One of the key roles of the House of Lords is to scrutinise legislation that comes up to us from the Commons. In this context ‘scrutiny’ was a real and dynamic process because it was known, understood, expected and accepted that we had the power to amend legislation, send it back and ask the government to reconsider.

Indeed, it is widely known that the government could sometimes let a bill go to the Lords with wording that they already knew was defective, confident that the Lords could change it for the better. Sometimes whole sections of bills could come to us without having had much detailed examination at all in the Commons. Not a desirable situation and it is to be hoped that this will happen less often. However, it is not that we were therefore simply ‘scrutinising’ clauses that had been carefully considered in the Commons, we were very often the only parliamentarians looking at them and testing them at all in any kind of depth.

When we are involved in scrutinising legislation, it has become accepted as a (fairly recent) constitutional convention that this scrutiny function was possible only because no single party had a majority in the upper house, since the reforms of 1999 which removed the bulk of the hereditary peers. As the government could not be guaranteed to win in the Lords they knew their proposals would truly be examined. ‘Scrutiny’ therefore was something real precisely because it was coupled to an ability to insist on improvements or reconsideration by way of obtaining a majority vote in the chamber. Very often a defeat in the Lords meant, at the very least, that the government would think again, look again, and sometimes it would concede and the legislation would be changed and sometimes improved.

During the period 1997 – 2010 there are many examples of the then Conservative and Liberal Democrat oppositions combining to defeat the government in the Lords. Indeed, often just the threat of this happening might make those of us in charge of taking a bill through, think about the substance of the changes that were being suggested and whether they might have merit. Since any defeat would have to be reversed in the Commons, this would use up that most valuable thing – parliamentary time. The then opposition parties could sometimes truly claim to have both scrutinised and improved acts of parliament. This will not often, perhaps never, happen with the current balance of power in the House of Lords.

That situation no longer exists because now, with the coalition, when the whips are on, which they usually are and will be, the two government parties between them have an overall majority, over the Labour opposition. Today that majority stands at 37 – with a prospect of increasing it by the threatened creation of more coalition peers. In a real sense the House has ceased to be a chamber of scrutiny. It risks becoming a rubber stamp. Bad legislation may stay bad because the coalition government can always be sure of getting its way.

Some might say that the presence of the crossbenchers means that the government will be defeated from time to time, and that is true. But for the purposes of everyday scrutiny and discussion which ‘test’ a piece of legislation it is not sensible to include the crossbenchers in the potential opposition to the government because, by definition, they are not an organised political force or group. Individual crossbenchers are very expert legislators and scrutinisers but whether or to what extent crossbenchers engage with any particular issue in the chamber depends on a variety of often highly unpredictable factors. They can be very effective when the issue is important to some of them, as I know, as the most recent Lords health minister, to both my cost, (defeats on the free personal care bill) and my benefit (winning tobacco regulation).

It is the case that during the course of any piece of legislation in the last three parliaments the government would be defeated more regularly by the combination of the Conservative and Liberal Democrat opposition parties than by votes supported by or including the weight of the crossbench votes. Perhaps crossbench members need to consider their role in this matter and what greater contribution they might need to play to make the Lords again a chamber of proper scrutiny.

This is not sour grapes by a defeated opposition, it is a question raised by someone who has spent the majority of their time in the Lords on the backbenches (10 years) and who in that time has actively participated in scrutiny of large amounts of legislation, and who has worked with colleagues across the House to improve and question my own government’s legislation. I believed this is what I was put in the House of Lords to do, and that this process has real value to the development of public policy and legislation.

If this is no longer possible, it raises a very important constitutional issue. What is the point of the second chamber now? If it no longer has the power to ask the government to reconsider or look again at a piece of legislation, what job should the House of Lords be doing? Indeed will the proposed coalition government reforms make this better or worse?

Photo: UK Parliament 2008