Extension of Franchise (House of Lords) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Friday 7th February 2020 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, three weeks ago, on 16 January, the new President of the Supreme Court, the noble and learned Lord, Lord Reed of Allermuir, was introduced into this House in succession to the noble and learned Baroness, Lady Hale, and I welcome him to our Cross Benches. However, that very same day, by the very fact of his ennoblement to this House, he found himself wholly disenfranchised. He had already served on the Supreme Court for eight years and, during those eight years, like almost all his colleagues, he enjoyed the right to vote in parliamentary elections, but now, ennobled, although, of course, under our rules, immediately disqualified from speaking and voting in this House, he finds himself without a vote here or in parliamentary elections. So too does the Lord Chief Justice, the noble and learned Lord, Lord Burnett of Maldon, who was ennobled in November 2017 and immediately disqualified. They are worse off in terms of the parliamentary vote than a Member of this House who is convicted of a crime and expelled under one of the extremely desirable bits of incremental legislation—I say that in response to the noble Lord, Lord Rennard—which is gradually improving the situation here. The Bill is another manifestly desirable incremental improvement in our position.

I wonder what those who oppose this Bill say about these judges? Do they say that it is merely an anomaly—possibly a regrettable anomaly, but do not worry about it? I suggest that these anomalies are symptomatic of the deeper illogicality of denying us the vote in general elections. In fact, not all Members are denied the vote; one must recollect that it is only temporal Peers. The Bishops continue to have a vote in general elections. Is that perhaps just another anomaly?

I do not pretend that this is a first-order issue. If and when we get the commission on the constitution that is promised—or do I mean threatened?—it will not be item one on the agenda. No doubt there will be an awful lot of issues, such as those the noble Lord, Lord Rennard, outlined, including the voting age, but this is no occasion to debate all those wider issues. We are here concerned to try to eliminate finally one absurd lingering anomaly. Of course, we retain our seats from one Parliament to another and, if not disqualified like our serving judges, we play some part in the legislative process, most usefully perhaps in the scrutiny and revision of Bills that come from the other place, but we all accept—nobody doubts—that the real power lies there. It has the democratic mandate and its policies, particularly the manifesto promises of an elected Government, rule, and rightly so. As has been pointed out, money Bills—taxation—are for it alone. The old adage “no taxation without representation” is waved aside as an historical accident.

What, then, are the arguments? The noble Lord, Lord Sherbourne, demolished those based on history and tradition. If ever it was justifiable to deny Members of this House the vote, it is impossible to see that it is so now. Can it really be regarded as a privilege of our membership here? I suggest that it is conspicuously elitist. It is implicitly suggested that we are just above all that sort of thing—that we are too important to need a vote and should let the democratic burden fall on lesser folk.

I suggest that, although, as I said, we are not dealing with a first-order issue today, there is a genuine point of principle here. Universal suffrage is the badge and symbol of a healthy democracy. It would help the public to recognise that fact if, finally, it were accepted that your Lordships should indeed have not only the benefit but the responsibility of the vote, thereby playing their part in the democratic process of electing the all-powerful other place.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, I hope my noble friend Lord Naseby will allow me to congratulate him on his success in the Private Members’ Bills ballot and on securing this opportunity to raise the question of the voting right of Peers. He deserves enormous credit for bringing this House back to an issue about which I know he feels strongly. As we have heard today, it is an issue with which a number of your Lordships are in considerable empathy.

As my noble friend made clear, the Bill seeks to change the current position, whereby Peers who are Members of this House are not entitled to vote at elections to the House of Commons. The arguments for that change have been succinctly laid out for us, by my noble friend and many other noble Lords, including the noble and learned Lord, Lord Brown.

There is, however, a long-standing rationale for the current position and I would like to draw on this in setting out the Government’s view of the matter. It is a view which I anticipate will come as no surprise to my noble friend or the noble Lord, Lord Kennedy of Southwark. Peers who are Members of this House are already able to represent themselves in Parliament. They do not, therefore, require others to represent their interests, unlike members of the general public. That is the function of Members of the House of Commons: to represent those who cannot be present in Parliament to represent themselves. I therefore have some reservations, if I can put it as mildly as that, about my noble friend’s proposal to extend the franchise to Members of this House. But I appreciate that any issue on democratic participation is worth raising and discussing, and I therefore repeat my thanks to him for giving us this opportunity.

The principle that bars Peers from voting in elections to the House of Commons dates back, as has been said, to a 1699 House of Commons Journal entry. I say to my noble friend Lord Sherbourne that that may be an ancient provision but its rationale applies with equal force today. It is based on the premise I have already set out: that Peers who are Members of this House are already able to adequately represent themselves in Parliament. Parliament of course consists of the three estates of the sovereign, the Lords and the Commons. The Lords sit in their own right. The Commons is elected to represent the general public in Parliament. I do not believe that there is a strong case—there are arguments—for Members of this House to be able to vote to elect representatives to the House of Commons, since they are able to sit in Parliament anyway as their own representatives. This principle has long been established in common law.

Of course the bar on the voting rights of Peers in regard to general elections is not absolute; it applies only to Peers who are Members of this House. Hereditary Peers who do not sit in this House are able to vote in general elections, as are noble Lords who have retired or otherwise left the House under the provisions of the House of Lords Reform Act 2014. The basic principle has therefore been reinforced recently in statute, not simply in common law, as my noble friend reminded us. There is nothing to prevent noble Lords who sit in this House from being heard in the House of Commons. If a Member of this House wishes to pursue an issue as a constituent, such as in the example cited by the noble Lord, Lord Blunkett, there is nothing barring them from raising it with their local MP. Noble Lords can also use their position to ask Parliamentary Questions and introduce legislation.

To address briefly a point raised by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, Supreme Court judges are able to vote in general elections. However, when those judges who are eligible to sit in the House of Lords return to the House, it is then that they are no longer able to vote in general elections. Bishops in your Lordships’ House can vote because they do not have permanent membership of it.

[Lord Brown of Eaton-under-Heywood]

Can the Minister deal with the specific cases I raised of the President of the Supreme Court and the Lord Chief Justice, who are Members of this House but disqualified? They have no vote here and do not have a parliamentary vote. Would he not at least accept that that is a most regrettable anomaly? What he just said as to how other members of the courts have the parliamentary vote is true, but it does not apply if they are Members of this House.

[Earl Howe]

The noble and learned Lord has raised a very interesting constitutional point. It is so interesting that I think it is appropriate for me to write to him about it, and copy that to noble Lords who have spoken. As noble Lords who have stood where I am standing will be aware, there is a point at which the brief in front of a Minister runs dry. That is the case in this instance, but I reserve the right to produce some arguments.

Another issue raised was about the well-worn principle that there should be no taxation without representation. My noble friend Lord Young’s comments on that issue in the debate on 19 July last year were cited. I can understand why the point about a Japanese citizen could be attacked, but a British citizen of voting age who is not a Member of the House of Lords but who pays no income tax retains the right to vote. The point my noble friend was making on that occasion, which I echo today, is that there is not a direct connection in law between people who have paid tax and people who have the vote.

The reason why Members of the House of Lords cannot vote on Finance Bills goes back a long way. The financial primacy of the Commons dates back many centuries and was formalised by two Commons resolutions in the late 17th century. The first, from 1671, states

“that in all aids given to the King by the Commons, the rate or tax ought not to be altered by the Lords.”

That is quoted in Erskine May. The second resolution is more detailed, from 1678—I would love to read it out, because the language is wonderful. Noble Lords suggested that this is an anomaly or even an affront, but none of it prevents this House debating money Bills or tabling debates on a financial matter.

As many noble Lords have pointed out, Peers who are Members of this House can also vote, where appropriate, in elections to the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly; in local government elections; in police and crime commissioner elections; and in both national and local referendums. The difference in those instances, I say in particular to my noble friend Lord Bourne of Aberystwyth, is that those are forums or offices in which Peers do not have an automatic right to represent themselves.

Noble Lords therefore have a say in local, devolved and national decision-making. Enfranchising noble Lords to vote in general elections would give Peers two ways of being represented in Parliament—it would give them double leverage as citizens. My noble friend Lord Sherbourne suggested that there is no possible downside to such a change. The Government believe, on the contrary, that conferring such an exceptional privilege cannot be right.

I was asked by the noble Lord, Lord Adonis, and others to say something about the commitment in the Conservative manifesto to review the relationship between the Government, Parliament and the courts in a constitution, democracy and rights commission. I wish I could provide him with further and better particulars on this commitment at this juncture, but, as I have said on two occasions recently, it is still too soon for me to do so. The scope of the commission will be announced in due course. However, I can tell him that the aim of the commission will be to develop proposals to restore trust in our institutions and in how our democracy operates. I hope I need not say, although I will, that we will continue to promote the UK’s interests and its values, including freedom of speech, human rights and the rule of law. It is clear, I hope, to most noble Lords that careful consideration is needed on the composition and focus of the commission.

In light of all that I have said, I must end with a disappointing message to my noble friend. Even if the Government supported the principle behind this Bill, and I hope that I have set out clearly our reservations about it, they do not think that spending further parliamentary time on it is justified when other, more pressing electoral reforms—reforms which the Government are working hard to bring into being—have been so widely called for.