Extension of Franchise (House of Lords) Bill [HL] (HL Bill 6 of 2013–14)

This Library Note provides background information on the disqualification of Peers from voting at elections to the House of Commons, in anticipation of the second reading of Lord Dubs’ Private Member’s Bill on this issue on 5 July. It sets out the current common law position on the disqualification and summarises some of the recent debates that have taken place on the subject. It concludes with further historical background, summarising debates in Parliament since the 1850s on this issue, which reflect, to an extent, wider reforms to Parliament and the franchise.

Matthew Purvis 25 June 2013 LLN 2013/016

House of Lords Library Notes are compiled for the benefit of Members of the House of Lords and their personal staff, to provide impartial, politically balanced briefing on subjects likely to be of interest to Members of the Lords. Authors are available to discuss the contents of the Notes with the Members and their staff but cannot advise members of the general public.

Any comments on Library Notes should be sent to the Head of Research Services, House of Lords Library, London SW1A 0PW or emailed to [email protected]. Table of Contents

1. Introduction ...... 1

2. Current Position ...... 2

2.1 Peers ...... 2

2.2 Lords Spiritual ...... 3

3. Recent Debates ...... 4

4. Previous Debates ...... 6

1. Introduction

On 9 May 2013, Lord Dubs (Labour) introduced a Private Member’s Bill to provide Members of the House of Lords with the right to vote at parliamentary elections. The Extension of Franchise (House of Lords) Bill [HL] (HL Bill 6) contains two short clauses:

1. Voting at elections to the House of Commons

Notwithstanding any other provision of law, a Member of the House of Lords shall not be disqualified by virtue of that post from voting at elections to the House of Commons.

2. Short title, commencement and extent

1. This Act shall come into force twelve months after the day on which it is passed.

2. This Act extends to England, Wales, Scotland and Northern Ireland.

3. This Act may be cited as the Extension of Franchise (House of Lords) Act 2013.

An identical Bill by the same name was introduced by Lord Dubs in the 2012–13 session (HL Hansard, 5 May 2012, col 257) but did not proceed beyond first reading and so was not debated.

UK electoral law currently disqualifies from voting at general elections:

 anyone under 18;  Members of the House of Lords;  EU citizens resident in the UK;  citizens of any country apart from the UK, Irish Republic and Commonwealth countries;  convicted persons detained in pursuance of their sentences; and  anyone found guilty within the previous five years of corrupt or illegal practices in connection with an election.

(Electoral Commission, ‘Who is eligible to vote at a UK general election?’, accessed 19 June 2013)

A search of the 189 countries in the Inter-Parliamentary Union (IPU) database indicates that the UK is the only country where Members of the second chamber are disqualified, by virtue of that membership, from voting in elections to the lower chamber (IPU database, ‘Electoral System’, accessed 19 June 2013).

This Library Note sets out the background to this longstanding disqualification relating to Members of the House of Lords. It summarises the common law position and some of the recent parliamentary debates that have taken place on the issue. It concludes with an overview of some of the earlier debates that have taken place since the 1850s.

2. Current Position

2.1 Peers

Common law has long provided that Peers cannot vote at parliamentary elections. This was established by a number of cases, the foremost being Earl Beauchamp v Madresfield [1872] LR 8 CP 245. In this case Earl Beauchamp, and the Marquess of Salisbury in a related case, challenged being taken off the electoral register in their respective counties. The judgment that followed ruled that a Peer of Parliament was incapacitated from voting at an election for a member of the House of Commons and was therefore not entitled to be placed on the register of voters. Other subsequent cases have referred to this judgment. For example, in 1906 the Marquess of Bristol unsuccessfully brought a case for damages after being refused a vote for a representative of the University of Cambridge (Bristol (Marquis) v Beck [1907] 71 JP 99). More recently in the Benn case in 1961—where Tony Benn challenged the inheritance of his father’s peerage—the judgment drew upon the 1872 ruling and clarified that the ban did not just apply to Members of the Lords; rather it meant “that no English Peer may vote at a parliamentary election” (Re Bristol South East Parliamentary Election [1961] 3 All ER 354).

The principle that Peers cannot vote has a longer history that can be found in resolutions of the House of Commons:

Resolved, Nemine contradicente, That no Peer of this Kingdom hath any Right to give his Vote in the Election for any Member to serve in Parliament.

(Commons Journal, 1699, vol 13, col 64)

This resolution was passed each session by the House of Commons by means of a sessional order. This privilege was guarded. Where a Peer—whether a Member of the Lords or not— had been alleged to have voted at a parliamentary election, the House of Commons responded. For example in 1911 Mr McVeagh (MP for South Down) alerted the House to an alleged breach of this privilege by the , who was not a Member of the Lords but had voted both at the January and December general elections in 1910 (HC Hansard, 6 February 1911, cols 24–30). A subsequent report by the House of Commons Committee of Privileges found that Lord Roden had breached the privilege, though no further action was taken (Report from the Committee of Privileges, 12 May 1911, HC 153 of session 1911–12).

Amendments to the resolution were made over the following years to reflect developments. For example, an exception for Peers of Ireland was introduced in 1964 following the . The sessional order was itself abolished in 2000 following the passage of the House of Lords Act 1999 (which enabled hereditary Peers removed from the House of Lords to vote) (House of Commons Procedure Committee, Sessional Orders and Resolutions, 19 November 2003, HC 855 of session 2002–03, Ev 6, Annex B). Until 1909 a related privilege was also passed by sessional order, which resolved that Peers seeking to influence parliamentary elections would be infringing Commons privilege (HC Hansard, 20 July 1909, cols 273–86).

As a result of these developments, Halsbury’s Laws of England notes, in the context of incapacities to vote, that “at common law, a Peer of Parliament was... legally incapable of voting at a parliamentary election, even though his name may have been placed upon the register without objection”. It adds that “by virtue of the House of Lords Act 1999 s 3, the holder of a hereditary peerage is not disqualified by virtue of that peerage (unless excepted under ss 1, 2)

for voting at elections to the House of Commons” (Halsbury’s Laws of England, 2007, vol 15(3), para 110). A consequence of this provision, Lord Norton of Louth has argued, is that the 1999 Act places the disqualification in statute:

Prior to 1999 it was held in common law that it was the status of being a Peer that precluded one being able to vote. Since 1999 (and the House of Lords Act) it is the fact of being a member of the second chamber that prevents one from voting. Hereditary Peers who are excluded from membership of the House are able, under the terms of the 1999 Act, to vote. Members of the Lords can vote in all other (European, local etc) elections.

(Lord Norton, ‘Can Peers vote?’, Lords of the Blog, 7 May 2008)

In January 2011, Dr Hywel Francis, the Chair of the Joint Committee on Human Rights, wrote to Nick Clegg, the Deputy Prime Minister, with regard to this incapacity, in particular how it related to the European Convention on Human Rights (Joint Committee on Human Rights, ‘Letter from Hywel Francis to Nick Clegg’, 11 January 2011). In response Mr Clegg set out the basis on which Peers are unable to vote at general elections:

Parliament consists of the three estates of the Sovereign, the Lords and the Commons. The Lords sit in their own right. The Commons are elected by the remainder of the estate of commoners to represent them in Parliament. There was therefore no case for the Lords to vote to elect representatives, since they were able to sit in Parliament anyway.

(Joint Committee on Human Rights, ‘Letter from Nick Clegg to Hywel Francis’, 25 January 2011)

In terms of the ECHR, he added that:

Article 3 Protocol 1 of ECHR provides for a requirement to hold regular, free and fair elections, and the Strasbourg courts have taken this to include the individual’s right to vote. However, that right is not absolute and limitations may be imposed on it. The fact that Members of the House of Lords have a voice in Parliament makes it legitimate to deprive them of a right to have their voice also heard through their elected representative in the Commons.

(ibid)

2.2 Lords Spiritual

Bishops are not Peers of the Realm and sit in the House of Lords as Lords Spiritual. Consequently Bishops are able to vote at general elections. This right is not without controversy however. In 1983, the then Archbishop of Canterbury, Dr Robert Runcie, revealed he had voted in the general election that year. He said he was informed that he was able to and that he had voted as a private citizen (Times, ‘Runcie says he has every right to vote’, 13 June 1983, p 2). In answer to a question in the House of Lords following this admission, Lord Elton, for the Government, expressed caution about Bishops exercising this right, noting that “the question of whether Lords Spiritual can vote at parliamentary elections has never been expressly considered by the courts” (HL Hansard, 29 June 1983, cols 242–5).

In 2010, Lord Bach, the then Justice Minister, confirmed in an answer that “there is no bar to the Lords Spiritual voting in parliamentary elections” but said that he understood “it has long been the tradition that they do not do so”. He added however “there is no legal bar to the Lords Spiritual voting in a general election; it is very much a matter for them” (HL Hansard, 16 March 2010, col 558).

3. Recent Debates

The issue of Peers’ right to vote has been raised a number of times in recent years. In June 2007, Lord Dubs (Labour) asked whether the Government would introduce legislation to enable Members to vote at the next general election. Baroness Ashton of Upholland, the then Justice Minister, responded that the Government had no plans to do so. Responding to a supplementary question from Lord Dubs, she added that the Government did propose that Members of a reformed House would be able to vote (HL Hansard, 13 June 2007, col 1697).

In 2009 Lord Dubs asked again about the Government’s plans and suggested that it was a possibility that prisoners would get the vote before Peers. Lord Maclennan of Rogart (Liberal Democrat) asserted that Peers being unable to vote was an “individual wrong” and pointed out that Senators in the United States could vote for Congress. Responding, Lord Bach, the Justice Minister, said the Government believed that legislation concerning the House of Lords should not be “introduced in small packages” (HL Hansard, 23 February 2009, cols 2–4). In 2010 Viscount Tenby (Crossbench) raised the matter. He argued that any legislation would “command support on all sides of this House”. In contrast Lord Waddington (Conservative) argued that Peers did not need the vote as they represented themselves in Parliament, whereas Lord Acton (Labour) suggested the mantra “no taxation without representation” applied and that Peers should be given the vote. For the Government, Lord Bach responded that any proposal would have to be made in the context of the full reform of the second chamber (HL Hansard, 16 March 2010, cols 557–9).

During the passage of the House of Lords (Amendment) Bill in the 2010–12 session, introduced by Lord Steel of Aikwood (Liberal Democrat), Lord Dubs successfully moved an amendment to enable Peers to vote at elections to the House of Commons. He said:

I think we are the only Members of a second chamber in any democratic country in the world who do not have the right to vote in general elections. It seems to me that there is a point of principle here. Many of us campaign in elections. I have window bills up in my house, and yet I am not allowed to vote for reasons that have disappeared in the mists of history and which make no logical sense today. It would not be compulsory. Those Members of this House who feel that they should not vote would have the right not to go to the polling station, but people in history have died for the right to vote. It has been a fundamental principle in many countries in the world. I feel very deeply when I am not allowed to vote on election day, even though I take an active part in campaigning for the candidate or candidates of my choice. The proposition is very simple. It will not change anything fundamental but will give us the right on polling day to exercise a democratic right. For those people who say that we are in the legislature and therefore we have other chances, the point of voting is to choose or influence the Government of this country. That is the right that we do not have as Members of this legislature, unless we are given the right to vote.

(HL Hansard, 21 October 2011, col 503)

The (Crossbench) thought that there were two solutions: “We should either be given some powers over money Bills, which would be one answer or, alternatively, we should be given the right to vote” (ibid). Lord Cormack (Conservative) urged caution on moving too quickly on what he thought a “very important matter” (ibid, col 504). In response Lord Steel admitted to being “agnostic about the amendment” though “quite sympathetic to it”. He suggested that the amendment be withdrawn to enable him to talk to the Ministry of Justice and others about an amendment in his own name at report stage. Following further short debate Lord Steel accepted the amendment “on the understanding that we will have further discussions. If it is found to be objectionable, for some reason which we do not understand now, we could come back to it on report and take it out again” (ibid, col 505).

At report stage, Lord Trefgarne (Conservative) successfully moved an amendment to remove Lord Dubs’ clause. He argued:

For centuries it has been the case that Members of your Lordships’ House may not vote in parliamentary elections to the other place, and this provision in the Bill reverses that ancient principle. That is a mistake. We should retain the arrangement whereby we in this House do not vote for Members of the House of Commons.

(HL Hansard, 10 February 2012, col 536)

Lord Dubs explained he was disappointed with the proposed removal of the clause:

It seems wrong in principle that we are virtually the only people in the country who are not allowed to vote in general elections to influence what is to be the future Government of our country. That is a clear statement, and to reverse it would be a retrograde step. I cannot think of any argument in principle—beyond the fact that we have always done it this way—that justifies our not being able to vote in parliamentary elections. We can vote in European elections, local elections and referenda. After quite a long discussion, the House decided quite properly that that was a good move forward.

(ibid, col 537)

Lord Hunt of Kings Heath (Labour) intervened to raise two concerns:

I caution the House that there are wider implications. It is all very well some MPs saying, “I don’t see why you don’t have a vote”, but we need to see it in the context of wider reform. Secondly, if the House wants to get the Bill through the other place it needs to think whether this is likely to provoke wider debate in the other place. That is my fear. I entirely understand why my noble friend wants to pursue this, and of course he is open to do so, but we need to think about how we can get the Bill through in this session.

(ibid, col 538)

Lord Steel accepted Lord Trefgarne’s amendment and Lord Dubs’ clause was removed from the Bill. Lord Steel explained “it would perhaps be wiser to accept the amendment of the noble Lord, Lord Trefgarne, take the clause out now and keep the Bill as simple and as short as possible when it goes to the other place” (ibid, col 539).

4. Previous Debates

In 1853 Lord Campbell, the Lord Chief Justice, made a speech to the House of Lords that has been referred to in subsequent legal judgments. During a debate on allegations of corrupt practices at an election in Tynemouth, Lord Campbell explained that it was long-established that Peers were unable to vote. The (non-verbatim) Hansard record states:

The question was, whether a Peer had any right to vote for a representative in the Commons House of Parliament? He was clearly of opinion that a Peer had no such right or power. He placed no importance at all upon the Resolution of the House of Commons. That House could not make laws. It might declare what the law was; but it could not, by any Resolution it might pass, alter the constitution of the country; and the case of Lord Lieutenants showed that the Resolution against Peers, by itself, had no weight. But, irrespective of that Resolution—by immemorial usage, by authority, and by reason—he was clearly of opinion that not one of their Lordships who sat there by hereditary right, or by grant of the Crown, had any right to interfere in any election of a representative of the people. That was the House of Peers, the other was the Commons House of Parliament; and it was for the commons to send their representatives there to act for them, to grant the supplies, and to give their opinion upon Acts of Parliament and the general legislation of the country. Their Lordships legislated in that House by hereditary right; but, having that right, they should be contented with it, and not send forth a groundless claim to be represented in the other House.

(HL Hansard, 27 June 1853, col 791)

Lord Campbell returned to the issue in a speech in 1858. The Hansard record states:

It was not by Resolution of the House of Commons that Peers were prevented from voting for representatives in the House of Commons, but it had been an ancient, immemorial law of England that Peers sat in their own right in their own House, and had no privilege whatsoever to vote for Members to sit in the other House of Parliament. Since the Reform Bill passed Peers had frequently sought to register their votes for the election of Members of the House of Commons; but the revising barristers had invariably and most properly refused to allow them. Such Resolutions would be regarded as nonentities, and, whatever the consequences, he should, in his capacity as judge, direct a jury to give their verdict totally apart from such Resolutions.

(HL Hansard, 5 July 1858, col 928)

Despite this unequivocal statement from Lord Campbell that Peers could not vote at general elections, debates have taken place since about whether Peers should be able to vote, reflecting, to an extent, wider developments in the franchise and constitutional change.

In 1868 Benjamin Disraeli, during his first period as Prime Minister, was recorded as arguing that Peers should have this right. During a debate on the Electoral Petitions and Corrupt Practices at Elections Bill, he intervened to say he felt that Peers should no longer be disqualified from voting. The Hansard record states:

... The Members of that House were now taxed by the Votes of the House of Commons, and therefore he could not understand why a Peer of the Realm should not

have a right of voting for Members of Parliament and taking part just as another individual in the general business of a free country like this, with the view of protecting his property and guarding his own interests.

(HC Hansard, 14 July 1868, cols 1382–3)

In 1918 Lord Farrer unsuccessfully moved an amendment to the Representation of the People Bill that would have included Peers in the Bill’s proposed universal franchise. Viscount Peel, for the Government, argued that Peers “have certain special privileges, one of those being that they have the right to deal with measures in this House and that they form the second chamber of this Realm” (HL Hansard, 28 January 1918, cols 1180–1). Lord Peel urged Peers to consider whether it was wise to “press for this particular right to vote for Members of the other House, considering the, to some extent privileged, position which members of this House already enjoy” (ibid).

This position was repeated by Lord Hailsham, the Lord Chancellor, in 1936. Responding to a debate initiated by Lord Ponsonby of Shulbrede that proposed Peers should be able to vote and stand for the House of Commons, he argued that change was no longer needed because the more restrictive ban on Peers attempting to influence elections had been lifted in 1909. He maintained that “as long as we retain the power to speak at Elections to try and persuade our fellow citizens which way to exercise their votes, no one can imagine it matters the least in the world whether we have a right to put a cross on a ballot paper or not” (HL Hansard, 12 February 1936, cols 569–70).

During committee on the Life Peerages Bill in 1957, the House of Lords discussed Peers voting in general elections. Some of the anomalies this created were raised. The Earl of Mansfield asked about the position of Scottish Peers, who were unable to vote at parliamentary elections whether a Member of the House of Lords or not. The pointed out that Peeresses in their own right were in a similar position. noted that in contrast Irish Peers could vote if they were Members of the House of Commons and could remain able to if they were on the electoral roll thereafter. Responding for the Government, Viscount Kilmuir, the Lord Chancellor, said that these issues were “anomalies which ought to be looked at”, and told Peers that he would “convey to my right honourable friend the Home Secretary that they require looking at when another opportunity arises” (HL Hansard, 17 December 1957, cols 1255–61). The Peerages Act passed in 1963 provided that those Peers not eligible to sit in the House of Lords could vote at parliamentary elections, subject to qualifications.

In 1968 Lord Rathcavan asked the Government why Peers were disqualified from voting. Lord Shackleton, the Leader of the House, replied:

... it is difficult to answer the question, “Why?”, but I might help the noble Lord if I say that Members of this House are disqualified from voting at Elections for Members of the House of Commons by the Common Law of Parliament. The question was conclusively decided in the Court of Common Pleas in 1872 in the case of Earl Beauchamp v. Overseers of Madresfield. The Court’s decision did not make new law but was a restatement of what is described as the “ancient, immemorial law of England”. The ratio decidendi of the Court has recently been re-argued and reaffirmed in the Election Court in the case of the Parliamentary Election in Bristol, South-East, 1961, and is based on the doctrines of constitutional law which are most authoritatively stated by Coke in his Institutes Part IV: ‘And the King and these three estates are the great corporation or body politic of the Kingdom and do sit in two houses, viz. the King and Lords in one

House called the lords’ house and the knights, citizens and burgesses in another house called the house of commons… And whosoever is not a lord of parliament and of the lords’ house is of the house of the commons either in person, or by representation, partly coagmentative, and partly representative’.

(HL Hansard, 24 July 1968, col 1039)

In a contribution to the debate on the Queen’s Speech later that year, Lord Rathcavan returned to the issue, suggesting that the ruling in the 1872 case was no longer appropriate. Since that year “the position has been completely transformed”. He argued:

Millions of voters have been put on the register. Women have been given votes. We have now in effect universal suffrage. And all this has been done by Act of Parliament. Yet Peers alone have been given no redress and still remain classed with aliens and lunatics as being unfit to vote. The Act of Parliament which would have put this right has never been passed, and I submit that it should have been passed long ago.

(HL Hansard, 31 October 1968, cols 86–7)

The next month the Government published its White Paper, which contained proposals providing Peers with the right to vote at parliamentary elections following reform of the House (House of Lords Reform, November 1968, Cmnd 3799, p 26, para 68). Clause 16 of the subsequent Parliament (No. 2) Bill (HC 62 of session 1968–69)—introduced by the Government in 1969—contained this provision, though the Bill was later dropped by the Government.

Questions were raised in the House of Lords at various points during the 1970s. In 1971 told the House the then Conservative Government had no plans to legislate on the matter (HL Hansard, 17 March 1971, cols 435–6). In 1973, when asked again, Lord Jellicoe said that it was “an anachronism and I, personally, would be far from unsympathetic to its removal”. He added though that “probably the right time and place for that might be one day in the context of the reform of your Lordships’ House” (HL Hansard, 16 April 1973 cols 899–902). In 1974 Lord Shepherd informed the House that the new Labour Government was sympathetic “but any legislation on the matter will have to await its opportunity” (HL Hansard, 20 March 1974, col 229). At questions the following year Lord Harris of Greenwich, the Home Office Minister, confirmed “the Government feel that the law should be changed when the opportunity occurs, so far as possible in parliamentary election constituencies” (HL Hansard, 11 March 1975, cols 135–7).

During committee stage on the Representation of the People Bill in the House of Lords in 1985, Lord Bethell (Conservative) tabled an amendment to insert the new clause: “A Peer is entitled to vote at elections to the House of Commons”. He said that despite appreciating the history of the disqualification, he was “at a loss to understand” why Peers were still unable to vote in parliamentary elections:

We have the right, and indeed the very great privilege, of being able to take part in parliamentary debates, to take part in passing legislation, to amend legislation—as, indeed, some of us did a few moments ago—and to influence the Government of the day. But we do not, any of us, have the right to choose the Government of the day or to play a part in choosing the Government of the day. We are debarred from any voice

in deciding who should be the Government, who should be the Prime Minister and who should be the Members of the more powerful of the two Houses of Parliament.

(HL Hansard, 28 March 1985, col 1205)

For the Government, Lord Glenarthur said that he did not feel that Peers need to elect representatives “because we can speak here. We can make our feelings known and we often do”. He added that the issue though was not suitable for discussion in the Bill (ibid, col 1207). Lord Bethell withdrew the amendment.

The issue was debated again in 1999 during the passage of the House of Lords Bill. The Bill contained provisions to enable hereditary Peers removed from membership of the House of Lords to vote in parliamentary elections. Geoff Hoon, Minister of State at the Lord Chancellor’s Department, told the House of Commons during committee stage on the Bill that legislation was required to provide those Peers with this right. He said:

Some of the disadvantages, as well as the privileges, of peerage are tied to membership of the House of Lords. The excusing by right of Peers from jury service, for example, is a statutory bar arising from their membership of the House. That will lapse with their loss of membership of the House of Lords.

It was confirmed, however, in the case fought by my right hon Friend the Member for Chesterfield [Tony Benn], as he reminded us on second reading, that some of the attributes of peerage are found in the blood. The status of not being a commoner, and being therefore ineligible to have any direct connection with the House of Commons, is one of them, so it is necessary to overturn, by statute, peers’ inability to vote, stand or sit. The rights will not flow automatically from the loss of membership of the House of Lords.

(HC Hansard, 3 March 1999, col 1084)