Delivered via Zoom, on the 9th December 2020
The Future of the House of Lords
The Lord Speaker, Lord Fowler
Thank you, Philip [Lord Norton of Louth]. I would like to thank the Study of Parliament Group for inviting me to give this year’s Michael Ryle Memorial Lecture. It is a great pleasure to be with you today.
I believe this is the first time in its seven-year history that this lecture has been delivered virtually. I also understand that this first time that this lecture has been delivered by someone who was working in Parliament at the same time as Michael Ryle.
I welcome Michael’s family who are listening today, his wife Bridget, children Nick, Jo and Victoria who is listening in all the way from Tasmania.
As you may know, Michael was a pioneer in reforming Parliamentary procedure. So it is fitting that the subject for my lecture today is about reform of the House of Lords.
In particular, I associate Michael with the development of the select committee system which was introduced after the 1970 election. I served myself on the Race Relations and Immigration Select Committee under the chairmanship of Bill Deedes and with other Members like Arthur Bottomley also there. And that in itself was a pioneering development—race relations and immigration would not have been considered 10 years earlier. So I welcome the whole idea of a lecture in memory of Michael Ryle.
As I sit on the Woolsack for question time, scarcely a day goes by without a peer calling for an inquiry into one subject or another. An inquiry into the handling of the Covid-19 emergency, an inquiry into mental health, an inquiry into prison conditions. This House is without parallel in calling for inquiries. If I might be permitted tentatively to make a suggestion: perhaps the time has come to call for inquiry into ourselves, and address the subject of the reform of the House of Lords.
I say tentatively, because as Lord Speaker it would be wrong for me to enter into some of the disputes and some of the party politics which is associated with this subject. I think it would be more useful for me to set out the kind of questions that any inquiry in the third decade of the 21st century should be examining.
Some may say we have been around this course before—and so we have, but in the last 20 years we have made precious little progress in tackling some of the key issues that the public, the media, and members of the Lords themselves consider to be important.
Back in 1999, the then Government introduced a two-part reform bill—the first part expelled most hereditary peers; the second part never came. A little later after that we had the Royal Commission of my friend John Wakeham which was—despite the quality of the recommendations—substantially ignored. And then of course we had the Clegg Bill in 2012, but that didn’t get past second reading. The prevailing political view has been that “reform is not a priority.”
What are the issues?
But surely no one believes that everyone is happy with where we are—either in the Lords or outside. How could they be?
- We have a House which is 820 strong far in excess of what is needed to transact the business of the Lords.
- We have a House which is unique among democratic Senates where there is no maximum laid down on the number of members there can be.
- We have a House where appointment is in the hands of whoever happens to be the Prime Minister of the governing party at the time.
- We have 92 hereditary peers still entitled to sit on the red benches and a system which means that their numbers are preserved by bringing in new hereditary peers.
- We have peers who make an exceptional contribution to the work of the Lords but all too often the headlines go to those who make little or no contribution.
- We have a system of peer recruitment where (except in very limited cases) would be peers are not asked officially what contribution of time they are prepared to give.
I could go on into areas like the payment of peers, or the advancement of party donors. But it is already a formidable list which many would believe merits investigation. If further persuasion is needed, then we might look at the opinion polls carried out.
For example, only a third of people surveyed by Populus in February 2020 thought that the House of Lords was relevant to them, and only one fifth thought that the House of Lords was open and accountable to the public.[1]
So is there a general condemnation of the Lords on the grounds of inadequacy? The answer to that is “no”. Consistently, the greatest public support for the Lords is on the grounds that they act as a check on the House of Commons. And that means much more than simply taking a different view on some of the big political issues of our time. It also means checking on the torrent of legislation that flows from the Commons.
That same Populus survey demonstrated that half of the public believe that Members of the House of Lords bring a broad range of specialist knowledge and experience to the law-making process.
Much of this work is quiet and done painstakingly without any drama or grandstanding. But it means that MPs, ministers, and departments are able to have a second look at their work and the figures show that they do.
Over the last 12 months, there were almost 2000 amendments made in the Lords to bills. Significantly, many of these were Government amendments, introduced by Ministers who had listened to the debates and considered further on their proposals. Without this check, legislation would be poorer and subject to a flood of challenge. Errors are put right. Judgements are reassessed. And of course, what this means for the public and for business is better law and better regulation.
And what makes this process so powerful is the experience that the Lords can call upon. Hospital doctors and nurses who know the NHS intimately; university and schoolteachers who have often spent a lifetime in education; and some of the most distinguished lawyers in the land.
Do we need a second chamber?
So this brings me to my first question for any inquiry: do we need a second chamber at all? “Scrap the Lords” makes a convenient headline, but what does it mean? Does it mean scrap the Lords as it is presently constituted? Or does it mean scrap everything and hand over all roles to the House of Commons?
My belief is that we would be hard pressed to replicate the kind of experience we have at present in the Lords in examining bills before they become law.
That experience is very much exhibited by the independent peers of the Cross Benches, as well as those nominated by political parties. I remain to be convinced that this kind of function could be taken over by the Commons. In my experience, it has never been the first interest of MPs. While it should be added that they already have a formidable workload which has increased vastly since I joined the Commons in 1970—in particular their constituency work.
When I joined the Commons there were MPs who were little more than absentee landlords. They visited their constituencies rarely and when they did, they stayed at a local hotel. I remember one former cabinet minister telling me that he went to his constituency once every three weeks and no one locally expected more. Today the public expect much more—and rightly so. They might well however regard the present division of work between Lords and Commons as being a common sense division and an argument for a second chamber.
Checking legislative proposals before they become law is of course not remotely the only job of the Lords. Making use of their experience they are, for example, able to make select committees into a very powerful instrument in examining government policy.
So of the committees today, we have Baroness Lane-Fox’s new COVID-19 Committee, which was set up to consider the long-term implications of the pandemic. There’s Lord Forsyth of Drumlean’s Economic Committee, Lord Patel’s Science and Technology Committee, Baroness Taylor of Bolton’s Constitution Committee, Baroness Anelay of St Johns’ International Relations and Defence Committee and many more.
Governments may not always welcome their investigations, but ministers will often confirm that they receive full and expert questioning. I remember when chairing the first Communications select committee that I had members with more experience of the media than any of the ministers who came before us. I also remember.
But of course, the argument from Governments is that the Lords too often challenges some of their cherished provisions in proposed legislation and irritatingly delay the law getting onto the statute book.
As we talk here tonight, a debate is taking place in the House of Lords chamber on the provisions of one such bill, the UK Internal Market Bill. A part of that bill was described by a Government minister as being unlawful—you know how the arguments have now advanced. It would have been extraordinary if such provisions were to proceed unchallenged.
We might remember that a challenge even to a major piece of legislation gives the government the opportunity to think again—as we saw with the Lords votes to delay the government’s proposals to limit people’s eligibility for Tax Credits back in 2015. But it should be remembered that in the final analysis the Government can have its way. The Parliament Act of 1949 building on the fierce debates of 1911 means that the Lords can delay (but only for 12 months) but they cannot permanently overrule.
How big should the House of Lords be?
If it is agreed that there should be a second House, one of the big questions next becomes how big such a House should be. The present position is that that a Prime Minister—any Prime Minister—can appoint as many new peers as he or she likes or as many as he or she thinks can be got away with in front of the media. Public opinion appears to be no great check. When he was Prime Minister Tony Blair appointed 374 new peers—including, I have to admit, myself. While not to be hopelessly outdone, David Cameron appointed 245. The only Prime Minister who has followed an explicit policy of moderation was Theresa May who, to her credit, said in a letter to me in February 2018:
“I intend to continue with the restraint which I have exercised to date and, when making appointments, to allocate them fairly, bearing in mind the results of the last general election and the leadership shown by each party in terms of retirements. I will also operate on the basis that there is no automatic entitlement to a peerage for any holder of high office in public life.”
That was of great encouragement to people like myself who were campaigning for a smaller House and to my committee under Terry Burns who produced a detailed plan of exactly how it could be achieved. Frankly, I have to say that the current Prime Minister took absolutely no notice of the Committee’s proposals albeit that they had been endorsed by the House. He, and particularly his advisers, at Number 10 did not even discuss them with us. The result was that in July 2020 he added 36 new peers bringing up the total at that time to almost 830.
My criticism is not of the persons appointed—how could that be given that they included old friends like Ken Clarke and Patrick McLoughlin? It is a question about the system that puts all power—choice and numbers without restriction– in the hands of whoever happens to be the occupant of Number 10 at the time. I would argue that the House of Lords needs be no bigger than 500 peers—but this question merges into the next.
The third issue I would mention is how you distinguish between the hard workers and the passengers in the House of Lords. This is not a new issue. In the 19th century, Members were fined for non-attendance, although this practice was eventually abolished in 1868.[2] And I do not give much for my chances of reintroducing it.
For many this remains a fundamental issue. Why appoint a peer if he or she is not going to do anything meaningful like speak in debates, ask questions, and contribute to the work of select committees? If a peerage is to be regarded purely an honour, then resurrect the idea of non-parliamentary peers. It would certainly knock out of the House some well-known names but that is not where the opposition to such an idea would come from. It is much more likely to come from the whips who are far less interested in the quality of debate and the general reputation of the House than in gathering the votes. An infrequent attender who does little but vote faithfully for his party might suit them rather well. It is my view that at the very least every individual nominated for a peerage should be asked by the House of Lords Appointments Commission what contribution he or she intends to make. Some would argue that obvious non-contributors—that is in normal times when Covid-19 does not distort the picture on attendance and contributions—should be required to stand down.
The objection here is that such a process might lead to endless debate—not dissimilar to the painful process of deciding on the hereditary peers who would be removed as a consequence of the 1999 legislation. Of course, for the supporters of an elected House it is one more argument in their case—the electorate would choose. But as I say, this is not a matter for a me as Lord Speaker—it is something to be decided by the two Houses, always remembering that some of the strongest opposition to an elected House of Lords will come from the elected House of Commons as has always been the case. Indeed, when a Joint Committee was established in 2001 to resolve the issue, it reached no conclusion and instead gave Parliament seven options to choose from (fully appointed, 20% elected, 40% elected, 50% elected, 60% elected, 80%, and fully elected). In a confusing series of votes in February 2003, all of these options were defeated, although the 80% elected option fell by just three votes in the Commons. There was no majority for any course.
So, there are already a host of questions for any Commission to consider—and there are more: should there be a retirement age of say 70 or 80? I am obviously biased: I would be caught by both. But it is at least worth asking the question whether it is sensible to expel a peer in his early 80s to make room for a non-contributor 15 years younger. With relief I would leave that issue to others.
What should we do about the hereditary peers? If the House of Lords is to be reduced in numbers, then the hereditaries cannot be exempt. We also need to decide on the future of the hereditary by-elections with the Government making time available in the Lords for legislation to proceed and a decision to be taken and, critically, stating openly what their position is.
What should be done to make the House of Lords more representative of the country we live in—whether by geographical spread and representation by ethnic minorities, women, or LGBT people. This in itself is massive task, which brings me to my last point.
Conclusion
I can well imagine what the Government “line to take” could be on all these proposals would be. “It is not a priority—we have a great deal of legislation to get through in other areas.” And so they have. But I am not arguing for an immediate Act of Parliament to reform the Lords. In truth, we have probably already lost that opportunity in this Parliament. What I am advocating is a thorough review carried out perhaps on Royal Commission lines whose report should be ready before the next election and which can be implemented at the very start of the next Parliament. What I am arguing against is any party bringing down a single well-publicised proposal designed to make headlines but leaving the overall issue of Lords reform largely unchanged.
Now as I said at the beginning, I am a mere Speaker, quite rightly I’m precluded from stating my own views on many of these issues which are political or semi-political. However, I am in the last 12 months of my Speakership. And all I would say is that at some stage later I will myself attempt answers to the questions that I have posed.
But today I want to end by thanking the Study of Parliament Group, it’s Chair Cristina Leston-Bandeira and colleagues for organising the session today, which I know has taken a lot of work behind the scenes.
Footnotes
[1] House of Lords Tracking Research 12th February 2020.
[2] EA Smith, The House of Lords: In British Politics and Society 1815–1911, 1992, p 44.