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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Jackson & Ors, R (on the application of) v HM Attorney General  EWCA Civ 126 (16 February 2005)
Cite as:  NPC 24,  QB 579,  EWCA Civ 126,  2 WLR 866
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
LORD JUSTICE MAURICE KAY AND MR JUSTICE COLLINS
Strand, London, WC2A 2LL
B e f o r e :
LORD PHILLIPS OF WORTH MATRAVERS, MR
LORD JUSTICE MAY
|The Queen on the application of Jackson
|- and -
|HM Attorney General
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Lord Goldsmith QC, Mr Philip Sales and Mr Clive Lewis (instructed by Treasury Solicitor) for the Respondent
Mr David Pannick QC and Mr Gordon Nardell (instructed by Messrs Collyer-Bristow) for the Interveners
Crown Copyright ©
This is a Judgment of the Court to which each member has contributed.
"…all that a Court of Justice can do is look to the Parliament 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 progress in its various stages through Parliament."
"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 ("the 1911 Act") by the authority of the same, as follows: -"
"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 background to the Parliament Acts
"It is well known that, following the Liberal election victory of 1906, the Lords on several occasions rejected the legislation proposed by the Liberal Government. This series of rejections culminated in 1909 when the Lords rejected Lloyd George's Budget by 350 votes to 75. A general election was called and the Liberal Government was re-elected in 1910. The House of Lords then accepted Lloyd George's Budget, but the incident spurred calls for reform of that House. In 1910, the newly formed Government introduced the Parliament Bill, which was designed to extinguish the House of Lords' power over Finance Bills and to limit its powers over other Bills. The Government announced that rejection of this measure by the Lords would lead to a further dissolution of Parliament. That step became necessary and a further general election took place in December 1910, again resulting in the re-election of the Liberal Government.
After the election, the Commons again passed a Parliament Bill. The Lords again attempted to amend it, but the Commons insisted on its Bill, which was eventually passed by the Lords in 1911, after the Prime Minister, Asquith, had publicly announced his intention to ask the King, George V, to create large numbers of new Liberal peers if necessary. The Bill so passed became the Parliament Act 1911.
The 1949 Act was passed using the provisions of the 1911 Act, that is to say, by the Commons alone in three successive sessions, two years having elapsed between the date of Second Reading in the first of those sessions and the date on which it passed the House of Commons in the third."
The relevant legislative provisions
"Parliament means, in the mouth of a lawyer.... the King, the House of Lords and the House of Commons; these three bodies acting together may be aptly described as the 'King in Parliament', and constitute Parliament.
The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament."
"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:
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, …"
"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."
"(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 directs 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."
"if we are to have Single Chamber Government thrust upon us, then at least let us withdraw from that Single Chamber the power of extending and perpetuating its own existence"
The Government was initially opposed to the amendment because it assumed the amendment was unnecessary but in the House of Lords the amendment was agreed. When the Bill returned to the Commons, the amendment was accepted by Mr Churchill, the then Home Secretary, who explained;
"We are, I think, bound to make every effort in our power to give reasonable reassurance where we can, without prejudice to any essential principles of the Bill, to persons to whom we are opposed." (Extracted from Can the House of Lords be Abolished? (1979) 95 LQR 54-55 Peter Mirfield)"
a) The 1911 and the 1949 Acts did not remove but restricted the involvement of the House of Lords in the Parliamentary process. The restriction did not affect Bills introduced in the Lords which still require the consent of both Houses to their enactment.
b) Even in the case of a Bill introduced in the Commons, the House of Lords was left with a very significant role. The House of Lords can debate and revise a Bill although its amendments can ultimately be rejected by the Commons.
c) Nevertheless, the 1911 Act significantly redefined the relationship between the two Houses by restricting the circumstances in which the consent of the House of Lords was required before a Bill became law.
d) The 1949 Act did not remove any restriction contained in the 1911 Act. It only reduced the period that had to elapse before the consent of the Lords could be dispensed with. For example, it did not attempt to extend the maximum duration of Parliament beyond 5 years. The changes made by the 1949 Act were far less significant than the changes made to the constitutional position of the House of Lords by the 1911 Act.
Contentions of the Appellants
"(i) describing legislation passed under the 1911 Act as 'more akin to primary legislation' and as having 'all the trappings of primary legislation' ('Legislation passed under the 1911 Act is not primary, but delegated or subordinate legislation');
(ii) holding inapplicable to this case the established principle that, where an Act of Parliament confers on a body the power to legislate subject to stipulated conditions, it does not, in the absence of express words, authorise that body to vary the stipulated conditions or to enlarge its own powers ('The principle applies that powers given by an enabling
Act may not be enlarged or modified save by express words of authorisation'); and
(iii) holding that, on a proper construction of the 1911 Act read as a whole, s.2(1) of that Act should be read as enabling the Commons, without the consent of the Lords, to attenuate or remove completely the very conditions on which its law-making power was granted ('On a proper construction, the 1911 Act does not authorise the Commons to remove or attenuate the conditions on which its law-making power was granted')."
"(iv) expressing the views that (a) ministerial statements made during the passage of the Bill which became the 1911 Act were admissible in support of the Attorney General's construction and (b) such statements disclose that "the central issue in this case was in the minds of Parliamentarians in both Houses";
(iv) expressing the view that legislation passed after the 1911 and 1949 Acts could be used as an aid to construction of the 1911 Act."
Legislation passed under the 1911 Act is not primary, but delegated or subordinate legislation.
"All legislation can be classified as primary or subordinate. Quite simply, legislation is subordinate if it owes its existence or authority to other legislation: if it does not, it is primary."
"Professor de Smith maintained that by these Acts Parliament had redefined itself for particular purposes: the sovereign legislature of Queen, Lords and Commons had provided an optional alternative consisting of Queen and Commons only; and this new body could legislate in accordance with the Act for all purposes other than prolongation of the life of Parliament. Such legislation, he said, was primary and not delegated; yet he accepted that if it purported to prolong the life of Parliament it would be a nullity. With this last point I fully agree, but I cannot square it with the notion that legislation enacted under the Parliament Acts is primary. The acid test of primary legislation, surely, is that it is accepted by the courts at its own face value, without needing support from any superior authority. But an Act passed by Queen and Commons only has no face value of its own. As Coke put it in The Prince's Case, "If an Act be penned, that the King with the assent of the Lords, or with the assent of the Commons, it is no Act of Parliament for three ought to assent to it scil. The King, the Lords and the Commons." An Act of Queen and Commons alone is accepted by the courts only because it is authorised by the Parliament Act – and indeed it is required to recite that it is passed "in accordance with the Parliament Acts 1911 and 1949 and by authority of the same". This is the hall-mark of subordinate legislation and I do not understand how it is possible to disagree with Professor Hood Phillips when he says that it is the correct classification."
Sir Sydney submits that there can be no answer to this reasoning.
"This Bill is a short and workmanlike measure to bring up to date an Act which, at the time of its passing, was fiercely resisted by the party now represented by right hon. and hon. Gentlemen opposite. They then proclaimed their definite intention, as soon as they got into office, to repeal it. Now they accept it as one of the pillars of the Constitution. Therefore, one does not have to argue anything other than the shortening of the time during which another place can delay the non-financial proposals which this House sends forward to them. We feel that the length of time allowed in this Bill of one year and two Sessions is adequate to ensure that proposals which may be the subject of controversy between the two Houses shall receive full and ample consideration before being carried into effect, even if another place should not be reconciled to them. (Parliamentary Debates 1947-48 Vol 445 at p 1018)."
This statement makes clear that the ambitions for the 1949 Bill were of a modest nature. It involved no more than a modification of the 1911 Act and we recognise that such a modification of the 1911 Act is a change of a different dimension from the dramatic changes that we have just been discussing.
Can powers granted by an enabling Act only be enlarged or modified by express words of authorisation?
"The answer, as a matter of principle, is that, when Parliament confers power to legislate (even a wide or plenary power), the act of enlarging that power is, prima facie, repugnant to the enabling Act. Where the legislative power is granted subject to specified conditions, the act of modifying those conditions undermines the conditionality of the power. The foregoing analysis is supported by the colonial and Dominion cases, which were cited below both by the Appellants and by the Attorney General."
"… a constitution [is not] debarred from being reckoned as an uncontrolled constitution because it is not, like the British constitution, constituted by historic development, but finds its genesis in an originating document which may contain some conditions which cannot be altered except by the power which gave it birth. It is of the greatest importance to notice that where the constitution is uncontrolled the consequences of its freedom admit of no qualification whatever."
"Every colonial Legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish Courts of Judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein; and every representative Legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers and procedure of such Legislature, provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or colonial law for the time being in force in the said colony."
"The Legislature of the Colony of Queensland shall have full power and authority from time to time to make laws altering or repealing all or any of the provisions of this Order in Council in the same manner as any other laws for the good government of the colony except …".
This in turn was held to be within the powers conferred by s.7 of the Imperial Act 18 & 19 Vict c 54.
"When a sovereign Parliament has purported to enact a bill and it has received the Royal Assent, is it a valid Act in the course of whose passing there was a procedural defect, or is it an invalid Act which Parliament had no power to pass in that manner?"
"… showed clearly that the Board in McCawley's case took the view, which commends itself to the Board in the present case, that 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 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 these 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."
And Lord Pearce said at page 200A:
"No question of sovereignty arises. A parliament does not cease to be sovereign whenever its component members fail to produce among them a requisite majority, e.g., when in the case of ordinary legislation the voting is evenly divided or when in the case of legislation to amend the Constitution there is only a bare majority if the Constitution requires something more. The minority are entitled under the Constitution of Ceylon to have no amendment of it which is not passed by a two-thirds majority. The limitation thus imposed on some lesser majority of members does not limit the sovereign power of Parliament itself which can always, whenever it chooses, pass the amendment with the requisite majority."
"The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament which has, and was intended to have, plenary powers of legislation, as large and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they were restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to enquire further, or to enlarge constructively those conditions and restrictions."
"It is also true that in general the legislation of a body created by and acting under a written charter or constitution is valid only so far as it conforms to the authority conferred by that instrument of government, and that therefore attempted legislation, merely at variance with the charter or constitution, cannot be held an effective law on the ground that the authority conferred by that instrument includes a power to alter or repeal any part of it, if the legislation questioned has to be preceded by a good exercise of such power; that is, if the charter or constitution has not antecedently been so altered within the authority given by that document itself. … Normally, therefore, in the absence of such a provision as s.5 of the Imperial Act, I should have been prepared to hold that the [1908 Act], which, though it professed to be an amendment of the Constitution Act of 1867, was merely, in view of its provisions, an Act at variance with the constitution, not preceded by a valid extension of the constitutional power, was therefore itself, as it stood, invalid. But in the present case the Imperial provision seems to me to take away the application of the principle I have stated to legislation of the kind which it authorises."
The other four judges, Isaacs, Gavan Duffy, Rich and Powers JJ each held that the 1908 Act was validly enacted under power derived from s.5 of the 1865 Act.
"The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever."
The Act to abolish the Legislative Council was held to be valid.
On a proper construction of the 1911 Act, does it authorise the Commons to remove or attenuate the conditions on which its law-making power are granted?
The significance of the Parliamentary context
The passing of the 1911 Act
"…the exclusionary rule should be relaxed so as to permit reference to Parliamentary materials where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect and (c) the statements relied upon are clear."
"What I claim for my Amendment is that any change in this Bill shall also not become law without the consent of both Houses, and that having once passed this Bill it shall not be again altered unless the House of Lords give its consent. That is the essential feature of this Amendment – that the same condition shall hold good as regards the alteration or amendment or modification of this Bill as the Government recognise must hold good in order that the Bill may pass into law. In other words, the proposal is that the Constitution of this country cannot be again changed any more than it is being changed now without either the assent of both Houses of Parliament, or without an appeal to the country, so that the will of the people with regard to any alteration in this Bill may be made known."
"We could not amend the procedure in Clause 2 of the Bill, however much experience might show it to be necessary, without resorting to the old forms of the Constitution, enabling the House of Lords to block our proposals."
"When you are handing over all the powers to this Chamber over ordinary legislation we see the greatest objection to it, but we at all events know that no further invasion upon our Constitution can be made except under the provisions you are putting before us. Now it seems that that may be the fruitful parent of any number of further revolutions, each one of which fritters away what you call the safeguards. In these circumstances you are asking us to substitute the ancient foundations of the Constitution, foundations of moving sand, which any breath may sweep away..…Are we now, from henceforth going to hand over to a majority of the House, constituted as he tells us as a majority of this House so often is, not merely the ordinary legislation of the country, but the very shaping of the machinery by which legislation is to be carried into effect?"
"Surely a Parliamentary bargain is worth nothing unless it can be enforced, and the effect of this bargain now proposed is that each of these safeguards may be swept away two years from now. You cannot enforce the safeguards. What then are your safeguards worth?"
"… we think it right that we should not submit ourselves to what we should have to submit ourselves to if the Amendment were accepted, namely, the possibility of our not being able, whatever experience we may show, to amend in any particular this measure."
The amendment was defeated.
"The Amendment would have the effect of keeping out any amending Bill to lessen the suspensory period of two years".
He went on to comment (paragraph 1186) that, without the amendment:
"I do not see that it would involve any great difficulty on the part of the Government of the day to alter the period of two years into one."
"But the action of the Government and the admission of the noble Viscount, Lord Morley, have shown that it is possible for a Bill to be brought in reducing the two years' delay to one, and the period of three sessions to two, so that what we said at the last election about single-Chamber government is perfectly true."
Comments of other members of the House before the amendment was withdrawn indicated general acceptance that if the Bill was enacted as drafted, it would be open to the Government to use its provisions to reduce the limited powers that it gave to the House of Lords.
"I must record my view that under the Parliament Act 1911 it was never contemplated that that particular procedure would be employed for the purposes of amending that Act. On the contrary, the preamble makes it quite plain that the Act was contemplated as a temporary Measure, and when the question of reform came before the House again what would be introduced, according to the framers of that Measure, would not be some amendment of that Act, but a totally new Second Chamber altogether. The purpose of using the Parliament Act procedure for the purpose of amending the Parliament Act is wholly outside the purposes of those who framed it, and is in itself a constitutional outrage."
Mr Hogg was not, however, suggesting that it was impossible to use the 1911 Act to pass the 1949 Act, merely that it was outrageous to do so. Mr Hogg was supported in his observations by another member of his party, Captain Crookshank (col 1803). The position was the same in the House of Lords. The Bill was attacked on its merits and on the ground that there was no popular mandate for it. But it was throughout accepted that the Government was in a position to use the 1911 Act to pass the Bill despite the opposition of the Lords.
"…the seat of sovereign power is not to be discovered by looking at Acts of Parliament but by looking at the courts and discovering to whom they give their obedience. In the case of peaceful revolutions, as has been pointed out, the issue is obscured by legal camouflage: Acts of Parliament purport to transfer sovereign power and since sovereign power passes at the same time by universal consent, the transfer is ascribed to the Acts. But it has already been seen that this is a defective explanation, for it leaves alive the controversy about the possibility of a repeal. That controversy can be resolved only in one way, by recognising that sovereignty is a political fact for which no purely legal authority can be constituted even though an Act of Parliament is passed for that very purpose. "
The restrictions on the exercise of the powers of the House of Lords that the 1949 Act purported to make have been so widely recognised and relied upon that they are today a political fact.
We dismiss the appeal.
ORDER: Appeal dismissed; no order as to costs; leave to appeal refused.