Lords appointments urgently need reforming: but how?

Meg-Russell

The appointment of new peers last week has pushed the size of the Lords to its greatest since it was last reformed in 1999. Meg Russell highlights the issues behind having such a large and ‘unruly’ Upper House and argues the situation has now reached crisis point. Reform to both allow existing peers to depart and control new appointments is urgently required.

Recent weeks have seen renewed controversy about David Cameron’s appointments to the House of Lords, with announcement of 22 new peers. Various factors have contributed to frustration about these appointments, particularly among those in the Lords itself. First, they came on the back of the controversy about the Lords Leader being downgraded from Cabinet membership in the reshuffle – a matter that remains unresolved. Second, an August announcement during parliamentary recess necessarily arouses suspicion that Number 10 wanted to avoid this matter being debated (in fact 2014 is the second year in a row to follow this pattern – and while announcements in the so-called political ‘silly season’ may dodge parliamentary scrutiny, they probably exacerbate press attention). Third, the fact that several appointees have been major party donors has reignited concerns about ‘cash for peerages’. But the biggest problems are first, the effect that yet more new appointments will have on the size, and therefore the effective functioning, of the House of Lords, and second, the Prime Minister’s ability to manipulate the party balance in the chamber to favour his own side. Until the system is reformed, each new round of appointments is also destined to attract negative news stories that damage the reputation of parliament and that of the Prime Minister.

It is important to begin with some objective facts. The latest set of appointments pushes the size of the Lords to by far its greatest since it was last reformed in 1999, as shown in the graph below:

Source: Figures published by House of Lords information Office (for January each year), updated to August 2014

Source: Figures published by House of Lords information Office (for January each year), updated to August 2014

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The Lords Leader and Cabinet controversies

Meg-Russellrobert_hazell

The Prime Minister has angered peers by appointing Baroness Stowell as Leader of the House of Lords without appointing her to the Cabinet. In a scathing debate last Monday David Cameron was criticised for diminishing the status of the Lords Leader, and thus the chamber itself. Meg Russell and Robert Hazell highlight that the row, and the proposed solutions, point to wider uncertainties about the size of Cabinet and status of Cabinet ministers.

The current controversy began on 15 July with the Cabinet reshuffle, when the previous Lords Leader (Lord Hill of Oareford) was nominated as Britain’s next EU Commissioner. This vacancy was to be taken by Baroness Stowell. But while Lord Hill had been a Cabinet member, it soon emerged that Baroness Stowell would not be; instead she would join the ranks of ministers merely ‘attending’ Cabinet. Following criticism that a male Lords Leader was being replaced by a female one at a reduced level of pay, the Prime Minister offered to top up her salary to the level of a Cabinet minister from Conservative Party funds. Baroness Stowell showed her mettle by publicly rejecting this offer. On the day after the reshuffle peers had made it clear (from col. 594) that they considered it inappropriate for a minister formally representing the whole House of Lords to be part-paid by one political party.

The most fundamental principle at stake concerns the representation of the House of Lords at Cabinet level. This is the first time the chamber has had no representation among full members of Cabinet. In a quick report issued on 25 July, the Lords Constitution Committee commented that all previous Leaders of the House of Lords have had Cabinet rank. But the nature of the change goes far further. The position of Lords Leader dates only to 1846, when Lord John Russell became Prime Minister in the Commons. Before this Prime Ministers had more commonly been drawn from the Lords. It was also common until the 19th century for a majority of Cabinet members to be peers. This subsequently declined, but Lords representation had always been guaranteed by presence of the Lord Chancellor: a centuries-old post held consistently by a peer until reform in 2005. Hence until nine years ago the Lords effectively had two guaranteed seats in Cabinet. Suddenly it has none.

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Defining the office of Prime Minister

The British Prime Minister has extensive and growing powers, yet the role is ill-defined in UK constitutional documents. Graham Allen argues in favour of clarifying the role of the Prime Minister. He also suggests it should become a directly elected office, to ensure that it is properly answerable to the UK public.

It is symptomatic of the British constitution that the more important something is, the more vaguely defined it is, and the harder it is to make it democratically accountable.

This principle certainly applies to the office of Prime Minister.

We do not know for certain when it came into existence. Historians tell us that the most important person in this process was Sir Robert Walpole, in the early eighteenth century. His reputation for corruption hardly makes for the most auspicious beginning for any great institution of state. Anyway, he did not actually officially create anything and always denied that he was a ‘Prime Minister’. The fact is that the most important job in British government has come about over a long period of three hundred years without anyone ever knowing precisely what it was; and without Parliament or the public ever having been consulted about it.

The House of Commons select committee of which I am the elected chair, the Political and Constitutional Reform Committee, has been looking at the office of Prime Minister for a number of years now, and we recently published a report on the subject. One of the surprising things we learned when investigating the subject was how little formal definition there is, even today, of the office of Prime Minister. The most that can be found is a few lines in a document published in 2011, The Cabinet Manual. Yet this text is – as the name suggests – an operational guide for government, aimed mainly at officials and ministers. It is not a full public definition of the prime-ministership, nor does it have proper legal force.

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Pressures are growing for Commons bill committee reform

In June 2013 the Constitution Unit published Fitting the Bill: Bringing Commons Legislation Committees into Line with Best Practice, proposing a series of changes to Commons bill committees. Last week the issue was brought back into the headlines, as John Bercow emphasised the need for reform.

Last Monday at a lecture for the Study of Parliament Group, the Commons Speaker John Bercow suggested that reform of Commons public bill committees is overdue. His remarks closely chimed with proposals made in a Constitution Unit report published last year (and summarised here). With the end of the current parliament fast approaching, this topic should be high on the agenda for those planning for the parliament of 2015.

Bercow’s lecture commemorated Michael Ryle, who together with the late Sir Bernard Crick founded the SPG in 1964. One of the key proposals coming from Crick (and the Group in its early years) was the establishment of permanent specialist committees for the Commons. This led to the creation of today’s select committee system. But as we summarised in our report reformers originally wanted the committees to deal with government bills as well as general inquiries. This failed to happen, and legislative scrutiny remained in the hands of temporary non-specialist committees. Since then the reputation of the select committees has steadily grown, while the reputation of bill committees has generally been poor. Especially since the reforms recommended by the Wright committee were implemented in 2010, the gap between the two types of Commons committees has grown.

This gap is graphically illustrated by another event of the past few weeks – the election of Conservative backbencher Sarah Wollaston as chair of the Commons Health Select Committee (commented on here). Wollaston is a former GP, elected to the role by fellow MPs under the system facilitated by the Wright committee. Before this system came into force, select committee members were controversially chosen by party whips (albeit with some oversight by the Commons chamber). This could lead to MPs considered too independent-minded (sometimes including subject experts) being kept off. But the old whip-based system still applies to the public bill committees, and its most controversial use in the 2010 parliament applied to Wollaston herself. She had sought appointment to the committee considering the coalition’s Health and Social Care bill, but was kept off – which attracted significant media attention and criticism of parliament. Her treatment under the two systems could not be more starkly different. The (elected) select committee system valued expertise; the (appointed) public bill committee system did the reverse.

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Concerns about the Steel/Byles Lords reform bill: a summary

David Steel’s Lords reform bill (previously sponsored in the Commons by Dan Byles) had its second reading in the chamber on Friday. Last night the Constitution Unit and Constitution Society jointly hosted a meeting in the Lords to discuss concerns about the bill. Its main provisions – allowing peers to retire, and for the expulsion of serious criminals – have been widely welcomed. But concerns have been raised about the detail, and possible unintended consequences, by the Unit’s Meg Russell and various others (in addition to the links below, see here). The meeting was addressed by David Steel and Meg Russell, and chaired by Ruth Fox of the Hansard Society. The text below is an edited version of Meg Russell’s speech, summarising her concerns.

Audio recording of Dr Meg Russell’s speech and Lord Steel’s response from the event held on 1st April 2014

I should start by saying that I regret that this discussion is happening for two reasons. First, because I have become a proponent of incremental Lords reform. As I have frequently written and said, including in my book last year, history tells us that large-scale Lords reform invariably fails, but that incremental changes can both succeed, and be important. I have also emphasised how urgent it is to get on with the next, small steps. Second, because I am an admirer of David Steel – in part, obviously, for his tenacity on this issue. So I have no desire to make his life, or his task, more difficult.

Nonetheless, I have very real concerns about the likely unintended consequences of his bill. I wholeheartedly welcome the opportunity for peers to retire, and the expulsion of criminals. But my concern is with clause 4, subsection 5 of the bill, which reads (in the context of a section titled “Effect of ceasing to be a member”):

If the person is a peer other than a hereditary peer, the person is not, by virtue of that peerage, disqualified for—

(a) voting at elections to the House of Commons [so far so good…], or

(b) being, or being elected as, a member of that House.

My concern, in short, is that the Lords will become a training ground for future members of the Commons. This change will be inadvertent, at least on David’s part, and may be gradual, but I believe it is a virtual certainty.

It has not been comfortable to step in and raise these problems. I am very aware of the timing difficulties, this being a private member’s bill, now nearing the end of the session. I thought carefully whether I should raise the concerns at all. But my work for the last 16 years has included providing objective, evidence-based advice about the prospects for Lords reform, and crucially its detailed implementation. So it would seem a dereliction of duty not to explain what the evidence suggests about David’s bill. I have no vested interest whatsoever in expressing these concerns. My sole motivation is that I think them serious and important. It is a basic principle of good policy-making, usually adhered to in the Lords, that people should take decisions carefully, in the light of the available evidence.

So I would like to present five bits of evidence that indicate a problem. I will then briefly say a word about timing, then try to end more constructively, on what can be done.

The first bit of evidence relates to the consequences of the 1999 reform. I have written extensively about this, and how it strengthened the Lords by making it a more confident and assertive institution. But few people predicted such an outcome. I hardly think Tony Blair, in legislating to remove most hereditary peers, envisaged that the new chamber, stripped of hundreds of Conservative legislators, would make it harder to get his policy through. Indeed, he almost certainly believed the reverse, as did many commentators at the time. So the first lesson is that reform can have major unintended consequences, even when quite clever people have tried to think it through.

The second bit of evidence is related. As my book describes, that reform had immediate consequences, in terms of party balance, and thereby assertiveness; but it had equally important longer-term effects, in changing the types of people appointed. And this is the central problem with David’s bill. No one suggests that lots of peers are poised to jump ship and run for the Commons. After all, current members took their peerages knowing they would be barred from standing for election. The real difference comes in those appointed after the bill has passed. Party leaders will no longer have to rule out those who might consider a future Commons career, and when such people are offered peerages they will not need to rule themselves out, either. They might try the Lords for a few years, get a taste of parliament, and then run for the Commons. It could certainly suit party leaders to appoint such people, who would be more controllable than current peers. But it would clearly change the Lords fundamentally, bringing in more political point-scoring, local campaigning, and so on. As I say, the 1999 reform has already changed the type of people appointed, with fewer party grandees and far more emphasis on active service. So in some ways this could even seem a natural next step.

Some people suggest that these projections are far-fetched. But the third bit of evidence, about the profile of today’s party peers, suggests otherwise. Around 30% of them are former MPs. An additional 30% have stood for the Commons sometime in the past. So 60% of party peers have at one time fancied a Commons career. The crucial point is that they now have to renounce such ambitions before entering in the Lords. Under David’s bill, that would cease.

The fourth bit of evidence relates to other parliaments. Our centuries-old tradition is that political careers can start in the Commons and move to the Lords, but not the other way around. Some countries are not so fortunate. The key example is Ireland, where respected political scientist Michael Laver describes the Senate as ‘a convenient berth for political hopefuls on the way up (or down) or for those who consider themselves to be “resting” from the Dáil following what they hope will be a temporary election setback’. Irish MPs who lose their seats can use a place in the Senate to retain an income and public profile, while nursing a constituency to run again. As Laver says ‘It gives the impression of the Senate as a kind of political second division, to which fading stars can be relegated and from which rising talent can be promoted’. This feeds public cynicism about the Senate, and reduces its effectiveness.

The fifth bit of evidence is more concerned with how these other points have previously been viewed. To avoid such problems occurring in the UK, the Royal Commission on House of Lords Reform recommended a 10 year cooling off period before those departing the Lords could run for the Commons. This basic principle was later reiterated by the Commons Public Administration Committee, by a cross-party group of senior MPs co-ordinated by Paul Tyler, and crucially by the government. So the 2007 White Paper stated that ‘To counteract the possibility of members using the House of Lords to build a political base, members who have held a seat in the House of Lords should be prevented from seeking election to the House of Commons for [5 years] after their Lords’ term expires’. Nick Clegg’s 2011 White Paper said something very similar. His bill included a four year cooling off period. David’s bill, of course, does not.

Turning to timing, it is doubtless troublesome to raise these concerns now. But they have been raised consistently ever since it became clear this bill might actually reach the statute book. The lack of a cooling off clause was one of the main objections at Commons second reading in October, and the bill’s then sponsor Dan Byles responded that ‘we could consider whether some small amendment might be made in committee’ to resolve the problem. When I myself spoke in early January to one of the bill’s main organisers, Philip Norton, he indicated that a committee stage amendment was coming. It did not. I and others then raised the concern before Commons report. Ministers clearly considered an amendment, but for some reason decided against. By then the bill’s supporters had come down against the idea. I am genuinely mystified why. To me this was a very unfortunate error.

But we are where we are, so what can be done?

As I have pressed throughout, and former Royal Commission members have echoed, the only sure solution is an amendment inserting a cooling off period, as appeared in the Clegg bill. By now the only realistic means of achieving this is probably for David to move an amendment with government support. But it is clear that he does not want to. In terms of whether an amendment would kill the bill, this is debatable. In short, if the government wants the bill enough it can happen. Only a tiny corner of Commons time would be needed to put it through in amended form.

But if not an amendment, some have sought government assurances that the new patronage powers in the bill will not be used opportunistically by party leaders, and that if they are, further legislation will follow. This was the clear position of the Lords Constitution Committee. It was pressed during the bill’s second reading in the Lords on Friday by former Appointments Commission chair Lord Jay, supported by Baroness Hayman, and also by Lord Haskel. Any assurances are clearly unenforceable, but even what was offered at the end of the debate was very weak. Lord Hill simply said that ‘were that to become a problem in the future, we would want to review the situation. There is always an option to legislate to sort it out’. Yes, of course there is always an option. But would it be used? The assurances from Labour were even weaker.

Another viable solution would be empowering the Appointments Commission to vet party peers. Unlike Crossbench candidates, party nominees are not interviewed by the Commission about their commitment to the Lords, and it can only reject them on grounds of propriety, not suitability. So John MacGregor, who dismissed these concerns on Friday, was wrong to suggest that ‘The Appointments Commission would obviously be asking questions’ of such candidates. It has no power to do so. Lord Norton, speaking via Patrick Cormack, suggested that ‘It could be brought within the remit of the Appointments Commission, in examining every nominee of a party leader’. I agree that this would help sort out the problem, and indeed have argued for years that regulating appointments is far the most urgent small-scale Lords reform. But where are the assurances on this? We have had precisely none.

David said in his opening speech in the debate on Friday that he believed concerns from myself and others on this matter were “somewhat fanciful”. I hope I have demonstrated that this is not the case: these concerns are not frivolous, they have been expressed for years, and by very serious people. But if we are to trade adjectives, I think the ones I would use to describe what the bill’s promoters are doing might include “overoptimistic”, “ risky”, or perhaps even “reckless”. There is a real danger that in seeking a short-term gain for the Lords today, peers leave bigger long-term problems for their institution. That is clearly not what I want to happen, and it’s also not what I want David to be remembered for. So even at this late stage I hope that a more convincing solution can be found.

Does Commons “financial privilege” on Lords amendments need reform?

During its initial passage through the House of Lords in 2011-12, the government suffered seven defeats on amendments to the Welfare Reform Bill. The defeats concerned highly contentious policies, including changes to housing support (the “bedroom tax”), the introduction of a benefit cap, disability benefits, and the reform of the child maintenance system. When the bill returned to the Commons, MPs overturned all seven defeats and asserted their “financial privilege” (or primacy over tax and spending matters). It was argued that, by convention, the Lords could not then insist on its changes. The episode revealed significant confusion about the process, and led to claims that the government had abused parliamentary procedure to avoid unwelcome scrutiny of its policies.

Even to seasoned observers of parliament, financial privilege may be something of a mystery. To shed light on it, Meg Russell and I conducted a research project into the operation of financial privilege between 1974 and 2013, funded by the Nuffield Foundation. The aim of our research was twofold: to clarify how financial privilege works in practice; and to consider whether arrangements in Westminster should be reformed. Yesterday we published our conclusions in Demystifying Financial Privilege, and launched these at an event in parliament, with responses from well-respected Crossbencher and senior barrister Lord Pannick, and former first parliamentary counsel Sir Stephen Laws.

One major complaint voiced is that the government controls financial privilege for its own political purposes. In reality, ministers have far less involvement than is sometimes assumed. When Lords amendments are received by the Commons, an impartial clerk first identifies whether any have tax or spending implications (or “engage” financial privilege). Government officials will often argue their case – which, as we identify in the report, is a potential problem – but it is ultimately for the clerk to make a decision based on precedent. The next step is for MPs to decide what to do with each amendment. They have three broad choices: if they agree it, financial privilege is automatically “waived”; if they make an alternative proposal (eg an amendment in lieu), financial privilege does not arise; and if they reject the amendment outright, financial privilege is “invoked”. Although the government usually determines the Commons’ choice (by virtue of its majority), it does not determine whether privilege was engaged on the amendment in the first place.

A second complaint, particularly made since 2010, is that financial privilege is being used in a way that it wasn’t in the past. Financial privilege is certainly not a new innovation: it is one element of the Commons’ “financial primacy” over the Lords, a principle that dates back centuries and was formalised in the late 17th century. The Commons claimed financial privilege on Lords amendments throughout the period we studied (160 amendments, 1974-2013), with the highest absolute number (36) in the 1974-79 parliament. However, in 2010-13 the Commons asserted financial privilege in response to a particularly high proportion of Lords defeats: 24%, compared to just 6% in 2005-10. But this change did not result from privilege being interpreted more broadly than before (although we do identify the possibility of “creep” over a longer period); instead, the key political battlegrounds are now over spending matters, which means that a higher proportion of Lords defeats engage financial privilege.

An important complaint is that the financial privilege process lacks transparency. At present there are no clear definitions as to what falls within Commons financial privilege. And once privilege has been invoked on an amendment, the Commons gives no explanation as to why. Such lack of transparency makes it difficult for peers to anticipate whether financial privilege will be applied to their amendments, and has fed perceptions outside parliament that the process is being abused. There is also some lack of transparency about how the Lords may respond when faced by a claim of Commons financial privilege. Notably, some overseas legislatures manage arrangements better in this respect: in Australia, statements are published explaining how and why an amendment is judged to be financial, while in Canada statements have specified the costs involved.

It seems clear to us that existing arrangements surrounding financial privilege are unsatisfactory, and that more could be done in particular to improve transparency. Both Houses (especially the Commons) should consider how clearer information could be provided about financial privilege, for example by expanding the text on the parliament website. We believe it is reasonable for peers to be given an explanation of why their amendments engage privilege, including an indication of the amount of money involved. Most importantly, the Commons should publish a clear definition of what types of amendment it considers to be covered by privilege. The Lords should also make clearer in its own guide to procedure its interpretation of how the Lords may respond to the Commons’ claim of financial privilege.

Commenting on the report at the launch event, Lord Pannick (who has experienced his own amendments being rejected on financial privilege grounds, without clear reasons) said “the Constitution Unit, Meg Russell and Daniel Gover have done a very great service in identifying the principles of financial privilege” and said that the report was “particularly persuasive” with respect to transparency. He concluded saying “I hope the report will encourage the Commons’ authorities to look again at their procedures. At the moment, the procedures are indefensible”.

Ultimately, however, our report notes that arrangements around financial privilege rest entirely on convention, and (contrary to some claims) there are currently no absolute restrictions on how the Lords may respond. All parties – and especially the government, when determining how the Commons responds to Lords amendments – should thus exercise caution, to ensure that tensions are not inflamed too far.

The Byles/Steel bill – unless amended – holds grave dangers for the Lords

On Friday 28 February Dan Byles’ Private Member’s Bill on Lords reform completed its Commons passage. It is now in the Lords, and will be sponsored by David Steel. The bill, which allows retirement from the Lords and expulsion of non-attendees and serious criminals, has been presented as a small, uncontroversial “housekeeping” measure. But as already argued in an earlier blog post, as currently drafted it would in fact introduce a very major change that would alter the Lords fundamentally, and in very undesirable ways.

I will not repeat the basic arguments in my earlier post, which is still available to read (see here). But it urged an amendment at Commons report stage, to ensure that those allowed to depart the Lords (through retirement or expulsion for non-attendance) cannot immediately run for the House of Commons. Such calls were made throughout the bill’s Commons passage, but have been resisted by ministers. This is both puzzling and very worrying. It is puzzling because a ‘cooling off’ period before those departing the Lords could run for the Commons has been included in numerous earlier proposals, from the Wakeham Royal Commission to the Clegg bill (both of which are quoted in my previous post). It is worrying for reasons that I will now spell out, somewhat more forcefully than before. In the rest of this post I summarise the problem, reflect on what the Lords should do, and end on responses to some points that have been made against the change that I propose – all of them unconvincing.

The bill as drafted (clause 4(5)(b)) explicitly allows departing Lords members to run for the Commons. The problem that this creates applies not to existing peers, who presumably gave up any Commons ambitions when accepting their life peerage. It relates instead to new members appointed after the bill has passed. One of the weaknesses of the debates to date (on which more below) is that they have focused too narrowly on the likely short-term effects, in terms of how many current peers may depart – and insufficiently on the long-term effects, in terms of future appointments. But while there may be small, short-term gains through allowing a few peers to retire, the effects of the bill in the longer term would be far larger, and potentially extremely damaging to the Lords.

To illustrate, let us consider three possible candidates for the Lords once the bill has passed:

  • Candidate A has served two terms as an MP, and is appointed to the Lords in 2015 after narrowly losing his seat. He badly wants to regain his constituency, and spends much of the next five years working there, maintaining a constituency office and regularly campaigning door-to-door.
  • Candidate B has fought several Commons seats unsuccessfully in the past, and after missing out again in 2015 is rewarded with a seat in the Lords. But she still yearns after a Commons career, so seeks reselection as soon as possible, and uses the Lords to try and raise her local profile above that of the incumbent local MP.
  • Candidate C is appointed to the Lords in 2015 after many years working as an adviser to his party leader. From there he starts looking for a Commons constituency, and uses Lords speeches primarily to broadcast his suitability as a future MP, and maybe even a future leader.

Candidates A, B and C are not so very different to many who have been appointed to the Lords in the past – indeed, around 60% of current party peers are either former parliamentary candidates or MPs. The key difference is that such people currently have to weigh up carefully whether they still want a Commons career. Those in doubt will turn down any offer of a peerage; those accepting one will set other ambitions aside. I do not see candidates A, B and C as bad people who are doing anything underhand or inappropriate; it is understandable that they should see the Lords as a useful temporary resting place. Nor would their party leaders be acting improperly; indeed, it is easy to see how and why leaders would embrace these new patronage powers. The point is that the bill as it stands fundamentally changes the calculus both for those offered seats in the Lords, and for those doing the appointing. Unless the route from Lords to Commons is explicitly ruled out, people will understandably conclude that it is fine to use it. If the bill passes in its current form, please have no doubt: these changes are certain to occur.

It should hopefully already be clear what effect this would have on the Lords. Many members would become far more preoccupied with constituency business and campaigning than with parliamentary scrutiny work; many would watch far more carefully what they said, in order to appeal to the media, local voters and their party leaders; in seeking to make Lords debates more eye-catching, they would make those debates more politicised. In addition, many members would become short-term occupants of the Lords, staying only a few years before another career could be developed – with a consequent loss of long-term thinking. Should this be considered fanciful, look (as set out at greater length in my previous post) at Ireland, and more recently Canada. In Ireland chamber-hopping is absolutely the norm, and Senators (despite not being directly elected) spend much of their time on local campaigning work. Only last month I acted as an adviser to the Irish Constitutional Convention, where this problem with their parliament was much lamented.

The Byles bill has been presented as a small “tidying up” measure, but these changes would be fundamental, and major. For hundreds of years (with a couple of exceptions, discussed below) members have been able to move from Commons to Lords but not the other way around. The bill would thus change centuries of British tradition, and the consequences need very careful thinking through. It could be argued to the bill effectively ends life peerages in all but name: allowing members to depart the chamber when they wish, at any age and after any period of service. But members can de facto already do this if they really wish, simply by ceasing to turn up. The one thing that they cannot do is run for the Commons. Perhaps some see advantages in changing these historic arrangements; but if so they should make a positive case for change, out in the open, and subject to proper scrutiny. This has absolutely not happened so far.

During the passage of the Byles bill through the Commons, concerns about these matters were raised repeatedly, particularly by Conservative backbencher Jacob Rees-Mogg. In response, at second reading last October Dan Byles said that, “That is the sort of detail that I would be more than happy to discuss… and we could consider whether some small amendment might be made in Committee” (col. 1005). When a ‘cooling off’ period was specifically suggested, so that departing peers had to wait several years before running for the Commons (as was provided in clause 41 of the Clegg bill), Byles said that “I would be interested to look into whether a time bar solution could be achieved” (col. 1055). Hence it was reasonable to assume that the problem would be resolved by government-backed amendments at committee stage – but it was not. At report stage last week the concerns were repeated. Rees-Mogg proposed amendments (particularly amendment 21) to deal with them, arguing that it was “fundamentally undesirable” (col. 558) for the Lords to become a base for aspirant MPs. Dan Byles responded that “we all agree that we would not want the House of Lords to become a training ground for a seat in the House of Commons” (col. 560). Stephen Twigg, speaking for the opposition frontbench, described this as “a serious issue” and “a risk” (col. 561). The minister likewise said that “We do not want to see the House of Lords become a nursery for the Commons where young hopefuls start their careers” and claimed to “fully understand” the concerns expressed (col. 562). Nonetheless no amendment was made. Despite pressures both behind-the-scenes and in the chamber, ministers had resisted changes to resolve the problem.

These developments demonstrate in part the weakness of the private members’ bill process. The bill had its second reading and report stage on ill-attended Fridays, with little media attention. Its sole committee session lasted a mere 38 minutes. There was no pre-legislative scrutiny, no call for evidence, no opportunity for witnesses to appear, and consequently no outside group engagement. The limited time available also led to great resistance to amendments. This was worse for the Byles bill for most PMBs, due to fears that any Commons amendments would make its Lords passage more difficult. Those in the Commons were warned to stick rigidly to the contents of David Steel’s previous bill on the topic, which had passed the Lords in 2012-13. Steel’s bill had also failed to include a ‘cooling off’ period, but it was a similarly fragile creature, with fears at the time that any amendments would derail it. Yet everyone knew that its prime purpose was as a spur to government action; and once government gets involved, Private Members’ Bills inevitably get tidied up. Now, however, the original Steel bill is being treated as a kind of revered text, which cannot be altered. The deafness to argument which is occurring over this bill is a classic recipe for bad policy-making, and even for policy disaster. On such an important matter it is essential for reasoned amendments to be properly debated and considered.

So the Lords is now left in a dreadful position. Typically when a bill leaves the Commons with outstanding problems, the Lords provides the forum for them to be carefully discussed and sorted out. It would be a terrible irony if this norm was broken with respect to a policy that concerns – and indeed threatens – the House of Lords itself. But the government claims that any Lords amendments will kill the bill, due to lack of time for these to be considered in the Commons. I am reliably advised by Commons clerks that this is not actually true – while there are no Private Member’s Bill Fridays left, several tricks could be used to get necessary Lords amendments through the Commons by May if the government wants the bill. The Lords therefore should carefully consider possible amendments to deal with the problem.

Options include:

  • Inserting clause 41 of Nick Clegg’s bill of 2012, which would require a ‘cooling off’ period of 4 years (which could be amended to a longer period). This seems the preferable and least contentious solution.
  • Simply removing subclause 4(5)(b), which provides that those departing the Lords are not disqualified from “being, or being elected as, a member of that House [i.e. the House of Commons]“. This would retain the current absolute bar on future candidacies – which probably goes too far, and could create legal uncertainty.
  • Restricting retirement provisions to current peers, not new entrants. Also problematic, as pressures for retirement would recur and require further legislation. Would also need to apply to provisions for expulsion by non-attendance, otherwise this creates a loophole.
  • Restricting these same provisions to those aged over 65 (as was suggested by Jacob Rees-Mogg’s unsuccessful amendment 3 at Commons report stage for the first of the provisions). This too would be a reasonable long-term solution.

Any of these amendments would resolve a weakness highlighted by MPs and therefore be unlikely to face Commons opposition. If the Lords does amend the bill, and the government does not deploy the tactics available to get it through the Commons, it is ministers not peers who would be culpable for killing the bill. If the bill is not amended in one of these ways, my reluctant advice to peers would be to resist it.

It pains me greatly to have to suggest this latter outcome, even as a possibility. I have long argued for the next small steps on Lords reform, both publicly (e.g. here and here) and behind-the-scenes. Allowing retirement would clearly be a beneficial next step. But a conspiracy of silence to get a flawed version of retirement onto the statute book is clearly a bad idea, and the threats in the bill as it stands are far too great. I began research in this area 16 years ago precisely in order to offer objective, evidence-based advice on Lords reform. That evidence tells me that any gain from the bill as is will be relatively small, while its long-term consequences will be huge and negative. Opening up a direct route from Lords to Commons, which has been closed for centuries, would be a major constitutional and political change. If this bill is truly about “housekeeping”, then using one of the amendments above to maintain something similar to the status quo is essential.

Postscript
Finally (in a post which is already far too long) the really committed may want to hear some of the arguments which have been made against the ‘cooling off’ period, and why I believe that they are wrong:

Argument 1: Peers have been able to leave the Lords and run for the Commons before, under the 1963 and 1999 Acts.
Response: these changes occurred in very different circumstances, and only ever extended to those who had inherited their seats in the Lords (i.e. entered by accident of birth) not those who had themselves been appointed. Hereditary peers of “first creation” were not covered by the 1963 Act, while the 1999 Act was a one-off exodus. Neither implied any change to the type of people appointed.

Argument 2: The ‘cooling off’ period proposed in other packages has been in the context of election to the second chamber, not appointment.
Response: This is simply untrue. The Wakeham Royal Commission (as quoted in my previous post) was particularly strong on this point, despite proposing a largely appointed house.

Argument 3: Once in the pleasant environment of the Lords, few people will feel motivated to depart for the Commons.
Response: I believe that this argument is naive, and too influenced by feelings among some current peers. It is important to remember that those now in the Lords have – by definition – renounced the option of a future Commons career. But the bill allows people who feel very differently to be appointed, and their party leaders will be tempted to do so. It is undeniable that a Commons career remains a desirable to many people active in politics, for example promising a salary, access to senior ministers, and a chance at a cabinet career. Indeed a majority of current party peers have run (successfully or unsuccessfully) for the Commons in the past.

Argument 4: Introducing a cooling off period would deny democratic rights to people to run for the Commons.
Response: In fact, a bill with a cooling off period (of say 4, 5 or 10 years) would significantly increase freedoms beyond what they are now. Life peers have been barred since 1958 from running for the Commons (and likewise, aside from exception 1 above, this has always applied to hereditary peers). Few have complained about this restriction.

Argument 5: There is no time in the Lords to consider amendments, given that the second reading is occurring so late (28 March).
Response: It is very unfortunate that the sponsors of the bill chose a late second reading date, seemingly to procedurally block the opportunity for amendments. The Companion to Standing Orders does set down minimum time periods between stages (e.g. 14 days between second reading and committee stage), but these are only ‘recommended’, and it is not unusual for them to be breached by agreement of the usual channels. If an amendment is put down, a committee stage will be required to debate it, and one can be provided.

Argument 6: It would be better to get this bill through, and if a problem occurs to then legislate to correct it afterwards.
Response: This is a very dangerous suggestion. Once the legislation is on the statute book there is absolutely no guarantee that it can be changed. A “corrective” PMB in the next session could easily die, or indeed be blocked by ministers. Then once the route from Lords to Commons has been opened post-2015, it would probably prove impossible close it again: such legislation would appear critical of particular individuals who have taken this route, or of their party leaders; party leaders will anyway by then have adjusted to the enhanced patronage that the bill provides. Far better not to take the risk – even if this means waiting for a better safeguarded retirement provision in a future bill.

The Byles bill on Lords reform is important: but needs amending if it’s not to damage the Lords

Lords reform is an ever-running saga. Generally there is no shortage of proposals, but few concrete opportunities for change occur. Throughout the Labour years, after the removal of the hereditary peers in 1999, numerous white papers set out future options, but none put into the shape of a bill. The Coalition did publish a bill, but this was withdrawn following Commons opposition in 2012. Now there is at last a real chance of change: a private member’s bill from Conservative backbencher Dan Byles, which completed its Commons committee stage in January. This has its Commons report stage on 28 February before heading to the Lords.

The Byles bill is not ambitious, but is important. It includes two key provisions, both of which are essentially unarguable, and long overdue: the barring of serious criminals from holding seats in the Lords, and the ability of Lords members to permanently retire. These changes don’t go far enough, admittedly. But they are important next steps on the road to reform. As I chronicle in my book, Lords reform has only ever been achieved through small, incremental steps. While each (e.g. in 1911, 1958 and 1999) was at the time considered small and inadequate, in retrospect such changes were important. A recent report by the Commons Political and Constitutional Reform Committee recognised this truth, and backed the provisions in the Byles bill as sensible.

The government has now put its weight behind the bill, as has the official opposition. There is thus a real chance that it will become law before the end of this session. But it has one key shortcoming, which I had assumed would be addressed during the ‘tidying up’ at committee stage. But it wasn’t. This makes an amendment at Commons report stage is essential, or the Lords could be seriously and inadvertently damaged. Given the timing, this is an urgent matter.

In all of the many proposals that made for Lords reform in recent years, there has been common consent that once the chamber’s members become free to depart, they should not immediately be able to stand for the Commons. Under present arrangements this is not a problem: peers serve for life, and are ineligible to stand (or vote) for the Commons. But changing matters so that a “life peerage” is no longer a life sentence – which is itself welcome – raises the question of what these members should be able to do when they depart. Great consideration was given to this question by the Royal Commission on Lords reform chaired by Lord Wakeham which reported in 2000. It concluded (paragraph 12.21) that:

“[g]iven the kind of membership we wish the second chamber to attract… [w]ould-be career politicians should not be encouraged to see membership of the second chamber as a springboard to membership of the Commons. We recommend, therefore, that members of the second chamber should not be eligible for election to the House of Commons for 10 years following the expiry of their term of membership”.

This principle was subsequently taken up by the House of Commons Public Administration Committee (paragraph 126), a cross-party group of MPs calling for reform (page 38), and the government (paragraph 9.35). The only difference in these proposals was over the length of the “quarantine” period, which varied from 5-10 years. Most recently the coalition’s 2012 bill incorporated the principle, as its clause 41:

Restriction on former members being elected as MPs
(1)A former member of the House of Lords is disqualified from being elected to the House of Commons at an election if the day of the poll is in the disqualification period.
(2)The disqualification period is the period of 4 years and 1 month beginning with the day on which the person ceased to be a member of the House of Lords.
(3)This section does not apply in relation to membership of the House of Lords as a Lord Spiritual.

The four-year period provided here was shorter than those previously suggested, but the principle was clearly recognised. It is therefore strange that when the Byles bill was amended in committee, with amendments clearly approved by the government, this provision was not included as part of the ‘tidying up’. We can speculate why, but it may have been simple oversight.

Why does this matter? Would it be so disastrous to allow members of the Lords to depart and be able to run for the Commons straightaway? I argue that it would. To illustrate, we need look no further than other countries, as illustrated in my first book, and more recently a chapter for the Constitution Society.

In the UK we are accustomed to the Lords being the ‘senior’ chamber, in terms of age and experience, if not in terms of power. The presence of mature people, with a degree of independence from the political parties, is one of the key things that the public values about the Lords. And this ‘senior’ tendency is commonly associated with second chambers: indeed it is why many of them are titled ‘Senate’. But some senates have instead become training grounds for aspiring MPs, meaning that their members are often younger and less experienced, and focused on winning a lower house seat. Ireland is the prime example: in the recent 2011 general election, no fewer than 21 senators out of 60 sought election to the Dail. In the election of 1997, 16 senators departed the chamber to take up lower house seats. The Senate also serves as a temporary resting place for MPs who have lost their seats, until they can contest them again. This changes the dynamic between the chambers fundamentally.

In Canada, where the Senate is appointed, a similar unhealthy pattern is developing. Under Prime Minister Stephen Harper, several members have been appointed to the Senate, only to quit their seats and stand for the House of Commons, then be reappointed as senators if they lose. Witness this description of Fabian Manning:

From 2006 to 2008 he was the Conservative Party of Canada Member of Parliament for the riding of Avalon. After his defeat in the 2008 federal election Manning was appointed to the Canadian Senate on January 2, 2009. He resigned his Senate seat on March 28, 2011, to run for election in his former riding of Avalon in the 2011 federal election, but was unsuccessful. Prime Minister Stephen Harper re-appointed Mr Manning to the Senate on May 25, 2011.

The description of his co-partisan, Larry Smith is similar.

Allowing such chamber-hopping may not be the intention of the government, or of Dan Byles. The Byles bill does at least rule out reappointment to the Lords for a second time. But unless it is amended it could inadvertently allow a similar culture to develop here. There may already be a handful of peers who would like to stand for the Commons (though one would hope not, since they have accepted a peerage for life). But the problem comes particularly with respect to the newly-appointed after the passage of the bill. New Lords arrivals would no longer be taking a position for life, but one that they could freely choose to depart from after a few years. Defeated MPs could take a temporary respite in the Lords, before seeking to win their seats again. It would also be very tempting for party leaders to appoint new young aspirants to the Lords to cut their teeth, before encouraging them to run for a seat in the Commons. The immediate effects of such changes would be threefold. First, more younger members – itself perhaps not such a bad thing.  But second, far closer adherence to the party whip in the Lords, with members ‘watching their back’ so as not to jeopardise a future Commons career. And third, members of the Lords nursing Commons constituencies, in preparation for a future candidacy: much to the cost of their Lords work, and the irritation of MPs.

I’m not suggesting that these changes would occur immediately. As was seen post-1999, it takes time for the culture of appointments to develop in response to a reform. But it nonetheless it will change gradually. Developments since the 1999 reform have been largely positive: appointment of more active members, a more diverse membership, and members with greater confidence to challenge the Commons. The culture change brought about by the Byles bill, unless it is amended, could be far more problematic.

It is not too late for something to be done about this, and for the bill still to reach the statute book in better form. All that is required is for the clause from the coalition’s 2012 bill (reproduced in full above), to be moved and agreed at Commons report stage on 28 February. It is hard to see how the government can object to this, given that it is taken from their own bill. I sincerely hope that politicians in the Commons will heed this call – and that those who care about the Lords will press them to do so. An amendment to the bill in the Lords is also a possibility, but given the limited time for private members’ bills could have the effect of killing the Byles bill off. I very much hope that this will not happen – but I’m afraid to say it could prove preferable to passing the bill into law as it is.

Dr Meg Russell is Deputy Director of the Constitution Unit, and author of The Contemporary House of Lords: Westminster Bicameralism Revived (Oxford University Press, 2013).

A Code of Constitutional Standards

The Constitution Unit of University College London is today publishing a report which sets out a code of constitutional standards based on the reports of the House of Lords Select Committee on the Constitution. Since 2001 the Committee has made many recommendations in its reports, and the goal of this report was to codify these recommendations in order to make the Committee’s analysis of the constitution more accessible. The report, by Robert Hazell, Dawn Oliver and myself, contains a code of 126 constitutional standards, each of which is relevant to the legislative process, and each of which has been extracted from the 149 reports of the Constitution Committee that were reviewed. The standards are organised into five sections: the rule of law; delegated powers, delegated legislation and Henry VIII clauses; the separation of powers; individual rights; and parliamentary procedure.

The Constitution Committee’s formal terms of reference were set by the House of Lords Liaison Committee when it was established in 2001 and have not changed since then: ‘to examine the constitutional implications of all public Bills coming before the House; and to keep under review the operation of the constitution’. The Constitution Committee decided against drawing up a formalised code of constitutional norms in their first report to inform their bill scrutiny, instead the Committee adopted a pragmatic approach. The Committee identifies the norms that are relevant to each particular bill or inquiry in question. This flexible approach has a number of advantages, but one disadvantage is that the Committee’s conception of the normative foundations of the constitution is not easily accessible.

The first aim of the code in this report is to make the normative foundations of the Committee’s work more accessible. As part of their work, the Committee has made choices about what the constitution means in the context of the legislative process. It is these choices that the code seeks to highlight. It is important to note that the Committee advanced many of the cited standards in relation to particular bills, and did not put them forward as generalised standards. There is little doubt that if the Committee were to advance its own code of constitutional standards, it would look different to the code within this report. Nevertheless, the code does represent an accurate summary of the constitutional norms that the Committee has sought to uphold in its work since it was established in 2001.

In terms of the content of the code, it is noteworthy that many of the standards appear to be derived from the principles that underpin the parliamentary process. For example, standards that seek to regulate the use of fast-track legislation are not just general principles of good governance, nor are they are based on a particular constitutional principle, but rather they are derived from the normative foundations of the parliamentary process itself. Such standards serve to protect the integrity of the parliamentary process. This focus on parliamentary norms demonstrates the value of giving a parliamentary committee the task of assessing the constitutional implications of government bills. It has enabled the Committee to articulate the normative implications of the principles that form the foundations of the parliamentary process.

The second aim of the code is to provide a resource for those involved in the legislative process. It is widely recognised that one of the disadvantages of the United Kingdom’s uncodified constitution is that it is not easily accessible, and within Parliament the task of pointing out the constitutional implications of bills often falls to constitutional experts, particularly in the Lords, and the relevant committees. If the norms of the constitution were more readily accessible, it would be reasonable to expect more parliamentarians to engage with them during the legislative process. By publishing this code, it is hoped that parliamentarians, and others involved in the law-making process will make use of the standards within it during their scrutiny. The code might also be used by the Constitution Committee to develop its own code of legislative or constitutional standards.

The third aim is to contribute to the debate on the value of legislative standards within the legislative process in Westminster. In an earlier blog post, I put forward a critique of the code of legislative standards developed by the House of Commons Select Committee on Political and Constitutional Reform in their report titled ‘Ensuring standards in the quality of legislation’. In that post, I argued that although their code would represent a significant step forward, I thought it did not go far enough. Since that post, the Government has issued its response to the PCRC’s report. The Government could not be clearer – it does not think that a code of legislative standards is a good idea (paras 12-15). It suggests that the Cabinet Guide to Making Legislation is all that is needed for parliamentarians to judge the standard of the Government’s approach. Further, the Government argued that the PCRC’s code would risk encouraging a ‘box-ticking mentality’, and they point out that the code does not provide the ‘degree of objectivity it envisages.’ The latter point is surprising because the PCRC’s code makes every effort to be as ‘neutral’ as possible.

The Government appears to have misinterpreted the rationale for a code of soft law standards. The idea is to stimulate parliamentary debate on aspects of bills to which the standards relate, rather than to introduce an objective box-ticking exercise. The presence of parliamentary sovereignty and the absence of a codified constitution are sometimes taken to mean that Government and Parliament legislate into a normative vacuum. That somehow parliamentary sovereignty means that the government does not have to justify why a bill seeks to depart from the existing norms of the constitution. That idea, as Murray Hunt has recently argued in Parliament and the Law, is antithetical to any meaningful idea of constitutionalism. A code of constitutional standards is designed to challenge the myth of the normative vacuum and to raise the standard of justification within the legislative process, but without legally limiting Parliament’s legislative capacity. In this sense a code of soft law standards does not represent a threat to the political nature of the legislative process, as the code would always the subject of debate, and could be changed by purely political means. Soft law constitutional standards developed within Parliament might even find support from political constitutionalists, because they serve to enhance the quality of parliamentary debate by focusing the minds of parliamentarians on the value of the political process and the norms that form its basic architecture. Even if the standards are prescriptive, this does not mean that they cannot be departed from. The value of a code of soft law standards does not depend on them being complied with all of the time, instead it depends on then being used as the basis for debate and justification within the legislative process.

There seems to be little to lose and everything to gain from making more use of soft law codes of standards in Westminster. As this code demonstrates, committees within Parliament are already articulating the normative standards that are vital to the integrity of the parliamentary process. The challenge is to maximise the benefits of this work by making those standards as accessible and as influential as possible. It is hoped that this code makes a small contribution to this aim.

Lords reform next steps: small, but urgent!

17th October 2013

Today sees the publication of the House of Commons Political and Constitutional Reform Committee (PCRC) report “House of Lords reform: what next?”. It also sees a story in The Times (paywall) that David Cameron is preparing yet another list of new peers. Nothing could indicate better the need for the kind of small steps that the PCRC recommends. The next steps in Lords reform may be small, but they are increasingly urgent. Tomorrow will see debate in the Commons on a Private Member’s Bill from Conservative backbencher Dan Byles, also on Lords reform. The small steps that it contains are welcome, and definitely worthwhile. But as the PCRC points out, the most burning matters are not contained in the Byles bill, and in fact do not need legislation at all – what they need is urgent and voluntary action by party leaders, and the Prime Minister in particular.

The context for the PCRC report is of course the failure of the government’s bill last year, which sought to move to a largely elected second chamber. Since those events – which showed splits on the government’s side as well as between the parties – there has been a growing feeling that some small changes must be made to the Lords in advance of any larger-scale reform. Everybody accepts that reform cannot occur until after the next election, and even then (as I point out in my recent book) it remains unlikely. In particular there is increasingly serious concern being expressed about the growing size of the House of Lords, which is plainly unsustainable. We pointed out in a high-profile report in 2011 that David Cameron’s rate of appointments had been unprecedented, and that the coalition’s stated goal of rebalancing the Lords in line with general election vote shares could take its size to over 1200. Since the furore caused by that report, few appointments have been made. But this August a further 30 peers were appointed, taking the size of the chamber to a post-1999 high. The Times story suggests that another 30 are in the pipeline, which is worrying to say the least.

Dan Byles’ bill (which is also mirrored by a bill in the Lords from former Lord Speaker Baroness Hayman, that goes further) would legislate to allow permanent retirements from the chamber, and the expulsion of peers convicted of serious criminal offences. In evidence to the PCRC last week (see question 24) Deputy Prime Minister Nick Clegg supported these changes, saying that there was ‘no reason to delay’ in making them happen. This may indicate that the bill will secure explicit government support, and could therefore reach the statute book. Which as a next small step, is welcome.

But as I pointed out in my evidence to the PCRC inquiry, and in a subsequent blogpost, the reform most urgently needed is not to how members can exit the House of Lords, but to how they enter. Even if retirements are allowed, the size of the chamber will still continue to grow unless prime ministerial appointments are regulated. Indeed, any retirement mechanism is likely to fail unless there is agreement between the parties on a formula for new appointments – because peers will be reluctant to depart if they think that all they will achieve by doing so is a weakening of their party (or Crossbench) group. Without an agreed formula on party balance, and on the overall size of the chamber, serious progress is unlikely to be made, meaning that the size of the chamber will continue to spiral upwards – making it both more expensive, and less effective.

Today’s PCRC report, while endorsing the idea of a voluntary retirement scheme and the expulsion of criminals (and thus adding weight to the argument behind the Byles bill), recognises this problem. In its closing paragraph it refers to “agreement on how to determine the relative numerical strengths of the different party groups and the Lords” as the change with “the most potential to have a positive impact on the size of the House”. The report’s summary describes this as “the most crucial” of the reforms that the committee considered. The committee – in line with my own evidence – threw this challenge to the political parties, and the Prime Minister in particular, to resolve. If we are not to be blighted with an ever larger, more expensive and less effective House of Lords, the government and the parties must do so with urgency. Those who could help bash out the right formula, and help facilitate such talks, such as the PCRC itself, the Lords Constitution Committee, the House of Lords Appointments Commission and perhaps the Lord Speaker should also now consider what part they can play. Meanwhile, until such agreement has been reached, making the new appointments indicated in today’s Times would seem inappropriate. Demanding that agreement should precede new appointments would certainly help concentrate the Prime Minister’s mind.

Meg Russell is Reader in British and Comparative Politics and Deputy Director of the Constitution Unit. Her latest book, The Contemporary House of Lords: Westminster Bicameralism Revived, was published in July.