2 Functions, Role, Primacy and Conventions |
1. The principle of an electoral
14. The Government's rationale for bringing forward
this legislation is set out in the Foreword to the White Paper
containing the draft Bill, to which the Prime Minister and Deputy
Prime Minister are signatories: "We are now publishing a
draft Bill to change the House of Lords into a more democratically
elected second chamber. In a modern democracy it is important
that those who make the laws of the land should be elected by
those to whom those laws apply. The House of Lords performs its
work well but lacks sufficient democratic authority".
15. Mr Mark Harper MP, the Minister for Political
and Constitutional Reform, ('The Minister') elaborated this argument
in oral evidence to the Committee: "in terms of making the
law members of the second chamber are very influential. The argument
is that people who make the laws ought to be elected by those
to whom those laws apply. That is the simple principle. It is
not in essence more complex than that. Although they are not forming
the Government, they are playing a very important role in how
laws are made in our country and in how that Government is scrutinised".
He also made the point "that having elected members of the
Upper House meant that they were more legitimate because they
had been put there by votersin terms of the party membersrather
than by their parties".
That is to say, the patronage of the political parties would be
supplanted by the direct choice of the electorate.
16. Some witnesses took the same line as the Government.
As Graham Allen MP told the Committee, "... any political
power can be exercised only by those who are legitimately elected.
That is my ultimate principle. It is one that applies to Commons'
Members and to local government councillors and I think ultimately
we must aim to make it apply throughout our constitution".
Lord Adonis took the view "that people who make the law should
David Howarth, formerly a Liberal Democrat MP and now Reader in
Law at the University of Cambridge, said that "people who
take part in making new law need to be elected in some sense"
and that no other form of authority was a sufficient substitute.
Other witnesses agreed with this principle.
17. Professor John Curtice, Co-Director of the Centre
for Elections and Representation at the University of Strathclyde,
broadened the debate by drawing the Committee's attention to "very
clear evidence from polling data that in today's society, people
are doubtful about a Chamber that does not have an element of
election to it".
18. The argument that an equal case for election
can be made for the House of Lords as a revising chamber, as for
the House of Commons, was challenged in a range of evidence. For
example, Professor Sir John Baker, Downing Professor Emeritus
of the Laws of England at the University of Cambridge, took a
completely different view. He challenged "the widespread
assumption that the House of Lords must be elected as a requirement
of democracy. That seems to me to be quite a serious fallacy given
the unusual nature of our constitution".
The House's essential scrutiny role "does not require the
sanction of the ballot box to give it legitimacy any more than
the judicial role, because the House of Commons can insist on
the last word".
The Archbishops of Canterbury and York wrote that "the argument
that such a [revising] chamber can only be effective and have
proper legitimacy if it is wholly or mainly elected is no more
than an assertion".
19. Similar views were expressed by Lord Cormack
in his written evidence on behalf of the Campaign for an Effective
Second Chamber, a group of some 200 members of both Houses. He
wrote that the " 'democratic' option ... is givenso
much so it comes close to being unstatedbut is not self
evident. Democracy lies in the elected House of Commons and the
government it sustains. It is this power of the Commons that ensures
we are governed democratically and to create an elected Lords
merely confuses the present clear line of accountability to the
people." Lord Cormack went on to say that the House of Lords
alone does not "make the law", but ultimately the elected
House of Commons prevails.
20. Professor Vernon Bogdanor, Research Professor
at the Institute of Contemporary History, Kings College London,
saw merit in avoiding election, "so there is a sense"
he said "in which the current composition of the Lords evades
the dilemma that faces all democracies about how to choose an
effective second chamber ...".
21. It is arguable too that an elected mandate for
a reformed second chamber will not in itself necessarily add to
good governance. That will depend very much on what emerges under
any new arrangements.
22. These differing views as to the need for an electoral
mandate in a reformed second chamber underlie most of the evidence,
both oral and written, received by the Committee. For some an
electoral mandate is necessaryeven paramountand
any uncertain consequences of election are deemed insufficient
reasons not to proceed with the draft Bill. For others, the proposals
represent an unbridgeable gap between election of the House of
Lords and the primacy of the House of Commons, together with an
unacceptable lack of clarity about how the two Houses will operate
in terms of the legislative process once there are elected members
in the Lords.
23. Not surprisingly
these differences of perception exist within the Committee too,
as well as within political parties and across the two Houses.
They will doubtless condition the debate when the Bill is introduced
and considered in both Houses. The Committee, on a majority, agrees
that the reformed second chamber of legislature should have an
electoral mandate provided it has commensurate powers.
2. Functions, powers and role
24. The current functions of the House of Lords are
to serve as a chamber of legislature both initiating and revising
Bills; to scrutinise the executive through questions, statements
and select committee work; and as a forum of debate.
25. The Government describe these functions in its
introduction to the draft Bill in the following terms:
"The House of Lords plays an important role
in our legislature and, as a second chamber, is a vital part of
our constitutional arrangements. The House of Lords shares responsibility
for legislating with the House of Commons. Bills are debated and
scrutinised in both Houses. The House of Lords has a reputation
for the careful consideration of legislation and has the ability
to delay and ask the Government and House of Commons to think
again and, in some cases, offer alternative amendments for further
consideration. The House of Lords also plays a vital role in scrutinising
the work of the Government and holding it to account for its decisions
and activities. It does this by members asking oral and written
questions, responding to Government statements and debating key
issues. Select Committees of the House of Lords conduct inquiries
into matters of public policy and publish their findings to Parliament".
26. The Government believe that these functions would
remain unchanged when the House of Lords is reformed and that
the Lords should continue this work, which the Government considers
valuable. Indeed, in 2002 the Joint Committee on House of Lords
Reform came to a very similar view as to functions in its first
Report. Rt Hon Nick
Clegg MP, the Deputy Prime Minister, in evidence to the House
of Lords Constitution Committee said, "I do not think that
there is an automatic link between composition and function. We
are arguing that ... the mandates and the constitutional role
of the House of Lords as a revising chamber can remain intact
notwithstanding the fact that the legitimacy of the members of
the House of Lords would be different in a House of Lords that
is wholly or largely elected".
In addition to these functionslegislation, scrutiny and
debatean elected or largely elected House would acquire
a fourth function: representation. Once elected, albeit for large
multi-member electoral districts, members of the Lords will represent
electors for the first time. The Minister recognised this when
he told the Committee that elected members "will not have
the same level of constituency responsibilities, but I do not
think that it is true to say that you will not have any".
This issue of constituency responsibilities is separately treated
in section 14 below.
27. So far as concerns the present functions of the
House of Lords, there was a broad consensus in the evidence received
by the Committee that the House of Lords was an important and
valued component of the parliamentary process and should be retained.
While many witnesses suggested that the intended functions of
a reformed House should first be defined before proposals for
reform were devised, we received little evidence making a case
for substantially varying the current functions.
This degree of acceptance spanned the divide between those who
broadly supported the terms of the draft Bill and those who did
not. Thus Lord Cormack wrote, "The House of Lords as it presently
operates adds value to the political process".
The Electoral Reform Society saw reform as "a means to preserve
and enhance the Chamber's vital constitutional role".
And the Political Studies Association's report, House of Lords
Reform: A Briefing Paper, recognised that the House in scrutinising
Bills and the actions of the executive "is widely seen as
playing an important role within the British political system".
The Council of the Law Society of Scotland thought that the legislative
and scrutiny functions "should be preserved and not affected
28. But while witnesses thought that the functions
of the current House should be preservedwhether or not
the House was reformedit was also broadly accepted that
a wholly or largely elected House would be likely to exercise
its powers in relation to those functions in a more assertive
way. Dr Meg Russell, Deputy Director of the Constitution Unit,
University College London, articulated this in her written evidence:
"First, to what extent would the House of Lords,
if transformed into an elected (or largely elected) chamber, make
use of the substantial powers that it has? This of course is unknown.
In practice it would be dependent on the extent of partisan conflict
between the chambers, as well as on how political culture develops
over time. The experience from other bicameral states suggests
that elected chambers generally feel free to use their powers
to the full, in a way that the House of Lords currently does not.
So the second critical question, which is perhaps even more difficult
than the first, is how powerful it is desirable for the reformed
British second chamber to be? Some would argue, and some argued
in the recent parliamentary debates, that it would be good for
British politics if the second chamber acted as a greater constraint
on government and the House of Commons. What this article has
demonstrated is that a reformed House of Lords left with its existing
powers, if it chose to use these more freely, would be one of
the more powerful such chambers amongst parliamentary democracies".
29. The Minister acknowledged that the relationship
between the Houses would change:
"I do not think that the Government's position
is that there will be no change whatever in the relationship between
the two Houses, but the statutory underpinning in the Parliament
Acts means that the House of Commons remains the primary Chamber.
The exact relationship will change, as it has, but the idea that
we could now, today, set out the exact relationship and codify
the powers on the way in which the two Houses work together and
set those in stone is not realistic".
30. Witnesses' opinions varied as to the consequences
of the more assertive use of powers which derived from election.
Many thought that this would lead to an unacceptable level of
conflict between the two Chambers. Professor Vernon Bogdanor wrote
"direct election, however much the principle is qualified,
is likely to make the second chamber more powerful. The upper
House would become an opposing rather than a revising chamber".
Rt Hon Peter Riddell, Director of the Institute for Government,
stated "members of an elected chamber would feel they had
a strong right to challenge the Commons, at least on non-financial
legislation, since both Houses could claim democratic legitimacy".
The Archbishop of Canterbury noted that "An elected second
chamber, we believe, runs the risk ... of being in competition
with the first chamber in terms of legitimacy, especially if the
second chamber is elected by a method, the single transferable
vote, that in the eyes of a good many people ... is regarded as
a more legitimate and more credible method of election than first-past-the-post".
Others were of similar opinion.
31. Various witnesses thought that greater assertiveness
would benefit Parliament as an institution and improve scrutiny
of the executive. They did not, in other words, view any increase
in assertiveness of the reformed House in terms of a 'zero-sum
game' in which the relative influence of the Commons was likely
to be diminished. Lord Adonis told the Committee, "I have
no doubt at all that Members of the second Chamber would behave
in a more forthright manner if they had a democratic mandate behind
them. I personally think that that would be a jolly good thing.
That is my judgment. I do not think that we suffer from an excess
of parliamentary power vis-a-vis the Executive in this country;
on the contrary, I think that the problem is that the Executive
is too dominant in our system".
According to Donald Shell, formerly a Senior Lecturer in Politics
at the University of Bristol:
"If the process of strengthening Parliament
is to continue, while this may primarily be a matter for the House
of Commons, the second chamber can and should play a complementary
role. In the long run it may not be able to do this if it remains
an entirely appointed House (as at present) whatever changes may
be made to the machinery for appointment. Many have argued that
a largely elected House would inevitably rival the Commons and
indeed could threaten the "primacy" of the Commons.
This is a danger, but I believe one that can be guarded against
partly by ensuring a clearer statutory embodiment of the limitations
on the powers of the second chamber, and partly through ensuring
that it is elected on a completely different basis".
32. Several witnesses who saw merit in a more assertive
House agreed that any heightened assertiveness could be manageable.
This question of preserving Commons primacy and managing relationships
between two elected chambers is fundamental and is discussed in
greater detail in the following sections.
33. The Committee
agrees with the Government's view that in order to enhance the
effectiveness of the parliamentary process it is appropriate that
a reformed House should perform, but not be constrained by, the
functions of the present House of Lordsincluding initiating
and revising legislation, subjecting the executive to scrutiny,
and acting as a forum of debate on matters of public policy. Indeed,
the Committee agrees that for the first time the reformed House
will, in respect of its elected members, acquire a representative
function. (The implications of this are
discussed more fully in section 14 below under constituency issues).
34. The Committee
is firmly of the opinion that a wholly or largely elected reformed
House will seek to use its powers more assertively, to an extent
which cannot be predicted with certainty now.
35. The Committee
considers that a more assertive House would not enhance Parliament's
overall role in relation to the activities of the executive.
36. Any overall
strengthening of Parliament would have to be subject to a defined
understanding of the relationship between the Commons and the
reformed House and of any conventions governing that relationship.
3. Primacy of the House of Commons
|Relevant section of the draft Bill: Clause 2(1) |
2 General saving
(1) Nothing in the provisions of this Act about the membership of the House of Lords, or in any other provision of this Act
(a) affects the status of the House of Lords as one of the two Houses of Parliament,
(b) affects the primacy of the House of Commons, or
(c) otherwise affects the powers, rights, privileges or jurisdiction of either House of Parliament, or the conventions governing the relationship between the two Houses.
37. We have discussed above the effects which changing the composition
of the House of Lords would have on the role, powers and functions
of the House of Lords. The Government believe that the proposed
changes in the composition of the second chamber ought not to
change the status of that chamber as a House of Parliament or
the existing constitutional relationship between the two Houses
38. In its Summary of the White Paper, the Government
state "We propose no change to the constitutional powers
and privileges of the House once it is reformed, nor to the fundamental
relationship with the House of Commons, which would remain the
primary House of Parliament. That primacy rests partly in the
Parliament Acts and in the financial privilege of the House of
39. The statutory provisions which underpin the primacy
of the House of Commons include but are not limited to:
- the Parliament Acts 1911 and
- the Ministerial and other Salaries Act 1975,
in its definition of the Leader of the Opposition as the Member
of the House who is for the time being the Leader of the party
in opposition to Her Majesty's Government which has the greatest
numerical strength in the House of Commons;
- the Fixed-term Parliaments Act 2011, in relation
to the Dissolution of Parliament;
- Part 2 of the Constitutional Reform and Governance
Act 2010, in relation to treaties; and
- Section 130 of the Localism Act 2011, in relation
to parliamentary consideration of National Policy Statements.
40. Non-statutory provisions include the principle
that the Government of the day can continue in office only so
long as they retain the confidence of the House of Commons. Most
important though, in the Government's view, are the long-standing
financial privileges of the House of Commons dating from Resolutions
in 1671 ("That in all aids given to the King by the Commons,
the rate or tax ought not to be altered by the Lords") and
"That all aids and supplies, and aids to his
Majesty in Parliament, are the sole gift of the Commons; and all
bills for the granting of any such aids and supplies ought to
begin with the Commons; and that it is the undoubted and sole
right of the Commons to direct, limit, and appoint in such bills
the ends, purposes, considerations, conditions, limitations, and
qualifications of such grants, which ought not to be changed or
altered by the House of Lords".
41. As the White Paper points out, the Parliament
Acts are rarely resorted to: the relationship between the Houses
is influenced on a day-to-day basis by a series of conventions
which have grown up over time. These include:
- the principle that the House
of Lords should pass the legislative programme of the Government
which commands the confidence of the House of Commons;
- the principle that, whether or not a Bill has
been included in a Manifesto, the House of Lords should think
very carefully about rejecting a Bill which the Commons has approved;
- the principle that the House of Lords will consider
Government Bills in reasonable time.
The Government's position is that these conventions
have served the relationship between the Houses well and that
they represent a delicate balance which has evolved over the years,
and will continue to evolve.
We discuss these conventions in more detail in section 5 below.
42. The Government believe that the primacy of the
House of Commons should be preserved. In the Government's view,
the present balance between the two Houses serves the legislative
process well, and gives the second chamber the opportunity to
make a substantive contribution while not at the same time undermining
the relationship between the Government and the House of Commons.
43. According to the White Paper, the Government
believe that Clause 2 of the draft Bill, simply asserting that
status, powers and functions will not change, is the best way
of preserving the primacy of the House of Commons because the
Bill does not attempt to codify the use of the existing powers
of the Houses in legislation but rather, as now, accepts that
the position is a matter of convention.
44. Two questions arise from Clause 2. First, is
the inclusion of Clause 2 an effective way to maintain the status
quo, as the Government claim? Secondly, if it is not, are the
Parliament Acts and other statutory provisions and the financial
privileges of the House of Commons sufficient to maintain the
primacy of the lower chamber in the face of a more assertive House
45. We sought to examine in depth the intention behind
the propositions expressed in Clause 2 of the draft Bill. According
to the Cabinet Office's Guide to Making Legislation, a
Bill's legal adviser prepares Drafting Instructions, on the basis
of the Minister's policy instructions, to say what is wanted,
but also to tell Parliamentary Counsel the reasons behind the
As the Cabinet Office guidance points out, poorly drafted or inadequately
thought-through Instructions can cost time later on. The Minister
declined to share the Government's Drafting Instructions for Clause
2 with the Joint Committee, on the grounds that such Instructions
were subject to legal professional privilege.
The Committee deeply regrets that the Government felt unable to
disclose this adviceit would have been helpful to the Committee
in its deliberations and this lack of transparency has hampered
Parliamentary scrutiny of the draft Bill.
46. Following our final oral evidence session on
Monday 27 February, the Minister submitted a paper explaining
the Government's thinking in drafting Clause 2, and the alternatives
that were considered. This letter is attached as Appendix 7. The
Minister explained that the Government's preferred approach was
to preserve the current situation of a non-legislative, flexible
relationship between the two Houses which could evolve, but to
state on the face of the legislation that changes made by the
Bill itself were not to affect the current powers. The Government
had considered three other options:
- to set out each of the powers
and the relationship between the two Houses in statute;
- as above, but in addition to amend the Parliament
Acts to include further key elements of privilege, for example
the Salisbury-Addison convention (see paragraph 76) and/or aspects
of financial privilege; or
- to remain silent on the face of the Bill in relation
to each of the powers and the relationship between the two Houses
The Minister's paper set out the reasoning behind
the Government's rejection of each of these three options. The
Government recognised the risk that a complete statutory codification
would lead to tensions as to where the boundary lay between Parliament's
jurisdiction over its own processes and the courts' interpretation
of statute law. Even a more limited codification would lead to
similar problems. Having recognised these problems, the Government
nevertheless rejected its third option, of remaining silent in
the Bill, in the belief that a general clause would provide clarity
and reassurance that the House of Commons would retain its primacy.
47. A major difficulty is that Clause 2 (1), as drafted,
seeks to establish a series of negative propositions, which
raise several different problems. A problem common to the series
of negative propositions is that there is no existing body of
statute defining these key terms: status, primacy, powers, rights,
privileges, jurisdiction and conventions. While Erskine May
(the authoritative text on parliamentary practice and constitutional
convention) states that "for some three and a half centuries,
the boundaries between the competence of the law courts and the
jurisdiction of either house in matters of privilege has been
is also the case that the courts have been reluctant to investigate
how Parliament exercises its functions. There has been comity
between the institutions. To import these terms into statute at
all raises the risk that these terms would become subject to statutory
interpretation by the courts. That would be a significant constitutional
development in itself.
48. It is paradoxical and self-defeating to refer
to conventions in statute: once the meaning of a convention had
been legally determined, it would no longer be a convention. Rt
Hon Lord Cunningham of Felling, who chaired the Joint Committee
on Conventions of the UK Parliament, told us in oral evidence:
"Codification is another word for writing conventions into
either Standing Orders or statute. Codifying conventions is a
contradiction in terms. They cease to be conventions if they are
codified. Therefore, the Committee [on Conventions of the UK Parliament]
concluded not that it could not be done but that it was not a
the inclusion of conventions alongside the powers, rights, privileges,
and jurisdiction of either House of Parliament in subsection (1)(c)
of Clause 2 lays these conventions open to judicial intervention.
The Courts could infer that if Clause 2 were passed that Parliament
intended the courts to have the authority to determine what those
conventions (and indeed the powers, rights, privileges, and jurisdiction)
were. The Committee's view is that no provisions in the Bill should
afford the opportunity for judicial interference in a manner inconsistent
with Article 9 of the Bill of Rights 1689.
50. The negative proposition, that the House of Lords
Reform Act will not affect the primacy of the House of Commons,
is the central problem in Clause 2. The primacy of the House of
Commons would not be reduced by any explicit provision in the
Act. But as we have discussed above, most observers expect the
behaviour of a wholly or mainly elected House of Lords would become
more assertive. This raises the critical question of whether this
would call into question the extent or nature of that primacy
in the future.
51. Lord Adonis said that the contention in the draft
Bill that the Bill does not alter the relationship between the
two Houses was "clearly an absurd proposition".
Rt Hon Lord Grocott told us that Clause 2 "at its best it
is wishful thinking and at its worst sloppy draftsmanship or bad
direction or whatever".
Lord Cunningham of Felling told us that "In Clause 2 of the
Bill, which, trying to be kind, I can describe only as disingenuous,
there are a number of naive propositions. It is almost like someone
walking off a cliff-edge in the dark. It suggests that all these
things can happenthat profound changes can take placebut
nothing else will be changed".
Peter Riddell, regarded Clause 2 as defective.
52. When we asked Professor Dawn Oliver, Treasurer
of the Middle Temple, if she agreed with Peter Riddell on Clause
2, she replied: "I do not think there is much harm in putting
it there. It is a symbolic statement of a wishful thought, really.
I do not think there is anything damaging about that and it is
probably a wishful thought that ought to be kept in people's minds,
but I do not think it is enforceable".
Others expressed similar views.
According to Dr Meg Russell of University College, London, "Clause
2 of the Bill is a fiction; it is pretty meaningless".
53. David Howarth told us: "If I were doing
this Bill, I certainly would not have Clause 2. I am in a group
of anti-Clause 2 people; the clause is just silly".
He argued that "[Clause 2] cannot change the world. If you
have elected people in the Lords, they will start to feel more
legitimate in many respects than the existing Members and will
start to do stuff. All Clause 2 says is that nothing in the Bill
changes the situation, but that does not mean that the world does
not change. The world will change".
54. We observe that only the Government felt that
Clause 2 was a useful addition to the draft Bill.
55. We concur
with the overwhelming view expressed to us in oral and written
evidence that Clause 2 of the draft Bill is not capable in itself
of preserving the primacy of the House of Commons.
THE PRIMACY OF THE HOUSE OF COMMONS
56. While many witnesses drew attention to the threat
to primacy which could follow from an elected House, some felt
that a more assertive House of Lords could enhance the effectiveness
of Parliament as a whole vis-à-vis the Executive which
tends to dominate the House of Commons, provided that its majority
there remains secure. Dr Alan Renwick, Reader in Comparative Politics
and at the University of Reading, thought that in general Commons
primacy would not be undermined and stated:
"There is much to be said for a more powerful
second chamber: power is presently highly concentrated in the
British political system, creating the danger that legislation
may be passed without adequate consideration of all its implications".
57. In his evidence to us on behalf of Unlock Democracy
(formerly known as Charter 88) its Director, Peter Facey, said:
"Let us be clear: a directly elected or predominantly
elected second Chamber would be more assertive. It would use the
powers that it has. That does not mean that it affects primacy.
In some ways, this is a strange debate. If by primacy you mean
that the Executive, dominating the House of Commons, always gets
its way on everything possible, I am against that definition of
primacy. If you are talking about the House of Commons as the
prime Chamber from which the Government are formed, where votes
of confidence are held, from which most legislation comes through
and which is the primethe strongerof the two Chambers,
under a directly elected second Chamber that will still be the
case. Is it going to be more assertive than now? Is it going to
be more confident than now? Yes. Do I think that that is a bad
58. A number of submissions doubted whether an elected
Lords would necessarily question Commons primacy. The Hansard
Society argued that: "The different electoral system, term
lengths and limits proposed for the reformed Lords, coupled with
the constitutional reality that it is the Commons from which the
government is formed and where it must sustain confidence, should
underpin the primacy of the Commons". The Hansard Society
nevertheless recommended that a comprehensive review of the legislative
powers of the executive and Parliament should be undertaken to
lead to a concordat "which clearly sets out where key powers
lie, and clarifies the relationships between, and responsibilities
of, the executive, the legislatures and the courts".
Katie Ghose, Chief Executive of the Electoral Reform Society,
told us that the Electoral Reform Society "[did] not have
massive concerns about the primacy issue. We think that there
should be an elected House of Lords. We think that it is entirely
achievable and indeed essential that the House of Commons retains
Electoral Reform Society pointed to a number of factors that would
help maintain Commons primacy, including a clear role differentiation
between members of the Commons and the Lords with members of the
latter elected to scrutinise legislation with no incentive for
individual constituency casework, and election by thirds which
would ensure that a clear majority of the Lords would have a weaker
mandate than the Commons. The Electoral Reform Society also suggested
that codifying the Lords' powers and conventions would also help
remove potential ambiguity.
59. The authoritative manual on Parliamentary practice,
Erskine May, describes the principal power of the Commons
as follows: "The dominant influence enjoyed by the House
of Commons within Parliament may be ascribed principally to its
status as an elected assembly, the members of which serve as the
chosen representatives of the people".
60. The Explanatory Notes on the draft Bill also
intimate a link between primacy and the currency of a popular
mandate: "Having simultaneous elections, apart from the exception,
means that it will not be possible for the House of Lords to have
a more recent popular mandate than the House of Commons, which
will continue to have primacy".
Other witnesses agreed,
including Professors Simon Hix and Iain McLean who believed that
staggered elections would provide a safeguard for Commons primacy
as "the mandate of the Commons will always be more recent
than that of the upper housetwo-thirds of whom will have
been elected more than five years ago".
The Electoral Reform Society argued that election by thirds would
ensure that a clear majority of the Lords would have a weaker
mandate than the Commons.
61. Other witnesses took the view that any notion
that primacy is rooted in the legitimacy of the electoral process
would be called into question by changing the composition of the
House of Lords to become wholly or mainly elected. Professor Vernon
Bogdanor argued that as the House of Lords was currently not elected,
"it can make no claim to be a representative chamber, and
therefore can never challenge the primacy of the Commons".
As such he contended that "a government seeking to tamper
with that logic does so at its peril".
Lord Peston, The Rt Hon Lord Barnett and Baroness Gould of Potternewton
maintained that: "It is obvious if a substantial elected
element is included in the new House of Lords, they will demand
more powers and will not regard themselves as subservient to the
Commons". They also contended that the Parliament Acts would
be "irrelevant" to an elected Lords.
62. The fundamental question of the possibility of
an elected House of Lords challenging the financial privilege
of the House of Commons was also raised by witnesses. The Rt Hon
Lord Howarth of Newport suggested that an elected Lords, with
arguably a more legitimate electoral system, would threaten the
primacy of the Commons. He thought that "in due course, an
elected Second Chamber will challenge the financial privilege
of the House of Commons" and "the Parliament Acts will
come under challenge".
The Clerk of the House of Commons concurred that there was a risk
the House of Lords would challenge Commons' financial privilege:
"Perhaps I may put myselfthis is an eventuality that
I can only marginally imaginein the position of being an
elected Member of the House of Lords. I cannot imagine representing
constituents who are taxpayers without feeling that I should have
a role in expressing views about the way in which money is being
63. Penny Mordaunt MP argued that "the only
reason that the Parliament Acts have legitimacy, the only reason
that the House of Commons can legitimately claim the power of
the purse, is because it is elected in contradistinction to the
House of Lords". This, she thought, would be undermined by
an elected Lords and especially one elected by an electoral system
that was perceived to be more legitimate. In addition, this could
lead to a situation in which the Commons "will increasingly
be regarded as the domain of the executive which must be held
to account by the Upper House", so changing the dynamic between
the two Houses. A
number of other submissions also maintained that an elected House
of Lords would challenge the primacy of the House of Commons.
Peter Riddell told us:
"I think the current Bill is defective. Clause
2 is the major flaw in the Bill because all it does is state,
'Because we believe it to be so, it will be so.' I think that
is completely fallacious because the actual statutory limitations
are pretty limitedthe absolute bar on amending designated
finance Bills and the one year suspensory vetobut beyond
that it is custom and practice and what Professor Bogdanor referred
to as the self-imposed constraints. I do not believe that those
are sustainable under an altered composition of the House ...
There would be a very fractious relationship. There would be claims
of more legitimacy by the second Chamber. There are also issues
about the transitional phase, but essentially there would be claims
of more legitimacy. There would be more resistancethe ping-pong
would break. I know there are conventions about how often ping-pong
can be done. You would have many more problems. That is why this
has to be addressed, I think, in any legislation. To rely on the
Parliament Act is just completely unworkable for a coherent Government".
Dr Meg Russell noted that "what limits the House
of Lords' de facto powers is not the Parliament Acts but
convention, culture and, in particular, the views about the legitimacy
of the present membership of the House of Lords ... If you had
an elected second chamber, those arguments would not hold in the
agree that the existing primacy of the Commons rests on a number
of factors including, but not limited to, the self-restraint of
the current House of Lords.
65. We are wary
of according too much weight to claims about the relative strength
of individual mandates, not least in relation to the passage of
time. A mandate is a mandate for the period for which a member
is elected. An MP's mandate is no weaker in the fourth or fifth
session of a Parliament than in the first.
66. We agree
that following election the increased assertiveness of a reformed
second chamber will affect the balance of power between the two
chambers in favour of the House of Lords.
within the Committee varied as to the impact which any shift in
the balance of power would have on House of Commons primacy. Some
members believed that Commons primacy would remain absolute, buttressed
by the provisions of the Parliament Acts: some believed that an
electoral mandate would inexorably lead to claims of equal primacy
with the Commons. Some believed that that no attempt should be
made to preserve Commons primacy, while others believed Commons
primacy would be undermined. A majority, while acknowledging that
the balance of power would shift, consider that the remaining
pillars on which Commons primacy rests would suffice to ensure
4. Primacy: additional statutory
68. Several contributors outlined measures which
could address the concern that Commons primacy might be challenged
by way of additional statutory provision.
69. Lord Desai, who thought that if the Lords were
elected "the primacy of the House of Commons cannot be taken
for granted", suggested that a constitutional "lock-in
device" might be required to ring fence Commons primacy from
repeal. Donald Shell
suggested a number of additional steps to help ensure primacy:
"I do think that the concern over primacy could
in part be met by a re-formulation and extension of the Parliament
Acts. The delay on primary legislation is 12 months from the date
of first second reading of a Bill in the Commons, and excludes
Bills introduced in the Lords. This should be replaced with a
stipulated period (say six months?) from a declared date of disagreement
(perhaps after two rounds of ping pong?), invoked by a vote in
the Commons initiated by the minister in charge after exhausting
whatever efforts to secure compromise between the Houses s/he
had considered appropriate. This should be made applicable to
legislation originating in either House".
70. The Campaign for a Democratic Upper House also
suggested a number of possible additional mechanisms which could
be deployed to buttress the primacy of the House of Commons: a
requirement for the Prime Minister to be appointed from the Commons;
a rule that no more than 20 per cent of Ministers (or paid Ministers)
may be members of the second chamber; a clear statement of the
roles, functions and status of the two Houses; lower salaries;
and a job description for members of the Lords to differentiate
their role from the Commons. 
71. The applicability of the Parliament Acts once
the House of Lords is "constituted on a popular basis",
to paraphrase the 1911 Act, was commented upon in evidence to
us by Rt Hon Lord Goldsmith QC and by Lord Pannick. This issue
is considered in section 22 below.
72. Commons primacy could be buttressed by further
limiting in statute the powers of the House of Lords by, for example:
- limiting the suspensory veto
under the Parliament Acts tosaysix months;
- extending the Parliament Acts to amendments made
to Lords bills in the Commons;
- replacing the power to reject statutory instruments
with a power to delay.
The Clerk of the Parliaments confirmed in his evidence
to us that such limitations were in theory possible, although
he expressed doubts as to both their workability and practical
73. Professor Vernon Bogdanor also expressed the
view that "Proposals to limit the power of the new second
chamber would commit the absurdity of giving an elected chamber
less power than the current unelected House".
Some members of the Committee, meanwhile, believe that the election
of the Lords will inevitably erode Commons primacy and that it
will necessitate a constitutional settlement on the conventions,
powers, rights, and privileges of both Houses of Parliament. There
is a minority view on our Committee that, given the undoubted
fact that primacy will move measurably towards the House of Lords
under this Bill, the 1949 Parliament Act should be repealed thus
restoring the allowable delay for non-financial measures to two
years as originally provided for in 1911.
74. A majority
of the Committee does not advocate any proposals for making statutory
provision to entrench Commons primacy. These ideas and others
in the same vein may be brought forward during the legislative
passage of the Bill through Parliament. If such proposals are
advanced, it may be expected that they will meet opposition on
the grounds that they would diminish the powers of an elected
House of Lords too greatly, that they would weaken scrutiny of
the Executive, or that they would be meaningless and unworkable.
Such proposals may also give rise to the possibility of judicial
intervention which the Committee considers to be profoundly undesirable.
75. As we have said above, the primacy of the Commons
is only partly expressed in statutes such as the Parliament Acts
and the various Acts making exceptions to the general rule that
secondary legislation requires the approval of both Houses or
may be struck down by either House. The relationship between the
two Houses and the way in which they exercise their wide powers
in relation to each other are largely determined by certain conventions.
The remit of the Joint Committee on Conventions of the UK Parliament,
appointed in 2006 and chaired by Lord Cunningham of Felling, required
it to accept the primacy of the House of Commons. The Joint Committee
("the Cunningham Committee") did not offer a definition
of "convention", believing that it would know one when
it saw one.
76. The Cunningham Committee suggested that the Salisbury-Addison
Convention be described as the Government Bill Convention, which
it formulated thus:
In the House of Lords:
- A manifesto Bill is accorded a Second Reading;
- A manifesto Bill is not subject to 'wrecking
amendments' which change the Government's manifesto intention
as proposed in the Bill; and
- A manifesto Bill is passed and sent (or returned)
to the House of Commons, so that they have the opportunity, in
reasonable time, to consider the Bill or any amendments the Lords
may wish to propose.
The Cunningham Committee, having noted the difficulties
about defining a "manifesto Bill", did not recommend
any attempt to define one, but expressed the hope "that it
will be as possible to deal pragmatically with any problems which
may arise as it has in the past".
77. The Cunningham Committee agreed that it was a
convention that the Lords should consider Government business
in reasonable time.
But it went on to note that there was no conventional definition
of 'reasonable', and concluded "we do not recommend that
one be invented. The Government wants to define 'reasonable' or
set a time limit; but in our view there is no problem which would
be solved by doing so".
78. The Cunningham Committee agreed that the exchange
of amendments between the Houses was an integral part of the legislative
process, carried on within the context of the primacy of the House
of Commons and the complementary revising role of the House of
Lords, was not a convention, but a framework for political negotiation.
The Cunningham Committee called for more rigorous observation
of the convention that neither House would in general be asked
to consider Amendments without notice.
79. In relation to financial privilege, the Cunningham
Committee concluded that "If the Commons have disagreed to
Lords Amendments on grounds of financial privilege, it is contrary
to convention for the Lords to send back Amendments in lieu which
clearly invite the same response".
80. On secondary legislation, the Cunningham Committee
took the view that opposition parties should not normally use
their numbers in the House of Lords to defeat an statutory instrument
simply because they disagreed with it, as this would be contrary
to the fundamental conventions which govern the relationship between
the Houses and would also defeat the purpose of delegating that
particular legislative power to Ministers in the first place.
81. The Cunningham Committee agreed unanimously that
conventions as such were flexible and unenforceable,
and was opposed to legislation or any other form of codification
which would turn conventions into rules, remove flexibility, exclude
exceptions and inhibit evolution in response to political circumstances.
The final recommendation from the Cunningham Committee was that
the courts have no role in adjudicating on possible breaches of
82. The Cunningham Committee noted that the conventions
would be affected by House of Lords Reform. It stated that:
"Our conclusions apply only to present circumstances.
If the Lords acquired an electoral mandate, then in our view their
role as the revising chamber, and their relationship with the
Commons, would inevitably be called into question, codified or
not. Given the weight of evidence on this point, should any firm
proposals come forward to change the composition of the House
of Lords, the conventions between the Houses would have to be
examined again. What could or should be done about this is outside
Both Houses debated the report in January 2007 and
took note with approval.
83. Much of the evidence on conventions we received
recognised that in greater or lesser degree they would be affected
by reform and could be expected to evolve. Thus the Minister acknowledged
to us in oral evidence that "the exact relationship [between
the Houses] and the conventions will change over time".
Peter Riddell told us that the current conventions were not sustainable
with a predominantly or wholly elected upper House and that he
expected there to be a "bruising interlude" before the
relationship settled down and a new set of conventions developed.
Meanwhile Professor Vernon Bogdanor stated that current conventions
would have to be revisited if the Lords were to be elected:
"The conventions regulating the relationship
between the Lords and the Commons are unlikely to survive an elected
chamber. The third paragraph of the preamble to the 1911 Parliament
Act recognises this in suggesting that, for a chamber constituted
on a 'popular' basis, new proposals would be needed 'for limiting
and defining the powers of the new Second Chamber'. But the government
has made no such proposals for limiting and defining powers of
its proposed 'new Second Chamber'".
84. Rt Hon Paul Murphy MP also expected the existing
conventions to be called into question: "the whole situation
changes when people are elected to it. You can have all the agreements
and conventions in the world, but realpolitik takes over".
85. Professor Dawn Oliver drew attention to the likelihood
of a more assertive Lords, suggesting that the existing Salisbury-Addison
convention depended largely on the fact that "the House of
Lords knows jolly well that it does not have democratic legitimacythat
is why it more or less follows the conventionbut if the
House of Lords knew that it did have democratic legitimacy I do
not see why it would feel it necessary to obey the convention".
Drawing on the Australian experience, however, Dr Meg Russell
of University College, London told us that in systems with two
elected Houses, it was their relative legitimacy which was politically
"Members of the lower House [in Australia] do
their best to argue that the primary House is the more legitimate
... despite the fact that both Chambers are elected. There are
a number of things in the Government's proposals that seek to
create that kind of situationthe long terms of office,
the non-renewability of terms, the renewal in parts and so onand
those aspects of the proposals are very important".
86. Thus several contributors questioned whether
the conventions would unravel if the Lords were to be elected.
Unlock Democracy pointed to the Australian Senate which "demonstrates
that it is possible for a directly elected second chamber, even
one with more formal powers than the House of Lords, to be constrained
Dr Alan Renwick also considered that an elected Lords might not
necessarily fundamentally question existing arrangements, though
he accepted that reform would lead to a more powerful Lords:
"... the reformed second chamber would have
greater democratic legitimacy; but it would still be constrained
by the Parliament Acts and probably by some conventional constraints,
and the government would still be based in the House of Commons".
87. The Hansard Society suggested that "reform
of the House of Lords would provide the necessary impetus to undertake
such work; codifying the desired conventions between the two Houses
would establish a clear and shared understanding of the relationship
between the Housesfor example, in relation to the extent
of the Lords' delaying powersand thereby ensure that it
is more likely to be respected in the future".
The Council of the Law Society of Scotland and Liam Finn, a Law
undergraduate at the University of Cambridge, went further, suggesting
that the Salisbury-Addison convention be put on a statutory basis:
"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".
88. Several submissions accepted that the conventions
would come under strain, but questioned whether they could be
codified. Donald Shell stated that conventions could not be codified
as this "would be to impose rigidity on rules which depend
for their effectiveness on their flexibility, and their capacity
thereby to change and adapt to meet new situations".
Peter Riddell noted that: "By definition, conventions are
unenforceable and only work if there is a shared understanding
and acceptance of what they mean".
Lord Howarth of Newport stated: "you cannot legislate to
perpetuate conventions, which are the product of a particular
history and dynamic and whose acceptance depends upon their reflecting
a particular reality, in this case the relationship between an
elected and an unelected House". This would be especially
true for a "flexible, unwritten constitution" combined
with a "doctrine of the omni-competence of statute".
89. By way of meeting this challenge, Damien Welfare,
Co-ordinator of the Campaign for a Democratic Upper House proposed
the establishment of a political and constitutional framework
within which the two Houses would come to parallel Resolutions
expressing the terms of conventions agreed upon a by a Joint Committee,
which would continue to review the conventions as they evolve
and recommend adoptions of new ones.
One area he identified for some sensible developments in the conventions
was in relation to "ping-pong" and exchanges of amendments
90. We deal in section 14 below with whether a new
understanding between the Houses might be required on taking up
91. We agree
with the weight of the evidence we have received which suggests
that the conventions governing the relationship between the two
Houses will evolve further once the House of Lords is reformed
and would need to be re-defined.
92. As we have
already said, the essential character of conventions cannot be
preserved if they are defined in legislation. The Government's
approach in Clause 2(1)(c) of the Bill of simply referring to
conventions in a general Savings Clause is not only ineffective
but risks judicial intervention in the most highly-politicised
circumstances of all, a dispute over the conduct of business between
the two Houses. This would be a constitutional disaster.
93. We think
it inevitableand desirablethat following any reform
the two Houses will need to establish a means of defining and
agreeing the conventions governing the relationship between the
two Houses and thereafter keeping them under review. We agree
that any new conventions or modifications of existing conventions
should be promulgated by the adoption of a "concordat"
in the form of parallel, identical resolutions prepared by a Joint
Committee and adopted in each House. We note, however, that any
concordat will only have force so long as both chambers continue
to accept its terms.
94. The question then arises when such an exercise
should be conducted. We agree
with the Cunningham Committee report, noted with approval by both
Houses of Parliament, that as there are now firm proposals in
this draft legislation to change the composition of the House
of Lords preliminary work should begin as soon as possible. We
recognise, however, that it cannot be completed until after 2015.
There would be little point in finalising a concordat to which
elected members of the second chamber were not a party.
15 Cm 8077, page 5 Back
Q 33 Back
Q 273 Back
Q 639 Back
Q 494 Back
Q 224 Back
Damien Welfare and Campaign for a Democratic Upper House (Q 570),
Unlock Democracy, Electoral Reform Society, Lord Foulkes of Cumnock,
Green Party, Alan Renwick, Fawcett Society Back
Q 309. The 2010 British Social Attitudes Survey found of those
asked about the Lords: 6 per cent wanted it wholly appointed;
31 per cent mainly/wholly elected; 28 per cent equally elected/appointed;
22 per cent abolished. A January 2012 YouGov poll found that 10
per cent supported a wholly appointed House, 39 per cent a fully
elected House and 32 per cent a partially elected one. See: House
of Lords Library, Public Attitudes Towards the House of Lords and House of Lords Reform,
(March 2012). However, a 2006 Populus poll found that respondents
could hold contradictory positions: 75 per cent of respondents
believed that the House of Lords should remain a largely appointed
chamber and 72 per cent thought at least half the members should
be elected. An Ipsos MORI poll conducted in 2007 also showed
that respondents prioritised trust in the appointments process,
detailed legislative scrutiny, the presence of experts, and making
decisions in accordance with public opinion over the presence
of elected members. Back
Q 222 Back
Q 222 Back
Archbishops of Canterbury and York. See also Lord Grenfell Back
Lord Cormack Back
Q 100 Back
Cm 8077, page 10 Back
HL Paper 17, Session 2002-03, pages 7-13 Back
Q 14, Constitution Committee, Meeting with Nick Clegg MP, Deputy
Prime Minister, 1 February 2012 Back
Q 254 Back
David Howarth set out alternative "functions" in his
chapter "Addressing the central policy questions"
in "The End of the Peer Show", pages 103-8 Back
Lord Cormack Back
Electoral Reform Society Back
Law Society of Scotland Back
Dr Meg Russell. See also Q 166 Back
Q 2 Back
Professor Vernon Bogdanor. See also Q 94 Back
Mr Peter Riddell Back
Q 439 Back
Paul Murphy MP (Q 604), Lord Cormack, Dr Colin Tyler, Conor Burns
MP, Thomas Docherty MP Back
Q 498 Back
Donald Shell Back
Dr Alan Renwick (Q 196), David Howarth (QQ 230-31), Damien Welfare
(Campaign for a Democratic Upper House), Professors Simon Hix
and Iain McLean, Democratic Audit, Unlock Democracy Back
Cm 8077, page 11 Back
Ibid., page 7 Back
Erskine May, 24th edition, page 786 Back
Cm 8077, page 11 Back
Ibid., page 11 Back
Ibid.,page 11 Back
Cabinet Office's Guide to Making Legislation, Chapter 9 Back
Q 47 Back
Erskine May, 24th edition, page 282 Back
Q 681 Back
See Section 21 below on Parliamentary privilege for further discussion
of this issue. Back
Q 499 Back
Q 696 Back
Q 680 Back
Q 129 Back
Q 153 Back
Q 197 (Dr Alan Renwick) Back
Q 192 Back
Q 229 Back
Q 230 Back
Dr Alan Renwick Back
Q 354 Back
Hansard Society Back
Q 289 Back
Electoral Reform Society Back
Erskine May, 24th edition, page 181 Back
Cm 8077, page 164 Back
Donald Shell, Unlock Democracy, Damien Welfare and the Campaign
for a Democratic Upper House Back
Professors Simon Hix and Iain McLean Back
Electoral Reform Society Back
Vernon Bogdanor Back
Lord Peston, Lord Barnett and Baroness Gould of Potternewton Back
Lord Howarth of Newport Back
Q 652 Back
Penny Mordaunt MP Back
Christopher Hartigan, John F H Smith, Lord Judd, The Bishop of
Worcester, Bernard Jenkin MP, Pauline Latham MP, Dr Julian Lewis
MP, Richard Douglas, The Muslim Council of Britain, Joseph Corina,
Lord Bilston et al, Archbishops of Canterbury and York, Lord Higgins,
Conor Burns MP, Thomas Docherty MP Back
QQ 116,129 Back
Q 178 Back
Lord Desai Back
Donald Shell Back
Damien Welfare and the Campaign for a Democratic Upper House Back
QQ 623-6 Back
Professor Vernon Bogdanor Back
HL Paper 265-I/HC 1212-I of Session 2005-06, paragraph 17 Back
Ibid., paragraph 113 Back
Ibid., paragraph 153 Back
Ibid., paragraph 154 Back
Ibid., paragraph 168 Back
Ibid., paragraph 169 Back
Ibid., paragraph 252. See also Companion to the Standing
Order and Guide to the Proceedings of the House of Lords,
2010 edition, paragraph 8.182 Back
Ibid., paragraph 230 Back
Ibid., paragraph 281 Back
Ibid., paragraph 284 Back
Ibid., paragraph 285 Back
Ibid., paragraph 61 Back
House of Lords Journal, 2006-07, Vol 240, page 150; House of Commons
Journal, 2006-07, Vol 263, page 109 Back
Q 8 Back
Q 116 Back
Professor Vernon Bogdanor Back
Q 610 Back
Q 143 Back
Q 178 Back
Unlock Democracy Back
Dr Alan Renwick Back
Hansard Society Back
The Law Society of Scotland, Liam Finn Back
Donald Shell Back
Peter Riddell Back
Lord Howarth of Newport Back
Q 569 Back
Q 573 Back