The principal element of the UK’s constitution is that Parliament is sovereign. The will of Parliament, expressed through Acts of Parliament, is unconstrained by any authority on Earth. It can make or unmake any law whatsoever. Nothing and nobody can set-aside, override, or otherwise ignore the will of Parliament.
Some say that the European Union has changed all this, that Parliament is no longer sovereign, that the European Union is the new supreme institution. European laws, they say, can override an Act of Parliament; fling it into the flames; bury it under a pile of European Directives. But theirs is a limited view of parliamentary sovereignty. European Union law only has supremacy over Acts of Parliament because Parliament continues to permit it. There is no constitutional principle to prevent Parliament from passing a new Act to leave the European Union, and there is nothing to prevent Parliament from expressly overriding EU law. In his recent Hamlyn Lecture (2013) Lord Justice Laws described it in the following way:
…The supremacy which European law possesses in this jurisdiction is given by
the United Kingdom Parliament, the reach of European law is ultimately a function of Parliament’s will.
If Parliament wants to make a new law contrary to an EU treaty obligation, all it has to do is begin the Act with the following sentence (or something similar):
The provisions contained in the following Act are intended to take precedence over any contrary provision of European Union law.
Simple as that…
Given the supreme importance attached to Acts of Parliament, it is necessary to gain an understanding of parliamentary procedure. How does an idea become an Act of Parliament? What kind of hoops does the idea have to jump through before it receives the Queen’s signature and binds us all?
What is Parliament?
Parliament is the supreme legislative authority in the United Kingdom (although Wales and Scotland have their own legislative bodies with devolved powers). In general, the government makes legislative proposals, the proposals are considered by Parliament and made into law, and the law is applied by the judiciary.
In simple terms, Parliament makes new laws; and it consists of three separate bodies:
The House of Commons
The House of Commons contains 650 green seats, each reserved for an individual Member of Parliament (MP). The MPs are directly elected every five years at a general election.
The UK elects its MPs via the first past the post system. When you amble to the polling booth every five years, you are voting for a particular MP to represent your constituency. For example, if you live in St Helens North, all of the votes will be counted in St Helens North and whichever MP has the most votes will win a seat in the House of Commons. That MP will, in theory, represent the interests of his constituents in St Helens North when it comes to Parliamentary debates and votes. The same procedure occurs throughout the UK until all 650 seats are filled by MPs from all over the land.
The vast majority of MPs represent a particular political party: Labour, Conservative, Liberal Democrat, DUP etc. Some MPs are independent, with no party affiliation; or they are members of small and relatively unheard-of parties. For example, the MP for Bradford West represents the Respect Party.
After the election, the total number of seats won by each party are counted. If one party manages to take control of 326 or more seats, then it has overall control of the House of Commons. All of the other parties combined will only have 324 seats.
The above scenario is called a majority government. Since that party has overall control over the House of Commons, it can appoint a Prime Minister from within its ranks, form a government, and usually get its own way when it comes to voting.
If no single party manages to gain 326 seats, then we have what’s called a hung parliament. No single party can command a majority in the House of Commons. In this situation, there are two main options:
- Minority government: The party with the largest number of seats forms a government and appoints a Prime Minister. But they are going to have a big problem: how do they get Parliament to vote their ideas into law? If the other parties combine to vote “no”, then their law will not pass. The government is weak and vulnerable.
- Coalition government: Two or more parties combine to form a government. Positions in government are shared between both parties, and they work together to ensure their legislative proposals are passed. At present (2013) the UK is governed by a coalition of Conservatives and Liberal Democrats.
In theory, the House of Commons represents the will of the common-folk: ordinary people like you and me. The House of Lords, on the other hand…
The House of Lords
The House of Lords is completely unelected. Not one single member of the UK gets to have a say in the membership of the House of Lords: not me, not you, and not your Grandfather.
Members of the House of Lords are called peers, and they are appointed by the Queen after a personal recommendation from the Prime Minister. Most peers are lifelong members of the House of Lords, but 92 of them are hereditary peers: when they die their right to sit in the House of Lords passes automatically to their children, then from their children to their grandchildren, and then from their grandchildren to their great-grandchildren.
The constitution of the UK contains no formal separation of Church and State: the Queen, as well as being the head of state, is also the head of the Church of England (that’s what you get when you found a state on the family values of Henry VIII). As such, a certain number of Bishops are automatically entitled to sit in the House of Lords.
Once a proposed law has been voted through by the House of Commons, it passes to the House of Lords. It follows that these unelected, unaccountable, and possibly unworthy ladies and gentlemen have a major say in the laws that bind us all…
The Queen’s influence in Parliament is largely a formality, a ceremonial display of our long and lustrous history. These days, far from being the divinely ordained, omnipotent, and capricious beast of monarchs past, Queen Elizabeth’s role is reduced to that of a rubber stamp.
She is expected to set-out the government’s legislative agenda at the beginning of each new Parliamentary year. The government of the day provides her with a speech, and she sits on her throne and reads it out.
She also has the final say on whether or not a proposed law will become a fully fledged Act of Parliament. Without her signature – the Royal Assent – there can be no Act of Parliament. But again, her seemingly strong power is in fact a mere historic hangover from bygone days when the monarch actually had a say. In reality, there is a constitutional convention that the Queen will not refuse to sign any proposed Act of Parliament.
How Does an Idea Become a Law?
A draft law is called a Bill (example Bill here), and an idea becomes a Bill after the government has consulted the public about its proposals.
The first stage is to produce a Green Paper. These papers are consultation documents and invite interested parties to make submissions about the proposed law. The government will take these views into account and, if necessary, make some changes to the original proposals.
The next step is to produce a White Paper. White Papers detail the final legislative proposals and explain the rationale behind the proposed new law. A Bill is then produced, ready to be placed before Parliament.
There are several stages involved before the Bill receives the Royal Assent and becomes an Act of Parliament. Some of these are simple formalities; others involve protracted debating and amending. Consider the diagram below:
The first reading is a mere formality. The MP who is sponsoring the Bill will stand up in Parliament and briefly outline the Bill, then the Speaker of the House will take a vote on whether or not the House wishes to consider the Bill in greater detail.
Those MPs who wish to proceed with the Bill will shout “aye,” those who do not will shout “no!” If it is unclear which side has won the shouting contest, the Speaker will call for a formal vote to be taken: a process which is known as division.
If the Bill passes the first reading then it moves on to the second reading. This is where the bulk of the debating happens. MPs will hold a long debate about the principles underlying the Bill, the meaning of the words used in the Bill, and the overall worth of value of the Bill. Once the debate had concluded, the Speaker will take a vote on whether or not to allow the Bill to proceed to the committee stage.
During the committee stage a small group of MPs (usually between 16-50 in total) studies the details of the Bill: line by line, section by section, and clause by clause. These MPs are selected on the basis of their expertise in the particular field or area covered by the Bill. Having studied the Bill, the committee might suggest some amendments (changes), which will then be passed back to the House for further debate.
At the report stage the House will debate any amendments proposed by the committee during the committee stage. They can either choose to accept the amendments or reject them. Again, the Speaker of the House will call a vote. If the Bill passes this stage then it passes through to the third reading.
The third reading is another formality. It is the stage at which the Bill receives a final “yes” or “no” vote from the House. But since the Bill has already passed the report stage, it is very unlikely that the Bill will be defeated at this point.
Once a Bill has passed all of the above stages in the House of Commons, it is transferred to the House of Lords where it must undergo the same process. Ordinarily, a Bill must be passed by both the House of Commons and the House of Lords before it can receive the Royal Assent; but there are exceptions…
The Parliament Acts
The Parliament Acts of 1911 and 1949 allow the House of Commons to produce a new Act of Parliament absent the consent of the House of Lords. The combined effect of these Acts is to render the House of Lords nothing more than a stumbling block: they can delay an Act by up to one year, but they cannot entirely prevent it from becoming an Act.
The first Parliament Act of 1911 was a response to the recalcitrance of the House of Lords. The Liberal government of the day wanted to introduce sweeping liberal reforms, essentially laying the foundations for the modern welfare state. But the House of Lords felt threatened, and did everything within their power to scupper Lloyd George’s proposals, including a refusal to pass the government’s budget.
The eventual response was the passing of the Parliament Act 1911, which allowed the House of Lords to block the progress of Bills by up to two years, but took away their power to entirely abort the legislative process.
The Parliament Act of 1949 was born out of similar circumstances. This time, they were at war with the Labour government after the Second World War. The Labour government wanted to initiate a process of nationalisation, as well as implementing further welfare reforms. The House of Lords said no; the House of Commons passed another Parliament Act to make them even more helpless. This time, they could only delay the progress of a Bill by up to one year.
The interesting part of the story is that the Parliament Act 1949 was made law via the procedure laid down in the Parliament Act 1911. In other words, the House of Lords did not get to have a say in the 1949 legislation.
The Parliament Acts are potent weapons which the House of Commons can unsheathe when the House of Lords tries to get in the way, but in reality the weapon spends most of its time safely within its scabbard. The House of Lords tends to recognise and respect the fact that Bills passed by the House of Commons come with a democratic mandate. They tend to recognise and respect the fact that they have no democratic mandate and therefore ought to yield to the House Commons’ will.
The last time the Parliament Acts were used was in 2004, when the government wanted to pass the Hunting Bill to ban fox hunting. Undoubtedly, many of the peers enjoy nothing more than spending a lost weekend battering foxes to death, and refused to let the Bill pass…
The Hunting Bill is now known as the Hunting Act 2004.
- Ideas become Bills after the public has been consulted.
- The Bill must pass a number of stages in the House of Commons and the House of Lords.
- Once a Bill has been passed by both houses it receives the Royal Assent.
- It is possible for a Bill to become an Act without the consent of the House of Lords. This is permitted by the Parliament Acts of 1911 and 1949.