Constitutional aspects of the challenge
to the Hunting Act 2004
INTRODUCTION
1. On 3 December 2002, the Government introduced
a bill to allow licensed hunting. The House of Commons passed
an amendment proposing to ban hunting entirely, but the bill did
not complete all its stages in the House of Lords before the end
of the session.[1]
The bill was reintroduced to the House of Commons on 9 September
2004 and received Royal Assent as the Hunting Act 2004 on 18 November
2004, when the House of Commons invoked the Parliament Acts after
refusing to accept amendments made in the House of Lords.
2. In the light of the controversy surrounding
the passage of the legislation, we invited Professor Rodney Brazier[2]
to provide us with an authoritative account of the genesis, main
provisions and use of the Parliament Acts, including recent proposals
for their legislative reform (as for example were considered by
the Wakeham Commission on House of Lords reform[3]),
and a discussion of any conventions or practices with regard to
their use that may have emerged. We asked that the paper should
not be based on original research but should aim to draw together
in a single document relevant material already available. The
result of Professor Brazier's work is at Appendix 1.
3. An attempt by pro-hunting groups to challenge
the Hunting Act by questioning the legality of the Parliament
Act 1949 failed in the Administrative Court (28 January 2005)
and the Court of Appeal (8 February 2005). The ban took effect
on 18 February 2005. The appeal from the Court of Appeal was argued
before the Appellate Committee of the House of Lords ("the
Law Lords") in July 2005 and the Committee rejected the appeal
in a ruling on 13 October 2005.[4]
4. Professor Anthony Bradley[5],
who was the Constitution Committee's legal adviser until 31 December
2005, provided us with analyses of the decisions of the Administrative
Court and the Court of Appeal in rejecting the challenge to the
validity of the Hunting Act 2004, and of the reasons given by
the Law Lords. His first paper concluded that, unlike the Administrative
Court's decision, the reasons for the decision given by the Court
of Appeal raised difficult and potentially far-reaching questions
about the Parliament Acts 1911-1949 and the use of those Acts
in making future constitutional changes. His second paper concluded
that, while the nine Law Lords were unanimous in preferring the
reasons for the decision given by the Administrative Court to
those given by the Court of Appeal, the individual judgments contain
many observations on the Parliament Acts 1911-1949 which are of
constitutional interest, particularly in regard to the making
of further reforms relating to the House of Lords and the relationship
between the two Houses. The papers are reproduced at Appendices
2 and 3 respectively.
5. We publish the three papers for the information
of the House and to ensure a wider readership of their analysis
of significant questions of principle affecting a principal part
of the constitution.
1 First reading was on 10 July 2003, second reading
on 16 September, and there were two days in Committee (21 and
28 October) Back
2
Professor of Constitutional Law at the University of Manchester;
barrister and Additional Bencher (Lincoln's Inn) Back
3
Cm. 4534 (2000) Back
4
R (on the application of Jackson) v Attorney-General [2005]
UKHL 56 Back
5
Emeritus Professor of Constitutional Law at Edinburgh University;
barrister (Inner Temple); a Vice-President of the International
Association of Constitutional Law; alternate UK member of the
Council of Europe's Commission on Democracy and the Rule of Law;
a Visiting Fellow at the Institute of European and Comparative
Law, University of Oxford. Back
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