LORD PANNICK—WRITTEN EVIDENCE
Lord Pannick QC[78]
1. The Parliament Act 1911 strengthened the powers
of the House of Commons by restricting the powers of the House
of Lords. The Upper House no longer had any responsibility for
Money Bills (section 1) and only a delaying power in relation
to other Bills (section 2), subject to defined exceptions.[79]
2. In 1911, Conservative peers feared, or at
least asserted, that the Bill they were opposing would neuter
the House of Lords as an effective chamber of Parliament. The
Earl of Ancaster spoke for many when he complained that if the
legislation were to be enacted, peers "might just as well
join the Upper Tooting Debating Society as come down here and
speak in this House".[80]
3. But Peers continue to come to Westminster
from Tooting, as from all other parts of the United Kingdom, to
contribute to the consideration of Bills, and sometimes to improve
them. Indeed, the proposals brought forward by the Government
for reform of the House of Lords[81]
proceed from the premise that the Upper House continues to play
so important a role in the government of this country that its
membership should be determined by popular election, rather than
by appointment by the Executive.
4. A draft Bill to that effect has been referred
to a Joint Committee of both Houses of Parliament for pre-legislative
scrutiny.[82]
That Committee has been asked to report by 29 February 2012. If,
after the Joint Committee completes its work, the Government were
to introduce a Bill to make the House of Lords wholly or mainly
elected, and if the House of Commons supports such a proposal
(which is by no means certain), the Bill would almost inevitably
be rejected by the House of Lords, the overwhelming majority of
whose members take the view that an elected Upper House would
be less well-qualified to perform the expert revising role and
are concerned that difficult questions would arise about the respective
functions of the two Houses.[83]
5. An important legal issue would then arise.
Would the Parliament Act 1911 apply, restricting the House of
Lords to a delaying power? Such a question was described in one
textbook in 2003[84]
as "more appropriate for the classroom than the courtroom".
But since the Jackson case in 2005 on whether the Hunting
Act is valid law, there can be no doubt that the judiciary would
claim jurisdiction over such an issue.
6. For the reasons set out below, my opinion
is that the House of Commons could use the powers conferred by
section 2(1) of the Parliament Act 1911 to insist on the Government's
proposals for reform of the House of Lords.
7. Observations made by the Court of Appeal[85]
and by some members of the Appellate Committee of the House of
Lords[86]
in Jackson suggest that the Parliament Act may not apply
in this context.
8. The Countryside Alliance brought legal proceedings
to challenge the legal validity of the ban on hunting of foxes
with dogs. The Hunting Act had been enacted under the Parliament
Act 1949, which had amended the 1911 Act so as to reduce the delaying
powers of the House of Lords. The Claimants argued that the Parliament
Act 1949 was invalid because it was enacted under the 1911 Act
procedures, that is without the consent of the Lords. The Claimants
said that if the conditions set out in the 1911 Act for legislation
to be validly enacted without the consent of the Lords were to
be altered, it could only be done with the consent of the Commons
and the Lords. The claim failed. The High Court, the Court of
Appeal and the Appellate Committee of the House of Lords each
held that the Parliament Act 1949 was valid legislation and so
the Hunting Act was valid law.[87]
9. For the Court of Appeal, Lord Woolf, the Lord
Chief Justice[88],
stated that the purpose of the 1911 Act was "to establish
a new constitutional settlement". So it could not be used
"to enable more fundamental constitutional changes to be
achieved than had been achieved already". If Parliament had
intended to confer such a power, it "would be unambiguously
stated in the legislation". The Court of Appeal added that
"the greater the scale of the constitutional change proposed
by any amendment, the more likely it is that it will fall outside
the powers contained in the 1911 Act". However, the Court
of Appeal concluded that the amendments to the 1911 Act procedures
made by the 1949 Act were not fundamental and so the 1949 Act
was valid.[89]
10. The Appellate Committee of the House of Lords
rejected the approach taken by the Court of Appeal. But there
were further comments by some of the Law Lords suggesting limits
to the use of the 1911 Act to secure constitutional change without
the consent of the House of Lords. Lord Steyn said he was "deeply
troubled" about the suggestion that the 1911 Act could be
used to abolish the House of Lords. That would be, he suggested,
"an exorbitant assertion of government power in our bicameral
system".[90]
Lord Carswell noted that if attempts were made to use the 1911
Act to abolish the House of Lords or to make a "radical change
in its composition which would effect a fundamental change in
its nature", then he would "incline very tentatively
to the view" that "there may be a limit somewhere"
to the powers contained in the 1911 Act, though "the boundaries
appear extremely difficult to define".[91]
Lord Brown of Eaton-under-Heywood said that he was not prepared
to give a ruling which would sanction the use of the 1911 Act
for purposes such as the abolition of the House of Lords, though
he contrasted as less controversial an alteration in its composition
or the method of selection of Peers.[92]
11. Contrary to the views of the Court of Appeal
in the Hunting Act case, the 1911 Act confers ample legal power
on the House of Commons to use section 2(1) of the 1911 Act to
enact fundamental constitutional reform, if the House of Lords
refuses to give its approval to such proposals. There are four
arguments which support this conclusion.
12. First, the 1911 Act states when section 2(1)
cannot be used to force through a Bill without the consent of
the House of Lords.[93]
Section 2(1) expressly does not apply to a Money Bill (which under
section 1 is a matter for the House of Commons) or to a Bill containing
any provision to extend the maximum duration of Parliament beyond
5 years. Section 5 states that section 2 does not include any
Bill for confirming a provisional order (a form of legislation
which is no longer used).[94]
Given these specific exceptions, it would be difficult to imply
other exceptions. As Lord Bingham pointed out in the Hunting Act
case with his customary force and precision, subject to the stated
exceptions section 2(1) applies to "any" public Bill
and there is no broader expression than "any".[95]
13. Second, to imply limitations on the use of
the section 2(1) power would defeat the manifest purpose of the
1911 Act. The legislation was deliberately designed to ensure
that, in the event of a dispute, the elected House of Commons
could prevail over the unelected House of Lords. The controversy
over the Liberal Government's proposals for limiting the powers
of the House of Lords caused the second general election of December
1910 and was one of the main topics of debate in that general
election campaign[96].
Courts should be very reluctant to undermine the political victory
of the House of Commons by restricting its ability to decide when
it is appropriate to use the powers conferred by the 1911 Act,
subject only to the express limitations contained in the 1911
Act itself. Any use of the section 2(1) powers would occur only
in the circumstances of a highly contentious political dispute.
The courts should stay well away from implying limits on the ability
of the Government, through its majority in the House of Commons,
to resolve a political stalemate. The central purpose of the 1911
Act was to provide a means of resolving such a conflict other
than by the Government asking the monarch to appoint sufficient
new Peers to force the legislation through the House of Lords.
14. Third, the suggestion by the Court of Appeal
that the 1911 Act does not confer power on the House of Commons
to force through, without the consent of the Lords, a Bill which
involves fundamental constitutional reform would conflict with
the immediate purpose of the 1911 Act. It was designed to enable
the Liberal Government, supported by the Irish nationalists, to
secure the fundamental constitutional reform of Home Rule for
Ireland, which was strongly opposed by the Conservative Party.[97]
Indeed, the first two measures for which the 1911 Act was used
were important constitutional reforms: the Government of Ireland
Act 1914 on Home Rule, and the Welsh Church Act 1914 on the disestablishment
of the Anglican Church in Wales. Moreover, the suggestion that
section 2(1) of the 1911 Act cannot be used for fundamental constitutional
reform is very difficult to reconcile with the acceptance by the
Court of Appeal and by all members of the Appellate Committee
that section 2(1) allowed the House of Commons to force through
the Parliament Act 1949 amending section 2(1) itself, so permitting
a reduction in the delaying powers of the House of Lords. The
Court of Appeal's conclusion[98]
that the 1949 Act was not a fundamental constitutional reform
is surely wrong.
15. Fourth, it is plain from the Parliamentary
debates that the 1911 Act was intended to allow the House of Commons
to enact legislation without the consent of the House of Lords
on fundamental constitutional issues, including reform of the
House of Lords. Winston Churchill, the Home Secretary, made the
point very clearly during the Committee Stage of the Parliament
Bill. The passage of the Bill was, he said, "an indispensable
preliminary to the discussion of any grave questions in regard
to the constitution of the Second Chamber". This was, he
insisted, for a very good reason: "It is obvious that we
could not embark upon discussion on equal terms while the last
word rests with the House of Lords, and while we should be forced
after all our suggestions and resolutions have been put forward
to accept the decision of the House of Lords on all the points
which have been under discussion".[99]
16. The Prime Minister, Asquith, responded generally
to the many amendments tabled at Committee Stage to exclude a
variety of constitutional issues—including the composition
of the House of Lords—from the scope of clause 2(1).[100]
Asquith told the House of Commons that he was seeking "over
the whole sphere of legislation, power, after adequate deliberation
and delay, to carry into law with the consent of the Crown the
will of the people".[101]
17. A Conservative MP moved an amendment at the
Committee Stage in the House of Commons to exclude from section
2 any Bill "which contains any provision which affects the
Constitution of the House of Lords".[102]
The Home Secretary, Winston Churchill, opposed the amendment on
behalf of the Government on the ground that "the present
hereditary and unreformed House of Lords" should not "exercise
a final and absolute veto upon all proposals for the reconstitution
of the Second Chamber".[103]
The amendment was defeated.[104]
At the Report Stage, the House of Commons rejected an amendment
moved by George Cave (a future Lord Chancellor) which would have
required a referendum before the Bill applied to a number of constitutional
subjects, including any legislation which "affects the constitution
or powers of either House of Parliament or the relations of the
two Houses one to the other".[105]
18. There can be no doubt that the 1911 Bill
was presented to Parliament, and the relevant amendments were
rejected, on the basis that clause 2(1) would apply even to fundamental
constitutional issues, including reform of the House of Lords.[106]
It is, then, very surprising that in the Hunting Act case the
Court of Appeal stated that the extracts from Hansard which it
had seen displayed "no consensus for a view that the 1911
Act was intended to give the Commons directly or indirectly power
to change fundamentally this country's constitutional arrangements".[107]
19. The strongest argument advanced by those
who wish to restrict the ability of the House of Commons to use
section 2(1) of the Parliament Act to abolish or reform the House
of Lords without the consent of the Upper House is that the Appellate
Committee of the House of Lords accepted in the Hunting Act case
that there is at least one implied limitation to the scope of
section 2(1). So, it is argued, there can be others.
20. Section 2(1) of the 1911 Act expressly states
that it does not apply to a Bill to extend the life of a Parliament
beyond five years. Any such Bill requires the consent of the House
of Lords as well as the House of Commons. In the Hunting Act case,
a majority of the Appellate Committee said that there is an implied
limitation which prevents the House of Commons from acting in
two stages without the consent of the Lords, first by using section
2(1) to amend the Parliament Act to remove the prohibition on
the House of Commons using its powers to extend the life of Parliament
and then using the amended section 2(1) to extend the life of
Parliament beyond five years. Five of the nine Law Lords took
the view that this could not validly be done, Three others reserved
their position, and only Lord Bingham of Cornhill took the contrary
view that section 2(1) could be used to remove the restriction
in section 2(1) concerning the duration of Parliament.[108]
21. The views of the majority of the Law Lords
are supported by the Parliamentary debates on the 1911 Bill. The
House of Lords amended clause 2(1) during the Committee Stage
to add the restriction which prevents the House of Commons from
extending the life of the Parliament beyond five years without
the consent of the House of Lords.[109]
When the Bill returned to the House of Commons, the Government
conceded the point and accepted the amendment. Winston Churchill,
the Home Secretary, spoke for the Government and said that it
was "an essential and indispensable part of our proposals
for constitutional change that the life of Parliament should be
shortened". He added that the Government were "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".[110]
If Mr Churchill had said that the Government could, after the
passage of the Bill, use section 2(1) to remove this provision,
without the consent of the House of Lords, the "reassurance"
to the Conservative Opposition would have been nullified.
22. So the majority of the Appellate Committee
in the Hunting Act case was correct to say that section 2(1) impliedly
prevents the House of Commons from using that provision to remove
the limitation on the use of the powers of the House of Commons
to extend the life of Parliament without the consent of the House
of Lords.
23. Lord Hope of Craighead posed this question
in the Hunting Act case: if there is such an implied limitation
on the use of section 2(1), "how much more room is there
for other prohibitions to be implied?".[111]
The difficulty with this suggestion is that the implied limitation
in section 2(1) accepted by the majority of the Law Lords in the
Hunting Act case was based on an express provision in the
1911 Act which precludes the use of section 2(1) to extend the
duration of Parliament. So this cannot be used as an argument
to create further implied limitations on the use of section 2(1)
which are not based on anything expressly stated in section 2(1),
especially when the manifest purpose of the 1911 Act was to confer
a broad power on the House of Commons to enact fundamental constitutional
change without the consent of the House of Lords.
24. There is nothing expressly stated in section
2(1) which prohibits the use of that provision to alter the composition
of the House of Lords without its consent. But there is one other
implied limitation in section 2(1), and indeed in the 1911 Act
as a whole.
25. The House of Commons could not use section
2(1) of the 1911 Act to abolish the House of Lords without its
consent. The continuing existence of an Upper House is assumed
by the Preambles to the 1911 Act, which stated that it was "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 that such substitution "cannot be immediately
brought into operation". The continuing existence of the
House of Lords is also assumed by section 2(1) in its recognition
that the consent of the House of Lords will be required for legislation
on matters excluded from the scope of that provision. Indeed,
if it is implicit in section 2(1) that the 1911 Act cannot be
used to extend the life of Parliament, it must equally be implicit
in section 2(1) that the 1911 Act cannot be used to abolish the
Upper Chamber whose consent is needed for any Bill to extend the
life of Parliament.[112]
If Parliament wants to redefine itself by legislation which abolishes
the House of Lords, and introduces a unicameral legislature, any
such legislation could not be valid without the consent of both
Houses of Parliament.
26. The same reasoning would prevent section
2(1) of the 1911 Act being used to enact (without the consent
of the House of Lords) a referendum on the abolition of the House
of Lords, since that would (if approved by the electorate) result
in a unicameral legislature. The powers in the 1911 Act cannot
validly be used to promote that result.
27. Much more difficult is whether the House
of Commons could use section 2(1) further to reduce the delaying
powers of the Lords. During the debates on the Parliament Bill
in 1947, Emrys Hughes, a Labour backbencher, unsuccessfully proposed
reducing the delaying powers of the House of Lords to one month.
The (Labour) leader of the House of Commons, Herbert Morrison,
responded that this was "Bolshevism gone mad".[113]
Perhaps, but as a matter of law, if, as the House of Lords held
in the Hunting Act case, section 2(1) was validly used in 1949
to reduce the delaying powers to 1 year, why should the delaying
powers not be further limited? And since section 1 allowed for
Money Bills to be the exclusive preserve of the Commons, surely
section 2(1) could be used to add further topics to section 1.
Of course, at some point, a House of Lords without power is an
abolished House of Lords. But if the House of Commons were to
insist on using section 2(1) to restrict the powers of the House
of Lords so it has no delaying powers, and its consent is needed
only for a Bill to extend the life of Parliament, that would be
a valid use of section 2(1). There would remain a House of Lords
with some powers, and the 1911 Act allows the House of
Commons to insist on its opinion as to what those powers should
be.
28. So abolition of an Upper House would be inconsistent
with the purposes and terms of the 1911 Act. But a substantial
reform of the House of Lords, as the Government now proposes,
is precisely what the second Preamble to the 1911 Bill contemplated:
replacing it with "a Second Chamber constituted on a popular
instead of hereditary basis". One of the central purposes
of section 2(1) of the 1911 Act was to enable the House of Commons
to insist on reform of the House of Lords.
29. F.E. Smith (from the benches of the Conservative
Opposition) may well have been correct during the Parliamentary
debates to mock section 2(1) as rewarding the House of Commons
for "adding obstinacy to error".[114]
But the House of Commons is entitled to be obstinate, even if
it is in error, and it may use the Parliament Act to force through
its proposals for reform of the House of Lords.
27 October 2011
78 Blackstone Chambers, London; Fellow of All Souls
College, Oxford; Crossbench Peer in the House of Lords. This is
an edited version of the Birkenhead Lecture delivered in Gray's
Inn on 17 October 2011.I am very grateful to Professor Vernon
Bogdanor for helpful comments. He is not responsible for my errors
or views. Back
79
Subject to stated exceptions, considered below, the House of Lords
could only hold up a Bill for three Parliamentary sessions spread
over at least two years, if the House of Commons was determined
that it should become law. The Parliament Act 1949 reduced these
delaying powers from three to two sessions with only one year
needing to elapse. Back
80
Hansard, HL, 29 June 1911, Series 5, Volume 8, column 1186. Back
81
House of Lords Reform Draft Bill (Cm 8077, May 2011). Back
82
Hansard, HL, 7 June 2011, Volume 728, columns 137-147. Back
83
See the two day debate on the Government's proposals for reform
of the House of Lords: Hansard, HL, Volume 728, 21 June 2011 at
column 1155ff and 22 June 2011 at column 1314ff. Back
84
A.W. Bradley and K.D. Ewing Constitutional and Administrative
Law (13th edition, 2003), p.198. The current 15th edition
(2011) does not include the phrase. Back
85
R (Jackson) v Attorney General [2005] QB 579. Back
86
R (Jackson) v Attorney General [2006] AC 262. Back
87
I declare an interest: I represented the League Against Cruel
Sports, and made submissions supporting the Attorney-General in
opposing the arguments presented by the Countryside Alliance. Back
88
The other members of the Court of Appeal were Lord Phillips of
Worth Matravers, the Master of the Rolls, and Lord Justice May.
Back
89
Paragraphs 42, 45 and 99-100. Back
90
Paragraph 101. Back
91
Paragraphs 176 and 178. Back
92
Paragraph 194. Back
93
Section 2 only applies to a public Bill, not a private Bill. It
only applies to a Bill which begins in the Commons, not one which
begins in the Lords: Erskine May: Parliamentary Practice (24th
edition, 2011), p.648. Because section 2(1) only applies to a
Bill, it does not apply to secondary legislation. Back
94
See Erskine May Parliamentary Practice (24th edition, 2011) at
pp.932-933 and Companion to the Standing Orders and Guide to the
Proceedings of the House of Lords (2010 edition), paragraph 9.65. Back
95
Paragraph 29. Back
96
See Roy Jenkins Mr Balfour's Poodle (1989 edition), chapter X. Back
97
The Home Secretary, Winston Churchill, told the House of Commons
on 8 August 1911 that it was "absurd" to suggest that
the Government had made "any secret of our intention, our
consistent and original intention, to use the machinery of the
Parliament Bill for the passage of Home Rule ...": Hansard,
HC, 8 August 1911, Series 5, Volume 29, columns 989-990. See also
the comments of the Prime Minister, H.H. Asquith: Hansard, HC,
20 April 1911, Series 5, Volume 24, column 1112; and Hansard,
HC, 24 April 1911, Series 5, Volume 24, columns 1387-1394. The
Liberal government, and the Irish Nationalists, were understandably
concerned that they needed the 1911 Act to prevent such a measure
from being blocked by the House of Lords. Back
98
See R (Jackson) v Attorney General [2005] QB 579 (Court of Appeal)
at paragraph 99. Back
99
Hansard, HC, 3 April 1911, Series 5, Volume 23, columns 1894-1895.
F.E. Smith had complained that the Bill, if enacted, would enable
the Government to alter "the very instruments of Government
which we are told is to be the only security left in the Bill":
column 1929. Winston Churchill, the Home Secretary, responded
that the 1911 Bill was not "the final settlement". The
Government would, in due course, "submit to the delaying
powers of the Lords" a measure for reform of the composition
of the Second Chamber: Hansard, HC, 22 February 1911, Series 5,
Volume 21, columns 2035-2036. Back
100
They included, the 1689 Bill of Rights, the Habeas Corpus Act,
the Acts of Union with Scotland and Ireland, the Civil List, the
administration of justice, and any amendment to the 1911 legislation,
Back
101
Hansard, HC 20 April 1911, Series 5, Volume 24, columns 1103-1112. Back
102
Hansard, HC, 24 April 1911, Series 5, Volume 24, column 1507. Back
103
Hansard, HC, 24 April 1911, Series 5, Volume 24, column 1510. Back
104
Hansard, HC, 24 April 1911, Series 5, Volume 24, column 1518. Back
105
Hansard, HC, 8 May 1911, Series 5, Volume 25, columns 915-978.
Back
106
Lord Cooke of Thorndon suggested in "A Constitutional Retreat"
(2006) 122 LQR 224, 228-a comment on the Jackson case-that it
is necessary to be especially careful about the use of Hansard
as an aid to interpretation under the principle in Pepper v Hart
[1993] AC 593 when the relevant references come from debates in
the House of Commons, which was in conflict with the House of
Lords on the matters in dispute. But nothing was said in the House
of Lords' debates to suggest that clause 2(1) was understood as
not applying to reform of the House of Lords. Back
107
Paragraph 48. Back
108
See Lord Nicholls of Birkenhead at paragraphs 58-59; Lord Steyn
at paragraph 79; Lord Hope of Craighead at paragraphs 118 and
122-124; Baroness Hale of Richmond at paragraph 164; and Lord
Carswell at paragraph 175. Lord Rodger of Earlsferry reserved
his position at paragraph 139, as did Lord Brown of Eaton-under-Heywood
at paragraph 194. Lord Walker of Gestingthorpe said this was an
issue which did not need to be resolved: paragraph 141. See also
the judgment of the Court of Appeal at paragraphs 40-41. Lord
Bingham of Cornhill was in a minority on this issue at paragraph
32. Back
109
Hansard, HL, 3 July 1911, Series 5, Volume 9, columns 6-12. Back
110
Hansard, HC, 8 August 1911, Series 5, Volume 29, columns 1094-1095. Back
111
Jackson at paragraphs 122-124. Lord Hope of Craighead found the
argument "not unattractive", but did not consider it
further because, he said, it could not be used to undermine the
amendments made by the 1949 Act because of what he described as
the "political reality" of their acceptance. Back
112
See Peter Mirfield (1979) 95 Law Quarterly Review 36, 53-56. In
Jackson at paragraph 42, the Court of Appeal stated that because
the purpose of the 1911 Act was "to establish a new constitutional
settlement" which restricted the powers of the House of Lords
but preserved its role in the legislative process, "it would
be in conflict with the 1911 Act for it to be used as an instrument
for abolishing the House of Lords". Back
113
Hansard, HC, 4 December 1947, Series 5, Volume 445, columns 629
and 634: cited in Vernon Bogdanor The New British Constitution
(2009), p.148. Back
114
Hansard, HC, 30 March 1910, Series 5, Volume 15, column 1309. Back
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