Public Law and Civil Rights - Term Paper Example

 «Public Law and Civil Rights» 1. Introduction The distribution of judicial and political powers within a state is usually decided in accordance with the local social ethics and culture; the political traditions and beliefs of the specific country are also likely to influence the relevant decision of legislators. In Britain, the 1911 Parliament Act has been considered as one of the most crucial legislative texts – setting the borders between the country’s political and judicial powers. The 1911 Parliament Act set restrictions in the absolute – up to then – power of the House of Lords to intervene in the establishment of all judicial texts in Britain; the House of Lords membership has been also set under discussion through the 1911 Parliament Act. Since then, a series of similar texts were developed. The Parliament Act of 1949, the Life Peerages Act of 1958, the House of Lords Act 1999 and the Wakeham Report in 2000 are indicative texts of such content. The reform developed from 1911 up today in regarding to the House of Lords membership is examined in this paper; the existing legislation and the case law are critically examined – using also the relevant academic literature in order to evaluate whether the progress made in the specific field is important or not. It is concluded that the level of the Parliamentary Reform in regard to the House of Lords membership has been satisfactory; however, additional measures should be introduced ensuring the clear distinction of judicial-legislative powers and the fairness in the access to the country’s key legislative Bodies. 2. The reform of House of Lords membership since the 1911 Parliament Act 2.1 Parliament Act of 1911 Through the Parliament Act of 1911 an important constitutional issue has been set: the hegemony of the House of Lords within the English legal system. The specific Act introduced a radical change in regard to the powers of the House of Lords within the British legal and political systems; it was mainly through the 1911 Parliament Act that the power of the House of Lords to keep its hereditary character was doubted – a thesis that had been avoided in the previous – major – legislative text that defined the British political and legal framework: the Great Reform Act of 18321. The 1911 Parliament Act introduced a series of rules that would ensure the increased power of the House of Commons compared to the House of Lords; for instance, in the context of the 1911 Parliament Act it was clearly defined that no political party would have the chance to form a government unless it has ‘the majority of members of the House of Commons’.2 However, in the 1911 Parliament Act there was no clear reference to the terms of the House of Lords membership. Rather, the doubt of the exclusive power of the House of Lords as judicial/ legislative body could be identified. One of the most important changes introduced with the above Act was the fact that ‘a Money Bill could receive Royal Assent without the approval of House of Lords if a month is passed without an amendment to be suggested by the House of Lords’.3 The above Act made the start – even not clearly – for important Parliamentary Reforms – including the House of Lords membership. Since the introduction of the 1911 Parliament Act the continuation of reform on the House of Lords status, especially the House of Lords membership has been set as a target of a primary importance. The relevant initiatives are analytically presented below: reference is made to the legislative texts introduced in regard to the House of Lords membership and the plans of action developed by the British government in regard to the specific subject. 2.2 The current framework in regard to the House of Lords membership – development of the reform from 1911 Parliament Act onwards In order to understand the importance of changes introduced in regard to the House of Lords membership it would be necessary to describe the structure of the specific Legislative/ Judicial Body – including the terms under which its members have acquired their membership. In the study of Barnett (2009) it is explained four different categories of members can be identified in the House of Lords: there are the hereditary members – known as ‘peers’, the life members (or else ‘life peers’), the judicial members and the spiritual members.4 Hereditary peers are those who have not been elected as members but they have acquired the House of Lords membership by inheritance. After the introduction of the House of Lords Act 1999 most of these peers lost their right to sit in the House of Lords. Life peers are those who have the House of Lords membership for their life – ‘the life peerage was a scheme introduced with the Life Peerage Act 1958’5. As for the spiritual members, they are the spiritual leaders of Britain – for instance, the Archbishop of Canterbury and other bishops among the country. Finally, there are the judicial members, i.e. the judges ‘who were appointed under the Appellate Jurisdiction Act 1886’6. In order to ensure the credibility of the legislative texts developed by the House of Lords, the Constitutional Reform Act 2005 stated that ‘only retired judges can have the House of Lords membership’7. The House of Lords has a key position in the English legal system; for example, in accordance with the existing legislative practice, in order for any Bill to become a Parliament Act it needs to have the approval of the Houses of Parliament. Another critical requirement for the completion of this process is that the Royal Assent is given. At this point, the Bill has ‘to be presented to the House of Commons and the House of Lords before being presented for the Royal Assent’.8 In accordance with Barnett et al. (2010) the traditional form of the House of Lords does not refer to selected Committees – the specific judicial body is traditionally based only on ad hoc committees. However, since 1974 the need for the development of sessional Committees was made clear; these Committees would deal with issues related with the application of the European Law;9 in these Committees there are positions covered by persons hired for the specific tasks – i.e. in this case, the hereditary system of House of Lord membership is not applied. It is acceptable for individuals who are not hereditary members of the House of Lords to participate – in case that there is need for specific expertise.10 Other initiatives of such type are presented in the study of McKay et al. (2010); in accordance with the above study, since the 1911 Parliament Act the power of the House of Lords started to be decreased; indications of this decrease have been the following events/ initiatives: ‘the election of the Upper House by the Commons in regional groupings, nomination by the government, the introduction of the Parliament Act of 1949 and the introduction of life peerages in 1958’.11 The Reform of the House of Lords membership has been set as a priority from the Labour Government in Britain in 1997. The criteria used for the House of Lords membership have been considered as unfair.12 Primarily, a Royal Commission was established that would supervise the whole process. Then, two different plans were applied in regard to the completion of the Reform of the House of Lords membership: The first plan involved in the introduction of a legislative text that would promote changes in ‘the right of the majority of hereditary peers to sit in the House of Lords’.13 At the next level, in 2001, a framework referring to the details of the completion of this project had to be introduced: this framework has been entitled as the White Paper;14 the White Paper aimed to further support the Reform of the criteria that were traditionally used in regard to the House of Lord Membership. However, in practice, this White Paper was proved as rather ineffective; in accordance with the White Paper’s terms, the number of members who would be directly elected had to be lower compared to the number of hereditary members.15 The role of the House of Lords Act 1999 in the Reform of the House of Lords membership is also discussed in the study of Bradley et al. (2007); in the above study it is made clear that the above Act helped towards the control of the participation of the hereditary peers in the House of Lords – in fact, in the specific Act no membership right is recognized for the hereditary peers.16 However, the problem is that this exclusion does not refer to all hereditary peers. In accordance with Bradley et al. (2007) an agreement has been developed between the House of Lords and the government. In the context of this agreement it was accepted by the government that ‘90 hereditary peers would keep their right to sit in House of Lords up to the completion of the Reform’.17 Although the above process would guarantee the fairness of the relevant governmental initiative, still, problems exist that need to be resolved. The 90 hereditary peers were chosen randomly – among those who are members of the House of Lords. However, through the exclusion, an important provision of the Treaty of Union has been violated: in accordance with this Treaty, at least 16 Scottish peers have to participate in the House of Lords. Through the – random – exclusion of the hereditary peers the number of Scottish peers in the House of Lords was reduced more than permitted – referring to the Treaty of Union provisions. The House of Lords did not accept the above claim on the basis that the Treaty of Union cannot set rules that set limits to the power of the British Parliament.18 In accordance with Bevir (2010) the Reform of the House of Lords membership has not been an easy task for the Labour government – which governed the country in 1999, when relevant initiatives were undertaken. Despite the strong oppositions from the Lords, the Reform was developed in two major phases: primarily through the House of Lords Act of 1999 and the Constitutional Reform of 2005. The changes introduced by these legislative texts – as explained analytically above – have led to the following result: ‘the House of Lords is now governed by – approximately – six hundred life time peers’.19 There are of course the ninety-two hereditary peers who also sit in the House of Lords – in the context of the agreement made between the government and the House of Lords, as noted above. The two Reforms initiated by the Labour Government in regard to the House of Lords status – referring to the House of Lords Act 1999 and the Constitutional Reform of 2005 – are differentiated at the following point: the former focuses on the House of Lords membership while the latter also refers to the House of Lords powers – as a judicial/ legislative body. This differentiation is explained by the following fact: after the introduction of the House of Lords Act 1999, the British government had to check the effectiveness of the attempted Reform. For this reason, a royal commission was established in order to examine the progress of the Reform and the required changes – i.e. those changes that should be additionally introduced regarding the House of Lords membership and structure.20 In 2000 the above commission – known as Wakeham Commission due to its supervision by Lord Wakeham – produced a report through which the following changes were suggested: ‘a) elimination of the honors system and party patronage and b) introduction of an elected element – along with the nominated element – for the Upper House’.21 Through the changes suggested above, the effectiveness of House of Lords, as a judicial/ legislative body, would be highly increased. The importance of the Reform in regard to the House of Lords membership is revealed through the study of Baldwin et al. (2001). In accordance with the above study, before the House of Lords Act 1999, the House of Lords could be categorized as one of the most populated legislative/ bodies internationally. Its members were approximately 1200, a fact that caused severe delays in the completion of emergent legislative or judicial tasks.22 Other legislative texts that were also used in order to arrange various issues on the House of Lords membership have been the following ones: a) the Leave of Absence of 1958 (through which peers who cannot attend the House are suggested to take a Leave of Absence)23, b) the Peerage Act 1963 – through which the following changes were introduced: female hereditary peers were allowed to attend the House, it was set that a minimum of 16 Scottish peers had to attend the House; furthermore, it was noted that hereditary peers ‘can be disclaimed for life’.24 In 2002, after the introduction of the White Paper in 2001 (as explained above), the government decided to establish a Joint Committee on the House of Lords Reform for identifying the further changes required on House of Lords structure.25 The suggested changes are presented in the Table 1 below. Option 1 Fully appointed Option 2 Fully elected Option 3 80% appointed, 20% elected Option 4 80% elected, 20% appointed Option 5 60% appointed, 40% elected Option 6 60% elected, 40% appointed Option 7 50% appointed, 50% elected Table 1 – Suggestions of the Joint Committee on the House of Lords Reform (2002), source: The Stationery Office, 2007, p.17 It is made clear that the powers and the structure of the House of Lords are difficult to be controlled or alternated – being related with the English legal traditions and characteristics. Even under these terms, the hereditary character of the House of Lords membership cannot be completely justified. Moreover, the specific process can be considered as opposed to the independency of justice; the above view can be explained using the following series of thoughts/ events: as noted above, the House of Lords has a key role in the verification of legal texts – its consent is required – among the consent of the House of Commons in order for a Bill to take the Royal assent. In this way, the House of Lords intervenes in the development of legislation; at the same time, the House of Lords has judicial power – to hear the cases brought before this Court – if they meet the requirements stated by the law; this means that the members of the House of Lords have simultaneously the power to legislate and the power to rule in a case; in this way, the validity of their rulings or their legislative choices would be possibly doubted – mostly because a conflict of interests could exist. The hereditary character of the House of Lords membership has another implication: a significant part of the power of legislation in regard to the laws which constitute the English legal framework belongs to specific families; in this way, the public’s role in the development of legislative texts is limited – referring to the House of Commons and the Houses of Parliament interventions in the process of verifying a Bill – in order to become a Parliamentary Act. 3. Conclusion The structure and the operational rules of House of Lords have been clearly set through the British Constitution; these rules cannot be changed or alternated unless a reform of the British Constitution is initiated; in practice, alterations on the House of Lords membership have been introduced. The 1911 Parliament Act has been the legislative text that first introduced the specific trend. The legislative texts that followed – such as the Peerage Act of 1963 and the House of Lords Act 1999 introduced important changes in the House of Lords Membership. However, the process of reforming the House of Lords structure has not ended. In fact, additional initiatives are required in order for the Reform on House of Lords status/ membership to be effective; the achievement of this target could be made clear primarily through the increase of the volume of legislative/ judicial tasks developed by the peers. References Baldwin, N., Shell, D. (2001) Second chambers. Routledge Barnett, H., Jago, R. (2010) Constitutional and Administrative Law. Taylor & Francis Barnett, H. (2009) Understanding Public Law. Taylor & Francis Bevir, M. (2010) Democratic Governance. Princeton University Press Bradley, A., Ewing, K. (2007) Constitutional and administrative law. Pearson Education Carmichael, P., Dickson, B. (1999). The House of Lords: its parliamentary and judicial roles. Hart Publishing Elliott, C., Quinn, F. (2008) English legal system. Pearson Education Elliott, C. (2006) English legal system sourcebook. Pearson Education McKay, W., Johnson, C. (2010) Parliament and Congress: Representation and Scrutiny in the Twenty-first Century. Oxford University Press Minogue, M. (1977) British government and constitutional change. CUP Archive Slapper, G., Kelly, D. (2006) The English legal system. Routledge The Stationery Office (2007) The House of Lords: reform. The Stationery Office The Stationery Office (2007) The House of Lords: reform. The Stationery Office Online sources BBC News, 2001, House of Lords Reform, online, available from http://news.bbc.co.uk/news/vote2001/hi/english/main_issues/sections/facts/newsid_1214000/1214416.stm HM Government, 2007, The House of Lords Reform, online, available from http://www.official-documents.gov.uk/document/cm70/7027/7027.pdf Maer, C., 2010, Reform of the House of Lords: the Coalition Agreement and further developments, House of Commons Library, online, available from http://www.parliament.uk/documents/commons/lib/research/briefings/snpc-05623.pdf Politics, Britain, 2005, House of Lords Reform, online, available from http://www.politics.co.uk/briefings-guides/issue-briefs/legal-and-constitutional/house-of-lords-reform-$366545.htm Read More