The Constitutional Validity Of An Act
The problem under consideration is related to the constitutional validity of an Act made by the British Parliament and thus gave rise to the noted elementary concepts of British Constitution viz. Supremacy of Parliament including Judicial Review AND Legislative Process including the role of the House of Lords with regard to the legislation. Let’s interrogate each of them separately in order to single out whether the move to repeal the DPA 2004 and introduce Defence Non Purchasing (US) Bill 2010 bypassing the upper chamber is vindicated or not.
In the United Kingdom, in the absence of a written constitution which asserts sovereignty of the people and the sovereignty of the constitution, the vacuum is filled by the doctrine of parliamentary supremacy. Under this doctrine, political sovereignty vests in the people and legal sovereignty vests with parliament. It can make amend or repeal any law and no person or body may question the validity of the laws made by the parliaments.
Thus Parliamentary sovereignty may mean:-
Parliament to be the supreme law making authority which may enact any law on any subject matter;
No parliament may be bound by a predecessor and bind a successor;
No person or body—including courts of law—may question the validity of the parliamentary enactments.
ISSUE NO.1 (Power to amend or repeal an existing law)
Let’s come to the first point of the problem which asserts that the current parliament ignored the wishes of the 2004 parliament by repealing the DPA 2004 thus challenges the power of the British Parliament to repeal or amend any existing law.
As discussed above, the doctrine of Supremacy of Parliament in Britain connotes that Parliament enjoys unlimited powers of legislation and is fully authorized to make, alter or repeal any law concerning anything and no parliament can bind a future parliament that it cannot pass a law or cannot reverse or amend an existing law. British parliament, to put in the phrase of De Leome, can do every thing except to make a man into a woman or vice versa.
In a similar case titled Blackburn vs Attorney General (1971) CA C pleaded that entering into treaty with the Rome would be in contravention of law as it would partly limit the sovereignty of the crown in parliament forever. The court maintained that no doubt the signature of the treaty would be irreversible and thus limit the sovereignty of the United Kingdom as EC regulations and ECJ decision would consequentially happen to be binding on UK and held:-
“Treaty-making powers rest in the Crown, acting on the advice of its ministers and their actions can not be challenged or questioned in the courts. No Parliament could bind its successor, so the Treaty of Rome (which once signed was irrevocable), could be reversed by a subsequent Parliament. Lord Salmon said of Parliament's legislative powers that...it can enact, amend and repeal any legislation it pleases."
Yet in another case titled Vauxhall Estates vs Liverpool Corporation (1932) Avory J held:-
“no Act of Parliament can effectively provide that no future Act shall interfere with its provisions"
It follows, therefore, that each parliament must enjoy the same unlimited power as any parliament before it. No parliament can enact rules which limit future parliaments.
ISSUE No. 2 (Effect of bypassing the House of Lords in Legislative Process)
The second objection put on the legislative process of the Defence Non Purchasing (US) Bill 2010 and repealing the DPA 2004 is that the consent of the House of Lords has not been obtained.
Generally a bill, after having been passed at its third reading is sent for the approval of the other chamber. As most of the bills originate in the House of Commons, they are forwarded to the House of Lords, where they have to pass through similar stages and then sent for Royal Assent. However in certain circumstances discussed hereunder, a bill may become a valid law without the approval of the House of Lords.
Parliament Act 1911 & 1949
The Parliament Act of 1911 placed some significant limitations on the legislative powers of the House of Lords. According to the Act House of Lords could delay the passage of a bill for not more than two years. The Act was amended in 1949 to further curtail the vetoing power of the House of Lords to One month in case of money bills and two years for other bills. If House of Lords do not approve it in the given period, the bill is sent for Royal assent and it becomes law without the approval of the House of Lords.
Speaker’s power to certify a bill as money bill
Another tool to avoid the assent of the Lords is that Speaker of the House of Commons is authorized to certify any bill as money bill, and a money bill, as discussed above, can be delayed only for month and then it can be sent for royal assent and would become law. Money bill is a draft legislation proposing to raise money through taxes or spend public money and it cannot originate in the House of Lords.
Acts passed without consent of the House of Lords
There are instances like War Crimes Act 1991, European Parliamentary Elections Act 1999, Sexual Offences (Amendment) Act 2000, and Hunting Act 2004 where House of Lords had been bypassed.
Besides these enactments, Salisbury Convention/Doctrine also envisages that government proposed legislation included in the election manifesto should get through the House of Lords when the present government has no majority in the upper House since newly elected government has been delivered a verdict by the public through their votes to do so and the public will should not be turned down by the Lords.
In a case titled Countryside Alliance and other vs HM Attorney General and another (2007) the Countryside Alliance challenged the validity of the Hunting Act 2004 which had been passed using the Parliament Act without the approval of the Upper Chamber of the Parliament. Rejecting the pleas the Lord Bingham said that:-
“the Hunting Act 2004 must be taken to reflect the conscience of a majority of the nation. He also said, “ … the present case seems to me pre-eminently one in which respect should be shown to what the House of Commons decided."
ISSUE No. 3 (Supreme Court’s power to review the validity of acts of Parliament or Judicial Review)
After 1st of October 2009, the role of the House of Lords as the UK’s highest court ends by virtue of the Constitutional Reform Act 2005. The Act for the first time expressly recognizes the principle of independence of judiciary by ordaining for a Supreme Court. Law Lords who were members of the House of Lords and could legally take part in voting in the house will retain their membership however they are no more eligible to vote in the House. Judges appointed after October 2009 shall be directly appointed to the Supreme Court and has nothing to do with House of Lords anymore.
Jurisdiction of the Supreme Court and Judicial Review
The jurisdiction of the Supreme Court is almost same as it was when it used to work as a committee of the House of Lords. Its separation from the House of Lords is merely an assurance of its being independent from legislature. The Supreme Court shall continue to work as the final court of appeal in the UK in terms of Civil and Criminal Cases. It shall continue to hear cases of public and constitutional importance however it cannot quash any law made by the parliament except to interpret it and give meaning to it. The parliament continues to be sovereign and as stated above that no person or body—including courts of law—may question the validity of the parliamentary enactments.
In case titled Lee vs Torrington Junction Rly (1871) Willes J held:-
"Are we to act as regents over what is done in Parliament with the consent of the Queen, Lords and commons? I deny that any such authority exists. If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it: but, so long as it exists as law, the courts are bound to obey it."
In another case titled Pickin vs British Railways (1974) the court held:-
"the idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution."
From the foregoing discussions and authorities put-forth from the courts decisions, it can be concluded that the move by the Parliament to repeal DPA 2004 and introducing Defence Non Purchasing (US) Bill 2010 without the consent of the House of Lords is valid and the Supreme Court has no authority to nullify any of the laws made by the Parliament. Parliament in Britain is supreme and can make or alter any law and no parliament can bind its successor in terms of law making.