Select Committee on Public Administration Fifth Report

PART TWO: OUR PROPOSALS

Role, functions and powers

WHITE PAPER PROPOSALS

The Role of the House of Lords

* The Lords' most important function will continue to be as a revising chamber for legislation (White Paper, para 21)

* It also has a role in holding Ministers to account, and in debating public issues (paras 20, 22)

* Ministers should continue to be appointed from the Lords in broadly their present numbers (para 23)

* There is no case for giving specific new functions to the House of Lords (para 24).

The powers of the House of Lords

* There is no need to change the statutory basis of the second chamber's powers in relation to primary legislation (para 30)

* The House of Lords should lose its power of veto in relation to subordinate legislation, instead gaining a power to delay a Statutory Instrument for up to 3 months (paras 31­32).

* The current life peers should remain for life, but with provision to retire (para 95).[42]

69. There is no proposal for any major change to the role and functions of the House of Lords. This is one of the fundamentals on which there is broad agreement, and it is one of the firm foundations on which reform must build. The second chamber will continue to be predominantly a revising chamber (the current House spends around 60 per cent of its time revising legislation). Its other main functions are holding the Government to account, and debating political issues, in particular long term or technically complex matters which have been given insufficient time in the House of Commons. The Government wishes to strengthen the capacity of the Lords to perform these functions, but proposes no change in the functions themselves.

70. We agree with the Government that no major change is required to the role or functions of the second chamber. It should continue to be a revising, scrutinising and deliberative assembly. But its performance of all these functions can and should be strengthened.

71. In proposing no change in this respect the Government was following the recommendations of the Royal Commission. But the Royal Commission did raise two issues about the future role of the Upper House: whether it should be a constitutional longstop, and whether it should exercise a guardianship role over the devolution settlement.

A constitutional longstop

72. The Royal Commission stated that 'One of the most important functions of the reformed second chamber should be to act as a "constitutional long-stop"'.[43] However, it did not propose that the upper house be given significant new constitutional powers. Instead it would exercise its constitutional watchdog role primarily through a new set of scrutiny committees, on the constitution, devolution, human rights, and treaties.

73. However, the Royal Commission did propose that the Upper House be given one additional constitutional power: a veto over future proposals which would change its own powers as defined by the Parliament Acts. This recommendation has been rejected by the government. It may be appropriate to revisit this issue later.

74. We do not believe that there should be a veto by the second chamber on any future proposal by the House of Commons to amend the Parliament Acts. However, as part of the new constitutional settlement there would be benefits in building stronger mechanisms to protect the constitution. One objection which is often advanced is that, in the absence of a written constitution, it is more difficult in the UK to define what is a constitutional amendment. Against this it was suggested to the Royal Commission, and in evidence to us, that the Speaker of the House of Commons might designate constitutional bills (as 'money' bills are designated now); if the Upper House did not approve any such bills, the government would have the option to refer their terms to a referendum. Alternatively the Upper House itself might be responsible for identifying constitutional bills, and be entitled to require a referendum on constitutional changes which it considered undesirable or needing the extra legitimacy which a referendum can provide. A further possibility is for special majorities of one or both Houses to be required for major constitutional change.

75. We are content for any proposal in this area to rest with the new House of Lords Committee on the Constitution, established in February 2001 in response to the Royal Commission recommendations. It is chaired by Lord Norton of Louth, who gave evidence to our inquiry. The Constitution Committee's first substantive inquiry has been into the process of constitutional change, and it has been exploring just these issues: how to identify constitutional bills, and whether they should be subject to special safeguards.[44] The Constitution Committee has the potential to grow into a constitutional longstop, rather as the House of Lords Delegated Powers and Regulatory Reform Committee has become in the narrow (but important) task of policing the dividing line between primary and secondary legislation. The Government has never gone against a recommendation of the Delegated Powers Committee. We look forward to the Constitution Committee establishing a similar authority.

Links with devolution

76. The supporting documents to the White Paper say that:

"¼in the present state of the (devolution) settlement, it would not be right to ask the House of Lords to develop a special relationship with the devolved institutions... ".[45]

The second chamber could be extremely valuable in strengthening the ties between the devolved institutions and Westminster. In his evidence to us the Leader of the House suggested that there might be attractions in indirect election by the devolved assemblies as one 'entry route'[46] to the second chamber, which would bring us closer to the model for second chambers which exists in much of Europe. Indirect election was rejected by the Royal Commission, but in part because they found no demand at that early stage of devolution from amongst the devolved institutions. Views may since have changed, and this is an issue which we hope the House of Lords Constitution Committee might explore in its second inquiry, just starting, which is to be concerned with inter-institutional relations in the newly devolved UK.

Powers over secondary legislation

77. Following a recommendation of the Royal Commission, the Government propose that the House of Lords should lose its power of veto in relation to subordinate legislation, instead gaining a power to delay a Statutory Instrument for up to three months. Many of those who spoke in the parliamentary debates were against this recommendation, as were some of the witnesses who gave evidence to us.[47] Lord Wakeham himself has had second thoughts about it.[48]

78. The critics question whether the proposed reduction in powers would really "increase the influence of the Lords in relation to secondary legislation"[49] as the White Paper claims. The three months would only elapse before the relevant Statutory Instrument came into operation if the Commons did nothing. As soon as the Commons voted to reject the Lords' objections, the SI would immediately come into effect. The Government's critics say that it is misleading to describe this as a three-month delaying power; the delay could be as short as 24 hours.

79. We believe that the Government should think again. The landscape has changed since the Royal Commission reported. For many years the assumption had been that the Lords would not reject statutory instruments; the House had not used its power to do so since 1968. However in 2000 the House rejected such an order reflecting support for free mailshots for the London mayoral election of that year.[50] This demonstrated that the second chamber was now prepared to use its veto power in appropriate cases. We believe that it should not lose that valuable right. If the Government does proceed with this proposal, then there should be a fixed minimum delay of three months and a requirement that the Commons would have to reconfirm its previous decision in each case.

80. We do not believe the Government has made its case for reducing the Lords' powers over subordinate legislation. The preponderance of evidence is in favour of the chamber retaining its existing powers. The existing power of veto should remain.

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42   Cmd 5291 Back

43   Cmd 4534 2000 Recommendation 15 Back

44   HL 79 2002 Back

45   'Completing the Reforms' Support Documents, December 2001, Chapter 3, para 19  Back

46   HC 494-ii, Q198 Back

47   HC 494-i, Q69, Q116 Back

48   Lord Wakeham, Constitution Unit/Hansard Society seminar, 22 January 2002 Back

49   Cmd 5291 para 33 Back

50   Greater London Authority Expenses Order 2000 Back

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Prepared 14 February 2002