House of Lords - Constitution

Select Committee on Constitution Seventh Report

APPENDIX 2: THE DECISIONS OF THE ADMINISTRATIVE COURT AND THE COURT OF APPEAL, BY PROFESSOR ANTHONY BRADLEY

This note examines the decisions of the Administrative Court and the Court of Appeal in rejecting the recent challenge to the validity of the Hunting Act 2004. It concludes that, unlike the Administrative Court's decision, the reasons for the decision given by the Court of Appeal raise difficult and potentially far-reaching questions about the Parliament Acts 1911-1949 and the use of those Acts in making future constitutional changes. An appeal against the Court of Appeal's decision is to be heard by the Law Lords in July.

Introduction

1. The Committee will remember that several legal questions arising from the Parliament Acts 1911-1949 were considered by the Wakeham Commission on reform of the House of Lords. These included a question as to the validity of the 1949 Act. The Wakeham Commission did not express a view on this question, but did conclude that "it is a potential weakness of the Parliament Acts that they can themselves be amended using Parliament Act procedures, as was done in 1949".[19]

2. The question as to the validity of the 1949 Act was the central ground raised in the recent challenge to the validity of the Hunting Act 2004, and the question has been decided first, on 28 January 2005 by Maurice Kay LJ and Collins J in the Administrative Court;[20] and then on 8 February 2005 by the Court of Appeal (Lord Woolf CJ, Lord Phillips of Worth Matravers MR and May LJ).[21] While both courts upheld the validity of the Hunting Act, the Court of Appeal did not endorse the reasoning adopted in the Administrative Court. Because of the doctrine of the sovereignty (legislative supremacy) of Parliament, English courts have had very little experience of dealing with challenges to the validity of primary legislation. Such challenges are normally wholly outside the jurisdiction of the courts: on the rare occasions when such questions have arisen, the courts have limited their task to deciding whether a document on which a litigant relies is or is not an Act of Parliament. To simplify this task, the courts have applied what is known as the "enrolled Act" rule. By this rule,

"all that a Court of Justice can do is to look at the Parliament Roll; if from that it should appear that a bill has passed both Houses and received the Royal Assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament, during its progress in its various stages through Parliament".[22]

Against this background, the judgments in the Hunting Act case have an interest for constitutional lawyers that owes nothing to the merits or otherwise of a ban on hunting foxes with dogs.

The grounds of challenge

3. In outline, the claimants argued that the Hunting Act was not a lawful statute because it had not been enacted by the sovereign legislature (Commons, Lords and Royal Assent) but depended for its validity upon the Parliament Acts. The central claim made was that the 1949 Act had not been lawfully passed by Parliament, since that Act had itself been enacted under the procedure in the 1911 Act. It was argued that the scope of the 1911 Act was subject to an implied exclusion of power under the Act to amend its own terms; thus the 1911 Act could lawfully be amended only by "Parliament", meaning the sovereign legislature (Commons, Lords and Royal Assent), and not by the Commons and Royal Assent alone. The claimants concluded that the 1949 Act was not in law an Act of Parliament, and therefore neither was the Hunting Act, the validity of which depended on the validity of the 1949 Act.

The decision of the Administrative Court

4. Maurice Kay LJ, giving the leading judgment, dealt with the challenge under three main headings. First, he considered that the claimants' arguments foundered "on the clear language of the 1911 Act", in particular the reference in section 2(1) to the enactment of "any public bill", a provision that was subject to the express exclusion of money bills and bills to extend the life of Parliament. "[The] existence of express exclusions militates against the implication of additional excluded categories" (para 17). The provision for the Speaker of the Commons to issue a certificate that the 1911 Act provisions had been observed in respect of a bill would impose "an unduly onerous obligation" on the Speaker if implied limitations to the scope of the Parliament Act 1911 existed. No support for the "implied limitations" argument was to be found in the Preamble to the 1911 Act.

5. Secondly, Maurice Kay LJ rejected as "inapposite" the argument favoured by some academic lawyers that legislation passed under the Parliament Act procedure must be regarded as delegated legislation. He was inclined to favour the position (held by other academic lawyers) that the legislature had been "redefined" or "remodelled", holding that what emerged from the Parliament Act procedure was not delegated legislation but an Act of Parliament. The 1911 Act thus had provided a second route by which laws could be enacted by Parliament, even if in exceptional circumstances the use of that route might be subject to judicial scrutiny to ensure compliance with section 2 of the 1911 Act.

6. Thirdly, for reasons similar to those stated in paragraph 4 above, Maurice Kay LJ rejected the argument that the House of Commons and the Queen constituted a "subordinate legislature" and as such were debarred from amending the conditions under which that power to legislate was conferred. What was important was the language of the 1911 Act: "I do not doubt that [that language] is sufficient to permit amendment in the manner that was achieved by the 1949 Act" (para 27).

7. Among incidental matters that he considered, the judge noted what had been said in Parliament in 1911 about the scope of the bill: "history discloses that the central issue in this case was in the minds of Parliamentarians in both Houses in 1911"(para 30). He ended his judgment with this passage:

"Constitutionally, I can well understand the argument that it would have been preferable if amendments to the 1911 Act had been excluded from the machinery of section 2. However, they were not. Apart from the two specifically excluded matters, [money bills and bills to extend the life of Parliament] resort to section 2 is constrained more by political self-restraint and accountability than by legal inhibition." (para 34).

8. In a concurring judgment, Collins J focussed on the "delegated legislation" argument, but only to reject it. An Act resulting from the 1911 Act procedure was not delegated legislation, even though a court could intervene if the limitation on the face of section 2 of the 1911 Act was not complied with (for instance, if the procedure had been applied to a bill that purported to extend the life of Parliament). It seemed to Collins J "inconceivable that in enacting the 1911 Act Parliament did not have regard to the very real possibility that the existing House of Lords would not willingly accept its own demise or measure to limit its powers and so the provisions of the Act might have to be used" (para 41). He concluded: "There is no question but that an Act passed by the use of the section 2 procedure is an Act of Parliament and must be treated by the courts and given the same effect as any other Act" (para 45). The very limited (and "impossible to conceive occurring") situation of non-compliance with the two express limitations in section 2 did not affect this conclusion.

9. These judgments were based somewhat narrowly on textual interpretation of the 1911 Act, accompanied by sufficient reference to Hansard in 1911 to confirm that the issue in dispute had been in the minds of parliamentarians at the time. This reasoning excluded any possibility that there were implied legal limitations on use of the Parliament Acts.

The decision of the Court of Appeal

10. Delivering a single judgment, the Court of Appeal arrived at the same conclusion, but took a broader approach to the issues involved. In summary, and differing from the Administrative Court's view, the court held that there are indeed implied limitations of a constitutional nature that restrict the use of the Parliament Acts procedure (in my view, this conclusion is controversial both as a matter of constitutional law and as a matter of politics). However, the court held that the change made in 1949 to shorten the delaying power of the Lords from two years to one year was not a sufficiently extensive or fundamental change to be affected by any implied constitutional limitations.

11. The court emphasised that the case was not "an ordinary case turning on a point of statutory interpretation", but a case of constitutional significance (paras 3, 4). As the court said later,

"This appeal is concerned with much more than the scope of a statutory power. It is concerned with the extent of the restriction of the role of the House of Lords as one of the constituents of sovereign power affected by what was in reality a concordat and what was in form a statute" (para 76).

The court regarded the Parliament Act 1911 as "having established a new constitutional settlement" (para 8). The Act itself "was a most unusual statute", in that the sovereign Parliament had "used the machinery of Parliament to make a fundamental constitutional change".[23] In considering the effect of the Act, the court was "acting as a constitutional court", although there was no precise precedent for this jurisdiction (para 12). The court was justified in reading Hansard to find out what was said in Parliament at the time: in so doing it was not adjudicating on the propriety of what had happened in Parliament (and, in my view rightly, the court thus believed that this did not breach Article 9 of the Bill of Rights, that protects the freedom of speech and debate in Parliament from being questioned in any court).

12. The court considered that Dicey's classic statement of parliamentary sovereignty [24] had been "significantly qualified" by the 1911 Act in curtailing the role of the House of Lords. The Preamble to the 1911 Act "makes it clear that the 1911 Act was only a stepping stone on the way to even more fundamental changes in the House of Lords…It is not suggested that the 1911 Act was to be the vehicle for these changes. It includes the more limited changes."(para 20). The 1911 Act had redefined the relationship between the two Houses, but had still left the House of Lords with a very significant legislative role. Nonetheless, in the court's view, "[the] changes made by the 1949 Act were far less significant than the changes made to the constitutional position of the House of Lords by the 1911 Act"(para 27). The judgment proceeded to deal with the three main questions raised by the case.

IS LEGISLATION PASSED UNDER THE 1911 ACT PRIMARY OR DELEGATED (SUBORDINATE) LEGISLATION?

13. This question was regarded as being at the heart of the case. The Attorney-General had argued that legislation passed under the 1911 Act was in every respect identical to legislation passed with the consent of both Commons and Lords. The claimants argued that this could not be so, since legislation under the 1911 Act depended for its validity on compliance with that Act. The court accepted the claimants' case on this point, holding that this entitled the court to decide whether what was said to have happened under the 1911 Act in fact complied with that Act (para 33). The main reason given for the court's rejection of the Attorney-General's argument was that, if it had been accepted, the 1911 Act could be used to extend the life of Parliament, contrary to the express language of the Act. All that would be required would be the enactment under the Parliament Acts of a bill to delete from the 1911 Act the express exclusion of bills seeking to extend the life of Parliament, after which the Commons and the Queen could pass a bill that would have this effect. The court was not prepared to accept this.

14. Further, the court stated that in the "new constitutional settlement" established by the 1911 Act, one feature of it was to preserve the role of the Lords in the legislative process. "In our view it would be in conflict with the 1911 Act for it to be used as an instrument for abolishing the House of Lords"(para 42). The 1911 Act did not show an intention that it be used, "directly or indirectly, to enable more fundamental constitutional changes to be achieved than had been achieved already" (para 42).

15. This reasoning led to a key point of disagreement with the court below: "Thus, 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), [emphasis supplied]. In the court's view, Parliament in 1911 was not intending to create a power to make fundamental constitutional changes: had this been the case, the court would have expected this power to be unambiguously stated in the Act (para 45). But not all constitutional changes were necessarily fundamental. In the court's view, the reduction in the delaying power of the Lords made in 1949 was not a fundamental change and had been validly made under the 1911 Act. As examples of changes that the court would regard as fundamental, the court instanced extending the life of Parliament beyond five years or abolishing the House of Lords.

CAN POWERS GRANTED BY AN ENABLING ACT (SUCH AS THE PARLIAMENT ACT 1911) BE ENLARGED OR MODIFIED BY EXPRESS WORDS OF AUTHORISATION?

16. The claimants' based their case here on the principle that where an Act delegates authority to a body, the delegated power cannot be used to enlarge or vary the power itself. After much citation of constitutional cases from Commonwealth countries, the Court of Appeal described the position of the Administrative Court as being an over-simplification (para 62) and held that a legislature was not prevented by any principle from altering its own constitution by amending the very instrument from which its powers derived. "This is not performing an act of bootstrap levitation, provided the power exercised is duly derived" from a sufficient original power and authority.

DOES SECTION 2 OF THE 1911 ACT AUTHORISE THE COMMONS TO AMEND THE CONDITIONS ON WHICH ITS LAW-MAKING POWER IS GRANTED?

17. The Court of Appeal found nothing in the text of section 2(1) of the 1911 Act that prevented the amendment that the House of Commons wished to make in 1949. In reaching this view, the court made a close examination of the passing of the 1911 Act, having found that textual analysis of the 1911 Act did not resolve the doubt as to what Parliament was intending to be the scope of the Act. The court also looked at later events to discover the subsequent understanding of Parliament as to the nature of the change made by the 1911 Act. Quoting extensively from Hansard in 1911, the court found the parliamentary material to show that enactment of the Parliament Bill in the form in which this occurred "indicated general acceptance" that it would be open to the Government to use the bill's provisions to reduce further the limited powers that it gave to the House of Lords (para 86).

18. The Court of Appeal did not stop there, going on to look at post-1911 and post-1949 events to determine whether there was general recognition of the "consensual constitutional change in the manner in which sovereign power is exercised"(para 90). On the basis of the later practice of Parliament, especially after 1949, the court found there to have been "general recognition" that the 1949 Act was a proper exercise of sovereign legislative power, and concluded:

"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"(para 97).

The court found that the reduction in the delaying power of the Lords made in 1949 was a "a relatively modest and straightforward amendment" (para 98), and said that this was quite different from allowing the power of amendment to include "making changes of a fundamentally different character to the relationship between the House of Lords and the Commons from those which the 1911 Act had made" (para 99). The court did not decide where the line should be drawn in future between acceptable and unacceptable amendment, but made the "obvious" point that "the greater the scale of the constitutional change proposed by any amendment, the more likely it is that it will fall outside the powers contained in the 1911 Act" (para 100).

CONCLUSIONS