Same-sex marriage and the Parliament Acts

As I’ve mentioned on previous occasions, I don’t expect MPs to demonstrate a command of the full ins and outs of every single piece of legislation on the statute books but, when it comes to those precious few piece of legislation that make up the written portion of our largely unwritten constitution, there I do expect MPs to possess at least a decent working knowledge of the legislation that shapes and underpins their role as Members of Parliament.

Sadly, some MPs would appear to be rather ignorant of the rules and procedures that govern the very institution in which they work , the most recent example of which is to be found in comments posted on Twitter by Stewart Jackson MP, Conservative member for the constituency of Peterborough.

Responding to the news that the government will bring forward legislation that will permit same-sex marriages to be solemnised by those religious denominations who are content to offer such ceremonies, in addition to earlier proposals to allow civil same-sex marriages, Jackson posted the following comment, which found its way into an article at the Telegraph without journalists checking it for accuracy:

It remains to be seen whether or not Jackson’s prediction that the government’s legislation will be ‘massacred’ in the House of Lords will turn out to be correct, or not. The composition of the House of Lords is very different, today, than it was at the tail end of the 1990’s when it sought to block what eventually became the Sexual Offences (Amendment) Act 2000, legislation that set the age of consent for male homosexual relationships at 16 years of age in line with the age of consent that applied to heterosexual and lesbian relationships. forcing the Labour government of the time to invoke the Parliament Acts of 1911 and 1949 in order to force it through Parliament.

What is, however, clearly incorrect is Jackson’s assertion that the Parliament Act cannot be invoked on this occasion because there was no commitment to legislate for same-sex marriages in either the 2010 Conservative manifesto or, indeed, the Coalition agreement with the Liberal Democrats.

The only parliamentary convention that applies to manifesto commitments is the Salisbury (or Salisbury-Addison) convention, which dates to the 1940’s and was formulated specifically to avoid newly elected governments having to resort to the Parliament Acts in order to implement manifesto commitment for which they had received an electoral mandate by virtue of winning a general election. At the time it was formulated, following Labour’s historic election victory in 1945, the Labour Party’s representation in the House of Lords amounted to just 16 peers and an in-built Conservative majority that  lasted right up to the point at which the majority of hereditary peers were removed from the House in 1999.

The convention stipulates that the House of Lords may not oppose the second or third reading of any government bill promised in its election manifesto, nor may it put forward ‘wrecking amendments’ designed to destroy such a bill, although reasoned amendments are still permitted.

The Parliament Acts, however, can be invoked to force through any public (i.e. government) bill introduced in the House of Common that is rejected by the House of Lord after a delay of one year, except in the case of ‘money bills’, which deal with government taxation or spending and can be delayed by only one month, or bills which seek to extend the maximum duration of a parliament beyond five year or which confirm a provisional order, where the Lord’s retains its power of veto. The Parliament Acts do not, however, apply to public bills introduced in the House of Lords or to private bills and delegated legislation.

In short, the government most certainly can use the Parliament Acts to legislate for same-sex marriages, irrespective of any opposition in the House of Lord, provided that the bill completes its passage through the House of Commons in time for Parliament Acts to be invoked before the latest date on which Parliament can be prorogued prior to the next general election.

The Sexual Offences (Amendment) Act 2000 is just one example of an Act of Parliament passed using the Parliament Acts for which there was no prior manifesto commitment. There was no reference to equalising the age of consent for gay men in Labour’s 1997 election just as there was nothing in the Conservative Party’s 1987 election manifesto which related to the War Crimes Act 1991, this being the sole example – to date – of a Conservative government using the Parliament Acts to assert the primacy of the House of Commons over the House of Lords.

What all this means , in practice, is that provided that the bill to legislate for same-sex marriages passes its third reading in the House of Common before the start of April 2014, it will become law irrespective of the strength of opposition it meets in the House of Lords, although implementation of any such legislation could still, in theory, be delayed if the bill requires additional delegated legislation to be passed prior to commencement.

There was a time when it was well understood that even a humble backbench MP could make his or her mark on the House, and punch well above their weight in the chamber, by cultivating a detailed knowledge and understanding of Parliamentary procedure. The late Eric Forth MP, who died in 2006, was, for all his manifest faults and his well-deserved reputation as one of the leading lights of the ‘awkward squad’, held in high regard as a parliamentarian by members of all parties for his undoubted command of parliamentary procedure even if his self-appointed role as  a leading scourge of private members’ legislation also gained him an equally well-deserve reputation, amongst his political opponents, as a complete and utter bastard. Although Forth’s abrasive approach was certainly not to everyone’s liking, even amongst members of his own party, he was respected and even feared, at times, as an adversary on the floor of the chamber. so much so that it was genuinely felt that House had become that little bit poorer for his passing.

Sadly, those days appear to be passing rapidly into history, with too many MPs of a more recent vintage showing far too great an interest in grandstanding to the press and to their followers on Twitter and far too little an interest in developing an intimate understanding of the internal workings of Parliament.

Update

It would appear that the fashionable line amongst some Conservative opponents of same-sex marriage is the claim that Parliament has either no right to amend the legal definition of marriage or no mandate to do so because none of the parties of government included a commitment to allow same-sex marriages in their last election manifesto.

The absurdity of such claims is, perhaps, best illustrated by this short passage from AV Dicey’s ‘Introduction to the Study of the Law of the Constitution’, which was first published in 1885.

Parliament means, in the mouth of a lawyer (though the word has often a different sense in conversation) The King, the House of Lords, and the House of Commons: these three bodies acting together may be aptly described as the “King in Parliament”, and constitute Parliament. The principle of Parliamentary sovereignty mean neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.

Parliament has, of course, made laws in respect of marriage since the first Marriage Act of 1753 and, in doing so, asserted it sovereign right to legislate for and define marriage as its sees fit more than 250 years ago.

As for the question of a mandate. the doctrine of Parliamentary Sovereignty mean, of course, that the only mandate a government requires in order to legislate is that of being able to command a majority of votes in both House, or in the House of Commons alone if the Parliament Acts are invoked, in favour of a particular piece of legislation unless, of course, the reigning monarch of the time wishes to provoke a constitutional crisis by declining to give Royal Assent to a government bill after it has successfully completed its passage through the House.

Like it or not, that is how our constitution works, as Members of both Houses should know perfectly well.