The government has publicly committed to removing Lord (Peter) Mandelson’s peerage following additional revelations about his connections to convicted sex offender Jeffrey Epstein. Robert Hazell considers potential mechanisms for achieving this, and argues that if it is to be done by legislation, then the government should consider carefully how wide its scope should be, what criteria should trigger the removal process, and whether its provisions should be retrospective.
Spare a thought for the overworked officials in the Propriety and Ethics team of the Cabinet Office. First they were required to sift through tens of thousands of messages from Lord (Peter) Mandelson to ministers, officials and special advisers, prior to publication in a massive data dump. And then they were suddenly instructed to prepare legislation enabling the former ambassador’s peerage to be stripped ‘as quickly as possible’.
It does seem odd for the government to be focusing so much energy on stripping Mandelson of his title, when the key failing is the lack of due diligence on high profile appointments, and the casual award of peerages. Keir Starmer’s former Director of Communications Lord (Matthew) Doyle is the latest example, suspended by Labour for his links with a sex offender only a month after entering the Lords. If the Cabinet Office were allowed to step back for a moment and analyse the underlying problem, they would surely advise tighter controls on the award of peerages in the first place, with stronger powers for the House of Lords Appointments Commission: something the Constitution Unit and others have been advocating for years. In addition, Mandelson is no longer a member of the House of Lords – he resigned his membership of the chamber within a few days of the recent allegations coming out, so all that remains in doubt at this point is his title.
At Prime Minister’s Questions on 4 February Sir Keir Starmer said: ‘I have instructed my team to draft legislation to strip Mandelson of his title, and wider legislation to remove disgraced peers’. And on 9 February the Chief Secretary to the Prime Minister Darren Jones MP confirmed:
that the Government will bring forward legislation to ensure that peerages can be removed from disgraced peers and that Peter Mandelson will be removed from the list of Privy Councillors.
The government appears to have given this commitment with no thought about what the legislation might say. Initially it seems to have contemplated a short bill simply stripping Mandelson of his title, rather than more generic legislation. They may yet fall back on that option as the difficulties of wider legislation become apparent. Or they may have hoped that generic legislation could be as simple as Rachael Maskell MP’s Removal of Titles Bill 2025, a two clause bill that would enable the King to remove any title on his own initiative, or following a recommendation by a joint committee of parliament.
The difficulty with the first route to removal in Maskell’s bill is that it is too arbitrary; while the second risks being too politicised. Her bill is due to have its second reading on 27 March. The government will be under pressure to introduce its own proposals by then, even though any legislation stands almost no chance of being passed in the remainder of this parliamentary session. The rest of this blog sets out the main issues the government will need to consider in framing the legislation.
Framing the legislation 1: creating the right machinery
There must be a process, including due process, to ensure people are not stripped of their peerages arbitrarily, or merely in response to a media and political hue and cry. One statutory precedent is the machinery established under the Titles Deprivation Act 1917, an Act to ‘deprive Enemy Peers and Princes of their British Dignities and Titles’. A committee of the Privy Council was established ‘to enquire into and report the names of any persons … who have, during the present war, borne arms against His Majesty’. The Act was specific to wartime, and could not be deployed now; but the precedent suggests one possible piece of machinery could be a committee of Privy Counsellors.
However a more suitable forum would seem to be the Honours (Forfeiture) Committee. The committee has 50 years’ experience of considering cases where an honour (such as a knighthood, or an OBE) should be withdrawn following a criminal conviction, or conduct bringing the honours system into disrepute. The committee is chaired by career civil servant Sarah Healey, plus the Treasury Solicitor Susanna McGibbon KC (who heads the Government Legal Department) and four independent members.
The committee does not claim to be an investigatory body – it does not decide whether someone is guilty or innocent of a particular act. Where it can, it reflects the findings of criminal convictions or official investigations. The committee’s recommendations are submitted through the Prime Minister to the King, with the subsequent notice of forfeiture being placed in the London Gazette. The committee meets every six months or so, and is kept busy: in the last couple of years 33 people have forfeited their honours, including former chief executive of the Post Office Paula Vennells, who forfeited her CBE.
Framing the legislation 2: defining the threshold which might trigger removal
There must be a robust test to be applied before someone is stripped of their peerage. This could be similar to the test applied by the Honours (Forfeiture) Committee: that someone should lose their peerage following a serious criminal conviction, or conduct bringing the peerage into disrepute. The committee will automatically consider forfeiture in cases where the holder:
- has been found guilty of a criminal offence and sentenced to imprisonment for more than three months;
- has been censured or struck off by the relevant regulatory authority or professional body;
- has been found guilty by the courts of a criminal offence covered by the Sexual Offences Act 2003;
- has been found to have committed a sexual act following a ‘trial of the facts’.
A second possibility could be a serious breach of the House of Lords Code of Conduct, leading to a penalty imposed by the Lords Conduct Committee. Its sanctions range from short periods of suspension in minor cases to expulsion for the most serious breaches. The threshold could simply be expulsion: it would be strange for someone to be at risk of losing their peerage, while being re-admissible to the Lords after a period of suspension.
A major difficulty with these thresholds is that they do not catch peers who are disgraced but not convicted; or who decide to resign before they can be expelled from the House of Lords. One example is Lord (John) Sewel, who resigned from the Lords in 2015 after being filmed allegedly taking drugs with sex workers, but who the police subsequently decided not to prosecute. Another would be Lord (Nazir) Ahmed, who resigned from the House of Lords in 2020 after a recommendation from the Conduct Committee that he be expelled, but before it could be implemented. A third example could be Andrew Mountbatten-Windsor, who although removed from the Roll of the Peerage is still the Duke of York.
These examples suggest that in addition to objective criteria, such as a criminal conviction or professional censure, there must be a catch-all provision of bringing the peerage into disrepute. That is a subjective test already applied on occasion by the Honours (Forfeiture) Committee: Paula Vennells lost her CBE without having a criminal conviction or any professional sanction.
Framing the legislation 3: should it be retrospective?
A third question is whether the legislation should have retrospective effect. Should it catch Lord (Jeffrey) Archer of Weston-super-Mare (sentenced in 2001 to four years imprisonment for perjury), Lord (Conrad) Black of Crossharbour (sentenced in Chicago in 2010 to three-and-a-half years imprisonment for felony fraud and obstructing justice), or Lord (Nazir) Ahmed (sentenced to two-and-a-half years imprisonment in 2022 for sexual assault)?
The House of Lords Reform Act 2014 was not retrospective: section 3(4) provides that the provisions on automatic expulsion applied only to ‘an offence committed on or after the day on which this section comes into force’. But the House of Lords (Expulsion and Suspension) Act 2015 is partially retrospective: it can apply to conduct which occurred before the coming into force of the Act which was not public knowledge before that time.
Having explicitly stated that the primary purpose of the legislation is to strip Mandelson of his peerage, the government will want to ensure that he is caught even though the serious misconduct of which he is accused occurred in 2009. Partially retrospective provisions similar to the 2015 Act would allow that, because the misconduct has only recently become public knowledge; but they would not cover cases like Lord Archer, Lord Black or Lord Ahmed.
Final question: should the government be prioritising this?
The government is publicly committed to legislate to strip Mandelson of his title, by bringing forward legislation to ensure that peerages can be removed from disgraced peers. It may be difficult now for them to resile from this commitment, but three things might give them pause. The first is a question put to senior Cabinet Office minister Darren Jones by Conservative MP Luke Evans in the debate on 9 February:
I have missed something. Can he point to what he is bringing forward that would stop a Prime Minister from appointing a twice-sacked best friend of the world’s greatest paedophile?
In effect the question was the one asked at the start of this blog: what is the mischief here, and the solution? If it is now acknowledged that it was a mistake to appoint Mandelson as ambassador, how is this proposed solution going to avoid that kind of mistake in future?
The second thing which might give the government pause is that parliamentary time for legislation is a scarce and finite commodity. There is intense competition for slots in the legislative programme: time given to legislation on peerages means less time for action on other things. People have not been asked whether they would prefer the government to legislate on matters which come closer to their daily lives; but one small indication can be gleaned from Politico’s London Playbook on 10 February:
some of this Mandelson stuff can seem pretty remote. Playbook PM asked MPs in their constituencies last Friday whether that particular crisis was coming up on the doorstep, and the answer was a resounding no.
A third factor is the timeline going forward. Generic legislation will take time to prepare, and time in parliament, especially in the Lords: it seems unlikely to be passed until 2027. Whatever new machinery is established, due process may require awaiting the outcome of any criminal proceedings against Mandelson. The Leveson review of the criminal justice system reported earlier this month that some defendants are already being told their cases will not be heard until 2030. The press advisers in Number 10 may have thought it was going to be a quick fix to strip Mandelson of his title; to achieve the quick fix, they may have to revert to legislation which does only that.
In addition to this blog, Robert has previously written about how Andrew Mountbatten-Windsor might be formally deprived of his titles.
About the author
Professor Robert Hazell is the founder of the Constitution Unit and served as Director from 1995 to 2015.
Featured image: Lord Mandelson and Keir Starmer (CC BY-NC-ND 2.0) by UK Prime Minister.