In the context of the comment I made on the House of Lords and the threat that Theresa May might pack that House with New Tory peers I had this twitter thread by George Peretz QC published on 2 January drawn to my attention. I thought it worth sharing. I apologise for it being in reverse order: start at the bottom and work up (and if the formatting is untidy, I apologise: there is the day job to do as well):
George Peretz QC (‪@GeorgePeretzQC‬)36. Views tentative at this stage. But this is a topic well suited for legal Twitter. Fire away! |
35. So, I would suggest, the appointment of new peers solely to railroad through legislation without resorting to the Parliament Acts could not just be contrary to convention but be unlawful and subject to legal challenge. |
34. That power that is, in any event, highly dubious in any constitutional arrangement where there is any attempt at separation of the powers. |
33.Here, the statutory scheme is the Parliament Acts. Those Acts displace the prerogative power to create peers with the avowed purpose of altering the make-up of the legislature. |
32.The point here is a familiar one, dating from the famous De Keyser case. Where there is a statutory scheme to deal with a problem, the royal prerogative gives way. |
31.The Parliament Acts are, as Lord Bingham observed, designed to make such action unnecessary. If the Government with a HoC majority wishes to enact legislation in a form unacceptable to the HoL, those Acts provide the route that should be used. |
30. Since the GCHQ case it is clear that acts of the Royal prerogative can be judicially reviewed. |
29.It is also, I would tentatively suggest, quite possible that the appointment of new peers simply in order to force through controversial legislation without having to use the Parliament Acts would be unlawful, and could be judicially reviewed. |
28. It is not something that should be done or threatened in anticipation of problems that have not yet arisen. |
27.Further, given the need to avoid the Queen being asked to take any decision that is politically controversial, the PM is, I'd suggest, required to try all other approaches before seeking to employ the creation of peers as a device to overcome potential obstacles in the HoL. |
26.As to the point that the Parliament Acts can't in practice be used here, that is the consequence of the Government's own decisions (as to the single session and as to the timing of the A50 notification which creates the urgency): it shd not affect the constitutional position. |
25. For the Queen to be obliged accede to such a request by her PM would, arguably, unbalance the constitution by giving the executive a wholly improper degree of control over the legislature. |
24.If the HoL's refusal to pass a Bill save with certain amendments is unacceptable, the answer is to use the Parliament Acts, not to pack the HoL with new peers. |
23. Those doubts are perhaps even stronger where the PM has not managed to win a majority for her party's programme. |
22.The UK constitution has few enough checks and balances against what Lord Hailsham memorably called the elective dictatorship of a PM with a HoC majority. The HoL is one of them. |
21.Standing back, it is not surprising that there should be some doubt as to whether the Queen is obliged to accede to a request by her PM that, in effect, substantially affects the composition of one of the legislature and does so in a way that suits the Government of the day. |
20.The doubt is, indeed, implicit in the language used by Lord Bingham: it is the fact that there could be some doubt as to what the Queen should do that makes her decision necessarily political. |
19.The lesson from that is that it was not regarded as entirely obvious what the duty of the King was when asked by a PM to create enough peers to get a Bill through the HoL in a form acceptable to the Government. |
18.The HoL then backed down and passed the Bill. |
17.At that point, the Government (with the King's agreement) told the Opposition that the King would agree to create enough peers. This came as a shock to some of the Opposition. The King had however been reluctant to allow this threat to be made any earlier. |
16.After the Asquith Government was re-elected, the Bill passed the HoC again, and was effectively rejected by wrecking amendments, again, by the HoL. |
15.The King received conflicting advice from his private secretaries. In the end, he agreed to give such a promise (partly because he was told, wrongly as it happened, that Balfour, who was then Leader of the Opposition, wld refuse to form a government if Asquith then resigned) |
14. That election was to be fought on the very question of whether the HoL should pass the Parliament Bill (which it had just rejected). |
13. The King was first asked by PM Asquith, in November 1910, to give a contingent but secret promise conditional on the Government winning the proposed general election of December 2010. |
12. It was not, however, regarded as inevitable that the King would agree to create enough peers to get the Bill through. The history is explained in detail in Roy Jenkins' great history of the constitutional crisis “Mr Balfour's Poodle”. |
11. That threat did though have to made in 1910/11 in order to get the HoL to pass the Parliament Bill (which became the 1911 Act). |
10. Lord Bingham observed that one of the purposes of the Parliament Acts was, precisely, to obviate the need for any such threat. |
9. Ld Bingham in Jackson [2005]UKHL56, 25: the threat “was a procedure necessarily unwelcome to a constitutional monarch, rightly anxious to avoid any appearance of participation in politics, and one which constitutionally-minded politicians were accordingly reluctant to invoke” |
8. Since 1911, no Government has had to employ this threat. None have had to. The Parliament Acts enabled measures opposed by the Lords to become law anyway. On matters ranging from Irish Home Rule to the ban on fox-hunting. |
7. Would such a step be constitutional, however? (A difficult term in the U.K. context: it doesn't necessarily mean “challengeable in Court”: there are conventions that are not.) |
6. So the Government may consider either creating enough new peers to give it reliable support on all important votes, or threatening to create peers if the HoL votes for amendments unacceptable to the Government. |
5. That is because the Parliament Acts apply only where the HoC passes effectively the same Bill in two successive sessions. |
4. But the effect is to make it impossible to use the Parliament Acts in order to get a Bill enacted that has been passed by the HoC but rejected (or amended in a way unacceptable to a HoC majority) by the HoL |
3. The decision to have one long session (2017-19) is a decision of the Government: it is the Crown that prorogues Parliament (brings a session to an end) and then opens a new session. |
2. The problem the Government has created for itself is that the current parliamentary session, which started last year, will carry on until 2019 — after the planned Brexit day. |
1. It has been suggested that the Government wants to create enough new peers to ensure that the EU Withdrawal Bill passes through the HoL unscathed. |
George Peretz QC (‪@GeorgePeretzQC‬)A thread about the potentially very topical subject of the creation of new peers to get controversial legislation through the House of Lords. |
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https://threadreaderapp.com is a great Twitter ‘unroll’ service, and you can find George Peretz’s tweets in the order of writing at https://threadreaderapp.com/thread/948272984879484928.html
Thanks
The tentative opinion expressed here seems pretty convincing. Short of a surprising royal enthusiasm for ‘Brexit’, May would appear to be very exposed to the potential judgement of the Lords and effectively cut off from the comforts of a Parliament Act whose applicability is in any case undermined by her lack of a popular/parliamentary majority for her legislative programme. Particularly piquant are the – doubtless unintended – consequences of May’s very personal decisions – the botched General Election, parliamentary programme (single session) and scamper after Article 50. This hapless PM and her delusional government are in this matter, as in so much else, so clearly out of their depth as to be almost pitiable. To see their manoeuvres set in the context of the wily politicians of the 1910/11 crisis makes their ineptitude still clearer.
Agreed
I agree with all that but what genuinely puzzles me is how Prime minister May can time after time make statements that are demonstrably untrue or renege on ‘promises’ such as money to be made available for ‘essential’ works (http://www.bbc.co.uk/news/uk-41537022). Why is there not an outcry or challenge when she and her ministers appear in the media? I feel that I am living in some sort of alternative universe where black is white!
Here’s a link to the full thread in time order:
https://threadreaderapp.com/thread/948272984879484928.html
Thanks
Very interesting indeed and thank you for sharing.
I still think that May will just ‘try it on’ anyway. After all – she is desperate to make use of the BREXIT vote to keep the Tories in power.
Many thanks for this most useful set of tweets. Here they are in serial order thanks to BlueService freeware from Devontechnologies http://www.devontechnologies.com/download/products.html – Mac only I think as it exploits features of the Mac OS X’s Unix core:
1. It has been suggested that the Government wants to create enough new peers to ensure that the EU Withdrawal Bill passes through the HoL unscathed.
2. The problem the Government has created for itself is that the current parliamentary session, which started last year, will carry on until 2019 — after the planned Brexit day.
3. The decision to have one long session (2017-19) is a decision of the Government: it is the Crown that prorogues Parliament (brings a session to an end) and then opens a new session.
4. But the effect is to make it impossible to use the Parliament Acts in order to get a Bill enacted that has been passed by the HoC but rejected (or amended in a way unacceptable to a HoC majority) by the HoL
5. That is because the Parliament Acts apply only where the HoC passes effectively the same Bill in two successive sessions.
6. So the Government may consider either creating enough new peers to give it reliable support on all important votes, or threatening to create peers if the HoL votes for amendments unacceptable to the Government.
7. Would such a step be constitutional, however? (A difficult term in the U.K. context: it doesn’t necessarily mean “challengeable in Court”: there are conventions that are not.)
8. Since 1911, no Government has had to employ this threat. None have had to. The Parliament Acts enabled measures opposed by the Lords to become law anyway. On matters ranging from Irish Home Rule to the ban on fox-hunting.
9. Ld Bingham in Jackson [2005]UKHL56, 25: the threat “was a procedure necessarily unwelcome to a constitutional monarch, rightly anxious to avoid any appearance of participation in politics, and one which con
10. Lord Bingham observed that one of the purposes of the Parliament Acts was, precisely, to obviate the need for any such threat.
11. That threat did though have to made in 1910/11 in order to get the HoL to pass the Parliament Bill (which became the 1911 Act).
12. It was not, however, regarded as inevitable that the King would agree to create enough peers to get the Bill through. The history is explained in detail in Roy Jenkins’ great history of the constitutional crisis “Mr Balfour’s Poodle”.
13. The King was first asked by PM Asquith, in November 1910, to give a contingent but secret promise conditional on the Government winning the proposed general election of December 2010.
14. That election was to be fought on the very question of whether the HoL should pass the Parliament Bill (which it had just rejected).
15.The King received conflicting advice from his private secretaries. In the end, he agreed to give such a promise (partly because he was told, wrongly as it happened, that Balfour, who was then Leader of the Opposition, wld refuse to form a government if Asquith then resigned)
16.After the Asquith Government was re-elected, the Bill passed the HoC again, and was effectively rejected by wrecking amendments, again, by the HoL.
17.At that point, the Government (with the King’s agreement) told the Opposition that the King would agree to create enough peers. This came as a shock to some of the Opposition. The King had however been reluctant to allow this threat to be made any earlier.
18.The HoL then backed down and passed the Bill.
19.The lesson from that is that it was not regarded as entirely obvious what the duty of the King was when asked by a PM to create enough peers to get a Bill through the HoL in a form acceptable to the Government.
20.The doubt is, indeed, implicit in the language used by Lord Bingham: it is the fact that there could be some doubt as to what the Queen should do that makes her decision necessarily political.
21.Standing back, it is not surprising that there should be some doubt as to whether the Queen is obliged to accede to a request by her PM that, in effect, substantially affects the composition of one of the legislature and does so in a way that suits the Government of the day.
22.The UK constitution has few enough checks and balances against what Lord Hailsham memorably called the elective dictatorship of a PM with a HoC majority. The HoL is one of them.
23. Those doubts are perhaps even stronger where the PM has not managed to win a majority for her party’s programme.
24.If the HoL’s refusal to pass a Bill save with certain amendments is unacceptable, the answer is to use the Parliament Acts, not to pack the HoL with new peers.
25. For the Queen to be obliged accede to such a request by her PM would, arguably, unbalance the constitution by giving the executive a wholly improper degree of control over the legislature.
26.As to the point that the Parliament Acts can’t in practice be used here, that is the consequence of the Government’s own decisions (as to the single session and as to the timing of the A50 notification which creates the urgency): it shd not affect the constitutional position.
27.Further, given the need to avoid the Queen being asked to take any decision that is politically controversial, the PM is, I’d suggest, required to try all other approaches before seeking to employ the creation of peers as a device to overcome potential obstacles in the HoL.
28. It is not something that should be done or threatened in anticipation of problems that have not yet arisen.
29.It is also, I would tentatively suggest, quite possible that the appointment of new peers simply in order to force through controversial legislation without having to use the Parliament Acts would be unlawful, and could be judicially reviewed.
30. Since the GCHQ case it is clear that acts of the Royal prerogative can be judicially reviewed.
31.The Parliament Acts are, as Lord Bingham observed, designed to make such action unnecessary. If the Government with a HoC majority wishes to enact legislation in a form unacceptable to the HoL, those Acts provide the route that should be used.
32.The point here is a familiar one, dating from the famous De Keyser case. Where there is a statutory scheme to deal with a problem, the royal prerogative gives way.
33.Here, the statutory scheme is the Parliament Acts. Those Acts displace the prerogative power to create peers with the avowed purpose of altering the make-up of the legislature.
34. That power that is, in any event, highly dubious in any constitutional arrangement where there is any attempt at separation of the powers.
35. So, I would suggest, the appointment of new peers solely to railroad through legislation without resorting to the Parliament Acts could not just be contrary to convention but be unlawful and subject to legal challenge.
36. Views tentative at this stage. But this is a topic well suited for legal Twitter. Fire away!
stitutionally-minded politicians were accordingly reluctant to invoke”
George Peretz QC (‪@GeorgePeretzQC‬)
…….ends
Thanks
If the government cannot get its legislation through Parliament, it should call a general election. Which is of course exactly what Asquith did. It would be entirely consistent with constitutional precedent for the Queen to reject a request to pack the House of Lords until the government had won a new general election (by which time it would of course be unnecessary).
I just love the idea that we have to do all this shilly-shallying in order that the monarch be not embarrassed.
It is sooooo quaint. Yet so powerful.
Thatcher was accused of wanting to take us back to the Victorian era and it seems the regression has carried on unabated until we now find ourselves in a world of Tudor politics (not to mention economics).
I was amused the other day by the irony of Philip Hammond being MP for Runnymede. Perhaps his agenda will take us back to the world before Magna Carta. (?) I have an increasing sense of living backwards through time, like Merlin.
Magic innit?
Oh! Such fun.
All rather hypothetical, as yet, but such fun.
Could the government not get around this by creating new peers who were not all Tories but included some pro-Brexit Labour and crossbenchers as well? (I doubt they would find many pro-Brexit Lib Dems, although they are probably out there somewhere). In other words May would choose peers based on their attitudes to Brexit rather than their party affiliation. If I was looking to sneak around the constitution that’s the route I’d use…
Howard
I thin k the signs are that this would fail…
It is still political bias
But let’s see
Best
Richard