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

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    97.  The Court of Appeal made extensive use of materials from Hansard. If it were necessary to do so, I would be inclined to hold that the time has come to rule, as Lord Hope of Craighead apparently did in R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, that Pepper v Hart [1993] AC 593 should be confined to the situation which was before the House in Pepper v Hart. That would leave unaffected the use of Hansard material to identify the mischief at which legislation was directed and its objective setting. But trying to discover the intentions of the Government from Ministerial statements in Parliament is constitutionally unacceptable. That was the submission made by Sir Sydney. If it were necessary to rule on the matter I would be inclined to accept the submission.

    98.  I am content, however, in this case to judge the use made by the Court of Appeal of Hansard materials by the strict criteria of Pepper v Hart: R (Jackson) v Attorney General [2005] QB 579, paras 73-87. Sir Sydney subjected the reliance on references in Hansard to detailed criticism. Having taken into account the contrary submissions of the Attorney General my view is that the present case does not satisfy the requirements of Pepper v Hart. In the first place the legislation is not obscure or ambiguous. No member of the House has come to a different conclusion on this point. It follows that the principle in Pepper v Hart is inapplicable. In any event, the references to Hansard contain no important indications on the very point in issue. Alternatively, if it is right to admit such material, I would hold that its weight is minimal and cannot possibly prevail over the words used by the Parliamentary text.

    XV. The post 1911 history.

    99.  The Court of Appeal further relied on the history after 1911: paras 88-97. Lord Woolf CJ, observed (in para 97):

    "These are cogent examples of the general recognition by Parliament, the Queen, the courts and the populace, that the 1949 Act was a proper exercise of sovereign legislative power and that the same is true of legislation enacted pursuant to the provisions of the 1949 Act. . . .

    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."

So far as it may be necessary to do so, I deal with the points mentioned in the first sentence in reverse order. I cannot accept that "the populace" manifested the general recognition attributed to it. The courts, which have not been faced with an issue on the point, have not expressed the view ascribed to them. Moreover, the Queen, who as a constitutional Monarch acts in such matters on the advice of the government, has not made known her recognition of the asserted fact. And, beyond the relevant legislative texts, Parliament has not spoken. This does not, however, mean that I question that, in the language of Kelsen, political events may create for a state, and a legal system, a new grundnorm. That is a truism but not relevant in the present case.

XVI. The consequences of the decision.

    100.  The Administrative Court did not comment on the drastic implications of its decision. Rightly, the Court of Appeal was intensely aware of the consequences of its decision. That is the context in which the Court of Appeal held that abolishing the House of Lords would be a constitutional change so fundamental that it could only be enacted by Parliament as ordinarily constituted and not by the attenuated process: paras 98-100.

    101.  The potential consequences of a decision in favour of the Attorney General are far-reaching. The Attorney General said at the hearing that the government might wish to use the 1949 Act to bring about constitutional changes such as altering the composition of the House of Lords. The logic of this proposition is that the procedure of the 1949 Act could be used by the government to abolish the House of Lords. Strict legalism suggests that the Attorney General may be right. But I am deeply troubled about assenting to the validity of such an exorbitant assertion of government power in our bi-cameral system. It may be that such an issue would test the relative merits of strict legalism and constitutional legal principle in the courts at the most fundamental level.

    102.  But the implications are much wider. If the Attorney General is right the 1949 Act could also be used to introduce oppressive and wholly undemocratic legislation. For example, it could theoretically be used to abolish judicial review of flagrant abuse of power by a government or even the role of the ordinary courts in standing between the executive and citizens. This is where we may have to come back to the point about the supremacy of Parliament. We do not in the United Kingdom have an uncontrolled constitution as the Attorney General implausibly asserts. In the European context the second Factortame decision made that clear: [1991] 1 AC 603. The settlement contained in the Scotland Act 1998 also point to a divided sovereignty. Moreover, the European Convention on Human Rights as incorporated into our law by the Human Rights Act, 1998, created a new legal order. One must not assimilate the ECHR with multilateral treaties of the traditional type. Instead it is a legal order in which the United Kingdom assumes obligations to protect fundamental rights, not in relation to other states, but towards all individuals within its jurisdiction. The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. It is not necessary to explore the ramifications of this question in this opinion. No such issues arise on the present appeal.

XVII. Disposal.

    103.  I would dismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

    104.  I start where my learned friend Lord Steyn has just ended. Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.

    105.  For the most part these qualifications are themselves the product of measures enacted by Parliament. Part I of the European Communities Act 1972 is perhaps the prime example. Although Parliament was careful not to say in terms that it could not enact legislation which was in conflict with Community law, that in practice is the effect of section 2(1) when read with section 2 (4) of that Act. The direction in section 2(1) that Community law is to be recognised and available in law and is to be given legal effect without further enactment, which is the method by which the Community Treaties have been implemented, concedes the last word in this matter to the courts. The doctrine of the supremacy of Community law restricts the absolute authority of Parliament to legislate as it wants in this area. This plainly is how the matter would be viewed in Luxembourg: see Professor David Feldman, None, One or Several? Perspectives on the UK's Constitution(s) [2005] CLJ 329, 346-347; see also, for the practical effects in this country, R v Secretary of State for Transport, Ex p Factortame Ltd (No 2) [1991] 1 AC 603. Section 3(1) of the Human Rights Act 1998 has introduced a further qualification, as it directs the courts to read and give effect to legislation in a way that is compatible with the Convention rights. So long as it is possible to do so, the interpretative obligation enables the courts to give a meaning to legislation which is compatible even if this appears to differ from what Parliament had in mind when enacting it.

    106.  It has been suggested that some of the provisions of the Acts of Union of 1707 are so fundamental that they lie beyond Parliament's power to legislate. Lord President Cooper in MacCormick v Lord Advocate, 1953 SC 396, 411, 412 reserved his opinion on the question whether the provisions in article XIX of the Treaty of Union which purport to preserve the Court of Session and the laws relating to private right which are administered in Scotland are fundamental law which Parliament is not free to alter. Nevertheless by expressing himself as he did he went further than Dicey, The Law of the Constitution, 10th ed (1959), p 82 was prepared to go when he said simply that it would be rash of Parliament to abolish Scots law courts and assimilate the law of Scotland to that of England. In Gibson v Lord Advocate, 1975 SC 136, 144, Lord Keith too reserved his opinion on this question and as to the justiciability of legislation purporting to abolish the Church of Scotland. In Pringle, Petitioner, 1991 SLT 330, the First Division of the Court of Session again reserved its position on the effect of the Treaty of Union in a case which had been brought to challenge legislation which introduced the community charge in Scotland before it was introduced in England. But even Dicey himself was prepared to recognise that the statesmen of 1707 believed in the possibility of creating an absolutely sovereign legislature which should yet be bound by unalterable laws: Thoughts on the Scottish Union, pp 252-253, quoted by Lord President Cooper in MacCormick at p 412. So here too it may be said that the concept of a Parliament that is absolutely sovereign is not entirely in accord with the reality.

    107.  Nor should we overlook the fact that one of the guiding principles that were identified by Dicey at p 35 was the universal rule or supremacy throughout the constitution of ordinary law. Owen Dixon, "The Law and Constitution" (1935) 51 LQR 590, 596 was making the same point when he said that it is of the essence of supremacy of the law that the courts shall disregard as unauthorised and void the acts of any organ of government, whether legislative or administrative, which exceed the limits of the power that organ derives from the law. In its modern form, now reinforced by the European Convention on Human Rights and the enactment by Parliament of the Human Rights Act 1998, this principle protects the individual from arbitrary government. The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. The fact that your Lordships have been willing to hear this appeal and to give judgment upon it is another indication that the courts have a part to play in defining the limits of Parliament's legislative sovereignty.

    108.  Dicey at pp 47-48 said that the Septennial Act 1715 by which the legal duration of Parliament was extended from three to seven years, and by which an existing Parliament by its own authority prolonged its own existence, was at once the result and the standing proof of Parliamentary sovereignty. No-one doubts, of course, that it was open to Parliament to restrict its maximum duration to five years, which is the current rule: see section 7 of the Parliament Act 1911. But what are we to make of the fact that the restriction of the powers of the House of Lords which is set out in section 2(1) of that Act is expressly stated not to apply to a Money Bill and, more importantly, to a Bill containing any provision to extend the maximum duration of Parliament beyond five years. Is this to be regarded simply as a self-denying ordinance? Or is this another instance where Parliament has conceded the last word as to what it can do to the courts? And if it is the latter, how much further can the courts go in controlling the use of the procedure that section 2(1) has enacted? These are the questions that lie at the heart of this appeal.

    109.  It is as well that I should stress however, before I go further, that this case is not about a contest between the courts and the executive. The Bill which has become the Hunting Act 2004 was a concession by the government to prolonged and vigorous pressure from its own back benchers, notably Mr Tony Banks MP. It commanded a large majority in the House of Commons. The Speaker then took his own decision to endorse the Bill with his certificate under section 2(2) of the 1911 Act. This enabled the Bill to be presented for the Royal Assent to Her Majesty - although, by a curious twist of circumstances, it was in the House of Lords that the Royal Assent was declared to both Houses together by the Lords Commissioners under the procedure that applied immediately before Parliament was prorogued on 18 November 2004: see Erskine May, Parliamentary Practice, 23rd ed (2004), p 653. The Speaker was not directed to endorse the Bill by the executive. He was asserting the right of the House of Commons to get its measure through in the face of repeated refusals by the House of Lords to give its assent to it. What this case is about therefore is the place which the court occupies in our constitution with regard to the legislative sovereignty of Parliament.

Is there a justiciable issue?

    110.  The Attorney General said that it was for the elected legislature to have the final say in all matters of legislation. But he has not disputed that the courts can properly adjudicate on the issue raised in this appeal. In the Divisional Court Maurice Kay LJ said that he was wise not to do so: [2005] EWHC 94 (Admin), para 12. Doubt was cast on his position by the Court of Appeal. It said that the Attorney General had given no convincing answer to its question whether the issue was justiciable: [2005] QB 579, para 11. The answer which was given was that there was no absolute rule that the courts could not consider the validity of a statute and that the issue as to the validity of the Hunting Act 2004 was one of statutory interpretation. For my part I would regard this as a sufficient explanation for the position that the Attorney General has taken. It is reinforced by an examination of sections 3 and 4 of the 1911 Act. Section 3 provides that any certificate of the Speaker of the House of Commons given under the Act shall be conclusive for all purposes, and shall not be questioned in any court of law. The fact that this provision was enacted at all is an indication that Parliament itself appreciated that the question whether a Bill passed by the House of Commons alone was to receive effect as an Act of Parliament was in the final analysis one for the courts. As my noble and learned friend Lord Bingham of Cornhill has said, for the courts to entertain this question involves no breach of constitutional propriety. The words "in accordance with the provisions of the Parliament Act 1911 and by authority of the same" which appear in the preamble to the 1949 Act, as directed by section 4 of the 1911 Act, provide courts with an issue that is justiciable.

    111.  The debate as to whether the Parliament Act 1949 is a species of delegated legislation, as Sir Sydney Kentridge QC submitted, did not seem to me to be helpful in these circumstances. It is easy to see why a measure which purports to have been enacted in accordance with and with the authority of the 1911 Act cannot be described as delegated legislation, despite the support which, contrary to the position adopted by Professor de Smith, Professor Sir William Wade and Professor Hood Phillips gave to this argument: Constitutional Fundamentals, (1980), pp 27-28. It is declared by section 2(1) of the 1911 Act that a Bill which has undergone the procedure that it describes, on the Royal Assent having been signified thereto, shall become an Act of Parliament. The status which is given to it is the antithesis of delegated legislation, the hallmark of which is that it is subordinate to legislation which has been enacted by Parliament. It is primary legislation, albeit enacted in a way that is different.

    112.  But it does not follow from a rejection of this part of Sir Sydney's argument that the 1949 Act is immune from judicial scrutiny. It is enough for his purposes that the power of enactment on which the purported Act of Parliament relies is derived not from the common law but from another statute. If that is the case it is essential to the validity of the measure which purports to have been so enacted that it should indeed be what it purports to be. A document on the Parliamentary Roll is conclusive as to its validity as an Act if it shows on its face that everything has been done which the common law of the United Kingdom has prescribed for the making of an Act of Parliament - that the Queen, the Lords and the Commons have assented to it: The Prince's Case (1606) 8 Co Rep 1a, at p 505. All the court can do is look to the Parliamentary Roll. If it appears to have passed both Houses and received the Royal Assent that is the end of the inquiry, as Lord Campbell explained in Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl & F 710, 724-725. But an Act passed under the 1911 Act does not measure up to that test. The enacting words "carry its death's wound in itself", as it was put in R v Countess of Arundel (1617) Hobart 109, 111; 80 ER, at p 260, in the second paragraph. This is not to say that the law may not be changed by a measure passed by one House of Legislature alone if this has been provided for by Parliament. But the common law does not say that the mere fact that such a measure asserts that it is such a measure is conclusive as its validity.

    113.  Nor does it seem to me to be helpful, against this background, to describe the 1911 Act as having remodelled or re-defined Parliament. The concept is not an easy one to grasp, because it is a fundamental aspect of the rule of sovereignty that no Parliament can bind its successors. There are no means by whereby, even with the assistance of the most skilful draftsman, it can entrench an Act of Parliament. It is impossible for Parliament to enact something which a subsequent statute dealing with the same subject matter cannot repeal. But there is no doubt that, in practice and as a matter of political reality, the 1911 Act did have that effect. As its long title states, it made provision with respect to the powers of the House of Lords in relation to those of the House of Commons. It did what it was designed to do. It has limited the power of the House of Lords to legislate. In practice it has altered the balance of power between the two Houses.

    114.  In his introduction to the 10th edition (1959) of Dicey's The Law of the Constitution, p xcvi, Professor E C S Wade said that it was difficult to assess the validity of Dicey's conclusion that the Act greatly increased the share of sovereignty possessed by the House of Commons so long as the House of Lords of its own accord accepted the rule that it is not entitled to reject legislation which has been passed by the House of Commons. At pp clxix-clxx he noted that, as from 1915 to 1945 coalition or national governments held office for the greater part of the time, the causes which produced this type of government were unlikely to produce the conditions which would lead to a conflict between the two Houses. More recent experience of governments elected by a substantial majority has created the conditions for this conflict. The way the House of Lords has reacted to this situation suggests that the sovereignty of the elected House has indeed been strengthened, despite the fact that since the change its composition by the exclusion of hereditary peers by section 1 of the House of Lords Act 1999 the House of Lords has tended to be more vigorous in its opposition to legislation of which it disapproves.

    115.  Nevertheless the question still remains whether a measure which purports to have been passed into law under the procedure, and for that reason to be an Act of Parliament, is what it bears to be. The House of Commons, acting alone, has no inherent power to legislate. The only power which it has to legislate on its own is that described in section 2(1).

    116.  The certificate of the Speaker under section 2(2) that the provisions of that section have been duly complied with cannot be questioned. That settles the issue as whether the procedure that the section sets out has been complied with. In the words of Professor J D B Mitchell, Constitutional Law, 2nd ed (1968), p 150, such matters of parliamentary procedure are reserved for decision by parliamentary machinery. But it does not settle the issue as to whether the Act can be said to have been presented to Her Majesty by authority of the 1911 Act. As Professor Denis V Cowen has suggested, the conclusiveness of a Speaker's certificate under this Act relates only to what it properly certifies: "Legislature and Judiciary" (1953) 16 MLR 273, 279, footnote 29. There remains the question what the 1911 Act has authorised, and this includes the question mentioned by Professor Cowen in the same footnote as to whether the Speaker could competently give a certificate under that Act if an attempt were to be made to prolong the life of Parliament beyond five years by legislation without the consent of both Houses. This is a question which has to be resolved upon a proper interpretation of the words used in section 2(1). This is a question of law for the courts, not for Parliament. Indeed, as Professor E C S Wade put it in his introduction to Dicey, pp xlvii-xlviii, by asserting their jurisdiction in this matter the courts can say that they are applying the express will of Parliament.

Are there limits to the use of section 2(1)?

    117.  The procedure which section 2(1) of the 1911 Act prescribes is available, as its opening words declare, in the case of

    "any Public Bill (other than a Money Bill or a Bill containing any provision to extend the maximum duration of Parliament beyond five years)"

The words in parenthesis indicate that, whatever else the procedure that section 2(1) authorises, it does not extend to Bills which are Money Bills or to Bills extending the maximum duration of Parliament.

    118.  The exception in favour of Money Bills is explained by the fact that Money Bills are dealt separately in section 1. It would make no sense for the section 2(1) procedure to be used in their case. This is not a matter that need concern the courts. The exception in favour of Bills extending the maximum duration of Parliament falls into a different category. The Act does not provide a separate procedure for use in their case. The effect of this exception is that Bills of this kind require the consent of both Houses before they can pass into law. It is hard to imagine that such a measure that had not been passed by the House of Lords would receive the Speaker's certificate, without which it could not be presented for the Royal Assent to Her Majesty. But if it did, I think that it is clear that the court would have jurisdiction to declare that it was not authorised by section 2(1). I am in full agreement with what my noble and learned friends Lord Nicholls of Birkenhead, Lord Steyn and Baroness Hale of Richmond have said on this issue.

    119.  Beyond this point the argument that there are limits on what can be done under section 2(1) which are legal and not political runs into difficulty. I mention limits which are political here because, as Professor E C S Wade pointed out in his introduction to the 10th edition of Dicey, p xxvii, the Parliament Acts of 1911 and 1949 cannot be understood without reference to their political background. Lord Bingham has provided your Lordships with a valuable account of the constitutional background to the 1911 Act and its historical context, but for present purposes I would suggest that the political effects that resulted from what was done in 1911 and in 1949 are no less important. At p lxiii of his introduction Professor Wade said that the abdication of power - which is what the House of Lords agreed to in 1911 - is at least as much a political as a legal event, and that it is only by accepting the political change which it has brought about that the courts can recognise the legality of the new situation.

    120.  Professor Sir William Wade, too, observed that sovereignty is a political fact for which no purely legal authority can be constituted even though an Act of Parliament is passed for the very purpose of transferring sovereign power: "The Basis of Legal Sovereignty" [1955] CLJ 172, 196. The open texture of the foundations of our legal system which Professor H L A Hart discusses in Chapter VI of The Concept of Law (1961), especially at pp 107-114, defies precise analysis in strictly legal terms. More recently other commentators have asserted that the rule of Parliamentary supremacy is ultimately based on political fact: Peter Mirfield, "Can the House of Lords Lawfully be Abolished?" (1979) 95 LQR 36, 42-44; George Winterton, "Is the House of Lords Immortal?" (1979) 95 LQR 386, 388. It is sufficient to note at this stage that a conclusion that there are no legal limits to what can be done under section 2(1) does not mean that the power to legislate which it contains is without any limits whatever. Parliamentary sovereignty is an empty principle if legislation is passed which is so absurd or so unacceptable that the populace at large refuses to recognise it as law.

    121.  The Attorney General was willing to accept that the words in parenthesis set limits to the use of the section 2(1) procedure, but he maintained that these express limitations did not harm his argument. Where limits were expressed, he said, there was no room for other limitations to be implied. If what has been done is legislation within the general scope of the words which give power to legislate, and it violates no express condition or restriction by which that power is limited, it is not for any court to inquire further or to enlarge these conditions or restrictions: per Lord Selborne, giving the judgment of the Board in R v Burah (1878) 3 App Cas 889, 905.

    122.  There is obvious force in this argument, but I do not think that the matter is as clear cut as he suggested. I would not go so far as to say that the stated limitations rule out limitations which are unstated. If that was the case, there would be no answer to the most obvious abuse of section 2(1). This, as Lord Nicholls has pointed out, is a two-stage approach to extending the life of Parliament. First, a Bill would be introduced deleting the reference in that subsection to a Bill containing any provision to extend the life of Parliament. A Bill which sought to do this would not be within the terms of the prohibition. Then, a second Bill would be introduced, to run in tandem with the first, which sought to do what the provision which was to be deleted would have prohibited. So long as the first Bill passed into law before the second Bill was presented for the Royal Assent, so the argument would run, it could not be said to be a Bill that section 2(1) of the 1911 Act did not authorise. But I believe, in agreement with a majority of your Lordships, that such an obvious device to get round the express prohibition would be as vulnerable to a declaration of invalidity as a direct breach of it. In other words, there is an implied prohibition against the use of the section 2(1) procedure in such circumstances.

 
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