House of Lords: Reform

Lord Morris of Aberavon Excerpts

Tuesday 21st June 2011 Lords Chamber

[Lord Morris of Aberavon]

My Lords, although I have never spoken before in a debate on the reform of this House—I nearly refrained from doing so now—I do not intend to make any general remarks, save to say that, like many others, my approach is twofold: first, a fundamental respect for the need to ensure that the primacy of the elected House is not undermined; and, secondly, to express the view that, whatever changes may take place in this House, the way it exercises its powers will change considerably.

I wish to speak on one issue alone: the possibility of the Parliament Acts 1911 and 1949 being used to ensure the passing of the draft Bill. As I understand it, the attitude of the coalition Government is to point a pistol at our heads by threatening the use of the Parliament Acts. The coalition approach may sound strange to the Conservative part of the coalition, which knows the historical Conservative stance towards the Parliament Acts. Duress has never been the best way of achieving constitutional changes.

If the proposed Bill is to be rammed through regardless, this House and, in particular, the Joint Committee must have the best legal advice on the problems of applying the Parliament Acts. What, if any, are the limitations on their use? I recommend the study of the judgments in both the Court of Appeal and the Appellate Committee of this House in the, by now, famous fox hunting case of Jackson v Attorney-General 2006. I shall refer briefly to the learned judgments in that unusual constitutional case of considerable importance to our present deliberations. The 14 judges in the three courts who considered the issues had differences of view. More than one judge expressed reservations about whether there were limits to the supremacy of Parliament—in this context, the supremacy of the House of Commons.

Last week, I placed a Motion on the Order Paper, inviting the House to instruct the Clerk of the Parliaments to seek the advice of the Attorney-General on whether a Bill which provided for the change in the composition of this House, where the provisions of the Parliament Acts had been complied with, is capable of having legal effect. I invite the Joint Committee to take the same course.

There are sound precedents for seeking, from time to time, the Attorney-General's and others’ advice, as I know from my own experience. Only a believer in a flat earth would opine that this matter could, and probably would, not go before the courts. I trust that the Government will build this into their timetable. Is such an issue justiciable? That clearly was the view of the Appellate Committee in the case of Jackson and, in the words of the late and learned Lord Bingham, such consideration,

“involves no breach of constitutional propriety”.

The reform proposals go to the heart of membership of this House as we know it. It is arguable that they are tantamount to abolishing it, at least in its present form—with or without changes in name and title. I invite the Joint Committee to consider at its earliest opportunity the Bill’s title, “House of Lords Reform Bill”, which should reflect its contents. Would it not be better and more appropriate to call it something like “Abolition of the House of Lords in its Present Form Bill”?

The possible limitations on the use of the Parliament Act were considered in the Jackson case. Reservations were expressed by a number of judges. The noble and learned Lord, Lord Hope, put it succinctly when he said that it was sufficient to note,

“that a conclusion that there are no legal limits to what can be done under section 2(1)”,

of the Act,

“does not mean that the power to legislate which it contains is without any limits whatever”.

The noble and learned Lord, Lord Steyn, went further when he said that he was deeply troubled by,

“an exorbitant assertion of government power in our bi-cameral system”.

Having conceded that the Attorney-General might be right in his arguments, he went on to say:

“It may be that such an issue would test the relative merits of strict legalism and constitutional legal principle in the courts at the most fundamental level”.

The noble and learned Lord, Lord Hope, and other Law Lords instanced some fundamental subjects that might not be amenable to change under the Act, such as the Act of Union with Scotland—which the noble and learned Lord, Lord Hope, mentioned—judicial review and access to the courts by citizens. The noble and learned Lords, Lord Rodger of Earlsferry, Lord Carswell and Lord Brown of Eaton-under-Heywood, all expressed their concerns in different words. The noble and learned Lord, Lord Carswell, said that he was inclined “very tentatively” to the view that the instinct of the Court of Appeal might be right and that,

“there may be a limit somewhere to the powers contained in section 2(1) … though the boundaries appear extremely difficult to define”.

The weight of opinion, despite the expressed reservations and concerns, may well lead towards recognising a considerable supremacy for Parliament. The supremacy of Parliament, as the noble and learned Lord, Lord Steyn, said, is a construct of the common law. The issue may be whether there are exceptional circumstances that are so fundamental that even a sovereign Parliament cannot act. The noble and learned Lord, Lord Hope, added that,

“the courts have a part to play in defining the limits of Parliament’s legislative sovereignty”.

Whether Parliament would wish to have such an issue before the courts is questionable. Unless the Government withdraw that threat, it is a possibility that we cannot ignore.