Hunting for limits on the Parliament Acts
Gordon Nardell
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Nine Law Lords gave judgment last Thursday unanimously dismissing the challenge by supporters of hunting to the use of the Parliament Acts 1911 and 1949 to pass the Hunting Act 2004.1 Section 2(1) of the 1911 Act dispensed with the Lords’ consent to a Bill passed by the Commons in three sessions. Expressly excepted from the section are Money Bills (from which section 1 of the 1911 Act removed the Lords’ veto entirely) and any Bill prolonging Parliament beyond 5 years. The 1949 Act, passed using the 1911 Act, reduced the Lords’ “suspensory veto” from three sessions to two. The challenge rested on the contention that the Commons could not use the 1911 Act to pass a Bill, without the Lords’ consent, relaxing the very conditions for dispensing with that consent. So the 1949 Act, and the four Acts (including the Hunting Act) passed in reliance on it, were not valid Acts of Parliament.
The Lords had little difficulty rejecting this proposition. In short, they agreed with the Administrative Court (where the proceedings started the day after Royal Assent) that the issue was ultimately about the meaning of section 2(1) of the 1911 Act. Reading the section in the Act’s historical context, the two express exceptions left no room for the suggestion that the 1911 Parliament intended to create further, implicit qualifications on the scope of the section, even for Bills amending the Act itself. The 1949 Act was a valid deployment of the 1911 Act procedure.
But the Court of Appeal had not seen things quite so simply. 2 They held that there were general limits on the section 2(1) power. The 1911 Act could be used to bring about “constitutionally significant” change -- including an amendment to itself -- but not “fundamental” change. The “relatively modest and straightforward” 1949 Act passed the test; but major Parliamentary re- engineering – abolishing the House of Lords, for instance – would not.
The Court of Appeal’s approach, not surprisingly, satisfied nobody, and the Lords rejected it. Among other things, the “fundamental” test was uncertain and – as the League Against Cruel Sports observed in its intervention in the case, and as several of their Lordships recognised -- would place an impossible burden on the House Authorities. Section 2(2) of the 1911 Act requires the Speaker to certify that “the provisions of this section have been duly complied with”. Parliament could not have expected the Speaker to ponder potential implied limits to section 2(1) beyond the two express
1 R. (Jackson and others) v. HM Attorney General, League Against Cruel Sports intervening [2005] UKHL 56, 13.10.05. 2 [2005] 2 WLR 866.
- 1 - Hunting Act – G. Nardell Oct 05 exceptions. Nevertheless, the Court of Appeal’s insistence on constitutional limits to the Commons’ power set a hare running, one which the Lords’ nine, subtly differing judgments might not have halted completely.
First, a majority of the nine agreed that the express exception for Bills extending Parliament beyond 5 years carries an implied exception for any Bill seeking to remove that constraint from the 1911 Act. Second, a minority of the nine expressed varying degrees of doubt, which by no means a majority were willing unambiguously to assuage, that the Act could be used to pass a Bill abolishing the House of Lords. Third, although the case concerned (as Lord Steyn in particular noted) the way in which the constituent parts of Parliament combine to legislate rather than “sovereignty” in the sense of what Parliament can achieve by legislation, the judgments include some noteworthy comments as to whether the courts would unquestioningly accept the validity of legislation disturbing other fundamental elements of the constitutional order – the availability of judicial review, for example – whether passed under the Parliament Acts or by the traditional method.
Here, the Lords acknowledged, we are on the uncertain border terrain between what is legally possible and what is politically possible. Moreover these points were peripheral to the main basis on which the nine decided the case, and are not binding law. Also in that category are some interesting comments by the Lords on how far, in deciding questions of interpretation and validity, use can be made of Hansard and of Parliament’s de facto recognition of the effectiveness of what has been done. Space does not permit discussion of those points here. But at minimum, the Hunting Act case has revealed a judicial taste for delicate and perhaps controversial issues about the way Parliament operates. The one limit it is harder than ever to define is that separating the legal from the political.
19 October 2005
Gordon Nardell is a barrister at 39 Essex Street chambers and a former Assistant Parliamentary Counsel. He appeared as junior counsel for the League Against Cruel Sports in its intervention in the Hunting Act case.
- 2 - Hunting Act – G. Nardell Oct 05