Chapter 8 Answers to quick test questions

1. What are the main functions of Parliament and how effective are the House of Common and House of Lords at fulfilling those functions?

The main functions of Parliament are to enact legislation, provide a forum for debate of the main issues of the day, provide representation, and hold the government to account.

As to how effective the House of Commons and the House of Lords are at any one of these functions, this varies as to an extent they complement each other. For example, because of the unelected nature of the House of Lords it is difficult to argue that they represent citizens in any meaningful manner. However, the House of Lords has a level of expertise which is often useful during the legislative process. By contrast, the House of Commons is said to represent the people through elections, but because the government (usually) has a majority in the House of Commons, the government is confident of getting its legislation through the House of Commons and can defeat most amendments proposed by the opposition.

2. Should the election system used for general elections be changed?

This is perhaps a matter of judgment. The argument for change is that the existing first-past-the-post system can deliver highly disproportionate results, with some political parties winning considerably more seats than their vote share may indicate (for example in 2005, Labour won 55% of seats, but only 35.2% of the vote), whereas other parties win significantly fewer seats than their vote share may justify (for example in 2010, UKIP won 12% of the vote, yet only 1 seat).

Whether the electoral system should be changed to remedy this problem depends on your point of view. Other electoral systems could deliver a more proportionate result, but their cost could be complexity, or they could result in large multi-member constituencies, meaning that the link MPs currently have with their constituency could be lost.

It is also a concern for some that electoral systems that deliver a more proportionate result might make it more difficult for a single political party to form a government. This would make coalitions or minority governments the norm, with smaller parties holding the balance of power, seeking to implement their policies even though they had little support from the electorate. It is also a concern that the smaller party could withdraw their support from a coalition or minority party at any time, leading to ‘weak’ government, in contrast to the ‘strong’ government that a single majority party is said to deliver. However, the Coalition government formed in 2010 functioned effectively and was able to govern for the full five-year term, so it possible that this concern could be overstated.

3. Does the House of Lords need reform? If so, which reforms would you pursue and why?

The central concerns regarding the House of Lords are its unelected nature and the fact that the rate of new appointments to it means that the House has (some believe) become too large. The obvious answer is to introduce elections, but this raises arguments that such a change would produce a mirror image of the House of Commons, meaning that the Lords would fail to provide a counterweight to that House. In this vein, there is also a concern that elections would put at risk the expertise that the existing House possesses, as peers with outside interests may be unlikely to stand for election.

Various proposals have been mooted, however wholesale reform of the House of Lords has continued to prove elusive, with only more incremental changes – such as the House of Lords Reform Act 2014 and the House of Lords (Expulsion and Suspension) Act 2015 – being introduced. Possible reforms include introducing a cap on the number of members (as suggested by the Report of the Lord Speaker’s Committee on the Size of the House) or possibly removing the remaining ninety-two hereditary peers, but achieving the necessary consensus to bring about such change may continue to be difficult.

4. Is the English Votes for English Laws procedure misnamed? Would it be better described as an English Veto?

English Votes for English Laws was introduced to ensure that English MPs have a greater say over issues that affect England only, in response to devolution to Scotland, Wales and Northern Ireland. However, under the procedure English MPs effectively acquire only a veto against ‘English’ legislation and are not able to initiate their own legislation, so it could be argued that the procedure is misnamed.

5. How are disagreements over legislation between the House of Commons and the House of Lords resolved? Which broader political considerations apply?

Should the two Houses of Parliament disagree over legislation, there are two main rules that regulate how the disagreement is resolved.

The first rule is a political one. Under the Salisbury Convention, the House of Lords will grant a second reading to any bill that fulfils a manifesto commitment made by the government at the last election. However, at later stages of the legislative process the House of Lords can still amend the Bill.

The second rule is a legal one. Under the Parliament Acts 1911 and 1949, if a bill is passed by the House of Commons then rejected by the House of Lords, and in the next session of Parliament it is passed by the House of Commons a second time, only to be rejected again by the House of Lords, it can still receive the Royal Assent and become an Act of Parliament.

The broader political consideration is that generally the House of Lords is mindful that the House of Commons is the elected House, and seeks to revise and improve legislation by passing amendments that ask the government to ‘think again’ over an issue. Very often these amendments are accepted by the government, but given that the government lacks a majority in the House of Lords, amendments can be passed against their (the government’s) wishes.

6. Are the existing controls over the use of delegated legislation sufficient?

Arguably not. Most pieces of delegated legislation are subject to the negative resolution procedure. This means that a draft of the legislation is laid before each House and automatically takes effect (becomes the law) on the date stated on the legislation, unless either House votes against it. Around 10 per cent of delegated legislation goes through the affirmative resolution procedure, which requires each House to actively approve the delegated legislation before it becomes law. It is not possible for Parliament to amend the draft of the legislation under either procedure; they either have to approve or reject the measure.

Otherwise, the most important form of scrutiny is the Joint Committee on Statutory Instruments. This committee provides a form of technical scrutiny of the instrument by considering whether the drafting is defective, and whether it is within the scope of the power granted by the parent Act of Parliament creating the delegated legislation in the first place. However, it does not consider the merits or policy of the delegated legislation.

The fundamental tension is that often the very reason for delegated legislation is to save parliamentary time. Parliament lacks the capacity to enact all law through Acts of Parliament, and parliamentary time is best spent fulfilling other demands placed upon it. Consequently, delegated legislation provides a method by which the government can provide for the intricate details required to implement a policy, and many of these details are unlikely to be controversial. The concern is that this approach can be exploited so that instead of a Bill setting out the main elements of policy or scheme, it could provide for little more than granting the government broad powers to implement a scheme via statutory instruments.

7. Is Parliament able to sufficiently scrutinise the government?

This is a difficult question to answer. In one sense, there is a structural weakness in Parliament’s ability to scrutinise the government since in the House of Commons, the party of government usually has a majority. This means that many (but not all) MPs from that party may see their primary role as being to support rather than challenge the government. Instead, the task of challenging the government is left to the opposition, and much depends on the ability of the opposition to use the tools provided to ensure that the government is subject to effective scrutiny. These tools include urgent questions, ministerial questions and, to a lesser extent, Prime Minister’s Question Time. Much also depends on the size of the Government’s majority.

The most effective form of scrutiny comes from select committees, because they are able to investigate the activities of government departments in more detail. In general, select committees enjoy a less partisan atmosphere, with MPs from all parties (including the party of government) working together to scrutinise the government. In terms of the government’s legislative agenda, the most detailed scrutiny tends to come from the House of Lords, where the government lacks a majority, meaning that it is defeated relatively often on amendments to legislation.