 CANADA The Special Senate Committee on Senate ModernizationConsideration of methods to make the Senate more effective within the current constitutional framework: Issue 11 32nd Meeting, April 5, 2017, 2017 Witnesses: The Right Honourable The Lord Wakeham DL, House of Lords Navita de ventis, de tauris narrat arator;
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The Special Senate Committee on Senate Modernization met this day at 12 p.m. to consider methods to make the Senate more effective within the current constitutional framework. 1 Senator Thomas J. McInnis (Chair) in the chair. 2 The Chair: Honourable senators, I call this meeting of the Special Senate Committee on Senate Modernization to order. 3 During this phase of its work, the committee is focusing on the role of the Senate in Canadian governance and its relationship with the House of Commons. In particular, we are looking at how the Senate can best complement the House of Commons without either duplicating or overpowering it. 3-1 In looking at this issue, our committee is looking for expert perspectives on the House of Lords and its relationship with the House of Commons. The conventions, practices, rules and expectations that structure the relationship are of particular interest. 3-2 Today we are honoured to have as witnesses The Right Honourable The Lord Wakeham DL. He joined the House of Lords in April of 1992. A member of the House of Commons from 1974 to 1992, Lord Wakeham was the chairman of the Royal Commission on the reform of the House of Lords, which, in January 2000, published A House for the Future. 3-3 The Wakeham report, as it has come to be known, made a number of recommendations for reforming the House of Lords, including the creation of the House of Lords Appointments Commission. The report also outlined a role for the House of Lords within British parliamentary governance and discussed how, as an unelected body, it should relate to the House of Commons. 3-4 The Lord Norton of Louth joined the House of Lords in August of 1998. He is an expert on the U.K. Parliament and the author of several books and articles, including Parliament in British Politics. Lord Norton is also a professor of government in the school of politics, philosophy and international studies at the University of Hull and has a PhD from the University of Sheffield. He currently serves on the House of Lords Constitution Committee and continues to write publicly about constitutional matters on his personal website, The Norton View. 3-5 Professor Meg Russell is Director of the Constitution Unit, Department of Political Science, University College London. She appeared before the Special Senate Committee on Senate Modernization last April when she discussed the role of cross-benchers in the House of Lords. Professor Russell is a globally recognized expert on the House of Lords, upper chambers in bicameral Parliaments and in comparative bicameralism more generally. She has written extensively on upper chamber design and reform, including A Stronger Second Chamber? Assessing the Impact of House of Lords Reform in 1999 and the Lessons for Bicameralism. 3-6 We have our three witnesses here by teleconference, and I believe the sound is working well. 3-7 I'm not sure if our witnesses have written presentations. You do? Who would like to proceed first? 3-8 Rt. Hon. Lord Wakeham, DL, House of Lords: Well, shall I start, if I may? 4 First of all, we're delighted to come along here and to talk to you and hope that what we say about the British House of Lords and House of Commons is of some value to you. 4-1 I went into the House of Lords as a life peer just about 25 years ago, and the day I arrived I was made the leader of the House of Lords which was then, very substantially, a hereditary body. Since those days things have changed and we now have roughly about 100 hereditary peers out of a total house of some 850. 4-2 This has made some difference to the way things happen, but I don't think it has made quite as much difference as a lot of people thought it was going to make. There is now, for instance, I think, a general agreement that no government should have a majority in the House of Lords. Every government we're likely to have, in my view, is going to be in a minority position in the House of Lords, and that, of course, obviously has some constraints on what it can get through. 4-3 My view also is that there is no government that is very likely to give up what we call the prerogative rights, that is, to ask the sovereign to appoint new peers to the house, but I think there is a possibility now that they may agree to restrict that right if they can get some clear understandings that the conventions upon which we operate continue into the future. 4-4 Talking about the House of Lords, both before and now, it is still a very effective revising chamber. It looks at legislation in, I would say, more detail than the House of Commons does. It studies it very much more carefully, and in some ways it's more effective than the House of Commons at looking at the detail. Many amendments are made in the bills when they are going through the House of Lords which are accepted by the government, because the government has been persuaded that this will be an improvement to the bill. 4-5 The amendments that are not agreed in the House of Lords, where the opponents of the government win, then go back to the Commons to be considered again, and assuming that the House of Commons passes them again and they come back to the House of Lords, it is less likely now that the House of Lords will not accept the view of the House of Commons for a second time round. 4-6 It's increasingly likely, I think, in the house, of course, and it's increasingly the view in the House of Lords, that the greater authority of the elected house over an appointed house has to be recognized if it's going to work. The House of Lords used to have members all, or nearly all, who were retired great leaders of our nation. They were members of the House of Lords. This has dropped off very considerably. In fact, there are now no ex-Prime Ministers in the House of Lords. It's the first time in my lifetime that's been so; the last one was Mrs. Thatcher, and all the Prime Ministers since then have not gone to the House of Lords, although they could obviously get there if they wanted to. I'm not quite sure the reason for it. The reason some people give is that they don't want to have to declare their earnings, which are pretty substantial when they are ex-Prime Ministers and therefore they get on with that rather than appearing in the House of Lords. 4-7 That doesn't mean to say that we don't have some problems in the House of Lords. The House of Lords is thought, I think, by all of us that it's gotten too big. I think this is probably more of a perception problem than a real one, but it is a problem, and any ways of reducing it, which we are actually looking at at the moment, are going to take some time. I think we might hopefully be able to achieve something. 4-8 Lord Norton of Louth, House of Lords: The point I would make is that the relationship between the two houses is shaped fundamentally by the realization that the Commons is superior to the Lords in that it is elected. The House of Lords is not, and therefore the Lords seeks to fulfill functions that will not conflict with the Commons, but rather sees itself as adding value to the political process by fulfilling functions that are complementary to the elected house. So we don't seek to conflict with it, neither do we see to duplicate what it does. 5 The Lords fulfills functions that essentially the Commons may not have the political will to fulfill, may not have the time, or indeed the resources. 5-1 My essay "is based on the assumption that within our federal government it is our Senate that should be enabled to (1) provide desired foresight and (2) do the, frequently highly complex, problem solving needed for providing valuable advice to our elected legislature as well as other parts of our government." It also outlines how our Senate may tackle these tasks by a well thought-out expansion of its investigative role, see here ff. n5-1
With the functions it does fulfill, it's generally regarded as fulfilling them well. When there's talk in this country about reform of the House of Lords, it is not focused on functions. It's focused on composition. When there are attempts to reform the house in terms of composition, it's premised on the basis that the Lords does a good job, there are appropriate functions for a second chamber, and that the house should continue to fulfill them. 5-2 At the core of those functions, as Lord Wakeham indicated, is legislative scrutiny. The house will accept the ends determined by the House of Commons, so we would not vote on a government bill normally under second reading on principle. We focus on the details. So it's means that we address, looking in great depth at each bill that comes before us. That scrutiny, as Lord Wakeham indicated, is generally regarded as being thorough, more effective than the Commons in changing the details of the bills, changes that are generally acceptable not just to the house but to government and therefore to the House of Commons. So each parliamentary session, anything between a few hundred to sometimes a few thousand amendments are secured to government bills in the House of Lords. 5-3 The reasons why the house, I think, is seen as being effective in fulfilling its functions are to do with composition and procedures. Composition is important collectively and individually. It is collectively in that, as Lord Wakeham has indicated, no one party has an absolute majority in the house. The government, therefore, has to take the house seriously to get its business. That shapes the relationship between the house and the executive in a way that's very different to the House of Commons. 5-4 The House of Commons, I characterize as determined by the politics of assertion. The House of Lords is characterized by the politics of justification. So the ministers have to persuade, they have to justify their measures, they have to engage. They cannot afford to be overly adversarial. Collective composition is important and so is the individual composition, the members who are appointed. It's essentially a house of experience and expertise. 5-5 Nicely put: "politics of assertion" complemented by "politics of justification." Cf. desire and necessity; heart and head. n5-5
So members appointed, like Lord Wakeham, have extensive experience in government. Others have served in positions in the arts, sciences, in government itself, cabinet secretaries or chiefs of the defence staff in the Armed Forces. Others are appointed because they are the experts in their field. They are highly trained, reached the top of their profession in the law, medicine, different fields. Quite a number of members, such as myself, are professors. That enables the Lords to look at issues in a way that is different from the House of Commons, a different perspective, which adds value. 5-6 "Others are appointed because they are experts in their field," which most importantly includes a variety of sciences and technologies. n5-6
And then apart from composition, it's procedures. The Lords has procedures the Commons does not have. We debate all amendments that are put down for, that are tabled. With the Commons, the chair has to select which amendments will be debated. We debate them all. We do not have timetable motions as the Commons does, so there isn't a limit on debate. We will debate amendments for as long as they need to be debated. 5-7 There are a number of other procedural rules as well, which benefit the house, so we have the means but we have the people who are able to utilize those means effectively to fulfill those functions. And as I say, they are complementary to the role of the Commons. 5-8 The only other point I would make about the detailed scrutiny of legislation is it's not just detailed scrutiny of primary legislation, that is bills brought forward, but also delegated legislation. We have a rather large volume of secondary legislation. The Lords has dedicated committees for dealing with that. The House of Commons does not. So the Lords' scrutiny of primary and secondary legislation adds to the value of Parliament. 5-9 Meg Russell, Director, Constitution Unit, Department of Political Science, University College London, as an individual: It's very nice to be back with you again for what appears to be my annual visit. Thank you for inviting me, and I'm delighted to be on such a distinguished panel with two such senior members of the House of Lords. 6 Your question was about the relationship between the two chambers, and I'm surprised that Philip Norton hasn't said a bit more about this. I'm sure we'll get more into detail on it with respect to the conventions that govern the relationship between the two chambers, particularly with respect to legislation. 6-1 There are some very well-known conventions, the so-called Salisbury-Addison Convention about the House of Lords not blocking government manifesto policy, but on a more day-to-day basis, the restraint by the House of Lords on legislation goes much further than that, as Philip has referred to, it conventionally doesn't block government bills in their entirety at the second reading or the third reading. Indeed, it rarely votes on those things at all. It focuses more on the detail. 6-2 Salisbury-Addison Convention. (Permits the downloading of the full report.) n6-2
There is also a more contested convention with respect to the ability of the House of Lords to block, to veto secondary legislation, which it does occasionally, but this is considered appropriate only in exceptional circumstances. There has been quite a lot of argument about that in the U.K. in the last couple of years. 6-3 The relationship between the two houses, the differences between them, is fundamentally governed by convention on some really big things that we don't even normally think about, such as the fact that for a long time it was considered only appropriate that the Prime Minister should be drawn from the House of Commons, that most senior ministers should be drawn from the House of Commons. All of these are purely matters of convention. 6-4 There's a lot of constraint by the House of Lords and there's a strong sense that the House of Commons is the senior chamber. 6-5 I think there are some subtleties in that relationship that are worth drawing out. First, why is this the case? The most obvious answer is that the House of Commons is elected and the House of Lords is not. But I think if you look back historically, there are some important factors to bear in mind. Historically, as John Wakeham has referred to, the House of Lords was almost entirely hereditary until 1958, and it remained largely hereditary until 1999. In that respect, it clearly had some legitimacy problems, compared to the House of Commons. 6-6 Crucially, it was also dominated by the Conservative Party until a reform in 1999, which removed the majority of hereditary peers. So it presented a particular threat to governments of the left, Liberal and labour governments. And the restraint that it exercised throughout the 20th century was a lot about a Conservative House of Lords, it not being appropriate for it to meddle in and block legislation from a Liberal or Labour government. 6-7 In fact, peers in the House of Lords could in some ways be more active, be more fierce to a Conservative government, because that would be an internal Conservative Party disagreement, but they needed to show restraint with respect to governments of the left. Now, of course, as has already been referred to, the chamber is much more party politically balanced. 6-8 With respect to conventions and the importance of them in our system, I would emphasize that our conventions about the relationship between the two houses have developed over a very long time. The key rules governing the relationship between the two houses are not legal rules, but they are political ones. They are political judgments. Understandings about the appropriate relationship between the two houses become established in people's minds, in politicians' minds, in the minds of journalists and academics. In terms of the sorts of limits of acceptable behaviour by the upper house, people may not even fully rationalize why they hold these views, but they become quite fixed and difficult to shift. So the changes that happened in 1999 didn't fundamentally change the relationship between the two houses. But conventions are, by their nature, fragile. They can move over time. They can gradually erode, and they do have the potential to, in extremists [extremis?], completely collapse, unlike legal restraints. 6-9 I would emphasize that the relationship between the two chambers is subtle in other ways. It's important not to simplify and see the two chambers as blocks, House of Commons versus House of Lords, or House of Lords versus government. They are both complex organizations. They both have representatives of the same political parties in them. There are connections between those parties, between the chambers. 6-10 As has already been referred to, the culture in the two chambers is really quite different. Rhetoric in the House of Commons is political; in the House of Lords, it's much less so. A key aspect of debate in the House of Lords is the need for ministers to give rational explanations of why they are doing what they are doing, not just appeal to party sentiment. In that, particularly important is the presence of the many cross-benchers, the independent peers, who can hold the balance of power in the House of Lords and listen very carefully to rational arguments. 6-11 My Senate essay's Appendices A and B contain a debate in the Commons, where some things are said over and over again, and a debate in the Senate. There is a vast difference between them, to put it charitably. n6-11
But in terms of the relationship between the two chambers, the thing that is always most important to ministers is to retain the support of their own side, particularly their own side in the House of Commons. All the House of Lords can really do in the end, if it defeats the government on something, is send a matter back to the House of Commons for reconsideration. It's essentially asking the House of Commons, "Are you sure you want to do this?" 6-12 That question is primarily targeted at government backbenchers in the Commons who will make the decision. The government will give into the Lords when there's discontent on its own backbenchers. Where it's supported by its own backbenchers, it will normally stand firm and be able to get its way. 6-13 So it's not pressure from the Lords in itself that forces government to change its mind; it's internal party pressure, and public and media pressure. 6-14 There are relatively few reversals of policy resulting from visible resistance by the Lords. But that doesn't mean that the chamber is weak and not listened to. Ministers actually spend a lot of time thinking in advance as to how the House of Lords will respond to things. Sometimes, for example with respect to delegated legislation, orders will be withdrawn before a vote in order to avoid a defeat, which is quite interesting, because that's a sign that ministers have to work hard to retain the convention that those orders are not vetoed by the House of Lords. It's not just for the House of Lords to police those conventions. 6-15 Clarifcation: Laws conceived through delegated legislation require approval from the Act of Parliament to pass. Delegated legislation grants certain authorities rulemaking power on a narrow range of subjects. Authorities, like agencies in the United States, create rules under the assumption they possess critical knowledge and expertise in those areas. Prerogative legislation gives the Crown limited rulemaking powers too. Royal government leaders possess the power of creating new laws, provided Parliament approves. Parliament functions as the lawmaking body in the United Kingdom; like Congress, it passes, amends or rejects laws and regulations. Delegated legislation allows expedited law review, revision and passage. It uses statutory instruments, church measures, hybrid instruments and special procedure orders for establishing laws. n6-15
Most delegated legislation passes through statutory instruments, which number approximately 3,000 each year. These instruments, called SI, often exist as orders. Parliament accepts or rejects SIs through an affirmative procedure or a negative procedure. Affirmative procedures require explicit approval from both Houses of Parliament. Negative procedures create laws without an official Parliamentary consensus, but allows repeal of order, by either House, through resolutions. (From: www.reference.com) n6-15A I would emphasize that our conventions have a very long and complex history. It's important to emphasize that understandings of what's acceptable political differ widely culturally around the world in different political systems. It's a very general point from comparative politics that what works in one country cannot necessarily readily be imported into another, and I think this is probably truer of convention than of any other thing. 6-16 Lord Wakeham: I would add one thing to what has been said. It's quite interesting. The Salisbury Convention, the name we give to the view that the House of Lords will not vote against the second reading of bills that have been passed by the Commons, really arose after the war. There was a very large Conservative majority in the House of Lords, and the leadership of the Conservative Party in the House of Lords realized that unless they acted with restraint, there would be serious difficulties about how the House of Lords could continue. Therefore, they brought in this convention in order to control their own backbenchers. It wasn't the government doing it. It was the opposition saying, "Look, we have to be sensible." 7 May remind one of the "nuclear option" to make the U.S. Senate toe the line. n7
You can see that also in the way the House of Lords has acted over the years. There has been a sensitivity that because we're not elected, particularly when it was largely hereditary, we had to exercise proper restraint. Otherwise, the place was not defensible. So restraint was always part of the process in the House of Lords. 7-1 The Chair: Interesting. Thank you very much. We have quite a list. We will start with our deputy chair. 8 Senator Joyal: I will start with Lord Wakeham. When you released your report in 2000, I had the opportunity to meet you at the Canadian High Commission in London whereby you were invited by the commissioner at that time to explain the impact of the report. My first question will be for you, but I would like to say to Professor Norton that we share the pride of both being alumni of Sheffield University, where I graduated almost the same year as you, so it gives you an idea of my age. 9 Professor Russell has been a very faithful attendee of the seminar of the constitutional unit of the University of London, and as you said, you are a regular. I think you could probably be the "expert-in-residence" for the Canadian Senate in relation to our modernization study. 9-1 My first question is to Lord Wakeham. I would like to quote you from your own report. At chapter 8, entitled "Holding the Government to Account," you wrote: 9-2 Our ambition for the reformed second chamber is that it should enhance the overall ability of Parliament as a whole to hold the Government to account. It should do this by using its particular strengths to develop arrangements which complement and reinforce those of the House of Commons. 9-3 On that basis, my first question to you is: What is the role of the various political parties that are represented in the Lords? Specifically, what is the role of the opposition party—the one party that faced the other party that might constitute the government majority in the House of Commons? 9-4 Have you seen over the years an evolution of the role of the parties in the Lords? My question could be certainly commented on by any one of you. 9-5 Lord Wakeham: Nice of you to remember my report and remember us meeting all those years ago. The report was received with great enthusiasm by everybody, and then they did nothing about it. That's one of the difficulties with reforming the House of Lords: There's lots of talk about it, but when it comes down to it, governments are not very keen on legislating, because it's quite often controversial and there are plenty of other things on their agenda. 10 No, regarding the House of Lords, I wanted and thought that its role could be enhanced. I think it has been enhanced, because I think we have now more experts in there. The revising done in the House of Lords is now at a very high standard, but it does require a certain amount of constraint. In other words, there is no point in fighting the battles that have been fought and won in the House of Commons. 10-1 I must keep belabouring the point that we, too, need more experts in order to achieve cognitive diversity in contrast to the fashionable strife for identity diversity as discussed in my essay, here. Lord Wakeham mentioned that the British House of Lords has about 850 members. They are mostly cross-benchers and Lord Hope told us a great deal about their functioning and also that they draw no salaries, which limits their attendance because their time is valuable for making a living. n10-1
The House of Lords works if you accept that the government of the day has a majority in the House of Commons, have been duly elected and are entitled to get the major parts of their program through. We do our best to improve what they're doing. That works pretty well, but it does require restraint. 10-2 One also has to remember that the present government is in a minority in the House of Lords, but if there were a change of government and a Labour government came in, they would be in exactly the same position. At the moment, in the House of Lords, the labour Party actually decides when they will have a vote and when they will win. We can't win. If they want to have a vote, they will defeat us. They are restrained in their own minds, because they don't want to defeat us too often because that keeps reminding everybody they are unelected. They change legislation and send it back to the House of Commons on things they feel really strongly about, and then the House of Commons debates it again, sends it back to the House of Lords and then they leave it. Usually, the House of Lords will pass it the second time through. 10-3 It does a good job, but it hasn't changed as much as I wanted it to change when I brought in my proposal some 20-odd years ago. 10-4 Lord Norton: Your point about holding government to account also identifies a separate function to that of legislative scrutiny: questioning government about its actions and policies. The Lords has the procedures and membership to do that. There are opportunities for members through question time, through initiating debates and through select committees. We use select committees the same as the Commons, but we don't want to duplicate departmental select committees, so we have cross-cutting committees, covering things like the Constitution. 11 We can question and tease out of government the reasoning behind whatever it's doing. The mechanisms are procedures to facilitate that, both in the chamber and increasingly through committees. The committee reports are generally seen as quite authoritative, evidence-based and really do shape debate. It doesn't involve necessarily votes in the chamber. It's rather informing government; it's informing the Commons' wider political opinion. As I say, it's seen as informing debate and has been quite influential within the house itself, but also much wider, including indeed, scrutiny of the European Union, where the European Union committee is generally regarded as doing an excellent job in scrutinizing proposals for a union. 11-1 Ms. Russell: If I may, I would add just one very tiny amendment to what Lord Wakeham said about the government having a majority in the House of Commons and therefore the right to get things through. 12 I would say, yes, so long as it can retain its majority in the House of Commons. 12-1 Lord Norton: Absolutely. 13 Ms. Russell: An important bit of context is that, as Philip Norton was the first chronicler of this, government MPs in the House of Commons have over the decades become, partly through better education and the changing nature of the broader political environment, more and more independent-minded and willing to challenge their leaderships. 14 I would say one of the crucial functions of the opposition in the House of Lords now, though other people in the House of Lords do it as well, including the independent cross-benchers, is to try to look for the divisions in the government party, the government's weaknesses with its own supporters, particularly in the Commons. They will look out for those opportunities and seize them if they can and throw things back to the Commons to see if government backbenchers really will stand with ministers. 14-1 If they won't, that's when things collapse and that's when policy changes. 14-2 Lord Norton: The other value we should mention in terms of the opposition, which is your question about the role of the opposition, as in the Commons, it does provide for structured scrutiny. So there's someone on the opposition's front bench there to question and put pointers to ensure that bills are thoroughly scrutinized. They are then complemented by other parties and by other members in the House but the opposition is there to provide structured questioning of government on a consistent basis. But that is a feature of the commons and indeed a notable distinctive feature of Westminster parliaments. 15 Senator Joyal: I think many of my colleagues have other questions to add, and I will defer to them. At the end, if I have another opportunity, Mr. Chair, I would certainly like to come back. 16 Senator McCoy: Thank you all for taking this time, and hello again to Doctor Russell. 17 I'm quite taken with the concept of the upper chamber being a revising body, and I'm thinking there's more and more of an appetite for that role being accentuated in Canada. 17-1 I have a couple of questions around that, particularly since the last time I looked, I'm trying to remember the number of amendments about a year ago that I counted in the House of Lords. It was something in the neighbourhood of 857 amendments that had gone through. 17-2 In Canada, there were 58 amendments that went through, since 1980. How many years is that? In the last 35 years, 57 amendments on bills. 17-3 Lord Wakeham: Can I make a comment on that? It may be that some of our bills aren't drafted as well as they should be in the first place. The House of Lords is pretty good at finding mistakes, inconsistencies or things which simply wouldn't work properly. So a lot of our amendments are not political at all; they are in order to make the legislation more effective than it would be if it wasn't drafted properly. That accounts for a lot of our legislation. 18 Also, I think that the House of Lords finds itself in difficulties if it starts to say: "We don't like this bill at all, we want to oppose it completely." They may run into challenges with the House of Commons. What they tend to do is to say: "This is what the government is doing, it has a majority to do this, but let's try and see if we can make it better, more effective." 1-1 Lord Norton: It's worth making the point as well that most of the amendments that are accepted by the House are actually tabled by government. Their genesis is not within government, it is actually ministers responding to amendments moved at earlier stages by members: ministers recognizing the point made and therefore getting parliamentary council to draft an appropriate amendment to meet the point so when they bring it forward it's generally acceptable to the house. 19 Meg Russell's research of certain bills showed about 55 per cent have their genesis in earlier stages of the bill, sometimes from the Commons. 19-1 Ms. Russell: Indeed, in terms of the relation between the chambers, and this fits with my previous comment, yes, the vast majority of amendments agreed are government amendments, but generally in response to points raised by non-government parliamentarians. Often those discussions begin in the Commons, the amendments are not passed in the commons, but once the bill gets to the Lords, if people in the Lords are making the same kind of points that were made in the Commons and the government realizes it's on weak political ground, it will move its own amendments in response. 20 The two chambers are much more linked than people often realize. 20-1 Senator McCoy: Do you do that on the floor of the House of Lords or do you do it in committee? What's the mechanism? 21 Lord Norton: The normal stage is, after second reading we have Committee of Report with those committee stages sometimes taken on the floor, in the Committee of the Whole House and increasingly taken in Grand Committee. But with those, any peer can attend Grand Committee, so in a sense Grand Committee is a form of a parallel chamber. Committee is where the main work is done, the detailed scrutiny and the deliberation, and you can speak as many times as you wish to an amendment. Report stage is taken on the floor of the House. That's more formal and that's where government will tend to bring forward amendments to meet the point. 22 We'll typically spend a number of days in committee. We might spend two days, say, on report. We are unusual in that when it comes third reading, in the Lords we can take amendments at third reading and that's not possible in the Commons. 22-1 The rules are fairly limited as to what you can introduce at that stage but it does mean there's one final opportunity to resolve problems that have not been resolved at committee stage. So the bulk of the work, the deliberations happen at committee stage, you've then got report stage, which is probably where the actual amendments are accepted, but we still have third reading just to resolve a few unresolved issues. 22-2 Senator McCoy: I have one final, quick question, if I may, and that around is the effect of this increased scrutiny and effectiveness of your debate rising to amendments, to improve legislation. I'm interested in the duration, in the House of Lords, of a bill. Maybe you don't have it at the tip of your fingers either. How long does it usually take for a bill to go from first reading through to third reading? 23 Lord Wakeham: Let me try and answer that. There are usually negotiations to decide. If it's a big and complicated bill, there could be as many as 10 days on committee stage or it might be one day or two days. But we try negotiate that amongst the parties as to what is reasonable. 24 There is a second thing too, about our process, and that is that we have relatively few votes on committee stage, and in my view, when I was the leader of the house, I used to say to my ministers: "You should try and avoid votes on committee stage. What you can say is, 'Look, I don't really think I can quite agree with what you say but I certainly will think about what you said, and see if can I come up with an answer'." And then the votes would come at report stage and either the government has thought this is reasonable or not. 24-1 So we try our best not to be too hostile to amendments at committee stage. We say, "Let's look at it carefully, let's think about it," and it helps to create the right sort of atmosphere. 24-2 The amount of time we spend is negotiated between the parties. 24-3 Ms. Russell: If I could add to that, Lord Wakeham, I'm sure would confirm this as somebody who has spent a long time at the senior levels of government. That isn't just fobbing off the House. When a minister says they'll look at it, they'll often give other assurances such as, "I will meet the member to discuss it; if the member would like to come to see me, I will write to the member," between the committee stage and the report stage. 25 I've documented this; I've just finished a book which will come out this summer on the legislative process at Westminster. Most of the legislative process, in a sense, is not visible from the public record in the Chamber. There are an enormous number, and it's probably the same in Canada, just a multitude of private meetings going on between people, particularly in the Lords, but also between ministers and backbenchers on their own side, people in other parties, between civil servants and people in all parties to get agreement before the next stage. It's those things on which agreement cannot be reached where the government has to make some concessions. 25-1 Senator McCoy: Thank you very much. 26 Senator Massicotte: Thank you very much for being with us this afternoon, or early evening for you. 27 Obviously, we both have a starting point. The Westminster system is very similar. 27-1 But I do note, and maybe it is something for us to learn from you, that while we act with reservation to countering the political will of a bill or the political intent of a bill, we don't have consensus among ourselves as to whether we should use a veto right, whether we should object to the House of Commons, whether we should finally bend and accept they have popular support, whereby ourselves, like yourselves, are non-elected. 27-2 Is that for a danger for us? Your opening statement was saying that you basically decided to be a revising chamber because that's where you're most credible given your expertise. We're not there with that. 27-3 In our argument we would make, if you give up the veto right, you give up a significant negotiating power to get your way, although we don't use it very often. Is there something we should learn from your history that we're making a major in mistake in not limiting our powers somewhat or limiting the time frame for us to review bills? 27-4 Lord Wakeham: I think it's very hard for us to be able to advise you as to what you should do. I can tell you why we do what we do as best I understand it, and that is this: We accept that the House of Commons is the dominant house with the real power. The House of Lords is there to advise and to help. In very rare occasions will we clash head on with the House of Commons. 28 I've been around both houses now for the best part of 50 years, about 46 years or something, and I think it has happened once or twice in the whole of the time that I've been at either house. Our system will not work if one house was in conflict with the other over anything that was too major. 28-1 Our task in the House of Lords is to try and improve what the government is doing. Of course we have our political differences, but our system is set up to try and encourage the government of the day to get their bills in better shape than they've got them in already. 28-2 Lord Norton: I think it's important to stress across here that the Lords is limited by statute, particularly the Parliament Act, as Meg has explained, by convention and by practice. We work within that. But even within that, we exercise some degree of constraint. So even under the Parliament Act, we could delay a bill for a session and the Commons could then insist through the use of the Parliament Act. Since the Parliament Act of 1949, only four bills have been passed under the provisions of the Parliament Act. 29 So we don't seek conflict with the Commons. We use what powers, what resources we've got, essentially, as persuasive tools rather than as coercive tools and hence, as I stressed, the politics of justification getting the government to justify, to listen, to work with the house rather than to say there's a form of a conflict. 29-1 Ms. Russell: You should never underestimate the power of simply exposing government arguments to scrutiny on the public record because pressure groups are watching, the media is watching, government backbenchers are paying attention to what those groups are saying. I would be nervous of reducing and, if you look around the world, reducing the powers of a second chamber too much. There are some second chambers that have a delay power of only a few weeks. I think that does present problems for them. 30 But as Philip Norton has said, we have a delay power of a year, we don't need to use it. A lot of the time it's the power of argument and the power of exposure of the weakness of government's arguments that results in change. It's not the application of the formal powers. 30-1 Senator Massicotte: My understanding of the reputation of the House of Lords is that you've gained credibility, support by the population in the last couple of years, possibly because of the good work, possibly because of your change in the membership. In our own case, we're not elected, and some people question our legitimacy given that we are not elected. And also there's a trend worldwide to be anti-elite somewhat and we're seeing this political movement. 31 What's your recipe for making sure we remain credible to ensure that our communications, our positions are taken seriously? 31-1 Lord Wakeham: There are people who use similar arguments in the United Kingdom, who say unless we were elected, we would not be legitimate. 32 But the fact of the matter is, if we were elected, I think that we would be less valuable in the constitution. The fact is there would be clashes between the two houses, governments would not be able to govern properly. They wouldn't be able to get their legislation. A government with a majority in the House of Commons ought to be able to get its legislation, but my goodness it has to listen to the House of Lords, otherwise it will get into difficulties. 32-1 We make amendments not to destroy what they're trying to do but to try and help them. And most of the time, on both sides of the house, that's what happens. 32-2 Ms. Russell: There is absolutely no denial that the House of Lords is a controversial institution. It is subject to constant attack and criticism. I've conducted surveys of the public on views of the House of Lords, and there is a kind of grudging respect at the same time for the institution. 33 You talked about the anti-elite sentiment, which is absolutely true but, of course, there's already an anti-political party sentiment. And one of the things people like about the House of Lords is it's less partisan and it includes a lot of members who don't have a party affiliation at all. I would say the British public's—to the House of Lords is quite conflicted. It's very complicated. It's respected in many ways. But there's always a threat of reform and a threat of loss of legitimacy hanging over it, which is one of the things that leads to the restraint it exercises. 33-1 Lord Norton: I think it is important to stress that the House of Commons can take its legitimacy for granted because it's elected. We have to earn our legitimacy because we're not. 34 So we are sensitive to our environment, and this research that Meg has undertaken, to understand what it is that enables us to play to strengths in fulfilling our functions and the public recognizing what we do. 34-1 It really is the detailed scrutiny that is respected, and that it has been undertaken by people who actually understand the subject and not by elected politicians. 34-2 Senator Eggleton: I'd like to ask you about the application of two practices in the Lords. One is the Salisbury Convention, and the other is suspensive veto. 35 On the Salisbury Convention, you're saying, as I understand it, the government, if it has a mandate from the people, should be respected in the House of Lords. 35-1 The difficulty is that some of the promises made in election campaigns can be quite vague; or secondly, the government may decide to vary the position or the approach they take when they come into office as opposed to what they actually had in their election literature; or thirdly they might decide to throw a lot of other things in and create an omnibus bill that covers a number of things in addition to their promise. 35-2 So how do you determine what you should respect as an election promise in terms of dealing with the legislation? 35-3 Second, on the suspensive veto, when do you apply the veto and for how long is the debate allowed to continue after you've applied it? And do you not think that that greatly reduces your power to influence? Because all the government needs to do is run up the clock until that period is over. 35-4 Lord Wakeham: Let me answer that from a practical point of view, having been a leader of both a leader of the House of Commons and leader of the House of Lords in my time. 36 The view that I took was that if the government could get a majority for its bill in the House of Commons, then I would be extremely surprised if the House of Lords would not give it a second reading. 36-1 I think it is inevitable they would respect the elected house's decision to pass it. 36-2 The second thing is we could go backwards and forwards between the two houses with a dispute on the end, and in my day, which was when I was in government some years ago, we used to hope that the House of Lords had passed some amendments that we could concede because then we knew we could get them to back off on the ones they couldn't concede. 36-3 The view was that if they passed four amendments, and if one was sensible, that was all right, no difficulty about it. One we desperately wanted, and a couple of minor ones we could concede on, we could get our business through. 36-4 But they could go on backwards and forwards; there's no time limit. It could go on. But the House of Lords wouldn't do that. The House of Lords would, in the end, accept, in my view, the will of the House of Commons. 36-5 In my time, I can think of only two occasions, but one of them in particular was when we had a bill on war crimes. The fact of the matter is the House of Lords felt very strongly that it was a time to forgive and forget and not have another bill about war crimes, because many of the members of the House of Lords had fought in the war. They realized that a lot of horrible things had gone on in the world and that it was time to put a stop to it. The House of Commons was desperately keen to get this bill through, and there was a lot of pressure to get it through. In the end, they used the Parliament Act. 36-6 Lord Norton: But on free vote. 37 Lord Wakeham: Yes, it wasn't a party vote at all. It was just a free vote. 38 Lord Norton: On the Salisbury Convention, you are quite right that it formally replies to manifesto commitments. Manifestos can be very vague. But that's the sort of thing the opposition would tend to exploit but not necessarily oppose a bill. 39 In practice, the Lords will not normally vote on the second reading of a government bill that is its program for the session. If you like, it goes beyond the Salisbury Convention, largely for the reasons that Lord Wakeham has given: If the Commons is agreed on the ends, we focus on the means. We think that's what's legitimate and what we can do effectively; namely, complementing the work of the Commons, which is under increasing pressure in terms of time and demands. It doesn't have the time to engage in detailed scrutiny. Quite often, there isn't the political will either; whereas in the Lords, we have the time and we have the members who understand the subject and debate to it. 39-1 So it's not so much a conflict between the two chambers. We're actually fulfilling complementary roles. 39-2 On your second question, it really depends at what point the conflict took place. If the Lords, as on the war crimes bill, vote it down on second reading, then that's the end of it until the following session. It could be the bill has gone through but the Lords has made amendments that were unacceptable to the Commons. They sent them back. If we have continuous ping pong and it's not resolved, the bill falls at that stage. Then the bill is reintroduced in the following session. 39-4 So it depends at what point the bill failed. 39-4 Ms. Russell: I would simply emphasize that both of these things are very rare, and neither of these things should be taken too literally. 40 The frequency with which the House of Lords gets into detailed debates about whether something can be defined as being in the government's manifesto is very low. Because it's generally a respect for the elected house and the convention of not voting against any bill. 40-1 Whether it's in the manifesto is mostly immaterial. On the application of the veto, it just very rarely comes to that point. Most disputes are resolved through negotiation before it gets anywhere near that. 40-2 Lord Wakeham: I spent many of my years of my life doing the negotiations when I was leader of the Commons and leader of the Lords, going backward and forward, finding something acceptable to all sides. 41 Senator Dean: Thank you for all your helpful comments. As a relatively new senator, the ability to be involved in rich debates and discussions like this is just a joy and privilege. 42 I'm a graduate of the University of Hull just down the road from my friend at Sheffield. 42-1 This question is a shift of a zone. I'd like to talk a little bit about the quality and effectiveness of debates in upper chambers. Your points about upper chambers having benefited from and varying on the basis of having different biographies and operating in different contexts is well taken. 42-2 A current issue before us in the Senate right now and which is a matter of some debate is the way that we organize debates and the way that debates have evolved. I characterize it this way: There are some of us who see the debate system on government bills, in particular in the Senate, as often truncated and extended out of over quite long periods, usually benefiting from a rule and/or convention of the ability to adjourn debate fairly consistently. Some would argue that relates to some partisan aspects of our chamber that replicate some of those aspects in the House of Commons. 42-3 Could you tell us a little bit about the way that debates are organized in the Lords, in particular whether and how debates are organized in clusters so that they are concentrated over a number of days so that you, as members, benefit from a consistent thread and discourse? 42-4 I say that recognizing that there will be cases where it's important and understandable that something is in the chamber and in the Senate for a long period of time. It doesn't always have to be like that. 42-5 I would also ask if Ms. Russell could bring anything from what we know of best practices in other chambers around things that you have seen to work well in producing both high quality and highly effective debates. 42-6 Lord Norton: The basic point to make is that the House of Lords is a self-regulating chamber. We're in charge, and we have to behave in order to make the system work. 43 The parties generally accept the rules that apply. It's not like playing games in seeking adjournment. It's really addressing amendments that are put down. 43-1 There are certain rules of debate. There are certain rules for when we are considering legislation. On general non-legislative debates, you have people speaking who are usually very knowledgeable in the area—perhaps experts. We also tend to time-limit contributions, certainly the time limit of debate. You have a series of fairly short speeches by leading figures in the field. It works extraordinarily well. You learn a lot from those who really understand the subject. 43-2 On legislation, there will be agreement between the usual channels as to the number of days that are normally allocated, say, to committee stage. If they miscalculate and require extra time, they have to sit later in the evening to get through. 43-3 Basically, members book down amendments. There's no selection of amendments; all amendments that are tabled are considered. They may be grouped, by agreement, in that if there are several on the same point, they will all be discussed at the same time. Even then, the mover of the amendment can insist they be debated separately. 43-4 And so there's a list produced in relation to each clause, every amendment is considered and we debate them for as long as there's amendments to be debated. 43-5 There are not usually attempts to use procedure to delay or subvert the discussion. We just focus on the merits of the amendments being put forward. There doesn't seem to be any problem, because each member is free to put down an amendment to make sure that what they want to be considered is considered. They get a response from the minister. It's then up to the member whether they wish to pursue it at a later stage. As Meg mentioned, there's a lot of informal discussion between the stages to reach agreement. 43-6 The rules of the game are accepted and members, on the whole, do work within them. 43-7 Ms. Russell: I think it's fair to say that you're a comparativist as well. This is a very unusual system in the House of Lords. It comes back to the point about convention versus kind of legal rules or frameworks. It's very unusual that the House of Lords manages to maintain this kind of largely consensual way of running its business with people respecting each other's rights to time. It's the kind of convention that has developed and would be very hard to create. In the House of Lords, there's no concept, for example, of a guillotine motion in the House of Lords. It's completely unheard of. That is different from the House of Commons, although those kinds of things apply less in the House of Commons these days as well. 44 The British Parliament is very unusual in general in not actually privileging political parties very much. The emphasis within the standing orders in both chambers is very much on the individual member. So parties don't carve up time so much as you see in many other more modern Parliaments. Our Parliament predates our party system and has developed gradually, whereas many more modern parliaments and the standing orders were organized around the existence of political parties. 44-1 One thing to say about the effectiveness of debates is that it's about the members as well. One of the things about the House of Lords compared to the House of Commons is that it is a very tough environment for ministers because of the nature of the people who are there and might ask you questions. It's a very tough environment to answer parliamentary questions, for example. 44-2 Lord Wakeham: That is an important part of it. You have to remember that members of the House of Lords, particularly independents, are often earning their living somewhere else. They don't get paid, and therefore a considerable amount of trouble is taken to try and fix the timetable so that the debates take place with plenty of notice and the experts can hopefully get there. So you have a high level of debate because, you know, you're going to have a debate on defence and all the ex-generals and people are there because they have been told a long time in advance that's when the debate is going to be. 45 Even with a wider range of expertise among our senators than is is currently the case, many committees still need to be enhanced by still finer-grained expertise from outside the Senate, expertise drawn from business, academe, existing think tanks, what-have-you. But a process of coauthoring documents as outlined in the essay's chapter on Optimizing effectiveness:Digital collaboration. Expertise available from think tanks may prove to be a boon, Ref.. The MDRN committee should do well by calling witnesses in the areas of cognitive diversity, digital collaboration, complex problem solving, research management, think tank effectiveness, workplace psychology. n45
Additionally, regular sessions with a guest speaker looks like an efficient way of keeping senators up-to-date on many pressing issues out there in the world, complex issues such as sampled in Part II of my essay. n45A The management of the place has to recognize that if we're going to get people with great knowledge to come and talk about a particular subject which is down for debate, which is important, the ones that really know about it are there. In a way, even at question time, people will jump up and the House will shout the name of a distinguished somebody or other that they think has got something to contribute, and the House would accept that they should have the priority to ask the next question, or whatever it is. 45-1 So there is a considerable amount of co-operation in getting the best debates going and the way it's worked out. 45-2 Ms. Russell: But it is an intimidating environment for ministers, and consequently ministers don't mess up very often, but again, it's like what I said about the legislative process. All of the work is the preparation work for ministers to be ready to answer any question, and I don't know whether you have experience of this, but I interviewed somebody who had been at the dispatch box answering questions for the government who said that he recalled an occasion when, in preparation for questions, he recognized that there was a weakness in the government's policy, and the policy got changed before the question had even been asked because he knew he would not be able to defend the policy as it was. So a lot of the power of the Lords is very subtle and invisible. 46 Lord Wakeham: Yes, that is absolutely right. I would also add that when I was Leader of the House, I used to say to my junior ministers: "I can give you half a dozen answers you can give to questions when you haven't a clue where the right thing to say is, and you'll get away with it." Like, "I'll speak to my boss when I get back to the office," and get away with murder, because it doesn't always work quite as smoothly as people make out. 47 Senator Dean: Thank you. 48 Le sénateur Forest: Monsieur le président, mon prédécesseur a posé exactement la question que je voulais poser. Je passerai donc mon tour. 49 Senator Bellemare: My question, I think, is in line with some work that Professor Russell did in 2006 called Managing Parliament better? A Business Committee for the House of Commons. 50 What I understood from the answers you gave to Senator Dean's question is that the legislative process in the House of Lords is organized by itself. You are all adults and nonpartisan and you organize the workload. I was wondering about this business committee that Professor Russell proposed 10 years ago, or so. Did it get implemented in the House? Is it inspiring for the work of the House of Lords? Or don't you use this process? 50-1 Ms. Russell: Should I answer on the proposal? 51 Lord Wakeham: Yes. 52 Ms. Russell: The business committee discussion was one primarily about the House of Commons, not the House of Lords, and that paper that you refer to—you've really been doing some extensive reading; I'm very impressed—was exploring the way that business committees operate in other Parliaments around the world. For example, I visited New Zealand, Germany and Scotland, where they have formal business committees to organize the timetable for the House rather than doing what we do, and I'm afraid I'm not sure what you do in Canada. Philip Norton referred to the so-called usual channels. It's all done by negotiation between the whips, informally and off the record. 53 I came away rather skeptical, actually, about what I found in these other countries, regarding the benefits that a business committee would bring. It's not that it's a bad thing to have a transparent, clear committee which is responsible for setting the agenda, but what I found when I went on visits to those other countries was that despite the existence of such a committee the real deals were still done between whips outside of formal meetings. 53-1 I attended the business committee in New Zealand, and the discussion of the business for the week ahead lasted about two minutes. Clearly it had all been discussed in advance of the meeting. I'm not sure that the places that have business committees really politically operate very differently to those that don't. I'll leave the House of Commons to you this time. 53-2 Lord Wakeham: I suspect there is nobody in the United Kingdom who has done more deals between parliamentary people without any business committee. I would be horrified if I had a business committee interfering with the deals I did, because I've got to make everybody happy. I don't do it now; I'm retired from it all, but we negotiated everything, and we negotiated in such a way that people felt that the deal was fair. 54 The fact of the matter is that if somebody is really unhappy with the way we're running our affairs, both in the House of Commons and the House of Lords, they could stop the whole business in 10 minutes. They could just make such a fuss. It's got to be done by agreement. 54-1 I was the government chief whip for many years, and half my time was spent negotiating with the opposition parties as to what the business would be, and then I went to cabinet and told the government cabinet what the business was going to be, but I dealt with it with the opposition before I'd ever spoken to the cabinet about it because that's the only way to get it through. 54-2 Senator Bellemare: But in the House of Lords, the business organization, I understand, is done very easily. Is it easy to do the organization of discussions in committees? 55 Lord Wakeham: Well, at the end of the day, when the result is through, it looks easy. It's not always that easy to get there. You have to understand what the other person wants, and you get what you want because you give him something that he wants, and you negotiate it. That's what happens. 56 Lord Norton: The negotiation can be very flexible while the bill is going through. The whips may get together towards the end of the day to discuss at what point they should finish the discussion, depending on the progress that's been made. It is that flexibility that adapts to how the House is proceeding, whether it's moving quickly and so on. 57 Ms. Russell: In the end, it operates a great deal, I think, on mutual respect. 58 Lord Norton: Absolutely, yes. 59 Ms. Russell: It's very, very civilized, and one of the reasons for that, underlying it, is what John Wakeham just said: that the government actually has no means of forcing business on the House of Lords. So if it didn't approach people with charm and respect, those people could make it very, very difficult for the government, and that sort of holds things in tension and it encourages this atmosphere where people do a great deal by negotiation in a sort of very civilized manner. 60 Senator Bellemare: So if I understand you well, you negotiate and you come to a mutually advantageous agreement, but those mutually advantageous agreements are in the lenses of the individual Lords and their own interests, and they are not done through the lenses of partisan political parties. 61 Lord Norton: Well, the usual channels are the whips, but they do it on behalf of the whole House, and we normally accept that the business they are organizing is to the benefit of the whole house and we normally go along with it. 62 Ms. Russell: And of course, important within the Canadian context, there has to be some consideration of the likely response of the independent members who don't have a whip. They do have a convenor of their group who is party to some of these discussions, but really there it is at the level of the individual because they don't operate as a bloc. 63 Senator Bellemare: Thank you. 64 La sénatrice Dupuis: Merci, on a déjà répondu à ma question, monsieur le président. 65 The Chair: Thank you very much. We're moving along. We're going to have lunch today, I think. 66 Senator Tardif: Thank you, chair. I wanted to address a few procedural matters pertaining to the relationship between the two houses. 67 To what extent is pre-study used by the House of Lords in dealing with legislation that emanates from the House of Commons? And to what extent are joint committees established to address complex legislation? 67-1 Lord Norton: We don't use joint committees to deal with legislation other than at the pre-legislative stage. So increasingly the government, in the past few years, has issued a number of bills in draft and sent them to the Commons—to Parliament—for pre-legislative scrutiny. 68 Normally, it would be undertaken by one of the departmental select committees of the Commons, but on certain bills, because of their constitutional significance or their complexity, where it would be useful to have members of the House of Lords involved, joint committees are established to undertake that pre-legislative scrutiny and to report on the draft bill. But we don't have joint committees once a bill is introduced. It has to go through each house. It normally goes through the Commons first, then it comes to the Lords. There's actually no joint working at all, and the communication is if, when the bill comes back, we send it back with amendments. They look at the amendments and send them back. So there's no coming together at any point doing the formal legislative process. 68-1 Lord Wakeham: I wouldn't add anything to that. 69 Ms. Russell: It was a very complete answer. 70 Lord Wakeham: Very good answer. 71 Senator Tardif: Great. 72 Lord Wakeham: We do have joint committees sometimes, but they are usually not about legislation. They are about wider questions, say human rights or something of that sort. There are sometimes joint committees, but they are not to settle legislation. 73 Senator Tardif: I know in Canada there's a joint committee that was established to look at a bill coming forward on medically assisted aid to dying, and a joint committee was set up and then legislation followed after that. 74 Ms. Russell: We do occasionally do things like that, don't we? As we said, on draft bills. So for example, the last bill to reform the House of Lords went to a very large joint committee. 75 Lord Norton: Yes. 76 Ms. Russell: It didn't get much further. 77 Senator Tardif: Thank you. 78 Senator Greene: One of the conclusions I've drawn from this wonderful conversation that we're having, from which I have certainly learned a lot, is that one of the chief differences between our system in the Senate and yours in the House of Lords is that our House of Commons acts differently. You described your house in ways where, during a second reading of a bill, you can have large numbers of the government caucus not supporting the cabinet or the government, with the result that there was a lot of to and fro, and members visiting people in the House of Lords, people of opposite parties beginning to get together to advise on a bill or to change a bill. Such a thing, of course, in Canada would never happen on second reading, parties discipline on third reading; it is so powerful that that's just not tolerated. It would never happen. With the result that we don't have the back and forth between the Senate and the House of Commons in Canada. We are on two parallel rails, and never the twain shall meet. 79 Lord Wakeham: Yes. 80 Senator Greene: It seems that your system is more similar to the American system with the House of Representatives and the Senate where you've got members of the House of Representatives and members of the Senate maybe on opposite parties, Republican and Democrat, getting together on legislation and policy positions. 81 I wonder if you could comment on that. 81-1 Lord Norton: I certainly can. I gave evidence to a House of Commons—committee in 1984 and drew attention to the difference between the two chambers, your House of Commons, our House of Commons. In our House of Commons, the members were starting to operate somewhat independently of the whips at times, not to undermine completely party cohesion. So nowhere near the American experience. 82 But since the 1970s, MPs across here have been more willing to vote against their own party more often on more occasions and with greater effect than before. And part of the reason for that, and the difference with Canada, is that across here most votes are not treated as votes of confidence. You can vote against your own side. It may result, on very rare occasions, on the government being defeated in the House of Commons, and that started in the early 1970s. Members realized we've defeated our own side, it's had no wider constitutional consequences, no confidence attaches to it. All we have done is forced the government to change policy. 82-1 So members mostly are voting loyally to their own side, but on occasion, if they disagree with it, they are willing to vote against. 82-2 As I explained to the -- committee at the time across here, there were degradations [gradations?] of vote. Some were explicit votes of confidence. Some were so important the government might make them votes of confidence, but the rest, which is the vast majority of matters on which votes took place, entailed no confidence at all. So the government could lose, but there were no questions about its status, its continuance in office. 82-3 Members started to have an impact on policy by actually voting against their own side, or the threat of voting against your own side because, as a result of that change in behaviour, government took the threat more seriously as well. 82-4 Backbenchers are actually—own side, so ministers have to have regard to those who sat behind them and not simply those who sat in front of them. That is the fundamental difference. I don't think Canada's quite got through the barrier of recognizing that most votes don't entail confidence in the government at all. 82-5 Lord Wakeham: Can I say that I was the chief whip for Mrs. Thatcher, and the idea that many of our backbenchers would vote against her legislation in the House of Commons when I was in charge of getting it through was pretty rare, and it wasn't a very good move for the person who voted against us. However, part of that process was a great deal of discussion behind the scenes with our backbenchers. I was very keen to make sure the ministers talked to our backbenchers and tried to persuade them of the merits of the legislation, or what sort of concession would they like, which the government then brought in, in order to get them to vote consistently for the bill. 83 Now, we all had one or two people who didn't vote with us, but not very many of them, certainly in my day when I used to be in charge of the voting in the House of Commons. 83-1 Ms. Russell: Going back to what I said before, I think this is a very important part of our system, understanding the Commons, as well as understanding the bicameral relationship. There are a whole range of reasons as to why MPs behave more independently than they used to do. You have the establishment of a set of specialist committees in the House of Commons back in the 1970s. You've got the fact that members are better educated, that the public expects more of them and perhaps value independence amongst members. But also -- I hope this doesn't upset John Wakeham -- the whips have gotten significantly weaker over the years. They have lost a lot of their powers. 84 Lord Wakeham: That's true. 85 Ms. Russell: They have never been in control of finances for members, as they are in some Parliaments. They used to control the allocation of rooms, but rooms are much more available now. They don't control speaking time as they do in some Parliaments. The Speaker in the House of Commons is very independent. The parties have very little control at all over who gets called to speak. And they increasingly don't control committee seats, so they don't have much of a way of imposing discipline on their members, which means that they actually have to listen to their members, and their members are prepared to take the stand against them. 86 And the bicameral relationship comes into this. I always remember a comment about a lovely man who I used to work for, sadly now deceased, a former leader of the House of Commons, Robin Cook. I remember there was a very big controversy after he'd left the government and was on the backbenches over anti-terrorist legislation, where there was a rebellion in the House of Commons before the bill went to the House of Lords. He was interviewed on the television, and the words that he used were: The House of Commons has sent the House of Lords a message. 86-1 And what he meant by that was the House of Lords are going to dare to push the government further and the government will not dare to try and put this to the House of Commons again, and it's in those circumstances that the Lords' power is at its greatest. 86-2 Lord Norton: I don't want to shock John Wakeham as the former chief whip, but as he says, the whips were very good at telling members if you vote against, it would affect your career opportunities. All I would point out is that the empirical evidence doesn't necessarily support that. 87 Lord Wakeham: I don't think I ever had to use such crude terms in my day. What I think I did have was a better intelligence, a better degree of consultation with my backbenchers to persuade them that they were part of a team and it wasn't their job to protest and vote against the government. Their job was to influence the government from mind behind the scenes and to get our legislation through. And, of course, I didn't get everybody, but I got a great deal. Of course, the patronage of the whips has certainly gone down. I think that is right. For the five years I was a minister—well, I was chief whip in the Commons—I don't think there was one single minister appointed outside of cabinet who wasn't on my recommendation. Those were the whips, every single one. 88 Lord Norton: Things have changed. 89 Senator McIntyre: Thank you all for your presentations. My question is one of clarification. I understand from your presentation that the Salisbury Convention governs the legislative relationship between the House of Commons and the House of Lords. In other words, the Salisbury Convention or doctrine applies to bills passed by the House of Commons that the party that has formed the government had foreshadowed in its general election manifesto. 90 Looking at the power of the House of Lords to amend or defeat house legislation, how does the House of Lords determine whether a piece of legislation was foreshadowed in the government's election manifesto? 90-1 Lord Wakeham: That used to be the doctrine, but I'm not quite so sure it's as limited as that now. The view I take, and I think most people do, is that if the House of Commons gets a majority for the bill, even if it wasn't in its manifesto, it is not the job of the House of Lords to vote it down. Its job is to properly consider it, which means give it a second reading and discuss it. 91 We accept that the House of Commons is the superior chamber. They are the democratically elected chamber. If they could get a majority for their bill, it's our responsibility then to consider it and to decide what to do with it, such as amend it if we want to and send it back in that case. But ours is not to refuse to do it. 91-1 Ms. Russell: There's a distinction to be drawn, which has come up several times, between the principle of the bill and the detail of the implementation. If the House of Commons has passed a bill with a comfortable majority, then the House of Lords will accept that the bill should have a second reading. 92 But they will then consider itself completely entitled to scrutinize the detail and suggest changes to the detail to make the bill work better within the broader principles which have been set. 92-1 Lord Norton: Yes. 93 Lord Wakeham: There is one way where it could be tricky. The government is entitled to, and does, bring in bills starting in the House of Lords that have never been to the Commons. It's therefore very difficult for the government to argue that this bill has been passed by the House of Commons if it started in the House of Lords. All I can say about that is we have never really tested that seriously because any government intelligent enough would make sure they would not bring a bill into the House of Lords to start with if they thought they were going to run into difficulties. 94 Ms. Russell: There is one example. Tony Blair's mode of trial bill that was seeking to limit access to jury trial was introduced very stupidly in the House of Lords and actually withdrawn. And they introduced a mode of trial No. 2 bill in the House of Commons because they saw it was doomed. 95 Lord Wakeham: That establishes my point. 96 Ms. Russell: It's very rare. 97 Lord Norton: No sensible government would introduce a controversial bill in the House of Lords, because the Parliament Act doesn't apply to bills that start life in the Lords. It applies to bills that start life in the Commons. 98 Any controversial bill is started in the Commons to ensure that, ultimately, they could get their way if necessary. 98-1 Senator Joyal: I would like to come back to the role of the political parties and the Lords. What is their specific responsibility in relation to organizing the study and debate of legislation on a day-to-day basis? As you have mentioned, the cross-benchers are not there all the time to provide input. As someone would know, when the house opens, the work has to go on. 99 What are the specific roles of the political parties in the day-to-day managing of the study and debate of legislation? 99-1 Lord Wakeham: The government is in charge of the legislative program for most of the time. There are certain days that are allocated to the opposition or other parties when they can choose what they want to debate. But the legislation is in the hands of the government, and the government can put it down. 100 But they would be very foolish if they did not negotiate with the other parties and with the cross-benchers as to whether this was sensible and agreeable to do so. 100-1 The government has the resources and the staff to do it, and they are in charge of the process, but they do consult all the time. 100-2 Lord Norton: When a bill is being considered, there are always members of the opposition frontbenchers. Both the opposition and the Liberal Democrats would have members of their front bench present to comment on each amendment before the minister responds, so there is consistent scrutiny from the other parties. 101 Ms. Russell: I would say that in some respects the role of the opposition in the House of Lords is less important than in the House of Commons. The House of Lords is a more plural place. You have the presence of the independent members. You have lots of different voices. The bishops haven't been mentioned here, but there are various voices. The third party is much stronger in the Lords than it is in the Commons, at least at the moment. 102 There are differences in the rules; for example, in the House of Commons, the Speaker has a much more powerful role than in the House of Lords. So another way the debate is limited at report stage is that the Speaker has some control over which amendments will get debated. The Speaker will pick what are considered to be the most important amendments, and those will get time, and other amendments will not be debated. The ones that get picked as the most important ones are often the ones coming from the opposition front bench. 102-1 But that rule simply doesn't apply in the House of Lords. As Lord Norton has already said, effectively all amendments are treated equally. Indeed the amendments that often garner the most support and cause the greatest worry to the government are those led by experts who might be nonpartisan peers, or they might be backbenchers on one side or the other, like Lord Norton himself is at times, as a former chair of the Constitution Committee. The amendments from chairs of important committees and accepted experts from outside are listened to very seriously, whereas in the House of Commons, the agenda is much more set by the opposition. 102-2 Senator Joyal: What is the role of the respective party caucuses in relation to the work? 103 Lord Wakeham: We laugh because, normally speaking, the private discussions are with the people most concerned about a bill, but the idea that the program comes before the party caucus for debate and discussion as a general rule is very rare. That doesn't normally happen. 104 Ms. Russell: We've spoken a lot about the independence of mind of backbenchers in the Commons, but the independence of mind in the Lords on all sides is far greater because of the party benchers as well as the independent benchers. You have got very senior figures, established experts and so on. The whips simply do not control their parties in the way that applies in many parliaments around the world. 105 Lord Norton: The party members tend to vote on party lines, but in terms of debate, members will speak as they think appropriate, regardless of party. 106 Ms. Russell: I spoke about the weakness of the whips in the House of Commons, but in the House of Lords, the whips have virtually no power at all. It's all persuasion and internal discussion. 107 Lord Wakeham: They have no power, but they have a lot of persuasion. They are still quite effective. 108 Ms. Russell: And party loyalty matters. Members respect their parties. They don't want to embarrass their parties, but the whips can't make them do anything at the end of the day that they don't want to. 109 Senator Joyal: So I understand that your operation is structured on the basis of a government party and an opposition party? 110 Lord Wakeham: We have more than one opposition party; we have two opposition parties. We have the cross-benchers that are a pretty large number, the Liberals and the Labour Party. There's quite a number of people who have to be talked with about any legislation. But it's all done through the leadership, really. 111 The Chair: This has been an extremely interesting discussion this morning and a very helpful one. Lord Wakeham, Lord Norton and Professor Russell, we are most appreciative of you taking the time. 112 There's an unwritten rule, Professor Russell, that if you appear three times, the third time you must be here in person. 112-1 Ms. Russell: I would be delighted. 113 The Chair: Thank you very much for this. It's been most helpful. 114 Committee members, we will not have a meeting next week. We have a very special guest coming to the Commons. Can we have a motion to go in camera? 114-1 Senator McIntyre: So moved. 115 (The committee continued in camera.) 116
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