It would be advisable for the Conservative government in both circumstances to apply the doctrine of implied repeal. This creation of Common law involves the simple expedient of enacting legislation that would be inconsistent with the earlier act of Parliament. In this case, it would be necessary to create legislation that would prevent the creation of a Lancashire Assembly or call for its abolition. The provisions of the new act would then prevail over the earlier Lancashire Assembly Act, as in the case of Vauxhall Estates v Minister of health whereby it was concluded that the Housing Act 1925 prevailed over the 1919 Act so far as it was inconsistent with it.
Creating alternative legislation that repeals an earlier act is known as the Legal Postieriores Priores Contrarias Abrogant Rule and relates to the doctrine of Parliamentary Sovereignty whereby Parliament cannot bind its successors. The Conservative government in both cases (1) and (2) can repeal the Act by normal 'simple majority' from both the House of Commons and House of Lords followed by royal assent from the Queen.Although, with only a slight overall majority in the House of Commons, if Conservative MP’s are not loyal to the commitment of the party towards destroying the Lancashire Assembly, gaining a ‘simple’ majority may be difficult.
This instance can be related to the case of Ellen St Estates Ltd v Minister of Health, Lord Justice Maugham, "The Legislature cannot, according to our constitution bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal". This reinforces the idea that under our present constitution no Parliament may bind future ones, even with the written provisions that seem to prevent the repeal of a certain act.
In relation to points three and four these too should not be treated in isolation to one another. Both are merely special provisions the Labour government has introduced to help establish the Lancashire Assembly on a firm footing and avoid or at least prolong its repeal.
For the Lancashire Parliament Act to be repealed, according to the term as stated in section 13 (3), it must gain a two thirds majority on its third reading in the House of Lords. The repealing procedures here have been altered, yet the Labour government are still allowing for the act to be repealed, and the courts will uphold this procedure since it is stated in the Act and does not go against the concept of Parliamentary sovereignty. There is nothing which prevents a Parliament from creating a special procedure for the repealing of certain acts and so the Conservative government should be advised that in order to repeal the act, if section 13 did include these provisions, they would have to comply with them. Illustrating this point is the special procedure created to repeal the act that made Northern Ireland part of the United Kingdom. In this instance the Northern Ireland Act 1998, section 1 requires the holding of a referendum before any legislation to remove Northern Ireland from the United Kingdom can be passed, and therefore for any government to attempt to introduce an act that would repeal the Northern Ireland Act they would certainly be required to hold a referendum with an outcome in the favour of Ireland being removed required. In this case, the present Parliament will have to gain a two-thirds majority on its third reading in the House of Commons for the repeal to be effective. Given such circumstances, it is necessary to state that the present Parliament is unlikely to get two-thirds majority since the Conservative Party returned to power with only a small majority of seats in the House of Commons.
This too is the case for the provision stating the Act cannot be repealed without gaining the assent of the crown, both houses of Parliament, and the written assent of three quartes of the residents of Lancashire. Again the Labour government have not bound the future government, but merely made it more difficult for them to enact legislation concerning the repeal of the assembly. Again here the only way for the Conservtaive government to repeal the act is to comply with the provisions labour have set out.
Excluding the fourth procedure, the first three as stated above are the necessary steps to get any Bill passed to become an valid Act of Parliament. In this instance an additional fourth procedure is set out which must be satisfied before the Act can be repealed. This fourth procedure, like 13 (3) is simply a further special provision created to prevent the Conservative government from repealing the act of Paliament easily. In essence this provision requires the consent of the majority of Lancashire and in order for the Conservative government to repal the Act at least three quarters of Lancashire have to assent to it. This is similar to the earlier mentioned case of the repeal of the Northen Ireland Act, which requires a refendum if it is to be changed. In such a case the courts will enforce the rule that all the steps mentioned within the statute will have to be taken before the repealing of the Act can take place. The Conservative government will therefore, have to ensure that it is able to obtain the written assent of three-quarters of the residents of Lancashire or the Act cannot be repealed.
Although Parliament in essence has not been permanently bound, preventing no repeal of the act, it can be seen that in introducing these provisions the Labour govenrment have partially bound the present Conservative government. The Labour government have partially entrenched the legislation of Section 13 by requiring two special majorities before the act can be repealed, and without these it is likely the courts will hold that Conservative government cannot repeal the Lancashire Assembly Act. This contention is supported by reference to the case of Attorney General for New South Wales v Trethowan [1932] AC 526. The Australian Constitution Act of 1902 was enacted by the legislature of New South Wales and was amended in 1929 by adding section 7A. This section provided that no Bill for abolishing the Legislative Council should be presented to the Governor for His Majesty's assent until it had been approved by a majority of the electors voting upon a submission to them made in accordance with the section; and that the same provision was to apply to a Bill to repeal the section. Following a change in government a Bill was passed through both houses which sought to abolish the upper house and the requirement of a referendum. An injunction was granted by New South Wales court to restrain the government from presenting the bill for royal assent until and unless a majority of electors approved it. On appeal it was held that the requirement of a referendum was binding on the legislature unless it was abolished in the manner and form required by law for the time being. Therefore applying the decision of the courts in this way, the only way for the Conservative government to gain a repeal of the Lancashire Assembly Act is to comply with the implications the Labour government have provided within section 13 (3) and (4). In the unlikely event the Conservatives were able to pass an act of repeal through both houses without a two thirds majority and the consent of Lancashire, and to the Queen for royal assent, it is likely as in the above case the Courts would rule that the requirement of a two thirds majority and a three quarter majority from Lancashire would be binding on the Conservative government, and therefore if they do not comply with this their act of Parliament can be challenged. The Conservative government must therefore endeveour to pass their Bill in the correct procedure to prevent its challenging at a later date.
The remainder of my essay will consider whether, if the Lancashire Assembly Bill had included any of the above provisions, the Queen would be able to refuse it Royal Assent.
In short the answer is yes. The Queen is the superior governing authority of our country and with this holds the ultimate power to choose whether or not to ratify a bill. Should she choose not to that bill will not become an act of parliament. While the power to withhold Royal Assent was once exercised often, as it could be in this case, it is almost never exercised under modern constitutional conventions. This notion of constitutional conduct includes a strong element of what is customairly expected. In this case it is not expected that the Queen will act against the advice of the Prime minister, as to do this would mean she was acting against the will of the public who voted the government into power. And such an act against the will of the people would cause contreversy on the mere existance of the crown. Conventions embrace the idea that the Sovereign usually acts on the advice of his or her ministers. Since these ministers most often maintain the support of Parliament and are the ones who obtain the passage of bills, it is highly improbable that they would advise the Sovereign to withhold Assent. Hence, in modern practice, the Royal Assent is usually granted; a refusal to do so would only be appropriate in an emergency requiring the use of the monarch's reserve powers.
According to the Alternative view Acts of Parliament can be challenged by the courts and some rendered invalid. As could be the case in this instance.
