Lessons from the process of government formation after the 2010 general election - Political and Constitutional Reform Committee Contents

Written evidence submitted by Baroness Royall of Blaisdon, Leader of the Opposition, House of Lords

  1.  The Salisbury-Addison Convention is, broadly, the means by which the elected government of the day secures, in general terms, and subject to amendments passed during the legislative process, its legislative programme as set out for the electorate in the general election manifesto of the political party which forms the government.

  2.  Since the convention was developed in the late 1880s, the Convention has been subject to discussion and definition. Perhaps the most authoritative recent delineation of the convention was set out in the Joint Committee on Conventions, chaired by Lord Cunningham of Felling, as follows (HL Paper 265-I Para 99):

    "99.  The Convention which has evolved is that: In the House of Lords: A manifesto Bill is accorded a Second Reading;

    A manifesto Bill is not subject to `wrecking amendments' which change the Government's manifesto intention as proposed in the Bill; and

    A manifesto Bill is passed and sent (or returned) to the House of Commons, so that they have the opportunity, in reasonable time, to consider the Bill or any amendments the Lords may wish to propose."

  We broadly accept and agree with this delineation.

  3.  The Joint Committee also noted the attempts over time to define what constitutes a manifesto Bill, and we note its decision (Para 113) not to recommend that such a definition be attempted.

  4.  The Joint Committee also noted that any further material reform would call into question the current conventions of the House—which would in our view include the Salisbury-Addison convention (Para 9.2):

    "If the Lords acquired an electoral mandate, then in our view their role as the revising chamber, and their relationship with the Commons, would inevitably be called into question, codified or not. Given the weight of evidence on this point, should any firm proposals come forward to change the composition of the House of Lords, the conventions between the Houses would have to be examined again."

  5.  We strongly agree with this conclusion of the all-party joint committee of both Houses of Parliament. We believe that the proposals for further reform of the House of Lords which are currently being considered by the coalition government with the intent of bringing forward shortly a Bill to reform the Lords should indeed prompt a further examination of the conventions between the Houses. We believe that the best means of this examination would be a Joint Committee of both Houses.

  6.  Our principal reason for supporting this proposal, and its application now, is that we believe that the establishment a wholly—or partially-elected House of Lords would put the conventions between both Houses immediately into play. Indeed, we believe that the advent of a wholly—or partially-elected House would very quickly see the current conventions between the two Houses disappearing.

  7.  This process would certainly include—indeed, it would centre upon—the Salisbury-Addison Convention. So our first contention in relation to the Convention as it currently stands is that if the coalition government is successful in bringing about further reform of the House of Lords, then the Salisbury-Addison convention, unless re-addressed as proposed by the Joint Committee, might well have relatively little future.

  8.  Unless or until such reform is secured by the coalition government, though, the question of the Salisbury-Addison Convention remains. Our view too, though, is that the formation of the coalition government is already fundamentally changing the nature and operation of the House of Lords, and the relationship of the House of Lords to the House of Commons.

  9.  While not completely operating as a full convention, it is unquestionably the practice and indeed the explicit policy in relation to the House of Lords over many recent years that no-one political party should have an overall majority. Without this practice, the House of Lords cannot properly carry out its major function—to act as a revising chamber, with the clear and correct role of scrutinising, amending and improving legislation.

  10.  The balance of the composition of the House of Lords prior to the 2010 election broadly supported this practice. In nominal terms, Labour held 30% of the total House of Lords votes, the Conservative Party 26%, the Crossbenches 26% and the Liberal Democrats 10%. This has led to a House which, though unelected, in effect was equivalent to a parliamentary chamber which, looking at experience around the world, had been elected on a proportional basis. No single party had a majority. To get legislation through, a governing party had to win the agreement with one or another groups in the Lords. Not agreement by politics, but agreement on the issues concerned. So issues proceeded by consensus. Legislation was subject to proper scrutiny, amendment and improvement. The House was both able to carry out its principal function, as a revising chamber, and did so.

  11.  The advent of the coalition has fundamentally altered this balance, and so threatening the core role of the House. The two parties in the coalition in the Lords now have a nominal combined membership of 272, compared to 234 for Labour alone. While actual votes on individual days may of course differ from these totals, it is clear that the coalition now has a permanent, inbuilt majority in the Lords over Labour, with which it can push through its legislation.

  12.  We as an Opposition have so far managed to secure some victories in the division lobbies through presenting our case successfully to individual peers beyond our party. We will continue to adopt and pursue this strategy wherever possible. But we believe that the advent and operation of the coalition in the Lords is placing the role of the House of Lords as revising chamber beyond the reach of the House. We strongly believe that the coalition must not, and must not be allowed to, us its majority in the House of Lords to thwart this role, and to turn the House of Lords into a rubber stamp for the House of Commons.

  13.  We believe that both these issues—the impact of further reform in the House, and the impact of the advent of the coalition—are highly significant not only in themselves, but as the governing context for consideration of the operation now of the Salisbury-Addison Convention.

  14.  The coalition government seeks to argue that the establishment of their government does not affect the Salisbury convention. Indeed, Lord Strathclyde, the coalition government's Conservative Leader of the House in the Lords has said that Labour in the Lords "will need to remember, as we always did in opposition, that the unelected House must not challenge the clear mandate of the elected one." (House Magazine, No 1358 Vol 36 Oct 4, 2010)

  15.  This has not always been the view of the senior members of the coalition government in the Lords. Lord Strathclyde, in a lecture given in 1999 as Leader of the Opposition in the Lords, entitled Redefining the Boundaries between the Two Houses, argued that most of the conditions that gave rise to the Salisbury doctrine had gone, saying: "Some might therefore conclude that the doctrine itself, as originally conceived, has outlived its usefulness. I would be less dogmatic. Certainly it needs to be re-examined in the new conditions that arise." While he argued for the primacy of the elected House, he also said of the House of Lords: "But, equally, it should always insist on its right to scrutinise, amend and improve legislation."

  16.  His deputy in the Lords, and the Leader in the Lords of the Liberal Democrats, Lord McNally, argued in 2005 that the design of the Salisbury Convention was even by then no longer appropriate: "The Salisbury convention", Lord McNally, the leader of the Liberal Democrats in the Lords, argued in a debate in the Lords on 26 January 2005, "was designed to protect the non-Conservative government from being blocked by a built-in hereditary-based majority in the Lords. It was not designed to provide more power for what the late Lord Hailsham rightly warned was an elective dictatorship in another place against legitimate check and balance by this second Chamber." (HoL Hansard 26 Jan 2005 Vol 668 Col 371). In a later debate Lord McNally went on to say : "I do not believe that a convention drawn up 60 years ago on relations between a wholly hereditary Conservative-dominated House and a Labour Government who had 48% of the vote should apply in the same way to the position in which we find ourselves today." (HoL Hansard 17 May 2005 Vol 672 Col 20). Lord McNally has also in the past described the "traditional plea to the Salisbury convention" as "the last refuge of legislative scoundrels" (Cited in "Parliament", by Philip Cowley, in Blair's Britain ed. Anthony Seldon CUP 2007)

  17.  Lord Strathclyde's formulation, "that the unelected House must not challenge the clear mandate of the elected one" is a reasonable shorthand version of the Salisbury Convention. But it fundamentally rests on the concept of a "clear mandate". A clear mandate is given when a political party presents its proposed platform and programme to the electorate, ahead of a general election. The most usual form of this in the party's general election manifesto. From this stem individual policies and proposals, including individual proposals for legislation. From this in turn comes the concept, utilised in the Joint Committee's delineation of the Salisbury convention, of a "manifesto Bill". While the Joint Committee was understandably chary about trying to define a manifesto Bill, it is axiomatic from the term that the idea behind the Bill must have been contained in the election manifesto from a political party seeking to be elected to government and subsequently being elected to government.

  18.  This brings us to the first of the substantive points on the Salisbury convention we would wish to make in relation to the current coalition government. Both the parties which were likely to be able to form a government on their own, the Labour Party and the Conservative Party, presented manifestoes to the electorate as part of their general election campaign in 2010. So too did the Liberal Democrats, though every piece of polling evidence and electoral history over the past 100 years suggested that the party would be unlikely to be able to form a government on their own. One of the effects of the television debates which were such a prominent, notable and novel feature of the 2010 general election campaign was to put aside these key differences between the three main parties and in effect to present the three parties as equivalent, with the policies and the proposals of all three parties being given broadly equal time and consideration.

  19.  In one respect, the outcome of the election was starkly clear. Our party, the Labour party, lost. We were in government. We are no longer in government. However difficult for us as a party, that is a clear outcome.

  20.  But no other outcomes of the election were as clear. Neither the Conservative Party nor the Liberal Democrats secured enough seats to form a government. Neither the Conservative Party nor the Liberal Democrats received a mandate from the electorate to put their manifestoes into practice.

  21.  Post-election discussions and negotiations between the two parties led to the formation of a coalition government. But the coalition government was precisely a post-election formation. The coalition government could not and did not have a pre-election manifesto which set out its policies and programme. Leaving aside the product of any post-election discussions, what the two parties had which had been presented to the electorate were their two separate manifestos—neither of which had received the endorsement of the electorate in the form of sufficient seats to form a government.

  22.  Accordingly, it follows that neither political party has a clear mandate for a manifesto Bill based on the manifesto it put forward at the general election. The only conceivably clear mandate for a manifesto Bill the coalition government could have based on the manifestos from each of the constituent party forming the coalition would be where either of the two parties forming the coalition had put forward policy proposals in their own manifestos which were in line with policy proposals put forward by the other party forming the coalition.

  23.  So we believe that where a proposal from the coalition government was contained in both of the 2010 general election manifestos from the political parties forming the coalition, that proposal would rightly be subject to the Salisbury convention.

  24.  Equally, proposals from the coalition government which were only in the 2010 general election manifesto from one of the political parties forming the coalition would not be subject to the Salisbury convention.

  25.  The second point about the Convention and the coalition government relates to proposals based on the policy agreements contained in the coalition's programme for government. In relation to this point, we believe the position of the Convention is equally clear.

  26.  Regardless of the difficulty of defining conventions, including the Salisbury-Addison convention, and of defining manifesto Bills, as set out in the Joint Committee's report, it is clear that the convention rests on the manifestos of political parties standing in the election and hoping to form a government.

  27.  It is equally clear that whatever was in the manifestos put forward in the 2010 general election by the two parties which, when the election was over, went on to form a government, nothing that the discussions which led to the formation of the coalition government or the subsequent policy agreements which were set out in the coalition government's policy programmes for government—initial and full—had at any time been put before the electorate, either as manifestoes or indeed in any other form. So the programmes for government agreed by the two parties forming the coalition fail the fundamental test for the application of the Salisbury convention: that they have been put before the electorate, usually in the form of a manifesto, and so have a clear mandate for proposals which will then form a manifesto Bill.

  28.  Accordingly, we believe that any proposal from the coalition government stemming only from the post-election agreements reached by the parties forming the coalition would not be subject to the Salisbury convention.

  29.  Equally, we believe that any proposal from the coalition government stemming from the post-election agreements reached by the parties forming the coalition which had also been contained in both of the manifestos from the parties forming the coalition would be subject to the Salisbury convention.

11 November 2010

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