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

Appendix 7: Supplementary written evidence on Clause 2 from Mr Mark Harper MP


Paper from the Minister for Political and Constitutional Reform

1. This paper explains the Government's thinking in drafting clause 2 of the draft House of Lords Bill, and the alternatives that were considered.

2. The Government has agreed that, in principle, there should be no fundamental change to the relationship between the two chambers and the House of Commons should retain its primacy.

3. The draft Bill deals with membership of the reformed House of Lords and the Government has made clear that it does not propose to change its functions. It will continue to scrutinise legislation, hold the government to account and conduct wider investigations. The Government does not intend to change the powers, rights, privileges or jurisdiction of the House of Lords (with limited exceptions eg new power to expel members).

4. However, a reformed House of Lords with an electoral mandate could be more assertive. The Government does not believe that that is incompatible with maintaining primacy of the House of Commons or that conventions would not be able to develop to deal with a new situation

5. The primacy of the Commons is not simply a matter of convention and of the Parliament Acts of 1911 and 1949. It is not only the conventions governing the relationship between the Houses which are relevant to primacy. Primacy also rests in the fact that the Prime Minister and most of the Government of the day are drawn from the House of Commons. The whole of the House of Commons will be renewed at each election, and that will clearly be the election through which the Government is chosen. Only a proportion of the House of Lords will be elected at each election.

6. This paper discusses whether and how this relationship could be set out in primary legislation and provides the background into the issues the Government took into consideration when producing clause 2 of the draft Bill.

7. There are a number of approaches to preserving the primacy of the House of Commons. The Government's preferred approach is to preserve the current situation of a non-legislative, flexible relationship between the two Houses which can evolve, but to state on the face of the legislation that changes made by the Bill itself are not to affect the current powers. However, we also considered three other options which are detailed below.

Government's preferred approach: a general clause

8. This approach involves a clause in the draft Bill which sets out that the reformed House of Lords is a House of Parliament; a statement of the primacy of the House of Commons; and a statement that the Bill itself, other than where explicitly stated, is not to affect the privileges, powers, rights and jurisdiction of the House of Lords or the conventions governing the relationship between the two Houses of Parliament.

9. The advantages of this approach are that the Parliament Acts would be preserved but not expressly extended, limited or otherwise affected; the position of the House of Commons as the primary chamber would be given statutory underpinning (in addition to that already afforded under the Parliament Acts) and the conventions would be recognised but not defined. This approach also leaves room for flexibility in the future. Although the clause states that "This Act does not affect the conventions…", the conventions can by their nature continue to evolve in response to other circumstances, just not as a direct result of the Act's provisions regarding the transition from the present House of Lords to the reformed House.

10. The possible disadvantage of this approach is that although the clause serves to underline the primacy of the House of Commons and the relationship between the Houses at the point of transition, permitting a degree of evolution and flexibility will be at the cost of some precision and may not guard against a gradual shift in the relationship between the Houses so far as it exists in convention. This is of course always against the long-stop of the Parliament Acts, which already provide a legislative expression of Commons supremacy.

Other options considered

Option 1: Set out each of the powers and the relationship between the two Houses in statute.

11. This would be the most detailed form of codification, and would involve setting out in full the relationship between the two Houses, defining the primacy of the House of Commons, assigning powers and functions to each House (because it would be difficult to discuss powers and the limits on them without reference to what each House does), and defining all the aspects of financial privilege and the scope of each of the conventions.

12. The advantages of this would be a degree of certainty and precision, which would be a settled and agreed basis on which the relationship between the two Houses would then have to operate. Statutory codification might also serve to reassure those concerned about the gradual erosion of the primacy of the House of Commons as the reformed House of Lords gained in legitimacy and assertiveness.

13. However, there are disadvantages of this approach. In particular, to define in statute the relationship between the two Houses could be a broader exercise than setting out those elements outlined above, and could extend to the operation of Parliament as a whole. Second, to define each element would be extremely difficult to achieve, because it would require agreement between the Houses and Government as to the existing relationship with a far greater degree of precision than even the report of the Joint Committee on Conventions achieved. This would include, for example, defining in statute each of the elements of financial privilege; when it could be waived; what constituted a manifesto commitment and what kinds of amendments the House of Lords would be permitted to make before they were "wrecking amendments" for the purposes of the Salisbury-Addison convention; and the exceptional circumstances in which it would be permissible for the House of Lords to reject secondary legislation.

14. This exercise would itself affect the nature of the relationship between the Houses, which is based on convention and flexibility, with use of the legislative long-stop of the Parliament Acts as a last resort. It could also inadvertently affect the existing relationship, for example in the inter-relationship between the Parliament Acts and the Salisbury-Addison convention once the latter was given statutory status.[469]

15. Finally this option would inhibit flexibility in further development of conventions in response to political circumstances—they would cease to be conventions—and would be the option most likely to increase the role of the courts in scrutinising Parliamentary procedure. The courts will generally be reluctant to enter into Parliament's domain, in accordance with parliamentary privilege. However, the courts were in no doubt that they had jurisdiction to consider the challenge to the Parliament Acts in the Hunting Act case, on the basis that the case concerned a matter of statutory interpretation (s.2 of the 1911 Act) which was a matter for the courts. In approaching a complete statutory codification of the relationship between the Houses, the courts would be likely to continue to respect Parliamentary privilege, so not all aspects would automatically become justiciable, but challenges would lead to tension as to where the boundary between that privilege and questions of statutory interpretation properly lies, and in particular the use to which proceedings in Parliament may be cited in cases concerning questions of interpretation.

Option 2: As Option 1, but in addition amend the Parliament Acts to include further key elements of privilege, for example the Salisbury-Addison convention and/or aspects of financial privilege

16. This option would involve a general clause similar to that in clause 2 of the draft Bill, but at the same time codifying in statute key elements of the relationship which were thought to warrant legislative protection. These might perhaps include the Salisbury-Addison convention and some aspects of financial privilege, for example in relation to Bills of Aid and Supply. The advantages of such an approach would be that the most important elements of the existing relationship would be preserved and defined in statute, leaving the other conventions to evolve. It would not therefore require the wholesale approach of Option 1, but could give greater protection to key conventions than clause 2.

17. However, there are a number of problems with this kind of "partial codification" approach. Legally, even a more limited codification would lead to many of the problems outlined above in relation to Option 1, in particular of pinning down the existing scope and of definition. For example, in relation to the Salisbury-Addison convention, it would be necessary to set out what "quality" of electoral commitment triggered the convention. Manifesto commitments may be open to different interpretations, and there is a question of whether in fact reference to a "manifesto commitment" is convenient shorthand for any commitment which has been specifically endorsed by the electorate. Similarly, the question of how the convention applied to Lords amendments, and in particular when an amendment was a "wrecking amendment", could be very difficult to define. There would then be the question of the inter-relationship between the legislative and non-legislative aspects of the convention, for example, whether legislating would end the practice, recognised by the Joint Committee on Conventions, of the Lords giving a second reading to any Government Bill, whether in the manifesto or not. There are additional issues in relation to the practicalities of any such legislation. For example, although it might be possible to legislate that the House of Lords may not vote against a Manifesto Bill on second reading, it would not be possible to legislate to require them to consider such a Bill once they had given it a second reading without rapidly getting into the details of parliamentary procedure. In legislative, as opposed to conventional terms, there is only a small space which is not already occupied by the Parliament Acts. Similar issues would arise as regards codifying financial privilege, in particular, in separating out its constituent parts with sufficient precision.

18. Finally, the Hunting Act challenge suggests how the courts might view their role in relation to an extension of the Parliament Acts, so for example, they might be prepared to consider whether a particular piece of legislation satisfied the definition of a "manifesto bill", however defined, while not examining the Parliamentary proceedings in relation to that Bill.

Option 3: Remain silent on the face of of the Bll in relation to each of the powers and the relationship between the two Houses in statute.

19. As a matter of law, primary legislation does not need to deal with powers and the relationship between the two Houses. If the Bill was silent on powers and the relationship between the Houses, the current position would not be changed by the Bill.

20. However, including a general clause would provide clarity and provide reassurance that the House of Commons would retain its primacy.


21. The Government came to the conclusion that a general clause was the best way of achieving its intentions. Clause 2 was therefore included in the draft Bill. However, the Joint Committee on the draft House of Lords Bill, as a Joint Committee of both Houses, is in a good position to consider this issue and the Government looks forward to its report.

Cabinet Office

8 March 2012

469   For example, the convention would prevent a "manifesto bill" from being "killed" in the second session in which it was introduced, but there is a question about how this would operate with the requirements of the Parliament Acts. For example, the European Parliamentary Elections Bill was initially rejected by the Lords and had to be reintroduced under the Parliament Acts. However, time was running out to put in place the legislation for the European Parliamentary elections. By agreement with the Opposition, the Bill was voted down at Second Reading in the second session, which enabled it to proceed straight to Royal Assent. A question would arise as to how to preserve this element of flexibility if the convention were codified.  Back

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