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Parliament Act

From Academic Kids

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The Palace of Westminster, also known as the Houses of Parliament.

The Parliament Acts are two Acts of Parliament of the United Kingdom, passed in 1911 and 1949 respectively. They form part of the Constitution of the United Kingdom.

The first Act, the Parliament Act 1911, limited the powers of the House of Lords to block House of Commons legislation, asserting the supremacy of the Commons. The Parliament Act 1911 was amended by the second Act, the Parliament Act 1949, which reduced the power of the Lords further by cutting the time they could delay bills from two years to one.

The Parliament Acts have been used to pass legislation against the wishes of the Lords on only 7 occasions since 1911, one instance being passing of the Parliament Act 1949. Doubts have been raised about the validity of the 1949 Act, and the members of the Countryside Alliance took a case to the Court of Appeal in February 2005 to challenge the validity of the Hunting Act 2004. However, the Court held that the 1949 Act was valid, since it made only minor changes to the 1911 Act and was thus within the scope of the 1911 Act.

A previous Parliament Act, the Parliament Act 1660, was repealed by the Statute Law (Repeals) Act 1969.

Contents

Parliament Act 1911

The long title of the Parliament Act 1911 is:

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.

Background to the 1911 Act

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The 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 the Chancellor of the Exchequer David Lloyd George in 1909, which proposed the introduction of a land tax based on the ideas of the American tax reformer Henry George. This would have had a major effect on large landowners and the Conservative opposition, which consisted mostly of large landowners, had a large majority in the Lords. Furthermore they believed that money should be raised through the introduction of tariffs on imports, thus helping British industry. The Lords voted down the new budget, but the Liberals built on the unpopularity of the Lords to make reducing the power of the Lords an important issue of the general election in January 1910.

The Liberals formed a new minority government following the election, and the Lords subsequently accepted the Budget when the land tax proposal was dropped. However, as a result of the budget dispute, the government introduced the Parliament Bill 1910 to limit the power of the Lords. 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 250 new Liberal peers to neutralise the Conservative majority in the Lords. The Conservative Lords then backed down.

The Parliament Act was intended as a temporary measure: its preamble recites:

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.

However, the Liberal government did not follow through with reform of the Lords, and the composition of the Lords remained much the same for another 50 years. Life peers were introduced in the 1960s, and the Labour government of 1997–2005 took the first steps to reform the Lords, reducing the number of hereditary peers entitled to attend and vote in the Lords, but as of 2005 the second chamber is still not elected.

Provisions of the 1911 Act

The 1911 Act stopped the Lords from vetoing any public legislation that originated in and had been approved by the Commons, and restricted their ability to delay such legislation to one month for "money bills" (dealing with taxation) and two years for other bills. The Speaker certifies which bills are 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 consent of the Lords, if passed by the Commons in three successive sessions, providing two years elapsed between Second Reading and final passing in the Commons.

The only bill the Lords could veto was one to prolong the lifetime of a parliament. The Act could only be used to force through a bill originating in the Commons and so the Lords also retained the power to veto any bill that it had itself initiated. In addition to curtailing the power of the Lords the 1911 Act also amended the Septennial Act 1715, reducing the maximum duration of any parliament from seven years to five, and provided for payment for MPs.

Parliament Act 1949

The 1911 Act was amended in 1949 by the Labour government under Clement Attlee, in order to reduce the power of the Lords further by cutting the time they could delay bills from three sessions over two years to two sessions over one year. The government had embarked on a radical programme of nationalisation and was afraid that this would be blocked. The change was introduced as a Bill in 1947, but the Lords attempted to block this change. The Bill was reintroduced in 1948 and 1949 before the 1911 Act was used to force it through. Use of the 1911 Act required a delay over three "sessions", so a special short "session" of parliament was introduced into 1948, with a King's Speech on 14 September 1948, and prorogation on 25 October. In the end, the amended Parliament Act was never used for the intended purposes 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.

Use of the Parliament Acts

The Parliament Acts have been used only a handful of times. The 1911 Act was used in its unamended form only three times between 1911 and 1949:

  1. Welsh Church Act 1914, under which the Welsh part of the Church of England was disestablished in 1920, becoming the Church in Wales
  2. Home Rule Act 1914, which would have established a Home Rule government in Ireland; its implementation was blocked due to the First World War
  3. Parliament Act 1949, which amended the Parliament Act 1911 (discussed above)

The amended form of the 1911 Act has been used four times in recent years. Since Tony Blair's Labour government came to power in 1997, there has been repeated speculation that the government would rely on the Parliament Acts to reverse a check from the Lords. In the event, the Parliament Acts were not required to enact, for example, the Criminal Justice (Mode of Trial) (No 2) Bill in 2000 (which originally proposed to have give magistrates, not defendants, the choice of where an "either way" offence would be tried). The Parliament Acts cannot be used to force through legislation that starts the parliamentary process in the House of Lords, so they could not be used to enact laws such as the Civil Partnerships Act 2004.

Legislation has been made under the Parliament Acts on the following occasions:

  1. War Crimes Act 1991, which extended jurisdiction of UK courts to cover acts committed on behalf of Nazi Germany during the Second World War (the only time that the Parliament Acts had been used by a Conservative government)
  2. 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
  3. Sexual Offences (Amendment) Act 2000, which equalised the age of consent for male homosexual sexual activities with that for heterosexual and lesbian sexual activities at 16.
  4. Hunting Act 2004, which prohibited hare coursing and (subject to some exceptions) all hunting of wild mammals (particularly foxes) with dogs, taking effect in early 2005.

The first three measures were not mentioned in manifestoes, and hence in trying to veto them the Lords was not breaking the Salisbury convention. The Hunting Bill was mentioned in the Labour Party manifesto for the 2001 general election and depending upon how the wording and the convention are interpreted the attempt to block it could be taken as a breach.

The threat of the Parliament Acts has been employed by British governments on a number of occasions to force the Lords to accept its legislation. In at least three cases, it was possible that the provisions of the Parliament Acts could have been employed, but the legislation was approved by the House of Lords as a result of the government making concessions:

  1. 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"
  2. Trade Union and Labour Relations Act 1976
  3. Aircraft and Shipbuilding Industries Act 1977

Validity of the 1949 Act

Since the 1949 Act was passed, doubts had been raised by legal academics as to whether the use of the 1911 Act to pass the 1949 Act, amending the 1911 Act itself, was valid. Three main concerns were raised:

  • The restriction on the 1911 Act being used to prolong the life of Parliament would not be entrenched if the 1911 Act could be used to amend itself first.
  • 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 exploring its origins (as emanation of parliamentary sovereignty) would not apply.
  • Under 1911 Act, Parliament (that is, the Commons, the Lords and the Sovereign, acting together) could be considered to have delegated its ability to pass legislation to another body (the Commons and the Sovereign, without the Lords). Following legal principles established when the United Kingdom granted legislative powers to assemblies in its colonies in the late 1900s, a subordinate legislative body cannot use the Act under which legislative power was delegated to them to expand their competence without an express power to do so in the enabling Act.

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. [1] (http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldbills/126/2000126.htm). A similar Bill was introduced in the next session also. These Bills did not proceed to a Third Reading.

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 this challenge was rejected. After this, the 1949 Act, and the validity of Acts made under it, remained unchallenged until after the Parliament Acts were used to force through the Hunting Act 2004, when the Countryside Alliance raised the question of the validity of the 1949 Act.

Members of the Alliance took this matter to the High Court and then the Court of Appeal in January and February 2005, but failed to get the 1949 Act overturned as being technically invalid. In the High Court (R. v. H.M. Attorney General, ex parte Jackson (http://www.bailii.org/ew/cases/EWHC/Admin/2005/94.html) [2005] EWHC 94 (Admin), 28 January 2005), the wording of the 1911 Act was held not to imply any entrenchment. 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 may refer to Parliamentary debates in order to determine the meaning of an Act of Parliament did not need to be decided.) The 1949 Act was also held to be primary legislation, but of an unusual sort, since the Courts can rule on whether the provisions of the 1911 Act were complied with. This analysis also applies to the other Acts passed under the Parliament Acts. It was also held that the 1911 Act clearly permits the Parliament Act procedure 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 of Appeal ruling (R. v. H.M. Attorney General, ex parte Jackson (http://www.bailii.org/ew/cases/EWCA/Civ/2005/126.html) [2005] EWCA Civ 126, 16 February 2005) 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 provision of itself prohibiting it being used to extend the lifespan of Parliament). The Court of Appeal refused permission to appeal their decision to the House of Lords, but a petition for permission to appeal may be submitted directly to the Law Lords. A legal action on human rights grounds continues separately.

The consequences of a potential court ruling that the 1949 Act is invalid are unclear. Certainly, the Hunting Act 2004 and the War Crimes Act 1991 would be then invalid. The two other Acts passed under the 1949 Act have both since been replaced by other legislation, so the consequences of them being ruled invalid are unclear - it would not effect the law on the statute books today, but might result in past actions being deemed invalid or illegal.

In principle, the two Acts passed under the provisions of the 1911 Act before it was amended by the 1949 Act should not be affected; however, both changed the composition of Parliament (the Welsh Church Act 1914 removed Welsh bishops from the Lords, and the Government of Ireland Act would have removed Irish MPs from the Commons), and these measures could also be invalid on the basis that they are significant constitutional changes.

Preamble

Acts passed under the Parliament Act have the preamble:

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

rather than the usual preamble, which refers to the advice and consent of the Lords Spiritual and Temporal rather than the Parliament Acts.

See also

References

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