What factors determine the primacy of the House of Commons in Parliament?

Parliament is made up of three constituent parts: the House of Lords, the House of Commons and the Crown-in-Parliament. Traditionally, the House of Lords and Crown were the dominant institutions in Parliament. Firstly, this was because Parliament only sat on the say so of the monarch. For example, when Charles I recalled Parliament in 1640 it was the first Parliament to sit in eleven years.

In 1642 Charles I entered the House of Commons and tried to arrest five of its members.

The House of Lords developed from the Medieval ‘Great Council’ that advised the monarch on matters of state. It was made up of nobles and churchmen. The House of Commons developed in the 13th and 14th centuries and was made up of representatives from the boroughs and shires of England.

The House of Lords remained undoubtedly the dominant House of Parliament until the Great Reform Act of 1832. After this, the trajectory of the powers of the two houses altered, with the Commons increasing and the Lords on the decline.

At the State Opening of Parliament Black Rod (the Queen’s Representative) ceremonially has the door of the House of Commons slammed in his face. This is designed to portray the independence of the House of Commons.

Today, although the House of Lords is called the ‘Upper Chamber’, the House of Commons is undoubtedly the dominant house. There are a number of reasons for this:

1. The Parliament Acts

Between 1909 and 1911 a constitutional crisis emerged over the refusal of the House of Lords to pass Chancellor David Lloyd George’s ‘people’s budget’. The crisis eventually ended with the passing of the Parliament Act (1911). This act removed the power of the House of Lords to block legislation and limited it to delaying legislation for two years. In 1949 the delaying power of the House of Lords was reduced to just one year. This means that if the House of Commons passes the same act for two consecutive parliamentary years, they can use the Parliament Act to bypass the House of Lords. The Parliament Act has only been used on four occasions:

War Crimes Act (1991) – This allowed UK courts to try suspected crimes committed on behalf of Nazi Germany during the Second World War.

European Parliamentary Elections Act (1999) – This changed the voting system used in European Parliamentary Elections in the UK from First Past the Post to the D’Hondt method of proportional representation.

Sexual Offences (Amendment) Act (2000) – This equalized the age of consent for homosexual sex with that of heterosexual sex .

Hunting Act (2004) – This prohibited the use of dogs in the hunting of wild mammals (especially foxes).

Even though it has only been used four times, the very existence of the Parliament Act means that the House of Lords is likely to back down rather than risk the Act being imposed by the House of Commons, meaning its existence is extremely significant. 

2. Financial Privilege

An important parliamentary convention between the two houses is that the House of Commons is solely responsible for financial matters. For example, each year the Chancellor of the Exchequer presents his Budget. This outlines how the government is going to spend and raise money for the year. By convention, the House of Lords do not vote against the Budget.

In 2015 the convention was severely tested when the House of Lords voted against a government motion to cut tax credits. They justified this by saying they had voted against a statutory instrument and not a bill and therefore the financial privilege convention did not apply. Although this was technically correct, the House of Lords were clearly pushing constitutional boundaries in their actions.

The then Chancellor, George Osbrone, was incredibly critical of the House of Lords for rejecting the Tax Credits cuts he planned.

3. The Salisbury Convention

The Salisbury Convention dictates that the House of Lords does not vote against any bill that formed part of the government’s election manifesto. The reason for this is that if a bill formed part of a government’s election manifesto it is reasonable to believe that the passage of that bill is the expressed wish of the electorate. The Salisbury Convention was particularly important in the passage of the House of Lords Act (1999). This act removed all but 92 hereditary peers from the House of Lords and would almost certainly not have passed had the convention not existed.

The Salisbury Convention is complicated by the factor of Hung Parliaments. For example, in May 2010 no one party won the election and therefore no party could claim clear mandate from the electorate. A Coalition Government was formed between the Conservatives and Liberal Democrats. To enable this to happen, a Coalition Agreement was made between the two parties that merged their policies to create a compromise agreement. The Coalition Agreement was never put to the voters, so therefore the Salisbury Convention did not apply.

The Coalition Agreement was made after the 2010 General Election and its plans were therefore not subject to the Salisbury Convention.

Currently, the Conservatives are in government due to a Confidence and Supply agreement with the DUP. This is because the Conservatives only won 318 seats in the 2017 General Election and therefore not enough for a majority. Similarly to 2010-2017, the Salisbury Convention cannot be reasonably expected to apply because the governing party has not received a clear mandate from the electorate.

4. Reasonable Time Convention

An important convention that exists in the House of Lords is that Government business will be considered in “reasonable time”. The Government largely controls the business of the House of Commons and can therefore ensure that their business is prioritised. However, the Government’s control of the House of Lords is much less significant. By convention the Lords agree not to unreasonably delay Government business.

5. Secondary Legislation

Secondary Legislation is law created by the Government under the auspices of a bill that has previously been passed by Parliament. Secondary Legislation is essential in the carrying out of government functions as Parliament would not have time to debate and vote on every single governmental issue that needs clarification. For example, Secondary Legislation under the Misuse of Drugs Act (1971) might add a new drug to the proscribed list of substances. The most common form of Secondary Legislation are Statutory Instruments. Around 3,500 of these are passed every single year.

Although Secondary Legislation is scrutinised by the House of Lords, by convention it only votes against it in ‘exceptional circumstances’. This was another reason why the rejection of Tax Credits cuts by the House of Lords in 2015 was so controversial.

6. The Great Offices of State

It is now an accepted convention that the Great Offices of State will be filled from the House of Commons. The Great Offices of State are: Prime Minister, Foreign Secretary, Home Secretary and Chancellor of the Exchequer. 

The last member of the House of Lords to hold one of the Great Offices of State was Lord Carrington. Between 1979 and 1982 Lord Carrington was Foreign Secretary but resigned in 1982 citing the convention of Individual Ministerial Responsibility for failing to recognise the Argentinian threat to the Falkland Islands.

Lords Carrington was the last holder of a Great Office of State to come from the House of Lords.

The last Prime Minister to govern from the House of Lords was the Marquess of Salisbury in 1902. It is now unthinkable that a Prime Minister could govern from the House of Lords because they would avoid direct scrutiny from the representatives of the the people.

7. Representative Function

The fact that the House of Commons contains the elected representatives of the people gives it a greater legitimacy than the House of Lords. Although the House of Lords contains a number of very eminent and respected figures, the fact that their judgement and performance cannot be held to account by the electorate reduces their political mandate. 

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