Does Commons “financial privilege” on Lords amendments need reform?

During its initial passage through the House of Lords in 2011-12, the government suffered seven defeats on amendments to the Welfare Reform Bill. The defeats concerned highly contentious policies, including changes to housing support (the “bedroom tax”), the introduction of a benefit cap, disability benefits, and the reform of the child maintenance system. When the bill returned to the Commons, MPs overturned all seven defeats and asserted their “financial privilege” (or primacy over tax and spending matters). It was argued that, by convention, the Lords could not then insist on its changes. The episode revealed significant confusion about the process, and led to claims that the government had abused parliamentary procedure to avoid unwelcome scrutiny of its policies.

Even to seasoned observers of parliament, financial privilege may be something of a mystery. To shed light on it, Meg Russell and I conducted a research project into the operation of financial privilege between 1974 and 2013, funded by the Nuffield Foundation. The aim of our research was twofold: to clarify how financial privilege works in practice; and to consider whether arrangements in Westminster should be reformed. Yesterday we published our conclusions in Demystifying Financial Privilege, and launched these at an event in parliament, with responses from well-respected Crossbencher and senior barrister Lord Pannick, and former first parliamentary counsel Sir Stephen Laws.

One major complaint voiced is that the government controls financial privilege for its own political purposes. In reality, ministers have far less involvement than is sometimes assumed. When Lords amendments are received by the Commons, an impartial clerk first identifies whether any have tax or spending implications (or “engage” financial privilege). Government officials will often argue their case – which, as we identify in the report, is a potential problem – but it is ultimately for the clerk to make a decision based on precedent. The next step is for MPs to decide what to do with each amendment. They have three broad choices: if they agree it, financial privilege is automatically “waived”; if they make an alternative proposal (eg an amendment in lieu), financial privilege does not arise; and if they reject the amendment outright, financial privilege is “invoked”. Although the government usually determines the Commons’ choice (by virtue of its majority), it does not determine whether privilege was engaged on the amendment in the first place.

A second complaint, particularly made since 2010, is that financial privilege is being used in a way that it wasn’t in the past. Financial privilege is certainly not a new innovation: it is one element of the Commons’ “financial primacy” over the Lords, a principle that dates back centuries and was formalised in the late 17th century. The Commons claimed financial privilege on Lords amendments throughout the period we studied (160 amendments, 1974-2013), with the highest absolute number (36) in the 1974-79 parliament. However, in 2010-13 the Commons asserted financial privilege in response to a particularly high proportion of Lords defeats: 24%, compared to just 6% in 2005-10. But this change did not result from privilege being interpreted more broadly than before (although we do identify the possibility of “creep” over a longer period); instead, the key political battlegrounds are now over spending matters, which means that a higher proportion of Lords defeats engage financial privilege.

An important complaint is that the financial privilege process lacks transparency. At present there are no clear definitions as to what falls within Commons financial privilege. And once privilege has been invoked on an amendment, the Commons gives no explanation as to why. Such lack of transparency makes it difficult for peers to anticipate whether financial privilege will be applied to their amendments, and has fed perceptions outside parliament that the process is being abused. There is also some lack of transparency about how the Lords may respond when faced by a claim of Commons financial privilege. Notably, some overseas legislatures manage arrangements better in this respect: in Australia, statements are published explaining how and why an amendment is judged to be financial, while in Canada statements have specified the costs involved.

It seems clear to us that existing arrangements surrounding financial privilege are unsatisfactory, and that more could be done in particular to improve transparency. Both Houses (especially the Commons) should consider how clearer information could be provided about financial privilege, for example by expanding the text on the parliament website. We believe it is reasonable for peers to be given an explanation of why their amendments engage privilege, including an indication of the amount of money involved. Most importantly, the Commons should publish a clear definition of what types of amendment it considers to be covered by privilege. The Lords should also make clearer in its own guide to procedure its interpretation of how the Lords may respond to the Commons’ claim of financial privilege.

Commenting on the report at the launch event, Lord Pannick (who has experienced his own amendments being rejected on financial privilege grounds, without clear reasons) said “the Constitution Unit, Meg Russell and Daniel Gover have done a very great service in identifying the principles of financial privilege” and said that the report was “particularly persuasive” with respect to transparency. He concluded saying “I hope the report will encourage the Commons’ authorities to look again at their procedures. At the moment, the procedures are indefensible”.

Ultimately, however, our report notes that arrangements around financial privilege rest entirely on convention, and (contrary to some claims) there are currently no absolute restrictions on how the Lords may respond. All parties – and especially the government, when determining how the Commons responds to Lords amendments – should thus exercise caution, to ensure that tensions are not inflamed too far.

Fewer Special Advisers run for Parliament than is generally thought, but those that do are quick to climb the ladder

Special Advisers becoming Members of Parliament is a phenomenon seen as symptomatic of a wider ‘professionalisation’ of British politics. Looking at the career progress of those Special Advisers who served between 1979 and 2010, Max Goplerud shows that they do not all seek a berth in Parliament, though those that do tend to experience rapid career progression. 

The notion that Special Advisers (“spads”) turned-MPs dominate the Government and Opposition frontbenches appears periodically in the media as exemplifying the rise of ‘career politicians’ and the ‘professionalisation of politics’. A forthcoming book on Special Advisers by Ben Yong and Robert Hazell of the Constitution Unit explores the profession from 1979 to the present government and provides a detailed look into who they are, what they do, and their relationships and interactions with other actors in the political system.

My recent article for Parliamentary Affairs explores the ‘myth’ outlined above: Is it actually the case that Special Advisers invariably go into politics and rise to the top? The answer, in short, is no. Those Special Advisers who do run for Parliament are not particularly representative of the wider profession.

Despite the presence of some high profile MPs who were previously Special Advisers (most prominently David Cameron and Ed Miliband), the reality is less straightforward. While it is clear that the Special Advisers who do run for Parliament are generally successful (both in terms of their electoral success and subsequently in being promoted), they are not representative of the wider “spad” group. A more satisfactory explanation is that underlying factors drive a certain type of ambitious, politically minded individual to both become a Special Adviser and stand for Parliament. Those individuals are then in a strong position to draw upon the skills and connections they amassed during their time in Whitehall to further advance their political careers.

Special Advisers as Candidates

In total, around 25% of Conservative (1979-1997) and 10% of Labour (1997-2010) Special Advisers ran for Parliament at some point, with most of them doing so after leaving Whitehall. Whilst high compared to the proportion of other groups in the population, it is not so high in absolute terms. These individuals are somewhat younger than the ‘normal’ Special Adviser, with around 40%  of those standing for Parliament aged under 30 on their on their appointment as a special adviser. Conversely, only 25% of ‘ordinary’ Special Advisers are that young.

Figure 1: Number of special adviser candidates by general election

Coloured-SpAd-map

 

This difference might be uninteresting if these ex-Special Advisers took a number of tries to get into Parliament or contested unwinnable seats. However, that is resoundingly not the case; 80% of “spads” (46 individuals) who stood after leaving Whitehall became MPs at some point. For Labour, 18 out of the 21 former Special Advisers who stood for Parliament have won every General Election they contested.

Special Advisers as MPs

Of those Special Advisers-turned-MPs, nearly half have achieved high office as a Secretary of State (or Shadow Secretary of State) at some point in their parliamentary career, with a full 80% achieving the rank of at least Minister of State. This is very different compared to the great mass of MPs who generally remain on the backbenches.

Special Advisers who become MPs tend to skip the established ‘career ladder’ and head straight to the frontbenches; many become Ministers of State without having first served as a Parliamentary Private Secretary (PPS) or other comparable junior role. They also tend to be very young upon entering government. The data suggest that 17 ex-Special Advisers became (Shadow) Minister of State before their 40th birthday. Compare this to the median parliamentary candidate who is still attempting to be elected to Parliament at that age. This is also not only a Labour phenomenon—rapid promotion of Special Advisers also occurred under Conservative governments. For at least the last thirty years, Special Advisers-turned-MPs have experienced ‘super-charged’ careers in Parliament, outstripping even other types of ‘career politicians’.

On balance, there is clearly some credibility to the dominant narrative about Special Advisers becoming ministers insofar as those who have ministerial office as their goal seem to be quite successful at achieving it. The evidence suggests that having been a Special Adviser is a good signal that an individual is;

  • loyal to the party, and
  • has valuable prior experience with how government works.

Key actors, particularly selection bodies for parliamentary candidates and the party leadership (who may well be their former boss!) may see this as desirable and therefore push for these ex-Special Advisers to be placed in safe seats and promoted rapidly.

Yet, we should be careful to distinguish between those Special Advisers who do run for Parliament from those who do not. It is possible to be critical of the advancement of the first group whilst making a different evaluation about the desirability of the profession of “spads” more broadly. If one thinks this rapid promotion is normatively undesirable, it is a problem for the political parties to solve rather than an issue with Special Advisers writ large.

Note: this post represents the views of the author. It is based upon an article for Parliamentary Affairs which can be found here. It was originally posted on Democratic Audit: http://buff.ly/1frMuPI

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.

Lords Defeat Poses Challenge to Cameron on Peerage Appointments

1st March 2013

BY MEG RUSSELL

Yesterday (28 February) the coalition suffered a massive defeat in the House of Lords over the question of David Cameron’s right to appoint new peers. This reflected widespread concern among existing members that new appointments could lead to increasingly bloated numbers, and also weaken the chamber’s ability to hold the government to account. The ill-tempered debate took place amid rumours that new government appointees are on the way.

The defeat was on a motion proposed by senior Liberal Democrat (and former party leader) David Steel, as amended by Labour frontbencher Philip Hunt. Steel’s original motion called for a complete halt to the introduction of any new peers until arrangements had been made to allow members to permanently retire. This was a novel proposal, because the Prime Minister (and nominally the monarch) controls appointments, but the Lords controls its own procedures, and could in theory refuse new members an introduction ceremony. But this was considered too incendiary by many peers, encroaching on the powers of the monarchy; so Hunt’s amendment merely called for “restraint” in creation of new peers, and for immediate introduction of retirement procedures, and barring peers who do not attend or are convicted of criminal offences. This more cautious approach did the trick, and attracted overwhelming support from peers.

Despite the government whipping against the proposal, only 45 peers opposed it (31 Conservative, 11 Liberal Democrat, 2 Crossbench and 1 other) while 217 supported Steel and Hunt (35 Conservative, 16 Liberal Democrat, 94 Labour, 57 Crossbench and 15 others). For full details of those voting see here. This defeat – by 172 votes – was the coalition’s largest to date, and certainly the first in which the number of rebels in both coalition parties exceeded the number of loyal voters. In fact, it was the third largest defeat in the Lords since its reform in 1999, being exceeded only by resistance to Labour’s Prevention of Terrorism Bill introducing control orders (in 2005) and Counter-Terrorism Bill over holding terror suspects for 42 days without charge (in 2008).

The vote therefore demonstrates real alarm and anger inside the Lords about the threat of ‘swamping’ by new government peers, and significant tensions inside the coalition. The coalition agreement suggested that appointments would be used to bring the Lords into line with general election vote shares, but as a Constitution Unit report in 2011 pointed out that this would require appointment of 269 new peers (or 349 if Crossbenchers were to maintain their current share of seats), bringing its size to 1062 (or 1142). This research was cited in the debate by Lord Hunt. Notably UKIP (see column 1651) have begun to demand the 24 peers that they would be due under strict proportionality, and other parties such as the BNP could do the same. Since the furore caused by our report, appointments have been very limited. But the government has not officially renounced its earlier rather foolish pledge.

Of course, the wider context is the bitter issue of Lords reform within the coalition. Resistance from Conservative MPs meant Nick Clegg’s reform bill to introduce elections to the chamber had to be dropped. Lord Steel opposes elections, and has several times promoted a bill to facilitate small ‘tidying up’ changes, including retirement for peers. This is due for debate in the Commons today, sponsored by Conservative MP Eleanor Laing, but is likely to be blocked by the whips. Nick Clegg had previously argued that it was important to “not make the best the enemy of the good” when it came to Lords reform, but having been angered by the blocking of his bill he has clearly changed his mind. Lord Steel read from a recent parliamentary written answer, which stated that “In the absence of full reform, it is the Government’s view that there is no easy set of smaller reforms to the House of Lords… So reform measures must include introducing elected Members to the House of Lords”.

Yet as former Lord Speaker Baroness Hayman said in yesterday’s debate, “it is not responsible to continue to do nothing”. Statistics were traded, and Leader of the House Lord Hill suggested that the number of peers eligible to attend is barely larger than it was in 2007 (761 to 738). But this carefully excluded 50 members on temporary leave of absence and the like, who can potentially return. The total eligible membership, at 811, is significantly higher than at any time since 1999. Additionally, as some members pointed out, the rise in active members is far higher. Immediately post-reform in 1999 the average daily attendance was 352; in 2010-12 it was 475.

But this issue is also now highly politicised. Labour fears that the coalition – which is already numerically stronger than it ever was when in government 1997-2010 – will use new peerage creations to smother Lords’ resistance, and end defeats (this being its 62nd since taking office). The coalition claims that numerous Labour peers were appointed by Blair and Brown – which is true, and added to the chamber’s size, but never gave government anything close to a political majority.

The fundamental problem is that there is no agreement about how seats should be shared between the parties, and no constraints – aside from political embarrassment – on prime ministerial patronage power. What is urgently needed is some formula, agreed between the parties, under which any future appointments will be made. Linking this in some way to general election vote shares is reasonable, but not in the way that the coalition agreement laid down. Earlier proposals, such as those from the Wakeham Royal Commission, suggested that each new set of appointments should be in line with votes – which is a far more sustainable formula. For example, if 10 new peers were appointed in line with the 2010 result these would be shared 4 Conservative, 3 Labour, 2 Lib Dem, 1 other. Such proportions would vary only slightly over time (the 1997 equivalent would be 4 Labour, 3 Conservative, 2 Lib Dem, 1 other). But the trouble is that the baseline membership of the chamber matters too, and the coalition considers itself underrepresented (insofar as that claim is justified, it essentially just applies to the Lib Dems). If we are to engage in grown-up politics, the three parties should sit down and urgently and agree a future appointment formula, alongside some trimming of the existing membership so that the starting point is fair. But this would require maturity, and also the kind of retirement provision sought by Lord Steel. There would also need to be a strict cap agreed on the overall size of the chamber.

The Commons Political and Constitutional Reform Committee has recently announced an inquiry into what immediate reforms are needed to the Lords following the failure of Clegg’s bill. If it can agree a cross-party report on such matters, this could be a first step to ending the present bitterness in the Lords, and ensuring that public confidence in parliament doesn’t dip further by the chamber being made to look absurd.

Meg Russell is Deputy Director of the Constitution Unit, and leads its research on parliament.
Her new book ‘The Contemporary House of Lords: Westminster Bicameralism Revived’ will be published by OUP this summer. See here: http://ukcatalogue.oup.com/product/9780199671564.do
For the Unit’s research on the Lords see: http://www.ucl.ac.uk/constitution-unit/research/parliament/house-of-lords

WOMEN BISHOPS: SHOULD PARLIAMENT INTERVENE?

On 21 November 2012 the Church of England Synod rejected a draft Measure for the introduction of women bishops by a narrow majority of six votes in one of the Synod’s three ‘houses’, that of the laity.  Sufficient two thirds majorities were attained in each of the other two houses – bishops and clergy. Forty-two of the forty-four Anglican dioceses had previously supported the change.

The amended draft contained a compromise arrangement, linked with a putative ‘code of practice’, that would have permitted congregations opposed to women bishops on theological grounds to retain male only episcopal oversight. The opponents – from both the ‘catholic’ and evangelical groups – felt that the compromise did not go far enough to recognise their views. Ordinarily, Synod’s standing orders would prevent a failed draft Measure’s reconsideration until the next newly elected Synod – in this case in 2015. There is, however, an exceptional procedure which could bring the issue back for redetermination.

The latest available – 2011 – statistics show that ordained men amount to seventy per cent of the total of nearly 11,000 diocesan licensed clergy. But, although women constitute only one fifth of full-time clergy, they amount to just over half of both part-time stipendiary and self-supporting clergy.  Out of 111 archdeacons, 17 (15%) and of 36 cathedral deans 4 (11%) are women. All 44 diocesan and all 61 suffragan bishops are, of course, men.

The issues 

(a) For the Church

Having in the past been, if anything, in the vanguard on divorce and homosexual law reform in England, the Church continues to find difficulty in agreeing on issues of gender and human sexuality. These difficulties are not confined to disputes in England: they exist in the wider Anglican community too and now appear to be so irreconcilable as to threaten schism. Addressing these differences will be one of the primary tasks of the new Archbishop of Canterbury, Justin Welby, as they were for his predecessor, Rowan Williams.

The decision to ordain women priests in 1992 carried the implication that at some point episcopal orders would also be made available to them. Granted the strong reservations held by a minority in the Church, agreement to proceed could be reached only as the result of compromise – as had been the case in 1992 when, essentially, female ordination was secured on a basis of conferring a clerical status inferior to that of men. At that time, Parliament – through the Ecclesiastical Committee – was concerned that the minority should be reconciled. The question for the Church now could be whether any compromise satisfactory to the opponents of women bishops could be regarded as compatible with having women bishops at all.

(b) For Parliament

Parliament retains the ability to legislate for the Church. Since 1919, on the other hand, it has in practice ceded the legislative initiative to the Church itself. Above all, even if Parliament did decide to legislate directly, it is difficult to believe that it would be prepared to do so without the consent of the Church. If that consent were forthcoming, then there would, of course, be no reason why the Church should not take the initiative itself. Only if Parliament decided to proceed without the Church’s consent would there be a case for its intervening. But if it did so, it would intervene in the interests presumably of the majority party and negative any possibility of holding all the parties together. Contemplating such a sequence is to remind why Parliament conceded the right of legislative initiative to the Church in the first place.

The Public Worship Regulation Act 1874 was the last time Parliament legislated  for the Church when the latter was divided on an issue. The outcome was not a happy one. Five priests underwent terms of custody, and the bishops in the end vetoed all attempted proceedings rendering the Act a dead letter.

Evidence of the House of Commons’ present mood can be found here –

http://www.bbc.co.uk/iplayer/episode/b01p2px8/The_Week_in_Parliament_23_11_2012/

In the BBC studio discussion, Ben Bradshaw, a member of the Ecclesiastical Committee, judged that the mood of Parliament is very different from that of 1992 when it could be argued that it was more concerned to protect the position of the objectors to female ordination than the status of female orders. Whilst that may well be so, it is also the case that Parliament has now in the Equality Act 2010 passed legislation which exempts priestly orders from the non-discrimination rules otherwise applicable. Requiring women bishops would amount to trenching on the religious freedom that the Act’s provisions were meant to protect.

Mr Field’s Equality Act 2010 (Amendment) Bill, which received its first reading on 22 November (and is due to receive its second on 18 January 2013), will presumably attempt to remove a protection permitted under the EU Directives the 2010 Act was designed to implement. If singling out the Church of England for the repeal alone, the Bill will itself be discriminatory: if the repeal is general, then it will be opposed by every other Christian denomination and all other religions as well. It seems unlikely that the bill will, or could ever have been likely to, obtain essential government support. In so far as that is the case, the bill looks more like a gesture of the moment than a credible and viable solution. This was similarly the object and fate of the Bishops (Consecration of Women) Bill, introduced by Andy Reed on 21 March 2006 (Hansard, Commons, cols 170-4) which made no further progress.

(c) For the Ecclesiastical Committee

Any draft Measure from the Synod will have to come through this Committee, and it will be a test of its judgement whether what it feels able to approve is acceptable to Parliament at large. The Committee is not a Parliamentary joint committee but in fact a statutory joint committee with equal Lords and Commons membership in a total of 30. It will no doubt weigh carefully whether it can in the event certify under the 1919 ‘Enabling’ Act ‘as to the [Measure’s] expediency thereof, especially in relation to the constitutional rights of all [Her] Majesty’s  subjects’. What it approves could be voted down in Parliament and that may temper any Committee enthusiasm to wave through a compromise in flagrant and indefensible default of gender equality. What may be an acceptable price of compromise in the Church may not be automatically acceptable outside so far as the rights of all Her Majesty’s subjects are concerned.

(d) For the government

There is unlikely to be any Ministerial enthusiasm for intervening. Parliamentary legislation would in practice have to be via a government sponsored bill. No government would want to start intervening in the affairs of a religious body. If it was seen to do so in this case, it would be invited to intervene in other controversies such as theological and property disputes not only in respect of the Church of England but also in the case of other religious denominations, Christian and non-Christian. Parliament last ventured into this territory very gingerly with the Church of Scotland Act 1921 which paved the way for the reconciliation of a major schism that had occurred in 1843. Ministers were careful in 1921 to ensure that the Act merely recognised a compromise reached by the parties rather than forcing one.

Is ‘disestablishment’ the answer?

In a situation where religious belief has greatly declined and, where it remains, is much pluralised, church establishment is a hangover from the confessional state – abandoned finally for most purposes in 1828-9 – where everyone in the UK outside Scotland had to be a member of the Church of England or suffer civic penalties. Church and state functioned together, inseparably. But the abandonment of the confessional state was not accompanied by severing that Church’s ties with the state. The disestablishments in Ireland in 1871 and in Wales in 1920 did not affect the position of what was left for England alone.

The key political and constitutional problem is that, although the Church of England now behaves largely as if it is a voluntary society, it remains nonetheless part of the state. The Queen as head of state is ‘Supreme Governor’ of the Church, must be in communion with it, holds the title ‘Fidei Defensor’, and – nominally – appoints its senior clergy. The Archbishop crowns and anoints the new sovereign, and the Church conducts important public ceremonies and rituals effectively in relation to the UK as a whole. The Church’s courts remain courts of the land, although they lost their public law jurisdictions in the 1850s. Twenty-six bishops continue to sit in the House of Lords – each nowadays since the Prime Minister withdrew his involvement in 2007 actually appointed by a private, unaccountable committee of the Church itself.

These are high matters and could be addressed again by Parliament. However, whatever the degree of change made, none could procure the appointment of female bishops unless Parliament legislated directly to that end. In other words, disestablishment could not by itself resolve the particular question of female bishops. On the other hand, what disestablishment could do would be – a very different matter – to permit the state and Parliament to wash its hands of Church of England affairs altogether.

Conclusion

Since nothing so far suggests that Parliament contemplates such a rupture, it follows that the Church must be allowed to deal with the present crisis itself. Whether in doing so it strengthens the case for a radical review of remaining  church/state ties is another question.

Written by Bob Morris, formerly Home Office Under Secretary responsible for Constitutional Affairs. Leader of the Unit’s work on Church and State and also expert on FoI.

UK prisoner voting: Grieve and Grayling’s dilemma

Dominic Grieve QC MP and Chris Grayling MP

”No one should be in any doubt, prisoners are not getting the vote under this government”. These were the words uttered by David Cameron at Prime Minister’s Questions nearly a fortnight ago. It was in response to a question by Labour backbencher, Derek Twigg MP, as fresh revelations emerged that the UK Government may be forced to partially repeal its ban on prisoner voting (PV). Only two hours earlier, the Attorney-General, Dominic Grieve QC MP, stated something quite different. Appearing before the Commons Justice Committee, the Government’s ‘top lawyer’ insisted he had “…absolutely no doubt it [ignoring a 2005 European Court of Human Rights (ECtHR) ruling on PV] would be seen by other countries as a move away from our strict adherence to human rights laws.” And that such an act would possibly see a UK exit from the Council of Europe for good.

This apparent tension in rhetoric is of great interest to us here at The Constitution Unit. Though our current Human Rights Act and Parliament research project is more domestic in scope, action by the UK Government to come into line with Strasbourg‘s previous rulings in the case of PV internationally would also be momentous domestically. It has been seven years since a ECtHR ruling (Hirst v United Kingdom (2005) 42 E.H.R.R. 41 (ECHR (Grand Chamber)) (and five years since a UK ruling (Smith v Scott (2007) Registration Appeal Court (Scotland); CSIH 9)) interpreted Section 3 Clause 1 of the UK’s Representation of the People Act 1983 as breaching am individual’s  right to participate in free elections (Art 3, Protocol no. 1 ECHR).  A fresh call by the ECtHR this May has added new urgency to Hirst. In Scoppola v Italy (No3 [2012](ECHR (Grand Chamber), the UK was given six months to bring forth legislation to implement a partial repeal of its ban – possibly adding offenders of ‘petty’ crimes or those on the road to rehabilitation to the franchise.

This burgeoning impetus and willingness by Grieve may peter out, however. One substantial hurdle is time. As Patrick Wintour noted, a draft Bill originating from the Ministry of Justice will most likely take two years to pass. This would bring the measure under close scrutiny by an already euro-sceptic electorate at the next election.  The second greatest hurdle is Parliament. When senior Tory backbencher, David Davis, and former Labour Lord Chancellor, Jack Straw, tabled a motion in February urging Ministers to defy Hirst, it was moved by a vote 234 to 22. One suspects the Coalition Government does not want another sizeable EU-related rebellion on its hands.

To conclude then, while Grieve has given fresh hope that this Government will grasp the PV-issue by both hands, the task of shifting an intransigent Prime Minister, Parliament and electorate away from its PV scepticism is huge.  As he and Lord Chancellor, Chris Grayling, have acknowledged, however, the legal implications of inaction could also potentially be disastrous. This chapter in the PV saga has therefore served to expose a key dilemma facing Grieve and Grayling: to remain politically defiant or push ahead with reform.  Which route will they take? The Attorney General and Lord Chancellor have until the 23rd of this month to decide.

WA

Meg Russell on Lords Reform

The government will unveil its House of Lords reform bill on Wednesday. This follows the publication in April of the Joint Committee’s report on the government’s draft bill. Since January there has also been some progress on David Steel’s private peer’s bill.

It was always going to be difficult for the Joint Committee to agree a report. The committee had 26 members, drawn equally from the two chambers, representing all the main parliamentary groups and a wide range of opinions. Many of the report’s conclusions were therefore supported by only a majority of its members, and a group of 12 members released an ‘alternative report’ disagreeing with many of the key conclusions.

The points on which the Joint Committee agreed and disagreed provide good indications of where the pressure points will be when the bill is debated. Even those points where they agreed do not make easy reading for ministers. In particular, the committee stated that it was ‘firmly of the opinion that a wholly or largely elected reformed House will seek to use its powers more assertively, to an extent which cannot be predicted with certainty’. It concluded that clause 2 of the bill, which asserts that the relationship between the two chambers will not change following reform, ‘is not capable in itself of preserving the primacy of the House of Commons’. Consequently, ‘the increased assertiveness of a reformed second chamber will affect the balance of power between the two chambers in favour of the House of Lords’. Additionally the committee concluded that ‘some elected members will seek to carve out a constituency role for themselves … and we do not see how this can be prevented’. All of these conclusions will alarm MPs. The committee also agreed that a reformed chamber should have 450 members, rather than the government’s proposed 300, which may be easier to accommodate.

But there were many sticking points and disagreements. Committee members were divided on the merits of an elected, partly elected or appointed chamber, though a majority (of 16:6) agreed that if there were elected members, 80 per cent was the right proportion. There were also disagreements on the proposal for 15 year terms, on terms being non-renewable, on allowances for members, on the presence of bishops, and on the need for a referendum on the reform (the latter being agreed by 13:8). Some of these issues were elaborated in the ‘alternative report’, whose signatories included Conservatives Lord Norton, Baroness Shephard and Eleanor Laing MP, Labour’s Baroness Symons, Lord Rooker and Tom Clarke MP, and Crossbencher Lord Hennessy. These members concluded that ‘the maintenance of the primacy of the House of Commons and the government’s proposals for the election of the House of Lords are fundamentally incompatible’, and that continued Commons’ primacy required an appointed second chamber.

There was much speculation about whether the Queen’s Speech would include mention of a bill. In the run-up to the speech, numerous Conservative MPs (ranging from youthful ‘moderniser’ Jesse Norman to former leadership challenger David Davis) spoke out forcefully against the reforms. But pressure remained high from Liberal Democrat leader Nick Clegg to press ahead. David Cameron and other senior Conservatives briefed around the speech that the reform was not a central priority, and should not take up disproportionate parliamentary time. But the bill inevitably will. It must have its committee stage on the floor of the Commons, and this alone would take weeks. Conservative rebels have indicated that they will vote with Labour against the programme motion, which could destroy the timetable, and Cameron could be forced to concede a referendum even to get this through.

Beyond this, however, the Joint Committee’s report offers a good guide to the likely flashpoints, several of which could lead to government defeat in the Commons. In particular, if Labour sought to amend the bill in favour of a wholly elected chamber (as their manifesto promised), many Conservatives might join them in order to wreck the proposals, while many Lib Dems (whose manifesto said this too) would support the change on principle. After a long and gruelling parliamentary passage, the bill could emerge from the Commons in a very different form to that in which it was introduced.

Another possible way forward is to negotiate a more minor reform. Some sceptics seized on the Queen’s Speech committing only to ‘reform the composition’ of the Lords, without mentioning ‘election’. Supporters of the ‘alternative report’ favour the measures in the bill proposed repeatedly by Lord Steel of Aikwood, which cleared the Lords by the end of the parliamentary session, but found no time in the Commons. But even the Steel bill needed heavy amendment in order to get through: originally it provided for a statutory appointments commission, and gradual removal of the remaining hereditary peers, but by the end only the provisions on expelling those with serious criminal convictions, and allowing others to retire, remained. Lord Steel’s bill was reintroduced this session on 17 May, Other options on the table include the list of proposals presented to the Joint Committee by former Lord Speaker Baroness Hayman. These include capping the size of the chamber, appointing new members on a proportional basis and for fixed terms, and ending the link between membership and the honours system. Even these changes, if pursued, would be a major achievement for Clegg.

Article from issue 51 of the Monitor: read the full newsletter