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A Parliament Act International Law Research; Vol. 10, No. 1; 2021 ISSN 1927-5234 E-ISSN 1927-5242 Published by Canadian Center of Science and Education Modernising the Constitution - A Parliament Act Graham McBain1,2 1 Peterhouse, Cambridge, UK 2 Harvard Law School, USA Correspondence: Graham McBain, 21 Millmead Terrace, Guildford, Surrey GU2 4AT, UK. E-mail: [email protected] Received: January 6, 2021 Accepted: February 3, 2021 Online Published: February 12, 2021 doi:10.5539/ilr.v10n1p101 URL: https://doi.org/10.5539/ilr.v10n1p101 A previous article has looked at modernising the law on the Crown, see Modernising the Constitution - A Crown Act.1 This article looks at the same in respect of Parliament. It may be noted, from the outset, that the legislation - and common law - on Parliament, is much simpler and less complicated than that on the Crown. Indeed, a large amount of this legislation is administrative (mundane) in nature. Also, much is non-contentious, having given rise to little caselaw. Further, there is a compelling case for consolidation since there are, presently, c. 68 Acts relating to Parliament, but they contain only c. 280 sections and much of the same is obsolete or couched in antiquated language which is scarcely intelligible. Thus, the essential issues are the following: Consolidation of Parliamentary Legislation; Modernising Crown Prerogatives relating to Parliament. In the latter case, most Crown prerogatives are now obsolete - as reflects the position after the Glorious Revolution of 1688. And, the few worth retaining should be placed in legislation - in order to give greater consistency and coherency to the same. In conclusion, all material (legislative and common law) relating to Parliament should now be consolidated into a Parliament Act. Most of this would not be contentious, being administrative in nature. However, a few issues concerning Parliament are contentious. They are also considered in this article. 1. INTRODUCTION A prior article on the Crown has listed all (or almost all) the principal texts on constitutional law.2 Since this has been done in that article, it is not replicated here - save that Appendix A lists texts specific to Parliament. Further, unlike material on the Crown, most material on Parliament has - relatively rarely - been the source of contention before the courts. Thus, it is unsurprising that the first legal text of quality dedicated to considering the law on Parliament did not appear until mid-Victorian times. That is, the text by Thomas Erskine May, A Treatise upon the Law, Privileges, Proceedings and Usage of Parliament (1844) (‘May’).3 This is the pre-eminent text on Parliament and it continues until this day, the 25th edition having been issued in 2019.4 Another useful text - indicating the position of Parliament vis-a-vis Crown prerogatives in Victorian times - is that of Joseph Chitty Jr, A Treatise on the Law of Prerogatives of the Crown (1820).5 2. ABOLISHING THE HOUSE OF LORDS The legal (and physical) concept of Parliament is that of two houses 6 (that is, two chambers) assembled in one building (called parliament) which is styled (that is, called) the ‘Parliament of the United Kingdom of Great Britain and Northern Ireland’. The first of these chambers - a lower chamber - is elected. This is the ‘House of Commons’ (‘HC’) being persons elected by the electorate (i.e. persons able to vote who do so). 1 GS McBain, Modernising the Constitution - A Crown Act (2021) International Law Research, vol 10, no 1, pp 13-100. The article asserts that some 60 Acts relating to the Crown should be consolidated into 1 Crown Act. 2 Ibid, Appendix B. 3 TE May, A Treatise upon the Law, Privileges, Proceedings and Usage of Parliament (1844). 4 D Natzler & M Hutton, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (25th ed, 2019). See also P Evans, Essays on the History of Parliamentary Procedure (2017). 5 J Chitty (Jr), A Treatise on the Law of Prerogatives of the Crown (1820). There was only one edition. 6 House’ (Anglo-Saxon, hus) refers to the chambers (rooms) in the building. The word ‘Parliament’ refers to the building, albeit it is, often, used to also refer to the institution. ECS Wade & GG Phillips, Constitutional Law (1st ed, 1931), p 107 ‘Parliament consists of two houses…’. Cf. May (in 1844), n 3, p 2 ‘The Imperial Parliament of the [UK] of [GB] and Ireland, is composed of the king or queen, and the three estates of the realm, viz. the Lords Spiritual, the Lords Temporal and the Commons.’ 101 ilr.ccsenet.org International Law Research Vol. 10, No. 1; 2021 The second of these chambers - an upper chamber - is unelected. This is the ‘House of Lords’ (‘HL’) being persons appointed by the Crown (but, in reality, by the government, save for hereditary peers). One contentious issue is whether the HL should be abolished. This is a political matter which is not further considered 7 albeit the original purposive element of the HL has long ended.8 However, legally, abolition of the HL is relatively simple. Indeed, all that is needed is for legislation to provide that: ‘The House of Lords in Parliament is abolished’. Cromwellian legislation so provided, the Commonwealth Act of 19th March 1648/9 stating: The Commons of England assembled in Parliament, finding by too long experience, that the House of Lords is useless and dangerous to the people of England to be continued, have thought fit to ordain and enact, and be it ordained and enacted by this present Parliament, and by the authority of the same, that from henceforth the House of Lords in Parliament, shall be and is hereby wholly abolished and taken away. (italics supplied) As well as such a sentence, legislation expressly dealing with the HL (of which there is little) would need to be repealed.9 This, principally, comprises the following: House of Lords Precedence Act 1539. This regulates seating in the HL, in archaic form.10 Union with Scotland Act 1706, art 25(6). This provides for the election of 16 Scots peers to the HL11 (art 23, which provides for the precedence of Scots peers, would not require to be repealed). Parliament Acts 1911 & 1949. These provide for the non-consent of the HL in respect of money bills. Thus, the 1911 Act, s 1(1) states: ‘If a money bill, having been passed by the [HC], and sent up to the [HL] at least one month before the end of the session, is not passed by the [HL] without amendment within one month after it is so sent up to that house, the Bill shall, unless the [HC] direct to the contrary, be presented to [HM] and become an Act of Parliament on the royal assent being signified, notwithstanding that the [HL] have not consented to the Bill.’ The Act of 1949 amended the 1911 Act. House of Lords Act 1999. This removed the right of hereditary peers to sit in the HL, bar 92 hereditary peers.12 House of Lords Reform Act 2014 & House of Lords (Expulsion and Suspension) Act 2015. These deal with non- attendance, expulsion etc. in respect of the HL. 7 That said, it may be noted that the HL, from its inception, has always been a place of privilege - one mainly reserved for the Royal family and their children (legitimate and otherwise); also retainers and others connected to them. Further, repeated attempts to modernise the HL over the centuries have failed and it remains excessively large. The retention of the HL has been subject to considerable criticism from all parties (mostly recently the SNP and the Labour Party). 8 The HL (the chamber of the lords or peers) originated - from the Norman Conquest, at least - as an assembly of major landowners and other important dignatories (such as clerics) who assembled to advise the sovereign in person. The rationale for this was that such landowners held their land subject to military service (knight’s service), in order to provide an army to the sovereign to defend the realm (even senior clerics, while obliged to provide other tenurial services, had military obligations at the outset of the Norman Conquest). By the time of Henry I (1100- 35) knight’s service was commuted, in most cases, into a military payment (escuage), enabling the sovereign to fund a professional army. Knight’s service (and most other tenurial services) were abolished by the Tenures Abolition Act 1660 (extant). 9 See p 83 (schedule I, Pt 2). A Parliament Act should, also, provide that any ancillary or supplementary legislation required to be repealed (or amended) - as well as the abolition of any ancillary matters in respect of the abolition of the HL - may be set out in an SI. 10 May (in 2019), n 4, p 134 ‘In practice these arrangements have been modified for the sake of convenience in debate on modern party lines…’. 11 viz (recital of Act of Parliament of Scotland for settling Election of the [16] peers and [45] Members for Scotland).’And whereas since the passing the said Act in the Parliament of Scotland for ratifying the said Articles of Union one other Act intituled Act settling the manner of electing the [16] peers and [45] members to represent Scotland in the Parliament of [GB] hath likewise passed in the said Parliament of Scotland at Edinburgh the [5 Feb 1707] the tenor whereof follows: Our Sovereign Lady considering that by the [22nd] Article of the Treaty of Union as the same is ratified by an Act passed in this Session of Parliament upon the [16 Jan 1706] it is provided that by virtue of the said Treaty of the peers of Scotland at the time of the Union, [16] shall be the number to sit and vote in the [HL] and [45] the number of the representatives of
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