The µModernization¶ of the United Kingdom Parliament Introduction Common assumptions about Parliament y Parliament is at the apex of the

political and governing processes in the UK. However, it is increasingly obvious that Parliament¶s centrality is declining for a number of reasons. o The HC is dominated by the Executive (normally referred to as the government) in whose hands real power and initiative lie. To this extent, the centrality of Parliament, as distinct from the centrality of the executive, is a myth and raises issues as to whether and how Parliament can reassert an independent and central role and, if it cannot or will not do so, whether alternative and supplementary arrangements should be made to hold the executive to account. o Devolution means that the UK Parliament the Executive are having to share power with, defer to, or compromise with other bodies. o Enactment of the HRA 98 has reduced reliance on the two Houses as providing political protection against abuses of power by the Executive, and has increased legal, judicial protections against such abuses. The growing focus on law-based constitutionalism in preference to µthe political constitution; that flows from the last two points (and EU membership) means that Parliament operates increasingly within legal and political constraints. The UK constitution has been trying to adapt to these new constitutional realities. The role of the judiciary in holding the executive to account for its policies and administration, including for compliance with European law and the ECHR, is increasing in importance as the influence of Parliament appears to wayne. Parliament and government have been making internal adaptations to meet these new needs. Increasingly, the possibility of transferring some of the current functions of Parliament to outside bodies is under consideration.

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Parliament¶s Relations with Government y Largely regulated by convention. E.g. it is a fairly settled tenet of the system that the government is entitled to get its business through the HC and have it considered in the HL.. It is accepted that it is the sole prerogative of the HC to withdraw confidence from the government so that a general election should take place. HL generally accepts that its role is secondary, in recognition of the fact taht the government and the Commons have democratic legitimacy flowing from election which the Lords have not been able to claim. However, it has come to be accepted that the Lords have important functions in the revision of legislation; functions in delaying legislation for the Commons or the govt. to reconsider a proposal where there are serious concerns about its wisdom; a constitutional watchdog function etc... The very fact that they are not elected and are relatively independent of party and that the HL contains members particular skills, expertise, and interests in various activities would serve to legitimate much of their activity if it took place outside somewhere called µParliament¶ such as a constitutional council or a council of state. But difficulties are undeniable caused by the fact that this is a µHouse of Parliament¶ whose members are not elected.

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Relations between the House of Commons and the House of Lord s HL basically performs checking functions The House of Commons

The Role and Function s of the House of Commons This is well settled in theory at least: o o o o o o To provide the government of the day; To sustain the government in power by passing its legislation; To give-or refuse-consent to taxation; To authorise and control public expenditure; To secure redress of constituents¶ grievances; and Generally to hold the Executive to account for its policies and the conduct of government

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Elected chamber and so it is natural that most of these functions are dominated by partypolitical considerations It is pre-eminently a political chamber First past the post system tends to produce majorities in Parliament and encourages competitive rather than cooperative relations between the parties

It is useful to summarise briefly the principal reforms of the Commons that have been achieved since about 1997 and to consider whether they have in practice improved the Commons¶ performance of its functions. Individual Ministerial Responsibility: Government¶s Duty to Parliament y y A major challenge has been, and remains, to give teeth to the convention of individual ministerial responsibility to Parliament This was formalised through the resolutions on ministerial accountability passed by each house just before the 1997 general election and were incorporated into the Ministerial Code by the new PM, Tony Blair, who accepted that the PM is responsible to Parliament for enforcing these rules. He also agreed to meet members of the HC Liaison Committee (consisting of the chairs of select committees) twice a year

The Scrutiny of Legislation Problems y y Not conducted according to any particular criteria Tends to be highly politically partisan

A number of supposedly modernising measures have been taken both to improve HC scrutiny of legislation and to facilitate the passage of government legislation. The two objectives are commonly at odds with each other y y y Scrutiny has been improved by publication of explanatory notes with Bills and the introduction of pre-legislative scrutiny of some draft Bills Further, the acceptance of the carry-over of some bills from one session tot he next would take time pressure off scrutiny and allow it to be done thoroughly The establishment in 2002 of the Joint Committee on Human Rights has produced focused, expert, and independent scrutiny of bills Measures designed to facilitate the legislative process include the timetabling or programming of bills; however, a Deputy Speaker of the House expressed the view in 2003 that the more comprehensive introduction of programming had not led to Bills being scrutinised more

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thoroughly or completely than before; programming was capable of being used constructively but in its current form all that has been achieved thus far is legislation in a hurry

The Select Committees y These committees now have an agreed explicit set of core objectives. However, they remain autonomous in how they interpret these core tasks. Several have refused to take on scrutiny of draft bills and parliamentarians may not have the time nor skills to do so. Dawn suggests that perhaps the role of experts and lawyers ought to be institutionalised in some way. Perhaps as an extra-parliamentary advisory committee perhaps modelled on New Zealand¶s Legislation Advisory Committee. The government accepts that it has an obligation to respond to select committee reports within two months of their publication Some like the Public Administration Select Committee (PASC) have been outstanding but on the whole it cannot be said that there has been a systematic improvement of committee work in the HC. Note that a row blew up in 06 over the responsiveness of ministers to reports of the Parliamentary Ombudsman to the PASC. (The whole pension issue) The point is that the Ombudsman reports to Parliament, in particular the PASC; there being no legal redress for maladministration, the effectiveness of ministerial responsibility to Parliament is crucial for the workability of the system and for the victims of maladministration. The performance of select committees in questioning those appearing before them or obtaining the documents they need is unsatisfactory in a number of respects. o Highlighted in the arms to Iraq affair where the related inquiry conducted by Sir Richard Scott achieved a high level of quality of investigation and report which could not possibly have been achieved by a select committee. Questions have been raised about the capabilities and capacities of select committees in holding government to account as it is not easy to pin responsibility on a government that claims it has not erred. Should some of these accountability functions be transferred to independent expert bodies report to Parliament? And if so, what clout could or should such bodies have? Parliamentary committees have themselves expressed concern about their capacity or capability in holding government to account ± in imposing ministerial responsibility. Also, the ways in which departmental select committees are composed has attracted criticism over the years. By convention, each committee has a majority of government party members and each party¶s whips decide which of their members should be nominated to each committee. Thus they remain vulnerable to manipulation be the party machines. Note in Oct 2003 the HC resolved that hte chairs of investigative committees should receive additional salaries of 12.5k/year and agreed that committee chairs would serve for only 2 Parliaments o A difficulty here is that the chair¶s reliance on the whips for the reappointments to committees after an election (and thus the additional salary) might undermine their independence o It would be surprising if a committee chair were to turn down an offer of a government appointment simply for the sake of the salary that goes with the chair (which was an intention of the salary)

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Assessment of House of Commons Reform Read again The House of Lords

The Lords is entirely appointed. Majority of the members are life peers whom are appointed by the queen on the advice of the Prime Minister. The Prime Minister decides how many new members of each party to appoint as well as how many independents. The general aim being that the party balance in the Lords should be in a similar proportion to the Commons. Nominations from each party are submitted by the party leaders themselves and are accepted by the Prime Minister. For independents, the prime minister takes advice from the non-statutory Appointments Commission. In addition, the Prime Minister appoints some independents individually; generally only retiring distinguished civil servants. Further to this, the house has 92 hereditary peers and 26 Bishops of the church of London. It is worth noting that on the whole, the general consensus is that the Lords is excellent at its job. (All these figures are accurate as of October 2009) Conceptualising the Role and Functions of a Second Chamber y It is natural that the HL, being less political than the HC, should have come to be looked to as a kind of constitutional watchdog (though due to PS it can¶t perform the same watchdog role as many other second chambers of countries with written constitutions). This is strongly reflected in its committee work. And given the operation of the electoral and party systems, mean that almost invariably the government has a safe majority in the HC, the HL is accepted as having a role in making the government and the HC think again about controversial legislation and about the quality of legislation ± drafting, workability and so on. The capacity of the HL to perform its relatively apolitical functions has been incrementally increased in important ways in recent years o Part-aligned members are relatively free from party pressures being there for life o Presence of members mostly of distinction and with a great range of experience and expertise in various fields enables authoritative well informed debates o No party has a majority in the HL so issues have to be argued on merits rather than appeal to party loyalty

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The House of Lords in Action y The HL has established important and influential select committees to perform some watchdog functions o JCHR o Lords Constitution Committee o The HL EU Committee o Delegated Powers and Regulatory Reform Committee What has been happening is that the functions performed by supreme or constitutional courts in other countries are being institutionalised and internalised in the second chamber. They are intra-, not extra-parliamentary. But the ability to perform those functions and the legitimacy of its doing so depend upon tis composition and in particular the degree of party political penetration of its intrinsically apolitical, constitutional functions Self-restraint on the part of the politicians in the house is necessary to counter the predictable allegations of illegitimacy that will be made where commons bills are opposed by unelected members on party political rather than constitutional or other non-partisan grounds.

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Matching Function and Composition in the House of Lords Implications of these assumptions in favour of election (wholly or substantially) to the second chamber y Its position in relations with the Commons and with government could either be as a pointless rubber stamp for government decisions, or as a body that, having democratic legitimacy from elections, could hold up government legislation for partisan party political reasons

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It wouldn¶t (in Dawn¶s view) add value to the legislative process. A second chamber that was able to paralyse on party political grounds a government supported by a majority in the first chamber would tip the balance too far away from effectiveness and towards populism. Elected members wouldn¶t be well fitted to perform the important scrutiny and watchdog functions of the HL as they require large numbers of impartial and expert members. If party lists were drawn up by the parties regionally, they¶d be dominated by people with specials interests and expertise in the region but not much else. Also, those with such qualifications may be unwilling to stand for election on a party ticket.

Proposals for Reform of the Composition of the Second Chamber y y Major concerns are that the HL should have legitimacy and that it should continue to be able to perform its existing functions The role of the proposed independent statutory appointments commission in relation to party nominations if established needs to be clarified. In light of the cash for peerages scandal, it does seem like party members suggestions need to be vetted for more than propriety o Consideration of the situation points either to the parties themselves being placed under explicit statutory obligations to bring forward appropriate nominations to meet the needs of the House and merit criteria, or to the Appointments Commission imposing some kind of a veto or filter process over party nominations to secure that those appointed meet the needs of the House and merit criteria as well as needs of the parties.  It is worth noting that such a power could in theory suit party leaders as they could resist pressures from members seeking to exercise party patronage for peerages. A further difficulty (in terms of part pressure) would arise if members of the second chambers were entitled to retire from it and then stand for elections to the HC or the EP

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