(4) The Primary Legislative Process and Potential for Redesign Flashcards
How do courts distinguish between Primary Legislation and those that hold less significance?
Historically this was done by looking to the parliamentary roll, the vast majority of Acts of Parliament will now bear the following words of enactment;
‘Be it enacted by the Queen’s most Excellent Majesty, by and with the consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: - ‘
Upon distinguishing primary legislation to the courts have authority to challenge or question Acts of Parliament?
If the customary words are present, it is not for the court to question the process by which such legislation was adopted or pose any other question regarding the authority of the act. The Courts are concerned only with the enforcement of the end result, the processes and procedures by which the Act came to be on the statute book are matters for Parliament itself.
What are the means by which Acts of Parliament may be passed?
It is an oversimplification to suggest the only means by which primary legislation can be enacted is through consent of the House of Commons, Lords and Monarch. Indeed, since 1911 there has been a procedure which allows the House of Commons to propose Bills for Royal Assent without agreement from the House of Lords.
What prompted the initiation of the 1911 Act?
The Parliament Act that allowed for this alternative means of enacting Primary Legislation came to be following a dispute between a liberal government who saw a Conservative dominated House of Lords greatly limit there ability to legislate. Following a threat by the Liberal government to persuade the King to pack the House of Lords with Liberal Peers, the House of Lords agreed to the Parliament Act which saw a reduction to it’s powers and enabled this alternative legislative procedure.
How did the 1911 Parliament Act curtail the power of the House of Lords?
Previous powers of veto were done away in place of powers of delay. Following this it was established that any Public Bill that wasn’t (a) a Money Bill or (b) a Bill which purported to extend the life of parliament beyond five years may - following its rejection in two successive session by the upper house - become an ‘Act of Parliament’ without consent from the House of Lords. The House of Lords was transformed from a house of veto to a house of deliberation and revision.
What downplays the significance of the 1911 Act as an alternative means of enacting Acts of Parliament?
Despite the ability of the House of Commons to pass (or threaten to pass) legislation to which the House of Lords does not consent, the procedure has been used relatively sparingly.
How do the courts identify Acts of Parliament passed using the 1911 Act?
An Act passed utilising the Parliament Act procedure will typically bear the following words of enactment;
‘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 authorities of the same, as follows: -‘
What significant question arose from the development of the 1911 & 1949 Acts in regards to Parliamentary Sovereignty?
(1) Does an Act passed under the Parliaments Act procedure enjoy the same legal status as an Act passed by all three elements of Parliament acting in accord? And, if so;
(2) How could an Act passed under the Parliaments Act procedure enjoy the same legal status as an Act passed by the sovereign legislature enacting legislation under the orthodox manner and form?
