Joint committee on Conventions Report


2  Primacy of the Commons, role of the Lords, and Lords reform

Background

Primacy of the Commons

22. Our remit requires us to accept "the primacy of the House of Commons". It is worth considering what this means in the context of legislation, and of the conventions operating between the two Houses.

23. Constitutional and Administrative Law by O. Hood Phillips and Jackson declares it to be a constitutional convention that "In cases of conflict the Lords should ultimately yield to the Commons."[34] It goes on to observe that this convention was backed until 1911 by the possibility of packing the Lords with government supporters, and has been underpinned since then by the Parliament Acts.

24. The Wakeham report reviewed the role and powers of the Lords in relation to primary legislation in detail in Chapters 3 and 4. It was of course recommending for a future second chamber, not merely describing the status quo. But it concluded that "the current balance is about right and should not be radically disturbed"[35]; so its prescription serves also as a description.

25. The Wakeham report considered that the second chamber's key role was to check and balance the Commons. This was more important than its role as a revising chamber. "It is right that the House of Commons should be the principal political forum and have the final say in respect of all major public policy issues, including those expressed in the form of proposed legislation. Equally, it is right that the second chamber should have sufficient power, and the associated authority, to require the Government and the House of Commons to reconsider proposed legislation and take account of any cogent objections to it." [36]

26. Commenting on the Salisbury-Addison convention, the Wakeham report said that the second chamber should "think very carefully before", or "be cautious about", "challenging the clearly expressed views of the House of Commons on any issue of public policy".[37]

27. In a debate in the Lords on the Hunt report on 26 January 2005, Lord Wakeham himself put it thus: "There are two fundamental principles in the way in which we conduct our business. First, a government who command a majority in the Commons are entitled to get their business. And an Opposition who accept that principle are entitled to their rights, and their rights, frankly, are to be very difficult from time to time."[38]

28. These various formulations are all expressions of the primacy of the Commons, and all variants of two well-worn parliamentary maxims: (a) the Government is entitled to get its business and (b) the Lords are entitled to ask the Commons to think again. But when is the Government entitled to get its business - "ultimately"/"in the end", or "in reasonable time"? Is it entitled to get all of its business, or only some core, and is that core definable? And how many times can the Lords reasonably ask the Commons to think again? These questions are not separate from the other elements of our remit; they underlie them all.

Role of the Lords

29. The answer to these questions depends on the view taken of the role of the House of Lords in legislation. The formal position gives the Lords equal status with the Commons as a House of Parliament in initiating and passing Bills, subject to Commons financial privilege and the Parliament Acts; and equal status with the Commons in approving delegated legislation in most cases, depending on the provisions of the enabling Act. In reality, this formal position has come to be moderated by conventions reflecting the primacy of the Commons. What the true position is, is the subject of this inquiry.

Lords reform

30. It is arguable that the position changed in 1999, with the expulsion of most of the hereditary peers from the Lords under the House of Lords Act and the emergence of a House where no party has an overall majority. Baroness Jay of Paddington, as Leader of the House, expressed the view at the time that the part-reformed House would have more legitimacy and authority vis-à-vis the Commons[39], and this "Jay doctrine" has often been cited since by peers inciting the Lords to defeat the Government. Also it is argued, for example by the Hunt report as quoted above, that the House of Lords has in practice been more assertive since 1999.[40]

31. The Government have always said that the 1999 reform was only "stage one", and that further reform is to follow. To begin with, it was generally assumed that "stage two", like stage one, would concern the House's composition, and that its powers and role would remain broadly the same. However, as quoted above, the Joint Committee on Lords Reform observed that further reform to composition might put the conventions governing use of the House's powers under strain[41]; and the Hunt report went so far as to call for stage two to be accompanied by a new Parliament Act.[42]

Evidence

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).[43] 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."[44] This mandate does not depend on the size of the Commons majority: "A government is a government is a government."[45] 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."[46]

33. The Lords "fulfils a different function" from the Commons, and "defers" to the Commons "when there is a difference of opinion".[47] The Lords is "a revising chamber not a vetoing chamber".[48] 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."[49] The Lords does not have an ultimate right to say "No".[50] 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[51]; 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 2000.[52]

34. The Parliament Acts and the rules governing Supply are necessary to define the relationship between the two Houses, but they are not sufficient.[53] 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."[54]

35. The Government consider that the behaviour of the Lords has become more assertive since 1999.[55] One measure of this is the increased number of Government defeats in normal-length Sessions:[56]

1998-99  31

1999-2000  36

2002-03  88

2003-04  64

36. In the Government's view, shared understanding of the conventions is necessary "[a]s we move forward to the next stage of reform".[57] 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".[58] 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.[59] An elected or part-elected Lords might even "appear to challenge the essential primacy of the Commons".[60] As one predictor of this, Lord Grocott pointed to the following figures for Government defeats in the Lords per Parliament[61], noting that they were higher when the Government was in a minority in the Lords[62]:

1975-79   Labour Government, no majority   240 defeats

1979-83   Conservative Government, majority   46 defeats

1983-87  Conservative Government, majority   62 defeats

1987-92   Conservative Government, majority   72 defeats

1992-97   Conservative Government, majority   62 defeats

1997-2001   Labour government, no majority   108 defeats

2001-05  Labour government, no majority   245 defeats

37. Lord Grocott also drew attention to the extent of 'ping-pong' (the exchange of amendments between the Houses).[63] This is of course linked to the number of government defeats, and likewise rises when the Government is in a minority in the Lords.

38. The Opposition wish to see both Houses of Parliament strengthened vis-à-vis the Government.[64] 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.[65] 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."[66]

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.[67]

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.[68] They also drew attention to the focus in recent years on civil liberties issues - jury trial, detention of terrorist suspects, identity cards etc.[69] 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."[70]

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[71] (see below), and then resiled from this position in the light of experience.[72] 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".[73]

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.[74]

43. Unlike Lord Strathclyde, the Liberal Democrats see "a considerably changed set of constitutional and political circumstances" since 1999.[75] 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".[76] They accept the "clear primacy" of the Commons[77], 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[78], on the solidity of support for the Government on its own backbenches[79], and on how long ago was the General Election. And the Lords have a special responsibility in relation to constitutional and civil rights issues.[80]

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.[81] 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.[82]

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.[83]

Clerks

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."[84]

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."[85]

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;[86] indeed it might even require reconsideration of the Parliament Acts.[87]

"... 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."[88]

"... 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 course."[89]

Academic witnesses

48. According to Professor Anthony Bradley, Professor Emeritus of Constitutional Law, University of Edinburgh, Commons primacy is not absolute.[90] 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".[91]

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".[92] 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.[93]

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.[94]

51. Both Professor Bradley and Professor Bogdanor consider that the Lords can get away with more when they act in tune with public opinion.[95] 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.[96] 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."[97]

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.[98] 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". [99]

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 the Commons.[100]

Overseas

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.[101] The Clerk of the Senate described it as a revising chamber and (quoting Sir John A. MacDonald[102]) as "the chamber of sober second thought", acting as a complement to the Canadian House of Commons.[103] 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.[104]

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."[105] The Government's evidence to us made much of the fact that overseas experience, admittedly from countries with written constitutions,[106] 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."[107]

Conclusions

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[108], and neither opposition party envisages using the Lords to force the Government to have regular recourse to the Parliament Acts.[109] But fear of these exaggerated caricature positions drives each side to state its own position in more extreme terms than is really warranted.

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 this outcome.

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

35   Op cit, para 4.7. Back

36   Op cit, para 4.7. Back

37   Op cit, para 4.21 and Recommendation 7. Back

38   HL Hansard, 26 January 2005, Vol 668, col 1335. Back

39   The House "will be able to speak with more authority…A 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

40   Op cit, p 2. Back

41   Second Report of the Joint Committee on House of Lords Reform, Session 2002-03, HL Paper 97, HC 668, para 15. Back

42   Op cit, Section 7. Back

43   Ev 2, para 9. Back

44   Ev 2, para 10; Q 19. Back

45   Q 7. Back

46   Ev 27, para 1. Back

47   Ev 2, para 12. Back

48   Q 19. Back

49   Q 3. Back

50   Q 10. Back

51   Q 19.  Back

52   Q 15.  Back

53   Q 15. Back

54   Ev 3, para 19. Back

55   Ev 3, para 15, and Q 3.  Back

56   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

57   Ev 3, para 20. Back

58   Q 1. Back

59   QQ 5, 12, 15, 20-21. Back

60   Ev 3, para 14; QQ 34-35, 38. Back

61   Figures again from House of Lords Information Office. Back

62   Q 14. Back

63   Q 26, citing Ev 97; also Ev 30, para 16. Back

64   Ev 35.  Back

65   Q 76. Back

66   Q 108. Back

67   Q 57. This was the Health and Social Care (Community Health and Standards) Bill of 2003. Back

68   Q 53. Back

69   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

70   Q 55. Back

71   Q 60. Back

72   Q 61. Back

73   Q 56. Back

74   Q 63. Back

75   Ev 56; Q 167. Back

76   Ev 56. Back

77   Q 149. Back

78   Q 189. Back

79   Q 150. Lord Norton of Louth made the same point at Q 326. Back

80   QQ 154, 157, 170, 189. Back

81   Ev 66, para 22.2.1; Q 168. Back

82   QQ 154-156, 184, 189. Back

83   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

84   Ev 84, para 34, also Q 221. Back

85   Ev 100, para 5. Back

86   Q 279. Back

87   Q 276. Back

88   Q 266. Back

89   Q 270. Back

90   Q 302. Professor Bradley was an adviser to the Wakeham Commission. Back

91   Q 302. Back

92   Ev 167, para 13. Back

93   QQ 302, 303. Back

94   Q 332. Compare Wakeham Report para 4.40. Back

95   Ev 118, para G; Ev 167, para 15. Back

96   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

97   Q 322. Back

98   QQ 310, 313, Ev 167, para 11; Ev 136, para 5. Back

99   Q 310. Back

100   Q 304, Ev 174. Back

101   Formerly for life. A government proposal for 8-year terms is currently under consideration. Back

102   Canada's first Prime Minister. Back

103   Ev 157. Back

104   Ev 160. Back

105   Ev 161. Back

106   Australia, Spain, Germany, Ireland, France, Ev 2, para 13. See also QQ 299, 310. The counter-example is the US Senate, Q 20. Back

107   Q 12. Back

108   See for example Ev 3, para 16 and Mr Straw at Q 9. Back

109   See Lord Strathclyde at Q 108 and Lord Wallace of Saltaire and David Heath MP at Q 149. Back


 
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