The House of Lords is in a minority of legislative chambers around the world in being entirely unelected. However, it is often contended that the House of Lords is actually able to do a more effective job than scrutinising the executive than the House of Commons. So, to what extent is this the case?

How does scrutiny take place in both chambers?

Scrutiny of the executive takes place in both chambers and in similar ways. Firstly, there is daily question time in both Houses in which members can question ministers or government spokespeople. Secondly, there is the existence of Select Committees through which government actions can be scrutinised. Thirdly, both Houses scrutinise legislation and any piece of legislation (unless the Parliament Act is invoked) go through the same stages in both Houses before receiving Royal Assent. Fourthly, the opposition can schedule their own debates to highlight the inadequacies of Government policy. Finally, the ultimate form of scrutiny is that a Government can be removed via a vote of no-confidence.

Why is scrutiny of the Executive in the House of Commons often found to be lacking?

There are a number of reasons why scrutiny in the House of Commons might be found to be lacking. However, they can be summarised into what Lord Hailsham called the ‘elective dictatorship’. This term implies that once a government has found its way into office, it can essentially govern as it pleases, with little significant scrutiny. There are a number of factors that create this set of circumstances in the House of Commons. However, in summary:

1. 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 58.4 seats, whilst Tony Blair secured majorities of 179 and 166 in 1997 and 2001. Such significant majorities allow the government to put forward an agenda which they realistically know cannot be effectively challenged.
2. The Government controls the Parliament Agenda. Under the Standing Orders of Parliament, Government business always takes precedence unless it is one of the limited number of Opposition Days or Private Member’s Bill days.
3. As Britain has a fusion of powers, the Prime Minister is also almost always the leader of the largest party in Parliament. The Prime Minister also has 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.

Given all of this, Governments with a signficant majority are usually able to operate freely from most constraints. For example, during Tony Blair’s premiership, the Government lost only four votes in the House of Commons, all of which occurred in 2005. Similarly. Margaret Thatcher only lost four substantive votes in a decade as Prime Minister.

However, it equally must be noted that Prime Ministers who do not have the parliamentary arithmetic on their side may struggle to assert dominance. For example, Theresa May had a split party in 2016 and then lost her majority in 2017. She lost 33 votes in the House of Commons, including three on her Brexit Withdrawal Agreement. The first defeat she suffered was by 230 votes, the biggest margin in parliamentary history. Equally, when Boris Johnson took over as Prime Minister, he lost 12 divisions, including being the first Prime Minister to lose a vote on their first day on which Parliament was sitting.

How does Scrutiny in the House of Commons and the House of Lords compare?

So, how does scrutiny in the House of Commons and the House of Lords work. Let’s compare it by looking at the different forms of scrutiny in detail.

Legislation

The House of Lords is often called an ‘amending chamber’ and one of its specialities is going through legislation ‘line by line’ to improve it and, in doing so, scrutinising the House of Commons and the Executive. The actual legislative process that a bill goes through in the House of Lords is largely the same as in the House of Commons:

The only significant difference is that when a bill reaches Committee Stage in the House of Lords the whole house sits as a ‘Committee of the Whole House’, rather than a smaller public bill committee being formed, as normally happens in the House of Commons. However, despite the similarities in process, there are a number of factors that arguably make the Lords much better at scrutinising bills than the House of Commons:

1. Time

Traditionally the House of Lords is able to spend far more time considering legislation in detail. They are therefore able to go through it line-by-line. A good example of this can be found in the Agriculture bill which recevied Royal Assent in 2020. This bill started its journey in the House of Commons:

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

minutes

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

2. Expertise

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 signfiicant achievements in a certain field. This same level of expertise does not exsist in the House of Commons. Whilst Members of the House of Commons may build up political expertise, they are best charactersied as generalists. 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. Of his last 10 contributions to the House of Lords, six have been directly related to military matters, two have 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 expert. This kind of pattern is not usual for members of the House of Lords. Alternatively, we can an look atan MP by way of comparison:

David Lammy is the MP for Tottenham. Of his last 10 contributions to the House of Commons:

1 was about support for bereaved families following a public disaster.

2 were about the position of judges in Aghanistan.

1 was a point of order about a response by a Minister.

1 was about Government judicial plans and the impact on the Rule of Law.

1 was about the entirety of Police, Crime and Sentencing Bill.

1 was about the issue of rape within the Police, Crime and Sentecing Bill.

1 was about the issue of violence towards women and girls within the Police Crime and Sentencing Bill.

1 was about the Rainsbrook Secure Training Centre

Because Lammy, like all other backbench MPs, has to represent the huge range of views within his constiuency he is contributing on arange 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 in this issue. 

Baroness Grey-Thompson – Tanni Grey-Thomspn 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. 

3. Independence

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 less strong. 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:

This means that since the 2015 General Election there have been 452% more defeats in the House of Lords than in the House of Commons.

However, despite these benefits, the House of Lords has a number of limitations when it comes to considering legislation:

1. Parliament Acts – The 1911 Parliament Act removed the right of the House of Lords to block legislation, instead limiting it to haveing a delaying power of two years. Since then, the 1949 Parliament Act has limited the power of delay to one year. This has been used 4 times since 1949, most recently in the passage of the Hunting Act (2004).

However, importantly, the fact that it has been used four times does not mean it is unimportant. In fact, the reason it has only been used four times is the House of Lords are likely to back down, rather than risk the Parliament Act being invoked.

2. Conventions – There are a number of constitutinoal conventions that limit the power of the House of Lords to scrutinise legislation:

The Salisbury Convention – This convention emerged in between 1945 and 1950 when Clement Attlee’s Labour party had a majority of 145 seats but had only 16 peers in the House of Lords. These numbers would mean that the Lords could block the wishes of the democratically elected government. This convention dictates that if an issue is part of the manifesto of a government with a clear mandate (i.e a majority in the election) it should not be opposed by the House of Lords.

For example, in the 2015 General Election David Cameron’s Conservatives made a clear manifesto promise that they would hold an in/out referendum on EU membership. When they won a majority, they legislated for this with the European Union Referendum Act (2015). Therefore, whilst three amendments were suggested and voted on by the Lords, the bill itself was never voted on.

Financial Privilege – It is a long held convention that the House of Lords do not vote against supply bills (bills that dictate how money will be spent or taxes will be raised). The best example of this is the yearly Finance Act (informally called ‘the budget’) which outlines government spending for the year. For example, the Finance Act 2021 was debated for a total of 2 hours and 22 minutes in the Lords and it was not referred for Committee Stage and was never voted on.

3. Lack of Democratic Legitimacy – The House of Lords is keenly aware that it lacks democratic legitimacy. This means that, whatever the consensus of the House, they are unlikely to challenge the government on contentious issues.

Notably, an example of this can be found in the EU Withdrawal process. Both the EU (Notificiation of Withdrawal) Act 2017 and EU (Withdrawal Agreement) Act 2020 had been sent back to the Commons with amendements. The notification bill was sent back to the Commons with two proposed amendments. However, the Commons rejected these and the Lords subsequently backed down. The Withdrawal Agreement Act was sent back to the Commons with five amendments. However, the Commons rejected all five amendements and the Lords subsequently backed down. Importantly, despite these two bills being among the most important in a generation, the Lords knew that 17.4 million people had voted for Brexit and any suggestion they were seeking to prevent it would be politically sucidal. Therefore, the government was able to get the bills passed without amendments it did not want.

When it comes to legislation the House of Lords is probably better at scrutisning the detail of bills and looking at the wider ramifications of issues within them. However, the lack of democratic legitimacy means that if a government with a Commons majority really push an issue through, they are unlikely to be stopped by the House of Lords.

Committees

Select Committees operate in a similar way in the House of Lords to how they operate in the House of Commons. However, there are significant differences in both the scale and scope of the Committees. The House of Lords has only issue Committees, of which there are five permanent ones:

• The European Union Committee
• The Constitution Committee
• The Economic Affairds Committee
• The Science and Technology Committee
• The Communications Select Committee

The House of Commons, alongside issue Committees like the Public Accounts Committee, also have Departmental Select Committees that scrutinise a particular government department. This means that the levels of Executive Scrutiny carried out by Commons Committees is much higher. In addition, the Commons has a Liason Committee. This is made up of the Chairs of all other Committees. Since 2002, the PM has appeared at least annually in front of the Committee and faced questions from it. Since the Wright Reforms of 2009 the ability of Select Committees to scrutinise the Government have also increased.

However, the Lords often also set up special inquiry committees to look at issues that might arise during a Parliament. For example, there is currently a Lords COVID-19 Committee that have investigated four issues related to COVID-19. This is something that the Commons does not replicate.

Overall, Committees are much more powerful in the Commons and therefore better at scrutinising the Executive. However, on certain issues, most notably the Constitution, the Lords Committees offer better scrutiny than that of the Commons.

Question Time

Just like in the House of Commons, Question Time takes place each Monday to Thursday in the Lords. The questions will be fielded by a Lords Minister (if there is one) or by a Government Lords spokeperson. However, whereas in the Commons Question Time is very broad, Question Time in the Lords is more specific with a particular focus of each Question Time. For example, here are the Question Time schedules for Thursday 21st October 2021:

Commons Questions:

09:30 – Oral Question – International Trade

Lords Questions (11.00 onwards):

1. Employing ‘elemental analysis’ to determine where cotton used in goods imported to the UK was cultivated

2. What environmental considerations influence government trade policy?

3. Takeover of UK companies by private equity firms

4. Impact of the Protocol on Ireland/Northern Ireland on trade within the island of Ireland since 1 January

5. Discussions with the Vice President of the European Commission following the publication of the EU’s proposals regarding the Protocol on Ireland/Northern Ireland

6. Diplomatic consequences for trade negotiations of the government’s decision to renegotiate the Protocol on Ireland/Northern Ireland

In some respects this increases the scrutineering powers of the Lords as Ministers or Spokespeople are asked very specific questions to which they cannot escape with a party political response. However, one of the limits of Lords Question Time is there may not be a Minister to be held directly accountable. This is particularly notable in the case of the Prime Minister. By convention, the Prime Minister must now come from the House of Commons. Therefore, whilst they are scrutinised by the Commons each Wednesday, they are never directly scruitnised by the Lords. Further to this, the Speaker of the House of Commons can demand the government come to the Commons to answer Urgent Questions. This has been a mechanism of scrutiny that has grown significantly in recent years, as Lindsay Hoyle has followed the trend of John Bercow in allowing many more Urgent Questions.

Therefore, in terms of Question Time, whilst there are elements of the Lords processess that make it better, the absence of Ministers and the inability to demand Urgent Questions means that the Lords ability to scrutinise the Executive through this method is more significant.

Debates

Debates are held in a similar fashion in the House of Lords to the House of Commons. Similarly to the issue of legislation, Lords have more time and more expertise to debate issues in depth. They are also less partisan and do not have to show their constituents they are representing them and so do not feel the need to make interventions for show. However, debates in the House of Commons always have a response from the Government and often from senior ministers. For example, at the end of a three-day debate on exiting the EU in December 2018, Theresa May answered questions for nearly three hours.

Votes of No Confidence

The ultimate form of scrutiny that a Government faces is a motion of no confidence. However, this is a mechanism unique to the House of Commons. The Government relies on the support of the elected House of Commons to remain in office, but not that of the unelected Lords. The last Prime Minister to face a confidence motion was Theresa May in January 2019. She survived this vote by 325 to 306. The last successful motion of no confidence was against the administration of James Callaghan which he lost by 311-310.

Therefore, as there is no equivalent mechanism in the Lords, it is clear on this final method of scrutiny that the House of Commons is more effective.

Which House performs better scrutiny of the Executive?

It is undeniable that in ways the scrutiny offered by the House of Lords is superior to the House of Commons. The range of expertise, the time available to them and the non-partisan atmosphere all contribute to this. However, despite these factors, the Lords cannot be said to perform better scrutiny of the Executive than the Commons. The difference in the powers and composition of the two houses means that the Lords is always mindful of over-stepping its mark constitutionally. Secondly, the inability to directly scrutinise the majority of Ministers stops it from fully holding the government fully to account.

Other Articles you may find useful linked to this topic:

Why are conventions still an important part of the UK constitution?

The Salisbury Convention

Theresa May and Brexit – An example of a lack of Prime Ministerial Control?

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

James Callaghan and the last successful ‘Motion of No Confidence’ in a UK Government

Do Opposition Days in Parliament really matter?

Urgent Questions – What are they and how important are they as a mechanism of parliamentary scrutiny?

PMQs – Is it just parliamentary theatre?

The Commons Liaison Committee: What is its role and significance?

What is meant by the Elective Dictatorship and why does it exist?

The travails of Theresa May in trying to achieve Brexit have been well documented, including in this article here! However, it is easy to forger now that when Boris Johnson became Prime Minister, he faced his own significant challenges.

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