The House of Lords
The Centre's Evidence to the Commission
PART 4: A Reformed Chamber: The Senate.
Duties and Powers of the Senate.
A chamber that was little more than a "talking shop," or which merely advised or aided the executive and the other chamber, would win little respect, would attract less able and energetic Senators and would hardly warrant the expense of its existence.
A popularly elected Senate would be distinguished from the other chamber not by degree of legitimacy but by role. It would be entitled to a fair share of power. The majority party in the other chamber would continue to form the Government. The ability of that chamber to act as a check on executive power would, therefore, continue to be compromised. Acting as such a check would be a key role for the Senate. Only a chamber with democratic legitimacy would be entitled to do so.
There is another reason for a powerful Senate, however. By providing for the direct representation of those nations and regions in Parliament. the Senate would be particularly able to counter the alienation from the centre that many citizens of the nations and regions feel.
The Senate should have these duties:
- Initiating legislation that was not primarily financial in nature.
- Scrutinising, revising and approving legislation initiated by the other chamber, including subsidiary legislation.
- Scrutinising European legislation and monitoring British relations with the European Union.
- Advising on and consenting to public appointments within the domain of the executive.
- Investigating the conduct of the executive and questioning government ministers.
There is no reason for imposing any change in the way in which the second chamber organises its committees but as an autonomous body it should have the freedom to change its approach if it wishes.
The power to initiate legislation is essential. It would ensure that the programme of the executive did not monopolise the legislative agenda of Parliament and that the legislative needs of the regions were not neglected. It would guarantee the status of Senator and attract more able candidates.
To enable that chamber to be effective as a check on the executive all legislation should require the assent of the Senate. However, recognising the crucial importance of the government's role in the national finances, only the Commons should have the power to initiate finance bills. Both chambers should be able to initiate other bills.
It is also vital that the Senate have the right to block the passage of legislation introduced in the Commons, for only thus may executive excesses be prevented. The Commons may not be relied upon to do so. We believe that in a mature democracy like Britain this would make for consensus rather than conflict or instability. For there would need to be co-operation between both chambers and the executive in order for any of these elements to achieve their objectives. A procedure similar to the "conferences" of House and Senate representative in the American Congress would be required for the resolution of differences on proposed legislation between the two chambers. The compromises that would be required would protect against extreme measures.
In order that the independence of the Senate be not compromised and in order that it retain its distinctive character, the Prime Minister should be able to appoint as ministers only members of the House of Commons. These benefits override the dis-benefit of the narrowing of the field from which ministers may be drawn. This restriction would end the unsavoury practice of appointment to a seat in the legislature as a device to allow one who has not been elected to Parliament to serve in the government.
We recognise that such a Senate would meet only two of the criteria set out in the White Paper by the government. We would point out, however, that although the commission may be bound by those criteria, Parliament will not be similarly restricted when it legislates on these matters.
Our proposals would protect the pre-eminence of the Commons that chamber would keep its peculiar responsibility for forming and removing the government. And its exclusive right to initiate finance bills.
The Senate as proposed would complement the other chamber. However, it is wrong to suggest that it should never challenge. We hope fervently that the commission will not succumb to the apparent desire of the government that the reformed chamber should function as a acquiescent helpmate rather than as an equal partner. Democracy and majoritarianism are not the same. Neither chamber should have the right to exert its will without restraint, or to trample on the rights of minority groups, on the grounds that it has the support of the majority of the electorate. At times the Senate will have a duty to challenge and only thus could it act as a constitutional watchdog.
The role of constitutional watchdog is not one that a Senate alone could fully undertake. It would have a duty, of course, to monitor its own actions for their constitutional compliance. And it would also act as a on check on any constitutional improprieties of the other chamber and the executive. However, as an equal partner in the legislative process it would be capable of itself misusing the constitution. It should fall, therefore, to another branch, as happens in the United States, to rule on whether legislative or executive acts are unconstitutional. A separate supreme court should carry out that task.