There has been a remarkable new buoyancy among Labour MPs this week. This can be partly accounted for by the apparent improvement in Iraq, England’s footballing triumph over Croatia — and the fact that the government has not yet woken up to the full scale of the humiliation that awaits it at next month’s Leicester South by-election.
But for many Labour MPs the new mood of optimism has nothing to do with any of these things. It is entirely related to last Thursday’s promise from Peter Hain, leader of the House of Commons, concerning the Hunting Bill. ‘We have received an assurance from Peter Hain,’ said Sir Gerald Kaufman later, ‘which I trust totally.’
There was a faint but unmistakable note of menace in Sir Gerald’s words. Failure by Tony Blair to deliver a hunting ban this year would lead to an explosion in the Labour party. But that is unlikely to happen. MPs claim to have received private assurances from the Whips’ office that last year’s Bill banning foxhunting will shortly be reintroduced. Ministers confirm this.
According to government sources, the Bill will be tabled before the Commons summer recess, due to start on 22 July. It will receive its second reading when MPs return from their holidays in September, probably being rushed through the Commons in a single day, before going to the Lords.
It is not clear what fate awaits the Bill there. Peers may reject it entirely. Or they may amend it in committee, so that it resembles once again that original government Bill licensing hunting, introduced last year and then turned into an outright banning Bill by Labour MPs.
But none of this matters. Peter Hain intimated last week that the government intends to apply the Parliament Act. So long as the Bill is presented to the Lords 30 short calendar days before the end of the session, it can become law. All that is needed is for the Speaker to attach a certificate saying the Parliament Act applies. Then off it goes to Buckingham Palace for royal assent. According to this scenario — accepted by MPs of all parties — hunting will be criminalised well before Christmas.
There is little question that the proposed procedure amounts to an abuse of Parliament. It means that hunting will receive special treatment, quite different from practically every other issue. As a general rule, legislation is scheduled to a leisurely timetable, with long gaps between second reading, committee and report stage and then third reading, followed by a further interval for consideration in the Lords. This is all quite deliberate, so that all sides of the problem can be thought through, and all voices heard. That is why, in the normal course of events, only emergency legislation gets rushed through the Commons, typically relating to terrorism and national security.
Hunting qualifies on neither count. Tens of thousands of people depend on hunting for their livelihood, while millions of people support it. The Hunting Bill will be a specially bitter, divisive piece of legislation, and a responsible government should have ensured that it was properly aired. Rushing it through Parliament in the way business managers propose would be a reckless and provocative act, amounting to an incitement to civil disobedience. Indeed there is every sign that the government is bracing itself for the prospect. This year’s Civil Contingencies Bill, purportedly to do with terrorism, contains a mysterious clause permitting emergency powers to be exercised to prevent ‘destruction of plant life or animal life’. Preparations ahead of the looming foxhunting ban is the only plausible explanation.
The Countryside Alliance has already prepared the ground for a legal challenge to the ban. It is contemplating a two-pronged approach. The Bill raises massive human rights issues concerning compensation. These will be fully tested in the courts, and so will the abuse of Parliament implicit in the government’s use of the 1949 Parliament Act. The validity of this Act has frequently been doubted by lawyers, but never once tested in the courts. If the government presses forward with its ban on foxhunting, it will provoke a classic legal case that will solve one of great constitutional mysteries of the 20th century.
The problem dates back to the original Parliament Act of 1911, the famous piece of legislation which arose from the momentous clash between Asquith’s Liberal government and the House of Lords, later brought to life in George Dangerfield’s historical masterpiece The Strange Death of Liberal England. Before the passage of the 1911 Act, the phrase ‘Act of Parliament’ applied to only one thing — a Bill, passed by the Lords and Commons and then assented to by the monarch. The 1911 Act created a special procedure which enabled legislation to be presented to the monarch after being passed not by Parliament as a whole but by the Commons acting alone. This procedure applied to Bills passed by the Commons in three consecutive sessions of Parliament, and then rejected in the Lords.
The 1911 Act was scarcely used until in 1949 the Attlee government ran into its own difficulties with the House of Lords. Clem Attlee introduced his own Parliament Act, which reduced the time delay from three sessions of Parliament to two. The government is proposing to use Attlee’s 1949 Parliament Act to ban hunting this year. But serious legal opinion has always doubted the validity of that 1949 Act. The problem is that the Attlee government used the 1911 Act itself to press through the 1949 measure. Right from the very start Britain’s leading jurists pointed out that the 1911 Act — a piece of delegated legislation — did not permit the monarch and Commons acting alone to change its own terms. They pointed out that if they could, Britain would have effectively moved to a unicameral system and the Commons would have unlimited power to change British constitutional arrangements as it wished.
But the argument was never put to the test. The 1949 Act has been used only three times, once to push through the 1991 War Crimes Act, and more recently for the Sexual Offences Act and the European Parliamentary Elections Act. None of these cases gave rise to a legal challenge, though two years ago Lord Donaldson, former Master of the Rolls, introduced a Private Member’s Bill which tried belatedly to clarify the status of the 1949 Act.
It looks close to certain that at some stage this autumn the Speaker Michael Martin will be asked to sign the certificate claiming that the Hunting Bill is subject to the provisions of the Parliament Act. At that moment the Countryside Alliance will strike, demanding a declaration from the courts that the use of the 1949 Act is invalid. The stage is set for one of the most dramatic collisions between Parliament and the law courts since before the first world war.