The Primacy of the Commons and Lords Reform

As I have previously written, the UK Government has brought forward a draft bill on reforming the House of Lords. A Joint Select Committee – meaning a committee with membership drawn from both the House of Commons and the Lords – has been holding a series of meetings hearing from constitutional and other experts.

I have been following some of these hearings with great interest, either watching the meetings on the UK Parliament website, or reading through the written evidence, and sometimes both. If there has been a common theme emerging, it would be the issues of whether a partially or fully elected Lords will challenge the primacy of the House of Commons. The consensus, at this stage, would seem to be yes, it will.

The draft bill attempts to ensure this won’t occur in Clause 2, the “General Saving” clause. Section 1 of that clause reads:

2 General saving
(1) Nothing in the provisions of this Act about the membership of the House of Lords, or in any other provision of this Act—

(a) affects  the status of  the House of Lords as one of  the  two Houses of Parliament,
(b) affects the primacy of the House of Commons, or
(c) otherwise affects the powers, rights, privileges or jurisdiction of either House  of  Parliament,  or  the  conventions governing  the  relationship between the two Houses.

Clause 2 of the draft bill seeks to protect the primacy of the Commons and the conventions governing the relationship between the two Houses, but the majority of witnesses have expressed doubts or reservations about how effective legislative provisions can be in circumscribing the behaviour of a reformed House of Lords.

What is meant by the primacy, or pre-eminence, of the House of Commons is that when there is disagreement between the two Houses, the will of the Commons normally prevails. This convention stems from certain provisions in the Parliaments Act, as well as through a couple of other provisions that have given the Commons greater powers: the Constitutional Reform and Governance Act, which has given the Commons a role in relation to treaties, and the Localism Act, which has given the Commons a role in relation to national policy statements. Other conventions further strengthen this, such as the financial privilege of the Commons. By invoking this privilege, the Commons is entitled to disagree with any amendment put forward by the Lords and reject it without having to provided any reasons for doing so, other than claiming the existence of said privilege. The Lords traditionally accept this. Another convention which ensures the primacy of the House of Commons is the Salisbury-Addison Convention, which has evolved so that is is now the case in the House of Lords that not just manifesto Bills, but, normally, all government Bills get an undisputed Second Reading. However, perhaps the principal check on the Lords over-ruling the Commons is the recognition that the House of Commons is elected, the Lords appointed, and thus the Commons has a greater legitimacy given its popular mandate.

Of course, if the Lords were partially or fully elected, the argument that they lack a popular mandate no longer exists, and many fear that this will lead to gridlock between the two Chambers. Elected peers will be less reticent to continue to fight the Commons over amendments to bills, for example. Certain powers that the Lords have but rarely or never exercise, or exercise only in a very limited way, because of their current lack of a popular mandate, could be dusted off and used.

This view was expressed by many of the witnesses who appeared before the Joint Committee (and was expressed by members of the Committee themselves). Here are a few examples from the written evidence. During his appearance before the Committee on 23 January 2012, David Beamish, Clerk of the Parliaments, stated:

Thirdly, Clause 2 seeks to protect the primacy of the House of Commons and the conventions governing the relationship between the two Houses. While the Parliament Acts certainly ensure that the will of the Commons can usually prevail, I have reservations about how effective legislative provisions can be in circumscribing the behaviour of a reformed House of Lords. (p. 5 of the uncorrected oral evidence)

When Lord Pannick appeared before the Committee on 30 January 2012, he was asked if he agreed with the view expressed by Lord Goldsmith that if the House of Lords were to be fully elected, the Parliament Acts would no long apply. Lord Pannick responded:

My opinion is that the better view is that the 1911 Act would no apply in the event that the upper Chamber were wholly or mainly elected. I say that for these reasons. First, the Preamble to the 1911 Act makes it very clear indeed that Parliament’s intention was to move in the future to a second Chamber that was popularly elected. Secondly, it is clear to my mind that the purpose of the Parliament Acts was to regulate the relations between the two Houses at a time when one House was elected and one was not. Thirdly, there is no material that I can see in the Hansard debates that suggests that the 1911 Act was intended to apply even when we moved at some time in the future to a position where both Houses would be elected. The conclusion that I have drawn from this is that it is absolutely vital, in my opinion, for the reform Bill to specify with clarity whether or not it is the intention that the Parliament Acts should continue to apply in the even of there being a substantially or wholly elected upper Chamber. (…) I think that the better view is that the 1911 Act would not continue to apply, but it seems to me wholly desirable for the matter expressly to be addressed in the Bill. I do not think that the current Clause 2 of the Bill adequately addresses that question, not least because it does not specifically refer to the 1911 Act; it refers to provisions affecting the primacy of the House of Commons, which is ambiguous. (pp. 6-7 of the uncorrected oral evidence)

Lord Cunningham of Felling, who testified on the same day as Lord Pannick, had this to say about Clause 2 in his opening statement (pp. 31-32 of the uncorrected oral evidence):

In Clause 2 of the Bill, which, trying to be kind, I can describe only as disingenuous, there are a number of naive propositions. it is almost like someone walking off a cliff-edge in the dark. It suggests that all these things can happen – that profound changes can take place – but nothing else will be changed. (…) The purpose of this draft Bill and any legislation that follows it is to empower the second Chamber. It is to make it an entirely different place. In the eyes of the public and those elected, it is to have a mandate of at least equal authority to that of the people in the House of Commons. That is, by any test, a profound change. That empowerment cannot be denied by custom and practice, convention or any other of the arrangements that currently obtain between the two Chambers. If it does not change those things, it is a denial of the mandate an the power of election.

He then referred to international examples of elected second chambers in Japan, Australia and the United States and added:

People say that Members elected to the upper House in the United Kingdom will not have constituency duties or correspondence. They will not act a though they were elected Members. That beggars belief. Senators in America have the most powerful committees in Congress. They take a view on international relations, defence, energy policy, the environment and global warming. Of course they do that; they feel, as elected Members, that they have every right to do so. I share their view.

Two members of the Joint Committee attempted to argue that an elected Lords would have a lesser mandate than the House of Commons, therefore the primacy of the House of Commons wouldn’t be undermined. Baroness Symons of Vernham Dean asked Lord Cunningham which of the two Chambers would have a stronger mandate on the basis of the size of their electorates (76,000 for a Member of the House of Commons versus 570,000 for a Lord). Lord Pannick rejected this, stating:

A mandate is a mandate, regardless of the size of the electorate. It is true to say that if someone is elected by an electorate of between 500,000 and 600,000 voters, that is a much broader sweep of the electorate. Therefore, it  could be argued that that is a stronger, more representative mandate, but I would not get carried away about that. I do not think that anyone says that the two Senators who represent a state in the USA where there are millions voting for them have a better mandate than members of the House of Representatives. As Lord Richard and I discussed earlier, it is just that, on  the basis of how the constitutional 52 and other arrangements in Congress  have evolved, the Senate has become more powerful. However, that is not related to the number of voters. (p. 51)

Similarly, MP Gavin Barwell asked: “Could I put it to you that someone who is elected in a general election on a turnout of 70%, when the election is specifically to form the Government of the country, has a greater mandate than someone who is elected in a multi-Member constituency on a lower turnout for the explicit purpose of membership of a second Chamber? Would you not accept that the level of mandate in those two situations is different, or do you see them as equal mandates?”

The following exchange then took place (p. 56):

Lord Cunningham of Felling: You can put it to me, but I do not agree. It is like saying that Members of the European Parliament or Members of the devolved Administrations do not have a mandate.
Gavin Barwell: I did not say that anyone did not have a mandate. It is about the level of mandate.
Lord Cunningham of Felling: A mandate is a mandate.
Gavin Barwell: No,  it  is not. For example,  I put  it  to you  that  the Mayor of London, elected by millions of Londoners, has proven to have a much stronger mandate than the  old  leader  of  the  GLC  had.  There  is  a  difference. Mandates  come  in  different degrees.
Lord Cunningham  of  Felling:  You  are  comparing  apples with  pears,  are  you  not? There was no elected mayor under the GLC, so you are not comparing like with like.

Mr. Barwell raised the same point with another witness, Lord Grocott, again finding that few agree with his “lesser mandate” theory:

Gavin Barwell: My question is for Lord Grocott and picks up the question that I put to Lord Cunningham. You described your role as a back-room boy and said that at the moment there is a presumption that the House of Commons has primacy. Is primacy a digital quality or an analogue one? In other words,if you moved to the world envisaged in this draft Bill, what would the presumption be of someone doing the kind of roles in which you have been involved?
Lord Grocott: Inevitably,if I was the Chief Whip of an elected Labour group in the House of Lords, my position would be pretty much the same as being Chief Whip of a  72 Labour group in the House of Commons. That is to say, my Members would have been elected on the most recent manifesto and the job would be to deal with that. Frankly, on many of the Bills coming from the coalition now, there would be a whipped vote to vote it down, preferably at Second Reading, and to harass it at every stage, if not at Third Reading. That is how it would operate.
Gavin Barwell: Let me pick up on two of those points. Assuming that the draft Bill went through, you would be a Labour Chief Whip in a House that was 80% elected, not 100% elected, and two-thirds of your Members would have been elected prior to the most recent general election for the House of Commons. Would you still feel that you had a mandate equal to that of the House of Commons under those circumstances?
Lord Grocott: It is not so much what I would feel as what the individual Members would feel. Presumably they would all go back to their constituency parties—we all have different mechanisms—but it would be difficult to do so and say, “I really dislike this Health Bill. In fact, you told me not to vote for things like this when you selected me as a candidate, but I’ve got to recognise the primacy of the House of Commons so I’ll go along with it.”  The answer is that it would be impossible to  sustain your position in relation to your own party unless you operated in pretty much the same way as Members of the House of Commons operate. (uncorrected oral evidence, 30 January 2012, pp. 71-72)

I could quote many more instances of witnesses objecting to the idea that the primacy of the House of Commons wouldn’t be affected by a partially or (in particular) a fully elected upper Chamber, but you get the general idea.  One only has to do a search for the word “primacy” in the Written Evidence submitted to the Committee to see that few agree that Clause 2 will suffice to guarantee the primacy of the lower Chamber. Lord Cunningham stated as much: “I have read some of the submissions on Clause 2 of the draft Bill. I do not think that I have read anything complimentary about it.” (p. 46)

However, one witness before the Joint Committee had a very different view. MP Graham Allen, who is also the Chair of the Commons Select Committee on Political and Constitutional Reform, argued that what existed in the UK system was not the primacy of the House of Commons, but rather:

the primacy of Government. We have Executive sovereignty. I think that there is an opportunity again here for those of us in the first and second Chambers to work together more effectively to do what Gladstone said of the role of the House of Commons, which is not to run the country but to hold to account those who do. (…)

Then there is the issue that occasionally gets raised in the context of primacy, which is that  somebody has got  to win. Virtually no western democracy  thinks  like  that. You can  have  independence within  your  institutional  settlement,  and  it works,  provided that  you have  reconciliation. An  effective process of  reconciliation  can be  found  in almost  every  other  democracy.  The  second  and  first  Chambers  working  together could quite  easily  come  to have  common  custom  and practice on  reconciling  their views  and  I  think  that  that  would  make  us  stronger  in  holding  Government  to account. (from the uncorrected oral evidence, 23 January 2012, p. 26)

There are a myriad of other key issues being raised in these hearings, and I urge you to either watch the archived evidence sessions, available here, or read through some of the written evidence, available here. The next hearing is scheduled for 27 February 2012, with Deputy Prime Minister Nick Clegg and Mr Mark Harper MP, Minister for Political and Constitutional Reform.

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  • JD

    How can any change to the membership of the upper house undermine the primacy of the lower house when the latter can OVERRIDE the former under almost any circumstance?I’m just astounded nobody ever seems to bring this up. It’s all just about presumptions about mandate and the ‘convention’ that the Commons have primacy – something that is perfectly simply codified in the Parliament Acts.
    And I don’t buy that these wouldn’t apply if the bill passes. Not only is the bill perfectly clear that the Parliament Acts remain in place, the only argument against is based on the preamble of the latter, rather than on any formal clause about automatic reppeal in case of reform.
    At the end of the day, the upper houses that should be studied are those that are directly elected but can be overriden in a similar way to the Lords, as for example in Poland, the Czech Rep. and Spain.

    Your thoughts?