Replacing the Human Rights Act: The House of Lords, the Parliament Acts and the Salisbury Convention

It is clear that repealing the Human Rights Act and enacting a British Bill of Rights will be far from straightforward. One potential complicating factor is the House of Lords, which is unlikely to meet these proposals with equanimity. What role, then, might the House of Lords play in this area? To what extent may it constitute an obstacle to, or a brake upon, the new Conservative Government’s legislative plans in this area?

The Parliament Acts

The default legal position is that bills only become law upon securing the agreement of both the House of Commons and the House of Lords, as well as royal assent. That legal position is then qualified by the Parliament Act 1911 as amended by the Parliament Act 1949. The effect of that legislation is that the House of Lords can only delay legislation by one year, rather than vetoing it entirely, unless the legislation is a “Money Bill” (in which case the Lords can hold it up only for one month) or a bill to extend or to pave the way for extending the life of Parliament (in which case the House of Lords does have a full veto power). On this basis, the House of Lords could delay the enactment of legislation repealing the Human Rights Act and/or legislation providing for a new British Bill of Rights for year. And, since the Conservative Party — which is the only mainstream party in favour of repealing the HRA — is outnumbered roughly three to one in the Lords, the parliamentary arithmetic would easily allow the upper chamber to invoke its delaying power.

The Salisbury Convention

However, the House of Lords’ powers are generally understood to be constrained not only legally, by the Parliament Act, but also by a constitutional convention known as the Salisbury Convention. This Convention was considered in some depth by the Joint Parliamentary Committee on Conventions in its report published in 2006. The Committee defined the Convention as follows:

In the House of Lords: A manifesto Bill is accorded a Second Reading; a manifesto Bill is not subject to ‘wrecking amendments’ which change the Government’s manifesto intention as proposed in the Bill; and a manifesto Bill is passed and sent (or returned) to the House of Commons, so that they have the opportunity, in reasonable time, to consider the Bill or any amendments the Lords may wish to propose.

In other words, the House of Lords, by convention, accepts those parts of Bills that reflect an intention found in the governing party’s most recent manifesto. Of course, this definition of the Convention — like any definition of any convention — is not definitively authoritative. Conventions are organic in nature, meaning that whether they still exist — and, if so, what they require — turns upon whether those to whom they are directed consider themselves to be bound by the practice in question which, in turn, will depend upon the weight and meaning that they attach to the constitutional principle underlying the practice. Nevertheless, the Committee’s definition of the Salisbury Convention is as good a starting-point as any.

Two questions arise. First, does the Convention still exist? Second, if it does, how would it apply in the present context? As to the first question, it is worth reflecting on the background to the Salisbury Convention. It was adopted in 1945 in the light of a Labour-dominated House of Commons that faced a House of Lords dominated by hereditary Conservative peers. Much, of course, has changed since then, but the basic dynamic is comparable in that we have a a Conservative-controlled House of Commons that faces a House of Lords in which the Government lacks a majority. Some things, however, have changed. In particular, as a result of the House of Lords Act 1999, most of the hereditary peers have no legislative role in the Lords. Some scholars, including Professor Rodney Brazier (giving evidence to the Joint Committee on Conventions), have argued that with the ejection of the hereditary peers, the essential constitutional reason for the Salisbury Convention evaporated. However, the dominant view remains that the decisive constitutional reason that supports the Convention was not the presence of hereditary peers in, but the absence of elected members from, the House of Lords. And that, of course, has not changed. The better view, therefore, is that the Convention persists in some form.

Repeal of the Human Rights Act

However, would the Convention apply — and, if so, how would it apply — to (a) the repeal of the Human Rights Act and (b) the enactment of a British Bill of Rights? Although these two things will, one assumes, go largely hand-in-hand, it is, I think, important to distinguish between them for present purposes. As far as the repeal of the Human Rights Act is concerned, the position appears simple insofar as it constitutes a clear manifesto commitment: the Conservative manifesto said in explicit terms that the Act would be repealed. It therefore appears to follow that the Convention applies and the Lords could not oppose — i.e. delay — any legislative provision stipulating for the HRA’s repeal.

There is, however, a possible counterargument. No convention is set in stone, and it is arguable that the Human Rights Act is such a fundamental piece of constitutional legislation that it would be constitutionally negligent of the House of Lords — which has increasingly cast itself in the role of guardian of constitutional values — to wave through its repeal, particularly if the Government were attempting to institute these changes at breakneck speed. It could even be argued that the Human Rights Act institutionalises a particular, non-majoritarian form of democracy, and that arguments from democracy in favour of the House of Lords exercising restraint under the Convention would therefore have less purchase in the present context. Such arguments might gain strength if the alternative on offer, i.e. the British Bill of Rights, were to prove to be a highly diluted version of the Human Rights Act. I am not going so far as to advance these arguments. I merely point out that they are arguments that might be made and which are not, in my view, wholly incapable of holding some water.

Of course, if the Lords were to proceed along such lines, it would doubtless be accused of breaching the Convention, but in relation to convention — as distinct from law — the distinction between disagreements as to the meaning of a convention and disagreements as to whether a convention has been breached is an ultimately arid one. To an extent, the relevance and content of any convention can only ever be inferred from contemporary constitutional practice. Ultimately, therefore, if the House of Lords were to conclude that it had a non-majoritarian democratic-constitutional right to object to the rushed repeal of the Human Rights Act, such a step, as well as reactions to it, would form part of the constitutional practice from which the content of the Convention would in the future fall to be inferred.

Enactment of a British Bill of Rights

What of provisions providing not for repeal of the Human Rights Act but for a British Bill of Rights? Would such provisions in a Government Bill benefit from the Salisbury Convention? As well as the considerations mentioned above, a further point arises concerning what amounts to a “manifesto commitment”. Clearly, there is a commitment in the Conservatives’ manifesto to enact a British Bill of Rights. However, what the manifesto says about such legislation is extremely vague. We know what the name of the Bill will be, but such other undertakings as are contained in the manifesto are unclear to say the least. For instance, we are told that the Bill of Rights will “break the formal link between British courts and the European Court of Human Rights”, but are not told how. The manifesto also says that the new legislation will make “our own Supreme Court the ultimate arbiter of human rights matters in the UK”, although this is, in one sense, legally impossible for as long as the UK remains a party to the ECHR. And we are told that the Bill will protect “protect basic rights, like the right to a fair trial, and the right to life, which are an essential part of a modern democratic society” but are not told which, if any, other rights it will protect. Nor are we told who will be obliged to respect such rights as are contained in the Bill, or what powers the courts will have to uphold those rights, or what remedies people will have when their rights are breached. The manifesto is, in other words, extremely sparse.

That said, it is clear that the Salisbury Convention does not kick in only if the relevant passage in the manifesto provides nuts-and-bolts details concerning how the proposed legislation will work or be drafted; if the bar was that high, the Convention would never apply. It is reasonable, therefore, to assume that the Convention will operate upon those parts of the Bill of Rights that relate to the undertakings mentioned above. However, it would, in my view, be consistent with the Convention for the House of Lords to seek to oppose or amend aspects of the Bill of Rights that are not addressed in the manifesto. Indeed, the notion of a “wrecking amendment” in respect of such aspects of the Bill would be meaningless, since there would be no clear manifesto intention for the Lords to cut across.

Concluding remarks

The Human Rights Act fills one of the many gaps that exists in the UK thanks to the absence of a written constitution. It can fairly be regarded as fundamental constitutional legislation. To many people familiar with hard-to-amend written constitutions, the notion that such legislation could be repealed and replaced with potentially significantly weaker legislation at the behest of a Government that commanded roughly a third of the popular vote, with the barest of majorities in the lower chamber, and against the wishes of the upper chamber will seem astonishing.

Despite is arguable flaws, one of the virtues of the House of Lords is that it is able to provide, particularly in relation to constitutional matters, a degree of counterbalance to the Government-controlled House of Commons. And the higher the constitutional stakes, the stronger the case for close scrutiny by the House of Lords. We should therefore be slow to assume that the Salisbury Convention ultimately ties the Lords’ hands and requires it to approve whatever the Government places before it in this context. The Salisbury Convention acknowledges the democratic primacy of the Commons. But the constitution — as, paradoxically, the Human Rights Act itself emphasises — is about set of values far richer than a majoritarian notion of democracy. This is not to suggest that the democratic credentials of the Commons should be overlooked, or that the Commons, thanks to the Parliament Acts, cannot or should not ultimately have its way. However, arguments about the meaning of the Salisbury Convention, about how it applies in this area and about the extent to which the House of Lords should treat itself as inhibited by the Convention must be approached not in isolation, but in recognition of the full range of constitutional values that are at stake.