Penny Mordaunt MP
How the draft Bill fulfils its objectives
The Draft Bill does not explicitly state an objective.
The Foreword quotes from the Coalition's Programme for Government,
'We will establish a committee to bring forward proposals for
a wholly or mainly elected Upper House on the basis of proportional
representation. The committee will come forward with a draft motion
by December 2010. It is likely that this will advocate single
long terms of office. It is also likely that there will be a grandfathering
system for current Peers.' To this extent the mere existence of
the Draft Bill can be considered a mark of success, and it does
indeed suggest single, long, terms and a grandfathering system.
Beyond the objectives established in the Programme
for Government it is left to the reader to divine what the Bill's
authors seek to achieve by its eventual enactment. The only discernable
over-arching objectives are to ensure that Britain is a 'modern
democracy' in which 'those who make the laws of the land should
be elected by those to whom those laws apply', and to 'move power
from the centre to the people'.
'Modernity' for its own sake is no sort of objective
at all, and I invite the committee to consider the state in which
we would now be if each successive generation of politicians had
sought to sweep away what had come before in the name of modernity.
It should be noted that under the conventions which currently
obtain to ensure the primacy of the House of Commons (conventions
which the Draft Bill aspires to protect, and a subject to which
I will return) no law can be passed without the assent of the
democratically elected representatives of the people. As such
it is hard to see what 'the people' gain from the proposed reforms,
whilst it is very evident what will be lost. In these circumstances
readers of the Bill cannot but infer that the objective is not
the enhancement of our democracy, but an assault on an institution
to which the Bill's promoters are ideologically and irrationally
opposed.
The Draft Bill lauds the referendum on the Westminster
voting system as a means of 'moving power from the centre to the
people', and yet, and despite the fact that the people told politicians
on that occasion that the status quo was preferred, there is no
facility by which the public can voice support for the House of
Lords as it is currently constituted. Is this respect the Draft
Bill can only fail the sophistic measure of success which is meeting
its own objectives.
I will address narrower objectives relating to specific
clauses below.
Powers and functions of the House of Lords, the
relationship between the House of Commons and the House of Lords,
and the primacy of the House of Commons
The Draft Bill does not seek to alter the powers
of the House of Lords, but leaves conventions in this respect
to operate as happens currently. This is right and proper; however,
the sub-clause on maintaining the primacy of the House of Commons
reveals the flawed thinking and lack of awareness of history which
lies behind the entire enterprise.
'(1) Nothing in the provisions of this Act about
the membership of the House of Lords, or in any other provision
of this Act—
(a) affects the status of the House of Lords as one
of the two Houses of Parliament
(b) affects the primacy of the House of Commons,
or
(c) otherwise affects the powers, rights, privileges
or jurisdiction of either House of Parliament, or the conventions
governing the relationship between the two Houses.'
Parliament cannot bind its successors or be bound
by its predecessors, but it behoves every politician to recognise
that he is but a temporary placeholder, that he has a duty as
a custodian of our unwritten constitution and that it ill-becomes
any politician to presume a perspicacity which has eluded previous
generations. Our unwritten constitution allows for evolution to
meet pressing needs, as has happened on numerous occasions in
the past, notably during the Glorious Revolution, with the Great
Reform Act and its successors, and the Parliament Acts. Promoters
of the Draft Bill must explain what great constitutional crisis
they seek to avert. The Deputy Prime Minister has confirmed to
the House of Commons that House of Lords reform is 'not a pressing
need' (Hansard, 5 July 2011: Column 1349), preferring to see it
as 'an enduring need'; however, he could only define that need
in terms similar, but different in one key respect, to those found
in the Draft Bill, 'those who shape the laws of the land should
be held to account by people who have to obey the laws of the
land' (Hansard, 5 July 2011: Column 1349). This is an argument
of change for the sake of change; a lazy argument invoking the
will of the people without any supporting evidence. As explained
above, the democratic element of Parliament, the House of Commons,
represents the will of the people, and its will cannot ultimately
be gainsaid by the House of Lords—once that principle is
recognised any argument predicated on 'modernity' or 'better democracy'
is fatally undermined. Would promoters of the Bill claim that
Britain is not a democracy? I hardly think so.
The failure to observe the true nature of the constitution
is evident in the Bill's insistence that the primacy of the House
of Commons could, and should, endure once there is an elected
Upper House. The only reason that the Parliament Acts have legitimacy,
the only reason that the House of Commons can legitimately claim
the power of the purse, is because it is elected in contradistinction
to the House of Lords. It might be that under the provisions of
the Bill this arrangement would continue for a time, but it will
matter little that the Parliament Acts and what must surely be
the House of Lords Abolition Act are on the Statute Book when
an elected Upper House is in accord with popular opinion in opposition
to the will of the House of Commons. When that scenario occurs,
and it surely will, a constitutional crisis will ensue as the
traditional and proper forces of the constitution begin to be
felt. The position of the Commons will only be weakened by the
reduction in the number of MPs and the concomitant increase in
the 'payroll vote' as the number of ministers remains the same.
When a government of whatever stripe whips through an unpopular
measure and asserts its cherished primacy against an elected Upper
House it is inevitable that the latter, with the weight of popular
support behind it, will push back. It will do so with a mandate
achieved through a system of proportional representation which
according to many of the very people promoting the Draft Bill
is a better and more democratic system of election. This situation
will create the agency for change which is absent from the current
debate and will provoke calls for further reform.
It must be understood that an elected Upper House
would not simply fill the void left by the abolished House of
Lords. The House of Lords has a settled and accepted view of its
position in the constitution, a new House composed of elected
members could not be expected simply to conform to that view.
Before any challenge to the primacy of the House
of Commons is deprecated we should consider why it is such a worthwhile
principle. The value and legitimacy of the convention is that
the Commons is the elected House, from where the majority of ministers
are by convention drawn and whose support must be maintained if
a government is not to fall. If the Upper House were an elected
chamber, why should these conventions endure? An elected Upper
House could assert with some force that it would be the chief
instrument by which the government is held to account, citing
once again the increased ease with which the government could
get its business done in the Commons following the Parliamentary
Voting and Constituencies Act 2011. The House of Commons will
increasingly be regarded as the domain of the executive which
must be held to account by the Upper House. The promoters of the
Bill must accept that to change the composition of the Upper House
is to inevitably change the dynamic between the two Houses.
Electoral term of an elected Upper House
As was suggested in the Programme for Government,
the Draft Bill proposes single, long, non-renewable terms for
elected members of the new Upper House. Terms of 15 years would
be staggered with a third of members elected at successive elections.
In the passage on the electoral term, the Draft Bill
proposals recognise that members of the Upper House should have
a 'distinct role' from that of MPs, that the House should show
independence of thought, and that if people of quality are to
be attracted that they must be allowed to sit for a substantial
period of time. Under these criteria it is hard to see why there
is any talk of reform at all, but they do hint that the authors
of the Bill are alive to the challenge an elected House could
pose to the Commons—a suspicion confirmed by the reason
for proposing staggered elections, 'the reformed House of Lords
would never have a more recent mandate than MPs'. It is as though
the Bill's promoters are fighting a rearguard action against their
own creation. Evidently the ideology of change and the cosmetic
appeal of modernity came before consideration of the realities
and consequences of the reform they propose. We are entitled to
wonder what the point is of giving members of the Upper House
a democratic mandate only with the same instrument to seek to
undermine that mandate. The Bill implies that a mandate is devalued
over time and that a mandate more recently received is superior.
On that basis our concern should not be with creating a two tier
structure in the Upper House but a four-tier system, as the most
recent members will assume an elevated position. If that notion
is rejected by the Bill's supporters then they cannot contend
that the Upper House's older mandate is less valid than that of
the House of Commons. That a mandate delivered almost fifteen
years previously is accepted as valid by the Bill's proposers
is demonstrated in the suggestion to use the results of the last
election in the relevant constituency to fill vacancies in the
Upper House. In these circumstances, the fact that staggered elections
would mean 'the Government of the day would be unlikely to have
a majority in both Houses' would only reinforce the sense that
it is the Upper House's responsibility to challenge the executive
in the Commons.
A third of members would be elected every five years
at the same time as general elections. The Draft Bill does appreciate
that in our Parliamentary system governments can fall before the
end of their term, even if the original draft of the Fixed Term
Parliaments Bill did not. Should elections to the House of Commons
be necessary before the next Upper House elections are due the
Bill proposals confirm that the term of the latter would not be
cut short. What is not explained is whether the members of the
Upper House next due to leave would have their term extend to
the next general election, and the other tranches their terms
by the same period of time, or Upper House elections will forever
be out of kilter with those to the Commons.
Perhaps the chief irony of the proposals on the term
to be served by members of this new Upper House is that they will
be non-renewable. The principle seems to be one of democratic
election but not democratic accountability, and consequently we
must ask whether the Deputy Prime Minister will oppose the Bill
as it stands, for as was mentioned above he thinks that 'those
who shape the laws of the land should be held to account by people
who have to obey the laws of the land' (Hansard, 5 July 2011:
Column 1349).
There is no clearer evidence of the motives for this
Bill than the contradictory and self-defeating proposals on terms.
Electoral system
The Bill proposes the use of the Single Transferable
Vote to ensure that members of the Upper House have a direct mandate
as individuals but on a proportional basis so that the mandate
is distinct from that of Members of Parliament.
As has been said above, the use of a proportional
system would propagate further debate about the validity of PR
and First Past the Post. Each House could make an argument that
it has a superior mandate based on the system used to elect it.
Even though STV has large multi-member constituencies
members of the new House would still rival Members of Parliament
and challenge their relationship with constituents. If an MP does
not agree with a constituent, or a whole tranche of constituents
on a polarising matter, the immediate recourse will be to go to
the elected members of the Upper House who sit for the area. This
will provide fuel for a challenge by the Upper House to the House
of Commons. It is naive to pretend that this will not happen.
The Bill proposals might naively assert the benignity
of STV in terms of the relationship between the two Houses, but
the pretence that STV will ensure independence from the party
control inherent in list systems is simply disingenuous. Members
might be elected as individuals, but those individuals will represent
parties and the mechanism by which they are chosen would be completely
without Parliament's control. Current appointed members must be
vetted by the Statutory Appointments Commission, of course.
Transitional arrangements and Statutory Appointments
Commission
Option 2 and Option 3 for transitional arrangements
are contradictory. Is it important to have the value of experience
in the chamber or to have fewer members? Option 1 seeks a middle
way, but all options would create tiers of members and encourage
elected members to claim superiority over their fellows. In any
case, all options are unacceptable in that they include the introduction
of an elected element to the House of Lords to which I object
absolutely.
The Statutory Appointments Commission is an acceptable
method of appointment and should be considered as part of the
reform of a non-elected House of Lords.
Ministers
The terms proposed make sense under the Bill's own
rationale but are unacceptable in that they allow for election
to the Upper House.
Hereditary Peers
I am content with the arrangement which obtains under
the House of Lords Act 1999.
The Established Church
The established Church of England should continue
to be represented in the House of Lords. The Bill's provisions
on the Lords Spiritual, as with those on ministers, conform to
the internal rationale of the Bill, but are unacceptable in the
broader context of the reform debate. I advocate the retention
of the right of the holders of the titles of Archbishop of Canterbury,
Archbishop of York, Bishop of Durham, Bishop of Winchester and
Bishop of London to sit in the House of Lords on an ex officio
basis along with 21 other Bishops of the Church of England.
To remove the Lords Spiritual from the House of Lords
would be an attack on the very heart of the constitution.
Pay and Pensions
There is an assumption made by the Bill's authors
that the public support elections to the Upper House—obviously
so as no referendum is to be held. It is debatable whether there
would be support for the creation of another tranche of salaried
politicians.
Other bi-cameral systems
Direct comparison with other nations' institutions
can be misleading. The British constitution has evolved over centuries,
drawing from the nations which combined to form it. The institutions
of nations which have been founded, or re-founded, at a definitive
point in time with a written constitution following some great
crisis or violent upheaval can be of little relevance to us. We
should also be wary of comparisons with polities in which the
separation of powers is more pronounced—the presence of
the executive within the legislative branch in the British constitution
renders such an exercise of limited value, unless a much wider
reform is proposed.
Name of the reformed House
The present generation of politicians has no right
to cast aside centuries of tradition merely because it suits the
personal view of some among it of a 'modern democracy'. The notion
that the peerage would 'revert to being an honour' is unfounded
as the concept of the peerage has always had a Parliamentary connotation—it
would be an innovation to break the link entirely.
Though the name House of Lords has been used throughout
the Bill for want of another, the terms included within the Bill
indicate that it would not be maintained once elections were made.
As members of the peerage would be eligible for election to either
House the name of the House of Commons would also be questioned.
Together or individually the renaming of either House would be
wanton constitutional, and cultural, vandalism.
Ceremonial traditions
The ceremonial traditions of the House of Lords and
those of Parliament which occur in the House of Lords chamber
should be maintained in every particular.
Referenda
I do not necessarily advocate a referendum on the
matter of reform of the House of Lords, but I do note that the
refusal to offer one is at odds with the principles the Bill's
promoters advocate and is in contrast to that held on the less
significant constitutional matter of the voting system for Parliamentary
elections. I have been advised by the Minister of State by letter
that the Government has no definition of an issue which warrants
a referendum or the circumstances in which referenda should be
held. The Minister continued that it is for Parliament to decide
which issues are put to the people in a referendum. This does
beg the question of how it was possible for the Government to
decide to advocate a referendum on the voting system, and does
nothing to dispel the notion that the Bill represents the worst
of coalition politics.
I close by urging committee members to remember that
the constitution and centuries of tradition are not the play things
of transient politicians, but should be respected and cherished.
12 October 2011
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