The Jaws of the Trap Are Closing:
Hunting, the Courts and the Constitution
by Sean Gabb
At the end of last week, the new Prevention of Terrorism Act came into force. Pushed through with the most indecent haste, and justified throughout its passage by what has become the usual pack of lies about vague but tremendous dangers, this gives extraordinary powers to the State. It allows indefinite house arrest for those suspected of certain intentions, together with electronic monitoring and restrictions on Internet and other correspondence. All this is allowed without charge or trial, and on the basis of unsworn evidence given in secret.
It has, then, been a bad week for liberty in this country. Rather than turn, however, to an examination of the new Act – and the newspapers for once have already done this very well – I prefer to discuss what grounds we might have for optimism. And there are grounds for optimism. If we look away from the raucous pantomime that is the House of Commons, and look instead to the more sedate proceedings of the civil courts, not all is yet lost. Undoubtedly, the Prevention of Terrorism Act 2005 is a constitutional disgrace. The legal historians, though, may one day agree that the most important constitutional change of this year was effected by the judgment given on the 16th February by the Court of Appeal in the case of R v Attorney General ex parte Jackson & Ors.
The case was brought to test the validity of the Hunting Act 2004, which makes hunting with dogs a criminal offence. This Act had been passed, after much resistance in the Lords, by using the procedure of the Parliament Act 1911, as amended in 1949, which allows Bills rejected by the Lords in two consecutive sessions to pass straight from the House of Commons for the Royal Assent. The Appellants went into court to argue that the 1949 Act was an ultra uires use of the 1911 Act, and that all legislation passed using the 1949 Act was therefore void. If they were hoping that the Judges would strike down the ban as somehow unconstitutional, they must be disappointed. It was ruled good law, no matter what it might be in moral and political terms. The legal challenge being lost, the ban came into force on the 18th February.
But while the immediate cause of action was lost, this judgment, taken as a whole, was a victory for the forces of conservatism. It can be read in full on the Internet – available at: http://www.courtservice.gov.uk/judgmentsfiles/j3073/the_queen-v-hm_attorney_general.htm —and, though long, is both highly readable and highly unusual. It dispenses with the standard form, where each Judge in turn gives his opinion, agreeing with or dissenting from the others, and the majority opinion is taken as the main judgement. This judgment is one piece of extended prose, and gives the agreed opinion of the Lord Chief Justice, the Master of the Roles and Lord Justice May. If it often reads more like a manifesto than a judgment, that is because it is a manifesto. It is a further instalment of the legal counterrevolution that I described three years ago after having read the “Metric Martyrs” judgment. It is another of those rulings our Judges have begun to make, in which the Government is given victory in the immediate cause of action, while having the whole constitutional framework remodelled against it.
For those who cannot be bothered to read what I said three years ago on this revolution – the article can be found at: http://www.seangabb.co.uk/flcomm/flc063.htm —I will briefly repeat myself on the causes and progress of the counterrevolution.
According to the orthodox theory of the British Constitution, Parliament is sovereign – Parliament being defined as the combination of Crown, Lords and Commons. Whatever these three agree on enacting has the force of law. Parliament, if it pleases, can make gambling in Monte Carlo a criminal offence. It can repeal the Government of India Act and appoint a new Viceroy. It can order every left handed man in the country to have his head cut off. No matter how immoral or unwise or simply impossible they may be, whatever Acts are made in Parliament are to be regarded as the supreme, unquestionable law of this country. We have no written constitution, nor any formal division of powers, nor any supreme court charged with upholding some entrenched bill of rights. Instead, the latest expression of parliamentary will is law. If even accidentally, some section of a Road Traffic Amendment Act should abolish the Magna Carta, the courts will be obliged to enforce the later Act. Parliament is sovereign in a manner that no other legislature now existing approaches. It is perhaps the only body in the world to which the maxim of Ulpian can be applied: quod principi placuit legis uigorem habet.
During its first two centuries of orthodoxy, this theory of the Constitution was attended by none of the inconveniences that might in the abstract be imagined of it. During those centuries, indeed, England was the freest and wealthiest and most powerful country in the world. It was and its recalled example remains the inspiration for the constitutional arrangements of every other civilised country. Freedom and legislative despotism were reconciled by the fact that the rulers of this country did not try to insist in practice on the fullness of their power. They accepted the restraints of custom and of prudence, and the implications of their theoretical sovereignty were matters for the lawyers to reflect upon and the more intelligent conservatives to fear.
The problem is that, during the past hundred years, our rulers have increasingly insisted on their full powers. They have made so many laws that whole forests have been cut down to feed the government press. They have legislated in defiance of common sense and ancient right. They have taxed. They have regulated. They have centralised. In doing so, they have squeezed much of the life from what used to be our defining customs and institutions. They have placed us in various ways under the rule of foreigners. They have just largely abolished habeas corpus, and are taking the first unambiguous steps into a police state.
There was a time when the internal balance of Parliament might have served to check what can only be called a naked will to power. But, during the past hundred years, these balances have failed. Because of their understandable but unwise opposition to the programme of the Asquith Government, the Lords had their absolute veto removed by the Parliament Act 1911. They were left instead with a temporary veto during three consecutive sessions. The Parliament Act 1949 – passed using the procedure of the 1911 Act – reduced the delaying veto from three to two consecutive sessions. This was hardly a necessary amendment. Knowing their constitutional weakness, the Lords have tended since 1911 not to provoke the use of the Parliament Acts. They will amend and harry and protest, but will normally defer to whoever controls the lower house of Parliament.
The Commons will not resist. They did once, but this has not been their main function since the end of the 17th century. The main function since then of the House of Commons has been to form a caucus acceptable to the current public opinion, and from which a government has been drawn. It did much incidentally to hold our rulers to account, but was chiefly the place where the governing class competed for office. It now serves neither function. In its days of greatness, it was filled with conspicuous ability and integrity. It has now declined into a rubber stamp for bureaucratic despotism. Its less ambitious Members, by and large, are controlled by a combination of financial and sexual bribes combined with blackmail. With a few exceptions, they owe their seats to party machines that reward pliability. In one of the divisions the week before last on the Terrorism Bill, the Government majority was cut to 14. The Members may now congratulate each other, and the media give praise. But this division can hardly be taken as proof that parliamentary supervision is a living force. Bearing in mind the contents of that Bill, it is a scandal that the Prime Minister could count on that many votes, let alone that large a majority.
As for the parliamentary leaders, these emerge not through any display of abilities in Parliament, but because of connections possessed elsewhere and a fluency in modern public relations techniques to lie directly to the people. Though they stand in the chamber where Disraeli and Cobden and Churchill and F.E. Smith once stood, they possess all the spontaneity and persuasive force of a Kremlin teleprinter. Their speeches are written for them, their jokes rehearsed. In any real parliamentary body, they would sit silent and justly ashamed of their mediocrity.
For generations now, the more conservative lawyers have watched this decline of political quality with increasing distaste. At first, the Judges paid continued respect to the notion of legislative sovereignty. But while accepting every Act of Parliament as the highest law, they refined their modes of interpretation so that these Acts could often be given a meaning that they projectors had not intended; and they brought the increasing volume of secondary legislation within the scope of judicial review.
Then, in 2002, the Judges saw their chance. In 1995, the Government had made a law to criminalise the use of the English system of weights and measures and to impose the metric system in its place. This came into effect in January 2000, and a market trader in Sunderland was prosecuted for selling bananas by the pound. His case might otherwise have been an unreported act of oppression. Through some legislative oversight, however, the law by which he was punished had been made under the enabling clause of the European Communities Act 1972; and this, his lawyers went into court to argue, had been accidentally repealed at least in part by the Weights and Measures Act 1985.
According to what seemed the settled doctrine of our constitution, in which any conflict between Acts is resolved by giving precedence to the most recent, the metrication law would be struck down as ultra uires. Since the 1985 Act allowed the use of English measures, no power to abolish their use could be admitted from the 1972 Act. But this otherwise obvious conclusion could not reached. That would have entailed the political and diplomatic necessity of admitting that the country was in fundamental breach of the Treaty of Rome and might therefore have been withdrawn from the European Union since the passage of the 1985 Act. The only other alternative seemed to be for the judges to claim that the European Communities Act was uniquely exempt from repeal, and that formal sovereignty had passed out of the country.
What the Judges did, however, and to general astonishment, was to decide the case on their own motion. Without having heard any submissions on the point, they revived the apparently obsolete doctrine of fundamental law. There were certain laws, they said, so important – either to the structure of the Constitution or to the protection of liberty – that they occupied a special place. They could be amended or even repealed by Parliament, but only if Parliament should first make this explicit. No implied amendment or repeal would be recognised. The European Communities Act was placed among these fundamental laws – together with all the great constitutional statutes of our history. The implied repeal in the 1985 Act was ignored, not because the European Communities Act had passed sovereignty to Brussels, but because that Act was, by the rules of our own Constitution, given a special but not supreme status.
While the metrication law was upheld, this judgment was the first legal victory for the forces of conservatism. The protection of the European Communities Act was of no consequence, since the first euro-sceptic government we have in this country will leave the European Union by explicit repeal. The significance of the judgment is that it prevents the politicians from shredding the Constitution by stealth. Under this judgment, they can still shred it, but only by openly acknowledging what they are about.
The hunting judgment of last month must be seen as a continuation of this legal revolution. The use of the Parliament Act 1911 to force through the Parliament Act 1949 was ruled a proper use of the 1911 Act – it had been argued for the Appellants that an enabling statute should not be used for its own amendment—but only because the shortening of the veto from three sessions to two was neither a disproportionate nor, considering the parliamentary debates of 1911, an unexpected use of the Act. The main point in the litigation settled, the Judges then went on to announce two new and surprising constitutional doctrines.
First, they ruled that any Act passed using the procedure of the 1911 Act, as amended in 1949, is not primary but merely delegated legislation. The consensus of legal opinion in the 20th century was that such Acts were identical in status to Acts passed in the traditional way. Now, we have been told, they are not. Acts passed in the traditional way, of acceptance by Commons and Lords and then of Royal Assent, are valid in themselves. Acts passed using the procedure of the Parliament Acts draw validity from their having complied with the procedural requirements of those Acts. This being so, such Acts may be challenged in the courts on the grounds that they do not comply. They are as open to judicial review as any Statutory Instrument or local authority byelaw, and can be set aside if ruled a defective use of the legislation that enabled them.
Let me clarify what has been done. Under the old doctrine of parliamentary sovereignty, all Acts of Parliament were absolutely binding on the courts. Any conflict was resolved by taking the more recent Act as an amendment to or repeal of the earlier. Since 2002, we have three classes of Act. There are constitutional Acts, which can be amended or repealed only by the explicit wording of a later Act.. We have ordinary Acts, which can be impliedly amended or repealed, but until then are absolutely binding, unless they touch a constitutional Act. And we have Acts made under the Parliament Acts, which are not absolutely binding, but may be reviewed by the courts, and even set aside if they do not comply with the procedure laid down by the Parliament Acts.
Turning to the procedure, we come to the second new doctrine. The 20th century consensus set aside, the Parliament Acts cannot be used to force through any law whatever against the wishes of the Lords. The Judges explain:
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 … 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.
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. (para. 42-43)
The politicians cannot use their majority in the House of Commons to force through amendments to the Parliament Acts allowing elections to be delayed. Nor can they use the Acts as they stand to force through an abolition of the Lords. Nor can they use the Acts to make fundamental changes to the Constitution. What is the nature of these changes the politicians cannot make? In their final paragraph, the Judges observe:
What, if any, further power of amending the 1911 Act that Act authorises should not be determined in advance of an attempt to make a more significant amendment than that contained in the 1949 Act. It is, however, obvious that on our approach, the greater the scale of the constitutional change proposed by any amendment, the more likely it is that it will fall outside the powers contained in the 1911 Act.” (para. 100)
We need just one more judgment like this to be told that the constitutional Acts named in the 2002 judgment are in fact beyond amendment or repeal using the machinery of the Parliament Acts, and that the Lords have their absolute legislative veto, apparently taken away in 1911, restored where such Acts are concerned.
Either we have, or we are acquiring, a new constitutional settlement. Formal sovereignty remains in Parliament as a whole, but the House of Commons has been deprived of its supreme legislative competence. It must share power to some degree again with the Lords – but much more with the Judges. This is, I strongly believe, a welcome development. Look at the evil or simply absurd Acts of Parliament made over the past generation. Look only at the Bills now being hurried through the formality of their readings. Unless it is to be destroyed in whole, some remodelling of the Constitution is inevitable. Since there is neither will nor ability to make some internal correction to the abuses of Parliament, we must be grateful that the Judges have begun their own remodelling.
But though to be welcomed, this judicial remodelling may not be wholly the saving of the Constitution. The Judges have provided us with a new set of mechanisms to challenge the secretive despotic state that masquerades as the ancient Crown in Parliament. But such mechanisms can only be effective if there is some feeling that public opinion is on the side of the challengers. This does not require mass demonstrations. It does not mean that the overwhelming majority of people need to be against the Government. I doubt if politics in any time or place have worked in that way. Unless it is in matters that affect them directly and unambiguously – and perhaps not even then - most people are either ignorant of, or simply indifferent to, what their rulers have in mind for them. What I mean by public support is that the majority of those connected with or interested in the process of government should have at least a vague preference for the challengers. There must be some feeling on the part of our rulers that their actions are not popular. Let that not be present, and no constitutional balances, however ingenious, can be effective.
Now, it seems to be that public opinion wants the Government to provide services on a scale that requires an enlarged and broadly absolute state. Where the removal of our historic rights and national identity are concerned, the habits of thought and language of challenge seem to have been forgotten among all but an educated minority. Or it could be that the public at large is so intimidated by political correctness, or so deceived by lies about the dangers to be avoided, that the anger that I find in just about everyone I meet – an I meet several hundred people a week—cannot find its usual expression. Whatever the case, the Judges will not resist if they think they are acting alone.
A further difficulty is that while the Judges, and the House of Lords as revived by the Judges, have the right now to challenge the Government, they are both subject to packing by the Government. During the past eight years, Mr Blair has removed most of the hereditary Peers from the House of Lords, and in their place has appointed more life Peers than any other Prime Minister before him. The Government is also talking about making judicial selection more “inclusive” – which plainly means that it wants to appoint Judges from groups that are favourable to its project of cultural and political transformation. This is a dangerous weakness to our remodelled Constitution. But I am not sure if it is in the short term a very dangerous weakness.
When the hereditary peers were replaced after 1998 by hundreds of new life Peers, I assumed that the House of Lords would cease to be a problem for the Government. I was wrong. The traditions of the House remained strong enough for the newcomers to be largely assimilated Mr Blair has found to his cost that patents of nobility and ermine robes have mostly turned friends and clients into political opponents. There is the possibility that the Government will turn from packing to flooding the Lords with new Peers, and then legislating without further need of the Parliament Acts. But this would bring the Crown into politics. Though on the advice of the Prime Minister, every peerage is created by the Crown. If the power of creation were plainly being used to subvert the Constitution, it would be the sworn duty of Her Majesty or of her successor not to create the requested peerages. It may be Her customary duty to act only on advice. But it is Her legal duty, as set forth in the Coronation Oath, to respect our constitutional liberties. If that oath were to be so openly broken, it would be arguable that the Constitution as a whole had been dissolved, and that any citizen or group of citizens was at liberty to throw off such despotism, and to provide new guards for their future security.
Where the Judges are concerned, the weakness may also be more theoretical than real. Without any disturbance to the process of modern government, the House of Commons could easily be filled with people resembling the extras in one of Mr Romero’s zombie films. The Judges are a different matter. They are needed most of the time to adjudicate efficiently on what are often complex issues of law. No matter how wide the net is cast, there are only so many people at any one time qualified by education and ability to do this; and these are the people who already tend to become Judges. Our last ruler who resolutely tried to pack the Bench was James II. He found himself with a few able villains like Jeffreys, but otherwise with non-entities who failed their first real test, when they let themselves be overawed by the barristers.
A more likely weakness to the new scheme of things is that the Judges will not use the new powers they have given themselves to preserve the Constitution, but will attempt subversions of their own. They might follow the lead of their American counterparts, and begin finding “emanations” in our constitutional documents, so that Magna Carta might one day be found to give lesbian asylum seekers the right to abortions on demand paid for by the National Health Service. Already, some of their judgments have been of this nature. If in lesser degree than the politicians, the Judges have their own taint of political correctness. Democracy has been made a rubber stamp for despotism by absolute whim. There is no reason why judicial review should not similarly be corrupted.
But while this is possible, the real threat now to life, liberty and property comes from whoever controls the House of Commons. When the problem faced now is so great, future problems arising from its solution must be left to the future. For the moment, the Judges are creating a set of checks and balances against a system of legislative sovereignty that has been an occasional danger for over a century, and that, with this government of former student radicals, has become a daily nuisance.
The headline news is grim. We have just had imposed on us a Prevention of Terrorism Act more subversive of due process than any law made in peacetime since the 1650s. Add to this the Civil Contingency Act, the abolition of the double jeopardy rule and the allowance of similar fact evidence made by the Criminal Justice Act 2003, the Proceeds of Crime Act, and all the lesser invasions that have come and are yet to come from this current Parliament, and we might suppose all was already lost. And look before this Government, to the Thatcher and Major Governments – those, to be fair, laid the foundations on which the present structure of despotism is now being raised. But look beyond Parliament, to those quiet places where the lawyers gather and discuss what the politicians have in mind for us, and there is a counter revolution under way.
It may be worth giving our support and best wishes to those charismatic outsiders who are now beating on the doors of Parliament. It is still more worth while, though, to thank and support those old men in wigs, whose often pedantic and always long decisions about pounds of bananas and hunting bans are restoring to fact what once seemed the theory of a limited constitutional order..