Rishi Sunak has laid down the gauntlet with the House of Lords not to amend, defeat or delay passage of legislation to allow asylum seekers to be sent to Rwanda, but does he have a constitutional leg to stand on?
A complaint often made of the British constitution is that it is unwritten. This is clearly incorrect – it is written, but uncodified in that it is comprised of parts scattered among judgments, opinions and statutes going back through our history rather than being bound up neatly in one document with a clue in the title like the words “the constitution”.
However, one part of the constitution which is easy to find and well known is the Parliament Act of 1911, which was even the subject of an excellent book of popular history by Roy Jenkins entitled “Mr Balfour’s Poodle”. The book is an account of the constitutional struggle between the Liberal government of the early twentieth century and the House of Lords. The battle started with the introduction of the People’s Budget of 1909 and continued through two general elections until 1911 when the Lords accepted the Parliament bill. This act provided, in short, that ultimately the House of Commons could prevail and pass legislation to which the House of Lords objected and that the view of the House of Commons would prevail.
There are procedures in the Act governing this, none of which help Sunak here as the Government has run out of time before the next election and does not have the two years of legislative time it would need to invoke the act and the Lords are within their constitutional rights to say if you want to overrule us you can, but the commons needs to follow the procedures that the commons itself decided on in so doing. So on the main relevant area of the constitution, he is nowhere.
Can Sunak then rely on a principle called the Salisbury Convention? In its current form, this came into being following the landslide Labour Party victory in the 1945 general election, which produced a Labour government seen as having a popular mandate for significant reform, while once again there was a Conservative majority in the House of Lords. The fifth Marquess of Salisbury announced that the Lords “would not seek to thwart the main lines of Labour’s legislation provided it derived from the party’s manifesto for the previous election”. From this point, manifesto bills were only to be adjusted by the Lords.
This one is of no use to Sunak either as there was no mention of Rwanda in the 2019 Conservative manifesto, so the Lords are not bound to pass any legislation relating to it.
So what’s left? Well, nothing really as the only other obvious alternative route is a drafting and passing in both houses a prior constitutional act to amend either the Parliament Act or the Salisbury Convention and good luck getting that through before the next election must be held.
Perhaps the key point to take from this is that when you see his anger and disdain in press conferences when anticipating a defeat in the Lords which has yet to happen see it for the bluff that it is. He’s not stupid. He knows he’s trying to bluff the Lords on this one. But it’s all a bit amateur hour is it not?
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