In my last post, I considered the Salisbury convention - the convention that the Lords does not reject bills that have been trailed in the government's election manifesto. The Lords has never breached this convention, but it has occasionally voted down pieces of legislation.
In 2006, the parliamentary Joint Committee on Conventions enquired into how many attempts had been made to defeat government bills in the Lords at second reading in recent times. It reported that "[a]t face value" there appeared to have been 13 such attempts in the previous 25 years, 5 of which had been successful. These are paltry figures, given the countless hundreds of items of legislation which have been allowed to pass.
Of the successful attempts, only one involved a "Government flagship policy Bill" (the Mode of Trial (No 2) Bill 2000, which sought to restrict defendants' rights to trial by jury). The bill had not been trailed in the government's election manifesto. The European Parliamentary Elections Bill 1999 concerned a matter that had been mentioned in the government's manifesto - changes to the electoral system for elections to the European Parliament - but it was argued that the Salisbury convention was not breached because no mention had been made of a central feature of the legislation (the use of a closed list electoral system).
When the Lords rejects a bill, the Commons can use the Parliament Acts 1911 and 1949 to force it onto the statute book. This rarely happens. Since 1911, only 7 statutes have been enacted under this procedure:
• the Welsh Church Act 1914
• the Government of Ireland Act 1914
• the Parliament Act 1949
• the War Crimes Act 1991
• the European Parliamentary Elections Act 1999
• the Sexual Offences (Amendment) Act 2000
• the Hunting Act 2004
In every case but one (the War Crimes Act 1991), the Act in question was brought forward by or with the support of a Liberal or Labour Government, though free votes were allowed on the final two bills. Threats were made to use the Parliament Acts to pass certain other bills, including the Temperance (Scotland) Act 1913, the Trade Union and Labour Relations (Amendment) Act 1976 and the Aircraft and Shipbuilding Industries Act 1977. Again, these were measures brought forward by Liberal and Labour administrations.
The constitutional expert Rodney Brazier argued that all 7 statutes listed above "can be said to be constitutional in character, or at least to have constitutional aspects to them", though he recognised that this was something of a broad characterisation.
It might possibly be suggested either that the Lords is entitled to veto (?only) constitutional legislation (subject to the Salisbury convention) or that the Commons is entitled to use the Parliament Acts to pass (?only) constitutional legislation. Halsbury's Laws takes the view that "the Lords are constitutionally entitled to amend or refuse consent to measures which appear to them to be contrary to constitutional principles".
The House of Lords appears to have rejected only three pieces of secondary legislation since 1945: the Southern Rhodesia (United Nations Sanctions) Order 1968, the Greater London Authority (Election Expenses) Order 2000 and the Greater London Authority Elections Rules 2000.
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