Here we go again…

Over the course of the past few weeks, given developments in respect of the EU, the Lords, and claims about Parliament by MP Mhairi Black, the media have been churning out claims that would do justice to Donald Trump.  Fact-checking is not the strong suit of some political correspondents.  For the record:

The Prime Minister cannot ‘call’ a ‘snap election’.   As I have explained before, and more than once, what she can do is ‘call for’ an ‘early election’.  The terminology is important.  It may well be that the PM could achieve an early election under either section 2(2) or 2(4) of the Fixed-term Parliaments Act, but it is no longer in the gift of the PM to go to Buckingham Palace and invite the Queen to dissolve Parliament and call a new election.  The Queen retains no residual powers in respect of dissolution.  Under s2(2) the PM is essentially dependent on the Opposition to agree to an early election and under s2(4) she is dependent on the House of Commons to pass a vote of no confidence in the government.   Some newspapers, including now The Times,  do acknowledge the provisions of the Act, but one still sees speculation as to whether the PM ‘will call a snap election’.  Aargh.

Mhairi Black is not the youngest MP in 350 years.  As I have previously reported, again more than once, she is the youngest MP since 1832.  It was not unusual before then for MPs, such as Charles James Fox, to be elected under age.  Minors were not formally permitted to be Members, but took their seats ‘by connivance’.  Between 1790 and 1810, at least 29 MPs were elected under age.  ‘Viscount Jocelyn, returned in 1806, was barely 18 years old’ (R. G. Thorne, The House of Commons 1790-1820, p. 278).

Electing a second chamber is not self-evidently ‘the democratic option’.  Critics of the House of Lords trip out that we need an elected second chamber and justify this on the grounds that it is obviously the democratic option.   I have variously explained that this is not self-evidently the case.  I developed the point recently in my speech in the Second Reading debate of a Private Member’s Bill to provide for election.  Democracy is about how people choose to govern themselves.  In the UK, the choice is made through elections to the House of Commons.  A party is elected to government on the basis of a particular programme, seeks to implement that programme – parties, contrary to some popular perceptions, do not have a bad track record of implementing manifesto promises – and are then answerable to electors at the next election.  Election day, in Karl Popper’s words, is ‘judgment day’.  We have core accountability.  If one elects a second chamber, there is then the prospect of divided accountability, denying electors a body they can hold to account for the outcomes of public policy.   My colleague, Professor Colin Tyler, who specialises in democratic theory, made this point also and rather pithily in his evidence (p. 200) to the Joint Committee on the Draft House of Lords Reform Bill.

It was notable in the Second Reading debate that proponents of electing a second chamber really had no answer to my point, relying instead on claims that electing a second chamber was a feature of a ‘modern democracy’, failing to identify how this differed from ‘democracy’ and indeed failing to define their terms at all.

Perhaps I should start inviting readers to identify when these claims get rehashed in the media so that we can compile a list of shame…

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About Lord Norton

Professor of Government at Hull University, and Member of the House of Lords
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11 Responses to Here we go again…

  1. tizres says:

    A tweet from an MP:

    “Here’s my Great Aunt Mabel Philipson MP, the first BRITISH woman in the Commons, 1st elected in bi-election in 1922”

    Surely, the ratio of errors to characters can’t be beaten?

    • Lord Norton says:

      Oh dear. Given my Louth background – Margaret Wintringham (b. Silsden, Yorkshire) elected for Louth in a by-election in 1921 – that is especially irritating.

      • Croft says:

        first British female Conservative MP perhaps…

        My pet annoyance with the ‘democracy’ argument is that the same people who make it almost always insist that the new elected lords mustn’t challenge the primacy of the commons. Which seems to throw up a whole series of arguments they don’t seem to have thought through at all. The commons primacy exists because it was the elected house not because it is the commons. As soon as both houses are elected there is no inherent argument that the commons should have primacy. Even setting that aside – whats the purpose of the new elected house if it is not to reflect its voters and therefore logically challenge the commons more than the Lords presently will. If you then have to legislate to stop them doing so it does seem a somewhat pointless exercise to elect them in the first place.

        Btw…what the purpose of the sign in book for PCs etc sitting on the steps of the throne?

  2. Lord Norton says:

    Croft: I agree. If the second chamber is elected, the rationale for the Parliament Acts disappears. The implication was recognised by the drafters of the Parliament Act 1911. The second paragraph of the preamble is regularly quoted, but less so the third, which essentially recognised that if an element of election was introduced, the powers of the House would have to be reviewed.

    I am not sure that PCs signing in when sitting on the steps of the Throne has much significance other than acting now as a record of who has attended.

    • Croft says:

      I imagined it must have some historic reason though I couldn’t think what it might be…

      On the earlier points something of the same muddled argument seemed to occur with the attendance argument. The Commons SC seemed to get v bogged down on the issue. It seemed accepted as self-evident that high attendance was a good thing. That a has-been (or should that be ‘never-was’) MP kicked up to the Lords was a better member for attending 90% of sittings than a less frequent attender who confined their activity to that speciality of knowledge for which they may well have been selected in the first place…

  3. jdmussel says:

    Croft, Commons primacy may have *arisen* because the Commons is elected but it currently *exists* by virtue of the Parliament Acts. Though an elected upper house removes the rationale for them, to my knowledge no proposed reform bill set out to eliminate the Parliament Acts while reforming the House of Lords. Which means that the primacy of the Commons would remain insofar as the Parliament Acts make it part of law. Look to other countries with a similar setup – an elected upper house with no full veto but only delay power (e.g. Poland and the Czech Republic). Do those houses challenge the primacy of the upper house? Bereft of the formal power to do so, they simply are not able to.

    Now these are just my observations on the actual proposals which have been made. My own opinion is that having a (mostly) elected upper house, with substantially more power than currently (over non-money bills), would be a splendid solution to the ‘elective dictatorship’ problem, as Lord Hailsham proposed. This works quite well in Australia and would work quite well in Britain and other Westminster democracies as well.

  4. Lord Norton says:

    jdmussel: It depends whether you prioritise the fragmentation of power over accountability. If the second chamber is elected, it will be in a position to claim more powers (not necessarily co-equal powers with the first) as well as likely feeling more emboldened to use the existing powers of the House, which the existing membership refrains from using to the full. If you prioritise accountability, then the Australian system, like that of the USA, does not work quite well.

    • jdmussel says:

      It’s not so black and white. There is far clearer accountability in Australia than in the US. Having a fair measure of accountability does not require leaving 100% of the power with one party, whose mandate to govern rests on as little as 36% of the vote; that’s not simply prioritising accountability but taking it as the absolutely sole criterion, and it leaves the system dangerously unbalanced. Lord Hailsham was right to call it elective dictatorship, and having a real check on the power of the House of Commons is a sensible solution to this problem, especially in a country with no entrenched constitution. It’s not prioritising checks on power over accountability, it’s establishing a balance between them. And where are these elected upper houses that demand – and get – more and more power? I know of no real-life examples.

      • Lord Norton says:

        jdmussel: Hailsham was rather like Bagehot in that he was describing a system just as it was about to change. Even Hailsham later recanted. I have an article forthcoming in ‘Political Quarterly’ examining how we have moved away from the situation Hailsham described. The system is not dangerously unbalanced and if anything there is a need now to protect the core accountability to the benefit of electors. The reason you know of no real-life examples is because I am referring to a situation where one moves within an established polity from an appointed to an elected House. The reason the existing House does not use to the full the powers it has already is because it is not elected. There is no reason why an elected House would show such self-restraint.

    • James Hand says:

      Lord Norton: was Lord Campbell-Savours correct when he said that you ‘said that an indirectly or directly elected House *would* challenge the primacy of the Commons’? If the House included a substantial cross-bench element and indirect election was used to broadly allocate party shares of peers (perhaps on a rolling 3 General Election average), the Commons would still be the primary and accountable House. Appointments in recent years have taken account of the need to look to broad proportionality of members (and led to the expansion); a reset mechanism would allow the role of the House (the first consideration) to remain the same, justify some of the limited emboldening of the opposition (currently witnessed) and constrain the size of the House to a more workable number without the discriminatory arbitrariness of age as a cut off (e.g. http://ukconstitutionallaw.org/2014/06/29/james-hand-lords-response-to-labour-peers-working-group-report-a-programme-for-progress-the-future-of-the-house-of-lords-and-its-place-in-wider-constitution/) and could allow those who attend rarely but whose significant attendance is valued to remain.

  5. tizres says:

    “No-one elected this Prime Minister” or similar.

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