Memorandum by Professor Iain McLean, Professor
of Politics, Oxford University (LR 58)
CM 5291:
THE HOUSE
OF LORDS
— COMPLETING THE
REFORM
SUMMARY
The Government has a manifesto commitment "to
reconstitute the House [of Lords] on a modern representative basis".
The most obvious, and easiest, way to honour that commitment is
by choosing most of its members by direct popular election.
The elections should be by proportional representation
(open-list or STV) in the 12 territorial districts of the UK,
viz, the three non-English territories and the nine standard regions
of England.
Elected members should be elected by halves,
and serve for one non-renewable term of 10 years (or two parliaments).
Retaining the Parliament Acts unaltered will continue to guarantee
the primacy of the House of Commons.
There are arguments for combining Upper House
elections with a fixed-term cycle (European or local) and with
the General Election cycle. I lean towards the latter, because
it helps to guarantee the primacy of the House of Commons.
— The Government wishes to meet its
manifesto commitment to a representative House by laying a duty
on the Appointments Commission to make the House representative
of the UK by gender, ethnicity, and faith community.
However, the Government's rejection of Wakeham's
Recommendation 98 makes this mathematically impossible. The Appointments
Commission would have to shape a House of 600 while able to choose
only 120 of its members.
It is wrong to ask the Appointments Commission
to rebalance the House to any particular share of the popular
vote in elections to another place. That smacks of Zimbabwean
democracy.
Neither Church of England bishops nor Law Lords
should be ex-officio members.
The transition problems are more tractable than
the White Paper maintains.
INTRODUCTION
Mr. Bryant: I thank my right hon. Friend for
giving way. Does what he is saying about the consultation process
mean that if the consultation showed that people wanted a wholly
or substantially elected second Chamber, the Government would
then bring forward such a set of proposals?
Mr. Cook: ...[O]f course we will listen to
what is said during the consultation period. In the period of
reflection that will follow, we will see where we can find the
centre of gravity in order to move forward with reform... Of course,
I recognise that not all Members who support reform and those
principles of the White Paper will necessarily support all the
solutions by which it achieves those principles. What is now urgent
is to find the package that would establish the greatest consensus
among those Members of Parliament and the public. (Hansard, Commons,
10.01.02, cols 702-4).
"That this House supports the democratic
principle that any revised Second Chamber of Parliament should
be wholly or substantially elected." (EDM in the name of
Fiona Mactaggart MP, with 177 signatures by 10.01.02).
"So what do we do next? The only sensible
way to resolve the issue is by a free vote on the various options,
starting with the most radical—all Members elected—and
then working down." (Sir George Young MP, Hansard, Commons,
10.01.02, col. 730).
All available evidence suggests that the centre
of gravity, both of UK public opinion and of the opinion of Members
of Parliament, lies in favour of an upper house at least half
of whose members are elected and fewer than half, if any, nominated
by or via political parties. Part A of this evidence therefore
sets out how the Government might adapt the Royal Commission's
proposals if it wishes to produce a predominantly elected upper
house. Sir George Young's proposal would be a good way to implement
the Leader of the House's reply to Mr Bryant.
Part B sets out how the Government might design
a house whose elected component is no larger than the Royal Commission's
proposals. Comments on religious representatives and on the Lords
of Appeal in Ordinary, which apply whether or not the upper house
is predominantly elected, are in Part C; and on transitional issues
in Part D.
To distinguish the reformed upper house from
the House of Lords, and its members from peers, in this evidence
the former is called the senate and its members senators. This
is simply a labelling device.
A. FINDING THE
CENTRE OF
GRAVITY
A1 The Government is pledged in its Manifesto
to complete reform of the Lords to remove the hereditary element
entirely and to reconstitute the House on a modern representative
basis Cm 5291 § 3. The obvious interpretation of this
manifesto commitment is that the upper house must become a predominantly
elected house. For an alternative interpretation, based on a rival
conception of "representative", see part B of this evidence.
Part B will show that the White Paper proposals cannot achieve
"representativeness" in that sense.
A2 The Government has made it clear that
any upper house must respect the primacy of the House of Commons
over legislation. It included this constraint in the instructions
to the Royal Commission. All of the following evidence respects
that constraint. So, if the senate is to be predominantly an elected
house, its powers and election timetables must be designed so
that the primacy of the House of Commons over legislation remains.
A3 This is achieved by retaining the Parliament
Act 1949: "it [the Government] 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" (Supporting Documents 4:10). I
agree.
A4 The Government's case against direct
election of all or most of the Upper House is that direct election
would, in and of itself, undermine the primacy of the House of
Commons over legislation. Neither the Royal Commission Report
nor the White Paper succeeds in showing this.
A5 The Royal Commission's logic was faulty.
In arguing against a directly elected Upper House, it said:
11.5... There would be a risk that the second
chamber would have a different political complexion from the House
of Commons. Such a divergence would, whatever the formal distinctions
between the chambers in terms of their powers and pre-eminence,
be bound to give rise to constitutional conflicts. A different
risk would arise if the second chamber had the same political
complexion as the House of Commons because that could cause it
to act as a compliant rubber stamp for whatever any future
Government might want to do.
11.6 Regardless of its political complexion,
the central objection to a directly elected second chamber is
that it would, by its very nature, represent a challenge to the
pre-eminence of the House of Commons and make it difficult to
strike the balance between the powers of the two Houses that our
terms of reference require and that we have recommended. (A
House for the Future Cm 4534, chapter 11, my emphases).
But paragraph 11.5 proves too much. The second
chamber must have either a different political complexion from
the House of Commons or the same political complexion as the House
of Commons. These possibilities are mutually exclusive and jointly
exhaustive. And that is true whatever proportion of the second
chamber is elected. Therefore paragraph 11.6 does not validly
follow from 11.5. A way must be found to ensure that the senate
neither gives rise to constitutional conflicts nor acts
as a compliant rubber stamp, whatever proportion of its members
is elected. These opposite dangers must be addressed via the powers
of the senate and the manner of appointment to it, not its composition.
A6 The senate will not give rise to constitutional
conflicts if the Parliament Act 1949 is retained. That preserves
the situation in which the senate has a veto only in the last
year of a Parliament. No constitutional crisis has arisen since
1911 from the House of Lords, with no democratic legitimacy, using
this power. If a democratically elected senate exercises the same
veto, it will have more legitimacy than the House of Lords. Therefore,
a fortiori, there will be no constitutional crisis if the senate
blocks legislation in the final year of a parliament.
A7 The House's power to reject Statutory
Instruments did not give rise to a constitutional conflict on
the one occasion it was used recently (in 2000). Therefore that
power should be retained. The White Paper's proposals to restrict
this power could restrict the senate to acting as a compliant
rubber stamp.
A8 The Government has not accepted Wakeham's
Recommendations 74 (elected members not to be re-eligible to stand
for election) nor 98 (Appointments Commission, not political parties,
to select political nominees). By rejecting these two key recommendations,
I cannot accept that the White Paper "build[s] on that essential
groundwork" (Cm 5291 §5). Rather, it undermines it.
A9 One weapon that parties have over their
parliamentarians is the threat to deny them reselection. Recommendation
74 of the Royal Commission would ensure that the parties would
not have the weapon; and that the senate would not attract those
who wished to make a lifetime career of party politics.
A10 The Government rejects Wakeham Recommendation
98 on the grounds that "It is quite wrong that a political
party should not be able to determine who represents it in Parliament"
(Supplementary documents 7:32). But if the leaders of political
parties control the nomination and renomination of their
appointed senators, those senators will have such a powerful incentive
to obey the Whips that, as in the Commons, government politicians
will tend to support Government proposals regardless of merit
and opposition politicians to oppose them regardless of merit.
The requirement on the Appointments Commission to rebalance the
senate after each General Election to reflect the balance of party
strength in the Commons (Cm 5291 §66) must require any party
that has lost ground in the election to give up some of its nominees.
If the party chooses which those are to be, that is an even more
direct threat to their independence than anything Whips or extra-parliamentary
parties have yet devised for MPs. It would be an impossibly invidious
task for a non-partisan public body to ask the Appointments Commission
to choose. It also suggests a ZANU-PF conception of democracy.
If the senate has a different complexion to the House of Commons,
that will be, in part, because the people have voted for it to
have a different complexion. The Appointments Commission is not
going to wish to play the role of the Zimbabwean army. §66
of the White Paper is unworkable, and must be rethought even if
nothing else is.
A11 The electoral system for directly elected
senators must not be the closed list system currently in force
for elections to the European Parliament. If a party has unfettered
control of its list, it can punish its own members by placing
them low on the list. Therefore, again, party senators would be
at least as beholden to Whips or extra-parliamentary party organisations
as MPs are. Either an open list system or Single Transferable
Vote would avoid this danger, and achieve the Government's objective
for the elected component of the senate.
A12 I agree with both the Royal Commission
and the White Paper that there should be a group of cross-bench
senators chosen for their expertise by the Appointments Commission.
These could include religious leaders and lawyers. Assuming that
somewhere around 100 cross-benchers would both cover the range
of expertise required and ensure that no party had an overall
majority in the senate, there would be scope for about 500 elected
members if the Government persists in its desire for a target
house size of 600. If the Government comes to agree with the general
view (which I share) that that number is much too big, then both
members could be halved, say to 50 cross-bench experts and 250
elected numbers.
A13 It will be easy for the Government to
legislate for a larger elected component in the senate than the
Royal Commission proposed. All the essential matters are in place,
notably election by proportional representation in 12 multi-member
districts, viz, the three non-English nations and the nine standard
regions of England; elections to coincide with some other election;
elections to be supervised by the Electoral Commission. On all
of these matters I believe the White Paper is correct, providing
that the PR system used is not closed party list (see A10).
A14 The Government invites views on which
out of (a) European Parliament elections; (b) Westminster
elections; (c) local and regional elections should
coincide with senate elections. Options (a) and (c) have similar
advantages and drawbacks and I therefore discuss them together—if
one is chosen, I do not mind which.
A15 They both offer fixed terms (five years
and four years respectively). This confers a double advantage.
For the senate and its members, it gives certainty as to the length
of the current term. And it removes election timing from the scope
for political manipulation. Finally, the would tend to bolster
turnout at those "second-order" elections. The Government
argues that the disadvantages of using the European electoral
cycles are "the historically very low turnout... [and] the
danger that decisions on membership of the second chamber will
be coloured wholly by voters' attitudes to the parties' policies
on Europe" (Supporting Documents 6:29). However, political
scientists have shown (i) that low turnout at Euro and local elections
derives from voters' perception of them as "second-order";
(ii) that voters reward and punish the parties in those elections
overwhelmingly because of what is happening in national politics,
not in European or local politics. The first two bullet points
in Supporting Documents 6:29 therefore speak for, not against,
combining senate elections with one of those.
A16 However, the Government's third argument
against tying the senate to either of those fixed-term cycles
is stronger. It is a firm sociological law that the Government
of the day always does badly in mid term. Therefore at almost
every fixed-term senate election the Opposition of the day would
do better than at the previous General Election. This might generate
the constitutional conflicts that the Government seeks
to avoid. Therefore, (rather reluctantly) I support White Paper
Option (b), namely having senate elections coincide with General
Elections. However, unless considerably more guarantees of senate
independence are built in than the White Paper proposes, the senate
risks acting as a compliant rubber stamp. Many of the guarantees
have already been mentioned. Another would be the proposal by
the Conservative Party's Mackay Commission to deal with the problem
of short Parliaments. If a Parliament lasted less than a certain
minimum time, the terms of those elected senators due to retire
would be extended for one further parliament if (and only if)
a joint resolution of both Houses so resolved.
A17 Having senate elections coincide with
Westminster elections would almost always deliver two of the Government's
desiderata at once. The party which won a majority in the Commons
would have the largest single number of senators; but no party
would have a majority of even the political senators, and therefore
a fortiori of the senate as a whole. These results flow from the
simple fact that the Commons election would be by plurality, while
the senate election would be by PR. No party has won more than
half of the votes cast in a UK nationwide election since 1935.
Even in the landslides of 1886, 1900, 1906, 1918, 1935, 1945,
1983, 1997, and 2001, the governing party would have won fewer
than half the seats in a simultaneous half-election by PR to the
upper house. Only in 1931 (when the winning coalition won 67.0
per cent of the votes cast) would a simultaneous senate election
have produced a majority of seats for the governing coalition.
A18 The term of each elected senator should
be two parliaments, non-renewable (see RC Recommendation 74 and
A7-A8 above). Half of the senate would come up for election at
each General Election. This plan would ensure that enough senate
seats would be up for election even in the smallest district to
ensure representativeness of diverse opinion. The smallest election
district would be Northern Ireland, with about 2.7 per cent of
the UK electorate. In a half-senate election where there were
250 seats to fill, Northern Ireland would therefore have seven
seats By the standard formulae for electoral systems, then, any
group that can command at least 1/8 of the votes in Northern Ireland
would get a seat, thus ensuring that all main traditions would
be represented. Similar calculations apply to Wales and Scotland.
Across the UK, a half—senate election with 250 seats to
fill and every district having at least seven seats (most of them
considerably more) should ensure that important bodies of opinion
(such as, to use examples from 2001, those represented by the
Green Party and the UK Independence Party) would be represented—see
Table 1. There would be no need to impose a minimum threshold
of representation. The electoral system does this automatically
by setting a quota of 1/(n+1) as the minimum fraction of the vote
a party must get per seat that it wins in an n-member district.
A19 These calculations show that this arrangement
would satisfy the Government's manifesto commitment to complete
reform of the Lords to remove the hereditary element entirely
and to reconstitute the House on a modern representative basis
Cm 5291 §3.
A20 As much of the debate turns on just
how large the elected portion of the senate should be, I commend
Sir George Young's proposal (see epigraph). As opinion on the
issue is (what is technically called) single-peaked, a series
of resolutions starting with "100 per cent elected"
and, if that does not pass, continuing downwards in (say) 5 per
cent decrements will ensure that the percentage which wins a majority
can beat any other. I can supply the department with a technical
paper explaining why this is so, if required, but do not want
to put any mathematics into this evidence.
B. MAKING THE
WHITE PAPER
PROPOSALS WORK
B1 The Government seeks to meet its manifesto
commitment to a "representative" senate by imposing
requirements on the political parties and the Appointments Commission
to ensure that those nominated for election, and those appointed,
together form a microcosm of the UK population, or at least come
closer to that ideal than does the present House of Lords. Achieving
"microcosmic representativeness" will be much more difficult
than the Government believes.
B2 It would be difficult for a number as
small as the 120 elected members proposed (Cm 5291 §46) to
be a political microcosm of the UK. If elected by halves (at a
General or Euro election to serve two terms), only 60 places would
be open at a time. Even if appointed for only a single parliament,
which I think is a bad idea, only 120 places would be open at
a time. If 120 places are vacant this implies (see A17) only three
seats for Northern Ireland (where there are currently four main
political traditions of roughly equal size), and if 60 places
are vacant it implies that all the smaller regions (Northern Ireland,
Wales, North-East, East Midlands) have too few seats to allow
for political representativeness. To achieve this within the (self-imposed)
constraint of the range of Royal Commission recommendations, therefore,
the Government must accept the Royal Commission's Option C and
have 195 elected places in the senate. If elected by halves, the
number must be even, so I propose 194 elected members, with 97
places vacant at each filling. Table 1 shows the number of elected
places that would be available in each district at each election
under various assumptions about the size of the elected component
of the senate.
B3. As to demographic and social representativeness,
the Government proposals throw a very arduous burden on the Appointments
Commission. The following calculations assume that, once transition
is complete, there are 194 elected members, 120 appointed crossbench
members and 286 appointed political members. There would be no
ex officio bishops or law lords (see section C).
B3. To require gender balance, ethnic minority
representation, and diversity among the elected members would
require very intrusive primary legislation to control parties'
nominating procedures; be impossible to impose on individual independent
candidates (Dr Richard Taylor MP (Ind. Wyre Forest) has only one
gender, one ethnicity, and at most one religion); and constitute
a contempt of the electorate. Therefore, the Appointments Committee
could achieve its proposed target for gender, ethnic and faith—community
representation (Supporting Documents 7:24-28) only by choosing
the gender (etc.) of at most 406 members, and for some purposes
at most 120 members, of a 600-member house.
B4. The Government's decision to reject
Recommendation 98 of the Royal Commission makes the Appointment
Commission's task impossible. If a party's list of nominees does
not help to achieve the number required gender, ethnic and faith-community
representation, what is the Appointments Commission to do about
it? If a gender, ethnicity or faith is under-represented among
the political senators (elected or appointed) and if the political
parties (or some of them) do not voluntarily produce "balanced
tickets", the Appointment Commission will have no powers
to make them do so.
B5. In such an event, the Commission would
have to produce diversity in a house of 600 while being able to
control the relevant features in only 120 members. This gearing
could make the gender requirement (at least 30 per cent of each)
impossible to achieve, and the ethnic and faith requirements extremely
difficult. Table 2 shows the relative size of the UK's faith communities.
If the Church of England is assigned 16 representatives (whether
by ex officio bishops or otherwise), then a total of 77 senators
will be needed to represent all faith communities. Many of them
will have to be female, whatever the wishes of the faith community
in question, to satisfy the gender requirement. At worst, this
could leave the Appointments Commission with only 53 crossbench
places to fill with representatives of anything other than faith
communities.
B6. The only solution I can see is that
the Appointments Commission must ask each party voluntarily to
produce a ticket of nominees that is balanced as to gender, ethnicity,
and faith. Table 3 shows how difficult that would be in respect
of ethnicity. Because one ethnic group is so overwhelmingly large,
it would be difficult for any one party to nominate from each
of the other groups in the appropriate proportions.
B7. If the Government does not remove the
bishops (all of one gender, and all from one minority faith) and
the Lords of Appeal in Ordinary (historically almost all of one
gender (from the senate, then the above becomes even more problematic.
C. BISHOPS AND
LAW LORDS
C1. There is no good argument for retaining
either bishops of the Church of England or the Lords of Appeal
in Ordinary in the senate.
C2. Contrary to the claim in the Royal Commission
Report (Cm 4534, 15:9), the presence of the Church of England
Bishops in the House of Lords has not always promoted "ever
greater religious tolerance and inclusiveness". A dispassionate
historian would have to say that until the 20th century it did
just the opposite. Between 1893 and 1914, the Bishops votes en
masse against Irish Home Rule and Welsh Disestablishment.
As they were disestablished in Ireland in 1869, it is hard to
see how they felt entitled to vote at all on Home Rule; and in
Wales, their denomination was a small minority sect. If faith
communities are to be represented in proportion to size, then
the Church of England should have approximately 21 per cent of
those seats. Nothing in Cm 4534 nor in the White Paper explains
why the ex officio representation should remain.
C3. The Human Rights Act is forcing the
UK towards a formal separation of the judicial function from the
executive and the legislature. The Pinochet and Factortame
cases have shown how easily the multiple roles of the Lords in
Appeal in Ordinary could be confused. Sooner or later, the Law
Lords will have to leave the legislature. There is no better time
than now.
D. THE TRANSITIONAL
HOUSE
D1. The White Paper exaggerates and misrepresents
the problem of transition from the existing House to the senate.
It exaggerates the problem of managing the attrition in the number
of Life Peers. It misrepresents the problem of achieving political,
balance during the transition.
D2. The present House contains 144 hereditary
peers, bishops and Law Lords (only 4 of whom are women). It is
agreed that the first will go and strongly urged above that the
second and third should also go. Of 555 life peers (excluding
those on leave of absence, bankrupt, or in jail), death can be
expected to remove 18 a year for the next ten years and a somewhat
smaller number thereafter. A voluntary retirement scheme, with
club right preserved (as with hereditaries in 1999) will certainly
produce enough retirements to keep the total house size within
the cap of 750 during the transition.
D3. There is a serious mistake in §93
of the White Paper, where it is stated that Labour Party peers
would need to be created in order to give that party a lead over
the Conservatives. But the Conservative lead over Labour among
existing peers is purely a function of the remaining 92 hereditaries
continuing to sit. When they go (and assuming no deaths or resignations
among life peers), Labour will have, as it already does, a plurality
of life peers.
Table 1
SIZE OF REGIONAL CONSTITUENCIES (TO NEAREST
WHOLE NUMBER)
| Territory | Electorate
2001
| Per cent
of UK
electorate
| Seats per territory when total seats to be filled=
|
| |
| | 60
| 97 | 120
| 194 | 250
| 500 |
| Scotland | 3984306
| 8.99 | 5
| 9 | 11
| 17 | 22
| 45 |
| Wales | 2236143
| 5.04 | 3
| 5 | 6
| 10 | 13
| 25 |
| NI | 1191009
| 2.69 | 2
| 3 | 3
| 5 | 7
| 13 |
| England: |
| East Midlands | 3205094
| 7.23 | 4
| 7 | 9
| 14 | 18
| 36 |
| Eastern | 3954554
| 8.92 | 5
| 9 | 11
| 17 | 22
| 45 |
| London | 5001310
| 11.28 | 7
| 11 | 14
| 22 | 28
| 56 |
| North East | 1904342
| 4.30 | 3
| 4 | 5
| 8 | 11
| 21 |
| North West | 5243848
| 11.83 | 7
| 11 | 14
| 23 | 30
| 59 |
| South East | 6054822
| 13.66 | 8
| 13 | 16
| 27 | 34
| 68 |
| South West | 3784807
| 8.54 | 5
| 8 | 10
| 17 | 21
| 43 |
| West Midlands | 4000694
| 9.03 | 5
| 9 | 11
| 18 | 23
| 45 |
| Yorks & Hum | 3763642
| 8.49 | 5
| 8 | 10
| 16 | 21
| 42 |
| Sources: Electoral Commission, Election 2001: the official results, Tables 4 and 5;
|
| Butler and Kavanagh, British General Election of 2001, Table A1.2
|
Table 2
FAITH COMMUNITIES IN THE UK
| |
| N (000) | Percent of
total
| Entitlement to
seats
|
| Christian: | |
|
| |
| | Anglican |
1,654 | 20.89
| 16 |
| | Catholic |
1,768 | 22.33
| 17 |
| | Free Churches
| 1,278 | 16.14
| 12 |
| | Presbyterian
| 989 | 12.49
| 10 |
| | Orthodox |
235 | 2.97
| 2 |
| | Non-Trinitarian
| 533 | 6.73
| 5 |
| Buddhist | |
50 | 0.63
| 0 |
| Hindu | | 165
| 2.08 | 2
|
| Jewish | | 95
| 1.20 | 1
|
| Muslim | | 665
| 8.40 | 6
|
| Sikh | | 400
| 5.05 | 4
|
| Others | | 85
| 1.07 | 1
|
| Total | | 7,917
| | 77
|
| Source of column 1: Office of National Statistics, UK 2002, Table 15.1
|
| Column 3 is derived by comparing the relative size of each faith community to that of the Church of England, for which the White Paper proposes 16 reserved seats.
|
Table 3
ETHNICITY IN GB
| Group | Per cent of
population
| Target number in House of 600
|
| White | 92.9
| 557 |
| Black Caribbean | 0.9
| 5 |
| Black African | 0.8
| 5 |
| Black Other (non-mixed) | 0.2
| 1 |
| Black Mixed | 0.3
| 2 |
| Indian | 1.7
| 10 |
| Pakistani | 1.2
| 7 |
| Bangladeshi | 0.5
| 3 |
| Chinese | 0.3
| 2 |
| Other groups | 1.2
| 7 |
| |
| 600 |
| Source of column 1: ONS, UK 2002, Table 9.5
|
| NB, Excludes Northern Ireland, and those in GB who did not state their ethnic group.
|
| January 2002 |
|
