The problem(s) of House of Lords appointments

Lords appointments are back in the news, with rumours of resignation honours from Boris Johnson, and even possibly Liz Truss. The current unregulated system of prime ministerial patronage causes multiple problems, and new Constitution Unit polling shows widespread public demand for change. Meg Russell reviews the problems and possible solutions, in the context of a bill on Lords appointments due for debate tomorrow. She argues that small-scale changes are now urgently required, and urges party leaders to embrace them – whatever their longer-term aspirations for Lords reform.

Recent weeks have seen revived controversies about appointments to the House of Lords. These include concerns about Boris Johnson’s long-rumoured resignation honours list, now joined by concerns that Liz Truss may want resignation honours of her own after just 49 days as Prime Minister. While the personalities may be different, controversies over Lords appointments are nothing new. The central overarching problem is the unregulated patronage power that rests with the Prime Minister. As this post highlights, a series of other problems follow: regarding the chamber’s size, its party balance, the quality of candidates appointed, the chamber’s reputation and widespread public dissatisfaction with the system.

An end to the Prime Minister’s unfettered appointment power is long overdue. Tomorrow a bill will be debated in the Lords aiming to tackle some of the problems, but as a backbench bill it is unlikely to succeed. Its contents nonetheless provide a useful (though incomplete) guide to the kind of important small-scale changes needed. Both main party leaders now need urgently to propose short-term packages of their own.

The problem of the size of the Lords

Much attention has focused in recent years on the spiralling size of the House of Lords. The current system places no limits whatsoever on the number of members who may be appointed to the chamber by the Prime Minister. Most – though not all – prime ministers have appointed unsustainably. Particularly given that peerages are for life, over-appointment drives the size of the chamber ever upwards. This is a historic problem, visible throughout the 20th century. The Blair government’s reform of 1999 brought the size of the chamber down (from around 1200 to just over 650). But since then it has risen again. Two reports from the Constitution Unit – in 2011 and 2015 – analysed this problem, calling for urgent action. In 2016 the Lord Speaker established a cross-party Committee on the Size of the House, which made recommendations the following year. Centrally these included restraint by the Prime Minister based on a ‘two-out-one-in’ principle – so that only one new peer would be appointed for every two who left, until the chamber stabilised at 600 members. These principles were endorsed by the Commons Public Administration and Constitutional Affairs Committee, and respected by Theresa May. But Boris Johnson ignored them. In 2021, the Lord Speaker’s Committee lamented how he had ‘undone progress’ achieved by his predecessor.

Size of the House of Lords 2000 – 2022

Note: based on official House of Lords figures for January each year, except ‘latest’, which uses 15 November 2022 figures, but includes an additional 10 members recently appointed who were yet to take their seats.

The graph shows the clear upward trend in the size of the chamber from 2000, followed by gradual decline under Theresa May, reversed under Boris Johnson. The announcement on 14 October of a further 26 peers nominated by Johnson went little noticed, as Chancellor Kwasi Kwarteng stepped down that same day. This was not Johnson’s much-mooted resignation list, which is still awaited, but a hangover from his time in office. The new names take the size of the chamber to 788, or 830 if those peers temporarily absent (e.g. due to leave of absence) are included. Any resignation honours, from either Johnson or Truss, would increase these figures further.

The problem of party balance

Just as the total number of peers created by the Prime Minister is unregulated, so too is the balance between the political parties (and independent Crossbenchers) among appointments made. This is equally problematic. Prime Ministers will always have an inclination to reward their own side, and to strengthen it in the Lords. If they do, it can unbalance the chamber, and store up future problems if there is a change of government. This tendency was, again, visible throughout the 20th century, and was a significant contributor to the spiralling upward size of the Lords.

Party balance in the House of Lords 2000 – 2022

Note: based on official House of Lords figures for January each year, except ‘latest’, which uses 15 November 2022 figures, but includes an additional 10 members recently appointed who were yet to take their seats.

Recent figures are shown in the second graph. Following the Labour reform of 1999, Labour numbers increased (from 181 in 2000 to 211 in 2010), while Conservative numbers declined (from 232 to 189); but the two parties remained fairly balanced within the chamber. After 2010, Conservative numbers increased sharply, and have continued to do so, while Labour numbers have declined. Today, the Conservatives hold almost 100 seats more than Labour (268 to 174). This has significantly impacted the work of the chamber, strengthening the government against its opponents. But it also presents a serious dilemma for any incoming Labour Prime Minister. If there were a change of government, and Labour sought to rebalance, that would require appointment of around 100 new peers, taking the size of the chamber to 930.

There have been consistent calls for a rational formula to determine the share of appointments between the parties – to ensure fairness, and prevent such an upward ‘ratchet’ effect. The Lord Speaker’s Committee proposed basing this on a mix of general election vote shares and seats in the House of Commons (an idea again supported by PACAC). But the proposal was ignored. In its 2021 report, the Lord Speaker’s Committee noted that ‘party nominations over the [past] four years have been overwhelmingly Conservative and have fallen well short of our proposal for sharing appointments to reflect the result of General Elections’.

The problem of quality of candidates

Negative headlines about the Lords frequently focus on the quality of those appointed. One common claim is that party donors are advantaged in Lords appointments – in late 2021 a Sunday Times investigation suggested that all donors who had recently given over £3 million to the Conservative Party had been ennobled. Significant controversy surrounded Boris Johnson’s appointment of Evgeny Lebedev, with suggestions that he had overruled security advice. Most recently, concerns have arisen that Johnson wants to include unusually young and inexperienced former aides on his resignation honours list.

While undoubtedly many very capable and deserving members are appointed to the Lords, such stories highlight the lack of quality control on those that the Prime Minister appoints. The House of Lords Appointments Commission, created in 2000, vets party political nominees for propriety. But its vetting criteria are very narrow, and do not extend to the qualifications, suitability or willingness of candidates to play an active role in the second chamber. Indeed, even its propriety recommendations are not binding on the Prime Minister. In 2020, Boris Johnson overruled the Commission’s concerns over the appointment of Peter Cruddas.

Again, various reviews have urged that the House of Lords Appointments Commission should have greater power – to enforce its recommendations, and to apply wider criteria regarding candidates’ suitability. The Commission would also be the obvious body to oversee the number and party balance of appointments, to an agreed formula. Last month, the chair of the Commission wrote to the Prime Minister indicating that ‘the Commission is increasingly uncomfortable about the limits of its role’.

A particular question arises over whether a new Prime Minister can assert control over the numbers and quality of appointees proposed (most obviously in resignation honours) by their predecessor. There are strong arguments that the new Prime Minister, Rishi Sunak, should do so in the case of Johnson and Truss. But this constraint would be no substitute for standard day-to-day control on prime ministerial appointments.

The problem of the chamber’s reputation

All of these factors – the size of the chamber, its uncontrolled party balance, and concerns that inappropriate individuals are being appointed – severely damage its reputation. The House of Lords has important work to do, scrutinising government legislation, and holding ministers to account on the floor and in committees. It makes a valuable policy contribution, and in recent years has played a key role in keeping government in check, acting as a fresh pair of eyes to ask the often party-dominated House of Commons to think again – including on key constitutional matters. But if the House of Lords’ composition can be ridiculed by the media, this undermines its power, making it easier for the government to dismiss and overrule.

Hence a fundamental problem with the system is that the Prime Minister, through control of the chamber’s membership, also has the ability to control and undermine its reputation – and can perhaps even deliberately bring it into disrepute. This is wholly inappropriate, and serves gradually to strengthen the hand of the executive over parliament.

The problem of public dissatisfaction

Unsurprisingly, the public are frustrated by this situation. Relatively few polls are conducted about the Lords, and those that are often ask fairly simplistic questions. As part of the Constitution Unit’s Democracy in the UK after Brexit project, we recently polled over 2000 people about their attitudes to Lords appointments. These were deliberately ‘forced choice’ questions, asking respondents to indicate support for one proposition over another, rather than simply selecting ‘agree’ or ‘disagree’. The result was a wholehearted rejection of key aspects of the current appointments system – though (as indicated below) not a wholehearted embrace of an elected alternative to the Lords.

The first question asked respondents whether they preferred that the Prime Minister should appoint new members of the Lords, or whether this should be done by an independent body. Only 6% supported the existing system of prime ministerial appointments, and 58% preferred appointment by an independent body (17% agreed with both equally, and 19% responded ‘don’t know’). Excluding don’t knows, 7% supported the existing system, compared to 72% who supported change.

The second question asked whether there should be no limit on the number of members in the Lords, or whether its size should be capped at no larger than the House of Commons (currently 650). Just 3% supported the current unregulated system, versus 65% who preferred a cap on size. Again excluding don’t knows, 4% supported the status quo, against 84% who wanted change (11% agreed with both equally).

Solutions are urgently needed: what are they?

This all adds up to a very serious need for change to the House of Lords. Dissatisfaction with the current system frequently leads to discussion of radical alternatives, such as abolition or moving to an elected chamber. But these kinds of major changes have always in practice proved very difficult to achieve. Among the many obstacles is the divided nature of public opinion. The third question on the recent Constitution Unit survey asked respondents whether they agreed that the Lords should include elected members ‘to ensure that it is democratically accountable’, or appointed members ‘to ensure that it contains experts and people independent of political parties’. In this case, opinion was almost equally split, with 29% supporting elected members, 28% supporting appointed members, and 26% both equally (while 18% said ‘don’t know’). So the public see some merit in appointments, despite rejecting the worst aspects of the current system. To protect the reputation and the proper functioning of parliament, solving such problems cannot await large-scale reform but is needed straight away. Even fairly minor changes could make an important difference.

One proposed vehicle for change is a bill being debated in the Lords tomorrow, sponsored by Conservative peer and constitutional specialist Professor the Lord (Philip) Norton of Louth. This contains various modest and sensible proposals, such as specifying that the Lords should be no larger than the Commons, putting the House of Lords Appointments Commission on a statutory basis, and requiring the Prime Minister to accept its recommendations. It would also broaden the Commission’s criteria for vetting political peers, and require that no fewer than 20% of the members of the Lords should be independent of political party – but it omits to include a proportionality formula. The bill’s implementation would be an important, but incomplete, start; however, as a backbench initiative, it is unlikely to reach the statute book. That almost invariably requires support from the governing party.

Prime Minister Rishi Sunak has pledged to restore ‘integrity, professionalism and accountability’ to government. To prove his commitment, he should urgently consider embracing the small-scale Lords reforms in the Norton bill, along with a proportionality formula. As the potential government in waiting, Labour should do the same. Whatever the parties’ longer-term aspirations in terms of Lords reform, immediate changes to the appointments process are now essential to protect parliament’s integrity and reputation.

About the author

Professor Meg Russell is Director of the Constitution Unit. Her books include The Contemporary House of Lords (Oxford University Press, 2013) and Legislation at Westminster (Oxford University Press, 2017).