Back in the formative days of parliament, petitions would often by committed to a group of the King’s Council – known as triers – who could either make changes and report the petition back to parliament (if it was a petition concerning public policy) or determine the case for the petition and report it back (if it dealt with granting an exception to general law).
By 1280, parliament was becoming overwhelmed by private petitions, so they passed a resolution allowing the less controversial of these private petitions to be dealt with by judicial tribunals, with only the most important being considered by parliament.
From around 1400, during the same period as the non-noble and non-religious members of the King’s Council (clerks, judges, etc) were gradually forced out of the developing House of Lords, petitions were occasionally committed to a group of Lords instead of the triers (who still included judges) or other outsiders – even MPs! No records survive of how these were appointed, but we know that by the 1600s it was described as ancient practice to select members for committees in proportion to their benches on peers from each bench standing and saying their name to the clerk who would keep writing until the places were filled. The chairman was usually the Lord with the highest precedence (so the oldest member of the highest rank – Duke, Marquess, Earl, Viscount then Baron – on the committee).
During the 1500s, the word ‘petition’ was increasingly used to refer to the original application for a law to be changed, made or repealed and the text passing through parliament became known as a ‘bill’. We know during this time that the number of bills actually committed varied greatly – anywhere between twenty to sixty percent of bills could be looked at by a committee in any one session.
The Great Standing Committees
The House of Lords had two great standing committees that were first mentioned in the early 17th Century – the Committee on the Customs, Orders and Privileges of Parliament (later the Committee of Privileges) and the Committee on Petitions. By this time, nearly all bills were sent to a ‘Select’ Committee of usually five or six members in this time. Judges and lawyers were commonly assistants to committees on bills.
The Committee on Petitions, in 1621, could also be advised by judges and lawyers, but its workload increased very quickly and it devolved some of its work to subcommittees of five members. The Committee on Petitions could reject any petition by simple majority vote or a member could bring in a bill to respond to the petition.
By 1640, the workload of this committee became too great again, and the House ordered them to reject all petitions better looked at by the Courts of Law or Chancery while still examining those that couldn’t be resolved outside of parliament.
Towards 1700 it became the practice of the House to appoint to select committees on public bills all those who were in the House at the time of appointing with the chairman no longer the most senior member – presumably some form of election was required. As this process accelerated, it became common practice to commit public bills not to a Select Committee but to a Committee of the Whole House – a procedure first used in 1606, but one which dominated by 1700.
During the 18th Century, any member of the House could speak on the Committee of Privileges, and indeed it became the custom that all members were appointed to any select committee on a private bill – it was ‘open’ – and that the peer who sponsored the bill became the chairman of that select committee with all the powers and privileges that implies!
Reform and Consolidation
Committees again began to be used more often from 1800 onwards. Appeal committees, of three judges, were created in 1812 to resolve disputes over judicial standing orders and other ‘interlocutory matters’. Public bills were sometimes, albeit rarely, referred to Select Committees for amendment if they were complex (or peers wished them to die a slow death) sometimes before being recommitted to Committee of the Whole House or after the Committee of the Whole House had begun – bills concerning trade were traditionally referred automatically and motions to refer a bill to a Select Committee were by convention rarely refused.
In 1837, the House of Lords clamped down on so-called open committees and the abuses that they entailed, and a Committee of Selection was formed to appoint the select committee for a private bill which normally numbered five peers. No other peers could participate, and all members of the committee were selected because of their lack of stake in the bill.
The House of Lords, seeing the benefits of the reforms on private bills in the Commons, adopted their procedure and delegated the work of the Committee on Petitions to non-parliamentarians known as examiners in 1855 for unopposed private bills, and in 1858 for all private bills. The Lords also instituted a Standing Orders Committee of their own that petitioners could appeal to on a point of procedure. For the committee stage of private bills however they didn’t create a Committee on Railway and Canal Bills as the Commons did.
In 1888, a Select Committee was set up to examine the Standing Orders relating to public business, as happens every so often. An intervention in the debate was made by one Lord Herschell, a Liberal, who asked if the committee could consider standing committees for public bills akin to the Grand Committees then used in the House of Commons to consider drafting revisions rather than important policy issues.
The report was radical in its proposals – up to four Standing Committees of twenty to fifty peers would take their share of all bills passing through the House, with bills not usually being recommitted to the Committee of the Whole House. The eventual changes to standing orders the following year were somewhat less unconventional: committal to Standing Committee was an alternative not the norm, with all bills being recommitted to the Committee of the Whole House, and the number of members was between fifteen and a hundred and fifty.
Two committees were appointed in 1889 – one taking bills ‘relating to law’ (forty members) and the other ‘general bills’ (sixty). They took on 77 bills in their first two sessions and made substantial changes, but were cut down to size in 1891 because peers as a whole felt that they were losing power to the peers who were on Standing Committees and rather than being the revising bodies they were intended to be, they were taking on political issues before the House as a whole could look at them. After these changes, there was only one Standing Committee of seventy-two members which would take place after the Committee of the Whole House.
Until 1900, after a good decade of being primarily revising bodies, they took on their role with gusto, if not as much as before the 1891 changes. Their importance gradually declined, especially from 1904 onwards and fewer peers attended and fewer bills were sent to Standing Committees. By 1909, the situation needed to be looked at. The Earl of Camperdown chaired a committee set up in the following session which recommended the abandonment of the Standing Committee experiment which had in any case died a slow death already.
Committees die down
By this point, Select Committees were only *very rarely* used to consider public bills; the Select Committee procedure has never since found favour as a regular part of scrutiny of bills except for specific controversial bills. The strong impulse of the House to allow all members to participate and vote has led to a strong focus on Committee of the Whole House. It was around this time that the Joint Committee on Consolidation Bills was set up to deal with bills that only consolidated existing acts rather than producing new policy.
In 1924, the Select Committee on Special Orders was set up to consider rules requiring an affirmative vote of the House of Lords. It did not look at the merits of the rule, but it did look at the technical aspects. Traditionally, the Special Orders Committee tended to look at rules on utilities under private legislation rather than public legislation.
Little changed over the next forty years; as the number of private bills declined the number of Select Committees appointed to consider them declined accordingly. One prominent change was that after the House of Commons was bombed in the Second World War, the Law Lords moved their hearings to a nearby committee room to escape the noise of the reconstruction and formed Appellate Committees to hear cases. Appeal committees, also composed of law lords, also became the organ which chose which cases would be heard.
Taking matters into their own hands
In 1968, with the apparent refusal of the House of Commons to reform the Lords in a way in which they wished to be reformed, they looked again at their procedure to find ways of improving themselves without fundamental reform, under a committee chaired by Lord Beswick. They created the procedure of committing a bill to a ‘Public Bill Committee’ where the whole House could debate and move amendments but only the members of the committee could vote. They were advised to try to amend only by unanimity and once the bills is reported, it goes straight to report stage. This was used very sparingly despite a good reception early on due to a few bad experiences with controversial bills.
From 1972 to 1975 there was a rash of new and renewed committees. The Joint Committee on Statutory Instruments was set up to examine all statutory instruments for drafting issues. The European Communities Committee would examine selected European documents or other matters in-depth rather than the broad-brush approach of the Commons. With six (later eight) subcommittees examining a particular area of the European Communities, and most members co-opted from the House as a whole, up to sixty members participate in scrutiny of European affairs and as such it was considered much more successful and authoritative than its Commons counterpart. The Special Orders committee was replaced with a new Hybrid Instruments Committee with essentially the same functions.
In 1977, a rather radical report was published speculating on a system of seven or eight committees looking at domestic policy areas to complement rather than compete with the Commons. When the House of Commons ended the Science and Technology Committee in 1980, the Lords soon took up the baton and created their own version which is very well-respected. The down-side to the creation of so many Select Committees on broad policy issues was the decline in appointing ad-hoc Select Committees on specific issues of public policy.
The Delegated Powers (later and regulatory reform) Committee was formed in 1994 after a report by the Jellicoe committee on committee work in the House in response to a general feeling across the House that their scrutiny of order-making powers was insufficient. The same report also proposed a ‘Special Standing Committee’, later renamed ‘Special Public Bill Committee’, to be used for certain non-controversial bills, taking the committee stage off the floor of the House where evidence can be taken, speeches made and amendments tabled by any peer but only members of the committee may vote. This was only ever used for four bills that I can see, all in the mid-1990s.
A Leader’s Group, chaired by Lord Rippon of Hexham, was appointed to consider ways of improving the sitting hours of the House, and in 1994 they proposed committeees (later called ‘grand committees’ after a report in 1997) which would be identical to Committees of the Whole House except that no votes could be taken – amendments could only be accepted by unanimity. Of course, in the House of Lords most amendments at committee stage are accepted unanimously regardless, so this enabled time to be freed up in the House and allowed members to concentrate more on the important issues in Grand Committee. Because of the inherent limitations of grand committee, only non-controversial bills would be taken there; although the report recommended that all but the most controversial bills be taken there, take up is slow even today.
After 1997, joint committees of both Houses began to be set up to scrutinise bills in draft and to make recommendations. Somewhere between 10% and 20% of bills tend to be considered in draft in any given year.
With the Wakeham Commission in 1999 examining the potential shape of a new upper chamber, peers took it upon themselves to implement some of its recommendations and a new phase in the creation of Lords Select Committees began. They formed a Select Committee on the Constitution two years later which would report on the constitutional effects of bills before the House in time for second reading. Also in that year a Select Committee on Economic Affairs was instituted. In 2003, the Merits of Statutory Instruments Committee was set up which would sift through all Statutory Instruments to find ones which, on merit, were defective. They can look at the policy of them and make a report to the House which, in the House of Lords, is much more likely to be used in a vote against a statutory instrument. Three years later, the House set up a Select Committee on Communications after a long-running campaign by Lady Howe of Idlicote.
The one big loss of the last few years was the Appellate Committee of the House of Lords which was wound up in 2009 as the Judicial functions of the House of Lords were transferred across Parliament Square to the new Supreme Court.
Another Leader’s Group, this time chaired by Lord Goodlad, has proposed being launching two more cross-cutting policy select committees, a legislative standards committee (preferably joint) to advise the House about the quality of drafting in government bills, a post-legislative scrutiny committee to select four acts a year for review, a backbench business committee to allocate backbench debating time, ad-hoc “public bill committees” to take evidence and report on bill’s subject, and more joint pre-legislative scrutiny committees. A tall order, for sure, but negotiations are ongoing.