Reform of the Lords – next steps

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The House of Lords should remain a repository of experience and wisdom, not become a launch pad for ambitious party politicians, says Professor Dawn Oliver of UCL

After many years of waiting, the House of Lords may finally be about to take its next small step on the road to reform. As a member of the Royal Commission on the Reform of the House of Lords 1999-2000, I am of course glad to see that some progress may finally be made. But at the same time I am alarmed that the reform under discussion – the so-called ‘Steel bill’ (named after its sponsor, David Steel) – may have unintended consequences that the Royal Commission went to significant lengths to guard against.

The Steel bill allows members, for the first time, to retire permanently from the House of Lords. So far, so good – there have been numerous complaints about the chamber getting too big (around 800 members), while some elderly peers would like to depart. But creating a voluntary route out of the House of Lords for the first time (the only exit at the moment, aside from for the bishops, being death) risks opening up a loophole. For, unlike the Royal Commission’s proposals, and those of numerous other groups since, there is no restriction in the Steel bill on those giving up their Lords seats running for the Commons. As Meg Russell of the UCL Constitution Unit – a respected expert on Lords matters – has pointed out, this creates perverse incentives with respect to future appointments.

The retirement provisions in the Steel bill implement one of the key recommendations in the Royal Commission’s report:

“Because of ill health or other reasons, members might conclude that they were no longer able to make a sufficient contribution to the chamber’s work to justify continued membership. We recommend that members should be able to retire. Retirement should, in our view, be irrevocable.” (Recommendation 75)

However, we immediately followed this with another recommendation:

“One question which arises from this recommendation is whether a person who stands down from the reformed second chamber should be eligible for election to the House of Commons. Given the type of membership we wish the second chamber to attract… we believe that movement of individual members from the second chamber to the House of Commons should be discouraged. Would-be career politician should not be encouraged to see membership of the second chamber as a springboard to membership of the Commons. We recommend, therefore, that members of the second chamber should not be eligible for election to the House of Commons for 10 years following [their departure]“. (Recommendation 76)

In making this proposal we were very struck by evidence from neighbouring Ireland, whose Senate has become a springboard for aspiring MPs, and a temporary bolthole for those who lose their seats and assiduously nurse constituencies until they are able to be elected again. This damages both respect for the Senate, which is seen as a refuge from or waiting room for the elected Dail, and its effectiveness.

The Steel bill, at least at present, seems oblivious to these dangers. And indeed, they are even greater today than they would have been had our recommendations been implemented in full. For creation of party peers still lies entirely in the hands of party leaders, who may see considerable benefits in appointing younger, more ambitious people to the Lords. The Royal Commission favoured ending party patronage, giving far greater powers to an independent Appointments Commission, which would have the final say over all appointments including party peers. Even given this enhanced role for the Appointments Commission, we felt that a ten-year waiting period was necessary, in order to avoid ‘unintended consequences’ or unexpected developments. Crucially, we also proposed that the 10 year disqualification for those departing commenced only “after their [fixed, 15 year] term of membership ends, whether or not they serve out their full term”. That is, following appointment to the second chamber, members would be disqualified from running for the Commons in total for 25 years. Again, the proposals in the Steel bill fall well, well short of this: as the bill is now drafted, there is nothing to prevent a member departing the Lords after only two or three years, and running immediately for the Commons.

Subsequent groups considering Lords reform in detail have consistently supported the thrust of our recommendation 76. It was echoed in a report of the House of Commons Public Administration Committee (PASC) in 2001, which recommended that “No member [i.e. elected or appointed] of the second chamber should be permitted to stand for election to the Commons for 10 years after leaving the second chamber”.

In 2005, a report from a cross-party group of MPs (led by Ken Clarke, Robin Cook, Paul Tyler, Tony Wright and George Young, and including a draft bill) concluded that:

“We believe that this [10 year limit] is probably overly restrictive, but support a compulsory five-year wait before a member is entitled to stand for the Commons. This is enough to avoid somebody seeking selection as a candidate while still in the second chamber, and then leaving in order to stand (or even having just been elected) in the forthcoming general election. We also believe, however, that there is a danger that this limitation alone would still allow people to serve a few years in the second chamber and then leave prematurely in order to pursue a career as an MP. We therefore agree with the Royal Commission that the restriction should apply not from the date of the member leaves the chamber, but from the date that their original term was due to end.”

Successive governments have to date supported this reasoning. Its 2007 White Paper on Lords reform stated that:

“To ensure that the complementary role of the House is enhanced it is important that an individual should not use his or her membership of the Lords to build a political base for a career in the House of Commons. The intention would be that the House of Lords should attract those who have wider interests outside politics, including among the members representing political parties. 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.”

Likewise, the proposals published by the coalition in 2011 included a similar (albeit distinctly weaker) proposal:

“The Government intends that the second chamber should continue to be a scrutinising and revising chamber, and should therefore attract individuals with different qualities from members of the House of Commons… The Government therefore proposes a time restriction to disqualify former members of the reformed House of Lords (except for the Bishops) from being elected to the House of Commons for [4 years] after they cease to be members”.

Not all of the proposals made in 2000 by the Royal Commission upon which I sat have stood the test of time (though others, such as the creation of the Joint Committee on Human Rights and the Lords Constitution Committee have been implemented with great success). But this proposal, regarding the necessity of protecting the current culture of the chamber and guarding against it becoming a training ground for the Commons has achieved virtual consensus. Until now, that is.

I am led to believe that the lack of safeguard in the Steel bill is an accident. It is perhaps nobody’s intention that future appointments to the Lords should be abused by party leaders to help ambitious members of the party to gain election to the House of Commons. But whatever the intention, that is the risk.

As regards what can be done, this is challenging. The bill as it stands might be tolerable, if party appointments were handed over to the Appointments Commission on the model that the Royal Commission originally proposed. Without this, I am fearful of the consequences. The best solution would therefore be to add a new clause to the bill along the following lines, as appeared in the government’s bill of 2011:

Restriction on former members being elected as MPs

  1. A former member of the House of Lords is disqualified from being elected to the House of Commons at an election if the day of the poll is in the disqualification period.
  2. The disqualification period is the period of [4*] years and 1 month beginning with the day on which the person ceased to be a member of the House of Lords.
  3. This section does not apply in relation to membership of the House of Lords as a Lord Spiritual.

* The 2011 bill provided for a waiting period of 4 years. Longer – 5 years (to match the new fixed term parliaments) or 10 years (as the Royal Commission proposed) – seems advisable.

Professor Dawn Oliver FBA is Emeritus Professor of Law at UCL, is author of numerous books on British constitutional matters, and was a member of the Royal Commission on the Reform of the House of Lords 1999-2000.

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