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Judgments - Jackson and others (appellants) v. Her Majesty's Attorney General (Respondent)

HOUSE OF LORDS

SESSION 2005-06

[2005] UKHL 56

on appeal from: [2005] EWCA Civ 126

 

OPINIONS

OF THE LORDS OF APPEAL

for judgment IN THE CAUSE

 

 

Jackson and others (Appellants) v. Her Majesty's Attorney General (Respondent)

 

Appellate Committee

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

 

Counsel

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)

 

Interveners:

League against Cruel Sports

David Pannick QC

Gordon Nardell

(Written intervention)

(Instructed by Collyer-Bristow)

 

 

Hearing dates:

13 and 14 July 2005

 

on

Thursday 13 OCTOBER 2005

 

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,

    1.  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.

    2.  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

    3.  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

    4.  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

    5.  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 …"

    6.  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.—

      (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.

      2.—

      (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.

    4.—

    (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

    7.  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.

    8.  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

    9.  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.

    10.  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.

    11.  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).

    12.  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).

 
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