It's not over till the fat lady sings....

[caddyman]

I hear on the news that the Countryside Alliance plan to use the courts challenge the legality of the newly passed ban on hunting foxes with dogs.

Over in s0b's journal today he simply states that the lost, and that they should just accept the situation, but it may not be that simple.

This is interesting, because the ban was forced through Parliament using the Parliament Act 1948 which allows the House Commons to over rule the House of Lords if it continually blocks the will of the Commons. Regardless of the rights and wrongs of fox hunting, the constitutional position of the ban is potentially quite muddy. It all depends upon the view the courts take, because the position is not quite as cut and dried as you might think.

There is a fundamental principle in English Law (maybe november_girl can look this up...?) that a body cannot extend powers delegated to it without reference to the delegating body. The original Parliament Act of (I think) 1911 was properly passed by both Houses of Parliament (under threat to swamp the Lords with specially-created Liberal Lords if they did not comply, it has to be said), but the 1948 Act was rejected by the Lords, and pushed through using the 1911 Act. The Parliament Act of 1948 is arguably therefore void, both because it was never properly ratified, and breaches the law on extending delegated power, though this has never, until now, been tested in the courts.

The alternative view is that while this may be true, the fact that it has remained unchallenged for 54 years means that is now de facto valid legislation.

The point is, the principle has never been tested in the courts and has a number of potential constitutional repercussions. Should the courts strike the Act down as unconstitutional, all legislation passed using the Parliament Act 1948 would immediately become invalid, too and disappear from the statute book. Because of the potential constitutional impact, the High Court could conceivably regard the matter as outside its bailiwick and refer the matter up to a higher court for decision.

That would be the House of Lords.

Comments

[jfs.livejournal.com]

But, it has to be said, there's nothing stopping the PM doing exactly what Lloyd George and Asquith did in 1911 - 'asking' the queen to create 250 Labour Peers and then dismantling the Lords from within.

About time too.

[keith-london.livejournal.com]

That's really interesting. I never considered that the 1948 Parliament Act could be deemed invalid. It would upset a lot of established law if it were. I think the House of lords should be abolished, if only to preserve the will of the House of Commons (and an alternative second check on Parliament developed from scratch). I would feel cheated if the Parliament Act was deemed invalid. It also calls into question the competence of lawmakers in general. I really am so tired of the fox hunting issue.

[ephraim.livejournal.com]

Fascinating. Thanks for posting this, Brian, I find this whole subject intriguing. Something that has been puzzling me though... The 1948 Parliament Act allows the commons to over-rule the Lords if the Lords continually block the will of the commons; this much I'm cool with. But who does the final invocation of the act rest with. I've seen that it was the Speaker that invoked it yesterday, but was he acting on the instructions of the Prime minister? Or is it the Speaker himself that decides to use it? Or does it automatically kick in if there is deadlock between the two houses at the end of the parliamentary session?

Whilst I'm not a fan of hunting, I'm not exactly a fan of this particular procedure either. I'd like to know who to blame, praise or ridicule.

[caddyman.livejournal.com]

I'm not sure about who invokes it. I would, imagine it is the Speaker since technically it is the will of the House of Commons that is being blocked, rather than the will of the Government. This is a legal nicety where the Government holds a substantial majority and the Commons is pretty much the Government's tool, but in times of hung Parliaments or minority governments it is a crucial distinction.

[ephraim.livejournal.com]

It is also (to a degree) relevant here, as Blair was being attacked over the fact that earlier in the week he was in favour of the compromise deal, and then the Parliament Act. Whilst I'm no fan of the PM, I'd like to see him bashed for things that he has actually done, rather than for things that the opposition would like us to think he has done.

So - if the Speaker gets to choose to use the PA to force this through on behalf of the overwhelming majority of MPs that voted in favour of a ban, then that's one thing. If he uses the PA on the instruction of the PM, then that's another. And if he has no option but to use it, due to the structure of parliamentary procedure then that's a completely different thing again.

I'm (as can be seen) pretty keen to get to the bottom of this.

[caddyman.livejournal.com]

I don't know where you would find the information on the web, but you might try looking up the works of Vernon Bogdanor, who is a pretty well respected authority on constitutional affairs.

[caffeine-fairy.livejournal.com]

Isn't there a principle of English law that states if the law has been used often enough, it becomes de facto part of the legislation even if it wasn't valid in the first palce? I thought that was the principle of "Common Law"...

[november-girl.livejournal.com]

Sort of. Decisions made in the courts are binding in future cases, unless the court can find a reason that they're not, such as the facts being different. A lot of Emglish law stems from such precedents, and this is the common law. e.g. the basic law of negligence is based on a case called Donaghue -v- Stevenson, rather than any statute (although there have been later statutes regulating certain aspects of it). Whether or not a statute is valid is a separate issue, and does not form part of the common law.

I think that in all likelihood any challenge to the 1948 Act would be rejected on the grounds of public policy, i.e. the House of Lords speak for "we can't think of a legal reason that this outcome shouldn't happen, but ohmigod if we decided that then all hell would break loose so we need to make it a matter of policy that we don't".

[ephraim.livejournal.com]

OK found it.

http://www.parliament.uk/commons/lib/research/notes/snpc-00675.pdf

It seems that the Parliament Act is automatically invoked if the Lords reject a bill in two consecutive sessions (subject to some timing issues), unless the commons say that it shouldn't be put to Royal assent. So strictly speaking it's the law that has invoked the PA.

Of course, if the commons wanted to stop the PA from being invoked then they could do so, but bearing in mind the vast majority in the actual bill votes, I'm guessing that there's no chance that they'd have done that.

The only remaining question in my head is whether or not the bill was put forward to the commons at the time when it was, specifically so that the PA would come into effect if it wasn't ratified. And if it was timed in that way, who was responsible for the timing?

All the stuff about the 1948 "extra" parliamentary session in order to qualify for use of the 1911 PA is really interesting. Gods I love our constitiutional labyrinthe.

[november-girl.livejournal.com]

Gods I love our constitiutional labyrinthe

Do you? Dear God, you've clearly never needed to study it! Fortunately for you I've shifted most of my textbooks on it as they were some of the most boring things I'd ever read, but if you show too much enthusiasm I might just propel you towards the remaining ones and watch you fall asleep within five minutes of opening them.

[ephraim.livejournal.com]

It is the very fact that I have never needed to study it that allows me the luxury of still liking it. And there's a difference between liking the constitution (which of course we don't have, strictly speaking) and liking texts books about it.

[november-girl.livejournal.com]

the constitution (which of course we don't have, strictly speaking)

Yes we do, it's just not codified. Without a constitution Parliament wouldn't exist and nor would the courts, let alone the government.

[ephraim.livejournal.com]

I thought we had a series of laws and acts of parliament rather than a constitution, per se. But then I'm frequently wrong about these things.

[caddyman.livejournal.com]

The entirety of Statute Law, Common Law, Case Law and precedent forms the Constitution, along with various other rules arcane and hidden...

[november-girl.livejournal.com]

There is a fundamental principle in English Law (maybe november_girl can look this up...?) that a body cannot extend powers delegated to it without reference to the delegating body.

Yes.

Something that's been puzzling me - I could have sworn that the television coverage of the Speaker certifying the Bill referred to the Parliament Act 1911 rather than the 1948 Act. Did anyone else hear that?

[oldnick.livejournal.com]

Yes, and the BBC is still refering to it at some length even if not in much detail http://news.bbc.co.uk/1/hi/uk_politics/4024923.stm

Maybe it's Bliar's way of getting the 16 month delay in through the backdoor - give the courts something with which to bounce it?

[caddyman.livejournal.com]

I didn't hear it, but I suppose it depends upon whether the 1948 is a standalone Act, or just inserts amendments to the 1911 Act in which case that is the correct one to refer to.

[winterdrake.livejournal.com]

Hmm. Excuse the ignorant question, but if the 1948 act does not stand on its own, would that mean that it can't be invalidated by the procedure outlined above? Would it's vailidity rest on the 1911 Act, which was properly passed?

Does it in fact qualify as an extension of powers to act if it's an amendment or clarification of an ealier Act?

Confused, Durham :).

[caddyman.livejournal.com]

It turns out I have the year wrong, it's the 1949 Act.

The potential problem, although the more I think on it, I agree that it's only a hypothetical position, as I suspect that the Courts won't rock the boat, is that the 1949 Act is an amendment to the 1911 Act, but passed using the 1911 Act as it then stood, but without Lords' consent. This is where the delegation of powers problem comes in.

Having said that, I think november_girl is probably right in her assessment above (and she's actually paid to do this stuff, I'm only an interested amateur), plus the fact that the Act has been in force so long unchallenged.

The effect of striking down the 1949 Act wouldn't be quite as catastrophic as it could be since this is only the 4th time it's ever been invoked, although the times it was invoked were quite important ones: The War Crimes Act 1991, over European Parliamentary Elections in 1999, and by equalising the Age of Consent for Sexual Acts in 2000.

[november-girl.livejournal.com]

I should probably point out that constitutional law is not my field and that I had to resit the exam in order to pass it. Still, I do deal with the law on a day to day basis, I suppose.

The other thing that occurs to me is that if the Lords refuse to declare the passage of the Bill to be ultra vires, then it's entirely possible it'll all get referred to Strasbourg, who love any opportunity to get one over on the UK government and are entirely unpredictable. This could all blow up into a huge row with the EU (but I don't think it will).

[november-girl.livejournal.com]

That's a nice theory!

[ephraim.livejournal.com]

Cooo! This must mean that I know 3 times as much about driving as many other people... woooo... I'm a driving expert!

*Runs off to his car*