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the United Kingdom. The House of Lords has no departmentally related com-
mittees like those of the Commons, but since 1979 there has been a Lords™ Select
Committee on Science and Technology which inquires into government policy
and other matters of public concern a¬ecting science and technology. It has
reported on such subjects as renewable energy, science teaching in schools and
cannabis: the scienti¬c evidence. The committee work of the House has been
expanded with the establishment in 2001 of new sessional (permanent) com-
mittees on the constitution and on economic a¬airs. The terms of reference of
the Constitution Committee are:

to examine the constitutional implications of all public bills coming before the House; and to
keep under review the operation of the constitution.

A notable instance of this committee™s work was its report on Waging War:
Parliament™s Role and Responsibility (Fifteenth Report, HL 236-I of 2005“06).
The House also sets up ad hoc committees from time to time, inquiring for
instance into proposals for a bill of rights, sustainable development and human
cloning and stem cell research. One such committee conducted a thorough
643 Parliament and the responsibility of government


inquiry into the law of murder, making an important contribution to the debate
on the subject of the mandatory life sentence for this crime: Report from the
Select Committee on Murder and Life Imprisonment, HL 78 of 1988“99. Rodney
Brazier remarks that ˜the expertise at the disposal of Lords select committees
gives them considerable authority™ (Ministers of the Crown (1997), p 259).
The powers of the House of Lords in relation to primary legislation are sub-
stantially restricted by the Parliament Acts 1911 and 1949. A money bill passed
by the House of Commons, if sent up to the House of Lords at least one month
before the end of the session, may be presented for the royal assent if it has not
been passed by the Lords without amendment within one month. For this
purpose a ˜money bill™ is a public bill dealing only with such matters as central
government taxation, supply, appropriation and government loans, and must
have been certi¬ed as such by the Speaker of the House of Commons. (The
annual Finance Bill is not necessarily a money bill as it may deal with other
matters besides taxation.) Any other public bill “ except a bill to extend the
maximum duration of Parliament beyond ¬ve years “ may be presented for the
royal assent if it has been passed by the Commons in two successive sessions and
the Lords have rejected it in each of those sessions, provided that a year has
elapsed between the second reading of the bill in the House of Commons in the
¬rst session and its third reading in that House in the second session. So far
seven bills have been passed without the consent of the Lords under the proce-
dure of the Parliament Acts: the Government of Ireland Act 1914, the Welsh
Church Act 1914, the Parliament Act 1949, the War Crimes Act 1991, the
European Parliamentary Elections Act 1999, the Sexual O¬ences (Amendment)
Act 2000 and the Hunting Act 2004. The power to overcome the resistance of
the Lords by this means is one of last resort, and most di¬erences between the
Houses (or between the government and peers contesting its legislation) are
resolved by compromise or concession.
The question whether the prohibition on the use of the Parliament Acts for
the passage of a bill to extend the life of a Parliament beyond ¬ve years (see
above) could itself be deleted by an Act passed by the machinery of those Acts,
was a matter on which di¬ering views were expressed by the Law Lords in
R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262: yes, said Lord
Bingham [32]: no, said Lords Nicholls [57]“[59], Steyn [79], Hope [118], [122],
Carswell [175] and Baroness Hale [164]; probably no, in the opinions of Lords
Rodger [139] and Brown [194].
When the Labour Government that came to power in 1945 embarked on a
radical programme of nationalisation which was threatened by the existence of
a Conservative majority in the House of Lords, the leader of the Conservative
peers, Lord Salisbury, urged self-restraint and reached an agreement with Lord
Addison, the Leader of the House, to the e¬ect that the Upper House should not
reject a ˜manifesto™ bill, considered to have been approved by the electorate. In
1967 another leader of the Conservative Opposition in the Lords rea¬rmed the
˜Salisbury (or Salisbury-Addison) doctrine™ with respect to manifesto bills: it
644 British Government and the Constitution


should be assumed that any such bill had been approved by the electorate and,
while the Lords might properly amend it in order that the Commons might
reconsider a matter, they should not insist on the amendment if the Commons
remained ¬rm. Restraint should be exercised also with regard to non-manifesto
bills passed by the Commons, but in certain circumstances the Upper House
would be justi¬ed in using its delaying power, rejecting the bill or insisting on
an amendment.

House of Lords, HL Deb vol 280, cols 419“20, 16 February 1967

Lord Carrington: . . . [T]his House, the unelected Chamber, should not, except in the last
resort and in quite exceptional circumstances, override the opinion of the House of Commons
which has been elected by the people of this country. If we did not adopt such a course it
would be impossible for any Labour Government to govern, since obviously much of the leg-
islation which is introduced is bitterly opposed by those of us in the Conservative Party. It
would really not be possible for a two-Chamber system of Government to operate, nor would
it be a justifiable position for the unelected Chamber to control the timing of the
Government™s legislative programme by using its delaying powers. . . .
. . . There could arise a matter of great constitutional and national importance, on which
there was known to be a deep division of opinion in the country or perhaps on which the
people™s opinion was not known. In a case of this kind, it seems to me that the House of
Lords has a right, and perhaps a duty, to use its powers, not to make a decision, but to afford
the people of this country and Members of the House of Commons a period for reflection
and time for views to be expressed.


It may be doubted whether these principles are su¬ciently precise, or are
supported by a su¬ciently consistent practice, to give them the status of a true
convention, but they have played a part in guiding the conduct of the House in
its relation to the Commons. R Rogers and R Walters, How Parliament Works
(5th edn 2004), p 222, remark that ˜the Salisbury convention is perhaps more a
code of behaviour for the Conservative Party when in opposition in the Lords
than a convention of the House™. In a House of Lords in which the Conservative
Party no longer had a majority and from which most of the hereditary peers (all
but ninety-two) had been removed by the House of Lords Act 1999, it was con-
tended by opposition peers that the Salisbury convention had lost much of its
justi¬cation. For instance, Lord McNally, the leader of the Liberal Democrats in
the Lords, said (HL Deb vol 668, col 1371, 26 January 2005):

the Salisbury convention was designed to protect the non-Conservative government from
being blocked by a built-in hereditary-based majority in the Lords. It was not designed to
provide more power for what the late Lord Hailsham rightly warned was an elective dicta-
torship in another place [the House of Commons] against legitimate check and balance by
this second Chamber.
645 Parliament and the responsibility of government


(See also HL Deb vol 672, cols 20“1, 17 May 2005; cols 759“60, 762“3, 6 June
2005.) The terms on which a reformed second chamber is to engage with the
House of Commons will need to be renegotiated, to settle the rules, conventions
or practices governing the relationship.
Even as constrained by law and practice, the House of Lords was able to cause
considerable di¬culty to the 1974“79 Labour Government, which had at best
only a very slender overall majority in the Commons and did not always
command the voting strength to remove Lords™ amendments. The Upper House
set aside its customary restraint and caused the Government™s supporters in the
Commons to su¬er a diet of three-line Whips and late nights in the Chamber.
The Government was compelled to accede to major Lords™ amendments to
some of its bills. A Trade Union and Labour Relations (Amendment) Bill intro-
duced in the 1975“76 session was passed only after its reintroduction in the suc-
ceeding session and under threat of invoking the Parliament Acts to overcome
the Lords™ opposition. The passage of this legislation was prolonged by some
four months.
The renewed assertiveness of the Lords continued under subsequent Con-
servative Governments, and opposition parties made well-organised and
e¬ective use of the Upper House in delivering their challenge to the Govern-
ment. Cross-bench and dissenting Conservative peers not infrequently joined
them, so as to in¬‚ict defeat on the Conservative Government in its traditional
bastion. A notable instance of this sort occurred in 1984, when the Local
Government (Interim Provisions) Bill, which provided for the cancellation of
forthcoming elections in Greater London and the metropolitan counties and
the establishment of nominated bodies in place of the elected councils, su¬ered
a wrecking amendment in the House of Lords which obliged the Government
to keep the elected authorities in being until their abolition took e¬ect under
the Local Government Act 1985. In the 1984“85 session the Lords undermined
the Government™s Education (Corporal Punishment) Bill by amending it to
provide for the abolition of corporal punishment in state schools, in place of
provision for parental choice. The Government abandoned the bill and intro-
duced legislation in terms of the Lords™ amendment in the following session
(the Education (No 2) Act 1986, section 47; see now the Education Act 1996,
section 548, as amended).
Conservative Governments proved more vulnerable to defeat in the Lords
than in the Commons. Between 1979 and 1990, 148 defeats were in¬‚icted on
government bills in the Lords, and in the majority of cases the Lords™ amend-
ments were accepted by the Government or the bill was otherwise modi¬ed to
placate opposition in the Upper House. (See Donald Shell, The House of Lords
(2nd edn 1992), pp 157“8.) The House was no less assertive in the 1990s, when
defeats or the threat of them in the Lords obliged the Government to make con-
cessions on a number of bills, among them the Education (Schools) Bill in 1992,
the Railways Bill in 1993, the Police and Magistrates™ Courts Bill in 1994, the
Pensions Bill in 1995, the Police Bill and the Crime (Sentences) Bill in 1997.
646 British Government and the Constitution


In other instances the Government stood ¬rm, using its Commons majority to
overcome radical Lords™ amendments “ for example, in the Criminal Justice and
Public Order Bill in 1994.
The willingness of the House of Lords to assert its independence and vote
against the legislation of a Conservative Government should not be exagge-
rated. Although the Conservatives did not always have an overall majority of the
˜e¬ective House™ (all peers except those with leave of absence or without writs
of summons), there was generally a loyal Conservative majority among the reg-
ularly voting peers. A study con¬rming this found also that cross-bench peers
˜overwhelmingly support the Conservatives™ (Adonis, ˜The House of Lords in
the 1980s™ (1988) 41 Parliamentary A¬airs 380, 382). When a strong attack, sup-
ported by a number of cross-bench and a few Conservative peers, was mounted
on the Local Government Finance Bill (introducing the community charge or
˜poll tax™) in 1988, strenuous e¬orts by the Government Chief Whip assured the
defeat of an amendment relating the charge to ability to pay, in a huge turnout
of over 500 peers, including many who had rarely attended the House before.
It was to be expected that the Labour Government elected in May 1997 would
face a combative House of Lords. This proved to be so, the Lords in¬‚icting
thirty-six defeats on Government bills in the 1997“98 parliamentary session.
The Teaching and Higher Education Bill proceeded back and forth between
Lords and Commons, in contention on the subject of student tuition fees in
Scotland, until “ as the matter came before the House of Lords for the seventh
time “ the Government made a concession which was accepted by the peers.
(The Parliament Acts could not have been used in this instance as the bill had
begun in the House of Lords.) In 1998 the House of Lords gave a striking
demonstration of its capacity for the discom¬ture of government in repeatedly
rejecting the Government™s ˜closed list™ system of proportional representation in
the European Parliamentary Elections Bill, compelling the Government to
resort to the Parliament Acts to secure the Bill™s passage.
Even as the process of reform of the House of Lords got under way in the
course of the 1997“2001 Parliament, the Upper House continued to exert to
the full the powers available to it. The Parliament Acts were again invoked by
the Labour Government to overcome the Lords™ resistance and ensure the enact-
ment of the Sexual O¬ences (Amendment) Act 2000, providing for an equal age
of consent for homosexuals and heterosexuals. The Government™s attempt in
the Local Government Bill 2000 to bring about the repeal of the notorious
section 28 of the Local Government Act 1988 (prohibiting local authorities
from ˜promoting™ homosexuality) was frustrated by the Lords. The bill having
begun in the Upper House the Parliament Acts were inapplicable and the
Government relinquished the repealing clause in order to save the bill.
Challenges from the House of Lords to a number of other Government bills
were overcome when Lords™ amendments were reversed by the Commons, or
peers were placated by concessions, but the Government was unable to rescue
its Criminal Justice (Mode of Trial) (No 2) Bill (restriction of jury trial) or its
647 Parliament and the responsibility of government


Tobacco Advertising Bill. Following the 2001 general election the (partially
reformed) Upper House reasserted its power. In the 2001“05 Parliament, gov-
ernment defeats in the Lords were of an unprecedented frequency and wrested
signi¬cant concessions from the Government during the passage of, among
others, the Anti-terrorism, Crime and Security Bill in 2001, the Police Reform
Bill in 2002, the Criminal Justice Bill in 2003 and the Constitutional Reform Bill
in 2005. The Hunting Bill received the royal assent in 2004 only by recourse to
the Parliament Acts. In the ¬rst session of the new Parliament elected in May
2005 further defeats in the Lords compelled the Government to compromise on
provisions in the Racial and Religious Hatred Bill and the Terrorism Bill in 2005
and the Identity Cards Bill in 2006. (See further M Russell and M Sciara, The
House of Lords in 2005: A More Representative and Assertive Chamber? (2006).)
This recital of government defeats and consequent revisions of policy exacted
by the Lords may be seen as supporting the case for a con¬dent Upper House
with the ability to frustrate ill-considered or ¬‚awed legislation. On the other
hand, the unrestrained activity of the House of Lords in dealing with govern-
ment bills in opposition to the will of the Commons raises questions about the
legitimacy of a House with a largely nominated and still in part hereditary
membership.
It is aptly said by Paul Carmichael and Brice Dickson (The House of Lords
(1999), p 17) that ˜Although the Lords™ delaying power is constitutionally impor-
tant . . . there is little doubt that in the routine work of Parliament the major leg-
islative function of the House of Lords is in the examination and revision of
government legislation passed by the Commons or introduced in the Upper
House before being passed to the Commons for consideration™. The scale of this
work was evident in the long 1999“2000 session, when the Lords made 4,619
amendments to government bills brought up from the Commons. The great
majority of Lords™ amendments to government bills are the Government™s own
amendments, incorporating second thoughts or concessions arising from the
proceedings in the Lower House or the continuing e¬orts of outside interests.
For instance, in the 2003“04 session 2,915 government amendments were made
to government bills. Some other amendments are accepted by the Government
in recognition of their utility or from a willingness to compromise. In these
respects the House of Lords performs a useful revising function. Amendments
to which the Government remains opposed are generally removed when the bill
is sent back to the House of Commons, and the Lords, unless taking a strong
stand on what they regard as a matter of principle, usually defer to the democ-
ratic character of the elected House and do not insist on amendments with
which the Commons disagree.
The House of Lords carries out a necessary scrutiny and improvement of bills
which have left the Commons after an incomplete examination (in particular
when the guillotine has been applied there, or amendments are introduced at a
late stage). The House of Lords has also a useful role in facilitating the legisla-
tive programmes of government, through the introduction of less controversial
648 British Government and the Constitution


government bills in that House. But as a check and restraint upon government
the House of Lords has not enjoyed the legitimacy of a representative chamber,
and the anomalous composition of the unreformed House imported an
element of imbalance into the constitution.
The Lords have equal powers with the Commons in regard to statutory
instruments, other than ¬nancial instruments laid before the Commons only,
and have therefore a power of veto over most a¬rmative and negative instru-
ments. This power has seldom been used, but in 1968 the Conservative major-
ity in the House of Lords voted to reject an a¬rmative instrument, the Southern
Rhodesia (United Nations Sanctions) Order. The result of this unprecedented
vote was that inter-party talks then taking place on the reform of the House of
Lords were suspended. Having made their protest, the Lords approved a sub-
stantially similar Order soon afterwards. The House has generally refrained
from voting on statutory instruments, but on 20 October 1994 it agreed to a

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