An unsustainable Act?

Lord Norton

Deputy Prime Minister Nick Clegg last week appeared before the Constitution Committee as part of its inquiry into the process of constitutional change.  You can watch the session here or read the transcript here.  He was asked about the Government’s proposals for the future of the House of Lords.  I pursued him on the implications for the Parliament Act and I am still trying to make sense of his answer. 

I pointed out that the Parliament Act 1911 was passed explicitly for the purpose of asserting the primacy of an elected House over an unelected House.  If the second chamber is elected, does that not then destroy the justification for the Parliament Act?  The Deputy PM accepted that what I said was correct as a matter of historical record – ‘of course, that is a matter of record and fact rather than opinion’ – but then went on to say ‘I am not sure that therefore means it follows that, if one changes the composition of the House of Lords, there is an automatic knock-on effect on the status of those Acts and coventions.’  When I pursued him as to the rationale for retaining the Parliament Act, he said ‘Because it is the basis upon which you have the division of labour of powers, which serves us well and which we are not seeking to disturb or overturn.’    The transcript continues:

“Lord Norton of Louth: But it is based on one House being an unelected House.

Nick Clegg:  Well, as I say, I think there is a slight distinction between the genesis of the Parliament Acts themselves in 1911 and 1949 and the manner in which they have now become the organising principles by which the distinction between the two Houses is widely and commonly understood.  I think that stands, and it stands regardless of the historical circumstances in which they were created in the first place.”

As far as I understand it, he believes that the Act passed to assert the primacy of an elected House over an unelected House can continue even when the second House is elected because, er, well….. ?  As an academic colleague observed, it is the sort of question one would have expected to be asked, yet one that appeared to take the Deputy PM by surprise.

26 comments for “An unsustainable Act?

  1. Denis Cooper
    26/05/2011 at 3:10 pm

    I think Clegg’s proposals would give us a better Second Chamber than we have now, and I’d be moderately content if they went through.

    However I think it’s a pity that those responsible for considering the possible solutions to this longstanding problem have stuck with rather conventional ideas rather than being prepared to think outside the box.

    The central problem with our Parliament is the inherent “winner takes all” nature of the FPTP system used to elect the members of the first and dominant chamber, which often leads to a lack of effective opposition in that chamber and allows a single party government to behave as an “elected dictatorship”.

    The blindingly obvious solution is to carry on having elections based on the (planned) 600 parliamentary constituencies, but supplement FPTP for members of the first chamber with SPTP for members of a second chamber with the same powers as the present Lords, taking the edge off the “winner takes all” nature of FPTP and ensuring that a single party government will never be able to command a majority in both chambers.

    Meaning that the government would have to start winning arguments rather than just winning whipped votes, or in cases where no compromise could be reached with the opposition it would have to accept a delay of about 13 months before it could by-pass the Second Chamber under the Parliament Acts.

    If a Second Chamber constituted in that way had been in place after the 1997 election, we would have been spared much of the defective legislation that the last Labour government pushed through during its 13 years, quite often simply to remedy problems created by its earlier defective legislation.

    Here are some of the other advantages of this FPTP-SPTP system:

    No additional elections – members of both chambers are elected simultaneously through constituency elections of the kind with which we’re all familiar, each elector still having just one vote to cast, and with the candidate who comes first taking the seat in the first chamber, the Commons, as now, while the candidate who comes second takes the seat in the reformed wholly elected Second Chamber.

    Taken across both chambers, something very much closer to proportionality between the number of parliamentary representatives affiliated to a party and the total number of votes received by that party’s candidates.

    No question about which chamber has primacy.

    No parliamentary representatives floating free from any geographical constituency and unaccountable to a constituency electorate.

    In each geographical constituency there would be two parliamentary representatives – the MP in the Commons, and an opposing member of the Second Chamber, the constituency SMP, who would be in constant public competition on policy matters but who could collaborate on and share the burden of constituency “social work”.

    Even in a “safe” seat there would be a new added interest in the election, because for the first time it would matter who came second.

    On average about three quarters of those who bothered to vote would be rewarded by seeing their preferred candidate take a seat in Parliament, in one chamber or the other.

    • Lord Norton
      Lord Norton
      26/05/2011 at 4:00 pm

      Denis Cooper: Sounds like a wonderful recipe for a lack of accountability for public policy.

      • Denis Cooper
        26/05/2011 at 4:01 pm

        How so?

        • MilesJSD
          27/05/2011 at 4:06 am

          Hear hear, how so ?

          And don’t forget the essential need for strongly further People-upwards and multi-way Democratisation i.e. by worded-submissions inclusion from the individual citizen, between the five-yearly deaf-and-dumb single and erasable pencilled fptp cross on a slip from a mass-murdered-lifesupport…

          0406 2705 JSDM

          • Lord Norton
            Lord Norton
            27/05/2011 at 10:45 am

            Denis Cooper: You need a government that is collectively accountable for public policy, otherwise there is no accountability. There is little point in increasing individual accountability at the expense of collective accountability, since no one member is responsible for the public policy assented to by the legislature.

      • danfilson
        27/05/2011 at 7:28 pm

        What Denis Cooper has proposed (27/05/2011 at 27:12pm – I didn’t know we had a 27+ hour clock but anything is possible in the Alice in Wonderland world of Parliament) would indeed ensure that no party could get an overall majority in both houses at the same time. If you want to replicate the indecision and paralysis of the French 3rd Republic that died a miserable suicide in 1940, that’s the way, for sure.

        • Denis Cooper
          01/06/2011 at 4:16 pm

          There’s no comparison at all with the French Third Republic. For a start with the Commons still elected by FPTP and still the dominant chamber we would still normally have a single party government, not an endless succession of coalitions.

        • Senex
          01/06/2011 at 8:33 pm

          DF: Parliament once tried to tax the measure of time itself. In July 1797 William Pitt the Younger brought in a tax on the ownership of clocks and watches except for the Royal family, ambassadors, the Houses of Parliament, hospitals and churches. The act was repealed in 1798 some nine months later when Dr Who intervened on behalf of the BBC.

          Ref: Act of Parliament Clocks

  2. danfilson
    26/05/2011 at 4:37 pm

    The case for the Parliament Act will remain valid. (1) The House of Commons will remain a wholly elected chamber, with tenure of no more than five years. It is the house with the democratic validity. (2) The House of Lords as revised will have some 20+% unelected members (appointed or bishops). For these reasons it must remain within the power of the House of Commons to get its way by the exercise of the 3-years procedure under the Parliament Act.

    • Lord Norton
      Lord Norton
      27/05/2011 at 10:47 am

      danfilson: There isn’t a three-year procedure under the Parliament Acts. The most the House of Lords can delay a Bill now, under the Parliament Act 1949, is just over a year. An elected second chamber (whether 80% or 100% elected) will be quite legitimately able to demand more powers than the existing unelected House.

      • danfilson
        28/05/2011 at 11:22 am

        I stand corrected – I had forgotten the 1949 Act. And yes, an elected second chamber (whether 80% but particularly a 100% elected chamber) may demand more powers than the existing unelected House, but that may be one reason for the coalition not proposing 100%, and in any event the upper house may demand but may not get what it seeks.

        Glendower: I can call spirits from the vasty deep.
        Why, so can I, or so can any man;
        But will they come when you do call for them?

  3. Gareth Howell
    26/05/2011 at 5:15 pm

    I think that the noble Lord Norton of DPM constitutional questions is being Cupiditous.

    It certainly adds an unnecessary argument to the debate.

    What bothers me is that if sufficient hereditary peers were to take up the democratic cudgels, we would merely end up with a mode of address as follows

    “My noble Lord Senator!”

    and very little other difference than public elections of 1/3 or 1/2 of the house every five years.

    The reduction in numbers to 300 would be the biggest saving. My own opinion is that the whole house should be cleaned out of peers in one fell swoop, and that all 300 seats should be taken at that first general election.Ten years would be a proper length of time for membership before another election, possibly keeping 100 for continuity and then no election after the first five, except for wastage, which might itself be a fair few.

    15 years and a 100 after a hundred, is too many years and too few elected.

    • Lord Norton
      Lord Norton
      30/05/2011 at 12:32 pm

      Gareth Howell: There would not be a saving. The salaries of the new members apparently are intended to be betweeen those of members of the devolved legislatures and MPs; you then have the add-on costs of NI, pensions. Very few people argue that they should not have to resources to do their job, which means a minimum of one full-time member of staff per member, though in practice I suspect it will extend at least to a secretary and researcher. Because current members tend to do their own research, I suspect the demands on library research resources will increase, adding to the cost of the collective resources. Overall, the number of members, secretaries and researchers in receipt of salaries will probably be on a par with the total number of members of current House, who receive only allowances (when they turn up) and out of those allowances have to pay for any secretarial or research support. It is also worth noting that the White Paper envisages ‘all’ members of the transitional House being salaried, a category that includes presumably those life peers who continue.

  4. Twm O'r Nant
    26/05/2011 at 5:38 pm

    Well I’m a Welsh man and english is my second language and I’ve read the Draft bill so why can’t some of you do the same, instead of rising to Quixotic challenges from Lord Norton?

    Read the bill first!

    • Lord Norton
      Lord Norton
      27/05/2011 at 10:48 am

      Twm O’r Nant: And having read the Bill?

      • Twm O'r Nant
        27/05/2011 at 6:26 pm

        And having read the Bill?

        Why should I not tilt at windmills too?
        The greatest story ever told!

  5. Gareth Howell
    26/05/2011 at 6:05 pm

    A 15 year term makes a complete nonsense out of libdem plans for reform. AND re-election after that if somebody wants to?

    like these US state bicameral Assemblies and legislatures, the terms of office should be
    at most to serve 2 TWO terms of 5 years and then Finished, caput, end, no more, out! done!

    One term of 15 years is utter nonsense!!!!

  6. Denis Cooper
    27/05/2011 at 2:12 pm

    Dismissing my proposal that both Houses of Parliament should be elected simultaneously through the application of FPTP-SPTP in 600 constituency elections, Lord Norton writes:

    “You need a government that is collectively accountable for public policy, otherwise there is no accountability. There is little point in increasing individual accountability at the expense of collective accountability, since no one member is responsible for the public policy assented to by the legislature.”

    I have to confess that I don’t really understand what he can mean by that.

    The “FPTP” element of my proposed system means that the House of Commons would be elected as now, with the MP for a constituency being the candidate who received the greatest number of votes in the constituency election.

    Normally that would lead to a single party having a Commons majority, as now, and forming a single party government, as now. That government would then propose the implementation of parts of its programme through legislation, as now. The opposition would then try to pick holes in the government’s Bills, as now. It would make some good criticisms and some poor criticisms, as now, but in almost all cases the government would use its majority to brush aside those criticisms, as now.

    Similarly there would be no change to the power relationship between the Commons and the other House of Parliament laid down in the Parliament Acts, with the Commons keeping control of the purse strings through Money Bills, as now, and the Second Chamber only able to delay other Bills by about 13 months, as now, apart from the case of a Bill to postpone elections and extend the life of Parliament beyond five years where the Second Chamber would retain an absolute veto, as now.

    The only changes would come through the use of “SPTP” to fill the Second Chamber with the parliamentary candidates who came second in their constituency elections.

    By deliberate design, that would mean that the governing party would never have a majority in the Second Chamber as well as in the Commons.

    Moreover each member of the Second Chamber, a Second Member of Parliament or SMP, would have a degree of democratic legitimacy rather than the zero democratic legitimacy of the members of the present House of Lords – although the SMP for a constituency would have received fewer votes than the MP, by a few votes or by thousands of votes, he would still have been directly supported by thousands of electors rather than none.

    Lacking a majority in the Second Chamber, the governing party would not be able to control the timetable or the chairmanship and composition of committees in the way it can in the Commons, and with a greater degree of democratic legitimacy the opposition members would not only be more willing to subject government Bills to the thorough scrutiny which is often lacking in the Commons but would also be more prepared to delay them while further public debate took place outside Parliament.

    In the end each SMP would be accountable to the electorate in his constituency for his conduct during the years since he took his seat, and comparisons would be made to the conduct of the MP.

    In some cases the electorate might feel that the SMP had done a better job than the MP, and at the following election their positions might be reversed; in other cases the SMP’s party might feel that his performance had been so poor that he should not be re-selected as its official candidate lest a third party candidate displaced him, and so on.

    Far from diminishing public accountability the FPTP-SPTP system would significantly enhance it, and of course it would lead to an improvement in the quality of the laws passed by Parliament.

  7. danfilson
    30/05/2011 at 1:35 pm

    One aspect of the proposals has not received much notice yet (and I recognise I’m shoe-horning this issue into this thread in default of any other that fits) – the provisions for filling casual vacancies.

    Instead of by-elections, which would indeed cost a bit to run and would defy the proportional representational requirements if a single member were elected from a seat of several times 570,000 voters, it is suggested that a substitute member be appointed, by looking at the party of the member who has departed from the house (whether on a voluntary or involuntary basis), and picking the next in the voting from that party. So if the first and second Labour candidates got elected, and let us say the second died in office, the third in terms of votes would get into the Lords without a vote for the remainder of the deceased candidate’s term of office until the next quinquennial elections take place. Potentially he or she could hold a seat for up to 5 years without strictly being elected.

    In the opening months of a 5-year period, this may not be too bad for all concerned, shaky though this procedure seems. But he or she will have the option of declining the elevation. So next the system turns to the 4th candidate, and so on until someone is found from that party who is willing to serve.

    If you think back to succession to a hereditary title, some peers knew well in advance that their predecessor was dying so had some time to prepare. Others had no such foreknowledge and had their lives somewhat disrupted by elevation. It will be a lot worse for someone plucked from their ordinary lives who last fought for a seat in the House of Lords say 2 years earlier and had no reasonable expectation of suddenly being elevated.

    Is this really the best way of filling vacancies?

  8. Gareth Howell
    31/05/2011 at 9:41 am

    “Is this really the best way of filling vacancies?”

    No, and Dan has thought about it a little more!


    The Lib dems are governing however many there are in the cabinet, and this draft bill is a sop to their supporters.

    If they were in office with Labour it would be a different matter entirely. That will probably not happen, unless the ‘largest number of votes’ principle were shelved at a a future general election, and the Lib dems chose to go with the ‘lesser number of votes’ party.

  9. Twm O'r Nant
    31/05/2011 at 7:37 pm

    I suspect that not having simultaneous elections with the General elections for the House of Commons would be advantageous to the good balance of legislating and the passing of acts.

    I am far from being expert on the subject of the US senate and congress, stymies and deadlocks, but any proposed reform could certainly learn from them, and learn how not to do it.

    Most people knowledgeable about US federal politics can explain the difficulties.

    If the second chamber is elected, does that not then destroy the justification for the Parliament Act?

    Justification is not a good word; put another way would it destroy the purpose of the said parliament act, or its rationale? It might a little, but, in the words of one comedian of recent year, “not a lot!”

    he believes that the Act passed to assert the primacy of an elected House over an unelected House can continue even when the second House is elected because, er, well….. ?

    Because the second house has lesser powers, although it is democratically elected.

    Humpty Dumpty.

  10. Matt
    31/05/2011 at 8:41 pm

    I was a supporter of AV, but I think the general public have sent a strong message already that they are not keen on any electoral system that is too ‘tricksy’. And STV etc is even more tricksy than AV! Surely, if we are to have say, two ‘senators’ per large constituency, the simplest method is ‘FASPTP’ – ie, First And Second Past The Post??

    • danfilson
      01/06/2011 at 11:55 am

      The problem with that, Matt, is that this would require constituencies to be of equal size as otherwise the two ‘senators’ would represent different numbers, sometimes considerably different, of constituents (a microcosm of Californis and Rhode Island each sending 2 senators). As it is, Northern Ireland will be quite a small population base from which to elect its share. The essence of STV for these elections is that it will ensure a proportional representation of the voters to complement the FPTP representation the House of Commons will give. First and second past the post is essentially winner-take-all This could result in nothing but Conservatives from the South of England, except London, and nothing but Labour from the north of England, and so would worsen further the under=representations of Conservatives and Labour in the north and south of England. What would happen in Wales, I imagine, is a Labour sweep, and in Scotland it might either be that or SNP and Labour carving it up between them. This would not be a fair representation of Wales and Scotland either. The coalition are apparently united in proposing STV for this particular election, so let us go with it. There are enough other problems with the bill to concern us!

  11. Matt
    01/06/2011 at 1:28 pm

    @ danfilson

    1. Having House-Of-Commons constituencies of roughly same population will help Second-Chamber constituencies to be the same, as the HOC constituencies simply need to be clumped together into larger areas.

    2. The Second Chamber does not need to be proportionally-representative, it just needs to have a sense of connection with the electorate, and not be dominated by one party. PR doesn’t count for anything if it is only going to apply to a third of the country per general election, anyway. And nor does the Commons want it to count for anything, since it wants to maintain a legitimate claim to primacy.

    3. I have, in an admittedly arbitary way, grouped together five adjacent constituencies at a time, from the last general election; in South of England, North of England, Walea, Scotland and N.Ireland. The figures below show the leading contenders (in thousands of voters), and who would have come first and second (ie, sending two members to the Senate) in that larger area …


    Surrey South West con 33, lib dem 17
    Guildford con con 29, lib dem 21
    hampshire east con 29 lib dem 15
    aldershot 21 lib dem 15
    surrey heath con 31 lib dem 14

    …. elects con and lib dem


    leeds central lab 18, lib 7, con 7
    leeds east lab 19, con 8, lib 6
    leeds NE lab 20, con 15, lib 9
    leeds west lab 16, lib 9, con 7
    elmet & rothwell con 23, lab 19, lib 9

    …. elects lab and con


    ceredigion lib 19, plaid 10
    camarthen E plaid 13, lab 10, con 8
    llanelli lab 15, plaid 11
    camarthen W con 16, lab 13
    preseli con 16, lab 12

    ……… elects con and lab


    dumfriesshire … con 17, lab 13, lib 9
    berwickshire .. lib 22, con 16
    dumfries & galloway … lab 23, con 16
    midlothian … lab 18, snp 8, lib 6
    east lothian … lab 21, con 9, lib 8, snp 7

    ………. elects lab and con


    belfast W .. sinn fein 22
    belfast N .. dup 14, sinn fein 12
    belfast S … sdlp 14, dup 8,
    belfast E … alliance 12, dup 11
    lagan valley .. dup 18, con unionist 7

    ………… elects sinn fein and dup

  12. danfilson
    01/06/2011 at 5:56 pm

    The flaw, Matt, is that you are lumping constituencies together into bunches of fives, i.e. roughly 360,000 whereas the average multi-member seat needs to be 570,000 to give the 80 members required.

    If you have 5-seat constituencies you will have illogical groupings in some parts of the UK. It’s interesting to note that your, presumably random, 5 examples produce 4 Conservatives, 3 Labour, 1 Libdem, 1 DUP and 1 Sinn Fein (who, of course, wouldn’t show up). On the face of it that is roughly proportional to the voters, but it still tends to mis-represent the regional differences which having 570,000 seats would achieve by STV. You also do not mention how the winning conservative or winning Labour etc would be picked. Under STV as proposed, the voter gets to choose which Conservative to put at no 1, no 2 etc. Many people – though not necessarily the parties themselves – think that would be good.

  13. Matt
    02/06/2011 at 4:12 pm

    @ danfilson

    Many people? Remember that the people have said quite resoundingly that they don’t want to bother with all that ranking in 1,2,3 business – that is why I offered my simpler model.

    80 members at a time would need 40 large areas. In three waves, that’s a total of 120 areas, which can be fitted well enough to the traditional shire/county areas. Again, this is something people are comfortable with, and I don’t see it achieves anything to try to get more ‘logicality’.

    Roughly proportional is good enough for me. After all, what’s the use of saying, ‘these members reflect our exact proportional preferences …as they were 14 years ago!’?! It is simpler to maintain a rough party balance, that can be tipped slightly this way or that, in a gradual+residual way, at each election.

    As for which Conservative, or which Labour person gets in, the local party associations themselves should be holding open primaries for that.

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