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Clause 28: Expulsion and suspension of members of the House of Lords
177. Subsection (1) provides that the House may make Standing Orders under which the House may expel or suspend a member. Although the House of Commons has a power to expel or suspend a member, the consistent view of those who have considered the issue in relation to the House of Lords (for example, in the 1955-6 Report on The Powers of the House in Relation to the Attendance of its Members (HL 67), and the 2009 Report on the Powers of the House of Lords in respect of its Members (First Report 2009-10, HL 87)) is that the House of Lords has lost the power permanently to expel members when sitting in a legislative capacity. The 2009 Report also concluded that the House did have the power to suspend a member temporarily, but only within a lifetime of a Parliament. It had no power to suspend a member in such a way that a writ of summons could be withheld from a member at the beginning of a Parliament. The purpose of the clause is therefore to confer a power on the House to expel a member permanently and to impose a period of suspension which would remove entitlement to receive a writ of summons at the beginning of a Parliament.
178. Subsections (2) and (3) define an expulsion resolution and suspension resolution respectively. They make it clear that the resolution must contain a statement that the resolution is passed on the basis of the conduct of the peer in question.
179. Subsection (4) provides that a writ of summons issued to a person subject to a suspension resolution ceases to have effect for the period of the suspension. If a new Parliament is summoned and therefore a new writ would be issued during the course of the suspension, no writ is to be issued until the period of suspension is completed.
180. Subsection (8) provides that an expulsion or suspension resolution can contain provisions other than those mentioned in subsections (2) and (3).
Clause 29: Resignation from House of Lords
181. There is presently no mechanism by which a peer can resign from the House of Lords. The clause sets in place a mechanism for either an excepted hereditary peer or a life peer to resign from the House.
Clause 30: Disclaimer of peerage
182. Subsection (1) provides for a person who has resigned from the House of Lords, or who has been expelled or disqualified for membership, also to disclaim the peerage by virtue of which he or she had been a member of the House.
183. Subsections (2) to (5) set out the procedure which the peer must follow.
184. Subsection (6) provides that where an excepted hereditary peer disclaims, the peer (and his or her spouse or children) lose all rights, interest, titles, offices, privileges and precedence associated with the peerage (such as the title of Lady for the wife of a male peer or the title ‘Honourable’ for the children). It will also relieve the peer of all obligations and disabilities arising under it. The most significant effect of this latter provision is that the peer will cease to be disqualified by virtue of the peerage from voting at elections to the House of Commons and being, or being elected as, a member of that House.
185. Subsection (7) makes similar provision to subsection (6) in relation to a life peer who disclaims.
Clause 31: Supplementary provision
186. Subsection (1) provides that the proceedings of the House are not invalidated if a peer who is not a member has taken part in the proceedings. For example, if a peer concealed an overseas conviction that means he or she were not a member of the House, his or her participation in proceedings would not affect their validity.
187. Subsection (2) provides that the Bill does not apply to the Lords Spiritual. The Archbishops of Canterbury and York, the Bishops of London, Durham and Winchester and the 21 next most senior diocesan bishops in the Church of England are ex officio members of the House of Lords. They are not peers. They lose their seats as Lords Spiritual when they leave episcopal office. There are internal discipline mechanisms within the Church of England which apply in similar circumstances to the mechanisms provided for in the Bill concerning Lords Temporal. A Lord Spiritual adjudged to be unfit to hold episcopal office and deprived of that office will automatically lose his seat in the House of Lords.
SCHEDULE 3: CONDITIONS FOR REMOVAL OF MEMBERS OF THE HOUSE OF LORDS ETC
Part 1: Conditions for removal
Condition 1: serious criminal offence
188. Paragraph 1(1) sets out condition 1 for the purposes of clause 27. Condition 1 is met where a person has been convicted of a criminal offence committed after clause 1 comes into force, has been sentenced to be imprisoned or detained for the offence for more than a year or indefinitely, and is so imprisoned or detained, or would be if the person were not unlawfully at large.
189. Paragraph 1(2) provides that condition 1 is met when the person is first imprisoned or detained after conviction in pursuance of the sentence or order or would have been were the person not unlawfully at large.
Paragraphs 1(3) and (4) provide that the Bill applies regardless of whether the offence or the subsequent conviction, sentence or imprisonment have occurred in the United Kingdom or elsewhere.
Condition 2: bankruptcy restrictions orders etc
190. Paragraph 2 sets out the conditions under which a person is disqualified by reason of insolvency. These are where a person is subject to either a bankruptcy restrictions order or undertaking, in England and Wales, Scotland or Northern Ireland, or a debt relief restrictions order or undertaking in England and Wales.
Part 2: Supplementary provision for section 2(2)
Supplementary provision relating to expected hereditary peers
191. Paragraph 3 provides that if an excepted hereditary peer is removed from the House under the terms of clause 27 of the Bill, or resigns in accordance with clause 29, then he or she ceases to be excepted from the effect of the House of Lords Act 1999. A vacancy in the number of 90 excepted peers is not created. Instead, the number is reduced by one.
Supplementary provision relating to life peers
192. Paragraph 4(2) provides that where a life peer resigns from the House but does not choose to disclaim his or her peerage, that person ceases to be disqualified by virtue of that peerage from voting at elections to the House of Commons or being, or being elected as, a member of that House. The barrier on peers voting, standing or sitting is a common law one and it applies to the peerage, not to membership of the House. Therefore, unless it is removed, a peer outside the House will be unable either to take part in the deliberations of the House or to take part in elections to the House of Commons. An excepted hereditary peer who ceases to be an excepted hereditary peer through resignation from the House will cease to be disqualified by virtue of that peerage from voting at elections to the House of Commons, or being, or being elected as, a member of that House under the terms of the House of Lords Act 1999.
Representation of the People Act 1985
193. Paragraph 5 provides that where a peer who has resigned from or been permanently excluded from the House wishes to be included on the register of electors as an overseas elector, he may qualify to do so on the basis of previous registration as a local government elector. Ability to register as an overseas elector is otherwise dependent on previous inclusion on the register of parliamentary electors, to which a peer is not entitled.
194. Under paragraph 6 anyone who has previously been excluded from the House can have a new peerage conferred on them which will entitle them to sit and vote in the House. The fact of having been removed is not itself a reason for a lifetime bar, if the Appointments Commission concludes that the person is, by reason of the passage of time or for other reasons, a fit and proper person to sit in the House. Paragraph 6(4) makes provision for a hereditary peer who inherits the office of Earl Marshal or Lord Great Chamberlain. Under the terms of the 1999 Act, these hereditary office holders are entitled to membership of the House and the provisions on hereditary by-elections do not apply to them.
Part 3: Reversal of effect of Section 27(2)
Claims for reversal
195. Paragraph 7(1) provides that a peer who has been disqualified from the House on the grounds of conviction for a criminal offence can seek reinstatement to the House if the conviction is overturned or quashed, or the sentence is reduced so that the condition is no longer met.
196. Under paragraph 7(2) a peer who has been disqualified from the House on the grounds of insolvency can seek reinstatement to the House if the bankruptcy restrictions order or undertaking or the debt relief restrictions order or undertaking is annulled.
197. Paragraph 7(3) to (5) provide that it is for the Lord Chancellor to determine whether a claim for reversal is justified and sets out the procedure which must be followed in making that determination.
198. Paragraph 8 provides for the Lord Chancellor’s powers under this Part to be included in paragraph 4 of Schedule 7 to the Constitutional Reform Act 2005. This means that they can be transferred to another minister only with the agreement of Parliament.
Convictions outside the United Kingdom
199. Paragraph 9 provides that the House of Lords may resolve that an overseas conviction and sentence does not have the effect of disqualifying the peer.
PART 4: PUBLIC ORDER
Clause 32: Demonstrations etc in the vicinity of Parliament
200. Subsection (1) repeals sections 132 to 138 of the Serious Organised Crime and Police Act 2005 (“the 2005 Act”) which regulate demonstrations and the use of loudspeakers in a designated area around Parliament. Repeal of sections 132 to 138 of the 2005 Act means that it will no longer be a requirement to give notice of demonstrations in the designated area and there will no longer be an offence for such demonstrations to be held without the authorisation of the Metropolitan Police Commissioner. There will no longer be an offence under the 2005 Act for a person to use a loudspeaker in the designated area; the use of loudspeakers will continue to be governed by section 62 of the Control of Pollution Act 1974 and section 8 of the Noise and Statutory Nuisance Act 1993. Repeal of sections 132 to 138 of the 2005 Act also means that there will no longer be a designated area around Parliament as set out in the Serious Organised Crime and Police Act 2005 (Designated Area) Order 2005 (S.I. 2005/1537). Additionally, repeal will restore the applicability of section 14 of the Public Order Act 1986 (imposition of conditions on public assemblies) to a public assembly in the vicinity of Parliament.
201. Subsection (2) gives effect to Schedule 4 which inserts new powers on maintaining access to Parliament into Part 2 of the Public Order Act 1986 and makes other consequential amendments.
SCHEDULE 4: AMENDMENT TO PART 2 OF THE PUBLIC ORDER ACT 1986 ETC
202. Schedule 4 amends Part 2 of the Public Order Act 1986 which regulates public processions and assemblies. Paragraph 1 inserts, after section 14 of the Public Order Act 1986, a new section 14ZA which provides the police with discretionary powers to impose conditions to maintain access to and from the Palace of Westminster.
Section 14ZA: Access to and from the Palace of Westminster
203. New section 14ZA (1) applies to public processions which are wholly or partly within the area around Parliament or a public assembly which is held or intended to be held within that area.
204. Subsection (2) provides that the senior officer may give directions imposing conditions on those organising or taking part in a procession or assembly, if it is the officer’s reasonable opinion that such conditions are necessary for ensuring that the specified requirements are met in relation to maintaining access to and from the Palace of Westminster. Subsections (3) and (4) provide the Secretary of State with power to make an order specifying the requirements that must be met. These might include requirements as to the number or location of entrances to the Palace of Westminster which must be kept open, and to and from which there must always be an access route for pedestrians and vehicles through the area around Parliament. Subsection (6) provides that such orders would be subject to the negative resolution procedure.
205. Subsections (7) and (8) apply to section 14ZA the same limitations on the conditions that may be imposed on a public procession and a public assembly as exist in sections 12 (1) and 14 (1) of the Public Order Act 1986. Subsections (9) and (10) apply elements from sections 12 and 14 of the Public Order Act to section 14ZA. These include the definition of the senior police officer, the requirement for a direction given by a chief officer to be in writing and the offences and penalties for failing to comply with a condition imposed.
Section 14ZB: The area around Parliament
206. Paragraph 1 also inserts a new section 14ZB into the Public Order Act 1986. Subsection (1) of that new section provides for the area around Parliament to be specified in an order made by the Secretary of State. Subsection (3) states that no point in the area around Parliament may be more than 250 metres in a straight line from the point nearest to it in Parliament Square. Subsection (4) provides that the order made by statutory instrument will be subject to the negative resolution procedure.
Section 14ZC: Special provision if a House meeting outside Palace of Westminster
207. New section 14ZC mirrors the powers in new sections 14ZA and 14ZB in the event that either or both Houses of Parliament (including committees) are sitting or conducting meetings outside the Palace of Westminster which may happen should, for example, the Palace of Westminster undergo large-scale refurbishment.
208. Subsection (1) provides that the Secretary of State can, by order, specify a building situated outside the Palace of Westminster and specify an area, which can be no further than 250 metres from the specified building.
209. Subsection (3) makes it clear that the special provisions in new section 14ZC apply to public processions or public assemblies held wholly or partly within the specified area. Subsection (4) provides that a senior officer may give directions imposing on persons organising or taking part in a procession or assembly any conditions which in the officer’s reasonable opinion are necessary to ensure that specified requirements are met. Subsection (5) provides that the Secretary of State may, by order, specify the requirements that must be met in order to maintain access to and from the specified building in relation to a week during which the building is used or planned to be used by a House of Parliament. Subsection (7) provides that the requirements may include requirements as to the number or location of entrances to the specified building which must be kept open and to and from which there must be access routes for pedestrians and vehicles through the specified area. Subsection (9) provides that an order made by statutory instrument will be subject to the negative resolution procedure. Subsection (10) applies subsections (7) to (11) of new section 14ZA to new section 14ZC. This applies the various aspects of the Public Order Act regime to this new provision.
210. Paragraph 2 of Schedule 4 is a consequential amendment which removes the reference to section 137(1) of the Serious Organised Crime and Police Act 2005 (loudspeakers in designated area) from paragraph 1(1) of Schedule 2 to the Noise and Statutory Nuisance Act 1993. Paragraph 3 is a consequential amendment which removes the entries in the Table in section 175(3) of the Serious Organised Crime and Police Act 2005 relating to the penalties in section 136 of that Act. Section 175 contains transitional modifications to penalties for certain offences committed in England and Wales. Paragraph 4 makes a consequential amendment by omitting paragraph 64 of Schedule 6 to the Serious Crime Act 2007, which deals with penalties for inchoate offences committed in relation to offences under section 136 of the Serious Organised Crime and Police Act 2005. Paragraph 5 sets out a transitional provision which makes it clear that the new sections will apply to any public assemblies or processions which started or were being planned before the new sections 14ZA to 14ZC came into force.
PART 5: HUMAN RIGHTS ACTIONS AGAINST DEVOLVED ADMINISTRATIONS
Clause 33: Time limit for human rights actions against Northern Ireland Ministers etc
211. Subsection (1) inserts new sections 71(2D), (2E) and (2F) into the Northern Ireland Act 1998.
212. New section 71(2D)(a) and (b) set out a one year time limit for claims involving Convention rights against Northern Ireland Ministers and Departments. This time limit may be extended to such longer time as a court or tribunal considers necessary to achieve fairness, taking into account all the circumstances of the case. These provisions are subject to any other rule which imposes a stricter time limit in the proceedings in question. This is equivalent to section 7(5) of the Human Rights Act 1998.
213. New section 71(2E)(a) and (b) mean that the one year time limit does not apply to claims that secondary legislation made, approved or confirmed by the Northern Ireland Ministers is incompatible with Convention rights, and nor does it apply to proceedings brought by the Law Officers listed in section 71(2). This preserves the power of those officers to challenge the actions of the Northern Ireland Ministers or Departments if they believe they have acted incompatibly with the Convention rights.
214. New section 71(2F) applies the definition of “rule” as set out in the Human Rights Act 1998 where “rules” are able to establish time limits for bringing claims.
215. Subsection (2) applies the time limit as set out in new section 71(2D) to (2F) to all proceedings brought by claimants after this clause comes into force, whenever the act complained of took place.
Clause 34: Time limit for human rights actions against Welsh Ministers etc
216. Subsection (1) inserts new sections 81(3A), (3B) and (3C) into the Government of Wales Act 2006.
217. New section 81(3A)(a) and (b) set out a one year time limit for claims involving Convention rights against the Welsh Ministers. This time limit may be extended to such longer time as a court or tribunal considers necessary to achieve fairness, taking into account all the circumstances of the case. These provisions are subject to any other rule which imposes a stricter time limit in the proceedings in question. This is equivalent to section 7(5) of the Human Rights Act 1998. The time limit will also apply to any claims that maybe be brought under the Government of Wales Act 1998, despite its repeal (subsection (4)).
218. New section 81(3B)(a) and (b) mean that the one year time limit does not apply to claims that secondary legislation made, approved or confirmed by the Welsh Ministers is incompatible with Convention rights, and nor does it apply to proceedings brought by the Law Officers listed in section 81(3). This preserves the power of those officers to challenge the actions of the Welsh Ministers if they believe they have acted incompatibly with the Convention rights.
219. New section 81(3C) applies the definition of “rule” as set out in the Human Rights Act 1998 where “rules” are able to impose shorter time limits for bringing claims.
220. Subsection (3) amends section 81(5) of the Government of Wales Act 2006 to ensure that the reference to the Welsh Ministers in new section 81(3B) includes the First Minister for Wales and Counsel General to the Welsh Assembly Government.
221. Subsection (5) applies the time limit as set out in new section 81(3A) to (3C) (above) to all proceedings brought by claimants after this clause comes into force, whenever the act complained of took place.
PART 6: COURTS AND TRIBUNALS
Clause 35: Judicial appointments etc
222. Clause 35 gives effect to Schedule 5.
Clause 36: Salary protection for members of tribunals
223. Clause 36 provides that the salaries of certain tribunal office holders once determined may not be reduced. The purpose is to provide similar protection for these office holders as is already available to office holders in the courts.
224. The protection applies to those with salaries determined under the following provisions:
- Section 5(1)(a) to (c) of the Employment Tribunals Act 1996 (Presidents and Chairmen of Employment Tribunals);
- Paragraph 10(a) of Schedule 4 to the Nationality, Immigration and Asylum Act 2002 (Immigration Judges);
- The specified provisions in Schedules 1, 2, 3 and 4 to the Tribunals, Courts and Enforcement Act 2007 (Senior President of Tribunals; those serving on the First-Tier Tribunal and Upper Tribunal; and Chamber Presidents, Deputy Chamber Presidents and acting Chamber Presidents).
SCHEDULE 5: JUDICIAL APPOINTMENTS ETC
The Courts Act 1971 (c.23)- Section 21(5).
225. This corrects a typographical error in section 21(5) of the Courts Act 1971, which deals with the extension of the term of appointment of recorders. Section 21(5) refers to subsection (4) whereas it should refer to subsection (4A).
Paragraphs 2, 3, 4 and 9: Amendments to Part 3 of the Constitutional Reform Act 2005 - Sections 26, 29, 60 and Schedule 8
226. These provisions remove the Prime Minister from the appointment process of the President, Deputy President and judges of the Supreme Court. Paragraph 2 amends section 26 of the Constitutional Reform Act 2005 with the effect that, when presented with a candidate chosen by a Selection Commission, recommendations for appointment will now be made by the Lord Chancellor instead of the Prime Minister. Instead of notifying a selection to the Prime Minister, the Lord Chancellor is to make a recommendation for appointment.
227. Paragraphs 3, 4 and 9 make various consequential amendments to sections 29 and 60(5) of, and paragraphs 10, 13(2) and 14(2) of Schedule 8 to, the Constitutional Reform Act 2005.
Paragraphs 5 and 6: Amendments to Chapter 2 of Part 4 of the Constitutional Reform Act 2005 - Sections 96 and 97
228. Sections 96 and 97 of the Constitutional Reform Act 2005 provide for medical assessments of those who have been selected for appointments, to be conducted by the Judicial Appointments Commission. These amendments transfer the responsibility for medical assessments to the Lord Chancellor.
229. Paragraph 5 of the Schedule makes amendments to the provisions in section 96 of the Constitutional Reform Act 2005 relating to medical assessments. Sub-paragraph (3) adds new subsections (2A) and (2B) to section 96 to enable the Lord Chancellor to request a person who has been selected for appointment by the Judicial Appointments Commission (“the candidate”) to provide information about his or her physical or mental condition. The Lord Chancellor may specify a period in which the information has to be supplied.
230. Sub-paragraph (4) amends section 96(3). The amendment made to section 96(3) provides that the Lord Chancellor may also request a candidate to undergo a medical assessment and for a report of that assessment to be made available to the Lord Chancellor.
231. These provisions replace the existing section 96(3) under which the Lord Chancellor may direct the Judicial Appointments Commission to make arrangements for any assessment of the health of those who have been selected for appointment.
232. Sub-paragraph (5) modifies section 96(4) and Sub-paragraph (6) inserts new subsections (4A) and (4B). These provide that the Lord Chancellor may after consultation with the Lord Chief Justice notify the Judicial Appointments Commission that he is not proceeding with an appointment if the circumstances specified in the new subsection (4A) apply. These circumstances are if the candidate does not comply with a request to provide information under the new subsection (2B) or to undergo a medical assessment under subsection (3)(a); or if the Lord Chancellor is not satisfied on the basis of a medical report under subsection (3)(b) that it would be appropriate to proceed with the appointment. Selections can also be disregarded where the candidate does not accept an appointment when it is offered or is not available within a reasonable time to take up a post.
233. Sub-paragraph (7) amends section 96(5) to make it clear that if a candidate is rejected then any other selection for the same appointment or recommendation is to be disregarded; and the candidate must not be selected again pursuant to that request for the same appointment or recommendation.
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