Constitutional Search and UK Parliament

Dicey’s classic definition has 3 basic points. These are

That parliament is the sovereign law making body and can enact any law it wants on any subject.

No person or body can question the validity of Acts of Parliament. An act can be ineffective but unless repealed it is still valid in the eyes of the court.

No parliament can bind its successors nor be bound by its predecessors, the new act will impliedly repeal the aspects in the old act that the two acts clash about.

The 3 elements that make up the UK’s Parliament are the legislator (the law maker), the executive (who make and implement the policies and law) and the judiciary (who interpret and apply law).

In 1909 the House of Lords rejected the finance bill proposed by the House of Commons, in order to pass the bill the Commons wanted to create more peerages. With the threat of more peers being created, the House of Lords passed the 1911 Act. The impact of the Act was that the House of Lords could not reject money Bills, and that they had a 1 month time limit in which they could suggest amendments. If no amendments were suggested, the money bill proceeds to receive Royal Assent. For all other bills the Lords right to reject was replaced with the right to delay a bill for 2 years spread over 3 parliamentary sessions. It affected the relationship between the two Houses as it removed power from the House of Lords, resulting in an uneven power balance between the Houses of Parliament.

The 1949 Act was passed using the 1911 Act, reducing the delaying power of the Lords from 2 years to 1 year over 2 parliamentary sessions. There was little relationship change between the 2 Houses as an effect of the 1949 Bill.

Lord Hailsham talks of the restrictions on Parliament and effect of Parliament on Britain in his chapter ‘Elective Dictatorship’. He suggests that an elective dictatorship means that although we vote for the Members of Parliament who sit in the House of Commons, they have unlimited power and ineffective controls as there are no ‘limitations imposed by law’. They become dictators who are initially elected, they use Parliament and referendums to ‘justify tyrannical rule’. He suggests that the freedom of the people of Britain has diminished due to the absolute power held by the Parliament, and mostly by the executive.

The only limits on Parliaments sovereignty include moral and political limits; ‘the consciences of its members’, public opinion, and ‘the checks and balances of its different parts and the need for regular elections.’ There are no limitations set out by law, and Hailsham suggests the limits provided are ineffective.

Hailsham states that the House of Commons is dominated by parties causing “almost every division within the House.” [1] Hailsham highlights the possible problem with the results of the first past the post system; that the executive represents a small minority of the minority of the electorate who actually vote and that some of the electorate can hold a disproportionate amount of power.

The party system brings about elective dictatorship by the fact that that party with the majority seats will become the Government, they will be able to pass any law they wish due to the fact they will have to hold a majority seating in the House of Commons, this means that although we may vote for the party who get into power, they then have the possibility to create a dictatorship, because of the small amount of restraints presented upon the party.

Another factor that makes it impossible for the modern House of Commons to function effectively is; the amount of work they have given themselves to do due to the amount of power they have designated to themselves. They produce a huge amount of legislation but Hailsham suggests there is a lack of decent scrutinising; therefore much legislation is passed without appropriate checks. Hailsham also suggests that there’s a problem with professional politicians as “he ceases to be the responsible representative of a free constituency,” [2] if he, for example, is married or has a family as he cannot affront people or cause offence as he’ll become a disreputable party hack, and he will lose popularity and thus will have less support from the electorate.

The role that the Parliament Acts play in promoting the ‘elective dictatorship’ is that, both the 1911 and 1949 acts reduce the limitation on Parliament. They provide a greater freedom for the government to legislate on whatever it likes, however it likes, thus giving it absolute power, meaning that in theory Parliament is supreme.

It promotes the elective dictatorship because reducing of the powers of the House of Lords increased the legislating powers of the House of Commons who became the controlling house with fewer restraints they can pass any law they want. The executive is made of the party with the majority seating in the House of Commons. This creates the opportunity for dictatorship to occur. There are only moral and political restraints on the government and Parliament. As the Government will usual have majority seats in the Commons, they should be able to pass any law they like through the House of Common. With the 1911 and 1949 Acts, the House of Lords have no real power to actually stop the bill becoming an act, thus in theory the Parliament have absolute rule and the Acts promote elective dictatorship as this means that there are less possible restrictions that the Government face when passing any legislation.

The first claimant was Mr John Jackson the chairman of the Countryside alliance, he campaigns on hunting with dogs and other rural issues, the second claimant was Mr Patrick Martin; a professional huntsman employed by Bicester hunt. The third claimant was Mrs Harriet Hughes who works with her husband and son in the family business. All the claimants opposed the hunting ban and propose that the 1949 Act is invalid, and thus so is the hunting ban.

The fundamental issue of law in this case is in relation to the validity of the 1949 Act as it was passed using the 1911 Act, thus the 1911 Act was used to amend itself. The challenge presented by the claimants is to whether this is allowed through the interpretation of the 1911 Act and not to the validity of the Act itself, due to the fact that parliamentary sovereignty would mean that the courts cannot question the validity of Acts of Parliament passed.

The express language used in the 1911 Act suggests that because it specifically identifies what the Bill is excluded from doing, anything else is not excluded, so this means as it is not expressly specified that the act cannot amend itself, yet other Bills (e.g. money Bills) are specified, the bill can in theory be used to amend itself. This is the rule of Expressio unius est exclusio alterius, the express mention of one thing excludes all others. As the Bill expressly excludes certain types of bills (for example money bills) there are no other implied exclusions.

Lord Steyn suggests that the Acts ‘redefine Parliament to be just the Queen and Commons, although of course the Queen, Lords and Commons acting together also remain Parliament’ [3] Steyn tries to establish that this occurs when Parliamentary Act become Acts through only the assent of the Commons and the Queen. However it is argued that the effect of the Parliament Act 1911 was not to redefine Parliament in this way and the Parliament have redefined its elements for ‘the purpose of passing certain legislation’ and that if this is done in the correct manner as stipulated by the Parliament Act 1911 and 1949 the Act of Parliament will be free from legal challenges. This is known as the redefinition theory. [4] It’s relevance to the Jackson case is that because Parliament Act 1949 is passed in accordance with the stipulations set out by the 1911 Act and the Hunting Act is passed in accordance with the stipulations set out by the Parliament Acts of 1911 and 1949, both Acts should be free of any legal challenges, and the challenges proposed by those who oppose the hunting ban should therefore fail.

Lord Hope talks about how the idea of a redefined parliament is a hard concept to grasp and that it doesn’t help determine the case at hand, and that it goes against one of the aspects of the sovereignty of Parliament; that Parliament cannot bind itself. However this is essentially what the Parliament Acts do when removing the power of the Lords.

Baroness Hale agrees with Steyn, she suggests that Parliament can redefine itself in any way “upwards” and “downwards”, and also that Parliament can redesign itself if it decides to, either for a specific reason or for a general. She suggests that through the Bills Parliament can do anything it likes under modern day decision making procedures.

Lord Steyn suggests that the Acts power could be abuse to introduce arbitrary laws. He goes on to say that the future Supreme Court may “consider whether this is constitutional fundamental which even a sovereign Parliament.. cannot abolish” [5] . This suggests that the Lords function of judicial review can be considered to be fundamental to the constitution and such that it cannot be abolished. This would mean the Steyn does not support the idea that the Acts powers could be abused to introduce arbitrary laws.

The Court of Appeal states that the bigger the constitutional change, the less likely it falls under the power of the act. So a change such as to abolish judicial review greatly changes the relationship between the House of Lords and House of Commons would be unlikely to fall under the powers given to the Commons through the 1911 Act. A change like removing judicial review is considered a bigger constitutional change and would not be allowed as would create a big change between the Houses of Parliament.

Lord Nicholls states “implied restriction on the type of legislation for which the new procedure may be employed” [6] this means that the implied restrictions render the express restriction effectual, so the express exclusion, that Parliament cannot lengthen its time in Parliament, cannot be enforced unless other implied restrictions exist. This would suggest that Nicholls agrees with Steyns view.

Lord Hope talks about how the public are protected by the European Convention on Human Rights from an arbitrary government. He questions whether Parliament have created the limit to which it can control the courts, and as it was its ‘last word’ it can’t go any further than it already has. This suggests that Lord Hope thinks that Parliament cannot pass any arbitrary laws abolishing judicial review

However Lord Hope goes on to mention writers who have written about the immortality of the House of Lords, and say that although they have concluded that there is no limitation to what can be done under the 1911 and 1949 Act, this does not mean that the power contributed under the act is limitless.

Baroness Hale says the opposite, that although the Court of Appeal suggest that there is a limit on the usage of the 1911 and 1949 act to only allow minor constitutional changes, it can essentially bring effect to any constitutional change as only one exclusion is stated in the bill, no other exclusions are stated, so due to the language rules no other exclusions would be implied. This suggests that Hale believes that Parliament can enact Acts which introduce arbitrary laws.

Steyn quotes Dicey stating that “the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution… a construct of the common law.” [7] Steyn states that a consequence of a sovereign state would mean that if Parliament ever tried to abolish judicial review, Parliament would have to take it upon its self to decide whether this is possible. If Parliamentary Sovereignty is a common law concept then it is implied that even if by using the 1949 Act, the House of Commons decides to make huge constitutional changes such as abolish judicial review, it would be considered unable, as the courts decide whether to follow laws made by Parliament. Lord Hope goes on to say that the courts are the ultimate controlling factor on the constitution and how that because the courts have heard this specific case, it proves how they place a limit on Parliament. A possible consequence that could flow from this view is that the courts may decide to not follow Acts of Parliament and to not accept that Parliament is sovereign.

Checks and balances are methods that the House of Commons are controlled. They create restrictions on what the Commons can do. The principle of the Sovereign Parliament is beginning to become qualified through measures enacted by Parliament for example through the use of treaties such as the European Communities Act 1972 which limits laws so that English law must comply with the Community law. Treaties must be implemented and thus the courts must implement them in the interpretation of acts. Baroness Hale states that the courts are “not be called a necessary or even desirable check on the over-weening power…” [8] Here she talks about the effectiveness of other checks and balances in comparison with the House of Lords as the elected House of Commons can be beaten by the House of Lords. However using the 1911 Act and 1949 Act the elected House can always get their own way.

The Human Rights Act 1998 provides a ‘check and balance’ in favour of the public’s interest and protects freedom [9] and other acts also limit the powers of Parliament, as they restrict what Parliament can legislate on. However Parliament can amend or repeal the Act, so can change any part of the Act that they are limited by, so this check is somewhat ineffective.

The idea proposed by both Lord Steyn and Hope; that the courts are the ultimate authority controlling Parliament; can be seen as inaccurate, as each branch of the government accept that Parliament is sovereign.

Baroness Hale even indirectly questions the amount of checks that limit Parliament but goes on to say that it is not for the courts to look at. The 1949 Act is one example of how Parliament have managed to erode the checks and balances on itself, to make itself a more sovereign, dominating element of the government with the aim of unrestrained controlling power in the state.