House of Lords (Peerage Nominations) Bill [HL]

Lord Kakkar Excerpts

2nd reading
Friday 18th November 2022 Lords Chamber

[Lord Kakkar (CB)]

My Lords, I join in thanking the noble Lord, Lord Norton of Louth, for the very thoughtful way in which he introduced his Private Member’s Bill and declare my interest as a former chairman of the House of Lords Appointments Commission between 2013 and 2018 and as the current chairman of the Judicial Appointments Commission, which is a statutory body. It has already been recognised by many noble Lords in the debate that there is growing anxiety about appointments to your Lordships’ House, both about the number of appointments being made and the nature of those appointments.

HOLAC, as we have heard, is an advisory body to the Prime Minister but makes a determination of nominations it receives, either from the public or from the political party leaders in the case of political nominations, in two ways: through the assessment of individual propriety; and through a determination of suitability. Propriety tends to be the easier of the two, because it is more objective. The determination of suitability is more subjective. In the case of independent Cross-Bench Peer nominations, that determination of suitability is made using publicly published criteria, available on the commission’s website, used at the time both of sifting nominations and then, for those candidates who are called for interview, through the interview process. For nominations received for political Peers, that determination of suitability is not made by a single individual or body but by the individual political party leaders, and there is an inconsistency in the way the determination of suitability has been made.

My commission suggested to Prime Ministers and party leaders that the assessment of suitability should be made using the criteria that HOLAC uses for the determination of suitability of Cross-Bench nominations. The current commission has suggested that the application of the Nolan principles and their assessment be the basis for determination of suitability. If no consensus can be achieved on that, it is only right to consider the provisions in this Bill for the establishment of a statutory commission that will be able then to apply the criteria and the determination of suitability consistently across all nominations for appointment to your Lordships’ House, be it those received by the general public or those received by political party leaders, and put to the Prime Minister, who ultimately has the responsibility to advise the sovereign on these matters.

However, I think that in Committee we must consider a particular problem with putting the House of Lords Appointments Commission on a statutory basis; that is, the potential risk that decisions that HOLAC makes will then be subject to judicial review. There is an increased risk that they become justiciable—this is in fact our experience at the Judicial Appointments Commission. That would potentially leave the House of Lords Appointments Commission in a position where nominations are made and, indeed, accepted, and then challenged by judicial review. If that process turned out to be successful, we would have a very difficult situation where someone might have already been appointed and that appointment is found wanting through our legal system.

Beyond that, we would have a system where the judiciary became potentially much more deeply involved in appointments to your Lordships’ House. That would run contrary to the principle that has been established where we have a separation of powers, and it could become a regular matter that judges had a role in appointments to your Lordships’ House. That is not to say that these matters cannot be addressed in some way in Committee, but they are important issues that need to be addressed because, ultimately, the current appointments process is doing the best that it can protect the reputation of your Lordships’ House and, in so doing, protect the reputation of Parliament more generally. Of course, in providing advice to a Prime Minister, it also helps to protect the Prime Minister himself or herself and, indeed, protect the sovereign, who is ultimately responsible for accepting and making appointments to your Lordships’ House.