5 Transition, Salaries, IPSA, Disqualification,
|Relevant sections of the draft Bill: Clause 36 and Schedule 6
THE GOVERNMENT'S PROPOSALS
295. The Government considers a period of transition to be important
so that the culture of the present House of Lords may be transferred
to the reformed house.
Having current members working alongside new members would "help
the reformed House of Lords work effectively during this period".
296. The Government have proposed that one third
of the membership of the reformed House of Lords be chosen at
each of the three next general elections. This would result in
the following composition of the House for the three electoral
periods (assuming that the House is 80 per cent elected):
- In the first transitional period
(after the first election) the House of Lords would comprise a)
80 elected members, b) 20 appointed members, c) up to 21 Bishops,
d) any ministerial members, and e) any transitional members.
- In the second transitional period (after the
second election) the House of Lords would comprise a) 160 elected
members, b) 40 appointed members, c) up to 16 Bishops, d) any
ministerial members, and e) any transitional members.
- After the third election¸ and subsequently,
the House of Lords would comprise a) 240 elected members, b) 60
appointed members, c) up to 12 Bishops, and d) any ministerial
297. While the Government's preferred option is the
one for which provision is made in the draft Bill, two other options
are described in the White Paper and we are told that "the
Government remains open to views on the exact process of transition".
The Government have set out three possible options for determining
the number of transitional members.
298. Option 1 is set out in the draft Bill. It would
reduce the number of current members in parallel with the introduction
of new elected and appointed members. In the first transitional
period the maximum number of transitional members would be two
thirds of the membership of the House as at the date the Bill
was introduced in the House of Commons. In the second transitional
period the maximum number of transitional members would be one
third of the membership of the House as of the date the Bill was
introduced in the House of Commonsi.e. half of the transitional
members of the first transitional period. Only peers who were
transitional members in the first transitional period would be
able to be selected as transitional members in the second transitional
period. After the third election¸ and subsequently, there
would be no transitional members.
299. Option 2 would allow all the current membership
of the House of Lords to continue until the third election. This
would result a very large House, of nearly 1000 members in the
second transition period. In addition, the current membership
of the House would have a majority until the third election, at
which point which they would all leave at once. The Government
note that this option would ensure that the knowledge of existing
members would be retained as new members joined (though the same
could be said too of Option 1 and to a lesser extent Option 3).
300. Option 3 would see the House of Lords reduced
to 300 members immediately, in the first transition period. The
Government state that "this would mean that the advantages
of a smaller House could be realised immediately and would make
clear that the House of Lords had been reformed". In the
first transition period 200 members from the current House would
remain, joined by 100 new elected and appointed members. In the
second transition period, only 100 members of the current House
would remain, alongside 200 new elected and appointed members.
As with the other options, all members of the current House would
leave at the third election.
301. The Bill leaves the means of choosing transitional
members under all these options to the House of Lords which can
put conditions on which members can be selected as transitional
members, and choose whether transitional members should be selected
by election or by another means (such as selection by party groups).
Transitional members would have to be selected before the House
of Lords was dissolved in the run-up to each election. If an individual
chosen as a transitional member was subsequently either elected
or appointed to the reformed House instead, they cease being a
transitional member. No other person would take their place. The
Clerk of the Parliaments would have the final say where there
was any question as to the maximum number of transitional members
allowed under these provisions, and the validity of the selection
of a transitional member
302. Of those witnesses who commented on the proposals
for transition most accepted that such a gradual transition was
desirable for the reasons advanced in the White Paper. A period
of transition would be "welcome and beneficial for the elected
and it was "necessary to ensure the upper house's operational
Some thought that having different classes of membership during
transitionwith elected members claiming greater legitimacy
than otherswas undesirable.
303. There were sceptics who questioned the need
for transitional arrangements at all. In the view of Democratic
Audit, "... transitional arrangements are probably more significant
as a sweetener intended to secure compliance for reform from existing
members, and their exact nature is more of a political judgement
than one of constitutional and democratic principle".
Other witnesses also questioned the logic of having a transitional
period, "other than to reduce dissatisfaction among members
of the existing House." If the system needed replacing, "it
should arguably be replaced as one".
304. So far as concerned the choice of transitional
Option, views varied. Option 1, as in the draft Bill, was preferred
by several respondents as it "balance[ed] the smooth running
of the House with a wealth of continued experience". 
305. Option 2, which allows all eligible current
members of the House of Lords to remain in the reformed House
until the dissolution of parliament immediately prior to the third
election, had little support. A number of submissions objected
that this would result in a very large number of members. Unlock
Democracy described this as "impracticable" and claimed
"This model would lead to the second chamber growing even
larger in size, guarantee that the unelected members continue
to outnumber the elected members for more than a decade and ensure
that the costs of the second chamber would rise exponentially
before coming down again, to no identifiable purpose."
306. The Electoral Reform Society pointed out that
while "a critical mass of elected peers will be necessary
to establish the chamber's new working practices" it saw
"no merit in allowing all current peers to remain for a full
David Beamish, Clerk of the Parliaments, said "I very much
hope that the Committee will not be tempted by Option 2, under
which all the present Members would stay until the third round
of elections to the House. The practical problems of accommodating
and supporting a House with such a large number of Members during
the transition period should not be underestimated".
Option 2 had some support. The Campaign for a Democratic Upper
House proposed a modified version of Option 2, whereby all hereditary
peers would leave when elected members joined, but existing life
peers would be allowed to stay. In its view, "The temporary
large size of the House which would result for a period should
not be seen as a barrier to reform".
Graham Allen MP thought that retaining all current members would
307. Opinions were divided over Option 3, which would
see all but 200 existing peers leave the House of Lords at the
time of the first election. While some saw such an arrangement
as a way to prevent "delays and wrangling at each stage",
others saw it as "a rather brutal cut" and politically
308. The Archbishop of Canterbury drew the Committee's
attention to onepossibly unintendedconsequence of
the transitional arrangements as they affected the bishops. This
is considered at section 17 above.
OPINION OF THE COMMITTEE ON OPTIONS
1 TO 3
309. It is useful to set out the likely size of the
House under the various options during the ten year transitional
Reformed House of 300 membersOption
Reformed House of 450 membersOption
310. The Committee consider that a gradual transition
is desirable to enable the second chamber to continue to perform
its functions, and so as to facilitate the retention of the conventions
and procedures of the present House by the reformed house. The
Committee also thinks that the transition option chosen should
give fair treatment to current members.
311. Option 2 is not feasible. The Committee agrees
with the Clerk of the Parliaments and other witnesses who consider
the likely size of the transitional house under option 2 to be
312. Option 3, while perfectly feasible, is likely
to be seen as unfair to present members and is for that reason
politically less acceptable than Option 1. Of
the options set out in the White Paper, the Committee therefore
considers Option 1 the best of those canvassed.
313. The Committee
agrees that the House of Lords should itself, through the medium
of the political parties and the crossbench peers, be responsible
for establishing the selection of transitional members.
OPINION OF THE COMMITTEE: A FOURTH
314. The Committee has given some thought to the
feasibility of making a bigger cut in transitional membership
in 2015 than is proposed by option 1. This idea arose out of the
evidence given by Rt Hon Baroness Hayman, former Lord Speakerin
the rather different context of reducing the current appointed
House to a smaller appointed house of some 600 members over 5
to 10 years. In subsequent exchanges it was acknowledged that
a significant one-off reduction would be possible.
315. If this idea is applied to the provisions in
the draft Bill relating to the transitional members it should
be possible to make a one-off reduction in 2015, with no further
reduction in transitional numbers except by death or resignation/retirement
until 2025. The size of the one-off reduction would be equivalent
to the number of members who currently attend fewer than one in
three sitting days. This would result in a transitional element
who would then be apportioned to the political parties and crossbench
peers pro rata their current numerical strength. While
it would be for the political parties and crossbench peers to
determine the criteria for selecting the transitional members,
under this scheme there would be a strong case for using a member's
attendance record as a criterion for selection.
316. A scheme on these lines provides greater continuity
till 2025 and could preserve the position of those current members
of the House of Lords who are regular attenders for longer. It
would give the following outcomes, assuming a reformed house of
450 and annual attrition of 2.67 per cent.Possible
outcomes for a reformed House of Lords
Note: the initial transition element of 449 members
is derived from the benchmark figure of the number of members
who attended 66 per cent or more of sitting days in the financial
year 2011-12 as at 26 March 2012. The attrition rate of 2.67 per
cent is a Government estimatesee Mark Harper MP supplementary
written evidence (3).
the Committee recommends an alternative fourth option with three
transitional membership in 2015 equal to a benchmark figure derived
from the total number of members attending 66 per cent or more
of sitting days in the financial year 2011-12. These transitional
members will remain in place until the final tranche of elected
members arrive in 2025, at which point they will all leave;
b) an allocation
of the transitional seats to parties and crossbench peers in proportion
to their current membership; and
and crossbench peers to determine for themselves the persons to
serve as transitional members.
Committee further recommends that, if this option finds favour,
parties and crossbench peers should have regard in particular
to a member's attendance record over a designated period for determining
who should remain as a transitional member.
319. The Committee
strongly suggests that, as in 1999, the authorities of the current
House of Lords may wish to consider the extension of certain club
and access rights to those members who are not selected as transitional
19 Salaries, etc
|Relevant sections of the draft Bill: Clause 59 and Schedule 7
320. Currently, members of the House of Lords (other than Ministers
and office-holders) are not paid a salary. They may claim a daily
allowance of £300 (or £150 for a half-day) for each
qualifying day of attendance at Westminster and are also able
to recover travel expenses incurred in connection with their Parliamentary
321. The Bill envisages that those joining the reformed
House, whether appointed or elected, would be salaried, since
members "would be full-time Parliamentarians".
The Independent Parliamentary Standards Authority (IPSA) would
set and administer their pay and allowances. The draft Bill also
provides for salaries to be paid to transitional members.
322. The White Paper states:
"The Government considers that the level of
salary for a member of the reformed House Lords should be lower
than that of a member of the House of Commons but higher than
those of members of the devolved legislatures and assemblies.
This would recognise that they would have responsibilities or
UK-wide legislation but would not have constituency duties. However,
it will be for the IPSA to set the level of salaries".
323. There are two main issues to be considered in
relation to the Government's proposals:
- is it correct to assume that
all members should be full-time and paid a salary?
- what would be an appropriate level of salary?
SHOULD PART-TIME APPOINTED MEMBERS
RECEIVE A SALARY?
324. Elected members in a reformed House would receive
a salary and pension and would be expected to devote most of their
time to their parliamentary duties while the House is sitting.
We have already recommended, however, that the presumption should
be that appointed members would not have to commit to the same
level of activity. If experts are to maintain their expertise,
they need to remain engaged in their original activities. Similar
arguments will apply to transitional members, those who are currently
members of the House of Lords, many of whom have other interests.
The Minister argued that although members of a reformed chamber
would be expected to be full-time parliamentarians in sitting
periods, they would be able to continue their previous work at
times when the House was not sitting, but we are unconvinced by
He also argued that:
"In the same way as in the House of Commons
we have a set salary for every Member, I think that you have to
have a set salary for every Member of the House of Lords. Some
will work incredibly hard and some will work less hard. That is
just what we get used to in politics. I do not think that you
can start differentiating salaries by how hard people work or
how many hours they put in".
325. Although Lord Jay of Ewelme thought it would
be undesirable to treat appointed members differently from elected
ones, including in salary level,
Dr Alan Renwick considered that it would be desirable to have
a system which meant "that varying levels of attendance can
be acknowledged." He noted "It is clearly unsatisfactory
if members can arrive, sign in, and promptly leave again, thereby
securing their daily allowance. But it is surely not impossible
to design a system that works better than this".
We asked the Clerk of the Parliaments about the practicality of
a House in which some members were part time and others not. He
considered "we already have Members who devote different
portions of their time to their membership. That seems to work".
The Chair and Chief Executive of IPSA were more cautious, since,
as Sir Ian Kennedy said, "Per diem allowances might have
a degree of bureaucratic underpinning that a salary will not havenot
least the necessity to discover whether they are appropriately
paid, what evidence is required for them and so on".
He told us that:
"What is relevant is the range of responsibilities
and how you remunerate them. You can remunerate them by a salary
that is fixed at 100 and you get 50% or 20% or you can remunerate
them by using a per diem. It is not the difference between salary
and per diem; it is really a question of, number one, the range
of responsibilities and, number two, the mechanism for remuneration",
also noting that "My default position as regards transitional
arrangements is that ordinarily we would wish to treat every parliamentarian
the same, given that they have similar responsibilities".
326. There are problems with that approach. Elected
members may have additional functions from appointed or transitional
members. While their responsibilities may appear similar, they
may well carry them out in a different way. Attempting to use
a range of responsibilities by which to assess what proportion
of salary should be paid comes dangerously close to a job description.
That approach is unsatisfactory. First, each parliamentarian should
have the freedom to determine how best to approach the job: that
is a key function of their individual independence, and of Parliamentary
sovereignty. Secondly, in a 15-year term, how would it be possible
to tell in advance what responsibilities an individual Member
might choose to take? It is far simpler to base remuneration on
attendance for those who are not expected to attend regularly,
whether they are appointed or transitional members. That will
automatically link the amount of payment received with activity.
There should be no difficulty in "the bureaucratic underpinning"
for an allowance system, given that the House of Lords is currently
able to link allowances with attendance.
327. We recommend
that transitional Members should receive a per diem allowance
rather than a salary. We further recommend that IPSA should consider
whether appointed members may elect to receive a per diem allowance
if it better reflects their level of participation in the work
of the House. The Bill should leave it to IPSA to set the level
of those allowances.
328. The majority of the written evidence agreed
with the principle that members should be salaried but there were
differing opinions about the level at which a salary should be
set. The Campaign for a Democratic Upper House supported the suggestion
in the draft Bill that members of a revised second chamber would
receive a smaller salary than members of the Commons, not simply
because they would not deal with individual constituency casework,
but because of the subsidiary status of the second chamber.
329. The Electoral Reform Society in contrast suggested
that members of a reformed Lords should receive an equal salary
(and allowances) to those of the Commons. This was so that "people
from all social backgrounds and all regions of the UK could serve
in the chamber without facing financial hardship". 
330. Unlock Democracy also supported equal salaries,
arguing that although members of the second chamber might not
have the large constituency casework of MPs, they would have more
specialist Committee work. The Chair of IPSA considered that salaries
should be set in the light of job descriptions, and pointed out
that MPs salaries were to be reviewed.
331. We agree
that, as proposed in the draft Bill, IPSA should determine the
level of salary and allowances. Membership will likely entail
for many members the need to maintain a second home in London.
We concur with the Electoral Reform Society that the salary and
allowances should be set at such a level as to enable people from
all social backgrounds and all parts of the United Kingdom to
serve in the second chamber.
|Relevant section of the draft Bill: Clauses 36-55
332. As the draft Bill now stands, the criteria for disqualification
are similar for appointed and elected members, and both are broadly
similar to the disqualification regime for Members of the House
of Commons, set out in the House of Commons Disqualification Act
1975. Some disqualifications are contained on the face of the
draft Bill; others are framed by reference to the House of Commons
Disqualification Act 1975. We deal first with the disqualifications
on the face of the Bill.
DISQUALIFICATIONS ON THE FACE OF THE BILL
333. The first ground for disqualification is age: persons under
18 either on the day on which they are nominated as candidates,
or on the day of their appointment are disqualified. Some of the
evidence given to us favoured a higher age for disqualification;
those concerned argued that the House of Lords should be place
for reflection and experience. Dr Alan Renwick disagreed, on the
grounds that, although "vanishingly few" 18-year-olds
would be elected "I think it would send out the wrong signals
at a time when it is very difficult to get young people engaged
in politics to impose a higher limit".
The Minister agreed.
Disqualification on grounds of conduct
334. Both elected and appointed members are disqualified if either
they are the subject of an insolvency order, or the "serious
offence condition" has been met. As the explanatory notes
make clear, "a person is not disqualified merely because
they are bankrupt: an insolvency order may only be made where
there has been additional behaviour by the individual such as
fraud, or a neglect of business affairs which may have increased
the bankruptcy or failure to cooperate with the official receiver".
335. The serious offence condition is specified in
Clause 47: briefly, it is that the person concerned has been convicted
of an offence, whether in the United Kingdom or elsewhere, and
has been sentenced to be detained for more than one year. This
is related to the Representation of the People Act 1981, which
provides that the seat of a Member of the House of Commons imprisoned
from more than one year is automatically vacated. The Archbishops
of Canterbury and York thought that "a sentence of more than
twelve months as the bar for disqualification" "seems
too high in the interests of retaining public confidence and propriety".
336. The Council of the Law Society of Scotland was
concerned about Clause 50 of the draft Bill, which would allow
the Lords to excuse someone from the serious offence provision:
"The electorate is entitled to expect that its
legislators have not committed serious offences. It should not
be at the discretion of the House to determine whether this ground
of disqualification should be disregarded."
The Explanatory Notes say "the clause would
allow the House of Lords, for example, to disregard disqualification
for offences which may not be punishable at all under UK law".
In drafting the Bill, the Government is faced with a dilemma:
if only serious offences committed in the United Kingdom are included,
then those punished for breaches of the law elsewhere will be
able to remain in the House; if disqualification follows a custodial
sentence in any jurisdiction, then there is a risk that members
of the reformed House may be disqualified for behaviour that is
not criminal in the United Kingdom. There
are sound constitutional arguments for avoiding fettering the
discretion of Parliament by statute law. On balance, we consider
the provisions of the draft Bill which allow the reformed House
to resolve to disregard some grounds for disqualification are
appropriate. We expect this power is most likely to be used (if
ever used) in cases where a member of the House has been convicted
in another jurisdiction for behaviour which would not be criminal
in the United Kingdom, or where the judicial process is open to
Disqualification by reference to House of Commons
Disqualification Act 1975
337. The key provisions of the draft Bill relating
to the House of Commons Disqualification Act 1975 are Clause 36
(1) (c) and (d) and 38 (1) (c), and (d).
338. Section 1 of the House of Commons Disqualification
Act 1975 expressly disqualifies anyone who:
(a) holds any of the judicial offices specified in
Part I of Schedule 1 to this Act;
(b) is employed in the civil service of the Crown,
whether in an established capacity or not, and whether for the
whole or part of his time;
(c) is a member of any of the regular armed forces
of the Crown;
(d) is a member of any police force maintained by
a police authority;
(e) is a member of the legislature of any country
or territory outside the Commonwealth (other than Ireland).
The draft Bill excludes holders of those offices
(judges, civil servants, members of the armed forces, members
of police forces and members of foreign legislatures) from membership
of the reformed House of Lords as well. This prohibition is absolute,
and would require primary legislation to alter.
339. The 1975 Act contains other disqualifying offices,
which may be varied from time to time, and the disqualification
regime for the reformed House of Lords operates by reference to
these provisions. Section 1(f) of the House of Commons Disqualification
Act prescribes that those who hold "any office described
in Part II or Part III of Schedule 1" shall also be disqualified.
As Erskine May says, Part II contains "executive and regulatory
bodies in a wide range of areas, and certain quasi judicial and
other statutory bodies whose members are appointed by the Crown".
Part III "contains a long list of residual offices which
disqualify either on the grounds that their holders are appointed
by the Crown or that their holding is incompatible with membership
of the House of Commons".
Part IV of Schedule 1 sets out offices disqualifying particular
constituencies: broadly speaking, Lord-Lieutenants or holders
of equivalent functions cannot represent a constituency of their
Lord-Lieutenancy. Schedule 1 of the Act can be amended relatively
easily to allow the disqualification regime to adapt to changes
in the machinery of government, and the creation or abolition
of new public bodies.
340. The draft Bill provides that "for the time
being" disqualifying offices for the Commons will also disqualify
for the Lords, with the exception of membership of the House of
Lords Appointments Commission (Clause 36 (3)). Clause 36(4) provides
that "if the House of Lords resolves that Part 2 or 3"
of Schedule 1 "is to be modified in its application to elected
members by virtue of subsection (3), Her Majesty may by Order
in Council modify the application of that Schedule accordingly"
The provision mirrors section 5 of the 1975 Act, which allows
the House of Commons to amend Schedule 1 of that Act. As the Explanatory
Notes make clear, each House may accordingly have a different
disqualification regime for elected members.
341. In regards to appointed members, Clause 38(4)
makes a similar provision to Clause 36(4): "an office within
subsection (2) is not a disqualifying office of an appointed member
if it is listed in an Order in Council made by her Majesty under
this subsection." Clause 64(2) specifies that such an Order
in Council will be subject to annulment in pursuance of a resolution
of either House of Parliament. The Explanatory Notes say:
"Subsection (3) provides that an office defined
according to subsection (2) may be listed in an Order in Council
made by Her Majesty so that it is not a disqualifying office.
The list of disqualifying offices for appointed members would
therefore be modified by reference to the list of disqualifying
offices for elected members of the House of Lords. This would
permit a less restrictive list of disqualifying offices to be
drawn up for appointed members than for elected members, in order
to bring specific experience or expertise to the House of Lords."
The Minister reiterated this: "we think that
it would be acceptable for there to be a different regime for
appointed Members as opposed to elected Members, given that you
are getting appointed Members in for their experience".
342. We have already recommended that appointed members
of the reformed House should be able to serve on a part-time basis
and be paid a per diem allowance while retaining outside interests.
good reasons for different disqualification regimes for elected
and appointed members. Otherwise, the disqualification regime
would permit those with significant private sector interests to
serve, but exclude those with experience drawn from important
public sector posts. Since elected members will be full-time,
professional politicians they should be subject to the same disqualification
regime as Members of the House of Commons. Part-time appointed
members should be allowed to keep their outside interests and
should instead be subject to a code of conduct on similar lines
as that applying to current members of the House of Lords.
Defining the grounds for disqualification
343. The House of Lords will have the power to vary
the disqualifying offices for elected members of the reformed
House by resolution; this means that there will be a debate on
the proposals before any order is made, and the House of Commons
will not have any right to intervene. While the draft Bill is
clear that the disqualification regime for appointed members will
be set by Order in Council, there is no indication as to who will
influence the content of such an Order in Council before it is
made, although each House may subsequently cause its annulment.
We asked the Minister why the Bill applied different mechanisms
for determining what were disqualifying offices for elected and
appointed members. He indicated that this difference was due to
the need to provide for a list of disqualifying offices to be
drawn up in advance of the first elections and the first round
of appointments and that "to permit this we included a provision
for the list of disqualifying offices to be modified for appointed
members by an Order in Council".
He then went on to say:
"We agree that after the first round of appointments
it should be open to the reformed House to make a resolution to
amend the list of disqualifying offices for both elected and appointed
members. We will examine the drafting of the Bill and make any
necessary amendments, before introduction to ensure it reflects
this, subject to any further views from the Joint Committee".
disqualification scheme for elected members of the reformed House
is based on that for the House of Commons, which rests on clear
and long established principles. Moreover, the electorate has
power to ensure that candidates it considers have a conflict of
interest are not elected. It is appropriate for the reformed House
to approve changes to the lists of disqualifying offices for elected
members just as the Commons approves changes to the relevant schedules
of the House of Commons Disqualification Act. There is as yet
little clarity about the principles which might underpin the disqualification
regime for appointed members. We consider that the Government
should set out what it thinks those principles should be. The
Government should also reflect on whether it is in fact appropriate
for a single House to determine the disqualification regime for
21. Parliamentary Privilege and
the draft House of Lords Reform Bill
|Relevant sections of the draft Bill: Clause 56 and 58, and paragraphs 3 and 5 of Schedule 6
345. Parliamentary privilege consists of the rights and immunities
which the two Houses of Parliament possess to enable them to carry
out their parliamentary functions effectively. The principal privileges
for present purposes are freedom of speech and exclusive cognisance.
Freedom of speech is primarily achieved by the absolute protection
of proceedings in Parliament guaranteed by Article 9 of the Bill
of Rights 1689. Under this article the debates or proceedings
in Parliament "ought not to be impeached or questioned in
any court or place out of Parliament". The privilege of exclusive
cognisance (or exclusive jurisdiction) is that Parliament must
have sole control over all aspects of its affairs and determine
for itself what its procedures shall be.
346. It is of course possible for Parliament to provide
that the Courts may encroach on matters falling within its exclusive
cognisance or even upon Article 9 as it relates to proceedings
in the courts. But in such circumstances Parliament should make
such provisions advisedly. There are a number of provisions in
the draft Bill which sit uncomfortably with the principles of
Article 9 and with exclusive cognisance. This is acknowledged
in Clause 2 of the draft Bill whereby subsection 2 qualifies the
assertion at subsection 1 (c) that nothing in the Act affects
the privileges of the House.
|Clause 2, subsection (2):|
(2) Subsection (1)(c) is subject to
(a) sections 36(1)(a) and 38(1)(a) (minimum age for elected and appointed members);
(b) sections 49 and 50 (resolutions that disqualification is to be disregarded);
(c) section 56 (standing orders about expulsion and suspension);
(d) paragraphs 3 and 5 of Schedule 6 (standing orders about selection of transitional members).
(3) Nothing in the provisions of this Act affects the validity of anything begun before the provision comes into force (for any purpose) and completed afterwards.
Cm 8077, page 36
347. The principal areas of concern are Clauses 56
and 58, and paragraphs 3 and 5 of schedule 6.
348. The Clerk of the Parliaments and the Clerk of
the House of Commons raised their concerns in respect of these
provisions both in general and specifically in the following terms.
The Clerk of the Parliaments warned:
"At present, the courts and Parliament have
a generally good relationship whereby each respects the other's
position, and the Committee may want to consider whether there
is a risk of the courts being drawn into passing judgment on whether
the House has complied in particular cases with provisions in
the Bill. That would undermine the principle laid down by Article
9 of the Bill of Rights that proceedings in Parliament "shall
not be questioned in any place out of Parliament".
The Clerk of the House of Commons shared his concerns:
"I think that, if you are talking about legislation,
a great many undesirable consequences follow from that. If you
start to regulate the internal processes of Parliament by legislation,
there is only one way of deciding any difference and that is through
the courts. It may take a fairly long time to decide something
or resolve an issue that the two Houses might well decide in parliamentary
business overnight or in the course of a sitting day. Also, because
the courts are going to have to look at parliamentary materials
to come to a decision, that will drive a coach and horses through
Article 9 of the Bill of Rights. That is an outcome about which
I would be extremely concerned".
349. The Clerk of the Parliaments was particularly
concerned about Clauses 56 and 58. He said to the Committee:
"Clause 56 is headed 'Expulsion and Suspension'
and goes into various provisions as to how it should work. I suppose
that the bit I am most nervous about is subsection (4) onwards
... Subsections (4) to (7) are in effect about retrospection.
They raise the question of whether things that are a ground for
suspension happen before or after a set date. That immediately
sounds like the sort of thing that might be challenged. On practical
grounds it may not be very sensible, because, as the Lords Members
of the Committee will know, the House has used its power of suspension.
It would probably like what is available to be clearer. This would
leave a gap in relation to any conduct before the relevant date.
Those are the bits that, by going into detail about what happens
within the House, make it look as if an attempt to bring a case
to court might well get a hearing. On Clause 58, there is perhaps
little more that I need to say, except that by specifying that
we cannot question proceedings because of "(a) a vacancy
among the members, or (b) the participation of a person who should
not be participating" on general legal principles, it hints
that other things might give rise to questioning it. These are
obviously things that could be tested only when they arose, but
the Committee might want to guard against the risk of opening
up a field day for lawyers".
350. We consider Clause 56 first. It provides for
standing orders to make provision under which the House of Lords
may by resolution expel or suspend a member. A statutory power
is necessary because currently members of the House of Lords cannot
be expelled, and suspensions cannot last longer than a single
Parliament. The clause provides that such resolutions must specify
when the matters giving rise to the resolution occurred, and that
the matter cannot have occurred before the person became a member
of the House of Lords, or before the beginning of the transitional
period (as defined in the Bill). This is the most problematic
of the provisions, because it defines what must be specified in
the text of the resolution of the Lords, and also, by implication,
stipulates that such resolutions will only be valid if made according
to Standing Order. The courts could potentially be asked to adjudicate
not on whether or not a resolution had legal effect, but on the
adequacy of the House's Standing Orders, or whether or not it
had properly applied them.
351. Providing for matters to be determined by Standing
Order is not new; the House of Lords Act 1999 provides for excepted
hereditary peers to be chosen by a process set out in standing
orders, and that there should be by-elections, but that provision
explicitly states that "Any question whether a person is
excepted from section 1 shall be decided by the Clerk of the Parliaments,
whose certificate shall be conclusive." The draft Bill by
contrast, contains no such provision for deciding disputed matters
without resort to the courts.
352. We recommend
that Clause 56 should be restricted to providing that the House
of Lords has power to expel or suspend its members. We are confident
that the House will use that power responsibly and make appropriate
353. In the draft Bill, Clause 58 (Proceedings) provides:
"The proceedings of the House of Lords are not
to be called into question because of
(a) a vacancy among the members, or
(b) the participation of a person who should
not be participating."
354. Given that Clause 2 maintains nothing in the
draft Bill "affects the rights, powers or privileges or jurisdiction
of either House of Parliament", it is hard to see why the
provision in Clause 58 is necessary. We are also mindful of the
concerns of the Clerk of the Parliaments.
355. We consider
that Clause 58 of the draft Bill is unnecessary and should be
356. Paragraphs 3 and 5 of Schedule 9 also seek to
specify the contents of Lord Standing Orders relating to transition.
Here too the House should be trusted to work out for itself a
suitable way of proceeding.
357. The sub-paragraphs
in paragraphs 3 and 5 of Schedule 9 which go beyond prescribing
that "selection is to be made in accordance with standing
orders of the House of Lords" are unnecessary and should
be omitted, reflecting the approach of the House Lords Act 1999.
358. We further
recommend that for the avoidance of doubt the Government should
consider the insertion into the Bill of a general saving provision,
like that used in the Parliamentary Standards Act 2009, as follows:
"Nothing in this Act shall be construed by any court in the
United Kingdom as affecting Article IX of the Bill of Rights 1689".
22. The Parliament Acts
359. The draft Bill makes no mention of the Parliament
Acts, although the Government both in the White Paper and in their
evidence to the Committee placed great reliance on the fact that
the Acts will continue in force, and may be used with more frequency,
even after the reform is in place. They also assume that the eventual
Bill, when introduced, can itself be passed under the Parliament
Acts, should it prove necessary. The written evidence from Lord
Pannick, who had taken part in the Jackson case, and Lord
Goldsmith, a former Attorney General, are particularly illuminating
on both these questions, as is Lord Pannick's oral evidence.
360. First, can a Bill on these lines be presented
for Royal Assent under the Parliament Acts? Lord Morris of Aberavon
submitted written evidence which expressed doubts, reflecting
some of the views expressed by some of the judges in Jackson.
He said that the constitutional issues raised by the Bill might
be such as to be "so fundamental that even a sovereign Parliament
cannot act". At Lord Morris' exhortation, the Committee sought
the advice of the Attorney General. The Attorney General declined
to provide that advice on the grounds that or was inappropriate
for the Law Officers to advise Parliament on the Government's
legislative programme. The Committee regrets that the Attorney
General felt unable to assist the Committee to understand his
reasoning in respect of such an important matter.
361. Both Lord Pannick and Lord Goldsmith considered
that the Parliament Acts could properly be used to reform the
House of Lords, and that the courts would uphold such a decision,
despite the remarks by some of the judges in Jackson. In
oral evidence, Lord Pannick set out the reasons why he considered
the Parliament Acts could be used in such a way:
The first is that the 1911 Act makes very clear the
circumstances in which it does not apply. It lists exceptions;
constitutional reformreform of the upper Houseis
not one of them. As Lord Bingham said in the Hunting Act case,
the word used in Section 2 of the 1911 Act is "any",
and any Bill means any Bill, subject to the defined exceptions.
The second reason is that the whole point of the 1911 Act was
to provide a mechanism by which disputes between the two Houses
could be resolved without the appointment of a large number of
new Peers. It would be very surprising if the courts were to interpret
the 1911 Act so that it could not resolve a dispute between the
two Houses. The third reason is that it is absolutely clear that
the reason why the 1911 Act was passed in the first place was
to enable the House of Commons to have its way, if there were
a dispute, on issues of major constitutional reform. ... The fourth
reason, if one needs to go this far, is that there are ample statements
in Hansard indicating that it was very much the intention of the
Government to have the ability to use the 1911 Act to secure fundamental
constitutional reform, in particular reform of the House of Lords.
362. In his written evidence, Lord Pannick gave more
detail about the historic context:
"The legislation was deliberately designed to
ensure that, in the event of a dispute, the elected House of Commons
could prevail over the unelected House of Lords. ... Courts should
be very reluctant to undermine the political victory of the House
of Commons by restricting its ability to decide when it is appropriate
to use the powers conferred by the 1911 Act, subject only to the
express limitations contained in the 1911 Act itself. Any use
of the section 2(1) powers would occur only in the circumstances
of a highly contentious political dispute. The courts should stay
well away from implying limits on the ability of the Government,
through its majority in the House of Commons, to resolve a political
363. A second question then arises, about whether
the Parliament Acts would continue to apply to a largely elected
second chamber. The Government clearly assumes that this would
be the case, since the ability to use the Parliament Acts is one
of the reasons given for continued Commons primacy.
364. Lord Goldsmith considered that the Parliament
Acts might not apply once the House had been reformed. He gave
a number of reasons for this. Parliament "did not intend
that the provisions of the Act would apply to "a second Chamber
constituted on a popular
basis." Further the Act clearly
contemplated that when that came about it would be for the legislation
at the time to make provisions "for limiting and defining
the powers of the new second Chamber".
In consequence, he thought the following difficulties might arise.
First, it could provide a new and elected House of Lords moral
justification for declining to give way to the House of Commons
and put to rest any argument that failing to give way was unconstitutional;
second, there could be a legal challenge, in accordance with the
principle that legislation must be interpreted in the context
of the conditions at the time of its enactment, so that the words
"House of Lords" might be considered only to apply to
a House in its unelected form. Lord Goldsmith said: "Whilst
the application of this principle may be uncertain in the context
of this Bill and the precise way the Parliament Acts operate this
does at least give rise to doubt that the Parliament Acts, or
at least all their provisions, would apply in the absence of clear
Parliamentary enactment to that effect".
365. When we put this to Lord Pannick, he considered
it a difficult question, but agreed with Lord Goldsmith:
"My opinion is that the better view is that
the 1911 Act would not apply in the event that the upper Chamber
were wholly or mainly elected. I say that for these reasons. First,
the Preamble to the 1911 Act makes it very clear indeed that Parliament's
intention was to move in the future to a second Chamber that was
popularly elected. Secondly, it is clear to my mind that the purpose
of the Parliament Acts was to regulate the relations between the
two Houses at a time when one House was elected and one was not.
Thirdly, there is no material that I can see in the Hansard debates
that suggests that the 1911 Act was intended to apply even when
we moved at some time in the future to a position where both Houses
would be elected".
366. Lord Goldsmith warned "whilst it would
be open to Parliament to legislate now to make clear that the
Parliament Acts should operate in the same way in relation to
an elected House the vague and general provisions of the proposed
Section 2 including Section 2(1)(b) do not seem to me adequate
for that purpose".
Lord Pannick concurred:
"it is absolutely vital, in my opinion, for
the reform Bill to specify with clarity whether or not it is the
intention that the Parliament Acts should continue to apply in
the event of there being a substantially or wholly elected upper
Chamber. It would be extremely undesirable to leave that fundamental
question unclear for the future; the inevitable consequence is
that the matter would end up in court rather than being decided
He did not consider that Clause 2 of the Bill "adequately
addresses that question".
is not for this Committee to give legal advice on the applicability
of the Parliament Acts to a reform Bill. We leave the evidence
of Lord Pannick and Lord Goldsmith to speak for itself.
368. In spite of the Government's confidence, distinguished
lawyers have some doubts as to whether the Parliament Acts would
continue to be effective once the second chamber was elected or
largely elected. If the Government
wish to ensure that the Parliament Acts apply to a reformed House,
they should make statutory provision for it.
23. Dispute Resolution
369. The draft Bill contains no provisions about
conciliation mechanisms between the two Houses. The Government
seeks to rely on the Parliament Acts (see section 22) to maintain
primacy. Currently disputes about legislative drafting are resolved
through "ping-pong", backed by the implicit threat of
the use of the Parliament Acts. Several witnesses, such as Graham
Allen MP, Peter Riddell and Damien Welfare thought improved conciliation
mechanisms might be needed to settle disputes between the reformed
House and the Commons.
While the Clerk of the Parliaments had some doubts about the practicality
of, for example, a conference between the Houses, he considered
that "as a way of changing the tone, so that we looked at
reconciliation rather than one House withdrawing its decision,
it might be worth a try. As I say, it has happened before, so
it could be practical".
370. The Minister for Political and Constitutional
Reform considered that it was not necessary to take a view on
conciliation mechanisms at present, and that the dangers of setting
down the dispute resolution mechanism in statute outweighed the
"Ultimately, the back-stop is that the Commons
has primacy through the Parliament Acts. Because of that, our
tradition suggests that you would get that dispute resolution
mechanism, as happens now, evolving through convention. I think
that that is much more sensible than saying that we have got to
decide today what the relationship will be between the two Chambers
in 15 years' time, decide now how you would deal with those disputes
and set that down in statute so that it would be decided by the
courts. I do not think that that is how we have traditionally
done things in this country, and I do not think that it is necessary
in this case".
agree that dispute resolution procedures should be a matter for
the two Houses of Parliament, not for the courts. Nonetheless,
we believe that the Government should consider proposing improved
dispute resolution procedures as part of the process of reforming
the House of Lords. We have already recommended that a Joint Committee
be established to consider the conventions which should govern
the relationship between the two Houses; it should also examine
the ways in which differences might be resolved without resort
to the Parliament Acts.
372. By any standard, the Government's proposal to
reform the House of Lords is of major constitutional significance.
While the current draft Bill is advanced by the coalition Government,
the Labour Party also expressed itself at the last general election
as being in favour of a democratically elected upper House. The
Government's view is that:
"because all three parties were in favour of
this, we did not think that a referendum was justified. When the
House of Lords Constitution Committee looked at referendums, it
said that it thought that abolition of the House of Lords would
be a subject on which you would automatically want to have a referendum,
but it did not say that changing the composition of the House
of Lords would be such a proposition. So, no, we do not think
that a referendum is necessary, and that is why we did not propose
it in our draft Bill or White Paper".
373. Despite the constitutional importance of the
subject, the lack of a clear party division on the issue means
that any opposition to the proposed reform cannot readily be tested
at any future election by voting for one or other candidates seeking
election to the House of Commons. If the Government has its way,
the draft Bill will have become an Act before the next general
election, at which the first tranche of elected Members of a reformed
House of Lords would be seeking election. There is thus no opportunity
for the electorate to provide a mandate for these proposals.
374. Several witnesses giving evidence to this Joint
Committee called for a referendum before the proposals in the
draft Bill are commenced. As Mr Christopher Hartigan, who described
himself as "a member of the public with an interest in constitutional
matters and Lords Reform in particular" put it:
The fact that elections were mentioned in the three
manifestoes does not mean it is the settled view of a party, it
is not, or the majority of members of a party agree with it or
that the electorate want it either. It can be said that the fact
that it was in three manifestos makes it clear that the people
had no choice. It should also be remembered all three parties
LOST the election. ... If the government believe this is the will
of the people then it should proceed on a free vote of their representatives
or hold a constitutional referendum before such important changes
375. Sir Stuart Bell MP supported a referendum on
"such a major change to our constitution" which sought
to ask "whether the electorate wished the House of Lords
to be replaced by a second chamber wholly-elected, whether the
electorate wished the House of Lords to be replaced by a second
chamber, partially elected, and whether it wished election to
be by first-past-the-post or proportional representation".
Bernard Jenkin MP similarly argued that a referendum was required
because of the major constitutional change that the Bill would
introduce and pointed to the AV referendum in 2011 as a recent
Mordaunt MP did not necessarily advocate a referendum, but thought
that the refusal to offer one "is at odds with the principles
the Bill's promoters advocate and is in contrast to that held
on the less significant constitutional matter of the voting system
for parliamentary elections".
Thomas Docherty MP thought it was reasonable that the public should
be asked their view on such a radical change to the dynamic and
operation of the Upper House, to say nothing of the decision to
create another 300 full-time politicians.
376. Mark Ryan, Senior Lecturer in Constitutional
and Administrative Law at Coventry University, maintained that
a referendum was necessary as "constitutional reform has
been far too parliamentary-centric and introspective without any
real reference to engaging the wider public".
Liam Finn called for a referendum, but suggested that there be
no turnout threshold requirement ensuring the binding nature of
the referendum and a state-funded public education scheme, so
that the public could make an informed decision.
377. Professor Vernon Bogdanor told us in oral evidence
that a referendum would be the right way forward because all three
parties proposed an elected Lords in their election manifestos
in 2010, so there was no way for the voter to indicate his or
her opinion: "I think it would be right to hold a referendum
on this issue, which I think is a greater change than the alternative
vote system that has been rejected".
378. Peter Riddell referred us to the Report of the
House of Lords Constitution Committee of the Lords on referendums,
in which the Committee acknowledged that, if referendums were
to be used, they were most appropriately used in relation to fundamental
constitutional issues; the Committee concluded that whether an
issue raised "an important question of principle about a
principal part of the constitution" provided a useful test,
first, of whether an issue was of fundamental constitutional significance,
and second, of whether a referendum was therefore appropriate.
In the view of some members of the Committee, changing fundamentally
the composition and method of selecting one chamber of Parliament
appeared, prima facie, to meet the test in respect of affecting
a principal party of the constitution and raising an issue of
principle. Other members of the Committee noted, however, that
the Constitution Committee's report included a list of proposals
which would fall within this definition: while the abolition of
either House of Parliament was included, reform of the House of
Lords was not.
379. Peter Riddell's own view was that there was
a strong argument that such a fundamental constitutional change
in the relationship between the two Houses should be subject to
According to Peter Riddell, polling evidence from the Hansard
Society's annual audit of political engagement "shows terribly
shallow political engagement ... Knowledge about what the Lords
does is pretty low, and knowledge of what the Commons does is
pretty low too. I think people have contradictory views on it".
He warned whatever the ostensible question, the way people voted
in referendums depended on extraneous political circumstances.
380. Professor Sir John Baker QC told us that he
did not believe in referendums, because it was impossible to frame
a question in a way that is not slanted: "Whenever you are
faced with a single question in a referendum, you immediately
want to say, 'Well, yes if this, but no if that'. I am not sure
how you could frame the question".
The Electoral Reform Society did not see any need for a referendum.
381. Unlock Democracy's view is that referendums
should be triggered by a popular process rather than by the government
of the day. Unlock
Democracy told us that, as all the parties were committed the
case of House of Lords reform, there was sufficient legitimacy
to go ahead and do it; but on the other hand, if there was evidence
that a significant proportion of the public disagreed and wanted
a referendum on the subjectwith a trigger of two million
signaturesUnlock Democracy would not be opposed to a referendum
in those circumstances. Peter Facey was not sure that a referendum
would seal the argument:
I am not sure that the turmoil would be any less
if we had a referendum. All it will do is that the issue over
which there is a fight will be differentit will be over
the terms of the referendum and there will be clauses on whether
there should be a super-majority, for example. The idea that simply
by having a referendum you will save time in Parliament and will
all be able to move on, leaving it to the electorate, is a nice
one, but from previous experience I do not think that it would
382. Lord Cormack of the Campaign for an Effective
Second Chamber questioned why a Bill which sought to claim democracy
as its hallmark, made no provision for the people to pronounce
in a referendum.
Paul Murphy MP also argued the way in which Parliament was organised
should also be subject to a referendum: "To be perfectly
honest, I see great benefit in the public debate that will be
held about it ... A referendum would generate a proper debate
and people in the country could make their minds up. It would
also obviously give legitimacy to the solution".
383. The clarity of a popular verdict in a referendum
would depend on there being a straightforward question to put
to the voters. As Baroness Hayman told us; "at the moment
there are so many issues that it would be very difficult to focus
the public debate on how to go forward".
384. While our
primary task is to review the draft Bill in the White Paper referred
to us, it is highly probably that a desire will be expressed in
both Houses to debate whether a referendum ought to be held on
the House of Lords reform proposals. Even if the Government were
to decide to make no such provision in the Bill itself, they would
in our view nonetheless be well advised to facilitate debate before
the Bill goes into Committee in the House of Commons on whether
it be an Instruction to the Committee on the Bill that it may
make provision in the Bill for a referendum on House of Lords
385. The Committee
recommends that, in view of the significance of the constitutional
change brought forward for an elected House of Lords, the Government
should submit the decision to a referendum.
385 Mr Mark Harper MP (Q Q 56, 61) Back
Cm 8077, page 19 Back
Cm 8077, page 20 Back
Unlock Democracy Back
Electoral Reform Society Back
Professor Hugh Bochel, Dr Andrew Defty and Jane Kirkpatrick Back
Democratic Audit Back
Professor Hugh Bochel, Dr Andrew Defty and Jane Kirkpatrick,
Green Party Back
James Hand, Democratic Audit, Archbishops of Canterbury and York Back
Unlock Democracy Back
Electoral Reform Society Back
Q 621 Back
Damien Welfare and the Campaign for a Democratic Upper House Back
Q 639 Back
Based on the current membership of the House on 1 January 2012,
and a natural annual attrition of 2.67 per cent. Back
QQ 613, 618-19 Back
Cm 8077, page 24 Back
Cm 8077, page 24 Back
Q 251 Back
Q 254 Back
Q 403 Back
Dr Alan Renwick Back
Q 636 Back
Q 518 Back
Q 513 Back
Electoral Reform Society Back
Q 210 Back
Q 257 Back
Cm 8077, page 147 Back
Archbishops of Canterbury and York Back
The Law Society of Scotland Back
Cm 8077, page 149 Back
Erskine May, 24th edition, page 38 Back
Erskine May, 24th edition, page 39 Back
Cm 8077, page 143 Back
Cm 8077, page 145 Back
Q 264 Back
Mr Mark Harper MP-Supplementary written evidence (4) Back
Mr Mark Harper MP-Supplementary written evidence (4) Back
Q 621 Back
Q 657 Back
Q 622 Back
Q 664 Back
Lord Pannick. See also Professor Sir John Baker QC (Q 227) Back
Lord Goldsmith Back
Q 665 Back
Lord Goldsmith Back
Q 665 Back
Peter Riddell, Campaign for a Democratic Upper House. See also
Unlock Democracy, Dr Meg Russell, Peter Riddell (Q 141), Damien
Welfare (QQ 572ff), Graham Allen MP (QQ 639ff) Back
See also Lord Grocott (Q 699) Back
Q 634 Back
Q 741 Back
Q 750 (Mr Mark Harper MP) Back
Sir Stuart Bell, Lord Rowe-Beddoe, Campaign for an Effective
Second Chamber, Democratic Audit and Christine Windbridge were
among those submitting evidence to us who noted that the Labour
Party Manifesto had contained a commitment to create a fully elected
Second Chamber in stages using an open-list proportional representation
electoral system, before putting them to the people in a referendum. Back
Christopher Hartigan Back
Sir Stuart Bell MP Back
Bernard Jenkin MP Back
Penny Mordaunt MP Back
Thomas Docherty MP Back
Mark Ryan Back
Liam Finn Back
Q 114 Back
House of Lords Constitution Committee, 12th Report ( 2009-10),
Referendums in the United Kingdom (HL Paper 99), paragraphs
62 and 94. The Committee's views were re-affirmed in a more recent
report: House of Lords Constitution Committee, 15th Report (2010-12),
The Process of Constitutional Change (HL Paper 177), paragraphs
100 to 101 Back
Peter Riddell Back
Q 135 Back
Q 135 Back
Q 239 Back
Q 296 Back
Unlock Democracy Back
QQ 368-70 Back
Q 591 Back
Q 609 Back
Q 612. See also Graham Allen MP (Q 649) Back