The second question, whether the principle ‘delegates
(Queen and Commons) cannot enlarge the authority delegated
to them’ derives from Professor O Hood Phillips in Constitutional
and Administrative Law was applied by Lord Donaldson of Lymington
in introducing the Parliaments Acts (Amendment) Bill in 2001
(or 2201, in the Internet report from BAILII). Rafts of colonial
and dominion cases were cited in support of this contention.
Under this kind of legislation, the Attorney General submitted
that
‘…
there is no rule of construction that a power to legislate
to alter a constitutional instrument has to be express. …
The rule is that courts should not read in any limitation
to a legislative power other than what is expressly laid down
in the instrument conferring that power.’
Dicta
of Lord Birkenhead LC in McCawley v The King show that, ‘It
is of the greatest importance to notice that where the constitution
is uncontrolled [as is the case in the United Kingdom] the
consequences of its freedom admit of no qualification whatever.’
It seems that Lord Birkenhead also thought that there was
a kind of inherent jurisdiction in colonial legislatures,
although they were subject to a specific creating instrument,
unlike the United Kingdom Parliament.
In The
Bribery Commissioner v Ranasinghe an Act in Ceylon was neither
endorsed by the Speaker, nor was there a two-thirds majority
as required for the certificate. The Privy Council held that
the orders made against the appellant were void, because the
tribunal had been appointed under an invalid statute. Sovereignty,
Lord Pearce said, or whether a constitution is uncontrolled
or not, is a separate issue from having regard to conditions
imposed by the regulating instrument. Crucial to this kind
of case is the statement he made about the kind of constitution
that the Privy Council was examining:
But the
proposition which is not acceptable is that a legislature,
once established, has some inherent power derived from the
mere fact of its establishment to make a valid law by the
resolution of a bare majority which its own constituent instrument
has said shall not be a valid law unless made by a different
type of majority or by a different legislative process.
The whole
point about the UK constitution is that Parliament is not
such a legislature. It has not been created by a ‘constituent
instrument’ and its origins and source of power are
shrouded to a large extent in mystery, at least in the sense
that it is interwoven with royal authority and in a relatively
dark age. Other cases derived from colonial legislatures were
cited. The Court of Appeal noted, following Maurice Kay LJ
(with whom Collins J concurred) in the Administrative Court,
that,
‘The
whole line of authority was not strictly analogous. It deals
with the relationship between the Westminster Parliament and
the devolved legislatures of former colonies. In his [Maurice
Kay LJ] 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. He did not doubt that s.2(1) of the
1911 Act is sufficient to permit amendment in the manner which
was achieved by the 1949 Act.’
The Court
of Appeal felt, however, that this analysis was an ‘oversimplification’.
The Attorney General agreed with the Administrative Court’s
analysis (he would, wouldn’t he?) and suggested that
R v Burah was more supportive of a view that there is no ‘general
rule of law that a legislature cannot amend its own constitution
without an express power to do so’ than the opposite
proposition urged by Sir Sydney. He submitted that ‘there
was no Commonwealth case in which a valid amendment to a constitution
had been found to have occurred in the absence of express
statutory words saying in terms that a legislative body had
power to amend the constitution.’ The Attorney General,
referring to Clayton v Heffron, disagreed. There, a valid
Act had abolished the Legislative Council, following a referendum.
Declining to resolve the difference of views about that case,
the Court of Appeal preferred the
‘Attorney
General's more general submission that, although in many instances
the relevant legislation contained an express power to make
amendments to the constitution, the authorities do not establish
a principle that such constitutions may not be appropriately
amended without such an express power.’
They went
on to say,
‘67.
So far as is material to the present appeal, we derive the
following synthesis from the authorities to which we have
referred. A sovereign legislature, uncontrolled by antecedent
written constitutional instrument, may alter its own legislative
powers and procedures by legislation duly enacted in accordance
with its embedded procedures. The resulting amended constitution
is controlled to the extent provided by the legislation. Thereafter,
further constitutional alterations may be validly enacted
under and by means of the altered powers and procedures. Such
alterations may include alterations to the powers and procedures
prescribed by the first legislation. This is, however, all
subject to the proviso that the making of these subsequent
alterations is within the power afforded by the first legislation
properly understood, and provided that they are duly enacted
in accordance with its procedures.’
Whilst
it was clear that the Commonwealth cases were not truly analogous,
it was not an act of bootstrap levitation when the Court of
Appeal was content to accept that, ‘in our judgment,
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.’
It was ultimately a matter of construction of the regulating
legislation.
This leads
to the third question: ‘On a proper construction of
the 1911 Act, does it authorise the Commons to remove or attenuate
the conditions on which its law-making power are granted?’
It would be an overstatement to suggest that because certain
bills (money bills and those extending the life of Parliament)
are specifically excluded from s 2(1), that no other bills
should be implicitly excluded. Section 2(1) might be amended,
at least to the ‘relatively modest extent’ achieved
by the 1949 Act.
The Court
of Appeal departed from the Administrative Court that had
approached the task simply as a matter of statutory interpretation.
Statements around the two Acts and the way in which they had
been treated, was highly material. The issue concentrated
on whether the ‘relatively modest changes’ of
the 1911 Act by the 1949 Act were really ultra vires the 1911
Act. The way in which the earlier Act had been treated by
both Houses then and since was consistent and ‘a most
material factor’ in deciding the validity of the Hunting
Act.
Obviously
Pepper v Hart is relevant to the treatment of the statements
made in Parliament, a case described as ‘a particularly
hard case which, it has been suggested, led to bad law.’
There, Lord Browne-Wilkinson’s leading speech provided
three rules for the situations in which recourse to Parliamentary
materials (notably Hansard) might be used:
‘…the
exclusionary rule should be relaxed so as to permit reference
to Parliamentary materials where (a) legislation is ambiguous
or obscure, or leads to an absurdity; (b) the material relied
upon consists of one or more statements 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 and (c) the statements relied
upon are clear.’
Lords
Hoffmann and Steyn have both criticised the relaxation of
the exclusionary rule and the application of Pepper v Hart
was circumscribed in R v Secretary of State for the Environment,
Transport and the Regions, ex parte Spath Holme Ltd. Sir Sydney
argued that in that case ‘Lord Bingham of Cornhill,
Lord Hope of Craighead and Lord Hutton all agreed that it
was not legitimate to have regard to a ministerial statement
to elucidate not the meaning of a provision but the scope
of a statutory power.’ The parties in the Court of Appeal
all said that the 1911 Act was clear but each contended that
a different result could be reached. They are, after all,
lawyers and it might be expected: what is clear to one counsel
is clearly different to another. The fault lies perhaps not
so much in the language itself but in the ingenuity of lawyers’
powers to strain meaning. What is, perhaps, surprising is
that there is no mention of the linguistic maxim expressio
unius est exclusio alterius (the express mention of one matter
excludes another). If money bills and those which attempt
to extend the duration of Parliament are specifically mentioned
as not being covered by the special procedure of the Parliament
Act, surely it means that any other bill may be covered by
that procedure. If the eiusdem generis rule might have been
possible to invoke, a further consideration of interpretation
would have been required. It is difficult to see how further
bills are implied into s 2 if the expressio unius rule is
taken seriously.
The Court
of Appeal considered that the 1911 Act, having conferred powers
subject to express restrictions, implicitly meant that its
powers should not be used to remove those restrictions, as
Sir Sydney contended. Sir Philip Magnus, in introducing an
amendment to the 1911 Act to prevent any Bill modifying the
Act without the approval of both Houses, said, ‘ …
the proposal is that the Constitution of this country cannot
be again changed any more than it is being changed now without
either the assent of both Houses of Parliament.’ The
Prime Minister, Mr Asquith, rejected this amendment and Mr
Balfour responded, ‘Now it seems that that [Act] may
be the fruitful parent of any number of further revolutions,
each one of which fritters away what you call the safeguards.’
Notwithstanding these objections, the amendment was not approved,
and both in the Commons and the Lords it was accepted that
it was possible for the 1911 Act to be amended in such a way
that the 1949 Act did, in fact, achieve. This makes it clear
that it was possible for the 1911 Act to be amended by the
use of the procedure that the Act had itself established.
As to
the subsequent use of the 1911 Act, its first invocation,
in passing the Welsh Church Act 1914, showed that it could
be employed in some fundamental and constitutionally significant
issues. By disestablishing the Welsh Church, this Act removed
the Welsh bishops from their seats in the House of Lords.
It might be surprising if the 1911 Act were to be restricted
to matters of no moment, for in such cases it would be hard
to see why the House of Lords should trouble itself to resist
trifling questions. It seems clear, however, that the 1914
Act shows that constitutional change is not outwith the scope
of the 1911 Act. The same result is demonstrated by the Government
of Ireland Act 1920, which also effected constitutional change
by establishing ‘Home Rule’. Indeed, it was with
these highly contentious reforms in mind that the 1911 Act
was passed in the first place.
The Preamble
to the 1911 Act, Quentin Hogg MP reminded the Commons in 1949,
showed that it was to be a temporary measure, as it were,
holding the fort against Lordly power until such time as the
Lords had been dispersed through fresh legislation. As the
Court of Appeal noted, Mr Hogg was not suggesting that the
1911 Act could not be used to amend itself through the 1949
Act, ‘merely that it was outrageous to do so’.
No one at the time of the passing of the 1949 Act seems to
have thought that this was an ultra vires use of the 1911
Act. Might one think that it was largely the mischievous intervention
of Professor Wade that seems to have started this false hare
and that, in the light of his mysterious letter to Lord Donaldson,
he was never advocating the position that Parliament could
not reconstitute itself, if necessary using the powers of
the 1911 Act. Even naughty Sir Willy Wade in his ‘The
Basis of Legal Sovereignty’ in 1955 conceded that the
basis of sovereignty ‘can be resolved only in one way,
by recognising that sovereignty is a political fact for which
no purely legal authority can be constituted even though an
Act of Parliament is passed for that very purpose.’
Sovereignty is more of a political than a legal fact.
We know
that the amendments introduced by the Parliament Act 1949
have been employed four times so far: the War Crimes Act 1991,
the European Parliamentary Elections Act 1999, the Sexual
Offences (Amendment) Act 2000, and now the Hunting Act 2004.
In the first prosecution under the War Crimes Act 1991, R
v Serafinowicz, a submission was made that the 1949 and 1991
Acts were invalid, but the apparently brief ruling of Potts
J has likewise disappeared from the record. This first trial
was inconclusive but a second prosecution ended with the defendant
being imprisoned. Moreover, the 1991 War Crimes Act has itself
been regularly amended by both the Criminal Justice and Public
Order Act 1994 and the Criminal Procedure and Investigations
Act 1996. This recognition of legislation passed under the
special procedure by Acts passed under the general tripartite
process would, it is submitted, suggest that the validity
of the earlier Act cannot be challenged because its subsequent
amendment is analogous to an estoppel to a challenge of the
entire validity of the earlier.
There
has also been subsequent recognition of the European Parliamentary
Elections Act and the Sexual Offences (Amendment) Act. The
Court of Appeal commented that,
‘These
are cogent examples of the general recognition by Parliament,
the Queen, the courts and the populace, that the 1949 Act
was a proper exercise of sovereign legislative power and that
the same is true of legislation enacted pursuant to the provisions
of the 1949 Act’.
It will
be seen in the third part of this saga that the House of Lords
was somewhat sceptical of the term ‘populace’
in the role of granting general acclaim. The Court of Appeal
concluded, in dismissing the appeal, that, ‘ …
the greater the scale of the constitutional change proposed
by any amendment, the more likely it is that it will fall
outside the powers contained in the 1911 Act’. The modification
of the 1911 Act by the 1949 Act was legally effective as it
did not strike at the root of any fundamental constitutional
change.
In the
last part of this set of articles about the elemental struggle
between courts and Parliament to see how power can be contained,
we shall see how the views of the Court of Appeal Three (effectively
a trinity as there were three parts in one judgment) were
treated by the Nine Lords, whose Time is fast running out
as the spectre of a Supreme Court looms.
Richard
Ramsey
Barrister,
and
Senior Lecturer in Law,
Oxford Brookes University
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