The key findings of the Law Lords
13. In my earlier paper[33]
I criticised the unduly open-ended nature of the broad conclusions
reached by the Court of Appeal and I suggested that they were
controversial both on legal and political grounds. In argument
in the House of Lords, neither side supported the Court of Appeal's
view: (a) that the Parliament Act procedure could not be used
to make fundamental constitutional changes; and (b) that the reduction
in the delaying power of the Lords in 1949 was not a fundamental
constitutional change. It is therefore not surprising that none
of the Law Lords supported the Court of Appeal's reasoning. What
then were the matters on which the nine Law Lords were unanimous,
or on which there was a clear majority?
14. There were four main points of unanimity:
(1) The Law Lords supported the reasoning of
the Administrative Court and rejected the approach taken by the
Court of Appeal. They rejected the analogy with delegated legislation
on which the appellants relied as their central argument (Bingham,
Nicholls, Steyn, Rodger, Carswell).[34]
The aim of the 1911 Act was not to entrust the Commons with new
or enlarged powers, but to restrict the powers of the Lords (Bingham,
Hope, Rodger, Hale).[35]
(2) The 1911 Act must be understood as having
created a new way of making primary legislation (Bingham, Nicholls,
Steyn, Hope), having in effect "re-defined" Parliament
for the purposes authorised by the 1911 Act (Steyn, Hale, Brown).
The outcome of the 1911 Act procedure was the enactment of an
Act of Parliament, albeit with different words of enactment from
those that were generally used.
(3) In view of the express exceptions stated
in the 1911 Act (in particular, the restriction on the use of
the Act to extend the life of Parliament), there were no additional
implied exceptions to the scope of the Parliament Act procedure
(Bingham, Nicholls, Steyn, Hope, Hale: Rodger left this point
open; Carswell found it "difficult"). The 1911 Act procedure
could be used to effect major constitutional changes (Bingham,
Steyn, Rodger, Hale; Carswell reserved his position) and, in particular,
to amend the 1911 Act (Bingham, Nicholls, Hale; Hope found the
argument against this "not unattractive", but said that
the court could not ignore that Parliament had legislated four
times on the basis of the 1949 Act amendments).
(4) However, the 1911 Act expressly excluded
from the new way of making primary legislation a bill to extend
the life of Parliament. This exclusion was regarded by the Law
Lords as being of great importance, but they differed as to its
consequences. There was unanimity that a bill that directly sought
to extend the life of Parliament without first amending the 1911
Act could not be enacted without the approval of the Lords. However,
there was a difference of opinion as to the validity of a bill
that did not directly seek to extend the life of Parliament, but
first sought to amend the 1911 Act by deleting the exception of
bills that did extend the life of Parliament. The majority (Nicholls,
Steyn, Hope, Hale and Carswell) said that such an attempt would
not be lawful (Rodger and Brown reserved their position; Bingham
said that such an aim probably could be achieved).
15. Other issues were touched on to a greater
or lesser extent in the individual judgments. Several matters
concerned the process by which the judges should decide the case
and the material that they should take into account.
(1) There was general agreement that the issue
of the validity of the 1949 Act involved a question of law that
could be decided by the courts (Bingham, Nicholls, Hope), and
this was not challenged by the Attorney-General. The interpretation
of all statutes, including the 1911 Act, was a matter for the
courts (Nicholls, Carswell). Parliament had sole jurisdiction
over its own proceedings, but no such question arose in the present
case (Bingham, Nicholls).
(2) The historical context in which the 1911
Act was enacted was important in understanding the purposes being
addressed by that Act (and illuminating accounts of the history
were given by Bingham and Hale), but it was necessary to consider
the text of the Act closely, as it had been drafted with great
precision.
(3) There was no ambiguity or obscurity in the
provisions of the 1911 Act, and there was no need to look at Hansard[36]
to read what ministers had said about the bill (Bingham, Steyn,
Walker, Carswell, Brown; Nicholls said that it was useful to read
Hansard for confirmation of the position, and transparency required
that this should be recognised openly).
(4) There was a difference of opinion as to the
relevance of the fact that the practice of Parliament since 1949
indicated that Parliament had on four occasions legislated on
the basis that the 1949 Act was valid; some judges (Nicholls,
Hope and Carswell) found that the practice of Parliament in this
regard should be given weight.[37]
These judges relied on the need for "mutual respect"
to be observed between the main institutions of the state (the
legislature, the executive and the courts).
16. Other observations by individual judges related
to the fundamental question of the relationship between the courts
and the legislature, which in British constitutional tradition
has been referred to in absolute terms as the doctrine of the
"sovereignty of Parliament".
17. Two questions need to be kept in mind here
(a) are there any constitutional reforms that may not be achieved
by use of the Parliament Act procedure? (b) are there any constitutional
reforms that may not be achieved by ordinary Act of Parliament?
Neither question arose for a definitive answer in the case, although
the first question was often mentioned in the Lords' debate on
the Court of Appeal's decision. On this question, Lord Steyn said
that "strict legalism" suggested that the Attorney-General
might have been right to claim that the Parliament Acts could
be used to abolish the House of Lords. But he added that he was:
"deeply troubled about assenting to the validity
of such an exorbitant assertion of government power in our bi-cameral
system. It may be that such an issue would test the relative merits
of strict legalism and constitutional legal principle in the courts
at the most fundamental level."(para 101)
Lord Steyn proceeded to examine the broader implications
of the Attorney-General's claims in a passage that raised the
second of the two questions:
"If the Attorney-General is right the 1949 Act
could also be used to introduce oppressive and wholly undemocratic
legislation. For example, it could theoretically be used to abolish
judicial review of flagrant abuse of power by a government or
even the role of the ordinary courts in standing between the executive
and citizens. This is where we may have to come back to the
point about the supremacy of Parliament [emphasis supplied].
We do not in the United Kingdom have an uncontrolled constitution
as the Attorney-General implausibly submits."(para 102)
Lord Steyn referred to the European Union, devolution
to Scotland and the European Convention on Human Rights and observed:
"The classic account given by Dicey of the doctrine
of the supremacy of Parliament, pure and absolute as it was, can
now be seen to be out of place in the modern United Kingdom. Nevertheless,
the supremacy of Parliament is still the general principle
of our constitution. It is a construct of the common law. The
judges created the principle. If that is so, it is not unthinkable
that circumstances could arise where the courts may have to qualify
a principle established on a different hypothesis of constitutionalism"(para
102) (the first emphasis is original, the second is supplied).
Giving again the example of an attempt to abolish
judicial review or the ordinary role of the courts, Lord Steyn
asked whether the judges in future might have to consider whether
this was a constitutional fundamental "which even a sovereign
Parliament acting at the behest of a complaisant House of Commons
cannot abolish"(para 102). However, he concluded that it
was not necessary to explore the ramifications of this question,
since no such issues arose in the present case.
18. Although I have elsewhere discussed the legislative
supremacy of Parliament in an essay that largely agrees in substance
with the points made by Lord Steyn,[38]
these fundamental points plainly did not arise for decision in
this case. The judge's observations had no effect on the outcome
of the Hunting Act challenge. They may be contrasted with a well-known
statement by Lord Reid in 1969:
"It is often said that it would be unconstitutional
for the United Kingdom Parliament to do certain things, meaning
that the moral, political and other reasons against doing them
are so strong that most people would regard it as highly improper
if Parliament did these things. But that does not mean that it
is beyond the power of Parliament to do such things. If Parliament
chose to do any of them, the courts could not hold the Act of
Parliament invalid."[39]
Lord Reid's view of what constitutionalism implies
differs significantly from the 'different hypothesis of constitutionalism'
to which Lord Steyn refers, and which may possibly develop in
the future.
19. Do any of the other judgments afford support
for Lord Steyn's approach? As already stated, and contrary to
the view of the Court of Appeal, the Law Lords held that major
constitutional changes could be made under the Parliament Acts.
Nonetheless, in discussing legislative sovereignty we must remember
that powers may be very broad without being unlimited. On this
occasion, several judges were reluctant to accept that there were
no limits to the changes that could be made by legislation. Lord
Hope emphasised that a fundamental principle of the constitution
was "the universal rule or supremacy throughout the constitution
of ordinary law", a principle that in its modern form "protects
the individual from arbitrary government. The rule of law enforced
by the courts is the ultimate controlling factor on which our
constitution is based" (para 107). Later in his judgment
he said:
"…a conclusion that there are no legal
limits to what can be done under section 2(1) [of the Parliament
Act 1911] does not mean that the power to legislate which it contains
is without any limits whatever. Parliamentary sovereignty is an
empty principle if legislation is passed which is so absurd or
so unacceptable that the populace at large refuses to recognise
it as law" (para 120).
Lord Hope emphasised that the ultimate rule by which
people are prepared to recognise the existence of law "depends
upon the legislature maintaining the trust of the electorate",
adding:
"The principle of parliamentary sovereignty
which, in the absence of higher authority, has been created by
the common law is built upon the assumption that Parliament represents
the people whom it exists to serve" (para 126).
20. Baroness Hale emphasised that the concept
of parliamentary sovereignty which has been fundamental to the
constitution since the seventeenth century "means that Parliament
can do anything":
"The courts will, of course, decline to hold
that Parliament has interfered with fundamental rights unless
it has made its intentions crystal clear. The courts will treat
with particular suspicion (and might even reject) any attempt
to subvert the rule of law by removing governmental action affecting
the rights of the individual from all judicial scrutiny. Parliament
has also, for the time being at least, limited its own powers
by the European Communities Act 1972 and, in a different way,
by the Human Rights Act 1998. It is possible that other qualifications
may emerge in due course. In general, however, the constraints
upon what Parliament can do are political and diplomatic rather
than constitutional." (para 159)[40]
Lord Carswell stated that the conditions of law-making
that exist for the time being must be observed, and may if necessary
be enforced by the courts,[41]
but he expressly reserved his position on whether a legal challenge
could succeed to the use of the Parliament Act 1911 that aimed
to bring about what he described as "a fundamental disturbance
of the building blocks of the constitution" (para 178). Lords
Brown and Walker reserved their position on these wide-ranging
matters.
Conclusions
21. This decision means that further reforms
of the composition and functions of the House of Lords may be
carried through under the Parliament Acts, that is, without the
consent of the House itself. Contrary to the position of the Court
of Appeal, this is the case even if the reforms are "fundamental",
since the view taken of the 1949 Act in the Lords was that the
reduction in the period of the delaying power was itself of substantial
constitutional importance. Thus the creation of a maximum number
of days in which the Lords might be permitted to consider bills
coming from the Commons could be achieved under the Parliament
Acts. So too could the conversion of the House of Lords into a
wholly elected chamber, and possibly also the replacement of the
upper house's power to decide by a power merely to advise the
Government and the Commons. But the judgments do not settle the
question of whether the House of Lords could simply be abolished
and not replaced under the Parliament Acts.
22. The judgments of the Law Lords may be seen
by some as opening the door to a determined government with a
majority in the Commons to make such constitutional changes as
it thinks fit, regardless of the views of the second chamber.
However, the historical material reviewed by Lord Bingham and
Lady Hale makes clear (in my opinion) that the door has been open
in this way to a determined government ever since 1911. Against
the background of events in 1911, it was the decision of the Court
of Appeal in February 2005 that broke controversial new ground
in a reading of the 1911 settlement that gave greater authority
to the House of Lords than was justified by the political history.
23. As already stated, several indicators in
the judgments suggest that some of the Law Lords would be prepared
to revisit the classic propositions (by Dicey and others) laying
down the legislative supremacy of Parliament, should the need
for this arise. These passages are likely to be of great interest
to constitutional theorists, who will be likely to speculate on
the reasons that prompted such expressions of opinion that were
not required by the issues that had to be decided.
24. I am however doubtful whether speculation
of this kind would have immediate practical value. On the central
issues affecting the validity of the Parliament Act 1949, I have
long held the view that a challenge to the validity of that Act
would have no reasonable chance of success. For this and other
reasons, I do not consider that the Committee on the Constitution
need take any action specifically arising from the decision in
Jackson v A-G. Nor do I consider that the decision provides
an appropriate peg on which a new attempt to settle the powers
of the House of Lords in the legislative process should be made.
Nonetheless, if in the future the Committee should decide to examine
the role of the judiciary in a democracy founded upon the rule
of law but lacking a written constitution, the judgments in Jackson
will be amongst the contemporary material that will have to
be assessed in deciding whether that role is changing and (if
so) the likely direction of any change.
31 December 2005
25 Appendix 2. Back
26
[2005] UKHL 56; [2005] 3 WLR 733; [2005] 4 All ER 1253. Back
27
R (on application of Jackson and others) v Attorney-General
[2005] EWHC 94 (Admin). Back
28
(the same) [2005] EWCA Civ 126. Back
29
Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8
Cl & F 710, 725. Back
30
See in particular Pickin v British Railways Board [1974]
AC 765. Back
31
The "enrolled Act" rule also serves as convenient shorthand
for the proposition that flows from the doctrine of parliamentary
sovereignty, namely that the courts have no power to review the
validity of Acts of Parliament. The lack of that power explains
the unusual question coming before the courts in Jackson-namely
the question of whether the Hunting Act was in law an Act of Parliament.
This question must in logic be answered before the judges
can conclude that the document in question is in truth a document
whose validity they have no power to review. Back
32
Namely, that Parliament has "under the English constitution,
the right to make or unmake any law whatever; and further that
no person or body is recognised by the law of England as having
a right to override or set aside the legislation of Parliament",
Dicey, Law of the Constitution, 10th edn, 1959,
pp 39-40. Back
33
Appendix 2, paras 19-21. Back
34
Despite the risk of error or misinterpretation, I have felt it
worthwhile to attempt to identify in this way the judges who in
their judgments gave express support (or otherwise) to a particular
point. Where (in later instances) I name fewer than five judges
as supporting a proposition, it must not be supposed that the
proposition is necessarily a minority view, since support for
it may be implicit in other judgments. Back
35
The point being made here may at first seem difficult to understand,
since it seems absurd to say (as a matter of political power)
that the power of the House of Commons is not increased if the
power of the House of Lords is reduced. But the point is rather
that, in a legal sense of the word "power", legislation
that delegates power to legislate is generally conferring power
that the delegate would otherwise not have. In this sense, the
1911 Act was not conferring any new "power" to legislate
on the House of Commons, but provided a different procedure by
which a Bill could be presented for the royal assent when this
was considered necessary. Back
36
Under the rule in Pepper v Hart [1993] AC 593. Back
37
Lord Steyn disagreed, holding that Parliament had not pronounced
on the question. Lord Brown took the view that the court must
decide the case as if the Parliament Act 1949 had only just been
enacted: on this approach, the practice of Parliament after 1949
was irrelevant. Back
38
See J Jowell and D Oliver (ed), The Changing Constitution
(5th edn, 2004), chapter 2 (by A W Bradley), "The
Sovereignty of Parliament- Form or Substance?" Back
39
Madzimbamuto v Lardner-Burke [1969] 1 AC 645, 723. This
passage was cited by Lord Carswell at [177]. Back
40
See also the suggestion by Lady Hale (at 163) that Parliament
could "re-define itself upwards". She was here referring
to a question much discussed by legal theorists, whether Parliament
could bind its successors by requiring an additional step (such
as a referendum) before certain changes (such as abolishing the
Scottish Parliament) could be made. The orthodox view based on
Dicey's analysis is that such an attempt would be nugatory since
it could simply be ignored by a future Parliament. Back
41
Meaning that, if prescribed conditions were not observed by Parliament,
the courts would have power to declare as a nullity any legislation
that had been affected by this departure from the law. Back
