Claimants’ three key grounds of challenge to the validity of the Hunting Act 2004;
1. Legislation passed under the 1911 Act does not constitute primary legislation; rather it is delegated or subordinate legislation;
2. The fact that an Act empowers a particular body of authority to legislate does not - unless specifically stipulated - give that body the power to modify or extend that authority;
3. The construction of the 1911 Act does not permit the House of Commons to alter its law-making power without the consent of the House of Lords.
COURT OF APPEAL
The Court of Appeal’s approach to the above mentioned challenges;
CHALLENGE 1 : The Attorney General argued that any legislation passed under the 1911 Act is equivalent to legislation passed with the consent of both Houses of Parliament, in both force and effect. The court rejected the Attorney General’s argument, as if accepted this would mean that the 1911 Act may be used to alter the life of Parliament by enacting legislation that excludes specific language that seeks to do so.
CHALLENGE 2 : The Court of Appeal held that in addition to the language used in the 1911 Act, the nature of the amendments made should also be regarded. Consequently, the court held that a legislature was not prohibited from altering its own constitution by amending the very instrument from which its power is derived, thus rejecting the claimant’s submission.
CHALLENGE 3 : The court held that the 1949 Act could amend the 1911 Act as nothing prevented the moderate amendments made by the House of Commons. Finally, the provision of the 1911 Act had been complied with and as a result the 1949 Act and the Hunting Act 2004 were valid.
THE EFFECT OF THE DECISION
The Appeal was dismissed and the court held that the 1949 Act and the Hunting Act are valid. The court found that the amendment made in the 1949 Act, reducing the delaying power of the lords, was ‘modest’ therefore, accepting the amendments made. However, the court argued that it would not be compelled to allow amendments that tried to alter the relationship set out in the 1911 Act, between the Houses of Parliament. The court gave no indications as to which amendments are acceptable, mentioning solely that the more extensive the amendments, the greater the chances that such amendments would be unacceptable.
HOUSE OF LORDS
LORD BINGHAM
Lord Bingham disagreed with the Court of Appeal’s assessment of the amendments made by the 1949 Act arguing that these were in fact extensive rather than “modest”. Lord Bingham found that the Attorney General raised a valid argument in that the degree of power to amend the 1911 Act cannot depend on the dimension of the amendments made. Therefore the Court of Appeal and the House of Lords reached the same conclusions in their judgment albeit on different grounds.
LORD NICHOLLS
According to Lord Nicholls the 1911 Act had received consent from both Houses of Parliament and was therefore enacted. Section 2 of the 1911 Act stipulated that a Bill may be enacted without the consent of both Houses as long as it conformed to the stipulated conditions. Therefore, the enactment of the 1911 Act was valid. However, Lord Nicholls argued that the 1911 Act does not authorise the House of Commons to amend the conditions on which its law-making power is granted and an attempt to do so would, in his opinion be unlawful according to section 2 of the 1911 Act.
Finally, Lord Nicholls argues that the 1911 Act as amended, has been used to ratify several statutes which both Houses of Parliament have treated as valid legislation. This led Lord Nicholls to argue that likewise the Hunting Act 2004 is also valid.
THE EFFECT OF THE DECISION
The House of Lords unanimously decided to dismiss the appeal. The court ruled that the purpose of the 1911 Act was not to enlarge the powers of the House of Commons, but to restrict the powers of the House of Lords to defeat measures supported by the House of Commons. Hence, both Houses of Parliament reached the same conclusions, nonetheless for different reasons.
SIGNIFICANCE OF THE WIDER PARLIAMENTARY AND POLITICAL CONTEXT
Parliamentary supremacy is the constitutional principle that the legislative competence of Parliament is unlimited. Therefore, an act is accepted as valid by the courts provided that it has passed through the requisite legislative stages. This case however, provided an opportunity for the courts to consider the validity of the Act which had been passed under the Parliamentary Procedure Act. The House of Lords considered the precise scope of the power delegated to the Crown and the House of Commons assessing whether the procedure could be used to amend section 2 itself, thereby extending the life of Parliament. The Court of Appeal concluded that there was power under the 1911 Act to make ‘modest’ amendments, however Lord Bingham disagreed, arguing that it was unnecessary to resolve the issue whether 1911 and 1949 Act could be relied on to extend the maximum duration of Parliament beyond five years. Additionally, the court assessed whether Parliament Act procedure could be used to affect other fundamental constitutional reform given that section 2 only made two stipulated exclusions; Money Bills and Bills to extend the life of Parliament. Such differing arguments reveal the wider Parliamentary and political context in the enactment of new legislation.
CONCLUSION
The courts’ decision means that further changes to the composition and functions of the House of Lords may be achieved under Parliament Acts without the consent of the House itself. Contrary to the Court of Appeal’s position, this is possible even if the changes are extensive as according to the House of Lords the reduction in the period of delaying power was of great constitutional importance. The Court of Appeal broke controversial new ground in reading the 1911 Act, giving greater authority to the House of Lords than was justified by political history. In a wider context, the concept of Parliamentary Supremacy remains unchanged however, for the first time the court appears to have checked the formal validity of enacting legislation without intervening on the substantive side.
Reviewed by the Administrative Court
Section 2(1) of the 1911 Act of Parliament
If a bill, having passed the House of Commons is rejected three successive times by the House of Lord and two years have passed between the date of the second reading in the House of Commons and the date when the Bill is enacted by the House of Commons, then the Bill can be enacted.
