Parliament took a tiny step toward reforming the House of Lords when the House of Lords Reform Act 2014 received Royal Assent last Wednesday. The changes are small but significant: peers can now resign their seats, and peers who have been convicted of serious offenses will lose the right to sit in the House.
Historically, peers held their seats for life since the law held that every qualified peer was entitled to a writ of summons to Parliament, whether they wanted one or not. This led to a situation where many peers only attended sporadically (the so-called ‘backwoodsmen’). In 1958, the House attempted to address this problem by allowing absentee peers to request ‘leave of absence.’ Peers on leave wouldn’t be able to attend until their leave expired, or they signaled their intent to return (for which one month’s notice was required). However, leave only lasted for a single Parliament, so peers had to reapply each time a new Parliament assembled.
Expulsion was also impossible, though peers could be deprived of their seats by Act of Parliament. Such an act could be penal in nature (e.g. two peers who fought for Germany in World War I had their titles revoked under the Titles Deprivation Act 1917), or it could be part of a broader program of constitutional change (e.g. the House of Lords Act 1999, which removed most of the hereditary peers from the House).
Even suspension was problematic. In 2009, the Committee for Privileges considered the extent to which the House could discipline its members. The committee received two conflicting pieces of advice. The Attorney General of the day (Baroness Scotland of Asthal) argued that the House lacked the power to suspend a peer. In a nutshell, her contention was that a peer’s right to a seat was a “fundamental constitutional right” conferred by the Crown by Letters Patent, and it could only be abridged by an Act of Parliament.
On the other hand, Lord Mackay of Clashfern (a former Lord Chancellor under Margaret Thatcher and John Major) argued that the House’s right to regulate its own internal affairs gave it the ability to suspend peers for a definite period within the lifetime of a single Parliament.
The issue was far from academic since the media had identified several peers who had allegedly abused the parliamentary expenses system, and the House was under a great deal of pressure to take action against them. Not surprisingly, the committee ultimately endorsed Lord Mackay’s position, and their conclusions were accepted by a vote of the whole House. Since then, the House has used its newly rediscovered power on several occasions (the most recent case being Lord Hanningfield, who has been suspended for the remainder of the Parliament because he abused the allowance system).
Nevertheless, there have been calls to bolster the Lords’ disciplinary powers even further and allow the House to expel a member. In its original form, the Constitutional Reform and Governance Bill included provisions that would have done just that (it would also have allowed peers to resign). However, those provisions were removed from the bill in order to ensure that it reached the statute book before the 2010 General Election.
In addition, Liberal Democrat peer Lord Steel of Aikwood has introduced several private member’s bills over the years that would have strengthened the House’s disciplinary powers in addition to tinkering with its membership (Lord Steel believes that the remaining hereditary peers should leave, and the House of Lords Appointments Commission should be put on a statutory footing). Although his bills usually pass the Lords, they invariably die in the Commons. Lords reform is one of the Gordian Knots at the heart of the British constitution, and even modest attempts to change the status quo usually don’t get very far (the House of Lords Act 1999 being a rare exception).
However, a cross-party group of MPs introduced a slimmed-down version of Lord Steel’s bill in the Commons in June 2013. Gone were the potentially controversial proposals to end by-elections for hereditary peers and make the Appointments Commission official. Instead, it simply gave peers the ability to resign and provided that they would lose their seats if they (a) failed to attend a session without seeking leave of absence; or (b) were convicted of a serious offense and sentenced to imprisonment for a year or more.
The stars must have aligned just right, for the bill sailed through the Commons and the Lords and made it onto the statute book. While it’s hardly a piece of earth-shattering legislation, it does solve some very real problems. Peers convicted of serious offenses shouldn’t be able to waltz back into Parliament as if nothing happened, and their permanent removal may help burnish the House’s tarnished image.
The new retirement scheme might also reduce congestion in the House (there are more than 800 peers at the moment!), though I doubt there will be the sort of mass exodus that the House needs in order to reduce it to a more manageable size. There’s no minimum threshold for attendance (and it would be difficult to impose one given the voluntary nature of the House of Lords), so a peer only needs to attend a single sitting to be in good standing. On a more mercenary level, peers can claim an allowance of £300 for each sitting they attend (unlike MPs, peers don’t receive a salary or a pension). Consequently, it’s hard to see why anyone would want to retire.
There may be further attempts to tinker with the Lords in the next session. Baroness Hayman (the ex-Lord Speaker) plans to introduce a bill to stop the by-elections for hereditary peers and place the Appointments Commission on a statutory footing. But these proposals are less likely to meet with cross-party support, so I would be surprised if they made it into law. When it comes to Lords reform, the perfect is usually the enemy of the good.