Prime Ministerial Appointment of Crossbenchers – UK Constitutional Law Association

Among the many questions raised by the resignation of the Archbishop of Canterbury in November 2024, the peerage which has customarily been awarded by the Prime Minister hangs in the balance. The Prime Minister enjoys an unlimited discretion to appoint new peers, and since the Life Peerages Act 1958 has granted a life peerage on retirement from certain public offices, the Archbishop of Canterbury among them. Every Prime Minister in the 21st century has exercised their significant power of patronage in relation to these office holders, who join the Crossbenches of the House of Lords. When the House of Lords Appointments Commission (HOLAC) was created in 2000, the understanding was that in future, it would be responsible for the majority of nominations to the Crossbenches. However, subsequent Prime Ministers have retained responsibility for these appointments and stretched the category beyond public servants altogether. As a result, the broad powers accorded to the Prime Minister have resulted in an irregular appointments process, one that undermines HOLAC and the integrity of the second chamber itself. This post charts these appointments from Tony Blair onwards and the incremental erosion of HOLAC’s role. In the context of widespread concern about the size of the House, I suggest that Prime Ministerial appointment of Crossbenchers should cease altogether, with responsibility delegated to HOLAC.

The 2003 white paper Constitutional Reform: Next Steps for the House of Lords identified five offices that customarily received the life peerage: the Archbishops of Canterbury and York, the Cabinet Secretary, the Queen’s Private Secretary, and the Chief of the Defence Staff. It proposed a cap of “up to five direct Ministerial appointments per Parliament for the Prime Minister” on that basis.

However, since 1958, this category has in fact been wider. In the 20th century, it also included: the Governor of the Bank of England, Master of the Rolls, Permanent Under-Secretary of State for Foreign Affairs, Speaker of the House of Commons, and the Lord Chief Justice (the latter receiving a life peerage upon appointment, rather than retirement). The category continued to expand: in 1999, the Commissioner of the Metropolitan Police was added to this list.

These office holders have all joined the Crossbenches. As the analysis of Professor Meg Russell and Maria Sciara shows, the Crossbenchers are a varied group, whose influence increased after the partial removal of hereditary peers in 1999. The Crossbenchers have their own organisation and ethos, with members subscribing to a code of independence.

The House of Lords Appointments Commission (HOLAC) was created in 2000 under Prime Minister Tony Blair. HOLAC lacks any power of direct appointment, and instead relies upon the Prime Minister to decide the number and timing of appointments made available to it each year. In contrast to the wide-ranging powers of the Prime Minister, HOLAC assesses nominations against published criteria, including the ability to make an effective and significant contribution to the work of the House and commitment to the principles and highest standards of public life. It invited applications from the public, and with much fanfare, the first 15 of these peers were appointed in 2001.

Tony Blair continued to make appointments of distinguished public servants even after the creation of HOLAC, retaining the power to directly appoint life peers on the one hand, and to invite nominations from HOLAC on the other. These appointments may have been made on the understanding that such peerages had become customary, and it might therefore be invidious for them to apply to HOLAC in a competitive process. In 2005, Blair formalised this arrangement in a written statement to the House of Commons, in which he said:

The House of Lords Appointments Commission is responsible for recommending non-party-political appointments to the House of Lords. However, I continue to nominate direct to Her Majesty the Queen a limited number of distinguished public servants on retirement. I have decided that the number of appointments covered under this arrangement will not exceed ten in any one Parliament.

A fundamental tension ensued: if all such office holders could customarily expect a peerage, there would be little or no room for any Crossbenchers nominated by HOLAC. Since its inception, the number of peers nominated by HOLAC has decreased from the dizzy heights of 15 peers in 2001, to an average of just 2.65 per year in the years 2002 to 2024. Figure 1 shows a sharp decline in the number of peers nominated by HOLAC after 2010, matched by a dramatic rise in the number of Crossbenchers appointed by the Prime Minister. If we divide the 24 years charted by Figure 1 into two periods, in the first 12 years (2001-2012) the ratio of HOLAC to Prime Ministerial appointments was three to one (61:21); in the next 12 years (2013-2024) that ratio was reversed, with just 15 HOLAC appointments against 39 appointments by the Prime Minister. In the years 2014, 2016, 2017, 2019, 2020 and 2023, there were no appointments made by HOLAC at all.

Figure 1 – Crossbench nominations by HOLAC and the Prime Minister per year

Source: House of Lords Library, House of Lords Data Dashboard: Peerage Creations Data, (10 July 2024)

While the new number of ten appointments per parliament announced by Tony Blair became settled, the group of “distinguished public servants” continued to widen. The Chief Executive of NHS England joined the list, with the appointment of Sir Nigel Crisp in 2006. Richard Harries, Bishop of Oxford, also fell outside of previously recognised offices.

Gordon Brown (Prime Minister from 2007 to 2010) kept within the limits of the existing categories, with equal restraint in terms of numbers. At the start of his premiership, he nominated one person each year: the Private Secretary to the Sovereign in 2007, and the Lord Chief Justice in 2008. He appointed a total of four members who went on to join the Crossbenches, all of them in the established categories.

Despite this exercise of restraint, the underlying tension remained. In two subsequent white papers, the question was raised whether “this practice should continue in a reformed house”, or should cease altogether.

In a meeting of the Lords Constitution Committee in March 2010, the chair of HOLAC Lord Jay described the practice in the following terms:

[A]n agreement hitherto that there will be what is called the Prime Minister’s List, which is to allow […] ten appointments over a period of Parliament—for the Prime Minister himself to appoint distinguished retired public servants, whether they are civil servants or whether they are military, et cetera.

In response to the question of whether such appointments should cease, he expressed his reservations about the arrangement: “I think myself that the time for that may have passed but that is going to be a matter for the Prime Minister of the day.”

A critical juncture

David Cameron’s premiership marked a point of departure in several respects: more life peers were appointed by him on average per year than by any other Prime Minister. With the exception of the Chief of General Staff Sir Richard Dannatt, who was nominated for a political peerage but chose to sit on the Crossbenches after controversy, the first of David Cameron’s appointments followed established precedent. Then, in June 2014, David Cameron explicitly extended the criteria of the Prime Minister’s List, to include:

a range of individuals with a proven track record of public service, not solely public servants on retirement.

This was followed by four nominations: Sir Jonathan Evans (former Director General of MI5), Sir Robert Rogers (former Clerk of the House of Commons), Andrew Green and Professor Alison Wolf. The first two were distinguished retired public servants, but Alison Wolf was an academic economist whose public service had been advisory. It was Andrew Green’s nomination that proved the most controversial: a former diplomat who had ended his career as Ambassador to Saudi Arabia, Green owed his appointment to being the founder and chairman of MigrationWatch UK. The appointment was widely seen as an effort to appease the growing popularity of UKIP. A Guardian editorial condemned the move as “a power-grab by David Cameron, which degrades the House of Lords”, while Lady Royall accused David Cameron of “desperation in [the] face of UKIP.”

With this nomination of Sir Jonathan Evans, the Director General of MI5 became a customary Prime Ministerial appointment. Here was another example of the displacement of HOLAC: Evans’ predecessor, Dame Eliza Manningham-Buller, had previously been nominated by HOLAC in 2008. His successor, Sir Andrew Parker, was then nominated directly by Prime Minister Boris Johnson in 2021.

David Cameron had declared an intention to uphold the numerical limit set by Tony Blair, holding in 2014 that: “the number of appointments covered under this arrangement will remain unchanged at a maximum of ten in any one Parliament”. By the end of his first parliament, however, David Cameron had exceeded this, with a total of 13 of these appointments.

Following the establishment of the Lord Speaker’s Committee on the Size of the House in 2016, and the publication of their first report in 2017, the premiership of Theresa May (2016 to 2019) seemed to provide some respite. She expressed her intention to exercise “restraint” in a letter to Lord Speaker Norman Fowler, and proclaimed that there should be “no automatic entitlement to a peerage for any holder of high office in public life.” She appointed seven people who went on to serve on the Crossbenches, all of them within previously established categories. However, for her resignation honours, Theresa May named five additional peers who joined the Crossbenches, none of them from the customary offices. This brought her total number of appointments up to 12 in only two years.

Boris Johnson (Prime Minister from 2019 to 2022) remained within the numerical limit of ten in one parliament, but went well beyond distinguished public servants in terms of those appointed. His first nomination was orthodox enough, the (prematurely) retired Cabinet Secretary Sir Mark Sedwill. However, the nominations that followed included the cricketer Sir Ian Botham, reportedly rewarding his support for Brexit, and the Russian-British businessman Evgeny Lebedev. In 2020, Johnson was criticised for failing to give an “automatic peerage” to Archbishop of York John Sentamu on his retirement. The initial reason given for this was the size of the House of Lords, but following controversy and accusations of institutional prejudice, Sentamu was duly nominated in the political honours list that followed.

HOLAC has a secondary role in vetting the nominations of the Prime Minister for propriety, but the Prime Minister is under no obligation to accept its recommendations. In a further blow to HOLAC, whose advice and final recommendation had been accepted by every previous Prime Minister, Boris Johnson overruled its findings in 2022 with his appointment of Peter Cruddas. By the end of his premiership, Boris Johnson had appointed more Crossbench peers outside of established categories than any of his predecessors.

During the remainder of the 2019-24 Parliament, Liz Truss and Rishi Sunak appointed a total of six peers who went on to serve on the Crossbenches. Only half of them were in the established categories: the Chief of Defence Staff, the Lady Chief Justice, and the Private Secretary to the Sovereign.

A report by the Lord Speaker’s Committee on the Size of the House of Lords in July 2023 outlined the damage that had been done. It described the system for appointing Crossbench peers as “one of the most distinct and valuable elements of the House”, which is “now a muddle.” It reiterated that the system introduced by Tony Blair had been “HOLAC appointing most of the Crossbench peers and the Prime Minister making up to 10 non-HOLAC Crossbench appointments per parliament.” It concluded, “[t]his is no longer observed.”

In its 2023 Annual Report, and with no appointments made that year, HOLAC appealed for “the opportunity to make further appointments on a regular basis to address expertise gaps, as well as to improve the overall diversity of the House.” While HOLAC’s recommendations are made solely on the basis of merit, it takes into account: “the impact of an individual’s nomination on the composition and balance of the House as a whole” with regard to factors including “gender, age, ethnic background and geographical representation.” The Prime Minister is bound by no such criteria, and since HOLAC’s creation, appointments by the Prime Minister of life peers who joined the Crossbenches have been 84% male.

In March 2024, the outgoing chair of HOLAC Lord Bew reflected that during his five-year chairmanship HOLAC had appointed just seven Crossbenchers. A further 30 Crossbenchers had been appointed directly by the Prime Minister in “the special category of distinguished individuals.” He observed that: “[t]his has led to a considerable swelling of the House of Lords in recent years.”

The erosion of the system and potential reform

In 2003, only five office holders were noted as receiving a customary peerage on retirement. There now appear to be 14 offices which come with an expectation of the holder receiving a life peerage on retirement or appointment, and further Prime Ministerial discretion to appoint those “with a proven track record of public service”. Although David Cameron expressed an intention to maintain the maximum number of 10 per parliament laid down by Tony Blair, neither he, nor his two immediate successors, honoured this.

Holders of these 14 offices have received 87 life peerages since 1958, although there have been exceptions in a number of these categories since 1958: see Figure 2.

Figure 2 – Crossbench appointments within these offices 1958-2024

The erosion of this system was precipitated by David Cameron’s extension of the criteria in 2014, and the appointment of Andrew Green. Green had, at least, been a public servant. More recently, Boris Johnson abandoned any notion of public service being a requirement.

One possible solution would be for a much more limited set of offices to automatically lead to a peerage. The Prime Minister could retain the discretion to appoint a smaller number of office holders on retirement, with the others applying through HOLAC. Based simply on past precedent, Figure 2 suggests that office holders who could expect appointment to the Lords on retirement might be the Archbishops of Canterbury and York, the Cabinet Secretary, and the Private Secretary to the Sovereign, with the Lord Chief Justice and President of the Supreme Court continuing to receive a peerage on appointment. With Justin Welby’s resignation in November 2024, following controversy arising from his handling of historic abuse by John Smyth, he may soon be the first Archbishop of Canterbury not to receive a life peerage in nearly 70 years. It should also be noted that in the history of these six offices, only one has been held by a woman: the current Lady Chief Justice, Dame Sue Carr. These seven office holders have received 34 life peerages since 1958. Readers can compile their own lists of those offices which should automatically lead to appointment to the Lords, but any list runs a similar risk of ossification.

Conclusion

It is proposed that HOLAC should assume total responsibility for all Crossbench appointments. These appointments are made via a process of open competition, considering the merit of the individual and their likely contribution to the work of the House. Distinguished individuals in the recognised categories of public servants would be able to apply and some would meet the criteria, but HOLAC could be both more selective and more systematic. For example, HOLAC might conclude that the House of Lords has enough defence experts in terms of conventional warfare, and that in future they should be seeking out experts in cyber warfare (such as the Director of GCHQ), or in artificial intelligence. This option would restore HOLAC’s original purpose, and provide accountability and structure to the appointments process more broadly.

In the past, the award of a peerage was seen as an honour as much as a job. HOLAC was intended to change that, with its more professional and systematic approach to recruiting the Crossbenchers, taking into account the range of expertise and balance of the House as a whole. Prime Ministerial appointments have increasingly usurped one of the essential functions of HOLAC’s creation. For the role of HOLAC to be preserved, Prime Ministerial patronage must be restrained.

The author would like to offer thanks to The Constitution Unit, UCL and to Professor Robert Hazell and Professor Meg Russell in particular, for their generosity and insight.

Alyssa Nathanson-Tanner, Judicial Assistant at the Court of Appeal and former research volunteer at The Constitution Unit, University College London

(Suggested citation: A. Nathanson-Tanner, ‘The Irresistible Temptations of Patronage: Prime Ministerial Appointment of Crossbenchers’, U.K. Const. L. Blog (21st January 2025) (available at https://ukconstitutionallaw.org/))