19. The Law Lords are expected to hear the appeal
against the Court of Appeal's judgment in July, and it is therefore
likely that their decision, and the reasons for it, will not be
known before October. My main comment at this stage is that the
Administrative Court's reasoning was what I had expected to be
the outcome of the challenge to the Hunting Act. It plainly would
give legal power to a Government with a clear majority in the
House of Commons to use the Parliament Acts to make reforms affecting
the "constitutional settlement" established by the 1911
Act, whether these concern the composition or powers of the Lords
or even conceivably of the Sovereign.
20. On the other hand, I can see why the Court
of Appeal felt that such an approach was rather narrow, and why
that court emphasised that the dispute raised constitutional issues.
However, the extent to which the court accepted the claimants'
arguments is notable, the court going appreciably further than
was needed to decide the case. For instance, the Court of Appeal
could have said the following: "Whether or not there are
implied limitations in the 1911 Act that prevent fundamental constitutional
reforms from being made without the assent of the Lords by use
of that Act, the changes made in 1949 were not sufficiently fundamental
to run up against any such limitations". The court did in
fact say (in summary): "(1) Parliament in 1911 did not intend
fundamental constitutional reforms to be made under the 1911 Act;
such changes are in law required to be made with the assent of
the Lords; (2) nonetheless, the changes made in 1949 were not
fundamental constitutional reforms for this purpose."
21. As was emphasised above, in paragraph 15,
the Court of Appeal said, "it does not necessarily follow
that because there is compliance with the requirements in the
1911 Act, the result is a valid Act of Parliament" (para
43). This means that a future government that wishes to make controversial
fundamental reforms and cannot secure the support of the Lords
could face the possibility of a court holding that, despite compliance
with express provisions of the 1911 Act, and despite a certificate
of compliance being given by the Speaker of the Commons, the result
of much legislative and political effort is not necessarily a
valid Act of Parliamentyet the dividing-line between fundamental
and non-fundamental changes will be a very difficult one to draw.
If the Court of Appeal's approach is correct, it means that the
Parliament Act procedure may not be used to force through major
constitutional changes that affect the relationship between the
Lords and the Commons. Thus the Lords would retain a power of
veto in fundamental constitutional matters that went well beyond
its power to veto bills that extend the life of Parliament. This
ruling by the Court of Appeal provides judicial support for the
view of the Wakeham Commission that the House has an important
role to play in safeguarding fundamental constitutional principles.
22. In this note, I have concentrated on questions
of principle and have not discussed in detail the legal and parliamentary
material relied on by the Court of Appeal. For present purposes,
it is enough to say that (in my view) this material does not provide
an unequivocal pointer to the correctness of the court's reasoning.
There will be much scholarly discussion of the approach taken
by the Court of Appeal. If the validity of the Hunting Act is
confirmed on appeal by the Law Lords, it will be of great interest,
and of no small political significance, to know whether they endorse
the Court of Appeal's approach.
3 May 2005