Moving the House of Lords?

The issue of moving the House of Lords out of London has again reared its head with Levelling Up Secretary Michael Gove writing to the Lord Speaker telling him that his Department, which holds the lease on the Queen Elizabeth II Centre, will not make the Centre available for use by the Lords during the Restoration and Renewal (R&R) of the Palace of Westminster.

I have previously written on the proposal to move the House out of London.  I did an interview on the subject last week for GB News.   Also, as the Guido Fawkes website recorded, Michael Gove appeared last week before the Association of Conservative Peers, writing that ‘Guido’s mole reports Lords Norton, Geddes, King, Taylor, and Hayward all raised concerns’.  To say ‘raised concerns’ is uncharacteristically diplomat.

The principal problem is not relocation as such.  Moving has significant practical problems.  It is not a case of simply moving the chamber, as many appear rather glibly to assume.   It entails a whole ecosystem of committee rooms, offices for members, chamber and support staff (clerks, specialist advisers, administrative officers, attendants), and members’ staff as well as support services.  It is often overlooked just how many thousands of people work in the Palace of Westminster.  There is also the issue of where will all the organisations that work with and seek to influence Parliament – charities, firms, professional bodies – locate themselves as well as the challenge of creating a transport hub that matches London in enabling the public to visit.

Leaving aside such practical issues, the principal objection is not to relocation as such, but to separating the two chambers.  Parliament is where it is because Government is where it is.  The two Houses have to work closely together to scrutinise Government and call it to account.  It is not just a case of the formal relations between the two Houses, but the extensive and often informal contact between members of the two Houses.  Separate the two so that this contact largely ceases and you empower the executive.  What is being advanced here is essentially a power grab by Government.

The consequences of members not being able to interact, and interact quickly, with one another was demonstrated during the pandemic when members were dispersed around the country.  Meeting virtually and then in hybrid form was a success technically, but a major constraint politically. There was none of the extensive daily interaction between members that ensured they exchanged information and reacted promptly to ministers’ statements and actions.  The problem was especially acute in terms of interaction between members of the two chambers.  I virtually had no contact with MPs during that period.  Normally, I regularly have meetings with them and gain a lot simply by virtue of serendipity, often bumping into them when walking over to, or when in, Portcullis House.  I have written on the significance of the use of informal space in the legislature.  How members use it can have a notable impact on policies as well as the future of ministers and political leaders.  We need to protect such space and for its use by members of both Houses.

There is a case for moving if it entails both Houses and Government moving, creating in effect a purpose-built capital akin to Bonn or Brasilia, but not separating the chambers.  Moving the Lords engages not a dislike of this city or that city, but a fundamental constitutional objection.

Tackling bad law…

The latest House magazine carries an article by me on the problems facing Parliament in scrutinising legislation effectively.  There have always been challenges, but these have been exacerbated in recent years by the ‘something must be done’ mentality of government – a problem arises, the government announces it will address it by legislation, even if it can be tackled better by other means or if legislation already exists.  Legislation is rushed through, the government sometimes re-writing a bill as it goes through, often with provisions that will never be commenced.  As I pointed out in an earlier post, there are over 480 acts passed between 1960 and 2020 with at least one section or schedule never commenced.  There is also a tendency for ministers to engage in power grabbing through the use of Henry VIII provisions and skeleton bills.  The former empower ministers to change primary legislation through secondary legislation.  The former – also dealt with in an earlier post – are framework measures, given ministers power to fill in the detail later.

Regular readers will be familiar with the problems I identified.  I asked ‘Is there a solution?’ and offered the following conclusion:

“There are various reforms worth pursuing, including the creation of a legislative standards committee.  However, no reforms will make a difference without the political will to make them work.  Unless member of both Houses are prepared to use their existing powers, ministers will continue to engage in power-grabbing practices that reflect laziness and a failure to think through policy.  Good government requires an effective Parliament.”

It is just one of several problems facing Parliament.  Another, on which more in due course, is public trust.

Success in the Private Members’ Bill ballot

Last session, I introduced a Private Member’s Bill – the House of Lords (Peerage Nominations) Bill – to put the House of Lords Appointments Commission on a statutory basis.  The Bill had not been successful in the ballot at the start of the session, so was not guaranteed being scheduled for a Second Reading debate.  In the event, I was able to make the case for the Bill through a Question for Short Debate (QSD), as covered in an earlier post. 

I entered the ballot in this new session.  Twenty-five Bills are drawn in the ballot.  I was fortunate in that mine was drawn at number 13.  Had it come closer to the top, it would have been in the running for a Second Reading debate before the summer recess.  All being well, it will be debated later in the session. 

The case for putting the Appointments Commission on a statutory basis – along with some similar bodies – is a strong one.  Controversy has attached to some nominations in recent years.  The Appointments Commission vets nominations, but is limited in its remit – it can only check for propriety, not suitability – and relies on the Prime Minister acting on its advice.  The need to strengthen the appointments process, ensuring it is robust and transparent, is a necessary, though not sufficient condition to ensure the means by which people join the House of Lords enjoys public support. 

As was shown in the debate I initiated last year, there is strong support in the House for such a measure.  The challenge is getting the Government to accept it. 

Constitutional norms and strengthening parliamentary scrutiny.. my letter to The Times

On Wednesday, The Times carried a powerful article by Daniel Finkelstein on the failure to uphold constitutional norms and the need for Parliament to be strengthened as a body of scrutiny.  He likened it to the physical decay of Westminster, with the Palace crumbling and bits of masonry falling off.

I wrote in response to the article and my letter led the letters page on Thursday.  For anyone who is not a Times’ reader. here is what I wrote:

Sir, Daniel Finkelstein (‘How we can fix our constitutional crisis’, 20 April) is spot on in identifying the need to bolster both the constitutional norms at the heart of government and the capacity of Parliament to enhance the quality of legislative scrutiny.

What he prescribes is necessary, but it is not sufficient.  If Parliament is to do its job effectively, there has to be the political will to achieve change.  That requires getting MPs to recognise that strengthening the institution of which they are members is in their self-interest.  The public judge MPs by what they do individually as much, if not more so, than what they do collectively in scrutinising legislation and public policy, fundamental as that is to a healthy system of government.  If MPs are to avoid not just the masonry of the Palace of Westminster falling on them, but also the masonry of the system that keeps them in place, they need to cease hiding in plain sight.

Lord Norton of Louth

Professor of government, Hull University

The decline of politics?

I studied under Bernard Crick, who wrote the seminal work In Defence of Politics.  Politics is essentially the means by which disputes over issues of public policy are resolved.   The use of debate is core to politics.  To be politics there has to be disagreement.  If there is unanimity, there is no politics.  If there is imposition, as by a dictator, there is no politics.

Politics therefore requires freedom to debate.  Parts of the globe are essentially politics free.  The 20^th Century started with only a minority of nations that were democracies.  By the end of the century, a majority were democracies.  Unfortunately, we still see dictatorships, where only one view is imposed.   We see instances of nominal democracies where politics are in retreat or have largely ceased.

Where politics takes place, there is also a problem.  I would distinguish between good and bad politics.  Good politics is not only where there is debate, both sides recognising the legitimacy of the process, but also where each side recognizes the other side has an argument that merits respect and engagement.  Arguing one’s case entails understanding one’s opponents’ argument and engaging with it.  The more you understand the arguments advanced by the other side, the stronger you are in developing your own case and rebutting that put by the other side.

One of the great merits of both Houses of Parliament is that they provide a structured arena for debate, for hearing different sides of an argument and ensuring that each side has the opportunity to be heard.  Parliament is largely organized on the dictum that the Government is entitled to get its business discussed, but that the Opposition is entitled to be heard.  In the Lords especially, you may not agree with peers of other parties, but you listen to them with respect and may be influenced by what they say.  Parliament also, through law, establishes the framework for debate to avoid abuse through violence or inciting hate, both of which are antithetical to respect for others.  It has wrestled with such issues as trying to ensure an even playing field in referendum debates.

Bad politics is where neither side really engages with the other.  Proponents tend to assert their case and not really acknowledge that the other side has an argument.  ‘I am so clearly right, you are simply wrong.’  The tendency is to shout at one another.  Where one side tries to shout down the other, then one is starting to move beyond politics.  I fear there is a growing tendency towards bad politics, to asserting one’s case and not being prepared to engage in debate.  Social media exacerbates this, facilitating unsubstantiated sound-bites.  Twitter enables people who cannot or won’t debate to tweet an assertion without having to justify what they have written.  Bad politics is also characterized by ministers making statements outside Parliament rather than coming to the House to engage with members.

I fear the Brexit referendum campaign was an instance of bad politics, with many on each side  – there were honourable exceptions – being so convinced of the rightness of their case that they were not prepared to concede merit to their opponents’ arguments.  ‘Brexit will save the nation.’  ‘Brexit will be a disaster’.  After the event, it has been a case of asserting that one was right all along.  Saying Brexit was a disaster – or that it has delivered untold benefits – while berating the other side adds nothing and maintains the toxicity that characterized the campaign.  It does nothing to persuade one’s opponents of the error of their ways.  (‘Oh, of course, I’m a complete tosspot.  Thank you for drawing it to my attention.’)  Proponents on either side continue to see life primarily through the prism of Brexit (‘Oh, they are saying/doing that because they are remainers/Brexiteers’) and seem incapable of breaking out of that mindset.

If you truly believe in your argument, you should have the confidence to advance it in debate with those who take a different view.  By understanding their argument strengthens you in developing your own.  Debating is at the heart of a healthy democracy.  That is one reason why Parliament is so crucial to our political system, why we need to ensure that it facilitates debate rather than shouting matches and assertion, and that it is characterized by comity and high standards.   There is vital work to be done.

Receiving the Isaiah Berlin Prize…

At the Annual Conference of the Political Studies Association, held this week at the University of York, I was awarded the Sir Isaiah Berlin Prize for a Lifetime Contribution to Political Studies.

Receiving the award was a remarkable honour, but the point I stressed in receiving it was that the reasons for its conferment meant as much to me as the award itself.  The citation is something I shall treasure as much as the certificate.  The citation reads:

“The Sir Isaiah Berlin Prize exists to reward outstanding contributions to political studies made across an entire career. Among the many current and retired colleagues who might be considered for this distinction, the judges this year were unanimous in wishing to bestow this prize upon Professor Philip Norton of the University of Hull, Lord Norton of Louth.

This award was made in acknowledgement of an extraordinarily wide-ranging contribution, sustained over many decades. Prof Norton has, through his own work, advanced enormously parliamentary studies and understanding of the British constitution. He has also played a vital role in encouraging the wider development of these fields of study: as a mentor and supporter of many younger scholars, and through founding and editing (for nearly three decades thus far) the Journal of Legislative Studies. Notable throughout many of these contributions have been Prof Norton’s support for comparative study, and an openness to new approaches and perspectives. An inspirational teacher to generations of students, Prof Norton has also been a key leader in the development of parliamentary studies as a part of the curriculum – first at Hull, and now across many institutions. Last, but certainly not least, as Lord Norton since 1998 Philip has made a considerable and important contribution to British public life. He has used his role in the House of Lords to bring informed expertise and a deeply humane perspective to bear on many issues and has often been notable for the independence of his contributions. For all these reasons and more, Prof Norton is a very worthy winner of the Berlin Prize.”

The breadth of coverage is what I especially appreciate, coming as it does from one’s academic colleagues.

The demise of the Fixed-term Parliaments Act

Last week, the Dissolution and Calling of Parliament Bill completed its passage through both Houses and on Thursday received Royal Assent.  The Act repeals the Fixed-term Parliaments Act (FTPA) and puts the situation back as far as possible to that which existed prior to the enactment of the FTPA in September 2011.  As I have previously explained, repealing the FTPA is necessary, but not sufficient to restore the status quo ante as the legislation repealed by the FTPA does not come back into existence.  The statutory limit on the length of a Parliament as stipulated by the Septennial Act, and amended by the Parliament Act, no longer applied.  One thus had to provide for a limit in the new measure, otherwise there would be no formal constraint on the lifetime of a Parliament.

The Dissolution and Calling of Parliament Act is a short measure.  Section 1 repeals the FTPA, section 2 revives the prerogative power to dissolve Parliament and call a new Parliament (inserted for the avoidance of doubt, as constitutional scholars were divided on whether or not the prerogative was in abeyance and automatically revived on repeal of the FTPA), section 3 is an ouster provision preventing the courts from questioning the exercise, or purported exercise of the prerogative power or decisions relating to those powers, or the limit and extent of those powers, and section 4 stipulates that if it has not been dissolved earlier, a Parliament dissolves at the beginning of the day that is the fifth anniversary of the day on which it first met.

The measure is clearly constitutionally significant, but given how short it is, few amendments were tabled to it in the Lords.  Most of those that were put down were tabled by me.  One was designed to make clear that the prerogative power is a personal, or reserved, prerogative power, that is, one not exercised on advice.  This was in response to a slip-up by Government when it first published its explanatory notes to the Bill, which said that the power to dissolve was exercised on the advice of the Prime Minister.  The Prime Minister recommends, but cannot advise as the monarch would have to act on the advice.  I got what I wanted, which was a confirmation from the dispatch box that it is a personal prerogative power.

I also tabled amendments to remove reference to ‘purported’ in Clause 3 as well as the exclusion of the courts from questioning the limits and extent of the powers in Clause 2.  I did so because the latter exclusion conflicts with the rule of law and the purported exercise gave ministers too much power and in any event were redundant as the power is not exercised on advice, so there could be no advice to challenge.  I pursued the amendments at both committee and report stage, but did not press them as there was not a majority to carry them (the House rejected a move by Lord Butler to remove the clause) and in any event they are likely to prove otiose for reasons I developed.

The House did pass an amendment, moved by Lord Judge, stipulating that a recommendation for a general election had to be approved by a simple majority in the House of Commons.  This was rejected by the Commons and not insisted on by the Lords.  I did not support the amendment because the Government (and indeed Opposition) had a manifesto commitment to repeal the FTPA.  Had the amendment been made, the measure would not be a FTPA Repeal Bill but a FTPA Amendment Bill, modifying section 2 of the FTPA as to when an early election could be called.

As I said on Second Reading, the 2011 Act created problems because it was a Fixed-term Parliaments Act rather than a Fixed-term Parliament Act.  It was introduced to deal with a particular political situation, but one that was not confined to that situation, with the constitutional implications not being thought through properly.

The Fixed-term Parliaments Act is now gone and is not generally lamented.  For me, there was one merit in having it on the statute book, to which I referred in committee when replying to the debate on one of my amendments:

“I take the point of my noble and learned friend Lord Mackay of Clashfern that there is an extensive academic argument about whether the prerogative can be revived. I am very much in favour of academic debates taking place, since if they did not, I would be out of a job. From my point of view, the one good thing that came out of the Fixed-term Parliaments Act was the number of articles I managed to publish on the subject.”

I may need now to get to work on the Dissolution and Calling of Parliament Act…

Bare bones legislation. The use of skeleton Bills.

Last Thursday, the House of Lords debated the increasing use by Government of skeleton, or framework, Bills – Bills that are drafted in outline and confer powers on ministers effectively to fill in the detail later.  As Baroness Cavendish of Little Venice said in opening the debate, Whitehall finds it increasingly useful to employ such powers.  ‘I know from experience, as do many of us here, that Ministers are usually mightily relieved if they are told that they can get something done without the tedium of having to go back to Parliament’.  As she argued, the cumulative effect of these powers is corrosive.  She drew on the recent reports of the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee (see my earlier post, ‘Parliament under threat’) which argued that the use of such powers may also conceal a growing tendency to draft Bills before thinking through the underlying policy.  She concluded that laws that affect our lives and rights should not be made by bypassing the very institutions which are supposed to be a check on power.

I spoke in the debate.  There were so many speakers that we only had four minutes each.  I said that the ‘something must be done and done quickly’ mentality affected Governments of all persuasions and led them to resort to legislation.  I queried whether such legislation was needed, as evidenced by the sheer number of statutes containing provisions that were never commenced (see my earlier post, ‘When law is not law’).  I used the opportunity to advance the case for a Legislative Standards Committee, which had been advocated in the Lords by the Leader’s Group on Working Practices in its 2011 report and in the Commons by the Political and Constitutional Reform Committee in its 2013 report, Ensuring Standards in the Quality of Legislation.  Such a committee would be able to report on skeleton Bills prior to their consideration in either House and it would not be constrained in the way that our committees dealing only with delegated legislation are constrained.  Although it would be desirable to have such a committee as a joint committee of both Houses, I am not sure that there will be the necessary political will in the Commons to support and sustain such a committee.  The subject matter is core to the health of the political system, but MPs would not necessarily regard membership of such a committee as a priority.  It may therefore fall to the Lords to take the lead.

The proposal was endorsed from the Opposition Front Bench by the Leader of the Opposition, Baroness Smith of Basildon.  It is important to generate support for establishing such a committee.  The danger is that otherwise skeleton Bills will continue to be used by Government, and on a growing scale, unnecessarily so, and encouraging laziness on the part of Government.  Good Government requires an effective Parliament.

You can read my speech here.

Winner of the Christmas caption competition

There were some splendid and innovative entries entries for the Christmas caption competition.   Many thanks to all those who contributed and added to the Christmas cheer.  There was some notable bunching for the runner-up slot, so much so that I have not selected any one, or even two, for that designation.  It would probably have been easier to list the few that did not merit the designation.  There was, though, a winner, meeting the ‘laugh out loud’ test and drawing on the details of the picture.  It was a close-run finish.

The winner is Ken Batty with:

‘If I pull this cable out at least they won’t have to hear the daft old git!’

A prize of one of my publications will be on its way shortly.

Festive cheer – a Christmas caption competition

I thought it may be appropriate to inject a bit of festive cheer by having a caption competition.  I know it is a popular feature with some regular readers, and brings out the competitive spirit in a few.   I realise I have not posted one since August.  For this competition, I have selected the picture of me speaking at a reception at Westminster Abbey in September.  I did wonder if it would lend itself to any amusing captions, but a friend looked at it and immediately offered an extremely funny caption.  If no else comes up with a witty caption, I may declare him the winner by default!  The usual rules apply in that a prize will be offered to the reader who comes up with what in my view is the wittiest and most appropriate caption.  The prize will be one of my publications.  What more could you ask for Christmas?

Wishing all readers a very happy Christmas and peaceful (and safe) New Year.