Joint Committee report on Draft House of Lords Reform Bill

Maintaining the primacy of the House of Commons

Briefing for debate, 30^th April 2012

1.     The Campaign for a Democratic Upper House welcomes the report of the Joint Committee, and especially its endorsement of the central principle that the second chamber should have an electoral mandate, with commensurate powers [Recommendation 6.1; paragraph 23].   

2.     We recognise that much of the opposition to democratic reform, and many of the concerns of those not opposed to the principle, derive from a fear that the primacy of the House of Commons could be threatened by a democratic second chamber.  We believe that based on the Committee’s report and proposals made to it, including by ourselves, these concerns can be answered.

What does Commons primacy consist of?

3.     The primacy of the House of Commons rests on:

(i)                Functions which only the Commons exercise: forming and maintaining the Government; providing the Prime Minister, and the majority of Ministers and senior Ministers; 

(ii)              Restrictions on the financial powers of the Lords: on Money Bills [bills certified to concern only taxation and spending] in Parliament Acts; Bills of Aids and Supplies (eg the Finance Bill/Budget) under the longstanding claim of the Commons to financial privilege; convention not to send back amendments in lieu once privilege has been claimed;

(iii)            Restrictions on powers concerning primary legislation: the Commons’ power under the Parliament Acts to pass a Bill with which the Lords disagree after passing it again in a second session after one year; the Salisbury-Addison convention in its modern form, as defined by the Cunningham Committee, in relation to manifesto bills, and the practice usually of giving a Second Reading  to any Government Bill; the convention to consider Government business in reasonable time;

(iv)            Restrictions on powers concerning secondary legislation: the convention (as defined by the Cunningham Committee) that the House should not regularly use its power to reject SIs. 

4.     The restrictions on the powers of the Lords rest on a mixture of statute, convention and the Standing Orders of the two Houses. By a combination of proposals already in the Bill, and new proposals recommended or identified in the Report that can be inserted into the Bill and an overall reform package, these restrictions can be set out, reinforced (and in some cases amended) to maintain Commons primacy vis a vis an elected second chamber.

Proposals in the Bill

5.     The single non-renewable term of 15 years would enhance the independence of elected members, and reinforce the distinctiveness of the reformed House. Election in thirds would prevent most members from having a more recent mandate than the Commons (although the Committee had doubts on this point). The 20% appointed Independent members would, as well as retaining non-political expertise, further differentiate the memberships, make the House by definition less legitimate in democratic terms, and make it arithmetically more difficult for one party to command a majority.  

Joint Committee’s proposals

6.     The majority of the Committee, “while acknowledging that the balance of powers between the two Houses would shift, consider that the remaining pillars on which Commons primacy rests would suffice to ensure its continuation” (Conclusion 6.11). They considered it inevitable, and desirable, that a means should be established to define and agree the conventions governing the relationship between the two Houses; and thereafter to keep them under review. The Report recommends a concordat between the two Houses, in the form of parallel, identical resolutions prepared by a Joint Committee and agreed by each House (as advocated by the Campaign) [Recommendations 6.15-16; paragraphs 89, 93].[1] New conventions, or modifications of existing ones, would be promulgated in the concordat. In line with the Cunningham report, work should begin as soon as possible, for completion after 2015.

7.     We believe that a concordat, supplemented if appropriate by limited legislation in certain areas, would set out the political and constitutional framework within which the reformed House would operate in relation to the Commons. This mechanism would retain control within Parliament and exclude judicial intervention.

8.     The present conventions have largely been defined by the Cunningham Committee (2006). The resolutions would set out in agreed form the elements of Commons primacy that arise from convention, notably: formation and maintenance of the Government; Finance Bills and financial privilege; the Salisbury-Addison convention; consideration in reasonable time; and, statutory instruments (see below).  

9.     The Committee recommends that the Government consider improved dispute resolution procedures between the two Houses, and that the Joint Committee on  the conventions should examine this (Recommendation 6.85; paragraph 371).  We proposed a conciliation committee to resolve disputes over Bills after (eg) three rounds of voting.

10.                        The Campaign has also made other proposals relevant to Commons primacy:

a.     In relation to most of the senior Ministers, including the Prime Minister being members of the Commons, this could be a matter for limited legislation, which could be drafted with little scope for judicial interpretation (eg a limit of 20% of ministers could be members of the second chamber, with a further limit on the number of members of the Cabinet or Ministers of State). Alternatively, such proposals could form part of the concordat;

b.     In relation to powers over Statutory Instruments, the veto power should be replaced (in the Bill) with a short delaying power of, for example, one month, to oblige the Government to think again;  but after which the SI, if re-presented in the same form, would be passed;

c.      If length of consideration of Bills became an issue in the future, reserve powers to introduce timetabling in the second chamber could be included in the reform package; for use only if recommended by the Joint Committee; 

d.     Members of the second chamber could be given a statement of their role, and a “job description”, contrasting their role with that of MPs.  

11.                        In relation to the application of the Parliament Acts, the Committee noted the views of L. Pannick and L. Goldsmith that the Acts could properly be used to reform the House of Lords, and that the courts would uphold such a decision (Conclusion 6.83; paragraphs 359-362). They also noted their views on the question of whether the Acts would continue to apply to a reformed House; and that this could be resolved by making provision for it in the reform bill. The Committee recommended that the Government do so if it wished to ensure that the Acts continued to apply (Conclusion 6.84; paragraphs 363-368).

12.                        By all or any of these means, the primacy of the House of Commons can be maintained, whilst still strengthening Parliament overall by introducing an elected second chamber.

Damien Welfare,

Co-ordinator, Campaign for a Democratic Upper House

www.democraticupperhouse.org.uk; democraticupperhouse@gmail.com; 07947 616821

The Campaign is a grouping of Labour Parliamentarians and members who support a second chamber that is wholly or largely elected.