26 June 2017

What is the Salisbury convention?

In the absence of a single document formally codifying our constitution in the UK, the Salisbury convention is part of the tapestry of conventions, judgements, and laws that define how government and law-making operate. It is an evolving arrangement that has generated varying interpretations, but its basic function is to inform the extent to which the House of Lords influences the passage of government legislation. This is a point which the House of Lord’s Library detailed last week as meaning:

that the House of Lords gives a second reading to government bills which seek to implement manifesto commitments, and that the House does not table wrecking amendments which might otherwise alter the bill’s intent.

Most agree that the Lords have a valuable and legitimate function scrutinising legislation, but that an unelected second chamber should not thwart the implementation of promises made to voters by resisting the will of the elected House of Commons. So far, so simple.

There have been attempts to tighten this convention. A recent example took place in 2006 when Jack Straw, then Leader of the Commons, spoke in favour of establishing a committee to examine codification as part of the Labour government’s ongoing efforts to reform the upper house. He argued that:

It was essential that we establish a baseline by reaching a common understanding of the existing balance of powers between the Lords and the Commons. I am talking not about the way in which the Lords manages itself—that is a matter for their lordships and no one else—but about the extent to which the House of Lords seeks to check and balance the powers of the Commons. Both Houses have a legitimate interest in the matter and, ultimately, it is for the elected Chamber to make decisions.

In making this argument, Straw illustrates the essential tension between the democratic authority of the Commons and the deliberative function of the Lords, one that has the potential to show itself in upcoming Brexit legislation.

Does Salisbury apply in a hung parliament?

The hung parliament means that there is no majority for a single party in the Commons. The two possible governing scenarios that this could produce – a minority government or a confidence and supply agreement – both look vulnerable under the Salisbury convention. Do the Conservatives’ manifesto commitments bind the Lords if they failed to win an outright majority? Would the Lords see themselves as being bound to support bills based on manifesto commitments that pass the Commons?

Minority government – a moment the Lords could flex their deliberative muscles?

If the Salisbury Convention is judged not to apply, it could be very hard to pass legislation. In the upper house, Labour and Liberal Democrat peers outnumber the Conservatives 305 to 254 and so could easily amend or reject bills. In particular many of these peers were strongly opposed to Brexit, as were many of their cross-bench colleagues. The Prime Minister ought to appoint new peers – in particular from legal backgrounds, as there are few lawyers amongst Conservative working peers. But the risk remains that peers would – in the absence of a majority government – feel free not to follow the Salisbury Convention in ultimately allowing government bills to pass, but opt instead to exercise their judgement on individual pieces of legislation.

This view is supported by evidence submitted by the Hansard Society to the House of Commons Political and Constitutional Reform Committee inquiry on the formation of the Coalition government in 2010. It maintained that the endurance of the Salisbury Convention would ultimately be:

a matter of peers’ political judgement—if they sense strong public support for their stance they may feel empowered to face down the government. On contentious issues, particularly of a constitutional nature, they may therefore not feel bound to acquiesce to the will of the Commons if the proposed measures do not carry the authority of having been manifesto commitments.

As my colleague Stephen Booth argues, while there is ample room for debate on the potentially contentious issues covered by the eight bills that the government plans to table in relation to Brexit, the risks associated with the nuclear option of peers, or indeed MPs, outright rejecting a piece of Brexit legislation means this situation is relatively unlikely to come to pass. However, as the Labour leader in the Lords Lady Basildon argued today, if the government is seen to be seeking an expansion of its executive powers through the use of statutory instruments (so-called ‘Henry VIII powers’), then opponents in the Lords and Commons could feel empowered to resist.

Confidence and supply – shared manifesto pledges might hold democratic weight

Under a confidence and supply agreement of the kind unveiled today, one could argue that its terms count alongside pledges common to both the Conservative and the DUP manifestos as having received electoral validation on the basis of a combined Commons’ majority.  On Brexit, a line-by-line examination of each manifesto reveals common ground, including, amongst other things, securing the rights of British citizens in the EU and EU citizens in the UK (unlikely to be contentious for the House of Lords), maintaining the Common Travel Area and ending the jurisdiction of the European Court of Justice (potentially much more contentious). With the confidence and supply Agreement now formalised, including a specific promise from the DUP to support the Conservatives on Brexit legislation, it may be that the Lords now feel bound to allow legislation in these areas to pass.

But even taking this literalist approach to the manifestos, there is still room for doubt on major questions of policy detail. For example, both manifestos seem to be in a similar space on the issue of whether or not the UK should remain a member of the EU customs union and the single market. Each party calls for some form of free trade and customs agreement with the European Union, but only the Tories make explicit reference to leaving them in their manifesto. This is an area the Lords and opponents in the Commons will be keen to scrutinise as legislation is developed.

The spirit of Salisbury could yet preserve the Commons’ primacy

Nevertheless, a looser interpretation that applies the spirit of Salisbury could still deliver a compromise that balances the competing claims of the two houses. This was the strong impression given earlier this week by Lady Basildon in her response to the Queen’s Speech, in which she highlighted that every recent examination of the functioning of House of Lords procedures suggested that the tenets of the Salisbury convention should continue to apply.

This House recognises the primacy of the Commons, and that is how we have always conducted ourselves. What is also clear in those reports, and from our own experiences, is that the House of Commons has primacy, not the Executive or Government.

The latter portion of these remarks has been seized upon as an indication of trouble for the government:

But this seems an over-interpretation. In saying that the Commons has primacy, Lady Basildon simply emphasises that the Lords should respect any bill with majority support in the Commons as the considered parliamentary expression of the democratic will. Under this prescription, it is irrelevant whether a bill arrives unamended or required concessions. This point became more clear as she continued:

Should the House of Commons send this House legislation that has been amended from the Government’s original intentions, their Ministers should not seek to use your Lordships’ House to thwart the mandate of the democratically elected House.

This is a clear warning to ministers and supportive peers not to overstep by attempting to amend bills in the Lords in line with government objectives against the express will of the Commons. In adding this nuance, Lady Basildon appears to be upholding the spirit of the Salisbury convention by taking the will of the Commons, however constituted, as the valid expression of the will of the people. Intriguingly though – she did not refer to manifesto commitments. Is she therefore suggesting a further weakening of the status of the Lords?

Constitutional flexibility could prove an asset at this point

These are just some of the possibilities in our current situation related to the Salisbury convention. Wiser heads have considered the issue with differing results, (see Steve Peers, Martin Thomas and Albert Weale for a range of opinion), but as the Professor of Public Law Mark Elliott argues, “unduly legalistic analysis of conventions must be avoided.” Bizarre as it may sound, the convention’s susceptibility to variable interpretation may prove to be its most attractive feature for the demands of the moment.

To close the argument on the merits of leaving Lords’ powers uncircumscribed, let us return to the 2006 debate referenced earlier, and allow one Theresa May, then Shadow Leader of the House, her right of reply:

There is a danger that codification could remove the flexible relationship between the two Houses that enables better governance […] Manifestos are often drawn very wide, so it is difficult for anyone to say exactly what was meant in terms of legislation. The danger is that codification will mean that decisions as to what such manifesto commitments mean are not taken by elected representatives in this House, but are left to lawyers, who will have to find a way through the problems caused by trying to codify the conventions.

We have seen that there are day-to-day political consequences as well as broad constitutional resonance to the Salisbury convention. But in the current situation, provided that cool heads prevail and there is a constructive dialogue between the Houses at either end of the Palace of Westminster, the outcome of representative majoritarian pressures in the Commons and due consideration in the Lords could still be a Brexit that embodies both popular legitimacy and deliberative expertise. Let’s hope that the flexibility of the UK’s constitution, such as it is, proves its value in this case.