| |
HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Jackson and others (Appellants) v. Her Majesty's Attorney General (Respondent) [2005] UKHL 56 LORD BINGHAM OF CORNHILL My Lords, 1. The appellants all, in differing ways, have an interest in fox-hunting. They wish that activity to continue. They challenge the legal validity of the Hunting Act 2004 which, on its face, makes it an offence to hunt a wild mammal with a dog save in limited circumstances. The appellants acknowledge that the legislative procedure adopted to enact the Hunting Act was in accordance with the procedure laid down in the Parliament Act 1949. But they contend that the 1949 Act was itself invalid: it did not, as they correctly say, receive the consent of the House of Lords; and the Parliament Act 1911 did not, they submit, permit an Act such as the 1949 Act to be enacted without the consent of the House of Lords. Thus, although the Hunting Act gives rise to the present issue between the appellants and the Attorney General, the real question turns on the validity of the 1949 Act and that in turn depends on the true effect of the 1911 Act. The merits and demerits of the Hunting Act, on which opinion is sharply divided, have no bearing on the legal issue which the House, sitting judicially, must resolve. 2. In these proceedings the appellants sought a declaration that "1. The Parliament Act 1949 is not an Act of Parliament and is consequently of no legal effect. 2. Accordingly, the Hunting Act 2004 is not an Act of Parliament and is of no legal effect." The Queen's Bench Divisional Court (Maurice Kay LJ and Collins J) declined to make such a declaration: [2005] EWHC 94 (Admin). So, on somewhat different grounds, did Lord Woolf CJ, Lord Phillips of Worth Matravers MR and May LJ sitting in the Court of Appeal: [2005] EWCA Civ 126, [2005] QB 579. On the appellants' behalf Sir Sydney Kentridge QC repeats detailed arguments advanced in the courts below. Lord Goldsmith QC, the Attorney General, resists those arguments. The League Against Cruel Sports make written submissions in support of the Attorney General. The Hunting Act 3. The Hunting Act received the royal assent on 18 November 2004. Its words of enactment are: "Be it enacted by The Queen's most Excellent Majesty, by and with the advice and consent of the Commons in this present Parliament assembled, in accordance with the provisions of the Parliament Acts 1911 and 1949, and by the authority of the same, as follows …" The House of Lords did not consent. As presented for the royal assent, the Hunting Bill bore two certifications by the Speaker of the House of Commons: "I hereby certify that this Bill as compared with the Hunting Bill 2003 contains only such alteration as is necessary owing to the time which has elapsed since the date of that Bill." "I certify, in reference to this Bill, that the provisions of section two of the Parliament Act 1911, as amended by section one of the Parliament Act 1949, have been duly complied with." Neither of these certifications is questioned or challenged in any way. The 1949 Act 4. The 1949 Act was very short. It was described in its long title as "An Act to amend the Parliament Act, 1911." Its words of enactment were as for the Hunting Act, save that the only statutory reference was to the 1911 Act. Its substantial effect was to reduce the number of successive sessions referred to in section 2(1) of the 1911 Act from three to two, and to reduce the lapse of time referred to in the proviso to section 2(1) of the 1911 Act from two years to one. The 1911 Act 5. The 1911 Act was described in its long title as "An Act to make provision with respect to the powers of the House of Lords in relation to those of the House of Commons, and to limit the duration of Parliament." The words of enactment were preceded by a preamble with three recitals, which read: "Whereas it is expedient that provision should be made for regulating the relations between the two Houses of Parliament: And whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation: And whereas provision will require hereafter to be made by Parliament in a measure effecting such substitution for limiting and defining the powers of the new Second Chamber, but it is expedient to make such provision as in this Act appears for restricting the existing powers of the House of Lords:" The second of these recitals has an historical explanation, given below. The standard words of enactment were used, since both Houses had consented to the measure: "Be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows …" 6. Although this appeal turns on section 2(1) of the 1911 Act, which is considered in more detail below, that section must be understood in the context of the whole Act which, save for the short title in section 8, I think it necessary to recite: "1.— (1) If a Money Bill, having been passed by the House of Commons, and sent up to the House of Lords at least one month before the end of the session, is not passed by the House of Lords without amendment within one month after it is so sent up to that House, the Bill shall, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified, notwithstanding that the House of Lords have not consented to the Bill. (2) A Money Bill means a Public Bill which in the opinion of the Speaker of the House of Commons contains only provisions dealing with all or any of the following subjects, namely, the imposition, repeal, remission, alteration, or regulation of taxation; the imposition for the payment of debt or other financial purposes of charges on the Consolidated Fund, or on money provided by Parliament, or the variation or repeal of any such charges; supply; the appropriation, receipt, custody, issue or audit of accounts of public money; the raising or guarantee of any loan or the repayment thereof; or subordinate matters incidental to those subjects or any of them. In this subsection the expressions 'taxation,' 'public money,' and 'loan' respectively do not include any taxation, money, or loan raised by local authorities or bodies for local purposes. (3) There shall be endorsed on every Money Bill when it is sent up to the House of Lords and when it is presented to His Majesty for assent the certificate of the Speaker of the House of Commons signed by him that it is a Money Bill. Before giving his certificate, the Speaker shall consult, if practicable, two members to be appointed from the Chairmen's Panel at the beginning of each Session by the Committee of Selection. 2.— (1) If any Public Bill (other than a Money Bill or a Bill containing any provision to extend the maximum duration of Parliament beyond five years) is passed by the House of Commons in three successive sessions (whether of the same Parliament or not), and, having been sent up to the House of Lords at least one month before the end of the session, is rejected by the House of Lords in each of those sessions, that Bill shall, on its rejection for the third time by the House of Lords, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified thereto, notwithstanding that the House of Lords have not consented to the Bill: Provided that this provision shall not take effect unless two years have elapsed between the date of the second reading in the first of those sessions of the Bill in the House of Commons and the date on which it passes the House of Commons in the third of those sessions. (2) When a Bill is presented to His Majesty for assent in pursuance of the provisions of this section, there shall be endorsed on the Bill the certificate of the Speaker of the House of Commons signed by him that the provisions of this section have been duly complied with. (3) A Bill shall be deemed to be rejected by the House of Lords if it is not passed by the House of Lords either without amendment or with such amendments only as may be agreed to by both Houses. (4) A Bill shall be deemed to be the same Bill as a former Bill sent up to the House of Lords in the preceding session if, when it is sent up to the House of Lords, it is identical with the former Bill or contains only such alterations as are certified by the Speaker of the House of Commons to be necessary owing to the time which has elapsed since the date of the former Bill, or to represent any amendments which have been made by the House of Lords in the former Bill in the preceding session, and any amendments which are certified by the Speaker to have been made by the House of Lords in the third session and agreed to by the House of Commons shall be inserted in the Bill as presented for Royal Assent in pursuance of this section: Provided that the House of Commons may, if they think fit, on the passage of such a Bill through the House in the second or third session, suggest any further amendments without inserting the amendments in the Bill, and any such suggested amendments shall be considered by the House of Lords, and, if agreed to by that House, shall be treated as amendments made by the House of Lords and agreed to by the House of Commons; but the exercise of this power by the House of Commons shall not affect the operation of this section in the event of the Bill being rejected by the House of Lords. 3. Any certificate of the Speaker of the House of Commons given under this Act shall be conclusive for all purposes, and shall not be questioned in any court of law. 4.— (1) In every Bill presented to His Majesty under the preceding provisions of this Act, the words of enactment shall be as follows, that is to say:— 'Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Commons in this present Parliament assembled, in accordance with the provisions of the Parliament Act, 1911, and by authority of the same, as follows.' (2) Any alteration of a Bill necessary to give effect to this section shall not be deemed to be an amendment of the Bill. 5. In this Act the expression 'Public Bill' does not include any Bill for confirming a Provisional Order. 6. Nothing in this Act shall diminish or qualify the existing rights and privileges of the House of Commons. 7. Five years shall be substituted for seven years as the time fixed for the maximum duration of Parliament under the Septennial Act, 1715." The appellants' submissions 7. Sir Sydney helpfully encapsulated the appellants' submissions in a series of key propositions, which he elaborated in written and oral argument. The propositions are these: (1) Legislation made under the 1911 Act is delegated or subordinate, not primary. (2) The legislative power conferred by section 2(1) of the 1911 Act is not unlimited in scope and must be read according to established principles of statutory interpretation. (3) Among these is the principle that powers conferred on a body by an enabling Act may not be enlarged or modified by that body unless there are express words authorising such enlargement or modification. (4) Accordingly, section 2(1) of the 1911 Act does not authorise the Commons to remove, attenuate or modify in any respect any of the conditions on which its law-making power is granted. (5) Even if, contrary to the appellants' case, the Court of Appeal was right to regard section 2(1) of the 1911 Act as wide enough to authorise "modest" amendments of the Commons' law-making powers, the amendments in the 1949 Act were not "modest", but substantial and significant. 8. Before considering these submissions it is in my opinion important to describe in outline the constitutional background and historical context of the 1911 Act. For it was the product of a constitutional crisis, by some margin the most acute to afflict this country during the twentieth century. It generated a degree of political and personal acrimony rarely, if ever, seen before, and never since, in the life of our parliamentary democracy. The Act must be interpreted and understood in that context. The constitutional background and historical context of the 1911 Act 9. The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament. It is, as Maurice Kay LJ observed in para 3 of his judgment, unnecessary for present purposes to touch on the difference, if any, made by our membership of the European Union. Then, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished. Statutes, formally enacted as Acts of Parliament, properly interpreted, enjoyed the highest legal authority. But such Acts required the consent of both Houses, Lords and Commons: A V Dicey, Introduction to the Study of the Law of the Constitution, 6th edn(1902), pp 37-38, 350-351. Where such consent was given, the royal assent to the measure had become a constitutional formality. Where and so long as one or other House withheld its consent, the measure could not become an Act of Parliament. 10. Save for a relatively small number of archbishops, bishops, lords of appeal in ordinary and former lords of appeal in ordinary, the membership of the House of Lords in 1911 was wholly hereditary. The great majority of the members had either succeeded, or been appointed, to hereditary peerages. They were predominantly holders of Conservative opinions. Thus it was possible for the majority in the Lords to block the legislative programme of a government with which it disagreed. In 1831-1832 the Lords sought, in the event unsuccessfully, to block what has become known as the Great Reform Act. In 1893, by a majority of 419-41, it rejected a Home Rule Bill, the heart of the government's programme, which had been approved by the Commons. The only means which the constitution provided to ensure that the will of the elected house prevailed over that of the upper House where deadlock occurred was by the creation of enough new peers supportive of the government's measure to carry it in the Lords. Advice by the Prime Minister to create new peers was advice which a constitutional monarch was bound, ultimately, to accept. The threat to create new peers might, in the end, prove enough to secure the Lords' acquiescence, as it did in 1832. But it was seen as a nuclear option. 11. This situation was not regarded as satisfactory by the Liberal leaders. Mr Gladstone himself did not favour organic reform of the House of Lords, and wished an hereditary House to continue for the avoidance of greater evils. But on 19 August 1884, in a paper prepared for Queen Victoria, he observed that "The House of Lords has for a long period been the habitual and vigilant enemy of every Liberal government …" (HCG Matthew, The Gladstone Diaries, vol XI, OUP, 1990, p 193). 12. His successors were less passive. Lord Rosebery, as Prime Minister in October 1894, proposed in a speech at Bradford to introduce a Commons resolution asserting the legislative supremacy of the Commons. He wished to reform the composition of the Lords. He had not, however, consulted his cabinet colleagues, a majority of whom preferred in principle to abolish rather than reform the Lords, and saw limitation of the Lords' veto as a more practical way of clipping their wings. This option was adopted in November, but no proposal appeared in the Queen's speech in 1895 (L McKinstry,Rosebery (2005), pp 327-332; Davis, 'Primrose, Archibald Philip, fifth earl of Rosebery', Oxford Dictionary of National Biography, 2004). Sir Henry Campbell-Bannerman, Rosebery's successor as Liberal leader, had advised the Queen in 1894 that one day the Lords' behaviour would inevitably lead to deadlock and constitutional chaos. But in 1907, as Prime Minister, he rejected a proposal from a cabinet committee to reform the composition of the Lords. Instead, recognising the need to resolve relations between the two Houses, he persuaded the Commons on 26 June 1907 to accept, by a large majority, a resolution that: "in order to give effect to the will of the people as expressed by their elected representatives, it is necessary that the power of the other House to alter or reject Bills passed by this House should be so restricted by Law as to secure that within the limits of a single Parliament the final decision of the Commons shall prevail." (House of Commons Journal, 26 June 1907). | |||||||||||||||||||||||||||
13. Sir Henry Campbell-Bannerman had become Prime Minister on the resignation of Mr Balfour, in December 1905. A general election followed in January 1906, which the Liberal party won with a landslide majority. But a Bill introduced to reform education was "amended out of recognition" (G R Searle, A New England ? Peace and War 1886 - 1918, OUP (2004), p 362) by the House of Lords and had to be dropped. The Licensing Bill 1908 was rejected. In all, ten Liberal Bills sent to the Lords between 1906 and 1909 were rejected or wrecked (Searle, op cit, p 409). Among these was the 1909 Finance Bill, introduced by Mr Lloyd George, which was passed by the Commons on 4 November 1909 by 379 votes to 149, but which, at the end of the month, the Lords rejected by 350 votes to 75. There had been no precedent for such a course for 150 years or perhaps longer (Searle, op cit, p 411; Ensor, England 1870-1914, (1936) p 416), since the voting of supply had come to be recognised as the all but exclusive preserve of the Commons. This was reflected in the enacting words of such measures, which departed from the wording found in other Acts and were (as in a modified form they still are) prefaced by language such as
"We, Your Majesty's most dutiful and loyal subjects the Commons of the United Kingdom of Great Britain and Ireland in Parliament assembled, towards raising the necessary supplies to defray Your Majesty's public expenses, and making an addition to the public revenue, have freely and voluntarily [in former versions "cheerfully"] resolved to give and grant unto Your Majesty the several duties herein-after mentioned; and do therefore most humbly beseech Your Majesty that it may be enacted, and be it enacted …"
In modern times the same distinction has been consistently recognised in the speech of the monarch on opening a new session of Parliament. This rejection was described by Mr Asquith, now the Prime Minister, as "a breach of the Constitution and a usurpation of the rights of the Commons". A general election followed in January 1910. The issue on the platforms was the Lords' veto.
14. That election gave the Liberals a majority of only 2 over the Conservatives in the House of Commons. But the Liberals enjoyed the general support of 40 Labour and 82 Irish nationalist members. These three parties were united on two issues: they wanted to deal with the House of Lords on Campbell-Bannerman lines, not by altering its composition but by defining and limiting its power of veto; and they wanted to give Home Rule to Ireland (Ensor, op cit, p 418; Searle, op cit, p 417).
15. On 29 March 1910 the government introduced three resolutions to the House of Commons. After extensive debate, these resolutions were approved by the House by large majorities on 14 April 1910. The first of these resolutions began:
"That it is expedient that the House of Lords be disabled by Law from rejecting or amending a Money Bill, but that any such limitation by Law shall not be taken to diminish or qualify the existing rights and privileges of the House of Commons."
The resolution went on to define the meaning of "Money Bill." The second resolution began:
"That it is expedient that the powers of the House of Lords, as respects Bills other than Money Bills, be restricted by Law, so that any such Bill which has passed the House of Commons in three successive Sessions and, having been sent up to the House of Lords at least one month before the end of the Session, has been rejected by that House in each of those Sessions, shall become Law without the consent of the House of Lords on the Royal Assent being declared: Provided that at least two years shall have elapsed between the date of the first introduction of the Bill in the House of Commons and the date on which it passes the House of Commons for the third time."
The resolution went on to define what amounted to rejection. In the course of debate it was sought to amend this second resolution by inserting, after "as respects Bills other than", the words "Bills further affecting the constitution or powers of the House of Lords and"; "Bills affecting the duration of Parliament and"; "Bills affecting the prerogative, rights and powers of the Crown and"; and "Bills for the delegation of administration or legislative powers to subordinate Parliaments within the United Kingdom and". All these amendments were rejected by large majorities. The third resolution was
"That it is expedient to limit the duration of Parliament to five years."
On the acceptance of the three resolutions, a Parliament Bill was introduced, but it was not voted upon.
16. Meanwhile, in the House of Lords, Lord Rosebery had in March 1910 secured acceptance of a proposal to change the composition of the House, a cause he had espoused for many years and which he pursued further in November 1910. He was not alone among leading Liberals in favouring this course. It was one favoured by the Foreign Secretary, Sir Edward Grey, and the second recital to the 1911 Act, quoted above, was included to meet his wishes. The introduction of the Bill was followed by reintroduction of the Finance Bill rejected by the House of Lords. It was carried by a large majority in the Commons and was accepted by the Lords without a division on the following day. It used the introductory language quoted in para 13 above, and is cited as the Finance (1909-10) Act 1910.
17. Following the death of King Edward VII in May 1910, a Conference was held, in private, between four leading members of each of the Liberal and Conservative parties. Tentative agreement was reached on the future handling of money bills, and also "that other bills might be rejected by the second chamber, but that, if one was rejected two years running, a joint sitting of the two Houses should be held to determine its fate; and lastly that the representation for the Lords in the joint sitting should be so scaled down that a liberal government with a Commons majority of fifty would be able to pass its bills" (Ensor, op cit, p 423). The Conservatives, however, concerned above all to block Home Rule, wished to except from the joint-sitting scheme certain bills or classes of bills variously described as "constitutional", "organic" or "structural", which were to be the subject of a referendum. The Liberals were willing to except bills affecting the Crown or the Protestant succession or "the Act which is to embody this agreement", but would go no further, and in particular would not except any bill providing for Irish Home Rule (ibid; Searle, op cit, pp 418-419). On this the Conference broke down.
18. On 18 November 1910, following the breakdown of the Conference, the government announced its intention to seek the dissolution of Parliament on 28 November. The pause was to give the House of Lords time to consider the Parliament Bill, which it did. The first and second readings took place. At that point the Conservative leader (Lord Lansdowne) proposed, and the House of Lords adopted, resolutions based on the proposals made at the Conference. Parliament was then dissolved, and a further general election took place in December. Unsurprisingly, given that the issues had not changed, the outcome of the election was almost exactly the same as in the preceding January: an equality of Liberal and Conservative seats, but a small increase for Labour and the Irish nationalists, giving a slight increase in the majority for the Parliament Bill and Home Rule.
19. The Parliament Bill was again introduced in the House of Commons by the Prime Minister on 21 February 1911. It was approved by a large majority on each of its three readings, the third of these on 15 May 1911. On 23 May it reached the House of Lords, which had meanwhile been considering alternative proposals. The Bill was debated at length in the Lords, and was very heavily amended before its return to the Commons. But by this time, if not before, the Conservative leaders knew of the King's willingness, if need be, to create enough peers to secure passage of the Bill and of the government's determination to secure passage of the Bill by that means if no other way was open. In the Commons, the Lords' amendments were almost all rejected. On its return to the Lords, with a threat that rejection must be followed by "a large and prompt creation of peers", the Bill was passed by the Lords on 10 August and the royal assent was given, with the consent of both Houses, eight days later.
20. It is not necessary to examine in any detail the passage of the Bill through Parliament. Two points are, however, noteworthy. First, the clause of the Bill which became section 2(1) of the Act had at first made reference only to "any Public Bill other than a Money Bill". The Lords amended this to read "other than a Money Bill or a Bill containing any provisions to extend the maximum duration of Parliament beyond five years". On 8 August 1911, just before the final return of the Bill to the Lords, the Commons accepted this amendment. Secondly, during the passage of the Bill through Parliament a number of attempts were made (as they had been in the earlier debates on the resolutions) to insert words after "other than a Money Bill": "or a Bill to establish a separate Parliament and Executive for Ireland" (rejected 24 April 1911, HC Hansard col 1434); "or a Bill affecting the continued existence or the prerogative rights, and powers of the Crown" (rejected 24 April 1911, HC Hansard col 1466); "or Bill for modifying this Act" (rejected 24 April 1911, HC Hansard, col 1498); "or a Bill which contains any provision affecting the qualification for the exercise of the parliamentary franchise or affecting the right to vote at any parliamentary election" (rejected 24 April 1911, HC Hansard col 1504); "or a Bill which contains any provision which affects the Constitution of the House of Lords" (rejected 24 April 1911, col 1516); "or a Bill affecting the establishment of the Church of England or the temporalities thereof, or the Church of Scotland and the temporalities thereof" (rejected 24 April 1911, HC Hansard col 1538); "or a Bill affecting the independence of the judiciary or restricting the rights of the subject to trial by jury or appeal to a higher court" (rejected 24 April 1911, HC Hansard col 1548); "is passed with a majority of at least one hundred" (rejected 25 April 1911, HC Hansard col 1634). None of these amendments was acceptable to the majority in the Commons.
21. I can now return to the appellants' propositions summarised in para 7 above, which I shall consider in turn.
(1) The status of legislation passed under the 1911 Act
22. Sir Sydney submits that whereas legislation duly enacted by the Crown in Parliament commands general obedience and recognition as such, and is the ultimate political fact upon which the whole system of legislation hangs, legislation made under the 1911 Act is required to state on its face that it is made by the authority of the 1911 Act. Such legislation is not primary because it depends for its validity on a prior enactment, and legislation is not primary where that is so. Legislation under the 1911 Act is not similar to other delegated or subordinate legislation, such as statutory instruments and bylaws made under the authority of statute, but it is delegated or subordinate or derivative in the sense that its validity is open to investigation in the courts, which would not be permissible in the case of primary legislation. For this submission, necessarily abbreviated in summary, Sir Sydney cites an impressive range of authority including HLA Hart, The Concept of Law (Oxford, 1961), chaps 5-6; Craies on Legislation, 8th edn (2004), para 1.2.1; Bennion, Statutory Interpretation, 4th edn (2002), section 50; H W R Wade, Constitutional Fundamentals (1980), pp 27-28 and "The Basis of Legal Sovereignty" [1955] CLJ 172, 193-194; Wade and Forsyth, Administrative Law, 9th edn (2004), pp 26-27; Hood Phillips and Jackson,Constitutional and Administrative Law (8th edn, 2001), pp 79-80; Lord Donaldson of Lymington, formerly Master of the Rolls (HL Hansard, 19 January 2001, col 1309); and Pickin v British Railways Board [1974] AC 765.
23. The Divisional Court rejected this argument for reasons very clearly and succinctly given by Maurice Kay LJ (paras 23-25 of his judgment) and Collins J (paras 39-45). The Court of Appeal, in part at least, accepted it (paras 30-48).
24. Despite the skill with which the argument is advanced and the respect properly due to the authorities relied on, I am of opinion that the Divisional Court was right to reject it, for two main reasons. First, sections 1(1) and 2(1) of the 1911 Act provide that legislation made in accordance with those provisions respectively shall "become an Act of Parliament on the Royal Assent being signified". The meaning of the expression "Act of Parliament" is not doubtful, ambiguous or obscure. It is as clear and well understood as any expression in the lexicon of the law. It is used, and used only, to denote primary legislation. If there were room for doubt, which to my mind there is not, it would be resolved by comparing the language of the second resolution, quoted in para 15 above, with the language of section 2(1) as enacted. The resolution provided that a measure meeting the specified conditions "shall become Law without the consent of the House of Lords on the Royal Assent being declared". Section 2(1), as just noted, provides that a measure shall become an Act of Parliament. The change can only have been made to preclude just such an argument as the appellants are advancing. The 1911 Act did, of course, effect an important constitutional change, but the change lay not in authorising a new form of sub-primary parliamentary legislation but in creating a new way of enacting primary legislation.
25. I cannot, secondly, accept that the 1911 Act can be understood as a delegation of legislative power or authority by the House of Lords, or by Parliament, to the House of Commons. The implausibility of this interpretation can perhaps be most readily seen in relation to money bills. As noted in para 13, the Lords' rejection of the Finance Bill was a departure from convention and precedent because supply had come to be recognised as the all but exclusive preserve of the Commons. Section 1 of the 1911 Act involved no delegation of legislative power and authority to the Commons but a statutory recognition of where such power and authority in relation to supply had long been understood to lie. It would be hard to read the very similar language in section 2 as involving a delegation either, since the overall object of the Act was not to enlarge the powers of the Commons but to restrict those of the Lords. This is, in my opinion, clear from the historical context and from the Act itself. The first resolution (see para 15 above) was that "it is expedient that the House of Lords be disabled by Law from …" The second resolution (para 15 above) was that "it is expedient that the powers of the House of Lords, as respects Bills other than Money Bills, be restricted by Law …" The effect of section 1 of the 1911 Act is to restrict the power of the Lords to amend or reject money bills. The effect of section 2(1) is, despite the different conditions, the same, and is aptly summarised in the sidenote: "Restriction of the powers of the House of Lords as to Bills other than Money Bills". The certification of a money bill by the Speaker under section 1 and of a bill other than a money bill under section 2 is mandatory, and the presentation of a bill to the monarch for the royal assent to be signified under sections 1(1) and 2(1) is automatic, "unless the House of Commons direct to the contrary". If it be permissible to resort to the preamble of the 1911 Act, one finds reference to the expediency of making "such provision as in this Act appears for restricting the existing powers of the House of Lords". The overall object of the 1911 Act was not to delegate power: it was to restrict, subject to compliance with the specified statutory conditions, the power of the Lords to defeat measures supported by a majority of the Commons, and thereby obviate the need for the monarch to create (or for any threat to be made that the monarch would create) peers to carry the government's programme in the Lords. This was a procedure necessarily unwelcome to a constitutional monarch, rightly anxious to avoid any appearance of participation in politics, and one which constitutionally-minded politicians were accordingly reluctant to invoke.
26. It is true, as the appellants point out, that section 4 of the 1911 Act requires the words of enactment of a Bill presented to the monarch under section 1 or section 2 of the Act, to record that the measure is enacted "in accordance with the Parliament Act 1911, and by authority of the same", and reference is now added to the 1949 Act also. But the inclusion of these words does not in my opinion mean that measures so enacted should be regarded as delegated or subordinate. The standard words of enactment make reference to the Lords Spiritual and Temporal and Commons and provide for the measure to be enacted "by the authority of the same". This language is plainly inappropriate where the Lords have not consented, and it is unsurprising that reference is instead made to the measure which makes it lawful to enact a measure in the absence of such consent. I do not think this reference can support the weight of argument the appellants seek to build on it.
27. Like the Court of Appeal (see paras 11-13 of its judgment), I feel some sense of strangeness at the exercise which the courts have (with the acquiescence of the Attorney General) been invited to undertake in these proceedings. The authority of Pickin v British Railways Board [1974] AC 765 is unquestioned, and it was there very clearly decided that "the courts in this country have no power to declare enacted law to be invalid" (per Lord Simon of Glaisdale at p 798). I am, however, persuaded that the present proceedings are legitimate, for two reasons. First, in Pickin, unlike the present case, it was sought to investigate the internal workings and procedures of Parliament to demonstrate that it had been misled and so had proceeded on a false basis. This was held to be illegitimate: see Lord Reid at p 787, Lord Morris of Borth-y-Gest at p 790, Lord Wilberforce at p 796, Lord Simon of Glaisdale at p 800 and Lord Cross of Chelsea at p 802. Lord Reid quoted with approval a passage of Lord Campbell's opinion in Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl & F 710, 725, where he said:
"All that a Court of Justice can do is to look to the Parliamentary 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 various stages through both Houses".
Here, the court looks to the parliamentary roll and sees bills (the 1949 Act, and then the 2004 Act) which have not passed both Houses. The issue concerns no question of parliamentary procedure such as would, and could only, be the subject of parliamentary inquiry, but a question whether, in Lord Simon's language, these Acts are "enacted law". My second reason is more practical. The appellants have raised a question of law which cannot, as such, be resolved by Parliament. But it would not be satisfactory, or consistent with the rule of law, if it could not be resolved at all. So it seems to me necessary that the courts should resolve it, and that to do so involves no breach of constitutional propriety.
(2) The scope of section 2(1)
28. Sir Sydney submits that, in accordance with long-established principles of statutory interpretation, the courts will often imply qualifications into the literal meaning of wide and general words in order to prevent them having some unreasonable consequence which Parliament could not have intended. He cites such compelling authority as Stradling v Morgan (1560) 1 Plow 199; R (Edison First Power Limited) v Central Valuation Officer [2003] UKHL 20, [2003] 4 All ER 209, para 25; R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539, 573-575, 588; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131; and R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563, paras 8, 44-45. He relies on these authorities as establishing (as it is put in the appellants' printed case)
"that general words such as section 2(1) should not be read as authorising the doing of acts which adversely affect the basic principles on which the law of the United Kingdom is based in the absence of clear words authorising such acts. There is no more fundamental principle of law in the UK than the identity of the sovereign body. Section 2(1) should not be read as modifying the identity of the sovereign body unless its language admits of no other interpretation".
The Divisional Court did not accept that the 1911 Act, properly construed, precluded use of the procedure laid down in that Act to amend the conditions specified in section 2: see Maurice Kay LJ in paras 17-19 of his judgment, and Collins J in paras 41-44 of his. The Court of Appeal took a different view (paras 40-41); it concluded that section 2(1) conferred powers which could be used for some purposes but not others (paras 42-45).
29. The Attorney General does not, I think, take issue with the general principles relied on by the appellants, which are indeed familiar and well-established. But he invites the House to focus on the language of the 1911 Act, and in this he is right, since a careful study of the statutory language, read in its statutory and historical context and with the benefit of permissible aids to interpretation, is the essential first step in any exercise of statutory interpretation. Here, section 2(1) makes provision, subject to three exceptions, for any public bill which satisfies the specified conditions to become an Act of Parliament without the consent of the Lords. The first exception relates to money bills, which are the subject of section 1 and to which different conditions apply. The second relates to bills containing any provision to extend the maximum duration of Parliament beyond five years. I consider this exception in detail below. The third relates to bills for confirming a provisional order, which do not fall within the expression "public bill" by virtue of section 5. Subject to these exceptions, section 2(1) applies to "any" public bill. I cannot think of any broader expression the draftsman could have used. Nor can I see any reason to infer that "any" is used in a sense other than its colloquial, and also its dictionary, sense of "no matter which, or what". The expression is repeatedly used in this sense in the 1911 Act, and it would be surprising if it were used in any other sense: see section 1(2) ("any of the following subjects", "any such charges", "any loan", "those subjects or any of them", "any taxation, money, or loan"); section 2(4) ("any amendments", "any further amendments", "any such suggested amendments"); section 3 ("Any certificate", "any court of law"); section 4(2) ("Any alteration"); section 5 ("any Bill"). "Any" is an expression used to indicate that the user does not intend to discriminate, or does not intend to discriminate save to such extent as is indicated.
30. Sir Sydney is of course correct in submitting that the literal meaning of even a very familiar expression may have to be rejected if it leads to an interpretation or consequence which Parliament could not have intended. But in this case it is clear from the historical background that Parliament did intend the word "any", subject to the noted exceptions, to mean exactly what it said. Sir Henry Campbell-Bannerman's resolution of June 1907, adopted by the Commons before rejection of the 1909 Finance Bill, referred quite generally to "Bills passed by this House" (para 12 above). The second of the resolutions adopted on 14 April 1910 (para 15 above) referred to "Bills other than Money Bills". Attempts to amend the resolution so as to enlarge the classes of bill to which the new procedure would not apply were all rejected (para 15 above). During the constitutional Conference which followed the death of the King there was provisional agreement to exclude "the Act which is to embody this agreement" from application of the new procedure, but such a provision was never included in the Bill (para 17 above). During the passage of the Bill through Parliament, there were again repeated attempts to enlarge the classes of bill to which the new procedure would not apply, but save for the amendment related to bills extending the maximum duration of Parliament they were uniformly rejected (para 20 above). The suggestion that Parliament intended the conditions laid down in section 2(1) to be incapable of amendment by use of the Act is in my opinion contradicted both by the language of the section and by the historical record. This was certainly the understanding of Dicey, who was no friend of the 1911 Act. In the first edition of his Introduction after 1911 (the 8th edition, 1915), he wrote at p xxiii:
"The simple truth is that the Parliament Act has given to the House of Commons, or, in plain language, to the majority thereof, the power of passing any Bill whatever, provided always that the conditions of the Parliament Act, section 2, are complied with."
31. The Court of Appeal concluded (in paras 98-100 of its judgment) that there was power under the 1911 Act to make a "relatively modest and straightforward amendment" of the Act, including the amendment made by the 1949 Act, but not to making "changes of a fundamentally different nature to the relationship between the House of Lords and the Commons from those which the 1911 Act had made". This was not, as I understand, a solution which any party advocated in the Court of Appeal, and none supported it in the House. I do not think, with respect, that it can be supported in principle. The known object of the Parliament Bill, strongly resisted by the Conservative party and the source of the bitterness and intransigence which characterised the struggle over the Bill, was to secure the grant of Home Rule to Ireland. This was, by any standards, a fundamental constitutional change. So was the disestablishment of the Anglican Church in Wales, also well known to be an objective of the government. Attempts to ensure that the 1911 Act could not be used to achieve these objects were repeatedly made and repeatedly defeated (paras 15 and 20 above). Whatever its practical merits, the Court of Appeal solution finds no support in the language of the Act, in principle or in the historical record. Had the government been willing to exclude changes of major constitutional significance from the operation of the new legislative scheme, it may very well be that the constitutional Conference of 1910 would not have broken down and the 1911 Act would never have been enacted.
32. It is unnecessary for resolution of the present case to decide whether the 1911 (and now the 1949) Act could be relied on to extend the maximum duration of Parliament beyond five years. It does not seem likely that such a proposal would command popular and parliamentary support (save in a national emergency such as led to extensions, by consent of both Houses, during both world wars), knowledge of parliamentary tyranny during the Long Parliament would weigh against such a proposal and article 3 of the First Protocol to the European Convention on Human Rights now requires elections at reasonable intervals. The Attorney General, however, submits that the 1911, and now the 1949, Act could in principle be used to amend or delete the reference to the maximum duration of Parliament in the parenthesis to section 2(1), and that a further measure could then be introduced to extend the maximum duration. Sir Sydney contends that this is a procedure which section 2(1) very clearly does not permit, stressing that the timetable in section 2(1) was very closely linked to the maximum duration of Parliament which the Act laid down. It is common ground that section 2(1) in its unamended form cannot without more be relied on to extend the maximum duration of Parliament, because a public bill to do so is outside the express terms of section 2(1). But there is nothing in the 1911 Act to provide that it cannot be amended, and even if there were such a provision it could not bind a successor Parliament. Once it is accepted, as I have accepted, that an Act passed pursuant to the procedures in section 2(1), as amended in 1949, is in every sense an Act of Parliament having effect and entitled to recognition as such, I see no basis in the language of section 2(1) or in principle for holding that the parenthesis in that subsection, or for that matter section 7, are unamendable save with the consent of the Lords. It cannot have been contemplated that if, however improbably, the Houses found themselves in irreconcilable deadlock on this point, the government should have to resort to the creation of peers. However academic the point may be, I think the Attorney General is right.
(3) Enlargement of powers
33. Sir Sydney relies on what Hood Phillips and Jackson describe as the general principle of logic and law that delegates (the Queen and Commons) cannot enlarge the authority delegated to them:Constitutional and Administrative Law, 8th edn (2001), p 80. He also prays in aid the observations of Lord Donaldson of Lymington speaking extra-judicially in support of his Parliament Acts (Amendment) Bill (HL Hansard, 19 January 2001, cols 1308-1309):
"As your Lordships well know, it is a fundamental tenet of constitutional law that, prima facie, where the sovereign Parliament - that is to say, the Monarch acting on the advice and with the consent of both Houses of Parliament - delegates power to legislate, whether to one House unilaterally, to the King or Queen in Council, to a Minister or to whomsoever, the delegate cannot use that power to enlarge or vary the powers delegated to him. The only exception is where the primary legislation, in this case the 1911 Act, expressly authorises the delegate to do so. In other words there has to be a Henry VIII clause."
To support his argument Sir Sydney cites a number of cases relating to colonial and Dominion legislatures, the most significant of these cases perhaps being R v Burah (1878) 3 App Cas 889, 904-905; Taylor v Attorney General of Queensland (1917) 23 CLR 457; McCawley v The King [1920] AC 691, 703-704, 710-711; Minister of the Interior v Harris 1952 (4) SA 769, 790; Clayton v Heffron(1960) 105 CLR 214 and Bribery Commissioner v Ranasinghe [1965] AC 172, 196-198. In written submissions in reply this argument was elaborated and the authorities further analysed.
34. The Divisional Court was not persuaded by this line of argument. Maurice Kay LJ, with whom Collins J agreed, said in para 27 of his judgment:
"Moreover, the whole line of authority relied upon by the claimants, dealing as it does with the relationship between the Westminster Parliament and the devolved legislatures of former colonies with (in Lord Birkenhead's phrase - McCawley, p 703) "controlled constitutions", is not strictly analogous to the context of the Parliament Acts. In my judgment there is no established principle applicable to this case which denies a power of amendment of the earlier statute in the absence of the express conferral of one specifically dealing with amendment. What is important is the language of the earlier statute. I do not doubt that it is sufficient to permit amendment in the manner that was achieved by the 1949 Act."
35. The Court of Appeal (para 62) regarded this approach as being an over-simplification, but reached the same conclusion. It accepted (para 66) the Attorney General's submission that, although in many instances the relevant legislation discussed in the cases contained an express power to make amendments to the constitution, the authorities did not establish a principle that such constitutions may not be appropriately amended without such an express power. It found (para 68) no constitutional principle or principle of statutory construction which prevents a legislature from altering its own constitution by enacting alterations to the very instrument from which its powers derive by virtue of powers in that same instrument if the powers, properly understood, extend that far. The Court of Appeal adopted (para 69) the opinion of Lord Pearce on behalf of the Privy Council in Bribery Commissioner v Ranasinghe, above, at p 198, where he held that a constitution can be altered or amended by the legislature
"if the regulating instrument so provides and if the terms of those provisions are complied with: and the alteration or amendment may include the change or abolition of those very provisions."
The question was one of construction (para 69), and the Court of Appeal did not detect anything in the language of section 2(1) which would prevent the amendment made by the 1949 Act.
36. I cannot accept the appellants' submissions on this issue, for three main reasons. First, for reasons given in para 25 above, the 1911 Act did not involve a delegation of power and the Commons, when invoking the 1911 Act, cannot be regarded as in any sense a subordinate body. Secondly, the historical context of the 1911 Act was unique. The situation was factually and constitutionally so remote from the grant of legislative authority to a colonial or Dominion legislature as to render analogies drawn from the latter situation of little if any value when considering the former. Thirdly, the Court of Appeal distilled from the authorities what is in my judgment the correct principle. The question is one of construction. There was nothing in the 1911 Act to preclude use of the procedure laid down by the Act to amend the Act. As explained in paras 29-32 above, the language of the Act was wide enough, as the Divisional Court and the Court of Appeal held, to permit the amendment made by the 1949 Act, and also (in my opinion) to make much more far-reaching changes. For the past half century it has been generally, even if not universally, believed that the 1949 Act had been validly enacted, as evidenced by the use made of it by governments of different political persuasions. In my opinion that belief was well-founded.
(4) The scope of the power to amend the conditions to which section 2(1) is subject
37. This submission is in essence a conclusion drawn from the propositions which precede it: see the summary in para 7 above. It necessarily follows from the reasons I have given for rejecting those propositions that I cannot accept that section 2(1) of the 1911 Act "does not authorise the Commons to remove, attenuate or modify in any respect any of the conditions on which its law-making power is granted". As should be clear, I reject the premises on which that conclusion is founded. If the appellants were right, it would, I think, follow that the 1911 Act could not be invoked, for instance, to shorten (or even, perhaps, lengthen) the period allowed in section 1(1) for passing money bills, or to provide that a bill for confirming a provisional order should rank as a public bill: a government bent on achieving such an object with a clear and recent mandate to do so would have either to accept the veto of the Lords or resort to the creation of peers. That would seem an extravagant, and unhistorical, intention to attribute to Parliament.
(5) The significance of the 1949 Act
38. I agree with the appellants that the change made by the 1949 Act was not, as the Court of Appeal described it (para 98), "relatively modest", but was substantial and significant. But I also agree with them and also the Attorney General that the breadth of the power to amend the 1911 Act in reliance on section 2(1) cannot depend on whether the amendment in question is or is not relatively modest. I have given my reasons for sharing that conclusion in paras 29-32 above. Such a test would be vague in the extreme, and impose on the Speaker a judgment which Parliament cannot have contemplated imposing.
Conclusion
39. I would dismiss this appeal for the reasons I have given. The 1949 Act and the 2004 Act are Acts of Parliament of full legal effect. In so concluding I take no account of any challenge under the Human Rights Act 1998 to the compatibility of the 2004 Act with the European Convention on Human Rights. That is not before the House. I would invite the parties to make written submissions on costs within 14 days.
40. I have reached my conclusion without reliance on statements made in the course of parliamentary debate on the 1911 or the 1949 Act. Were the language of the 1911 Act ambiguous or obscure it would have been necessary to decide, in the light of Pepper v Hart [1993] AC 593 and later authority, whether resort to Hansard would be permissible. In the event, I do not find the language of the 1911 Act to be ambiguous or obscure. It is similarly unnecessary to consider what, if any, legal effect flows from parliamentary approbation of the 1949 Act, as evidenced by amendment and consolidation of Acts passed under it.
41. It has been a source of concern to some constitutionalists (among them the late Lord Scarman) that the effect of the 1911, and more particularly the 1949, Act has been to erode the checks and balances inherent in the British constitution when Crown, Lords and Commons were independent and substantial bases of power, leaving the Commons, dominated by the executive, as the ultimately unconstrained power in the state. There is nothing novel in this perception. What, perhaps, is novel is the willingness of successive governments of different political colours to invoke the 1949 Act not for the major constitutional purposes for which the 1911 Act was invoked (the Government of Ireland Act 1914, the Welsh Church Act 1914, the 1949 Act) but to achieve objects of more minor or no constitutional import (the War Crimes Act 1991, the European Parliamentary Elections Act 1999, the Sexual Offences (Amendment) Act 2000 and now the 2004 Act). There are issues here which merit serious and objective thought and study. But it would be quite inappropriate for the House in its judicial capacity to express or appear to express any opinion upon them, and I do not do so.
No comments:
Post a Comment