Parliament and the Courts:
Hunting for boundaries
The Hunting Act JR, the Parliament Acts
and Pepper v Hart
a presentation by
GORDON NARDELL
Thursday 22nd March 2005
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The Hunting Act JR.........................................................................................................2
The challenge:................................................................................................................2
The outcome: .................................................................................................................2
Impact on the Parliamentary process ............................................................................3
A novel jurisdiction?......................................................................................................3
The problem of limits.....................................................................................................4
Pepper v. Hart and its limits...........................................................................................5
Parliament’s treatment of earlier legislation..................................................................5
What is the position now?..............................................................................................5
The upshot…..................................................................................................................6
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The Hunting Act JR
R. (Jackson and others) v. HM Attorney General
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The challenge:
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Hunting Act 2004: RA 18.11.04; in force 18.2.05. Proceedings issued 19.11.04.
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Passed without the Lords’ consent under the procedure prescribed by Parliament Act
1911, s. 2 as amended by Parliament Act 1949: ie. vetoed by the Lords in only one
previous session, not two as the 1911 Act originally provided.
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The 1949 Act was ineffective to make that amendment because itself enacted against
the Lords’ will under the 1911 Act scheme. The procedure prescribed by the 1911
Act was not available for this purpose because the 1949 Act effectively enlarged the
powers of the Commons at expense of the Lords. That infringed the “bootstraps”
principle: a body given legislative power by an instrument cannot use that power
to amend the instrument in a way that enlarges the power, unless the instrument
expressly enables that.
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So the 1949 Act is not an Act of Parliament at all. Nor is the Hunting Act 2004 –
nor the other three Acts enacted under the amended s. 2 procedure: War Crimes Act
1991, European Parliamentary Elections Act 1999, Sexual Offences (Amendment)
Act 2000.
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Interim relief: Christmas Eve choreography.
The outcome:
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Divisional Court 28.1.05 [2005] EWHC 94 (Admin) – Maurice Kay LJ, Collins J:
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Claim dismissed.
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Question of construction: 1911 Act s. 2(1) applies to
“…any Public Bill (other than a Money Bill or a Bill containing
any provision to extend the maximum duration of Parliament
beyond five years)…”.
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That means what it says. No room for any implied limitation.
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Early CA date – 7/8 Feb. So no application for interim relief.
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Court of Appeal 16.2.05 [2005] EWCA Civ 126, (Lord Woolf CJ, Lord Phillips
MR, May LJ):
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Appeal dismissed.
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More subtle approach: not just a question of construction but the broader
constitutional context of the 1911 Act.
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No need for an express amending power: Parliament can use the 1911
Act procedure to make constitutionally significant legislation,
including legislation amending the 1911 Act.
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But there must be some limits. Eg. the 1911 Act procedure could not be
used to make fundamental change such as abolishing the House of
Lords or extending indefinitely the duration of a Parliament.
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1949 Act changes were “relatively modest and straightforward” and
within the scope of the 1911 Act power.
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Leave to appeal, and interim relief, refused. No order for costs.
HL granted leave to appeal 9.3.05. For hearing July.
Impact on the Parliamentary process
A direct hit: the courts’ power to police the Parliament Acts
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A novel jurisdiction?
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Parliamentary sovereignty: the “enrolled Act” rule; “manner and form” requirements;
Art 9 Bill of Rights 1688
- “The result of the use of the 1911 Act was in form to produce an Act of
Parliament… but… that Act will not be valid if outside the scope of the
1911 Act” [45]
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CA recognising novelty and legitimacy of courts’ jurisdiction:
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in considering the effect of the 1911 Act “the Administrative Court was
acting as a constitutional court. There was no precise precedent for the
jurisdiction it was exercising.” [12]
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“… The circumstances in which it will be appropriate for the Courts to
become involved in issues of this nature are limited, but in this case it is
perfectly appropriate… If the courts did not adjudicate on the issues,
there would be great uncertainty as to the legal situation, which could
have most unfortunate consequences after 19 February 2005… In
exercising this role, the Administrative Court and this Court on appeal
are seeking to assist Parliament and the public by clarifying the legal
position when such clarification is obviously necessary”. [13]
[emphasis added]
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The problem of limits
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Where are they?
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“… The justification would be the difference in scale that the changes to
our constitutional arrangements involved in reducing a delaying power
from two years to one, when compared with either enabling the life of
Parliament to be extended beyond five years or abolishing the House of
Lords. The latter changes are so fundamental that they could only be
enacted or expressly made possible by what is traditionally the Sovereign
Parliament. … [W]e detect [from the 1911 Parliamentary debates] no
consensus for a view that the 1911 Act was intended to give the
Commons directly or indirectly power to change fundamentally this
country’s constitutional arrangements.” [48]
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“The 1949 Act left the relationship between the House of Lords and the
House of Commons substantially the same as it was before the 1949 Act”
[99]
What is “fundamental”?
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Lords reform?
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Reform of Lords has been effected under the 1911 Act: Welsh Church
Act 1914 removed Welsh bishops from the Lords. That Act “raises a
question” (CA [91]) -- which CA left unanswered.
A headache for the House Authorities:
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Divisional Court recognised the problem:
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“…there is no scope for interpreting s. 2 as containing an exclusion in
relation to any Bill to amend the provisions of the 1911 Act. I also
derive some assistance from a submission made by Mr. David Pannick
QC on behalf of the League Against Cruel Sports. He points to s. 2(2)
and the obligation placed on the Speaker to sign a certificate that “the
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provisions of this section have been duly complied with”. It would be an
unduly onerous obligation if there were considered to be such provisions
which are not manifest from the words of section 2(1).” [17] [emphasis
added]
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CA dismissive [52].
A sideswipe: mind what you say
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Pepper v. Hart and its limits
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1911 debates in both Houses indicated:
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no intention to introduce limitations in the scope of the s. 2(1) other than
those appearing in s. 2(1) itself;
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amendments expressly adding a further limit, to prevent the power
applying to a Bill to amend the 1911 Act, were defeated on a Division in
the Commons and withdrawn in the Lords;
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more generally, the Government’s intentions in promoting the Bill
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Pepper v. Hart: where a provision is ambiguous, obscure or leads to absurdity,
reference may be made to a clear statement by a Minister or other promoter of the
Bill, together if necessary with such other Parliamentary material as is necessary
to understand such statements and their effect.
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HL authority limits admissibility of Ministerial statements where the question is
whether a discretionary power was intended to be of limited scope: R. v. SSETR ex
parte Spath Holme Ltd [2001] 2 AC 349. Since issue in Jackson was scope of a
power, Claimants objected to reference to 1911 Hansard.
Parliament’s treatment of earlier legislation
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Parliament has evidently treated the 1949 Act as a valid statute.
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Parliament’s “clear understanding” in later legislation of the meaning of earlier
legislation may be admissible as an aid to construction of the earlier legislation. But
“subsequent legislation, if it proceeded on an erroneous construction of previous
legislation, cannot alter the previous legislation” Cape Brandy Syndicate v.IRC
[1921] KB 403.
What is the position now?
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The Divisional Court’s finessed solution [29]:
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s. 2(1) “clear and unambiguous” so no need to rely on Hansard.
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But “pertinent to observe, as a matter of history” that express
amendments defeated.
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Maurice Kay LJ obiter: “I tend to the view that Pepper v. Hart is not
necessarily inapplicable where there is ambiguity in the statutory
language in which the power is expressed, as opposed to the situation in
Spath Holme which was not one of ambiguous statutory language”.
The Court of Appeal’s coach and horses:
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Appeal “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…”. The arguments “would, in the absence of
further assistance, have left us in doubt as to what Parliament intended
in respect of its scope”. [77]
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Consideration of 1911 Hansard “discloses beyond doubt the
understanding of both the Lords and the Commons as to the extent of
the constitutional change to which they were agreeing, albeit, so far as
the Lords were concerned, under duress. The relevant Parliamentary
material is far more cogent than a mere ministerial statement” [79]
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As to Parliament’s post-1949 behaviour, Cape Brandy principles “cannot
be strictly applied in this case” Where the issue is a “consensual
constitutional change in the manner in which sovereign power is
exercised”, the nature of the change depends not only on the legislative
language but “On general recognition of the nature of the change, as
demonstrated… by all affected by it. This is what Hart described as the
`rule of recognition’ in… his work on The Concept of Law”. [90]
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It is “vain to argue that… the 1911 Act provided for entrenched
restrictions on the manner in which the powers granted by that Act
should be exercised, if no one who was involved appreciated those
restrictions at the time, and if all concerned have acted in disregard of
such limitations in the lengthy period which has since elapsed”. [90]
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Reference to Parliamentary debates as part of this reasoning does not
mean the court is “adjudicating on the propriety of what occurred in
Parliament” [13]
The upshot…
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Divisional Court’s remarks suggest a potentially wider role for Pepper v. Hart
references in cases on width of a discretionary power. Ministers may wish to be
careful; but so may others with an interest in the scope of powers proposed by a Bill.
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CA approach sidesteps Pepper restrictions entirely and involves analysis of a wide
range of conduct by Parliamentary actors spanning a lengthy period. The Hunting
Act JR may be a unique case, but:
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The principle is expressed generally and could be extended to other cases
involving disputes about the scope of legislation of major constitutional
significance:
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European Communities Act 1972? Future constitutional legislation?
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Reflects wider judicial distaste for Pepper: CA [75]
Gordon Nardell
March 2005
About the speaker
A former member of the Parliamentary Counsel Office, Gordon Nardell undertakes a wide range of drafting,
advisory and legislative advocacy work on behalf of public bodies, NGOs and commercial organizations. His
practice includes preparation of private Members’ Bills, amendments to UK Government and Scottish Executive
legislation, consultation responses and submissions on European and domestic legislation and policy initiatives,
and advice on rule-making by regulatory and professional bodies. The UK and Scottish legislation Gordon has
worked on includes the Competition Act 1998, Human Rights Act 1998, Access to Justice Act 1999, Financial
Services and Markets Act 2000 and Protection of Wild Mammals (Scotland) Act 2002. He has given evidence to
Parliamentary and ministerial bodies including the Scottish Parliament’s former Justice and Home Affairs
Committee, the Burns Inquiry 2001 and the DEFRA hunting hearings in 2002.
Gordon is author of the Current Law Statutes annotations on the Hunting Act 2004, and subsequently appeared
as junior counsel for the League Against Cruel Sports in its intervention in the Hunting Act JR.
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