Law, conventions and practices

I have just received my copy of the second edition of Parliament and the Law, edited by Alexander Horne and Gavin Drewry.  I have contributed a chapter, with Lucinda Maer, on ‘Relationship between the two Houses’.  That relationship is shaped by the acceptance of the House of Lords that the House of Commons enjoys primacy and is characterised by constraints on the Upper House and by co-operation.

The constraints are to be found in statute, convention and practices.  The first of these is straightforward, with the Lords constrained by the Parliament Acts.  Conventions are rules of behaviour that are accepted as binding by virtue of constituting right behaviour.  The defining characteristic is that they are invariable.  The most obvious convention constraining the House is the Salisbury convention, enunciated in 1945 by the then Viscount Cranborne, but one derived from the referendal theory developed by his grandfather, the 3rd Marquess of Salisbury.  Practices are exactly that and are distinguishable from conventions in that they constitute behaviour that is normal but not invariable.  Falling under this heading are ‘ping pong’, financial privilege, statutory instruments and getting the Government’s business in reasonable time. Though some tend to elevate one or more to the status of convention, there is nothing that binds either House.  Even in respect of ‘double insistence’ in conflicts between the two Houses, there is, as Erskine May records, no binding rule which governs proceedings in either House.

Both Houses constitute essentially discrete entities – the principal method of contact is by message – and conventions and practices have been developed in order to ensure that the relationship works relatively smoothly.  There is a large element of trust.  There are occasional tensions but, on the whole, it is a mature and effective relationship.

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About Lord Norton

Professor of Government at Hull University, and Member of the House of Lords
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3 Responses to Law, conventions and practices

  1. Dean B says:

    I’d like to ask a question on this topic if I may: how important do you regard the Lords’ power to delay legislation? How would you look upon any proposal to remove this power?

    The reason I ask is this: most proponents of an elected second chamber deploy an argument along the lines of: it’s unacceptable for those who make our laws not to be elected. I’ve always taken issue with the phrase “make our laws” in this context, since I see the Lords’ revising role really as only a very sophisticated and formal mechanism for advising the Commons. The Commons take advice from many sources in the course of considering a Bill, almost all of which are not elected. None of these other sources are considered to be “making” the law, just advising those who do. I see the Lords in a similar light, as their amendments can always ultimately be overturned by the Commons. So if they are not “making” law, just advising the Commons, there is no overwhelming requirement for them to be elected.

    But the delaying power does slightly complicate that. In those rare cases where the The Parliament Act is invoked, the Lords’ delaying power means that, for a short time, the House of Lords are directly affecting what is and is not on the statute book, so in a broad sense, they are making the law. If this power were removed, and the Lords’ sole power was to amend bills in ways in which the Commons could overturn – i.e. they only had the power to ask the Commons to “think again” – then wouldn’t the main argument of those who seek an elected chamber lose most of its effect?

    • Croft says:

      I’ve thought for a while that the logical consequence of the foolish Fixed Term Parliament Act is that the Lords’ veto either need to be restored back to 2 years or perhaps that the PA can’t be invoked during the last year of a parliamentary term. This is because the effective length of a parliament is now 5yrs where previously it was on average <4yrs.

      On the post above's point arguable the Lords has more power over SIs etc precisely because they can't be overruled.

      • Dean B says:

        Thanks for your reply, Croft. You are absolutely right to draw my attention to statutory instruments. They definitely fall under the description of “making law”. There have of course already been proposals to change the House’s powers in this regard – not necessarily scrapping them but perhaps treating them more like primary legislation (e.g. Lords could amend but not reject outright?)

        I am interested on any thoughts on the principle of my proposal though, namely that if the “law making” powers were removed, the case for election would go away. Anyone have any thoughts on whether that’s a) correct or b) desirable?

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