This post is the fifth in a series of six updates for the 2015-16 academic year. The posts in this series are co-written by Mark Elliott and Robert Thomas, the authors of Public Law, published by Oxford University Press. Further information about Public Law can be found here. Our focus in these updates is on six key areas in which the constitution is undergoing, or is likely to undergo, change. We have taken as our reference point the outcome of the 2015 general election, and its likely implications for the future of the British constitution. In this fifth post in the series, we consider the implications of the 2015 election for reform of the House of Lords.
Reform of the House of Lords has — at least to some extent — been on the political agenda for a very long time: the Parliament Act 1911 was supposed to be a temporary measure, its preamble recording an intention “to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis”. That intention, however, remains unrealised more than a century later. The House of Lords Reform Bill introduced in the last Parliament would, if enacted, have introduced major changes, including the removal of the remaining hereditary peers and the introduction of 15-year non-renewable terms (in place of life peerages). Under the Bill, a majority of peers would have been elected, with a minority appointed. However, the Bill was withdrawn as a result of disagreement between the coalition parties.
Prior to the 2015 general election, the perceived improbability of a single-party Conservative government meant that House of Lords reform seemed likely. The Labour Party promised “an elected Senate of the Nations and Regions, to represent every part of the United Kingdom, and to improve the democratic legitimacy of the second chamber”, while the Liberal Democrats said that they would “[r]eform the House of Lords with a proper democratic mandate, starting from the proposals in the 2012 Bill”. Meanwhile, the Scottish National Party said that “the House of Lords should be scrapped and replaced with a fully elected second chamber”.
In contrast, the Conservative Party envisaged less far-reaching reform:
While we still see a strong case for introducing an elected element into our second chamber, this is not a priority in the next Parliament. We have already allowed for expulsion of members for poor conduct and will ensure the House of Lords continues to work well by addressing issues such as the size of the chamber and the retirement of peers.
Concerns about misconduct — and how the House of Lords deals with it — arose most recently in the light of allegations of criminal misconduct against Lord Sewel, previously best known for his association with the Sewel Convention. In fact, the Lords’ powers in this regard have been considerably strengthened. Until recently, the most that could be done by the House of Lords was to suspend (rather than expel) a member on the ground of misconduct. However, the position is now altered by two recent pieces of legislation. First, the House of Lords Reform Act 2014 stipulates that any peer who is sentenced to more than 12 months’ imprisonment automatically ceases to be a member of the House of Lords. Second, the automatic disqualification provided for by the 2014 Act is supplemented by the House of Lords (Expulsion and Suspension) Act 2015, which augments the Lords’ capacity on a discretionary basis to deal with misconduct. In particular, the 2015 Act extends the period for which a member can be suspended, and permits the House of Lords to expel a member even if the automatic expulsion criteria in the 2014 Act are not satisfied.
The 2014 Act also makes (very modest) provision in the light of concerns about the size of the second chamber’s membership. It facilitates resignation and causes membership to lapse (subject to certain qualifications) if a peer does not attend the House at any point during a given parliamentary session. However, concerns about the size of the House of Lords — and about the Prime Minister’s powers of patronage — persist. Such concerns were reignited by the dissolution honours list published in summer 2015, in which 26 out of 45 new peers were Conservative politicians or supporters. In the light of this, Professor Meg Russell of the Constitution Unit has argued that the Prime Minister is “failing in his constitutional duty to appoint responsibly to the Lords, and to protect and maintain the reputation of parliament”. A related set of concerns pertains to the cost of the House of Lords, not only because of the obvious cost implications of the second chamber’s ever-increasing membership, but also in the light of the system for paying individual peers. For example, a recent Electoral Reform Society report points out that in the 2014-15 parliamentary session, over £100,000 was claimed in allowances and expenses by peers who did not vote at all. It may be that some of these concerns will be answered by the proposals, promised in the Conservative Party’s manifesto, to address the size of the chamber and the related issue of the retirement of peers. However, no such proposals have yet been published.
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