House Of Lords Research Articles

Suspicionless Stop and Search: You’re Joking, not Another one!

Police stop and search powers have been on the statute book for many years and are widely regarded as being an important tool in the prevention or detection of criminal offences. Whilst most of these powers require that an officer has ‘reasonable grounds to suspect’ that a person is in possession of a prohibited item or article before they may be exercised, the last 30 or so years has seen the emergence of ‘suspicionless’ stop and search powers on the statute book. These have proved to be controversial for a number of reasons, not least because they permit random stop and searches to occur which rarely result in officers finding what they were looking for, and have the potential to strain relations between the police and the communities they serve. Official data also makes clear that they have consistently been used in a racially disproportionate way. Under the Public Order Act 2023, a new suspicionless stop and search power has been created which is exercisable by the police in the context of peaceful protests. The case against it was strongly made in the House of Lords and beyond Parliament. Regrettably, it was not accepted by a government which was also unwilling to amend the legislation so as to enhance the safeguards designed to prevent the misuse of the power.

Back to the future: Retrograde alcohol calculations an uncertain science

Retrograde extrapolations, known as back calculations are widely used in forensic toxicology to estimate the blood alcohol concentration of an individual at some prior time. In the UK guidelines have been issued by the United Kingdom and Ireland Association of Forensic Toxicologists) and the Organization of Scientific Area Committees (OSAC) for Forensic Science. However, these guidelines are not fully agreed and open tointerpretation. Alcohol elimination rates have been discussed in numerous publications since Widmark’s original data was published. The current guidance from UKIAFT, is to report the most likely back calculated result together with a range of results based on the 95% confidence limit elimination rates (9 to 29 mg/100 mL/hour).The Divisional Court, upheld by the House of Lords, ruled that in order to convict someone for being over the prescribed limit on the basis of any back calculation, the case must be proven beyond reasonable doubt. A 99.73% confidence interval increased to 3 standard deviations at the lower end would provide a greater factual basis for the court and cover alarger proportion of the population, this can be achieved by increasing the elimination range to 8 to 29 mg/100 mL/hour. Retrograde extrapolations also rely on the subject being post absorptive at the prior time. In the UK, back calculations are validif the subject has not eaten or consumed alcohol withinonehour ofthe back calculation time. Where the subject has eatenprior to the back calculation, experts are instructed to consider whether the back calculation is applicable. In Germany and the United States back calculations are not permitted to a time within 2 h after last drink consumed. The 2 h limit would better meet the highest standard of ‘beyond reasonable doubt’ burden of proof, and should be used. These proposed changes would decrease the uncertainty associated with retrograde calculations carried out by UK toxicologists.

Bishops in the House of Lords: fit for the future?

AbstractThis article seeks to provide a constitutional law perspective on the contribution of the Lords Spiritual to the scrutiny of legislation in the House of Lords. It examines the legal basis of the bishops’ role in the Upper House and how this has evolved. It considers how far the bishops currently meet expectations about their role against the background of calls for reform of the House of Lords and changes in religious affiliation in the United Kingdom. The paper draws, amongst other things, on the experience of a group of current and former Lords Spiritual who shared their views with the author in the course of some informal semi-structured conversations. It also examines the relationship between the Lords Spiritual and the Church of England's national institutions. It concludes that the Lords Spiritual make a distinctive contribution to the legislature which should be maintained, with some modifications to meet the needs of the time.

From pets to parliament: why we chose to shape veterinary policy of the future.

Entering the political arena isn't for everyone, but here the second - and currently only - vet to sit in the House of Lords, Lord Trees, and his parliamentary intern, discuss why contributing to parliamentary business is an exciting and stimulating end and start to their respective careers.

The Licensee Called - He Wants His Peace Back!

English jurisprudence has long established that only those with a legal interest in land may bring an action for nuisance. Although thought to have been challenged by the Court of Appeal in Khorasandjian v Bush, the House of Lords in Hunter v Canary Wharf Ltd affirmed the original position, noting the importance of nuisance as a tort against land. With the highest Court in the nation in Fearn v Tate Gallery reframing nuisance as a tort against land, it appears that Courts have conclusively closed the prospects of relief under nuisance for those whose rights fall short of a legal interest in land such a licensees. Yet the policy imperatives advocating for the converse are not insignificant. Licences are important not only in both the domestic and commercial context. This paper seeks to examine the principles on standing to sue for nuisance to consider whether there is anything to gain from extending its protection to licensees. It argues that there is sufficient reason to afford some protection for licensees, albeit it might best be done not by expanding the tort of nuisance, but through the development of a new tort following Manchester v Dutton as identified by Professor Adam Baker.

Assisted Dying Bill [HL]: ignorance within the House?

Presently, within the United Kingdom, the House of Lords are engaged with the latest challenge to the blanket ban on any and all forms of assisted suicide. The Assisted Dying Bill [HL], which now resides in the Committee Stage, provides an exemption for medical practitioners assisting patients in self-administering medicine to end their lives. The Bill is identical to the previous Bill introduced by Lord Falconer. In light of developments within other foreign jurisdictions, the similarities and, perhaps more significantly, differences between the legislative pieces provide an interesting comparative discussion. The Canadian Medical Assistance in Dying (MAiD) legislation has been in force since 2016 and has since been amended (March 2021). As Canada is somewhat further down the ‘legal road’ in regulating assisted dying, it may prove a fruitful endeavour to use the Canadian developments to assess and predict the possible trajectory of the Assisted Dying Bill in the UK. Features of the Bill reflect similar provisions that have been adjusted or removed in the Canadian legislation, features that are of significant importance and solemnity in the context of those wishing to access assistance in dying. Such examples include that it necessitates that the patient commit the final act, are expected to die within 6 months, and that there must be a ‘reflection period’. Statistical data reporting in Canada has given valuable insight to the provision of MAiD, including some of the features highlighted. The question becomes ‘should the UK Parliament be paying more attention to the Canadian developments in the context of domestic assisted dying Bills?’ Assisted dying is irrefutably embedded deep within many aspects of society. Whether there exists sufficient differences between the societies of the two jurisdictions will determine if the UK is being unnecessarily ignorant or responsibly contextual.

The Herchel Smith Intellectual Property Lecture 2022*The UK courts' striving for consistency with international decisions in patent law

The Patents Court, the Court of Appeal and the Supreme Court (before that, the House of Lords) have all and for many years stressed the need for consistency with decisions of the Boards of Appeal of the EPO. They have also taken account of decisions of the national courts of other EPC member states on many occasions in pursuit of consistency, in relation to validity but also infringement. This lecture will consider: how this has been done; when it has worked well and less well; how it can and should work if the EPO (in particular) changes or develops its law differently from the UK; and how that fits with the law of precedent. It will also consider the issues that may arise with decisions under the UPC.

The Attorney General and contempt of court – some political and constitutional concerns

AbstractThe Attorney General for England and Wales is the Government's Senior Law Officer who, inter alia, initiates certain kinds of legal proceedings. She is also a politician: a member of the House of Commons or the House of Lords and appointed to Government by the Prime Minister. This paper considers the Attorney General's role in initiating contempt proceedings against fellow politicians. I detail a number of cases where politicians have been involved in potential contempts by publication. I argue that, in such cases, the Attorney General's position may amount to an actual or perceived conflict of interest and may breach the principle that justice should be seen to be done.

Kenotic Ecclesiology and the Disestablishment of the Church of England under the Reign of Charles III

AbstractCoronations in Great Britain previously offered an occasion for national civic and spiritual renewal. However, the recent crowning of Charles III threw a spotlight on some of the deepening dissonance, diversity and divisions within British society. This paper is an ‘in principle’ argument for change and development. As the clamour for constitutional reform in the United Kingdom continues, and the awkwardness of Church of England bishops sitting in the House of Lords becomes more apparent, the time is ripe to reconsider disestablishment. In particular, the power and privilege of one denomination over all others is interrogated in relation to a kenotic ecclesiology, and which may now require the intentional divesting of kingly power: not clinging to status any longer, but self-emptying and embracing equality.

THE ILLEGALITY DEFENCE AND SANCTION-SHIFTING: IN DEFENCE OF GRAY V THAMES TRAIN LTD

AbstractThis article considers the rule that a claimant who has been wronged will be denied recovery where the damage flowed from a sanction imposed as a result of their own illegal acts such that compensating the claimant would divert a sanction intended to be imposed on the claimant to the defendant. The article has two purposes. The first aim is to provide a counterweight to the overwhelming body of academic literature critical of Gray v Thames Trains Ltd. in which the House of Lords, in applying the illegality bar found it unnecessary to examine the purpose of the criminal sanction against the claimant, preferring to treat its existence as sufficient to lead to a denial of recovery. The article argues that academic support for adoption of an alternative test of “significant personal responsibility” rests on precarious grounds, depending, as it does, on the “unsatisfactory state of law” and “different policies” arguments. This article reconceptualises the rule in Gray and systematically examines the role played by the theme of consistency between the civil law and criminal law in judicial decision-making. The second aim is to evaluate Gray in light of Patel v Mirza. The article critiques the Supreme Court's inconsistent treatment of deterrence in Henderson v Dorset University NHS Foundation Trust and Stoffel v Grondona, and argues that the way the court in Henderson conceptualised the relationship between Gray and Patel discloses an approach which is more closely aligned with that adopted by the minority in Patel.

DEBATE “ON SOCIALISM” IN THE HOUSE OF LORDS OF THE UNITED KINGDOM IN 1935

Th e author focuses on a one-of-a-kind debate “On Socialism”, which took place in the House of Lords of the British Parliament in the spring of 1935. For a long time, the upper chamber served as a barrier to the implementa-tion of bold social and political legislation. Until the beginning of the 20th century socialists had never been represented in the Parliament. As the Labor Party came into political spotlight and gradually strengthened its positions in the 1920s–1930s, the House of Lords was forced to adapt its composition to changing reali-ties. In 1924, the Labor faction was formed here for the fi rst time. A decade later, the Lords were prepared to seriously discuss the merits and demerits of the social-ist system. Th e article analyzes both the main arguments of the Laborites, who promoted transition to a new social system, and the theses put forward by Con-servatives and Liberals, supporters of the capitalist system. Particular emphasis is placed on the coverage and feedback which the discussion held in Westminster received on the pages of the British press of various political stances. Th e author comes to the conclusion that the arguments put forward by both supporters and opponents of socialism were in many respects similar to the theses that appeared in the course of the discussion in the Lower house of the UK Parliament in 1923. Th is discussion had a similar nature and was the fi rst of this kind in the British history. At the same time, the analyzed debate which took place in the House of Lords more than a decade later, bore an unmistakable imprint of a new era. Th e “Great Depression” of 1929–1933 had an important impact on the worldview of the generation, as it strengthened the conviction of left -wing politicians that capitalism was not the subject to improvement. Opponents of socialism, on the contrary, argued that a socialist future for Britain was not only economically un-tenable, but also dangerous, and incompatible with the unique English national character, based on individualism.

‘Old and unfit for other service?’ Maintaining the Fabric of Parliament c.1660–1760

AbstractThe old palace of Westminster developed organically over the period it was used by parliament. As well as the Lords and the Commons, it was also home to the law courts and a number of people, officials and otherwise, who lived on site. It was also a commercial hub. On occasion, there were initiatives to redevelop the complex but these were never acted upon. Instead, there was a regular programme of replacement of perishables and occasional small‐scale developments in preference to undertaking more dramatic alterations.This article considers the way in which parliament was maintained from the Restoration in 1660 to the accession of George III, the pressures to adapt on those who lived and worked there, and the conflicting interests involved in overseeing the various buildings. Concentrating on the house of lords and drawing on the papers of the lord chamberlain and lord great chamberlain, two of the central figures in managing the palace, it will highlight the tendency to rely on ad hoc solutions. It will also underscore the importance of the complex bureaucratic relationships within the palace, which may have helped preclude a more unified vision for the site.

The Man with Jane: Another Look into Bellamy’s Kitchen

The Man with Jane: Another Look into Bellamy’s Kitchen William F. Long (bio) “The House” and “Bellamy’s,” two sketches by Boz published in the Evening Chronicle on 7 March and 11 April 1835 respectively, contain short, vivid descriptions of some dozen unnamed parliamentarians.1 Their subjects are likely to have been readily recognized by many contemporary readers.2 Seven “originals” were named in 1954 (Carlton) and the identity of a further three suggested more recently (Long). In the present paper, another of the subjects and the circumstances in 1835 which made him noteworthy are considered. The Man with Jane The subjects of Boz’s descriptions, in addition to members of parliament, included the staff of Bellamy’s kitchen, the refreshment-room which served both Houses of Parliament.3 Here, in the second of the sketches, he remarks [End Page 239] on Jane, the “Hebe” of the establishment, who is attending a man the identity of whom has not previously been established: Have you observed the delicate flirtation she has been carrying on with that young man, who displays a large quantity of hair under the back of his hat? He is a constant visitor here, possesses an enviable facility of dispatching brandy and water, and is nearly related to the noble leader of a “section” of the House. Observe the glee with which she listens to something he mutters somewhat unintelligibly in her ear (for his speech is rather thick from some cause or other), and how playfully she digs the handle of a fork into the arm with which he detains her; by way of reply. The man glimpsed flirting with Jane, then, is described by reference to a near relation, who is “the noble leader of a ‘section’ of the House.” This description deserves attention. Characteristics of the Near Relation First, Boz uses the term “the House” in the two sketches to signify specifically the House of Commons. Second, his use of “section” to denote a grouping within it is unusual. “Party,” “faction” or perhaps just “group,” depending on the context, are more common usages. Boz gives some emphasis to the name chosen, perhaps with a hint of irony, by placing it in inverted commas. Third, Boz refers to the head of this group as its “noble leader.” In the parliamentary context of the sketch, this descriptor is not a complimentary comment on the leader’s character. Instead it implies that he is a nobleman. The English nobility, then and now, comprises immediate families of peers. The latter are those who bear a title (duke, marquess, earl, viscount or baron) inherited from an immediate antecedent or bestowed directly by the monarch. Until recently all peers were eligible to sit in the House of Lords.4 In contrast, members of the nobility generally, then and now, have courtesy titles, or honorifics, and are eligible to be elected to sit in the House of Commons. With these points in mind, we may now consider the possible identity of the near relation of the young man glimpsed with Jane. [End Page 240] Groups and their Leaders in the Commons Readily discernible parliamentary groups in the mid-1830s comprised Whigs, Conservatives, Tories, Irish members, and Radicals. The Whigs and the Conservatives/Tories were led in the Commons by Lord John Russell and Sir Robert Peel respectively. The small but influential group of Irish members was led by Daniel O’Connell. The Radicals’ particularly vocal members, for example, Joseph Hume and William Cobbett, might arguably be said to have “led” opinion within this group of otherwise independently operating individuals. Of those mentioned, only Russell and perhaps Peel, as nobleman and near-nobleman respectively, qualify as possible candidates for the role of “near relation” of the man in Bellamy’s. Russell bore the courtesy title “Lord” by virtue of being the son of a peer (the sixth Duke of Bedford), and was formally referred to in the Commons as “the noble lord.” Peel had inherited the baronetcy of his father and was therefore a member of the “gentry,” a grouping at the lower border of the nobility. He was usually referred to as “the honourable baronet,” but also, very occasionally, as...

A comparative study of industry responses to government consultations about alcohol and gambling in the UK.

There is growing evidence that common strategies are used across unhealthy commodity industries (UCIs) to influence policy decisions in line with their commercial interests. To date, there have been relatively few studies comparing corporate political activity (CPA) across UCIs, especially comparing the alcohol and gambling industries. A comparative and inductive thematic analysis of alcohol and gambling industry submissions to two House of Lords (HoL) inquiries in the UK was conducted. Themes in the framing, arguments and strategies used by the alcohol and gambling industries in CPA were compared. Alcohol and gambling industry responses largely used the same framings, both in terms of the problems and solutions. This included arguing that harms are only experienced by a 'minority' of people, emphasising individual responsibility and shifting blame for harms to other industry actors. They promoted targeted or localised solutions to these harms, in place of more effective population level solutions, and emphasised the perceived harms of introducing regulation not in the industries' interests. These findings are consistent with previous literature suggesting that UCIs use the same framing and arguments to shape the narrative around their harms and solutions to those harms. This study also identified novel strategies such as shifting blame of harms to other industry actors. Policy makers should be aware of these strategies to avoid undue industry influence on policy decisions and understanding commonalities in strategies may help to inform more effective public health responses across all UCIs.

Minimum Service Levels During Strikes and the Misuse of Comparative Law

Minimum Service Levels During Strikes and the Misuse of Comparative Law Nicola Countouris (bio) In January 2023, UK Prime Minister Rishi Sunak1 said minimum service levels (MSL) are "present in France, in Italy, in Spain", while then-business secretary Grant Shapps2 claimed the legislation "simply brings us into line […] with many other modern European nations, such as Spain, Italy, France". On more than one occasion, UK government officials have made great use of comparative law arguments to justify the introduction of new, draconian, minimum service level obligations under the Strikes (Minimum Services Levels) Bill 2023, which at the time of writing is nearing its third and final reading in the House of Lords. Almost exactly half a century ago, in June 1973, Sir Otto Kahn-Freund, arguably the founding father of modern UK labour law, delivered a special lecture, later published as an article by the Modern Law Review, entitled "On Uses and Misuses of Comparative Labour Law". In that lecture he warned against the introduction in English law, by means of the 1971 Industrial Relations Act, of a number of "specimens of attempted transatlantic transplantation" (particularly in the domain of collective bargaining, but also some affecting cooling off pauses and compulsory ballots in emergencies) stressing the high risk of "rejection" of these transplants that, the very different British legal, industrial, and political tradition, would most likely identify as a "foreign body" to be expunged. In the case of the key provisions being envisaged by the Strikes (Minimum Services Levels) Bill 2023, it would be perhaps more appropriate to recur to a different metaphor, borrowing not from the science of organ transplant but rather from the literary domain and Mary Shelley's 19th Century three volume novel Frankenstein. In this instance, it is fair to say that the UK government is practicing comparative labour law more or less in the way Dr Frankenstein practices surgery. As the following sections will discuss, the Bill brings together, into a single text and within what is already a rather tormented creature – i.e. the existing British laws on strikes - a selection of restrictions more or less present in other legal systems but that once stitched up together will invariably form a legal abomination, a hideous creature, that will not stand the scrutiny of European and international labour law standards. Poor comparators: Spain and France In a recent commentary3 published by the Institute of Employment Rights, Professor Ewing and Lord John Hendy KC already highlighted the poor choice of comparators for the UK to emulate when introducing MSL legislation. At least since 2018, Spain has been facing complaints before the ILO's Committee of Experts on the Application of Conventions and Recommendations (CEACR) in respect of the "abusive" operation of minimum service levels, ostensibly in breach of Article 3 of Convention 87. More specifically, Spanish unions CCOO and UGT have sent direct requests to the Committee complaining that "in an important number of … essential services, the Government authorities refuse to enter into dialogue with trade unions for the determination of minimum services and instead establish them in a unilateral and abusive manner" something that has "given rise to court judgments finding the determination of minimum services and the replacement of workers abusive"4. In 2023, it was once again put to the CEACR that "the rules on the determination of minimum services continue to be repeatedly violated by the government authorities, and that the CCOO cites, in this regard, 13 recent court rulings that determine, in relation to minimum services, a violation of the right to strike". The Committee has noted "with regret" the Spanish authorities' failures to engage with these allegations in the pasts, reiterating its "requests the Government to provide its comments on the allegations … on the frequent failure by the government authorities to comply with the rules on minimum services". So, to the extent that s.234B of the Bill grants a unilateral and unrestricted power to the Secretary of State to specify minimum service levels, it is safe to suggest that it seeks to transplant within the UK a provision that is already tainted by unlawfulness and incompatibility with international and regional labour standards. France is of...

Diary of a parliamentary intern

As the Genetic Technology (Precision Breeding) Bill makes its way through the House of Lords, Lord Trees' intern Harriet Davenport discusses what it could mean for animals in the UK.

Microcontextual considerations in ouster clause analysis: A comparative study of parallel trends in the United Kingdom and Singapore

Abstract The classic legal approach to legislative ouster clauses in the common law was articulated by the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission. However, recent developments in both the United Kingdom and Singapore indicate a judicial desire to shift away from that approach towards a more flexible analysis of an ouster clause’s effect, centered on the rule of law. This article highlights the significance of those parallel developments, especially given the starkly differing constitutional contexts shaping the approach to ouster clauses in the two jurisdictions. Capitalizing on these trends, it proposes a comparative assessment of the materiality of various microcontextual considerations in ouster clause analysis in the two jurisdictions—considerations such as the nature of the subject matter and the characteristics of the decision-maker—and inquires into the normative implications in each jurisdiction of these developments in ouster clause doctrine.

Exit from periodic joint-tenancy: what “bare trust”, exactly?

Abstract The commercial world runs itself through an intricacy of legal relationships amongst which a tenancy may be one of the most common. The statutory law of the United Kingdom superimposes a trust over every tenancy so that each co-tenant is deemed to be a trustee of each other. Can a co-tenant then ditch his/her cohorts and extinguish a periodic tenancy only to re-contract with the landlord over the very property without committing a breach of trust? This was considered not long ago in Procter v Procter [2022] EWHC 1202 (Ch) and most recently in Pile v Pile [2022] EWHC 2036 (Ch). We trace back to what had been adjudicated by the House of Lords in Hammersmith and Fulham London Borough Council v Monk [1992] 1 AC 478 (HL) three decades ago, scrutinize the sufficiency of a line of authorities developed since then and as they were applied in Procter and Pile, and venture to suggest that the statutory trust is one of its own kind deserving wider and deeper study beyond traditional trust analysis and why.

Early women barristers and the negotiation of professional and political identity

ABSTRACT This article examines the relationship between first-wave feminist political activism and the professional identities of early women lawyers through detailed contextual consideration of two women: Elsie Bowerman and Chrystal Macmillan. Bowerman was a keen member of the Women’s Social and Political Union (WSPU). She was Christabel Pankhurst’s election agent for the 1918 general election and founded the Women’s Guild of Empire with fellow suffragette Flora Drummond. Bowerman was called to the Bar in 1924 and practised until 1938. Chrystal Macmillan was a leading member of the National Union of Women’s Suffrage Societies (NUWSS), the first woman to plead her case in the House of Lords, and a successful barrister whose feminist politics extended beyond the granting of suffrage to women. Much of her post-World War One activism focused on opposing the practice of assigning married women their husband’s identity. This article illuminates the multiple links between Bowerman and Macmillan’s roles as barristers and political activists, by exploring the ways in which complex societal expectations of women’s behaviour interacted with their wish to challenge gendered inequality. Consequently, it complicates our understanding of women entering the professions, feminist activism, and the relationship between law and politics during the late-nineteenth and twentieth centuries.

Institutions Ignored: A History of Select Committee Scrutiny in the House of Lords, 1968–2021

AbstractWithin the vast seam of scholarship on parliamentary history the evolution and role of select committees in the house of lords, particularly in relation to investigatory or policy‐focused committees, has been almost completely overlooked. They have been ‘institutions ignored’. This gap in the existing research base is particularly stark when compared with the very large literature on the history of select committees in the house of commons. This article fills this gap by providing the first detailed historical account of the evolution of investigatory or policy‐focused committees in the house of lords. This account reveals the evolution of a distinctive ‘scrutiny style’ moulded around the notion of complementarity, a highly specialised approach and an understanding of the merits of self‐restraint. However, during 2018–21 a fundamental review of the investigatory committee system was undertaken within the house of lords which led to significant change in relation to both the structure and ambition of committees. The impact of this reform agenda is likely to ensure that select committees in the Lords are far more visible in the future, within and beyond the Palace of Westminster, than they were in the past.