Case Facts
The appellants, all of whom had an interest in fox-hunting, challenged the validity of the Hunting Act 2004 on the ground that it had not been lawfully enacted. Their argument was that the Parliament Act 1949, under which the 2004 Act was passed, was itself invalid and of no legal effect. The appellants sought two declarations: first, that the Parliament Act 1949 is not an Act of Parliament; and second, that the Hunting Act 2004 is accordingly not an Act of Parliament and is of no legal effect.
The Hunting Act 2004 received Royal Assent on 18 November 2004. Its words of enactment expressly stated that it was enacted "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." The House of Lords did not consent to the Act. The Speaker of the House of Commons endorsed two certifications on the Hunting Bill: one certifying the Bill's identity with a prior Bill, and a second certifying compliance with s 2 Parliament Act 1911 as amended by the Parliament Act 1949. Neither certification was questioned or challenged in the proceedings.
The central constitutional background concerned the relationship between the two Parliament Acts. s 2(1) Parliament Act 1911 provided that if any Public Bill (other than a Money Bill or a Bill extending the maximum duration of Parliament beyond five years) was passed by the House of Commons in three successive sessions and rejected by the House of Lords in each, it should on its third rejection be presented for Royal Assent and become an Act of Parliament notwithstanding the absence of the Lords' consent, provided that two years had elapsed between the second reading in the first session and the passing in the third session. The preamble to the 1911 Act further stated an intention eventually to substitute for the House of Lords, as then constituted, a Second Chamber on a popular rather than hereditary basis, although it acknowledged that such substitution could not be immediately brought into operation.
The Parliament Act 1949 was itself enacted using the procedure established by s 2(1) Parliament Act 1911. Its substantive effect was to amend s 2(1) of the 1911 Act by reducing the number of successive sessions required from three to two, and by reducing the minimum time lapse from two years to one year. The appellants contended that this use of the s 2(1) procedure to amend the 1911 Act itself was beyond the scope of the power conferred by that provision, and that the 1949 Act was therefore a nullity.
Held
The House of Lords unanimously dismissed the appeal. The Parliament Act 1949 was held to be a valid Act of Parliament, having been lawfully enacted pursuant to the procedure established by s 2(1) Parliament Act 1911. It followed that the Hunting Act 2004, passed in accordance with the procedure as amended by the 1949 Act, was also a valid Act of Parliament. The declarations sought by the appellants were refused.
Ratio Decidendi
The ratio of the decision turned on the proper construction of s 2(1) Parliament Act 1911. That provision conferred a legislative power on the House of Commons and the Crown alone, operating as a form of delegated legislative authority. The scope of that delegated power was a matter of statutory construction, to be determined by reference to the terms of the 1911 Act itself.
The House of Lords held that the 1911 Act did not, expressly or by necessary implication, exclude amendment of the 1911 Act itself from the procedure in s 2(1). The appellants' argument — that the s 2(1) power could not be used to expand or extend the scope of that very power — was rejected. The Lords reasoned that the Parliament Act 1949 fell squarely within the scope of the delegated power as properly construed. The 1949 Act was not an impermissible enlargement of the power conferred by the 1911 Act but rather an exercise of that power, the limits of which were defined by the 1911 Act's terms. The procedural amendment made by the 1949 Act — reducing the number of sessions from three to two and the minimum time lapse from two years to one — was within the delegated authority.
Importantly, the House of Lords did not decline to examine the validity of the 1949 Act on the ground that the enrolled bill rule precluded judicial scrutiny. On the contrary, the Lords proceeded to adjudicate fully on the constitutional validity of the 1949 Act, treating the question as one of statutory construction and the proper scope of a delegated legislative power. This was a significant exercise of judicial constitutional review. The court noted that Pickin v British Railways Board [1974], which concerned the court's inability to look behind a statute passed in the ordinary way by both Houses, was not determinative in circumstances where the very question was whether the procedure used to enact the 1949 Act fell within the authority conferred by the 1911 Act.
Obiter Dicta
Several members of the House of Lords delivered substantial obiter remarks of considerable academic and constitutional significance, going beyond the ratio necessary to decide the appeal.
Most notably, Lord Steyn, Lord Hope, and Baroness Hale each raised the possibility that in extreme circumstances the courts might not feel bound to give effect to legislation passed by Parliament. Lord Steyn questioned the orthodox Diceyan doctrine of parliamentary sovereignty itself, observing that the relationship between Parliament and the courts is not entirely one-sided. He suggested that if Parliament were to legislate in a manner that sought to abolish judicial review or otherwise to undermine the rule of law in a fundamental way, the courts might regard themselves as not obliged to apply such legislation.
Lord Hope expressed the view that parliamentary sovereignty is not absolute and that the rule of law enforced by the courts is the ultimate controlling factor in the constitution. He indicated that the courts would not be powerless in the face of a parliamentary attempt to subvert constitutional principles of the most basic kind.
Baroness Hale similarly remarked that there are limits to what Parliament can do; she observed that the courts have not yet had to grapple directly with whether Parliament can diminish or remove the supervisory jurisdiction of the courts, but hinted that such an attempt might not go unchallenged judicially.
These obiter observations are of the highest constitutional importance, representing a significant departure from the traditionally absolute statement of parliamentary sovereignty as propounded by Dicey. They suggest that at least some members of the senior judiciary view the relationship between Parliament and the courts as one grounded in mutual constitutional respect, with the courts potentially retaining a residual jurisdiction to protect the irreducible minimum content of the rule of law. These remarks continue to generate substantial academic debate and are frequently cited in discussions of the limits of parliamentary sovereignty and the constitutional role of the judiciary in the United Kingdom's uncodified constitutional order.