Centennial to the Parliament Act 1911: The Manner and Form Fallacy

Public Law, No. 1, p. 105, 2012

23 Pages Posted: 2 Feb 2012  

Rivka Weill

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; University of Chicago Law School; Yale Law School

Date Written: January 31, 2012

Abstract

In this article, we suggest a new interpretation of British constitutional history under which the Parliament Act 1911 is treated as a constitutional document enacted by 'We the British People.' The Act's process of enactment resulted from Britain's commitment at that time to popular sovereignty, with the 1911 Act receiving popular endorsement. In contrast, we argue, that the Parliament Act 1949, which purported to amend the earlier Act, was endorsed not by the People, but rather by merely the Lower House and the Crown. We thus assert that the Jackson Court could have legitimately decided to invalidate the Parliament Act 1949, as well as the Hunting Act, whose process of enactment derived from it. Since the 1911 Act amounts to a constitutional document enacted by 'We the British People,' it enjoys superior status and can only be amended by the People. This dualist constitutional theory is the one acted upon in the US.

Thus, the Jackson decision by its nature presents a defining moment in British constitutionalism. By not invalidating the Act, the Court in Jackson joined Parliament in redefining Britain's ultimate rule of recognition as based on parliamentary sovereignty in its 'manner and form' variant. It did so, without even acknowledging the decision's effect on popular sovereignty. We further explain why the resort to 'manner and form' coupled with the abandonment of popular sovereignty required the Court to introduce in dicta its commitment to common-law constitutionalism, by suggesting that in extreme cases the court may rely on it.

Keywords: Parliament Act 1911, Parliament Act 1949, referendal theory, manner and form, common-law constitutionalism, Jackson case, popular sovereignty, Hunting Act

Suggested Citation

Weill, Rivka, Centennial to the Parliament Act 1911: The Manner and Form Fallacy (January 31, 2012). Public Law, No. 1, p. 105, 2012. Available at SSRN: https://ssrn.com/abstract=1996452

Rivka Weill (Contact Author)

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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