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07 Dec 2022

Constitution

Paolo Sandro analyses Labour’s plans to replace the House of Lords, highlighting the implications of the new ‘guardian’ role envisaged for the directly-elected Assembly which would make it it harder to change laws deemed to be ‘constitutional’. 

The long awaited report by Gordon Brown’s Commission on the UK’s Future was published earlier this week. The report is hefty, at 150 pages, and puts forward a comprehensive vision of the future of the Union.

In the lead-up and immediate aftermath to the publication of the report, the majority of the attention has been directed at Labour’s (long-anticipated) plan to replace the ‘indefensible’ House of Lords with an elected, and much smaller, second legislative chamber, representative of the different parts of the Union: the Assembly of the Nations and Regions. What became clear is that the main reason for this consequential move does not simply lie in dissatisfaction with the current Lords, but, rather, involves a deeper (at least at first glance) shake up of our constitutional arrangements.

As explicitly stated in the report, in fact, the replacement of the House of Lords with a new and democratically elected second legislative chamber would allow for the creation of a ‘mechanism to ensure that the constitutional rules of the UK are always followed in future’. This is clearly a reaction to instances in the last few years where existing constitutional conventions – which, by definition, cannot be judicially enforced – have been disregarded by recent administrations.

But it arguably also represents an acknowledgement that in the UK system constitutional rules can be relatively easily changed or circumvented, even when put on a statutory footing (as exemplified, for instance, in the case of the now repealed Fixed Term Parliaments Act).

The mechanism devised by the Labour commission is a form of procedural ‘entrenchment’: that is, making certain laws more difficult to amend or repeal than by simply passing new ordinary legislation (as is currently the case).

This would mean that a selection of ‘constitutional’ Acts of Parliament would be given a new, protected, status, and the new directly-elected Assembly would have a veto power over any changes to them, which the commission envisages could only be overcome through a further special procedural hurdle (such as, for instance, a ‘supermajority’ vote in the House of Commons).

But what would happen in the case of a bill that does not plainly amend or repeal one of the ‘protected constitutional statutes’, but could still be said to have constitutional implications? To avoid accusations of this new ‘constitutional safeguarding’ power being politicised, the commission suggests an ‘advisory’ role for the Supreme Court.

Under this proposal, the new second chamber would be obliged to refer the matter to the Supreme Court for authoritative determination of whether the constitutional protection powers are indeed engaged.

Compared to the current constitutional powers of the Lords, then, the new Assembly would lose its existing power to delay all legislation other than money bills, and instead increase its veto powers over the new category of ‘protected’ constitutional statutes.

How radical of a constitutional shake up is this? At first glance, the combination of a democratically elected (and not nominated/hereditary) second chamber with extended power of veto over a number of ‘protected’ constitutional statutes appears to be a significant constitutional innovation.

In the words of the report, this approach is seen ‘as a way of gaining for the UK many of the benefits of a written constitution while continuing to uphold the principle of the supremacy of Parliament, as there is still no law which Parliament cannot change’. Have Gordon Brown and the other members of the commission squared the British constitutional circle?

To be sure, the approach in the report is not particularly innovative at its core, given that for at least a few decades now – and certainly after the House of Lord’s decision in R (Jackson) v Attorney-General – it is widely accepted that Parliament might impose on future iterations of itself procedural (or formal) requirements to pass particular legislation. This can be now explicitly seen in the requirement of a popular vote in Scotland for the abolition of the Scottish Parliament and government, as established by the emphatic language of section 1 of the Scotland Act 2016.

‘Widely’ does not mean ‘universally’, though, as this approach – also known in constitutional scholarship as the ‘manner and form’ theory of sovereignty – cannot be reconciled with the orthodox, absolute theory of parliamentary sovereignty that has represented the bedrock of constitutional thinking and practice in this country for the last century or so. On that theory, it is a corollary of the continuous nature of the sovereignty of the British Parliament that no entrenchment of statutes is possible, not even procedural or formal ones.

So what would happen if Labour’s plan of constitutional reform were to come to fruition cannot be anticipated with absolute certainty, given that there are established lines of precedents supporting both approaches to sovereignty.

The idea of ‘protected’ constitutional statutes is also not ground-breaking in its essence. That there might be ‘constitutional statutes’ in our legal system which are intrinsically harder to amend or repeal (because any such amendement or repeal needs to be explicit as opposed to implicit) has arguably been one of the many consequences of EU membership, and it has been recognised by courts. What is innovative in the commission’s proposal is the shift from a formal (and implicit) to a procedural (and explicit) mechanism of entrenchment for such statutes.

As is often the case, then, the devil will be in the details of Labour’s ambitious plan of constitutional reform for the UK. In particular, the capacity of the new Assembly of the Nations and Regions to act as the intended ‘constitutional guardian’ will necessarily be a function of the particular rules as to its membership and election (the report only mentions that it should be chosen ‘on a different electoral cycle from the House of Commons’).

For if the party, or coalition of parties, with a majority in the Commons were to have a clear-cut majority in the new Assembly as well, we would arguably be back to constitutional square one.

Finally, and at a more fundamental level, the effectiveness of Labour’s plans will depend on the recognition and acceptance of this kind of explicit constitutional entrenchment of some Acts of Parliament by courts. This would imply parting ways, once and for all, with the orthodox model of parliamentary sovereignty famously put forward by AV Dicey.

By Dr Paolo Sandro, Lecturer in Law, University of Leeds.

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