Jackson and others (Appellants) v. Her Majesty's Attorney General (Respondent) (HTML version), (2005)

 
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HOUSE

OF LORDS

SESSION 2005-06

[2005] UKHL 56

on appeal from: [2005] EWCA Civ 126

OPINIONS

OF

THE LORDS OF APPEAL

for

judgment IN THE CAUSE

Jackson

and others (Appellants) v. Her

Majesty's Attorney General (Respondent)

Appellate

Committee

Lord Bingham

of Cornhill

Lord

Nicholls of Birkenhead

Lord Steyn

Lord Hope

of Craighead

Lord

Rodger of Earlsferry

Lord

Walker of Gestingthorpe

Baroness

Hale of Richmond

Lord

Carswell

Lord Brown

of Eaton-under-Heywood

Counsel

Appellants:

Sir Sydney Kentridge QC

Richard Lissack QC

Martin Chamberlain

Marcus Haywood

(Instructed by Allen & Overy LLP)

Respondent:

Attorney General (Lord Goldsmith QC)

Philip Sales

Clive Lewis

(Instructed by Treasury Solicitor)

Interveners:

League against Cruel Sports

David Pannick QC

Gordon Nardell

(Written intervention)

(Instructed by Collyer-Bristow)

Hearing dates:

13 and

14 July 2005

on

Thursday

13 OCTOBER 2005

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Jackson and others (Appellants) v. Her Majesty's Attorney General (Respondent)

[2005] UKHL 56

LORD BINGHAM OF CORNHILL

My Lords,

  1. The appellants all, in differing ways, have an interest in fox-hunting. They wish that activity to continue. They challenge the legal validity of the Hunting Act 2004 which, on its face, makes it an offence to hunt a wild mammal with a dog save in limited circumstances. The appellants acknowledge that the legislative procedure adopted to enact the Hunting Act was in accordance with the procedure laid down in the Parliament Act 1949. But they contend that the 1949 Act was itself invalid: it did not, as they correctly say, receive the consent of the House of Lords; and the Parliament Act 1911 did not, they submit, permit an Act such as the 1949 Act to be enacted without the consent of the House of Lords. Thus, although the Hunting Act gives rise to the present issue between the appellants and the Attorney General, the real question turns on the validity of the 1949 Act and that in turn depends on the true effect of the 1911 Act. The merits and demerits of the Hunting Act, on which opinion is sharply divided, have no bearing on the legal issue which the House, sitting judicially, must resolve.

  2. In these proceedings the appellants sought a declaration that

    1. The Parliament Act 1949 is not an Act of Parliament and is consequently of no legal effect.

    2. Accordingly, the Hunting Act 2004 is not an Act of Parliament and is of no legal effect.

    The Queen's Bench Divisional Court (Maurice Kay LJ and Collins J) declined to make such a declaration: [2005] EWHC 94 (Admin). So, on somewhat different grounds, did Lord Woolf CJ, Lord Phillips of Worth Matravers MR and May LJ sitting in the Court of Appeal: [2005] EWCA Civ 126, [2005] QB 579. On the appellants' behalf Sir Sydney Kentridge QC repeats detailed arguments advanced in the courts below. Lord Goldsmith QC, the Attorney General, resists those arguments. The League Against Cruel Sports make written submissions in support of the Attorney General.

    The Hunting Act

  3. The Hunting Act received the royal assent on 18 November 2004. Its words of enactment are:

    Be it enacted by The Queen's most Excellent Majesty, by and with the advice and consent of the Commons in this present Parliament assembled, in accordance with the provisions of the Parliament Acts 1911 and 1949, and by the authority of the same, as follows …

    The House of Lords did not consent. As presented for the royal assent, the Hunting Bill bore two certifications by the Speaker of the House of Commons:

    I hereby certify that this Bill as compared with the Hunting Bill 2003 contains only such alteration as is necessary owing to the time which has elapsed since the date of that Bill.

    "I certify, in reference to this Bill, that the provisions of section two of the Parliament Act 1911, as amended by section one of the Parliament Act 1949, have been duly complied with."

    Neither of these certifications is questioned or challenged in any way.

    The 1949 Act

  4. The 1949 Act was very short. It was described in its long title as "An Act to amend the Parliament Act, 1911." Its words of enactment were as for the Hunting Act, save that the only statutory reference was to the 1911 Act. Its substantial effect was to reduce the number of successive sessions referred to in section 2(1) of the 1911 Act from three to two, and to reduce the lapse of time referred to in the proviso to section 2(1) of the 1911 Act from two years to one.

    The 1911 Act

  5. The 1911 Act was described in its long title as

    An Act to make provision with respect to the powers of the House of Lords in relation to those of the House of Commons, and to limit the duration of Parliament.

    The words of enactment were preceded by a preamble with three recitals, which read:

    Whereas it is expedient that provision should be made for regulating the relations between the two Houses of Parliament:

    And whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation:

    And whereas provision will require hereafter to be made by Parliament in a measure effecting such substitution for limiting and defining the powers of the new Second Chamber, but it is expedient to make such provision as in this Act appears for restricting the existing powers of the House of Lords:

    The second of these recitals has an historical explanation, given below. The standard words of enactment were used, since both Houses had consented to the measure:

    Be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows …

  6. Although this appeal turns on section 2(1) of the 1911 Act, which is considered in more detail below, that section must be understood in the context of the whole Act which, save for the short title in section 8, I think it necessary to recite:

    "1.—

    (1) If a Money Bill, having been passed by the House of Commons, and sent up to the House of Lords at least one month before the end of the session, is not passed by the House of Lords without amendment within one month after it is so sent up to that House, the Bill shall, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified, notwithstanding that the House of Lords have not consented to the Bill.

    (2) A Money Bill means a Public Bill which in the opinion of the Speaker of the House of Commons contains only provisions dealing with all or any of the following subjects, namely, the imposition, repeal, remission, alteration, or regulation of taxation; the imposition for the payment of debt or other financial purposes of charges on the Consolidated Fund, or on money provided by Parliament, or the variation or repeal of any such charges; supply; the appropriation, receipt, custody, issue or audit of accounts of public money; the raising or guarantee of any loan or the repayment thereof; or subordinate matters incidental to those subjects or any of them. In this subsection the expressions 'taxation,' 'public money,' and 'loan' respectively do not include any taxation, money, or loan raised by local authorities or bodies for local purposes.

    (3) There shall be endorsed on every Money Bill when it is sent up to the House of Lords and when it is presented to His Majesty for assent the certificate of the Speaker of the House of Commons signed by him that it is a Money Bill. Before giving his certificate, the Speaker shall consult, if practicable, two members to be appointed from the Chairmen's Panel at the beginning of each Session by the Committee of Selection.

  7. —

    (1) If any Public Bill (other than a Money Bill or a Bill containing any provision to extend the maximum duration of Parliament beyond five years) is passed by the House of Commons in three successive sessions (whether of the same Parliament or not), and, having been sent up to the House of Lords at least one month before the end of the session, is rejected by the House of Lords in each of those sessions, that Bill shall, on its rejection for the third time by the House of Lords, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified thereto, notwithstanding that the House of Lords have not consented to the Bill: Provided that this provision shall not take effect unless two years have elapsed between the date of the second reading in the first of those sessions of the Bill in the House of Commons and the date on which it passes the House of Commons in the third of those sessions.

    (2) When a Bill is presented to His Majesty for assent in pursuance of the provisions of this section, there shall be endorsed on the Bill the certificate of the Speaker of the House of Commons signed by him that the provisions of this section have been duly complied with.

    (3) A Bill shall be deemed to be rejected by the House of Lords if it is not passed by the House of Lords either without amendment or with such amendments only as may be agreed to by both Houses.

    (4) A Bill shall be deemed to be the same Bill as a former Bill sent up to the House of Lords in the preceding session if, when it is sent up to the House of Lords, it is identical with the former Bill or contains only such alterations as are certified by the Speaker of the House of Commons to be necessary owing to the time which has elapsed since the date of the former Bill, or to represent any amendments which have been made by the House of Lords in the former Bill in the preceding session, and any amendments which are certified by the Speaker to have been made by the House of Lords in the third session and agreed to by the House of...

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