House of Lords ~ Size and Reform

The Parliament Act 1911 begins by stating that it is...

"An Act to make provision with respect to the powers of the House of Lords in relation to those of the House of Commons, and to limit the duration of Parliament.

Whereas it is expedient that provision should be made for regulating the relations between the two Houses of Parliament:

And whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation ....."



An unelected and large Chamber:

107 years later the House of Lords remains unelected but, unlike 1911, its principal membership is no longer made up of hereditary peers.  This came about because of key reforms such as the introduction of Life Peerages (Life Peerages Act 1958) and the removal of most of the hereditary peers (House of Lords Act 1999).

We see from the Life Peerages Act 1958 that life peerages are conferred by Her Majesty and that a life peer becomes entitled to receive a writ of summons "to attend the House of Lords and sit and vote therein accordingly."

The House of Lords has a considerable size.  At 27th January 2016 - see HERE - the total membership (the ‘absolute’ membership) of the House of Lords was 859. However, excluding those currently ineligible to sit (such as Members on leave of absence or those holding particular posts) the ‘actual’ membership was 820.

The creation of peers:

The right to create peerages is a Royal Prerogative power  and it is obviously of considerable importance given the entitlement of the holder to become part of the legislature. The process for creating new peers is considered at Parliament - How Members are Appointed.  Members of the House of Lords are appointed by the Queen on the advice of the prime minister.  Whilst there are no set times for the making of appointments, it has become common for new peers to be created at times such as a Dissolution of Parliament.  Some non-party-political members are recommended by an independent body, the House of Lords Appointments Commission which is an independent body established in 2000. The Commission recommends individuals for appointment as non-party-political life peers. It also vets nominations for life peers, including those nominated by the UK political parties, to ensure the highest standards of propriety. Members can be nominated by the public and political parties. Once approved by the prime minister, appointments are formalised by the Queen.

Democratic idealism?

The creation of peers runs against the democratic ideal of a wholly elected Parliament because it is essentially a means of appointing individuals to Parliament.   Protocol 1 - Article 3 to the European Convention on Human Rights requires free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. In the UK, the people have no ballot on the membership of the House of Lords. 

The idea that it is a requirement of democracy to elect the House of Lords has not gone unchallenged.  For example, Professor Sir John Baker, Downing Professor Emeritus of the Laws of England at the University of Cambridge, challenged "the widespread assumption that the House of Lords must be elected as a requirement of democracy. That seems to me to be quite a serious fallacy given the unusual nature of our constitution" - The House's essential scrutiny role "does not require the sanction of the ballot box to give it legitimacy any more than the judicial role, because the House of Commons can insist on the last word"- [for this and other views see the Joint Committee on the Draft House of Lords Reform Bill report of March 2012 - The principle of an electoral mandate].

Whether an elected House of Lords would challenge the supremacy of the House of Commons is a point often raised in debate on this topic.  The "supremacy" of the Commons in relation to Money Bills is now built into the Parliament Acts.  Furthermore, the Parliament Acts have resulted in the Lords having a delaying power but not an absolute veto on legislation.  (The absolute veto remains for any Bill  containing any provision to extend the maximum duration of Parliament beyond five years).  There is also the "Salisbury Convention" - authoritatively discussed by Professor Mark Elliott of Cambridge University on his Public Law for Everyone blog - HERE.  The Convention normally limits the Lords ability to block legislation implementing manifesto commitments of the government.

Rodney Brazier - (Professor of Constitutional Law, University of Manchester) - in his book "Constitutional Reform - Reshaping the British Political System" (OUP 3rd Ed)  refers to the "Second-Chamber Paradox" (chapter 5).  Brazier argues that, on the one hand, our Parliament is enhanced by the presence of some people from outside the world of politics who bring their individual experience and expertise to bear.  Further, the House tends to look at legislation with "something approaching an impartial rigour" and the House is therefore a counterweight to the elective dictatorship.  On the other hand, a House without elected members is "anomalous and unrepresentative." 

The House of Lords does a very good job of revising and improving legislation and the reports of its various committees are particularly detailed.  Many examples of its committee work could be given but, following the referendum, the reports of the House of Lords Constitution Committee and the EU Select Committee are particularly outstanding in their analysis of issues arising from Brexit.  It is also worth noting that the Lords has sometimes shown itself to be more supportive of civil liberties than the elected Commons.  In part, this may be due to the fact that life tenure helps members to be less fearful of political party machinery.    


Reform:

In its history the House of Lords has undergone many changes - see Lords History: Reform. The most significant changes have come about through the Parliament Acts 1911-1949 limiting the power of the Lords to reject Bills, the introduction of Life Peerages, the right to disclaim a peerage (Peerage Act 1963) and the House of Lords Act 1999 removing most of the hereditary peers.  An attempt by the coalition government (2010-15) to reform the Lords was abandoned in 2012.

2017 Proposals:

In 2017 a Committee on the Size of the House of Lords was appointed by the Lord Speaker under the chairmanship of Lord Burns.  See Parliament - Reduce House of Lords to 600 members.

The committee recommended the House be reduced to 600 Members, and its size capped at that number, in a move that would - for the first time in history - establish a maximum size of the House of Lords and link its composition to general election results.

• Report: Lord Speaker's committee on the size of the House ( PDF 1.78 MB)
• Lord Speaker's committee on the size of the House

The committee believe this system, which is driven by the House's desire to reduce its numbers, would result in the House making an even more effective contribution to the work of Parliament. The Committee was chaired by Lord Burns and had members from all parties and the crossbenches.  The committee hoped that the changes could be achieved without legislation and a membership of 600 achieved by the end of 10 years.  Members would be appointed to 15 years terms and no political party would be allowed an absolute majority.  A minimum of 20% (i.e. 120 seats) would be reserved for independent crossbench members largely appointed by the House of Lords Appointment Commission.

The Lord Speaker noted that - "if the system the committee proposes is to succeed it will require political agreement from the main parties and of course the Prime Minister herself. I very much hope that will be forthcoming after everyone concerned has had the opportunity to study the report."

The proposal is discussed at - Constitution Unit - The size of the House of Lords: What next ?

Lords Debates Size of the House Report - December 2017.

Brexit?

There have been comments that the Prime Minister might recommend the creation of additional peers known to be in favour of Brexit.  To do this would not sit well with the Burns Committee proposals.  It also raises an interesting question as to whether new peers ought to be created to force a Bill through the House when there is normally the Parliament Act machinery to resolve disputes between the Houses.  The usual Parliament Act process cannot apply to the European Union (Withdrawal) Bill because of the requirement in the Acts for two sessions of Parliament and the fact that the government itself made the present session of Parliament 2 years in duration.

Canada and Australia:

Canada and Australia have two chamber national parliaments but the "Upper Chamber" or Senate is, in both cases, considerably smaller than the UK House of Lords.

Canada has a Senate which is appointed but has only 105 senators - Canadian Parliament.  The governor general summons and appoints the 105 senators on the advice of the prime minister, while the 338 members of the House of Commons—called members of parliament (MPs) are directly elected by Canadian voters.  Senators may serve up to age 75.

Canadian Constitution
 
Australia has a two House Federal Parliament with 76 senators who are elected - Parliament of Australia.