House of Lords (Peerage Nominations) Bill [HL]

Baroness Finn Excerpts

Friday 14th March 2025 Lords Chamber

[Baroness Finn (Con)]

My Lords, I congratulate my noble friend Lord Norton of Louth on securing the Second Reading of his Bill and thank him very much for setting out his arguments with such clarity. I also congratulate the noble Baroness, Lady Mattinson, on her interesting and informative maiden speech. I wholeheartedly agree with her that we should promote the excellent work of your Lordships’ House.

I think we can all agree that we want a House of Lords that serves with integrity and commands public trust, and an appointments process that preserves the best of our traditions while adapting to the demands of modern democracy. The House of Lords Appointments Commission, HOLAC, currently provides a non-statutory safeguard within the process for appointments to this House. It has a clear but limited role: to recommend non-party-political Members for the Cross Benches, ensuring that this House benefits from independent expertise; and to provide vetting advice on nominations for life peerages. Crucially, its recommendations are advisory and do not bind a Prime Minister.

A number of noble Lords have emphasised the modest nature of the changes in my noble friend’s Bill, but it proposes significant changes to the powers and operation of HOLAC, including making its recommendations binding and placing it on a statutory basis. It also places greater powers of nomination to this unelected Chamber in the hands of an unelected committee, as my noble friend Lord Leigh so effectively highlighted, as well as putting de facto limits on the number of Peers that can be created. Although I deeply respect my noble friend’s intentions, I must express my concerns regarding the direction of travel that most of these proposals suggest.

The Bill would establish HOLAC on a statutory basis and strengthen the commission’s role in the appointments process. The aim—to secure greater legitimacy and transparency for HOLAC—is honourable. The effect, however, would be disastrous. Placing HOLAC on a statutory footing would not clarify its role; it would fundamentally alter it. Legislation would create a legal framework against which HOLAC’s decisions could be formally challenged in court, opening the door for both the malicious and the litigious to claim that it had failed to fulfil its legal duties. These concerns have been raised previously by my noble friend Lord Howard of Lympne, who has served on the commission, and by the noble Lord, Lord Kakkar, a distinguished former chairman.

Instead of providing independent advice to the Prime Minister, HOLAC would become a body subject to judicial review, forced to justify its reasoning in court, constrained by legal precedent and bound to operate not based on judgment but within the narrow confines of justiciability. Candidates not recommended for appointment as Cross-Bench Peers could contest the basis on which they were excluded. Those who failed the conspicuous merit test, which is based on judgment rather than law, could argue that it had been misapplied. The Prime Minister’s discretion, exercised on HOLAC’s advice, would be second-guessed not in this House but in the courts.

I appreciate that Clause 10 seeks to make the commission’s recommendations non-justiciable, but the courts have shown increased willingness to interpret and disapply ouster clauses, particularly where fundamental principles of legality and procedural fairness are at stake. I share my noble friend Lord Jackson’s concerns on this point. The courts should have no role in determining the membership of your Lordships’ House. That would run contrary to the principle of a separation of powers.

Clause 2 would strengthen the commission’s role in the appointments process in two key respects. First, the Prime Minister would be required to refer the name of an individual to the commission before recommending them for a life peerage. Secondly, it would require the Prime Minister to wait until the commission had advised on whether a nominated individual met specific criteria before recommending them to the Crown, in effet, giving it a veto over nominations. This would represent a profound constitutional change. The Prime Minister—the only person in this process with a democratic mandate —would be restricted in their ability to recommend life peerages and the power would be vested in an unelected and ultimately unaccountable body.

The Prime Minister does not act alone. HOLAC already plays an important advisory role, scrutinising appointments and applying the propriety test, but, crucially, the Prime Minister makes the final decision. That balance matters. If HOLAC gets it wrong—if it misjudges a candidate or applies the conspicuous merit test too narrowly or loosely—the Prime Minister can correct it. If the Prime Minister gets it wrong, he or she faces scrutiny, challenge and, ultimately, the judgment of the electorate. This system holds both in check. If the Prime Minister were stripped of that role, HOLAC’s decisions would become final. There would be no backstop, political oversight or democratic accountability. More than that, it would break a fundamental constitutional principle, as the noble Lord, Lord Butler, emphasised so effectively earlier this week. The Prime Minister is the monarch’s chief adviser; it is not for an unelected commission to take on that role—a point reinforced very eloquently by my noble friend Lord Sherbourne.

Appointments to this House must be made by those who answer to the people, not a body with no democratic mandate, no political accountability and no direct link to the people. The principal criteria for appointing new Peers in Clause 7 of the Bill are

“conspicuous merit, and a willingness and capacity to contribute to the work of the House of Lords”.

While I understand the intention behind this, I struggle to see how one could determine legally what constitutes conspicuous merit and how contribution would be measured. We have endured a number of debates on that very issue this week. These are by their very nature subjective judgments and in a democracy such judgments should ultimately rest with those who are accountable to the people, rather than with those who are accountable to no one.

These amendments do not simply tweak the appointments process. They fundamentally recast the role of the House of Lords Appointments Commission. HOLAC was created as an advisory committee, to advise, not command. To make its recommendations binding is to transform it from a source of counsel to the ultimate arbiter of membership of your Lordships’ House. It would no longer be a check but a gatekeeper. This Bill claims to fortify the appointments process by placing HOLAC on a statutory footing, yet at the same time it strips away one of the most fundamental principles of good governance: accountability. It grants HOLAC the power to block nominations for two years but then shields its decisions from judicial review.

This is not some dry technicality. It is a profound shift in constitutional authority. At present, the system balances expert scrutiny with democratic accountability. HOLAC advises, the Prime Minister decides. If a Prime Minister presses her head against its recommendation, the commission ensures transparency by informing Parliament. The check is there, the scrutiny is real. Crucially, it is the Prime Minister, not an unelected committee, who must justify their judgment to the country.

HOLAC plays an important role in safeguarding propriety and ensuring that this House retains, and is seen to retain, its reputation for expertise and integrity. I am sure that the Prime Minister, like his predecessors, will continue to place great weight on the commission’s careful and considered advice. I also commend the Government’s decision to introduce a requirement to provide citations for all new appointments to your Lordships’ House.

As my noble friends Lord Hannan of Kingsclere and Lord Jackson of Peterborough made very clear, no advisory body is truly neutral and objectivity is hard to achieve. HOLAC is no exception. It offers judgment, not infallibility. Expanding its powers risks creating a system which is neither accountable nor impartial. We must be wary of trading one form of discretion for another, especially when it moves further from democratic oversight. The balance that we have is not perfect, but it preserves scrutiny and responsibility in a way that reinforces rather than undermines the legitimacy of this House.