R (on the application of Jackson and others) v Attorney General  EWCA CIV 126 (Court of Appeal)
Legislation passed under the 1911 Act is not primary, but delegated or subordinate legislation.
30. This ground of appeal goes to the heart of the distinction between the case advanced by the Appellants and that advanced by the Attorney General, supported by the League. The Attorney General contends that, as a matter of construction of the Acts, any Bill enacted in accordance with the provisions of the 1911 Act, or the 1911 Act as amended by the 1949 Act, has the same force and effect as any Bill enacted without reliance on those Acts. His contention is that the 1911 Act created a second procedure for enacting legislation and that that procedure was then amended by the 1949 Act. As long as the relevant procedure set out in the Acts is followed, then, on the Attorney General's argument, this results in legislation that is in every respect identical to legislation passed in the traditional way; that is with the consent of both the Commons and the Lords. The resulting legislation is not inferior legislation and so, critically, it could be used to amend the 1911 Act.
31. Sir Sydney vehemently disagrees. His contention is that legislation that is made following the procedure set out in the 1911 Act is legislation of a different nature. It is legislation which depends for its validity upon the 1911 Act. It is to be distinguished from legislation passed in the traditional way which is not dependent for its existence upon earlier legislation. He therefore describes the legislation made under the 1911 Act as delegated or subordinate legislation when compared with "primary" legislation made with the consent of both Houses of Parliament in the traditional way.
32. That there is the distinction, which Sir Sydney advances, is, in our view, undoubtedly correct. It is reflected in the fact that the Attorney General is right to accept the role of the Court which the Administrative Court exercised and which we are seeking to exercise on this appeal. It is because the 1911 Act has to be complied with (whether in its original or, if the amendment is valid, in its amended form) that the Courts' involvement is appropriate.
33. Although we are here concerned with Parliamentary powers, the role of the Court is the same as it is with any other power exercised under statutory authority: the statutory authority here being the 1911 Act. The Court can determine whether what is said to have happened under that Act in fact complied with that Act.
34. To an extent, the issue is one of definition as to what is meant by primary or subordinate legislation. Sir Sydney refers to Craies on legislation. (8th ed., 2004 at paragraph 1.21). Here it is stated:
"All legislation can be classified as primary or subordinate. Quite simply, legislation is subordinate if it owes its existence or authority to other legislation: if it does not, it is primary."
35. Drawing this distinction between primary and secondary legislation, it is perfectly possible properly to regard the 1949 Act, as being subordinate legislation if, contrary to the Appellants' submission, it is legislation at all.
36. The point is made even more clearly by Sir William Wade in Constitutional Fundamentals (pp 27 - 28) when he insisted, contrary to the views of Professor de Smith, that legislation passed under the 1911 Act should be regarded as delegated. Sir William said:
"Professor de Smith maintained that by these Acts Parliament had redefined itself for particular purposes: the sovereign legislature of Queen, Lords and Commons had provided an optional alternative consisting of Queen and Commons only; and this new body could legislate in accordance with the Act for all purposes other than prolongation of the life of Parliament. Such legislation, he said, was primary and not delegated; yet he accepted that if it purported to prolong the life of Parliament it would be a nullity. With this last point I fully agree, but I cannot square it with the notion that legislation enacted under the Parliament Acts is primary. The acid test of primary legislation, surely, is that it is accepted by the courts at its own face value, without needing support from any superior authority. But an Act passed by Queen and Commons only has no face value of its own. As Coke put it in The Prince's Case, "If an Act be penned, that the King with the assent of the Lords, or with the assent of the Commons, it is no Act of Parliament for three ought to assent to it scil. The King, the Lords and the Commons." An Act of Queen and Commons alone is accepted by the courts only because it is authorised by the Parliament Act - and indeed it is required to recite that it is passed "in accordance with the Parliament Acts 1911 and 1949 and by authority of the same". This is the hall-mark of subordinate legislation and I do not understand how it is possible to disagree with Professor Hood Phillips when he says that it is the correct classification."
Sir Sydney submits that there can be no answer to this reasoning.
37. However, on this subject, we were referred to a letter written by Lord Donaldson of Lymington to the three leading counsel involved in this case. Out of fairness to Sir William, he drew attention to a letter that Sir William had written to him. Unfortunately, Lord Donaldson has not retained the letter. However, his understanding of what Sir William wrote was that he was saying that, whilst adhering to his view that the 1949 Act was a species of subordinate legislation, he did not agree that from this it followed that the 1949 Act was ultra vires, always provided that it did not seek to extend the life of the Parliament.
38. The Attorney General has placed before us the views of other distinguished academics beside Sir William and he submits, correctly, that if this matter is to be resolved by counting heads, then there is more support for his view than that contended for by Sir Sydney. However, this is not a head counting exercise.
39. What is clear is that whatever description is appropriate to apply to the 1911 and 1949 Acts, it is the 1911 Act that is the source of authority for the creation of the 1949 Act. The argument of the Attorney General, that once legislation has been created by the 1911 Act it is no different from legislation created in the traditional way with the consent of both Houses, is one which we question. If it is correct, then that is the end of the Appellants' case since it means that as long as the basic requirements of the 1911 Act as amended were procedurally complied with, the contents of an Act made by this procedure could not be questioned. Indeed, in these circumstances the Certificate of the Speaker would probably be conclusive because it is his responsibility to ensure compliance with the procedure set out in the 1911 Act.
40. The main reason for our reservations as to this outcome is that it involves it being accepted that the 1911 Act could be used to extend the life of Parliament contrary to the express language of s.2(1) of the 1911 Act for such period as the Commons determines. All that would be required would be for Parliament, in the shape of the Commons, to pass legislation deleting the words "Bill containing any provision to extend the maximum duration of Parliament beyond five years" and then to pass further legislation extending the life of Parliament. This would be quite contrary to the express limitation on extending the duration of Parliament contained in s.2(1) and we are not prepared to accept that this is the position.
41. We appreciate that it is most unlikely that the Commons would ever contemplate seeking to use the 1911 Act, either in its amended or unamended form, to enact legislation to which the House of Lords had not consented, in order to extend the duration of Parliament or, for that matter, to abolish the House of Lords. However, if, contrary to our expectations, it did contemplate such action we would regard this as being contrary to the intention of Parliament when enacting the 1911 Act. So, here we disagree with the views to the contrary expressed by the Administrative Court.
42. The purpose of the 1911 Act was to establish a new constitutional settlement that limited the period during which the Lords could delay the enactment of legislation first introduced to the Commons but which preserved the role of the Lords in the legislative processes. In our view it would be in conflict with the 1911 Act for it to be used as an instrument for abolishing the House of Lords. This would be so whether or not there was initially an attempt to use the 1911 Act process to amend the 1911 Act to provide an express power to abolish the Lords. We would view such an endeavour in the same way as an attempt to delete the prohibition on extending the life of Parliament. The preamble of the 1911 Act is inconsistent with the Attorney General's contention. The preamble indicates that the 1911 Act was to be a transitional provision pending further reform. It provides no support for an intention that the 1911 Act should be used, directly or indirectly, to enable more fundamental constitutional changes to be achieved than had been achieved already.
43. Thus, it does not necessarily follow that because there is compliance with the requirements in the 1911 Act, the result is a valid Act of Parliament. Following the reasoning in the previous paragraph, if, without amending the 1911 Act further, the Commons attempted to extend the life of Parliament in excess of five years without the consent of the Lords the attempt would be ineffective and, if necessary, the Court's jurisdiction that we are now exercising could be invoked. The Attorney General in fact recognises this because, while he contends this could be done, he accepts it would be necessary for the 1911 Act to be amended first to remove the express exception to extending the life of Parliament.
44. This concession recognises that there are differences between the traditional powers of Parliament when legislating, and its powers when legislating under the 1911 Act. With the consent of the Lords and Commons, Parliament could extend the life of Parliament for say two years without having to amend the 1911 Act. Indeed, it did so during the Second World War. (We deliberately confine the extension for a limited period because there could be different arguments if Parliament attempted to extend its life indefinitely).
45. Once it is accepted that the use to which the 1911 Act could be put is limited, the question arises as to the extent of the limitation. It is when we reach this stage that it becomes important to recognise that what could be suggested here is the power to make fundamental constitutional changes. If Parliament was intending to create such a power, surely it is right to expect that the power would be unambiguously stated in the legislation. This is not the case with s. 2 of the 1911 Act. Whether or not legislation enacted in reliance on the 1911 Act is properly described as delegated, the 1949 Act can nevertheless be said to be seeking to do that which was disapproved of by Van den Heaver JA in the South African Court of Appeal in the Minister of the Interior v Harris (1952) 4 SA 769 at 790, that is, (adapting his words), to perform an act of levitation by lifting itself above its own powers by its own boot straps. The result of the use of the 1911 Act was in form to produce an Act of Parliament as is contended by the Attorney General and Mr Pannick but, as we have already pointed out, that Act will not be valid if it is outside the scope of the 1911 Act.
46. Thus we do not, however, regard this as being an all or nothing situation. We do not believe that it will necessarily follow if we conclude that the 1949 Act is lawful legislation, that the 1911 Act can be used or amended, so as to produce results that will constitute a different constitutional settlement. On the Third Reading of the 1949 Bill, the Secretary of State for Home Department (Mr Ede) stated:
"This Bill is a short and workmanlike measure to bring up to date an Act which, at the time of its passing, was fiercely resisted by the party now represented by right hon. and hon. Gentlemen opposite. They then proclaimed their definite intention, as soon as they got into office, to repeal it. Now they accept it as one of the pillars of the Constitution. Therefore, one does not have to argue anything other than the shortening of the time during which another place can delay the non-financial proposals which this House sends forward to them. We feel that the length of time allowed in this Bill of one year and two Sessions is adequate to ensure that proposals which may be the subject of controversy between the two Houses shall receive full and ample consideration before being carried into effect, even if another place should not be reconciled to them. (Parliamentary Debates 1947-48 Vol 445 at p 1018)."
This statement makes clear that the ambitions for the 1949 Bill were of a modest nature. It involved no more than a modification of the 1911 Act and we recognise that such a modification of the 1911 Act is a change of a different dimension from the dramatic changes that we have just been discussing.
47. Interestingly, apparently, according to Lord Donaldson's letter, that this was not a black and white situation was also the view of Sir William Wade. Unfortunately, we do not know Sir William's reasons for considering it possible for the 1949 Act to be valid while at the same time believing that it would not be possible to amend the 1911 Act as a precursor to extending the maximum duration of Parliament.
48. The fact that we do not know Sir William's reasons does not mean that we cannot produce a justification of our own. The justification would be the difference in scale that the changes to our constitutional arrangements involved in reducing a delaying power from two years to one, when compared with either enabling the life of Parliament to be extended beyond five years or abolishing the House of Lords. The latter changes are so fundamental, that they could only be enacted or expressly made possible by what is traditionally the Sovereign Parliament. That is to say by the triumvirate of the Monarch, the Lords and the Commons. As we will explain later in this area it is important to pay attention to the views expressed in Parliament itself. From the extracts from Hansard placed before us we detect no consensus for a view that the 1911 Act was intended to give the Commons directly or indirectly power to change fundamentally this country's constitutional arrangements.....