The current political controversy over the Rwanda Bill, currently before the House of Lords, raises the question of when, if ever, the upper chamber should reject legislation passed by the House of Commons. Many oppose the legislation because it is simply immoral and/or the whole scheme is impractical and unworkable, and so want the bill delayed—if not blocked—by any means. But are there constitutional grounds for the rare use by the House of Lords of its delaying power?
The Lords does not have the power to veto legislation like the Rwanda Bill outright. Instead, it has the power to delay certain pieces of legislation—like this bill—for a year. If MPs vote for that legislation again in identical terms in the next parliamentary session (including when there has been an intervening general election) then the bill becomes an act of parliament. This is by operation of the Parliament Acts of 1911 and 1949.
This delaying power does not apply to all bills. For example, legislation to prolong the length of a parliament cannot be forced through with the Parliament Acts. And the power to delay does not apply to legislation dealing with public finances, the so-called “money bills” as certified by the speaker of the House of Commons. The government can always be confident that finance bills can get onto the statute book. But the Rwanda Bill is within the category of legislation that can be delayed for a year, and given that we are within the last year of this parliamentary session, this means the House of Lords could effectively require the government to seek a mandate in the upcoming general election.
The power of the House of Lords to delay bills amounts, in practical terms, to an insistence that the House of Commons considers the question afresh in the next parliamentary session. (A session usually lasts about one year and is formally commenced by the King’s Speech.) The Parliament Acts have been used seven times to win royal assent for a bill despite rejection by the House of Lords, including for the War Crimes Act 1991 (which introduced retrospective criminal offences) and the Hunting Act 2004.
Unless one holds the absolutist position that in no circumstances should the House of Lords be able to delay legislation, one has to wrestle with the question of when the upper house should deploy this constitutional device of forcing members of parliament to think again.
One answer comes from the well-known “Salisbury Convention” that the House of Lords should not reject any legislation that was set out in a victorious party’s manifesto at a general election. This convention, however, is framed in negative terms: it tells you when the House of Lords should not use its delaying power, not when it should.
Another possible answer is that the House of Lords should be prepared to use its delaying power in respect of legislation which affects the checks and balances of the constitution of the United Kingdom. Of course, if such legislation is set out in a manifesto then the above Salisbury Convention applies. But otherwise, such checks-and-balances legislation should be delayed. The reason is that the legitimacy of the House of Commons is based on it being the elected house in a representative democracy. The power of the House of Lords to delay such legislation thereby derives not from any separate democratic legitimacy of the upper house (it has none), but from the fact that the lower house does not have absolute political power for matters not placed before the electorate.
A third possible ground for delay is in respect of legislation that adversely affects the fundamental rights and liberties of human beings. Of course, if such an attack on rights and liberties is spelled out with sufficient detail in a governing party’s manifesto, then ministers can seek to invoke the Salisbury Convention. But the sheer force of primary legislation within our constitutional arrangements, whereby it cannot in principle be gainsaid by the courts or by anyone else, means that legislation that removes basic rights is a non-trivial possibility. If such legislation was ever passed into law then, under current constitutional doctrine, there is nothing the High Court or Supreme Court could do but apply that law.
This potential for illiberal, even tyrannical, legislation means that—at the very least—the House of Commons should be required to pass such legislation twice, with a time gap between. As such, the power of the upper house to delay legislation is a safety valve: not a perfect means of protection, but better than the House of Commons being able straightforwardly to do whatever it wants with primary statutes where real people’s lives and fundamental rights are at stake.
An absolutist may contend that none of these three grounds is sufficient, and that the House of Commons should be able to insist that its bills can speedily become law, even if they are not in any manifesto, upset the checks and balances of the constitution and/or represent an attack on fundamental rights.
The problem with that position is that parliament itself has provided for this delaying power with the Acts of 1911 and 1949. It is the will of parliament that in particular circumstances the House of Lords can use its delaying power. To argue that this power should never be used is to ignore that parliament has deliberately crafted a delaying power.
The real question is therefore when this delaying power should be used. Each of the three situations set out above seem to provide a basis for the House of Lords to force the House of Commons to consider the issue afresh in the next parliamentary session, with perhaps the governing party getting a mandate from the electorate in the meantime.
And in circumstances when a bill meets all three conditions at once then the case for the upper house requiring the lower house to think again becomes compelling, especially when a general election must be held within a year. The Rwanda Bill meets all three conditions: it was not in any party manifesto; it seeks to exclude the courts from making adverse findings of fact and reverses a detailed Supreme Court decision; and it adversely affects the rights of asylum seekers, regardless of the validity of their claims.
If the Commons, in next session of parliament after the general election, sends the bill to the Lords in identical terms, then it can become an Act of Parliament despite its shortcomings.
If you accept that it is the settled will of parliament that there are times where the House of Lords can use its delaying power, it is hard to conceive of a bill where there is a stronger claim on that delaying power being used. For if the delaying power should not be used for this bill, when should it be used?