Draft House of Lords Reform Bill - Joint Committee on the Draft House of Lords Reform Bill Contents

6  Conclusions and recommendations

Functions, Role, Primacy and Conventions

The principle of an electoral mandate

1.  Differences of perception as to the need for an electoral mandate exist within the Committee too, as well as within political parties and across the two Houses. They will doubtless condition the debate when the Bill is introduced and considered in both Houses. The Committee, on a majority, agrees that the reformed second chamber of legislature should have an electoral mandate provided it has commensurate powers. (Paragraph 23)

Functions, powers and role

2.  The Committee agrees with the Government's view that in order to enhance the effectiveness of the parliamentary process it is appropriate that a reformed House should perform, but not be constrained by, the functions of the present House of Lords—including initiating and revising legislation, subjecting the executive to scrutiny, and acting as a forum of debate on matters of public policy. Indeed, the Committee agrees that for the first time the reformed House will, in respect of its elected members, acquire a representative function. (Paragraph 33)

3.  The Committee is firmly of the opinion that a wholly or largely elected reformed House will seek to use its powers more assertively, to an extent which cannot be predicted with certainty now. (Paragraph 34)

4.  The Committee considers that a more assertive House would not enhance Parliament's overall role in relation to the activities of the executive. (Paragraph 35)

5.  Any overall strengthening of Parliament would have to be subject to a defined understanding of the relationship between the Commons and the reformed House and of any conventions governing that relationship. (Paragraph 36)

Primacy of the House of Commons

6.  The inclusion of conventions alongside the powers, rights, privileges, and jurisdiction of either House of Parliament in subsection (1)(c) of Clause 2 lays these conventions open to judicial intervention. The Courts could infer that if Clause 2 were passed that Parliament intended the courts to have the authority to determine what those conventions (and indeed the powers, rights, privileges, and jurisdiction) were. The Committee's view is that no provisions in the Bill should afford the opportunity for judicial interference in a manner inconsistent with Article 9 of the Bill of Rights 1689. (Paragraph 49)

7.  We concur with the overwhelming view expressed to us in oral and written evidence that Clause 2 of the draft Bill is not capable in itself of preserving the primacy of the House of Commons. (Paragraph 55)

8.  We agree that the existing primacy of the Commons rests on a number of factors including, but not limited to, the self-restraint of the current House of Lords. (Paragraph 64)

9.  We are wary of according too much weight to claims about the relative strength of individual mandates, not least in relation to the passage of time. A mandate is a mandate for the period for which a member is elected. An MP's mandate is no weaker in the fourth or fifth session of a Parliament than in the first. (Paragraph 65)

10.  We agree that following election the increased assertiveness of a reformed second chamber will affect the balance of power between the two chambers in favour of the House of Lords. (Paragraph 66)

11.  Opinion within the Committee varied as to the impact which any shift in the balance of power would have on House of Commons primacy. Some members believed that Commons primacy would remain absolute, buttressed by the provisions of the Parliament Acts: some believed that an electoral mandate would inexorably lead to claims of equal primacy with the Commons. Some believed that that no attempt should be made to preserve Commons primacy, while others believed Commons primacy would be undermined. A majority, while acknowledging that the balance of power would shift, consider that the remaining pillars on which Commons primacy rests would suffice to ensure its continuation. (Paragraph 67)

Primacy: additional statutory provision

12.  A majority of the Committee does not advocate any proposals for making statutory provision to entrench Commons primacy. These ideas and others in the same vein may be brought forward during the legislative passage of the Bill through Parliament. If such proposals are advanced, it may be expected that they will meet opposition on the grounds that they would diminish the powers of an elected House of Lords too greatly, that they would weaken scrutiny of the Executive, or that they would be meaningless and unworkable. Such proposals may also give rise to the possibility of judicial intervention which the Committee considers to be profoundly undesirable. (Paragraph 74)


13.  We agree with the weight of the evidence we have received which suggests that the conventions governing the relationship between the two Houses will evolve further once the House of Lords is reformed and would need to be re-defined. (Paragraph 91)

14.  The essential character of conventions cannot be preserved if they are defined in legislation. The Government's approach in Clause 2(1)(c) of the Bill of simply referring to conventions in a general Savings Clause is not only ineffective but risks judicial intervention in the most highly-politicised circumstances of all, a dispute over the conduct of business between the two Houses. This would be a constitutional disaster. (Paragraph 92)

15.  We think it inevitable—and desirable—that following any reform the two Houses will need to establish a means of defining and agreeing the conventions governing the relationship between the two Houses and thereafter keeping them under review. We agree that any new conventions or modifications of existing conventions should be promulgated by the adoption of a "concordat" in the form of parallel, identical resolutions prepared by a Joint Committee and adopted in each House. We note, however, that any concordat will only have force so long as both chambers continue to accept its terms. (Paragraph 93)

16.   We agree with the Cunningham Committee report, noted with approval by both Houses of Parliament, that as there are now firm proposals in this draft legislation to change the composition of the House of Lords preliminary work should begin as soon as possible. We recognise, however, that it cannot be completed until after 2015. There would be little point in finalising a concordat to which elected members of the second chamber were not a party. (Paragraph 94)

Electoral System, Size, Voting System and Constituencies

Ratio of Elected to appointed members

17.  Some members of the Committee would prefer a fully appointed House. They hold the view that as the House of Commons has primacy it holds ultimate responsibility for legislation. That being the case, they do not consider it necessary for the members of the House of Lords to be elected. However, a fully appointed House is not being proposed in the draft Bill. (Paragraph 106)

18.  If there are to be elections, the Committee agrees on a majority with the proposal for a 80 per cent elected and 20 per cent appointed House as a means of preserving expertise and placing its mandate on a different footing from that of the Commons. (Paragraph 107)


19.  The Committee agrees that a House of 300 members is too small to provide an adequate pool to fulfil the demands of a revising chamber, for its current range of select committees, and for the increasingly common practice of sitting as two units: the main chamber and Grand Committee. In addition, we have recommended that appointed members should not have to attend as frequently as those who are elected. Accordingly, we favour a House of 450 members. (Paragraph 114)

The electoral system

20.  The Committee would like the Government to give further consideration to a nationally indirectly elected House as an alternative in the event that Parliament does not support direct elections with geographical electoral boundaries. (Paragraph 120)

21.  A majority agreed with the Government's proposal to use a form of proportional representation for elections to the House of Lords. A proportional system will best preserve the independence and political diversity of the current House of Lords and ensure that it retains a different character from that of the House of Commons. It is less likely to lead to elected members challenging the link between MPs and their constituents. We consider these issues in more detail below. Most importantly, however, it makes it unlikely that any one party will achieve and maintain a majority in the upper chamber. (Paragraph 124)

22.  We do not support the introduction of a closed list system for the sort of regional elections proposed in the draft Bill. (Paragraph 129)

23.  The Committee considers that it will be for the political parties to address the diversity issue in their selection of candidates so that a reformed House will be no less diverse on gender, ethnic or disability grounds than the present one. (Paragraph 143)

24.  A proportional system of election based on STV or open lists will be new to English voters, less so to voters in Scotland, Wales and Northern Ireland. The Government must publicise the new system so as to maximise electors' understanding and to avoid confusion arising from the use of different voting systems on the same day. (Paragraph 146)

25.  In the Committee's view, the voting system chosen should give voters the widest choice possible of where to cast their preferences, whether that is within a single party or across candidates from multiple parties and yet be as intelligible as possible to the voter. We also believe that voters who wish to simply vote for a political party, rather than individual candidates, should be free to do so. We looked into the potential, therefore, for a voting system that would encapsulate these two conditions. It would:

  • allow voters the option of casting a simple party vote; and
  • allow voters to express preferences among individual candidates across, as well as within, parties. (Paragraph 147)

26.  The Committee recommends that the Government should consider introducing the version of STV currently used in New South Wales, as an alternative to the pure STV system currently proposed in the draft Bill. (Paragraph 152)

27.  Given the relative complexity and novelty of the system, compared with first-past-the-post, we recommend that the Government should ensure that ballot papers are not regarded as spoiled where a clear intention has been expressed, reflecting the practice at other UK elections. (Paragraph 153)

Non-renewable terms

28.  Non-renewable terms have the potential to make members of a reformed House of Lords more independent, both from public opinion and from party structures (since they would not be standing for re-election on a party ticket). They would do much to distinguish the character of the reformed House from that of the House of Commons. Although political parties would continue to be accountable to the electorate at the ballot box, individual members would not. (Paragraph 164)

29.  Allowing members to stand for re-election would make them feel more individually accountable, but would have the disadvantage of members of the reformed House of Lords having a similar electoral mandate to those elected to the House of Commons and might encourage them to undertake more constituency-based activities. It would, however, allow the electorate the choice of keeping an elected member of the Lords they support rather than being deprived of that option. (Paragraph 165)

30.  The Committee is divided on whether election should be for a non-renewable term or whether a single further term—say for ten years—might be available for any member wishing to stand again. (Paragraph 166)

31.  A majority of the Committee agree with the Government's proposal for non-renewable terms. (Paragraph 167)

Length of term

32.  The Committee considered the arguments in favour of 15-year terms. It should be noted that the transition period will be determined by the length of term, and as such was a significant factor in the Committee's deliberations. With a 15-year term, transition would end in 2025, allowing for more members of the current House to remain for longer thus guaranteeing continuity and the preservation of the current ethos of the House. Fifteen-year terms would also enable election by thirds, which make it less likely that short-term electoral swings would shift the party balance in the reformed House dramatically. And the longer the term, the weaker the mandate of the House of Lords as a whole compared with the House of Commons. (Paragraph 171)

33.  A 10-year term would have some of these characteristics, but to a lesser degree. On the other hand, a 10-year term might be more appealing to candidates who wished to stand for election in mid-career. It would also make the House as a whole more accountable, allowing the electorate to influence its composition to a greater extent at each election since half of the House would be elected at each general election. (Paragraph 172)

34.  A majority of the Committee consider on balance that a 15-year term is to be preferred. (Paragraph 173)

The timing of elections

35.  We recognise the concerns expressed by some witnesses over the prospect of holding elections to the House of Lords at the same time as elections to the House of Commons, in particular the likelihood that it might lead to elections to the Lords being overshadowed by the general election. On balance, we consider that the arguments in favour of doing so—the reduced cost, the avoidance of mid-term 'protest voting' and minimum disruption to the Government's legislative programme—outweigh these drawbacks. We support the Government's proposals to hold elections to both Houses of Parliament at the same time. (Paragraph 181)

Accountability mechanisms

36.  We observe that under the provisions of the Fixed-term Parliaments Act 2011 there are circumstances in which general elections could take place before five years have elapsed. Those circumstances are covered in the draft Bill. (Paragraph 182) We consider that a recall mechanism would be an appropriate way to ensure elected members can be held accountable by the electorate in exceptional circumstances. We do not attempt to set out the details of a scheme in this report, but we recommend that the Government make provision in the Bill for a recall mechanism, tailored to multi-member constituencies, based on constituency petitions that could force members serving the first ten years of their 15-year term to stand for re-election at the next set of elections to the House of Lords. The Government should consider how to minimise the risk of the recall mechanism being manipulated for frivolous or vexatious reasons. (Paragraph 188)

37.  We agree that members should be required to participate regularly in the work of the House. We recommend below that appointed members should not have to commit to the same level of activity as elected members of the House. Elected members, however, will be salaried and expected, as a general rule, to spend most of their time on their parliamentary duties while the House is sitting. In addition, unlike members of the House of Commons they will not have to deal with a large volume of individual casework. We consider it reasonable, therefore, to set high expectations for their expected level of participation. We recommend that elected members should have to stand for re-election at the next general election if they fail to attend over 50 per cent of sitting days in a session. A decision to force a member to stand for re-election on these grounds would have to be agreed to by the House, on a report from the Privileges and Conduct Committee, to ensure that members with extenuating circumstances were not penalised inappropriately. (Paragraph 190)

Filling vacancies

38.  We agree with the Government's view that by-elections should not be used to fill vacant seats. The multi-member constituencies proposed by the Government would contain millions of voters making by-elections extremely expensive, and they would violate the principle that members of the reformed House of Lords should be elected by proportional representation. (Paragraph 196)

39.  In the circumstances, we agree with the Government proposal to replace departed members with substitute members only until the next set of elections to the House of Lords. (Paragraph 197)

40.  The Committee recommends, however, that if a vacancy should occur within a year of the next set of elections to the House of Lords, the seat should remain vacant and an additional member should be elected at the next election to fulfil the remainder of the departed member's term. (Paragraph 204)

41.  A "count back" system in which the original election is re-counted ignoring votes for the departed member has some merit, but we do not consider that it is feasible given the long, multi-parliament terms of elected members. If a vacancy arose 13 years into a 15-year term, it would mean re-running election results from over a decade ago. Apart from any other considerations, we think it unlikely that many of the candidates from the original election would be in a position, or willing, to take up a seat in Parliament for a relatively short interim period such a long time after the election took place. (Paragraph 205)

42.  Of the options available, the Committee prefers the Government's preferred option—in which the seat would go to the candidate with next highest number of votes in the same party at the last election. This would not disrupt the party balance in the House mid-term. (We note that an exception to this rule might occur if a seat was vacated by an independent member. Under the Government's proposals the seat would be filled by the candidate with the next highest number of votes at the last election, irrespective of party. This could result in a change to party composition). Even this arrangement has its shortcomings in that sometimes reliance will have to be placed on electoral information several years old. (Paragraph 206)

Constituency issues

43.  The Committee considers that elected members will inevitably be concerned with, and be approached about, regional, local and legislative matters. (Paragraph 221)

44.  The Committee believes that in general it would be inappropriate for elected members to involve themselves in personal casework of the kind currently undertaken by MPs on behalf of their constituents. (Paragraph 222)

45.  The Committee observes that the level of engagement with constituency work will be governed by the resources available to elected members. Accordingly, we recommend that IPSA should make no provision for members of the reformed House to deal with personal casework, as opposed to policy work, or to have offices in their constituencies. The Committee believes that the practical difficulties of large regional constituencies, together with a lack of resources, will make any substantial level of individual casework less likely. We anticipate, however, that some elected members will seek to carve out a constituency role for themselves even without dedicated resources and we do not see how this can be prevented. (Paragraph 223)

46.  The Committee considers that no further action should be taken to define the manner in which elected members of the reformed House carry out their representative role. As the Minister suggested it will be for the members of the two Houses to come to a mutual understanding on these matters. (Paragraph 224)

Appointments, Bishops and Ministers


47.  We agree that the Appointments Commission should be placed on a statutory footing. (Paragraph 231)

48.  We support the establishment of a statutory Joint Committee of members of the two Houses to oversee the Appointments Commission, as proposed in the draft Bill. This Joint Committee should oversee the governance of the Commission in addition to the responsibilities set out for it in the draft Bill. (Paragraph 232)

49.  We support the Government's proposal that the Appointments Commission could appropriately include former and current members of the House of Lords, but not serving MPs or Ministers. (Paragraph 233)

50.  We consider that independence, expertise and experience, and diversity should form the core values around which the Appointments Commission should construct its criteria for appointing members to the House of Lords. While we recognise that the Appointments Commission should apply its criteria independently, we believe that it is appropriate that Parliament should have the final say on the criteria devised by the Appointments Commission, and the guidance it produces on how it will apply those criteria. (Paragraph 248)

51.  We consider that there would be merit in placing on the face of the Bill certain broad criteria to which the Appointments Commission "should have regard" when recommending individuals for appointment. We recommend that these should be: an absence of recent overt party political affiliation;

  • the ability and willingness to contribute effectively to the work of the House;
  • the diversity of the United Kingdom, in the broadest sense;
  • inclusion of the major faiths; and,
  • integrity and standards in public life. (Paragraph 249)

52.  Variations of the Appointment Commission's criteria, or guidance produced under them, should be subject to parliamentary approval through the super-affirmative procedure. (Paragraph 250)

53.  We consider that the advantages of having part-time appointed members (the maintenance of professional expertise and the ability to attract individuals who would not want to commit to a full-time role) outweigh the possible disadvantage (that it might result in a two-tier House). We recommend therefore that appointed members should not have to commit to the same level of activity as elected members of the reformed House of Lords. (Paragraph 255)

54.  To ensure that there is a mechanism to remove appointed members who fail to contribute to the work of the House as expected, we recommend that appointments made by the Commission should be for an initial term of five years, with the expectation of reappointment up to the maximum limit of an elected term. (Paragraph 257)

55.  The Committee expect that the Appointments Commission will use its discretion to decide what they consider to be an appropriate "contribution to the work of the House," and that such a definition will be published. (Paragraph 258)

56.  Finally, the Committee note that appointed members wishing to leave the House at the end of a five-year period could do so by giving notice to the Appointments Commission that they did not wish to be reappointed. (Paragraph 259)

Appointed Ministers

57.  We recommend that a reformed House of Lords should continue to contain Ministers of the Crown to represent the Government. In a fully-elected House, there should be no power to appoint additional members to carry out ministerial roles. (Paragraph 266)

58.  We agree that the Prime Minister should be able to appoint a small number of additional members to a hybrid (part-elected, part-appointed) House as Ministers of the Crown. We believe that these members should have the right to sit, but not to vote, in a reformed House. (Paragraph 267)

59.  We acknowledge that the appointment of ministers to the Lords is a significant power of patronage. We have recommended that such appointees should not vote. Were the Government not to accept this recommendation, however, we would recommend that the number of additional ministerial appointments should be limited, to no more than five at any one time. This limit should be on the face of the Bill. (Paragraph 268)

60.  We also agree that Members appointed to the House of Lords specifically as Ministers of the Crown should cease to be Members on the termination of their ministerial appointment. This reflects the special circumstances under which they come to be Members. (Paragraph 269)

61.  The House of Lords Appointments Commission should vet the individuals appointed as Ministers of the Crown for probity. In this capacity, it should act only as an advisory body to the Prime Minister. It should not have the power of veto over ministerial appointments. (Paragraph 270)

Lords Spiritual

62.  The Committee agrees that, in a fully elected House, there should be no reserved places for bishops. (Paragraph 288)

63.  The Committee agrees, on a majority, that bishops should continue to retain ex officio seats in the reformed House of Lords. (Paragraph 289)

64.  The Committee agrees, on a majority, with the Government's proposal that the number of reserved seats for bishops be set at 12 in a reformed House. (Paragraph 290)

65.  The Committee recommends that the Appointments Commission consider faith as part of the diversity criterion we have recommended above. (Paragraph 291)

66.  The Committee recommends that the exemption of bishops from the disciplinary provisions be removed, as requested by the Archbishops. (Paragraph 292)

67.  The Committee recommends that any approach to the Government by the Church to modify the provision on the named bishops be looked upon favourably. (Paragraph 293)

68.  The Committee recommends that Clause 28(4) be left out of the Bill so as to allow greater flexibility in transition arrangements so that any women bishops and the wider pool of diocesan bishops can be eligible for appointment in the second transitional parliament. (Paragraph 294)

Transition, Salaries, IPSA, Disqualification, etc


69.  Of the options set out in the White Paper, the Committee considers option 1 the best of those canvassed. (Paragraph 312)

70.  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. (Paragraph 313)

71.  The Committee recommends an alternative fourth option with three characteristics:

a)  a 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

c)  parties and crossbench peers to determine for themselves the persons to serve as transitional members. (Paragraph 317)

72.  The 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. (Paragraph 318)

73.  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 members. (Paragraph 319)

Salaries, etc

74.  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. (Paragraph 327)

75.  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. (Paragraph 331)


76.  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 serious criticism. (Paragraph 336)

77.  There are 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. (Paragraph 342)

78.  The 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 appointed members. (Paragraph 344)

Parliamentary Privilege and the draft House of Lords Reform Bill

79.  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 provision itself. (Paragraph 352)

80.  We consider that Clause 58 of the draft Bill is unnecessary and should be omitted. (Paragraph 355)

81.  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 of Lords Act 1999. (Paragraph 357)

82.  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". (Paragraph 358)

The Parliament Acts

83.  It 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. (Paragraph 367)

84.  If the Government wish to ensure that the Parliament Acts apply to a reformed House, they should make statutory provision for it. (Paragraph 368)

Dispute Resolution

85.  We 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. (Paragraph 371)


86.  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 reform. (Paragraph 384)

87.  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. (Paragraph 385)

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