House of Lords reform: battle is joined again

New government, new reforms of the House of Lords, but Starmer has scaled back his ambitions and is left with no real prospect of improvements

Trying to reform the Lords

I have written several times about House of Lords reform in its various aspects. Partly it’s a subject that interests me, as I am one of those strange people who interested in, cares about and has strong views on the constitution; partly it’s because one of the things I did when I was a clerk in the House of Commons was work on the Joint Committee on the Draft House of Lords Reform Bill; partly it’s because I’m also an historian and the development of the upper house is a fascinating and complex subject; and partly it’s because one of the things that reliably annoys me is seeing public policy executed badly and illogically.

There is a basic truth about reforming the House of Lords that all politicians and commentators who engage with the subject ought to acknowledge: it’s hard. A reason for this is that most people who take a view can agree that the function and composition of the second chamber of Parliament is currently unsatisfactory (I am an outlier: I think it broadly does a reasonably good job of scrutiny and if there were a moratorium on changes to it for 10, 15 or 20 years I would be perfectly relaxed). However, consensus that there should be change does not in any way equate to agreement on what that change look like, which means that it is often possible to find as many different visions of a reformed House of Lords as you have interlocutors. This tends to be a recipe for gridlock and stasis.

The classic example of how a lack of shared vision can bring the process of reform to a shuddering halt is the fate of the Parliament (No. 2) Bill introduced in December 1968 by Harold Wilson’s Labour government. This drew on a White Paper published the previous month, House of Lords Reform (Cmnd. 3799), and proposed a voting membership of existing life peers, hereditary peers of the first creation and 16 Church of England bishops, hereditary peers by succession becoming non-voting members and their heirs being excluded from the House, and the incumbent government having a right to a majority of the voting membership. It was an unloved measure, as Wilson himself conceded when he spoke in the Second Reading debate in February 1969, although he tried to suggest that it was “overdue modernisation” rather than revolution”.

The bill was opposed most fiercely from opposite ends of the ideological spectrum. Michael Foot (Lab, Ebbw Vale), a radical left-winger, hated the idea of a “second Chamber selected by the Whips” and dismissed the idea vividly as “a seraglio of eunuchs”. By contrast, Enoch Powell (Con, Wolverhampton South West) was a profound traditionalist when it came to Parliament, and had even opposed the Life Peerages Act 1958. The two men, brilliant thinkers steeped in history and persuasive orators, agreed that they had no time for Wilson’s proposal and used every procedural avenue to frustrate its passage, and by April 1969, seeing the lack of support for the bill, the prime minister announced that it would go no further, in order to make legislative time for other more pressing measures.

Current measures

Last week, Pat McFadden, chancellor of the Duchy of Lancaster and minister for the Cabinet Office, introduced the House of Lords (Hereditary Peers) Bill to the House of Commons, where it is scheduled to receive a Second Reading on 15 October. It is a very short, five-clause bill with limited provisions: it excludes the 92 “excepted” hereditary peers remaining in the House under the terms of the House of Lords Act 1999, as well as abolishing the jurisdiction of the House over claims to hereditary peerages. It will, if it becomes law, come into effect at the beginning of the session after the one in which it is passed, which means, if the government has its way, that the House of Lords as of the next session of Parliament (presumably 2025-26) will consist wholly of appointed life peers and the 26 bishops of the Church of England who are entitled to sit in Parliament.

This is new constitutional territory, a second chamber almost wholly appointed by governments of all parties going back more than 40 years (the longest serving life peer is Baroness Cox, then director of the Nursing Education Research Unit at Chelsea College, University of London, who was nominated by Margaret Thatcher and introduced on 2 March 1983). It is not what the Labour Party initially promised. In 2021, Sir Keir Starmer appointed former prime minister Gordon Brown to lead a Commission on the UK’s Future which produced a report in December 2022 entitled A New Britain: Renewing Our Democracy and Rebuilding Our Economy. It recommended a radical proposal to abolish the existing House of Lords entirely and replace it with an Assembly of the Nations and Regions, which would scrutinise legislation and government policy, bring together “the voices of the different nations and regions of the UK at the centre of government” and exercise “new but precisely drawn powers to safeguard the constitution of the United Kingdom and the distribution of power within it”. The report envisaged a chamber of around 200 members, elected on “a regional basis across the United Kingdom” and on a different electoral cycle from the House of Commons.

At first, Starmer embraced Brown’s major reforms and committed to putting them into effect in the first term of a Labour government. By the summer of 2023, this commitment had become an aspiration, and the party’s leader in the House of Lords, Baroness Smith of Basildon, warned that Labour might need to appoint dozens of new peers under the existing system to ensure a new government could get its legislation through the upper house. In October, Labour made it known that wholesale replacement of the Lords would be a matter for a second term in government, and that a first term would see more limited changes to cap the number of peers appointed and strengthen the powers and independence of the House of Lords Appointments Commission. This was confirmed in February this year, with sources explaining that economic policy would take priority in the first parliament of a Labour government. However, just before the general election, Starmer added a new proposal, a retirement age of 80 for peers, though they would be allowed to remain members until the end of the parliament in which they reached the maximum age.

None of these reforms is actively proposed at the moment. The only changes in the immediate future are those in the House of Lords (Hereditary Peers) Bill. I argued recently in The Spectator that it is a miserable little bill, completing the exclusion of the hereditary peerage begun in 1999 but doing nothing else and therefore quite contrary to the spirit of the agreement reached by Sir Tony Blair and Viscount Cranborne, then Conservative leader in the Lords, to allow 92 hereditary peers to remain after “stage one” reform as a token of goodwill and a commitment to revisit the issue of the House of Lords with a more comprehensive programme.

Whatever your view of the House of Lords, it is very hard to argue that the current bill does anything to enhance the credibility or legitimacy of the second chamber. One could argue that, in a perverse way, it actually diminishes it: the hereditary peers, as the original cadre dies off, are in fact elected to their places in the Lords, albeit by and from a very narrow electorate of other hereditary peers, but it is a more direct mandate, minor and abstruse though it might be, than that held by any life peer.

More broadly, I have long thought that to approach reform of the House of Lords firstly from the perspective of composition is mad, and certainly approaching it in terms of who should not be in it is a farce. How can one make sensible decisions on composition without considering the function and powers of a second chamber? I strongly disagree with Gordon Brown’s proposal of an Assembly of the Nations and Regions, but, characteristically, he had at least considered it carefully and logically, and set out a coherent proposal for a chamber of parliament.

Removing the hereditary peers affects the party balance of the House, of course. The 1999 act provided that 75 of the 90 peers should be elected according to the composition of the House at that point, which meant that they comprised 42 Conservatives, two Labour peers, three Liberal Democrats and 28 crossbenchers, while 15 were to be elected by the House as a whole. Currently there are 45 Conservatives, four Labour, four Liberal Democrats, 33 crossbenchers and two non-affiliated hereditary peers. For reference, the composition of the Lords as a whole at the moment is as follows:

Conservatives: 276
Labour (including Labour & Co-operative): 185
Crossbench: 184
Liberal Democrat: 79
Non-affiliated: 41
Bishops: 25
Democratic Unionist Party: 6
Ulster Unionist Party: 3
Green Party of England and Wales: 2
Plaid Cymru: 2
Conservative Independent: 1
Lord Speaker: 1

Evidently, then, the removal of the hereditary peers would reduce the Conservative strength to 231 and Labour to 181, so the government would still not be the largest group in the House but their disadvantage to the main opposition party would be greatly reduced. And, as Baroness Smith has said, the Labour Party may yet nominate a substantial number of peers to rebalance the composition of the House, although shortly before the election she denied that there was “any room for having a massive increase in the number of Labour peers”. She stated that “I can tell you a Labour government would not appoint hundreds of new peers”, and that she would like to see Labour and the Conservatives with “roughly equal numbers”. That would still necessitate the creation of another 50 Labour peers.

Labour’s manifesto for the general election, while it did not include the most radical ideas Sir Keir Starmer had initially endorsed, described reform of the House of Lords as “long over-due and essential”. It included five specific ideas: removing the remaining hereditary peers; a mandatory retirement age for peers meaning that “at the end of the Parliament in which a member reaches 80 years of age, they will be required to retire from the House of Lords”; “a new participation requirement” to exclude peers whose parliamentary activity falls below an as-yet-undisclosed threshold; measured aimed at “strengthening the circumstances in which disgraced members can be removed”; and reforming the system by which peers are nominated to the House of Lords. The last two of those are valid proposals.

(On the abandoned commitment to abolish and replace the Lords, policy was battered into submission until it limped into the manifesto in a weak, non-committal form: “Labour is committed to replacing the House of Lords with an alternative second chamber that is more representative of the regions and nations. Labour will consult on proposals, seeking the input of the British public on how politics can best serve them.” Good luck with that.)

At this point it is worth making an observation which is frequently expressed but remains important. If you were to start with a blank sheet of paper and design a second chamber of Parliament—as Gordon Brown’s commission did, in effect—whatever proposals you produced would not resemble to current House of Lords. Even the most institutionally conservative mind would not devise a body which is overwhelmingly appointed on the recommendation of the government of the day, with certain allocations to opposition parties, the crossbenches and genuine independents. If you believe in a big bang abolition, that’s intellectually respectable and defensible, and good luck to you, though you will find, as constitutional engineers have for centuries, that someone representing the same electorate in two different ways and perhaps for two different purposes without building competition and conflict into the system is not easy. Moreover, you will be hobbled by the fact that you are dealing only with one half of the legislative process, while there seems very little appetite for significant reform of the overall powers and role of the House of Commons.

(There is now a revived Modernisation Committee which will be chaired by the leader of the House, Lucy Powell. Its remit, however, is to consider reform of the House’s “procedures, standards, and working practices”, or in other words the “how” of the elected chamber rather than the “what”. If you really wanted to construct a coherent and intelligible new legislative system, you would have to address to role and powers of both Houses, and believe me when I tell you there is never any appetite for that among MPs.)

If, like most mainstream politicians and certainly the two main parties as things stand, you are considering the reform of the House of Lords, then you have to acknowledge that we start from where we are, not from where we might like to be. What I will do, therefore, is deal briefly with each of the government’s concrete proposals.

Removal of the remaining hereditary peers

I’ve largely addressed this. On its own, it is in one sense completing the “unfinished business” of the 1998 act, but it does so by abandoning the promise implicit in the Blair/Cranborne compromise, that the 92 excepted hereditary peers would remain until “stage two” reform was brought about. Now the government intends to remove the hereditary peers without any explicit further measures of reform, which was exactly what the original deal was intended to avoid. As a stand-alone measure, then, I think it is inadequate, of no great practical merit (the excepted hereditary peers are at least as active and engaged as their appointed counterparts) and does nothing to make the House more accountable or democratic, even if that is your ambition. It is being undertaken because the government knows it can do it and because it will marginally tip the composition of the House in its favour. If it ends up being the only measure of reform effected in this Parliament, an outcome I think is quite likely, it will be a cheap little enterprise.

Mandatory retirement age

This I find a silly and superficial measure. The newly ennobled Baroness Harman recently endorsed it, which is noble enough (excuse the pun) as she is already 74 and has only just taken her seat. Under normal circumstances she would turn 80 in the next parliament so would leave the Lords in 2033 or 2034, a rather truncated career. Another argument against it is that peers who hold judicial office do not normally retire from those positions until 75 under the provisions of the Judicial Pensions and Retirement Act 1993 and the Public Sector Pensions and Judicial Offices Act 2022, while the section 137 of Constitutional Reform Act 2005 disqualifies the holders of judicial office from participation in the House of Lords. So retired judges, whose expertise and experience we presumably value, will not be able to take their seats until they are 75 and would then have a relatively narrow window of five years or so in which to contribute to the legislative process.

More broadly, though, this seems a measure aimed at reducing the size of the House (to which I shall return) rather than addressing a real problem of peers participating when they have become mentally incompetent or incapable. Roughly a fifth of the House currently comprises peers over 80, so excluding them would represent a substantial reduction in headcount. On the other hand, their number includes, to take a few examples at random: Lord Dubs (Lab, 91), who has campaigned energetically for the rights of asylum-seekers and refugees after coming the Britain on a Kindertransport in 1939; Lord Heseltine (Con, 91), former deputy prime minister with almost 15 years’ experience in cabinet under Margaret Thatcher and John Major who is still active on a number of issues including regeneration and regional policy; Baroness Jay of Paddington (Lab, 84), former leader of the House and later chairman of the Constitution Committee; Lord Winston (Lab, 84), one of the world’s leading experts in fertility and human reproduction; Lord Campbell of Pittenweem (Lib Dem, 83), a former party leader with enormous experience in foreign affairs and defence who led the UK’s delegation to the NATO Parliamentary Assembly for a number of years; Lord Rees of Ludlow (CB, 82), currently astronomer royal and former president of the Royal Society; Baroness Blackstone (Lab, 81), former minister, master of Birkbeck College and vice-chancellor of the University of Greenwich.

You might argue that the loss of this experience is a price worth paying, but I simply don’t see the mischief which the exclusion of those over 80 would address. If a peer is incapable of fulfilling his or her parliamentary function because of age, that peer will generally not attend or participate, and therefore costs the taxpayer nothing and makes no demands on the services of the House. It might also be noted that a retirement age of 80 would apply to and exclude, if they were members of the House of Lords, Pope Francis (87), acting prime minister of Bangladesh Muhammad Yunus (84), President Michael D. Higgins of Ireland (83), President of Italy Sergio Mattarella (83), President Joe Biden of the United States (81) and President of Austria Alexander van der Bellen (80).

Participation requirement

The Labour Party manifesto gave no details of what a proposed participation requirement for peers might be. Under the terms of the House of Lords Reform Act 2014, peers who do not attend the House during a parliamentary session ceases to be a member at the beginning of the following session. That is, certainly a very modest requirement, and only 16 peers so far, including Lord Prescott, Lord Archer of Weston-super-Mare and Lord Black of Crossharbour, have been removed on that basis (of whom three died within a year of losing their membership, their non-attendance being due to illness or old age).

I am fundamentally opposed to a participation requirement because it defeats what is for me one of the best aspects of the House of Lords, which is that it is not a body of full-time legislators. Rather, the Lords represents a central cadre of working peers and an additional pool of expertise which can be drawn upon when necessary. Take, for example, the practice of ennobling former chiefs of the Defence Staff, of whom six are currently members of the House of Lords. Their contributions to debates on defence, foreign affairs, national security and other related matters are likely to be enormously welcome, and they may have other interests such as education, health or welfare. But the logical result of a participation requirement would be that these formed generals, admirals and air marshals take part in a certain number of debates to meet a threshold, rather than because they have expertise or experience to contribute.

The brilliance of a very low participation requirement is that peers can be appointed to the House for their eminence in a single, perhaps relatively narrow field and they can bring that eminence to bear in debates or on committees when it is relevant. Otherwise they need not make up the numbers. In addition, the fact that peers do not receive a salary but are paid a flat-rate attendance allowance of £361 per day means that peers who do not attend do not cost the taxpayer anything. A pool of available expertise, paid only when they actively engage: that seems to be a very effective way to provide legislators for detailed scrutiny. A participation requirement is the exact opposite, requiring presenteeism and making up the numbers.

Removal of members

I am much more sympathetic to arguments in favour of making it easier to remove peers who should no longer be members for reasons of misconduct, illegality or other unacceptable behaviour. The current situation is this: under the House of Lords Reform Act 2014 (above), peers can be removed for non-attendance, and for receiving prison sentences of a year or more. The House of Lords (Expulsion and Suspension) Act 2015 further empowers the House to suspend or permanently expel members: the Committee for Privileges and Conduct must table a motion to expel on the grounds of breaching the Code of Conduct.

I don’t suggest that this is an urgent matter. The reforms of 2014 and 2015 substantially expanded the powers of the House to deal with members who fell below the expected level of behaviour in whatever regard, and it is worth remembering that no peer has yet been expelled; Lord Sewel resigned in July 2015 facing severe criticism after a scandal involving prostitutes and cocaine, while Lord Ahmed resigned in November 2020 before a report recommending his expulsion could be debated. There have been calls for the expulsion of Baroness Mone, who is on leave of absence and is currently being investigated by the National Crime Agency for fraud, but the case against her is ongoing. If it results in a criminal conviction, it is very likely the House would seek to expel her but to do so while the investigation is ongoing would be obviously premature.

If the government has a good case for giving the House additional powers to remove members, then that should be considered. It is not necessarily a controversial idea—but we should not imagine either that there is currently no mechanism for this.

Reforming the nomination process

This is an area in which reform is welcome and necessary. At present, the independent House of Lords Appointments Commission (HOLAC) fulfils two roles: it makes nominations for crossbench peers and scrutinises the propriety of all nominations to the House of Lords, including those made by the political parties. It can recommend against nominations, and has done so: in March 2006 it raised questions over several candidates put forward for peerages by Tony Blair on the grounds that some had donated substantial amounts of money to the Labour Party, which led some names to be withdrawn and sparked a full-blown “cash for honours” scandal; in 2020, it objected to Boris Johnson’s nomination of financier Peter Cruddas, who had given more than £1 million to the Conservative Party; and in June 2023 it advised against the appointment of eight candidates in Johnson’s resignation honours list.

The weakness is that HOLAC is not a statutory body and has no power to veto appointments, only to advise against them. In the case of Cruddas, Johnson overruled the commission’s advice and nominated him anyway, the first time a prime minister had ever disregarded HOLAC’s recommendations. It is no surprise that it was Johnson who finally brought a system which had worked by mutual agreement and precedent to a stage of crisis. The nomination process to the House of Lords, the fitness of some of those nominated and the underlying propriety of their nominations is a matter of sufficient public concern that it needs to be addressed.

Last year, the House of Commons Public Administration and Constitutional Affairs Committee conducted an inquiry into membership of the House of Lords, though it was not able to produce a report before the end of the parliament. I submitted a memorandum to the inquiry in which I proposed that HOLAC be placed on a statutory basis, given the legal authority to reject nominations within carefully defined parameters and publish its advice as a matter of course. I also suggested that the chair of HOLAC (currently lawyer and academic Baroness Deech) could be subject to a pre-appointment hearing by a House of Commons select committee. These are not major or revolutionary changes but they would add considerable transparency to the appointment process and avoid a repetition of a prime minister (or any party leader) making nominations which had been deemed improper.

I did add the caveat that, in recognition of practical politics and the current function and composition of the House, party leaders should have considerable latitude in whom they nominate for peerage so long as there is no suggestion of impropriety or illegality.

There should not be very stringent rules on whom the prime minister and other party leaders may nominate, so long as they pass the “fit and proper” test. They are, in the main, after all, intended to be working peers, and I doubt that a credible and workable system could be devised and agreed to regulate nominations very strictly.

To regulate nominations more strictly would be to question the whole concept of party political “working peers”, that is, people nominated to the House of Lords to be spokesmen and spokeswomen as well as backbench supporters of a particular party and carry out the everyday political functions of the Lords. It is perfectly possible to disagree with that model, but to do so is to move into the territory of much more far-reaching reform than is currently proposed.

The bugbear in the room

One of the underlying arguments for removing the hereditary peers, introducing a retirement age, stipulating a required level of participation and several other ideas for change is the the House of Lords is too big. It is, we are told with tedious regularity, second only in size to the National Congress of the Chinese Communist Party, which numbers over 2,000 (actually people often cite the “Chinese politburo”, but the Political Bureau of the Central Committee only has 24 members). In principle, this is true: the House of Lords consists of 805 peers, with another 26 on leave of absence, suspended or otherwise disqualified from sitting. That is a very large number.

Their Lordships worry about this fact constantly. The Lord Speaker’s Committee on the Size of the House, chaired by crossbencher and former permanent secretary to HM Treasury Lord Burns, has produced five reports on its specialist subject since it was set up in 2016. Its principal proposals are these: there should be an absolute cap on membership of 600; this should be achieved by a “one in, two out” arrangement for new peers; peers should have a fixed term of 15 years to achieve turnover of membership; and appointments should be made to reflect the result of the most recent general election. I vaguely agree with the last idea and vehemently reject all the others.

It is frequently said that this approach has widespread support across the House of Lords. That may be true, though it is my experience that many peers think they should be fewer in number but that they, individually, should remain, such is their contribution to public life. It does not necessarily mean it is a good idea or, much less, that I am required to agree. It is also often said that the House endorsed the committee’s approach when it was first set out in December 2017. This is not strictly true: the House “took note” of the committee’s first report, which, procedurally, is not quite the same as an endorsement.

The headline figure of 800 peers is, however, fundamentally misleading, for one very simple reason: they do not all attend at one. Average attendance by session has never risen above 500, and until a decade or so ago was much closer to 400. That “actual” size of the House takes it well below the full turnout of the House of Commons and below many European legislatures. In everyday, practical terms, the Lords is not managing absurd numbers or a uniquely bloated membership. It is a canard.

There are two second-order arguments in favour of reducing the size of the Lords. The first, advanced by peers and officials, is that even if not all peers attend at the same time, the size of the House places an unbearable strain on accommodation. It is true that most peers have to share offices, and only a lucky few are situated in the main building of the Palace of Westminster. On the other hand, peers employ far fewer staff than MPs and do not have to deal with the burden of constituency work. It seems to me, in any event, a strange proposition that the size of a House of Parliament should be dictated by the available facilities.

The second argument is a reputational one, that a headline membership of 800, even if its does not represent the average active membership of the House, invites derision and accusations of excessive expenditure and awarding of peerages. At an Institute for Government event earlier in the year, I managed to persuade the Lord Speaker, Lord McFall of Alcluith, that this presentational issue was in fact the only valid concern about the size of the House. It certainly can be used, albeit simplistically, to show the Lords in a disparaging and negative context, though I would observe that the case is hardly helped by peers themselves endlessly talking about how the House is too big, as if it were a matter of holy writ.

The reason I dislike and disagree with the proposals of Lord Burns and his committee is that it is another move towards a House of professional peers, of those whose principal occupation is to be in the House of Lords. I just don’t accept that as an inevitable or even desirable outcome. As I said above, one of the valuable but unusual features of the Lords is that it is not so much a body of legislators as a pool from which legislators can be drawn according to need, expertise and availability. I am quite relaxed that it has a notional membership of 800, since the actual, participatory membership tends to be more like half that; a partial analogy could be drawn with the Privy Council, which currently has 749 members in total but which never meets in full, its powers being exercised by a small number of members to approve Orders in Council and Orders of Council, to grant royal charters, to serve, through its Judicial Committee, as a final court of appeal for Crown Dependencies, British Overseas Territories and some Commonwealth countries, and to run the government through its executive committee, the cabinet (yes, the cabinet is a committee of privy counsellors).

Enfin

I began with the House of Lords (Hereditary Peers) Bill, that miserable little measure which will no doubt be passed at some point this session and will represent a small and largely immaterial change to the upper house. If we take the government at its word, other measures will follow, but I don’t, because governments often find more pressing matters than reform of the House of Lords when the rubber of constitutional principles hits the road of political reality. Setting aside the fact that I don’t think the House of Lords needs very much change, I doubt we will see meaningful and sensible rearrangements this parliament. But I am willing to be proved wrong.

The fundamental point to which, as a conservative, I adhere is that constitutional change is significant, can have enormous (and sometimes unforeseen) consequences and should be undertaken only when the case for change is overwhelming. That is, there should be an obvious mischief to be eliminated, and the reform proposed should not only address that mischief but leave our constitutional arrangements in a better condition than they were. I find it hard to accept that those criteria apply to the House of Lords (Hereditary Peers) Bill, given that it will leave us with, for the first time really in Parliament’s history, a second chamber comprising only members appointed by political parties (overwhelmingly) or the Appointments Commission. Better than what we have now? You might think so; I’m afraid I can’t come along for the ride on that one.