The European Union (Withdrawal) Bill returns to the Commons today for consideration of the numerous amendments made during its eventful passage though the Lords. Some commentators have accused the Lords of exceeding their constitutional authority, with the Salisbury convention being cited in defence of this position. David Beamish discusses how the convention operates and argues that the Lords have not breached it so far.

The European Union (Withdrawal) Bill has prompted much discussion of the role of the House of Lords in passing legislation, including references such as this to the Salisbury convention:

‘ …the Lords has effectively torn up the Salisbury convention: that manifesto promises by the governing party should not be blocked by an unrepresentative upper house’.

That passage, from an article in The Times by Matt Ridley, who sits in parliament as an elected hereditary peer, relates to the amendments made by the Lords to the Withdrawal Bill and in relation to the proposal for a ‘Leveson Two’ inquiry. A day later, Iain Martin wrote in The Times:

‘This week there was the worst illustration of the problem yet. The Commons thought that it had settled the question of press freedom, when it voted against moves to hold yet another inquiry into the press. But the Lords had another go on voting down the government, in breach of the convention that bills which enact manifesto commitments should be passed by the Lords.’

It is perhaps ironic that this ‘convention’ is now being cited in relation to the difficulties which the House is making for a Conservative government. It was originally introduced by a Conservative opposition which dominated the House of Lords following the election in 1945 of a Labour government with a large Commons majority but only a small representation in the Lords, which then consisted entirely of hereditary peers. 

So what is the convention? Over the past 25 years it has been the subject of considerable debate and discussion. In 1993 the late Lord Simon of Glaisdale (a former Law Lord, and minister in the House of Commons) introduced a House of Lords debate on the subject. He summed it up as follows:

‘I pass shortly and quickly to the Salisbury doctrine; namely, that your Lordships do not vote against the Second Reading of a Bill which is foreshadowed in the election manifesto. I do not think any of your Lordships would have doubted that measure at the time it was propounded, when there was a Labour government with a strong majority in the other place and a reforming programme and an overwhelming Conservative majority in your Lordships’ House. I think your Lordships would readily agree that that was a very sensible proposal.’

Lord Simon described it as a ‘doctrine’, and initially it was essentially no more than a self-denying ordinance by the Conservative opposition in the House of Lords.
It is worth noting that the reference to ‘the election manifesto’ seems to have had the significant side-effect in recent years of encouraging parties, and notably the Conservative Party, to spell out legislative proposals in some detail in manifestos in order to benefit from the protection of the convention. The course of the 2017 election campaign, and the outcome, may perhaps have put the wisdom of that approach in question.

The report of the Joint Committee on Conventions chaired by Lord Cunningham of Felling in 2006 went in some detail into the history and effect of the convention. It described it as the Salisbury-Addison Convention, on the basis that it began as an understanding between the Marquess of Salisbury, the post-war opposition leader in the House of Lords, and Viscount Addison, the Leader of the House of Lords at the time. The Committee considered it to have evolved into the following:

‘In the House of Lords:
A manifesto Bill is accorded a Second Reading;
A manifesto Bill is not subject to ‘wrecking amendments’ which change the Government’s manifesto intention as proposed in the Bill; and
A manifesto Bill is passed and sent (or returned) to the House of Commons, so that they have the opportunity, in reasonable time, to consider the Bill or any amendments the Lords may wish to propose.’

The evidence given to that Joint Committee by some Liberal Democrats noted that the original agreement ‘existed only between the Conservative and Labour parties because and on the assumption that the Conservatives were the dominant force in the House of Lords. It did not involve either the Liberals or the unaligned Peers.’ It went on to quote with approval the statement in How Parliament Works that ‘the Salisbury convention is perhaps more a code of behaviour for the Conservative Party when in opposition in the Lords than a convention of the House’.

More recently the House of Lords Constitution Committee has looked at the convention twice. In 2014 its report on the constitutional implications of coalition government considered the operation of the convention when there is a coalition government, and concluded that the convention ‘does not, strictly speaking, apply to measures in a coalition agreement’. In 2017 the Committee published another report devoted specifically to the convention, focusing on its application when there is a minority government. This time the report was simply a vehicle for publishing submissions on the subject from the party leaders in the House of Lords, the Convenor of the Crossbench peers, and Professor Meg Russell, Director of the Constitution Unit.

While there may be differences of emphasis, it is fair to say that it is generally accepted that, in so far as the convention requires the Lords to show restraint in dealing with a bill passed by the Commons, that means not rejecting or unduly delaying a bill or making ‘wrecking’ amendments.

In the case of the Withdrawal Bill, the great majority of the 196 House of Lords amendments about to be considered by the Commons were introduced by the government. The others may all be regarded as an exercise of the House of Lords’ time-honoured role of inviting the Commons to think again; putting forward amendments designed to improve the bill, but without any implied threat of blocking progress if the Commons does not accept them.

Given that the referendum asked a question only about leaving the European Union, and not about what the UK-EU relationship would look like afterwards, an amendment providing for a negotiating objective of remaining within the European Economic Area cannot be considered ‘wrecking’. As it happens, that particular amendment was passed without the support of the Labour front bench and will doubtless be rejected by the Commons. The Lords amendment providing for parliamentary approval of the outcome of negotiations with the European Union certainly could not be considered a wrecking amendment, and although it has not been accepted by the government, it has prompted the tabling by David Davis of amendments in lieu. An amendment requiring a second referendum might perhaps have been criticised as ‘wrecking’, so it is worth noting that a Liberal Democrat amendment on that point was decisively rejected by the House of Lords.

Should the House of Commons reject most or all of those amendments, and if the House of Lords were once again to insist on their inclusion, the effect would indeed be to delay the enactment of the bill. With less than nine months until ‘exit day’, such delay might well be seen as a wrecking tactic, and for that reason it seems unlikely that any motion to insist on an amendment would command a majority in the Lords.
Meanwhile it is clear that talk of ‘tearing up the Salisbury convention’ is premature. Those who disagree with the Lords amendments may reasonably protest that they are misguided, but surely not that the House of Lords has behaved in any way unconstitutionally.

About the author

Sir David Beamish was Clerk of the Parliaments, the most senior official in the House of Lords, from 2011 to 2017. He is an Honorary Senior Research Associate at the Constitution Unit and a member of the Expert Working Group on the EU (Withdrawal) Bill and the Rule of Law set up by the Constitution Unit and the Bingham Centre for the Rule of Law.