It's not over till the fat lady sings....
Friday, November 19th, 2004 09:35 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
caddymanI 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![[livejournal.com profile]](https://www.dreamwidth.org/img/external/lj-userinfo.gif)
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 (maybenovember_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.
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.
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(no subject)
Date: 2004-11-19 03:58 am (UTC)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.
(no subject)
Date: 2004-11-19 04:13 am (UTC)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.
(no subject)
Date: 2004-11-19 04:27 am (UTC)(no subject)
Date: 2004-11-19 04:29 am (UTC)Yes we do, it's just not codified. Without a constitution Parliament wouldn't exist and nor would the courts, let alone the government.
(no subject)
Date: 2004-11-19 04:56 am (UTC)(no subject)
Date: 2004-11-19 05:00 am (UTC)