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 The Coalition did publish a bill, but this was withdrawn following Commons opposition in 2012.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).
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