Anthony Barnett, editor of openDemocracy, writes: The oldest democratic constitution in the world Britains is in tatters. This has been apparent for some time for those with the eyes to see. Now, a legal bombshell has exploded beneath it.
The dust of legal language and erudite formulations may make it look like one more example of lawyers making things complicated and obscure. But an immense power struggle is taking place between the judiciary and the government.
It has been brought about by the Countryside Alliance (of which John Jackson is Chairman) seeking to defend the right of people in rural communities to hunt foxes if they so wish. The House of Commons, contrary to the stated wishes of the Government, voted to make hunting illegal. Britains second chamber, the House of Lords, twice threw out the proposal by putting forward a constructive alternative. Whereupon the House of Commons forced its view into law.
It did so by using the Parliament Act of 1949 and there are two Parliament Acts involved, those of 1949 and 1911.
The case is now known as The Queen on the application of Jackson and others v the Attorney General. The judgment of the Court of Appeal was delivered on 16 February 2005.
I asked John Jackson, a Board Director of openDemocracy, to comment on the case so far.
John Jackson: We argued that the 1911 Act did not give the Commons the power to impose upon the House of Lords whatever it wished (provided the 1911 Act was used in a procedurally correct way).
The case turns on whether or not the Parliament Act of 1911 so dramatically reduced the power of the House of Lords that it gave the House of Commons the dominant role in Parliament to such an extent that the House of Commons could use the 1911 Act to do anything that it wished with the British constitution.
Our lawyers argue that this was not the effect of the 1911 Act. It therefore followed that the Parliament Act of 1949 which had reduced the power of the House of Lords further and had itself been forced through using the procedures established by the 1911 Act was invalid.
The Attorney General, for the Government, argued that we were wrong. When questioned by the Court, he said that in his view the 1911 Act gives the House of Commons the power to force through extreme constitutional changes. By implication this could include abolishing the House of Lords or even extending the life of Parliament indefinitely.
The Court of Appeal has ruled against both parties, both us and the Attorney General. It has said that the Attorney General is wrong and that our side is more correct in our interpretation of the effects of the 1911 Act. The Court also said that it regards the further reduction in the power of the House of Lords resulting from the 1949 Act as a relatively modest and straightforward amendment and it therefore allowed the ban on hunting to remain.
The dynamite lies in the last paragraph of the judgment, where the Court of Appeal says:
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. It stated explicitly that the Commons could not use the Parliament Act, as the Attorney General for the Government implied, to abolish the House of Lords nor to extend the life of parliament beyond five years.
This judgment is, in effect, an assertion by the judiciary that it holds the power to determine how far the House of Commons can go in using the position that it achieved in 1911. That position was itself gained by brute force and was highly controversial. Following a general election called by the Liberal Government in which it spelt out to the electorate its intentions, the Liberal Prime Minister stated that if the Tories used their majority in the House of Lords to block the Liberal Governments proposals, he would ask the King to appoint sufficient new Liberal peers to swamp the Tory position in the Upper House.
It has been believed for many years that it was thoroughly unsatisfactory to have so much constitutional power sitting in the hands of the House of Commons and unrecognised by the community as a whole. Now the Court of Appeal has decided that the Commons only holds this power to the extent that the judges agree. Whether it is satisfactory constitutionally for the judiciary to have such discretion is clearly debatable.
Following the 16 February judgment, we asked the Court of Appeal for leave to appeal to the House of Lords. We were supported in this by the Attorney General. It is unlikely that the Attorney General had developed a sudden sympathy for the interests of fox-hunters. It is more likely that he was conscious of the implications of the judgment for a political party minded to set out proposals for changes in the powers of the House of Lords in its election manifesto.
The Court of Appeal did not give leave and the Appellants are now petitioning the House of Lords for leave to appeal. The matter is therefore still sub judice.
This saga gives a clear wake-up call that the United Kingdom is in need of a new constitutional settlement. The people of Britain must now find a way to get themselves a well-written democratic constitution which, in addition to protecting the basic rights of individuals and communities, sets out a clear division between the powers of the executive, the legislature and the judiciary. Without it, we are in darkness.
