The House of Lords: "It is often described as 'unreformed' but the removal of most hereditary peers in 1999 was transformative." © Geoff Pugh/Telegraph/PA Archive/Press Association

Time to cut the House of Lords down to size

The Scottish referendum raised all sorts of questions about the purpose of the House of Lords—but the most urgent task is to reduce its numbers
February 19, 2015
Read a transcript of Prospect's roundtable on House of Lords reform

Eighteen years ago, Tony Blair’s first government swept to power on a manifesto promising a two-stage reform of the House of Lords: to remove the hundreds of hereditary peers then dominating the chamber, and subsequently to establish a “more democratic and representative” replacement. The first stage largely happened; the second did not—though not for want of discussion. Since 1997, six consecutive government white papers have been published on Lords reform, plus innumerable reports from parliamentary committees and outside bodies (including a Royal Commission). In 2011 Nick Clegg got as far as introducing a bill to create a largely elected second chamber, but abandoned it following joint opposition from Conservative and Labour MPs. Yet lack of progress on Lords reform is not a product of our times or of particular weakness on the part of today’s political leaders.

The topic of Lords reform has baffled some of Britain’s greatest political minds for over 100 years, leading the historian Peter Hennessy to dub it the “Bermuda Triangle of British politics.” With the general election looming, and particularly in the wake of the Scottish independence referendum result, politicians are preparing to enter this dangerous zone again. All feel that they must promise something in response to democratic pressure, added to which the Lords under David Cameron has grown absurdly large. Some hope that a reformed second chamber might help resolve the far bigger constitutional conundrums now facing the United Kingdom and envisage a “territorial senate” able to bind the nation’s disparate parts together. Yet the history of Lords reform suggests that the grander the plans the greater the likelihood of failure. Any hope of progress depends on keeping two questions separate: What is the ultimate goal for large-scale Lords reform? And what smaller measures can be achieved in the short term?

Before considering the future, it’s worth taking stock of where we are. The Lords is often described as “unreformed,” and the change in 1999 removing most hereditary peers (which left just over 10 per cent, under a cross-party deal with the Conservatives) is generally seen as small. But it was transformative. The superficial resemblance between the post-1999 chamber and its predecessor (the same red benches, the same predominantly grey hair) masks some very profound differences.

Pre-1997 the House of Lords was an overwhelmingly Conservative chamber, and had been for 200 years. In 1945, Clement Attlee’s Labour government began with just 16 peers, in a chamber of over 700. In 1997 there were fewer than 200 Labour peers, against almost 500 Conservatives (and 300 or so “crossbenchers,” many with Conservative leanings). The departure of most hereditaries, coupled with subsequent appointments, ended this anomaly; today the main two parties in the Lords are evenly matched, while the numbers of Liberal Democrat and minor party peers have grown substantially. The appointment of crossbenchers now largely rests with the House of Lords Appointments Commission (established in 2000), in a professionalised process that seeks diversity of expertise. A peerage is no longer primarily an honour, but a job. There has been progress on other forms of diversity as well: in 1996 just 7 per cent of peers were women; now the figure is 24 per cent—not ideal, but higher than the House of Commons. And there are many more ethnic minority peers than MPs.

These changes have had an important impact on the culture of the Lords. Members remain acutely aware of their lack of democratic mandate, but nonetheless feel more representative than before, particularly in party terms. While the Conservative-dominated chamber recognised its lack of legitimacy to challenge Labour governments, broad alliances of Conservatives, Liberal Democrats and crossbenchers felt justified in challenging Blair on issues such as civil liberties. The newly assertive chamber forced frequent policy climb-downs. It now discusses a panoply of topics, its committees have become more vibrant, and its “no overall control” quality makes it a key target for all kinds of interest groups. It was a powerbase for the Liberal Democrats long before the formation of the coalition in 2010, helping cement their relationship with the Conservatives. Today Labour—though numerically weaker than the opposition parties pre-2010—builds frequent alliances with crossbench experts to defeat the government. Particularly during the period 1999 to 2010, the Lords served as a hub (albeit unelected) of pluralist politics of a sort unfamiliar at Westminster. Before the 1999 reform many experts described the British parliament as effectively “unicameral”—that is, having only one chamber that mattered. And that chamber, the House of Commons, was seen as government-dominated. But after 1999 bicameralism has been revived, with the Lords doing much more to provide government scrutiny and accountability than before—which benefits the policy process.
"Had the Conservatives won a Commons majority in 2010, they would have faced far greater resistance from the Lords"
All this tells us important things about the Lords as it is now, but also about the dynamics of Lords reform. While ambitious proposals have long been on the agenda, the reforms that happen have always been incremental. Yet ostensibly small changes can have large effects. This is true not only of 1999, but also of earlier periods. In 1958, the reform allowing life peers to be appointed was seen as a temporary stopgap, until bigger membership reform, but it substantially revived the chamber. It was 41 years until the next adjustment was made. The change to the power of the chamber enshrined in the 1911 Parliament Act had likewise been seen as short term. It promised a chamber “constituted on a popular instead of hereditary basis,” which could not “be immediately brought into operation.” This stopgap, which transformed the relationship between government, Commons and Lords, has now passed its 100th birthday.

Cameron thus inherited an at least semi-reformed House of Lords in 2010. He faced less resistance from the chamber than Labour did—but this was a product of coalition with the Liberal Democrats, rather than any vestigial conservatism in the institution. Ironically, had the Conservatives won a Commons majority in 2010, they would have faced far greater resistance from the Lords. Just as the two coalition parties previously acted in concert against Labour, so Labour could readily have formed ad hoc Lords alliances with the Liberal Democrats to defeat a single-party Conservative government (and could yet do so, post-2015). Instead, since 2010 the two coalition parties have easily outnumbered Labour, which can win Lords votes only if joined by sufficient crossbenchers or government rebels.

Despite the coalition’s relative strength, Cameron has created new peers on a lavish scale—appointing members at a faster rate than any other prime minister since the advent of life peerages in 1958. Outdoing Blair (who was frequently criticised for excessive “cronyism”) has been no mean feat. Numbers in the chamber have risen precipitously since 1999: compared with 666 just after the hereditaries departed, almost 850 are now eligible to attend—a totally unsustainable increase of a third in 15 years. One problem is that (under pressure from the Liberal Democrats) Cameron has sought to bring the appointed chamber into line with general election vote shares. But since members serve for life, and there are no forced retirements, proportionality can only be increased by swelling numbers further. This is partly an age-old problem: prime ministers have always appointed more peers to their own side than to the opposition, creating a tit-for-tat system of rebalancing each time a new government takes office. The hereditary chamber had ballooned in size, from fewer than 350 members in 1801 to over 600 a century later, and over 1200 by 1998. History is now repeating itself in the chamber of life peers.

What about the long-term future of the Lords? It is worth considering here the rationales other countries give for having a second chamber. These bodies began everywhere as elite institutions—chambers of peers previously existed throughout Europe, and also as far afield as Japan. Most states underwent more profound constitutional upheavals than the UK, during which they reformed these chambers. Today the primary justification for second chambers is territorial representation. The best-known example is, of course, the United States, but there are federal second chambers of various kinds around the world. There has been some interest in the UK in such models since at least the 1990s and this has intensified since the Scottish referendum. Labour now favours a “senate of the nations and regions” and plans to refer the idea to a constitutional convention on the shape of a post-referendum UK if it wins the general election.

There are many models that a territorial senate could follow. US and Australian senators are directly elected by citizens to represent their states; Canadian senators are appointed, while many countries use forms of indirect election. In Austria, India and South Africa members of the second chamber are elected by provincial assemblies; France includes local and regional councillors; Spain uses a mix of indirect election and direct choice by citizens. Germany is a unique but interesting case, where the Bundesrat comprises ministers from regional (Länder) governments. Some argue that this is not a parliamentary chamber at all, but merely an intergovernmental body. Nonetheless it can veto key laws and makes an important contribution to binding the German federation together.

So there is plenty for a future constitutional convention to consider. But there are also various challenges. First, even when looking at overseas experience there is not much indication—Germany excepted—that territorial chambers bind nations together very effectively. The Spanish and Canadian senates have notably failed to quell separatist sentiment (though without their presence it could arguably have been worse). Second, some in the UK debate—most obviously the Scottish National Party—have no interest in a settlement that binds the UK more firmly together. Third, the unevenness of UK devolution creates particular complexity. The different assemblies have varying powers, while much of England has no regional layer at all. Addressing these challenges needs careful and imaginative thinking. But crucially, a reformed second chamber can only reflect the new territorial settlement for Britain; it cannot drive it. The primary question concerns the future pattern of devolution and devolved powers, including any new arrangements for England. Only once those more fundamental questions have been hammered out might a reformed Lords help to “seal the deal.”

There are various long-term options, therefore, but such change will necessarily take time. Even on an optimistic projection, Labour’s constitutional convention wouldn’t report until a year after the general election, and legislation implementing its recommendations would take at least a further year. Of course, the party may not win. Even if it does, the constitutional convention may not agree, and if the convention agrees the politicians may not accept its recommendations.

A two-year timetable for large-scale reform is thus highly optimistic, but action on the Lords cannot wait. The most pressing problem is the chamber’s size, which is damaging both its reputation and its ability to function effectively. The Lords has thrived as a courteous and rational debating chamber—new members assimilate into a culture that frowns on political point scoring—where ministers must respond to reasoned argument. Polls show that the public, while not well-informed about the Lords, see it as less partisan and more expert than the Commons, and value it for this reason. But more recently, its growing size has created an increasingly fractious atmosphere, with members complaining about short speaking limits, overcrowding at question times and pressure on committees. This threatens what the chamber does best, which is thoughtful, largely non-partisan scrutiny of government legislation and wider policy. Media coverage of the Lords after 1999 often highlighted this work, and the reversals in government policy that it helped to bring about. Recent coverage has more often lampooned the chamber’s size, criticised the Prime Minister’s “cronyism” and raised the awkward question of how much this growing inefficiency costs.

Some may hope that making the Lords look ridiculous will hasten the arrival of a democratically-elected second chamber, but there is no guarantee that would happen. The Lords has been dysfunctional before, and other countries have second chambers that lack respect, sully the reputation of politics but remain stubbornly unreformed. Since 1999, the Lords has enhanced scrutiny and government accountability at Westminster, and we should keep it that way. Historically, Lords reform has proceeded by incremental steps, dealing with the most overdue and urgent problems in turn. Until longer-term reform is agreed, what are those most urgent priorities?


1. Regulating prime ministerial appointments

Leaving aside the question of election versus appointment, the most glaring problem with the Lords is unregulated prime ministerial appointments. It is these that drive numbers inexorably upwards. While it might have been defensible—just—for the prime minister to control honorific peerages in the past, being a peer is now a serious job. Yet the prime minister can appoint as many peers as he wants, whenever he wants and with whatever party balance he wants—effectively giving the head of government total discretion over the partisan composition of one chamber of parliament. Happily, ending this absurd situation requires no legislation, but the decision of just one person. Since the prime minister has complete discretion over the system, he can change it whenever he desires. In 2000 Blair established the House of Lords Appointments Commission, giving it the power to choose crossbenchers and to vet the propriety of party peers. All it took was a letter from him to the new body’s chair, specifying its remit.

Cameron could likewise give new power to the Commission to regulate party appointments, using a transparent formula to invite nominations from party leaders as and when “vacancies” occur. The fairest and most obvious formula for sharing out appointments would be to base each new batch on the balance of general election votes (rather than seeking to balance the chamber as a whole). So if 10 new peers are appointed, those 10 are shared proportionately between the parties.

This reform has particular urgency given the looming election. There is absolutely no room for more tit-for-tat appointments, yet under the present system more can be expected in May 2015 (partly due to the outdated notions of “resignation” or “dissolution” honours). It would be simply irresponsible for either of the two main party leaders to keep this up. Cameron and Miliband should be pressed to bring all peerages under a new regulated system, with immediate effect.

2. A size cap

Alongside this must be a cap on the size of the chamber. A parliamentary chamber with no maximum size is highly unusual, and experience shows that it doesn’t work. Indeed this reform could be seen as nearly 300 years overdue—the first attempt to limit the size of the Lords came with the Peerage Bill of 1719, following controversial appointments by King George I. One obvious change would be to require the Lords to be no bigger than the Commons. The House of Lords Appointments Commission could police this, with a short-term priority to manage numbers in the chamber down until the cap is reached. Managing retirements would help, but even without this the Commission could start its work. The main exit route from the Lords continues to be deaths, of which there are roughly 20 each year. If the Commission invited nominations on a principle of one new peer for every two departures, numbers would gradually fall. Once the cap was reached a one-in-one-out rule could operate.

3. A managed system of retirements

In 2014 a little-noticed Lords reform did take place, via a private member’s bill tabled by former Liberal leader David Steel, to allow voluntary retirements from the chamber. A life peerage would, as the bill’s proponents put it, no longer be a life sentence. But only five peers have so far chosen to retire, though around 50 are on temporary “leave of absence” (mostly due to ill health) and 165 are aged over 80. A key reason for poor take-up is the lack of a rational appointments system. If a peer leaves he or she knows that their party group in the chamber will be weakened and there is no guarantee that they will be replaced. Retirement alone will thus never be enough to get numbers in the Lords down. Anyway, the prime minister could simply push the numbers up again. But regulating the appointments system would facilitate cross-party agreement on large numbers of retirements. Options include seeking volunteers to reduce each group in the chamber by a fixed proportion, or introducing an unofficial retirement age of 80 (or even 85). Again, this could be managed without legislation. If peers want the prime minister to regulate future appointments, they might offer to engineer retirements to get the size of the chamber down as a quid pro quo. This could allow the size cap to be reached very quickly.

4. Ending hereditary by-elections

The items above are the key priorities, as well as the easiest to achieve. The next would require legislation. The 1999 Act included the absurd provision that 92 hereditary peers could not only stay, but would be replaced when they die by elections in which both the candidates and voters are other hereditary peers. This was part of the cross-party deal and was never expected to last. But in the absence of “second stage” reform, numerous hereditary by-elections have occurred. While some favour evicting the 92, a gentler solution would be simply to allow them to die off and not be replaced. Either would require amendment to the 1999 Act.

5. Expulsion for bad behaviour

Another minor legislative change would allow miscreants to be expelled. When peers are found guilty of expenses violations, for example, little can be done as members serve for life. The possibility of changing this is currently being pursued by the chamber’s former speaker in a private member’s bill, but its prospects remain uncertain.

Given the treacherous nature of Lords reform, small changes tend to fare best or, to put it more bluntly, have any chance of making progress at all. And while long-term reform is definitely on the agenda, perhaps more so than for many years, it would be foolish to overlook opportunities for more achievable short-term gains.