Lord Goldsmith QC
1. I regret that professional commitments overseas
mean that I am unable to attend in person the hearing of the Joint
Committee on the drafts House of Lords Reform Bill. I have prepared
the following summary response to represent the oral evidence
I would have given.
2. The Committee has expressed interest in my
views on two questions:
a) Whether the Parliament Acts could be used
to enact the draft House of Lords Bill without the assent of the
House of Lords;
b) Whether there is any reason why the Parliament
Acts could not be used by the House of Commons to enact legislation
without the assent of the House of Lords if the House of Lords
were to be elected .
QUESTION A; COULD THE PARLIAMENT ACTS BE USED TO
PASS THE DRAFT LEGISLATION WITHOUT THE ASSENT OF THE HOUSE OF
LORDS
3. This question raises the issue whether the
draft House of Lords Reform Bill (or similar legislation) could
become law if passed using the provisions of, and in accordance
with the provisions set out in, the Parliament Acts 1911—1949
without the assent of the House of Lords. In other words could
the House of Commons force through that legislation against the
will of the House of Lords by following the procedures in the
Parliament Acts.
4. In my view the answer is yes. This issue
was, I believe, resolved by the decision of the House of Lords
in R (Jackson & Others) -v- the Attorney General [2005] UK
HL56.
5. This case, also known as the Hunting case
arose in the following circumstances. The Hunting Act 2004 which
outlawed hunting with dogs received the Royal Assent in November
2004. It had been enacted without the assent of the House of Lords
pursuant to Section 2 of the Parliament Act 1911 as amended by
the Parliament Act 1949. The Parliament Act 1949 passed by the
post-war Labour Government had reduced the period of delay required
between successive presentations of a Bill, and the number of
those presentations, before the assent of the House of Lords could
be dispensed with. The historical context of both Parliament Acts
will be very familiar to the Committee and I will not therefore
repeat it.
6. The 1949 Act had been passed using the provisions
of the 1911 Act. The issue raised in the Hunting Act case was
whether the 1949 Act could legitimately have been passed using
the 1911 Act so as to amend itself. The claim was brought by supporters
of the Countryside Alliance who opposed of course the Hunting
Act. They argued on a variety of arguments that it was incompetent
for the House of Commons to use the 1911 Act to amend the very
Act itself. Rather they argued it was necessary to have the assent
of the House of Lords to amend the1911 Act. They therefore sought
a declaration that the Hunting Act, having been passed without
the assent of the Lords but not in accordance with the original
Parliament Act conditions, was not an Act of Parliament and therefore
of no legal effect.
7. As well as being the nominal Defendant on
behalf of the Government I argued the case before the three courts
who heard the case: the Divisional Court (Maurice Kay LJ and Collins
J); the Court of Appeal (Lord Woolf CJ, Lord Phillips of Worth
Matravers MR and May LJ) and a 9 judge panel of the House of Lords
(Lords Bingham of Cornhill, Nicholls of Birkenhead, Hope of Craighead,
Rodger of Earlsferry, Walker of Gestingthorpe, Baroness Hale of
Richmond and Lords Carswell and Brown of Eaton-under-Heywood.
Each of the three courts rejected the Claimants' case and held
that the Hunting Act was valid, though for somewhat different
reasons.
8. What is particularly relevant for present
purposes is that the argument included consideration not merely
of the various arguments raised by the Claimants as to the nature
of legislation passed under the Parliament Acts but also focussed
on what limits, if any, there would be on the sort of legislation
which could be passed using the Parliament Acts. In particular
it was argued that the Acts could not be used to pass constitutional
legislation or at least some sort of constitutional legislation.
This was an issue that particularly in the Court of Appeal was
tested by asking whether the Parliament Acts could be used to
abolish the bicameral system altogether.
9. The decision of the House of Lords, in my
view, clearly shows that the Acts may, as a matter of law, be
used to effect changes to the composition of the House of Lords
without their assent. Whether it would be politically or constitutionally
desirable to do so is of course a different matter.
10. Though the members of the panel gave differing
reasons for their decision all upheld the validity of the 1949
Act and therefore of the Hunting Act. I believe that the essence
of the decision at least of the majority is that as a matter of
construction set in the historical and constitutional context
the Parliament Acts created a new and parallel method of enacting
legislation so long as the express conditions laid down were complied
with. It was not the case that there was some implied exclusion
for constitutional legislation; indeed part of the very purpose
of the 1911 Act was to legislate for Home Rule in Ireland and
the disestablishment of the Anglican Church in Wales—both
very important constitutional issues; and an amendment to make
some carve out for important constitutional change had been rejected.
Rather by passing the 1911 Act Parliament had ordained that "any
Public Bill" ( the words of Section 2) introduced could become
an Act of Parliament and the words "any Public Bill"
were to be read in their plain and broad meaning. Accordingly
except for the express exceptions in the 1911 Act, in particular
the prohibition on using the Act to extend the life of Parliament
beyond 5 years, there was no limitation on the nature of the Bill
which could be enacted in this way.
11. It would follow that an Act to change the
composition of the House of Lords would clearly be a lawful and
effective enactment if enacted using the Parliament Acts.
12. I am aware that some argue that the decision
does not rule out the possibility of any limitation, for example,
a limitation on abolition of the House of Lords itself. This argument
is based on certain dicta in the case and the fact that the majority
ruled that the Act could not be used to extend the duration of
Parliament. It is not, however, necessary to examine that argument
as any such limitation must be of very narrow ambit and could
not apply to a change which dealt solely with the composition
of the House.
QUESTION B; COULD THE PARLIAMENT ACTS BE USED IN
RELATION TO AN ELECTED HOUSE OF LORDS
13. The second issue is whether the Parliament
Acts could still be used in the same way in relation to a wholly
or partly elected House of Lords as in relation to the present
House.
14. The White Paper and draft Bill proceed on
the basis that the existing situation would continue—this
would be enshrined in Section 2 of the draft Bill which intends
to provide that the changes will not affect the existing status.
Nonetheless the assumption is explicitly that the Parliament Acts
will continue to operate even if and when the House of Lords became
an elected chamber (see the White Paper). If that assumption is
not sound then it affects the way the legislation proceeds.
15. To my mind there appears to be at least a
very strong argument that the Acts were not intended to operate
in such circumstances.
16. In the historical context, the purpose of
the Parliament Acts was fundamentally that they were passed in
order to restrict the powers of an unelected House of Lords against
the elected House of Commons. This follows from what we all know
to be the case but it is most fully explored in the speeches in
the House of Lords in Jackson v AG and particularly by
Lord Bingham of Cornhill at paragraphs 8-10 in particular and
Baroness Hale especially at paragraph 156. It is worth setting
out that latter paragraph:
"The history is important because it demonstrates
clearly the mischief which the 1911 Act was meant to cure. The
party with the permanent majority in the unelected House of Lords
could forever thwart the will of the elected House of Commons
no matter how clearly that will had been endorsed by the electorate.
At that time this could not be called a necessary or even desirable
check on the over weaning power of a government which had the
command of the House of Commons because there was no equivalent
check on the party which had the command of the House of Lords.
The object was henceforth to ensure that the elected House could
always get its way in the end. The United Kingdom would become
a real democracy. The democratic element was reinforced by the
reduction of the maximum length of a parliament from 7 years to
5 and the exception of a Bill to prolong the life of parliament
from the 1911 Act procedure. The elected Chamber would have to
submit itself to re-election at regular intervals." [emphasis
added]"
17. Examination in more detail (as described
by Lord Bingham and Lady Hale) of the historical context of the
passage of the Parliament Acts and the resolutions passed by the
House of Commons before them would demonstrate very clearly this
point. In this connection it is worth recalling that the problem
was as Roy Jenkins noted in Asquith 1964, 1967 paperback edition
page 187 quoted by Baroness Hale at paragraph 144 of Jackson)
"It quickly became clear that the opposition leaders in
both Houses were prepared to accord no real primacy to the elected
Chamber."
18. This would lead to the proposition that the
Parliament Acts were intended to apply only to the state of an
essentially unelected House and were not intended to survive the
creation of an elected House. That proposition indeed appears
clearly from the terms of the recitals to the 1911 Act which are
as follows:
... "Whereas it is expedient that provision
should be made for regulating the relations between the two House
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:"
19. The clear intendment of these words is that
parliament (and it was the whole of parliament which passed the
1911 Act) did not intend that the provisions of the Act would
apply to "a second Chamber constituted on a popular …
basis." Further the Act clearly contemplated that when
that came about it would be for the legislation at the time to
make provisions "for limiting and defining the powers
of the new second Chamber."
20. The question that arises is what the implications
for the draft Bill would be of these considerations. I consider
there to be three:
21. First, these considerations would at the
very least provide to the new and elected House of Lords a moral
justification for declining to give way to the House of Commons.
It is unlikely, in my view, that any justification would in fact
be needed because the elected member of the House of Lords would
regard his or her own position as one which has democratic legitimacy
and carrying a right therefore to oppose legislation he or she
disagrees with. But these considerations would put to rest any
argument that in failing to give way to the Commons was unconstitutional.
22. Secondly, there is a legal route by which
effect could be given to that intention by holding, in accordance
with a principle sometimes though not invariably applied that
legislation must be interpreted in the context of the conditions
at the time of its enactment, that the words "House of Lords"
which appear in the operative sections of the Parliament Acts
only refer to the House of Lords in its unelected form and that
once it became an elected (or substantially elected) Chamber it
was no longer the same "House of Lords" and therefore
the provisions of the Parliament Acts would not apply to it.
23. This legal principle is not invariably applied
—as explained by Lord Bingham of Cornhill in R (Quintavalle
v Secretary of State for Health [2003] UKHL 13 at para 22- but
this is likely to be a case where the principle would be appropriate
to be applied.—see para 23 of the same case. See also the
Australian case: the High Court of Australia Corporate Affairs
Commission (NSW) v Yuill [1991] HCA28: (1991) 172 CLR 319
24. Whilst the application of this principle
may be uncertain in the context of this Bill and the precise way
the Parliament Acts operate this does at least give rise to doubt
that the Parliament Acts, or at least all their provisions, would
apply in the absence of clear Parliamentary enactment to that
effect.
25. Thirdly, whilst it would be open to Parliament
to legislate now to make clear that the Parliament Acts should
operate in the same way in relation to an elected House the vague
and general provisions of the proposed Section 2 including Section
2(1)(b) do not seem to me adequate for that purpose.
26. It is further my view, based on my experience
as a member of the House of Lords and one time minister that the
House of Lords is far more frequently persuaded to accept the
Commons' view by acceptance of the argument that it (the Commons)
has the democratic mandate, and the Lords has not, than by a belief
that the Parliament Acts will be invoked. Irrespective of the
strict application of those Acts the effect of having an elected
House will radically change the relationship between the two Houses.
8 January 2012
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