27 June 2013

This morning I gave oral evidence to the House of Commons Political and Constitutional Reform Committee inquiry entitled House of Lords reform: what next? This follows the failure of the coalition’s bill last year to introduce elections to the House of Lords. The committee is asking whether – at least until the next major package of reform comes along – other small, sensible improvements could be made to the Lords. It focuses particularly on means to control the chamber’s growing size, and to improve its reputation (for example by ending by-elections for hereditary peers, or evicting peers convicted of serious criminal offences).

In my evidence (which can be viewed in full here) I sought to emphasise three things:

• First, that both history and international experience shows that large-scale second chamber reform is very difficult to achieve. Throughout the 20th century politicians repeatedly failed to reach agreement on long-term reform, and the only reforms that succeeded were small, piecemeal changes to deal with the most anomalous and problematic aspects. (This history is ably set out in recent books from Chris Ballinger, who also gave evidence today, and from Peter Dorey and Alexandra Kelso.)

• Second, the most anomalous and problematic aspects of the Lords now (and therefore those that need most urgent reform), are as much about routes into the chamber as routes out. The committee’s inquiry so far has focused a lot on options for retirement or removal of peers, but even if such mechanisms allow the chamber to reduce in size, numbers will soon increase again unless the flow of new members is regulated.

• Third, while there are key changes that can only be achieved through legislation (such as the private member’s bill currently being pursued by Baroness Hayman in the Lords, and Dan Byles in the Commons) there are also important steps that can be taken without a bill. In particular, the Prime Minister’s unregulated patronage could be dealt with (at least in the short term) through him giving more power to the House of Lords Appointments Commission to regulate the chamber’s size and party balance. He could do this unilaterally.

One of the key problems with the Lords at present is that the number of new peers appointed far outstrips the number permanently departing (which for life peers can only occur when they die). Since 2010 David Cameron has made over 120 new life peers, but fewer than 60 have died. Even if no more appointments are made, the chamber will almost certainly be larger at the end of this parliament than it was at the start. And there is nothing new about this pattern: in the early 18th century the Lords had only 200 members; by the early 19th it had 350, and by the early 20th century it had over 600. In 1999 there were over 1200 members, cut down to around 660 by Labour’s reform to remove most hereditaries. But we are now back up at over 750, or over 800 when those on ‘leave of absence’ and the like are taken into account.

Most agree that the House of Lords is too big, so some mechanism to reduce its size is needed. But this will be ultimately pointless unless something is done to reduce the inward flow as well. There is no point creating vacancies just in order that the Prime Minister can fill them up again. Hence there is also need for agreement on a size cap, and a sustainable formula for future appointments.

A key point is that it is not sustainable to try and balance the House as a whole to the result of the previous general election – as we showed in our 2011 report House Full. This would push numbers ever upwards, as each new prime minister tried to rebalance the appointments of the last. It could also cause arguments about legitimacy, if the Lords was fully reflective of how people had recently voted (albeit while remaining appointed) while the Commons was not. All previous serious proposals for Lords reform have suggested that each new group of entrants – whether through election or appointment – should be proportional to general election votes, rather than seeking this across the chamber as a whole. This would remove the risk of huge fluctuations, and allow the size of the chamber to remain in check.

One option discussed with the committee today was the possibility of imposing a size cap (perhaps of the existing 800), and allowing appointment of ‘one in, one out’, so that new appointments were only made as existing peers die. Or better, a maximum size cap, combined with a lower target (of perhaps 650, the size of the House of Commons), alongside a policy of ‘one in, two out’. As around 20 peers die per year, this would allow the Prime Minister (and House of Lords Appointments Commission) to make around 10 appointments annually. It would take many years to reach the target, but it would be far better than what we have now.

Faster progress would require some reduction in existing numbers. This could probably be achieved through voluntary retirements, but only if the parties work together. The difficulty at the moment is that any party peer taking retirement knows that they will weaken their group, and strengthen its opponents. Hence cross-party agreement is needed about what the present party balance should be, and how many members each group needs to shed. In this respect the present moment is a good one, because the two main parties are almost equally balanced in the Lords. This is as good a starting point as any. If each group therefore shed, say, 10% of members through voluntary retirement, the chamber’s size could drop to the 700 mark.

One difficulty with the current situation, as I pointed out to the committee, is that no body has responsibility for monitoring and reporting on membership in the Lords. Even just publishing an annual report on size and party balance, perhaps with projections of how size is likely to change (based on the age of peers) would help to concentrate minds. The House of Lords Appointments Commission would be a good body to take on this task. Ideally, if the parties can agree a proportionality formula for new appointments (which most obviously would be general election vote shares) and a size cap, the Commission could also then invite nominees annually to fill any vacancies that occur.

All of these changes could potentially be achieved on a nonstatutory basis (though formalising permanent retirement, and the Commission’s role, through a bill would be preferable). But for other elements legislation is essential. This applies to the removal of those convicted of criminal offences (on which everybody agrees), and also the ending of the byelections for hereditary peers. The latter is more controversial, but only with a tiny minority of peers. The great majority accept that the byelections do the chamber reputational damage, and should be ended. Ending the byelections will therefore probably require some determination, and a government bill. What task could be better for a reforming Deputy Prime Minister to take on? If Nick Clegg rose to this challenge, he’d be remembered as an architect of successful reform.

Meg Russell’s book The Contemporary House of Lords: Westminster Bicameralism Revived is published next month by Oxford University Press. See here for details.