The significance of the parliament acts 1911 and 1949 for the principle of parliamentary supremacy and the question of what constitutes a valid act
The significance of the parliament acts 1911 and 1949 for the principle of parliamentary supremacy and the question of what constitutes a valid act
''Discuss the significance of the parliament acts 1911 and 1949 for the principle of parliament supremacy and the question of what constitutes a valid act of parliament''
The British constitution has undergone substantial developments from the earlier periods of history and is going through a profound period of constitutional change. Recognised changes have seen the pretentious position of the United Kingdom's place within Europe as a member of and contributor to its institutions. The United Kingdom has seen major reforms of the constitution dating from the 17th century and onwards, these reforms have been implemented in terms of how certain characteristics of the constitution operates, The principles of parliamentary supremacy including legal limitations and constraints which have arisen from the European communities act 1972.
Specifically, the essay will focus on the effect of the preceding concepts on the use of the Parliament Acts 1911/1949 for the principle of Parliament Sovereignty in regards of what constitutes a valid act of Parliament. In order to achieve this we must examine the effects of the Parliament acts mentioned above and the history and nature of constitutional law. Also placing emphasis upon the case of Jackson and Others v Attorney General.1Which is on any outlook a case of major constitutional significance in the sphere of Parliament's sovereignty in the light of the decision of the House of Lords in the above case which considered the question of whether the Parliament Act 1949 and the Hunting Act were valid Acts of Parliament?
Constitutional Law is the fountain head from which other laws flow and drive validity, it can be deemed as a force of power which controls the use of power demonstrated by the Executive. Looking at the provisions of our constitution which essentially arise from source material which together form the whole body of English, Scotland and Northern Ireland law. Constitutional Law is derived partly from custom, but mainly written sources as reports of decided cases and statutes making it precedent based. Where A.V Dicey states in, Law of the constitution said:
'The general principles of the constitution are with us as the result of judicial decisions determining the right of private persons in particular cases brought before the courts'.2
The doctrine of Parliamentary sovereignty, has come to be allied with the name of AV Dicey, asserts there are no legal limits to what Parliament can do. The most conventional meaning of the legislative supremacy of Parliament was adopted by Dicey who described it by:
'The principle of Parliamentary sovereignty means neither more nor less than this, namely that "Parliament" has "the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament."3An example of Parliamentary Supremacy comes from the judicial obedience to legislation enacted by Parliament. In the case of Exp Canon Selwyn4 (1872), a case which raised the question of the validity of the Monarchs assent to the Irish Church Disestablishment Act 1869, Cockburn LJ stated that:
'There is no judicial body in the country by which the validity of an Act of Parliament could be questioned. An Act of the legislature is superior in authority to any court of law. We have only to administer the law as we find it, and no court could pronounce a judgement as to the validity of an Act of Parliament.'
Introduction to the two fundamental pillars of the British Constitution, the Rule of Law and Parliamentary Sovereignty are principles that give rise to potential conflicts when applied to practical constitutional situations and issues. In particular the ...
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'There is no judicial body in the country by which the validity of an Act of Parliament could be questioned. An Act of the legislature is superior in authority to any court of law. We have only to administer the law as we find it, and no court could pronounce a judgement as to the validity of an Act of Parliament.'
Introduction to the two fundamental pillars of the British Constitution, the Rule of Law and Parliamentary Sovereignty are principles that give rise to potential conflicts when applied to practical constitutional situations and issues. In particular the question of definition as to what is a valid act of Parliament has frequently raised disputes in the past as to whether a document before the courts was a valid act of Parliament. The case of Jackson and Others v Attorney General as mentioned above, was a case of highly controversial background which provoked both tenacious oppositions in Parliament and a well organised campaign in the country at large. The HOL would not accept the principle of the Bill and it had to be forced through without their consent using the procedure under the Parliament Acts of 1911/1949.
The main provision of the Parliament Acts 1911/1949 we are concerned with is Section (2) of the Act, which in brief gives ability to the House of Commons to pass a Bill that received Royal Assent without the approval of the HOL5. This redefined the term 'Parliament' in the context of legislations or Acts of Parliament to exclude the House of Lords and asserting the primacy of the House of Commons. In effect, the Parliament Acts provide an alternative mode to which Bills can be passed. Before the 1911 Act, a Bill could be presented for Royal Assent unless and until it had been passed by the HOL and the HOC, as was evident in the case of The Prince's case6. The effect of the 1911 Act as mentioned was to reduce the power of the HOL to that of delaying a Bill for two years to one. Section 2 (21) of the Act allows one exception, and that is that the House of Lords can veto a bill to postpone the general election beyond 5 years. If the HOC's tried to pass the Bill and the HOL's vetoed it, but Royal Assent was given, it would be invalid/bad on its face.
However; the validity of the Acts has faced its challenges. The complex history of the arguments regarding how and under what circumstances the Acts were passed was one of the central issues in the case of Jackson v. A-G. Which intrigued a panel of nine Judges of the HOLs was convened to decide whether the Hunting Act 2004 was a valid Act of Parliament. The appellants in Jackson argued that the legislation passed under the 1911 Act does not constitute primary legislation; rather it is delegated or subordinates legislation. Primary legislation is created by the legislative branch of government whereas Delegated legislation is law made by an Executive authority under powers given to them by Primary legislation in order to implement and administer the requirements of that Primary legislation. Secondly the fact that an Act empowers a particular body of authority to legislate does not - unless specifically stipulated - give that body the power to modify or extend that authority. The appellant's final challenge was that the construction of the 1911 Act does not permit the HOC's to alter its law-making power without the consent of the HOL's.
The HOL's encountered little difficulty in rejecting these arguments. Lord Bingham stated:
'. . . Sections 1(1) and 2(1) of the 1911 Act provide that legislation made in accordance with those provisions shall "become an Act of Parliament on the Royal Assent being signified". The meaning of the expression "Act of Parliament" is not doubtful, ambiguous or obscure . . . It is used, and used only, to denote primary legislation.7
A preliminary issue which must be explored for an act to be valid before the Courts is one of Justiciability; this means that did the courts have enough jurisdictions to challenge the validity of an Act of Parliament. In Jackson the Attorney-General, appearing for the government, accepted that the judges had jurisdiction to decide whether the Hunting Act was or was not a valid Act of Parliament.8 Thus it is well established that the courts cannot look behind an Act of Parliament to investigate the process by which it was enacted. The Bill of Rights Act 1689 protects 'proceedings in parliament' from being impeached or a questioned in any court or place out of parliament.9 In contrast to this Lord Campbell said as long ago as 1842:
'All that the Court of Justice can do is to look to the Parliament roll: if the Bill has passed both Houses and received Royal Assent, then no Court of Justice can enquire into the mode in which it was introduced.'
Furthermore, on this approach the undertaking of the courts is then to apply the test that is identified as the 'enrolled Act' rule which was affirmed in the case of Pickin v. British Railways Board.10This rule allows the courts to classify an act of Parliament, Alternatively if a Bill has been passed by a procedure which is correct to the procedure of Parliament, then it is alike that of an 'enrolled Bill'. In contrast the case of Pickins could be distinguished with Jackson on the basis that it sought to investigate the internal workings and procedures of parliament, whereas in Jackson the case concerned the meaning and effect of legislation.
Another necessity for legislation to be valid is that it must be passed in the 'Manner and Form' required by the constitution. Before the Jackson case the manner and from argument was not raised in any case, for that Parliament has tended to evade imposing upon itself procedural requirements. Signifying that the case has some practical significance in that the manner and form limitations being effective is vital to any attempt to establish constitutional reforms in the future. Arguably every manner and form provision is one distressing the 'powers' of Parliament or dealing with its procedure in enacting laws this was exemplary in, Smith v The Queen11and Marquet v Attorney-General.12Section (128) of the Commonwealth constitution sets out two manner and form requirements of special majorities and Referenda. Failure to comply with procedural requirements was held to mean that the purported legislation was invalid as was noted in a series of precedent cases, Attorney General for New South Wales v Trethowan13and Harris v Minister of the Interior.14
Moving on to reflect upon the case of Jackson in terms of what impact it has had on future developments of the UK Constitution. Firstly although the government had achieved the outcome they sought, the courts were still prepared to review the validity of an Act of Parliament, suggesting a desire for expanding their jurisdiction into areas which are considered as off limits. Secondly the three senior judges made comments regarding the supremacy of Parliament, which were aimed at Dicey's Rule of Law, in that it may be a substantive limitation on legislative competence. The case of Jackson can be recognised as an important sector in the conflict between political and judicial constitutionalism.
However there are arguments suggesting that the developments in the UK constitution, including Devolution and British membership to the European Union show the erosion of Parliamentary supremacy. Devolution has been defined as the delegation of central government without the relinquishment of sovereignty. The most influential development in a loss of national sovereignty and a fragmentation of Parliamentary supremacy has been the UK's membership in 1973 to the European Union since joining the EU, laws tend to be made at a European level rather than at a national level. Although parliament supremacy may still exist it is competing with the supremacy of community law. Case of, Factortame15reflects this principle
The European Court of Justice is a clear example of the erosion of Parliamentary supremacy as it has the power to exercise judicial review over UK law. The European Communities Act 1972 in Section 2(4) states:
'Any enactment passed or to be passed, other than one contained in this part of the Act, shall be construed to have effect subject to the foregoing provision.'
The cases which have been considered in this essay indicate a degree of judicial apprehension with the traditional doctrine of supremacy, in particular the case of Jackson, in which the courts decision meant that further changes to the composition and functions of the HOL may be achieved under Parliament Acts without the consent of the House itself.
We can see that there is conclusive evidence on both sides, which Case law suggests that a statute once passed, cannot be examined in court. It is not clear what would happen should a statute be found invalid on its face, as it has never occurred before. It is certainly clear from the Factortame case that E.C law takes precedence over U.K law. But no statute that has actually been passed through Parliament and assented to by the Queen has ever been challenged.
However case of Jackson overcomes this query as a challenge of validity was made; although it was not successful it raised a number of issues concerning the supremacy of Parliament and future developments. The case of Jackson could be the alternative view before, should another case come before the courts Jackson may then be a constructive precedent. It also begs the question, that should such a similar situation arise, could the U.K remove itself from the E.C? Surely, as a normal statute passed in the ordinary way, it should be able to be repealed in the ordinary way as well. The case of Jackson In a wider context, the concept of Parliamentary Supremacy remains unaffected however, for the first time the courts appear to have checked the formal validity of enacting legislation without intervening on the substantive side.
Bibliography
Books Used:
David Pollard, 'Constitutional and Administrative Law: Text with Materials, 4th Edition '2007, Published by Oxford University press
Jeffrey L. Jowell, Dawn Oliver, 'The Changing Constitution', 6th Edition, 2007, Oxford University press
Dicey, A., 'Introduction to the Study of the Law of the Constitution', 10th Edition, 1902, Published by Macmillan and Co., Ltd, London"-Verso de la p. de t.
Wilfred Bradley, Keith D. Wing, 'Constitutional and Administrative Law', 14th Edition, 2007, Published by Pearson Education
Hilaire Barnett, 'Constitutional and Administrative Law', 5th Edition, 2004, Published by Routledge Cavendish
Journal Articles:
Mullen, Reflections on Jackson v Att.Gen. - Legal Studies Vol. 27 No. 1 March 2007
P. Craig, Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework (1997) PL 467
K. D. Ewing Human Rights Act and Parliamentary Democracy [1999] 62 MLR 79
Websites Used:
Law and Ideology <http://plato.stanford.edu/entries/law-ideology>
Houses of Parliament <http://www.parliament.uk/works/lords.cfm>
Terror detainees win Lords appeal <http://news.bbc.co.uk/1/hi/uk/4100481.stm>
HRA - How it works <http://news.bbc.co.uk/1/hi/uk/946390.stm>
Department for Constitutional Affairs <http://www.dca.gov.uk/hract/hrafaqs.htm>
http://www.lexisnexis.com/lawschool/Login.asp?L=1
http://journals.cambridge.org/action/displayJournal?jid=JFP
http://www.lexisnexis.com/lawschool/Login.asp?L=1
Words Used: 2,200
[2005] UKHL 56, [2006] 1 AC 262
2David Pollard, 'Constitutional And Administrative Law: Text With Materials,'2007,Oxford Uni press pg 3
3 Dicey, A. (1959) Introduction to the Study of the Law of the Constitution (10th ed) pp39
4 Exp Canon Selwyn [1872] 36 JP Jo 54
5 1911 Act, s.2.
6 The Prince's case [1606] 8 Co. Rep. la.
7 David Pollard, 'Constitutional And Administrative Law: Text With Materials,'2007,Oxford Uni press
8 Mullen, Reflections on Jackson v Att.Gen. - Legal Studies Vol. 27 No. 1 March 2007 pg 4
9 Jeffrey L. Jowell, Dawn Oliver, 'The changing constitution', 6th Edition, 2007 Oxford Uni Press
0 [1974] 1 ALL ER 609 (HL)
1 Smith v The Queen [1994] 181 CLR 338, per Deane J at 352-3
2 Marquet v Attorney-General (WA) (2002) 36 WAR 201, per Anderson J at [95]
3 Attorney General for New South Wales v Trethowan [1931] 44 CLR 394
4 Harris v minister of the Interior [1952] (2) 428 (AD)
5 Factortame Ltd. V Secretary of State for Transport [1989] 2 All ER 692 (HL)
