R (Jackson) v Attorney General
R (Jackson) v Attorney General | |
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Court | House of Lords |
Full case name | Regina (on the application of Jackson and others) v Attorney General |
Decided | 13 October 2005 |
Citation(s) |
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Transcript(s) | House of Lords transcript |
Case history | |
Prior action(s) | Court of Appeal ([2005] EWCA Civ 126 , [2005] QB 579) |
Court membership | |
Judges sitting |
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Case opinions | |
The Hunting Act was therefore validly enacted using the Parliament Acts procedure.[1] : 1–2 | |
Keywords | |
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R (Jackson) v Attorney General [2005] UKHL 56 is a
The case, brought by Jackson and two other members of the
The
Jackson prompted debate about the legitimacy of limiting parliamentary sovereignty and the theoretical justifications for the ruling.
Facts
In the United Kingdom,
The Hunting Bill was introduced as part of Labour’s 2001 general election manifesto pledge to hold a free vote on banning fox hunting[13] and would make it illegal to hunt wild animals in England and Wales with dogs except in limited circumstances.[7]: [1]-[6] The bill was passed by the House of Commons on 3 December 2002 but rejected by the House of Lords. It was reintroduced to, and passed by, the House of Commons on 9 September 2004, but was significantly amended by the House of Lords. The House of Commons rejected the amendments on 18 November and the bill was granted Royal Assent later that day through the use of the Parliament Acts. The Hunting Act was due to come into force on 18 February 2005.[5]: [1]
Judgment
Divisional Court
John Jackson, Patrick Martin and Harriet Hughes, all members of the
The case was heard in the
Court of Appeal
The case was appealed to the
House of Lords
The case was appealed again to the
Appellants' arguments
Sir Sydney Kentridge, lead counsel for the appellants, summarised their arguments as follows:[7]: [7]
- Legislation made under the 1911 Act is delegated or subordinate, not primary.
- The legislative power conferred by section 2(1) of the 1911 Act is not unlimited in scope and must be read according to established principles of statutory interpretation.
- Among these is the principle that powers conferred on a body by an enabling Act may not be enlarged or modified by that body unless there are express words authorising such enlargement or modification.
- Accordingly, section 2(1) of the 1911 Act does not authorise the Commons to remove, attenuate or modify in any respect any of the conditions on which its law-making power is granted.
- Even if, contrary to the appellants' case, the Court of Appeal was right to regard section 2(1) of the 1911 Act as wide enough to authorise "modest" amendments of the Commons' law-making powers, the amendments in the 1949 Act were not "modest", but substantial and significant.
If the Parliament Act 1949 were found not to be an Act of Parliament on any of the above grounds, all legislation passed using the Parliament Acts since the introduction of the 1949 Act, including the Hunting Act, would also not be valid Acts of Parliament, being passed only in accordance with the 1949 Act (rejection in two successive sessions and a delay of one year) as opposed to the more onerous requirements of the 1911 Act (rejection in three successive sessions and a delay of two years).[3]: 2 [7]: [124]
Standing
The House of Lords' judgment was given on 13 October 2005.[7]
Parties bringing judicial review must have sufficient interest in the challenged subject.[16] Professor Mullen therefore suggests that it is at first glance surprising that standing was not contested: the appellants brought proceedings in their personal capacities, yet had not even been threatened with prosecution.[3]: 4 However, he suggests that no challenge was made because the legislation was likely to be challenged at some point and it was more convenient for the Government to have the legal issue decided before the Hunting Act came into force. Moreover, the recent expansion of standing for issues of public interest, such as the validity of an Act of Parliament, would have made a successful challenge more difficult.[3]: 4
Justiciability
Another preliminary issue, that of whether the House of Lords had jurisdiction to challenge the validity of an Act of Parliament, was also not argued by the Attorney General in a move described by Ekins as "an extraordinary concession".[11]: 112 The enrolled bill rule, affirmed in Pickin v British Railways Board,[17] had established that the courts could not examine the procedure by which legislation had been passed.[3]: 4 Furthermore, the Bill of Rights 1689 prohibits review of parliamentary proceedings outside Parliament and section 3 of the Parliament Act 1911 specifically provides that "any certificate of the Speaker of the House of Commons [certifying that a bill is eligible to use the Parliament Acts procedure] shall not be questioned in any court of law".[8]: 567 Lord Bingham therefore wrote that he "[felt] some sense of strangeness at the exercise which the courts have... been invited to undertake in these proceedings".[7]: [27]
However, the judges found that the court had jurisdiction because the case brought up a legal issue, that of
Mullen suggests that the failure of the Attorney General to challenge either standing or justiciability in the case could have wider implications by lowering the barriers to litigation and also by providing a precedent that people acting in their personal capacities can challenge the validity of primary legislation.[3]: 5
Status of legislation passed using the Parliament Act 1911
The appellants' primary argument was that legislation passed using the Parliament Act 1911 is
Limits of the Parliament Act 1911
The House of Lords rejected the Court of Appeal's finding that there was a distinction between non-fundamental constitutional changes, which could be passed using the Parliament Act 1911, and fundamental constitutional changes, which could not; Lord Bingham argued that "the ... solution finds no support in the language of the Act, in principle or in the historical record".[7]: [31] Of the nine judges, only Lord Carswell suggested that there may be implied limits to the use of the Parliament Acts, but acknowledged the difficulty of defining the extent of these restrictions.[7]: [178] [14]: 507–508
However, seven of the judges endorsed the express limitation that a statute extending the life of Parliament beyond five years could not be passed using the Parliament Acts; a further five agreed with Lord Nicholls that the House of Commons could not "do indirectly by two stages what the House [could not] do directly in one stage" by using the Parliament Acts to remove the express limitation and then enact legislation extending the life of Parliament,[7]: [58]-[59] [9]: 193 a restriction that was considered necessary to ensure the effectiveness of the express limitation.[7]: [61] [19]: 721 Lord Bingham was the only judge to explicitly reject the validity of this implied limitation, arguing that there were no reasons for preventing the alteration of the clause limiting the subject matter of full Acts of Parliament and that "it cannot have been contemplated that if, however improbably, the Houses found themselves in irreconcilable deadlock on this point, the government should have to resort to the creation of peers".[7]: [32] [10]: 136
Outcome
The House of Lords found that the Parliament Act 1911 did not have any limitations that would prevent it being used to enact the Parliament Act 1949. The 1949 Act had therefore validly amended the requirements for a bill to use the Parliament Acts procedure and the Hunting Act, which was passed in accordance with these amended requirements, was consequently also held to be valid; the appellants' appeal was dismissed.[1]: 2
Significance
Cosmo Graham argues that Jackson could be seen as "a constitutional curio, dealing with an obscure point, which is now effectively settled in favour of the Executive"; the case, from this perspective, is of no practical consequences given the limited use of the Parliament Acts and plans to further reduce the power of the House of Lords to delay bills. However, he suggests that Jackson is part of a trend of increased willingness by the judiciary to examine the claimed existence of executive powers and "to push at the borders of traditional techniques of judicial interpretation".[14]: 512–513
Limits to parliamentary sovereignty
Lord Steyn,
If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.[7]: [102]
However, Graham suggests that Lord Steyn's comments were limited to the use of the Parliament Acts and would not apply to legislation enacted using the ordinary legislative procedure. He also argues that it would be difficult to explain how courts would refuse to apply legislation unless human rights were involved, citing the example of the removal of judicial review: using fundamental common law principles to interpret legislation is very different from striking down legislation supported by the elected House of Commons, and would be even more contentious if the legislation only substantially modified judicial review procedure.[14]: 511
Lord Hope followed on from Lord Steyn.[3]: 14
Parliamentary sovereignty is no longer, if it ever was, absolute ... It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament ... is being qualified ... The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. The fact that your Lordships have been willing to hear this appeal and to give judgment upon it is another indication that the courts have a part to play in defining the limits of Parliament's legislative sovereignty.[7]: [104], [107]
Lord Hope also argued that Parliament should not be able to pass legislation that "is so absurd or so unacceptable that the populace at large refuses to recognise it as law".[7]: [120] [8]: 571 Jeffrey Jowell suggests that these comments were influenced by Lord Hope's position as a Law Lord from Scotland,[8]: 570–571 where it is unclear whether Parliamentary sovereignty is recognised following MacCormick v Lord Advocate, in which the doctrine was seen as "a distinctively English principle which has no counterpart in Scottish constitutional law".[24]: 3 [25]: 411
Baroness Hale similarly suggested that there may be limits to Parliament's legislative competence.[3]: 14
The courts will, of course, decline to hold that Parliament has interfered with fundamental rights unless it has made its intentions crystal clear. The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny.[7]: [159]
Although no judge expressly disapproved the opinions that there were limits to Parliament's legislative capabilities, Mullen suggests that Lord Bingham and Lord Carswell intended to impliedly rebut these suggestions.[3]: 14–15 Lord Bingham affirmed that "the bedrock of the British constitution is ... the supremacy of the Crown in Parliament"[7]: [6] while Lord Carswell stated:
I do not, and I have no doubt your Lordships do not, have any wish to expand the role of the judiciary at the expense of any other organ of the State or to seek to frustrate the properly expressed wish of Parliament as contained in legislation. The attribution in certain quarters of such a wish to the judiciary is misconceived and appears to be the product of lack of understanding of the judicial function and the sources of law which the courts are bound to apply.[7]: [168]
Justifying limits to the 1911 Act
Alison Young argues that Jackson
Christopher Forsyth suggests that the limitations of the 1911 Act could be explained by the common law constitutionalism theory, but argues that "if the judiciary frustrated by the failings of the elected legislature were to assert a power to hold Acts of Parliament invalid it would be stepping from law into politics and the outcome of its efforts impossible to predict".
Jeffrey Jowell proposes two justifications for limiting parliamentary sovereignty: legitimacy and the current hypothesis of constitutionalism. The argument from legitimacy highlights that Parliament's supremacy depends on the democratic and accountable nature of legislature; anything that undermines this status would invalidate the applicability of the doctrine. Jowell suggests that this view was expressly supported by Lord Hope[7]: [126] and impliedly supported in other opinions that legislation limiting Parliament's accountability would be challenged by the judiciary.[8]: 572 The argument based on the current hypothesis of constitutionalism reasons that no authority should be allowed to violate fundamental rights in a democratic society: they are essential features that cannot be removed, even by a supposedly sovereign Parliament. This view was also expressly endorsed in Jackson by Lord Hope, who regarded Parliament's sovereignty as subject to the rule of law.[7]: [107] [8]: 578–579
Parliamentary sovereignty as a judicial creation
Given that Parliament derives its powers from law, we have a normative reason to erase the concept of sovereignty from our constitutional landscape ... [This perspective] demands that Parliament may only exercise power in accordance with the principles – whatever they may be – that justify that power.[19]: 731
See also
Notes
- ^ Panara and Varney in Local Government in Europe write: "To date, the only case to have suggested a possible willingness of the courts to find certain legislation passed by Parliament to be unlawful is R. (Jackson) v. Attorney General. The House of Lords found, in an obiter dictum, that one day it might be that the courts could find a piece of legislation to be in breach of the principle of legality."[2]
References
- ^ S2CID 143986039.
- ISBN 978-1-135-02126-9. Retrieved 16 November 2020.
- ^ S2CID 144785570.
- ^ "Jackson and others (Appellants) v Her Majesty's Attorney-General- Judgment" (PDF). 13 October 2005. Retrieved 16 November 2020.
- ^ EWHC2005).
- ^ EWCA Civ2005).
- ^ UKHL2006).
- ^ a b c d e f g h i Jowell, Jeffrey (2006). "Parliamentary sovereignty under the new constitutional hypothesis". Public Law. 2006 (3): 562–580.
- ^ ISSN 0033-3565.
- ^ .
- ^ a b c d e Ekins, Richard (2007). "Acts of Parliament and the Parliament Acts". Law Quarterly Review. 123 (1): 91–115.
- ^ "Legislation – UK Parliament". UK Parliament Website. Retrieved 26 July 2012.
- ^ "Labour launches 'ambitious' manifesto". The Guardian. 16 May 2001. Retrieved 6 August 2012.
- ^ S2CID 146672294.
- ^ House of Lords Select Committee on the Constitution (15 March 2006). "Constitutional aspects of the challenge to the Hunting Act 2004" (PDF). House of Lords Constitution Committee reports. The Stationery Office. Retrieved 12 August 2012.
- Senior Court Act 1981, s 31(3).
- ^ Pickin v British Railways Board, 1974 AC 1 (UKHL 1974).
- ^ ISBN 978-0-19-928419-1.
- ^ .
- ISBN 978-1-4058-7350-5.
- R v Secretary of State for the Home Department, Ex p Simms, 2000 2 AC 115(UKHL 1999).
- ^ Lord Woolf (1995). "Droit Public – English Style". Public Law. 1995 (1): 57–71.
- ^ Laws, John (1995). "Law and democracy". Public Law. 1995 (1): 72–93.
- ^ Lord Hope (28 June 2011). "Sovereignty in Question" (PDF). The Supreme Court. Retrieved 18 August 2012.
- ^ MacCormick v Lord Advocate, 1953 SC 396 (SC 1953).