The Lord Wallace of Saltaire (M 79)
MANAGING RELATIONS
BETWEEN THE
TWO CHAMBERS
1. The management of relations between the
two Houses through the legislation process is one of the least
"modern" aspects of Westminster business. Where the
two Houses disagree, clerks pass across the Central Lobby with
messages, with negotiations behind the scenes along "the
usual channels" which do not bring in all relevant parties;
the 180 crossbench Members of the Lords, in particular, are left
outside such informal contacts, even though their votes may be
a significant factor in reaching a compromise. In any future reform
of the second chamber it seems likely that a significant non-party
element, perhaps 20% of the total, will be retained. If the remaining
80% were to be elected on a different franchise from the Commons,
it is also likely that several parties would be represented—there
are representatives of six parties among the Members of the European
Parliament elected from mainland Britain—and that no single
party would command a majority of its members. Accepting that
the primacy of the Commons will be maintained in any reform of
the second Chamber, the revising chamber will nevertheless wish
from time to time to insist on amendments to Bills. Negotiation
between the two Houses will therefore be necessary, through one
channel or another.
2. "Ping-Pong" is a process without
agreed rules. Until recently, a Labour Government with a majority
in the Commons has felt able to argue that in cases of disagreement
the unelected and unrepresentative chamber should give way to
the elected chamber, without compromise. The removal of hereditary
peers (except for the limited number whose service has been extended
until the conclusion of the process of reform) has weakened that
argument. Second-stage reform that provided for a majority-elected
second chamber would undermine it further. In practice, since
1999, the Lords has felt able to insist on its amendments when—as
on constitutional and civil liberties issues—it has felt
that matters of principle are at stake, or when it has felt emboldened
by evidence of substantial discontent with the government's position
from its own backbenches as well as from other parties in the
Commons. When the two Houses disagree in mid-session, without
undue time pressure for completion of a bill, exchanges between
them may take place over several weeks at a dignified pace, with
time for informal discussions between each exchange. When there
is time pressure on a bill, as with the Prevention of Terrorism
Bill in March 2005, exchanges may end in an overnight sitting,
or longer—in that case a sitting that started on Thursday
morning, and ended at 7.00 pm on Friday. When agreement has not
been reached at the end of a session, or more acutely when government
disrupts the normal pace of parliamentary business by calling
an election, hurried negotiations take place in ministers' or
whips' offices; bargains are struck behind closed doors which
may, or may not, be reported back to the wider membership of either
House. The Commons currently considers Lords amendments on the
floor, rather than referring them to a committee of the House
(most appropriately, to the committee that had scrutinised the
bill in the Commons). The report of the Select Committee on Modernisation
of July 1997 (para.53) estimated that consideration of Lords amendments
consumed `considerable but variable amounts of time (typically
5-10% of all time taken on legislation)'.
3. Westminster procedures have not always been
so ill-defined. In the 17th and 18th centuries conference committees
of the two Houses were an accepted part of parliamentary practice.
"Ordinary" conferences of the Lords and Commons exchanged
messages between the two Houses; "free" conferences
brought together "managers" appointed by each to consider
the reasons for differing on amendments to bills. Business in
each House was apparently suspended during such conferences, while
negotiations took place on mutually acceptable language. These
committees went out of use in the second half of the 19th century,
presumably because of the growing tensions between the two Houses,
the struggle over precedence, and the competing claims to represent
"the nation" (Lord Salisbury) and "the people"
(Gladstone, and many others in the Commons). Repeated confrontation
between the two chambers, whenever elections returned a non-Conservative
majority to the House of Commons, made reasoned negotiation difficult,
and left contested the basis on which any such negotiations should
take place. The Salisbury-Addison Convention covered situations
in which the Lords would give way to the Commons on bills, in
spite of the views of the majority of its members. It did not
cover situations in which the second chamber might make reasoned
amendments to a government bill, and claim on grounds of ambiguities
in the bill as presented, expert consensus on its implications,
public opinion, or constitutional propriety that its amendments
should be treated by the elected chamber as having some merit.
4. Some form of conference committee is a widely-accepted
mechanism in other two-chamber parliaments. The example of the
US Congress is not entirely relevant, since in Washington the
Senate actively disputes primacy with the House. But in France,
where there is no question of the relationship between the first
and second chambers, as well as in Australia, Japan, Germany and
South Africa, various forms of conference committees operate,
with various procedures in case of prolonged disagreement. The
role of such committees is to consider the issues on which the
two Houses disagree, often after a bill has been exchanged twice
or more between the two chambers, and if possible to negotiate
an agreed compromise.
5. A conference committee for Westminster would
not require major changes in other existing rules and conventions.
A committee could, for example, be convened when a bill has passed
between the two chambers twice without reaching agreement. It
would, appropriately, be constituted on a different basis for
each bill, bringing together the party managers and most active
members from both Houses on that bill, with a membership reflecting
the balance of opinion in both Houses. Such a committee could
not, of course, guarantee to reach agreement. In the event of
failure, the bill could be returned for a further vote in both
Houses, and in the last resort be subject to the provisions of
the Parliament Act—the constitutional sanction that ensures
that in the last resort the first chamber retains primacy. What
such a committee would achieve would be to end the undignified
spectacle of overnight Westminster sittings, and also reduce the
confused scramble at the end of each session and parliament. It
would help to establish a greater sense of partnership between
the two Houses, to replace the confrontations that have marked
the unsettled relationship between the two Houses since the Commons
first asserted its primacy.
6. Existing practice in other constitutional
democracies suggest a number of possible variations on this proposal.
Since a reformed second chamber is likely to have a smaller membership
than the Commons, for example, the case for a larger Commons representation
than from the second chamber might be persuasive; though the desirability
of including representatives of diverse groups and opinions in
the second chamber, including the cross-benchers, might suggest
an equal number from each House. Exchanges between the two Houses
might extend to three attempts to vote first on proposed amendments
before proceeding to a conference committee, as in France. A conference
committee might have a continuing core membership of business
managers from both Houses, with those most concerned with a specific
bill joining them for negotiations on that; or the committee might
be reconstituted for each negotiation from those concerned to
manage the bill in both Houses, together with those most concerned
with pressing amendments. If the principle of such a committee
were agreed, there would be room for some experimentation in composition
and reporting back to both Houses, over one or more trial periods.
7. There might be some concern within the Commons
that any move to return to a conference, or conciliation committee,
between the two Houses would be to threaten the primacy of the
Commons, by acknowledging the legitimate claim of the second chamber
to amend legislation. If, however, there is to be a second chamber
with a revising function, it has to have power to insist that
the Commons reconsider some aspects of legislation. The primacy
of the Commons is guaranteed by the convention that the second
chamber does not vote down bills on second reading, nor deny them
a third reading—leaving the Lords with the power to amend,
but not to deny, legislation. The primacy of the Commons is reinforced
by the convention that the Lords plays no role in "Supply",
thus leaving to the Commons alone the very broad field of taxation
and spending. The Parliament Act operates as a "back-stop"
to these conventions, guaranteeing that in the last resort the
first chamber will prevail.
8. In recent years the Lords has come to play
an increasingly prominent part in examining the details of complex
legislation. A number of bills have been sent to the Lords with
substantial sections left unexamined in Commons committees, due
to strict timetabling; as a matter of practice the Lords continues
to work through the entire text of bills in committee. Some complex
and technical bills, as for example on Charities and on Company
Law, have started in the Lords, in order to test out—and
amend—detailed clauses before they reach the Commons. Lords
committees go into further detail in their examination of statutory
instruments (and European Union proposals), undertaking technical
scrutiny that is beyond the scope of the more political prime
chamber. The Lords thus acts as a secondary legislator—a
revising chamber, not blocking government legislation, but subjecting
it to careful scrutiny. A conference committee would contribute
towards a more effective legislative process, without challenging
the primacy of the Commons.
June 2006
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