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.

How often do prime ministers bow to the will of parliament? Actually, all the time

30th August 2013

David Cameron‘s defeat last night in the Commons on his motion on military intervention in Syria has been met with shock, and correctly seen as a very visible assertion of parliamentary power. But, although such confrontations are unusual, it would be wrong to assume that parliamentary checks on government ambitions are the exception. In fact, they happen all the time.

Two things are unusual about yesterday’s events. First, and most widely commented upon, they address the difficult and high-profile question of peace and war. Historically, the ability to deploy troops has been seen as part of the ‘royal prerogative’ – whereby the executive can act without explicit parliamentary consent. This came under particular pressure in the run-up to the 2003 Iraq war, when Robin Cook (Leader of the House of Commons) and Jack Straw (Foreign Secretary) persuaded Tony Blair that he should not proceed without the clear support of MPs. The result, on 18 March 2003, saw ‘the largest [vote] against the whip by government MPs since the beginning of modern British politics‘ – 139 Labour MPs defied the whip – but the Prime Minister still managed to win the vote with Conservative support. Subsequently there has been pressure to entrench a convention that parliamentary consent is required for the deployment of troops, with reports from one parliamentary committee and then another . Gordon Brown, and subsequently the coalition, have been sympathetic to such calls, but – as the second of these reports explores – the issues are complex. In 2011 David Cameron sought parliamentary approval for action in Libya, which was forthcoming – but only after the event. This sparked calls from a third committee to clarify the situation. But in short, a rejection by the Commons of such a proposal is unprecedented in recent times – at least because it has so rarely been asked the question. A useful briefing by the House of Commons Library documents how Commons debates on earlier conflicts – including Suez and the Falklands war – were generally taken without a substantive vote.

The other thing that is unusual is for a government to have to back down so publicly, on any kind of policy, in the face of parliamentary opposition. But this is not unheard of, including under the coalition. Most obviously, Nick Clegg’s Lords reform proposals were withdrawn when it became clear that he faced certain defeat in the Commons on the necessary programme motion. Earlier, the coalition’s Health and Social Care Bill had been withdrawn for a ‘pause’, due to resistance – particularly from the Liberal Democrats. Tony Blair also faced problems, notably being forced to implement a ban on foxhunting that he did not himself support, and being pressured into a free vote on a total ban on smoking in public places, leading to a reversal of government policy. All of these events took place in the very public arena of the House of Commons. What is more routine is for government to withdraw proposals following defeat in the House of Lords . As I document in my recent book, a key consideration for ministers in deciding whether to accept a Lords defeat is what the Commons will bear. When there is clear resistance from government backbenchers (as Brown faced over his proposals to detain terror suspects without charge for 42 days), plans are usually dropped to avoid possible Commons humiliation.

But this leads to the key point – which is that the real power of parliament is primarily exercised behind-the-scenes, through ministers considering what MPs are prepared to accept, and only putting proposals that they know will achieve support. When it comes to legislation, which is the topic of one of our current projects, a huge amount of effort in Whitehall goes into developing parliamentary ‘handling strategies’ to think through what will prove controversial in both the Commons and the Lords. This is very explicit in the Cabinet Office’s own guide to making legislation which also states that if ‘the Government expects to be defeated on a non-government amendment, it may wish to pre-empt a defeat by tabling a concessionary amendment’ – in other words to avoid a defeat by changing its policy before the vote. It is through these subtle and private mechanisms of communication that parliament’s primary power is felt. Indeed among our case study bills there was one – the Corporate Manslaughter and Corporate Homicide Bill – that the Prime Minister was said himself not to want, but which was introduced due to pressure from Labour MPs. It is the whips’ job, in particular, to keep in touch with parliamentary opinion through informal chats in corridors and tearooms, and ministers do the same in private meetings with MPs. If these mechanisms are working confrontations can be avoided, but parliamentary power is being exercised nonetheless.

Returning to the events of yesterday, what therefore appears to have gone wrong is communication inside the Conservative party. It is obviously more difficult for whips to keep on top of opinion during a parliamentary recess, and this can only have exacerbated the problem. What is more surprising is that when things started to look difficult the government didn’t strike a deal with the opposition so that both sides could support one resolution – the words of the government resolution and the Labour resolution were strikingly similar. But does this mark the start of a new period of confrontation between government and parliament? Probably not. A smart government is in constant dialogue with parliamentarians, and when necessary trims its ambitions to avoid public splits. If Cameron didn’t know that before, he certainly knows it now.

Time For Commons To Seize The Reform Moment

01 September 2013

Seizing the moment

There has been much talk about shifts in the balance of parliamentary-Executive relations following the Government’s defeat on the Syria vote on 29 August, with Parliament said to be more emboldened in standing up to the Executive – despite the fact that, for example, it was still only the Government, not the Speaker or MPs, who could initiate its recall to have that debate and vote.

In a recent CU Blogpost criticising the endorsement of the ‘Wright approach’ by the Political and Constitutional Reform Committee, I outlined a way in which the Commons itself could take control of its own agenda and procedures back from the Government.  Here, I explore this issue further, in the hope that someone within the Palace of Westminster might feel that there is now, because of the events of ‘29/8’, a brief window of opportunity for a radical move forward.

The PCRC Report, and its related media and Chamber statements, made the usual call for its particular analysis to be accepted and its proposals to be implemented.  But like all such calls, it has no way of ensuring that the House – in practice, the Government – pays any heed at all to this plaintive plea.  How can the House or its committees make those reforms they may want actually happen, without being totally dependent on the Executive’s blessing?

Bypassing the Executive blockage

One approach would be to bypass existing formal structures and procedures, such as select committees or debates, as these are ultimately subject to Executive veto or control.  Alongside this Government-dominated ‘parliamentary’ Commons where the formal business of the House is conducted (mostly in public), lives an ‘institutional’ Commons, where the Government’s dominance does not apply, at least to the same degree.  At the apex of this ‘institutional House’ – a rather byzantine structure (see the House ‘organogram’) – is the Speaker, the HC Commission and the House Service (ie the House’s own staff), supported (often in private) by any number of departments, committees and the like (some of which, like the Commission and various ‘domestic’ committees, have MP or ministerial membership).

What if a ‘parliamentary reform body’ existed within this institutional structure, and not as a traditional parliamentary committee?

Crucially, the ‘institution’ operates according to public aims, objectives and principles, articulated in its Strategic and Management Plans.  These apply to the House Service, but many of them relate to the ‘parliamentary’ operation of the House (Chamber, Committee and related activities of the House and its Members), and to its relation with the public.  As such, it seems both obvious and logical for any reform proposals coming from select committees, the Government or from external sources also to be assessed against these standards.  Such compliance would also have the benefit that individual reform proposals would be designed to contribute to the achievement of an overall, consistent approach, rather than, as is the norm in the Commons, ad hoc, piecemeal and often reactive.

The HC Strategic Plan as the benchmark

The current version of the Commons’ ‘mission statement’ seems to be the Strategy for the House of Commons Service 2013-17.  For ‘reform compliance’ purposes, the key parts of the Strategy include the following:

“Our vision is that: The House of Commons will be valued as the central institution in our democracy: effective in holding the Government to account, scrutinising legislation, and representing the diverse views of the electorate. It will be seen both in the UK and abroad as a model of good practice and innovation, and will provide value for money. Members of Parliament will have the information, advice, support and technology they need to be effective in their work and to engage closely with their constituents.”

It then lists various ‘strategic goals’ with specific actions, such as

“1. We will make the House of Commons more effective by:

• supporting the House in implementing reforms to the way in which the Government is held to account and in strengthening the scrutiny of legislation

• supporting initiatives that develop new ways to represent the diverse views of the electorate

• influencing decisions on constitutional and procedural change, and being ready to respond to the outcomes

……………

3. We will ensure that Members, staff and the public are well-informed by:

• giving Members and their staff the support and access to the information they require to be effective in their role…

• giving the public the information needed to understand and appreciate the work of the House and its Members, by continuing to develop our website, education and outreach services, and opening a new Education Centre at Westminster

 4. We will work at every level to earn respect for the House of Commons by:..

• encouraging public participation in parliamentary business, including the work of select committees and the legislative process, and making the House more welcoming to the public

Within all this are various key benchmarks against which procedural reforms can, and should, be assessed, to ensure that reform proposals are ‘Strategy compliant’.

‘Speaker’s Advisory Panel on Strategy Compliance’

Just as the Speaker unilaterally set up his Advisory Council on Public Engagement in 2009-10, so he could establish something similar to assess procedural reform proposals.  I believe that the office of Speaker is a more appropriate sponsor for this body, rather than, say, the Commission or the Management Board, because the Speaker is, in the words of the parliamentary website, “chief officer and highest authority of the House of Commons”, and is political impartial in office.

Membership of this body would be a matter for careful consideration.  Arguably its membership should not to be confined to MPs or Commons officials, but also contain appropriate ‘external’ representatives, including senior former members of Westminster Model parliaments/assemblies within and outwith the UK (a retired devolved Presiding Officer would be a good option as Chair), academics and members of civic society.

The remit of the Panel would be to review all proposals for Commons reform – from relevant committees, such as Procedure, PCRC, Liaison, Privileges and Standards, and from the Government (as set out in election manifestos, Queen’s speeches, Coalition agreements etc) – and to assess how well they match the principles, vision and goals set out in the current Strategy for the House Service.

Again its working process would be a matter for careful consideration – not least to avoid unnecessary duplication of effort – but should be open and transparent, and involve the public as well as the relevant officials, Members, and ministers. It would be required to make a public report to the Speaker setting out its conclusions on the extent to which the proposals are or are not compliant with the Strategy.  The Speaker would then certify these conclusions as ‘compliant’ (in whole or in part) or ‘not compliant’ and transmit them to the relevant initiating body, with the expectation that ‘not compliant’ proposals will not be proceeded with unless and until appropriately amended.

This would all be informal and indicative, as they are unlikely – at least initially – to be adopted in Standing Orders or the like, and would rely for their ‘enforcement’ on the prestige of the office of Speaker and the robustness of the work of the Panel.  However, if it became accepted as the norm, it would be a way for the House as a corporate institution to assert its autonomy and influence how it operates.

Over to the Speaker

Occupants of the Chair elsewhere can be proactive in matters of procedural reform – it was, for example, the Holyrood PO who triggered the review process which led to major changes in 2011-12 – and there is no reason why the Commons Speaker, who is at the centre of both the ‘parliamentary’ and ‘institutional’ Commons, should not be the catalyst for this proposed development in Commons reform.

The present Speaker came to the Chair as a ‘reformist’, and he has continued to express such sentiments, as in his recent speech in New Zealand.  He has been handed a rare opportunity now to give effect to his aspirations for a reformed House, by providing a coherent and public framework – however transitional – for ensuring that desired reforms are not obstructed or delayed by Ministers and that Government initiatives (such as the linkage of its e-petitions scheme to the backbench business innovation) are not unilaterally or inappropriately ‘imposed’ on the House.  Carpe diem!

Take a closer look at the House of Lords: it may not be quite what you think

18 July 2013

The image of the House of Lords is very familiar to us in Britain, and to millions overseas. Our second chamber has existed for centuries (and is indeed the oldest such institution in the world), so it’s easy to assume that it is the ‘same as it ever was’. But in a book published this week with Oxford University Press I argue that the Lords deserves far closer attention. Particularly since the reform by Labour in 1999 which removed most of its hereditary members, the chamber has changed fundamentally. These changes affect who sits there, how they perceive their role, and the impact that they have on policy. Indeed it is no longer possible to fully understand the dynamics of British politics without understanding the Lords.

One reason that few stop to examine the chamber is because it’s constantly viewed as being on the brink of reform. But the current coalition’s reform plans failed in 2012 – like so many others before them – and large-scale changes are now off the agenda, at least for a while. That makes it important to examine more carefully the second chamber that we have actually got.

lords 5 HofL

The ermine-clad media image of the Lords is misleading, and significantly out of date. It’s hard to find a newspaper story about the chamber that isn’t accompanied by a picture of a gathering of elderly white men wearing red fur-trimmed robes. Yet nearly any day of the year, not a single such outfit would be in sight. Robes are worn en masse only for the Queen’s speech, and the rest of the time peers look much like members of any other legislature. They may be older on average, but are now increasingly demographically diverse. The Lords has the same proportion of women members as the House of Commons (at 23%), and a relatively higher number of ethnic minority members (at 42, compared to the Commons’ 28). Importantly, the party balance in the Lords now reflects how people vote in general elections more closely than does that in the Commons. This last factor has been important in giving peers greater confidence, and consequently making them into more influential policy players.

The House of Lords is no longer a weak institution. The classic understanding of British politics is as executive-dominated, with the government able to get its way in parliament due to its majority in the House of Commons. The Lords, as an unelected body, has long been seen as peripheral. But the 1999 reform changed that to a significant degree. Because the government has no majority in the Lords, and peers now feel more confident and legitimate, they are both more willing and able to challenge government policy. The Blair and Brown governments suffered more than 450 defeats in the Lords 1999-2010, and David Cameron’s coalition has already suffered 75. Although most Lords defeats can in principle be overturned when bills return to the Commons, in practice they often are not. Ministers may accept that peers have a valid point, or may not want to lose precious time overturning amendments, or sometimes may fear that they will face trouble with their own MPs if they seek to do so (as both Blair and Brown did on key occasions). On top of this, while defeats are the most visible sign of Lords influence, many more changes are made to bills through negotiation with peers – as illustrated by through case studies in the book. Again, this can be because ministers fear the consequences of not listening. Indeed, a key part of preparation of bills in Whitehall is now for officials to think through any aspects that the Lords may oppose.

The Lords is no longer a conservative body, with either a large or a small ‘c’. For two centuries the Conservative party dominated the Lords, but this situation ended with the 1999 reform. Since then, the balance of power in the chamber has been held by the Liberal Democrats and numerous Crossbench independents. When Blair was prime minister he faced considerable problems with the Lords over civil liberties matters, when it blocked proposals such as restrictions on jury trial and detention of terrorist suspects without charge. More recently, the coalition has faced difficulties over its cuts programme, on matters such as welfare and legal aid. For the first time in 200 years, the government thus faces credible opposition in the Lords from the left. The chamber’s new assertiveness has also seen it pushing at established conventions, and there have been clashes since 2010 over the Commons’ traditional financial privilege when the Lords has tried to protect public spending. Such pressures would – ironically – be even greater if the Conservatives were governing alone, and the Lib Dems were teaming up with Labour to oppose them from the Lords. A nice illustration of two tendencies was last month, over the Marriage (Same-Sex Couples) Bill, when the Lords took the unusual step of voting on an amendment to block the bill at second reading. But the result demonstrated the extent to which the chamber has changed: peers supported the bill by 390 votes to 148. Compare this to the chamber’s treatment of the Sexual Offences (Amendment) Bill – which equalised the age of consent – just before the 1999 reform. Back then the bill was denied a second reading by 222 votes to 146. Yes, this is partly because the world (and particularly the Conservative party) has moved on. But the House of Lords has done so even more.

Despite all this the House of Lords still needs further reform. This article paints a rosy picture of how the Lords has improved, but the institution is far from perfect. Many elements of its composition in particular remain difficult to defend. The most obvious is the continued use of byelections to replace hereditary peers when they die (for the 92 such members who can still sit under the 1999 Act). The most recent took place only this week. In addition, the Prime Minister continues to control how many peers are appointed, when, and with what party balance – an extraordinary, unregulated patronage power that is unequalled in any other democracy. This in turn contributes to the ever-growing size of the chamber. Following the collapse of Deputy Prime Minister Nick Clegg’s proposals last year, the House of Commons Political and Constitutional Reform Committee is now considering what small steps can be taken to deal with anomalies such as these (my own evidence to the committee can be seen here). Some of these changes are clearly urgent.

Of course, many consider such proposals to be merely tinkering, and want instead to see a chamber that is largely or fully elected. That is a principled position, but pragmatically such a reform seems quite unlikely to occur. As I chart in the book, various ambitious schemes have failed over the past 150 years, while the changes that succeed tend to be those that are small and piecemeal. Overseas experience likewise teaches us that second chambers are very difficult to reform. But those who want to see a better – and maybe stronger – parliament should not despair. Seemingly small and incomplete steps can make a big difference, as the 1999 reform has clearly done. In fact, even dropping the red ermine-trimmed robes for the Queen’s speech would help, by bringing the chamber’s image into line with the reality.

Dr Meg Russell is Reader in British and Comparative Politics, and Deputy Director of the Constitution Unit at University College London. Her book, The Contemporary House of Lords: Westminster Bicameralism Revived, is published by Oxford University Press this week.

ON THE WRONG WAY TO ‘WRIGHT’ THE COMMONS – AND A SUGGESTED ‘WRIGHT’ WAY

The PCRC Report

Surprise, surprise.  The Political and Constitutional Reform Committee’s review of the 2009 ‘Wright Committee’ package of parliamentary reforms, published on July 18, endorses and continues the traditional incremental, pragmatic ad hoc approach to ‘strengthening’ the House of Commons.  It welcomes the various ‘Wright reforms’ that have been implemented in some form, and calls for the implementation of those which are still outstanding.  These include old favourites of the ‘Mark 2’ conventional parliamentary reform agenda, like select committee elections, business committees (backbench and wider), petitions and better legislative scrutiny.  As has now become almost a parliamentary convention, the report concludes with a call for its proposals to be implemented quickly to, in the words of the Committee’s press release, “maintain the momentum for reform.”  This was reinforced during the PCRC Chair’s statement to the House that day (immediately after the usual weekly ‘Business Questions’ farce where our representatives beg the Government to allow them to debate various important issues, including procedural changes discussed in the PCRC Report!)

Need for a broader approach to reform

All well and good, and no doubt the coterie of reform-minded parliamentarians, academics and commentators will welcome this further predictable reinforcement of their broad consensus.  But the report does nothing to tackle the fundamentals of radical change in the Commons, especially the need to provide a comprehensive principled framework for the operation of an effective and autonomous parliamentary body, one that can set its own parameters for doing its core democratic tasks, such as scrutinising government, and representing the public who elected it.

Ad hoc reform – whether at the initiative of ministers, academics or parliamentary committees – will do no more than, at best, improve matters at the margins.  Ministers, with the power of initiative over parliamentary business and time in the House, remain in overall control of any such change process.  Just look at the early paragraphs of the Wright Report itself on the delays by the Government in allowing it to be set up; what that report called ”the impotence of the House to find time to debate and decide its own internal affairs.”  When changes are made, the Executive can nobble them to suit its own interests – as with the disruption to the Backbench Business Committee and petitions proposals by unilaterally inserting its own e-petitions system into the mix.

A narrow focus on piecemeal procedural reform misses the two main areas of change required – the institutional and the cultural.  Both reports talk the talk on these essential aspects, but focus on procedural/structural changes, which, in the Wright Report’s own words, “we hope … will lead gradually to a change of culture.” The new report worries away at the conflicting evidence from its witnesses about whether Reform A or Reform B has ‘changed the culture’ or not.

When will it be realised at Westminster that this is the wrong way to go about meaningful and beneficial change?  Piecemeal reform cannot fundamentally change the culture of the Commons or sufficiently rebalance the Executive-Parliamentary relationship.  There needs to be a serious examination of what a modern parliament is for and about, and how – as the central democratic institution – it can be designed to operate effectively as the unique forum where the various actors like the Executive, the public and others come together in our governance.  The trend towards more ‘direct democracy’ via technological innovations and rise in public expectations makes this all the more urgent.  Without needing to resort to a US-style ‘separation of powers’ model, the ‘Westminster Model’ has the potential to provide a framework for democratic, accountable and effective governance, which appropriately involves the public as well as politicians and officials.  There are variants of the traditional Model around the world – even within the UK! – which deserve more than cursory examination (of the ‘having popped up to Holyrood for a day or so, I can say that procedure X or process Y does/does not work, and would/would not work at Westminster’ variety).

If the Commons developed a culture of institutional autonomy and a strong corporate identity that could, to some degree, challenge the dominance of party and of the closed Government-Opposition battle, and if this were based on coherent, comprehensive and robust principles against which any reform proposal or parliamentary action or conduct could be measured, then particular processes, rules and procedural reforms could be developed to flesh out that framework in a logical, consistent way, able to withstand knee-jerk ‘something must be done’ ministerial reactions or hysterical moralising from the media and others.

Remember the Wright Committee was set up in the wake of the 2009 expenses scandal – a perfect example of the wrong sort of culture – not because of any particularly compelling demands for procedural change.  Similarly, this new report comes out a time when the focus is not on procedural change but on ethical issues like lobbying or ‘ethicalised’ issues like MPs’ pay and expenses.  Reforming select or legislative committees or the like will not be seen as obvious ways of addressing these supposedly priority issues.  Only changing the culture and the constitutional ‘place’ of the Commons can do both that and the necessary process stuff.

A ‘Wright way forward?

How would such a comprehensive examination of parliamentary reform – encompassing the institutional, the procedural and the cultural – be constructed?  Well, how about starting with the Commons setting up some mechanism itself to monitor and, where appropriate, champion reform?  Rather than the usual impotent promises from select committees that they will revisit progress, or that they hope their successors will, what is stopping the House authorities, especially the Speaker and/or the HC Commission, setting something up themselves, distinct from conventional select committees, to test and contextualise reform proposals?

A cursory look at the Westminster website reveals an explosion in the number of bodies and groups established (by SOs, statute, Speaker or Commission etc.) to deal with particular aspects of House administration and activity.  Some even have non-MPs as members.  Indeed one of the problems with the current arrangements is that, not only do many of these important committees operate in virtual practical anonymity (despite varying degrees of online transparency), they also appear to exist within a rather byzantine governance ‘system’, (see the House ‘organogram’). What, if any, is the relationship between, say, the Speaker’s Advisory Council on Public Engagement (SACPE, with no current MPs on its membership);  Management Board (with 2 external members as well as the departmental heads); Administration Estimate Audit Committee (with 3 MPs and 3 external members); Finance & Services Committee; Administration Committee; HC Commission; Office of the Chief Executive; Speaker’s Office (interestingly, of these last three, only the Speaker’s Office appears to have no direct public contact details, with a request that enquirers contact the HC Information Office) etc etc?

Whatever impact this governance structure may have on the normal institutional running of the House, it seems hardly likely to foster a comprehensive, holistic approach to monitoring and responding to – never mind, initiating or evaluating – parliamentary reform policies or proposals, whether they come from the Government, external academics and organisations or internally via the Procedure Committee, Liaison Committee, PCRC etc (including those in the Lords, especially where there are, as is often the case, cross-House or Parliament-wide aspects)?  For example, is any procedural reform routinely ‘public engagement assessed’, eg by SACPE? Which of these bodies have an input into the work of IPSA (either directly or via yet another internal body, the Speaker’s Committee for IPSA, with a mixed membership of MPs and lay people) whose resourcing powers and functions are so crucial to the working of the House and its members, not least in relation to the public?

All this suggests that there is a need for some House-owned group to monitor ‘parliamentary reform’ in all its procedural, institutional and other aspects, with a broad overview remit to consider the wider implications of particular changes, or proposals for change, of procedure, policy, structure or operation, including any unintended or unexpected consequences for, as appropriate, public engagement, procedural effectiveness and efficiency and so on.  There is sufficient precedent for such a body to be set up internally, especially by or on behalf of the Speaker, and for its membership not to be confined to MPs or Commons officials. 

It would need some set of principles and objectives to measure any proposals against, similar in function and purpose to, say, the Scottish Parliament’s ‘founding principles’.  Whether this was, for example a variant of the existing published Strategy for the House of Commons Service – probably the nearest thing the House has to such a set of overarching principles of its role and purpose – or something newly drafted in some way, would be a matter for consideration.

If all the self-proclaimed reformers around, including the Speaker and the Chair of the PCRC, really want to ensure continuing meaningful improvement for the Commons, in line with the ambitious rhetoric of the Strategy, then this proposal for a dedicated group within the House may be something they should think about – and quickly.

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