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Friday, November 19, 2004

A 'foxy' moment for the UK constitution

Still another distraction in the news yesterday was an event in the UK Parliament that might just emerge in the history books as one of those 'constitutional moments' that will transform British politics for the coming decades. And its all about hunting foxes....

For those in the US who might not be following all this, for the past several years the House of Commons and the House of Lords have been at odds over the future of hunting with dogs -- a 700 year old tradition that most of us associate with images of men (and women) dressed in red coats and wearing funny hats, riding horses across fields and jumping over fenses in pursuit of a pack of hounds who, in turn, are in pursuit of foxes (or other game, as it turns out). As of February 18, 2005, this long time tradition will be banned in England and Wales (but still legal in Northern Ireland; it was banned earlier in Scotland).

So what does this have to do with the British constitution? Well, in order to get the ban through Parliament, its advocates in the Commons (a majority) had to overcome the oppostion of the House of Lords which had failed to support the legislation. This meant invoking the 1911 Parliament Act (amended in 1949), which contained provisions that allowed the Commons to pass legislation over the opposition of the Lords. Here is the relevant provision (2.1):

"if any Public Bill ... is passed by the House of Commons [in two successive sessions] (whether of the same Parliament or not), and, having been sent up to the House of Lords at least one month before the end of the session, is rejected by the House of Lords in each of those sessions, that Bill shall, on its rejection by the House of Lords, unless the House of Commons vote to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified thereto, notwithstanding that the House of Lords have not consented to the Bill..."


Yesterday, the Speaker of the House of Commons 'invoked' section 2.1, and the hunting ban bill was sent forward for 'Royal Assent'.

The anti-ban forces (led by The Countryside Alliance) has already filed suit in the High Court to challenge this action on several grounds, including that the Parliament Act as amended is itself unconstitutional, but even if it is, that it was not intended to be used in matters of 'personal conscience.' Failing that, they plan to challenge the ban as a violation of their rights under the European Union human rights laws.

If the Countryside Alliance wins on any of these points, it could amount to what Bruce Ackerman terms a 'constitutional moment' in the sense that it would mark a watershed point in how the British understand and apply their constitution principles. If their victory is based on a human rights judgment in the European courts, this can prove to be a constitutional moment for the EU as well....
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