Electing the Lords: Issues 3 – Expertise

January 21, 2011 Leave a comment

The third issue surrounding election of the Upper House is to do with the House’s reputation for expertise.

The Commons relies on the Lords immensely to help it do its work. Often, the Commons’ schedule is so packed that Bills arrive in the Lords from the Commons virtually untouched and huge reams of complicated legislation is overlooked and unscrutinised.

In recent years the Lords has produced on average 4-5,000 amendments to legislation per year.  The Commons (and, by extension, the government) accept on average 40% of these amendments, and paradoxically, the majority of the amendments that are accepted are the most important and substantive changes. This is because the Government generally accepts that the Lords know what they are talking about.

The present House encompasses peers from a wide range of fields in British life.  Edward Pearce explains why election cannot replicate this (1):

‘In any election for the Upper house, candidates will be chosen and promoted by party machines and voted for essentially by supporters of parties.  It will palely reproduce the current Commons model…The virtues of a good second chamber are those of intelligent contradiction, of debate continued beyond the lines of party militias.  It requires bright, specialist knowledge in all the key fields of life and work.  The life peer system has done this and not done it at all badly. The present House of Lords breaks every rule of the pluralist handbook, yet it passes the test of troubling the executive.

‘A great and expanding flaw in modern politicians is that they are precisely, often exclusively that – politicians.  They have begun early at university, in party clubs, have worked in the outer office of a Minister, at party headquarters or at the elbow of an MP.  They have never tied an artery, sat up with a company’s books, sold a bond or plastered a wall.  In an elected House, yet more politicians – hermetically professional, probably inferior – will fill the spaces required.’

And in May 2010, Paul Vallely of the Independent agreed (2):

‘The modern peerage is made up of a huge range of expertise: scientists and surgeons, lawyers and landowners, businessmen and bishops, novelists and nurses, spies and former diplomats.  Their title is a recognition of excellence or eminence in their field…it offers considerable real life experience to counter the myopia of professional politicians.

‘What would an elected second chamber be like?  It is no use saying that existing Lords’ members could stand for election; most wouldn’t.  They are past the time in life where they need to be endorsed or seen to achieve.  They would retire to their books, telescopes and gardens.  Their replacements would be career politicians, probably second-rank ones at that – young politicos en route to the Commons, superannuated local council cronies, and representatives of each party’s grateful dead.  It would be a place of seedy deals and the low politics of party whips.  That is a notion attractive only to party managers who would breathe a sigh of relief at an upper house that would not rock the leadership’s boat.  The chamber which is supposed to be the final check on executive power would now be firmly within its control.’

I’ve never heard a single convincing explanation of how an elected senate would be of higher quality than the existing members of the House of Lords, nor how the UK would somehow would be better governed than it is now.

And Donald Shell, an accomplished constitutional expert, has also weighed in (3):

‘A healthy democracy needs informed debate at its centre…Both chambers might do this, but the populism involved in competitive party politics inhibits the extent to which informed opinion can be the driver of debate in the Commons.  A second chamber with expertise and experience of a more varied kind can help to serve the public in a different way.’

Of course, there will inevitably be gaps in the Lords’ expertise, particular on matters relating to their own constituencies and on social policy. But remember what has been said about the complementarity of the two chambers of Parliament at present. MPs are also very good generalists, jacks of all trades, masters of none, meaning they can plug these gaps with their capabilities. An elected Senate would undo this – instead of aiding the Commons, it would replicate the same fields, weakening the abilities of both.

Going back to the fact that the Lords has a high success rate in changing Bills (in part 1) – does this challenge the right of the elected Commons to decide the law? Not at all.

Despite the huge level of changes they make, the Lords very rarely seeks to amend Bills in such a way that it would destroy the principle intentions of a Bill ( what would be called ‘wrecking amendments’).  As I said, the Lords understand their role to be complementary to the Commons, the elected Chamber, and leaves such matters to the Commons. Policy is decided by the Commons – the Lords job is to make that policy workable. At times, the Lords will see the policy in its entirety as unworkable – and if the Commons resolves to disagree, that’s what the Parliament Act is for.

The Lords’ expertise has brought itself to bear time and again in informing the work of Parliament and the Government in its deliberations.  For example, the House of Lords Science and Technology Committee has a worldwide reputation for the excellent reports it produces for Parliament.  The Lords European Union Select Committee is a vast, efficient machine, giving the British Parliament the reputation of being one of the best scrutinisers of European legislation in the whole EU. On many occasions, the government has submitted Bills to the House of Lords before the Commons with the express purpose of themselves putting their eyes over the details before going to the Commons.  Emma Crewe, in her excellent anthropological study of the House of Lords, explained how European Commissioners were normally provided with three key documents to inform them of important matters when starting out – and two of these documents were provided by the Lords Science and Technology Committee.

In fact, the Lords’ committee system itself serves to complement the Commons. Unlike the Commons, the committees are deliberately non-departmental, and instead seek to plug the gaps in between departmental remits: Communications (which deals with press, television, radio and the Internet), the European Union, Science and Technology, Regulatory Reform, Economic Affairs, and the Constitution committees all conduct brilliant work which are invaluable to the Commons and to the wider world.

I have heard the argument that specialist expertise, such as that which the Lords boasts, is irrelevant to the worth of an Upper House. The argument is that such experts should get elected if they want to do so, or that they can do the same through giving evidence to parliamentary committees. But then, British parliamentary committees do not have the power to compel the government to do anything, and their ability to bring issues to the attention of the public in a meaningful way is dependent upon the sensitivity of the subject matter. The influence of committees on the government is difficult to quantify, and it is most often the floor of the Chamber in which members make a difference. If we removed our Lordly experts, their influence on legislation and policy would be eroded, weakening the ability of Parliament to give informed and reasoned assessments of national policy.

Back to Article 2

Forward to Article 4

Sources:

1 – Edward Pearce, ‘An Elected Upper House and Other Fallacies’, Political Quarterly (October– December 2009), vol 80, no 4

2 – Paul Vallely, ‘The Lords is not perfect, but it works’ The Independent, 23 May 2010

3- Donald Shell, The House of Lords (2007), pp 166–7

Electing the Lords: Issues 2 – Upper Houses throughout the world

January 18, 2011 Leave a comment

An awful lot of people (including the Deputy Prime Minister, it seems) hold at least three misapprehensions about the House of Lords when compared internationally; namely:

  1. that elected chambers are the norm abroad,
  2. that the principle of appointment is a minority phenomenon, and
  3. that election of the Upper House is the best way to provide effective scrutiny of the executive.

Each of these is incorrect.

The truth is that election is no more common than appointment.  The most common method is in fact a combination of the two, or even indirect election.  Election, to be effective, depends heavily on its constitutional context.

An international comparison can show us under what circumstances elected chambers work well; and those is is less appropriate.  I shall attempt to do this now.

Countries with directly elected upper houses

  • United States
  • Australia
  • Italy
  • Poland
  • Czech Republic
  • Japan

Countries with indirectly elected upper houses

  • France
  • Netherlands
  • South Africa
  • India
  • Russia

Countries with unelected upper houses

  • United Kingdom
  • Canada
  • Ireland
  • Germany

Countries with a mixed-composition upper houses

  • Spain
  • Belgium
  • Mexico

A cursory glance at these lists demonstrate that while election is a plurality, it is by no means the most common.  If we also take into consideration the constitutional basis of each of these states, we can glean some more information on whether the elected upper houses actually work.

So, let’s look at the ‘elected’ list again.  Of those six, two of them, Australia and the United States, have Senates which are well known for being very independent of the Executive.  In other words, to borrow the phrase, they are congruent.  This is because both of these countries are federal, and their Senates are used to represent their constituent States and Territories.  Their Senates, therefore, provide an alternate and credible form of popular legitimacy.

The remaining four countries are unitary and parliamentary states.  The problem here, as I have described previously, is that there is no real, credible alternative form of popular representation from that which already exists in the Lower House.

We can see the effect this has on bicameral relations by consulting Gianfranco Pasquino, Professor of Political Science at the University of Bologna and a former Italian Senator.  He shows that it’s incredibly rare for the elected Italian Senate to disagree with the Lower House:

“In theory and in the Constitution, the Italian upper house is as powerful as the lower house. As has already been stressed, the two chambers perform the same tasks and, when dealing with the government, they have the same weapon: the vote of no-confidence. Therefore, in order to survive and to secure the passage of its legislation, any government must be equally preoccupied with its relationship with both chambers. In practice, however, the upper house is unanimously considered to have and to exercise less power than the lower house. The fundamental reason is political or, more precisely, has to do with a specific party phenomenon. Since the inception of the Italian Republic all the secretaries of all Italian parties have been elected to the House of Deputies, with one exception.

When the new democratic republican Constitution had to be drafted in the period between June 1946 and December 1947 only the Communists formulated strong objections to retaining a bicameral Parliament. Those who wanted the Senate to remain but be democratically transformed – that is, elected by the voters – argued their case with reference to two potential advantages: First, an upper house would play the role of a moderating element, partly because of its composition of older men. Second, an upper house could serve as a cooling-off chamber where the bills were scrutinized under less pressure than in the lower house. None of this ever proved true in the experience of the Italian republic, but institutional inertia has so far prevented any change. Indeed, the only constitutional change that has so far been approved has led to the shortening of the tenure of the Senate that initially had been fixed at six years. Following three simultaneous dissolutions of the two chambers, justified by the imperative of preventing the appearance of two different parliamentary majorities, it was decided that, starting with the 1963 elections, terms of office for the Senate would last five years – exactly as for the House. For almost 20 years there has been no additional proposal for change affecting the Senate directly or exclusively.”

So; not only were predictions about the impact of election dead wrong, but then reformers made it worse by shortening the Senatorial term.  Wonderful!

I am unable to find any specific information about the other countries, but as they are all unitary parliamentary states, like Italy, I would not be surprised if the situation was replicated.  Japan’s Upper House phases its elections (half every 6 years), but what few sources on Japan I have gleaned seem to indicate that Japanese politics has a peculiarly high degree of party factionalism, meaning that both chambers are unusually difficult for a government to whip.

So to go back to my presumptions above; election is by no means the norm.  It is slightly (slightly) more common than unelected upper houses, but even where it is applied, the success of the measure is mixed and heavily dependent on constitutional context.  Elsewhere, countries tend to opt either for indirect election, non-election, or a blend of two or all three.

I hope that this kills once and for all the myth that Britain is archaic for having an unelected upper house.

Back to Article 1

Forward to Article 3

Notes

Pasquino, Gianfranco (2002), Journal of Legislative Studies, Vol 8 (3), p.67-78

Electing the Lords: Issues 1 – Powers and Purpose

January 11, 2011 Leave a comment

My first post on electing the Lords arguably asks possibly the most important question: what do we want this supposed Senate to do? The overwhelming consensus is that the current dynamic between the two Houses of Parliament, in which the Commons is constitutionally supreme, and the Lords serves to support it with expertise and a long-term view, is both productive and desirable.  Election, in my opinion, would undermine this and take the British constitution into unknown and adversarial territory, in which the only winner can be the government.

What makes a second chamber effective?

1. Congruency and Incongruency: Tsebelis’ model

George Tsebelis, Professor of Political Science at the University of Michigan, has developed a theory on the impact of upper houses in political systems, differentiating between ‘congruent’ and ‘incongruent’ bicameralism.

Basically, congruency means coinciding, or matching; in this case, with the composition of the lower house.  A congruent upper house, even if it is constitutional powerful, is likely to agree with the lower house almost all the time, as it will match the lower house’s political makeup.  It will be echo chamber.  On the other hand, an incongruent chamber (that is, one composed differently from the lower house), is more likely to express differing points of view, as it will more likely have different types of membership and/or political makeup.

There are plenty of examples of how this works in the world.  Tsebelis gave some examples of congruent upper houses himself – the former upper houses of Sweden and Denmark.  These two chambers were made fully elected in the early 20th Century until they became pretty much valueless to policy formulation, as the replicated the lower house.  Denmark and Sweden lost little when they abolished them.  Italy’s own Senate today has a similar problem.

Elected and incongruent upper houses do exist, though: for example, the Australian Senate is elected in a very different way from the lower house and also elected via different constituencies, ensuring by and large a different majority from the lower house.  The United States Senate is also incongruent: although it shares the same voting system as the House of Representatives, but has different constituencies (the States), and neither House is as beholden to the executive as in parliamentary systems anyway.

Let’s apply George Tsebelis’ distinction of second chambers, and start with a congruent Senate – one in which the government has a majority in both Houses.  The Senate would remain silent and become an ‘echo chamber’ to the Commons – and people already complain about the relative toothlessness of the Lower House.  The result, then, as A W Bradley and K D Ewing (1) say, is that we could end up with a House wholly dominated by the political parties and, depending on election results, with the same party in control of both Houses.  In that case, there would be little prospect of effective scrutiny or revision of government business.  If there was a majority different from that of the Commons, the result may be stalemate, with both Houses claiming superior legitimacy.  This is the most likely outcome, and therefore rendering our Parliament weaker.  Incongruency tends to come with a different basis of representation from the other house, something which isn’t really being discussed by the present government, or the previous one.  There are other problems, too.

2. Core Accountability

Precious little thought appears to have been given to what relationship an elected House would have with the House of Commons.  A central principle of the British constitution is core accountability – as summarised by Lord Norton on his blog: (2)

“There is one elected chamber, through which the government is elected and through which it is accountable to the electors.  We have the benefit of a second chamber but without the divided accountability that would derive from having an elected second chamber.  The House of Lords adds value to the political process by carrying out tasks that complement those of the elected chamber.  It does not seek to challenge the electoral supremacy of the House of Commons.  It can invite the Commons to think again, but ultimately the Commons is entitled to get its way…there would be no reason why elected members of the second chamber would see the role of the chamber as a complementary one.  There would be the potential for conflict between the two.  This could lead to stalemate or more often to deals being struck.  Such deals would more likely be to the benefit of parties and special interests than to the benefit of electors.  There would be no clear line of accountability for what emerged, or, indeed, what failed to emerge.”

The British constitution is a balancing act, in this case, that of balancing the supremacy of the Commons against the support of the Lords.  This has been a key strength of the British constitution for centuries, and is echoed by such constitutional experts.

The Government agreed that the current conventions were the most desirable in their 2007 White Paper,(3) Jack Straw, Leader of the House, said:

“if this were to happen it would undermine the role of the House of Lords, and lead to the loss of much of what is valuable and successful to the current House.  Crucially, it would start to erode a vital facet of the successful operation of the House of Lords – that it can invite a Government to reconsider its specific proposals without calling into question its authority to govern…Although the primacy of the Commons is historically derived from its elected mandate, primacy no longer rests solely on this fact.  Primacy is made real by the different functions exercised by the two Houses, and their different roles.

One elected and one appointed chamber has made parliament very effective, with both chambers feeding off each other’s strengths and offsetting each other’s drawbacks (the drawbacks being detailed further on in this series of articles).  But two elected chambers would stop them from cooperating against the executive and would instead turn on each other.  This would only be to the benefit of the government.

Both chambers, being elected, would have theoretically equal claims to represent the people, and they would have in fact similar composition as elected professional politicians (on the whole) – but more on that later.

Because of this, core accountability in the Westminster system would be lost.  The impact would be that good laws would be twisted and mangled by an opportunist Opposition, and bad laws would fall through the net as most for most legislation, the devil is in the detail.  We see this all the time in the United States Congress.  With co-equal electoral legitimacies, the Commons would be less justified in calling in the Parliament Act to override the Senate when it disagrees; the result would be compromises and bargains, and from all this, the government could deny all responsibility as it was forced to accept the changes thanks to the interference of the Opposition in both Houses.  The end result would be that the public would be less able to hold the government to account.

Developments since 1999

We have seen a hint of what could be to come in the past decade.  Since 1999, with the removal of most of the hereditary peers and a permanently ‘hung’ Lords chamber, the balance of power between the two Houses has altered as the Lords has renewed vigour and a sense of legitimacy within and without, boosting its confidence in challenging the government.  We can see this in how the Salisbury Convention – in which the Lords would not oppose legislation which the government promised to introduce in a manifesto – has begun to decline, with the Liberal Democrats no longer recognising it when in opposition.

So far this increase in activity has not been at the expense of the Commons, as the Lords recognises itself as an inferior, complementary House, whose purpose is to support the elected Chamber’s work in scrutinising the government and legislation.  Indeed the two Houses have developed new ways to cooperate since 1999.  The presence of a more active and independent Lords has encouraged backbench MPs in the Commons to extract more concessions from the government, because while they can more or less ride roughshod over the whipped Commons, they cannot do the same with the Lords.  More on independence later.

The Joint Committee on House of Lords reform(4) indicated the Salisbury convention would be endangered by election:

“the continuing operation of the existing conventions in any new constitutional arrangement will be vital in avoiding deadlock between the Houses – which could all too easily become an obstacle to continuing good governance.”

It has been suggested also that the best way to prevent such damaging clashes between the two Houses would be to codify the conventions that govern the relationship between the two Houses, such as the Salisbury Convention and the Lords’ power over Statutory Instruments, and parliamentary ping-pong.  But the 2006 Joint Select Committee on Conventions(5) concluded that this would be difficult and undesirable.

Conclusion

The obvious danger then, is that electing the Lords would not only make the Upper House more powerful (on the face of it, a good thing), but would in fact throw the balance of power between the Houses of Parliament way off kilter and spark at least a generation of energy-consuming constitutional crises.  This is clearly not a good thing. Meg Russell and Maria Sciara, Senior Research Fellows at University College London’s Constitution Unit, writing in 2007 (6), summarised it well when they said that a compromise that democratises the Lords without making it stronger is ‘both logistically and tactically impossible’.

A Senate would not enhance the capability of Parliament to scrutinise the executive.  Rather, depending on the congruence of the two chambers with each other as mentioned, the Senate would at times agree with everything the Commons says, and at other times weaken Parliament’s ability to hold the executive to account by escalating infighting between the two Houses.  More likely there will be a combination of the two scenarios.

Given this, and that the current arrangement ensures one chamber through which the government is accountable, changing the composition of the Lords would reduce the value of the second chamber altogether.  The consensus both inside parliament and among the world of learned constitutional scholars is that the present Lords, when it disagrees with the Commons (which it does often), is far more likely to disagree on principled, constructive matters, based on expertly attained knowledge, without at the same time being overly obstructive to the broad principles of a government Bill.  Some would consider such an arrangement to be poor, as they consider the best way to measure the effectiveness of a legislature to be how often it kills a bill stone dead – wrong; that’s sabotage.

Put simply, the composition of the Upper House should be closely tied to its functions.  I’ll restate the question: what do we want the Upper House to do? If, as people say, they want the House to continue doing what it does so well now (and they have – check this out), then election not the answer.

Back to Article 0

Forward to Article 2

Sources:

1 – Ministry of Justice, An Elected Second Chamber: Further Reform of the House of Lords (July 2008)

2 – A W Bradley and K D Ewing, Constitutional and Administrative Law (2007), p 186.

3http://nortonview.wordpress.com/2010/05/22/no-to-pr-and-an-elected-second-chamber/

4– Leader of the House of Commons, The House of Lords: Reform (February 2007), Cm 7027, p 20.

5– Joint Committee on House of Lords Reform, House of Lords Reform: First Report (December 2002) HL Paper 17, HC 171, paras 11 and 12.

6– Joint Committee on Conventions, Conventions of the UK Parliament (November 2006), HC 265, HL Paper 1212, p 76.

7– Meg Russell and Maria Sciara, The House of Lords in 2006: Negotiating a Stronger Second Chamber, The Constitution Unit (January 2007), p 11.

8–  Meg Russell, ‘Views from Peers, MPs and the Public on the Legitimacy and Powers of the House of Lords’

Electing the Lords – A good idea?

January 7, 2011 Leave a comment

Since at least the 1911 Parliament Act, there have been calls to elect the House of Lords. The Act’s preamble looked forward to a House based on popular suffrage. 1968 was the last time that a government came close to electing the Lords; the Bill failed due to collusion between Labour and Conservative backbenchers.

In 1999, the election issue was fully revived by the expulsion from the House of 90% of the hereditary peers, creating an almost entirely appointed second chamber. The Labour government declared this was to be the ‘first stage’ in Lords reform – implying a second reform, in which the House presumably would be made fully elected. But despite over ten years of opportunity,  Labour was no closer to abolishing the  Lords.  Now, we have a Conservative/Liberal Democrat coalition which has declared its intention to present draft legislation in 2011 for a fully or partly elected second chamber.

In the past few years all three of the main parties have seemingly all come to the same conclusion – that the Lords should be replaced by a fully or mainly elected second chamber.

Reform of the House of Lords is all well and good.  I am in favour of reforming the Lords, but I consider election of the Lords to be a dangerous and ill-considered idea.  Naturally, many Lords share this view: in June 2009, ComRes conducted a poll of 100 peers and found that only 9% supported an elected House of Lords and 18% a partly elected House.  48% favoured a fully appointed House (1).

The public’s wish for an elected second chamber shouldn’t be trusted too much either.  Ask anyone if they’d like something to be elected, and they’ll likely favour electing it – who wouldn’t?  Vernon Bogdanor notes the inherent contradictions in the public’s supposed desire for an elected upper house(2):

The members of the Wakeham Royal Commission on the House of Lords, which reported in 2000, were told by many witnesses that the Lords should be elected.  The witnesses were then asked whether they favoured an upper house which replicated the Commons…They of course did not.  They wanted an upper house without party politicians which could continue to undertake the valuable work currently done by the House of Lords.  Yet, in every modern elected upper house, elections are organised by political parties and run by professional politicians.

The vote in the House of Commons in March 2007 undoubtedly created a new political climate in favour of a ‘popular’ upper house. But an upper house elected on a low turnout and peopled with anonymous nonentities whose only qualification is long party service would be likely to devalue democracy rather than improve it.

I contend that  proposals to elect the House of Lords are seriously flawed, and replacement of the Lords by an elected ‘Senate’ (shall we say) would destroy an institution which brings real added value to the work of Parliament, and replace it with a Chamber which would be incapable of reproducing its present strengths and devoid of any additional strengths.

It would have a diminished level of expertise;

It would be less independent than the present House;

It would fail to represent a credible alternate national constituency;

It would be considerably more expensive than the present House; and

It would sacrifice one source of legitimacy for another.

I won’t be entirely negative, though; I will propose a more constructive reform which will address some of the main problems with the existing House.

I will not be touching upon the presence of the hereditary peers or the bishops of the Church of England (which constitute a tiny proportion of the Lords), until the final section touching my proposals for reform.  I may be repeating myself from time to time – the issues relating to election are numerous and interlocking, after all – so please just bare with me and I hope that my meaning and the intricacies will become clear.

Onward!

Sources:

1 ComRes, Peers Panel Survey: An Independent House (June 2009)

2 Vernon Bogdanor, The New British Constitution (2009), p 171

Proportional Representation in New Zealand

November 3, 2010 5 comments

I was fortunate enough to attend a talk last Wednesday in Parliament.  The hosts were the NZ-UK Link Foundation and the Commonwealth Parliamentary Association.  Presenting were Professor Margaret Wilson, former Speaker of the New Zealand House of Representatives, and Professor Vernon Bogdanor, Professor of Government at the University of Oxford.  Both speakers are firmly in favour of proportional representation.

The two speakers discussed New Zealand’s experiences with PR since its instigation in 1993, and the lessons the UK could learn from it.  Originally using FPTP like the UK, New Zealand now uses what it calls ‘Mixed-Member Proportional’ (MMP), which is better known within Europe as the ‘Additional Member System’ (AMS).  The basis of the voting system is that each voter gets two votes: one for a constituency and one for a party list.  The calculated combination of these two votes allows broad proportionality of votes while ensuring a constituency link.

In deference to the speakers, I have chosen to refer throughout this post to MMP, but in other posts, when dealing with electoral reform, I will most likely resort to the more familiar AMS.

NZ’s relevance to the UK

Professor Bogdanor hoped that there was much for Britain to learn from NZ’s experiences.  As in NZ, he felt that the adoption of PR in the UK wouldn’t require any drastic changes in how governments are formed or Parliament works.

NZ and the UK both have unwritten constitutions and, like the UK (and now Australia, as well as Canada) has a hung parliament.  The difference in New Zealand however is that hung parliaments are now the norm, with no party having gained an absolute majority since MMP was adopted.

There are differences too.  New Zealand has a unicameral Parliament (no Upper House), and fewer minor parties than the UK.  Of 19 minor parties in NZ in the FPTP era, only 7 received MPs.  There is also a slight difference in political culture – while in the UK, the largest party is expected to get the first shot at forming a government, there is no such expectation in NZ.

The 1992 and 1993 referendums

Professor Wilson explained that the adoption of PR in NZ was quite accidental.  Before 1996, NZ elections were carried out with first past the post, but there had been occasions in which the largest party in terms of votes did not get the most seats, resulting in calls for reform.  Additionally, respect for Parliament and politicians had declined sharply, with 44% expressing respect for them in a 1992 poll.

In the 1987 General Election, David Lange, the then Prime Minister, announced he would support a referendum on electoral reform before the 1990 election.  Professor Wilson suggested Mr. Lange misread his briefing notes when he made the announcement – oh dear.  It didn’t transpire, but the National Party leader, Jim Bolger, made a similar pledge in 1990.

There were two referendums in the end; the first referendum, in 1992, was principally advisory, and gave the electorate two questions to answer.  Question 1 asked if they wished to abandon FPTP as a means to elect the Parliament; question 2 then gave them a choice of  four different systems with which to replace it – AV, MMP, STV, and List.

As you might have guessed, Question 1 was endorsed, and Question 2 had MMP/AMS adopted by 84% of those who voted – but with only 55% turnout.  Nonetheless, 84% was a clear endorsement, and in 1993 a second, ‘binding’ referendum was held, which would decide firmly whether the change was to take place.  On a turnout of 82% (as the referendum was held simultaneously with the General Election that year), 52% endorsed MMP.

New Zealand’s PR Experience

There were fears that a Westminster system would not be able to handle PR too well, and there were questions in particular about the role of the Governor-General, New Zealand’s representative of the Queen.  In the event, these fears were unfounded, and the parliamentary apparatus adapted with few hiccups.  The Governor-General kept well away from government formation, and Professor Bogdanor felt that the same could be said of the Queen here.

In the run-up to the change taking effect, scheduled for the 1996 General Election, a bipartisan select committee was established in the Parliament to rewrite the House’s Standing Orders to accommodate the new system.  Additionally, the Cabinet Office took the initiative and prepared a living document, known as the Cabinet Manual, to inform the means by which government would be formed and change after each election.  This Manual continues to evolve with each new situation.

The Cabinet Manual provides guidelines on how civil servants are expected to behave during minority governments, coalitions, and in the period of government formation following the collapse of a government, namely absolute neutrality.  Not much changed from their role here in the UK, then.

Government formation tends to be in the form of informal back-room negotiations between party leaders and advisors, and the final deal is approved by party caucuses.  For the two major parties, Labor and the Nationals, the priority is to become a governing party.  For minor parties, the priority is to be in a position to exert influence over the major parties, by threatening security of supply and/or confidence, or perhaps even to join the government itself.

An innovation in making these negotiations easier has been the rise of what is called ‘agree to disagree’ provisions, which allow minor coalition partners to officially dissent from government policy in specified areas, but are still duty bound nonetheless to vote in favour of the policy they oppose.  Dissent in policy areas outside of ‘agree to disagree’ provisions is unacceptable: they must be arranged in advance.

Professor Bogdanor was dismissive of the very principle of such provisions, although he observed that it could already be being used here, in the shape of the Lib Dem exemption from support on trident renewal.  He felt it makes the government of the day appear ridiculous and only undermines its credibility.  It can only be a temporary measure.  It can also be problematic to tell when the party is speaking for itself or for the government.  There was deep embarrassment, for example, when an NZ foreign minister dissented from the government line and caused a bit of a stink with foreign governments.  Since then, it has been made clear that foreign policy is exempt from ‘agree to disagree’ provisions.

There have been some frustrations for the electorate.  In the 1996 election, voters for the small party, New Zealand First, expecting the party to coalition with Labor after the election (and encouraged by NZ First’s savage attacks on the Nationals), gave their List votes to Labor.  They were, unfortunately, let down – NZ First joined with the Nationals.  At the next election, in 1999, NZ First lost most of its seats.

The impact on Parliament

Under New Zealand’s MMP system, the FPTP-side candidates are chosen by constituency parties, and List-side candidates by the central party.  Professor Bogdanor disliked the List side of MMP (he personally favours STV), as it puts too much power in the hands of the central party, reinforcing party control over MPs.  Memberships of political parties continue to decline, making parties more and more like elites.

I have since posting been corrected slightly in my description of List – it’s not in fact centrally operated, but operated by regional conventions as per each party’s internal constitutions.

Professor Wilson noted no reduction in the degree of partisan, confrontational politics in New Zealand following the adoption of MMP.  There have been, however, a number of defections between the parties, and some conversions into Independent MPs, principally among the constituency MPs.  There have been complaints that this has undermined the main principle of proportionality, and it was proposed in the early 2000’s to require MPs that defect to resign their seats and face re-election.  Fortunately, this wasn’t adopted.

Committees in the NZ Parliament have become more assertive with the onset of permanent hung parliament.  As in the chamber, none of the parties have a majority on any committee.  Private Member Bills, also, have a (marginally) higher chance of succeeding.  MMP has, in Professor Wilson’s view, slowed down lawmaking (which is a positive), but not by a great deal.

Has MMP Worked?

The goal of NZ’s pro-PR reformers was to create a more representative parliament with more checks and balances on the Executive.  The MMP Parliament has 34% women, 15% Maori, and another 9% Asian and Pacific.  The parties use the List to improve these numbers, but it is clearly still poor as regards female representation at least.

In terms of checks and balances, the small size of Parliament, rather than the voting system, makes MPs there more effective in making a difference, as numbers are more important.  Whips are still powerful, as the potential independence inherent in a small parliament is offset by the presence of List MPs.

The frequent presence of coalition and minority governments also means more leverage for the Opposition and minority parties, but a consequent side-effect has been that much more decision-making is taken behind closed doors, with senior politicians relying more and more on specialist advisers (the notorious SpAds).  The effect has been a decline in the amount and quality of debate in Parliament, and less transparency.

Professor Wilson also pointed out the NZ Parliament has had its own expenses crisis, although not on the same scale as Britain’s.

Conclusion

Professor Wilson felt that MMP changed the nature of decision-making, slowing it down, but has also made it less open and increased the influence of unaccountable SpAds.  Select committees have enjoyed an increase in influence.  On the whole, Professor Wilson, while reiterating her support for MMP, felt the changes were ‘not revolutionary’.  As it stands, there is a referendum due in 2011 on whether to retain MMP or adopt another system, and it’s not clear what the result will be.

Professor Bogdanor found it curious that major constitutional change, normally a low priority, is now being considered in the UK now, only after a huge crisis of confidence in politics and Parliament following the expenses revelations last year.  He also observed that despite the main call by the public being for greater control over MPs, such as could be attainable through primaries and recall votes, the changes being proposed, such as PR, fixed-term parliaments, and primaries, would not address this one jot.

I found the talk very interesting.  It should be remembered, however, the AMS/MMP is but one possible option for PR that could be adopted, and Bogdanor himself favoured STV.  AMS isn’t on the cards at next year’s referendum, but it’s always useful to learn a bit more about the options.

Political and Constitutional Reform Committee: Report on the Parliamentary Voting System and Constituencies Bill

October 28, 2010 Leave a comment

On Wednesday, August 20th, the Political and Constitutional Reform Select Committee put before the House of Commons its report on the current hot topic in Parliament, the Parliamentary Voting System and Constituencies Bill.

The report is enormous – 255 pages thick.  The committee, chaired by Graham Allen, Labour MP for Nottingham North, deserves an enormous amount of kudos for doing what it could in the time allocated.  Because frankly, one of the biggest shames of this Bill is that it’s being shoved through the parliamentary process in the worst possible fashion.

The report criticises the fast pace of the progress of the Bill, and notes that the Bill, presented for First Reading on July 22nd 2010 with practically zero consultation with any interested parties.  Parliament went into recess shortly after, meaning that Parliament has had precious little opportunity to scrutinise the Bill properly.  While the Bill was paraded by the government as a ‘major step’ towards restoring people’s faith in Parliament:

“the Government’s failure to consult on the provisions in this Bill risk undermining that laudable intention.”

and

“it is always regrettable, and generally leads to poorer legislation, when such an approach to timetabling legislation becomes a characteristic of any government’s political reforms.”

The Bill is, essentially, two Bills in one: a Bill to establish a referendum on adopting a new electoral system, and another on reducing the number of parliamentary constituencies from 650 to 600.  For some, (arguably Labour supporters), the Bill is largely a politically-motivated fix, not a principled attempt to correct flaws in the Constitution.  However it makes sense to combine these two issues, but, the missed opportunity for the committee is adding Lords reform – meaning constitutional reform will continue to be dealt with piecemeal and not comprehensively.

The Referendum

The committee welcomed the government’s decision to put the electoral system change to a public vote.  The report is silent on the merits of either FPTP or AV (makes sense – as the paper is long enough already!).

The Bill’s present question for the referendum is:

“Do you want the United Kingdom to adopt the ‘alternative vote’ system instead of the current ‘fire past the post’ system for electing Members of Parliament to the House of Commons?”

However the Electoral Commission proposed something a bit friendlier:

‘”At present, the UK uses the ‘first past the post’ system to elect MPs to the House of Commons.  Should the ‘alternative vote’ system be used instead?”

The committee saw the merits and drawbacks of holding the vote on May 5th 2011, at the same time as elections to the Scottish Parliament and Welsh Assembly.  The Scottish and Welsh legislatures claim it will overshadow their own elections and confuse the electorate, but Professor Robert Hazell of the Constitution Unit in University College, London (UCL), disagreed:

“the likelihood is that the referendum is the second order poll, and that it will be overshadowed by the elections rather than vice versa.  That has been the experience in other countries which have had referendums at the same time as elections.  In Canada, and in New Zealand in 1993, the political parties remained silent on the referendum issue, not least because they were concentrating their efforts on fighting the election, not the referendum campaign.”

Pairing the elections and the referendum would save about £30 million in administrative costs, increase turnout, and minimise voter fatigue, which can only be to the good.  If the referendum were held on its own, the turnout for the poll would likely be very low.  The Hansard Society noted the low priority for the public of the issue, saying “only one in five (19%) report having discussed ‘the electoral system’ in the last year”.

So it makes sense ultimately for the referendum to buddy up with the devolved elections; but in order for everything to be ready in time, the Bill must become law 6 months before the vote – November 5th, 2011.  This means there’s been a phenomenal rush to get the Bill onto the Statute Books.  As it stands, the Lords will hardly have a moment to scrutinise the Bill within that deadline.  Given the huge number of amendments being proposed to the Bill and the ambivalent nature of all the parties to it, I would be surprised if it’s met.

Constituency Redrawing

While this section of the Bill is principally the Conservative Party’s baby, the Liberal Democrats also pledged in their manifesto to reduce the number of MPs to 500 but only if the UK adopted Single Transferable Vote (STV).  The Tories themselves wanted a 10% drop to 585.  600, then, is clearly a compromise.

The committee reported general surprise from its witnesses about the decision to cut the number of MPs.  Peter Facey of Unlock Democracy (a pro-electoral reform body) felt that, without a debate with the public on what MPs are for, this decision is putting “the cart before the horse”, and Lewis Baston of Democratic Audit added that there has been no input from the public on this decision.

The Rt Hon. Paul Murphy, MP, argued that larger constituencies would make MPs still more remote from their constituents.  The Deputy Prime Minister argued that the priority should be to ensure each vote carries the same weight.  But the committee questioned the wisdom of this approach:

“there is an argument…that the point of a constituency-based system, rather than a system of proportional representation, is to prioritise representation  of the views of local communities over absolute equality of votes for individuals.  It is important that the equalisation requirement is not drawn so tightly, that new constituencies lack a sense of local identity as a result”.

Therefore, if equal votes is our priority, rather than representation of communities, then the government should not have picked AV as their replacement voting system, but have gone straight to PR.

The Hansard Society felt a reduction of 50 MPs was simply “plucked from thin air – 600 simply being a neat number”.  Prof. Ron Johnston and Prof. Justin Fisher felt that it was largely “a rather populist response to the expenses scandal”, allowing the government to facetiously tell the country ‘we’re proving to the country we can work harder with less money’.   The committee concluded that while it felt there could be a justification for reducing the size of the Commons, the government simply hasn’t presented it.

Nor would the reduction make Parliament work any better or more cheaply.  According to the Hansard Society, increasing the average size of constituencies expand MPs’ casework, and require them to deal with even more local stakeholders and local authorities, implicating more time consumed and costs generated.  No savings were demonstrated by the government – indeed, the report points out it would be about a millionth of the budget of the NHS.

International comparisons show the House of Commons is not that much larger than the German or Italian lower Houses (with 622 and 630 representatives respectively).  More important than international comparisons is the uniqueness of the UK’s political structure – we are a unitary state, unlike Germany or America which are federal, and being parliamentary, unlike the US or France.  Here, the executive sits in the legislature, requiring a larger legislature to ensure separation of powers.

The Boundary Commissions

The committee’s report was unhappy with the government’s attitude to constituency redrawing, describing it as ‘mathematical’, and that insufficient consideration of local views was being provided.    The Committee has tabled an amendment to the Bill (which will be dealt with in the House’s committee stage) which would make it easier for members of the public to influence the redrawing process, and to have more of an impact.  Let’s hope the House accepts it.

The committee was also unhappy with the concentration of power the Bill grants the government in clause 8(6), allowing the government to amend a Boundary Commission report at will.  The government tried to assure the committee that this power would only be used to amend obvious errors in the reports, but as the boundary appeals are dominated by political parties, the committee wasn’t convinced.   The committee therefore insisted on statutory limitations on these powers, namely that amendments to the Boundary Commission’s report only be made with the Commission’s consent.

By not attempting to reach a consensus on its boundary reform proposals, the government is leaving itself exposed to claims that the Bill is purely partisan, and it will set a precedent for future governments to tinker with constituency drawing more aggressively.  The question of course is whether consensus on such a hot potato as constituency boundaries is at all possible, of course.

The Payroll Vote

The committee observed that the cuts threaten to make the ‘payroll vote’ – the number of MPs working for the government – proportionately larger, and threatening Britain’s separation of powers.

The number of ministers in the Commons is limited to just 95, as per the House of Commons Disqualification Act (1975), and each of these can have a Parliamentary Private Secretary, meaning the maximum potential number on the ‘payroll vote’ can be 190 MPs.

It’s likely that the 50 constituencies abolished would be backbenchers, meaning the government would grow in size in the House.  In the government’s defence, reducing the size of the Executive in the House isn’t a simple mathematical affair, as the ministerial  workloads would intensify.  The side-effect may be an increase in the number of ministers sitting in the House of Lords.  The committee wasn’t impressed by this, describing it as ‘ironic’ that the government would make excuses for this, given their haste and lack of concern about the impact of reducing the size of the House overall.  Therefore, the committee tabled an amendment which would limit the payroll vote to 15% of the House.

All in all, the committee’s report appears to be quite constructive.  It’s supportive of the Bill in principle, but critical of the spirit of its passage through Parliament.  The arbitrary constituency boundary redrawings resembles not a little the ‘Scramble for Africa’. The House of Commons is coming to the end of its own committee stage for the Bill, and very shortly will be before the House of Lords.

Great Offices: The Lord High Chancellor of Great Britain

October 3, 2010 Leave a comment

Lord Campbell (1779-1861), Lord Chancellor 1859-61, sporting court dress

Perhaps the oldest extant office in the United Kingdom bar the Crown, would be the Lord High Chancellor of Great Britain – more commonly known as the Lord Chancellor. Its other, considerably more recent name, is Secretary of State for Justice.  The present Lord Chancellor is Kenneth Clarke, MP for Rushcliffe.

Essentially the United Kingdom’s Justice Minister, the office has been in continuous existence since 1062, in the reign of Edward the Confessor. William the Conqueror kept the office upon his accession to the throne, serving as the head of the Chancery.

For much of the medieval period, the Lord Chancellor was the most powerful office below the monarchy and, when in use, the Lord High Steward, controlling access to the King, providing religious services (being almost always a churchman) and bearing custody of the Great Seal of the Realm. The Lord Chancellor also carried out some executive functions surrounding public petitions through his High Court of Chancery.

Since 2007, the Lord Chancellor has led the Ministry of Justice and before that the Department for Constitutional Affairs. Before 2003 it was the Lord Chancellor’s Department. The office concerns itself primarily with the judiciary, and before 2005 the Lord Chancellor had extensive control over the appointment of judges and barristers in England and Wales. Since then the Lord Chancellor has had less direct control and overseas a more independent selection process.

The Lord Chancellor also historically had more extensive judicial functions, such as when the House of Lords was still the Kingdom’s High Court, as well as the Judicial Committee of the Privy Council, the Court of Appeal and the Supreme (now Senior) Courts of England and Wales. In practice, however, in recent times these roles were delegated to other officials in the courts, to avoid a conflict with the principle of separation of powers.

The Lord Chancellor also has church duties, and appoints on behalf of the Crown a large array of minor clergymen that work on Crown land and the Duchy of Cornwall (neither of which are supplied with state funds but funded with Crown Estate/Duchy money). The Lord Chancellor also supervises ecclesiastical courts and is a Church Commissioner.

If the monarch is a minor, or incapacitated in some way, then under the 1937 Regency Act, the Lord Chancellor is one of the five persons who would declare this so.

The present Lord Chancellor, Ken Clarke MP, alongside the Lord Chief Justice, Lord Judge

From 1533, to 2007, all Lord Chancellors have been peers, and thus sat in the House of Lords (except one – Charles Yorke, in 1770). Until the passing of the Constitutional Reform Act in 2005, the Lord Chancellor was also Speaker of the House of Lords. In practice, however, the Lords’ strong sense of self-regulation meant there was little activity by this office, and most of the time the House would elect someone else to serve in his absence – much like the President pro tempore of the United States Senate stands in place of the Vice President of the United States. Now, the role is carried out permanently by the Lord Speaker.

Before the 1707 Act of Union, there were separate Lord Chancellors for England and Scotland, which were then merged into the present office. This was not repeated under the 1801 Act of Union between Great Britain and Ireland, and there remained a Lord Chancellor for Ireland until Irish independence in 1922. Hence, it is the Lord Chancellor of Great Britain, not the United Kingdom. The powers of the Lord Chancellor of Ireland are now exercised by the Secretary of State for Northern Ireland.

The Lord High Chancellor is the second highest ranked great office of state in the Kingdom, behind the Lord High Steward and ahead of the Lord Treasurer. He is also Keeper of the Queen’s Conscience (historically exercising power over public petitions) and Keeper of the Great Seal (controlling the authorisation of official documents and the monarch’s signature on Acts of Parliament).

Jack Straw, as Lord Chancellor, giving Her Majesty the Gracious Speech at the State Opening of Parliament

The Lord Chancellor wears court dress, which constitutes a full scarlet wool gown decorated with stoat fur, full bottomed wig and a tricorne hat. This is normally when when carrying out judicial ceremonies, such as the Lord Chancellor’s Breakfast. When carrying out parliamentary ceremonies (such as the Prorogation and the State Opening of Parliament), the Lord Chancellor wears a silken black gown with gold lining lace cravat, stockings and buckled shoes.

Until 1998, the 1351 Treason Act made killing the Lord Chancellor a capital offence.

Categories: Offices