Boundaries between Parliament and the Courts
| Author | S. A. Smith |
| Published date | 01 May 1955 |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00301.x |
| Date | 01 May 1955 |
NOTES
OF
CASES
BOUNDARIES
BETWEEN
PARLIAMENT
AND
THE
COURTS
THE litigation that resulted from the recommendations contained in
the First Periodical Report of the Boundary Commission
for
England
(Cmd.
9311 (1954)
)
under the House of Commons (Redistribution
of
Seats) Act,
1949,
raised several issues of constitutional impor-
tance.
In
what circumstances (if any) may a court examine the
validity
of
subordinate legislation that is subject to proceedings
in
Parliament? Is a distinction to be drawn for any purpose
between Orders in Council and other statutory instruments
?
Has
a court jurisdiction to award an injunction against a Minister of
the Crown? These were among the questions touched upon but
not conclusively answered in the courts.
The
1949
Act substantially consolidates the provisions of the
House of Commons (Redistribution
of
Seats) Acts,
1944
and
1947.
Each
of
the Commissions set up under the
1949
Act consists
of
three
ex-o@cio
members (the Speaker, who is chairman, the
Registrar General and the Director-General of Ordinance Survey)
and two other members appointed by Ministers; the practice has
been to appoint members who are not active politicians. A Com-
mission is required to keep under review representation
in
the House
of Commons and to submit to the appropriate Secretary of State
at intervals of not less than three
or
more than seven years a
general report
on
the redistribution of constituencies in the area
with which
it
is concerned, and
it
may make recommendations
on
the boundaries of individual constituencies
or
groups of constitu-
encies from time to time. Before commencing a general review
it
must give public notice
of
its intention, publish its provisional
recommendations locally and consider any representations sub-
mitted to
it.
It
may cause local inquiries to be held; the Commis-
sion for England held seven local inquiries through Assistant Com-
missioners appointed
ad hoc.
In formulating its proposals a Commission is to observe the
rules set out in the Second Schedule to the Act. These rules
prescribe,
inter alia,
that the number of constituencies for Great
Britain
shall not be substantially greater
or
less than
613
(of which
not less than seventy-one shall be Scottish and not less than
thirty-five Welsh) and for Northern Ireland shall be twelve
(r.
1);
that every constituency shall return a single member
(r.
2);
that,
so
far as is practicable, having regard to the foregoing rules,
constituencies shall not cut across existing local government bound-
aries
(1.
4);
that the electorate of any constituency shall be
as
281
282
THE
MODERN
LAW
REVIEW
VOL.
18
near the electoral quota as is practicable having regard
to
the
foregoing rules,
and that a Commission may depart from the strict
application of rule
3
in order to avoid excessive disparities between
the electorate
of
a constituency and neighbouring constituencies
or
the electoral quota
(1.
5);
that a Commission may depart from the
strict applica,tion of rules
4
and
5
if
this seems desirable for special
geographical reasons
(1.
6);
and that the expression
"
electoral
quota
"
means, in relation to Great Britain, the quotient of the
total electorate of Great Britain divided by the number of con-
stituencies in Great Britain at the date when tbe general revision
is announced.
The Act provides that as
soon
as may be after the Boundary
Commission has submitted a report to
him,
the Secretary of State
shall
lay
it
before Parliament, together with (unless the report
recommends
no
changes) the draft of an Order in Council
for
giving
effect
to
its recommendations, with
or
without modifications
(s.
2 (5)
).
The
draft
of
the Order in Council may make provision
for any consequential
or
incidental matters, and
if
it
incorporates
modifications of the recommendations the Secretary of State must
lay before Parliament a statement of the reasons for the modifica-
tions. When the draft is approved by resolution of each House
Qf
Parliament, the Secretary of State
shall
submit
it
to Her Majesty
in Council who may make an Order in terms of the draft. The
validity of an Order
in
Council made under the Act and reciting
that a draft thereof has been approved by resolution of each House
shall not be called in question in any legal proceedings whatsoever
The Boundary Commission for England reported that, having
been informed that the number of constituencies
for
Scotland and
Wales would probably remain at seventy-one and thirty-six respec-
tively,
it
decided
to
proceed
on
the basis that the number of
constituencies for England should not be substantially greater
or
less than the existing number of
506 (613-71-36).
It
therefore
adopted an electoral quota of
57,123,
calculated by dividing the
total
English
electorate by
506.
Yet rule
7
had prescribed that
the quota should be arrived at by dividing the total electorate of
Great Britain
by the existing number of constituencies in
Great
Britain.
This would have given an electoral quota of
55,670
and
a basic number of
519
English constituencies instead of
506.
The
Commission apparently chose to found its recommendations
on
the
assumption that
519
would be a substantially greater number than
506.
The effect of
its
final recommendations, which provided for
511
constituencies in England, was to maintain, through a deviation
from the prescribed electoral quota, the under-representation of
England in relation
to
Scotland and Wales. Two points may be
noted: the Commission for England had proceeded
on
the same
basis
as this in its
1947
Report; and the effect
of
the
1954
(8.
3).
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