Tuesday Law Report: Hunting Act was lawfully passed by Parliament

1 February 2005 Regina (on the application of Jackson and others) v Attorney General Administrative Court (Lord Justice Maurice Kay and Mr Justice Collins) 28 January 2005

THE PARLIAMENT Act 1949 was not invalid and, since such invalidity was a prerequisite to a challenge to the legality of the Hunting Act 2004, that challenge failed.

The Administrative Court dismissed the claimants' application for judicial review, by which they challenged the validity of the Hunting Act 2004.

Three members of the Countryside Alliance brought judicial review proceedings in their personal capacities, in which they argued that the Hunting Act 2004 had not been lawfully passed because its validity depended upon the Parliament Act 1949, and that Act had not been lawfully passed by Parliament.

The Parliament Act 1911 enabled a Public Bill, other than a Money Bill or a Bill containing a provision to extend the maximum duration of Parliament beyond five years, to be passed as an Act of Parliament without the consent of the House of Lords, provided that it was passed by the House of Commons in three successive sessions, that it was rejected by the House of Lords in each of those sessions, and that two years had elapsed between the second reading of the Bill in the House of Commons in the first session and the date of its passage by the House of Commons in the third session. The Parliament Act 1949 was enacted to reduce the time requirements of the 1911 Act so as to refer to two sessions rather than three and the lapse of one year rather than two. The 2004 Act was passed using the procedures in the 1949 Act.

It was the claimants' argument, inter alia, that as a matter of construction the 1911 Act could not be used to achieve amendments to itself and that, accordingly, it was unlawful for the 1949 Act to reach the statute book without the approval of the House of Lords.

The Preamble to the 1911 Act provided:

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 . . . 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.

Sir Sydney Kentridge QC, Richard Lissack QC, Martin Chamberlain and Marcus Haywood (Allen & Overy LLP) for the claimants; Lord Goldsmith QC, AG, Philip Sales and Clive Lewis (Treasury Solicitor) for the Attorney General; David Pannick QC and Gordon Nardell (Collyer-Bristow) for the intervener, the League against Cruel Sports.

Lord Justice Maurice Kay said that the claimants' submissions foundered on the clear language of the 1911 Act. Section 2(1) of the Act expressly referred to "any Public Bill" (other than the specifically excluded Money Bill and a Bill to extend the maximum duration of Parliament). That had twofold significance.

There was no scope for interpreting section 2 as containing an exclusion in relation to any Bill to amend the provisions of the 1911 Act. Moreover, section 2(2) placed an obligation on the Speaker to sign a certificate that "the provisions of this section have been duly complied with". It would be an unduly onerous obligation if there were considered to be such provisions which were not manifest from the words of section 2(1).

Furthermore, the Preamble could not be read as a self-denying ordinance that put out of reach resort to section 2 in the event of the House of Lords itself subsequently rejecting such a reform.