Why is the Parliament Act being used so often?

By improving the House of Lords, the Government has created a situation where impasse will arise
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The Independent Online

The Parliament Acts were originally introduced out of a sense that the House of Lords had less legitimacy than the elected House of Commons, and its powers should be firmly circumscribed. The first of them, in 1911, restricted the Lords' powers to interfere with financial legislation, and made it impossible for them to do more than delay for two years a piece of legislation that the Commons had passed. Famously, the House of Lords only gave way on this when the King agreed that, in the last resort, he would create enough new peers to pass the Act.

The Parliament Acts were originally introduced out of a sense that the House of Lords had less legitimacy than the elected House of Commons, and its powers should be firmly circumscribed. The first of them, in 1911, restricted the Lords' powers to interfere with financial legislation, and made it impossible for them to do more than delay for two years a piece of legislation that the Commons had passed. Famously, the House of Lords only gave way on this when the King agreed that, in the last resort, he would create enough new peers to pass the Act.

The second, in 1949, reduced the powers still further, by limiting the period of delay to one year. Although some lawyers question the legality of the 1949 Act, since it was only passed by the use of the 1911 Act's provisions, and it is not entirely clear that the Act could be amended by the use of its own provisions, it has now been used four times.

It is the nuclear option, resorted to when argument and negotiation entirely break down, and only ever envisaged for use in extreme circumstances. It is hedged around by very precise restrictions, notably that the bill under consideration in a second consecutive parliamentary session must be the same bill that the Lords rejected a year earlier - which largely prevents major modification.

The 1949 Act's provisions were not used until 1991, to pass the War Crimes Act; an act the Lords greatly objected to, as seeming to create a category of retrospective legislation. It was not until Mr Blair's administration started, in 1997, that it has started to be used, in a way it was never intended to be, as a regular feature of parliamentary procedure; it has now been used three times under this government.

The first instance was the introduction of a list system in the European Parliamentary Elections Act in 1999; the second, slightly incredibly, was the lowering of the age of homosexual consent to 16 in 2000 - something which now seems entirely uncontroversial, so little has the predicted collapse in national moral values taken place; and now it has been used for the ban on hunting with dogs in England and Wales.

It is, surely, quite extraordinary that the extreme provisions of the Parliament Acts have been used three times in five years, after half a century in which they were only resorted to, with the utmost reluctance, once. It won't do to say that the House of Lords is simply more hostile to this government's measures, owing to its conservative majority, and needs to be tamed on a regular basis. That must have been true of the Wilson and Callaghan administrations, which never evoked the provisions of the Act. So why, at this particular point, has a possibility always envisaged as extreme become so regular a presence on the last day before prorogation?

The answer, surely, is that the two Acts were introduced in recognition of the fact that the House of Lords had lost whatever legitimacy it had been assumed to have. In 1911, and still more in 1949, no one could argue that a second house made up entirely of people who had inherited their position could exert the same power as an elected chamber. The corollary to this, surely, must be granted: if the House of Lords were ever reformed to such an extent that it did have a measure of legitimacy, then it could not be expected that it would continue to accept that it did not deserve to possess any real power.

To some extent, that is what seems to be happening. The reforms of the House of Lords have certainly been successful from one point of view. Although there is no elected mandate in the upper chamber, the loss of the vast majority of the hereditary peers and the fact that it is now mostly made up of people whose political eminence was, at some point, acknowledged means that it is starting to have more confidence in its own political role.

Of course, in most cases, the Lords will still shrug its shoulders and agree that it doesn't have the same standing as the elected chamber. But they don't necessarily accept that, simply because they are not accountable, their actions in refusing to budge from a position must be irresponsible. By improving the quality of the membership of the House of Lords, this government has inevitably created a situation where an impasse will, from time to time, arise.

The Parliament Acts don't, in my view, improve the situation. The Government's readiness to resort to these provisions may conceivably encourage the Lords to act with total wilfulness, knowing perfectly well that whatever they do or say can have no long-term effects - that, I think, was very much the tone of the Lords debates on the age of consent. On the other side, the regular appearance of the Parliament Acts may affect the real power of the House of Lords, in that the Commons may stop listening to the Lords whenever a serious difference of opinion arises, knowing that the act not only could be passed anyway, but probably will be. It's a delicate balance of forces, of decision and advice, which, in important ways, has been upset by the necessary reform of the Lords and the regular resort to the Parliament Acts.

The nuclear option is not one we want to see being used every November.

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