Legislature II – The House of Lords
The House of Lords is currently a non-elected chamber. It plays a part in the legislative process but ultimately its powers are very limited. Nevertheless many argue that the quality of debate in the House of Lords is high and the House can sometimes effectively challenge the Commons.
The House of Lords is the older of the two chambers of Parliament. Historically, membership of the Lords was limited to hereditary peers and representatives of the Church of England. The judges of the House of Lords were appointed under the Appellate Jurisdiction Act 1876. Life Peers were introduced in 1958 under the Life Peerages Act. The House of Lords has been the object of reform for a long time. However, although some reforms took place in the 20th century, the overall composition of the House of Lords remained one determined either by birth or by appointment. That changed with the House of Lords Act 1999, which removed most of the hereditary peers from the House of Lords as the first stage of a modernisation programme.
For many years there has been opposition to the continued existence of the House of Lords as the second chamber in our present bicameral parliamentary system. Nevertheless the fact remains that a second chamber is needed to assist in the legislative process and the House of Lords performs the functions of a second chamber extremely well.
However, despite the success of the House of Lords in performing its functions it can be argued that the House is nevertheless restricted by its aristocratic and unrepresentative composition from exercising its powers effectively. In a democracy, it may be argued all legislators should be directly accountable to the people at elections or at least accountable indirectly, for example, by election by the House of Commons. Their Lordships, however, take their seats in the legislature either because they are hereditary peers or because they have been created life peers under the Life Peerages Act 1958. The former are criticised on the grounds that high office should be awarded to those who earn it on merit and not by accident of birth, and as most hereditary peers are Conservative this leads to a permanent Conservative majority in the House. The life peers are criticised because of the considerable powers of patronage left in the hands of the Prime Minister to reward party loyalists and retiring ministers with seats in the Upper Chamber. It is also thought by some that since the members of the House of Lords do not represent any body of constituents they speak for a small privileged section of the community.
As Lord Birkenhead once memorably said in debate to a member who annoyed him: `The noble Lord represents no-one but himself – and I don’t think much of his constituency’
a) The composition of the House of Lords
i) The Lords Spiritual: Archbishops of Canterbury and York, the Bishops of London, Durham and Winchester, and the next 21 diocesan bishops of the Church of England in seniority of appointment.
ii) The Lords Temporal:
• Hereditary peers and peeresses in their own right of England, Scotland, Great Britain and the United Kingdom,
• Life peers created under the Life Peerages Act 1958.
• Lords of Appeal in Ordinary. .
Arguments that the role of the House of Lords in the legislative process is an `affront to democracy’ focus primarily on the composition of the Lords. As an unelected body, comprised largely of both hereditary peers, whose status as members of the legislature is derived from blood rather than the ballot box, and of life peers (Life Peerages Act 1958), who are political appointees, the House is fundamentally unrepresentative.
b) The functions and work of the House of Lords:
The major functions of the House lie in scrutinising, amending and approving law-making proposals which have been passed by the House of Commons. Bills may also start their legislative passage in the Lords, a useful device for relieving time in the hard-pressed Commons. The powers of the Lords are limited by the Parliament Acts 1911 and 1949. These Acts provide that in relation to money bills (those bills solely concerned with finance), the House of Lords must approve the bills within one month. In relation to other bills, which are the vast majority, the Lords may delay a bill for up to twelve months over two parliamentary sessions, suggesting and negotiating amendments to the bill. After this period, if the Lords has rejected a bill twice, or amended it in a manner unsatisfactory to the Commons (which amounts to the same thing), the government may employ the Parliament Acts to overcome House of Lords’ opposition and go straight for the Royal Assent, which is the final requirement for making a bill an Act of Parliament
The actual and potential conflicts between the two Houses in the legislative process should not be overemphasized. While the Parliament Acts 1911 and 1949 set out rules under which the House of Commons may – in the face of sustained opposition in the Lords – present a bill for the Royal Assent without the Lords’ consent, the Acts are rarely used. The reason for this lies in the various constitutional conventions and practices which regulate relations between the two Houses, which together reduce the need to resort to the law.
The House of Lords provides a useful forum for debating the great issues of the day.
The Lords is also a debating chamber. Less controlled by the party whip system than the Commons, there is greater individual freedom in the Lords than the Commons. This freedom is also enhanced by the fact that the Lords are unelected, whether hereditary or appointed, and do not continue to hold their seats at the mercy of government. Once appointed, the Member’s position is secure. In the Commons, the time on the floor of the House is largely controlled by the government of the day, and dominated by the government’s need to get its legislative programme through Parliament within the annual session. In the Lords, however, time, while still restricted by legislative scrutiny, is less dictated by government need than by the Lords’ perception of matters of public interest which require debate. Government may find a particular issue morally sensitive or best avoided because of the political consequences. The Lords, not being politically accountable to an electorate, have no such qualms: ‘unpopular’ issues (unpopular with government, that is) or controversial matters such as euthanasia, abortion, embryo experimentation, poverty and welfare, housing and employment may get a better airing in the Lords than the Commons. The House of Lords also plays’ a role in the scrutiny of government, and in the scrutiny of European legislation and delegated legislation.
The House of Lords is the second or ‘Upper’ House. Unelected (as yet) and unaccountable, the Upper House is able to contribute to public debate and to subject legislation to an independent and often expert form of scrutiny.
The 1968 Government White Paper House of Lords Reform referred to seven functions of the House of Lords.
i) Its appellate role as the supreme court of appeal.
Firstly, the House of Lords acts as the final court of appeal for the whole of the United Kingdom in civil cases and for England, Wales and Northern Ireland in criminal cases. If the House were abolished therefore a new ‘supreme’ court would have to be established to take its place, unless of course the Court of Appeal were to become the final appeal court for England and Wales. However, as the judicial work of the House is separate from its other functions and only involves the judicial Committee – drawn from the Lord High Chancellor, the Lords of Appeal in Ordinary and Lords who hold or have held high judicial office – the separation of the judicial Committee from the rest of the House of Lords or its replacement by some new body would not perhaps cause too great a constitutional problem.
ii} The provision of a forum for free debate and matters of public interest.
Secondly, the House provides a forum for free debate on matters of public interest, Wednesday in particular being traditionally set aside for special debate on a wide range of subjects. Apart from the fact that these debates are usually of a very high standard; a standard that would perhaps never be reached in the Commons, even if the time were available, this loss would not pose any great constitutional problem.
The House provides a forum for free debate on matters of public interest. Wednesday is traditionally set aside for special debates on a wide range of subjects. Debates may be initiated either by the government, opposition, backbench or independent members. Once a month, from the beginning of the Session until the Spring Bank Holiday recess, there are two `Short Debates’, limited to two and a half hours each. The right to initiate such debates is confined to backbenchers and crossbenchers and the subjects for debate are chosen by ballot.
iii) The revision of Public Bills brought from the House of Commons.
Thirdly, and perhaps most importantly, the House acts as a revising chamber for Public Bills brought from the House of Commons. About one half of the time of the House of Lords is devoted to the consideration of Public Bills. The majority of this time is spent on revising Bills which have already passed the Commons, where the great majority of government legislation is introduced. The House of Commons does not have the time to fully debate all the legislation it has to pass each session and the use of procedures for the curtailment of debate, such as the guillotine, often means that Bills are passed by the Commons without really being considered at all. A second chamber is therefore required to examine and revise such Bills. If the second chamber is abolished then the procedures of the House of Commons for enacting legislation will have to be changed if the present standard and volume of legislation is to be maintained. This could be achieved by membership of the House of Commons becoming fulltime and by making even more use of committees. However, even then the volume of legislation may still prove to be too great, necessitating either a shortening of the procedure by which a Bill is enacted or making more use of subordinate legislation, which some would argue is already over used as it is. Certainly some fundamental changes would have to be made to the proceedings of the House of Commons and these may prove unacceptable to many of the present MPs.
The House of Lords serves a valuable purpose in scrutinising Bills passed by the House of Commons, with about one half of the time of the House of Lords devoted to the consideration of, Public Bills. This process is especially important because, unlike the Commons, the Lords have nothing corresponding to the guillotine and there is therefore no effective machinery for curtailing debate. Also the Lords have no provision for the selection of amendments for debate and therefore all amendments tabled may be debated. To some extent the House of Lords can compensate for inadequate scrutiny of legislation by the House of Commons. The powers of the House of Lords to prevent the wishes of the House of Commons are, of course, limited by the provisions of the Parliament Acts 1911 and 1949, under which certain Public Bills may be presented for the Royal Assent without the consent of the Lords: see the War Crimes Act 1991.
iv) The initiation of Public Bills.
The House of Lords does not stand idle at the start of a parliamentary session waiting for legislation to work its way up from the House of Commons. Bills which are relatively uncontroversial in party political terms have been introduced in the House of Lords with a fair degree of regularity. These include the Wildlife and Countryside Bill (1980-81 Session), the National Heritage Bill, Data Protection Bill and the Health and Social Services and Social Security Adjudications Bill (1982-83 Session). By convention all Consolidation Bills (Bills which do not alter the law but replace a number of Acts dealing with a particular subject by a single Act) and most Bills to give effect to changes in the law proposed by the Law Commissions, are introduced in the Lords.
Unlike members of the House of Commons, members of the Lords are free to introduce Private Members’ Bills into the House and there is usually sufficient time for them to be debated. However if they are passed there is no guarantee that time will be found for them in the House of Commons. The fact that the Lords have no constituents makes it easier for them to discuss measures proposing controversial changes in the law in this way. The Lords thus played a significant part in reforming the law relating to homosexuality and abortion.
v) The consideration of subordinate legislation.
Their Lordships also contribute to the scrutiny of delegated legislation. The powers of the House of Lords over delegated legislation were not curtailed by the Parliament Acts and are therefore the same as those enjoyed by the House of Commons. When a resolution of each House approving the instrument is required, the House of Lords always has an opportunity to debate the instrument. In the case of negative instruments, any member may move a motion to annul the instrument and while in the Commons time often cannot be found to debate such motions, in the Lords there is no such difficulty.
vi) The scrutiny of the activities of the executive.
The government departments will have representatives in the House of Lords who can be questioned about policy by peers in the same way that ministers can be questioned in the House of Commons. there may not be a debate. ‘Unstarred questions’ are taken at the end of business. The Lord asking the question makes a speech, and a debate may take place before the minister makes his reply, which concludes the proceedings. Private notice questions may be asked on matters of urgency. It is for the Leader of the House or as a last resort for the House itself, to decide what constitutes a matter of urgency. The process of question time in the House of Lords therefore provides a valuable adjunct to the procedure in the House of Commons.
vii) The scrutiny of private legislation.
c) House of Lords’ reform
Proposals for reform
The House of Lords Act 1999 represented the first stage of reform. The government established a Royal Commission, chaired by Lord Wakeham, to make recommendations for further reform. The Commission recommended in 2000 that the Upper House, having around 550 members, should comprise a majority of nominated members and a minority of selected or elected members representing regional interests. The white paper published in November 2001 stated, aim was to reduce the size of the House from 700 to 600 members over ten years, with 120 members directly elected and up to 332 members nominated by party leaders, with 120 non party (independent) members being chosen by the independent appointments commission. The number of bishops would be reduced to 16 from 26.
1) In relation to composition, three options were put forward.
Model A provided for 65 members selected by dividing up a regional allocation of seats according to each party’s share of the vote in that region at general elections, with one third of the regions selecting regional members at each general election. (this would achieve a House which is in part indirectly elected: the balance of members would be appointed by the statutory Appointments Commission).
Model B, supported by a majority of the Commission, proposed 87 members, directly elected at the same time as the European Parliament elections under a system of proportional representation.
Mode) C provided for 195 regional members directly elected at the same time as the European Parliament elections.
2) The powers of the second chamber would remain broadly as they are at present, with the second chamber being able to delay, but ultimately not to defeat primary legislation. The report recommends in relation to secondary legislation, the second chamber should be given power to delay their implementation and to voice its concerns. The power to defeat secondary legislation – which in practice is never used – would be removed.
3)On the system of nominations for the House, the Commission recommended that an independent Appointments Commission be established. The Commission would have eight members: three nominated by the main political parties, one nominated by crossbenchers (independents), and four independents, one of whom should be chairman or woman.
4)Establishing the Commission would sever the link between the granting of honours and the political patronage of the Prime Minister and government. Members of the House of Lords – the new name for which the Commission did not decide – would not be known as ‘peers’. The current system of granting of honours would remain, but would not result in membership of the House of Lords. The granting of a peerage is therefore no longer to be a precondition for membership of the second chamber. The remaining hereditary peers will cease to be entitled to sit and vote once the regional members join the second chamber. Hereditary peers will, however, be eligible to seek nomination as regional members or apply for appointment by the Appointments Commission. Regional members would serve for the equivalent of ‘three electoral cycles’ and appointed members should serve for a fixed 15-year term. The earliest the new system for regional members would operate would be 2004. The Commission recommended that existing life peers appointed before the publication of the report who wish to remain in the second chamber should be deemed to have been appointed for life, whereas life peers appointed between the publication of the report and the necessary legislation implementing the report’s recommendations should be deemed to be appointed for a 15-year term from the date of the award of the life peerage
5) The Commission will be under a duty to maintain balance in the composition of the House of Lords. The Commission should ensure that at least 20 per cent of the members are not affiliated to one of the major parties; it should be under a statutory duty to ensure that a minimum of 30 per cent of new members are women, with the aim of gradually achieving gender balance within the House.
6) It should also be required to attempt to ensure a representative level of membership from ethnic minority groups, and appropriate representation for all religious faiths
7) On remuneration, the Commission recommended that the financial arrangements be adequate to make regular attendance economically viable, and that remuneration should be linked to attendance in Parliament. However, payments made for time and lost income should be less than the basic salary of a Member of Parliament over an average session.
Criticism of the reform Proposals
I)the Wakeham Commission Report does foresee a second chamber with at least the same powers as the current House of Lords, and one which is broadly representative of British society.
2)In breaking the link between peerages and membership of the second chamber, the Commission has removed one of the most contentious aspects of the political honours system, in which membership of the second chamber is seen to be conferred for political services to the governing party.
3) Instead, the Commission seeks a second chamber which ‘should be authoritative, confident, and broadly representative of the whole of British society’, and whose members should have a breadth of experience outside the world of politics, skills and knowledge relevant to the careful assessment of constitutional matters. The Commission stated that its intention was to recommend proposals which were not only ‘persuasive and intellectually coherent but also workable, durable and politically realistic’.
1) The report’s recommendations are far removed from the aspirations of those seeking a democratically elected second chamber. That radical option foundered on the problem of the constitutional balance of power between two elected chambers, and the fear – which has always dogged reform of the House of Lords – that the Commons might lose its supremacy.
The issues which require careful evaluation include the following:
I On what basis should such a chamber be elected? Should it be on a regional basis, or on the same basis as the present House of Commons constituencies?
2 What voting system should be adopted? If it is to be the ‘simple majority system, the second chamber would be as ‘undemocratic’ as the first chamber. If it is to be by way of proportional representation, ‘the upper chamber would arguably be more democratic than the House of Commons, unless reforms were also to be introduced there.
3 If the second chamber were elected, what is the correct constitutional role of that house? Should the Parliament Acts remain in force, thus curtailing the legitimate right of the Lords to veto legislation? Should the Lords have co-equal powers with the Commons? If so, there could be political deadlock over a number of issues.
4 What role, if any, would current members of the Lords have? Is it realistic to expect current members to stand for election? Would not much be lost by removing many of the working peers from the Lords?
5 Should the House of Lords comprise a mixture of elected and appointed members? Note that by Spring 2004 no Bill had been introduced to effect further reform.
The government signaled its acceptance in principle of the Commission report. A Joint Committee of both Houses of Parliament is to consider the reform options.
The House of Commons Introduction
The House of Commons is the democratically elected chamber of Parliament, which also comprises the Crown and the House of Lords. The House of Commons is the principal forum for the introduction of legislative proposals – bills – which must be passed by the Commons and Lords and receive the Royal Assent before they become Acts of Parliament and hence law. The Prime Minister and the majority of government Ministers sit in the Commons and it is the House of Commons which has the principal role in scrutinizing government policy and administration.
At the beginning of each Parliamentary session, the Monarch opens Parliament with a speech from the throne, which outlines the Government’s main proposals for the session. The programme will have been carefully considered by the Cabinet that decides on a timetable for the introduction of legislation. The details of this task are entrusted to the Future Legislation Committee of the Cabinet which has to cope with a flood of requests from the various Departments of State who all wish to have their proposals included.
The preparation of legislation is often a lengthy process. The content and policy of the Bill must be approved by the appropriate, cabinet committee and then by the full Cabinet. Reform may some times be preceded by Green or White Papers allowing pre-legislative consultation in Parliament. Consultation will also take place with various interest groups. By the end of this pre-legislative stage the main content of the Bill is effectively settled although further negotiations between the various interested parties continue throughout the passage through Parliament.
Responsibility for drafting the Bill is with the Parliamentary draftsman officially known as Parliamentary Counsel to the Treasury their draft is scrutinised by the Legislation Committee of the Cabinet. The Lord Chancellor’s Office and the Law Officers are also likely to examine the Bill to consider such matters as the proper legal wording and the practicalities of implementation.
Composition of the House of Commons.
The House of Commons comprises 659 elected Members of Parliament, each representing one electoral area, or constituency. General elections, which determine the political composition of the Commons, must be held at least every five years. Following a general election, the leader of the political party that has won the majority of seats in Parliament automatically becomes the Prime Minister and is formally appointed by the Crown. The Prime Minister then appoints Ministers to represent government departments and to take responsibility for their work. As we explained in Chapter 8, approximately 22 Ministers will be appointed to the Cabinet – the inner core of government – and approximately 90 other Ministers who are outside the Cabinet will sit in the Commons. In addition, Ministers in the House of Lords represent the government.
Members of Parliament who are not appointed to senior positions within their political parties are known as ‘backbenchers’. They are required to support their political party and the disciplinary procedures within the House are designed to ensure that Members of Parliament are present to vote when required for party policy.
Two political parties – the Labour Party and Conservative Party – have dominated Parliament for many decades. At the time of writing the second largest opposition party is the Liberal Democrat Party, and other minor parties are also represented in the Commons. The constitutional role of the main opposition party – formally referred to as ‘Her Majesty’s Loyal Opposition’ – is to challenge the government of the day and ensure its accountability to the people through Parliament. The opposition party is structured in the same way as government – having its own inner core of members and other ‘shadow’ Ministers; it acts as a ‘government in waiting’. The government can only continue in office for as long as it commands the support of the Commons. If the government loses parliamentary support the opposition may force the government out of office, whereupon a new general election will take place to determine the next holders of governmental office. The opposition parties are allocated 20 days per parliamentary session on which they dictate the subject matter for debate.
The Speaker of the House of Commons
The Speaker of the House of Commons is an elected Member of Parliament who, once elected to the office of Speaker, relinquishes his or her party political allegiance and acts as the neutral ‘chair’ of proceedings in the House. It is the Speaker who controls debates and rules on procedures. The Speaker also has disciplinary powers.
Each political party has procedures for communicating between the leadership and its members, and for enforcing support from its members. The whips are Members of Parliament appointed for this purpose. The two main parties each appoint approximately a dozen whips. Members of Parliament are frequently required to vote in support or in opposition to government business. The parliamentary papers for the forthcoming week indicate when Members are required to attend the House by the underlining of differing matters on the agenda. A ‘three-line whip’ indicates that a Member of Parliament must be present, and failure to attend may result in disciplinary proceedings being taken. Note that the whips are agents of a political parties, and not of Parliament itself.
the parliamentary timetable
Each parliamentary year – or session – usually runs from November to the following October, with the annual session formally started by the attendance of the Queen in the House of Lords and the delivery of the Queen’s Speech, which outlines the government’s policies and legislative proposals for the forthcoming session. The majority of government bills will be presented to Parliament in the early months of the session with a view to their becoming law by the end of the session. (Parliament goes into recess at Christmas, Easter and during the summer.) The government controls the timetable.
The passage of legislation
Acts of Parliament
An Act of Parliament – or statute – is the highest form of law. Once enacted by Parliament it cannot be declared invalid by the courts, and in general only another Act of Parliament can change the law. Once the government has adopted a policy a formal bill is drafted and then presented to Parliament. Four types of bills may be presented to the House, each of which has its own procedures. Our principal focus is on the passage of public bills, but attention should also be paid to Private Members’ bills (see Barnett, pp. 480482).
Bills are scrutinised by Parliament at second reading, which generally takes place in the Chamber of the Commons. At second reading the general principles of the bill are debated and approved or rejected. Once approved the bill will be sent to a Standing Committee for detailed scrutiny and amendment, and is then reported back to the Commons for final approval. Once approved, the bill is sent to the House of Lords for scrutiny and approval. You should pay close attention to the question of scrutiny of bills, noting that there are several drawbacks to the procedures. Two main factors contribute to inadequate scrutiny in the Commons:
The first relates to the dominance of the government: where the government has a strong majority in the Commons – this will be reflected in the membership of Standing Committees
The second relates to the shortage of parliamentary time, and procedures – most significantly the Allocation of Time Motion (or Guillotine) which cuts scrutiny short at a particular date, irrespective of the whether the bill has been fully debated.
a) The legislative process
i)A distinction must be drawn between Public and Private Bills:
• Public Bills seek to alter the general law and affect the whole community.
• Private Bills affect only a section of the community and relate to matters of individual, corporate or local interest.
• Hybrid Bills are Public Bills that are classified by the Speaker as having a particular effect on one section of the community.
ii) Public Bill procedure
Most Public Bills are government Bills, but some may be Private Members Bills introduced by backbench Members of Parliament. Bills may be introduced into either House, but legislation which is politically controversial, financial or electoral begins in the House of Commons.
iii) Private member’s Bill procedure
There are a number of procedures under which private members may initiate Bills.
• The Ballot: The Ballot establishes an order of priority enabling those members successful in it to use the limited private members’ time for debate of their Bills ‘ which, given the governments’ control of the parliamentary timetable, might otherwise not make progress.
• The Ten Minute Rule: Not, in general, serious attempts at legislation. The member may speak briefly in support of the Bill and an opponent may reply. The House may then decide on whether the Bill should be introduced.
• Standing Order No 39: Allows every member the right to introduce a Bill of his choosing after due notice.
iv) Private Bill procedure
Private Bills are initiated by petition from persons or bodies outside Parliament. Full notice must be given to those whose legal rights may be affected by the proposed legislation so that they may oppose it. In the House of Commons the Bill is introduced by being presented at the Table by the Clerk of the Private Bill Office. It is then deemed to have been read for the first time. At the Second Reading Debate, the House determines whether the Bill is unobjectionable from the point of view of national policy. If read a second time, the Bill is committed to a committee of four members in the Commons (or five members in the Lords). The committee stage has some of the features of a quasi judicial proceeding.
v) Hybrid Bill procedure
The Standing Orders for private business apply to a hybrid Bill so that if opposed after its second reading it goes before a select committee, where those whose legal rights are affected by the Bill may raise their objections and petition against it. After the petitioners have been heard by the select committee, the Bill then passes through its committee stage and later stages as if it were an ordinary Bill.
Procedure for the passing of a Public Bill introduced by the Government into the House of Commons
1.first Reading. A purely formal stage.
The title of the Bill is read out, an order is made for the Bill to be published and a date fixed for the second reading.
The principles of the Bill are discussed on the floor of the House. The Bill is voted on.
A detailed clause-by-clause analysis of the Bill by a standing Committee of between 16-50 MPs. Detailed amendments are considered
The Bill is reported back to the whole House as amended. Further amendments usually government sponsored, can be made at this stage
Once again the whole House considers the principles behind the legislation. Only verbal amendments can be made and any debate must be supported by at least six members.
Once a Bill has passed its Commons’ stage it goes up to the House of Lords where the same process is repeated, except that the Committee stage is taken on the floor of the House. If the Bill is amended in the House of Lords, these amendments must be considered by the Commons. Often these amendments are tabled by the Government and so there is no problem in ensuring that the Commons will approve them. If, however, the amendments are rejected by the Commons, the Lords must decide whether to continue with these. If no agreement is reached before the end of the Session, the Bill will fail. The Government must then decide whether to reintroduce the measure in the following session and invoke the provisions of the Parliament Acts 1911-49.
Once the Bill is passed by both Houses it receives the Royal Assent. This is purely formal. After the Royal Assent has been given the Bill becomes an Act.
Variations on this procedure
1. Bills may start life in either House. The Government must try to arrange its business to ensure that the Commons does not have all its work at the beginning of the session and the House of Lords has all its work at the end. Generally less controversial Bills, e.g. technical legal Bills are selected to start life in the Lords, high profile political Bills in the Commons. As the House of Commons has sole responsibility for financial matters, it has to carry the burden of the work on financial Bills.
2. Some Bills have their Second Reading Stage in Committee. This is on the motion of a minister but can be prevented 11 ’20 members object. This procedure was introduced in an attempt to save time on the floor of the House and is used for unopposed and non-controversial legislation. If the Second Reading is in Committee, the Report Stage will also be in Committee.
3. Some Bills have their committee stage on the floor of the House in the Commons. This procedure can be used for:
(a) Non-controversial Bills where the committee stage would be purely formal;
(b) Bills of major constitutional importance where all members wish to be involved at every stage;
(c) Bills passed in an emergency;
(d) Major clauses of Finance Bills. In these cases Committee and Report Stages will be combined
HOUSE OF COMMONS
q1 – Critically evaluate the current practices and procedures by which the House of Commons scrutinises and approves government Bills.
First reading- Bill published
Second reading (Debate-Role of minister- Party loyalties- HRA 1998)
Committee Stage (Party divisions -Lack of expertise- Limitation on time for consideration) Report stage
Consideration of reform proposals
1 This question requires an examination of the processes of the HC in scrutinising and approving government Bills. The procedure by which the HC scrutinises government Bills essentially comprises five stages: the first reading, the second reading, the committee stage, the report stage and the third reading.
2 The first reading is largely ceremonial. A ‘dummy’ copy of the Bill is placed ‘on the table’ in the HC on the day of presentation. When the moment of presentation is reached, after Questions, the Speaker calls the sponsoring minister and the Clerk reads the short title of the Bill and the minister, or a whip acting on his behalf, names a (notional) day for the Bills second reading. No debate takes place at this stage. Once the first reading procedure is complete the Bill is printed and published. To encourage more informed debate at an earlier stage most government are now published with accompanying guiding notes. These are designed to assist the lay person (which for these purposes may include a good many backbench MPs) in understanding the purposes and effect of the Bill.
3 Wherever possible the government aims to have two weekends between the printing and second reading of a Bill. The second reading is the stage at which significant parliamentary scrutiny of legislative proposals becomes possible. The House considers the principle and merits of the Bill and a vote is taken on whether to give the Bill a second reading. Although the opposition will seek to score parliamentary points in the course of debates, the outcome of the second reading will hardly ever be in doubt. It is rare however for a government Bill to be denied a second reading. The government after all by definition has the majority of seats in the HC. Its MPs will be subject to the party whip in order to get the legislation through. Defiance of the party whip can mean a long wait for any hope of political advancement. It may even result in a backbench MP being cast out into the political wilderness. Real scrutiny of the legislation at this stage is unlikely to occur. It should be noted, however, that under s.19 of the HRA 1998 the minister in charge of a Bill is under a duty to make a statement, prior to the second reading, to the effect that in his view the provisions of the Bill are compatible with the ECHR as protected by the HRA 1998. Alternatively, he must make a statement ‘explaining that, although he is unable to make a statement of compatibility, the government nevertheless wishes the House to proceed with the Bill. This at least draws the attention of the House to a specific matter of importance.
Following its second reading, a bill is normally referred to a standing committee consisting between 16 and 50 members nominated by a committee of selection and reflecting party strength in the House. Standing committees are consulted to deal with Bills as and when necessary. The committee stage involves detailed clause-by-clause consideration of the Bill and the committee may generally amend the- Bill as it thinks fit, provided that the amendments made are relevant to the subject matter of the Bill. Amendments and new clauses may be moved by the minister, the opposition spokesmen, or by any member of the committee. Provision also exists for non-party political Bills to be referred to special standing committees, where a more informed discussion can take place and evidence can be taken, but this procedure has only rarely been used, not least because of the delay that would ensue in the passage of the legislation.
5. Bills of first-class constitutional importance, those requiring a very rapid passage, and certain financial measures, including at least part of each year’s Finance Bill, are often referred to a committee of the whole House enabling all MPs to engage in more detailed scrutiny. When a Bill has completed its committee stage it is reported as amended to the whole House. Further amendments, alteration of amendments made by the committee, and new clauses, may be made at this stage. All members may speak and vote at this stage, unlike in a standing committee. The final HC stage of the Bill is the third reading. The bill is debated once more in general terms with only verbal amendments allowed. Except for Bills of major political or constitutional importance the third reading is usually brief and formal.
6. One of the major problems with the whole process of scrutiny is the control exerted by the executive over the HC. As indicated above the government will enforce the party line through the whips’ office to ensure legislation is carried, regardless of what contributions are made in the course of the debate. The bigger the government’s majority the more this is the case. Whereas select committees are powerful because they involve MPs from all parties working together to scrutinise the performance of government departments standing committees are weakened because membership divides along party lines. A further problem is that of expertise and resources. The second reading looks at the ‘big picture – scrutiny at that stage is not going to persuade the government to abandon a piece of legislation. The committee stage is designed for examination of close detail. The government might take on board amendments at this stage- but this assumes MPs have the requisite experience and knowledge to move amendments on very technical points. Given the preponderance of academics and lawyers in the HC this is highly questionable.
7.The government can also use its voting power in the HC to introduce measures that limit the time for debate and consideration of amendments. The term ‘guillotine motion is a colloquial expression for an allocation of time motion. The purpose of such a motion is to provide that one of more stages of a bill be disposed of either by a fixed date or by a Fixed number of sittings of the House, or a committee, or both. Each guillotine motion is specific and devised by the government for the particular bill or bills to which it applies. If a bill before a standing committee is the subject of an ‘allocation of time order’, a detailed timetable is recommended to the standing committee. The effect of the order is that at the end of each allotted period the part of the Bill in question is voted upon forthwith, although substantial parts of the bill may not yet have been discussed at all.
8. On the whole, these devices are unpopular with parliamentarians because they can restrict valuable criticisms and amendment of legislation. If used extensively- and they are being used increasingly- it can be argued that they deny the legislative role of Parliament. The problem lies in striking the balance between ensuring adequate opportunity for debate and ensuring the opposition does not use the debate simply to try and ‘talk out’ bill.
9.The House of Commons Modernisation Committee, in its report published in July 1997, confirmed that the proceedings of standing committees were often devoted to political partisan debate rather than constructive and systematic scrutiny. It observed that the role of government backbenchers on standing committees was to remain silent and to vote as directed. the result of these tactics is that important sections of Public Bills sometimes receive little or no scrutiny at the committee stage because of the imposition of time allocation orders (i e ‘the guillotine) which bring deliberations to an end at a specified point in time.
10.The report suggested a number of reforms, including proposals that all members of should be provided with notes on clauses produced at the time of presentation of bill; that clauses should be considered as a whole, before amendments, so as to isolate points of agreement and criticisms and that more time should be made available for deliberation by permitting standing committees to meet during the parliamentary recess.
11 The committee further suggested that scrutiny of government bills in the HC could be improved if there was more systematic consideration of draft bills prior to the first reading, rather than government ministers presenting draft legislation to the HC as a fait accompli, resisting any proposals for significant change for fear that this might be taken as evidence of political weakness.
12. The report concluded in favour of pre-legislative scrutiny by a committee of the HC but was not specific as to what form the committee should take.
Overall the quality of the scrutiny of government bills by the HC is inevitably limited by a number of factors, including the control exerted by the executive and the time available for debate. The paradox is that the greater the government’s majority, the greater the need for scrutiny Governments with large majorities are perhaps more tempted to push through radical measures. A government with a small majority is likely to tailor the contents its Bills before they are even published so as to take account of likely oppositions and improve the chances of enactment.
Not all the detailed rules regulating a particular matter will be contained in Acts of Parliament. Instead, Parliament delegates the task of drafting detailed rules to government Ministers, local authorities and other public bodies. Central government delegated legislation includes Orders in Council made by the Queen in Privy Council and Regulations made by Ministers. Local authority delegated legislation takes the form of bye-laws. These laws are known as delegated or secondary legislation. Their authority comes from the enabling, or parent, Act. Delegated legislation is only valid if its subject matter falls within the power conferred by the parent Act. Parliament scrutinises delegated legislation, but the scrutiny is less in-depth than for bills. If delegated legislation falls outside the power granted by Parliament, a challenge might be made by individuals who are affected by the legislation and the courts will rule on whether the delegated legislation is intra vires (within the power granted and valid) or ultra vires (outside the power granted and invalid).
Not all legislation is made directly by Parliament. Government ministers, local authorities and other public bodies have been given the power by statute to make subordinate legislation. This may be in the form of statutory instruments and orders, byelaws, regulations and orders in council. The most important type of delegated legislation made by a minister is a statutory instrument. This is defined and regulated by The Statutory Instruments Act 1946. Delegated legislation made by a minister acting under statutory authority which does not fall within this definition, is known as a statutory order. There is no more precise definition, as it is simply a residual category. Statutory orders are not regulated by the 1946 Act.
Uses of delegated legislation
Delegated legislation is used mainly to add detail to primary legislation that may lay down the general principles although matters of considerable importance are sometimes dealt with in this way. The use of delegated legislation saves Parliamentary time:
(a) Parliament can concentrate on the principles and ignore the details, which can be worked out elsewhere.
(b) If the law requires updating this can be done: without taking up time on the floor of the House.
It can also be said that the use of delegated legislation is desirable:
(a) It allows certain flexibility in the law. It enables the minister, for example, to bring sections of an act into effect as and when required. It allows for regional variations. It even allows for a degree of experimentation in that the delegated legislation can be used to alter provisions in the parent act.
(b) It facilitates full consultation with experts. Consideration of detailed, technical, legislation in the contentious atmosphere of the floor of the House cannot be desirable.
But it does have its dangers, particularly when used to effect changes of substance. Then it can be argued that too much power is being concentrated in the hands of the minister. The procedure is much less public than that for the passage of Acts of Parliament. Clearly it is essential that, to prevent abuse, there is adequate control.
Control over delegated legislation
The enabling Act.
The law-making power which Parliament intends to delegate should be expressed in clear and unambiguous language. The grant of wide discretionary powers makes it much more difficult to control the exercise of these powers by means of the doctrine of ultra vires. The enabling Act also determines the form in which the power is to be exercised. Greater control will be achieved by providing that the power is to be exercised by way of statutory instrument. It will then be regulated by the Statutory Instruments Act 1946 and will, if laid before Parliament, be subject to the scrutiny of the joint Committee on Delegated Legislation.
In the British Parliament today, are a government’s backbenchers its most effective opposition?
What can the backbencher do? He is under the control of the party whips, to the extent that they will try to ensure that MPs will turn up and vote when needed and will perform such parliamentary duties as are required. Most of the time, most MPs obey the whips. Ambitions of joining the front benches will soon be frustrated if an MP takes too independent a line, but, that apart, most of the time MPs willingly follow the party line.
The whips also convey to the party leaders the feeling amongst the backbenchers. These feelings are more directly conveyed by backbench groups. For example, the Conservative 1922 Committee is quite capable of taking ministers, even the Prime Minister, to task over their policies. During the last Conservative administration the Chairman of the 1922 Sir Marcus Fox, a former whip, was effectively the spokesman for the Conservative backbenchers and any Conservative Prime Minister faced with contentious legislation must first ensure he has the 1922 on his side. Faced as he will be with unanimous opposition from the other parties, he needs to rely on his own members and these unofficial channels will tell him whether this support will be provided.
There are, of course, plenty of opportunities within House of Commons’ proceedings, short of voting against the government, by which a backbencher can make his voice heard. Parliamentary questions – both oral and written – are one such opportunity. Another would be through participation in parliamentary committees. To some extent, the selection process will ensure that maverick MPs are kept away. However, the select committees have shown themselves quite capable of confronting government policies and criticism may well come from the government’s backbench members as, for example, in the Select Committee on Defense during the ‘ Westland Affair’ (1986). In other words, their loyalty to the government does not prevent them from taking a critical stance. The government is not directly threatened by that stance and yet its source probably makes the criticism more effective.
A further opportunity for the backbencher will be during debates. During Mrs Thatcher’s premiership the most significant backbench speeches came from those she had just removed from the front bench. Sir Geoffrey Howe’s speech shortly after his departure, is a good example. If such a speech voices opposition and if others share that view then it is obviously of greater significance than the inevitable opposition from the other side of the House.
In conclusion it should be said that most politicians are ambitious; none would want to see their own government defeated. These two factors limit the extent of backbench opposition. Further, MPs are answerable to their constituents who might take a dim view of opposition. A government may not wish to call the backbencher’s bluff, but the backbencher certainly does not hold all the cards.
Parliamentary procedures provide adequate opportunities for backbenchers to scrutinise government policy.’
Do you agree?
1.Scrutiny of government administration
It is a fundamental requirement of the rule of law and doctrine of constitutionalism that the government should be fully accountable to the elected representatives of the people, and that government should command the support of Parliament and the electorate. Accountability can only be a reality if the procedures exist for adequate scrutiny. There are three principal means by which backbenchers can scrutinise government policy: first, through questions asked of ministers at Question Time; secondly, in general or specific debates in the House of Commons; thirdly, through cross ‘ examination of ministers appearing before select committees.
A. Question time
The effectiveness of Question Time as a means of scrutiny of ministers by backbenchers is limited by a number of factors. Generally, the backbencher is no match for the minister with his Civil Service brief. When a parliamentary question is submitted it is passed immediately to the relevant government department, and the officials in that department will give priority to preparing a brief for the minister enabling him to answer not only that question, but also any supplementary questions that the officials anticipate. The department knows by whom the question is asked and in preparing the brief will bear in mind the interest and concerns of the questioner and other MPs who are similarly interested and likely to put supplementary questions. Ministers rarely gain or lose in reputation at Question Time. Most of them can cope quite satisfactorily with it, having risen through the House themselves. Often a minister will deal with a question simply by a party gibe, stonewalling or evasion.
Question time is not a spontaneous affair and it should not necessarily be criticised on that basis. Members wishing to ask questions are required to give a minimum of two sitting days’ notice, and a , maximum of ten days’ notice. This time span for notice is designed to ensure that there is both adequate opportunity for Ministers to prepare answers and that the issue being raised is still fresh and relevant. The number of questions which an individual Member of Parliament may have pending at any one time is eight during a period of 10 sitting days and no more than two on any one day.
The rules concerning questions have been developed over time by the Speaker of the House, who is responsible for enforcing them. Only questions on matters, which are directly within a Minister’s responsibility, may be put.
i) Questions posed to ministers
Approximately once a month each Minister will answer questions put by Members of Parliament on matters for which he or she is responsible. It is to be noted that while few oral answers are given, because of shortage of time, all questions receive an answer, either oral or written, and all answers are recorded in the Official Journal of the Commons.
(ii) Questions posed to prime minister:
Prime Ministerial question time takes place once a week (Wednesday) for 30 minutes. Questions put to the PM may relate to aspects of government policy. Frequently, questions put to the PM will simply request that the PM ‘list his engagements for the day’. The purpose of this form of open question is to avoid the possibility that the PM will simply refer the questioner to another Minister with responsibility for the particular matter. The open question therefore provides a neutral peg on which to hang the supplementary, and real, question. Once the PM has answered that initial question, a ‘supplementary’ question will follow which may concern any matter for which the PM carries responsibility or matters which do not fall within any individual Minister’s responsibility. If, however, a question is addressed to the Prime Minister, which should be addressed, for example, to the Secretary of State for Social Security, the Prime Minister will decline to answer and suggest that the matter be referred to the responsible Minister. The strength of PM’s question time lies in the lack of notice given and the need for the PM to demonstrate his/her competence across the full range of government policy.
iii) A private notice question:
A private notice question is an oral question put to a Minister without the need to observe the normal tice. Standing Orders define private notice questions as raising matters, which are of an urgent character. Private notice questions enable a matter of urgency to be raised for immediate discussion in the period. Following question time. Because private notice questions take priority over other parliamentary business, rules provide that a member who wishes to put such a question must give notice to the Speaker before noon on the day s/he seeks to put the question; the Speaker has absolute discretion as to whether to allow or disallow the question to be put. Many applications for a private notice question are made, but few are granted – approximately one per week.
Strengths and Weaknesses of Question Time as a method of scrutinising – Questions can be a very effective way of embarrassing ministers including the PM. Robin Cook suffered over the Sierra Leone affair from tough questioning in the Commons, and Mrs. Thatcher said in her memoirs she considered resigning over the Westland affair in 1986. But the fact is she did not and neither did Robin Cook who blamed his civil servants. No one resigned over the Arms to Iraq affair despite a damming report on the Tory administration by Sir Richard Scott. The convention of ministerial responsibility in the individual sense has become politicised in as much as it depends more on the political support for the particular minister.