42 days and the Constitution

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John Jackson (London, Unlock Democracy): David Davis has spoken of the possibility that the Parliament Act will be used to force through the Government’s proposed “42 day” legislation, despite any objections made by the House of Lords. Theoretically this is possible.

I’ve been asked, what exactly is the Parliament Act? How does it allow the Lords to be over-ruled? And also, following a hint of David Davis, why might it be illegal in the case of 42 days if the government does attempt to use the Parliament Act?

In simple terms:

• if a Bill that has been rejected by the Lords and is then, in the next succeeding session, passed by the House of Commons, in identical terms, and more than one year has elapsed between the second reading of the Bill and its second passage through the Commons;
• and if it is then again rejected by the House of Lords
• it nonetheless becomes an Act of Parliament, unless the House of Commons resolves otherwise.

David Davis has said that for the Parliament Act to be so used in this case would be undemocratic because the proposed legislation was not contained in the last Labour Party manifesto. Here he is confusing legislation with convention. It was the clear intention originally that the Parliament Act should be used to prevent the unelected chamber from blocking major (constitutional) legislation desired by the elected chamber (probably, but not necessarily, reflecting the will of a popular majority). Conversely, the so-called Salisbury convention decrees that the upper chamber should not block any government legislation outlined in the party manifesto on which it was elected. The last time the Parliament Act was used concerned the Hunting Act. That Act (hardly of major constitutional importance) was not part of the Labour manifesto which merely promised a free vote.

Opponents of the Hunting Act (of which I was one) did not complain that the use of the Parliament Act was undemocratic: they did complain that the Parliament Act itself was a nullity because it came into being by the unlawful use by the Commons of similar legislation which already gave it power to impose its will on the Lords. That complaint was turned down by nine law lords. But, in the course of doing so, a number of our most senior judges speculated on the possibility of there being legal limits to the sovereignty of Parliament. By Parliament they clearly meant the House of Commons acting at the behest of, or manipulated by, the Government.

Those judicial remarks resonate with another statement by Davis: the use of the Parliament Act to force through the “42 day” legislation might be unlawful. Indeed, it might well be. Because it is possible that the legislation could be found to be in conflict with the Rule of Law itself - which Parliament has already said is one of our constitutional principles.

The senior law lord, Lord Bingham, has postulated that one of the sub-principles on which the Rule of Law is predicated is that legislation, or executive action, must be consistent with fundamental human rights. (I have written about the huge implications of this).

At the very least, the ‘42 day’ proposal dents the proposition enshrined in habeas corpus: that unreasonable detention without trial is unlawful. That is to say, if someone is to be detained, the authorities must tell him why. Who would challenge the assertion that habeas corpus is the expression of a fundamental human right?

In my view, the campaign on which David Davis is to embark should address both the “wrong” - the 42 day proposition - and also the cause of it. Our constitution is not working. It should simply be unconstitutional to propose that people can be held for a month or more without knowing why.

But the legislature has become too much the servant of government through the party system, in a way that is now unchecked by any informal agreement against the abuse of this power. There are clear signs that this is leading us to a constitutional crisis. One form of this might be a wholly undesirable conflict between Parliament-Government and the judges. If Davis is supported by his constituents - as I hope he will be - they should call for a new, properly crafted, constitutional settlement which meets the needs of a modern, civilised society. Its creation must involve ‘we, the people’. It must reflect our democratic will and not of those who benefit from the present unholy mess.

It is now a clear weakness of our constitution that it exposes us to policies like 42 Days justified in the name of popular opinion. The weakness is that our existing constitution itself is not popular and no longer commands public respect or belief. It is inevitable in a democracy that policies that are unpopular with large sections of the population will indeed be ruled to be constitutional. It is therefore all the more important that everyone accepts the more profound legitimacy of the system as whole. When people feel that a government can use its executive power to cheat on what should be the basic rules, we start to enter a constitutional void. This also needs to be addressed and I hope David Davis’s campaign does so.

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