The weather in the UK this week has wreaked havoc with travel. I managed to get back from Westminster to Hull late on Wednesday night, travelling as I normally do on the last Hull Trains service. The train made it, eventually, sometime after midnight. I could not help smiling, though, when the train manager apologised for the delay:
“Ladies and gentlemen, I am sorry for the delay to your service this evening. This was caused by a late departure from King’s Cross because of the weather and because the driver needed a rest between shifts. We were further delayed at Grantham, and at Retford, and by being diverted from Doncaster to go via Goole, and then having to return to Doncaster because of a points failure at Goole; and then at Selby because the signalman had gone home, having been told we were going via Goole.”
Given all this, the surprising thing was that we got in to Hull only an hour and 16 minutes behind schedule. I was just glad to be back. Full marks to Hull Trains for actually getting us through – and for their faultless on-board communication.
Every so often, one sees in the press or on Twitter someone claiming that the House of Lords does not represent value for money. This will often derive from the figures published for the annual cost of the House or the daily allowance that may be claimed or is claimed. Some of the criticisms are based on a misunderstanding of the figures – the cost averaged out per peer is not the figure it will cost the public purse if a new peer is created, for example – but there is a more fundamental point. There is no clear criterion or criteria offered by which to assess value. Some academics have sought to work out the value of peers by the number of speeches made or questions tabled, but that is to mistake quantity for quality. Speeches or questions tell one nothing about the value of the House in terms of public good.
Two of the principal functions of the House are legislative scrutiny and calling the government to account. In a parliamentary session, it is not unusual for several hundred amendments to be secured to Government Bills in the House of Lords. (In the 1999-2000 session, it was closer to 5,000.) Most of these are moved by Government, but – as the research of Meg Russell has shown – many if not most will have their genesis in amendments moved at earlier stages by backbenchers or members of the Opposition front bench. Some of the amendments make substantial differences to Bills. I recall the campaign to get rid of Schedule 7 of the Public Bodies Bill. Had that been enacted, it would have thrown a large number of public bodies, including some quasi-judicial bodies, into potential turmoil for years. How do you place a monetary value on avoiding that? If one could, one then need to work out the value in monetary terms of all the other changes achieved by the House.
And what value does one place on good government and ensuring the Government does not become overly powerful? The Lords has been particularly vigilant in respect of ministers seeking powers through Henry VIII provisions, enabling them by order to amend primary legislation. I have made the point elsewhere that whereas the House of Commons is characterised by the politics of assertion, the House of Lords is characterised by the politics of justification. It helps ensure that ministers seek to explain and justify their actions. It can serve as an important deterrent.
The statute book may not be perfect and Government may not be about to win prizes for being the very best, but the statute book would be in a far worse state, and the quality of Government much diminished, were it not for the work of the House of Lords. It is impossible to place a monetary value on what it does. If one could it would help put claims about the value of the House in perspective.
In an earlier post, I drew attention to my article, ‘Legislatures and the Courts: The importance of place’, published in the Journal of International and Comparative Law. It identifies the importance of place – where institutions are based can affect the relationship between them. It examined the effect of moving the UK’s highest court of appeal from the Palace of Westminster to the Supreme Court on the west side of Parliament Square.
The publishers have now published a list of featured articles drawn from the journal. You can see the list here. Mine, I am pleased to report, is the lead article. Perhaps more importantly, the list links to the text of the article, for those who may be interested in reading it.
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.
I have just received the answer to a question I tabled about what was the earliest date the two Houses could decant the Palace of Westminster if both Houses voted for that option and what was the estimated cost to the public purse of for repair and maintenance of the Palace in the period between now and decanting. You can read the full answer here.
The essential points from the answer are that the earliest we could move out will be 2025 and that over the next five years the cost of repairs and maintaining the Palace will exceed £400m. It seems fair to assume that with the cost for the period between 2021/2 and decanting added to that figure, the cost to the public purse of maintaining the Palace before we decant will be more than £500 million.
The figures may prove to be conservative estimates. As the answer from the Senior Deputy Speaker concedes ‘It is possible that reactive maintenance costs may rise in future as the condition of the Palace continues to deteriorate.’ Keeping the Palace in a fit state of repairs appears to be a case of running in order to stand still – there are myriad works going on – and the Palace could at any point between now and getting out suffer a catastrophic failure of one or more essential services.
Both Houses should have voted on the issue at least a couple of years ago, but the debates kept being delayed. There will now be a debate next month. There is a need to treat the issue with a greater seriousness, and urgency, than we have seen to date, both for the welfare of those who work in the Palace and for the impact on the public purse. That impact will be even greater in terms of the decision as to whether to go for a full or partial decant of the Palace. Delaying the decision has not been cost free.
Each year. I table a parliamentary question asking how many items of correspondence were received in the Palace of Westminster in the previous year (and, of these, what proportion was received in the House of Lords). I have just received the answer to the one for 2017. The data demonstrate a clear trend. There has been a notable decline over time, with marked reductions in some years, but with the volume of correspondence in each year being smaller than in the previous year. In 2005, there were over 4.7 million items of correspondence. This past year, it was just over 1.6 million.
The figures for 2005 onwards are (with the percentage going to the Lords in parenthesis):
2005 4,733,000 (estimate) (20%)
2006 4,789,935 (no % given for the Lords)
2007 4,199,853 (20%)
2008 4,135,144 (15%)
2009 3,540,080 (25%)
2010 3,082,187 (25%)
2011 2,691,576 (25%)
2012 2,544,019 (25%)
2013 2,490,256 (25%)
2014 2,234,763 (25%)
2015 2,200,504 (25%)
2016 1,652,317 (30%)
2017 1,633,770 (30%)
The decline in snail mail has been more than compensated for by the increase in e-mail. Individuals and organisations wanting to contact MPs and peers have recourse to electronic rather than paper communication, replete with attachments. No data are kept on the volume of e-mails flowing into the Palace, so it is not possible definitively to show the increase, but parliamentarians are conscious of the mounting volume of electronic mail that now clogs in-boxes and makes it difficult to discern the important from the not so important, the irrelevant and the bizarre.