I have been asked, informally, to advise on aspects of the proposed legislation to ban or regulate hunting.
1. Questions to consider
I am asked to consider the following four questions:
i Does the “Salisbury Convention” restrict the power of the House of Lords to block a bill banning or regulating hunting which has been passed by the House of Commons?
ii Can the Parliament Acts can be invoked in respect of a Bill passed by the House of Commons in the following circumstances:
a) Where the bill is a private members bill, and
b) Where there was no manifesto commitment to the content of the bill?
iii What is the time period in which a new bill may come into effect under the Parliament Acts, where a similar bill was blocked by the Lords in the previous session of Parliament?
iv Is a Speaker’s certificate (to the effect that a bill passed by the Commons is subject to the Parliament Acts) amenable to review by the courts (judicial review)?
My conclusions are set out in Part 6 below.
2. Political Background
Labour’s manifesto in 1997, New Labour Because Britain Deserves Better, promised a free vote on the issue of hunting with hounds. Following unsuccessful private members bills, the government in 2000 established the Burns Inquiry into the matter, which reported in June 2000. Following the report, the Queen’s Speech on 5th December 2000 contained a commitment to introduce a Hunting Bill, a multiple-choice bill containing three options: supervision, regulation (the so-called “middle way”) and prohibition. When introduced in the 2000-01 session, the Commons voted clearly in favour of prohibition, but the House of Lords rejected this option, opting for supervision. [1] The Bill lapsed with the calling of the 2001 general election.
The Labour manifesto in 2000, Ambitions for Britain, committed the government to allowing the Commons an early opportunity to express its view on hunting with hounds, and then enabling Parliament to reach a conclusion on this matter, failing which the government would “look at how the disagreement would be resolved”. The full commitment is as follows: “The House of Commons elected in 1997 made clear its wish to ban fox-hunting. The House of Lords took a different view (and reform has been blocked). Such issues are rightfully a matter for a free vote and we will give the new House of Commons an early opportunity to express its view. We will then enable parliament to reach a conclusion on this issue. If the issue continues to be blocked we will look at how the disagreement can be resolved.”
Following the 2001 election, the Queen’s Speech on 21st July 2001 reiterated the commitment to a free vote to determine the will of the Commons. On the 18th March 2002, a special debate on the three options originally set out in the Hunting Bill saw the Commons again strongly support a total ban, with the Lords again opting for the limited supervision approach the next day. On 21 March 2002, the Minister for Rural Affairs, the Rt. Hon. Alun Michael MP, made a statement to the Commons, announcing that the government would carry out a consultation process over six months, culminating in a new Bill: if this Bill is frustrated, “the Government could not properly stand in the way of the application of the Parliament Act, which…of course would be a matter for this House”. He made it clear that the Government would quickly re-introduce the bill as quickly as possible: “it will be then be for this House and its procedures – and indeed for Mr. Speaker – to determine whether the Parliament Act applies”. The statement set out the principles that would guide the consultation exercise, and emphasised Labour’s manifesto commitment to enable Parliament to reach a conclusion on the issue. The consultation is now in progress, with public hearings scheduled. For the text of the statement and information on the consultation process, see www.defra.gov.uk/erdp/hunting/hunting.htm
In cases where the House of Commons wishes to override the Lord’s rejection or amendments of a bill, it may invoke the Parliament Acts of 1911 and 1949. Conventional practice regulates the relationship between the two Houses, based on a statement by Lord Salisbury in a debate in 1964 [2] (known as the “Salisbury Convention”) and reinforced by a statement of Lord Carrington in 1975 [3], to the effect that the House of Lords should not insist on opposing a government Bill for which there is a mandate from the people.
Would a bill banning hunting qualify under the Salisbury Convention? As we have seen, Labour’s manifesto commitment is confined to ensuring a free vote and enabling Parliament to reach a conclusion on the matter. The Lords would not therefore be in breach of the Convention if they continued to oppose the prohibition of hunting, as no popular mandate in favour of a particular option has been obtained from the electorate via a manifesto commitment. The government could argue that they have fulfilled a manifesto commitment in favour of a resolution of the debate, and Alun Michael’s statement emphasised this part of the manifesto. However, given that the manifesto refers to “Parliament” reaching a conclusion, not to the will of the Commons prevailing, the Lords would not be acting contrary to the Salisbury Convention in continuing to block the Bill. [4]
4. The Parliament Acts
In cases where the House of Lords blocks or amends a bill passed by the House of Commons, the Parliament Acts (The Parliament Act 1911 as amended by S. 2 (4) of the Parliament Act 1949) provides a mechanism for the bill to pass into an act irrespective of the Lords’ opposition. Parliament Acts may only be used in the case of a money bill, or where the Lords, over two successive sessions, have rejected the same bill.
The Act does not apply to bills extending the life of a Parliament, local or private legislation, public bills confirming provisional orders, or to delegated legislation such as statutory instruments subject to the affirmative resolution procedure. Here (as opposed to the Salisbury Convention) there is no exemption either for private members’ bills or bills which do or do not fulfill a manifesto commitment.
The nature of any anti-hunting legislation would therefore not cause appreciable difficulties with respect to the application of the Parliament Acts, even if passed by a free vote and without a clear popular mandate in the form of a manifesto commitment. The use of the Acts is not confined to government legislation, or to legislation expressly authorised by manifesto: their validity lies in permitting the will of the (elected) House of Commons as a collective ultimately to prevail over that of the (unelected) House of Lords. A precedent does exist: the War Crimes Act 1991 became law by means of the Parliament Act procedure following a free vote in the Commons and in the absence of a manifesto commitment.
To satisfy the conditions of the Parliament Acts, a bill must be the same as a bill which had been submitted to the Lords before being previously blocked. The only exceptions to this requirement are that a bill may contain such alterations as are certified by the Speaker: (a) to be necessary owing to the time that which has elapsed since the date of the former Bill, or (b) to represent any amendments which “have been made by the House of Lords in the former Bill in the proceeding session”. [5] The use of the Parliament Acts in this context is therefore conditional on any bill being re-introduced being considered by the Speaker to be identical or otherwise within the scope of s.2(4). If invoked, then the legislation will become law (subject only to the formality of Royal assent), provided that one year has passed between the date of the bill’s second reading in the Commons in the first of the two sessions and the date of its third reading in the Commons in the second session. [6]
It is important to note that if a new anti-hunting bill is passed by the Commons in the future, those time periods will start to run after the second and third readings respectively in the Commons of that (new) bill, unless the bill has been certified by the Speaker as identical to the previous bill, in which case the time periods will be based upon the second and third readings of the previous bill.
Inconsequential variations in language may not render a bill fundamentally non-identical to a previous bill. To what extent such variations are considered inconsequential is a matter of what lawyers call “fact and degree”. There is no bright line. If any bill passed by the Commons in the current session contains different provisions from the previous bill in respect of the definition of prohibited offences, the scale of penalties, implementation procedures and other matters, then any such provisions will in all likelihood not come within the scope of the permitted alterations under the Parliament Acts, i.e. they will not be necessary due to the time that which has elapsed since the date of the former Bill, or represent any amendments which “have been made by the House of Lords in the former Bill in the proceeding session”. In such a case, the Speaker should not certify the bill as one to which the Parliament Acts may already be aaplied, [7] and the time period would have to begin from the date of the new bill’s second reading in the Commons.
The possibilities of contesting a determination by the Speaker that a bill comes within the terms of the Parliament Acts arenot strong. Section 3 of the Act proclaims that any certification of the Speaker given under this Act “shall be conclusive for all purposes”, and “shall not be questioned in any court of law”, a clause specifically inserted to preclude the possibility of review. Nowadays, however, for various reasons which need not be canvassed here, such clauses are of doubtful effect in restricting judicial review.
However, even in the absence of such a clause from general legislation, the House of Lords in British Railways Board v Pickin [8] considered that the courts in England had no power to question the legality of the passage of a bill through Parliament, disagreeing with Lord Denning in the Court of Appeal, and endorsing earlier precedent in Edinburgh and Dalkeith Railway Companies v Wauchope [9] and Lee v Bude and Torrington Railway Junction Rly Co. [10] A unanimous House of Lords held in Pickin that “among the privileges of the Houses of Parliament is the exclusive right to determine their own proceedings” (per Lord Simon) [11] and that a court could only construe and apply an Act, not inquire into how it was passed, or into the internal operations of Parliament or whether it had been passed as a result of reliance upon false or misleading facts being presented to Parliament.
In Australia, greater leeway exists to an extent for judicial scrutiny of parliamentary adherence to procedural norms, and the Pickin approach has not been adhered to rigorously. The High Court of Australia in Victoria v Commonwealth (the PMA case) (1975) 134 CLR 81 commented, per Barwick CJ:
The court in my opinion, not only has the power but, when approached by a litigant with a proper interest so to do, has the duty to examine whether or not the law-making process prescribed by the Constitution has been followed and, if it has not, to declare that that which has emerged with the appearance of an Act, though having received the royal assent, is not a valid law of the Commonwealth”. (at p. 118.)
The same point had been made by Dixon CJ, McTiernan, Taylor and Windeyer JJ in Clayton v Heffron (1960) 105 CLR 214, and in Conway v Cope (1974) 131 CLR 432, the High Court recognised that the court could intervene to grant relief where improper procedure had been followed, that relief not being limited to post-enactment remedies:
“In my opinion, the court in point of jurisdiction is not limited to that method [i.e. testing validity post-enactment] of ensuring the observance of the constitutional processes of law-making. It seems to me that in any appropriate, though no doubt unusual case when moved by the parties who have an interest in the regularity of the steps of the law-making process at the time intervention is sought, the court is able and indeed in a proper case ought to intervene.” (per Barwick CJ at p. 454) [12]
However, after emphasising that the courts “must always have the jurisdiction to examine and pronounce upon” the power of parliaments to legislate, they said:
Of course the framers of a constitution may make the validity of a law depend upon any fact, event or consideration they may choose, and if one is chosen which consists in a proceeding within Parliament the courts must take it under their cognisance in order to determine whether the supposed law is a valid law…after the law in question has been enacted”. (at p. 235)
Kirby J. in Eastgate emphasised that the courts would “virtually always” refuse to intervene in the deliberative stages of Parliament (Eastgate, at 199). Therefore, the Australian courts seem to draw the line at intervening where the procedural norms have been adhered to, and even if the approach in Conway and the PMA case is preferred to Pickin, substantive review of a decision that the Parliament Acts apply by the Speaker may not be possible once the procedural formulae have been followed. This means that once the Speaker had certified that a second bill was identical to a bill previously rejected by the Lords, then as this procedural formula had been followed, no substantive review of the merits of the Speaker’s decision would be possible.
In Canada, William Conklin questions whether the decision in Pickin is applicable in the Canadian written constitutional context. [13] Firstly, he notes that the Canadian (and US) courts have previously seen no problem in examining the validity of underlying reasons for particular legislation, such as emergency legislation. [14] Secondly, he notes that Lord Campbell in Wauchope prefaced his obiter statement above upon the condition precedent that “it should appear that a bill has passed both Houses and received Royal Assent”. Conklin interprets this as meaning that the courts do have jurisdiction to ensure that the instrument before them is in fact an act duly enacted by a properly constituted parliament, or, in other words, that the “manner and form” requirements are complied with. He cites AG New South Wales v Trethowan [1932] AC 526 PC, Harris et al v Donges et al [1952] 1 Times LR 1254, Bribery Commission v Ranasinghe [1964] 2 All ER 785, Akar v AG Sierra Leone [1970] AC 853 PC and the Indian Supreme Court case of Golak Nath v State of Punjab [1967] AIR 1643 in support of this proposition. Although it is not certain whether a court should treat an enactment as prima facie valid (in Harris, the SA Supreme Court did do this), the court is clearly limited to the face of the parliamentary record in its initial examination.
In Canada, these “manner and form” requirements are established by the British North America Act 1867, the relevant constitutional instrument. In Gallant v R [1949] 2 DLR 425, the lieutenant governor of Prince Edward Island had withheld assent to a bill, which his successor later consented to. The Supreme Court of the Island held that the legislation was invalid as the promulgation of the amendment bill had not accorded with the prescribed forms set out in the BNA Act, as no reconsideration of a refusal to assent was possible (the Bill would have had to be resubmitted to parliament). In R v Irwin [1926] Ex. CR 127, the Canadian Exchequer Court had adopted a Pickin approach and refused to consider whether the passage of a “taxation” act had been approved by a message from the Governor-General, as required by s. 54 of the BNA. Conklin argues Irwin was based upon the assumption of validity of the “record” of Parliament: in the absence of any clear record, then no difficulty arises. Conklin however argues in any case that the Canadian courts do have the right to review the procedural passage of legislation for compatibility with constitutional and statutory requirements, even where the record is clear.
Conklin bases this power of review on the fact that unlike the UK, the authority of the Canadian parliament derives from a constitutional instrument, the British North America Act. However, he also notes that the Bill of Rights (now the Charter of Fundamental Rights) requires the limitation of rights to be provided for in due course of law, as of course does the ECHR. He also argues that the English courts have taken jurisdiction over “parliamentary matters” and Parliament has acquiesced in the cases of Stockdale v Hansard (1839) 112 ER 1112 (only after examination of the legal issue of what constitutes an act of parliament are the courts excluded from questioning whether the law of parliament has in fact been violated), Dingle v Associated Newspapers [1960] 2 QB 405, Church of Scientology of California v Johnson-Smith [1972] 1 QB 522 and Cook v Alexander [1974] 1 QB 279 (the scope of parliamentary privilege).
Again, however, the Canadian precedents only point towards the possibility of judicial review to ensure the procedural forms are adhered to: no substantive review appears possible in the absence of a Charter dimension to the case. Therefore, the Commonwealth case-law at the most opens the possibility of review to ensure that the procedural norms established by the Parliament Act are complied with, and even this limited review has taken place with reference to the existence of foundational constitutional documents, and would require a departure from Pickin. This would appear to indicate that there is little possibility of any substantive review of the merits of the Speaker’s decision that the Parliament Acts are capable of applying to a particular bill.
The European Convention of Human Rights requires in Article 5 that “no one shall be deprived of his liberty save…in accordance with a procedure prescribed by law”, while Article 11 provides that “everyone has the right to freedom of peaceful assembly and to freedom of association with others”, with Article 11 (2) requiring that “no restrictions shall be placed on the exercise of these rights other than such as are prescribed by law…”. These provisions therefore require that any prohibition on fox hunting has to be lawfully prescribed by law, which has been interpreted by the European Court of Human Rights to mean that the prohibition has to have a clear basis in national law, is accessible in an understandable format, and is formulated in such a way that a person can foresee to a reasonable degree the consequences which a given action will entail. [15] In determining when a restriction on a right protected under the Convention has a clear basis in national law, the Court must satisfy itself whether national law has been followed, but will accept the interpretation of national and constitutional law adopted by the national courts. [16] This approach indicates that the European Court of Human Rights (and UK courts applying the Human Rights Act) may be prepared at most to examine an enactment restricting rights protected by the ECHR for formal compliance with procedural requirements, to be satisfied that the restriction has a clear basis in domestic law, but will not engage in substantive review of the parliamentary process itself, including the merits of any decision by the Speaker on whether the Parliament Acts apply, as this is solely a matter of national law.
Several commentators have suggested that legislation passed under the Parliament Acts may be treated and reviewed as delegated legislation, as Parliament consisting of Commons, Lords and the Crown has not passed the bill in question, but rather has by its own act delegated authority to the Commons and Crown. [17] If this were so, the courts would have greater powers of review. However, the interpretation of Commonwealth constitutions by the courts does not support this argument, [18] and it would give rise to serious problems in certain hypothetical cases, such as a bill abolishing the Lords or varying the line of succession. [19]
6. Conclusion
In answer to the four questions with which this opinion is concerned:
i The “Salisbury Convention” does not appear to restrict the power of the House of Lords to block a bill banning or regulating hunting which has been passed by the House of Commons, as no clear popular mandate in favour of prohibiting or regulating hunting has been obtained via a manifesto commitment, as is required by that Convention.
ii The Parliament Acts can be invoked in respect of a Bill passed by the House of Commons where a) the bill is a private members bill, and b) where there was no manifesto commitment to the content of the bill. The application of the Acts is not confined to government legislation, or to legislation which has received a popular mandate by manifesto. The Acts apply to permit the will of the House of Commons as a collective to prevail over the House of Lords, and are not contingent upon a clear popular mandate or government approval of a bill.
iii The Parliament Acts can apply to a new bill, enabling it to become law, provided that the speaker certifies that it is identical to a previous bill or contains such limited alterations as are permitted under the Acts, and that both the new and the previous bill have been rejected by the House of Lords over two successive sessions of Parliament, provided that one year has passed between the date of the original bill’s second reading in the Commons and the date of the new bill’s third reading in the Commons. If the new bill is not identical or contains alterations additional to those permitted under the Acts, then the Speaker cannot certify that the Acts apply to it, even if the alterations are relatively minor. Inconsequential differences in wording may not however be enough to prevent a bill from being deemed “identical”, if the alterations have no substantive implications.
iv In the current state of English law, it appears that a Speaker’s certificate (to the effect that a bill passed by the Commons is subject to the Parliament Acts) is not amenable to judicial review by the courts. Despite some persuasive Commonwealth precedent to the contrary, at best, the courts may be willing to review the passage of the bill for compatibility with the procedural requirements set out in the Parliament Acts, but may not be able to review the substantive merits of the Speaker’s decision to certify that the Parliament Acts apply to a particular bill.
Professor Jeffrey Jowell QC Faculty of Laws
University College London
12 September 2002
Notes:
[1] Other multiple-option bills have included the European Assembly Elections Bill 1977 (where a free vote rejected a party list option contained in the legislation, despite the Callaghan government’s recommendation in line with the Lab-Lib pact then in operation that the house accept the PR option), the Sunday Trading Bill 1993-94 and the Human Fertilisation and Embryology Bill 1989-1990. None were rejected by the Lords.
[2] HL Deb Vol 261 Col 664, November 1964
[3] HL Deb Vol 365 Col 1742, 11 November 1975
[4] Note that the Conservative majority in the Lords in the autumn of 1998 consistently refused to pass the European Parliament Elections Bill which provided for proportional representation, arguing that the exact form of PR measure had not been specified in Labour’s 1997 manifesto.
[5] Erskine May, Parliamentary Practice, 22nd ed. 1997
[6] S.2
[7]Note that the Commons may accompany a bill sent to the Lords for a second session with further suggested amendments without inserting them into the bill itself. See Wade and Bradley, Constitutional and Administrative Law (10th ed.), p. 192.
[8] [1974] AC 765
[9] (1842) 8 Cl & Fin 710
[10] (1871) LR 6 CP 576
[11] [1974] AC 765, 788-789
[12] Gibbs J. in Conway did emphasise the weight of the discretionary factors against intervention at the pre-enactment stage, but in the PMA case gave the example of an improper dissolution as an instance where pre-enactment intervention may be necessary.
[13] See n. 9 above, “Pickin and its Applicability to Canada”, [1975] U. of Toronto LJ 193
[14] As have the Irish courts: see In re Article 26 and the Emergency Powers Bill 1976 [1977] IR 159.
[15] See Sunday Times v United Kingdom, Judgment of 26 April 1979, Series A, No. 30; (1979-1980) 2 EHRR 245. See also Jacobs and White, Euopean Convention on Human Rights (3th ed., OUP) p. 201 – 202.
[16] Steel and others v United Kingdom (App. 24838/94), Judgment of 23 September 1998; (1998) 28 EHRR 603, para. 54.
[17] This argument was made in the context of questions as to the validity of the Parliament Act 1949, which amended the original Parliament Act via the mechanism provided for in the 1911 Act: this was argued to be invalid, on the basis of the administrative law principle that a delegate cannot use his delegated authority to increase the scope of that authority. See Hood Philips and Jackson, Constitutional and Administrative Law, pp. 90-91
[18] R v Burah (1878) 3 AppCas 889, Hodge v R (1883) 9 App Cas 117
[19] See Wade and Bradley, Constitutional and Administrative Law, 11 ed., 207.