Manner and form

Hi guys, just going through my public law notes, and I really don't get the manner and form argument. I just have no idea what it's on about... unless it means that whether something Parliament enacts is binding or not depends on themanner and form of the enactment? I would be grateful of any help :-) Hope all your revision is going better than mine! x

Reply 1

TommehR

Hmm, I haven't studied this but I can have a guess.

I think that it probably comes in the course of a discussion of Parliamentary Sovereignty whereby the courts have to apply Acts of Parliaments that have been enacted in the proper form. So essentially there are certain ways in which Parliament must enact legislation (but regulation of these is left up to Parliament). I guess that this would be the ordinary legislative process. Well, rather that each of the three elements of the UK Parliament (Crown, Commons, Lords) must assent to the legislation (subject to Parliament Act 1911 and 1949 exceptions). Just had a quick look and it seems that there must be some words of enactment used. So I guess that would be the "Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-" part of a statute.

So in Bowles v Bank of England the courts were not bound to apply the resolution that Parliament passed as it wasn't an Act of Parliament enacted in the proper way.

So I'm fairly sure that your interpretation is the correct one.

Reply 2

pinkfairybeth

Yeah, you see that's what I thought but I'm confused by r (jackson) v attorney general. In that case, HL held that the Hunting Act was valid even though it was passed without the Lords' consent- authority being the changes made to the 1911 Parl. Act by the 1949 Parl. Act- shortening the time period that the Lords could block legislation to one year. But then underneath in my textbook, it says that 'it follows from Jackson that the definition of an Act of Parliament differs according to whether it has been enacted with the consent of both Commons and Lords'. That doesnt seem to add up.

Reply 3

TommehR

pinkfairybeth

Hmm, which textbook are you using?

I have just gone and got Loveland (how lame, my Public exam has come and gone) and he seems particularly scathing of the decision in Jackson. He suggests that the reasoning of the majority is flawed as it necessarily accepts the assumption that the UK now has two sovereign law-makers (Crown+Lords+Commons and Crown+Commons), both of which are legally omnipotent. So in effect the court has held that Acts of Parliament passed by C+C+L and C+C are the same as neither is a subordinate legislature. It's obviously a bit odd that the court held that there could be two legally sovereign, omnipotent legislatures existing alongside each other.

Loveland suggests that the Court of Appeal's argument is perhaps more satisfactory as it seems to suggest the C+C is subordinate to C+C+L. So I don't know, it's definitely an area for discussion.

I'm sorry, none of that really helps you.

Reply 4

pinkfairybeth

No it does help, thankyou, I really appreciate it! I'm using Bradley and Ewing and they don't seem to be quite so critical about it, so that's what confused me! Thanks for getting your textbook! My exam is on friday... dreading it! Revision has been left too late too because we had a very annoying 'legal skills' question which has eaten up about 3 distracted weeks of my time. That and summer coming early :wink:

Reply 5

TommehR

Bradley and Ewing is the most useless book I have ever come across. It's our primary text for Public I and II but it's just absolutely dreadful. The Loveland book is a lot better but I find that sometimes it's a bit detailed and he ends up going off on strange tangents. Bradley and Ewing on the other hand is little more than an elaborate revision guide. It covers a great deal of ground but does engage with the material at all, nor give any critical analysis.

I've open it maybe two or three times since I got it, and put it back down after just a few minutes. I'd recommend having a looking at the Loveland book if you get a chance.

Google yielded this: http://users.ox.ac.uk/~lawf0013/P'SOV499.htm

Might be worth a gander?

Reply 6

pinkfairybeth

Yeah thanks for that! Hmm the B&E things is not reassuring, I've been using it pretty much properly this year! I know what you mean about the critical analysis though, I guess I'll just have to form my own!

Reply 7

Fireman John

The manner and form argument, as I understand it, relates specifically to the concept of Parliamentary Sovereignty on the principle that the only thing Parliament CANNOT do is bind a future Parliament. The question is (and please look this up to confimr the validity 'cos I'm wrting off the top of my head without reference to my notes and I haven't FULLy revised this element myself, yet)- following Trenthowan v AG for NSW (Australian case) where the outgoing palrliament DID bind the incoming parliament from abolishing the upper house by putting in place a specific procedure that had to be followed. The courts held that the specific procedure HAD been enacted correctly and therefore it WAS a binding procedure. Some dipute that this has any implications on the UK Parliament as the Australian parliament is/was created by the UK Parliament and therefore not at the absolute pinnacle of legislative authority.

I suppose it does have some parallels with redefinition when you look at the way Parliament redifined itself with the Parliament Acts of 1991 and 1949 although ultimately they can obviously be repealed.

Reply 8

pinkfairybeth

OK... why does this have to be so confusing?! Thanks for your reply anyway. I think that if a questiona bout M&F comes up in the exam I'll just answer a different one.

Reply 9

Fireman John

I'm not sure why it IS confusing... I asked myself the same question when I was looking at it. I think the concept is relatively simple. Can a future Parliament be bound by the MANNER and FORM put in place by a previous Parliament? The answer - according to the Trenthowan case - is YES - if they themsleves follwed the correct manner and form in enacting the changed manner and form process... however, bear in mind the supposed lower heirarchy of the Australian Parliament then the UK Parliament. However, consider also the redefinition of Parliament witht he Parliament Acts and the result in the Jackson case which confirmed that the Parliament Acts were valid on the grounds that,

a) the 1911 Act said when passed by such a procedure they would become ACTS... it wasn't delegated legislation, and
b) they hadn't EXTENDED their powers (the commons) with the 1911/49 Acts, they'd merely reduced the power fo the Lords.

My argument to that would be that by REDUCING thw power fo the Lords - how can the power of the commons NOT have been increased?

But essentially it is a very straightforward concept.

Looking at opast exams from my university I doubt very much you'll get aquestion that relates SOLELY to manner and form - you'll get a question asking you to dioscuss the concept of Palriamentary sovereignty - whereby you will be required to look into the DICEYAN view - where you'd perhaps discuss the manner and form argument, the enrolled act rule, implied repeal, the ECA 1972, Factortame, Thoburn (Metric Martyrs), Jackson etc... I doubt it would be manner and form alone.

Reply 10

pinkfairybeth

The reason why it is confusing is becasue the section in my textbook that deals with manner and form talks about the enrolled Act rule, pickin, jackson and then trenthowan. It suggests a comparison between the decisions in pickin and jackson when I can't really see a difference- in pickin, the court said it was to be left to parliament and in jackson, the court said that the legislation was valid too. So I don't get what the difference is. I think I'm starting to understand it now though.... I also dont really understand the difference between the manner and form argument (as illustrated by trenthowan) and the enrolled act rule- the textbook seems to kind of put them together. Argh!

Reply 11

Fireman John

Just about to go out to the gym and brushing my teeth when a bit of clarity hit me. Sat at the keyboard now with toothbrush in mouth and mouthful of foamy toothpaste...

right - for me the Parl. Sov. thing starts with Dicey saying the Parl Sov is everything - it's the most fundamental principle - sits above the rule of law - the only thing parliament can't do is bind itself...

You then go through all of that stuff - manner and form & redefinition, implied repeal etc. etc. etc. - and we get to the Jackson case.

And this is where Lord Steyn declares that Dicey's theory is now dead in the water. Steyn says that there is, post HRA 1998, a "new legal order". That the Rule of Law is the funamental principle.

Manner and Form is only a very small part of Parliamentary Soveriegnty - I really wouldn't get too worked up about it... just remember what it is relating to "can a parliament bind a future parliament".

Reply 12

Fireman John

Ah.... now I'm seeing it...

the difference between Pickin and jackson - you can't see it?

What did the court say in Pickin? We can't look beyond the Act - we can't look behind it. In Dalkeith and Edinburgh Railway they'd said we can only look at the Parliamentary Roll - if the Act is there - it's law... Pickin wanted the court to look at how the Act had been passed - Parliament had been misled. And it had. But the court said "we can't look behind the Act".

In Jackson the COURT DID LOOK BEHIND THE ACT. THEY DID LOOK AT HOW THE HUNTING ACT HAD BEEN PASSED.

However, they did this by declaring that they were performing an exercise in Statutory Interpretation - could the 1911 Act be used to pass the 1949 Act and was legislation passed by the 1949 Act therefore valid...

Thats the difference between Pickin and Jackson and that, is where the manner & form argument is sort of relevant - bcause the 1949 Act had been passed by correct "manner and form" then it was, indeed, valid legislation.

Reply 13

pinkfairybeth

Yeah thanks... I am definitely starting to understand now. Manner and form would come in when you talk about parliamentary sovereignty, the idea that a parl cannot bind a future one illustrating this. Mannner and form is an exception to this rule and is both a limit of PS (of the future Parl.) but an example of it (of the current Parl.). Jackson... need to look at the case again I guess... funnily enough it isnt mentioned in my casebook! No wonder they made us write an essay on it for the second tutorial.... but somehow I doubt my understanding of the concept was quite up to scratch at that point!