The awkward squad Labour wants rid of upstairs

The government continues to muddle along on the question of second chamber reform. It’s latest lurch has been to establish a joint select committee to consider how to codify what it describes as the ‘key conventions’ governing the relationship between the Lords and the Commons.

The four ‘conventions’ it refers to are the Salisbury/Addison agreement not to vote down manifesto bills, the practice of not voting down statutory instruments, acceptance that the government of the day must be allowed to get its business in ‘reasonable time’, and practices surrounding the exchange of amendments between the Houses.

Several points may be made about this rather curious exercise. The first concerns the role of conventions within the Constitution. These have generally been understood as widely accepted non-legal rules based on a clear rationale and supported by a weight of precedents. Axiomatic to conventions is the fact that they are not codified. Once altered into a precise rule with some kind of enforcement process they cease to be conventions.

Second, conventions allow for flexibility, which has usually been seen as a distinct advantage over precise rules. Conventions encourage all parties to seek compromise rather than confrontation; they operate to promote consensus rather conflict. If they are replaced by precise rules, those involved will be tempted to push their disagreements to the limit of what is allowable, rather than settle for what is reasonable and practicable in the circumstances.

Third, no one has put forward any convincing case to the effect that the present so-called ‘conventions’ have been broken. On the contrary, the review of evidence so far submitted to the joint committee suggests they are actually working well. Inevitably therefore, one wonders what the real motive of the government is in initiating this exercise. Before returning to that point, a quick word about each of these conventions.

The Salisbury-Addison convention was enunciated during the King’s Speech debate in 1945. It represented an understanding of how the Conservative Opposition would behave in a House where they had an overwhelming majority, while in the Commons Labour had the overwhelming majority.

It was based on earlier understandings that had been reached about the ‘primacy’ of the Commons, which after the 1911 Parliament Act the Lords had shown no sign of challenging. Had the Conservatives in the Lords chosen to reject legislation they did not like, then of course the government would have used the Parliament Act and the Lords would have been marginalised. Instead the Lords chose to re-invent itself as a chamber of scrutiny, complementary to the Commons. The House has never shown any sign of seriously challenging the primacy of the Commons since.

Lord McNally, Liberal Democrat leader in the Lords, emphasised in the 2005 Queen’s Speech debate the importance of keeping the checks and balances the Lords could impose in place, saying: ‘I shall use every power at my disposal, irrespective of the Salisbury convention, to preserve those checks and balances’. This was a defence of parliament against the Executive, not a challenge to the primacy of the Commons.

Nor is the fact that the Lords does not meekly give way to the Commons every time the lower House disagrees with its amendments challenge the primacy of the lower House. On the contrary, one might well argue that the Lords has a duty to show how seriously it takes some of its proposed amendments to Bills — especially these days on civil liberties and human rights — by making the Commons ‘think again’ two or three times.

The severity of constraints imposed by programme motions in the Commons adds force to this point. Nor has the Lords ever challenged the right of government to invoke Parliament Act procedures, which have been used several times without causing any constitutional difficulty. After all, that is what they are there for.

Secondary legislation was not included in the 1911 Act because at the time there was so little of it. So the Lords retains a veto in this area. But for decades the House has accepted that the principle of Commons primacy underlying the 1911 Act must also apply here too.

The House does not vote down statutory instruments. If peers feel an Order ought to be challenged they have various devices for doing this, including non-fatal motions. The two or three occasions on which this convention may have been broken certainly do not justify the call for ‘codification’. Undoubtedly the whole process surrounding subordinate legislation needs reform (and the Lords has been pointing the way, especially with its select committee work), but codifying this particular convention is not the place to start.

Labour’s 2005 election manifesto included (ridiculously) the proposal to legislate to limit the time spent on bills in the House to 60 days. Cluttering up a manifesto with ill-thought out detail of this kind only renders those publications even more useless to public debate at election time that they already are.

One wonders how many electors read through the manifesto to page 110 to find this statement, and then decided this was a good reason for voting Labour.

Jack Straw has already back-pedalled on this, indicating that it is the ability of the government to get its legislation in reasonable time that matters. But the House has generally lent over backwards to ensure this — for example sitting through party conferences several times in the last parliament simply to cope with the erratic flow of badly drafted bills where the overwhelming majority of amendments arose from the government itself.

Ministers have cited the Animal Health Bill where the Lords passed a dilatory motion, mainly because the government was pushing ahead with this measure before receiving the report of an inquiry it had set up into the subject.

Nor was the government pleased when peers voted to send the Constitutional Reform Bill to a special select committee. But in retrospect this is recognised as having been a very helpful procedure to explore more thoroughly the implications of the prime minister’s sudden proposal to abolish the office of Lord Chancellor, remove law lords from the House and establish a ‘Supreme Court’ for the UK.

So, why have ministers embarked on this exercise? Because governments always want the legislative process to be more efficient, quicker and less troublesome. The argument is not really about relationships between the Lords and Commons, but about how parliament relates to the Executive, and these conventions are more about the relationship between the government and the House of Lords.

The government resents the way the Lords has become more awkward and fears that this might increase if the House is further reformed. It spoils the smooth functioning of government to have parliament poking its nose into legislation on its own terms, rather than simply acting out a role choreographed for it by government.

Donald Shell is a Senior Lecturer in Politics, University of Bristol.