Monthly Archives: March 2019

Voyeurism (Offences) Act (2019) – An example of a legislative process


In 2017 a girl called Gina Martin was at a gig with her friends and family. It was a hot day and she was wearing a skirt. During the gig, two men put a mobile phone between her legs and took a picture of her crotch. This act, which is known as ‘upskirting’, was done entirely without her consent. Martin reported it the the Police, but, to her shock, was told that no law had been broken and the man involved could not be arrested. There is a law of ‘outraging public decency’ but the alleged offence did not meet the criteria. Had the man made any physical contact with her an arrest would be possible under other established sexual offenses. This was clearly an area of law that needed clarity as existing law was not fit for purpose.

Gina Martin (right) with a friend at the festival.

Martin shared her story on social media and many women responded with similar stories. It seemed that upskirting was far more prominent than Martin had been aware. An online petition was launched which reached over 50,000 signatures.


Wera Hobhouse, a Liberal Democrat MP, took on he issue and put forward a Private Members Bill.

The issue was taken up by Liberal Democrat MP Wera Hobhouse who in March 2018 introduced a Private Members Bill that sought to criminalise upskirting. Normally, Private Members Bills have a very difficult legislative path and are unlikely to pass. However, after reviewing the issue, the Government decided that they would actively support the bill. This made it much more likely that it would pass.

First Reading – The First Reading took place on the 21.06.2018. No debate takes place during the First Reading but the Second Reading was scheduled for June 2018.

Second Reading – During the Second Reading of the bill a controversial moment occurred. Private Members Bills can be stopped in their passage by the objection of just a single MP. To the disgust of many, a Conservative Backbencher called Christopher Chope objected:

Sir Christopher Chope was widely derided for objecting to the Voyeurism (Offences) Bill at Second Reading.

Chope later explained that he was not objecting in regards to the issue of the bill itself. He said that he was objecting to the fact that the bill was being pushed through second reading without a debate. Chope said:

” The government has been hijacking time that is rightfully that of backbenchers. This is about who controls the House of Commons on Fridays and that’s where I am coming from. I actually support the Bills that were before the house. Four of the 26 Bills that fell at the same time were my own. But this is something I have fought for in most of my time as an MP and it goes to the very heart of the power balance between the government and Parliament. The government is abusing parliamentary time for its own ends and in a democracy this is not acceptable. The government cannot just bring in what it wants on the nod. We don’t quite live in the Putin era yet.”

The Second Reading eventually took place on 03.07.2018 and the motion passed without a division.

Committee Stage – The Public Bill Committee Stage took place between 10.07.2018 and the 12.07.2018. The Committee was made up of 18 members, including Christopher Chope. The Committee heard from a number of experts and stakeholders including:

  • Representatives from the Crown Prosecution Service
  • The Mayor of London, Sadiq Khan
  • Professor Clare McGlynn from the Law School of Durham University

During the Committee Stage some amendments were made to the bill. For example, the proposed offence was limited only to when a person over 18 did it for the purposes of sexual gratification. An amendment that required the Director of Public Prosecutions to issue guidance to police forces was also passed.

Report Stage – The Report Stage in the House of Commons took place on 05.09.2018. Debate took place over a number of issues, including whether perpetrators of the offence should be placed on the Sex Offenders Register.

Grand Committee Stage – As the bill was an ‘English and Welsh’ only issue a Grand Committee Stage took place directly after the Report Stage. This meant that only English and Welsh MPs could vote on further amendments. The Committee consented to the Bill with no amendments.

Third Reading – At 19.44 on the 05.08.2018 (the same day as the Report Stage and Grand Committee Stage) the bill had its Third Reading. The Bill was passed on a voice vote as no members objected.

Lords First Reading – The bill had its first reading in the Lords the very next day. Second Reading was set for late October.

Lords Second Reading – The Second Reading took place on the 23.10.2018. Some key points were made. For example, members of the Lords said that the requirement of a motive of ‘sexual gratification’ could leave a loophole if a picture was taken simply for another purpose, such as for financial gain. The bill passed its Second Reading and went to Committee Stage.

Lords Committee Stage – The Lords Committee Stage took place on the 26.11.2018. As usual in the Lords, it was a committee of the whole house who sat. No amendments were placed on the bill.

In the Lords the whole house can sit on Committee Stages.

Lords Report Stage – The Lords Report Stage took place on the 18.12.2018. This was a straightforward affair because there were no amendments to consider from the Committee Stage. In fact, the Report Stage amounted to one speech with no interventions.

Lords Third Reading – The Third Reading of the Bill took place on 15.01.2019. The bill was passed on a voice vote.

Royal Assent – The bill received Royal Assent on 12.02.2019. The bill is very short, as it is limited to the specific offence of ‘upskirting’.

The bill went through all of its parliamentary stages without a division in either house. This is a clear indication that it was accepted that the issue was a gap in the law that needed fixing.

The full bill can be read here:

Results of the Bill

Gina Martin was rightly praised for bringing the issue to public prominence. She could have been like many other young women who have grown up accepting sexual harassment as ‘just the way it is’. However, she was determined to make a difference and with the help of Wera Hobhouse, she was able to do so. In doing so, she may well have prevented other young women going through the hurt and anguish that she was forced to go through.

Upskirting is now a criminal offence that is punishable by up to two years in prison. The most serious offences could also result in the offender being place on the Sex Offenders Register.

What factors determine the primacy of the House of Commons in Parliament?

Parliament is made up of three constituent parts: the House of Lords, the House of Commons and the Crown-in-Parliament. Traditionally, the House of Lords and Crown were the dominant institutions in Parliament. Firstly, this was because Parliament only sat on the say so of the monarch. For example, when Charles I recalled Parliament in 1640 it was the first Parliament to sit in eleven years.

In 1642 Charles I entered the House of Commons and tried to arrest five of its members.

The House of Lords developed from the Medieval ‘Great Council’ that advised the monarch on matters of state. It was made up of nobles and churchmen. The House of Commons developed in the 13th and 14th centuries and was made up of representatives from the boroughs and shires of England.

The House of Lords remained undoubtedly the dominant House of Parliament until the Great Reform Act of 1832. After this, the trajectory of the powers of the two houses altered, with the Commons increasing and the Lords on the decline.

At the State Opening of Parliament Black Rod (the Queen’s Representative) ceremonially has the door of the House of Commons slammed in his face. This is designed to portray the independence of the House of Commons.

Today, although the House of Lords is called the ‘Upper Chamber’, the House of Commons is undoubtedly the dominant house. There are a number of reasons for this:

1. The Parliament Acts

Between 1909 and 1911 a constitutional crisis emerged over the refusal of the House of Lords to pass Chancellor David Lloyd George’s ‘people’s budget’. The crisis eventually ended with the passing of the Parliament Act (1911). This act removed the power of the House of Lords to block legislation and limited it to delaying legislation for two years. In 1949 the delaying power of the House of Lords was reduced to just one year. This means that if the House of Commons passes the same act for two consecutive parliamentary years, they can use the Parliament Act to bypass the House of Lords. The Parliament Act has only been used on four occasions:

War Crimes Act (1991) – This allowed UK courts to try suspected crimes committed on behalf of Nazi Germany during the Second World War.

European Parliamentary Elections Act (1999) – This changed the voting system used in European Parliamentary Elections in the UK from First Past the Post to the D’Hondt method of proportional representation.

Sexual Offences (Amendment) Act (2000) – This equalized the age of consent for homosexual sex with that of heterosexual sex .

Hunting Act (2004) – This prohibited the use of dogs in the hunting of wild mammals (especially foxes).

Even though it has only been used four times, the very existence of the Parliament Act means that the House of Lords is likely to back down rather than risk the Act being imposed by the House of Commons, meaning its existence is extremely significant. 

2. Financial Privilege

An important parliamentary convention between the two houses is that the House of Commons is solely responsible for financial matters. For example, each year the Chancellor of the Exchequer presents his Budget. This outlines how the government is going to spend and raise money for the year. By convention, the House of Lords do not vote against the Budget.

In 2015 the convention was severely tested when the House of Lords voted against a government motion to cut tax credits. They justified this by saying they had voted against a statutory instrument and not a bill and therefore the financial privilege convention did not apply. Although this was technically correct, the House of Lords were clearly pushing constitutional boundaries in their actions.

The then Chancellor, George Osbrone, was incredibly critical of the House of Lords for rejecting the Tax Credits cuts he planned.

3. The Salisbury Convention

The Salisbury Convention dictates that the House of Lords does not vote against any bill that formed part of the government’s election manifesto. The reason for this is that if a bill formed part of a government’s election manifesto it is reasonable to believe that the passage of that bill is the expressed wish of the electorate. The Salisbury Convention was particularly important in the passage of the House of Lords Act (1999). This act removed all but 92 hereditary peers from the House of Lords and would almost certainly not have passed had the convention not existed.

The Salisbury Convention is complicated by the factor of Hung Parliaments. For example, in May 2010 no one party won the election and therefore no party could claim clear mandate from the electorate. A Coalition Government was formed between the Conservatives and Liberal Democrats. To enable this to happen, a Coalition Agreement was made between the two parties that merged their policies to create a compromise agreement. The Coalition Agreement was never put to the voters, so therefore the Salisbury Convention did not apply.

The Coalition Agreement was made after the 2010 General Election and its plans were therefore not subject to the Salisbury Convention.

Currently, the Conservatives are in government due to a Confidence and Supply agreement with the DUP. This is because the Conservatives only won 318 seats in the 2017 General Election and therefore not enough for a majority. Similarly to 2010-2017, the Salisbury Convention cannot be reasonably expected to apply because the governing party has not received a clear mandate from the electorate.

4. Reasonable Time Convention

An important convention that exists in the House of Lords is that Government business will be considered in “reasonable time”. The Government largely controls the business of the House of Commons and can therefore ensure that their business is prioritised. However, the Government’s control of the House of Lords is much less significant. By convention the Lords agree not to unreasonably delay Government business.

5. Secondary Legislation

Secondary Legislation is law created by the Government under the auspices of a bill that has previously been passed by Parliament. Secondary Legislation is essential in the carrying out of government functions as Parliament would not have time to debate and vote on every single governmental issue that needs clarification. For example, Secondary Legislation under the Misuse of Drugs Act (1971) might add a new drug to the proscribed list of substances. The most common form of Secondary Legislation are Statutory Instruments. Around 3,500 of these are passed every single year.

Although Secondary Legislation is scrutinised by the House of Lords, by convention it only votes against it in ‘exceptional circumstances’. This was another reason why the rejection of Tax Credits cuts by the House of Lords in 2015 was so controversial.

6. The Great Offices of State

It is now an accepted convention that the Great Offices of State will be filled from the House of Commons. The Great Offices of State are: Prime Minister, Foreign Secretary, Home Secretary and Chancellor of the Exchequer. 

The last member of the House of Lords to hold one of the Great Offices of State was Lord Carrington. Between 1979 and 1982 Lord Carrington was Foreign Secretary but resigned in 1982 citing the convention of Individual Ministerial Responsibility for failing to recognise the Argentinian threat to the Falkland Islands.

Lords Carrington was the last holder of a Great Office of State to come from the House of Lords.

The last Prime Minister to govern from the House of Lords was the Marquess of Salisbury in 1902. It is now unthinkable that a Prime Minister could govern from the House of Lords because they would avoid direct scrutiny from the representatives of the the people.

7. Representative Function

The fact that the House of Commons contains the elected representatives of the people gives it a greater legitimacy than the House of Lords. Although the House of Lords contains a number of very eminent and respected figures, the fact that their judgement and performance cannot be held to account by the electorate reduces their political mandate. 

How is Britain’s position in the European Union unique?

Britain joined the European Economic Community (now the European Union) in 1973. A referendum was held in 1975 over whether Britain should remain. At that point 67.2% of Britons voted to remain in the E.E.C.

Since Britain’s accession into the E.E.C the organisation has changed dramatically. With the signing of the Maastricht Treaty in 1993 the E.E.C became the European Union which we would somewhat recognise today.

The European Union is not a simplistic organisation. It is incredibly complex. CGP Grey explains some of the complexities of the European Union in this excellent video:

A number of countries currently want to join the European Union. These include Turkey, Bosnia-Herzegovina and Albania. In order to join the European Union a candidate state has to meet a number of conditions. Each state:

  • Must be a demonstrably stable democracy. They must respect Human Rights and the Rule of Law.
  • Must have the consent of other EU Members in order to join.
  • Must show they are able to take on all the responsibilites of EU Membership. These include accepting the single currency (the Euro) and committing to free movement of people and goods.
  • Must accept all EU Rules and Regulations as they were at the time of their accession.

What is interesting in the case of Britain’s membership of the European Union is that Britain’s current legal status within the EU would not meet these conditions. This is because Britain has negotiate a number of ‘opt-outs’ from the expected conditions of EU membership:

Schengen Agreement

The Schengen Agreement creates an area in which citizens can travel without having to pass through customs and without having to produce a passport. Of 28 current EU Members 22 are members of the Schengen Area. Britain argued that, as an island, Britain was in a unique position that needed special consideration. Britain therefore opted out of the Schengen Agreement.

Countries in blue are members of the Schengen Area. Switzerland and Norway our members of the Schengen Area despite not being in the European Union.

Economic and Monetary Union

As part of the Maastricht Treaty in 1993 it was agreed that a Single Currency would be introduced in the European Union. In 1999 the Euro was introduced and 19 of 28 EU Members currently use the Euro as their currency. The New Labour Government of Tony Blair were keen for Britain to adopt the Euro and promised a referendum on the issue. However, the policy was clearly unpopular and the party backed down over the issue.

Countries in blue use the Euro.

Area of Freedom, Justice and Security

The Area of Freedom, Justice and Security are a set of home and justice policies that all members sign up to implement. For example, members would be required to implement the same border controls and asylum policies. Britain has an opt-out for the full quota of policies, but does participate in some areas.

Countries in blue fully participate in the AFSJ.

Charter of Fundamental Rights

The Charter of Fundamental Rights was signed in 2000. It codifies certain political, social and economic rights of citizens across the European Union. It also gives EU Court’s the power to strike down national laws that do not comply with the charter. Britain has an opt-out from the Charter, meaning EU Courts cannot overturn UK Statutes, meaning Parliament remains sovereign in the UK.

Countries in blue are fill signatories to the Charter of Fundamental Rights

In addition to these opt-outs Britain has a rebate that reduces the amount of money that Britain contributes to the EU Budget each year. The rebate was negotiated by the government of Margaret Thatcher in 1985 and sees a net reduction of 66% in the amount that Britain is expected to pay into the EU Budget.

Margaret Thatcher claimed a major political victory by winning a rebate for Britain’s contribution to the EU Budget.

As the Brexit Date of 29th March 2019 approaches an important consideration needs to be taken into account. If Britain in the future decides to rejoin the European Union, it will not be on her current terms. Britain will almost certainly be forced to adopt the Euro, the Schengen Agreement, the Charter of Fundamental Rights and the Area for Freedom, Justice and Security. In addition, Britain will be expected to pay the full quota of membership fees and would get no rebate on this amount.

If Britain does leave the European Union as planned, it is not something that can be fully reversed in the future. Britain, like the countries currently applying for membership, would have to fully comply with all the normal conditions of membership.

Should the Independent Group’s MPs have abided by the ‘Carswell Convention’?

Since the EU Referendum in June 2016 rumours that a new anti-Brexit centrist political party was soon to emerge have been consistent. Commentators were proved right when on the 18th February 2019 seven Labour MPs resigned and formed the new ‘Independent Group’.

The 11 Independent Group MPs

The founding members were: Luciana Berger, Ann Coffey, Mike Gapes, Chris Leslie, Gavin Shuker, Angela Smith and Chuka Umunna. They were joined the very next day by Labour MP, Joan Ryan.

Two days later on the 20th February the group was joined by three Conservative MPs: Anna Soubry, Sarah Wollaston and Heidi Allen. L

This new Independent Group now has 11 members. This means it is equal in representation to the Liberal Democrats and is the joint fourth largest group of MPs.

One criticism of the new grouping is that they did not resign their seats in Parliament upon their decision to join the Independent Group.

In recent years there has been an emerging convention in the UK Parliament that is known as the Carswell Convention. This dictates that should an MP decide to change political parties, they should resign their seat in Parliament and force a by-election which they can then decide to run in. The logic behind the convention is that if an MP has been elected on the manifesto of a political party then their constituents should be able to confirm their decision to move to a different political party.

MPs ‘crossing the floor’ is not a new phenomena. Winston Churchill left the Conservatives to join the Liberals in 1904 before returning to the Conservatives in 1924.

The Carswell Convention is named after former MP, Douglas Carswell. In August 2014 he left the Conservatives to join UKIP.

He resigned as a Member of Parliament, thereby forcing a by-election in his constituency of Clacton. He then comfortably won this by-election and in doing so became the first member of UKIP to be elected to the UK Parliament.

In September 2014 Conservative MP Mark Reckless followed Carswell’s lead. He joined UKIP and resigned, he then won the the subsequent by-election.

Mark Reckless became the second Conservative MP to defect to UKIP in 2014.

Given the precedent created by these events, members of the Independent Group have been heavily criticised for not abiding with the convention that they should resign their seats. Shadow Chancellor of the Exchequer, John McDonnell said:

“If you splinter of and are going to another political platform have a responsibility to go back to the electorate “

So why haven’t the Independent Group called by-elections to abide by the newly established convention?

  1. They argue that their values haven’t changed, but their parties have.

Members of the Independent Group say that they have made their decision to leave their former parties reluctantly. They say that they have done so because their parties have abandoned the centre-ground of UK Politics. For the ex-Tories, they believe that the party is now being run in the background by the right-wing European Research Group. For those who are ex-Labour, they lament the radical shift to the left that has been bought about since Jeremy Corbyn became Labour Leader. They therefore argue that it is their parties who have changed their position, not them, and they are comfortable that they will still represent their constituents as their constituents wanted when they were elected in June 2017.

2. The Independent Group is not a political party

The Independent Groups is not a registered political party. They do not have a leader (although Chuka Umunna has been elected as spokesman). As the MPs who have defected have not join another party, and therefore technically sit as Independents, the Carswell Convention does not apply. Many MPs have resigned to sit as Independents before and there has been no call for them to call a by-election. For example, Ian Austin resigned from the Labour Party to sit as an Independent on the 22nd February 2019. However, as he does not ‘caucus’ with the Independent Group the calls for him to resign as an MP have been virtually non-existent.

3. It would be electoral suicide

Perhaps the most important reason why the Independent Group MPs have not forced by-elections is because it would be electoral suicide. Britain’s First Past the Post system is notoriously brutal for third parties. The chances of even half of the Independent Group retaining their seats if by-elections were called is slim. Some, like Luciana Berger, have extremely healthy majorities (29,466) and may hold on. Others, like Angela Smith (1,322) would be obliterated in a by-election.

It remains to be seen what impact the Independent Group will have in UK Politics. However, it does show a clear lesson about conventions in the UK constitution. As quickly as they emerge, they can be ignored. For many, this adds weight to the arguments that Britain should transition to a fully codified constitution.