Supporters of assisted dying are resigning themselves to defeat amid concerns that the landmark legislation passed by the Commons will almost definitely run out of time in the Lords. Alongside other developments, this has sparked renewed hostility towards the Upper House, with Peers accused of disregarding convention and operating outside their constitutional remit.
Whilst the question of improper conduct is complex, recent episodes have indicated a behavioural shift towards a less constrained and increasingly adversarial House of Lords. This is a perilous approach from Peers, whose ultimate existence is contingent upon the House of Commons’ support.
The Role of the Upper House
Part of our bicameral parliament, the House of Lords is seen as the revising chamber. Its role is to consider and challenge legislation, putting to work its capacious expertise to do so effectively. But Peers also yield to the democratic legitimacy that the House of Commons possesses. In this sense, although it is the Upper House, some consider it to be the subordinate one.
Peers balance thorough legislative scrutiny with the democratic primacy of the Commons with due regard to law and convention. The Parliament Act 1911, revised in 1949, allows for MPs, in the face of sustained Lords’ opposition and a one-year delay, to enact most public bills without Lords’ consent. This is the legal recognition of the Commons’ primacy, whereas the Salisbury Convention stipulates that the Lords will not block government bills relating to manifesto commitments. The Convention ensures that a government can deliver upon its electoral promises without delay or obstruction.
For those not advocating abolition, the Upper House is framed on a spectrum ranging from enthusiastic endorsement to tacit tolerance. Peers, then, must walk a tightrope to ensure that their actions are discernibly ones of good-faith scrutiny, thus ensuring the continued existence of the chamber. Whether the Lords are acting in good faith in respect of the Terminally Ill Adult (End of Life) Bill and the legislative agenda of the Labour Government is now in question, though.
The Assisted Dying Bill
The Assisted Dying Bill, a Private Member’s Bill (PMB) introduced by Kim Leadbeater MP, secured support in the House of Commons in June last year. It is now at Committee Stage in the House of Lords, where progress has slowed.
On an issue as sensitive as this, many would expect the muscles of a revising chamber to be flexed. If there is any purpose to a chamber which reviews legislation, then on a bill that’s literally a matter of life and death, the expertise and considered opinion of legislators should be welcomed. In truth, robust challenge on this bill was anticipated, with the Lords tasked with ensuring the legislation had the necessary safeguards when MPs passed it to them.
The sheer volume of amendments – now well over 1,000 – and the glacial pace of debate on these does, however, indicate that Peers have moved beyond well-intentioned improvements to the legislation. Indeed, the self-governing nature of the Lords has, in effect, permitted a small number of Peers, clearly opposed to the bill in principle, to act egregiously in grinding down the bill’s progression. Amendments such as a 12-month travel ban – as one now-withdrawn proposal encouraged – are patently about frustrating the legislation’s aims and making it inoperable in practice, not improving it. It is an example of proportionate and fair scrutiny transitioning into legislative obstruction. And is not good-faith engagement but rather filibustering with the intent of running down the clock on the parliamentary session, which would cause the bill to fall.
Despite the suggestion of some MPs, this does not amount to the Lords breaching convention. Unbound by the usual duties associated with government manifesto bills, the Lords enjoy greater freedom to scrutinise Private Member’s Bills since these bills lack an electoral mandate. It would not be unconstitutional if, in the end, Peers exercise a de facto veto on this bill.
Still, MPs are justified in feeling aggrieved at the delaying and wrecking actions which represent an Upper House willing to test the Commons’ tolerance. Whilst, in theory, they could rely on the Parliament Act, the procedural hurdles involved in returning an (almost) identical PMB are immense. Not only would it be unprecedented, but as the Hansard Society explain, ‘[i]t would take an unusual combination of circumstances, challenging to orchestrate’, for this bill to be brought back. Limited parliamentary time aside, the PMB ballot is, quite simply, the luck of the draw. In this regard, the Assisted Dying Bill has revealed a weakness in the Parliament Act safeguard for Commons’ primacy. Thus, what Bagehot described as a “suspensive veto” may, in the case of PMBs, amount to an indefinite one.
Although some MPs’ assumption that the Commons should prevail in all circumstances is contestable, the Lords should recognise the constitutional risks in protracted delays under the guise of detailed scrutiny. Such conduct must be weighed not just in terms of impropriety but also in imprudence, and it is challenging to justify Peers behaviour over the Assisted Dying Bill as an anomaly in light of other examples.
The Government’s Agenda
Labour governments face an anxiety when enacting a legislative agenda that Conservative governments rarely do. In securing the passage of bills, Labour is consistently outnumbered in the House of Lords. That remains, even in spite of the Party’s recent appointments. The conventions and rules described above provide some reassurance that their minority position won’t unduly impact a government’s political agenda, but they are no guarantee.
Similar to the Assisted Dying Bill, Labour Lords are convinced that government legislation is intentionally being slowed down in the Upper House. This appears in different forms, but most notable is the de-grouping of amendments, causing longer debates in the chamber. This alone might be tolerated, but repeated undermining of the Salisbury Convention won’t be.
On a number of occasions now, the Government has faced resistance from the Lords on clear manifesto commitments. Peers put forward amendments that, had they passed, would have frustrated the aim of removing the last of the hereditary Peers. And, more recently, the Government’s flagship employment rights legislation came under threat.
Here, the Lords were calculated, capitalising on the pressure that the Government was under to deliver the Employment Rights Act quickly. Peers even appeared willing to vote the legislation down during a heated “ping-pong” with MPs. To avoid a stalemate that would’ve caused long, undesirable delays, the Government was forced to make several legislative concessions, notably on day-one rights.
The Government ultimately succeeded in passing the law, but at a high cost. Not only did its concessions frustrate backbenchers and disgruntle trade union donors, but some of the more ambitious proposals – like the Right to Disconnect – have been kicked into the long grass of consultation. The Employment Rights Act case tested the very limits of the convention which anticipates that manifesto pledges are respected by the second chamber, and revisions are offered judiciously, contributing to a concerning trend of behaviour. When the Lords can wield this much influence over a defining election pledge, the balance of the constitution is challenged and their role stretches beyond mere revision.
Conclusion
For as long as it functions, the Lords must have the ability to scrutinise and challenge legislation. Without that, they risk becoming – as Mark Elliott describes – a rubber-stamping institution, serving no revising purpose at all. Equally, however, recent conduct implies that Peers are increasingly willing to act with less restraint than they have in the past. These actions tempt their own fate. In a very literal sense, Peers remain dependent of the MPs for their political survival. If MPs begin to feel coerced into accepting the unelected chamber’s will, then calls for reform will only intensify. In so doing, the Lords may be inadvertently legislating for their own demise.
Declan McLean.
Declan McLean is a PhD student at Cardiff University. His research focuses on the future of the UK’s territorial constitution. He has worked in the Scottish and UK Parliaments and as a Researcher at the University of Glasgow’s Law School.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.