English Legal System

1. English Legal System The Composition of Parliament House of Commons House of Lords Lords Reform

2. Aims • The aims of this lecture are: • To look at the composition of the House of Commons; • To examine the composition of the House of Lords, both historically and subsequent to the Labour Party reforms of the House; • To evaluate the desirability of possible reforms to the House in future; • To consider how the House of Lords compares to other second chambers around the world; • To consider the role of the Parliament Acts and how they are affected by Lords Reform; • To look at the future of the Judicial and Spiritual Peers in a reformed chamber.

3. Learning outcomes • By the end of this lecture you should be able to: • Describe the composition of the current Houses of Parliament; • Describe the historical composition of the House of Lords and assess the desirability of the 1999 reforms; • Describe the procedure for passing an Act of Parliament using the Parliament Acts 1911 and 1949; • Evaluate the desirability of having Judicial and Spiritual Peers in the House of Lords.

4. Introduction • We saw in previous lectures that Acts of Parliament or statute, primary legislation is the highest form of law in the United Kingdom • In this lecture we will be critically considering the composition of Parliament which makes such legislation • We also saw that for a valid Act of Parliament at common law there has to be the consent of the Queen, the Lords and the Commons • The functions of Parliament can be summarised as: • To legislate • To deal with public finance • To debate issues of major public importance and to call the government to account • [Note that Parliament is also the oldest common law court]

5. The House of Commons • There are currently 659 seats in the House of Commons which are contested at the general election • The majority party in the Commons is by convention asked to form Her Majesty’s Government • Who are the Members of the House of Commons?

6. Composition of the Commons • Certain categories of people are disqualified from sitting in the House of Commons: • Aliens (although not citizens of the Republic of Ireland); • Persons under 21; • Persons of unsound mind; • Peers who are members of the House of Lords; • Bankrupts.

7. Composition of the Commons 6) Those convicted of corrupt and illegal practices under the Representation of the People Act 1949 7) Those disqualified under the House of Commons Disqualification Act 1975 for holding an “office of profit under the Crown”. These include, amongst others: • Judges (but not Magistrates) • Civil Servants • Members of the Armed Forces and Police

8. Composition of the Commons • Clergy of the main Christian denominations used to be disqualified from sitting in the House of Commons • This was abolished by the House of Commons (Removal of Clergy Disqualification) Act 2001 • The original disqualification came from the common law that the clergy formed a separate estate of the country • It had been put on a statutory basis at the turn of the eighteenth century

9. Composition of the House of Lords • The House of Lords can be divided into 4 groups, although the traditional division was between Lords Temporal and Lords Spiritual: • The Hereditary Peers still sitting after the House of Lords Act 1999; • Life Peers appointed by the PM under the Life Peerages Act 1958; • Judicial Peers appointed under the Appellate Jurisdiction Act 1876; • Spiritual Peers who had formed part of the Chamber since its inception in the 13th Century.

10. Provisions of the House of Lords Act 1999 • This Act was part of the Labour government’s reforms of the constitution to be enact following their landslide victory in 1997. • It provided that ‘No-one shall be a member of the House of Lords by virtue of hereditary right’ (s.1(1)) However, due to the threat of a Conservative wrecking amendment, 92 hereditary peers were allowed to remain (s.2(2))

11. Breakdown of the 92 Hereditaries • 2 of the peers must be: • The Earl Marshal; • The Lord Great Chamberlain. 15 Deputy Speakers and other officials of the House were also retained The other 75 hereditary peers were elected from the rest of peers on a party political basis

12. Hereditary Peers • Perceived difficulties: • Elitist, unrepresentative in a modern democratic state; • Underwrote inequality; • Out of step with other nations (only one other country has hereditary peers [Bhutan]) • In-built conservative majority in the House, backwoodsmen could be called in to defeat a Labour Government’s legislation.

13. Judicial Peers • One of the areas where the hereditary peers did not have expertise in the nineteenth century was in dealing with the judicial business of the house • The 1876 Appellate Jurisdiction Act provided that suitably qualified persons could be appointed to the House to deal with the judicial business • These are the 12 “Law Lords” or more correctly the Lords of Appeal in Ordinary • However, it is major wider group, the Judicial Peers, as it includes retired law lords

14. The Lords Spiritual • Group of 26 bishops from the Church of England • Archbishops of Canterbury and York, and the Bishops of London, Winchester and Durham sit as of right • The remaining 21 seats are filled by the most senior bishops within the Church of England • At the Reformation the bishops constituted over half of the Chamber, although the number of peers sitting at that time was much smaller • Number fixed by statute, Ecclesiastical Commissioners Act 1847, s.2; Bishoprics Act 1878, s.5

15. Where now for Lords Reform? • The Labour Government originally divided the Reform of the House of Lords into two stages • The Wakeham Commission was established to look into and report on what shape stage 2 of the reform of the House should take. The key proposals that the Commission made were: • A chamber of 550 members; • 65, 87 or 195 directly elected, possibly with regional assemblies electing members; • 15 year term of office; • Prohibition of re-election; • The rest of the House to be appointed by an independent appointments commission.

16. Joint Committee of Parliament recommendations • Reported in December 2002 and made seven recommendations: • An all appointed House; • 80% appointed, 20% elected House; • 60% appointed, 40 % elected House; • 50% appointed, 50% elected House • 40% appointed, 60 % elected House; • 20% appointed, 80% elected House • All elected. Debated in February 2003 and all 7 rejected by Commons, all but an appointed House rejected by the Lords.

17. The Theory of the Separation of Powers • Three branches of government – the legislature, the executive and the judiciary • Part of the theory lies in the idea that none of the personnel should overlap two branches of government Hence judges, civil servants, members of the regular armed forces cannot sit in Parliament – See House of Commons Disqualification Act 1957 (re-enacted in 1975) • The Crown and Lord Chancellor overlap all three branches • PM and Cabinet (executive) drawn from House of Commons (legislature)

18. Pragmatic arguments for Judicial Peers • Experience • Knowledge – legal knowledge and appreciation of the legal implications of questions • Provides workable laws • Must be set in context of the government’s proposals for a Supreme Court in the Constitutional Reform Bill 2004

19. Spiritual Peers • Bishop is an order of clergy recognised in the Church of England (and other major denominations of the Christian faith, for example Roman Catholicism) (the other orders are deacon and priest) • Bishops are the chief pastors of Christ’s flock within the diocese • Their authority comes from the apostles, what is known as the ‘apostolic succession’

20. Why have Bishops/Spiritual Peers in the House? • Representation of religion Religious groups form a significant proportion of the population – in the North-East in 2001 census 80.1% said they were Christian For members of a religious organisations loyalty to their religion may transcend other loyalties Consequently the presence of religious representatives may give the Chamber greater ‘authority’

21. Why have Bishops/Spiritual Peers in the House? • Moral input from the bishops Philosophical, theological input of Spiritual Peers BUT, what about the other peers and their morality?

22. Why have Bishops/Spiritual Peers in the House? • Regulation of religion Certain areas where religion has to be regulated, e.g. marriage, burial, legislation relating to the the slaughter of animals Spiritual peers can bring to bear a religious perspective

23. Arguments against • Religion a private matter – Article 9 of the European Convention on Human Rights • Peers other than the spiritual peers will have religious/ethical convictions • Religion and politics should not be mixed, separation of Church and State • Other western states do not have religious representation in their assemblies

24. Legislation altering a valid Act • 1911 Parliament Act • Historical background to the 1911 Act • 1949 Parliament Act – reduced the period in which the Lords could delay the legislation from two years to one year • Passed using the Parliament Act procedure 1911 itself

25. Effect of the 1911 Act Abolished the House of Lords’ right to veto bills No longer necessary to have the consent of the Commons, Lords and Queen for a valid Act of Parliament Gave different powers in relation to money and non-money bills

26. Position with Money Bills • Definition – ‘any public bill which, in the opinion of the Speaker, contains only provisions dealing with central government taxation, or the raising, guarantee or repayment of loans’ • Lords have one month to read the bill and propose amendments • The bill may be presented for the Royal Assent without the amendments • Commons has accepted a number of Lords’ amendments (e.g. China Indemnity Bill 1925, Industrial Development Bill 1970)

27. Non-money bills • Lords have the power merely to delay legislation for one year over two Parliamentary sessions • This was a reduction from the 2 years allowed under the 1911 Act brought in by the 1949 Act

28. Conditions • One year must have elapsed between the 2nd reading of the bill in the Commons in the first session and its 3rd reading in the Commons in the second session • The Bill must have been sent to the Lords at least one month before the end of the second session • The Bill must be substantially the same in both sessions (apart from amendments made by Lords in first session)

29. Use of the Act The Act has only in fact been used on six occasions: Government of Ireland Act 1914 Welsh Church Act 1914 Parliament Act 1949 War Crimes Act 1991 European Parliamentary Elections Act 1999 Sexual Offences (Amendment) Act 2000

30. Bills excluded • Bills purporting to extend the life of Parliament beyond 5 years; • Lords Bills; • Private Bills; • Financial (but not Money) Bills. • Statutory Instruments are also excluded

31. Summary of lecture • You should now be able to: • Describe the composition of the House of Commons and the House of Lords; • Critically assess the desirability of proposals for further Lords reform; • Identify and critique the importance of the Judicial and Spiritual Peers to the House of Lords; • Explain the procedure for using the Parliament Acts to pass legislation.

32. Further Reading • Visit http://www.charter88.org.uk/pubs/brief/0204lords.html • See Smith, C. ‘The Place of Representatives of Religion in the Reformed Second Chamber’ [2003] Public Law 674