WHEARE

The word cosntitution is used in two senses1. broad- to refer to the system of govt in a country- thus defined as a collection

of rules that govern the government.1- Britain maily2. narrow- a collection of legal rules that are compiled in one docment or a few

closely related docs- morfe common, govern the government

the broader sense is older. Wheare uses narrower.

The narrower version of the consti does not exclude other law. It lays down basic principles and is often supplemented by legislation.

Organic Law- imp branches of constitutional law such as those dealing with composition etc in some countries aren’t embodied in the constitution. Alternatively, they are dealt with ONLY as general principles( it shall be there). there are supplementary laws for their mode of functioning, powers etc. thus there is a division of power.

No constitution can be understood fully until its relation with organic laws is understood. In addition, it must be understood in context of other constitutional rules like conventions, court holdings, customs etc.

A true constitutional government can be said to exist when the government is carried on within the limits prescribed by the consti.

Given that the consti is only a part of the country’s system of govt, is it really important that it exist? The fact that there is a consti does seem to make a diff. how?- more difficult to amend, if other legislation conflicts with it, In some countries, it is struck down

Does a consti exist in countries where parliamentary power is supreme? Does it matter that consti can be amended like any other legislation? (new Zealand and UK) doesn’t really answer the question, asks other questions- why is it that countries have constitutions, and why do they consider consti superior to ordinary law.

Why countries have constis- Modern constitions were drawn up because the people wished to make a fresh start as far as system of govt was concerned. They wanted to put down the outline of their new system of govt. another reason is that when new countries are drawn into an existing union, they may wish to reserve certain powers for themselves.

Why do the consider consti superior to ordinary law- short ans- constitution is viewed as a check on the govt, belief is in limited govt. difference comes in te extent of the limitation.

Extent of limitation may depend on the intention of the framers as to what they want they wish to safeguard1 Rules could be legal and non-legal. Non legal rules include conventions, customs etc.

1. to ensure that it is not taken lightly, and amended only by due procedure and consciously at that. Hence, procedural requirements.

2. they may wish to ensure that a certain structure that is maintained, certain righst of people that are ensured, certain laws should nto be made at all.

There are constis that do not impose these kinds of limitations- explanation- as in new Zealand- there is no legal requirement, any changes made will be made with the assent of the people.

How constitutions may be classifiedDefinition adopted by Wheare implies that virtually all constitutions are writtenBritain has no written constitution, not an unwritten consti.

WRITTEN V. UNWRITTEN

distinction in mind was between written rules regulating government, and unwritten rules like customs and conventions. Extended this to distinguish between written and unwritten constis.But, some rules are unwritten and some conventions have been put down in writing.

Even if we ignore the above, it is difficult to find any consti that has a system of govt embodied solely in written rules or solely in unwritten rules.

A better classification is between written and non-written consist, or as per wheare’s definition, between those that have a consti and those that don’t.

FLEXIBLE V. RIGIDThis is distinction on the basis of ease of procedure of amendment of constitutionFlexible = directly by legislature easily eg new jjheelandRigid = is by set special procedure eg baaki duniya

Advtg- it can be used to indicate diff in degree fr eg sum consti’s are mre rigid than othersDisadvtg.- terminology is misunderstood, leads us to think a rigid consti is mre diff to amend than a flexible one Secondly, this classification does not tell us much since it places few constis in the flexible category and the rest in the rigid thus a large dis[arity in the sizes of the grp which is not helpful in the study.

May be more useful to distinguish contis along the lines of flexible and rigid with reference to how often and how easily they are altered.

SUPREMACY OVER LEGISLATUREWhether or not they can be amended by legislature or not. This would be a sub-classification within the original conception of a rigid consti.

But it is often difficult to establish whether the consti is supreme or not. Belgium- when amendment is proposed, houses are dissolved, and then re-elections are held. Therefore, supremacy of legislature because legislation is directly amending consti.

electorate supremacy over consti and not legislature because in the end, ppl directly approve or disapprove of the change. Countries that allow amendments to be made but with a special majority- it can be said that the legislature is supreme cos it by itself makes maend without consultin other bodies however in this it follows consti procedure n hence consti is supreme to that extent. However this degree of control does not amount to much.

FEDERAL V. UNITARY CONSTITUTIONSfederal- consti may provide for a system of govt where govt at centre has certain limited powers, and so does govt at state. Neither is superior, they work together. State legally independent, so is centre. Rarest;Unitary consti- govt at the centre has all the law making power, govt at state levels are subordinate. More predominant

Third category- quasi federal – Canada and India- concurrent list. 2nd in terms of predominance- west germany and USSR as well

Further, there is disparity between consti provisions and the actual practice. Eg- Australian consti is federal in law but acts as a unitary consti employing a considerable amount of decentralisation. Canada, though quasi-fed in law seems more federal in functioning.

Limitation- since most are unitary, the distinction doesn’t seem to be of much value. Further, though they might be unitary- great deal of diversity in method and degree of decentralisation etc therefore we need more info to understand what the consti is actually like.saying its unitary is nto saying much.

Also need to see what happens in practice

Presumption- necessary condition for all federal states- supremacy of consti over legislatures and rigidity of consti in terms of amendment. Also unitary consti will presumably not be supreme or rigid.This is not necessary. Today, most unitary consti have opted to supreme and rigid and in this respect don’t differ from federal states.

Confederation- where the states are more powerful than union. Consti is called confederate constitution. Confusion- swiss and Canadian constis call themselves confederate consit.Acc to wheare the term is used as a form of association between states whereby they create a central bod over which they all have equal stake. The central body has little or no control over them and can therefore not be called govt or consti.

Eg- league of nations and UNO because they crete governing rules for members but not a govt.

Basis for distinction between fed, unitary and confederate is the principle by which the powers of the govt are distributed.

EXTENT OF SEPARATION OF POWERS

An alternate form of disctinction based on distribtution of power is the doctrine of separation of powers. This classifies constis into those that embody that doctrine to a greater extent, and those that do this to a lesser extent.(i.e. parliamentary executive v. presidential executive. Parliamentary executive- ministers form part of the executive. Presidential- no member of executive ie president and his cohorts can sit in congress)

Separation of powers has never existed in its pure form ie. With no overlap whatsoeverUS- there might be separation of the three institutions but not necessarily of the functions.

REPUBLICAN V. MONARCHICAL

This distinction has little significance now. Means only that where head of state is pres- it is republic and where head of state is king/queen- it is a monarchyAgain, too many differences- often a monarchy is very similar to a republic in terms of functioning.Monarchies have started looking like republics whereas republics range from democracies to autocracies.

Is it worthwhile to attempt a classification? Yes, it tells us something about the nature of governance if enough tags are used. No because consti does not form whole govt, and governance often differs in practise and on paper. What a constitution should contain

1. only legal rules2. act as a statement of ideals

according to john marshall and wheare- the consti should contain the very minimum and that minimum to be rules of law. Also be as short as possible

a state that adopts unitary form of govt might find it easier to frame a consti than a federal state in the sense that certain problems typical to fed state may not arise. Federal state needs to provide for division of powers. From the experience with Canada in particular, it seems wise to have one list of subjects to be legislated on instead of two or three in a federal govt. Whether this list is for central or state govt can be decided. + point- no danger of overlap due to ambiguity in words, leaves room for future developments in case the list is specified for state legislatures, practical problem – they may not be willing to give centre that much power

dunitary state will have its own problems of providing rights to the people etc. these might also be faced by fed states.as regards rights- they are essential so consti is accepted by the people. Yet these rights cannot be absolute if govt is to be effective. They always include qualifications

most constis therefore give people rights and say they may be restricted only in accordance with the law- thus executive is not given unrestricted power. However, the extent to which rights can be guaranteed and preserved given provisions like this depends on the restraint of the legislature.

Given the vague language of these rights, judges have a great deal of responsisbility in interpreting the provisions. Rights, if given, should be laid down in clear and precise terms to avoid confusion and save work.There seems to be no point in introducing generalities (as rights) in the consit since they will cause conflicts between e, j and l over interpretation but must be taken serious ly alongside by the people or will bring discredit to the consti. Solu- clear and precise lang

Most countries do not enjoy respect for the consti and SC, a system where SC interprets consti as opposed to legis and an informed public opinion. For these reasons, the ideal consti would contain few or no declaration of rights, rather rights would be provided by ordinary law (how is this better?) formulated by the legislature and thus reflecting public opinion.

If a consti only consists of legal rules- becomes too austere. Preamble, which is not part of the consti and therefore not part of the law, is therefore desirable.

A consti is however, ultimately a legal doc. It should restrict itself to stating rules of law and not opinions, aspirations, directives and policies. Language may be wide and general in some matters, but must be devoid of emotion, ambiguity and not be tendentious. If the legislation is to bind e and j equally, and is to be supreme, the rules should be few, fundamental and general. Some ppl will disagree and sya it is more importantly a political manifesto and thus evokes the obedience, affection and respect of ppl like no exclusive statement of rules could

What authority a consti can claim- legal and moral questionTo be recognised as part of the law, consti should have been framed/ approved by a body competent to make law. Who gives a body authority to frame a consti? Is a body competent to make law before consti comes into being? It is necessary to have such a body.Example of IrelandConsti of India claims its authority is derived from the people- “we, the people..”Most modern consti derive authority from people, or a constituent assembly acting on their behalf. Other bodies claim legal authority because they have been created by existing legal authorities in parent countries, like the UK (consti enacted by the british parl. This enactment not only gives force of law to a consti, but also such force is greater than that held by ordinary, local legislature)

How can we say that consti law is superior to othe law?1. because it is meant to be s. purpose of consti is that it limit the powers of the

govt etc2. consti is the product of the efforts of a body that has the authority to make a

supreme law (eg of Australia)

moral basis

1. it can command the authority that all law commands in a country- the theory of morals that are invoked to determine and defin obedience to the law will also apply to consti

2. it can also command obedience because it is the superior, fundamental, orerequisite law of the land, cannot be disobeyed with the same ease as the Dog Act because disorder and chaos will surely follow

3. because it expresses the will of the people (supp to pt. 2) the people can amend it.

But a minority, permanenet minority at that, can never amend the consti. So should it be forced to live by it? No, sometimes its morally right to rebel. Extent of rebeliion is debatable.This can happen to a majority as well, if the minority is powerfully placed

Can a govt reject a part of the consti to save the rest? Yes, govt is morally entitled to ignore a part of it to enforce/save the rest. Consti have expendable parts, and not all parts are “good” either

4. a govt can claim authority if it is line with natural law, rights of man under natural law, and proper extent of power under natural law. Consti exists to ensure rights to people, all its actions must be directed towards that end. If they are not, validity and can be challenged. This is a moral basis to judge cosnti by and a basis to test validity of the consti

unalterable constis can be rebelled against- disobedience can be justified; minority rights, majority rights in case consti can be altered

ON CONSTITUTIONSwhat are consti’s for?

1. creation of the institutions of the state2. regulate the relations among the institutions3. regulate relations between the institutions and the people they govern,

the consti may not provide for creation of all instutions like e, j, l, defense, head of state etc but will definitely provide for creation of some.

Consti will have to provide for “who will have the last say” on any issue. Eg- abortion. How they do this- variety of ways- separation of powers doctrine, sovergeinty of parliament (UK), last word of the courts (US), rule of law etc

All constis will also have something to say about citizenship, rights of people, how they elect legislature etc

Apart from these functions, the consit embodies the values a state holdsConstitutions have functions, but they also have goals. An idea of what is in the public good. Law (public law in particular) is thus highly political in nature since it reflects the politics that make it.

A constitution is something that the ppl have agreed to be governed by. Ppl feel like they are a part of it, they get to vote for a govt which in return promises ceratin things.

Effectively no one man has his say, but in principle the provision exists. There is an idea that the consti is somehow ours, we can alter it and have a part to play in what it says.

More imp than the distinction between written and unwritten consti is the distinction between political and legal constitutions.

The term written consti actually means codified consti, one wehre all principal constitutional rules are written down in a single doc. However, these constis are not complete codes cpapable of answering all constitutional questions. They need to be supplemented with uncodified rules. Thus all constis are to some extent uncodified/ written The disctinction between written and unwritten consist is of form, not of substance. The unwritten form of the consti does not necessarily translate into parliamentary supremacy for example.

Secondly, unwritten form doesn’t mean it is flexible.

The constitution is not based entirely on legal rules. Conventions and political philosophy are also involved. This is the difference between consti law and other branches of law- ie other branches have legal sources only. Non-legal sources of consti law include conventions- ie. A non-legal but binding rule of consti behaviour. Non-legal = not enforceable by court.

Conventions followed because of their own weight, and because of fear of political repercussions

Eg of convention- ministers in parliament are individually and collectively responsible to the PM. No legal enforcement, but there is political enforcement.Rule regarding appointment of PM by the queen

Conventions are quite powerful, we encounter them in daily life as well.

One of the reasons people assert that unwritten constitutions must be flexible is because it is assumed that they rely on constitutional conventions to a greater extent than written consist do. Since conventions are mere political practices as opposed to legal rules and are hence more flexible, it is said, unwritten constis are more flexible.

But is the assumption that the extent to which a consti relies on conventions in dependant on wehter it is written or not warranted? NoIs the assumption that political rules (conventions) are more flexible than legal rules?

How do rules become conventions? Three pronged test- 1. unbroken observance = greater likelihood of rule being convention 2. do political actors feel bound by the rule? 3. does the rule deal with what the consti deals with, is there a reason for the rule? [suggested by Jennings?]

These three requirements suggest that there is not much room for flexibility at all. Definition itself is inflexible- convention is apractice that enjoys a long history of unbroken observance in respect of which there is a strong sense of oblig and which forms an integral part of the consti order.

Conventions = tradition = force of conservatism

Thus a consti is not flexible because it relies on convetions or because it is unwritten.

Other way in which consti may be classified based on flexibility and rigidity - changes have been made, must be flexible. But these changes were made over a great deal of time and with great difficulty. No, there is a continuity in the form of gvt as provided by the consti in England- also superficial since there have been major changes.

Flexibility or lack of it can be understood by looking at the following-

Indeterminate nature (un/clear rules), indistinct (consti law as distinguished from other areas of law), unentrenched (nothing in it cannot be changed- true or false)

Writing existing rules down does not make them less indeterminate, similarly a written consti is not necessarily entrenchedNature of consti could be made more distinct if it were all codified

Public law not only establishes institutions that exercise political power but also seeks to hold them to account. This holding to account can be done politically, or legally

Political constitution- those who exercise political power are held to accont through political means and institutions like the parliamentLegal constitution- means and institutions are the court rooms and the law-sue govt in court or initiate a form of judicial reviewWhich is better? Analyse based on effectiveness and the values they represent- which is more democratic, open and accessible.

effectivenessPolitical accountability makes sense since govts are always being criticised and are concerned with re-electionLegal- does not make sense because not all ppl have access to the law, suing a minister will not achieve too much. Diffcult to follow up and see that the judgment is being complied with in the manner conceived- example of discrimination against women in the work place. Law (legal means and insti) lacks community follow up of pol. Ths legal means and insti are not necessarily better

ValuesPpolitica- what is essential is rigour of political process, its transparency, openness, representative nature, deliberative nature. But it is rare for a pol system to live up to these, they are diffcult to put into practice.

Secondly, minorities may be subjugated in pol system. Atleast in legal system there is equality in the sense that suing costs the same no matter whether the plaintiff is part of majority or minority. On the other hand, judges are not elected or representative of the whole population- tend to be white, old, upper middle class in England

DICEY

Gradual shift from parl to legal system in England- reason- pol consti seen as having broken down. Ministers rarely held to ac by parl, parl is unable to do its consti job since the executive has grown too strong and the domination of pol party has undermined independence from govt that existed earlier.

FIREBRIGADE CASEdo we want to replace parl consti with legal one? What consti does India have?

BRADLEY AND EWINGHow is individual freedom to be reconciled with claims of social justice? – fundamental ques of consti lawGiven the weaknesses of law (as it is framed by imperfect humans) and more importantlyt he lacunae in its implementation- is it better to have no law at all? These weaknesses are actually the reason for law

Customary rules and practices that supplement the law may often be more easily changed than the consti itself and their evolution wll reduce the need for formal amendment of the consti

Tom paine- consti is antecedent to the govt, govt is creation of consti, consti is not act of govt, but of ppl constituting a govt. govt w/o consit = power without a right

The british consti is not as unwritten as it was in the pastFor estb a federal govt, written consti would be necessaryWritten constis contain FRs, in case of unwritten constis, it is widely considered impossible or atleast very diff for the courts to enforce FRs against legislation by the parlFurther, while written consist prescribe special procedures to amend laws of consti imp, (thus intro an element of rigidity) this is not the case with unwritten constiUnwritten consti have no prescribed limitation of this sort, and hence are in form, mor flexible. However, referendums are employed in UK, as a substitute perhaps, to the procedural limitation

Absence of a writte consti affects the sources of consti law- there is no doc to go to, instead decisions, conventions are referred. These are not always based on legal rules but instead on ppolitical and democratic principles.

A function excercsed by a written consti is to control the organs of govt. there is a need for the same however, in unwritten constis as well, and in the form of a free pol system in which parl srcutinises and discusses official decisions

Definition of consti law depends on the system of govt- pol or legal. If legal then “part of national law that governs the yss of public admin and rel between idni and state”.For uk, this is not enough because a lot of consti law and non-legal.

Also depends on whether there is a demarcation between consti and other branches of law. No such demarcation in England

Consti law v. admin law- consti law gives structure to organs of admin wheras admin law prescribes how they shall function and deal with citizens- deals with org, powers and duties of admin authoritiesBoth deal with exercise and control of govt power- no precise demarcation in Britain

Public int law regulates rel of states with one another (external rel of state), consti law regulates internal rel of state with its pplBoth regulate the power that states wield. Consti law includes national law that regulates states power to enter into international treaties and so onTherefore now necessary to reconsider the nature of international sovereignty which the national sys of consti law ascribes to the state

MUNROConventions are responsible for the effective transfer of executive power from the queen to the cabinet ministers. There are no legal rules to the effect. The office of the PM is a product of convention. Since Walpole, practise that PM is from either house of commons (usually the person who commands a majority in the house of commons- if there is such a person, the soverreing then has barely any say) or lords thus making the exec responsible to the parl and indirectly therefore, the people. Responsibility of ministers regarding the performance of their departments. Expectation that they will resign in case of misconduct or failure.

Conventions play a role therefore in regulating executive-govt, legislature-executive relations, rels between houses of parl, working of each house, in civil service, local govt, judicial admin and judicial beh.

Breach of constitutional convention = unconstitutional beh (obv)

Read last para pg 58 first two line 59 and THINK ABOUT THEM

Constiu lawyers stress on the diff in distinguishing between law and convention, but it is easy enough to do it in crim law for eg (to understand crim beh), author doesn’t see why it should be difficult in this case.

Even dicey said studying conventions to some degree was essential for a layer to master the legal side of the consti. But he did say conventions were non of the lawyer’s concer.

Are laws and conventions different in kind?Ivor Jennings said in substance they are the same- both rest upon general agreement, major conventions as firmly fixed and can be stated with almost as much accuracy as principles of common law.

Author says there are very few conventions that are firmly fixed etc. cannot say that they cannot be distinguished. Further, these similarities are to be expected because both are rules governing behaviour, and in the same society.This does not mean there is no material difference just because both types of laws are important etc.Dicey provided a simple test to disntuish them- enforceable in courts or not. Does court regard rules as a part of law or not? (susceptibility to enforcement would be more correct- can they be taken to court?)But are all laws enforced in courts, and are all conventions incapable of being enforced in courts?

Even if there are laws that go to tribunals instead of courts, the option of courts remains open. Parliamentary rules become ordinary law in courts read pg 64. there might be cases where the law excludes the jurisdiction fo the courts, and the court interprets the law to say it has no jurisdiction over the matter. Here too, the law has been taken to court, if only to be sent elsewhere because of the prov it makes itself- pg 65, and left col- 66

Courts have refused to enforce conventions on the rare occasions that they have been asked to do so- thus courts will not provide redress simply because of a breach of conventional rule, if there is a legal rule involved they will tackle that aspect of the problem

Dicey’s test can be defended though there are minor problems with the terminology used and some cases that don’t fit in exactly with the distinction he has drawn. There are better methods to distinguish the two however.

Pg 69- 71 first para differences

Customs as a source of law differ from conventions as a source of law. Customs have historically been incorporated into law (common law includes a section of law that is customary in origin), but conventions have to be turned into law through a legislative process, cannot become law thru judicial recognition. The role of customs as a source of law is historic, all customs have become a part of statue or common law.

Courts don’t treat conventions as inferior law, they don’t treat them as law at all

On occasion, the violation of a convention can lead to an amendment of existing law, thus strenghting it. Should all conventions transformed into legislation? Certainity at the cost of flexibility- will become more certain and judiciary will be able to implement them, but they serve as a means of updating the consti on a regular basis, that will be lost out on. Further, man yconventions operate in the political area wehre judicial interference may not be desirable

Case for legislating is strong when we want to make sure these rules are enforceable and when there is a danger of disobedience.

What is a convention? Is it diff from mere practice, usage, fact etc?

Jennings test- crisitcim- who decides whether or not there is a good consti reason? Is precedent actually necessary, cant there be an agreement or announcemtn of a new convention?Wheare says usage- a rule, no more than a description of what is actually followed

Efforts have been made to classify non-legal rules further- no real benefit Conventions are very difficult to classify, or even to put down in text with a good degree of accuracy. Wide differences in the degree to which they are followed. Cant therefore, set standards for following them 81-87

NOORANIconventions were rejected until a SC judgment in 1971 recognised their importance- indira eg- readIndian consti makers deliberated on the question of including consti conventions as written provisions intheindian constibut decided against it. Decieded to rely on the honesty of india’s leaders and their grounding in traditional parliamentary beh. Supreme court in the case gave effect to their intention of preserving aspects of democratic functioning by enforcing conventions of parliamentary govt (basically that power shud be exercised by representatives of the people and not the pres)

Our consti makers did intend to codify the conventions, (codification was considered possible and desirable) especillay those related to the president and governors. Did not materialise, arg was that codification was not necessary. Apparently, this has allowed governors to freely act as per the centre’s directions, and has given us fickle presidents.

Arguments in favour of codification- 1. educational- ppl must be aware of how they are being governed2. prevention of ambiguity uncertainity, make sure powers are not misused, no

political partiality

author believes there is a need for codification. Uses jenning’s quote to support his view that conventions can be made justiciable.

Republic advisory committee was trying to decide whether codification of Australian conventions was necessary or not. Discussed reserved powers of the head of stae in parliamentary sys regarding appointment and dismissal of PM, and dissolution of lower house of parliament. There was a view that codification would be benefitial

Pg 60 read marked parts. Read art 123 and 213- power promulgate ordinances. Read the underlined bits of the art. Basically saying president’s approval for ordinance is not necessarily a bad thing, may even be a good thing. Further, pres is not technically allowed to get away with signing anything since there is a provision for the law to be reviewed and voted upon later. However, courts seem hesitant to look at validity of ordinances when they have be re-enacted as acts. This is a significant defect.

IMPLIED LIMITATIONS ON LEGISLATIVE POWER: within the matrix of

Jackson v Attorney General – The Hunting Act 2004

- Anne Twomey

UK follows the principle of Parliamentary Supremacy/Sovereignty. All laws in UK

including the ones on fundamental rights have to conform to this directive. Also

English Courts are not allowed to adjudicate upon the validity of any law/amendment

passed by the British Parliament. The Parliamentary Acts of 1911 and 1949 are a part

of the British constitution and the main purpose with which they were passed was to

limit the power of the House of Lords to veto/suspend the actions (in terms of passing

of bills) of the Commons. The Hunting Act 2004 was passed to ban fox hunting using

dogs. This legislation was challenged by the pro – hunting activists as was the 1949

Act on the grounds that it subverted certain provisions of the 1911 Act and hence was

not valid.

This particular challenge got the importance it did because

The British Courts (appeal and Lords) viewed this matter as justiciable.

They read implied limitations from the 1911 Act into the power of the

legislature to make laws under the Act

Consequently they implied that the concept of Parliamentary Supremacy had

limitations.

There was a definite procedure by which any law could be passed by the British

Parliament. Initial procedure required that the bill be passed by both Commons and

Lords before it was sent to receive the Royal assent and that the whole procedure took

3 successive sessions and 2 years. The 1949 Act reduced this to 2 sessions and 1 year

and was sent for royal assent without any referral to the Lords. Now the Hunting Act

was challenged on the grounds that it was passed pursuant to the procedure in the

1949 Act and was hence invalid as the 1949 Act (which consisted of amendments to

the 1911 Act) itself was invalid.

The rule in Britain is that the courts do not have the jurisdiction to look into the

validity of an act of Parliament. However this does not extend to subordinate

legislation – that legislation passed in pursuance of the provisions of an Act. In such

cases the courts can look into whether there existed competence on the part of the

legislature to pass that particular law.

So a primary question in the Fox Hunting Case was whether the legislature could

review the validity of the legislation made pursuant to the 1911 Act.

The court conceded to justiciability saying it was a matter of statutory interpretation.

The appellants argued that the courts could review the Acts because they were

subordinate in nature to the 1911 Act. However this argument was rejected by the

Lords as the 1911 Act provided that any law/Act passed according to the procedure it

laid down would be an Act of Parliament and such an Act; felt the Lords would be

primary legislation. As this declaration effectively took away the power of judicial

review, the courts decided to extend their powers to allow them to look into primary

legislation and in doing so they modified the previous rule in Britain that all

Parliamentary legislations are supreme.

When the House of Lords rejected the view that the 1949 and Hunting Act were

subordinate legislations, they in effect undermined the principle of parliamentary

sovereignty and increased their own jurisdiction. Moreover they read implied

restraints into primary legislation.

Though both the Court of Appeals and House of Lords upheld the validity of the 1949

Act and the Hunting Act 2004, members of both courts took the view that some limits

must apply to the power of the House of Commons (with the assent of the Queen) to

enact laws that are ‘undemocratic’ or which remove the express limitations imposed

by the 1911 Act on the exercise of powers under that Act.

The 1911 Act makes no provisions for the passing of a bill that will extend the life of

the Commons without needing them to refer this bill to the Lords as well for their

consent. Also there is no express limitation in the Act to prevent the legislators from

using the process set out by the Act to amend the Act itself. So if you really think

about it, using the procedure established in the 1911 Act the House of Commons can

pass a law which can abolish the House of Lords and consequently can also pass a law

by which it can repeal the provision of “extension of life with consent of Lords”

criterion and extend its life without the consent of the Lords. When this particular fact

is taken into consideration it seems that there is no effective limitation on legislative

power, but the Appellate Court thought otherwise.

So in light of this the Court of Appeal had to examine if there was any other limitation

on the authority of the Commons to enact a law that would extend its life without

consent of the Lords, and if there was a similar limitation on its ability to enact a law

that would abolish the Lord. While the Court said that the intention of the 1911 Act

had never been the latter, if such a thing actually did occur then it would be within the

jurisdiction of the court to look into such an enactment. The question was how, then,

to determine what was the extent of the limitation on the powers of the House of

Commons under the 1911 Act to amend that Act.

The court tried to answer this question by differentiating between fundamental

constitutional changes which would require the whole parliament i.e. the Lords and

Commons and modest changes which could be brought about using the procedure as

set up by the Act of 1911.

A point in favour of the argument that the procedure could be used to amend the Act

itself was that there had been amendments moved during the drafting of the Act that

took away this power to amend the act itself but these proposed amendments had been

struck down, hence implying that the act could be amended by its own procedure.

However the counter argument to this is that the 1911 Act had given powers to the

Commons subject to certain restrictions, and the Commons could not use this very

power to sweep away the restriction that had been instituted on the use of this power.

The house of Lords rejected the distinction made by the Appellate Court saying that it

was unworkable in practice and having done so it tried to figure out if an implication

could be drawn which would constrain the use of the Parliament Acts procedure to

amend the 1911 Act itself, and if so, how such an implication might develop.

Various lords took different views on whether the procedure in the act could be used

to amend the Act itself. Lord Bingham was opinion that it could be used and that it

could be used even to repeal the provision that the term of the Commons could be

extended contingent on the consent of the Lords. But the contradiction lies in the fact

that he supported the idea that these amendments would be justiciable. If these

amendments were indeed Acts of Parliament, then they excluded review.

The judges mostly upheld that the act’s procedures could be used to amend itself but

added a caveat that the parliamentary supremacy that this decision implied was

subject to democratic legitimacy. The parliament could not use its supreme law

making powers which it justified on the grounds of democracy to destroy the very

democratic institutions that created it.

Lord Hope, although not quite as direct in his warning about the flagrant use of

legislative power, agreed that parliamentary sovereignty was no longer absolute in the

United Kingdom and that its Constitution was not ‘uncontrolled’.66 He accepted that

the rule of law, enforced by the courts ‘is the ultimate controlling factor on which our

constitution is based.’ He saw it as protecting the individual from arbitrary

government, and considered that the fact that the courts were prepared to hear this

appeal indicated that the ‘courts have a part to play in defining the limits of

Parliament’s legislative sovereignty.

Another method used to show the implied limitation in the 1911 Act was to go back to

the source of the Act, the intention the framers had when drafting the Act by using

Parliamentary Records.

The only important thing to note here is that there was a dissent on the use of such

material, and that those who used the materials to determine intent found that while

amendments had be proposed to exclude the act from getting amended by its own

procedure, all the amendments were rejected.

The judgments in Jackson v Attorney General were quite remarkable. The mere fact

that they were given at all and that the courts were prepared to hear a challenge to the

validity of the Hunting Act 2004 and the Parliament Act 1949 was noteworthy. Even

more so was the fact that the courts were prepared to impose implied limitations on

the legislative power of the Westminster Parliament, when acting under the

Parliament Act 1911. Finally, the warnings given by some judges that the courts,

ultimately, determine the scope of parliamentary supremacy, and that the use of the

Parliament Acts to impose ‘undemocratic’ measures might be rejected, were quite

unprecedented in the United Kingdom.

Issue: Non-deferential judicial review of constitutional amendment process.

The author doesn’t agree with the proposition that the legislation enjoys “sole and complete control over the amending process, subject to no judicial review”. However, the fact that the judiciary is allowed to police the outer boundaries of the amending process doesn’t necessarily answer the question of how the courts should g about the same, or whether the judiciary should set up its own comprehensive standards or leave it up to the legislation’s will.However, the author doesn’t agree to Professor Dellinger’s argument that complete judicial freedom and zilch role on part of the legislation to ratify amendments would reduce uncertainty in the amending process doubts that exclusive judicial control on amendments would make the whole process more certain without compromising on constitutional flexibility.He cites the danger as pointed out in the case of Goldwater v. Carter (444 U.S. 996 [1979]) that the Supreme Court oversees the very constitutional process used to reverse its own decisions. Professor Dellinger tries to rebut by arguing that there are only a few such provisions in the constitution designed to overturn the Supreme Court decisions and that most, if not all amendments are proposed to tackle problems with departments other than the judiciary. However, the author says that the very reason behind why a legislative body proposes an amendment is because of national dissatisfaction and when mere legal corrections are not enough. At this point the author says amendments in such cases are amendments to constitutional politics and not constitutional law. The author however says that even if the exclusive judicial control is not satisfactory, so isn’t the legislation’s plenary power over the jurisdiction of courts over the review of legislation. Thus, he comes down to the basic issue he addresses in the articles, whether the constitutional criteria to resolves conflicts should be crafted with deference to the legislature?The author highlights that judicial supervision not only arises in the amendment procedure but in the substance of the amendment as well. This comes form the understanding that the constitution is not a set of unconnected and discordant rules and regulations, but is in actuality a unified document which tries to adhere to the basic political ideals: federalism, separation of powers, representative republicanism etc. Thus, as long as it is amended, these amendments can’t ignore these fundamental norms. However, this situation is not free from scrutiny because this leads to disputes on whether the proposed amendment actually does break away from these fundamental norms. For example an amendment to ban abortion on one hand asserts fairness and sanctity of human life; it may violate individual autonomy, privacy and equality – All of these being constitutional norms, but who is to decide which supersedes the other still remains disputed. Thus, not only are the fundamental norms of the constitution open to debate, so is the objectivity with which they are deduced and applied. This problem arises because the constitution cannot possibly dictate its followers as to how to approach it and hence freeing them of the responsibility of choice.In addition to the substantive limitations on the amendment’s appropriateness, there maybe be structural limitations within the constitution itself. For example highly

specific amendments like banning handguns would seem absurd if places in the main text of the constitution, no matter how desired they may be.Not only such absurd amendments make them much harder to modify since they are brought about by the constitution rather then by statute, they tend to trivialise the constitution and belittle the educative and affirmative impact of the constitution in our political and legal structure.This is because a document would call for respect only if it deals with our fundamentals or core political values rather than some unimportant random clauses.Yet, even thought the author address the issue of amendments’ appropriateness, he thinks that this issue should not be dealt with by the courts because this would subjugate the amending process to the legal system, which in fact it is supposed to over-ride and violate our principles of equal power to all arms of the State.Thus, it should be the legislature, rather than the judiciary addressing the question of whether an amendment is appropriate because these questions are “political questions that a constitution addresses via its political branch, subject to a review in some cases”.A reason as to why the judiciary sometimes abstains from passing judgements on the legitimacy of the substance of amendments and prefers the questions raised on the procedures s because that allows them to control the substantive parts only indirectly and in part.However, whether substantive or procedural, the courts by commenting on amendments impinge upon the independence of the legislature but more importantly go through the highly uncomfortable and controversial question of passing a judgement on amendments that are proposed to correct flaws in its own functioning.However, this doesn’t justify legislative plenary powers either.Thus, to solve the problem of judicial reviews on amendment procedures where the subject of the amendment may be related to the judicial functioning itself, the courts should be deferential (in case you are wondering, deferential means respectful) to the procedural provisions the legislature recommends in the resolutions calling for amendments.This deference should be equal to deference towards the procedural provisions mentioned within the proposed amendment’s text (don’t confuse this with the resolution) which if approved by Special Majority etc. are then rendered to be approved anyway. This would prevent sly behaviour on part of the legislature to get the judiciary to accept the procedural aspects of an amendment.