House of Lords Reform Draft Bill
Response by Damien Welfare.
Also submitted on behalf of the
Campaign for a Democratic Upper House (CDUH)
that they are “fully committed” to holding the first elections to the reformed second chamber in 2015, is also welcome.
2. Democratic reform of the second chamber is central to improving the legitimacy and effectiveness of Parliament as a whole; which in turn has a vital contribution to make in improving the quality of government. Giving greater authority and legitimacy to Parliament as a whole could also play an important part in redressing public disengagement from politics.
Summary of main points
4. This response covers most of the proposals, but concentrates on the following main points:
a) the role and functions of the new second chamber make clear that, while important, its status would remain secondary to that of the House of Commons;
b) the issues of democratic principle involved are fundamental, but also relate to how effectively the new chamber would carry out its role and functions;
c) in order to ensure the primacy of the Commons, the use of a longstanding form of Resolution agreed between the two Houses, based largely on the existing rules and conventions, and possibly augmented by statute, can produce a permanent settlement between the two Houses; whilst allowing for agreed changes via a process of review. These proposals are set out in paragraphs 55-64;
d) ultimately, we have a choice as to the constitutional arrangements we make for the UK.
Role and functions of the second chamber
5. The role of the second chamber should be:
a. forming a revising chamber with the power to ask the Commons/Government to think again;
b. providing a forum in which the nations and regions of the UK are represented;
c. scrutinising Government, both as to detail and in relation to larger-scale issues;
d. inquiring into wider issues of national concern, which transcend party debate or raise issues outside politics;
e. acting as a constitutional “longstop” for the country.
6. Only the role of providing a forum in which the nations and regions are represented falls outside the role of the present House.
7. Expressing the role of the House, as an agreed part of a reform settlement, would form an important starting point for maintaining the primacy of the Commons.
8. The functions would follow from the role, and similarly form an important foundation for the relationship of the two Houses, as follows:
a. Acting as a revising chamber for legislation: this is the normal principal function of a second chamber in a bicameral system. It provides a process for the detailed scrutiny of amendments, and testing of the policy behind a Bill; and extends to asking the Government to think again by means of an amendment passed against it. This is conducted in a chamber where the position of the Government of the day is not in issue, and accordingly the political atmosphere is less intense. In addition, the present House considers and approves thousands of amendments made by Government to its own Bills each year; enabling officials to rethink the provision, and saving the time of the Commons in doing so;
b. Scrutinising or approving secondary legislation: the function of the House is to scrutinise secondary legislation, where Parliamentary approval or acquiescence is required, on the same basis as the Commons (ie acceptance or rejection, with no power to amend). The lack of a power to amend an SI is a significant constraint on the scrutiny conducted by either House. Suggestions are made below to amend the powers of the second chamber in this area;
c. Scrutinising the actions, policies or decisions of Government (or “holding the Government to account”): by oral and written Questions, or debates to which Lords Ministers or Whips respond; or statements delivered by those peers;
d. Undertaking inquiries and investigations: it is intrinsic to the nature of a second chamber on which the Government is not reliant, that inquiry and debate may more easily be concerned with larger questions which transcend government or party debate. Conversely they may also be concerned with detailed or non-political issues which would not warrant attention in the primary political forum of the country. The present House undertakes much of the Parliamentary scrutiny of the European Community, as well as much of the scrutiny of delegated legislation; notably in responding to points raised by the Merits Committee. More widely, its scientific and ad hoc select committee inquiries range across and beyond Departmental boundaries; in deliberate contrast to the Departmental focus of the Commons;
e. Acting as a constitutional longstop: notwithstanding the introduction of fixed five-year Parliaments, the House of Lords retains under the Parliament Acts its power of absolute veto on a Bill seeking to extend the life of a Parliament beyond five years.  More generally, the House is widely recognised as having a legitimate interest in, and role in safeguarding, the constitutional arrangements of the country.
9. In terms of the primacy of the Commons, it is significant that the above list of functions does not include any of the following:
a. determining (or having any role in determining) the Government of the day;
b. providing the leadership of the Government of the day, or of the Opposition parties;
c. controlling (or having any role in allocating) public income or expenditure;
d. determining the final content of the Government’s primary legislation, where it has been supported by the House of Commons;
e. ultimately approving the secondary legislation proposed by the Government; or
f. scrutinising public appointments.
10. The above list, of functions of the Commons in which the Lords have no effective role, underlines the secondary nature of the functions of the second chamber.
The democratic principle in the second chamber
11. There are four principal arguments of democratic principle for a second chamber which is largely or wholly elected.
(1) Legislators, and those scrutinising Government, should be elected
12. It is a fundamental principle in a democracy that those who participate in making the laws should be chosen by those who are governed; and that they should also be accountable to them. The same applies to those invested with the right to scrutinise Government, or to examine national issues, on our behalf. Ultimately, those who have a role as constitutional guardians should also be accountable to the electorate. As a nation, we have exported the democratic principle around the world, but until now tolerated its absence from part of the centre of our own political system. The onus is on those who argue that democracy cannot be introduced into the composition of the Lords to make their case, which they have not so far done.
13. The problem often claimed to arise with a democratic House - that it could challenge the Commons, or disrupt the balance between the two chambers - need not be the case. In all likelihood, the present rules and conventions, carried into the new system and adapted as necessary, would be sufficient to prevent a clash. A new settlement between Lords and Commons, however, agreed as part of the reform “package” can put the matter beyond doubt. This would strengthen both Houses of Parliament, by improving the quality, profile and confidence of their revision and scrutiny. It could also benefit the conduct of Government business, by enhancing the legitimacy of its measures once they have been approved.
14. With increasing recognition of the need to secure diversity in representation in the House of Commons, there would properly be an expectation that the make-up of an elected second chamber would come over time to be properly representative of the UK population as a whole.
(2) The second chamber should have the legitimacy to perform its functions effectively
15. The legitimacy arising from election is central to the proper fulfilment of democratic decision-making and scrutiny. At present we have a system in which the views and decisions of one House of Parliament lack the legitimacy to give them weight within Government. In the 1980s and 1990s, the House often supported amendments to controversial bills on local government. Its lack of democratic or political legitimacy, however, meant that it could usually be ignored, unless some other political factor (such as Parliamentary time, or adverse publicity for the Government) gave its views weight within the Executive. The inherent merits of the argument, or the expertise of its members deployed in its favour, were not enough to make a significant difference.
16. The House has become more assertive since the departure of the majority of hereditary peers in 1999 (continuing a trend since the 1970s), but there is little to suggest that the position is greatly different. The largely-appointed chamber claims to be a House of expertise, yet this has little place in the argument when it seeks to persuade the Government of the day to accept its amendments.
17. The lack of legitimacy of the Lords weakens the House of Commons too, by denying to Parliament as a whole the standing of a democratic scrutiny body. Conversely, if Government were scrutinised by two democratic bodies, and its legislation revised and passed by two such bodies rather than one, its measures would gain in democratic legitimacy. The quality of legislation would also improve, from having been tested in a more accountable House to whose work greater public attention was paid.
(3) The second chamber should be a forum for representation of the nations and regions within the UK Parliament
18. On either an STV or an open regional list system, the elected membership of the second chamber would be drawn from either large constituencies with a clear identity in the region or nation concerned, or (in the case of Scotland, Wales and Northern Ireland) from those nations themselves. A role in representing the nations and regions within a UK framework could be significant, at a time when, for example, the position of Scotland within the UK is in issue; and there is also some pressure for a greater voice for non-metropolitan England at national level. An elected second chamber could provide a forum for those interests, in a different form than through inter-governmental processes. In the case of English regions or conurbations, the second chamber could provide a more consensual basis for representation than the abandoned proposals for regional government; with a focus on the impact of national policies and programmes within regions.
19. In devolved areas, both the role and the basis of representation would differ from that of MPs from those countries, the basis of whose legitimacy, as in the case of English MPs, is the direct representation of their constituents. They also have direct access to senior UK Ministers. This role is clearly different from a more general representative role in relation to a region or nation. The “West Lothian question” is due to be examined by a Commission being established by the Government, and expected to report after a relatively short period. The creation of a democratic second chamber will not in itself alter the issues raised by the present asymmetrical structure of devolution, but it could provide a new forum for the representation of views, and examination of common issues; and provide some “constitutional glue” within a UK framework.
(4) A democratic second chamber would enable Parliament to take a more integrated view of itself
20. Many members of the two Houses at present barely know each other. The respective cultures and procedures of each are little known to the other; and assumed to be very different. The introduction of a democratic House could transform the position, since the underlying basis of difference would largely fall away. This could only be welcome in terms of joint working and common understanding.
21. More important, it would assist Parliament to take a more integrated view of itself. On issues such as the correct pattern of scrutiny, the role of Parliamentary Questions, the right balance between Government and backbench business, or the desirable scope of Parliamentary privilege, a more concerted approach between the two Houses could only enable them to take a more rounded and integrated view of their respective functions. Put simply, the “divide and rule” approach to the two Houses, whereby Government plays off one against the other, would be harder to maintain. Government itself would have to develop a more unified relationship with Parliament, which would have the benefit that its positions were better understood.
Why appointment is unsatisfactory
22. Appointment obviously suffers from the obverse of the above features. An appointed House has no democratic legitimacy or accountability. It lacks the legitimacy to make its views count with Government, and thus to fulfil its key functions; largely because it does not represent anyone or anything. It is obviously not in a position to provide a representative forum for the nations and regions. It has little prospect, furthermore, of developing integrated relations with the Commons, because of their different natures.
23. It suffers from one further basic disadvantage. Appointment is no substitute for election. The only way in which a person is truly representative of another is if they have been elected by them, for their views as much as for any experience or status they may bring to the role. Although their views may coincide on particular issues, a person who is poor, from an ethnic minority or unemployed will not necessarily share the views of another person in the same position. A person does not represent another simply by sharing social characteristics with them. When a person has been elected, moreover, the ordinary citizen has a claim on their attention, whatever differences they may have of political view or social background. The person who has been elected has placed themselves before the electorate and received their endorsement in preference to other candidates. It is the legitimacy and accountability which the process of election confers, not their social characteristics or identity, which make the elected person properly representative of the community he or she serves.
What does the primacy of the Commons rest on?
Present basis of primacy
24. Restrictions on the powers of the Lords rest on a mixture of statute, convention, and the Standing Orders of the two Houses.
25. It is often assumed that the Commons’ superiority rests on the fact that they are popularly elected. In terms of day to day politics, this now represents the obvious difference between the two Houses; but the developing strength of the Commons long preceded the mass franchise, and the claim of the Commons to the primary role over the granting of money dated from the late 17th century.
26. The present relationship between the two Houses is based on a combination of:
(i) Important functions which only the House of Commons exercises;
(ii) Restrictions on the financial powers of the Lords;
(iii) Restrictions on the powers of the Lords over revising primary legislation; and
(iv) The powers of the Lords over approval of statutory instruments.
(i) Functions which only the Commons exercise
Formation and maintenance of a Government
27. The Government of the day is formed by the Leader of the party (or Leaders of the parties) who can, at the request of the Monarch, command the confidence of a majority of the House of Commons. The House of Lords has no role in selecting or maintaining the political party or parties in power; nor in removing them. No division, resolution, or debate within the House of Lords affects the Government’s right to remain in power so long as it retains a majority in the Commons. This remains a convention, rather than a matter of statute. As suggested below, this convention could be agreed between the two Houses as part of the reform package.
Government sits mainly in the Commons
28. The Government sits largely in the House of Commons, apart from a small number of Ministers and Whips in the Lords. While Lords Ministers perform important roles in initiating and explaining Government business there, and responding to scrutiny, their legitimacy in Government (as opposed to their personal reputations in the House) do not depend on decisions of that House.
29. The Prime Minister of the day, and most senior Ministers, sit in the House of Commons. The last Prime Minister, the Marquess of Salisbury, to sit in the Lords left office in 1902. Apart from the possibility that Viscount Halifax would be appointed in 1940, the only recent example was the appointment of the Earl of Home, who relinquished his title and secured a seat in the Commons in 1963 in order to become Prime Minister. It appears inconceivable that a member of the second chamber could now serve as Prime Minister; and this could be made explicit.
30. In terms of senior Ministers, with the removal of the Lord Chancellor from the Lords, only the Leader of the House is required to be a member of the Lords. The present Cabinet includes only the Leader of the House, and the Minister without Portfolio (a Minister of State), as members of the Lords, out of 23 Cabinet Ministers. In the present Government, there are 3 members of the House who are Ministers of State (out of 32, including Law Officers); 9 junior Ministers (out of 37); and 10 Whips (out of 27, apart from the Chief Whip). In all, there are 24 peers in Government posts, out of a total of 119; or 20% of the total number of Ministers and Whips in the Government. No more than 95 holders of Ministerial offices may sit and vote in the House of Commons. There is also a statutory limit on the number of paid Ministers who can be appointed. It could be agreed that no more than (say) 20% of Government Ministers or Whips could sit in the second chamber.
31. One possibility for expressing these restrictions could be to widen the Long Title of the draft Bill, in order to include new provisions:
a. a requirement that a Prime Minister must on appointment (or possibly from shortly afterwards) be a member of the House of Commons;
b. provision that no more than 20% of Ministers (or paid Ministers) may be members of the second chamber;
c. a limitation on the numbers of members of the Cabinet, or Ministers of State, who could be members of the second chamber (effectively concentrating appointments in the second chamber on the lower rungs of Government).
32. Such provisions could be simply expressed, with minimal scope for judicial interpretation. Alternatively, all of the above could be set out in agreed Resolutions between the two Houses (see below).
(ii) Restrictions on financial powers
33. The Commons’ control over finance was historically the most important. The point is often now obscured by the assumption that the main business of Government is its legislative programme. In fact, few of the day to day activities of Government rely on the programme. The main feature of the relationship between the two Houses, the settlement as to financial matters, is now taken for granted. The need in terms of reform is to confirm the same settlement, and make it explicit where necessary.
Money Bills under the Parliament Acts
34. Under section 1 of the 1911 Act, a Money Bill may be passed by the Commons without the assent of the Lords, if certain procedural conditions are met. A Money Bill is a bill which is certified by the Commons Speaker to contain only provisions dealing with taxation, debt payments, supply, the allocation of public income to spending, loans, or subordinate matters (section 1(2), 1911 Act). The Lord may discuss such Bills, or even in theory amend them, but no account needs to be taken by the Government of its amendments. These provisions are now wholly uncontroversial.
Bills of Aids and Supplies
35. The Lords’ role in relation to financial matters has long been restricted to giving assent only. Peers can still in theory reject a Bill of Aids and Supplies (ie the modern Finance Bill or Budget; or the Consolidated Funds Bills, giving approval to public expenditure). They are debarred from amending them, by the longstanding claim of the Commons to financial privilege. In practice, the Lords invariably negative the Committee Stage of a Finance Bill or a Consolidated Fund Bill, so that the issue of amendments to those Bills does not arise.
Amendments infringing financial privilege
36. Where amendments have been passed by the Lords which the Commons consider infringe their financial privilege, by convention the Lords does not send back amendments in lieu which clearly invite the same response. The Joint Committee on Conventions in 2006 (the “2006 report”) recorded that some instances have taken place against the Clerks’ advice. The Report confirmed the convention, and that this should not occur. This could be reaffirmed in agreed Resolutions of the two Houses.
Agreed resolutions on financial matters
37. A starting point for a reformed House should be a clear understanding from the outset that it has no role in financial matters, other than possibly in offering advice or scrutiny (eg as to technical aspects of the Budget, by the Economic Affairs Finance Bill sub-committee). To supplement the 1911 Act, the convention as to Finance Bills and Consolidated Funds Bills should be covered by agreed Resolutions, so that they cannot be rejected, and the resolutions should also cover amendments in lieu which infringe financial privilege.
(iii) Restrictions on powers concerning primary legislation
Public Bills under the Parliament Acts 1911 and 1949
38. As the document accompanying the draft Bill states, the Parliament Acts provide the “basic underpinning” of the relationship. Section 2 of the 1911 Act provides for the Commons to pass a Public Bill with which the Lords disagree, other than a Money Bill or a bill to extend the life of a Parliament beyond five years, where the Commons have passed it again after a minimum of a year from its original Second Reading (and provided the second occasion is in a new session). The Speaker of the Commons is required to endorse the Bill with a signed certificate that the provisions of section 2 have been complied with. The Acts have not needed to be used frequently, and they express a consensus that the second chamber should have a delaying power only in an extreme case of disagreement, which is clearly appropriate in a new settlement.
39. A simpler 12-month delaying period would be better understood by the electorate. The effect of the Coalition Government prolonging the present session until Spring 2012 would have had the effect, should the Parliament Acts have needed to be used, of extending the period of delay until up to nearly two years. Setting the period of delay at approximately twelve months, where the session lasts more than one year, may be worth considering if the innovation of a two-year first session is to be repeated in future Parliaments.
40. The Joint Committee on Conventions defined the Salisbury-Addison convention in its modern form, as follows:
a) a manifesto bill is accorded a Second Reading in the Lords;
b) a manifesto bill is not subject to “wrecking amendments” which change the Government’s manifesto intention as proposed in the bill; and
c) a manifesto bill is passed [ie given a Third Reading] and sent (or returned) to the Commons, so that they have the opportunity, in reasonable time, to consider the bill or any amendments proposed by the Lords.
41. The committee also identified a recent “practice” that the Lords will usually give a Second Reading to any Government bill, whilst pointing to possible exceptions.
42. The Proposals document accompanying the Bill does not refer to the convention. Instead, it states that there is a convention that the Lords “should pass the legislative programme of the Government which commands the confidence of the House of Commons”; and, also 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” (Proposals, paragraph 8). As a description, this goes too far in extending what is described as a convention (as opposed to a “practice”) to all bills in a Government’s programme; and without discussing exceptions. It also appears to be too limited, however, in not including the exclusion of “wrecking amendments” within the convention.
43. The historical circumstances which gave rise to the original compact have changed. There are also obvious problems with the scope of the “mandate” theory, as the 2006 Report discussed. As a working convention, however, it expresses in its modern form the principle that the main features of measures to which a Government has committed itself before the electorate, should be passed by the second chamber; without preventing the second chamber from suggesting amendments which do not change the policy intention, and provided these are proposed in adequate time for the Commons to consider them.
44. In short, the modern convention recognises the legitimacy attaching to the programme of a Government supported by the Commons, provided the broad outline of an individual measure has been put before the electorate. This is an acceptable restriction on the powers of the second chamber, and should remain a significant component of the relationship between the two Houses. It is not acceptable, however, to suggest that either the present or a reformed House should pass all bills introduced by a Government, irrespective of their lack of a mandate. In the case of a bill introduced without warning, or without any form of mandate, it would be important that the second chamber had a full opportunity to consider it, while having regard to the general direction of the convention. There can be no objection to expecting the House to “think very carefully” before rejecting any government measure passed by the Commons, but it would not be right to prevent it from doing so. It is suggested that a formulation along these lines could adequately be agreed, and be supported by resolutions between the two Houses.
45. The 2006 Report recorded general agreement that the Lords should consider Government business in reasonable time, and that there was such a convention. There was no definition of “reasonable time”, and no problem would be solved by seeking to define it; nor by imposing time limits on the Lords’ consideration of bills. At the same time, the report pointed to an “inexorable rise” in the time spent on bills since the early 1980s.
46. It seems clear that, if a reformed House were to make the passage of Government business impracticable through excessive consideration, it would be necessary to introduce an element of timetabling, in the same way as in the Commons. This possibility could be recognised in the reform “package”, and provision made for the Government of the day to introduce such measures if defined criteria were met (eg a measurable increase in time taken for consideration in second chamber, without any exceptional circumstances). This step should perhaps follow, but not depend upon the outcome of, a report by a Joint Committee. The Lords have themselves considered timetabling; but whether or not self-regulation in its present form can be maintained, the prospect of timetabling at the behest of Government could be expected to encourage restraint. The convention, and this reserve arrangement, could likewise be set out in an agreement on the overall reform.
Exchange of Amendments
47. This area has seen remarkably few proposals for change, whether in the 2006 report, the 2008 White Paper or the current Proposals. This might be taken to suggest that the present arrangements are working effectively. There appears likely to be an undercurrent of concern, however, over whether a reformed House could seek repeatedly to insist on its amendments, and oblige the Government to concede important elements of its programme at the end of a session.
48. It is necessary for all two-chamber legislatures to develop mechanisms to resolve conflict over legislation. There is no fundamental reason why the UK Parliament should be unable to do the same. The present rules ultimately rest, in the case of Commons bills, on the Parliament Acts. If both Houses maintain identical positions twice each, a bill is treated as lost. To avoid this risk, each House has to amend its position at the second round of voting on a particular proposal. If this is done, it is possible for a number of rounds to take place.
49. A statement within a reform package, agreed by both Houses, could make clear the convention that the bill must pass within a reasonable time, and set down a desirable timetable or framework of steps. Such a statement could also emphasise the desirability of seeking agreement, and of avoiding the practice of “packaging” of amendments from the Commons.
50. Alternatively, the Houses could agree to revive the former practice of calling a conciliation conference or joint committee to seek agreement. In the early nineteenth century, where the House disagreed over amendments, a conference would take place; and if no agreement was forthcoming, the Bill would be lost, without a further opportunity for amendment on either side. Such a process seems a more mature framework for discussion of differences in a legislature, than the present round of hurried late-night divisions; and with a greater bias to compromise. A conciliation committee could perhaps be called after three rounds of voting on an issue. It could have equal numbers of representatives from each House, but be chaired by an MP. Departmental civil servants (or the Minister) or outside groups could possibly be invited to give brief evidence and answer questions. This might be extended to the frontbench Opposition spokesman, or to other leading Parliamentarians involved.
51. More radically, a limit could be imposed on the number of occasions on which the second chamber could disagree with the Commons on a particular subject, after which the bill would be deemed to have passed (eg three or four rounds of voting). It would be necessary to allow sufficiently long intervals between stages to enable the issues to be adequately examined, and understood by the public. The Parliament Acts could be amended to produce a similar outcome. This proposal may be thought to tip the balance too much in favour of the Government of the day. A preferable alternative would be to combine the two approaches ( ie strengthen the convention, and create a conciliation committee; but with provision for the introduction of reserve powers to limit the number of exchanges). This could be done either in the reform legislation, or via an agreed statement of conventions. In neither case, however, should it be introduced unless recommended by a Parliamentary committee appointed to review the operation of the relationship between the two chambers, as proposed below (see paragraphs 59-60).
Conclusion on primary legislation
52. With a combination of legislation and agreed conventions covering the following areas:
Commons’ power to override the Lords over public bills
Salisbury-Addison convention in modern form
Reasonable time convention
Conciliation process, or limit on stages of disagreement
the balance between the two Houses in terms of primary legislation should be capable of definition as part of the reform settlement.
(iv) Powers concerning secondary legislation
53. The history of the House’s occasional rejection of statutory instruments is well-documented. The 2006 Report concluded that the present convention was not that no statutory instrument should be rejected by the House; but that the House should not regularly reject them. In exceptional circumstances (of which it gave examples), it may be appropriate for it to do so.
54. The committee considered that the Lords’ powers in relation to statutory instruments were “too drastic”, and that this would not be the case if Parliament had a power to amend them. A power to amend would be highly desirable, and would improve the precision of scrutiny of statutory instruments. In its absence, however, a short delaying power (eg one month), after which the Government could re-present the same instrument if it considered this appropriate, would give the second chamber the power to cause Government to think again about statutory instruments, as well as primary legislation. If such a power were created, however, it should accompanied by a new agreed convention that, if re-presented in the same form, the instrument would be passed on the second occasion.
New mechanisms for ensuring Commons primacy
55. The document accompanying the draft Bill does not (paragraphs 7-11), set out the full extent of the present restrictions on the House of Lords. It may be inevitable that a democratic second chamber would wish to use its powers more fully than the present House has done. It is also the case, however, that including in the reform “package”: (a) a clear statement of the roles and functions of the two Houses, and of the balance desired; (b) possibly some further legislation; but, above all, (c) a clear expression by both Houses in agreed Resolutions as to the conventions governing how that balance is to be maintained in practice, would provide a firm and permanent platform on which to operate the new relationship.
56. In 1704 both Houses passed agreed resolutions limiting the scope of Parliamentary privilege, in recognition that privilege, while necessary to the functioning of Parliament, should not be misused. The resolutions agreed that: “neither House of Parliament hath any power, by any vote or declaration, to create to themselves any new privilege that is not warranted by the known laws or customs of Parliament”. This agreed position has been observed for the last three centuries; and neither House could now abrogate it without the agreement of the other.
57. It is suggested that a similar model, of agreed identical resolutions passed by each House, should be employed in relation to the reformed second chamber. The resolutions themselves would be short, referring to an agreed statement as to the respective status, roles, functions, financial powers, and powers over primary and secondary legislation of the two Houses; and to any other relevant aspects of the relationship. The resolutions should also state that no amendment to the resolution of the second chamber could be made without the agreement of the Commons. The resolutions and statement would be promulgated in advance of the implementation of reform as a new settlement between the two Houses. They would be passed by the Commons and the present House of Lords, as part of the process of enacting reform; and its implementation should be made conditional on their passage.
58. The agreed statement would be drawn up by a further joint committee, and cover the matters identified above as to roles, functions and powers, including references to those in statute. (If this proposal were to find favour with this committee, it might wish to produce a draft). In the main, the statement would make express the present conventions, as identified in the 2006 Report, although with the changes outlined above (ie removing the theoretical power to reject a Bill of Aids and Supplies; and, creating a short delaying power for statutory instruments). In relation to the exchange of amendments to bills, the statement could adopt the proposal above for a conciliation committee to meet after three rounds of amendment; with a reserve power to introduce an absolute limit on the number of exchanges before proceeding to Royal Assent, if recommended by a joint committee to review the relationship.
59. The latter committee would play a further important (and continuing) role in the relationship. It should oversee a system of independent monitoring and reporting to both Houses of facts and statistics on the operation of the second chamber (eg as to the number of amendments passed; or any statutory instruments rejected). The material recorded under this process would form the background to the operation of the agreed statement; this background being updated on a continuing basis. At the same time, the committee would have the task both of recording new conventions as they appeared to evolve; and of recommending to both Houses, after hearing evidence, that they agree to the adoption of further new conventions to assist the relationship. Once a new convention had been adopted by common resolutions, a description of it would be added to the statement forming the agreed conventions recognised by the two Houses.
60. The committee should also have the role of recommending whether to introduce reserve powers to limit the number of exchanges of amendments, as outlined in paragraph 51 above.
61. There may be advantage in placing more of the basis for the relationship into statute. Rules such as those suggested for the number of Ministers in the second chamber might most conveniently appear as amendments to the relevant legislation. Amendments could also be incorporated to Clause 2 of the Bill.
62. There could be some symbolic value in amending the Preamble to the 1911 Act, to make an express (but unenforceable) statement of the primacy of the Commons. This would relate to the intention expressed in the Preamble in 1911 to legislate in the future “for limiting and defining the powers of the new [ie popularly elected] Second Chamber”.
63. One further proposal would be for both Houses to agree to the development of standing joint committees on cross-cutting topics (eg public health challenges such as levels of obesity; long-term demographic trends; geo-political developments of international significance over the next generation) to promote a more integrated approach across Parliament as a whole, and to promote mutual awareness between the two Houses.
64. It is suggested that mechanisms and agreements along the lines proposed above would enable a permanent settlement to be set down, by means of resolutions giving effect to an agreed statement, and supplemented as appropriate by limited legislation. The operation of the relationship would be continuously monitored, and changes by agreement proposed to both Houses. No change to the resolutions would be possible, because of their terms, other than with the agreement of the Commons.
Factors relevant to primacy which are added by the draft bill
Single non-renewable terms of 15 years
65. The draft Bill proposes that elected members of the second chamber should have a single non-renewable term of office of three Parliaments, or normally 15 years, in order to enhance their independence and reinforce their distinctiveness from the Commons. It is recognised that a cycle of three Parliaments would allow the replacement of members by thirds, and that this would prevent the majority of the House (or half, if elected in two tranches) from having a more recent mandate than MPs after a General Election. It would also make it difficult for one party to have an overall majority.
66. It is, however, a fundamental weakening of accountability to have non-renewable terms. A period of 15 years is also extremely long in terms both of a mandate, and of keeping in touch with the electorate. A preferable alternative would be either to elect by halves for 10 years terms; or, if the retention of thirds is considered necessary for the reasons summarised above, to have 10 year terms under that cycle. Under the latter system, a member would be enabled to seek re-election, but not until the end of the Parliament after that in which he or she left the House (ie normally five years). This would also accord with the period after which it is suggested that a former member of the second chamber would be eligible to seek election as an MP. In effect, a politician seeking to return to Westminster would have a choice of pursuing selection for the first or second chambers (but not both).
67. As an illustration, if Member group A were elected in 2015, they would serve until the expected end of the Parliament in 2025. They would then leave the House for the following Parliament, but could seek re-election for another 10 years at the election due in 2030. In terms of the shape of the House, Member group A would serve from 2015 to 2025. Member group B would be elected in 2020, and serve until 2030, and then retire for 5 years. Member group C would be elected in 2025, and would serve until 2035, when members of group B would be eligible to stand again; and so on. At the election due in 2030, the members of group A could in theory all be selected as candidates, and returned for a second term. In practice, some members of group A might form part of a new group D, who would serve from 2030 to 2040.
68. This system of “staggered thirds, plus a gap”, would serve the objectives of a long term (10 years), without making it so long as to render the element of accountability negligible. It would allow re-election; but only after a period away from the House. A need to undertake other activities in that period might be thought to be attractive, in terms of differentiating the memberships of the two Houses; and in encouraging people other than solely career politicians to seek elected membership of the second chamber. The same system of 10-year terms could apply to appointed members.
A 20% appointed element
69. CDUH has no position as between 80% and 100% elected membership, although the majority of its supporters would probably prefer a fully-elected House. My view is that an 80% elected House, with 20% of appointed Independent members, would be the preferable outcome.
70. There are three main advantages from retaining an appointed element. First, it would retain the benefit of expertise on a non-political basis. Second, it would further differentiate the memberships of the two Houses. The presence of appointed members, moreover, would make the House by definition less legitimate in democratic terms than the Commons; which would assist the perception of the correct balance. Third, the arithmetical effect of the presence of unelected Independent members would be to make it more difficult for one party to command a majority in the House; especially if elections were staggered as proposed.
71. The presence of Independents would also prove a more secure basis for the continued inclusion of Church of England Bishops in the House, in reduced numbers. I am personally supportive of this proposal, and would prefer if other faiths or denominations were prepared also to propose small numbers of nominees to sit as part of the Independent element.
Qualification to value of expertise
72. Specialist independent knowledge, essentially from professional or academic persons, or persons with particular experience of a particular field, is valuable; but it is subject to a significant qualification, which also affects claims made for a wholly appointed House. Few people can claim serious expertise in more than one subject area. If there were, for example, six eminent doctors in the new second chamber, their contributions to debates on Health policy would probably be significant. Their enthusiastic participation in debates on Defence policy, however, might be less well-received. On each topic, there would no more than a small number of members amongst the Independents with relevant expertise. At that level, expertise can have a proper place in enhancing debate; but only if it is clearly seen to be an extra element, characteristic of a minority of the membership.
73. The present largely appointed House claims to be a “forum of expertise”. The majority of its members have, however, been appointed for their political allegiance. Whatever skills or experience those members may also have in other fields do not constitute the reason for their appointment.
74. The example of the doctors points, however, to the deep-seated problem that would confront a wholly appointed House which was genuinely composed of experts. The reputation of the House in any given policy area would rest on the judgements of the small number of expert individuals. The House would be a fragmented body, with a patchwork of small groups of members qualified to speak only on their topic, and holding no collective view separate from that of those individuals. In those circumstances, the Government of the day could pursue its political objectives by default.
75. The proposal for a largely elected House, with a minority appointed element, offers the opportunity to maximise the contribution which expertise can make, in a manner which is proportionate to its value. It would also recognise the reality that the business of Government, and political choices, ultimately transcend in most cases the contribution of experts.
Salaries in second chamber
76. It would be logical, as proposed, to pay elected members of the second chamber a lower salary than members of the Commons. The reasons should be stated publicly. While these include the lack of constituency duties, as suggested in the Proposals document, the main reason is the subsidiary status of the second chamber. The same approach should be taken to levels of allowances for staff etc.
Additional factors which could be added in relation to Commons primacy
Job description for members of second chamber; and, statement of its role and status
77. A job description for MPs, although beyond the scope of this committee’s inquiry, would probably be popular with the public. A job description for members of the new second chamber could set out its subsidiary status, in terms of its role in revising legislation, scrutiny etc; and make clear that its members have no role in relation to the choice or maintenance of the Government of the day, finance etc. A simple statement of the role of the second chamber, widely publicised to enable the public to understand the new body at the time of elections to it, would assist in achieving the objective of making its subsidiary status into a recognised political fact from the outset.
Name of second chamber
Other issues raised by the draft Bill
Timing of elections
81. The proposal to hold elections to the second chamber on the same date as a General Election is intended to maximise voter turnout, to minimise disruption to the work of the Commons, and to be efficient. The danger is that, if similar patterns of voting produced different outcomes (as could be expected as between a proportional system and first past the post) there could be criticism of the result produced by whichever system was perceived to be less fair. I have been concerned about this issue in the past, and advocated the use of an alternative cycle. In the context of the package of proposals as a whole, however, and in particular the proposal for staggered elections to the second chamber by thirds every five years, the current proposal, whilst not ideal, is acceptable. If, as suggested above in relation to Commons’ primacy, the relative status of the two Houses can be made fully understood from the outset, their differing roles could in any event be expected over time to produce patterns of differential voting, from which no comparative conclusions could be drawn.
82. The preferable cycle would, nonetheless, remain in my view that of the five-yearly European Parliament elections, normally held in June; particularly if the voting system for the second chamber were to be open regional lists. The next elections to the Parliament are due in 2014, and thereafter in 2019. The European elections would thus, on the assumption of five year UK Parliaments from 2010, fall early in the fifth year of the UK cycle. Members of the second chamber would serve for the majority of the term of a Government, while the election would doubtless be seen as a forerunner of the General Election due less than one year later. It is objected that the turnout for the European elections is low. There is no reason in my view to assume that the turnout in elections for the second chamber would be poor, given their significance at national level; and if the new House were properly explained and publicised. A higher turnout in those elections could assist the level of participation in the European elections.
83. The voting system for the second chamber must differ from that of the House of Commons, to reflect their different roles. The modelling in the 2008 White Paper showed that both First Past the Post or the Alternative Vote would produce a significant possibility that the Government of the day could, if elections were held on the same day as a General Election, secure a majority in the second chamber. It appears to be common ground that this would be undesirable. Both a list system (with open lists) and the Single Transferable Vote would allow large constituencies and provide for a spread of representation. There appears to be a consensus amongst reform proposals, shared by the cross-party committee, for either STV or open regional lists. The former has been the policy of the Liberal Democrats for the House of Commons, but the latter has not been proposed by any party for the House of Commons. For that reason, but also those given above in relation to the possible role of the House in a regional/national context, I would prefer a list system based on open lists; although either would be suitable.
Size of the House
84. It will be important that the new House has sufficient members to ensure a fair balance of political representation, and to fulfil its functions. The Campaign supported the proposal in the 2008 White Paper for an eventual size of 400-450 members.
85. The Bill proposes the removal of one third of the present House at each election, under procedures determined by the House itself (Option 1). Other options in the Proposals document are for all present members to remain until the end of the Parliament immediately before the third election (Option 2); or, to reduce the House to 300 members at the time of the first election, of whom only 200 would be present Members (Option 3). The hereditary peers would have no separate right to remain for a period, although they could be amongst the transitional members.
86. The 2008 White Paper also proposed an option whereby the hereditary peers would leave when the final tranche of elected members arrived, with life peers remaining for life.
87. A preferable option would in my view be for the hereditary peers to leave when the first tranche of elected members arrives. It would represent a significant moment of change, and enable hereditary peers to leave with dignity, their places having been taken by elected replacements; arguably in accordance with the spirit of the Cranborne/Weatherill deal.
88. In the event that the departure of life peers by thirds was not attractive to them, they should be allowed to remain if they wish, whilst being encouraged to consider resignation. The temporary large size of the House which would result for a period should not be seen as a barrier to reform.
89. We have a choice, as a society, as to what constitutional arrangements we wish to adopt. Once it has been demonstrated that an elected second chamber can work in a complementary relationship to the House of Commons, it is up to us to choose what is wanted, and how what has been chosen can be delivered; and then to pursue it positively.
 The Septennial Act 1715 was repealed by section 6(3) of, and paragraph 2 of the Schedule to, the Fixed-term Parliaments Act 2011.
 Section 2(1), Parliament Act 1911
 Ministers in the House of Lords, House of Commons Library, August 2010
 Section 2, House of Commons Disqualification Act 1975
 Schedule 1, Part V, Ministerial and other Salaries Act 1975
 Joint Committee on Conventions of the UK Parliament, session 2005-6.
 2006 Report, paragraph 252
 2006 Report, paragraphs 99-100.
 2006 Report, paragraph 150
 A description is given in “Random Recollections of the House of Lords, from the year 1830 to 1836”, by The Author of “Random Recollections of the House of Commons”, (James Grant), Smith, Elder & Co., 1836, pages 26-7.
 2006 Report, paragraph 227.
 2006 Report, paragraph 233
 Proposals document, paragraph 24
 Proposals document, paragraph 25