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HOUSE OF LORDS |
SESSION 2005-06 [2005] UKHL 56 on
appeal from: [2005] EWCA Civ 126
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OPINIONS OF THE LORDS OF APPEAL for
judgment IN THE CAUSE
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Jackson and others (Appellants) v.
Her Majesty's Attorney General (Respondent)
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Appellate Committee
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Lord Bingham of Cornhill Lord Nicholls of
Birkenhead Lord Steyn Lord Hope of Craighead Lord Rodger of
Earlsferry |
Lord Walker of Gestingthorpe Baroness Hale of
Richmond Lord Carswell Lord Brown of
Eaton-under-Heywood |
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Counsel
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Appellants: Sir Sydney Kentridge
QC Richard Lissack QC Martin Chamberlain Marcus
Haywood (Instructed by Allen & Overy LLP) |
Respondent: Attorney General (Lord Goldsmith
QC) Philip Sales Clive Lewis (Instructed by Treasury
Solicitor)
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Interveners: League against Cruel
Sports David Pannick QC Gordon Nardell (Written
intervention) (Instructed by Collyer-Bristow)
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Hearing dates: 13 and 14 July 2005 |
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on Thursday 13 OCTOBER
2005
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HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Jackson and others (Appellants) v. Her Majesty's Attorney
General (Respondent)
[2005] UKHL 56
LORD BINGHAM OF CORNHILL
My Lords,
- The appellants all, in differing
ways, have an interest in fox-hunting. They wish that activity to
continue. They challenge the legal validity of the Hunting Act 2004
which, on its face, makes it an offence to hunt a wild mammal with a dog
save in limited circumstances. The appellants acknowledge that the
legislative procedure adopted to enact the Hunting Act was in accordance
with the procedure laid down in the Parliament Act 1949. But they
contend that the 1949 Act was itself invalid: it did not, as they
correctly say, receive the consent of the House of Lords; and the
Parliament Act 1911 did not, they submit, permit an Act such as the 1949
Act to be enacted without the consent of the House of Lords. Thus,
although the Hunting Act gives rise to the present issue between the
appellants and the Attorney General, the real question turns on the
validity of the 1949 Act and that in turn depends on the true effect of
the 1911 Act. The merits and demerits of the Hunting Act, on which
opinion is sharply divided, have no bearing on the legal issue which the
House, sitting judicially, must resolve.
- In these proceedings the
appellants sought a declaration that
"1. The Parliament Act 1949 is not an Act of Parliament
and is consequently of no legal effect.
2. Accordingly, the Hunting Act 2004 is not an Act of
Parliament and is of no legal effect."
The Queen's Bench Divisional Court (Maurice Kay LJ and Collins J)
declined to make such a declaration: [2005] EWHC 94 (Admin). So, on somewhat different grounds, did Lord
Woolf CJ, Lord Phillips of Worth Matravers MR and May LJ sitting in the
Court of Appeal: [2005] EWCA Civ 126, [2005] QB 579. On the appellants' behalf Sir Sydney Kentridge QC
repeats detailed arguments advanced in the courts below. Lord Goldsmith
QC, the Attorney General, resists those arguments. The League Against
Cruel Sports make written submissions in support of the Attorney
General.
The Hunting Act
- The Hunting Act received the royal
assent on 18 November 2004. Its words of enactment are:
"Be it enacted by The Queen's most Excellent Majesty, by and with
the advice and consent of the Commons in this present Parliament
assembled, in accordance with the provisions of the Parliament Acts
1911 and 1949, and by the authority of the same, as follows …"
The House of Lords did not consent. As presented for the royal
assent, the Hunting Bill bore two certifications by the Speaker of the
House of Commons:
"I hereby certify that this Bill as compared with the Hunting Bill
2003 contains only such alteration as is necessary owing to the time
which has elapsed since the date of that Bill."
"I certify, in reference to this Bill, that the provisions of
section two of the Parliament Act 1911, as amended by section one of
the Parliament Act 1949, have been duly complied with."
Neither of these certifications is questioned or challenged in any
way. The 1949 Act
- The 1949 Act was very short. It
was described in its long title as "An Act to amend the Parliament Act,
1911." Its words of enactment were as for the Hunting Act, save that the
only statutory reference was to the 1911 Act. Its substantial effect was
to reduce the number of successive sessions referred to in section 2(1)
of the 1911 Act from three to two, and to reduce the lapse of time
referred to in the proviso to section 2(1) of the 1911 Act from two
years to one.
The 1911 Act
- The 1911 Act was described in its
long title as
"An Act to make provision with respect to the powers of the House
of Lords in relation to those of the House of Commons, and to limit
the duration of Parliament."
The words of enactment were preceded by a preamble with three
recitals, which read:
"Whereas it is expedient that provision should be made for
regulating the relations between the two Houses of Parliament:
And whereas it is intended to substitute for the House of Lords as
it at present exists a Second Chamber constituted on a popular instead
of hereditary basis, but such substitution cannot be immediately
brought into operation:
And whereas provision will require hereafter to be made by
Parliament in a measure effecting such substitution for limiting and
defining the powers of the new Second Chamber, but it is expedient to
make such provision as in this Act appears for restricting the
existing powers of the House of Lords:"
The second of these recitals has an historical explanation, given
below. The standard words of enactment were used, since both Houses had
consented to the measure:
"Be it therefore enacted by the King's most Excellent Majesty, by
and with the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and by the
authority of the same, as follows …"
- Although this appeal turns on
section 2(1) of the 1911 Act, which is considered in more detail below,
that section must be understood in the context of the whole Act which,
save for the short title in section 8, I think it necessary to recite:
(1) If a Money Bill, having been passed by the House of Commons,
and sent up to the House of Lords at least one month before the end
of the session, is not passed by the House of Lords without
amendment within one month after it is so sent up to that House, the
Bill shall, unless the House of Commons direct to the contrary, be
presented to His Majesty and become an Act of Parliament on the
Royal Assent being signified, notwithstanding that the House of
Lords have not consented to the Bill.
(2) A Money Bill means a Public Bill which in the opinion of the
Speaker of the House of Commons contains only provisions dealing
with all or any of the following subjects, namely, the imposition,
repeal, remission, alteration, or regulation of taxation; the
imposition for the payment of debt or other financial purposes of
charges on the Consolidated Fund, or on money provided by
Parliament, or the variation or repeal of any such charges; supply;
the appropriation, receipt, custody, issue or audit of accounts of
public money; the raising or guarantee of any loan or the repayment
thereof; or subordinate matters incidental to those subjects or any
of them. In this subsection the expressions 'taxation,' 'public
money,' and 'loan' respectively do not include any taxation, money,
or loan raised by local authorities or bodies for local purposes.
(3) There shall be endorsed on every Money Bill when it is sent
up to the House of Lords and when it is presented to His Majesty for
assent the certificate of the Speaker of the House of Commons signed
by him that it is a Money Bill. Before giving his certificate, the
Speaker shall consult, if practicable, two members to be appointed
from the Chairmen's Panel at the beginning of each Session by the
Committee of Selection.
(1) If any Public Bill (other than a Money Bill or a Bill
containing any provision to extend the maximum duration of
Parliament beyond five years) is passed by the House of Commons in
three 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 for the
third time by the House of Lords, unless the House of Commons direct
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: Provided that this provision shall not take effect unless two
years have elapsed between the date of the second reading in the
first of those sessions of the Bill in the House of Commons and the
date on which it passes the House of Commons in the third of those
sessions.
(2) When a Bill is presented to His Majesty for assent in
pursuance of the provisions of this section, there shall be endorsed
on the Bill the certificate of the Speaker of the House of Commons
signed by him that the provisions of this section have been duly
complied with.
(3) A Bill shall be deemed to be rejected by the House of Lords
if it is not passed by the House of Lords either without amendment
or with such amendments only as may be agreed to by both Houses.
(4) A Bill shall be deemed to be the same Bill as a former Bill
sent up to the House of Lords in the preceding session if, when it
is sent up to the House of Lords, it is identical with the former
Bill or contains only such alterations as are certified by the
Speaker of the House of Commons to be necessary owing to the time
which has elapsed since the date of the former Bill, or to represent
any amendments which have been made by the House of Lords in the
former Bill in the preceding session, and any amendments which are
certified by the Speaker to have been made by the House of Lords in
the third session and agreed to by the House of Commons shall be
inserted in the Bill as presented for Royal Assent in pursuance of
this section:
Provided that the House of Commons may, if they think fit, on
the passage of such a Bill through the House in the second or third
session, suggest any further amendments without inserting the
amendments in the Bill, and any such suggested amendments shall be
considered by the House of Lords, and, if agreed to by that House,
shall be treated as amendments made by the House of Lords and agreed
to by the House of Commons; but the exercise of this power by the
House of Commons shall not affect the operation of this section in
the event of the Bill being rejected by the House of Lords.
3. Any certificate of the Speaker of the House of Commons given
under this Act shall be conclusive for all purposes, and shall not
be questioned in any court of law.
(1) In every Bill presented to His Majesty under the preceding
provisions of this Act, the words of enactment shall be as follows,
that is to say:-
'Be it enacted by the King's most Excellent Majesty, by and with
the advice and consent of the Commons in this present Parliament
assembled, in accordance with the provisions of the Parliament Act,
1911, and by authority of the same, as follows.'
(2) Any alteration of a Bill necessary to give effect to this
section shall not be deemed to be an amendment of the Bill.
5. In this Act the expression 'Public Bill' does not include any
Bill for confirming a Provisional Order.
6. Nothing in this Act shall diminish or qualify the existing
rights and privileges of the House of Commons.
7. Five years shall be substituted for seven years as the time
fixed for the maximum duration of Parliament under the Septennial Act,
1715."
The appellants' submissions
- Sir Sydney helpfully encapsulated
the appellants' submissions in a series of key propositions, which he
elaborated in written and oral argument. The propositions are these:
(1) Legislation made under the 1911 Act is delegated or
subordinate, not primary.
(2) The legislative power conferred by section 2(1) of
the 1911 Act is not unlimited in scope and must be read according to
established principles of statutory interpretation.
(3) Among these is the principle that powers conferred
on a body by an enabling Act may not be enlarged or modified by that
body unless there are express words authorising such enlargement or
modification.
(4) Accordingly, section 2(1) of the 1911 Act does not
authorise the Commons to remove, attenuate or modify in any respect
any of the conditions on which its law-making power is granted.
(5) Even if, contrary to the appellants' case, the
Court of Appeal was right to regard section 2(1) of the 1911 Act as
wide enough to authorise "modest" amendments of the Commons'
law-making powers, the amendments in the 1949 Act were not "modest",
but substantial and significant.
- Before considering these
submissions it is in my opinion important to describe in outline the
constitutional background and historical context of the 1911 Act. For it
was the product of a constitutional crisis, by some margin the most
acute to afflict this country during the twentieth century. It generated
a degree of political and personal acrimony rarely, if ever, seen
before, and never since, in the life of our parliamentary democracy. The
Act must be interpreted and understood in that context.
The constitutional background and historical context of the 1911
Act
- The bedrock of the British
constitution is, and in 1911 was, the supremacy of the Crown in
Parliament. It is, as Maurice Kay LJ observed in para 3 of his judgment,
unnecessary for present purposes to touch on the difference, if any,
made by our membership of the European Union. Then, as now, the Crown in
Parliament was unconstrained by any entrenched or codified constitution.
It could make or unmake any law it wished. Statutes, formally enacted as
Acts of Parliament, properly interpreted, enjoyed the highest legal
authority. But such Acts required the consent of both Houses, Lords and
Commons: A V Dicey, Introduction to the Study of the Law of the
Constitution, 6th edn (1902), pp 37-38, 350-351. Where such
consent was given, the royal assent to the measure had become a
constitutional formality. Where and so long as one or other House
withheld its consent, the measure could not become an Act of Parliament.
- Save for a relatively small
number of archbishops, bishops, lords of appeal in ordinary and former
lords of appeal in ordinary, the membership of the House of Lords in
1911 was wholly hereditary. The great majority of the members had either
succeeded, or been appointed, to hereditary peerages. They were
predominantly holders of Conservative opinions. Thus it was possible for
the majority in the Lords to block the legislative programme of a
government with which it disagreed. In 1831-1832 the Lords sought, in
the event unsuccessfully, to block what has become known as the Great
Reform Act. In 1893, by a majority of 419-41, it rejected a Home Rule
Bill, the heart of the government's programme, which had been approved
by the Commons. The only means which the constitution provided to ensure
that the will of the elected house prevailed over that of the upper
House where deadlock occurred was by the creation of enough new peers
supportive of the government's measure to carry it in the Lords. Advice
by the Prime Minister to create new peers was advice which a
constitutional monarch was bound, ultimately, to accept. The threat to
create new peers might, in the end, prove enough to secure the Lords'
acquiescence, as it did in 1832. But it was seen as a nuclear option.
- This situation was not regarded
as satisfactory by the Liberal leaders. Mr Gladstone himself did not
favour organic reform of the House of Lords, and wished an hereditary
House to continue for the avoidance of greater evils. But on 19 August
1884, in a paper prepared for Queen Victoria, he observed that
"The House of Lords has for a long period been the habitual and
vigilant enemy of every Liberal government …" (HCG Matthew, The
Gladstone Diaries, vol XI, OUP, 1990, p 193).
- His successors were less
passive. Lord Rosebery, as Prime Minister in October 1894, proposed in a
speech at Bradford to introduce a Commons resolution asserting the
legislative supremacy of the Commons. He wished to reform the
composition of the Lords. He had not, however, consulted his cabinet
colleagues, a majority of whom preferred in principle to abolish rather
than reform the Lords, and saw limitation of the Lords' veto as a more
practical way of clipping their wings. This option was adopted in
November, but no proposal appeared in the Queen's speech in 1895 (L
McKinstry, Rosebery (2005), pp 327-332; Davis, 'Primrose,
Archibald Philip, fifth earl of Rosebery', Oxford Dictionary of
National Biography, 2004). Sir Henry Campbell-Bannerman, Rosebery's
successor as Liberal leader, had advised the Queen in 1894 that one day
the Lords' behaviour would inevitably lead to deadlock and
constitutional chaos. But in 1907, as Prime Minister, he rejected a
proposal from a cabinet committee to reform the composition of the
Lords. Instead, recognising the need to resolve relations between the
two Houses, he persuaded the Commons on 26 June 1907 to accept, by a
large majority, a resolution that:
"in order to give effect to the will of the people as expressed by
their elected representatives, it is necessary that the power of the
other House to alter or reject Bills passed by this House should be so
restricted by Law as to secure that within the limits of a single
Parliament the final decision of the Commons shall prevail." (House of
Commons Journal, 26 June 1907).
- Sir Henry Campbell-Bannerman had
become Prime Minister on the resignation of Mr Balfour, in December
1905. A general election followed in January 1906, which the Liberal
party won with a landslide majority. But a Bill introduced to reform
education was "amended out of recognition" (G R Searle, A New England
- Peace and War 1886 - 1918, OUP (2004), p 362) by the House of
Lords and had to be dropped. The Licensing Bill 1908 was rejected. In
all, ten Liberal Bills sent to the Lords between 1906 and 1909 were
rejected or wrecked (Searle, op cit, p 409). Among these was the
1909 Finance Bill, introduced by Mr Lloyd George, which was passed by
the Commons on 4 November 1909 by 379 votes to 149, but which, at the
end of the month, the Lords rejected by 350 votes to 75. There had been
no precedent for such a course for 150 years or perhaps longer (Searle,
op cit, p 411; Ensor, England 1870-1914, (1936) p 416),
since the voting of supply had come to be recognised as the all but
exclusive preserve of the Commons. This was reflected in the enacting
words of such measures, which departed from the wording found in other
Acts and were (as in a modified form they still are) prefaced by
language such as
"We, Your Majesty's most dutiful and loyal subjects the Commons of
the United Kingdom of Great Britain and Ireland in Parliament
assembled, towards raising the necessary supplies to defray Your
Majesty's public expenses, and making an addition to the public
revenue, have freely and voluntarily [in former versions "cheerfully"]
resolved to give and grant unto Your Majesty the several duties
herein-after mentioned; and do therefore most humbly beseech Your
Majesty that it may be enacted, and be it enacted …"
In modern times the same distinction has been consistently recognised
in the speech of the monarch on opening a new session of Parliament.
This rejection was described by Mr Asquith, now the Prime Minister, as
"a breach of the Constitution and a usurpation of the rights of the
Commons". A general election followed in January 1910. The issue on the
platforms was the Lords' veto.
- That election gave the Liberals
a majority of only 2 over the Conservatives in the House of Commons. But
the Liberals enjoyed the general support of 40 Labour and 82 Irish
nationalist members. These three parties were united on two issues: they
wanted to deal with the House of Lords on Campbell-Bannerman lines, not
by altering its composition but by defining and limiting its power of
veto; and they wanted to give Home Rule to Ireland (Ensor, op cit,
p 418; Searle, op cit, p 417).
- On 29 March 1910 the government
introduced three resolutions to the House of Commons. After extensive
debate, these resolutions were approved by the House by large majorities
on 14 April 1910. The first of these resolutions began:
"That it is expedient that the House of Lords be disabled by Law
from rejecting or amending a Money Bill, but that any such limitation
by Law shall not be taken to diminish or qualify the existing rights
and privileges of the House of Commons."
The resolution went on to define the meaning of "Money Bill." The
second resolution began:
"That it is expedient that the powers of the House of Lords, as
respects Bills other than Money Bills, be restricted by Law, so that
any such Bill which has passed the House of Commons in three
successive Sessions and, having been sent up to the House of Lords at
least one month before the end of the Session, has been rejected by
that House in each of those Sessions, shall become Law without the
consent of the House of Lords on the Royal Assent being declared:
Provided that at least two years shall have elapsed between the date
of the first introduction of the Bill in the House of Commons and the
date on which it passes the House of Commons for the third time."
The resolution went on to define what amounted to rejection. In the
course of debate it was sought to amend this second resolution by
inserting, after "as respects Bills other than", the words "Bills
further affecting the constitution or powers of the House of Lords and";
"Bills affecting the duration of Parliament and"; "Bills affecting the
prerogative, rights and powers of the Crown and"; and "Bills for the
delegation of administration or legislative powers to subordinate
Parliaments within the United Kingdom and". All these amendments were
rejected by large majorities. The third resolution was
"That it is expedient to limit the duration of Parliament to five
years."
On the acceptance of the three resolutions, a Parliament Bill was
introduced, but it was not voted upon.
- Meanwhile, in the House of
Lords, Lord Rosebery had in March 1910 secured acceptance of a proposal
to change the composition of the House, a cause he had espoused for many
years and which he pursued further in November 1910. He was not alone
among leading Liberals in favouring this course. It was one favoured by
the Foreign Secretary, Sir Edward Grey, and the second recital to the
1911 Act, quoted above, was included to meet his wishes. The
introduction of the Bill was followed by reintroduction of the Finance
Bill rejected by the House of Lords. It was carried by a large majority
in the Commons and was accepted by the Lords without a division on the
following day. It used the introductory language quoted in para 13
above, and is cited as the Finance (1909-10) Act 1910.
- Following the death of King
Edward VII in May 1910, a Conference was held, in private, between four
leading members of each of the Liberal and Conservative parties.
Tentative agreement was reached on the future handling of money bills,
and also "that other bills might be rejected by the second chamber, but
that, if one was rejected two years running, a joint sitting of the two
Houses should be held to determine its fate; and lastly that the
representation for the Lords in the joint sitting should be so scaled
down that a liberal government with a Commons majority of fifty would be
able to pass its bills" (Ensor, op cit, p 423). The
Conservatives, however, concerned above all to block Home Rule, wished
to except from the joint-sitting scheme certain bills or classes of
bills variously described as "constitutional", "organic" or
"structural", which were to be the subject of a referendum. The Liberals
were willing to except bills affecting the Crown or the Protestant
succession or "the Act which is to embody this agreement", but would go
no further, and in particular would not except any bill providing for
Irish Home Rule (ibid; Searle, op cit, pp 418-419). On
this the Conference broke down.
- On 18 November 1910, following
the breakdown of the Conference, the government announced its intention
to seek the dissolution of Parliament on 28 November. The pause was to
give the House of Lords time to consider the Parliament Bill, which it
did. The first and second readings took place. At that point the
Conservative leader (Lord Lansdowne) proposed, and the House of Lords
adopted, resolutions based on the proposals made at the Conference.
Parliament was then dissolved, and a further general election took place
in December. Unsurprisingly, given that the issues had not changed, the
outcome of the election was almost exactly the same as in the preceding
January: an equality of Liberal and Conservative seats, but a small
increase for Labour and the Irish nationalists, giving a slight increase
in the majority for the Parliament Bill and Home Rule.
- The Parliament Bill was again
introduced in the House of Commons by the Prime Minister on 21 February
1911. It was approved by a large majority on each of its three readings,
the third of these on 15 May 1911. On 23 May it reached the House of
Lords, which had meanwhile been considering alternative proposals. The
Bill was debated at length in the Lords, and was very heavily amended
before its return to the Commons. But by this time, if not before, the
Conservative leaders knew of the King's willingness, if need be, to
create enough peers to secure passage of the Bill and of the
government's determination to secure passage of the Bill by that means
if no other way was open. In the Commons, the Lords' amendments were
almost all rejected. On its return to the Lords, with a threat that
rejection must be followed by "a large and prompt creation of peers",
the Bill was passed by the Lords on 10 August and the royal assent was
given, with the consent of both Houses, eight days later.
- It is not necessary to examine
in any detail the passage of the Bill through Parliament. Two points
are, however, noteworthy. First, the clause of the Bill which became
section 2(1) of the Act had at first made reference only to "any Public
Bill other than a Money Bill". The Lords amended this to read "other
than a Money Bill or a Bill containing any provisions to extend the
maximum duration of Parliament beyond five years". On 8 August 1911,
just before the final return of the Bill to the Lords, the Commons
accepted this amendment. Secondly, during the passage of the Bill
through Parliament a number of attempts were made (as they had been in
the earlier debates on the resolutions) to insert words after "other
than a Money Bill": "or a Bill to establish a separate Parliament and
Executive for Ireland" (rejected 24 April 1911, HC Hansard col 1434);
"or a Bill affecting the continued existence or the prerogative rights,
and powers of the Crown" (rejected 24 April 1911, HC Hansard col 1466);
"or Bill for modifying this Act" (rejected 24 April 1911, HC Hansard,
col 1498); "or a Bill which contains any provision affecting the
qualification for the exercise of the parliamentary franchise or
affecting the right to vote at any parliamentary election" (rejected 24
April 1911, HC Hansard col 1504); "or a Bill which contains any
provision which affects the Constitution of the House of Lords"
(rejected 24 April 1911, col 1516); "or a Bill affecting the
establishment of the Church of England or the temporalities thereof, or
the Church of Scotland and the temporalities thereof" (rejected 24 April
1911, HC Hansard col 1538); "or a Bill affecting the independence of the
judiciary or restricting the rights of the subject to trial by jury or
appeal to a higher court" (rejected 24 April 1911, HC Hansard col 1548);
"is passed with a majority of at least one hundred" (rejected 25 April
1911, HC Hansard col 1634). None of these amendments was acceptable to
the majority in the Commons.
- I can now return to the
appellants' propositions summarised in para 7 above, which I shall
consider in turn.
(1) The status of legislation passed under the 1911
Act
- Sir Sydney submits that whereas
legislation duly enacted by the Crown in Parliament commands general
obedience and recognition as such, and is the ultimate political fact
upon which the whole system of legislation hangs, legislation made under
the 1911 Act is required to state on its face that it is made by the
authority of the 1911 Act. Such legislation is not primary because it
depends for its validity on a prior enactment, and legislation is not
primary where that is so. Legislation under the 1911 Act is not similar
to other delegated or subordinate legislation, such as statutory
instruments and bylaws made under the authority of statute, but it is
delegated or subordinate or derivative in the sense that its validity is
open to investigation in the courts, which would not be permissible in
the case of primary legislation. For this submission, necessarily
abbreviated in summary, Sir Sydney cites an impressive range of
authority including HLA Hart, The Concept of Law (Oxford, 1961),
chaps 5-6; Craies on Legislation, 8th edn (2004), para 1.2.1;
Bennion, Statutory Interpretation, 4th edn (2002), section 50; H
W R Wade, Constitutional Fundamentals (1980), pp 27-28 and "The
Basis of Legal Sovereignty" [1955] CLJ 172, 193-194; Wade and Forsyth,
Administrative Law, 9th edn (2004), pp 26-27; Hood Phillips and
Jackson, Constitutional and Administrative Law (8th edn, 2001),
pp 79-80; Lord Donaldson of Lymington, formerly Master of the Rolls (HL
Hansard, 19 January 2001, col 1309); and Pickin v British Railways
Board [1974] AC 765.
- The Divisional Court rejected
this argument for reasons very clearly and succinctly given by Maurice
Kay LJ (paras 23-25 of his judgment) and Collins J (paras 39-45). The
Court of Appeal, in part at least, accepted it (paras 30-48).
- Despite the skill with which the
argument is advanced and the respect properly due to the authorities
relied on, I am of opinion that the Divisional Court was right to reject
it, for two main reasons. First, sections 1(1) and 2(1) of the 1911 Act
provide that legislation made in accordance with those provisions
respectively shall "become an Act of Parliament on the Royal Assent
being signified". The meaning of the expression "Act of Parliament" is
not doubtful, ambiguous or obscure. It is as clear and well understood
as any expression in the lexicon of the law. It is used, and used only,
to denote primary legislation. If there were room for doubt, which to my
mind there is not, it would be resolved by comparing the language of the
second resolution, quoted in para 15 above, with the language of section
2(1) as enacted. The resolution provided that a measure meeting the
specified conditions "shall become Law without the consent of the House
of Lords on the Royal Assent being declared". Section 2(1), as just
noted, provides that a measure shall become an Act of Parliament. The
change can only have been made to preclude just such an argument as the
appellants are advancing. The 1911 Act did, of course, effect an
important constitutional change, but the change lay not in authorising a
new form of sub-primary parliamentary legislation but in creating a new
way of enacting primary legislation.
- I cannot, secondly, accept that
the 1911 Act can be understood as a delegation of legislative power or
authority by the House of Lords, or by Parliament, to the House of
Commons. The implausibility of this interpretation can perhaps be most
readily seen in relation to money bills. As noted in para 13, the Lords'
rejection of the Finance Bill was a departure from convention and
precedent because supply had come to be recognised as the all but
exclusive preserve of the Commons. Section 1 of the 1911 Act involved no
delegation of legislative power and authority to the Commons but a
statutory recognition of where such power and authority in relation to
supply had long been understood to lie. It would be hard to read the
very similar language in section 2 as involving a delegation either,
since the overall object of the Act was not to enlarge the powers of the
Commons but to restrict those of the Lords. This is, in my opinion,
clear from the historical context and from the Act itself. The first
resolution (see para 15 above) was that "it is expedient that the House
of Lords be disabled by Law from …" The second resolution (para 15
above) was that "it is expedient that the powers of the House of Lords,
as respects Bills other than Money Bills, be restricted by Law …" The
effect of section 1 of the 1911 Act is to restrict the power of the
Lords to amend or reject money bills. The effect of section 2(1) is,
despite the different conditions, the same, and is aptly summarised in
the sidenote: "Restriction of the powers of the House of Lords as to
Bills other than Money Bills". The certification of a money bill by the
Speaker under section 1 and of a bill other than a money bill under
section 2 is mandatory, and the presentation of a bill to the monarch
for the royal assent to be signified under sections 1(1) and 2(1) is
automatic, "unless the House of Commons direct to the contrary". If it
be permissible to resort to the preamble of the 1911 Act, one finds
reference to the expediency of making "such provision as in this Act
appears for restricting the existing powers of the House of Lords". The
overall object of the 1911 Act was not to delegate power: it was to
restrict, subject to compliance with the specified statutory conditions,
the power of the Lords to defeat measures supported by a majority of the
Commons, and thereby obviate the need for the monarch to create (or for
any threat to be made that the monarch would create) peers to carry the
government's programme in the Lords. This was a procedure necessarily
unwelcome to a constitutional monarch, rightly anxious to avoid any
appearance of participation in politics, and one which
constitutionally-minded politicians were accordingly reluctant to
invoke.
- It is true, as the appellants
point out, that section 4 of the 1911 Act requires the words of
enactment of a Bill presented to the monarch under section 1 or section
2 of the Act, to record that the measure is enacted "in accordance with
the Parliament Act 1911, and by authority of the same", and reference is
now added to the 1949 Act also. But the inclusion of these words does
not in my opinion mean that measures so enacted should be regarded as
delegated or subordinate. The standard words of enactment make reference
to the Lords Spiritual and Temporal and Commons and provide for the
measure to be enacted "by the authority of the same". This language is
plainly inappropriate where the Lords have not consented, and it is
unsurprising that reference is instead made to the measure which makes
it lawful to enact a measure in the absence of such consent. I do not
think this reference can support the weight of argument the appellants
seek to build on it.
- Like the Court of Appeal (see
paras 11-13 of its judgment), I feel some sense of strangeness at the
exercise which the courts have (with the acquiescence of the Attorney
General) been invited to undertake in these proceedings. The authority
of Pickin v British Railways Board [1974] AC 765
is unquestioned, and it was there very clearly decided that "the courts
in this country have no power to declare enacted law to be invalid" (per
Lord Simon of Glaisdale at p 798). I am, however, persuaded that the
present proceedings are legitimate, for two reasons. First, in
Pickin, unlike the present case, it was sought to investigate the
internal workings and procedures of Parliament to demonstrate that it
had been misled and so had proceeded on a false basis. This was held to
be illegitimate: see Lord Reid at p 787, Lord Morris of Borth-y-Gest at
p 790, Lord Wilberforce at p 796, Lord Simon of Glaisdale at p 800 and
Lord Cross of Chelsea at p 802. Lord Reid quoted with approval a passage
of Lord Campbell's opinion in Edinburgh and Dalkeith Railway Co v
Wauchope (1842) 8 Cl & F 710, 725, where he said:
"All that a Court of Justice can do is to look to the
Parliamentary roll: if from that it should appear that a bill has
passed both Houses and received the Royal assent, no Court of Justice
can inquire into the mode in which it was introduced into Parliament,
nor into what was done previous to its introduction, or what passed in
Parliament during its various stages through both Houses".
Here, the court looks to the parliamentary roll and sees bills (the
1949 Act, and then the 2004 Act) which have not passed both Houses. The
issue concerns no question of parliamentary procedure such as would, and
could only, be the subject of parliamentary inquiry, but a question
whether, in Lord Simon's language, these Acts are "enacted law". My
second reason is more practical. The appellants have raised a question
of law which cannot, as such, be resolved by Parliament. But it would
not be satisfactory, or consistent with the rule of law, if it could not
be resolved at all. So it seems to me necessary that the courts should
resolve it, and that to do so involves no breach of constitutional
propriety.
(2) The scope of section 2(1)
- Sir Sydney submits that, in
accordance with long-established principles of statutory interpretation,
the courts will often imply qualifications into the literal meaning of
wide and general words in order to prevent them having some unreasonable
consequence which Parliament could not have intended. He cites such
compelling authority as Stradling v Morgan (1560) 1 Plow 199;
R (Edison First Power Limited) v Central Valuation Officer [2003] UKHL 20, [2003] 4 All ER 209, para 25; R v Secretary of State for the Home
Department, Ex p Pierson [1998] AC 539, 573-575, 588; R v Secretary of State for the Home
Department, Ex p Simms [2000] 2 AC 115, 131; and R (Morgan Grenfell & Co Ltd) v Special
Commissioner of Income Tax [2003] 1 AC 563, paras 8, 44-45. He relies on these authorities as
establishing (as it is put in the appellants' printed case)
"that general words such as section 2(1) should not be read as
authorising the doing of acts which adversely affect the basic
principles on which the law of the United Kingdom is based in the
absence of clear words authorising such acts. There is no more
fundamental principle of law in the UK than the identity of the
sovereign body. Section 2(1) should not be read as modifying the
identity of the sovereign body unless its language admits of no other
interpretation".
The Divisional Court did not accept that the 1911 Act, properly
construed, precluded use of the procedure laid down in that Act to amend
the conditions specified in section 2: see Maurice Kay LJ in paras 17-19
of his judgment, and Collins J in paras 41-44 of his. The Court of
Appeal took a different view (paras 40-41); it concluded that section
2(1) conferred powers which could be used for some purposes but not
others (paras 42-45).
- The Attorney General does not, I
think, take issue with the general principles relied on by the
appellants, which are indeed familiar and well-established. But he
invites the House to focus on the language of the 1911 Act, and in this
he is right, since a careful study of the statutory language, read in
its statutory and historical context and with the benefit of permissible
aids to interpretation, is the essential first step in any exercise of
statutory interpretation. Here, section 2(1) makes provision, subject to
three exceptions, for any public bill which satisfies the specified
conditions to become an Act of Parliament without the consent of the
Lords. The first exception relates to money bills, which are the subject
of section 1 and to which different conditions apply. The second relates
to bills containing any provision to extend the maximum duration of
Parliament beyond five years. I consider this exception in detail below.
The third relates to bills for confirming a provisional order, which do
not fall within the expression "public bill" by virtue of section 5.
Subject to these exceptions, section 2(1) applies to "any" public bill.
I cannot think of any broader expression the draftsman could have used.
Nor can I see any reason to infer that "any" is used in a sense other
than its colloquial, and also its dictionary, sense of "no matter which,
or what". The expression is repeatedly used in this sense in the 1911
Act, and it would be surprising if it were used in any other sense: see
section 1(2) ("any of the following subjects", "any such charges", "any
loan", "those subjects or any of them", "any taxation, money, or loan");
section 2(4) ("any amendments", "any further amendments", "any such
suggested amendments"); section 3 ("Any certificate", "any court of
law"); section 4(2) ("Any alteration"); section 5 ("any Bill"). "Any" is
an expression used to indicate that the user does not intend to
discriminate, or does not intend to discriminate save to such extent as
is indicated.
- Sir Sydney is of course correct
in submitting that the literal meaning of even a very familiar
expression may have to be rejected if it leads to an interpretation or
consequence which Parliament could not have intended. But in this case
it is clear from the historical background that Parliament did intend
the word "any", subject to the noted exceptions, to mean exactly what it
said. Sir Henry Campbell-Bannerman's resolution of June 1907, adopted by
the Commons before rejection of the 1909 Finance Bill, referred quite
generally to "Bills passed by this House" (para 12 above). The second of
the resolutions adopted on 14 April 1910 (para 15 above) referred to
"Bills other than Money Bills". Attempts to amend the resolution so as
to enlarge the classes of bill to which the new procedure would not
apply were all rejected (para 15 above). During the constitutional
Conference which followed the death of the King there was provisional
agreement to exclude "the Act which is to embody this agreement" from
application of the new procedure, but such a provision was never
included in the Bill (para 17 above). During the passage of the Bill
through Parliament, there were again repeated attempts to enlarge the
classes of bill to which the new procedure would not apply, but save for
the amendment related to bills extending the maximum duration of
Parliament they were uniformly rejected (para 20 above). The suggestion
that Parliament intended the conditions laid down in section 2(1) to be
incapable of amendment by use of the Act is in my opinion contradicted
both by the language of the section and by the historical record. This
was certainly the understanding of Dicey, who was no friend of the 1911
Act. In the first edition of his Introduction after 1911 (the 8th
edition, 1915), he wrote at p xxiii:
"The simple truth is that the Parliament Act has given to the
House of Commons, or, in plain language, to the majority thereof, the
power of passing any Bill whatever, provided always that the
conditions of the Parliament Act, section 2, are complied with."
- The Court of Appeal concluded
(in paras 98-100 of its judgment) that there was power under the 1911
Act to make a "relatively modest and straightforward amendment" of the
Act, including the amendment made by the 1949 Act, but not to making
"changes of a fundamentally different nature to the relationship between
the House of Lords and the Commons from those which the 1911 Act had
made". This was not, as I understand, a solution which any party
advocated in the Court of Appeal, and none supported it in the House. I
do not think, with respect, that it can be supported in principle. The
known object of the Parliament Bill, strongly resisted by the
Conservative party and the source of the bitterness and intransigence
which characterised the struggle over the Bill, was to secure the grant
of Home Rule to Ireland. This was, by any standards, a fundamental
constitutional change. So was the disestablishment of the Anglican
Church in Wales, also well known to be an objective of the government.
Attempts to ensure that the 1911 Act could not be used to achieve these
objects were repeatedly made and repeatedly defeated (paras 15 and 20
above). Whatever its practical merits, the Court of Appeal solution
finds no support in the language of the Act, in principle or in the
historical record. Had the government been willing to exclude changes of
major constitutional significance from the operation of the new
legislative scheme, it may very well be that the constitutional
Conference of 1910 would not have broken down and the 1911 Act would
never have been enacted.
- It is unnecessary for resolution
of the present case to decide whether the 1911 (and now the 1949) Act
could be relied on to extend the maximum duration of Parliament beyond
five years. It does not seem likely that such a proposal would command
popular and parliamentary support (save in a national emergency such as
led to extensions, by consent of both Houses, during both world wars),
knowledge of parliamentary tyranny during the Long Parliament would
weigh against such a proposal and article 3 of the First Protocol to the
European Convention on Human Rights now requires elections at reasonable
intervals. The Attorney General, however, submits that the 1911, and now
the 1949, Act could in principle be used to amend or delete the
reference to the maximum duration of Parliament in the parenthesis to
section 2(1), and that a further measure could then be introduced to
extend the maximum duration. Sir Sydney contends that this is a
procedure which section 2(1) very clearly does not permit, stressing
that the timetable in section 2(1) was very closely linked to the
maximum duration of Parliament which the Act laid down. It is common
ground that section 2(1) in its unamended form cannot without more be
relied on to extend the maximum duration of Parliament, because a public
bill to do so is outside the express terms of section 2(1). But there is
nothing in the 1911 Act to provide that it cannot be amended, and even
if there were such a provision it could not bind a successor Parliament.
Once it is accepted, as I have accepted, that an Act passed pursuant to
the procedures in section 2(1), as amended in 1949, is in every sense an
Act of Parliament having effect and entitled to recognition as such, I
see no basis in the language of section 2(1) or in principle for holding
that the parenthesis in that subsection, or for that matter section 7,
are unamendable save with the consent of the Lords. It cannot have been
contemplated that if, however improbably, the Houses found themselves in
irreconcilable deadlock on this point, the government should have to
resort to the creation of peers. However academic the point may be, I
think the Attorney General is right.
(3) Enlargement of powers
- Sir Sydney relies on what Hood
Phillips and Jackson describe as the general principle of logic and law
that delegates (the Queen and Commons) cannot enlarge the authority
delegated to them: Constitutional and Administrative Law, 8th edn
(2001), p 80. He also prays in aid the observations of Lord Donaldson of
Lymington speaking extra-judicially in support of his Parliament Acts
(Amendment) Bill (HL Hansard, 19 January 2001, cols 1308-1309):
"As your Lordships well know, it is a fundamental tenet of
constitutional law that, prima facie, where the
sovereign Parliament - that is to say, the Monarch acting on the
advice and with the consent of both Houses of Parliament - delegates
power to legislate, whether to one House unilaterally, to the King or
Queen in Council, to a Minister or to whomsoever, the delegate cannot
use that power to enlarge or vary the powers delegated to him. The
only exception is where the primary legislation, in this case the 1911
Act, expressly authorises the delegate to do so. In other words there
has to be a Henry VIII clause."
To support his argument Sir Sydney cites a number of cases relating
to colonial and Dominion legislatures, the most significant of these
cases perhaps being R v Burah (1878) 3 App Cas 889, 904-905;
Taylor v Attorney General of Queensland (1917) 23 CLR 457;
McCawley v The King [1920] AC 691, 703-704, 710-711; Minister
of the Interior v Harris 1952 (4) SA 769, 790; Clayton v
Heffron (1960) 105 CLR 214 and Bribery Commissioner v
Ranasinghe [1965] AC 172, 196-198. In written submissions in reply this argument was
elaborated and the authorities further analysed.
- The Divisional Court was not
persuaded by this line of argument. Maurice Kay LJ, with whom Collins J
agreed, said in para 27 of his judgment:
"Moreover, the whole line of authority relied upon by the
claimants, dealing as it does with the relationship between the
Westminster Parliament and the devolved legislatures of former
colonies with (in Lord Birkenhead's phrase - McCawley, p 703)
"controlled constitutions", is not strictly analogous to the context
of the Parliament Acts. In my judgment there is no established
principle applicable to this case which denies a power of amendment of
the earlier statute in the absence of the express conferral of one
specifically dealing with amendment. What is important is the language
of the earlier statute. I do not doubt that it is sufficient to permit
amendment in the manner that was achieved by the 1949 Act."
- The Court of Appeal (para 62)
regarded this approach as being an over-simplification, but reached the
same conclusion. It accepted (para 66) the Attorney General's submission
that, although in many instances the relevant legislation discussed in
the cases contained an express power to make amendments to the
constitution, the authorities did not establish a principle that such
constitutions may not be appropriately amended without such an express
power. It found (para 68) no constitutional principle or principle of
statutory construction which prevents a legislature from altering its
own constitution by enacting alterations to the very instrument from
which its powers derive by virtue of powers in that same instrument if
the powers, properly understood, extend that far. The Court of Appeal
adopted (para 69) the opinion of Lord Pearce on behalf of the Privy
Council in Bribery Commissioner v Ranasinghe, above, at p 198,
where he held that a constitution can be altered or amended by the
legislature
"if the regulating instrument so provides and if the terms of
those provisions are complied with: and the alteration or amendment
may include the change or abolition of those very provisions."
The question was one of construction (para 69), and the Court of
Appeal did not detect anything in the language of section 2(1) which
would prevent the amendment made by the 1949 Act.
- I cannot accept the appellants'
submissions on this issue, for three main reasons. First, for reasons
given in para 25 above, the 1911 Act did not involve a delegation of
power and the Commons, when invoking the 1911 Act, cannot be regarded as
in any sense a subordinate body. Secondly, the historical context of the
1911 Act was unique. The situation was factually and constitutionally so
remote from the grant of legislative authority to a colonial or Dominion
legislature as to render analogies drawn from the latter situation of
little if any value when considering the former. Thirdly, the Court of
Appeal distilled from the authorities what is in my judgment the correct
principle. The question is one of construction. There was nothing in the
1911 Act to preclude use of the procedure laid down by the Act to amend
the Act. As explained in paras 29-32 above, the language of the Act was
wide enough, as the Divisional Court and the Court of Appeal held, to
permit the amendment made by the 1949 Act, and also (in my opinion) to
make much more far-reaching changes. For the past half century it has
been generally, even if not universally, believed that the 1949 Act had
been validly enacted, as evidenced by the use made of it by governments
of different political persuasions. In my opinion that belief was
well-founded.
(4) The scope of the power to amend the conditions to
which section 2(1) is subject
- This submission is in essence a
conclusion drawn from the propositions which precede it: see the summary
in para 7 above. It necessarily follows from the reasons I have given
for rejecting those propositions that I cannot accept that section 2(1)
of the 1911 Act "does not authorise the Commons to remove, attenuate or
modify in any respect any of the conditions on which its law-making
power is granted". As should be clear, I reject the premises on which
that conclusion is founded. If the appellants were right, it would, I
think, follow that the 1911 Act could not be invoked, for instance, to
shorten (or even, perhaps, lengthen) the period allowed in section 1(1)
for passing money bills, or to provide that a bill for confirming a
provisional order should rank as a public bill: a government bent on
achieving such an object with a clear and recent mandate to do so would
have either to accept the veto of the Lords or resort to the creation of
peers. That would seem an extravagant, and unhistorical, intention to
attribute to Parliament.
(5) The significance of the 1949 Act
- I agree with the appellants that
the change made by the 1949 Act was not, as the Court of Appeal
described it (para 98), "relatively modest", but was substantial and
significant. But I also agree with them and also the Attorney General
that the breadth of the power to amend the 1911 Act in reliance on
section 2(1) cannot depend on whether the amendment in question is or is
not relatively modest. I have given my reasons for sharing that
conclusion in paras 29-32 above. Such a test would be vague in the
extreme, and impose on the Speaker a judgment which Parliament cannot
have contemplated imposing.
Conclusion
- I would dismiss this appeal for
the reasons I have given. The 1949 Act and the 2004 Act are Acts of
Parliament of full legal effect. In so concluding I take no account of
any challenge under the Human Rights Act 1998 to the compatibility of
the 2004 Act with the European Convention on Human Rights. That is not
before the House. I would invite the parties to make written submissions
on costs within 14 days.
- I have reached my conclusion
without reliance on statements made in the course of parliamentary
debate on the 1911 or the 1949 Act. Were the language of the 1911 Act
ambiguous or obscure it would have been necessary to decide, in the
light of Pepper v Hart [1993] AC 593
and later authority, whether resort to Hansard would be permissible. In
the event, I do not find the language of the 1911 Act to be ambiguous or
obscure. It is similarly unnecessary to consider what, if any, legal
effect flows from parliamentary approbation of the 1949 Act, as
evidenced by amendment and consolidation of Acts passed under it.
- It has been a source of concern
to some constitutionalists (among them the late Lord Scarman) that the
effect of the 1911, and more particularly the 1949, Act has been to
erode the checks and balances inherent in the British constitution when
Crown, Lords and Commons were independent and substantial bases of
power, leaving the Commons, dominated by the executive, as the
ultimately unconstrained power in the state. There is nothing novel in
this perception. What, perhaps, is novel is the willingness of
successive governments of different political colours to invoke the 1949
Act not for the major constitutional purposes for which the 1911 Act was
invoked (the Government of Ireland Act 1914, the Welsh Church Act 1914,
the 1949 Act) but to achieve objects of more minor or no constitutional
import (the War Crimes Act 1991, the European Parliamentary Elections
Act 1999, the Sexual Offences (Amendment) Act 2000 and now the 2004
Act). There are issues here which merit serious and objective thought
and study. But it would be quite inappropriate for the House in its
judicial capacity to express or appear to express any opinion upon them,
and I do not do so.
LORD NICHOLLS OF BIRKENHEAD
My Lords,
- The Hunting Act 2004 banned
hunting foxes with dogs. It was enacted amidst fierce controversy. The
Bill aroused strong feelings, both for and against. Thousands marched
through the streets of London in protest. The House of Commons and the
House of Lords could not see eye to eye. Neither would give way. So the
Commons pushed through the Hunting Bill without the consent of the
Lords, by resort to the procedure prescribed by the Parliament Act 1911
as amended by the Parliament Act 1949.
- Opposition to the new law did
not stop there. Political opposition was followed by legal challenge.
The Hunting Bill received the royal assent on 18 November 2004. On the
following day the claimants started these judicial review proceedings.
Other proceedings were also started.
- In the present proceedings the
legal challenge is not based on the content of the new Act. The
challenge is to the validity of the parliamentary procedure by which the
Act reached the statute book. This procedure appeared from the words of
enactment. The words of enactment, set out on the face of the Act,
lacked the customary reference to enactment by the Sovereign 'by and
with the advice and consent of the Lords Spiritual and Temporal and
Commons'. Instead the Hunting Act 2004 was made by the 'Queen's most
Excellent Majesty by and with the advice and consent of the Commons in
accordance with the provisions of the Parliament Acts 1911 and 1949'.
There was no mention of the advice or consent of the Lords, either
Spiritual or Temporal.
- The first claimant, Mr John
Jackson, is the chairman of the Countryside Alliance, an organisation
which campaigns on hunting with dogs and other rural issues. He brings
these proceedings in his personal capacity. The second claimant, Mr
Patrick Martin, is a professional huntsman employed by the Bicester
Hunt. The third claimant, Mrs Harriet Hughes, works with her husband and
son in a family farriery business. The claimants seek a decision that
the Parliament Act 1949 was invalid and ineffective to amend the
provisions of the Parliament Act 1911 and that, consequently, the
Hunting Act 2004, which was enacted in accordance with the 1911 Act as
amended by the 1949 Act, is invalid.
The issue in this case
- The central issue of law raised
by this appeal is a question of interpretation of section 2 of the
Parliament Act 1911. The issue can be identified quite shortly, although
the parties' submissions ranged widely. The 1911 Act, section 2,
prescribed circumstances where in future a Bill could become law without
the consent of the House of Lords. In future, with stated exceptions,
the approval of the House of Lords to a public Bill could be dispensed
with if the Bill was passed by the Commons but rejected by the Lords in
three successive sessions, two years having elapsed between the date of
the second reading in the Commons in the first of those sessions and the
date when the Bill passed the Commons in the third. In other words, the
Lords could hold up legislation for three sessions spread over a minimum
period of two years from the effective introduction of a Bill. The 1911
Act was enacted with the consent of both Houses.
- In 1949 the Parliament Act of
that year reduced from three to two the number of sessions in which a
Bill had to pass the Commons and from two to one the number of years
which had to elapse. But, unlike the 1911 Act, the 1949 Act was not
passed by both Lords and Commons. Instead the 1949 Act was passed by the
Commons alone and enacted in reliance on the procedure set in place by
section 2 of the 1911 Act.
- In these proceedings the
claimants challenge the lawfulness of the use of the 1911 Act procedure
for this purpose. The effect of the 1911 Act was to restrict the power
of the House of Lords and, correspondingly, to increase in practice the
power of the House of Commons. This enlarged power of the Commons, it is
said, did not enable the Commons to enlarge its own power still more by
further restricting the delaying power of the Lords. A power given in
limited terms cannot be used to enlarge itself. The 1911 Act contained
no provision enabling this to be done. Further restriction on the power
of the Lords required their consent. Unilateral extension of the powers
of the Commons was outside the scope of section 2 of the 1911 Act.
Otherwise the limitations set in place by the 1911 Act would be legally
meaningless. Such a unilateral extension was no more within the legal
power of the Commons than an individual is able to elevate himself by
tugging on his own bootstraps.
The jurisdiction of the courts
- Before considering this issue of
interpretation I must first say something about the jurisdiction of the
court to entertain these proceedings at all. These proceedings are
highly unusual. At first sight a challenge in court to the validity of a
statute seems to offend the fundamental constitutional principle that
courts will not look behind an Act of Parliament and investigate the
process by which it was enacted. Those are matters for Parliament, not
the courts. It is for each House to judge the lawfulness of its own
proceedings. The authorities establishing this principle can be found
gathered in Pickin v British Railways Board [1974] AC 765. This principle is a reflection of article 9 of the Bill of
Rights 1689: '… proceedings in Parliament ought not to be impeached or
questioned in any court'.
- In accordance with this
principle it would not be open to a court to investigate the conduct of
the proceedings in Parliament on the Bill for the 1949 Act to see
whether they complied with section 2 of the 1911 Act. Indeed, the 1911
Act makes express provision to this effect. Section 2(2) provides for
the Speaker to endorse on a Bill presented to His Majesty for assent
pursuant to section 2 a certificate signed by him that the provisions of
the section have been duly complied with. Section 3 provides this
certificate shall be conclusive 'for all purposes' and 'shall not be
questioned in any court of law'.
- In the present case the
claimants do not dispute this constitutional principle. Nor do they seek
to gainsay the conclusiveness of the certificate endorsed by the Speaker
on the Bill for the Parliament Act 1949 as required by section 2(2) of
the 1911 Act. Their challenge to the lawfulness of the 1949 Act is
founded on a different and prior ground: the proper interpretation of
section 2(1) of the 1911 Act. On this issue the court's jurisdiction
cannot be doubted. This question of statutory interpretation is properly
cognisable by a court of law even though it relates to the legislative
process. Statutes create law. The proper interpretation of a statute is
a matter for the courts, not Parliament. This principle is as
fundamental in this country's constitution as the principle that
Parliament has exclusive cognisance (jurisdiction) over its own affairs.
The Parliament Act 1911
- For centuries the unwritten
constitution of this country had at its heart the principle that
legislation requires the concurrence of the Sovereign, the House of
Lords and the House of Commons. As every student of modern history
knows, early in the 20th century the political imbalance in the
composition of these two chambers of Parliament gave rise to a prolonged
constitutional crisis. The legislative programme of successive Liberal
governments was thwarted time and again by sustained opposition from the
Conservative and Unionist dominated House of Lords. The Lords rejected
items as important as Gladstone's Irish 'Home Rule' Bill in 1893.
Matters came to a head with the rejection of Lloyd George's Finance Bill
('the peoples' budget') of 1909. A government cannot govern without the
supply of money.
- The crisis was resolved
eventually by the Parliament Act 1911. This Act was passed by the House
of Lords under overt threat from the government to create sufficient
Liberal peers to achieve the Bill's passage through the Lords if
opposition in that House continued.
- The new procedure was then used
to enact two important constitutional measures, on 'Home Rule' in
Ireland and the disestablishment of the Anglican Church in Wales: the
Government of Ireland Act 1914 and the Welsh Church Act 1914. The third
statute enacted by use of this procedure was the Act whose validity is
now under challenge: the Parliament Act 1949.
The scope of the 1911 Act: the exceptions
from section 2
- Against this historical
background, set out more fully by your Lordships, I turn to the
interpretation of the 1911 Act. The starting point is to note the
express limitations on the types of Bills falling within section 2. The
opening words of section 2(1) read:
'If any Public Bill (other than a Money Bill or a Bill containing
any provision to extend the maximum duration of Parliament beyond five
years) is passed by the House of Commons in three successive sessions
..[etc]'
- Thus, to be within section 2 a
Bill must be a public Bill. A private Bill is outside the scope of the
section. Section 5 clarifies that in this context a provisional order
Bill does not count as a public Bill. This type of legislation seems now
to have fallen into disuse. Further the Bill must not be a money Bill.
Money Bills are dealt with separately in section 1. Also excluded is any
Bill containing a provision extending the life of a Parliament beyond
five years. In summary, leaving aside money Bills, for which the Act
makes separate provision, the sole significant exception from the
generality of 'any public Bill' in section 2 is a Bill extending the
duration of Parliament.
- This latter exclusion is a
provision of major constitutional importance. Section 7 of the 1911 Act
substituted five years for seven years as the time fixed for the maximum
duration of Parliament under the Septennial Act 1715. The wording of
section 2(1) of the 1911 Act makes clear beyond a peradventure that when
enacting this statute Parliament intended the Commons should not be
able, by use of the new section 2 procedure, unilaterally to extend the
duration of Parliament beyond this newly-reduced limit of five years.
The political party currently in control of the House of Commons,
whichever it might be, could not use its majority in that House as the
means whereby to postpone accountability to the electorate. The
government could not, of itself, prolong its period in office beyond a
maximum of five years. Despite the 1911 Act, such an extension would
still require the approval of the House of Lords.
- So much is apparent from the
express language of the Act. But would it be open to the House of
Commons to do indirectly by two stages what the House cannot do directly
in one stage? In other words, could the section 2 procedure be used to
force through a Bill deleting from section 2 the words 'or a Bill
containing any provision to extend the maximum duration of Parliament
beyond five years'? If this were possible, the Commons could then use
the section 2 procedure to pass a Bill extending the duration of
Parliament.
- In my view the answer to these
questions is a firm 'no'. The Act setting up the new procedure expressly
excludes its use for legislation extending the duration of Parliament.
That express exclusion carries with it, by necessary implication, a like
exclusion in respect of legislation aimed at achieving the same result
by two steps rather than one. If this were not so the express
legislative intention could readily be defeated.
- Thus far, therefore, it is
apparent that in one significant respect there is to be found in section
2 an implied restriction on the type of legislation for which the new
procedure may be employed. The crucial question for the purposes of this
appeal is whether any other restriction is implicit in section 2.
- I consider there is none.
Section 2 specifically excludes from its scope legislation extending the
duration of Parliament. The implied exclusion, or restriction, discussed
above is based on the existence of this express exclusion. This
implied restriction is necessary in order to render the
express restriction effectual. It is ancillary to the express
exclusion. Section 2 contains no other significant express
restriction on the types of legislation for which the new procedure
may be employed. I can see no warrant for implying into section 2 any
further restriction in this regard.
- In particular, there is no
express exclusion of a Bill amending the terms of section 2 itself. On
the face of the Act section 2 is as much applicable to a Bill of the
latter character as it is to any other public Bill (save for those
specifically excepted). Lacking the base afforded by an express
exception, I can see no good reason for implying an exception in respect
of such a Bill. The 1911 Act marked the legal recognition of the primacy
of the House of Commons over the House of Lords. This primacy is to be
cut down only to the extent the statute so provides either expressly or
by necessary implication.
'Delegated legislation'
- This interpretation of section 2
provides the answer to the claimants' submission that legislation made
under the 1911 Act is 'delegated legislation' and that those to whom
power to make legislation is delegated cannot enlarge that power unless
there are express words of authorisation. No doubt, as a matter of
jurisprudential analysis, the source of validity of legislation made
under the 1911 Act is not quite the same as the source of validity of
legislation enacted by the monarch with the advice and consent of both
Houses of Parliament. In the latter case the validity of the legislation
does not depend on satisfying the criteria set by some identifiable
anterior legal rule. An Act passed by both Houses is accepted by the
courts as speaking for itself. In the former case, of a statute enacted
pursuant to the 1911 Act procedure, the legislation must accord with the
requirements of that Act.
- In the present context, however,
this difference in source of legal validity leads nowhere. Ultimately,
in all these cases the question is one of interpretation of the scope of
the enabling power; here, section 2 of the 1911 Act. As to that, the
product of the section 2 procedure is an Act of Parliament. Section 2 so
provides. To describe an Act of Parliament made by this procedure as
'delegated' or 'subordinate' legislation, with all the connotations
attendant on those expressions, would be an absurd and confusing
mis-characterisation. It would be equally inappropriate to liken the
House of Commons to a 'delegate' or 'agent' when applying the 1911 Act
procedure. The appropriate approach, rather, is to recognise that in
enacting section 2 the intention of Parliament was to create a second,
parallel route by which, with the stated exceptions ('other than …'),
any public Bill introduced in the Commons could become law as an Act of
Parliament. It would be inconsistent with this intention to interpret
section 2 as subject to an inherent, over-arching limitation comparable
to that applicable to delegated legislation.
Hansard: the need for transparency
- If required, confirmation of
this interpretation of section 2 is readily to hand, from two sources.
The first comprises ministerial statements, made during the
parliamentary passage of the Bill for the 1911 Act, on the purpose
sought to be achieved by section 2. In some quarters the Pepper v
Hart principle is currently under something of a judicial cloud. In
part this is due to judicial experience that references to Hansard
seldom assist. In part this seems also to be due to continuing
misunderstanding of the limited role ministerial statements have in this
field. This is a matter I explored in R v Secretary of State for the
Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 399, and Wilson v First County Trust Ltd (No 2)
[2004] 1 AC 816, 841. Suffice to say, it would be unfortunate if
Pepper v Hart were now to be sidelined. The Pepper v Hart
ruling is sound in principle, removing as it did a self-created judicial
anomaly. There are occasions when ministerial statements are useful in
practice as an interpretive aid, perhaps especially as a confirmatory
aid.
- The present case is such an
occasion. In 1911 amendments were moved in both Houses of Parliament to
the effect that a Bill for amending the terms of the 1911 Act was
excepted from section 2. In successfully resisting these amendments
ministers made plain that, apart from money Bills, the rule laid down in
section 2 was intended to be applicable to all legislation: see, in the
House of Commons, the Prime Minister (Mr Asquith), Hansard HC 24 April
1911, cols 1473 and 1494 and, in the House of Lords, Viscount Morley of
Blackburn and Viscount Haldane, Hansard HL 29 June 1911, cols 1188 and
1196. (At a later stage the Bill was amended to add the exception in
respect of a Bill containing a provision extending the duration of
Parliament.) These ministerial statements are useful in practice as
confirmatory evidence of the object sought to be achieved by section 2.
Transparency requires this should be recognised openly.
Subsequent legislation
- The second source of
confirmation is the use Parliament has subsequently made of the amended
section 2 procedure. In addition to the Hunting Act 2004 the procedure
prescribed by the 1911 Act as amended by the 1949 Act has been used to
enact three statutes: the War Crimes Act 1991, the European
Parliamentary Elections Act 1999 and the Sexual Offences (Amendment) Act
2000. Each of these Acts has itself been recognised and treated as valid
legislation in later statutes enacted by the Sovereign with the consent
of both Houses. Details appear in the judgment of the Court of Appeal [2005] QB 579, 606, paras 93 to 96.
- In this way both Houses of
Parliament have unequivocally and repeatedly recognised the validity and
effectiveness of the 1949 Act. Both Houses have recognised that the
procedure prescribed by the 1911 Act was effectually amended by the 1949
Act. Both Houses have acted on this footing. In the ordinary course the
enactment of legislation on the basis of a particular interpretation of
earlier legislation does not preclude the courts from ruling that the
parliamentary understanding was mistaken: see West Midland Baptist
(Trust) Association Inc v Birmingham Corporation [1970] AC 874, 898,
per Lord Reid. But in the present case the involvement of the
legislature goes much deeper. In the present case the later legislation,
for instance, the legislation amending the Sexual Offences (Amendment)
Act 2000, simply could not have had effect if the earlier legislation
was not validly enacted.
- Moreover, and importantly, the
Attorney General was right when he submitted that the impact of the 1949
Act has been much wider than its use on four specific occasions. For the
last half century legislative business has been conducted in both Houses
against a background awareness that the 1911 Act procedure as amended in
1949 is available to be used should this become necessary and be
appropriate. This general understanding of the effect of the 1911 Act,
coupled with the actual use of the amended procedure on several
occasions, is a strong pointer away from the claimants' interpretation
of the 1911 Act. (There is, I might add, an analogy here with the use of
parties' subsequent conduct as an aid to the interpretation of their
contract. In principle such conduct is, or should be, admissible for
this purpose: see (2005) 121 LQR 577, 588-589.)
- For these reasons I agree with
all your Lordships that this appeal must fail. The Bill to the
Parliament Act 1949 was within the scope of section 2 of the 1911 Act.
From this it follows that the legal challenge to the enactment of the
Hunting Act 2004 also fails.
LORD STEYN
My Lords,
1. The Dominance of the Government.
- The power of a government with a
large majority in the House of Commons is redoubtable. That has been the
pattern for almost 25 years. In 1979, 1983 and 1987 Conservative
governments were elected respectively with majorities of 43, 144 and
100. In 1997, 2001 and 2005 New Labour was elected with majorities of
respectively 177, 165 and 67. As Lord Hailsham explained in The
Dilemma of Democracy (Collins, London, 1978), 126 the dominance of a
government elected with a large majority over Parliament has
progressively become greater. This process has continued and
strengthened inexorably since Lord Hailsham warned of its dangers in
1978.
II. The Hunting Act 2004.
- The New Labour government
decided that it would abolish the ancient liberty of the British people,
regularly exercised by a great many individuals up and down the land, to
take part in fox hunting. It was a deeply controversial measure. Bills
passed by the House of Commons were rejected by the House of Lords. The
government decided to use the Parliament Acts 1911 and 1949 to enact
this measure. That is how the Hunting Act 2004 came to be enrolled as a
statute passed by the United Kingdom Parliament.
III. Is the Hunting Act 2004 valid?
- The central question on this
appeal is whether the Hunting Act 2004 is a valid Act of Parliament. It
is important at the outset to explain what this appeal is about and what
falls beyond the issues presently before the House. There is a clear
distinction between two questions: (1) what Parliament may do by
legislation, and (2) what the constituent elements of Parliament must do
to legislate. The first question involves the domain of the supremacy or
sovereignty of Parliament. It is a question to which I will return at
the end of this opinion. It is, however, not directly in issue on this
appeal. The focus of this appeal is the second question, namely what the
constituent elements of Parliament must do to legislate.
IV. Did the 1949 Act validly amend the 1911 Act?
- Upon closer examination the
question before the House resolves itself into the issue whether the
Parliament Act 1949 validly amended the 1911 Act, and therefore whether
the Hunting Act 2004 was a valid statute having been enacted under the
Parliament Act procedure.
- Nobody doubts that Parliament as
ordinarily constituted, involving the House of Commons, House of Lords
and the Monarch, validly enacted the 1911 Act. This statute created a
new method of ascertaining the declared will of Parliament. It restated
the manner and form in which laws may be made in respect of what I will
call "delayed Bills", i.e. Public Bills passed three times by the House
of Commons and rejected on each occasion by the House of Lords. In
respect of such Public Bills the new method of making law involved,
subject to the precise conditions of the 1911 Act, the elimination of
the House of Lords as a constituent element of Parliament. In the words
of the 1911 Act, upon its conditions being fulfilled the "Bill shall, on
its rejection for the third time by the House of Lords, unless the House
of Commons direct to the contrary, be presented to His Majesty and
become of an Act of Parliament on the Royal Assent being signified
thereto, notwithstanding that the House of Lords have not consented to
the Bill . . .". While it will be necessary to examine how this new
method of expressing the will of Parliament should, as a matter of
constitutional law and statutory interpretation be categorised, and what
the limitations upon its use are, its essential validity is not
disputed.
V. The 1911 Act.
- The attack on the validity of
the Hunting Act 2004 asserts that the limitations contained in the 1911
Act were ignored. The restrictions on the powers of the House of Lords
in the 1911 Act, and the limitations on the use of the 1911 Act, must be
set out. Before doing so I would make a general comment on the 1911 Act.
The 1911 Act bears the hallmark of precise drafting. First Parliamentary
Counsel explained in 1997 the unique function of legislation:
"a Bill is not there to inform, to explain, to entertain or to
perform any of the other usual functions of literature. A Bill's sole
reason for existence is to change the law. The resulting Act is
the law. A consequence of this unique function is that a Bill
cannot set about communicating with the reader in the same way that
other forms of writing do. It cannot use the same range of tools. In
particular, it cannot repeat important points simply to emphasise
their importance or safely explain itself by restating a proposition
in different words. To do so would risk creating doubts and
ambiguities that would fuel litigation. As a result, legislation
speaks in a monotone and its language is compressed."
See: An Extract from a Note from First Parliamentary Counsel to the
Select Committee on the Modernisation of the House of Commons: Second
Report, HC 389 (3 December 1997), Appendix, p 2, Annex A, para 35. The
1911 Act was drafted in this traditional style. This factor makes it
prima facie likely that the 1911 Act contains all the material
provisions relevant to its operation.
- Section 2 of the 1911 Act
provides in part as follows:
"(1) If any Public Bill (other than a Money Bill or a
Bill containing any provision to extend the maximum duration of
Parliament beyond five years) is passed by the House of Commons in
three 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 for the
third time by the House of Lords, unless the House of Commons direct
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: Provided that this provision shall not take effect unless two
years have elapsed between the date of the second reading in the first
of those sessions of the Bill in the House of Commons and the date on
which it passes the House of Commons in the third of those sessions.
(2) When a Bill is presented to His Majesty for assent
in pursuance of the provisions of this section, there shall be
endorsed on the Bill the certificate of the Speaker of the House of
Commons signed by him that the provisions of this section have been
duly complied with."
Section 5 provides:
"In this Act the expression 'Public Bill' does not include any
Bill for confirming a Provisional Order."
Section 7 provides:
"Five years shall be substituted for seven years as the time fixed
for the maximum duration of Parliament under the Septennial Act,
1715."
- Prima facie the 1911 Act
applies to "any Public Bill". But it is a matter of controversy what the
limitations on the use of the 1911 Act are. Three points must be
mentioned. First, by long standing arrangement Money Bills were
specially provided for by placing it beyond the power of the House of
Lords to delay them: Erskine May, The Constitutional History of
England since the Accession of George The Third, 1760-1860, 11th ed
(1896), Vol II, Chapter VII, pp 98-99. Section 1 of the 1911 Act
provides that if a Money Bill is sent up to the House of Lords in due
time and not passed by them, it is to be presented to His Majesty and
become an Act of Parliament on the Royal Assent being signified,
"notwithstanding that the House of Lords have not consented to the
Bill." Secondly, the status of the limitation on the duration of
Parliament is a matter of controversy in these proceedings. Thirdly, it
is common ground that the 1911 Act could not be used for the purpose of
"confirming a Provisional Order". This refers to a bill to confirm a
provisional order issued by a Minister under the authority of an Act of
Parliament: Wilding & Laundy, An Encyclopaedia of Parliament,
4th ed (1972), 619. This procedure has now fallen in disuse:
Companion to the Standing Orders and Guide to the Proceedings of the
House of Lords, (2005), para 7.68. But its place in the scheme of
the 1911 Act is still relevant to issues of interpretation.
- There are two possible views
about the limitation on the duration of Parliament. First, it may be a
strict condition which must be complied with at all times. Secondly, it
may be possible, by use of the 1911 Act to eliminate this limitation
albeit in two stages. It is a point of construction. In the context of a
Parliamentary democracy the language of section 2(1) and section 7
supports the former interpretation. I would so rule.
VI. Is modification of the conditions of the
1911 Act permissible only by Parliament as ordinarily
constituted?
- It is argued by those who
challenge the 2004 Act that inherent in the 1911 Act there is another
fundamental limitation on its use, namely that the Parliamentary
intendment reflected in the 1911 Act precludes modification of the
conditions specified in it without the consent of Parliament as
ordinarily constituted. In other words Parliament as specially
constituted under the 1911 Act may not alter the conditions prescribed
for its use. This is an argument of substance, powerfully presented to
the House by Sir Sydney Kentridge QC. Before I examine it directly it
may be useful if I tried to state what is involved in the concept of
Parliament as ordinarily constituted legislating for its own
reconstitution for specific purposes.
VII. What is Parliament?
- The word Parliament involves
both static and dynamic concepts. The static concept refers to the
constituent elements which make up Parliament: the House of Commons, the
House of Lords, and the Monarch. The dynamic concept involves the
constituent elements functioning together as a law making body. The
inquiry is: has Parliament spoken? The law and custom of Parliament
regulates what the constituent elements must do to legislate: all three
must signify consent to the measure. But, apart from the traditional
method of law making, Parliament acting as ordinarily constituted may
functionally redistribute legislative power in different ways. For
example, Parliament could for specific purposes provide for a two-thirds
majority in the House of Commons and the House of Lords. This would
involve a redefinition of Parliament for a specific purpose. Such
redefinition could not be disregarded. Owen Dixon neatly summarised this
idea in 1935:
". . . The very power of constitutional alteration cannot be
exercised except in the form and manner which the law for the time
being prescribes. Unless the Legislature observes that manner and
form, its attempt to alter its constitution is void. It may amend or
abrogate for the future the law which prescribes that form or that
manner. But, in doing so, it must comply with its very requirements."
See: The Law and the Constitution, 51 LQR 590, 601. This
formulation can be traced to the majority judgment in Attorney
General for New South Wales v Trethowan (1931) 44 CLR 394, and in
particular to the judgment of Dixon J at 424. The Parliament of New
South Wales had amended the Constitution to require that any Bill to
abolish the Upper House had to be approved at a referendum before being
presented for Royal Assent, and that any Bill to remove this requirement
also had to be submitted to a referendum. A non-conforming statute was
held to be void.
VIII. The practical application of the theory.
- So far I have discussed a
possible theoretical approach to this case in terms which are a little
abstract. In formulating it I have drawn on the incisive analysis of
Professor D V Cowen, Parliamentary Sovereignty and the Entrenched
Sections of the South Africa Act (1951).
- The circumstances of some
important constitutional cases, and the decisions in them, give some
actuality to the analysis. In Taylor v Attorney General of
Queensland (1917) 23 CLR 457 the Parliamentary Bills Referendum Act
of 1908 in respect of Queensland provided that when a Bill passed by the
Legislative Assembly in two successive sessions had in the same two
sessions been rejected by the Legislative Council, it might be submitted
by referendum to the electors, and if affirmed by them, would require
the Governor to seek the assent of the King, and upon receiving such
assent, the Bill would become an Act of Parliament as if passed by both
Houses of Parliament. The Australian High Court held unanimously in
several judgments that there was power to abolish the Legislative
Council by an Act passed by the Legislative Assembly and affirmed by the
electors in accordance with the Parliamentary Bill Referendum Act 1908.
The decision of the Australian High Court in Clayton v Heffron,
(1960) 105 CLR 214 (which involved a referendum to abolish the Upper
House of New South Wales) is in the same line of authority.
- Possibly even more instructive
are the trilogy of cases associated with the South African
constitutional crisis in the 1950s. Under the South Africa Act there was
a provision entrenching the right of Cape Coloured voters to be on the
same voters roll as white voters. The entrenchment was achieved by
sections 63 and the proviso to section 152 of the South Africa Act which
provided that the voting rights of Cape Coloured voters could only be
removed by a two-thirds majority of both Houses of Parliament sitting
together. In furtherance of its racist ideology the Nationalist
government decided to abolish this right. Its attempt to do so was
contested. In Harris v Minister of the Interior 1952 (2) 428 (AD)
the issue came before the Appellate Division, as it was then known. The
court had in mind (at 431C) the clear distinction between what
Parliament may do by legislation and what the constituent elements must
do to legislate. Ruling unanimously that the government's attempt to
by-pass the entrenched provisions was invalid, Centlivres CJ speaking
for the Appellate Division observed (at 464E-F):
"A State can be unquestionably sovereign although it has no
legislature which is completely sovereign. As Bryce points out in his
Studies in History and Jurisprudence (1901 ed, vol II, p 53)
legal sovereignty may be divided between two authorities. In the case
of the Union, legal sovereignty is or may be divided between
Parliament as ordinarily constituted and Parliament as constituted
under section 63 and the proviso to section 152. Such a division of
legislative powers is no derogation from the sovereignty of the Union
and the mere fact that that division was enacted in a British Statute
(viz, the South Africa Act) which is still in force in the Union
cannot affect the question in issue."
Subsequently, a further attempt to elide the entrenched provisions by
the charade of a High Court of Parliament was rejected in Minister of
the Interior v Harris 1952 (4) 769. Although not strictly relevant
to the matter under discussion the Nationalist government then achieved
its objective by packing the Senate and the Appellate Division itself:
Collins v Minister of the Interior 1957 (1) 552 (AD).
- The decision of the Privy
Council in Bribery Commissioner v Ranasinghe [1965] AC 172
is also important. It was an appeal from Ceylon. An Act was passed but
not in conformity with the constitutional legislative procedure. Lord
Pearce delivered the judgment of the Privy Council. He observed, at
pp197-198:
"A legislature has no power to ignore the conditions of law-making
that are imposed by the instrument which itself regulates its power to
make law. This restriction exists independently of the question
whether the legislature is sovereign, as is the legislature of Ceylon,
or whether the constitution is 'uncontrolled,' as the board [in
McCawley's case [1920] AC 691] held the constitution of
Queensland to be. Such a constitution can, indeed, be altered or
amended by the legislature, if the regulating instrument so provides
and if the terms of those provisions are complied with: and the
alteration or amendment may include the change or abolition of those
very provisions. But the proposition which is not acceptable is that a
legislature, once established, has some inherent power derived from
the mere fact of its establishment to make a valid law by the
resolution of a bare majority which its own constituent instrument has
said shall not be a valid law unless made by a different type of
majority or by a different legislative process."
This dictum is consistent with the analysis already explained.
IX. A prima facie view.
- The Parliament Act 1911 spells
out when it may be used and what must be done in order to legislate
under it. Parliament as ordinarily constituted enacted the 1911 Act.
Acting in accordance with the conditions appearing on the face of the
1911 Act Parliament as redefined in that Act for limited and specific
purposes enacted the Parliament Act 1949. Prima facie the
Parliament Act 1949 is valid.
X. The Alleged Limitation on the Use of the Parliament Act
1911.
- Sir Sydney submits, however,
that the route of the procedure under the 1911 Act could not be used to
secure an amendment of the 1911 Act. He contends that this is so because
of an express limitation on the use of the 1911 Act. Although he eschews
reliance on an implication, I suppose the argument could alternatively
be based on a constructional implication. If such a limitation on either
basis is established, the effect would indeed be that the Parliament Act
1949 could not be used to enact the Hunting Act 2004.
- The question is whether such a
construction, express or implied, is permissible. In my view there is no
such limitation in the 1911 Act. Sir Sydney emphasises the
conditionality of the language of section 2(1) introduced by the word
"If …". That feature cannot, however, by itself support the suggested
limitation. The existence of express limitations in respect of Money
Bills, the duration of Parliament, and Provisional Orders make it
impossible to accommodate the further limitation suggested. Mention of
these three limitations by necessary implication excludes any other
limitation. Moreover, the duty placed on the Speaker under section 2(2)
to certify that "the provisions of this section have been duly complied
with" militates against a construction requiring the Speaker to act in
accordance with unstated limitations. The printed case for the League
Against Cruel Sports brought out the force of this point (para 6(3)):
"It would be very surprising were Parliament to have intended
other than that 'the provisions' there referred to are those
expressly stated in section 2(1) (as amended from time to
time). Parliament cannot have intended that the Speaker should ask
himself whether there are implicit provisions relevant to the
validity of legislation enacted under section 2(1). His task is simply
to identify whether the Act complied with the express words of section
2(1). The 1949 Act did so comply: it amended the 1911 Act by following
the procedure specified in section 2(1) of the 1911 Act. Any
obligation on the Speaker to consider other matters would introduce a
degree of uncertainty into the operation of the Act that cannot have
been intended."
In my view the substantive provisions of the 1911 Act rule out the
limitation contended for.
- Sir Sydney also relies on the
preamble of the 1911 Act. He suggested that in the second preamble the
legislature's use of the word "Parliament" denoted Parliament as
ordinarily constituted. It follows, he submitted, that any legislation
to restrict the powers of the House of Lords would have to be passed by
Parliament as ordinarily constituted. In my view this contention is
convincingly answered by the fact that in section 1(2), in the context
of Money Bills, reference is made to "money provided by Parliament".
This contemplates money provided by Parliament in its reduced form.
Moreover, by section 2(1) itself, a Bill thereby enacted becomes "an Act
of Parliament". In any event, arguments based on the preamble cannot
possibly prevail against the clear language of the substantive
provisions.
- I would, therefore, rule that
the limitations put forward by Sir Sydney ar
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