The constitutional context

1. Two central features of the present constitutional settlement in the United Kingdom are simple, at least in theory, and well-known. One is the sovereignty of Parliament. The other is the absence of a written constitution.

2. Legislation in the United Kingdom can be passed only with the authority of the Crown in Parliament. Moreover, although elements of the constitution have been progressively set out in legislation, there remains no formal constitutional check on Parliament’s sovereign authority. The Human Rights Act 1998, for example, is carefully drafted to preserve Parliamentary sovereignty: judicial declarations of incompatibility do not strike down primary legislation and the fast-track procedure for passing remedial orders requires the authority of Parliament. There is therefore no judicial remedy against Parliament’s clearly expressed will. It follows that the will of Parliament must be the product of careful consideration and debate. Procedures need to be in place to ensure that when Parliament acts with a will it does not act wilfully.

3. Several other features of the present constitutional settlement are also relevant. The House of Commons, because it is directly elected by the whole people, is the ultimate repository of democratic authority in the United Kingdom. It alone can make and unmake Governments and call the Prime Minister and the Government fully to account. It authorises taxation and supply and can, if it wishes, achieve its legislative objectives in the face of opposition from the House of Lords. In other words, whatever the theory, Parliamentary sovereignty in the United Kingdom ultimately resides, in practice, in the House of Commons. As things stand, the House of Commons could, if it insisted and subject to a delay of only about 13 months, achieve almost any result it desired, including the further amendment of the Parliament Acts. Here, we believe, is another reason for the existence of a second chamber sufficiently confident and authoritative to require the House of Commons, at the very least, to think again.

4. Moreover, within the House of Commons, the Government of the day is normally in a dominant position. It must of course retain the support of its Parliamentary followers and therefore has every incentive to be alert to their opinions. In practice, Governments are also constrained by the media, public opinion and the fear of defeat at the next general election. Nevertheless, Governments in the United Kingdom can usually get their way. Their Budgets are implemented. So is the great bulk of their legislative programme. In addition, the Government of the day exercises extensive executive powers by right of the Royal Prerogative, including the power to make appointments and enter into treaties. Given the Government’s enormous power in our system, it seems to us important to have a second chamber able and willing to complement the House of Commons in its essential work of scrutinising the executive and holding the Government to account.

5. This need is reinforced by the fact that Governments in the United Kingdom are normally one-party Governments, backed by absolute majorities in the House of Commons. There is no need for Governments in the United Kingdom, as there is for governments in many other countries, to negotiate with coalition partners over their Budgets and legislative programmes. Moreover, although Governments in this country must be alert to the views of their backbench supporters, the fact remains that, thanks to the high level of party discipline that obtains, the Government’s will usually prevails. It was all these considerations that led Lord Hailsham of Saint Marylebone a generation ago to describe the United Kingdom’s system of government as amounting to an ‘elective dictatorship’.

6. The further point is sometimes made that there is something inherently unsatisfactory about the fact that strong Governments in the United Kingdom, usually with secure Parliamentary majorities, are in fact typically elected on the basis of only a minority of the popular vote. Not since 1935 has any single party in the United Kingdom won more than 50 per cent of the vote. Our own concern, however, is somewhat different. Our concern is with creating a second chamber sufficiently robust to act, alongside the House of Commons, as a check on the Government of the day, whatever its basis of electoral support. If Governments were typically elected on the basis of majority support, the need for such a constitutional check might well be greater, not less.

7. While we recognise the numerous informal constraints which restrict any Government’s freedom of action (and which can frequently make life difficult for a Government), we are also concerned that the number of formal constraints on Governments is so limited under our constitution. In particular, we are concerned that the House of Commons often finds it difficult to balance its twin responsibilities of sustaining a Government in office and at the same time holding it effectively to account. Backbenchers on the Government side frequently speak out, and there are occasional Parliamentary revolts, some of them significant. But our view is that the country’s new constitutional arrangements should provide for a second chamber which does not pose a threat to the House of Commons’ pre-eminence but which is nevertheless able to augment and complement the Commons’ work. It should enhance the ability of Parliament as a whole to scrutinise the executive and act as a check upon it.

(“ A House for the Future” Royal Commission on the Reform of the House of Lords Chairman: The Rt Hon Lord Wakeham DL)

Task VI. a) Read the text, make up the heading for it;

a) Determine and discuss the key message of each paragraph;

b) Make up the list of legal documents which reflect the Government’s reform proposals;

c) Explain the reasons for reforming the Lords;

d) Describe the major changes introduced into 1) the membership and 2) the powers of the Lords;

The Labour Party’s manifesto for the 1997 general election stated:

1. The House of Lords must be reformed. As an initial, self-contained reform, not dependent on further reform in the future, the right of hereditary peers to sit and vote in the House of Lords will be ended by statute. This will be the first stage in a process of reform to make the House of Lords more democratic and representative. The legislative powers of the House of Lords will remain unaltered.

2. The white paper was published in January 1999 (Modernising Parliament: Reforming the House of Lords), and confirmed the Government’s intention to legislate to remove the hereditary peers from the House of Lords (and, consequently, to enable them to stand and vote in elections to the House of Commons). The white paper also confirmed that this legislation represented the first stage of Lords reform, and that the Royal Commission would consider longer-term reform.

3. The Bill passed to the House of Lords on 17th March 1999 and received its second reading over 29th and 30th March 1999. Opening the debate on 30th March, the Lord Chancellor, Lord Irvine of Lairg, turned to what would become known as the Weatherill amendment, but was not yet tabled:

‘The noble Lord’s amendment would provide for the interim retention of one in 10 of the hereditary Peers, 75 out of the existing 750, plus 15 hereditary officeholders, until the second stage of House of Lords reform has taken place. The amendment reflects a compromise negotiated between Privy Councillors on Privy Council terms and binding in honour on all those who have come to give it their assent. Like all compromises it does not give complete satisfaction to anyone. That is the nature of compromise.”

4. From the government point of view, the purpose of the Weatherill amendment was to ensure the easy passage of the bill and avoid obstruction to other parts of its legislative programme. It was a tactic, and ministers sought to justify it on the grounds that the arrangement would only affect the interim House, which would have a short life. But for Labour it was a very significant compromise. In a formal sense, it certainly was a breach of its manifesto which had clearly stated that hereditary peers would be removed. It was a decision thrust upon the party and one the implications of which were never properly debated, certainly not by MPs …

5. Were these peers being retained as working peers, members of the existing House whose continued contribution would be desirable in the interim House because of their experience? In so far as Labour ministers developed a rationale, it was along these lines. But if this was the objective, the government could have ensured some continuity among working peers by granting life peerages to some of the existing hereditary peers, including frontbenchers, deputy speakers and committee chairmen. Indeed, among those who had discussed Labour’s strategy for the two-stage reform, this had always been assumed. Instead, Labour chose to ensure continuity by allowing within its own legislation for the continued inclusion of hereditary peers. Conservatives, for their part, increasingly referred to these as representative peers, not working peers, chosen by their hereditary colleagues to ensure the continuation of an independent element in the interim House.

6. Since the 1999 Act, various proposals for the next stage of reform of the House have been put forward, and have generated considerable debate. During this period, some have argued that the ‘transitional’ or part-reformed House should be subject to more limited reform, in the absence of consensus over any final settlement. Specifically, there have been calls for the ‘anomaly’ of the remaining hereditary peers to be addressed. In an article in Parliamentary Affairs in 2004, Donald Shell wrote:

“From the government point of view, by 2004 the House of Lords represented a blatant piece of unfinished constitutional business. The claim that removing the great majority of the hereditary peers under the 1999 House of Lords Act had made the House ‘more democratic and representative’ (as proposed in the 1997 manifesto) looked unconvincing. The government believed it had made 21considerable efforts to be accommodating. The agreement embodied in the 1999 Act to keep 92 hereditary peers, and to allow this group to replenish itself indefinitely through by-elections when vacancies occurred, was a significant compromise.”

7. On several occasions the Government have reiterated their intention (including commitments in the 2001 and 2005 manifestos) to remove the hereditary Members remaining by virtue of the Weatherill amendment, either as part of a wider package of reforms to the membership of the House, or as a stand-alone measure awaiting agreement over further reform, stating that the retention of the 92 was never intended to be anything other than a temporary arrangement. Equally, opposition peers have pressed the Government to honour what they consider a binding agreement that the 92 would remain until the second stage of reform had been agreed.

8. The Government’s most recent proposals for reform of the House of Lords were set out in a wide-ranging green paper on constitutional reform, The Governance of Britain (July 2007). This committed the Government to enacting the will of the House of Commons, which in March 2007 had voted in favour of a fully or substantially (80%) elected House of Lords. As the green paper noted, both the Conservatives and Liberal Democrats had called for a substantially-elected House in their 2005 manifestos: The Government’s first attempt at stage two reform, the White Paper published in June 2001 in response to the report of the Royal Commission on House of Lords Reform, proposed a 20 per cent elected house with the remainder being appointees (20 per cent independent and 60 per cent party appointees). This ran into strong Labour backbench opposition, with a number of calls for a larger elected element, and was dropped in May 2002.

9. The February 2002 proposals of the Public Administration Select Committee more closely represented MPs’ views; it juggled the Royal Commission’s proportions so that there would be 60 per cent elected and 20 per cent party political appointees with the remaining 20 per cent being independent appointees.

10. The July 2008 White Paper thus only considered the options of an 80 per cent and a wholly elected House – and does not decide on either but instead leaves it open for further consultation. This is just one of a number of points that the White Paper left open and that is one of the reasons it was not well received, coming in for criticism in both Houses (HL Deb 2008; HC Deb 2008), by the media and from a former speaker of the House of Commons.

11. Although it is a government White Paper it is again the product of cross-party discussions and there are areas where there has been no agreement (e.g. whether to use first-past-the-post or another electoral system and, if an 80 per cent elected house is chosen, the presence of Bishops and the status of the appointments commission). However, it is clear that the powers of the House of Lords should not be reduced (White Paper 2008, chapter 5) despite there earlier having been proposals to limit scrutiny of bills to just 60 days and, as with the 1968 White Paper, cut the power to delay to 6 months.

12. Among the more concrete reforms is the proposal that elected members of the reformed House should serve 12-15 year terms and not be available for re-election (an idea designed to enhance independence which has been a feature of many other reform proposals). The government also proposes that members should be salaried and, while leaving the fine detail open, proposes on principle that members‟ salary should be less than that of MPs but more than that of members of devolved legislatures (which would mean at today‟s prices that a member elected for 12 years would receive some £600,000). The method of election, the transitional arrangements (with three possibilities considered with final end dates ranging from 2020 to 2040) and, less intractably, the presence of both Bishops and retired Justices of the Supreme Court all remain open. Although the White Paper does not decide on whether the reformed House should be wholly or 80 per cent elected, it does note the difficulty of including an independent element within a wholly elected chamber.

13. A “Weatherill 2” system – extending the principle of the Weatherill hereditaries to Life Peers (but with the numbers of party peers changing according to, for example, either general or local election results) – could provide a combination of the benefits of election and appointment while mitigating some of the problems with both.

e) Agree or disagree with the following statements:

The current reform:

· will change the balance of powers in the UK;

· will make the executive more/less powerful;

· will undermine the independence of judiciary;

· will further restrict the powers of the Monarch;

· will promote democracy;

· will serve the interests of the British people;

· will serve the interests of the wealthiest class;

· will bring the monarchy to an end;

· will require the adoption of the written constitution;

· will be in line with the separation of powers doctrine;

· will call for other constitutional changes.

Task VII. Learn more about the UK legislation:

· Why are new laws needed?

One of Parliament’s main roles is debating and passing statute law (legislation). The Government introduces most plans for new laws, with many included in the Queen’s Speech at the opening of each session of Parliament, and changes to existing laws. However, new laws can originate from an MP or a Lord.

Emergency issues such as the threat of terrorism, pressure on the Government to update old laws and case law in the courts, interpreting, clarifying and re-applying established principles of statute law, all contribute to the need for new laws.

· Who is consulted about changes to the law?

Before draft laws, known as Bills, are introduced into Parliament, there is often consultation or discussion with interested parties such as professional bodies, voluntary organisations and pressure groups.

· White and Green Papers

Proposals for legislative changes may be contained in government White Papers. These may be preceded by consultation papers, sometimes called Green Papers, which set out government proposals that are still taking shape and seek comments from the public. There is no requirement for White or Green Papers to be introduced before a Bill is introduced into Parliament.

Green Papers

Green Papers are consultation documents produced by the Government. Often when a government department is considering introducing a new law, it will put together a discussion document called a Green Paper.

The aim of this document is to allow people both inside and outside Parliament to debate the subject and give the department feedback on its suggestions.

Copies of consultation documents such as Green Papers and White Papers which are produced by the Government are available on the related departmental websites.

White Papers

Documents produced by the Government setting out details of future policy on a particular subject. A White Paper will often be the basis for a Bill to be put before Parliament. The White Paper allows the Government an opportunity to gather feedback before it formally presents the policies as a Bill.

· Draft Bills and pre-legislative scrutiny

A Draft Bill is a Bill that is published to enable consultation and pre-legislative scrutiny before a Bill is formally introduced into either the House of Commons or House of Lords.

A Draft Bill is considered, often by a departmental select committee in the Commons or by a joint committee of Lords and Members of the Commons. This allows MPs and Members of the Lords to have early influence on the Bill. This process is known as pre-legislative scrutiny.

TEXT 6 Composition of the Modern House of Lords

The House of Lords has existed as a separate Chamber of Parliament since the 14^th century, and is part of the oldest parliamentary democracy in the world. It is also one of the busiest, second only to the House of Commons in the number of days and hours it sits.

A major task of the House of Lords is to examine and pass legislation. The House plays a key role in revising legislation sent from the Commons and thus complements the work of the elected House of Commons. It also initiates legislation, and so shares the burden of the legislative load. Another important function is to act as a check on government by scrutinising its activities. The House of Lords does this by asking questions, debating policy and, through its select committees, taking evidence from ministers and others. Questions are directed at the Government as a whole, not at specific government departments on set days (as in the Commons). They enable Members to check on government activities, raise issues of concern about government policy and seek information.

Members of the House of Lords are organised on a party basis in much the same way as the House of Commons, but with important differences: Members of the Lords do not represent constituencies and many do not support one of the three main parties — these independent Members are known as ‘Crossbenchers’.

There is no upper limit on the total number of Members. The House of Lords members are currently subdivided into Lords Temporal and Lords Spiritual. Unlike MPs, the public do not elect the Lords. The majority are appointed by the Queen on the recommendation of the Prime Minister or of the House of Lords Appointments Commission.

Before the present House of Lords reform Lords Temporal were classified into hereditary Peers, life Peers and Lords of Appeal in Ordinary.

Nowadays the core membership of House of Lords is made up of Life Peers who are appointed for their lifetime only, these Lords’ titles are not passed on to their children. They are created under the Life Peerages Act 1958. The Queen formally appoints life Peers on the advice and recommendation of the Prime Minister.

Today there are 92 hereditary Peers in the House of Lords. Previously this group included all hereditary peers and peeresses of England, Scotland, Great Britain and the United Kingdom who have not disclaimed their peerage under the Peerage Act 1963. However, the right of hereditary Peers to sit and vote in the House of Lords was ended in 1999 by the House of Lords Act but 92 Members were elected internally to remain until the next stage of the Lords reform process. Disclaiming a peerage is now an anachronism.

Under the Constitutional Reform Act 2005, the existing Lords of Appeal in Ordinary became in 2009 judges of the new Supreme Court of the United Kingdom and are barred from sitting or voting in the House of Lords until they retire as judges.

Members of the House of Lords who sit by virtue of their ecclesiastical offices are known as Lords Spiritual. The Lords Spiritual include the Archbishops of Canterbury and York, the Bishops of London, Durham and Winchester, and the 21 next most senior diocesan bishops of the Church of England. A limited number of 26 Church of England archbishops and bishops pass their membership on to the next most senior bishop when they retire. The Archbishops of Canterbury and York traditionally get life peerages on retirement.

The Lord Speaker presides over business in the Chamber. Unlike the Commons’ Speaker, she or he does not call on Members to speak and has no powers to call the House to order because the House of Lords is self-regulating. The Lord Speaker is elected by the House and is politically impartial.

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