Joint committee on Conventions - Minutes of Evidence

Joint committee on Conventions Minutes of Evidence

Memorandum by the Liberal Democrat Party

JOINT COMMITTEE ON CONVENTIONS

"Conventions must be understood in the context of the constitutional and political circumstances in which they have been forged"

We welcome this timely opportunity to reassess the validity and value of the "conventions" which are the subject of the Joint Committee's inquiry, with a view to examining the practicality and desirability of some form of codification. We also acknowledge that this process with its fundamental constitutional implications should only lead to changes if there is consensus at least among the three main political parties. We believe the composition and powers of the House cannot be seen independently of each other. To that end we welcome the Committee's decision to look at the matter of the present conventions in the context of continuing reform of the House. We believe, further, that the changed composition of the House since 1999 represents, to paraphrase the Clerk of the Parliaments, a considerably changed set of constitutional and political circumstances in which to see the conventions of yesteryear.

Our starting point is that the balance of power between the two Houses has not caused unnecessary and improper friction, and is not likely to. The shifting balance of power between the legislature as a whole and the executive, on the other hand, justifiably causes increasing anxiety of the onset of an "elective dictatorship". We reject, for example, the notion that any government achieving a majority in the Commons—on an increasingly meagre share of the national vote and on a dwindling turnout of the electorate—should have the unalloyed ability to prosecute its business without the burden of proper checks and balances.

We believe that both Houses should be examining better ways to work together to achieve more comprehensive, more informed and more effective scrutiny of government legislation and executive action. We make some positive proposals to this end. It follows that the thrust of our evidence is designed to strengthen the role of Parliament—as a whole—not to convert the House of Lords from a revising chamber into an impotent debating society.

In this we note the substantial support for our approach (amongst the public, MPs and Peers including Labour Members) indicated by the Constitution Unit paper, Views from Peers, MPs and the Public on the Legitimacy and Powers of the House of Lords, presented to a seminar in the Moses Room of the House of Lords in December 2005.

We have sought to address each of the Committee's questions in turn. Text in bold is taken from the Committee's First Special Report.

QUESTIONS

SALISBURY-ADDISON CONVENTION

The Salisbury-Addison convention is described in the report of the Royal Commission on the Reform of the House of Lords (Cm 4534, 2000) 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." (paragraph 4.21) The convention is also suggested to include the principle that the Lords will not pass wrecking amendments to such a Bill.

1. Is this an accurate description of the convention? Is it sufficiently comprehensive?

1.1 The Royal Commission's description elucidates well a common perception of the convention but fails to recognise the rationale for its existence, the basis on which it was agreed and by whom it was agreed. It is important to separate the Salisbury Doctrine from the Salisbury-Addison convention. The original (1868) Marquess of Salisbury's doctrine of the mandate implies a "referendal function" for the House of Lords to refer to the electorate any matter of dispute between the Houses at the next general election. [1]Salisbury was quite clear that his doctrine should not be interpreted in the sense that Denis (Lord) Carter expounds as a different and broader principle, namely that "the elected chamber" shall finally have its way[2]. Salisbury implored fellow Peers even in 1868 that:

But there is an enormous step between that and being the mere echo of the House of Commons

1.2 In our view, for the House to become such an echo in contemporary circumstances would be more absurd than Salisbury could ever have envisaged.

1.3 The Salisbury-Addison Convention refers to the more contemporary notion of "foreshadowing" which came about with the advent of the Attlee government of 1945. Labour's Viscount Addison came to an agreement with Viscount Cranborne (later the 5th Marquess of Salisbury), not to oppose "proposals which have been definitely put before the electorate"[4] in a manifesto.

1.4 Lord Carter suggests his exposition of the broader convention has "more or less held"[5] since the majority of hereditary Peers were removed. We believe that it is important to make clear that the principle at the root of the 1945 Salisbury-Addison Convention should be that it rests on the primacy of election over the principle of heredity.

1.5 It is worth taking note of three present-day factors which create for Parliament a very different situation to that which faced it when the Salisbury-Addison convention was established. First, in 1945 the Labour Party had a majority in the Commons of some 146, and had gained the support of 36% of the entire electorate; that is, nearly 48% of the vote on a near 73% turnout. By contrast in 2005, the Labour party gained a (still large) majority of 64 having attracted the support of only 21% of the electorate; that is just 35.2% of the vote on a 61.2% turnout. [6]

1.6 Secondly, in 1945, with a very considerable popular mandate, the Labour Party faced a wholly unrepresentative House of Lords, with an inbuilt Conservative majority brought about by virtue of the wholly hereditary Peerage. At that time, the Conservatives had 400 Members in the House of Lords, to Labour's 16 and the Liberals' 63 (despite the latter's very poor representation in the Commons at that time). [7]The present Labour government, having received a rather less convincing mandate, faces a House of Lords whose composition is—paradoxically—more representative in terms of party strength than is that of the Commons.

1.7 Thirdly, we feel bound to point out that this agreement existed only between the Conservative and Labour parties because and on the assumption that the Conservatives were the dominant force in the House of Lords. It did not involve either the Liberals or the unaligned Peers.

1.8 This therefore lends credence to the contention of Rogers and Walters (Clerks in the Commons and the Lords respectively) that

1.9 They go on,

Indeed it is a moot point whether, following the passage of the House of Lords Act 1999, the expulsion of the hereditary members and the ending of the overwhelming numerical advantage of the Conservative Party, the Salisbury convention as originally devised can have any continuing validity.

1.10 As Tony Wright MP put it in the recent Commons debate to set up this committee,

1.11 These altered circumstances include, among others, the context of House of Lords reform in which this inquiry is set, and the increasing propensity of the electoral system used for the House of Commons to distort the voting preferences of the public.

2. Can "manifesto bills" be properly identified? Is a manifesto an appropriate basis for codification?

2.1 It is our belief that legislation cannot easily be identified—either affirmatively or negatively—as a direct transposition from a manifesto. We agree with the contention made by the Leader of the House of Commons in the debate on the Motion to set up the Joint Committee. Mr Straw said, "they [manifestos] are always couched in rather general terms—they raise expectations, but do not do much more than that." [10]

2.2 As the Leader of the House of Commons has already pointed out to the Committee, manifestos (along, we submit, with political and ideological divides) have changed out of all recognition since the Salisbury-Addison Convention's inception in 1945. We suggest that the detail now put before the electorate cannot, after a given election, constitute (as the original Salisbury doctrine implied) matters on which the country has expressed "firm, deliberate and sustained" convictions. This stands in stark contradistinction to the very clear polarisation of political opinion that occurred on the issue of nationalisation in the immediate aftermath of the Second World War.

2.3 Equally, 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.

2.4 An inflated status for the detail of manifestos could, in any event, raise serious and difficult questions for any government about circumstances under which they choose not to implement a given commitment, or in some way to contradict such a commitment. It is not unheard of for governments to change their minds. For example, the Labour Party's commitment in their 2001 manifesto to make the House of Lords more "democratic and representative" remains unfulfilled.

3. Have there been any breaches of convention in this area?

3.1 There has, in our view, been a recent breach of the convention but it is our contention that this breach was on the part of the Government, not that of Peers. Recent debates on Lords amendments to the Identity Cards Bill (now Act) showed that it is the opinion of a number of Members of both Houses that the terms for reliance on the Convention can be breached.

3.2 These wrangles were predicated on the Government's contention that their proposals for a compulsory Identity Card scheme should be granted passage through the Lords on the basis of their manifesto commitment to rolling out the scheme "initially on a voluntary basis"[11]. In the regularly expressed view of the House, Lords amendments to remove the compulsion brought the legislation into line with the manifesto commitment. Lord Foulkes of Cumnock speculated in the subsequent debate that moving to compulsion was to "go beyond and improve on our manifesto commitments"[12], yet this is clearly a point of debate—and one which had not been put before the people in a general election, such that the electorate could direct the House as to how best to treat Government "improvements" to their stated commitments. It is our contention that such "improvements" may be no improvement at all.

3.3 It is hard to see how consensus could be found on codification of a convention whose interpretation is so subjective. As the Leader of the House of Commons has said, manifestos are typically couched in general terms to provide vision and direction, even a programme for a Parliament. In our view, a legislative programme envisioned in such a tentative and deliberately non-legal document cannot be taken as the incontrovertible basis for fully transcribed legislation drafted at a later date.

4. How can the convention be codified? If it is codified, how can it be enforced?

4.1 Expert evidence has already been given to the Committee, which indicates the extent to which conventions are a product of their time, and of specific political circumstance.

4.2 Given that flexibility is an essential feature of the relationship between the two Houses, the matter of how to codify a convention should, perhaps, be the matter of most concern for the Committee and has already been the subject of some confusion within government. The former Leader of the House of Commons, Geoff Hoon MP, had envisaged that codifying the Salisbury Convention "would have to be done by statute, and would be a complex process." [13]Yet, the Committee has resolved—rightly in our view—to "assume that codification will not involve increased oversight of Parliament by the courts." [14]Further, Mr Hoon's successor as Leader of the House of Commons advised Members that it would, in his opinion, "be a grave error to put any description of the convention into legislation, because that would embroil the higher courts in the powers of this House (the Commons) in relation to the other place (the Lords)." [15]

4.3 On this issue, we agree with both the new and the previous Leader of the House of Commons: codification would have to occur in statute and would be a grave error.

4.4 Our constitutional settlement—unlike that of our European counterparts—is one in which no piece of legislation is considered a "higher", constitutional law. As such, the rights of individuals are not protected in any higher body of law (save for the European Convention on Human Rights and common law) over the potential for legislators to make incursions on those rights. At the very time when the Government and Her Majesty's Opposition are giving favourable consideration to the erosion of European Convention rights (as incorporated in domestic law in the Human Rights Act 1998) for the individual, we oppose any attempt to codify in statute a restriction on either part of Parliament's ability to defend those rights.

4.5 A constitutional settlement can either have both restrictions on the rights of the legislative and executive branches and enshrined rights for the individual, or it can have neither. Adding into law the principles of the Salisbury Convention would not just be "complex", as Geoff Hoon suggests, but riven with difficulty; it would require Parliament (and in particular the Lords) to legislate to restrict itself, at a moment when Members on all sides and in both Houses recognise that power is accruing in ever greater measure to the Executive, not least through the use of Secondary Legislation, which we will come on to examine. Additionally, in light of the Committee's acknowledgement that the inquiry "is set in the context of a debate about House of Lords reform",[16] we venture that the Committee should consider Lord Carter's warning that codification of the Lords' conventions into law:

4.6 On the matter of enforcement, we have outlined already the problems associated with defining the vague aspirations of a manifesto document as commitments to specific and detailed legislation. The Committee has envisaged already—and we have agreed strongly with it—that there should be no further oversight of Parliament by the Courts.

4.7 Unless the government intend that the new Supreme Court should act as interpreter of the United Kingdom constitution, much as the Supreme Court does in the USA, it is surely unthinkable that parliamentary arrangements could be subject to external legal adjudication.

4.8 In this light, we have to ask who would oversee and enforce any codification of the Salisbury Convention? Even if the Convention were codified in the Companion to Standing Orders—or in the Standing Orders themselves—the House's recent decision to accept the recommendations of the Select Committee on the Speakership of the House of Lords, and to reject the late Lord Williams of Mostyn's assertion "that the Speaker should act as `guardian of the Companion'",[18] means enforcement could not rest with the Lord Speaker. In any event, the Committee has assumed "that codification will not involve giving new powers to the Lord Speaker." [19]If an enforcement role will not be conferred on the courts and not on the Lord Speaker, who then should be vested with the power to overrule the will of one part of Parliament in favour of the other? Surely not the Prime Minister!

SECONDARY LEGISLATION

INTRODUCTION

Secondary legislation seems to us to have taken on a very considerable importance. The Commons Procedure Committee notes the increased volume of secondary legislation in modern times and has several times suggested that the Commons initiate a sifting committee much like the Lords' Select Committee on the Merits of Delegated Legislation. The 2000 and 2003 Reports propose a Joint Committee to undertake this task for the Houses, yet this recommendation has yet to be heeded by the Government.

In light, however, of the sheer volume of secondary legislation there is to scrutinise, we take note of evidence given by Dr Alexandra Kelso to the Commons Select Committee on Modernisation, in which she identifies the difficulty in finding MPs who are willing to be members of the Delegated Legislation Committee and concludes,

In this light it seems especially important that Peers are given proper powers of scrutiny, and, if necessary, rejection over secondary legislation as it is they—without the constraints placed on MPs' time by constituency commitments and so forth—who are best placed to look at the impact of secondary legislation thoroughly. In addition, the processes for scrutinising European legislation (a cause of much of the burden of secondary legislation) in the House of Commons are at present so woeful that consideration by the House of Lords, in our view, remains a vital part of the scrutiny package. Proposals for a Joint Committee of both Houses to consider matters related to the European Union (made by the Government to the Commons' Modernisation Select Committee in their inquiry on Scrutiny of European Business), which would of course anticipate much of the secondary legislation likely to be brought to Parliament as a result of European measures, have yet to be implemented.

We agree with the Royal Commission's Recommendation 35, which suggests

We take this opportunity explicitly to reject, however, the Royal Commission's Recommendations 41 and 42

The Royal Commission's proposals for the better scrutiny it rightly advocates would, to our mind, provide the Commons—and by extension the government—with the ability to overturn Lords decisions without due consideration, in a period as short as 24 hours. This would, in our view, be a process better characterised as a rubber stamp than a properly improved process of scrutiny.

While the matter of rendering delegated legislation amendable by Parliament is outwith the remit of this Committee, we suggest that constructive discussions about the role of either House in scrutinising Statutory Instruments is impossible without some reference to this persistent anomaly. We believe it should be possible for both Houses to debate, amend and, ultimately to reject secondary legislation.

House of Lords conventions in relation to the Commons on secondary legislation are currently codified thus in the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords (2005):

"The House of Lords has only occasionally rejected delegated legislation. The House has resolved `That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration'." (paragraph 8.02)

5. Is this an accurate codification? Is it adequate?

5.1 This statement seems to us accurate, in that it is an incontrovertible truth that the House rarely rejects secondary legislation. Any further codification should accentuate Peers' right to divide the House on secondary legislation and should be seen within the context of:

5.1.1 the dramatically increased use and importance of secondary legislation in relation both to domestic primary legislation and to European legislation

5.1.2 the need to review the processes by which both Houses scrutinise secondary legislation

5.1.3 the respective abilities of Members of both Houses to deal with the sheer volume of secondary legislation put before it, and in particular to identify so-called "gold-plating" in the implementation of European legislation.

6. Have there been breaches of convention in this area?

6.1 It is difficult to identify breaches of a convention, which says both that the House has not often rejected (rather than should not reject) secondary legislation and that it has the right to do so. The convention would only be breached if the House rejected a considerable volume of delegated legislation in a short period of time, which it would, in our view—and within the terms of the convention as codified—be entirely within its rights to do.

7. Is there a convention that the House of Lords does not reject delegated legislation, with perhaps definable exceptions? Does it depend on prior warning, perhaps when the enabling legislation was considered? Does it depend on whether the Commons have already approved the instrument in question? Does it depend on the views of the scrutiny committees?

7.1 If there is such a convention, it is surely one which the House has broken from time-to-time. There have been two instances in which the House of Lords has rejected an affirmative instrument; the first on 18 June 1968: Southern Rhodesia (United Nations Sanctions) Order 1968; and the second on 22 February 2000: Greater London Authority (Election Expenses) Order 2000. A motion for an address praying against a negative instrument (Greater London Authority Elections Rules 2000) was agreed to by Peers on 22 February 2000.

8. If there is such a convention, how could it be codified? In its codified form, how could it be enforced?

8.1 Defining exceptions to such a convention (and we do not acknowledge, in any event, its existence as a convention so much as a habit)—whether on the basis of the timetable for previously passed enabling legislation, the view of the Commons or some other criterion—would, in our view, attract all of the same problems attendant on codifying (whatever its merits) the Salisbury-Addison convention.

9. Would codification have indirect consequences in practice? For instance, might it make the House of Lords less willing to create new delegated powers?

9.1 Yes, it seems clear to us that the House would be inclined to exercise far more caution over creating new delegated powers than it has hitherto.

9.2 Crucially, Peers may feel less inclined to give delegated legislation sufficient scrutiny if there is not even a theoretical right to reject measures with which the House disagrees. We endorse the evidence of the Select Committee on the Merits of Statutory Instruments

9.3 As Donald Shell argues,

9.4 The cross-party group which published Breaking the Deadlock, supports our view that,

10. Do different considerations apply to certain categories of order, eg those subject to "super-affirmative" procedure?

10.1 The "super-affirmative" procedure refers to that commonly used on orders made under the Regulatory Reform Act 2001 whereby ministers lay orders before both Houses, which each have 60 (concurrent) days to report on the proposal through the auspices of a special committee in each House. At the end of the 60-day period the minister takes account of the committee's representations and may make amendments. The committees then have a further opportunity to report before the order proceeds through the usual affirmative procedure.

10.2 We would welcome the increased use of the "super-affirmative" procedure in relation to secondary legislation but are of the view that the increased scrutiny enjoyed by Parliament under that process should be in addition to, rather than instead of, the ultimate right of rejection. Further, such consideration under super-affirmative procedure would presumably require committees to be set up for each new Act passed in which delegated powers are given or for new committees to be set up on some other basis. While this increased scrutiny would certainly be welcome, it would be utterly absurd for the House to undertake this more rigorous process if it were then deprived of the ability to deploy any "teeth" by rejecting measures which ministers refused to amend as they had been asked, or to the effect of a reasonable compromise.

10.3 The Legislative and Regulatory Reform Bill, currently before the House of Lords, deals specifically with the scrutiny of secondary legislation in our bicameral system and sets out the various categories of order. It would be perverse to undermine its carefully discussed provisions at this juncture by effectively removing one House from the process. We again emphasise the need for these arrangements to be flexible and evolutionary to meet changing circumstances.

The issue of rendering delegated legislation amendable by Parliament is outside the remit of this committee.

10.4 As we have made clear above, we think this matter should be considered by both Houses as a matter of urgency, albeit outwith this Committee.

REASONABLE TIME

The convention that Government business in the Lords should be considered in reasonable time is not currently codified, save that it appears in the report of the Royal Commission and the first report of the Joint Committee on House of Lords Reform (HL Paper 17, HC 171, Session 2002-03).

11. Is there such a convention?

11.1 By definition, given the Lords' deference to the elected House, if legislative measures are introduced in the Lords in a timely fashion, or indeed re-introduced following rejection of amendments by the Commons, such disputes will be resolved—by convention in the Commons' favour—in good time.

11.2 We submit, however, that "a timely fashion" is rightly a fluid concept. First, evidence from the Clerks and the Conservative Party as to how long Bills spend in the House, while instructive, disguise what we consider to be the real issue; that is, how many days' scrutiny each Bill gets in the House.

11.3 Secondly, several factors must surely play a part in determining the amount of time legislation spends being actively scrutinised in the second chamber, not least the amount of time it has spent—relative to the number of clauses in, and the controversy of, the Bill—in the House of Commons. Where Bills have been strictly programmed in the Commons, and it is clear that large parts of the proposed legislation have not had sufficient scrutiny in the Commons, the second chamber—however composed—should surely be at liberty to make sure that proper scrutiny takes place in their part of process.

11.4 Thirdly, the length and complexity of Bills should clearly be taken into account when determining what is a "reasonable time" for proper parliamentary scrutiny. By definition, Bills of a length comparable to the recent Company Law Reform Bill or to the Charities Bill are always going to require an appropriately lengthy period of scrutiny in the second chamber.

11.5 Furthermore, it is worth noting that the Government is more than capable of causing its own delays to legislation. The Charities Bill [HL], for example, passed out of the House of Lords on 8 November 2005, but has not been timetabled for a Second Reading in the Commons until 26 June 2006.

11.6 We suggest that the notion that legislation should be considered in reasonable time is an entirely valid one, but note that even the Government has rowed back considerably from its original manifesto position on this issue. The Committee might reflect on how much of the electorate had regard, when casting their vote at the last general election, to the Labour Party's commitment to legislate for a 60-day time limit on consideration of Bills in the second chamber. We suggest further that consensus as to what is a reasonable period on particular Bills would most sensibly be arrived at by a Joint Business Committee of the two Houses. Such a Committee could seek cross-party consensus immediately after the Queen's Speech on:

11.6.1 draft Bills which would be best candidates for pre-legislative scrutiny

11.6.2 the optimum spread for Bills to be introduced in the two Houses, distributed evenly through the Session, and

11.6.3 implications for the carry-over of specific Bills, in the light of the above.

11.7 In 2002, the then Leader of the House of Commons, Robin Cook, initiated just such an informal meeting after the Queen's Speech.

11.8 We believe that this would be a much more practical and acceptable way for the Government to fulfil its commitment to the electorate.

12. Has it been breached?

12.1 Given the terms above, the convention can only be breached in two circumstances:

12.1.1 Peers' refusal to yield to the will of the elected House.

12.1.2 Government delays in tabling amendments in the Lords.

12.2 It is our view that the latter is much more regularly the cause for delay than the former.

13. Could it be codified? In its codified form, how could it be enforced?

13.1 The Government has committed in its manifesto to legislate on this matter. We oppose this move on the grounds we have laid out for resisting further oversight of Parliament by the courts, in the absence of a proper, written constitutional settlement.

13.2 A time limit could be written into the Standing Orders of the House, but as these are observed to the extent, and in the manner by which, the House itself decides, there seems little utility in so doing.

13.3 Were a specified period of delay codified, it could be written into the Parliament Acts, in order that legislation passed by the Commons after 60 days' consideration by the Lords would automatically enter into force. We would reject any such amendment to the Parliament Acts.

The Labour manifesto for the last General Election contained a commitment to "legislate to place reasonable limits on the time bills spend in the second chamber—no longer than 60 sitting days for most bills".

14. Would codification of the convention in the form of a statutory time limit be practical? How could it be enforced? What would be its practical consequences, including indirect consequences?

14.1 In our view, a statutory time limit would not be practical, as inevitable exceptions would need to be adjudicated on by the courts, which is a matter on which we have already elucidated considerable concerns.

14.2 It would clearly be a disaster for the quality of legislation if the imposition of a 60-day time limit meant that in some cases whole sections of Bills went unconsidered by either House.

14.3 As the Leader of the House said in evidence to this Committee, "scrutiny although it can sometimes be uncomfortable actually benefits governance and our democracy".[27] As such, it would seem absurd to undermine the House of Parliament which has in recent times become the prime scrutiniser of legislation, as calls on MPs' time outside the Chamber have become ever more onerous.

15. Would 60 sitting days be a practical limit? If not, what time would?

15.1 In the 2003-04 session, of the 29 Government Bills put through the Lords, 16 were considered in 60 or fewer days. That is to say nearly half took longer. Of the 28 Government Bills in 2002-03 session, nearly a third took longer than 60 days. Very few Bills in either session took longer than 90 days, but we would in any event submit that a time-limit could only be linked to the time actually considering a Bill, rather than to the time a Bill spends merely in a particular House. The Fraud Bill, for example, was in the House of Lords for 122 sitting days[28] yet received only five days' debate on the Floor of the House. Clearly, therefore, there was no question of a filibuster, but simply that the Government business managers gave precedence to other Bills.

15.2 Any time-limit on proper parliamentary scrutiny would be arbitrary, and could subject the House to a sort of inverse filibustering whereby the Government could get its way simply by causing delays in the parliamentary process.

16. Would there need to be provision for exceptions, or for extending the time limit? How could this work?

16.1 Yes, absolutely. In the event that a time-limit were codified, it should be extendable by a resolution of both Houses.

EXCHANGE OF AMENDMENTS ("PING-PONG")

Ping-pong is a shorthand way of describing the procedures used by both Houses for dealing with amendments proposed to legislation by the other House.

INTRODUCTION

It is our view that ping-pong is more an integral part of the legislative process than it is a convention governing that process. Given that the Lords defers by convention to the elected House, there is, by extension and by definition, a convention that the Lords do not insist on amendments to which the Commons has disagreed in perpetuity. It would be difficult to identify a convention, however, as to exactly how many times amendments might be exchanged.

Further, there are three distinct situations in which ping-pong procedures come into play:

(a) where controversial decisions are taken in the middle of a Session;

(b) where amendments shuttle between the two Houses at the end of a Session and disagreement could mean the Bill is lost unless carry-over is invoked or where the provisions of the Parliament Acts apply; and

(c) where amendments shuttle between the two Houses at the end of a Parliament and where a Bill will be lost in the "wash-up" if agreement is not reached except where the provisions of the Parliament Acts apply.

Clearly, until the Government agrees to introduce fixed-term Parliaments, the end of a Parliament cannot be as easily foreseen as the end of a Session. As a result a codification of the procedures—and, in particular, any consideration of how many times the Lords may insist on amendments disagreed to by the Commons—would need to take clear account of which of the three sets of circumstances are at play.

It seems to us, for example, that the Lords is in a better position to insist on its position where it concurs with public opinion and at the end of a Parliament than where it rails against public opinion or seeks to thwart the endeavours of a government with a fresh mandate in the Commons. The original Salisbury convention, as elucidated by the House of Lords Library, that "the House of Lords [has] an obligation to reject, and hence refer back to the electorate, particularly contentious Bills"[29] seems salient. Of course, what is and what is not contentious is a matter of judgement, and cannot be codified into a strict set of "rules" as to when the House is and is not "allowed" to reject government proposals.

In terms of good management of time, any restrictions placed on the "ping-pong" process by way of codification ought to be on the government not on either House. Officers of both Houses have most trouble facilitating the ping-pong process when the Government introduces amendments at short notice. We therefore recommend that a minimum notice period of 24 hours for any government amendments should be considered.

The pressures of time, particularly at the end of a Parliament, impose huge burdens on the Officers of both Houses. It is a tribute to the competence of the Clerks that this flurry has rarely caused serious error. However, there was one occasion during the passing of the Rent (Agriculture) Act 1977, when the then Lords Clerk placed Lords Amendments in the wrong place in the Bill before it returned to the Commons. The Commons agreed to the Lords' amendments but agreed them in that erroneous context. The Act had received Royal Assent before the error was realised and a short amendment Act had to be introduced in the following Session to rectify the mistake. What, however, might have happened if a similar folly had occurred at the end of a Parliament? Might the subsequent government (if of a different party) have refused to make the Act workable?

While the constitution of Conciliation Committees is outwith the remit of this inquiry, it is our view that if there are problems with the present process, we would suggest these are best dealt with by the appointment of a Joint Committee of both Houses to come up with compromise arrangements where either House has insisted on its position a set number of times.

Such committees were part of parliamentary practice from the 16th to the early 19th centuries, but fell out of use in the course of the developing struggle between the two Houses in the late 19th century. In a more settled relationship between the two Houses it would make sense to reconvene them.

We believe that the present Commons Reasons Committee is an anachronism, which fails to provide any meaningful dialogue between either the Houses or the parties. We would favour its abolition in favour of a serious process designed to resolve persistent dispute between the Houses and achieve co-operation between the two parts of Parliament in a common endeavour to hold the executive to account.

17. What would be the consequences of codifying ping-pong?

17.1 It seems to us that codifying the procedure without clear account of the sets of circumstances outlined above could encourage governments to introduce Bills later in a Session so that where an exchange of amendments occurs prior to Royal Assent, the House is bounced into accepting Commons amendments or to acquiescing where the Commons persists in disagreeing with Lords amendments.

18. What would codification cover?

18.1 Codification would presumably cover the present protocols for the actual mechanics of an exchange of amendments, the procedures for dealing with amendments packaged by the Commons, along with some identification of the number of times the Lords should be able to insist on amendments to which the Commons has disagreed.

18.2 We would suggest that codification, if it is to occur, should concern itself with setting out some clear "rules of the game" for the tabling, in particular, of government amendments with a view to ensuring that each House has appropriate notice of the amendments, or amendments in lieu, which the other wishes to make before it is expected either to debate or to vote on them.

19. Is codification necessary?

19.1 Codification is in our view entirely unnecessary, and would risk setting in stone procedures and protocols which should be, as they are now, flexible in order that exchanges between the Houses can take account of the prevailing political circumstances. Among these circumstances are the subject of the Bill in question, public support for the Lords' view over the Commons, and—in due course—the composition of the House.

20. What effect has packaging of Lords amendments had on the operation of ping-pong?

20.1 We welcome the packaging of amendments on closely related issues, as a way to improve the efficiency of exchanges between the two Houses. However, we are very much of the view that packaging should be a matter for the House on a case-by-case basis and endorse the recommendation of the House of Lords Procedure Committee that

21. How far can the Lords push ping-pong before the practice is considered to have been pushed too far?

21.1 The "House of Lords' awareness of its own lack of legitimacy"[31] certainly contributes to its present attitude toward insisting on its amendments. The legitimacy of the House's actions can be seen to be contingent, however, on the views of those outside. Research by the Constitution Unit shows that a considerable proportion of the public believe "it is at least sometimes justified for the House of Lords to vote against a government bill". Public support for the House of Lords' rejection of Government Bills increases both where there is little public support for the Bill and where there are a considerable number of rebels on the government side in the House of Commons, to some 66% and 70% respectively. [32]

21.2 Further, the Constitution Unit found that a majority (56%) of Labour MPs considered that the House of Lords is justified in rejecting non-manifesto legislation, and 60% see Lords' intransigence justified where a significant minority of Labour MPs have already opposed the Bill in the Commons. [33]

21.3 Clearly, as the House of Lords is not in the habit of rejecting Bills outright, it is in the final exchange of amendments that Peers can insist on changes to legislation which reflect the thinking of rebel MPs in the Commons but which had hitherto been thrown out as a result of the Government's disproportionate majority.

21.4 It is impossible to codify definitively at what point the Lords should abandon its "capacity to work in partnership [with the Commons] to defeat government measures where there is public concern"[34] or disquiet about the merits of Ministers' proposals.

Alternative procedures, eg reconciliation committees, are outside the scope of this inquiry.

21.5 As we have indicated, we believe that disputes between the Houses should be examined by a Joint Committee, charged with seeking consensus on their resolution.

OTHER KEY CONVENTIONS

22. Are there other conventions which this Committee ought to consider?

22.1 The Committee might be well advised to examine the existence of three further conventions on which we set out our views below.

22.2 the propensity (or lack thereof) of the Lords to divide on Second and Third Reading

22.2.1 We believe that the House should not vote down entire Government Bills at Second Reading, as to do so would run contrary to its role as a revising chamber. We can think of only one instance when such a Bill has been rejected at this early stage, and that was by the contrivance of Government and Opposition sides on the European Elections Bill in 1998, in order to expedite use of the Parliament Acts.

22.2.2 We believe that the House should not reject whole Bills at Third Reading either, but we strongly believe that the House must maintain its unfettered right to amend at Third Reading, particularly in light of the Government's penchant for rewriting whole Bills in their committee stages.

22.3 the criteria on which the Government decides in which House it will introduce its Bills

22.3.1 We believe this a matter which should be dealt with by a Joint Business Committee of both Houses to ensure both effective scrutiny and timely consideration of government business.

22.4 the financial privilege of the House of Commons

22.4.1 This principle is, of course, embodied in the Parliament Acts in any event. We do not believe the matter of supply is in serious question as a preserve of the House of Commons, certainly while the composition of the second chamber remains as it is.

22.4.2 That said, the Leader of the House of Commons, in his evidence to the Committee, worried that the House of Lords had sought to "circumvent the financial privilege of the Commons"[35] by setting up the Finance Bill sub-committee of the Economic Affairs Committee. We feel bound to point out that this House of Lords committee does not consider supply, in terms of rates of taxation and the like. Its remit is:

22.4.3 Given that administration of the tax system, and particularly of the tax-credit system has been of such major public interest in recent months, we consider that the House is doing a service in scrutinising the Executive on this matter. While the Committee does not seek to adjudicate on matters of supply, we cannot understand—and certainly do not share—the Leader of the House of Commons' concern that the Lords is infringing on Commons privilege.

David Heath MP

Wallace of Saltaire

22 June 2006