House of Lords - Constitution

Select Committee on Constitution Seventh Report

APPENDIX 1: THE PARLIAMENT ACTS, BY PROFESSOR RODNEY BRAZIER

1. This paper is my response to the Committee's request for an analysis, based on existing materials, of the genesis, main provisions, and use of the Parliament Acts. The Committee wished the paper to embrace any conventions or practices governing the use of the Acts, any legal limits on what may be done under them, and recent proposals for reform of the Acts. The Committee wanted the arguments about the validity of the Parliament Act 1949 to be touched on. The Committee did not want a heavily-referenced paper.

The origins of the Acts[6]

2. Until 1911 the two Houses had equal legislative power. Legislation could only pass if it was approved by each House. The Lords' veto over the legislative wishes of the increasingly more representative Commons remained in place. If the House of Lords declined to pass any bill approved by the House of Commons, and in the absence of compromise or of one House backing down, there was only one constitutional mechanism available to overcome the Lords' resistance. This was for the Sovereign to be advised to create enough new peers to give the Government a majority in the upper House. Such advice was indeed last tendered in 1832, when King William IV was advised to create peers in order to secure the passage of the Great Reform Bill. The House of Lords gave way and allowed the bill to pass, thus making such creations unnecessary. That general position of co-equal authority had been qualified in one respect before 1911 by non-legal rules. By constitutional convention, and according to the privileges claimed by the Commons since the seventeenth century, bills dealing with taxation or expenditure could not be amended by the Lords, although peers claimed the right to reject such bills outright.

3. But that constitutional settlement was to be thrown over in the early years of the twentieth century. The House of Lords remained hereditary and permanently controlled by the Conservative Party. Yet the House of Commons had been made more representative of the electorate through extensions of the franchise. And in 1906 the Liberals won a landslide General Election victory on a programme which promised major social legislation, much of which was anathema to most peers. The House of Lords rejected some of the Liberal Government's reform bills, and in 1909, in its greatest act of defiance, the Lords rejected the Finance Bill which embodied Lloyd George's "People's Budget". In response the House of Commons passed a resolution which condemned that action as "...a breach of the Constitution and a usurpation of the rights of the Commons..." The Liberals won a General Election in January 1910, and as a result the House of Lords most reluctantly passed the Finance Bill. Asquith's Government had decided to settle the more general point about the relative legislative powers of the two Houses by changing the law, but could only persuade the House of Lords to accept the resulting Parliament Bill after a second General Election in 1910 (which the Government again won) and the subsequent publication of a guarantee from King George V that, if necessary, he would create enough Liberal peers to overcome the resistance of the House of Lords to the bill. Faced with the choice of the loss of its daily control of the upper House, or a reduction in its legislative powers, peers opted for the trimming of its power as the lesser of two evils. The Parliament Act 1911—passed, it should be noted, by both Houses before receiving Royal Assent—was the outcome of that long constitutional crisis.

4. The Parliament Act 1911 made no attempt to change the composition of the House of Lords, although the preamble stated the intention "to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of a hereditary basis," but added (rather plaintively) that "such substitution cannot be immediately brought into operation." The 1911 Act changed the law in three main respects. It stripped the House of Lords of most of its power over money bills. It changed the absolute veto enjoyed by that House over most bills into a power to delay the passage of such bills for up to two years, spread over three parliamentary sessions, after which they would pass into law without the approval of the House of Lords. And the maximum life of Parliament was reduced from seven years to five.

5. No further statutory changes were made to the House of Lords for almost four decades after 1911. The Parliament Act was used soon after its enactment to override peers' opposition to the disestablishment of the Church of Wales and to home rule for Ireland, the statutory results being the Welsh Church Act 1914 and the Government of Ireland Act 1914. But the election of another radical administration with a large Commons majority in 1945—the first since 1906—was to expose a hidden strength for peers in the 1911 Act. The ability of the House of Lords to delay a bill for two years effectively gave that House a veto over Government legislation in the penultimate and final years of a five-year Parliament. A Government would have to pass contentious legislation through the Commons by the end of Parliament's third year to ensure that the 1911 Act could be used, if necessary, to secure its enactment. No Government with a major programme of controversial bills could operate within a three-year parliamentary cycle, and indeed the Labour Government wished to bring forward iron and steel nationalisation later in the 1945 Parliament. A Parliament Bill was introduced late in 1947 and was passed by the House of Commons, designed to reduce the permitted Lords' delay to one year spread over two sessions. All-party talks on reform were initiated, but failed. The House of Lords then rejected the Parliament Bill by a large majority. After it had again been passed by the House of Commons and rejected by the House of Lords in the following two sessions the bill was presented for Royal Assent under the provisions of the 1911 Parliament Act.

6. The Parliament Act 1949 itself was not to be relied on until, ironically, a Conservative Government was to use it to secure the passage of the War Crimes Act 1991. Subsequently the 1949 Act was to be used by the present Government to secure the enactment of the European Parliamentary Elections Act 1999, the Sexual Offences (Amendment) Act 2000, and the Hunting Act 2004.

The law under the Acts[7]

INTRODUCTION

7. It is convenient to analyse the law in the Parliament Acts by looking at the position of the two Houses in relation to three types of legislation, and by concentrating on the powers of the House of Lords over them. In doing so it can be seen that the Parliament Acts give the House of Lords different powers in relation to those three groups, which may be labelled the House of Lords' veto powers, money bill powers, and delaying powers. For the moment the legal argument that the Parliament Act 1949 is invalid will be left aside.

VETO POWERS

8. The first group of powers consists of a ragbag in which are retained the pre-1911 prerogatives of the Lords. They concern five types of legislation.

9. First, the House of Lords still has a veto over any bill which is introduced into Parliament in the House of Lords. This is simply because the Parliament Act 1911 can only come into operation in relation to a bill "...passed by the House of Commons..."(1911 Act, sections 1(1), 2(1)). Only if the House of Commons has first put its representative authority behind a measure can the rules in the 1911 Act come into play. Government business managers have to bear this point in mind when planning the route for legislation. Secondly, the consent of the House of Lords remains necessary for any bill to extend the maximum life of Parliament beyond the five years substituted in the Septennial Act 1715 by the Parliament Act 1911 (section 7). That veto is expressly retained by the 1911 Act (section 2(1)). The ability of the House of Lords to ensure that General Elections take place at least every five years is of great theoretical importance, but of course no occasion has arisen in which its use has had to be contemplated: the extension of Parliament's life in the two world wars was done with all-party agreement. Thirdly, the House of Lords still has a veto over a provisional order confirmation bill. This is an express reservation in the 1911 Act (section 5): such a bill is excluded from the expression "public bill" as used in that Act. It was never likely that such a bill would cause conflict between the two Houses. Indeed, Asquith's Government never intended provisional order confirmation bills to be included in the Parliament Act procedure, and caused what became section 5 of the 1911 Act to be added because opinion was divided over whether such bills are or private in nature. Fourthly, the consent of the Lords is still needed for a local and personal bill, simply because the 1911 Act refers only to bills (1911 Act, sections 1(2), 2(1), 5). Once again, such bills would not be politically divisive. Finally, the House of Lords possesses still a veto over subordinate legislation, again because the Parliament Act 1911 refers, and can only apply, to public bills Such a veto has only been used three times—in 1968 (to reject the Southern Rhodesia (United Nations Sanctions) Order, and twice in 2000 (to reject subordinate legislation relating to the Greater London Authority)—and in each case the legislation was passed by the Lords at the second time of asking.

MONEY BILLS

10. It was over money bills that the most drastic curtailing of the Lords' powers was effected by the Parliament Act 1911—understandably so, given that it was the rejection of a Finance bill which provoked the original crisis. In essence, the most that the House of Lords can do to a money bill to which it objects is to delay its passage for a month, after which it will be presented for Royal Assent despite the failure of the House of Lords to pass it.

11. The Parliament Act 1911 provides (section 1(1)) that if a money bill, having been passed by the Commons, is sent to the Lords at least one month before the end of a session, and it is not passed by the Lords without amendment within one month after it is sent up, the bill shall (unless the Commons directs to the contrary) be presented for Royal Assent. The House of Lords may amend a money bill, provided it is passed within one month, but the Commons is not obliged to consider such amendments. The statutory definition of a money bill is closely drawn in the 1911 Act (section 1(2), as amended by the National Loans Act 1968, section 1(5)). Indeed, most annual Finance bills are outside that definition. In summary, a money bill is one which relates only to the following central government matters: taxation; the imposition of charges on the Consolidated Fund, the National Loans Fund, or on money provided by Parliament; supply; the appropriation of money, or loans. A bill which includes any other matters will not be a money bill. It is for the Speaker of the House of Commons to decide whether in his or her opinion a bill contains only money bill provisions, and if that is the Speaker's opinion there shall be endorsed on the bill a certificate signed by the Speaker that it is a money bill. Before giving such a certificate the Speaker must consult, if practicable, two members of the Chairman's Panel (section 1(3)). Such a certificate shall be conclusive for all purposes, and shall not be questioned in any court of law (section 3).

DELAYING POWERS

12. The original Parliament Act is nearly a hundred years old. Section 2, which governs the delaying powers, is the most important in practice. Two of its subsections (sections 2(1), (4)) each consists of a single sentence, one of 180 words, and the other of 248 words. The language of section 2 is, unsurprisingly, not exactly pellucid. It is possible to extract from section 2 (as amended by the 1949 Act) six basic rules. These permit the House of Lords to delay the passage of a bill, but also ensure that the will of the House of Commons will prevail in the end. The term "public bill" embraces any bill, whether a government or private Member's bill, but with the exceptions already noted.

13. First, if the Commons passes a public bill (other than a money bill or one to extend the life of Parliament) in two successive sessions (whether of the same Parliament or not), and the House of Lords rejects it in both of them, then on that second rejection the bill shall be presented for Royal Assent (1911 Act, section 2(1), as amended by the 1949 Act). A bill is deemed to be rejected if it is not passed by the Lords either without amendment or with such amendments only as may be agreed to by both Houses (section 2(3)). Rejection can therefore result from the Lords declining to give it a second reading (as with the European Parliamentary Elections Bill 1998-1999), or by adding an amendment delaying the second reading by six months (as with the War Crimes Bill 1990-1991), or by amending the bill adversely to the wishes of the Commons and so delaying its passage that the end of the session is imminent (as with the Hunting Bill 2003-2004).

14. Secondly, such a bill must be sent up to the Lords at least one month before the end of each of those sessions (section 2(1)).

15. Thirdly, one year must elapse between the date of the Commons second reading of the bill in the first session and the date on which it passes the Commons in the second session (section 2(1)). That delay is designed to give the Government and Commons time to think again about the measure, but also to provide for a maximum period of enforced delay. Taking the second and third rules together, the House of Lords is able to delay a bill into the subsequent session and until not less than thirteen months have elapsed from the date of the second reading in the Commons in the first session. That period results from the requirement that one year must elapse, and that a bill must be sent to the Lords at least one month before the end of the second session. The thirteenth month must elapse before the bill can go for Royal Assent to guarantee that one month does, indeed, pass before the session ends.[8]

16. Fourthly, the bills rejected by the Lords must be identical, or contain only such alterations as are certified by the Speaker to be necessary owing to the time which has elapsed since the date of the first bill, or to represent any amendments made by the Lords in the preceding session. Any amendments so certified and accepted by the Commons shall be inserted in the bill as presented for Royal Assent (section 2(4)). Thus the bill sent to the Lords in the second session must be identical to the bill which was sent to the Lords in the first session, not as initially presented in the Commons.

17. Fifthly, when such a bill is presented for Royal Assent there must be endorsed on it a certificate signed by the Speaker confirming that the provisions of section 2 of the 1911 Act have been duly complied with (section 2(2)). Such a certificate shall be conclusive for all purposes, and shall not be questioned in any court of law (section 3). That provision is designed to prevent any challenge to the validity of an Act passed under the Parliament Acts on grounds of procedural defects. It is clear that if the provisions of the Acts have been complied with the Speaker has no option but to give the certificate.

18. Finally, the Commons may, on the passage of such a bill in the second session, suggest further amendments without inserting them in the bill itself. The Lords must consider them and, if they are accepted, they may be treated as amendments made by the Lords and agreed to by the Commons. That procedure will not affect the operation of the Parliament Acts if the bill is rejected by the Lords (section 2(4)). The procedure was used, for example, over what became the Hunting Act 2004.[9]

WORDS OF ENACTMENT

19. A bill which is presented for Royal Assent under the Parliament Acts bears special words of enactment (1911 Act, section 4(1) as amended by the 1949 Act). Any alteration of a bill to give effect to those words of enactment does not constitute an amendment to the bill (section 4(2)).

PRESERVATION OF THE RIGHTS OF THE COMMONS

20. The 1911 Act makes it clear that nothing in that Act diminishes or qualifies the existing rights and privileges of the House of Commons (section 6).

Invoking the Acts[10]

21. It is often said that it is the Government that invokes the Parliament Acts against a recalcitrant House of Lords. That is true in the sense that the Government largely controls the organisation of business in the House of Commons and can, therefore, reintroduce in that House any bill which has been rejected by the House of Lords in the previous session. The Government can be said to set in motion a train of events which, if certified by the Speaker as completed, can cause a disputed bill to receive Royal Assent under the Parliament Acts.

22. The Parliament Act 1911 was relied on twice while Asquith's Government was in power, in order to secure the enactment of the Welsh Church Act 1914 and the Government of Ireland Act 1914. The 1911 Act was used only once under the 1945 Labour Government, to amend that Act itself through the passage of the Parliament Act 1949. The House of Lords otherwise avoided legislative deadlock with Attlee's Government by the self-denying ordinance known since as the Salisbury convention, under which any bill which had appeared in a Government's election manifesto would be accepted in the end because it could be taken to have the approval of the people.[11] The 1964 and the 1974 Labour Governments faced a more assertive House of Lords, but no legislation was actually presented for Royal Assent under the Parliament Acts during those Administrations.

23. The assumption that the Parliament Acts would be used only by Liberal or Labour Governments against a Conservative-dominated House of Lords was displaced in 1990 when the Lords rejected the War Crimes Bill on second reading. The bill sought to authorise retrospectively the prosecution in Britain of alleged war crimes committed in Germany or in German-occupied territory during the Second World War by persons who had subsequently become British citizens. The bill had been carried in the Commons on a free vote. The Lords rejected it again during the following session by adding an amendment delaying second reading by six months, and the Parliament Acts were used to pass it as the War Crimes Act 1991. The measure had not featured in the Conservatives' manifesto at the 1987 General Election.

24. The present Government has relied on the Parliament Acts three times. The European Parliamentary Elections Bill provided for a closed party list system for such elections. The bill passed the Commons in 1998, but Conservatives in both Houses preferred an open list system, arguing that there had been no manifesto commitment to a closed system, and the House of Lords insisted on amendments to insert their preferred method. After the Commons had disagreed with the Lords amendments four times the Government reintroduced the bill in the following session and it passed under the Parliament Acts, receiving Royal Assent in 1999. The Sexual Offences (Amendment) Bill, designed inter alia to equalise the age of consent for homosexual and heterosexual acts, was introduced into the Commons late in 1998. No such measure had featured in the Labour Party's manifesto: it was a response to a ruling by the European Court of Human Rights. The bill passed that House on a free vote; it was rejected in the Lords, also on a free vote, on a motion delaying a second reading for six months. The bill was reintroduced in and passed the Commons in the following session, incorporating, as permitted, certain amendments which had been added to the original bill in the Commons. The Lords added further amendments unacceptable to the Government, and it became clear that the House of Lords would not pass the bill in that session. The bill was presented for Royal Assent under the Parliament Acts as the Sexual Offences (Amendment) Act 2000. Finally, the Hunting Act 2004 received Royal Assent under the Acts just before the prorogation of Parliament in 2004. The Hunting Bill 2002-2003 had received its second reading in the House of Commons on a free vote in December 2002, as had been promised by the Government in its manifesto. The bill completed all its Commons stages in July 2003, providing for a ban on the hunting of wild mammals with dogs, and was sent to the Lords. The bill was still in Committee of the Whole House at the end of that session, so that it fell and was accordingly rejected for Parliament Act purposes. An identical bill was introduced in the 2003-2004 session, and again passed the Commons on a free vote. It was sent to the Lords in September 2004 along with suggested amendments (on which see above, para. 18). Agreement between the two Houses proved impossible during the customary game of "ping-pong", and just before prorogation in November 2004 the Speaker certified that the provisions of the Parliament Acts had been satisfied and the Hunting Bill received Royal Assent.

Principles guiding the use of the Acts

25. When a Government threatens that the Parliament Acts will be invoked the Opposition usually claims that it would be inappropriate—sometimes even unconstitutional—to do so in the particular case. Are there any principles which help to justify the use of the legal powers contained in the Parliament Acts?

26. The 1911 Act itself gives very little guidance as to its appropriate use. The long title merely says that it is "An Act to make provision with respect to the powers of the House of Lords in relation to those of the House of Commons, and to limit the duration of Parliament." The preamble recites that "...it is expedient that provision should be made for regulating the relations between the two Houses of Parliament...", and that "...it is expedient to make provision...for restricting the existing powers of the House of Lords." The Act is thus presented as a regulatory mechanism between the powers of the two Houses, while reducing the then existing powers of the House of Lords.

27. All seven statutes that have been passed under the 1911 Act can be said to be constitutional in character, or at least to have constitutional aspects to them. But the word "constitutional" is very elastic in the British context, and this observation is of limited helpfulness. In any event, the Welsh Church Act 1914, the Government of Ireland Act 1914, the Parliament Act 1949, and the European Parliamentary Elections Act 1999 are all clearly constitutional. By stretching the word to include any measure which concerns human rights—as many public bills will—then the War Crimes Act 1991, the Sexual Offences (Amendment) Act 2000, and the Hunting Act 2004 could all be covered by the word. The case for so characterising the Hunting Act includes, for example, the argument that it affects the right of enjoyment of property, protected by Article 1 of the First Protocol to the European Convention on Human Rights. It is possible, of course, that a court will hold that the Act does not breach that right. The use of the Parliament Acts was threatened over the Temperance (Scotland) Bill 1913, the Trade Union and Labour Relations (Amendment) Bill 1975-1976, and the Aircraft and Shipbuilding Industries Bill 1976-1977. It could be argued, in the same very broad sense, that they were constitutional in nature. At best it might be deduced that the use of the Parliament Acts is easier to justify, as a matter of precedent, if a disputed bill can be included in a wide definition of the constitutional.

28. Clearly, a Government wishing to get its legislation under the Parliament Acts if necessary will have a stronger hand politically and perhaps morally if that legislation had been foreshadowed in its General Election manifesto. But the precedents do not establish manifesto authority as a necessary prerequisite for the use of the Parliament Acts. Manifestos in their modern form were only issued at the 1922 General Election and at subsequent elections. Asquith had, however, clearly foreshadowed the Parliament Bill in both of his personal election addresses in 1910 (but there was no such mention for Welsh Church disestablishment or Irish home rule). Labour's 1945 manifesto spoke only in general terms of not tolerating "obstruction of the people's will by the House of Lords," which is a mention of sorts for a Parliament Bill. The War Crimes Bill was not in the Conservatives' manifesto in 1987, and the Sexual Offences (Amendment) Bill did not feature in Labour's 1997 manifesto. While reference to a bill to ban fox-hunting was made in Labour's 2001 manifesto, the only commitment was to enable Parliament to reach a conclusion about it on a free vote. There is, therefore, no constitutional convention or consistent practice to the effect that the approval of the electorate must be obtained for a measure before the Parliament Acts can be invoked.

29. Nor can it be said that on the basis of past practice a bill may be carried aptly without the Lords' consent only if it is one to which the Government formally shows its commitment by making it part of the Government's programme. Free votes were held on the War Crimes Act, the Sexual Offences (Amendment) Act, and the Hunting Act, although it was understood that the Government wished those measures to pass.

30. Governments do not accept that there are limitations on the kind of legislation which may properly be passed under the Parliament Acts. Ministers have tended to rely on the simple point that if there is a legislative disagreement between the two Houses and if no compromise is possible, then the wishes of the elected House must prevail in the end.[12] Ministers may play down any suggestion of constitutional crisis, and characterise the Parliament Acts as a means of resolving legislative deadlocks.[13] Given what the Parliament Act 1911 says about itself in its long title and preamble, that is a perfectly sustainable position to take. Perhaps the fact that so few Acts have reached the statute book by the use of the Parliament Acts shows that compromises are reached, that Governments have been slow to rely on those statutes, and that the House of Lords sees little point in fighting in the last ditch all legislation with which it profoundly disagrees when the Commons can gets its way in any case.

31. In summary, the statutes passed under the Parliament Acts can (not very helpfully) all be characterised as being constitutional, making the passage of such legislation easier to justify in future under the Parliament Acts because to do so would be in line with broad precedent. But there is no acceptance that only constitutional bills can be subject to those Acts. The Parliament Acts regulate the relations between the two Houses, and it will usually be a matter for political argument whether it is apt that those Acts should be relied on in a particular case. There are, therefore, no constitutional conventions or practices which guide the use of the Parliament Acts.

The validity of the Parliament Act 1949

32. A full examination of whether the Parliament Act 1949 is a valid statute will be conducted by the courts as part of the current legal actions being brought by the Countryside Alliance. The Committee only sought a sketch of the arguments in this paper.

33. There is no doubt that the Parliament Act 1911 is a valid statute. It was passed by both Houses and received Royal Assent. But some constitutional lawyers have doubted the validity of the 1949 Act, and Lord Donaldson of Lymington has twice introduced a bill designed among other things to settle such doubts. Other constitutional lawyers (including me) are satisfied that the Parliament Act 1949 is, indeed, valid.[14] The issue can only be resolved by litigation or legislation.

34. The validity of the 1949 Act was first doubted by Professor H.W.R. (later Sir William) Wade in 1955, and subsequent support was given by Professors Hood Phillips and Graham Zellick. The gist of the objection to the Act is as follows:

(i) When enacting legislation under the 1911 Act the House of Commons and the Sovereign act as delegates of the Queen (or King) in Parliament—that is, as delegates of the Commons, Lords, and the Sovereign. Legislation passed under the 1911 Act is therefore delegated legislation;

(ii) There is a general legal principle that a delegate cannot enlarge his own power: that can only be done by the delegating authority itself;

(iii) But the Commons and the Crown, although only delegates, purported to enlarge their own authority in 1949. The Commons and the Crown sought to amend their constituent Act, the 1911 statute, by reducing the Lords' period of delay prescribed under that Act, and thereby increase their own. That is something which only the King in Parliament itself could have done;

(iv) Accordingly, the Parliament Act 1949 is not an Act of Parliament at all, and consequently measures passed under it are of doubtful validity.

35. By contrast, other constitutional lawyers, such as Professors S. A. de Smith and Rodney Brazier, and Anthony Bradley and Keith Ewing, believe that the 1949 Act is valid. The essence of their argument is as follows:

(a) The Queen in Parliament has the power, recognised at common law, to enact primary legislation;

(b) The Queen in Parliament can provide for alternative and simpler methods of enacting primary legislation for particular purposes. In doing so, the Queen in Parliament redefines itself for those specified purpose;

(c) That has actually been done, by providing that a Regent can be substituted for an incapacitated Sovereign and can give Royal Assent (Regency Act 1937), and that the Commons and the Sovereign can enact primary legislation, in effect leaving out the House of Lords (Parliament Act 1911);

(d) In such a redefinition, no question of delegation arises: rather, a redefined Parliament passes primary (and wholly valid) legislation under the specified, alternative procedure; and

(e) In any case, where the "delegation" argument has been raised in the context of colonial legislatures the courts have been reluctant to apply it to legislatures.

36. It will be for the courts to decide in the current litigation whether the Speaker's certificate, given under the Parliament Act 1911, is any bar to proceedings which challenge the validity of the 1949 Act. It has been held judicially that statutes which seek to provide that an order or certificate shall be conclusive evidence do not protect from judicial inquiry an order or certificate which was beyond the power of the maker to make.

37. The present Government has rejected the argument that the Parliament Act 1949 is in any way invalid. It did so both during parliamentary consideration of Lord Donaldson's Bill, and during the debates on what became the Hunting Act 2004. The High Court came to the view at the first stage of the Countryside Alliance's action,[15] but an appeal is being made from that decision.

38. If the Parliament Act 1949 is, indeed, an Act of Parliament, then in law the House of Commons could pass and obtain Royal Assent for any bill under the Parliament Acts. It might be one to remove the remaining veto powers of the House of Lords, or even (more radically but perhaps fancifully) to abolish the House of Lords itself. As a matter of law there is nothing which could not be done under and within the terms of the Parliament Acts 1911 and 1949.

Proposals for reform

39. The Wakeham Commission[16] was of the view that the current balance of powers between the two Houses was "about right and should not be radically disturbed", and it thought that the Lords' delaying powers, as described in the Parliament Acts, should continue (Recommendations 2, 3). The subsequent Joint Select Committee on House of Lords Reform[17] also thought that there was no need to alter the Parliament Acts. Although the Wakeham Commission recognised certain "technical weaknesses" in the Parliament Acts, the Commission thought that they had given rise to no real difficulty in practice and recommended against tackling them unless wider substantive changes to the House of Lords were proposed (Report, p. 36). Those technical weaknesses in the Acts noted by Wakeham included the lack of any statutory definition of the changes to a bill which are necessary owing to the effluxion of time, and the conundrum that a bill can be presented for Royal Assent at the end of the second session, but that it is impossible to get Royal Assent once the session has ended. The Commission also noted that the Acts can only be invoked for bills which start in the Commons, but rejected change to that rule unless the Acts were to be subjected to a radical overhaul (Report, p. 38). The Commission's views were subject to the continued observance of two important conventions—that Government business is considered within a reasonable time, and that the principles underlying the Salisbury convention be maintained (Report, pp. 39-40).

40. The Wakeham Commission did, however, recommend that the two Houses consider whether the present informal conciliation procedures could be replaced by the establishment of a Joint Committee (Report, pp. 40-41). The Commission also suggested that the Parliament Acts be amended so that those Acts could only be amended in future with the agreement of both Houses (Recommendation 19). The Commission thought that the ability to use the Parliament Act to amend that Act, as was done in 1949, was a weakness which should be ended in order to protect the current balance of power between the two Houses and to guarantee that it could only be altered in future with the agreement of both Houses. That could be done by a simple amendment to section 2(1) of the 1911 Act (Recommendation 5.15). The Commission also recommended that the House of Lords' veto over subordinate legislation should be replaced by a power to delay it for three months (Recommendation 41).

41. By contrast, a Working Party which reported to the Labour Peers Group in 2004 called for a new Parliament Act as part of a package of reforms of the House of Lords.[18] The report argued that there is a case for modernising the language of the 1911 Act so as to make it more clearly understood, and to deal with a number of technical difficulties. The report supported the principle of the House of Lords having a delaying power. The report noted the "dense and technical structure" of the 1911 Act, which "is cumbersome in the extreme...", "and far from readily understood by peers, MPs or the public" (Report, p. 9). The report also supported the idea of a new Joint Committee to try to resolve legislative disagreements, and advocated extending the Parliament Act machinery to bills initiated in the Lords. It also supported the Wakeham recommendation to strengthen the Lords' veto over any bill to extend Parliament's life by requiring the assent of both Houses to any further reform of the Parliament Acts.

42. The general view is, therefore, that the relative legislative powers of the two Houses, as reflected in the Parliament Acts, is broadly satisfactory. A number of matters, however, remain for further consideration at some stage. They include possible changes to extend the Parliament Acts to bills starting in the Lords, to give the Lords a veto over any further changes to the Parliament Acts, to create formal reconciliation machinery, to deal with certain technical difficulties, and to modernise and make more comprehensible the rules in the 1911 Act.

43. To those suggestions from official bodies might be added the question of whether conventions might be sought to identify the types of bill which could aptly be passed under the Parliament Acts, and whether only measures envisaged in a General Election manifesto could qualify for such treatment. Legislation approved by both Houses could also settle once and for all any question about the validity of the Parliament Act 1949, if that issue remained a live one at the conclusion of the current litigation.

Summary of conclusions

44. The main conclusions of this survey may be summarised as follows:

(a) The Parliament Act 1911 was designed to regulate the legislative relations between the two Houses as a direct result of the constitutional crisis of 1909-1911. The Parliament Act 1949 was enacted so as to reduce the House of Lords' effective veto over legislation during the last two years of a five-year Parliament (see paras. 2-6 above);

(b) The Parliament Acts give the House of Lords the power to veto five types of legislation (see para. 9); the Acts severely limit the Lords' powers over Money bills (paras. 10-11); they permit the Lords to delay other bills for 13 months (paras. 12-18). The wording of the crucial section 2 of the 1911 Act is not pellucid (para. 12), but the delaying power can be analysed as involving six statutory rules (paras. 13-18);

(c) Statutes have been passed under the Parliament Acts seven times. Only once has this happened under a Conservative Government; the present Government has relied on the Acts three times (paras. 21-24);

(d) The appropriateness of the use of the Acts in a particular case comes down to political argument. There are no constitutional conventions or consistent practices which guide the use of the Acts:

(i) The Acts themselves give very little guidance about the kinds of bill which might appropriately be passed under them (para. 26);

(ii) On a very broad definition of the word "constitutional", all of the seven statutes passed under the Acts can be characterised as being constitutional in nature or having constitutional aspects to them (para. 27);

(iii) Governments have, however, asserted that there is no limit on the type of bill which could aptly be passed under the Parliament Acts, and rely on the general justification that if there is legislative deadlock between the two Houses over any public bill the wishes of the elected House must prevail over the unelected House (para. 30);

(iv) There are precedents for invoking the Acts over measures (1) which did not feature in a Government's General Election manifesto, as well as others which did, and (2) which had been passed on free votes in the Commons, and which therefore could not be said to be as much part of a Government's legislative programme as bills which are whipped by the Government (paras. 28-29);

(e) There are legal arguments which divide constitutional lawyers about the validity of the Parliament Act 1949 (paras. 34-36). Those arguments could only be settled by legislation or litigation; the Countryside Alliance is conducting such litigation (para. 32). On the assumption that the 1949 Act is valid then as a matter of law there is nothing that could not be done under and within the provisions of the Parliament Acts (para. 38);

(f) Both the Wakeham Commission and the Joint Select Committee on House of Lords Reform have expressed broad satisfaction with the Parliament Acts, although suggestions for change were made by the Wakeham Commission. Reform has been urged by a Working Group which reported to the Labour Peers Group in 2004 (paras. 39-41);