Council of the Law Society of Scotland
GENERAL COMMENTS
The Council of the Law Society of Scotland is the
statutory regulator of solicitors in Scotland. In terms of section
1 of the Solicitors (Scotland) Act 1980 the Council has the objects
of the promotion of the Solicitors' profession in Scotland and
the promotion of the interests of the public in relation to that
profession. Accordingly the Council is concerned to contribute
to the process of legal and constitutional change and to monitor
legal developments.
The Council has considered the White Paper entitled
"House of Lords Reform Draft Bill". The Council has
the following comments to make:-
INTRODUCTION
The Council takes the view that many aspects of the
reform of Parliament and in particular reform of the composition,
role and powers of the House of Lords are political issues on
which Council cannot have a view.
However there are some considerations which ought
to be taken into account when proposing reform of the House of
Lords. In particular, there are many aspects of the work of the
House which should be preserved and not affected by reform.
THE BASIC MODEL
The Council is of the view that the present bicameral
system works reasonably well. It ensures that the unwritten UK
constitution is provided with a system of checks and balances.
The White Paper "House of Lords Reform"
(Cmnd 3799) published in 1968 stated there were seven functions
of the House:
i) its appellate role (abolished by the Constitutional
Reform Act 2005);
ii) its role a forum for debate;
iii) its revising role in relation to Commons'
bills;
iv) its initiating role in relation to legislation;
v) dealing with subordinate legislation;
vi) scrutiny of the executive; and
vii) the scrutiny of private legislation.
Reform of the House has been debated recently through
a number of White Papers and consultations and legislative debate.
The White Paper "Modernising Parliament—Reforming
the House of Lords" (Cm 4183) analysed the role of the House
of Lords as being legislative, deliberative, interrogative and
judicial.
The Royal Commission Report, A House for the Future
(Cm. 4534) published in January 2000, proposed that the House
should basically be a revising and advisory chamber intended to
complement but not to undermine the House of Commons. It proposed
that the House should be a majority appointed House, with a statutory
Appointments Commission answerable to the House; and responsible
for nominating all appointed members of the House, including those
from the political parties.
The Government White Paper, The House of Lords—Completing
the Reform, (Cm 5291) published in November 2001. The White
Paper endorses the Royal Commission's vision of the role and importance
of second chamber and accepts broad framework on membership.
In particular, it accepts that the House should continue to be
80% appointed and that the Appointments Commission should be moved
on to a statutory basis.
Furthermore, the House of Lords Act 1999 provided
for the removal of the sitting and voting rights of the majority
of hereditary Peers and established a mechanism for retaining
90 hereditary Peers through a process of election. In May 2006,
the Government supported the establishment of a Joint Committee
to examine the conventions governing the relationship between
the two Houses of Parliament. The then Government also set up
cross-party talks on House of Lords reform. The consensus reached
in these talks was reflected in the White Paper published in February
2007 [The House of Lords: Reform. The Stationery Office. (2007)
(Cm 7027)].
Although other legislatures in the context particularly
of written constitutions can operate within a unicameral framework
and fulfil many of these functions other structures and procedures
are invariably constructed around the single chamber in such constitutions
such as presidents or heads of state with powers to reject legislation
and constitutional courts with extensive powers to nullify legislation.
Single chamber legislatures may also need far reaching pre-legislative
consultation procedures.
The arrangements under the Scotland Act 1998 and
the Constitutional Reform Act 2003, giving a role to the United
Kingdom Supreme Court and under the Scottish Parliamentary procedures
for a consultative and investigative role for Parliamentary Committees
reflect the need to supplement a unicameral legislature by creating
processes to ensure adequate scrutiny of legislative proposals
and enacted legislation.
Given that there would be a need for alternative
structures in any case the Council takes the view that the existing
bicameral nature of Parliament should remain.
The Council is of the view that the House of Lords
fulfils a useful function in assisting the House of Commons to
hold the Executive to account. The House of Lords given its non
elected basis is necessarily the subordinate partner in this enterprise.
That does not imply that the House does not have an important
role to play. The very fact that the House is not subject to the
same political pressures which apply in the House of Commons means
that a more dispassionate view can be taken of the actions of
the Executive. Time can be allowed for the raising of issues which
could be lost in a House of Commons setting and the expertise
of Peers can be directed into areas of the Executive's activity
which may not receive similar scrutiny in the House of Commons.
The Council notes that the Government intends
to retain the name "House of Lords" at least for pre-legislative
purposes.
In the Council's view there is no particular concern
about the name of any reformed chamber. Suggestions such as "Senate"
or "Legislative Council" are well known but carry certain
historical and constitutional inferences which may not be entirely
appropriate for the reformed chamber. "Second Chamber"
or " Upper House" may be more reflective of the nature
of the reformed body. On the other hand, some may consider that
the retention of the existing name emphasises historical continuity
and signifies elements of the development of the constitution
and democracy in this country.
ROLES AND FUNCTIONS
Legislation
The House of Lords is a valuable revising chamber
but there are factors which inhibit its capabilities. Some of
these relate to its composition, others stem from the constraints
put on the House and the provisions of the Parliament Acts. It
is these latter issues on which the Council to concentrate.
The Council has had many experiences with legislation
which has been substantially amended during the course of its
passage through the House of Lords. Sometimes amendments proposed
by the Opposition or by Cross bench Peers have had success in
the House of Lords which they did not enjoy in the House of Commons.
Frequently the Government takes advantage of the opportunity presented
by the passage of the bill in the House of Lords to make changes
either as a result of further consultation or political reassessment.
The locus poenitentiae, or chance to think again, which the House
of Lords provides in relation to legislation should not be underestimated.
It is very useful for all parties.
When bills are introduced in the House of Lords
they frequently undergo a process of debate and examination which
is informed and productive. Improving amendments especially to
law reform bills are a feature of Lords scrutiny. The Council
has been involved in many such measures by suggesting amendments
and commenting on bills. Even if amendments are not achieved in
the House, Ministerial statements which could be employed for
the purposes of interpreting legislation in terms of Pepper v
Hart [1993] A.C. 593 can be extracted in debate. This can be as
useful as securing amendments.
However Peers are hampered in this work by a general
lack of resources. Inadequate, crowded accommodation and insufficient
support, barely offset by helpful library staff, restrict the
ability of Peers to contribute to debates. The efficiency of the
chamber would be dramatically improved if more resources including
adequate meeting rooms, up-to-date communications facilities,
such as e-mail and internet access and improved secretarial facilities
were more widely available. In this connection, Clause 59 of the
draft bill makes provision for the House of Lords allowances scheme.
If properly established and funded this will enhance the ability
of peers to contribute to the work of the House. However, if
the current limitations continue to impair the House's efficiency
in an environment where not all Peers who are entitled to attend
do so, the problem will only be exacerbated in a reformed chamber
where attendance is increased.
The Parliament Acts constrain the powers of the
House of Lords. Under this legislation the Lords must pass without
amendment any bill certified by the Speaker as a money bill within
one month of its being sent to the Lords. Money bills are those
which seek to raise taxes, impose charges on the Consolidated
Fund, supply, deal with appropriation, receipt, custody, issue
or audit of public accounts, or the raising or guarantee of loans.
Money bills do not include those relating to local taxation. The
Lords only has power to delay other bills except those to which
the Parliament Acts do not apply, for example a bill to extend
the maximum duration of Parliament beyond five years, local and
private legislation and public bills which confirm provisional
orders. The Parliament Act procedures have only been used sparingly
since their enactment principally because the Lords accept the
democratic mandate which the House of Commons hold.
The Council is of the view that the role of the
House of Lords in relation to primary legislation is a necessary
aspect of parliamentary scrutiny.
In relation to secondary legislation the Council
is of the view that an enhanced role for the House could include
operating as a clearing house for Orders in Council, regulations
and other forms of delegated legislation. It should be possible
to amend secondary legislation. At present secondary legislation
cannot be amended, it can only be approved or rejected. Due to
constraints imposed by convention rejection is very rare and there
is consequently little that can be done to change subordinate
legislation once it is introduced. The creation of procedures
to allow the amendment of subordinate legislation should be considered.
Scrutiny
The Council is of the view that the House's role
in scrutiny of the Executive is a most important one. The substantial
expertise of Peers ensures that the debates in the House are of
high quality and recognised authority. Any change in the functions
of the House should preserve this quality. For example, the work
done by House of Lords Select Committees or Joint Committees is
distinct from that carried out by House of Commons Committees.
Because House of Lords Committees are not identified with the
work of particular Government departments these committees can
take more strategic overviews and comment on strategic issues.
The House plays a substantial part in holding
Ministers to account. The Council supports the existing framework
where Government departments are represented in the House and
where Ministers can be questioned both in the Chamber and in Committee.
If the existing procedures continue there would be no need for
Ministers in the House of Commons to be able or to be required
to attend to answer questions.
The revised chamber could take a more active role
in dealing with EU policy and legislation. A structure which could
allow liaison between the House and the EU Commission and EU officials
would be particularly useful especially given the need for early
representations to be made if EU proposals are to be affected.
This is especially important following the Treaty on European
Union's role for national legislatures. A liaison group between
the House and MEPs would also serve to maximise the contribution
of the revised chamber. The Council does not believe however that
a structure which would give MEPs a specific role in the revised
chamber would be appropriate.
The revised chamber could also enter into bilateral
or multilateral relations with the Upper Chambers of other EU
Member States. The pooling of common experience and the resultant
exchange of views could improve the efficiency of the House especially
in relation to EU law and policy.
The revised chamber could also enhance its role
in relation to other aspects of international law. Special attention
could be given to World Trade Organisation matters or to proposed
treaties which could result in new international obligations for
the UK.
Finally, the revised chamber could assume a liaison
with the structures of devolved government to ensure the free
flow of information between Westminster and the Scottish Parliament,
the National Assembly for Wales and the Northern Ireland Assembly.
It should not be forgotten that the United Kingdom
Parliament still has important legislative functions in relation
to Scotland in the context of UK legislation on reserved areas
under the Scotland Act 1998 (and will continue to do so in the
context of the current Scotland Bill). The revised chamber will
therefore have to continue to be aware of developments in Scotland
and will have to take account of Scottish interests when legislating
on reserved areas. Adequate arrangements will be needed to ensure
that there are sufficient Peers from Scotland in attendance in
the House. Consideration will also have to be given to the proper
resourcing of these Peers (see the comments at Clause 59 of the
draft Bill above).
Powers
The Council is of the view that any change to
the House should have as one of its aims legislation which is
clear and which gives prominence to the House of Commons as the
elected chamber. If the second chamber were to be given a greater
degree of democratic legitimacy it would be necessary to review
the relationship between the two Houses of Parliament. In particular
the Salisbury Convention would require to be revisited. At the
very least it should be committed to legislative form. It may
be that reducing the time by which the second chamber can delay
primary legislation under the Parliament Acts would be sufficient
to signify the prominence of the House of Commons. However extending
the advantages of the Parliament Acts to government bills which
have begun in the Lords could convey the impression that such
measures are of equal importance to the government of the day
as those which are introduced in the Commons. This could be a
recipe for confrontation between the Houses.
Composition
The issue of composition of the House of Lords is
essentially a political matter. However it is possible to agree
with the broad range of characteristics which members of the reformed
chamber could exhibit as follows:-
- greater democratic legitimacy,
but not to the extent that the Chamber could challenge the pre-eminence
of the House of Commons;
- a greater degree of independence
of the Executive and of political parties than the House of Commons;
- a non-partisan approach;
- recognised expertise in a range
of areas;
- breadth of experience, involving
at least a proportion of people who are not professional politicians;
- a long-term perspective;
- being representative of the
nations and regions of the UK;
- having access to knowledge
and experience of the EU;
- legal knowledge;
- being representative of a range
of faith communities;
- being more representative of
society as a whole than the present House of Lords.
DETAILED COMMENTS ON THE DRAFT HOUSE OF LORDS REFORM
BILL
Part 1—Composition of the House of Lords
The Council has no comment to make on this point
as the balance between elected, appointed, spiritual, ministerial
and transitional members of the House is a political issue.
Part 2—Elected Members
The Council is of the view that the term for elected
members in Clause 6 may be too long. A ten year term may be more
appropriate.
Part 3—Appointed Members—term
The Council is of the view that the term for appointed
members in Clause 19 may be too long. A ten year term may be
more appropriate.
Clause 16—The House of Lords Appointment
Commission
The Commission's membership should reflect the
nations and regions of the UK. A former member of the Commission
should not be appointed and should not seek election to the House
of Lords until five years have elapsed, since he or she was a
member of the Commission.
Part 4—Lords Spiritual
The Council is of the view that provision should
be made to ensure the representation of other faiths as well as
the Church of England—otherwise the Council has no comment
to make.
Part 5—Ministerial Members
Clause 34—Ministerial members
Clause 34(7)(e) provides the Prime Minister with
the power to make an order concerning the disqualification of
persons who are or have been ministerial members from being members
of the House of Lords under another description. This should
not be a matter for subordinate legislation but should be included
in the Bill.
Part 6—Transitional Members
The Council has no comment to make.
Part 7—Disqualification
Clause 36—Disqualification from being
an elected member
Clause 36(1) details the disqualification conditions.
The conditions are broad but do not include conditions relating
to mental Health detentions or Guardianship Orders. The Council
is of the view that the conditions should be re-examined from
this perspective. Clause 36(f) provides that disqualification
follows if a person has been committed of a serious offence which
is defined in Clause 47. There is a mismatch between the offence
disqualification for membership of the Appointments Commission
and this provision which should be resolved.
Clause 38—Disqualification from being
an appointed member
Clause 38(1) details the disqualification conditions.
The conditions are broad but do not include conditions relating
to mental Health detentions or Guardianship Orders. The Council
is of the view that the conditions should be re-examined from
this perspective. Clause 38(f) provides that disqualification
follows if a person has been committed of a serious offence which
is defined in Clause 47. There is a mismatch between the offence
disqualification for membership of the Appointments Commission
and this provision which should be resolved.
Clause 46—Meaning of "insolvency
order" etc
The Council has no comment to make.
Clause 47—Serious offence condition
The Council has no comment to make.
Clause 50—Relief from disqualification:
serious offence condition
The Council does not agree with this clause.
The electorate is entitled to expect that its legislators have
not committed serious offences. It should not be at the discretion
of the House to determine whether this ground of disqualification
should be disregarded.
Clause 53—Members of the House of Lords
disqualified from being MPs
The Council agrees with this clause.
Part 8—General provision about Membership
Clause 56—Expulsion and suspension
The Council is of the view that it should be a
specific offence for a person to refer to him or herself as member
of the House of Lords when he or she is not a member.
Clause 60—Tax status of members
The Council is of the view that this clause should
take into account the prospective provisions relating to the Scottish
rate of income tax contained in Clauses 28—32 of the Scotland
Bill.
CONCLUSION
The House of Lords fulfils many useful functions
in the United Kingdom's constitution. The process of reform will
need to take account of the need for enhanced democratic accountability,
the desire for greater efficiency and the changing constitutional
structure of the United Kingdom.
4 October 2011
| 
