Philip Norton is a Conservative peer and Professor of Government at the University of Hull.
When House of Lords reform is discussed, it is invariably in terms of its composition. People on a wet Wednesday afternoon sit down to craft their pet schemes for who should be in the House of Lords, and in what numbers.
I regularly get proposals that writers think are original, without them realising they are simply regurgitating what others have suggested (having peers nominated by professional bodies is a hardy perennial).
Such proposals focus on input legitimacy (how a body is chosen), not output legitimacy (what a body does). They focus on form, not function. But form should follow function: the starting point is to determine what you expect a body to do.
Proposals for change should start from what the House of Lords exists to do. The House does not exist to conflict with the elected House of Commons (which would render it objectional), nor to replicate what it does (which would render it superfluous). It serves to add value to the political process by carrying out tasks that need to be fulfilled, but for which the House of Commons lacks the resources (be that in terms of time, procedures, or political will) to complete.
Core here is the task of legislative scrutiny. The House of Commons as the elected House determines the ends of legislation (the purpose, agreed on second reading). The House of Lords focuses on the means (the provisions, designed to achieve the purpose).
Political imperatives and the increasing demands of constituency responsibilities militate against MPs being able to engage in detailed scrutiny, not just of primary legislation, but also, and most notably, secondary legislation – and when the volume of legislation is expanding, the need for forensic scrutiny becomes even more compelling.
The House of Lords has the experience and expertise, the procedures, and the will to undertake this role, and makes more of a difference to the detail of legislation than the House of Commons. If one accepts that good law is a public good, then the House of Lords is essential to the political system. The role of legislative scrutiny is complemented by that of scrutinising government and public policy.
Proposals for reform need therefore to be assessed in terms of whether they strengthen the House in fulfilling its role as a chamber of legislative scrutiny.
The size of the House may be a problem because of how it is seen by the public and because of pressure on the resources of the House if there is a large attendance. But by itself is not a first-order issue in terms of affecting the capacity of the House to fulfil its tasks.
Reducing the size of the House may not necessarily detract from that capacity, but depending on the method of reduction, it could do. Imposing an age limit, for example, may serve to undermine the ability of the House if it removes members who are contributing to the expertise and experience necessary to legislative scrutiny.
To reduce numbers while not impacting negatively on its scrutinising capacity, the focus needs to be on removing those who do not contribute to the work of the House. This points to a more targeted, rather than an arbitrary, process deriving from generating criteria for determining who is not contributing productively to scrutiny.
This focus also means addressing how new peers are chosen, ensuring that those nominated have the experience and/or expertise necessary, not least in areas that may not be covered already by members, as well as the ability to draw on it for the benefit of the House. Nomination for a peerage should not be seen as a reward for past services.
The hereditary peers in the House of Lords constitute members who have not arrived through prime ministerial patronage. If they go, then the case for reforming the process by which new peers arrive is reinforced. People should not be recommended to the Crown by the prime minister because they are cronies, or long-serving political allies, or party donors.
I have for this reason introduced a Private Member’s Bill – the House of Lords (Peerage Nominations) Bill – being debated later this session, which puts the House of Lords Appointments Commission on a statutory basis and requires it to vet nominations to ensure that those nominated meet a requirement of conspicuous merit and are able and willing to commit to the work of the House.
The Commission is also empowered to recommend criteria having regard to the diversity of the population of the United Kingdom. If it advises against a nomination, the prime minister cannot forward the name to the monarch and cannot re-submit the name to the Commission for a further two years.
The Bill also ensures greater transparency, requiring party leaders to inform the Commission of the criteria and process utilised for nominating people for life peerages.
Such a reform has a twin benefit. It provides for members with the ability to contribute to the essential work of the House, and provides for a process that engages public trust. It thus has the capacity to enhance a public good, ensuring that law is subject to thorough scrutiny by those able and willing to engage in that scrutiny.
Over and above membership, the House can reform its structures and procedures to strengthen its scrutiny. Legislative scrutiny is not necessarily confined to the provisions of a Bill once introduced. There is case, as the House Constitution Committee recommended in 2004, for looking at the legislative process holistically, with Parliament engaging in pre- and post-legislative scrutiny.
The success of a Bill should not be seen in terms of it getting on to the statute book. Its success should be determined by whether it achieves what Parliament intended it to achieve. If it doesn’t, corrective action should be taken.
Post-legislative scrutiny plays to the strengths of the House of Lords, enabling it to draw on the knowledge of members and without affecting the primacy of the House of Commons. It can engage with those affected by an Act to assess its impact.
There is a range of other changes that can be made to enable the House to fulfil even more effectively than it already does its core task. That task is core to the legislative health of the nation.
All these proposals fall within a clear conceptual framework and, through enhancing the capacity of the House to engage in effective scrutiny and drawing on people who are clearly qualified to undertake the task, has the potential to strengthen public trust.
Form should follow function. We should focus on how to develop form derived from a clear, and accepted, view of function.
