Appendix 7: Supplementary written evidence
on Clause 2 from Mr Mark Harper MP
CLAUSE 2 OF THE DRAFT HOUSE OF LORDS BILL
Paper from the Minister for Political and Constitutional
Reform
1. This paper explains the Government's thinking
in drafting clause 2 of the draft House of Lords Bill, and the
alternatives that were considered.
2. The Government has agreed that, in principle,
there should be no fundamental change to the relationship between
the two chambers and the House of Commons should retain its primacy.
3. The draft Bill deals with membership of the reformed
House of Lords and the Government has made clear that it does
not propose to change its functions. It will continue to scrutinise
legislation, hold the government to account and conduct wider
investigations. The Government does not intend to change the powers,
rights, privileges or jurisdiction of the House of Lords (with
limited exceptions eg new power to expel members).
4. However, a reformed House of Lords with an electoral
mandate could be more assertive. The Government does not believe
that that is incompatible with maintaining primacy of the House
of Commons or that conventions would not be able to develop to
deal with a new situation
5. The primacy of the Commons is not simply a matter
of convention and of the Parliament Acts of 1911 and 1949. It
is not only the conventions governing the relationship between
the Houses which are relevant to primacy. Primacy also rests in
the fact that the Prime Minister and most of the Government of
the day are drawn from the House of Commons. The whole of the
House of Commons will be renewed at each election, and that will
clearly be the election through which the Government is chosen.
Only a proportion of the House of Lords will be elected at each
election.
6. This paper discusses whether and how this relationship
could be set out in primary legislation and provides the background
into the issues the Government took into consideration when producing
clause 2 of the draft Bill.
7. There are a number of approaches to preserving
the primacy of the House of Commons. The Government's preferred
approach is to preserve the current situation of a non-legislative,
flexible relationship between the two Houses which can evolve,
but to state on the face of the legislation that changes made
by the Bill itself are not to affect the current powers. However,
we also considered three other options which are detailed below.
Government's preferred approach: a general clause
8. This approach involves a clause in the draft Bill
which sets out that the reformed House of Lords is a House of
Parliament; a statement of the primacy of the House of Commons;
and a statement that the Bill itself, other than where explicitly
stated, is not to affect the privileges, powers, rights and jurisdiction
of the House of Lords or the conventions governing the relationship
between the two Houses of Parliament.
9. The advantages of this approach are that the Parliament
Acts would be preserved but not expressly extended, limited or
otherwise affected; the position of the House of Commons as the
primary chamber would be given statutory underpinning (in addition
to that already afforded under the Parliament Acts) and the conventions
would be recognised but not defined. This approach also leaves
room for flexibility in the future. Although the clause states
that "This Act does not affect the conventions…",
the conventions can by their nature continue to evolve in response
to other circumstances, just not as a direct result of the Act's
provisions regarding the transition from the present House of
Lords to the reformed House.
10. The possible disadvantage of this approach is
that although the clause serves to underline the primacy of the
House of Commons and the relationship between the Houses at the
point of transition, permitting a degree of evolution and flexibility
will be at the cost of some precision and may not guard against
a gradual shift in the relationship between the Houses so far
as it exists in convention. This is of course always against the
long-stop of the Parliament Acts, which already provide a legislative
expression of Commons supremacy.
Other options considered
Option 1: Set out each of the powers and the relationship
between the two Houses in statute.
11. This would be the most detailed form of codification,
and would involve setting out in full the relationship between
the two Houses, defining the primacy of the House of Commons,
assigning powers and functions to each House (because it would
be difficult to discuss powers and the limits on them without
reference to what each House does), and defining all the aspects
of financial privilege and the scope of each of the conventions.
12. The advantages of this would be a degree of certainty
and precision, which would be a settled and agreed basis on which
the relationship between the two Houses would then have to operate.
Statutory codification might also serve to reassure those concerned
about the gradual erosion of the primacy of the House of Commons
as the reformed House of Lords gained in legitimacy and assertiveness.
13. However, there are disadvantages of this approach.
In particular, to define in statute the relationship between the
two Houses could be a broader exercise than setting out those
elements outlined above, and could extend to the operation of
Parliament as a whole. Second, to define each element would be
extremely difficult to achieve, because it would require agreement
between the Houses and Government as to the existing relationship
with a far greater degree of precision than even the report of
the Joint Committee on Conventions achieved. This would include,
for example, defining in statute each of the elements of financial
privilege; when it could be waived; what constituted a manifesto
commitment and what kinds of amendments the House of Lords would
be permitted to make before they were "wrecking amendments"
for the purposes of the Salisbury-Addison convention; and the
exceptional circumstances in which it would be permissible for
the House of Lords to reject secondary legislation.
14. This exercise would itself affect the nature
of the relationship between the Houses, which is based on convention
and flexibility, with use of the legislative long-stop of the
Parliament Acts as a last resort. It could also inadvertently
affect the existing relationship, for example in the inter-relationship
between the Parliament Acts and the Salisbury-Addison convention
once the latter was given statutory status.[469]
15. Finally this option would inhibit flexibility
in further development of conventions in response to political
circumstances—they would cease to be conventions—and
would be the option most likely to increase the role of the courts
in scrutinising Parliamentary procedure. The courts will generally
be reluctant to enter into Parliament's domain, in accordance
with parliamentary privilege. However, the courts were in no doubt
that they had jurisdiction to consider the challenge to the Parliament
Acts in the Hunting Act case, on the basis that the case concerned
a matter of statutory interpretation (s.2 of the 1911 Act) which
was a matter for the courts. In approaching a complete statutory
codification of the relationship between the Houses, the courts
would be likely to continue to respect Parliamentary privilege,
so not all aspects would automatically become justiciable, but
challenges would lead to tension as to where the boundary between
that privilege and questions of statutory interpretation properly
lies, and in particular the use to which proceedings in Parliament
may be cited in cases concerning questions of interpretation.
Option 2: As Option 1, but in addition amend the
Parliament Acts to include further key elements of privilege,
for example the Salisbury-Addison convention and/or aspects of
financial privilege
16. This option would involve a general clause similar
to that in clause 2 of the draft Bill, but at the same time codifying
in statute key elements of the relationship which were thought
to warrant legislative protection. These might perhaps include
the Salisbury-Addison convention and some aspects of financial
privilege, for example in relation to Bills of Aid and Supply.
The advantages of such an approach would be that the most important
elements of the existing relationship would be preserved and defined
in statute, leaving the other conventions to evolve. It would
not therefore require the wholesale approach of Option 1, but
could give greater protection to key conventions than clause 2.
17. However, there are a number of problems with
this kind of "partial codification" approach. Legally,
even a more limited codification would lead to many of the problems
outlined above in relation to Option 1, in particular of pinning
down the existing scope and of definition. For example, in relation
to the Salisbury-Addison convention, it would be necessary to
set out what "quality" of electoral commitment triggered
the convention. Manifesto commitments may be open to different
interpretations, and there is a question of whether in fact reference
to a "manifesto commitment" is convenient shorthand
for any commitment which has been specifically endorsed by the
electorate. Similarly, the question of how the convention applied
to Lords amendments, and in particular when an amendment was a
"wrecking amendment", could be very difficult to define.
There would then be the question of the inter-relationship between
the legislative and non-legislative aspects of the convention,
for example, whether legislating would end the practice, recognised
by the Joint Committee on Conventions, of the Lords giving a second
reading to any Government Bill, whether in the manifesto or not.
There are additional issues in relation to the practicalities
of any such legislation. For example, although it might be possible
to legislate that the House of Lords may not vote against a Manifesto
Bill on second reading, it would not be possible to legislate
to require them to consider such a Bill once they had given it
a second reading without rapidly getting into the details of parliamentary
procedure. In legislative, as opposed to conventional terms, there
is only a small space which is not already occupied by the Parliament
Acts. Similar issues would arise as regards codifying financial
privilege, in particular, in separating out its constituent parts
with sufficient precision.
18. Finally, the Hunting Act challenge suggests how
the courts might view their role in relation to an extension of
the Parliament Acts, so for example, they might be prepared to
consider whether a particular piece of legislation satisfied the
definition of a "manifesto bill", however defined, while
not examining the Parliamentary proceedings in relation to that
Bill.
Option 3: Remain silent on the face of of the
Bll in relation to each of the powers and the relationship between
the two Houses in statute.
19. As a matter of law, primary legislation does
not need to deal with powers and the relationship between the
two Houses. If the Bill was silent on powers and the relationship
between the Houses, the current position would not be changed
by the Bill.
20. However, including a general clause would provide
clarity and provide reassurance that the House of Commons would
retain its primacy.
Conclusion
21. The Government came to the conclusion that a
general clause was the best way of achieving its intentions. Clause
2 was therefore included in the draft Bill. However, the Joint
Committee on the draft House of Lords Bill, as a Joint Committee
of both Houses, is in a good position to consider this issue and
the Government looks forward to its report.
Cabinet Office
8 March 2012
469 For example, the convention would prevent a "manifesto
bill" from being "killed" in the second session
in which it was introduced, but there is a question about how
this would operate with the requirements of the Parliament Acts.
For example, the European Parliamentary Elections Bill was initially
rejected by the Lords and had to be reintroduced under the Parliament
Acts. However, time was running out to put in place the legislation
for the European Parliamentary elections. By agreement with the
Opposition, the Bill was voted down at Second Reading in the second
session, which enabled it to proceed straight to Royal Assent.
A question would arise as to how to preserve this element of flexibility
if the convention were codified. Back
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