Examination of Witnesses (Questions 295-299)
LORD NORTON
OF LOUTH,
PROFESSOR ANTHONY
BRADLEY AND
DR MEG
RUSSELL
18 JULY 2006
Q295 Chairman: Good morning. Having welcomed
you informally let me welcome you formally to the Committee, Dr
Russell, Lord Norton and Professor Bradley. We are delighted to
have you come to talk to us about conventions and related matters.
I would begin by asking you if you would like to make any opening
statement before we discuss the various detailed issues?
Lord Norton of Louth: There is
only one opening point I would make that may be helpful. In my
own submission I was concerned to call attention to the importance
of defining what is meant by codification, but it strikes me,
having looked at the evidence, that it is equally important to
think about what you actually mean by the term "convention"
because when you look, particularly at the evidence that you have
received, it tends to be used in a very generic sense to cover
everything, and really it strikes me that one needs to try to
distinguish a convention of the constitution from a parliamentary
convention and also from, say, a parliamentary rule and custom,
a practice adopted for means of convenience or, indeed, political
norms, agreements and behaviour. I think those are all distinguishable,
but there is a danger, using convention, more or less to cover
all those and I think that that contributes to the confusion that
has arisen in addressing this.
Professor Bradley: I have nothing
to add to the paper I have put in, but having heard the point
just made I should say that it is something that occurred to me
that my thinking on conventions has mainly been generally with
regard to conventions of the constitution. I have not given the
specific attention to conventions of the two Houses, which possibly
the Clerks to the Houses have and that came out from the evidence
that they gave.
Q296 Lord Higgins: What I think would
be very helpful, Chairman, given the distinction which is being
made between constitutional and parliamentary conventions, would
be to know, of the ones listed is our terms of reference, Salisbury
and so on, in which ones the witnesses regard as falling on one
side of the fence or the other.
Lord Norton of Louth: The only
query in relation to convention and the constitution would be
in relation to what is referred to as the Salisbury Convention
because when you are looking at conventions of the constitution
you are dealing with conventions that are derived to ensure that
the basic relationships operate effectively within our constitutional
arrangements, as distinct from something that is, say, internal
to the institution that facilitates the operation of the institution.
So I suppose the Salisbury Convention is the only one where a
doubt arises as to which category it falls in; all the others
that you are considering I would not regard as coming anywhere
close to being treated as conventions of the constitution.
Professor Bradley: I wonder if
I could be a little more agnostic than that because I said that
I had not previously given my attention to the possibility of
there being parliamentary conventions which are different in their
nature to constitutional conventions. Having said that, I am not
yet very far advanced in how these are different and I would have
thought that the generic term "convention" could well
apply; what I find central to one of the definitional problems
of the term convention is whether one is concerned with practice
or with a rule, and it would seem to me from what I have read
that this is also a problem so far as conventions exist and are
understood within Parliament. Having said that there may be a
difference, I would not wish to over emphasise the nature of that
difference. I cannot, I am afraid at the moment, identify it very
clearly. It seems to me that parliamentary matters are of constitutional
interest, certainly the matters that this Committee is considering
are of the highest constitutional interest, and it would be a
bit of a let out to say that what one has read and understood
about conventions elsewhere do not apply in this particular situation.
What I was saying, in that there could be a more particular understanding
in the parliamentary context, is when the Clerks in their evidence
have indicated that a matter may be a Standing Order, it may be
a decision of the Speaker in the case of the House of Commons,
and it may be referred to in the Upper House in the Companion
to the guidance of procedure. These are specific illustrations
of a status that may be given to a particular form of conduct,
which of course would not exist in the general constitutional
context in at all the same way.
Lord Norton of Louth: It may be
helpful, my Lord Chairman, to offer examples in the importance
of the terminology, which I think is fundamental because I think
the important point between convention, rule and custom is the
extent to which one is enforceable and the other is not; one is
enforceable because people accept it in a self-regulatory sense—it
is self-regulating—and the other is an external body that
can enforce a rule. If you take parliamentary convention, you
could say that it is a convention that an MP who is not dealing
with a letter from a constituent of another Member, but passes
it on, that is a convention because there is no formal mechanism
for enforcement, it is a general agreement; whereas in the House
of Commons the terminology, how the Members address one another
is a practice as custom which is enforceable by the Chair. So
I would regard that as quite an important distinction to be drawn
in terms of the categories that are identified.
Q297 Chairman: Dr Russell?
Dr Russell: I would leave that
discussion to the professors, but perhaps it would be worthwhile
saying a few words about why I think I might be here, particularly
given that I did not put in written evidence although I did refer
the Clerks to some things I have recently written. I have conducted
two major research projects at the Constitution Unit at University
College London, where I have worked for the last eight years.
One resulted in a book which was published in 2000 on lessons
from second chambers in other parliamentary systems for the possible
reform of the House of Lords, so I know a bit about overseas although
in some ways I think I am getting a little rusty on that. The
other project which I am currently undertaking is one looking
at how the Lords may or may not have changed since 1999, which
is a terribly big question and difficult to answer. But the thing
which I think might be of particular interest to you is some survey
work that we have done with Members of both Houses and members
of the public about when they think it is justified for the Upper
House to try and block a government Bill. I also worked for a
couple of years as special adviser to Robin Cook when he was Leader
of the House of Commons, which I suppose is relevant in some ways
to our discussion on the legislative process—but maybe not.
Chairman: Simon Hughes.
Q298 Simon Hughes: Chairman, perhaps
I could pursue the first general point that Dr Russell made about
comparable experience from other bicameral constitutions. I am
sure that your topicality or your knowledge of other legislatures
is better than ours so can you first give us a general answer
as to whether you think there is any country where the situation
is broadly comparable or the most comparable to ours? Which of
the other bicameral legislatures are most similar? Then if you
want to break that down in relation to the issues we have talked
about, namely the right of the second House to send things back
to the primary House, and so on, that would be helpful too. But
it would be very useful if you could give us a snapshot of where
you think is the best place to look for comparable practice and
recent experience?
Dr Russell: Similar in terms of
reliance upon conventions or other aspects?
Q299 Simon Hughes: Similar in terms
of reliance on convention or rule or custom or practice, things
that are not written down in law but which have evolved and governed
the relationship between the two Houses?
Dr Russell: I would invite you
to bring Professor Norton in on this as well because my knowledge
is far from universal—I have studied in some detail no more
than 10 second chambers around the world and there are somewhere
over 60 at the moment. But from what I know I would say that in
terms of reliance upon conventions there is nowhere comparable.
The British constitution is obviously well known for its dependence
on conventions and I think that the same applies to the British
Parliament. Although there are examples everywhere where there
are written constitutions of reliance on convention, and similarly
where the behaviour of Parliament is more codified of reliance
on convention, conventions are more at the fringes and less central
to the working of the House and the bicameral relationship.
Lord Norton of Louth: I would
come back to my earlier distinction, that you could argue that
the British constitution is more dependent upon the use of conventions
than elsewhere, but the nature of our constitution arrangements
is not that we have an unwritten constitution but we do have an
un-codified constitution and therefore we are fairly heavily dependent
on conventions of the constitution in a way that other countries
tend not to be, so in terms of our constitutional arrangements
we are distinctive. I am not sure how distinctive we are in terms
of the legislature itself relying on convention because most legislature
to some extent develop their own practice, procedures and understandings
as to how to go ahead. So I am not sure we are that distinctive
from others in terms of our internal arrangements as distinct
from the relationships that are the heart of our constitution
that are governed by convention.
Dr Russell: One of the things
I think is interesting about the Committee's task is that you
are focusing on the currently controversial conventions rather
than some of the utterly uncontroversial conventions which govern
the relationship between the two Houses. For example, the fact
that the Prime Minister and most senior Cabinet Ministers are
now drawn from the Commons rather than the Lords, I think this
is well established and uncontroversial; the fact that the government
relies on the confidence of the House of Commons and there is
no concept of a confidence vote in the Upper House, these are
very important conventions which are crucial to defining the primacy
of the House of Commons, and I think whilst some of the controversial
conventions would be difficult to get agreement on some of these
less controversial ones might be very easy to get agreement on.
On these aspects there are examples in other countries of where
these things are written down very firmly, so, for example, the
Irish constitution states that the Prime Minister, the Deputy
Prime Minister and the Finance Minister may not be drawn from
the Senate, and many constitutions actually state—it is
not a convention, it is not a Standing Order, it is not even a
law, it is a constitutional provision—that the government
relies only on the confidence of the Lower House not the Upper
House. And that exists in states with both unelected and elected
Upper Houses.
Lord Norton of Louth: The practice
is in a very wide breadth. In some systems very fundamental points
of constitutional arrangements are embodied in convention, so
we are not unique but we are distinct at the level of our constitutional
arrangements.
Dr Russell: Absolutely, and one
of the most interesting cases, for lots of reasons, to compare
with the UK is Australia, and there, although the Upper House
is directly elected and has been since the Australian constitution
was written in 1900, it is a matter of convention that the government
relies only on the confidence of the Lower House and not the Upper
House, and there is never a question of there being a confidence
vote in the Upper House although it is elected and is elected
by proportional representation. So convention, yes, can be important
in other places.
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