Scrutiny of Acts and Regulations Committee

ISSUE

RESPONSE

RECOMMENDATIONS/SOLUTIONS

Should the jurisdiction of the Supreme Court continue to be entrenched?, ie: so that legislation which alters or varies section 85 of the Constitution Act 1975 must be passed by absoloute majorities of both Houses.

Yes.

The jurisdiction of the Supreme Court should continue to be entrenched by the absoloute majority procedure.  The main reason for this is that the Rule of Law is a fundamental constitutional principle and is worthy of entrenchment.

Rec. No.1 The C'tee recommends that the jurisdiction of the Supreme Court should continue to be entrenched so that any Bills altering s.85 should be passed by absoloute majorities of both   Houses.

How can Bills which alter s.85 be more easily identified so that it is clear to the Parliament which should be passed by absoloute majorities in both Houses?

The following amendments will assist in the identification of the Bills which alter s.85: -

(1) the enactment of an express declaration clause;   (Rec. No.3)

• the Constitution Act should be amended so that a provision of a Bill shall not be taken as intending to vary s.85 unless it expressly declares its intention to do so.   (Rec. No. 3)

• if Rec. No.3 is accepted, the Constitution Act be further amended to make it clear that the compliance of a Bill with the requirement for an express declaration does not relieve it of the necessity to comply with the absoloute majority procedure imposed by s.18.   (Rec. No. 4)

(2)  the Minister responsible for a Bill which expressly declares its intention to alter s.85 should set out those reasons during the second reading speech;  (Rec. No.2)

• where a Bill contains a provision which expressly declares its intention to alter s.85, the responsible Minister shall table a document during the second reading speech setting out in detail the reasons justifying the adoption of that course. In the absence of such a statement, the provision, not the whole Bill shall be  void.    (Rec. No.2)

(3) Parliamentary Counsel should advise the relevant Minister and Department where necessary. (Rec. No.7)

• Parliamentary Counsel should advise the relevant Minister and Department where it is considered that any provision (express or otherwise) of a Bill raises a potential issue in relation to the jurisdiction of the Supreme Court - Where there is an express declaration of intention to alter s.85, advise the Minister, the presiding officers and the Clerks of both Houses that a statement of reasons will be required and that an absoloute majority will need to be obtained.(Rec. No.7)

4)  A Bill which contains a provision which seeks to protect the decision of a body from judicial review by the Supreme Court shall be deemed to be a Bill altering s.85 and therefore subject to absolute majority procedures and accompanied by an express declaration.  (Rec. No. 6)

• The Committee recommends that a specific provision should be inserted in the Constitution Act 1975 to the effect that a Bill which seeks to   protect the decision of a body from judicial review by the Supreme Court shall be deemed to be a Bill altering  s.85 and be required to be passed by an absolute majority and an express declaration.  (Rec. No.6)

What additional safeguards should be considered with respect to the protection of the jurisdiction of the Supreme Court?

The following amendments will assist in the protection of the jurisdiction of the Supreme Court:-

(1) There should be a scrutiny of  Bills Committee which is required to  report to the Parliament in respect ofany s.85 provisions.   (Rec. No.9)

• The Committee recommends that there should be a scrutiny of Bills Committee which should examine Bills in respect of particular human rights and administrative law criteria.  The Committee should also be required to examine and report on all Bills which alter or vary s.85 of the Constitution Act 1975.   (Rec. No.9)

(2)  Any  provision of any Bill which alters s.85 of the Constitution Act 1975 and is passed in breach of the absolute majority requirements or the requirement for a ministerial statement should be void.  (Rec, No.10)

• The Committee recommends that the Constitution Act 1975 be amended so that a Bill containing a provision altering s.85 which has been passed in breach of the absolute majority requirement or the requirement for a ministerial statement of reasons, only the provision operating upon s.85 should be void.  (Rec. No. 10)

(3)  The Constitution Act 1975 be further amended to make it clear that compliance of a Bill with the requirement for an express declaration clause does not relieve it of the necessity to comply with the absolute majority procedure.  (Rec. No.4)

• The Committee recommends that the Constitution Act 1975 be amended to make it clear that the compliance of a Bill with the requirement for an express declaration does not relieve it of the necessity to comply with the absoloute majority procedure. (Rec. No. 4)

What additional recommendations did the Committee make?

The Committee made two further suggestions:-

(1)  A Bill that has been passed by an absolute majority, is the subject of a ministerial statement and contains an express declaration, should have a certificate to that effect by the Presiding Officers on the face of the Bill.   (Rec. No. 8)

• The Committee recommends that where a Bill contains an express declaration, has been the subject of a ministerial statement and has been passed by an absoloute majority, a certificate to the appropriate effect by the Presiding Officers should appear on the face of the Bill.  (Rec. No.8)

(2)  That there be a provision in the Constitution Act 1975 to the  effect that whenever jurisdiction is conferred on a body, concurrent jurisdiction is also conferred on the Supreme Court.  (Rec. No.5)

• The Committee recommends that a provision should be inserted into the Constitution Act 1975 to the effect that whenever jurisdiction is conferred upon the Supreme Court, and that in such circumstances, s.85 of the Constitution Act 1975 is not repealed, altered or varied.