<<

. 121
( 155 .)



>>

motion a¬rming ˜its unfettered freedom to vote on any subordinate legislation
submitted for its consideration™ (HL Deb vol 558, col 356 et seq). Peers sup-
porting the motion acknowledged that the right was to be exercised only as a
last resort. (See also HL Deb vol 574, col 687 et seq, 15 July 1996.)
The Lords asserted themselves in February 2000 when two items of delegated
legislation relating to Greater London Authority elections were laid before
Parliament. The Greater London Authority (Election Expenses) Order was laid
in draft and was subject to a¬rmative resolutions of both Houses, while the
Greater London Authority Elections Rules were laid after being made and were
subject to the negative procedure. (See above, p 457 as to the a¬rmative and
negative procedures.) There was opposition to both orders because neither pro-
vided for free mailshots for candidates in the elections. In the House of Lords a
government motion to approve the draft Election Expenses Order was defeated,
and a negative resolution was carried against the Elections Rules. Having lost
both orders, the Government entered into negotiations with opposition peers
and a compromise was agreed, upon which modi¬ed orders were laid which
were not contested and duly came into e¬ect. (See further R Blackburn and
A Kennon, Gri¬th and Ryle on Parliament (2003), paras 12“161“12“162.) It has
been debated whether a reformed Upper House should have power only to delay
and not to veto delegated legislation.


(a) Reform
The need for the reform of the House of Lords has been generally acknowledged,
and it was a Conservative Deputy Leader of the House who remarked in 1967
that the hereditary element in the composition of the House was ˜not really a
rational basis on which to run a second chamber in a democracy™ (see J Morgan,
The House of Lords and the Labour Government 1964“1970 (1975), p 172).
A carefully worked-out scheme of reform was incorporated in the Parliament
(No 2) Bill 1968, but a campaign of ¬libustering by backbenchers on both sides
649 Parliament and the responsibility of government


of the House of Commons and the press of more urgent matters caused the
Labour Government to drop the bill. (Its scheme of a two-tier House of voting
and non-voting peers is described in the White Paper, House of Lords Reform,
Cmnd 3799/1968.) Various other schemes of reform have been proposed,
whether for an elected Upper House or for one partly elected and partly nomi-
nated. A proposal of the latter kind was made in the Report of the Conservative
Review Committee, The House of Lords, in 1978, but the interest of the
Conservative Party in reforming the House of Lords afterwards waned, until
1998 when the Conservative leader, Mr William Hague, set up a commission to
consider possible reforms. A Labour Party policy review of 1989 proposed an
elected second chamber whose members would ˜particularly re¬‚ect the interests
and aspirations of the regions and nations of Britain™ and which would have an
extended power to delay, for the whole life of a Parliament, legislation a¬ecting
fundamental rights (Meet the Challenge, Make the Change (1989), pp 55“6).
Labour Party policy in the 1990s became more reticent as to the composition of
a reformed second chamber, but was committed to the removal of the hereditary
element. The Labour and Liberal Democrat Parties reached agreement on a two-
stage programme of reform, which was re¬‚ected in the Labour manifesto for the
1997 general election.
The manifesto promised that as an initial, self-contained reform, ˜the right of
hereditary peers to sit and vote in the House of Lords will be ended by statute™.
This was to be ˜the ¬rst stage in a process of reform to make the House of Lords
more democratic and representative™. Its legislative powers would remain unal-
tered. Appointments of life peers would continue, at least for the time being,
but should ˜more accurately re¬‚ect the proportion of votes cast at the previous
general election™. An ˜independent cross-bench presence of life peers™ would be
maintained, so that no one political party would be assured of a majority in the
House. In the second stage, a committee of both Houses of Parliament would
be appointed ˜to undertake a wide-ranging review of possible further change
and then to bring forward proposals for reform™. The Labour Government sub-
sequently ampli¬ed its commitment to further reform, saying that it would ¬rst
appoint a Royal Commission to carry out ˜the wide-ranging review™ and to
make recommendations for legislation; the proposed joint committee of both
Houses would then examine the parliamentary implications of the Royal
Commission™s work.
In January 1999 the Government announced the appointment of the Royal
Commission, with Lord Wakeham as chairman, with terms of reference requir-
ing it ˜to consider and make recommendations on the role and functions of a
second chamber; and to make recommendations on the method or combina-
tion of methods of composition required to constitute a second chamber ¬t for
that role and for those functions™.
At the same time a House of Lords Bill was introduced in the House of
Commons, providing for the removal of the right of hereditary peers (then
some 750 in number) to sit and vote in the Upper House. In order to facilitate
650 British Government and the Constitution


the passage of the bill through the House of Lords, the Government agreed to
an amendment (the ˜Weatherill amendment™) to allow ninety-two hereditary
peers to remain in the House until the second stage of reform was implemented.
Of this number, ninety would be elected from the existing hereditary peers
in accordance with arrangements in new Standing Orders (providing also
for by-elections to maintain the number at ninety) while two other hereditary
peers holding great o¬ces of state (the Earl Marshal and the Lord Great
Chamberlain) would remain as members of the House ex o¬cio. The bill duly
received royal assent as the House of Lords Act 1999.
Pending further reform the House of Lords was to continue as a House of
predominantly appointed peers, together with twenty-six Church of England
bishops and the Law Lords. The Prime Minister announced that he would
forego his right of veto over nominations of peers by opposition leaders,
and that his power to nominate cross-bench peers would be transferred to an
independent Appointments Commission. No one party would be in a posi-
tion to dominate the transitional House. The non-statutory Appointments
Commission of seven members was appointed in May 2000: four members were
selected in an open recruitment exercise conducted in accordance with the prin-
ciples of the Commissioner for Public Appointments, while one member was
nominated by each of the three main political parties. The seven members were
reappointed in 2003 for a further three-year term. Persons recommended by the
Appointments Commission must have ˜independence, integrity and a commit-
ment to the highest standards of public life™. By mid-2006, thirty-six non-party-
political peers had been appointed by the Queen on the recommendation of
the Commission. The Prime Minister continues to nominate directly to the
Queen distinguished public servants on their retirement for appointment to
non-party-political peerages (no more than ten in any one Parliament). The
Appointments Commission also has the role of scrutinising all nominations for
peerages, in particular those made by the political parties (other than peerages
to be conferred on persons who are to serve in the Upper House as ministers).
It reports to the Prime Minister any concerns it may have about the propriety
of nominations, but does not have a veto.
On the ¬rst stage of the reform see Shell, ˜Labour and the House of Lords: a
case study in constitutional reform™ (2000) 53 Parliamentary A¬airs 290.
The report of the Wakeham Royal Commission (A House for the Future, Cm
4534/2000) made 132 recommendations. It proposed relatively modest changes
in the legislative and scrutinising functions of the Lords, intended to enhance
their role in the legislative process and enable them more e¬ectively to hold the
executive to account, but without signi¬cantly enlarging their powers or dis-
turbing the existing balance between the two Houses. The principal recom-
mendations of the Wakeham Commission related to the composition of the
Upper House, to consist of about 550 members. The Law Lords would remain
and there would be thirty-one representatives of the di¬erent religious faiths.
For the rest the House would be composed of a majority of appointed members
651 Parliament and the responsibility of government


and a minority of elected regional members (65, 87 or 195 according to the
several options proposed). All appointments would be the responsibility of a
statutory Appointments Commission which would be required to maintain
a political balance re¬‚ecting each party™s share of the votes in the most recent
general election, and also to ensure that at least 20 per cent of the total mem-
bership of the House should be cross-bench (independent) members. Under
this arrangement no single party would have an overall majority in the House.
(On the Wakeham Report see Shell [2000] PL 193, Oliver [2000] PL 553 and
Russell and Cornes (2001) 64 MLR 82.)
The Government™s initial response to the Wakeham Report was positive. The
Lord Privy Seal (Baroness Jay) said in the House of Lords (HL Deb vol 610, col
912, 7 March 2000):

The Government accept the principles underlying the main elements of the Royal Com-
mission™s proposals on the future role and structure of this House, and will act on them. That
is, we agree that the second Chamber should clearly be subordinate, largely nominated but
with a minority elected element and with a particular responsibility to represent the regions.
We agree that there should be a statutory appointments commission.

The Lord Privy Seal added, however:

Nothing I have said today indicates that the Government accept any particular one of the
report™s detailed proposals.

The Government™s proposals for the second stage of reform were published
in a White Paper, Completing the Reform (Cm 5291/2001), and were seen to
deviate from the Royal Commission Report in some important respects. While
adhering to the Wakeham principle of a largely appointed Upper House with a
minority (20 per cent in the White Paper) of regionally elected members, and
entrusting the appointment of cross-bench members to a statutory Appoint-
ments Commission, the White Paper would leave nomination of the political
members in the hands of the political parties.
The White Paper followed Wakeham in leaving the powers and functions of
the House of Lords substantially unchanged, but for a new power to delay a
statutory instrument for up to three months, in place of the existing veto power
over delegated legislation.
If the Wakeham Report had been widely regarded as over-cautious, if
realistic, and as including some well-devised and sensible proposals, the White
Paper met with a generally hostile response, not least among Labour back-
benchers, was deprecated by Lord Wakeham himself, and was criticised as
a timid and executive-minded approach to the un¬nished business of reform.
There was particular dissatisfaction with the proposal that a majority of
members should be nominees of the political parties and much support for the
view that a substantial majority of members should be democratically elected.
652 British Government and the Constitution


(See HL Deb vol 630, col 561 et seq, 9 January 2002; HC Deb vol 377, col 702 et
seq, 10 January 2002.) More than 300 MPs signed an Early Day Motion calling
for a wholly or substantially elected second chamber, and the Public
Administration Committee was unanimous in recommending that 60 per cent
of the members should be elected, in a chamber of no more than 350 members
in total (Fifth Report, HC 494-I of 2001“02). The Government, conceding that
consensus on the composition of a reformed second chamber had not been
achieved, agreed in May 2002 to the establishment of a joint committee of both
Houses (its membership to be settled through ˜the usual channels™) to explore
afresh the options for reform and to bring forward alternative proposals to be
voted on by each House. The joint committee (of twelve MPs and twelve peers)
presented seven options: a wholly appointed House, a wholly elected House,
and a House of 20, 40, 50, 60 or 80 per cent elected members. In February 2003
the House of Lords voted by a substantial majority in favour of an all-appointed
House, but there was no majority support for any of the proposed options in
the Commons (who voted decisively against an all-appointed House and also
against an additional option of abolition of the House of Lords. The 80 per cent
elected option was defeated by only three votes.)
In response to this impasse the Government published in September 2003
a consultation paper, Constitutional Reform: Next Steps for the House of Lords,
which conceded that there was no parliamentary consensus on further reform
and proposed instead that legislation should consolidate the reforms already
made by providing for the removal of the remaining hereditary peers and for
the establishment of a new independent Appointments Commission. In the
following year the Government announced that it had decided not to proceed
with the proposed legislation, since it was persuaded that the Lords would not
pass a bill making such provision.
The Labour Party manifesto for the 2005 general election rea¬rmed the
party™s position that ˜a reformed Upper Chamber must be e¬ective, legitimate
and more representative without challenging the primacy of the House of
Commons™. The manifesto included commitments to remove the remaining
hereditary peers, to limit to sixty days the time for consideration of a bill in the
House of Lords, to seek the cooperation of other parties in setting up a joint
committee of both Houses to review the ˜key conventions™ of the Lords, and to
allow a free vote on the composition of the Upper House. In May 2006 the two
Houses agreed to establish a Joint Committee on Conventions ˜to consider the
practicality of codifying the key conventions on the relationship between the
two Houses of Parliament which a¬ect the consideration of legislation™. In its
First Report, HL 265-I, HC 1212-I of 2005“06, the Joint Committee recom-
mended as follows:

(1) ˜it would be practicable for the Lords to debate and agree a resolution
setting out the terms of the [Salisbury-Addison] Convention™ and to com-
municate it to the Commons for their consideration: in this connection the
653 Parliament and the responsibility of government


Committee noted ˜the emergence in recent years of a practice that the
House of Lords will usually give a Second Reading to any government Bill,
whether based on the manifesto or not™;
(2) while there is a convention that the Lords should deal with government bills
in reasonable time, a ¬xed time limit would have unacceptable conse-
quences and be of bene¬t only to the Government;
(3) other than in exceptional circumstances (as when special attention has been
drawn to a statutory instrument by the Joint Committee on Statutory
Instruments or the Lords™ Merits Committee) ˜opposition parties should
not use their numbers in the House of Lords to defeat an SI simply because
they disagree with it™;
(4) formal codi¬cation of the conventions was not appropriate, but the Com-
mittee™s own formulations and any consequent resolutions of the Houses
should improve clarity and shared understanding of the conventions.
The Committee observed in conclusion that if the Lords acquired an electoral
mandate the conventions between the Houses would have to be re-examined.
Discussions continue between the parties on the next stage of reform, and
agreement on the composition of the second chamber has yet to be reached.
Most reformers do not envisage any major change in the role or functions of
the House of Lords and foresee it as continuing to be a revising, scrutinising
and deliberative assembly which does not contest primacy with the Commons.
A reformed House with a restored legitimacy and immune from dominance by
party or the executive could assume a more active role, in partnership with the
Commons, in making accountability e¬ective.
10

The courts: judicial review and liability




Contents
1 Nature and foundations of judicial review
2 Grounds of review
(a) Illegality
(b) Irrationality
(c) Proportionality
(d) Procedural impropriety and unfairness
3 Scope and limits of judicial review
(a) Scope of judicial review
(b) Standing
(c) Ouster clauses
(d) Judicial review of prerogative powers
4 Conclusion: the advance of judicial review
5 Liability of the Crown
(a) Contractual liability
(b) Tortious liability
(c) Liability in restitution
6 Liability of public authorities

<<

. 121
( 155 .)



>>