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ARCHIVE: Constitutional & Process Issues (Incl. Commencement)

Scrutiny & Parliament Acts 1911 & 1949

Why did the Government refuse to let the Bill be considered by committee in the House of Commons in September 2004?

The Hunting Bill had previously been considered in detail by committee in the House of Commons in 2003. In its original form, that Bill had been through all of the Commons stages, including detailed Committee scrutiny, and all the arguments on whether or not hunting should be banned were considered then at great length. The Bill had also been recommitted to amend it to the form in which it left the Commons. For the 2004 Bill to go through lengthy and detailed scrutiny all over again would have been tedious repetition for no purpose, and simply have added to the inordinate amount of Parliamentary time (estimated at more than 240 hours since 1997) that has been spent on this issue over the last few years. Similar procedures were adopted for the other Acts to which the Parliament Acts applied.

What are the Parliament Acts?

Normally, Acts of Parliament can only be given Royal Assent where the text is agreed between the two Houses of Parliament. The Parliament Acts 1911 and 1949 provide mechanisms for the views of the elected House of Commons to prevail where the two Houses cannot agree.

What are the main provisions of the Parliament Acts?

The key provisions are:

  • The procedure extends over two Parliamentary sessions (which may or may not be separated by a general election).
  • The procedure applies to most public Bills where in the first session the Bill is first introduced in the House of Commons, passes all its stages in that House, is sent to the House of Lords at least one calendar month before the end of the session and then fails to pass in that House.
  • A Bill may fail to pass in the House of Lords if it is rejected at 2nd or 3rd reading, if not all the stages have been completed by the end of the session or if no agreement between the two Houses is reached at the ping-pong stage when the House of Commons considers Lords Amendments. In the second session the House of Commons must pass the Bill in the identical form as it did in the first session. Only changes which the speaker certifies are necessary because of the elapse of time (eg the date of the Bill in the short title) may be made.
  • The House of Commons 3rd reading in the second session must not take place until at least the anniversary of the 2nd reading in the first session.
  • Where the House of Commons gives such a Bill a second reading in the second session, it is standard practice for it to pass resolutions to abbreviate its subsequent procedures on the Bill since it is the intention to pass it without further amendment.
  • The Bill must be sent to the House of Lords at least one calendar month before the end of the second session and it must fail to pass in the House of Lords as described above.
  • Where all these conditions apply, the Speaker may submit the Bill for Royal Assent with a certificate stating that the provisions of the Parliament Acts apply.

All of these conditions were met during the passage of the Hunting Act 2004.

Do the Parliament Acts require both Houses to adopt any special procedures?

The Parliament Acts make no change to the normal legislative procedures for most public Bills in either House. However, it is standard practice for the House of Commons, after giving a Bill its second reading in the second session, to pass a timetable resolution which effectively precludes debate on amendments at the Committee stage so that all stages after the second reading are taken as a formality, often on a single day.

When have the Parliament Acts been used in the past?

The following Acts have been passed under the Parliament Acts since the first such Act was passed in 1911:

  • Government of Ireland Act 1914 (in relation to implementing Home Rule);
  • Welsh Church Act 1914 (in relation to its disestablishment);
  • Parliament Act 1949 (to amend the 1911 Act);
  • War Crimes Act 1991 (in relation to ending prosecutions for war crimes);
  • European Parliamentary Elections Act 1999 (in relation to the method of proportional representation to be used);
  • Sexual Offences (Amendment) Act 2000 (in relation to changing the age of consent for homosexual activity).
Doesn't this show that the Parliament Acts are not intended to apply to the Hunting Bill?

Not at all. The Parliament Acts are designed to allow the will of the House of Commons to prevail where agreement cannot be reached. They can be used for any public Bill. The will of the House was clear on this issue, and there was no reason for the Parliament Acts not to apply in this case.

Haven't the Parliament Acts only previously been used in time of national crisis. Isn't this a misuse of power by the Government?

Absolutely not. The Acts which have been passed under the Parliament Acts are very varied in character and insufficient to set a precedent. They are certainly not all related to national crises or emergencies. There is absolutely no requirement that the Parliament Acts should only be used in the case of ‘constitutional’ or ‘emergency’ measures. Indeed, in the case of emergencies, it would be more likely that there would be clear agreement between the Houses and that the Parliament Acts would not been required.

Isn’t it true that no Bill which has spent less than 21 days in the Commons and which has not been completely scrutinised by both houses has ever had the Parliament Acts applied to it?

The Parliament Acts do not specify a precise number of days which a Bill needs to spend in the Commons. Parliament has spent substantially more that 21 days debating the hunting issue (over 240 hours of Parliamentary time since 1997, in fact) and, overall, the provisions in this Act have been thoroughly scrutinised by both Houses.

Isn’t it inappropriate to use the Parliament Acts to push through legislation which is not in the form the Government wanted?

No. The Parliament Acts say nothing about the preferences of the Government; they are about the will of the House of Commons. On a free vote, the House of Commons amended the Bill which the Government had introduced. The House of Commons was, therefore, entitled to rely on the Parliament Acts to ensure that its will prevailed.

Are there not questions about the validity of the Parliament Act 1949?

The Government is confident that the Parliament Act 1911 and the Parliament Act 1949 which amended it are both valid Acts of Parliament, and can properly be used to enable the will of the House of Commons to prevail in the face of disagreement between the two Houses. The dispute turns on the suggestion that legislation passed under the Parliament Act 1911 is a form of delegated legislation and that the 1911 Act’s procedures allowing an Act of Parliament to be passed without the consent of the House of Lords cannot, therefore, be used to amend itself (as was done with the 1949 Act). There is nothing in the 1911 Act to support this contention, and the 1911 Act as amended by the 1949 Act has been used on a number of recent occasions. The Countryside Alliance has challenged the legality of the Hunting Act on this point. This challenge was defeated in the High Court on 28 January 2005, and the Hunting Act was again upheld by the Court of Appeal on 16 February 2005. The Countryside Alliance took its case to the House of Lords for a final appeal in July 2005, and a decision is expected in the autumn.

Is it true that the Government said that it would not oppose the Countryside Alliance’s case?

Not at all. The Government consistently made it clear that it would vigorously oppose the Countryside Alliance’s attempt to strike out the Hunting Act 2004 on the grounds that the Parliament Act 1949 is allegedly invalid. It won the first round of this case in the High Court and this ruling was upheld in the Court of Appeal. What the Government said was that it would not oppose an application by the Alliance for an injunction to suspend the effect of the Act until its appeal was heard (on the grounds that 18 February was the date chosen by the House of Lords, which rejected the Commons’ proposal of an 18 month delay in commencement). However, the Court of Appeal rejected the Countryside Alliance’s application for an injunction on 16 February 2005, and the Act came in to effect on 18 February 2005.

Commencement

Why did the Government try to delay commencement?

Deferring commencement to July 2006 would have helped with practicalities. It would have given more time for those engaged in hunting to adjust to a life without it. It would, for example have allowed:

  • businesses reliant on hunting more time to refocus and diversify, for example into drag hunting, dealing with fallen stock or horse-related tourism.
  • hunt employees more time to find new jobs. The success of the government’s economic strategy generally means that jobs in most rural areas are readily available. The horse industry, for example, is generally buoyant at the moment.
  • those who use hunting as a method of pest control more time to put other pest control methods in place
  • more time for hunters to put in place humane arrangements, like dispersal and re-homing, for dogs used in hunting.

It would also have allowed the issue to be tested at the ballot box in a General Election. As it is, the issue was tested at the General Election in May 2005 and, to nobody’s surprise, was not a major factor in the overall result.

Why did you propose to treat hare coursing differently from fox hunting in terms of commencement?

The Government’s proposal for a delay in commencement to July 2006 did not apply to the provisions relating to hare coursing, because the violence and intimidation associated with illegal coursing events was a real and pressing problem in many areas of the countryside, and the Government was determined to give the police the tools they needed to crack down on the criminals involved.

Why did the Government say that it would not oppose the Countryside Alliance’s application for an injunction to delay commencement?

The Government vigorously opposed the Countryside Alliance’s court case against the validity of the Hunting Act 2004, and won the cases in both the High Court and Court of Appeal. However, it was relaxed about the date of commencement for the Act, as this date (18 February 2005) was insisted upon by the House of Lords, which failed to accept the date of 31 July 2006 voted for by the House of Commons. The Government, therefore, said that it would neither support nor oppose an application by the Countryside Alliance for an injunction in this particular case, and leave the decision in the hands of the courts. The Court of Appeal decided on 16 February to reject an application by the Countryside Alliance for interim relief, and the Act came into effect on 18 February 2005.

This set no precedent and does not mean that the Government would not oppose such an application in another related or unrelated case. The Government’s position was explained fully by the Rural Affairs Minister, Rt Hon Alun Michael MP, in the House of Commons on Tuesday 11 January.

Page last modified: 21 February, 2011
Page published: 28 September, 2004

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