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10 Constitutional conventions: case study Introduction In this chapter we look at how the UK constitution deals with conflict between

n the House of Commons and the House of Lords. Conflict between different 'chambers' of a legislature is not uncommon in many parliamentary and presidential constitutions and often arises when one chamber is dominated by one political party while the other is controlled by another. In the United tates, conflict between the House of !epresentatives and the enate has been bitter and has led to what many people see as paralysis in "overnment decision ma#in".

In the UK constitution, conflicts do not arise as a result of competin" democratic mandates.

The House of Commons retains all the democratic authority and $%s are very #een to stress how this "ives them a "reater le"itimacy than the unelected House of Lords. &onetheless' the House of Lords is re(uired to approve most )ills (apart from 'money Bills' see !ection ".#$ and therefore has the power to cause considerable problems for the "overnment and House of Commons.

*ne approach to resolvin" the issue of conflict between the two %ouses would ha&e been to create a written constitution in which the relationship between an elected %ouse of 'ords and the %ouse of (ommons would be clearly defined. Unfortunately' there has never been sufficient political consensus in the House of Commons and the House of Lords to achie&e this goal. Instead, conflicts have been resolved in favour of the House of Commons usin" two routes: a parliamentary convention and two statutes.

The alisbury+,ddison convention is used to allow the "overnment to force controversial )ills (which reflect the political intentions set out in the go&erning party's 'manifesto' in the last %ouse of (ommons election campaign$ through the crucial second reading stage in the %ouse of 'ords. The %arliament ,cts 1-11 and 1-.- allow the "overnment to enact )ills without the consent of the %ouse of 'ords in the e&ent of deadlock, pro&ided certain conditions are met.

10.1 /he alisbury+,ddison convention )*.).) +rigin %+' will not against what the changes made by go&t if those are promises in their manifesto The ori"in of this convention can be traced bac# to the election in 1-.0 of a ma1ority Labour "overnment at a time when there was a very small minority of Labour peers in the House of Lords. The Labour "overnment had made very clear in the election campai"n its intention to brin" about radical chan"es to )ritish "overnment and society. The big political ,uestion was- how would the Conservative+ dominated House of Lords react2

3iscount Cranborne (who later became the $ar(uess of alisbury$, following discussions with the Labour leader in the House of Lords' .iscount /ddison, responded on behalf of the Conservative opposition in the %ouse of 'ords as follows 0hate&er our personal &iews, we should fran#ly reco"nise that these proposals were put before the country at the recent 4eneral 5lection and the people of this country, with full knowledge of these proposals, returned the Labour %arty to power. The 4overnment may' therefore' I thin#' fairly claim that they have a mandate to introduce these proposals.

I belie&e it would be constitutionally wron"' when the country has so recently e1pressed its &iew, for this House to oppose proposals which have been definitely put before the electorate. 2ote that there was no promise not to oppose measures which were not set out clearly in the "overnin" party6s manifesto.

)*.).3 %ouse of 'ords /ct )444 5educe the hereditary peers Underlyin" what some Conservatives in 1-.0 mi"ht have seen as political timidity by 3iscount Cranborne, was a reco"nition that the House of Lords had no democratic le"itimacy whatsoe&er. *ne of the most ob1ectionable elements of its membership was the presence of hereditary peers (i.e. peers who were members simply because their fathers were before them$. The House of Lords ,ct 1--introduced a measure of reform to the House of Lords by limiting the number of hereditary peers to 4*. The radical concept of electin" members of the House of Lords was introduced for the first time, although the franchise for elections on the death of a hereditary peer was given only to the excluded ex-peers.

6e&elopment of con&ention own party minister assert that %+' had the power to re7ect The de&elopment of this con&ention was described in the 8oint (ommittee on (on&entions 5eport !ession 3**# *9. 7hy in 1--8 did Lord !ichard (uery whether the alisbury+ ,ddison doctrine was sufficient to "uide the House of Lords2 %e thought that the role of the House of Lords had chan"ed from bein" merely a 6revisin" chamber6. It was now the only part of the le"islature which could curb the e9ecutive. 2ote, 'ord !ichard was a Labour peer at a time when the Conservative %arty formed the "overnment in the %ouse of (ommons with an unassailable ma7ority :compare the ne9t assertion;

7hat in 1--- did )aroness <ay ar"ue that the convention provided for2 Can you see a political reason for the difference in her view from that of Lord !ichard in 1--82 !he argued that the convention did not relate to the stren"th of the parties in the two %ouses. Instead it related to the constitutional relationship between the two Houses and it remained 6constitutionally wron"6 for the House of Lords to re1ect proposals which had been 'definitely put before the electorate'. , #ey political difference from )44", when 'ord 5ichard was speaking, was that )aroness <ay was a minister in the new Labour "overnment which had a large ma7ority in the %ouse of (ommons. ,n assertive House of Lords now had the power to hinder her party6s pro"ramme of le"islation.

)*.)." The constitutional significance of a manifesto 6oubtful significant /lthough it sometimes seems that all politicians are always, to some e1tent, campaigning and seeking re election, the tradition of UK elections is to "ive particular si"nificance to a relatively short period before the "eneral election. /t the start of this period, all the political parties will set out their ideas and promises in documents called 6manifestos6. / great of thought and discussion goes into the drafting of these documents and it is perhaps a pity that so few members of the electorate actually read them before making their decision to &ote.

=ind the section of the 6easy read6 Conservative %arty manifesto headed 6Helpin" everyone do their bit6. How much did you learn about the Conservatives6 policies on plannin" law2 It stated 67e will help people in local areas come together to change things or ha&e more of a say...:or e1ample, people could get together to...make plans for their local area.' It seems doubtful that this statement would have carried much wei"ht with the House of Lords when considerin" the detail in %art > of the Localism ,ct ?010.

In the Liberal @emocrat manifesto in the section headed 6Aour life6' what was promised in relation to university fees2 6Unfair6 university fees were to be scrapped . :ollowing the formation of the coalition go&ernment, the Liberal @emocrats voted' with some e9ceptions, in favour of a lar"e increase in university fees. /his bro#en promise has caused ma1or political dama"e to the Liberal @emocrats.

10.1.. /he alisbury+,ddison convention and the coalition "overnment (on&ention changed (;$ when coalition go&t formed The convention was articulated after the )4<# general election, although a &ersion of it had been influential before that date. In )4<# the 'abour and (onser&ati&e parties completely dominated British politics both in the popular &ote and in the number of seats in the %ouse of (ommons. In such a bipolar political world' parliamentary conventions could be based around the assumption that there would always be one winnin" party in the House of Commons which would see# to implement its manifesto.

In 3*)*, of course, a coalition of two parties the Conservatives and Liberal @emocrats + too# power. &either was able to impose its complete manifesto on the "overnment and, instead, they based their le"islative pro"ramme on the coalition a"reement.

7hat does )aroness @6 ouBa identify as the three options for the convention under a coalition "overnment2 The !alisbury /ddison convention cannot and does not apply since no one voted for the coalition a"reement. The convention does not apply strictly but, since the electorate by its votes ensured a hun" %arliament and that therefore a coalition was more than likely, the a"reement for"ed between the two parties should count as a manifesto. The Lords should respect only those policies which were put forward in the manifestos of both the /ories and the Liberal @emocrats and are therefore similar.

7hy did Lord %annic#' accordin" to )aroness @6 ouBa' believe that a focus on the absence of a coalition manifesto was incorrect2 %e thought that this would be i"norin" political realities in the House of Commons. Conventions needed to be fle9ible.

10.? /he %arliament ,cts 1-11 and 1-. In )4)) conflict between a Conservative+dominated House of Lords and a radical Liberal "overnment came to a head following two general elections in which the electorate had supported the 'iberal =arty's promises of ma7or social reform. The =rime >inister, /s,uith, was in a strong political position and was able to get the =arliament /ct )4)) passed according to the normal procedures by the %ouse of (ommons and the %ouse of 'ords.

The %arliament ,ct 1-11 pro&ided for the following changes. The %ouse of 'ords lost most of its powers o&er 'money Bills'. The %ouse of 'ords could only delay other Bills for up to two years o&er three parliamentary sessions, after which they would pass into law without the appro&al of the %ouse of 'ords. The ma1imum life of a parliament was reduced to fi&e years. In 1-.- the political conflict was between the Labour "overnment' which was dominant in the House of Commons' and the Conservative+dominated House of Lords. The =arliament /ct )4)) was insufficient for the 'abour go&ernment to be able to force through contro&ersial legislation in the last two years of the =arliament. Using the procedures of the =arliament /ct )4)), s.3 of the =arliament /ct )4)) was amended as follows-

If any %ublic )ill Cother than a $oney )ill or a Bill containing any pro&ision to e1tend the ma9imum duration of %arliament beyond five years$ is passed by the House of Commons :in two successive sessions? (whether of the same =arliament or not$, and, havin" been sent up to the House of Lords at least one month before the end of the session, is re1ected by the House of Lords in each of those sessions, that )ill shall' on its re1ection :for the second time; by the House of Lords, unless the House of Commons direct to the contrary' be presented to His $a1esty and become an ,ct of %arliament on the !oyal ,ssent being signified thereto, notwithstandin" that the House of Lords have not consented to the Bill %rovided that this provision shall not ta#e effect unless @one year has elapsed? between the date of the second reading in the first of those sessions of the Bill in the %ouse of (ommons and the date on which it passes the %ouse

of (ommons @in the second of those sessions;. 10.?.1 /he Huntin" ,ct ?00. The /ct enacted is not delegated legislation e&en though it skip the %+'As appro&al The most recent use of the =arliament /cts came during the protracted debates o&er proposals to ban hunting with dogs in the %unting /ct 3**<. $any members of the House of Lords were bitterly opposed to the chan"es which were promoted by >=s who had strong popular support. It is' perhaps' not surprisin" that the final approval of the ,ct was followed by a le"al challen"e in <ac#son and others v ,+4 (3**#$. The most radical element of the le"al challen"e was the creative ar"ument that the %arliament ,ct

1-.- should be treated as dele"ated le"islation because it had not passed all the sta"es of parliamentary procedures. ,s dele"ated le"islation' it would be sub1ect to 1udicial review. The case e&entually reached the (ourt of /ppeal and then the %ouse of 'ords, where the importance of the matters discussed was reflected in the fact that nine 'aw 'ords heard the case. /he House of Lords re1ected the appeal and confirmed the validity of the Huntin" ,ct ?00.' as well as the %arliament ,ct 1-.-.

/cTi&iTy !ead the speech of Lord )in"ham in <ac#son and others v ,+4 C?000D and answer the followin" (uestions. 7hat were the words of enactment of the Huntin" ,ct ?00.2 Be it enacted by The Bueen's most C1cellent >a7esty, by and with the ad&ice and consent of the (ommons in this present =arliament assembled, in accordance with the pro&isions of the =arliament /cts )4)) and )4<4, and by the authority of the same, as follows...

7hat were the five 6propositions6 of the appellants2 'egislation made under the )4)) /ct is delegated or subordinate, not primary. The legislati&e power conferred by s.3()$ of the )4)) /ct is not unlimited in scope and must be read according to established principles of statutory interpretation. /mong these is the principle that powers conferred on a body by an enabling /ct may not be enlarged or modified by that body unless there are e1press words authorising such enlargement or modification.

/ccordingly, s.3()$ of the )4)) /ct does not authorise the (ommons to remo&e, attenuate or modify in any respect any of the conditions on which its lawDmaking power is granted. C&en if, contrary to the appellants' case, the (ourt of /ppeal was right to regard s.3()$ of the )4)) /ct as wide enough to authorise 'modest' amendments of the (ommons' law making powers, the amendments in the )4<4 /ct were not 'modest', but substantial and significant

7hy did Lord )in"ham not accept that le"islation passed usin" the procedure laid down in the %arliament ,ct 1-11 was dele"ated le"islation2 The meanin" of 6shall become an ,ct of %arliament6 in s.)()$ and s.3()$ was unambi"uous and could only denote primary le"islation. / new method of creatin" ,cts of %arliament had been approved.

7hy did Lord )in"ham refer to ir Henry Campbell+)annerman6s resolution in 1-0E2 Lord )in"ham used the resolution as a clear indication of %arliament6s intention. Ei&en that a literal interpretation of the words of the =arliament /ct )4)) was clear, there was no need to resort to an e1amination of %ansard under Pepper & Hart ()44"$.

7hy did Lord )in"ham refer to the 5uropean Convention on Human !i"hts C5CH!D when he discussed whether the %arliament ,cts could be used to e9tend the ma9imum period of parliaments beyond five years2 ,rticle 8 of the :irst =rotocol of the C(%5 provides that elections must be held at re"ular intervals.

In his conclusion' Lord )in"ham compared the sub1ect matter of the ,cts passed under the %arliament ,ct 1-11 and %arliament ,ct 1-.-. 7hat difference did he note and why do you thin# this is the case2 %e highlighted the fact that the ,cts enacted under the 1-11 ,ct were of ma1or constitutional importance whilst those enacted under the 1-.- ,ct were of minor or no constitutional si"nificance. The reason for this difference is perhaps the fact that the use of the %arliament ,cts is a last resort for a "overnment which, for one reason or another, is see#in" to chan"e the law in a way in which the ma1ority of the House of Lords is adamantly opposed to.

0hilst opposition to 6Home !ule6 Cone step short of full independence for the island of IrelandD bein" proposed in the 4overnment of Ireland ,ct 1-1. mi"ht seem, to most students, to be on a completely different scale of constitutional importance to the prohibition of the ri"ht to pursue small fo9es across the 5n"lish countryside on horseback accompanied by baying hounds (%unting /ct 3**<$, the key point is that to the members of the %ouse of 'ords both issues were sufficiently important to compel them to defy the wishes of the "overnment and House of Commons. Ireland ,ct is more constitutional importance than Huntin" ,ct

10.8

ummary

The alisbury+,ddison convention, which was articulated after the )4<# general election, pro&ides that the House of Lords should not oppose proposals which have clearly been put to the electorate in the pre&ious general election. The key document referred to in relation to the convention is the 6manifesto6 of the party which formed the "overnment. The creation of the coalition "overnment comprising the (onser&ati&es and 'iberal 6emocrats in 3*)* has cast doubt on the continued e9istence of the convention, although some politicians and commentators ha&e argued that the coalition agreement should now take on the constitutional significance of the winning party's manifesto.

The %arliament ,ct 1-11 removed most of the powers of the House of Lords in relation to 'money Bills' and limited the period during which it could delay other Bills to two years o&er three parliamentary sessions. The ma1imum period of a =arliament was reduced to fi&e years. The %arliament ,ct 1-.amended the %arliament ,ct 1-11' reducin" the ma9imum period of delay to one year over two parliamentary sessions.

In <ac#son and others v ,+4 (3**#$, the &alidity of the %unting /ct 3**< was challenged. ,s this ,ct had been passed under the %arliament ,ct 1-.-' the appellants argued that the )4<4 /ct was, in reality, delegated legislation. /he appeal was re1ected by the House of Lords which held that the 1-11 ,ct had created a new means of enactin" primary le"islation.