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|PARLIAMENT ACTS (AMENDMENT) BILL [H.L.]|
These notes refer to the Parliament Acts (Amendment) Bill [H.L.] as introduced in the House of Lords on 11th December 2000 [HL Bill 5]
PARLIAMENT ACTS (AMENDMENT) BILL [H.L.]
1. These explanatory notes relate to the Parliament Acts (Amendment) Bill [H.L.] as introduced in the House of Lords on 11th December 2000. They have been prepared by the Lord Donaldson of Lymington with the object of assisting readers of the Bill and of informing debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The issues referred to in the Preamble of the Bill have been raised by, amongst others, the constitutional lawyers Sir William Wade, Professor Zellick and Professor Hood Phillips. The legal basis for their doubts is to be found in the concept that Her Majesty the Queen, acting on the advice and with the consent of both Houses of Parliament, constitutes the only "Sovereign Parliament" and that Her Majesty, acting solely on the advice and with the consent of the House of Commons, constitutes a different type of Parliament whose legislation is secondary in character and limited by the extent of the authority conferred upon it by the Sovereign Parliament. It would follow from this that it would be ultra vires this type of Parliament to amend an Act upon which it depends for its authority.
3. Other constitutional lawyers take a different view and consider that the validity of the Parliament Act 1949 (the 1949 Act) cannot be challenged either because the terms of section 2 of the Parliament Act 1911 (the 1911 Act) are sufficiently wide to give the alternative type of Parliament the authority to enable it to amend the 1911 Act itself or because the courts would decline to rule upon the validity of an Act which purported to be an Act of Parliament.
4. An extra-legal consideration underlying and perhaps reinforcing these doubts is based upon the widespread belief that the 1911 Act ensures that, in the absence of consent from the House of Lords, the House of Commons cannot extend the life of a Parliament beyond five years. If the Parliament Act 1949 has validly amended the Parliament Act 1911, the House of Commons can use the same procedure in order to pave the way for just such an extension or, indeed, for any unilateral variation of the constitution or powers of the House of Lords.
COMMENTARY ON CLAUSES
5. Clause 1 of the Bill deliberately avoids the necessity for Parliament to express any view as to the validity of the 1949 Act by providing that it and those acts passed in reliance upon it, shall be "confirmed". This is the appropriate term if the 1949 Act, and consequentially the War Crimes Act 1991 (the 1991 Act), the European Parliamentary Elections Act 1999 (the 1999 Act) and the Sexual Offences (Amendment) Act 2000 (the 2000 Act) would otherwise be invalid) or if the four Acts are, and always have been, valid and all that is required is a stilling of unfounded doubts. Its purpose is not only to place the validity of the 1949, 1991, 1999 and 2000 Acts beyond question, but indirectly to affirm that in future when using the Parliament Act procedure the House of Commons need only pass the Bill on two occasions (instead of three) and that the time required to elapse between second reading in the Commons in the first of these sessions and its final passing by that House is one year (instead of two).
6. Clause 2 removes the existing exceptions in the parenthesis in section 2(1) of the 1911 Act and reinserts them and adds new exceptions, using an extended lay-out, intended to make the whole more intelligible.
7. Paragraphs 2(a) and (e) reproduce the existing exceptions.
8. Paragraph 2(b) expressly excludes from the scope of section 2(1) of the 1911 Act any Bill containing provisions to vary the constitution or powers of the House of Lords. Some would contend that this was implicit in the 1911 Act.
9. Paragraph 2(c) requires, as a condition of a Bill being enacted without the consent of the House of Lords, that it shall have been "fully discussed and considered" in the last session in which it is passed by the House of Commons before being presented to Her Majesty. This provision will ensure full discussion and consideration at least at a time when the views of the House of Lords will be known. This requirement of full discussion and consideration involves obvious difficulties of definition if unreasonably long discussion is not to be required as a condition of eligibility for enactment under the 1911 Act or if the operation of timetable motions is not to be capable of excluding such eligibility. The solution adopted in the Bill is to leave the issue of whether the condition is satisfied to the judgment of the Speaker of the House of Commons as one of the matters of which he has to take account in deciding whether or not to issue a certificate of compliance under section 2(2) of the 1911 Act. No express reference in the Bill is thought necessary in order to achieve this objective.
10. The proviso ensures that if a Bill has had a Second Reading in the House of Commons, the subsequent enactment of this paragraph shall not prejudice the eligibility of that Bill for enactment under the procedure specified in section 2 of the 1911 Act.
11. Subsection 2(d) prevents the procedure under section 2 of the 1911 Act being used in the future to repeal or amend this Act or to amend the Parliament Acts 1911 and 1949, which have been affirmed by clause 1 of the present Bill. Those who entertain the doubts mentioned in the Preamble to the Bill would contend that this too was implicit in the 1911 Act. Nothing in this paragraph or indeed elsewhere in the Bill purports to, or ever could, in any way fetter the right of Parliament to legislate using the normal procedure involving the consent of both the House of Lords and the House of Commons.
|© Parliamentary copyright 2000||Prepared: 12 December 2000|