Joint committee on Conventions Report

1  Background

Our remit

1. Following debates in the House of Lords on 25 April[1] and the House of Commons on 10 May 2006[2] the two Houses of Parliament agreed that:

"accepting the primacy of the House of Commons, it is expedient that a Joint Committee of the Lords and Commons be appointed to consider the practicality of codifying the key conventions on the relationship between the two Houses of Parliament which affect the consideration of legislation, in particular:

(A) the Salisbury-Addison convention that the Lords does not vote against measures included in the governing party's Manifesto;

(B) conventions on secondary legislation;

(C) the convention that Government business in the Lords should be considered in reasonable time;

(D) conventions governing the exchange of amendments to legislation between the two Houses".

1. We were originally ordered to report by 21 July 2006. At our request, this deadline was extended to the end of the current Session of Parliament.

Why does this matter?

2. At its core, the work of this Joint Committee examines the relationship between the primacy of the House of Commons, and the role and conduct of the House of Lords, as defined by the unenforceable conventions which govern its proceedings. This reality is one of the principal consequences of an unwritten constitution.

3. Our remit is hard for most people outside Westminster to understand, but it is very important. This is a free country, and the Westminster Parliament is one of the things which make it so. Parliament is a complex mechanism, but at its heart is a simple balance: the balance between enabling the Government to do things, and holding them to account - asking questions, proposing alternatives, forcing them to reveal information and justify their actions. This report is about the most important aspects of how this crucial balance works.

4. Our remit refers to the relationship between the two Houses of Parliament. When a House of Parliament takes a position or exercises a power, it seldom does so because all the Members feel the same way; more often it is by negotiated agreement or by majority vote.[3] In our parliamentary democracy the majority in the House of Commons is closely associated with the Government: it sustains it, and most Ministers are drawn from it. In the Lords, at present, the House's actions may at any time be dictated by a combination of opposition parties and Crossbenchers. Therefore, though "the relationship between the two Houses of Parliament" may sound rather abstract, in practical terms it usually means the relationships between Parliament and government, and between government and other members.

5. People's attitudes towards government are generally sophisticated.[4] People vote a government in because they want it to do things. Yet they do not like to see government get an easy ride. They like there to be "checks and balances", and the main ones are a free press, the courts, and Parliament (including the devolved assemblies). The issue at the heart of our inquiry is how far the Government - any government - is entitled to get its way in the Westminster Parliament on the basis of its majority in the Commons. This is, or ought to be, of concern to us all.

6. This report inevitably uses parliamentary expressions and technical terms. Some of these are explained in a glossary in Appendix 7. Since in this field it is important to understand not just what was said but who said it, this Appendix also identifies certain key personalities.

Origins of this inquiry

7. The Labour Manifesto for the General Election 2005 said,

"Parliamentary reform

Labour has already taken steps to make the House of Commons more representative, through all-women shortlists. Labour will also continue to support reforms that improve parliamentary accountability and scrutiny led by the successful Modernisation Committee.

In our first term, we ended the absurdity of a House of Lords dominated by hereditary peers. Labour believes that a reformed Upper Chamber must be effective, legitimate and more representative without challenging the primacy of the House of Commons.

Following a review conducted by a committee of both Houses, we will seek agreement on codifying the key conventions of the Lords, and developing alternative forms of scrutiny that complement rather than replicate those of the Commons[5]; the review should also explore how the upper chamber might offer a better route for public engagement in scrutiny and policy-making. We will legislate to place reasonable limits on the time bills spend in the second chamber - no longer than 60 sitting days for most bills.

As part of the process of modernisation, we will remove the remaining hereditary peers and allow a free vote on the composition of the House."

8. This refers to the primacy of the Commons, a joint committee, codifying key conventions, and reasonable time - all elements of our inquiry.

9. However the issue of the conventions had arisen before that in the debate on Lords reform. The Royal Commission on the Reform of the House of Lords[6], more commonly referred to by the name of its Chairman, Lord Wakeham, noted their importance in the context of reform of composition in Chapter 4 - Making the law[7], and made recommendations in each of the areas specified: for no change to the Salisbury-Addison and reasonable time conventions; for change in the areas of exchange of amendments between the Houses ('ping-pong') and delegated legislation. (For details see below.)

10. In their response, Completing the reform[8], the Government accepted the Wakeham Commission's analysis. They proposed to maintain, without legislation, "conventions on the pre-eminent authority of the Commons over legislation and other measures required to implement a Government's election Manifesto", and "the need for the Lords to continue to observe restraint in the way it exercises its still extensive powers."[9]

11. In 2002, in the light of responses to Completing the Reform, the Government invited the two Houses to set up a Joint Committee on House of Lords Reform.[10] In its First Report[11], the Joint Committee said, "...insufficient attention has been paid to the conventions that actually govern how the Lords conducts its business and behaves towards the Commons. We consider that these existing conventions, which are of a self-restraining nature, impact profoundly on the relations between the Houses and need to be understood as a vital part of any future constitutional settlement."[12]

12. After noting the Salisbury-Addison, reasonable time and exchange of amendments conventions, it went on, "Taken together, these conventions govern the day-to-day relations between the Houses during a parliamentary session, contributing in a significant way to the overall effectiveness of Parliament as a place where business is transacted efficiently. The House of Lords could depart from any of these conventions at any time and without legislation, and might well be more inclined to do so if it had been largely (and recently) elected. But the continuing operation of the existing conventions in any new constitutional arrangement will be vital in avoiding deadlock between the Houses - which could all too easily become an obstacle to continuing good governance. We therefore strongly support the continuation of the existing conventions. When the views of the Houses on composition are made known, we will return to the detailed matter of how these important conventions should be maintained in a new constitutional settlement between the Houses."[13]

13. The Joint Committee repeated this point in its Second Report[14], after the inconclusive votes on composition of the House of Lords in both Houses in January 2003.[15] It said, "the manner of maintaining these conventions requires careful attention and could form one part of the continuing programme of reform." [16]

14. The concept of codification emerged in a report on Lords reform, produced by a group of Labour peers led by Lord Hunt of Kings Heath in July 2004 ("the Hunt report").[17] It recommended "that the Labour Party, alongside any proposals on composition, should commit itself in its election manifesto to reform of the powers, conventions and procedures of the House of Lords through the enactment of a new Parliament Act and codification of the key conventions of the House." It went on to assert that, since 1999, the House had "on a number of occasions, tested the boundaries of some of these conventions."[18]

15. Finally, in February 2005, before the Election, a cross-party group of MPs,[19] supported in both Houses by members of all three major parties, produced Breaking the Deadlock, an attempt to define a way forward on Lords reform which would achieve consensus in Parliament. They analysed the failure to reach consensus on stage two reform after stage one in 1999, and concluded, "the root of disagreement is really about the second chamber's power".[20] They noted the concern that electing the Lords would compromise the primacy of the Commons, and concluded that such apprehensions were misplaced: Commons primacy rested "crucially" not on election, but on the confidence convention: that the Government must command the confidence of the Commons, but not necessarily that of the Lords. The group noted that concern for Commons primacy was often used as a "proxy" for an anxiety that the Government should be able to get its business without the burden of proper checks and balances. Breaking the Deadlock was clear that the Lords should be not a rival to the Commons, but that the two chambers were partners in a joint endeavour to hold the Executive to account. Properly scrutinised government, the group argued, was not anathema to strong government.[21]

16. Breaking the Deadlock defined the role of the Lords, now and in its vision of the future, as "review, scrutiny and deliberation". It called for no change to the Lords' powers, but for procedural change to improve their relationship with the Commons. It recommended that the Lords "should seek to complement, rather than duplicate, the work of the House of Commons" [22]- another phrase which found its way into the Labour manifesto.

Assumptions and exclusions

17. In a Special Report published on 25 May 2006[23], we declared the following assumptions and exclusions:

"5. This inquiry is set in the context of a debate about House of Lords reform. Our remit, as we see it, is to seek consensus on the conventions applicable now, and to consider the practicality of codifying them. We have not been charged to consider the composition of a future Second Chamber.

6. We assume that the House of Lords will retain its present open procedures ("self-regulation"), and that codification will not involve giving new powers to the Lord Speaker.

7. We assume that codification will not involve increased oversight of Parliament by the courts.[24]

8. We do not offer a definition of "convention". We believe we will know one when we see it.

9. We are charged to consider the practicality of codification, not the desirability of codification, so far as this can be distinguished.

10. We have not been charged with considering modification of existing conventions.

11. Our remit excludes conventions wholly internal to each House, and conventions which do not affect legislation.

12. We take the financial privilege of the House of Commons as a given. We will not consider

a) The special status of Supply Bills, including the rule against tacking

b) The special status of Money Bills

c) The "privilege amendment" convention, which permits Bills with financial implications to start in the Lords.

13. We will not consider the following categories of legislation:

a) Supply Bills and Money Bills

b) Consolidation and Tax Law Rewrite Bills

c) All forms of private legislation

d) Draft bills and pre-legislative scrutiny

e) Private Members' Bills."

18. We have also assumed the continued existence of the Parliament Acts. Though rarely used, these have defined the fundamentals of the relationship between the two Houses ever since 1911, expressly limiting the powers of the Lords compared with the Commons, and acting as a long-stop to save a Bill and to vindicate the primacy of the Commons when there is deep disagreement between the two Houses. Their authority has recently been confirmed by the Law Lords in the context of the Hunting Act 2004[25]; and the Government have not proposed to amend them, save so as to make them apply to Bills started in the Lords.[26] Sir Roger Sands, who gave evidence to us as Clerk of the House of Commons, observed that the preamble to the 1911 Act indicated that it was intended as a temporary measure pending reconstitution of the Lords "on a popular instead of a hereditary basis"; but that this would not expose the Acts to legal challenge if the Lords were elected but the Acts left intact.[27] In terms of our remit, the Parliament Acts already provide a limited but crucial codification of the "conventions on the relationship between the two Houses", and we assume that they are here to stay.

19. A further assumption has emerged, concerning the composition of the House of Lords. One of the aims of the House of Lords Act 1999 was to end the situation whereby one party had an in-built majority in the House of Lords. This has been achieved. But moreover, since the passage of that Act, no party has had an overall majority in the Lords, even on a temporary basis. This was the expectation of the Wakeham report[28], and it is current government policy.[29] It is widely assumed that it is to remain the case for the foreseeable future.[30] Dr Meg Russell, Senior Research Fellow at the Constitution Unit, University College London, went so far as to call it a "new convention".[31] It is not clear how it could be guaranteed if the second chamber had a significant elected element; but that question is outside our remit. It is also worth noting that the House of Lords, unlike the Commons, has a sizeable number of independent (Crossbench) members, whose number is currently more or less equal to the membership of the Official Opposition in the House. [32]

Conduct of the inquiry

20. Appendix 1 lists the members of this Committee and relevant interests. We have met 11 times. We have received oral and written evidence from the witnesses listed in Appendix 2, to all of whom we are grateful for their help. All the evidence is printed with this report. Written evidence is referred to by page number ("Ev"), oral evidence by question number ("Q"). We appointed no specialist advisers, relying instead on the advice of the staff of the two Houses, to whom we are grateful, and on our own experience.

21. The Westminster Parliament is very willing to learn from others. We have received helpful accounts from Australia, India and Canada of how their two Houses work together on legislation. However, caution must be used when comparing isolated points from very different systems and contexts.[33]

1   HL Hansard, 25 April 2006, Vol 681, cols 74-95. Back

2   HC Hansard, 10 May 2006, Vol 446, cols 436-474. Deferred division, 17 May. Back

3   The Acting Clerk of the Australian House of Representatives put it thus, and his words apply here too: "There is something to be said for care in ascribing views, positions or motives to Houses of a Parliament as such - they are in essence collections of individuals. In respect of any given legislative proposal there would no doubt have been some diversity of views between members and between senators as to the proper use of the law-making powers available to the respective Houses. Consensus among the members of a House as to these matters in any particular case, or more generally, should not be assumed ... Unsurprisingly, disputes between the Houses in respect of legislation have in fact typically reflected unresolved disagreement at a party-political level." Ev 154. Back

4   See the evidence of Dr Meg Russell, Senior Research Fellow, Constitution Unit, University College London, at Q 326 for academic research on this. Back

5   This commitment is not in our terms of reference, although similar proposals were made by the Hunt group (the Labour Peers Working Group on House of Lords Reform). Lords Carter and Tomlinson, members of the Committee, were members of that group. Back

6   Royal Commission on Reform of the House of Lords, A House for the Future, Cm 4534, January 2000. Back

7   Op cit, para 4.5. Back

8   The House of Lords - Completing the Reform, Cm 5291, November 2001. Back

9   Op cit, paras 27-28. Back

10   The following members of this Committee were also members of that Committee: Viscount Bledisloe, Lord Carter, Lord Cunningham of Felling (Chairman, as Dr Jack Cunningham MP), Lord Tyler (as Paul Tyler MP). Back

11   First Report of the Joint Committee on House of Lords Reform, Session 2002-03, HL Paper 17, HC 171. Back

12   Op cit, para 11. Back

13   Op cit, para 12. Back

14   Second Report from the Joint Committee on House of Lords Reform, Session 2002-03, HL Paper 97, HC 668. Back

15   Lords 21 and 22 January, Commons 21 January. Back

16   Op cit, para 15. Back

17   Report to the Lords Labour Group by the Working Group on House of Lords Reform. Lords Carter and Tomlinson, members of this Committee, were members of that group. Back

18   Op cit, Section 3, Summary. Back

19   Including Paul Tyler, now Lord Tyler, a member of this Committee. Back

20   Op cit, p 8. Back

21   Op cit, p 10. Back

22   Op cit, pp 14-15. Back

23   First Special Report, Session 2005-06, HL Paper 189, HC 1151. Back

24   See below, Chapter 8 CodificationBack

25   Jackson and others v. Attorney-General [2005] UKHL 56. Back

26   Q 32. The Wakeham Commission discussed this, and saw difficulties with it - Op cit, para 4.18. Back

27   Ev 99 andQ 276. The full preamble reads:

"Whereas it is expedient that provision should be made for regulating the relations between the two Houses of Parliament:

And whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation:

And whereas provision will require hereafter to be made by Parliament in a measure effecting such substitution for limiting and defining the powers of the new Second Chamber, but it is expedient to make such provision as in this Act appears for restricting the existing powers of the House of Lords:"  Back

28   Op cit, paras 3.13, 13.28. Back

29   Eg The House of Lords - Completing the Reform, Cm 5291, Nov 2001, Principles on p 4; Constitutional Reform: Next steps for the House of Lords, DCA CP 14/03, September 2003, para 41. Back

30   Eg Lord Grocott Q 14; Lord Falconer of Thoroton Q 15; Dr Russell Q 304; Professor Bogdanor Ev 166. Back

31   Ev 175. Back

32   On 3 July 2006 the party balance was as follows: Labour 213, Conservative 210, Crossbench 196, Liberal Democrat 79, Bishops and others 43, total 741. Back

33   Q 300. Compare the Wakeham Report, para 1.4. Back

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