Hunting takes on biggest hurdle

telegraph.co.uk ^ | 13/01/2005 | Joshua Rozenberg

[neverdem]

Hunting takes on biggest hurdle
By Joshua Rozenberg, Legal Editor
(Filed: 13/01/2005)

The Government "confidently" expects the courts to uphold the validity of the Hunting Act 2004, Alun Michael, the minister for rural affairs, told Parliament on Tuesday.

Yet the Countryside Alliance is equally confident that its forthcoming challenge will succeed.

At a hearing on Jan 25, Sir Sydney Kentridge, QC, for the Alliance, will tell the High Court that "the Hunting Act 2004 is not an Act of Parliament and is of no legal effect". How does he reach this apparently startling conclusion?

To answer this, we must go back to the Parliament Act 1911. This allowed a Bill passed by the House of Commons in three successive sessions to become an Act, despite being rejected by the House of Lords.

As a safeguard, the 1911 Act also insisted that the third occasion on which the Commons passed the Bill had to be at least two years after it had first been debated by MPs.

That procedure was used by the Commons after the Second World War to pass legislation amending the 1911 Act.

The Parliament Act 1949 was designed to reduce the number of occasions on which a Bill had to be passed by the Commons from three to two, and to cut the necessary wait from two years to one.

It is accepted by the Countryside Alliance that the Commons complied with the shorter time limits when it passed the Hunting Act 2004, without Lords approval, last November. What the Alliance does not accept is that the Parliament Act 1949 validly amended the 1911 Act in the first place.

This is because it claims that the 1949 Act is "delegated legislation" - secondary law made under powers granted by Parliament. Ministers frequently issue statutory instruments, for example, under similar delegated powers.

But Acts of Parliaments are primary laws. How then can the 1949 Act be delegated legislation?

Look at the Parliament Act 1911, says the Alliance. It was passed in the normal constitutional way with the approval of the sovereign, Lords and Commons. But, in effect, it delegated the power to make law in certain circumstances to the sovereign and Commons alone.

So far, no problem: Parliament delegates powers to people all the time. But it is a principle of delegated legislation that - in the absence of express words to the contrary - it cannot be used to amend the enabling Act under which it was passed.

That seems logical enough. Imagine Parliament passes an Act giving the Lord Chancellor power to spend up to £30 million on a new supreme court. The Lord Chancellor cannot amend the figure in the Act to £60 million unless there is an express provision allowing him to do so - a so-called "Henry VIII clause".

But that, in effect, is what the Alliance says that MPs did in 1949, when they changed the time limits in the 1911 Act.

"The claimants submit that the powers granted by Parliament under the 1911 Act to the Queen and Commons did not empower the Queen and Commons to enlarge the scope of those powers," Sir Sydney says in his written submissions.

"The 1911 Act did not empower the Queen and Commons acting without the House of Lords to amend the terms of the 1911 Act itself."

If you accept that - and it's a big "if" - then the rest is easy. The 1949 Act did not succeed in amending the 1911 Act. Under the 1911 Act, as unamended, you have to wait for two years and three sessions before bypassing the Lords. The Hunting Act did not meet those requirements: so the Hunting Act has no legal effect.

Of course, as Sir Sydney accepts in a submission written with Richard Lissack, QC, and two junior counsel, no court will question whether an Act was passed in accordance with Parliament's own standing orders and rules. But that principle, he claims, applies only to an Act passed by both Houses of Parliament - which was not the case here.

Lord Goldsmith, the Attorney General, will tell the High Court that this is wrong. In written submissions prepared by its senior independent counsel, Philip Sales, the Government says that the 1911 Act could indeed be used to amend its own provisions.

In addition, he says, "it is incorrect to describe legislation enacted in accordance with the procedure prescribed in the 1911 Act as delegated legislation and, on that footing, to seek to imply limitations relating to the type of `delegated' legislation that may be made under the 1911 Act".

Mr Sales adds: "Section 2(1) of the 1911 Act provides the means by which an Act of Parliament is to be enacted, not a means of providing that a different body (the Queen and the House of Commons) may exercise delegated powers to make delegated legislation."

Look at the wording of the 1911 Act, the Government argues, and you will see that legislation passed under it becomes an Act of Parliament "in the full sense" - not delegated legislation. So there is no basis for seeking to imply limitations on the type of legislation that may be passed under the 1911 Act.

Sir Sydney's submissions are elegantly written, as befits one of the best-respected advocates at the Bar. The Government's response is concise to the point of curtness, but none the less convincing for that.

Although the Alliance's case has the support of leading constitutional lawyers, it takes little account of political realities. What, for example, are we to do about the previous three Acts passed under the 1949 legislation - including the War Crimes Act 1991, under which a man was sent to prison? And why shouldn't the courts hold that the 1911 Act contains an implied power to delegate?

Although preferring the Government's blunt assertions to the Alliance's beguiling constitutional theories, I am unimpressed with Government tactics designed to postpone implementation of the Hunting Act from February 18 until after a May election.

If the Alliance loses in the High Court, it will ask the Court of Appeal for an injunction to delay the implementation of the Act. The Government has made clear that it would "neither oppose nor support such an application", according to Alun Michael. How convenient it would be if the delay were granted: no prospect of mass protest and civil disobedience until Tony Blair is safely back in Number 10.

But if the Hunting Act is good law, as the Government asserts, there are no grounds for the courts to issue an injunction. Indeed, it is hard to see what power a court would have to suspend valid primary legislation.

So what can the Government do? Easy: if it does not want to see its own legislation enforced for a while, it should ask Parliament to pass a postponement Act - and pray that it gets through the Lords.

7 January 2005: Campaign to ban hunting will take up the challenge in High Court

18 November 2004: Immediate legal challenge will be followed by mass disobedience, says rural alliance

[kingu]

The reasoning of the challenge strikes me as being proper; you can make any law except one that changes the provisions enabling the ability to make law. My guess is that this will be one of those judicial coin flips with a ruling that will be intriguing to read. Thanks for posting this.