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Last Updated: Monday, 24 January 2005, 10:32 GMT
Court hears arcane hunting debate

By Jon Silverman
Legal affairs analyst

The tortuous parliamentary battle over the future of hunting has been characterised by blood and thunder.

But when hostilities transfer to the High Court, the argument will become highly arcane.

Hunting in Oxfordshire
The legislation has provoked fierce debate and protest
The Countryside Alliance, through its eminent QC, Sir Sydney Kentridge, will say that the legislation banning hunting with hounds is invalid.

That proposition is straightforward enough. But the reasoning by which it is reached is anything but.

The 2004 Act was passed by the Commons even though it did not have the approval of the Lords.

This was made possible because the government invoked the rarely-used Parliament Act 1949.

The 1949 act states that legislation passed on two occasions by the Commons can become law without Lords consent if the second occasion is at least one year after it was first debated.

The act was brought in by the Attlee government, which was having trouble with the Lords over steel nationalisation.

'Invalid act'

Until then, the law concerning an impasse between the Commons and the Lords was governed by the first Parliament Act 1911, which said that a contentious bill had to be passed in three successive sessions with a gap of at least two years from the first debate.

The Countryside Alliance contends that the present government's use of the 1949 Act was unlawful because that act is itself invalid.

It says the original 1911 legislation did not give authority to the Commons to amend its own provisions.

It is clear that the court will spend much of its time poring over Hansard
So, when the post-war Labour administration did so, it was acting improperly.

The density of the case - and the above explanation leaves out some of the subsidiary points - hardly suggests that the public benches will be full for this hearing.

As a further deterrent, it is clear that the court will spend much of its time poring over Hansard to determine what was in the minds of the legislators of 1911 and 1949.

For more than two centuries, judges took the view that they should not look at Hansard to see what parliament meant by a particular piece of legislation.

Fortunately for the Countryside Alliance, this rule was scrapped by the Law Lords in 1992, so the challenge can go ahead.

Previous rejection

It has been said that this will be the first time that the Parliament Acts have been scrutinised by the courts.

But that is wrong. In 1996, a High Court judge, Mr Justice Potts, was asked to rule that the first prosecution brought under the War Crimes Act 1991 should be stopped because the legislation had been passed using the 1949 Parliament Act.

The judge rejected the argument and most constitutional experts think it will fare no better on this occasion.

Interestingly, the High Court will also hear written submissions from a supporter of the hunting ban, the League Against Cruel Sports.

The group is concerned that the Countryside Alliance might use the law, by obtaining an injunction, to delay the introduction of the ban on 18 February.

It is expected that the government's case will be put by the Attorney-General, Lord Goldsmith.

Legal argument of the pro-hunt campaigners

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