30. Having identified the appropriate roles, functions and powers of the second chamber, we turn to the question what sort of membership is desirable to undertake these roles and perform those functions. We consider five qualities desirable in the makeup of a reformed House, namely (not in any order of importance):

·  legitimacy

·  representativeness

·  no domination by any one party

·  independence

·  expertise

Legitimacy

31. We have referred above (in paragraph 2) to a general desire to increase the legitimacy of the second chamber and (in paragraph 16) to the lack of legitimacy which has in the past beset the House of Lords and to the view of the Royal Commission that greater representativeness would confer a new legitimacy on the House. The Royal Commission Report talked of the new "confidence" that a reformed House would have.[37] The Commons Public Administration Committee Report also considers the question of legitimacy.[38] Some maintain that only a democratically elected second chamber can be truly legitimate, others that there are other routes to legitimacy, including in particular the other qualities which we discuss below.

Representativeness

32. Before the introduction of life peerages the House of Lords could be said to have been unrepresentative of almost any group other than landowners. It is now a much more representative body, though the manner in which its members are appointed has continued to sustain some doubts about its legitimacy.

33. Nevertheless, of the desirable qualities we have listed, the present House is weakest in respect of representativeness. It is overwhelmingly male (84 per cent). [39] It includes few young members (the average age is almost 68). It has a disproportionate number of members from the south-east and too few from the English regions. And, although more representative of ethnic minorities than the House of Commons (over 20 members[40]), it still falls short of properly representing the UK's ethnic diversity. We consider that all these elements of representation must be improved and that better balances can be achieved either by a new appointment system or, with appropriate checks in place, by various methods of election.

No domination by any one party

34. The Royal Commission considered that it was crucial that no one political party should be able to dominate the second chamber: "If it were to be controlled by the party of Government it might become nothing more than a rubber stamp. If the main Opposition party were to gain control, it could be used to produce legislative deadlock …"[41] This view was endorsed by the Government in its White Paper[42] and accepted by the Commons Public Administration Committee.[43] We note that this is a characteristic of the present House: no party has more than one-third of the members of the House (and this would continue to be the case with the departure of the 92 excepted hereditary peers).[44] We therefore conclude that any arrangements for the reformed House must take account of the importance of maintaining the principle that no one political party should be able to be dominant in it.

Independence

35. We have identified independence as an important characteristic of the present House of Lords in keeping the executive to account.[45] That independence arises from the fact that the House contains a substantial number of Crossbench members who do not take a party whip. But equally important is an independence that arises from membership of a House where the party whips do not influence party-affiliated members in the same way as they do in the Commons. The fact that members of the present House do not face election or some form of reselection is an important element in underpinning that independence. It is our view that any new system of getting members into the House needs to ensure that independence, whether arising from non-party affiliation or from less attention to the requests of the Whips, is not jeopardised or diminished.[46]

THE INDEPENDENT MEMBERS

36. Of the 681 members of the House of Lords on 9 December,[47] 210 (31 per cent) were not members of one of the three main political parties. They comprised 24 bishops, 9 members with no affiliation and 177 Crossbenchers. The term "Crossbencher"[48] is used to describe those members who belong to a group which represents the interests of members who do not take a party whip, and which meets weekly under a Convenor to discuss matters of common interest, but not matters of political controversy (which are for individual members). Since 1999 the Convenor has received public funds to enable him to employ assistance.[49]

37. Among the Crossbenchers are 12 serving Lords of Appeal in Ordinary, several members of minor political parties and several members with definite political affiliations who sit on the Crossbenches because of the office or position which they hold or have held, or for other reasons. By custom, law lords, former Speakers and former public servants normally join the Crossbenchers. Many others such as industrialists and scientists choose to do so, including some but not all politicians from minority parties with no party organisation in the Lords. The fifteen non-party political life peers so far nominated by the Independent Appointments Commission have all joined the Crossbenchers.

38. The impact of the Crossbenchers on voting in the House of Lords is less frequent than their numbers might suggest, because as unwhipped members they usually vote only when they have heard the arguments. On the other hand it is this very ability to listen to argument and vote accordingly that makes the contribution of the Crossbenchers particularly valuable in specialised areas such as medical ethics, or areas of special sensitivity or importance such as anti-terrorism measures. In the last session, 2001-02, 3355 votes out of a total of 39,007 cast in 172 divisions (8.6 per cent) were cast by Crossbenchers.[50] The role of Crossbenchers is often particularly significant in relation to participation in debates and committees and the quality they bring to these deliberations.

INDEPENDENCE AMONG PARTY MEMBERS

39. It is much more common in the Lords than in the Commons for party members to speak and vote against their party's line. This is particularly true of supporters of the governing party. This may result from the fact that, on the whole, the Opposition parties choose the issues on which they decide to challenge the Government; it is hardly surprising that they should thus choose issues on which their supporters are united and Government supporters are not. The fact that members almost all have seats for life and that the whips have few sanctions available other than withdrawal of the whip contributes to independence among members of the House who are party members. Furthermore, in an unpaid part-time House it is easy for members unsympathetic to their party's line to absent themselves when they do not wish to go to the extent of voting against the party line.

IMPLICATIONS FOR A REFORMED HOUSE OF LORDS

40. The presence of a substantial number of independent members, and the fact that almost all the members of the House have seats for life,[51] crucially ensure a valuable degree of independence which is so important to the effectiveness of the present House. Such independence would be significantly reduced in a substantially elected House. We consider this independence an important element in any reconstituted House.[52]

Expertise

41. It has often been said that in the House of Lords an expert may be found on any subject. The nominations made by successive prime ministers have brought into the House, as well as a very significant proportion of politicians, a wide range of people who have achieved distinction in many fields. It can be argued that, because membership is for life, there is a risk that some older members' expertise may sometimes be out of date. On the other hand the part-time nature of the present House enables members with contemporary knowledge and skills in a wide range of disciplines to participate in the work of the House. There is no doubt that the quality of debates can be very high as a result of the range of expertise to be found in the House. While many of those concerned are Crossbenchers, there are also others with specialist knowledge who take a party whip. It is unlikely that many of them would wish to fight an election to gain membership of the House, nor to accept a commitment to more or less full-time membership.

42. We consider the expertise which is evident in the existing House to be something of considerable importance which we would wish to see preserved in the new House.[53]

Conclusion

43. The existing House of Lords meets several of the criteria which we have been considering, namely lack of domination by one party, independence and expertise. If these existing qualities, bolstered by a greater representativeness, can be transferred to the reformed House, we believe that a new legitimacy, which we have already highlighted in considering the House's role, will naturally develop.[54]

38   Commons Public Administration Committee Report, paragraph 68. Back

39   This figure would be reduced to 82 per cent (the same as the present percentage in the Commons) with the loss of the 92 hereditary peers, of whom all but 4 are male. All the 25 bishops and all the 28 law lords are male. Back

40   This represents about 3 per cent of the membership of the House. The equivalent figure for the United Kingdom population is about 7 per cent (Social Trends No. 32, Table 1.4). Back

41   Royal Commission Report, paragraph 10.25. Back

42   Government White Paper Completing the Reform, paragraph 35. Back

43   Commons Public Administration Committee Report, paragraph 80. Back

44   An analysis of the membership of the House at the start of the new session in November 2002 is given in Appendix 2. Back

45   See above, paragraph 24. Back

46   The importance of the independent element is recognised throughout the Report of the Royal Commission, but see especially paragraphs 10.14 to 10.18. Back

47   This figure excludes 12 members who are on leave of absence and three (the Archbishop of Canterbury, the Bishop of Sheffield and the Duke of Norfolk) who have not yet received a writ of summons. Back

48   The term derives from the cross benches where peers who are not members of a political party traditionally sit. But for reasons of space many Crossbenchers sit on nearby benches. Back

49   House of Lords Official Report, 29 July 1999, columns 1677-86. The Group has its own website http://www.crossbenchpeers.org.uk Back

50   A further 142 votes were cast by bishops and 216 votes by peers with no affiliation. Back

51   The bishops are the exception: on retirement they cease to be members. Back

52   The Commons Public Administration Committee Report (paragraph 49) suggests an independent quota of 20 per cent of the reformed House. Back

53   The Royal Commission Report identifies among other types of expertise that of Members with experience of constitutional matters and human rights issues (paragraphs 10.19 and 10.20). Back

54   See paragraph 16 above. Back