Parliamentary Privilege

Lord Norton of Louth Excerpts

Thursday 20th March 2014 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, as the first Member to speak who was not on the committee, I welcome the report of the Joint Committee. It is a measured and persuasive report. I also welcome the response of the Government. Privilege is a matter for both Houses, but the Government have an important role to play in facilitating the recommendations of the Joint Committee, not least when legislation is involved. I was very pleased to see the constructive engagement by the Government. There were few issues on which the Government reached a different conclusion to that of the committee. On reporting proceedings, I incline to the view of the Joint Committee, for the reasons that the noble Baroness, Lady Healy, outlined; but on the other issues, for reasons that I shall develop, I agree with the Government.

The report accepts that the current position is not tenable. The assertion of privilege in respect of those summoned to appear before Select Committees has for some time been akin to admiring the emperor’s clothes. In practice, committees rarely have difficulty in securing the witnesses they wish to give evidence. For those summoned, it is often seen as a matter of some pride to appear before a parliamentary committee. It is normally in their interest to appear; they want their views to be heard. The occasions when there is a problem are few and far between, but it is on those occasions when either House may need to assert its powers to ensure that committees can fulfil their essential tasks. As the Joint Committee recognises, it is in the public interest that committees have the power to function effectively. As it records, each House needs to be prepared for when someone summoned tests the penal powers of the House. As it says at paragraph 61:

“It will be too late to consider these matters when a crisis arrives”.

The committee recommends against legislating to confirm Parliament’s penal powers. I think it is correct in arguing that the disadvantages of legislating outweigh the advantages. Legislating would bring privilege within the purview of the courts, not only to determine the scope of privilege, as they do, but also to determine whether a contempt has been committed. It would entail a significant reduction in the exclusive cognisance of Parliament, and give to the courts a role that I suspect they would not necessarily welcome. There is a powerful principled case for maintaining the concept of two constitutional sovereignties, and there would need to be a compelling case to move away from it. I do not believe such a case has been made.

The Joint Committee gets to the nub of what is needed in paragraph 77. It is essentially a test of institutional confidence. This House recently resuscitated its long-standing power to suspend Members. The fact that the power had not been used since the 17th century did not mean that it no longer resided with the House. As the Clerk of the House of Commons told the Joint Committee in respect of privilege, it is not a question of the powers but rather one of their enforcement. However, enforcement must comply with standards of fairness, ensuring that those appearing before committees know what is expected of them and providing a rigorous process, including recourse to legal advisers, should they be subject to a complaint of contempt.

I believe that the committee’s recommendation for a clarification of powers and setting out fair procedures is entirely appropriate. It addresses what is clearly a problem that needs resolving, but also provides the flexibility to meet changing expectations.

The need for flexibility is at the heart of the committee’s report. I wholly accept the argument that flexibility is preferable to a statutory codification of privilege. There is no need for such codification, not least given—as the Joint Committee records—that there is no persistent conflict between Parliament and the courts. The relationship has tended to be characterised more by comity than by conflict. There have been exceptions and on occasion judges have entered into territory that should remain barred to them. Pepper v Hart was designed to enable courts to look at the parliamentary record when there was an ambiguity that could not be resolved other than by examining what the Minister had said. It was not an invitation to pass judgment on what was said and done in either House, but some judges seemed to think that it gave them latitude for such commentary. However, those have been the exceptions, not the rule; and the courts generally have shown no desire to encroach on matters that are deemed to fall within Parliament’s sole jurisdiction. As the Master of the Rolls, Lord Dyson, observed in his recent Bentham Presidential Lecture, talking about judicial review, judges are,

“mindful of the … territory into which they should not enter”,

and in exercising their power, they,

“seek to uphold the decisions of the legislature and to secure the sovereignty of Parliament and the rule of law”.

Where there may be conflict or uncertainty, that is a case for dialogue rather than confrontation. The relationship tends to fit with what Alison Young has characterised as a “democratic dialogue”. As the Government response records in respect of the question as to whether the Register of Members’ Interests should be considered as a parliamentary proceeding:

“This is another case where closer contacts between Parliament and the Courts can mitigate the risks of misunderstandings and improve the consistency of decision making”.

It is important that means of maintaining such contact are developed. One of the many advantages of retaining this House as the highest court of appeal was that it provided a forum in which the Law Lords could appreciate the importance of Parliament and other parliamentarians could appreciate the role of the Law Lords. That relationship was entirely legitimate and indeed, in my view, served to provide some protection for the role of the judiciary against sometimes ill informed criticism by the Executive. Means are now being developed of ensuring that a dialogue can be maintained between the legislature and the judiciary.

Parliamentary privilege needs to be protected in order to enable Parliament to fulfil its functions. The stress is on Parliament rather than parliamentarians. As the noble Lord, Lord Bew, said, parliamentarians enjoy protection only in so far as it is necessary to protect the House of which they are Members. As the report notes, MPs and Peers do not enjoy the immunities accorded to Members of some other parliaments. I think that our approach is appropriate. Privilege should be for the benefit of the nation. It is not designed for the personal benefit of Members.

It is thus entirely right that Members are subject to prosecution for “ordinary crimes”, whether committed on the parliamentary estate or elsewhere.

Following the principle that Members should not enjoy privileges that are not essential to enabling Parliament to fulfil its functions, I agree with the Government that there should be no change to current requirements in respect of jury service. As the response notes, Her Majesty’s Courts and Tribunals Service will readily grant requests to defer jury service where necessary. I certainly see no grounds for arguing that Members should have a right of excusal from jury service in England and Wales, but officers of either House should not. The officers arguably are more essential to the fulfilment of the functions of each House than is any individual Member.

For the same reason, I agree with the Government in respect of the right of Members not to respond to court summonses. As the government response notes, it is a privilege not enjoyed by other public figures. As it says, there is no strong rationale for Members to be treated differently from non-Members in this area. Indeed, I think there is a danger of bringing Parliament into disrepute if a Member hides behind parliamentary privilege in order to avoid responding to a court summons. There is no compelling case that such immunity is necessary for Parliament to fulfil its functions.

On most other issues, the Government agree with the Joint Committee’s recommendations. I welcome the Government’s acceptance that there should be no disapplication of Article 9 of the Bill of Rights in respect of criminal prosecutions and that Section 13 of the Defamation Act 1996 should be repealed. Both are consistent with protecting freedom of speech as essential to enabling Parliament to fulfil its functions and maintaining the clear division between the legislature and the judiciary.

My principal question is directed to my noble friend the Leader of the House, and that is: what next? That question is especially germane in this House. As the report states at paragraph 79:

“If the House of Commons were to adopt our proposals on how its penal jurisdiction should be exercised, we would expect the House of Lords to adopt similar procedures, adapted to the conventions prevailing in that House, in due course”.

“Due course” is a rather imprecise indication of timescale and there is always the danger that, with no set timetable, there may be a tendency to defer any action. It would be helpful to know what steps are being taken to ensure that we do, as the Joint Committee recommends, build on its work, and when we may expect to see the fruits of the deliberations that take place. The report of the Joint Committee is very welcome. It is important that it does not gather dust. It is in the interests of the House that we act on it. Agreeing to the Motion tabled by my noble friend the Leader of the House is a start, but it is essential that we ensure that it is not both a start and an end point.

--- Later in debate ---

[Lord Hunt of Kings Heath (Lab)]

My Lords, like other noble Lords, I am very grateful to the noble Lord, Lord Brabazon of Tara, for opening the debate and for his chairmanship of the Select Committee. Indeed, as the Select Committee says, parliamentary privilege is one of the special characteristics of our democracy that is crucial but often misunderstood. The Select Committee has gone a very long way towards clearing up many of those misunderstandings and has provided much-needed clarity about the freedoms and protections that each House needs to function effectively. As such, they are an essential bulwark of our democracy—hence the importance of the work of the Select Committee, which I think has been endorsed by every noble Lord who has spoken in this debate.

As the noble Lord said, parliamentary privilege very much came to public attention in the wake of the 2009 expenses scandal, when three former MPs and one Member of your Lordships’ House accused of false accounting over their expenses sought to argue that they ought not to be prosecuted because of parliamentary privilege. As we have heard, the matter was dealt with by the courts in, I suggest, a most sensible way.

I agree that, in the light of that judgment, the Joint Committee’s central conclusion is that,

“the case has not been made for a comprehensive codification of parliamentary privilege”.

I also agree that legislation should be considered only when it is shown to be absolutely necessary. I agree with the Joint Committee’s rejection of the Government’s original proposals in relation to Article 9, and I am glad that the committee has taken such a firm view on that.

My noble friend Lady Healy and the noble Lord, Lord Bew, spoke eloquently of the challenges of media reporting in the current age and of the need for those who are reporting to respond at speed. The noble Lord, Lord Brabazon, referred to the Bill proposed by the noble Lord, Lord Lester, relating to media reporting in Parliament. Given that the noble Lord, Lord Lester, has not been able to make progress in the current Session and given all the problems that we know Private Member’s Bills have in getting through the other place, as the noble Lord, Lord Hill, the Leader of the House, will be responding, I take the opportunity to ask whether the Government will offer time for that Bill to go through the other place.

My noble friend Lord Davies made the very important point that we are being sent away for what one might call obscenely long recess dates at Easter; there are rumours about Whitsun; and we are not coming back from the Summer recess until mid-October. I do not believe that the Government cannot find parliamentary time to enable that to happen. I would welcome some optimism from the Leader of the House either that the Bill of the noble Lord, Lord Lester, if introduced in the other place by an honourable Member, will be given all speed or that the Government themselves will bring forward some legislation.

On Select Committees, I was very grateful to the noble Lord, Lord Norton, for his interesting insight in relation to penal powers and the need for flexibility, which I strongly support. I agree with his conclusion on jury service, although I was struck by one of his comments. I think he said that officers were more valuable than Members to the Houses of Parliament. While we certainly have superb officers, I think that, as Members, we have some role to play.

[Lord Norton of Louth]

I said they were more valuable than any individual Member.

[Lord Hunt of Kings Heath]

I was trying to work out the difference between the collective of officers versus the value of individual Members. It reminded me of the “Yes Minister” episode about the National Health Service that concluded that the NHS would run enormously smoothly if patients were not to come through hospitals.

The substantive point on which the noble and learned Lord, Lord Brown, was very persuasive was the question of whether Members should be exempt from jury service. On this matter, the committee report recommends, in paragraph 253, that,

“the Government should bring forward legislation providing that Members of either House should be among those who have a right to be excused from jury service”.

I very much agree with the noble and learned Lord. Many of the previous exemptions have gone and I am sure it is right that all parts of society should expect to be called for jury service, including Members of your Lordships’ House and the other place. On this matter, I hope that we will not move to accept the committee’s report.

With regard to the Motion of the Leader of the House, it seems to be an eminently sensible approach, although I note that in paragraphs 37 to 39 of the committee report, some doubt is placed on the benefit of resolutions passed by both Houses. I ask the Leader: what is the effect of such a resolution? Is it simply a plea to individual departments to make sure, in drafting legislation, that they abide by the resolution, or does it have rather more strength? If the noble Lord could provide some reassurance on that, it would be helpful.

Overall, it seems to me that we are coming to a very satisfactory conclusion. The Select Committee’s report is very welcome. It has been very well written and argued. Apart from one or two areas about which I have doubts, I have no doubt that it has done a great service to your Lordships’ House, to parliamentary privilege and to the way that Parliament works in general.

House of Lords: Size

Lord Norton of Louth Excerpts

Thursday 12th December 2013 Lords Chamber

Moved by

[Lord Norton of Louth]

To move that this House takes note of the case for reducing the size of the House of Lords.

[Lord Norton of Louth (Con)]

My Lords, the proposition I wish to put to the House is straightforward. In terms of membership, the House of Lords has grown, is growing and ought to be reduced. There is an immediate problem; there is an even greater prospective problem.

My starting point is that this House does a good job in fulfilling functions that add value to the political process. It complements the elected Chamber, not least in carrying out tasks that the other House may not have the time, resources or political will to fulfil. However, the fact that we do a good job does not mean that we could not be even more effective than we are. Enhancing our effectiveness has two elements. One is making changes to how we operate and the other is bolstering public confidence in what we do. Unlike the other place, we cannot take our legitimacy for granted. We have to earn it. The changes that would enable us to fulfil our functions more effectively and enhance public support go well beyond limiting how many Members we have. However, addressing the size of the House is critical because of its relevance to fulfilling the functions of the House and our public standing.

There are two aspects to the size of the House. One is the total membership and the other is the active membership. The total membership is especially relevant to how the House is seen by the public, and the active membership is relevant to the capacity of the House to do its job. In terms of total membership, the House has grown markedly since the passage of the House of Lords Act 1999. At the start of the new Session of 1999-2000, we had 666 Members—in other words, a membership slightly larger than that of the House of Commons. Today, we have a total of 835 Members, making the House more than a quarter larger than the House of Commons. We are the largest second Chamber in the world. That remains the case even if we exclude those who have taken leave of absence or are ineligible. Excluding those who are ineligible or have taken leave of absence, we have 781 Members. However, we have to take into account the fact that ineligible Members, such as those holding judicial posts, will in due course be able to resume their seats. Some of those on leave of absence because of the positions they hold, such as the noble Baroness, Lady Ashton of Upholland, may well resume their seats upon completion of their current posts.

However, even working with the figure of 781, imagine what will happen if a new list of Peers is announced. Then think ahead to the next Parliament and the likely creation of another list. There may be ebbs and flows—we lose some Members each year and there is a lull between lists—but the underlying trend is clear. That is demonstrated graphically in Figure 2 of Meg Russell’s pamphlet, House Full, published in 2011. As she points out, the largest single number of Peers to be created in any one year since 1999 was the 117 who were created in 2010-11.

The number, be it of all Peers or just of eligible ones, is rising and has risen most markedly in the past three years. It is not beyond reason to envisage a House at some point in the next Parliament with a total membership close to, or even in excess of, 900 Members. A House of that size, whether active or inactive, does nothing for the reputation of the House; it is difficult to defend in the public arena.

One can certainly justify a House similar in size to that of the other House, given that we need a large membership to sustain an active House of part-time Members. We benefit fundamentally from Peers having outside links and maintaining current expertise. This House forms an invaluable arena for discourse by civil society. However, the more that we grow in number beyond the size of the other place and, like Topsy, just grow and grow, it is difficult to defend against the criticism of being primarily an expanding repository of political patronage.

There is no obvious justification for the expansion in terms of fulfilling the tasks that are core to our activity. The more that we grow in size, the more that the position becomes indefensible. It would not be bad if there were a rational argument for the growth in numbers, but there is no clear intellectual basis for it. The composition of the new membership in this Parliament bears little relationship to the stated aim of the coalition agreement in terms of membership proportional to votes in the general election. To achieve proportionality now would require a further, substantial injection of new Peers.

There is a more tangible problem in terms of the resources of the House. The growth in membership in recent years has brought in Members who contribute regularly to the work of the House. This is reflected in the daily attendance: the average daily attendance in the Session 2009-10 was 388, while in the most recent session, 2012-13, it was 484. As Meg Russell records, this substantial recent growth in the active membership generates three problems. First, it puts pressure on the limited resources of the House. Secondly, it puts pressure on the work of the House, not least in terms of demands to contribute to Question Time and debates. Thirdly, it has a negative impact on the culture of the House. The more that Members are brought in quickly and in large numbers, the more that this makes it difficult to socialise Members in the accepted norms of the House, and the danger is that the House may become more fractious and partisan.

The pressure on resources is fairly obvious, not least in terms of space. Members have always been underresourced relative to Members of the other place. This is shown in the extent to which Peers are allocated not offices of their own but rather desk space. The pressure is also obvious in the Chamber, in that at various times it is not able to accommodate all the Members who wish to attend. We have a smaller Chamber than that of the other place but a larger membership. The Commons has seating for more than 60% of its Members; we cannot match that, even based on the average daily attendance, and the situation is clearly growing worse.

The increase creates particular problems in a House that works on a fairly lean support base. The cost of this House is notably less than that of the House of Commons. In the previous Session, the cost to the public purse of the House of Commons was £392 million while the cost of the House of Lords was £87 million. We may take some pride in delivering value for money, but making a case for more public money at the present time is difficult. We are expected to make efficiency savings. That will be difficult with an influx of new and active members, each eligible for an attendance allowance and transport costs and adding to the demands on the resources of the House. There is clearly a problem in how this will be seen by the public. There is also the problem of how we can cope within our existing physical capacity and administrative support. The demand is in danger of outstripping the ability of the House to meet it.

So the situation that we are in is clearly problematic, and if there are many more creations then it will likely become unsustainable. What, then, is the answer? There are various steps that can be taken, although in taking them it is important to have regard to certain principles. One is that no party or coalition of parties forming a Government should have an absolute majority. Another is that there should be a protocol, a formula, on the balance between the parties in order to prevent another escalation in membership. Any reduction needs to have regard to the balance between political groupings in the House. A third is that we should work towards a membership that is smaller than that of the House of Commons. That may take time but it is a useful aspiration; it provides a framework for managing the reduction in numbers.

One immediate and rather modest step would be to put a limit on the size of the House. One proposal is to have a moratorium on the creation of new Members. I would propose a cap on membership. That way, one could create new Members but only when existing ones had demised. One could develop a formula of creating, say, only one new Peer for every three who left the House. That would gradually reduce the size of the House; it would be a slow process, but over the course of the Parliament it would reduce the size of the House by at least 50.

Other steps include those embodied in the Bill introduced in this House by the noble Baroness, Lady Hayman, and that in the other place by Dan Byles, such as removing Peers who hardly ever attend. That would not affect the active membership but would have a beneficial effect in terms of public perception. Another provision of the Bill would create a form of retirement provision, which would have the effect of the Members ceasing to be Members of the House, with no provision for retirement to be rescinded.

More radical proposals have been canvassed. These include proposing a mandatory retirement age or imposing a set period for which a new Peer may serve, such as 10 or 15 years. The problem with each of these is that it has the potential to rid the House of Members who are making a substantial contribution to it. There is another proposal that would not have such an arbitrary effect and could be geared to the need to maintain a balance between the parties in the House and allow for some recalibration in each Parliament: to determine the number that each political grouping should have in a Parliament and to allow each to elect from within its own ranks those who should remain within the House—in other words, a scheme not dissimilar from that employed in 1999 to determine which hereditary Peers should remain in the House.

My purpose this afternoon is not to put forward a particular proposal, but rather to emphasise the necessity to address the problem. The more we can get on record the need to act, the sooner we may be able to achieve some steps by government to address the compelling need for some corrective action. Accepting the need for a cap on membership would be a starting point.

Given that, may I invite my noble friend the Leader of the House to focus not simply on where we are now, but on where we are likely to be in two, five and 10 years’ time? In terms of creations already announced, could he give us some indication of the additional costs estimated to be incurred in a full financial year once the introduction of the current tranche of new creations has been completed? Does he accept that a further list of Peers in the current Parliament will create not just additional but significant difficulties in terms of the finite resources of the House? Projecting ahead, would my noble friend accept that the problem will be exacerbated in the next Parliament, especially in the event of the return of a new Government? That will be the case if the new Government is a majority Conservative Government. Would not the new Government expect to create more Peers? If my noble friend accepts that there is a problem, either now or prospectively, what steps does he anticipate the Government taking to address it?

The problem has been touched upon by various bodies in recent years, including the Leader’s Group chaired by my noble friend Lord Hunt of Wirral, who I am delighted to see in his place, as well as more recently by the Political and Constitutional Reform Committee in the other place. My noble friend told the committee that he found that there was a broad consensus among Members that the current House is too big and the overall size should be reduced. Given that there is such a consensus on the problem and what should be done about it, I look forward to hearing from my noble friend, speaking as the Leader of the House, what he plans to do to give effect to the will of the House. I beg to move.

[Earl Attlee (Con)]

My Lords, may I point out to the House that the timings are very tight indeed for this debate? I can help.

--- Later in debate ---

[Lord Norton of Louth]

My Lords, I am grateful to all those who have spoken, and to my noble friend the Leader of the House in particular for replying to the debate. I also appreciate greatly the contribution of the noble Baroness, Lady Hayman, who is speaking in her third debate today. I thought that she encapsulated the point extremely well—size matters. Many of the speeches demonstrated concerns felt in different parts of the House.

This House clearly performs valuable functions; I do not think that the functions are in doubt. Nor is the fact that the House fulfils them effectively. I think that we do a very good job indeed; that is the great merit of the House. We tend to do the work extremely well, and I think that we should proclaim that fact. But my point is that the growing size of the House does not facilitate us in fulfilling those functions effectively. As I have said, it is only one aspect that we need to address, but it is an important one.

I say to my noble friend Lord Caithness that we will continue to have these debates until action is taken. He himself went on to refer to the problem of numbers, and came up with one or two ideas, one of which I would fully endorse—it is something that I have supported for some time. We need to think through the implications of the fact that we continue to grow. It is that dynamic element that my noble friend Lord True did not really address. Nor, to some extent, did my noble friend Lord Hill. We need to have a clear view as to what we believe is the optimum size of the House—and then, within that, the distribution among the different groupings. As my noble friend Lord Tyler indicated, we have not really had that discussion. That, I think, should be our starting point.

I endorse the comments of a great many noble Lords who have spoken. I am grateful to my noble friend Lord Hill for what he said, as far as he felt able to go. However, I am sure that he will understand when I say that we will push him to go further. I end with a quote addressed to those who think that things are fine as they are. Burke said:

“A state without the means of some change is without the means of its own conservation”.

Motion agreed.

Draft House of Lords Reform Bill

Lord Norton of Louth Excerpts

Monday 30th April 2012 Lords Chamber

[Lord Norton of Louth]

My Lords, as a supporter of the Government perhaps I may say how encouraging it is to note that on the definition offered by my noble friend Lord Strathclyde, so far in this Parliament the House of Commons has managed to reach a consensus on every measure brought forward by the Government. I was also interested to hear that we will not be having a referendum because all three party manifestos agree, including the Labour Party manifesto, which promised a referendum.

I too served on the Joint Committee and I too pay tribute to my fellow members. As we have heard, the committee devoted considerable time and effort to examining the draft Bill. However, it was fundamentally hampered in two respects. The first was that the Government presented us with a Bill of which we had the detail but for which we had no justification. Assessing the Bill on the Government’s own terms is not possible if the Government make no attempt to say what they are.

If one reads the White Paper, one can extract from the disparate comments two criteria, each of which is asserted rather than justified: that is, that the Bill delivers an elected House—a “fundamental democratic principle”, according to the White Paper—and that it maintains the existing relationship between the two Houses. The report of the Joint Committee demonstrates that the Bill fails by the Government’s own criteria. It may provide for election but the attempt to ring-fence the position of the House of Commons through Clause 2 is inadequate to the task. Indeed, if you read the evidence, it is fairly clear or would suggest that you can have one but not the other. The committee, as we have heard, took evidence on the Parliament Acts. As the report mentions, it would be possible to make statutory provision for them to continue in force. That, though, is to say what could be done, not what should be done. But even if the Acts were maintained, that would not be sufficient to maintain the existing relationship between the two Houses. As one reporter put it to the noble Lord, Lord Richard, at last week’s press conference, how exactly do you prevent an elected House from ignoring conventions? You cannot.

The second limitation was that of time. The committee did the best that it could with the Bill before it. It may, as the noble Lord, Lord Hennessy, said, have set a record for the number of meetings it held. Despite that, there was not time to examine the Bill in depth. Even if the Parliament Acts were maintained, they are blunt weapons for determining outcomes, and to rely on them on a regular basis would likely create significant tensions within the political process. The draft Bill provides no deliberative means for resolving disputes and, given the pressures we were under, the committee did not address how such disputes should be resolved. We dealt with it only in the negative sense of finding that Clause 2 was inadequate for maintaining the present relationship between the two Houses.

I take that as illustrative of what was not considered. The report is as important for what it omits as much as for what it includes. That is not a criticism of the committee but of the limitations under which we operated. I know the response adopted by some—we have already heard it—is that we did not need to address the fundamentals of what was proposed, and that further time was not needed, because the issue of Lords reform has been discussed for the past century. There is, in their view, little more to be said on the merits, and it is a case of agreeing the detail.

That view is not only wrong but dangerous. The case for an elected House and hence for the Bill is based on contested concepts and philosophies. We hear trotted out claims as if they are self-evidently true. There will be other opportunities to address these claims; here, I just wish to focus on the assertion that the issue has already been extensively considered over the course of a century or more.

Consideration of the future of the second Chamber, and its relationship to the first, has been sporadic and very rarely undertaken in terms of first principles. There has been little consideration of the role of Parliament in our constitutional arrangements and the place of the second Chamber within Parliament. The two principal exercises were those of the Bryce commission in 1918 and the Wakeham commission in 2000. Otherwise the debate, though extensive at times, has been at a rather superficial level, essentially of detail rather than principle. Even in 1911, the debate on the Parliament Bill was not a principled debate about the place of the second Chamber in the constitution of the United Kingdom. It was shaped by politicians’ stances on Irish home rule.

We need to address the issue from first principles. We need to consider how the second Chamber, and indeed the first, is composed once we are clear as to what we expect of Parliament. We have not really done that. There is reference to parliamentary reform at times, but that normally refers to procedural and structural change in the Commons. Lords reform usually refers to changes to the composition of this House. There have been few attempts to address change from the perspective of Parliament as Parliament.

That is why I am a signatory of the alternative report. I have previously argued the case in this House for a constitutional convention, to undertake an exercise in constitutional cartography. Significant constitutional change is difficult to reverse. It usually has significant consequences for other parts of our constitutional framework. We need to get this right. Contrary to what some have said, the place of the second Chamber has not been thoroughly thought through. The report of the Joint Committee has demonstrated what is wrong with the Government’s proposals. The report, though, should not be the end of a process of examining the place of the second Chamber, but rather an impetus to look holistically at our constitutional arrangements. We cannot afford to get it wrong.

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[Lord Ashdown of Norton-sub-Hamdon]

He came here by an act of patronage, then, which is the point I was seeking to make.

Let me cite some statistics that may illustrate the point. Despite all the arguments made about primacy, et cetera, all the arguments made that we have to work out the new relationship, here are the figures. The House of Lords Library tells me that there are 71 bicameral legislatures around the world of which, leaving aside the micro-nations in the Caribbean whose constitutions were written by us to reflect ours, only seven are not elected second Chambers, seven have no connection with democracy, and seven are appointed, as we are—leaving aside Great Britain. One of them, for reasons that utterly perplex me, is Canada. But the other six may give us cause to pause for a moment. They do not include great democracies. They are Belarus, Bahrain, Yemen, Oman, Jordan and Lesotho. That is the company we keep. Those are not great defenders of democracy. How is it that in every other legislature, all of them with elected second Chambers, issues of primacy, the issues which hold up people’s agreement with democratic reform in this place, are not great problems?

Here is the reason why it is said that we do not have to observe the principles of democracy. My noble friend alluded to it a moment ago. It is because, apparently, it works—in that curious, untidy, rather British way, nevertheless, it works. And if it ain’t broke, don’t fix it. It does not work. There are two functions of a second Chamber. The first is to revise and the second is to hold the Executive to account. The first of those we do rather well. We are graciously permitted to follow along with a gilded poop-scoop, clearing up the mess behind the elephant at the other end of the Corridor, but when it comes to stopping the elephant doing things, when it comes to turning it round, when it comes to delaying it on the really big things that matter, we do not succeed. How can we challenge the Executive on big things when we are a creature of the Executive?

I do not believe that if we had had a reformed, democratic second Chamber, we would have had the poll tax, but we did. I do not believe that we would have gone to war in Iraq either, but we did. The last time that I said that, there was much twittering saying, good heavens, should a second Chamber have the right to say whether a nation goes to war? Yes it should. I see no problem with that. There is no problem with the Senate in America. That has not stopped America going to war. There is no problem with the Senate in France, one of our closest and immediate allies in Libya and which put more troops into Bosnia than any other nation and suffered greater casualties.

[Lord Norton of Louth]

My Lords—

[Lord Ashdown of Norton-sub-Hamdon]

I will make the point and then I will take the noble Lord’s intervention. There is one nation in Europe which may be insufficiently able to take decisions about military action when it needs to, and that is Germany. The Bundesrat, the second Chamber in Germany, has no say over going to war. However, there is no reason why a second Chamber should not be asked whether to ratify treaties or whether it is reasonable to go to war. Why is that possible everywhere else in the world but impossible here?

[Lord Norton of Louth]

My Lords, if a second Chamber can block the nation going to war, what does that tell us about the primacy of the first?

[Lord Ashdown of Norton-sub-Hamdon]

Of course the first Chamber is going to have primacy. That is readily established in every other bicameral system in which there is an elected second Chamber. However, on the issue of whether to go to war, in the United States the President has to get the agreement of both Houses of Congress. Has that seriously prevented the United States going to war? Quite the contrary. This is an issue on which this House, as an elected Chamber, should be able to exercise its rights.

The time has arrived to bring this place up to date. The time has arrived when we have to stop what is not only an anachronism but an undemocratic anachronism. We send our young men out to fight and die and, perhaps worse still, to kill others in the name of democracy but we do not have a democratic second Chamber in this country, as is the case with the vast majority of bicameral systems throughout the world. Why can they cope with democracy but not us? Is our democracy so ineffective and immature and are our institutions so weak that we cannot cope with what they can cope with and we have to resort to the kind of principles that operate in Bahrain and Belarus?

This place is an anachronism and an undemocratic anachronism, and I am in favour of a fully elected second Chamber. However, if the proposition put forward by the committee as a compromise is the best one that we can achieve, I shall happily vote for it. By the way, I also believe that it should be supported by a referendum. The reality is that this is a reform that can no longer wait. Our democracy is in danger. We have to start renewing the democratic structures of this country, and the reform and democratisation of the second Chamber is part of that process. We cannot keep this waiting any longer. We have a proposition; we should take it up and do the business now.

House of Lords: Working Practices

Lord Norton of Louth Excerpts

Monday 27th June 2011 Lords Chamber

[Lord Norton of Louth]

My Lords, I add my congratulations to my noble friend, Lord Goodlad, and the members of the Leader’s Group on producing what I regard as an excellent report. It is wide ranging and constructive and, in my view, acts as an essential road map for the reform of this House.

In the time available, I, too, wish to focus on the legislative process. When I had the honour to chair the Constitution Committee of your Lordships’ House, we published a report in 2004 on Parliament and the Legislative Process. We looked at the legislative process at that, encompassing pre-legislative and post-legislative scrutiny as well as how a Bill is considered, once introduced. This report builds on and reinforces our recommendations and I wish to reiterate what needs to be done. Once a Bill is introduced, Ministers tend to be rather wedded to its contents. For Ministers, success in legislative terms is Royal Assent rather than the effects of the measure, once implemented. Parliament needs to focus more on pre-legislative scrutiny before Ministers’ minds are made up, and on post-legislative scrutiny, to determine whether an Act has achieved what it was intended to achieve. We have made some progress with pre-legislative and post-legislative scrutiny, as my noble friend Lord Strathclyde said, but we need to do much more. This report embodies some essential proposals.

On pre-legislative scrutiny, I commend the recommendations of the group. The group endorsed the Constitution Committee’s view that pre-legislative scrutiny should be the norm and not, as now, the exception. Many of the reasons given by government for avoiding pre-legislative scrutiny do not hold water. I have made the point in the House before that, if a Bill is not to be subject to pre-legislative scrutiny, the Minister in charge of the Bill should be required to make a Statement to the House explaining why not. Even if we cannot compel pre-legislative scrutiny, we can at least ensure that Ministers justify their actions. We need to work on government to get Ministers away from the mindset that they must rush to legislate. There is a culture of legislating almost for the sake of it. We need more rigorous mechanisms in place to limit the urge to legislate.

Once a Bill is introduced, it should be subject to more rigorous scrutiny than is presently the case. We tend to think that our scrutiny is better than that of the other place. When it comes to taking evidence, the Commons is way ahead of us. I very much welcome the Leader’s Group recommendation that Bills should be amenable to scrutiny by a Public Bill Committee, similar to that employed in the Commons. I would be somewhat more radical than the Leader’s Group. The Constitution Committee recommended that every government Bill should be subject to examination at some stage during its passage by an evidence-taking committee. I think that it should be the norm for a government Bill starting life in this House to be examined in a Public Bill Committee. That applies even if it has had pre-legislative scrutiny. Committee scrutiny may be necessary to see to what extent the Government have taken on board recommendations made at the pre-legislative stage and to examine what new material, which may be substantial, has been included by government. I think that sending all government Bills to Public Bill Committees should be the default option, with reasons having to be given on why a Bill should not receive such scrutiny.

The Leader’s Group recommends, as we have heard, the appointment of a legislative standards committee. I think that its reasons for so doing are persuasive, but I wish to link the recommendation with that for more rigorous post-legislative scrutiny. In the light of the Constitution Committee’s report, progress was made in respect of post-legislative scrutiny, or rather post-legislative review. We need to build on that to ensure effective scrutiny by Parliament. The existing mechanism, as the report recognises, is inadequate. The Law Commission recommended a Joint Committee to undertake post-legislative review. If we cannot get a Joint Committee, I would establish one in this House. What I would propose, though, is merging it with the proposal for a legislative standards committee. This would enable us to make more efficient use of our resources and enable the committee to maximise expertise in the legislative process. We could thus have a committee that considers the form of legislation and advises on best practice, both in terms of the construction of Bills and post-legislative review, as well as undertaking substantive inquiries on particular Acts.

I attach great importance to these recommendations. They would allow the House to play to its strengths and enhance the scrutiny of legislation. They are proposals that are essentially within the gift of the House. We can move quickly to establish a legislative standards committee, resolve that government Bills shall normally be referred to a Public Bill Committee, and require Ministers to explain why any Bill introduced without pre-legislative scrutiny should be considered by the House. I therefore commend these proposals. I think that the other recommendations of the report merit serious consideration. It is an excellent report. Reform is necessary and urgent.

House of Lords: Reform

Lord Norton of Louth Excerpts

Wednesday 22nd June 2011 Lords Chamber

[Lord Strathclyde]

That this House takes note of the Government’s proposals for reform of the House of Lords set out in Cm 8077.

[Lord Norton of Louth]

My Lords, as my name is one of those being put forward to serve on the Joint Committee, I shall not address the detail of the Bill; instead, I shall address the wider context. The Joint Committee will look in detail at the specific contents, and the right reverend Prelate the Bishop of Leicester provided us yesterday with an excellent template for assessing the Bill.

It might be helpful for my noble friend to clarify a number of points relating primarily to the demand, purpose and consequences of the Government’s proposals. I begin with demand. I detected yesterday a whiff of the cod liver oil approach; it is good for you whether you like it or not. I distinguish between demand and support. I also distinguish between support for a principle and support for the means to deliver on that principle.

I have a specific question: what clear empirical evidence is there of demand for the Bill? I hear the argument that we should not let the views of the public determine the issue, but if we are to do things in the interests of voters in this particular form, it would at least be appropriate to consider their views. The last in-depth survey I saw was the Ipsos MORI poll of 2007. Do the Government have more contemporary data?

Could my noble friend also tell us what the identifiable problem is that the Bill is intended to address? Various justifications are offered. One is clearly that the election of the second Chamber is the democratic option. That is advanced as if it is self-evidently true. My noble friend Lord Campbell of Alloway raised a fundamental question yesterday; democracy is a contested concept—a point that was developed by the right reverend Prelate the Bishop of Exeter. If we take the definition of representative democracy offered by Schmitter and Karl—that it is,

“a system of governance in which rulers are held accountable for their actions in the public realm by citizens, acting indirectly through the competition and co-operation of their representatives”—

the draft Bill before us is not the democratic option, because there is election but no accountability.

In any event, in a situation of asymmetrical bicameralism, in which the elected Chamber enjoys primacy, it does not follow that Members of the second Chamber necessarily have to be elected for the system to be judged to be democratic. Indeed, if the accountability of government is the basis of the definition, it is possible to argue that an elected second Chamber undermines the core accountability at the heart of our existing system. Of course there is a counterargument, but that merely serves to make my point: that we are dealing with a contested concept. We cannot proceed on the basis of an assumed agreement as to its meaning.

The same could be said about the concept of legitimacy. It would be helpful to know how the Government define the concept and then relate that to how they believe the legitimacy, once defined, of the elected 80 per cent will embrace the unelected 20 per cent—or will the 20 per cent be somehow illegitimate?

On definition, it would also be helpful to know how the Government define primacy in the context of the relationship between the two Houses. Despite the general saving clause, Clause 2, my noble friend Lord Strathclyde and the Deputy Prime Minister have both conceded that the relationship between the two Chambers will change over time. The noble Lord, Lord Ashdown, told us that one can have an elected second Chamber but maintain the primacy, if not the supremacy, of the Commons. He also told us that an elected second Chamber may have prevented an unwise war. I am not sure how one can reconcile those two statements. Where does primacy begin and end?

The noble Lord, Lord Ashdown, also introduced a comparative element. Only a minority of second Chambers are wholly elected. Elected second Chambers are to be found predominantly in federal nations. It is not clear what purpose would be served by an elected second Chamber in a unitary state, where electors would be voting for members of that Chamber in exactly the same capacity as they would be voting for members of the first. It injects an element of redundancy into the system. I thus invite my noble friend to tell us precisely what problem is being addressed by the Bill.

I turn from the perceived problem to the proposed solution. There is a profound difference between situations where a second Chamber is crafted as part of a new constitution and where a change is made within the context of an established polity. The right reverend Prelate the Bishop of Exeter raised this yesterday. Very few studies have been undertaken of second Chambers as second Chambers, let alone of changes to them in established democracies. In drawing together the findings of one study of changes to second Chambers in leading western nations, Meg Russell and Mark Sandford concluded, in an article in the Journal of Legislative Studies—I declare an interest as editor of the journal—

“These examples suggest that the design of second Chambers is very difficult to get right. They may be criticised for having too little power, or on the other hand of having too much; for being too democratic, or not democratic enough; for being sidelined and irrelevant or for being a carbon-copy of the lower house. When considering why upper house reform has not happened, one of the first answers has to be lack of clarity over the purpose of the upper house … As Mughan and Patterson have put it, second Chambers remain ‘essentially contested institutions’”.

In essence, it is very difficult to get right. This points to the crucial importance of ensuring that change is well grounded in an understanding not only of what is required—that is a clear and accepted goal—but of a clear recognition of the means for achieving it. Could my noble friend therefore tell us what studies have been undertaken or utilised by the Government of practice elsewhere, in terms of moving from one second Chamber to another, in order to determine that this measure is the best means for achieving the Government’s goals? In short, I think it would be of value to the House, and to the Joint Committee, to know what studies have been undertaken or commissioned by the Government as to the demand for, and consequences of, the Bill. That will provide a solid basis for the detailed work that is now to be undertaken, and to which I for one, will devote myself on behalf of the House.

[Lord Peston]

Could I ask the noble Lord why he did not include, in an excellent speech, one other question that we need to ask the government Front Bench—whether it has any intention of taking any notice of what the overwhelming majority of their Lordships are saying?

[Lord Norton of Louth]

I am grateful for that additional, very pertinent question. Given the time limit, I had to condense my speech from about 20 questions.

Parliamentary Voting System and Constituencies Bill

Lord Norton of Louth Excerpts

Wednesday 26th January 2011 Lords Chamber

Moved by

[Lord Norton of Louth]

91A: After Clause 11, line 12, leave out from “650,” to end of line 14 and insert “the number of holders of Ministerial offices entitled to sit and vote in the House of Commons referred to in section 2(1) must not exceed 80”

[Lord Norton of Louth]

My Lords, the amendment of the noble and learned Lord, Lord Falconer of Thoroton, as he just outlined, is premised on the belief that reducing the number of MPs creates a problem in that the proportion of Ministers in the other place then becomes greater than at present. My starting point is different. My contention is that there are already too many Ministers. Reducing the number of Ministers exacerbates rather than creates a problem.

The size of the so-called payroll vote in the House of Commons, including Parliamentary Private Secretaries, has grown over the years. In 1950, it constituted 15 per cent of the House. It now constitutes 21 per cent. Expressed as a proportion of the number of MPs in the coalition parties, it is 38 per cent.

I accept the case for Ministers sitting in Parliament. However, Ministers are members of a body that is expected to subject the Government to critical scrutiny and to hold them to account. The capacity to fulfil that task, both in voice and vote, is limited if the votes at the disposal of the Whips increase. A consequence of the Bill is that the proportion of the House not able to call the Government to account becomes even larger.

I appreciate that there is an argument that the number of ministerial posts has increased in order to meet growing demands of government. However, as I said in evidence to the Public Administration Committee in the other place, I have seen no study to support that contention. There is an alternative explanation: that the growth has been for political reasons, providing a greater pool of patronage appointments available to the Prime Minister. In my evidence to the Public Administration Committee, I quoted Jonathan Powell, Tony Blair’s former chief of staff, in his book, The New Machiavelli, where he wrote:

“If prime ministers had their way they would appoint all the MPs on their benches to ministerial office. The payroll vote is an essential parliamentary tool and the bigger it is, the better”.

The patronage explanation has found support from a range of sources. The claim that there are too many Ministers has been supported by, among others, former Prime Minister Sir John Major and my noble friend Lord Hurd of Westwell. My noble friend in his evidence in 2000 to the Conservative Party’s Commission to Strengthen Parliament, which I chaired, argued that the number of Ministers could be reduced without undermining the essential tasks of government. He said that,

“a decision by an incoming prime minister to abolish twenty ministerial posts at different levels would not only be popular but would be followed immediately by an adjustment of workload. The whips and those who enjoy exercising or receiving patronage would be dismayed, but the benefits would be great.”

A former Cabinet Secretary, the noble Lord, Lord Turnbull, told the Public Administration Committee that some tasks could be carried out by officials. There is also the argument that some tasks are not necessary anyway. Ministerial work tends to expand to fill the time available—a point well made by a former Minister, Chris Mullin.

What is required is a greater emphasis on quality, rather than quantity. The emphasis has been on quantity for the sake of patronage, rather than on quality for the sake of good government. The growth of the payroll vote has strengthened the position of Government at the expense of the House of Commons. I contend that there is no need for so many Ministers. Ministers are largely amateurs in their roles as Ministers. Providing better training for them, and redistributing some tasks to Whips, as happens in this House, would ensure there was no reduction in efficiency. If anything I would contend the reverse.

The Commission to Strengthen Parliament agreed with my noble friend Lord Hurd and concluded:

“The case for reducing the number of ministers is compelling on its merits. It also has a number of beneficial consequences. Limiting the number of ministers increases the number of MPs who are not committed to government by the doctrine of collective responsibility. Narrowing the route to ministerial office may serve to make attractive the alternative careers in the House of Commons. We believe that these benefits should not be negated by extending patronage through other routes”.

We recommended that the number of Ministers in Cabinet should be kept at 20 and the number of other Ministers capped at 50. That is a little more than the number suggested by my noble friend Lord Hurd. Back in 1940-41, the Herbert Committee recommended an even lower figure, believing that government could be carried on by 60 Ministers. My right honourable friend Iain Duncan Smith introduced a Private Member’s Bill in the 1999-2000 Session to place an absolute limit on the number of Ministers at 82. In 2006, my honourable friend Jeremy Browne introduced a Bill to reduce the number of ministerial salaries payable from 83 to 60.

My amendment is a relatively modest one. It seeks to reduce the cap on the number of Ministers who can sit—paid or unpaid—in the House of Commons from 95 to 80. It is modest but essential.

I conclude by emphasising the constitutional significance of this amendment. When I raised the issue on Second Reading, my noble friend Lord McNally treated it somewhat dismissively, as an issue that could be discussed later, after the passage of the Bill. The constitutional import of the amendment is on a par with that of reducing the number of MPs. If the number of MPs is reduced, then the proportion of the other place that forms the Government increases, to the advantage of government and to the detriment of the House of Commons in being able to call to account that part of it which forms the Government.

My starting point is that there are already too many Ministers and reducing the number of MPs will exacerbate the problem. There has been, as I have indicated, a steady increase in the size of the payroll vote in the other place, and now is the time to reverse the process and to strengthen the House of Commons in its capacity to call the Government to account. I beg to move.

--- Later in debate ---

[Baroness Farrington of Ribbleton]

And he survived.

[Lord Norton of Louth]

My Lords, I was tempted by the noble Lord, Lord Howarth, who suggested that we were in seminar mode. In that case I might feel the need to start allocating marks, and one or two people might not come out of it too well. I was initially encouraged by my noble friend’s “but”, although it was not as big a “but” as I would have liked. I hope between now and Report that he will go away and reflect on it so that if there are to be proposals, he can put a bit more flesh on the bone so that we know what they are going to be. I regard this to be as important as reducing the number of MPs. There is an extraordinarily important constitutional point about the relationship between the House of Commons and the part of it that forms the Government.

My noble friend made the legitimate point that the amendment cannot take into account the number of PPSs in the Commons. I understand that it cannot really be dealt with by statute. However, I hope that we might address it separately because there is an issue about PPSs, not just in quantity but in their role. Over time their latitude to vote against the Government has been constricted, and I am concerned now by how they are dealt with in the Ministerial Code, in which they are essentially members of the Government for the purpose of voting but Back-Benchers for the purpose of sitting on Select Committees. That is an issue to be pursued. The obvious point in the context of what my noble friend was saying is that if you reduce the number of Ministers, you reduce the number of people who require PPSs, so to some extent that addresses part of the problem but there is quite a long way still to go.

This is an extraordinarily important issue, so I hope my noble friend will reflect on what he has heard. I am grateful for the support that I have received from all parts of the Chamber, not least from the noble Lord opposite. The only point that I will make is that my amendment has an advantage over that of the noble and learned Lord, Lord Falconer of Thoroton, in that it comes up with a whole number. If one reduces the number proportionately, one ends up with a reduction of something like seven and a half Ministers. An incredibly important issue is at stake here, and I hope that my noble friend will reflect very seriously on it. For the moment, I beg leave to withdraw my amendment.

Amendment 91A (to Amendment 91) withdrawn.

Parliamentary Voting System and Constituencies Bill

Lord Norton of Louth Excerpts

Wednesday 8th December 2010 Lords Chamber

[Lord Norton of Louth]

My Lords, it strikes me that the amendment prompts three questions. The first is whether we should change the date, and that is what my noble friend Lord Hamilton and some others have addressed. The second is whether this is a question that is appropriate to be included in the referendum. That is the substantial point that we should address. There are various problems in including this question. One has already been alluded to: it is a limited choice. It may be that electors prefer to go on a Monday or a Sunday, so we do not know whether providing this dichotomous choice will reflect the actual preferences of electors, as they are being offered too limited a choice. Another problem—it is a technical point—concerns what would happen if electors expressed a preference for Saturday rather than Thursday as far as the Bill is drawn. We know what will happen if they vote yes on the question of AV, but the Bill is merely silent as to what the consequence would be, so in effect it would be akin to an opinion poll.

The third and most important point is why we should have this question rather than others. We will be looking at other questions to be included, but priorities are important. If we start adding to it, there is a danger of overdoing it, and I am not sure this question should take priority for the simple reason that we could find out through an opinion poll. I think that that would be sufficient for these purposes.

[Lord Falconer of Thoroton]

My Lords, this has been a very interesting debate. It is one that is had practically every time we have any Bill that mentions voting. The facts are interesting. Since 1935, every general election has been held on a Thursday. In 1931, it was held on a Tuesday. In 1922 and 1924, elections took place on Wednesdays, and in December 1918, as my noble friend Lord Snape said, election day was a Saturday, so weekend voting is not a new idea. There is no statutory requirement for elections to held on Thursdays. They could be held on any weekday except Christmas Eve, Christmas Day, Good Friday, a Bank Holiday, or any day appointed for public thanksgiving or mourning. It was in 1983 that Saturday and Sunday were also designated as dies non under the parliamentary election rules in the Representation of the People Act. This amendment gives an opportunity to debate whether Saturday should be a dies non, but not Sunday.

To deal with the point made by the noble Lord, Lord Norton of Louth, I emphatically think this is obviously not a question for a referendum. If we start voting in a referendum on whether it should be Thursday or Saturday, goodness knows what we will then be voting on in a referendum. I am opposed to it being in a referendum. Referendums should be kept for constitutional questions. I know from talking to my noble friend Lord Snape that that of course was not his intention. His intention was that we should debate the issue in relation to whether it is appropriate. I agree completely with the approach taken by my noble friend Lord Rooker on whether it increases turnout. We all agree that we should try to increase turnout. Attractive as the approach taken by the noble Lord, Lord Renton of Mount Harry is, that he has never had any trouble on Thursdays—because he has always won his elections, presumably, that is why he likes Thursday—I am not necessarily sure that should be the bar to it.

I agree with the noble Lord, Lord Norton of Louth, that we should look into the question. In fact, pilots have taken place in local elections in relation to Saturdays and it would be helpful to hear from the Government what the evaluation of those pilots was and what the conclusion in relation to it is. Ultimately the test is the one that my noble friend Lord Rooker sets: does it increase turnout? If it does, then I hope that the Government will think about doing it seriously.

--- Later in debate ---

[Lord Hamilton of Epsom]

My Lords, I very much support the noble Lord, Lord Stoddart: and the noble Lord, Lord Rooker, on his previous interventions. We are greatly reluctant about compulsory voting, which has to be right. People have to have the option of not voting at all. I am afraid that on this issue I am not with the noble Lord, Lord Snape, as I was on his previous amendment, but I was rather attracted by his suggestion of incentives to vote, rather than doing what the Australians always purport to do, which is to fine people who do not vote. I do not quite know how many Australians get fined for not voting, but I suspect that it is not a very efficient system.

However, an incentive to enable people to vote strikes me as rather attractive. An incentive that takes the form of, say, a voucher to knock something off your rates or something of that sort, which you are given in the polling station, would encourage people to vote in person. That would get us away from the problem of the growing number of postal votes and all the fraud involved in that, which was alluded to in an earlier discussion.

[Lord Norton of Louth]

My Lords, I shall not repeat my earlier points about whether it should be included in the Bill, which I will take as given. I will briefly address the substance of the argument. I acknowledge that there are quite substantial arguments for compulsory voting, but my view is very much along the lines advanced by the noble Lord, Lord Stoddart of Swindon. Voting should be regarded as a civic duty. It should not be a statutory obligation. If people do not wish to vote, we should not force them to vote. I am also a bit wary of the argument that is sometimes used in favour of compulsory voting: that there is an increasing disaffection with politics, which is why people are not voting, so there should be compulsory voting.

I do not find particularly attractive the argument that we should say to people, “Look, you are being put off politics, therefore we are going to force you to vote”. That would increase their disaffection rather than ameliorate it. I do not find the argument persuasive, although I accept that there are arguments on the other side. I rather warm to the thinking advanced about incentives to get people to the polling station. That is well worth exploring, but with the obvious proviso of “not in this Bill”.

[Lord Bach]

My Lords, this is another interesting debate that was started by my noble friend. The amendment does not necessarily say that compulsory voting is a good or a bad thing. It just asks that this might be added to the referendum that the Government intend. At great risk of taking a slight difference of opinion to that of the noble Lord, Lord Norton, this is probably a better question for a referendum than the previous amendment.

[Lord Norton of Louth]

It strikes me that there is an interesting argument here. If this is put in a referendum, the sort of people who will turn out to vote will probably favour compulsory voting. Of course, those who are against it will not go to the polling station.

[Lord Bach]

That, of course, is the danger with the referendum in the first place perhaps. The right to vote is obviously very precious, and we should encourage people to use it as much as possible. As a descendent of Mrs Pankhurst, dare I say that the suffragettes who fought—some, of course, died—in that cause would see this debate as important. Of course they were fighting for the right to vote, not for the compulsion to do so, but at some stage in the future the House might want to give rather more time to this interesting debate than it will this afternoon, for obvious reasons.

Let me make one thing clear. While it may not be a brave view—but it is the truth—I can say from the Front Bench that we have no particular opinion either way as to whether compulsory voting is right or wrong, and I daresay that may also be the view of the Government. It is very much a matter of individual judgment. Compulsory voting has a long and distinguished history. I believe it began in ancient Greece where it was every citizen’s duty to participate in decision-making. Those in favour of compulsory votes point to the argument that a Government elected in such circumstances can claim greater legitimacy because it removes the possibility of a party winning an election on 40 per cent of the vote when the turnout stands at just over 60 per cent.

[Lord Norton of Louth]

I refer back to the earlier point made by the noble Lord. He said that he does not have a view either way. What would he do if there was compulsory voting in this House?

[Lord Bach]

My Lords, I was careful to say that it was the Front Bench of the Official Opposition that had no official view either way. As it happens I, too, do not have a particularly strong view either way. However, I would say that the Australian experiment in compulsory voting is one that we need to look at quite carefully. It does not seem to be a complete failure, to put it mildly. What is important is that it appears to be understood and accepted by voters in Australia. Obviously compulsory voting boosts turnout and, as the noble Lord, Lord Tyler, has already told us, spoiling one’s ballot paper is a distinct option if one is not minded to vote. The voter’s power to choose remains unrestrained, and there is obviously a bit of learning by experience if you have to vote, although there are problems with compulsory voting.

Voting was described as a civic duty by the noble Lord, Lord Norton, but perhaps it is a civic right and one that no one in a free country should be compelled to exercise. Fines imposed for non-voting could be regarded as some kind of restriction on individual freedom, and in this country in particular there would be administrative difficulties, to put it mildly, in making voting compulsory, as well as many other more historic difficulties in actually putting it into effect.

I want to ask the Leader of the House one question, because different views have been expressed from the government Front Bench over the past few months, although not in this debate. As I understand it, it is compulsory in this country to register to vote. In other words, there is a sanction if you do not register. This is not meant to be a trick question. It is quite important for the House to understand whether it is compulsory to register, and what we mean by “compulsory” in this sense. In theory, at least, fines can be imposed on those who do not register, but of course in practice that does not happen. If that is true about registration, it would certainly be true for compulsory voting.

This is a subject for a much longer and more detailed debate than we can give it this evening. A referendum question might be a way of canvassing public opinion on the matter.

Parliamentary Voting System and Constituencies Bill

Lord Norton of Louth Excerpts

Wednesday 8th December 2010 Lords Chamber

[Lord Tyler]

That is what happens under the present system. The present system is totally inadequate in that respect because you have to plump. In answer to the noble Lord, Lord Rooker, who undoubtedly understands the point I am making, I say that under the present system many people in this country feel that they are forced to vote in a very artificial way because their first preference is not likely to win. I am arguing that in many parts of the country people do not bother to register or to vote at all because they think that their first preference is not likely to win. The safer the seat—

[Lord Norton of Louth]

My noble friend’s argument is based on the premise that people are aware that under a different system—in this case AV—their votes will make more of a difference than under the present system. I should be interested to know what his empirical evidence is for that.

[Lord Tyler]

The empirical evidence, of course, is the way in which so many other elections, outwith elections to Parliament, operate. I think I am right in saying that all the parties now select their candidates through a form of AV and it is seen to be very effective. Many other professional organisations and trade unions use it and, as was pointed out earlier, the Lord Speaker was elected under that system. There are plenty of examples where people understand that by making a number of choices or preferences they can make a difference.

Parliamentary Voting System and Constituencies Bill

Lord Norton of Louth Excerpts

Monday 15th November 2010 Lords Chamber

[Lord Norton of Louth]

My Lords, in a few hours I am catching a train back to Hull because I am teaching in the morning before returning tomorrow afternoon. I mention that because I have just worked out that I will have a bigger audience in my seminar in the morning than I have here this evening.

As various speakers have noted, this measure is two Bills in one. I deprecated the practice of the previous Government of bringing forward omnibus Bills and I do not endorse its continuation under the present one. I shall address the two parts of the Bill. I start with two overarching concerns, the first of which has been variously mentioned this evening. Unrelated to the merits of the particular proposals, it is the speed with which the Bill has been brought forward. As the Constitution Committee has noted in its report on the Bill, and I declare an interest as a member of that committee, it is to be regretted that there was not time for consultation or pre-legislative scrutiny. I know there are reasons why Bills cannot always be subject to such scrutiny, not least in the first Session of a new Parliament under a new Government, but Bills in such a situation have usually been contemplated and worked on prior to the general election. In this case, because the government manifesto or programme was a post-election product, there is a somewhat greater case for rigorous scrutiny.

The second concern is the relationship of the Bill, primarily Part 1, to the stated aims of the Government. I am uncertain about how a referendum confined to the alternative vote relates to the principles enunciated by Ministers as underpinning proposals for constitutional change. Voters are to be offered a referendum but on a restricted choice, which derives from a compromise; I understand the politics. My concern is how electors will feel about being offered such a choice. It does not necessarily deliver on the Government’s stated aims, and I have problems with the premise that underpins the proposals for change. Like my noble friend Lord Lamont of Lerwick, I do not accept that our political system is broken. There has been a crisis of confidence, but it has been in politicians rather than the political system. Electing the same people by somewhat different means will not restore confidence. The answer lies in behaviour and not in institutional change. I regard what we are engaged in here as a form of displacement activity.

On Part 1, I have a principled objection to referendums. However, the Government, like their predecessor, do not. As the Constitution Committee notes, if there are to be referendums then reform of the voting system is a constitutional issue that merits being subject to one. However, the proposal raises two basic problems. Reform of or, as is proposed, abolition of the House of Lords is also a major constitutional issue. Why a referendum on one but not the other? The other problem is the provision to give effect to change if more electors vote yes than no. If there is a turnout of only 20 per cent of electors and they split 51 per cent to 49 per cent in favour of change, to what extent can one claim that the change enjoys legitimacy through endorsement by the people? I appreciate that there are problems with thresholds. One has a choice between having some form of threshold, be it in terms of turnout or the proportion of those voting yes, or omitting or amending Clause 8 so that the implementation of a yes vote is not automatic but instead is left to Parliament to determine what to do in the light of the turnout and outcome.

On the second part of the Bill, I shall focus on the reduction in the number of MPs rather than on constituency boundaries. On the provisions for boundary changes, I confine myself to endorsing some of the proposals embodied in the report by the British Academy Policy Centre entitled Drawing a New Constituency Map for the United Kingdom. In particular, I see the case for providing for an extra period of consultation, following publication of representations received in the initial 12-week period, in order for counterobjections to be made, thus following the practice of New Zealand and Australia. I also endorse the proposal for more assistant commissioners to be appointed, not least for dealing with the representations made on boundary proposals.

I turn to Clause 11 and the provision that the number of constituencies in the United Kingdom shall be 600. I support a reduction in the size of the House of Commons. I chaired the Conservative Party's Commission to Strengthen Parliament, which reported in 2000; my noble friend Lord Forsyth was a member. We were more radical than what is proposed here in terms of numbers, though less ambitious in terms of timing. We favoured a staggered reduction in the number of constituencies. That would give time for not only the Boundary Commission to prepare, but also the parties and the Members themselves.

My noble friend the Marquess of Salisbury introduced a Parliamentary Government Bill in 1999 providing for a staggered reduction over a 20-year period. At the end of that period there would be a House of 400 members. We recommended a staggered reduction resulting in a House of 500. In our view, that would leave us with constituencies that were still quite viable—some MPs already serve their constituents well in seats with electorates in excess of 90,000—and not damage the capacity of the House of Commons to fulfil its functions effectively. Indeed, we believed it could enhance the efficiency of the House, given that we identified the current number as contributing to the strain on the House’s resources. Better resources for fewer Members would, in our view, aid rather than hinder the efficiency of the House. We also took the view, though it may seem counterintuitive, that larger constituencies may facilitate a closer, longer-term relationship between Member and constituents, in that less radical changes would be required to constituency boundaries to take effect of demographic changes.

I accept that there is no magic number. As I say, our view was that a House of 500 could deliver efficiently what is expected of the House of Commons, but one could make a case for a smaller or even a greater reduction. The principal point is that there is a case for reducing the size of the House. However, there is a necessary corollary to such a reduction—that there must be a corresponding reduction in the number of Ministers. Indeed, in our report we argued that there was a case for having fewer Ministers, even if the size of the House of Commons remained unchanged. Various people who gave evidence to our commission, including former Ministers, argued that there were too many Ministers. We recognised that Ministers were seen to be busy people but, as Frank Field put it to us, the amount of work increased to occupy the time made available by Ministers. The case for a reduction in numbers was well put to us by my noble friend Lord Hurd of Westwell, who told us that,

“a decision by an incoming Prime Minister to abolish twenty ministerial posts at different levels would not only be popular but would be followed immediately by an adjustment of workload. The Whips and those who enjoy exercising or receiving patronage would be dismayed, but the benefits would be great”.

A reduction is not only desirable but also essential if the number of MPs is reduced. So far, the Government have resisted attempts to amend the Bill to provide for a reduction proportionate to the reduction in the size of the House. The Minister in the other place, David Heath, argued that the demands of government necessitated the number of Ministers. If my noble friend wishes to argue that when the debate finishes, I will be interested to see what empirical support he is able to provide.

The other argument advanced is that the issue could be considered later and does not need to be addressed in the Bill. I do not accept that argument. I do not regard reducing the size of the House of Commons by almost 10 per cent to be a matter of greater importance than the fundamental relationship between Parliament and the Executive—in this case, between the House of Commons and the part of it that forms the Government. I do not wish to see the Government strengthened through a reduction in the number of MPs. The so-called payroll vote—or rather the jobsworth vote, as it includes unpaid PPSs—is already too large. It will be even more so if the Bill is enacted. I know that providing for a reduction in the number of Ministers in the other place does not then deal with the number of Ministers in this House or with PPSs but that is not an argument for not amending the Bill. There is a compelling case for reducing the number of Ministers and for doing so now, and then for addressing the other elements of patronage. There are too many PPSs, for example, and their independence has been eroded over time, but that fact is not a reason not to move now in respect of the number of Ministers.

When we published our report, the then party leader, William Hague, described it as a route map for a future Conservative Government. I hope the Government will now revisit this issue with some urgency. It is a matter of constitutional significance.

Legislation: Pre-legislative Scrutiny

Lord Norton of Louth Excerpts

Thursday 28th October 2010 Lords Chamber

[Lord Strathclyde]

My Lords, I do not agree with either the general premise of the noble Baroness’s argument or the specific examples. The Parliamentary Voting System and Constituencies Bill was published on 22 July and the Committee stage in another place did not begin until October. So there was plenty of time, albeit there was a Summer Recess, for it to be examined.

[Lord Norton of Louth]

My Lords, does my noble friend agree with me that there should be a presumption in favour of pre-legislative scrutiny? Does he think it desirable that if a Bill is brought forward without pre-legislative scrutiny, the Minister sponsoring the Bill should at least make a Statement to Parliament explaining why the Bill has not been so subject?

[Lord Strathclyde]

My Lords, I am sure that my noble friend will find as the Parliament gathers pace that there are more and more Bills for pre-legislative scrutiny. I made the case at the beginning that—in the very first Session of a Parliament, particularly when many of the ideas we are bringing forward were tested at the anvil of election and, indeed, while we were in opposition—it would be unfair to have a mandatory basis for pre-legislative scrutiny.