Once again the Constitution seems vulnerable to piecemeal reform arising out of sectional party interest

The Tax Credits Act 2002 specifically provided that SIs of this type must be approved by both Lords and Commons.

As a rule, powers delegated to Ministers to make ‘financial’ SIs provide that affirmative instruments shall be approved by the Commons only.

The solution to the ‘constitutional crisis’ lies in better scrutiny of proposed delegated powers in parent Bills.

A useful reminder of what the “conventions” actually are. It would be a
travesty to use such “non-breaches” to justify jettisoning of the current
role of the Lords (either by creating an artificial Govt majority or by
making it an elected House or moving to a unicameral system).

Meg Russell (in a piece for DA Scotland) has identified the major
problems and some of the “solutions” likely to be proposed. There
cannot, however, be an adequate solution without a “cull” of the
Life Peers – and my paper suggests how this might occur in a
manner that is fair to both the public and the politicians. I commend
its ideas to those concerned with this situation – but accept that it
would need honing into shape for practical implementation.
==
House of Lords Reform – an Alternative solution.
(comment by Alan Rayner – October 2015)

Many commentators have identified the principal symptoms of the
problems with the House of Lords – the ongoing surge in the numbers
of its membership being the most prominent, and urgent. However
NEITHER the Electoral Reform Society nor most other commentators
have identified the correct solution. All seem to be ignoring the real
roles of the second chamber.

There is a fundamental error promulgated in the false assertion that
the Lords “make laws”. Peers do NOT make laws. They are there to
scrutinise proposed laws and to make suggestions. Since 1949 the
power to make laws has been properly held by the elected Commons
– with the Lords able only to delay legislation on the “Think Again”
principle.

Whilst it is true that those who make our laws need to have democratic
legitimacy, this tenet is not applicable to the House of Lords. The false
belief that the Lords make laws must be challenged before the UK
constitutional settlement is irreparably damaged.

Four things need to be borne in mind:
a) The primary role is scrutiny – with a “think again!” power that can
delay but not veto.
b) The government needs a significant representation in the Lords
but not a majority.
c) The number of “active” peers needs to be reduced.
d) Regional interests need to be represented in addition to the
current membership.

Fulfilment of the first two roles would be endangered with a
substantially elected House and achieving (c) and (d) could never
justify abandoning (a) and (b).

Achievement of ALL these factors can be only with an APPOINTED
House – that has a clear system for periodic culling and renewal.
Below are set out the principles that could be used to secure a House
with a membership fit for purpose – and one that respects the
traditional approach of evolution rather than revolution in the reform of
the UK’s bi-cameral legislative arrangements.

===
Expanding the membership of the House of Lords (to achieve party
political “balance” is not the way to make it fair. However, neither is
undermining its role by making it an elected chamber! There is not an
overriding need to elect the Lords. In fact, doing so would endanger
the essential function that it undertakes currently. The majority of the
House needs to be APPOINTED for its expertise/experience (only
some of which is political service!).

The size does need to be limited. This means instituting a mechanism
for a periodic cull – and churn of membership – on say a five-yearly
cycle. A useful precedent already exists arising from the 1999 cull of
hereditary peers. We need an equivalent for LIFE Peers.

Applying “objective” criteria such as fixed-term appointments or
compulsory retirement ages would introduce unfairness. What is
needed is for the Peers to recognise between themselves who should
remain as an “active” peer and continue to make a positive
contribution to the work of the House.

The first stage is to categorise Peers.
Suggested groupings are Hereditary Peers, Bishops, Cross-bench
Peers, Party groups and a new category of “Regional” Peers.

The second stage is to place a “quota” for each category.
For the above, these could be:
a) Hereditary Peers – 92 (as now)
b) Bishops – 26 (as now – their role is not addressed here)
c) Cross-bench Peers – 150 (plus up to 10 extra per annum)
d) Government Party Peers – 150
e) Other Party groupings – 150
f) Regional Peers – 73 (same number as MEPs)

The sample figures give a House of 641 – less than now but large
enough to give a strong diversity of representation. Numbers could
be reviewed at a future date – but with a stipulation that numbers for
each of categories c),d),e) be kept equal to the other two. Those
numbers are for “active” Peers – entitled to participate in the business
of the House. Other Peers would be entitled to the title “Lord” and
similar rights to those held by the hereditary peers not currently
among the ninety-two elected “active” Peers.

Representation for the non-government parties would be divided
between those parties by application of the d’Hondt rule to their total
vote at the last General Election. Only those parties registered under
the PPERA 2000 Act would be included. Representation in the House
of Commons would NOT be required for inclusion.

The leadership of the relevant party would have the right to
recommend appointment of up to 50% of their quota in any five-year
period. Places not filled by direct appointment would be filled by
election (using STV) held among those already part of the party group
(whether in an “active” or dormant role). This follows the precedent of
the hereditary peers in terms of electorate and electoral methodology.

As examples from 2015, UKIP would have approximately 30 members
– based on its vote share of 12.6% related to the overall 63.3% non-government vote (ie 19.9% of 150). The Conservatives would
have 150 members – by virtue of being the government party.
(A coalition would have shared the 150 places using d’Hondt for
how many each places each was allocated).

These rules mean that each new government could appoint
seventy-five “active” Peers of its choosing (who may be new, already
“active” or dormant) leaving existing peers in the government-supporting group to choose the other seventy-five.

Parties losing substantial support would have a cull. The example from
2015 would cut the Liberal Democrat numbers from 101 to a quota of
about eighteen – of whom nine would be recommended by Tim Farron
and nine would be elected by the 101 existing LD Peers from among
their number. This would solve the over-representation of the LDs but
the existing peers would retain their status as “Life Peers” (although
they would be “non-active” apart from voting in elections to choose
who should represent them in the House) unless they choose
individually to retire.

The principal Opposition party would have no specific reserved
number but would be entitled to appoint a “Leader of the Opposition”
in the Lords. The Cross-Bench Peers would elect all their “active”
Peers (150) at the start of each five-year term but would also be
able (via the Appointments Commission?) to add up to ten members
each year in order to introduce relevant expertise.

The “regional” Peers would be elected by the public, using STV in
each European constituency (eg six from South West, four from
Wales, three from North East, etc) and would be quite independent
of the party groupings for membership purposes. These regional
representatives could be elected directly (by STV) at the same time
as the European Parliament elections and would retire at the next EP elections. Any vacancies could be filled by a recount of the actual
voting papers – applying transfers at the first count of any votes for
non-available original candidates.

==
Of course, this scenario would need legislation to implement it. The
genesis of the 1999 solution re Hereditary Peers is highly unlikely to
be repeated – and so much work will be needed on building a
consensus to avoid the tragedy of an elected chamber.

Sadly the enormity of such tragedy would be subject to the principle
of “You do not know the value of what you have got until you lose it”.
There are signs that many more people are reluctant to follow the
mass call for an elected Lords. We must encourage such broader
thinking before the fatal steps to abolish the current format are taken.

However we MUST avoid ridiculous inflation of Peerage numbers.
A statutory cull is a viable way forward – but needs political will and an
approach that all parties can recognise as being fair to both the
country and the political classes.

E&OE – Alan Rayner, October 2015.