Judgments - Jackson and others (appellants) v. Her Majesty's Attorney General (Respondent)

(back to preceding text)

    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

 
continue previous