2.2.2 – The comparative powers of the Commons and Lords
With the parliamentary session running out of time, it has become increasingly apparent that the Assisted Dying Bill may not pass the House of Lords and, therefore, the bill could fall at the end of the session. Many in the House of Commons have been frustrated by the sheer number of amendments placed on the bill. Over a thousand amendments have been proposed by peers. This has dramatically slowed down its progress, as the Lords scrutinise legislation very much ‘line-by-line’. If the bill is not passed by the end of the session, it will have to be reintroduced in the next session. This will mean it must go through the House of Commons again and then return to the House of Lords, where it may face similar obstacles once more.
Consequently, it has been suggested that the House of Commons may invoke the Parliament Acts to bypass the House of Lords and ensure the bill becomes law. This suggestion was made by Lord Falconer, a supporter of the bill and a former Lord Chancellor and Secretary of State for Justice.
The Parliament Act was first passed in 1911 following the constitutional crisis that erupted over the House of Lords’ rejection of the People’s Budget between 1909 and 1911. The Act removed the ability of the House of Lords to veto most public bills by allowing legislation to receive Royal Assent without the consent of the Lords if it had been passed by the House of Commons in three successive sessions over a minimum period of two years. The Parliament Act 1949 further reduced this delaying power to two sessions over a minimum period of one year. This means that if the House of Commons passes the same bill in two successive sessions and the House of Lords continues to reject it, the Commons can ultimately bypass the Lords. The Parliament Acts have been used very sparingly. In fact, they have been used only four times since 1949, most recently by the Labour government to ensure the passage of the Hunting Act 2004. The Parliament Acts have never been used to secure the passage of a Private Member’s Bill and have only been used in relation to government bills.
However, a decision to use the Parliament Acts to pass the Assisted Dying Bill would be highly controversial, with many arguing it would stretch the constitutional principles underpinning their use. The Parliament Acts were designed primarily to resolve political deadlock between the elected House of Commons and the unelected House of Lords. The Assisted Dying Bill is not a party-political issue; rather, it is an ethical and moral issue, which is why it has been treated as a free vote in both Houses. Many of the amendments proposed in the Lords raise profound questions about the practical and ethical operation of assisted dying, and bypassing the Lords would arguably undermine their role as a revising, scrutinising, and expert chamber. If the Parliament Acts were used in this way, it is possible that their use could be challenged in the courts through judicial review. This has occurred before: in Jackson v Attorney General [2005], the use of the Parliament Acts to enact the Hunting Act was challenged. Although the Law Lords upheld the legality of the Parliament Act 1949 and confirmed that the Hunting Act had been lawfully enacted, several judges indicated that the courts might be prepared to intervene if the Parliament Acts were used in a way that undermined fundamental constitutional principles or basic rights.
If the bill fails to pass in this session, either another backbench MP would need to introduce it as a new Private Member’s Bill, or the government would have to adopt it and introduce it as a government bill. Neither outcome is guaranteed.