Joint Committee on Conventions

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Contents 1 What the Committee Does 2 Report Published 2.1 Primacy of the House of Commons 2.2 The Salisbury - Addison convention 2.3 Reasonable time 2.4 Exchange of amendments between the Houses - 'ping-pong' 2.5 Secondary legislation 2.6 Financial privilege 2.7 Codification 3 Evidence Taken 4 Questions being considered by the Committee 4.1 Salisbury-Addison Convention 4.1.1 Brief Summary of Party Positions 4.2 Secondary Legislation 4.2.1 Brief Summary of Party Positions 4.3 Reasonable Time 4.3.1 Brief Summary of Party Positions 4.4 Exchange Of Amendments ("Ping-Pong") 4.4.1 Brief Summary of Party Positions 4.5 Other Key Conventions 4.5.1 Brief Summary of Party Positions

What the Committee Does

The Joint Committee was appointed with the following terms of reference:

That, accepting the primacy of the House of Commons, it is expedient that a Joint Committee of the Lords and Commons be appointed to consider the practicality of codifying the key conventions on the relationship between the two Houses of Parliament which affect the consideration of legislation, in particular:

(A) the Salisbury-Addison convention that the Lords does not vote against measures included in the governing party's Manifesto;

(B) conventions on secondary legislation;

(C) the convention that Government business in the Lords should be considered in reasonable time;

(D) conventions governing the exchange of amendments to legislation between the two Houses.

A full list of members of the Committee can be found here

The Committee was due to report by 21st July but members feelt that this did not give them enough time to address the remit. The Lords and Commons agreed on 20 June and 4 July respectively to extend the Committee's life to the end of the 2005/6 session of Parliament.

Report Published

Our View The long awaited report on the conventions of the House of Lords is a welcome mapping exercise but has perhaps not moved the debate on in the way that was initially intended. The Government had taken the view that it was necessary to establish, and preferably codify, the conventions governing the working practices of the House of Lords, and in particular its relationship with the House of commons, before any change in composition could be made. As this report demonstrates, that is simply not possible. Conventions are inevitably flexible and even nebulous agreements. When the conventions in questions such a Salisbury-Addison was made, essentially by two men in a different historical and political era, codification becomes impossible. There are also those from across the political spectrum that believe that the powers of the second chamber has to be determined before the composition and so voted against reform in 2003. Some have also used it to block debates about the composition of the second chamber. This report maps the conventions of the current House of Lords but emphasises that these may need to be renegotiated if the composition changes. However what the report does clearly demonstrate is that conventions can evolve over time, adapt to different circumstances and still be effective. It may well be that if, and hopefully when, a predominantly elected second chamber comes into being that new working practices will need to be negotiated. But there is no reason to believe from this report that this process will bee in any way catastrophic. The conventions evolved in the nineteenth century as the franchise increased and the House of Commons asserted its primacy, they changed again when a Labour government was elected in 1945 only to be confronted by a Conservative majority in the House of Lords and adapted again when the majority of the hereditary peers were removed in 1999. The report clearly states that the House of Lords accepts the primacy of the House of Commons and has no intention of challenging the embodiments of this such as the financial privilege. Although this only applies to the current House any new second Chamber would have its powers determined in legislation by the House of Commons so it difficult to see that this would change. No-one is suggesting a change in role for the second chamber just a change in composition so that it is accountable to the people. There are also other ways to protect the primacy of the House of Commons such as electing the second chamber in thirds so that its mandate is never more recent than the House of Commons. The real issue with those that insist a democratic second chamber would undermine the primacy of the House of Lords is that they think the Commons should always get its own way. The House of Lords has been more assertive in using its powers since the removal of the hereditary peers and there is a fear that this will only continue once there is an elected element in the second chamber. However this assumes that the two houses disagreeing or 'ping pong' is bad rather than something that actually increases the quality of legislation. Jack Straw recently admitted that one of the reasons he voted against an elected House of Lords was that he was annoyed at some changes they had made to legislation he was leading through Parliament. This may well be frustrating but it is not the way to determine our constitutional settlement. Legislation impacts on us all and surely we should be trying to create a system where we get the most effective laws not just the least amended.

The Joint Committee on the Conventions of the House of Lords published its report on 31st October.

The report outlined the current position in relation to conventions and working practices but emphasised that these are not enforceable. The Committee also expects that the issue of conventions will have to be re-examined if the composition of the House of Lords changes.

Primacy of the House of Commons

Neither the Committee nor any of the witnesses challenged the principle of the supremacy of the House of Commons.

The Committee found that:

"No-one challenges the right of the Lords to consider Bills, including acting as "first House", and to consider Statutory Instruments where the parent Act so provides. It is common ground that the Lords is a revising chamber, where government measures can be scrutinised and amendments proposed." (para 57)

"Nonetheless there remains a distance between the Government and opposition visions of the role of the House of Lords. At the risk of over-simplifying, the opposition parties are broadly happy with the Lords' behaviour since 1999; the evidence we have received suggests that the public at large feel the same. The Government do not." (para 59)

The Salisbury - Addison convention

Commonly known as the Salisbury convention this is the practice whereby the House of Lords does not reject or pass wrecking amendments to Bills that formed part of the Government's manifesto.

It was originally an agreement made by Viscount Addison as Leader of the House of Lords and the Marquess of Salisbury as the leader of the opposition in the Lords in the aftermath of the Labour Party's elections victory in 1945. This was particularly significant as the House of Lords had a large Conservative majority. No one party currently has a majority in the House of Lords.

The Committee found that the convention has changed since 1945, and particularly since the removal of the hereditary peers in 1999. It now applies to a manifesto Bill introduced in the House of Lords as well as one introduced in the House of Commons. It is now recognised by the whole House, unlike the original Salisbury-Addison Convention which existed only between two parties.

Controversy can arise around what constitutes a manifesto Bill. Certainly there were those that considered that the ban on fox hunting was not a manifesto bill as the 2001 Labour Party manifesto only referred to resolving the issue.

The Committee recommended that:

• there should not be any attempt to define a manifesto Bill. Nor do we consider that the difficulties in identifying a manifesto Bill are so substantial that they would prevent Parliament from articulating a convention concerning the House of Lords' practice in relation to manifesto Bills.

• That the Lords be given the opportunity to debate and agree a resolution setting out the terms of the convention, and that the resolution be then communicated by message to the Commons. The Commons could then hold a debate on a motion to take note of the message.

• That in future the Convention be described as the Government Bill Convention.

Reasonable time

It is agreed practice, as outlined in the Wakeham report, "that Government business in the Lords should be considered in reasonable time" However there is no agreement as to what constitutes reasonable time.

In nearly all conflicts between the two Houses, time is an essential element. The Government usually want to get their business through by particular dates. Some are self-imposed, like the end of the parliamentary Session, or the deadline for fulfilling a Public Service Agreement; some are imposed by outside events, e.g. a court judgement or EU implementation timetable.

The opposition in the Lords can sometimes use these deadlines to their advantage, by putting pressure on the Government as the deadline approaches.

For example on 8 March 2004 the Lords voted to refer the Constitutional Reform Bill to a Select Committee and to carry it over. The Select Committee sat for 3 months, and the Constitutional Reform Bill reached the Commons just before Christmas, 5-6 months after the Government might have hoped. However it is also possible to argue sitting sitting that a Bill of such constitutional significance merits detailed scrutiny and that the Bill was improved as a result.

In 2004 a group of Labour peers, chaired by Lord Hunt, had recommended that there should be a 60 sitting day time limit for the House of Lords to consider government Bills. This became a commitment in the 2005 Labour Party manifesto to "legislate to place reasonable limits on the time bills spend in the second chamber - no longer than 60 sitting days for most bills."

The average time taken for a Bill to get through the House of Lords has risen sharply over the last 25 years. The average Bill took 36 sitting days in 1980-81 compared to 63 days in 2004-05. Interestingly, more controversial Bills do not necessarily take longer: for instance, in this Session, the Lords took 100 sitting days to pass the Commissioner for Older People (Wales) Bill, compared with just 56 for the Identity Cards Bill.

The Committee found that

"Everyone agrees that the Lords should consider Government business in reasonable time, and in our view there is indeed such a convention. And no-one except the Government sees a problem in this area. Self-regulation makes the reasonable time convention work, with difficulties being resolved through the usual channels."

"There is no conventional definition of "reasonable", and 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. A target number of days could be counter-productive, by legitimising delay up to the target."

Exchange of amendments between the Houses - 'ping-pong'

'Ping-pong' or the exchange of amendments, is based on the premise that both Houses must agree on every word of a Bill before it can receive Royal Assent and become an Act of Parliament.

Once a Bill has passed through both Houses a list of Amendments made in the second House is compiled and the Bill is returned to the first House seeking its agreement to the Amendments.

If the first House does not agree to the Amendments made by the second House it returns the Bill to the second House indicating its disagreement, or setting out alternative propositions. Exchanges between the two Houses continue until agreement is reached or a stalemate occurs.

The Committee found that

"We agree that the exchange of Amendments between the Houses is an integral part of the legislative process that is carried on within the context of the primacy of the House of Commons and the complementary revising role of the House of Lords. It is not a convention, but a framework for political negotiation."

"We also acknowledge the value of the convention, with which all parties agreed, that neither House will in general be asked to consider Amendments without notice. We believe that it would facilitate the exchange of Amendments between the two Houses if that convention was more rigorously observed, i.e. if reasonable notice was given of consideration of Amendments from the other House. We recognise that this convention may have to be breached at the end of a Session when pressure of time makes rapid exchanges of messages between the Houses inevitable; but this should be the exception, not the rule."

Secondary legislation

Secondary, or delegated, legislation (often referred to as Statutory Instruments) is not covered by the Parliament Acts, and so it is possible for the House of Lords to reject it, and prevent it from being enacted, even if it was approved by the House of Commons.

The Government felt that there was a Convention that the House of Lords did not defeat the Government on Statutory Instruments. Certainly it is rare for the House of Lords to do so.

The last two instances of the rejection of an affirmative instrument were 18 June 1968: Southern Rhodesia (United Nations Sanctions) Order 1968; and 22 February 2000: Greater London Authority (Election Expenses) Order 2000.

The issue is whether the House of Lords has the right to reject SI's but rarely does so or whether thee rejection of an SI is a breach of a convention.

The Committee found that

"that the House of Lords should not regularly reject Statutory Instruments, but that in exceptional circumstances it may be appropriate for it to do so. This is consistent with past practice, and represents a convention recognised by the opposition parties."

"For the Lords to defeat SIs frequently would be a breach of convention, and would create a serious problem. But this is not just a matter of frequency. There are situations in which it is consistent both with the Lords' role in Parliament as a revising chamber, and with Parliament's role in relation to delegated legislation, for the Lords to threaten to defeat an SI. For example:

• where special attention is drawn to the instrument by the Joint Committee on Statutory Instruments or the Lords Select Committee on the Merits of SIs

• when the parent Act was a "skeleton Bill", and the provisions of the SI are of the sort more normally found in primary legislation

• orders made under the Regulatory Reform Act 2001, remedial orders made under the Human Rights Act 1998, and any other orders which are explicitly of the nature of primary legislation, and are subject to special "super-affirmative" procedures for that reason

• the special case of Northern Ireland Orders in Council which are of the nature of primary legislation, made by the Secretary of State in the absence of a functioning Assembly

• orders to devolve primary legislative competence, such as those to be made under section 95 of the Government of Wales Act 2006 and

• where Parliament was only persuaded to delegate the power in the first place on the express basis that SIs made under it could be rejected.

Financial privilege

The Committee accepted the financial privilege of the House of Commons (ie the right to approve proposals for taxation or for government expenditure) but the Government believed that there would be benefit in greater clarity about the extent of financial privilege.

In 2002 the Lords agreed that each Finance Bill would be scrutinised by a sub-committee of its Economic Affairs Committee.The Government felt that this was a breach of the convention of financial privilege.

The Committee found that:

"The Lords Committee should continue to respect the boundary between tax administration and tax policy, to refrain from investigating the incidence or rates of tax, and to address only technical issues of tax administration, clarification and simplification. Provided it does so, we believe there is no infringement of Commons financial privilege, and no need to reopen the issue. If the House of Commons believe that their primacy or their privileges are being infringed, it is for them to act to correct the situation."

Codification

The Government had hoped to codify the conventions which govern relations between the House of Commons and the House of Lords.

However the committee found that idea of codification is unhelpful, since to most people it implies rule-making, with definitions and enforcement mechanisms.

"Conventions, by their very nature, are unenforceable. In this sense, therefore, codifying conventions is a contradiction in terms. It would raise issues of definition, reduce flexibility, and inhibit the capacity to evolve. It might create a need for adjudication, and the presence of an adjudicator, whether the courts or some new body, is incompatible with parliamentary sovereignty."

"Even if an adjudicator could be found, the possibility of adjudication would introduce uncertainty and delay into the business of Parliament. In these ways, far from reducing the risk of conflict, codification might actually damage the relationship between the two Houses, making it more confrontational and less capable of moderation through the usual channels. This would benefit neither the Government nor Parliament."

The Committee strongly recommended that

"all recommendations for the formulation or codification of conventions are subject to the current understanding that conventions as such are flexible and unenforceable, particularly in the self-regulating environment of the House of Lords. Nothing in these recommendations would alter the present right of the House of Lords, in exceptional circumstances, to vote against the Second Reading or passing of any Bill, or to vote down any Statutory Instrument where the parent Act so provides."

Evidence Taken

• On Tuesday 13th June the Committee questioned Jack Straw MP, Leader of the House of Commons; Lord Falconer of Thoroton, Secretary of State for Constitutional Affairs and Lord Chancellor; Lord Grocott, Government Chief Whip in the House of Lords.

• On Tuesday 20th June the Committee questioned Lord Strathclyde, Leader of the Opposition; and Lord Cope of Berkeley, Opposition Chief Whip in the House of Lords; and Rt Hon Theresa May MP, Shadow Leader of the House of Commons. Later that day they questioned Lord Williamson of Horton, Convenor of Crossbench Peers in the House of Lords.

• On Tuesday 27th June the Committee questioned David Heath MP, Liberal Democrat Shadow Leader of the House of Commons; and Lord Wallace of Saltaire, Deputy Leader of the Liberal Democrats, House of Lords.

Transcripts of evidence sessions can be found here

Questions being considered by the Committee

Salisbury-Addison Convention

The Salisbury-Addison convention, often referred to as the Salisbury Convention, is described in the report of the Royal Commission on the Reform of the House of Lords (Cm 4534, 2000) as "an understanding that a 'manifesto' Bill, foreshadowed in the governing party's most recent election manifesto and passed by the House of Commons, should not be opposed by the second chamber on Second or Third Reading." (paragraph 4.21) The convention is also suggested to include the principle that the Lords will not pass wrecking amendments to such a Bill.

1. Is this an accurate description of the convention? Is it sufficiently comprehensive?
2. Can "manifesto bills" be properly identified? Is a manifesto an appropriate basis for codification?
3. Have there been any breaches of convention in this area?
4. How can the convention be codified? If it is codified, how can it be enforced?

Brief Summary of Party Positions

Conservatives

Salisbury-Addison still works perfectly. The conventions flexibility is its key element, and a statute would destroy this. Furthermore, codification would only benefit the executive. Generally, the Conservatives stress that any codification could kill the spirit of the conventions.

Labour

Jack Straw argued that, despite the huge increase in the size and detail of manifestoes over the years (Labour's 1945 manifesto was just 8 pages long), 'they cannot cover every eventuality'. But the Government did not want to resort to the 'blunderbuss' of the Parliament Act, and thus hoped to find some way of solidifying the convention. The convention had previously filled the gaps of the Parliament Act, but lacked substance. Lord Grocutt expressed his concern that, because of the essential relation of the convention to a democratic mandate (or as Lord Falconer put it, its 'wider philosophical underpinning'), Salisbury-Addison could be denied with variable vigour given the size of a majority and the time which had expired since the last election. He further emphasised that government change leads to relationship change between the two Houses. However, the Labour representatives accepted the problem codifying with Salisbury-Addison: retaining essential flexibility. They argued that it would be very difficult to put into statute and it would be more advisable to make it a descriptive text which could be accepted by both parties.

Liberal Democrats

Salisbury-Addison does not exist, nor could it bind the Lib Dems. It does not exist because the circumstances have changed since 1945 when it was agreed there is no longer a Conservative-dominated second chamber. According to David Heath it is not even a convention between the two Houses. It is a convention between the executive and the House of Lords, and therefore outside the remit of the Committee. It does not bind the Lib Dems because they were not party to its formulation. More problems would occur with a codification because it would require an independent body to adjudicate upon the matter.

Secondary Legislation

House of Lords conventions in relation to the Commons on secondary legislation are currently codified thus in the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords (2005):

"The House of Lords has only occasionally rejected delegated legislation. The House has resolved 'That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration'." (paragraph 8.02)

1. Is this an accurate codification? Is it adequate?
2. Have there been breaches of convention in this area?
3. Is there a convention that the House of Lords does not reject delegated legislation, with perhaps definable exceptions? Does it depend on prior warning, perhaps when the enabling legislation was considered? Does it depend on whether the Commons have already approved the instrument in question? Does it depend on the views of the scrutiny committees?
4. If there is such a convention, how could it be codified? In its codified form, how could it be enforced?
5. Would codification have indirect consequences in practice? For instance, might it make the House of Lords less willing to create new delegated powers?
6. Do different considerations apply to certain categories of order, eg those subject to "super-affirmative" procedure?

The issue of rendering delegated legislation amendable by Parliament is outside the remit of this committee.

Brief Summary of Party Positions

Conservatives

The Conservatives believe that not opposing secondary legislation would allow the Government to get away with skeletal bills, whereby very little detail would be placed in the primary legislation and only fleshed out after it was passed.

Labour

It was argued that there have been occasions where attempts were made to introduce fatal/destructive amendments to statutory instruments. The House of Lords cannot veto primary legislation but it can veto secondary legislation. Jack Straw argued that there is a clear case for Lords to be allowed power for delay, but not veto.

Liberal Democrats

Voting against secondary legislation must be allowed to stop the Government abusing the introduction of skeletal bills.

Reasonable Time

The convention that Government business in the Lords should be considered in reasonable time is not currently codified, save that it appears in the report of the Royal Commission and the first report of the Joint Committee on House of Lords Reform (HL Paper 17, HC 171, Session 2002-03).

1. Is there such a convention?
2. Has it been breached?
3. Could it be codified? In its codified form, how could it be enforced?

The Labour manifesto for the last General Election contained a commitment to "legislate to place reasonable limits on the time bills spend in the second chamber - no longer than 60 sitting days for most bills".

1. Would codification of the convention in the form of a statutory time limit be practical? How could it be enforced? What would be its practical consequences, including indirect consequences?
2. Would 60 sitting days be a practical limit? If not, what time would?
3. Would there need to be provision for exceptions, or for extending the time limit? How could this work?

Brief Summary of Party Positions

Conservatives

60 days is only convenient for Government ministers and nobody else. The system already works, and no filibusters have been used in the memory of those giving evidence. Ironically, things can take longer if they are of less importance as they get pushed back in the calender. More importantly, those bills which are extremely complex, or ones in which during the process of debate the Government has identified sizable flaws, require a flexible time frame to provide better legislation. In short, time limits limit scrutiny.

Labour

Jack Straw made it clear that there were no immediate plans to legislate for a specific time limit (the 60 day commitment), and the Government would wait until the Committee has reported before it made any plans.

Liberal Democrats

60 days is vague and undefined but clearly restrictive to effective scrutiny

Exchange Of Amendments ("Ping-Pong")

Ping-pong is a shorthand way of describing the procedures used by both Houses for dealing with amendments proposed to legislation by the other House.

1. What would be the consequences of codifying ping-pong?
2. What would codification cover?
3. Is codification necessary?
4. What effect has packaging of Lords amendments had on the operation of ping-pong?
5. How far can the Lords push ping-pong before the practice is considered to have been pushed too far?

Alternative procedures, eg reconciliation committees, are outside the scope of this inquiry.

Brief Summary of Party Positions

Conservatives

60 days is only convenient for Government ministers and nobody else. The system already works, and no filibusters have been used in the memory of those giving evidence. Ironically, things can take longer if they are of less importance as they get pushed back in the calender. More importantly, those bills which are extremely complex, or ones in which during the process of debate the Government has identified sizable flaws, require a flexible time frame to provide better legislation. In short, time limits limit scrutiny.

Labour

This is an issue which Labour believe needs to be addressed. It was argued that Labour governments inevitably face more 'ping-pong' because of the make-up of the Lords, which is, traditionally, more Conservative.

Liberal Democrats

60 days is vague and undefined but clearly restrictive to effective scrutiny

Other Key Conventions

1. Are there other conventions which this Committee ought to consider?

Brief Summary of Party Positions

Conservatives

Labour actually established the Finance Bill Sub-committee and their opposition to it is because they do not agree with its recommendations.

Labour

The House of Lords has encroached upon the primacy of the Commons with Economic Affairs Committee's Finance Bill Sub-committtee. This should be remedied.

Liberal Democrats

A Joint Business Committee would allow for a more efficient planning of time, and reduce the madness which always is exhibited towards the end of a Parliamentary calendar.