Our constitution isn’t worth the paper it's not written on. Among its many faults, a particular failure has been further exposed over the past few months in a rush of bills through Parliament. Making laws is the primary purpose of Parliament but the process has so degenerated that it brings into question whether our constitution works.
There are fundamental principles that are supposed to be present in democracies: checks and balances, free and fair elections, the rule of law, fundamental rights, integrity and standards. Each of these is being called into question.
The first principle, checks and balances, is particularly important in the UK with its lack of a codified (written) constitution. The real power in Parliament is held by the government. As we have seen, the larger the majority a government has, the less accountable it is to Parliament.
First, it has the payroll vote and the votes of those who hope to be on the payroll. It then uses the power of the whips to ensure most members are kept in line. While, eventually, even the strongest leaders can lose support within their own ranks, it often takes many years. There are exceptions: Boris Johnson lost the support of the parliamentary party remarkably quickly, but he was far surpassed by Liz Truss, whose tenure was counted in days. It is rarely the opposition that brings down prime ministers; it is their own Party.
Our House of Commons as the elected chamber has primacy in Parliament, which clearly should be the case. The House of Lords is described as being one of the checks on the government, but as an unelected chamber it only has limited powers to scrutinise and to some extent delay legislation.
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We have, therefore, no legitimate parliamentary means of holding the government to account should its legislation interfere with what could be defined as fundamental rights. And fundamental rights have been undermined in this Parliament. We have also seen bills passing through Parliament only to need revision soon afterwards, as well as Bills that are just not fit for purpose but have been bulldozed through regardless.
Consider the Strikes (Minimum Service Levels) Act and the Illegal Migration Act, both pushed through Parliament with unacceptable haste in response to wider events and both considered to be in conflict with international conventions and treaties that the UK is committed to.
The Strikes Bill was rushed into legislation during the recent spate of strikes and was the worst kind of legislation, termed a "Skeleton Bill". This means that it is the barest framework of a bill, with the detail to be filled in later, after the law is in place. It gives the government Henry VIII powers, so called because the power given to the government is more reminiscent of the 16th century than the 21st. Instead of the government having to come back to Parliament to amend existing bills, it can do it by secondary legislation that has very little scrutiny and is generally passed with little or no public awareness.
At the final reading of the bill in the House of Lords, Lord John Hendy, an authority on industrial law said: “this skeleton legislation with its Henry VIII powers defies every legislative principle”. The bill's title was "Strikes (Minimum Service Levels)", but it had no definition of what a "minimum service level" would be. What was clear, was that it will be devised centrally and imposed on employers and employees.
It will operate in Scotland and Wales even though most of the sectors it covers are devolved, meaning that the Westminster Secretary of State for Health or Education will decide what "minimum level of service" must be provided in Scottish hospitals or Scottish schools if there is an industrial dispute.
The Illegal Migration Bill was again rushed through Parliament as the Home Secretary’s petulant reaction to the hold-up of flights to Rwanda. Baroness Shami Chakrabarti, a human rights authority, described it as “one of the gravest executive power grabs and abrogations of the rule of law in living memory”. Again, this bill infringed the devolved settlement for Scotland and Northern Ireland, undermining their existing legislation on Modern Day Slavery. The minister accepted that the bill was designed to stop refugees claiming asylum and stop giving protection to those who are subjected to human trafficking or slavery. This clearly is contrary to treaties and conventions that the UK Government is signatory to. It should be pointed out that many Tory Peers tried to amend the bill and while it finally made its way through the Lords it was necessary for the Government to call in its peers known as the "backwoodsmen" (those with peerages who do not usually attend) and yes, they were overwhelmingly men.
The defence of this rushed legislation was that it was passed in the House of Commons. The minister in the Lords argued that “your Lordships will have seen that the elected House has today … disagreed with the Lords amendments. I suggest we therefore respect the will of the elected House and the British people by passing this Bill”. He was of course correct. That is the accepted procedure of Parliament, but it doesn’t make it right.
The answer is to have a more effective check on the unrestrained power of a government by having an accountable second chamber. There are many options for preventing stalemate between the two chambers, but it must include a check on governments pushing through poorly bills.
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The Electoral Reform Society and other organisations have long pointed out that the House of Lords is already bloated, so the new batch of peers being appointed in Boris Johnson’s resignation honours only adds to the ridiculous nature of the system. The membership is distorted by age, gender and geograph, with members generally older, male and based in the South of England. The argument that it includes eminent people from the professions and other areas of expertise, is a bit of a myth: the most vocal members are ex-MPs.
The last three Labour Party manifestos included a commitment to abolish the House of Lords and replace it with a Senate of the Nations and Regions. Gordon Brown produced a report at the end of 2022 putting the case for an Assembly of the Nations and Regions. At its launch in Edinburgh Sir Keir Starmer clearly stated that there would be a consultation on the proposal in advance of the next election so that it could be in Labour’s manifesto and its recommendations could be ready to be implemented in the first term. Unfortunately, there has been no mention of the consultation since.
The introduction on the last day before the summer recess of Boris Johnson’s aide to the House of Lords, whose only experience appears to have been working in his and Liz Truss’s offices, must be the final straw. It is time to end the farce of an unelected and unaccountable chamber.
I have to declare an interest as I was appointed to the Lords by Jeremy Corbyn in 2018 with the explicit commitment to work towards its abolition. It may not strike people as an urgent issue, but until this problem is confronted, we cannot claim to have a parliamentary democracy.
Pauline Bryan, Baroness Bryan of Partick, is a Scottish writer and socialist campaigner. She was nominated for a life peerage by the Leader of the Labour Party, Jeremy Corbyn.
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