Draft House of Lords Reform Bill - Joint Committee on the Draft House of Lords Reform Bill Contents

2  Functions, Role, Primacy and Conventions

1. The principle of an electoral mandate

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]

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".[16] 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 voters—in terms of the party members—rather than by their parties".[17] 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".[18] Lord Adonis took the view "that people who make the law should be elected—period".[19] 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.[20] Other witnesses agreed with this principle.[21]

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".[22]

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".[23] 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".[24] 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".[25]

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 given—so much so it comes close to being unstated—but 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.[26]

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 ...".[27]

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 necessary—even paramount—and 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".[28]

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.[29] 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".[30] In addition to these functions—legislation, scrutiny and debate—an 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".[31] 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.[32] 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".[33] The Electoral Reform Society saw reform as "a means to preserve and enhance the Chamber's vital constitutional role".[34] 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 by reform".[35]

28. But while witnesses thought that the functions of the current House should be preserved—whether or not the House was reformed—it 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".[36]

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".[37]

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".[38] 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".[39] 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".[40] Others were of similar opinion.[41]

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".[42] 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".[43]

32. Several witnesses who saw merit in a more assertive House agreed that any heightened assertiveness could be manageable.[44] 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 Lords—including 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 of Parliament.[45]

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 Commons".[46]

39. The statutory provisions which underpin the primacy of the House of Commons include but are not limited to:

  • the Parliament Acts 1911 and 1949;
  • 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 1678:

"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".[47]

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; and
  • 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.[48] 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.[49]

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.[50]

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 of Lords?


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 various proposals.[51] 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.[52] The Committee deeply regrets that the Government felt unable to disclose this advice—it 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 in statute.

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 disputed",[53] it 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 good idea".[54]

49. Furthermore, 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.[55]

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".[56] 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".[57] 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 happen—that profound changes can take place—but nothing else will be changed".[58] Peter Riddell, regarded Clause 2 as defective.[59]

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".[60] Others expressed similar views.[61] According to Dr Meg Russell of University College, London, "Clause 2 of the Bill is a fiction; it is pretty meaningless".[62]

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".[63] 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".[64]

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.


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".[65]

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 prime—the stronger—of 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 thing? No".[66]

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".[67] 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 primacy".[68] The 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.[69]

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".[70]

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".[71] Other witnesses agreed,[72] 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 house—two-thirds of whom will have been elected more than five years ago".[73] 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.[74]

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".[75] 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.[76]

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".[77] 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 myself—this is an eventuality that I can only marginally imagine—in 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 spent".[78]

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.[79] A number of other submissions also maintained that an elected House of Lords would challenge the primacy of the House of Commons.[80] 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 limited—the absolute bar on amending designated finance Bills and the one year suspensory veto—but 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 resistance—the 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".[81]

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 same way".[82]

64. We 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.

67. Opinion 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 its continuation.

4. Primacy: additional statutory provision

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.[83] 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".[84]

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. [85]

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 to—say—six 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 effect.[86]

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".[87] 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.

5. Conventions

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.[88]

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".[89]

77. The Cunningham Committee agreed that it was a convention that the Lords should consider Government business in reasonable time.[90] 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".[91]

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.[92] The Cunningham Committee called for more rigorous observation of the convention that neither House would in general be asked to consider Amendments without notice.[93]

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".[94]

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.[95]

81. The Cunningham Committee agreed unanimously that conventions as such were flexible and unenforceable,[96] 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.[97] The final recommendation from the Cunningham Committee was that the courts have no role in adjudicating on possible breaches of parliamentary convention.[98]

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 our remit".[99]

Both Houses debated the report in January 2007 and took note with approval.[100]

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".[101] 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.[102] 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'".[103]

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".[104]

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 legitimacy—that is why it more or less follows the convention—but 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".[105] 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 significant:

"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 situation—the long terms of office, the non-renewability of terms, the renewal in parts and so on—and those aspects of the proposals are very important".[106]

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 by convention".[107] 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".[108]

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 Houses—for example, in relation to the extent of the Lords' delaying powers—and thereby ensure that it is more likely to be respected in the future".[109] 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".[110]

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".[111] Peter Riddell noted that: "By definition, conventions are unenforceable and only work if there is a shared understanding and acceptance of what they mean".[112] 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".[113]

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.[114] One area he identified for some sensible developments in the conventions was in relation to "ping-pong" and exchanges of amendments to Bills.[115]

90. We deal in section 14 below with whether a new understanding between the Houses might be required on taking up constituency cases.

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 inevitable—and desirable—that 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

16   Q 33 Back

17   Q 273 Back

18   Q 639 Back

19   Q 494 Back

20   Q 224 Back

21   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

22   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

23   Q 222 Back

24   Q 222 Back

25   Archbishops of Canterbury and York. See also Lord Grenfell Back

26   Lord Cormack Back

27   Q 100 Back

28   Cm 8077, page 10 Back

29   HL Paper 17, Session 2002-03, pages 7-13 Back

30   Q 14, Constitution Committee, Meeting with Nick Clegg MP, Deputy Prime Minister, 1 February 2012 Back

31   Q 254 Back

32   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

33   Lord Cormack Back

34   Electoral Reform Society Back

35   Law Society of Scotland Back

36   Dr Meg Russell. See also Q 166 Back

37   Q 2 Back

38   Professor Vernon Bogdanor. See also Q 94 Back

39   Mr Peter Riddell Back

40   Q 439 Back

41   Paul Murphy MP (Q 604), Lord Cormack, Dr Colin Tyler, Conor Burns MP, Thomas Docherty MP Back

42   Q 498 Back

43   Donald Shell Back

44   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

45   Cm 8077, page 11 Back

46   Ibid., page 7 Back

47   Erskine May, 24th edition, page 786 Back

48   Cm 8077, page 11 Back

49   Ibid., page 11 Back

50   Ibid.,page 11 Back

51   Cabinet Office's Guide to Making Legislation, Chapter 9 Back

52   Q 47 Back

53   Erskine May, 24th edition, page 282 Back

54   Q 681 Back

55   See Section 21 below on Parliamentary privilege for further discussion of this issue. Back

56   Q 499 Back

57   Q 696 Back

58   Q 680 Back

59   Q 129 Back

60   Q 153 Back

61   Q 197 (Dr Alan Renwick) Back

62   Q 192 Back

63   Q 229 Back

64   Q 230 Back

65   Dr Alan Renwick Back

66   Q 354 Back

67   Hansard Society  Back

68   Q 289 Back

69   Electoral Reform Society  Back

70   Erskine May, 24th edition, page 181 Back

71   Cm 8077, page 164 Back

72   Donald Shell, Unlock Democracy, Damien Welfare and the Campaign for a Democratic Upper House Back

73   Professors Simon Hix and Iain McLean  Back

74   Electoral Reform Society  Back

75   Vernon Bogdanor Back

76   Lord Peston, Lord Barnett and Baroness Gould of Potternewton Back

77   Lord Howarth of Newport  Back

78   Q 652 Back

79   Penny Mordaunt MP  Back

80   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

81   QQ 116,129 Back

82   Q 178 Back

83   Lord Desai  Back

84   Donald Shell Back

85   Damien Welfare and the Campaign for a Democratic Upper House  Back

86   QQ 623-6 Back

87   Professor Vernon Bogdanor  Back

88   HL Paper 265-I/HC 1212-I of Session 2005-06, paragraph 17 Back

89   Ibid., paragraph 113 Back

90   Ibid., paragraph 153 Back

91   Ibid., paragraph 154  Back

92   Ibid., paragraph 168 Back

93   Ibid., paragraph 169 Back

94   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

95   Ibid., paragraph 230 Back

96   Ibid., paragraph 281 Back

97   Ibid., paragraph 284 Back

98   Ibid., paragraph 285 Back

99   Ibid., paragraph 61 Back

100   House of Lords Journal, 2006-07, Vol 240, page 150; House of Commons Journal, 2006-07, Vol 263, page 109 Back

101   Q 8 Back

102   Q 116 Back

103   Professor Vernon Bogdanor Back

104   Q 610 Back

105   Q 143 Back

106   Q 178 Back

107   Unlock Democracy Back

108   Dr Alan Renwick Back

109   Hansard Society Back

110   The Law Society of Scotland, Liam Finn  Back

111   Donald Shell Back

112   Peter Riddell Back

113   Lord Howarth of Newport Back

114   Q 569 Back

115   Q 573 Back

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Prepared 23 April 2012