99 years. The key reforms of the 20th century:
in 1911, 1949, 1958, 1963 and 1999, were all 'partial' and 'temporary'
measures, to change single elements of the chamber's power or
membership, until a more settled or 'long-term' solution could
be reached. Thus while House of Lords reform is rarely off the
political agenda, the few successful reforms have been piecemeal
responses to certain elements that the majority sees as no longer
defensible. The inability to retire from the chamber may perhaps
be the next indefensible element which is due for such a reform.
Whether its time has yet come remains to be seen.
1 October 2010
24 In 2000 the next largest second chamber was the
Italian Senate, at 326 members (Meg Russell, Reforming the
House of Lords: Lessons from Overseas, Oxford University Press
(2000). For latest figures see: http:/www.ipu.org/parline-e/parlinesearch.asp
See Ben Seyd, Rebalancing the Lords: The Numbers, Constitution
Unit briefing 18 (1998); Ben Seyd, A Transitional House of
Lords: The Numbers, Constitution Unit briefing 45 (1999);
Meg Russell and Robert Hazell, Next Steps in Lords Reform:
Response to the September 2003 White Paper, Constitution Unit
briefing 105 (2003). Back
A House for the Future, The Stationery Office (2000), Recommendation
Ibid, paragraph 12.21. Back
Meg Russell, Reforming the House of Lords, op. cit., p.
Public Administration Committee, The Second Chamber: Continuing
the Reform, Fifth Report of Session 2001-02, House of Commons
Paul Tyler, Ken Clarke, Robin Cook, Tony Wright and George Young,
Reforming the House of Lords: Breaking the Deadlock, Constitution
Unit briefing 119 (2005). Back
The House of Lords: Reform, The Stationery Office (2007). Back
Op. cit., recommendation 70(g). Back
The Coalition: Our Programme for Government, 20 May 2010. Back
Op. cit., recommendation 74. Back
Ibid, recommendation 103. Back
2007 op. cit., An Elected Second Chamber: Further Reform of
the House of Lords, The Stationery Office (2008). Back
An Elected Second Chamber: A Conservative View, Constitution
Unit briefing 146 (2009). Back
See House of Commons Hansard, 26 January 2010, column 732. Back
Breaking the Deadlock, op. cit. Back
The House of Lords: Completing the Reform, The Stationery
Office (2001). Back
Coalition agreement, op. cit. Back