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Two Houses go to war: the Safety of Rwanda Bill and the origins of the Parliament Act

25 Mar 2024
Passing of the Parliament Bill, 1911 From ''The Rise of the Democracy'', by Joseph Clayton. ©Project Gutenberg
Passing of the Parliament Bill, 1911 From ''The Rise of the Democracy'', by Joseph Clayton. ©Project Gutenberg

The Parliament Act is being bandied about in the media again in connection with the Rwanda Bill. This blogpost explains why the Parliament Act cannot be used in relation to the Rwanda Bill and looks at the origins and key features of the Act to place the current debate about the role of the House of Lords in its historical context.

Paul Evans, Former House of Commons Clerk
,
Former House of Commons Clerk

Paul Evans

Paul Evans
Former House of Commons Clerk

Paul Evans CBE retired in August 2019 from the post of Clerk of Committees in the House of Commons, after 38 years working there. He was made a CBE in 2019.

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The Safety of Rwanda (Asylum and Immigration) Bill has been amended by the House of Lords. Parliamentary ping-pong, the process whereby both Houses of Parliament reach agreement, or not, on the text of the Bill, is now underway.

Recognising the primacy of the elected House, Peers generally give way to the will of the elected House of Commons after two or three rounds of ping-pong and that may indeed be the outcome on the Rwanda Bill in due course. But at this stage of the legislative process there are few formal rules governing how disagreement between the two Houses should be resolved.

There has thus been much media speculation about what might happen if Members of the House of Lords continue to dig in their heels and the Bill is consequently delayed.

Some leading political commentators - most recently The News Agents podcast team - have speculated that Ministers could use the Parliament Act to bypass the House of Lords. In fact, the timing of the Rwanda Bill means it is not possible to use the Parliament Act this side of the forthcoming general election.

A number of conditions apply to the use of the Parliament Act procedures. In practical terms these conditions mean that the House of Lords can delay a Bill for at least 13 months before the Parliament Act can be used by Ministers.

This Parliament must dissolve for a general election by 17 December 2024. With just nine months of parliamentary time remaining, the Parliament Act cannot therefore be deployed in relation to the Rwanda Bill or any other Bill in this Parliament.

We are always told we don’t have a written constitution in the UK. But the Parliament Act is one of a handful of the most significant Acts of Parliament codifying things that might normally be expected to be found in a constitution.

But the confusion about the provisions of the Parliament Act highlights the extent to which this central plank of the constitution is often misunderstood despite its centrality to the centuries-old debate about the proper role of the House of Lords in our democratic system.

The genesis of the Parliament Act 1911 went back at least as far as the Lords’ rejection of Gladstone’s Irish Home Rule Bill in 1893, but there was a crescendo of conflict between the two Houses at the beginning of the 20th century.

The House of Lords, still entirely hereditary, had 602 Members of whom 355 declared themselves Conservative Unionists and a further 124 Liberal Unionist with only 88 identifying as Liberals – plus the Archbishops and Bishops and a few others.

It had the power (not written in any constitution or statute but held to be unquestioned) to refuse to agree to any Bill whether or not passed by the Commons. Since the dawn of the democratic era in 1832 it had used this power with great circumspection for the most part, leaving aside the Irish question. But after the Liberals’ landslide victory in 1906 (when for the first time 29 Labour MPs were also elected), the leader of the Conservative Party, Arthur Balfour, began to encourage his supporters in the House of Lords to oppose almost the whole core of the Liberal’s programme. In 1906, for example, they killed the government’s Education Bill (given a Third Reading in the Commons by 369 to 177); they went on to kill two more versions of it in succeeding years. They also shot down the Licensing Bill and another rather timid Irish Bill and made it impossible for the Government to see any point in bringing forward its land ownership reform proposals.

Over-excited by all this somewhat unprincipled politicking, the Lords eventually lost their heads completely. They rejected the Finance Bill giving effect to the Chancellor Lloyd George’s 1909 budget at its Second Reading.

This overturned a convention, which had been unchallenged for at least 250 years, that the Lords did not interfere in financial measures agreed by the Commons.

In effect, by denying the government ‘Supply’ they were laying claim to a right of the Upper House to determine who formed the Government and what it was to be allowed to do.

There followed a two-year constitutional crisis on an epic scale. Unable any longer to tolerate the Lords’ irresponsible blocking tactics the Liberal Government went to the country in January 1910 on a promise to clip the Upper House’s wings.

Although they lost seats to the Conservative Unionists, the informal coalition of Liberals, Labour and the Irish parties had still an overwhelming majority. When Parliament resumed, the Government entered negotiations with the Conservatives to try and find a compromise (meanwhile the somewhat chastened Lords passed the 1909 Budget Bill pretty much unchanged). Those talks failed, while in parallel a number of proposals to reform the Lords’ composition rather than its powers were put forward. Many of those proposals can be traced in more recent suggestions for reform of the composition of the Upper House. The Government was not, however, prepared to support reform of the House’s composition until reform of its powers had been settled. The talks ended in failure.

Meanwhile, on 6 May 1910, Edward VII had died suddenly and unexpectedly. He was succeeded by George V, a man of a very different character. This threw into some doubt the understanding that if the Lords refused to surrender their veto the King would allow the Prime Minister to appoint as many Peers sympathetic to the Liberal Government as was necessary to get the legislation through. Some understanding was reached, but at the price of the King’s apparent insistence on another dissolution and election before he would concede the appointments.

The December 1910 election produced almost no change in the balance of the House of Commons. With the credible threat of being flooded by new Peerage creations hanging over them, and three Liberal election victories to express the ‘will of the people’, the Lords caved in and the Parliament Act received Royal Assent in August 1911 after the Lords had given it a Third Reading by 131 to 114. So, after two general elections, a demise of the Crown and an awful lot of argy-bargy, the crisis concluded in victory for the House of Commons.

The 1911 Act did two slightly different things with the House of Lords veto.

Section 1 removed the veto completely in the case of what it called ‘Money Bills’ (the definition of which is quite complicated), thereby dealing with the immediate cause of the crisis in the Lords’ rejection of the 1909 budget.

Henceforth, if the Lords did not return a Money Bill, unamended, to the House of Commons within a month of receiving it, then the Commons were free to present it for Royal Assent unilaterally. To a degree this was uncontroversial, being seen as a statutory reassertion of what had long been understood to be the status quo ante.

Section 2 addressed the wider problem by replacing the House of Lords’ absolute veto with a ‘suspensory veto’. It provided (with certain conditions) that if the Commons passed a Bill in the same terms in two successive Sessions, and the two Houses failed to agree upon it, in the third Session the Commons could once again send the same Bill to the Lords and if they again failed to agree it the Commons could present it for the Royal Assent unilaterally.

In effect, the Lords could delay a Bill for two or three years, thereby preserving their right to ask the House of Commons to ‘think again’, but they could not kill a Bill. The only exception was for any Bill proposing to extend the life of a Parliament beyond five years (see below), over which the Lords retained an absolute veto.

Sections 3 to 5 made some technical provisions; and section 6 included a rather gnomic reference to the “existing rights and privileges of the House of Commons”.

Section 7 amended the Septennial Act 1715 to reduce the maximum duration of a Parliament from seven to five years from its first meeting. This was seen as a quid pro quo for giving the House of Commons greater power by making it more frequently answerable to the electorate, and as a sop to those who (partly under the influence of that intellectual charlatan A V Dicey) had started to argue that an ill-defined category of ‘constitutional legislation’ should be made subject to approval by referendum. (The Septennial Act itself is sometimes characterised as a piece of electoral gerrymandering by the Whigs, as it extended the maximum three-year interval between general elections set by the Triennial Act 1694.) The Septennial Act was repealed by the Fixed-term Parliaments Act 2011. That Act was in turn mostly repealed by the Dissolution and Calling of Parliaments Act 2022, and the five-year provision was then re-enacted in section 4 of the 2022 Act.

The Preamble to the 1911 Act (we don’t really have Preambles any more) famously declared, with a nod to the debates about the composition of the Lords, that “it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis”, suggesting that the Act was a stop-gap measure before the creation of an elected second chamber.

This promise was probably sincerely intended by the drafters of the resolutions forming the basis of the Preamble that the House of Commons had earlier approved. There were a series of constitutional conferences and other negotiations starting with a Cabinet Committee immediately following the passage of the 1911 Act and continuing with further proposals in 1917, 1922, 1927 and 1933. The proposals ranged from an all-elected House based on proportional representation for large multi-member regional constituencies through variations on mixtures of indirect appointment, allowing an element of hereditaries elected by their peers, and political appointments. All seemed to agree on a House of around 250-350 Members. But none of the plans were implemented.

The Labour Government elected in 1945 was at least as radical in its ambitions as the Liberal Government of 1906, and the Lords, though now far less assertive, were seen as a potential drag on reform.

The immediate casus belli was the Bill to nationalise the iron and steel industries, introduced in 1947. In the same year a Bill to amend the 1911 Act to reduce the Lords suspensory veto from an effective maximum of three years to two was introduced. It reached the Lords where proceedings were suspended while yet another Constitutional Conference was convened to try and thrash out a compromise. Once again it failed, and in April 1948 the Lords denied the Bill a Second Reading by 177 to 81. In order to hurry things along the Labour Government then held a sort of faux session between 14 September and 25 October 1948 where the only business was passing the Parliament Bill again to get the second Session requirement over and done with. The Lords rejected it by 204 to 34. It was then reintroduced in the third Session and was again rejected by the Lords, this time by 110 to 17. On 16 December 1949 it received Royal Assent under the terms of the 1911 Act and became the Parliament Act 1949.

The Constitutional Conference of 1948 had rehearsed many of the now familiar proposals for reform of the composition of the Lords – none came to immediate fruition. However, the Life Peerages Act 1958, introduced by the Conservative government against Labour opposition, provided for the appointment of Peers as members of the House of Lords without giving the right of inheritance of that title and privilege to their children. This Act incidentally also first allowed for women to be Members of the Lords, although hereditary peeresses in their own right had to wait upon the Peerages Act 1963 to be able to do so. That 1963 Act also enabled inheritors of peerages to disclaim them – so enabling figures as diverse as Alec Douglas-Home, Quintin Hogg and Tony Benn to remain MPs after they had inherited a peerage from their fathers. These changes seem to have successfully staved off demands for more radical reforms for a while. But the House of Lords Act 1999 finally expelled the bulk of hereditary Peers, reducing the membership from around 1200 to around 700 at a stroke. (It has since crept back up to over 800.) The House of Lords Reform Act 2014 for the first time allowed Peers to resign their membership of the House (as well as providing for the disqualification of Members convicted of a serious criminal offence).

But in the last quarter century repeated attempts at more significant reform of the Lords’ composition and powers have foundered. Those of a conservative disposition cling to their desire for a powerful second chamber to discourage too much democracy, those of a radical temper of mind tend to resist any reform which might have the effect of strengthening the legitimacy of the upper House in its relationship with the Commons. And some argue that, as a revising rather than a deciding chamber, the Lords need represent nobody but itself.

In the immediate aftermath of the 1911 Act, the provisions of its Section 2 were used to enact the Government of Ireland Act 1914 and the Welsh Church Act 1914. The former was suspended on the outbreak of war and was never brought into effect – being overtaken by the rebellions and wars of 1916-21.

The Lords were threatened with Section 2 after refusing to pass the Bill which became the Temperance (Scotland) Act 1913 but in the third Session conceded.

The only other Act to be passed under the unamended 1911 provisions was the Parliament Act 1949 described above.

Then there was another period of peace between the two Houses, although during the Labour government of 1974-79 both the Trade Unions and Labour Relations Bill and the Aircraft and Shipbuilding Industries Bill were sent to the Lords with the threat of using the Parliament Act provisions, after which the Lords conceded.

Surprisingly, it was a Conservative Government which first used the amended 1911 Act to override the Lords on the Bill that became the War Crimes Act 1991.

Subsequently the Labour Government used the Parliament Act procedures to enact the European Parliamentary Elections Act 1999 (which introduced Proportional Representation rather than First-Past-The-Post for the election of MEPs), the Sexual Offences (Amendment) Act 2000 (which reduced the age of consent for homosexual acts) and the Hunting Act 2004 (which outlawed the hunting of wild mammals with dogs) – none of which were fundamental to the Government’s economic or constitutional programme.

Since then, there has been another long truce.

But those seven examples are not the only occasions on which the provisions of the Parliament Act have been used.

Section 1 of the Act – relating to Money Bills – is often forgotten because it has never really stirred up any controversy. The Act provides that where a Money Bill is sent to the Lords it should be accompanied by a certificate from the Speaker of the House of Commons stating that it meets the criteria set out in Section 1(2) of the Act.

Although the figures are somewhat unreliable , in almost every parliamentary Session somewhere between half-a-dozen and a dozen Bills are sent to the Lords with such a certificate. The certificate triggers the provision of Section 1(1) that prevents the Lords delaying (beyond a month) or amending a certified Bill.

However, the infrequency of the formal use of Section 2 of the Act of course understates its power.

Because the House of Lords know that if they thwart the will of the House of Commons on a Bill in one Session they could be faced with the same Bill in the next and have no power to revise it, they acknowledge the ultimate futility of resistance.

Nonetheless, the threat of delaying a Bill by a minimum of 13 months still gives Peers some bargaining power.

But like any weapon of last resort, Section 2 of the Parliament Act 1911 is generally more effective as a shot kept in the locker than brought out of it.

Evans, P. (25 March 2024), Two Houses go to war: the Safety of Rwanda Bill and the origins of the Parliament Act, (Hansard Society blog)

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