House of Lords Reform

This post has been contributed by Hilaire Barnett, Public law tutor for the Undergraduate Laws Programme.

The Report of the Lord Speaker’s Committee on the Size of the House was published on 31 October 2017.  The Committee recommends that the size of the House be reduced to 600 members.  The total membership at 1 October 2017 was 826.  At its highest, before the 1999 House of Lords Act, the membership was 1,300.  The House of Lords Reform Act 2014 provided for the retirement of members, while the House of Lords (Expulsion and Suspension) Act 2015 enabled the House to remove members for misconduct.  Neither of these Acts addressed the real problem of size:  the Committee states that the rise in numbers is ‘inexorable’ and the size of the House becoming ‘unsustainable’.

In order to achieve the reduction to 600 members, a system involving ‘two-out, one-in’ will initially be adopted.   Once the target figure is reached, new members will be limited to the number of vacancies arising.  The Committee envisages achieving the target figure by 2022 – 2027.  All new members would serve a non-renewable fixed term of 15 years.  Because of the difficulties always encountered in passing legislation reforming the House of Lords, the Report recommends that the proposed changes be achieved without new legislation, relying on a mixture of cooperation of members and the use of the 2014 and 2015 Act.

New political appointments would be shared between the parties in line with the results of the preceding general election, using a formula of the average of a party’s share of Commons seats and its percentage share of the national vote. No party would be allowed to have an absolute majority of political seats in the House.  Crossbench appointments would not be tied to election results and would make up the same proportion of the House as present (about 25 per cent).  Supreme Court Justices would be made life peers on appointment and entitled to sit for a fixed seven-year term on retirement.  The number of Bishops would remain the same.

As to the remaining 92 hereditary peers, since these are provided for by statute (The House of Lords Act 1999), primary legislation would be required to alter their right to sit.

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HUMAN RIGHTS

Precedent and decisions of the Court of Human Rights

In Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36, the Supreme Court again considered the relationship between its precedent decisions and those of the Court of Human Rights.  In this case, which turned on the right to accommodation under the Housing Act 1996, the Supreme Court held that it would not depart from its previous unanimous decision in Ali v Birmingham City Council (2010) in order to follow the decision of the Strasbourg court in Ali v United Kingdom (2016) .  The ECtHR’s decision was from a Chamber of the Court, and it had not addressed in any detail the Supreme Court’s reasoning or its concerns over the ‘judicialisation’ of the welfare services.  In this case, the Supreme Court would await a decision by the Grand Chamber before considering whether or not to depart from its previous decision.

See also R (Hicks) v Commissioner of Police for the Metropolis [2017] UKSC 9  concerning the police power of arrest to prevent a breach of the peace which was alleged to be a violation of Article 5 (the right to liberty).  The Supreme Court dismissed the appeals.  The ability of the police to perform their duty would be unduly hampered if they could not lawfully arrest and detain a person for a relatively short time.  In reaching its decision the Supreme Court preferred the reasoning of the minority of judges in the Strasbourg case of Ostendorf v Germany (2015) 34 BHRC 738, rather than that of the majority.

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Balancing the right to privacy against the right to freedom of expression and open justice

In Khuja v Times Newspapers Ltd [2017] UKSC 49; [2017] 3 WLR 351 the Supreme Court returned to the question of how to balance the competing claims in Articles 8 and 10. A number of men, including the claimant, had been arrested on suspicion of child abuse.  The claimant was arrested because one of the complainants had told the police that she had been abused by a man with the same, very common, first name.  He was not charged, and was released.  At the trial of the other men, which led to their conviction, the claimant’s identity was protected from disclosure by an order of the court, although in evidence he was referred to.   Newspapers sought to have the non-disclosure order set aside on the basis that there were no longer any imminent proceedings against the claimant which could be prejudiced by publication.  The claimant sought a non-disclosure order relying on Article 8.  On appeal to the Supreme Court, by seven to two, the claimant’s appeal was dismissed.

The Supreme Court stated that the principle of open justice was limited by the law of contempt, the law of defamation and Convention rights.  Balancing competing Convention rights was ‘fact-specific’; neither right was in principle stronger than the other and in decided which would prevail the court had to consider their comparative importance in the particular circumstances and assess the proportionality of the interference which the grant or refusal of an injunction  would represent.  In this case, the identity of the claimant was a relevant feature of the story and the public interest in the reporting of court proceedings outweighed the claimant’s right to privacy.

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JUDICIAL REVIEW

The duty to give reasons

The duty to give reasons was considered by the Court of Appeal in Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71.   An application had been made for the development of a football stadium on Green Belt land (land which is subject to special controls and subject to a National Policy Framework).   The Council’s senior Planning Officer made a detailed report in 2014 recommending that the application be rejected and permission refused.  The Council’s Planning Committee rejected the recommendation and gave approval in principle, subject to certain conditions being met.  Planning permission was granted in April 2015, without giving reasons.

Between 2003 and 2013 there existed a statutory duty to give reasons for all planning decisions but this had been removed for planning approvals.  However, the absence of a statutory duty did not mean that there was no duty to give reasons under common law.

Elias LJ accepted that there was no ‘general obligation to give reasons at common law’, as confirmed in the ex parte Doody case (1994).  However, he also accepted that ‘the tendency increasingly is to require them rather than not’.  It was his conclusion that:

… it may be more accurate to say that the common law is moving to the position                 whilst there is no universal obligation to give reasons in all circumstances, in                       general they should be given unless there is a proper justification for not doing so                   (emphasis added).

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