Joint committee on Conventions

Joint committee on Conventions Report

3 The Salisbury-Addison convention

62. The Salisbury Convention has its origins in the doctrine of the mandate developed by the third Marquess of Salisbury in the late 1880s as part of his efforts to perpetuate the influence of the House of Lords in an age of widening suffrage.[110] "Salisbury, a Conservative who sat in the Lords from 1868 until his death in 1903, developed a doctrine of the mandate over this period which argued that the will of the people and the views expressed by the House of Commons did not necessarily coincide, and that in consequence, the House of Lords had an obligation to reject, and hence refer back to the electorate, particularly contentious Bills, usually involving a revision of the constitutional settlement, which had been passed by the Commons."[111]

63. "Since 1945, the Salisbury doctrine has been taken to apply to Bills passed by the Commons which the party forming the Government has foreshadowed in its General Election manifesto, being particularly associated with an understanding between Viscount Addison, the Leader of the House of Lords, and Viscount Cranborne (the fifth Marquess of Salisbury from 1947), Leader of the Opposition in the Lords, during the Labour Government of 1945-51; and thus is sometimes called the Salisbury/Addison doctrine."[112]

64. Following the General Election in July 1945, the Labour Party had an overall majority of 156 in the House of Commons. In the House of Lords, however, there was an overwhelming Conservative majority. During the Lords debate on the first King's Speech Viscount Cranborne explained the approach of the Conservative Opposition to this situation: "Whatever our personal views, we should frankly recognise that these proposals were put before the country at the recent General Election and the people of this country, with full knowledge of these proposals, returned the Labour Party to power. The Government may, therefore, I think, fairly claim that they have a mandate to introduce these proposals. I believe it would be constitutionally wrong, when the country has so recently expressed its view, for this House to oppose proposals which have been definitely put before the electorate."[113] The Opposition continued to reserve "full liberty of action", however, where measures were introduced which had not been in the Labour party manifesto at the preceding election.[114]

65. The Salisbury-Addison Convention thus began, and continued, as a compact between the Labour and Conservative parties to deal with the relationship between a Labour Government and a House of Lords with an overwhelmingly large and hereditary Conservative Opposition. Peers in the Upper House who were not members of the Conservative Opposition or the Government were not party to the Convention.

66. The debate on the Salisbury-Addison Convention developed considerably in the 1990s. In 1993 the Crossbench peer, Lord Simon of Glaisdale, initiated a debate on the Convention and other practices which qualify the parliamentary role of the House of Lords. During that debate Lord Richard, the Leader of the Opposition in the Lords, queried "whether the Salisbury doctrine, pure and simple, can any longer be wholly sufficient to cover the position [of the House of Lords] in this day and age…. There still seems to be a consensus in the House on the desirability of what, I suppose, I can call the general practice of self-restraint when it comes to legislative matters. But it is important to acknowledge that as the House has become busier, questions will increasingly be raised, and have been raised, about the viability of its former role…. The function of the House, though, has changed, as I see it, from being primarily a revising Chamber. One of the main functions the House now has in relation to the other place, is that it is effectively the only place in which the legislature can curb the power of the executive."[115]

67. Lord Hesketh, the Government Chief Whip, said he was "an unashamed supporter of the doctrine" which he described as meaning "in practice that the House does not seek to vote down a manifesto Bill at second or third reading."[116] In answer to the suggestion that the Convention should not be applicable in the case of framework Bills he said that he believed it would be difficult to distinguish categories of Bills to which the doctrine should not apply.[117]

68. Viscount Cranborne, the Lord Privy Seal and Leader of the House of Lords, subsequently addressed the constitutional position of the House of Lords including the Salisbury-Addison Convention in a lecture to the think-tank Politeia in 1996. He commented "It is a doctrine that has become accepted in constitutional circles: so much so that it has come to be known as the Salisbury Convention: that is, it has been raised in the language of politics into a constitutional convention. That means it is definitely part of our constitution. I certainly regard it as such, and so does our party."[118] Viscount Cranborne acknowledged, however, that were the Lords to be reformed, the House might choose to renounce the doctrine. Viscount Cranborne also referred to the convention that the committee stage of constitutional measures should be taken on the floor of the House of Commons which he saw as an important constitutional safeguard. He asked whether the Labour Party was planning "while insisting on the preservation of the Salisbury Convention in the House of Lords, to overturn this crucial convention … in the House of Commons?"[119]

The Convention post-1999

69. In 1999, shortly after the enactment of the House of Lords Act, the Leader of the Opposition in the House of Lords, Lord Strathclyde, gave a lecture to Politeia on Redefining the Boundaries between the Two Houses. He argued that most of the conditions that gave rise to the Salisbury doctrine had gone. "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."[120] Lord Strathclyde then ventured some guesses about the Convention's new boundary. "The Salisbury-Addison agreement in essence held that the House of Lords would not vote against manifesto items at Second Reading, nor would it introduce wrecking amendments to such programme Bills. The House of Lords is not suddenly going to change all that. It will always accept the primacy of the elected House. It will always accept that the Queen's Government must be carried on. But, equally, it should always insist on its right to scrutinise, amend and improve legislation."[121]

70. On 15 December 1999 Baroness Jay of Paddington, Lord Privy Seal and Leader of the House of Lords, said in reply to a starred (oral) question "…the Salisbury/Addison convention has nothing to do with the strength of the parties in either House of Parliament and everything to do with the relationship between the two Houses……it must remain the case that it would be constitutionally wrong, when the country has expressed its view, for this House to oppose proposals that have been definitely put before the electorate."[122]

71. The Wakeham report in January 2000 described the Salisbury-Addison Convention as "an understanding that a 'manifesto' Bill, foreshadowed in the governing party's most recent election manifesto and passed by the House of Commons, should not be opposed by the second chamber on Second or Third Reading."[123] The report further noted that the Convention has sometimes been extended to cover 'wrecking amendments' which 'destroy or alter beyond recognition' such a Bill.[124]

72. The Wakeham report acknowledged that some people had argued that once the situation had been reached in which no one party could command a working majority in the second chamber there would be no need to maintain the Convention. It considered, however, that "there is a deeper philosophical underpinning of the Salisbury Convention which remains valid. This arises from the status of the House of Commons as the United Kingdom's pre-eminent political forum and from the fact that the general elections are the most significant expression of the political will of the electorate."[125]

73. The Wakeham report recognised that "there are substantial theoretical and practical obstacles to putting any formal weight on manifesto commitments. Only a tiny minority of the electorate ever reads party manifestos; and as it is most unlikely that any voter will agree with every sentence of any manifesto, it is rarely possible to interpret a general election result as evidence of clear public support for any specific policy. …Thinking on any given issue inevitably develops or changes over time and legislation introduced in the third or fourth session of a Parliament may differ significantly from the relevant manifesto commitment. To deny such legislation constitutional protection, while providing additional safeguards for other proposed legislation simply because it happened to be truer to the original commitment, would be unreasonable."[126]

74. The report concluded that the principles underlying the Convention remain valid and should be maintained. "A version of the 'mandate' doctrine should continue to be observed: where the electorate has chosen a party to form a Government, the elements of that party's general election manifesto should be respected by the second chamber." Of particular interest in the context of our inquiry, the report continued, "It is not possible to reduce this to a simple formula, particularly one based on manifesto commitments. The second chamber should pragmatically work out a new convention reflecting these principles."[127]

75. In 2001 Lord Simon of Glaisdale initiated another debate to call attention to the Parliament Acts and the Salisbury-Addison Convention. He noted that there was always something unreal about the Convention's reference to a manifesto "because a manifesto does not contain just a list of proposals which are committed for approval to the electorate….However, the great thing about the Salisbury convention is that it works. Generally, that is enough in this country….The last comment to make about it is that it is a constitutional convention and not constitutional law. In other words, it is binding only politically and morally but not legally, and only so long as it is convenient."[128]

76. Viscount Cranborne noted that the temporary agreement between his grandfather and Viscount Addison, had been transmogrified into a convention. "The convention says that the House will not vote at Second Reading against a manifesto Bill or pass a wrecking amendment during the remaining stages." He acknowledged that although he was sceptical about the doctrine of the manifesto he found it "difficult to see that it would be wise for this House, reformed or not, to oppose a specific commitment which formed part of the election platform of a new Government."[129]

77. Lord Strathclyde considered that, given the new composition of the House, the Convention deserved to be reviewed, although he did not believe that even the new House had the right to challenge the Commons on Second Reading or by tabling wrecking amendments to core manifesto items. But he shared the concerns expressed by those Lords who had spoken about the status of manifestos. "Election promises can be vague and easily manipulated by governments, who reserve the right to jettison manifesto promises if things change. If governments can have the right, why cannot Parliaments too have a say on circumstances as they change? While the case for giving manifesto promises a relatively easy ride in the first few Sessions of a Government's life is largely unassailable, subject only to Parliament's overriding duty to safeguard the constitution, it does not mean that that should automatically extend to the whole five years."[130]

78. The Attorney General, Lord Williams of Mostyn, argued that "The basis of the Salisbury convention, therefore, does not change by virtue of any alteration in the composition of this House."[131] He did not believe that it had fallen into disuse.[132]

79. The Hunt report, which recommended that key conventions, in particular the Salisbury-Addison Convention, should be codified, was debated in the House of Lords in January 2005. Lord Wakeham said that he thought that codifying the key conventions was not, on balance, the right thing to do.[133] Lord Williamson of Horton, the Convener of Crossbench Peers, commented "I would myself find no difficulty in embedding the Salisbury/Addison convention by including it in an agreement of all major groups to be approved by resolution."[134]

80. Lord McNally, the Leader of the Liberal Democrats in the Lords,[135] thought that by calling for streamlining, better focus and codification of conventions the Labour peers' paper showed a disregard for the realities of parliamentary life.[136] In a subsequent debate on the report of the House of Lords Select Committee on the Constitution, Parliament and the Legislative Process,[137] he argued that "to resurrect a 60 year-old convention that was offered by a Conservative-dominated hereditary House to a Labour government with 48 per cent of the vote, and then to say that that should still apply to a Labour Party that is now the largest party in this House, but is a government with 36 per cent of the vote, is stretching the limits of the convention." [138]

81. In the same debate Lord Carter argued that "Without such an agreement and understanding [on the relative powers of the two Houses] the House of Lords will have the considerable power of a House where the government of the day is always in the minority without the responsibility or accountability of an elected House where the majority party forms the Government."[139] The Government endorsed that point in their written evidence to us.[140]

Evidence

The terms of the Convention

82. In our First Special Report we sought views on whether the Wakeham report's description of the Convention (quoted above) was accurate and sufficiently comprehensive.[141]

83. The Government believe that the key point is the relationship between the two Houses and the primacy of the Commons, and that the Salisbury-Addison Convention gives effect to the requirements of that relationship. They therefore consider that the Convention should continue to mean, in relation to the behaviour of the Lords:

"- A manifesto Bill is accorded a Second Reading;

- A manifesto Bill is not subject to 'wrecking amendments' which remove large parts of the Bill or change completely the effect of the Bill; and

- A manifesto Bill is accorded a Third Reading so that the House of Commons has the opportunity to consider any amendments the Lords wish to propose."[142]

84. In oral evidence Jack Straw, the Leader of the House of Commons, argued that governments "must be assured that Salisbury-Addison will operate in respect of manifesto commitments because it is absolutely fundamental to the contract that is entered into between electors and parties…..In addition to that, governments must be allowed to get their essential legislation which may not be in a manifesto through, without having to resort to the blunderbuss of the Parliament Acts."[143] He added that the Government believe the Convention "applies to Bills whether or not they are introduced in the House of Commons; it must apply to Bills introduced at either end [i.e. in either House], so therefore it is wider than the Parliament Acts."[144]

85. The Opposition too accept that the Convention has worked well, in conjunction with the Parliament Acts, to underpin the primacy of the Commons.[145] They believe "the Lords should not normally vote at Second Reading against a Manifesto Bill, or pass a wrecking amendment to such a Bill."[146] However, the Opposition do not consider the Convention should be applied to any unilateral proposal to alter substantially the nature of the House of Lords.[147] By contrast, in the debate on the House of Lords Bill in 1999, Lord Strathclyde, although he could "find nothing in the Bill to commend", said, "For obvious reasons, we will not support the Second Reading in the Division Lobbies but neither will we support moves not to give the Bill a Second Reading."[148]

86. The Liberal Democrats accept that "the Royal Commission's description elucidates well a common perception of the convention" but argue that it "fails to recognise the rationale for its existence, the basis on which it was agreed and by whom it was agreed." They emphasise that the agreement did not involve either the Liberals or the unaligned peers.[149]

87. Lord Grocott acknowledged that the Salisbury Convention "was an agreement between the Government and the official opposition, it was not an agreement between the House of Commons and the House of Lords or the Government and the House of Lords. Therefore it is obviously open to criticism on the grounds that people in the Upper House who are not members of the official opposition or the government….are not party to the Convention. For the Convention to work it must apply to the whole House of Lords." [150]

88. The Clerk of the Parliaments considered the Salisbury-Addison Convention to be the key convention from which the others flowed. "Its essential feature is that the Lords will not reject a manifesto bill outright but will send it back to the Commons, assuming it started there, in time for differences of opinion to be resolved by exchanges between the Houses…"[151]

Is the Salisbury-Addison Convention still valid?

89. Although there was general agreement that the description of the Salisbury-Addison Convention, as set out in the Wakeham report, is accurate, there was less agreement about whether the Convention, as described, still applies.

90. The Clerk of the Parliaments suggested that the Convention had grown from being a convention between party leaders into a convention between the two Houses.[152]

91. Lord Wallace of Saltaire, the Deputy Leader of the Liberal Democrats in the House of Lords, emphasised that, in the Liberal Democrats' view, "the Salisbury-Addison Convention was a historical negotiation between the Labour Party in the Commons and the Conservative Party in the Lords" and therefore not relevant to current circumstances.[153]

92. Donald Shell, Senior Lecturer in Politics, Bristol University, regards the definition of the Salisbury-Addison Convention as accurate and adequate but would not describe it as a true convention of the constitution. "It was an understanding between party leaders in the House of Lords formulated to meet a particular situation, and an understanding which has endured so long as those circumstances have prevailed."[154]

93. Professor Rodney Brazier, Professor of Constitutional Law, University of Manchester, refers to a "well-known view that the Salisbury-Addison convention ceased to exist when most of the hereditary peers were excluded from membership of the House of Lords in 1999. This view is accepted in Conservative, Liberal Democrat, and other circles, although I understand that it is not the view of the Government."[155] He too was persuaded that the Salisbury-Addison Convention ended impliedly in 1999. The reason for the Salisbury-Addison Convention had disappeared, and the Convention went along with it.[156]

94. Lord Norton of Louth suggested that there was in practice a "wider definition" of the Convention, whereby the House of Lords hardly ever votes against Second Reading of a Government Bill. "[T]he exception would prove the rule". Codifying the narrower version, based on the manifesto, might not be in the interests of the Government.[157] Dr Russell agreed; she thought that "parties are signing up to something broader, which is that really no Bill, except in perhaps the most exceptional circumstances should be thrown out on its second or third reading…therefore I am not really sure what the problem is".[158] Professor Bradley also argued that things have moved on since 1945.[159] The Convention needed "to be taken in today's terms and not linked to the circumstances of the past"; and the House of Lords had a "duty" to give any major government Bill a Second Reading, whether manifesto-based or not.[160]

95. In light of this argument that it is almost a convention that the House of Lords does not reject any government Bill at Second Reading, whether manifesto-based or not, we looked at the number of attempts to defeat government Bills at Second Reading in the Lords since 1970, whether successful or not. They are listed in Appendix 3. At face value there were 13 attempts to defeat a government Bill at Second Reading in the last 25 years, five of them successful. But the list must be compared with the much longer list of government Bills, many of them controversial, to which the Lords have given an unopposed Second Reading over this period. It is evidently uncommon for a government Bill to be assailed at Second Reading in the Lords, and very uncommon for such an attack to succeed. The opposition parties have voted against Second Reading only in highly exceptional circumstances.

96. The Clerk of the Parliaments told us, "It is not a convention that we [the Lords] do not vote against second readings. It is a convention that we do not vote against second readings without giving notice".[161] This convention is recorded in the House of Lords Companion to the Standing Orders, in the footnote to paragraph 6.35. That paragraph sets out the orderly ways of rejecting a Bill on Second Reading in that House, with no suggestion that it is improper to do so, provided notice is given.

Conclusions

The convention has evolved

97. We are persuaded by the strength of the argument that the Salisbury-Addison Convention has changed since 1945, and particularly since 1999. Indeed, this was tacitly admitted by the Government which said, in written evidence, "For a convention to work properly, however, there must be a shared understanding of what it means. A contested convention is not a convention at all."[162] The continued validity of the original Salisbury-Addison Convention is clearly contested by the Liberal Democrats.

98. The Convention now differs from the original Salisbury-Addison Convention in two important respects. It applies to a manifesto Bill introduced in the House of Lords as well as one introduced in the House of Commons.[163] It is now recognised by the whole House, unlike the original Salisbury-Addison Convention which existed only between two parties.

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.

100. In addition the evidence points to the emergence in recent years of a practice that the House of Lords will usually give a Second Reading to any government Bill, whether based on the manifesto or not. We offer no definition of situations in which an attempt to reject a Bill at Second Reading might be appropriate, save that they would include free votes. But to reject Bills at Second Reading on a regular basis would be inconsistent with the Lords' role as the revising chamber. In practice the Lords have the means to express their views on the principles of a Bill without rejecting it at Second Reading, by tabling a non-fatal motion or amendment at Second Reading.

The practicality of codification: definition of a manifesto Bill

101. Each section of the Convention which has evolved over recent years refers to a manifesto Bill. One of the main problems to be addressed in deciding whether it would be practical to codify the Convention is how to define a manifesto Bill.

102. When agreeing the original Convention in 1945, Viscount Cranborne said that he believed "it would be constitutionally wrong, when the country has so recently expressed its view, for this House [of Lords] to oppose proposals which have been definitely put before the electorate"[164](emphasis added). Over 50 years later Baroness Jay of Paddington, the Leader of the House of Lords, restated that position: "it must remain the case that it would be constitutionally wrong, when the country has expressed its view, for this House to oppose proposals that have been definitely been put before the electorate."[165] (emphasis added). How then can the question of whether a proposal has been definitely put to the electorate be decided?

103. The Leader of the House of Commons argued that the final decision on what a manifesto is "has to be a matter for the Commons as the body having primacy, it cannot lie in the role of the Lords for the Lords as an important but necessarily subordinate chamber to say, "Well, it may have said X but we think Y, or, to pick up your phrase on the 1945 manifesto, 'There is a difference between really important election commitments and those which are unimportant.'"[166] Lord Falconer of Thoroton, Secretary of State for Constitutional Affairs and Lord Chancellor, considered that the Convention "would not be convincing if it depended on a very fine reading of each individual manifesto….it needs to be a general sensible reading both of what is in the manifesto and broadly what the government stands for in determining what is covered by it."[167]

104. The Opposition agree with the Wakeham report that "'It is not possible to reduce this to a simple formula, particularly one based on Manifesto commitments.' The Convention was pragmatic in origin - and should continue to be addressed in pragmatic fashion from case to case."[168]

105. The Liberal Democrats consider, however, that "manifestos are not - and, in our view, can never be - detailed enough to constitute a reliable, still less a justiciable basis on which to draft legislation."[169] Manifestos are now much more complex and less precise than they were in 1945.[170] This position has to be seen in the context of the Liberal Democrats' view that the Lords should not reject any government Bill at Second or Third Reading.[171]

106. Lord Williamson of Horton, the Convenor of Crossbench Peers, thought it was reasonable "to consider what are the core elements on which a party goes to the electorate to have a mandate and you have to be careful, because every word in a manifesto may not necessarily be part of a core programme, that that does not tie too much the relations between the two Houses."[172]

107. We agree that legislation often cannot easily be identified as a direct transportation from a manifesto. As several of our witnesses pointed out, the manifesto on which the Labour Party won the 1945 election contained 8 pages: that on which it won the 2005 election was 112 pages long[173] and it would be unrealistic to expect that many, if any, voters agreed with every line of the manifesto.[174]

108. Another potential difficulty relates to how the Convention would apply in the case of a minority government. The view of the Leader of the House of Commons "is that if any coalition or arrangement as in 1977 gains the support of the democratically elected House and endorsed by a motion of confidence then the programme for which they gain that endorsement should be respected by this House [of Lords]."[175]

109. In the Liberal Democrats' view the "circumstances would be entirely different because the question of how the minority government managed to get its manifesto through would involve negotiation within the Commons."[176]

110. Lord Strathclyde believed "If a government has a majority in the House of Commons, a government has a majority in the House of Commons and so the same conventions should apply. Equally where a government is trying to push through some very unpopular measure with a very, very small majority, with a substantial government rebellion, I think it is a clear signal for the House of Lords to take extra special care in examining that measure."[177]

111. There is also the question of whether the Convention applies to matters included in regional manifestos.[178] The Leader of the House of Commons confirmed that the specific issue on which he was questioned was in the UK manifesto but added "even if it had not been a reference in the Welsh manifesto would have been sufficient."[179]

112. There are other obvious difficulties in deciding whether a Bill is a manifesto Bill. But those difficulties are not new. They have existed since the original Salisbury-Addison Convention was articulated in 1945 but have not prevented the Convention from operating effectively in the various political circumstances which have prevailed since then. The Government noted that the House of Lords had voted down a government Bill only three times since 1992. "Once was on the second introduction of the European Parliamentary Elections Bill in 1998, when the Bill had been reintroduced with a view to passing it under the Parliament Acts and killing the Bill on Second Reading was necessary for it to receive Royal Assent in time to allow the necessary secondary legislation to be made. A second occasion was on the Sexual Offences Amendment Bill in 1999, which was a Bill to which a free vote had been applied. Only the third, the Mode of Trial (No 2) Bill in 2000 which was voted down on Second Reading after its predecessor Bill (which had started in the Lords) had been subject to wrecking amendments in Committee, was a Government flagship policy Bill, but was not a Manifesto Bill."[180]

113. We do not recommend any attempt to define a manifesto Bill. Nor do we consider that the difficulties in identifying a manifesto Bill are so substantial that they would prevent Parliament from articulating a convention concerning the House of Lords' practice in relation to manifesto Bills. Given the view of all our witnesses that the House of Lords has not breached the original Salisbury-Addison Convention, we think that there is little likelihood that it will breach the current convention in future. We also expect that it will be as possible to deal pragmatically with any problems which may arise in the future as it has been in the past.

Codification

114. In order to ensure that the convention now reflects an agreement between both Houses, and to give all parties and non-aligned Members in both Houses the opportunity to express their views, each House should have a chance to debate it. However, although both Houses have an interest in the convention, it concerns primarily the behaviour of the House of Lords. We therefore propose that the Lords be given the opportunity to debate and agree a resolution setting out the terms of the convention, and that the resolution be then communicated by message to the Commons. The Commons could then hold a debate on a motion to take note of the message.

A new name

115. In our view the Salisbury-Addison Convention has evolved sufficiently to require a new name which should also help to clarify its changed nature. We recommend that in future the Convention be described as the Government Bill Convention.

110 A full description of the origins and development of the Salisbury-Addison Convention is given in House of Lords Library Notes, The Salisbury Doctrine, LLN 2006/006, June 2006. The document is available at http://www.parliament.uk/documents/upload/HLLSalisburyDoctrine.pdf . Back

111 House of Lords Library Notes, The Salisbury Doctrine, June 2006, p 1. Back

112 Ibid. Back

113 HL Hansard, 16 August 1945, Vol 137, col 47. Back

114 HL Hansard, 4 November 1964, Vol 261, col 66. Back

115 H L Hansard, 19 May 1993, Vol 545, col 1804. Back

116 Ibid, cols 1808-9. Back

117 Ibid, col 1809. Back

118 Politeia Lecture, 4 December 1996. Back

119 Ibid. Back

120 Politeia Lecture, 30 November 1999, pp 8-9. Back

121 Ibid. Back