House Of Lords..... and mind of old school mind set

Majority of democratic states have bicameral legislature. In UK the second chamber, the upper house or House of Lords is currently an unelected chamber which use to have judicial (but not now under CRA2005), legislative, scrutinizing and debating functions.

To answer the given question it is important to analyze the functions of House of Lords.

The House of Lords provide a forum for debating and analyzing the matters of public interests which includes the discussions on policies and legislative functions. It provides

Diffusion rather than concentration of power within parliament. The quality of debate is higher than that of commons. Moreover due to lack of procedures in debate it is ensured that the content of bill is fully debated. HOL produce better discussion of any bill and also debates on sensitive issue of the bill regardless of any accountability, because un like common HOL is un elected. Next important issue of HOL is the revision of bill brought from House of Commons. These revisions are of central importance where the lower house is dominated by a government of strong majority. HOL purposes amendment of bill which maintains quality of statute book. It occupies largest and increasing proportion of time of the HOL. Under the parliament act 1911, 1949 the HOL has power to delay enactment of bill, propose amendments. Generally HOC give way to HOL and accept their amendments rather than risk losing a bill for lack of parliamentary time. If a bill fails to pass all its stages in a session, it will be lost and government will have to reintroduce it in next session. To avoid this situation HOC most of the time accepts the amendments by HOL. HOL has 170 independent members which insure the independence of the house, and not being accountable to the electorate results in a scrutinizing body which can review legislation in depth and free from the political and procedural controls as in HOC. The HOL proves to be more of a legitimate constitutional safeguard, rather disrespect to social equality as claimed by many. The HOL initiates the public and private bills. The HOL also performs the function of consideration of delegated legislation by scrutinizing bills with the view to establish the extent of legislative powers which parliament intends to delegate to government ministers. In other words it can be said that HOL also performs the function of scrutiny of executive.HOL also scrutinizes the private legislation. The HOL my establish select committees which are ad hoc committees to conceder matters of public importance and in depth consideration of bills. HOL reports the compatibility of bill with convention rights protected under HRA1998.

The next step to answer this question is to discuss the composition of the HOL. HOL is unelected some claim this satiation inconsistent, undemocratic and old-fashioned in a democratic society. But the advantage of an unelected chamber lies in its lack of accountability to the government of the day and the electorate. There is a considerable proportion of independent peers or cross benchers who owe no political loyalty to any party. This enhances the value of the work by HOL. The first part of composition is of hereditary peers. Hereditary peers are created under the prerogative of queen on the advice of PM. There were 759 peers, comprising around 60% of the total members of HOL. Under the HOL act 1999 the rights of most hereditary peers were removed with the government allowing 92 peers to remain until the second stage of reforms takes place. Another important part of composition of HOL is of life peers. In 1998 there were 461 peers. The award of peerage is one of the highest owners conferred in UK. They are conferred by the crown on the advice of PM. There is however, much evidence to suggest

That the system of appointment of life peers is used politically by the government which undermines the legitimacy and independence of HOL. The next part is of judicial peers which consist of all the law lords and people of legal expertise. Under CRA 2005 this part of composition is no more part of HOL, as in October 2009 the new Supreme Court was separated from HOL with its all judicial functions, and now have its own appointment system. The last part of composition is of lords spiritual. This consists of 26 archbishops of the Church of England sit in HOL.

The next point to be discussed is how the attempts are been made to strike balance between House of Commons and House of Lords. Prior to the parliament act 1911

The HOL and HOC enjoyed the same powers over legislation, with exception of financial measure which was with HOC. A conflict between HOL and HOC resulted in passage of parliament act 1911. It abolished the HOL right to reject money bills and imposed one month time limit during which HOL may consider such a bill and proposed amendments.

These amendments can either be accepted or rejected by the HOC. If the amendments are not being proposed within one month the bill will directly go for royal assent without approval of commons. Regarding non money bill, the right to rejection of bill was replaced by power to delay the bill for two years periods, over three parliamentary sessions. Then comes the parliament act 1949, which reduced the power of HOL to delay over non money bills from two years over three sessions to one year over 2 sessions, after this period if the HOL rejected a bill twice or amend it in a manner which is not up to scratch to the HOC, the government may directly go for the royal assent. Under the 1911 act the lords have the power to block any attempt by the parliament to increase its life. This is seen as a constitutional backstop against impending abuse of the power by government. These two acts have been used once in a blue moon, on occasions such as act 1949, the govt of Ireland act 1914, welsh church act 1914, the sexual offences 2000 and hunting act 2004. In Jackson v AG it was held that purpose of 1911 act was not to enlarge the powers of HOC or to delegate powers to it, but to restrict the powers of HOL to defeat measures supported by commons.

The next and most important point to be discussed to answers the question is of the reforms that opponents of HOL had focused on the chamber which according to them is undemocratic and old fashioned, preamble to the 1911 act envisaged replacing the HOL with an elected house. In parliament act 1911 the power to veto money bill was removed, moreover the HOC was given power to overrule the non money bill after 3 sessions. The parliament act 1949 amended 1911 act and reduced the power of HOL to dely a bill from three sessions to two. In life peerage 1958 the leave of absence was introduced for those who did not attended the house regularly. Almost all the peerage was turned to life peerage. As it was said that rights and honors were not be hereditary. Peerage act 1963 allowed the hereditary peers to disclaim there peerage and can vote and stand for elections. The white paper of 168 suggested that, there should be two tier houses, the first consist of 230 voting peer and second consists of peers who could attend only. The hereditary peerage was to be removed, and govt shall have small majority of voting peers in HOL. Power of delay to be reduced to 6 months. It is important to note that that in 1978 the labor party issued a statement which said, that HOL was an outdated institution and proposed the ablution of the second house. The labor discarded its stance in 1992 and proposed two stage reforms. First the removal of hereditary peers and second part of reform was regarding the composition and powers of HOL. In 1999 HOL act was passed. 92 hereditary peers were retained; this was till the second stage of reform. The ultimate goal is to reform the Hl with elected house with proportional representation. Then comes the       

Wakeham Commission Report. The main focus of this commission was to move forward to the second stage of reform without any disturbance of HOC supremacy. The report said that the upper house should comprise a majority of nominated members and minority of elected members. In relation of composition thee models were given, model B which said that 87 members directly elected at the same time as the European parliament under proportional representation. For the nomination of house an independent appointment commission was to be established.20% of member to be associated to one major party. To achieve gender balance 30% of new members were to be women. Regional members to serve for 15 years term and ample steps should be taken regarding attendance in parliament. With this it is important to discuss briefly Constitutional Reform Act 2005. According to CRA2005 HOL to select its own speaker, all judicial functions have been separated with new Supreme Court and new judicial appoint commission has been created. 

By above discussions it can be said that, a precipitous abolition of the House of Lords would leave a constitutional vacuum. However, it can be suggest that the problem is not impossible. A written constitution and a constitutional court to enforce it would go a long way towards limiting the likelihood of the Commons passing irrational and illogical legislation. Perhaps a second chamber with a modified composition would be a better alternative than outright abolition, but many people believe that even abolition would be preferable to leaving things as they are. Of the various systems of selection that have been proposed for the reformed second chamber, none are without their problems, and none stands out clearly from the others as the best on its merits. The most cogent arguments seem to favor a second chamber that is directly elected by proportional representation, with each member serving for between 10 and 15 years. As American constitutionalist said that                                                                                                                                                                            ‘’ A strong secret check lies in the core of the HOL’’.

The HRA 1998 is being used for purposes not originally intended by its proponents.’

The introduction of the HRA in 1998 saw the development of a then unique model for incorporating the European Convention on Human Rights (ECHR) into UK law. Reflecting international debate on the legitimacy of unelected judges taking sole responsibility for interpreting the broad values which characterize Bills of Rights, the distinguishing feature of this model was that it worked with the grain of British constitutional traditions in envisaging a significant role for Parliament. The most unique and widely commented upon aspect of the HRA is that whilst it is intended to operate as a higher law, to which all other laws and policies must conform where possible, the Act does not allow courts to strike down statutes in the manner of judicially entrenched Bills of Rights. In so far as the HRA allows courts to review and declare incompatible Acts of Parliament, it refines the British constitutional doctrine of parliamentary sovereignty, but it clearly does not overturn it. Unlike many Bills of Rights or equivalent, therefore, the scheme of the HRA directly engages Parliament. This intention was stated in terms from the outset. Bringing Rights Home, the consultation paper produced by the Labor Party in 1996 to foreshadow the HRA, stated that “Parliament itself should play a leading role in protecting the rights which are at the heart of parliamentary democracy”.[1] Former Lord Chancellor, Lord Irvine, remarked in 2002, two years after the HRA came into force, that the Act represents a “new and dynamic co-operative endeavor … between the Executive, the Judiciary and Parliament; one in which each works in its respective constitutional sphere ”. Lord Steyn maintained in R. v A that unless a clear limitation on Convention rights is stated in terms it should be possible to interpret an Act compatibly with the ECHR. Lord Hope disagreed. He argued that you have to look at the meaning and purpose of an Act as a whole, not just any express intention on behalf of Parliament as to whether it is possible to interpret a statute compatibly with Convention rights or not. On this basis, he thought the reinterpretation his fellow judges made to the post-HRA rape shield provisions in the case of A turned the will of Parliament on its head. It reinstated most of the judicial discretion which the new Act sought to remove on when to admit evidence of a woman's sexual history with the defendant.

Hart provides a more refined positivist account which, for analytical purposes, is salient to section 3(1). Both sections 3(1) and 4 can be said to eradicate the positive and, to a lesser extent, the negative, limbs;  the ECHR principles supersede Parliamentary Acts as the highest form of law, section 3(1) interpretation is a limit on parliamentary enactments, and the courts, though unable to challenge the legality per se of Acts of Parliament, are enabled to challenge their legitimacy. The rule of law is thus now much wider than under Dicey's construct, and incorporates both procedural and substantive elements by resort to a higher body of law. Section 3(1) therefore changes the previously prevailing situation that in Britain ‘the Rule of Law is not judicial, it is parliamentary’.[2] For example, in Ghaidan v Mendoza, the House of Lords held that ‘a person living with the original tenant as his or her wife’, could, in accordance with section 3(1), be read as extending to same-sex partners. Whilst the language precluded statutory protection for homosexual partners, the procedure of section 3(1) enabled the substance of the Article 8 and 14 ECHR rights to prevail. Section 3(1) is thus a substantive moral rule of law because it prioritizes moral concepts over language.

The distinction between interpretation and legislation also precludes the use of section 3(1) if it would undermine a fundamental feature of an Act. In Re S, use of section 3(1) by the Court of Appeal led to the creation of a new procedure which allowed the court to retain a supervisory role over children who are the subject of care orders, even though Parliament's intention was clearly to entrust this responsibility to the local authorities. Here it is clear that the self-created supervisory role of the courts was inconsistent with a crucial aspect of the Act, and a range of rights and liabilities not sanctioned by Parliament[3] had been introduced.

According to Sir Rupert Cross's classic work on statutory interpretation, the fundamental rule of statutory interpretation is that ‘words should generally be given the meaning which the normal speaker of the English language would understand them to bear in the context in which they are used’. Moreover, judges will interpret statutory provisions by reference to the sense which an informed legal interpreter would give to them in the context in which they are used. Thus, courts give effect to the (enacted) intention of Parliament by giving the statutory text its ordinary or technical meaning of the statutory words. However, we are well aware that when judges interpret statutes, they rely on at least two other notions which is labeled ‘the intention of Parliament’. The first is the ‘general legislative purpose underlying the statutory provision’. The second is Parliament's ‘presumed intentions. The purpose in question can be manifest in the language of the statute itself as a matter of logic. However, the legislative purpose will not always be manifest in this way and must then be elicited from a consideration of the statute as a whole and the context in which it was enacted. So, for example, when enacting the HRA, Parliament intended to make Convention rights directly enforceable as part of domestic law. This is part of Parliament's enacted intention. But Parliament may have also intended the HRA to satisfy a further legislative purpose, such as minimizing the number of British cases coming before the ECtHR.

What appears to be a sharply contrasting approach was taken in R. v Secretary of State for the Home Department Ex p. Anderson.[4] There a declaration of incompatibility was made on the ground that a power conferred on the Home Secretary by s.29 of the Crime (Sentencing) Act 1997 to control the release of mandatory life sentence prisoners was inconsistent with the right to have a sentence imposed by an independent and impartial tribunal. Their Lordships refused to interpret s.29 so as to modify its impact. Lord Bingham said that it could not be doubted that Parliament intended to do what it had enacted in s.29 and to read the section as precluding the Home Secretary's action would not be judicial interpretation but judicial vandalism. It would give the section an effect quite different from that which Parliament intended.

Lord Steyn here seemed equally determined to hold fast to the lynchpin of parliamentary intention. He declined to read what he described as “alleged convention rights” into s.29. It would, he said, be interpolation, not interpretation and would be inconsistent with the plain intention of the legislature. Section 3(1) of the Human Rights Act was not available when the suggested interpretation was contrary to express statutory words. Nothing here (unlike R. v A ) about a strong interpretative adjuration to read down the text or to imply provisions into it, or to stretch or strain it in the pursuit of convention conformability. The interpretative route could no doubt have been followed by some such stratagem as inserting “not”, or some suitable modificatory phrase into s.29 of the 1997 Act. This might seem to involve interpolation or reading in of words that were not there, because Parliament did not use the word “not”. But then, in Mendoza v Ghaidan Parliament did not use the words “as if they were” which, whether vandalistically or not, the court was willing to insert into the rent legislation. Of course, if the lynchpin of parliamentary intention has been removed it cannot be a decisive consideration what words Parliament has used or what the most plausible interpretation of their intention was. What should matter is what possible meaning the words might have conveyed that would conform their intentions to the requirements of Convention rights. However, it seems that the parliamentary lynchpin, if loosened, has only been loosened so far. As to reading and interpretation, it is noticeable that where, as in Canada, legislation may be invalidated and treated as having no legal effect by reason of its incompatibility (“characterization incompatibility”, that is) with constitutional rights, it has not been found necessary to reconstruct the rules of statutory interpretation as a consequence of the introduction of the Charter of Rights and Freedoms. What a statute means is properly seen as a separate issue from its constitutionality vis-à-vis the Charter. Courts may in some cases read down a statutory provision to preserve its legality. But this is a limited expedient that is applied only where the language of the statute will bear the wider and narrower meanings. It is not a general recipe and license for straining meaning where no ambiguity exists.[5]

For now, it is clear that the HRA is a hybrid. It is the nearest thing to a Bill of rights that we have in this country and has served us well, as a recent report by Justice notes,[6] but the interpretation of the substantive rights set out in it is now firmly anchored to what Lord Kingsland called the ‘international moorings’ of the jurisprudence of the European Court of Human Rights. Some have concluded from this development that this should lead this country now to proceed to enact its own British Bill of rights. But, tempting though it would be to embark on that debate now, that is a matter for another day.

Bibliography

Primary Sources:

·         R. v Secretary of State for the Home Department Ex p. Anderson[2002] UKHL 46.

·         Ghaidan v Mendoza[2004] UKHL 30

·         R v A[2001] All ER (D) 215

Secondary Sources:

·         H. Finer, The Road to Reaction, (London: Dennis Dobson, 1946) , p.38..

·         cf. G. Marshall, “Two kinds of compatibility: more about s.3 of the Human Rights Act 1998” [1999] P.L 377

·         Report of the Justice constitution committee, ‘A British Bill of Rights: Informing the Debate’ (2007) 15.

·         Francesca Klug, “The Klug Report: Report on the Working Practices of the JCHR”, published in The Committee's Future Working Practices, Twenty-Third Report, Session 2005-06.

·         Geoffrey Marshall, The lynchpin of parliamentary intention: lost, stolen or strained?, 2003, P.L., Sum, 236-248

·         Rabinder Singh, Interpreting bills of rights, Stat. L.R. 2008, 29(2), 82-99.

·         Sandra Fredman, ‘From deference to democracy: the role of equality under the Human Rights Act 1998,’ [2006] 122 L.Q.R. 53-81

·         Joanna Miles, ‘Standing under the Human Rights Act 1988: theories of rights enforcement and the nature of public law adjudication’ [2000] 59(1) C.L.J. 133-167

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[1] Francesca Klug, “The Klug Report: Report on the Working Practices of the JCHR”, published in The Committee's Future Working Practices, Twenty-Third Report, Session 2005-06.

[2] H. Finer, The Road to Reaction, (London: Dennis Dobson, 1946) , p.38..

[3] Wilkinson ( n 38) Ibid. , at 35..

[4] [2002] UKHL 46.

[5] cf. G. Marshall, “Two kinds of compatibility: more about s.3 of the Human Rights Act 1998” [1999] P.L 377.

[6] Report of the Justice constitution committee, ‘A British Bill of Rights: Informing the Debate’ (2007) 15.