Rebuilding constitutional standards: five questions for the next Conservative leader

Boris Johnson yesterday fired the starting gun on a Conservative leadership race which should make the winner Prime Minister. Meg Russell, Alan Renwick and Robert Hazell pose five key questions which Conservative MPs and others are encouraged to ask the party leadership candidates, based on recent public, parliamentary and expert concerns.

Boris Johnson’s premiership has been marked by ever-growing concerns about the maintenance of various constitutional standards, which in recent days have reached fever pitch. These were echoed repeatedly in ministerial resignation statements and calls for him to go. Recent opinion polls meanwhile show strong public support for constitutional standards of integrity and accountability.

Conservative MPs now have an opportunity to choose among candidates to take Johnson’s place, which also creates an important constitutional responsibility. A high priority when picking the next Conservative leader should be to restore the standards essential to UK democracy, in order both to rebuild integrity in politics, and to work towards rebuilding public trust.

This blogpost sets out five key questions for Conservative leadership candidates, reflecting concerns raised by the public, independent expert organisations, and MPs themselves. Conservative MPs and others are encouraged to prioritise these questions, and raise them with the candidates when the party is making its choice.

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What can be done about the House of Lords?

More than 20 years has passed since the hereditary peers were removed from the House of Lords in what was billed as the first phase of wider reform, and little has happened in the intervening decades. The Unit hosted a webinar to ask three long-serving parliamentarians what should change about the House of Lords, and how realistic is hope of major reform? Tom Fieldhouse summarises the discussion.

House of Lords reform is one of those issues that never seems to go away – in part because very little ever seems to happen.  

This perennial, complex, and often contentious issue was the subject of a Constitution Unit webinar, held on 13 January, entitled ‘What can be done about the House of Lords?’, where a distinguished panel of parliamentarians discussed the difficulties that hinder reform, whether new approaches are needed, and what those might be. 

The event was chaired by the Constitution Unit’s Director, Professor Meg Russell, herself an expert on the question of Lords reform. Speakers were Baroness (Angela) Smith of Basildon, Labour’s Shadow Leader of the House of Lords; Lord (Michael) Jay of Ewelme, Crossbench peer and former Chair of the House of Lords Appointments Commission; and Sir Bernard Jenkin MP, Conservative chair of the House of Commons Liaison Committee and former chair of the Public Administration and Constitutional Affairs Committee (PACAC), which has reported on Lords reform

The summaries below are presented in the order of the speakers’ contributions. The video of the full event, including a lively and informative Q&A, is available on our YouTube page, while the audio version forms a Unit podcast.  

Baroness Smith of Basildon 

Baroness Smith began her remarks by suggesting that whereas most debates about Lords reform tend to focus on ‘form’ (namely, who is in the second chamber and how they get there), we should begin by focusing on ‘function’ (what we want the chamber to do, and how it can best achieve that).  

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The House of Lords is too large: party leaders must put aside short-term interests and agree plans to reduce its numbers

Five years after its creation, the Lord Speaker’s committee on the size of the House has called for firm, fast action on reducing the number of peers in the legislature. Chair of the committee, Lord (Terry) Burns, argues that it is essential that party leaders have the courage to come together and agree the necessary measures. 

To mark the retirement of Lord (Norman) Fowler as Lord Speaker, the committee he set up to make recommendations on reducing the size of the House of Lords recently published its fourth report. I have had the intriguing task of chairing the committee, which was ably advised by the Constitution Unit’s Director, Meg Russell.

The House of Lords has too many members

There have been over 1,500 life peers appointed since the enactment of the Life Peerages Act 1958. Of those, just over 800 have now died or retired. The net result is a House today consisting of some 700 life peers, 92 hereditary peers (there are currently vacancies because several by-elections were postponed due to the pandemic) and 26 bishops. The numbers for hereditary peers and bishops are both set by legislation, and it follows that changes to the overall size of the House are now determined almost entirely by increases or decreases in the number of life peers – which is not limited by statute or convention.

During the first 30 or so years of life peerages, there were an average of 20 appointments per year, which has since risen to 30 per year. The average age at appointment has been reasonably steady at 60, with a small decline in recent years.

There were relatively few leavers in the early years owing to the small size of the group of life peers, but over the past 30 years the average number has been close to 20 per year. The average age of leavers has risen over time, reflecting increased life expectancy, and has stood at a little over 80 in recent years.

The House was greatly reduced in size by the 1999 reforms, which removed hundreds of hereditary peers, but concerns have been raised during the past 10 years about its increasing size as the number of life peers rose above 700 and the total number of members moved back above 800. Several relatively small legislative changes have been introduced allowing for retirements and excluding members after a period of non-attendance – but all attempts to change the composition of the House have foundered.

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Boris Johnson’s 36 new peerages make the need to constrain prime ministerial appointments to the House of Lords clearer than ever

meg_russell_2000x2500.jpgBoris Johnson’s long-awaited list of new peerage appointments was published today, and includes 36 names. Instantly, by appointing such a large number of new members to the Lords, Johnson has undone years of progress in trying to manage the size of the chamber down – returning it to over 800 members. Here, Meg Russell, a leading academic expert on the Lords and adviser to two different parliamentary committees on the chamber’s size, analyses the numbers – showing the detrimental effects on both the chamber’s overall membership and its party balance. She argues that Johnson’s new peerages make it clearer than ever that constraints must be placed on the Prime Minister’s power to appoint to the Lords.

News reports about Boris Johnson’s first major round of Lords appointments have focused largely on personalities – the appointment of cricketer Ian Botham, the return to the fold of Conservative grandees such as Ken Clarke and Philip Hammond, who Johnson stripped of the party whip last year, and his reward of former Labour Brexiteers. But while some of these names may be notable, the bigger and more important issue is how Johnson’s new appointments will affect the Lords as a parliamentary chamber, and how they show up – yet again, and powerfully – the problems with the largely unregulated appointment process.

It is remarkable that in 2020 there are still no enforceable constraints on how many peers a Prime Minister can appoint to the second chamber of the UK legislature. Formally appointments are made by the Queen, but convention requires her to act on prime ministerial advice. The Prime Minister can choose when to appoint, how many to appoint, and what the party balance is among new members. A House of Lords Appointments Commission (HOLAC) was created in 2000, but has very limited power. It merely vets the Prime Minister’s proposed nominees for propriety (e.g. ensuring that their tax affairs are in order), and recommends an occasional handful of names for appointment as independent members. It can do nothing to police the numbers, or even the broader suitability of the PM’s own appointees. In theory, a Prime Minister could simply appoint hundreds of members of their own party (indeed, during the Brexit debates there were threats to do so both from the now Commons Leader Jacob Rees-Mogg and from Johnson himself). Appointees could even all be personal friends of the Prime Minister. The sole constraint is HOLAC’s propriety check (which is rumoured to have angered Johnson by weeding out some of his nominees) and any fear of media or public backlash. This unregulated patronage is one of the last vestiges of pure prime ministerial ‘prerogative’ power. Following last year’s Supreme Court case, even the previously unregulated power to prorogue parliament now exists within some legal constraints.

Aside from general concerns about patronage, there are two main interconnected problems caused by unregulated appointments on the House of Lords. First, the ever growing size of the chamber. Second, the lack of any rational basis for its party balance.  Continue reading