Parliament Acts 1911 and 1949 - Validity of The 1949 Act

Validity of The 1949 Act

Since the 1949 Act became law, doubts were raised by some legal academics as to whether the use of the 1911 Act to pass the 1949 Act, which amended the 1911 Act itself, was valid. 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 restriction.
• 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 18th century, 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).

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. Another Parliament Acts (Amendment) Bill was introduced independently by Lord Renton of Mount Harry in the next session, but neither of these Bills proceeded 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 no record of the legal arguments remains. 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 the War Crimes Act is not under question.

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. In the High Court, 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 could refer to the 1949 Act's Parliamentary debates under the principle established in Pepper v Hart was not decided.

The High Court held that the 1949 Act was primary legislation, despite being unusual in 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 'remodelling' 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). 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.