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Friday, June 11, 2010

Presumption that Power to Legislate Generally not feasible

Constitutional and Administrative Law, 8th edn (2001), p 80. He also prays in aid the observations of Lord Donaldson of Lymington speaking extra-judicially in support of his Parliament Acts (Amendment) Bill (HL Hansard, 19 January 2001, cols 1308-1309):

"As your Lordships well know, it is a fundamental tenet of constitutional law that, prima facie, where the sovereign Parliament - that is to say, the Monarch acting on the advice and with the consent of both Houses of Parliament - delegates power to legislate, whether to one House unilaterally, to the King or Queen in Council, to a Minister or to whomsoever, the delegate cannot use that power to enlarge or vary the powers delegated to him. The only exception is where the primary legislation, in this case the 1911 Act, expressly authorises the delegate to do so. In other words there has to be a Henry VIII clause."

[R v Burah (1878) 3 App Cas 889, 904-905; Taylor v Attorney General of Queensland (1917) 23 CLR 457; McCawley v The King [1920] AC 691, 703-704, 710-711; Minister of the Interior v Harris 1952 (4) SA 769, 790; Clayton v Heffron (1960) 105 CLR 214 and Bribery Commissioner v Ranasinghe [1965] AC 172, 196-198. ]
URL: http://www.bailii.org/uk/cases/UKHL/2005/56.html Cite as: [2005] 4 All ER 1253, [2006] 1 AC 262, [2005] UKHL 56, [2005] 3 WLR 733 ]  The decision of the Privy Council in Bribery Commissioner v Ranasinghe [1965] AC 172 is also important. It was an appeal from Ceylon. An Act was passed but not in conformity with the constitutional legislative procedure. Lord Pearce delivered the judgment of the Privy Council. He observed, at pp197-198:

"A legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the constitution is 'uncontrolled,' as the board [in McCawley's case [1920] AC 691] held the constitution of Queensland to be. Such a constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with: and the alteration or amendment may include the change or abolition of those very provisions. But the proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process."

This dictum is consistent with the analysis already explained.

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