On Friday 28 February Dan Byles’ Private Member’s Bill on Lords reform completed its Commons passage. It is now in the Lords, and will be sponsored by David Steel. The bill, which allows retirement from the Lords and expulsion of non-attendees and serious criminals, has been presented as a small, uncontroversial “housekeeping” measure. But as already argued in an earlier blog post, as currently drafted it would in fact introduce a very major change that would alter the Lords fundamentally, and in very undesirable ways.

I will not repeat the basic arguments in my earlier post, which is still available to read (see here). But it urged an amendment at Commons report stage, to ensure that those allowed to depart the Lords (through retirement or expulsion for non-attendance) cannot immediately run for the House of Commons. Such calls were made throughout the bill’s Commons passage, but have been resisted by ministers. This is both puzzling and very worrying. It is puzzling because a ‘cooling off’ period before those departing the Lords could run for the Commons has been included in numerous earlier proposals, from the Wakeham Royal Commission to the Clegg bill (both of which are quoted in my previous post). It is worrying for reasons that I will now spell out, somewhat more forcefully than before. In the rest of this post I summarise the problem, reflect on what the Lords should do, and end on responses to some points that have been made against the change that I propose – all of them unconvincing.

The bill as drafted (clause 4(5)(b)) explicitly allows departing Lords members to run for the Commons. The problem that this creates applies not to existing peers, who presumably gave up any Commons ambitions when accepting their life peerage. It relates instead to new members appointed after the bill has passed. One of the weaknesses of the debates to date (on which more below) is that they have focused too narrowly on the likely short-term effects, in terms of how many current peers may depart – and insufficiently on the long-term effects, in terms of future appointments. But while there may be small, short-term gains through allowing a few peers to retire, the effects of the bill in the longer term would be far larger, and potentially extremely damaging to the Lords.

To illustrate, let us consider three possible candidates for the Lords once the bill has passed:

• Candidate A has served two terms as an MP, and is appointed to the Lords in 2015 after narrowly losing his seat. He badly wants to regain his constituency, and spends much of the next five years working there, maintaining a constituency office and regularly campaigning door-to-door.

• Candidate B has fought several Commons seats unsuccessfully in the past, and after missing out again in 2015 is rewarded with a seat in the Lords. But she still yearns after a Commons career, so seeks reselection as soon as possible, and uses the Lords to try and raise her local profile above that of the incumbent local MP.

• Candidate C is appointed to the Lords in 2015 after many years working as an adviser to his party leader. From there he starts looking for a Commons constituency, and uses Lords speeches primarily to broadcast his suitability as a future MP, and maybe even a future leader.

Candidates A, B and C are not so very different to many who have been appointed to the Lords in the past – indeed, around 60% of current party peers are either former parliamentary candidates or MPs. The key difference is that such people currently have to weigh up carefully whether they still want a Commons career. Those in doubt will turn down any offer of a peerage; those accepting one will set other ambitions aside. I do not see candidates A, B and C as bad people who are doing anything underhand or inappropriate; it is understandable that they should see the Lords as a useful temporary resting place. Nor would their party leaders be acting improperly; indeed, it is easy to see how and why leaders would embrace these new patronage powers. The point is that the bill as it stands fundamentally changes the calculus both for those offered seats in the Lords, and for those doing the appointing. Unless the route from Lords to Commons is explicitly ruled out, people will understandably conclude that it is fine to use it. If the bill passes in its current form, please have no doubt: these changes are certain to occur.

It should hopefully already be clear what effect this would have on the Lords. Many members would become far more preoccupied with constituency business and campaigning than with parliamentary scrutiny work; many would watch far more carefully what they said, in order to appeal to the media, local voters and their party leaders; in seeking to make Lords debates more eye-catching, they would make those debates more politicised. In addition, many members would become short-term occupants of the Lords, staying only a few years before another career could be developed – with a consequent loss of long-term thinking. Should this be considered fanciful, look (as set out at greater length in my previous post) at Ireland, and more recently Canada. In Ireland chamber-hopping is absolutely the norm, and Senators (despite not being directly elected) spend much of their time on local campaigning work. Only last month I acted as an adviser to the Irish Constitutional Convention, where this problem with their parliament was much lamented.

The Byles bill has been presented as a small “tidying up” measure, but these changes would be fundamental, and major. For hundreds of years (with a couple of exceptions, discussed below) members have been able to move from Commons to Lords but not the other way around. The bill would thus change centuries of British tradition, and the consequences need very careful thinking through. It could be argued to the bill effectively ends life peerages in all but name: allowing members to depart the chamber when they wish, at any age and after any period of service. But members can de facto already do this if they really wish, simply by ceasing to turn up. The one thing that they cannot do is run for the Commons. Perhaps some see advantages in changing these historic arrangements; but if so they should make a positive case for change, out in the open, and subject to proper scrutiny. This has absolutely not happened so far.

During the passage of the Byles bill through the Commons, concerns about these matters were raised repeatedly, particularly by Conservative backbencher Jacob Rees-Mogg. In response, at second reading last October Dan Byles said that, “That is the sort of detail that I would be more than happy to discuss… and we could consider whether some small amendment might be made in Committee” (col. 1005). When a ‘cooling off’ period was specifically suggested, so that departing peers had to wait several years before running for the Commons (as was provided in clause 41 of the Clegg bill), Byles said that “I would be interested to look into whether a time bar solution could be achieved” (col. 1055). Hence it was reasonable to assume that the problem would be resolved by government-backed amendments at committee stage – but it was not. At report stage last week the concerns were repeated. Rees-Mogg proposed amendments (particularly amendment 21) to deal with them, arguing that it was “fundamentally undesirable” (col. 558) for the Lords to become a base for aspirant MPs. Dan Byles responded that “we all agree that we would not want the House of Lords to become a training ground for a seat in the House of Commons” (col. 560). Stephen Twigg, speaking for the opposition frontbench, described this as “a serious issue” and “a risk” (col. 561). The minister likewise said that “We do not want to see the House of Lords become a nursery for the Commons where young hopefuls start their careers” and claimed to “fully understand” the concerns expressed (col. 562). Nonetheless no amendment was made. Despite pressures both behind-the-scenes and in the chamber, ministers had resisted changes to resolve the problem.

These developments demonstrate in part the weakness of the private members’ bill process. The bill had its second reading and report stage on ill-attended Fridays, with little media attention. Its sole committee session lasted a mere 38 minutes. There was no pre-legislative scrutiny, no call for evidence, no opportunity for witnesses to appear, and consequently no outside group engagement. The limited time available also led to great resistance to amendments. This was worse for the Byles bill for most PMBs, due to fears that any Commons amendments would make its Lords passage more difficult. Those in the Commons were warned to stick rigidly to the contents of David Steel’s previous bill on the topic, which had passed the Lords in 2012-13. Steel’s bill had also failed to include a ‘cooling off’ period, but it was a similarly fragile creature, with fears at the time that any amendments would derail it. Yet everyone knew that its prime purpose was as a spur to government action; and once government gets involved, Private Members’ Bills inevitably get tidied up. Now, however, the original Steel bill is being treated as a kind of revered text, which cannot be altered. The deafness to argument which is occurring over this bill is a classic recipe for bad policy-making, and even for policy disaster. On such an important matter it is essential for reasoned amendments to be properly debated and considered.

So the Lords is now left in a dreadful position. Typically when a bill leaves the Commons with outstanding problems, the Lords provides the forum for them to be carefully discussed and sorted out. It would be a terrible irony if this norm was broken with respect to a policy that concerns – and indeed threatens – the House of Lords itself. But the government claims that any Lords amendments will kill the bill, due to lack of time for these to be considered in the Commons. I am reliably advised by Commons clerks that this is not actually true – while there are no Private Member’s Bill Fridays left, several tricks could be used to get necessary Lords amendments through the Commons by May if the government wants the bill. The Lords therefore should carefully consider possible amendments to deal with the problem.

Options include:

• Inserting clause 41 of Nick Clegg’s bill of 2012, which would require a ‘cooling off’ period of 4 years (which could be amended to a longer period). This seems the preferable and least contentious solution.

• Simply removing subclause 4(5)(b), which provides that those departing the Lords are not disqualified from “being, or being elected as, a member of that House [i.e. the House of Commons]“. This would retain the current absolute bar on future candidacies – which probably goes too far, and could create legal uncertainty.

• Restricting retirement provisions to current peers, not new entrants. Also problematic, as pressures for retirement would recur and require further legislation. Would also need to apply to provisions for expulsion by non-attendance, otherwise this creates a loophole.

• Restricting these same provisions to those aged over 65 (as was suggested by Jacob Rees-Mogg’s unsuccessful amendment 3 at Commons report stage for the first of the provisions). This too would be a reasonable long-term solution.

Any of these amendments would resolve a weakness highlighted by MPs and therefore be unlikely to face Commons opposition. If the Lords does amend the bill, and the government does not deploy the tactics available to get it through the Commons, it is ministers not peers who would be culpable for killing the bill. If the bill is not amended in one of these ways, my reluctant advice to peers would be to resist it.

It pains me greatly to have to suggest this latter outcome, even as a possibility. I have long argued for the next small steps on Lords reform, both publicly (e.g. here and here) and behind-the-scenes. Allowing retirement would clearly be a beneficial next step. But a conspiracy of silence to get a flawed version of retirement onto the statute book is clearly a bad idea, and the threats in the bill as it stands are far too great. I began research in this area 16 years ago precisely in order to offer objective, evidence-based advice on Lords reform. That evidence tells me that any gain from the bill as is will be relatively small, while its long-term consequences will be huge and negative. Opening up a direct route from Lords to Commons, which has been closed for centuries, would be a major constitutional and political change. If this bill is truly about “housekeeping”, then using one of the amendments above to maintain something similar to the status quo is essential.

Postscript
Finally (in a post which is already far too long) the really committed may want to hear some of the arguments which have been made against the ‘cooling off’ period, and why I believe that they are wrong:

Argument 1: Peers have been able to leave the Lords and run for the Commons before, under the 1963 and 1999 Acts.

Response: these changes occurred in very different circumstances, and only ever extended to those who had inherited their seats in the Lords (i.e. entered by accident of birth) not those who had themselves been appointed. Hereditary peers of “first creation” were not covered by the 1963 Act, while the 1999 Act was a one-off exodus. Neither implied any change to the type of people appointed.

Argument 2: The ‘cooling off’ period proposed in other packages has been in the context of election to the second chamber, not appointment.

Response: This is simply untrue. The Wakeham Royal Commission (as quoted in my previous post) was particularly strong on this point, despite proposing a largely appointed house.

Argument 3: Once in the pleasant environment of the Lords, few people will feel motivated to depart for the Commons.

Response: I believe that this argument is naive, and too influenced by feelings among some current peers. It is important to remember that those now in the Lords have – by definition – renounced the option of a future Commons career. But the bill allows people who feel very differently to be appointed, and their party leaders will be tempted to do so. It is undeniable that a Commons career remains a desirable to many people active in politics, for example promising a salary, access to senior ministers, and a chance at a cabinet career. Indeed a majority of current party peers have run (successfully or unsuccessfully) for the Commons in the past.

Argument 4: Introducing a cooling off period would deny democratic rights to people to run for the Commons.

Response: In fact, a bill with a cooling off period (of say 4, 5 or 10 years) would significantly increase freedoms beyond what they are now. Life peers have been barred since 1958 from running for the Commons (and likewise, aside from exception 1 above, this has always applied to hereditary peers). Few have complained about this restriction.

Argument 5: There is no time in the Lords to consider amendments, given that the second reading is occurring so late (28 March).

Response: It is very unfortunate that the sponsors of the bill chose a late second reading date, seemingly to procedurally block the opportunity for amendments. The Companion to Standing Orders does set down minimum time periods between stages (e.g. 14 days between second reading and committee stage), but these are only ‘recommended’, and it is not unusual for them to be breached by agreement of the usual channels. If an amendment is put down, a committee stage will be required to debate it, and one can be provided.

Argument 6: It would be better to get this bill through, and if a problem occurs to then legislate to correct it afterwards.

Response: This is a very dangerous suggestion. Once the legislation is on the statute book there is absolutely no guarantee that it can be changed. A “corrective” PMB in the next session could easily die, or indeed be blocked by ministers. Then once the route from Lords to Commons has been opened post-2015, it would probably prove impossible close it again: such legislation would appear critical of particular individuals who have taken this route, or of their party leaders; party leaders will anyway by then have adjusted to the enhanced patronage that the bill provides. Far better not to take the risk – even if this means waiting for a better safeguarded retirement provision in a future bill

Dr Meg Russell is Deputy Director of the Constitution Unit, and Reader in British and Comparative Politics at UCL. She is author of The Contemporary House of Lords: Westminster Bicameralism Revived (Oxford University Press, 2013) and Reforming the House of Lords: Lessons from Overseas (Oxford University Press, 2000), and has acted as adviser to the Royal Commission on Reform of the House of Lords, the House of Lords Appointments Commission, the Leader of the House of Commons, and various parliamentary committees.

REPOSTED WITH THE KIND PERMISSION OF THE CONSTITUTION UNIT BLOG.

Suggested citation: M. Russell, ‘The Byles/Steel bill – unless amended – holds grave dangers for the Lords’  Constitution Unit Blog (5th March 2014)  (available at http://constitution-unit.com)  OR  M. Russell,  ‘The  Byles/Steel bill- unless amended – holds grave dangers for the Lords’ U.K. Const. L. Blog (5th March 2014) (available  at https://ukconstitutionallaw.org/).