The implementation of prohibitive statute designed to prevent the hunting of foxes with dogs, was a decision made by the ruling party in a time when the public had seen enough wanton killing to stamp it out for good.
Under traditional constitutional processes, the act of passing a bill required full agreement of the House of Commons, the House of Lords and the Monarchy.
However, on this occasion the Parliament Act 1949 allowed for the creation of the Hunting Act 2004 without the acquiescence of the House of Lords, which became a motion sparking tremendous outrage from those in favour of the ‘sport,’ and resulted in this application for judicial review.
In seeking the reversal of this unprecedented ban, the appellants (Chairman of the Countryside Alliance, a professional huntsman and a self-employed farrier) relied upon the mechanism used to establish the 1949 Act to undermine its legality and have the courts permanently remove it; however, in order to clarify how the argument gained merit, it is necessary to understand how the founding Acts came into existence.
The Parliament Act 1911 was first enacted so as to empower the House of Commons to pass certain Bills without the consent of the House of Lords (subject to a predetermined period of time); after which, the applicable Act would enter into force with equal effect to that which would have required their consent.
This Act was the inevitable product of a previous form of rule so dysfunctional, that without it, the country ran risk of complete collapse or civil revolt; therefore, it was not designed without a degree of resistance from certain quarters.
Many years passed, until the Parliament Act 1949 made some amendments to the 1911 Act; which while considered minor, reduced the period of time in which the House of Commons would need to wait before achieving Royal Assent and subsequent enactment.
This itself, was brought into effect using the terms of section 2(1) of the 1911 Act, which expressed that:
“[T]he Bill shall, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified, notwithstanding that the House of Lords have not consented to the Bill.”The Parliament Act 1911
Therefore, despite not following the conventional methods of construction, the 1949 Act was without doubt, primary legislation and beyond reproach of those in opposition; as was the case when the Hunting Act 2004 was passed, as well as the War Crimes Act 1991, the European Parliamentary Elections Act 1999 and the Sexual Offences (Amendment) Act 2000 before it.
However, in a bid to dismantle the 2004 Act, the appellants drew attention to the wording, which failed to include obligatory reference to “the Lords Spiritual and Temporal and Commons,” but instead used “Queen’s most Excellent Majesty by and with the advice and consent of the Commons in accordance with the provisions of the Parliament Acts 1911 and 1949,”; upon which, they claimed the legislation was merely secondary in effect and therefore invalid.
Having been dismissed in their first hearing, the appellants continued to the Court of Appeal, which followed suit, before allowing leave to the House of Lords.
Here, the principles of legislative power, along with the chequered history behind the 1911 and 1949 Acts, were clearly defined, along with express clarification of the meaning and purpose of legislation as below:
“[A] Bill is not there to inform, to explain, to entertain or to perform any of the other usual functions of literature. A Bill’s sole reason for existence is to change the law. The resulting Act is the law. A consequence of this unique function is that a Bill cannot set about communicating with the reader in the same way that other forms of writing do. It cannot use the same range of tools. In particular, it cannot repeat important points simply to emphasise their importance or safely explain itself by restating a proposition in different words. To do so would risk creating doubts and ambiguities that would fuel litigation. As a result, legislation speaks in a monotone and its language is compressed.”
Reiterating both the origins and validity of the 1911 and 1949 Acts, the House continued to illustrate that regardless of discrepancies of wording, the power and application of the Hunting Act 2004 remained as resolute as the 1911 Act and any before it; and so, it was with the greatest of respect that the appeal was uniformly dismissed, while the court reminded the parties that:
“[S]tatutory interpretation is properly cognisable by a court of law even though it relates to the legislative process. Statutes create law. The proper interpretation of a statute is a matter for the courts, not Parliament.”