Category Archives: UK Parliament

Tom Quinn: Mandates, Manifestos & Coalitions: UK Party Politics after 2010

One of the most important assumptions underlying this view of British politics since 1945 was that governments were given mandates by voters in elections. That followed from the fact that they were directly elected by voters, as there were no post-election coalition negotiations to intervene between voters’ choices and government formation. Mandates followed from voter endorsement of governing parties’ manifestos. The winning party was assumed to have a mandate to implement its manifesto in office.

The hung parliament of 2010 and the subsequent coalition government challenged these assumptions. If no party enjoyed a parliamentary majority, what sense did it make to speak of mandates? What was the role of manifestos if no party possessed a majority to implement one in full? What was the legitimacy of coalition agreements if they have never been put to the electorate? Ultimately, is it necessary to rethink the relationship between voters, parties and governments in the UK political system?

The Traditional Mandate Doctrine

The traditional ‘mandate doctrine’ of British government is, in essence, a very simple one. Two major parties, Labour and the Conservatives, compete with each other to form majority governments to implement their preferred policies. This two-party system was upheld by a first-past-the-post electoral system that made it hard for small parties to win seats. The first-past-the-post (FPTP) electoral system would help to turn electoral pluralities into parliamentary majorities. Elections were opportunities for voters to decide whether Labour or the Conservatives would form the government.

To facilitate this choice, the parties would offer manifestos before the election. These are detailed policy programmes setting out what each party would do in government. Voters could consult these manifestos and vote for the one they most preferred. The party that won a majority of seats in parliament would have a mandate to implement its manifesto. That is, it would have both the right and the obligation to do so. At the following election, voters could decide whether the governing party had been true to its promises: if it had, they might vote it back into power; if it had not, FPTP made it easy to ‘send the rascals packing’ by voting in the other party. Thus, Britain’s party system was based on the direct election of governments by voters, ensuring strong bonds of accountability. Manifestos were an important hinge, linking pre-election promises with democratically mandated post-election governance.

The clarity and simplicity of this theory is a large part of its appeal. In reality, it begs a number of questions. First, no party has won a majority of votes in a UK election in the post-1945 era. At best, the winning party secures a plurality of the vote. In 2005, Labour won the election on only 35% of the national vote, implying that almost two-thirds of voters refused to endorse Labour’s manifesto. Yet Labour still claimed a mandate because it had a parliamentary majority. In 2010, the Conservatives won 36% of the vote but had no parliamentary majority. Was their mandate weaker than Labour’s five years’ earlier? Secondly, manifesto pledges are offered to voters on a take-it-or-leave-it basis: in voting for a party’s manifesto, the party will assume voters have endorsed everything in it, even if it contains things they do not like. Thirdly, most voters do not choose parties on the basis of manifestos. Nowadays, they are much more likely to vote on the basis of party leaders and overall party competence.

The mandate doctrine has exerted a strong influence on thinking about British politics since 1945. The apparent demise of the old two-party system, with the hung parliament in 2010, has finally forced us to confront some of these problems.

Demise of the Two-Party System

From 1945 till the mid-1970s, Britain was an almost classic case of a two-party system, with Labour and the Conservatives winning 90% of the votes and almost all seats. Those days are long gone. Since then, we have seen the rise of the SDP-Liberal Alliance, and then the Liberal Democrats, who now hold 57 seats out 650 in the UK parliament. Nationalist and unionist parties win about 30 seats. We have reached a point at which somewhere between 60 and 80 Westminster seats are likely to continue being won by parties other than Labour and the Conservatives, making it harder for one party to win an outright majority. Hung parliaments will become more likely, though not guaranteed.

A shift to a multi-party system would require a rethinking of the process of government formation in Britain. If hung parliaments became more frequent, coalition or minority governments would become more likely. The notion of a manifesto-derived mandate becomes even more problematical than it already is when no party manages to win a parliamentary majority.

Minority governments are a frequent occurrence in Europe, though they are also common in another FPTP nation, Canada. Minority governments have weaker mandates than majority ones and do not have the parliamentary numbers to implement their entire manifestos. Unless they enjoy supply-and-confidence agreements with an opposition party, minority governments may find themselves at the mercy of those opposition parties waiting for the right moment to bring them down. Compromises may have to be sought if any legislation is to be passed.

The other alternative is a coalition government. Coalitions can occasionally be offered directly to voters before an election and receive voters’ direct endorsement, as with Britain’s ‘coupon election’ of 1918. More usually, coalitions are formed after electors cast their votes. For supporters of the two-party system, post-election deals by parties violate the principle of the direct election of the government by the people, as coalitions are chosen by political elites.

Coalition Agreements and Manifestos

When no party wins a parliamentary majority, then no single party has the means to implement its manifesto pledges. If a coalition is formed between two or more parties, the government’s policies will usually involve a combination of the participating parties’ preferred policies. The practice in Europe, followed in Britain in 2010, is for a coalition agreement to set out the government’s policies. Coalition agreements are negotiated policy deals between parties in government and they’re intended to reduce conflict within the coalition, as well as signalling to voters the direction of policy. They tend to work more smoothly as the ideological distance between the coalition parties narrows. If there are significant differences between the parties, devising a coalition agreement is more difficult and it may contain more gaps, as conflict is postponed by ‘agreements to disagree’ or the establishment of commissions of inquiry.

When government policy is based on a coalition agreement, parties’ individual manifestos become starting points for negotiations between the parties, with pledges tradable or liable to dilution. The UK coalition agreement of 2010 combined elements of both Conservative and Lib Dem manifestos. The Lib Dems identified their priorities as the four key themes of their manifesto – fair taxes, fairness in education, a green economy and political reform, with signature policies such as raising the threshold on income tax, introducing a pupil premium and electoral reform. The Conservatives focused more on their ‘red lines’ in the negotiations – immediate action to reduce the budget deficit, toughness on defence and immigration, and no further transfers of sovereignty to the EU without a referendum. In the end, both parties secured gains on key policy areas, with clear ‘wins’ for each party on particular policies. The Conservatives won out on their red lines; the Lib Dems made progress on their four priorities.

Coalition agreements are programmes for government and so they must be internally coherent, particularly on plans for taxation and spending. That may mean the negotiating parties go beyond specific policies in their manifestos. A manifesto’s tax-and-spend policies may all fit together, but if only some of those pledges make it into the coalition agreement, while others do not, there is no guarantee that they will continue to add up. There would have to be compromise and that might involve watering-down manifesto pledges or even creating wholly new pledges. For example, all spending plans in the coalition agreement were subject to the proviso that deficit-reduction was the government’s fiscal priority.

The pledge to hold a referendum on the Alternative Vote (AV) electoral system provoked some debate because neither the Lib Dems nor the Conservatives had mentioned AV in their manifestos (though, ironically, Labour had!). However, it seemed a reasonable half-way-house between a referendum on proportional representation (the Lib Dem position) and the maintenance of the status quo (the Tory position). This pledge was vital in securing the formation of the coalition.

Perhaps the most contentious feature of the coalition agreement was the section on university tuition fees. The Lib Dems’ manifesto pledged the party to ‘scrap’ tuition fees but the reality of deficit-reduction made that extremely difficult. The coalition agreement declared that the government would await the Browne Report on university funding and that Lib Dem MPs would have the right to abstain – but not vote against – any rise in fees. After receiving the Browne Report, the government brought a bill before parliament to treble the ceiling on fees to £9,000 p.a. Most Lib Dem MPs voted in favour of the increase. Vince Cable, the Lib Dem secretary of state responsible for universities, later denied that this volte face involved a broken mandate:

We didn’t break a promise. We made a commitment in our manifesto, we didn’t win the election. We then entered into a coalition agreement, and it’s the coalition agreement that is binding upon us and which I’m trying to honour.

For supporters of the two-party system, this episode encapsulated the illegitimacy of coalition government: a minister producing a bill that directly contradicted his manifesto, but which he justified as the price of coalition government.

There is no doubt that this controversy badly damaged the Liberal Democrats’ credibility. But we should be careful before seeing it as an inevitable feature of coalition government. There were many other pledges on which compromises were struck that were not nearly as contentious. On this one, the Lib Dems’ original policy was not merely watered-down; it was directly opposed to the one they implemented in government. The pledge to scrap tuition fees was one of the key identity-defining policies of the post-Ashdown Liberal Democrat party. Along with opposition to the Iraq War, it helped define the party’s ideological identity as left-leaning. Reneging on it would inevitably damage the Lib Dems. But it’s hardly characteristic of most policies in the agreement.

Single-party majority governments are just as capable as coalitions of breaking their manifesto pledges. Tony Blair’s Labour government did not hold a referendum on electoral reform despite promising to do so in its 1997 manifesto. New Labour also announced operational independence for the Bank of England to set interest rates just five days after coming to power in 1997. This policy had not been mentioned in Labour’s manifesto on which the party had just fought and won an election, but a chorus of approval from the financial markets ensured that it came to be seen as a masterstroke.

Conclusion

If we accept the assumptions of majoritarian democracy, then the advent of coalition government is an unwelcome development. It blurs lines of accountability between voters and governments, and hands too much power to party elites, especially those in small parties. Government policy becomes based on coalition agreements that have not been directly endorsed by the voters and that undermines their legitimacy. Small parties may find themselves still in government playing a king-maker role even as they lose popularity.

In reality, there were already serious flaws in the traditional mandate doctrine. The concept of an electoral mandate becomes more ambiguous the closer one looks at it. It relies on some heroic assumptions about manifestos and voters, assumptions that are never satisfied in the real world. A party winning 36% fails to secure a mandate in one election, but in the previous election, another party won 35% and its parliamentary majority, created by FPTP, endows its manifesto with the mystical qualities of a mandate. The hung parliament of 2010 shone a light on the weaknesses of the mandate doctrine of British democracy, weaknesses that had previously been concealed by a procession of majority governments. Asking whether coalition agreements enjoy electoral mandates, therefore, is not really the right question. Of course, they don’t; but in all likelihood, neither do manifestos, at least, not en bloc, as a set of pledges. The real questions are: do they represent a logical compromise between the rival positions of the coalition parties; and, do they remain true to the spirit, if not always to the detail, of those parties’ manifestos? If coalition government is deemed necessary, a formal coalition agreement at least offers voters an outline of future government policy. The experience of 2010 is that most coalition pledges will have some origin in one or other party’s manifesto.

In this process, trust is a key ingredient. In the mandate doctrine, voters must trust governing parties to implement their manifesto pledges, but if they don’t, voters must wait till the next election to punish them. The same is true of coalitions. Some pledges may have to be traded, but if parties are seen to renege on major pre-election pledges, they can be punished at the ballot box.

We have probably entered an era in which majority governments, minority governments and coalitions are all genuinely possible. But it does appear that the old two-party system has largely gone and that in turn requires parties, voters and political observers to think beyond the old mandate doctrine about how we might conceive of the democratic legitimacy of government in a new era of the British politics.

 

Dr. Tom Quinn is a Senior Lecturer at Essex University.

(Suggested citation: T. Quinn, ‘Mandates, Manifestos & Coalitions: UK Party Politics after 2010’ U.K. Const. L. Blog (18th July 2014) (available at http://ukconstitutionallaw.org/).

 

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James Hand: Lords response to Labour Peers’ Working Group Report – A Programme for Progress: The future of the House of Lords and its place in wider constitution.

James-Hand-140-x-150The House of Lords have recently debated the Labour Peers’ Working Group report looking at the future of the House of Lords and its place in a wider constitution. The report was published on 28th May 2014 and was generally well received by contributors from all sides during the 4 hour motion to take note. Lord Dubs, one of the authors, has set out the key conclusions of the working group here but in summary they seek to achieve in the interim a smaller House of Lords, limited to 450 members, ahead of a constitutional convention to decide on the future of the House of Lords and, potentially, other constitutional issues. The report also dealt with other matters such as recommending the final abolition of the remaining hereditary peers’ right to sit (in contradiction to the compromise in 1999 ‘binding in honour’ on those who assented that they should remain until the second and final stage of reform had taken place), ceasing to wear robes during introduction and some procedural reforms. This post, however, shall focus on two significant issues arising from the debate: the prospects for a convention and the division over the means for the reduction in the size of the House.

A constitutional convention

There has been much talk of a constitutional convention in Scotland should the Yes campaign win September’s referendum there (see e.g. Aileen McHarg’s and Katie Boyle’s blog posts) but regardless of the outcome of that referendum the constitutional position of the whole UK, and the House of Lords within it, is open to question following years of piecemeal constitutional reform. With one or two notable exceptions, there was general support among the speakers for the proposal that there should be a convention.

While the report limited the scope of the proposed convention to considering ‘the next steps on further reform of the House of Lords and any consequential impact on the House of Commons and on Parliament as a whole’ (para 3.14), some speakers took a wider approach. Lord Gordon of Strathblane, for example, endorsed the idea but held that the way European legislation was dealt with and the operation of the House of Commons would be higher up the list for consideration by such a body and Lord Norton of Louth, who had previously argued for one before with a different scope, considered that we need one ‘to help us make sense of where we are, and not necessarily to tell us where we should be going—Parliament can decide that once we have a much clearer appreciation of where we are in terms of the structures and relationships that form our constitution’ (at col 952). Only two peers from some 40 peers who spoke, expressed opposition: Lord Stephen questioned whether any convention could come up with any new answers about the Lords and Lord Howarth of Newport thought that the political parties should distance themselves but that the process ‘might valuably be undertaken by academics and think tanks, which could elucidate the issues and offer useful ideas.’ He further stated that a ‘royal commission, or a commission or convention, will get things wrong… [w]hat they recommend will be found not to work’ before going on to note to the shortcomings of the US Constitution and the 1990s Scottish Constitutional Convention (at col 959).

Significantly, both front benches spoke positively of a wider convention. Lord Hunt of King’s Heath, for the Opposition, noted that not ‘all noble Lords are in favour of such a proposal, but we cannot consider Lords reform in isolation from the many other pressing issues that we face in relation to the constitution, not least, as [Lord Maxton] said, in today’s era of new technologies, and also, as the noble Lord, Lord Phillips, said, in view of young people’s disengagement from politics’ (cols. 983-984). For the Government, Lord Wallace of Saltaire went further:

The case for a commission or convention is out there. There was an excellent report by the House of Commons Political and Constitutional Reform Committee last year which suggested that the Government have no view on this issue at present. However, personally and as a Minister, this is a question that we ought to be debating in the last year of this Parliament. I welcome what the noble Lord, Lord Foulkes, and others are doing. It is one that we all need to consider because we need to look at how all of this runs together. (col. 987)

That is not say that a convention will be immediately forthcoming as time is too short to define what is sought before the election, but that the topic of a convention is, to quote Lord Wallace, ‘precisely the sort of thing’ that could usefully be considered in the last year of a fixed-term parliament which could then be taken forward by the next government. A constitutional convention for the UK (or rest of the UK) can thus be seen to be more likely than it has been in the past.

Reducing the size of the House

There was broad agreement that the House of Lords needed to be smaller and, with one exception, that it should be smaller than the House of Commons. The Act passed in the last session (colloquially termed the Norton-Steel-Byles Act) sought to reduce membership through expulsion due to criminal offence, voluntary resignation and removing those who failed to attend any sitting during a session (the first of which is in force now and the latter two due to come into force this summer). The report proposed a more drastic threshold of 60% of sittings in a session (which they curiously refer to as an average (at para 8.11)), unless there are exceptional circumstances, and a compulsory retirement for all those who reached the age of 80 in the preceding session (at paras 8.5-8.6).

To have an arbitrary age limit cut-off is inherently discriminatory – in another context it has been described as ‘the statutory age of senility’ – and the justification is slight. Its proponents describe it as the least worst alternative. However, there was support by a number of peers for an evolution of the process that saw the hereditary peers whittled down (attributed to Billy Bragg by the Joint Committee on the Draft House of Lords Reform Bill and as, for example, written about here). Each Parliament, the parties could determine how many peers each should have (possibly based on the general or other election results, either by each election or through using a rolling average) and then elect or select within themselves which peers should remain. Lord Norton of Louth when preferring such a scheme to an arbitrary age limit noted that it ‘would enable the issue of overall size, as well as party balance, to be addressed effectively’ (col. 952). Lord Haskell appeared to prefer a one-off repeat of the Weatherill hereditary peer reduction followed by a formula allowing new peers to be allocated between the parties and the cross-benches (col 980). The proposal fared less well on the front benches. Lord Hunt of Kings Heath drew an unflattering comparison with the hereditary by-elections (where there are sometimes more candidates than remaining peers to act as electors, particularly with regard to the Labour hereditaries) and considered that the cut-off at the age of 80 was the least worst option (col. 983). Lord Wallace of Saltaire pictured ‘a wonderful series of bloodlettings within each of the two groups’ (seemingly forgetting about the Liberal Democrats and others) but, when challenged by the Earl of Sandwich, acknowledged that it was ‘one way of addressing the question of topping up after the election’ (cols 988-989).

In seeking to dismiss the concept of a modified-Weatherill approach to the question of the numbers of sitting life peers (either as a one-off or occurring each Parliament), the frontbench spokesmen appear to have overlooked a number of issues. Lord Hunt was concerned that a system that sought to replicate the general election results would be a strange basis for a distinct House. However, he fails to take account of a sizeable presence of cross-benchers (fixed in one version of the proposal at 20%) which would automatically render the make-up of the House different from the Commons. Furthermore, a system of rolling averages – to avoid temporary blips in electoral support being reflected in the less democratic, less powerful, more reflective House – could be used if a longer term view was sought or, to reflect the differences in different elections, a formula comprising local and European results instead or as well could be adopted. While such a system to reduce the peers – and in the Norton, if not Haskell formulation, keep the number in regular (and reasonably proportional) check – is derived from the Weatherill reduction of peers, to disparage it based on the hereditary peer by-elections is to ignore the differences in size of much of the electorate (there are, for example, over 200 Labour life peers (and nearly 100 Lib Dems) but they have only four sitting hereditary peers each). What would take place would not be a ‘blood-letting’ in Lord Wallace’s words but a pruning (or re-potting if former peers returned following a change in the political wind) which could take account of the age and past attendance but would do so in the round and not as an arbitrary cut-off. Such a system would allow peers to emulate the now late Lord Wilberforce, who regularly attended over 100 times a year, even when in his mid 90s, if they had valuable contributions to make while allowing others to retire if they so wished or to take a sabbatical and return if there was sufficient support amongst their colleagues. Only if there had been a large number of appointments during a session (which could be prevented by a statutory appointments commission) or there had been a radical change in support would there ever likely be a sizeable change in membership (which would be further reduced by both the option of retirement and the inevitability of death).

There seems to be near universal agreement that the House of Lords’ size needs to be constrained, not least as the risk now looms large of a ballooning house if new appointments are made to reflect changing strength in the Commons looms (as predicted by Robert Hazell & Ben Seyd and Meg Russell) even if there is not unanimity about the actual size. It would, on the precedent of the Weatherill amendment, only take a small change to legislation to bring about a system of indirect election as mooted by Lord Norton of Louth which would retain much of the existing strengths (and membership) of the House and which could act to prevent chamber-hopping (see e.g. Meg Russell’s piece from March) and allow more time for a wider-ranging constitutional convention to take place.

 

James Hand is an Associate Senior Lecturer at the University of Portsmouth

(Suggested citation: J. Hand, ‘Lords response to Labour Peers’ Working Group Report – A Programme for Progress: The future of the House of Lords and its place in wider constitution’ U.K. Const. L. Blog (29th June 2014) (available at http://ukconstitutionallaw.org/)).

 

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Edward Kirton-Darling: Missing: political genius. If found, please return to the British People, care of Palace of Westminster, SW1A.

Edward2If Scottish voters chose independence in the referendum in September, the SNP confirmed on 16 June that a written constitution for Scotland would be drawn up. Where does that leave the rest of the UK? In an endeavour to consider what Scottish independence would mean for the rUK, this post considers Lord Bingham’s accounts of the proper relationship between the Rule of Law and Parliamentary Sovereignty, and, drawing on his concern about an imbalance within Parliament, argues that if Scottish were to secede, this would further unbalance the rUK’s constitutional order.

Lord Bingham, the Rule of Law and Parliamentary Sovereignty

In 2007, Lord Bingham set out his perspective on the relationship between the rule of law and parliamentary sovereignty in a Commemoration Oration at Kings. Much of the speech was subsequently reproduced in 2010 in Chapter 12 of his book, but for one significant amendment, which I will come to below. Bingham argued that fundamental rights must be incorporated into any proper account of the rule of law, and having set out the rights contained in the ECHR, which are “as good a check list as any,” he paused to wonder that “It is hard to understand how this very basic and practice catalogue of rights has come to be portrayed to the public as some ill-conceived, European-inspired, affront to the commonsensical conduct of government.” For Bingham, rights are not enough; at the heart of the rule of law is democracy, and the ability of a citizen to have a say in the laws by which they are bound.

Lord Bingham then turned to parliamentary sovereignty and dismissed arguments suggesting there were legal limits on Parliament’s ability to constitutionally legislate howsoever it wished. Where legislation which interfered with fundamental rights was clear and unambiguous, the courts have no power to annul or modify such enactments. Where courts do have such power, it exists by operation of Acts of Parliament, and if Parliament told them to do so, courts would stop interfering. He reserved particular ire for arguments based on common law fundamental rights – whether founded in obiter remarks by Sir Edward Coke in 1610 or Lord Steyn in 2005 – concluding that “The British people have not repelled the extraneous power of the papacy in spiritual matters and the pretensions of royal power in temporal in order to subject themselves to the unchallengeable rulings of unelected judges.”

However, this stirring paean to a sovereign British Parliament left Lord Bingham with the problem of the protection of fundamental rights. He was not persuaded by the argument that in practice, Parliament will not interfere with fundamental rights, indeed it was not hard for him to envisage such interference. Instead, checks and balances within the concept of Parliamentary Sovereignty hold the key, and traditionally, the rule of law was protected by the existence of 3 powerful independent players in the Crown, the Lords and the Commons. In this context, the contemporary “vice at the heart of our constitutional system” is the overweening unrestricted power of whoever is in a majority in the House of Commons. Such a party can effectively act as it wishes, including passing legislation which interferes with the rule of law, and Lord Bingham argues that this serious problem, once squarely confronted, can surely be resolved by “the political genius of the British people.”

Crucially, the speech at Kings does not prescribe or even suggest what such a solution might look like. The tenor of the lecture, grounded in respect and admiration of the UK’s constitutional traditions, points towards a political solution to the tension between Parliament and the rule of law; maintaining a Parliament capable of legislating in any way it wished, but fixing the malaise by resolving the imbalance in the constituent parts of the sovereign Parliament; shackling the House of Commons, rather than the sovereign Parliament.

By 2010, this argument had changed (as I discuss below), but in relation to Scottish independence, there are two aspects of Bingham’s analysis which are important: (1) whether the Union with Scotland limited Parliament’s law making powers, and 2) how Scottish independence might affect the already unbalanced constitution.

Act of Union with Scotland & Devolution

In relation to devolution, Lord Bingham entirely dismissed any argument that Parliament had lost the power to legislate for Scotland (or Wales or NI). He maintained that as with the HRA and the EU, Parliament had curtailed its own power by express authority, and could revoke that power, at least in theory. However, the only chink which Bingham partially conceded in the armour of an all-powerful sovereign Parliament related to the question of Scotland. Bingham said:

It has been suggested, with some judicial support, that the principle of parliamentary sovereignty did not obtain in Scotland before 1707 and that the Union with Scotland Act 1706 cannot itself be amended or abrogated since it gave effect to the Treaty of Union in which certain provisions were agreed to be and were described in the Act as unalterable. The merits of this argument are far from clear. It is hard to see how the pre-1707 Scottish Parliament could have done anything more fundamental than abolish itself, and it is hard to accept that the Westminster Parliament could not modify the Act of Union if there were a clear majority in favour of doing so. But if, which I doubt, there is an exception here to the principle of parliamentary sovereignty, it is a very limited exception born of the peculiar circumstances pertaining to the union with Scotland and throws no doubt on the general applicability of the principle.

If Scotland votes yes to independence, we will shortly find out if Lord Bingham is correct, and political reality suggests his doubts are valid. The recent House of Lords Constitution Committee report on constitutional implications of the referendum concludes that a, relatively short, Act of Parliament would be capable of recognising independence for Scotland and the end of the UK’s legislative competence over Scotland. Clearly, If Scotland votes yes, and the UK Parliament passes legislation amending the Acts of Union, whether or not it existed before, this one possible exception cannot survive. However, this argument for a limited UK Parliament has been primarily limited to Scottish jurists and academics, as Baroness Hale acknowledged in Jackson v. AG [2005] UKHL 56, at para 159, stating “The concept of Parliamentary sovereignty which has been fundamental to the constitution of England and Wales since the 17th century (I appreciate that Scotland may have taken a different view) means that Parliament can do anything.” A resolution of the Scottish question will consequently have limited impact on arguments about sovereignty in the rUK.

Similarly, arguments over devolution’s role in undermining the classic theory of a sovereign Parliament (dismissed by Lord Bingham, and argued by Gavin Little in Scotland and Parliamentary Sovereignty (2004) 24(4) Legal Studies 540) will become outdated if Scotland votes yes to independence. For critics of Bingham’s approach, it may make little difference, as other putative substantive limits on Parliament remain and judges will continue to engage in constitutional analysis (see for example, M. Elliott U.K. Const. L. Blog (23rd January 2014) and Vernon Bogdanor Imprisoned by a Doctrine 32(1) OJLS 179). Thus Scottish independence will not definitively settle the question of legal limits to Parliament’s power either way, but as I argue below, it will have an impact on Parliament itself.

An Unbalanced Constitution

Lord Bingham’s 2007 resolution of the tension between a sovereign Parliament and fundamental rights under the rule of law was to turn to a critique of Parliament. In his account, there are no permissible legally enforceable limits to Parliament’s power, but the existence of checks and balances within a sovereign democratic Parliament would prevent express interference with rights. As such he proposes a Madison-style approach to avoiding majoritarianism, emphasising productive tensions within the legislative branch of government.

Alison Young’s post on this blog on 17th February 2014 argued that debate over whether judges or Parliament are supreme misses the point. Instead constitutional pluralism is evidenced by courts and Parliament checking each other’s excesses, with both asserting sovereignty in different circumstances, and neither able to finally demonstrate supremacy. The argument suggests that constitutional strength comes from the tension between institutions and their ability to exert restraint on each other.

Combining these two accounts suggests that intra-institutional checks and balances are important, and constitutional plurality is protected by tensions, both between constitutional institutions and within those institutions. Taking Bingham’s argument one step further, and focussing on Parliament in particular, productive tensions within the House of Commons, ensuring effective scrutiny of legislation and restricting a Government by requiring it to take different perspectives into account, is part of what ensures legitimacy and authority – and protects rights – in the UK’s constitutional order.

Concern about an imbalance within Parliament is not a recent development – Lord Bingham quotes a Victorian Lord Chief Justice with approval:

The constitution has lodged the sacred deposit of sovereign authority in a chest locked by three different keys, confided to the custody of three different trustees … One of them is now at length, after ages of struggle, effectually prevented from acting alone; but another of the two is said to enjoy the privilege of striking off the other two locks, when, for any purpose of its own, it wishes to lay hands on the treasure.

What difference will the independence of Scotland make to this debate? It is instructive to compare mid-Victorian Britain to a future rUK to consider this question. The criticism of an over-powerful House of Commons was made in a context in which the Monarch had been prevented from acting alone, but the House of Lords retained the power to veto, and in which party discipline (and consequent executive power over both Houses) was much weaker. Powerful local government, championed by J. Toulmin Smith and exemplified by the activities of Joseph Chamberlain in Birmingham, provided a political counterweight to Westminster, and economic power was split between London, established regional centres like Manchester and Glasgow, and newly developing industrial hubs like Middlesbrough, Gladstone’s “infant Hercules.”

Many of these political and economic balances are either gone or are dramatically denuded; with London, the House of Commons and the government within Parliament now far more dominant. Other restricting factors have emerged. The devolved institutions are one example, and while other limiting factors could be identified – some might point to the impact of social media and more transparent government, while stronger English regional voices may be emerging, see for example the launch of the North East Party on 26 May this year, – it is clear that the secession of Scotland would have an impact on the political checks and balances within the Commons itself.

Firstly, this is because the removal of Scottish MPs will result in a concurrent increase in the proportion of MPs voting with the government as part of the ‘payroll’ vote. Around 140 members (95 paid, and an estimated 45 unpaid Parliamentary Private Secretaries) are obliged by convention to vote with the government. The 95 members figure is fixed as an absolute number in primary legislation (while the number of PPS’ is not included and fluctuates). The result following Scottish independence – if no amendment is made to the payroll vote – will be that almost a quarter of the House of Commons will not generally be permitted to exercise an independent judgment on legislative matters. Such an increase may not have a dramatic impact on the Commons by itself (the current figure is approximately 22%), but is part of a long term trend of an increase in the ‘payroll’ vote which has already been subjected to fierce criticism (see the Public Administration Select Committee report “Too Many Ministers?” 9th Report, Session 2009-10).

Furthermore, as Keating has argued, Scottish MPs have traditionally operated on a regionally distinctive basis (See Michael J. Keating Parliamentary Behaviour as a Test of Scottish Integration into the United Kingdom, Legislative Studies Quarterly, Vol. 3, No. 3 (Aug., 1978), pp. 409-430). He showed (albeit pre-devolution) that the involvement of the majority of Scottish MPs in UK-wide politics was primarily aimed at seeking Scottish advantages. It could be argued therefore that removal of Scottish MPs would have little impact on a rUK, however, Keating shows disproportionately strong involvement by Scottish MPs on UK-wide Bills on economic affairs, in particular agricultural and fisheries (now devolved) and trade and industry (which is not devolved). Keating also argues that UK-wide legislation has been affected by Scottish members acting in a regionally distinctive way, illustrating this with the example of a failed attempt to legalise homosexuality across the UK in 1965 (subsequently applied to England and Wales only). Thus a Scottish MP arguing for the (perceived) best interests of Scotland affects the rUK, either through pushing UK-wide policies which are (perceived to be) best for Scotland, or through raising an argument for Scottish exceptionalism, with resulting negotiation, debate and scrutiny of proposed policies.

In a more recent paper, Keating and Cairney have shown that in a political culture moving towards a political class dominated by university educated middle class professionals, Scottish MPs were traditionally more diverse, “conforming more closely to the class stereotypes” (See Michael J. Keating and Paul Cairney, A New Elite? Politicians and Civil Servants in Scotland after Devolution Parliamentary Affairs (January 2006) 59 (1): 43-59). Although the upper class/public school/military representatives have subsequently disappeared from Scottish politics, Scottish MPs remain more likely to be from working class backgrounds than their English and Welsh counterparts.

Thus regionally distinctive behaviour by Scottish MPs has had implications for legislation affecting the whole of the UK, and the removal of Scottish members will have an homogenising effect on the Commons post-independence, as well as removing one political party in the shape of the SNP entirely. Furthermore, the removal of Scottish devolution would also remove an inter-UK test of subsidiary; a hurdle which demanded attention when any policy was considered or legislation introduced.

Conclusion

Potential Scottish independence can be put into a context in which the UK might conceivably leave the EU and repeal the HRA. Many of the arguments for these steps appeal to a sense in which Parliament has lost its democratic sovereign right to govern. Their appeal is to a Diceyean Britain in which Parliament is supreme. However, in Dicey’s late-Victorian Britain, significant checks on majority rule remained; formally in the shape of a still powerful Lords and far more interventionist Monarch; politically in a UK with far more powerful economic and political regional traditions; and theoretically, with powerful arguments opposing an unlimited Parliament built on the Acts of Union.

Checks and balances remain part of the UK’s constitutional order, but a result of Scottish membership of the UK will be a reduction in the potential restrictions on a majority party in the House of Commons. If intra-institutional plurality is a source of legitimacy and authority, this reduction in plurality in the Commons undermines Parliament itself. Did Lord Bingham predict this? His later (2010) formulation of the way to resolve the tension between Parliament’s sovereignty and the rule of law was to tentatively propose a written constitution. Perhaps he had given up on the political genius of the British people in the interim, or perhaps he had higher hopes of us than we have recently been able to evidence.

 

Edward Kirton-Darling is a doctoral candidate in socio-legal studies at the University of Kent.

(Suggested citation: E. Kirton-Darling, ‘Missing: political genius. If found, please return to the British People, care of Palace of Westminster SW1A’  U.K. Const. L. Blog (26th June 2014) (available at http://ukconstitutionallaw.org/)).

 

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Philippa Webb and Kirsten Roberts: How can parliamentary oversight of human rights be made more effective? Report to be launched in Geneva this week.

KRWebb_photoThere is intense interest in the UK in the role of the judiciary in protecting and promoting human rights, but Parliaments can also play a vital role. The UK Joint Committee on Human Rights, which has featured on this blog, is widely admired as a mechanism for the oversight of human rights. However, it is not the only possible oversight mechanism, and it, too, could be improved.

This week at the United Nations in Geneva, the results of an 18-month project spanning 9 jurisdictions on Effective Parliamentary Oversight of Human Rights will be launched. We will be putting forward proposals aimed at encouraging parliaments to become more effective in their human rights work.

An advance copy of the Outcome Document can be downloaded here.

In democracies, parliaments are crucial in balancing the use of power by the executive and overseeing the functioning of the State. In many countries this balance is off – with the executive and civil service seemingly unwilling to cede any real control to oversight or accountability mechanisms. Yet as a crucial component of the state architecture, parliaments share a responsibility to protect, respect and fulfill the State’s international human rights obligations. As elected representatives, parliamentarians have the responsibility to provide for the best interests of their constituents. However, in addition to this duty, parliaments are also ideally positioned to be leaders in ensuring that the State is not perpetrating human rights violations, that domestic law is not incompatible with human rights standards and in ensuring that human rights protections are in place.

The international organization for parliaments, the Inter-Parliamentary Union, with whom we will co-host the event in Geneva, has identified 7 common tools for parliamentary oversight: Committee hearings,
Hearings in plenary sittings, Inquiry commissions,
Questions,
Question time,
Interpellations, and
the Ombudsman. These mechanisms are clearly lacking in many systems.A dedicated human rights mechanism– whether it is a committee, sub-committee or rapporteur, is required for all Parliaments. This mechanism, whatever its form, should have a clear goal. In our Outcome Document, we propose what such a goal might look like:

To help ensure increased compliance with human rights and a better life for all the people in this country through publicly examining existing or potential human rights deficits identified by parliamentarians, international organisations, the National Human Rights Institution, Civil Society Organisations, the media, the public, victims, whistleblowers and others; making proposals on areas for change or improvement; and calling the government to account for failures to protect the rights of the people of this country.

A clear goal for a parliamentary human rights mechanism would help to provide focus, purpose and clarity to its work. In addition to any mechanism, parliamentarians also have individual responsibilities. Parliamentarians should ensure they are educated on human rights standards, and aware of human rights issues. For both the mechanism and individual parliamentarians, there must be engagement with independent oversight bodies in the state as well as with Civil Society Organisations and victims’ groups. Parliamentarians should take personal responsibility for the promotion of specific human rights issues, particularly those relevant to their constituents. We hope that the proposals we put forward in Geneva this week can contribute to promoting much needed change in this area in Parliaments around the world.

 

Philippa Webb and Kirsten Roberts are co-investigators of a research project on Effective Parliamentary Oversight of Human Rights, funded by the King’s Policy Institute: http://www.kcl.ac.uk/law/research/parliamentshr/index.aspx

 

(Suggested citation: P.Webb and K. Roberts, ‘How can parliamentary oversight of human rights be made more effective? Report to be launched in Geneva this week.’  U.K. Const. L. Blog (24th June 2014) (available at http://ukconstitutionallaw.org/)).

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Alexander Horne and Oonagh Gay: Ending the Hamilton Affair?

AlexanderOonaghArticle 9 of the Bill of Rights 1689 has been the subject of a variety of legal challenges. The Article, which provides (in modern parlance) that: “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament” is usually considered to be a fundamental feature of the constitution and a cornerstone of parliamentary privilege.

The legal immunity granted by Article 9 is wide and it is also absolute: it is not excluded by the presence of malice or fraudulent purpose. Article 9 protects the Member who knows what he is saying is untrue as much as the Member of Parliament who acts honestly and responsibly. Nor is the protection confined to Members. Article 9 applies to officers of Parliament and non-Members who participate in proceedings in Parliament, such as witnesses giving evidence to a committee of one of the Houses. In the case of A v United Kingdom (2003) 36 EHHR 51 the European Court of Human Rights held that the absolute freedom of speech in Parliament was proportionate, and did not violate the European Convention on Human Rights (although the Court also asserted its jurisdiction over national parliaments’ privileges).

In 1995 an interesting issue arose relating to a case in which a Member sued a non-Member for defamation. In his defence the non-Member asserted that he was justified in saying what he did, and sought to rely on statements made by the Member in parliamentary proceedings.

The case was a libel action brought by Neil Hamilton, then an MP, and a political lobbyist, Ian Greer, against The Guardian newspaper over allegations that Hamilton had “made corrupt use of his right to ask questions of ministers and had received money via Mr Greer’s company (`cash for questions’)”. In its defence, the newspaper submitted that for a full defence it would need to use parliamentary proceedings as evidence relating to Mr Hamilton’s conduct and motives in tabling parliamentary questions and early day motions. The judge found that this was contrary to Article 9 and stopped the proceedings on the ground that it would not be fair to allow the claimant to sue for libel if the defendant newspaper was not permitted to justify what it had written. In other words, just like every other citizen a Member was bound by the prohibition on impeaching or questioning proceedings in Parliament, even if it might be in the MP’s own interest for the court to let the parties in the case do so.

Section 13 of the Defamation Act 1996 was intended to remedy the injustice perceived to exist in this type of case. It enabled a person, who may be a Member of either House or of neither House, to waive parliamentary privilege so far as he or she is concerned, for the purposes of defamation proceedings. The essential protection of Members against legal liability for what they have said or done in Parliament remained and could not be waived. The section was inserted into the Defamation Bill [HL] through a Lords Amendment, drafted by parliamentary counsel, but moved by Lord Hoffmann, a Law Lord, at Third Reading. Although the amendment was subsequently the subject of debate in the Commons, the clause survived.

Geoffrey Lock’s chapter on the Hamilton affair in Conduct Unbecoming (eds Oonagh Gay and Patricia Leopold Politico’s 2004) tells the full story of Hamilton’s subsequent legal actions. He and Greer planned to re-activate their defamation action against the Guardian, but the discovery process led Greer’s lawyers to advise against his continuing the case, and Hamilton also had to withdraw as a result.

Section 13 enabled Hamilton to take a separate action against Mohammed Al Fayed, who had made allegations about cash payments to Hamilton. The effect of a waiver under s 13 of the 1996 Act was eventually considered by the House of Lords in Hamilton v Fayed [2001] 1 AC 395. Lord Browne-Wilkinson gave the only speech (in what was a unanimous decision by the court). In respect of s 13, he concluded, inter alia:

Before the passing of the Act of 1996, it was generally considered that parliamentary privilege could not be waived either by the Member whose parliamentary conduct was in issue or by the House itself. All parliamentary privilege exists for the better discharge of the function of Parliament as a whole and belongs to Parliament as a whole. Under section 13, the individual Member bringing defamation proceedings is given power to waive for the purposes of those proceedings “the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament.” The section then provides by subsection (2) that such waiver operates so that evidence, cross-examination or submissions made relative to the particular M.P. are not to be excluded by reason of parliamentary privilege. The M.P. thus having been given statutory power to waive the protection afforded by the privilege so far as he is concerned, the section goes on to provide that the admission of such evidence, questioning etc., should not be treated as infringing the privilege of either House of Parliament: see subsection (2(b).

The effect of the section seems to me to be entirely clear. It deals specifically with the circumstances raised by Mr. Hamilton’s case against The Guardian. He could waive his own protection from parliamentary privilege and in consequence any privilege of Parliament as a whole would fall to be regarded as not infringed. At least in part, section 13 was passed by Parliament to enable specifically Mr. Hamilton to proceed with The Guardian action. The issues in this present action against Mr. Al Fayed are for the most part identical. It would, indeed, be very strange if the section had failed to enable Mr. Hamilton to bring this action.

Section 13 proved controversial. It was considered by the Joint Committee on Parliamentary Privilege in 1999 (HL 43-I / HC 214-I). That Committee concluded that:

68 … [T]he cure that section 13 seeks to achieve has severe problems of its own and has attracted widespread criticism, not least from our witnesses …. A fundamental flaw is that it undermines the basis of privilege: freedom of speech is the privilege of the House as a whole and not of the individual member in his own right, although an individual member can assert and rely on it. Application of the new provision could also be impracticable in complicated cases; for example, where two members, or a member and a non-member, are closely involved in the same action and one waives privilege and the other does not. Section 13 is also anomalous: it is available only in defamation proceedings. No similar waiver is available for any criminal action, or any other form of civil action.

69. The Joint Committee considers these criticisms are unanswerable. The enactment of section 13, seeking to remedy a perceived injustice, has created indefensible anomalies of its own which should not be allowed to continue. The Joint Committee recommends that section 13 should be repealed.

The Committee acknowledged that repeal would leave the potential problem that the provision had been intended to address unresolved and examined alternative remedies. It recommended the replacement of section 13 with a short statutory provision empowering each House to waive Article 9 for the purpose of any court proceedings, whether relating to defamation or to any other matter, where the words spoken or the acts done in proceedings in Parliament would not expose the speaker of the words or the doer of the acts to any legal liability.

In spite of the criticisms raised by the Committee, no steps were taken to repeal section 13 following its report and there are no other reported uses of the waiver. A further opportunity for repeal came in the 2010-12 Parliamentary Session, with the consideration of a draft Defamation Bill, but no action was taken, as a more wide-sweeping review of parliamentary privilege was under way in the wake of the 2009 expenses scandal. This review resulted, not in the draft Bill foreshadowed in the 2010 Queen’s speech, but in a Green Paper on Privilege (Cm 8318: 2012). The Green Paper posed the question as to whether “anything, needs to be done in relation to section 13 of the Defamation Act 1996.” It stated that it “could be repealed without replacement, amended, or left as it is, given that the existing power of waiver has never been used.”

The Government’s proposals were considered by a new Joint Committee on Parliamentary Privilege, which reported in June 2013. It recorded that it had received evidence from the Government to the effect that as it was not aware of any instances in which anyone has used the power of waiver “it would not appear to be a pressing priority to repeal Section 13.” Nonetheless, the Committee concluded that:

170. We recommend the repeal of section 13 of the Defamation Act 1996. The anomalies it creates are more damaging than the mischief it was intended to cure. There is no persuasive argument for granting either House a power of waiver or for restricting such a power to defamation cases alone. A wider power of waiver would create uncertainty, and have the potential to undermine the fundamental constitutional principle of freedom of speech in Parliament.

The Government responded to the report in December 2013 (Cm 8771) and agreed that section 13 should go when parliamentary time permitted.

The Government was given a nudge by former Commons Members of the 2013 Joint Committee (Conservatives Mr William Cash and Mr Bernard Jenkin and Labour’s Thomas Docherty) who tabled New Clause NC1 to the Criminal Justice and Courts Bill and Amendment 4 to the Deregulation Bill, both propositions repealing section13 without replacement. The New Clause was withdrawn before the report stage of the Criminal Justice and Courts Bill, but the Government Ministers in charge of the Deregulation Bill (Conservative Solicitor General Oliver Heald and Liberal Democrat Deputy Leader of the House Tom Brake) added their names to Amendment thereby adopting it as a Government Amendment and virtually guaranteeing its path to the statute book. So it looks likely section 13 will eventually be repealed via the Deregulation Bill, due to be carried over as amended into the 2014-15 Session, among its varied provisions for the repeal of legislation “no longer of practical use”. (The Members’ explanatory note to Amendment 4 described the provision circumspectly as “hardly used” rather than the Green Paper’s bolder formulation’s “never used.”)

William Cash and Thomas Docherty spoke to the amendment with support from the Solicitor General.

As a carry-over Bill, the Deregulation Bill still needs to be considered by the House of Lords. But unless their Lordships have any strong objections, it appears that by the end of the current Parliament, Section 13 will be no more (as its repeal will come into force two months after the Deregulation Act is passed).

In addition to the Bill, a resolution was also agreed in the Commons on 8 May 2014, mirroring a Resolution in identical terms passed by the House of Lords on 20 March 2014, that legislation creating individual rights which could impinge on the activities of the House should in future contain express provision to this effect. This was another recommendation from the 2013 Joint Committee to be adopted quietly.

Reform of parliamentary privilege tends to emerge in this piecemeal way, and the end of the waiver embodied in section 13 is yet another example of this practice.

Alexander Horne is a Barrister (Lincoln’s Inn) and is Legal and Senior Policy Adviser at the House of Commons Scrutiny Unit. Oonagh Gay is a senior researcher at the Parliament and Constitution Centre in the House of Commons. The views expressed are the personal views of the authors and do not reflect the views of any other person or institution. Further information on the business of the House of Commons can be found at: Second Reading: The Blog of the House of Commons Library

(Suggested citation:A. Horne and O. Gay, ‘Ending the Hamilton Affair?’ U.K. Const. L. Blog (21stMay 2014) (available at http://ukconstitutionallaw.org/).

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Merris Amos: Scotland, Independence, and Human Rights

Merris Amos.jpgIn its weighty tome, Scotland’s Future, the Scottish Government promises that at its heart, an independent Scotland will have “the respect, protection and promotion of equality and human rights.” Furthermore, this will not be just an empty gesture but will be “enshrined in a written constitution to bind the institutions of the state and protect individuals and communities from abuses of power.” The promise is also made that as an independent state, Scotland will live up to its international obligations on equality and human rights. Furthermore, protections already enjoyed will continue in a written constitution. These will include the rights contained in the European Convention on Human Rights (ECHR) but other rights will also be considered for inclusion. Specifically mentioned are the rights contained in the UN Convention on the Rights of the Child and principles designed to “deliver greater equality and social justice.” Any new rights or future changes will be developed in “full consultation with the people of Scotland”. It is also promised that Scotland will continue to have its own human rights body.

If the intention is to encourage a “yes” vote from those basing their vote for or against Scotland’s independence on human rights protection alone, this is a very good start. Leaders of the major political parties in the rest of the UK find it difficult to mention the words “human rights” let alone make promises to improve the legal protection of human rights or explore the possibility of adding new rights to those already protected by the Human Rights Act (HRA). Officially, the most recent pronouncement was from the Commission on a Bill of Rights which reported in 2013. Unable to agree on much, a majority of the Commission concluded that there was a strong argument in favour of a UK Bill of Rights which would build on all of the UK’s obligations under the ECHR and provide no less protection than was contained in the HRA. However, a different majority concluded that socio-economic rights were not something that should be included and that the present declaration of incompatibility contained in section 4 of the HRA should be retained as “there was no desire for conferring on courts a power to strike down inconsistent Acts of Parliament.” There has been very little progress on human rights law reform since.

By contrast, whilst the details are limited, the Scottish Government’s promises about human rights would address at least three of the problems with the current state of legal protection of human rights in the UK which the Commission on a Bill of Rights failed to do. First, as the Scottish Government itself recognised, whilst Scotland’s current equality and human rights framework is strong, that framework’s future cannot be guaranteed under current constitutional arrangements. The same goes for the rest of the UK. Once campaigning gets under way for the 2015 UK general election, it is likely that the repeal of the HRA will once again be a feature of the Conservative Party’s campaign as it was for the 2010 general election. Including human rights protection in a written constitution offers much more effective protection from the political winds of change than that offered by a mere Act of Parliament. Although it is likely that politicians would continue to criticise politically unpalatable judgments, such as those concerning prisoner voting, such criticism would be unlikely to be accompanied by promises to repeal or amend the constitution, particularly if the new constitution occupied a special place in the hearts and minds of the Scottish people. The experience of other countries demonstrates that including human rights protection as a key part of a written constitution also improves knowledge of and respect for human rights law, particularly if changes to present arrangements are developed in full consultation with the people of Scotland.

Second, whilst the details are not clear, it is likely that a written constitution containing human rights protection would mean that the legislation of the new independent Scottish Parliament would be vulnerable to legal challenge in the courts were it to be incompatible with human rights law. Whilst under the Scotland Act 1998 this is the situation at present in relation to the devolved legislation of the Scottish Parliament, it is not the situation in respect of the laws of the Westminster Parliament. Under section 4 of the HRA all a court can do is issue a declaration of incompatibility and wait for government, and Parliament, to change the law with all the delay and uncertainty that this entails. And finally, given the traditionally strong commitment to social justice in Scotland and willingness to include in the written constitution rights additional to those in the ECHR such as children’s rights and principles designed to “deliver greater equality and social justice”, it is likely that by contrast to the rest of the UK, human rights protection in an independent Scotland would extend to justiciable economic, social and possibly cultural rights. As appreciated during the lengthy process towards a Bill of Rights for Northern Ireland, often such rights have a more concrete meaning for people than civil and political rights and can help to muster support for human rights law generally whilst providing much needed protection for vulnerable individuals in an era of growing inequality.

Involving the people of Scotland in the future of human rights law, entrenching the outcome in a written constitution to which the legislature was subject, extending protection to economic, social, cultural and other human rights and support for a strong independent human rights commission would undoubtedly place an independent Scotland in the leading position on the protection of human rights when compared to the remaining countries of the United Kingdom. Were the HRA to be repealed following the next general election, the comparison would be even starker. But before planning a move to Scotland, it is important to be realistic about what will actually be achieved in relation to human rights protection were Scotland to achieve independence.

With a limited portfolio, it is fairly simple for the present Scottish government to be positive about human rights protection. Issues which have caused consternation for politicians at Westminster, such as the detention, control and deportation of terrorist suspects, have not arisen in the Scottish legal or political system. An independent Scotland would have responsibility for all matters including immigration and national security and much more difficult human rights questions would arise. Whilst it may be resisted, there would be a strong temptation to water down promised human rights protection in the face of public perceptions that human rights law is a “villain’s charter” an “obstacle to protecting the lives of citizens” and “practically an invitation for terrorists and would-be terrorists to come to Scotland”. Such notions have been prevalent in the UK print media over the last 14 years, including Scotland. Much initial work would have to be done to essentially rebrand the idea of human rights in the minds of the public, ensure sufficient education and promotion and encourage respect for the human rights parts of the written constitution. As the experience of other states demonstrates, the budget for an “open, participative and inclusive constitutional convention” would be considerable.

A related issue is what relationship Scottish courts in an independent Scotland would have with the European Court of Human Rights (ECtHR) when adjudicating on human rights claims. It is assumed that Scotland would be a party to the ECHR and thereby accept the right of individual petition to the ECtHR. Were the new constitution to be silent on the matter, it is also likely that Scottish judges would make full use of the jurisprudence of the ECtHR. Whilst there is considerable political mileage in the idea of a “Scottish” approach to human rights interpretation and application, which would garner respect and a margin of appreciation for Scotland before the ECtHR, again it is necessary to be realistic. It is only in a small minority of claims that there is actually room for a national approach. A recent example is the UK broadcasting ban on political advertising which was upheld by the ECtHR in Animal Defenders International v United Kingdom 2013. Other attempts to seek respect for a UK approach to human rights from the ECtHR, the blanket ban on prisoner voting for example, have not been successful.

In relation to the range of rights to be protected, it is important to appreciate that there exists a strong narrative force in the UK, and other national jurisdictions, against making economic and social rights justiciable in the same way as civil and political rights. As noted above, this was the conclusion of the Commission on a Bill of Rights and despite the promise of the Scottish government, the result of further consultation with powerful interests groups may mean that this promise is impossible to deliver. As it was for the HRA, a first step may be simply to offer protection to the rights contained in the ECHR and Protocol No.1, as noted in Rights Brought Home, the White Paper accompanying the Human Rights Bill, “ones with which the people of this country were plainly comfortable”. And finally, it is not clear from Scotland’s Future how the written constitution would limit the power of the Scottish Parliament to legislate. It is possible that human rights protection may afford Scottish judges something more than a declaration of incompatibility but less than a strike down power raising similar problems of delay and effectiveness which have bedevilled section 4 of the HRA.

Whatever the outcome of the referendum, by making the protection and promotion of equality and human rights as a part of a written constitution one of the issues for consideration, the Scottish Government has set an excellent example. Should the vote be for independence, those with the power to embrace and reform human rights law in the rest of the UK should take careful note.

Merris Amos is a Senior Lecturer at the School of Law, Queen Mary, University of London.

(Suggested citation: M. Amos, ‘Scotland, Independence, and Human Rights’ U.K. Const. L. Blog (13th May 2014)  (available at  http://ukconstitutionallaw.org/).

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News: The House of Commons Political and Constitutional Reform Committee Reports on Royal Consent

Parliament from river

The House of Commons Political and Constitutional Reform Committee reported on the practice of Royal Consent. Royal Consent was discussed on this blog in a post by Thomas Carter Adams. The doctrine requires the consent of the Queen, or, in some situations, the Prince of Wales, before a bill which affects their personal interests is discussed in Parliament.

Unsurprisingly, the Committee recommends that this requirement be abandoned.  The Committee – like the correspondents to the earlier blog post – had some difficulty identifying precisely what type of constitutional rule this was: whether it was an aspect of the prerogative, a rule of parliamentary procedure, or a convention.  It concludes that it is a rule of parliamentary procedure, and so falls within the province of each House of Parliament to modify or remove.  The Committee concluded that the provision could be abolished by the Houses making an address to the Crown followed by a Resolution of each House.

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Alexander Horne: Is there a case for greater legislative involvement in the judicial appointments process?

Alexander HorneThe dramatic increase in public law and human rights cases coming before the UK Supreme Court (and the Appellate Committee before it) means that the UK’s top court is more frequently determining essentially socio-political questions. In addition, in recent years, the judiciary has pressed for a rather more expansive definition of judicial independence, with a greater emphasis on the institutional independence of the judiciary. This has tended to lead to more powerful leadership roles, for senior judges in particular.

These changes, coupled with a greater focus – by both the judiciary and the executive – on the doctrine of the separation of powers, has resultedin judges taking responsibility for matters which, prior to theConstitutional Reform Act 2005, would most likely have been left to the Lord Chancellor (and his former Department). In the light of this expanding judicial role, now seems an appropriate time to question whether any new mechanisms for increasing political accountability, such as a parliamentary confirmation procedure, are needed for appointment to the most senior judicial offices (including, but perhaps not limited to, the UK Supreme Court, given the growing managerial roles played by the Lord Chief Justice and Heads of Division).

Confirmation processes are often dismissed out of hand – frequently with negative references to the partisan approach seen in the United States of America. Lord Neuberger (then Master of the Rolls) captured the common view of hearings before the USSenate Judiciary Committee, when he observed:

“Once you start muddying the water and involving the legislature in the appointment of judges, you risk going down a slippery slope, not quite knowing where it will end. The last thing that we want is the sort of thing you see in the United States. I do not pretend that it happens with every appointment to the Supreme Court but we all remember interviews and proposed appointments that led to something of a jamboree or a circus. I do not think that we want that.” (Evidence to the House of Lords Constitution Committee, November 2011)

 Of courseviews on the US experience do not go entirely one way. Graham Gee has previously considered whether the lessons drawn by UK commentators are necessarily justified; suggesting that most hearings do not generate political conflict and that in any event, “hearings are not the primary source of the politicization of the process” given the important role that partisan considerations play in the President ‘s nominations for the federal bench. Nonetheless, it must be acknowledged that a knee jerk reaction against the US procedure remains commonplace.

Critics of hearings frequently point to the potential impact on judicial independence. In its report on Judicial Appointments, published in March 2012, the House of Lords Constitution Committee summarised many of the oft-heard objections when it concluded that:

“Parliamentarians should not hold pre- or post-appointment hearings of judicial candidates, nor should they sit on selection panels. Political considerations would undoubtedly inform both the selection of parliamentarians to sit on the relevant committees or panels and the choice of questions to be asked.”

In spite of this, issues around judicial independence and accountability are now receiving more interest from academics and some parliamentarians. The question of whether to introduce parliamentary hearings received some attention during the consideration of theconstitutional reformswhich eventually led to the passage of the Constitutional Reform Act 2005. Scholars such as Keith Ewing and Robert Hazell and the former Permanent Secretary of the then Lord Chancellor’s Department, Sir Thomas Legg QC,argued that nominees for the new Supreme Court could be interviewed or confirmed by Parliament. The Study of Parliament Group published The Changing Constitution: A Case for Judicial Confirmation Hearings?, a short report by this author, in 2010.  Areport by Policy Exchange in 2011 suggested that:

“[A] more radical approach to judicial selection should at least be considered – namely legislative oversight of appointments to the Supreme Court. This would have the advantage of ensuring that judges retained their independence, but would be subject to Parliamentary scrutiny prior to their appointment.” (Policy Exchange, Bringing Rights Back Home)

And in 2012, the think-tank CentreForum published a report by Professor Alan Paterson and Chris Paterson, entitled Guarding the Guardians (the title may give some clue as to their conclusions)

The recently concluded project on the Politics of Judicial Independence, involving the Constitution Unit, Queen Mary and the University of Birmingham, is another good example – posing challenging questions about the balance between judicial independence and accountability – asking“who is now accountable for the judiciary, and to whom?” and “what are the proper limits of judicial independence?”.  Views on the subject of confirmation hearings were splitin a seminar on the subject of Judicial Independence, Judicial Accountability and the Separation of Powers, but a number of potential advantages were identified, including the fact that hearings could enhance the legitimacy of judges. Moreover, recent experience of the introduction of hearings in Canada, addressed in a series of articles (e.g. Peter Hogg, Appointment of Justice Marshall Rothstein to the Supreme Court of Canada, (2006) 44 Osgoode Hall Law Journal 527), suggest that one does not have to emulate the contentious US model.

Following in the footsteps of these earlier studies, the Study of Parliament Group has just published a new research paper, by the author of this post, entitled Is there a case for greater legislative involvement in the judicial appointments process?  It seeks to address some of the conceptual arguments for greater political accountability in the appointment process and also considers the expanding ambit of judicial independence. Focusing on whether parliamentarians should have a role in the judicial appointments process, it asks what is meant by political accountability in the context of judicial appointments and considers what evidence there is that greater accountability is necessary.

The paper examines whether new methods of accountability could be introduced in the UK without impacting on judicial independence, and seeks to shed light on these questions by assessing the recent move by the UK Parliament to introduce pre-appointment hearings for other public appointments. Finally, it evaluates whether such processes are readily transferable and, if so, whether UK parliamentary committees are well placed to undertake this task.

The paper concludes that the introduction of pre-appointment hearings for the most senior judicial appointments would have a number of benefits and could help ensure that independent and robust candidates are appointed.  As to the question of politicisation, it considers that as long as there is a continued role for an independent judicial appointments commission to recruit and screen candidates at first instance, any significant politicisation of the process could be avoided.

Whether recent examples of workable models from the UK, or from other jurisdictions, can convince the senior judiciary of the merits of such a change is clearly open to some doubt. But the author hopes that this new work might nonetheless inform any future debate on these issues.

This blog post is published to coincide with the launch of a new Study of Parliament Group Research Paper on Judicial Appointments.

 Alexander Horne is a Barrister (Lincoln’s Inn) and is currently the Legal and Senior Policy Adviser at the House of Commons Scrutiny Unit. The SPG Paper ‘Is there a case for greater legislative involvement in the judicial appointments process?’ is based on an MPhil thesis undertaken part-time at Queen Mary, University of London between 2010-13.  The views expressed are those of the author and should not be taken to reflect the views of any other person or organisation.

(Suggested Citation: A. Horne, ‘Is there a case for greater legislative involvement in the judicial appointments process?’ U.K. Const. L. Blog (27th March 2014) (available at  http://ukconstitutionallaw.org/).

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Scot Peterson: Constitutional Entrenchment in England and the UK

peterson_scotFrequently people think that there are only two ways address flexibility in a constitution: to legally entrench an entire document and to protect it with strong judicial oversight, or to have a political constitution and a sovereign parliament, which, in the words of A.V. Dicey, ‘has … the right to make or unmake any law whatever….’ One aspect of this sovereignty is that parliament cannot bind itself: ‘That Parliaments have more than once intended and endeavoured to pass Acts which should tie the hands of their successors is certain, but the endeavour has always ended in failure.’

Parliament has regularly used language limiting its future options. The Bill of Rights (1688) says that the rights declared there ‘shall be declared, enacted, and established by Authority of this present Parliament, and shall stand, remain, and be the Law of this Realm for ever’. More recently, Parliament promised in the European Union Act 2011 to hold a referendum on any law that increased the competencies of the EU and put in place mechanics for holding itself accountable through judicial review. Are these attempts really as pointless as Dicey claims?

The intention of the convention parliament in 1689 was to put an end to the conflicts of the preceding seventy years (interrupted by the reign of Charles II). The more recent act, too, was a product of what preceded it. Originally the Labour government had ruled out a referendum on the Treaty Establishing a Constitution for Europe (2004), which among other things introduced new shared competencies with member states. When the press speculated about Labour’s prospects before the 2004 European Parliament Elections (June 2004), Tony Blair announced that there would be a referendum on the treaty. After the treaty collapsed (because it was rejected in France and the Netherlands), the member states entered into the Lisbon Treaty, which had many of the same characteristics as the proposed constitution. Conservatives accused Labour of inconsistency in being unwilling to hold a referendum on the Lisbon Treaty, and in their manifesto promised a referendum lock on any future transfers of competencies, so that politicians would not be able to waver for short-term, political purposes. That promise became part of the coalition agreement in 2010 and was enacted into law.

The language used by parliament in both of these cases is a commitment device. It need not even be judicially enforceable to constrain (impose additional costs on) future choices by the legislature. Public embarrassment, through a newspaper’s exposure of inconsistency, is a practical means of ensuring accountability, so long as the newspapers do their job. And, as under the Human Rights Act 1998, the legislature may permit the courts to point out, but not to correct, inconsistency with entrenched law. An overly simplistic distinction between codification and a political constitution eliminates complex differences between these tools, and wastes resources that should be available to policy makers.

Scot Peterson is the Bingham Research Fellow in Constitutional Studies and Junior Research Fellow in the Social Sciences at Balliol College, University of Oxford.

(Suggested citation: S. Peterson, ‘Constitutional Entrenchment in England and the UK’ U.K. Const. L. Blog (25th March 2014) (available at  http://ukconstitutionallaw.org/).

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Meg Russell: The Byles/Steel bill – unless amended – holds grave dangers for the Lords

Meg RussellOn Friday 28 February Dan Byles’ Private Member’s Bill on Lords reform completed its Commons passage. It is now in the Lords, and will be sponsored by David Steel. The bill, which allows retirement from the Lords and expulsion of non-attendees and serious criminals, has been presented as a small, uncontroversial “housekeeping” measure. But as already argued in an earlier blog post, as currently drafted it would in fact introduce a very major change that would alter the Lords fundamentally, and in very undesirable ways.

I will not repeat the basic arguments in my earlier post, which is still available to read (see here). But it urged an amendment at Commons report stage, to ensure that those allowed to depart the Lords (through retirement or expulsion for non-attendance) cannot immediately run for the House of Commons. Such calls were made throughout the bill’s Commons passage, but have been resisted by ministers. This is both puzzling and very worrying. It is puzzling because a ‘cooling off’ period before those departing the Lords could run for the Commons has been included in numerous earlier proposals, from the Wakeham Royal Commission to the Clegg bill (both of which are quoted in my previous post). It is worrying for reasons that I will now spell out, somewhat more forcefully than before. In the rest of this post I summarise the problem, reflect on what the Lords should do, and end on responses to some points that have been made against the change that I propose – all of them unconvincing.

The bill as drafted (clause 4(5)(b)) explicitly allows departing Lords members to run for the Commons. The problem that this creates applies not to existing peers, who presumably gave up any Commons ambitions when accepting their life peerage. It relates instead to new members appointed after the bill has passed. One of the weaknesses of the debates to date (on which more below) is that they have focused too narrowly on the likely short-term effects, in terms of how many current peers may depart – and insufficiently on the long-term effects, in terms of future appointments. But while there may be small, short-term gains through allowing a few peers to retire, the effects of the bill in the longer term would be far larger, and potentially extremely damaging to the Lords.

To illustrate, let us consider three possible candidates for the Lords once the bill has passed:

  • Candidate A has served two terms as an MP, and is appointed to the Lords in 2015 after narrowly losing his seat. He badly wants to regain his constituency, and spends much of the next five years working there, maintaining a constituency office and regularly campaigning door-to-door.
  • Candidate B has fought several Commons seats unsuccessfully in the past, and after missing out again in 2015 is rewarded with a seat in the Lords. But she still yearns after a Commons career, so seeks reselection as soon as possible, and uses the Lords to try and raise her local profile above that of the incumbent local MP.
  • Candidate C is appointed to the Lords in 2015 after many years working as an adviser to his party leader. From there he starts looking for a Commons constituency, and uses Lords speeches primarily to broadcast his suitability as a future MP, and maybe even a future leader.

Candidates A, B and C are not so very different to many who have been appointed to the Lords in the past – indeed, around 60% of current party peers are either former parliamentary candidates or MPs. The key difference is that such people currently have to weigh up carefully whether they still want a Commons career. Those in doubt will turn down any offer of a peerage; those accepting one will set other ambitions aside. I do not see candidates A, B and C as bad people who are doing anything underhand or inappropriate; it is understandable that they should see the Lords as a useful temporary resting place. Nor would their party leaders be acting improperly; indeed, it is easy to see how and why leaders would embrace these new patronage powers. The point is that the bill as it stands fundamentally changes the calculus both for those offered seats in the Lords, and for those doing the appointing. Unless the route from Lords to Commons is explicitly ruled out, people will understandably conclude that it is fine to use it. If the bill passes in its current form, please have no doubt: these changes are certain to occur.

It should hopefully already be clear what effect this would have on the Lords. Many members would become far more preoccupied with constituency business and campaigning than with parliamentary scrutiny work; many would watch far more carefully what they said, in order to appeal to the media, local voters and their party leaders; in seeking to make Lords debates more eye-catching, they would make those debates more politicised. In addition, many members would become short-term occupants of the Lords, staying only a few years before another career could be developed – with a consequent loss of long-term thinking. Should this be considered fanciful, look (as set out at greater length in my previous post) at Ireland, and more recently Canada. In Ireland chamber-hopping is absolutely the norm, and Senators (despite not being directly elected) spend much of their time on local campaigning work. Only last month I acted as an adviser to the Irish Constitutional Convention, where this problem with their parliament was much lamented.

The Byles bill has been presented as a small “tidying up” measure, but these changes would be fundamental, and major. For hundreds of years (with a couple of exceptions, discussed below) members have been able to move from Commons to Lords but not the other way around. The bill would thus change centuries of British tradition, and the consequences need very careful thinking through. It could be argued to the bill effectively ends life peerages in all but name: allowing members to depart the chamber when they wish, at any age and after any period of service. But members can de facto already do this if they really wish, simply by ceasing to turn up. The one thing that they cannot do is run for the Commons. Perhaps some see advantages in changing these historic arrangements; but if so they should make a positive case for change, out in the open, and subject to proper scrutiny. This has absolutely not happened so far.

During the passage of the Byles bill through the Commons, concerns about these matters were raised repeatedly, particularly by Conservative backbencher Jacob Rees-Mogg. In response, at second reading last October Dan Byles said that, “That is the sort of detail that I would be more than happy to discuss… and we could consider whether some small amendment might be made in Committee” (col. 1005). When a ‘cooling off’ period was specifically suggested, so that departing peers had to wait several years before running for the Commons (as was provided in clause 41 of the Clegg bill), Byles said that “I would be interested to look into whether a time bar solution could be achieved” (col. 1055). Hence it was reasonable to assume that the problem would be resolved by government-backed amendments at committee stage – but it was not. At report stage last week the concerns were repeated. Rees-Mogg proposed amendments (particularly amendment 21) to deal with them, arguing that it was “fundamentally undesirable” (col. 558) for the Lords to become a base for aspirant MPs. Dan Byles responded that “we all agree that we would not want the House of Lords to become a training ground for a seat in the House of Commons” (col. 560). Stephen Twigg, speaking for the opposition frontbench, described this as “a serious issue” and “a risk” (col. 561). The minister likewise said that “We do not want to see the House of Lords become a nursery for the Commons where young hopefuls start their careers” and claimed to “fully understand” the concerns expressed (col. 562). Nonetheless no amendment was made. Despite pressures both behind-the-scenes and in the chamber, ministers had resisted changes to resolve the problem.

These developments demonstrate in part the weakness of the private members’ bill process. The bill had its second reading and report stage on ill-attended Fridays, with little media attention. Its sole committee session lasted a mere 38 minutes. There was no pre-legislative scrutiny, no call for evidence, no opportunity for witnesses to appear, and consequently no outside group engagement. The limited time available also led to great resistance to amendments. This was worse for the Byles bill for most PMBs, due to fears that any Commons amendments would make its Lords passage more difficult. Those in the Commons were warned to stick rigidly to the contents of David Steel’s previous bill on the topic, which had passed the Lords in 2012-13. Steel’s bill had also failed to include a ‘cooling off’ period, but it was a similarly fragile creature, with fears at the time that any amendments would derail it. Yet everyone knew that its prime purpose was as a spur to government action; and once government gets involved, Private Members’ Bills inevitably get tidied up. Now, however, the original Steel bill is being treated as a kind of revered text, which cannot be altered. The deafness to argument which is occurring over this bill is a classic recipe for bad policy-making, and even for policy disaster. On such an important matter it is essential for reasoned amendments to be properly debated and considered.

So the Lords is now left in a dreadful position. Typically when a bill leaves the Commons with outstanding problems, the Lords provides the forum for them to be carefully discussed and sorted out. It would be a terrible irony if this norm was broken with respect to a policy that concerns – and indeed threatens – the House of Lords itself. But the government claims that any Lords amendments will kill the bill, due to lack of time for these to be considered in the Commons. I am reliably advised by Commons clerks that this is not actually true – while there are no Private Member’s Bill Fridays left, several tricks could be used to get necessary Lords amendments through the Commons by May if the government wants the bill. The Lords therefore should carefully consider possible amendments to deal with the problem.

Options include:

  • Inserting clause 41 of Nick Clegg’s bill of 2012, which would require a ‘cooling off’ period of 4 years (which could be amended to a longer period). This seems the preferable and least contentious solution.
  • Simply removing subclause 4(5)(b), which provides that those departing the Lords are not disqualified from “being, or being elected as, a member of that House [i.e. the House of Commons]“. This would retain the current absolute bar on future candidacies – which probably goes too far, and could create legal uncertainty.
  • Restricting retirement provisions to current peers, not new entrants. Also problematic, as pressures for retirement would recur and require further legislation. Would also need to apply to provisions for expulsion by non-attendance, otherwise this creates a loophole.
  • Restricting these same provisions to those aged over 65 (as was suggested by Jacob Rees-Mogg’s unsuccessful amendment 3 at Commons report stage for the first of the provisions). This too would be a reasonable long-term solution.

Any of these amendments would resolve a weakness highlighted by MPs and therefore be unlikely to face Commons opposition. If the Lords does amend the bill, and the government does not deploy the tactics available to get it through the Commons, it is ministers not peers who would be culpable for killing the bill. If the bill is not amended in one of these ways, my reluctant advice to peers would be to resist it.

It pains me greatly to have to suggest this latter outcome, even as a possibility. I have long argued for the next small steps on Lords reform, both publicly (e.g. here and here) and behind-the-scenes. Allowing retirement would clearly be a beneficial next step. But a conspiracy of silence to get a flawed version of retirement onto the statute book is clearly a bad idea, and the threats in the bill as it stands are far too great. I began research in this area 16 years ago precisely in order to offer objective, evidence-based advice on Lords reform. That evidence tells me that any gain from the bill as is will be relatively small, while its long-term consequences will be huge and negative. Opening up a direct route from Lords to Commons, which has been closed for centuries, would be a major constitutional and political change. If this bill is truly about “housekeeping”, then using one of the amendments above to maintain something similar to the status quo is essential.

Postscript
Finally (in a post which is already far too long) the really committed may want to hear some of the arguments which have been made against the ‘cooling off’ period, and why I believe that they are wrong:

Argument 1: Peers have been able to leave the Lords and run for the Commons before, under the 1963 and 1999 Acts.

Response: these changes occurred in very different circumstances, and only ever extended to those who had inherited their seats in the Lords (i.e. entered by accident of birth) not those who had themselves been appointed. Hereditary peers of “first creation” were not covered by the 1963 Act, while the 1999 Act was a one-off exodus. Neither implied any change to the type of people appointed.

Argument 2: The ‘cooling off’ period proposed in other packages has been in the context of election to the second chamber, not appointment.

Response: This is simply untrue. The Wakeham Royal Commission (as quoted in my previous post) was particularly strong on this point, despite proposing a largely appointed house.

Argument 3: Once in the pleasant environment of the Lords, few people will feel motivated to depart for the Commons.

Response: I believe that this argument is naive, and too influenced by feelings among some current peers. It is important to remember that those now in the Lords have – by definition – renounced the option of a future Commons career. But the bill allows people who feel very differently to be appointed, and their party leaders will be tempted to do so. It is undeniable that a Commons career remains a desirable to many people active in politics, for example promising a salary, access to senior ministers, and a chance at a cabinet career. Indeed a majority of current party peers have run (successfully or unsuccessfully) for the Commons in the past.

Argument 4: Introducing a cooling off period would deny democratic rights to people to run for the Commons.

Response: In fact, a bill with a cooling off period (of say 4, 5 or 10 years) would significantly increase freedoms beyond what they are now. Life peers have been barred since 1958 from running for the Commons (and likewise, aside from exception 1 above, this has always applied to hereditary peers). Few have complained about this restriction.

Argument 5: There is no time in the Lords to consider amendments, given that the second reading is occurring so late (28 March).

Response: It is very unfortunate that the sponsors of the bill chose a late second reading date, seemingly to procedurally block the opportunity for amendments. The Companion to Standing Orders does set down minimum time periods between stages (e.g. 14 days between second reading and committee stage), but these are only ‘recommended’, and it is not unusual for them to be breached by agreement of the usual channels. If an amendment is put down, a committee stage will be required to debate it, and one can be provided.

Argument 6: It would be better to get this bill through, and if a problem occurs to then legislate to correct it afterwards.

Response: This is a very dangerous suggestion. Once the legislation is on the statute book there is absolutely no guarantee that it can be changed. A “corrective” PMB in the next session could easily die, or indeed be blocked by ministers. Then once the route from Lords to Commons has been opened post-2015, it would probably prove impossible close it again: such legislation would appear critical of particular individuals who have taken this route, or of their party leaders; party leaders will anyway by then have adjusted to the enhanced patronage that the bill provides. Far better not to take the risk – even if this means waiting for a better safeguarded retirement provision in a future bill

Dr Meg Russell is Deputy Director of the Constitution Unit, and Reader in British and Comparative Politics at UCL. She is author of The Contemporary House of Lords: Westminster Bicameralism Revived (Oxford University Press, 2013) and Reforming the House of Lords: Lessons from Overseas (Oxford University Press, 2000), and has acted as adviser to the Royal Commission on Reform of the House of Lords, the House of Lords Appointments Commission, the Leader of the House of Commons, and various parliamentary committees.

REPOSTED WITH THE KIND PERMISSION OF THE CONSTITUTION UNIT BLOG.

Suggested citation: M. Russell, ‘The Byles/Steel bill – unless amended – holds grave dangers for the Lords’  Constitution Unit Blog (5th March 2014)  (available at http://constitution-unit.com)  OR  M. Russell,  ‘The  Byles/Steel bill- unless amended – holds grave dangers for the Lords’ U.K. Const. L. Blog (5th March 2014) (available  at http://ukconstitutionallaw.org/).

 

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