The powers of the Lords and Commons compared
The relative powers of the two chambers reflect their different functions (such as the Commons’ role in confidence and supply) and legitimacy. The Commons has primacy because it has the democratic legitimacy
which the Lords lacks. However, it is helpful to consider two aspects of legitimacy:
■ Input legitimacy concerns the composition of an institution and its responsiveness to citizens’ concerns as a result of participation by, and representation of, the people.
■ Output legitimacy concerns the quality and effectiveness of an institution’s performance and outcomes for the people.
The Commons has input legitimacy because of its composition (it is directly elected and accountable to voters), whereas the Lords has output legitimacy because of what it delivers (its scrutiny and revision produce better quality legislation).
The exclusive powers of the House of Commons
Most of the powers and functions of Parliament are shared by the two houses. There is one important area, however, where the Commons has exclusive authority — to give consent to taxation and public expenditure. Since the Commons represents the taxpayer, there is a tradition that although the Lords debates money bills, it cannot interfere with them. For this reason the Chancellor of the Exchequer is obliged to sit in the Commons, where the annual budget is always presented.
Another area where the Commons can exercise power is the situation known as confidence and supply. This can occur in the event of a minority government, where the governing party does not join a formal coalition, but relies on a limited agreement with another party (or parties) to keep itself in office. This means that the supporting party will provide backing on a vote of no confidence, and will vote through the government's budget (the 'supply' part of the arrangement). In return the smaller party will receive certain concessions. It is an agreement that is more flexible (and thus less stable) than a full coalition. This happened in 1977-78, when James Callaghan's minority Labour government concluded the lib–Lab Pact' with the smaller Liberal Party. There was talk of the SNP supporting a minority Labour government on these terms, had the 2015 election resulted in a hung Parliament. It happened again in 2017 when Theresa May's government lost it majority and agreed a confidence and supply arrangement with the DUP.
The main powers of the House of Lords
The Lords is definitely less powerful than the Commons, as suggested by one of its informal alternative names, the 'second chamber'. Since the early 20th century, when the UK started to become more democratic, its powers have been limited by both law and convention. It is widely accepted that this is appropriate, since it lacks the democratic legitimacy of an elected chamber.
The most important legal restraints on the power of the Lords are provided by the Parliament Acts of 1911 and 1949. The first of these came about when the Lords broke with the convention, established since the late 17th century, that they should not interfere with matters of taxation. Aristocratic outrage at new taxes on land and wealth, proposed in the Liberal government's `People's budget' of 1909, led the Lords to break with this tradition. By rejecting the budget they brought about a prolonged constitutional crisis, which was resolved by the passing of the Parliament Act two years later. This set out in law that:
· the Lords had no right to delay money bills
· its power to veto non-financial bills was to be replaced by a power of delay lasting two parliamentary sessions (equivalent to 2 years).
Clement Attlee's Labour government, faced with opposition from the Lords to its iron and steel nationalisation bill, used the 1911 Act to push through a modification, halving the length of time that the upper house could use its delaying power. This was embodied in the 1949 Parliament Act.
The power of the Lords is also constrained by the 1945 Salisbury convention, a convention agreed shortly after the election of the Attlee government. Named after the Conservative opposition leader in the upper house, Lord Salisbury, the convention stated that the Lords would not oppose a bill that gave effect to a commitment contained in the manifesto of the winning party at a general election. The convention was a response to the election of Britain's first majority Labour government, which was committed to a radical reforming programme.
The Lords, then, has the following distinctive powers:
· It acts mainly as a revising chamber, proposing amendments to government legislation, which it is up to the government to decide whether to accept or reject.
· It can delay non-financial legislation for 1 year.
· The only scenario in which the Lords retains its veto is an extremely unlikely one: if a government were to attempt to prolong the life of Parliament beyond its legal maximum term of 5 years, the Lords is legally empowered to force it to hold a general election.
Debates about the relative powers of the two houses
Although the formal powers of the Lords are quite restricted, as with so much else in British politics, what the upper house can actually do depends to a large extent on the particular circumstances of the time. In recent years some commentators have argued that the Lords is becoming more assertive in its relationship with the elected chamber.
The removal of most hereditary peers from the Lords in 1999 meant that the upper house was now dominated by life peers, who had mostly been appointed for service in different walks of life. This increased the Lords' sense of legitimacy. Life peers were also more likely to play a regular part in the work of the House, whereas many hereditary peers rarely appeared at Westminster. As a result the reformed House was more inclined to challenge the government.
Another consequence of the departure of most hereditary peers was that the traditional dominance of the House by the Conservative Party came to an end. No party now has overall control of the Lords and so careful management of the House has become more important for governments. Liberal Democrat peers demonstrated growing independence during the period of the New Labour government. For example, after the 2005 general election, they opposed Tony Blair's proposals for identity cards, even though this policy had been announced by the Labour Party in advance. They argued that the Salisbury convention no longer applied because the government had been re-elected on a very low share of the popular vote (only 35.2 per cent). The formation of the coalition government in 2010 cast further doubt on whether the Salisbury convention still applied. This was because the government programme was based on a coalition agreement — between the Conservative and Liberal Democrat leaders — that had never been put to the voters.
Cross-bench peers also began to play a more important role in holding the government to account. As neutral figures, they are more likely to assess a bill on its merits and to decide accordingly whether to support or oppose the government. For example the cross-bench peer Lord Owen, a former doctor, played a leading role in opposing the coalition government's controversial Health and Social Care Bill. The measure was passed in March 2012 after the government accepted all the amendments proposed in the Lords.
How does the Commons maintain its supremacy?
Although the Lords is clearly more assertive, the Commons remains the dominant house. The two houses are not always in conflict with each other — in fact, many amendments in the Lords are sponsored by the government itself, on occasions when it belatedly notices flaws in its own legislation. But when clashes occur, the government can usually make use of its majority in the Commons to overturn critical Lords amendments if it chooses to do so. In February 2012, for example, the coalition government rejected seven amendments to its Welfare Reform and Work Bill, arguing that only the Commons was entitled to take decisions with large financial implications.
A bill can go back and forth between the two houses in a process known as 'parliamentary ping pong'. An extreme example of this was the debate between the two houses on the 2005 Prevention of Terrorism Bill, which introduced control orders. This entailed a marathon sitting of 30 hours. The Lords wanted the bill to include a 'sunset clause' — in other words it would automatically expire after a year unless further legislation was passed to renew it. In the end it is up to the government to decide whether to accept or reject any changes proposed by the Lords. In the case of the Prevention of Terrorism Bill, the Lords backed down following a compromise: the government promised a review a year later.
If the upper house maintains its opposition to the Commons, as a last resort the government can use the Parliament Act to force a bill through. This is rare, but it was used three times by the Blair government:
· changing the voting system for European Parliament elections (1999)
· equalising the age of consent for gay and heterosexual people (2000)
· banning hunting with dogs (2004).
In practice, the Lords will usually drop its opposition after making its point, recognising that it lacks the democratic legitimacy needed to push its case further. The following case study illustrates the willingness of the Lords to take a stand on an issue, but also the self-restraint that usually prevails in clashes between the two houses.