This paper meets the commitment given by the Government in its White Paper on reform of the House of Lords "The House of Lords - Completing the Reform" (Cm 5291), at paragraph 6, that further papers would be produced providing more analysis of the issues.
Further copies of this Report may be obtained from:
The House of Lords Reform Team
The Lord Chancellor's Department
Room 815
Millbank Tower
21-24 Millbank
London
SW1P 4QP
Relevant paragraphs of the White Paper: 3-6
Reform of the House of Lords was a continuing theme through the twentieth century. Key milestones were
|
The need to reform the composition of the House of Lords was a continuing theme throughout the twentieth century. As noted in the Government's previous White Paper Modernising Parliament - Reforming the House of Lords (Cm 4183), there were three significant cross-party attempts, following the 1911 Parliament Act, to produce an agreed reform. These were the Bryce Commission Report in 1918; the Interparty Conference of 1947; and the Interparty Conference of 1967-68. The proposals of the first were never put to Parliament. The discussion of the second broke down over the question of the Lords' powers. The Government did introduce a Bill largely based on the output of the third, but that failed to complete its passage through the Commons (although the accompanying White Paper was approved by both the Lords and the Commons). Such reform as was introduced (life peers in 1958 and allowing women hereditary peers to sit and ending the Scottish representative peerage system in 1963) was introduced unilaterally.
Because of the failure of attempts at comprehensive reform, the House of Lords arrived at the verge of the twenty-first century still dominated, numerically and in its ethos, by the hereditary peerage. In May 1997 hereditary peers constituted nearly 2/3rd of the total membership of the House; over 2/3rd of the Conservatives' representation, 2/5th of the Liberal Democrats' and nearly 2/3rd of the cross-benchers. However, only 15 out of 120 Labour members were hereditary peers.
It was clearly intolerable that one House of Parliament should be so dominated by those whose sole right to be there was because of a privilege conferred on an ancestor. In addition, the political make-up of the House was, as a result of the presence of the hereditary peers, so unbalanced that it was quite impervious to any swings in political opinion in the country as a whole. The presence of the hereditary peers also made it impossible that the House of Lords would ever become representative of the country as a whole. To take only the most obvious example, only 0.5% of their number were women.
It was a clear commitment of the incoming Labour Government in 1997 to put an end to this state of affairs. This was to be the first stage of a reform process, of which the White Paper Completing the Reform sets out proposals and options for the second stage.
The House of Lords Act 1999
The Government legislated in the House of Lords Act 1999 to remove the right to be a member of the House of Lords by virtue of a hereditary peerage. As a temporary, transitional measure, 92 hereditary peers were excepted from the effect of this Act. 15 of them were chosen by the House as a whole to be available to serve as Deputy Speakers. 75 were chosen by their party hereditary peers in proportion to their parties' share of the hereditary peers. The remaining 2 are holders of hereditary offices. This transitional arrangement will be terminated by the Bill to give effect to the present proposals.
The Government's decision to proceed with reform in stages meant that they succeeded without damage to the legislative programme in their Manifesto, where earlier attempts to do the job in one go had failed. Despite general agreement that the hereditary basis for the House of Lords could no longer be justified, attempts to remove it had always foundered because of disagreement about what should replace it. Also, the fact that the question of the future of the hereditary peers became caught up in longer-term proposals for reform tended to colour and distort that debate. By dealing separately with the question, the Government has ensured that the issue of principle was considered and resolved on its merits, with a temporary right to remain conceded to 92 hereditary peers. The Government has equally ensured that proposals for the next stage of reform will also be considered and resolved on their merits, looking to the future not the past.
The Royal Commission
As part of its two-stage reform process, the Government established in January 1999 a Royal Commission, chaired by Lord Wakeham, with the following terms of reference:
"Having regard to the need to maintain the position of the House of Commons as the pre-eminent chamber of Parliament and taking particular account of the present nature of the constitutional settlement, including the newly devolved institutions, the impact of the Human Rights Act and developing relations with the European Union:
to consider and make recommendations on the role and functions of a second chamber; and
to make recommendations on the method or combination of methods of composition required to constitute a second chamber fit for that role and those functions
To report by 31 December 1999."
The Royal Commission reported in December 1999 and their Report was published in January 2000.
In its 2001 Manifesto, the Government said "We have given our support to the report and conclusions of the Wakeham Commission, and will seek to implement them in the most effective way possible." The proposals in Completing the Reform constitute the Government's response to the Royal Commission's recommendations and its fulfilment of its electoral mandate.
Relevant paragraphs of the White Paper: 13-18
|
Parliament is the sovereign body of the UK constitution. Within Parliament, primacy now clearly rests with the House of Commons. Governments take their authority from the support of the House of Commons, as the representatives of the people. This is clear and it is democratic. It is essential that reform of the House of Lords does not obscure or undermine this basic principle of accountability. |
Parliament, consisting of the Monarch, the Lords and the Commons, is the sovereign body of the UK constitution. Government in the UK rests, broadly speaking, on the basis of the Crown in Parliament. The classic expression of parliamentary sovereignty is that by Professor Dicey, writing at the end of the nineteenth century
"the principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament"
It is generally accepted that Dicey's description of what he called the 'English constitution' applied equally to the UK constitution. It remains a true description. Even if Parliament should agree to make itself subordinate to some other jurisdiction, it remains open to it to resume its sovereignty at any time. It therefore remains the sovereign body of the constitution.
It has been for centuries the convention in the UK that the Government is to be part of, and not separate from, Parliament. It is the composition of the House of Commons which now determines who forms the government. The Sovereign's ministers were expected to be members of one or other House of Parliament, although there is even now no statutory requirement that they should be. There are two main reasons for this convention. The most important is that it is Parliament which holds the Government directly to account. The second is that it enables Government to explain and defend its policies directly to Parliament. At times in the past, the House of Commons has been concerned that having too many Ministers among its ranks would compromise its independence and reduce its ability to hold the Government to account. It was only in 1926 that the holders of certain offices ceased to have to offer themselves for re-election on appointment. A vestige of this attitude remains in the statutory restriction that no more than 95 Ministers may be members of the House of Commons.
The UK system is therefore quite different from the US one, where the executive President and the two Houses of Congress are elected separately and might, or might not, be dominated by the same party. In the US, moreover, the Government is then appointed by the President and its members are not members of either the Senate or the House of Representatives. In the UK system, there is only one national election : to the House of Commons. The results of that election determine not only the composition of the House, but who will form the Government. This is the bedrock of our constitution. Parliament is sovereign; the make up of the House of Commons determines who should form the Government; and retention of the confidence of the House of Commons is essential for the continuance of any government.
In the Government's view, this has profound implications for what is an acceptable role, and position, for the second chamber.
The Government believes that the Westminster Parliament should continue to be bi-cameral. This is the pattern of most large Western democracies. It is only the smaller, homogenous states which have been able to dispense with their second chambers. Otherwise, even unitary states like France, Italy and Japan continue to have second chambers. In federal states the function of the second chamber is often distinctive, most notably to represent the constituent parts in the national parliament. Germany recognises this by having members of the Länder Governments sit in the second chamber. The US recognises it by having the same number of Senators from each State, regardless of its size. The UK is, and will remain, a unitary state. The devolution settlement has not set up any sort of federal system. The UK remains one country with one sovereign national parliament. This has profound implications for the proper relationship between the House of Commons and the second chamber.
The Government is clear that there must be a differentiation between the roles of the second chamber and the House of Commons and their powers over the Government. Even when the formal powers of each House are little different, as is presently the case, there must be a clear hierarchy. Anything else would lead only to confusion or gridlock.
In the UK system, the pre-eminence belongs to the House of Commons. The process whereby it has acquired that pre-eminence has been one of long and complex evolution. It rests, however, on two clear factors. First, as the elected chamber its members are the representatives of the people. It has always had that character, although its importance when determining the relative importance of the two Houses has been immeasurably increased over the past 170 years with the gradual introduction of universal adult suffrage. Second, and growing out of the representative role, is its unique power to grant or withhold supply, which has been asserted for over 300 years. This is at the root of its ability to uphold or dismiss the Government. Without the consent of the House of Commons the Government cannot function. Government expenditure must be approved by those who have the power not just to hold the Government to account, but to withdraw their support so that the Government cannot govern. Conversely, it is natural that the House of Lords, which does not have the power to grant or withhold supply, should have less power over the government.
The House of Commons has thus long since been established as the pre-eminent constitutional authority within the UK. The government is formed by the party which can command the support of the House of Commons. A government which loses the support of the people's representatives in the Commons cannot remain in office. General Elections are contests between political parties vying for supremacy in the House of Commons. The party which secures a majority has the right to form a government and, subject to sustaining the confidence of the House, to carry through the programme set out in its election manifesto. Ministers are continuously accountable to the House of Commons through debates and votes, a process formalised and fortified by the role of the non-government parties in forming an Opposition, led by the largest non-government party occupying the position of Official Opposition. Determined largely by convention, Britain's constitutional practice is sufficiently flexible to accommodate alternative arrangements, including coalition governments formed by the major political parties; but these have occurred only in exceptional circumstances (including two world wars), or minority governments which have been able to command the continued confidence of the House of Commons. Even during formal coalition governments, the House of Commons has continued to perform its functions of legitimising the government, enacting legislation and holding ministers to account.
This constitutional framework, founded on the supremacy of the House of Commons, has provided Britain with effective democratic government and accountability for more than a century, and few would wish to change it. As the Royal Commission emphasised, "The House of Commons, as the principal political forum, should have the final say in respect of all major public policy issues" and "it would be wrong to restore the fully bicameral nature of the pre-1911 parliament" (Royal Commission Report, page 33). It is vital that reform of the Lords does not upset this balance, but rather, within this context, that it strengthens the capacity of Parliament to legislate, deliberate and hold the government to account.
It would, of course, be theoretically possible to introduce a system where both Houses had equal powers not just in law, but also in practice. However, if they were both dominated by the same party, there would be no point. If they were dominated by different parties, gridlock would result. The UK system will not function if there are two Houses which can claim equal rights as the representatives of the people to hold the Government to account. If each were wholly elected, it would be difficult to find a rationale which said that for a government to continue in office required the confidence of one House (ie the House of Commons) but not of both Houses.
This is the Royal Commission's starting point. It said, as part of recommendation 2
"the House of Commons, as the principal political forum, should have the final say in respect of all major public policy issues."
It is also the starting point for other recent enquiries into the nature of Parliament. For example, the Constitution Commission chaired by the former Conservative Lord Chancellor, Lord Mackay of Clashfern, at the request of the then Leader of the Conservative party, said
"The House of Commons has in effect become our sovereign institution disposing of both legislative power, and of the decision as to who should wield the Crown prerogative. The time has long gone when the House of Lords possessed the constitutional power to affect the ultimate disposition of those powers. We consider that it is common ground that that settlement should not be changed in any scheme for the reformed second chamber."
This is the Government's starting point. The reformed House of Lords must be properly equipped to take its place in a parliamentary system in which the accountability of the Government to the people clearly lies through the House of Commons.
Relevant paragraphs of the White Paper: 19-24
|
The Government's proposals are: The House of Lords should
It should not
|
In determining the proper powers and composition of the second chamber, it is necessary first to consider its role and functions.
The second chamber is an integral part of Parliament. But it must not be a clone or duplicate of the House of Commons, even though its role will clearly overlap with that of the House of Commons. In particular, it will have a role in the legislative process, which is one of the key functions of Parliament. It will also have a role in holding Ministers to account for the day to day discharge of their functions. The key is to ensure that the contribution it makes in these two areas is distinctive.
The 1999 White Paper
The Government proposed in its 1999 White Paper that the role of the reformed House of Lords should be broadly divided into the following categories : legislative; deliberative; interrogative; and judicial.
The Government's overarching principle was that the second chamber's contribution in this area would continue to be distinctive. Within that, it suggested:
that a reformed House of Lords must have the legitimacy to ensure the value of its recommendations for improvements to legislation, and could offer a distinctive and informed view of the issues before it. This was the key to the reformed second chamber's success;
that the ability of the House of Lords to hold authoritative debates on issues of public importance in an atmosphere less pressured by party political issues than the House of Commons should be sustained;
that the distinctive select committee work of the House of Lords could be continued and even expanded;
that the second chamber would best be able to carry out its function of holding the Ministers to account if it continued to have direct access to them;
changes to the judicial functions of the Lords would involve wider changes to the judicial system. These latter would fall outside the Royal Commission's remit;
the Royal Commission should consider whether there was any way of overcoming the legal and practical difficulties of replicating the Church of England's present position for other religions and denominations.
The Government also asked the Royal Commission to consider whether devolution and recent developments in the European Union suggested that a reformed second chamber should have a particular role in either of those areas.
The Royal Commission's proposals
The Royal Commission felt that the role of the present House of Lords provided a good basis for that of the reformed House. They made the following recommendations in relation to the role and functions of the second chamber:
it should continue to play much the same role in the legislative process as it did now, with similar powers and the ability to make a distinctive contribution;
it should act in some way as a 'constitutional long-stop' and an authoritative select committee should be set up to assist in that function. The House of Lords might also develop a specific interest and expertise in human rights;
Ministers should continue to be drawn from and directly accountable to the House of Lords, but consideration could also be given to increasing the chamber's ability to hold House of Commons' Ministers directly to account;
the opportunities provided by the second chamber for general debate and specialist investigation should be encouraged and developed;
there was no reason why the judicial functions of the House of Lords should not be retained;
there remained a case for the formal representation of organised religion within the House.
On the question of relations with the devolved administrations and the European Union, the Royal Commission concluded that it would not be right for the House of Lords to have any special relationship, so that it became in any sense a 'federal' legislature. Nor should it try to build up a special relationship with the European Parliament.
Finally, the Royal Commission also proposed that the House of Lords should not have any special powers to scrutinise prerogative acts, such as public appointments. They did, however, recommend a specific Treaty scrutiny committee.
The Government's proposals
Legislation
The most important function of a second chamber in a unitary state is as a revising chamber for legislation. The number, size and complexity of Bills has increased significantly in recent decades. Although the House of Commons will retain the pre-eminent authority for the approval of legislation, the Government believes that there should continue to be a two-stage legislative process with Bills examined by differently composed bodies. A second chamber not only provides a longer process of scrutiny of legislation, but offers the opportunity for it to be examined from a different point of view. Moreover, issues are often raised during debate which government needs to take away and consider. The existence of a second chamber enables government to give those issues proper attention, and for the revised proposals to be debated properly by Parliament, taking both time spent in the House of Commons and that taken in the House of Lords. One of the functions of the second chamber should be to enable the House of Commons to do its job more effectively by relieving it of some of the legislative burden.
The contribution that the House of Lords presently makes to this process can be seen from the following figures of the time spent by each House in the consideration of legislation. The Commons still spends longer than the Lords, but the Lords' contribution is substantial.
Two key characteristics of the reformed second chamber should be
To provide a distinctive perspective on legislative proposals, drawing on the expertise and different approach of members recruited because of their particular skills and expertise; and
To undertake detailed scrutiny of legislative proposals, drawing on that broader expertise, which may draw out issues which the Government has not considered in sufficient depth or may even have overlooked.
It should not have the power to veto legislation, other than in the one special case of maximum life of the House of Commons.
Scrutiny
The House of Lords has in recent decades developed a distinctive scrutiny function, complementing the work done in the House of Commons. This is an area where the contribution of the second chamber to Parliament should be encouraged. One of the key functions of the second chamber should be to undertake longer-term investigative work, making use of members' expertise. The work of the EU Committee and the Science and Technology Committee provide an example of the approach the Government has in mind. To keep the second chamber's contribution distinctive, the Government would not want to see it developing a nexus of departmental select committees like those in the Commons. The second chamber is better placed to examine cross-cutting issues. The Government is pleased that the House has already set up the Constitution Committee recommended by the Royal Commission. Depending on the quality of its work, it has the opportunity to establish itself as an authoritative examiner of wider issues, in the same way as the Delegated Powers and Regulatory Reform Committee has done, although it must be recognised that the House of Lords itself has no greater authority to pronounce on constitutional matters than the House of Commons.
The Commons' introduction of separate sittings in Westminster Hall has increased the opportunities for the House of Commons to discuss matters initiated by backbenchers, whether of constituency or wider interest. Nevertheless, there is still a place for 'topical debates' in the second chamber. They should provide an opportunity for acknowledged experts to get together to discuss issues of general concern in a non-partisan atmosphere but where the Government is nonetheless required to listen carefully and respond fully and intelligently to what is said. This is an important part of ensuring that government does not totally dominate the work of Parliament. Again, the composition of the Lords should be framed to ensure that it makes the most of this opportunity.
Holding Ministers to account
The House of Lords also has a role in holding Ministers to account. The Government agrees with the Royal Commission that the second chamber should continue to have direct access to Ministers in order to question them about the work of their departments. This is best done by having Ministers drawn from the membership of the House. As noted by the Royal Commission, second chambers in systems where the executive is drawn from Parliament but where by convention no Departmental Ministers sit, such as Ireland or Canada, find their ability to hold Ministers to account reduced. An arrangement whereby Ministers from the Commons would come and defend the Government on the floor of the House would be less effective because they would not understand the House or perhaps would not take it seriously; and would not have to live with the consequences of either. Moreover, the primary function of the second chamber is to be as part of the legislative process and handling legislation in the second chamber is better done by those with a long-term relationship with it. Informal contacts would also be more difficult if Ministers were not members of the House.
The Government does not agree with the Royal Commission that there need be any changes in the way in which the second chamber can hold Commons Ministers to account. This would have implications for the rights of the House of Commons over their own members. Under SO No138, Members of the House of Commons are given leave to appear before Select Committees of the House of Lords 'if they think fit'. There is no way the Lords Committee can compel attendance. In practice, of course, a Minister accedes to requests to give evidence to a Select Committee. The House of Lords therefore already has considerable access to senior Ministers when it is undertaking a relevant enquiry. An element of compulsion would produce little practical benefit, and might damage relations between the two Houses. It would potentially increase the demands on senior Ministers' time. It would also undermine the position of those junior Ministers who are members of the second chamber, who would no longer be regarded as speaking authoritatively on behalf of their departments.
While the House of Lords should continue to have the function of holding Ministers accountable, it should not in any way share with the House of Commons the function of holding the government collectively to account. This must remain the function of the chamber whose confidence the government must retain to remain in power - the House of Commons.
Does devolution imply a new role for the Lords?
The Government asked the Royal Commission to look especially at the implications of the devolution settlement for the reformed second chamber. It said in its White Paper Modernising Parliament - Reforming the House of Lords that "the second chamber could provide a forum where diversity could find expression and dialogue, and where such expression could work towards strengthening the Union". The idea that the reformed second chamber could become some sort of 'constitutional glue' apparently struck a chord with many of those the Royal Commission consulted.
The second chamber should be a place where the nations and regions feel that they are represented. The Government's proposals are framed to respond to that need. Nevertheless, the Government agrees with the Royal Commission that the House of Lords should not become, in any sense, the 'federal' chamber of Parliament. Devolution has not created any need for one. Westminster, including the House of Commons, is the Union Parliament. MPs for constituencies in the devolved nations still continue to represent their constituents at Westminster. The example of France shows that it is quite possible for the second chamber to represent local communities without in any way straying into federalism. The House of Lords will through its Constitution Committee clearly have a means of reviewing the impact of the devolution settlement and other constitutional changes. However, in the present state of the settlement, it would not be right to ask the House of Lords to develop a special relationship with the devolved institutions, by becoming in effect their 'second chamber'.
New functions?
The reformed second chamber should not take on any specific functions not presently carried out by Parliament at all, for example the scrutiny of public appointments made by the executive under prerogative powers. Such 'confirmation powers' are of course an important function of the US Senate. However, the whole constitutional settlement in the US is quite different from that in the UK. The US needs specific methods of holding the government to account, because the government has a separate mandate independent from that of both Houses of Congress.
The one area where the Royal Commission did recommend an extension of the House of Lords' powers over the use of the prerogative was in the scrutiny of treaties between signature and ratification. This recommendation was addressed to the House itself, not to the Government. The Government notes that the House of Lords has decided not to proceed with this idea for the time being. In the interim, the Government has agreed to proposals from the House of Commons Procedure Committee designed to enhance the ability of that House to undertake such scrutiny.
Relevant paragraphs of the White Paper: 25-34
|
The Government's proposals are :
|
The present position
The powers of the House of Lords are legally virtually identical to those of the House of Commons. They are constrained by legislation (the Parliament Acts); acceptance of Commons financial privilege, and convention (most notably the Salisbury - Addison Convention on the status of Manifesto proposals). The Government would prefer to continue this broad structure for defining the relationship of the authority of the two Houses. The conventions have stood Parliament in good stead for many years, and relationships of this sort are not readily susceptible to legislation, beyond what is already included in the Parliament Acts.
The Parliament Acts
Under the Parliament Acts of 1911 and 1949, if the House of Lords fails in two successive Sessions of Parliament to pass a public Bill first introduced into the Commons, the Bill having been passed by the Commons in the second Session at least 12 months after its first reading in the first Session, and having been sent up to the Lords in each Session at least one month before the end of the Session, the Bill may be presented for Royal Assent at the request of the Commons alone. There are only two types of public Bill to which this does not apply. The Lords retains an absolute veto over any Bill to extend the life of a Parliament. A Bill certified by the Speaker as a Money Bill (that is basically one dealing with measures that raise revenue or authorise expenditure) can be presented for Royal Assent one month after it has first been sent up to the Lords. Six Acts have been passed under the Parliament Acts and in about the same number of cases, a Bill has been reintroduced with the intention of using the Acts if necessary.
Commons Financial Privilege
The House of Commons has formally asserted ever since the seventeenth century the absolute right to have the last word about the amount of money which can be raised by the Exchequer. The Commons grants both Supply and ways and means; the constitutional function of the Lords is to assent to that grant, not to amend or deny it. When a Bill with consequences for the public finances starts in the Lords, a specific amendment is added to it disavowing any intention to breach privilege. Lords' amendments to Bills of 'aids and supplies' (mainly Finance and Consolidated Fund Bills) are always deemed a breach of privilege. The Speaker will draw the Commons' attention to Lords' amendments to other Bills that appear to breach privilege. The Commons may agree formally to waive privilege. If it chooses to assert privilege as a means for rejecting a Lords' amendment, it is very unusual for the Lords to try to persist in its amendment.
The Salisbury-Addison Convention
The House of Lords has long recognised that it ought to be restrained in its use of its legislative powers. The most recent expression of that constraint is that "it would be constitutionally wrong when the country has expressed its view, for this House to oppose proposals which have been definitely put before the electorate". The practical effect of the doctrine is that the House of Lords will not vote against a Manifesto Bill on Second or Third Reading. It is also generally accepted that amendments which clearly violate the principle of a Bill are wrecking amendments which should not, under the Convention, be agreed to.
Statutory Instruments
The House of Lords, like the House of Commons, retains the absolute right to reject Statutory Instruments. It did not exercise the right between 1968 and 2000, during which period it was generally accepted that it would not be appropriate for it to do so. Neither House has the power to amend a Statutory Instrument, which is made by the Minister (or occasionally the Privy Council) and approved by Parliament.
The 1999 White Paper
The 1999 White Paper suggested that the Royal Commission might examine the details of the Lords' powers in a number of areas. These were
the length of time the Lords should be able to delay legislation approved by the House of Commons;
the application of the Parliament Acts to Bills which start in the Lords;
new methods to break deadlock at the end of 'ping pong' (the process where amendments to a Bill pass backwards and forwards between the two Houses at the end of a Bill's passage); and
the House of Lords' powers over secondary legislation.
The Royal Commission's recommendations
This paper looks at the issues examined by the Royal Commission in relation to the Lords' powers which would require legislation to implement.
The Royal Commission recommended that there should be no substantive changes to the Parliament Acts. The only change it recommended was that Bills to amend the Parliament Acts themselves should be added to that category of Bills to which the Parliament Acts did not apply.
On secondary legislation, the Royal Commission recommended that the House of Lords' present power of rejection should be replaced by a power of delay, bringing it into line with their powers over primary legislation.
The Government's Proposals
Primary legislation
The Parliament Acts
The Government does not propose any change to the basic context of the House of Lords' powers over primary legislation as provided in the Parliament Acts. It accepts that the so-called 'suspensory veto' is the best way, in the UK context, of recognising both the House of Lords' right to have its concerns taken seriously and the House of Commons' right to prevail at the end of the day. The Parliament Acts impose considerable inconvenience on the Government, but at the same time ensure that the House of Lords can be overridden.
The Government has considered carefully the Royal Commission's response in the two areas the 1999 White Paper suggested should be looked at : changing the length of the Lords' veto, and applying the Acts to Bills starting in the Lords.
There is certainly room for doubt over the need for both a specified period of delay and a requirement that a Bill should be passed in two successive sessions. Because of the Parliamentary cycle, the twelve months' period of delay adds very little to the Sessional requirement in most sessions. What it does do is to ensure that a Session runs for its normal length before the Parliament Acts can be invoked. On the other hand, it could be argued that a government should be able to determine its own legislative priorities; if it attaches such importance to a particular measure that it is prepared to see other legislation fall through the early termination of a Session, with all the consequences that involves, there is a case for saying that it should be able to do so. Indeed, in the second Session when the Parliament Acts have been invoked, it may do exactly that if it wishes to get the disputed Bill enacted quickly.
Even more of a question mark could be raised over the present requirement that the trigger point for the Parliament Acts' timetable should run from Second Reading in the Commons. The effect of this is that much of the period of 'delay' is illusory, because it is taken up with getting the Bill through the Commons. Moreover, much of the rest of the time will be taken up with the Lords' own consideration of the measure. A more logical arrangement would be to fix the period of delay from a point when the normal consideration of a Bill has been completed, for example Third Reading in the Lords. On the other hand, any trigger point that rests in the hands of the House of Lords runs the risk of never being reached under present arrangements because of the Lords' ability to control their own business. The 1968 Parliament Bill did include measures to alter the trigger point to one which appeared more logical, but they found that it was necessary to hedge this around with a number of conditions to ensure that the House of Lords could not negate the whole procedure by simply failing to make progress with a Bill.
If there were to be a complete change in the way that the relationships between the two Houses were regulated, the Government would certainly want to give serious consideration to this issue and would be unlikely to recommend the continuation of the status quo. However, on balance the Government accepts the Royal Commission's recommendation that the net benefit of any changes to the length and determination of the Lords' power of delay within the present framework does not justify the potentially destabilising effect of unravelling the Parliament Acts. The Government hopes they will continue, in practice, to be needed only rarely.
There is a stronger case to be made for applying the Acts to Bills starting in the House of Lords. Bills at present normally become candidates for use of the Parliament Acts only at the very end of their process, when it becomes clear that amendments insisted on by the Lords are not acceptable to the Commons. At that point, it is immaterial where the Bill started; both Houses have considered it and cannot agree on it. It appears, on the face of it, illogical that Bills may require different treatment depending on the House in which they started. The present arrangements appear an artificial constraint on the management of the legislative programme.
However, such a change would not be straightforward. For example, the provision that the Bill must be sent to the second chamber to consider it only a month before the end of the session would hardly be appropriate if that House were the House of Commons. And what should be the rules about the House of introduction in the second session; would that have to be the House of Lords again? Most telling of all, the change would alter the dynamic of the relationship between the two Houses. It would not be simply a logical adjustment at the end of the process. Instead, it would hand to the House of Lords the power to decide whether a Bill made any progress at all. The Commons is always going to want to send a controversial Bill to the Lords. The Lords, on the other hand, would not have the same incentive to send a controversial Bill to the Commons. If the Commons' view of a Bill was never ascertained, it would be unknown whether the Lords was defying the elected chamber or not.
Such a change would therefore require the complete rewriting of the Parliament Acts. It would require measures to force the House of Lords to send a Bill to the Commons. It would probably require setting out in statute the complete parliamentary legislative process. The Government agrees with the Royal Commission that the disadvantages of such a course outweigh the potential advantages.
The Royal Commission also recommended that a minor change should be made to the Parliament Acts to add Bills amending the Parliament Acts to those over which the Lords retains an absolute veto. The Government does not see the need for this amendment. The effect of the amendment would be to give the House of Lords a veto over their own present powers and the present form of the Parliament Acts. If the Commons insisted on changes to the Parliament Acts which were unacceptable to the country as a whole, it would have to answer for that to the electorate. But there would be no sanction against a veto by the Lords of such changes even when they were desired by the country as a whole The powers of the Lords, in this matter, would therefore effectively become greater than the powers of the Commons.
Secondary legislation
A power of delay for the second chamber
The House of Lords has more power in relation to secondary legislation than it does in relation to Bills, since the Parliament Acts do not apply and therefore the House of Lords can reject all Statutory Instruments. It has a power of veto. This does not seem consistent with a revising chamber. The Royal Commission therefore raised the question about whether this was a power which it would be right for the reformed second chamber to retain.
It could be argued that the correct power for a revising chamber would be one to amend Statutory Instruments. This would bring it more into line with the position in relation to primary legislation. It would not, however, introduce a parallel situation. First, the House of Commons itself has no power to amend secondary legislation. Second, there would be no means of the Commons overriding the Lords if the latter's amendments were unacceptable.
To give the House of Lords a power to amend secondary legislation could not therefore be done without giving the Commons the same power. The whole point of secondary legislation, however, is that it does not have to go through an elaborate Parliamentary procedure. In many cases, it deals with essentially executive acts, where there is no issue of political or parliamentary interest. It is used to keep legislation or administrative regimes up to date with changing circumstances, with no new issues of principle involved. It is appropriate that Parliamentary procedure should take the form of approving, or not, the action of the Minister in making the order.
The Royal Commission said that they could see no case for making it possible to amend Statutory Instruments once they have been formally laid before Parliament. They argued that any comprehensive system for considering detailed amendments to secondary legislation would negate the advantages of it. As well as those set out above, they saw these advantages as allowing Bills to be restricted to their essentials; allowing details of policy to be filled in at a later date; fewer corrective amendments to primary legislation; and greater flexibility within the parent Act to tailor requirements to different circumstances which may apply in particular cases. The Royal Commission argued, on the other hand, that any attempt to limit the scope for amendments in some arbitrary way would be difficult to justify. They thought that greater advance consultation before the Statutory Instrument was presented to Parliament at all was the better approach.
The Government agrees with the Royal Commission that there should not be a general power for Parliament to amend Statutory Instruments.
The Royal Commission proposed, instead of a power of amendment, that the House of Lords should have its power of veto replaced by one of delay. They argued that this would be more in keeping with the second chamber's status. It would also, if used properly, improve the level of scrutiny that it was able to give to Statutory Instruments. Given the considerable growth in recent years in the use of Statutory Instruments, and the likelihood that this growth will continue and even accelerate, the Royal Commission thought it important that the House of Lords should play a significant role in improving Parliamentary scrutiny.
Their detailed proposal is that :
Where the second chamber votes against a draft affirmative Instrument, the draft should nevertheless be deemed to be approved if the House of Commons subsequently gives (or, as the case may be, reaffirms) its approval within three months;
Where the second chamber votes to annul a negative Instrument, the annulment should not take effect for 3 months and could be overridden by a resolution of the House of Commons.
They also proposed that in both cases the relevant Minister should publish an Explanatory Memorandum, giving the second chamber an opportunity to reconsider its position and ensuring that the House of Commons was fully aware of all the issues before deciding its own position. The Royal Commission argued that, taking these proposals together, this would strengthen the House of Lords' influence and its ability to cause the Government and the House of Commons to take its concerns seriously.
There is a powerful case for proceeding as the Royal Commission has proposed. The advantages include :
Such a system would be more consistent with the second chamber's status as a revising and reflective chamber;
the Lords' concerns would be given a proper airing. Both government and the Commons would be obliged to consider them and show that they had done so. However the Lords would not be given the power to overrule the elected authority of either.
the Lords would gain a procedure which it would be acknowledged that they could use with due discretion, unlike the rather contentious status of use of their present ability to reject a Statutory Instrument.
The Government agrees with the Royal Commission that net result would be an increase in the effective voice of the Lords in relation to secondary legislation, even if it is at the expense of an apparent reduction in their nominal powers.
The Government proposal is that, in the future, when the House of Lords votes to reject, or to annul, a Statutory Instrument, the effect will not be to kill the instrument. Instead, the effect will be to suspend the process of its consideration. The Minister will take note of the House of Lords' concerns about the proposals. He will publish an Explanatory Memorandum setting out his response to the Lords' concerns. This might, or might not, be accompanied by a revised draft of the Statutory Instrument.
If the Minister proposes to offer some amendments to try to meet the Lords' concerns, then a revised Instrument will be laid, and the two Houses will consider it as at present. If, however, at any stage the government decides that it does not wish to make amendments to meet the Lords' concerns, the original Instrument will be considered by the Commons alone. If the Commons have already considered the Instrument in the normal course of business, they will be asked to reaffirm their agreement (if it is an affirmative resolution Instrument). If they have not yet considered the Instrument, they will do so for the first time in the light of the Lords' concerns. If, taking account of that and the Government's views, they vote to accept the original Instrument, then it will become law on the basis of approval by the Commons alone.
If the House of Lords votes to annul a negative resolution Instrument which has already come into force, the legislation will provide for the Instrument to remain in force while the Government and Commons consider their response. If the Government decides that it wishes to proceed with the Instrument, as drafted, it will invite the Commons to approve it; that is, for the purposes of this provision, the Instrument will become an affirmative one so far as the Commons are concerned.
Relevant paragraphs of the White Paper: 35-42
|
The Government's principles are :
The Government has asked for comments on its overall package of proposals on composition. |
This chapter looks first at three alternative bases for a second chamber which are most frequently suggested before describing in outline the Government's proposals.
Direct election
It is widely asserted that in the twenty-first century, the only basis for selecting a chamber of Parliament in a democratic society is a form of election. The Government does not accept that for a second chamber in the UK parliamentary system. It is vital to know where true accountability lies. A wholly, or mainly, elected second chamber would undermine that principle unacceptably. The second chamber would claim a separate mandate, and therefore the freedom to block and thwart the work of the Government, if its political balance were different, as would be inevitable with a proportional system for the second chamber. But, if the voting system were the same, this would either duplicate Government dominance or intensify the clash between the mandates claimed by the two Houses.
Would it be possible to legislate for a relationship between two elected Houses which would prevent this situation arising? The Government rejects that view for three reasons.
First, it would be curious to introduce an elected second chamber on the grounds that this was necessary to 'increase its legitimacy' and promptly hedge around its powers so that in practice it could make not effective use of that 'legitimacy'.
Second, the detail needed to accommodate two Houses established on a similar basis would effectively introduce a written constitution. This would be a development quite different from the approach that has served the UK well in the past. It needs to be considered in its own right, not just as an adjunct of House of Lords reform. It would have ramifications far beyond Parliament. For example, it would make the relationship between the two Houses potentially justiciable, with the courts able to start judging Parliamentary procedures and decisions.
Third, even if the statutory position were hedged around, it is likely that the House would continue to claim, if not a mandate of its own, that its election results either weakened or strengthened the existing mandate of the Government. The popular response to elections to local councils, or the European Parliament, which ought to be decided on a completely different basis, so that they become in effect referendums on the performance of the government, reveals just how likely this would be when the elections actually were to the national parliament.
The Government also believes that a wholly or mainly directly elected second chamber would have further disadvantages.
A wholly elected House would make it difficult to have any independent element. Such an element could not be elected, if there was to be any sort of guarantee of its proportion of the House. Yet this is an element of the existing House of Lords to which people attach the highest importance.
Elected politics is becoming increasingly a full-time occupation. Even allowing for the lack of a constituency function for members of the second chamber, the result of moving to a wholly or mainly elected second chamber would be to risk losing the potential the Lords provides to bring to Parliament the expertise and experience of those who are leaders in a wide range of national endeavours, including commerce, the voluntary sector, education, health, the armed forces and the faith communities. Such experience cannot replace or compete with a direct electoral mandate, but it makes a valuable edition to the expertise and competence of Parliament as a whole.
The position of the MP as the representative of his constituents would be undermined. At the moment, the MP is equally the representative of all his constituents, whether or not they voted for him. He will deal with all problems with the same attention, and Ministers in turn will regard all MPs' constituency queries in the same way. If, however, there were a second elected representative, it would be difficult to see that situation continuing, especially if the two representatives were of different parties. The temptation would be for the constituent to go to either, depending on whether he attached more importance to dealing with the party for whom he voted or the party of government. Ministers, in turn, might be tempted for example to deal with the member of the second chamber who was from their party rather than the MP who was from the opposition.
Indirect election
About 30% of second chambers are chosen through a means of indirect election or delegation. Under indirect election, the electorate is limited, usually to those who have themselves been directly elected, but the candidates are not limited to those who are also electors. This is the method used in France and Ireland. Under delegation, not only the electorate but the candidates are confined to the members of particular bodies. This is the method used in Germany. The Government's 1999 White Paper looked at the considerations relevant to such an approach in the UK.
Indirect election
Indirect election is a method with which the UK is unfamiliar. This would not, of itself, rule out its introduction in relation to the House of Lords. The difficulty at present in the UK is identifying a suitable electorate. There is no uniform pattern of either regional or local government. Scotland has an elected Parliament, Wales, Northern Ireland and London elected assemblies. The rest of England does not. Wales and Scotland have unitary systems of local government. England is divided between unitary and tiered areas. The system in Northern Ireland is quite different from that in Great Britain.
If it were desired to introduce an indirect election system for the House of Lords, it would not be possible at present to limit any electoral college to the devolved institutions alone. Quite apart from their current absence in most of England, serious questions would be raised about the extent to which, for example, an 'electorate' of the 25 members of the Greater London Assembly could properly elect the representatives of London, when Scotland, with a lower population, had 129 electors. Nor, at this time, would the regional chambers be an adequate substitute for regional assemblies in England, since their members, even if themselves local councillors, are not elected to that body by the people. So to produce an meaningful electoral college it would be necessary to include the local government tier. The uneven pattern of local government in England, however, would make it difficult to produce a consistent system. Although the Government intends to publish a White Paper taking forward its Manifesto commitment on directly elected regional government in England, this would only be introduced where the people themselves voted for it in a referendum. It is unlikely that there would be full coverage for many years, if ever.
In France the Senate is specifically designated as the representatives of the 'collectivités territoriales'. It is heavily dominated by local considerations, and members of the senate see it as at least as important to represent local interests as to take part in the national legislative process. Not only is the electoral college made up of local councillors, but many of the senators also hold local elected office. Of the 321 senators, 211 hold some other elected office locally or regionally, and several hold more than one. The French system is properly one of indirect election, but the patterns of actual membership bring it close in practice to a system of delegation.
Delegation
Compared to an indirect election system, one of 'delegation' would also have to deal explicitly with the issues raised by a dual mandate. If individuals end up with a dual mandate because they have stood separately for election to different tiers of government, that is a matter for themselves, their electors and their parties to work out. However, an institutionalised delegation system raises questions about the interests of the institution from whom the delegates come. Members of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly have been elected to do a job in those institutions. It would be natural if the institutions were uncomfortable with the idea that their members were sufficiently under-occupied that they could be asked to participate also in the work of the second chamber at Westminster. Although the latter will continue to welcome part-time membership, that does not resolve the problem for the devolved institutions.
The idea of 'delegation' as such would also be a departure from the UK's traditions of Parliamentary representation. Edmund Burke stated this clearly in 1774:
'Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, or local prejudices ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not a member of [Bristol], but he is a member of Parliament.'
Once elected, a member is expected to vote according to his or her own assessment of the issues, taking into account whatever matters he considers relevant. Today, of course, the party's policy on the issue will normally be authoritative. But the member will be expected to take soundings of the views among his constituents, which can be reflected in influencing public policy in more ways than just voting. What, however, the member is emphatically not supposed to do is to seek instructions from either constituents or the constituency party about the way to vote. In the closest example of a delegate body, on the other hand, the German Bundesrat, the element of delegation is so pronounced that its members represent the governments of the Länder, not the Landesrat at all, and cast their votes en bloc.
The experience of the French Senate shows that it is possible to produce an indirect election system which will root members of the second chamber firmly in the regions and local communities. To introduce such a system as part of the initial reform would mean using the local tier of government as the electoral college, not the regional. Even if the constituencies were coterminous with the regions, it is therefore uncertain if a proper regional focus would result. It also shows, however, that local and regional issues would come totally to dominate. If used for the entire chamber, such a system would be unlikely to deliver the broadly based, distinctive and expert membership the Government wants to see in the House of Lords.
Functional constituencies
The idea that the second chamber should be representative of the country's different economic, social and professional groupings, and should not be dominated by politicians and the political parties, has a widespread resonance among the public. This has led many, in turn, to suggest that different economic or professional groups should form 'constituencies' who would nominate, or elect, members of the second chamber.
Despite the apparent popularity of this idea, it does have a number of significant problems:
Which bodies, or professions, or other groupings should have the right to representation? Every list produced varies; there is no consensus even of the type of organisation that should be the foundation, let alone which ones. There would be far more plausible candidates than there is likely to be space. Even so, many people might fall through the net, and feel that they were not represented at all.
How would you decide who should represent each 'constituency'? Many people who advocate this approach assume that the holders of certain offices could be taken to represent the profession, for example the Chairman of the Royal College of Physicians for doctors. There are a number of difficulties with such an approach. First, such office holders often rotate frequently, perhaps annually. That would not be good for the stability of the second chamber. Second, such posts vary enormously in the demands they place on their holders. Some may be purely honorary, in which case their holders might be somewhat disconcerted to find they were expected to take up a part-time post in the House of Lords as a consequence. Others will definitely be full-time, in which case they would be unlikely to be able to find the time to carry out the House of Lords function. If, however, the appointment were not to be 'ex officio', some other method would have to be found. Would that have to be a uniform method imposed on every nominating body, or could each be allowed to work out its own approach? How would the problem of unrepresentative cliques dominating the process be overcome?
If there was to be a system of election, rather than nomination, how would people choose which constituency they wanted to be in? Would they be limited to one only, or would they be able to vote in every constituency for which they were qualified? Even the most committed activists might resent being forced to identify with only one facet of their lives. But the alternative would be to allow people multiple representation, which again is alien to the UK tradition. Even if one genuinely lives in two different places, it is an offence to vote in an election for both.
There would be a significant danger of the representatives being seen as delegates, with attempts to 'mandate' them on how they should vote on individual issues.
Although there are advantages in the idea of a wholly independent body, it is not in fact realistic to suppose that a House of Parliament can be immune from the influence of political parties. At the end of the day, one of its most important functions will be to vote for or against the programme of the Government. It is also as important that the House should be politically representative as in every other way. But the functional constituency approach could not possibly cover this dimension.
The Government's proposals
Taking all these different factors into consideration, the Government has reached similar basic conclusions to those of the Royal Commission. That is, the membership should be largely nominated, but with a number of safeguards to ensure that it cannot be manipulated by the Government of the day. Those safeguards include:
A statutory Appointments Commission. As well as selecting independent members of the House, it would determine the numbers for the political parties and vet their choices for propriety.
A requirement that the representation of the political parties should reflect the votes cast in the preceding general election so far as possible within the constraints of overall size and length of term
A cap on the overall size of the House
Guaranteed numbers or proportion for the independent membership
There should also be an elected element, specifically to represent the nations and the regions.
Relevant paragraphs of the White Paper: 43-61
|
The Government's proposals are :
The Government is seeking views in particular on :
|
The present position
There are no specific provisions to ensure that there is a reasonable geographical spread of representation in the second chamber. This is a matter for the parties and, now, the interim Appointments Commission, to take into account in recommending people for peerages.
The 1999 White Paper
The Government drew attention, in the Royal Commission's terms of reference, to the need to take account of the developing constitutional settlement, which includes an increased emphasis on regional identity as a building block of the UK. It also drew attention to the capacity of elections to ensure representation from all parts of the country.
The Royal Commission's proposals
The Royal Commission recommended that the second chamber should play a valuable role in relation to the nations and regions of the UK whatever pattern of devolution and decentralisation might emerge in future. They therefore recommended that at least a proportion of the members of the second chamber should provide a direct voice for the various nations and regions of the UK. The Commission concluded that only direct election by the regions of such members would work. They did not think this should be done through the existing devolved administrations. They therefore recommended that one of three possible approaches should be taken.
What all had in common was
that the constituencies for the second chamber should be the existing national and regional groupings which also form the constituencies for the European Parliament;
that these should be multi-member constituencies with some form of proportional election;
and that the elections should take place 'in the margins' of another national election.
Under Option A, there would be no separate election to the second chamber at all. Instead, elected members of the second chamber would be in a way 'additional members' to the House of Commons. At each General Election, the parties would publish a list of candidates for the second chamber. The votes of the various parties in all the House of Commons constituencies making up the second chamber constituency would be totalled, and seats assigned to the parties in response to their proportionate share. This process would take place in one-third of constituencies at each General Election after the first. The Royal Commission proposed 65 seats for this system.
Under Option B, a separate election would take place for the second chamber. But, in order to reduce both expense and electoral fatigue, it would be held at the same time as those for the European Parliament, using the same constituencies and the same electoral system (currently a closed list in GB and Single Transferable Vote in Northern Ireland). One-third of constituencies would vote at each election after the first. The Royal Commission proposed 87 seats for this system.
Under Option C, the arrangements would be the same as those for Option B, except that a 'partially-open' list system would be used and one-third of seats in each constituency would be contested at each election. The Royal Commission proposed 195 (65 x 3) seats for this system.
A majority of the Royal Commission was willing to support Option B.
The Government's proposals
Constituencies
It is important not to add unnecessarily to the complexity of the UK's electoral arrangements. The constituencies for the second chamber should be the same as those for the European Parliament. These, at present, are also the same as the economic regions in England, while Scotland, Wales and Northern Ireland each form a single constituency. Using these areas as the basis for the constituencies of the second chamber will help enhance a sense of regional identity. It would both be an unnecessary complication in respect of electoral arrangements, and introduce an element of confusion about the meaning of the regions, to try to devise constituencies on a different basis simply for the second chamber.
Electoral Method
There has, in recent years, been a growth in the number of electoral methods in use in the UK. These changes have been for good reasons, notably to ensure that elections to bodies that do not also determine the national government do reflect the political make-up of their electorate. The Royal Commission believed that the method of election of the regional members of the House of Lords had to be a proportional one. The Government agrees with this. It is vitally important that regional representation should be as representative of the political make-up of the constituencies as possible. For Great Britain, the Government proposes that the electoral method will be by means of a list system. For Northern Ireland, as for most elections there, it will be by Single Transferable Vote.
The GB list system is consistent with the fact that the relationship between the member of the House of Lords and his region should be quite different from that between an MP and his constituents. The latter is elected as an individual to represent his constituents as individuals. The former will be elected by reference to his party's strength in the region to represent the region as an entity.
Filling Vacancies
It will from time to time be necessary to fill vacancies among the regional members. When vacancies occur in the European Parliament, the seat is offered to the highest placed unsuccessful member on the relevant party list. Only if none of the remaining people on the list is willing or able to serve, is a by-election held. The Government considers this to be the best way to proceed in relation to the House of Lords also. With an STV electoral system in Northern Ireland, by-elections will always be necessary.
Franchise
At present, members of the House of Lords are not allowed to vote in Westminster elections. The legal bar is because they are peers, who are barred at common law from voting. (Hereditary peers no longer in the House now have a statutory right to vote.) Members of the House of Commons, on the other hand, may vote in Westminster elections. This is relevant only if there is a by-election in a constituency where they are registered to vote, and is therefore perhaps of limited practical effect. Nonetheless, that is the law. The question therefore arises as to what is the proper franchise for elections to the House of Lords. Should MPs, who can vote for other MPs, be allowed also to vote for regional members of the House of Lords, as they can of course vote for local councillors, MSPs, AMs, MLAs or MEPs? If the answer to that is 'Yes', then there is no rationale to bar members of the House of Lords from voting. If, further, members of the House of Lords can vote in elections for regional representatives in the House of Lords, even though they already sit there in person, what could be the grounds for continuing to ban them from voting in elections to the House of Commons?
Whatever is done about the rights of members of the House of Lords in relation to elections to the House of Commons will need legislation. This is because the legal bar is by virtue of a peerage. So members of the reformed House who are not peers would not suffer from the common law bar. They would have to be excluded by statute. Conversely present members who are life peers, and those who become life peers in the future, perhaps without being members of the House, will be barred. Peers not in the House would have to be enfranchised by statute.
The Government believes that it would be right to rationalise the franchise in respect of both Houses. It proposes that all members of either House, and all peers, should be able to vote in all elections to either House. This will be recognition of the different roles played by each House and the different purposes of each election. In particular, it will recognise the extent to which a General Election is now about the election of a Government, on which members of the House of Lords have an equal interest with all other citizens.
Supervision of Elections
Under the Political Parties, Elections and Referendums Act 2000, the Government has established an Electoral Commission to take responsibility for the oversight of elections in the UK. Its remit runs to local elections and those to the devolved institutions as well as those to the House of Commons. The Government believes it the right body to supervise the election of regional representatives to the House of Lords. It will be the expert in electoral law and propriety. The Electoral Commission will also, in due course, take over the responsibilities of the Boundary Commission. The Government proposes that it should be responsible for the boundaries of the House of Lords constituencies as it is for all others.
Size of the Elected Regional Element
It is important to remember when considering this question that the primary purpose of an elected element is to provide a proper means of regional representation.
A majority of the Royal Commission was able to support Option B - an elected element of 87. There were two main reasons for this. The first was that it was the number of UK MEPs. It was therefore a number that had been shown to produce both a properly proportional result and proper regional representation, producing enough constituencies to enable people to feel an identity with their area and enough seats per constituency to ensure a spread of political opinion. The figure of 87 was also, in relation to the overall size of the House, adequate to ensure that the regional representation was a distinctive and ever-present element in the House, while not being so high as to obscure the main purpose of elections. The Government agrees the principles underlying this option.
There are, however, a number of practical disadvantages with the way that the Royal Commission's Option B of 87 would operate, including the proposal that elections be staggered so that only some seats fall vacant at each election. The Government is also proposing that the House will be somewhat larger than originally suggested by the Royal Commission. The present House has around 700 members, and that may rise as further adjustments are made to the party balance. The Government's proposed ultimate objective for the size of the House is 600, compared to the 550 suggested by the Royal Commission. That would lower the percentage of elected regional members as a proportion of the whole House if it remained at 87.
The Royal Commission itself was prepared to entertain a regional element of up to 195, which the Government believes to be too high. The Government's consistent underlying philosophy in all its proposals is that the composition of the House of Lords should not undermine the position of the House of Commons as the focus of our democracy. It is for that reason that the Government, like the Royal Commission, does not favour a wholly, or largely, elected second chamber. The elected element is also primarily intended to ensure that the regions are represented properly in the second chamber. The legitimacy of the second chamber will come from its fitness for its functions, not from the size of its elected element. The regional (elected) element therefore needs to be limited to ensure that there is enough room in the House to accommodate all the other interests to which the Government also attaches importance.
The Government believes that all these considerations can best be met by setting the elected element at 120, which will be one-fifth of the size of the final House. That number will be equal to the number of independent appointed members. The membership of these two elements, taken with that for Bishops and the Law Lords, will mean that the appointed political members will be just over half of the membership of the final House.
Staggered elections?
The Royal Commission recommended that only a proportion of elected members be elected at each election, which is common practice among second chambers abroad. There are certainly advantages in such arrangements. They help to distinguish the first and the second chambers. They distance the second chamber from sharp shifts in political opinion. They make it clearer that elections to the second chamber are not elections to a government, since only a proportion of the chamber is having its mandate renewed at any one time. They mean that the second chamber continues seamlessly in existence, and that there is a guarantee that there will always be a high proportion of members with experience, well settled, in the chamber.
However, the Government sees difficulties in the idea of the staggering of elections. For the Royal Commission's favoured option B, within a proportional electoral system, this would mean that each election would have to be limited to certain of the constituencies, rather than taking place for certain seats within each constituency. Unlike voting in local elections, where the fact that people may not be voting in London but are voting in Yorkshire for their local authorities stems from different electoral cycles for different authorities, it will never be easy to explain why the elections for the (one) House of Lords are in this particular election taking place in Yorkshire and the Humber, but not in London.
Many of the advantages of staggered elections are reduced when only a minority of the House is to be elected. The appointed members will guarantee the continuity of the House. The political balance of the House will be determined by the results of the general election, not the regional elections.
The Timing of Elections
The Royal Commission proposed that elections to the House of Lords should be held alongside some other election. For one of their options, they proposed that this should be those to the House of Commons. For the other two, they proposed that it should be those to the European Parliament. Each has its advantages and disadvantages. There are other alternatives to determine the timing of elections that the Royal Commission did not consider, such as regional elections and local elections.
The Government agrees with the Royal Commission that elections to the second chamber should be held at the same time as some other election. Some parts of the country already vote for four tiers of elected body and all vote for at least three. A completely separate electoral exercise for the second chamber would not only be difficult to find a slot for, but could risk alienating voters if it led to prolonged campaigns. The Government is also concerned that it would be inconsistent with the purpose and profile of elections to select regional representatives for them to be free-standing elections, with the full force of media and political party attention focussed on them. Such a high profile event might also put off some otherwise excellent candidates for members of the second chamber. On the other hand, it is also necessary to give these elections a proper regional focus. They should not be completely swamped by the elections being held alongside them.
Taking these considerations into mind, the Government sees the advantages and disadvantages of each electoral cycle as follows.
European Parliament Elections
The advantages of using the European election cycle are:
It will be the simplest for the voter, since election timing and constituency will be the same, and all focused on the region;
The fixed term will mean that the terms of elected and appointed members can be the same;
By clearly separating the elections from those for the House of Commons, it emphasises that these elections are intended for quite a different purpose. It may also enable the voters to focus on the second chamber, and what they want to see there, separately from the overwhelming consideration of electing a Government.
The disadvantages of using the European electoral cycle are
The historically very low turnout. In the 1999 European Parliament election, less than a quarter of the electorate voted.
The danger that decisions on membership of the second chamber will be coloured wholly by voters' attitudes to the parties' policies on Europe
The task of balancing the membership of the House according to the voting at the previous general election would be rendered more difficult if the elections of the regional members took place, as would often be the case, during the middle of a parliamentary term.
Westminster Elections
The main advantages of combining the elections with those for the House of Commons are:
The turnout will be higher.
The total focus of the election will be on national and local issues, rather than European ones
It does not complicate the political balancing of the House.
The main disadvantages of combining elections with those for the House of Commons are:
It risks completely obscuring the purpose and regional nature of the elections, as voters might fail to distinguish between the two elections
The term is variable, which makes it difficult to match the terms of the elected and appointed members.
Local and Regional Elections
The other option, not considered by the Royal Commission, would be to combine the elections with those for either regional bodies or local authorities. In England, at the moment, regional elections would not be an option except for London, but if the network of regional assemblies spread, then it would be possible to move onto this basis throughout the country at a later date.
The advantages of using the regional electoral cycle are
It would emphasise the link with the regions. Voters would elect the members of their regional bodies and their regional representatives at the same time. Regional considerations would be paramount in voters' minds as they made their decisions.
They operate to a fixed cycle.
The disadvantages of using the regional electoral cycle, at least at present, are
The proper network does not yet exist except in Scotland, Wales, Northern Ireland and London, and their electoral cycles are different. There is no uniform substitute in England. Counties and some districts elect to (different) four-year cycles, but other types of authority will have elections for part of their members in most years. In 2003, when everyone except the counties has elections, 80% of the population will have an opportunity to vote, but in most other years, the number is closer to 50%. Since constituencies will have to cover a wide range of authorities, there must be a high chance that the date chosen for the House of Lords elections will not, in fact, coincide with local elections in a large number of authorities.
There is no means as yet of knowing what the turnout would be. For local elections it is much lower than for General Elections. The elections to the Scottish Parliament produced a turnout not much different from that for the last general election; however, elections to the Greater London Authority produced a turnout similar to that for local elections.
The Government is attracted to the alternative of holding elections to the Lords on the same day as the General Election and would welcome people's views on this proposal.
Length of Electoral Term
The Royal Commission proposed that all members should be elected for three terms. Since this was three EP terms, that meant 15 years. Their main reason for proposing this length of term was that it would foster a spirit of independence, since members would not need to fear for their prospects of re-election (or re-appointment, since the same term applied to appointed members).
The 15-year term proposed by the Royal Commission is extremely long, by any standards. The longest term in a comparable legislature is the 9 years served by members of the French Senate. Chapter 8, Conditions for membership, discusses the question of length of term in more detail, because it relates to the appointed as well as elected members.
There is no need, in the Government's view, for the terms of elected and appointed members to be the same. If elections for regional members were linked to those for Westminster, the periods could only ever be approximately equal. The Government is also inclined to give greater emphasis to the question of accountability than the Royal Commission wished to do.
Re-election
The same trade-off between independence and accountability applies in relation to re-election. Once again, the Royal Commission decided that it attached much more importance to independence, and therefore proposed that regional members should not be eligible for re-election. (They would, however, be eligible for appointment). Whether this policy is sustainable is to some extent dependent on the length of term for which a person is elected. If it is 15 years, as the Royal Commission recommended, then it might be. That does not necessarily make it desirable. If, on the other hand, the term is limited to a single Parliament, then it is clearly unreasonable to tell someone they cannot seek re-election. No one of any substance would be prepared to stand in the first place. On balance, the Government proposes that re-election and re-appointment should both be permitted.
Relevant paragraphs of the White Paper: 65-68, 93
|
The Government's proposals are :
|
The present position
The Government established in May 2000 a non-statutory Appointments Commission which took over from the Prime Minister the task of considering people for non-political peerages. They were asked to operate an open and transparent process. They have done so, making extensive use of the internet to publish their activity. The first round of appointments attracted over 3,000 applications. The first list of peers recommended by the Appointments Commission was published on 26 April 2001. Compared to the old Honours' List recommendations, the Appointments Commission has considered more what the peer can contribute to the work of the House of Lords, and less the idea that the peerage is an honour for past achievements.
The Appointments Commission has also taken over from the Honours Scrutiny Committee the function of undertaking propriety checks on those nominated by political parties.
The Prime Minister has retained the power to determine how many nominations to invite, from both the Appointments Commission and the other political parties. The Government has made it clear, however, that in deciding on this, the Prime Minister would be guided by a number of principles:
The Government would seek no more than broad parity with the main Opposition party. On 1 November 2001 it had 23 fewer seats;
Creations for the other parties would be aimed at making their share of the House more proportionate to their share of the general election vote. The last two lists of working political peers have seen twelve Liberal Democrat creations compared to nine for the Conservatives, in recognition of this;
A significant proportion of cross-benchers would be retained. The Prime Minister invited the Appointments Commission to make 15 nominations in recognition of this.
The 1999 White Paper
The 1999 White Paper concentrated on the new arrangements for the transitional House. It did indicate, however, that the Government saw the case for a continued Appointments Commission as part of the arrangements for a wholly or largely nominated House.
The Royal Commission's proposals
A statutory Appointments Commission is at the heart of the Royal Commission's proposals for the nominated element of the reformed House of Lords. They recommended a Commission of 8 members, four directly nominated by the three main parties and the cross-bench peers, and four recruited through an open appointments system. The Appointments Commission would be appointed by The Queen in response to an Address from the House of Lords itself. The House of Lords would also have to petition for the removal of a member of the Commission. It would be accountable to Parliament directly, rather than through a Minister.
The Royal Commission proposed that the basic functions of the Commission should be to
Appoint all members of the second chamber. This would include the regional members, the Law Lords and the Bishops, but in those cases the Appointments Commission would be obliged to appoint the person(s) elected, or nominated by the Crown;
Select all the nominated members, including those representing the political parties. The Appointments Commission would take account of recommendations from the parties, but would not be bound by them. It would be obliged to run an open and transparent nominations process;
Determine the number of new nominations, in accordance with the principle that the respective strengths of the parties should reflect their share of the vote at the previous general election, and that the members not affiliated to the major political parties should form about 20% of the House.
In fulfilling those functions, the Appointments Commission was to be subject to the following requirements :
It would be required to ensure that members of the second chamber were broadly representative of British society on a range of stated dimensions;
It should be under a statutory duty to ensure that a minimum of 30% of new members of the second chamber should be women and 30% men;
It should be required to use its best endeavours to ensure the level of representation for members of ethnic minority groups was at least proportionate to their presence in the population as a whole;
It should play a role in ensuring appropriate representation for religious faiths.
The Government's proposals
The Government agrees with the Royal Commission that there should be a powerful, statutory Appointments Commission. For the past 300 years, the government of the day has effectively been able to manipulate the membership of the second chamber. That is no longer acceptable. As promised in its 2001 Manifesto, the Government therefore proposes to build on its innovation of the interim Appointments Commission by setting up a statutory body.
Composition and appointment
The Government proposes that the composition and status of the Appointments Commission should be largely as recommended by the Royal Commission. In turn, they are very similar to those set in place for the Electoral Commission, taking account of the fact that the Appointments Commission's primary relationship would be with the House of Lords.
The Appointments Commission would consist of eight members, four nominated and recommended by the parties and the crossbenchers, and three members and the Chairman recruited through an open and independent selection process, conducted in accordance with 'Nolan principles'. The latter would be expected to be politically neutral in their dealings on the Commission.
It would be appointed by The Queen in response to an address from the House of Lords. The Address would be moved only after the party leaders have been consulted about the names.
It would be independent of Ministers, and accountable to Parliament. It is likely to look mostly to the House of Lords. However, as it would be in receipt of public funds, the House of Commons would have a legitimate interest in its use of those funds. As a public body, it would also be expect to present an annual report on its activities to both Houses of Parliament.
A Commissioner could be removed from office only following a resolution of the House of Lords. This is the natural corollary of appointment being in response to an Address from that House. The grounds for dismissal would be set out in statute and would amount to serious misconduct.
There would be no barriers on members of either the House of Lords or the House of Commons being on the Commission. The Government hopes that the Commission would not be totally dominated by parliamentarians, but it does not wish to prevent a political party appointing an MP if they wish. Nor does it wish to set up the situation where potentially no openly recruited member, including the chairman, could be a member of the House of Lords.
Commissioners would be appointed for an initial period of five years. They would be eligible for reappointment for a single five-year term.
Commissioners would not themselves be eligible to be appointed as members of the House of Lords while they are, and for a period of five years after they have ceased to serve, on the Commission.
Functions
The functions the Government proposes for the Appointments Commission would essentially be threefold:
to determine the number of appointments and the balance of the House;
to make nominations to the cross-benches;
to undertake propriety checks on the political nominations.
(a) determination of the number of appointments and the balance of the House
At each round of appointments, the Appointments Commission would decide how many to invite from each of the political parties, and how many nominations it would itself make to the cross-benches. This would be its most important function for ensuring the continued independence and integrity of the House of Lords. The net effect would be to reduce significantly the government's ability to influence the composition of the second chamber. The only exception is that the government believes it right to retain the discretionary right of the Prime Minister to make a small number of appointments - 4/5 - in each Parliament of people intended to work as Ministers in the Lords. This enables the government to have some flexibility to ensure there is an appropriate Ministerial representation in the Lords.
The Government proposes that in exercising this function the Appointments Commission would be guided by the following principles :
The balance of the political parties should, ideally, reflect their shares of the vote at the preceding general election. This cannot, however, be a precise arithmetic requirement. The membership of the House would always be in a state of flux, as members come to the end of their term of appointment, or retire, or die. If there is a change of government, especially with a massive swing, the Appointments Commission must be allowed time to respond to this. A large number of enforced resignations from a losing party would inhibit the sense of independence from excessive party control that the Government supports for the second chamber. This would be particularly true if the party chose which of its members should depart. Conversely, a large number of creations to bring the winning party up to its correct strength in relation to the losing party would, if repeated over a sequence of elections, result in exponential growth in the size of the House. The Government does not think either of those outcomes is desirable. As practical targets, therefore, the Appointments Commission would be expected to observe the following if there was a change of government, especially one with a massive swing:
Its distribution of appointments should always bring the House towards the outcome of the General Election;
By the beginning of the third Session of a Parliament at the latest, the governing party should clearly be the largest party. Its margin over the main opposition party should, however, not exceed that implied by their respective voting shares.
For the rest of the parliament, the parties' respective shares should continue to approach their shares of the vote at the preceding general election.
These rules on proportionate shares would be applied to a party if it achieved a given threshold of the vote. The Government is minded to set this at 5%, but would be interested in views on this. For parties who contest seats only on a regional basis, the threshold would be set in relation to the votes cast in that region only.
The Appointments Commission would be required to publish a Code of Practice setting out how it proposes to deliver these objectives.
The principle that the parties' respective shares of the House should be determined by their respective shares of the national vote is, in the Government's view, the best one for determining relative strengths in the House. However, it is undeniably difficult to achieve quickly within a fixed membership of the House. It is for that reason that the Government proposes that there should be a number of intermediate targets which will ensure that the Appointments Commission makes progress towards the ultimate objective. It must be recognised, however, one of the consequences of the above proposals is that for much of the time, a government might not in fact be the largest party in the House.
(b) Nominations to the cross-benches
As well as deciding how many nominations are needed to keep up the strength of the independent element in the House, the Appointments Commission would also select the independent members. In doing this, it would be expected to operate an open and transparent process, consistent (where relevant) with the principles of the Commissioner for Public Appointments. The Government has welcomed the approach adopted by the interim Appointments Commission. It has used the internet to open up its procedures and make itself accessible. It has invited self-nomination through public road shows and has also contacted a large number of relevant organisations to encourage them to suggest people. As part of its policy of encouraging openness, it has required all those nominated, whether directly by themselves or at the suggestion of another, to fill in an application form and to signify their agreement to the selection process, notably certain checks the Appointments Commission makes to establish that an individual is a fit and proper person to sit in the House of Lords.
In determining its nominations to the cross-benches, the new statutory Appointments Commission would also be required to observe two conditions. These have both been recommended by the Royal Commission.
Gender balance
First, the Appointments Commission would be under a duty to ensure that over the lifetime of a Parliament, at least 30% of its nominations would be of men, and at least 30% of women. The Government hopes that over time, this would lead to a better gender balance in the House, more accurately reflecting that in the population.
The Government is confident that this requirement can be imposed while maintaining the independence of the Appointments Commission and appointing on merit. Firstly, the requirement is to be imposed over the lifetime of a Parliament, not to each list. Secondly, the requirement applies to only 60% of the totality of appointments, leaving 40% where the Commission would have freedom of manoeuvre.
Ethnic minority representation
The second requirement to be laid on the Appointments Commission is to use its best endeavours to ensure a level of representation for members of ethnic minority groups which is at least proportionate to their presence in the population as a whole. This is a target directed at the make-up of the House, not of each list produced by the Appointments Commission. The numbers involved are too small to make it feasible to apply to each list. For example, with 120 independent members, the ethnic minority representation would be, at 5%, 6. With 15 year terms as recommended by the Royal Commission, on average an ethnic minority appointment would be required, to meet the target, only every 2½ years. The Government does not think it worthwhile imposing that sort of requirement, which would do nothing to solve the current under-representation of ethnic minority members.
Diversity
The Royal Commission also proposed a third duty on the Appointments Commission: that it should be required to ensure that the second chamber was broadly representative 'on a range of stated dimensions'.
The Government remains committed to seeing the House of Lords become more reflective of the country as a whole. It is an objective it takes extremely seriously. It would urge the Appointments Commission to set up its procedures and methods of selection in a way that encourages the appointment of a widely representative body. The Government will require the Commission to have regard to the importance of ensuring a fair overall representation of the nations and regions of the UK, as well as having regard to the needs of ethnic minorities and faith communities.
(c) to vet the nominations produced by the political parties
The Government proposes that the Appointments Commission would be charged with checking the propriety of the nominations made by the political parties. This is the function that was until recently carried out by the Political Honours Scrutiny Committee and is now carried out, in respect of peers, by the interim Appointments Commission. It is about whether someone is a 'fit and proper person' for membership of the House of Lords, not more general questions of suitability.
The Royal Commission proposed that the Appointments Commission's responsibilities with regard to political appointments should be more extensive. It proposed that the Appointments Commission should have the final responsibility for selecting the political members. It would take account of the parties' views, but it would make the final judgement.
The Government has considered this recommendation very carefully. It has decided not to accept it. The Royal Commission's main reason for this recommendation seemed to be that, without access to influencing the selection of the political members in this way, the Appointments Commission would be unable to achieve the proposed diversity targets.
The Government sees significant difficulties with the proposal that the Appointments Commission should have the final word. It is quite wrong that a political party should not be able to determine who represents it in Parliament. Indeed, it is difficult to see how that power can be taken away from it, since it would always be up to the party to offer or withhold the whip. The Royal Commission itself recognises this. If that is the case, however, and the party refuses to accept a person nominated by the Royal Commission to fill one of their seats, how is the position to be resolved? It would risk upsetting the political balance of the House; and it is in practice unworkable.
The Appointments Commission will have the power to determine the numbers of each party in the House. That would be enough to ensure that no party, particularly that of government, can abuse its position.
Other functions
It will also be part of the Appointments Commission's functions to monitor the overall make-up of the House. It should give guidance to the political parties on where particular groups (for example those in a particular occupation or from a particular region) are significantly under-represented. One of the problems with the present system is that no-one is charged with making an authoritative analysis of the areas of expertise available to the House. The Government thinks that is a gap which the Appointments Commission would be well placed to fill. The Government therefore believes that the Appointments Commission's annual report should cover these aspects of membership of the House of Lords.
The political parties would also be subject to the requirements in relation to gender and ethnic origin set out in section (b) above. In practice, because of the small numbers involved on an annual basis, the Government proposes to apply the requirement only to those parties who have more than 50 seats in the House. The duty would be laid on each of those parties in exactly the same way as it would be on the Appointments Commission. This will ensure that the requirements are embedded much more deeply in the consciousness of the parties than would be the case if they were left to the Appointments Commission alone to deliver. The Appointments Commission's monitoring functions should also provide plenty of early warning to the parties when they are in danger of failing to meet their targets, so they can rectify the situation.
Relevant paragraphs of the White Paper: 54-57, 69-77
|
The Government is particularly seeking views on:
The Government is also proposing
|
The present position
There are no restrictions on who may be a peer, and very few on who is eligible to be a member of the House of Lords. To be a member of the House of Lords, a person must be either a life peer, including a Law Lord; or a hereditary peer excepted from the 1999 House of Lords Act; or a qualifying Bishop. He or she must be aged over 21; a UK, Irish or Commonwealth citizen; and not an undischarged bankrupt. Membership is for life, except for the Bishops. A life peer may not relinquish either his peerage or his membership of the House, nor can a hereditary peer who is a member of the House. (A hereditary peer who is not a member of the House may disclaim his title within 12 months of succeeding.) The only grounds for suspending a peer's membership are those that would disqualify him in the first place: in practice, that means bankruptcy. Unlike MPs, peers who are imprisoned for any reason except treason do not lose their seats.
The 1999 White Paper
The 1999 White Paper did not look in any detail at how a large nominated element should actually work, although it drew attention to the importance of the term of membership in determining the overall approach of the House to its work.
The Royal Commission proposals
The Royal Commission recommended that nominated members should serve 15-year terms, and should be eligible for re-appointment for up to a further 15 years. The Appointments Commission would have the discretion to offer a shorter period of re-appointment, although not of initial appointment The Royal Commission also recommended that members of the second chamber should be able to retire or resign before the completion of their term, on the understanding that this was a binding decision; they would not be able to claim the right to serve out the remainder of a term if they felt that resignation had been a mistake. They did not recommend either a compulsory retirement age, or a higher than normal minimum age for eligibility. They recommended that the House should be able to expel members, but did not address the question of initial eligibility. They also recommended that all members of the second chamber should be barred from membership of the House of Commons for 10 years after their term finished, whether or not they served out the full term.
The Government's proposals
Eligibility for membership
There are very few disqualifications for membership of the House of Lords. Particular professions (such as the armed forces) may have rules about the extent to which active membership of the House is compatible with professional status. However, while a high proportion of the House was still hereditary, it was impossible to prevent people being members of the House altogether; membership came with the peerage, which might be inherited in quite unexpected circumstances and could not, until 1963, even be renounced.
Membership of the House of Commons, on the other hand, is subject to a large number of disqualifications. Their origin was the need to limit the power of the Crown in Parliament by banning those in 'offices of profit' from sitting in the Commons, because they would be regarded as 'placemen' who would be unwilling to scrutinise the executive. There are a number of different justifications within that overarching principle. Some relate to the undesirability of members of the executive over-dominating the chamber. Others relate to the undesirability of those who ought to be politically even-handed instead identifying themselves with a single party.
There are three different approaches possible to the question in relation to the House of Lords. These are to keep the existing Lords' rules; to adopt the existing Commons' rules; or to devise an intermediate regime especially for the reformed House of Lords.
On the side of the current rules, it could be argued that the present Lords' regime has worked perfectly well and there is no overwhelming reason to change it. The House of Lords will not have the power to remove a Government, so the 'placemen' argument is irrelevant. The House of Lords will not be concerned with Supply, so the 'office of profit' argument is irrelevant. At the same time, the qualities that led to people being appoin