In
a parallel approach, the term 'settled will' of Parliament has
been bandied around despite the lack of a vote in this Parliament
for HoL reform. If left unchallenged, a worrying precedent will
be set that gives a Government implied consent to cherry pick
results from a previous Parliament.
Salisbury Convention
It is my understanding that the Salisbury-Addison
convention does not apply to a coalition agreement although, as
Baroness D'Souza noted in November 2010, conventions can develop.
The proposals include 12 seats reserved for bishops.
Since they are in addition to the 300 seats reserved for other
Members the target of an 80% elected HoL can never be met, whether
a Government chose to appoint Ministers outside of the 300 or
not. Of course, this would apply to 100% or any other ratio. Moving
such Members to the appointed component would not only dilute
this element but would necessitate re-writing large parts of the
Bill.
The Salisbury convention should not apply to this
Bill as it stands.
Costs
No estimate is offered for the increased running
costs of a new HoL and the timing of this Bill is completely out
of step with the prevailing mood of the public, facing severe
cuts and general uncertainty, and coming straight after the debacle
of Parliamentary Member's expenses.
It is inconceivable that MPs will wish to be associated
with this Bill if they value their seats.
Observations on specific proposals
The aims of this Bill may be summarised thus:
- At least 80% of House of Lords
(HoL) members must be elected;
- The system of HoL elections must be different
from House of Commons (HoC)
- The number of members will be set at 300;
- All members will receive pay and pension benefits
in addition to the existing system of allowances;
- The Government fully endorses the existing role,
functions, responsibilities, and status of the current HoL and
seeks to retain these benefits.
Below, specific details are considered on most of
the individual proposals (though sometimes grouped), in the same
order as they appear in the White paper, bearing in mind the aims
above. Proposals that are devoted to procedure have generally
been passed over.
Functions, and Powers (Items 2-6, and 7-11)
The Government indicates that there should be no
changes to existing functions and powers of the HoL.
Although democratic eligibility is the Bill's central
plank, the less than democratic conventions and relationships
between the two Houses are to be retained, in order to preserve
the predominance of the HoC. In particular, Item 8 explicitly
warns the existing HoL not to reject a Bill which has been endorsed
by the HoC, "…whether or not a Bill has been included
in a Manifesto…" , a reference to the Salisbury convention.
Size and Composition (12-23)
The increasing number of Members in the HoL has come
under some fire, as exemplified by Meg Russell, UCL Constitution
Unit, in her paper, "House Full: Time to get a grip on
Lords appointments", April 2011. Along with 18 other
renowned experts in the field one of her researched recommendations
was to set the overall number to 750 Members, and so the Government's
arguments used to set the number to 300 are curious.
For every person who criticises the size of the HoL,
at least one other will criticise the lack of real world experience
in the HoC. The proposal used recent figures to show that the
average daily attendance was 388, roughly half of the existing
total, leading to a guess that 300 would be "about right"
given that the new intake would be full-time. By using back-of-an-envelop
arithmetic the value of having the current wide range of experience
and expertise will be reduced rather than concentrated. Is it
the intent of this Bill to rely on the wisdom of the HoC, or bring
in external advisors, or hope that voters operate as a hive and
choose the best of the diverse every time? And what does full-time
mean, given that their time-table correlates largely to the amount
of business of the HoC? Will Government be under an obligation
to set a maximum amount of legislation per session? Will wash-up's
be the norm rather than the exception, a device of weakness rather
than strength?
Item 22 specifically asks for views on the balance
of elected and appointed members. A wholly elected HoL is not
available due to the inclusion of Church of England bishops (Item
91).
Term, and Timing of Elections (24-25, and 26-27)
Democracy requires some form of individual accountability
which is difficult to achieve if Members are permitted to serve
only a single term. A term is defined as three 'normal' Parliaments,
an implied total of 15 years, in order to attract able people,
and to reduce the chance of a Government having a majority in
both Houses. Item 25 assumes that an overall majority would be
undesirable in the HoL: between 1979 and 2010 there was one change
of governing party in the HoC, with more landslides than simple
majorities. Together with the landslide rejection of AV an overall
majority is demonstrably popular.
However, a Parliament may not last five years. In
addressing this issue (Item 27), skipping elections on the basis
of unfairness to Members reads as the needs of Members should
override the wishes of voters. If there are consecutive short
Parliaments the composition of the new HoL is much less likely
to meet other criteria of the Bill, such as is suggested in Items
25 and 26.
Item 56 indicates that appointments by HOLAC will
only be recommended after the results of elected members are known.
Currently, the time between recommendation and appointment is
indeterminate, and Item 59 proposes that this will not change.
Common sense would suggest rather than leave the chamber short
of Members, that those due to be replaced stay on until all appointments
are resolved. However, this could create new problems in cases
of suspension or vacancies, and the exact date when a Member would
be eligible to stand for election as an MP.
Electoral System (28-34)
This section, taken together with others, is a tangle
of contradictions in relation to the status of new Members: it
is not clear if they will be representatives of a district or
representatives of the HoL. Item 30 discusses the 'democratic
mandate' while Item 32 stress the importance of a 'personal mandate'.
(Item 111 also denies that Members will have constituency duties,
but Item 52 does not want voters to be under-represented.) Item
32 also expresses the desire that political allegiances should
be secondary to that of candidates yet Item 28 states that PR
systems are "designed to ensure" the PR of parties.
Item 33 dismisses other PR systems because STV gives more power
to the voter but elsewhere (Item 8, for example) there are many
instances where the Paper makes clear that a vote for HoL elections
will carry less weight than a vote in an HoC election. Returning
to the intention that Members should be full-time in Westminster,
we might assume that, after all, Members will not directly represent
their voters, an interesting interpretation of democratic authority.
It should be noted that if Members are representatives
of districts, this will introduce the HoL to new concepts, such
as the West Lothian question at a time when the Act of Union could
be vulnerable, and issues over party membership including how
Sinn Fein should be accommodated.
The conclusions in Item 34 are the written equivalent
of a Gallic shrug.
Women in Parliament (48-49)
Although there is evidence to support the claim that
women are more likely to be elected under PR than other voting
systems, many more could be in Parliament now if there was genuine
will from those who have the power to appoint. It is a pity that
the 'opportunity to consider' doesn't appear in the Bill; taken
together, Items 55 and 59 rather suggest the opposite.
Franchise (50-51)
On the back of this response, I would like to widen
the discussion to investigate the disenfranchisement of British
ex-pats after an arbitrary 15 years away from the homeland. Most
ex-pats have no intention of discarding their passport simply
to vote in another country. There are several non-contentious
ways of resolving this bit of British idiosyncrasy.
Transition (69-86)
Item 11 acknowledges that a 'delicate balance' currently
exists between the two Houses, one that has evolved over their
time yet transition will progress over three elections, between
six and 15 or more years (if Item 27 remains unchanged). However,
the consequences of several short Parliaments from 2015 are not
addressed and since, in the event that this happens, we could
assume that the country would be, at the very least, unsettled.
Hereditary Peers, Church of England Bishops (87-103)
The arguments presented for retaining or abolishing
reserved places in the HoL are inconsistent with modern values
and laws of equality. If there is a constitutional issue which
causes bishops to be excepted then their right to vote in the
HoL should be removed.
No provision is made should the Church of England
change its own rules which may impact further on this Bill's generous
permit to self-select.
Remuneration, Salaries, Allowances, Governance,
Pensions, Tax (104-124)
Since it is not clear whether new Members will be
representatives of a district or the HoL, it is not clear whether
new Members should have a lower, higher, or the same salary and
conditions as MPs (Item 111). By extension, whether new Members
will be entitled to an allowance for second homes will depend
on whether they have responsibilities to their district.
There is no indication as to the future of Cranborne
money and the possible extension of the more lucrative Short money
to cover both Houses. The choice of the electoral system will
have an impact.
Expulsion, Resignation, Recall (125-139)
Item 131 intends there to be no time limit for suspension
of a Member, presumably on full pay. No reason is given to change
the existing rules. It is not clear if time under suspension would
be counted towards a Member's allotted term.
Disqualification—140-150
Item 141 allows for a convicted person to become
a Member if they served up to and including one year in prison
only. Rehabilitation must continue to be one of the primary aims
of justice yet this clause is contentious for a number of reasons.
- it makes no distinction of
the crime committed—a sentence of up to two years (assuming
50% time served) covers too wide a range of criminal acts
- there is no provision for disqualification during
the licence period
- there is no provision on special cases such as
IRA convicts
- Presumably, HOLAC would be expected to gain knowledge
of past criminal activity before recommending appointments, as
Item 55 sets out:
- Since 2001 HOLAC has made recommendations on
merit and against set criteria which include personal qualities
of integrity, independence and the highest standards of public
life.
- but similar information would not be available
to the electorate.
There are likely to be other issues but this small
selection should be sufficient to include safeguards that put
the public first, not the candidates. At least two other options
are available: disqualify for all criminal convictions regardless
of time spent in prison or not, or provide that candidates must
publicly declare all convictions prior to election or appointment.
The Explanatory Notes (461-473) discusses some of
the points above, and considers the impact of the European Human
Rights Regulations but I disagree with the conclusions. In particular,
by qualifying a convict based only on time served rather than
the crime plus time served ignores the whim of the judiciary.
My personal preference is to give HOLAC or voters
the responsibility of testing qualification by ensuring candidates
declare all wrongdoing, both civil and criminal, prior to selection.
Non- disclosure would result in automatic suspension or recall.
7 October 2011
