R (Jackson) v Attorney General UKHL 56 is a House of Lords case noted for containing obiter comments by the judiciary acting in their official capacity suggesting that there may be limits to parliamentary sovereignty, the orthodox position being that it is unlimited in the United Kingdom.
The case, brought by John Jackson and two other members of the Countryside Alliance, challenged the use of the Parliament Acts 1911 and 1949 to enact the Hunting Act 2004. The appellants claimed that this Act was invalid as it had been passed using a legislative procedure introduced by the Parliament Act 1949 which allowed Acts of Parliament to be passed without the consent of the House of Lords if they had been delayed by that chamber for a year. This claim was based on the argument that the enactment of the Parliament Act 1949 was itself invalid, as it had been passed using a similar procedure introduced by the Parliament Act 1911.
A divisional court and Court of Appeal both rejected this claim, although the Court of Appeal held that Parliament Acts procedure could not be used to effect "fundamental constitutional changes". The case was appealed again to the House of Lords. In relation to preliminary issues, the court held that it had jurisdiction to examine the validity of the Hunting Act as a question of statutory interpretation (whether the 1911 Act could be used to enact the 1949 Act); standing was not challenged. On the substantive issue, the court ruled there were no limits to the type of legislation that could be passed using the Parliament Acts except for the express limitations contained in the legislation. The Parliament Act 1949 had therefore been validly passed using the 1911 Act and the Hunting Act was consequently also held to be an Act of Parliament. In obiter comments made in the judgment, Lord Steyn, Lord Hope and Baroness Hale suggested that there might be limits to parliamentary sovereignty (although Lord Bingham and Lord Carswell implicitly supported the orthodox view that there are no limits to parliamentary sovereignty).
Jackson prompted debate about the legitimacy of limiting parliamentary sovereignty and the theoretical justifications for the ruling. Alison Young suggests that the opinions could be explained by the Parliament Act 1911 modifying the rule of recognition defining valid legal documents or by the Act redefining Parliament in a manner that binds the courts. Christopher Forsyth argues that the Parliament Acts redefined Parliament to be a bicameral body for all legislation which also has a method of unicamerally legislating (except to extend Parliament beyond five years). Jeffrey Jowell proposes that there are two reasons for limiting parliamentary sovereignty – if the democratic legitimacy of the legislature were undermined by its acts or if the body attempted to remove fundamental rights in a democratic society – and cites support for these arguments from the judgment. The case was also criticised for claims made by Lord Steyn and Lord Hope that the doctrine of parliamentary sovereignty was solely a judicial creation.
Facts In the United Kingdom, bills are normally presented to the monarch for Royal Assent after they have been passed by both the House of Commons and the House of Lords, at which point they become primary legislation as Acts of Parliament. However, bills can also be passed using the Parliament Acts 1911 and 1949. The Parliament Act 1911 allowed bills to be presented for Royal Assent without the assent of the House of Lords if they had been passed by the House of Commons in three successive parliamentary sessions and there had been a delay of two years. The Parliament Act 1949, passed using the Parliament Act procedure, amended the 1911 Act to reduce the power of delay to two successive sessions and a period of one year. The legislation defines two exceptions in section 2(1) of the Parliament Act 1911: Money Bills can only be delayed for one month and "Bill[s] containing any provision to extend the maximum duration of Parliament beyond five years" are not eligible to use the procedure.
The Hunting Bill was introduced as part of Labour’s 2001 general election manifesto pledge to hold a free vote on banning fox hunting and would make it illegal to hunt wild animals in England and Wales with dogs except in limited circumstances. 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.
Judgment Divisional court
John Jackson, Patrick Martin and Harriet Hughes, all members of the Countryside Alliance, sought judicial review of the use of the Parliament Acts to pass the Hunting Act. They claimed that the 1949 Act had not been lawfully passed either because the 1911 Act could not be used to amend itself or because it provided a method of making delegated or subordinate legislation which could not alter the process of legislating. Consequently, they claimed, the 1949 Act had not reduced the delay specified in the 1911 Act and the Hunting Act, which was passed only in accordance with the requirements as amended by the 1949 Act, was invalid.
The case was heard in a divisional court by Lord Justice Kay and Mr Justice Collins in January 2005. In their judgment, they found that the legislation made using the 1911 Act could modify the Act, as indicated by the reference to "any Public Bill" [emphasis in original] being permitted to use the Parliament Acts (except for a limited number of express exceptions). Furthermore, they ruled that the 1911 Act did not create a method of making delegated legislation, but was instead a redefinition of the relationship between the House of Commons and the House of Lords. Moreover, there was found to be "no established principle applicable to this case which denies a power of amendment of the earlier statute in the absence of the express conferral of one specifically dealing with amendment". The Parliament Act 1949 was therefore found to have been validly passed using the Parliament Act 1911 and the Hunting Act was consequently also held to be an Act of Parliament.
Court of Appeal The case was appealed to the Court of Appeal, where it was heard by the Lord Chief Justice, Lord Woolf; the Master of the Rolls, Lord Phillips; and Lord Justice May in February 2005. In addition to acknowledging the limitations stated in the Parliament Act 1911, the court found that "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." Fundamental constitutional changes could therefore not be passed using the Parliament Acts, including extending the duration of Parliament and abolishing the House of Lords. However, the Parliament Act 1949, as a "relatively modest and straightforward amendment" to the 1911 Act that did not "extend to making changes of a fundamentally different nature to the relationship between the House of Lords and the Commons", was found to be within the scope of the Parliament Act 1911. The 1949 Act and, consequently, the Hunting Act were therefore held to be valid legislation and the appeal was dismissed.
House of Lords
The case was appealed again to the House of Lords, where it was heard by Lord Bingham, Lord Nicholls, Lord Steyn, Lord Hope, Lord Rodger, Lord Walker, Baroness Hale, Lord Carswell and Lord Brown on 13 and 14 July 2005. Nine judges were selected to hear the appeal, as opposed to the usual number of five, due to the significant constitutional issues the case raised.
Appellants' arguments Sir Sydney Kentridge, lead counsel for the appellants, summarised their arguments as follows:
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).
Standing The House of Lords' judgment was given on 13 October 2005.
Parties bringing judicial review must have sufficient interest in the challenged subject.Senior Court Act 1981, s 31(3). 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. 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.
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". The enrolled bill rule, affirmed in Pickin v British Railways Board, had established that the courts could not examine the procedure by which legislation had been passed. 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". 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".
However, the judges found that the court had jurisdiction because the case brought up a legal issue, that of statutory interpretation (whether the 1911 Act could be used to enact the 1949 Act), rather than being examination of parliamentary proceedings. Lord Bingham noted that the bill was not enacted by both Houses of Parliament, as it was in Pickin, and that "the appellants have raised a question of law which cannot, as such, be resolved by Parliament ... so it seems to me necessary that the courts should resolve it, and that to do so involves no breach of constitutional propriety". Lord Nicholls distinguished Jackson from Pickin as a case examining the correct interpretation of the 1911 Act, an evaluation for the courts rather than Parliament; Lord Hope concurred, noting that there was no absolute prohibition on courts evaluating the validity of Acts of Parliament; and Lord Carswell agreed that the case raised "a question of law which falls within the scope of courts of law carrying out their regular function". All nine judges accepted that the court had jurisdiction to consider whether the 1949 Act was valid.
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.
Status of legislation passed using the Parliament Act 1911