Constitutional Reform

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Method of constitutional reform

Because Parliament is sovereign, reform of the constitution can be effect by an Act of Parliament: no special procedure is required for constitutional reform

Can the constitution be modernised without the consent of the House of Lords?

  • Yes. The combined effect of the Parliament Act 1911 and 1949 means that it is possible to reform the constitution without the consent of the House of Lords.

Parliament acts 1911 and 1949

As seen in R (Jackson) v Attorney General [2005], the 1949 Act that further reduced the power of the House of Lords (which clearly amounted to a substantial constitutional reform), was passed without the consent of the House of Lords

  • In other words, the 1949 Parliament Act is an example of constitutional reform made without the consent of the House of Lords

There are some exceptions to this:

  • s5: “Bills for confirming a provisional order” – this is now obsolete
  • s2(1): “Bills containing any provision to extend the maximum duration of Parliament beyond five years” – this is a true exception (Fixed-Term Parliament Act 2011)

But, virtually any act can be passed without the consent of the House of Lords

What constitutional reforms have taken place? Some examples…

Scotland, Northern Ireland, and Wales have devolved legislative and executive bodies

Human rights guaranteed under the European Convention on Human Rights have been given domestic effect by the Human Rights Act 1998

House of Lords Act 1999

Freedom of Information Act 2000

Constitutional Reform & Governance Act 2010

Fixed Term Parliaments Act 2011

European Union Act 2011

House of Lords Act 1999

Introduction

The desire to reform the House of Lords had been on the agenda prior to the Parliament Act 1911. The 1911 Act was a compromise: a reduction in the power of the Lords in order to retain the Lords as a chamber comprising hereditary peers

The slow decline of the House of Lords was interrupted by the enactment of the Life Peerages Act 1958. It enabled the leaders of the main parties to appoint life peers. The chamber soon rapidly grew in its size...

The House of Lords Act 1999 was again a compromise: the Government wanted to remove all hereditary peers and reduce the size of the chamber; all but 92 of them went, leaving a chamber of around 800 peers who are mostly life peers.

The House of Lords today

Peers today are appointed by the prerogative, but in practice, Prime Ministers recommend life peerages at or near their resignation from office, or former MPs are recommended upon the dissolution of Parliament

The Prime Minister may make a recommendation to provide a peerage for a ministerial appointment where that minister is not an MP e.g. Peter Mendelsohn

Otherwise the House of Lords Appointments Commission can recommend appointments for those with no strong party-political affiliation

The next stage?

The House of Lords Reform Bill 2011 aimed to remove all hereditary peers, transform it into a 300 member ‘hybrid’ chamber (i.e. 80% elected and 20% appointed), and ensure the elected members were elected for a single, non-renewable term of 15 years

  • This Bill was withdrawn in August 2012

FREEDOM OF INFORMATION ACT 2000

The Freedom of Information Act 200 creates a general ‘right of access’ to information held by public authorities

Exemptions:

  • Absolute exemptions (i.e. information held by public authorities that should never be released): security matters, court records, or information that would breach data protection laws
  • Qualified exemptions (i.e. information held by public authorities that should not be released in certain circumstances): where reasons of ‘public interest’ necessitate non- disclosure, for example, law enforcement, international relations, defence capability, public health, etc.

When has the Act been used to access information?

  • The Act was used to reveal the MP expenses scandal
  • The Act was used to find out the number of police officers with criminal records
  • And the Act was also used to see whether Leicester City Council has contingency plans in place for a zombie attack

CONSTITUTIONAL REFORM ACT 2005

The Constitutional reform Act 2005 reformed the role of the Lord Chancellor, it created the Supreme Court, removed the function of the speaker in the House of Lords, and created an independent Judicial Appointments Commission

EQUALITY ACT 2010

This Act replaced previous anti-discrimination laws with a single Act of Parliament

It provided the basic framework of protection against direct and indirect discrimination

It extended the protection of the breastfeeding mothers, disabled people, transsexuals, and other categories of people

FIXED-TERM PARLIAMENTS ACT 2011

This fixed the terms of future Parliaments to 5 years

Parliament is to be automatically dissolved 17 working days before the election date

The Act expressly removes any other way of dissolving Parliament (i.e. including the royal prerogative)

SUCCESSION TO THE CROWN ACT 2013

This Act provided for gender equality in royal succession

It abolished the prohibition on a royal heir marrying a Roman Catholic

It limited the requirements on the need for the Monarch’s consent in respect of certain royal marriages

Constitutional Reform: Analysis

Matthew Flinders: In order for a constitutional reform process to succeed, three variables must be present simultaneously:

  • Public pressure for change
  • Constitutional entrepreneur within the government
  • Broad ideational shift among the political elite

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