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David Herdson says the Leveson law could be negating parliament’s most precious principle

March 24th, 2013

It is unconstitutionally seeking to bind its successors?David Herdson

The reporting of the implementation (or not, depending on your point of view) of the Leveson proposals have understandably concentrated on the regulation of the media. It is, after all, the media who have been reporting it and there is a tendency within the industry to believe that everyone else finds them as interesting as they find themselves.

That’s not to say the reforms aren’t significant. They are – or at least, they might be if enough of the newspapers and others opt in to the regulation process; something still up in the air. Much more significant however, and far less remarked upon, is the further undermining of one of parliament’s most precious principles: that no parliament may bind a successor.

If the Royal Charter can only be amended by a motion carried in two-thirds in both the Lords and the Commons – which is how the draft Charter and the Act would have it – then this parliament is seeking to bind a future one, at least in part. It’s true that it would not be bound were the higher threshold reached but nor would it be free to implement its decisions according to its votes: it would have limited its own sovereignty.

Actually, there is a loophole: although the Charter could not be amended except by a two-thirds majority, the Act which gives it legislative force can, so it would be possible to change it through that backdoor route on a simple majority of more than 50% of those voting. That, however, is not the point: parliament is going down a very dangerous route in adopting super-majorities, even if in this case it’s not done so very effectively.

It’s not the first time that a super-majority’s been built into legislation. The Fixed-term Parliaments Act requires a two-thirds majority within the Commons in order for an early election to take place but that’s slightly different: an early dissolution is a one-off event that does not influence future parliaments except in the first one’s composition. Seeking to protect legislation (or, as here, some other instrument), against future parliamentary interference is of a different order.

    After all, once this Rubicon’s been crossed, why shouldn’t any government attempt to protect its pet projects against repeal by including super-majority provisions? Indeed, why stop at two-thirds – a proportion of seats that Labour came close to winning in 1997?

Why not three-quarters (the number of US states required to ratify constitutional changes), or five-sixths (as required in Denmark for certain provisions), or even 100% (as was once the case in the Polish Sejm)?

Once the line has been erased, the decision on where to draw a new one becomes very arbitrary. If something as relatively trivial as the governance of an opt-in press regulatory body is so protected, how easy is it to argue for protecting other legislation in like manner, either because it’s considered highly significant or – more likely – because a government knows how much its opposition would like to repeal it, should they have the chance.

That no parliament can bind its successors is a good principle, and one that should not be done away with lightly.

David Herdson

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