Charon QC podcast: arresting the Pope, is legislation invalid, and a hung Parliament – who gets to be PM?

by Carl Gardner on April 16, 2010

Charon QC interviewed me this afternoon as part of his “20 minutes” series of podcasts. First we spoke about arresting the Pope following my post earlier today. The we moved on briefly to discuss the former UKIP MEP Ashley Mote’s idea that all legislation since 2000 is “invalid“, before finishing with a discussion of who gets to be Prime Minister in the event of a hung Parliament, something I may write more about soon.

I enjoyed talking to Charon as always – it’s a good discussion about a deadly serious piece of legal creativity and a wholly misguided one, and an exploration of some constitutional hypotheticals that may be about to come true. Listen to the podcast here.

On Ashley Mote’s idea, you should always be sceptical of a claim that Parliament “can’t” do something, or that something it has done is “invalid” – a type of claim that only makes any sort of legal sense if you mean Parliament has breached human rights or especially EU law, yet which seems to be coming increasingly often from Eurosceptics, who ought to support Parliamentary sovereignty, you might think. He argues that Letters Patent creating peerages can’t be amended by general legislation – but his only basis for this argument appears to be a written answer from Baroness Ashton which he’s misconstruing.  All she was saying was that Acts don’t have the effect of changing the legal effect of Letters Patent incidentally – it needs to be clear that Parliament does indeed intend to change their effect. She actually cited the House of Lords Act 1999 as an example of an Act plainly intended to change the membership of the House. In any case, Letters Patent are irrelevant anyway. The entitlement to sit  in the Lords is not created by Letters Patent but by the Queen’s writ of summons; the only question is whether she has failed to summons anyone qualified to sit. But the House of Lords Act 1999 makes clear the old hereditaries are no longer qualified. Plus, he’s forgotten the enrolled bill rule in Wauchope and in Pickin. The courts wouldn’t entertain any legal challenge to Acts of Parliament based on arguments like his.

{ 2 comments… read them below or add one }

1 ObiterJ April 17, 2010 at 11:35

Listened to your podcast and entirely agree on this one. Good point (above) re Eurosceptics – you would expect them to support parliamentary sovereignty.

As I see it, Parliament (as a sovereign body) is entitled to alter the composition it uses to enact law. It did this by the House of Lords Act 1999 which excluded all but 92 hereditaries. It did not alter their Letters Patent (granting and setting out the terms of their various peerages) but it did remove their right to claim a writ of summons. [Some peers opted out and did not wish to receive such writs]. Also, as you say, the courts adopt the “enrolled bill rule” and do not get into arguments about parliamentary processes {British Railways Board v Pickin 1974}.

The remainder of 2010 (and perhaps beyond) is going to bring some fascinating constitutional questions to the fore. I look forward to it as, I am sure, do you.
.-= ObiterJ´s last blog ..Is all legislation passed since 2000 unlawful ? =-.

2 Carl Gardner April 19, 2010 at 13:28

I certainly do, Obiter! It’s really interesting, this new angle from Eurosceptics. Very unwise of them ideologically, I think.

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