The Lord Speaker’s Committee on the Size of the House of Lords, has recommended moving to a chamber of no more than 600 members, appointed for 15-year terms. This follows years of controversy about the growing size of the Lords, which currently stands at over 800. In a post originally published on The Constitution Unit, Sir David Beamish, formerly the most senior official in the House of Lords, argues that the proposals offer the best opportunity for years for some small progress on the knotty issue of Lords reform.
The recommendations of the Lord Speaker’s Committee on the Size of the House of Lords offer the best opportunity for many years to reform the membership of the House of Lords in a way that can – and should – achieve sufficient consensus across the political spectrum. The committee’s recommendations for reform without the need for legislation are both thoughtful and ingenious.
House of Lords reform has usually been stymied by lack of agreement on what should replace the existing second chamber. It has generally proved impossible to get a majority for any one proposed reform. The most striking exception was the removal of some 650 hereditary peers in 1999, thanks to the 1997 Labour manifesto having included a specific commitment. But that was billed as the first stage of a two-stage reform, and that second stage remains elusive.
The 1999 Royal Commission on Reform of the House of Lords, chaired by Lord Wakeham, undertook what might be called a ‘zero-based review’ of the second chamber, looking at what functions were appropriate to a second chamber, what powers were needed to perform those functions, and only then how the second chamber should be constituted. It was affirming for the House of Lords that the recommendations on functions and powers were generally for little change – a proposal for a Constitution Committee was quickly implemented without awaiting wider reform – and ever since then the debate on Lords reform has focused primarily on composition. The issue of powers resurfaced briefly after the House upset the Conservative government in October 2015 by failing to approve the Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations, leading to a review by Lord Strathclyde of the Lords’ powers in relation to secondary legislation. However, the Brexit referendum led to a change of priorities, and Lord Strathclyde’s proposals were put on the back burner. With the government’s loss of its Commons majority in June 2017, it seems unlikely that those proposals could now be implemented even if the government wished.
Against a background of no likelihood of major Lords reform in the next few years, the impact on the House of large numbers of appointments of life peers by successive prime ministers (with the honourable exception of Gordon Brown) became a matter of serious concern to members. The increase in numbers led to increased costs, pressure on resources (including seating in the chamber – attendance at prayers boomed when members realised that that was the only way to be sure of a seat at question time), and a significant negative impact on the House’s reputation.
On 5 December 2016 Lord Cormack introduced a debate on a motion ‘to resolve that this House believes that its size should be reduced, and methods should be explored by which this could be achieved’. The motion was agreed to without a vote, and the Lord Speaker’s Committee on the Size of the House, chaired by Lord Burns, was the result. This is a novelty for the House of Lords: there have been several ‘Leader’s Groups’ since the early 1970s, appointed by the Leader of the House, but the Leader’s position as a cabinet member makes that approach less suitable for this subject, and Lord Fowler’s innovation is a welcome one.
The committee’s report took as a starting point the likelihood that any proposal needing legislation would founder at some point, even if the government found time for such a bill. The failure in 2012 of the ‘Clegg’ bill on House of Lords reform illustrates the point.
Accordingly the committee have come up with a plan which must offer the best chance of capping the size of the House in the short and medium term. (I should note here that I was an adviser to the committee, but claim no credit for the committee’s proposed way forward.)
In short, thanks to the statutory retirement mechanism which has been available since 2014, the committee envisages that each of the three main parties in the Lords, and the Crossbenchers, should over several five-year periods meet targets for reducing their numbers, with new appointments on a ‘two-out, one-in’ basis until the size of the House has gone down from around 800 to 600. Future appointments will be allocated to parties on the basis of the average of the percentages of seats won, and votes cast, at the latest general election. Peers appointed in future will be required to agree to retire after 15 (or perhaps 20) years. A breach of that undertaking would lead to the expulsion of the peer under the powers given to the House by the House of Lords (Expulsion and Suspension) Act 2015.
The mechanics of the operation of the targets may be complicated, but the clever thing about the proposal is that there is something in it for everyone, and thus there must be a good chance of its achieving something near consensus in the House. A leading article in The Times on 17 October, following an apparent leak of elements of the committee’s report, suggested that there should be an age limit of 80, but that approach overlooks the need to find a way forward which is widely acceptable: the Liberal Democrats have 100 members in the Lords, generally younger than Conservative and Labour peers, so an arrangement which had less effect on their numbers would be unlikely to be acceptable outside the Liberal Democrat benches.
For me the one disappointment in the report is that it addresses the question of membership of the House for retired Supreme Court judges. That is a more controversial topic, and peripheral to the subject matter of the report. The committee’s main recommendation is that all Supreme Court judges should be made peers on appointment. Under the Constitutional Reform Act 2005 they are disqualified from participation in House of Lords proceedings until retirement, after which the committee recommends that they should serve in the House of Lords for a maximum of seven years. That proposal seems unduly complicated and I hope that it will not cause a distraction from the committee’s main recommendations.
The committee has done much better in relation to the thorny question of hereditary peers’ by-elections. It is amusing to recall the words of the then Lord Chancellor, Lord Irvine of Lairg, in October 1999, when moving the amendment to the House of Lords Bill to provide for such by-elections after the end of the first session of the next parliament (until when vacancies were to be filled by runners-up in the 1999 elections):
‘The transitional House will be of short duration, but let us proceed on the hypothetical assumptions that it might last for more than two or three years and that the “fastest loser” system might have outworn its effectiveness by that time. That being so, our amendment provides that after such time any vacancy due to the health of an elected excepted Peer should be filled by means of a by-election.’ (House of Lords Hansard, 26 October 1999, column 169)
The holding of these by-elections has become increasingly embarrassing – there is always good material for the press in the form of the wackier candidature statements put forward – but a vocal minority of hereditary peers oppose any ending of the by-elections in the absence of second-stage reform of the House, and any change would require legislation. The Burns Committee has ingeniously avoided making any recommendation in relation to by-elections, while noting that the continuation of by-elections would mean that the hereditary peers would ‘make up a larger proportion of a smaller House, with a particularly significant impact on the Conservatives and Crossbenchers.’ That fact may finally tip the balance and enable the passage of legislation to end hereditary peers’ by-elections.
Notes
Sir David Beamish was Clerk of the Parliaments, the most senior official in the House of Lords, from 2011 to 2017. He is an Honorary Senior Research Associate at the Constitution Unit. Sir David Beamish was an adviser to the Lord Speaker’s Committee on the Size of the House of Lords. This post is written in a personal capacity.
This post was originally published on The Constitution Unit website and is reposted with permission.