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Joint Committee on House of Lords Reform First Report

PART 2: ROLES, CONVENTIONS, FUNCTIONS AND POWERS[5]

Role in relation to the Commons

9. It is generally recognised that reform of the House of Lords would have a significant effect on its role in relation to the House of Commons. That is a key constitutional issue, which needs to be considered in the context of existing conventions, which we consider, on the whole, to work well. But there are other roles for the new House, including the way in which it can better represent society as a whole, as well as the nations and regions of our country.

10. One of the principal arguments for having second chambers - and we find little support in the evidence we have examined for unicameralism in the United Kingdom - is that such chambers provide an opportunity for second thoughts. The revising role of the existing House of Lords has been progressively strengthened by the arrival of Life Peers since 1958 (bringing specialist knowledge in many fields including the public service, science and medicine, academic life, the voluntary sector, business and industry, etc.) and by the increase in the numbers and importance of the Crossbenchers, who do not take any party whip, and add an invaluable independent approach to scrutiny. Under both Conservative and Labour governments, the House of Lords has played a significant role in amending legislation, sometimes in considerable detail, throughout the period from 1970 to the present. The value of the Lords revising and advisory role is widely acknowledged, for example by the Commons Select Committee on Public Administration, which noted that the House is regarded as "very effective in carrying out a range of scrutiny and legislative work".[6] That role does not challenge the convention that, in the last resort, the House of Commons has the final word.

The Existing Conventions

11. Whilst this role of revision is identified in all the papers referred to us, insufficient attention has been paid to the conventions that actually govern how the Lords conducts its business and behaves towards the Commons. We consider that these existing conventions, which are of a self-restraining nature, impact profoundly on the relations between the Houses and need to be understood as a vital part of any future constitutional settlement.

12. The two most significant conventions are that the House of Commons shall finally have its way and that the Government is entitled to have its business considered without undue delay. The first of these understandings is embodied, in relation to manifesto bills, in the Salisbury Convention, formulated by the then Viscount Cranborne (when he was Leader of the Conservative Opposition from 1945-51)[7] whereby the Opposition (of whichever party is in Government) refrains from voting against the second reading of any Government Bill which had been part of that party's election manifesto. The second convention, that the Government should have its business, also implies, as the Royal Commission noted, that such business should be considered within a reasonable time.[8] Other more pragmatic practices (including, for example, the end of session procedures known as "ping pong") relate to the point at which the Lords will give way in a struggle over amendments. Taken together, these conventions govern the day-to-day relations between the Houses during a parliamentary session, contributing in a significant way to the overall effectiveness of Parliament as a place where business is transacted efficiently. The House of Lords could depart from any of these conventions at any time and without legislation, and might well be more inclined to do so if it had been largely (and recently) elected. But the continuing operation of the existing conventions in any new constitutional arrangement will be vital in avoiding deadlock between the Houses - which could all too easily become an obstacle to continuing good governance. We therefore strongly support the continuation of the existing conventions. When the views of the Houses on composition are made known, we will return to the detailed matter of how these important conventions should be maintained in a new constitutional settlement between the Houses.

Other Roles

CONSTITUTIONAL LONG STOP

13. The Royal Commission Report stated that one of the most important roles of a reformed second chamber would be to act as a "constitutional long stop". In other words it should ensure that changes of a constitutional nature are not made without full and open debate and without awareness of the consequences. One existing constitutional check is the Lords' veto over the dismissal of office holders, including, for example, High Court judges, the Comptroller and Auditor General and the Information Commissioner. It is an important way of ensuring, as the Royal Commission noted, their independence from the Executive.[9]

14. Another constitutional check is contained in the provision of the Parliament Act 1911 which limits the life of Parliament to five years. The Lords can thereby prevent a Government, with its control of the Commons, from legislating to extend its own existence.[10]

15. The Royal Commission supported the retention of existing powers in this general area of what might be called constitutional guardianship, but resisted any further extension of the Lords' constitutional role - such as an absolute veto on all "constitutional" bills or the extension of the suspensory veto for two years in the case of such bills, whether they were to be defined by a Speaker's certificate or by the Lords itself.[11] Nor did it support recourse to a referendum when there was a clash between the Houses over a constitutional bill. The Commons' Select Committee, for its part, suggested that the matter of how to deal with constitutional bills might be further considered by the House of Lords Constitution Committee, which was set up following the Royal Commission's recommendation.[12] We intend to return to the matter of the constitutional role of the Lords in the later stages of our work but we underline its importance here.

ROLE IN RELATION TO THE PUBLIC: A NEW LEGITIMACY

16. The lack of representativeness of the hereditary House gradually diminished its authority in the twentieth century. This perhaps had a greater long-term impact than the formal curtailment of the powers of the House by the Parliament Act 1911. Whilst the House subsequently developed its role as a revising chamber after 1945, the continuation of the hereditary element, perceived as inherently unrepresentative, and the massive imbalance of the political parties in the House, called into question its authority. The problem of the House's legitimacy was considered by the Royal Commission. Its view was that insofar as the House became more representative of society as a whole, it would gain legitimacy and with it, confidence.[13] Its recommendations included ensuring that people with particular expertise, for example in human rights or with special spiritual knowledge, as well as representatives of professional and vocational groups (many of whom would not want to stand for election), were among the membership of a reformed House. The composition of the House should take into account gender balance and social characteristics such as the pattern of ethnic groups and different faiths: together these various changes would enhance the legitimacy of the Lords.[14] It will be important to ensure that the reformed House is as inclusively representative as possible. We concur with the conclusions of the Royal Commission that increased representativeness will enhance the legitimacy of the House of Lords. We will consider methods to achieve that end when we deal with getting the right membership of the House later in this report but it is also a matter that will need further careful attention in future.

ROLE IN RELATION TO THE REGIONS AND NATIONS: REPRESENTING THE UNITED KINGDOM

17. A body of opinion envisages the reformed House serving as a Parliamentary focus for the regions and nations of the United Kingdom, rather in the way that upper Houses operate in some of the Commonwealth parliaments or the Senates in the USA or in France. The relationship of a newly reformed House to the devolved bodies is clearly relevant to the perception of that role. The Joint Committee has received a joint representation from the presiding officers of the Scottish Parliament, the National Assembly of Wales and the Northern Ireland Assembly, who are all members of the House of Lords, suggesting that in a reformed House their successors should be ex officio members. The presiding officers say that their membership has not only enabled them to keep abreast of affairs in Parliament, but has also given them a chance to represent the views of Wales, Scotland and Northern Ireland in Parliament.[15]

18. In its report the Commons Public Administration Select Committee dealt with the wider aspects of the relations a reformed House might have with the devolved bodies. It considered the proposal (supported by the Leader of the House of Commons in his evidence to that Committee) that indirect election by the devolved assemblies might be one route of entry to the second chamber, bringing the United Kingdom more in line with the model of second chambers of Europe.[16] The Royal Commission, for its part, did not recommend membership of the devolved assemblies as qualifying for membership of the reformed House. Instead it talked of a new "category of people within Parliament" who would provide a "voice in Parliament" for the regions and nations.[17] We are convinced that a reformed House should contain an appropriate number of members from all parts of the country and later in this report we will consider how this might be achieved. It is difficult to see at the moment structures which are parallel to those to be found in fully federal countries like the USA and Germany upon which to base this representation, although we note in the recent Queen's Speech the Government's intention to hold referendums on the issue of regional governance in England.

Functions

LEGISLATIVE FUNCTIONS

19. One important fact to make clear in discussing the legislative function of the Lords is that much legislation actually begins in the Lords. Although its role as a revising chamber is well known and supported in the documents referred to us, it needs to be understood that a considerable part of the Government's programme, normally about one-third, is introduced in the Lords. Its role as a revising chamber, giving a chance for second thoughts, is, of course important, as we have already said. The Anti-terrorism, Crime and Security Bill considered in November and December 2001 provides a good recent example. Despite its accelerated passage, the House spent 53 hours examining the bill and made substantial and important amendments, which were accepted by Government and Commons alike.[18]

20. The Government has announced that it proposes no change in the legislative powers of the Lords.[19] We do not consider it likely that any Government will be able or wish to change the practice of introducing legislation in the second House but the balance of business between the Houses is something that may need closer parliamentary supervision in future. If both Houses are to act more efficiently as legislative chambers, there will need to be greater co-ordination between them over workloads as the Commons Modernisation Committee has recently pointed out.[20] We consider that a co-ordination of the legislative loads between the Houses is a practical but important part of any new constitutional settlement.

PRE-LEGISLATIVE SCRUTINY

21. The Government is also committed to extending the role of both Houses in the process of pre-legislative scrutiny. It has reasserted its view of the importance of that scrutiny in the recent Queen's Speech, announcing that legislation in draft will be published in three different areas - housing, nuclear liabilities and corruption. Joint Committees have considered the draft Financial Services and Markets Bill, the draft Local Government (Organisations and Standards) Bill and most recently the draft Communications Bill. The Royal Commission supported this practice, recommending that "pre-legislative scrutiny of draft bills should become an established feature of Parliamentary business".[21] The Lords Group on Working Practices has recommended that "virtually all major government bills should, as a matter of course, be subject in draft to pre-legislative scrutiny".[22] The Select Committee on the Modernisation of the House of Commons attaches "the highest importance" to pre-legislative scrutiny.[23] Recognising the practical realities of parliamentary programmes, we nevertheless consider that pre-legislative scrutiny is an important aspect of making the legislature function more effectively and we welcome the proposals announced in the recent Queen's Speech.

SECONDARY LEGISLATION

22. There is a greater diversity of views about the treatment of secondary legislation. The Royal Commission first recommended a change in the status quo (whereby the Lords, like the Commons, can reject statutory instruments).[24] It proposed that if the second chamber votes to annul an instrument, the annulment would not take effect for three months and could in the meantime be overridden by the Commons. The Government, in its White Paper, accepted the Royal Commission's recommendation, arguing that the change would increase the influence of the Lords by enabling it to call the Commons to recast the instrument.[25] Most members who spoke in debate in the House of Commons were against the Government proposals[26] and the Commons Select Committee on Public Administration pointed out that Lord Wakeham has himself expressed second thoughts.[27] The Commons Select Committee itself was unconvinced of the Government proposal and recommended continuance of the existing veto.[28]

23. Affirmative instruments present a more straightforward case since the Lords have almost always refrained from voting on such instruments. It may be that a reformed House might feel reinvigorated enough to act differently, as has happened on one occasion in the recent past.[29] The present veto is a less drastic weapon than it might appear, because it is open to the Government to lay another instrument.[30] When the Houses' views on the matter of composition are known, we shall consider whether any change is needed in the powers of the Lords in this area.

SCRUTINY OF POLICY

24. The scrutiny function of the House of Lords is an important and distinctive part of the parliamentary process of making Government accountable. It is carried out by the whole House as well as by Select Committees. Crossbench members add an element to the scrutiny process which is less noticeable in the Commons, something mentioned in the debates in both Houses.[31] Whilst the House has developed certain Select Committees with notable success (Science and Technology, European Union, and Delegated Powers and Regulatory Reform Committees are usually cited), several members in the debate in the House of Lords expressed the view that the committee system needed improvement in order to maintain its success. We assert the importance of the scrutiny function of the House. At a later stage in our work, we will return to consider how that scrutiny might be made even more effective.

JUDICIAL FUNCTION

25. The existing House acts through its Appellate and Appeals Committees (composed of the Lords of Appeal in Ordinary and other judicially qualified Lords) as the highest court of appeal. There is a current discussion about whether this function should be separated and a United Kingdom Supreme Court established. This is a complex matter which has divided opinion even within the judiciary. Although we may return to it later in our deliberations, we consider the judicial function of the House of Lords to be a matter worthy of independent inquiry and expert attention.[32] Even if a separation takes place it does not need to entail the ending of membership of the House by the law lords.

Powers

PARLIAMENT ACTS

26. Until the twentieth century there was little formal definition of the powers of either House. By various resolutions and under the terms of the Bill of Rights (1689) both Houses had articulated privileges reserved to them, the Commons in particular asserting its control in financial matters more frequently during the seventeenth century.[33] It was with the passing of the Parliament Act 1911 that the Lords legislative power was first restricted by statute.

27. The most important provisions of the Parliament Act 1911 were to -

(i) restrict the Lords' power to reject "money bills" to a month;

(ii) allow a public bill introduced in the Commons to pass into law, though not agreed by the Lords, if passed in the Commons in three successive sessions, with not less than two years elapsing between the second reading in the House of Commons in the first session and the passing of the bill in the House of Commons in the Third Session; and

(iii) alter the provision of the Septennial Act 1715, setting five-year Parliaments.

By the provisions of the Parliament Act 1949, the period of time that needed to elapse (under (ii)) was reduced to one year.

28. Although the Parliament Acts have curtailed the power of the Lords, they have done so in quite narrow circumstances - that of a dispute between the Houses over a particular bill. By virtue of the provision of the 1911 Act of a two-year period between a second reading in the Commons and Royal Assent without Lords concurrence, the practical reality is that a Government could only effectively use it in the first two sessions of a five-year Parliament. The narrowing of the necessary time between stages by the 1949 Act does not seem to have made it a much more attractive tool for Government. Between 1949 and 1997 the Parliament Act was invoked only once (the War Crimes Act 1991) and twice between 1997 and 2002 (the European Parliamentary Elections Act 1999 and the Sexual Offences (Amendment) Act 2000). Two of the three Acts (War Crimes and Sexual Offences) were the subject of a free vote in both Houses. But even though the Parliament Act procedure has only seldom been used, its existence is powerful as a factor in the relations between the Houses and as a constraint on the exercise of the legal powers of the Lords.

29. Despite the terms of the Parliament Acts, the House of Lords, for practical purposes, has retained considerable legislative power. But it has exercised its power responsibly, if at times critically. Because it has kept within the constraints of the conventions we have already described, the Lords has managed to avoid usurping the role of the Commons or causing undue delay or deadlock. We have already concluded, from the actual experience of the relationship between the Houses, that similar arrangements will need to be in place in any new constitutional settlement if the system is to work as well as it has done in the past. The current provision for carry-over of bills from one session to the next has clear implications for the handling of the legislative programme. We do not imagine that a government would wish controversial legislation to be treated in this way.[34] Subject to satisfactory assurances that carry-over arrangements could not be used to erode the powers of the House of Lords,[35] we do not consider at this stage that the provisions of the Parliament Acts need to be altered.[36] Together with our conclusions about maintaining the existing conventions, we therefore recommend (subject to what we say about secondary legislation in paragraph 23 above) that no new or additional powers are given to the House of Lords at this stage.