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

The finer points of MMP exposed in Scotland

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The resignation of two MSPs from the governing SNP in the Scottish Parliament earlier this week over NATO membership is causing more than just a headache for party leader Alex Salmond. It is also exposing a troublesome facet of the mixed member proportional system (MMP)[1] that is used to elect Members of the Scottish Parliament.

A quick briefing on just what MMP is. MMP systems elect two types of member: constituency members, who receive a direct mandate by gaining sufficient votes from within a constituency, and list members, who come into parliament via their position on a regional party list. This list exists to compensate for those votes that were cast for a party where they didn’t win constituency seats. The two MSPs in question, John Finnie and Jean Urquhart, were regional list MSPs (see the ACE Electoral Knowledge Network page on MMP for more).

The existence of list members serves to achieve greater proportionality between votes cast and party representation in parliament. But the implication here is that without allegiance to their party, these members have no mandate to continue to sit in Parliament at all. Senior SNP member Christine Grahame yesterday said the very same, and called on Finnie and Urquhart to resign from Parliament: “the principle here”, she stated, “is you’re here simply to represent a number of SNP votes. You’re no longer in the SNP, you should resign”.

The counter-case looks weak. The SNP code of conduct, for one, is clear on the matter. It states that “any member resigning from a party group at any level of government owes a duty to the party also to resign as a member of the local authority or parliament to which he/she was elected as a party candidate”.

How has this quandary been dealt with in other countries which use MMP?

While floor crossing (the practice of members switching party mid-Parliament) is generally not permitted in purely proportional systems (list PR), it tends to be permitted in MMP systems for the constituency MPs but not the list MPs.

In Germany, while the practice is permitted in law, it has only happened on two occasions in the last fifty years, largely because of the significant negative public perception of party change as an affront to the voter’s preference.[2]

The floor crossing phenomenon became rife in New Zealand following the switch from first-past-the-post to MMP in 1993. It prompted adoption of legislation in 2001 requiring party lists MPs to resign from parliament if they had resigned from the party under which they were elected.

But the problem has been raised even in the UK’s first past the post system. Last November Conservative Westminster MP Chris Skidmore presented a 10-minute order in the Commons which sought to oblige any member who voluntarily decides to change party to resign and fight a by-election. It raised the age-old Burkean questions about what exactly it is that MPs represent: are they delegates acting on behalf of the electorate or rather trustees of the electorate acting according to their best judgment? Party loyalty and discipline only further muddy the waters. However, that debate is less pertinent in the case of the list MP. With no constituency, their legitimacy clearly derives from their party and they cannot lay claim to an individual mandate.

As the Scottish Parliament stands out as a beacon for alternatives to first past the post in the UK, it is worth taking seriously the need to resolve its finer intricacies lest the floor-crossers become an endemic problem.

 


[1] Also referred to as the Additional Member System in the UK

[2] Electoral Institute for Sustainable Democracy in Africa, ‘Electoral System and Accountability: Options for Electoral Reform in South Africa’ , p.15

Video: The Euro Crisis and its Implications for European Institutions (Charles Grant)

Charles Grant (Centre for European Reform)

Date and Time: Wednesday 13 June, 6.00pm
Venue: Council Room, The Constitution Unit

The euro crisis has led not only to new EU treaties, but also to profound power shifts among various member-states and the EU institutions. The European Commission has never been so weak, while Germany has never been so strong.

Co-founder and director of the Centre for European Reform Charles Grant will discuss the implications of the ongoing crisis for the way European institutions operate. He is a former Brussels correspondent for the Economist and the author of many publications on the EU, as well as a former director of the British Council.

Video: Elected Mayors

Date and Time: Tuesday 22 May, 6pm
Venue: Council Room, The Constitution Unit

Jules Pipe

The London borough of Hackney has had an elected Mayor since 2002, when Jules Pipe was elected into office.  Mr Pipe argued that Hackney faced series issues at the time; crime rates were high, the council’s finances were in a poor state, and educational attainment was low.

Mr Pipe recognised that before changes could be made in the borough, changes would have to be made to the council itself.  His first priorities were to reintroduce good governance and financial competence.  In practice this meant improving the lines of communication within the council, developing a shared vision, and pursuing the best value for money for the borough.

The new Mayor set high standards for his team, bringing in experienced people and fostering a performance management culture.  Their aim was to improve the services that would benefit the whole community, focussing on projects such as building new schools, resurfacing roads and improving public amenities.

In his view, it remains vitally important to work with other bodies, such as the Police and the London Mayor, to achieve the best results for Hackney.  Mr Pipe’s long-term goal is to improve the reputation of Hackney, so as to encourage commercial investment.

Lord Adonis

Lord Adonis explained how he first became involved in the campaign for elected Mayors after being invited to speak at the Lunar Society in Birmingham last year.  In his view, the city lacked a coherent vision for the future; what it needed was a Mayor to fight for Birmingham’s interests.

According to Lord Adonis, a recent study has shown that only 16% of people think they know who the leader of their local council is – and half of those get it wrong.  In his view, having directly elected Mayors would raise the profile of local politics, and improve local council accountability.

Despite the largely negative response to elected Mayors in the recent referendums, Lord Adonis believes that all major cities could have elected Mayors within 15 to 20 years.  He argues that the introduction of elected Police Commissioners in November will help the case for elected Mayors, as they will have some of the powers of elected Mayors.

Note prepared by Jeremy Swan, intern on the Unit’s Special Advisers project.

Video: Scrutinising Administrative Justice

Richard Thomas

Date and Time: Thursday 26 April, 1.00pm
Venue: Council Room, The Constitution Unit

Chair of the Administrative Justice & Tribunals Council (AJTC) Richard Thomas CBE spoke in detail about the functions of administrative justice and the implications of its (possible) demise.

1. Administrative Law & Wider Justice

Mr Thomas defined administrative justice as how well the State makes decisions about people – affecting their benefits, taxes, immigration status, education, housing and (in the case of mental health patients) their liberty.

Over one million appeals and complaints against the decisions of public bodies are made each year to various Ombudsmen, tribunals and other institutions. These appeals have a success rate of approximately 35-50%, suggesting widespread failure to make correct decisions in the first instance. An aim of the AJTC is to encourage tribunals etc. to ‘get it right first time’.

The AJTC was established by the Tribunals & Courts Act 2007 (s44) and is an advisory non-departmental government body with statutory responsibility observe tribunals etc. in action and to scrutinise (from the user’s viewpoint) administrative justice on behalf of the Lord Chancellor. However, it is due to be abolished later this year, despite the recent conclusion of the Public Administration Select Committee that its role of providing independent overview is one of “vital national importance”.

2. Why is independent scrutiny and challenge important?

Mr Thomas argued that administrative justice needs external overview as individuals often use the system to challenge monopolistic state power. Therefore, it is fundamentally important to have an independent view of how users could seek redress.

Furthermore, in many areas that the administrative justice system serves, there is no market pressure to improve upon dispute resolution/complaints services. This means that scrutiny bodies like the AJTC are the only way to ensure best practice.

3. Why – unlike most other countries – is administrative justice the Cinderella of the justice system?

Agreeing that administrative justice is not held in particularly high regard by politicians and the executive, Mr Thomas offered several explanations. First, legal aid has always been limited for many tribunals and this will only get worse with the on-going legal aid cuts. Secondly, many tribunals are ‘do it yourself’ forums where parties often represent themselves and this can lower the prestige of the system. Thirdly, many administrative law cases involve issues that cut across several government departments and subject areas – and thus ‘fall into the cracks’.

4. What are the implications of cuts to legal and advice services?

It will be very difficult to pre-judge the effects of the legal aid cuts and it would be best to ‘wait & see’, Mr Thomas argued. He suggested that the administrative justice system could operate less efficiently as many individuals would be appearing before tribunals without any advice whatsoever.

5. Could the Ministry of Justice perform the functions of the AJTC?

The Ministry of Justice (MoJ) believes that it can take over scrutiny of the administrative justice system. Whilst not doubting that the MoJ has the competence to perform such a role, Mr Thomas identified the obvious problem: the MoJ is very much a part of the executive and so cannot be an independent arbiter.

Note prepared by Nick Perkins, intern on the Unit’s Judicial Independence project.

See also:

Parliamentary Boundaries Review

Parliamentary Boundaries Review from Department of Political Science on Vimeo.

Prof Ron Johnston (University of Bristol), Prof Charles Pattie (University of Sheffield) and David Rossiter

Date: Wednesday 11 January, 1.00pm
Venue: Council Room, The Constitution Unit

The UK Boundary Commissions produced their draft proposals in the early autumn. The first consultation period which followed comes to an end in December 2011, and  the shape of the final changes is likely to become clearer in the new year, when the commissions will publish their revised proposals.

Ron Johnston is a professor in the School of Geographical Sciences at the University of Bristol. Charles Pattie is a professor at the University of Sheffield specializing in electoral geography. David Rossiter has worked in a research capacity at the Universities of Sheffield, Oxford, Bristol, Leeds and Essex and has been involved in the redistricting process both as academic observer and as advisor to the Liberal Democrats at the time of the Fourth Periodic Review.

Together they co-authored ‘The Boundary Commissions’ (1999) and ‘From Votes to Seats’ (2001). The team now have a grant from the British Academy to audit the public consultation stage of the current redistribution, and will be discussing their findings following the end of the first consultation phase.