THE BATTLE over the future of hunting now passes from Parliament to the courts. Then new Hunting Act faces two separate legal challenges that began the day after it was enacted by use of the Parliament Act.
Both challenges raise questions over the legal validity of the Act and the timing of its implementation. But supporters of hunting should are warned not to be too hopeful.
First, the Countryside Alliance went to the Administrative Court to seek leave to challenge the way that the Hunting Bill was enacted under the terms of the 1949 Parliament Act. This Act reduced the delaying power of the Lords effectively from two years to one. But this change was passed under the terms of the original 1911 Parliament Act, without the approval of the Lords.
Several leading lawyers, including Lord Donaldson of Lymington, a former Master of the Rolls, have questioned whether the 1911 Act can be amended by the Commons alone. That would mean that the 1949 Act is invalid.
The legal objection is that legislation passed under the Parliament Acts is delegated, not primary, legislation. It is a constitutional rule that a delegate cannot enlarge its power at the expense of the delegating authority: in other words, the Commons cannot reduce the powers of the Lords on its own. This view is disputed by other lawyers. When Lord Donaldson proposed a Bill to clarify the law in January 2001, his view was challenged by the late Lord Williams of Mostyn, the then Attorney-General, and by Lord Goodhart of the Liberal Democrats. They argued that it was fanciful to believe that any legislation passed under the 1911 Act was delegated, since Parliament could always change its procedures
The 1949 Act has not been challenged so far partly because it has only been used three times: over the War Crimes Act 1991, over the method of European Parliamentary elections in 1999, and by equalising the age of consent for sexual acts in 2000. Because of the passage of time, a successful legal challenge now would not affect the validity of these acts. Judges may also be wary of crossing the line between the judiciary and Parliament by challenging the will of MPs.
Moreover, the original 1911 Act said that the Speaker's certificate on its application shall not be questioned in any court of law.
Human Rights Act
The second challenge will be under the Human Rights Act. This issue, first raised in the Burns report of 2000 and then by the Joint Committee on Human Rights, covers the property rights of hunters, and, in particular, the absence of any compensation scheme from the legislation. The Government insists that nothing in the Act deprives people of their possessions and that there is, therefore, no obligation to compensate, although several MPs, including fervent anti-hunt campaigner Tony Banks agree that paying compensation would be a small price to pay for compliance.
To safeguard against vulnerability to a human rights challenge, ministers sought an 18-month delay to implementation of the Hunting Bill. This was both to give the hunting fraternity time to adjust and, probably over-optimistically, in the hope of reducing protests before a May 2005 General Election. The very final Lords vote against the 18-month delay opens up both challenges.
After the peers and MPs, it is now up to the judges.