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.
![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
(no subject)
Date: 2004-11-19 04:57 am (UTC)(no subject)
Date: 2004-11-19 05:25 am (UTC)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 :).
(no subject)
Date: 2004-11-19 05:49 am (UTC)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
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.
(no subject)
Date: 2004-11-19 06:10 am (UTC)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).
(no subject)
Date: 2004-11-19 06:43 am (UTC)(no subject)
Date: 2004-11-19 06:59 am (UTC)*Runs off to his car*