Why does the House of Commons have primacy over the House of Lords?
There can be no doubt that the House of Commons now has primacy over the House of Lords. This is shown in a number of ways.
Firstly, the constitutional powers of the House of Lords have been limited by both statute and convention. For example, the Parliament Acts of 1911 and 1949 mean that the House of Lords can now no longer block legislation outright and can now only delay it for two years.
Secondly, conventions such as the Salisbury Convention and Financial Privilege limit the power of the Lords. The Salisbury Convention means that the House of Lords do not vote against a bill that forms the basis of the Government’s election manifesto. Secondly, the financial privilege of the House of Commons means that the Lords do not vote against matters pertaining to the supply of money to the government. For example, the Lords do not vote against the government’s yearly budget.
Thirdly, it is now the convention that senior ministers, and most notably the ‘Great Officers of State’, do not come up the House of Lords and instead have a seat in the House of Commons. The last holder of a Great Office of State to sit in the Lords was Lord Carrington who served as Foreign Secretary until 1982 and it is now seemingly unthinkable that such a senior minister would hold that position from the House of Lords.
However, despite these structural limits of the House of Lords, it is often too tempting to understate its strengths in certain areas – this is most notably in the case of scrutinising legislation.
What is mean by legislation?
Legislation means the creation of law by a Parliament (statute law). However, there are a number of ways that statute law is made in the UK:
Primary Legislation – Primary Legislation is statute law that is passed by Parliament and goes through the full legislative process. Not all legislation can be passed in this way, there is simply not the parliamentary time to do this. For example, between 2017-2019 there were just 70 Acts of Parliament enacted.
Secondary Legislation – Secondary Legislation is also known as ‘delegated legislation’ and is essential for the effective administration of government. Secondary Legislation is initiated by a delegated person or body after they have been given the authority to do this through Primary Legislation. For example, in 2011 Parliament passed the Charities Act. One of the aims of this Act is for Parliament to decide the rules of who can and cannot be a charity. It would clearly not be possible for Parliament to carry out a detailed consideration of every case itself. Therefore, it delegates its power to the Charities Commission to make these decisions.
Statutory Instruments – Statutory instruments are the most common way that secondary legislation is passed with around 3,500 being passed per year.
A list of all statutory instruments can be found here:
Statutory instruments are scrutinised by Parliament and this is done in one of two ways:
- Negative Resolution Procedure: This is by far the most common way of scrutinising statutory instruments. In this procedure, any statutory instrument has to be laid before Parliament for 40 days and will automatically become law unless either House votes against it in that time. In practice, this happens extremely very rarely. The last time a Statutory Instrument was voted against under this procedure was in February 2000.
- Affirmative Resolution Procedure: These SIs are much rarer. Under this procedure, the Houses must vote on the SI before it becomes active. They are usually used for the most controversial legislation, for example those that allow the government to increase its surveillance of citizens. A recent example of an SI that was held to the affirmative Resolution Procedure were the ‘Plan B’ COVID measures in December 2021. Under this procedure both Houses of Parliament must agree to the SI being enacted.
Orders-in-Council – These are decrees made by the Queen on the advice of the Privy Council. It is through Orders-in-Council that the Government’s Royal Prerogative Powers are carried out. Importantly, unlike in other forms of legislation, there is no serious parliamentary scrutiny that can take place of them. A good example for considering this issue is the ordering of the use of military force by the Prime Minister. Since 2003, it had begun to emerge as a convention that the Prime Minister should seek the authorisation of Parliament before engaging British Armed Forces in combat. However, in 2018 Theresa May ordered the British Air Force to make strikes against the Syrian Government of Bashar Al-Assad. This was done through an Order-in-Council.
What are the differences in the roles of the House of Commons and the House of Lords in the primary legislative process?
Unless the Parliament Act is invoked, a bill goes through the same process in the House of Commons as in the House Lords. Most bills tend to start, however, in the House of Commons. This is why the House of Lords is often called an ‘amending’ or ‘revising’ chamber. The only significant difference is that during the Committee Stage the House of Lords sits as a ‘Committee of the Whole House’.
Between the 2010 General Election and October 2021 there were 407 Acts of Parliament passed. Of these, 104 (25.5%) originated in the House of Lords. This is primarily as the Government often uses the House of Lords to begin the passage of lower profile bills and therefore avoid a logjam in the House of Commons.
How strong is the House of Commons at scrutinising legislation?
There are a number of limits that the House of Commons has when scrutinising legislation:
- The Elective Dictatorship
This term coined by Lord Hailsham describes the situation whereby the government of the day can practically do whatever it wishes. The voting system of First Past the Post tends to lead to very clear majorities for the governing party. The average majority since 1945 has been 57.5 seats, whilst Tony Blair secured majorities of 179 in 1997 and 166 in 2001. Such significant majorities allow the government to put forward an agenda which they realistically know cannot be effectively challenged, or even closely scrutinised. During his ten years as Prime Minister Tony Blair suffered only four defeats in the House of Commons and did not lose a single vote in his first eight years in office. Similarly, Margaret Thatcher lost only four divisions in ten years.
2. The Power of the Whips
The whips are extremely influential in the House of Commons. If an MP wishes to advance their parliamentary career, they will not want to vote contrary to the way their whips and party leaders wish. This can easily lead to the accusation that backbench MPs are just ‘lobby fodder’ for their leadership.
Party leaders have enormous powers of patronage, with the future career prospects of MPs in their hands. MPs who want to advance to become Ministers or Committee Chairs will need the support of their party. In addition, MPs need the support of their party to win their seat at a General Election. It is extremely rare for an independent to be elected to the House of Commons, with the last, Sylvia Hermon (North Down), winning as an independent at the 2010, 2015 and 2019 elections. As a result of these factors, backbench rebellions are rare and Governments can usually rely on the support of their own MPs. Since the 2019 General Election, of 650 MPs there are 321 who have never once voted against their own party. Between 1945 and 2019 there were 19,909 divisions in the House of Commons, of which the Government won 99.2% (all but 148).
3. The Government control the parliamentary agenda
For example, the European Union (Future Relationships) Act went through all of its stages in both Houses on the same day. This was as the government had only agreed the agreement with the EU that the bill would enact the day before – despite it being one of the most important Acts of Parliament passed in a generation. In the House of Commons, it received just 4 hours and 37 minutes debate. Similarly, the Internal Markets Bill that set out how trade would operate within the UK after Brexit was debated for just 11 hours by the House of Commons. Further, the complex Agriculture Act (2020), was given just 32 hours debate – despite it not being under the same time pressures as the Brexit legislation above.
The House of Commons simply does not have the time to devote to considering legislation in thorough detail.
5. Public Bill Committees
When a bill is progressing through Parliament a Public Bill Committee is formed. Unlike Select Committees, these Committees are chosen by the party whips. The Committee is made up of members from across the House and has a minimum number of 16 and a maximum of 50. Whilst the size my vary, the composition always reflects the party balance of the Commons. This Committee can invite outside input into the bill and seek evidence from different parties. For example, for the Agriculture Bill of 2020 the committee sought evidence from groups ranging from the National Farmers Union and the RSPCA to companies like Arla Foods. Therefore, whilst there is the chance for detailed scrutiny, these committees, they are notoriously partisan and almost always vote down party lines.
6. Private Members Bills are very unlikely to become law
Private Members Bills (those introduced by backbenchers) are unlikely to become law. Of all bills introduced between the 2015 General Elections and the end of 2021 the make up was:
- 76.9% have been bills introduced by the Government (Government Bills).
- 6.7% have been Private Bills.
- 16.2% have been Private Members Bills.
This means that the Government realistically have complete control over the process:
|Parliamentary Session||Bills receiving Royal Assent||Government Bills||Hybrid Bills||Private Bills||Private Members Bill|
Often, MPs introduce Private Members Bills not because there is a realistic chance to pass, but because they want to show their constituents how active they are. For example, Conservative Backbench MP Christopher Chope proposed 119 bills between the 2015 General Election and the end of 2021 – none of which became law.
Realistically, the only way that a Backbencher will get legislation amended is if the Government support their bill. A good example of this can be seen in Theresa May (who won the Spectator Magazine’s ‘Backbencher of the Year’ award in 2021). In 2020 May introduced the Death by Dangerous Driving (Sentencing) Bill under the Ten Minute Rule Motion. Most people agreed that sentencing for dangerous drivers was too lenient. Therefore, following this, this the Government included May’s proposals in the Police, Crime, Sentencing and Courts Bill 2021.
7. The Payroll Vote
The House of Commons is full of Ministers and Shadow Ministers. They are constrained by Collective Responsibility and will not individually scrutinise bills, instead doing so following the party line. In total, there are 270 MPs who fall into this category: 99 Government Ministers and 67 Shadow Ministers/Spokespeople. When you also remove the Speakers and Deputies and abstentionist Sinn Fein MPs, that leaves just 369 to scrutinise legislation entirely as they see fit.
However, despite these clear limits, the House of Commons has the strength of having democratic legitimacy. This means that when it does vote against a bill, the clear message is sent to the government that the bill needs amending and the direction of the government may need to change on the issue. There are numerous examples of this. For example, in the wake of the the 7/7 bombings in 2005, Tony Blair sought to amend the Terrorism Bill to allow terror suspects to be held for up to 90 days without charge. This was defeated by 322-291 after 49 Labour MPs rebelled. The policy was subsequently changed to 28 days.
In addition, in recent years Select Committees have become more effective at considering legislation. Traditionally, bills were only considered by Public Bill Committees. Members of these committees are selected by the party whips and are often there seen to lack the ability to independently scrutinise a bill. Select Committees, on the other hand, have grown in importance since the Wright Reforms of 2009. They have become more willing to scrutinise legislation by calling in experts to give evidence on them. For example, the Digital Culture and Media Select Committee have recently been scrutinising the Governments Online Safety Bill and prepared a detailed report on it after hearing from a variety of witnesses, including former Premier League Football Rio Ferdinand:
How strong is the House of Lords at scrutinising legislation?
The strengths of the House of Lords in scrutinising legislation can be remembered by remembering the mnemonic TIE.
- Time – Unlike the House of Commons, the House of Lords spend a significant amount of time going through bills in detail. They are often said to go through a bill ‘line by line’. As an example of this can be found in the Agriculture Act (2020):
House of Commons Time
1st Commons Reading – No Debate
2nd Commons Reading – 03.02.20: 18.02 until 21.59 = 3 hours 57 minutes
Commons Committee Stage – 11 meetings between 13.02.20 and 05.03.20: 22 hours and 42 minutes
Commons Report Stage – 13.05.20: 14.14 until 17.30 = 3 hours 50 minutes
3rd Commons Reading – 13.05.20: 18.32 until 18.51 = 19 minutes
Consideration of Lords Amendments – 12.10.20: 18.02 until 21.00 = 2 hours 58
Consideration of Lords Amendments – 04.11.20: 16.16 until 17.15 = 59 minutes
Total Commons Time: 32 hours and 45 minutes
Total Commons Chamber Time: 10 hours and 3 minutes
House of Lords Time
1st Lords Reading – No Debate
2nd Lord Reading – 10.06.20: 12.45-18.36 = 5 hours and 51 minutes
Lords Committee Stage – 14 meetings between 07.07.20 and 28.07.20 = 54 hours and 18 minutes
Lords Report Stage – 6 meetings between 15.09.20 and 22.09.20 = 27 hours and 27 minutes
3rd Lords Reading – 01.10.20: 14.01 until 14.42 = 3 hours and 35 minutes
Consideration of Commons Amendments – 20.10.20: 15.45 until 19.20 = 3 hours and 35 minutes
Consideration of Commons Amendments – 09.11.20: 15.33 until 16.47 = 1 hour 14 minutes
Total Lords Time: 96 hours and 0 minutes
Total Lords Chamber Time: 96 hours and 0 minutes
In addition, when it reaches the Committee Stage in the House of Lords the bill is considered by a ‘committee of the whole house’, rather than, as in the Commons, a group of MPs selected by the party whips.
Members of the House of Lords are appointed for life. They therefore don’t need to please their party whips in order to keep their position. Although there is party whipping in the Lords, this is much weaker. In addition, there are currently 189 Crossbenchers in the Lords who have no party whips to control them. As a result of these factors, the Lords shows much more partisan independence than the Commons. This can be seen in the number of Government defeats suffered in the House of Lords compared to the House of Commons:
|House/Year||House of Commons||House of Lords|
This means that since the between the 2015 General Election there were 452% more defeats in the House of Lords than in the House of Commons.
Indeed, there have been some very significant recent defeats imposed by the House of Lords on the Government:
18/01/22 – The Government suffered 14 defeats on their Police, Crime and Sentencing Bill. This included the defeat of a clause that would give the police the authority to disperse noisy (but peaceful) protests.
26/10/21 – A defeat by a majority of 143 on a clause in the Environment Bill added by the Lords that insisted sewage companies reduce harms from the untreated dumping of sewage. In total the Government suffered 13 defeats on the Environment Bill.
27/04/21 – A defeat by a majority of 82 on a clause in the Fire Safety Bill. This was the third time the House of Lords had requested a clause that stopped landlords from passing on the cost of making flats safe to their tenants following the Grenfell Fire. In total the Government suffered 6 defeats on the Fire Safety Bill.
02/02/21 – A defeat by a majority of 171 on a clause in the Trade Bill. This clause would
require that both houses debate government response to determinations by the High Court that a trading partner was engaging in genocide. In total the Government suffered 14 defeats.
on the Trade Bill.
One of the benefits of the House of Lords is that it is full of people who are experts in their chosen field. For the most part, people are appointed to the House of Lords following significant achievements in their professional lives. This same level of expertise simply does not exist in the House of Commons.
Whilst Members of the House of Commons may build up political expertise, they are best characterised as generalists – they have to try to manage an interest in many different policy areas. Peers, however, on the most part can best be described as specialists. Many peers will only debate and contribute to issues they have some level of expertise in.
For example, Lord West became a peer in 2007. Prior to this he had been the First Sea Lord. As of October 20th 2021 and looking his last 10 contributions to the House of Lords, six had been directly related to military matters, two had been about manufacturing and particular points were raised about shipbuilding and one was about intelligence matters (between 2007 and 2010 West was an Intelligence Minister). Only one was about something in which he could not reasonably be considered an expert. This kind of pattern is not unusual for members of the House of Lords.
Alternatively, we can an look at an MP by way of comparison. Huw Merriman is a Backbench Conservative MP. As of the 18th February 2021, of his last ten contributions in the House of Commons chamber:
1 was about Dementia Research
1 was about the Tourism Industry
1 was about Autism in the Workforce
1 was about the Docklands Light Railway
1 was about the COVID Vaccination Programme
1 was about Food Labelling
1 was about Consumer Protection
1 was about International Travel
1 was about BBC Funding
1 was about Knife Crime
Because Merriman, like all other backbench MPs have to represent the huge range of views within his constituency he is contributing on a range of issues, not all of which he can realistically be considered an expert in.
There are a number of good examples of specialists in the House of Lords. However, just some are:
Lord Lisvane – Lord Lisvane is a Crossbench peer. He joined the House of Lords in December 2014. Before entering the House of Lords he was Chief Clerk of the House of Commons. He has one of the country’s foremost expert in constitutional affairs and parliamentary procedure and contributes enormously to the work of the House of Lords on this issue.
Baroness Grey-Thompson – Tanni Grey-Thomson is a former Paralympian who was born with spina bifida. She has used a wheelchair for her entire life. In March 2010 she was created a Life Peer. She sits a crossbencher. Thompson has used her peerage to challenge the government on disability rights. For instance, she was an outspoken critic of the government’s ‘bedroom tax’, which would have removed benefits from families using a spare bedroom to support a disabled person.
The Time, Independence and Expertise of the House of Lords (TIE) arguably make it very strong at scrutinising legislation.
In addition, the House of Lords as a significant expertise in scrutinising Statutory Instruments. Unlike the Commons, the Lords has a specific committee through which they scrutinise statutory instruments. This is called the Secondary Legislation Scrutiny Committee. Whilst the general public might not know about them, most legislation is delegated and this makes the Lords an essential part of the legislative process. Following the EU Referendum the Government were criticised for using so-called ‘Henry VIII Powers’ to push through the conversion of EU Law into UK Law. These powers would be exercised via Statutory Instrument, making the Lords essential in keeping a check on the Government. If either House rejects a statutory instrument it cannot become law. In addition, SIs cannot be amended. However, since 1950, only 16 statutory instrument have been rejected of which just five were rejected by the House of Lords – and a total of 0.01% since 1965.
However, just like the House of Commons, the Lords has its limits in scrutinising legislation:
- Lack of Engagement
Many Lords are simply not engaged with the legislative process. For example:
- Between 2010 and 2015 62 peers claimed £360,000 in expenses despite not voting in a single division!
- Between 2016 and 2017 115 peers did not speak even once in the House of Lords.
- Between 2018 and 2019 Lord Bookman claimed £50,000 in expenses but did not speak once. 46 peers did not vote a single time.
A number of peers see their peerage as simply an honour, rather than as a chance to actively participate in the political and legislative process. These are known as ‘non-working peers’. For example:
Lord Sugar – Since joining the House of Lords in 2009 (as of 2021) Lord Sugar had voted in 26 out of 1103 divisions. This is just 2.36% of divisions. He has only spoken 63 times.
Lord Lloyd-Webber – Andrew Lloyd-Webber was a member of the House of Lords from 1997 to 2017. In 20 years he spoke just 20 times and voted just 42 times out of 2460 divisions (just 1.7%).
Lord Paul – Since 2010 Lord Paul (as of 2021) had voted in 24 out of 1025 divisions (2.3%).
Whilst there are many peers with excellent attendance and voting records (Lord Campbell has voted in 76.8% of divisions since 2015) the existence of non-working peers undermines the credibility of the house.
This can also be shown when considering the turnout of the Commons and Lords overall in divisions. Below are the six most recent divisions in each House:
Despite the Lords having over 150 more Members (and less of a payroll vote), turnouts are consistently lower.
2. Lack of Legitimacy
The fact that the House of Lords is unelected reduces its legitimacy. This lack of legitimacy is furthered by mistrust over the appointments process. The fact that the Lords is not seen as fully legitimate can lead members not to risk upsetting the public. This was a point made during the debate over Brexit.
3. Constrained by Convention and Statute
A number of conventions such as the Salisbury Convention and those
regarding Money Bills stop the Lords from fully scrutinising all aspects of Government policy. In addition, the Parliament Acts mean the House of Lords often give into the House of Commons when there is a conflict. The fact that the Parliament Act has only been used four times since 1949 should not be seen as evidence of its lack of importance. Instead, it is evidence of that fact that, more often than not, the Lords will back down in any conflict with the Commons.
So, who is more effective at scrutinising legislation – the Lords or the Commons?
There can really be no doubt that structurally the Lords is more effective at scrutinising legislation than the Commons. They spend more time considering it, they often have better levels of expertise and the party whips do not control the agenda in the House. However, they lack democratic legitimacy and are limited in what they can do by conventions and the Parliament Act. Therefore, whilst the Lords are undoubtedly more effective, the effect they have is not as significant is it could perhaps be. Ultimately, in the UK, the legislative process is dominated by the Government of the day, not by Parliament. As a fellow Politics Teacher put it well to me:
The UK doesn’t have a proper legislature. It does not create legislation in the way, for example, the US Congress does due to the fusion of powers. It simply legitimises government legislation.
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The Salisbury Convention
Why is the Parliament Act so important despite being so rarely used?