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By Baroness Smith of Llanfaes
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Ping Pong: Has the House of Lords become a House of opposition?

7 min read

The House of Lords inflicted a record number of defeats on the government in the last parliamentary year. As a new session begins, Sienna Rodgers looks at why the relationship between the two chambers has become so tense

Westminster observers have remarked in recent months that if one walks past Parliament at night, the House of Commons will likely have the lights off, while the House of Lords is often illuminated late into the evening.

Many peers believe the heavy lifting of legislative scrutiny is increasingly their responsibility. Crossbencher Lord Turnbull, a former head of the civil service, says he is reminded of his schooldays, when his French textbooks would arrive with the first few pages separated, but the rest uncut. When receiving bills from the Commons, more often than not serious line-by-line scrutiny has not taken place past the opening sections of the bill. 

Since programme motions were introduced in 1998, every government bill is timetabled in the Commons. The time available for debate at each stage is predetermined, unlike in the Lords where there is no limit. “The consequence of that is that there are sometimes whole chunks, and quite often rather important chunks, of bills that get little if any debate in the Commons before they come to the Lords,” as one peer puts it.

“The Lords has become, recently, a House of opposition”

The Lords enjoy procedural flexibility: they do not have the same restrictions on time and all amendments are automatically discussed, rather than limited through selection by the Speaker as in the Commons. 

While they do not have the power to reject legislation outright, peers can amend bills, and if these are not accepted by MPs, parliamentary ping pong ensues. Legislation is passed back and forth between the two Houses until a compromise is reached or concession made. And there has been a lot of ping pong since Boris Johnson took power.

The Lords inflicted a record 129 government defeats in the last parliamentary session, 2021-22, and 114 defeats in the one before, 2019-21. Only one previous single session has seen such a high number: that of Harold Wilson and James Callaghan in 1975-76, defeated 126 times, and in rather different circumstances – their governments were unstable and never had anything like Johnson’s effective majority of 75.

Nikki da Costa, former director of legislative affairs at No 10, has argued that the House of Lords is guilty of overreach. “The levels of defeat that the Lords have inflicted have been sky-high recently,” she told Times Radio in October. “The Lords has become, recently, a House of opposition. And that is shaping how this Prime Minister views the Lords.”

If it sounds like a threat, da Costa’s perspective is shared by a number of Conservative MPs, who claim opposition peers have started to prioritise political campaigning over appropriate scrutiny. Ludlow MP Philip Dunne tells The House: “In the past, the Lords would generally be mindful that if they put too many amendments to the Commons, they would be likely to lose them all because the Commons would get upset, or the government of the day, if it had a majority, would just say, ‘well, we’re not going to take any of these’. That seems to be what’s been happening in the most recent sets of bills this last month. The Lords somewhat overreached themselves.”

Conservative MP and trade minister Penny Mordaunt makes a similar complaint in her book Greater: Britain After the Storm. “Their lordships improve legislation, but they also try to initiate and/or stop legislation. No one asked for that and it shouldn’t happen,” she wrote.

One reason for the increased ping pong under this Prime Minister is the nature of his government’s legislation. The House of Lords takes a keen interest in constitutional matters, where many peers can offer expertise. With bills coming through on elections, fixed-term parliaments and voter registration, it is no surprise that the Lords has been particularly engaged.

The Lords have more freedom when the winning party’s manifesto is a little vague in its aspirations. For example, the 2019 Conservative manifesto promised to introduce “identification to vote at polling stations”. It did not specify that this should be photographic ID. Under the Salisbury Convention, the Lords does not oppose legislation delivering on a manifesto pledge, but the lack of precision in the Tory offer to the electorate allowed Lords to push – unsuccessfully – for non-photographic forms of ID to be accepted.

And, when it comes to legislation, size matters. “The extent to which the Lords has been able to hang things on bills is a direct consequence of the choices the government has made about how narrowly or broadly to draw their legislation,” says Dr Hannah White, deputy director of the Institute for Government.

“Christmas tree bills,” as they are known in Westminster, attract more changes from the Lords, which translate to increased government defeats. The scope for amendments depends on the long title of the bill. When the title is broad – such as with the Elections Bill, the Environment Bill, and the Police, Crime, Courts and Sentencing Bills – ministers are choosing to bring in lots of changes at once, using legislation as a declaratory tool, at the expense of easy legislative management.

“We’re not just talking about an insult to the House of Lords – we’re talking about an insult to the House of Commons”

There is also the matter of rushed, or poorly thought-through, legislation. In January, the Police Bill saw the government defeated 14 times in a single day – the most since the Lords was reformed in 1999. “They did a pretty extraordinary thing in proposing a whole raft of new material, including new criminal offences, at the report stage in the Lords when the bill had already passed through the House of Commons. And the Lords rejected quite a lot of that new material,” explains Professor Meg Russell, director of University College, London’s Constitution Unit.

“Now you could be in the government and jump up and down and say ‘that’s completely outrageous, the Lords are out of order’. But it was arguably pretty out of order for the government to propose all of that new material at Lords report stage.” 

This approach prevents both the Lords from scrutinising the measures adequately and the Commons from seeing it at all. “We’re not just talking about an insult to the House of Lords – we’re talking about an insult to the House of Commons,” Russell adds.

Is the government approaching legislation with the wrong attitude? A senior Conservative peer who has served in both chambers tells The House: “This government is the worst government in all my years in Parliament: the least able to recognise that Parliament is not answerable to the government, but that the government is answerable to Parliament.”

A former cabinet minister now sitting on the Tory backbenches of the Commons agrees: “We’re in a situation where the government can be quite careless about quality. They don’t have to think about it because they’ve got a great big majority. The arrogance that ‘we’ll just get it through the Commons whatever’ is going to lead to really deficient legislation.

“The government needs to be careful here, because if they don’t put forward good quality legislation, the Lords will continue to do things – and at some point, they will stop a bill.”

We have not yet reached that point. “When we talk of a defeat, remember, we’re not talking about entire bills being struck out. That just doesn’t happen, or it happens very, very rarely,” points out Baroness Chakrabarti, a Labour peer. 

Unlike the New Labour government, the Johnson administration has not been forced by the Lords to withdraw whole bills, nor has it resorted to using the Parliament Acts to force through legislation. 

Headline defeat numbers do not provide a complete picture either. “It’s easy to keep score on the number of defeats. A more helpful approach would be to look at what happens in the end,” says Chakrabarti, who has been at the forefront of recent Lords fights to amend key bills. Ultimately, the most recent parliamentary session ended with the Lords conceding to the government, as Labour stopped insisting on its changes – including Chakrabarti’s bid for the Nationality and Borders Act to comply explicitly with the Refugee Convention.

While ministers are exasperated by the increased level of ping pong, peers insist they are simply doing their job – and many are concerned about the quality of legislation coming through. As a new parliamentary session begins, the relationship between the two Houses shows every sign of becoming more, not less, uneasy.

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