The House of Lords at Work:  continued

THE WORK OF THE HOUSE


PRIMARY LEGISLATION

21.   Perhaps the most important part of the House's work is its role in considering and revising draft legislation ("bills") which go on to become the law of the land (as "Acts of Parliament"). There are several kinds of bill.

Public Bills

22.  A public bill is a draft law which would have general effect throughout the whole of the United Kingdom, or of one of its constituent countries. In general, to become law, a bill must be passed by both Houses of Parliament, and receive Royal Assent. A bill may begin its life in either House, and having completed all its stages in the House in which it begins, it must then pass to the second House and go through the whole process again. In either House, the bill may be amended or rejected altogether. If it is amended by the second House, it must be returned to the first House, which may accept or reject the amendment, or amend the amendment itself. If the second House then rejects that amendment, it must either propose an alternative amendment or give a "reason" for rejecting the proposed amendment. The bill may not receive Royal Assent until both Houses are in agreement, and a bill which has not received Royal Assent by the end of the session is lost.[5]

23.  During Session 1994-95 43 bills were introduced in the House of Lords, and a further 34 were brought from the Commons (bills of a politically contentious nature are more usually introduced in the Commons). All together, 54 bills received Royal Assent. Further figures may be found in Appendix I.

24.  The procedure of the two Houses for considering public bills is broadly similar. In both Houses, bills must go through first reading (purely formal - no debate), second reading (a general debate on the main principles of the bill), committee stage (a chance to table amendments and work through the detail of the bill), report (similar to Committee stage, but with stricter rules), and third reading (a chance to make any last minute amendments (in the Lords only), to tidy up the bill, to make amendments promised by the Government at earlier stages and to debate the bill in its final form). There are, however, significant differences between the procedures of each House. First, whereas the Commons have the "guillotine" or closure motion, the Lords have no machinery for curtailing debate at any stage. Secondly, the Lords, unlike the Commons, have no provision for the selection of amendments; all amendments tabled may be debated. Thirdly, the Lords, unlike the Commons, allow amendments to be tabled at third reading.

25.  Finally, whereas in the House of Commons the Committee stage of most bills is conducted in a Standing Committee "upstairs" in a Committee Room, in the Lords the Committee stage usually takes place in the Chamber in a "Committee of the Whole House". However, following the recommendations made in the 1992 Jellicoe Report on the Committee Work of the House[6] and the 1994 Rippon Report on the Sittings of the House,[7] there has been a growing tendency in the Lords to try to save time on the floor of the House by taking the Committee stage of some bills (notably Law Commission Bills and other relatively non-controversial bills) in committees off the floor. Bills in the Lords are thus increasingly being committed to one of the committees set out in Appendix II.

Private Members' Bills

26.  Whereas most major public bills are introduced by the Government, some public bills are introduced by individual members of either House. Public bills introduced by individual members are called "private members' bills" (not to be confused with Private Bills!). Any member of the House of Lords may introduce such a bill. In Session 1994-95, 22 private members' bills were introduced in the Lords, and 15 were brought from the Commons (the number of private members' bills introduced in the Commons is very large). 17 of them passed through both Houses successfully and received Royal Assent. While most House of Lords private members' bills pass through the Lords, many are lost because they run out of time in the Commons, where there are strict rules governing the time available for debating private members' bills. It is thus relatively unusual for the House of Commons to pass a Lords private member's bill: in Session 1994-95, only four out of the 22 Lords private members' bills passed by the Lords received Royal Assent.

Private Bills

27.  Unlike public bills, which are introduced by members of one of the two Houses, private bills originate outside Parliament and are promoted by bodies, often local authorities, seeking special powers, or authority for certain kinds of works, not available under the general law. The powers of the House of Lords in relation to private legislation are not limited either by convention or by the Parliament Acts (see paragraph 31 below). Private bills are allocated to the two Houses for introduction in equal numbers, although in recent years the number of private bills going through Parliament each session has dropped considerably. In Session 1994-95, six private bills were introduced in the House of Lords.

28.  The procedure for considering private bills is broadly the same in the two Houses, but is different from public bill procedure. In the Lords, private bills are subject to scrutiny by the Chairman of Committees, and for the most part their consideration takes place off the floor of the House. Parties whose interests would be affected by the objects of a private bill may petition Parliament against it, and their petitions are heard by a Select Committee, normally consisting in the Lords of five Lords, who hear argument and evidence from both sides. In Session 1994-95, three such Committees sat in the Lords for a total of 14 days: the longest, on the Bodmin Moor Commons Bill [H.L.], sat for eight days (plus four days in session 1993-94). The Committee may amend the bill or recommend that it proceeds no further. The last private bill to have been rejected by the House of Lords was the Darlington Borough Council Bill [H.L.] in 1991. Unlike public bills, private bills may be carried over from one session to the next as long as both Houses agree to do so.

Hybrid Bills

29.  Also subject to a special procedure are hybrid bills; that is to say bills which are public and general in nature but which affect certain specific private or local interests in a special way. The last hybrid bill was the Channel Tunnel Rail Link Bill which was introduced in Session 1993-94. Once a bill has been declared hybrid, petitions may be presented against the bill on behalf of the interests affected. If no petitions are presented, the bill then follows the same procedure as does a public bill. If any petitions are presented, the bill is committed after second reading to a Select Committee to enable the petitioners to be heard and evidence to be taken. The Committee can amend the bill or can recommend that it proceeds no further. Once the bill has been reported from the committee, it is recommitted to a Committee of the Whole House, and from there it follows the same procedure as does a public bill.

Consolidation Bills

30.  Although many Government bills are introduced in the Commons, those for which the Lord Chancellor has special responsibility are usually introduced in the House of Lords. Many of these are either consolidation bills, which reenact existing law in consolidated form (sometimes incorporating minor improvements recommended by the Law Commissions), or bills to repeal obsolete enactments. Most of the work on such bills is done in a special Joint Committee on Consolidation Bills, made up of members of both Houses and chaired by one of the Law Lords; such bills usually take little time on the floor of either House.

Powers of the Lords

31.  The powers of the House of Lords in respect of public legislation are restricted in various ways - some statutory, some self-imposed. First, under the Parliament Acts 1911 and 1949, if the Lords reject any Commons bill (except a bill to extend the life of a Parliament beyond five years), then the same bill introduced in the following session may receive Royal Assent in the form in which it reaches the Lords even if the Lords amend or reject it again. Only the War Crimes Bill of Session 1990-91 has passed into law under the Parliament Acts since the Parliament Act 1949 itself: the War Crimes Bill was defeated on second reading in the Lords on 4th June 1990, re-introduced in the following session and was again defeated on second reading in the Lords on 30th April 1991. It then immediately went forward for Royal Assent under the Parliament Acts, becoming law on 9th May 1991. The infrequency with which the Parliament Acts are invoked does not mean, however, that Government bills which have been through the Commons are invariably passed by the Lords. The Trade Union and Labour Relations (Amendment) Bill of Session 1975-76 and the Aircraft and Shipbuilding Industries Bill of session 1976-77 were reintroduced under the Parliament Acts after being lost in the previous session, but enacted by agreement between the Houses without recourse to the Parliament Acts; the House of Commons (Redistribution of Seats) (No.2) Bill of Session 1968-69 was lost through opposition in the Lords and not reintroduced; and the Hare Coursing Bill of Session 1975-76 was reported against by a Select Committee in the Lords and not reintroduced.

32.  Secondly, the House of Commons has long asserted a general privilege in matters concerning the raising and spending of public funds. Today this is exercised in three ways. First, supply bills (i.e. bills to raise taxes such as finance bills, which implement the proposals of the Budget statement, and consolidated fund bills to authorise expenditure) originate in the Commons and may not be amended by the Lords. Secondly, if the Lords amend a Commons bill in a way which the Commons consider to be a breach of financial privilege, they draw attention to their privilege in their reason for disagreeing to the amendment, and the Lords invariably give way. Thirdly, when a Lords bill contains provisions involving charges or expenditure, the Lords make a "privilege amendment" to it, by adding a subsection stipulating that nothing in the bill shall involve such charges or expenditure. The subsection is removed by amendment in the Commons, and privilege is thereby maintained.

33.  The third restriction on the powers of the House of Lords results from the Parliament Act 1911. Under its terms, the Speaker of the House of Commons may certify a Commons bill as a "money bill" on the ground that it deals only with national taxation or public money. Such a bill must receive Royal Assent not more than one month after its introduction in the Lords, even if the Lords have not passed it, and any amendments which the Lords make to it may be disregarded. The Lords passed five money bills in Session 1994-95.

34.  Finally, since 1945 the House of Lords has observed a convention, known as the "Salisbury doctrine", which assumes that measures foreshadowed in the manifesto on which the Government party fought the previous election "should be regarded as having been approved by the British people" (Hansard 4th November 1964 col. 66). Under this doctrine, the Lords do not reject on second reading a Commons bill based on policies set out in the Government party's election manifesto. But the doctrine does not affect the Lords' freedom to amend a bill at later stages.

35.  As a consequence of the acknowledged political authority of the elected Chamber, the distribution of senior Ministers between the two Houses, and financial privilege, many major Government bills are introduced in the House of Commons. Nevertheless, some major bills are introduced in the Lords: examples from session 1995-96 include the Family Law Bill and the Broadcasting Bill. Because most major bills start in the Commons, and because of the restrictions described above, the House of Lords is often called a "revising Chamber", whose role is largely to improve the detail of Government legislation without disputing it in principle.

Revision of legislation

36.  The work of the House of Lords in revising legislation can be seen in the number of amendments made to public bills. The House of Lords usually makes over 2000 amendments to bills each session. In session 1994-95, the Lords made 2357 amendments, 1291 of which were to bills brought from the Commons. Only nine amendments were rejected by the Commons. The Commons made 1052 amendments to Lords bills, all of which the Lords accepted.

37.  What do these figures tell us about the impact of the Lords on public bills? Most amendments made in the Lords are brought forward by Government Ministers, and many are necessary to tidy up legislation so that it leaves Parliament in a clear and coherent form. This is work which the Commons may not have time to do. Other amendments are to meet undertakings given in the Commons. But just because most amendments are brought forward by the Government does not mean that the Lords does only what the Government, or the House of Commons, wants. The Government faces pressure in the Lords not only from the Opposition parties, but also from the Cross-Bench Peers and from its own back benches. Amendments are often brought forward to fulfil undertakings given in the Lords following representations made in debate in the House. Sometimes the pressure for a change in policy leads to a Government defeat on division. In recent years, it has been most unusual for a Government with a clear majority to be defeated in the Commons, but in the Lords, Government defeats happen several times each session. Since 1989-90 the average number of Government defeats each session has been 14.

38.  It is very difficult to analyse the outcome of these defeats. It is true that it is rare for an amendment made in the Lords without Government support to become part of the final Act of Parliament unaltered. Sometimes the Government will seek to tidy up the words used to ensure that they have legal force. On other occasions, the Government will not accept the policy change made by an amendment and will seek to reverse it completely in the Commons. It is often the case that the Government brings forward an alternative in the House of Commons, but it is impossible to generalise about the force of the alternatives offered. It is a matter for individual interpretation as to whether a compromise has been reached, or whether the Lords are in effect being asked to accept almost no change to policy at all.

39.  There are some cases, however, in which the influence of the Lords can be clearly interpreted. During the 1993-94 session, the Lords considered the Sunday Trading Bill, to allow shops more freedom to open on Sundays. Much of the Bill was subject to a free vote - that is, no party whipped its supporters to vote one way or the other (see paragraph 12 above). The Lords accepted the overall principle of the Bill as it came from the Commons, that there should be some relaxation of the rules governing opening hours on Sundays but that some restrictions should remain. The Lords did, however, add three categories of shop to those to be allowed greater freedom to open on a Sunday; the Commons accepted two of these amendments.

40.  During the debate on the Railways Bill to privatise British Rail in session 1992-93, the Lords passed an amendment to allow British Rail to bid for private rail franchises. The Government had originally intended that this should not be possible. The Commons rejected the Lords amendment but accepted a Government proposal that British Rail should be allowed to bid in certain circumstances. Most unusually, the Lords defeated the Government again when the Bill returned from the Commons: the Lords wanted to increase the range of circumstances in which British Rail could bid. But when the Commons rejected this, the Lords accepted the first proposal to allow bids but only in certain circumstances. So it is clear that the Government defeat in the Lords led to a change in policy, although it is a matter for interpretation how significant the effect on policy was.

41.  In the 1994-95 session, there were six Government defeats in the Lords. These included an amendment to the Pensions Bill allowing a divorce court to take pensions into account when sharing out property, and restoring war widows' pensions to war widows who remarry if that subsequent marriage ends. Each was accepted by the Government in the Commons.

SECONDARY LEGISLATION

Statutory Instruments

42.  The fine detail of legislation is often laid down not by Act of Parliament, but by "statutory instrument" instead. For example, an Act may provide for certain areas of countryside to be protected. Rather than listing all the specific areas which are to be protected, the Act might instead provide for the specific areas involved to be defined and listed in a statutory instrument. This would give the Minister the power to draw up the list, and, if necessary, amend it as the years go by, without having to trouble Parliament with primary legislation to effect each detailed change.

43.  Statutory instruments (also known as delegated or secondary legislation because the power to make them is delegated to the Minister by the parent Act) take the form of Orders, Regulations or Rules. They enjoy the same status as Acts of Parliament in that they form a part of the law of the land.

44.  Statutory instruments fall into three main categories related to the extent of parliamentary scrutiny which they receive. Some are "affirmative instruments", which require the approval of both Houses of Parliament in order to come into or remain in force; some are "negative instruments", which come into or remain in force unless they are annulled by resolution of either House within a certain time, usually 40 days; and some are "instruments not subject to parliamentary proceedings", also known as "general instruments". Most instruments are laid before both Houses of Parliament simultaneously: however, a small number of instruments of a financial character are the concern of the House of Commons alone. In Session 1994-95, the Lords approved 123 affirmative instruments, in each case without a vote. Debates were held on seven negative instruments, but no such instruments were annulled.

45.  The powers of the House of Lords over delegated legislation are not limited by the Parliament Acts (see paragraph 31 above). However, a convention has developed that the Lords use their powers with circumspection, and will not normally try to vote down a statutory instrument which the Commons have approved. The Lords have only once rejected an affirmative instrument (the Southern Rhodesia (United Nations Sanctions) Order 1968), and have never annulled a negative instrument. With this self-denying ordinance in effect, and since delegated legislation cannot be amended, the Lords have developed ways of expressing disapproval of delegated legislation without offending against the convention: they may use either an "Unstarred Question" (see paragraph 57) to air the matter in general debate, or a "nonfatal critical motion", either inviting the House to criticise the instrument without rejecting it, or calling on the Government to withdraw or amend the instrument. The effect of such a motion, if agreed to, is to invite the Government to change their policy; but the Government are not obliged to act.

46.  Before the merits of an instrument are considered by the House, the instrument is examined by a Joint Committee of both Houses (called the Joint Committee on Statutory Instruments) to ensure that it is properly drafted and that it does no more than is authorised by the parent Act. This Committee does not have the power to consider the merits of delegated legislation. The Lords, unlike the Commons, are bound by their Standing Orders not to approve an affirmative instrument before this Committee has reported on it. All statutory instruments, except those made under Schedule 1 of paragraph 1 of the Northern Ireland Act 1974 and those made under section 1(4) of the Deregulation and Contracting Out Act 1994 (for which analogous arrangements apply - see paragraph 50 below), are examined by the Joint Committee on Statutory Instruments.

47.   The House of Lords makes special provision for the consideration of affirmative instruments which affect private rights. These are known as "hybrid instruments", and may be compared with hybrid bills (see paragraph 29). No corresponding provision is made by the House of Commons. The Hybrid Instruments Committee considers petitions against such instruments from parties affected by them, and may recommend a further inquiry by a Select Committee. In Session 1994-95, three instruments were found to be hybrid.

Scrutiny of delegated powers

48.   The Delegated Powers Scrutiny Committee was set up in 1992-93 "To report whether the provisions of any bill inappropriately delegate legislative power; or whether they subject the exercise of legislative power to an inappropriate degree of Parliamentary scrutiny." In other words, the Delegated Powers Scrutiny Committee exists to look out for bills which give away too much (or too little) power to the Minister to make delegated legislation. An example of an "inappropriate degree of Parliamentary scrutiny" would be a case where a bill provided for a certain set of Regulations to be made by means of a negative instrument, where it would have been more appropriate (in view of the subject matter of the Regulations) to require the Regulations to have been made by means of an affirmative instrument. The Delegated Powers Scrutiny Committee has no parallel in the Commons.

49.   Amendments to bills are often brought forward in the Lords to meet the concerns of the Committee. These amendments can be debated, and on many occasions the Committee's arguments have been accepted. The result is often that a greater degree of parliamentary control is applied to a delegated power (i.e. an instrument is made as an affirmative rather than a negative instrument). Sometimes the Committee urges the House to consider whether a power should be delegated at all. One significant example related to the Community Care (Direct Payments) Bill [H.L.] in session 1995-96, where the Government accepted the Committee's recommendation that an apparently unlimited delegated power (dealing with repayments to local authorities of mis-spent money paid to recipients of community care) should be replaced by writing the provision into the bill, thus removing the need for a delegated power.

50.   The Delegated Powers Scrutiny Committee also examines Orders made under section 1(4) of the Deregulation and Contracting Out Act 1994. Such Orders may amend or repeal any provisions of primary legislation which (in the opinion of the Secretary of State) place an unnecessary burden on anyone carrying out a trade, business or profession. The Delegated Powers Scrutiny Committee also examines the vires and technical merits of such Orders, and they are thus exempt from examination by the Joint Committee on Statutory Instruments (see paragraph 46 above).

SELECT COMMITTEES

51.   The Committee structure in the House of Lords is unlike that in the House of Commons in that Lords Select Committees do not oversee the work of particular Government departments. However, the House maintains two permanent investigative Select Committees, and these are the European Communities Committee and the Science and Technology Committee.

52.   The European Communities Committee was established in 1974 to consider proposals for Community legislation. It works through five SubCommittees, covering the following policy areas:

    Economic and Financial Affairs, Trade and External Relations;
    Energy, Industry, Transport and the Working Environment;
    Environment, Public Health and Education;
    Agriculture, Fisheries and Consumer Protection;
    Law and Institutions.

In all, about 60 Lords are involved in its work. It examines all Community proposals, and reports in depth on those which raise important questions of policy or principle. In Session 1994-95 it produced 21 reports, 10 of which were for debate in the House. Examples of subjects covered are: Relations between the European Union and the Maghreb Countries, Cross-Border Credit Transfers, the 1996 Inter-Governmental Conference, EUROPOL, the EC Beef and Veal Regime and Bathing Water. Successive Governments have undertaken not to agree to any Community proposal (other than in exceptional circumstances) until both Houses of Parliament have expressed an opinion on it, and it is through the European Communities Committee that the Lords' opinion is primarily expressed. The Government now give a written response to every report.

53.   The Science and Technology Committee was established in 1980 "to consider science and technology". About 20 members are now involved in its work, which takes place primarily through two SubCommittees, each of which conducts largescale enquiries lasting for up to six months. Four inquiries were completed in session 1994-95 on the subjects of Public Sector Research Establishments, the Defence Research Agency, Medical Research and Academic Research Careers for Graduate Scientists. Each report is debated in the House, and receives a written response from the Government. In recent years reports have led, among other things, to the appointment by the Government of an Advisory Council on Science and Technology and the practice of planning public spending on research and development "horizontally" across the whole of Government, rather than "vertically" by single departments.

54.   In addition, the House regularly appoints special Select Committees to consider subjects of particular interest. Such inquiries have included the Practice and Procedure of the House (1976-79), Unemployment (1980-82), Overseas Trade (1984-85), Murder and Life Imprisonment (1988-89), the Committee Work of the House (1991-92), Medical Ethics (1993-94), Sustainable Development (1994-95), the Dangerous Dogs (Amendment) Bill [H.L.] (1995-96) and Relations between Central and Local Government (appointed in 1995).

DEBATES

55.   In 1994-95, 46 debates on matters other than on legislation took place in the House of Lords. Wednesdays are generally devoted to debates, rather than to legislative business. One Wednesday in each month of each session until the Spring Bank Holiday recess is set aside for two timelimited "Short Debates" of a maximum duration of 2½ hours, on motions set down by backbench or cross-bench peers and selected by ballot (i.e. pulled out of a hat). Time for other debates is found through the "usual channels", that is, by arrangement between the political parties taking account of the wishes of individual Lords. Many of these debates are timelimited, but others are held without any time limit. Motions for debate in the House of Lords do not normally require the House to reach any decision: they usually take the form of a motion "for papers" on the subject in question. The motion is withdrawn at the end of the debate. Sometimes a noncontentious motion "to take note" is used. Occasionally the House is invited to pass a Resolution on the subject in question: the most recent example was a resolution on the subject of the declaration and registration of financial interests, agreed to on 7th November 1995.

QUESTIONS

56.   Other than on a Friday, business begins each day in the House of Lords with up to four oral "starred" questions to the Government. Notice of such questions must be given. They are called "starred questions" because they are marked with an asterisk on the order paper. Supplementary questions on the same subject may be asked by any Lord without notice. In total, the four starred questions are allocated a maximum of half an hour. 515 such questions were asked in Session 1994-95. Attendance in the House is usually at its highest at question time.

57.   An "unstarred" question may be asked at the end of the day's business, or during the dinner break. Such questions take the form of a short debate, ending with a reply from the Government. 42 unstarred questions were asked during Session 1994-95. Lords may also question the Government in writing: the questions and answers are printed in Hansard, the Official Report of the proceedings of the House. 2172 such questions were answered during Session 1994-95. Finally, a Private Notice Question, submitted to the Leader of the House by midday on the day on which it is to be asked, may be asked immediately after Starred Questions, but only if the Leader (or, on appeal, the House) considers the question to be of sufficient urgency. One such question was asked in 1994-95.

STATEMENTS

58.   Government statements to Parliament are made by the responsible Minister in the House of which he is a member, and may be repeated in the other House. Most statements are therefore given in the Commons, and either repeated in the Lords by a junior Minister or, to save the time of the House, simply noted in Hansard. 26 statements were given or repeated in the Lords in Session 1994-95, and 24 were simply noted in Hansard.

JUDICIAL BUSINESS

59.  The House of Lords is the final court of appeal for the United Kingdom in civil cases and for England, Wales and Northern Ireland in criminal cases. The appellate jurisdiction of the House is chiefly exercised by the salaried Lords of Appeal in Ordinary ("Law Lords"), of whom there are at present 12 (which is the maximum number allowed). Lords of Appeal receive life peerages under the Appellate Jurisdiction Act 1876 (as amended), and remain members of the House after they retire as Law Lords. In addition the Lord Chancellor and Lords who hold or have held high judicial office (including retired Law Lords) may participate in hearing appeals. The Law Lords only rarely hear appeals in the Chamber; they usually meet in an Appellate Committee of five members, from Monday to Thursday throughout the Law Term. The final judgment on an appeal is always given in the Chamber at a sitting of short duration, usually on a Thursday before the ordinary sitting of the House for public business.

FURTHER READING

60.   The following are recommended for further reading:

Statistics: Report by the Group on the Working of the House (HMSO, HL Paper 9 of 1987-88)
The House of Lords Report of the Conservative Review Committee (Conservative Central Office, 1978)
House of Lords Reform White Paper (HMSO, Cmnd 3799, 1968)

Academic: The House of Lords, D. Shell (2nd edition, Harvester Wheatsheaf, 1992)
Parliament in the 1980s, ed. P. Norton (Blackwell, 1985)
The House of Lords and the Labour Government 1964-70, Janet P. Morgan (Oxford, 1975)
The House of Lords and Contemporary Politics 1911-1957, P.A. Bromhead (Routledge & Kegan Paul, 1958)
Peers, Politics and Power: The House of Lords 1603-1911, ed. C. Jones & D.L. Jones (Hambledon Press, 1986)

General: Parliament: Functions, Practice and Procedures, J.A.G. Griffith and M. Ryle (Sweet & Maxwell, 1989)
How Parliament Works, P. Silk and R.H. Walters (Longman, 1987)
The House of Lords at Work (A study based on the 1988-89 Session), D. Shell and D.R. Beamish (Oxford, 1993)

Miscellaneous: Parliamentary Scrutiny of European Union Affairs: The Case of the United Kingdom House of Lords, M.G. Pownall (EIPA, 1995)

Notes:
5.  See paragraph 31 on the powers of the Lords. back

6.  HL Paper 35-I, Session 1991-92. back

7.  HL Paper 83, Session 1993-94 back

 

© Parliamentary copyright 1996
Prepared 23 October 1996