House for sale?

Baroness Deech

I walked to the House on this beautiful sunny morning, skirting the Abbey as well.  Seeing those buildings in all their glory, surrounded by tourists, is a vivid reminder of what the UK Parliament means.  It is highly significant not only to us, but to those around the world who value constitutional government and the rule of law.  Never more so than during this season of uprisings in the Middle East.  What would those people not give to have centuries-old democratic parliamentary government?  When I studied, and later taught constitutional law, it was said by the lawyers that smashing up an existing constitution, or writing a new one, occurred only when there was a revolution or a new state starting from scratch, and that the UK had never had to go through this upheaval.  In the period of the coalition, we are being presented with fixed-term parliaments, the choice of AV and now the removal of the existing peers and their replacement by political hacks.

I shall argue at some point in the debates that the Parliament Acts (which enable the Commons to override the Lords if the latter resist the will of the former for too long) do not apply, on their construction, to the abolition or total overhaul of the Lords.  There are strong legal arguments to this effect, sufficient to enable lawyers to mount a challenge to any Act that purported to remove the existing peers and revamp the House to such an extent that it is no longer the House it has been for centuries.  If that argument were to fail, then the next line of argument is that the existing Parliament Acts could not continue as they are.  It would no longer be “democratic” to give the Commons supremacy over the Lords in the enactment of legislation, for both Houses would be equally mandated to govern.  Another danger is that the Parliament Acts are the only legal way of ensuring that the Commons cannot put off elections for more than five years. The MPs cannot pass a bill postponing an election for longer without the consent of the Lords.  But if the new Lords were as much at the mercy of elections as the Commons are, that would not work either. So plenty of legal hurdles and complications to think about.

10 comments for “House for sale?

  1. 19/05/2011 at 10:49 am

    Curiously, in theory, you can have up to 8 years between elections, even though Parliament would only sit for 5 years.

    In practice, it is possible for there to be a gap of up to one year between the Dissolution and the General Election, although such a delay would cause a constitutional crisis unless supported by all sides of the Commons due to some dire emergency.

    http://www.parliament.uk/documents/commons/lib/research/rp2009/rp09-044.pdf (2nd paragraph, page 11)

    It is actually these little oddities in the law, and that our elections are still governed in part by 300+ year old statues that I like about the UK system of slow evolution to how the Houses work rather than large-scale revolutions that later generations tend to regret.

    Maybe tidying up the laws around when elections are called would be good, but it would take the fun out of debates about when and how elections are called.

  2. 19/05/2011 at 11:01 am

    I’m not convinced that the Parliament Acts do not apply to total overhaul of the Lords. But even if the Parliaments Acts were to be used to overhaul the Lords, what practical use are these arguments? I do not believe that any court would find such arguments `politick’ if an election to a new second chamber had already been held.

    As for the second line of argument: if the fact of certain situations not being democratic were a killer argument in favour of their resolution, Lords reform wouldn’t have be celebrating its centenary…

  3. Denis Cooper
    19/05/2011 at 1:25 pm

    “There are strong legal arguments to this effect, sufficient to enable lawyers to mount a challenge to any Act that purported to remove the existing peers and revamp the House to such an extent that it is no longer the House it has been for centuries.”

    Perhaps the Baroness could tell us which of her ancestors were in the House during those centuries, given that she was only installed as a life peer in 2005, and that only by virtue of previous Acts which have radically changed the composition of the House?

    If she wants to make laws for the people she could try getting herself elected by the people, or would that be beneath her new found dignity?

    • Baroness Deech
      Baroness Deech
      19/05/2011 at 10:59 pm

      The House still has hereditaries, bishops and unelected peers as in the past. There is a step change between say, admitting women and life peers, and evicting the whole lot and starting again with elected persons who are not peers. The only people who could organise and afford election campaigns are those who are selected by the various parties as their party candidates, so in practice an independent like me could not run. Unless you want to donate and run my campaign for me . . .

      • Denis Cooper
        20/05/2011 at 3:02 pm

        In 1999 about 90% of the unelected hereditaries were removed to make room for other unelected people like you, and no attempt was made to challenge the validity of that Act; now it is proposed that about 90% of the unelected people like you should be removed, and even if it became necessary to use the Parliament Acts to winkle you out there would be no realistic prospect of a successful legal challenge.

        Have you forgotten that the introductory text to the 1911 Parliament Act, passed by the Lords, states:

        “… it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis …”

        so how could anyone in the present Lords hope to argue that it should not be used to further that aim?

        When the Bill comes to the House you can raise the point about the difficulties faced by independent candidates under our electoral system – including the £500 deposit, originally introduced primarily to hamper the Labour party – although you’d have a better chance of getting elected under STV than under FPTP.

  4. Carl.H
    19/05/2011 at 2:50 pm

    Does everything have to be democratically popular to be legitimate ?

    We know for certain Governments don’t and cannot act in this manner. Present cuts proving this point. So could one say the present Government has no legitimacy at this present moment in time ? Certainly this gives the Lib-Dems and Nick Clegg in particular absolutely no legitimacy.

    Why the difference in terms of Office ?

    5 years for an MP but 15 years proposed for a member of the HoL. Both having the power to vote against or alter bills why the smaller number of years accountability for MP’s ? Infact why two Houses if they are both to be accountable and democratically elected in a ballot of popularity not of ability, knowledge and judgement ? Surely both will be equal except the longer term of office, less accountability, and the fact the Lords Human Rights maybe affected if the Parliament Act is used.

    In terms of enlightened thinking, judgement, the good of the people and country the draft bill shows the very real difference between a top politician, Nick Clegg Deputy Prime Minister and members of the House of Lords. The question appears to be ” Should the lunatics take over the running of the asylum ?”

    • maude elwes
      21/05/2011 at 12:35 pm

      The lunatics have been running the place for some time, and they are not about to give up the fun of it in the near future. No matter how hard they’re pushed. Thick skinned lot.

  5. MilesJSD
    milesjsd
    19/05/2011 at 8:19 pm

    Glad you’ve put ‘democratic’ in double inverted commas, baroness; because

    there is still no sign nor movement into equal constitutional-entrenchment, workable-legislation, and practical-regulation-and-channeling, for the Individual-citizen-as-part-of-The People, to make ‘upwards’ constructive-contributions, needs & hows submissions, life-experience, scrutiny-points and questions.
    You’ll have to go on as before, patiently waiting for a cabbie, or ‘someone’, to tell you the Peoples’ Mood.

    I suppose we should, 60 million-odd of us Subjects, be thankful and forelock-tuggingly-appreciative of this great-democratic-privilege of looking forward to

    “…plenty of legal hurdles and complications…”

    to occupy our continuous democratic participation, in the form of “thinking about” those plentiful legal hurdles and complications for the next four, five, n-to- the-power-of-x, years.

    Should be a daily snip, there being no other democratic participation for us to bother about;

    and lucky for us the two Houses, and those Pockets within whose Sway those two Houses remain, will do all the serious, and the sinecurely-sheltered and healthily-hedonistic, Workplace, Lifeplace, and Individual-Needs-&-Hows Planning, Budgeting, and Enforcement, that ever needs to be done, won’t they ?

    at least for the next four years, until “all in this together again” We The People once again bestir our well-rested-and-protected-democratic-bones in order to exercise, at one brief Timeslit-Sweep, our Sovereign-Peoples’-Vote-Scythe, which will put all the right politicians in Power, and ‘sack’ all the wrong ones,
    for another five years;

    and then another five years –

    You the Experts up there, please go ahead, ‘traditionally’ or ‘internally-closed-politically-professional-election-innovatively’, to “make the two Houses more democratic”;

    and we The People will remain down here, unseen, unheard, happily “eating cake” with our bodies, and picking our way through those “legal hurdles and complications” as our brain-food,

    and for those of us who can still sing, ever-contentedly pondering The Vicar of Bray’s wildly various but always‘ ‘loyal’ political commitments, ending :-

    The Illustrious House of Hannover,
    And Protestant succession,
    To these I lustily will swear,
    Whilst they can keep possession:
    For in my Faith, and Loyalty,
    I never once will faulter,
    But George, my lawful king shall be,
    Except the Times shou’d alter.

    2019Th19May11.jsdm.

  6. Gareth Howell
    20/05/2011 at 2:37 pm

    Any parliamentary lawyer knows that a new act frequently has knock on effects to others which have to be tidied up as well.

    Some of the previous parliament acts may cease to be relevant! Lord Norton has highlighted the one that may hve to be.

    I can see no reason for HofL only have amending powers, being any different from what it is now, democratic legitimacy or otherwise.

    All depends what the law… is!

    A 300 member house will have got enough to do in any event, without trying to claim they re primates.

    • maude elwes
      23/05/2011 at 2:47 pm

      How about a true democratic answer, like, a referendum on the matter of Lords and their election thereof? This would clear the air and be a sure way to please the voters.

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