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

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    33.  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.

    34.  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."

    35.  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.

    36.  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

    37.  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

    38.  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

    39.  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.

    40.  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.

    41.  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,

    42.  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.

    43.  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.

    44.  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.

    45.  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

    46.  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.

    47.  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.

    48.  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

    49.  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'.

    50.  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'.

    51.  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

    52.  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.

    53.  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.

    54.  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

    55.  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]'

    56.  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.

    57.  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.

    58.  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.

    59.  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.

    60.  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.

    61.  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.

    62.  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'

    63.  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.

    64.  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

    65.  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.

    66.  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

    67.  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.

 
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