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" [Clerk of the Parliaments' written
evidence to the Committee, para 3]
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 Commonson
an increasingly meagre share of the national vote and on a dwindling
turnout of the electorateshould 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 Parliamentas a wholenot 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:
when the opinion of your countrymen has declared
itself, and you see that their convictionstheir firm, deliberate,
sustained convictionsare in favour of any course, I do
not for a moment deny that it is your duty to yield. But there
is an enormous step between that and being the mere echo of the
House of Commons. [3]
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 isparadoxicallymore
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
the Salisbury convention is perhaps more a code
of behaviour for the Conservative Party when in opposition in
the Lords than a convention of the House. [8]
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,
The current conventionsat least, the central
one: the Salisbury-Addison conventionwere forged during
the post-war Labour Government, who had a huge popular majority
while the Conservative party had a huge entrenched majority in
the House of Lords, based on the hereditary peerage. We have only
to remember that context to realise that simply to codify those
conventions now would not tell us much about the relationship
that should exist between the two Houses in very altered circumstances.
[9]
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 identifiedeither affirmatively or negativelyas
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 termsthey
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 notand,
in our view, can never bedetailed 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 debateand 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 resolvedrightly in our viewto
"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 settlementunlike
that of our European counterpartsis 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:
"could result in the ultimate irony of disputes
over the respective powers of the elected House of Commons and
a reformed House of Lords being finally decided by unelected judges."
[17]
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 alreadyand
we have agreed strongly with itthat 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
Ordersor in the Standing Orders themselvesthe
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,
there can be a great deal of hand wringing [that]
so much of our lawmaking comes through the secondary legislative
process, but until a sufficient number of MPs are willing to step
up and actually do something about it you can have as many discussions
about it as you like but they are not going to get anywhere. [20]
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 theywithout
the constraints placed on MPs' time by constituency commitments
and so forthwho 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
There is a strong case for enhanced Parliamentary
scrutiny of secondary legislation. The reformed second chamber
should make a strong contribution in this area. [21]
We take this opportunity explicitly to reject,
however, the Royal Commission's Recommendations 41 and 42
Where the second chamber votes against a draft
instrument, the draft should nevertheless be deemed to be approved
if the House of Commons subsequently gives (or, as the case may
be, reaffirms) its approval within three months. [22]
Where the second chamber votes to annul an instrument,
the annulment should not take effect for three months and could
be overridden by a resolution of the House of Commons. [23]
The Royal Commission's proposals for the better
scrutiny it rightly advocates would, to our mind, provide the
Commonsand by extension the governmentwith 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 viewand within the terms of the convention as codifiedbe
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 criterionwould, 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
In our view, given that Parliament cannot amend
secondary legislation, there is a case for either House urging
amendment on the Government in debate: if the Government do not
undertake to change their policy, it must then be open to the
House to reject that item of secondary legislation. Otherwise
scrutiny of the policy in the instrument by the House and its
Committees is of limited usefulness. [24]
9.3 As Donald Shell argues,
The kind of scrutiny the House of Lords can bring
to bear is different from that of the Commons. And scrutiny to
be effective must be backed up with a modicum of power. [25]
9.4 The cross-party group which published
Breaking the Deadlock, supports our view that,
The fact that vetoes do not happen does not mean
that the Lords' power is worthlessindeed it may simply
indicate that government takes the chamber's views properly into
account before statutory instruments are introduced. [26]
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
resolvedby convention in the Commons' favourin 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 spentrelative to the number of clauses
in, and the controversy of, the Billin 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 chamberhowever
composedshould 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 chamberno
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 proceduresand, in particular, any consideration of
how many times the Lords may insist on amendments disagreed
to by the Commonswould 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, andin due coursethe 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
Packages from the Commons should be considered
by the House only if they are confined to single or closely related
issues, not disparate issues joined together simply for reasons
of convenience. [30]
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:
to consider aspects of the Finance Bill 2006
from the point of view of tax administration, clarification and
simplification[36]
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 understandand certainly do
not sharethe Leader of the House of Commons' concern that
the Lords is infringing on Commons privilege.
David Heath MP
Wallace of Saltaire
22 June 2006
1 C C Weston, "Salisbury and the Lords, 1869-1895",
in C Jones and D Lewis (eds) Peers, Politics and Power: The
House of Lords, 1603-1911, (1986), pp 463-464, quoted in House
of Lords Library Note, The Salisbury Doctrine, LLN 2004/05,
p 2. Back
2
D Carter, "The Powers and Conventions of the House of Lords",
Political Quarterly, Vol 74 (3), July-September 2003, p
320 (emphasis added). Back
3
Parliamentary Debates, Third Series, 26 June 1868, vol
193, col 89, quoted in House of Lords Library Note, The Salisbury
Doctrine, LLN 2004/05, p 4 (emphasis added). Back
4
HL Hansard, Vol 137, Col 47, 16 August 1945, quoted in
House of Lords Library Note, The Salisbury Doctrine, LLN
2004/05, p 22. Back
5
D Carter, "The Powers and Conventions of the House of Lords",
Political Quarterly, Vol 74 (3), July-September 2003, p
321. Back
6
M Leeke, UK Election Statistics 1945-2003, (House of Commons
Research Paper 03/59), 1 July 2003; Centre for Comparative European
Survey Data, British Election Studies Information Site (http://www.besis.org) Back
7
D Butler and G Butler (eds), Twentieth Century British Political
Facts 1900-2000, (Basingstoke: Palgrave, 2000), p 228. Back
8
R Rogers and R Walters, How Parliament Works, 5th edition,
2004, p 222 quoted in R Kelly, House of Lords: Conventions
(House of Commons Library, Standard Note: PC/4016), 5 May
2006, p 4. Back
9
HC Deb, Col 456, 10 May 2006. Back
10
HC Deb, Col 445, 10 May 2006. Back
11
Labour Party, Britain Forward Not Back, 2005 General Election
Manifesto, p 53. Back
12
HL Deb, Col 1231, 15 March 2006. Back
13
G Hoon, "Lords reform is long overdue. But elections could
make us like Italy", Independent on Sunday, 5 March
2006. Back
14
Joint Committee on Conventions, First Special Report, HC
1189/HL 189, p 4. Back
15
HC Deb, Col 444, 10 May 2006. Back
16
Joint Committee on Conventions, First Special Report, HC
1189/HL 189, p 3. Back
17
D Carter, "The Powers and Conventions of the House of Lords",
Political Quarterly, Vol 74 (3), July-September 2003, p
321. Back
18
HL Select Committee on the Speakership of the House, The Speakership
of the House of Lords, HL92, para 9, p 6. Back
19
Joint Committee on Conventions, First Special Report, HC
1189/HL 189, p 3. Back
20
Dr A Kelso, Corrected Transcript of Evidence to the Commons Select
Committee on Modernisation, Q54, 17 May 2006, HCð ñ1097-ii. Back
21
Royal Commission on the Reform of the House of Lords, A House
for the Future, Cm 4534, January 2000, p 69. Back
22
Royal Commission on the Reform of the House of Lords, A House
for the Future, Cm 4534, January 2000, p 77. Back
23
Royal Commission on the Reform of the House of Lords, A House
for the Future, Cm 4534, January 2000, p 78. Back
24
HL Select Committee on the Merits of Statutory Instruments, Memorandum:
Conventions on secondary legislation-evidence to the Joint
Committee on Conventions, Ev 135, 24 May 2006 (emphasis added). Back
25
D Shell, "A proper second chamber is needed now more than
ever", Parliamentary Brief, June 2006, p 11. Back
26
Kenneth Clarke et al, Reforming the House of Lords-Breaking
the Deadlock, UCL Constitution Unit, January 2005, pp 16-17. Back
27
Joint Committee on Conventions, Oral Evidence, 13 June
2006, Q9. Back
28
Clerk of the Parliaments' written evidence to the Committee, Annex
3, Ev 95. Back
29
House of Lords Library Note, The Salisbury Doctrine, LLN
2004/05, p 1. Back
30
House of Lords Procedure Committee, 1st Report of Session 2004-05,
(HL48), (London: The Stationery Office, 2005), p 4. Back
31
M Russell, Reforming the House of Lords: Lessons from Overseas
(Oxford: Oxford University Press, 2000) p 138. Back
32
M Russell, Views from Peers, MPs and the Public on the Legitimacy
and Powers of the House of Lords, (Paper to seminar in the
Moses Room, House of Lords), 12 December 2005, p 3. Back
33
ibid. Back
34
ibid, p 4. Back
35
Joint Committee on Conventions, Oral Evidence, 13 June
2006, Q42. Back
36
Sub-committee on the Finance Bill, House of Lords Economic
Affairs Committee website, (http://www.parliament.uk/parliamentary_committees/lfinbill.cfm) Back
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