Lords appointments urgently need reforming: but how?

Meg-Russell

The appointment of new peers last week has pushed the size of the Lords to its greatest since it was last reformed in 1999. Meg Russell highlights the issues behind having such a large and ‘unruly’ Upper House and argues the situation has now reached crisis point. Reform to both allow existing peers to depart and control new appointments is urgently required.

Recent weeks have seen renewed controversy about David Cameron’s appointments to the House of Lords, with announcement of 22 new peers. Various factors have contributed to frustration about these appointments, particularly among those in the Lords itself. First, they came on the back of the controversy about the Lords Leader being downgraded from Cabinet membership in the reshuffle – a matter that remains unresolved. Second, an August announcement during parliamentary recess necessarily arouses suspicion that Number 10 wanted to avoid this matter being debated (in fact 2014 is the second year in a row to follow this pattern – and while announcements in the so-called political ‘silly season’ may dodge parliamentary scrutiny, they probably exacerbate press attention). Third, the fact that several appointees have been major party donors has reignited concerns about ‘cash for peerages’. But the biggest problems are first, the effect that yet more new appointments will have on the size, and therefore the effective functioning, of the House of Lords, and second, the Prime Minister’s ability to manipulate the party balance in the chamber to favour his own side. Until the system is reformed, each new round of appointments is also destined to attract negative news stories that damage the reputation of parliament and that of the Prime Minister.

It is important to begin with some objective facts. The latest set of appointments pushes the size of the Lords to by far its greatest since it was last reformed in 1999, as shown in the graph below:

Source: Figures published by House of Lords information Office (for January each year), updated to August 2014

Source: Figures published by House of Lords information Office (for January each year), updated to August 2014

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The Byles/Steel bill – unless amended – holds grave dangers for the Lords

On Friday 28 February Dan Byles’ Private Member’s Bill on Lords reform completed its Commons passage. It is now in the Lords, and will be sponsored by David Steel. The bill, which allows retirement from the Lords and expulsion of non-attendees and serious criminals, has been presented as a small, uncontroversial “housekeeping” measure. But as already argued in an earlier blog post, as currently drafted it would in fact introduce a very major change that would alter the Lords fundamentally, and in very undesirable ways.

I will not repeat the basic arguments in my earlier post, which is still available to read (see here). But it urged an amendment at Commons report stage, to ensure that those allowed to depart the Lords (through retirement or expulsion for non-attendance) cannot immediately run for the House of Commons. Such calls were made throughout the bill’s Commons passage, but have been resisted by ministers. This is both puzzling and very worrying. It is puzzling because a ‘cooling off’ period before those departing the Lords could run for the Commons has been included in numerous earlier proposals, from the Wakeham Royal Commission to the Clegg bill (both of which are quoted in my previous post). It is worrying for reasons that I will now spell out, somewhat more forcefully than before. In the rest of this post I summarise the problem, reflect on what the Lords should do, and end on responses to some points that have been made against the change that I propose – all of them unconvincing.

The bill as drafted (clause 4(5)(b)) explicitly allows departing Lords members to run for the Commons. The problem that this creates applies not to existing peers, who presumably gave up any Commons ambitions when accepting their life peerage. It relates instead to new members appointed after the bill has passed. One of the weaknesses of the debates to date (on which more below) is that they have focused too narrowly on the likely short-term effects, in terms of how many current peers may depart – and insufficiently on the long-term effects, in terms of future appointments. But while there may be small, short-term gains through allowing a few peers to retire, the effects of the bill in the longer term would be far larger, and potentially extremely damaging to the Lords.

To illustrate, let us consider three possible candidates for the Lords once the bill has passed:

  • Candidate A has served two terms as an MP, and is appointed to the Lords in 2015 after narrowly losing his seat. He badly wants to regain his constituency, and spends much of the next five years working there, maintaining a constituency office and regularly campaigning door-to-door.
  • Candidate B has fought several Commons seats unsuccessfully in the past, and after missing out again in 2015 is rewarded with a seat in the Lords. But she still yearns after a Commons career, so seeks reselection as soon as possible, and uses the Lords to try and raise her local profile above that of the incumbent local MP.
  • Candidate C is appointed to the Lords in 2015 after many years working as an adviser to his party leader. From there he starts looking for a Commons constituency, and uses Lords speeches primarily to broadcast his suitability as a future MP, and maybe even a future leader.

Candidates A, B and C are not so very different to many who have been appointed to the Lords in the past – indeed, around 60% of current party peers are either former parliamentary candidates or MPs. The key difference is that such people currently have to weigh up carefully whether they still want a Commons career. Those in doubt will turn down any offer of a peerage; those accepting one will set other ambitions aside. I do not see candidates A, B and C as bad people who are doing anything underhand or inappropriate; it is understandable that they should see the Lords as a useful temporary resting place. Nor would their party leaders be acting improperly; indeed, it is easy to see how and why leaders would embrace these new patronage powers. The point is that the bill as it stands fundamentally changes the calculus both for those offered seats in the Lords, and for those doing the appointing. Unless the route from Lords to Commons is explicitly ruled out, people will understandably conclude that it is fine to use it. If the bill passes in its current form, please have no doubt: these changes are certain to occur.

It should hopefully already be clear what effect this would have on the Lords. Many members would become far more preoccupied with constituency business and campaigning than with parliamentary scrutiny work; many would watch far more carefully what they said, in order to appeal to the media, local voters and their party leaders; in seeking to make Lords debates more eye-catching, they would make those debates more politicised. In addition, many members would become short-term occupants of the Lords, staying only a few years before another career could be developed – with a consequent loss of long-term thinking. Should this be considered fanciful, look (as set out at greater length in my previous post) at Ireland, and more recently Canada. In Ireland chamber-hopping is absolutely the norm, and Senators (despite not being directly elected) spend much of their time on local campaigning work. Only last month I acted as an adviser to the Irish Constitutional Convention, where this problem with their parliament was much lamented.

The Byles bill has been presented as a small “tidying up” measure, but these changes would be fundamental, and major. For hundreds of years (with a couple of exceptions, discussed below) members have been able to move from Commons to Lords but not the other way around. The bill would thus change centuries of British tradition, and the consequences need very careful thinking through. It could be argued to the bill effectively ends life peerages in all but name: allowing members to depart the chamber when they wish, at any age and after any period of service. But members can de facto already do this if they really wish, simply by ceasing to turn up. The one thing that they cannot do is run for the Commons. Perhaps some see advantages in changing these historic arrangements; but if so they should make a positive case for change, out in the open, and subject to proper scrutiny. This has absolutely not happened so far.

During the passage of the Byles bill through the Commons, concerns about these matters were raised repeatedly, particularly by Conservative backbencher Jacob Rees-Mogg. In response, at second reading last October Dan Byles said that, “That is the sort of detail that I would be more than happy to discuss… and we could consider whether some small amendment might be made in Committee” (col. 1005). When a ‘cooling off’ period was specifically suggested, so that departing peers had to wait several years before running for the Commons (as was provided in clause 41 of the Clegg bill), Byles said that “I would be interested to look into whether a time bar solution could be achieved” (col. 1055). Hence it was reasonable to assume that the problem would be resolved by government-backed amendments at committee stage – but it was not. At report stage last week the concerns were repeated. Rees-Mogg proposed amendments (particularly amendment 21) to deal with them, arguing that it was “fundamentally undesirable” (col. 558) for the Lords to become a base for aspirant MPs. Dan Byles responded that “we all agree that we would not want the House of Lords to become a training ground for a seat in the House of Commons” (col. 560). Stephen Twigg, speaking for the opposition frontbench, described this as “a serious issue” and “a risk” (col. 561). The minister likewise said that “We do not want to see the House of Lords become a nursery for the Commons where young hopefuls start their careers” and claimed to “fully understand” the concerns expressed (col. 562). Nonetheless no amendment was made. Despite pressures both behind-the-scenes and in the chamber, ministers had resisted changes to resolve the problem.

These developments demonstrate in part the weakness of the private members’ bill process. The bill had its second reading and report stage on ill-attended Fridays, with little media attention. Its sole committee session lasted a mere 38 minutes. There was no pre-legislative scrutiny, no call for evidence, no opportunity for witnesses to appear, and consequently no outside group engagement. The limited time available also led to great resistance to amendments. This was worse for the Byles bill for most PMBs, due to fears that any Commons amendments would make its Lords passage more difficult. Those in the Commons were warned to stick rigidly to the contents of David Steel’s previous bill on the topic, which had passed the Lords in 2012-13. Steel’s bill had also failed to include a ‘cooling off’ period, but it was a similarly fragile creature, with fears at the time that any amendments would derail it. Yet everyone knew that its prime purpose was as a spur to government action; and once government gets involved, Private Members’ Bills inevitably get tidied up. Now, however, the original Steel bill is being treated as a kind of revered text, which cannot be altered. The deafness to argument which is occurring over this bill is a classic recipe for bad policy-making, and even for policy disaster. On such an important matter it is essential for reasoned amendments to be properly debated and considered.

So the Lords is now left in a dreadful position. Typically when a bill leaves the Commons with outstanding problems, the Lords provides the forum for them to be carefully discussed and sorted out. It would be a terrible irony if this norm was broken with respect to a policy that concerns – and indeed threatens – the House of Lords itself. But the government claims that any Lords amendments will kill the bill, due to lack of time for these to be considered in the Commons. I am reliably advised by Commons clerks that this is not actually true – while there are no Private Member’s Bill Fridays left, several tricks could be used to get necessary Lords amendments through the Commons by May if the government wants the bill. The Lords therefore should carefully consider possible amendments to deal with the problem.

Options include:

  • Inserting clause 41 of Nick Clegg’s bill of 2012, which would require a ‘cooling off’ period of 4 years (which could be amended to a longer period). This seems the preferable and least contentious solution.
  • Simply removing subclause 4(5)(b), which provides that those departing the Lords are not disqualified from “being, or being elected as, a member of that House [i.e. the House of Commons]“. This would retain the current absolute bar on future candidacies – which probably goes too far, and could create legal uncertainty.
  • Restricting retirement provisions to current peers, not new entrants. Also problematic, as pressures for retirement would recur and require further legislation. Would also need to apply to provisions for expulsion by non-attendance, otherwise this creates a loophole.
  • Restricting these same provisions to those aged over 65 (as was suggested by Jacob Rees-Mogg’s unsuccessful amendment 3 at Commons report stage for the first of the provisions). This too would be a reasonable long-term solution.

Any of these amendments would resolve a weakness highlighted by MPs and therefore be unlikely to face Commons opposition. If the Lords does amend the bill, and the government does not deploy the tactics available to get it through the Commons, it is ministers not peers who would be culpable for killing the bill. If the bill is not amended in one of these ways, my reluctant advice to peers would be to resist it.

It pains me greatly to have to suggest this latter outcome, even as a possibility. I have long argued for the next small steps on Lords reform, both publicly (e.g. here and here) and behind-the-scenes. Allowing retirement would clearly be a beneficial next step. But a conspiracy of silence to get a flawed version of retirement onto the statute book is clearly a bad idea, and the threats in the bill as it stands are far too great. I began research in this area 16 years ago precisely in order to offer objective, evidence-based advice on Lords reform. That evidence tells me that any gain from the bill as is will be relatively small, while its long-term consequences will be huge and negative. Opening up a direct route from Lords to Commons, which has been closed for centuries, would be a major constitutional and political change. If this bill is truly about “housekeeping”, then using one of the amendments above to maintain something similar to the status quo is essential.

Postscript
Finally (in a post which is already far too long) the really committed may want to hear some of the arguments which have been made against the ‘cooling off’ period, and why I believe that they are wrong:

Argument 1: Peers have been able to leave the Lords and run for the Commons before, under the 1963 and 1999 Acts.
Response: these changes occurred in very different circumstances, and only ever extended to those who had inherited their seats in the Lords (i.e. entered by accident of birth) not those who had themselves been appointed. Hereditary peers of “first creation” were not covered by the 1963 Act, while the 1999 Act was a one-off exodus. Neither implied any change to the type of people appointed.

Argument 2: The ‘cooling off’ period proposed in other packages has been in the context of election to the second chamber, not appointment.
Response: This is simply untrue. The Wakeham Royal Commission (as quoted in my previous post) was particularly strong on this point, despite proposing a largely appointed house.

Argument 3: Once in the pleasant environment of the Lords, few people will feel motivated to depart for the Commons.
Response: I believe that this argument is naive, and too influenced by feelings among some current peers. It is important to remember that those now in the Lords have – by definition – renounced the option of a future Commons career. But the bill allows people who feel very differently to be appointed, and their party leaders will be tempted to do so. It is undeniable that a Commons career remains a desirable to many people active in politics, for example promising a salary, access to senior ministers, and a chance at a cabinet career. Indeed a majority of current party peers have run (successfully or unsuccessfully) for the Commons in the past.

Argument 4: Introducing a cooling off period would deny democratic rights to people to run for the Commons.
Response: In fact, a bill with a cooling off period (of say 4, 5 or 10 years) would significantly increase freedoms beyond what they are now. Life peers have been barred since 1958 from running for the Commons (and likewise, aside from exception 1 above, this has always applied to hereditary peers). Few have complained about this restriction.

Argument 5: There is no time in the Lords to consider amendments, given that the second reading is occurring so late (28 March).
Response: It is very unfortunate that the sponsors of the bill chose a late second reading date, seemingly to procedurally block the opportunity for amendments. The Companion to Standing Orders does set down minimum time periods between stages (e.g. 14 days between second reading and committee stage), but these are only ‘recommended’, and it is not unusual for them to be breached by agreement of the usual channels. If an amendment is put down, a committee stage will be required to debate it, and one can be provided.

Argument 6: It would be better to get this bill through, and if a problem occurs to then legislate to correct it afterwards.
Response: This is a very dangerous suggestion. Once the legislation is on the statute book there is absolutely no guarantee that it can be changed. A “corrective” PMB in the next session could easily die, or indeed be blocked by ministers. Then once the route from Lords to Commons has been opened post-2015, it would probably prove impossible close it again: such legislation would appear critical of particular individuals who have taken this route, or of their party leaders; party leaders will anyway by then have adjusted to the enhanced patronage that the bill provides. Far better not to take the risk - even if this means waiting for a better safeguarded retirement provision in a future bill.

The Byles bill on Lords reform is important: but needs amending if it’s not to damage the Lords

Lords reform is an ever-running saga. Generally there is no shortage of proposals, but few concrete opportunities for change occur. Throughout the Labour years, after the removal of the hereditary peers in 1999, numerous white papers set out future options, but none put into the shape of a bill. The Coalition did publish a bill, but this was withdrawn following Commons opposition in 2012. Now there is at last a real chance of change: a private member’s bill from Conservative backbencher Dan Byles, which completed its Commons committee stage in January. This has its Commons report stage on 28 February before heading to the Lords.

The Byles bill is not ambitious, but is important. It includes two key provisions, both of which are essentially unarguable, and long overdue: the barring of serious criminals from holding seats in the Lords, and the ability of Lords members to permanently retire. These changes don’t go far enough, admittedly. But they are important next steps on the road to reform. As I chronicle in my book, Lords reform has only ever been achieved through small, incremental steps. While each (e.g. in 1911, 1958 and 1999) was at the time considered small and inadequate, in retrospect such changes were important. A recent report by the Commons Political and Constitutional Reform Committee recognised this truth, and backed the provisions in the Byles bill as sensible.

The government has now put its weight behind the bill, as has the official opposition. There is thus a real chance that it will become law before the end of this session. But it has one key shortcoming, which I had assumed would be addressed during the ‘tidying up’ at committee stage. But it wasn’t. This makes an amendment at Commons report stage is essential, or the Lords could be seriously and inadvertently damaged. Given the timing, this is an urgent matter.

In all of the many proposals that made for Lords reform in recent years, there has been common consent that once the chamber’s members become free to depart, they should not immediately be able to stand for the Commons. Under present arrangements this is not a problem: peers serve for life, and are ineligible to stand (or vote) for the Commons. But changing matters so that a “life peerage” is no longer a life sentence – which is itself welcome – raises the question of what these members should be able to do when they depart. Great consideration was given to this question by the Royal Commission on Lords reform chaired by Lord Wakeham which reported in 2000. It concluded (paragraph 12.21) that:

“[g]iven the kind of membership we wish the second chamber to attract… [w]ould-be career politicians should not be encouraged to see membership of the second chamber as a springboard to membership of the Commons. We recommend, therefore, that members of the second chamber should not be eligible for election to the House of Commons for 10 years following the expiry of their term of membership”.

This principle was subsequently taken up by the House of Commons Public Administration Committee (paragraph 126), a cross-party group of MPs calling for reform (page 38), and the government (paragraph 9.35). The only difference in these proposals was over the length of the “quarantine” period, which varied from 5-10 years. Most recently the coalition’s 2012 bill incorporated the principle, as its clause 41:

Restriction on former members being elected as MPs
(1)A former member of the House of Lords is disqualified from being elected to the House of Commons at an election if the day of the poll is in the disqualification period.
(2)The disqualification period is the period of 4 years and 1 month beginning with the day on which the person ceased to be a member of the House of Lords.
(3)This section does not apply in relation to membership of the House of Lords as a Lord Spiritual.

The four-year period provided here was shorter than those previously suggested, but the principle was clearly recognised. It is therefore strange that when the Byles bill was amended in committee, with amendments clearly approved by the government, this provision was not included as part of the ‘tidying up’. We can speculate why, but it may have been simple oversight.

Why does this matter? Would it be so disastrous to allow members of the Lords to depart and be able to run for the Commons straightaway? I argue that it would. To illustrate, we need look no further than other countries, as illustrated in my first book, and more recently a chapter for the Constitution Society.

In the UK we are accustomed to the Lords being the ‘senior’ chamber, in terms of age and experience, if not in terms of power. The presence of mature people, with a degree of independence from the political parties, is one of the key things that the public values about the Lords. And this ‘senior’ tendency is commonly associated with second chambers: indeed it is why many of them are titled ‘Senate’. But some senates have instead become training grounds for aspiring MPs, meaning that their members are often younger and less experienced, and focused on winning a lower house seat. Ireland is the prime example: in the recent 2011 general election, no fewer than 21 senators out of 60 sought election to the Dail. In the election of 1997, 16 senators departed the chamber to take up lower house seats. The Senate also serves as a temporary resting place for MPs who have lost their seats, until they can contest them again. This changes the dynamic between the chambers fundamentally.

In Canada, where the Senate is appointed, a similar unhealthy pattern is developing. Under Prime Minister Stephen Harper, several members have been appointed to the Senate, only to quit their seats and stand for the House of Commons, then be reappointed as senators if they lose. Witness this description of Fabian Manning:

From 2006 to 2008 he was the Conservative Party of Canada Member of Parliament for the riding of Avalon. After his defeat in the 2008 federal election Manning was appointed to the Canadian Senate on January 2, 2009. He resigned his Senate seat on March 28, 2011, to run for election in his former riding of Avalon in the 2011 federal election, but was unsuccessful. Prime Minister Stephen Harper re-appointed Mr Manning to the Senate on May 25, 2011.

The description of his co-partisan, Larry Smith is similar.

Allowing such chamber-hopping may not be the intention of the government, or of Dan Byles. The Byles bill does at least rule out reappointment to the Lords for a second time. But unless it is amended it could inadvertently allow a similar culture to develop here. There may already be a handful of peers who would like to stand for the Commons (though one would hope not, since they have accepted a peerage for life). But the problem comes particularly with respect to the newly-appointed after the passage of the bill. New Lords arrivals would no longer be taking a position for life, but one that they could freely choose to depart from after a few years. Defeated MPs could take a temporary respite in the Lords, before seeking to win their seats again. It would also be very tempting for party leaders to appoint new young aspirants to the Lords to cut their teeth, before encouraging them to run for a seat in the Commons. The immediate effects of such changes would be threefold. First, more younger members – itself perhaps not such a bad thing.  But second, far closer adherence to the party whip in the Lords, with members ‘watching their back’ so as not to jeopardise a future Commons career. And third, members of the Lords nursing Commons constituencies, in preparation for a future candidacy: much to the cost of their Lords work, and the irritation of MPs.

I’m not suggesting that these changes would occur immediately. As was seen post-1999, it takes time for the culture of appointments to develop in response to a reform. But it nonetheless it will change gradually. Developments since the 1999 reform have been largely positive: appointment of more active members, a more diverse membership, and members with greater confidence to challenge the Commons. The culture change brought about by the Byles bill, unless it is amended, could be far more problematic.

It is not too late for something to be done about this, and for the bill still to reach the statute book in better form. All that is required is for the clause from the coalition’s 2012 bill (reproduced in full above), to be moved and agreed at Commons report stage on 28 February. It is hard to see how the government can object to this, given that it is taken from their own bill. I sincerely hope that politicians in the Commons will heed this call – and that those who care about the Lords will press them to do so. An amendment to the bill in the Lords is also a possibility, but given the limited time for private members’ bills could have the effect of killing the Byles bill off. I very much hope that this will not happen – but I’m afraid to say it could prove preferable to passing the bill into law as it is.

Dr Meg Russell is Deputy Director of the Constitution Unit, and author of The Contemporary House of Lords: Westminster Bicameralism Revived (Oxford University Press, 2013).

Lords reform next steps: small, but urgent!

17th October 2013

Today sees the publication of the House of Commons Political and Constitutional Reform Committee (PCRC) report “House of Lords reform: what next?”. It also sees a story in The Times (paywall) that David Cameron is preparing yet another list of new peers. Nothing could indicate better the need for the kind of small steps that the PCRC recommends. The next steps in Lords reform may be small, but they are increasingly urgent. Tomorrow will see debate in the Commons on a Private Member’s Bill from Conservative backbencher Dan Byles, also on Lords reform. The small steps that it contains are welcome, and definitely worthwhile. But as the PCRC points out, the most burning matters are not contained in the Byles bill, and in fact do not need legislation at all – what they need is urgent and voluntary action by party leaders, and the Prime Minister in particular.

The context for the PCRC report is of course the failure of the government’s bill last year, which sought to move to a largely elected second chamber. Since those events – which showed splits on the government’s side as well as between the parties – there has been a growing feeling that some small changes must be made to the Lords in advance of any larger-scale reform. Everybody accepts that reform cannot occur until after the next election, and even then (as I point out in my recent book) it remains unlikely. In particular there is increasingly serious concern being expressed about the growing size of the House of Lords, which is plainly unsustainable. We pointed out in a high-profile report in 2011 that David Cameron’s rate of appointments had been unprecedented, and that the coalition’s stated goal of rebalancing the Lords in line with general election vote shares could take its size to over 1200. Since the furore caused by that report, few appointments have been made. But this August a further 30 peers were appointed, taking the size of the chamber to a post-1999 high. The Times story suggests that another 30 are in the pipeline, which is worrying to say the least.

Dan Byles’ bill (which is also mirrored by a bill in the Lords from former Lord Speaker Baroness Hayman, that goes further) would legislate to allow permanent retirements from the chamber, and the expulsion of peers convicted of serious criminal offences. In evidence to the PCRC last week (see question 24) Deputy Prime Minister Nick Clegg supported these changes, saying that there was ‘no reason to delay’ in making them happen. This may indicate that the bill will secure explicit government support, and could therefore reach the statute book. Which as a next small step, is welcome.

But as I pointed out in my evidence to the PCRC inquiry, and in a subsequent blogpost, the reform most urgently needed is not to how members can exit the House of Lords, but to how they enter. Even if retirements are allowed, the size of the chamber will still continue to grow unless prime ministerial appointments are regulated. Indeed, any retirement mechanism is likely to fail unless there is agreement between the parties on a formula for new appointments – because peers will be reluctant to depart if they think that all they will achieve by doing so is a weakening of their party (or Crossbench) group. Without an agreed formula on party balance, and on the overall size of the chamber, serious progress is unlikely to be made, meaning that the size of the chamber will continue to spiral upwards – making it both more expensive, and less effective.

Today’s PCRC report, while endorsing the idea of a voluntary retirement scheme and the expulsion of criminals (and thus adding weight to the argument behind the Byles bill), recognises this problem. In its closing paragraph it refers to “agreement on how to determine the relative numerical strengths of the different party groups and the Lords” as the change with “the most potential to have a positive impact on the size of the House”. The report’s summary describes this as “the most crucial” of the reforms that the committee considered. The committee – in line with my own evidence – threw this challenge to the political parties, and the Prime Minister in particular, to resolve. If we are not to be blighted with an ever larger, more expensive and less effective House of Lords, the government and the parties must do so with urgency. Those who could help bash out the right formula, and help facilitate such talks, such as the PCRC itself, the Lords Constitution Committee, the House of Lords Appointments Commission and perhaps the Lord Speaker should also now consider what part they can play. Meanwhile, until such agreement has been reached, making the new appointments indicated in today’s Times would seem inappropriate. Demanding that agreement should precede new appointments would certainly help concentrate the Prime Minister’s mind.

Meg Russell is Reader in British and Comparative Politics and Deputy Director of the Constitution Unit. Her latest book, The Contemporary House of Lords: Westminster Bicameralism Revived, was published in July.

What will become of the May 2015 UK Parliament if Scotland votes “Yes” on independence?

23rd March 2013

Every so often – but not very often – a major theme enters the national debate which nobody noticed much at first, but when attention is drawn to it, it becomes completely obvious.  This topic is one such we are pleased to  reprint, on how a referendum vote in favour of Scottish independence in September 2014 could greatly complicate the options for transitional UK government up to the general election in May 2015 and even more, the composition and form of the UK government thereafter.  The constitutional and political implications could be as fundamental for the reduced UK as for the departing Scotland.  The scenario is laid out in the Ballots and Bullets blog of the School of Politics and International Relations in Nottingham University. The authors are  Prof Ron Johnson of Bristol University, a leading authority on constituency boundaries and consultant on the proposed boundary changes in 2010;  the electoral geographer Prof Charles Pattie and David Rossiter, both of Sheffield University.
Ron was an expert commentator on the Conservative’s plan – aborted by the Lib Dems – to reduce the number of parliamentary seats by 50 and redraw boundaries to create constituencies of roughly equal size. The same team also warned that this policy would undermine” the underpinning of British representative democracy - that members of Parliament represent places with clear identities.”
The timetable for a Scottish Independence referendum in October 2014 and, if that is successful, implementation of the decision in March 2016 overlaps that of the fixed cycle for elections to the UK Parliament, for which the next general election will be held in May 2015. Governing the UK during that inter-regnum (when there will still be 59 Scottish MPs) will be difficult, as may forming a government after the May election, plus sustaining it after those 59 MPs depart in March 2016. And then there is the House of Lords…

Although opinion polls currently indicate declining support for Scottish independence, 18 months is a very long time in politics. Groups of civil servants are undoubtedly now working in both London and Edinburgh on the myriad issues that would have to be resolved should there be a positive vote in October 2014. Does their agenda include the following scenario?

  • Scotland votes clearly for independence, to occur – according to the SNP’s current timetable – in March 2016;
  • In May 2015 there is a UK general election (when Scotland is still a member of the UK). Labour wins 330 seats in the 650-member House of Commons, a majority of 10 over all other parties. Its complement of 330 includes 40 of Scotland’s 59 MPs. Labour forms a government; and then
  • In March 2016, the break-up of the United Kingdom occurs. The House of Commons is now reduced to 591 MPs, with Labour having 290; it no longer has a majority.

What would happen then?

Labour may go on governing – it would be only just short of a majority and, given that Sinn Féin MPs do not take their seats (and also that there are five of them then, as now), it could well get its business through. Alternatively it may reach an accommodation with one or more other parties – maybe even a LabLib pact (a full coalition is less likely).

If at some stage Labour loses a vote of confidence, however, then the procedures set out in the Fixed Terms Parliament Act, 2011, come into play: there may be a premature general election. And if that happens before late 2018, such an election would be held in the current 591 English, Welsh and Northern Irish constituencies – created using electoral data for 2000; following the Lords’ amendment to the Electoral Registration and Administration Act, 2013, the Boundary Commissions do not have to deliver recommendations for 548 new constituencies in those countries until October 2018.

Having voted for independence, however, the Scottish electorate may decide to send many more SNP MPs to Westminster in May 2015 – why vote for the parties of the now-rejected Union? Indeed, why vote at all?  It is doubtful that Labour could win a majority in England and Wales alone so David Cameron’s hopes of a Conservative majority over Labour and the LibDems in 2015 would be enhanced if very few Scottish MPs were elected to represent those two parties.

In addition, 11 of the Liberal Democrats’ current 57 MPs represent Scottish constituencies, so much will depend on how the soon-to-be-independent Scots vote in the 53 seats that currently return a non-SNP MP and how the MPs who replace them vote in the Commons during that inter-regnum (would they join with Labour and the Liberal Democrats in voting against the Queen’s Speech, for example, or just abstain?)

That might be a bit – perhaps very – messy, at a time when continuity and stability will still be preached as necessary conditions for economic recovery. As interesting – and potentially very controversial – will be what happens between October 2014 and March 2016, and especially between May 2015 and the latter date, whichever party (or parties) are in power. The government is already concerned about, and seeking a resolution to, the West Lothian problem: it will be magnified many-fold during that inter-regnum.

Once Scotland has voted for independence, what role should Scottish MPs play at Westminster during the following 18 months? Some might argue they should no longer participate – certainly not in its votes, though, of course, they should continue to represent their constituents’ interests that are covered by the transitional UK government (just as Sinn Féin MPs do now). But Scotland will still be a member of the UK and decisions will be taken during those 18 months on which they should have a say: what if the UK government recommends that the country goes to war somewhere in December 2014?

Would Scottish MPs agree to vote on a restricted range of issues only? Could agreement be reached on what those issues are? If not, would the government legislate to limit Scottish MPs’ roles in the House of Commons – perhaps with opposition support (the Conservatives, Labour and the Liberal Democrats are all opposed to the break-up of the Union)?

And what of the House of Lords. What would happen to the Scottish hereditary peers? The 1800 Act of Union allowed the Irish peers to elect 28 members to the Lords. None were elected post-independence, but also none were required to relinquish their seats, with some remaining members of a ‘foreign’ Parliament until their death, which for one Irish peer was as late as 1961. A similar situation occurred after the Act of Union with Scotland in 1707, when the Scottish peers were entitled to elect 16 of their number to sit in the Lords. From then on all new peers were appointed to the Peerage of Great Britain (as were a few peers created after 1922 who took Irish titles). All Scottish peers were entitled to sit in the Lords under the Peerage Act, 1963, and became part of the electorate after most of the hereditaries lost their seats under the House of Lords Act, 1999. There is thus no Scottish hereditary peerage, merely a UK Peerage, and it would presumably be up to those who, post-independence, considered themselves Scottish rather than UK citizens to withdraw from the hereditary electorate.

Of course, all peers are now appointed for life, and many of those currently occupying the House of Lords benches have some Scottish links. But could a separate ‘Scottish Life Peerage’ be defined to identify them? On what criteria – residence (first, or second)? Some may self-identify and withdraw but others, like their Irish predecessors, may decide to stay. How could they be removed? Could a generic Act be conceived, or would there have to be a series of ad hoc pieces of legislation? And when it was all settled – it might take some time – would the Prime Minister then replace them with a new tranche to maintain the currently-desired party balance?

Uncertainties abound, but governing the UK may be very difficult during the transition period, even if there is good will on all sides.

Ron Johnston is Professor of Geography in the School of Geographical Sciences at the University of Bristol, Charles Pattie is Professor of Geography in the Department of Geography at the University of Sheffield, and David Rossiter.

The chamber has become too big, and the patronage enjoyed by the Prime Minister is indefensible

Meg Russell’s letter in The Times

Sir, Lord Steel of Aikwood (“Clegg will look petulant if he walks away”, Aug 8) has suggested that the Constitution Unit might assist in finding the long-term way forward on Lords reform. We would of course be happy to do so. But he is also right that Clegg and Cameron should now be pressed to put through lesser but essential reforms, having abandoned their more ambitious Bill. The chamber has become too big, and the patronage enjoyed by the Prime Minister is indefensible. He still decides how many peers are appointed, when, and from which party. Also indefensible is the absurd system of “by-elections” to replace the remaining hereditary peers when they die.

As David Steel has emphasised, all agree that reforms to end these anomalies are necessary and would strengthen Parliament. The only disagreement is over whether they are sufficient. Nick Clegg told the Commons on May 17 last year that “the key thing is not to make the best the enemy of the good. That approach has stymied Lords reform for far too long”. He was right, and he should remain true to that principle now.