Public Administration and Constitutional Affairs Committee 

Oral evidence: Membership of the House of Lords, HC 200

Tuesday 9 January 2024

Ordered by the House of Commons to be published on 9 January 2024.

Watch the meeting 

Members present: Mr William Wragg MP (Chair), Ronnie Cowan; Jo Gideon; Mr David Jones; John McDonnell; Damien Moore; Tom Randall; Lloyd Russell-Moyle; John Stevenson.

Questions 45 - 115

Witnesses

I: Rt Hon Baroness Hayman GBE, Former Lord Speaker 2006-2011, and Rt Hon Baroness D’Souza CMG, Former Lord Speaker 2011-2016.

II: Lord Burns GCB, Chair of the Lord Speaker’s Committee on the Size of the House, and Tom Wilson, Clerk to the Lord Speaker’s Committee on the Size of the House.

Examination of witnesses

Witnesses: Rt Hon Baroness Hayman and Rt Hon Baroness D’Souza.

Q45            Chair: Good morning and welcome to the Public Administration and Constitutional Affairs Committee. Today the Committee is holding its second oral evidence session into our inquiry into membership of the House of Lords. This inquiry will examine the arrangements for the appointments to that House, its size and composition, and the effectiveness of its role in relation to the House of Commons.

Our witnesses this morning are spread across two panels and our first panel this morning is made up of former Speakers of the House of Lords. I say good morning to them both. If they might introduce themselves for the record, starting with Baroness D’Souza, please?

Baroness D'Souza: I was Lord Speaker from 2011 to 2016 and before that Convener of the Cross Benches.

Baroness Hayman: I was Frances’s predecessor and the first elected Lord Speaker.

Q46            Chair: Thank you both indeed. I have an opening question from me, a very open question indeed. What in your view are the key functions that the House of Lords carries out?

Baroness Hayman: The key functions are parallel to the functions of the House of Commons in that they are the scrutiny of legislation and policy and the holding to account of the Executive for policy. We undertake scrutiny in a different and complementary way, legislation in particular, from the Commons.

Baroness D'Souza: I have not much to add to that, other than, clearly, we amend legislation. In so doing, the House of Lords has developed a role in defending civil liberties and is particularly keen on looking at legislation that it feels may infringe some of those, including international treaties.

Baroness Hayman: Maybe because I was once a Member of the House of Commons, I would say that we propose amendments to legislation. The final decisions are with the Commons.

Baroness D'Souza: As indeed they should be.

Q47            Chair: To both of you as well, what does the Lords do well and where is it less effective?

Baroness Hayman: We do line-by-line scrutiny of legislation well. We do it, I hesitate to say, better than the House of Commons. All the time, if you want the most effective Parliament, you do not want duplication; you want complementarity. The “big issues” on legislation will come to the Commons. The line-by-line details will come to the Lords.

My view is that that balance has shifted a little too much and it worries me how much legislation comes to the Lords that has not been scrutinised in any way in the Commons. We had an egregious example of that on the proposals in the levelling up Bill recently. There are worries—we are coming to this later—about the Government bringing large amounts of amendments at late stages to Bills and the Commons not having a proper opportunity to do it.

We are less effective sometimes in holding Ministers to account simply because the power dynamic is different.

Baroness D'Souza: Another role that the House of Lords undertakes is these crosscutting committees rather than departmental committees. It is quite good at that because it recruits expertise from a wide range.

If we go back to what, perhaps, the House of Lords does not do quite as well, there is an unbuilt hesitancy to sorting any legislation. Quite understandably, we all deeply understand the fact that the House of Commons is the majoritarian House, but on occasions, it seems that the House of Lords could push the ping pong once, twice, perhaps even three times to insist. Once or twice, in fact, during Helene’s term as Lord Speaker, we pushed an insistence on the detention before charge issue some years ago.

We probably ought to think more about moving away from being a talking shop to being effective legislators. That goes on to then the composition of the House of Lords.

Q48            Chair: In your experiences, what are the main challenges for the House of Lords in carrying out those functions?

Baroness Hayman: The strong challenge over legitimacy and trust and the processes by which the House is currently constituted is a real issue for us. I am so sorry.

Chair: Do not worry at all. It happens.

Baroness Hayman: I was certain that I had turned that off. It has completely destroyed—

Chair: These are the occasional challenges to Committee meetings. It is usually one of us. Do not worry. You were saying that the appointments are a challenge.

Baroness Hayman: The appointment process has lost the House some credibility in its performance. The House does the job that it has been given to do effectively, but we have a problem of a sense of unaccountability that is difficult. That perhaps leads to some of Frances’s concerns about not being robust enough because the House has a function as, if not a protector of the Constitution—although we have one important statutory duty in that respect—but as the canary in the mine on constitutional propriety. To be able to flag that up, we need to be respected, legitimate and defensible in who is there doing that job.

Baroness D'Souza: Yes, I certainly agree with all that, but the appointments process as it stands at the moment reveals confusion about what the House of Lords is there for. Is it a House of honours or is it a legislative body? At the moment, it tries, uneasily, to be both.

If there were an appointments process that went along the lines of Philip Norton's Bill, which is to go for conspicuous merit and willingness to work and propriety, there would be a greater confidence in the House to make decisions about legislation robustly, perhaps, and also for the public—insofar as the public has any interest at all in this—to believe that it is doing a job. At the moment, those who are appointed treating the House as merely an honour discredits the House.

Q49            Chair: On that theme, what qualities do Members of the House of Lords need to have to carry out the functions of the House of Lords effectively? I wonder if you would both mind reflecting on whether the current membership is well suited to that purpose and, indeed, what changes to that membership would make it more effective.

Baroness D'Souza: One views the House of Lords as a house of experts. It has a wide range of expertise and, let us say, conspicuous merit.

It is important that a body—in this case, HOLAC—can perceive the gaps in expertise and be able to appoint according to those gaps and, indeed, able to have regular conferences or meetings with Members of the House of Lords to see what they think about the gaps.

We face in the future a number of areas with which perhaps our current Members are unfamiliar. I am talking about AI, cyberthreats and a lot of new areas that will need a different kind of expertise. HOLAC’s job is to recruit that.

At the moment, because of the size of the House, even though only about 70% at the most regularly attend, quite a competition for space to speak means not quite the focused attention in the questioning of Ministers and certainly a lack of focused replies and responses as well. That is a weakness. If we were a smaller number, we would be able to co-ordinate and co-operate better and perhaps be better legislators.

Also, it would behove us to have greater liaison with MPs, which at the moment is sadly lacking, because in certain areas MPs have a concern but, because of the constitution of the House of Commons, those concerns do not necessarily get full attention. It would be useful to be able to have that liaison so that we could reiterate some of the House of Commons' concerns and make common cause with it from time to time.

Q50            Chair: If I might follow up, you mentioned the, perhaps, looseness of questioning and, indeed, the replies from Ministers. Is that more a matter for the procedures of the House of Lords itself rather than its membership?

Baroness D'Souza: If there were more cross-party liaison between Members on questioning, Members could play their part in that. Yes, it is of course partly a procedures matter, but at the moment it is such a large number and we are all so disparate. There could be better co-ordination and a tighter form of questioning.

Baroness Hayman: You asked whether the membership is suitable. As a whole, the House covers most of the ground and covers most of the ground well. There are some individual members who are not suited to being Members of the House of Lords, who were appointed as an honour, not to be working parliamentarians. That is, in a way, not their fault, but it is the appointment process. To be a good Member of the House of Lords, you have to understand the responsibilities of being a parliamentarian and part of the legislative process and have a commitment to undertaking that role with seriousness.

It is important that, yes, the House can bring people who have expertise. I would not like to see it just as a House of experts. All of us corporately try to be representative. We are not representative in the House of Lords by anointment by the popular vote but, in some way, we need to cover the ground. The people who undertake this role have to commit and have a sense of responsibility as being part of Parliament.

It is important that we have expertise, but it is also important that we have geographical diversity, that we understand that Parliament is for the nation as a whole and that the nuclear physicists recognise that they are not here to come in once a year to talk about nuclear physics. They have a vote. They have a responsibility. They have to be prepared to take on that wider brief.

Q51            Mr Jones: Good morning. Lady D’Souza, you said you would like to see more liaison between Peers and MPs. How would you describe the current relationship between the House of Lords and the House of Commons?

Baroness D'Souza: Personally, whenever I come across it, it is extremely friendly and fruitful, but I hear from MPs who are appointed to the House that they were deeply unaware of the procedures of the House or the tenor of the debates that occur. There is quite an ignorance of the procedures each House has of the other House. There are no regular ways in which there can be liaison other than sitting on Joint Committees, of which there are not many.

I certainly have got to know MPs and have continued, as it were, to liaise through delegations, CPA, IPU or whatever they might be, but there is no forum for meeting with MPs. It would be quite useful.

Baroness Hayman: Individually, the relationships are good. We meet particularly in APPGs and those sorts of fora and on issues. I chair Peers for the Planet. I know a lot of the people in the House of Commons who are active on environmental issues because, sometimes, it is important. As I said before, we do not amend legislation. We can make an amendment on a Bill while it is going through. That will mean nothing unless the House of Commons decides to support it. Therefore, there has to be that sort of liaison on individual issues, on individual legislation and on individual campaigns and policy issues. That happens.

Corporately, the relationship is scratchier and more febrile because, when the Lords changes a Bill that has been through the Commons, there is a sense of rejection of a decision of the Commons, which is the senior House. Having done that myself, having led a rebellion in the Lords, it often feels more like Parliament against the Executive than it does straight House of Commons against House of Lords. That has a lot of nuances and a lot of negotiation goes into those sorts of situations.

Baroness D'Souza: Recently, a lot of legislation that has been, as it were, non-party political has been amended by the Lords with maybe six amendments on a particular Bill or clauses of a Bill. It goes back to the Commons and is dismissed within about 10 minutes and is not debated. To add to what Helene said, there is a sense that the amendments we put down are not necessarily being taken seriously.

Q52            Mr Jones: You mentioned the scratchiness of the relationship. Could that be avoided by closer liaison—to use your word, Lady D’Souza—at an earlier stage in the legislative process?

Baroness D'Souza: Yes. I am not sure how or what form that could take but, if particular Bills came up for which there was concern in the House of Commons and, equally, concern in the House of Lords, an informal group could liaise.

Perhaps we all forget that our job is also to make it much easier for Ministers to accept our amendments. At times we are confrontational and that is not necessarily the best way to go forward. Ways of phrasing amendments that made it easier for Ministers in either House to accept them could be quite profitable in the long term.

Baroness Hayman: Frances is absolutely right. The scratchiness comes on the few issues that are elevated into ping-pong and serious disputes between the Houses. The day job is hundreds—nay, thousands—of amendments that are made and that the Government do not try to overturn. They either accept them in the Lords or bring their own variant into the Commons. This goes along smoothly as part of an effective process. Many pressure groups, for business, for trade unions, will focus, when they want a detailed amendment or change in legislation, on the Lords rather than the Commons because the whipping system does not work in the Lords as it works in the Commons. The numbers are different and the strength of the whipping system on a House where most people are past ambition is not as effective.

Baroness D'Souza: And they are Cross Benchers.

Q53            Mr Jones: You both agreed earlier that detailed scrutiny of legislation is a key function of the Lords. Why can the Lords do this so effectively? Can it do it more effectively than the Commons?

Baroness D'Souza: It takes as long as it takes in the Lords. Having said that, this line that I have often pursued in talking to schoolchildren and university students is that line by line we go through it. Of course we do not go through it line by line. Someone can choose on which areas to seek to lay amendments.

But there is much more time. We do not have a programme motion. There are times in quite technical Bills when one does call upon expertise. If we are talking about matters to do with engineering, it is quite useful to have an engineer in the Lords who can point out, again, an awful lot of points that are not party political.

That was also true when we came to discuss in times past issues that had a strong moral and ethical aspect, such as assisted dying for the terminally ill, regenerative medicine and 14-day-old embryo research. It was quite useful to have people who were involved in that research to give their views, as it is useful to have—and I bring this up—the religious element through the Bishops.

Baroness Hayman: Time. No selection of amendments. That is the key to it. Because of programming and guillotine motions, there is much less time here, and expert groups in civil society decide to brief in the Lords.

Q54            Mr Jones: The House of Commons derives its legitimacy and its authority from the fact that it is an elected House, quite clearly. What gives a House largely composed of political appointees its legitimacy and authority?

Baroness D'Souza: Basically, it does not have democratic legitimacy. I accept that. It is not an elected House.

However, I argue that part of our legitimacy arises from the expertise that operates in a particular way. Because individual Peers do not have the resources that, say, a senator in the US might have in terms of a body of researchers and so on, most serious Peers maintain daily contact with civil society groups that have a particular interest in a particular area.

For example, David Ramsbotham would be in contact with every single organisation to do with prison reform, women in prison, art in prison and youth in prison. He would consult them daily. He brought to the House current information from the ground and fed that into discussions on legislation.

A lot of that goes on because we are dependent on these single focus groups to provide us with information. That gives a sort of legitimacy because one expresses a view about people who work on the ground. It is perhaps quite a thin and stretched argument, but it does happen and it is valuable.

Baroness Hayman: We can claim legitimacy only by the quality of the work that we do. Both of us have spoken to a large number of public audiences about the work of the House of Lords. The criticism of the quality of the House’s work and what we do is absolutely minimal. In fact, people support what second chambers do: second thoughts, different perspectives. Frankly, people often appreciate the idea of a non-elected House in the sense that these are not career politicians. They like the idea of different people complementing a different viewpoint and they like the output, which is making the Government think again. For me, the legitimacy comes only if we do our job well. That means we must have the right people, the right procedures and the right balance of power and responsibility with the elected Chamber.

This is a dilemma that second chambers across the world struggle with. Bicameral parliaments in complicated advanced countries are usually considered to be useful. How you populate your second chamber is often a matter of political geography—when you have federal countries, it is easier to understand how it is done—or political history. We are definitely on the historical side. But the evolution of the role is justifiable. We have had a lot of royal commissions and everything else into that.

Baroness D'Souza: We could vastly increase our legitimacy or perception of it, first, if we were not called the House of Lords but were called senators, which is after all our function. If our appointments body was mindful of geographical distribution and ethnic distribution as well as professional expertise distribution—if, for example, we were to appoint mayors from different areas of the country for limited terms—it would at least give the feeling that the country as a whole is represented in the Lords.

Q55            John McDonnell: Briefly, if I can take you back to process, some of the discussions we have about the House of Lords make us focus on some of the procedures in the Commons as well. Often, both from the Opposition and the Government within the Commons now, the expression will be, “Do not worry. We will sort it out in the Lords.” That relates to our programming, as you mentioned. Has that increased in recent years, as some of us think?

Baroness Hayman: It has and the Government sometimes overstretch themselves and recently have done so. I used the example of the levelling-up Bill. But we have had Bills where whole sections have been taken out or put in and the possibility for proper scrutiny in the Commons has not been there. That is the Executive pushing it.

Baroness D'Souza: I agree, yes, entirely.

Q56            Tom Randall: You have both previously this morning identified the size of the House of Lords as one of the big issues that require reform. Why do you think the size of the House is such a big issue?

Baroness D'Souza: Partly because the media thinks it is an issue. It has fixed on it. That apart, the size of the House has enormous implications. It allows there to be less of a co-ordinated approach to legislation. It is a public scandal that we should have a House as large as it is. As I said at the beginning, it reveals that confusion that people are appointed to the House who do not perceive the parliamentarian role that Helene has talked about and who do not adhere to that parliamentarian role. Basically, they treat it as an honour. Maybe it gets them a table at a restaurant or something, but it is not a serious job. That, of course, is picked up by the media.

There has been a somewhat unfortunate coming together of people who have perhaps been generous to a particular party and who then find themselves in possession of a peerage. That gives rise to that ancient thing of cash for peerages, which, again, the media have picked up with some justification because recently people who have no perceived expertise and no perceived role and who do not take up any role have been appointed.

Are you allowed to name names here? What about Lebedev?

Tom Randall: Please do.

Baroness D'Souza: What role does Lebedev have in the House? He has been in twice. He is trying, perhaps, to seek to have some influence. But what is the point of the appointment of Lebedev to the House of Lords? It is an easy target for the media.

I have done a careful analysis of the numbers and the contribution and taking into account Lord Burns's report. Between 2019 and 2023, the average attendance was 372. Over a longer period, the most is 70%. If you take away 30% from the current membership, it leaves in the region of about 530, possibly going up to 550.

A long time ago, I did an analysis. Being a full-time House with part-time Members and having to fulfil all the Committee posts as well, we could easily manage on between 450 and 500. Let us also remember that if we were to reduce the number of Lords by 30%, you would save about £6 million per year, which is no mean figure and it is taxpayers’ money.

Q57            Tom Randall: Some of what you have outlined there are reputational issues. It is giving your House a bad name. But the examples you give are of people who do not turn up and who do not play an active role in the House.

If you were to cut them away, if they do not turn up anyway, would there be that much of a difference in your day-to-day work? You say it is too large but, if you are cutting off the dead wood, you are effectively back to where you are at the moment. Would that be looking at it wrongly?

Baroness Hayman: It is one way of looking at it. However, remember they can vote. I can remember what I consider the bad old days when the woodsmen who never turned up could be turned out for a crucial vote.

It is wrong in principle to have more people in the House than are necessary to do the House’s work. First, form should follow function. If we say what the function is, we should have a House of a size that can do that.

It is an absolutely open target as well for the reputation of the House. This phrase, “The biggest second chamber in the world apart from the Diet, blah, blah, blah”, is thrown at you all the time. It is considered a waste of public money because they do not understand that if you do not turn up you do not get paid. It is a real reputational problem.

Also, in principle, you should not have a bigger House than is necessary to carry out the functions.

Q58            Tom Randall: In your view, what size should it be?

Baroness Hayman: We can argue. Lord Burns is here. We can talk about it. The debate is about between 500 and 600. Frances did some analysis. I do believe in it being a full-time House but having many part-time Members, which takes me a bit to the higher side than the lower side because I do not want us to be a House of the retired. It is important that people with current experience bring that experience into the House.

Q59            Tom Randall: To explore that a bit further, should there be a minimal level of participation required of Members of the House of Lords to participate in proceedings and how would that work with full-time and/or part-time Members?

Baroness D'Souza: It would be so difficult to assess that. The Astronomer Royal comes in three or four times in a particular session but absolutely crucially. The party group leaders—that includes the Cross Benches—know well who contributes and who does not contribute. If we were to have any kind of a cull of the House, the party leaders could say, “The House would not collapse if they left.”

I know, too, that people continue even into quite old age on certain benches partly because they need the money. This is particularly true of those who have been extremely loyal to the party, maybe working in ill-paid party jobs over a period of decades. That is understandable, but it would not be beyond the wit of the different groups to sort out a scheme whereby they could have some sum, perhaps, to retire. The group leaders have to decide that. Participation is a bit of a movable feast with a part-time membership.

Baroness Hayman: We have taken baby steps. If people do not turn up for two sessions in a row, they have to leave. We have a platform for that.

Drawing the line, as Frances said, is difficult. If we have a big reduction, after that, we have to have a different culture. Culture is important. At the moment, people do not feel a responsibility to retire if they cannot participate, “I am not taking any money. What harm am I doing?” That would be different in a smaller House where everyone has to pull their weight.

Q60            Jo Gideon: The size of the House today is about the same size as when the Lord Speaker’s Committee first reported in 2017. Does this suggest that the size of the House of Lords has stabilised?

Baroness D'Souza: If a new colour Government are to come in, we urgently need—we see it all the time—for Front Benchers on all sides to refresh their members. There is a dearth of potential Ministers in both the Tory Party and in Labour. It seems likely that they would probably have to recruit something like, as some of my Labour colleagues say, 100 members. With the existing numbers, that would shoot us up well beyond 900. That cannot possibly occur without a cull of some sort or voluntary retirement. It is stable until the next Prime Minister comes along and decides that there ought to be a whole battalion appointed.

Baroness Hayman: The numbers are stable but the distribution between the parties is not stable. That has changed a lot and a change of Government will cause a problem because of the growing majority of the governing party in the House of Lords at the moment. That is a real problem.

Q61            Chair: In terms of “majority”, I wonder if you would expand that term. It is not an absolute majority.

Baroness Hayman: No, a political majority. This is not far out. The Cross Benchers divide pretty well 50:50 most of the time.

Baroness D'Souza: Over a period, pretty much, yes. It is the political majority that matters.

Q62            Jo Gideon: The Lord Speaker’s Committee has recommended that the size of the House of Lords be capped. Is this necessary? What size should the House be capped at?

Baroness D'Souza: Yes, to capping. The size is to be negotiated, but we have a range of between 450 and 650, perhaps. That could be decided upon. Whatever, it will be a great deal fewer than we have at present.

Baroness Hayman: The principle of being smaller than the House of Commons is important.

Q63            Jo Gideon: The Committee has recommended introducing 15-year term limits. Is there any merit in introducing time-limited membership of the Lords?

Baroness D'Souza: Yes. Why not? If it were to remain part-time and if you were to have time limits, you would not necessarily want to take someone out of working in their career in a particular area. If they were to be full-time members, they would have to be paid and they would have to get back into their professions. For part-time members, term limits, yes.

Baroness Hayman: There are invidious choices here. Age limits are invidious but may be necessary. They might be less of an evil. I slightly worry about corporate memory. I worry. You are a young Committee, not with 30 years in the House, but you would lose that balance between the new appointees and people who have been around the block and bring corporate memory if you had a 15-year time limit.

Full disclosure: I am out twice over, pretty much. There are a lot of people who would be out. In a way, it would militate against younger people accepting appointments. It is a balanced one.

I slightly favour 15-year time limits with a small percentage of possibility of 10-year extensions or second terms. The problem with that is how you stop it being the Whips who decide, frankly. That is a strength of an appointments commission. I would finesse the 15 years.

Q64            Lloyd Russell-Moyle: A way around the danger of constantly looking over your shoulder for your second appointment, if that is what it was, or your second appointment is to allow reappointments only via the Cross Benches. You would have to become non-party political for a reappointment.

Baroness D'Souza: Why?

Lloyd Russell-Moyle: Many do become non-political. Speakers of the House of Commons do. Your role in the extension is no longer to be a party organ but your role is to allow the collective memory of the House to continue and to provide a different role. The role changes in the extension if it is for a—

Chair: Slightly like aldermen in councils.

Lloyd Russell-Moyle: Yes. The second Chamber is much like that system.

Baroness Hayman: The Cross Benchers would be slightly concerned about taking on someone immediately from a political party. It would muddy the waters a little bit in terms of independent Peers. That is not to say they are not already a little bit muddied but it would muddy them further.

Q65            Ronnie Cowan: I want to look particularly at exempted hereditary Peers and the Lords spiritual. First, do the exempted hereditary Peers contribute differently to the House of Lords from the life Peers?

Baroness D'Souza: No, not really, possibly in land matters. With the hereditary Peers we have, we are extremely fortunate. They are contributors and they do have expertise, but it is not unique expertise. The principle of hereditary Peers is unacceptable.

Q66            Ronnie Cowan: They would also have no political patronage. Is that an aid to them?

Baroness D'Souza: They do have political patronage. I am not sure what you mean by that. Hereditary Peers come in. There are Labour hereditaries and there are Liberal Democrat hereditaries and there are Tory hereditaries. They do come in. Do you mean that the system of election—

Q67            Ronnie Cowan: I suppose I am quoting. I am reading a quote from Dr Richard Johnson, Queen Mary University of London, who argues that there are useful practical benefits to this grouping in the House of Lords, such as not owing their position to political patronage, and that the election system enables the best to be elected and, in his words, “mad, bad and dangerous” to be weeded out.

Baroness Hayman: If you look at the size of the electorate in some of these elections, you cannot be—

Baroness D'Souza: It is three Peers voting for three would-bes.

Ronnie Cowan: Getting the mad, bad and dangerous weeded out of all aspects of politics might be healthier.

Baroness Hayman: Everyone who comes into the House should have proper scrutiny by the properly statutorily appointed appointments commission that looks at their suitability, their willingness to contribute and their reason for being there. That should apply whether they are from political parties or anywhere else.

As it happens, in defence, the election of 98 or 99 or however many hereditary Peers in 1999, as often, worked extremely well. The people who were there and who were elected had contributed, had gained the respect of their colleagues and had continued to contribute. The byelection system is mad, bad and wrong and should be stopped.

Baroness D'Souza: And dangerous to know.

Ronnie Cowan: My concern is that we will get 92 hereditary Peers who were given this position. They did not earn this position. It is hereditary. It is passed down through generations—

Baroness D'Souza: Yes, it is unacceptable.

Baroness Hayman: I am with you, comrade.

Baroness D'Souza: It is totally unacceptable.

Q68            Ronnie Cowan: If we are looking to reduce the number in the House of Lords, do we start with the hereditary Peers?

Baroness D'Souza: Why not abolish the system? The existing Peers or most of them could be given life peerages and you could abolish the system of elections.

Q69            Ronnie Cowan: What about the Lords spiritual, then? They are 26 Church of England bishops. No other religion is given this—

Baroness D'Souza: I have been surprised by the Bishops in the sense that you would think they would contribute mainly on spiritual matters but not at all. I will never forget the robust defence that Bishops gave to outlawing female genital mutilation, for instance. This was before we had huge numbers of women bishops. It depends largely on whether you accept or agree that the Church of England is the established religion in this House.

Ronnie Cowan: What?

Baroness D'Souza: Whether the Church of England is the established religion. Okay?

Ronnie Cowan: Yes. Where?

Baroness D'Souza: If you accept that, there is some—

Chair: Baroness D’Souza said in the south, Ronnie.

Baroness D'Souza: What?

Q70            Ronnie Cowan: Where is the Church of England the established religion?

Baroness D'Souza: Is it the established religion, the Church of England, in that—

Chair: You said it correctly. I know what Ronnie is getting at. Baroness D'Souza said it is the established religion in the south, by which I took that she meant England, Ronnie.

Baroness Hayman: No, “in this House”, she said.

Baroness D'Souza: In this House. It is the established religion in this House.

Q71            Ronnie Cowan: My question is, first, that it may be the established religion in this House but it is not the established religion in the United Kingdom.

Baroness D'Souza: Of course. That is absolutely right. There was a Time survey that looked at what people felt about the 26 bishops, who work in a rota. There are never more than about five at any one time. They have onerous diocesan duties. Again, HOLAC should be responsible in part for keeping the number of 26 religious representatives but ensuring that all religions, denominations and faiths are represented. We have a rabbi. We have a proud Zoroastrian as a Member of the House. But to have different faiths and denominations statutorily appointed would be a good idea.

I do not object to the number of 26 religious contributors. I object to the fact that they are all Church of England.

Baroness Hayman: It is a historical anomaly. It is a complete historical anomaly.

Q72            Ronnie Cowan: Lots of things within this place in general are historic anomalies but we are in a position to change those things. If we write them off as being anomalies and carry on, nothing will ever change.

But we are pressed for time and so I want to quote what you both said back in 2017 to this Committee. When you were giving evidence in 2017, you both highlighted that reform to the hereditary Peers and the Lords spiritual was an avenue of reform that could be pursued, but that the political cost of pursuing them at that point was likely too high for the benefit it may produce. That was seven years ago. Has anything changed?

Baroness D'Souza: Not enough. Baby steps, as Helena said.

Baroness Hayman: A deal is to be done with the Church of England. They have made it clear that they understand that 26 is too many.

We go back to the issue that if you legislate, particularly if you do not legislate the whole bang shoot but you do limited legislation, opening up a front on the issue of the Bishops means that you put in doubt the whole of the legislation or the timing of it or anything else. That was behind my comment then. It is behind my comment now.

Q73            Ronnie Cowan: Will there ever be a point when the political costs are not too high? Will there ever be a point when we can say, “We have to change this and we have to change it now”?

Baroness Hayman: If the Government wanted a wholly elected House, definitely.

Ronnie Cowan: Is that what it would take?

Baroness Hayman: You can finesse it now. You can reduce the numbers—

Q74            Ronnie Cowan: I am looking particularly at the hereditary Peers and the Lords spiritual. Is there anything we can do now? Seven years ago, you were saying we needed to change.

Baroness D'Souza: A Bill to abolish hereditary Peers is a Private Members Bill but it keeps coming back. There is widespread support in the House for it. It is a question of the Government giving it time. There is no unwillingness on the part of the House to look at things. When you talk about the political price being too high, for anything that looks at constitutional issues such as this, a Government, especially a new Government, would think that the price is too high. But that does not mean we cannot keep pushing.

Q75            Mr Jones: By the way, I should have declared earlier that I chair the Council for Arab-British Understanding, which has made a submission to this inquiry. I should have done so earlier.

On the point of the hereditary Peers again, earlier you were both critical of those who seek elevation to the Lords simply as an honour, as you put it, without wishing to participate in the proceedings of the House. Do you agree that at least those hereditaries who seek election to the House want to participate in its proceedings and do not need the honour because they already have it?

Baroness Hayman: Yes, but why should they have a special route into the House as against anyone else who applies to the appointments commission—

Baroness D'Souza: On the basis of hereditary right, yes.

Baroness D'Souza: In principle, we should not have people in the House of Lords because of their birth.

Q76            Mr Jones: Is it better to have people appointed to the Lords who have found favour with the Prime Minister of the day for whatever reason?

Baroness Hayman: I do not, which is why I want a statutory appointments commission that takes away the ultimate power. We get into the prerogative and everything else, but it is important that everyone who comes in—and we will talk about the Bishops separately—is subject to the same scrutiny and the same level of scrutiny.

Q77            Chair: What about those who are there now who were appointed on the prerogative power?

Baroness D'Souza: That is all of us, almost.

Baroness Hayman: Pretty well, apart from the Bishops.

Q78            Chair: I always try to stretch these things to credulity, but what about retrospective reappointment? If it is good enough for the new ones, what about the existing ones? I do not mean to sound rude in saying so and it is not aimed at anyone in particular, but it would be interesting to consider, possibly.

Baroness Hayman: Possibly.

Q79            Damien Moore: Good morning. You have both expressed concerns about the appointments process. Do you want to go through what you think needs to be changed about the process?

Baroness D'Souza: We have already said separately and together that it should be a statutory body, which means that it would have the authority to override, perhaps, an individual decision by a given Prime Minister.

Too—and again, I am going back to Philip Norton’s Bill—the composition of the House of Lords independent appointments commission is that there should always be 20% independent Peers in the House Cross Benches, that the members of the Commission could be nominated by the Lord Speaker and Mr Speaker, and that at least four of the nine commissioners should be independent of a party. It also has been suggested that at least four of them should be Privy Counsellors, that they have a renewable term of seven years and also that the commission itself can propose nominees for appointment. It would be quite a significant change to the appointments commission but it would be given the authority that it at present lacks.

Baroness Hayman: As a matter of principle, there should not be one form of scrutiny for political appointees and a different, better, more thorough and wider scrutiny for people who come into the Cross Benches. The level of scrutiny that is currently used for the Cross Benchers should be applied to political appointees and strengthened with the sorts of things that Ruth Deech is talking about such as their reasoning, their statement of why they want to be there and what they could contribute.

Also, if you had a statutory appointments commission, you could give it responsibility for issues of diversity, for issues of geographical representation. It is not impossible for the political parties, which run candidates lists for parliamentary candidates, equally to have lists of people they would like to see in the House of Lords. Then the House of Lords appointments commission could say, “Look, we have a complete desert of representation from the East Midlands and so we want to look within your list for people who could bring that expertise”, or medical expertise or AI or whatever.

It is completely wrong and an abuse of prerogative that Prime Ministers should not have to submit people to proper scrutiny before they enter the House.

Baroness D'Souza: Very briefly, the present system overrides or infringes some of the Nolan principles; for example, bribery, the offer of preferment, undue influence. All those factors have operated in some of the more recent appointments. It is a disgrace that HOLAC has not been reformed. That is a priority.

Baroness Hayman: It is interesting. Back to this honour issue, appointees to the House of Lords do not go through the honours scrutiny system, but nor do they go through the parliamentary HOLAC system.

Baroness D'Souza: For the Cross Benches, yes.

Baroness Hayman: There is a big gap. If someone is going to get an OBE, they will go through a proper scrutiny process. If they get a peerage, they will not. To me—and Frances said the same thing—separating a peerage as an honour from membership of Parliament is important.

Baroness D'Souza: Separating them does not mean we should have two tiers of Peers, those who come in as an honour and those who come in as political. Give anyone an honour and they can rush around. Call us senators and all will be fine.

Chair: Thank you. On that theme, a final set of questions is from John Stevenson and then we will be complete.

Q80            John Stevenson: On HOLAC, if you make it onto a statutory footing, for example, is there not a danger that you perpetuate an elite?

Baroness Hayman: Who chooses the choosers? It is problematic. You could ensure people on HOLAC are not themselves candidates or agree not to be in any way involved. But we have to as a society find ways of having appointment processes for senior appointments and public appointments. You make them as satisfactory as you can. It will never be perfect because you cannot assemble a committee of 12 saints every time you want to make a public appointment. You have to do it as well as you can.

Baroness D'Souza: Yes. For instance, you could have functional constituencies whereby certain professions put forward names, whether they be architects or medics or university people—

John Stevenson: Religious people.

Baroness D'Souza: Also, geographically. You could necessarily have a certain number of—

Q81            John Stevenson: Picking that theme up, if you have before your committee an ordinary GP from a practice in the hinterland against a consultant specialist in London, who do you pick?

Baroness D'Souza: It would depend, let us say, on geographical distribution and also the particular expertise of the consultant. If that consultant had an expertise that was much in demand at the moment, we would—

Q82            John Stevenson: Is it the natural tendency of committees and organisations like that to perpetuate people like them and to be impressed by people of an outstanding standard as against the ordinary person in the street?

Baroness D'Souza: Yes, but I do not quite know what you mean by an ordinary member in the street. Anyone who puts themselves forward or who is, as it were, fingered by HOLAC would have some kind of expertise. Maybe the GP who—

John Stevenson: I get all that, but you will end up with groupthink. You will end up with people perpetuating people like them and people who have that certain degree of respect for a particular thing. The beauty of the House of Commons, whatever you may think about it, is it is a mixed-ability class that reflects our country.

Baroness D'Souza: Why are you saying—

John Stevenson: The danger you suggest and the route you are likely to go down is to try to create a house of elite. They can be completely out of touch with people like—

Baroness D'Souza: Why can an ordinary person not be a specialist? I do not know how you define that. Why can an ordinary person not have real expertise in dance or whatever it might be? I do not—

John Stevenson: I am trying to suggest that, yes, you can have these people coming up before your HOLAC, but at the end of the day you will start to create a mentality and a groupthink. They will think they are doing the right thing because they are taking somebody from—

Baroness D'Souza: What is the alternative?

Baroness Hayman: An election?

John Stevenson: Personally, yes, I would go for an election. That is a personal view but I agree that we are not—

Baroness D'Souza: Do elites put themselves forward for election?

John Stevenson: Yes, they do, but we have a healthy mix.

Baroness D'Souza: Sure.

Baroness Hayman: You can try to minimise the problems that you suggest.

Baroness D'Souza: Chair, I am terribly sorry but I—

Chair: I am conscious of the time and I did not want to cut people off in their flow but, John, if that is all right?

John Stevenson: Absolutely.

Chair: I would like to thank both our witnesses from our first panel this morning for giving their time. If they wish to acquaint us with anything further, they would be welcome to write. At this juncture, I will thank our first panel and ask our second panel to come forward.

Examination of witnesses

Witnesses: Lord Burns and Tom Wilson.

Q83            Chair: Hang on for a moment because we will be joined on our second panel this morning by Lord Burns and also Tom Wilson, who is Clerk to the Lord Speaker’s Committee on the Size of the House. Good morning to you both. I wonder, beginning with Lord Burns, if you would introduce yourselves for the record.

Lord Burns: I am a Cross Bench Peer. I have been in the House of Lords since 1998 and I am the Chair of the Lord Speaker’s Committee on the Size of the House.

Tom Wilson: I am Principal Clerk of Select Committees in the House of Lords and the original and continuing Clerk of the Lord Speaker’s Committee on the Size of the House.

Q84            Chair: Thank you. There will not be any particular surprises in these questions because you were listening to the first panel, but there are some nuances. If I can begin, Lord Burns, what assessment did your committee make of the role and functions of the House of Lords, briefly?

Lord Burns: I should emphasise that our remit was to explore methods of reducing the size given the current role and functions. We were not asked to look at the issue of role and functions. Therefore, for the work that we did, we took the present roles and functions, as were well described by the former Lords Speakers this morning, as given. That was essentially to accept that it is an appointed House apart from the issue of the accepted hereditaries and to come up with proposals as to how we might reduce the size. That was the remit that I was given.

My broad views about role and functions very much mirror the evidence that you have heard earlier this morning.

Q85            Chair: Do you have concerns about the composition of the House or are you purely limiting your study to the size?

Lord Burns: No, it is also the composition in terms of the total numbers, but not so much in terms of the type of people who were appointed. I regard the key function, as we heard this morning, as scrutiny of legislation. The system of committee hearings and reports is the second major part of what the House does.

The current mix of skills and experience and backgrounds is broadly suitable for those functions. A lot of Members have a deep interest in public policy and legislation. Some have knowledge of the design of public policy. Many have knowledge about the impact of public policy on the wider community. They are people of experience and, by and large, they are people who understand the relationship between the two Houses of Parliament and how that has to work if it is to achieve successful legislation effectively.

Most active members have those characteristics and skills that I have mentioned, including a sharp degree of independence, regardless of which party Whips they take, although you can also see from the attendance figures that quite a lot of Members do not necessarily have such a deep ongoing interest in the matters discussed. Other things occupy their time.

Q86            Tom Randall: Lord Burns, why is the size of the House a problem?

Lord Burns: From the point of view of capacity, cost and so on, it is not a huge issue. There are some practical problems. There is congestion at Question Time. Speaking times are often limited. Peers do not have their own offices. They share offices. They have limited room for staff.

But the real issue with the size is not only the level of it but what has been happening to the size, the extent to which it damages the reputation of the House and the extent to which it distracts attention from the important work that takes place.

As I speak to people about it, most people put to me some good questions on this subject. Why is the House of Lords larger than the House of Commons? Why is there no limit on the size? Why should the Prime Minister be able to appoint any number of people he chooses to the House of Lords and whichever party he wishes to appoint them to? Why is there no scrutiny of the skillset of the people who are appointed or of the commitment that they make to take part in the House? We had the issue with several appointments of people who appear with personal connections, which raises questions. As we heard this morning earlier, separating the question of peerages as an honour and whether exactly to play an important role in the legislative Chamber are ongoing issues.

Those questions get asked of me all the time when I go around and speak about the work of the Lord Speaker's Committee. To be perfectly honest with you, they are difficult questions to answer and it does nothing for the reputation of the place that the numbers can rise randomly, very much about political pressures and by what the decisions Prime Ministers wish to make. The key parts of the recommendations that we made were not only that it would be better if the House of Lords were smaller—although it is almost a secondary issue—the most important issue we came to was that there should be a limit on the size. You should not have the ability to simply appoint the number of people that you wish to be members. We do not know of any other legislative chamber that has these characteristics. The size is very much tied up with the issue of a limit on the size and the impact that it has upon the reputation of the House. Part of the remit in the work that we did was how to get the size of the House of Lords down so that it was less than the size of the House of Commons, to keep it that level and have mechanisms in place that meant that it could not simply rise again in the future.

Q87            Tom Randall: Is there a slight contradiction though in that the House of Lords is a House of expertise, that it might be larger so that expertise can be drawn on as and when necessary?

Lord Burns: There is something in that but I do not think it answers the question about whether there should be a limit on the size. The consequence that we have with this combination whereby there is no limit on the size and Prime Ministers can choose how many people they wish to appoint to the House of Lords of whichever party they choose is that you create a mechanism for leapfrogging each time there is a change of Government. There is no limit to the extent that leapfrogging could take place. That seems to me to be not only bad in itself but bad for the reputation of the House of Lords as a serious body that is scrutinising legislation and doing the work that it is doing.

Q88            Tom Randall: How was the figure of 600 settled on?

Lord Burns: It was mainly that it should be no larger than the House of Commons. The plan at that time was that the House of Commons would be reduced to 600. However as we heard this morning from the former Lord Speakers, when you look at the issue of what the attendance has been for major pieces of legislation and major business and the membership of committees the House wishes to run—and we did not go into this in any great detail—our working assumption was that a House of 600 would certainly be able to do all of the tasks that we felt were necessary.

Q89            Tom Randall: Why is a cap necessary to achieve that?

Lord Burns: The cap is not necessary to achieve that; the cap is necessary to maintain that. If you do not have a cap then you expose yourselves to the problems that we have seen over the last 30, 40 years. At the time of the 1979 election, there were about 300 life Peers in the House. At the time of the 1997 election, there were around 400 life Peers in the House. At the time of the 2010 election this had become 600, and today it is around 700. They are round numbers. The mechanisms that we have at the moment encourage this leapfrogging because the party that is in Government makes the large majority of its political appointments to its own party. Then if you have a change of Government this has to be reversed, which requires another large increase. This is what is producing the leapfrogging and, therefore, we came to the view that if you wanted to stabilise the size of the House you had to have a mechanism for controlling the number of appointments so that you could not exceed the limit, but secondly—and you may want to come to this later—that you required a mechanism for a fair allocation of the seats between the parties so that you did not get such a large number of appointments to the governing party that then had to be overcome if there was a change in the Government.

One of your earlier questions this morning was why it was that the size has stabilised over the last six years or so; because since we started our work the size has been about the same. The stark reason for that is that there has been no change of Government during that period and, therefore, we have not got to the next leapfrog that may be about to happen. If there was a change of Government the present situation would be very uncomfortable for the incoming Government in terms of the balance of its own numbers compared to the Opposition and in terms of the people who would have to fulfil the Front Bench responsibilities.

Q90            John Stevenson: If you did have a fixed cap at 600 and that was it, how then does a Government appoint Ministers?

Lord Burns: You have to have with it a mechanism that will create a steady flow of vacancies. At the moment there are about 20 to 30 vacancies a year. We put forward a proposal that there should be 15-year terms that would over time deliver 30 to 40 vacancies a year and there would be room within that to make those appointments.

Q91            Lloyd Russell-Moyle: Presuming you do not have an elected House of Lords—and I think a number of us would prefer some sort of democratic process—is there not a problem that what you are proposing here restricts the democratically elected Government? You are saying a Government comes in with a large mandate and they should not be able to have a Lords that reflects that large mandate; they should not be able to bring in their experts, their people who have knowledge of the topic to be able to advise them on what the country wants now, and instead they should be bound by previous Governments that have been kicked out by the people.

Lord Burns: No Government ever has a majority in the House of Lords because of the number of Cross Benchers.

Q92            Lloyd Russell-Moyle: We heard in the previous session they have a functional majority because the Cross Benchers split evenly and you have a functional working majority in that sense.

Lord Burns: If a system like this had settled down you would not find the position that we have today where the Labour Party would have so many fewer seats than the governing party. This would control to a greater degree and it would—

Q93            Lloyd Russell-Moyle: It is not unusual for 10, 12, 13 years for one Government to be in power and to have had decent majorities in those 12, 13 years, and in our system the change happens overnight. There is a decent argument to advocate this but are you advocating that the House of Lords should be a chamber that frustrates those quick changes?

Lord Burns: My argument is that Governments get their business through the House of Lords, not by the power of their numbers in the House of Lords because in the end, the House of Lords will give way. Governments get their business through the House of Lords by the power of their argument and by the various pressures that they put on. What you need is Ministers; you certainly have to have scope to bring in Ministers. But if you look at what has happened in the past, it is the pressure of one Government to make a huge proportion of appointments to its own party that then leads to the pressures on the subsequent Government to do the same thing. This is what creates the leapfrogging. There has to be a calmer way of doing this whereby you switch the numbers gradually.

In the report that we wrote back in 2017, we showed what would have happened if you had used our formula for allocating seats between the two main parties so that it did reflect the results of the most recent general election. You would get a wave and the new Government would gradually increase its size, it would get a larger majority of the new appointments, and it would have scope and space to make the appointments that it needed.

Q94            Chair: Is it not the case the last Labour Government did not achieve that so-called working majority in the Lords, even with the exclusion of the majority of the hereditaries until some years into its tenure?

Lord Burns: Yes, but what then happens is that if you have a 10, 15-year Government you find that if too large a proportion of the appointments are going to the governing party you simply build up a problem for what then happens when you have a change.

Our remit was to do all of this within the framework whereby this was an appointed House, so what we are wrestling with here is not whether there should be a different type of House; the question was how to make this work. Avoiding leapfrogging means that there must be both a fair allocation of the seats throughout, benefiting of course the party that is in Government, but that it should not become excessive and then put pressure for another large inflow—

Q95            Lloyd Russell-Moyle: There are some systems that award additional seats to the Government. The Greek system, even though they are a single chamber, awards extra seats to the Government. Is that something that might help alleviate this, that you recognise that a percentage is reserved to Government—that can be for ministerial appointments or that can be so that they can rebalance it, understanding that that percentage will always change at the next election?

Lord Burns: We have looked at and talked about ways. For example, even if you had a House of 600, the maximum size, you should possibly have fewer than 600 as you run up to an election so that there is space for appointments afterwards. Or you might have a temporary allowance for Government to overshoot their numbers and then to gradually correct them over time so that they can deal with the moment of the change. I understand that is an issue and it is something that we have thought about a lot.

Tom Wilson: The Committee was of the view that the new appointments should be allocated according to an average between the number of seats won by a party in the Commons and its share of the national vote. The point about that was not to just wholly reflect the big-scale changes you are talking about in the Commons but to have a bit of the first past the post, but also a bit of the PR so the smaller parties in particular would get a bit of representation. I do not think that counteracts your point at all but just explains that the Committee deliberately took that view; it did not want to exactly mirror the House of Commons.

Chair: On that; a party that received no seats in the House of Commons would still be eligible for seats in the Lords.

Q96            John McDonnell: I was going to ask you a series of questions about how your thinking has evolved. I think you have explained that. Can I come back to the issue? It is not so much the numbers that are going; it is the numbers that are coming in. It is the appointments that are the problem. With a potential change of Government, inevitably there will be a demand for more seats for the incoming Government. What processes have you looked at for how you get rid of existing members? In the allocation that you are talking about on a party-political basis, would you leave that to the individual political parties to decide who remains within the Chamber and who goes? Who sacks them; that is the issue.

Chair: You can use your terminology, Lord Burns, if you wish.

Lord Burns: The issue of whether this is voluntary or whether it is statutory is the first important issue. When we did this report we were asked to come up with a proposal that could be done without having large scale legislation, which is why in some of the cases we came to the position that we did. I spent quite a lot of time in 2017 and 2018 talking to the leadership of the various parties in the House of Lords about whether we could get a voluntary arrangement whereby we increased the number of people in each party who would be leaving in order to get the numbers down. We had no success with that.

So we are either in a position where there will have to be legislation either to introduce an age limit or some other metric to increase the rate of leavers, or we will see the size of the House of Lords increase again if the Labour Party were to win and it wished to get a reasonable number of people in. We get 20 to 30 people leaving a year by a combination of death and retirement, but that would probably not be enough. Of course there is an issue about what might happen with the excepted hereditaries, which was discussed earlier today—

Chair:  We will touch on that in a moment.

Lord Burns: —and there are various options on that front. My personal view is that with a change of Government, we will either see a significant further increase in the House or some statutory mechanisms will have to be introduced that would increase the number of people leaving.

Q97            John McDonnell: Previous witnesses mentioned that some members of the House of Lords are financially dependent upon being members of the House of Lords. Have you ever thought about a voluntary severance scheme?

Lord Burns: Yes, we have discussed this. The major view that we get on that from our Committee—and particularly from the people who have been around in the House of Commons in an earlier life—is that this is politically toxic. The idea of paying members of the House of Lords to leave is something that none of them thought that any Government would be willing to face. I took this advice from those who had spent some time at this end.

John McDonnell: It might be cheaper.

Lord Burns: There is no difficulty in coming up with a version that is cheaper, but I am told by people with much greater wisdom than me that this would not fly.

Q98            Jo Gideon: You already made it clear that you do not believe the size of the House of Lords has stabilised. Going forward we have that large chasm of 270 Conservative Peers compared to 175 Labour Peers. A large number potentially might join should there be a Labour Government. I have not yet heard a solution. We have discussed a number of options; which do you think is the least toxic?

Lord Burns: The least toxic is doing something about the excepted hereditaries. The second one is an age limit. The numbers there are quite stark. What happens in the House of Lords is that on average people join when they are 60; they leave when they are on average 80, and the average age of the House is 70. It is a 60, 70, 80 House. There are 125 members who are 82 or over. There are 74 members who are 85 and over.

I am not wild about age limits on an ongoing basis but if you wanted a once-off change that was part of introducing a cap and part of getting down to the size that you wanted to, some kind of age limit is probably the second easiest issue to deal with after the excepted hereditaries. None of this is easy and it would require a statute. Dealing with the Bishops is also enshrined in law and that cannot be changed, either without their co-operation or without new legislation.

Q99            Lloyd Russell-Moyle: I assume that is why your Committee changed its opinion from having non-legislative processes to legislative processes because the only way to achieve some of this now is through legislation?

Lord Burns: From discussions I have had over the last six years that we have been doing this I conclude that we are not going to get there by a non-legislative route. There will have to be legislation. It is difficult of course—and you know about this much better than I do—how to have legislation that is sufficiently contained and only deals with the issues that have to be dealt with and does not spread wholesale into another great re-examination of the second Chamber is itself a political challenge.

Q100       Lloyd Russell-Moyle: You have rightly, in my view, called for the removal of hereditary Peers. By what mechanism do you think that this could be best achieved? Are you talking about the removal on day one of hereditary Peers or the removal, as we heard earlier on, of the re-election process so effectively the hereditaries are all turned into life Peers?

Lord Burns: There are three approaches to this; one is ending the byelections, which the vast majority of the people in the House of Lords think should be done, but it is a slow burn because quite a lot of the original 92 have subsequently been replaced and if anything the average age of the excepted hereditaries is a touch lower than it is of the life Peers as a result. That is the easiest way of doing it. One is to simply go back and have the legislation to exclude excepted hereditaries and to have some room whereby some of those could be reappointed by the parties to life peerages.

Q101       Lloyd Russell-Moyle: Anyone could apply?

Lord Burns: Indeed, and it could be part and parcel of the way of new appointments. I agree with the point that was raised earlier; some very good members have come through that route and some who I have served on committees with. However at a time when you will be making the kinds of changes that we are making to seriously reduce the size of the House, put in place a cap, and the membership should over time reflect the results of the elections, it is very difficult to see that there is a place for the excepted hereditaries. Therefore, we need to be thinking of how that will be dealt with and whether it will be done over a very long period or a relatively shorter period.

Q102       Lloyd Russell-Moyle: If we are looking for arbitrary quick wins like age caps and hereditaries it might be easier to do them quickly like taking off a plaster.

Lord Burns: Yes.

Q103       Lloyd Russell-Moyle: What is your view of the Lords spiritual in the House of Lords?

Lord Burns: Much the same as with the excepted hereditaries is my personal view, but we did not deal with this as a Committee for the simple reason that it would require legislation to deal with them. In the discussions that I had with the convener of the Lords spiritual, they were prepared to reduce their numbers voluntarily in proportion to the extent that we reduce the overall size of the House. As you have heard, they run a system of sharing out who attends. They timetable their appearances.

Q104       Lloyd Russell-Moyle: We heard some discussion in the previous panel about extending it to other religions. Is there a problem with that in terms of assessing what religions you would want to extend it to, what religions are accepted as religions and what variations of religions are accepted? Some variations might not be as palatable as others. Would it not be easier to say, "Religious figures, if you have done good work, apply via the general process and we will reward you like we would reward any individual with good work; we will recognise that and put you in the House to add to the work of the House"?

Lord Burns: It is my view that it should be part of the process of appointing people through HOLAC.

Q105       Lloyd Russell-Moyle: It could be one of the conditions that they actively try and find diversity in religion.

Lord Burns: A number of members who are former Lords spiritual  are now there are as life Peers.

Q106       Lloyd Russell-Moyle: Your Committee recommended a formula for political appointees; namely the quota system, based on the average percentage share, the Commons seats, and the percentage of the national votes, as Tom mentioned earlier on. It is a system I quite like—

Lord Burns: Why so surprised?

Lloyd Russell-Moyle: —within the framework of the House that we have got. Why do you think such a formula is necessary and why should it have that balance between the proportionality and the seats?

Lord Burns: This reflects a bit of my obsession as a statistics person. We simply looked at alternative ways that the seats might be allocated. First, we agreed that there should be some formula for the new appointments; secondly, that it should reflect political change over time. What we were looking for was something that over time would mirror what was happening but would not be too violent in terms of the swings of appointment. We simply looked at various ways of weighting together issues of numbers of seats and the percentage of the vote.

If you did it by the number of seats only, the swings in terms of the appointments were, we felt, too large to keep the stability that we wanted to see. If it was entirely in terms of the percentage of the votes we did not feel that it gave enough emphasis for the governing party of the time. This was simply a question of looking at alternative ways and formulas for doing this and seeing how it would have performed in the past and, therefore, which seemed to be the most sensible. In the original report, we show some graphs of the effects of that and it seemed the one of averaging the seats and the votes was the one that was most robust in terms of delivering the kind of pattern of new appointments that you would want with a fixed house.

Q107       Lloyd Russell-Moyle: You say that one would not require to win a seat in the Commons to be eligible for the percentage calculation. At the moment there is a convention that the parties that win seats in the Commons over time will be offered a place. You have seen this with the Greens, for example. If you do not win a place in the House of Commons, if you do not meet that threshold, you do not get offered. In Germany—while it is a different system—to access the top-up system there is a percentage or there is a threshold that you have to have won a seat in the constituency ballot. Is there a danger of not having a threshold there? A threshold of winning a seat in the Commons is quite a naturally understandable threshold the public could understand.

Lord Burns: I am very happy at the thought of looking at alternative ways of doing that. We had a slightly larger problem in doing the arithmetic, which was that even for parties that had a seat it may take one, two, or three years to get an allocation for one. If one were serious about this and it was going through that detailed scrutiny, then one could certainly make some small adjustments. But the principle of this, which is my second major principle, the first one being that there should be a limit on the size, the second one is that there should be a fair allocation of seats that would be year by year and it would reflect the results of the previous general election so that you would follow the pattern of what has been going on in terms of elections.

Q108       Lloyd Russell-Moyle: Why just Westminster elections? If you look at the second House in Germany, which is linked to the outcome of the regional elections, if you are trying to bond a United Kingdom—some people might not see this as a priority—where you say all parts of the United Kingdom are involved this endeavour and their elected representatives are important in this process, is there not any consideration of saying it should take into account regional Parliaments, national Parliaments, even Assemblies and councils?

Lord Burns: You would have to persuade me that it would actually lead to results that were very different from the results that one would get from something a bit more straightforward. This is an empirical exercise in terms of asking how much difference it would make. Given that there is a common pattern between our general elections and a lot of what happens in our local elections it is not immediately clear to me that it would make a lot of difference, but I am happy to look at that.

Q109       Lloyd Russell-Moyle: Could you do the numbers?

Lord Burns: Yes, we could. Not very quickly because—

Lloyd Russell-Moyle: It would be curious.

Lord Burns: —in this whole area obtaining information turns out to be—

Chair: I will also set Mr Russell-Moyle some homework.

Q110       Jo Gideon: You mentioned that the Lords spiritual had agreed that if the numbers overall came down they would accept a reduction in their numbers. Did you also have a discussion with them about giving some of the numbers to other faiths within that allocation?

Lord Burns: No, these discussions were entirely about their group, the 26.

Q111       Jo Gideon: If there were to be Lords spiritual from other faiths that increase the number of the House of Lords again?

Lord Burns: Yes. Or it could come through a HOLAC procedure; that is the other way it could be done. I am quite anxious that in the process of looking at new appointments—which for party appointments will always be substantially at the choice of the leadership of the party—nevertheless they are prompted and they are reminded that there should be diverse coverage in terms of the people who they come forward to. One of the things that HOLAC can do is to keep record on that and to be clear that there is to be a diversified House at the end of the procedure.

Tom Wilson: May I make a couple of observations in response to Mr Russell-Moyle? One thing that underlines the point you are making is that Northern Ireland has a different political system in terms of the parties, and it is a very small part of the UK in terms of population. We would need to look particularly carefully at how that would work out for the DUP, Sinn Féin and so on. Sinn Féin and the SNP do not currently take seats in the House of Lords so that is something we would need to also think about.

Q112       Damien Moore: You mentioned some of the measures to reduce the size of the House of Lords, but what should be the criteria for appointment to the House of Lords and who should judge these criteria? As an aside, the prerogative powers; are these things that are too good to give up?

Lord Burns: They will be very difficult to give up and yet I suspect that they are the most important things that have to change.

Following on from the approach I have been outlining about how we were proposing that appointments should be made, the total number of appointments on an ongoing basis would be what was available and then they would be allocated—according to the sort of formula we have been discussing—to the parties. On the political parties, my view is that essentially those are decisions for the leaders of each of the parties, but with HOLAC scrutinising them and maybe advising them if there is anything that is not balanced about their proposal, obviously HOLAC is scrutinising them for fitness and proper and so on. I am very much in favour of the notion that in putting forward people parties should explain why they think that person will be a good member of the House of Lords. It is also important that the person who is chosen should publicly say what contribution they expect to make and what time commitment they will make so that it exerts pressure then upon people to only take this on if they have the time. Then for the Cross Benchers, that should be a HOLAC matter.

One of the interesting things is when the HOLAC system was first introduced there was quite a high level of appointments; more recently they have been down to two per year and that I do not think is sufficient. We have got ourselves into a position whereby the Prime Minister has been appointing a larger number of people to the Cross Benches than his predecessors did. There was a sort of informal arrangement whereby Prime Ministers might have 10 appointments over the course of a Parliament to make appointments of senior civil servants, senior military people and so on. That convention seems to have slipped of late.

We would like to see HOLAC having a much larger influence over the non-party appointments. It would be within the spirit of what happens at the moment but it is an opportunity to move away and to have no doubt the people who are coming in through this route will play a significant part in the work of the House of Lords where of course there has been an issue in the past.

Q113       John Stevenson: What are your views on HOLAC, and its being put on a statutory basis?

Lord Burns: We have seen the way that it has worked and it does a good job. It has had some quite tricky issues to deal with in recent years. I think it should be on a statutory basis but the issue is what the statutes will then say about both what its powers are, what its reach was and what it was required to do, particularly in terms of diversity and making sure that there is proper regional representation and proper representation of people from different skills and different disciplines.

Q114       John Stevenson: I still practise as a lawyer and in my partnership we have a mixture of female and male, different ages, different backgrounds, and different areas of law. We employed a marketing manager and after a few weeks she came in and said, "You all think the same way". Is there not a danger of that?

Lord Burns: This is a very tricky issue. People who are interested in public policy, who are interested in how to make changes and who are interested in how public policy affects people are people who to begin with have an interest in this work. That, to some degree, defines them as coming from a particular subset. Given what the job is at the House of Lords—it is quite a detailed and technical job of scrutinising legislation, and participating in the Committees, many of which are quite specialised—it seems to me inevitable that you will find people who come from an educational background and a sort of life experience that have some things in common. It is inevitable. I would say the same is true of the House of Commons frankly; they may come by different routes but they are people who have very similar interests in life, which is how to make public policy work better in the way that they would like to see it working. I am not sure how one moves away from that. You want people who are interested; there is no point in having people in the House of Lords who are not interested in public policy and legislation and how things may change. They would become very bored very, very quickly.

Q115       John Stevenson: Is it not a danger you end up not having disruptors or mavericks?

Lord Burns: There are plenty of those. If it is disruptors you want then I think we have those in large numbers indeed. I will say no more.

Chair: On that note, I should heed your advice, Lord Burns. I was going to comment on the membership of this Committee but I perish the thought that I should. Can I thank you very much indeed for your evidence as part of our second panel, and to your Clerk, Mr Wilson, as well for his participation. If there is anything further you wish to acquaint us with please write, but for the moment thank you very much and I reiterate my thanks to our first panel from earlier as well.