Issues in the Constitutional Reform Bill

REPORT TO THE SECRETARY OF STATE FOR JUSTICE

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The introduction of the Constitutional Reform Bill has given rise to a number of issues, each of which are outlined below.

1. 1. Jurisdiction of the Courts

I have been asked to advise on whether the courts would have jurisdiction to consider the validity of the Constitutional Reform Bill once it has been enacted.

As the Minister will no doubt be aware, the UK system is based upon the notion of Parliamentary sovereignty as espoused by the political theorist Dicey. According to Dicey, the notion of a supreme parliament

“Means neither more or less than this, namely that Parliament has, under the English constitution, the right to make or unmake any law whatever; and further that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”^[1]

As such, Parliamentary sovereignty has three distinct elements. Firstly, Parliament has the ability to pass any type of law that it chooses. Clearly, the Constitutional Reform Bill falls into this category. Secondly, the legal validity of laws that have been passed by Parliament is not open to question. Thirdly, no Parliament has the power to bind a future Parliament.

It is this second aspect of the doctrine that is applicable in this instance. According to Dicey, no person or body has the authority to rule on the validity of any enactments made by Parliament. Some have questioned whether this should be the case if Parliament abuses its position by passing an outrageous or unconstitutional Act. In Pickin v British Railways Board [1974],^[2] this notion was considered and the House of Lords held that they would not be able to question the validity of a statute regardless of its subject matter. This was also confirmed in Manuel v Attorney General [1983],^[3] when it was stated that the duty of the court was to obey and apply every Act of Parliament.

This is known as the enrolled bill rule whereby as long as a Bill has passed through both Houses and received Royal assent then its validity cannot be questioned. Lord Campbell explained the position in Edinburgh & Dalkeith Railway Co. v Wauchope when he said that

“All that a court of justice can look to is the parliamentary roll: they see that an Act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can inquire into the manner in which it was introduced into Parliament, what was done previously to its being introduced, or what passed in Parliament during the various stages of its progress through both Houses of Parliament.”^[4]

In conclusion, therefore the courts would not have jurisdiction to consider the validity of the Constitutional Reform Bill once it has been enacted.

2. 2. Effect of Section 2 of the Parliament Act 2010 on the Constitutional Law Act 2008

As the Minister will no doubt be aware, the Parliament Acts of 1911 and 1949 were introduced to restrict the power of the House of Lords so that they could no longer veto legislation. Thus, under certain circumstances, a Bill may be passed without being approved by the House of Lords. Clearly, this sets a precedent in terms of the ability to enact statutes that change the procedure by which legislation is passed. Clearly, if Parliament is able to ease the passage of legislation in some cases, conversely, it may be possible to make the passage of some statutes more difficult. By prescribing a two-thirds majority rather than a simple majority in both the Commons and the Lords, section 2 of the Parliament Act 2010 is seeking to do just this.

Whilst this is theoretically possible, there is some debate between constitutional theorists over whether this could be done in reality. In Attorney General for New South Wales v Trethowan and Others [1932]^[5] the question was raised as to whether the New South Wales legislature was able to repeal an Act in a manner other than that prescribed within it. The Act in question stated that any Bill abolishing the Legislative Council had to be approved at a referendum. Such a Bill was passed without a referendum being held. The Privy Council ruled that a referendum was required before the Bill could be passed.

In the UK, some theorists have argued that this case is not relevant since the legislature in question was subordinate. Others however claim that the Privy Council decision does apply in the UK since common law accepts that legislation may only be enacted in the manner prescribed by law. Thus, if an Act prescribes that a certain procedure must be followed before it can be amended or repealed, then that is what must be done. If an Act were to be passed in contravention of this requirement, then it would not be an Act of Parliament.

On the other hand, some argue that it is not possible for a sovereign legislative body to protect a statute in this way. Others, however, state that the nature of Parliamentary sovereignty means that Parliament is free to pass a statute that changes the way in which the law is made.

Thus, there is a debate over whether section 2 of the Parliament Act 2010 would protect the 2008 Act from amendment or repeal and it may be that the matter would ultimately have to be decided by the courts.

3. 3. Effect of Section 3 of the Parliament Act 2010 on the Constitutional Law Act 2008

Section 3 states that, “this act shall apply over Acts passed or to be passed.” This was clearly an attempt to entrench the constitutional law of 2008 since it seeks to prevent any future Parliament from amending or repealing the 2008 statute with its reference to future Acts – i.e. “those to be passed.”

It is likely that the implied repeal doctrine would apply to section 3. This would mean that once the Constitutional Reform Bill was passed by Parliament, section 3 would no longer apply. This is because it would be inconsistent with a later statute and in such cases, the general rule is that earlier statute is impliedly repealed in so far as it is inconsistent with the later Act. This was seen in Vauxhall Estates Ltd v Liverpool Corporation [1932]^[6] when the provisions of an earlier Act were held to have been impliedly repealed by the inconsistent provisions of a later statute. Similarly, in Ellen Street Estates Ltd v Minister of Health [1934]^[7], the Housing Acts of 1925 and 1930 impliedly repealed the 1919 Act. Maugham LJ stated that

“The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal.”^[8]

Thus, it would appear as if the attempt in 2010 to bind any future Parliaments has failed. As such, the provisions of section 3 of the Parliament Act 2010 will not be effective to protect the 2008 Act from amendment or repeal.

Conclusion

With regards to the jurisdiction of the courts, the position is that once a statute has been validly passed, under the enrolled bill rule, its validity cannot be questioned by the courts Thus the courts would have no jurisdiction to consider the validity of the Constitutional Reform Bill once it has been enacted.

In terms of the effect of section 2 of the Parliament Act 2010, the matter is a complex one. Some theorists claim that the section would apply whilst others argue that it does not. This matter may therefore have to be left to the courts to determine.

Finally, in relation to section 3 of the Parliament Act 2010, once the Constitutional Reform Bill has been passed, the courts will consider that the 2010 Act has been implicitly repealed to the extent that it is inconsistent with the later statute.

Bibliography

Alder, J. Constitutional and Administrative Law, 6^th edition. London, Palgrave Macmillan, 2007

Allen, M. & Thompson B. Cases and Materials on Constitutional and Administrative Law, 8^th edition. Oxford, OUP, 2005

Barendt, E. An Introduction to Constitutional Law. Oxford, OUP, 1998

Barnett, H. Constitutional and Administrative Law, 6^th edition. London, Routledge Cavendish, 2006

Bradley, A. & Ewing, K. Constitutional and Administrative Law, 14th edition. London, Longman, 2006

Carroll, A. Constitutional and Administrative Law, 4^th edition. London, Longman, 2007

Elkind. J. B. A New Look at Entrenchment. The Modern Law Review, Vol. 50, No. 2 (Mar., 1987), pp. 158-175

Parpworth, N. Constitutional and Administrative Law, 5^th edition. Oxford, OUP, 2008

Taylor, C. Constitutional and Administrative Law. London, Longman 2007

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Footnotes

^[1] Dicey in Alder, J. Constitutional and Administrative Law, p199

^[2] AC 765

^[3] [1983] Ch 77

^[4] Lord Campbell in Edinburgh & Dalkeith Railway Co v Wauchope (1842) 8 CL and F 710

^[5] AC 526

^[6] 1 KB 733

^[7] 1 KB 590

^[8] Maugham LJ in Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590