Parties and groups
32. The Government consider that Commons primacy
rests on two things, "the election of its members as the
representatives of the people", and "power to grant
or withhold supply" (i.e. taxation).
So long as the Government has the confidence of the Commons, it
has "the right ... to carry through the programme set out
in its election manifesto."
This mandate does not depend on the size of the Commons majority:
"A government is a government is a government."
And it is not restricted to the letter of the manifesto: "issues
which were not envisaged at the time of the election should nonetheless
be treated as part of the government's mandate if they are within
the spirit of the manifesto or necessary for the protection of
the country and plainly enjoy the confidence of the Commons."
33. The Lords "fulfils a different function"
from the Commons, and "defers" to the Commons "when
there is a difference of opinion".
The Lords is "a revising chamber not a vetoing chamber".
Its role is "to scrutinise and revise legislation but not
to operate in such a way that the democratic authority of the
Commons was sabotaged."
The Lords does not have an ultimate right to say "No".
Lord Grocott, the Government Chief Whip in the House of Lords,
said it was "close to being a convention" that the Lords
do not reject any Bill at Second Reading;
and as an example of the Lords going too far, Jack Straw, the
Leader of the House of Commons, cited the Criminal Justice (Mode
of Trial) (No. 2) Bill, a government Bill but not a manifesto
Bill, which the Lords rejected at Second Reading on 28 September
34. The Parliament Acts and the rules governing Supply
are necessary to define the relationship between the two Houses,
but they are not sufficient.
The rest of the job is done by conventions. For conventions to
work requires "shared understanding" of what they mean.
"A contested convention is not a convention at all."
35. The Government consider that the behaviour of
the Lords has become more assertive since 1999.
One measure of this is the increased number of Government defeats
in normal-length Sessions:
36. In the Government's view, shared understanding
of the conventions is necessary "[a]s we move forward to
the next stage of reform".
The Government's attempt at stage two in 2003-04 failed because
of "lack of agreement about the interconnection between the
relevant powers of each House and the composition of the Lords".
Failure to reach agreement on powers will make it difficult to
agree on composition, and even if this were resolved it would
make for "constant battle" between the Houses thereafter.
An elected or part-elected Lords might even "appear to challenge
the essential primacy of the Commons".
As one predictor of this, Lord Grocott pointed to the following
figures for Government defeats in the Lords per Parliament,
noting that they were higher when the Government was in a minority
in the Lords:
1975-79 Labour Government, no majority 240
1979-83 Conservative Government, majority 46
1983-87 Conservative Government, majority 62
1987-92 Conservative Government, majority 72
1992-97 Conservative Government, majority 62
1997-2001 Labour government, no majority 108
2001-05 Labour government, no majority 245
37. Lord Grocott also drew attention to the extent
of 'ping-pong' (the exchange of amendments between the Houses).
This is of course linked to the number of government defeats,
and likewise rises when the Government is in a minority in the
38. The Opposition wish to see both Houses of Parliament
the Government. They
see no need to codify conventions, either to solve a present problem
or as a precursor to further Lords reform. The primacy of the
Commons is guaranteed by the Parliament Acts and is respected
by the Lords. Unlike the Government, they consider that the Lords
have the right to say "No", with the Parliament Acts
as a constitutional long-stop.
However, like the Government, they would not expect use of the
Parliament Acts to be the norm: Lord Strathclyde, the Leader of
the Opposition in the House of Lords, said, "we are concerned
about this, and at some stage would like to be in government again
and we would like the relationship between the two Houses to develop
in such a way that ultimately the elected House gets its way without
resorting to the Parliament Act or can reach a sensible compromise."
39. The Opposition agree with the Government that
"a government is a government". However they consider
themselves entitled to have regard to the size and nature of the
Government's majority in the Commons on particular measures, e.g.
the Bill to create NHS foundation trusts in England and Wales,
for which the government majority in the Commons depended at one
point on the votes of Scottish MPs.
40. The Opposition accept that the House of Lords
has been more assertive since 1999. But they give other reasons
besides the expulsion of hereditary peers, in particular programming
of Bills in the Commons, and the switch in emphasis, when new
peers are created, from a peerage as an honour to a peerage as
a job. They also
drew attention to the focus in recent years on civil liberties
issues - jury trial, detention of terrorist suspects, identity
cards etc. In fact
Lord Strathclyde told us that he did not subscribe to the "Jay
doctrine": "although there had been a change in the
balance between the parties, I did not feel there had been a fundamental
change in the composition of the House. I did not accept the argument
that some may have done that it was a more legitimate House than
the old House; and I therefore felt, after some thought and a
look at extending the boundaries of the powers of a relationship
between the two Houses, that the conventions should stick and
they have done so."
41. Lord Strathclyde told us how, in response to
the Jay doctrine, he deliberately tried to "push out the
boundaries" in 2000 with regard to delegated legislation
(see below), and then resiled from this position in the light
of experience. He
does not consider that the Lords' new assertiveness is in conflict
with the principle that "in the end the House of Commons
should get its way".
42. The Opposition would expect an elected House
to be still more assertive. Changing the composition of the House
would change the conventions, and also the spirit in which they
are operated. If the Commons agree to create an elected second
chamber, they "must be presumed to have made an informed
judgment" in doing so, and to assent to a changed relationship
between the Houses.
43. Unlike Lord Strathclyde, the Liberal Democrats
see "a considerably changed set of constitutional and political
circumstances" since 1999.
They agree with the Conservatives, however, that the problem is
not the balance between the two Houses, but between Parliament
and government. They raise the spectre of an "elective dictatorship",
where a Commons majority gives the Government "the unalloyed
ability to prosecute its business without the burden of proper
checks and balances", and the Lords are reduced to "an
impotent debating society".
They accept the "clear primacy" of the Commons,
but they do not accept that "a government is a government".
They look behind the number of seats at Westminster, at turnout
and the share of the vote. How far the Lords can resist a government
proposal also depends, they say, on public opinion,
on the solidity of support for the Government on its own backbenches,
and on how long ago was the General Election. And the Lords have
a special responsibility in relation to constitutional and civil
44. On the other hand, the Liberal Democrats believe
that the Lords should not reject any government Bill at Second
or Third Reading, regardless of whether it is a manifesto Bill.
"To do so would run contrary to its role as a revising chamber".
They see this as a third guarantee of Commons primacy, alongside
the Parliament Acts and the rules of Supply.
The Lords are free to amend Bills, and to insist on amendments
rejected by the Commons. By "insist", however, the Liberal
Democrats did not appear to mean "insist to the point where
the bill dies"; in the end, in the absence of compromise,
the Lords must give way to the Commons.
45. Lord Williamson of Horton, the Convenor of the
Crossbench Peers, said that, in 'ping-pong', Crossbenchers in
the Lords tend to accept the right of the Commons to get their
way sooner than the opposition parties.
46. Discussing the Salisbury-Addison Convention,
the Clerk of the Parliaments addressed the possibility that the
House of Lords might acquire elected members and claim a mandate.
He said, "the number of elected members and the mode of election
may be crucial for the survival of the convention. For example
the preservation of an appointed element in the Lords and a system
of staggered elections for the remainder so that only a minority
of membership is elected at any General Election is one way of
protecting the convention. There may be others. All in all it
is likely to be difficult to ensure that any definition of the
convention now would survive a significant change in the composition
of the Lords."
2. The Clerk of the House of Commons agreed. He saw
the primacy of the Commons as being "founded" on three
things: the rules of Supply, the Parliament Acts, and, "underpinning
both those, the superior authority properly accorded to a chamber
whose Members are elected by and represent the will of the nation's
people over a chamber whose Members are not so elected."
47. In his view, therefore, the introduction of elected
Lords would be bound to make a difference. It would call into
question the conventions, even if codified in the form of resolutions;
indeed it might even require reconsideration of the Parliament
"... if the House of Lords were to become a
largely or wholly elected body I can conceive in that circumstance
a new statutory statement of the functions of the House of Lords
might be necessary."
"... to embark on a major reconstruction of
the composition of the Second House without at the same time attempting
to pin down what you are reconstructing it to do would be a dangerous
48. According to Professor Anthony Bradley, Professor
Emeritus of Constitutional Law, University of Edinburgh, Commons
primacy is not absolute.
Tension between the Houses, or between government and Parliament,
is to be expected and is healthy. The alternative would amount
to a unicameral/one-party system. "I do not agree that because
a government is a government it therefore can claim to carry through
in a single session all the legislation it wishes to carry through
in its programme". He sees the Lords not just as a revising
chamber, but also as "a delaying chamber, ... to impose the
time for public opinion, for the media, for Parliament to think
again and for ministers ... or civil servants to be persuaded
to think again".
49. There is a basic tension between "think
again" (or "checks and balances") and "get
its business". Professor Vernon Bogdanor, Professor of Government,
Oxford University, called this "a fundamental divergence
of view on the problem of modern democracy".
Professor Bradley (quoting Lord Carter, a member of this Committee)
called it the "crucial point" and "the real problem",
and called for a "common political understanding" of
the role of the Lords.
50. Lord Norton of Louth, Professor of Government,
Hull University, saw a link between the Lords' revising role and
its current composition, as - to an extent - a House of experts,
complementing the professional politicians in the Commons.
51. Both Professor Bradley and Professor Bogdanor
consider that the Lords can get away with more when they act in
tune with public opinion.
Dr Meg Russell, Senior Research Fellow, the Constitution Unit,
University College London, has researched public attitudes to
the role of the Lords since 1999, and in particular to the question
of when the Lords can justifiably block a government Bill.
She summarised her findings as follows: "They were actually
fairly supportive of the Lords' rights to block Bills in general,
but the thing that mattered to them was whether the Bill had public
support or not. If it was an unpopular Bill around two-thirds
of the public felt that it was justified for the Lords to vote
against it, whether or not it was in the manifesto - the manifesto
seems to make very little difference."
52. The public were not split by party on this; public
approval of the Lords blocking a Bill was as strong among government
supporters as their opponents. Another factor which increased
public approval was disquiet among government backbench MPs.
53. In the view of our academic witnesses, further
Lords reform would be bound to alter the relationship between
the Houses. Professor
Bradley added, "there might be no real force in seeking to
change the composition unless one was prepared for circumstances
in which the behaviour of the Upper House would be different".
54. Dr Russell drew our attention to certain important
parliamentary conventions which are not controversial and which,
though not directly to do with legislation, are connected with
the primacy of the House of Commons. The principal one is the
confidence convention, but she noted also the convention that
the Prime Minister and most other senior Ministers are drawn from
55. The Canadian Senate is the nearest overseas equivalent
to today's House of Lords, because its members are appointed and
serve to the age of 75.
The Clerk of the Senate described it as a revising chamber and
(quoting Sir John A. MacDonald)
as "the chamber of sober second thought", acting as
a complement to the Canadian House of Commons.
It has never "directly and consistently" challenged
the primacy of the Commons, and therefore Canada has no equivalent
of the Parliament Acts. The Senate has extensive powers, but it
uses them with restraint. It does not block mandated bills; and
"In the last fifty years or so, a convention has emerged
such that the Senate will normally acquiesce to the express view
of the Commons when there is a dispute on a bill". However,
when the dispute concerns the Constitution, the Charter of Rights,
or linguistic, minority or regional rights, or the issue is highly
controversial, or the Government has no clear mandate, the Senate
has been prepared to insist on amendments, delay or defeat Bills,
and even (in 1988) precipitate an election.
56. The Clerk of the Senate observed, "If the
Senate were to be reformed and, among other possibilities, elected,
it is far from certain that the restraint that currently guides
the Senate's deliberations would hold."
The Government's evidence to us made much of the fact that overseas
experience, admittedly from countries with written constitutions,
shows that a second chamber can be elected and yet remain constitutionally
subordinate. If the constitution defines a limited role for the
second chamber, and provided the basis of election is not identical
to that of the primary chamber, "that is the basis on which
you get elected and people just have to just accept that."
57. We were instructed to accept the primacy of
the House of Commons. None of our witnesses has questioned it,
and neither do we. It is crucially underpinned by the Parliament
Acts, which we have taken as given for the purposes of this inquiry
(see para 19 above). But we detect a good deal of shading around
what it means in the context of legislation, and what role it
leaves for the House of Lords. No-one challenges the right of
the Lords to consider Bills, including acting as "first House",
and to consider Statutory Instruments where the parent Act so
provides. It is common ground that the Lords is a revising chamber,
where government measures can be scrutinised and amendments proposed.
But there is a range of views on what should be the proper role
of the Lords in the legislative process.
58. The argument is complicated by the presence of
extreme positions, which nobody holds but which each side perceives
in some of the other side's rhetoric. The Government do not wish
to emasculate the House of Lords,
and neither opposition party envisages using the Lords to force
the Government to have regular recourse to the Parliament Acts.
But fear of these exaggerated caricature positions drives each
side to state its own position in more extreme terms than is really
59. Nonetheless there remains a distance between
the Government and opposition visions of the role of the House
of Lords. At the risk of over-simplifying, the opposition parties
are broadly happy with the Lords' behaviour since 1999; the evidence
we have received suggests that the public at large feel the same.
The Government do not.
60. It is generally accepted that any reform of the
Lords' composition which introduced an elected element would invite
the House of Lords to be at least as assertive as in recent years,
and probably more so. The Opposition accept this and say they
would welcome it. The Government would not. They hope to fix the
role of the Lords, by a process of codification, so as to prevent
61. We have interpreted our remit as being to define
the present reality, and to consider the practicality of codifying
it. We do so in the chapters which follow. Our conclusions
apply only to present circumstances. 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. What could
or should be done about this is outside our remit.
34 O Hood Phillips and Jackson on Constitutional and
Administrative Law (8th ed., Sweet & Maxwell 2001) para 7-018. Back
Op cit, para 4.7. Back
Op cit, para 4.7. Back
Op cit, para 4.21 and Recommendation 7. Back
HL Hansard, 26 January 2005, Vol 668, col 1335. Back
The House "will be able to speak with more authority
decision by the House not to support a proposal from the Government
will carry more weight because it will have to include supporters
from a range of political and independent opinions. So the Executive
will be better held to account." Quoted in HL Hansard, 7
December 1999, Vol 607, col 1262. Back
Op cit, p 2. Back
Second Report of the Joint Committee on House of Lords Reform,
Session 2002-03, HL Paper 97, HC 668, para 15. Back
Op cit, Section 7. Back
Ev 2, para 9. Back
Ev 2, para 10; Q 19. Back
Q 7. Back
Ev 27, para 1. Back
Ev 2, para 12. Back
Q 19. Back
Q 3. Back
Q 10. Back
Q 19. Back
Q 15. Back
Q 15. Back
Ev 3, para 19. Back
Ev 3, para 15, and Q 3. Back
Q 11. The figures are from the House of Lords Information Office.
This Office defines a Government defeat as a division in which
the Tellers on the losing side were Government Whips. Divisions
where the votes cast were equal are included; divisions which
were forfeited for lack of Tellers, or aborted because there was
no quorum, are not included. Back
Ev 3, para 20. Back
Q 1. Back
QQ 5, 12, 15, 20-21. Back
Ev 3, para 14; QQ 34-35, 38. Back
Figures again from House of Lords Information Office. Back
Q 14. Back
Q 26, citing Ev 97; also Ev 30, para 16. Back
Q 76. Back
Q 108. Back
Q 57. This was the Health and Social Care (Community Health and
Standards) Bill of 2003. Back
Q 53. Back
Ev 35, para 2.3. The same point was made by the Liberal Democrats,
Ev 59, para 4.4 and Q 157, and the Convenor of the Crossbench
Peers, Q 125. The Wakeham Report also identified a tendency for
the Lords to take up human rights issues; but it called it a "tradition",
and traced it back to the 1980s - para 5.24. Of the four Bills
since 1999 which have gone to three or more rounds of 'ping-pong',
three involved human rights: Criminal Justice in 2003, Prevention
of Terrorism in 2005 and Identity Cards in 2006, see Ev 97. Back
Q 55. Back
Q 60. Back
Q 61. Back
Q 56. Back
Q 63. Back
Ev 56; Q 167. Back
Ev 56. Back
Q 149. Back
Q 189. Back
Q 150. Lord Norton of Louth made the same point at Q 326. Back
QQ 154, 157, 170, 189. Back
Ev 66, para 22.2.1; Q 168. Back
QQ 154-156, 184, 189. Back
QQ 131, 143. This is borne out by the voting record for 10-11
March 2005, the all-night sitting on the Prevention of Terrorism
Bill. The Conservative vote on the Bill peaked at 121 on division
1, and never fell below 91. The Liberal Democrat vote was even
steadier, remaining between 56 and 48 throughout. But the number
of Crossbenchers voting against the Government fell from an average
of 39 in the first round (divisions 1-4) to an average of 21 (divisions
12-13). Source: House of Lords Journal, Vol. 238, and divisions
analysis website, http://holintranet/HoLDivisionsAnalysis on the
parliamentary intranet. Back
Ev 84, para 34, also Q 221. Back
Ev 100, para 5. Back
Q 279. Back
Q 276. Back
Q 266. Back
Q 270. Back
Q 302. Professor Bradley was an adviser to the Wakeham Commission. Back
Q 302. Back
Ev 167, para 13. Back
QQ 302, 303. Back
Q 332. Compare Wakeham Report para 4.40. Back
Ev 118, para G; Ev 167, para 15. Back
QQ 322, 326. Views from Peers, MPs and the Public on the Legitimacy
and Powers of the House of Lords, paper to a seminar 12 December
2005 by Dr Meg Russell, Constitution Unit, University College
London. Available at http://www.ucl.ac.uk/constitution-unit/research/parliament/house-of-lords.html
. Public survey conducted by MORI in May 2005, 3 weeks after the
General Election. 1,007 valid respondents; results adjusted to
be representative of population as a whole. Back
Q 322. Back
QQ 310, 313, Ev 167, para 11; Ev 136, para 5. Back
Q 310. Back
Q 304, Ev 174. Back
Formerly for life. A government proposal for 8-year terms is currently
under consideration. Back
Canada's first Prime Minister. Back
Ev 157. Back
Ev 160. Back
Ev 161. Back
Australia, Spain, Germany, Ireland, France, Ev 2, para 13. See
also QQ 299, 310. The counter-example is the US Senate, Q 20. Back
Q 12. Back
See for example Ev 3, para 16 and Mr Straw at Q 9. Back
See Lord Strathclyde at Q 108 and Lord Wallace of Saltaire and
David Heath MP at Q 149. Back