David Steel’s Lords reform bill (previously sponsored in the Commons by Dan Byles) had its second reading in the chamber on Friday. Last night the Constitution Unit and Constitution Society jointly hosted a meeting in the Lords to discuss concerns about the bill. Its main provisions – allowing peers to retire, and for the expulsion of serious criminals – have been widely welcomed. But concerns have been raised about the detail, and possible unintended consequences, by the Unit’s Meg Russell and various others (in addition to the links below, see here). The meeting was addressed by David Steel and Meg Russell, and chaired by Ruth Fox of the Hansard Society. The text below is an edited version of Meg Russell’s speech, summarising her concerns.

Audio recording of Dr Meg Russell’s speech and Lord Steel’s response from the event held on 1st April 2014

I should start by saying that I regret that this discussion is happening for two reasons. First, because I have become a proponent of incremental Lords reform. As I have frequently written and said, including in my book last year, history tells us that large-scale Lords reform invariably fails, but that incremental changes can both succeed, and be important. I have also emphasised how urgent it is to get on with the next, small steps. Second, because I am an admirer of David Steel – in part, obviously, for his tenacity on this issue. So I have no desire to make his life, or his task, more difficult.

Nonetheless, I have very real concerns about the likely unintended consequences of his bill. I wholeheartedly welcome the opportunity for peers to retire, and the expulsion of criminals. But my concern is with clause 4, subsection 5 of the bill, which reads (in the context of a section titled “Effect of ceasing to be a member”):

If the person is a peer other than a hereditary peer, the person is not, by virtue of that peerage, disqualified for—

(a) voting at elections to the House of Commons [so far so good…], or

(b) being, or being elected as, a member of that House.

My concern, in short, is that the Lords will become a training ground for future members of the Commons. This change will be inadvertent, at least on David’s part, and may be gradual, but I believe it is a virtual certainty.

It has not been comfortable to step in and raise these problems. I am very aware of the timing difficulties, this being a private member’s bill, now nearing the end of the session. I thought carefully whether I should raise the concerns at all. But my work for the last 16 years has included providing objective, evidence-based advice about the prospects for Lords reform, and crucially its detailed implementation. So it would seem a dereliction of duty not to explain what the evidence suggests about David’s bill. I have no vested interest whatsoever in expressing these concerns. My sole motivation is that I think them serious and important. It is a basic principle of good policy-making, usually adhered to in the Lords, that people should take decisions carefully, in the light of the available evidence.

So I would like to present five bits of evidence that indicate a problem. I will then briefly say a word about timing, then try to end more constructively, on what can be done.

The first bit of evidence relates to the consequences of the 1999 reform. I have written extensively about this, and how it strengthened the Lords by making it a more confident and assertive institution. But few people predicted such an outcome. I hardly think Tony Blair, in legislating to remove most hereditary peers, envisaged that the new chamber, stripped of hundreds of Conservative legislators, would make it harder to get his policy through. Indeed, he almost certainly believed the reverse, as did many commentators at the time. So the first lesson is that reform can have major unintended consequences, even when quite clever people have tried to think it through.

The second bit of evidence is related. As my book describes, that reform had immediate consequences, in terms of party balance, and thereby assertiveness; but it had equally important longer-term effects, in changing the types of people appointed. And this is the central problem with David’s bill. No one suggests that lots of peers are poised to jump ship and run for the Commons. After all, current members took their peerages knowing they would be barred from standing for election. The real difference comes in those appointed after the bill has passed. Party leaders will no longer have to rule out those who might consider a future Commons career, and when such people are offered peerages they will not need to rule themselves out, either. They might try the Lords for a few years, get a taste of parliament, and then run for the Commons. It could certainly suit party leaders to appoint such people, who would be more controllable than current peers. But it would clearly change the Lords fundamentally, bringing in more political point-scoring, local campaigning, and so on. As I say, the 1999 reform has already changed the type of people appointed, with fewer party grandees and far more emphasis on active service. So in some ways this could even seem a natural next step.

Some people suggest that these projections are far-fetched. But the third bit of evidence, about the profile of today’s party peers, suggests otherwise. Around 30% of them are former MPs. An additional 30% have stood for the Commons sometime in the past. So 60% of party peers have at one time fancied a Commons career. The crucial point is that they now have to renounce such ambitions before entering in the Lords. Under David’s bill, that would cease.

The fourth bit of evidence relates to other parliaments. Our centuries-old tradition is that political careers can start in the Commons and move to the Lords, but not the other way around. Some countries are not so fortunate. The key example is Ireland, where respected political scientist Michael Laver describes the Senate as ‘a convenient berth for political hopefuls on the way up (or down) or for those who consider themselves to be “resting” from the Dáil following what they hope will be a temporary election setback’. Irish MPs who lose their seats can use a place in the Senate to retain an income and public profile, while nursing a constituency to run again. As Laver says ‘It gives the impression of the Senate as a kind of political second division, to which fading stars can be relegated and from which rising talent can be promoted’. This feeds public cynicism about the Senate, and reduces its effectiveness.

The fifth bit of evidence is more concerned with how these other points have previously been viewed. To avoid such problems occurring in the UK, the Royal Commission on House of Lords Reform recommended a 10 year cooling off period before those departing the Lords could run for the Commons. This basic principle was later reiterated by the Commons Public Administration Committee, by a cross-party group of senior MPs co-ordinated by Paul Tyler, and crucially by the government. So the 2007 White Paper stated that ‘To counteract the possibility of members using the House of Lords to build a political base, members who have held a seat in the House of Lords should be prevented from seeking election to the House of Commons for [5 years] after their Lords’ term expires’. Nick Clegg’s 2011 White Paper said something very similar. His bill included a four year cooling off period. David’s bill, of course, does not.

Turning to timing, it is doubtless troublesome to raise these concerns now. But they have been raised consistently ever since it became clear this bill might actually reach the statute book. The lack of a cooling off clause was one of the main objections at Commons second reading in October, and the bill’s then sponsor Dan Byles responded that ‘we could consider whether some small amendment might be made in committee’ to resolve the problem. When I myself spoke in early January to one of the bill’s main organisers, Philip Norton, he indicated that a committee stage amendment was coming. It did not. I and others then raised the concern before Commons report. Ministers clearly considered an amendment, but for some reason decided against. By then the bill’s supporters had come down against the idea. I am genuinely mystified why. To me this was a very unfortunate error.

But we are where we are, so what can be done?

As I have pressed throughout, and former Royal Commission members have echoed, the only sure solution is an amendment inserting a cooling off period, as appeared in the Clegg bill. By now the only realistic means of achieving this is probably for David to move an amendment with government support. But it is clear that he does not want to. In terms of whether an amendment would kill the bill, this is debatable. In short, if the government wants the bill enough it can happen. Only a tiny corner of Commons time would be needed to put it through in amended form.

But if not an amendment, some have sought government assurances that the new patronage powers in the bill will not be used opportunistically by party leaders, and that if they are, further legislation will follow. This was the clear position of the Lords Constitution Committee. It was pressed during the bill’s second reading in the Lords on Friday by former Appointments Commission chair Lord Jay, supported by Baroness Hayman, and also by Lord Haskel. Any assurances are clearly unenforceable, but even what was offered at the end of the debate was very weak. Lord Hill simply said that ‘were that to become a problem in the future, we would want to review the situation. There is always an option to legislate to sort it out’. Yes, of course there is always an option. But would it be used? The assurances from Labour were even weaker.

Another viable solution would be empowering the Appointments Commission to vet party peers. Unlike Crossbench candidates, party nominees are not interviewed by the Commission about their commitment to the Lords, and it can only reject them on grounds of propriety, not suitability. So John MacGregor, who dismissed these concerns on Friday, was wrong to suggest that ‘The Appointments Commission would obviously be asking questions’ of such candidates. It has no power to do so. Lord Norton, speaking via Patrick Cormack, suggested that ‘It could be brought within the remit of the Appointments Commission, in examining every nominee of a party leader’. I agree that this would help sort out the problem, and indeed have argued for years that regulating appointments is far the most urgent small-scale Lords reform. But where are the assurances on this? We have had precisely none.

David said in his opening speech in the debate on Friday that he believed concerns from myself and others on this matter were “somewhat fanciful”. I hope I have demonstrated that this is not the case: these concerns are not frivolous, they have been expressed for years, and by very serious people. But if we are to trade adjectives, I think the ones I would use to describe what the bill’s promoters are doing might include “overoptimistic”, “ risky”, or perhaps even “reckless”. There is a real danger that in seeking a short-term gain for the Lords today, peers leave bigger long-term problems for their institution. That is clearly not what I want to happen, and it’s also not what I want David to be remembered for. So even at this late stage I hope that a more convincing solution can be found.