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Joshua Rozenberg
Monday 20th July 2009
Do Peers have Human Rights?

The Government's Constitutional Reform and Governance Bill, published yesterday, will allow the House of Lords to suspend or expel a peer if it thinks that "the House is in disrepute because of conduct of the person". This seems a strange criterion.

If a peer fiddles his expenses, why does that bring the House into disrepute? It's the peer who has behaved disreputably, not the House.

Fortunately, there's a much more straightforward provision covering peers convicted of criminal offences: once you have been sentenced to a year or more in prison - anywhere in the world - you're out.

The good news for Lord Black of Crossharbour, currently serving a rather longer sentence in the US for fraud, is that this clause will apply only to offences committed after the Act comes into force.

No doubt this was to ensure compliance with the little-noticed Article 7 of the Human Rights Convention, which bans any increase in punishment after an offence has been committed.

Indeed, Jack Straw has made the standard declaration that, in his view, the Bill is compatible with human rights. But his officials seem far from confident.

They are particularly worried by the suspension or expulsion provisions mentioned above. Explanatory notes published with the Bill say it might be argued that these provisions engage Article 6 of the convention.

In that event, peers would be entitled to a fair hearing before an independent tribunal. The best the Government can say on this is that it considers "the contrary view is the better one".

But even if membership of the Lords is a "civil right" and Article 6 is engaged, the Government says there are "good arguments that the proposals would be compatible with that Convention right" - in other words, that peers would have a fair hearing before being kicked out.

It refers to various procedural safeguards, including "a right of appeal to the Committee of Privileges, a body which includes four Lords of Appeal".

But the Lords of Appeal - the law lords - will not be allowed to sit on any Lords committee from October 1, when section 137(3)(b) of the Constitutional Reform Act 2005 comes into force. Not quite such a safeguard, then.

Incidentally, I was sorry to see that clause 55 of the Bill would give a single minister the power to overturn an Act of Parliament if he or she considers that this would be "appropriate in consequence of any provision" in the Bill. Is this really necessary? The minister could even overturn legislation passed later in the same session of Parliament.

Talking of which, when is this Bill likely to become law? There's not enough time before the end of this session.

The answer, according to the Ministry of Justice, is that this is a "carry-over" Bill and will have its second reading in the next Parliamentary session.

Watch this space.


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Andrew Le Sueur
July 21st, 2009
9:07 PM
Joshua: I think you muddle "Lords of Appeal" (retired law lords, who are staying in the upper House) and "Lords of Appeal IN ORDINARY" (the full-time salaried law lords who are leaving the upper House for the UK Supreme Court). There will continue to be "Lords of Appeal" eligible to serve on the Privileges Committee ... at least until there's a wholly elected upper House.

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About Joshua Rozenberg

Joshua Rozenberg is an independent legal commentator who presents Law in Action on BBC Radio 4.

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