A House of patronage

It is a strange spectacle to see a dying government struggling to enact constitutional reform. Admittedly the proposals contained in the Constitutional Reform and Governance Bill appear as a miscellaneous collection of unrelated items left over from earlier reform and attempted reform. The second reading debate in the Commons on 20 October was as much about what is not in the Bill as what is.

Considerable changes have been made from the earlier version, the rather grandly entitled Constitutional Reform and Renewal Bill, published in draft form in 2008. Among these is a new section on the House of Lords, unmentioned in the earlier Bill. Carry-over for this Bill into the final and inevitably brief session of the current parliament has also been approved, but how many of its provisions will become law is a very open question.

Ever since the passage of the 1999 House of Lords Act removing the bulk of the hereditary peers, the government has promised a ‘stage two’ reform to bring fundamental change to the second chamber. Making minor changes has been resisted on the grounds that these should await thoroughgoing reform. But this argument has been steadily undermined as both some of the weaknesses and absurdities of present arrangements have become clearer, and as the prospect of fundamental reform has receded further over the electoral horizon.

The outcome of talks among party front-benchers following the Commons vote in favour of an entirely elected or 80 per cent elected second chamber has been embodied in the 2008 white paper (Cm 7438). This expresses the hope that all parties will place similar proposals in their election manifestoes, thereby creating momentum for reform in the next parliament.

This approach appears to endorse the use of the manifesto as a means of binding parliamentary parties to a course of action chosen by their leaders rather than as an instrument providing for electoral choice. However, the disagreements over major details (such as the kind of electoral system to be used) are so great, and the intensity of feeling, especially among backbench party members in both Houses, remains so strong, that one can well understand David Cameron’s reported view that major reform of the House would certainly not be a priority for an incoming Conservative government.

The argument for making some specific limited adjustments to the House has therefore strengthened. Spearheading this approach has been Lord (David) Steel whose re-introduced House of Lords Bill received strong support across the political spectrum when it was debated last February. This would have ended the election of hereditary members, introduced a retirement scheme for peers, provided for the expulsion of those who committed criminal offences and placed the Appointments Commission on a statutory basis. The government’s Bill takes up the first three of these matters while leaving the Appointments Commission untouched.

The scandal that broke earlier this year, over peers being paid to introduce amendments to bills, no doubt acted as a further incentive to the government to introduce a statutory basis for the expulsion or suspension of peers, especially given that the Lords’ own inquiry into this subject found the House was unable to expel members and could only suspend for the remainder of a parliament.

It is easy to mock the system that provides continuing places for 90 hereditary peers in the Lords; in some recent elections there have been more candidates than eligible voters! And of course when this system was introduced as an amendment to the 1999 House of Lords Act it was intended only to last until stage two of Lords reform took place, confidently expected within the lifetime of the following parliament.

The arrangement was viewed in various ways; to some it was primarily about giving continuity to the work of the House by retaining some experienced and active members; to others it was about retaining a representative hereditary element in the House and thereby avoiding — even for an interim period — a wholly appointed House. To some it was a deliberate irritant, designed to goad the government into further reform.

But a decade later the idea that keeping some hereditary peers would incentivise further reform has worn thin. So the government has decided to grasp this particular nettle. However this will not be a sudden mass exodus, as with the bulk of hereditary peers in 1999. Rather, as existing elected hereditary members die, or perhaps retire, they will not be replaced. Some could still be there several decades hence.

But controversy surrounds this step, especially because during the passage of the 1999 Act ministers unequivocally pledged that these peers would remain until ‘stage two’ (understood as fundamental reform of composition) took place. Dominic Grieve speaking for the Opposition pledged resistance to this part of the Bill, arguing that while the remaining hereditaries were undemocratic, they were ‘no less democratic than the appointees who will replace them’.

And many in other parties certainly did not anticipate that after twelve years in office Labour would have succeeded only in creating a second chamber entirely appointed by the prime minister assisted by a non statutory appointments commission responsible only to himself.

The government bill follows the Steel bill in providing for retirement from the House, an option that could be exercised by any peer simply by writing to the Lord Chancellor. After the dramatic drop in the total numerical size of the House in 1999, with the expulsion of hereditary members, the House has gradually grown in size to around 750. A general election and probable change of government in 2010 could easily push numbers up by another 100 or so. The Conservatives currently have a deficit on Labour of about 20 places which one would expect a new Conservative prime minister to wish to rectify.

But the pressure for new creations will be intensified by the unprecedented number of MPs likely to retire, including over 30 former senior ministers who according to past practice could expect to be offered peerages in a dissolution honours list. A change of government has in the past always been followed by a resignation honours list. Unless some action is taken the House could easily swell to well over 800 members in 2010.

Life-time membership accords readily enough with a House made up of individuals whose arrival there is seen above all as a great honour. But the shift in emphasis towards a working House, with membership being conferred on individuals in expectation of future service rather than past achievement, is increasingly in tension with all peers remaining for life even if they become through age or infirmity incapable of contributing to the work of the House, or indeed if they simply lose interest in doing so.

Introducing a way of retiring honourably and permanently from the House might well appear attractive to some peers in the much more professional House that now exists. If an implication of retirement were that a place thereby freed became available for a party leader to fill with a new member, then perhaps there would be a significant take-up of this option.

The convenor of the cross-bench peers has suggested 250 members might choose to depart, though another peer doubted this, describing the House as the ‘best geriatric day centre in the country’. However, if the prospect of retirement was sweetened by the retention of dining rights and other small privileges, then it is certainly possible that a procession of the less active peers might avail themselves of such an opportunity.

Unlike earlier proposals for retirement, such as those contained in the 2008 White Paper on the Lords, this Bill contains no provision to enforce a ‘cooling-off’ period before peers who exit the Lords can stand for the Commons. Speculation has inevitably arisen that this change of mind may have been made to allow some prominent members of the Lords to make a sudden return to the Commons. If enacted this Bill would clear the way for Lord Mandelson to re-enter the Commons, perhaps even at the next election!

The dog that fails to bark in this Bill concerns the Appointments Commission. This was set up in 2000 to choose independent members of the House, and has since also assumed the role of the former Honours Scrutiny Committee, vetting all nominations for propriety. Questions raised by the commission led to police inquiries in 2006 into some party nominees and a general tightening up of procedures. But the role of the commission remains uncertain as was made clear when its head, Lord Jay of Ewelme (former head of the diplomatic service) gave evidence to the House of Commons Public Administration Committee in July 2009.

He drew a sharp distinction between assessing suitability and assessing propriety; nominations to the cross benches made by the commission had to be assessed for both, but party nominations were only assessed for the latter. However, the propriety test did involve a candidate being in good standing in the community and being a credible nominee.

MPs wondered how this criterion would be applied in the flood of nominations expected in 2010, election year. Would undistinguished backbench MPs whose names appeared on the dissolution honours list — retiring at the last minute from safe seats at the party leadership’s behest — be considered credible by definition, even if perhaps also tainted by the Commons expenses scandal? What about party mavericks who might retire but would be unlikely to feature on any party leader’s list? Could the commission exercise any influence at all or any constraint on numbers?

Lord Jay acknowledged that a year into his role he had yet to meet the prime minister to discuss the work of the commission, including not only these points but also the role of the commission in handling nominations made for individuals appointed as ministers — some of whom had very transient careers as ministers, but at present remain members of the Lords for life.

The government white paper published in 2008 had reflected differences of view about the commission. Labour had proposed that it be placed on a statutory basis as it had in all earlier white papers and election manifestoes, but the Conservatives preferred it to remain non-statutory so as to retain greater flexibility. The commission may try and insist to party leaders that their candidates must be highly credible. But its role in exercising such a judgment has no secure basis.

It may be that the commission will gradually develop its authority to exercise a more assertive role, but in the hurly burly of politics around election time, it is easily possible to see it marginalised. Either way the government’s earlier commitment to place it on a statutory basis does not figure in this bill. The second chamber becomes a patronage chamber par excellence.

It seems a strange epitaph to the Labour government to leave the House composed entirely of appointed members, with the prime minister unconstrained by any statutory requirement, and therefore retaining the ultimate say over who all appointees are, over the numbers appointed and indeed the party balance. But that would be the effect of this bill.