REVIEWS
| Date | 01 July 1971 |
| Published date | 01 July 1971 |
| DOI | http://doi.org/10.1111/j.1468-2230.1971.tb02342.x |
REVIE.WS
REFORM
OF
THE
CONSTITUTION.
By
0.
HOOD
PHILLIPS,
Q.C.
[London: Chatto
&
Windus Ltd., Charles Knight
&
Co.
Ltd.
1970. 162 pp. S2.10 hardback; 75p paperback.]
lrrrs
short book is good value for any constitutional law student.
Easy
to
renxl,
it
will’lift
his
mind from familiar grooves and give him something
new
to think
about
Because
it
k
not addressed exclusively to law students and
incliqdes
a
fair amount
of
basic exposition,
it
can also be recommended
for
students
to
rend before kliey begin their courses. Like all Professor lIcm1
Pliillips’s writings, it is lucid and accurate. There are also glimpses
of
the
autlior’s deep learning, and some
flashes
of
sardonic humour and indignant
expostulation
(e.g.
in his comment on the “squalid practice” (p.
66)
whereby
governments offer financial
douceurs
to
tlie electorate immediately before
fixing the date of a General Election, and in his remarks about journalistic and
other intriisions on personal privacy).
One would not expect Professor I-Iood Phillips’s general approach to be
radical. Often he
is
content
to
descde what reforms otlicrs have suggested,
refraining from expressing any view of his
own;
this reticence, incidentatllly,
somatimes clarifies the issues
for
the student. Sometimes
his
opinions cmerge
only by implication
(“
whether one approves of [legislation rcmoving the
taint
of
criminality from homosexual relations between consenting adiillts,
the recent abortion law reform and the abolition of theatrical ccnsorsliiip]
will
depend
on how far one is willing to
go
along with permissiveness”
(p.
GB)).
Illit he
is
clear that the maximum life of
a
Parliament should
be
reduced
to
four ycars, that the power to advise
a
dissolution sl~ould be
transferred back from
the
Prime Minister to the Cabinet, that membership
of the House of Lords should be dissociated from the hereditary peerage,
and the legal security of judicial tenure ought not to remain entrusted to Clie
politiciims.
Par more interesting 4s his advocacy of
a
written and entrenched con-
stitution, including guarantees of fundamental
riglits
and provision
for
judicial review of legislation by tlie Judicial Committee
of
the Pr-ivy Couiicil.
Its
main purpose would be to protect important parts of constituticlnal
law against alteration by
a
small temporary majofity in the House
of
Conimons.
A
cons~tution might be adopted
either
by Parliament, followed
by submission to tlie elcctorate
at
a
referendum, and then self-liquidal ion
by Parliament as previously constituted;
or
by
a
Constituent Assemlb~ly,
to which Parliament had surrendered its own authority before corriinitt~ing
suicide. The judges would have
to
take an oath of loyalty
to
the new con-
stitution.
I
have no doubt that either method would be legally eficacious.
If,
however,
the
Constituent Assembly procedure were to be adopted, that
body would have
to
be temporarily equipped
~6th
the full powers
of
the
deceased Parliament,
for
its deliberations would probably last for some
montlis and ordinary legislation would have to be passed during that periiod.
Prom time to time Professor Hood Phillips takes side-swipes
at
those
who have contended that Parliament
as
at
present
constituted can redefine
itself
ad
hoc,
or
alter its own
legislative
procedure
so
as to make
I~IWS
easier
or
more c2inicult
to
enact. To him the conrept
of
redefinition of
Parlianient
is
a
“quibble” (p.
1/54)
and
a
“play upon words”
(p.
1156).
But his own attempts
nt
analysing the constitutional effects
of
the
Parlia-
ment Acts involve some precarious verbal jugglery.
At
page
60
lie suggl%ts
462
JULY
1971
REVIEWS
463
that perhaps Parliament can prolong
its
own life under the special Parlia-
ment Acts procedure, notwithstanding
the
prohibition
in
section
2
of
the
1911
Act, but
at
pages
89
and
93
he gives convincing rensons why it cannot.
(Perhaps
this
lapse would have been avoided if there had been any cross-
referencing, footnotes
or
index.) At
a
more rarefied level, he questions
the validity of the Parliament A&
1949
(see
pp.
18-19, 90-92),
on
the
grounds that, like the Act of
1911,
it creates
a
subordinate legislative
body, and that
it
is not open to
a
delegate to enlarge its own powers; the
1949
Act
did,
of
course, further reduce the powers of the
Lords,
and
it
was
passed under the
1911
Act procedure.
From
this it follows that any “Act”
passed under the
1949
Act procedure will be nugatory.
Thds
analysis of the
1949
Act, extremely interesting but perhaps out
of place in an elementary book, is not manifestly wrong. Suppose that
it
is
correct, and
that
“Parliament” has purported to abolish the second
chamber
or
to supersede
the
House of Lords by
a
reconstituted body under
the
1949
Act procedure. There will then be no Parliament in existence;
no
legislation can be lawfully enacted by the institution masquerading
as
Parliament. Presumably this situation cannot be reyrlarised
at
all, unless
and until the old House of Lords is reconvened by executive action. A
pro-
longed legislative vacuum may therefore ensue-if Professor Hood Phil-
lips’s view
is
adopted by the
courts.
Public policy considerations suggest that
a
simpler analysis may be
preferalk In
1911
Parliament
did
partly redefine itself. Thereafter
“l’arliament” had two passible meanings.
Its
new meaning was further
redefined by Parlianient (as reconstituted under the
1911
Act) in
1949.
Measures passed by Parliament under the Act of
1911
bore the hallmarks
of
Acts
of
Parliament. They were assented to, enrolled, printed and published as
duly enacted Acts
of
Parliament, with
a
special enacting formula. The burden
of establishing that such measures were nothing more than
a
peculiar brand of
*‘
delegated
”
legislation
is
a
heavy one
to
discharge.
Why then, does Professor Hood Phillips assert that the Parliament Act
1949
is
probably an
ultra
&re8
piece of delegated legislation? Clearly lie
does not like
its
substantive content. But he rests his argument on logic.
If
the
1949
Act really
is
delegated legislation, then he
is
right. But what
is the major preniiss of his argument? This is not entirely clear.
Is
it
that the concept
of
Parliament as
a
legislative body comprising the Sovereign
and consenting Lords and Commons is immutable, till the day
a
revolution
comes or Parliament commits suicide? Apparently not; he does not deny
the possibility that Parliament
as
ordinarily constituted may replace the
Lords, and he does not evince addiction to the extreme fundamentalist
view. The other possible explanation
is
that the new legislative body
created by the
1911
Act cannot be Parliament itself, because Parliament
has unfettered and unfetterable powers, and legislation under the
1911
Act is limited both
in
subject-matter and in terms of procedure. This
juristic anomaly is therefore
a
mere delegate
of
Parliament, whatever
appearances may suggest. At
this
point,
I
am
driven
to
refer
to
the
preceding paragraph
of
this review, and to invitc Professor Hood Phillips
to
consider whether my verbal quibble
is
not as good
as
his own.
S.
A.
de
SMITIK.
SOME
CONSTITUTIONAL
PROBLEMS. By
K.
SUBBA RAO. [Bombay
:
C~NTIIIIIUTOIIS
to the Sctalvad
Law
Lectures series have maintained a
high standard over the years.
Mr.
Subba Rao’s course is perhaps
the
most interesting
to
have been published. He was probably the most contro-
versial judge In India, carrying judicial acbivism in matters of constitu-
University
of
Bombay.
1970.
815
pp.
Rs.
20.1
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