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MPs Accused Of Leaving Lords To Pick Up Flack On Scrutinising New Laws

The Houses of Parliament (Alamy)

5 min read

Frustration has emerged that MPs in the House of Commons are increasingly bouncing the brunt of responsibility for scrutinising government legislation to the House of Lords.

There is also concern that contending with “rhetoric” woven into the creation of Bills by government in order to keep backbench MPs onside has caused peers’ workload to swell. 

“The Commons doesn’t really do the detailed scrutiny of legislation now,” Baroness Angela Smith of Basildon, Labour leader in the Lords, told PoliticsHome. Instead she felt MPs were focussing on “big political issues” while the “workability” of laws happens in the second chamber. 

The House of Lords faces a packed agenda of large and potentially controversial bills in the coming months, including the Levelling Up and Regeneration Bill, which had more than 500 amendments put forward by peers, and Retained EU Law, in which thousands of pieces of legislation derived from the UK’s membership of the EU must be reviewed and replaced or recycled. Government attempts to avert friction within the Conservative party over whether the latter must be completed by the end of this year have only exacerbated uncertainty over the workload making its way through the Lords. 

Smith, a former MP who has led Labour’s representatives in the Lords since 2015, acknowledged that peers do expect their role to include a greater degree of scrutiny than their counterparts in the Commons, but felt the gap between the work of the two houses has widened recently.

“I think up here, that frustrates people on the government and opposition side and crossbenchers, who think ‘that hasn't been examined, that hasn't been looked at, so we should’,” she explained. 

“The government thinks people are then being difficult. It's not being difficult, it's just doing the job that needs to be done.” 

Smith has also said that peers are seeing "huge rhetoric" from government when Bills are first introduced to the Lords, “but by the time it’s been through the Lords things seem to have calmed down a bit”. 

The rhetoric, Smith suggests, stems from ministers attempting to manage the mood on their own backbenches, if and when Lords may raise questions or propose changes to legislation that were not asked in earlier Commons stages. Wrangling in the Illegal Migration Bill over the status of vulnerable people such as unaccompanied children this week is a prime example. Immigration minister Robert Jenrick indicated that any such concessions would “incentivise” people smugglers, but proposed amendments in the Lords are now expected to water down the government’s hardline stance. 

"I think it’s mainly because the government is less sure of their own backbenches, so if we’re raising issues that haven’t been really properly dealt with in the Commons, government’s thinking ‘if the Lords do that, how are the backbenches going to react?’,” she said. 

“We’re raising quite reasonable and legitimate issues, that’s what makes the government nervous."

The House of Lords
The House of Lords (Alamy)

Smith added: “Lords doing outrageous things and the government shouting doesn’t matter, the Lords doing reasonable sensible amendments is what makes governments nervous.” 

Political historian at King’s College London, Dr Nigel Fletcher also observes that peers are "fixing genuine problems" with legislation and patching up areas that may have been missed in the elected chamber. 

"The amendments are put down in order to fix things that haven't been picked up in the Commons or haven't been debated in the Commons," he told PoliticsHome

“I think sometimes the problem that governments find is that there's a lack of understanding on the part of the Cabinet or ministers, who are mostly in the Commons, about how the House of Lords works and the approach they need to take.”

“And a lot of those amendments actually come from the government, they realise as the bill is progressing, that there are things that need to change, and they use the Lord's really as an opportunity to fix things.” 

However, Fletcher believes that parties have a “trickier relationship” with their members in the Lords than those in the Commons, as the whipping operation is “much more difficult” along party lines, with peers more able to vote in line with individual interests. 

“In the Commons the business managers have got much more leverage over government MPs, and, of course, they've got a majority there as well,” he continued.  

“Whereas in the Lords there's very little that the whips can do ultimately to persuade them against their will to vote for a piece of legislation.”

A report from the Institute for Government think tank in December stated that the “time the House of Commons dedicates to considering government bills is on a downward trajectory”. 

Their data suggests that Lords spent just under 50 per cent of their time with legislation on the floor of the House in the 2019 to 2021 parliamentary session, compared to around 30 per cent in the Commons. 

The IfG said MPs “must choose wisely how to spend their time” given the demands on their schedules and priorities, and that even where they are keen to apply laser focus to legislation, limited “time and resources constrain their ability to participate meaningfully and constructively”.

“For many, legislative scrutiny is simply not their priority, especially when it is unlikely to result in tangible changes to the outcome,” the researchers said.  

“MPs may also want to prioritise activities that are more visible and understandable to the public and specific constituents, not least to demonstrate their value at the next election.” 

But Fletcher felt that an overreliance on the additional scrutinising function performed by the second chamber is “built in” to the government’s expectations, and governments only take the opportunity to add amendments themselves when they see elements they need to change. 

"A lot of those amendments actually come from the government, they realise as the bill is progressing, that there are things that need to change, and they use the Lords really as an opportunity to fix things," he said. 

“It's now built into the process that the government will put forward legislation, knowing that it has this opportunity.

“If they didn't have that opportunity to do it, then there would be I think probably much more scrutiny in the Commons, you would hope.”

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