Tomorrow the House of Lords will debate its size, which is widely criticised for having grown by almost 200 since the removal of most hereditary peers in 1999. In this post former Lord Speaker Baroness D’Souza argues that change is urgently required to contain the number of peers, including placing limits on the Prime Minister’s patronage power, in order to maintain both the chamber’s ability to command respect and the wider effectiveness of parliament.
Tomorrow the House of Lords debates a motion ‘that this House believes that its size should be reduced, and methods should be explored by which this could be achieved’. The current membership of the chamber stands at over 800 (and substantially more when those temporarily absent are included). As the Constitution Unit’s work has frequently highlighted, there has been a steep increase in size since the chamber was last substantially reformed by the Blair government in 1999 – of a kind that is frankly unsustainable.
In the decade 1997-2007 a total of 374 new peers were created (i.e. 37.4 per annum). In the six years 2010-16, a further 261 peers entered the House (i.e. 43.5 per annum). Although some peers sadly die each year, and new voluntary retirement provisions were introduced in 2014, the number being appointed by the Prime Minister has far outstripped the number who have departed.
Of course the Lords was far bigger, with over 1,200 members, before the 1999 House of Lords Reform Act which excluded the majority of the hereditary peers from membership. But attendance then was fitful with some peers rarely, if ever, participating. Today with many more younger and active peers attendance it is at an all-time high – for several years now, average daily attendance has very significantly exceeded that before the 1999 reform.
Following the failure of the coalition government’s reform bill, the 2015 Conservative manifesto described Lords reform as ‘not a priority in the next Parliament’. Nonetheless, it did acknowledge the need to ‘address… the size of the chamber’. The approach of the previous Prime Minister, David Cameron, was to put the ball in the Lords court – ‘sort yourselves out’, he effectively said. And that is what we are now trying to do. For the first time in centuries a fragile consensus appears to have been reached – the House of Lords is too big, and the sheer weight of numbers is affecting the quality and effectiveness of its work. Hence while Lords reform may not be on the government’s agenda it most certainly is on peers’ agenda – including in a very literal sense tomorrow. The problem has also recently been recognised by a House of Commons select committee. Does this signify the possibility of real change, and if so what should we do?
The need for change is obvious to me, as somebody who has presided over both the House of Lords’ debates, and its administration. A combination of numbers, increasingly active peers, and recruitment from a relatively narrow demographic affects the quality of the Lords’ work. He or she who shouts loudest, but not necessarily most astutely, is now likely to be successful at question time; speaking times in debates are sometimes reduced to 3 minutes; competition for membership of committees, where so much valuable work is done, may mean that the need for political balance outweighs the selection of relevant expertise.
Meanwhile the strain on the services and the administration of the House is considerable. That complement of public servants who enable peers’ to do their job has not altered in recent decades – but the demands on them have grown very substantially. And the cost to the public purse has greatly increased. The allowances budget has gone from just over £10 million in 2000 to over £19 million in 2015-16.
During my term as Lord Speaker I was greatly saddened to watch the House of Lords fall into increasing public disrepute, with ridicule focused on its growing numbers. The role of the chamber is to act as a bulwark against the power of government – by insisting on revisions and invoking delays – while ultimately of course always respecting the will of the elected House of Commons. Through careful scrutiny it improves the laws by which we are governed, and holds ministers to account. But it can only do this effectively if it commands respect. More than anything else the Lords is respected for the expertise it brings to bear on ethical, moral, legal and technical aspects of draft laws. But while there is still much expertise about, one also cannot escape the conclusion that appointments too often reflect Prime Ministers’ personal preferences, which in turn are offered as rewards for support – of a financial or non-financial kind.
In terms of what should be done, history shows that the Lords fares best when small, incremental changes are introduced and allowed time to bed down. We have for example introduced voluntary retirement, the possibility of expulsion for malfeasance and a host of other procedural changes in the last few years. The reforms most urgently needed now fall well within the category of moderate adjustments. Quite simply the House of Lords is unnecessarily inflated. Much work has been done on what might constitute an appropriate size – a thoughtful report by Labour peers in 2014 suggested that 450 members would be adequate to fulfil all the House of Lords’ functions. Some other proposals have put the number as low as 350. In this context a principle that the chamber’s current size should be reduced by the next general election to no bigger than the House of Commons – i.e. 600 peers – is modest. To preserve the integrity and effectiveness of parliament, both peers and the Prime Minister should now view adherence to this principle as a public duty.
There is already widespread support for the principle. My successor as Lord Speaker, Lord Fowler, has spoken out strongly to this effect. Yesterday my predecessor Baroness Hayman, alongside former Lord Chief Justice Lord Judge, former cabinet ministers Lord Forsyth (Conservative) and Lord Cunningham of Felling (Labour) and former Liberal leader Lord Steel of Aikwood joined me in support of a letter to the Times (£) urging establishment of a ‘select committee to identify the most appropriate mechanisms’ to put the principle into effect. We also proposed that ‘the independent or Crossbench peers should not be less than 20 per cent of the total; no one political grouping should enjoy an overall majority; the party political balance should broadly reflect the results of recent general elections; and in due course the Independent Appointments Commission should have oversight of the nomination of all peers’.
Any permanent reduction in the size of the House can only be achieved by agreeing a formal cap on numbers. As set out recently by Meg Russell on this blog, maintaining a cap requires both departures by existing peers and agreed limits on new appointments. It is the royal prerogative that allows Prime Ministers to appoint peers. Royal prerogatives may be ancient powers but that doesn’t mean they should be treated as sacrosanct. The constitutional principles that govern our democracy insist that ministers are constitutionally responsible to parliament for the discharge of all their functions and the exercise of all their powers. Over time, legislation has limited the extent of the prerogative power, including in some cases abolishing it. For example, the Civil Contingencies Act 2004 covers a range of situations where previously the royal prerogative might have been used. More recently, this power was removed in the context of the 2011 Fixed-term Parliaments Act and, although not codified, is now constrained by convention in matters concerning the deployment of armed forces. Hence should parliament wish to curtail the prime minister of the day in his or her exercise of patronage it could do so.
The short term priority is that parliament and government should reach agreement on the need to maintain a sensible size cap. If peers commit to reduce their numbers to no more than 600, and to explore the detailed means to do so, a commitment should be given that this limit will be respected in the conferral of new appointments. In future, once the principle is accepted, this commitment might be laid down in statute.
About the author
Baroness D’Souza retired as Lord Speaker in summer 2016. Before being elected to the position in July 2011 she was Convener of the Crossbench peers.