Manner and form — the Jackson controversy

This note examines the doctrine of manner and form — the proposition that Parliament may bind its successors not as to substance but as to procedure — and the controversy unleashed by the House of Lords in R (Jackson) v Attorney General [2005] UKHL 56. Whereas Week 1 introduced Dicey's orthodox theory of unlimited legislative sovereignty and Week 2 explored Sir John Laws LJ's Thoburn theory of constitutional statutes and entrenchment, Week 3 turns to the question whether Parliament can impose procedural conditions on future enactments and whether legislation passed under the Parliament Act 1911 (as amended) is truly 'primary' or constitutes a species of delegated legislation subject to judicial review.

The central doctrinal questions are:

• Can Parliament validly prescribe the manner and form of future legislation on a given subject?
• What is the legal status of Acts passed under the Parliament Acts 1911 and 1949 — are they Acts of 'Parliament' or delegated instruments?
• Did the 1949 Act, which shortened the delaying period from two years to one year, unlawfully 'enlarge' the delegated power conferred by the 1911 Act?
• To what extent may courts review procedural compliance with the Parliament Acts, and does such review entail scrutiny of what happens 'on the floor of the House'?

You should master the competing scholarly camps: Dicey's continuing sovereignty, Jennings's manner-and-form theory, the New Zealand and Commonwealth jurisprudence (Attorney General for New South Wales v Trethowan, Harris v Minister of the Interior), and the contrasting dicta in Jackson from Lords Bingham, Steyn, Hope, and Lady Hale. By the end of this note, you will understand why Jackson is regarded as the most constitutionally significant case on sovereignty since the 17th century — not for its ratio (the 1949 Act was valid) but for its explosive obiter remarks.

Learning outcomes:

• Distinguish continuing from self-embracing sovereignty
• Apply manner-and-form theory to entrenchment problems
• Analyse the procedural-substantive dichotomy in parliamentary competence
• Evaluate the delegated-legislation challenge to the Parliament Acts
• Critically assess whether Jackson changed the law or merely revealed judicial attitudes

The Parliament Act 1911 was enacted following the constitutional crisis over the 'People's Budget' of 1909 and the refusal of the Conservative-dominated House of Lords to pass Finance Bills. The Liberal government threatened to create hundreds of new peers; the Lords capitulated. The 1911 Act removed the Lords' veto over Money Bills and substituted a two-year delaying power for other public Bills. Crucially, it did so by providing that a Bill may be presented for Royal Assent without Lords consent provided specified procedures are followed (assent of the Commons in two successive sessions, one year's delay, certification by the Speaker).

The preamble to the 1911 Act described it as a transitional measure, pending 'reform' of the second chamber. Section 2(1) provided that the delaying period was two years. In 1949, the Attlee Labour government — facing obstruction of its nationalisation programme — used the 1911 Act procedure itself to enact the Parliament Act 1949, which reduced the delaying period from two years to one. No Lords consent was obtained. The constitutional question was whether the 1911 Act could be used to amend itself: did the 1911 procedure confer a true law-making power or a subordinate, delegated competence that could not extend to amending its parent statute?

This question lay dormant for half a century. It was not tested in court until the Hunting Act 2004, which banned hunting wild mammals with dogs, was enacted under the 1949 procedure after the Lords repeatedly rejected it. The Countryside Alliance challenged both the 1949 Act and the Hunting Act in Jackson.

The theoretical stakes were high: if the 1949 Act were invalid, so too would be the War Crimes Act 1991 and the European Parliamentary Elections Act 1999, both passed under the 1949 procedure. More fundamentally, the case offered the first modern opportunity for the highest court to revisit the foundations of parliamentary sovereignty in a context where Parliament's very authority to legislate was questioned.

Historically, manner-and-form theory has roots in the Commonwealth: in Australia and New Zealand, courts accepted that legislatures created by statute (e.g. colonial legislatures) could be bound by procedural requirements. Trethowan (1932) and Harris (1952) are the canonical illustrations. Whether Westminster, which is not itself constituted by statute, can be similarly constrained remained an open question.

Continuing v self-embracing sovereignty

Continuing sovereignty (Dicey): Parliament cannot bind its successors as to either substance or procedure. Each Parliament is omnicompetent; any purported entrenchment is ineffective because a later Parliament may simply repeal the entrenching provision expressly or by implication. On this view, no procedural fetter can limit future Parliaments.

Self-embracing sovereignty (Jennings): Parliament is sovereign as to substance but may redefine the manner and form of future legislation. If Parliament enacts that legislation on subject X must satisfy condition Y (e.g. a referendum, special majority, bicameral approval), then legislation purporting to address X without complying with Y is not an 'Act of Parliament' within the meaning of the rule of recognition. A later Parliament remains free to repeal the manner-and-form requirement — but it must do so using the prescribed procedure.

The manner-and-form doctrine

The manner-and-form theory holds that Parliament may entrench certain procedures or formalities but not substantive outcomes. For example:

• Valid entrenchment: 'No Act affecting the franchise may be passed without approval by referendum.'
• Invalid entrenchment (on Diceyan view): 'No Act may abolish the monarchy.'

Foundation:

1. What is the difference between 'continuing' and 'self-embracing' conceptions of parliamentary sovereignty?

1. Explain the ratio decidendi of R (Jackson) v Attorney General and identify two significant obiter dicta.

Standard:

1. 'The Parliament Acts demonstrate that the United Kingdom has already accepted a species of procedural entrenchment.' Discuss.

1. To what extent did Jackson depart from the enrolled Bill rule established in Pickin v British Railways Board?

Challenge:

1. 'If Parliament enacted a statute providing that the Human Rights Act 1998 may be repealed only by a two-thirds majority of both Houses, a court asked to apply a subsequent simple-majority repeal should refuse to do so.' Critically evaluate this proposition in light of Jackson and manner-and-form theory.

Essential:

• H.W.R. Wade, 'The Basis of Legal Sovereignty' [1955] CLJ 172 — foundational argument that sovereignty rests on political fact, not legal rule.
• Sir Ivor Jennings, The Law and the Constitution (5th ed, 1959), ch IV — classic exposition of manner-and-form.
• M. Elliott, 'The Sovereignty of Parliament, the Hunting Ban and the Parliament Acts' [2006] CLJ 1 — excellent analysis of Jackson.

Highly recommended:

• T.R.S. Allan, 'The Constitutional Foundations of Judicial Review: Conceptual Conundrum or Interpretative Inquiry?' [2002] CLJ 87.
• J. Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (CUP, 2010), chs 1–3 — defends continuing sovereignty.
• A.W. Bradley, 'The Sovereignty of Parliament — Form or Substance?' in J. Jowell & D. Oliver (eds), The Changing Constitution (7th ed, OUP, 2011).

Advanced:

• N.W. Barber, 'The Afterlife of Parliamentary Sovereignty' (2011) 9 ICON 144 — argues sovereignty is no longer a useful concept.
• Paul Craig, 'Sovereignty of the United Kingdom Parliament after Factortame' (1991) 11 YEL 221.
• Jeffrey Jowell, 'Parliamentary Sovereignty under the New Constitutional Hypothesis' [2006] PL 562 — supportive of Jackson obiter.
• Richard Ekins, 'Acts of Parliament and the Parliament Acts' (2007) 123 LQR 91 — critique of the 'redefinition' reasoning.