During the debate on 10 December in the House of Lords on the Commonwealth's shared goals in democracy and development Baroness Gardner of Parkes asked about eligibility of Commonwealth and Republic of Ireland citizens for membership of the House of Lords. The Government undertook to set out the background to the issue in more detail and to legislate before the end of the current Session of Parliament to remove any uncertainty. The Government’s firm view is that nothing in the current circumstances prevents any Member of the House of Lords from membership or from taking a full part in the proceedings of the House.

It was suggested to the Government in April 2009 by the House authorities that the drafting of the Electoral Administration Act 2006 (the 2006 Act), and modifications made by that Act to Section 3 of the Act of Settlement 1701, could be interpreted to have inadvertently cast doubt on whether Commonwealth and Republic of Ireland citizens are eligible for membership of the House of Lords and to hold certain offices under the Crown.

The Government have been examining possible interpretations of the changes made by the 2006 Act carefully. Although one possible interpretation would have the effect which has caused concern, this was clearly not the intention of Parliament when passing the 2006 Act, and the Government would disagree with any suggestion that changes should be made in the way that eligibility is regarded.

The relevant provisions are complex. Section 18 of the 2006 Act included provisions about eligibility for membership of the House of Commons, which were intended to ensure that only persons with indefinite leave to remain in the UK are eligible to be Members of the House of Commons. The Act also extended this provision to elections to the European Parliament, the Greater London Authority, local authorities, and the devolved legislatures. The provision was enacted in response to concerns that elected representatives should be able to serve their term of office in full in the UK. The provision was commenced on 1 January 2007.

Section 18(7) of the 2006 Act repealed the first entry in Schedule 7 to the British Nationality Act 1981. That entry had modified the application of Section 3 of the Act of Settlement which concerns eligibility for membership of both Houses of Parliament, the Privy Council and certain offices under the Crown by disapplying part of it in relation to Commonwealth and Republic of Ireland citizens, allowing such citizens to be Members of either House and to hold offices under the Crown.

This change was made in consequence of the provision at Section 18(1) of the Electoral Administration Act 2006, which substituted a new modification of Section 3 of the Act of Settlement that applies only for the purposes of membership of the House of Commons: under its terms, Commonwealth citizens who do not have indefinite leave to remain in the UK are prevented from being members of the House of Commons. However, since the drafting of the legislation did not contain provisions expressly saving the first entry in Schedule 7 to the British Nationality Act 1981 in relation to membership of the House of Lords and other offices under the Crown, a question has been raised about whether the eligibility of Commonwealth or Republic of Ireland citizens for membership of the House of Lords and other positions is affected.

Though it clearly was not the intention of Parliament in passing the 2006 Act to change the entitlement of Commonwealth and Republic of Ireland citizens to sit in the House of Lords, Ministers have concluded that it is best to put the issue beyond any doubt. Accordingly we will introduce appropriate legislation before the end of the current Session of Parliament to remove any uncertainty on this issue. An amendment will be tabled to the Constitutional Reform and Governance Bill, currently before the House of Commons, to achieve this.