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The definition of Parliament
after Jackson: Can the life of
Parliament be extended under
the Parliament Acts 1911
and 1949?
Christopher Forsyth*
There were differences of view in the House of Lords in R (Jackson) v. Attorney General
[2005] U.K.HL. 56; [2006] 1 A.C. 262 over whether it was possible, by utilizing the procedure under section 2 of the Parliament Acts 1911 and 1949, for the House of Commons
by unilateral vote to extend the life of Parliament beyond five years. The logic of Jackson
suggests that this could be done. But while the majority of their Lordships understandably
resisted this conclusion they failed to provide full grounds consistent with the continuing
supremacy of Parliament for this view. This article, basing itself upon Harris v. Minister of
the Interior 1952(2) SA 429(A), argues that the Parliament Acts 1911 and 1949 defined
Parliament in such a way that the extension of the life of Parliament required enactment by
both houses of Parliament. This approach gives meaning to the limit on the life of Parliament
while preserving the supremacy of Parliament.
1. Prologue
The United Kingdom’s constitution is dominated by the principle of parliamentary supremacy (or Parliamentary sovereignty). If Parliament has expressed its will, it is that will
which must prevail in the law of the United Kingdom, however unwise or oppressive it
* Professor of Public Law and Private International Law, University of Cambridge. I am grateful to Professor Anthony Bradley for comments made on the oral presentation on which this paper is based and,
particularly, to Ms. Yvonne Tew of St. Catharine’s College for her valuable research assistance in the
preparation of this paper. Email: [email protected]
I•CON (2011), Vol. 9 No. 1, 132–143
doi: 10.1093/icon/mor019
Can the life of Parliament be extended under the Parliament Acts 1911 and 1949? 133
might be.1 Thus, the constitution of the U.K. knows no doctrine of the judicial review of
acts of Parliament. Even the Human Rights Act 1998, which ingeniously provides special
protection for the fundamental rights enshrined in the European Convention on Human
Rights and Fundamental Freedoms, does not allow the courts to quash legislation.2
The principle of the supremacy of Parliament is much criticized, and it is possible,
though improbable, that the courts will take a bold step in the direction of diluting this
principle and assert a power to review legislation in exceptional circumstances. But
this possibility, while supported by some scholars and the occasional obiter dictum,3
finds no echo from the elected representatives of the people who jealously guard parliamentary supremacy. The attempted exercise of such a power, thus, would be very
controversial, politically, and the outcome impossible to predict.4
However, this article does not intend to discuss whether or not the supremacy of
Parliament remains the foundation of the U.K. constitution. It takes the substantive
status of parliamentary supremacy for granted and, instead, asks and attempts to answer a much more technical though still fundamental question concerning the status
and effect of section 2(1) the Parliament Act 1911 (as amended in 1949). The central
purpose of that provision is to resolve conflicts between the Houses of Parliament. Its
thrust is to provide that if a bill, once passed by the (elected) House of Commons in two
successive sessions of Parliament, is rejected in the (unelected) House of Lords in both
those sessions, then it may be presented to Her Majesty for assent, provided at least one
year has elapsed between the two occasions on which it was passed by the Commons. It
thus provides in essence that, where they differ, the will of the Commons is, after a delay, to
prevail over the will of the House of Lords. The Commons (with the formal assent of Her
Majesty) would ultimately be able to wield the sovereign power.
1
2
3
4
The classic formulation is that of Dicey: “The principle of Parliamentary sovereignty means neither more
nor less than this, namely, that Parliament thus defined has, under the English constitution, the right
to make or unmake any law whatever; and, further, that no person or body is recognised by the law of
England as having a right to override or set aside the legislation of Parliament.” Introduction to the Study
of the Law of the Constitution, 3–4 (8th ed., 1982).
The Human Rights Act does allow the Court to scrutinize legislation for compliance with the Convention
Rights and to declare any incompatibility found, leaving it to the elected authorities to remedy the position. Such a “declaration of incompatibility” has no effect on the continuing validity of the legislation in
question. Human Rights Act 1998, § 4(2) and 4(6). In addition the courts are to interpret legislation “as
far as possible” compatibly with the Convention Rights (Human Rights Act 1998, § 3(1)).
R (Jackson) v. Attorney General [2005] U.K.HL. 56; [2006] 1 A.C. 262, at 302–03, para. 103 (Lord
Steyn): “The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and
absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the
supremacy of Parliament is still the general principle of our constitution. It is a construct of the common
law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise
where the courts may have to qualify a principle established on a different hypothesis of constitutionalism.
In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the
courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider
whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of
a complaisant House of Commons cannot abolish.” See also id. at 303–304, para. 103–107 (Lord Hope).
See Michael Gordon, The Conceptual Foundations of Parliamentary Sovereignty: Reconsidering Jennings and
Wade, Pub. L. 519 (2009); C.J.S. Knight, Bi-Polar Sovereignty Restated, Cambridge L.J. 361 (2009); and
Stuart Lakin, Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution, Oxford
J. Leg. Stud. 709 (2008).
134 I•CON 9 (2011), 132–143
But section 2(1) did more than this. In recognition of the fact that the elected house
might abuse its position and extend the life of Parliament beyond its laid-down term
against the wishes of the House of Lords, it also provided that the section 2 procedure—
whereby a bill might become law after being rejected by the House of Lords—should
not apply to “a Bill containing any provision to extend the maximum duration of Parliament beyond five years.”5 The status of this apparent guarantee of constitutional
propriety is the subject of this article.6
Before turning to this task, a word must be added about the leading decision of the
House of Lords, Jackson v. Attorney-General,7 in which a challenge to the validity of
the Hunting Act 2004 (which had been passed under the section 2 procedure) failed.
Their lordships made it clear that, contrary to the view expressed in several scholarly
works,8 legislation passed by the section 2 procedure was not a form of delegated legislation and, as such, invalid when beyond the power delegated.
The particular argument was that the Parliament Act 1949, which had been
enacted by the section 2 procedure and had, in fact, changed that procedure—in
broad terms, by reducing the period by which the Lords could delay legislation on
which the Commons was determined—was invalid. The argument was that if the
House of Commons, which, with Her Majesty, enacted the 1949 act, was, in fact, a
delegate of the full sovereign Parliament then its powers were limited; in particular,
as a delegate, it could not itself enlarge its own powers. However, that is exactly what
had happened with the 1949 act, which was thus itself invalid, as was the Hunting
Act 2004, since its enactment was in terms of the procedure as altered by the 1949
act. However, the House of Lords in Jackson disagreed. Legislation made under the section 2 procedure was an act of Parliament, and the power of an act of the sovereign
Parliament, howsoever enacted, was boundless. Acts of Parliament, unlike delegated
legislation, cannot be judicially reviewed by U.K. courts precisely because of the doctrine of Parliamentary sovereignty.
This leaves us with the difficulty of how it is possible to reconcile the conclusion that
Parliament has restricted itself through a primary act of Parliament from extending its
5
6
7
8
The special procedure also did not apply to “money bills”; however, they are omitted from this discussion
in the interests of simplicity. A definition of “money bill” will be found in note 15 below.
Unlike many other countries (such as the United States, Canada, Australia, and Germany) the U.K. does not
have fixed-term parliaments but does subject Parliament to a maximum term (after which a general election
must be held). This approach often allows an incumbent prime minister to advise Her Majesty to dissolve Parliament early, thereby, in effect, choosing a date of the general election convenient to his or her party. But
the coalition government that took power after the May 2010 general election has introduced a Fixed Term
Parliaments Bill that, if enacted, will in large measure prevent the early dissolution of Parliament. This bill and
its impact on the principle of parliament sovereignty are discussed below (note 32).
[2005] U.K.HL. 56; [2006] 1 A.C. 262. For commentary on Jackson, see Aileen McHarg, What is Delegated
Legislation?, Pub. L. 539 (2006); Mark Elliott, The Sovereignty of Parliament, the Hunting Ban, and the Parliament Acts, Cambridge L.J. 1 (2006); Richard Ekins, Acts of Parliament and the Parliament Acts, 123 L.Q.R. 91
(2007); Alison Young, Hunting Sovereignty: Jackson v. Attorney General, Pub. L. 187 (2007). Note in particular
Lord Cooke’s spirited criticism of Jackson in A Constitutional Retreat, 122 L.Q.R. 224 (2006).
See O. Hood Phillips, Paul Jackson, & Patricia Leopold, Constitutional and Administrative Law. 80 (8th
ed.), and H.W.R. Wade, Cases in Constitutional Law, Cambridge L.J. 263 (1954) and The Basis of Legal
Sovereignty, Cambridge L.J. 193 (1955); H.W.R. Wade, Constitutional Fundamentals 27 (1980).
Can the life of Parliament be extended under the Parliament Acts 1911 and 1949? 135
life by a unilateral vote of the House of Commons—with the principle that Parliament
is unable to bind itself according to the doctrine of sovereignty. This article argues that
such reconciliation is possible by treating the Parliament Acts of 1911 and 1949 as
redefining what constitutes Parliament according to the subject matter of the proposed
legislation; thus, legislation extending the life of Parliament requires a bicameral Parliament, and a unicameral bill proposing to extend Parliament’s life will be void.
2. The evil constitutional adviser
Now let us make these abstractions concrete. Consider the position of a government
that has just saved the world from the credit crunch and now faces the further challenge of saving the world from global warming. But a general election threatens and,
alas, the people do not seem to appreciate the necessity of allowing the government
to continue its vital work. Might a constitutional adviser—shall we call him Lord Voldemort?—who has read Jackson with care, find a way out of this dilemma? Of course,
the life of Parliament is easily extended (as it has been in the past) by legislation that
passes through both houses and receives the Royal Assent. We can be reasonably confident, though, that such legislation would not get through the House of Lords in the
absence of some grave and profound reason (such as the Second World War)—as long
as the House of Lords is not reformed in a way that diminishes its relative independence from the party politics that dominates the House of Commons.9 However, is there
another way? Could the life of Parliament be extended by the Commons alone without
the concurrence of the House of Lords?
There is a difference of view on this issue between the judges in Jackson. And consideration of that difference of view is potentially fruitful in developing a more subtle
approach to sovereignty than is apparent on the surface of Jackson.
3. Jackson: The parallel route to legislation
Before turning to that difference of view, we need to look more broadly at what was found
in Jackson. The following dictum from Lord Nicholls’s speech may stand for the majority:
Ultimately, in all these cases the question is one of interpretation of the scope of the enabling
power; here, section 2 of the 1911 Act. As to that, the product of the section 2 procedure is
an Act of Parliament. Section 2 so provides. To describe an Act of Parliament made by this
procedure as “delegated” or “subordinate” legislation, with all the connotations attendant on
those expressions, would be an absurd and confusing mis-characterisation. It would be equally
inappropriate to liken the House of Commons to a “delegate” or “agent” when applying the
1911 Act procedure. The appropriate approach, rather, is to recognise that in enacting section
2 the intention of Parliament was to create a second, parallel route by which, with the stated
9
I note en passant the deep irony of our constitution; namely, the extent to which the survival of democracy depends upon the independence of the House of Lords.
136 I•CON 9 (2011), 132–143
exceptions (“other than . . .”), any public Bill introduced in the Commons could become law as an
Act of Parliament. It would be inconsistent with this intention to interpret section 2 as subject to an
inherent, over-arching limitation comparable to that applicable to delegated legislation.10
So legislation made under the Parliament Act procedure (without the consent of the
Lords) is not delegated legislation (and so not of limited power; and so not liable to be
quashed when it exceeds those limits). The Parliament Act procedure creates a “parallel route” for the exercise of the sovereign power. Hence, it followed that, using the
“parallel route,” it was possible to amend section 2(1) of the 1911 act in the way that
it was amended by the 1949 act. And so the challenge to the Hunting Act 2004 failed.
Note that the “stated exceptions” in section 2(1) from the “parallel route” included
“a Bill containing any provision to extend the maximum duration of Parliament beyond five years.” However, if it were possible to amend one part of section 2(1), using
the “parallel route” (as was done in the 1949 amendment), why should it not be possible to amend other parts of it by that route? And, if that were possible, why should
one bill not remove the restriction on legislating to extend the life of Parliament,
allowing another bill to follow hard on its heels to extend the life of Parliament!
4. Extending the life of Parliament: The difference of view
This was the point on which there was a difference of view among their lordships.
Here is Lord Bingham (in a minority of one):
It is unnecessary for resolution of the present case to decide whether the 1911 (and now the
1949) Act could be relied on to extend the maximum duration of Parliament beyond five
years. . . . The Attorney General, however, submits that the 1911, and now the 1949, Act
could in principle be used to amend or delete the reference to the maximum duration of Parliament in the parenthesis to section 2(1), and that a further measure could then be introduced
to extend the maximum duration. . . . It is common ground that section 2(1) in its unamended
form cannot without more be relied on to extend the maximum duration of Parliament, because a public bill to do so is outside the express terms of section 2(1). But there is nothing in
the 1911 Act to provide that it cannot be amended, and even if there were such a provision
it could not bind a successor Parliament. Once it is accepted, as I have accepted, that an Act
passed pursuant to the procedures in section 2(1), as amended in 1949, is in every sense an
Act of Parliament having effect and entitled to recognition as such, I see no basis in the language of section 2(1) or in principle for holding that the parenthesis in that subsection, or for
that matter section 7, are unamendable save with the consent of the Lords. It cannot have
been contemplated that if, however improbably, the Houses found themselves in irreconcilable
deadlock on this point, the government should have to resort to the creation of peers. However
academic the point may be, I think the Attorney General is right.11
[2005] U.K.HL. 56, [2006] 1 A.C. 262, at 291, para. 64.
[2005] U.K.HL. 56, [2006] 1 A.C. 262, at 284, para. 33. The creation of peers alluded to by Lord Bingham refers to the composition of the membership of the upper house of Parliament. Peers (that is, members of
the House of Lords) may be created by Her Majesty (today, by exercising her powers under the Life Peerages
Act 1958). However, since Her Majesty does so on the advice of the prime minister it is possible for a difference
of view between the houses to be resolved by the prime minister’s advising Her Majesty to create sufficient
peers who support the Commons’ view. Still, this has never been done and remains in the realm of theory.
10
11
Can the life of Parliament be extended under the Parliament Acts 1911 and 1949? 137
While Lord Bingham’s view is wholly logical it is also, with due respect, unacceptable, because it puts the survival of democracy at the mercy of Lord Voldemort and
an unpopular majority of the House of Commons slightly mad with fear of a general
election.
Lord Nicholls, on the other hand, makes it plain that Lord Voldemort’s plan could
not succeed; however, he does not really explain why, other than to stress that it was
the intent of Parliament (in enacting section 2[1]) that the life of Parliament could not
be extended in this way. This is what he says:
. . . In summary, leaving aside money Bills, for which the Act makes separate provision, the sole
significant exception from the generality of “any public Bill” in section 2 is a Bill extending the
duration of Parliament.
This latter exclusion is a provision of major constitutional importance. . . . The wording of section 2(1) of the 1911 Act makes clear beyond a peradventure that when enacting this statute
Parliament intended the Commons should not be able, by use of the new section 2 procedure,
unilaterally to extend the duration of Parliament beyond this newly-reduced limit of five years.
So much is apparent from the express language of the Act. But would it be open to the House
of Commons to do indirectly by two stages what the House cannot do directly in one stage? . . .
[C]ould the section 2 procedure be used to force through a Bill deleting from section 2 the words
“or a Bill containing any provision to extend the maximum duration of Parliament beyond five
years”? If this were possible, the Commons could then use the section 2 procedure to pass a Bill
extending the duration of Parliament.
In my view the answer to these questions is a firm “no.” The Act setting up the new procedure
expressly excludes its use for legislation extending the duration of Parliament. That express exclusion carries with it, by necessary implication, a like exclusion in respect of legislation aimed
at achieving the same result by two steps rather than one. If this were not so the express legislative intention could readily be defeated.
Thus far, therefore, it is apparent that in one significant respect there is to be found in section 2 an
implied restriction on the type of legislation for which the new procedure may be employed.12
But this concentration on the intent of Parliament elides the classic conceptual difficulty over the nature of sovereignty. If Parliament is sovereign it can do all things. Can
it then bind itself not to legislate in a particular way? No, it cannot for that would be to
deny its continuing sovereignty.13 So how, then, could Parliament by the enactment
of the limitation on extending the life of Parliament, deprive Parliament of the power
to remove that limitation? And, what is more, it is not even by express words but by
implication that Parliament’s power has been restricted. What is the justification for
this limitation?
(2005) U.K.HL. 56, (2006) 1 A.C. 262, at para. 56–62. Money bills refer to public bills which, in the
opinion of the Speaker of the House of Commons, solely concern national taxation or the appropriation of
public funds and the redemption of public debt (section 1(2) Parliament Act 1911). The House of Lords’s
power to delay such measures is limited to one month (section 1(1) of the 1911 Act).
13
H.W.R. Wade, The Basis of Legal Sovereignty, Cambridge L.J. 172 (1955). Several commentators argue that
the doctrine of supremacy does not prevent Parliament from binding itself as to the “manner and form”
of future legislation. See Sir Ivor Jennings, The Law and the Constitution, 140–45 (5th ed., 1958) and R.V.F.
Heuston, Essays in Constitutional Law, chap. 1 (2nd ed., 1964). For arguments regarding the rule of law
as a limitation on Parliamentary sovereignty, see T.R.S. Allan, The Limits of Parliamentary Sovereignty,
Pub. L. 614 (1985) and Sir John Laws, Law and Democracy Pub. L. 72 (1995).
12
138 I•CON 9 (2011), 132–143
One could develop a theory of implied statutory limitation similar to the theory,
mentioned en passant above, that the common law limits the power of Parliament in
exceptional circumstances.14 Just as it is argued that Parliament lacks the power to
abolish judicial independence or judicial review of executive action, it might be argued
that Parliament lacks the power to extend the life of Parliament other than by bicameral legislation. Nevertheless, for the reasons I have given in Administrative Law,15
I find such theories unpersuasive, although, I suppose, it is constitutionally more
proper to “find” a restriction implied in a statute than to invent it from the common
law. The relevant passage is as follows:
But are there, none the less, limits on the power of Parliament? Several distinguished judges
have indeed suggested extra-judicially that constitutional fundamentals such as the rule of
law, judicial independence and judicial review may be beyond the power of Parliament to abolish.16 And in a leading decision of the House of Lords there have been obiter dicta to like effect.17
Lord Steyn, for instance, said that if an Act purported to abolish judicial review the courts
would have to “consider whether [judicial review] is a constitutional fundamental which even
a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”18 Even these tentative remarks have provoked several effective responses,19 including one
from Lord Bingham,20 defending the orthodox view. Such theoretical justification as exists for
these assertions of judicial power over the legislature rest on the proposition that the doctrine
of Parliamentary sovereignty was created by the judges developing the common law and so
the judges can abolish it.21 But as Lord Bingham remarks “the principle of Parliamentary
sovereignty has been recognised as fundamental in this country not because the judges
invented it but because it has for centuries been accepted as such by judges and others
officially concerned in the operation of our constitutional system. The judges did not by
See supra note 4.
H.W.R. Wade & C. F. Forsyth, Administrative Law 25 (10th ed., 2009).
16
For such suggestions made by Lord Woolf MR, Laws and Sedley LJJ and by Lord Cooke of Thorndon, and
for the riposte of Lord Irvine QC (as he then was) (“judicial supremacism” prompted by “extra-judicial
romanticism”), see Judges and Decision-Makers: the Theory and Practice of Wednesbury Review, Pub. L. 59,
75 (1996) and below, Adam Tomkins, Our Republican Constitution 40 (2003). For further discussion, see
Thomas Poole, Back to the Future? Unearthing the Theory of Common Law Constitutionalism, 23 Oxford
J. Leg. Stud. 435 (2003) and Adam Tomkins, Our Republican Constitution chap. 1 (2003).
17
R (Jackson) v. Attorney General (2005) U.K.HL. 56, (2006) 1 A.C. 262.
18
Id. at 302–303, para. 102. Baroness Hale said that the courts “might even reject” legislation of this kind:
id. at 318, para. 159. See also Lord Hope at 308, para. 120. Judicial review in this context refers to judicial
review of acts and decisions of the executive, not acts of Parliament.
19
See Richard Ekins, Acts of Parliament and the Parliament Acts, 123 L.Q.R. 91 (2003) and Jeffrey Goldsworthy, Is Parliament Sovereign?: Recent Challenges to the Doctrine of Parliamentary Sovereignty, 3 New Zealand
J. Pub. & Int’l L. 7 (2005).
20
Lord Bingham, Commemoration Oration 2007, “The Rule of Law and the Sovereignty of Parliament,”
(Oct. 31, 2007), King’s College London, http://www.kcl.ac.uk/media/speeches.html (transcript available at http://www.kcl.ac.uk/content/1/c6/01/45/18/TheRuleofLawandtheSovereigntyofParliament.
pdf). This address can also be found in Tom Bingham, The Rule of Law (2010).
21
See also Jeffrey Jowell, Parliamentary Sovereignty under the New Constitutional Hypothesis, Pub. L. 562
(2006), who considers that “the preconditions of any constitutional democracy, properly so-called, is respect for certain rights that neither the executive nor the legislature, representative as it may be, should
be able to deny with impunity” and, on this hypothesis, Parliament’s power to intrude upon such fundamental rights is limited.
14
15
Can the life of Parliament be extended under the Parliament Acts 1911 and 1949? 139
themselves establish the principle and they cannot, by themselves, change it.”22 Its vigour
depends not only upon the judges’ loyalty to it but upon its acceptance by the relevant officials
in all the branches of government. As Lord Millett said in another case “the doctrine of Parliamentary supremacy is [not] sacrosanct, but . . . any change in a fundamental constitutional
principle should be the consequence of deliberate legislative action and not judicial activism,
however well meaning.”23
The constitution is by its nature infinitely flexible and will adapt itself to whatever
happens. But if the judiciary frustrated by the failings of the elected legislature were
to assert a power to hold Acts of Parliament invalid it would be stepping from law into
politics and the outcome of its efforts impossible to predict.24
What needs to be found, then, is a way in which the restriction on extending the life
of Parliament is effective but that does not, on the one hand, involve treating legislation under section 2(1) as delegated legislation—since this route is clearly closed by
Jackson. And, on the other hand, does not involve asserting a power in Parliament to
bind itself (and so destroy its sovereignty).
5. The necessity of redefining Parliament
It seems to me that, although there is some awkwardness, this drives one to see section
2(1) as a redefinition of Parliament. Sometimes the sovereign power of Parliament is
vested in the House of Commons and Her Majesty acting “in accordance with the provisions of the Parliament Acts 1911 and 1949, and by the authority of the same.”25
And sometimes the sovereign power of Parliament is vested in Her Majesty as well as
“the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled and by the authority of the same.”26 The crucial question is: When is the sovereign power vested in the one body and when in the other?
That there are rules that define what Parliament is, in my view, is a logical necessity. As Richard Latham put it in The Law and the Commonwealth:
When the purported sovereign is anyone but a single actual person, the designation of him
must contain the statement of rules for the ascertainment of his will, and these rules since
their observance is a condition of the validity of his legislation, are rules of law logically prior
to him.27
Elsewhere he put the point even more colorfully:
. . . the extraction of a precise expression of will from a multiplicity of human beings is . . . an
artificial process and one which cannot be accomplished without arbitrary rules. It is, therefore, an incomplete statement to say that in a state such and such an assembly is sovereign.
24
25
26
27
22
23
Bingham, see supra note 20, at p. 22, relying on H.L.A. Hart, The Concept of Law, Ch 5–6 (1st ed., 1961).
Ghaidan v. Godin-Mendoza (2004) U.K.HL. 30, at para. 57.
H.W.R. Wade & C. F. Forsyth, see supra at note 15.
To use the words of enactment in such circumstances.
To use the words of enactment in such circumstances.
Richard Latham, The Law and the Commonwealth (1949). This book is, in fact, a reprint in facsimile form of
an essay first published in W.K. Hancock, Survey of British Commonwealth Affairs Volume One Problems of
Nationality 1918–1936 (1937). For this reason the first page is 510. The passage cited is at 523.
140 I•CON 9 (2011), 132–143
It can only be sovereign when acting in a certain way prescribed by law . . . the simultaneous
incoherent cry of the rabble, small or large, cannot be law for it is unintelligible.28
The Latham rule for the Westminster Parliament was for long so obvious that it was
little noticed. It was set out with clarity in 1606 in Prince’s Case:29
An Act of Parliament penned by the assent of the King, and of the Lords Spiritual and Temporal, and of the Commons, is a good Act. But an Act penned by the King with the assent of the
Lords, or that of the King with the assent of the Commons is no Act of Parliament.
This simple rule could survive the Parliament Acts if legislation produced under
the authority of the same was seen as a special species of delegated legislation. Now
that Jackson makes it plain that such pieces of legislation are not delegated but acts of
a sovereign Parliament, a more complex definition of Parliament becomes inevitable.
Once the necessity of defining Parliament is recognized,30 we have, potentially, a
persuasive ground for finding that the restriction on extending the life of Parliament
is effective. Parliament for all purposes, including extending the life of Parliament, is
a bicameral body (consisting of the Commons and the Lords); however, it may also
legislate unicamerally (by the Commons alone), where the preconditions of section 2
(that is, rejection of a measure by the Lords a sufficient number of times) are fulfilled
for all purposes, except extending the life of Parliament.31 Thus unicameral legislation
extending the life of Parliament will be in breach of the Latham rule, and so not an
expression of Parliament’s will, and so void.32 And Lord Voldemort will be defeated.
(1939) King’s Counsel 152 cited at length in R. F. V. Heuston, Essays in Constitutional Law (1961, p 8).
(1606) 8 Coke Rep 48; 77 ER 481. The passage cited is at 496 of the ER.
30
Lord Hope is less persuaded by the importance of defining Parliament, see R. v. Jackson (Attorney General) [2005] U.K.HL. 56, [2006] 1 A.C. 262, at 306, para. 113 (“Nor does it seem to me to be helpful,
against this background, to describe the 1911 Act as having remodelled or redefined Parliament”). Lord
Steyn and Baroness Hale, on the contrary, are more sympathetic to the view that defining Parliament is
significant, see id. at 295–296, para. 80–81 (Lord Steyn) and at 318, para. 160 (Baroness Hale).
31
Kay LJ at first instance in R. (Jackson) v. Attorney General) (2005) E.W.H.C. 94 (Q.B.D.), at para. 26 wisely
remarked: “In my judgment, the correct way to describe the 1911 Act is as a statute which redefined or remodelled the legislature in such a way that there were thenceforth two routes through which Acts of Parliament could be enacted—the traditional way involving the Sovereign, the House of Commons and the House
of Lords and the 1911 Act way emanating from the Sovereign and the House of Commons, provided that the
conditions imposed by the 1911 Act are met. I accept that that proviso—the existence of statutory conditions
compliance with which can be investigated and secured by judicial process—points to a difference between
the 1911 Act and its progeny on the one hand and the general run of Acts of Parliament on the other hand.”
32
There are other occasions on which the redefinition of the U.K.’s Parliament may be relevant. A recent
example is the Fixed Term of Parliament Bill 2010, which provides for five-year fixed terms of Parliament
but allows for the early calling of general elections (and the prior dissolution of Parliament) inter alia if
the House of Commons passes by a two-thirds majority a motion (and the Speaker so certifies) that there
should be an early general election (clause 2(1)). If enacted as proposed (the measure is not yet an Act as
at the 18th April 2011), this would create the possibility that a government able to command a majority
(but not a two-thirds majority) might by ordinary legislation repeal the relevant parts of the Fixed Term
of Parliament Bill 2010. This, in turn, would pose the question whether that bill as enacted redefined
Parliament for the purpose of calling an early general election so that a two-thirds majority was required
to express Parliament’s will validly. Or does the bill leave Parliament defined as it was, with the result the
requirement of a two-thirds majority does not significantly hinder a government with a secure majority?
28
29
Can the life of Parliament be extended under the Parliament Acts 1911 and 1949? 141
The Latham rule for the U.K. defines Parliament, in part, by the subject matter of
the proposed legislation: whether it is to extend the life of Parliament or not. In this
regard, it bears some similarity to the Latham rule for the Parliament of the Union of
South Africa under consideration in the famous case of Harris v. Minister of the Interior
(The Vote Case).33 In Harris, any disqualification from the voters roll “by reason of the
[voter’s] race or colour only” was required to be “passed by both Houses of Parliament
sitting together, and at the third reading be agreed to by not less than two-thirds of the
total number of members of both Houses” (South Africa Act 1909, § 35[1)][and see
§152]). On other subject matters, a rule similar to that in Prince’s Case applied.
Chief Justice Centlivres, speaking for a unanimous Appellate Division, adopted the
Latham analysis and reasoned that “one is doing no violence to language when one
regards the word ‘Parliament’ as meaning Parliament sitting either bicamerally or
unicamerally in accordance with the provisions of the South Africa Act 1909.” Thus,
the Separate Representation of Voters Act 1951 (which sought to remove people from
the voters’ roll by reason of their color but had not been “passed by both Houses of
Parliament sitting together, and at the third reading [had not been] agreed to by not
less than two-thirds of the total number of members of both Houses”) was not an expression of Parliament’s will.
Although the court in Harris did not specifically state that Parliament, as defined
by the South Africa Act 1909, was sovereign, it is clear that the great theoretical importance of the judgment was its reconciliation of the sovereignty of the South Africa
Parliament with the efficacy of the “entrenched clauses” protecting the nonracial franchise.34 In Beinart’s telling phrase the rules laid down in the South Africa Act 1909
“defined the sovereign, not sovereignty”35
Should the occasion arise in the U.K., it seems that the courts could with equal
justice say “one is doing no violence to language when one regards the word ‘Parliament’ as meaning Parliament sitting either bicamerally or unicamerally in accordance with the provisions of the Parliament Act 1911 (as amended in 1949).” Thus,
unicameral legislation extending the life of Parliament would not be a valid expression
of Parliament’s will, for on such a matter Parliament means the bicameral body. The
clear definition of what “Parliament” means, in particular circumstances, provides
the means whereby Parliamentary sovereignty is preserved—there is nothing on
which Parliament cannot legislate, yet constitutional guarantees (such as the prohibition upon extending the life of Parliament) remain effective.
1952(2) SA 429(A).
This paragraph is drawn from: C. F. Forsyth, In Danger for Their Talents: A Study of the Appellate Division
of the Supreme Court of South Africa 1950–1980, 65–67 (1985).
35
B. Beinart, Parliament and the Courts, Butterworths SA Law Rev. 134, 136–37 (1954). Of course, in the
formal legal reasoning of the Vote Case can be seen the seeds of the court’s eventual submission to the
government’s plans to remove persons of color from the voters’ roll. Thus, it was clear from the judgment that there was no properly enacted act of Parliament that the courts would not meekly enforce. The
objections to the Separate Representation of Voters Act 1951 did not lie in its content but were merely
formal. Once the government gained control of the composition of Parliament there would be no further
frustration of its plans.
33
34
142 I•CON 9 (2011), 132–143
This formulation goes further than Ivor Jennings’s famous “manner and form” conception.36 Jennings argued for a modified formulation of Parliamentary sovereignty,
in which “the ‘legal sovereign’ may impose legal limitations upon itself, because its
power to change the law includes the power to change the law affecting itself.”37 The
difference between my formulation and Jennings’s conception is that the latter envisages
Parliament as having to observe the procedural manner and form by which legislation is created before it can repeal such legislation, whereas I see the restriction created by section 2(1) of the Parliament Act as incorporated into the very definition of
Parliament itself. In this respect, I go beyond the procedural manner-and-form conception; the limitation is defined by subject matter (legislation extending the life of
Parliament), which is, in turn, dependent on the composition of Parliament (whether
it is unicameral or bicameral).
6. Conclusion
Parliamentary supremacy is a concept that has increasingly required rethinking, particularly in light of influences such as the Human Rights Act 1998 and EU law.38 Although there is a range of views about whether it should be abandoned or reformed,
undeniably the sovereignty of Parliament remains a key principle of the U.K.’s
constitution.
It is noteworthy that in Jackson the challenge to the Hunting Act 2004 was dealt
with formally and in a wholly orthodox manner.39 All courts that heard the Jackson
case seemed concerned only to find the true intent of Parliament and to give effect
to it, whatever it might be. Notwithstanding the obiter dicta (dealt with above)
Ivor Jennings, The Law and the Constitution (5th ed., 1958).
Id. at 145. So, for example, Parliament may pass an act that provides that no bill can be passed to repeal
the legislation unless approved by a two-thirds majority of the members of both Houses of Parliament
and such a procedural restriction would be valid. For a recent contribution to the Wade-Jennings debate
on different conceptions of Parliamentary sovereignty, see Michael Gordon, The Conceptual Foundations
of Parliamentary Sovereignty: Reconsidering Jennings and Wade, Pub. L. 519 (2009). For an examination
of the impact of Jackson on the “manner and form” argument, see A. W. Bradley & K. D. Ewing, Constitutional and Administrative Law 68–70 (14th ed., 2007). Lord Steyn in Jackson gave the strongest support
for the “manner and form” formulation: [2006] 1 A.C. 262 at 296, para. 81 (“But, apart from the traditional methods of law making, Parliament acting as ordinarily constituted may functionally redistribute legislative power in different ways. For example, Parliament could for specific purposes provide for a
two-thirds majority in the House of Commons and the House of Lords. This would involve a redefinition
of Parliament for a specific purpose. Such a redefinition could not be disregarded.”) Baroness Hale similarly indicated support for this position at 319, para. 163 (“If the sovereign Parliament can redefine itself
downwards, to remove or modify the consent of the Upper House, it may very well be that it can also
redefine itself upwards, to require a particular parliamentary majority or a popular referendum for particular types of measure”).
38
Nothing has been said here about the influence of EU law on the debate over Parliamentary sovereignty.
This is an important issue, for in appropriate circumstances EU law will prevail over parliamentary legislation. For discussion, see H.W.R. Wade & C. F. Forsyth, Administrative Law 23–24 (10th ed., 2009). This
is a subject for discussion on another occasion.
39
For discussion, see C. F. Forsyth, Showing the Fly the Way out of the Flybottle: The Value of Formalism and
Conceptual Reasoning in Administrative Law 325 Cambridge L.J. (2007).
36
37
Can the life of Parliament be extended under the Parliament Acts 1911 and 1949? 143
favoring a power to strike down acts of Parliament in extreme circumstances, the
actual reasoning in the judgments eschews all such substantive arguments about the
merits of supremacy.
This is the context in which the difference of views between their lordships emerged
regarding whether Parliament could extend its own life unicamerally. Was the guarantee of regular elections worthless in the face of a determined House of Commons
reluctant to face the electorate? There was deep reluctance to see this guarantee
deprived of value but little, beyond assertion and denial, that would justify the courts
denying a two-stage removal of the guarantee from section 2(1).
The redefinition of Parliament, as proposed above, offers some protection. It allows
a restriction to be placed on extending the life of Parliament without limiting the concept of supremacy by incorporating that restriction into the definition of Parliament
itself. In doing so, it provides a workable definition of Parliament that would safeguard
against political abuse while maintaining Parliament’s continuing sovereignty.
Although the incorporation of section 2(1) of the Parliament Act 1911 (as amended
by the Parliament Act 1949) into the definition of Parliament provides a bulwark
against a powerful House of Commons tempted to extend the life of Parliament, it can
only do so within certain limitations. A sufficiently determined elected House, coupled with an executive willing to influence the composition of the House of Lords by
the creation of peers (so creating a bicameral Parliament willing to extend the life of
Parliament), would in the end get its way.40 If the government that Lord Voldemort
advises had a sufficiently secure Commons majority, it would in the end be able to
extend the life of Parliament. The form of the Latham rule may be preserved; the substance of the constitutional guarantee would be removed.
This somber conclusion serves to underline the uneasy relationship between principle and politics; thus, clarification as to the definition of Parliament gives us important insights into the principle of supremacy, although, ultimately, safeguarding
such principles lies with the U.K.’s democratically elected representatives of the people. This serves as a reminder that, in the final analysis, successful constitutional government in the U.K., as elsewhere, is a matter of the ready acceptance by all branches
of government of widely agreed-upon ground rules. This, too, is a matter for discussion on another occasion.
In South Africa, it was by packing the second house of Parliament (the Senate) with government supporters that the government eventually secured a two-thirds majority of both houses sitting together in order
to remove colored people from the voters roll. See C. F. Forsyth, In Danger for Their Talents: A Study of the
Appellate Division of the Supreme Court of South Africa 1950–1980, 72–74 (1985).
40