The House of Lords has faced increasing criticisms over its size – now well over 800 members – and David Cameron was criticised for his excessive peerage appointments. We now not only have a new Prime Minister, but a new Lord Speaker who has spoken out clearly about the need to reduce the size chamber to below that of the House of Commons. But what are the right mechanisms to achieve this, and to ensure that similar problems do not simply recur? Meg Russell analyses the options.
The growing size of the House of Lords has become increasingly controversial. Under David Cameron’s premiership, membership rose from just over 700 members to well beyond 800 in just six years, and he appointed to the chamber at a faster rate than any other prime minister since life peerages began (see page 13 here for figures to 2015). Both the Lords’ size and rate of appointments have frequently attracted fierce press criticism. Public figures expressing concern in recent months have included the Chair of the Committee on Standards in Public Life, Lord Bew, and the outgoing Lord Speaker, Baroness D’Souza.
Just in case Prime Minister Theresa May was in doubt about the strength of feeling on this issue, the incoming Lord Speaker Lord (Norman) Fowler began his term by strongly speaking out for change. Fowler was formerly a cabinet minister under Margaret Thatcher, and party chairman under John Major, so has significant gravitas in Conservative circles. In a BBC interview on 16 September he suggested ‘that by the next election, [the Lords] should be at a number that is just less than the House of Commons’, emphasising how the current situation is damaging to parliament’s reputation. A particularly sensitive contextual issue is that the Commons is itself due to shrink in 2020, from 650 MPs to 600, under the government’s proposed boundary changes. In an interview for the House Magazine (reproduced on Politics Home) Fowler commented that ‘I don’t think that we can justify a situation where you have over 800 peers at the same time as you’re bringing down the Commons to 600 MPs’. Conservative chair of the House of Commons Procedure Committee Charles Walker has gone further, suggesting that getting the Lords below 600 should be made a condition for voting the boundary changes through. A cross-party group of peers is pressing for the Lords to vote on the principle of being no larger than the Commons in the near future (notably the UK is the only bicameral country in the world where the second chamber is larger than the first). Conservative chair of the Public Administration and Constitutional Affairs Committee, Bernard Jenkin, has meanwhile asked his committee to launch an inquiry into Lords numbers and appointments.
So this appears to be a reform whose time has come. But the key question is how best to reduce from 800+ members to 600. To succeed, any such reduction must be both sustainable and seen to be fair. Here I argue that this requires four interconnected things: a large number of departures before 2020, a long-term cap on the size of the House, limitations on future appointments, and an agreed principle of balance between the parties (and other groups). Without all four, any attempted reform is doomed to fail.
1/ Reducing current numbers through departures
A good deal of attention in the Lords has previously focused on how to shed existing members – i.e. through encouraging or forcing peers to leave. Permanent departures became possible under the House of Lords Reform Act 2014 (which began as a private member’s bill sponsored by Lord Steel). To date, 56 peers have permanently departed using this facility (including four who were forcibly retired under its non-attendance provisions), but these departures have occurred in a relatively uncoordinated way. Something more co-ordinated, and significantly larger scale, would be needed to reach the 600 target. There are several mechanisms that could be considered.
The most obvious is probably the introduction of a retirement age. Notably a reform group set up by Labour peers suggested in 2014 that members should retire on their 80th birthday, or at the end of the parliament in which their 80th birthday falls. This proposal has also been supported by Lord Steel (£). There are currently 124 peers aged over 80, and 211 will attain this age by the election of May 2020. Hence this proposal could achieve the necessary change at one fell swoop, so long as there were no additional appointments in that time. But it does have two notable disadvantages. First, some highly-regarded members of the chamber would be lost (including Lord Fowler himself). This could be mitigated by allowing a limited number of exceptions, perhaps to be elected by their colleagues. Second, the age profiles of different groups would give slightly uneven results. Those reaching 80 by May 2020 comprise 27 per cent of Conservative peers, 30 per cent of Labour peers and 31 per cent of Crossbenchers (all differences that are relatively small), but only 16 per cent of Liberal Democrats. This is the first indicator of the need to incorporate party balance principles in any change. Of course a compulsory retirement age could be set at a different level – for example an age of 85 would require 97 departures by 2020.
Another possibility is to force members who attend relatively rarely to retire. The 2014 Act requires this of peers who have not attended within a session (i.e. usually a year), unless they have sought temporary ‘leave of absence’. Prominent Conservative Lord Cormack has recently suggested extending this to those attending fewer than 25 per cent of sitting days. But this option brings problems considerably more serious than those associated with a retirement age. First, while it would reduce numbers on paper, it would clearly do little to change actual attendance, and therefore would not address the problems highlighted by Baroness D’Souza of overcrowding, inefficiency and the ‘enormous burden on both the administration and the taxpayer’. Second, it would disproportionately affect the independent Crossbenchers, who are particularly valued members of the Lords. Many of them retain important roles outside parliament, and attend only for debates in which they have clear expertise. Applying the 25 per cent rule to the 2015-16 session would have resulted in the loss of 11 per cent of Labour and Liberal Democrat members, 15 per cent of Conservatives, but 32 per cent of Crossbenchers. In all, 138 members would have been lost from the four main groups (i.e. not enough to meet the target), almost half of them Crossbenchers. More generally, such a move could push the Lords closer towards a ‘full-time’ chamber, more similar to the House of Commons, by culling part-time experts from all the benches.
A third alternative is to require each group in the chamber to reduce by a given size. If the number was agreed between the groups, volunteers might be sought in the first instance – by party whips, and the Crossbench Convener. Provided the other safeguards below were in place, sufficient volunteers might come forward. If they didn’t, the groups could vote on who should stay (as occurred when the number of hereditary peers was reduced in 1999). This mechanism avoids the problems with the two more crude solutions above, though in practice both age and attendance – alongside competence and broader contribution – would no doubt influence these decisions. But this solution brings the question of proportionality between the groups right to the fore. The simplest option would be to require all groups to reduce by the same proportion (i.e. to get from 800+ to 600, approximately 25%) – this is roughly what occurred in 1999. But to achieve long-term sustainability (discussed further below), it would be more sensible to base proportions on some agreed principle, linked to general election results. If reduction is to occur sometime in the run-up to 2020 it would be illogical to base this on results in 2015 – which would make proportions in the chamber almost immediately out of date. Indeed as our work has explored in detail, linking proportions to any single general election soon becomes highly problematic. It would be both fairer and more sustainable to use an average of three general elections – a principle supported by Baroness D’Souza in her comments cited above. It would then be consistent with previous Lords reform proposals for the Crossbenchers to be guaranteed a minimum 20% of seats (the group currently holds just under 22%).
2/ Maintaining a limit through a permanent size cap
Most of the recent high profile comments about reducing the size of the Lords by 2020 have focused primarily on this need to exclude 200+ members. But such action would likely prove futile (or indeed even harmful, if valued members were lost) unless it were cemented as a permanent change. If the Prime Minister retained untrammelled right of appointment, the size of the chamber could simply rise again. Indeed this is what has happened throughout history – in some respects David Cameron just speeded up a long-established process. As detailed in my 2013 book (here and here), the Lords has grown steadily over hundreds of years, due to appointments continuously outstripping the number of departures (the sole exception was the removal of the hereditary peers in 1999). In fact we are approaching the 300th anniversary of the first attempt to place a statutory limit on the number of executive appointments to the Lords – in 1719. Until this most fundamental flaw in the system is resolved, the problem will never go away. Hence any resolution or bill specifying that the size of the Lords should not exceed that of the Commons must cement this permanently, not simply as a one-off gesture. The only alternative would be repeated clear-outs (perhaps even after every general election), which would be deeply undesirable. This would both be very disruptive and create great uncertainty for members. Fear of removal could cause well-qualified candidates to decline seats in the chamber, and place some who accepted them into ‘permanent campaign’ mode in order to be re-elected by their colleagues. Far better to fix the size of the chamber once and for all.
3/ Restrictions on new appointments
If the size of the chamber becomes fixed, this necessarily places a limit on the number of new appointments that can be made. For the first time the Prime Minister would be able to appoint only to fill ‘vacancies’ in the Lords as these occur, when existing members depart. This is, coincidentally, what the 1719 bill sought to impose. It is also the framework that governs membership of the all-appointed Canadian Senate. Without a limit, future prime ministers would give in to the same temptations as their predecessors by appointing in an unsustainable way. But a new limit could also exacerbate other established bad habits, unless the fourth crucial part of the jigsaw is also put in place.
As indicated above, it would also clearly be unhelpful to current efforts if numerous new peers were appointed before 2020. Some indication of intended restraint on the part of the new Prime Minister would therefore be desirable.
4/ Agreed principles of balance between groups
One of the key reasons that the size of the House of Lords has perpetually grown is the imbalance in prime ministerial appointments. While by convention prime ministers have appointed from parties other than their own (and to the Crossbenches), they have almost always appointed disproportionately from their own side. For example, Harold Wilson created 221 peers, 101 of them Labour, and just 42 Conservative; for Tony Blair the figures were respectively 374, 162 and 62; Margaret Thatcher (despite the Lords already being dominated by Conservative hereditary peers) appointed 205 members, of whom 98 were Conservative and only 56 Labour (for full details see page 13 here). Each change of government has then sparked a desire by the new Prime Minister to make appointments to counterbalance those of their predecessor. The numbers of non-party Crossbenchers appointed has meanwhile historically been patchy, and reached particularly low levels under David Cameron. If the number of appointments is in future restricted, all groups thus need protection and a fair number of seats. The worst case scenario would be for a limit on numbers to drive the UK towards the pattern that has been the norm in Canada – whereby the Prime Minister (until very recently) has appointed only from their own party. In the Canadian system long periods of government by one party have resulted in a new government inheriting an unbalanced and hostile second chamber.
As with agreeing a package of retirements, it is thus essential to agree a fair principle governing the sharing out of new appointments between the parties, and to Crossbenchers. One option is to require the Prime Minister to make new appointments in proportion to votes cast at the previous general election (e.g. if ten members are appointed, those ten are allocated in proportion to the number of votes that the parties received), with 20 per cent guaranteed for Crossbenchers. This is the simplest and clearest solution. It could have slightly patchy effects if more members departed the chamber during one five-year parliament than the next (and consequently might act as a disincentive to retirements), but would broadly balance out over time. An alternative could be to require appointments proportional to the average of the last three elections or some similar formula.
All four of these measures are essential to bringing down the size of the Lords, as is now almost universally accepted must happen. Clearly mass departures are needed to achieve a goal of 600 members by 2020. But members will not voluntarily depart (and will not agree to forced departures either) unless it is clear what is coming next. It would be ill-advised for existing peers to go if this could be followed by mass prime ministerial appointments that pushed the size of the chamber up again, or which disproportionately favoured the Prime Minister’s own party. Hence although these changes are small and incremental, they nonetheless need to form a coherent package.
There remains the question of how such changes should be implemented. The Lords can use a resolution to agree the principle that it should be no larger than the Commons, and that this limit should apply from 2020 onwards. This would be non-binding, but if the Prime Minister concedes the point it could be enough to create a strong convention. Nonetheless legislation to underpin the change might be a sensible guarantee. Likewise, a declaration by the Prime Minister that future appointments will follow a proportionality formula (perhaps monitored by the House of Lords Appointments Commission) would be difficult for her successors to renege upon, but would be future-proofed if underpinned in statute. Legislation on Lords reform has historically been difficult to achieve (as shown very clearly in 1969, post-1999 and in 2012), but the changes discussed here are very small and few could argue with their merits. A declaration of support for these principles by both parliament and government is the key first step. Reinforcement by a short government bill, or a private member’s bill with government support, might then usefully follow.
For further useful briefing on recent size debates, see this report by the House of Lords Library.
About the author
Professor Meg Russell is the Director of the Constitution Unit and the author of The Contemporary House of Lords: Westminster Bicameralism Revived. In 2015 she published a report on the need to limit prime ministerial appointments to the Lords.