242 General Principles of Constitutional and Administrative Law

questions of constitutional reform. The Commission did not there-

fore question the role and powers of the House of Commons nor those

of the executive. Wakeham endorsed the existing roles of the House of

Lords, as subordinate to the Commons, as providing limited checks

on the executive, a revising mechanism for legislation and a ‘constitu-

tional long-stop’ to persuade the government to have second thoughts.

Wakeham‘s governing principles seems to be ‘the capacity to offer

council from a range of sources, . . . broadly representative of society in

the UK at the beginning of the 21st century. . . . It should give the

UK’s constituent nations and regions, for the first time a formally

constituted voice in the Westminster parliament.’ (Wakeham, 2000,

p. 31): The electorate is not to be trusted to produce these outcomes

but must be paternalistically protected against itself.

Wakeham rejected the extremes of an all-elected second chamber and

one comprising ‘experts’, the former because of the risk of unbalanc-

ing the relationship with the Commons, the latter because Wakeham

recognised that government is about accommodating disagreement and

is necessarily political rather than a ‘council of the wise’. Perhaps

updating the classical ‘mixed constitution’ Wakeham therefore prop-

osed a House comprising representatives from the main interests in the

community. Wakeham though that a wholly elected second chamber

might produce the wrong sort of people, reinforce party political

control, result in ‘voter fatigue’ and either conflict with or rubber-

stamp the Commons. Wakeham rejected random selection because of

the risk of attracting undesirables.

The government White Paper (7 Nov. 2001, Cm. 5291) broadly

adopted Wakeham’s proposals but weakened them in favour of a

larger element of government control over the House of Lords. The

government’s proposals are as follows:

1. The second chamber should comprise about 600 members with 120

of them being elected in regional constituencies based on those for

the European Parliament under the closed party list system (below).

The link with the peerage should be entirely removed. Wakeham had

recommended that elections should be on a 12–15-year cycle with

one-third elected each time thus ensuring continuity and strengthen-

ing independence. This recommendation was not followed.

2. An appointments commission appointed by the House itself and

comprising a mix of politicians and others should appoint another

120 members on the basis of applications from the public. Wakeham

had proposed that the Commission appoint all other members.

The aims of making appointments should be: i) representation of

243

The Composition of Parliament and Parliamentary Elections

all parts of British society with a minimum of 30% of each gender

and representation of ethnic groups in proportion to the presence in

the general population; ii) a breadth of experience and range of

skills; iii) a strong independent element.

3. The Law Lords should remain as now.

4. The Church of England bishops should remain but their numbers

reduced to 20. Wakeham had proposed representatives from other

religions.

5. The remainder of the House should be nominated by political

parties in accordance with their share of the vote at the last election

as determined by the Commission. While no one party will have an

overall majority the government will have the largest single voice

particularly as the element chosen by the Commission itself may

well include a preponderance of individuals whose careers have

been advanced by sycophancy to those in power.

6. Existing life peers should remain thereby unbalancing these

arrangements for many years.

7. The government has not decided the important question of whether

members should be full-time salaried or part-time unpaid. Under

the system of patronage proposed, both are likely to attract un-

desirables. Nor is it clear how long the appointed members would

serve. If this is a short period the dominance of the government of

the day is strengthened. On the other hand, in the case of party

placemen, a long period would be unrepresentive.

The proposals are therefore a pragmatic accommodation, informed

by a desire to maintain the traditional constitution and preserve the

supremacy of the government. The democratic argument for this is the

need for clear accountability. On the other hand the proposals risk

producing a two-tier House with the minority of elected members

having a superior status and the appointees being treated with con-

tempt. There is also a problem in ensuring that the political appointees

reflect the changing balance of party support after each general elec-

tion. The government’s proposals allow considerable patronage and

for that reason have been almost universally condemned. There is a

strong body of opinion in favour of a largely elected chamber.

11.3 Membership of the House of Commons

Anyone can be a member of the House of Commons other than the

following:

244 General Principles of Constitutional and Administrative Law

. aliens other than citizens of Ireland;

. people under 21 (Family Law Reform Act 1969 Schedule 2 para. 2);

. mental patients (Mental Health Act 1983) – there are provisions for

removing MPs under the Mental Health Act 1983;

. members of the House of Lords;

. clergy ordained by bishops in the Churches of England and Ireland,

ministers of the Church of Scotland and Roman Catholic priests

(see Re MacManaway (1951));

. debtors made bankrupt, until five years after discharge unless the dis-

charge certifies that the bankruptcy was not caused by the debtor’s

misconduct;

. persons convicted of election offences (below);

. persons convicted of treason, until expiry of the sentence or pardon

(Forfeiture Act 1870);

. persons convicted of an offence and sentenced to prison for more

than one year while actually in prison or unlawfully at large (Repre-

sentation of the People Act 1981) – this was designed to prevent

convicted terrorists in Northern Ireland from standing;

. persons holding certain public offices (House of Commons (Dis-

qualification) Act 1975).

The last of these disqualifications is an example of the separation

of powers. One element of the seventeenth-century conflict between

Crown and Parliament was the fear of the Commons that the Crown

might bribe members by giving them jobs. The Act of Settlement 1700

therefore provided that nobody who held Crown office or place of

profit could sit in the Commons. This would of course have pre-