Since the 1949 Act became law, doubts were raised by legal academics as to whether the use of the 1911 Act to pass the 1949 Act, which amended the 1911 Act itself, was valid.123 Three main concerns were raised:
- The continued ability of the House of Lords to veto a bill to prolong the life of Parliament would not be entrenched if the 1911 Act could be used to amend itself first, removing this The Parliament Acts are two Acts of Parliament of the United Kingdom, passed in 1911 and 1949, that form part of the Constitution of the United Kingdom.4
The first Parliament Act, the Parliament Act 1911 (1 & 2 Geo. 5. c. 13), asserted the supremacy of the House of Commons by limiting the legislation-blocking powers of the House of Lords (the suspensory veto). Provided the provisions of the Act are met, legislation can be passed without the approval of the House of Lords. Additionally, the 1911 Act amended the Septennial Act to reduce the maximum permitted time between general elections from seven years to five years. The first Parliament Act was amended by the second Parliament Act, the Parliament Act 1949 (12, 13 & 14 Geo. 6. c. 103), which further limited the power of the Lords by reducing the time that they could delay bills, from two years to one.1
The Parliament Acts have been used to pass legislation against the wishes of the House of Lords on only seven occasions since 1911, including the passing of the Parliament Act 1949. Some constitutional lawyers had questioned the validity of the 1949 Act; these doubts were settled in 2005 when members of the Countryside Alliance unsuccessfully challenged the validity of the Hunting Act 2004, which had been passed under the auspices of the Act. In October 2005, the House of Lords dismissed the Alliance's appeal against this decision, with an unusually large panel of nine Law Lords holding that the 1949 Act was a valid Act of Parliament.Passing of the Parliament Bill, 1911, from the drawing by S. Begg
Parliament Act 1911
The purpose of the Parliament Act 1911 is explained by its long title:An Act to make provision with respect to the powers of the House of Lords in relation to those of the House of Commons, and to limit the duration of Parliament.1
Background to the 1911 ActDavid Lloyd George
The 1911 Act was a reaction to the clash between the Liberal government and the House of Lords, culminating in the so-called "People's Budget" of 1909. In this Budget, the Chancellor of the Exchequer David Lloyd George proposed the introduction of a land tax based on the ideas of the American tax reformer Henry George.5 This new tax would have had a major effect on large landowners, and was opposed by the Conservative opposition, many of whom were large landowners themselves. The Conservatives believed that money should be raised through the introduction of tariffs on imports, which they claimed would help British industry. Contrary to British constitutional convention, the Conservatives used their large majority in the Lords to vote down the Budget, but the Liberals built on the wide-spread unpopularity of the Lords to make reducing the power of the Lords an important issue of the January 1910 general election.6
The Liberals returned in a hung parliament after the election:7 their call for action against the Lords had energized believers in hereditary principle to vote for the Conservatives, but had failed to generate much interest with the rest of the voting public. The Liberals formed a minority government with the support of the Labour and Irish nationalist MPs. The Lords subsequently accepted the Budget when the land tax proposal was dropped. However, as a result of the dispute over the Budget, the new government introduced resolutions (that would later form the Parliament Bill) to limit the power of the Lords.8 The Prime Minister, Herbert Henry Asquith, asked Edward VII to create sufficient new Liberal peers to pass the Bill if the Lords rejected it. The King assented, provided that Asquith went back to the polls to obtain an explicit mandate for the constitutional change.
The Lords voted this 1910 Bill down, so Asquith called a second general election in December 1910, and again formed a minority government. Edward VII had died in May 1910, but George V agreed that, if necessary, he would create hundreds of new Liberal peers to neutralize the Conservative majority in the Lords.9 The Conservative Lords then backed down, and on 10 August 1911, the House of Lords passed the Parliament Act by a narrow 131-114 vote,10 with the support of some two dozen Conservative peers and eleven of thirteen Lords Spiritual (who normally do not vote).
The Parliament Act was intended as a temporary measure. The preamble states:whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation.11
One of the reasons for the Irish MPs' support for the Parliament Act, and the bitterness of the Unionist resistance, was that the loss of the Lords' veto would make possible Irish Home Rule (i.e. a devolved assembly, similar to those in place in Scotland and Wales since 1997 and in Northern Ireland technically since 2000, but in reality only since May 8, 2007). The
Provisions of the 1911 Act
The 1911 Act prevented the Lords from vetoing any public legislation that originated in and had been approved by the Commons, and imposed a maximum legislative delay of one month for "money bills" (those dealing with taxation) and two years for other types of bill.1 The Speaker was given the power to certify which bills are classified as money bills. If a money bill is not passed by the Lords without amendment within one month after it is received, the bill can be presented for Royal Assent without being passed by the Lords. For other public bills, the 1911 Act originally provided that a rejected bill would become law without the Lords' consent if it were passed by the Commons in three successive sessions, provided that two years elapsed between Second Reading of the bill and its final passing in the Commons.
The 1911 Act still allowed the Lords to veto a bill to prolong the lifetime of a parliament and it could only be used to force through a bill originating in the Commons, so the Lords also retained the power to veto any bill originating within the House of Lords. In addition to curtailing the power of the Lords, the 1911 Act amended the Septennial Act 1715, reducing the maximum duration of any parliament from seven years to five, and provided for Members of Parliament (excluding government ministers) to be paid £400 per year.12
Parliament Act 1949Clement Attlee
Immediately after the Second World War, the Labour government of Clement Attlee decided to amend the 1911 Act to reduce further the power of the Lords, as a result of their fears that their radical programme of nationalization would be delayed by the Lords and hence would not be completed within the life of the parliament.2 The House of Lords did not interfere with nationalizations in 1945 or 1946, but it was feared that the proposed nationalization of the iron and steel industry would be a bridge too far,13 so a bill was introduced in 1947 to reduce the time that the Lords could delay bills, from three sessions over two years to two sessions over one year.1 The Lords attempted to block this change. The Bill was reintroduced in 1948 and again in 1949, before the 1911 Act was finally used to force it through.14 Since the 1911 Act required a delay over three "sessions," a special short "session" of parliament was introduced in 1948, with a King's Speech on 14 September 1948, and prorogation on October 25.1
The amended Parliament Act was never used in the 1940s or 1950s, possibly because the mere threat of it was enough. The Salisbury convention that the Lords would not block government bills that were mentioned in the government's manifesto dates from this time. Salisbury believed that since, in being returned to power, the Government was given a clear mandate for the policies proposed in its manifesto, it would be improper for the Lords to frustrate such legislation.15
Acts passed under the Parliament Act display a modified form of enacting formula:
BE IT ENACTED by The Queen's most Excellent Majesty, by and with the advice and consent of the Commons in this present Parliament assembled, in accordance with the provisions of the Parliament Acts 1911 and 1949, and by the authority of the same, as follows
The usual enacting formula, used on other Acts, also refers to the advice and consent of the Lords Spiritual and Temporal, and omits the reference to the Parliament Acts.
Use of the Parliament Acts
The Parliament Acts have seldom been used. The 1911 Act was used only three times before its amendment in 1949.1 These were:
- Welsh Church Act 1914, under which the Welsh part of the Church of England was disestablished in 1920, becoming the Church in Wales.
- Home Rule Act 1914, which would have established a Home Rule government in Ireland; its implementation was blocked due to the First World War.
- Parliament Act 1949, which amended the Parliament Act 1911 (discussed above).
The amended form of the 1911 Act has been used four times.1 These were:
- War Crimes Act 1991, which extended jurisdiction of UK courts to acts committed on behalf of Nazi Germany during the Second World War (the only time that the Parliament Acts have been used by a Conservative government).
- European Parliamentary Elections Act 1999, which changed the system of elections to the European Parliament from first past the post to a form of proportional representation.
- Sexual Offences (Amendment) Act 2000, which equalized the age of consent for male homosexual sexual activities with that for heterosexual and lesbian sexual activities at 16.
- Hunting Act 2004, which prohibited hare coursing and (subject to some exceptions) all hunting of wild mammals (particularly foxes) with dogs after early 2005.
After Tony Blair's Labour government came to power in 1997, there was repeated speculation that the government would rely on the Parliament Acts to reverse a check from the Lords, but it did not proved necessary. The Parliament Acts were not required to enact, for example, the Criminal Justice (Mode of Trial) (No 2) Bill in 20001 (which originally proposed to give magistrates, not defendants, the choice of where an "either way" offense would be tried) because the government abandoned the bill after a wrecking amendment in the House of Lords. The Parliament Acts cannot be used to force through legislation that originated in the House of Lords, so they could not have been used to enact the Civil Partnerships Act 2004 or the Constitutional Reform Act 2005.
The first three measures for which the act has been used since 1949 were not mentioned in manifestos, and hence in trying to veto them the Lords were not breaking the Salisbury convention. The Hunting Bill was mentioned in the Labour Party manifesto for the 2001 general election, so, depending upon how the convention is interpreted, the attempt to block it could be taken as a breach.
The threat of the Parliament Acts has been employed by several British governments to force the Lords to accept its legislation. In at least three cases, the procedure set out in the Parliament Acts was started, but the legislation was approved by the House of Lords as a result of the government making concessions.1 These were:
- Temperance (Scotland) Act 1913, which allowed the voters in a district to hold a poll to vote on whether their district went "dry" or remained "wet."
- Trade Union and Labour Relations (Amendment) Act 1976, which amended the Trade Union and Labour Relations Act 1974 to reverse changes made to that act as it passed through Parliament.
- Aircraft and Shipbuilding Industries Act 1977, which nationalized large parts of the UK aerospace and shipbuilding industries and established two corporations, British Aerospace and British Shipbuilders.
Validity of the 1949 Act
- The 1949 Act could be considered to be secondary legislation, since it depended for its validity on another Act, the 1911 Act; and the principle that courts will respect an Act of Parliament without enquiring into its origins (an emanation of parliamentary sovereignty) would not apply.
- Under the 1911 Act, Parliament (that is, the Commons and the Lords acting together) delegated its ability to pass legislation to another body (the Commons alone). Following legal principles established when the United Kingdom granted legislative powers to assemblies in its colonies in the late 1700s, a subordinate legislative body cannot use the Act under which legislative power was delegated to it to expand its competence without an express power to do so in the enabling Act (see Declaratory Act).16
To address these concerns, a Law Lord, Lord Donaldson of Lymington, presented a Private Member's Bill in House of Lords in the 2000-2001 session of Parliament (the Parliament Acts (Amendment) Bill), which would have had the effect of confirming the legitimacy of the 1949 Act, but prohibiting any further such uses of the Parliament Act to amend itself, or use of it to further modify or curtail the powers of the House of Lords.1217 Another Parliament Acts (Amendment) Bill was introduced independently by Lord Renton of Mount Harry in the next session,2 but neither of these Bills proceeded to a Third Reading.1
The first legal challenge to the 1949 Act is believed to have been made during the first prosecution for war crimes under the War Crimes Act 1991, R. v. Serafinowicz, but no record of the legal arguments remains.18 Because a second defendant was prosecuted under the War Crimes Act, and was sentenced to life imprisonment and since the War Crimes Act was later amended by both two further acts (the Criminal Justice and Public Order Act 1994 and the Criminal Procedure and Investigations Act 1996), which were passed by both Houses and received royal assent, the validity of War Crimes Act is not under question.18
The 1949 Act, and the validity of Acts made under it, were not questioned in court again until the Parliament Acts were used to pass the Hunting Act 2004. Early in 2005, the Countryside Alliance took a case to court to challenge the validity of the 1949 Act.19 In the High Court, the wording of the 1911 Act was held not to imply any entrenchment.14 Support for this conclusion can be drawn from the parliamentary debates on the 1911 Act, in which an entrenchment clause was considered but rejected, the Government clearly displaying the intention to be able to make such amendments if necessary. However, the 2005 decision was made on other grounds, so the question of whether the Courts could refer to the 1949 Act's Parliamentary debates under the principle established in Pepper v Hart was not decided.14
The High Court held that the 1949 Act was primary legislation, despite the unusual fact that the Courts can rule on whether the provisions of the 1911 Act are complied with. It was held that the 1911 Act clearly permits the procedures specified in the Parliament Acts to be used for "any Public Bill," and this was sufficient to dispose of the argument that the 1911 Act could not be used to amend itself. The Court took the view that the 1911 Act was a 'remodeling' of the constitution rather than a delegation of power.
The subsequent Court of Appeal ruling agreed that the 1949 Act itself was valid, but left open the question of whether the Commons could use the Parliament Act to make significant changes to the constitution (for example, repealing the Parliament Act's provision prohibiting the Act from being used to extend the lifespan of Parliament).20 The Court of Appeal refused to give the Countryside Alliance permission to appeal their decision to the House of Lords; however, a petition for permission to appeal was submitted directly to the Law Lords and granted in July 2005. Argument in the case was heard on 13 and 14 July 2005 by a large committee of nine Law Lords, rather than the normal five. In a unanimous decision, the Law Lords upheld the validity of 1949 Act.21
After the "first stage" of reform of the House of Lords was implemented in the House of Lords Act 1999, the Wakeham Royal Commission reported on the proposal of a "second stage" of reform in January 2000. Subsequently, the government decided to take no action to change the legislative relationship between the House of Commons and the House of Lords.1
In March 2006, it was reported that the Government is considering removing the ability of the Lords to delay legislation that arises as a result of manifesto commitments, and reducing their ability to delay other legislation to a period of 60 days.22
- ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 1.12 Parliamentary Standard Note on the Parliament Acts parliament.uk. Retrieved October 23, 2007.
- ↑ 2.0 2.1 2.2 2.3 House of Lords Hansard for 19 January 2001 (pt 1) - Retrieved October 23, 2007.
- ↑ Is the Parliament Act 1949 invalid? francisbennion.com. Retrieved October 23, 2007.
- ↑ An earlier Act of the Convention Parliament in 1660, entitled "An Act for removing and preventing all Questions and Disputes concerning the assembling and sitting of this present Parliament," is also sometimes known under by the short title of the Parliament Act 1660; it was dissimilar to the modern acts, and was repealed by the Statute Law (Repeals) Act 1969.
- ↑ A revolutionary who won over Victorian liberals newstatesman. Retrieved October 23, 2007.
- ↑ 1909 People's Budgetliberalhistory.org.uk. Retrieved October 23, 2007.
- ↑ Government Formation from a Hung Parliament oup.uk. Retrieved October 23, 2007.
- ↑ Reform and Proposals for Reform Since 1900 parliament.the-stationeryoffice. Retrieved October 23, 2007.
- ↑ Herbert Henry Asquith 1908-16 Liberal number-10.gov. Retrieved October 23, 2007.
- ↑ Joint Committee on House of Lords Reform First Report - Appendix 1: Historical Background parliament.the stationeryoffice. Retrieved October 23, 2007.
- ↑ Text of Parliament Act 1911 swarb.co.uk. Retrieved October 23, 2007.
- ↑ Eric J. Evans. Parliamentary reform, c1770-1918. (Seminar studies in history.) (London: Longman, 2000, ISBN 0582294673)
- ↑ The Parliament Act 1949 parliament.uk. Retrieved October 23, 2007.
- ↑ 14.0 14.1 14.2 R. v. H.M. Attorney General, ex parte Jackson bailii.org. Retrieved October 23, 2007.
- ↑ Library Note: The Salisbury Doctrineparliament.uk. Retrieved October 23, 2007.
- ↑ See, for example, the decision of the Privy Council in R v. Burah (1878) 3 App Cas 889 and in Bribery Commissioner v. Ranasinghe 1965 AC 172.
- ↑ Parliament Acts (Amendment) Bill, Session 1999-2000. - Retrieved October 23, 2007.
- ↑ 18.0 18.1 The Queen on the application of Jackson & Ors and HM Attorney General - Retrieved October 23, 2007.
- ↑ House of Commons Hansard Debates for 11 January 2005 (pt 6) - Retrieved October 23, 2007.
- ↑ R. v. H.M. Attorney General, ex parte Jackson bailii.org. Retrieved October 23, 2007.
- ↑ Jackson v. H.M. Attorney General publications.parliament.uk. Retrieved October 23, 2007.
- ↑ Lords reform moves up the agenda expolitix,com. Retrieved October 23, 2007.
- Evans, Eric J. Parliamentary reform, c1770-1918. (Seminar studies in history.) London: Longman, 2000, ISBN 0582294673.
- How does the Parliament Act work? (The Guardian, 2 July 2003) - Retrieved October 23, 2007.
- Text of the 1911 Act (extracts; as amended by the 1949 Act) - Retrieved October 23, 2007.
- Elliott, Mark. "THE SOVEREIGNTY OF PARLIAMENT, THE HUNTING BAN, AND THE PARLIAMENT ACTS." The Cambridge Law Journal 65 (1) (2006): 1-4. ISSN 0008-1973