Parliament can do anything – except replace the House of Lords? For over a century, replacing the House of Lords has brooked no delay. Now, at last, the Government seems tempted to dam the brook, by substituting an elected Senate for the old Second Chamber. At first glance, this is constitutionally straightforward. Whatever Parliament enacts is law – so surely an Act of Parliament can lawfully replace the House of Lords? But such an Act may be open to challenge.
Traditionally, parliamentary sovereignty admits of one exception – ‘Parliament cannot … bind its successors by the terms of any statute‘ (Alpheus Todd, Parliamentary Government in the British Colonies (Boston, 1880), p.192). To use the technical jargon, Parliament has continuing sovereignty, which it cannot limit. A successful challenge, then, could only be mounted if (1) parliamentary sovereignty is continuing, and (2) replacing the House of Lords violates continuing sovereignty. In this article, I argue that both conditions are satisfied.
Continuing Sovereignty: Existence and Scope
I shall begin by considering (1). Parliament can replace the House of Lords, unless there are constraints on its sovereignty. It is trite law that there are no external constraints on parliamentary sovereignty. As Dicey formulated the rule, no person or body has the ‘right to override or set aside the legislation of Parliament’ (A.V. Dicey (ed. J.W.F. Allison), The Law of the Constitution (Oxford, 2013), Vol. 1, p.27). But the theory of continuing sovereignty posits an internal constraint, suggested by a paradox in the principle of parliamentary sovereignty itself. Parliamentary sovereignty can be summarised in eight words – whatsoever the Queen enacts in Parliament is law. The paradox in this principle is apparent – if Parliament can enact any law, can it limit its ability to enact laws in the future? According to continuing sovereignty, the answer is no. An Act of Parliament purporting to limit parliamentary sovereignty should be set aside – it is an exception to the general Diceyan rule. Two questions arise. First, does continuing sovereignty exist? Second, if it does, what is its scope?
Taking up the first question, principle and precedent demonstrate the existence of continuing sovereignty. As a matter of principle, Parliament would act ultra vires if it sought to limit its sovereignty. For parliamentary sovereignty is not self-created. In a democracy, sovereignty is delegated by society at large – Parliament limiting its sovereignty thus amounts to a delegate altering the terms of delegation. This is a paradigm case of excess of powers. Precedent supports this principle. British constitutional history is replete with futile attempts to limit parliamentary sovereignty. To take celebrated examples, Acts of 1368 and 1800 entrenched Magna Carta, as well as the Established Church and Union in Ireland, against repeal or abolition by future Parliaments. But statutory entrenchment availed neither Charter, Church nor Union in their hour of trial. Parliament abolished the latter two in 1869 and 1922, and has progressively repealed all but three articles of the former.
Turning to the second question, the scope of continuing sovereignty is delineated by the principle underpinning its existence. Acts of Parliament may be set aside when they alter the terms by which society delegates sovereignty to Parliament. What, then, are these terms? Absent a written Constitution, society has not explicitly set forth the terms delegating sovereignty to Parliament. They must therefore be found in ‘customary law’, which reflects a ‘consensus’ in society about where sovereignty is located (Jeffrey Goldsworthy, Parliamentary Sovereignty: Continuing Debates (Cambridge, 2010), p.124). The rules of this customary law fall into two broad categories. Rules delegating sovereignty must define the sovereign, as well as describe its power. After all, sovereign power is useless unless wielded by someone. The definition of the sovereign may be further broken down. In Jackson v Attorney General, Lord Steyn analysed the definition into two components, the ‘static’ component, which describes the ‘constituent elements’ of the sovereign, and the ‘dynamic’ component, which describes how these constituent elements function together ‘as a law making body’ (at [81]). Applying this analysis, continuing sovereignty sets aside Acts of Parliament which alter either its customary lawmaking power, its customary constituent elements or the customary method by which these elements exercise the power to make laws.
Replacing the House of Lords: Reform or Redefinition?
I can now consider (2). An Act replacing the House of Lords could be set aside if it violated continuing sovereignty. The case for this is apparent. Continuing sovereignty includes within its scope the customary constituent elements of Parliament – Crown, Lords and Commons. Replacing the House of Lords alters one of these constituent elements, and so seemingly violates continuing sovereignty. However, there is an obvious lacuna in this reasoning. For Parliament has altered its constituent elements, repeatedly throughout history. Successive waves of reform have modified the composition of the two Houses – the Reform Act of 1832 swept away rotten boroughs from the Commons, while the House of Lords Act 1999 washed out hereditary peers from the Lords. So there are two further questions to answer. First, when does parliamentary reform alter the customary constituent elements of Parliament – or, in other words, when does reform amount to redefinition? And second, does replacing the House of Lords amount to redefinition?
The clue to answering the first question is again found in the principle underpinning continuing sovereignty. Customary law delegates sovereignty to Parliament and, in doing so, defines its constituent elements. It follows that parliamentary reform only violates continuing sovereignty if it alters the customary definition of the constituent elements of Parliament. The courts may set aside Acts which alter any historic consensus about the constitution of Parliament, but must respect Acts which do not. This approach provides a rationale for the distinction drawn by Lords Steyn and Brown in Jackson between ‘fundamental’ amendments to Parliament’s constitution, and amendments which fail to surmount this threshold (at [101] and [192] – [195]). Lord Bingham criticized this distinction as ‘vague’ (at [38]), but custom provides a clear test – amendments are only ‘fundamental’ if they alter customary law. Continuing sovereignty thus affords Parliament a measure of reforming elbow room, while prohibiting redefinition of its customary constitution.
Applying this test to the second question requires historical inquiry. Replacing the House of Lords redefines the customary constitution of Parliament if it violates an historic consensus about the constitution of the Second Chamber. There is a strong case that it does. An historic consensus, amounting to a customary law, must be evidenced by the constant and uniform practice of British society. As the Court of Appeal held in Jackson, ‘general recognition by Parliament, the Queen, the courts and the populace’, throughout history, proves the existence of custom relating to the definition of the ‘sovereign legislative power’ (at [97]). But in seven hundred and fifty years of parliamentary history, none of these authorities have ever recognized a democratically elected element in the Second Chamber. By contrast, they have only ever recognized elements ultimately nominated by the Crown – whether the tenure of the nominees was hereditary, life, legal or ecclesiastical. Customary law, then, defines Parliament as including a nominated Second Chamber – an elected Senate amounts to redefinition, not reform.
This lack of precedent distinguishes the introduction of an elected Senate from previous reforms of the House of Lords. The latter did not violate historical consensus, but rather revisited earlier episodes in parliamentary history. For example, life peers, introduced by Acts of 1876 and 1958, were a feature of the Upper House until the late fifteenth century, before which ‘peerages were occasionally granted for life’ (William Stubbs, The Constitutional History of England in its Origin and Development (Oxford, 1878), Vol. 3, p.439). The modern House of Lords, drawn mainly from the life peerage, is thus an amplification of medieval precedent. An elected Senate, however, has no basis in history. An Act which established one should be set aside – it violates continuing sovereignty by altering the customary constitution of Parliament.
Alternative Replacement Methods: Evolving Consensus or Constitutional Moment?
I have argued that Parliament cannot replace the House of Lords. But this does not mean the House of Lords cannot be replaced. The courts can only set aside an Act replacing the House of Lords on the grounds that it violates continuing sovereignty. But continuing sovereignty is not immutable. Parliament cannot alter the terms by which society delegates sovereignty. But society can. Replacing the House of Lords, then, requires an act of society, not simply an Act of Parliament. This begs the question – without a written Constitution, how does society exercise these constituent powers? Two methods exist. Society could implicitly exercise constituent powers by evolving a new consensus. Or alternatively, it could explicitly exercise these powers, by generating a ‘constitutional moment’ to sanction a new Second Chamber. Neither method, however, is free from difficulty.
Theoretically, society can undoubtedly redefine Parliament by implicit methods. After all, Parliament was not created by explicit design – rather, it evolved by consensus growing in English society from the thirteenth century onwards. As social consensus originally defined Parliament, so a new consensus could redefine it to include an elected Senate. But despite theory, implicit redefinition poses a practical difficulty. For the courts must have evidence of a new consensus – that is, examples of its ‘general recognition by Parliament, the Queen, the courts and the populace’ – before they can treat it as a new rule of customary law, altering the terms by which society delegates sovereignty. This evidence must prove both the existence of a consensus redefining Parliament, and the intention of society to accept the redefined Parliament as its ‘sovereign legislative power’. This is a heavy burden of proof.
Take the Parliament Acts. Unlike an Act replacing the House of Lords, these Acts do not alter the ‘static’, but the ‘dynamic’ component of the definition of Parliament, by creating a new method of making laws without the consent of the Second Chamber. There is ample proof that a consensus exists to support this redefinition – the Welsh Church, War Crimes and Hunting Acts are all enforced in defiance of the veto of the House of Lords. But it is highly contested whether this consensus intends to accept the redefined Parliament as its ‘sovereign legislative power’. Again, in Jackson, several Law Lords expressed doubts as to whether the legislative procedure established under the Parliament Acts has plenary competence, of the kind unquestionably enjoyed by a sovereign Parliament (at [102], [139], [178] and [194]). It is unnecessary to wade too deeply into this debate, except to note that it has not been settled by reference to an evolving social consensus. Implicit methods are thus unlikely to give uncontested sanction to replacing the House of Lords.
The upshot is that, to avoid challenge, an Act replacing the House of Lords requires the sanction of an explicit act of society. This should prevent the courts setting aside the Act, as it would alter the customary law underpinning continuing sovereignty. An explicit act of society would naturally be easier to prove than an implicit consensus. But the difficulty would not be proving an explicit act, but procuring one. Under a written Constitution, society has formal mechanisms enabling it to participate in the exercise of constituent powers – through referendums, or requirements to obtain the consent of sub-national legislatures. But the unwritten British Constitution has no such formal mechanisms. Consequently, an explicit act of society could only be procured during a ‘constitutional moment’ – a moment when a constitutional issue engages society at large (Bruce Ackerman, We The People: Foundations (Harvard, 1991), pp.266 – 294). An Act creating a new Second Chamber, resulting from a constitutional moment, might indeed be considered an explicit act of British society.
The House of Lords, then, can be replaced – just not by Parliament alone. Parliament would have to engage society in a constitutional moment sufficient to alter its continuing sovereignty. Such moments have occurred in British history. The Acts of Union in 1707 were preceded by vigorous national debate in England and Scotland, while the Statute of Westminster transferred sovereignty to the Dominions following the endorsement of repeated Conferences. Under modern conditions, a referendum might seem the most plausible method of generating a constitutional moment. Of course, this would create formidable political obstacles to replacing the Upper House. But it would at least ensure that any elected replacement enjoyed broad popular support, enabling it to stand firm amidst shifting political sands.
Krishan Nadesan is a solicitor at Clyde & Co LLP. All views expressed in this post are the author’s own.
The author thanks Alison Young and Michael Gordon for their comments on an earlier draft.
(Suggested citation: K. Nadesan, ‘Can Parliament replace the House of Lords?’, U.K. Const. L. Blog (9th April 2020) (available at https://ukconstitutionallaw.org/))
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